Southern v. Asbestos Processing LLC et al

Filing 484

ORDER denying 473 MOTION to Alter 468 Judgment. Signed by Honorable Joseph F. Anderson, Jr. on 08/27/2015.(bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Larry Southern; Roy Southern; Yvonne Harris;
and Barbara Patterson,

C/A No. 0:11-cv-01800-JFA

Plaintiffs,
vs.

ORDER

Asbestos Processing, LLC; Richard H. Bishoff,
PC; Richard H. Bishoff; John M. Deakle; A. Joel
Bentley; A. Joel Bentley Law Office; William R.
Couch; Couch Law Firm; David O. McCormick;
Cumbest, Cumbest, Hunter & McCormick;
Crymes G. Pittman; Pittman, Germany, Roberts
& Welsh, LLP; and John Michael Sims,
Defendants.
I.

INTRODUCTION
This matter comes before the Court on a motion to alter or amend judgment filed by

Larry Southern, Roy Southern, Yvonne Harris, and Barbara Patterson (collectively “Plaintiffs”)
pursuant to Rule 59(e) and Rule 60(b)(6) of the Federal Rules of Civil Procedure. [ECF No.
473]. Specifically, the Plaintiffs move this Court to reconsider its Order dated June 30, 2015 (the
“Order”), which granted the Defendants’ motions for summary judgment and dismissed this
action. [ECF No. 467]. The Plaintiffs request that at a minimum, the Court should revise its
Order to deny Defendants’ motions for summary judgment. The Plaintiffs further request that
the Court grant Plaintiffs’ motions for partial summary judgment and set the case for trial on the
remaining issues.
In the view of this Court, Plaintiffs’ motion fails to meet any of the requirements under
Rule 59(2) or Rule 60(b)(6). Having reviewed the pleadings related to this motion, the Court
finds that further oral argument will not aid in its decision-making process. Accordingly, the
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Plaintiffs’ motion to reconsider, ECF No. 473, is denied.
II.

STANDARD OF REVIEW

A court’s reconsideration under Rule 59 “is an extraordinary remedy that should be
applied sparingly.” EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997).
Accordingly, the Fourth Circuit has held that a court should grant a motion to reconsider only
when (1) an intervening change in controlling law occurs; (2) additional evidence not previously
available has been presented; or (3) the prior decision was based on clear error or would work
manifest injustice. Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993).
As a result, Rule 59 motions are neither an opportunity “to make arguments that could
have been made before the judgment was entered,” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir.
2002), nor a chance to rehash issues already ruled upon because a party disagrees with the result.
Smith v. Spivey, No. 1:12-CV-00029-RBH, 2013 WL 1624458, at *1 (D.S.C. Apr. 15, 2013)
aff'd, 546 F. App'x 174 (4th Cir. 2013); see Tran v. Tran, 166 F. Supp. 2d 793, 798 (S.D.N.Y.
2001). A party's mere disagreement with a court's ruling does not warrant a Rule 59(e) motion.
United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.
2002); see also Paul v. South Carolina Dep't of Transp., No. CA 3:12-1036-CMC-PJG, 2013
WL 1182591, at *1 (D.S.C. Mar. 21, 2013).
Similar to Rule 59(e), Rule 60(b)(6) provides a means for a court to “relieve a party ...
from a final judgment, order, or proceeding” for “any other reason that justifies relief.”
Although “for any reason that justifies relief” has been described as a catch-all provision, relief
under 60(b)(6) is warranted only upon a showing of extraordinary circumstances that create a
substantial danger that the underlying judgment was unjust.” See Reid v. Angelone, 369 F.3d
363, 370 (4th Cir. 2004) (internal quotation marks omitted); Wojcicki v. Aiken Tech. College,

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2012 WL 3596161, at *2 (D.S.C. Aug.12, 2012) (citing Margoles v. Johns, 798 F.2d 1069, 1073
(7th Cir. 1986) (per curiam)).
Plaintiffs identify numerous errors allegedly made by the Court that would allegedly
work an injustice if sustained, but for the sake of brevity, as enumerated below, the Court will
only focus on a few. 1
II.

DISCUSSION
As a theme throughout Plaintiffs’ motion, Plaintiffs highlight all the issues that the Court

did not address. It is not necessary for the Court to reach every issue before it, as the Court
found that the unviability of Plaintiffs’ underlying workers’ compensation claims was dispositive
of the entire case. To address every issue before it tempts a court “to stray into the practice of
advisory opinion-making.” Karsten v. Kaiser Found. Health Plan of Mid-Atl. States, Inc., 36
F.3d 8, 11 (4th Cir. 1994).
a. Interpretation of S.C. Code Ann. § 42-11-70
The Plaintiffs disagree with this Court’s interpretation that the word “contracted” in S.C.
Code Ann. § 42-11-70 of the South Carolina Workers’ Compensation Act (the “Act”) is a term
of art that means “disablement or death.” As the Court explained in its Order, the South Carolina
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It bears mentioning that in 2013, this Court denied the Defendants’ original motion for
summary judgment. Following extensive briefing and two lengthy oral argument hearings, the
Court stated at the hearing on February 6, 2013, “I’m going to deny the motion for summary
judgment and allow the case to go forward. It’s just—to me there’s too much of a possibility of
a genuine issue of material fact at this point…. (Tr. of Feb. 6, 2013 hearing 32:2-7, ECF No.
124). The Plaintiffs maintain that it is difficult to reconcile this Court’s 2013 finding of the
existence of material facts with the recent June 30, 2015 Order, which allegedly found none
existed.
The Court respectfully disagrees. In the 2013 hearing, the Court noted the “possibility of
a genuine issue of material fact.” In the recent opinion, the Court found that after additional
discovery, there was no genuine issue of material fact as to the viability of the Plaintiffs’
underlying workers’ compensation claim, which was dispositive of the entire case. The Court’s
two holdings are reconcilable.
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Supreme Court has defined the term “contracted” in S.C. Code Ann. § 42-11-40 as a term of art
meaning “disablement or death.” Vespers v. Springs Mills, 275 S.E.2d 882, 884 (S.C. 1981);
Glenn v. Columbia Silica Sand Co., 112 S.E.2d 711 (S.C. 1960). The Court, following guidance
from the South Carolina Supreme Court, “adhere[d] to the basic principle that the same word
should not be given disparate meaning within a single statutory scheme.” Doe v. South Carolina
Dept. of Health, 727 S.E.2d 605, 611 n.11 (S.C. 2010). Thus, this Court applied the same
definition to “contracted” in § 42-11-70.
Additionally, this Court relied on three South Carolina Workers’ Compensation
Commission opinions which construed “contracted” in § 42-11-70 to mean “disablement or
death.” See Truax v. Daniel Constr./Fluor Daniel, No. 0411701, 2009 WL1433538, at *3 (S.C.
Work Comp. Comm. 2009); Bishop v. Westinghouse Elec. Corp., No. 0318085, 2007 WL
904837, at *9 (S.C. Work. Comp. Comm. 2007); Gibson v. Westinghouse Elec. Corp., No.
0319071, 2007 WL 869985, at *8 (S.C. Work Comp. Comm. 2007).
While the Plaintiffs may disagree with the analysis, the Court’s reliance on the South
Carolina Supreme Court’s definition of “contracted,” an established rule of statutory
construction, and three South Carolina Workers’ Compensation Commission opinions was
rational and reasoned. In this respect, the Plaintiffs have not shown how the Court made a “clear
error of law,” or how any extraordinary circumstances works a manifest injustice.
b. Resolution in Favor of Coverage
The Plaintiffs reason that if there is any reasonable doubt as to the statutory construction
of the Act, it “should be resolved in favor of the claimant by including him within the coverage
of the Act rather than excluding him.” Davis v. South Carolina Dep't of Corrs., 345 S.E.2d 245,
246 (S.C. 1986). However, following Truax, Bishop, and Gibson, the Court, in exercising its

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discretion as indicated by the use of “should” in Davis, did not construe S.C. Code Ann. § 42-1170 in favor of coverage.
The Plaintiffs have not provided extraordinary circumstances prompting the Court to
disturb its previous order or shown how the Court made a “clear error of law.” The Plaintiffs
simply disagree with the Court’s ruling and mere disagreement is not enough to warrant a grant
of a motion to reconsider.
c. Omission of the Bowers Case
The Plaintiffs point out that the Court omitted any discussion of Bowers v. Sea Island
Staffing, No. 0226915, 2009 WL 1425599 (S.C. Work. Comp. Comm. 2009). Bowers is a South
Carolina Workers’ Compensation Commission case, decided before Truax, which weighs in
Plaintiffs’ favor.

The Court only cited to one South Carolina Workers’ Compensation

Commission case, Powell, which also weighs in Plaintiffs’ favor.
Plaintiffs only briefly referred to Bowers in their eighty-two page response memorandum.
Further, after review of the transcript of the recent summary judgment hearing, no party ever
referred to Bowers, despite extensive discussion of Powell, Truax, Bishop, and Gibson. Omitting
Bowers was an oversight by the Court; however, the Court is still persuaded by the reasoning and
analysis found in Truax, Bishop, and Gibson.
d. Unconstitutionality of S.C. Code Ann. § 42-11-702
Plaintiffs indicate that the Court has never considered, despite being argued, whether S.C.
Code Ann. § 42-11-70 is unconstitutional as applied. Plaintiffs, in their motion to reconsider,
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The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution provides
“No state shall make or enforce any law which shall ... deny to any person within its jurisdiction
the equal protection of the laws.” The South Carolina Equal Protection Clause states: “[t]he
privileges and immunities of citizens of this State and of the United States under the Constitution
shall not be abridged, nor shall any person be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws.”
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claim that this Court’s application of § 42-11-70 “arbitrarily treats occupational disease
claimants involving exposure to asbestosis (and other contaminants) differently than similarly
situated claimants involving exposure to ionizing radiation.” Because ionizing radiation is
excluded from § 42-11-70, the Plaintiffs maintain that the statute violates the right to equal
protection by treating similarly situated occupational disease claimants differently.
In the 2012 motion for summary judgment briefing, Plaintiffs argued that Defendants’
interpretation of § 42-11-70
arbitrarily treat claimants whose occupational diseases are readily discoverable
shortly after exposures to the causative agents differently than claimants whose
diseases may not manifest for 10, 20, 30 or even 40 years after the dates of the
injurious exposures. Persons who have developed ‘quick acting’ occupational
diseases, such as occupational asthma, with which there is generally an acute
onset of the disease in response to a causative agent, would be eligible to receive
workers' compensation benefits by filing claims within the requisite statutory
period. However, those persons with latent or “slow acting” occupational disease
would be barred from recovery because their diseases were not benevolent
enough to make themselves known in a more timely fashion. Such arbitrary and
capricious classification as to who may receive benefits for latent diseases bears
no relation to any state interest, much less a rational one.
…
Application of S.C. Code Ann. § 42-11-70, as argued by Defendants, would be
patently under-inclusive because it does not encompass all other serious
occupational diseases that are non-latent in nature.
In support of this assertion, the Plaintiffs cited favorably to a North Carolina state case that found
a statute grossly under-inclusive for differentiating between claimants with asbestosis and
silicosis and claimants with other occupational diseases. See Walters v. Blair, 462 S.E.2d 232
(N.C. Ct. App. 1995), aff'd, 476 S.E.2d 105 (N.C. 1996).
Under equal protection analysis, “State legislatures are presumed to have acted within
their constitutional power despite the fact that, in practice, their laws result in some inequality.

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A statutory discrimination will not be set aside if any state of facts reasonably may be conceived
to justify it.” State v. Solomon, 141 S.E.2d 818, 830 (S.C. 1965).
Where an alleged equal protection violation does not implicate a suspect class, a court
applies the rational basis test. To prevail under the rational basis test, it is only necessary to
show that the classification created by the statute bears a rational relationship to or furthers some
legitimate state interest. See Town of Hollywood v. Floyd, 744 S.E.2d 161, 168 (S.C. 2013)
(citing Vill. Of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). A statute is constitutional
under rational basis scrutiny so long as “there is any reasonably conceivable state of facts that
could provide a rational basis for the [statute].” FCC v. Beach Commc'ns, Inc., 508 U.S. 307,
313, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993). A classification does not fail rationalbasis review because it “is not made with mathematical nicety or because in practice it results in
some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491
(1970).
The Supreme Court has explained “[a] statute can be both over-inclusive and underinclusive and still pass rational basis review.” Massachusetts Bd. of Ret. v. Murgia, 427 U.S.
307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). “[R]ational basis review allows legislatures to act
incrementally and to pass laws that are over and under inclusive without violating the Fourteenth
Amendment.”

Hayden v. Paterson, 594 F.3d 150, 171 (2d Cir. 2010) (citing Gregory v.

Ashcroft, 501 U.S. 452, 473, 111 S. Ct. 2395, 2407, 115 L. Ed. 2d 410 (1991); Williamson v. Lee
Optical of Oklahoma Inc., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563 (1955)).
Throughout the Act certain occupational diseases are treated differently. See S.C. CODE
ANN. § 42-11-10(B) (excluding some diseases from compensation); § 42-11-60 (separate
requirements for compensation for pulmonary diseases); § 42-11-70 (differing lengths of repose

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for pulmonary and ionizing radiation diseases). Occupational diseases can differ in innumerable
ways and these differences in and of themselves justify different treatment. From these statutes,
it is apparent that the South Carolina Legislature has recognized these differences and, in light of
them, chosen to treat some diseases differently. The Court finds that because of the differences
between occupational diseases, the legislature demonstrated a rational basis for treating them
differently.
Following guidance from the Supreme Court in Murgia, this Court is not persuaded by
the North Carolina case of Walters. The statute at issue in Walters imposed upon claimants
suffering from asbestosis or silicosis an additional burden for recovery not so imposed on
claimants with other occupational diseases—therefore, the Court found the statute “grossly”
under-inclusive. Walters, 462 S.E.2d at 234. The North Carolina Appellate Court explained
“[t]here are ... many other serious diseases, such as byssinosis, that develop over time and to
which N.C. Gen. Stat. § 97–63 does not apply and the defendants have not asserted any
justification for treating asbestosis and silicosis differently from these other serious diseases.”
Id. at 233 (internal quotation marks omitted).
Here, § 42-11-70 is not grossly under-inclusive. The classification only excludes one
type of claimant, those with ionizing radiation. Further, the Plaintiffs contend that the statute, as
applied, does not encompass all other serious occupational diseases that are non-latent in nature;
however, if the disease is non-latent in nature, then it arguably follows that a claimant would
contract the disease—meaning disablement or death—before the statute of repose precluded
recovery. Thus, the statute is not actually under-inclusive of claimants with non-latent diseases.
Finally, the Plaintiffs contend that the differentiation between non-latent and latent diseases is

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arbitrary; however, the Court previously explained that occupational diseases can differ in
innumerable ways and these differences justify different treatment.
In sum, the classification created by § 42-11-70 bears a rational relationship to the
legitimate state interest of accounting for different occupational diseases under the Act. Case
law supports that legislatures may pass laws that are over and under inclusive without violating
the equal protection clause. As such, the Court finds that § 42-11-70 does not violate the right to
equal protection.
e. Medical Evidence
Plaintiffs request that the Court reconsider their claim that medical benefits are different
from compensation benefits under the Act. Plaintiffs maintain that medical benefits are not
addressed in S.C. Code Ann. § 42-11-70, and are consequently, not precluded by the Court’s
interpretation of § 42-11-70.

Plaintiffs explain that each of their occupational diseases

manifested—contracted—within two years after the last exposure to asbestos.

Therefore,

Plaintiffs are still entitled to medical benefits.
The Court finds this argument unpersuasive as it is premised upon the Court accepting
Plaintiffs’ interpretation of the word “contracted.” Because the Court has rejected Plaintiffs’
interpretation, the Court indirectly denies reconsideration of this claim.
III.

CONCLUSION
For the above reasons, the motion to alter or amend the judgment under Rule 59(e) or

Rule 60(b)(6) of the Federal Rules of Civil Procedure is denied.

IT IS SO ORDERED.
August 27, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge
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