COLUMBIA, S.C. (Legal Newsline) - A South Carolina judge criticized as overly generous to plaintiffs in asbestos cases is making defendants pay whatever she feels, despite what juries and federal courts say, and was just given approval to do so by the state Supreme Court.
It ruled Aug. 21 Judge Jean Toal was justified in increasing a jury verdict by more than six times, in a decision the court’s chief justice criticized as unprecedented and excessive.
Toal, herself a retired chief justice of the state Supreme Court, decided a jury’s award of $300,000 to an asbestos plaintiff and his wife was too small and ordered it increased to $1.9 million. Her order gave the defendants a choice: Pay the higher amount or risk a new trial.
The defendant companies appealed to the South Carolina Supreme Court but a majority there affirmed Judge Toal’s decision, saying it was supported by evidence the jury failed to compensate the plaintiff and his wife fully for their damages.
Judge Toal applies a doctrine known as nisi additur, under which judges in some states can increase a jury’s award to what they consider a reasonable amount. The practice is banned as unconstitutional in federal courts.
She had also done this in a case brought by the Estate of Steven Stewart. Defendants asked to consolidate them but were denied, leading to a February state Supreme Court decision that affirmed Toal's actions, which included adding $400,000 to a jury's $600,000 award for survival damages.
This most recent decision drew a partial dissent from Chief Justice John Kittredge, who said Judge Toal increased the jury’s damages far more than the court had ever approved in the past. Under nisi additur the judge is only allowed to override a jury’s decision if the award lies in a vaguely defined zone between “merely inadequate” and “grossly inadequate.”
“Consistent with our precedents, such an increase here in no manner reflects a response to a `merely inadequate’ jury verdict,” wrote the chief justice. “In fact, it represents an increase far beyond any additur this Court has upheld.”
The American Tort Reform Association, in a brief urging reversal, said the decision will encourage plaintiff lawyers to flock to South Carolina for their asbestos cases, which have surged in the state since Judge Toal was assigned that docket in 2017. Recent Legal Newsline coverage of her court noted she wouldn't allow talc defendants like Johnson & Johnson to tell a jury the plaintiff worked somewhere later condemned because of asbestos, leading to a $63 million verdict.
“This court should not permit trial courts to prop up weak evidentiary support and engage in speculative analyses to substantially increase a verdict simply because the trial judge disagrees with a jury’s award,” ATRA said in the brief.
The majority opinion, by Justice John Cannon Few, acknowledged Justice Kittredge’s concerns and cited “the sanctity of a jury’s verdict.” But the majority nevertheless decided Judge Toal was justified in disregarding the jury’s decision based on evidence presented at trial.
Plaintiff Beverly Dale Jolly was an inspector at Duke Energy nuclear plants between 1980 and 1984 who was diagnosed with mesothelioma, a cancer of the chest lining associated with asbestos exposure, in 2019. He sued a number of companies including Fisher Controls and Crosby Valve, claiming he was exposed to asbestos powder from crews who were grinding flanges around him.
Jolly and his wife settled with other defendants for $2.3 million before trial. The jury ordered Fisher and Crosby to pay him $200,000 and his wife $100,000 for loss of consortium. Judge Toal considered that too little and increased the award more than sixfold to $1.9 million, offering the defendants either accepting the higher amount or submitting to a new trial.
Judge Toal was allowed to rely on an expert’s estimate of $142,000 in medical bills even though Jolly didn’t provide any documentation to support it. Given the other defendants agreed to pay $2.3 million, the majority said, the jury awards clearly “started at a point that was quite low.”
The defendants also appealed Judge Toal’s decision allowing the Jollys to unilateral designate a third of the $2.3 million in prior settlements as payments toward an expected wrongful death case after he dies. The defendants said this violated state law requiring courts to reduce damages a company must pay by the amount the plaintiff already obtained in other settlements.
Judge Toal ruled the wrongful-death claim was different than the claims Fisher and Crosby were found liable for.
Justice Kittredge criticized this as misreading state law on such set-asides. It is fine for a plaintiff to make such allocations in a written settlement agreement, he wrote. But the statute says any allocation must be “stipulated in the release.”
“A plaintiff will naturally desire to apportion a settlement to his advantage, and the law does not frown upon it,” he wrote. “That is a far cry from waiting to see what the verdict is before creating an allocation.”
Judge Toal has a history of making pro-plaintiff rulings in asbestos cases and has long frustrated defendants who say they can't get a fair shake in her court. On at least one occasion, she invoked the state's "13th Juror" doctrine and ordered a new trial after not agreeing with the jury's verdict.
This happened after the jury ruled for a defendant Toal made unable to mount most of its defenses because documents were destroyed in a fire.
The Jollys were represented by Dean Omar Branham Shirley, a Dallas law firm that has brought a large number of asbestos cases to South Carolina since Judge Toal was assigned the docket there.