Jolly v. Gen. Elec. Co.

Decision Date01 September 2021
Docket Number5858
PartiesBeverly Dale Jolly and Brenda Rice Jolly, Respondents, v. General Electric Company, et al., Defendants, Of whom Fisher Controls International LLC and Crosby Valve, LLC are the Appellants. Appellate Case No. 2017-002611
CourtCourt of Appeals of South Carolina

Heard November 2, 2020

Appeal From Spartanburg County Jean Hoefer Toal, Acting Circuit Court Judge

C Mitchell Brown, Allen Mattison Bogan, James Bruce Glenn, and Nicholas Andrew Charles, all of Nelson Mullins Riley &amp Scarborough, LLP, of Columbia, for Appellants.

Theile Branham McVey and John D. Kassel, both of Kassel McVey, of Columbia; and Lisa White Shirley and Jonathan Marshall Holder, both of Dean Omar Branham Shirley, LLP, of Dallas Texas, all for Respondents.


In this complex mesothelioma case, Appellants Fisher Controls International LLC (Fisher) and Crosby Valve, LLC (Crosby) seek review of the circuit court's denial of their motions for a directed verdict and a judgment notwithstanding the verdict (JNOV), its granting of a new trial nisi additur to Respondents Beverly Dale Jolly (Dale) and Brenda Rice Jolly (Brenda), its partial denial of Appellants' motion for setoff, and its denial of Appellants' motion to quash subpoenas for their corporate representatives. Among the multitudinous arguments made in their brief, Appellants assert there was no scientifically reliable evidence that Dale's workplace exposure to their products proximately caused his mesothelioma. We affirm.


From early 1980 to late 1984, Dale worked as a mechanical inspector for Duke Power Company (Duke) at the Oconee McGuire, and Catawba nuclear power plants in South Carolina and North Carolina.[1] During this time, his duties regularly brought him within close proximity to his co-workers' removal of asbestos gaskets from valves supplied by various manufacturers, [2] including Appellants. Appellant Fisher Controls International LLC sold customized process control valves to Duke, and Appellant Crosby Valve, LLC sold customized safety valves to Duke. Flanges connected these valves to pipelines, [3] and each flange housed a gasket for the purpose of providing a tight seal to the connection. Whenever a worn gasket was replaced, Dale had to verify the number on the replacement gasket by the manufacturer's manual and document this verification. He also had to verify that the gasket was torqued correctly.

Dale was so close to the process of removing the worn gaskets that he saw and breathed in the dust being released from the brushing and grinding of the gaskets, [4] and he wore safety goggles to keep the dust out of his eyes. Although Appellants manufactured only the valves and not the gaskets used with these valves, Appellants kept the gaskets in stock and sold them to Duke upon receiving Duke's purchase orders and specifications.

In late 1984, Dale left his position as a mechanical inspector and, except for a two-month break in 2002, continued to work for Duke in other capacities until December 2015, when he was diagnosed with mesothelioma, a type of lung cancer. After his diagnosis, Dale underwent extensive treatment for his condition, including several rounds of chemotherapy, a complicated surgery, a subsequent hospitalization, and experimental immunotherapy.

On April 25, 2016, Dale and his wife, Brenda, filed the present products liability action against Appellants and numerous co-defendants, alleging that Dale was exposed to asbestos emanating from the defendants' products. Respondents asserted causes of action for, inter alia, negligence, strict liability, breach of implied warranty, fraudulent misrepresentation, and loss of consortium. Respondents alleged, inter alia, that (1) Appellants were strictly liable for the harm caused to Dale by their products because the lack of an adequate warning or adequate use instructions rendered the design of these products defective and dangerous; (2) Appellants were negligent in the design of their products and in failing to warn of the harm resulting from the use of their products; and (3) Appellants breached their implied warranties that their products were of good and merchantable quality and fit for their intended use. Prior to trial, Respondents settled their claims against Appellants' co-defendants for a total sum of $2, 270, 000. In exchange for these proceeds, Respondents released all of their present and future claims against the co-defendants, including any future wrongful death claim.

In July 2017, the circuit court conducted a trial on Respondents' claims against Appellants. At the conclusion of the trial, the jury awarded $200, 000 in actual damages to Dale for his negligence and breach of warranty claims and $100, 000 in actual damages to Brenda for her loss of consortium claim. The circuit court later granted Respondents' motion for a new trial nisi additur and increased Dale's award to $1, 580, 000 and Brenda's award to $290, 000.

The circuit court also granted, in part, Appellants' motion for a setoff of Respondents' pre-trial settlement proceeds against the increased verdicts for Dale and Brenda. The circuit court accepted Respondents' stated allocation of the proceeds, which assigned one-third to Dale's claims; one-third to Brenda's claims; and one-third for a future wrongful death claim. As to the portion of proceeds Respondents had allocated to a future wrongful death claim, the circuit court denied setoff. The circuit court also denied Appellants' motion for a JNOV and issued a separate written order memorializing its pre-trial denial of Appellants' motion to quash Respondents' trial subpoenas. Appellants later filed a motion for reconsideration, which the circuit court denied. This appeal followed.

I. Directed Verdict/JNOV

Appellants challenge the circuit court's denial of their motion for a JNOV on the following grounds: (1) there was no reliable evidence that Dale's workplace exposure to their products proximately caused his mesothelioma; (2) Respondents failed to meet their burden of proof on their claims that were based on a failure to warn; (3) Respondents failed to meet their burden of proving a design defect for purposes of their negligence and implied warranty claims; and (4) Respondents failed to show Appellants deviated from the standard of care. We will address these grounds in turn.

A motion for a JNOV is "merely a renewal of [a] directed verdict motion." RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 399 S.C. 322, 331, 732 S.E.2d 166, 171 (2012). "When ruling on a JNOV motion, the [circuit] court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party." Williams Carpet Contractors, Inc. v. Skelly, 400 S.C. 320, 325, 734 S.E.2d 177, 180 (Ct. App. 2012). "This court must follow the same standard." Id. "If more than one reasonable inference can be drawn or if the inferences to be drawn from the evidence are in doubt, the case should be submitted to the jury." Id. (quoting Chaney v. Burgess, 246 S.C. 261, 266, 143 S.E.2d 521, 523 (1965)).

"In considering a JNOV, the [circuit court] is concerned with the existence of evidence, not its weight," and "neither [an appellate] court, nor the [circuit] court has authority to decide credibility issues or to resolve conflicts in the testimony or the evidence." Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585 S.E.2d 272, 274 (2003) (second alteration in original) (quoting Reiland v. Southland Equip. Serv., Inc., 330 S.C. 617, 634, 500 S.E.2d 145, 154 (Ct. App. 1998), abrogated on other grounds by Webb v. CSX Transp., Inc., 364 S.C. 639, 615 S.E.2d 440 (2005)). "The jury's verdict must be upheld unless no evidence reasonably supports the jury's findings." Id. In other words, a motion for a JNOV "may be granted only if no reasonable jury could have reached the challenged verdict." Gastineau v. Murphy, 331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998).

A. Proximate Cause

Appellants maintain there was no evidence that Dale's exposure to asbestos from their products proximately caused his mesothelioma. Specifically, Appellants argue there was no reliable evidence showing Dale's exposure to their products was a "substantial cause" of his illness. We disagree.

Whether the theory under which a products liability plaintiff seeks recovery is negligence, strict liability, or breach of warranty, it is necessary to show "the product defect was the proximate cause of the injury sustained." Bray v. Marathon Corp., 356 S.C. 111, 116, 588 S.E.2d 93, 95 (2003).[5] "Proximate cause requires proof of both causation in fact and legal cause, which is proved by establishing foreseeability." Bray, 356 S.C. at 116-17, 588 S.E.2d at 95. "Ordinarily, the question of proximate cause is one of fact for the jury[, ] and the [circuit court's] sole function regarding the issue is to inquire whether particular conclusions are the only reasonable inferences that can be drawn from the evidence." Small, 329 S.C. at 464, 494 S.E.2d at 843.

Further "[t]o establish medical causation in a product liability case, a plaintiff must show both general causation and specific causation." Fisher v. Pelstring, 817 F.Supp.2d 791, 814 (D.S.C. 2011) (quoting In re Bausch & Lomb Inc. Contacts Lens Solution Prods. Liab Litig., 693 F.Supp.2d 515, 518 (D.S.C. 2010)). "General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury." Id. (quoting In re Bausch & Lomb, 693 F.Supp.2d at 518); see also David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK. L. REV. 51, 52 (2008). General causation "is...

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