Asbestos Litigation Skyrockets South Carolina Near Top of “Judicial Hellholes” Ranks
The court’s case consolidation results in No. 4 ranking
One judge in South Carolina is putting the state’s civil justice system on the map for all the wrong reasons.
The American Tort Reform Foundation (ATRF) added South Carolina’s asbestos litigation to its “Judicial Hellholes” “Watch List” last year, but problems persisted and this year it skyrocketed to the No. 4 spot.
Judicial Hellholes are deemed the most unjust local courts and state civil justice systems in the country. The 2020 report ranks nine Judicial Hellholes while shining a light on lawsuit abuse and its effects.
The high ranking is due almost exclusively to Judge Jean Toal’s handling of the state’s asbestos litigation. Judge Toal, a retired Chief Justice of the state Supreme Court, has shown a concerning pattern of allowing abuse of the discovery procedure, unwarranted penalties during trials and low standards for expert evidence. In several cases, she has overturned or substantially modified jury verdicts she didn’t agree with and inappropriately consolidated substantially different cases into one trial.
“Judge Toal has built a record of broad rulings, favoring those who file lawsuits, while imposing severe and unwarranted penalties on those being sued in almost every case she hears,” American Tort Reform Association (ATRA) President Tiger Joyce said.
In 2015, she was forced to retire as Chief Justice of the state Supreme Court due to the state’s mandatory retirement age of 72. Then in 2017, the new Supreme Court Chief Justice, Donald W. Beatty, appointed the retired Chief Justice to oversee all of the state’s asbestos litigation.
In March 2020, Judge Toal consolidated two cases of individuals claiming they developed cancer as a result of asbestos exposure from using Johnson & Johnson baby powder. However, the facts and claims in the two cases were significantly different.
One case involved a man, who died at 70 from pleural mesothelioma, a cancer of the lungs often associated with asbestos exposure. He’d also said he worked with asbestos at a facility that manufactured products containing asbestos. The company argued the man’s cancer was more likely to have been caused by his occupational exposure.
The other case involved a young woman who was diagnosed at the age of 14 with peritoneal mesothelioma that is less strongly associated with asbestos. Studies cited in the case show between 95% and 99% of that type of mesothelioma in women is the result of naturally occurring genetic errors during cell replications. The woman underwent surgery and chemotherapy and is currently cancer-free.
The case ultimately settled before South Carolina’s Supreme Court could weigh in on the appeal. ATRA filed an amicus brief in the case.
“Since her appointment, Judge Toal has shown over and over again that she, and only she, knows best,” Joyce said.
Judge Toal has a record of overturning or modifying jury verdicts with which she disagrees. In a 2018 trial she directly told a jury that the defendant exposed the plaintiff to asbestos. After hearing the evidence, the jury ultimately sided with the defendant. Months after the verdict, Judge Toal invoked South Carolina’s 13th Juror Doctrine, effectively making herself the 13th juror in the case. This resulted in a hung jury and a mistrial. Judge Toal then ordered a new trial.
“Judge Toal’s procedurally irregular handling of South Carolina’s asbestos litigation is alarming,” Joyce said. “It brings into question her ability to serve with impartiality and has created a risk of actual bias for those who must defend themselves before her in court.”
On at least two occasions, Judge Toal increased jury award amounts when she believed the jury did not award enough money to a plaintiff. In one case, she increased an award by more than $1.6 million. In another case, without any explanation, she increased a jury award by $400,000.
“If Judge Toal continues to oversee the state’s asbestos docket, trial lawyers and their clients will know they can turn to South Carolina, a Judicial Hellhole, to exploit the troubling and inequitable practices of Judge Toal for a large payout,” Joyce said. “We urge the state of South Carolina to address these issues and return the handling of asbestos cases to individual counties.”
The full 2020-2021 Judicial Hellholes rankings are:
- Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania
- New York City
- South Carolina’s Asbestos Litigation
- City of St. Louis
- Cook, Madison and St. Clair Counties, Illinois
View the full report at JudicialHellholes.org.