South Carolina Lawyers Weekly March 28, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 7 ■

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Hawk lawyer’s suit against ODC won’t fly in federal court ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

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ur Top Verdicts & Settlements list for 2021 is the first—and, hopefully, only—list that was fully impacted by the COVID-19 pandemic. As that year began, none of us really knew what it had in store for the legal profession. But as it turned out, our 2021 list ably demonstrates the resiliency of the legal profession and the civil justice system, and their ability to pursue justice even under the most trying of circumstances. As you look over the list from 2021, there is hardly any sign at all that attorneys were operating in any sort of adverse environment. That was largely true of our 2020 list as well, but the

first three months of that year were largely unaffected by the pandemic, and plenty of other settlement negotiations were surely very close to the finish line when the pandemic closed down courts, and only needed a little bit more of a nudge to get over the line. There were understandable

See page 6 concerns that 2021 might prove different. The closing of courts caused a backlog of cases awaiting trial, which potentially could have slowed down both trials and settlements. Our list

is only a partial snapshot of the civil justice system, comprised mostly of cases submitted to us by attorneys, but the picture we have suggests that these fears did not come to pass, and attorneys were able to keep the wheels of justice turning at a normal speed even in the face of adversity. The pandemic is not truly over, of course, but it does seem to finally be receding into history. If so, the civil justice system has done a truly remarkable job of navigating the storm and helping clients bring their cases to a close and get on with their lives. David Donovan Editor-in-chief

A federal court has declined to hear constitutional claims brought by a South Carolina attorney and his law firm against the state’s Commission on Lawyer Conduct and Office of Disciplinary Conduct, citing the abstention doctrine established by the U.S. Supreme Court’s 1971 ruling in Younger v. Harris. John Hawkins, founder of HawkLaw in Greenville, sought declaratory and injunctive relief from the U.S. District Court for the District of South Carolina, claiming violations of his First and Fourteenth Amendment rights. But U.S. District Judge J. Michelle Childs ruled that the court should abstain from the matter in the absence of bad faith, harassment, or another extraordinary circumstance that would make abstention inappropriate under Younger. In Younger, the nation’s highest court held that federal courts were required to abstain from hearing civil rights tort claims brought by those being prosecuted for a matter arising from the claim. Childs wrote that though Hawkins’ firm isn’t a party in any pending state court proceedings, its claims that the South Carolina Rules of Professional Conduct—applicable only to attorneys licensed in the state—are unconstitutional are entirely derivative of Hawkins’ claims, “unavoidably intertwined and inseparable,” See Hawk Law Page 5 ►

$6.55M settlement for estate of wife killed by husband’s negligence ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The estate of a woman who was killed in a highspeed car crash has agreed to settle its wrongful death suit against the woman’s husband for $6.55 million, its attorneys report. Robert Phillips of McGowan Hood Felder & Phillips in Rock Hill and Bert “Skip” Utsey of Clawson Fargnoli Utsey in Charleston report that Helen Phillips and Ashley Phillips were already experiencing marital difficulties six weeks after they were married in 2017. During an argument,

Ashley “coerced” his new bride to go out in her vehicle, the attorneys said. Ashley, who had been drinking, sped down the winding back Robert Bert Utsey roads of Chesterfield County and Phillips lost control of the vehicle, slamming into a telephone pole. Ashley suffered serious injuries but was able to free

himself from the vehicle. Helen survived approximately two weeks before succumbing to her injuries, her attorneys said. The attorneys said that the vehicle’s insurer tendered its coverage limits of $50,000, but the insurer of seven commercial vehicles used by Ashley’s business initially asserted the limiting vehicle doctrine to tender just $175,000 ($25,000 per vehicle) in total underinsured motorist coverage (UIM). Phillips said that the estate’s attorneys beSee Husband Page 3 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Florence Co. settles suit over inmate’s death for $1.35M

Fatal crash into stalled truck prompts $735K settlement

Open letter to a DEI skeptic

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LAWYERS IN THE NEWS M. Rhett DeHart has joined Womble Bond Dickinson on the firm’s white collar and government investigations team in its Charleston office. DeHart comes to the firm from the U.S. Attorney’s Office for the District of South Carolina, where he spent 20 years as a federal prosecutor and most recently served as Acting U.S. Attorney. Zachary W. Jarrett has joined Turner Padget as a shareholder in the firm’s Charleston office. Jarrett represents employers and insurance carriers in workers compensation claims. Jessica S. Ferguson and John W. Reese III have also joined Turner Padget, as associates in its Greenville and Myrtle Beach offices, respectively. Stuart Andrews has joined Burnette Shutt & McDaniel in Columbia, where his practice will include civil rights law and litigation, administrative law and qui

tam whistleblower cases. Andrews is an experienced civil rights attorney and previously led the SC Legal Services Association. Wes Gangi, John Bozeman, Sarah Kamensky, and Collin Peck have joined K&L Gates as associates in the firm’s Charleston office. Gangi joins the firm’s asset management and investment funds practice group, and Bozeman, Kamensky, and Peck join its real estate practice group. Jessica Monsell has joined Wyche as an associate in the firm’s litigation practice in its Greenville office. Monsell will focus her practice on complex business litigation, insurance, technology, and transportation law. Wyche also announced that Lucy Dinkins in the firm’s Columbia office and Camden Navarro Massingill in the firm’s Greenville office have been named shareholders in the firm.

BAR DISCIPLINE

ROUNDUP Attorney: Edward Delane Rosemond Location: Seneca Bar membership: Member since 1998 Disciplinary action: Suspended from the practice of law until further order on March 10 Background: The Office of Disciplinary Counsel asked the Supreme Court to place Rosemond on interim suspension pursuant to Rule 17(b) of the Rules for Lawyer Disciplinary Enforcement and appoint a receiver to protect the interests of his clients. The court ordered that Rosemond’s license to practice law in the state be suspended until further order and a special receiver be appointed to assume responsibility for his client files and law office accounts to protect the interests of his clients. Previous discipline: None Attorney: Elizabeth Anne Perkins

Location: Columbia Bar membership: Member since 2018 Disciplinary action: Suspended from the practice of law until further order on March 10 Background: The Office of Disciplinary Counsel asked the Supreme Court to place Perkins on interim suspension pursuant to Rule 17 of the Rules for Lawyer Disciplinary Enforcement, and the court ordered that Perkins’s license to practice law in the state be suspended until further order. Previous discipline: Perkins was suspended from the practice of law for six months in March 2019 and reinstated in November 2019. All information contained in the Bar Discipline Roundup is compiled and edited by Lawyers Weekly editor in chief David Donovan. He can be reached at david. donovan@sclawyersweekly.com.

NEWS BRIEFS New charges filed against Murdaugh, Fleming A grand jury has issued a total of 22 new indictments against suspended attorneys Cory Fleming and Alex Murdaugh, South Carolina Attorney General Alan Wilson announced in a March 16 press release. The new charges—four against Murdaugh and 18 against Fleming—include money laundering, computer crimes, criminal conspiracy, false statement or misrepresentation in connection with an insurance transaction, and breach of trust. Murdaugh, whose law license was suspended in September, was previously indicted for offenses related to a scheme to commit suicide and defraud an insurance company. He was indicted in November 2021, December 2021, and January 2022 for 71 counts of financial and computer crimes, accused of bilking victims out of more than $8 million. Fleming, whose law license was suspended in October, is accused of stealing more than $3.5 million. In the superseding March indictment, Murdaugh and Fleming are charged with one count of criminal conspiracy for conspiring to surreptitiously give Murdaugh a share of Fleming’s fee from the multimillion-dollar settlement of civil claims against Murdaugh resulting from the death of his housekeeper, Gloria Satterfield, who died in a fall at Murdaugh’s home. Murdaugh’s new charges—three counts of making false statements or misrepresentation in connection with an insurance transaction—arise out of an alleged scheme to defraud multiple insurance companies while surreptitiously delivering to him a share of the proceeds resulting from the settlement of the claims against him. Fleming’s new charges—three counts of false statement or misrepresentation in connection with an insurance transaction, four counts of breach of trust with fraudulent intent, three counts of breach of trust with fraudulent intent, six counts of money laundering, and one count of computer crime—arise from the same alleged scheme to defraud multiple insurance companies, but also include allegedly defrauding the personal representatives and heirs of Satterfield’s estate. The indictment alleges schemes by Fleming to defraud the victims of not only the $3,483,431.95 delivered to Murdaugh, but also of $140,000 wrongfully appropriated or retained by Fleming. Altogether, through 15 indictments containing 75 charges against Murdaugh, the state grand jury has indicted him for schemes to defraud victims of $8,492,888.31. If convicted on all counts, both men could face decades in prison and hundreds of thousands of dollars in fines. The investigation is being conducted by South Carolina Law Enforcement Division, the South Car-

olina Attorney General’s Office, the Federal Bureau of Investigation, and the United States Attorney’s Office and will be prosecuted by the South Carolina Attorney General’s Office. Staff reports

High court rejects case of Christian group, bisexual lawyer WASHINGTON (AP) — The U.S. Supreme Court says it won’t review the case of a Seattle-based Christian organization that was sued after declining to hire a bisexual lawyer who applied for a job. A lower court let the case go forward, and the high court said on March 21 that it wouldn’t intervene. Two justices, Justice Samuel Alito and Justice Clarence Thomas, agreed with the decision not to hear the case at this stage but said that “the day may soon come” when the court needs to confront the issue the case presents. The case the high court declined to hear involves Seattle’s Union Gospel Mission. In addition to providing food and shelter to the homeless the organization offers addiction recovery, job placement and legal services. In 2016 it was looking for an attorney to help staff its legal-aid clinic. One of the applicants was Matthew Woods, who had volunteered at the clinic for more than three years. Woods identifies as bisexual and was in a same-sex relationship. He was told before he applied that his application would be rejected because the organization’s “code of conduct excludes homosexual activity.” Woods sued, arguing that the organization violated state law by discriminating against him on the basis of his sexual orientation. A state trial court judge ruled for Seattle’s Union Gospel Mission and dismissed Woods’ lawsuit. The judge ruled that the organization is exempt from the state’s anti-discrimination law. But the Washington Supreme Court reversed the decision and let the lawsuit go forward. The Supreme Court does already have a different high-profile dispute involving a clash between religion and the rights of LGBTQ people on its docket. That dispute involves a Colorado web designer who says her religious beliefs prevent her from offering wedding website designs to gay couples. That case is expected to be argued in the fall.

Jackson pushes back at critics, defends record WASHINGTON (AP) — Facing Republican senators’ pointed questions, Supreme Court nominee Ketanji Brown Jackson forcefully defended her record as a federal judge on March 22 and declared she

will rule “from a position of neutrality” if confirmed as the first Black woman on the high court. Jackson responded to Republicans who have questioned whether she is too liberal in her judicial philosophy, saying she tries to “understand what the people who created this law intended.” She said she relies on the words of statutes but also looks to history and practice when the meaning may not be clear. She pushed back strongly against suggestions that she has given light sentences to child pornographers. Could her rulings have endangered children? “As a mother and a judge,” she said, “nothing could be further from the truth.” She described looking into the eyes of defendants and emphasizing the lifelong effects on victims. She said it is “important to me to represent that the children’s voices are represented.” Tuesday’s hearing was the first of two days of questioning after Jackson and the 22 members of the panel gave opening statements on Monday. On Thursday, the committee heard from legal experts before an eventual vote to move her nomination to the Senate floor. Barring unexpected developments, Democrats who control the Senate by the slimmest of margins hope to wrap up Jackson’s confirmation before Easter, though Breyer is not leaving the court until after the current session ends this summer. In what Judiciary Committee Chairman Dick Durbin, D-Ill., described as “a trial by ordeal,” Jackson answered questions right off the bat that attempted to deflect GOP concerns and also highlight the empathetic style that she has frequently described when she is handing down sentences. Republicans planned to use their questioning to brand Jackson—and Democrats in general—as soft on crime, an emerging theme in GOP midterm election campaigns. Jackson told the committee that her brother and two uncles served as police officers, and “crime and the effect on the community, and the need for law enforcement—those are not abstract concepts or political slogans to me.” She also defended work she did around 15 years ago as a public defender and later in private practice representing four Guantanamo Bay detainees. While some Republicans have complained that Jackson was defending terrorists, she noted that defenders don’t pick their clients and are “standing up for the constitutional value of representation.” Jackson said she continued to represent one client in private practice because her firm happened to be assigned his case. She appeared taken aback during further questioning on her detainee work from Texas Sen. John Cornyn, who asked why she would have called See Page 5 ►

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Florence Co. settles suit over inmate’s death for $1.35M ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The South Carolina Insurance Reserve Fund has agreed to pay $1.35 million to the estate of a mentally ill man who died in a segregation unit of the Florence County Detention Center, the attorneys for his estate report. The carrier will pay $975,000 on behalf of Florence County and its James sheriff’s office and $375,000 on beMoore III half of a contract provider, the attorneys said. Many details of the case have been withheld due to a confidentiality agreement. James Moore III and Scott Evans of Evans Moore in Georgetown report that the deceased, whose mental health conditions included schizophrenia, had spent approximately eight months in “extreme isoScott Evans lation” in the Maximum Segregation Unit after being placed on suicide watch by jail staff and a psychiatrist. Attorneys said that the man self-reported to the McLeod Regional Medical Center in February 2018, seeking help for his mental health conditions. He was arrested after becoming combative with staff, the attorneys said, and should’ve faced only a 30-day jail

sentence. After being placed on suicide watch, the deceased became ineligible for release without being involuntarily committed to a mental health facility or placed in the care and custody of the Department of Social Services as a vulnerable adult, the attorneys said, adding that suicide watch is intended as a temporary precaution to be used for no more than a few days until a detainee’s mental health can be stabilized. “While on suicide watch, his mental health continued to deteriorate,” his attorneys said. “[He] had been critically sick for a period of at least five days leading to his death. On numerous occasions it was reported that [he] … had not consumed any food and needed urgent medical attention.” The attorneys said that the deceased also suffered from hallucinations and that he spent several days during the week of his death lying on the floor, on a mattress covered with feces, urine, and vomit. On Oct. 19, 2018, he was discovered unresponsive in his cell, his attorneys said, and had eaten portions of his soiled mattress. The reported downtime between cell checks was approximately 15 minutes, but that emergency medical workers reported that the man appeared to have been dead considerably longer. According to medical reports, the man was cold to the touch and showed indications of early rigor mortis. Beyond regular cell checks, detainees on suicide watch are supposed to be video monitored 24 hours a day. Attorneys said that an autopsy revealed that the

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1.35 million Case name: Withheld Court: Florence County Circuit Court Date of settlement: Feb. 1 Insurance carrier: South Carolina Insurance Reserve Fund Attorneys for plaintiff: James Moore III and Scott Evans of Evans Moore in Georgetown Attorneys for defendants: Withheld man was dehydrated but that he died from a small bowel obstruction, present for days before his death, caused by material from the mattress and plastic bottle caps. The lawsuit was brought pursuant to the state’s Tort Claims Act and Medical Malpractice Act, alleging the defendants were grossly negligent in providing the man with access to reasonable medical care. The attorneys said that they served the sheriff’s office a preservation letter requesting that the agency preserve all video surveillance of the man’s unit from Oct. 17 to Oct. 20, 2018. “Despite Plaintiff’s request for preservation and the existence of a criminal investigation, the requested video surveillance was destroyed,” the attorneys wrote in an email to Lawyers Weekly.

Fatal crash into stalled truck prompts $735K settlement ■ BY DAVID BAUGHER A fatal car crash caused by a tractor trailer that had become stuck at an intersection has resulted in a $735,000 multiparty settlement for the estate of the husband and wife who were injured in the crash, the estate’s attorneys report. Brad Banyas of Hughey Law Firm in Charleston and Larry Brad Banyas Weston of Sumter report that Daisy and Layden Taylor were both passengers in a vehicle that crashed into a tractor trailer that had been carrying farm equipment and become stuck while negotiating a turn at a “Y”shaped intersection in a two-lane rural road. Banyas said that Daisy Taylor died from her injuries. Layden Taylor suffered a femur fracture in the crash and later passed away due to unrelated causes. The estate alleged that the 2017 crash was caused in part by the driver of the truck leaving it unattended without flares, signage or strobe lights. “There were no warnings that would alert other members of the traveling public that there was a danger up ahead,” Banyas said. Banyas said that the tractor trailer was a “lowboy,” meaning that the trailer sat much lower to the ground compared to a standard flatbed trailer.

The road had a slight rise in the grade, and there was perhaps less than eight inches of clearance underneath the trailer. The trailer got caught on that grade, causing the truck to stall out on the road. Banyas said the car in which the Taylors were passengers might have been traveling as fast as 71 mph, based on data from the airbag module. He said that the incident took place during daylight hours and that the road had a mild curve but was relatively straight. A police investigation that was highlighted by the trucking company mentioned that a Good Samaritan may have been flagging vehicles to alert them to the situation, but the identity and presence of this person was never confirmed in depositions. The defendants initially denied liability in the crash, but ultimately the insurer for the company that owned the truck tendered a $1 million global settlement, of which the Taylors’ estate received $700,000. The remaining $35,000 came from the South Carolina Department of Transportation, related to alleged issues with the grade in the road. Banyas said that an earlier settlement with the insurer for the driver of the vehicle the Taylors were riding in netted another $200,000 in damages for his clients and $45,815 in property damages, bringing the total recovery to over $980,000. Ronald B. Diegel of Murphy & Grantland in Columbia represented the driver and the trucking company. G. Murrell Smith of Smith, Robinson, Holler, DuBose & Morgan in Sumter represented the

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $735,000 Injuries alleged: Death of one spouse, femur fracture and emotional distress of surviving spouse Case name: Estate of Taylor v. PEMO Trucking; Charles Hodge; SCDOT Venue: Clarendon County Circuit Court Case No.: 2019-CP-14-00323 Date of settlement: March 7 Insurance carrier: Progressive (for trucking company and driver), South Carolina Insurance Reserve Fund (for SCDOT) Attorneys for plaintiff: Brad Banyas of Hughey Law Firm in Charleston and Larry Weston of Sumter Attorneys for defendants: Ronald Diegel of Murphy & Grantland in Columbia for trucking company and driver and G. Murrell Smith of Smith, Robinson, Holler, DuBose & Morgan in Sumter for SCDOT SCDOT. Neither attorney responded to requests for comment on the settlement.

HUSBAND / Facebook posts added to action’s value C o nt inu e d f r o m 1 ►

lieved that the vehicle in the crash also qualified as an insured vehicle under the commercial policy, which would trigger $1 million in bodily injury coverage, and that while the limiting vehicle doctrine could have been in play, the commercial policy provided superseding coverage and would thus allow for an additional $7 million in UIM coverage. The attorneys said that the insurer agreed to tender the $1 million in bodily injury limits in exchange for a covenant, and that plaintiffs learned during discovery that Ashley also had a $3 million personal umbrella policy through another insurer. That insurer tendered the liability coverage after plaintiff’s attorneys issued a time-limited demand. After a protracted mediation, the parties settled the case for an additional $2.5 million, Phillips said. The case was mediated by Tom Wills of

Charleston. “The total of the four settlements ($6,550,000) is believed to be the largest spouse vs. spouse result in the history of South Carolina,” Phillips wrote in an email. Robert King of King, Love, Hupfer & Nance in Florence and Dominic Starr of McAngus Goudelock & Courie in Myrtle Beach represented the defendants. Starr said that he was unable to comment before press time. Phillips said that defense counsel argued that the case would have a lower value because the crash was an accident and Ashley was extremely remorseful. “However, counsel for Plaintiff was able to find Facebook posts that were available publicly on the Defendant’s friends’ Facebook pages that tended to show he was not remorseful but, in fact, rather callous about the death of his newlywed wife,” Phillips wrote. “This discovery substantially increased the value of the tort action.”

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $6.55 million Injuries alleged: Death and conscious pain and suffering Case name: Burr v. Phillips Court: Chesterfield County Circuit Court Case No.: 2019-CP-13-00208 Mediator: Tom Wills of Charleston Date of settlement: Dec. 2021 Attorneys for plaintiff: Robert Phillips of McGowan Hood Felder & Phillips in Rock Hill and Bert “Skip” Utsey of Clawson Fargnoli Utsey in Charleston Attorneys for defendant: Robert King of King, Love, Hupfer & Nance in Florence and Dominic Starr of McAngus Goudelock & Courie in Myrtle Beach

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Open letter to a DEI skeptic ■ BY TRENT B. COLLIER My law firm is one of many to form a committee on diversity, equity, and inclusion, or DEI, over the past few years. You’re right: this seems to be a national trend. More and more firms view DEI work as a chance to put the legal profession’s core values into practice. But I understand you’re skeptical about DEI work and that many in the legal profession greet DEI initiatives with eye rolls and disdain. Those opposed to DEI initiatives offer three main arguments. First, there’s the argument that DEI work is empty virtue-signaling—a false posture for “likes” on LinkedIn posts. Second, some argue that DEI emphasizes our differences when we should focus instead on our common humanity. Third, some believe that DEI work can only open doors for some if it closes doors for others. And if this door-opening decision hinges on, say, race or gender, then DEI is inherently prejudicial in their view. I think it’s important for those of us who value DEI work to understand these criticisms as offered in good faith and to respond in kind. Here’s my attempt.

DEI is about more than collecting ‘likes’ on LinkedIn Let’s start with the first criticism—your argument that DEI is just theater. Talk of DEI certainly can be empty sloganeering sometimes. We all fall short of the principles we espouse; it doesn’t follow that those principles lack merit. To understand why DEI initiatives are not theater, it helps to consider some of the core beliefs underlying this work. First, there’s the recognition that we spend our lives making choices that open some doors and close others. When we pick a law school, for example, that opens certain doors (like the influence of certain professors or the assistance of certain alumni) and closes others (like the professors and alumni at other schools). Which doors we choose depends in part on which doors we think are available to us. We ask ourselves if there’s room for someone like us on the other side. DEI committees exist because we want the answer to be an emphatic yes—without regard to race, gender, religion or any similar trait—for every door in the legal profession. That’s what DEI committees mean when they talk about “representation.” DEI work also arises from the recognition that, as our careers progress, we find ourselves holding the keys to certain doors—to jobs, to promotions, to opportunities, to raises and so on. We want to be good stewards of those doors. And being a good steward means ensuring that those doors are open to anyone qualified to use them. This equal-protection principle is a constitutional value—one of the rules we pledge to support when we earn a bar card— and we can uphold that value only if we act with intention. DEI work also demands a little humility. It recognizes that we are flawed human beings who are not always aware of our own biases. We may close doors to others based on assumptions we hardly know we’ve

made. Just as you cannot choose an antidote until you identify the poison, you cannot address bias until you identify it. That work starts with our own biases. What does DEI look like on the ground? Judging from firms around the country, DEI means actions like: Keeping track of who gets invited to client meetings to make sure everyone is getting opportunities to grow their business. Doing more to recruit from underrepresented groups, such as sending job openings to affinity bar groups. Reviewing salaries to look for pay gaps. Encouraging attorneys to share their pronouns so everyone feels free to be themselves. Investing in underprivileged communities to ensure that today’s young people have the opportunity to become tomorrow’s leaders. The list could go on and on. The point is that DEI work involves deliberate actions, grounded in constitutional values, that can make a difference in people’s lives.

You’ve argued that the only ethical and legal response to discrimination is to take no account of race or any similar characteristic. That idea finds an ally in Chief Justice Roberts, who wrote in 2007 that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In a sense, you’re right. If we were creating a new society from scratch, without a history, this idea might have merit. We all want a society where people have the same opportunities no matter their race or gender or religion or so on. If we could work from a blank slate, of course we’d prefer to take such considerations off the table. But we’re not working from a blank slate. Our culture has a long history of discrimination against certain groups. Indeed, our Constitution itself originally included a racist compromise designed to preserve slavery—an institution of unfathomable racism, violence and cruelty. Things may be better today. But racism, sexism, and other forms of discrimination remain painful realities for many Americans. We have miles to go before we can declare victory over discrimination—particularly when much of that discrimination comes from complex institutions and unconscious biases. The truth is that refusing to acknowledge race and other protected characteristics is not a neutral position. At its worst, it’s a position that perpetuates harm while polishing its own halo. We form DEI committees because we recognize this country’s history and we recognize the discriminatory forces still at work today. We cannot accept facile answers to complicated problems—at least not if we intend to solve those problems.

heart of this somebody-has-to-lose criticism is the fear that one group— white, heterosexual men, usually— are going to be on the losing end of every decision now. It’s tempting for DEI-minded folks to respond that white, heterosexual men have had unfair advantages for hundreds of years and would be wise to keep their bellyaching to themselves. But you’re right. That response isn’t helpful or even persuasive. We don’t punish children for their parents’ sins; we shouldn’t justify discrimination against a group today based on that group’s discrimination in the past. Instead, we can rely on a healthy dose of truth. And the truth is that not everything is a zero-sum game. We can work toward diversity, equity and inclusion without creating new forms of inequality. We can make sure every voice is heard without silencing any voices. For example, if a firm is looking for a new associate, it could just place its ad with the usual outlets and forego any DEI considerations. Alternatively, it could make sure its ad gets the widest possible audience by deliberately reaching out to affinity bar groups. Increasing the audience doesn’t harm anyone. To the contrary, the increased competition only increases the firm’s odds of making a great hire. No one loses. Or consider what happens when a firm looks critically at its standard operating procedure. It might discover that having every firm event revolve around that old law-firm standby, alcohol, sends an exclusionary message to those who avoid alcohol for religious or other reasons. That doesn’t mean that a firm must eliminate all events featuring alcohol. Instead, it means planning some events that don’t revolve around alcohol. No one loses. Or think about how DEI initiatives might work when it comes to hiring decisions. Becoming more mindful of your unconscious biases—of all the little presumptions shaping personnel decisions—only helps you combat those biases. And combatting those biases helps you make a better decision—one based on the things that really matter. Maybe you find yourself more drawn to candidates with familiarsounding names rather than those with unfamiliar names. That’s a silly reason for a personnel decision, so out it goes. Or maybe you find yourself presuming that a former college football player is less intelligent than a former college chess player. Again, a bad assumption. Out it goes. Or maybe you realize that you view a soft-spoken candidate as less capable of handling courtroom rough-and-tumble than a more boisterous candidate. That assumption is hardly grounded in fact, so out it goes. Uncovering these biases harms no one. Instead, that process eliminates noise and equips firms to make better hiring decisions.

DEI need not come at somebody’s expense

Why should you participate in DEI work?

Ignoring race and other characteristics is not neutral

Finally, I’ve heard you argue that DEI is inherently discriminatory— that we can only ensure one group’s success while robbing another group of its success. What’s often at the

Ultimately, there are many reasons for firms to spend time and money on diversity, equity and inSee Page 5 ►

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HAWK LAW / Suit against ODC won’t fly in federal court C o nt inu e d f r o m 1 ►

and subject to Younger abstention. “The court finds that the state attorney disciplinary proceedings at issue fall with the province of the Younger abstention doctrine and the proceedings are judicial in nature, implicate important state interests, and provide adequate opportunity for Plaintiffs to raise their constitutional challenges,” Childs wrote. “As such, principles of comity and federalism counsel the court’s abstention from this matter.”

Watching like a hawk

The ODC began investigating Hawkins in 2014 after receiving a formal complaint stating that some of his advertisements violated the state’s rules of professional conduct. The investigation culminated in 2015, with Hawkins receiving a “letter of caution” about using a certain phrase in his ads. The ODC opened subsequent investigations in 2017, 2018, and 2019 after complaints of, among other things, use of the name “the Hawk” and the sounds of a screeching hawk in commercials. The agency filed formal charges in April 2021, alleging violations

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clusion. For some, it’s the oath we take to support the Constitution and its guarantee of equal protection. For others, it’s the principle that we should treat others the way we want to be treated. And maybe it’s the fact that DEI work equips the

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former Secretary of Defense Donald Rumsfeld and former President George W. Bush “war criminals” in a legal filing. “It seems so out of character for you,” Cornyn said. Jackson said she didn’t remember “that particular reference,” but that she would look into it. After a break, Durbin noted—and Jackson confirmed—that she had filed petitions that made a variety of claims arguing for the release of Guantanamo detainees, including that the treatment of the detainees constituted torture and violated federal law. She never referred to anyone as a war criminal, but she did argue that torture amounted to a war crime under the law and that the federal government, including Bush and Rumsfeld, was ultimately responsible. She bristled at questions from South Carolina Sen. Lindsey Graham, who voted for her confirmation as an appeals court judge last year but has openly expressed his frustration after President Joe Biden picked her over a South Carolina judge. Graham asked her about her religion, and how often she goes to church, in angry comments about what he said was unfair criticism of Justice Amy Coney Barrett’s Catholicism ahead of her 2020 confirmation. Jackson—who thanked God in her opening statement and said that her faith “sustains me at this moment”— responded that she is a Protestant. But she said she is reluctant to talk about her faith in detail because “I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.” Democrats have been full of praise

of the provisions prohibiting false, misleading, or deceptive communications about a lawyer’s services and nicknames and monikers that imply an ability to obtain results in a matter. Two weeks later, Hawkins filed his lawsuit. On Oct. 11, 2021, the same day it re-filed formal charges against Hawkins (it had dismissed charges relating to the 2017 investigation with prejudice and the 2018 and 2019 investigations without prejudice), the ODC filed a motion to dismiss. Pursuant to the Federal Rules of Civil Procedure, the ODC argued, the court should enter judgment on the pleadings and dismiss the case with prejudice based on the Younger abstention doctrine. According to Younger, state lawyer disciplinary proceedings can be subject to abstention when they are akin to a criminal proceeding, as Childs found that they were in Hawkins’ case. In South Carolina, lawyer disciplinary proceedings begin with a screening, followed by preliminary and full investigations, the filing of formal charges, and a review by the state’s Supreme Court. “Accordingly, South Carolina lawyer disciplinary proceedings are

judicial in nature and subject to Younger abstention,” Childs wrote. Childs found further evidence in favor of abstention, noting that regulating the conduct of attorneys implicates a vital state interest and that the plaintiffs can raise their constitutional claims in the disciplinary hearing and on appeal to the states’ Supreme Court. “The court has no reason to believe that the members of the Commission, many of whom are lawyers, or the justices of the South Carolina Supreme Court would refuse to consider a claim that the rules they are enforcing violate federal constitutional guarantees,” Childs wrote. Angus Macaulay, Brittany Clark, Susan McWilliams, and Sara Svedberg of Nexsen Pruet in Columbia and Assistant Deputy Attorney General Harley Kirkland represented the defendants. Svedberg referred Lawyers Weekly to the judicial branch’s public information office, and the Office of the Attorney General declined to comment. Though Hawkins’ claims were dismissed, his attorney, Robert Dodson of Columbia, said that he be-

lieves district court is the best place to litigate “the most fundamental right” guaranteed by the Constitution, and that the ODC’s dismissal of its “most significant claim” is a significant victory. “ODC had previously alleged that HawkLaw could not use ‘the Hawk’ in its advertisements, despite the fact that it is part of Mr. Hawkins’ name and despite the fact that their office had previously agreed that the use of the Hawk in the name was indeed appropriate,” Dodson said. “They have abandoned that claim.” Dodson said that he and his clients welcome the opportunity to defend against the two remaining claims to be litigated in the state system, and that they are considering all legal options. “Including an appeal to the Fourth Circuit Court of Appeals and beyond, if necessary,” Dodson said. The 11-page decision is Hawkins v. South Carolina Commission on Lawyer Conduct (Lawyers Weekly No. 002-005-22). The full text of the opinion is available online at sclawyersweekly.com.

legal profession to serve the public and our clients much better. Just as genetic diversity increases a population’s health, diversity of every kind makes our law firms stronger. If this letter doesn’t convince you of the value of DEI work, you might try something else: participating in your firm’s DEI committee. There’s

no better way to see that DEI is more than a catchphrase, that ignoring issues like race and gender only perpetuates harm, and that firms can advance diversity, equity, and inclusion without engaging in discrimination. Is every DEI initiative perfect? Of course not. No human endeavor

is. But DEI work is slowly, steadily improving our profession. And that effort could use your input, too. Trent Collier is a co-chair of the appellate group at Collins Einhorn Farrell PC in Southfield, Michigan. His practice focuses on civil appeals, commercial litigation and professional-liability defense.

for Biden’s Supreme Court nominee, noting that she would not only be the first Black woman but also the first public defender on the court, and first with experience representing indigent criminal defendants since Justice Thurgood Marshall. Judiciary Committee Chairman Dick Durbin said that to be first, “often, you have to be the best, in some ways the bravest.” Biden chose Jackson in February, fulfilling a campaign pledge to nominate a Black woman to the Supreme Court for the first time in American history. She would take the seat of Justice Stephen Breyer, who announced in January that he would retire after 28 years on the court. Sen. Cory Booker, D-N.J., spoke emotionally about the “joy” he felt about her historic nomination and acknowledged her family’s pride. Jackson would be the third Black justice, after Marshall and Clarence Thomas, and the sixth woman. Booker, who is Black, said the white men who have sat on the Supreme Court for two centuries were “extraordinary patriots who helped shape this country” but that many people could have never dreamed of sitting on the court. Jackson, who grew up in Miami, noted that she did not have to attend racially segregated public schools like her own parents did, “and the fact that we had come that far was to me a testament to the hope and the promise of this country, the greatness of America that in one generation we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court of the United States.”

On Monday, Democrats on the Judiciary panel sought to preemptively rebut Republican criticism of Jackson’s record on criminal matters as a judge, as a federal public defender and a member of the U.S. Sentencing Commission, an independent agency created by Congress to reduce disparity in federal prison sentences. Jackson “is not anti-law enforcement” and is not “soft on crime,” Sen. Patrick Leahy, D-Vt., said, noting that her support from some national police organizations. ”Judge Jackson is no judicial activist.” Questions about her sentences for child pornographers first came from Sen. Josh Hawley, R-Mo., who said in his opening statement that his research showed that she had a pattern of issuing lower sentences in child pornography cases, repeating comments he wrote in a Twitter thread last week. The Republican National Committee echoed his claims in blast messages to supporters. The White House, along with several Democrats at the hearing, has rejected Hawley’s criticism as “toxic and weakly presented misinformation.” Sentencing expert Douglas Berman, an Ohio State law professor, wrote on his blog that Jackson’s record shows she is skeptical of the range of prison terms recommended for child pornography cases, “but so too were prosecutors in the majority of her cases and so too are district judges nationwide.” Hawley is one of several committee Republicans, along with Ted Cruz of Texas and Tom Cotton of Arkansas, who are potential 2024 presidential candidates, and their aspirations may collide with other Republicans who would prefer not to pursue a scorched-earth approach to

Jackson’s nomination. The White House said Tuesday that Biden had watched part of the hearings and was proud of Jackson’s “grace and dignity.” The president was struck by how “she swiftly dismantled conspiracy theories put forward in bad faith,” said White House deputy press secretary Chris Meagher.

Fight, not flight

Firing-squad executions get the green light in South Carolina COLUMBIA (AP) — South Carolina has given the green light to firingsquad executions, a method codified into state law last year after a decadelong pause in carrying out death sentences because of the state’s inability to procure lethal injection drugs. The state Corrections Department said on March 18 that renovations have been completed on the death chamber in Columbia and that the agency had notified Attorney General Alan Wilson that it was able to carry out a firing-squad execution. Lawmakers set about tweaking state law to get around the lethal injection drug situation. Legislation that went into effect in May made the electric chair the state’s primary means of execution while giving inmates the option of choosing death by firing squad or lethal injection, if those methods are available. During South Carolina’s lengthy debate, Democratic state Sen. Dick Harpootlian—a prosecutor-turnedcriminal-defense lawyer—introduced S e e P a g e 24 ►

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TOP VERDICTS & SETTLEMENTS OF 2021

1.

Jury awards $13.1M to man hurt by defective repaving project

A Richland County jury has awarded more than $13.1 million to a man who was badly injured in a fatal car crash caused by a defective highway repaving project. Five students at Claflin University were traveling along Interstate 77 in October 2016 when the driver encountered a four-and-a-half-inch drop-off while trying to get back onto the highway from the shoulder. That caused the driver to lose control of the car, which became airborne and landed on top of another vehicle in the opposing lanes. Four of the car occupants were killed, and the sole survivor, Gernardo Cato, was left with traumatic brain injuries and a broken clavicle. Cato spent 19 days in the hospital after being airlifted from the scene. William Applegate, David Lail, and Reynolds Blankenship of Yarborough Applegate in Charleston and Andrew Savage of Savage Law in Charleston represented Cato in a lawsuit against the South Carolina Department of Transportation and a pair of contractors that were working on a road rehabilitation project along that stretch of the highway. Cato contended that the edge of the pavement should have been “backfilled” to level it out in order to prevent such a crash from happening. Lail said no signs warned of any pavement problems and that any drop-off of more than two inches is considered hazardous. “I think people understood the severity and we were able to show that this was an issue that the government and road contractors have been dealing with since the 50s,” Applegate said. “It was a wellestablished issue.” In a verdict handed down on June 14, Richland County jurors determined that the general contractor, Archer Western Construction, was 60 percent at fault for the accident, and the SCDOT was liable for the remainder. The other contractor, Sloan Construction Company, which laid the fresh asphalt, was found not liable since the backfilling had been the job of Archer Western. Under state law, Archer Western will be responsible for the entire judgment because it was found to be more than 50 percent at fault, the attorneys said. The award included more than $200,000 for medical expenses, more than $500,000 for future care and nearly $1.4 million for loss of earning capacity. The jury awarded $7 million in non-economic damages and $4 million in punitive damages. The trial lasted for 10 days, and jurors deliberated for about 3 ½ hours before returning their verdict, the attorneys said. Applegate said that the damages Cato suffered were considerable and jurors understood that. “In 2021, the information related to severe traumatic brain injury and the effects it has on people has increased dramatically so I think, in this world, it is an easier place to demonstrate the impacts of brain injury,” Applegate said. The matter had been consolidated with petitions from other plaintiffs representing the estates of the four deceased students, but Applegate said the other plaintiffs resolved their issues separately early in the dispute. Dennis Lovell and Christina Perrin of Copeland, Stair, Kingma & Lovell represented Archer Western. Rick Pierce of Howser, Newman & Besley in Columbia represented the SCDOT. John Lay and David Rheney of Gallivan White & Boyd in Columbia and Greenville, respectively, and Clarke DuBose of Haynsworth Sinkler Boyd in Columbia represented Sloan. None of the defense attorneys provided comment on the jury’s verdict, but Cato’s attorneys said that both liability and damages were contested at trial, and numerous defenses were raised. VERDICT REPORT – ROADWAY DEFECT

Amount: $13,100,559.90 Injuries alleged: Traumatic brain injury, broken clavicle Case name: Gernardo Cato v. Archer Western Construction Company; SCDOT; Reeves Construction

Company dba Sloan Construction Company Court: Richland County Circuit Court Case No.: 2017-CP-40-4432 Judge: Robert E. Hood Date of verdict: June 14, 2021 Most helpful experts: Peter Parsonson of Atlanta (roadway safety), Kendrick E. Richardson of Charleston (accident reconstruction), Deborah L. Caskey of Charlotte (vocational rehabilitation), and Tricia Yount of Charleston (economist) Insurance carriers: Berkshire Hathaway (for Archer Western) and Insurance Reserve Fund (for SCDOT) Attorneys for plaintiff: William Applegate, David Lail, and Reynolds Blankenship of Yarborough Applegate in Charleston and Andrew Savage of Savage Law in Charleston Attorneys for defendants: Gary Lovell and Christina Perrin of Copeland, Stair, Kingma & Lovell in Charleston for Archer Western; Rick Pierce of Howser, Newman & Besley in Columbia for the SCDOT; and John Lay and David Rheney of Gallivan, White & Boyd in Columbia and Greenville, respectively, and Clarke DuBois of Haynsworth Sinkler Boyd in Columbia for Sloan Construction

2

(tie). Mom of man who died custody settles suit for $10M

The mother of a mentally ill man who died in the Charleston County jail has reached a $10 million settlement with the county, the county sheriff’s office, and the city of North Charleston, her attorneys report. “From everything we’ve researched, I think it is the largest civil rights settlement or judgment in the history of South Carolina,” said Gary Christmas of Christmas Injury Lawyers in North Charleston. Jamal Sutherland, who had schizophrenia and bipolar disorder, was arrested by North Charleston police during an altercation at a local mental health facility where Sutherland was staying. He was taken to the Charleston County jail over the incident, which Christmas described as a third-degree simple assault between patients. Christmas said that Sutherland informed the authorities of his illness and his need for medication, but police didn’t put him in the medical unit and instead housed him in the behavior management unit, an area for uncooperative or violent prisoners. “You can’t just lock people up for being mentally ill—even when they are alleged to have committed a 30-day misdemeanor simple assault charge,” said attorney Mark Peper of Peper Law in Charleston, who also represented the estate. “There are many better alternatives to get them the help they need then to just simply drop them off at a detention center.” Peper said that the authorities performed what’s known as a cell extraction—the forcible removal of a prisoner from a cell by a tactical team—while transporting Sutherland to court. Peper contended that the operation was completely unnecessary since Sutherland was scheduled to appear in bond court, which he had a constitutional right to waive. “From the time he goes into the jail until the time of his death was just an absolute disaster,” Peper said. The attorneys said that during the transfer, authorities deployed their stun guns ten times in a one-minute period and connected six times. Sutherland was also pepper-sprayed, and his head was placed in a spit hood, a type of loose mask intended to prevent a prisoner from spitting or biting, Christmas said. Christmas said the coroner initially ruled the cause of death unknown, but later amended it to homicide, and that the ultimate cause was probably cardiac arrest brought on by a confluence of different factors, which may also have included pressure on his back while being held down. Judge Bentley D. Price approved the settlement on June 18. The order states that $9 million was allocated for the survival action and $1 million for the

wrongful death claim. Both attorneys said that future litigation against other private parties in the case was still under consideration. According to media reports, the two officers involved in the incident, which received national attention, were terminated. It was unclear whether any criminal charges would be pursued as the investigation was still ongoing. Video of the incident from a body-worn camera, available online, shows officers using their stun guns and attempting to cuff the 31-year-old Sutherland while he was face down on the floor of a cramped cell before removing him for placement in a restraint chair, at which point they appeared to discover that he was no longer moving. Peper said that the recording may have encouraged a settlement. “I think the exposure to the defendants really started to hit home once they saw the video and had a better understanding of the liability that we believed would be placed not only on the individual officers but the sheriff’s office as a whole and, more importantly, once they understood the risk to the county of having to satisfy a personal judgment against the named defendants,” he said. Peper said he hopes the settlement will signal the importance of taking seriously the needs of the mentally ill. “I hope that the message is loud and clear that we need to do a better job of how we handle mental health issues in this country,” he said. The attorneys listed Natalie Ham as representing the county and Amanda Dudgeon of Chandler & Dudgeon in Charleston as representing the sheriff’s office. Calls to both Dudgeon and the county line for media inquiries weren’t returned by press time. Sandy Senn of Senn Legal in Charleston, which represented the City of North Charleston, deferred comment to the other defense attorneys in the case. SETTLEMENT REPORT – CIVIL RIGHTS

Amount: $10 million Injuries alleged: Death Case name: Amy Sutherland v. Charleston County; Charleston County Sheriff’s Office; City of North Charleston Court: Berkeley County Case No.: 2021-CP-10-2812 Judge: Bentley D. Price Date of settlement: June 18, 2021 Attorneys for plaintiff: Gary Christmas of Christmas Injury Lawyers in North Charleston and Mark Peper of Peper Law Firm in Charleston Attorneys for defendants: Natalie Ham for Charleston County, Amanda Dudgeon of Chandler & Dudgeon in Charleston for the Charleston County Sheriff’s Office and Sandy Senn of Senn Legal in Charleston for City of North Charleston

2

(tie). Jury awards $10M to woman injured in Walmart

A Florence County jury has awarded $10 million in damages to a woman who lost most of her leg after stepping on a rusty nail while shopping at Walmart. Roy Willey IV, Lane Jeffries, and Eric Poulin of Anastopoulo Law Firm in Charleston represented April Jones, who lost her limb through a series of amputations performed in an effort to fight an infection that she told jurors she acquired from a puncture wound she sustained during a June 2015 visit to one of the company’s locations in Florence. According to her complaint, Jones was passing by some pallets that were on the shop floor when she heard a scraping sound under her shoe and began to feel pain in her right foot. She looked through her right shoe and found that a rusty nail had pierced through both shoe and foot, creating a wound. Jones went to the hospital, where she had to have a hole cut in her foot to treat the wound. Surgeons initially removed Jones’s toe, followed by the front of her foot

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and, ultimately, her right leg up to just above her knee. Willey said that the key to Jones’s case was the contention that the store had failed to do regular safety sweeps that Walmart’s internal policies indicate are supposed to take place every one to two hours. “There was no evidence they had occurred,” Willey said. Willey said that Walmart claimed that the sweeps had taken place and questioned whether the injury had even occurred in their store. “They said they didn’t think the nail came from their store and that, if it did come from their store, they had no way of knowing that it was there,” he noted. He said that Walmart also disputed causation since Jones had additional health concerns, including diabetes, renal failure, and vascular issues, which might have worsened the gangrenous infection. Willey said there was video evidence showing that Jones tried to remove something from her shoe during the visit, and Jones introduced testimony from her treating surgeon to link the incident to the amputations. “People are entitled to be compensated even if they have preexisting injuries as long as the ultimate damage is a result of that first event,” Willey said. He did not specify a figure in closing arguments but said that neither the nature nor size of the verdict surprised him. “We didn’t give the jury a number,” Willey said. “We gave the jury a methodology in terms of how to think about the number and just asked them to use their common sense and good judgement.” Jurors deliberated for less than two hours before returning their verdict on Nov. 12, the firm said. Regina Hollins Lewis, Nashiba Boyd, and Robert Blain of Gaffney Lewis in Columbia represented Walmart. They deferred comment to Walmart, which issued a statement saying that it did not believe that the verdict was supported by the evidence. Court documents show that Walmart has filed motions for a new trial and for judgment notwithstanding the verdict. Jones also sued the manager of the store where the incident took place. The jury returned a verdict in favor of the manager, awarding no damages. VERDICT REPORT – PREMISES LIABILITY

Amount: $10 million Injuries alleged: Puncture wound, three amputations leading to loss of leg up to just above the knee Case name: April Jones v. Tim Ringer; Wal-Mart Stores, Inc.; and Wal-Mart Stores East. L.P. Court: Florence County Circuit Court Case No.: 2017-CP-21-01375 Judge: Michael Nettles Date of verdict: Nov. 12, 2021 Highest offer: $75,000 Attorneys for plaintiff: Roy Willey IV, Lane Jeffries, and Eric Poulin of Anastopoulo Law Firm in Charleston Attorneys for defendants: Regina Hollins Lewis, Nashiba Boyd, and Robert Blain of Gaffney Lewis in Columbia

4.

Roof worker who fell through skylight settles claims for $8.5M

A roofer who was severely injured after he stepped on fragile skylight glass and fell 25 feet has settled a claim against the building’s owner for $6 million and settled a worker’s compensation claim for $2.5 million, his attorneys report. Jason Reynolds and Stephen Samuels of Samuels Reynolds Law Firm in Columbia report that their client, Jesse Monts, was sealing a leaky roof on a commercial building in Columbia in 2016 when he inadvertently stepped on a sky light. The skylight’s glass broke, and Monts plunged 25 feet onto a concrete floor below. He suffered a permanent brain injury resulting in partial paralysis and a severe loss of cognitive function, multiple rib fractures, a punctured left lung, a clavicle fracture, a liver laceration,

deep vein thrombosis, and an acute kidney injury. “It’s amazing that he’s alive,” Reynolds said. Monts’s mother, Cheryl Ashley, sued the building’s owner, contending that it knew that the roof was in “rotten and deteriorating condition” and that the skylights had no guards around them. Reynolds said that the glass covering the skylights was 30 years old. By the time the suit was filed, Monts had incurred $2.7 million in medical bills, and future medical care will cost up to $383,000 each year. Monts, who had been living in a government facility, now has his own apartment at a private facility but he requires 24-hour care, Reynolds said. The building’s owner, Commercial Properties, settled the premises liability suit for $6 million on Feb 8. Monts’ employer, Brandon Clamp, doing business as Midland Carolina Door Sales, was uninsured, Reynolds said. Monts settled a claim with the South Carolina Uninsured Employers Fund for $2.5 million in October 2020. The attorney for the Commercial Properties declined to comment on the settlement, and Reynolds requested that his name be withheld. Timothy Killen of Holder Padgett Littlejohn + Prickett in Mt. Pleasant and Michael Burkett of Willson, Jones, Carter & Baxley in Columbia represented the South Carolina Uninsured Employers Fund. They could not be reached for comment. SETTLEMENT REPORT – PREMISES LIABILITY

Amount: $6 million Injuries alleged: Permanent brain injury, multiple rib fractures, punctured left lung, clavicle fracture, liver laceration, deep vein thrombosis and acute kidney injury, Case name: Cheryl Ashley as the Natural Parent and Guardian of Jesse Monts v. Julian Wilson, Edward Larocque, Jamin McCallum, individually, and Commercial Properties of SC Court: Richland County Circuit Court Case No.: 2019-CP-40-06474 Date of settlement: Feb. 8, 2021 Most helpful experts: Brian Durig of Summit Engineering in Columbia (engineering), Sarah Lustig of Mt. Pleasant (life care planning), and Oliver Wood of Columbia (economist) Insurance carrier: Southern Trust Attorneys for plaintiff: Jason Reynolds and Stephen Samuels of Samuels Reynolds Law Firm in Columbia Attorney for defendant: Withheld

sented the estate. Due to a confidentiality agreement, many details of the case, including the identities of the parties and the defense counsel and the date and location of the crash, were withheld. Lail said that the case concerned a crash in which the drunk driver first became intoxicated at a restaurant before purchasing additional alcohol at a gas station. Lail obtained access to a recording of a jailhouse phone call between the drunk driver and his girlfriend which allowed him to identify the restaurant. Uncovering the name and location of the gas station took more work, however. “Without knowing the identity of the gas station where the second alcohol purchase was made much closer in time to the crash, I knew I would have a problem with the restaurant blaming the crash on the later gas station alcohol purchase giving them a strong ‘empty chair’ defense,” Lail said. Lail ultimately performed, in essence, a “photo lineup of gas stations” by showing the driver a photo of each one in the area so that he could identify the one where he made his purchase. That was not the end of the challenges faced by the estate, however. No surveillance video was available at either the restaurant or the gas station, and no receipt was available for the latter. “The restaurant argued that nearly all the alcohol that was allegedly served would have been almost totally eliminated from the driver’s body at the time of the crash which happened more than three hours after he left the establishment,” Lail said. The gas station, meanwhile, contended that the driver was an alcoholic and could have hidden any signs of intoxication. The estate, however, countered that there was evidence that gas station employees took no action to establish whether the customer was drunk, and the restaurant should have known of his intoxication. “Depositions of restaurant employees confirmed that the alcohol service was in violation of responsible alcohol service standards, and a forensic examination of prior point of sale data showed a pattern of unsafe alcohol service at the establishment,” Lail said. Lail said that by the time he received the case, a settlement had already been reached with the drunk driver and the owner of the vehicle he’d been driving. The settlement, which included a full release, eliminated the prospect of pure joint and several liability and resulted in a set-off of more than $1 million. The matter was mediated twice and settled in October, shortly before it was set to go to trial. Due to the confidentiality agreement, the attorneys could not say how much of the settlement was provided by the restaurant and how much was provided by the gas station.

SETTLEMENT REPORT – WORKERS’ COMPENSATION

Amount: $2.5 million Injuries alleged: Permanent brain injury, multiple rib fractures, punctured left lung, clavicle fracture, liver laceration, deep vein thrombosis and acute kidney injury Case name: Jesse Monts v. Brandon Clamp d/b/a Mid Carolina Door Sales and South Carolina Uninsured Employers Fund Venue: South Carolina Workers’ Compensation Commission Case number: 1623411 Date of settlement: October 2020 Attorneys for plaintiff: Jason Reynolds and Stephen Samuels of Samuels Reynolds Law Firm in Columbia Attorneys for defendant: Timothy Killen of Holder Padgett Littlejohn + Prickett in Mount Pleasant and Michael Burkett of Willson, Jones, Carter & Baxley in Columbia

5.

$7.5M settlement reached in dram shop case

The surviving parent of a woman who was killed when a drunk driver who was traveling at over 100 mph crashed into her while she was pulling into her driveway has reached a $7.5 million dram shop settlement with a chain restaurant and a gas station that both sold alcohol to the drunk driver. David Lail of Yarborough Applegate in Charleston and Douglas Jennings of Bennettsville repre-

SETTLEMENT REPORT – DRAM SHOP

Amount: $7.5 million Injuries alleged: Death Case name: Confidential Court: Confidential Date of settlement: October 2021 Attorneys for plaintiff: David Lail of Yarborough Applegate in Charleston and Douglas Jennings of Bennettsville Attorneys for defendants: Confidential

6.

Worker crushed by rail car settles claim for $6M

A railroad worker who was crushed by a rail car has settled a pre-lawsuit claim against the railway owner for $6 million, his attorneys report. David Yarborough and Perry Buckner Jr. of Yarborough Applegate in Charleston report that their client, whose name was withheld, was working to secure an air hose to a brake line underneath a rail car when the car, which was on a jack but not on a jack stand, shifted and pinned him to the ground. The client was knocked unconscious and suffered injuries including a brain hemorrhage, scalp fracture, multiple rib fractures, a hemopneumothorax (air and blood in the chest cavity) scalp laceration, cervical fractures and a near-amputation of his left ear. Railroad employees aren’t covered under workers’ compensation, but are covered by the Federal Employers’ Liability Act. The client alleged that the

8 / TOP V&S 2021 railway’s owner had a pattern of putting rail car workers in its repair division in dangerous conditions that violated industry and federal railroad safety regulations, Yarborough said. The railway permitted its workers to work under rail cars without jack stands and permitted them to work under rail cars that were loaded with cargo. “The workers had been complaining they didn’t want to work on loaded cars because of how heavy they were,” Yarborough said. “They were worried that someone like this might happen, but their complaints went unacknowledged until this happened. Our client loved working for the railroad. He wants to be able to go back to work for the railroad, and he did not want to sue them.” The railway proposed mediation before a lawsuit was filed. “The good news for him was that they loved him also,” Yarborough said. “He was their model employee prior to being hurt.” The client has made progress in his recovery, but has not returned to work, Yarborough said. SETTLEMENT REPORT – FEDERAL EMPLOYERS LIABILITY ACT

Amount: $6 million Case name: Claim settled before lawsuit was filed Injuries alleged: Brain hemorrhage, scalp fracture, multiple rib fractures, hemopneumothorax (air and blood in the chest cavity), scalp laceration, cervical fractures, and near-amputation of left ear Case name: Claim settled before lawsuit was filed Date of settlement: Feb. 24, 2021 Attorneys for plaintiff: David Yarborough and Perry Buckner Jr. of Yarborough Applegate in Charleston Attorneys for defendant: Withheld

7.

Newlyweds hurt by tired trucker settle claim for $5.8M

A newlywed couple who were severely injured after a motorcycle crash has settled a claim against the at-fault driver and his employer for $5.8 million, their attorneys report. John White Jr., Wes Kissinger, and Ryan McCarty of Harrison White in Spartanburg report that their clients, whose names were withheld by the attorneys, were approaching an interchange on I-85 in Anderson County one night in August 2017 when the driver of a delivery truck owned by Gammill Inc. made a left turn in front of them, and they slammed into the truck. The couple said that the driver had a clear line of sight but failed to allow them to pass before turning into their paths. The clients alleged that the truck driver shouldn’t have been on the road at the time, as the truck’s logs indicated that he’d stopped for dinner in Georgia and should have rested there for the night. Instead, the 63-year-old driver soldiered on, trying to make it to Anderson County. When the crash occurred, he was trying to pull into a hotel parking lot, but instead wound up trying to pull into the parking lot of the fast-food restaurant next to the hotel. The hotel turned out not to have any vacancies, and after police investigated the wreck, he ended up driving for another 30 minutes before finally stopping at another hotel, McCarty said. The wife’s injuries included an injury to the brachial plexus--the network of nerves running from the spinal cord to the shoulder, arm, and hand-with a nerve root avulsion, where a nerve root was separated from the spinal cord. She also suffered a left wrist fracture, spine fracture, hematoma, artery injury, and epidural hemorrhage. The husband suffered injuries including respiratory failure, a lip laceration, injured vertebrae, spleen injuries, a wrist fracture, and artery and cardiac injuries. He underwent multiple surgeries and had permanent medical hardware placed in his body. The plaintiffs were hospitalized for 11 days before they were transferred to Roger C. Peace Rehabilitation Hospital in Greenville, where they remained for several weeks, McCarty said. McCarty said that the couple will suffer the ramifications of the injuries for the rest of their lives. In particular, the wife has a very limited range of motion in her right arm and hand and has had to learn to eat and write with her left hand.

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“She worked in the health care field, and because of her injuries, she will not be able to participate in patient care in the future,” McCarty said. “She has had to completely adapt her life to using one hand and arm for her average daily activities.” Jeffrey Silverberg and George Hanna IV of Howser, Newman, & Besley in Columbia represented the defendants. They could not be reached for comment about the settlement, which was agreed to on Jan. 25. SETTLEMENT REPORT – MOTOR VEHICLE WRECK

Amount: $5.8 million Injuries alleged: Brachial plexus injury with nerve root avulsion, wrist fracture, spine fracture, hematoma, artery injury, and epidural hemorrhage; hypoxic respiratory failure, lip laceration, injured vertebrae, spleen injuries, wrist fracture, and artery and cardiac injuries Case name: Withheld Court: U.S. District Court for the District of South Carolina Date of settlement: Jan. 25, 2021 Insurance carrier: Continental American Insurance Co. Attorneys for plaintiff: John White Jr., Wes Kissinger, and Ryan McCarty of Harrison White in Spartanburg Attorneys for defendants: Jeffrey Silverberg and George Hanna IV of Howser, Newman, & Besley in Columbia

8.

Bars to pay $5.5M in dram shop settlements

Two people who were injured when their vehicle was hit head-on by a heavily intoxicated late-night driver who was going the wrong way on an interstate have agreed to $5.5 million in confidential settlements with two bars that served the drunk driver, the plaintiffs’ attorneys report. David Yarborough and Liam Duffy of Yarborough Applegate in Charleston and Shelly Leeke, Chip Alexander, and Kassandra Garan of Shelly Leeke Law Firm in North Charleston report that the driver, who was not identified due to a confidentiality agreement, celebrated her 29th birthday with friends and a bottle of vodka before consuming more drinks at one area bar and then traveling to downtown Charleston for drinks at a second establishment. She got onto I-26 around 3 a.m., where she crashed into the attorneys’ clients. Yarborough said that the impaired driver—a 4’9” individual weighing under 100 pounds—was “really drunk,” to the point that she was swaying, based on the account of a witness, and her blood alcohol level was two and half times the legal limit when she was tested an hour after the crash. Yarborough said that both vehicles were traveling about 50 mph when the impact occurred. Both plaintiffs sustained fractures to the femur and tibia as well as concussions and broken toes. The passenger also sustained a dislocated shoulder and lacerated liver. The downtown bar’s insurance paid about $1 million into the settlement, though Duffy said part of that went to a passenger in the drunk driver’s car, whose matter remains ongoing. Most of the total was borne by the first tavern, which did not appear in court, apparently due to an error. “Their insurance broker failed to transmit the lawsuit papers to their insurer. Because of that, they were held in default by a circuit court judge here in South Carolina,” Duffy said. “What that means is that liability was established against them, and it was just a question of damages at that point.” He said that the bar made a motion to set aside the default, but it was denied. “The message that we hope is getting through is that responsible alcohol service by commercial establishments, bars, and restaurants is not something that should just be given lip service, because if it is, which is often the case, people are going to get hurt,” Duffy said. “Our roadways are endangered by that. This is a situation where someone should have never been served alcohol and she unfortunately got behind the wheel of a car after being served a copious amount.” The names of the attorneys for the defendants

were also withheld pursuant to a confidentiality agreement. SETTLEMENT REPORT – DRAM SHOP

Amount: $5.5 million Injuries alleged: Fractured femurs, tibias, and toes; concussions, lacerated liver, dislocated shoulder Case name: Confidential Venue: Confidential Date of settlement: Confidential (but case settled in 2021) Special damages: $324,622.80 in medical expenses between two people Attorneys for plaintiff: David Yarborough and Liam Duffy of Yarborough Applegate in Charleston and Shelly Leeke, Chip Alexander, and Kassandra Garan of Shelly Leeke Law Firm in North Charleston Attorneys for defendants: Withheld

9.

Victims of deadly carcrash settle dram shop claim for $5.4M

Two bars that overserved a patron who caused a fatal car crash have agreed to pay almost $5.4 million to the victims of the crash, the victims’ attorneys report. Chuck Dukes of RPWB in Mount Pleasant, Chris Moore and Terry Richardson of Richardson Thomas in Columbia, and John Moylan and Lucy Dinkins of Wyche Law Firm in Columbia report that they negotiated the confidential settlement on behalf of the victims of a January 2019 car crash that killed one person and left three others seriously injured. The attorneys report that their clients were in downtown Charleston when their vehicle was broadsided by a drunk driver who had run a red light at the corner of Columbus Street and Meeting Street. One passenger, William Kappel, was killed instantly. His wife, Laura Kappel, suffered contusions and severe mental and emotional trauma and distress from watching her husband perish, Dukes said. Joseph Murray, who was driving, had to be extracted from the vehicle and suffered fractured ribs, a lacerated liver, a bruised lung, and a concussion. The other passenger, Jacqueline Zink, suffered blunt force trauma, several broken ribs, a fracture of her right hip, nerve damage to her left knee, muscle sprains, and contusions. Crash data revealed that the drunk driver, Cade Garris, had reached 74 mph in a 35 mph zone before he ran the red light. Receipts showed that he had been drinking at two downtown bars, and he had a BAC of more than twice the legal limit, Dukes said. Garris was underinsured and his case was settled for $50,000. The bars paid the rest. One of the bars will donate $25,000 to a foundation started in honor of William Kappel, implement annual safeservice alcohol training for its staff, and lengthen its surveillance footage retention policy, Dukes said. Zink and the Kappels had traveled to Charleston from Chicago to visit Murray, who had recently moved to Charleston from Chicago. The lawsuit was settled in U.S. District Court for the District of South Carolina based on diversity jurisdiction, and U.S. District Judge David C. Norton approved the settlement on Feb. 18. William and Laura Kappel had been married for a year and had just bought their first house together, Dukes said. “It was an extremely heartbreaking case, as you can imagine,” Dukes said. “They had been out for several hours and had a designated driver. They did everything right and in a split second, it was all tragedy.” Of the settlement funds, $4.85 million will go to Kappel and her husband’s estate, $265,000 will go to Zink, and $285,000 will go to Murray. Moylan and Dinkins represented Murray. Due to a confidentiality agreement, the names of the bars and their attorneys were unavailable. Trey Nicolette of Clawson and Staubes in Charleston, who represented Garris, declined to comment on the settlement. SETTLEMENT REPORT – DRAM SHOP

Amount: $5.4 million Injuries alleged: Death; contusions and severe

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 28, 2022

mental and emotional trauma and distress; fractured ribs, lacerated liver, bruised lung and concussion; blunt force trauma, broken ribs, right hip fracture, nerve damage muscle sprains, and contusions. Case name: Withheld Court: U.S. District Court for the District of South Carolina Date of settlement: Feb. 18, 2021 Attorneys for plaintiff: Chuck Dukes of RPWB in Mount Pleasant, Chris Moore and Terry Richardson of Richardson Thomas in Columbia, and John Moylan and Lucy Dinkins of Wyche Law Firm in Columbia Attorneys for defendants: Trey Nicolette of Clawson and Staubes in Charleston for the driver; the names of the defense counsel for the dram shop defendants were withheld

10.

Driver hit by dump truck settles suit for $5M

A woman who was injured after her SUV was struck by a dump truck that had run a stop light has agreed to settle her case for $5 million, her attorneys report. Kenneth Berger of his eponymous law firm in Columbia and David Williams of Williams & Williams in Orangeburg said that their client, whose identity was withheld pursuant to a confidentiality agreement, suffered a concussion, a scalp laceration that required 11 staples, and other injuries that continue to negatively affect her. “All concussive symptoms resolved, but ongoing neck pain caused frequent headaches,” Berger wrote in an email to Lawyers Weekly. “The pain also radiated into her shoulder, making everyday demands most mothers face more difficult. Persistent wrist pain likewise limited what the Plaintiff could do for her children and live-in family over the past two-plus years.” Berger said that the at-fault driver refused a post-crash drug screening and was later fired. Berger said that the driver’s company’s vice president equated the refusal to guilt, and its safety director said that he refused the screening because he likely couldn’t pass it. The driver had a history of drug convictions and was arrested for drug distribution shortly after the crash, Berger said. The driver denied any wrongdoing related to the crash, but he had used cardboard and visors to block two in-cab cameras, and the safety director admitted that he’d likely blocked the cameras because he was up to no good, Berger said. Berger said that while the punitive damages case focused mainly on the driver’s drug use and dealing, his employer shares the blame by sending a “repeat drug offender” with outstanding, out-of-state warrants to run trucks through Orangeburg County. “Unsurprisingly, the operations head, truck driver, vice-president, and owner were all related,” Berger said. “If they had shown the same care for the people of Orangeburg County as they did for each other, this crash would never happen, and an innocent mother would not be working to overcome lifelong impairment.” SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $5 million Injuries alleged: Concussion, laceration, and neck, shoulder, and wrist pain Case name: Withheld Court: Withheld Date of settlement: Dec. 16, 2021 Special damages: $33,668.79 Attorneys for plaintiff: Kenneth Berger of Columbia and David Williams of Williams & Williams in Orangeburg Attorneys for defendants: Withheld

11.

Injured motorcyclist settles suit for $4.45M

A motorcyclist who was injured after crashing into a construction company’s pickup truck has

settled his negligence claims for $4.45 million, the plaintiff’s attorneys report. Kenneth Berger and Brad Lanford of the Law Office of Kenneth E. Berger in Columbia report that in 2019 their client ran into the rear of the truck when the driver turned left in front of him, apparently oblivious to oncoming traffic. Many of the details of the case, including the names of the parties and the identities of the defense counsel, were withheld due to a confidentiality agreement. The plaintiff suffered a broken clavicle, femur, tibia, and fibula, but avoided even further injury by taking evasive actions, Berger said. The plaintiff was taken by helicopter to the hospital and underwent intramedullary nailing—a procedure to repair and stabilize broken bones—and in-patient rehabilitation. The patient later required two more surgeries. Berger said that the at-fault driver looked in the plaintiff’s direction before turning, but the driver had undergone surgery on his left eye and had a history of laser treatments and proliferative diabetic retinopathy, a progressive condition that had been largely untreated for almost two years before the crash. The plaintiff filed suit in Sumter County Circuit Court. Berger said that Dr. Ilya Leyngold, an ophthalmologist at Duke University, opined that the atfault driver suffered visual impairments that likely contributed to his not seeing oncoming traffic. Berger said that the defense retained collision reconstruction, motorcycle safety, orthopedic surgery, and ophthalmology experts, but the plaintiff benefited from a recent wrongful death settlement involving the defense ophthalmologist, court rulings limiting the reconstruction expert’s opinions, and a history of misleading testimony by the orthopedic surgeon. “The excess carrier had proclaimed they would never pay $2 million or more on top of the $1 million primary policy,” Berger said. “After being provided with documentation related to their experts’ potential vulnerabilities, they resolved the case for a total of $4,450,000.” Berger said that his client isn’t angry with the defendant, but feels as though his life’s work has been taken from him. “A proud grandfather and community leader was reduced to chronic pain and close to two years in a wheelchair,” Berger said. “He is now able to walk but remains physically limited, which in turn limits what he can do with friends and family, especially the grandchildren.” The case settled on Dec. 8. Berger said that the plaintiff will use part of his settlement to pay for his grandchildren’s college education so that they can enter the workforce debt-free. SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $4.45 million Injuries alleged: Broken clavicle, femur, tibia, and fibula Case name: Withheld Court: Sumter County Circuit Court Date of settlement: Dec. 8, 2021 Special damages: $374,000 Most helpful experts: Thomas Langley (collision reconstruction) and Dr. Ilya Leyngold (ophthalmology) Insurance carrier: Withheld Attorneys for plaintiff: Kenneth Berger and Brad Lanford of the Law Office of Kenneth E. Berger in Columbia Attorneys for defendants: Withheld

12.

Jury awards $4.4M for injuries from fallen elevator

A man who was injured by a falling elevator in his newly purchased home will net more than $4.4 million from a Georgetown County jury’s verdict in a dispute over what the seller was obliged to disclose. Chris Romeo and Michael Grabara of Thurmond Kirchner & Timbes in Charleston report that their client, Mate Steurer, was using the elevator for the first time when its cable snapped, allowing the car

TOP V&S 2021 / 9 to plummet one floor from the kitchen to the garage. The impact left Steurer with two fractured heels requiring surgery. Romeo said that the elevator was originally a dumbwaiter when the house was built in 2000 but was reconfigured for human transport not long after construction. Much of the case hinged on a question in the disclosure statement that asked about any structural changes made to the home, which defendant Patricia Lacy sold to Steurer in 2015. “This would fall under that, because the conversion didn’t just include the actual lift itself in changing the mechanical and electrical elements, but also they had to do some work to expand the shaft and put in additional support beams,” Romeo said. If he’d known the elevator’s history, Steurer would have had it examined since it wasn’t covered under the standard home inspection and lacked basic safety features like an emergency braking system, Romeo said. The two sides tried but failed to negotiate a highlow agreement before going to trial. The plaintiff’s final offer was a range of $600,000 to $2 million, while the defendant’s final offer was a range of just $50,000 to $300,000. The case proceeded to trial without a high-low agreement, and on May 19 the jurors awarded Steurer $6,772,000 in damages, which was then reduced by 35 percent to reflect the amount of fault allocated to the plaintiff, leaving a recovery of $4,401,800. The jury awarded $1.5 million for mental anguish and distress, $1.5 million for pain and suffering, $1 million for alteration of lifestyle, $1 million for loss of enjoyment of life, $589,000 for loss of earnings and income, $500,000 for severe physical injuries, $500,000 for permanent impairment, and $183,000 in medical expenses. Romeo said that Steurer is an airline pilot, and between recovery time and being re-cleared for his job by the Federal Aviation Administration, he missed two-and-a-half years of work and pay. J. David Banner of Aiken Bridges in Florence represented Lacy. He didn’t return a request for comment, but Romeo said the defense contended that there was no responsibility to disclose the elevator since it had operated without difficulty since its installation. “Our point was that you don’t just have to disclose defects,” Romeo said. “You also have to disclose substantial structural changes that have been made to the property.” Romeo said the defense also claimed that the elevator had been installed before Lacy bought the home, and she’d had it regularly inspected by the installer, but Romeo said deed records indicated that Lacy was the owner when the modifications were thought to have been made, and the installer was no longer in business after 2005. Romeo said that additional parties were initially named in the suit. The seller’s realtor reached a confidential settlement, and Romeo determined that the original general contractor hadn’t played a role in the elevator’s installation and the elevator’s installer was deceased. VERDICT REPORT – FAILURE TO DISCLOSE

Amount: $4,401,800 (after 35 percent reduction due to allocation of fault) Injuries alleged: Bilateral calcaneus (heel bone) fractures Case name: Mate and Holly Steurer v. Patricia Lacy Court: Georgetown County Court of Common Pleas Case No.: 2018-CP-22-007828 Judge: Debra McCaslin Date of verdict: May 1, 2021 Demand: High/low agreement of $2 million/$600,000 Highest offer: High/low agreement of $300,000/$50,000 Most helpful experts: Dr. Bryan Durig (mechanical engineer) Insurance carrier: Travelers Attorneys for plaintiff: Chris Romeo and Michael Grabara of Thurmond Kirchner & Timbes in Charleston Attorneys for defendant: J. David Banner of Aiken Bridges in Florence

10 / TOP V&S 2021

13.

Family hurt in fire settles suit for $4.1M

A family that suffered injuries while escaping from a residential fire has obtained a $4.1 million settlement from the condominium association for the building in which they lived and its management company, the family’s attorneys report. Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach report that mother and daughter Elaine and Khrysta Boulavsky of Myrtle Beach were at home when fire broke out at their complex in 2018. Monica Yates said the pair was forced to leap from a third-floor balcony to evade the flames. The firm said that Elaine suffered fractures to her ribs, spine, pelvis, hips, and ankles that required multiple surgeries and ten weeks of rehabilitation. Khrysta suffered a hip fracture, a collapsed lung, and problems from smoke inhalation. Additionally, Elaine is scheduled to undergo hip replacement surgery, and the family’s puppy died in the fire. The Boulavskys sued the Windsor Green Owners Association and Benchmark/CAMS LLC, which oversaw the development, in Horry County Circuit Court. They alleged that negligence played a role in the blaze, particularly in relation to a birds’ nest said to be inside a light fixture on the floor below their unit. The complaint said that Horry County investigators traced the probable origin of the fire to an area at or near the fixture, although the official cause was “undetermined.” The complaint also alleged that the structure had no fire alarm or sprinkler system and no secondary means of escape. Yates said that the Boulavskys had no idea the conflagration was happening until they smelled smoke. “When they went to reach for the front door, they could feel the heat coming off that side of the condo [and] knew that they couldn’t open the door,” Yates said. “When they looked out the window, the only ingress and egress option that they had was the outdoor stairwell on the side of the building, and it was completely engulfed in flames.” Yates said that the Boulavskys didn’t allege any violations of building codes, but the complaint alleged a “history of fires” at the complex and noted a blaze five years earlier that it said damaged 30 buildings, most of which were renovated with new safety features. The Boulavskys’ structure wasn’t among them. Their suit was part of a global $10 million settlement and was one of several claims consolidated in the matter, Yates said. Husband and father Greg Boulavsky was also a party to the suit via a loss of consortium claim, the destruction of his possessions, and mental anguish. Jay Seibels of the Seibels Law Firm in Charleston represented Windsor Green. K. Michael Barfield of Barnwell Whaley Patterson & Helms in Charleston represented Benchmark/CAMS, LLC. Neither attorney returned a request for comment. Sam Clawson mediated the settlement, which was agreed to on Sept. 10. SETTLEMENT REPORT – PERSONAL INJURY

Amount: $4.1 million Injuries alleged: Rib, spine, pelvis, hips, and ankle fractures; hip fracture, collapsed lung, and problems from smoke inhalation; and loss of consortium, destruction of possessions, and mental anguish Case name: Greg Boulavsky; Elaine Boulavsky; Khrysta Boulavsky v. Windsor Green Owners Association, Inc. dba Windsor Green Homeowners Association; Benchmark/CAMS, LLC Court: Horry Count Circuit Court Case No.: 2019-CP-26-00090 Mediator: Sam Clawson Date of settlement: Sept. 10, 2021 Special damages: $1.875 million in past medicals, projected future medical costs, lost wages and property loss Most helpful experts: Frank E. Hagan of Buford, Georgia (mechanical engineer) Insurance carriers: Scottsdale Insurance Company, Greenwich Insurance Company, and Cincinnati Insurance Company Attorneys for plaintiffs: Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach

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Attorneys for defendants: Jay Seibels of the Seibels Law Firm in Charleston for Windsor Green and K. Michael Barfield of Barnwell Whaley Patterson & Helms in Charleston for Benchmark/CAMS, LLC

14.

Leaking radiator fluid leads to $4M settlement

A man who sustained severe burns from radiator fluid that leaked onto his leg after he was involved in a car crash has reached a $4 million settlement in a product liability lawsuit, his attorneys report. J. Taylor Powell and Ellis Lesemann of Lesemann & Associates in Charleston and Ronnie Crosby and Austin Crosby of Peters, Murdaugh, Parker, Eltzroth & Detrick in Hampton report that their client sued the dealership that sold him the late-model vehicle. Many of the details of the case, including the identities of the parties, were withheld pursuant to a confidentiality agreement. Powell said that the client was involved in a Tbone collision that occurred when he pulled out in front of a commercial van. Although the client sustained little injury from the impact itself, the crash left him trapped in the car as the contents of its cooling system leaked into the vehicle. “He was pinned in the driver’s cabin until they could separate the vehicles and free him,” Powell said. “While that’s happening, scalding hot radiator fluid is spewing into the cabin on his legs.” Powell said that the man suffered deep burns, some of which penetrated all the way to the bone. He still has scarring and mobility issues, and his gait has been impacted. “He was hospitalized for months,” Powell said. “Even [during outpatient treatment], he was still receiving semi-regular treatment for the scar tissue and the tissues that had been damaged a year after the accident.” The suit alleged negligent design under a theory of strict liability. “If the product fails and you’ve put it into the stream of commerce, either as a maker or seller or secondary seller, you are ultimately responsible under warranty theories,” Powell said. Powell said that although his client was at fault in the collision, that fact was irrelevant since comparative fault isn’t admissible in product liability crashworthiness cases. “It doesn’t matter who caused the wreck if the defect in the vehicle is what ultimately caused his injuries.” Powell said that errors by the defendant’s insurance adjuster in failing to file a timely answer resulted in a default judgment which established liability. A settlement was reached before the court could rule on damages. Powell said that the defect which injured his client could have been foreseen. “The driver and passenger cabin should be designed as such that if there is an impact, scalding hot fluid shouldn’t be pouring in on people.” SETTLEMENT REPORT – PRODUCT LIABILITY

Amount: $4 million Injuries alleged: Third-degree burns to the legs and feet Case name: Confidential Court: Confidential Date of settlement: Confidential (but case settled in 2021) Special damages: $581,302.39 in past medical expenses Attorneys) for plaintiff: J. Taylor Powell and Ellis Lesemann of Lesemann & Associates in Charleston and Ronnie Crosby and Austin Crosby of Peters, Murdaugh, Parker, Eltzroth & Detrick in Hampton Attorneys for defendant: Confidential

15.

Head-on crash leads to $3.5M settlement

A man who lost a leg after a head-on collision in Pickens County has settled a claim for $3.2 million, and a second person injured in the crash has agreed to a $300,000 settlement, their attorney reports.

Roy Willey IV of the Anastopoulo Law Firm in Charleston reports that his clients, whose names were withheld pursuant to a confidentiality agreement, were returning home from dinner when the defendant crossed the centerline and crashed into their vehicle. The plaintiff traveling in the passenger seat suffered a leg injury so severe that the leg had to be amputated. The driver’s injuries were relatively minor, Willey said. At the time of the crash, two small dogs were also in the vehicle. One of them was killed, Willey said. Other details about the case, including the identities of the defendants and their attorneys, were withheld pursuant to the confidentiality agreement. Willey said that the defense had contended that the accident was unavoidable, or the result of an intervening act or event. The defense also argued the plaintiffs had the last clear chance to avoid the accident but failed to do so. “I believe their position was that my clients were attempting to turn in front of [the defendant] and were in her lane,” Willey said. “But I am not 100 percent sure, honestly, because there is no evidence of that.” The plaintiffs were also represented by Alexis McCumber, Eric Poulin, and Matthew Foss, also of the Anastopoulo Law Firm. SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3.5 million Injuries alleged: Leg amputation Case name: Withheld Court: Pickens County Circuit Court Case No.: Withheld Date of settlement: February 2021 Attorneys for plaintiff: Roy Willey IV, Alexis McCumber, Eric Poulin, and Matthew Foss of the Anastopoulo Law Firm in Charleston Attorney for defendant: Withheld

16

(tie). Developers, DOT settle eminent domain claim for $3.25M

The South Carolina Department of Transportation has paid $3.25 million to settle an eminent domain claim with property developers after it installed a median that limited access to an 80-acre tract in Berkeley County, the developers’ attorneys report. Richard Bybee and Jeff Tibbals of Bybee & Tibbals of Mount Pleasant report that the DOT filed the condemnation action in 2016 so it could build a new mile-long median on Clements Ferry Road, which fronts the property. The property’s owners had planned to develop the 80 acres into a retail and a housing development, Bybee said. Before the median was replaced, the property had multiple access points that would have allowed traffic to turn left into the property. The new road configuration offers only one access point, without a dedicated turning lane, and at a spot that fronted wetlands next to the property. Since the new configuration diminishes access to the property, it reduced the property’s fair market value. The DOT’s initial proposal for the reduction in value was only $98,000. Bybee said. Ultimately the two sides settled for the $3.25 million figure in February. The developers still plan to develop the property in some fashion but are still figuring out how to proceed, Bybee said. David Pagliarini of Hinchey, Murray & Pagliarini in Charleston represented the DOT. He could not be reached for comment. SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $3.25 million Injuries alleged: Reduction of access to 80-acre property Case name: South Carolina Department of Transportation vs. McAlister-Togant ClementsFerry, LLC, Hofford Cainhoy, LLC, Bennett Cainhoy I, LLC, Bennett Cainhoy II, LLC and First Federal Savings & Loan Association, of Charleston, Court: Berkeley County Circuit Court

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Case No.: 2016-CP-08-203 Date of settlement: Feb. 21, 2021 Mediator: Marvin Infinger of Charleston Attorneys for defendants: Richard Bybee and Jeff Tibbals of Bybee & Tibbals in Mount Pleasant Attorney for plaintiff: David Pagliarini of Hinchey, Murray & Pagliarini in Charleston

16

(tie). Utility to pay $3.25M for strip of land in Charleston

A landowner has reached a $3.25 million settlement with a public utility over the utility’s condemnation of a 1.33-acre strip of land in Charleston, the landowner’s attorneys report. Richard Bybee and Jeff Tibbals of Bybee & Tibbals in Mt. Pleasant report that their client, Xiphias Holdings, objected to the valuation of multiple parcels of land located where South Carolina Electric and Gas Company wished to construct a transmission line for the new Hugh Leatherman Terminal. “This was also an interesting case because the property values in that area of Charleston have been increasing significantly as the character of the neighborhood changes,” Tibbals said. “It has gone from industrial to more office, retail and residential use.” He said the utility, which now does business as Dominion Energy South Carolina, Inc., initially offered only $1,786,800, but the landowner’s appraisers put the value at close to $4 million. The major issue in the case revolved around the value of impacted buildings on the land, which are currently occupied by a sign-making business. “It was the utility company’s theory that the buildings did not enhance the value of the property,” and the company contended that the land actually would have been worth considerably more had the buildings not been there, Tibbals said. “For at least one of the parcels, the appraiser for the utility company had a higher value than our appraiser, but the difference in this case was the damages.” The two sides reached the settlement in June. Marvin Infinger served as mediator. The attorneys said that per the agreement the buildings would remain standing, but there would be restrictions regarding ongoing maintenance. Sean Foerster of Rogers Townsend in Columbia and Jay Bressler of Dominion represented the utility. Neither Foerster nor the utility’s media relations line responded to a request for comment on the matter. SETTLEMENT REPORT – EMINENT DOMAIN

Amount: $3.25 million Injuries alleged: Taking of 1.33 acres Case name: South Carolina Electric & Gas Company v. Xiphias Holdings, LLC Court: Charleston County Circuit Court Case No.: 2019-CP-10-1933 Mediator: Marvin Infinger Date of settlement: June 2021 Most helpful experts: Pledger “Jody” Bishop (appraisal), Eric Tobias (structural engineer), Chappy McKay (general contractor), George E. (Jake) Knight Jr. (appraiser) Attorneys for defendant: Richard Bybee and Jeff Tibbals of Bybee & Tibbals in Mt. Pleasant Attorneys for plaintiffs: Sean Foerster of Rogers Townsend in Columbia and Jay Bressler of Dominion Energy South Carolina

18.

Jury awards over $3.1M after gas station sells alcohol to minor

A South Carolina gas station has been found liable as part of a more than $3 million award stemming from a drunk driving crash after staff allegedly failed to check identification of an underage alcohol purchaser. David Yarborough, Reynolds Blankenship, and David Lail of Yarborough Applegate in Charleston

represented Damien Cooper, who filed suit after a 2017 collision left him with extensive injuries including a broken femur, two broken knees, a fractured wrist, a punctured lung and post-concussive syndrome issues. “We knew there was a drunk driver involved on the other side, and we knew that he was underage, so obviously we set out to find out where the alcohol came from,” Yarborough said. Sunoco LP and Sunoco Retail LLC were named in the suit, which alleged that the drinks were bought at one of its locations. Yarborough said the defense made a variety of arguments in the matter, including attempting to undercut testimony from the purchaser about whether he had obtained the beverages from the store at all. “They tried to take away from the credibility of the boys by suggesting that there was no evidence of the sale, but at the same time they allowed for the possibility that it did occur,” he said. Yarborough said that Sunoco contended that no receipt was found to prove the purchase happened and that security video footage from the time in question had already been automatically recorded over. Yarborough said the defendants also argued that the buyer had previously used a fake ID at the location, although he testified that he hadn’t done so in this instance. Complicating matters further, the purchaser of the alcohol wasn’t the at-fault driver. “I think that was one of the sticking points for Sunoco in disputing liability in the case was that they didn’t believe that the law in South Carolina provided for a cause of action against a store when they sold it to one minor and he shared it with another minor,” Yarborough said. Yarborough argued that the defendant was still liable and that the company’s own training materials noted the possibility of minors sharing alcohol after its illegal acquisition and its policy was to card anyone who appeared to be below the age of 30. There was also dispute over the extent of injury in the case, with the defense arguing that Cooper had made a good recovery and had resumed work. “Our position was that he may be back at work now making more than before, but over the course of his lifetime, he won’t be able to have a full work life,” Yarborough said. “We argued that he had a loss of earning capacity as opposed to lost wages.” Yarborough said that Jackson Watts, the atfault driver, was named in the suit but acknowledged liability in the crash and testified about the purchase. On Nov. 4, Jurors awarded $3.064 million in actual damages for which Sunoco and Watts were jointly and severally liable, including $715,000 in past and future medical expenses and $224,000 in lost earning capacity. The jury also found Watts liable for $100,000 in punitive damages. “We were very grateful that the jury was able to see through the defenses and that they came back with a full measure of justice for Damien Cooper,” Yarborough said. Ryan Holt and Mark Barrow of Sweeny Wingate & Barrow represented Sunoco and Robert Kneece III of Turner Padget represented Watts. None of the attorneys returned messages requesting comment. VERDICT REPORT – DRAM SHOP

Amount: $3.164 million Injuries alleged: Orthopedic injuries including a broken femur, two broken knees, a broken wrist, a chipped cervical bone, post-concussive syndrome, torn ACL, and torn PCL Case name: Damien Cooper v. Jackson Watts; Sunoco LP; Sunoco Retail, LLC Court: Charleston County Circuit Court Case No.: 2017-CP-10-6307 Judge: Jennifer McCoy Date of verdict: Nov. 4, 2021 Highest offer: $1 million Special damages: $715,000 in past and future medical expenses, $224,000 in lost earning capacity, $100,000 in punitive damages Attorneys for plaintiff: David Yarborough, Reynolds Blankenship, and David Lail of Yarborough Applegate in Charleston Attorneys for defendants: Ryan Holt and Mark

Barrow of Sweeny Wingate & Barrow of Columbia for Sunoco and Robert Kneece III of Turner Padget in Charleston for driver

19.

Construction worker hit by falling rebar settles case for $2.9M

A construction worker who was injured after being struck in the head by falling rebar has settled his negligence lawsuit for $2.9 million, his attorneys report. Stephen Samuels and Jason Reynolds of Samuels Reynolds Law Firm in Columbia report that on March 22, 2018, their client, Travis Sarvis, was working for a general contractor in Myrtle Beach, building a high-rise, when a sheet of rebar—steel reinforcing rods used in concrete—broke apart as it was being hoisted 26 stories above Sarvis. A piece struck Sarvis in the head, causing traumatic brain injury and injuries to his spine and shoulder. Defendant BMW Rebar had prepared the sheet of rebar, and the crane operator was employed by defendant LaborQuick, the attorneys report. Reynolds said that based on the OSHA report, he initially wasn’t sure who was at fault. “But what we learned is that both defendants had failures on their training and their safety practices; that had either one of them done what they were supposed to do, none of this would’ve happened,” Reynolds said. “I can’t believe he’s alive. The rebar put a hole in his hardhat. It also put a hole in his skull.” The day before mediation, Sarvis settled for policy limits of the primary layers of coverage with a carve-out for a coworker who received minor injuries after being struck by the falling rebar. Lawyers Weekly reached out to the attorneys for both BMW Rebar and LaborQuick. Neither attorney responded to a request for comment, and Reynolds requested that the attorneys’ names be withheld. SETTLEMENT REPORT — NEGLIGENCE

Amount: $2.9 million ($2,650,000 personal injury and $250,000 workers’ compensation with waiver of the lien) Injuries alleged: Traumatic brain injury, annular tear and herniation at C3-4 and C4-5, left shoulder rotator cuff injury, post-traumatic stress anxiety Case name: Travis Sarvis v. BMW Rebar Company, Inc. & LaborQuick, Inc. Court: Horry County Circuit Court Case No.: 2019-CP-26-03303 Date of settlement: July 7, 2021 Special damages: $2,269,785.18 ($329,173.18 medical expenses at time of settlement) Most helpful experts: Dr. Jason Highsmith of Carolina Neurosurgery and Orthopedics, Jenny Glasgow of ProjectWorks, Dr. Robert Brabham of Psychological & Training Services, Stephen Fournier of Robson Forensic, and economist Oliver Wood of Columbia Insurance carrier: Zurich Insurance Group for LaborQuick, Inc. and Lloyd’s, London General Liability OCIP for BMW Rebar Company, Inc. Attorneys for plaintiff: Jason Reynolds and Stephen Samuels of Samuels Reynolds Law Firm in Columbia Attorneys for defendants: Withheld

20.

Trucking company pays $2.85M to woman hurt in crash

An Upstate trucking company has paid a $2.85 million settlement to an Anderson County woman after one of its drivers failed to yield right of way, causing the plaintiff to crash into a loaded dump truck, her attorney reports. Thomas “Field” Dunaway IV of the Dunaway Law Firm in Anderson reports that his client, whose name was withheld pursuant to a confidentiality agreement, was driving uphill along U.S. Highway 24 when the truck pulled out of a residential neighborhood and turned left across the

12 / TOP V&S 2021 four-lane highway, directly into her path. The 19-year-old client’s car slammed into the side of the truck, pinning her inside. She was airlifted to Greenville Memorial Hospital (now Prisma Health), where she spent nearly two months being treated for injuries including several leg fractures, broken ribs, a liver laceration, lung failure, and severe internal bleeding. Dunaway said that she underwent numerous surgeries over the next year and has racked up nearly $1 million in medical bills. At the time of the crash, the client had been transporting a friend’s 2-year-old son, who was ejected from the back seat but wasn’t seriously injured. The child was also taken to the hospital for treatment. Dunaway said that the truck driver never looked before pulling onto the highway and causing the “violent collision.” “The woman died twice on the operating table,” Dunaway said. “She will probably never walk without a limp again, and her injuries will be felt for the rest of her life.” The settlement includes liability coverage on the truck and excess coverage from the company’s umbrella insurance. Dunaway said that the defendant has a checkered driving record and wasn’t a typical employee of the trucking company. “They usually do well on hiring their drivers, but in this case they used a third-party company,” Dunaway said. “This guy didn’t care about anyone but himself. He told bystanders not to touch the baby because it might increase his liability.” Dunaway said that the at-fault driver was later fired when his in-vehicle camera system showed him texting while driving just months after the crash. Other details about the case, including the identities of the defendants and their attorneys were withheld pursuant to the confidentiality agreement. Dunaway said that the defense contended that the plaintiff had been speeding, but that there was little evidence to support that argument. SETTLEMENT REPORT —MOTOR VEHICLE CRASH

Amount: $2.85 million Injuries alleged: Broken leg, broken pelvis, liver laceration, fractured ribs Case name: Withheld Court: Anderson County Circuit Court Case No. Withheld Mediator: Karl Folkens of Florence Date of settlement: Feb. 16, 2021 Demand: $3 million Insurance carrier: Withheld Attorney for plaintiff: Thomas “Field” Dunaway IV of the Dunaway Law Firm Attorneys for defendant: Withheld

21.

Bars to pay $2.5M in dram shop suit

Three bars have agreed to pay $2.5 million to six plaintiffs injured in a four-car crash caused by an intoxicated driver who for hours before the incident had been served strong, oversized beers and liquor, the plaintiffs’ attorneys report. The plaintiffs were represented by Sam Clawson and Christy Fargnoli of Clawson Fargnoli Utsey in Charleston, James Felts of Harmon & Felts in Georgetown, and Patrick Napolski of George Sink Injury Lawyers in North Charleston. Clawson said that the plaintiffs, traveling in three vehicles, were stopped in traffic when the defendant rear-ended one vehicle, causing the destructive chain reaction. Clawson reported that the two plaintiffs inside the vehicle struck by the defendant suffered the most serious injuries, including abdominal wall bleeding, chest wall contusion, a descending colon injury, and vertebral, sternal, and rib fractures. Medical bills for the pair topped $200,000, Clawson said. Injuries to the remaining plaintiffs were primarily soft-tissue injuries, Clawson said. Many details of the case, including the names of the parties and defense counsel, have been withheld pursuant to a confidentiality agreement. Clawson said that over a four-hour period at the

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first bar, the defendant drank four large beers with high alcohol by volume (ABV)—the equivalent of 11 drinks—aided by a server who circumvented the drink counting function of the bar’s point of sale system by ringing up the last two beverages to a “phantom seat.” “A typical domestic beer is 4 percent to 5 percent ABV and is served in a 12-ounce bottle or 16-ounce pint glass,” Clawson said. “Bar No. 1 served the customer beer up to 8.2 percent ABV in 24-ounce mugs. This was a dangerous combination that resulted in the intoxication of the customer.” Clawson said that while the defendant spent fewer than 10 minutes and consumed just one drink (albeit another ABV beer) at his second stop, the bar should’ve been aware of the man’s propensity for alcohol abuse because it had denied him service on two prior occasions because he was intoxicated. After leaving the second bar, Clawson said, the defendant went home for about 45 minutes before venturing back out and drinking Pawley’s Island IPAs and tequila for two hours at the third establishment. The server there, Clawson said, was not certified in the responsible service of alcohol as required by the bar’s policies and procedures. The defendant was arrested at the crash scene for driving under the influence, and Clawson said that a blood test administered by law enforcement showed that the defendant’s blood-alcohol content was approximately .16, twice the legal driving limit. Clawson offered further evidence from a forensic toxicologist opining that the defendant’s blood alcohol level was .20 at the time of the crash. The first two bars visited by the defendant asserted a proximate cause defense, Clawson said, arguing that the alcohol they served the man had been metabolized and eliminated at the time of the collision and that the causal chain was broken when the man safely made it home before heading out again. But after mediation by Karl Folkens of Florence, those bars agreed to pay $1 million and $500,000, respectively. The third bar settled for $1 million. Fargnoli said that while plaintiffs’ attorneys are pleased with the dollar amount obtained for their clients, another settlement term will provide “concrete and meaningful” change. “The fact that Bar No. 1 will no longer serve high-alcohol beer in 24-ounce mugs acknowledges the danger that this practice posed and serves to make the roadways safer for the entire community,” Fargnoli said. SETTLEMENT REPORT — DRAM SHOP

Amount: $2.5 million Injuries alleged: Numerous orthopedic and gastrointestinal injuries Case name: Withheld Venue: Withheld Mediator: Karl Folkens of Florence Date of settlement: Dec. 2, 2021 Special damages: $315,000 Most helpful experts: Dr. David Eagerton (forensic toxicologist) Attorneys for plaintiffs: Sam Clawson and Christy Fargnoli of Clawson Fargnoli Utsey in Charleston, James Felts of Harmon & Felts in Georgetown, and Patrick Napolski of George Sink Injury Lawyers in North Charleston Attorneys for defendants: Withheld

22.

Family of four hurt in highway crash settles case for $2.35M

An April 2019 highway accident that injured a family of four has resulted in a $2.35 million settlement from two different insurers, the family’s attorney reports. William Crantford and Jerry Meehan of Crantford Meehan in Charleston report that their New York-bound clients were leaving Summersville on Interstate 26 when they were struck from the rear by a tractor-trailer. The impact, which knocked the vehicle off the road and into a tree, resulted in a variety of damages ranging from neck injuries to leg contusions among the two adults and two chil-

dren inside. “Once we did the data download on the truck, we found out that he didn’t engage his brake or his clutch until a second or two before he made contact with my clients,” Crantford said. “He obviously didn’t see them, so it was either distracted driving or he was just not paying attention.” The case was settled pre-suit through mediation, and the identities of the plaintiffs, the defendants, and their insurers were all kept confidential. The primary insurer will provide the first million, with the remainder coming from an excess coverage carrier. “In addition to the $2,350,000 recovered, our clients had a combined $400,000 in MedPay,” Meehan said. “This additional coverage allowed our clients to recover without having to worry about mounting medical bills.” Crantford said that while the footage from nearby traffic cameras didn’t show the accident, they were still helpful in establishing that rainy conditions were present in the area. He said the plaintiffs were traveling at about 50 mph due to the weather, while information downloaded from the truck’s data recorder showed that it was going as fast as 70 mph. As a result, the evidence in the case was strong, he said. “We had focus grouped this case multiple times,” Crantford said. “An independent party did that for us and we had cost projections done by a life care planner so the case, from our standpoint, was ready to go.” He said the adults in the front suffered more injuries than the younger backseat passengers. SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $2.35 million ($1 million from primary insurer; $1.35 million from excess carrier) Injuries alleged: Various injuries to four individuals, including neck and leg issues Case name: Case settled pre-suit Venue: Berkeley County Date of settlement: Confidential (but case was settled in 2021) Insurance carrier: Confidential Attorneys for plaintiff: William Crantford and Jerry Meehan of Crantford Meehan in Charleston Attorneys for defendant: Confidential

23.

Man crushed by truck at work receives $2.2M

A man who was crushed by a truck during his first day on the job as a warehouse manager will collect over $2.2 million in settlements with multiple insurers, his attorney reports. Charles Condon Jr. of Mount Pleasant reports that his client, whose name was withheld, was trying to assist in the unloading of a tractor-trailer when warehouse employees realized that the dock leveler—the ramp that connects the dock to the truck—wasn’t in place. The truck’s driver pulled forward to make room, and the client descended into the bay, at which point the driver reversed, smashing the man’s arms against the dock. Condon said that training dictated that the driver should have been more careful, and the driver didn’t follow the industry-standard “G.O.A.L principle”—an acronym for “get out and look”. He also failed to signal, didn’t use a spotter, and didn’t communicate with workers. “He had a duty to make sure that where he was backing up was clear, particularly in light of the fact that he knew they were trying to get this leveler up,” Condon said. “He should have made sure that was done before he backed up.” Condon said that his client, despite numerous surgeries, still has significant impairment to both arms and noticeable scarring, and that his injuries would certainly affect his future career path. “He is functioning, but it is definitely permanent,” Condon said. The client secured a $2 million settlement with the liability insurer, reflecting the full policy limits. He also obtained a workers’ compensation settlement of $155,000 and an underinsured motorist policy settlement of $50,000. Condon said he believes that the injuries were likely worth more than the policy limits, and that likely influenced the insurer’s decision to settle.

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14 / TOP V&S 2021 Condon said that the company should have filed an accident report with the police but failed to do so, and it was unclear why they failed to do so. The case was resolved pre-suit, but Condon said the defense might have tried making a contributory negligence argument based on the fact that his client went down into the bay, since the issue came up during negotiations. SETTLEMENT REPORT – NEGLIGENCE/WORKERS’ COMP

Amount: $2,205,000 ($2 million in liability insurance, $155,000 in workers’ comp, and $50,000 in UIM insurance Injuries alleged: Serious crush injury to both arms Case name: Case settled pre-suit Venue: Charleston County Date of settlement: January 2021 Most helpful experts: George Page (vocational rehabilitation) and Lindsay Moore (medical consultant) Insurance carrier: AIG (liability), Erie Insurance Company (workers’ comp), and State Farm (UIM) Attorney for plaintiff: Charles Condon Jr. of Mount Pleasant Attorneys for defendant: None

24.

Hospital, USC to pay $2.1M for pregnancy that led to coma

The family of a woman who remains in a coma after giving birth in a Columbia hospital in 2018 has settled a lawsuit against the treating hospital and the University of South Carolina for $2.1 million, her attorneys report. Eric Bland and Ronnie Richter of Bland Richter in Columbia report that Jodie Roberts had a highrisk pregnancy before being admitted to Prisma Hospital to give birth to her son. She thought she was going to give birth via C-section, but instead the treatment plan directed a natural birth. Roberts was in labor for 36 hours, during which her blood pressure became “dangerously high” and she suffered from hypoxia, or shortness of breath. Roberts suffered a stroke and was rushed for an emergency C-section to deliver the baby. She went without oxygen for about 18 minutes before she was intubated. The baby was delivered, but Roberts suffered significant injuries including severe anoxic brain impairment, Bland said. She remained at Prisma hospital for about six months before she was discharged and has remained bedridden and in a coma since. The baby was in an induced coma for about three weeks, and it is too soon to tell whether he will suffer from cognitive defects. In the lawsuit, Roberts’ guardian and uncle, Burrell Kelly, alleged that the hospital failed to supervise the medical residents from the University of South Carolina who were primarily responsible for treating and monitoring Roberts and failed to alter the medical plan in place to deal with her elevated blood pressure. Bland said the residents at the hospital were scared to change Robert’s medical care plan and there should have been a doctor available to take charge and make that call. “This tragedy could have been prevented,” Bland said. Given Roberts’ pre-existing health conditions, such as obesity and diabetes, Prisma knew the risks the pregnancy presented to her, including the risk of a stroke, which heightened the need to monitor and manage her blood pressure, the complaint alleged. Roberts, now 37, is in a persistent vegetative state and lives with her uncle and grandmother, who provide care for her 24 hours a day, Bland said. She requires a respiratory therapist and an occupational therapist for treatment in the hopes that she will regain some sort of movement in the future, although doctors say that her prognosis is grim. A life care plan by Sarah Lustig of Mt. Pleasant said that because of the extensive brain injuries, the cost of future health and related costs are more than $20 million, but South Carolina law caps such damages at $1.2 million for each occurrence for charitable and non-profit hospitals. The attorneys

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said that one of the hardest aspects of the case was trying to get Roberts’ family to understand why the settlement was capped. “If this was a private medical provider, then the cap would only have been $1.2 million for pain and suffering, but there would be no cap for the economic damage,” Bland said. “The tort law damages caps are completely arbitrary and there needs to be an exception for cases of catastrophic injuries where there is need for ongoing costly medical treatment.” The attorneys for the defendants, Murrell Smith of Smith Robinson in Columbia who represented Prisma Hospital, George Beighley of Richardson Plowden in Columbia, who represented the medical residents, and Kay Crowe of Barnes Alford Stork & Johnson in Columbia, who represented the University of South Carolina School of Medicine, could not be reached for comment, but Bland said that they contended that the hospital had followed standard practices of care. SETTLEMENT REPORT – MEDICAL MALPRACTICE

Amount: $2.1 million Injuries alleged: Severe anoxic brain injury resulting in a persistent vegetative state Case name: Jodie Roberts, by and through her Legal Guardian, Burrell Kelly v. Prisma Health (formerly known as Palmetto Health Richland Memorial Hospital), Prisma Health - University of South Carolina Medical Group (formerly known as Palmetto Health - University of South Carolina Medical Group), Berry Allen Campbell, M.D., Anna Alappat, M.D., Caitlin B. Tidwell, M.D., and John and Jane Doe Case No.: 2020-CP-4001119 Court: Richland County Circuit Court Mediator: Karl Folkens of Florence Date of settlement: Feb. 2, 2021 Most helpful experts: Amber Samuel, M.D. of Houston, Texas (maternal-fetal medicine) and Sarah Lustig of Mt. Pleasant (life care planning) Attorneys for plaintiff: Eric Bland and Ronnie Richter of Bland Richter in Columbia Attorneys for defendants: Murrell Smith of Smith Robinson in Columbia (Prisma Hospital), George Beighley of Richardson Plowden in Columbia (medical resident defendants) and Kay Crowe of Barnes Alford Stork & Johnson in Columbia (University of South Carolina School of Medicine)

25.

Defective tire leads to $2M settlement

A family that suffered a host of serious injuries in a rollover crash that was caused by a defective tire on a recently purchased used SUV has settled a lawsuit for $2 million, the family’s attorneys report. Ray Doumar and Bettis Rainsford of Doumar Rainsford in Augusta, Georgia, and Austin Crosby of Peters Murdaugh Parker Eltzroth & Detrick in Hampton represented the plaintiffs, a family of six including two adults and four minor children who were injured in the crash, which happened on Interstate 20. Pursuant to a confidentiality agreement, many details of the case, including the names of the parties and the venue and the identities of the defendants’ attorneys, were withheld. The attorneys said that their clients purchased the used Ford Explorer just three months before the crash and that they had no idea that one of the tires contained manufacturing defects, design defects, and was “too old to still be in operation.” “SUVs are particularly susceptible to rollovers as the result of tread separations,” Crosby said. The attorneys said that several occupants were ejected when the tire’s tread separated, but Crosby declined to comment on the cause of the tread separation, citing ongoing cases related to the crash. The plaintiffs, Crosby said, are pursuing cases against the tire and vehicle manufacturer. Most of the family’s policy-limit settlement will go toward its medical bills, which total more than $1.5 million. The 38-year-old father suffered a traumatic brain injury (TBI) that has severely affected his mental and motor function. The 36-year-old mother suffered a severely broken elbow that required several surgeries, screws,

and a plate. She has permanent loss of range of motion and psychological trauma. The 17-year-old son suffered abrasions and road rash and has undergone extensive psychological treatment for post-traumatic stress disorder (PTSD). The 13-year-old daughter suffered a fractured sternum, compression fractures to her spinal column, lacerations, and has undergone counseling for PTSD. The 5-year-old daughter suffered a TBI, lacerations, and insomnia and anxiety arising from PTSD. “All six family members are still treating and are expected to do so into the foreseeable future,” the plaintiffs’ attorneys wrote in an email to Lawyers Weekly. SETTLEMENT REPORT — NEGLIGENCE/BREACH OF WARRANTY

Amount: $2 million Injuries alleged: Traumatic brain injury, posttraumatic stress disorder, and multiple orthopedic injuries Case name: Withheld Court: Withheld Date of settlement: September 2021 Attorneys for plaintiff: Ray Doumar and Bettis Rainsford of Doumar Rainsford in Augusta, Georgia, and Austin Crosby of Peters Murdaugh Parker Eltzroth & Detrick in Hampton Attorneys for defendant: Withheld

26.

County, school district to pay part of $1.85M settlement

A student left with profound permanent brain injuries after being struck by a car will receive a $1.85 million settlement, including half a million from the county and school district. According to Daniel Draisen of The Injury Law Firm, the minor plaintiff, identified as V.T. was left bedridden and dependent on a feeding tube unable to walk or communicate after the September 2020 accident in which she was hit by a fellow student operating a vehicle. The driver’s insurance contributed $1.3 million with another $50,000 coming from V.T.’s UIM coverage. The remainder was from Anderson County and the Anderson County School District Five. “People have been complaining for years that students fly up and down that road cutting through from other parts of the county to get to school and for kids walking there was no sidewalk, no shoulder,” Draisen said. “It is just a road and then grass.” Draisen said the incident took place in a subdivision about 100 yards from the school where recent residential construction has increased foot traffic along the country road, which had briars on the other side that prevented individuals from walking while facing traffic. Despite complaints from the public, Draisen said the district and the county had been in dispute over the details of who would pay to install a sidewalk in the area. Since the accident, an asphalt path has been put in place. He said that, in the event of a tragedy such as this, it can be useful for attorneys to explore creative avenues to get a fair recovery for the incident. “Unfortunately, we a lot of times are stuck with just the automobile coverage but it is always worth checking to see if there are other potentially culpable parties,” he noted. Draisen listed Allison Hanna of Halligan Mahoney Williams as representing the district and Steven Pruitt of McDonald Patrick as representing the county. The former declined comment and the latter did not return a request for comment. Draisen said there was no attorney for the atfault driver. SETTLEMENT REPORT – MOTOR VEHICLE ACCIDENT

Amount: $1.85 million Injuries alleged: Profound permanent brain injury, loss of ability to walk, communicate or perform ADL, bedridden, dependence on a feeding tube, seizures

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Case name: To Anh Tran, conservator for V.T., a minor, v. Anderson County; Anderson County School District Five Court: Anderson County Circuit Court Case No.: 2021-CP-04-00412 Judge: J. Cordell Maddox, Jr. Date of settlement: Dec. 2, 2021 Attorney for plaintiff: Daniel Draisen of The Injury Law Firm in Anderson Attorneys for defendant: Allison Hanna of Halligan Mahoney & Williams in Columbia (for the district); Steven Pruitt of McDonald Patrick in Greenwood (for the county)

27.

Insurer to pay $1.5M after missing Tyger River deadline

An at-fault driver’s insurance company will pay $1.5 million to a man who was injured in a car crash, after the insurer failed to meet a five-day deadline to reply to the plaintiff’s demand for a settlement for the driver’s full policy limits. Justin Bamberg of Bamberg represented the plaintiff, who was driving home when the defendant crossed into the plaintiff’s lane and struck his vehicle head-on, leaving the plaintiff entrapped in the vehicle with a broken femur. Pursuant to a confidentiality agreement, many of the details of the case were withheld, including the identities of the parties and the insurer and its attorneys. Bamberg said that the defendant’s insurer accepted liability and informed him of the available limits of $25,000 per person, $50,000 per accident, and $25,000 in property damage limits, the minimum coverage allowed under state law. Bamberg said that the claims adjuster contended that the case wasn’t an aggravated liability claim, which must include not only negligence, but recklessness. “We knew we had to be aggressive, focus on our own documentation, and prepare for an insurer badfaith or negligence case because the liability limits were insufficient for our client’s injuries,” Bamberg said, adding that on a Thursday afternoon, he overnighted a five-day Tyger River demand—including $22,000 in medical bills—for the policy limits. Bamberg said that after the deadline expired at 5 p.m. the following Tuesday, the claims adjuster called and sent a letter acknowledging the missed deadline, claiming that the demand didn’t enter the claims file until after close of business. Bamberg said that this was untrue and that the adjuster was hoping to have the deadline tolled by making the plaintiff “fall into the proverbial bad-faith, ‘what is reasonable’ trap” since the deadline had expired just hours before. Because just two of the five days were business days (the Monday was a federal holiday), Bamberg said that correspondence and conversations over the following 24 hours would be crucial regarding his ability to make the Tyger River demand hold up in court given the recent opinion in Columbia Insurance Company v. Reynolds. In June, the 4th U.S. Circuit Court of Appeals held in Reynolds that no reasonable jury could find that the insurer refused to settle unreasonably and in bad faith by failing to accept the 10-day demand by plaintiffs’ counsel at the outset of a case, depriving the insurer of the right to conduct a reasonable investigation. In South Carolina, there is no bright-line rule for time-limit demands or mandatory period in which insurers must respond, but insurers have a duty to settle a personal injury claim if it is the reasonable thing to do. If an insurer refuses to settle within policy limits, it will be liable for the entire amount of the judgment, even if the amount exceeds policy limits. Bamberg said that when he declined to accept the liability limits, the claims adjuster became angry and hurled insults. “All I could do was wonder what would make him so angry to the point of personal insults over an insurance claim, Bamberg said. “I knew there had to be more to the adjustment on this claim than he was letting on.” Bamberg said that the claims supervisor declined his offer to negotiate and sent a liability limits check to Bamberg’s office. Within an hour, Bamberg said, the check was being returned to sender,

along with a lawsuit filed against the at-fault driver. Bamberg extended a two-week opportunity for the insurer to settle before serving the defendant. Bamberg said that the insurer had only five days to tender the policy limits, but it had known for two months that the reasonable thing to do was to immediately offer the limits to the plaintiff rather than sitting idly by. “It could have offered these insufficient limits two months before when the supervisor himself determined our claim was valued in excess of the policy,” Bamberg said. The day before the new deadline expired, the insurer accepted the settlement bracket proposed by the plaintiff and suggested mediation, Bamberg said. He added that he settled the case “rather than dying on the sword of a five-day Tyger River demand sent on a holiday weekend,” should an unfavorable court opinion be written while the case was pending. “While I believed everything would hold up in court, at the very end of the day, as we say in our neck of the woods, the pigs get fed and hogs slaughtered,” Bamberg said. “We turned a $25,000 liability policy into a $1.5M umbrella policy in just a few months.” SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.5 million Injuries alleged: Broken femur Case name: Withheld Court: Withheld Mediator: Doyet Early III of Mount Pleasant Date of settlement: Nov. 2, 2021 Insurance carrier: Withheld Attorney for plaintiff: Justin Bamberg of Bamberg Legal in Bamberg Attorneys for defendant: Withheld

28.

Company pays $1.4M after skipping background checks

A man who was injured in a car crash will receive a $1.4 million settlement from a company that allegedly failed to perform background checks on their employee driver who caused the crash. Sam Clawson and Christy Fargnoli of Clawson Fargnoli Utsey in Charleston report that their client suffered spine and shoulder issues because of the crash. Clawson said that eyewitnesses reported seeing the defendant’s driver operating their vehicle erratically before causing the crash. Due to a confidentiality agreement, many details of the case, including the identities of the parties and the defense counsel and the date and location of the crash, were withheld. Clawson said that the employer was vicariously liable for the crash, not only because of their driver’s negligent acts, but also because of the employee’s lengthy history of driving infractions. He said that the driver also had an extensive criminal record including assault, shoplifting and drug possession, and had incurred a speeding citation just two weeks before the collision. “There was no indication that the employer did its due diligence during the hiring process, for example by running a criminal background check, running a ten-year driver history check, checking references and things of that nature,” Clawson said. Clawson said that the settlement indicated that the client’s case was a strong one. “I think ultimately at trial, the defense likely would have admitted to simple negligence,” he said. “They would have disputed that liability was aggravated. They would have admitted to simple negligence only, not to gross negligence or negligence per se.” Clawson said he thought the case might also have been defended on causation of the injuries, because while his client’s spine issues weren’t in dispute, there were questions about whether his shoulder problems were related to the incident due to a delay in seeking treatment. “The plaintiff had not yet undergone surgical intervention on the shoulder, although his physician indicated that that would be reasonably likely to occur in the future,” he said. “From the plaintiff’s perspective, we felt like we had a reasonable

explanation. He tackled these in order of severity. He went with the spine first.” SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1.4 million Injuries alleged: Shoulder, neck and lower back injuries Case name: Confidential Venue: Confidential Date of settlement: Dec. 10, 2021 Special damages: $293,000 in past medical expenses Most helpful experts: Lindsay Moore of Mount Pleasant (life care planner) Attorneys for plaintiff: Sam Clawson and Christy Fargnoli of Clawson Fargnoli Utsey in Charleston Attorneys for defendants: Confidential

29.

Nightclub’s landlord to pay $1.3M for shootout on premises

A woman who was caught in the crossfire of a gang shootout has settled her lawsuit against the landlord of the nightclub where the shooting took place for $1.3 million, her attorneys report. Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Charleston report that their client suffered multiple jaw fractures after she was struck in the face by a stray bullet fired from a nearby nightclub. Dalton said that the woman was not a club patron and was standing across the street when a fight outside the club led to gunfire. The settlement came against the club’s landlord, and Dalton said that establishments must be held accountable where there’s a history of violence spilling outside its doors and into the community. “A business’ duty to exercise reasonable care does not end at its property line,” Dalton said. “While our client’s life will never be the same, we are confident she will have the means to get the best treatment she needs to move forward with her life.” Many details of the case, including the names of the parties and the venue, were withheld pursuant to a confidentiality agreement. SETTLEMENT REPORT — NEGLIGENCE/PERSONAL INJURY

Amount: $1.3 million Injuries alleged: Multiple jaw fractures Case name: Withheld Court: Withheld Date of settlement: February 2021 Attorneys for plaintiff: Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Charleston Attorneys for defendant: Withheld

30.

Teen injured in dump truck wreck settles claim for $1.275M

A teenager who was injured when he was rearended by a dump truck driver and then hit headon by another dump truck driver has settled his claims for a total of $1.275 million, his attorneys report. Taylor Powell and Ellis Lesemann of Lesemann & Associates and Brad Richardson of Conway report that their client, whose name was withheld, had stopped his pick-up truck in the road to drop off two friends at their home in Horry County when he was rear-ended by the first dump truck. The collision pushed the pickup truck across the center line and into the path of another dump truck travelling in the opposite direction, which hit him head-on. The teenager was rushed to the hospital. He suffered a traumatic brain injury, respiratory failure, a torn thoracic aorta, and a lacerated kidney. Powell said that the initial wreck report indicated that the teenager had caused the wreck and had been parked in the road without his headlights on, but that report was based on the recounting of

16 / TOP V&S 2021 the driver of the dump truck that rear-ended his truck. Security camera footage taken from a house next door showed that both the headlights and the taillights the teen’s pick-up truck were on, Powell said. The video showed that the driver of the dump truck didn’t slam on his breaks or use his horn. The dump truck would have had at least 900 feet of unobstructed line of sight to see the taillights lights and react, Powell said. Progressive Northern Insurance was the liability carrier with $1 million in coverage. GEICO was the UIM carrier with $275,000 in coverage. The teen is “doing pretty well” but continues to undergo therapy, Powell said. SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1.275 million Injuries alleged: Traumatic brain injury, respiratory failure, torn thoracic aorta, and lacerated kidney Case name: Claims were settled before any lawsuits were filed Date of settlement: March 17, 2021 Insurance carrier: Progressive Northern Insurance (liability) and GEICO (UIM) Attorneys for plaintiff: Taylor Powell and Ellis Lesemann of Lesemann & Associates in Charleston and Brad Richardson of Conway

31.

Parents of man slain in hotel settle suit for $1.25M

The parents of a man who was shot and killed at a “crime-infested” hotel have settled their wrongful death suit against the motel’s owner for $1.25 million, well above its insurance policy’s limits, their attorneys report. Brian Mickelsen and Danny Dalton of Mickelsen and Dalton in Charleston report that their clients and their son were approached at the defendant hotel by a drug dealer who lived there. The son and the dealer got into an altercation that led to the fatal shooting, and the parents watched their son die in their arms. A motel security guard witnessed the shooting, Dalton said, and the parents later learned that the guard had previous convictions for sex offenses and violent crimes. The attorneys said that the motel claimed that the son was a former motel employee who’d been trespassed from the property for threatening fellow employees with a knife. The parents denied the allegations and produced more than 15 affidavits from former motel employees, guests, and neighboring businesses showing that the security guard had previously fired shots at the motel; that he was in cahoots with the killer; that it knew about violent crimes committed both on motel premises and by the guard; and that the motel had a history of destroying or doctoring documents such as internal incident reports, emails, and video surveillance. The attorneys said that the motel rejected a $300,000 offer of judgment by the plaintiffs but later offered $500,000, which the parents rejected. The motel also rejected several Tyger River policy-limit demands, the attorneys said. The attorneys said that the motel was also sanctioned for failing to timely respond to discovery. “We went to war on this one,” Mickelsen said. “Ultimately, the court granted plaintiffs’ motion for sanctions and struck the defendant motel’s answer. I admire our judge, who demanded that the parties play by the rules and then sanctioned the defendant when it disregarded his order.” Pursuant to a confidentiality agreement, many details of the case, including names of the parties and venue, have been withheld. SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1.25 million Injuries alleged: Death and negligent infliction of emotional distress Case name: Withheld Court: Withheld Date of settlement: September 2021

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Attorneys for plaintiffs: Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Charleston Attorneys for defendant: Withheld

32.

$1.225M med-mal settlement after dentist drops crown in throat

A plaintiff who suffered a host of injuries after her dentist dropped a dental crown down her throat and failed to remove it has settled her medical malpractice suit for $1.225 million, the plaintiff’s attorneys report. Brink Hinson of Hinson, Hiller, & Padget and Steven Price of the Finkel Law Firm, both in Columbia, report that in May 2018, their 72-year-old client was undergoing a routine crown procedure when the dentist dropped the crown into the client’s trachea. The dentist believed that the crown fell into the patient’s esophagus, so he forewent X-rays and advised the plaintiff to drink a glass of water and eat crackers. Due to a confidentiality agreement, many of the case’s details, including the names of the parties and venue, were withheld. The patient later developed respiratory problems and went to a hospital, where a CT scan revealed a foreign object. Radiologists noted the object’s presence in their radiology report, but not in the report’s summary/impression section, and failed to make other efforts to alert the physician who ordered the study, the attorneys said. Hinson said that in September 2018, sepsis and two collapsed lungs sent the patient to an Upstate hospital’s emergency room and that the crown was removed three days later at a larger hospital. But respiratory illness and infection required a lengthy hospital stay and more than a month of in-patient rehabilitation. The patient and her husband filed a lawsuit against the dentist, dental practice group, and the hospital that performed the radiology, claiming that the dentist had fallen below the standard of care by failing to use a dental guard to prevent objects from falling into her throat. The patient further asserted negligence because the dentist failed to arrange X-rays to confirm the crown’s location. In separate claims, the patient asserted that the hospital employing the radiologists had breached the standard of care when it failed to promptly contact the ordering physician about the crown’s presence and note the crown’s presence in the impressions section of its radiology report. The patient settled her claims against the dentist and his practice group, and the hospital, for $675,000, and $550,000, respectively. “We were able to show through the depositions of those two radiologists that their improper documentation of the dental fragment, coupled with their failure to report their finding directly to our client’s attending physician—known as non-routine communication—was a significant deviation from the acceptable standard of care,” Price said. SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1.225 million Injuries alleged: Respiratory illness, sepsis, collapsed lungs Case name: Confidential Venue: Confidential Date of settlement: Sept. 20, 2021 Special damages: $423,636.23 Attorneys for plaintiff: Brink Hinson of Hinson, Hiller, & Padget in Columbia and Steven Price of the Finkel Law Firm in Columbia Attorneys for defendants: Withheld

33.

Undiagnosed tongue cancer leads to $1.2M recovery after trial

A York County jury has awarded $2 million to a man whose tongue cancer was misdiagnosed as tooth trauma, leading to several painful, disfiguring surgeries, his attorneys report. The plaintiff’s recovery was ultimately reduced to $1.2 million due to comparative fault.

John Kassel and Theile McVey of Columbia represented 61-year-old Tom Lovelace, whose local dentist referred him to oral surgeon Dr. Mark Billman to evaluate a lesion on Lovelace’s tongue. The local dentist was concerned about possible cancer, but Billman believed that the lesion was caused by a sharp wisdom tooth, and suggested that Lovelace have the tooth polished or extracted. Billman didn’t schedule a follow-up, mention any possible cancer to the referring dentist, or express urgency in having the tooth fixed, Kassel said. Lovelace had the tooth polished but returned to the dentist seven months later when the lesion became painful. The dentist again referred Lovelace to Billman, who extracted the tooth and performed a biopsy, which revealed stage 3 squamous cell carcinoma. Among other procedures, Lovelace had his lymph nodes and much of his tongue removed and underwent constructive surgery and six weeks of radiation and chemotherapy. Kassel said that Lovelace, an airline pilot, lost the last three years of his flying career, had to relearn to eat and speak, and worried about diminished life expectancy. Lovelace argued that the lesion should have been considered cancerous until proven otherwise, and that the cancer could have been detected and removed through a process requiring just a few dissolvable sutures had Billman scheduled a timely follow-up appointment. A lesion caused by a sharp tooth would have quickly healed, but a cancerous lesion wouldn’t have healed, Kassel said. “Excising a pre-cancer would end the story,” Kassel said. “Without a pre-cancerous lesion, there would be nothing left to develop into an invasive cancer with all its destruction.” Kassel said that Billman claimed to have told Lovelace about the possible cancer because it was his habit to inform all of his patients. But that claim was contradicted by office notes and the letter to the referring dentist, Kassel said. Dr. Michael Lechelop, Billman’s expert witness and an oral surgeon at the Medical University of South Carolina, testified that he didn’t believe that Billman breached the standard of care and that any follow-up should have been done by the referring dentist. But after reviewing the medical chart, Lechelop said that he believed Billman never mentioned cancer because he didn’t think it was cancer. “That was a pivotal fact in the case in a he saidhe said situation,” Kassel said. Kassel said that Lovelace would never have risked the lives of 200 passengers on each flight by ignoring a cancer warning. After a week-long trial, the jury deliberated for four-and-a-half hours before awarding Lovelace $2 million with a finding of 40 percent comparative fault on June 18. Kassel said that while the jury didn’t believe that Lovelace was told about the potential cancer, it was concerned that Lovelace waited too long to get the tooth fixed. Billman was represented by Joe Tierney of Rogers Townsend and Matthew Coles of Coles Barton. Neither attorney immediately returned a request for comment, but Kassel said that post-trial motions are pending. VERDICT REPORT — MEDICAL MALPRACTICE

Amount: $2 million (reduced to $1.2 million due to comparative fault) Injuries alleged: Loss of lymph nodes and most of tongue, disfiguration, loss of income Case name: Lovelace v. The Center for Oral and Maxillofacial Surgery and Dr. Mark Billman Court: York County Circuit Court Case No.: 2019-CP-46-01736 Judge: William McKinnon Date of verdict: June 18, 2021 Demand: $2 million Highest offer: None Most helpful experts: Dr. Thomas Spalla and Dr. Ray Fonseca Attorneys for plaintiff: John Kassel and Theile McVey of Columbia Attorneys for defendant: Joe Tierney of Rogers Townsend in Charleston and Matthew Coles of Coles Barton in Lawrenceville, Georgia

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34.

Workers’ comp case settled for $1.15M after severe car crash

A plaintiff who T-boned an oncoming vehicle has settled their workers’ compensation claim against their insurance carrier for $1.15 million, their attorneys report. Christopher Hart of Hart Law in Columbia and Justin Bamberg of Bamberg Legal in Bamberg represented the injured worker, whose name was withheld pursuant to a confidentiality agreement. Hart said that despite being airlifted to the hospital and undergoing emergency surgery, the crash left the client paralyzed from the waist down. The client had to travel out of state several days a week to receive adequate care for the required injuries for extensive rehabilitation and treatment with several medical professionals, Hart said. Hart said that post-rehabilitation, insurance carrier Gallagher Bassett Services was required to modify the client’s home and vehicle for wheelchair accessibility but that the claims process included much “hand-wringing” and “tug-of-war” with the Illinois-based carrier. As the client rehabilitated from catastrophic injuries, Hart said, the carrier declined to approve medical treatment. “On a daily basis for over three years we were constantly calling, emailing, faxing, writing letters to the insurance carrier ensuring the client’s medical treatments were approved and paid,” Hart said. Bamberg added that the plaintiff was adamant about not allowing the carrier to call the shots going forward. “Our client is now in control of all future medical treatment,” Bamberg said. The plaintiff’s injuries preclude them from doing the job they did before the crash. Hart said that his client has found other employment but with limited hours. Hart said that his client is doing much better, under the circumstances, and continuing to work at once again becoming self-sufficient. “Paraplegic therapy support groups and counseling has played a tremendous role in our client’s positive health gains,” Hart said. Pursuant to a confidentiality agreement, many details of the case, including names of the parties, the defense counsel, and location of the crash were withheld. SETTLEMENT REPORT – WORKERS’ COMPENSATION

Amount: $1.15 million Injuries alleged: Paraplegia Case name: Withheld Court: South Carolina Workers’ Compensation Commission Case No.: Withheld Date of settlement: Oct. 7, 2021 Most helpful experts: Janice Holloway (life care planner) Insurance carrier: Gallagher Bassett Services of Rolling Meadows, Illinois Attorneys for plaintiff: Christopher Hart of Hart Law in Columbia and Justin Bamberg of Bamberg Law in Bamberg Attorneys for defendant: Withheld

35.

Family injured by drunk driver settles suit for $1.125M

A Horry County family will receive $1.125 million in insurance settlements after being injured by a drunk driver that the family alleged had been over-served by a local drinking establishment, their attorney reports. Luke Rankin of Rankin & Rankin in Conway reports that his clients were driving home from an elementary school open house in 2016 when another driver, Katherine Lois Welker, crossed the center line and collided with their vehicle. The driver, Eric Roberts, sustained knee, back, thumb, chest, hip, and shoulder injuries and will ultimately require a hip replacement, Rankin said. His sister-in-law, Susan, suffered neck and back troubles from the incident, while her minor

child fractured a wrist. Rankin said that Straight from Philly Pizzeria & Sports Bar in Myrtle Beach had served Welker numerous alcoholic drinks prior to the crash. Sales slips established Welker’s presence at the bar, and Welker indicated that she’d been drinking at the establishment both at midday and after work. “She was drunk and, through discovery, we found out where she’d been and brought in the restaurant/bar as a defendant and collected from their coverage,” Rankin said. “She admitted it in her deposition and in her hospital exchange with nurses and staff.” Rankin said that Welker was visibly drunk in police dashcam footage taken in the wake of the crash. Under the terms of the settlement, Straight from Philly’s insurer will pay $797,000, most of it to Eric Rogers. The plaintiffs also received $278,000 under the terms of their own underinsured motorist policy, with an additional $50,000 coming from Welker’s policy. Ed Pritchard of Pritchard Law Group, which represented Straight from Philly, said the settlement was not an admission of liability and was reached simply to mitigate the risk of a trial. “It is an alcohol-related injury,” Pritchard said. “You never know what a jury is going to do with that. There were two competing stories. You don’t know who the jury is going to believe.” Pritchard said that staff working for Straight from Philly denied serving Welker any alcohol at all. He said she was apparently there with a group of coworkers, some of whom were drinking, but said that Welker was served only water. “There was some evidence that she had consumed alcohol in other locations,” Welker said. Pritchard said that there was also a dispute over the extent of the injuries in the case, particularly the need for surgery on Eric Roberts’s knee. Edward Love of King & Love in Florence represented Welker. He did not return a request for comment. The settlement was finalized in August. Jim Davis of Lindemann & Davis in Columbia served as mediator. SETTLEMENT REPORT – DRAM SHOP/MOTOR VEHICLE CRASH

Amount: $1.125 million Injuries alleged: Knee, back, thumb, chest, hip, and shoulder injuries; neck and back injuries; fractured wrist Case name: Eric Rogers v. Katherine Lois Welker; Straight From Philly Pizzeria & Sports Bar; Auto Owners Insurance Company Court: Horry County Circuit Court Case No.: 2017-CP-26-00335 Mediator: Jim Davis of Lindemann & Davis in Columbia Date settlement: August 2021 Insurance carrier: Sentinel Insurance Company for dram shop defendant, GEICO for driver defendant, and Auto Owners Insurance Company for underinsured motorist insurer Attorney for plaintiff: Luke Rankin of Rankin & Rankin in Conway Attorneys for defendants: Ed Pritchard of Pritchard Law Group in Charleston for dram shop defendant and Edward Love of King & Love in Florence for driver defendant

36

(tie). Injured cyclist settles dram shop suit for $1.1M

A bicyclist who was injured by a motorist who had allegedly been drinking at her place of employment has negotiated a $1.1 million settlement, his attorneys report. David Lail and Reynolds Blankenship of Yarborough Applegate in Charleston report that their client, John Schmidt, was cycling in Hanahan on the afternoon of Nov. 5, 2020 when he was hit by Megan Thomas after she left her job at LG’s by the Creek, a restaurant and bar in the same town. LG’s wasn’t named as a defendant in the lawsuit filed in Berkeley County Circuit Court, but its

insurer, Admiral Insurance Company, ultimately contributed $1 million to the settlement. “We sued only Thomas,” Lail said. “We did that strategically to get subpoena power to then serve a subpoena on the bar and the restaurant to determine if there was a dram shop case.” Lail said that his firm’s investigation was “able to connect the dots and figure out that she was drinking on the job” and that video surveillance footage supported their contentions that management was present and aware that Thomas was drinking. Lail said there was no dispute over the extent of Schmidt’s injuries, which included a broken leg, 15 broken ribs and a thoracic compression fracture. He said that Thomas left the scene of the incident, and so her blood alcohol level couldn’t be measured. The remaining $100,000 was provided by GEICO, which was both Thomas’s liability carrier and Schmidt’s underinsured motorist carrier. Lail said that all the insurers paid their policy limits. “In a dram shop case, video evidence is rare, but when you get it like this, it was pretty powerful,” he said. Amy McLaren of Willson Jones Carter & Baxley in Mount Pleasant represented Thomas. Zachary Stohr of Milligan & Herns in Mount Pleasant represented GEICO. Jennifer Nutter of Hood Law Firm in Charleston represented LG’s by the Creek. None returned a request for comment. SETTLEMENT REPORT – DRAM SHOP

Amount: $1.1 million Injuries alleged: Thoracic compression fracture, broken leg, 15 broken ribs Case name: Sonya Esclavon, as Limited Conservator for John W. Schmidt v. Megan Renee Thomas Court: Berkeley County Circuit Court Case No.: 2020-CP-08-02498 Date of settlement: October 2021 Insurance carrier: GEICO (at-fault driver and UIM) and Admiral Insurance Company (dram shop liability) Attorneys for plaintiff: David Lail and Reynolds Blankenship of Yarborough Applegate in Charleston Attorneys for defendant: Amy McLaren of Willson Jones Carter & Baxley in Mount Pleasant for at-fault driver, Zachary Stohr of Milligan & Herns in Mount Pleasant for UIM carrier, and Jennifer Nutter of Hood Law Firm in Charleston for restaurant/bar

36

(tie). Motorcycling couple settles dram shop claim for $1.1M

A husband and wife who were severely injured in a drunk driving crash have confidentially settled claims against the driver and bar that overserved him for $1.1 million, their attorneys report. David Yarborough and Liam Duffy of Yarborough Applegate in Charleston and Richard Hricik of Mt. Pleasant report that the driver, whose name was withheld, had consumed about 24 drinks at the bar before getting into his car, darting into incoming traffic, and crashing into the couple, who were riding motorcycles. He fled the scene and ran to his home two blocks away and wasn’t found until two days later, so his blood alcohol content at the time of the crash was never determined, Yarborough said. The husband suffered a concussion, fractured ribs, traumatic hemothorax (where blood collects between the chest wall and the lungs), a lung laceration, and shoulder, hand, and knee injuries. His wife suffered a concussion with loss of consciousness and multiple orthopedic injuries that required surgeries. The clients claimed that the defendant bar had no formal policies, procedures, training, or other protections to guard against the over-service of alcohol. Yarborough described the bar as “small and local.” “The bartender had no understanding of the most basic fundamentals that are universally taught and known by professionals in the alcohol service industry,” Yarborough said. The bar owner confirmed they had no written

18 / TOP V&S 2021 policies or training related to safe service of alcohol. Written receipts showed that the driver had purchased 24 drinks, although the owner initially argued that he’d been buying drinks for others in the bar. The couple will collect $1 million from the bar’s insurer and $100,000 from the driver’s liability insurance carrier. The clients have mostly recovered but still have issues with pain and limited ranges of motion, Yarborough said. Due to a confidentiality agreement, other details about the settlement, including the name of the bar and its attorneys, were not available. SETTLEMENT REPORT – DRAM SHOP Amount: $1.1 million Injuries alleged: Concussion, fractured ribs, traumatic hemothorax and lung laceration and shoulder, hand and knee injuries; concussion with loss of consciousness and multiple orthopedic injuries requiring surgeries Case name: Confidential Venue: Confidential Date of settlement: March 7, 2021 Attorneys for plaintiff: David Yarborough and Liam Duffy of Yarborough Applegate in Charleston and Richard Hricik of Mt. Pleasant Attorneys for defendant: Withheld

38

(tie). Family settles claim for $1.075M after fatal car crash

The family of a young mother who was killed when her car was struck by the driver of an SUV who was pulling out of her driveway will receive $1.075 million after reaching a settlement with three insurers, the family’s attorneys report. Kenneth Berger of Columbia, Andrew Johnson of Littlejohn Law in Columbia, and Jim Johnson of Greenwood report that Dorreen Johnson was driving on U.S. 178 in Greenwood County in June 2020 with her sister, Sherlyral Johnson, as a passenger. According to an accident report, the at-fault driver, Andrea Bayne, failed to yield the right of way and tried to make a right turn onto the highway. She hit the Johnsons’ car on the passenger side, causing it to run off the roadway and slam into a tree. Berger said that Dorreen Johnson was conscious for several minutes before EMTs reached the car and was pronounced dead at the scene. Sherlyral Johnson suffered broken ribs and witnessed her sister suffering in the car before first responders could arrive. Doreen Johnson, 33, worked as a certified nursing assistant and was the mother of two young sons. “Words cannot adequately capture the terror and suffering Dorreen experienced in her final moments,” Berger said. Berger said that obtaining the fullest possible

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recovery for the family required stacking together coverage from three different insurance policies: Bayne’s liability policy, Dorreen Johnson’s underinsured motorist (UIM) policy, and Sherlyral Johnson’s UIM policy. The risk of a large punitive damages verdict forced all three insurance carriers to pay not only the bodily injury limits, but also the property damage limits, Berger said. Bayne’s liability insurance provider paid $75,000. Dorreen Johnson had UIM policies with Amica covering two vehicles, each with $250,000 policy limits for bodily injury and $100,000 limits for property damage. Her family was able to stack the full policy limits of both policies, and Sherlyral Johnson was able to recover $250,000 for her bodily injuries. Sherlyral Johnson also had a UIM policy with The Hartford, from which she was able to recover $50,000. Berger said that there “wasn’t much of an argument on liability and none on damages. The only argument they had was that the defendant’s actions did not rise to the level of recklessness. At the end of the day, the damages and the facts of the case were simply too great not to pay the entirety of policy limits.” Mia Maness in Charleston represented Amica. She could not be reached for comment. SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $1,075,000 Injuries alleged: Death; broken ribs and pain and suffering Case name: Jeremy Antwon Williams, as Personal Representative of the Estate of Dorreen Elizabeth Johnson v. Andrea Bayne Court: Greenwood County Circuit Court Case No.: 2020-CP-24-00794 Date of settlement: Jan. 14, 2021 Attorneys for plaintiff: Kenneth Berger of Columbia, Andrew Johnson of Littlejohn Law in Columbia, and Jim Johnson of Greenwood Attorney for defendant: Mia Maness of Charleston

38

(tie). Late cancer diagnosis leads to $1.075M settlement

A woman who had breast cancer for at least four years before it was detected by her radiologists has settled her medical malpractice suit against the radiologists and their employers for $1.075 million, her attorney reports. Brink Hinson of Hinson, Hiller, & Padget in Columbia said that his client, who was in her late 40s, had undergone annual mammograms since 2013. By that point the cancer was already visible, but it wasn’t diagnosed until 2018, when it had reached stage 3. By then, it required not only surgery and radiation, but also chemotherapy that

wouldn’t have been necessary had it been detected when it should’ve been, Hinson said. “Our client, who herself works in the healthcare industry, was diligent in looking after her health and did her part by getting an annual mammogram,” Hinson said. “Tragically, the defendants did not meet their obligations in carefully reviewing the imaging.” Many details of the case, including the names of the parties, the defense counsel, and the venue, were withheld pursuant to a confidentiality agreement. According to the complaint, the cancer was missed because the client had been poorly positioned on the mammogram machine, causing an insufficient amount of breast tissue to be captured in the imaging. Hinson said that the radiologists should’ve recognized the insufficiency when comparing the images from year to year and brought the client back in for additional mammograms. Because of the failure, Hinson said, his client had to endure several weeks of chemotherapy and lost several years of statistical life expectancy. Hinson said that abundant medical research available because of breast cancer’s prevalence proved helpful in many aspects of the case, including demonstrating the difference between stage-1 and stage-3 cancer and the degree to which the tumor grew. “Thank goodness our client was vigilant about getting an annual mammogram,” Hinson said. “If she had skipped her 2018 exam, this case may well have been a wrongful death action.” SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1.075 million Injuries alleged: Untreated tumor that required additional treatment, reduced life expectancy Case name: Withheld Court: Withheld Date of settlement: Dec. 2021 Special damages: Approximately $600,000 Attorney for plaintiff: Brink Hinson of Hinson, Hiller, & Padget in Columbia Attorneys for defendants: Withheld

40

(tie). Gang shootout at nightclub leads to $1M settlement

The estate of a woman killed during a shootout at a Timmonsville nightclub has settled its lawsuit for $1 million, her attorneys report. Brian Mickelsen and Danny Dalton of Mount Pleasant report that in the early hours of Feb. 23, 2019, 30-year-old Anastasia Lowrey, her sister, and two friends were at Mike’s Warehouse for a concert featuring several local artists. Hundreds of people were in attendance, Mickelsen said, in-

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cluding members of two rival gangs, the 100 gang and 5 Trey Bloods. Defendant Lock Down Security and Protection, a Dalzell-based security company, was contracted to provide security-related services for the event, including patrolling the premises and deterring dangerous activity. When a fight broke out between the two groups, security guards should have escorted gang members off the premises and called law enforcement, Mickelsen said. Instead, they engaged in an altercation with the gang members, spraying tear gas and creating “absolute chaos” in the overcrowded club, as clubgoers scattered, frantically trying to escape. The fight spilled into the parking lot, Mickelsen said, and gang members began shooting at one another from inside and outside of the club. Lowrey was caught in the crossfire; a tragedy that Mickelsen said was entirely preventable. The complaint alleges numerous breaches of duty, including the defendant’s failure to check identification or conduct pat-downs at the club’s entrance. “The security company allowed violent gang members carrying deadly weapons inside a club and when a fight broke out, they thought it was a good idea to Mace the place,” Mickelsen said. “It was a recipe for disaster that left a young child without a mother.” The defendant was represented by G. Michael Smith of Conway. Smith did not immediately return a message requesting comment. SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1 million Injuries alleged: Death Case name: Lowrey v. Lock Down Security and Protection Court: Florence County Circuit Court Case No.: 2020-CP-21-01223 Date of settlement: January 2021 Attorneys for plaintiff: Brian Mickelsen and Danny Dalton of Mount Pleasant Attorney for defendants: G. Michael Smith of Thompson & Henry in Conway

40

(tie). Degloving injury leads to $1M settlement

A man who suffered a crushed hand after falling in front of a work truck has accepted a $1 million settlement, his attorneys report. Stephen Samuels and Jason Reynolds of Columbia report that their client, Charlie Buckberry, and a coworker were working for Southern Roots Tree Service on Oct. 5, 2020 when they decided to go fishing during their lunch break. Reynolds said that Buckberry was running alongside the company’s Ford F80 dump truck toward a gate when he slipped and fell partially in front of the vehicle’s front, passenger-side tire. The tire crushed his hand and caused a degloving injury, where the top layers of the skin and tissue are ripped from the underlying muscle. Southern Roots’ liability carrier paid its policy limits, Reynolds said, but the workers’ compensation carrier denied coverage. “They argued frolic and detour,” Reynolds said. “Because our client had no health insurance, we decided that pursuing the liability carrier on a Tyger River policy limits time demand would be the quickest way to get the client funds to treat his injuries. It was a real time-crunch

situation.” Reynolds said that his client is still recovering. “He’s still treating with the hopes that he will be able to save the rest of that hand and get back to work,” Reynolds said. Lawyers Weekly contacted the attorney for Southern Roots Tree Service. The attorney declined to comment on the settlement, and Reynolds requested that the attorney’s name be withheld. SETTLEMENT REPORT – NEGLIGENCE

Amount: $1 million Injuries alleged: Crushed hand, degloving Case name: Case was settled pre-suit Venue: Charleston County Mediator: Karl Folkens Date of settlement: June 3, 2021 Special damages: $486,056.83 Insurance carrier: Progressive Northern Insurance Company Attorneys for plaintiff: Stephen Samuels and Jason Reynolds of Columbia and Brian Johnson of Bluestein, Johnson & Burke in Mount Pleasant Attorney for defendant: Withheld

40

(tie). Fall from tractor leads to $1M settlement

A man who was injured after falling from the back of a tractor trailer has settled his negligence suit for $1 million, his attorneys report. Stephen Samuels and Jason Reynolds of Samuels Reynolds Law Firm in Columbia report that their client, Joshua Hicks, was loading a tractor-trailer at The State newspaper in Columbia when the truck rolled forward several feet, causing Hicks to fall out of the trailer and onto the loading dock. Hicks landed on his left side, breaking his ribs and causing a disk herniation. “When this case initially came to us, we thought it was nothing more than cracked ribs, but the injuries continued to manifest and we discovered that he had herniation in L4-5, which resulted in surgery,” Reynolds said. The truck was owned by JT Bell Trucking and insured by Progressive Mountain Insurance Company, which paid its policy limits. “I got in contact with the carrier, and they had a million-dollar policy,” Reynolds said. “We were able to get him treated through workers’ comp, which included the surgery.” SETTLEMENT REPORT — MOTOR VEHICLE NEGLIGENCE

Amount: $1 million personal injury and $7,500 workers’ compensation with waiver of the lien Injuries alleged: Broken ribs, herniated disc Case name: Case settled before any lawsuit was filed Venue: Richland County Date of settlement: April 9, 2021 Special damages: $211,0567.73 Insurance carrier: Progressive Mountain Insurance Company Attorneys for plaintiff: Jason Reynolds and Stephen Samuels of Samuels Reynolds Law Firm

in Columbia Attorneys for defendants: None (pre-suit settlement)

40

(tie). Botched trach leads to child’s death, $1M settlement

The estate of a child who died after a chief ENT resident attempted to reposition her tracheostomy tube has settled its medical malpractice suit for $1 million, its attorneys report. Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach report that on June 23, 2019, 2-year-old Allie was being treated post-op in a Charleston County pediatric intensive care unit after undergoing successful airway reconstruction. Allie and her twin brother, Daxton, were born premature. Daxton died 14 hours after birth and Allie was diagnosed with subglottic stenosis (narrowed airway). The firm said that while Allie’s surgery was supposed to enable her to breathe independently for the first time in her life, the unnecessary manipulation of her trach, especially without proper supervision by the surgeon or attending physician, led to her death. Many details of the case were withheld due to a confidentiality agreement. According to the plaintiff’s attorneys, surgeons placed a trach in a fresh stoma (surgical opening) as a temporary airway, one that Allie’s care team knew to be the only location from which she could take in oxygen and could not be manipulated during the “fresh-trach period,” five to 10 days during which the tissue surrounding the trach becomes established. But just two days after her surgery, when Allie began showing signs of breath-holding episodes and stomach muscle contractions, the chief resident theorized that the trach could be “backwalling,” the firm wrote. These common post-operation occurrences are typically resolved with medication or breathing treatments, the firm noted, but without notifying supervisors or attempting to administer a less invasive treatment, the resident unsuccessfully attempted to reposition the trach, according to the complaint. Allie’s oxygen levels and vitals immediately and rapidly began to drop, and she died within the hour, the firm wrote. “Had Allie’s care team responded to her symptoms with appropriate, non-invasive treatment and/or by timely notifying the attending physician or surgeon on duty, she would still be alive today.” SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1 million Injuries alleged: Death Case name: Withheld Court: Charleston County Circuit Court Mediator: Karl Folkens of Florence Date of settlement: Dec. 8, 2021 Most helpful experts: Dr. Kay Chang (pediatric otolaryngologist), Marsha Blount (pediatric nurse practitioner) Insurance carrier: Withheld Attorneys for plaintiff: Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach Attorneys for defendants: Withheld

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Opinions S.C. COURT OF APPEALS

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4TH U.S. CIRCUIT COURT OF APPEALS

S.C. COURT OF APPEALS

Taxation Real Property – Delinquency Sale – Notice – Rent-to-Own Although appellant alleges that she had an oral contract with her uncle to buy the Kingstree house in which she was living and that she had made some property tax payments in the past, since her uncle was the record owner, the respondent-taxing officials fulfilled their duties by sending notice of the tax deficiency to the uncle at his address in Columbia. Even if respondents failed to post notice on the property itself (after their certified mailing to the uncle was returned unclaimed), the public duty doctrine bars appellant’s claim against them. We affirm summary judgment for respondents. A tax execution is not issued against the property, it is issued against the defaulting taxpayer. Appellant argues respondents violated S.C. Code Ann. § 12-51-40(a) by mailing notices to her uncle’s mailing address rather than the property’s physical address. However, § 12-5140(a) requires the officer to mail notice of the tax sale “to the defaulting taxpayer and to a grantee of record…” Appellant was never a defaulting taxpayer or a grantee of record of the property. Appellant testified that her uncle was responsible for paying the property’s taxes and conceded she was never a grantee of record. County records indicated the uncle was the only defaulting taxpayer and grantee of record for the property. Consequently, appellant was not entitled to received mailed notice under § 12-51-40(a). S.C. Code Ann. § 12-51-40(c) requires the officer to post notice of the tax sale on the delinquent property if the certified mail required under § 1251-40(b) is returned as undelivered. § 12-51-40(c). Ordinarily, under the public duty doctrine, public officials are not liable to individuals for their negligence in discharging public duties because the duty is owed to the public at large rather than to anyone individually. However, our supreme court has recognized exceptions to the public duty doctrine for statutes that create a special duty to particular individuals. As a notice provision, § 12-51-40 creates a special duty. However, the special-duty exception to § 12-51-40 arises only in cases where the delinquent taxpayer asserts that he provided the county his correct address and the county failed to use that address. Appellant was never the defaulting taxpayer or a grantee of record for the property. Although she occasionally paid the property’s taxes in lieu of her regular payment to her uncle at his request, she conceded that her uncle was responsible for paying the property’s taxes.

The record includes a 2002 tax receipt bearing a handwritten note, allegedly written by the uncle, saying appellant was the owner and taxpayer for the property. This note does not raise even a scintilla of evidence that appellant was an identifiable taxpayer. The record contained no indication that respondents were in possession or even aware of the annotated tax bill. Moreover, the annotation did not contain a mailing address, the property’s tax bills for the following eight years were sent to the uncle and paid in his name, the uncle denied writing the note, and his name is spelled wrong twice in the note. Because the uncle remained the only record taxpayer, owner and grantee, respondents did not owe appellant a special duty under § 12-5140. Affirmed. Scott v. McAlister (Lawyers Weekly No. 011-013-22, 12 pp.) (Aphrodite Konduros, J.) Appealed from Williamsburg County Circuit Court (George McFaddin, J.) Dwight Christopher Moore for appellant; William Jenkinson and William Evan Reynolds for respondents. S.C. App.

Domestic Relations Equitable Division – Dental Practice Sale – Goodwill – Marital Asset After the plaintiff-Wife had filed for divorce, she reviewed and agreed to a contract for the sale of the retiring defendant-Husband’s dental practice; the contract specified that $424,140 of the purchase price was for goodwill. Nevertheless, no evidence supports the conclusion that any of the sale price constituted nonmarital personal goodwill. Therefore, the family court erred in not treating the entirety of the sale price as marital property. We affirm the family court’s denial of Wife’s motion for continuance and its finding as to Wife’s dissipation of funds. We reverse the family court’s finding as to goodwill. On remand, the family court shall reconsider the issues of alimony and attorney’s fees in light of our holdings herein.

Continuance

Wife’s counsel withdrew shortly before trial, but the family court denied her motion to continue. Although Wife never consented to go forward in this case, she was represented at trial by competent counsel after having parted ways with multiple prior attorneys over the course of several years. Wife’s last attorney indicated he could no longer represent Wife based on “professional considerations.” This suggests any issue arose from within the attorney/ client relationship with Wife as opposed to some outside force beyond Wife’s control. Additionally, Wife had failed to comply with various scheduling orders, and the record demonstrates Wife was ably represented by her

21 counsel and obtained certain beneficial results based on his representation. The family court did not abuse its discretion in denying Wife’s motion for continuance.

Goodwill

A business may contain two types of goodwill: enterprise, that attaching to the business itself, independent of any one individual, and personal, that attaching to the individual based on her skill and reputation. Moore v. Moore, 414 S.C. 490, 779 S.E.2d 533 (2015), adopted the viewpoint that enterprise goodwill is a marital asset subject to equitable division, while personal goodwill is a non-marital asset belonging solely to the professional. However, in this case, a value for the goodwill was set pursuant to the sales contract, and Husband was retiring altogether from the practice of dentistry. This factual scenario does not lend itself to the same type of analysis as Moore. Notably, Husband had sold the first branch of his practice in 2009. That contract also included a goodwill component. Nevertheless, the family court treated that contract’s remaining installment payments as marital property. We see no reason for treating the sale of the second branch of his practice differently. No evidence supports the conclusion that any of the sale price constituted personal goodwill. The family court erred in not treating the entirety of the sales price as marital property.

Dissipation

From 2014 through 2016, Wife withdrew a total of $246,771 from retirement accounts and testified she either (1) donated the money to the Church at which she served as a pastor or (2) used it for living expenses and attorney’s fees. Had Wife simply donated money to a charity or organization, she might argue her decision was just foolish or unwise. However, Wife’s spending time away from the family and with Prophet Johnson at the church put a strain on the parties’ marriage. Her contributions, without Husband’s assent, to the Church where she and Prophet Johnson had access to those funds, supports the family court’s determination Wife acted in bad faith. Furthermore, these withdrawals occurred during the period of time the parties were experiencing significant marital discord even though the litigation that finally resulted in their divorce was not filed until 2017. Additionally, Wife was evasive in providing documentation about these accounts in discovery and was inconsistent with her testimony about them at trial. We affirm the family court’s determination that Wife dissipated marital assets and in deducting the amount from the equitable division. Affirmed in part, reversed in part and remanded.

Dissent

(Hill, J.): I would affirm the trial court’s finding that Husband’s interest in his second dental practice was personal goodwill not subject to equitable division. The sales contract obligated Husband to continue in the practice for 60 days to assist with the transition. Husband also had to sign a fiveyear covenant not to compete. In fact, the sales contract states Husband was paid $424,140 of the purchase price “as the consideration for the Goodwill and the Restrictive Covenant.” Covenants not to compete are not marital property, even when they accompany the sale of a marital asset. Importantly, the sales contract was structured so as to acknowledge that the goodwill was owned and being sold by Husband individually, whereas the other assets of the practice were owned and sold by his professional association. While the majority is correct that Husband was retiring from practice, that weighs in favor of his claim that the goodwill portion of the sales amount represented his potential post-divorce future earnings. How the parties treated the proceeds of the earlier sale of Husband’s other dental practice location does not change the goodwill analysis. The parties may have had many reasons to treat the sales differently. Goodwill in professional dental practices like Husband’s has always been classified as personal, non-marital property. Like Moore, such decisions did not hinge on whether the business was still an ongoing concern at the time of trial. I agree that the alimony award should be reversed and remanded. Although the trial court was correct in ruling Wife had no right to any share of the $424,140 in goodwill and restrictive covenant proceeds, the proceeds should have been considered in the alimony analysis. Bostick v. Bostick (Lawyers Weekly No. 011-014-22, 14 pp.) (Aphrodite Konduros, J.) (Garrison Hill, J., concurring in part & dissenting in part) Appealed from Beaufort County Family Court (Michèle Patrao Forsythe, J.) John Ryd Bush Long for appellant; Grady Brown, Bridget Hillebrand Norton and Michael Taylor for respondent. S.C. App.

Insurance Auto – UIM Stacking – California Policy – S.C. Property, Lives or Interests A South Carolina-resident Navy sailor was temporarily in California on his way to deployment in Guam when he bought insurance for the Kia he took with him to Guam. While he was in Guam, his wife and children, who had moved back to South Carolina, were involved in an auto accident that claimed the lives of two of the three children. Since the California policy provided uninsured mo-

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torist coverage for the whole family, it insured “property, lives or interests” in South Carolina and was thus “considered to be made in the State” under S.C. Code Ann. § 38-61-10, making the policy covering the Kia stackable for underinsured motorist coverage purposes. We reverse summary judgment for the defendant-insurer. The California policy provided more than just liability coverage for a vehicle that was physically located in Guam. In addition to the car, the California policy insured the whole family. The policy provided uninsured (UM) motorist coverage protecting each family member, regardless of whether they were occupying the insured vehicle. Liability coverage follows the vehicle but UM and underinsured motorist (UIM) coverage follow the insured. The fact that the California policy insured plaintiff’s wife and children while they were living in South Carolina means the statute is satisfied. The statute is triggered when an insurance policy covers lives and interests here, and there is no doubt this policy did so. The dissent focuses on the policy’s property coverage, but that coverage is not in play here, and the statute does not ask us to look at which of several coverages may have been the “main” one the policy insured. The statute applies to policies covering property, lives, or interests in South Carolina. We must give meaning to all of those terms, not just some of them. Reversed and remanded.

Dissent

(Konduros, J.): Under South Carolina law, the California policy would be reformed to include UIM coverage1 and would permit that UIM coverage to be stacked even though California law prohibits stacking. Section 38-61-10 applies to “contracts of insurance on property, lives, or interests in this State.” The word “or” indicates we should evaluate the statute’s application to property, lives, or interests separately. While an automobile policy incidentally benefits the lives of drivers and passengers in automobiles, to construe it as “a contract of insurance on . . . lives” is strained. The only reasonable interpretation of § 38-61-10 is that the California policy is a policy on property that indirectly insures lives and interests in the limited context of automobile accidents. I am not persuaded that the Kia constitutes property in South Carolina. I would affirm. Young v. USAA General Indemnity Co. (Lawyers Weekly No. 011-015-22, 12 pp.) (Blake Hewitt, J.) (Aphrodite Konduras, J., dissenting) Appealed from Greenville County Circuit Court (Perry Gravely, J.) Richard Allen and Russell Guest for appellant; Julie Coleman Hunter and Patrick Still for respondent. S.C. App.

4TH U.S. CIRCUIT COURT OF APPEALS

Civil Rights Setting aside of jury verdict was error Where the district court lacked insight into why the jury deadlocked on an excessive force claim brought by a

detainee against a prison official, but awarded the detainee damages for his retaliation claim, it erred by assuming the two decisions were in conflict and ordering a new trial.

Background

Jason R. Jordan, a detainee in Red Onion State Prison, brought claims for excessive force and retaliation against T. Large, an officer in that prison. Jordan testified that, during a search of Jordan’s cell for contraband, Large broke Jordan’s radio and headphones. Jordan also testified that Large kicked him in the testicles while Large transported Jordan to a different cell after the search, causing Jordan significant pain and injury. Large denied that he broke Jordan’s property, that he even knew about Jordan’s complaints or that he kicked Jordan at all. The jury deadlocked on Jordan’s excessive force claim but found for Jordan on his retaliation claim. Following the jury verdict, Large moved to set aside the verdict and for a new trial under Federal Rule of Civil Procedure 59, claiming that the finding against him on the retaliation claim was irreconcilably inconsistent with the jury’s deadlock on the excessive force claim. Jordan moved for attorneys’ fees. In response to Large’s motion, Jordan moved for conditional voluntary dismissal of his excessive force claim. In that motion, Jordan argued that, assuming the jury verdict on retaliation stands, he did not seek another trial on excessive force and instead requested a final judgment upholding his retaliation claim. The district court concluded that “the jury’s verdict on Jordan’s retaliation claim is irreconcilably inconsistent with its failure to reach a verdict on his excessive force claim.” The court reasoned, by finding for Jordan on the retaliation claim, the jury must have found that Large kicked Jordan in the testicles which caused physical injury because, absent physical injury, Jordan could only recover nominal damages. And since the jury awarded $25,000 in compensatory damages, according to the district court, the jury necessarily found that Large applied more than a trivial use of force against Jordan. But the court determined that kicking Jordan in the groin in a manner involving more than trivial force would necessarily qualify as excessive force, necessitating a verdict for Jordan on that count. So the court concluded the jury’s deadlock on the excessive force count could not be squared with its verdict on the retaliation count. Thus, it set aside the jury’s verdict on the retaliation claim and ordered a new trial. A second trial followed. This time, the jury reached a verdict for Large on both counts.

Analysis

The strict court erred on a threshold issue—whether a hung jury is even a finding that a court can use to conduct an inconsistent verdict analysis. A trial court cannot reach negative inferences from a jury’s failure to reach a verdict. That approach makes sense. The court does not know what any juror was thinking, much less the jury as a whole. It should not guess what happened inside the closed quarters of the jury room. Yet that is exactly what the district court did. The jury was given a general verdict form, found Large liable on one count and awarded Jordan $25,000 in damages. But the district

court invalidated that verdict based on a jury deadlock for a different count, reasoning that the deadlock on excessive force was irreconcilable with a verdict on retaliation. The nature of a hung jury prohibits such reasoning. The motion for new trial should have been denied. And by extension, the second trial should have never happened. The court reverses the district court’s order granting a new trial, reinstates the jury verdict which found Large liable for $25,000 based on Jordan’s retaliation claim, vacates the district court’s final judgment based on the second trial and vacates the district court’s order denying Jordan’s motion for attorneys’ fees. Reversed, vacated and remanded with instructions. Jordan v. Large (Lawyers Weekly No. 001-042-22, 7 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 197855. March 4, 2022. From W.D. Va. at Roanoke (Pamela Meade Sargent, S.J.) Elaine Duross McCafferty for Appellant. Lucas W.E. Croslow for Appellee. 4th Cir.

Contract Prior settlement over royalties doesn’t bar trespass suit Where the plaintiffs were bound by a prior settlement with the defendants related to royalty claims for a defined period of time, and the plaintiffs are now pursuing trespass claims for a different time period, the district court did not err in declining to enjoin the new litigation.

Background

EQT Production Company and Equitable Resources Inc. resolved a prior class action via a settlement. Three years after entry of the final judgment and final order, plaintiffs filed a lawsuit in the Circuit Court of Wetzel County, West Virginia against EQT, alleging that EQT trespassed on their mineral estate in violation of West Virginia statutory and common law. The district court denied the motion to enforce the final judgment and final order and declined to enjoin the Wetzel County litigation. On appeal, EQT first contends that the district court failed to find that the plaintiffs are class members bound by the settlement agreement. Second, EQT argues that the district court erred in determining that the Wetzel County litigation was not a royalty claim, which the agreement would have precluded. Third, EQT asserts that the district court erred in finding that two exceptions to the Anti-Injunction Act did not apply here and that the court abused its discretion in not issuing an injunction.

Class members

EQT first claims that the district court did not treat the plaintiffs as class members bound by the agreement, which was erroneous as a matter of law. The court rejects this argument. The district court did not find that the plaintiffs were not class members. To the contrary, the district court analyzed whether the plaintiffs contravened the agreement, so it clearly assumed the plaintiffs were class members by binding them to the agreement. The plaintiffs, in fact, present themselves as class members.

The underlying claim

As part of the federal class action, the plaintiffs agreed to release EQT “from any and all claims ... for improp-

er payments of royalty claims for the time periods covered by this Amended Settlement Agreement.” EQT claims that the plaintiffs’ trespass claim in the Wetzel County litigation is a royalty claim and thus should be enjoined. The court disagrees. While there are other claims in the Wetzel County litigation discussing royalties, the trespass claim is not about royalties—it is about damage to the plaintiff’s property. Specifically, the plaintiffs allege in their Wetzel County litigation complaint that: “In violation of West Virginia Code § 22-6-8 and the common law of West Virginia, [EQT] illegally obtained permits from the West Virginia Department of Environmental Protection to drill wells on the Hoge Lease and, therefore, have trespassed on Plaintiff’s mineral estate.” That claim clearly does not mention royalties and does not fall inside the agreement’s definition of royalty claims. Furthermore, even if the trespass claim were a royalty claim, it would not be blocked by the agreement. The trespass claim is about an alleged trespass that occurred in 2013 and 2014. The agreement only releases claims for “improper payment of royalties for the time periods covered by this Settlement Agreement.” The time period covered by the settlement is Feb. 1, 2000, to Dec. 8, 2008. So, the Wetzel County litigation trespass claim is not even part of the covered period.

Anti-Injunction Act

Even if an exception to the Anti-Injunction Act did exist in this case, the district court was still not required to issue an injunction. Here, the district court weighed the factors for and against issuing an injunction and was entitled to exercise this discretion. EQT has not shown that the district court abused its discretion, and this court discerns no abuse of that discretion. Affirmed. The Kay Company LLC v. Equitable Production Company (Lawyers Weekly No. 001-043-22, 18 pp.) (Henry Franklin Floyd, J.) Case No. 21-1614. March 1, 2022. From S.D. W.Va. at Charleston (Joseph R. Goodwin, J.) David Dehoney for Appellants. James Robert Russell for Appellees. 4th Cir.

Criminal Practice Death row detainee fails to show counsel failure prejudiced him Where a detainee sentenced to death for killing a police officer established that his defense counsel were deficient for not objecting to evidence about prison conditions during the penalty phase, but the state court’s conclusion that he failed to show prejudice resulting from that failure was not unreasonable, his habeas petition was denied.

Background

A South Carolina jury convicted John R. Wood of murder after he shot and killed a police officer. During the penalty phase, Jeremy Sligh, an employee of the South Carolina Department of Corrections, testified on “the difference between life in prison without parole versus the punishment of death.” Sligh explained that prisoners in the general population typically have access to several privileges, assuming good behavior. In contrast, Sligh explained that death row prisoners are on 23-hour

22 / OPINION DIGESTS lockdown, have no access to work programs and have constrained, no-contact family visits. Still, Sligh testified that violence is more limited on death row where prisoners spend their time either behind bars or restrained. At no point did Wood’s counsel object to Sligh’s testimony. Wood was sentenced to death. After exhausting his state remedies, he petitioned the district court for a writ of habeas corpus. Among several issues, Wood raised ineffective assistance of his trial counsel for their failure to object to the state’s introduction and use of prison-conditions evidence at the penalty phase. The district court entered judgment for the state.

Analysis

The state postconviction court correctly identified Strickland v. Washington, 466 U.S. 668 (1984), as the appropriate framework to address Wood’s claim. It found (as the state concedes) that defense counsel were deficient for not objecting to the prison-conditions evidence. But the state court also determined Wood couldn’t show prejudice from this deficiency. Wood argues that the state court’s application of Strickland’s prejudice test either was objectively unreasonable or resulted in a decision based on an unreasonable determination of the facts. This court disagrees. The state postconviction court identified the “extremely aggravated” facts of Wood’s crime, along with his criminal history and the “moving” victimimpact evidence, and then weighed the effect of the prison-conditions evidence presented to the jury. Though Wood offered a mitigation case based on his mental health, it wasn’t unreasonable for the state court to have found that the substantial aggravating evidence overcame that case. Wood claims that the state court “failed to appreciate the inherently prejudicial nature” of the prison-conditions evidence and its “central role” in the state’s case. But the record convinces the court that the state court did, in fact, appreciate the troubling nature of the prison-conditions evidence. Before tackling the Strickland analysis, the court examined South Carolina case law to explain why such evidence is “problematic” and thus inadmissible. And, in a single sentence, it found Wood’s trial counsel were deficient under Strickland for failing to object to the evidence. True, the prison-conditions evidence made up a disproportionate share of the new evidence offered by the state during the penalty phase. But the state court found that Wood’s counsel countered the state’s central premise through more efficient questioning. What’s more, the defense opened the penalty phase by telling the jury that “life without parole is perhaps a more punishing penalty.” Taken altogether, the state court could reasonably conclude that the defense met its objective and scored enough points on the prison-conditions evidence to nullify the state’s presentation. Though the state court didn’t reach Wood’s desired result, this court cannot say it unreasonably applied Strickland when it weighed the prison-conditions evidence and found its effect on the verdict inconsequential. Wood’s challenges to the state court’s consideration of his mitigation evidence are also unavailing. Wood argues the court “unreasonably substituted its own judgment discounting [his] mitigation evidence” when considering his criminal history and mental health evidence. He also as-

serts that the court “unreasonably conflated” Aiken’s adaptability and prison-conditions testimony. This court disagrees. Finally, Wood contends the state court failed to reasonably apply Strickland because it didn’t acknowledge that the jury deliberated over three days and, at one point, appeared deadlocked. According to Wood, this shows that “even a tiny fraction less on the aggravating side of the scale could have made a difference” in the verdict. Yet there’s good reason why the jury’s deadlock is not as telling as Wood suggests. Just before the jurors informed the court that they were deadlocked, they asked to rehear the testimony of the expert psychiatrists. This request suggests that the mental health evidence led to the impasse, not the prison-conditions evidence. Given that there’s another reasonable explanation for the jury’s indecision having nothing to do with counsel’s effectiveness, this court won’t fault the state court for not expressly considering the jury’s deadlock in its prejudice analysis. Affirmed. Wood v. Stirling (Lawyers Weekly No. 001-044-22, 21 pp.) (Albert Diaz, J.) Case No. 20-11. March 2, 2022. From D.S.C. at Rock Hill (David C. Norton, J.) Elizabeth Anne Franklin-Best for Appellant. Melody Jane Brown for Appellees. 4th Cir.

Labor & Employment Denial of extra pay not based on drama teacher’s race Where a high school drama teacher alleged the school board failed to pay him for his tech work because of his race, but he had been paid a theater director supplement and he did not allege that any other performing arts teacher in the school system received more than one supplement, the school board prevailed on the claim.

Background

Wendell Tabb, a longtime and successful drama teacher at Hillside High School in Durham, North Carolina alleged that the school board discriminated against him on the basis of race in refusing to hire another teacher in the drama department to assist him with tech work in connection with his staging of student performances or, alternatively, in refusing to provide him with additional compensation for the tech work that he performs. He also alleged that the school board discriminated against him on the basis of race when compensating him for his “extra-duty” work in connection with other events at Hillside High School. The district court dismissed a portion of his complaint for failing to state a claim and, with respect to the remaining claims, granted the school board’s motion for summary judgment.

Motion to dismiss

Tabb had failed to allege plausibly that the school board’s failure to pay him a theater technical director supplement constituted race-based employment discrimination. While the complaint certainly alleged that Tabb worked “excessively” long hours, it did not allege that those hours were mandated by the school board as a requirement of his job. The complaint did allege that Tabb was required to “work after hours with students,” but it also alleged that he was paid for after-hours work with

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the theater director supplement. And the complaint did not allege that any performing arts teacher in the school system, regardless of the teacher’s race, received more than one supplement.

Comparator

The district court ruled that Durham School of the Arts or DSA, was not an appropriate comparator to Hillside High School because DSA has a specialized program that is, as Tabb alleged in his complaint, “part of a magnet program for arts and drama,” thus providing, as the district court concluded, “an obvious alternative explanation for its increased drama department staffing.” The court apparently confirmed this conclusion by going beyond the complaint and viewing the school’s website. Tabb argues that this also constituted error. While it was error for the district court to consult the DSA website in determining whether the complaint properly alleged that the DSA was an appropriate comparator, the error was harmless because the complaint on its face supports the district court’s conclusion that the DSA’s specialized focus on arts and drama would require that it have enhanced staffing to serve that mission.

Summary judgment

Tabb contends next that the district court erred in granting summary judgment to the school board on his claim that the school board discriminated against him based on his race in failing to hire another drama teacher to serve at Hillside High School as a theater technical director. The district court concluded that the hiring of a theater technical director to assist Tabb was not “‘part and parcel’ of employment as a high school drama teacher within [the school system].” Therefore, it reasoned, Tabb suffered no adverse employment action when the school refused to hire such a teacher. This court agrees with the district court. Moreover, Tabb failed to provide valid comparators.

Extra pay

Finally, Tabb contends that he was discriminated against in the payment of extra- duty pay for work he performed in connection with non-theater related events that took place at Hillside High School. His evidence on that claim, however, is lacking in two respects. First, the record shows that from 2009 to 2019, he received over $11,000 in extra- duty pay, while the next most compensated teacher received approximately $2,076 over the same period. More importantly, however, Tabb also failed to provide a comparator to show that he was discriminated against in the payment of extra-duty pay. Affirmed.

Concurrence/dissent

(Motz, J.): I believe that Tabb adequately alleged that the board discriminated against him by failing to pay him a supplement for the technical theater work he performed in the absence of a technical director. I would also reverse the district court’s holding that the DSA was not a proper comparator for any of Tabb’s claims. In determining that the DSA was not a proper comparator, the district court improperly weighed matters outside of the pleadings—namely, information found on the DSA’s website— against Tabb’s allegations. Tabb v. Board of Education of the Durham Public Schools (Lawyers Weekly No. 001-045-22, 23 pp.)

(Paul V. Niemeyer, J.) (Diana Gribbon Motz, J., concurring in part and dissenting in part) Case No. 20-2174. March 2, 2022. From M.D.N.C. at Greensboro (William L. Osteen Jr., J.) Quintin DeVon Ithiel Byrd for Appellant. Colin Alexander Shive for Appellee. 4th Cir.

Immigration Asylum applicant fails to show attacks were based on targeted group Where the record showed that the asylum applicant was not targeted because of her membership in a particular social group but because the assailant attacked anyone who aided his former wife, the asylum claim was denied.

Background

Veronica Toledo-Vasquez petitions this court to review an order from the Board of Immigration Appeals or BIA, denying her application for asylum. The BIA found that Veronica had not shown she was persecuted on account of her membership in her alleged particular social group, “family members of Guisela Toledo-Vasquez.”

Analysis

The question is whether substantial evidence in the record supports the BIA’s decision that Veronica was not targeted on account of her membership in the group “family members of Guisela Toledo-Vasquez.” The record would not compel a reasonable adjudicator to conclude that Veronica’s membership in Guisela’s family was anything more than incidental, tangential superficial and subordinate to another reason for Rogelio to harm her. In contrast, the record contains substantial evidence that central reasons for Veronica’s persecution included her intervening in Guisela’s and Rogelio’s marriage, aiding her sister in escaping Rogelio and assisting in Rogelio’s capture and imprisonment. As both the BIA and immigration judge noted, every threat made by Rogelio to Veronica came after her attempts to rescue Guisela from Rogelio’s abuse. Whether it was attempting to help Guisela escape when Rogelio beat her or testifying at legal proceedings, Veronica’s efforts to help Guisela enraged Rogelio and triggered his persecution of Veronica. On the other hand, the alleged basis for the persecution—the family relationship between Veronica and Guisela—was never an issue during the time Veronica spent in Mexico throughout 2002 to 2013. Nor was it an issue after she returned when she was not trying to help Guisela with her problems with Rogelio. Rogelio targeted Veronica only after her efforts to help Guisela. Supporting this conclusion is Rogelio’s treatment of other family members. Rogelio threatened Angelica only after she provided Guisela shelter. Rogelio targeted, and ultimately murdered, Francisco only after he helped Guisela escape from Rogelio’s abuse, aided the police in capturing Rogelio and protected Veronica and Guisela from the threats of Rogelio’s family members during the custody proceedings. Rogelio even hit his own mother but only after she intervened to stop him from choking Guisela. Nothing in the record suggests that any of Guisela’s family members were subjected to Rogelio’s wrath until they attempted to help Guisela. But if their family membership was the reason for Rogelio’s persecution, they should have

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been targeted long before they intervened in his affairs. Further supporting the BIA’s decision is that Rogelio treated nonfamily members who intervened the same way. Rogelio threatened Francisco’s father after he pressed the authorities to prosecute Rogelio for Francisco’s murder. He threatened Francisco’s friend, Fidencio, after Fidencio helped Francisco and the police capture Rogelio. Once again, whether family or not, Rogelio targeted anyone and everyone who aided Guisela or otherwise acted against him. If you did that, Rogelio was an equal opportunity persecutor. If you stayed out of his business, he left you alone. Veronica insists that this court’s precedent compels the conclusion that she was targeted on account of her family membership. That precedent, she points out, warns against an exceedingly narrow view of the nexus requirement and declares that there can be more than one central reason for persecution. As noted above, however, Rogelio not only persecuted Veronica and other members of Guisela’s family. He also persecuted nonfamily members who, like Veronica, attempted to help Guisela. Thus, the common denominator in who he persecuted was not family relationship; it was whether the person had sought to help Guisela or hinder him. In short, nothing in the record compels this court to conclude that this is not a private and purely personal dispute to which asylum does not apply. What’s more, Veronica cannot point us to any case in this circuit or decision from the BIA finding that the nexus of persecution is family membership when the persecutor is himself a family member. The court declines to expand asylum relief to such uncharted waters. Petition denied. Toledo-Vasquez v. Garland (Lawyers Weekly No. 001-046-22, 18 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 20-1849. March 2, 2022. From the Board of Immigration Appeals. Devon R. Senges for Petitioner. Jessica Eden Burns for Respondent. 4th Cir.

Immigration BIA erred by not considering murder of asylum applicant’s brother Where the Honduran native’s first application for asylum was denied as untimely, but he then filed a second application after his brother’s murder, the Board of Immigration Appeals or BIA, erred by refusing to reopen the application. The murder constituted a material change in circumstances.

Background

Napoleon Garcia Hernandez, a native and citizen of Honduras, petitions for review of a BIA order dismissing his appeal of the immigration judge or IJs, denial of his motion to reopen removal proceedings.

Standard

Garcia Hernandez first argues that the BIA erred by analyzing the motion to reopen his asylum application under the wrong standard. Of note, 8 C.F.R. § 1003.23(b)(1) required a petitioner to move to reopen within 90 days of the entry of a final administrative order of removal. Along with the 90-day time limitation, § 1003.23(b) (3) required that the IJ be satisfied that the petitioner presented material evidence that “was not available and could not have been discovered or pre-

sented at the former hearing” before granting the motion. Under § 1003.23(b)(4)(i), however, the 90-day filing deadline does not apply if the basis for the motion is to apply for asylum, withholding of removal or withholding under the convention against torture or CAT, and is based on “changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” Garcia Hernandez was ordered removed and denied asylum on Aug. 23, 2018. He moved to reopen on Oct. 9, 2018. Thus, Garcia Hernandez filed his motion within 90 days of the final hearing, in which case § 1003.23(b)(3) applies instead of § 1003.23(b)(4). The BIA “[affirmed] the Immigration Judge’s decision to deny reopening because the respondent has not sufficiently demonstrated that his brother’s murder represents a material change in country conditions that would affect his eligibility for asylum.” While (b)(4) requires “changed country conditions,” (b)(3)does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.

Asylum

An application for asylum must be filed within one year of the alien’s arrival in the United States. Additionally, an alien cannot file a successive asylum application after having a previous application denied. That said, “[a]n application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).” Garcia Hernandez argues that, under § 1158(a)(2)(D), the murder of his brother constitutes changed circumstances which materially affect his eligibility for asylum. He insists that the BIA and IJ ignored the murder even though it was a new instance of persecution. In Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), this court held that the asylum application deadline is “flexible if the alien can show ‘the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.’” It explained that “new facts that provide additional support for a preexisting asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past.” The BIA held that Zambrano did not apply because the changed circumstances there took place before the petitioner filed a time-barred petition even though here, the purported changed circumstances took place after the time-barred petition was filed and adjudicated. But nothing in Zambrano suggests its holding or reasoning was limited in the way the BIA suggests. Thus, Zambrano’s framework in examining changed circumstances should have been applied to Garcia Hernandez’s asylum application.

Petition for review granted. Vacated and remanded. Garcia-Hernandez v. Garland (Lawyers Weekly No. 001-047-22, 10 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 20-1678. March 2, 2022. From the Board of Immigration Appeals. Benjamin J. Osorio for Petitioner. Brian Boynton, Cindy S. Ferrier and Brendan P. Hogan for Respondent. 4th Cir.

Tort/Negligence Plaintiffs’ class counsel awarded over $10 million in attorneys’ fees Where plaintiffs’ counsel were awarded over $10 million in attorneys’ fees for their role in settling a class action arising out of Lumber Liquidators’ sale of allegedly defective flooring products, objectors failed to show that the award was excessive and violative of the Class Action Fairness Act of 2005 or CAFA.

Background

In these consolidated appeals, Diana Cantu-Guerrero and Brice M. Johnston challenge—for the second time—the district court’s award of attorneys’ fees in association with a class-action settlement. The underlying 2018 settlement related to Lumber Liquidators Inc.’s sale of defective laminate flooring products provided class members with $22 million in cash relief as well as store vouchers with a defined face value of $14 million. The district court awarded the lawyers for the MDL class members $10.08 million in attorney’s fees, to be paid from the $22 million cash fund. This court affirmed the district court’s approval of the settlement, but vacated the court’s order awarding attorneys’ fees because the court had failed to calculate the fees in accord with the “coupon” settlement provisions of CAFA. On remand, the court again awarded class counsel $10.08 million in fees.

Lodestar

This court previously observed a split of authority regarding whether CAFA authorizes use of the lodestar method in calculating attorneys’ fees where “coupon” relief makes up part of a class-action settlement. On remand, the district court concluded that the statute does sanction that approach. The court’s determination on that point is well supported by the text of CAFA and decisions of several courts of appeals. This court agrees with that prevailing interpretation of CAFA and thus approves the district court’s determination that 28 U.S.C. § 1712(b) allowed it to apply the lodestar method in this litigation.

Merits

The objectors assert that the court erred by considering the Lumber Liquidators vouchers as part of the “success obtained” for the plaintiff classes without “looking behind” the vouchers to determine their actual value, based on “coupon” redemption rates — and the objectors submit that value is $0, insofar as class counsel declined to present evidence regarding voucher redemption rates. Certainly § 1712(a) explicitly requires that, when a court opts to “attribute”—in whole or in part—its award of attorneys’ fees to “coupon” relief provided in a settlement by using the percentage-of-recovery method, the fee calculation must be based on “the value to class members of the coupons that are redeemed.” The al-

ternative allowance of the lodestar method in § 1712(b), however, contains no such directive. Moreover, the objectors overread the decisions that they rely on in support of their position, and those cases also stand apart from this one by virtue of the type of settlement relief involved. There is accordingly no express requirement—in this circuit or elsewhere—to consider “coupon” redemption rates in assessing the “success obtained” by class counsel as part of a lodestar analysis under CAFA. Rather, a district court applying the lodestar approach must carefully contemplate the makeup of the settlement at hand in deciding whether the calculated lodestar award is reasonable, and that judgment is committed to the court’s discretion. Here, the district court made a sufficiently perceptive assessment of “the Settlement as a whole” in determining that the “success obtained for the class” justified the reduced lodestar award of $10.08 million in fees. The objectors also argue that the $10.08 million attorneys’ fees award is excessive and violative of CAFA insofar as it represents 45.8% of the $22 million cash fund and exceeds the $9.9 million in cash remaining for distribution to the MDL class members. This court previously considered and rejected substantially this very position. Moreover the objectors fail in these proceedings to demonstrate that the district court’s award of fees is unreasonable or runs afoul of CAFA in any respect. Finally, the objectors maintain that the district court erred in awarding $10.08 million in attorneys’ fees because the settlement agreement limits an award of attorneys’ fees to 33.33% of the settlement fund, and that amount is more than 33.33% of $22 million. This ignores that the term “Settlement Fund,” includes “$14 million in Store-credit Vouchers.” The district court’s award of $10.08 million in fees constitutes 28% of the $36 million Settlement Fund. Affirmed. In re: Lumber Liquidators Chinese-manufactured flooring products marketing, sales practices and products liability litigation (Lawyers Weekly No. 001-048-22, 32 pp.) (Robert Bruce King, J.) Case Nos. 20-2036 and 20-2037. March 3, 2022. From E.D. Va. at Alexandria (Anthony John Trenga, J.) N. Albert Bacharach Jr. and Robert William Clore for Appellants. Steven J. Toll for Appellees. 4th Cir.

Bankruptcy Trustee fails to recover debtor’s IRS tax penalty rejected Where the trustee sued the United States to void a debtor’s tax penalty obligations to the IRS, and to recover the debtor’s prior payments to the IRS, his claims were dismissed. A “noncompensatory tax penalty that is statutorily required and properly imposed” is not “within the ambit of the ‘exchanges’ targeted in the fraudulent-transfer laws.”

Background

The Bankruptcy Code and the related state fraudulent transfer laws permit a bankruptcy trustee to void a transaction and reclaim any property transferred where a debtor incurred an obligation or transferred property for less than “reasonably equivalent value” of the obligation or property. Here, the trustee sued the United

24 / OPINION DIGESTS States to void tax penalty obligations owed by the debtor to the IRS and to recover prior payments made by the debtor to the IRS upon such obligations. The district court affirmed the bankruptcy court’s dismissal of these claims.

Sovereign immunity

Under the government’s theory, an unsecured creditor could not void a transfer or obligation against the United States by applying the act— sovereign immunity would bar such a claim. Section 106(a) of the Bankruptcy Code, however, provides that “sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section.” Subsection (a)(1) then lists several provisions under the Bankruptcy Code, including § 544, the avoidance statute invoked by the plan trustee, Richard P. Cook. In addition, under subsection (b), once the government filed a proof of claim it has “waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose.” Here, the IRS indeed filed a proof of claim over Yahweh Center’s property.

Merits

The court now turns to the merits of Cook’s argument that Yahweh Center’s tax penalties and tax penalty payments should be voided. This circuit has yet to address this issue. But in In re Southeast Waffles, LLC, 702 F.3d 850 (6th Cir. 2012), the Sixth Circuit rejected the same arguments Cook advances here. There, the bankruptcy trustee sought to recover the debtor’s earlier payments on its tax penalty obligations and to avoid the unpaid tax penalty obligations under 11 U.S.C. § 548(a)(1)(B), which is the Bankruptcy Code’s fraudulent transfer provision, and the Tennessee Uniform Fraudulent Transfer Act, which resembles North Carolina’s statute. Southeast Waffles held that tax penalty obligations were not avoidable under the Bankruptcy Code or the Tennessee fraudulent transfer statute. It noted that both statutes required an “exchange” for the obligation. The court agreed with the bankruptcy court’s conclusion that a “noncompensatory tax penalty that is statutorily required and properly imposed” was not “within the ambit of the ‘exchanges’ targeted in the fraudulent-transfer laws.” The Sixth Circuit reasoned that “noncompensatory penalties assessed and collected by the IRS do not fit neatly into the fraudulent transfer context.” According to the Sixth Circuit,

C o nt inu e d f r o m 5 ►

the firing squad option. He argued that it presented “the least painful” execution method available. “The death penalty is going to stay the law here for a while,” Harpootlian said. “If we’re going to have it, it ought to be humane.” According to officials, the death chamber now also includes a metal chair, with restraints, in the corner of the room in which inmates will sit if they choose execution by firing squad. That chair faces a wall with a rectangular opening, 15 feet away, through which the three shooters will fire their weapons. State officials also have created protocols for carrying out the executions. The three shooters, all volunteers who

fraudulent transfer laws are designed to level the playing field among creditors, yet the IRS is “an involuntary creditor” and “tax penalties arise not through contractual bargaining but by operation of statute, and no value is or can be given in exchange.” The court finds this reasoning persuasive. Applying the fraudulent transfer provisions to tax penalties would be cramming a square peg into a round hole. Since tax penalties are not obligations incurred as contemplated by the Act, it cannot be the “applicable law” required for Cook to bring this action under 11 U.S.C. § 544(b)(1). And if there is not applicable law for Cook’s § 544(b)(1) claim, the claim must be dismissed. Therefore, the district court’s dismissal of Cook’s challenge to the tax penalty obligations is affirmed. The court also affirms the district court’s dismissal of Cook’s claim with respect to Yahweh Center’s previous payments of tax penalty obligations. The district court determined that such payments were not voidable because they resulted in a dollar-fordollar reduction in the tax obligation debt and, thus, constitute “reasonably equivalent value.” This court agrees that the payment of a legitimate obligation reduces that obligation dollar for dollar and constitutes “reasonably equivalent value.” Affirmed. In re: Yahweh Center Inc. (Lawyers Weekly No. 001-049-22, 13 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 20-1685. March 8, 2022. From E.D.N.C. at Wilmington (Richard E. Myers II, C.J.) Richard Preston Cook for Appellant. Rachel Ida Wollitzer for Appellee. 4th Cir.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 28, 2022

upon due notice and deny any future such provider enrollment applications for the same.” That same day, DHHS sent Planned Parenthood a letter stating that it was “no longer ... qualified to provide services to Medicaid beneficiaries” and that its “enrollment agreements with the South Carolina Medicaid programs [were] terminated” effective immediately. Planned Parenthood and Julie Edwards, an individual who is insured by Medicaid and who planned to use Planned Parenthood for her “all [her] gynecological and reproductive health care,” filed suit, alleging that South Carolina had violated the Medicaid Act and the 14th Amendment. The district court granted the preliminary injunction. South Carolina appealed and this panel affirmed. South Carolina then petitioned for a writ of certiorari, which the Supreme Court denied. The district court subsequently granted summary judgment to the plaintiffs on Edwards’s Medicaid Act claim. The parties stipulated to a dismissal of their remaining 14th Amendment claims, following which the district court entered a declaratory judgment in favor of the plaintiffs.

Jurisdiction

South Carolina contends for the first time on this appeal that it believes this case is moot on the grounds that Edwards has not used Planned Parenthood’s services since filing her complaint and therefore faces no concrete injury if South Carolina terminates Planned Parenthood’s Medicaid provider agreement. The court does not agree. There is a substantial risk that Edwards will be harmed, given that she has previously used Planned Parenthood for gynecological and reproductive care, has seen no other providers for this care since and has made a future appointment to receive this care from Planned Parenthood. And while Edwards may not have visited Planned Parenthood as regularly as she predicted in her complaint, the frequency of medical appointments may not be so perfectly predicted in advance.

cision. Instead, the only intervening change highlighted by South Carolina is that the Fifth Circuit recently came to a different conclusion than this court. Even setting aside the fact that this court remains on the majority of a rather lopsided circuit split, it is hard to see how that could justify this court’s reconsideration of the case. Without exception, this court has understood that the resolution of a purely legal issue, absent a change in controlling law, governs subsequent panels, including in later appeals following a prior interlocutory appeal. Furthermore, the court reaffirms its prior holding. The court finds the statute creates a private right enforceable under § 1983. As such, the free-choice-of-provider provision may be enforced under § 1983 unless the Medicaid Act evinces Congress’s intent to “specifically foreclose[] a remedy under § 1983.” None of the remedies provides individual Medicaid recipients any mechanism to contest the disqualification of their preferred provider. Finally, the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), does not undermine this analysis. South Carolina interprets O’Bannon to hold that the free-choice-of-provider provision does not confer any individual rights on Medicaid recipients. But that case actually resolved an entirely different question and, to the extent that it has any application here, it only supports the existence of a private right. Affirmed.

Concurrence

In July 2018, the South Carolina governor issued an executive order directing South Carolina’s Department of Health and Human Services or DHHS, “to deem abortion clinics ... that are enrolled in the Medicaid program as unqualified to provide family planning services and, therefore, to immediately terminate them

South Carolina argues that the court should reconsider its previous panel decision and hold that Edwards cannot sue under § 1983 to enforce the free-choice-of-provider provision. In essence, South Carolina suggests that this court reverse the district court for applying a legal conclusion that this court previously set forth in a binding opinion. South Carolina points to no en banc opinion or Supreme Court de-

(Richardson, J.): I agree that the case is not moot given the facts before this court. I also continue to believe that “applying existing Supreme Court precedents requires that we find § 1396a(a)(23) to unambiguously create a right privately enforceable under § 1983 to challenge a State’s determination of whether a Medicaid provider is ‘qualified.’” At the same time, the caselaw on implied private rights of action remains plagued by confusion and uncertainty. This confusion stems from recent Supreme Court cases which cast doubt on—but fail to explicitly overrule—earlier precedent. So I am left hoping that clarity will soon be provided. Planned Parenthood South Atlantic v. Kerr (Lawyers Weekly No. 001-050-22, 25 pp.) (J. Harvie Wilkinson III, J.) (Julius N. Richardson Jr., J. concurring in the judgment) Case No. 21-1043. March 8, 2022. From D.S.C. at Columbia (Mary G. Lewis, J.) John J. Bursch for Appellant. Nicole A. Saharsky for Appellees. 4th Cir.

are employees of the Corrections Department, will have rifles loaded with live ammunition, with their weapons trained on the inmate’s heart. A hood will be placed over the head of the inmate, who will be given the opportunity to make a last statement. According to officials, Corrections spent $53,600 on the renovations. South Carolina is one of eight states to still use the electric chair and one of four to allow a firing squad, according to the Washington-based nonprofit Death Penalty Information Center. In June, the South Carolina Supreme Court blocked the planned executions of two inmates by electrocution, saying they cannot be put to death until they truly have the choice of a firing squad option set out in the state’s newly revised law.

The high court halted the scheduled executions of Brad Sigmon and Freddie Owens, writing that officials needed to put together a firing squad so that inmates could really choose between that or the electric chair. The state’s plans, the court wrote in an unanimous order, were on hold “due to the statutory right of inmates to elect the manner of their execution.” Now that a firing squad has been formed, the court will need to issue a new order for any execution to be carried out. The executions were scheduled less than a month after the passage of the new law. Prisons officials had previously said they still couldn’t obtain lethal injection drugs and have yet to put together a firing squad, leaving the 109-year-old electric chair as the

only option. Attorneys for the two men argued in legal filings that death by electrocution is cruel and unusual, saying the new law moves the state toward less humane execution methods. They have also said the men have the right to die by lethal injection—the method both of them chose—and that the state hasn’t exhausted all methods to procure lethal injection drugs. Lawyers for the state have maintained that prisons officials are simply carrying out the law, and that the U.S. Supreme Court has never found electrocution to be unconstitutional. South Carolina’s last execution took place in 2011, and its batch of lethal injection drugs expired two years later. There are 37 men on the state’s death row.

Civil Practice Patients sue to continue Planned Parenthood Medicaid services Where South Carolina terminated its enrollment agreements with Planned Parenthood because it provided abortion services, a woman who used Planned Parenthood for her gynecological care had standing to sue to enjoin the termination on the grounds it violated Medicaid’s freechoice-of-provider provision.

Background

Merits