Doug MacKelcan and Skyler Wilson represented a community association and its property manager in two complaints before the South Carolina Human Affairs Commission.  Residents of the community and members of the association alleged the association and its manager discriminated against them by refusing to grant reasonable accommodations from the association’s governing documents allegedly needed because of one of the resident’s disabilities.  Doug and Skyler worked with the Commission and established the residents’ claims had no merit, and the Commission found there was no reasonable cause to believe discrimination had occurred, dismissing the complaints.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

The Fourth Circuit Court of Appeals affirmed summary judgment in favor of Lacey Houghton and Skyler Wilson’s client, a nurse sued by a correctional facility inmate. The Plaintiff filed suit in Federal District Court, alleging our nursing client was deliberately indifferent to his medical needs. Lacey and Skyler obtained a summary judgment ruling in favor of their client from the District Court, which held the Plaintiff failed to exhaust his administrative remedies prior to filing suit. Plaintiff appealed to the Fourth Circuit Court of Appeals, which affirmed the District Court’s ruling and upheld summary judgment.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

The Charleston office of Copeland, Stair, Valz & Lovell participated once again in the area's Habitat for Humanity build on October 26, 2019 in James Island.  Led by partner Tyler Winton, CSKL has developed a long-standing relationship with the Charleston area Habitat for Humanity, giving back to the local community in area builds at least twice a year. For more information on Habitat for Humanity in your area, please click here.

The South Carolina Bar's Young Lawyer Division (YLD) held its first ever Legal Feeding Frenzy from May 6-10.  Noticing the trend that food donations drop significantly during the summer months, the YLD decided to implement the fundraiser to help the local food banks replenish their stock as well as monetary donations. Seeing the opportunity to give back to his community, Associate Skyler Wilson was the representative for the Charleston office of CSVL. Update- By the end of the drive, the Charleston office of CSVL won medium firm with 2,256 points.  As a whole the drive turned out to be a success, with enough donations from law firms to provide 40,000 meals across the state of South Carolina. For more information about the SC Bar YLD Feeding Frenzy, please click here.

Recent Insurance Coverage Corner Article by Skyler C. Wilson. Many of the South Carolina Bar have awaited how our supreme court would handle the Garrison v. Target Corporation case.  When the court of appeals ruled that the statutory cap on punitive damages was an affirmative defense, every circuit court and litigator in the state felt the impact of the decision that caused a flurry of filing amended pleadings asserting the defense.  Our supreme court reversed that ruling, but the opinion contains other important reminders, including the effect of spoliation of evidence and interest on punitive damages. As a reminder, the claims in Garrison arose after a mother unintentionally punctured herself when she swatted a syringe from her daughter’s hand that her daughter had picked up from a Target parking lot.  Target had possession of the syringe, but it could not be found at the time of trial.  The jury was shown pictures of the syringe and instructed on the spoliation of evidence.  Target was found negligent and the jury awarded the mother $100,000 in compensatory damages and $4.51 million in punitive damages.  Both parties appealed the ruling. Statutory Cap on Punitive Damages Disagreeing with the court of appeals, our supreme court held the statutory cap on punitive damages is not an avoidance or an affirmative defense.  The court reasoned the cap lacks a common characteristic of the affirmative defenses enumerated in Rule 8(c), SCRCP: barring liability for the cause of action.  The court also reasoned that, unlike the statutory cap, affirmative defenses shift the burden of proof to the defendant.  Because the statutory cap is not a bar to liability and does not shift the burden of proof, it is not an affirmative defense. The ruling is straight forward but contains important guidance for defense attorneys deciding what to assert in an answer. Although Rule 8(c), SCRCP, outlines specific defenses, it also indicates a party must assert “any other matter constituting an avoidance or affirmative defense.” Garrison provides assistance when deciding whether to assert a matter in a pleading as an affirmative defense when it is not enumerated in Rule 8(c):  If the matter would bar liability for a cause of action, or shift the burden of proof, it should probably be asserted in the answer. Spoliation Target moved for a JNOV on the ground that there was insufficient evidence it had constructive notice of the syringe—the dangerous condition on its premises.  The motion was denied, and our supreme court affirmed.  The supreme court reasoned there was sufficient evidence for many reasons, including photographs showing the weathered appearance of the syringe and evidence of Target’s lack of cleaning and inspection procedures. Importantly, however, the court also found Target’s spoliation of the syringe supported a finding of constructive notice.  The jury was charged on spoliation and how it can support an adverse inference.  Although it was not the sole reason for denying Target’s motion, the court’s reasoning remind us all to ensure our clients preserve evidence as early as possible. Interest on Punitive Damages The court found that Rule 68 and section 15-35-400(B) of the South Carolina Code, which govern offers of judgment, permit the recovery of interest on an award of punitive damages. This holding is not much of a surprise because the rule and statute on offers of judgment are unambiguous.  However, it serves as an example of how exposure can change. When an offer of judgment is rejected, interest can be recovered when the verdict is at least as favorable as the offer of judgment.  Punitive damages have two important considerations in the offer of judgment context.  First, assuming you have appropriately evaluated a plaintiff’s actual damages and your client receives an offer of judgment mirroring expected actual damages, an award of punitive damages could make the overall verdict “at least as favorable as the rejected offer,” making an award of interest appropriate.  Second, the interest is calculated on the full amount of the award, including punitive damages. Although the majority of cases will not include the possibility of a punitive damages award as significant as in Garrison, make sure to advise your clients on the possible ramifications of refusing an offer of judgment, especially if you believe there is any possibility a jury could award punitive damages.  

Health Law and Regulation Update Post by Skyler Wilson. The South Carolina Supreme Court interpreted South Carolina’s statute of repose applicable to medical malpractice actions, which requires an action to be commenced within “six years from [the] date of occurrence,” and, in a split decision, found the statute begins to run after each occurrence rather than the first occurrence. In Marshall v. Dodds, Marshall was treated multiple times by Dr. Dodds over the course of many years, beginning in July 1999 and ending in September 2005.  In July 1999 Marshall presented to Dr. Dodds and Dr. Dodds noted elevated protein levels in Marshall’s urine but failed to run a test that would have shown that the protein was cancerous.  Over the course of Dr. Dodds’ treatment of Marshall, he repeatedly noted the increased protein levels but never ran the test to determine if the protein was cancerous.  The last time Dr. Dodds treated Marshall was in September 2005. In February 2010, Marshall was diagnosed with a rare type of blood cancer.  In February 2011, Marshall sued Dr. Dodds and another doctor for a failure to diagnose. Defendants’ argued that the statute of repose began to run in July 1999 when Dr. Dodds first failed to diagnose Marshall with cancer, requiring Marshall to file suit by July 2005.  Because suit was not filed until February 2011, Marshall’s claims were time barred. The South Carolina Supreme Court disagreed.  The Court interpreted the statute, which it noted stated “occurrence” and not “first occurrence,” and determined that each time Dr. Dodds treated Marshall and failed to diagnose her, it was an “occurrence” under the statute.  Because suit was filed in February 2011, Marshall could maintain claims for any occurrences from up to six years prior, February 2005.  The last time Dr. Dodds treated Marshall and failed to diagnose her was in September 2005.  Accordingly, Marshall could maintain an action for those damages occurring within the statute of repose, but not for those occurring outside the statute of repose. Take-home:  If a practitioner fails to diagnose a patient on multiple occasions, both within and outside of the statute of repose, that patient is not time barred from bringing an action for damages.  The patient, however, can only recover for those damages occurring within the statute of repose. The case is Marshall v. Dodds, Case No. 27873 (S.C. Sup. Ct. filed March 27, 2019). https://www.sccourts.org/opinions/HTMLFiles/SC/27873.pdf For more information on or to subscribe to our Health Law and Regulation Update Blog, please click here.