Larry Southern v. Richard H. Bishoff, PC

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:11-cv-01800-JFA. Copies to all parties and the district court/agency. [1000002465]. [15-2008]

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 1 of 30

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2008

LARRY SOUTHERN; ROY SOUTHERN; YVONNE HARRIS; BARBARA
PATTERSON, individually and on behalf of others similarly
situated in the State of South Carolina,
Plaintiffs – Appellants,
and
LUCILLE SOUTHERN; ODELL PARKER; RUTH PARKER,
Plaintiffs,
v.
RICHARD H. BISHOFF, PC; RICHARD H. BISHOFF; JOHN M. DEAKLE;
JOHN W. BARRETT; BARRETT LAW GROUP, PA; A. JOEL BENTLEY;
PAUL T. BENTON; WILLIAM R. COUCH; DAVID O. MCCORMICK;
CUMBEST CUMBEST HUNTER & MCCORMICK; CRYMES G. PITTMAN;
PITTMAN GERMANY ROBERTS & WELSH, LLP; JOHN MICHAEL SIMMS;
EUGENE C. TULLOS; TULLOS & TULLOS; RANCE N. ULMER,
Defendants – Appellees,
and
ASBESTOS PROCESSING LLC; A. JOEL BENTLEY LAW OFFICE;
CHARLES G. BLACKWELL, JR.; COUCH LAW FIRM; PATRICK C.
MALOUF; PORTER & MALOUF, PA; HAMMACK BARRY THAGGARD & MAY,
LLP; ANTHONY SAKALARIOS; MORRIS SAKALARIOS & BLACKWELL,
PLLC; LAWYER JOHN DOE; LAWYER JANE DOE,
Defendants,
WILLIAM HOWELL MORRISON,
Intervenor For Limited Purpose.

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 2 of 30

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., Senior
District Judge. (0:11-cv-01800-JFA)

Argued:

October 25, 2016

Decided:

January 12, 2017

Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: James J. O’Keeffe, IV, JOHNSON, ROSEN & O’KEEFFE, LLC,
Roanoke, Virginia, for Appellants.
Kurt M. Rozelsky, SMITH
MOORE LEATHERWOOD LLP, Greenville, South Carolina; Morris Dawes
Cooke,
Jr.,
BARNWELL
WHALEY
PATTERSON
AND
HELMS,
LLC,
Charleston, South Carolina, for Appellees. ON BRIEF: Thomas A.
Pendarvis,
PENDARVIS
LAW
OFFICES,
P.C.,
Beaufort,
South
Carolina; Susan F. Campbell, Georgetown, South Carolina, Chad A.
McGowen, Randall S. Hood, MCGOWAN, HOOD & FELDER, LLC, Rock
Hill, South Carolina; Brent P. Stewart, STEWART LAW OFFICES,
Rock Hill, South Carolina, for Appellants.
Jason D. Maertens,
SMITH MOORE LEATHERWOOD LLP, Greenville, South Carolina, for
Appellees Richard H. Bishoff, PC, Richard H. Bishoff, and John
M. Deakle; Susan P. McWilliams, William C. Lewis, NEXSEN PRUET,
LLC, Columbia, South Carolina, for Appellee William R. Couch;
John William Fletcher, BARNWELL WHALEY PATTERSON AND HELMS, LLC,
Charleston, South Carolina, for Appellees Crymes G. Pittman,
Pittman Germany Roberts & Walsh, LLP, Eugene C. Tullos, Tullos &
Tullos, and Rance Ulmer; Elizabeth Van Doren Gray, J. Calhoun
Watson, Alexis Lindsay, SOWELL GRAY STEPP & LAFFITTE, L.L.C.,
Columbia, South Carolina, for Appellee John Michael Sims; Thomas
C. Salane, R. Hawthorne Barrett, TURNER PADGET GRAHAM & LANEY
P.A., Columbia, South Carolina, for Appellees David O. McCormick
and Cumbest Cumbest Hunter & McCormick; Leslie A. Cotter, Jr.,
RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina,
for Appellee A. Joel Bentley, Jr.; Larry D. Moffett, Shea S.
Scott, DANIEL COKER HORTON & BELL, P.A., Oxford, Mississippi,
John T. Lay, Jr., Lindsay A. Joyner, GALLIVAN, WHITE & BOYD,
P.A., Columbia, South Carolina, for Appellees Barrett Law Group,
PA and John W. Barrett; Frank R. Ellerbe, III, ROBINSON,
MCFADDEN & MOORE, P.C., Columbia, South Carolina, for Appellee
Paul T. Benton.

2

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 3 of 30

Unpublished opinions are not binding precedent in this circuit.

3

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 4 of 30

PER CURIAM:
This

case

representation
their

arises
of

out

several

personal-injury

of

South

claims

several
Carolina

against

attorneys’
employees

asbestos

legal

regarding

manufacturers.

The employees’ lawsuit alleges that the attorneys breached a
duty to instruct them as to how to protect their rights to
receive workers’ compensation benefits, or at least to notify
them that they might need to seek further advice on the issue.
The

employees

defendants

appeal

for

lack

district
of

court

personal

orders

dismissing

jurisdiction

and

some

granting

summary judgment to others on the merits of the claims.

Finding

no error, we affirm.
I.
Viewing

the

facts

in

the

light

most

favorable

to

the

employees, as we must in reviewing an order granting summary
judgment
Attorneys

against

them,

Richard

collectively)

Bishoff

represent

asbestos-related

the

record

and

John

workers

claims.

reveals
Deakle

throughout

However,

they

the

following.

(“Bishoff/Deakle”
the
do

Southeast
not

in

represent

employees who have filed workers’ compensation claims.

In fact,

they terminate their representation of clients who file workers’
compensation

claims

because

compensation

issues

make

the

the

presence

cases

attractive to them.
4

much

of
less

the

workers’

financially

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 5 of 30

Larry Southern, Roy Southern, Yvonne Harris, and Barbara
Patterson (collectively, “Employees”) are South Carolinians who
worked for decades at Springs Mills, a textile manufacturing
plant located in Lancaster, South Carolina.

They have all been

diagnosed

their

with

asbestosis,

the

result

of

exposure

to

asbestos in the course of their work at Springs Mills.
Three
collecting
disabling

of

these

Social

individuals

Security

conditions

asbestosis.

stopped

disability

years

before

working
benefits

being

and

began

for

other

diagnosed

with

Patterson stopped working in 1996, when she was

diagnosed with, and began collecting Social Security disability
payments for, asthma or chronic obstructive pulmonary disease
(“COPD”).

She

was

diagnosed

with

asbestosis

in

late

2008.

Harris stopped working in 1997, when she was diagnosed with COPD
and

began

condition.
2001.

collecting

Social

Security

disability

for

that

She was first diagnosed with asbestosis in February

Roy Southern stopped working for Springs in 2003 because

of back problems, for which he began collecting Social Security
disability.

He was diagnosed with asbestosis in May 2009.

Larry Southern was laid off from Springs Mills when the
plant

closed

in

September

asbestosis in May 2009.

2007,

and

he

was

diagnosed

with

He collected unemployment for a year-

and-a-half after being laid off, then went to work in August
2009 as a line mechanic/operator for another company at a wage
5

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 6 of 30

lower than he had been earning in his job at Springs Mills.
works

forty

hours

per

week

and

some

overtime

and

has

He

never

missed a day of work for health reasons.
Beginning

around

Bishoff/Deakle

and

2009,

others

to

each

Employee

represent

them

retained

regarding

their

personal injury claims against asbestos manufacturers concerning
their

asbestos

exposure.

Each

Employee’s

contract

of

representation provided that the client understood that their
attorneys

were

not

being

employed

to

advise

them

regarding

workers’ compensation matters.

And indeed the attorneys did not

provide

any

any

advice

personal-injury

regarding

claims

might

possible

have

on

effect

their

that

rights

to

their
obtain

workers’ compensation benefits in South Carolina.
Section
creation

of

524(g)

of

asbestos

the

Bankruptcy

personal-injury

Code

trusts

against asbestos manufacturers in bankruptcy.

authorizes
for

claims

the
made

See 11 U.S.C. §

524(g); see generally Barraford v. T&N Ltd., 778 F.3d 258, 26061 (1st Cir. 2015).
rules,

Employees’

Utilizing Mississippi’s liberal joinder

attorneys

filed

suit

in

that

state

and

obtained recoveries for each Employee from such trusts.
This
plaintiff,

action
based

Bishoff/Deakle

and

was

commenced
on

many

in

diversity
others,

July

2011

by

a

jurisdiction,

alleging

claims

single
against

for

legal

malpractice, breach of contract, and breach of fiduciary duty.
6

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 7 of 30

Although the original plaintiff was not one of the Employees,
Employees

were

later

added

as

plaintiffs

plaintiff was dropped from the action. 1
their

defendant-attorneys

failed

to

and

the

original

Employees allege that

advise

them

alternatives available under South Carolina law:

about

legal

(1) to proceed

solely with asbestos tort claims, (2) to proceed solely with
workers’ compensation claims, or (3) to proceed with both claims
simultaneously.

Employees further allege that the defendants

failed to advise them that under South Carolina law, see S.C.
Code § 42-1-560, they would waive their workers’ compensation
claims

by

proceeding

with

asbestos

tort

claims

unless

they

provided the statutorily required notice to Springs Mills.

The

remedies sought included compensatory and punitive damages and,
regarding

the

breach-of-fiduciary-duty

claim,

disgorgement

of

legal fees.
Shortly after this case was filed, the parties agreed to
conduct limited discovery and present dispositive motions on the
issue

of

whether

Employees

had

viable

workers’

compensation

claims at the time they retained the defendant-attorneys.
the

parties

conducted

this

initial

1

discovery,

the

Once

defendants

In their third amended complaint, the named plaintiffs
asserted claims for themselves and on behalf of a putative
class.
However, the district court subsequently denied
Employees’ motion for class certification. See Fed. R. Civ. P.
23(c)(4).

7

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 8 of 30

moved for summary judgment in July 2012.
entitlement

to

summary

judgment,

they

In support of their
argued

that

Employees

could not prove damages from any alleged breach because when the
defendants were retained, Employees did not have viable workers’
compensation claims.
the

claims

were

representing

The defendants advanced three reasons why

not

viable

Employees:

at

First,

the

time

Employees

they
did

commenced

not

meet

a

statutory requirement of having become disabled from asbestosis
within two years after their last exposure to asbestos; second,
they were not disabled as a result of asbestosis at the time
they retained the defendants or at any later time; and third,
they did not have lost wages due to asbestosis because Larry
Southern

continues

to

work

full-time

and

the

other

three

Employees stopped working due to other health conditions.

Their

motion included the affidavit of an expert, Dr. John Allen Dicks
Cooper,

Jr.,

who

opined

to

a

reasonable

degree

of

medical

certainty that none of the Employees had suffered or did suffer
from any total or partial disability caused, or contributed to,
by asbestosis.
Employees

opposed

the

motion.

Regarding

the

contention

that they were not disabled as a result of asbestosis, Employees

8

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 9 of 30

submitted the affidavit of their expert, Dr. William Alleyne, 2
stating:
I was retained to provide a diagnosis of the named
Plaintiffs and opine, to a reasonable degree of
medical certainty, as to whether any of the named
Plaintiffs suffer from a current impairment; whether
they need or will need medical treatment; whether they
have any restrictions; and whether their diagnosis is
causally related [to] the history of work related
exposure to asbestos provided by the patient and
through records submitted by certain out-of-state law
firms in support of claims made against various
bankrupt asbestos manufacturers.
Alleyne Aff. p.2 (ECF No. 70-3) (emphasis added).

The affidavit

stated that, as a result of workplace exposure to asbestos dust,
Roy Southern, Harris, and Patterson were each unable to work due
to asbestosis. 3

The affidavit also stated that Larry Southern

had asbestosis resulting from his workplace exposure and it “did
prevent [him] from frequently to continuously walking across a
large manufacturing plant, bending/stooping twisting/ kneeling/
crouching on a frequent to continuous basis, lifting up to 50
pounds

frequently

(required

in

his

previous

job

[at

Springs

Mills] as a plant mechanic/technician) such that he necessarily
must work at a job with lighter physical demands.”
pp.6-7 (ECF No. 70-3).

Alleyne Aff.

Dr. Alleyne did not offer any opinion as

2

Employees had identified Dr. Alleyne as an expert on June
1, 2012. They later identified him again on August 8, 2014.
3

Dr. Alleyne opined that Harris’s and Patterson’s oxygendependent respiratory failure and Harris’s COPD were “aggravated
by [their] asbestosis.” Alleyne Aff. pp. 2-3 (ECF No. 70-3).

9

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 10 of 30

to any Employee regarding when their asbestosis first impacted
their abilities to work.
The

district

court

denied

summary

judgment

in

February

2013, stating that there was “too much of a possibility of a
genuine issue of material fact.”
Shortly
add

thereafter,

additional

defendants

jurisdiction.

Employees

defendants,

filed

motions

(We

“Attorneys.”)

J.A. 832.

and

amended
many

to
to

refer

dismiss
all

Following

of
for

their
the

newly

lack

of

defendants

limited

complaint

added

personal

collectively

discovery

to

on

as

this

jurisdictional issue, the court dismissed some of the Attorneys
without

prejudice,

while

ruling

that

it

possessed

personal

jurisdiction over the others.
On January 8, 2015, the district court issued an amended
scheduling order imposing a discovery deadline of February 9,
2015, and a deadline for dispositive motions of February 24,
2015, with the trial to take place in April 2015.

The district

court later established a trial date of July 7, 2015.
Dr. Alleyne was deposed on February 6, 2015.
that

while

he

believed

to

a

reasonable

He testified

degree

of

medical

certainty that all Employees were disabled by asbestosis on the
date

he

examined

them,

he

had

not

formed

any

opinion

–

or

attempted to form one – concerning when they first contracted

10

Appeal: 15-2008

Doc: 85

asbestosis

Filed: 01/12/2017

or

became

disabled

Pg: 11 of 30

from

the

disease. 4

Regarding

Patterson, Dr. Alleyne was specifically asked whether he even
could say whether she was disabled due to asbestosis the day
before he examined her, and he answered that he could not.
When asked whether he was intending to offer any opinions
regarding when Larry Southern became disabled from asbestosis,
Dr.

Alleyne

explained

that

those

who

have

been

exposed

to

asbestos dust would be “disabled” in the sense that continued
exposure would place them at unreasonable risk of developing
different
testified,
first

diseases.
Larry

exposure

(providing

that

In

that

Southern

to

(non-legal)

became

asbestos.
“‘partial

sense,

disabled

But

see

disability’

Dr.

shortly

S.C.

Code

means

the

Alleyne

after

his

§ 42-11-20
physical

inability to continue work in [the last occupation when exposure
occurred]

only

and

‘total

disability’

means

the

physical

inability to perform work in any occupation”).

4

Dr. Alleyne also testified that Roy Southern was totally
and permanently disabled as a result of his back problems at the
time he examined him, and he offered no opinion concerning what
percentage of his inability to work was due to asbestosis as
opposed to the back problems.

11

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 12 of 30

Following completion of discovery, the remaining defendants
filed motions for summary judgment on all claims. 5

The bases

Attorneys asserted for summary judgment included those they had
asserted

in

Employees’
workers’

their

2012

inability

to

compensation

Attorneys.

summary

demonstrate

claims

Accordingly,

judgment

they

at

that

the

argued

motions
they

time

that

regarding

had

they

viable
retained

Employees

did

not

become disabled from asbestosis within two years after they were
last exposed to asbestos; they were not disabled from asbestosis
at the time they retained Attorneys or at any later time; and
they did not lose wages due to asbestosis because Larry Southern
continues

to

work

full-time

and

the

other

working due to other health conditions.

Employees

stopped

Regarding Employees’

failure to show that they were disabled by asbestosis when they
retained Attorneys, Attorneys pointed out that even Employees’
expert had offered no opinion on the subject.
The district court allowed Employees until April 23, 2015,
to respond to Attorneys’ motions.

In their response filed on

that date, Employees included “supplemental” affidavits of Dr.
Alleyne

(the

included

the

“Supplemental
statement

that

Affidavits”).
“[d]uring

5

the

The
course

affidavits
of

[his]

In late January 2015, Employees had filed a motion for
partial summary judgment.

12

Appeal: 15-2008

Doc: 85

deposition,
some

of

Filed: 01/12/2017

counsel

which

previously.”
stated

for

[Dr.

that

[Attorneys]

Alleyne]

J.A.

3205,

“[s]ince

Pg: 13 of 30

had

that

3212,

asked

not

been

3224,

time,

certain
asked

3231.

[he]

questions,
to

The

ha[d]

consider

affidavits

been

asked

to

consider and provide more specific information related to some
of those questions.”

J.A. 3205, 3212, 3224, 3231.

In the

affidavits, Dr. Alleyne opined for the first time that Employees
actually were disabled from asbestosis when they stopped working
at Springs Mills.
Attorneys moved to strike these affidavits, contending they
were improper under the Rules of Civil Procedure, the applicable
scheduling order, and case law.

Employees responded that the

affidavits were proper supplemental expert-witness disclosures
under Rule 26(e)(2).

See Fed. R. Civ. P. 26(e)(2).

They argued

that even assuming that the disclosures were late, they were
substantially

justified

deposition questions.

because

they

were

responsive

to

the

The district court took the motion under

advisement.
The
motion

court

to

motions,

never

strike.
the

Employees’.

explicitly
Ruling

district

on

court

addressed
the

the

parties’

granted

merits

summary

Attorneys’

of

the

judgment

and

denied

The court reasoned that under any of Employees’

three causes of action, they would need to establish damages
proximately

caused

by

Attorneys’
13

actions,

and

thus

Employees

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 14 of 30

would have to show that they had viable workers’ compensation
claims at the time they retained Attorneys.

The court ruled

that

viable

Employees

could

not

show

they

had

workers’

compensation claims at that time because, for their asbestosis
to be compensable under the Act, they would need to have become
disabled

from

exposures

at

during

asbestosis

Mills. 6

Springs

discovery

within

(which

two

Based

would

years

on

the

exclude

of

their

record
the

last

developed

Supplemental

Affidavits), the court concluded that Employees had failed to
forecast

sufficient

material

fact

testimony

they

on

evidence

that

to

point.

submitted

create
The

from

a

a

genuine

dispute

court

further

ruled

former

workers’

of

that

compensation

commissioner that every case has some settlement value also was
not sufficient to create a genuine factual dispute regarding
damages.

And the court rejected an argument from Employees that

even if their other claims failed, their fiduciary-duty claim
could
6

survive

even

without

proof

of

damages

since

Employees

S.C. Code § 42-11-70 provides:
Neither an employee nor his dependents shall be
entitled to compensation for disability or death from
an occupational disease, except that due to exposure
to
ionizing
radiation,
unless
such
disease
was
contracted within one year after the last exposure to
the hazard peculiar to his employment which caused the
disease, save that in the case of a pulmonary disease
arising out of the inhalation of organic or inorganic
dusts the period shall be two years.

14

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 15 of 30

sought disgorgement of attorneys’ fees as a remedy under that
claim.

The

district

court

concluded

that

Attorneys

were

entitled to summary judgment on that cause of action as well
because it arose out of the same operative facts as the legal
malpractice

claim. 7

Having

granted

summary

judgment

against

Employees, the district court denied as moot Attorneys’ motion
to strike the Supplemental Affidavits.
II.
Employees argue that the district court erred in granting
summary judgment against them.

We disagree.

“We review a district court’s decision to grant summary
judgment

de

novo,

applying

the

same

legal

standards

as

the

district court, and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
T–Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380,
384–85

(4th

Cir.

2012)

(internal

quotation

marks

omitted).

Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a).

7

The court also concluded that several defendants were
entitled to summary judgment on additional grounds not relevant
to our decision.

15

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 16 of 30

“Because we are sitting in diversity, our role is to apply
[South Carolina] law, or, if necessary, predict how the state’s
highest court would rule on an unsettled issue.”

Horace Mann

Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th
Cir. 2008).
“A plaintiff in a legal malpractice action must establish
four

elements:

(1)

the

existence

of

an

attorney-client

relationship, (2) a breach of duty by the attorney, (3) damage
to

the

damages

client,
by

and

(4)

proximate

the breach.” 8

RFT

causation

Mgmt.

Co.

L.L.P., 732 S.E.2d 166, 170 (S.C. 2012).

v.

of

the

Tinsley

client’s
&

Adams

As to damages, “the

plaintiff must show he or she ‘most probably’ would have been
successful
committed

in
the

the

underlying

alleged

suit

malpractice.”

if

the

See

attorney

Hall

v.

had

not

Fedor,

561

S.E.2d 654, 657 (S.C. Ct. App. 2002) (emphasis omitted).

The

plaintiff can make that showing either by proving that, but for
the

malpractice,

settlement

larger

he
than

most
the

probably
one

he

would
received

have
or

received

a

most

probably

would have prevailed on the underlying claim at trial.

See id.

Either way, “the client must show at least that he has lost a

8

“The elements for a breach of contract are the existence
of a contract, its breach, and damages caused by such breach.”
S. Glass & Plastics Co. v. Kemper, 732 S.E.2d 205, 209 (S.C. Ct.
App. 2012).

16

Appeal: 15-2008

Doc: 85

probability

Filed: 01/12/2017

of

negligence.”

success

as

Pg: 17 of 30

a

result

of

the

attorney’s

Doe v. Howe, 626 S.E.2d 25, 32 (S.C. Ct. App.

2005) (internal quotation marks omitted).
A.
Employees
concluding

first

that

argue

they

that

did

the

not

district
possess

court
viable

erred

in

workers’

compensation claims at the time Attorneys agreed to represent
them.

We disagree.

Like the district court, we conclude that

Employees failed to create a genuine factual dispute regarding
the viability of their workers’ compensation claims, although
our reasoning differs from the district court’s.

See MM ex rel.

DM v. School Dist. of Greenville Cty., 303 F.3d 523, 536 (4th
Cir. 2002) (“[W]e are entitled to affirm the court’s judgment on
alternate
record.”).

grounds,

if

such

grounds

are

apparent

from

the

We conclude that Employees’ workers’ compensation

claims were not viable because they failed to create a genuine
factual dispute concerning whether they incurred any lost wages
as a result of asbestosis.
A
“Act”)

worker
who

has

covered
been

by

the

Workers’

accidentally

Compensation

injured

can

be

Act

(the

entitled

to

receive benefits under the “general disability” statutes, §§ 42-

17

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 18 of 30

9-10 and 42-9-20, or the “scheduled loss” statute, § 42–9–30. 9
See Hutson v. South Carolina State Ports Auth., 732 S.E.2d 500,
502

(S.C.

2012);

compensation

shall

see
be

also

S.C.

payable

Code

for

any

§ 42-11-10(D)
occupational

(“No

disease

unless the employee suffers a disability as described in Section
42-9-10, 42-9-20, or 42-9-30.”).

And, “the disablement or death

of an employee resulting from an occupational disease shall be
treated as an injury by accident.”

S.C. Code § 42-11-40; see

also S.C. Code § 42-1-160 (“‘Injury’ . . . mean[s] only injury
by accident arising out of and in the course of employment and
shall not include a disease in any form, except when it results
naturally

and

unavoidably

from

the

accident

and

except

such

diseases as are compensable under the provisions of Chapter 11
of

this

Title.”).

asbestos-dust

Disability

inhalation

due

to

constitutes

within the meaning of this section.

an

asbestosis

caused

occupational

by

disease

See Skinner v. Westinghouse

Elec. Corp., 716 S.E.2d 443, 445 (S.C. 2011); see also S.C. Code
§ 42-11-10(B)(5).

9

“The general disability statutes offer compensation for
total and partial disability, including a provision for wage
loss benefits.” Hutson v. South Carolina State Ports Auth., 732
S.E.2d 500, 502 (S.C. 2012).

18

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Nevertheless,
proving

a

the

Act

compensable

Pg: 19 of 30

limited

injury.

Employees’

The

Act

options

states

that

for
“[n]o

compensation shall be payable for any pulmonary disease arising
out of the inhalation of organic or inorganic dust or fumes
unless the claimant suffers disability as described in Section
42–9–10 or Section 42–9–20 and shall not be compensable under
Section

42–9–30.”

S.C.

Code

§ 42–11–60.

Since

§ 42–11–60

specifically addresses the compensability for pulmonary disease,
and

it

is

undisputed

asbestosis

is

a

pulmonary

disease,

Employees could only be entitled to compensation under §§ 42–9–
10 or 42–9–20.

Unless Employees were entitled to compensation

under § 42-11-60, their pulmonary disease is not even deemed to
be an “accident” within the meaning of the Act.
Raybestos-Manhattan,

Inc.,

127

S.E.2d

288,

See Drake v.

291

(S.C.

1962)

(involving statute that was predecessor to § 42-11-60 providing
that

“[n]o

compensation

shall

be

payable

for

any

pulmonary

disease arising out of the inhalation of organic or inorganic
dusts unless the claimant shall have been exposed thereto by his
employment for a period of at least one year and unless he
suffers

a

total

disability

therefrom”),

overruled

on

other

grounds, Hunt v. Whitt, 306 S.E.2d 621 (S.C. 1983).
This

distinction

is

important

in

this

case

because

“an

award under the general disability statutes [§§ 42-9-10 or 42-920] must

be

predicated

upon

a

showing

19

of

a

loss

of

earning

Appeal: 15-2008

Doc: 85

capacity,

Filed: 01/12/2017

whereas

[§ 42-9-30]

does

an
not

award

Pg: 20 of 30

under

require

the

such

a

scheduled

loss

showing.”

Skinner,

S.E.2d at 446 (internal quotation marks omitted).
case

of

partial

disability,

a

claimant

would

statute
716

Thus, in the

be

entitled

to

“weekly compensation equal to sixty-six and two-thirds percent
of the difference between his average weekly wages before the
injury and the average weekly wages which he is able to earn
thereafter.”

S.C. Code § 42-9-20; see also Skinner, 716 S.E.2d

at 445 (“Under section 42-9-20, lost wages must be shown in
order to receive compensation.”).
of proving the lost wages.

The claimant bears the burden

See Coleman v. Quality Concrete

Prods., Inc., 142 S.E.2d 43, 45 (S.C. 1965).
Attorneys

argue,

for

several

reasons,

that

the

district

court correctly concluded that Employees did not have viable
workers’

compensation

representation.

The

claims
one

we

when
focus

Attorneys
on

here

is

commenced
Attorneys’

contention that Employees have not forecast evidence that they
suffered lost wages as the result of asbestosis, as §§ 42-9-10
and 42-9-20 require they must in order to have a compensable
injury.

Employees offer two responses.

First, they cite the

principle that “[t]he law in effect at the time of the injury
governs the rights of the parties and not the law effective at
the time the award is made.”

Sellers v. Daniel Constr. Co., 330

S.E.2d 305, 306 (S.C. 1985) (internal quotation marks omitted).
20

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 21 of 30

Employees contend that prior to issuing Skinner in 2011, the
South Carolina Supreme Court had not yet explicitly held that
claims

based

on

asbestosis

from

asbestos

inhalation

must

be

pursued under the general-disability statutes rather than the
scheduled-loss
under

the

statute.

They

scheduled-loss

argue

statute,

that

had

§ 42-9-30,

they
they

proceeded
could

have

obtained compensation without proving lost wages.
However, whether the Supreme Court had explicitly resolved
the issue prior to issuing Skinner is beside the point.

Even on

the

Springs

dates

each

of

Mills, § 42-11-60
under

the

the

Employees

plainly

scheduled-loss

stopped

precluded
statute,

working

Employees
and

from

Employees

at

proceeding
suggest

reason why § 42-11-60 could have been read otherwise.

no

Thus,

even prior to Skinner, the Act required them to prove they lost
wages due to their asbestosis in order to establish a right to
compensation. 10

10

Employees argue that, prior to the issuance of Skinner,
the South Carolina Workers’ Compensation Commission had allowed
claimants under facts analogous to the facts of this case to
proceed under § 42-11-30.
However, regardless of whether
Employees could have prevailed at the Commission level prior to
the issuance of Skinner, it would be mere speculation to
conclude that such an award would not have been reversed on
appeal.

21

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Employees

also

assert

Pg: 22 of 30

that

they

did

forecast

evidence that they lost wages due to asbestosis.
with this proposition.
Employees

were

not

admissible
We disagree

On this point we note initially that

entitled

to

rely

on

the

Supplemental

Affidavits, which they submitted nearly two months after the
deadline

for

completion

of

discovery.

These

Affidavits were, and are, properly ignored.
“may

be

modified

consent.”

only

for

good

cause

Fed. R. Civ. P. 16(b)(4).

Supplemental

A scheduling order

and

with

the

judge’s

But “the party seeking an

extension must show that, despite due diligence, it could not
have reasonably met the scheduled deadlines.”

3 James Wm. Moore

et al., Moore’s Federal Practice § 16.14[1][a], p. 16-75 (3d ed.
2016).

Employees certainly could not meet that standard here.

Employees
producing

offered

evidence

deadline.

on

no

justification

that

point

whatsoever

prior

to

the

for

not

discovery

Attorneys had made the timing of the onset of any

asbestos-caused disability a critical issue for several years,
from the start of this case.
claims

that

Employees

were

The timing was central to their
not

disabled

within

two

years

of

their last exposure to asbestos at Spring Mills, that Employees
did

not

yet

have

viable

workers’

compensation

claims

when

Attorneys commenced to represent them, and that no Employees
suffered lost wages due to disability from asbestosis.

Thus,

Employees certainly failed to demonstrate the “good cause” they
22

Appeal: 15-2008

would

Doc: 85

have

Filed: 01/12/2017

needed

to

show

in

Pg: 23 of 30

order

to

have

the

deadline

extended.
In

the

district

court

Employees

argued

that

they

were

entitled to submit these affidavits after the discovery deadline
because they were entitled to supplement their Rule 26(a)(2)
disclosures under Rule 26(e) regarding the opinions of their
expert witness.

See Fed. R. Civ. P. 26(a)(2).

But Rule 26(e)

merely places the duty on an expert witness to supplement his
report “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the
discovery process or in writing.”

Fed. R. Civ. P. 26(e)(1)(A).

In contrast, Employees’ presentation of these new opinions were
not

proper

Rule

26(e)

supplements,

but

rather

were

“poorly

disguised attempts to counter [Attorneys’] arguments with new
expert analyses.”

EEOC v. Freeman, 778 F.3d 463, 467 n.7 (4th

Cir. 2015) (internal quotation marks omitted).

There was no

basis for the district court to consider the tardy opinions.
See Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624,
631 (E.D.N.C. 2008) (“Courts distinguish ‘true supplementation’
(e.g.,

correcting

inadvertent

errors

or

omissions)

from

gamesmanship, and have therefore repeatedly rejected attempts to
avert summary judgment by ‘supplementing’ an expert report with
23

Appeal: 15-2008

a

‘new

Doc: 85

and

determining

Filed: 01/12/2017

improved’
Attorneys’

Pg: 24 of 30

report.”). 11

expert

entitlement

to

Accordingly,

summary

judgment,

in
we

consider the summary judgment record as it existed on the date
of

the

deadline

for

completing

discovery.

We

conclude

that

Employees failed to forecast sufficient evidence of lost wages
due to asbestosis.
As we have stated, Patterson, Harris, and Roy Southern had
stopped

working

and

were

collecting

Social

Security

payments

based on disability from other conditions years before they were
diagnosed with asbestosis.

After the close of discovery, when

Attorneys moved for summary judgment, Employees had forecast no
evidence that they were disabled due to asbestosis at the time

11

Employees argue that even if their claims for disability
benefits were not viable because their asbestosis did not cause
them to lose wages, they still could have claims for medical
treatment under the Act.
See S.C. Code § 42-15-60 (entitling
employees who have suffered an “injury” within the meaning of
the Act to medical benefits).
We disagree.
Under § 42-11-60,
Employees must suffer a disability within the meaning of §§ 429-10 and -20 for their asbestosis even to be treated as an
“injury” within the meaning of the Act. See Drake v. RaybestosManhattan, Inc., 127 S.E.2d 288, 291 (S.C. 1962) (involving
predecessor statute to § 42-11-60), overruled on other grounds,
Hunt v. Whitt, 306 S.E.2d 621, 622 (S.C. 1983).
Without lost
wages resulting from asbestosis, Employees had no compensable
injury.
Cf. Skinner v. Westinghouse Elec. Corp., 716 S.E.2d
443, 445-46 (S.C. 2011) (holding that when the claimant could
not establish lost wages caused by his asbestosis, his
asbestosis was not compensable and there was no need to address
whether his workers’ compensation claim was time barred).

24

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 25 of 30

they stopped working at Springs Mills.

And their expert, Dr.

Alleyne, had specifically testified in his deposition that he
had not even tried to determine whether they were disabled due
to asbestosis prior to the time he examined them.

Accordingly,

at the time Attorneys moved for summary judgment, Employees had
failed

to

forecast

evidence

that

their

inability

to

perform

their jobs was due to asbestosis.
Like the other three Employees, Larry Southern was also
unable to show that asbestosis caused him to lose wages.

He

stopped working at Springs Mills only because he was laid off
when

the

plant

closed

in

September

2007.

After

collecting

unemployment benefits for a year-and-a-half, he went to work for
another company in August 2009. 12

And he has not shown any

reduction in his wages due to asbestosis since he started with
the

new

company.

Accordingly,

12

like

the

other

Employees,

he

Larry Southern states that he originally considered
taking a different position with the new company and that the
position was too physically taxing for him.
However, an
affidavit from the human resources manager of Southern’s new
employer stated that the position he took was the highest paying
one he was qualified for in light of his education and
experience,
and
nothing
in
the
summary
judgment
record
contradicts that.

25

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 26 of 30

failed to create a genuine factual dispute concerning whether he
possessed a viable workers’ compensation claim. 13
B.
Employees contend that regardless of the legal viability of
their

workers’

compensation

claims,

they

could

prove

damages

from Attorneys’ failure to protect their workers’ compensation
rights because they at least forecasted evidence they would have
recovered

some

amount

Attorneys

adequately

deposition

testimony

in

settlement

protected
from

Robert

13

of

them.

their

claims

Employees

Hundley,

a

former

had

the

point

to

Workers’

Employees point to Dr. Alleyne’s deposition testimony
that Larry Southern became “disabled” shortly after his first
exposure to asbestos. J.A. 3859. However, the context of that
testimony makes clear that he was not using the word “disabled”
to have the meaning it has in the context of the Act, which
refers to the physical inability of a claimant to work.
See
S.C. Code § 42-11-20 (“‘[P]artial disability means the physical
inability to continue work [in the job in which the exposure
occurred] and ‘total disability’ means the physical inability to
perform work in any occupation.”); see J.A. 2301 (Dr. Alleyne’s
testimony that “[w]hen you say disabled . . . we’re talking
about the difference between attorneys and physicians.”).
Dr.
Alleyne was opining that it would be medically dangerous for
someone who has been exposed to asbestos to continue to be
exposed.
See J.A. 3859 (stating that a person who has been
exposed to asbestos dust “would be considered disabled from the
viewpoint that he or she could not work in their usual
occupation or would be limited in the types of jobs they could
do, because once you’re exposed to asbestos, you then run the
risk of not only developing asbestosis but also the various
malignancies
associated
with
asbestos
dust
exposure
and
inhalation thereof and so therefore you should not be working in
those capacities”).

26

Appeal: 15-2008

Doc: 85

Compensation
that

he

Filed: 01/12/2017

Commissioner

has

and

represented

Pg: 27 of 30

practicing

hundreds

lawyer

of

who

testified

in

workers’

parties

compensation matters and, in his experience, almost all workers’
compensation

cases

settle.

He

indicated

that

he

would

have

obtained a settlement had he represented these Employees, and
the only question would have been the amount of the settlement.
Even

assuming

that

Employees’

legal

theory

is

otherwise

sound, we conclude that Employees have not forecasted admissible
evidence

sufficient

to

create

a

genuine

factual

dispute

concerning whether they would have settled their claims had they
preserved their rights to bring them. 14
evidence

that

claimants
whether

who
he

Hundley
had

could

no

was
lost

able
wages,

intelligently

to

Employees forecast no
obtain

which
testify

settlements

calls

into

about

for

question

whether

an

insurance carrier would even be willing to settle such a case.
And even assuming that frivolous claims have some settlement
value, there would be no nonspeculative basis for a factfinder
to conclude that these particular parties would have been able
to agree regarding the value of their claims, as they would need
to

do

in

Bierman,

order
319

to

A.2d

achieve
781,

784

a

settlement.

(N.J.

14

Super.

Cf.
Ct.

Fuschetti

Law

Div.

v.

1974)

Attorneys argue that making claims on the personal injury
trusts did not waive Appellants’ right to file workers’
compensation claims in any event. We do not address this issue.

27

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 28 of 30

(“Because no expert can suppose with any degree of reasonable
certainty the private blends of hopes and fears that might have
come together to produce a settlement before or during trial,
expert

testimony

as

to

reasonable

settlement

value

will

be

excluded as irrelevant.”); Campbell v. Magana, 184 Cal. App. 2d
751,

758

(Cal.

malpractice

Dist.

action

Ct.

could

App.

not

1960)

show

(plaintiff

damages

based

in

on

legal

nuisance

value of case where evidence shows that best settlement offer
was $350 and plaintiff had said she would not settle for less
than

$100,000;

thus

prospect

of

settlement

was

speculative).

For all of these reasons, we conclude that the district court
properly determined that Employees failed to forecast sufficient
evidence of damages from any failure on the part of Attorneys to
protect their right to workers’ compensation.
C.
Employees

also

argue

that

even

if

they

could

not

prove

damages from Attorneys’ alleged breach of duty, the district
court erred in granting summary judgment against them on their
fiduciary-duty claim.

Employees argue that their claim remained

viable because Employees sought forfeiture of attorneys’ fees.
See Hendry v. Pelland, 73 F.3d 397, 401-02 (D.C. Cir. 1996)
(collecting cases supporting proposition that “courts in other
jurisdictions
proximate

have

causation

held
in

that
a

clients

fiduciary
28

must

duty

prove

claim

injury

against

and

their

Appeal: 15-2008

Doc: 85

Filed: 01/12/2017

Pg: 29 of 30

lawyer if they seek compensatory damages, not if . . . they seek
only forfeiture of legal fees”).

We disagree.

Even assuming

that Employees’ fiduciary-duty claims were viable to the extent
that

the

summary

judgment

record

supported

fee

disgorgement,

Employees failed to forecast evidence that could warrant such
relief. 15
Employees
entitlement

do

to

not

dispute

disgorgement

that
of

for

legal

a

plaintiff

fees

for

to

show

breach

of

fiduciary duty, the South Carolina Supreme Court would, at a
minimum,

require

that

the

plaintiff

satisfy

the

Restatement

(Third) standard of proving a “clear and serious violation” by
the defendant lawyer.

See Corrected Reply Brief of Employees at

19 (citing Restatement (Third) of the Law Governing Lawyers § 37
(2000), for the proposition that “[a] lawyer engaging in a clear
and serious violation of a duty to a client may be required to
forfeit

some

matter”).

or

But

all
nothing

of
in

the

lawyer’s

the

summary

compensation
judgment

for

record

the
could

justify a conclusion that Attorneys’ conduct rose to that level.
As we have explained, Employees cannot even demonstrate that
they

had

viable

claims

at

the

15

time

Attorneys

commenced

Because we affirm on this basis, we do not address the
correctness of the district court’s conclusion that Attorneys
were entitled to summary judgment on the fiduciary-duty claim
because it arose out of the same operative facts as the legal
malpractice cause of action.

29

Appeal: 15-2008

Doc: 85

representing

Filed: 01/12/2017

them.

And

Pg: 30 of 30

Employees’

representation

contracts

plainly stated that their attorneys would not be advising them
regarding any workers’ compensation claims.
an

applicable

duty

of

care

may

It is possible that

nonetheless

Attorneys to protect Employees’ rights.

have

required

But there would be no

basis for a reasonable factfinder to conclude that any failure
to

advise

Employees

concerning

their

(non-existent)

right

to

workers’ compensation claims amounted to “a clear and serious
violation” of their duty to their clients.

Thus, the district

court properly granted summary judgment against Employees on the
fiduciary-duty claims as well. 16
III.
In

sum,

because

we

conclude

that

the

district

court

properly granted summary judgment against Employees, we affirm.

AFFIRMED

16

Employees also maintain that the district court erred in
dismissing claims against several Attorneys for lack of
jurisdiction.
We conclude, however, that the district court
properly dismissed these parties on that basis.

30