South Carolina Lawyers Weekly April 2023

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COVER STORY: EMPLOYMENT BAR CASTS WARY EYE ON AI

p4 | EEOC sounds alarm on hiring/firing by algorithm

COMMENTARY

p13 | Four misconceptions about appeals

VERDICTS & SETTLEMENTS

p15 | The latest results in South Carolina legal actions

LAWYERS IN THE NEWS

p17 | New associations, promotions, bar discipline

COURTS

p18 | Company liable for tainted eyewash

OPINIONS

p22 | Roundup of recent South Carolina decisions

Welcome to the April issue of South Carolina Lawyers Weekly. In the pages that follow you’ll see how we’re continuing to improve our new magazine format, with increased coverage of court decisions, verdicts and settlements, and legal news of importance to South Carolina attorneys. This month we are featuring a cover story that explores the concerns the Equal Employment Opportunity Commission and local employers are raising about potential workplace discrimination resulting from the increased use of artificial intelligence, analysis of two recent 4th U.S. Circuit Court of Appeals decisions, and a profile of the legal director at South Carolina Victim Assistance Network, along with coverage of verdicts and settlements and the top opinions of the month.

I also encourage you to check out the enhanced coverage we’ve rolled out in our daily alerts and on our website in the past few weeks. You’ll find news posted on sclawyersweekly. com each day and featured in your daily alert, along with opinion summaries that are posted as we receive them.

Please continue to reach out with feedback on the changes you are seeing: We value your opinion and constantly strive to provide the content you rely on to grow your practices and keep abreast of legal developments in South Carolina.

Sincerely,

Susan A. Bocamazo, Esq. Publisher, South Carolina Lawyers Weekly

DIGITAL. IN PERSON. Expertly Focused On Today’s Legal Professional.

Employment

casts wary eye on AI

As employers increasingly use automated systems to make decisions regarding hiring, firing, promotions and pay, the U.S. Equal Employment Opportunity Commission is raising the red flag on the risks of disability, race, gender and age discrimination posed by reliance on artificial intelligence technology in managing the workplace.

On Jan. 31, the EEOC held a public hearing in Washington titled “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.”

“The goals of this hearing were to both educate a broader audience about the civil rights implications of the use of these technologies and to identify next steps that the commission can take to prevent and eliminate unlawful bias in employers’ use of these automated technologies,” EEOC Chair Charlotte A. Burrows said

in a statement. “We will continue to educate employers, workers and other stakeholders on the potential for unlawful bias so that these systems do not become high-tech pathways to discrimination.”

Joshua Van Kampen, a Charlotte employment attorney who practices in North and South Carolina, shares those concerns.

“I’m really worried about it,” Van Kampen says. “As a society, we haven’t solved the discrimination puzzle about how to root out implicit or explicit bias from hiring decisions or personnel decisions.

The notion that we’re going to turn over these hiring decisions to artificial intelligence just seems like a recipe for problems.”

While AI technology in theory could be a helpful tool in minimizing bias, the reality has proven to be far more complex, according to Sean Herrmann of Charlotte’s Herrmann & Murphy.

“If there is AI that can take some of that human subjectiveness out [of the hiring process], in theory that would have a big impact on discrimination law,” Herrmann says. “If the goal is less discrimination, there are ways that I would think companies could use [AI] to eliminate some of these biases that people have. [But] I don’t know how you ever take the human element completely out of it. To the extent that there’s this push for ‘if there’s no human discriminating, then it can’t be discrimination’ — I’m extremely suspicious of that.”

And while many companies are claiming the goal of utilizing AI is to remove human bias from employment decision-making, Van Kampen isn’t buying those claims.

“The intent of these artificial intelligence hiring programs is not to root out discrimination; it is to save employers money, by trimming down their talent and acquisition personnel,” Van Kampen says. “It’s money driven. It’s not driven with any sort of societal purpose to help root out discrimination.”

While the technology may be new, David I. Brody, president of an employment lawyers’ association in Massachusetts, sees a plaintiff’s success in a case involving AI-based decision-making as coming down to the familiar challenge of uncovering sufficient evidence of discriminatory animus.

“From the reading I’ve done, what actually makes AI different is that it is eerily capable of being just as terrible as humans,” Brody says. “So if AI is truly attempting to mimic the

human approach, then bias will be reflected in AI’s conduct as well. And there will be circumstantial evidence to show it.”

New guidelines

The public hearing conducted by the EEOC was part of the agency’s AI and Algorithmic Fairness Initiative. Launched in October 2021, the initiative is aimed at ensuring that the use of AI and other emerging technologies in making employment decisions comply with federal civil rights laws.

Last May, the EEOC reached a major milestone in the program by issuing a technical assistance document addressing how the Americans with Disabilities Act applies to an employer’s use of AI in its workforce decision-making.

Julian H. Wright Jr. of Robinson, Bradshaw & Hinson in North and South Carolina says concerns have been flagged regarding disability and reasonable accommodations with respect to AI calculations.

“Very few if any of these programs or third-party vendors offering these services are geared toward making reasonable accommodations,” Wright observes. “If there’s no way to measure whether or not a person can do a job with a reasonable

accommodation, then if a person does in fact need a reasonable accommodation, they’re not going to be one of the top five people generated by the program or the AI application.”

In its guidance, the EEOC adopts the definition for AI used in the National Artificial Intelligence Act of 2020. Under §5002(3) of the act, Congress defined AI to mean a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.”

In the employment context, AI typically relies, at least in part, “on the computer’s own analysis of data” to determine which criteria to use when making employment decisions, the EEOC guidance explains.

“AI may include machine learning, computer vision, natural language processing and understanding, intelligent decision support systems, and autonomous systems,” the technical document states.

The EEOC’s guidance defines “algorithm” as a set of instructions followed by a computer to accomplish some end.

“Human resources software and

See Page 6

“As a society, we haven’t solved the discrimination puzzle about how to root out implicit or explicit bias from hiring decisions or personnel decisions. The notion that we’re going to turn over these hiring decisions to artificial intelligence just seems like a recipe for problems.”

Joshua Van Kampen, Charlotte

Continued From Page 5

applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees,” the document states.

The EEOC guidance identifies the three most common ways in which an employer’s use of algorithmic decision-making tools “could” violate the ADA.

First, an ADA violation may occur when the employer fails to provide a reasonable accommodation necessary for a “job applicant or employee to be rated fairly and accurately by the algorithm.”

Second, an employer may violate the ADA by relying on algorithmic decision-making tools that “intentionally or unintentionally” screen out an individual with a disability, even though that individual is able to do the job with a reasonable accommodation.

Third, the EEOC’s technical guidance states that the employer’s algorithmic decision-making tool may run afoul of the ADA’s restrictions on disability-related inquiries and medical examinations.

Flawed algorithms

Van Kampen sees the use of AI in employment decisions as posing a tangible risk of misuse on the part of employers that could result in discriminatory results.

“Who created the artificial intelligence? Who created the algorithm? A person did,” Van Kampen says. “Let’s say that an employer is trying to target an algorithm and has added certain data points that they think are pertinent for a candidate. That completely ignores the notion that the criteria that they’re searching for could have a disproportionate impact on people in particular minority groups.”

Van Kampen identifies a number of ways that bias can taint an automated system should the employer

fail to take the necessary precautions.

For instance, he points to AI algorithms that rely on metrics that include prioritizing candidates who attended four-year universities.

“A lot of people that come from challenged socio-economic backgrounds may have a community college degree — an associate’s degree — before a bachelor’s degree,” Van Kampen says. “Not because they’re not smart, [but] because they couldn’t afford a four-year college institution. If the folks that tend to go to community college before going to a four-year [school] are disproportionately African American or Latino, for example, and that is a data point in your selection algorithm, then you’re going to have a potential disproportionate negative impact on people that fall in those groups.”

Brody, meanwhile, analogizes potential litigation over AI to prior litigation over civil service examinations.

“[Government employers] tried to make it a performance-based examination that was facially neutral, and [the tests] ended up being held [as] discriminatory in a number of differ-

ent ways,” Brody says. “I appreciate that AI is a new twist on an old problem, but just because there is some metrics-based tool in place doesn’t mean that suddenly [employers] are insulating themselves from bias.”

Vigilant human oversight

Wright believes it’s critical that employers be vigilant about what data is being fed into an algorithm.

“You’ve simply got to be careful about what your artificial intelligence is going to be learning from,” the North and South Carolina attorney says. “If that pool of information is defect or lacking in some way, then you’re going to get results kicked out that are lacking.”

Though Van Kampen has not yet been called on to offer counsel in a case involving AI discrimination, he attributes the lack of legal inquiries to another issue.

“I think we [are] dealing with a clientele who are largely ignorant about the use of AI in the hiring process,” he says. “Right now, there are no federal laws requiring employers to disclose its use. So people that are subjected to artificial intelligence algorithms and hiring facial recognition are very likely unaware of its use — and therefore ignorant as to its impact.”

Herrmann has similar concerns.

“I can see that it adds to this fiction that people are just cogs in the machine,” Herrmann says. “They’re not; they’re people.”

Burrows

“We will continue to educate employers, workers and other stakeholders on the potential for unlawful bias so that these systems do not become high-tech pathways to discrimination.”

- EEOC Chair Charlotte A. Burrows

The privileged information clients share with attorneys amounts to a treasure trove for hackers.

Two threat campaigns, one spreading a malware called GootLoader and the other SocGholish, targeted seven law firms in the first few months of 2023, according to global cybersecurity solutions provider eSentire’s Threat Response Unit, which

HACKERS SEE LAW FIRMS AS

EXPERTS

blocked the attacks.

The GootLoader campaign has been targeting law firm staff who download what they think is a legal document template found from search results but in reality is malware. A senior threat intelligence researcher with TRU, Keegan Keplinger, said the malware has tricked paralegals and attorneys as well as in-house legal departments of businesses. When the template

doesn’t download, they try to download the malware multiple times.

“I think they, upon trying to open it, they didn’t get anything,” Keplinger said, “so they went and downloaded it again and tried to open it again.”

GootLoader sets up fake blog posts as traps on various “legitimate but vulnerable” Wordpress sites not relating to the legal industry — websites sharing personal photography, culture, nonprofit and even some with commercial purposes. According to Keplinger, some of the sites have been abandoned for several years, leaving them vulnerable.

Keplinger said hackers also block a site’s owners and regular registered users from even viewing the faked blog posts.

“They even go a step further and block registered users from getting to those blogs so if you’re a registered user from that website, you’re actually protected from it,” Keplinger said. “Because they want

Continued From Page 7

to get those one-off people that are coming from the search engine and don’t know the broader context of the website. They’re just going to that one blog post.”

Those blog posts use hyper-specific legal search engine terms teasing templates for contracts like real estate agreements and collective agreements, as well as what appears to be a contract salary calculator.

The SocGholish malware campaign in January “poisoned websites en masse” with a pop-up that directs a website visitor to update their Google Chrome browser that tricks them into downloading the malware. One of the websites was a Miami, Florida Notary

The two campaigns’ malware creates an entry point into a network that allows hackers to act on stolen access in record time. A hacker can follow up after SocGholish to penetrate a system within 10 minutes after a

The hacker is in

The SocGholish and GootLoader threat campaigns fit the pattern of hackers casting a wide net for victims. What’s unusual about the GootLoader campaign is how it has narrowed its strategy to target almost exclusively law firms in the last year.

Public website, which legal firm employees frequent for services including general financial transactions, estates, deeds and powers of attorney.

user unknowingly lets malware onto their work PC, according to the TRU. Once one employee inadvertently lets in malware, it’s possible for an entire network to be infected.

Dan Nelson worked at Armstrong Teasdale as an attorney for 30 years and co-founded what is now the firm’s data innovation, security and privacy practice group. He earned his ethical hacker certification and built his own hacking lab to learn the technical aspects of information security before he left the practice of law to co-found Digital Silence, a security company.

Nelson noted that everyone with a computer and access to money or information is a target.

“Given the way these modern attacks occur, there is no such thing as too anonymous, as too small, or ‘Maybe I can just go unnoticed,’” Nelson said.

Keplinger noted that the information that clients entrust with law firms handle is gold to hackers with financial as well as political espionage motivations.

“There’s a lot of more sensitive information there just in general,” Keplinger said.

Trade agreements can open up interest in economic espionage while law firms filing lawsuits against

“Given the way these modern attacks occur,there is no such thing as too anonymous,as too small, or ‘Maybe I can just go unnoticed.”

-Dan Nelson

“They even go a step further and block registered users from getting to those blogs so if you’re a registered user from that website, you’re actually protected from it.”

-Keegan Keplinger

foreign states can find themselves targeted, Keplinger said.

Nelson noted that the size of a firm isn’t the greatest gauge of how concerned a firm should be about cybersecurity, but smaller firms in particular are most impacted by ransomware, which locks down a computer or even an entire network until a ransom is paid, and business email compromise, which can open the door to fraudulent funds transfers.

“Even a small firm may handle large settlement checks from time to time,” Nelson said. “Someone can get into the system and misdirect those settlement checks to a malicious party instead of your client.”

Lurking malware

Keplinger noted an emerging trend of threat campaigns in the last few years where some ransomware groups have stopped using ransomware altogether to lock down affected computers and skip to extracting data.

“And they’ll do all the same things, maybe publish them on a leak site,

-Elizabeth

call people up and threaten them to get money,” Keplinger said. “But they’re no longer dropping that ransomware and locking down computers.”

Keplinger cited another ethical hacker’s honeypot scheme where a researcher observed a hacker who followed up with a GootLoaderinfected system over a series of two days in 2022. By the end of day one, the hacker had disabled defenses and moved onto three other workstations and downloaded files.

Branded ransomware is easier to trace than leaks and threats, and Keplinger estimates that forgoing ran-

somware is a tactic to prevent the Federal Bureau of Investigation from locking down ransom attempts with sanctions.

“But if you’re doing just pure exfiltration, there’s a lot less chances to identify, so there’s nobody really to sanction,” Keplinger said.

Elizabeth Clarke, director of public relations for eSentire, noted the agility of the shadow economy of organized crime organizations devoted to hacking.

“The hackers are like any business,” Clarke said. “They adapt to the market, what’s going on in the market and obstacles.”

“The hackers are like any business. They adapt to the market, what’s going on in the market and obstacles.”

Clarke

Second autopsy done in unsolved South Carolina death probe

(AP) — A second autopsy was completed this weekend on the exhumed body of a teenager found dead nearly eight years ago on a South Carolina road, according to the family’s lawyer, after the public attention surrounding Alex Murdaugh’s murder trial boosted a mother’s search for answers in the unsolved case.

The mother’s lawyers have said there is no evidence linking Stephen Smith’s death to the Murdaugh family, and state investigators have remained tight-lipped since taking the case around the same time police said Murdaugh killed his wife and son.

But speculation following the since-disbarred lawyer’s recent life sentence for those killings helped Sandy Smith raise more than $87,000 to have her son’s body re-examined in an investigation that South Carolina Law Enforcement Division has said was never closed since the agency opened it in June 2021.

Attorney Eric Bland, who is representing the family, said in a Sunday statement that this weekend was a “bittersweet” and “trying time.” With the second autopsy completed and the investigation unfolding, Bland said Stephen can “really rest at ease.”

“Stephen for many, many years, I can only imagine, was not so much at peace in his grave,” Bland said in a video. “He probably was pounding on his coffin, saying, to anybody who could hear, ‘I was not hit by a car, but I was intentionally killed.’ And now we’ve told him we hear his voice.”

Bland’s law firm announced Monday that Sandy Smith is offering a $35,000 reward for information leading to the identification and conviction of anyone responsible in her son’s death. The announcement directed people to contact South Carolina Law Enforcement Division with any tips.

South Carolina Law Enforcement Division Chief Mark Keel has assigned extra regional agents to the homicide

investigation in hopes that knowledgeable parties might be more willing to speak now, according to a March 22 press release.

Sandy Smith has long held that her son’s death was no accident but the result of a brutal beating. Bland has said being young and gay in the South Carolina Lowcountry could not have been easy for Stephen Smith.

The 19-year-old nursing student was found dead with head injuries and a dislocated arm bent behind him in the middle of a two-lane Hampton County road on July 8, 2015. Police said it appeared he was walking for help after running out of gas. His car was found not far from the body with the gas cap removed and his wallet still inside.

The responding trooper didn’t think it was a hit-and-run. The medical examiner

who did the initial autopsy theorized his head was struck by the side mirror of a passing truck that did not stop.

Bland has said Stephen Smith didn’t make any calls on his cellphone, and his loosely tied shoes remained on his feet. The force of car wrecks often leaves people found without their shoes. The road also contained no skid marks or nearby debris, according to Ronnie Richter, another lawyer for the Smiths.

Stephen Smith went to the same high school as Alex Murdaugh’s surviving son, Buster — prompting rumors that the Murdaugh family was involved in Smith’s death. Richter emphasized last week that the legal team has no evidence connecting the death in any way to Buster Murdaugh, who has recently denied any involvement amid claims that he called baseless.

Sandy Smith holds a photo of her late son, 19-year-old Stephen Smith, on June 24, 2021, in Hampton, S.C. A second autopsy was completed on the exhumed body of Stephen Smith, who was found dead nearly eight years ago on a South Carolina road, according to the family’s lawyer on Sunday, April 2, 2023. Public attention surrounding Alex Murdaugh’s murder trial boosted Sandy Smith’s search for answers in the unsolved case. Kacen Bayless/The Island Packet via AP, File

5 QUESTIONS WITH... Meg Scoopmire

Meg Scoopmire is a shareholder and co-leader of the real estate practice group at Haynsworth, Sinkler, Boyd in Greenville. With a practice that focuses on commercial real estate, she advises clients on title matters, permitting and entitlement, financing, leasing, acquisition and disposition. Scoopmire has extensive experience drafting and negotiating real estate transaction documents, including purchase and sale agreements, deeds, mortgages, commercial leases, ground leases, easements, estoppels and subordination agreements.

A 1991 graduate of Furman University, Scoopmire earned her B.A. in political science before going on to receive a J.D. from University of South Carolina School of Law in 1998.

Scoopmire volunteers at a number of organizations including Meals on Wheels of Greenville and Crew Upstate South Carolina, and she’s a member of the board of directors for Jasmine Road and the American College of Mortgage Attorneys.

Q: What is the importance of mentorship and community in the legal profession? Who are some of the most influential mentors you’ve had, and what did they teach you?

A: Transitioning from law school to the practice of law and then building and maintaining a law practice can be difficult and challenging. There is a business to being a lawyer and managing the ins and outs of a caseload, business development,

staffing and other office matters, client expectations, and the inevitable tough [issues] that arise can be difficult. Mentorship and community are critical components for the successful navigation of all those matters and more in a career as a legal professional. I have been very fortunate to have mentors at almost every step in my professional life. It began with a local lawyer who encouraged my interest in the law during college and continues to this day. They have taught me more than I have space to answer. Most importantly, though, they validated that practicing law is challenging and can make you feel inadequate, isolated or anxious, and reminded me all along that when those difficulties arise, there is always a solution and people willing to help find it.

Q: What about real estate law initially attracted you? How has this evolved since you began practicing?

A: I enjoyed the client interaction, the organization and process of a real estate closing, the variety of matters, and the more immediate results. Those are still the aspects of my practice that I enjoy the most.

Q: What have you noted as the key differences between residential and commercial real estate law?

A: For the client, key differences can include the use of the property, purchase price, timeline of the transaction, and the level of property investigation. For the lawyer, key differences can include volume of transactions, depth and breadth of due diligence, management of the process, and the laws governing res-

idential and commercial real estate. The laws governing the two areas can be quite different, particularly related to land use, leasing, tenants, foreclosure, disclosures and construction.

Q: What is one of the most interesting cases you have worked on to date?

A: This is a tough question. I have had the opportunity to work on so many interesting and challenging projects, so choosing just one is difficult. One that comes to mind as being particularly challenging and, in the end, quite fun to work on was a project for a health care system. Our firm represented a health care system in the sale and leaseback of a portfolio of 16 medical office buildings totaling 855,276 square feet. In addition to the challenge of handling the sale of 16 distinct parcels of real estate in one

transaction, there were taxation issues, third-party tenant issues, and complicated real estate issues to be considered. Through collaboration between a team of lawyers and paralegals from our firm and the business and legal team of the client, we were able to structure a transaction [that] accomplished the client’s goals on the client’s timeline.

Q: As a co-leader and shareholder, how do you balance firm management and your own practice?

A: With lots of help from the great people around me, including the other attorneys in my office, the incredible staff that we have, and my wonderful husband who is always supportive. That combination is what allows me to retain balance while meeting the needs of clients, co-workers and family.

Four misconceptions about appeals

As an appellate attorney, my business is understanding the business of trial attorneys. But I encounter recurring misunderstandings about appeals and appellate referrals. Here’s why those beliefs are mistaken.

Misconception 1: If I refer the appeal, I’ll lose the client

Trial lawyers sometimes think this because they misunderstand the business of an appellate practice. In a bustling appellate practice, the client for business purposes is the referring attorney.

Of course, the ethical and professional duties are owed to the actual client. But the client probably won’t have repeat appeals. The person with the repeat appeals is you—the litigator.

Besides, appellate specialists aren’t looking to steal anyone’s trial work. Most became appellate specialists to focus on appeals to the exclusion of trial litigation.

Misconception 2: If I refer the appeal, I’ll miss out on the appellate fun

There’s plenty of fun to go around. Every appellate lawyer appreciates

help assembling the record. And we also want your insights on issues best suited for appeal.

Even when it comes to the briefing, I value trial counsel’s careful review of drafts. I want the facts to be impeccably accurate, and you’re the expert on those.

There’s also a chance to help with amicus coordination. Are there other groups that may care about your case? If so, help appellate counsel brainstorm and coordinate with potential amici.

And then there’s the fun part:

moots. Most appellate attorneys moot a case before oral argument. I love having trial counsel on my moot panels. You know the weaknesses in your case. Being put through the ringer by trial counsel is invaluable.

Misconception 3: Appellate attorneys are just for the appeal itself

An appellate attorney can help before a notice of appeal is ever filed.

First, in complex cases, appellate counsel may be involved as early as drafting the complaint. Later, appellate counsel can provide firepower for critical motions: motions to dismiss, class certification, and summary judgment.

Then there’s the trial itself. If you’re the kind of attorney who handles high-stakes, high-value cases, you should embed an appellate attorney in your trial team.

One reason is obvious: preservation. In the throes of trial, it’s easy to forget an objection here and a proffer there. Did you put that bench conference on the record? And did you move for a directed verdict? Outsource preservation so you can focus on the evidence.

And then there are the major legal questions dealt with at trial. Sometimes these are anticipated and planned for, like the charge confer-

ence, which appellate counsel can lead. Other issues come as a surprise. Appellate counsel can take the lead on these issues and work on bench briefs during the evening if needed, while you prepare for the next day’s evidence. It’s a natural division of labor.

Finally, there are post-trial motions. These are the last chances for preservation. And sometimes a well-considered motion can eliminate the need for an appeal altogether, or at least limit the damage. Let your opponent, who didn’t use an appellate attorney, worry about cross-appealing from the grant of your post-trial motion.

Misconception 4: I don’t need an appellate attorney because I can reuse my trial brief

I’ve heard this before from the referring attorney who lost, which came as a shock. Why assume a losing trial brief will become a winner on appeal?

The premise is that the trial judge wasn’t bright enough to get it. But the more plausible explanation is that the message wasn’t received because it wasn’t clear. I’ve seen losing trial court briefs that had all the right

pieces to the puzzle, but they were all out of order. To win on appeal, we need to bring clarity and focus on our strongest points.

And that’s before even taking account of the standard of review. A killer trial court argument fizzles out on appeal when the error is reviewed for abuse of discretion. Part of the appellate toolkit is pairing the best arguments with the least deferential standards of review.

The other great value of an appellate lawyer is giving you a fresh perspective on how to present the case. I know this value firsthand. Although my own practice is almost entirely appellate, I occasionally have my own trial court case with an appeal. When you’re the trial attorney, you can be blind to which points are salient and which are clutter.

For that reason, I always have someone else from our appellate team involved with appeals in my own cases. There’s no just escaping the blinders without an independent look from a dedicated appellate attorney.

Troy Shelton is an appellate partner in Raleigh at Fox Rothschild LLP. He partners with trial attorneys to win on appeal in state and federal courts.

Shelton

“If you’re the kind of attorney who handles high-stakes, high-value cases, you should embed an appellate attorney in your trial team.”

$1.45 MILLION SETTLEMENT

Case involving tractor-trailer wreck mediated for $1.45M

Action: Motor vehicle negligence

Amount: $1.45 million

Injuries alleged: Husband, torn rotator cuff; wife, thumb/ hand injury

Case name: Withheld

Court/case no.: Withheld

Jury and/or judge: N/A (mediated)

Date of settlement: Dec. 16, 2022

Attorney for plaintiff: Charles William Hinnant III of Ted A. Greve & Associates

Attorney(s) for defense: Withheld

Were liability and/or damages contested: Yes

Has judgment been successfully collected: Yes

$3.1 MILLION SETTLEMENT

The plaintiffs were a husband and wife driving from their home in Florida through Jasper County on I-95. For unknown reasons, a tractor-trailer had jack-knifed across I-95 blocking all lanes of travel. As the husband, who was driving their vehicle, came upon the jackknifed tractor-trailer, he safely stopped his vehicle to avoid colliding with the tractor-tailer, plaintiff’s counsel reported.

Moments after stopping their vehicle, the plaintiffs’ vehicle was rear-ended by a second tractor-trailer that failed to

stop for either the plaintiffs’ vehicle or the jack-knifed tractor-trailer, causing both catastrophic damage to the plaintiffs and their vehicle. According to plaintiffs’ counsel, the wife sustained an injury to her thumb/hand requiring surgery, and the husband sustained a torn rotator cuff, also requiring surgical repair.

The case was voluntarily mediated prior to litigation being initiated and resolved at mediation, with both trucking companies’ insurers contributing to the settlement.

Motorist who was drinking collides with other driver; $3.1M settlement results

Action: Motor vehicle negligence, dram shop

Amount: $3.1 million

Injuries alleged: Injuries included open fracture of right femur, open fracture of right humerus, fractures of right fibula, fractures of right tibia, fracture of right patella, fracture of radial head of right ulna, multiple lacerations including 20-cm scalp laceration

Case name: Halcomb, et al. v. Crafty Rooster, LLC, et al. Court/case no.: Court of Common Pleas, Horry County/ No. 2022-CP-26-04510

Jury and/or judge: N/A (settled)

Date of settlement: Feb. 16, 2023

Special damages: $1,584,650

Most helpful expert: David Eagerton, forensic toxicologist, Spartanburg

Attorney for plaintiff: Mark Bringardner of Bringardner Injury Law Firm, Charleston

Attorney(s) for defense: Withheld

On May 22, 2022, the plaintiff, age 56, was riding a motorcycle when he was hit by a drunk driver. The defendant driver had been drinking earlier in the day and went to the Crafty Rooster in Conway. While there, the defendant driver continued to drink alcohol past the point of gross intoxication. The plaintiff made allegations against the defendant driver and the Crafty Rooster for negligence, recklessness and dram shop liability.

Based on plaintiff’s counsel’s investigation and expert analysis, it was alleged that the drunk driver would have been showing signs of gross intoxication at the time he entered the Crafty Rooster. Despite the defendant’s intoxication, the Crafty Rooster admitted that the defendant was served two Bold Rock Carolina Apple Ciders (4.7 percent alcohol by volume), and one 16.9 oz. Goose Island 2019 Bourbon Co. (14.7 percent alcohol by volume). In discovery, the Crafty Rooster represented that the defendant arrived at approximately 6:48 p.m. and closed his tab at 7:31 p.m. The Crafty Rooster served the defendant the equivalent of five standard alcoholic drinks in the 43-minute timespan.

The plaintiff alleged that even if the defendant had arrived at the Crafty Rooster completely sober, the Crafty Rooster and its employees knew or should have known that the patron would be grossly intoxicated consuming that much alcohol in such a short period of time.

The plaintiff also alleged that the Crafty Rooster failed to preserve the surveillance video recordings and

other data from the night of the incident, which were requested to be preserved well before and well within the reported data retention period and prior to involvement of insurance defense counsel. The Crafty Rooster also failed to make even minimal efforts to secure the footage and allowed the data to be passively destroyed.

After leaving the Crafty Rooster, the defendant drove eastbound on SC Highway 544 and made a sudden and unsafe left turn into the plaintiff’s path of travel and crashed into him.

The plaintiff suffered very serious injuries. At the scene, the distal end of his right humerus and the distal end of his right femur were protruding out of his body. His injuries included, but not limited to, an open fracture of the right femur, open fracture of the right humerus, fractures of the right fibula, fractures of the right tibia, fracture of the right patella, fracture of the radial head of the right ulna, multiple lacerations including a 20-cm scalp laceration. The plaintiff underwent several major surgeries.

$5.4 MILLION SETTLEMENT

$5.4M settlement reached after motorcycle passenger killed in collision

Action: Motor vehicle negligence

Amount: $5.403 million

Injuries alleged: Death

Case name: Withheld

Court/case no.: Withheld

Jury and/or judge: N/A (mediated by Kip Darwin)

Date of settlement: Feb. 9, 2023

Demand: $5.403 million

Highest offer: $5.403 million

Attorneys for plaintiff: Cooper Wilson and Mullins McLeod, of McLeod Law Group, Charleston; Shaun Kent of Kent Law Firm, Charleston Attorney(s) for defense: Withheld

The plaintiff was a passenger on a motorcycle when the motorcycle was struck by a commercial vehicle from the rear. She was killed in the collision.

Plaintiff’s counsel developed evidence based on the investigation to support

$29.1 MILLION VERDICT Jury returns $29.1M verdict in mesothelioma suit

Action: Negligence and tort

Amount: $29.1 million

Injuries alleged: Mesothelioma by asbestos in talc

Case name: Plant v. Avon Products Inc., et al

Court/case no.: Richland County Common Pleas/No. 2022-CP40-01265

Jury and/or judge: Jury/Judge Jean H. Toal

Date of verdict: March 3, 2023

High-low agreement: No

Special damages: $871,356, past medical bills; $3,268,336, life care plan; $20 million, non-economic damages; $5 million, loss of consortium

Attorneys for plaintiff: Theile McVey of Kassel McVey, Columbia; Jessica Dean of DOB+S, Dallas

Attorneys for defense: Robert Thackston and Stephanie Flynn, of Fox Rothchild/Lathrop GPM (WCD); Elizabeth O’Neill, Ted

$1.15 MILLION SETTLEMENT

The plaintiff, 36, is the mother of three. She was diagnosed with mesothelioma two years ago after having no known occupational exposure to asbestos. According to plaintiff’s counsel, the only asbestos exposure she had was to talc found in body powders and makeup.

The plaintiff had baby powder used on her when she was a baby and throughout the years. She also used makeup products that contained talc.

According to plaintiff’s counsel, talc and asbestos run and grow together. As the companies were mining for talc,

their contention that the defendant driver was not paying attention to the road, was driving too fast for the conditions, and did not attempt to stop before he struck the motorcycle at a high rate of speed.

Plaintiff’s counsel alleged that the case involved both negligent and reckless conduct. The insurance company tendered all available coverage to the plaintiff.

they also scooped up asbestos. Asbestos cannot be processed out of the talc. All of the exposures to asbestos containing talc caused the plaintiff’s mesothelioma, plaintiff’s counsel argued.

Plaintiff’s counsel tried the case with Jessica Dean, Rachel Gross and Mark Buha, from Dean, Omar, Branham & Shirley of Dallas. Mary Kay and Color Techniques resolved during the trial. Whittaker Clarke & Daniels and IMI Fabi went to verdict. The verdict against Whittaker Clarke & Daniels found negligence, strict liability and breach of warranty.

Following accident, bar accused of overserving group; $1.15M settlement ensues

Amount: $1.15 million

Injuries alleged: Traumatic brain injury with subdural hematoma, skull fracture, broken jaw, broken ribs, lumbar spine fracture, pelvic fracture, broken tibia with hardware placement

Case name: Withheld

Court/case no.: Withheld

Jury and/or judge: N/A (settled)

Date of settlement: Oct. 24, 2022

Special damages: $344,282.26

Most helpful expert: David Eagerton

Attorneys for plaintiff: David Yarborough and Alexandra

Heaton, of Yarborough Applegate Law Firm; Shelly Leeke and Richard “Chip” Alexander, of Shelly Leeke Law Firm

Attorney(s) for defense: Withheld

Were liability and/or damages contested: Yes

Has judgment been successfully collected? Yes

On Jan. 29, 2022, the plaintiff was attending a farewell party with co-workers at the defendant bar. The group was served alcohol for several hours before the plaintiff and her boyfriend left the establishment. The plaintiff was the passenger in the vehicle driven by her boyfriend when they entered the Park Circle area of Charleston, where the accident occurred.

Due to their injuries, neither have any recollection of the exact details of the accident. The plaintiff was transported via EMS to MUSC hospital, where she spent several weeks in a coma and several more recovering prior to discharge, plaintiff’s counsel

reported. The plaintiff was subjected to several surgeries during her rehabilitation from the injuries sustained in the accident.

Based on the evidence secured after the accident, David Yarborough and Chip Alexander elected to pursue a dram shop recovery against the defendant bar in addition to a liability claim against the driver of the involved vehicle. After gathering the necessary evidence, a pre-suit demand was made for the policy limits from both the bar and the involved vehicle, which totaled $1.15 million. The defendant bar ultimately agreed to tender their policy limits.

Roberts and Todd Carroll, of Womble, Bond, Dickinson (IMI Fabi)

New associations

Promotions

Professional groups

J. Calhoun Watson, managing member at Robinson, Gray, Stepp & Laffitte in Columbia, has been elected a board member for the International Association of Defense Counsel.

Hunter Freeman has joined Kim, Lahey & Killough Law Firm’s Greenville office. He focuses primarily on patents, trademarks, trade secrets, contracts, licensing and copyrights.

Chris Dorsel has joined Bringardner Injury Law Firm, a Charleston-based catastrophic personal injury and wrongful death law firm

Angela G. Strickland has been elected managing partner at Bowman & Brooke’s Columbia office.

Kevin J. Malloy has been elected co-managing partner at Bowman & Brooke’s Columbia office.

Law firms

Parker, Poe, Adams & Bernstein has relocated its Charleston office to Morrison Yard, a new building overlooking the Cooper River in Charleston.

Gignilliat, Savitz & Bettis, a Columbia law firm specializing in employment law, will be moving to new office space in Forest Acres.

Randall DeWitt Williams

• 90-day suspension

Cooper C. Lynn

• Disbarred

Tiffany Jane Brown

• Reprimand

To read the full text of the above disciplinary notices, go to sclawyersweekly.com.

Freeman Dorsel Strickland Malloy Watson

“Geri-Care named itself, and no other company, as the eyewash’s distributor on the label and as the registrant to the FDA. By placing its logo on the eyewash bottle and by registering the eyewash in Geri-Care’s name with the FDA, Geri-Care intended the public to think that Geri-Care manufactured the eyewash.” Senior Circuit Judge Barbara Milano Keenan

Company liable for tainted eyewash

The 4th U.S. Circuit Court of Appeals has affirmed a products liability and warranty judgment obtained by a non-profit eye bank against two suppliers of eyewash that was later revealed to be contaminated, rendering any recovered tissue unusable.

The district court rejected the suppliers’ arguments — one said it was merely a “distributor” rather than a manufacturer, while the other claimed it was simply repeating the other’s warranty — and found them jointly and severally liable for more than $600,000.

Senior Circuit Judge Barbara Milano Keenan of the Fourth Circuit upheld the ruling, noting that the eyewash bottle and packaging listed only the supplier’s name and logo, and only it registered the product with the Food and Drug Administration.

“Although [one supplier] identified itself as a ‘distributor’ and not as a ‘manufacturer,’ a jury could not conclude on

this record that purchasers of the eyewash reasonably would have known that [it] was not the eyewash manufacturer,” Senior Circuit Judge Barbara Milano Keenan wrote.

Keenan was joined by Judges Pamela A. Harris and A. Marvin Quattlebaum Jr. in KeraLink International Inc. v. Geri-Care Pharmaceuticals Corporation (VLW 0232-045).

Contamination

KeraLink International is a non-profit corporation that operated a national network of “eye banks” in several states. Eye banks recover corneas and other eye tissue from recently deceased donors for future transplant.

While eye banks are prohibited from selling recovered tissue, they may collect certain fees for reimbursement of costs related to the removal, processing and transportation of such tissue. To facilitate the process, KeraLink bought medical supplies and equipment from various

third-party vendors, including “surgical packs” that contained “eyewash” used for irrigating eye tissue.

Of relevance to this case are custom-designed surgical packs KeraLink bought from Stradis Healthcare. KeraLink didn’t specify any particular brand of eyewash; Stradis bought eyewash from a third-party wholesaler who got it from Geri-Care Pharmaceuticals Corporation.

Geri-Care got their eyewash from another company — Kareway Products Inc. — and requested a product similar to “Bausch & Lomb Advanced Eye Care.” Geri-Care asked that its logo be placed on the bottles.

Kareway got eyewash from another company that originally made the product in Korea. Rather than test the eyewash for pathogens, Geri-Care relied on the supplier’s certification that each bottle was sterile.

Geri-Care registered the eyewash with the Food and Drug Administration. The label showed Geri-Care’s logo, said the

eyewash was “distributed by” Geri-Care and that it was a “Product of Korea.” No other company was identified on the eyewash bottles or on the FDA registration.

Stradis received individually sealed bottles at its facility. After checking that the plastic seal on each cap was secure, Stradis placed the bottles in the surgical packs with an insert listing the contents, including “sterile eye wash.” The insert also stated that Stradis manufactured and distributed the packs.

The Eye Bank Association of America notified KeraLink in 2017 that some GeriCare eyewash was potentially contaminated and told them to pull it from their inventory.

When lab testing verified that contaminants were present, KeraLink identified certain lots of Stradis surgical packs with the potentially tainted eyewash. It was later reported that corneal transplant recipients had tested positive for the pathogens after using KeraLink’s surgical packs.

The lawsuit

KeraLink sued Stradis and GeriCare in the Federal District of Maryland seeking joint and several liability for strict products liability and breach of express and implied warranty. They calculated damages $606,415.19 based on their loss of service fees, unusable surgical packs and employee time wasted.

The district court granted summary judgment to KeraLink against both defendants for product liability and breach of implied warranty, while saying only Stradis was liable for breach of express warranty.

Both defendants relied on the “sealed container defense” an affirmative defense available to sellers of defective products under certain conditions. Neither succeeded. The court said Geri-Care “held itself out” as a manufacturer, not a seller. Stradis, meanwhile, had provided an express warranty that the product was sterile.

The court also rejected arguments that the economic source rule barred

recovery, and found both defendants liable for the damages asserted by KeraLink.

This appeal followed.

Defenses rejected

Neither defendant challenged that KeraLink failed to satisfy the elements of its strict products liability claim, but instead relied on the sealed container defense and the economic source rule to bar liability.

Keenan explained that Maryland’s sealed container defense shields sellers from defective product liability with a showing that they acquired the sealed products without knowledge of defects and that they neither manufactured nor modified the product.

“A party qualifies as a ‘manufacturer’ of a product and may not invoke the sealed container defense under Maryland law when that party is … ‘an entity not otherwise a manufacturer that imports a product or otherwise holds itself out as a manufacturer,’” the judge continued.

Geri-Care said sophisticated purchasers like Stradis and KeraLink wouldn’t reasonably assume it was the manufacturer since it was listed only as a “distributor” on the bottles.

Keenan disagreed.

“Geri-Care named itself, and no other company, as the eyewash’s distributor on the label and as the registrant to the FDA,” she explained. “By placing its logo on the eyewash bottle

and by registering the eyewash in Geri-Care’s name with the FDA, GeriCare intended the public to think that Geri-Care manufactured the eyewash.”

Nor was the judge persuaded by Geri-Care’s appeals to case law that focused on whether a reasonable purchaser of a non-consumer product would identify its manufacturer.

“[T]here is no basis on which a purchaser, sophisticated or otherwise, could determine from the eyewash bottle and packaging that another entity was a manufacturer of the eyewash,” she said.

Keenan also rejected Stradis’ sealed container defense.

The descriptions Stradis included — “STERILE: Unless Open or damaged” on the packaging and “sterile eye wash” on the insert — were made separately from Geri-Care’s statements that the contents were sterile.

“Critically, Stradis has not cited, nor has this court identified, any authority holding that a party who ‘passes on’ another company’s warranty through its own, separate representation has not made an express warranty,” she explained.

Finally, Keenan agreed with the district court’s ruling that neither the economic loss rule nor the sealed container defense applied here, affirming summary judgment in favor KeraLink on its strict products liability claim against both defendants.

“Although [one supplier] identified itself as a ‘distributor’ and not as a ‘manufacturer,’ a jury could not conclude on this record that purchasers of the eyewash reasonably would have known that [it] was not the eyewash manufacturer.”

- Senior Circuit Judge Barbara Milano Keenan

Livestreaming police stop constitutionally protected

Afederal court declared a town’s ban on livestreaming certain interactions may not survive First Amendment scrutiny, and that a plaintiff who was barred from livestreaming an interaction due to the policy “plausibly alleged” a constitutional violation.

“Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental interests to survive First Amendment scrutiny,” Judge Julius N. Richardson of the 4th U.S. Circuit Court of Appeals wrote.

The court further found that because the law was unclear at the time of the

traffic stop in question, the officer’s actions were protected by qualified immunity, affirming the decision of the lower court.

Richardson authored the opinion in Sharpe v. Winterville Police Department (VLW 023-2-032) and was joined by U.S. District Judge Michael S. Nachmanoff from the Eastern District of Virginia, who sat by designation on the case.

Fourth Circuit Judge Paul V. Niemeyer authored an eight-page concurring opinion, noting that the majority opinion “hardly acknowledges the role of the Fourth Amendment in the relevant analysis and the relationship of the Fourth Amendment to other constitutionally protected rights.”

Background

Shortly after the vehicle he was in was pulled over, Dijon Sharpe started streaming to Facebook Live, a livestreaming video platform. Upon noticing this, Myers Helms of the Winterville Police Department in North Carolina attempted to take Sharpe’s phone, “reaching through Sharpe’s open car window.”

Helms and his partner informed Sharpe that he was allowed to record the stop but could not stream to Facebook Live because of concerns surrounding officer safety. The officers further stated that Sharpe could be arrested or have his phone taken away if he livestreamed

B y J a S on B oleman

“Even though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw.” Judge Julius N. Richardson

a future encounter with police.

Sharpe sued the officers in their official capacities, “effectively suing the Town of Winterville,” alleging the policy prohibiting livestreaming police encounters violates the First Amendment of the U.S. Constitution. Sharpe further sued Helms in his individual capacity.

At trial, the district court found the policy did not violate the First Amendment and awarded the defendants judgment on the pleadings. The court further found the suit against Helms in his individual capacity was barred by qualified immunity.

First Amendment claim

Richardson said Sharpe plausibly alleged the town of Winterville has a policy barring livestreaming of traffic stops, a policy which he stated “reaches protected speech.”

“[T]o survive First Amendment scrutiny, the Town needs to justify the alleged policy by proving it is tailored to weighty enough interests. The Town has not yet met that burden,” the judge wrote.

Richardson noted that for Sharpe’s claim to survive, he only needs to plausibly allege that the policy preventing livestreaming exists and that the policy violates the First Amendment. The mere facts of the case, including that the officers attempted to seize his phone upon learning Sharpe was livestreaming, were sufficient to meet the first prong, the judge explained.

As to the second point, “creating and disseminating information is protected speech under the First Amendment,” Richardson pointed out.

“[O]ther courts have routinely recognized these principles extend the First Amendment to recording — particularly when the information involves matters of public interest like police encounters,” he wrote. The judge said recording police encounters contributes to discus -

sions on government affairs, with livestreaming being one way to disseminate that information.

The town of Winterville claimed that livestreaming a traffic stop “endangers officers because viewers can locate the officers and intervene in the encounter,” and represents a “weighty enough interest” to justify the policy.

But Richardson said that, at this stage, the court “cannot yet tell” if the interest is enough to sustain the policy.

“[E]ven though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw,” he wrote.

Qualified immunity

After determining the first claim survived, Richardson turned to the individual-capacity claim against Helms, which the lower court barred due to qualified immunity.

Richardson agreed with that holding from the lower court.

“Qualified immunity protects Officer Helms unless it was clearly established at the time of the traffic stop that forbidding a passenger from livestreaming their own traffic stop violated the First Amendment. Here, no precedent in this Circuit nor consensus of authority from the other Circuits established that Officer Helms’s actions were unconstitutional,” he wrote.

After making that determination, Richardson vacated the lower court ruling on the official-capacity claim, affirmed the ruling on the individual-capacity claim and remanded the case for further proceedings.

Concurring opinion

Niemeyer agreed that the officer was entitled to qualified immunity.

However, he noted that the issues here arise “in the context of a lawful Fourth Amendment seizure – a traffic stop.”

During this stop, Sharpe refused to obey police orders to stop using his cell phone to communicate with others.

The judge explained that the restriction on using a cell-phone “was thus an aspect of the seizure.” As the Fourth Amendment regulates the legality of that restriction, officers, when conducting traffic stops, “may intrude on the liberty interests of those who have been stopped” as long as it is reasonable.

“The issue therefore should be restated, I submit, to whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others,” Niemeyer wrote. “This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion …. While the two analyses might, but need not, lead to the same conclusion, I believe that we should apply the reasonableness test of the Fourth Amendment because the restrictions about which the plaintiff complains were imposed as a part of a lawful Fourth Amendment seizure.”

“As the Fourth Amendment regulates the legality of that restriction, officers, when conducting traffic stops, ‘may intrude on the liberty interests of those who have been stopped’ as long as it is reasonable.”

- Fourth Circuit Judge Paul V. Niemeyer

To view the full list of opinion digests, please visit www.nclawyersweekly.com.

Administrative

Dock Permit – Consent Order –Contempt & Attorneys’ Fees

When the appellant-agency granted a permit for respondent Hook’s neighbor to build a dock in 2014, the agency failed to abide by a 2005 consent order, which would have required the neighbor to build a 500-foot dock straight into the water instead of a 200-foot dock in front of Hook’s property. However, in order to hold the agency in contempt, the Administrative Law Court would have needed evidence that some agency employee acted purposefully in disregarding the consent order. There was no such evidence, so we cannot uphold the ALC’s decision to hold the agency in contempt.

We reverse the contempt holding. Since the ALC’s award of costs and attorneys’ fees to the landowners was premised on the contempt holding,

we reverse that award, too. Hook asserts because the agency should be charged with knowing it agreed to the consent order, any violation of that order should be found to be willful. We cannot agree with this position in a contempt matter because willfulness is a crucial element. Hook does not provide us, nor could we find, any South Carolina case providing that an entire agency is charged with knowledge of an employee’s actions for purposes of willfulness in a contempt finding as he asserts. Therefore, the ALC erred in finding the agency’s behavior was willful and thus holding it in contempt.

Hook v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 011-018-23, 23 pp.) (Aphrodite Konduros, J.) Appealed from the Administrative Law Court (Phillip Lenski, ALJ) Bradley David Churdar for appellant; Mary Duncan Shahid and Angelica Colwell

for respondent; Phillip Patterson, pro se. S.C. App.

Arbitration

Nursing Home Admission Contract –Power of Attorney – Sanction

Even if the date on the nursing home admission contract is incorrect, it is not material. Since plaintiff had her brother’s general power of attorney and since plaintiff does not dispute that she signed the contract, the contract’s arbitration provision – which had an opt-out box that was not checked – is binding.

We reverse the circuit court’s denial of defendants’ motion to compel arbitration; remanded.

Plaintiff alleges that defendants’ negligence led to her brother’s death. The brother’s power of attorney gave plaintiff the power “[t]o do and perform all and every act, deed, matter, and thing whatsoever; in and about my

estate, property and affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person, if personally present.” This broad language is unambiguous, and it allowed plaintiff to bind her brother to arbitration.

Plaintiff did not deny she signed the nursing home’s admission agreement, and she did not check the opt-out box of the arbitration provision from the admission agreement. Therefore, the accuracy of the date next to the signatures on the admission agreement is immaterial to whether plaintiff formed an agreement with the nursing home. Plaintiff’s signature demonstrates she understood the contents of the admission agreement, and the absence of a mark in the arbitration provision’s optout box demonstrates she assented to be bound by it.

Nothing in the language of the arbitration provision demonstrates lack of mutuality. Each party agreed in the arbitration provision to arbitrate claims, which is adequate consideration.

We hold the arbitration provision in the admission agreement is enforceable.

To the extent the circuit court denied the nursing home’s motion to compel as a sanction under Rule 11, SCRCP, this was error. In the circuit court’s Form 4 order denying the motion to compel arbitration in this case, the court did not recite any reason the nursing home or its attorney should be sanctioned. Accordingly, we find Rule 11 was not the basis of the motion’s denial, nor would a denial of the motion have been an appropriate sanction if it was found the nursing home or its attorney had violated Rule 11.

Reversed and remanded.

Hackworth v. Bayview Manor, LLC (Lawyers Weekly No. 012-011-23, 8 pp.) (Per Curiam) Appealed from Beaufort County Circuit Court (Edgar Dickson, J.) Todd Darwin and Walker Barnes for appellants; Kenneth Luke Connor, Christopher Caleb Connor, Anne

Katharine Moore and Allen Keith McAlister for respondent. S.C. App. Unpub.

Attorneys

Discipline – Definite Suspension –Failure to File or Pay Taxes

While the respondent-attorney was caring for his aging parents – one of whom was suffering deteriorating physical and mental health as her Alzheimer’s disease progressed – he became addicted to alcohol. During this several-year period, respondent failed to file or pay state income taxes. After being charged with four misdemeanors as a result of his failure to file, respondent filed and paid the taxes, pled guilty to one misdemeanor, successfully completed all conditions of his sentence, went to rehab, got sober, and became a mentor to others in recovery. Although we are sympathetic to respondent’s personal difficulties, we find a definite suspension is warranted.

We suspend respondent from the practice of law in this state for a period

of 90 days. Respondent shall pay the costs incurred in this matter.

In re Williams (Lawyers Weekly No. 010-017-23, 3 pp.) (Per Curiam) Kelly Arnold and Jeffrey Silverberg for the Office of Disciplinary Counsel; Peter Demos Protopapas and George Michael Pappas for respondent. S.C. S. Ct. Attorneys

Discipline – Disbarment –Misappropriated Funds

The respondent-attorney admits that he (1) misappropriated client funds, (2) failed to hold unearned fees in trust, (3) failed to refund unearned fees, (4) failed to make promised payments to the trustee of a bankrupt client, (5) failed to adequately communicate with clients, (6) failed to diligently pursue client matters, and (7) failed to timely respond to notices of investigation. This court has never regarded financial misconduct lightly, particularly when such misconduct concerns expenditure of client

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funds or other improper use of trust funds.

We accept the agreement for discipline by consent and disbar respondent. Respondent shall enter into an agreement with the Commission on Lawyer Conduct to pay (1) $12,000 in restitution to Clients in Matter A; (2) $10,000 in restitution to Client C; (3) $133,906.55 to the Lawyers’ Fund for Client Protection; and (4) the costs incurred in the investigation and prosecution of this matter by the Office of Disciplinary Counsel and the Commission. Respondent shall also surrender his Certificate of Admission to the Practice of Law to the clerk of this court. Prior to seeking readmission, respondent must attend the Legal Ethics and Practice Program Ethics School and Trust Account School.

In re Lynn (Lawyers Weekly No. 010016-23, 8 pp.) (Per Curiam) John Nichols and Ericka Williams for the Office of Disciplinary Counsel; Cooper Lynn, pro se. S.C. S. Ct.

Attorneys

Discipline – Public Reprimand –Fraudulent Notary Attestations

The respondent-attorney has admitted that, on more than one occasion, she signed legal documents on behalf of her client(s) and notarized the signature purportedly attesting that her client(s) signed the document. Respondent also allowed her employee, a non-lawyer under her direct supervision, to notarize respondent’s signature on behalf of her client(s). Respondent’s conduct violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 3.3(a)(1) (prohibiting false statements of fact to a tribunal); Rule 4.1(a) (prohibiting false statements of fact to a third person); Rule 8.4(a) (prohibiting violations of the Rules of Professional Conduct); Rule 8.4(d) (prohibiting conduct involving dishonesty); Rule 8.4(e) (prohibiting conduct prejudicial to the administration of justice). Respondent

admits her misconduct is grounds for discipline.

We accept the agreement for discipline by consent and publicly reprimand respondent.

In re Brown (Lawyers Weekly No. 010015-23, 3 pp.) (Per Curiam) Ericka Williams and Phylicia Coleman for the Office of Disciplinary Counsel; Tiffany Jane’ Brown, pro se. S.C. S. Ct.

Criminal Practice

CSC with a Minor – Solicitor’s Closing Argument – First Person

In his closing argument, the deputy solicitor should not have used the phrase “what was compelling to me” when referring to the victim’s testimony; however, defendant’s due process rights were not violated.

We affirm defendant’s conviction for second-degree criminal sexual conduct with a minor.

Defendant is the minor victim’s stepfather. The victim testified that defendant tried to have intercourse with her but was unable to do so because he was unable to achieve an erection. She testified that defendant told her about this health issue.

The deputy solicitor properly stressed to the jury that the victim had no other way to know about defendant’s erectile dysfunction. While he should not have used the phrase “what was compelling to me,” neither his use of the first person nor his use of the past tense constituted improper vouching in this case.

The deputy solicitor used the phrase in the context of explaining to the jury that he had joined the case only recently and learned about it along with the jury. Viewed in the proper context, therefore, the deputy solicitor’s use of the past tense was actually to lead the jury to focus on the evidence presented to them, not to improperly harken back to his unique knowledge of some event or proceeding outside their presence.

Even with the unnecessary use of “to me,” we see minimal risk the jury would perceive the deputy solicitor stepping

out of his role as an advocate. The point of his statement was to highlight the importance of evidence that the victim knew defendant suffered from erectile dysfunction. The deputy solicitor was correct to stress that if being sexually assaulted was the only way she knew that the state’s case was essentially proven.

The deputy solicitor’s statement, therefore, was directly tied to evidence admitted at trial. By using the phrase “was compelling to me,” the deputy solicitor did no more than tell the jury he believed that this evidence—heard by the jury—was important to the jury’s decision. That is not vouching.

Affirmed.

State v. Busse (Lawyers Weekly No. 010-014-23, 9 pp.) (John Few, J.) Appealed from Newberry County Circuit Court (Donald Hocker, J.) Vicki Doutsogiannis and James Ross Snell for petitioner; Alan McCrory Wilson, Donald Zelenka, William Blitch, John Benjamin Aplin and David Matthew Stumbo for respondent.

S.C. S. Ct.

Criminal Practice

Murder – Prosecution Expert – Cell Phone Data

Where sheriff’s Sergeant Brandon Letterman (1) shadowed another investigator before becoming a computer and cell phone forensics analyst, (2) had been in that position for seven months by the time of defendant’s trial, (3) had prior field experience in numerous investigations, and (4) had been trained by the manufacturers of GeoTime and Cellebrite to use their programs to extract cell phone data for analysis in prior investigations, the circuit court did not abuse its discretion in finding Sergeant Letterman had the necessary training and expertise to be qualified as an expert in cell phone forensic examination and mapping.

We find no error in defendant’s murder conviction.

The state did not seek to have Letterman testify regarding matters beyond his level of skill, training, education, or experience.

Notably, Letterman’s testimony was narrowly focused on his examination of phone records obtained from cellular providers— an area in which he had the necessary knowledge and experience. His testimony never ventured into more complex areas of forensic mapping which may indeed have required greater training and expertise than Letterman possessed. Moreover, the exhibits Letterman discussed during his rebuttal testimony were “call detail records that were sent from the . . . cell phone company” that had already been admitted into evidence without objection earlier in the trial.

Defendant believed her estranged husband, the victim, had sold their children’s Christmas gifts and used the proceeds to buy drugs; in addition, the victim apparently posted sexually explicit photos of defendant on Facebook. Defendant made threats against the victim, and he was found dead the next morning with injuries consistent with having been struck by a vehicle.

Even though defense expert Tom Slovenski testified exclusively about defendant’s phone, the trial court did not err in allowing rebuttal testimony from Sergeant Letterman that included references to information gleaned from the phone of defendant’s companion, Brandon Blackwood.

Slovenski used cell phone data to opine that defendant was not in Cowpens at the time of the murder. Letterman was properly allowed to testify in rebuttal that certain cell phone data could have been the result of defendant turning off her phone or her battery going dead between the hours of 11:00 p.m. and 5:00 a.m. Letterman referred to Blackwood’s phone only to explain that texts Blackwood sent to defendant – the last of which was sent at 11:26 p.m. – loaded onto defendant’s phone at 2:09 a.m., along with eight other texts.

Letterman’s testimony addressing the phone records supported the state’s theory that defendant’s phone was powered down at key times throughout the night. This properly rebutted Slovenski’s testimony suggesting defendant’s phone was in Pacolet all night and could not have been in Cowpen when the victim was killed.

Affirmed.

State v. Wright (Lawyers Weekly No. 012012-23, 14 pp.) (Stephanie McDonald, J.) Appealed from Spartanburg County Circuit Court (Keith Kelly, J.) Jordan Christopher Calloway and Robert Michael Dudek for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Edgar Salter and Barry Joe Barnette for respondent. S.C. App. Unpub.

Criminal Practice

Supervised Release – Violation of Conditions – ‘Participate’ in Program – New Condition

Where a condition of defendant’s supervised release required him to “participate” in a sex offender treatment program, he did not fail to participate simply because he broke a program rule.

Nevertheless, we affirm the revocation of defendant’s supervised release and the imposition of lifetime supervision. We vacate one clause of a new special condition and remand for entry of a modified judgment striking that clause.

There is a difference between participating in something and perfect compliance with the rules of that thing. Here, the treatment provider itself did not consider defendant’s rules violation to be disqualifying. To the contrary, by stating it would discuss defendant’s behavior during an upcoming group therapy session, the provider assumed defendant’s continuing participation.

Because the district court identified no other basis for concluding defendant violated the participation condition, its determination on that point was legally erroneous.

However, in addition to requiring defendant to participate in a sex offender program, the conditions of his supervised release also forbade him from possessing audio or visual depictions containing sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A).

During defendant’s supervised release, his probation officer learned that he had been discussing sexual fetishes and exchanging pictures of his erect penis for

photos of women’s breasts on social media. This not only broke the rules of the sex offender treatment program, but it also violated the condition of release that forbade him from possessing sexually explicit materials.

Both violations found were based on the same conduct, and we see no reason to believe the court would not have revoked defendant’s supervision had it properly classified his undisputed behavior as one violation rather than two. We thus hold the district court did not exceed its discretion in revoking defendant’s supervised release.

The district court imposed a new condition on defendant. Clause 1 of the new condition says defendant “must not possess, access, subscribe to, or view any videos, magazines, literature, photographs, images, drawings, video games, or Internet web sites depicting children or adults in the nude and/or engaged in sexual activity. . . .”

Special conditions of supervision may restrict only as much of a person’s liberty as reasonably necessary to further the purposes of sentencing, yet clause 1 has breathtaking reach. By its terms, clause 1 covers seemingly any visual or written medium in which any person is “depict[ed]” either “in the nude” (a term that goes undefined) or “engaged in sexual activity” (ditto). On its face, this condition would prevent defendant from watching a great many things on network television and counsels strongly against ever turning on HBO. It also prohibits defendant from viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo’s David, or Botticelli’s Birth of Venus.

Moreover, clause 1 covers types of materials (literature, video games, and magazines) that defendant does not appear to have ever used to further illegal conduct and prohibits any depictions of nudity even though all of defendant’s prior violations involved nudity of a sexually prurient nature. Because clause 1 imposes a greater deprivation of liberty than reasonably necessary, the

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district court exceeded its discretion by imposing it.

Finally, the district court’s imposition of lifetime supervision was recommended by the Federal Sentencing Guidelines upon defendant’s initial conviction for distribution of child pornography. Having concluded defendant breached the court’s trust—and, in doing so, squandered the sentencing court’s initial leniency on this point—the district court did not act unreasonably in imposing the duration of supervision the Guidelines had recommended in the first place.

Affirmed in part; vacated and remanded in part.

United States v. Cohen (Lawyers Weekly No. 001-037-23, 12 pp.) (Toby Heytens, J.) No. 21-4612. Appealed from USDC at Charleston, S.C. (Bruce Hendricks, J.) Jeremy Thompson for appellant; Elliott Bishop Daniels, Corey Ellis and Andrew de Holl for appellee. 4th Cir.

Criminal Practice

PCR – Ineffective Assistance – Prison Attire with Shackles

Petitioner’s trial counsel provided ineffective assistance when counsel failed to object when petitioner appeared at trial in prison attire and had his shackles removed in the presence of the jury. Overwhelming evidence is only one factor to consider when determining whether a petitioner has been prejudiced.

We reverse the post-conviction relief court’s denial of the petition and remand for a new trial.

At his trial for operating a motor vehicle in violation of the Habitual Traffic Offender Act, petitioner wore, not only prison attire with the name of the prison stamped on the back, but also handcuffs and shackles. Petitioner’s leg irons were removed in front of the jury. Petitioner’s trial counsel did not object.

The PCR judge found no prejudice because there was overwhelming evidence against petitioner.

However, the existence of overwhelming evidence does not automatically preclude a finding of prejudice. Rather, in a PCR court’s analysis of prejudice, the strength of the state’s case is one significant factor the PCR court must consider—along with the specific impact of counsel’s error and other relevant considerations—in determining whether the petitioner has met his burden of proving prejudice. For the evidence to be overwhelming such that it categorically precludes a finding of prejudice, the evidence must include something conclusive, such as a confession, DNA evidence demonstrating guilt, or a combination of physical and corroborating evidence so strong that the Strickland standard – a reasonable probability the factfinder would have had a reasonable doubt – cannot possibly be met.

Here, there was no attempt by the PCR court to balance the impact of petitioner’s forced appearance at his trial in prison clothing against the strength of the state’s evidence against him.

Nevertheless, the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is justified by an essential state interest—such as interest in courtroom security— specific to the defendant on trial.

We find petitioner’s objection to his “attire” encompasses his handcuffs and shackles. Balancing the impact of petitioner’s forced appearance at his trial in prison clothing visible to the jury against the strength of the state’s evidence against him, there is a reasonable probability that, but for trial counsel’s failure to object to his appearance at this trial in prison clothing, the result of the proceeding would have been different. Thus, we find trial counsel was ineffective for not objecting to petitioner proceeding to trial dressed in prison attire and for not requesting a continuance to provide proper clothing for petitioner.

Reversed and remanded.

Ryals v. State (Lawyers Weekly No. 011016-23, 6 pp.) (Paula Thomas, J.) Appealed from Berkeley County Circuit Court (Michael Nettles, J.) David Alexander for

petitioner; William Blitch and Danielle Dixon for respondent. S.C. App.

Insurance

Auto – UIM – Stacking – ‘Involved’ –Remote Unlocking

Plaintiff was struck by an underinsured vehicle while he was walking to his own vehicle; however, at the time of the accident, plaintiff had not yet reached his vehicle or physically engaged with it besides unlocking it remotely from across the parking lot. Consequently, plaintiff’s vehicle was not “involved in” the accident within the meaning of S.C. Code Ann. § 38-77-160 as that term was defined in Merck v. Nationwide Mut. Ins. Co., 455 S.E.2d 697 (S.C. 1995): “To relate to or have an effect on . . . to draw in as a participant . . . [to] implicate, include, affect.”

We affirm the district court’s grant of summary judgment for the defendant-insurer on plaintiff’s declaratory judgment claim, in which he sought a declaration that he could stack his underinsured motorist coverage.

Since plaintiff was not “in, on, getting into or out of” his vehicle at the time of the accident, he was also not entitled to relief under the occupancy provision of his policy.

Mims v. USAA Casualty Insurance Co. (Lawyers Weekly No. 003-008-23, 5 pp.) (Per Curiam) No. 21-1654. Appealed from USDC at Florence, S.C. (Joseph Dawson, J.) Thomas Rode for appellants; John Robert Murphy for appellee. 4th Cir. Unpub.

Municipal

Civil Rights – Takings – Real Property – Civil Practice – Statute of Limitations

The three-year statute of limitations applicable to the plaintiff-developer’s takings claim under 42 U.S.C. § 1983 began to run when, in 2015, the developer began

purchasing land pursuant to the defendant-town’s special use permit, which required the developer to either set aside a portion of its development for low-income housing or pay a fee in lieu of the set-aside. The developer’s 2019 complaint was not timely filed.

We affirm the district court’s grant of the town’s motion to dismiss.

Section 1983 injuries arising from alleged takings accrue when the plaintiff becomes aware of the governmental conduct constituting the taking.

The fact that the special use permit did not require and simply permitted the developer to develop the land for the use described in the application (subject to the condition at issue) is hardly noteworthy— permitting a particular use is an essential feature of any permit. Thus, when the developer learned of the special use permit condition on its recently acquired land, its takings claim became actionable.

In North Carolina, the “continuing wrong doctrine” extends the limitations period until the violative act ceases. In other words, the applicable limitations period starts anew in the event that an allegedly unlawful act is repeated.

In arguing for the application of this doctrine, the developer conflates the nature of its state and federal law claims. While the essence of the developer’s state return-offees claim is arguably the unlawful fee payments exacted, its § 1983 injury was inflicted by the special use permit condition requiring the developer to set aside part of its property or pay the fee-in-lieu. Hence, any violation of the developer’s constitutional rights by the town would have occurred prior to when the developer actually paid the fee installments. As the district court put it, “The payments were exactly what the continuing wrong doctrine is not: the continual ill effects from an original violation laid out in the [special use permit].”

Affirmed.

Concurrence

(Rushing, J.) The developer’s federal claims allege the town imposed an unconstitutional condition on its permit—a single act. The developer’s payments pursuant to

that permit were not repeated constitutional violations but rather continual ill effects of the original violation alleged.

Epcon Homestead LLC v. Town of Chapel Hill (Lawyers Weekly No. 001-038-23, 15 pp.) (Roger Gregory, C.J.) (Allison Jones Rushing, J., concurring in the judgment) No. 21-1713. Appealed from USDC at Greensboro, N.C. (Carlson Tilley, S.J.) Jeffrey Lawrence Roether and William Brian for appellant; Dan Hartzog and Katherine Barber-Jones for appellee. 4th Cir.

Schools & School Boards

IDEA – Least Restrictive Environment – Remedy – ALJ’s Findings –Regularly Made

Plaintiff’s autistic daughter, A.C., was moved from a regular high school to a high school for children with cognitive disabilities. An administrative law judge determined that the defendant-school board should have set out benchmarks or “measurable criteria that [A.C.] must meet in order for the IEP [(individualized education plan)] team to consider . . . a change to a lesser restrictive environment than [a] separate school.” The ALJ did not delegate her authority when she ordered the school board to add such criteria to A.C.’s IEP.

We affirm the district court’s decision, which upheld the ALJ’s ruling.

Even the most diligent of reviewing courts is likely to be less familiar with a child’s case and the substance and the details of educational programs than the school officials and parents who deal with such matters regularly. We thus discern no abuse of remedial discretion on the part of the district court in allowing the school board to fashion “benchmark(s) and criteria” in A.C.’s IEP indicating when she may move on from Metro School. We cannot run the school system from this distance. Lacking the background to know precisely which benchmarks and criteria would be suitable in A.C.’s case, the district court and ALJ reasonably looked to the school district to proceed in good faith to meet its statutory responsibilities.

Furthermore, the ALJ’s findings were regularly made. Plaintiff takes no issue with the

process afforded her by the ALJ prior to the written decision. The ALJ took her time in this case and made findings that shed light on her reasoning.

The ALJ made nuanced factual findings, ruling in plaintiff’s favor on two issues and in the school board’s favor on others. Moreover, the ALJ spotted that one of the school board’s assertions was “contradict[ed]” by evidence. The context of the ALJ’s balanced decision lends additional support to the school district’s contention that she “g[a]ve careful consideration” to plaintiff’s witnesses and evidence.

Based on the extensive process plaintiff received in the handling of her case, as well as the detail provided in the ALJ’s written decision, we affirm the district court’s determination that the ALJ’s findings were regularly made.

Affirmed.

Bouabid v. Charlotte-Mecklenburg Schools Board of Education (Lawyers Weekly No. 001-035-23, 19 pp.) (Harvie Wilkinson, J.) No. 22-1048. Appealed from USDC at Charlotte, N.C. (Robert Conrad, J.) Kelli Lorraine Espaillat, Keith Howard and Carla Fassbender for appellant; Ashley Frances Leonard and Christopher Campbell for appellee; Ellen Saideman, Selene AlmazanAltobelli, Deborah Stagner and Stephen Rawson for amici curiae. 4th Cir.

Taxation

Sales Tax Exemptions – Machine & Pollution Control Machine – Produce Processing Facility

Although the respondent-taxpayer uses various items in its produce processing facility, those items do not meet the regulatory definitions that would allow the taxpayer a sales tax exemption as “machines” or “pollution control machines.”

We reverse the Administrative Law Court’s decision to allow respondent to take the exemptions.

The South Carolina Department of Revenue (SCDOR) argues the ALC erred in granting the “machine exemption” and

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the “pollution control machine exemption,” both found in section 12-36-2120(17), to respondent’s purchases of items that are not “machines.” We agree.

Regulation 117-302.5(B)(1) states a “machine qualifies for the exemption under Code Section 12-36-2120(17) if the machine is integral and necessary to the manufacturing process and the product being manufactured is being manufactured ‘for sale.’” The Regulation adds a machine “includes every mechanical device or combination of mechanical powers, parts, attachments and devices to perform some function and produce a certain effect or result, is integral and necessary to the manufacturing process . . . .”

The machine exemption regulation does not define the terms “integral” and “necessary.” Those are commonly defined as “essential to completeness” and “an indispensable item.” Merriam-Webster Collegiate Dictionary 607 & 776 (10th ed. 1993).

The regulation also does not define “essential” or “indispensable,” but the common dictionary definitions for both terms provide that something is essential or indispensable if it is “of the utmost importance” or “absolutely necessary.”

Merriam-Webster Collegiate Dictionary 396 & 593 (10th ed. 1993).

Further, “processing” is not defined in the regulation. The word “process” is defined as “to subject to a special process or treatment (as in the course of manufacture). Merriam-Webster Collegiate Dictionary 929 (10th ed. 1993).

Regulation 117-302.5(B)(4)(a) provides, “Warehouse machinery used only for warehouse purposes, loading and unloading, storing, transporting raw materials and finished products” are not tax exempt. Because respondent’s forklifts feed its bin dumping conveyance system and not the first processing machine, they are not tax-exempt conveyance machines.

Regulation 117-302.5(B)(9) provides: “[a]dministrative machines, furniture, equipment, and supplies, such as office

computers used for . . . recordkeeping . . . are not machines used in the process of manufacturing tangible personal property for sale and are not exempt from the tax.” Thus, respondent’s bar code scanners, black ink aerosol cans, and mobile computer stands are not tax exempt.

Because floor drain covers are a “mechanical device or combination of mechanical powers, parts, attachments and devices to perform some function” as provided in Regulation 117-302.5(B)(1), they are not tax exempt.

Regulation 117-302.5(B)(7) states that machines used for storage, including racks used to store raw materials or finished goods, are not exempt from sales tax as machines used in manufacturing tangible personal property for sale. Thus, respondent’s warehouse racks, pallet flow brakes, stacking containers, and blower fans are not tax exempt.

Regulation 117-302.5(B)(7)(b) provides that machines used for storage are taxable, including “[s]torage tanks used to store raw materials, gasses, or water.” Respondent did not present evidence its water storage tanks are used during processing. Thus, they are not tax exempt.

Regulation 117-302.5(B)(5)(a)(i) provides for a chemical to be exempt, it must be used on an exempt machine on an ongoing and continuous basis and be essential to the functioning of the exempt machine. Because there was no testimony that respondent’s chemicals were used on any exempt machines, they are not tax exempt. Regulation 117302.5(B)(5)(b) also provides chemicals used to clean floors and walls and non-exempt machines, like storage tanks, are not tax exempt. Thus, the floor treatment chemicals are not tax exempt.

Regulation 117-302.5(B)(1)(b) provides a machine is integral and necessary to the manufacturing process if it is “used on an ongoing and continuous basis during the manufacturing process.” The evidence demonstrates respondent uses its maintenance tools on an “as needed” basis. Thus, they are not tax exempt.

Finally, SCDOR also argues that respondent’s generator rentals are not used on an ongoing and continuous

basis and, thus, do not qualify for the exemption. Respondent asserted the generators are used to speed up the ripening process and change the colors of the tomatoes and they are not used yearround because some crops do not need ripening. Because they are not used on an ongoing and continuous basis, they are not tax exempt.

We find SCDOR’s interpretation that each of the items at issue are not tax exempt under the machine exception to be supported by the statue and regulations it is charged with administering. Thus, the ALC erred in broadening the machine exemption beyond the statute’s plain meaning.

SCDOR also found items designated as “protective clothing” (coveralls, eyewear, gloves, aprons, and hairnets) were not exempt from the use tax under the machine exemption or a provision in section 12-36-2120(17), commonly referred to as the “pollution control machine exemption.”

Regulation 117-302(B)(10) provides:

“Protective clothing worn by an employee working in the area in which the manufacturing process occurs does not qualify as a machine and is not exempt from the tax as a machine used in manufacturing tangible personal property for sale under Section 12-36-2120(17).” Thus, because protective clothing is not considered a machine for purposes of the machine exemption, we find protective clothing is not exempt from use tax as a machine used in processing or manufacturing.

We find SCDOR’s interpretation that protective clothing is not tax exempt under the machine exemption or the pollution control machine exemption is supported by the statute and regulations it is charged with administering. Thus, the ALC erred in broadening the exemptions beyond the statute’s plain meaning.

Reversed.

McEntire Produce, Inc. v. South Carolina Department of Revenue (Lawyers Weekly No, 011-017-23, 17 pp.) (Paula Thomas, J.) Appealed from the Administrative Law Court.

DAVID BLACK

MEMBER, MAYNARD NEXSEN COLUMBIA

David Black’s parents always taught him that hard work would pay off. While in law school at the University of South Carolina, he learned an important lesson about a correlate to that vital attribute: preparation.

He had enrolled in a Federal Litigation Clinic taught by Patrick Flynn and was assigned with a classmate to work on a civil suit with the Southern Poverty Law Center, which included deposing a witness who was incarcerated in the Estill Federal Correctional Institute.

After clearing prison security, they realized Flynn was nowhere to be found.

“We waited about 30 minutes before we found out that Professor Flynn would not be joining us for the deposition as he was dressed the same as the inmates,” Black says.

As leader of the business and commercial litigation practice group at the newly merged firm of Maynard Nexsen, Black frequently represents those in the energy and electric utility industry, and also regularly represents clients before the Public Service Commission.

SARAH WETMORE BUTLER PARTNER,

As the immediate past president of the South Carolina Defense Trial Attorneys’ Association, Sarah Wetmore Butler takes pride not only in the exemplary service she provides her clients, but also in the contributions she has made to the profession at large.

In an interview last fall, she described the experience as “a true honor and a testament to her character, leadership abilities and years of hard work.”

A partner at Copeland Stair Valz & Lovell, Butler received both her bachelor’s degree and law degree from Wake Forest University. She defends general contractors, subcontractors, architects and engineers, and assists insurance carriers with a variety of construction claims issues, and she has continued to expand her general liability and insurance defense background to include construction litigation.

Butler credits her clients and colleagues with inspiring her to go to work each day and professionalism is important to her.

“Everyone you come into contact with, from clients to staff to court personnel, deserves respect and kindness,” she says.

JAMES E. “WARD” BRADLEY

Ward Bradley became an attorney to help people. As a partner at Moore Bradley Myers, he does that every day through his civil litigation practice, representing both plaintiffs and defendants in a variety of lifestyles and professions. His clients also include banks and companies both large and small.

For Bradley, success comes from resilience.

“Just know things will go wrong sometimes,” he says. “When you knocked down, it’s important to get right back up and keep going.”

Bradley received his bachelor’s degree from Davidson College and his law degree from the University of South Carolina. He enjoys returning to the classroom at USC where he presents on trial techniques to both practicing attorneys and students.

Active in his community and profession, Bradley is a board member for the Salkehatchie Summer Service Project of the United Methodist Church and as a Sunday school teacher at Shandon Presbyterian Church. He has served as a member of the South Carolina Bar’s Board of Governors and Judicial Screening Committee. He is the past-president of the Richland County Bar Association.

PARTNER, MOORE BRADLEY MYERS WEST COLUMBIA M.

Dawes Cooke loves solving problems. And not the easy ones.

“Succeeding in business litigation requires solving problems on multiple levels and understanding how a particular piece of litigation fits in with the client’s overall business objectives,” he says. “This is what attracted me to the law in the first place.”

Cooke gravitated to business law for the opportunity to take on complex cases. To be an effective attorney, he believes it takes a combination of intellect, strong work ethic and character.

While character has many aspects, he adds, lawyers can’t succeed for long without it, no matter how smart they are or how hard they work.

A native of Beaufort, Cooke received his undergraduate degree from the University of Virginia and his law degree from the University of South Carolina, where he was clerk of court for the Society of Wig and Robe and symposium editor of the USC Law Review. In 1993, he received an honorary doctor of laws degree from The Citadel. Cooke also is a fellow in the American College of Trial Lawyers.

MARY AGNES “MOLLY” HOOD CRAIG

PARTNER, HOOD LAW FIRM CHARLESTON

As a partner at Hood Law Firm in Charleston, Molly Craig concentrates on civil litigation and defending catastrophic product liability, professional liability, pharmaceutical and medical device, trusts and estates litigation, and employment litigation matters across the United States.

The past president of the prestigious International Association of Defense Counsel, Craig has supported the organization’s dedication to serving and benefiting the legal profession through skills development, professionalism and camaraderie.

She is also the past president of both the Charleston Chapter of the American Board of Trial Advocates and the South Carolina Defense Trial Attorneys’ Association, and is a fellow of the International Academy of Trial Lawyers. In addition, she sits on the board of directors of , a purpose-driven NIL Collective developing Clemson student athletes to positively impact others through community charities.

Craig earned her bachelor’s degree from the University of the South and her law degree from the University of South Carolina.

She is a frequent speaker and moderator on professional panels, forums and podcasts.

TREY SUGGS

With over 17 years of experience defending health care professionals, corporations and individuals in high stakes litigation, Trey Suggs has built a reputation as a passionate litigator doing what he calls his dream job.

“I have always been interested in being a balanced litigator, equipped to defend businesses and also seek justice on their behalf,” he says. “Business litigation lends itself to balance as it relates to defense and plaintiff’s work, which keep things very interesting and also helps to maintain my objectivity.”

A South Carolinian from birth and a partner at Roe Cassidy in his hometown of Greenville, Suggs graduated from Washington and Lee University and received his law degree from the USC School of Law. He defends companies in medical malpractice and professional malpractice matters and represents professionals before licensing boards, and in commercial and personal injury litigation cases.

A board member of the South Carolina Defense Trial Attorneys Association, Suggs is a past president of the South Carolina Bar Association Young Lawyers Division.

ELIZABETH VAN DOREN GRAY

When Betsy Gray began her career 46 years ago in South Carolina, her litigation practice was not as concentrated as it is today. Over time, she has embraced and thrived in the specific challenges of complex business litigation in the 21st century.

“I started practicing insurance defense, probate disputes, bringing and defending collection actions and foreclosures, and other contract-type claims,” she says. “As my firm moved towards representing more corporations, my litigation practice did too.”

As she developed a concentration in federal criminal antitrust actions, she found that she enjoyed the intricacies of those matters and consequently gravitated toward complex business litigation.

Gray received both her bachelor’s degree and law degree from the University of South Carolina. She is a founding member of Robinson Gray Stepp & Laffitte in Columbia.

Gray is a fellow of the American College of Trial Lawyers, a permanent member of the Fourth Circuit Judicial Conference, and a member of the Chief Justice’s Commission on the Profession.

CARMEN HARPER THOMAS

As a partner in Nelson Mullins’ Columbia office, Carmen Harper Thomas handles disputes and regulatory issues in the energy, manufacturing, financial services, and technology sectors.

She has a reputation as a tenacious litigator whose experience includes resolving disputes and regulatory issues for financial services companies, energy and telecommunications utilities, professionals and their firms, and companies with innovative technology or business models.

Thomas earned her bachelor’s degree in journalism and mass communications, a master’s degree of Public Administration and her law degree from the University of South Carolina School.

She has served two terms on the USC Board of Visitors and chaired the board in 2020.

She is a leader in the American and South Carolina Bar Associations and is a Fellow of the Leadership Council on Legal Diversity and of the American Bar Foundation. She also serves as vice chair on the Board of Directors of the Boys and Girls Club of the Midlands.

FOUNDING MEMBER, ROBINSON GRAY STEPP & LAFFITTE COLUMBIA

PARTNER, NELSON MULLINS COLUMBIA

PARTNER, ROE CASSIDY GREENVILLE

WILLIAM “TREY” W. WATKINS JR.

Trey Watkins attributes his career success to his love of complex issues and helping people solve their most challenging problems.

“Business litigation on the defense side was a natural fit,” he says.

Watkins earned both his bachelor’s degree and law degree from the University of South Carolina. As a shareholder at Wall Templeton in Charleston, he focuses on insurance defense including construction disputes, serious personal injury and complex litigation.

As an attorney, Watkins derives his personal and professional rewards from “the satisfaction of seeing the relief that comes from helping people navigate and resolve large complex issues,” he says, adding that he considers communication and preparation to be among the most important attributes of a successful attorney.

Watkins is past president of the South Carolina Defense Trial Attorneys Association’s Young Lawyers and currently serves on its board and as a prior chair of its Trial Academy. His goal is to lead the South Carolina Defense Trial Lawyers Association.

NICKISHA

WOODWARD

As a natural problem-solver, Nickisha Woodward believes her business litigation defense practice is a perfect fit for her skill set.

“I enjoy critical thinking and putting the pieces of the puzzle together,” she says. “I have always been one to communicate my thoughts and help people organize.”

Woodward, a shareholder at Turner Padget in Charleston, defends the interests of clients large and small, in personal injury, construction, premises and product liability matters.

A graduate of Clemson University and the Charleston School of Law, Woodward prides herself on being responsive and exceeding her clients’ expectations. She attributes her success to discipline and flexibility.

“The law is ever-changing and the ability to be malleable and pivot is critical to being able to achieve the best outcome for your client,” she says. “Attorneys who are known as some of the best in the country all possess discipline and an ability to stick with the issue even when it is the most difficult to do so.”

As a first-generation lawyer, Woodward aspires to make her family proud.

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• 45-60 minute webinar

• Email marketing

• Social media

• Dedicated project support

• Email marketing

• Print ad

• Social media

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