South Carolina Lawyers Weekly
- Black steel workers settle discrimination claims for $22.5M
The owner of a South Carolina steel mill has agreed to pay a $22.5 million settlement to workers who said they were discriminated against because of their race.
The Nucor Steel Corp. agreed to the settlement after years of litigation dating back to 2003. U.S. District Judge David Norton gave final approval to the settlement April 13, 2018.
Bob Wiggins and Ann Korns Wiggins of Wiggins Childs Pantazis Fisher Goldfarb in Birmingham, Alabama, and Armand Derfner of Derfner & Altman in Charleston represented the plaintiffs. Hunter Hughes of Atlanta mediated the settlement.
The lawsuit was filed in late 2003 by seven black employees of the Nucor steel mill in Huger, which is in Berkeley County. In the suit, the plaintiffs alleged a pattern and practice of racially discriminatory promotions and a racially hostile work environment from Dec. 2, 1999 forward.
Nucor denied the allegations and argued that opportunities for promotions were available to all employees, regardless of race.
A 2015 court ruling described the hostile work environment in which supervisors allegedly routinely referred to black workers using racial epithets, and allowed racially charged symbols like a noose, Confederate flag, and a KKK hood to be displayed.
The settlement agreement provided for $10 million in attorneys’ fees, with the rest being split between black workers who worked at the steel mill during the time of the allegations.
Nucor also agreed to provide anti-discrimination training to employees and to revise their hiring practices. It has also created a new process for investigating discrimination claims.
Wiggins, an Easley native and Clemson graduate, said the litigation demanded great persistence, particularly in getting the workers certified as class. The district court denied class certification twice and was overruled by the 4th U.S. Circuit Court of Appeals both times. That appeals process substantially prolonged the litigation, during which time the case became more complex as new evidence of discrimination continued to be discovered.
“This is one of the few racial discrimination class actions that have actually been certified and gone this far in recent years, but the Court of Appeals decisions, I think, are going to change that,” Wiggins said. “This case has had an impact, and lawyers have learned that they can get these certified if they go about it the right way.”
SETTLEMENT REPORT – EMPLOYMENT DISCRIMINATION
Amount: $22.5 million
Injuries alleged: Racially discriminatory promotions, racially hostile work environment
Case name: Brown, et al v. Nucor Corporation, et al
Court: U.S. District Court for the District of South Carolina
Case No.: 2:04-cv-22005
Judge: David C. Norton
Mediator: Hunter Hughes of Atlanta
Date of settlement: April 13, 2018 (final approval and order)
Attorneys for plaintiffs: Bob Wiggins and Ann Korns Wiggins of Wiggins Childs Pantazis Fisher Goldfarb in Birmingham, Alabama, and Armand Derfner of Derfner & Altman in Charleston
Attorneys for defendants: Attorneys from Dowd Bennett in St. Louis, Missouri (lead counsel) and John Wilkerson of Turner, Padgett, Graham & Laney in Charleston (local counsel)
- Trucking company, driver hit with $17M verdict for fatal crash
A federal jury in Charleston has awarded $17 million to the relatives of a Canadian family killed in a fiery crash with a tractor trailer, marking the apparent end of nearly three years of litigation.
The truck driver, Timothy Groshans, had the cruise control set at 70 mph when his semitrailer barreled past signs warning of slowed traffic for an upcoming construction zone on Interstate 95 near Florence in 2015. The 40,000-pound 18-wheeler smashed into the back of a Honda CR-V carrying Jeremiah Cross, 34, Crystal Cross, 32, and their 7-month-old son, Graysen, back from a vacation in Florida.
The impact launched Graysen, still strapped into his car seat, from the Honda and he tumbled some 175 feet down the roadway. Crystal, who had been sitting in the backseat with her son, died instantly. Jeremiah survived for several seconds inside the burning vehicle, according to Melissa Mosier of McWhirter, Bellinger & Associates.
Mosier represented Crystal’s parents in a suit against Groshans, the trucking company that he was driving for during the crash, XPO Express, and its holding company, XPO Logistics. XPO is among the world’s largest trucking and logistics companies.
Mosier described Express as a shell company created to shield Logistics from liability — an assertion that XPO adamantly denied. She said her primary role was to keep Logistics in the case, which she did, in part, by poring over thousands of pages of discovery that the company dumped on the plaintiffs. In looking at the documents, she said she noticed that many of the driver logs featured XPO Logistics’ name, not Express.
She later discovered that the speed-monitoring equipment on Groshans’ truck, which XPO leased, was licensed to Logistics — and that, she said, “showed control directly by the parent company over safety.”
Mosier also said XPO had argued, unsuccessfully, that it was not responsible for Groshans’ actions because his truck’s trailer was empty during the crash, which the company asserted meant that he wasn’t acting in the course and scope of his employment.
“All along they tried to get out of this and hang their driver out to dry,” Mosier said.
Mark Joye of the Joye Law Firm in North Charleston, who represented the estate of Jeremiah and Graysen, argued at trial that Groshans had been drinking — a bottle of liquor was found in the wrecked truck’s cab and the co-driver, who was resting when the crash occurred, testified that he’d removed a second booze bottle from the semi.
But whether Groshans had alcohol in his system remains a mystery. He was taken to a nearby hospital and given a drug test, but not an alcohol test as required under federal law. Mosier and Joye argued that Groshans refused to take the test.
But attorneys for XPO, T. David Rheney and Bill Young of Gallivan, White & Boyd in Greenville, contended that a hospital staffer failed to order the test. They also stressed that the bottle in the cab was zipped up inside a duffel bag and that law enforcement officers at the crash site testified that they did not suspect that alcohol played a role in the crash.
“There is zero evidence in this case that [Groshans] had a drop of alcohol in his system,” Rheney said. “It was brought into this case solely to prejudice the jury and the jury did not believe it.”
He made that assertion based on the jury’s decision that the conduct of Groshans and XPO was not willful, wanton, or reckless and that punitive damages were not warranted. The jury found the defendants’ negligence to be a proximate cause of the Cross family’s death.
In the midst of trial, XPO had offered to settle the case for $13 million, Joye said. In his closing argument, Joye asked for an award of $75 million, Rheney said. He declined to confirm the $13 million settlement offer, saying it was confidential.
After deliberating over the course of two days, the jury found that Groshans was 70 percent at fault and split the remaining blame equally between Express and Logistics. The jury awarded $12 million to the estate of Jeremiah and Graysen and $5 million to Crystal’s estate.
“We think the verdict was in the area where we thought it would be going into trial,” Rheney said. “Our position was we simply asked the jury to do what they thought was fair. It’s impossible for any lawyer to stand up there and tell a jury what would fairly compensate these people … for the loss of their family members.”
VERDICT REPORT – WRONGFUL DEATH
Amount: $17 million
Case name: Jeremiah J. Cross, deceased, by and through his Personal Rep, Valerie Steele, v. XPO Express, Inc. f/k/a Express 1, Inc., et al.
Court: U.S. District Court for the District of South Carolina
Case No.: 2:15-cv-02480
Judge: Bruce Bowe Hendricks
Date of verdict: May 3, 2018
Highest offer: $13 million
Attorneys for plaintiff: Mark Joye and Mark Bringardner of the Joye Law Firm in Charleston for Jeremiah Cross; Melissa Mosier and Lisa McPherson of McWhirter Bellinger & Associates in Lexington for Crystal Cross
Attorneys for defendant: T. David Rheney and William Young III of Gallivan, White & Boyd in Greenville and Mark Barrow and Martin Driggers of Sweeny, Wingate & Barrow in Columbia
- Sepsis leads to amputations, $16.4M settlement
A South Carolina woman who had three limbs amputated after Crohn’s disease led to sepsis has settled a lawsuit against a hospital, her doctor, a surgeon, and a gastroenterologist for $16.4 million, her attorney reports.
The then 18-year-old was playing college basketball on a scholarship when she began suffering stomach pains, said Chad McGowan of McGowan, Hood, and Felder in Rock Hill. She was eventually diagnosed with Crohn’s disease that went untreated, leading to a bowel perforation and sepsis, a potentially life-threatening condition caused by the body’s efforts to fight off infections, McGowan said.
The plaintiff claimed that after she was admitted to the hospital, she was not treated correctly with the drugs to battle sepsis, and that resulted in above-the-knee amputations of both legs and a below-the-elbow amputation of her right arm. She sued for medical malpractice, and the case settled a day before a scheduled trial for $16.4 million.
The woman claimed that the gastroenterologist knew that she had Crohn’s disease but never told her or her primary care physician, McGowan said. The gastroenterologist countered that the woman was at fault because she missed two follow-up appointments, so the gastroenterologist never had the chance to tell her of her condition.
The surgeon claimed that he told the plaintiff she had Crohn’s disease, but that does not appear anywhere in medical records, McGowan said.
The primary care physician said they were kept in the dark by the gastroenterologist. The physician claimed that if the practice had known the plaintiff had Crohn’s disease, it would have changed the plaintiff’s course of care, McGowan said
And the hospital says that by the time the plaintiff was admitted to the emergency room, she was about to die and doctors did what they did they had to do to save her life.
The woman was the first in her family to graduate high school, and the first to attend college, McGowan said.
“It was a massive loss to the family,’ he said.
The woman now has two leg prostheses, and will soon have an arm prosthesis in place.
“She would like to be able to play basketball again, and current prosthetic technology will allow her to do that,” McGowan said. “She would like to be involved in youth sports in some capacity as well as being able to help other young people through similar traumas. While she was probably not going to be in the WNBA, before this injury she did see herself as a high school coach.”
SETTLEMENT REPORT – MEDICAL MALPRACTICE
Amount: $16.4 million
Case Name: Confidential
Court: Confidential
Date of settlement: Nov. 6, 2018
Attorneys for plaintiff: Chad McGowan, Eve Goodstein, Whitney Harrison, and Jordan Calloway of McGowan, Hood and Felder in Rock Hill
Attorneys for defendant: Spencer King of Ward Law Firm in Spartanburg and Matt Henrikson of Greenville for gastroenterologist; Douglas Pratt Thomas of Rogers Townsend in Charleston for surgeon; and Kip Darwin of Holcombe Bomar in Spartanburg for hospital.
- Man settles for $11.3M after wife, unborn baby die
The husband of a woman who died in a vehicle crash in Beaufort County along with their unborn child has reached an $11.3 million settlement with the driver responsible and her employer, his attorney reports.
Harry Oxner of Oxner & Stacy in Georgetown reports that the crash happened on Highway 278 when the driver, whose name was withheld pursuant to a confidentiality agreement, was running a bank errand for her employer and failed to yield the right of way, causing the plaintiff to hit her.
Oxner said his client hit the defendant while driving within the speed limit of 55 mph. The plaintiff’s experts believe that the wife was initially protected by an airbag, which properly deployed before a third car rammed into two vehicles just seconds later. But when the second impact happened, the airbag had deflated, causing the pregnant woman’s stomach to forcefully hit the dashboard.
The mother was evacuated by air to a hospital in Savannah where she died of internal injuries, while the 21-week-old unborn child is believed to have died at the scene. The husband suffered lacerations to his head and a broken leg.
Oxner said that in all there were four claims, including one for gross negligence on behalf of the defendant and her employer, who allowed her to drive despite a history of unsafe driving habits, the complaint alleged. The client also filed claims for wrongful death, survival, and loss of consortium.
Oxner said the case settled without differentiating the exact figures for each cause, and that the case was resolved in a lump sum.
“The mother was a beloved school teacher in the community, that’s a major issue,” Oxner said. “And frankly, there was enough insurance that the insurance carriers saw a significant downside [to not settling].”
Oxner said that before mediation he held focus groups and hired a videographer in Charleston to make a day-in-the-life video to show who the mother was and what she meant to the people around her.
While the plaintiffs also considered filing a product liability claim against the vehicle manufacturer, none was ever filed due to inconclusive evidence and the settlement reached with the driver’s insurer.
Thorne Barrett of Turner Padget in Columbia represented the defense. He said that while his client maintains that this was a matter of simple negligence, after studying comparable cases, they decided to settle to avoid even greater exposure.
“It prevents the risk of very large potential exposure, but also it was certainly a desire to try to do what we could to help the plaintiff get on with his life and resolve this without having to go through additional discovery or trial,” he said. “It was traumatic for my client as well, and this allowed them to move on.”
SETTLEMENT REPORT — WRONGFUL DEATH
Amount: $11,289,680
Injuries alleged: Death to mother and her unborn child
Case name: Withheld
Court: Beaufort County Circuit Court
Mediator: Steve Darling of Haynsworth Sinkler Boyd in Charleston
Date of verdict: Nov. 26, 2018
Attorney for plaintiff: Harry Oxner of Oxner & Stacy in Georgetown
Attorneys for defendant: Thorne Barrett of Turner Padget in Columbia
- Methadone clinic settles fatal crash suit for $10.5M
A drug treatment facility in West Columbia will pay $10.5 million to settle two wrongful death lawsuits brought after an elderly couple and their grandson died in a head on collision caused by a drug-abusing patient who was leaving the clinic.
A Sept. 11, 2018, court order approving the settlement showed that Colonial Management Group, which operated the Columbia Metro Treatment Center in West Columbia, agreed to pay $5.78 million to the estate of Cooper Gunnells Jr. and $4.72 million to the estate of Harry and Barbara Gunnells. The settlement nearly exhausts the Orlando-based company’s available insurance coverage, the order said.
The driver, Robert Moore Jr., had been a patient at the clinic for just under five years prior to the crash. He received treatment for his addiction to opiates there, according to the plaintiff’s complaint.
The estates alleged that the facility was negligent in continuing to provide Moore with methadone even after he repeatedly failed drug tests. They claimed that the facility did little to wean Moore off of methadone and that he again tested positive for methadone, amphetamines, Xanax, and OxyContin the week before the crash.
On Nov. 20, 2015, on the way home from the clinic, Moore’s vehicle abruptly swerved into oncoming traffic, sideswiping a van before colliding head-on with a vehicle in which the Gunnells were riding. Barbara and Harry are believed to have died on impact, but their grandson Cooper, who suffered from spina bifida, became trapped in the crushed vehicle. The complaint said the 16-year-old died in the ensuing fire due to smoke inhalation.
Moore survived the crash but died shortly thereafter. An autopsy showed that he was under the influence of methadone, Xanax, and Adderall at the time of the crash.
The estates argued that the clinic could have prevented the deaths by cutting off Moore’s access to methadone.
“The fatal injury and conscious pain and suffering … was the direct, proximate result of Columbia Metro’s negligent, grossly negligent and reckless conduct,” Cooper’s attorneys said in the complaint.
Dick Harpootlian of Columbia was one of several attorneys representing the estates. He declined to comment, citing a confidentiality agreement signed by both sides, other than to point to a previous statement.
“Our clients are satisfied with the settlement and relieved to have this process over,” he told The Charlotte Observer.
The estates had previously filed wrongful death suits against Moore’s estate, all of which had previously been settled.
SETTLEMENT REPORT – WRONGFUL DEATH
Amount: $10.5 million
Injuries alleged: Wrongful death of three decedents, economic losses, emotional distress of survivors, loss of companionship, and burial expenses
Case names: Kathy Santandreu as Personal Representative of the estate of Cooper Gunnells Jr. v. Colonial Management Group and Stephen Gunnells and Kimberly G. Compton as Personal Representatives of the estates of Harry and Barbara Gunnells v. Colonial Management Group
Court: Lexington County Circuit Court
Case No.: 2018-CP-32-03112
Judge: Alison Lee
Date of settlement: Sept. 11, 2018
Insurance Carrier: Allied World Insurance Company
Attorneys for plaintiffs: Dick Harpootlian and Christopher Kenney of Richard A. Harpootlian in Columbia, William Nettles of Columbia, Mark Tinsley of Gooding & Gooding in Allendale, and William Kemp of Kemp Law Firm in Bamberg
Attorneys for defense: Susan McWilliams and Mark Moore of Nexsen Pruet in Columbia
- U.S. to pay $6.8M to family of two killed in plane crash
The U.S. government has agreed to pay $6.8 million to the family of a father and son who were killed after an Air Force F-16 Fighting Falcon jet crashed into their single-engine plane minutes after takeoff from the Berkeley County Airport, the family’s attorneys report.
James Brauchle and Mary Schiavo of Motley Rice in Mt. Pleasant report that the government acknowledged early on in the litigation that the acts and omissions of its employees caused the collision that killed Joseph Johnson, 30, and Michael Johnson, 68, in 2015. The family had alleged that the air traffic controller on duty failed to alert the jet’s pilot of the Johnsons’ presence and the impending danger in enough time to avert a collision.
Pursuant to the settlement, which U.S. District Judge Richard Gergel approved on May 18, 2018, Joseph Johnson’s estate will receive $3.5 million, and Michael Johnson’s estate will receive $3.3 million.
“No amount of money can fill the void or ease the pain caused by the sudden loss of a father and son,” Brauchle said in a written statement. “By acknowledging and taking responsibility for what went wrong, the government can now take the necessary steps to prevent this from ever happening to another family.”
The Johnsons had just taken off on their way to Myrtle Beach on the morning of July 7, 2015, when the Air Force jet rammed their single-engine Cessna 150C, near Lewisfield Plantation in Moncks Corner, cleaving it in two. They died aboard the plane, according to a National Transportation Safety Board investigation released in November 2016.
The jet’s pilot, Maj. Aaron Johnson (no relation), a member of the 55th Fighter Squadron at Shaw Air Force Base who was on a solo mission to practice instrument-assisted approaches at Charleston Air Force Base, parachuted to safety.
Lee Berlinsky of the U.S. Attorney’s Office in Charleston and Michael Kerns of the U.S. Department of Justice in Washington, D.C. represented the U.S. government. A spokesperson in the Charleston U.S. Attorney’s Office did not respond to a request for comment on the settlement.
SETTLEMENT REPORT – WRONGFUL DEATH
Amount: $6.8 million
Injuries alleged: Wrongful deaths (two)
Case name: Patrick Johnson as administrator of the estate of Michael Johnson, deceased and Hillary Elliott, as administrator of the estate of Joseph Johnson, deceased v. The United States of America
Court: U.S. District Court for the District of South Carolina
Case number: 2:17-cv-885
Judge: Richard Gergel
Date of settlement: May 18, 2018
Attorneys for plaintiff: James Brauchle and Mary Schiavo of Motley Rice in Mt. Pleasant
Attorneys for defendant: Lee Berlinsky of the U.S. Attorney’s Office in Charleston and Michael Kerns of the U.S. Department of Justice in Washington, D.C.
- Teacher, son settle car crash, negligent entrustment suit for $6.05M
A South Carolina school teacher and her 12-year-old son who both suffered severe brain injuries as a result of a car wreck have reached a $6.05 million confidential settlement with the at-fault driver and his employer, their attorney reports.
David Yarborough of Yarborough Applegate in Charleston reported that the 45-year-old woman and her son were driving home from school on a rainy day in December 2016. They were about to turn into their driveway when another vehicle traveling in the opposite direction hydroplaned, crossed the center line, and crashed head-on into their car, Yarborough said.
Both mother and son suffered diffuse axonal injuries, where the brain shifts inside the skull upon injury, and the son had facial fractures.
“They both continue to struggle both emotionally and cognitively and will require future medical care throughout their lives,” Yarborough said.
The pair sued, claiming negligence against the driver, whom Yarborough said was speeding, and negligent entrustment on the part of his employer.
Yarborough said the loan payments for the driver’s vehicle were paid directly from the employer’s bank account, and the employer deducted payments from the driver’s paycheck. The driver, a landscaper, said he and his boss co-owned the vehicle and that if his employment was terminated before the loan was paid off, he had to give the vehicle back to his boss.
Yarborough said that less than a week after the landscaper was hired, he was arrested for possession of marijuana and cocaine, which were found inside and just outside of the vehicle.
The landscaper admitted to using marijuana while driving the vehicle, Yarborough said. The employer hired him despite a background check that revealed the driver’s extensive criminal history, including previous possession of crack cocaine and marijuana charges.
His employer was informed of subsequent arrest for drug charges, but took no action to fire the driver or take back the vehicle. The crash occurred one week later after the arrest.
The driver admitted he crossed the center line, but blamed bad tires, Yarborough said.
The employer raised several defenses, Yarborough said: that he was simply a guarantor who had no ownership or control of the vehicle and there is no guarantor liability in South Carolina, that the driver was not working at the time of the collision and there was no evidence of alcohol or drug use at the time of the collision, and that even if he co-owned the car negligent entrustment was still inapplicable because the driver had an equal right to it.
As a result, an insurance adjuster initially assigned only a nuisance value to the case.
“We knew we didn’t have title or insurance in the employer’s name, so we cobbled together a wall of other evidence from small stones—language from the financing documents, payments being debited from the employer’s bank account, and the alleged agreement that employee had to return vehicle if he was terminated before it was paid off—to establish control or co-ownership,” Yarborough said. “Ultimately, they were convinced of our theory.”
Details about the case, including the names of the parties involved and their attorneys, were withheld subject to a confidentiality agreement.
SETTLEMENT REPORT – AUTOMOBILE ACCIDENT
Amount: $6.05 million ($4 million from employer personal liability policy, $2 million UIM policy limits, and $50,000 policy limits from at-fault driver)
Injuries alleged: Diffuse axonal injuries to the brain, facial injuries
Case name: Withheld
Court: Withheld
Date of settlement: Oct. 30
Attorney for plaintiffs: David Yarborough of Yarborough Applegate in Charleston
Attorney for defendants: Withheld
- Estate settles for $6M over cancer misdiagnosis
The family of a man who died of cancer after his doctor told him he was cancer-free has reached a $6 million settlement with the doctor’s practice, the plaintiff’s attorney reports.
The settlement was unusually large because of the defendant’s efforts to cover up the malpractice, said attorney Robert Phillips of McGowan, Hood & Felder in Rock Hill. Phillips withheld the names of his client, the general practice, and its attorneys pursuant to a settlement agreement.
“Theoretically, it should’ve been capped at $1.2 to $1.4 million,” Phillips said. “But there are exceptions to non-economic caps for altered records, fraud, misrepresentations and gross negligence. Since we never went to trial, we didn’t have a jury say what it was, but when they pay that kind of money, it’s pretty much a tacit admission.”
Phillips said his client went to get a mole checked out by his family doctor in August 2014. The doctor took a sample to send to an oncologist for testing. Ten days later, the client returned for a follow-up appointment to get the results, and a nurse or nurse practitioner told him all was well without showing him the test results. The client asked if he could see the lab report, but was told it was unnecessary and that “no news is good news.”
A year later, the client returned for another checkup and again complained that the mole was back and bothering him. Another biopsy was taken, but this time results showed that the sample was malignant melanoma. The client was referred to a dermatologist, who Phillips said was aghast when he heard his client’s story.
“My guy asks the doctor, ‘How is this cancer this year when they tested this same mole last year?’ and the dermatologist says, and I quote, ‘that’s [expletive],’” Phillips said.
Phillips said the dermatologist said that the report from the year before would have also shown that the mole was malignant. He asked the family doctor for the lab report from the previous test and was told the office couldn’t find it.
Soon thereafter, test results showed the client’s cancer had spread from his skin to his lymph nodes, liver, and leg. He immediately began chemo and radiation therapy, but his prognosis was poor.
The client filed a lawsuit soon after but died before the case could go to trial. Shortly before the client’s death, a judge granted an emergency motion to take a deposition to preserve his testimony. Phillips said the client died within ten days of recording the video deposition.
Phillips said the doctor’s office claimed that it always shows patients the results of lab reports, and that it would not have told him “no news is good news.” It alleged that the plaintiff never came in for his follow-up appointment, and as a result, it never realized it had mistakenly forgotten to send his report off for testing.
But Phillips said that by looking through pathology records provided during discovery, he found records which showed that the office had a habit of not telling clients their pathology results.
“We caught them in a huge lie about having a horrible policy that they denied and in an attempt to prove to me that it was a simple mistake.”
Phillips said the claim that his client never returned for his follow-up was also disproven by medical records turned over in discovery.
“You’d be surprised by the irregularities in documents you can find when you blow something up in high resolution,” Phillips said. He said that while looking through the documents, he noticed that a document was mislabeled as being an office visit log when it was really a telephone log. After digging deeper, Phillips said he found other anomalies in dates which seemed to confirm they had been tampered with after the fact.
After Phillips pointed these out to opposing counsel and said he would amend the complaint to allege violations of the Racketeer Influenced and Corrupt Organizations Act and mail fraud claims, he said the defendants accepted his offer to settle the case for $6 million within a week.
“Everyone told me I was crazy for holding out for $6 million, saying nobody gets this much for a noneconomic medical malpractice case,” Phillips said. “It was a case that I felt motivated to work harder on and spend more time and money on than any other case I’ve had in my life.”
SETTLEMENT REPORT – MEDICAL MALPRACTICE
Amount: $6 million
Injuries alleged: Death
Case name: Withheld
Court: Withheld
Mediator: Thomas Wills IV of Wills Massalon & Allen in Charleston
Date of settlement: July 2018
Demand: $6 million
Attorney for plaintiff: Robert Phillips of McGowan, Hood & Felder in Rock Hill
Attorneys for defendant: Withheld
- Jury awards $5.8M to injured student athlete
A Charleston County jury has awarded nearly $6 million to a student athlete who alleged that he was rushed back into playing basketball after sustaining a concussion.
After returning to a game within five weeks of being diagnosed with a concussion, Brett Baker-Goines sustained a second concussion that resulted in permanent traumatic brain injury, according to his suit against the First Baptist School of Charleston.
On May 18, 2018 a jury found that the private school and two of its basketball coaches were negligent and awarded 19-year-old Baker-Goines $5,872,583 in damages.
“Safety is not an accident. Injuries like Brett’s don’t happen if the return to play protocol rules are as important as the playbook,” Baker-Gonies’ lead trial attorney, W. Mullins McLeod Jr. of the McLeod Law Group in Charleston, said in a news release.
Baker-Goines alleged in his suit that he sustained his first concussion in December 2013, when he fell on the basketball court and his head hit the floor. He was diagnosed with a concussion at the Medical University of South Carolina.
After he returned to school, First Baptist put Baker-Goines through its return-to-play protocol—a requirement under the South Carolina Independent School Association—but allowed him to play basketball again in January 2014, despite the fact that he continued to have concussion-related symptoms, according to his suit.
During the game, another player hit Baker-Goines in the head and he “saw stars,” his complaint states: “Thereafter, plaintiff’s headaches, sensitivity to light and sound, and fatigue escalated in severity, and Plaintiff also began experiencing nausea and vomiting, severe dizziness, insomnia, mood lability, and increased difficulty in concentration and memory.”
In the wake of the verdict, Baker-Goines said in a prepared statement that his case was a “five year battle that ended with the truth.”
VERDICT REPORT – NEGLIGENCE
Amount: $5,872,583
Injuries alleged: Traumatic brain injury
Case name: Brett Baker-Goines v. First Baptist School of Charleston, et al.
Court: Charleston County Circuit Court
Case No.: 2016-CP-10-6500
Judge: Robert Young
Date of verdict: May 18
Attorneys for plaintiff: W. Mullins McLeod Jr. and Jacqueline Edgerton of the McLeod Law Group in Charleston
Attorney for defendant: W. James Flynn of Goodman McGuffey in Columbia
- Out-of-state crash tried here, nets $5M verdict
A car crash involving two South Carolina residents on a North Carolina highway led to a personal injury lawsuit and a $5 million verdict for the plaintiff, her attorneys report.
Roy Willey IV of the Anastopoulo Law Firm in Charleston said that Daisy Frederick was driving south on U.S. Route 52 in Anson County, North Carolina, on April 29, 2015, when Daniel McDowell, heading north, crossed the centerline and caused their two vehicles to collide.
Frederick claimed that McDowell was speeding, driving while distracted and otherwise operating his vehicle negligently.
McDowell claimed that he hydroplaned and was stopped in the road and backing up when Frederick crashed into him, Willey said.
In addition to injuries to her back, arm, and chest, Frederick suffered two broken legs and was out of work for a year, Willey said.
“She had a rod inserted and her total medicals were just over $250,000,” Willey said. “Thankfully, she is now back working, and has made a full recovery.”
Court documents show that in September, Frederick made an offer of judgment to McDowell for $300,000.
Of the jury’s decision, Willey said, “The jury did the right thing for a very deserving client.”
VERDICT REPORT – AUTOMOBILE ACCIDENT
Amount: $5 million
Injuries alleged: Broken legs; injuries to back, arm, and chest
Case name: Daisy Frederick v. Daniel McDowell
Court: Marlboro County Circuit Court
Case No.: 2016-CP-34-00072
Judge: Paul Burch
Date of verdict: Jan. 31, 2018
Attorneys for plaintiff: Eric Poulin, J. Camden Hodge, and Roy Willey IV of the Anastopoulo Law Firm in Charleston
Attorney for defendant: David Sligh of Turner Padget Graham & Laney in Myrtle Beach
- Woman settles car crash lawsuit for $4M
A woman who was severely injured in a car crash and spent five months in the hospital has settled the case for $4 million, her attorney reports.
David Lail of Yarborough Applegate in Charleston reports that his client was driving through York County on Highway 21 on Sept. 27, 2016 when the driver of a Rock Hill Piping and Fabrication industrial truck attempted to drive across all four lanes of the highway and failed to yield the right-of-way. He drove directly into the woman’s path, causing a “high-speed collision,” Lail said.
The woman was hospitalized for five months and suffered several injuries, including rib fractures, laceration of the liver, left arm fracture with shoulder dislocation and a left hip fracture.
“Within the first few minutes of deposition questioning early in the litigation, the driver admitted fault for causing the crash after he initially hesitated and tried to shift the blame to my client,” Lail said.
Attorneys for the excess insurance carrier hired a team from Weinberg, Wheeler, Hudgins, Gunn and Dial in Miami and Atlanta, who focused on the woman’s pre-existing medical conditions, he said.
The defense pointed out that the woman had post-polio syndrome; had fallen more than 30 times in the four years leading up to the crash; had more than 250 visits to a chiropractor in that same time period; had undergone two prior back surgeries and a neck surgery, and that she was already disabled before the wreck, Lail said.
An expert doctor for the defense said that the woman required future medical care because of the crash, but that she would have needed the care anyway, because of her pre-existing conditions, Lail said.
SETTLEMENT REPORT – AUTOMOBILE ACCIDENT
Amount: $4 million
Injuries alleged: Rib fractures, laceration of the liver, left arm fracture with shoulder dislocation, and left hip fracture
Case name: Laura Ruth Ash v. Rock Hill Industrial Piping & Fabrication Inc. and David Lane Webb
Court: York County Circuit Court
Case No.: 2017-CP-46-00014
Mediator: Earl Ellis in Columbia
Date of settlement: Aug. 24
Insurance carriers: Berkley Southeast Insurance Group (primary insurer) and Navigators Insurance Company (excess insurance coverage provider)
Attorneys for plaintiff: William Applegate and David Lail of Yarborough Applegate in Charleston
Attorneys for defendants: Daniel Settana, Skip Hardin, and Kyle McGann of The McKay Firm in Columbia; and Lawrence Burkhalter, Alec Heydemann, and Kevin Williams of Weinberg, Wheeler, Hudgins Gunn and Dial
- $3.71M verdict awarded in crash caused by postal worker
The widow of a 49-year-old North Carolina man who was killed in a 2015 motorcycle accident in Conway has been awarded a $3.71 million wrongful death verdict against the U.S. government after a federal judge ruled that a U.S. Postal Service worker had caused the crash by negligently crossing into the path of a group of motorcyclists riding together along Highway 701.
Jerry Jackson and nine other riders were returning to North Carolina from Charleston on Sept. 12, 2015, when a rural mail carrier driving her personal vehicle entered into traffic, killing Jackson and injuring two others. The carrier was using the USPS’s preferred driving method for rural delivery, sitting on the center console area, operating the steering wheel with her left hand and the brake and accelerator with her left foot. Her right foot, which is typically used for braking and accelerating, was in the passenger seat well to allow her easier access to the mail.
It was the carrier’s first day delivering mail by herself, and she testified that she was trying to get turned back around after missing a turn on her route, and that she believed that her foot slipped off the edge of the brake and accidentally hit the accelerator.
Under the Federal Tort Claims Act, Jackson’s widow had a choice of venues, and chose to bring suit in South Carolina, where the crash occurred. In an April 12, 2018, order following a four-day trial, Judge R. Bryan Harwell awarded the family $4,000,000 for non-pecuniary loss, $120,389 for loss in family services, and $11,527 for burial services.
All of those amounts were reduced by 10 percent based on a “slight degree” of comparative negligence because of how closely Jackson was following the riders ahead of him. The government had argued that Jackson was negligent and could have avoided the accident, but Harwell ruled that any negligence on Jackson’s part was “far outweighed” by that of the mail carrier.
John Hudson and John Cuttino of Gallivan White and Boyd in Columbia, J. Dwight Hudson of Hudson & Graham in Myrtle Beach, and Gene Connell of Kelaher Connell and Connor in Surfside Beach represented the plaintiff. John Hudson said that all of the riders were highly experienced and that, helpfully for the plaintiffs, an independent eyewitness testified to corroborate their version of events.
“The testimony from group members and the independent witness substantiated that these guys were doing everything that they should have been doing,” Hudson said. “Unfortunately, they ended up being in the wrong place at the wrong time.”
VERDICT REPORT – FEDERAL TORT CLAIMS ACT
Amount: $3,718,724
Injuries alleged: Wrongful death
Case name: Jackson v. United States of America
Court: U.S. District Court for the District of South Carolina
Case number: 4:16-cv-03219
Judge: R. Bryan Harwell
Date of verdict: April 12, 2018
Special damages: $4,000,000 for non-pecuniary loss, $120,389 for loss in family services and $11,527 for burial services (all reduced by 10 percent for comparative fault)
Attorneys for plaintiff: John Hudson and John Cuttino of Gallivan White and Boyd in Columbia, J. Dwight Hudson of Hudson & Graham in Myrtle Beach, and Gene Connell of Kelaher Connell and Connor in Surfside Beach
Attorneys for defendant: Lee Berlinsky and Matthew Modica of the U.S. Attorney’s Office in Charleston
- Paralyzed vet settles with VA for $3.2M
A paralyzed Vietnam War veteran from Columbia has settled a suit with the U.S. government for $3.2 million after offering evidence that the Veterans Affairs hospital that treated him failed to send him to a spine surgeon, leading to his paralysis, his attorneys report.
Lee Atkinson of Blasingame, Burch, Garrard & Ashley in Athens, Georgia, reported that the veteran, whose name was withheld, suffered a lower back injury in a helicopter crash during the war and was briefly hospitalized before finishing his tour and being honorably discharged and receiving a Purple Heart.
After the war, he settled in Newberry County. Over time, his back injury became painful and he sought treatment at the William Jennings Bryan Dorn VA Medical Center in Columbia.
An MRI showed he had a disc extrusion that severely compressed the cauda equina nerves in his lower spine, Atkinson said. Expert witnesses later confirmed he required surgery to decompress the nerves to prevent permanent damage and the resulting lack of sensation and function below the waist.
Instead of referring him to a surgeon, the Columbia VAMC gave him drugs to manage his pain and referred him to a physical therapist, his complaint alleged. After 16 months of “ineffective treatment,” the veteran woke up one day in excruciating pain, realizing he had lost the ability to stand.
He was admitted to the VAMC in 2012, and underwent another MRI confirming his compressed nerves. He said that rather than conduct surgery or immediately refer him to a surgeon, the VAMC heavily drugged him and put him into a medically induced coma. When he woke up, he realized he had lost sensation and function below the waist.
The VAMC physicians eventually sent him to a surgeon a few weeks later, where he underwent decompression surgery, but his cauda equina nerves had already been permanently damaged, the complaint alleged. As a result, he lost sensation in his legs below the knees and is incapable of raising his feet. While he is able to walk short distances with the aid of a rolling walker and braces, he primarily relies on a wheelchair to get around.
The veteran sued the federal government in 2015, claiming the VAMC went beyond regular medical malpractice and was grossly negligent in failing to treat his nerve compression, which could have prevented his paralysis.
At mediation, the government argued there was no gross negligence, and that there should have been an offset of the life care plan and economic damages based on the notion that the veteran could continue receiving treatment at the VAMC free of charge.
The plaintiff’s lawyers argued that the defense didn’t properly identify the VA care providers testifying on their behalf as experts. U.S. District Judge Donald Coggins found that the defense experts’ testimony on violations of the standard of care and on causation should be excluded. The veteran won summary judgment on those issues and the government settled soon thereafter.
John Kassel and Theile McVey of Kassel McVey in Columbia served as local counsel in the case.
SETTLEMENT REPORT – MEDICAL MALPRACTICE
Amount: $3,225,000
Injuries alleged: Paralysis below the waist
Case name: Withheld
Court: U.S. District Court for the District of South Carolina
Judges: Terry Wooten and Donald Coggins Jr.
Mediator: Bill McDow of Richardson Plowden in Columbia
Date of settlement: Oct. 15, 2018
Special damages: $1 million life care plan
Attorneys for plaintiff: John Kassel and Theile McVey of Kassel McVey in Columbia; Lee Atkinson and James Matthews of Blasingame Burch Garrard Ashley in Athens, Georgia; and Erin Bevins of Scottsdale, Arizona
Attorneys for defendant: Barbara Bowens and Marshall Prince of the U.S. Attorney’s Office in Columbia
- Veteran settles med-mal case against gov’t for $2.5M
A South Carolina veteran who claimed that a radiologist with the Veterans Administration failed to identify a cancerous mass in his lower back has settled his case with the U.S. government for $2.5 million, his attorneys report.
Attorneys Harry Goldberg, William Padget, and Carl Hiller in Columbia report that the plaintiff, whose name was withheld, alleged that the radiologist failed to identify a mass that was apparent in his lower back after an October 2013 MRI.
By the time the mass was discovered in May 2014, it had grown. The plaintiff’s treatment included radiation therapy, chemotherapy and a stem cell transplant, the attorneys said.
The plaintiff alleged the delay in diagnosis allowed the tumor to progress, ultimately to multiple myeloma, a type of cancer. The plaintiff settled the lawsuit on May 1, 2018, and by that time, the cancer was in remission.
The government contested causation and that veteran’s damages were attributable to the delayed diagnosis, the attorneys said.
SETTLEMENT REPORT — MEDICAL MALPRACTICE
Amount: $2.5 million
Injuries alleged: Multiple myeloma
Case name: Withheld
Court: Withheld
Date of settlement: May 1, 2018
Attorneys for plaintiff: Harry Goldberg, William Padget, and Carl Hiller in Columbia
Attorneys for defendant: Withheld
- Jury awards $2.2M to man injured in car crash
In what his attorney believes is the largest automobile accident verdict in the history of Dorchester County, a jury there has awarded $2.2 million to a plumber and married father of three who suffered serious back injuries after he was rear-ended in car crash.
Terence Weese was driving south on Bacons Bridge Road in Summerville in 2016 when a teenage driver, Samantha Johnson, rear-ended him while he was at a stoplight, said Mark Bringardner of the Joye Law Firm in Charleston.
Weese suffered disc herniation to four upper vertebrae and spinal cord compression, both of which can cause significant pain, and underwent a three-level spinal fusion surgery.
“The pain and distress caused by the impact were significant, but that was just the beginning,” Bringardner said. “This man suffered during the weeks and months of his recovery. He experienced excruciating pain. He underwent a serious and invasive spinal fusion surgery. He will be dealing with the results of this collision for the rest of his life.”
The jury returned the verdict on Nov. 28, 2018, after a three-day trial and two hours of deliberation. Bringardner said he believed the jury returned such a hefty verdict because there was overwhelming evidence that Weese would require a lifetime of medical treatment, including a revision surgery.
There isn’t a cure for Weese’s injury, Bringardner said, “and all the while, he feels like the insurance company is not taking him seriously and giving him the runaround. We had to force the insurance company to make this right for him.”
Bringardner said that he believed the defendant was distracted and possibly looking at her cell phone when the crash occurred. The defense disputed that the defendant was looking at her phone, but admitted that she was at fault for the crash. The defense also argued that Weese’s pain was from pre-existing degenerative conditions, not the crash, Bringardner said.
It is the largest such verdict from the county that has ever been reported to Lawyers Weekly.
SETTLEMENT REPORT — AUTOMOBILE ACCIDENT
Injuries alleged: Disc herniation to four vertebrae, spinal cord compression
Case name: Terence Weese v. Samantha Johnson
Court: Dorchester County Circuit Court
Case No.: 2017-CP-18-01447
Judge: Diane Goodstein
Date of verdict: Nov. 28, 2018
Special damages: $353,000 in past medical bills; $170,000 in future medical bills
Insurance carrier: Geico
Attorney for plaintiff: Mark Bringardner of the Joye Law Firm in Charleston
Attorney for defendant: Nickisha Woodward of Turner Padget in Charleston
- $2M settlement for writer hurt by drunken driver
A crash involving a drunken driver on Interstate 95 in Jasper County has resulted in a $2 million settlement for a South Carolina-based self-help writer.
Kenneth Berger of Columbia and David Yarborough and David Lail of Yarborough Applegate in Charleston report that Doug Mincey, 57, of Bluffton had slowed for traffic on I-95 in March 2016 when another vehicle hit the back of his car. Berger said that the other driver, Eric Akers, had been drinking and driving while travelling up I-95 from Florida, and a rear-facing dashcam in a police car recorded him fading in and out of consciousness and asking the officer where he was after the crash.
“The video was so good that we didn’t need his deposition,” Berger said.
Mincey said Akers had offered to pay him if he didn’t call the police after the crash, and then Akers stumbled and almost fell into Mincey’s arms, Berger said. He said Akers, who had prior arrests for drunken driving, later pleaded guilty to DUI.
Mincey, a retired engineer who served in the military and put himself through college after his parents died, had been working on an inspirational book for boys, “A Guy’s Guide to Being Great,” the publication of which was delayed for about a year as a result of the crash. His wife created a nonprofit group that helps empowers girls.
“We were probably going to have jurors who benefitted from Doug and his wife’s nonprofit work,” he said.
Mincey sustained a lower back injury that required several surgeries, Berger said. He added that Mincey also hit his head on the steering wheel during the crash and had concussive symptoms. His medical bills totaled about $400,000.
Mincey’s underinsured motorist carrier, USAA, agreed to pay $2 million to settle the case prior to trial, Berger said.
SETTLEMENT REPORT – AUTOMOBILE ACCIDENT
Amount: $2 million
Injuries alleged: Back injury, concussive symptoms
Case name: Douglas Mincey v. Eric Akers
Court: Jasper County Circuit Court
Case No.: 2017-CP-27-00101
Mediator: Blaney Coskrey of Columbia
Date of settlement: April 6, 2018
Insurance carrier: USAA (underinsured motorist carrier)
Attorneys for plaintiff: Kenneth Berger of Columbia and David Yarborough and David Lail of Yarborough Applegate in Charleston
Attorney for defendant: Ronald Diegel of Murphy & Grantland in Columbia for USAA
- Dram shop suit settled for $1.85M after fatal crash
The family of a 24-year-old man who died after being hit by a drunk driver while riding his moped has confidentially settled a lawsuit against the driver and bar that served him for $1.85 million, the family’s attorney said.
David Lail of Yarborough Applegate in Charleston report that the crash happened at about 2 a.m. on Aug. 27, 2017. The man, whose name was withheld pursuant to a confidentiality agreement, suffered severe injuries and died two months later. Other details of the case, such as the location of the crash, and the identities of the driver and the bar, were also withheld.
The driver’s BAC was .13 at the time of the crash, Lail said.
“Anytime we represent a victim of drunk driving, we immediately begin a dram shop investigation,” Lail said.
The attorneys were initially told that the bar that had served the driver had been closed for several months leading up to the crash, and its insurance coverage had been cancelled, but it had reopened for one night to host a benefit event, with all proceeds donated to charity.
“We pressed on and eventually recovered under three separate policies,” Lail said.
The defense contended that the charity event raised a “social host” defense to dram shop claims. They also focused on the fact that the event was shut down at midnight, establishing a two-hour gap until the time of the collision, which created creating an opportunity for the driver to have been served alcohol at another establishment.
However, in a recorded interview, the driver stated that he had been drinking beer at the bar and when he left he took some beer with him.
The driver said that he did not drink any alcohol before going to the bar, and that he was on his way home when the crash occurred and that he did not make any other stops after leaving the bar, Lail said.
SETTLEMENT REPORT — DRAM SHOP LIABILITY
Amount: $1.85 million
Injuries alleged: Death
Case name: Withheld
Court: Withheld
Date of settlement: Oct. 29, 2018
Attorneys for plaintiff: David Lail and David Yarborough of Yarborough Applegate in Charleston
Attorneys for defendant: Withheld
- Family of man ejected from car settles dram shop case for $1.625M
The family of a man who died after being ejected from a vehicle being driven by a drunken driver has settled their dram shop claims against two Columbia bar for $1.625 million, their attorneys report.
David Lail of Yarborough Applegate in Charleston reports that his client, Clint Cobb, died in the early morning of Feb. 28, 2016, after he and Thomas Alexander left Gator’s on Bluff Road and Hazelwood Party Shop. Lail said that not long after the pair left Hazelwood, around 4:30 a.m., Alexander’s vehicle left the roadway, hit an embankment, and flipped several times. Alexander survived the crash.
Lail said that Hazelwood’s surveillance video showed an “extremely intoxicated” Alexander being escorted out of the bar by a bartender, then stumble out of the bar and down the sidewalk before getting into his car.
“This evidence clearly contradicted the position taken by Hazelwood, which was that Alexander was only served one-and-a-half ounces of whiskey mixed with ginger ale in the nearly three hours he was at the bar,” Lail said.
During a deposition, Hazelwood’s bartender admitted to serving intoxicated customers in order to make money, Lail said. Not long after the deposition, he said, Hazelwood’s insurer tendered its $1 million policy limits.
Lail said that Alexander and Cobb’s first stop of the night was at Gator’s, and a bartender there said that Alexander was served only three liquor shots in the two hours that he was there. Defense counsel argued that Alexander was only served four drinks at both bars over a five-hour period, and further argued that Alexander and Cobb were using illegal drugs that were revealed in toxicology reports.
“They also argued that plaintiff was ‘part of the party,’” said Lail’s law partner and co-counsel, David Yarborough.
But Alexander’s blood-alcohol concentration almost an hour after the crash was nearly .17, Lail said. According to testimony by Dr. David Eagerton, a former toxicologist for the South Carolina Law Enforcement Division, Alexander would have needed to consume at least 18 drinks in that time frame to reach such a BAC.
The case was mediated by Walter Todd Jr. of Columbia. Brett Woron of Branch & Dhillon in Columbia also represented the estate.
SETTLEMENT REPORT — DRAM SHOP LIABILITY
Injuries alleged: Wrongful death
Amount: $1.625 million
Case name: Miriam Cobb and Owens Taylor Cobb III, Individually and as the Personal Representative of the Estate of Charles Clinton Cobb v. BJAM, LLC d/b/a Gator’s on Bluff Road et al.
Case No.: 2016-CP-40-06139
Court: Richland County Circuit Court
Date of settlement: July 31, 2018
Mediator: Walter Todd Jr. of Columbia
Attorneys for plaintiffs: David Yarborough and David Lail of Yarborough Applegate in Charleston and Brett Woron of Branch & Dhillon in Columbia
Attorneys for defendants: Karl Brehmer of Brown & Brehmer in Columbia for Hazelwood Party Shop and Glena Myers; and R. Hawthorne Barrett of Turner Padget Graham & Laney in Columbia for BJAM, d/b/a Gator’s on Bluff Road and Jo Moore
- Laid-off nuclear plant workers get $1.59M in back pay
Fifty laid-off nuclear plant workers have settled their Fair Labor Standards Act claims against a major engineering and construction firm and will receive $1.59 million in overtime back pay, their attorneys report.
William Applegate of Yarborough Applegate in Charleston and Amy Gaffney of Gaffney, Lewis, and Edwards in Columbia report that thousands of contractors working for Fluor Enterprises were terminated without notice in July 2017 when South Carolina Electric & Gas and Santee Cooper abruptly stopped construction on the V.C. Summer Nuclear Plant near Jenkinsville. The $9 billion project included the construction of two nuclear reactors at the Fairfield County site.
Just weeks after the layoff, those workers filed a Worker and Retraining Notification Act (WARN Act) class action lawsuit against Fluor, the leading construction contractor on the project, and WECTEC, a subsidiary of the nuclear energy company Westinghouse. The plaintiffs sought damages for not receiving the 60-day notice required by federal law, the release states, adding that Fluor employees were “among the hardest hit by the shutdown.”
The dispute involving the alleged WARN Act violations was not resolved as part of the settlement. But the plaintiffs’ attorneys say that during the investigation into those claims, they discovered that Fluor had withheld overtime pay for a group of employees for extended periods, which led to the FLSA claims for the 50 workers involved in the settlement.
Applegate said that he believes that his clients are entitled to “significant damages,” and that he and his co-counsel are pleased that this portion of the case was resolved in a timely manner and that his clients were able to get the money they were owed.
“This is especially important due to the fact that many of our clients are still in the process of seeking new employment and even relocating after giving years of service to Fluor,” he said. “Furthermore, we look forward to continuing to represent the entire class of thousands of employees in the remaining lawsuit on the WARN Act claims.
SETTLEMENT REPORT — FAIR LABOR STANDARDS ACT
Amount: $1.59 million
Case name: Preston et al. v. Fluor Enterprises, Inc.
Case No.: 0:17-2184
Court: U.S. District Court for the District of South Carolina
Date of settlement: July 1
Attorneys for plaintiff: William Applegate of Yarborough Applegate in Charleston and Amy Gaffney of Gaffney, Lewis, and Edwards in Columbia
Attorney for defendant: J. Hagood Tighe of Fisher Phillips in Columbia
- Family of man killed in tractor-trailer crash settles suit for $1.5M
The family of a Bluffton man who was killed after he slammed into a tractor-trailer that was backing into a driveway has settled a lawsuit against the truck’s owner for $1.5 million, the family’s attorney reports.
William Applegate of Yarborough Applegate in Charleston reports that Robert and Karen Roehl were traveling south on U.S. 17, a four-lane road divided by a grass median, near Adams Run around 7 p.m. on Oct 21, 2017.
At the same time, a tractor-trailer owned by Low Country Real Estate was driving north, and the driver pulled the tractor-trailer on the median in order to back up into a driveway on the southbound side. The driver blocked both lanes of traffic with his vehicle, Applegate said, and the Roehls crashed into the truck because they couldn’t stop in time.
The crash destroyed the driver’s side and front side of the passenger vehicle. Robert Roehl died several hours later, while Karen Roehl suffered significant and permanent injuries and is still recovering, Applegate said.
There was $1 million in liability coverage related to the tractor-trailer, and the defendant was insolvent, Applegate said. The carrier tendered the policy limits. The Roehls also carried underinsured coverage of $400,000, and Karen Roehl received the $100,000 limits of her husband’s bodily injury policy.
“Clearly, this tragic case is one which demonstrates the inadequacy of insurance related to many companies doing business in our state, and also underscores the importance for everyone to carry as much UIM coverage as possible,” Applegate said.
SETTLEMENT REPORT – WRONGFUL DEATH
Amount: $1.5 million
Injuries alleged: Wrongful death, left hip fracture, right ankle fracture
Case name: Karen Roehl, individually and as PR for the Estate of Robert Walter Roehl v. Low Country Real Estate Services and John Grover Reynolds
Court: Colleton County Circuit Court
Case No. 2018-CP-15-00188
Attorney for plaintiffs: William Applegate of Yarborough Applegate in Charleston
Attorney for defendants: Francis Ervin of Rogers, Townsend & Thomas in Charleston
- (tie) Golf course slip-and-fall nets $1.4M settlement
A 70-year-old man who went out to hit the links at a Myrtle Beach golf course has reached a $1.4 million settlement after the links hit him back, his attorneys report.
Douglas Jennings of Yarborough & Applegate of Charleston reports that Jack Kell was golfing at Legends Golf Resort’s Parkland course in August 2015. Sand traps were apparently not the only hazard that day, as Kell slipped and fell on a wooden bridge that was covered in algae and his feet went “right out from under him,” Jennings reported.
Kell landed on his hip, and an MRI showed a partial tear in his left hamstring and bulging disc in his lumbar spine. He underwent two surgeries over the ensuing years, a laminectomy and an advanced multi-level fusion with bone grafts and an external bone growth stimulator.
Kell sued, contending that the course failed to properly maintain the bridge and that he wasn’t the first golfer who fell while crossing it. Jennings said that the course was aware of at least nine prior falls on the bridge. In January 2012, his firm represented a retired firefighter also fell and blew out his knee. That case ultimately resulted in a $400,000 settlement after a trial had gotten underway.
“Another devastating injury resulting from the algae-covered wooden bridge—and another lawsuit—could have been prevented if the course made any changes after the trial in 2012,” said Gerald Harmon of Harmon & Felts in Georgetown, who was Jennings’ co-counsel on the case. “[Kell] is a hard-working family man. Although he’s happy with the result, he would certainly prefer the injury not have occurred. This injury could have been prevented.”
Jennings said that the Parkland Course is one of five courses owned by the Legends Group. The course changed ownership and insurance carriers between the 2012 trial and the Kell matter.
Thomas Wills of Wills, Massalon & Allen in Charleston mediated the settlement, which was agreed to Oct. 4, 2018.
SETTLEMENT REPORT — SLIP AND FALL
Amount: $1.4 million
Injuries alleged: Partial tear in left hamstring and disc bulging in lumbar spine
Case name: Kell v. Legends SCNC Holdings LLC, CGPM Course Managers, LLC, and Century Golf Partners Management LP
Court: Horry County Superior Court
Case No.: 2016-CP-26-8198
Mediator: Thomas Wills of Wills, Massalon & Allen in Charleston
Date of settlement: Oct. 4, 2018
Attorneys for plaintiff: Douglas Jennings of Yarborough & Applegate in Charleston and Gerald Harmon of Harmon & Felts in Georgetown
Attorney for defendant: James Saleeby of Aiken Bridges in Florence
- (tie) Delivery driver has seizure, company pays $1.4M
A major pizza delivery corporation has agreed to pay $1.4 million to settle a negligent hiring case after one of its delivery drivers had a seizure and rear-ended a 70-year-old man, the plaintiff’s attorneys have reported.
The corporation’s name and other aspects of the case have been withheld pursuant to a confidentiality agreement, according to one of the plaintiff’s attorneys, Kevin Smith of Hoffman Law Firm in North Charleston.
The corporation hired the driver, Smith said, despite being aware that he had a seizure disorder. Smith said that during the job interview the corporation did not inquire into the man’s seizures, medications, or whether he could safely operate a vehicle, because the corporation believed it was restrained by the Americans with Disabilities Act.
“All that was requested was a copy of his driver’s license and proof of insurance,” Smith said.
Five months after being hired, the man had a seizure and rear-ended the elderly driver, who had a history of back problems.
A human resources specialist stated that the ADA not only allows, but requires, an employer to inquire further—after an employment offer is made—to protect the employee from being placed in a job where he poses a significant threat of harming himself or others. An occupational medicine specialist opined that he would not have cleared the man to drive for a living because the man’s symptoms and the fact that he was not taking his medication as prescribed made another seizure foreseeable, Smith said.
Smith said his client made a non-negotiable offer of $1.4 million that was paid shortly before trial.
SETTLEMENT REPORT—NEGLIGENT HIRING
Amount: $1.4 million
Injuries alleged: Low back injury
Case name: Withheld
Special damages: $220,704 (medical bills)
Court: Withheld
Date of settlement: August 9, 2018
Attorneys for plaintiffs: Kevin Smith and Amanda Stearns of Hoffman Law Firm in North Charleston
Attorneys for defendants: Withheld
- (tie) Insurance, municipal fund pay $1.4M for head-on crash
The estate of a man killed when his vehicle was struck head-on during a police pursuit has settled its wrongful death claims for a total of $1,400,000, his attorneys report.
On April 6, 2017, Liberty police well exceeded 100 mph while chasing 29-year-old Nicholas Blackstock through town for a faulty brake light. According to reports, officers had gotten word from another police department that Blackstock might have had drugs in the vehicle.
The chase, which lasted approximately 10 minutes, ended shortly after Blackstock and a pursuing officer crossed the centerline on U.S. Highway 123. The chase continued for about a mile, against oncoming traffic, before Blackstock crashed into 59-year-old Steven Richardson, killing him.
Attorneys for Richardson’s estate, Samuel Clawson Jr. and Christy Fargnoli of Clawson & Fargnoli in Charleston, said that Blackstock was under the influence of a “variety of drugs,” including methamphetamine, at the time of the crash.
Clawson and Fargnoli said that Richardson’s insurer, Auto Owners, tendered the full $300,000 limits of underinsured motorist bodily injury coverage, but only $50,000 of the UIM property damage because the issue of pro rata allocation of punitive damages across coverages was a novel question that had been certified to the South Carolina Supreme Court in a different case.
After the court determined in Geico v. Poole that these damages should not be allocated pro rata, the attorneys said, Auto Owners tendered the remaining $250,000 of UIM property damage coverage.
Blackstock’s insurer, Geico, tendered $50,000 for bodily injury and property damage limits.
Richardson’s estate also claimed that Liberty’s police officers were negligent in the “initiation, conduct, and failure to terminate” the high-speed pursuit, asserting that Blackstock’s initial violation, an equipment violation, was far outweighed by the danger a high-speed chase posed to the public.
“Multiple occurrences were alleged under the South Carolina Tort Claims Act in an effort to obtain multiple actual damage caps,” Clawson and Fargnoli wrote in an email. “The South Carolina Municipal Insurance Risk Financing Fund tendered $750,000 on behalf of the City of Liberty to settle all claims pre-suit.”
Clawson said that the firm is proud to have maximized the value of the various claims by “advancing arguments relating to the recovery of punitive damages from property damage coverage under an insurance policy and multiple occurrences” under the Tort Claims Act.
“We were not the first to advance these arguments, but hopefully our work on these claims will assist future plaintiffs in obtaining full value on their claims and not allow insurance companies and government entities to hide behind policy language and statutory law to improperly limit their exposure,” Fargnoli said.
SETTLEMENT REPORT — WRONGFUL DEATH
Amount: $1.4 million
Case name: Tracy Mattison as Personal Representative of the Estate of Steven Richardson vs. Nicholas Blackstock and City of Liberty
Court: Pickens County Circuit Court
Case No.: 2017-CP-39-01339
Date of settlement: Aug. 1, 2018
Most helpful experts: Geoffrey Alpert, criminal justice professor at the University of South Carolina and police misconduct expert witness
Attorneys for plaintiff: Samuel Clawson Jr. and Christy Fargnoli of Clawson Fargnoli in Charleston
Attorneys for defendant: Kyle Thompson of Willson Jones Carter Baxley in Greenville for Nicholas Blackstock; James P. Walsh of Clarkson Walsh & Coulter in Greenville for Auto Owners; Jim Jolly of Logan Jolly & Smith in Anderson for the City of Liberty and the officers individually
- Jury gives $1.3M for scarring of infant in hospital
An Orangeburg County jury has awarded a 3-year-old boy and his mother a $1.3 million medical malpractice verdict against Regional Medical Center, which is owned by Orangeburg and Calhoun counties.
The plaintiffs that RMC was grossly negligent in providing care for the son of Tekayah Hamilton, who was one month old at the time, in October 2014.
David Williams of Williams & Williams in Orangeburg said that the child was injured after arriving at the hospital with a fever of 102.6, as a result of an IV.
“The IV was not properly flushed and it infiltrated,” Williams said. “When they gave the child the vesicant, it didn’t go into the vein and it burned the back of his hand in a big circular fashion.”
Williams argued that it was the nurse’s negligence coupled with the hospital’s ineffective policies which led to the problem.
The jury returned its verdict on May 9, 2018, after two days of deliberating. Hamilton’s son was granted $1,127,280 in medical negligence damages while Hamilton received $135,477 for emotional distress.
Williams said the hospital’s highest pre-trial offer was $15,000. He said the child’s age was likely a factor in the verdict.
“It was a small child who did nothing to bring on this injury,” Williams said. “That coupled with the sheer ignorance by staff of the policies and procedures and just the simple fact that the policies and procedures implemented aren’t possible for the staff to perform.”
Williams said plaintiff’s witnesses were also a factor.
“We had a nurse who discussed the standard of care, including that you should flush before and after administration of any vesicant, and at least every two hours,” he said. “We also had a plastic surgeon who testified about the necessary costs of scar revision.”
VERDICT REPORT – MEDICAL MALPRACTICE
Amount: $1.26 million
Injuries alleged: Pain and suffering, permanent scarring, impairment, loss of enjoyment of life, medical expenses, and emotional distress
Case name: Tekayah Hamilton as parent and guardian ad litem for a minor child under the age of 18 v. Regional Medical Center
Court: Orangeburg County Circuit Court
Case No.: 2015-CP-38-1234
Judge: Edgar Dickson
Highest offer: $15,000
Attorneys for plaintiff: David Williams and Jonathan Krell of Williams & Williams in Orangeburg
Attorney for defendants: Michael Tanner of Bamberg
- Surviving husband reaches $1.28M dram shop settlement
A husband who watched as his wife was struck head-on by a drunken driver and died in an ensuing fire has reached a $1.28 million settlement with the driver’s insurers and with the bars that served the driver his drinks that night, the man’s attorneys report.
Ron Cox of Proffitt & Cox in Columbia reports that Tonya Carson was driving along I-26 near Ridgeville in October 2014 when her car was struck by a vehicle being driven by Anthony Pascucci, who was traveling in the wrong direction. Pascucci had traveled to Charleston for a wedding and went out for drinks with some friends at two bars in North Charleston. While attempting to drive back to a relative’s house, he became lost due to his level of intoxication and headed the wrong way on I-26, Cox said.
Pascucci collided with Carson’s car, which overturned. Her husband, Randall Carson, had been traveling behind her in a separate vehicle. He attempted to extricate her from her car, but it caught fire, and his wife ultimately died due to thermal burns. Pascucci also died as a result of his injuries.
After resolving claims against Pascucci’s insurers, Carson brought dram shop liability suits against Madra Rua Irish Pub and The Sparrow, the bars where Pascucci had been drinking prior to the accident.
Madra Rua carried a $1 million insurance policy, and the insurer, New York Marine and General Insurance Co., tendered the full limit. The Sparrow had previously carried liability insurance, but it had lapsed by the time the wreck took place, and so the bar was uninsured. Cox said that it contributed only $5,000 to the settlement, and that this was better strategically for his client.
The emotional distress Carson endured in witnessing his wife’s death “just added an even more tragic element to all of this,” Cox said. “With the amount of coverage available I think it would have all been paid even if that had not been part of this, but I think it added one more compelling fact to the case.”
There was no requirement at the time of the wreck that bars have liability insurance, but a statute that went into effect on July 1, 2017, now requires $1 million in liability coverage for most bars and restaurants that serve alcohol.
Toxicology tests showed that Pascucci’s blood alcohol content (BAC) was 0.25 at the time of the collision. Cox said that this BAC evidence was important to the case, and that it was backed up by Pascucci’s receipts from the two bars, although witnesses offered conflicting testimony about how many drinks Pascucci had personally consumed. The two bars are only a block away from each other, and Cox said the party had engaged in some bar-hopping.
“Our interpretation was that you could have easily come to the conclusion that Mr. Pascucci had 17 drinks over the course of the evening,” Cox said.
SETTLEMENT REPORT – DRAM SHOP LIABILITY
Amount: $1.28 million
Injuries alleged: Death, negligent infliction of emotional distress
Case name: Randall Carson, Individually and as Personal Representative of the Estate of Tonya Carson v. Southern Irish Restaurants, Inc. d/b/a Madra Rua Irish Pub, et al.
Court: Charleston County Circuit Court
Case number: 2016-CP-10-01633
Date of settlement: Jan. 10, 2018
Special damages: $1,224,878 in lost future earnings
Insurance carriers: New York Marine and General Insurance Co.
Attorney for plaintiff: Ron Cox of Proffitt & Cox in Columbia
Attorneys for defendant: Mitch Griffith of Griffith, Freeman & Liipfert in Beaufort for Madra Rua Irish Pub and Mark Koontz of Koontz Mlynarczyk in Charleston for The Sparrow
