A polyester maker must pay the full $14 million awarded by a Spartanburg County jury in 2015 to the family of a man who died from mesothelioma that the family said was caused by his work as a contractor maintaining and repairing the company’s machinery, the South Carolina Court of Appeals has ruled.

From 1971 until 1980, Dennis Seay worked as a subcontractor at the Celanese polyester plant in Spartanburg, where he maintained equipment that regularly exposed him to asbestos. In 2013 he was diagnosed with mesothelioma, a deadly form of lung cancer linked to asbestos exposure. He and his wife sued the company, alleging negligence for failing to warn Seay of the dangers of asbestos, provide adequate safety measures against asbestos dust, and provide a safe environment. (Seay died in 2014.)

After the jury found that Celanese’s negligence caused Seay’s mesothelioma, CNA Holdings, Celanese’s successor company, asked then-Spartanburg County Circuit Court Judge D. Garrison Hill to grant either a judgment notwithstanding the verdict or a new trial. Hill declined, and CNA appealed.

CNA argued that it was entitled to a JNOV because Seay was what’s known as a statutory employee of Celanese, making his lawsuit a matter for the state’s Workers’ Compensation Commission rather than a jury.

But Judge John Geathers, writing for a unanimous panel, said that the purpose of the statutory employee doctrine is to prevent companies from subcontracting out work in order to avoid liabilities for injuries incurred in the course of employment, and it applies when a subcontractor is doing work that is an integral part of the company’s business and that the company’s own employees would normally do–something that wasn’t true of Seay’s very specialized work.

“The circuit court correctly determined that even though the maintenance work Seay performed was essential for Appellant’s conduct of manufacturing polyester fiber, it does not mean that equipment maintenance was a part or process of Appellant’s manufacturing business,” Geathers said.

CNA had also asked for a mistrial both on grounds of juror misconduct and because Hill had admitted into evidence a potentially prejudicial video of Seay crying out in pain, but the appeals court rejected these arguments as well.

Geathers wrote that while a juror admitted to having a conflict of interest, he did so early on in the trial process and was dismissed, and so the rest of the jury did not suffer any harm.

“There was no evidence of premature deliberations or of any outside influences affecting the jury’s verdict,” Geathers said. “Critically, it was incumbent on Appellant to ask the circuit court to voir dire the remaining jurors of their possible premature deliberations, but Appellant did not do so.”

The panel also found that because the record shows evidence that mesothelioma is a painful condition, the video was “necessary” to inform the jury of the extent of Seay’s pain and suffering. It also rejected arguments that the jury’s award was excessive, finding that the award was supported by the evidence.

Theile McVey and John Kassel of Kassel McVey in Columbia represented Seay’s estate along with Blake Hewitt of Bluestein Thompson Sullivan in Columbia and Chris Panatier and Kevin Paul of Simon Greenstone Panatier Bartlett in Dallas.

McVey said the opinion makes an important clarification about case law as it relates to statutory employees.

“The court found that just because the work of Seay was important for the operation of the plant, it was not a part or process of Celanese’s business,” McVey said. “I believe the decision clarifies the law and will make it easier to apply to the facts of each case.”

Mitchell Brown, Mattison Bogan and Blake Williams of Nelson Mullins Riley & Scarborough in Columbia represented CNA Holdings on appeal. They did not respond to requests for comment before press time.

The 23-page decision is Keene v. CNA Holdings LLC (Lawyers Weekly No. 011-020-19). The full text of the opinion is available online at sclawyersweekly.com.

Follow Matt Chaney on Twitter @SCLWChaney

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