Larry Southern v. Richard H. Bishoff, PC , 675 F. App'x 239 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2008
LARRY SOUTHERN; ROY SOUTHERN; YVONNE HARRIS; BARBARA
PATTERSON, individually and on behalf of others similarly
situated in the State of South Carolina,
Plaintiffs – Appellants,
and
LUCILLE SOUTHERN; ODELL PARKER; RUTH PARKER,
Plaintiffs,
v.
RICHARD H. BISHOFF, PC; RICHARD H. BISHOFF; JOHN M. DEAKLE;
JOHN W. BARRETT; BARRETT LAW GROUP, PA; A. JOEL BENTLEY;
PAUL T. BENTON; WILLIAM R. COUCH; DAVID O. MCCORMICK;
CUMBEST CUMBEST HUNTER & MCCORMICK; CRYMES G. PITTMAN;
PITTMAN GERMANY ROBERTS & WELSH, LLP; JOHN MICHAEL SIMMS;
EUGENE C. TULLOS; TULLOS & TULLOS; RANCE N. ULMER,
Defendants – Appellees,
and
ASBESTOS PROCESSING LLC; A. JOEL BENTLEY LAW OFFICE;
CHARLES G. BLACKWELL, JR.; COUCH LAW FIRM; PATRICK C.
MALOUF; PORTER & MALOUF, PA; HAMMACK BARRY THAGGARD & MAY,
LLP; ANTHONY SAKALARIOS; MORRIS SAKALARIOS & BLACKWELL,
PLLC; LAWYER JOHN DOE; LAWYER JANE DOE,
Defendants,
WILLIAM HOWELL MORRISON,
Intervenor For Limited Purpose.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Senior
District Judge. (0:11-cv-01800-JFA)
Argued: October 25, 2016 Decided: January 12, 2017
Before TRAXLER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James J. O’Keeffe, IV, JOHNSON, ROSEN & O’KEEFFE, LLC,
Roanoke, Virginia, for Appellants. Kurt M. Rozelsky, SMITH
MOORE LEATHERWOOD LLP, Greenville, South Carolina; Morris Dawes
Cooke, Jr., BARNWELL WHALEY PATTERSON AND HELMS, LLC,
Charleston, South Carolina, for Appellees. ON BRIEF: Thomas A.
Pendarvis, PENDARVIS LAW OFFICES, P.C., Beaufort, South
Carolina; Susan F. Campbell, Georgetown, South Carolina, Chad A.
McGowen, Randall S. Hood, MCGOWAN, HOOD & FELDER, LLC, Rock
Hill, South Carolina; Brent P. Stewart, STEWART LAW OFFICES,
Rock Hill, South Carolina, for Appellants. Jason D. Maertens,
SMITH MOORE LEATHERWOOD LLP, Greenville, South Carolina, for
Appellees Richard H. Bishoff, PC, Richard H. Bishoff, and John
M. Deakle; Susan P. McWilliams, William C. Lewis, NEXSEN PRUET,
LLC, Columbia, South Carolina, for Appellee William R. Couch;
John William Fletcher, BARNWELL WHALEY PATTERSON AND HELMS, LLC,
Charleston, South Carolina, for Appellees Crymes G. Pittman,
Pittman Germany Roberts & Walsh, LLP, Eugene C. Tullos, Tullos &
Tullos, and Rance Ulmer; Elizabeth Van Doren Gray, J. Calhoun
Watson, Alexis Lindsay, SOWELL GRAY STEPP & LAFFITTE, L.L.C.,
Columbia, South Carolina, for Appellee John Michael Sims; Thomas
C. Salane, R. Hawthorne Barrett, TURNER PADGET GRAHAM & LANEY
P.A., Columbia, South Carolina, for Appellees David O. McCormick
and Cumbest Cumbest Hunter & McCormick; Leslie A. Cotter, Jr.,
RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina,
for Appellee A. Joel Bentley, Jr.; Larry D. Moffett, Shea S.
Scott, DANIEL COKER HORTON & BELL, P.A., Oxford, Mississippi,
John T. Lay, Jr., Lindsay A. Joyner, GALLIVAN, WHITE & BOYD,
P.A., Columbia, South Carolina, for Appellees Barrett Law Group,
PA and John W. Barrett; Frank R. Ellerbe, III, ROBINSON,
MCFADDEN & MOORE, P.C., Columbia, South Carolina, for Appellee
Paul T. Benton.
2
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
This case arises out of several attorneys’ legal
representation of several South Carolina employees regarding
their personal-injury claims against asbestos manufacturers.
The employees’ lawsuit alleges that the attorneys breached a
duty to instruct them as to how to protect their rights to
receive workers’ compensation benefits, or at least to notify
them that they might need to seek further advice on the issue.
The employees appeal district court orders dismissing some
defendants for lack of personal jurisdiction and granting
summary judgment to others on the merits of the claims. Finding
no error, we affirm.
I.
Viewing the facts in the light most favorable to the
employees, as we must in reviewing an order granting summary
judgment against them, the record reveals the following.
Attorneys Richard Bishoff and John Deakle (“Bishoff/Deakle”
collectively) represent workers throughout the Southeast in
asbestos-related claims. However, they do not represent
employees who have filed workers’ compensation claims. In fact,
they terminate their representation of clients who file workers’
compensation claims because the presence of the workers’
compensation issues make the cases much less financially
attractive to them.
4
Larry Southern, Roy Southern, Yvonne Harris, and Barbara
Patterson (collectively, “Employees”) are South Carolinians who
worked for decades at Springs Mills, a textile manufacturing
plant located in Lancaster, South Carolina. They have all been
diagnosed with asbestosis, the result of their exposure to
asbestos in the course of their work at Springs Mills.
Three of these individuals stopped working and began
collecting Social Security disability benefits for other
disabling conditions years before being diagnosed with
asbestosis. Patterson stopped working in 1996, when she was
diagnosed with, and began collecting Social Security disability
payments for, asthma or chronic obstructive pulmonary disease
(“COPD”). She was diagnosed with asbestosis in late 2008.
Harris stopped working in 1997, when she was diagnosed with COPD
and began collecting Social Security disability for that
condition. She was first diagnosed with asbestosis in February
2001. Roy Southern stopped working for Springs in 2003 because
of back problems, for which he began collecting Social Security
disability. He was diagnosed with asbestosis in May 2009.
Larry Southern was laid off from Springs Mills when the
plant closed in September 2007, and he was diagnosed with
asbestosis in May 2009. He collected unemployment for a year-
and-a-half after being laid off, then went to work in August
2009 as a line mechanic/operator for another company at a wage
5
lower than he had been earning in his job at Springs Mills. He
works forty hours per week and some overtime and has never
missed a day of work for health reasons.
Beginning around 2009, each Employee retained
Bishoff/Deakle and others to represent them regarding their
personal injury claims against asbestos manufacturers concerning
their asbestos exposure. Each Employee’s contract of
representation provided that the client understood that their
attorneys were not being employed to advise them regarding
workers’ compensation matters. And indeed the attorneys did not
provide any advice regarding any possible effect that their
personal-injury claims might have on their rights to obtain
workers’ compensation benefits in South Carolina.
Section 524(g) of the Bankruptcy Code authorizes the
creation of asbestos personal-injury trusts for claims made
against asbestos manufacturers in bankruptcy. See 11 U.S.C. §
524(g); see generally Barraford v. T&N Ltd., 778 F.3d 258, 260-
61 (1st Cir. 2015). Utilizing Mississippi’s liberal joinder
rules, Employees’ attorneys filed suit in that state and
obtained recoveries for each Employee from such trusts.
This action was commenced in July 2011 by a single
plaintiff, based on diversity jurisdiction, against
Bishoff/Deakle and many others, alleging claims for legal
malpractice, breach of contract, and breach of fiduciary duty.
6
Although the original plaintiff was not one of the Employees,
Employees were later added as plaintiffs and the original
plaintiff was dropped from the action. 1 Employees allege that
their defendant-attorneys failed to advise them about legal
alternatives available under South Carolina law: (1) to proceed
solely with asbestos tort claims, (2) to proceed solely with
workers’ compensation claims, or (3) to proceed with both claims
simultaneously. Employees further allege that the defendants
failed to advise them that under South Carolina law, see S.C.
Code § 42-1-560, they would waive their workers’ compensation
claims by proceeding with asbestos tort claims unless they
provided the statutorily required notice to Springs Mills. The
remedies sought included compensatory and punitive damages and,
regarding the breach-of-fiduciary-duty claim, disgorgement of
legal fees.
Shortly after this case was filed, the parties agreed to
conduct limited discovery and present dispositive motions on the
issue of whether Employees had viable workers’ compensation
claims at the time they retained the defendant-attorneys. Once
the parties conducted this initial discovery, the defendants
1In their third amended complaint, the named plaintiffs
asserted claims for themselves and on behalf of a putative
class. However, the district court subsequently denied
Employees’ motion for class certification. See Fed. R. Civ. P.
23(c)(4).
7
moved for summary judgment in July 2012. In support of their
entitlement to summary judgment, they argued that Employees
could not prove damages from any alleged breach because when the
defendants were retained, Employees did not have viable workers’
compensation claims. The defendants advanced three reasons why
the claims were not viable at the time they commenced
representing Employees: First, Employees did not meet a
statutory requirement of having become disabled from asbestosis
within two years after their last exposure to asbestos; second,
they were not disabled as a result of asbestosis at the time
they retained the defendants or at any later time; and third,
they did not have lost wages due to asbestosis because Larry
Southern continues to work full-time and the other three
Employees stopped working due to other health conditions. Their
motion included the affidavit of an expert, Dr. John Allen Dicks
Cooper, Jr., who opined to a reasonable degree of medical
certainty that none of the Employees had suffered or did suffer
from any total or partial disability caused, or contributed to,
by asbestosis.
Employees opposed the motion. Regarding the contention
that they were not disabled as a result of asbestosis, Employees
8
submitted the affidavit of their expert, Dr. William Alleyne, 2
stating:
I was retained to provide a diagnosis of the named
Plaintiffs and opine, to a reasonable degree of
medical certainty, as to whether any of the named
Plaintiffs suffer from a current impairment; whether
they need or will need medical treatment; whether they
have any restrictions; and whether their diagnosis is
causally related [to] the history of work related
exposure to asbestos provided by the patient and
through records submitted by certain out-of-state law
firms in support of claims made against various
bankrupt asbestos manufacturers.
Alleyne Aff. p.2 (ECF No. 70-3) (emphasis added). The affidavit
stated that, as a result of workplace exposure to asbestos dust,
Roy Southern, Harris, and Patterson were each unable to work due
to asbestosis. 3 The affidavit also stated that Larry Southern
had asbestosis resulting from his workplace exposure and it “did
prevent [him] from frequently to continuously walking across a
large manufacturing plant, bending/stooping twisting/ kneeling/
crouching on a frequent to continuous basis, lifting up to 50
pounds frequently (required in his previous job [at Springs
Mills] as a plant mechanic/technician) such that he necessarily
must work at a job with lighter physical demands.” Alleyne Aff.
pp.6-7 (ECF No. 70-3). Dr. Alleyne did not offer any opinion as
2 Employees had identified Dr. Alleyne as an expert on June
1, 2012. They later identified him again on August 8, 2014.
3 Dr. Alleyne opined that Harris’s and Patterson’s oxygen-
dependent respiratory failure and Harris’s COPD were “aggravated
by [their] asbestosis.” Alleyne Aff. pp. 2-3 (ECF No. 70-3).
9
to any Employee regarding when their asbestosis first impacted
their abilities to work.
The district court denied summary judgment in February
2013, stating that there was “too much of a possibility of a
genuine issue of material fact.” J.A. 832.
Shortly thereafter, Employees amended their complaint to
add additional defendants, and many of the newly added
defendants filed motions to dismiss for lack of personal
jurisdiction. (We refer to all defendants collectively as
“Attorneys.”) Following limited discovery on this
jurisdictional issue, the court dismissed some of the Attorneys
without prejudice, while ruling that it possessed personal
jurisdiction over the others.
On January 8, 2015, the district court issued an amended
scheduling order imposing a discovery deadline of February 9,
2015, and a deadline for dispositive motions of February 24,
2015, with the trial to take place in April 2015. The district
court later established a trial date of July 7, 2015.
Dr. Alleyne was deposed on February 6, 2015. He testified
that while he believed to a reasonable degree of medical
certainty that all Employees were disabled by asbestosis on the
date he examined them, he had not formed any opinion – or
attempted to form one – concerning when they first contracted
10
asbestosis or became disabled from the disease. 4 Regarding
Patterson, Dr. Alleyne was specifically asked whether he even
could say whether she was disabled due to asbestosis the day
before he examined her, and he answered that he could not.
When asked whether he was intending to offer any opinions
regarding when Larry Southern became disabled from asbestosis,
Dr. Alleyne explained that those who have been exposed to
asbestos dust would be “disabled” in the sense that continued
exposure would place them at unreasonable risk of developing
different diseases. In that (non-legal) sense, Dr. Alleyne
testified, Larry Southern became disabled shortly after his
first exposure to asbestos. But see S.C. Code § 42-11-20
(providing that “‘partial disability’ means the physical
inability to continue work in [the last occupation when exposure
occurred] only and ‘total disability’ means the physical
inability to perform work in any occupation”).
4
Dr. Alleyne also testified that Roy Southern was totally
and permanently disabled as a result of his back problems at the
time he examined him, and he offered no opinion concerning what
percentage of his inability to work was due to asbestosis as
opposed to the back problems.
11
Following completion of discovery, the remaining defendants
filed motions for summary judgment on all claims. 5 The bases
Attorneys asserted for summary judgment included those they had
asserted in their 2012 summary judgment motions regarding
Employees’ inability to demonstrate that they had viable
workers’ compensation claims at the time they retained
Attorneys. Accordingly, they argued that Employees did not
become disabled from asbestosis within two years after they were
last exposed to asbestos; they were not disabled from asbestosis
at the time they retained Attorneys or at any later time; and
they did not lose wages due to asbestosis because Larry Southern
continues to work full-time and the other Employees stopped
working due to other health conditions. Regarding Employees’
failure to show that they were disabled by asbestosis when they
retained Attorneys, Attorneys pointed out that even Employees’
expert had offered no opinion on the subject.
The district court allowed Employees until April 23, 2015,
to respond to Attorneys’ motions. In their response filed on
that date, Employees included “supplemental” affidavits of Dr.
Alleyne (the “Supplemental Affidavits”). The affidavits
included the statement that “[d]uring the course of [his]
5 In late January 2015, Employees had filed a motion for
partial summary judgment.
12
deposition, counsel for [Attorneys] asked certain questions,
some of which [Dr. Alleyne] had not been asked to consider
previously.” J.A. 3205, 3212, 3224, 3231. The affidavits
stated that “[s]ince that time, [he] ha[d] been asked to
consider and provide more specific information related to some
of those questions.” J.A. 3205, 3212, 3224, 3231. In the
affidavits, Dr. Alleyne opined for the first time that Employees
actually were disabled from asbestosis when they stopped working
at Springs Mills.
Attorneys moved to strike these affidavits, contending they
were improper under the Rules of Civil Procedure, the applicable
scheduling order, and case law. Employees responded that the
affidavits were proper supplemental expert-witness disclosures
under Rule 26(e)(2). See Fed. R. Civ. P. 26(e)(2). They argued
that even assuming that the disclosures were late, they were
substantially justified because they were responsive to the
deposition questions. The district court took the motion under
advisement.
The court never explicitly addressed the merits of the
motion to strike. Ruling on the parties’ summary judgment
motions, the district court granted Attorneys’ and denied
Employees’. The court reasoned that under any of Employees’
three causes of action, they would need to establish damages
proximately caused by Attorneys’ actions, and thus Employees
13
would have to show that they had viable workers’ compensation
claims at the time they retained Attorneys. The court ruled
that Employees could not show they had viable workers’
compensation claims at that time because, for their asbestosis
to be compensable under the Act, they would need to have become
disabled from asbestosis within two years of their last
exposures at Springs Mills. 6 Based on the record developed
during discovery (which would exclude the Supplemental
Affidavits), the court concluded that Employees had failed to
forecast sufficient evidence to create a genuine dispute of
material fact on that point. The court further ruled that
testimony they submitted from a former workers’ compensation
commissioner that every case has some settlement value also was
not sufficient to create a genuine factual dispute regarding
damages. And the court rejected an argument from Employees that
even if their other claims failed, their fiduciary-duty claim
could survive even without proof of damages since Employees
6 S.C. Code § 42-11-70 provides:
Neither an employee nor his dependents shall be
entitled to compensation for disability or death from
an occupational disease, except that due to exposure
to ionizing radiation, unless such disease was
contracted within one year after the last exposure to
the hazard peculiar to his employment which caused the
disease, save that in the case of a pulmonary disease
arising out of the inhalation of organic or inorganic
dusts the period shall be two years.
14
sought disgorgement of attorneys’ fees as a remedy under that
claim. The district court concluded that Attorneys were
entitled to summary judgment on that cause of action as well
because it arose out of the same operative facts as the legal
malpractice claim. 7 Having granted summary judgment against
Employees, the district court denied as moot Attorneys’ motion
to strike the Supplemental Affidavits.
II.
Employees argue that the district court erred in granting
summary judgment against them. We disagree.
“We review a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the
district court, and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
T–Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380,
384–85 (4th Cir. 2012) (internal quotation marks omitted).
Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
7 The court also concluded that several defendants were
entitled to summary judgment on additional grounds not relevant
to our decision.
15
“Because we are sitting in diversity, our role is to apply
[South Carolina] law, or, if necessary, predict how the state’s
highest court would rule on an unsettled issue.” Horace Mann
Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th
Cir. 2008).
“A plaintiff in a legal malpractice action must establish
four elements: (1) the existence of an attorney-client
relationship, (2) a breach of duty by the attorney, (3) damage
to the client, and (4) proximate causation of the client’s
damages by the breach.” 8 RFT Mgmt. Co. v. Tinsley & Adams
L.L.P., 732 S.E.2d 166, 170 (S.C. 2012). As to damages, “the
plaintiff must show he or she ‘most probably’ would have been
successful in the underlying suit if the attorney had not
committed the alleged malpractice.” See Hall v. Fedor, 561
S.E.2d 654, 657 (S.C. Ct. App. 2002) (emphasis omitted). The
plaintiff can make that showing either by proving that, but for
the malpractice, he most probably would have received a
settlement larger than the one he received or most probably
would have prevailed on the underlying claim at trial. See id.
Either way, “the client must show at least that he has lost a
8
“The elements for a breach of contract are the existence
of a contract, its breach, and damages caused by such breach.”
S. Glass & Plastics Co. v. Kemper, 732 S.E.2d 205, 209 (S.C. Ct.
App. 2012).
16
probability of success as a result of the attorney’s
negligence.” Doe v. Howe, 626 S.E.2d 25, 32 (S.C. Ct. App.
2005) (internal quotation marks omitted).
A.
Employees first argue that the district court erred in
concluding that they did not possess viable workers’
compensation claims at the time Attorneys agreed to represent
them. We disagree. Like the district court, we conclude that
Employees failed to create a genuine factual dispute regarding
the viability of their workers’ compensation claims, although
our reasoning differs from the district court’s. See MM ex rel.
DM v. School Dist. of Greenville Cty., 303 F.3d 523, 536 (4th
Cir. 2002) (“[W]e are entitled to affirm the court’s judgment on
alternate grounds, if such grounds are apparent from the
record.”). We conclude that Employees’ workers’ compensation
claims were not viable because they failed to create a genuine
factual dispute concerning whether they incurred any lost wages
as a result of asbestosis.
A worker covered by the Workers’ Compensation Act (the
“Act”) who has been accidentally injured can be entitled to
receive benefits under the “general disability” statutes, §§ 42-
17
9-10 and 42-9-20, or the “scheduled loss” statute, § 42–9–30. 9
See Hutson v. South Carolina State Ports Auth., 732 S.E.2d 500,
502 (S.C. 2012); see also S.C. Code § 42-11-10(D) (“No
compensation shall be payable for any occupational disease
unless the employee suffers a disability as described in Section
42-9-10, 42-9-20, or 42-9-30.”). And, “the disablement or death
of an employee resulting from an occupational disease shall be
treated as an injury by accident.” S.C. Code § 42-11-40; see
also S.C. Code § 42-1-160 (“‘Injury’ . . . mean[s] only injury
by accident arising out of and in the course of employment and
shall not include a disease in any form, except when it results
naturally and unavoidably from the accident and except such
diseases as are compensable under the provisions of Chapter 11
of this Title.”). Disability due to asbestosis caused by
asbestos-dust inhalation constitutes an occupational disease
within the meaning of this section. See Skinner v. Westinghouse
Elec. Corp., 716 S.E.2d 443, 445 (S.C. 2011); see also S.C. Code
§ 42-11-10(B)(5).
9
“The general disability statutes offer compensation for
total and partial disability, including a provision for wage
loss benefits.” Hutson v. South Carolina State Ports Auth., 732
S.E.2d 500, 502 (S.C. 2012).
18
Nevertheless, the Act limited Employees’ options for
proving a compensable injury. The Act states that “[n]o
compensation shall be payable for any pulmonary disease arising
out of the inhalation of organic or inorganic dust or fumes
unless the claimant suffers disability as described in Section
42–9–10 or Section 42–9–20 and shall not be compensable under
Section 42–9–30.” S.C. Code § 42–11–60. Since § 42–11–60
specifically addresses the compensability for pulmonary disease,
and it is undisputed asbestosis is a pulmonary disease,
Employees could only be entitled to compensation under §§ 42–9–
10 or 42–9–20. Unless Employees were entitled to compensation
under § 42-11-60, their pulmonary disease is not even deemed to
be an “accident” within the meaning of the Act. See Drake v.
Raybestos-Manhattan, Inc., 127 S.E.2d 288, 291 (S.C. 1962)
(involving statute that was predecessor to § 42-11-60 providing
that “[n]o compensation shall be payable for any pulmonary
disease arising out of the inhalation of organic or inorganic
dusts unless the claimant shall have been exposed thereto by his
employment for a period of at least one year and unless he
suffers a total disability therefrom”), overruled on other
grounds, Hunt v. Whitt, 306 S.E.2d 621 (S.C. 1983).
This distinction is important in this case because “an
award under the general disability statutes [§§ 42-9-10 or 42-9-
20] must be predicated upon a showing of a loss of earning
19
capacity, whereas an award under the scheduled loss statute
[§ 42-9-30] does not require such a showing.” Skinner, 716
S.E.2d at 446 (internal quotation marks omitted). Thus, in the
case of partial disability, a claimant would be entitled to
“weekly compensation equal to sixty-six and two-thirds percent
of the difference between his average weekly wages before the
injury and the average weekly wages which he is able to earn
thereafter.” S.C. Code § 42-9-20; see also Skinner, 716 S.E.2d
at 445 (“Under section 42-9-20, lost wages must be shown in
order to receive compensation.”). The claimant bears the burden
of proving the lost wages. See Coleman v. Quality Concrete
Prods., Inc., 142 S.E.2d 43, 45 (S.C. 1965).
Attorneys argue, for several reasons, that the district
court correctly concluded that Employees did not have viable
workers’ compensation claims when Attorneys commenced
representation. The one we focus on here is Attorneys’
contention that Employees have not forecast evidence that they
suffered lost wages as the result of asbestosis, as §§ 42-9-10
and 42-9-20 require they must in order to have a compensable
injury. Employees offer two responses. First, they cite the
principle that “[t]he law in effect at the time of the injury
governs the rights of the parties and not the law effective at
the time the award is made.” Sellers v. Daniel Constr. Co., 330
S.E.2d 305, 306 (S.C. 1985) (internal quotation marks omitted).
20
Employees contend that prior to issuing Skinner in 2011, the
South Carolina Supreme Court had not yet explicitly held that
claims based on asbestosis from asbestos inhalation must be
pursued under the general-disability statutes rather than the
scheduled-loss statute. They argue that had they proceeded
under the scheduled-loss statute, § 42-9-30, they could have
obtained compensation without proving lost wages.
However, whether the Supreme Court had explicitly resolved
the issue prior to issuing Skinner is beside the point. Even on
the dates each of the Employees stopped working at Springs
Mills, § 42-11-60 plainly precluded Employees from proceeding
under the scheduled-loss statute, and Employees suggest no
reason why § 42-11-60 could have been read otherwise. Thus,
even prior to Skinner, the Act required them to prove they lost
wages due to their asbestosis in order to establish a right to
compensation. 10
10Employees argue that, prior to the issuance of Skinner,
the South Carolina Workers’ Compensation Commission had allowed
claimants under facts analogous to the facts of this case to
proceed under § 42-11-30. However, regardless of whether
Employees could have prevailed at the Commission level prior to
the issuance of Skinner, it would be mere speculation to
conclude that such an award would not have been reversed on
appeal.
21
Employees also assert that they did forecast admissible
evidence that they lost wages due to asbestosis. We disagree
with this proposition. On this point we note initially that
Employees were not entitled to rely on the Supplemental
Affidavits, which they submitted nearly two months after the
deadline for completion of discovery. These Supplemental
Affidavits were, and are, properly ignored. A scheduling order
“may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). But “the party seeking an
extension must show that, despite due diligence, it could not
have reasonably met the scheduled deadlines.” 3 James Wm. Moore
et al., Moore’s Federal Practice § 16.14[1][a], p. 16-75 (3d ed.
2016). Employees certainly could not meet that standard here.
Employees offered no justification whatsoever for not
producing evidence on that point prior to the discovery
deadline. Attorneys had made the timing of the onset of any
asbestos-caused disability a critical issue for several years,
from the start of this case. The timing was central to their
claims that Employees were not disabled within two years of
their last exposure to asbestos at Spring Mills, that Employees
did not yet have viable workers’ compensation claims when
Attorneys commenced to represent them, and that no Employees
suffered lost wages due to disability from asbestosis. Thus,
Employees certainly failed to demonstrate the “good cause” they
22
would have needed to show in order to have the deadline
extended.
In the district court Employees argued that they were
entitled to submit these affidavits after the discovery deadline
because they were entitled to supplement their Rule 26(a)(2)
disclosures under Rule 26(e) regarding the opinions of their
expert witness. See Fed. R. Civ. P. 26(a)(2). But Rule 26(e)
merely places the duty on an expert witness to supplement his
report “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
In contrast, Employees’ presentation of these new opinions were
not proper Rule 26(e) supplements, but rather were “poorly
disguised attempts to counter [Attorneys’] arguments with new
expert analyses.” EEOC v. Freeman, 778 F.3d 463, 467 n.7 (4th
Cir. 2015) (internal quotation marks omitted). There was no
basis for the district court to consider the tardy opinions.
See Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624,
631 (E.D.N.C. 2008) (“Courts distinguish ‘true supplementation’
(e.g., correcting inadvertent errors or omissions) from
gamesmanship, and have therefore repeatedly rejected attempts to
avert summary judgment by ‘supplementing’ an expert report with
23
a ‘new and improved’ expert report.”). 11 Accordingly, in
determining Attorneys’ entitlement to summary judgment, we
consider the summary judgment record as it existed on the date
of the deadline for completing discovery. We conclude that
Employees failed to forecast sufficient evidence of lost wages
due to asbestosis.
As we have stated, Patterson, Harris, and Roy Southern had
stopped working and were collecting Social Security payments
based on disability from other conditions years before they were
diagnosed with asbestosis. After the close of discovery, when
Attorneys moved for summary judgment, Employees had forecast no
evidence that they were disabled due to asbestosis at the time
11Employees argue that even if their claims for disability
benefits were not viable because their asbestosis did not cause
them to lose wages, they still could have claims for medical
treatment under the Act. See S.C. Code § 42-15-60 (entitling
employees who have suffered an “injury” within the meaning of
the Act to medical benefits). We disagree. Under § 42-11-60,
Employees must suffer a disability within the meaning of §§ 42-
9-10 and -20 for their asbestosis even to be treated as an
“injury” within the meaning of the Act. See Drake v. Raybestos-
Manhattan, Inc., 127 S.E.2d 288, 291 (S.C. 1962) (involving
predecessor statute to § 42-11-60), overruled on other grounds,
Hunt v. Whitt, 306 S.E.2d 621, 622 (S.C. 1983). Without lost
wages resulting from asbestosis, Employees had no compensable
injury. Cf. Skinner v. Westinghouse Elec. Corp., 716 S.E.2d
443, 445-46 (S.C. 2011) (holding that when the claimant could
not establish lost wages caused by his asbestosis, his
asbestosis was not compensable and there was no need to address
whether his workers’ compensation claim was time barred).
24
they stopped working at Springs Mills. And their expert, Dr.
Alleyne, had specifically testified in his deposition that he
had not even tried to determine whether they were disabled due
to asbestosis prior to the time he examined them. Accordingly,
at the time Attorneys moved for summary judgment, Employees had
failed to forecast evidence that their inability to perform
their jobs was due to asbestosis.
Like the other three Employees, Larry Southern was also
unable to show that asbestosis caused him to lose wages. He
stopped working at Springs Mills only because he was laid off
when the plant closed in September 2007. After collecting
unemployment benefits for a year-and-a-half, he went to work for
another company in August 2009. 12 And he has not shown any
reduction in his wages due to asbestosis since he started with
the new company. Accordingly, like the other Employees, he
12
Larry Southern states that he originally considered
taking a different position with the new company and that the
position was too physically taxing for him. However, an
affidavit from the human resources manager of Southern’s new
employer stated that the position he took was the highest paying
one he was qualified for in light of his education and
experience, and nothing in the summary judgment record
contradicts that.
25
failed to create a genuine factual dispute concerning whether he
possessed a viable workers’ compensation claim. 13
B.
Employees contend that regardless of the legal viability of
their workers’ compensation claims, they could prove damages
from Attorneys’ failure to protect their workers’ compensation
rights because they at least forecasted evidence they would have
recovered some amount in settlement of their claims had the
Attorneys adequately protected them. Employees point to
deposition testimony from Robert Hundley, a former Workers’
13
Employees point to Dr. Alleyne’s deposition testimony
that Larry Southern became “disabled” shortly after his first
exposure to asbestos. J.A. 3859. However, the context of that
testimony makes clear that he was not using the word “disabled”
to have the meaning it has in the context of the Act, which
refers to the physical inability of a claimant to work. See
S.C. Code § 42-11-20 (“‘[P]artial disability means the physical
inability to continue work [in the job in which the exposure
occurred] and ‘total disability’ means the physical inability to
perform work in any occupation.”); see J.A. 2301 (Dr. Alleyne’s
testimony that “[w]hen you say disabled . . . we’re talking
about the difference between attorneys and physicians.”). Dr.
Alleyne was opining that it would be medically dangerous for
someone who has been exposed to asbestos to continue to be
exposed. See J.A. 3859 (stating that a person who has been
exposed to asbestos dust “would be considered disabled from the
viewpoint that he or she could not work in their usual
occupation or would be limited in the types of jobs they could
do, because once you’re exposed to asbestos, you then run the
risk of not only developing asbestosis but also the various
malignancies associated with asbestos dust exposure and
inhalation thereof and so therefore you should not be working in
those capacities”).
26
Compensation Commissioner and practicing lawyer who testified
that he has represented hundreds of parties in workers’
compensation matters and, in his experience, almost all workers’
compensation cases settle. He indicated that he would have
obtained a settlement had he represented these Employees, and
the only question would have been the amount of the settlement.
Even assuming that Employees’ legal theory is otherwise
sound, we conclude that Employees have not forecasted admissible
evidence sufficient to create a genuine factual dispute
concerning whether they would have settled their claims had they
preserved their rights to bring them. 14 Employees forecast no
evidence that Hundley was able to obtain settlements for
claimants who had no lost wages, which calls into question
whether he could intelligently testify about whether an
insurance carrier would even be willing to settle such a case.
And even assuming that frivolous claims have some settlement
value, there would be no nonspeculative basis for a factfinder
to conclude that these particular parties would have been able
to agree regarding the value of their claims, as they would need
to do in order to achieve a settlement. Cf. Fuschetti v.
Bierman, 319 A.2d 781, 784 (N.J. Super. Ct. Law Div. 1974)
14
Attorneys argue that making claims on the personal injury
trusts did not waive Appellants’ right to file workers’
compensation claims in any event. We do not address this issue.
27
(“Because no expert can suppose with any degree of reasonable
certainty the private blends of hopes and fears that might have
come together to produce a settlement before or during trial,
expert testimony as to reasonable settlement value will be
excluded as irrelevant.”); Campbell v. Magana, 184 Cal. App. 2d
751, 758 (Cal. Dist. Ct. App. 1960) (plaintiff in legal
malpractice action could not show damages based on nuisance
value of case where evidence shows that best settlement offer
was $350 and plaintiff had said she would not settle for less
than $100,000; thus prospect of settlement was speculative).
For all of these reasons, we conclude that the district court
properly determined that Employees failed to forecast sufficient
evidence of damages from any failure on the part of Attorneys to
protect their right to workers’ compensation.
C.
Employees also argue that even if they could not prove
damages from Attorneys’ alleged breach of duty, the district
court erred in granting summary judgment against them on their
fiduciary-duty claim. Employees argue that their claim remained
viable because Employees sought forfeiture of attorneys’ fees.
See Hendry v. Pelland, 73 F.3d 397, 401-02 (D.C. Cir. 1996)
(collecting cases supporting proposition that “courts in other
jurisdictions have held that clients must prove injury and
proximate causation in a fiduciary duty claim against their
28
lawyer if they seek compensatory damages, not if . . . they seek
only forfeiture of legal fees”). We disagree. Even assuming
that Employees’ fiduciary-duty claims were viable to the extent
that the summary judgment record supported fee disgorgement,
Employees failed to forecast evidence that could warrant such
relief. 15
Employees do not dispute that for a plaintiff to show
entitlement to disgorgement of legal fees for breach of
fiduciary duty, the South Carolina Supreme Court would, at a
minimum, require that the plaintiff satisfy the Restatement
(Third) standard of proving a “clear and serious violation” by
the defendant lawyer. See Corrected Reply Brief of Employees at
19 (citing Restatement (Third) of the Law Governing Lawyers § 37
(2000), for the proposition that “[a] lawyer engaging in a clear
and serious violation of a duty to a client may be required to
forfeit some or all of the lawyer’s compensation for the
matter”). But nothing in the summary judgment record could
justify a conclusion that Attorneys’ conduct rose to that level.
As we have explained, Employees cannot even demonstrate that
they had viable claims at the time Attorneys commenced
15
Because we affirm on this basis, we do not address the
correctness of the district court’s conclusion that Attorneys
were entitled to summary judgment on the fiduciary-duty claim
because it arose out of the same operative facts as the legal
malpractice cause of action.
29
representing them. And Employees’ representation contracts
plainly stated that their attorneys would not be advising them
regarding any workers’ compensation claims. It is possible that
an applicable duty of care may nonetheless have required
Attorneys to protect Employees’ rights. But there would be no
basis for a reasonable factfinder to conclude that any failure
to advise Employees concerning their (non-existent) right to
workers’ compensation claims amounted to “a clear and serious
violation” of their duty to their clients. Thus, the district
court properly granted summary judgment against Employees on the
fiduciary-duty claims as well. 16
III.
In sum, because we conclude that the district court
properly granted summary judgment against Employees, we affirm.
AFFIRMED
16Employees also maintain that the district court erred in
dismissing claims against several Attorneys for lack of
jurisdiction. We conclude, however, that the district court
properly dismissed these parties on that basis.
30