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UNPUBLISHED PER CURIAM OPINION filed.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]
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UNPUBLISHED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.
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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Affirmed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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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.
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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).
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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
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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).
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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
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asbestosis
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or
became
disabled
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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.
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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.
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deposition,
some
of
Filed: 01/12/2017
counsel
which
previously.”
stated
for
[Dr.
that
[Attorneys]
Alleyne]
J.A.
3205,
“[s]ince
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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
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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.
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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.
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“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
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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
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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
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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
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capacity,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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