Stephen R. Edwards v. Scapa Waycross Inc.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Stephen R. Edwards, Individually and as Personal
Representative of the Estate of Steven Redfearn Stewart,
Respondent,

v.

Scapa Waycross, Inc., Appellant.

Appellate Case No. 2019-000649

Appeal From York County
Jean Hoefer Toal, Acting Circuit Court Judge

Opinion No. 5931
Heard April 14, 2022 – Filed August 3, 2022

AFFIRMED

William Peele Early, of Pierce, Sloan, Wilson, Kennedy
& Early, LLC, of Charleston; Joseph C. Wilson, IV, of
Joseph C Wilson Law Firm LLC, of Folly Beach; S.
Christopher Collier, of Lewis Brisbois Bisgaard & Smith
LLP, of Atlanta, Georgia; and Robert B. Gilbreath, of
Hawkins Parnell & Young LLP, of Dallas, Texas, all for
Appellant.

Mona Lisa Wallace, of Wallace & Graham PA, of
Salisbury, North Carolina; Kathleen Chewning Barnes,
of Barnes Law Firm LLC, of Hampton; Gregory Lynn
Hyland, of Gregory L. Hyland Attorney at Law LLC, of
Summerville; Thomas H. Hart, III, of Hart Law LLC, of
Summerville; Frederick John Jekel, of Leventis &
Ransom, of Columbia; and William M. Graham, of
Wallace & Graham PA, of Salisbury, North Carolina, all
for Respondent.

WILLIAMS, C.J.: In this mesothelioma case, Scapa Waycross, Inc. (Scapa)
appeals the trial court's (1) denial of its motion for judgment notwithstanding the
verdict (JNOV); (2) granting a new trial nisi additur for Stephen Redfern Stewart's
estate, represented by his son Stephen R. Edwards, regarding survival damages; (3)
denial to reallocate Stewart's pretrial settlement proceeds; and (4) refusal to admit
certain bankruptcy claim forms Stewart filed against other manufacturers of
asbestos-containing products. Principally, Scapa contends Stewart failed to
provide legally sufficient evidence to prove Stewart's workplace exposure to its
products was a substantial factor that caused his mesothelioma. We affirm.

FACTS/PROCEDURAL HISTORY

Stewart was employed by Bowater Southern Paper Corporation from 1963 to 2002
in Catawba, South Carolina. During his employment, Stewart worked on only
paper machine #1, a machine spanning roughly 150 yards that transformed wood
pulp into paper. The machine was composed of four large dryer sections, or
drums, and each section had a top and bottom dryer felt. Dryer felts were large,
weighing well over one thousand pounds and measuring over 150 feet long and
twenty feet wide. The wood pulp sat between the two dryer felts as the felts passed
the pulp continuously over each dryer section; the felts kept the pulp against the
dryer sections and absorbed moisture. A number of the dryer felts used by
Bowater on machine #1 were supplied by Scapa. Of the seventy-two dryer felts
Scapa sold Bowater between 1963 and 1981, twenty-three contained asbestos.
Asbestos constituted between 30 and 70% of a dryer felt's total composition in that
time period. An expert who tested two Scapa asbestos-containing dryer felts that
Bowater used on machine #1 during Stewart's employment stated that one
contained roughly 1,000 pounds of asbestos and the other contained roughly 752
pounds.

While at Bowater, Stewart's job responsibilities routinely involved installing,
cleaning, removing, and disposing of dryer felts and cleaning the entire machine.
Although Stewart and his coworkers were unable to identify which dryer felts
contained asbestos using the naked eye, they all testified to the amount of dust the
dryer felts released into the air during the installation, removal, and disposal
process, and breathing in the dust. One coworker testified that after installing a
dryer felt, the employees would have to use an air hose to blow themselves off due
to the amount of "lint" the dryer felt left on their clothes. They also discussed the
felt removal process in which they used Stanley knives to cut the felts into smaller
pieces, freeing the felts from the machine and allowing them to drop into the
basement. This process also caused the felts to visibly release dust into the air.
Dryer felts would also malfunction and tear off of the machine during the
manufacturing process causing doors on the machine to open and release paper
particles and dust into the air.

Stewart and his coworkers also testified about keeping machine #1 and its building
clean—a process that required freeing large amounts of dust and paper particles
from the machine and cleaning up the dust. To perform this task, the men would
use high-pressure, compressed air hoses to release old dust from the machine.
They also used the hoses to blow the dryer felts to release old, caked paper and
dust from the felts. This process produced large amounts of dust, or felt hairs, into
the air. One coworker testified that during a downtime for the machine, when the
men cleaned it or replaced old dryer felts, the floor could be covered with as much
as six inches of dust and old paper particles. That coworker also testified that he
had seen Stewart covered from head to toe with felt dust and paper after cleaning
machine #1 during a down time.

Stewart retired from Bowater in 2002, and in September of 2012 he was diagnosed
with malignant pleural mesothelioma, an aggressive form of lung cancer caused by
asbestos exposure and inhalation. In February 2013, Stewart initiated this lawsuit
against several entities whose business involved producing, using, or selling
asbestos containing products. He asserted claims for strict liability, negligence,
and breach of the implied warranty of merchantability. In May 2013, Stewart filed
an amended complaint that added Scapa to the lawsuit.

On August 23, 2013, at the age of sixty-nine, Stewart died from mesothelioma, and
Edwards, individually and as personal representative of Stewart's estate, filed a
motion to substitute party and a motion to file a second amended complaint.
Edwards 1 filed the second amended complaint in November 2013, substituting
Stewart's personal representative as the plaintiff and adding claims for wrongful
death and survival. Prior to trial, Stewart settled with all defendants except for
Scapa, which proceeded to trial. The jury returned a verdict for Stewart on the
negligence claim and awarded $600,000 in damages for the survival action and
$100,000 in damages for the wrongful death action.

1
Hereinafter referred to as Stewart.
Following the verdict, Scapa filed motions for setoff, for production of Stewart's
settlements and payments with all third-party tortfeasors, and for JNOV. Stewart
did not oppose the motion for setoff, but he filed a motion for new trial nisi
additur, asking the trial court to increase the verdict to $2.3 million for the survival
claim and $600,000 for the wrongful death claim. After a hearing in which the
trial court indicated its intent to grant the motion for additur, Scapa filed a motion
to reallocate Stewart's settlement proceeds. Stewart had received $1.036 million in
prior settlements and he had uniformly allocated 80% of the proceeds towards the
wrongful death claim and the remainder to the survival claim.

The trial court issued an order addressing each post trial motion. The trial court
granted Stewart's motion for new trial nisi additur and increased the survival
damages award from $600,000 to $1 million and did not adjust the wrongful death
award. The court denied Scapa's motion for JNOV and its motion for production
of Stewart's settlements and payments with all third-party tortfeasors. The court
granted Scapa's motion for setoff and reduced the $1 million survival damages by
$207,200 (20% of Stewart's prior settlement allocation) and the wrongful death
award by $828,000 (80% of settlement allocation), which exceeded the jury's
award for wrongful death. After applying the setoff rules, the trial court entered
judgment against Scapa in the amount of $792,800, the amount remaining for
Stewart's survival action. The court also refused to adjust Stewart's internal
allocation of settlement proceeds. This appeal followed.

ISSUES ON APPEAL

I. Did the trial court err in refusing to grant Scapa's motion for JNOV?

II. Did the trial court err in granting Stewart's motion for new trial nisi additur?

III. Did the trial court err in refusing to reallocate Stewart's apportionment of
settlement proceeds?

IV. Did the trial court err in refusing to admit claims Stewart submitted against
bankrupt manufacturers of asbestos-containing products that Bowater used
during Stewart's employment?

LAW/ANALYSIS

I. JNOV
Scapa asserts the trial court abused its discretion in failing to grant its motion for
JNOV because Stewart failed to prove specific causation between his workplace
exposure to their dryer felts and his mesothelioma. Specifically, Scapa contends
Stewart failed to meet the specific causation standard set forth in Henderson v.
Allied Signal, Inc. 2 through scientifically reliable and relevant evidence because his
experts (1) used the "cumulative dose" theory in formulating their opinions and (2)
did not provide a specific amount of asbestos Stewart was exposed to from its
dryer felts or the threshold exposure to asbestos above which he had an increased
risk of developing mesothelioma. We disagree and affirm on this issue.

"A motion for a JNOV is 'merely a renewal of [a] directed verdict motion.'" Jolly
v. Gen. Elec. Co., 435 S.C. 607, 623, 869 S.E.2d 819, 827 (Ct. App. 2021)
(alteration in original) (quoting RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 399
S.C. 322, 331, 732 S.E.2d 166, 171 (2012)), petition for cert. filed April 11, 2022.
Appellate courts must follow the same standard as trial courts when ruling on a
JNOV motion: courts must view the evidence and all inferences reasonably drawn
from the evidence in a light most favorable to the nonmoving party. Id. at 623, 869
S.E.2d at 827–28. "If more than one reasonable inference can be drawn or if the
inferences to be drawn from the evidence are in doubt, the case should be
submitted to the jury." Id. at 623, 869 S.E.2d at 828 (quoting Williams Carpet
Contractors, Inc. v. Skelly, 400 S.C. 320, 325, 734 S.E.2d 177, 180 (Ct. App.
2012)).

In evaluating a motion for JNOV, trial courts are concerned with the existence of
evidence, not its weight, and neither appellate nor trial courts have authority to
resolve credibility issues or conflicts in the testimony or evidence. Id. Finally, a
jury's verdict "must be upheld unless no evidence reasonably supports the jury's
findings[,]" i.e., a trial court should only grant a motion for JNOV if no reasonable
jury could have reached the verdict. Id. (quoting Curcio v. Caterpillar, Inc., 355
S.C. 316, 320, 585 S.E.2d 272, 274 (2003)).

A. Causation

In products liability cases, a plaintiff seeking recovery under a theory of negligence
must prove the proximate cause of his injury was the defendant's defective product.
Id. at 624, 869 S.E.2d at 828. In South Carolina, plaintiffs must prove both
causation in fact and legal causation, established through the foreseeability of the

2
373 S.C. 179, 644 S.E.2d 724 (2007).
injury, to sufficiently prove proximate causation. Bray v. Marathon Corp., 356
S.C. 111, 116–17, 588 S.E.2d 93, 95 (2003). Proximate cause is a question of fact
typically reserved for the jury; a trial court's sole inquiry regarding proximate
cause is to determine whether only one reasonable interpretation of the evidence
exists, and therefore, only one reasonable conclusion can be reached. Jolly, 435
S.C. at 624, 869 S.E.2d at 828.

Further, in toxic tort cases, medical causation requires a plaintiff prove (1) general
causation, (2) specific causation, and (3) if there are multiple sources of exposure
to a toxin, that the plaintiff's exposure to the defendant's product was a "substantial
factor" in his development of a disease. Id. at 624–25, 869 S.E.2d at 828–29.
"General causation is whether a substance is capable of causing a particular injury
or condition in the general population, while specific causation is whether a
substance caused a particular individual's injury." Id. at 625, 869 S.E.2d at 828
(quoting Fisher v. Pelstring, 817 F. Supp. 2d 791, 814 (D.S.C. 2011)). "General
causation 'is generally not an issue in asbestos litigation' due to the parties'
acknowledgment that exposure to asbestos causes mesothelioma." Id. at 625, 869
S.E.2d at 829 (quoting Recent Case, Tort Law — Expert Testimony in Asbestos
Litigation — District of South Carolina Holds the Every Exposure Theory
Insufficient to Demonstrate Specific Causation Even If Legal Conclusions Are
Scientifically Sound. — Haskins v. 3M Co., Nos. 2:15-cv-02086, 3:15-cv-02123,
2017 WL 3118017 (D.S.C. July 21, 2017), 131 HARV. L. REV. 658, 658 n.4
(2017)). Specific causation requires the plaintiff "do more than simply introduce
into evidence epidemiological studies that show a substantially elevated risk." Id.
(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997)).
He must prove similarities between himself and the individuals in the studies,
which includes proof that (1) he was exposed to the same toxin, (2) the exposure or
dose level was comparable to those in the study, (3) the exposure to the toxin
occurred before the onset of the injury, and (4) the latency period of the injury is
consistent with the individuals in the study. Id.

Moreover, a plaintiff proves a specific product is a substantial factor in the
development of his disease when the evidence shows the plaintiff was "expos[ed]
to a specific product on a regular basis over some extended period of time in
proximity to where the plaintiff actually worked." Id. at 626, 869 S.E.2d at 829
(quoting Henderson, 373 S.C. at 185, 644 S.E.2d at 727); see also Lohrmann v.
Pittsburgh Corning Corp., 782 F.2d 1156, 1162–63 (4th Cir. 1986) (explaining
exposure to a toxic product is actionable when the exposure is frequent, regular,
and proximate). The substantial factor test requires the plaintiff to prove "more
than a casual or minimum contact with the product" and introduce evidence that
would allow the jury to conclude that the plaintiff's exposure to the defendant's
toxic product was a substantial factor in bringing about the injury. Lohrmann, 782
F.2d at 1162.

We find Stewart presented sufficient evidence to prove general causation. See
Jolly, 435 S.C. at 625, 869 S.E.2d at 828 ("General causation is whether a
substance is capable of causing a particular injury or condition in the general
population."). Dr. Arnold Brody, Stewart's expert pathologist whose career
focused on lung cell biology, explained that chrysotile asbestos fibers, the asbestos
Scapa used to manufacture its dryer felts, are capable of reaching a human's lungs
after a breath of air. He noted that chrysotile asbestos, like all other forms, is toxic
and can cause mesothelioma once it reaches the pleural mesothelial cells
surrounding the lungs. He also stated that individuals who are exposed to asbestos
at levels above background (the amount in the air) for extended periods of time
have an increased risk of developing mesothelioma.

Dr. David Harpole, Stewart's cardiothoracic surgeon who specialized in chest
cancers, testified that asbestos exposure, over time, has been the number one cause
of mesothelioma. He explained that exposure to asbestos fibers causes the
mesothelial cells to lose their ability to quit regenerating new cells, causing the
pleura to expand and produce significant amounts of fluid in the lungs. As the
excess fluid builds up, it crowds the lungs making it difficult to breath and drowns
the lungs with fluid. Dr. Harpole also stated, "[T]he longer and the more exposure
[an individual has to asbestos] the more likely [he is] to have asbestos related lung
diseases with mesothelioma being one of them."

Finally, Dr. Arthur Frank, a physician specializing in occupational medicine,
testified via deposition that all types of asbestos, including chrysotile, and all types
of exposures are toxic. He further explained that in North America, while it is a
rare disease, mesothelioma is almost exclusively related to asbestos exposure. Dr.
Frank also stated it is generally accepted in the scientific, medical, and industrial
community that there is no known safe level of asbestos exposure. In explaining
an individual's "dose response" to asbestos, a medical concept that spans to
practically every known disease, he explained that as an individual's dose increases
through exposure, the likelihood of a biological response, whether it be asbestosis
or mesothelioma, also increases.

Based on the testimony of these three experts, we find Stewart presented sufficient
evidence for a jury to find asbestos exposure can cause mesothelioma. See id. at
624, 869 S.E.2d at 828 ("In considering a JNOV, the trial court is concerned with
the existence of evidence, not its weight." (quoting Curcio, 355 S.C. at 320, 585
S.E.2d at 274)); see id at 625, 869 S.E.2d at 828–29 (stating it is generally settled
that asbestos causes mesothelioma in humans).

We also find Stewart provided sufficient evidence for the jury to determine Scapa's
dryer felts were a specific cause and substantial factor in Stewart's development of
mesothelioma. It was undisputed at trial that Scapa produced dryer felts that
contained large quantities of asbestos, that twenty-three of those asbestos-
containing dryer felts were used on paper machine #1 during Stewart's employment
at Bowater, and that Scapa sold asbestos-containing felts to Bowater that were used
on paper machine #1 from 1963 to 1981. Stewart and his coworkers testified
regarding their job responsibilities, the extent their jobs required them to interact
with dryer felts, and how they breathed in dryer felt dust. Stewart stated during his
deposition that while he worked as a utility man, his main job responsibility was
cleaning the machine and the building around the machine. He explained this
involved cleaning a significant amount of dust and other materials off of the
machine that were produced during the paper-making process. Other job
responsibilities required him to handle the felts on a regular basis. This included
installing, maintaining, and removing the old felts. One coworker stated that he
remembered seeing Stewart covered from head to toe in dust and paper particles
once after cleaning a dryer felt. Another coworker stated that employees had to
use air hoses to blow the felt dust off of each other after the installation process.
While removing old felts, which involved cutting through the thick, fibrous
material with a Stanley knife, Stewart and his coworkers explained that the felts
would release visible dust into the air. Stewart also explained that cleaning dryer
felts with high pressure air hoses caused dust from the felts to become airborne.
Another coworker stated that after cleaning paper machine #1 during a down time
the floor could have as much as six inches of dust on it. All but one position
Stewart held while at Bowater required him to participate in cleaning the felts or
manually handling the felts.

Dr. James Millette, an expert in material sciences who specialized in asbestos,
testified regarding two Scapa dryer felts that were used on paper machine #1. Dr.
Millette stated one felt contained over 1,000 pounds of asbestos fibers (roughly 99
quadrillion fibers) and the other contained over 700 pounds of fibers (roughly 69
quadrillion fibers). He found that after testing the two felts, they both released
breathable asbestos fibers into the air after being blown with compressed air or
simply touched with a wet finger. After blowing compressed air across the felts as
a test, Dr. Millette concluded the felts released thirty asbestos fibers per cubic
centimeter of air. He also concluded that physically handling the felts and cutting
the felts with a knife released breathable asbestos fibers into the air.

Christopher DePasquale, a certified industrial hygienist, stated his job evolved
around identifying, recognizing, evaluating, and controlling occupational health
hazards. After visiting Bowater, DePasquale testified that based on Stewart's job
responsibilities and dealing with Scapa dryer felts that contained between 20 and
70% chrysotile asbestos, Stewart was significantly exposed to asbestos fibers
during the time Bowater utilized Scapa asbestos-containing dryer felts. He
testified Stewart's levels of occupational exposure to asbestos from Scapa's felts
placed Stewart at a greater risk of developing mesothelioma and estimated that he
was exposed to 0.1 to 5.0 asbestos fibers per cubic centimeter during each
felt-replacement process. He testified that the 20 to 70% asbestos composition of
the Scapa dryer felts created a substantial possibility that asbestos fibers would be
liberated from the felts during the paper-making process and breathed in by
employees.

Dr. Frank testified that while science cannot point to one specific exposure as the
sole cause of mesothelioma in an individual, he explained mesothelioma is caused
by an individual's cumulative exposure to all types of asbestos from all types of
asbestos-containing products the individual has encountered. This theory does not
suggest that every fiber is a cause of the disease, or that science points to an exact
number of fibers necessary to cause mesothelioma; however, it does suggest that
"as the amount accumulates in somebody's body . . . , [he or she is] more likely to
get disease than if it was at a lower level." Dr. Frank stated, based on a review of
Stewart's records, that through his work at Bowater (spanning roughly forty years),
Stewart was exposed to asbestos from Scapa's dryer felts. He explained that
Stewart's testimony indicated that at times during his employment the air would be
cloudy with dust from the dryer felts and because the felts contained 20 to 70%
asbestos fibers, the air contained a substantial amount of asbestos. Based on a
degree of medical certainty, Dr. Frank testified that Stewart died from
mesothelioma caused by his exposure to asbestos and that his exposure from
Scapa's asbestos-containing dryer felts was a substantial contributing factor to his
illness and subsequent death.

We find the evidence presented above is sufficient for a jury to find Scapa's
asbestos-containing dryer felts were a substantial factor in Stewart developing and
dying from mesothelioma. In sum, the evidence showed that (1) dryer felts release
large quantities of dust during the paper-making process; (2) Stewart worked
closely with the dryer felts on a regular basis, and all but one of his positions at
Bowater required him to regularly handle the dryer felts; (3) Scapa asbestos-
containing felts were used at Bowater from 1963 to 1981, roughly half of Stewart's
employment; (4) there is not a known safe level of asbestos exposure; and (5)
Stewart regularly breathed in dust created from the paper-manufacturing process,
which included asbestos fibers from the dryer felts.

B. Cumulative Dose Testimony

Scapa argues the trial court erred in failing to grant its motion for JNOV because
Stewart employed the "each and every exposure" theory of causation at trial.
Scapa states that Dr. Frank explained the cumulative dose or "cumulative
exposure" theory to the jury and utilized that theory in reaching his opinion as to
whether Scapa's dryer felts were a substantial factor in causing Stewart's
mesothelioma. Scapa conflates these two theories and claims they are inconsistent
with the specific causation standard set forth in Henderson. We disagree.

"The 'each and every exposure' theory espouses the view that 'each and every
breath' of asbestos is substantially causative of mesothelioma.'" Jolly, 435 S.C. at
633, 869 S.E.2d at 833 (quoting Rost v. Ford Motor Co., 151 A.3d 1032, 1044
(2016)); see also Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 846 (E.D.N.C.
2015) ("Also referred to as 'any exposure' theory, or 'single fiber' theory, it
represents the viewpoint that, because science has failed to establish that any
specific dosage of asbestos causes injury, every exposure to asbestos should be
considered a cause of injury."). This court has recently refused to conflate the
cumulative dose theory with the each and every exposure theory, concluding that
an expert's opinion which states "that a certain exposure contributes to an
individual's cumulative dose does not espouse the view that 'each and every breath'
of asbestos is 'substantially' causative of mesothelioma or imply that one exposure
meets the legal requirement for causation." Jolly, 435 S.C. at 635–36, 869 S.E.2d
at 834. Rather, this court viewed testimony regarding a plaintiff's cumulative dose
as "background information essential for the jury's understanding of medical
causation, which must be based on science." Id. at 636, 869 S.E.2d at 834–35.

Here, Dr. Frank deployed the cumulative dose theory during his testimony, and he
used it to explain how an individual's risk of developing mesothelioma or other
lung disease increases as that individual's dose of asbestos increases through
exposure. Dr. Frank expressly rejected the conflation of the cumulative dose
theory and the each and every exposure theory when he stated that all of an
individual's exposures to asbestos contribute to his likelihood of developing
disease, but "that does not mean that each exposure was the one that caused the
mesothelioma." He explained, "we never know which fiber on which day from
which product did it. But they all clearly increase the risk and ultimately have to
be said to be contributory to that individual getting the disease." The potential
exists for an individual to develop lung disease from asbestos with every fiber that
individual intakes, "even though they all do not actually cause the disease." The
"cumulative dose" is simply how physicians and occupational health practitioners
describe the cause of mesothelioma from asbestos exposure—as the amount
accumulates in the body, the likelihood of disease increases. Dr. Frank testified
that this is the medical reasoning behind the cause of all but two diseases—the
AIDS virus and botulism. Because Dr. Frank used Stewart's cumulative dose as a
means to describe the medical reasoning as to how humans develop mesothelioma
from asbestos exposure, we find the trial court did not err in failing to grant Scapa's
JNOV motion or in allowing Dr. Frank's testimony on the cumulative dose theory
at trial. See id. at 635–36, 869 S.E.2d at 834 (providing an expert "[s]tating that a
certain exposure contributes to an individual's cumulative dose does not espouse
the view that 'each and every breath' of asbestos is 'substantially' causative of
mesothelioma or imply that one exposure meets the legal requirement for
causation"). Therefore, we affirm on this issue.

II. New Trial Nisi Additur

Scapa claims the trial court erred in granting Stewart's motion for a new trial nisi
additur and increasing his survival damages from $600,000 to $1 million. We
disagree and affirm on this issue.

"The consideration of a motion for a new trial nisi additur requires the trial [court]
to consider the adequacy of the verdict in light of the evidence presented." Vinson
v. Hartley, 324 S.C. 389, 405, 477 S.E.2d 715, 723 (Ct. App. 1996). "When a
party moves for a new trial based on a challenge that the verdict is either excessive
or inadequate, the trial judge must distinguish between awards that are merely
unduly liberal or conservative and awards that are actuated by passion, caprice, or
prejudice." Riley v. Ford Motor Co., 414 S.C. 185, 192, 777 S.E.2d 824, 828
(2015) (quoting Allstate Ins. Co. v. Durham, 314 S.C. 529, 530–31, 431 S.E.2d
557, 558 (1993)). "When the verdict indicates that the jury was unduly liberal or
conservative in its view of the damages, the trial judge alone has the power to
[alter] the verdict by the granting of a new trial nisi." Id. (alteration in original)
(quoting Durham, 314 S.C. at 531, 431 S.E.2d at 558). "'Compelling reasons'"
must be given to justify the trial court invading the jury's province in this manner."
Id. at 193, 777 S.E.2d at 829.
"The trial [court that] heard the evidence and is more familiar with the evidentiary
atmosphere at trial possesses a better-informed view of the damages than [an
appellate court.]" Vinson, 324 S.C. at 405, 477 S.E.2d at 723. "Motions for a new
trial nisi 'are addressed to the sound discretion of the trial [court].'" Jolly, 435 S.C.
at 654, 869 S.E.2d at 845 (quoting Riley, 414 S.C. at 192, 777 S.E.2d at 828).
"However, the [trial] court's exercise of discretion 'is not absolute[,] and it is the
duty of [appellate courts] in a proper case to review and determine whether there
has been an abuse of discretion amounting to error of law.'" Id. at 654–55, 869
S.E.2d at 845 (second alteration in original) (quoting Riley, 414 S.C. at 192–93,
777 S.E.2d at 828–29). Appellate courts will not disturb the trial court's decision
to grant a new trial nisi additur unless the trial court's findings are wholly
unsupported by the evidence or the conclusions reached are controlled by an error
of law. Proctor v. Dep't of Health & Env't Control, 368 S.C. 279, 320, 628 S.E.2d
496, 518 (Ct. App. 2006). Damages in a survival action are awarded to the benefit
of the decedent's estate and include damages for medical, surgical, and hospital
bills, conscious pain and suffering, and mental distress of the deceased. Welch v.
Epstein, 342 S.C. 279, 303, 536 S.E.2d 408, 420–21 (Ct. App. 2000).

In this case, the jury returned a verdict that awarded Stewart $600,000 for his
survival claim and $100,000 for his wrongful death claim. After granting Stewart's
motion for new trial nisi additur, the trial court issued an order that increased the
survival award by $400,000 to a total of $1 million. As justification for the
additur, the trial court stated that both parties stipulated to Stewart's medical bills
and economic damages and Scapa did not contradict Stewart's evidence of
noneconomic damages consisting of pain and suffering, loss of enjoyment of life,
and mental anguish. The trial court also evaluated damages awarded for pain and
suffering in comparable mesothelioma cases and determined that similar
circumstances justified awards ranging from $1.5 million to more than $20 million.
Based on the goal of compensatory damages in South Carolina, as stated in Clark
v. Cantrell, "to restore the injured party, as nearly as possible through the payment
of money, to the same position he or she was in before the wrongful injury
occurred," the trial court decided the jury's award of survival damages was
insufficient. 339 S.C. 369, 378–379, 529 S.E.2d 528, 533 (2000). The trial court
then itemized the jury's $600,000 survival award as being composed of $241,000
for Stewart's stipulated medical bills and $359,000 for his noneconomic damages.
In conclusion, the trial court found that the noneconomic damages were
insufficient and failed to accord with the stipulated evidence and fell "inextricably
short of providing fitting compensation for the magnitude of [Stewart's] losses."
We find the trial court did not abuse its discretion in granting the additur. As the
trial court noted, both parties stipulated that Stewart was diagnosed with malignant
pleural mesothelioma and his medical bills associated with treatment were
$241,822.70. It was undisputed at trial that Stewart suffered greatly as he
attempted to treat his disease. His rapid deterioration and ultimate death is well
documented and uncontroverted in the record. Although he had several
comorbidities—diabetes, a prior heart attack, skin cancer, bladder cancer, prostate
cancer, hypertension, and chronic obstructive pulmonary disease—no evidence in
the record showed suffering from those health problems interacted with or
amplified the pain and suffering Stewart felt from the mesothelioma.

Stewart suffered from lung infections for several years prior to his diagnosis with
mesothelioma. What caused Stewart to seek further medical evaluation
immediately before his diagnosis was severe pain under his armpits—pain from
even a slight touch. After his diagnosis in October 2012, Stewart endured several
rounds of chemotherapy and several rounds of thoracentesis, a procedure in which
doctors drain excess fluid produced by the tumor. Dr. Harpole, Stewart's
cardiothoracic surgeon, explained thoracentesis is unpleasant and that he could not
imagine having to withstand the procedure twice a week for three months because
doctors stick a large needle through the ribs into the lung to drain the excess fluid.
Dr. Harpole also stated that draining the fluid hurt because the tube creates a
vacuum that sucks on the lung. Stewart's chemotherapy was administered through
two drugs, one of which Dr. Harpole described as a "sledge hammer." Due to the
chemotherapy, Stewart lost weight from a lack of appetite, and he testified that his
digestive track was dysfunctional and that he was constantly constipated.

Stewart explained during his deposition that his life was very different after his
diagnosis. He could barely walk his dog and got winded by walking down the
street a short distance. He could no longer complete yard work, garden, clean his
house; he could no longer sleep well and had to rely on sleeping pills; he could no
longer drive to meet his family in Columbia, a destination where he and his
grandchildren would share a meal, visit the zoo, or go to a museum. He described
how he was too exhausted to do anything and swelling with emotions, stated, "I
never imagined my life would come to what it is."

Despite mesothelioma being a death sentence, Stewart was adamant he prolong his
life. He underwent the aforementioned rounds of chemotherapy and thoracentesis,
and he opted for a maximally invasive pleurectomy, which Dr. Harpole described
as a dissection of the mesothelioma tumor and surrounding plaques from the lung.
This procedure required Dr. Harpole to remove one of Stewart's ribs, collapse his
lung, remove his pericardium (heart sack), scrape the tumor off his lung, reinflate
the lung, and then reconstruct his diaphragm and heart sack.

In spite of these efforts, Stewart was unable to add any substantial amount of time
to his life. He was unable to complete rehabilitation after his pleurectomy.
According to Dr. Harpole, it was not from lack of effort; at that point he was "just
too debilitated." In August 2013, five months after surgery, Stewart succumbed to
mesothelioma at the age of sixty-nine, less than a year after diagnosis.

Because both parties stipulated to Stewart's economic damages (in the form of
medical bills) and the record is replete with evidence of his pain and suffering,
which was unrefuted by Scapa, we find the trial court was well within its discretion
in granting Stewart a new trial nisi additur and increasing his survival damages to
$1 million. See Riley, 414 S.C. at 192, 777 S.E.2d at 828 ("When the verdict
indicates that the jury was unduly liberal or conservative in its view of the
damages, the trial judge alone has the power to [alter] the verdict by the granting
of a new trial nisi." (quoting Durham, 314 S.C. at 531, 431 S.E.2d at 558)).
Further, by meticulously analyzing the details of Stewart's pain and suffering, loss
of enjoyment of life, and mental anguish, and in analyzing other awards for similar
cases, we find the trial court provided ample justification for increasing Stewart's
survival award. See id. at 193, 777 S.E.2d at 829 ("'Compelling reasons' must be
given to justify the trial court invading the jury's province."). Accordingly, we
affirm on this issue. See Proctor, 368 S.C. at 320, 628 S.E.2d at 518 (stating
appellate courts will not disturb a trial court's decision to grant a new trial nisi
additur unless the trial court's findings are wholly unsupported by the evidence or
the conclusions reached are controlled by an error of law).

III. Reallocation of Settlement Proceeds

Scapa argues the trial court erred in failing to reallocate Stewart's internal
apportionment of settlement proceeds between the wrongful death and survival
actions, claiming the allocation did not reflect "fairness and justice." Scapa claims
the trial court should have reallocated the settlement funds "in a manner reasonable
under the facts." We disagree and affirm on this issue.

"A non[]settling defendant is entitled to credit for the amount paid by another
defendant who settles for the same cause of action." Rutland v. S.C. Dep't of
Transp., 400 S.C. 209, 216, 734 S.E.2d 142, 145 (2012); see also Riley, 414 S.C. at
195, 777 S.E.2d at 830 ("The right to setoff has existed at common law in South
Carolina for over 100 years."). "The reason for allowing such a credit is to prevent
an injured person from obtaining a second recovery of that part of the amount of
damages sustained which has already been paid to him." Welch, 342 S.C. at 312,
536 S.E.2d at 425. "In other words, there can be only one satisfaction for an injury
or wrong." Id. In 1988, South Carolina codified these equitable principles as part
of the South Carolina Contribution Among Tortfeasors Act. 3

"The trial court's jurisdiction to set off one judgment against another is equitable in
nature and should be exercised when necessary to provide justice between the
parties." Welch, 342 S.C. at 313, 536 S.E.2d at 425. "Despite a defendant's
entitlement to setoff, whether at common law or under section 15-38-50, any
'reduction in the judgment must be from a settlement for the same cause of action.'"
Riley, 414 S.C. at 196, 777 S.E.2d at 830 (quoting Hawkins v. Pathology Assocs. of
Greenville, P.A., 330 S.C. 92, 113, 498 S.E.2d 395, 407 (Ct. App. 1998)). "Thus,
where a settlement involves more than one claim, the allocation of settlement
proceeds between various causes of action impacts the amount a non[]settling
defendant may be entitled to offset." Id.

Here, upon an in camera review of the releases signed by Stewart and the settling
defendants, the trial court verified Stewart received $1,036,000 in pretrial
settlements. Stewart conceded Scapa was entitled to setoff and the trial court
granted Scapa's motion for setoff. The trial court also determined that Stewart had
internally allocated 20% of each settlement to the survival cause of action and 80%
to the wrongful death cause of action. This corresponded with settlement totals of
$207,200 for the survival action and $828,000 for the wrongful death action. The
court then applied the setoff rules and reduced the survival award of $1 million to
$792,800 and negated the wrongful death award.

3
In pertinent part, section 15-38-50 (2005 & Supp. 2021) reads as follows:

When a release or a covenant not to sue or not to enforce
judgment is given in good faith to one of two or more
persons liable in tort for the same injury or the same
wrongful death . . . it does not discharge any of the other
tortfeasors from liability for the injury or wrongful death
unless its terms so provide, but it reduces the claim
against the others to the extent of any amount stipulated
by the release or the covenant, or in the amount of the
consideration paid for it, whichever is the greater . . . .
Scapa now requests this court to find the trial court erred in denying its request to
reallocate Stewart's internal apportionment to 90% for the survival cause of action
and 10% for the wrongful death cause of action as this would be more "reasonable
under the facts" and not just advantageous to Scapa. 4 We find this argument is
without merit as Scapa points only to the fact that the trial court favored Stewart's
survival action in granting the additur. See In re Wells, 43 S.C. 477, 485, 21 S.E.
334, 337 (1895) (finding the party seeking departure from the application of
standard setoff rules bears the burden of proof and must be "prepared to justify
such [reallocation] as fair, bona fide, and just"). Scapa maintains the trial court
finding that the evidence presented at trial warranted an increase of the survival
claim to make it 90% of the total damages justified a reallocation of Stewart's
settlement proceeds to match the respective award percentages—90% for survival
and 10% for wrongful death.

Scapa's argument stands in contrast to the principle that plaintiffs who settle with
defendants gain control and leverage in relation to nonsettling defendants—control
that is often reflected in the plaintiff's ability to apportion settlement proceeds in a
manner most advantageous to it. See Riley, 414 S.C. at 197, 777 S.E.2d at 831. As
the Riley court noted,

Settlements are not designed to benefit nonsettling third
parties. They are instead created by the settling parties in
the interests of [settling] parties. If the position of a
nonsettling defendant is worsened by the terms of a
settlement, this is the consequence of a refusal to settle.
A defendant who fails to bargain is not rewarded with the
privilege of fashioning and ultimately extracting a benefit
from the decisions of those who do.

Id. (quoting Lard v. AM/FM Ohio, Inc., 901 N.E.2d 1006, 1018 (Ill. App. Ct.
2009)).

Scapa's "percentages-based allocation" argument is an attempt to refashion a
disadvantageous allocation of the settlement proceeds. Merely because Stewart's
internal allocation of the proceeds is not in Scapa's best interests is "insufficient to
justify [an] appellate reapportionment for the sole purpose of benefitting [a

4
Indeed, such a reallocation of the settlement proceeds would be greatly
advantageous to Scapa and would result in a substantial discount, costing Scapa
only $67,600 in total damages to Stewart. A savings of roughly $725,200.
nonsettling party]." Id. Because we do not perceive the effect of setoff based on
Stewart's internal allocation as improper, unreasonable under the facts of this case,
or unfair simply because it favored Stewart and did not reflect percentages that
corresponded with the percentage of each award, we find the trial court did not err
in denying Scapa's motion to reallocate Stewart's settlement proceeds for the
purpose of setoff. See id. ("If the position of a nonsettling defendant is worsened
by the terms of a settlement, this is the consequence of a refusal to settle. A
defendant who fails to bargain is not rewarded with the privilege of fashioning and
ultimately extracting a benefit from the decisions of those who do." (quoting Lard,
901 N.E.2d at 1019)). Therefore, we affirm on this issue.

IV. Bankruptcy Claims

Scapa argues the trial court erred in refusing to admit claims Stewart filed with
bankruptcy trusts established by companies that manufactured asbestos-containing
products used at Bowater. Scapa asserts the claims were admissible as an
admission of a party opponent and under Smith v. Tiffany. 5 In holding the claims
inadmissible, Scapa contends the trial court "made it impossible for Scapa to try its
empty-chair defense." We disagree and affirm on this issue.

The admission or exclusion of evidence is within the sound discretion of the trial
court, and the court's decision will not be disturbed absent an abuse of such
discretion. Fields v. Reg. Med. Ctr. Orangeburg, 363 S.C. 19, 25, 609 S.E.2d 506,
509 (2005). An abuse of discretion occurs when the trial court's decision is based
on an error of law or factual conclusion that lacks any evidentiary support within
the record. Id. at 26, 609 S.E.2d at 509.

Here, during a pretrial motion, Scapa sought approval from the trial court to admit
claims Stewart submitted to bankrupt companies' trusts. Scapa contended it only
sought to admit the claims as a party admission of asbestos exposure to other
companies' products, not to prove Stewart requested or may have received money
from those companies. The trial court decided the issue under Smith and denied
Scapa's request. In making its ruling under Smith, the court found that evidence
showing the existence of settling defendants, "other pots of money," and claims
against other parties was inadmissible during trial and was properly considered
during the setoff portion of trial. In differentiating between Scapa's request to
admit the bankruptcy claims with an attempt to establish an empty-chair defense,
the court noted the empty chair defense is an attempt to introduce direct evidence

5
419 S.C. 548, 799 S.E.2d 479 (2017).
of the liability of a bankrupt company for the injuries Stewart suffered—evidence
the court would admit. The trial court determined Scapa attempted "to put before
the jury the fact that a bankruptcy claim was made on the altar of saying that it's an
admission of a party opponent."

Our appellate courts hold fast to the longstanding principle that evidence of
conduct or statements made in compromise negotiations is inadmissible because
the law favors compromise. See QHG of Lake City, Inc. v. McCutcheon, 360 S.C.
196, 209, 600 S.E.2d 105, 111 (Ct. App. 2004). Under Rule 408, SCRE,

Evidence of . . . accepting or offering or promising to
accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as
to either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This rule does
not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course
of compromise negotiations. This rule also does not
require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or
prosecution.

We find Stewart's trust claims are analogous to an offer or promise to accept
compensation for his contact with the bankrupt organizations' asbestos-containing
products. In other words, Stewart's claims are an offer to compromise. These
settlement trusts are unique in that Stewart's submission of a claim, if he is deemed
qualified by the trustee, constitutes his acceptance of whatever amount the trust
offers as settlement. See Oddo v. Asbestos Corp. Ltd., 173 So. 3d 1192, 1217 (La.
Ct. App. 2015) (holding the trial court did not err in excluding bankruptcy trust
claims filed by a mesothelioma patient). Although these claims could amount to a
party admission, this type of admission—made for the purpose of settling a
claim—is precisely what Rule 408, SCRE, was designed to exclude at trial. The
purpose of Rule 408 is to encourage free and unfettered negotiation while
providing parties peace of mind that their negotiations—concessions, denials,
admissions, and claim amounts—cannot be used against them to prove liability for
the disputed claims or its amount at trial. See Rule 408, SCRE ("Evidence
of . . . accepting or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed as to
either validity or amount, is not admissible to prove liability for or invalidity of the
claim or its amount."); McCutcheon, 360 S.C. at 209, 600 S.E.2d at 111 ("Because
the law favors compromises, our appellate courts have long held that testimony as
to negotiations and offers to compromise are inadmissible for proving liability.");
Hunter v. Hyder, 236 S.C. 378, 387, 114 S.E.2d 493, 497 (1960) ("This Court has
held that compromises are favored and evidence of an offer or attempt to
compromise or settle a matter in dispute cannot be given in evidence against the
party by whom such offer or attempt was made."); Fesmire v. Digh, 385 S.C. 296,
307–08, 683 S.E.2d 803, 809 (Ct. App. 2009) ("[Rule 408, SCRE] contemplates
that the parties need to feel free to make certain assumptions for the purpose of
settlement negotiations and that those statements are assumed by the author to be
true only for the purpose of compromise negotiations.").

Further, we find that Scapa's empty-chair defense argument fails to grasp the
nature and purpose of these unique trusts and the empty-chair defense. "The
empty-chair defense is the defendant's 'right to assert another potential tortfeasor,
whether a party or not, contributed to the alleged injury or damages' and was
codified in the Uniform Contribution Among Tortfeasors Act (the Act) at section
15-38-15 of the South Carolina Code (Supp. 2020)." Dawkins v. Sell, 434 S.C.
572, 590, 865 S.E.2d 1, 10 (Ct. App. 2021) (quoting Smith, 419 S.C. at 557, 799
S.E.2d at 484). In seeking to establish an empty-chair defense, a defendant must
assign fault for the plaintiff's injury to another party by providing evidence to the
fact-finder that is sufficient for it to determine whether the party's "actions were the
cause of the plaintiff's injuries." Machin v. Carus Corp., 419 S.C. 527, 542–43,
799 S.E.2d 468, 476 (2017). Here, the settlement claims Stewart filed would not
provide evidence to the jury that is sufficient for it to determine if the bankrupt
companies' products were the cause of Stewart's mesothelioma. The claims would
only show that Stewart could have been exposed to their products and that he was
seeking compensation from the trusts for his mesothelioma. The claims do not in
themselves provide a link between Stewart's mesothelioma and the bankrupt
companies' products.

Moreover, contrary to Scapa's argument on appeal, the trial court's ruling in no
way "made it impossible for Scapa to try its empty-chair defense." The record is
replete with instances of Scapa interrogating witnesses regarding other companies
that produced asbestos-containing dryer felts, insulation, and valves used at
Bowater. Scapa named thirteen manufacturers of asbestos-containing products
used at Bowater during Stewart's employment at trial. Therefore, we find the trial
court did not err in refusing to admit the bankruptcy trust claims and did not
prevent Scapa from trying its empty-chair defense.

CONCLUSION

Accordingly, the trial court's rulings are

AFFIRMED.

KONDUROS and VINSON, JJ., concur.