COLUMBIA, S.C. (Legal Newsline) - The judge in charge of South Carolina’s swelling asbestos docket agreed to delay a trial against Anglo American and its De Beers diamond unit over whether they participated in a decades-long scheme to hide assets from U.S. plaintiffs but rejected Anglo American’s central argument, which is that the U.K. mining giants shouldn’t be in her courtroom at in the first place.
“I want to find a reasonable way to move this trial forward at this point,” said the judge at the beginning of a hearing in Columbia, S.C. She went on to overrule objections by defense lawyers that they needed much more information from the other side, including expert witness reports, before they would be prepared for trial.
The judge did agree to postpone the trial from Dec. 9 until early February. She did so only after addressing concerns that South Carolina Speaker of the House G. Murrell Smith, who works on the plaintiffs’ side, might be in legislative session by then.
Last year, Judge Toal appointed local personal injury attorney Peter Protopapas over Cape Plc, a onetime South African asbestos mining company whose corporate successor is now owned by a French billionaire. She gave Protopapas broad powers to demand documents and sue third parties for money to pay asbestos claims, which Protopapas did, including Cape’s corporate parents and Anglo American.
Since then, Judge Toal has rejected all arguments she lacks jurisdiction over the foreign companies, which are based in the U.K. and never sold asbestos in South Carolina. She has also issued unusual rulings, including one finding that since Cape refused to answer claims in her court all of the allegations Protopapas made against third parties like Anglo American are accepted as fact.
Anglo American is seeking information from Protopapas about the basis for his claims it participated in an asset-hiding scheme with Cape, which it never owned or controlled. Scott Balber of Herbert Smith Freehills, representing Anglo American, said discovery so far has only revealed publicly available materials, none of which support the allegation there were legal arrangements between the companies to share liability for asbestos.
At one point Balber said if the only supporting information was from Google searches “or an article in Sports Illustrated,” that would be fine, only the defendants need to know that.
Meanwhile, Balber's clients say they have spent millions of dollars to produce 70,000 pages of documents and agreed to review corporate records all the way back to 1950 to see if anything could show they are responsible for Cape's asbestos liabilities.
Anglo American also wants details of Protopapas’ communications with lawyers for plaintiffs named Tibbs who are suing Cape. Defense lawyers say that underlying case has been settled, which Protopapas denies.
Attorney John T. Lay, who represents Protopapas and at the hearing likened deaths and illnesses from asbestos to the Holocaust, suggested the communications might be protected by the attorney-client privilege, which would be surprising since the privilege only covers lawyers and their clients. Protopapas represents the company Tibbs is suing.
“Mr. Lay and Tibbs’ lawyers are adversaries. There’s no privilege between them,” said Balber.
Judge Toal wasn’t so sure, saying there could be “some real danger points” with allowing Anglo American to see the emails.
“I’ll certainly be interested to receive research on it,” she said, delaying a decision until further briefing.
Defense lawyers have tried in vain to have Judge Toal recused from her role overseeing all asbestos litigation, citing a history of issuing pro-plaintiff rulings and courtroom demeanor that appears to show sympathy toward plaintiff lawyers and hostility to defendants, especially insurance companies. She tried to temper that criticism in Tuesday’s hearing, revealing she had personal history on the other side, not only as a defense attorney but when her family’s sand mine was in the crosshairs over silicosis.
“I had to live through a revival” of the silicosis litigation when her mother was one of the surviving owners of the family business, Judge Toal said. But rigorous attention to product identification ultimately showed her family’s sand wasn’t present at the worksites where plaintiffs got sick, she said.
“That was as it should be. That’s how the law works,” the judge said. “And that’s how the law’s gonna work in this case.”
The judge also mentioned what she called “pejorative” descriptions of Speaker Smith’s involvement in the case and how the December trial date was set to avoid conflicting with the legislative calendar.
“Mr. Smith has appeared when he’s required to,” the judge said, going on to mention how she did the same during her 15 years in the South Carolina legislature. While she talked, one of the lawyers for Protopapas was receiving texts from Rep. Smith confirming his schedule for next year.
Defense attorneys have repeatedly tried to remove cases to federal court and appeal Judge Toal’s rulings, all to no avail. She is especially angered by Cape’s attempt to block Protopapas by suing him in U.K. court, calling that tactic “particularly problematic.”
She also warned Cape’s lawyers, who remained silent throughout the hearing, not to interfere with the revised trial schedule. Judge Toal has a history of handing down harsh sanctions against defendants who challenge her or appeal her rulings, calling them frivolous and a waste of time. She is currently mulling a $2.2 million legal bill submitted by Morgan Lewis for work it did on a successful sanctions order against Cape’s French owner, Altrad Group.
“I will file my scheduling order and pray the biggest prayer I have we don’t have any other people involved in this matter who try to appeal my order,” she said. “If they try to do anything along those lines, as they have once already, that will be a real problem.”
After the hearing, Lay and Balber declined comment.
Editor's note: Robert Morris contributed to this report.