South Carolina’s asbestos-litigation industry is aiming at Johnson & Johnson, adding supposedly deadly talcum powder to the long list of products plaintiffs claim made them sick. And if history is any guide, J&J is in for a rough time in the Palmetto State.
Not only is the judge in charge of all asbestos litigation in South Carolina, Judge Jean H. Toal, notoriously pro-plaintiff, but state government is filled with personal-injury lawyers who dominate the process of choosing judges and sometimes even appear in Judge Toal’s court. Republican Speaker of the House G. Murrell Smith, for example, represents a court-appointed receiver who has pulled in tens of millions of dollars in settlements from defunct asbestos defendants by suing their former insurers.
This is the same Rep. Smith who selects five of the 10 members of the Judicial Merit Selection Commission, which recommends candidates that are voted on by the entire legislature. A reform measure passed in June gave the governor four picks on an expanded 12-member commission, although that doesn’t go into effect until next year.
“The lawyer legislators in this in this state are way overrepresented compared to other occupations, and they wield a lot of control,” said Rick Brundrett, news editor of The Nerve, a publication of the South Carolina Policy Council that covers legislation and the judicial branch.
“Every some year lawmaker introduces a judicial reform measure, but the problem is they won’t give up their control. So it dies.”
With more than 40 talc lawsuits teed up in South Carolina courts, J&J will face an uphill task winning basic evidentiary rulings in this environment, let alone getting cases dismissed. It’s already trying to overturn a $63 million verdict against it by a man who claims talc caused his cancer, even though he worked in a building that was condemned for asbestos contamination.
Judge Toal, a former Chief Justice of the South Carolina Supreme Court, makes no secret of her favor for plaintiff attorneys and dislike for insurance companies. Defense lawyers say she advanced the schedule for a key trial into December to accommodate Smith’s legislative schedule, a suggestion the judge described as “pejorative” at a recent hearing.
Regardless of whether judges actually favor one side over the other in tort litigation, corporate defendants feel the system is rigged against them. At a hearing last fall, South Carolina Attorney General Alan Wilson described a conversation with the chief executive of a large out-of-state corporation that was sued, successfully, by a man who blamed his injuries on a free industrial training session the company had offered municipal employees 15 years before.
The CEO told AG Wilson he knew the fix was in when a lawyer-legislator Wilson declined to name strode into the courtroom and was told by his partner: “The judge is here, you should probably go out and talk with him.” After the legislator returned, the CEO said, “we lost every motion” and ultimately the case.
“We don’t know what happened when that legislator left the courthouse and met with the judge,” Wilson told lawmakers. “The perception left was that if you’re a business and you see a legislator on the other side, then you’re gonna get shaken down.”
The South Carolina Senate Judiciary Committee is a good example of the sway personal injury lawyers have over the judicial process. Among its 23 members are 12 lawyers, 10 of them personal-injury attorneys. The chairman, Republican Sen. Luke Rankin, is a personal injury lawyer whose website brags: “Serious Injuries. Serious Results.” Under the somewhat reformed judicial selection process, he will now select two members of the 12-member judicial selection committee.
In a signing statement, Gov. Henry McMaster described this year’s modest reform of the selection process “a first step – but by no means the last” in dismantling a system where lawyer–legislators are “perceived as receiving favorable treatment when they appear in court before the judges they select and elect.”
He criticized the legislature’s failure to reduce the influence of lawyers on the selection committee, saying “at bottom, JMSC should not be controlled by legislators.”
The South Carolina Bar counts 28 lawyer-legislators in the 124-member House and 19 in the 46-member Senate. One byproduct is a state Supreme Court that regularly, if not always, hands down decisions that favor the expansion of tort liability at the expense of business, helping the state earn a No. 5 spot in the American Tort Reform Association’s “Judicial Hellholes” ranking. One justice - John Cannon Few - has a background as a personal-injury lawyer, working with his father, a noted products liability lawyer, in the 1990s. Justice George C. James was a partner in Speaker Smith’s law firm until 2006.
The high court in August endorsed Judge Toal’s use of a procedure known as nisi additur – banned in federal courts – to override a jury’s decision and increase an asbestos judgment more than sixfold. Last year, the court ruled companies can be held liable for the actions of independent contractors, which the defendant warned could “open the floodgates” for lawsuits claiming defendants didn’t do enough research on contractors they hire.
A few years ago, the court loosened the requirements for collecting damages for civil conspiracy in a decision one justice decried as unleashing an “unrestrained menace on the public as an independent tort.”
Business groups tried in vain this year to pass a measure reforming South Carolina’s joint-and-several liability regime, which has been particularly punishing to small bar and restaurant owners who can be held liable for paying an entire judgment in cases over drunk-driving accidents if they are as little as 1% at fault. Senate Bill 533 failed on a cloture vote in April, forcing backers to start the process all over again next year at the beginning of the two-year legislative cycle.
“Obviously, tort reform died on the vine this session,” said Brundrett of The Nerve.