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Tort/Negligence – Product Liability – Mesothelioma – Empty Chair Defense – Bankruptcy Trust Claims 

By: S.C. Lawyers Weekly staff//August 17, 2022

Tort/Negligence – Product Liability – Mesothelioma – Empty Chair Defense – Bankruptcy Trust Claims 

By: S.C. Lawyers Weekly staff//August 17, 2022

In this survival and wrongful death case against the defendant-manufacturer of a product that contained asbestos, the trial court correctly refused to allow defendant to introduce evidence of the decedent’s claims against the trusts of bankrupt companies whose products also contained asbestos. Such claims were offers to compromise; as such, they were inadmissible under Rule 408, SCRE. 

We affirm the trial court’s rulings and uphold the $729,800 (after setoff) judgment for plaintiff. 


From 1963 to 2002, plaintiff’s decedent worked at a plant that transformed wood pulp into paper. Plaintiff presented evidence of decedent’s exposure to asbestos at work. Plaintiff also presented evidence of decedent’s diagnosis of, treatment for, pain and suffering from and death from mesothelioma. 

The jury awarded plaintiff $600,000 in damages for his survival action and $100,000 in damages for the wrongful death action. Upon plaintiff’s motion for a new trial nisi additur, the trial court increased the survival damages award to $1 million. 

Based on plaintiff’s allocation of the settlement funds he had received from other tortfeasors, the trial court reduced the survival damages by $207,200 and the wrongful death award by $828,000, which exceeded the jury’s award for wrongful death. After applying the setoff, the trial court entered judgment against defendant in the amount of $792,800. 


Contrary to defendant’s argument, plaintiff’s expert did not employ the “each and every exposure” theory of causation at trial. Rather, Dr. Arthur Frank deployed the cumulative dose theory, explaining how an individual’s risk of developing mesothelioma or other lung disease increases as that individual’s dose of asbestos increases through exposure. As did Dr. Frank, we have refused to conflate the cumulative dose theory with the each and every exposure theory. Jolly v. Gen. Elec. Co., 435 S.C. 607, 869 S.E.2d 819 (Ct. App. 2021). 

In increasing plaintiff’s survival damages, the trial court relied on uncontroverted evidence of decedent’s medical bills and his great pain and suffering caused by mesothelioma. By meticulously analyzing the details of decedent’s pain and suffering, loss of enjoyment of life, and mental anguish, and in analyzing other awards for similar cases, the trial court provided ample justification for increasing decedent’s survival award. 

Defendant argues the trial court erred in failing to reallocate plaintiff’s internal apportionment of settlement proceeds between the wrongful death (80 percent) and survival (20 percent) actions, claiming the allocation did not reflect “fairness and justice.” However, plaintiffs who settle with defendants gain control and leverage in relation to non-settling defendants – control that is often reflected in the plaintiff’s ability to apportion settlement proceeds in a manner most advantageous to it. The fact that plaintiff’s internal allocation of the proceeds is not in defendant’s best interests is insufficient to justify an appellate reapportionment for the sole purpose of benefitting a non-settling party. 

Because we do not perceive the effect of setoff based on plaintiff’s internal allocation as improper, unreasonable under the facts of this case, or unfair simply because it favored plaintiff and did not reflect percentages that corresponded with the percentage of each award, we find the trial court did not err in denying defendant’s motion to reallocate plaintiff’s settlement proceeds for the purpose of setoff. 

Finally, defendant argues the trial court erred in refusing to admit claims that plaintiff filed with bankruptcy trusts established by companies that manufactured asbestos-containing products used by decedent’s employer. Defendant contends the trial court made it impossible for defendant to try its empty-chair defense. We disagree. 

Plaintiff’s trust claims are an offer to compromise. Although these claims could amount to a party admission, this type of admission—made for the purpose of settling a claim—is precisely what Rule 408, SCRE, was designed to exclude at trial. The purpose of Rule 408 is to encourage free and unfettered negotiation while providing parties peace of mind that their negotiations—concessions, denials, admissions, and claim amounts—cannot be used against them to prove liability for the disputed claims or its amount at trial. 

Further, defendant’s empty-chair defense argument fails to grasp the nature and purpose of these unique trusts and the empty-chair defense. The empty-chair defense is the defendant’s right to assert another potential tortfeasor, whether a party or not, contributed to the alleged injury or damages and was codified in the Uniform Contribution Among Tortfeasors Act at S.C. Code Ann. § 15-38-15. In seeking to establish an empty-chair defense, a defendant must assign fault for the plaintiff’s injury to another party by providing evidence to the fact-finder that is sufficient for it to determine whether the party’s actions were the cause of the plaintiff’s injuries. 

Here, the settlement claims plaintiff filed would not provide evidence to the jury that is sufficient for it to determine if the bankrupt companies’ products were the cause of decedent’s mesothelioma. The claims would only show that decedent could have been exposed to their products and that he was seeking compensation from the trusts for his mesothelioma. The claims do not in themselves provide a link between decedent’s mesothelioma and the bankrupt companies’ products. 

Moreover, contrary to defendant’s argument on appeal, the trial court’s ruling in no way “made it impossible for [defendant] to try its empty-chair defense.” The record is replete with instances of defendant interrogating witnesses regarding other companies that produced asbestos-containing dryer felts, insulation, and valves used at the employer’s plant. At trial, defendant named 13 manufacturers of asbestos-containing products used at the employer’s plant during decedent’s employment. The trial court did not err in refusing to admit the bankruptcy trust claims and did not prevent defendant from trying its empty-chair defense. 


 Edwards v. Scapa Waycross, Inc. (Lawyers Weekly No. 011-049-22, 20 pp.) (Bruce Williams, C.J.) Appealed from York County Circuit Court (Jean Hoefer Toal, J.) William Peele Early, Joseph Wilson, Christopher Collier and Robert Gilbreath for appellant; Mona Lisa Wallace, Kathleen Chewning Barnes, Gregory Lynn Hyland, Thomas Hart, Frederick John Jekel and William Graham for respondent. S.C. App. 

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