Baughman v. American Tel. and Tel. Co.

Decision Date14 December 1990
Docket NumberNo. 23399,23399
CourtSouth Carolina Supreme Court
PartiesFrank Joe BAUGHMAN, et al., Appellants, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a Corporation, and AT & T Nassau Metals Corporation, a Corporation, Defendants, of whom AT & T Nassau Metals Corporation is Respondent. (and 3 other cases) . Heard

[306 S.C. 103] Sheldon E. Bernstein, Del Rey Beach, Fla., Lawrence M. Mann, Washington, D.C.; and Frank B. Register, Jr., Lexington, for appellants.

Stephen G. Morrison, Richard H. Willis and Laura S. Campbell, Columbia, for respondent.

CHANDLER, Justice:

These actions were originally commenced by 271 plaintiffs claiming personal injury, property damage, and nuisance caused by pollution from a refinery operated by Respondent AT & T Nassau Metals Corporation (Nassau). Presently, 187 plaintiffs (Plaintiffs) remain in the case. They appeal orders granting Nassau's motions for partial summary judgment and denying their motion to set aside prior partial summary judgments.

We affirm in part, reverse in part, and remand for further proceedings.


The actions were commenced on July 11, 1985. Simultaneously with service of the Summonses and Complaints, Plaintiffs served interrogatories seeking, among other things, to discover the chemicals emitted from Nassau's plant. Nassau answered and served its first set of interrogatories. Over the next two years more than 300 depositions were taken, including one for almost every plaintiff in the case.

On June 26, 1987, Nassau served its second set of interrogatories. Interrogatory 6 asked for "any medical doctor who has diagnosed any illness or medical condition as being proximately caused by exposure to materials emanating from the Nassau facility...."

Both Plaintiffs and Nassau sought at various times to compel the other to respond or provide more complete answers to various interrogatories.

On July 22, 1987, the trial court ordered Nassau to furnish complete answers to several of Plaintiffs' interrogatories, and ordered Plaintiffs to respond to Nassau's first set of interrogatories, or provide supplemental answers thereto. This was followed by an order, dated September 29, 1987, which required Plaintiffs to answer certain of Nassau's second set of interrogatories, including Interrogatory 6, and required Nassau to provide summaries of information sought by Plaintiffs' interrogatories.

On October 12, 1987, Nassau filed the first of several motions for partial summary judgment, this on the personal injury and property damage claims of a single plaintiff, Harold Ford. Plaintiffs subsequently moved for a protective order "staying all dispositive motions until discovery is completed...." At hearings on these motions, counsel for Plaintiffs conceded that a medical expert who could testify to the necessary degree of medical certainty had not then been obtained, contending additional time was necessary to locate such an expert. Trial court nevertheless granted Nassau's motion on the ground that Ford had made no showing his injuries were proximately caused by Nassau.

On December 8, 1987, Plaintiffs moved to have the grant of partial summary judgment reconsidered. Nassau moved for sanctions due to Plaintiffs' failure to answer the second set of interrogatories as required by the order of September 29, [306 S.C. 105] 1987. At the hearing which followed, Plaintiffs' counsel disclosed a recently-discovered expert witness, Dr. Elaine Panitz, and submitted a letter from her, dated December 11, 1987, in which she made a preliminary assessment of the case and recommended further study. Counsel took the position that summary judgment was premature until Plaintiffs were "given the opportunity to develop this subject...."

By order dated January 27, 1988, the trial court denied Plaintiffs' motion for reconsideration and for a protective order. It granted Nassau's motion for sanctions, stating:

It is, therefore, ordered that the plaintiffs shall not be allowed any medical testimony, witnesses, documents or exhibits

of any kind required by defendant's second set of interrogatories and not now fully disclosed in their answers to interrogatories or depositions. Plaintiffs are precluded from developing facts in the trial of the case through sources they have failed to reveal heretofore as required by my Order of September 29, 1987. The defendant is entitled to, and has been deprived of, information necessary or at least desirable to its defense, all to its prejudice

Notwithstanding the foregoing, Nassau took Dr. Panitz's deposition on February 11, 1988. Dr. Panitz testified she had not formed an opinion concerning causation, but she did specify the type of study she thought would be appropriate.

Thereafter, Nassau moved for partial summary judgment on several additional personal injury and property damage claims. At the hearing on this motion, Nassau's counsel asserted that Dr. Panitz's testimony was precluded by the order of January 27, 1988. Counsel for Plaintiffs responded that the order did not apply to witnesses procured in the future. In a subsequent order filed on August 22, 1988, granting Nassau's motion for partial summary judgment, the trial court stated:

At the hearing a discussion was had relative to the possibility of procuring additional expert medical testimony on behalf of the Plaintiffs from Dr. Elaine Panitz of New Jersey and perhaps others. Any evidence, by deposition or otherwise, inconsistent with my Order of January 27, 1988, need not be pursued and is hereby forbidden.

[306 S.C. 106] In the meantime, on July 29, 1988, Nassau served a Request for Admissions upon each of the plaintiffs. Altogether, the requests totalled approximately 900 pages. Many required Plaintiffs to provide certain information in the event the request was denied. Within the time for responding, 1 Plaintiffs filed a motion for protective order, alleging the requests were "so voluminous and so framed that they are clearly unduly burdensome" and contending they were "not in proper form" because their effect was "nothing more than interrogatories (guised as requests for admission) seeking to ascertain knowledge of facts."

At the October 13, 1988, hearing on Plaintiffs' motion for protective order and on a motion later filed by Nassau for partial summary judgment on six more personal injury claims, Nassau served a Supplemental Response to Plaintiffs' Motion for Protective Order. It contended the requests should be deemed admitted for Plaintiffs' failure to respond in a timely manner. Also at that hearing, Plaintiffs' counsel, in response to the summary judgment motion, again asserted that additional time was necessary to develop Dr. Panitz's testimony. By order dated October 28, 1988, the trial court denied Plaintiffs' motion for protective order and, simultaneously, deemed Nassau's requests admitted. It also granted Nassau partial summary judgment on the six personal injury claims.

On October 24, 1988, Plaintiffs served responses to Nassau's requests for admissions. Thereafter, they moved that these responses be accepted and the deemed admissions withdrawn.

Plaintiffs also moved pursuant to Rule 54(b), S.C.R.C.P., to set aside all partial summary judgments which had been granted for lack of medical evidence of permanent injuries. The motion was based upon a notarized letter from Dr. Panitz, dated November 29, 1988, which states in part:

3. Review of Dr. Lieberman's medical records on 18 plaintiffs reveals that more than 90% have similar respiratory and neurologic complaints, and more than 80% have similar eye and skin complaints. This constellation of neurologic, respiratory, eye and skin complaints is entirely consistent with chronic exposure to volatile organic compounds (VOC).

[306 S.C. 107] 4. To investigate the issue of chronic VOC exposure, 15 of the 18 plaintiffs had preliminary serum testing for antibodies to formaldehyde, trimellitic anhydride, and isocyanates.... The existence of formaldehyde antibodies in this group of Gaston residents is clear indication of

formaldehyde exposure. Some of the residents also have antibody titers to TMA and isocyanates

4. [sic] In my opinion, there is considerable evidence that the Gaston residents are suffering health effects from chronic exposure to airborne volatiles emitted from uncontrolled burning of plastics by Nassau Metals. This problem may well have originated from the burning of plastic scrap in the blast furnace (1979-1984), before the pyrolysis unit came on line. Unfortunately, any residents sensitized to formaldehyde during that time period may never be able to live in the vicinity of the AT & T plant without reacting to the presumably lower levels of formaldehyde now being emitted.

Plaintiffs also relied on this letter in response to Nassau's motion, then pending, for partial summary judgment on all remaining personal injury and property damage claims.

After a hearing, the trial court denied Plaintiffs' motion to vacate the prior summary judgments, and also their motion to have the deemed admissions withdrawn and the October 24, 1988, responses substituted. Additionally, the court granted Nassau's motion for partial summary judgment on the remaining claims for property damage and personal injury. It rejected Dr. Panitz's letter as being precluded by prior orders filed on January 27 and August 22, 1988, and, alternatively, as failing to meet the "most probably" standard for receiving medical evidence of causation. Finally, the trial court granted partial summary judgment for Nassau on the nuisance claims of four plaintiffs, Floyd and Edna Busbee, and O.M. and Jacqueline Shealy.


We address the following:

I. Discovery involving interrogatories and requests for admissions; and

II. Grant of summary judgments.

A. Interrogatories

Plaintiffs contend the trial court erred in ruling that...

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