The Top Verdicts & Settlements of 2019

Each year, South Carolina Lawyers Weekly presents our list of the top verdicts and settlements of the previous year. It’s a chance to contextualize the reports we’ve published in the last 12 months and present a picture of the year that’s been, but it’s also a chance to check in on the latest developments as these cases go through the post-trial motions—because, in most cases, a large jury verdict is not the end of the story, but merely the end of its beginning.

Our largest verdict this year is one of the largest verdicts South Carolina Lawyers Weekly has ever reported in a case stemming from a motor vehicle crash. In April an Orangeburg County jury awarded $35 million to a father and son who were seriously injured when the vehicle they were riding in was hit from behind by a tractor-trailer truck: $21 million for the son, Brandon Glover, and $14 million for the father, Willie Glover.

After Judge Edgar Dickson declined to modify the jury’s verdict in any way, the defendant trucking company, JHOC Inc., and the at-fault driver, David Hill, appealed the ruling, naturally. They also sued the company’s insurer, AXIS Surplus Insurance Co., alleging that it had squandered multiple opportunities to settle the case within the company’s $5 million insurance policy limits.

Ultimately, on Nov. 8, all of the parties came to a global resolution settling all their matters and vacating the judgment against JHOC and Hill. The terms of that settlement were confidential, the plaintiffs’ attorney, Mark Tinsley, said, but the jury’s decision nevertheless had a profound impact on the case.

“Obviously, having a verdict of that size is a significant factor in the negotiation of a mutual resolution for a case like that, in both of the cases,” Tinsley said. “It was a concern, in their case, of their insurance company, and it was a concern, in my case, of the trucking company. The significance of the verdict was what got everything settled, in my opinion.”

Tinsley said that there was a confluence of factors in the case that led to the jury returning such a whopping verdict. Indeed, JHOC’s complaint against AXIS later alleged that it should have been obvious that “the case was not a good trial candidate.”

As Dickson noted in his order declining the disturb the verdict, the Glovers presented evidence that Hill had been under the influence of drugs at the time of the wreck and had been on the road longer than trucking regulations permitted. There was also evidence that Hill had been driving at an unsafely high speed, in heavy traffic, and extremely close to the Glovers’ vehicle immediately before the accident.

“It was a solid case. There were bad facts for the trucking company, and the jury didn’t like the games that were played, and I think they reacted to it,” Tinsley said.

David Donovan

Editor in Chief

 

1. Orangeburg rear-ender leads to $21M & $14M verdicts

An Orangeburg County jury has awarded a total of $35 million to a father and son who were seriously injured when the vehicle they were riding in was hit from behind by a tractor-trailer truck.

Brandon Glover, the son, was awarded $21 million, and his father, Willie Glover, was awarded $14 million. The award to Brandon includes $17 million in punitive damages: $16 million from the company that owned the truck that hit him and its employee who was driving it, and $1 million from his father, who was driving the Glovers’ vehicle at the time of the crash.

Mark Tinsley of Gooding & Gooding in Allendale, who represented Brandon Glover, said that while Willie Glover was found to be 10 percent negligent in the crash, the elder Glover filed a cross-claim against the trucking company, JHOC Inc., and driver, David Hill. The jury awarded him $14 million, including $4 million in actual damages and $10 million in punitive damages. The actual damages will be reduced by 10 percent, Tinsley said, and used to pay the 10 percent of the actual damages that Willie owes Brandon.

The crash happened in August 2015 when the Glovers were driving westbound on I-25 near Orangeburg and a vehicle in front of them pulled over on the interstate highway, but didn’t quite make it off of the roadway. Willie stopped suddenly to avoid hitting the vehicle, at which point Hill’s truck rear-ended his. The Glovers’ vehicle then hit a tree.

Brandon suffered injuries to his right shoulder and lower back, including a microfracture in his vertebrae, which required the surgical removal of a disc and fusion of his vertebrae. He also suffered great physical pain, lost the ability to work, and was forced to pay for his own medical bills, Tinsley said.

Willie also suffered injuries to his property and to his neck and back—including cervical fusion, causing pain and requiring him to be hospitalized, he alleged in the cross-claim. In addition to medical bills, he also suffered lost wages as a result of the crash, which he said was caused by Hill’s negligence.

Tinsley said his side was able to prove Hill’s negligence in several ways–he said that a failure to drug test Hill after the accident suggested that he may have been using narcotic pain medication at the time of the crash, and the 18-wheeler’s black box showed that he had been driving for a longer period of time than he was legally allowed to without taking a break prior to the crash. He was also following too closely and driving too fast for the road conditions, Tinsley said.

“The jury believed he had failed a drug test, he was on drugs at the time of the crash, he conceded he was over his hours of service,” Tinsley said. “We were able to establish he was following too close and driving too fast.”

The jury deemed David Hill and JHOC Inc. to be 90 percent responsible for the crash in its April 26 verdict. The driver of the vehicle that had pulled to the side, who was also originally named as a defendant, was dismissed by Orangeburg County Circuit Judge Edgar Dickson after the driver established that he was not the cause of the wreck.

David and Virginia Williams of Williams & Williams in Orangeburg represented Willie Glover. David Williams said his client suffered $120,000 in past medical bills, $60,000 in lost income and that his future medical bills were estimated to cost between $120,000 and $240,000.

Robert Shannon Jr. of Wheeler Trigg O’Donnell in Greenville represented JHOC Inc. and David Hill. He disputed several of the plaintiff’s claims.

“Mr. Hill was not cited for the accident, therefore, a drug test was not required,” he said. “The officer who investigated the crash did not find he was driving too fast for conditions.”

Furthermore, Shannon said, Willie Glover admitted to traveling 50-60 mph at the time of the crash. The tree that Willie Glover hit was only 30 feet away, he said.

“Hitting the tree was the cause of the injuries, and he would have hit the tree even if Mr. Hill had not struck him,” Shannon said.

VERDICT REPORT — MOTOR VEHICLE CRASH

Amount: $21 million (Brandon Glover), $14 million (Willie Glover)

Injuries alleged: Bone bruise, microfracture in L5 vertebrae causing vertebrae to slip and annular tear, required removal of the disc and fusion of the L5-S1 vertebrae (Brandon), lower back injuries, damage to property, lost wages (Willie)

Case name: Brandon Glover v. David Hill, JHOC Inc. & Willie Glover

Court: Orangeburg County Circuit Court

Case No.: 2016-CP-38-01152

Judge: Edgar Dickson

Date of verdict: April 26, 2019

Special damages: $16 million in punitive damages from JHOC inc. and its employee David Hill and $1 million from Willie Glover (Brandon) $10 million in punitive damages from JHOC and David Hill (Willie)

Most helpful experts: David Dorrity (trucking expert)

Attorneys for plaintiff: Mark Tinsley and H. Woodrow Gooding of Gooding & Gooding in Allendale

Attorneys for defendant: Robert Shannon Jr. of Wheeler Trigg O’Donnell in Greenville for JHOC Inc. and David Hill; and Virginia Williams and David Williams of Williams & Williams Attorneys at Law in Orangeburg for Willie Glover

 

2. Owners of defective condos settle lawsuit for $11.6M

Residents of a 52-unit condominium building in Berkeley County that has been riddled with construction defects for more than a decade have confidentially settled a lawsuit against its developer and builders for $11.6 million, their attorneys report.

John Hayes and Nina Meola of the Hayes Law Firm in Charleston and Keith McCarty of Charleston said that the complex was built in 2005. Since then, owners have been plagued with multiple defects to the building, including significant water intrusion that required extensive stucco, brick, and window removal to repair it, Hayes said.

“From almost the beginning, it became apparent that there were severe problems,” he said. “Basically the building was under construction from 2005 until 2017. It just never ended.”

The condo owners initially agreed to let the builders continue to try to fix the problem.

“They ended up having to come back over and over and eventually it became apparent that they could not fix it, or weren’t going to fix it correctly,” Hayes said. “So we filed suit to get the money to have contractors of our choosing to fix the problems.”

 

The condo owners and developer and 15 contractors reached the settlement over a course of four mediations, which lasted two to three days each, Hayes said. 

“The defense was that it wasn’t me, it was the other person, or it’s not going to cost as much as you all say it’s going to cost it to fix it,” he said. “There was a lot of finger-pointing. [The owners] endured living in buildings that leaked and were under constant repair. We are grateful to provide them with some finality and hope they can go about their lives and not continuously live in fear of problems with their homes.”

Due to a confidentiality agreement, other details about the lawsuit, including the names of the defendants and their attorneys, were not available. 

SETTLEMENT REPORT – CONSTRUCTION DEFECTS

Amount: $11,608,333

Injuries alleged: Structural failing, stucco failing, water intrusion, loss of use

Case name: Withheld

Court: Berkeley County Circuit Court

Case No.: Withheld

Mediator: Bill Lyles of Charleston

Date of settlement: Aug. 22, 2019

Attorneys for plaintiff: John Hayes and Nina Meola of the Hayes Law Firm in Charleston and Keith McCarty of Charleston

Attorneys for defendants: Withheld

 

3. Machine maker pays $9.75M for role in workplace accident

A Newberry man who suffered severe burns on 90 percent of his body when scalding-hot water splashed onto him in a workplace accident has settled with the company who made the dangerous machine that allegedly caused the accident for $9.75 million, his attorney reports.

Dick Harpootlian of Columbia reports that his client, Cephus Glenn, was burned from his feet to his neck in 2016 while he was working near a machine called an ash-handler that was manufactured by AshTech Corporation. Glenn was working at the Norbord Inc. factory in Kinards, which manufactures wood-based paneling.

Glenn said that he was washing debris from the area around the ash-handler when a large mass of debris suddenly fell out of the furnace into the machine’s water tank, displacing the scalding-hot water and causing it to splash onto him.

The 160-degree water immediately caused him to suffer third-degree burns over 90 percent of his body, requiring extensive medical treatment—he was in a medically-induced coma for two months during recovery—and left him with injuries including severe pain, permanent impairment, mental anguish, emotional distress, and past and future lost earnings.

Glenn claimed that the accident could have been prevented had AshTech provided a protective cover over the tank, which would have prevented the splash from occurring. After the incident, AshTech gave Norbord Inc. instructions on how to construct such a lid, Harpootlian said.

South Carolina workers’ compensation law prohibited Glenn from suing his employer, but Harpootlian said there are no such restrictions on seeking damages against others who might have partial liability.

“In this case, there were numerous allegations of negligence on behalf of the employer, but workers’ compensation law precludes any lawsuit against them,” Harpootlian said. “Recent South Carolina case law doesn’t allow for apportionment between the employer and a negligent third party, so it’s a good route to pursue for your client’s benefit.”

Glenn’s $8 million medical bill was covered by workers’ compensation. About $1.7 million of the $9.75 million settlement will go to reimbursing the workers’ compensation fund.

AshTech admitted no fault in settlement documents and denied Glenn’s allegations. Harpootlian said it’s important to think outside the box when representing clients in workers’ compensation cases.

“The important lesson of this case is that, when you have a workplace accident, to immediately conclude workers compensation is the exclusive remedy would be foolhardy in many cases,” Harpootlian said. “A lawyer should look beyond the negligence or the alleged culpability of the employer to see if there’s anyone else who may have partial liability.”

SETTLEMENT REPORT — PRODUCT LIABILITY

Amount: $9.75 million

Injuries alleged: Third-degree burns covering 90 percent of body, requiring extensive medical treatment and resulting in permanent injuries

Case name: Cephus B. Glenn v. AshTech Corporation

Court: U.S. District Court for the District of South Carolina

Case No.: 8:17-cv-01487

Judge: Timothy Cain

Date of settlement: April 2, 2019

Attorneys for plaintiff: Dick Harpootlian, Christopher Kenney and Phillip Barber of Richard A. Harpootlian Law Office in Columbia; and Larry Marchant Jr. of Columbia

Attorneys for defendant: Amanda Bradley and Grenville Morgan Jr. of McAngus Goudelock and Courie in Greenville; Jeffrey Silverberg and George Hanna IV of Howser Newman and Besley; James Richardson Jr. of Richardson and Birdsong in Columbia; and John Engvall Jr. of Engvall and York in Houston, Texas

 

4. $9.5M settlement for family of tractor-trailer crash victim

The family of a woman killed in a tractor-trailer crash will receive $9.5 million in a confidential wrongful death settlement, the family’s attorney reports.

Cameron “Bozzie” Boggs in Greenville reports that the woman was killed immediately when a tractor-trailer entered a busy intersection during a power outage without stopping and crashed into the vehicle she was driving. The date and location of the crash were not disclosed as a result of the confidentiality agreement.

The woman is survived by a husband and three young children.

The action was mediated in October by Greenville attorney Thomas Stephenson and the sealed global settlement was approved Nov. 6.

Boggs said the defense counsel contacted him within days of the accident and offered assistance to the woman’s family. The defense also assisted with the gathering of information for the case and suggested a pre-suit mediation or settlement conference occur when the woman’s family was ready. He also said the defense counsel did not contest liability or attempt to minimize the behavior of the truck driver, and the defendant quickly shared the truck’s dash camera video with the plaintiffs.

“This wasn’t a case of what happened. It was a case of who did it happen to and what are we going to do about it?” Boggs said. “In this day and age of adversarial existence in the legal system, I was so amazed at the cooperation in a good-faith attempt to do what is right and fair under the circumstances, and it’s quite refreshing,” he said.

Boggs said Columbia consulting economist Oliver Wood and videographer Dan Beale of Beale Bagley Creations in Columbia were helpful expert witnesses. Wood provided advice on the financial effects of the woman’s loss of life, and Beale assisted with the creation of a video that combined dash camera video of the crash and images of the woman who died.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount of settlement: $9.5 million

Injuries alleged: Death

Case name: Withheld

Mediator: Thomas Stephenson of Greenville

Date of settlement: Nov. 6, 2019

Most helpful experts: Oliver Wood of Columbia (consulting economist) and Dan Beale of Beale Bagley Creations in Columbia (videographer)

Insurance carrier: Withheld

Attorney for plaintiff: Cameron “Bozzie” Boggs of the Boggs Law Firm in Greenville

Attorney for defendant: Withheld

 

5. Jury awards $7.523M in drunk driving death

A Greenville County jury has awarded $7.523 million, including $5 million in punitive damages, to the family of a man who was killed by a drunk driver.

Paul Landis and Wally Fayssoux of Fayssoux & Landis in Greenville and Elizabeth Powers Price of Greenville, who represented the victim’s family, said that it had also reached a confidential dram shop settlement with the bar which had served the driver after the estate rested its case at trial.

David Gibson was riding his motorcycle on Main Street in Simpsonville on Jan. 29, 2016, and waiting to make a left turn when he was rear-ended by Marka Jean Fuller, who was driving 60 mph in a 25 mph zone. Gibson was thrown from the motorcycle and died at the scene.

Fuller was charged with felony DUI resulting in death. She pleaded guilty to the charge in May 2017 and is still awaiting a deferred sentencing, according to the clerk of court.

Landis said that Fuller had consumed nine or 10 drinks at the nearby Full House Sportzaria in the span of a little more than three hours. The crash occurred about five minutes after Fuller left the bar.

Gibson’s family argued that Full House was negligent for continuing to serve Fuller despite her intoxication. They alleged that Full House employees provided Fuller with shots of liquor and other alcohol even though she was “slurring words, creating disturbances, having trouble ambulating, harassing other customers and taking food off of other patrons’ plates.”

Toxicologist David Eagerton testified that a toxicology report on Fuller revealed that her blood alcohol level was .168 several hours after the crash. Eagerton’s retrograde analysis determined that her peak blood alcohol level would have exceeded .21 that evening, and she would have been roughly at a .18 at the time when she left Full House. (The legal limit is .08.)

“Our position was that Full House served Ms. Fuller when they knew or should have known that she was intoxicated,” Landis said.

The jury returned its verdict on July 26. Fuller’s insurance company paid $100,000 in damages as part of her liability coverage; Landis declined to comment on the extent to which the remainder of the verdict against Fuller would be recoverable.

Landis said the estate pursued a jury trial in order to provide closure to Gibson’s family and because Fuller had, to that point, faced no consequences for her actions. He also said that, because of the weight of the evidence presented in Fuller’s case, “there wasn’t much work left to in the Full House settlement.”

Landis said the amount of the punitive damage is indicative of the mindset of juries in Greenville County when it comes to drunk driving cases.

“I think that there’s a perception that Greenville County is very conservative when it comes to injury cases. And I think the reality is that Greenville County juries appreciate considerable loss and are fully capable of awarding damages that are consistent with that loss,” Landis said. “It’s a reminder to everyone of the dangers of drunk driving and how the community views that conduct.”

Bill Young, David Rheney, and Phil Reeves of Gallivan, White & Boyd in Greenville represented Full House Sportzaria. Ryan Beasley of Greenville represented Fuller. The attorneys declined to comment on the case.

VERDICT/SETTLEMENT REPORT — WRONGFUL DEATH/DRAM SHOP

Amount: $7,523,000 verdict against drunk driver; confidential dram shop settlement

Injuries alleged: Death

Case name: Rachel Gibson, Individually and as Personal Representative of the Estate of David Herman Gibson v. Marka Jean Fuller and Full House Sportzaria LLC

Court: Greenville County Circuit Court

Case No: 2017-CP-23-06352

Judge: Alex Kinlaw

Date of verdict: July 26, 2019

Special damages: $2,523,000 in actual damages, $5,000,000 in punitive damages

Most helpful experts: David Eagerton of Buies Creek, North Carolina (toxicologist)

Attorneys for the plaintiff: Paul Landis and Wally Fayssoux of Fayssoux & Landis in Greenville and Elizabeth Powers Price of Greenville

Attorneys for the defendant: Bill Young, David Rheney, and Phil Reeves of Gallivan, White & Boyd in Greenville for Full House Sportzaria and Ryan Beasley of Greenville for Marka Jean Fuller

 

6. Woman burned in propane explosion at work settles suit for $7.5M

A woman who was burned in a propane cloud explosion at work in 2016 has confidentially settled a negligent installation and maintenance lawsuit for $7.5 million, her attorneys report.

Ryan Langley and Charles Hodge of Hodge & Langley Law Firm in Spartanburg report that the 45-year-old woman, whose name was withheld, was filling a propane tank on the forklift she was operating when the hose caught the forklift wheel and separated from the dispensing station tank, causing a propane cloud to form. The catalytic converter on the forklift ignited the cloud, even though the forklift’s ignition was off. Langley said his client had performed the task multiple times before without incident.

The dispensing station did not have a pull-away or quick disconnect that could have prevented the propane cloud from forming, Hodge and Langley said.

The woman suffered severe burns to her face, requiring treatment at the JMS Burn Center in Augusta, Georgia, and multiple surgeries to correct scarring. The $7.5 million settlement includes approximately $1.5 million in special damages to account for her medical expenses.

 

Langley and Hodge said the case was complicated by the propane company’s allegations that their client’s employer had either removed the pull-away or quick-disconnect device on the dispensing station, or altered it. An indemnity agreement between the employer and the propane company further complicated the issue of liability and implicated the exclusivity provision of workers’ compensation “and there was an open legal question about how, and to what extent, this fact could be presented to the jury,” Langley said.

The defense also raised a component of comparative negligence.

To address the liability issues, Langley and Hodge took as many as 30 depositions in multiple states over three years, many attended by their client. They also conducted focus groups and a mock trial that gave them the confidence that most of the comparative issues would be overcome if the case did go to a jury.

“The actual completed verdict from the simulated jury trial was a powerful tool at mediation,” Hodge said.

“Most of the time with worker’s comp, and there’s not an agreement between the employer and the third party for indemnification. So did that change the Machin result so the employer could be on the verdict form? And what could we say or not say about the employer’s culpability in the trial?” Langley asked, referencing the South Carolina Supreme Court’s 2017 decision in Machin v. Carus Corporation, which held that when a plaintiff seeks recovery from a person other than her employer for an injury sustained on the job, the jury cannot apportion fault against the employer by placing its name on the verdict form.

Langley said the client was resilient in the face of her injuries and that her positive attitude and composure would have made a positive impression on a jury if the suit had gone to trial.

“She’s a remarkable lady,” Langley said. “I think my partner Charlie and I cried more during the three years of litigation than she did. She’s just tough and strong and got a strong faith in the Lord. When they would scrutinize her in her past workplace incidents and all that, she never batted an eye. She was there in those depositions. She participated every time. She was never particularly blaming of others.”

The settlement, which was reached in August, came after several months of mediation led by Thomas J. Wills of Wills Massalon & Allen in Charleston. The names of the defendant and its attorneys were withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT – NEGLIGENT INSTALLATION & MAINTENANCE

Amount: $7.5 million

Injuries alleged: Severe burns

Case name: Withheld

Court: Withheld

Mediator: Thomas J. Wills of Wills Massalon & Allen in Charleston

Date of settlement: August 2019

Special damages: Approximately $1.5 million for medical expenses

Most helpful experts: Frank E. Hagen, P.E. (fire expert specializing in propane)

Attorneys for plaintiff: Charles Hodge and Ryan Langley of Hodge & Langley Law Firm in Spartanburg

Attorneys for defendant: Withheld

 

7. Soddy crash results in $6.05M settlement

A man who suffered a severe brain injury after a pallet of grass sod fell off a trailer and caused a multi-car crash has confidentially settled a lawsuit for $6.05 million, his attorney reports.

In 2014, the 68-year-old man was driving on Interstate 26 near Orangeburg when a swaying flatbed trailer carrying a 4,000-pound load of sod dropped a pallet of the grass onto the highway, said William Applegate of Yarborough Applegate in Charleston, who represented the plaintiff.

After a lane was closed off and traffic slowed, the plaintiff was rear-ended by a car that was traveling at 80 mph. He suffered traumatic brain injuries including a diffuse axonal injury, subarachnoid hemorrhage, shearing injury, encephalopathy and extended amnesia, and orthopedic injuries.

A sod dealer packaged and loaded the sod onto the flatbed trailer, and the driver of the pickup failed to take any additional measures to tie down the sod on his trailer, Applegate said. The plaintiff alleged that the driver who rear-ended him was negligent, the sod hauler was negligent and not properly trained by his employer, and the sod loader was negligent in its methods of wrapping and loading the sod. (The names of all of the parties were withheld pursuant to a confidentiality agreement.)

The plaintiff filed a lawsuit against both drivers and the company that loaded the sod. Both the hauler and the loader moved for summary judgment. A trial court held that the loader of the sod had neither a statutory duty nor a common law duty to the public to the public, and the South Carolina Court of Appeals upheld the trial court’s decision.

“While we were happy to be able to get some results for the client, we did not feel it was a full measure of damages,” Applegate said.

“Traumatic brain injury is a disease process that causes lifelong problems. While invisible, when an individual suffers one and is required to relearn everything from swallowing to talking over a period of weeks or months, the effects are astounding. Beyond the memory loss and general reduction of brain function, people with such traumatic brain injuries experience personality changes that are very challenging for them, their families and friends. These are some of the things that have stayed with him. The brain can only regenerate so much, so the impacts are pretty significant.”

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $6.05 million

Injuries: Traumatic brain injuries including a diffuse axonal injury, subarachnoid hemorrhage, shearing injury, encephalopathy and extended amnesia, and orthopedic injuries

Case name: Confidential

Case number: Withheld

Court: Orangeburg County Circuit Court

Date of settlement: June 28, 2019

Most helpful experts: Dr. Gregory O’Shanick in North Chesterfield, Virginia (neurology), and Mike Sutton in Cary, North Carolina (accident reconstruction)

Insurance carriers: United Services Automobile Association, Philadelphia Indemnity Insurance Company, and Government Employees Insurance Co.

Attorney for the plaintiff: William E. Applegate IV of Yarborough Applegate in Charleston

Attorney for defendants: Withheld

 

8. Family of boy who drowned in apartment pool settles lawsuit for $6M

The parents of a 3-year-old boy who drowned after he entered an apartment complex pool through an unlocked gate has settled a lawsuit against the complex for $6 million, the family’s attorneys report.

On May 18, 2018, the toddler was playing on a tennis court with his two young cousins at the apartment complex in Hanahan in Berkeley County while his aunt and grandmother were watching them, said David Yarborough of Yarborough Applegate of Charleston, who represented the boy’s family with Christopher Bryant of the same firm and Christopher McCool of Joye Law Firm in Charleston, in negotiating the confidential settlement.

The children wandered out of view, and moments later, the boy’s cousins ran up to a man who was grilling out and told him their cousin fell into the pool and needed help. The man jumped over the wall in front of the pool, pulled the boy out of the water and began performing CPR. A police officer arrived first on the scene, followed by paramedics. They tried to revive the boy, but it was too late, Yarborough said.

“He lived on life support for a week,” he said. “He never regained consciousness. The mom and dad loved the little boy very much, and were very involved in his life. They were at his side at the hospital until the moment they had to discontinue life support. He was ultimately able to donate all of his organs to help other children. It was just an awful set of circumstances”

The pool was surrounded by a brick wall and with its ornamental open spaces between the bricks, it was more akin to a climbing wall than a barrier, Yarborough said. Maintenance personnel used a pump house gate to access the pool. It was usually padlocked; there was conflicting testimony on whether the gate was locked when the child drowned.

However, there was no dispute that it wasn’t equipped with a self-closing or self-latching mechanism, which South Carolina law requires since the pool is considered public.

There should have been a commercial-grade cover over the pool since it had been closed for more than six months prior to the incident, Yarborough said. The complex also did not have a Certified Pool Operator at the time of the drowning.

The owners of the complex claimed that children climbed over the fence to enter the pool area and that the fence and gates complied with state regulations and industry standards, Yarborough said.

A maintenance employee and property manager said they opened the gate the evening the boy drowned only to let the rescue personnel into the pool area to try to revive the boy and that it had been locked at all times before the incident.

“The crazy thing was the lies that the apartment complex told,” Yarborough said. “They orchestrated testimony that they had unlocked the gate after the police have arrived, and the first policeman on the scene said he went through an open gate, and didn’t see anyone else around that could have opened it.”

The defense also claimed that the grandmother and aunt were inside an apartment at the time of the drowning and never should have left the 3-year-old out of sight with his 4-year-old cousin. It was later determined that the 4-year-old likely pushed his younger cousin into the pool, Yarborough said.

Police found that the aunt and grandmother were not at fault.

“There was a great amount of grief and everyone involved felt guilty,” Yarborough said of the family. “But the fact of the matter is, had the pool been guarded like it was required to be by law, and had they followed safety regulations, this never would have happened.”

The family is very close, the attorneys said. The boy’s mother was at work and she, her mother and her sister looked after the children while the others were at work.

“No one should have to experience what this family has experienced and will continue to experience,” McCool said. “We are talking about parents grieving the passing of their absolutely wonderful child. There is no adequate compensation for such a situation. There simply isn’t. But from a legal standpoint, we were absolutely committed to finding the truth and giving our clients well researched and thought-out advice. This was a case where the defendant took no responsibility, blamed everyone else under the sun, and offered $100,000 at mediation.”

SETTLEMENT REPORT – PREMISES LIABILITY

Injuries alleged: Death due to drowning

Case name: Confidential

Court: U.S. District Court for the District of South Carolina

Date of settlement: July 15, 2019

Highest offer: $100,000

Attorney for plaintiff: David Yarborough and Christopher Bryant of Yarborough Applegate Law Firm in Charleston and Christopher McCool of Joye Law Firm in Charleston

Attorneys for defendant: Withheld

 

9. Mesothelioma victim wins $5.13M jury verdict

The widow of a man who died of mesothelioma in 2015 has won a $5.13 million verdict in Anderson County, his attorney reported.

Tommy Glenn was an instrument technician at five separate Duke Energy facilities beginning in the 1970s and through the 2000s, where he worked on and around various valves, pumps, and other industrial equipment, said attorney Theile McVey of Kassel McVey in Columbia.

Two of the defendants, Fisher Controls and Crosby Valves, are valve manufacturers and sold valves with gaskets and packing that contained asbestos, McVey said. When the valves had to be serviced in the plants, the gaskets and packing had to be removed and replaced, she said.

The gaskets typically got stuck to rims and had to be taken off with either a scraper, wire brush or a power grinder. The lawsuit claimed that exposure to these products containing asbestos was a substantial factor in causing Glenn’s mesothelioma. 

“Mesothelioma is a fatal cancer, almost exclusively caused by exposure to asbestos,” McVey said.

Since the gaskets are made up of about 85 percent asbestos, the removal of the gaskets caused a substantial health hazard to Glenn and to those who are working around him, McVey said. This was “known and foreseeable” to the valve manufacturers like Fisher and Crosby long before Glenn ever worked with their products, she said.

The jury found that Fisher was negligent and breached a warranty. The jury found that Crosby was not liable. The other defendant, Carboline Company made paint and coating for use in the pants which contained asbestos, McVey said. The jury also found Carboline not liable.

Judge Jean Toal, the former chief justice of the South Carolina Supreme Court, presided over the trial.

Glenn was diagnosed with mesothelioma in December of 2014 and died two months later before he could give his deposition. Two co-workers testified on his behalf, saying that he worked around the Fisher valves on a regular basis over decades. One co-worker testified that Glenn spent months over the course of a year grinding and drilling off this coating, causing exposure.

The defendants argued that the chrysotile asbestos in their products was not the dangerous type of asbestos, but instead was safe. But it also argued that Duke should have warned its employers about the dangers of asbestos.

“We are incredibly thankful to the jury for their hard work,” McVey said.

Jessica Dean, Jonathan Holder and Ben Adams of Dean Omar Branham + Shirley in Dallas, Texas, also represented the widow.

Attorneys for the defendants could not be reached for comment on the verdict.

VERDICT REPORT — ASBESTOS LITIGATION

Amount: $5.13 million

Injuries alleged: Death

Case name: Rita Joyce Glenn, Individually and as Personal Representative of the Estate of Thomas Harold Glenn v. Fisher Controls, Crosby Valves and Carboline Company

Court: Anderson County Circuit Court

Case No.: 2015-CP-04-01607

Judge: Jean Toal

Date of verdict: Jan. 22, 2019

Attorneys for plaintiff: Theile McVey and Jessica Dean of Kassel McVey in Columbia and Jonathan Holder and Ben Adams of Dean Omar Branham + Shirley in Dallas, Texas

Attorneys for defendants: Tim Bouch and Yancey McLeod of Bouch McLeod in Charleston for Fisher Controls and Crosby Valves; Robert Meriwether and Jase Glenn of Nelson and Mullins for Carboline

 

10. Feds to pay family $4.41M for easement for base

A Beaufort family will receive $4.41 million as compensation for a restrictive easement that the U.S. government placed on a large tract of land near Marine Corps Air Station Beaufort, the family’s attorneys report.

Paul Dominick and Alexandra Austin of Nexsen Pruet in Charleston represented the Trask family, which had since 1995 owned 269 acres in Beaufort County near the air base and in the flight pattern of U.S. Marine Corps fighter jets based at the station (the family had once owned the property on which the station was built). In 2016, the government filed an action to impose a restrictive easement over the land, restricting development on it or any use that might interfere with the jets. 

The land included two parcels, one designated for industrial use and another for residential, that were both placed under the easement. The government valued the damage to the property at $937,000, but the family claimed that the restrictive easements devalued the property, which had been given to them by the family patriarch in his will as investment property, by much more than that.

“This was their 401(k). Their father had left them this property. They’ve got a very large family. And the idea was that eventually they would sell it off for the benefit of the heirs of Mr. Trask’s estate,” Dominick said.

The appraiser hired by the family told Dominick it was one of the most restrictive easements he’d ever seen. The family argued that the restrictions were so severe that they amounted to a total taking of their property rights.

A three-judge commission empaneled to determine the appropriate amount of just compensation for the land gave its recommendation to U.S. District Judge Robert Gergel for his consideration. Gergel heard three days of arguments before reaching his decision in April 2019, adopting the commission’s report in part and declining in part.

Gergel awarded the family $4,441,410 for the property. The 179-acre industrial tract was valued at $3,043,000, and a 90-acre residential tract was valued at $1,398,410 (the restrictions limited residential development). Gergel agreed with the family’s appraiser about the pre-taking value of the property, but sides with the government’s appraiser about the value post-taking.

“Judge Gergel’s award of over $4 million to the property owners in this case was a victory for individual property rights. Government entities may have the right to take private property for public use, but that might not overcome the legal obligation to fairly compensate the landowners,” Dominick said.

The family also sought $687,602 in attorney fees, but Gergel ruled they were entitled to only $71,150. Dominick said he anticipates both sides will appeal. 

The attorney for the United States Department of Justice, Daniel Kastner, declined to comment.

VERDICT REPORT – EMINENT DOMAIN

Amount: $4,441,410

Injuries alleged: Reduction in value of land due to a restrictive easement

Case name: United States of America v. 269 Acres, More or Less, Located in Beaufort County, State of South Carolina, et al.

Court: U.S. District Court for the District of South Carolina

Case No.: 9:16-cv-02550

Judge: Richard Gergel

Date of verdict: April 2, 2019

Highest offer: $1,091,000

Most helpful experts: Thomas Hartnett of Hartnett Realty Co. in Isle of Palms (real estate appraiser)    

Attorney for plaintiff: Daniel Kastner for the U.S. Department of Justice

Attorneys for defendants: Paul Dominick and Alexandra Austin of Nexsen Pruet in Charleston

 

11. $4M settlement for catastrophic injuries from motorcycle crash

A man who suffered catastrophic injuries when he was hit by a car while riding his motorcycle in Lancaster County has negotiated a $4 million pre-suit confidential settlement, the victim’s attorney reports.

Mark Jetton of Jetton & Meredith in Charlotte reports that his client, a 29-year-old man, was riding his motorcycle at about 50 mph in May 2017 when the car’s driver failed to yield the right-of-way and accelerated through a stop sign. The client was ejected from his motorcycle and thrown to the pavement and had to be airlifted to a trauma center.

Among his many injuries requiring surgery, the client suffered a broken leg, broken and dislocated hip, broken collarbone, broken ribs, broken vertebrae, internal injuries, and an elbow injury. He was hospitalized in intensive care and since being discharged has required continuous therapy, medication, and care.

Because of his injuries, the client was not able to return to his job, which was physically demanding, or to his previously physically active lifestyle.

Among the expert witnesses, Penny Cates, a life care planner in Archdale, North Carolina evaluated the amount of medical treatment and care the plaintiff would require for the rest of his life as a result of his injuries and its projected cost. Economist J.C. Poindexter conducted a lost wage evaluation to determine a fair reimbursement for a man who would lose an estimated 35 years of income.

Richard Hinson of Florence mediated the settlement, which the parties agreed to on May 31. Many details about the case, including the identities of the parties and of the defense’s counsel were withheld pursuant to a confidentiality agreement.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $4,000,000

Injuries alleged: Broken leg, broken and dislocated hip, broken collarbone, broken ribs, and broken vertebrae

Case name: Case settled before a suit was filed

Venue: Lancaster County

Mediator: Richard Hinson of Florence 

Date of settlement: May 31, 2019

Most helpful experts: Penny Cates of Archdale, North Carolina (life care planner) and J.C. Poindexter of Cape Coral, Florida (economist)

Insurance carrier: Withheld

Attorney for plaintiff: Mark Jetton of Jetton & Meredith in Charlotte 

Attorneys for defendant: Withheld

 

12. Widow of deputy hit by boat while training settles suit for $3.95M

The widow of an Anderson County sheriff’s deputy who was killed in a boat training exercise with the U.S. Army Corps of Engineers has settled a wrongful death lawsuit against the federal government for $3.95 million, her attorneys report.

Kenneth Berger in Columbia and Shawn Deery and Randall Hood of McGowan, Hood & Felder in Rock Hill report that the deputy, Devin Hodges, was training on Lake Hartwell with the Corps of Engineers in June 2017. Hodges was in a sheriff’s office boat with another deputy and a Corps of Engineers instructor who was attempting an emergency stop. The exercise involved driving the boat at a high rate of speed, then steering it with a hard turn to the left and pulling back the boat’s throttle within 30 feet of a buoy.

 

The instructor attempted the exercise between half and full throttle, and all three men were thrown from the boat. The boat began a “circle of death” and ran over Hodges, who died of drowning with blunt force trauma as a contributor, Berger said.

His widow, Krystal Hodges, filed a wrongful death lawsuit against the U.S. government. She contended that the day before the accident, Hodges and the instructor had discussed the importance of a lanyard that connects the driver of the boat to a kill switch. If the driver is thrown from the boat, lanyard will automatically flip the switch and shut off the boat’s engine, but the instructor didn’t have the lanyard attached to him when he conducted the fatal training exercise.

The Hodges were “the All-American family,” Berger said. They had two children together and Krystal Hodges had two sons of her own, but “for all intents and purposes, he was their daddy,” Berger said.

“Even though they didn’t qualify as statutory beneficiaries under the Wrongful Death Act in South Carolina, we were able to increase the damages on the claim based on how the harm to Krystal was further magnified by having to explain to the boys that the man they called their dad, the man who raised them, had his life was taken,” Berger said.

Berger said that the actions of the Department of Justice’s attorney, Orla Brady, were crucial in reaching the settlement.

“One of the reasons we were able to reach a resolution was because of the compassion and professionalism of Ms. Brady,” Berger said. “She showed genuine care and concern for Krystal and that went a long way toward Krystal wanting to reach a settlement.”

The instructor was originally charged with reckless homicide in state court, but the case was moved to federal court and the charges were dismissed.

“The only real justice available for the family was through the civil case,” Berger said.

The U.S. Department of Justice did not return a request for comment.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $3.95 million

Injuries alleged: Death

Case name: Krystal Hodges, individually and as the appointed personal representative of the Estate of Devin Hodges v. the United States of America

Court: U.S. District Court for the District of South Carolina

Case No.: 8:18-cv-2165

Judge: Timothy Cain

Date of settlement: Oct. 23, 2019

Most helpful experts: Bob Swint of ATA Associates in Houston, Texas (accident reconstruction) and Charles Clark of Applied Marine Technology in Mandeville, Louisiana (boating safety)

Attorney for plaintiff: Kenneth Berger in Columbia and Shawn Deery and Randall Hood of McGowan, Hood & Felder in Rock Hill

Attorney for defendant: Orla Brady of the U.S. Department of Justice in Washington, D.C.

 

13. Charleston jury awards $3.75M for half acre

A Charleston County Circuit Court jury has awarded a realty company $3.75 million in compensation for a 0.55-acre plot of land taken by the South Carolina Department of Commerce to build a railway to support a new port terminal.

The award is more than double the $1.8 million that the Commerce Department’s Division of Public Railways offered to Gateway Properties of Greater Charleston as compensation for the taking, according to a consent order for payment.

The parties disagreed over how best to assess the value of the property. Gateway offered the expert testimony of Thomas Hartnett, a certified general appraiser and realtor who offered an alternative to the state’s estimation of the value of the property. The state filed a motion seeking to exclude Hartnett’s testimony because he employed the “cost approach” to valuing the property instead of using the more common “sales comparison” approach employed by its experts.

Gateway responded that the cost approach, which is often used in cases where there is a paucity of comparable sales to look at, was the most relevant method of valuing the property, because there were no other sales of similar properties in the area where the building sits at 1799 Meeting Street Road.

The company argued in opposing the motion to exclude that Hartnett’s use of the cost approach was superior because it took into account the cost of the “extensive electronic and technological systems” in the building. The court ultimately ruled to allow Hartnett’s testimony, and the jury returned its verdict on March 28.

Karen Manning of the South Carolina Department of Commerce, Keith Babcock and David Paavola of Lewis Babcock in Columbia, and Derek Dean of Simons & Dean in Charleston represented the state. The attorneys did not respond to requests for comment before press time. Trenholm Walker and John Linton Jr. of Walker Gressette Freeman & Linton in Charleston represented Gateway Properties. They declined to comment on the verdict.

VERDICT REPORT — EMINENT DOMAIN

Amount: $3.75 million

Injuries alleged: Taking of 0.55 acres of land and an office building

Case name: South Carolina Department of Commerce, Division of Public Railways v. Gateway Properties of Greater Charleston, LLC

Court: Charleston County Circuit Court

Case No.: 2017-CP-10-05382

Judge: Alex Kinlaw

Date of verdict: March 28, 2019

Deposit amount: $1.8 million

Most helpful experts: Thomas Hartnett of Mount Pleasant (appraiser) and Steve Morey of Design Build Corporation in Charleston (cost estimate)

Attorneys for defendant: G. Trenholm Walker and John Linton Jr. of Walker Gressette Freeman & Linton in Charleston

Attorneys for plaintiff: Karen Manning of the South Carolina Department of Commerce, Keith Babcock and David Paavola of Lewis Babcock in Columbia, and Derek Dean of Simons & Dean in Charleston

 

14. Jury awards $3.5M over death of discharged patient

The family of a man who drowned after walking into the ocean during a hurricane shortly after he was discharged from Grand Strand Regional Medical Center has won a $3.5 million medical malpractice verdict against the employer of the physicians who discharged him from the hospital.

Brink Hinson of Finkel Law Firm in Columbia, who represented the family, said that the medical staff who treated Matthew Scheer failed to contact his father, as they should have done when Scheer was discharged, because they didn’t properly understand the rules imposed by the Health Insurance Portability and Accountability Act, which regulates the safeguarding of private medical information.

Hinson said that David Scheer took his son to GSMC in October 2015 because his son was suffering from an acute psychotic episode. The attending physician ordered a psychiatric consultation, but none was ever performed.

A few hours later, David left the hospital temporarily, after informing hospital staff that he was his son’s emergency contact. While he was gone, Matthew had an outburst in which he yelled at and acted aggressively toward the hospital’s staff. A physician discharged Matthew a few minutes later, but never informed his father. The doctor later testified that she believed HIPAA privacy regulations didn’t allow her to do so.

About 30 minutes later Matthew drowned himself in the Atlantic Ocean, in the early morning hours during a heavy storm caused by Hurricane Joaquin. The family brought survival and wrongful death actions against GSMC, the two attending physicians, and their practice group, Southern Myrtle Inpatient Services. The family alleged that SMIS had failed to adequately train its employees about what information could or could not be disclosed under HIPAA.

“This case was about a doctor not being trained that she had the ability, and the obligation to pick up the phone and speak to a close family member who was in a position to lessen Matthew’s danger to himself and others,” Hinson said.

The family reached a $600,000 settlement with GSMC in August 2018, while SMIS rejected a $1 million offer of judgment. After a five-day trial and nearly nine hours of deliberation, the jury returned its verdict against SMIS on May 24. The jury found that SMIS had acted negligently, and that its negligence had proximately caused Scheer’s death, but it did not hold either of the physicians legally responsible.

The jury awarded $3.5 million in actual damages and $250 in punitive damages.

Hinson said after the decision he spoke to a few members of the jury, who told him their concern was the doctors were not properly trained about what they can and cannot disclose under HIPAA.

“You can’t scare a physician into thinking that there are never times when you can and should divulge patient information for the safety of the patient or public safety,” Hinson said. “And that, essentially, was the crux of the case. You have to understand that while privacy and patient health care information, generally speaking, needs to be kept confidential, there are absolutely exceptions within the law for common sense and for patient safety. HIPAA shouldn’t be a barrier to patient safety.

“You can’t leave out the crucial part about permissible disclosures. You can’t only talk about the don’t without talking about the do’s. I think HIPAA has been misconstrued into this thing that is all about privacy and that’s not what it is. It’s actually about the portability of healthcare information.”

William Padget, also of Finkel Law Firm, also represented the Scheer family.

Jack Gresh and Lauren Spears of Hall Booth Smith in Charleston represented SMIS. Gresh declined comment, saying that post-trial motions have not been decided.

VERDICT REPORT — MEDICAL MALPRACTICE

Amount: $3,500,250

Injuries alleged: Death

Case name: David L. Scheer, et. al. v. Southern Myrtle Inpatient Services LLC, et. al.

Court: Horry County Circuit Court

Case No.: 2017-CP-26-01571

Judge: John C. Hayes III

Date of verdict: May 24, 2019

Demand: $1 million (offer of judgment)

Special damages: $3.5 million in actual damages, $250 in punitive damages

Attorneys for plaintiff: Brink Hinson and William Padget of Finkel Law Firm in Columbia

Attorneys for defendant: Jack Gresh and Lauren Spears of Hall Booth Smith in Charleston

 

15. Dram shop suit against Columbia tavern settled for $3M

A man who suffered serious injuries after a drunk driver hit him head-on has settled a lawsuit against the driver and the bar that served him for $3 million, his attorney reports.

Kenneth Berger of Columbia reports that his client, Travis Butler, was driving to his job at the Amazon Fulfillment Center in West Columbia on Jan. 10, 2016, when a vehicle driven by Logan Frazier crossed the center line and hit Butler’s car.

Butler suffered seven broken bones, Berger said, as well as a liver laceration, dislocated toe and torn ligaments in his left knee. He had two rods placed in his right leg, one rod placed in his left leg, and a plate put in his right arm. In all, he underwent seven surgeries and was in the hospital for more than two weeks.

Frazier had been drinking at the Hickory Tavern in Columbia that afternoon, Berger said, and his blood alcohol content was .20, two-and-a-half times the legal limit for driving.

“He was hammered,” Berger said.

Berger said that Hickory Tavern bartenders served Frazier a total of 82 ounces of Red Bull, beer and liquor. Frazier started drinking in the downstairs bar at the tavern, closed out his tab, and started a new one upstairs, Berger said.

“It was one of those situations where the left hand didn’t know what the right hand was doing,” Berger said about the tavern’s servers.

The Hickory Tavern argued that Butler has made a great recovery, his future medical needs are limited, and he will be able to move forward with his life, Berger said. But Butler, who was 19 at the time of the crash, had his body “crushed,” Berger said, and now, at the age of 22, he is already developing arthritis.

“The bartenders were not reprimanded by the bar,” Berger said. “Business as usual went on at the bar, while Travis’ life was anything but business as usual.”

Berger said that while the bar had good policies in place regarding serving alcohol, the servers did not follow them.

“You’ve got to be held accountable,” Berger said. “If you are not held accountable, it will happen again and again and again.”

Between debit card receipts, Frazier’s own deposition testimony, and other witness testimony, Berger said it was clear Hickory Tavern violated the law against over-serving.

“It was really a question of damages,” he said. “We spent more than $100,000 on medical animations, other demonstrative evidence, and experts. We were able to tell a compelling human story, which is at the heart of every great legal case, because we spent countless hours getting to know Travis, his family, his friends, and even his former soccer coach.”

Berger said the emphasis was not only on what the past three years had been like for his client, but also the challenges and medical needs his injuries were likely to create over the next 50-plus years.

“This case was never about medical bills or lost earnings,” Berger said. “It was about the devastating impact of over-serving and drunk driving on an innocent teenager.”

Frazier pleaded guilty in court to DUI resulting in great bodily injury, Berger said. He was placed on probation.

Becky Laffitte of Robinson, Gray, Stepp & Laffitte represented Hickory Tavern. Austin Hood of Clawson and Staubes in Columbia represented Frazier.

“Hickory Tavern’s decision to resolve this complex case as expeditiously as possible benefits everyone involved, and the company wishes Mr. Butler all the best in the years ahead,” Laffitte said.

Hood could not be reached for comment.

SETTLEMENT REPORT — DRAM SHOP

Amount: $3 million

Injuries alleged: Seven broken bones, liver laceration, torn knee ligaments, dislocated toe

Case name: Travis Butler vs. T&B Management, LLC, d/b/a Hickory Tavern and Logan Frazier

Court: Richland County Circuit Court

Case No.: 2017-CP-40-3240

Date of settlement: Jan. 24, 2019

Special damages: $478,000

Attorney for plaintiff: Kenneth Berger of Columbia

Attorneys for defendants: Becky Laffitte of Robinson, Gray Stepp & Laffitte in Columbia (tavern owner) and Austin Hood of Clawson and Staubes in Columbia (at-fault driver)

 

16. Pregnant mother’s family settles with ER doc for $2.6M

The family of a pregnant mother of two who died at the age of 30 has settled a medical malpractice claim against an emergency room physician for $2.6 million, the family’s attorney reports.

John Kassel of Kassel McVey in Columbia said that the physician, whose name was withheld due to a confidentiality agreement, failed to diagnose a pulmonary embolism—which occurs when a blood clot gets lodged in an artery in the lung, blocking the flow of blood and oxygen to the rest of the lung—in the emergency room, leading to the mother’s death. The woman was 10 weeks pregnant, and her unborn child also died as a result of the misdiagnosis, he said.

Kassel’s client, whose name was also withheld, brought his wife to the emergency room in 2015 because she was experiencing severe chest pain every time she breathed in or out. The physician took a medical history, performed an examination, and ordered a chest x-ray. The woman’s own mother had died of a pulmonary embolism, Kassel said.

Upon examination, the woman’s heart rate and respiratory rates were deemed to be high (both are potential symptoms of an embolism), but an x-ray looked normal. During a physical exam, the physician noted an area on the left side of the woman’s chest which was painful when touched, and an ultrasound was performed on her heart. Kassel said that such tests can’t “see” an embolism, but can spot indirect evidence of one, such as a build-up of pressure caused by a massive blood clot. Experts on both sides of the litigation agreed that the most definitive test to rule out an embolism is a CT angiogram. 

Despite the woman’s showing many signs and symptoms and risk factors for an embolism, the physician diagnosed her with “chest wall tenderness” and sent her home. Nine days later, she collapsed and died. An autopsy showed that a massive embolism was the cause of death.

Kassel said the physician made several mistakes, first by settling on a diagnosis of chest wall tenderness despite no history of trauma to the chest and no explanation for any cause for the tenderness, and then by erroneously concluding that pleuritic chest pain (inflammation of the membranes that surround the lungs) was not associated with an embolism, despite basic fundamental emergency medicine textbooks stating the contrary.

Kassel said the physician testified that the woman’s family history and pregnancy weren’t risk factors, which was refuted by the plaintiff’s experts and medical textbooks. He also said that tenderness upon touching usually points to a muscular-skeletal problem. Kassel said it was unreasonable to use this to rule out an embolism.

“In fact, we brought medical literature warning physicians not to rely on palpation [touching or probing during a medical examination] when trying to assess the probability of a [pulmonary embolism],” Kassel said.

The physician also said he believed the likelihood of an embolism was low because of the normal ultrasound results. His own writings demonstrated that he understood that ultrasound cannot rule out a small embolism, Kassel said.

Experts for both sides said it is likely the wife had a small embolism, but because she was discharged without treatment, additional blood clots traveled to her lungs, blocked her blood flow, and caused her death.

Kassel said the physician overstated the risk a CT angiogram posed to a pregnant woman and her fetus. He testified that the risk of exposure to radiation would not have been appropriate given the low probability of an embolism. But the plaintiffs brought evidence from the American College of Radiology which said there is no risk to a baby from a chest CT. The defendant’s own expert agreed that the risk to the baby from a chest CT was “negligible.”

Kassel said two admissions by defense experts were critical to the settlement. First, the defendant’s own expert gave the opinion that the woman had an embolism on the day she arrived in the ER. But the defendant himself denied she had one, and said she developed the issue after leaving the hospital. Second, the defense expert testified the radiation risk was minor, and so the physician’s hesitancy to use the test was a mistake.

“The condition was present and would have been found if the ER physician had ordered the test,” Kassel said. “At the end of the day, the ER physician had to choose between a benign diagnosis of chest wall tenderness or the potentially fatal condition of a [pulmonary embolism]. He chose the former, without ruling out the latter. He gambled when he didn’t have to.”

The defense attorneys’ names were withheld as part of the confidentiality agreement.

SETTLEMENT REPORT—MEDICAL MALPRACTICE

Amount: $2.6 million

Injuries alleged: Deaths of patient and her unborn child

Case name: Withheld

Court: Withheld

Date of settlement: March 2019

Attorneys for plaintiff: John Kassel and Theile McVey of Kassel McVey in Columbia

Attorney for defendant: Withheld

 

17. Man hurt by makeshift stairs settles suit for $2.35M

A drywall worker who suffered severe injuries after a set of “pathetically built” makeshift stairs collapsed while he was working at an Edisto Island home has confidentially settled a lawsuit against the subcontractor who built the stairs, the general contractor, and the homeowner for $2.35 million, his attorneys report.

David Yarborough and Liam Duffy of Yarborough Applegate Law Firm in Charleston and Kevin Smith of Hoffman Law Firm in North Charleston report that their client, whose name was withheld pursuant to a confidentiality agreement, was carrying construction materials up the stairs in 2016 when they collapsed and he fell 15 feet to the concrete below.

The worker sustained a spinal cord injury with persistent bowel, bladder, and sexual dysfunction, right-lower extremity weakness with knee instability, and a closed head injury (a type of traumatic brain injury) with post-concussive disorder. He now suffers from nightmares, which cause him to scream and moan—none of which occurred prior to the fall.

“Prior to his injuries, he was of great help to his family around their house, by cooking, cleaning, repairing broken items, doing yard work, and even remodeling the home,” Yarborough said. “He used to love playing soccer with his kids and family members. All of that has changed as a result of this incident. He is no longer able to assist around the house the way he once could, and he and his wife have not been intimate since his fall.”

The worker contended that the subcontractor who built the stairs was liable because the stairs were not compliant with the building code, lacked the required bolts or bracing or ledgers, and were unable to support a reasonable and expected load during the course of construction. Photos taken after the collapse show that the bottom, weight-bearing, portion of the stairs was attached to the adjacent landing area with no more than a few small nails, Yarborough said.

“The owners of the subcontracting framing company were both unlikable and unbelievable,” Yarborough said. “In our demand, we stated ‘They will have no credibility with a jury and, frankly, anyone left in the case who has any part of hiring and allowing them to work on the job site will face certain liability as well. They are admitted habitual drunks, drug users and [the subcontractor] is an admitted liar.”

The insurance carrier for the subcontractor ultimately tendered its $500,000 policy limits.

The worker argued that the general contractor was also negligent in the selection and supervision of the subcontractor and failure to inspect the premises. The GC moved for summary judgment, raising the statutory employer defense, which would have required the claims to be resolved via workers’ compensation.

But the worker argued that because the GC, who had no employees, never physically performed any construction services, it was more akin to a mere coordinator of other services and trades, and therefore the worker’s drywall installation work was not actually “part of” the work that the GC would normally do. After the GC’s summary judgment motion was denied, its insurance carrier offered $350,000 to settle the claim.

The worker also contended that the property owner owed him the highest duty of care under the law to take safety precautions and discover and eliminate risks. He claimed that the homeowner should have inspected the stairs and taken the necessary steps to remove or warn of any dangers, and because he failed to do so, he was liable for the injuries resulting from the breach of his duty.

“This was not a typical jobsite,” Yarborough said. “The homeowner was not an ordinary, know-nothing homeowner when it comes to familiarity with the construction process. In fact, he was an experienced electrical contractor who was on the jobsite often, even self-performing a large portion of the work through his own company and employees.”

The property owner’s insurer paid $1.5 million, leading to the total settlement of $2.35 million, which was finalized on Nov. 1.

The subcontractor and GC claimed the stairs were properly constructed and that they had been in use for over a month prior to their collapse, and argued that the building inspector for the Town of Edisto had inspected the job site and it passed inspection prior to the collapse, Yarborough said.

The identities of the defendants and their counsel were also withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT – CONSTRUCTION ACCIDENT

Amount: $2,350,000

Injuries alleged: Spinal cord injury; persistent bowel, bladder, and sexual dysfunction; right-lower extremity weakness with knee instability; and closed head injury with post-concussive disorder

Case name: Withheld

Court: Colleton County Circuit Court

Date of settlement: Nov. 1, 2019

Most helpful experts: Alan Campbell of Applied Building Sciences in Charleston (structural engineering)

Attorneys for plaintiffs: David Yarborough and Liam Duffy of Yarborough Applegate Law firm in Charleston and Kevin Smith of Hoffman Law Firm in North Charleston

Attorneys for defendants: Withheld

 

18. Motorcyclist injured in crash reaches $2.2M settlement

A motorcycle rider who suffered catastrophic injuries in a crash on the way home from work has reached a $2.2 million confidential pre-suit settlement in Greenville County, his attorney reports.

Eric Philpot of Philpot Law Firm in Greenville said the 50-year-old man, who was on his way home from work as a steel fabricator in August 2018, was riding his motorcycle when a driver failed to yield at a stop sign and crashed into him.

The client suffered injuries to his head and had a broken shoulder, collarbone, ribs, foot, leg, and back. He also dislocated his knee and tore his ACL. The injuries required four surgeries.  The broken leg was close enough to his pelvis to require a second surgery to repair inserted rods. Because of the physical nature of his job, the client was out of work for more than a year and was eventually let go.

The settlement, agreed to on Oct. 3, includes $331,707 in medical expenses and $48,141 in lost wages. Philpot said that, fortunately for his client, the defendant had an umbrella policy that included sufficient coverage to provide the client with “some pretty good compensation.”

Philpot said that consistently updating insurance adjusters of the client’s condition helped get the case resolved promptly and fairly. Throughout the client’s treatment course, Philpot was in constant communication with the adjusters as to the nature and extent of the damages involved and the impact the crash had on the client and his family.

“I just didn’t plop this on them and demand a huge sum,” he said. “I kept prodding all along that we thought this was going to max out the limits and they were kind of ready to talk serious numbers when the time came … It was our pleasure to fight for this family to ensure they got what they deserved.”

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2.2 million

Injuries alleged: Head injury, broken collarbone, shoulder, ribs, spine, foot, leg, dislocated knee and torn ACL

Case name: Case settled before a suit was filed

Venue: Greenville County

Date of settlement: Oct. 3, 2019

Special damages: $331,707 in medical costs, $48,141 in lost wages

Attorney for plaintiff: Eric Philpot of Philpot Law Firm in Greenville

Attorneys for defendant: Withheld

 

19. Auto insurer pays $2.15M in global deal over bad faith

Geico has paid $2.15 million to a Dorchester County man who won a verdict against a teen who rear-ended him after the teenager’s family hired a bad faith attorney to litigate the case directly against the insurance company, the injured man’s attorney reports.

Terence Weese was driving south on Bacons Bridge Road in Summerville in 2016 when the teenager, who was distracted by her cell phone, 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.

Last November, a jury awarded Terrence Weese $2.2 million, which Bringardner called one of the largest auto accident verdicts in the history of Dorchester County. (Lawyers Weekly reported on the verdict at the time.)

The teen had only $50,000 worth of liability insurance, and Weese demanded the full extent of the policy limits. Geico declined to tender the policy limits, offering to settle the case for only $15,000, and Weese filed suit to pursue an excess judgment. By the time trial commenced, Weese’s medical bills totaled more than $350,000, and a future surgery was recommended.

After a three-day trial and two hours of deliberations, the jury returned the $2.2 million verdict. Bringardner sent a post-verdict demand to Geico, and said defense counsel responded that Weese wouldn’t collect the excess verdict.

“But essentially, we did,” Bringardner said.

That’s because Bringardner suggested to the at-fault driver that she and her family hire an attorney to pursue a bad faith lawsuit against Geico, and they took his advice. As a judge was taking post-trial motions under consideration in Weese’s suit, the bad faith attorney helped the family with their own case against Geico for failing to protect them, Bringardner said.

“The bad faith lawyer sent a timed global demand for a confidential amount that would collectively resolve both my case and his client’s bad faith case in one swoop,” Bringardner said.

On the day of the deadline, Geico accepted the confidential demand, and Weese collected $2.15 million “without having to deal with an appeal,” he said.

Nickisha Woodward of Turner Padget in Charleston represented Geico. She could not be reached for comment.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH/BAD FAITH

Amount: $2.15 million

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 settlement: April 26, 2019

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

 

20. Golf cart crash results in $2M settlement

A woman who suffered a brain injury and 19 fractures in her face after a landscaper’s steel loader slammed into the golf cart she was riding in with her daughter has reached a $2 million pre-suit confidential settlement with the landscaping company, her attorney reports.

David Yarborough of Yarborough and Applegate in Charleston reports that his client, a 68-year-old woman whose name was withheld pursuant to a confidentiality agreement, was a passenger in the golf cart on Sullivan’s Island in October 2016 when a landscaper barreled off the property he was working and hit the cart.

The client was thrown through the windshield of the cart and landed on her head and face on concrete. She sustained a mild traumatic brain injury and at least 19 fractures to her face, skull, shoulder, foot and ankle, and dental injuries.

The client was rushed to the trauma unit at the Medical University of South Carolina Hospital in Charleston. Imaging confirmed that she had suffered tearing of the brain’s nerve fibers, hemorrhaging beneath the skull, fractures to the orbital roofs, traumatic pneumocephalus (air or gas within the cranial cavity), and tissue extending into the intracranial space. She also suffered fractures to her nasal bones, upper arm, and ankle.

A surgical team attempted to repair the damage to her face bones and mouth. The client was in the hospital for six days, including two days in the intensive care unit and four in the trauma unit. The team of doctors that attended to her identified cognitive communication deficits consistent with the traumatic brain injury she sustained, Yarborough said.

The client contended that the landscaping company failed to provide proper training to its employees, failed to conduct proper background checks on them, and failed to properly supervise them while allowing them to operate a 10,000-pound piece of equipment.

The driver of the loader had 23 prior charges filed against him, most of them related to traffic violations and car wrecks, and had two drug possession charges that were lodged three months before the accident, the client contended. She argued that the landscaping company either should have run a background check on the worker and then assessed the findings from a safety perspective, or that it knew of the driver’s history, but chose to put him on the job site anyway.

The client now uses a cane. Before her injuries, she had walked four miles per day, rode her bike, and played tennis almost every day, Yarborough said. She suffers post-injury hearing loss in her right ear and permanent damage to her olfactory nerves causing loss of her senses of smell and taste. She remains in chronic pain and with permanent scarring on her shoulder, nose, and upper lip, Yarborough said, and residual effects of the brain injury are still evident and even more pronounced. Other symptoms include insomnia, sleep disturbances, irritability and mood swings, anxiety and depression, and adverse effects on her relationship with her husband.

“While tremendously better than she was a year ago, she’s faced with the realization that her life will never return completely to the way it was,” Yarborough said.

The identities of the defendants, as well as their attorneys, were also withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $2 million

Injuries: Diffuse axonal shearing, subarachnoid hemorrhage and intraparenchymal hemorrhage, as well as bilateral fractures to the orbital roofs displaced on the right side with traumatic pneumocephalus and tissue extending into the intracranial space, fractures of her nasal bones, right humeral neck fracture, and right lateral malleolus fracture

Case name: Withheld

Venue: Withheld

Insurer: The Hartford

Date of settlement: Nov. 8, 2019

Special damages: $120,000 in past medical bills and $200,000 to $300,000 in future medical bills

Attorney for plaintiff: David Yarborough of Yarborough and Applegate in Charleston

Attorneys for defendant: Withheld

 

21. Driver awarded $1.93M for dump truck crash with unlicensed driver

A Charleston County jury has awarded a $1.93 million verdict in favor of a driver who suffered neck injuries after being hit by a dump truck whose driver did not have a license.

Mark Bringardner of the Joye Law Firm in North Charleston said his client, Henry Dawson, suffered severe spinal injuries in his neck from the 2016 crash. Bringardner said Dawson, who was 45 at the time, was making a left turn at a green light at the intersection of Carolina Bay Drive and Highway 17 in Charleston when a dump truck hauling a wood chipper for a tree service company ran the red light and crashed into him.

The jury handed down its verdict against Bulmaro Martinez, Rogelio Martinez and Martinez Tree Service on Oct. 3, awarding Dawson $1.13 million in actual damages and $800,000 in punitive damages. Bringardner said the company knew that the driver, a cousin of the company’s owner, didn’t have a drivers’ license, but it hired him and allowed him to drive a company vehicle anyway.

“They really didn’t have any remorse for doing that at all, even though they knew it was a violation of the law,” he said. “And I think that, at trial, when they testified about that, the jury did not appreciate that and wanted to make sure that my client was compensated fairly because of all the safety rule violations that they committed knowingly and with reckless disregard for public safety.”

Bringardner said special damages included $59,000 in past medical expenses, $433,000 in future medical expenses, and $20,000 in lost income. The verdict exceeded the demand of $750,000, and the highest offer from the insurer, Progressive, was $250,000.

Dawson was employed building Dreamliner airplanes at the Boeing plant in North Charleston and had to work through pain suffered in the crash, along with the limitations to his active lifestyle, Bringardner said.

“He was an avid biker. He was a Pee-Wee football coach, very active guy. He worked at Boeing at a very manual-intensive job. And every aspect of his life was compromised due to the neck injury he sustained in the collision. He wasn’t able to ride his bike nearly as he was once able or as long distances. He wasn’t able to lift weights or exercise,” he said.

Two attempts at mediation were unsuccessful. Bringardner said he and his client didn’t feel that Progressive was being fair and reasonable in its settlement offers, forcing the case to go to trial. Liability was admitted before the trial. He called it a “classic example of undervaluation of a case by a major insurance company that we had to take to trial.”

“The jury verdict was almost 10 times the best offer in the case, so it just kind of goes to show that the jury system here is remarkable, and it’s the most important right that we have is the right to civil jury trial guaranteed by the 7th Amendment so that we can get what’s fair for our clients,” he said.

Jeff Crudup of Clarkson Walsh & Coulter in Mount Pleasant represented the defendants. He could not be reached for comment.

VERDICT REPORT – MOTOR VEHICLE CRASH

Amount: $1.93 million ($1.13 million actual damages, $800,000 punitive damages)

Injuries alleged: Cervical spinal (neck) injury

Case name: Henry Dawson, Jr. v. Bulmaro Martinez, Rogelio Martinez, and Martinez Tree Service

Court: Charleston County Circuit Court

Case No.: 2017-CP-10-03050

Judge: Deadra L. Jefferson

Date of verdict: Oct. 3, 2019

Demand: $750,000

Highest offer: $250,000

Special damages: $59,000 for past medical expenses, $433,000 for future medical expenses, and $20,000 for lost income

Insurance carrier: Progressive

Attorney for plaintiff: Mark Bringardner of the Joye Law Firm in North Charleston

Attorney for defendant: Jeff Crudup of Clarkson Walsh & Coulter in Mount Pleasant

 

22. Fall down elevator shaft nets $1.8M settlement

A woman who fell down an elevator shaft while on vacation at a South Carolina beach home has confidentially settled a lawsuit for $1.8 million, her attorney reports.

Chris McCool of Joye Law Firm in Charleston reports that his client, whose name was withheld pursuant to a confidentiality agreement, was vacationing in a three-story home equipped with an elevator in April 2015. During the night, she tried to use it, and when the doors opened, she stepped in and fell through the shaft onto the concrete floor of the elevator pit on the ground floor. Her most severe injury was a fractured wrist that required several surgeries, first in South Carolina and then at the Mayo Clinic in Minnesota. Her wrist is now fused and she has limited movement with it.

The woman sued the owner of the property, its management companies, the elevator manufacturer, and the elevator service and repair companies, McCool said. She alleged that in the months prior to the accident, the property owner and management companies had learned that the elevator door was prone to opening without a car at the floor and hired elevator service and repair companies to repair and eliminate the problem.

“This case was as heavily defended as any case I have handled,” McCool said. “Our basic approach was that the door to an elevator should never open when an elevator car is not present.”

The elevator did not come equipped with a safety device that would have prevented the door from being opened without a car present, even in the event of negligent repair or servicing. The safety device is not required for elevators for private homes in South Carolina, but the vast majority of states throughout the country require it, and the manufacturer includes the $250 device in those states.

“There was a readily available and economically feasible alternative design that the manufacturer elected not to incorporate into the elevator and the homeowner, property manager, and repair and service personnel elected not to install the device once it was known there was a problem with the door,” McCool said. “The facts are so egregious, a jury would not have been really happy with the actions of all the defendants, individually and collectively.”

McCool said the initial challenge in the case was determining whether the elevator was defectively designed, negligently installed, negligently repaired and/or serviced, or some combination of the four. He said the turning point in negotiations occurred when the defense’s expert witnesses did not dispute the opinions of his expert witness.

“Each opinion rendered by our expert was supported by one, and often two, defense expert witnesses.” McCool said.

The defense argued comparative negligence because the woman drank with family and friends hours before the incident.

“This defense was impractical, because our client’s actions had nothing to do with the defendants failing to provide a safe and properly functioning elevator they knew would be used by people from all walks of life, at any hour of the day,” McCool said.

The identities of the attorneys for the defendants were also withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT — PRODUCT LIABILITY

Amount: $1.8 million

Injures: Fractured wrist, pelvic injuries

Case name: Confidential

Court: Confidential

Date of settlement: April 15, 2019

Special damages: $326,000 in medical expenses

Most helpful experts: John W. Koshak of Elevator Safety Solutions in Collierville, Tennessee (elevator design, manufacture, and service/repair)

Attorney for plaintiff: Chris McCool of Joye Law Firm in Charleston

Attorneys for defendants: Withheld

 

23. Surgery complications drive $1.6M workers’ comp settlement

A Charleston man who suffered a stroke after undergoing surgery to repair a shoulder injury he suffered while on the job has received $1.6 million in a confidential workers’ compensation settlement, his attorney reports.

David Pearlman of the Steinberg Law Firm in Charleston reports that his 56-year-old client injured his shoulder at work in September 2016. The client, who had a history of coronary artery disease, went under the knife the following summer, and two weeks later suffered a stroke that resulted in brain damage.

Pearlman said there was inadequate pre-surgery determination of the client’s risk for a potential stroke, and if the proper evaluation had been conducted before the surgery, procedures could have been used that would have prevented or reduced the possibility of a stroke. Pearlman said the client was taken off his anticoagulant medication before the surgery and was not properly put back on it after the surgery, putting him at a greater risk of having a stroke.

Pearlman said that the employers’ insurance company had disputed that the stroke was a catastrophic consequence of the shoulder surgery.

“I didn’t think that the stroke was just a mere coincidence and it just happened out of circumstance two weeks after having surgery,” Pearlman said. “We wanted to, and were able to, develop enough evidence and expert testimony to show that there was a relationship between the shoulder injury and the resulting surgery, and then the resulting stroke, which left my client with substantial brain damage.”

Pearlman said the client and his family were able to buy a modified van for transportation and make modifications to their home to accommodate his limited mobility as a result of the settlement, which was also used to pay off the client’s house and provide the family with financial stability since he could no longer work.

“We were pleased to be able to put together the medical avenues to support our claim and to achieve a very, very good result under the Workers’ Compensation Act for my client,” Pearlman said.

Lana Sims of Columbia mediated the settlement, which was agreed to Dec. 16. Many details of the settlement, including the identities of the parties, the location of the incident, and the names of the opposing, were withheld pursuant to a confidentiality agreement.

SETTLEMENT REPORT – WORKERS’ COMPENSATION

Amount: $1.6 million

Injuries alleged: Shoulder surgery resulting in stroke leading to brain damage

Case name: Confidential

Court: Confidential

Mediator: Lana Sims of Columbia

Date of settlement: Dec. 6, 2019

Most helpful experts: Morris Gitter of Charleston (emergency room doctor), Daniel Lackland of Charleston (epidemiologist), Walter Leventhal of Summerville (family physician), Marshall Whit of Mount Pleasant (neurologist), and Karen Shelton (life care plan)

Attorney for plaintiff: David Pearlman of the Steinberg Law Firm in Charleston

Attorney for defendant: Withheld

 

24. Sale of one beer to teen leads to $1.4M dram shop settlement

The owner of a convenience store that sold a single can of beer to a 19-year-old has agreed to pay a $1.4 million confidential settlement to the family of a teenager who was killed in an ensuing drunk driving wreck, the attorneys for the victim’s family report.

Michael Davenport of Davenport Law Firm in Wilmington, North Carolina and Scott Overholt and Greg Simons of Overholt Law Firm, also in Wilmington, report that the victim, who was also 19, was a passenger in a one-vehicle crash. The driver had purchased a 25-oz. can of Foster’s Premium Ale, which has an alcohol by volume of 5.5 percent, on Christmas night in 2013, and the clerk at the convenience store failed to check his ID, Davenport said.

Many of the details about the case, including the identities of the parties and the location of the incident, were withheld pursuant to a confidentiality agreement.

Davenport said that the driver was in a hurry to get home in time for a curfew established by his participation in an alcoholic rehabilitation program. While driving 80 mph through a 30-mph zone in a residential subdivision, he lost control of the vehicle, causing it to go airborne and hit a tree roof-first. The victim suffered severe injuries and was declared brain-dead. She was taken off life support and died a few days after the crash. The driver pleaded guilty to felony driving under the influence resulting in death and is currently serving a six-year sentence.

The victim’s family filed a dram shop suit against the convenience store in the U.S. District Court in South Carolina based on diversity jurisdiction. Under South Carolina law, vendors who sell alcohol to underage buyers can be held liable for any resulting injuries even if the buyer was not intoxicated at the time of the sale.

Davenport said that during expert depositions the defendant’s forensic toxicologist said that the can of beer the teen bought contained the same amount of alcohol as three and a half 1-oz. shots of 80-proof liquor. Using retrograde analysis, toxicologists for both sides concluded that the driver’s blood alcohol content at the time of the crash was 0.21, and 0.16 of the BAC was contributed by the beer. (The driver had previously consumed most of a 1.5 liter bottle of mouthwash, Davenport said.)

“The understanding of the forensic toxicology component of this was very important to the liability issue,” Davenport said. “To have experts on both sides who agreed with most of the exercise was not normally my experience as a plaintiff’s lawyer. Usually the plaintiff’s expert says one thing and the defendant’s expert says something else.”

Davenport said the known commodity in this case was the driver’s BAC at the time he arrived at the emergency room, and the ability to use science to determine his BAC at the time of the wreck, and establish culpability, set this case apart from other dram shop cases. One of the experts testified that with a BAC of 0.21, most people would be unconscious.

The parties settled the case on March 1 after mediation. The $1.4 million settlement includes $179,577.39 in special damages for medical costs.

Davenport said the case also may influence how retailers set policies regarding checking a customer’s ID for alcohol sales.

“If you sell to somebody and he’s underage, you’re liable.”

The names of the attorneys for the defendant were also withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT — DRAM SHOP

Amount: $1.4 million

Injuries alleged: Death

Case name: Withheld

Court: U.S. District Court for the District of South Carolina

Case No: Withheld

Mediator: Bo Wilson of Wilson & Heyward in Charleston

Judge: Bruce Howe Hendricks

Date of settlement: March 1, 2019

Special damages: $179,577.39 (medical costs)

Most helpful experts: David Alan Warren, Ph.D. of Beaufort (forensic toxicologist); Maj. Mark Willingham, Ph.D., of Jacksonville, Florida, (dram shop expert)

Attorneys for the plaintiff: Michael Davenport of Davenport Law Firm of Wilmington, North Carolina and Scott Overholt and Greg Simons of Overholt Law Firm, also in Wilmington

Attorney for the defendant: Withheld

 

25. Big retail pharmacy to pay $1.35M in wrongful death settlement

A major retail pharmacy has agreed to pay a $1.35 million settlement in the wrongful death of a 62-year-old Midlands woman who had her prescriptions for a weight loss drug filled at one of its locations, the plaintiff’s attorney reports.

Brink Hinson of the Finkel Law Firm in Columbia reports that his client died of cardiac arrhythmia and cardiomegaly (an irregular heartbeat and an enlarged heart, respectively) due to her frequent use of the weight loss drug phendimetrazine tartrate, which is sold under the brand name Bontril.

Phendimetrazine is an anorectic drug that suppresses the patient’s appetite by impacting the central nervous system in a way that increases their heart rate and blood pressure. Long-term use of the drug is known to cause cardiovascular problems like the ones that the victim suffered.

The estate alleged that pharmacists working for the retailer filled the victim’s prescription more than 75 times over nine years, even though the drug is intended for short-term use only and shouldn’t be prescribed and filled for longer than a few months. It argued that the pharmacists should have recognized that the drug was being overused and the duration of treatment was incorrect and either contacted the prescribing physician or refused to continue filling the prescriptions.

The estate reached a $750,000 settlement with the prescribing physician last year, resulting in a total recovery of $2.1 million for the estate.

Hinson said that pharmacists have a vital role to play in ensuring that medication is being prescribed to patients safely.

“In this case, warnings about inappropriate duration of medication treatment popped up on the pharmacists’ computer screen but were ignored without any consultation with the treating physician or with the patient,” Hinson said. “This tragedy could and should have been prevented by a simple telephone call to the doctor or a consultation with the patient when she went to pick up her medication.”

The identity of the defendant and its attorneys were withheld due to a confidentiality agreement.

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1,350,000

Injuries alleged: Death to an enlarged heart and irregular heartbeat

Case name: Withheld

Court: Withheld

Date of settlement: May 2019

Special damages: $633,596 (lost retirement income and loss of household services)

Attorney for plaintiff: Brink Hinson of Finkel Law Firm in Columbia

Attorneys for defendant: Withheld

 

26. $1.3M settlement after man killed by trailer left in highway lane

The family of a man who was killed when the van he was riding in crashed into an empty car-hauler trailer that had been allowed to come to rest in the lane of a highway has received a $1.3 million settlement for wrongful death and serious injury, the plaintiffs’ attorneys report.

Chris Hart of Columbia and Shean Williams and Gary Andrews of the Cochran Firm in Atlanta report that the family of Alfred Jackson sued the at-fault driver, Jerome McWilliams, for Jackson’s death and the injuries to other members of the family who were involved in the crash.

Hart said that Jackson and his family were on their way home from a Thanksgiving dinner when their passenger van crashed into the car-hauler trailer–a flatbed used to carry a single vehicle–on Interstate 20 in Lexington County. 

McWilliams had pulled his vehicle off the side of the highway but a good portion of the trailer was left in the roadway, and he did not place warning placards on the road, Hart said. Jackson, who was in the front passenger seat, died at the scene. Hart described his injuries as “horrific.”

Hart said that McWilliams was being paid $250 to drive the trailer throughout the state for another driver, Michael Brown, whose federal motor carrier placard was displayed in the truck at the time of the crash.

“It’s sad that someone had to lose their life over a $250 payment,” Hart said. “Hopefully, this will be a warning to other commercial motor vehicle drivers to take the precaution necessary to avoid collisions.”

McWilliams had a policy with Trustgard for $1 million, which paid the full policy limits. The family’s uninsured motorist coverage paid an additional $300,000.

The family is also currently pursuing a case against Brown in state court. As a regulated motor carrier, Brown was required by federal law to carry certain insurance. Trustgard, which, coincidentally, also insures Brown, sought a declaratory judgment in federal court that it was not liable to pay for any damages caused by Brown’s role in the accident. A federal judge ruled in favor of Trustgard, but in November the 4th Circuit vacated the ruling, saying that federal courts should not have exercised any jurisdiction over the dispute before the state court proceedings have concluded.

The plaintiffs filed their suit in Allendale County, where both of the defendants are from.

Ron Diegel and Kerri Rupert of Murphy & Grantland in Columbia and Jack Daniel of Copeland Stair Kingma & Lovell in Charleston represented the defendant. They did not respond to a request for comment.

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1.3 million

Injuries alleged: Death and serious injury

Case name: Sharon Collins, Dorothy Jackson, as Executor of Estate of Alfred Jackson v. Jerome McWilliams et al.

Court: Allendale County Circuit Court

Case No.: 2016-CP-03-00124

Judge: Jennifer McCoy

Date of settlement: Dec. 3, 2019

Insurance carrier: Trustgard

Attorneys for plaintiff: Chris Hart of Columbia and Shean Williams and Gary Andrews of the Cochran Firm in Atlanta

Attorneys for defendant: Ron Diegel and Kerri Rupert of Murphy & Grantland in Columbia and Jack Daniel of Copeland Stair Kingma & Lovell in Charleston

 

27. Dram shop case settles for $1.235M

A pair of grandparents and a grandchild who were seriously injured after their car was hit by an allegedly drunk driver have settled a lawsuit against the Spartanburg restaurant that served him for $1.235 million, their attorney reports.

Dell and Margie Johnson and their minor granddaughter were traveling south on U.S. 221 in March 2017 and were waiting in the turning lane when a truck being driven by David Shealy crossed the center line and struck their car head-on, said Ryan Langley of Hodge & Langley in Spartanburg, who represented the Johnsons.

Margie Johnson suffered a fractured tibia, ulnar, and patella. Dell Johnson suffered broken ribs, a broken pelvis, and a head injury that causes seizures. Shealy was taken to the hospital with significant injuries, Langley said.

The Johnsons alleged that Shealy had eaten lunch at Chief’s Wings and Firewater in Spartanburg, which is owned by Sparkle Entertainment, and that he had drunk numerous alcoholic beverages there.

Shealy said he had had only two drinks. The restaurant argued that Shealy’s blood alcohol level after the crash did not show extreme intoxication, and that there was no record proving that Shealy had ever even been at the restaurant.

The Johnsons, meanwhile, contended that the restaurant violated a number of industry standards for recordkeeping, documentation, and server supervision. Langley said that “the state trooper’s testimony as to the intoxication of Shealy would have carried the day in a jury trial.”

Bill Duncan of Butler Means Evins & Browne in Spartanburg represented Sparkle City Entertainment. He could not be reached for comment.

SETTLEMENT REPORT — DRAM SHOP

Amount: $1.235 million

Injuries alleged: Fractured tibia, ulnar, and patella; broken ribs, broken pelvis, and head injury causing significant seizures

Case name: Margie Johnson, individually and as POA for Dell Johnson, et. al. vs. Sparkle City Entertainment, LLC d/b/a Chiefs Wings & Firewater, et. al.

Court: Spartanburg County Circuit Court

Date of settlement: April 24, 2019

Attorneys for plaintiff: Ryan Langley of Hodge & Langley in Spartanburg

Attorney for defendants: Bill Duncan of Butler Means Evins & Browne in Spartanburg

 

28 (tie). Wreck bystander hit by car settles suit for $1.2M

A pedestrian who was severely injured after he was hit by a vehicle when he got out of his car to check the status of a wreck has settled a lawsuit against the at-fault driver for $1.2 million, his attorney reports.

Mark Bringardner of the Joye Law Firm in Charleston said that his client, Carl Ware, was driving on Brownswood Road in Charleston County in November 2017, when he came upon backed-up traffic caused by a fatal wreck on Maybank Highway, which intersected with Brownswood. Ware got out of his car, walked toward the scene, and saw that ambulances and police had arrived, so he began walking back to his car.

At the same time, Charles Kann, who had been sitting in traffic on Maybank, turned his car around and turned onto Brownswood, where his car hit Ware.

Ware was thrown into a ditch and suffered severe injuries. He was in the hospital for ten days with injuries including internal bleeding, collapsed lungs, shoulder trauma, various fractures, and head trauma. He needed multiple surgeries requiring medical device installation, and his wife, Cynthia Ware, suffered a loss of consortium, Bringardner said.

Bringardner said that liability was “hotly contested,” and police said that Ware was at fault. But even though the accident happened at night, drivers had their headlights and there was ambient light from a nearby apartment complex, so there was no reason that Kann should not have seen Ware, Bringardner said.

Kann was likely frustrated because he had been stuck in traffic for a long time and when he turned onto Brownswood, he gunned the engine and struck Ware, Bringardner said.

The accident has caused Ware to suffer serious depression, Bringardner said. A former competitive shagger, he no longer holds any interest in the dance and has withdrawn from his family and friends, Bringardner said.

Warren Moise of Grimball and Cabaniss in Charleston represented Kann. He declined to comment on the settlement.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.2 million

Injuries alleged: Internal bleeding, collapsed lungs, shoulder trauma, various fractures, head trauma, and loss of consortium

Case name: Carl Ware and Cynthia Ware v. Charles Kann

Court: Charleston County Circuit Court

Case No.: 2018-CP-10-00363

Mediator: John Tiller of Haynesworth Sinkler Boyd in Charleston

Date of settlement: May 15, 2019

Special damages: $305,000 (medical costs)

Attorney for plaintiff: Mark Bringardner of Joye Law Firm in Charleston

Attorney for defendant: Warren Moise of Grimball and Cabaniss in Charleston

 

28 (tie). “Disturbing” video a catalyst in $1.2M settlement

Video evidence of a pedestrian being hit by a truck in a crosswalk was powerful evidence that helped facilitate a $1.2 million mediation settlement in Lexington County, the plaintiff’s attorney reports.

Neal Lourie of Lourie Law Firm in Columbia described the video of the accident, which occurred on April 22, 2016 at about 11 a.m., as “very disturbing.”

“If you just read about what happened, it’s bad,” Lourie said. “But when you see it happening, the video is shocking.”

Lourie’s client, Rosswell Conklin, an employee at the Columbia Farms chicken processing plant on Sunset Boulevard in West Columbia, was crossing the street on his break when he was hit by a pickup truck. The boulevard has heavy traffic, and because the employee parking lot is across the street from the processing plant, there is a crosswalk in front of the plant.

“He stopped at the crosswalk and looks to his left. Looks to his right. Looks back to his left and he starts walking and then out of nowhere a kid driving a pickup truck comes flying and hits him on the left side of his body, and my client goes flying up into the air,” Lourie said.

“The video does not show the defendant attempting to put on the brakes. And he’s moving extremely fast. The officer wrote that he was going 50 miles per hour.”

Conklin suffered broken vertebrae, a broken tailbone, broken ribs, a broken leg, a torn ACL, a 90 percent tear to his rotator cuff, and post-traumatic stress disorder. Lourie said Conklin continues to be treated for injuries and pain suffered in the crash.

The driver, Christopher Beard, received a traffic citation for violating a state statute protecting pedestrians in a crosswalk, Lourie said. Conklin alleged that because Beard had violated a state law designed to protect pedestrians, the crash was a case of per se negligence, which would have allowed Conklin to pursue punitive damages had the case gone to trial.

Lourie said the ability to access video taken by a plant security camera at the crosswalk was the primary catalyst for the settlement. He encouraged victims and attorneys to request video footage of an incident immediately.

“If a client comes to you early, you’ve got to go to the scene and attempt to get video footage. And that made this case,” he said. “The reason you’ve got to get to this stuff early is a lot of these videos tape over the next week or the next day. They get deleted. And so that’s the key is getting the video quickly. You can’t wait.”

Kelli Sullivan of Clausen and Staubes in Columbia represented Beard. She declined to comment on the settlement.

Ron Stanley of the Stanley Law Group in Columbia mediated the settlement, which was agreed to on May 14. Robert Chambers, also of Lourie Law Firm in Columbia, also represented Conklin.

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1.2 million

Injuries alleged: Broken vertebrae, broken tailbone, broken ribs, broken leg, torn ACL, 90 percent tear of the rotator cuff, and post-traumatic stress disorder

Case name: Rosswell Conklin v. Christopher C. Beard

Court: Lexington County Circuit Court

Case No.: 2018-CP-32-01329

Mediator: Ron Stanley of the Stanley Law Group in Columbia

Date of settlement: May 14, 2019

Attorneys for plaintiff: Neal Lourie and Robert Chambers of Lourie Law Firm in Columbia

Attorney for defendant: Kelli Sullivan of Clausen and Staubes in Columbia

 

30. Dram shop suit nets $1.15M for woman whose skull was cracked

A woman who fractured her skull when she was hit by a drunk driver while she was out walking her dog has confidentially settled a lawsuit against the Greenville bar that served him alcohol for $1.15 million, her attorney reports.

Kenneth Berger in Columbia said that on Christmas Eve 2015, the bar served a customer the equivalent of eight-and-a-half shots of liquor within three hours. Within minutes of leaving the bar in his vehicle, the customer hit the woman, whose name was withheld pursuant to the confidentiality agreement. She landed on the car’s windshield and then fractured her skull on the pavement, causing a traumatic brain injury.

Police gave the driver three sobriety after they arrived at the scene, all of which he failed, Berger said, and the driver refused a Breathaylzer test. Police charged him with DWI, and he later pleaded guilty to a lesser charge.

Based on the driver’s receipt and the bartender’s testimony, the client was able to show how much alcohol the driver was sold, when it was sold, and what the corresponding range of blood alcohol content (BAC) would have been when the drinks were being served, Berger said.

A toxicology expert, David Eagerton of Buies Creek, North Carolina, performed a retrograde extrapolation, a calculation that estimates a person’s BAC. It placed the driver’s BAC at between .12 and .13 at the time of the collision. Liz Trendowski of Dram Shop Services in Hartford, Connecticut, provided a report detailing the bar’s various standard of care violations.

The woman spent five days in the hospital. The brain injury required a conservator to be appointed to manage her finances. She now lives independently, but is likely to require assisted facility care within the next five years, Berger said. 

Due to a confidentiality agreement, other details about the settlement, including the name of the bar, the driver and the defense attorneys, were not available.

SETTLEMENT REPORT – DRAM SHOP

Amount: $1,150,000

Injuries alleged: Traumatic brain Injury; occipital skull fracture

Case name: Confidential

Court: Greenville County Circuit Court 

Mediator: Karl Folkens of Florence

Date of settlement: Nov. 23, 2019

Special damages: $102,338.74

Most helpful experts: David Eagerton of Buies Creek, North Carolina (forensic toxicology ) and Liz Trendowski of Dram Shop Forensics in Hartford, Connecticut (alcohol service) 

Attorney for plaintiff: Kenneth Berger of Columbia

Attorney for defendant: Confidential