Jean Hoefer Toal, retired chief justice of the Supreme Court of South Carolina. Courtesy photo

A South Carolina judge has postponed a set of asbestos trials this month due to the COVID-19 outbreak but refused to halt the litigation entirely, telling lawyers "the judicial system must adapt."

Last week's ruling, by retired South Carolina Supreme Court Chief Justice Jean Toal, is the second to postpone asbestos trials, typically scheduled every few months throughout the year. On May 5, Kanawha County Circuit Court Judge Ronald Wilson cited an order of the West Virginia Supreme Court of Appeals in halting about 40 trials that he had planned for June, with masks and gloves.

Toal, appointed by the South Carolina Supreme Court to oversee the state's asbestos litigation docket, granted the defendants' motion to continue the South Carolina trials, set to begin in a week, to Sept. 21. Also, despite stating last month that she intended to consolidate the cases for trial, the judge denied plaintiffs' request to do so "at this time."

"Once the facts of each case have been better developed, the court invites the plaintiffs to renew their motion to consolidate," Toal wrote. "As courts across the country are shut down to jury trials, the judicial system must adapt. Consolidation may be a method to adapt and be sure that litigants get their day in court."

Theile McVey, of Kassel McVey in Columbia, South Carolina, who represents the plaintiffs in many of the cases, said she was optimistic Toal could still order consolidation. She said there are now eight cases scheduled for trials, when combined with those already set for September. 

"She's saying we're all going to have to adapt to some of this, and we will have gone months without a jury trial," she said. "How are we going to handle that?"

The ruling comes as other courts have scrambled to hold trials during the COVID-19 outbreak. On Monday, Texas judges held jury selection via Zoom for alternative dispute resolution of an insurance dispute. Last month, an Ohio judge postponed a criminal trial after the defendant nearly collapsed.

Toal's order addressed five cases alleging wrongful death claims against numerous companies, including John Crane Inc. and Pfizer Inc. The cases claim exposure to the defendants' products, which contained asbestos, caused the plaintiffs to get mesothelioma or lung cancer.

Many of the defendants have accused Toal of favoring plaintiffs in her orders. Earlier this month, defendant Zurich American Insurance Co. petitioned the South Carolina Supreme Court to order Toal to recuse herself from the asbestos litigation, citing alleged impartiality in her rulings.

In the May 15 decision, Toal refused to grant a separate request from the defendants to halt discovery "until business returns to normal."

"The court knows the caliber of lawyers representing defendants in asbestos litigation and feels confident they will be able to prepare witnesses for testimony, respond to discovery and take and defend depositions," she wrote. "Discovery in these cases may be less convenient than the norm. Inconvenience, in comparison to delaying justice in not just these cases, but the ones that come after, is not a valid basis to stop discovery. Ceasing workup of these cases is not necessary to protect the health of witnesses or lawyers. Therefore, discovery shall continue as scheduled."

She cited an April 3 order by South Carolina Supreme Court Chief Justice Donald Beatty that postponed trials but provided guidance on using technology to hold depositions and hearings, and the "remote administration of oaths."

"By this order, the South Carolina Supreme Court certainly intended that discovery, including depositions and hearings, continue during this pandemic," Toal wrote. "Indeed, even the United States Supreme Court, for the first time in its long history, announced that it will hear oral arguments via teleconference."