Columbia Standard

In a recent episode of the American Legal Record podcast, veteran reporter for Legal Newsline Daniel Fisher told host Leyla Gulen about the gaming of South Carolina's legal system by Judge Jean Hoefer Toal, an eighty-one-year-old former justice of the state's Supreme Court who presides over the Palmetto state’s entire asbestos docket.

Critics are raising alarms about Toal squeezing millions from insurance carriers through lawsuits filed by plaintiffs' lawyers Toal appoints as receivers, or custodians, of asbestos companies despite some of the companies shuttering decades ago or never having done business in South Carolina. 

Toal's go-to plaintiffs' attorney is Peter Protopapas, one of the state’s most prominent personal injury lawyers.

“I've never encountered anything like it,” Fisher told Gulen. “And I've written about the law for a long time. Protopapas, the receiver, standing in the shoes of a company, which means he should be defending that company against people suing it.”

As receiver, Protopapas sues the carriers on behalf of asbestos manufacturers, distributors and installers, many of which are no longer in business.

“I’ve talked to legal experts in this field,” he added, “and they just kind of shake their head and say, Nah, what you're describing, I can't really comment because I've never seen anything like it.”

The payoff for the plaintiffs' lawyers are millions in settlement dollars deposited in limited liability companies in Delaware—accounts with no transparency.

Protopapas keeps a third of what he collects, and the rest is deposited in “qualified settlement funds,” or QSFs, in Delaware. It’s unclear if any individual plaintiffs ever see any of the money.

“…we see from the documents that the judge approved that Protopapas can spend it on pretty much anything he wants related to litigation,” Fisher said. “And we suspect a lot of it's just going to his lawyer friends. She has not answered, Protopapas has not answered any questions.”

In one recent instance, Protopapas pursued claims against Cape PLC, a former South African asbestos company, and has been given extensive powers to pursue documents and third-party claims, including against Anglo American, a global mining company.

Toal appointed Protopapas receiver after Cape failed to answer the underlying lawsuit brought by the national trial litigation firm out of Dallas, Texas, Dean Omar, Branham Shirley, LLP, a major player in the asbestos cases.

Defense attorneys have argued allegations are unfounded that Anglo American owes a share liability for asbestos cases. 

“Still, Toal has also consistently rejected arguments that she lacks jurisdiction over the foreign companies involved, accepting Protopapas's allegations as fact due to Cape's refusal to respond in court,” Fisher said.

Fisher said that at a recent hearing in Columbia, Toal said she wanted to "find a reasonable way to move this trial forward," and set a trial date for the Cape lawsuit on Feb. 3, 2025.

The legal climate has deteriorated for businesses and insurers in South Carolina since Toal took control of asbestos case in 2017, to the point that the American Tort Reform Foundation in 2023 placed the state number five on its annual list of America's “Judicial Hellholes.”

“South Carolina’s asbestos litigation has gained an infamous reputation as a 'Judicial Hellhole' because of unbalanced and clearly biased rulings by the trial court judge," Tiger Joyce, president of the American Tort Reform Association, told Legal Newsline.  "The judge has shown an extraordinary bias against insurers in particular."

“The judge has a highly unusual practice of appointing local plaintiffs’ lawyer Peter Protopapas," he continued, "as a receiver to take over defunct companies and sue their insurers to collect on remaining coverage for asbestos cases, apparently reaping enormous fees for himself. In some recent cases, the judge has even appointed Protopapas as a receiver to accept service on behalf of active companies that do not do business in the state and had fought the court’s lack of jurisdiction. ATRA is unaware of any situation where a receiver has been appointed to take a legal position that is diametrically opposed to the interests of the entity purportedly being represented.”

Toal, who has practiced law for 56 years, is a legend in South Carolina jurisprudence whose career was highlighted in Madam Chief Justice, a collection of essays released in 2015.

Toal was a Democratic member of the state legislature from 1975 until her nomination and election by that body in 1988 as an associate justice to the South Carolina Supreme Court, becoming the first woman to hold the role.

In 2000, she was elected by the legislature as the first female Chief Justice, a role she held until the end of 2015, when she reached South Carolina’s mandatory judicial retirement age of 72.

Such a retirement age falls squarely in the middle of a range of that statistic, when compared to the judiciaries of other countries. These include Ethiopia at age 60, Austria and Barbados at age 65, Lebanon and Singapore at age 68, Australia, Belgium, England, Ghana, Jamaica, Japan, Kenya and New Zealand at age 70 and Brazil, Canada and Chile at age 75.

Subsequent to her initial retirement at 72, Toal was chosen to serve as a special, part-time circuit court judge in the Richland County Judicial Center, earning a six-figure yearly state retirement wage and overseeing a regular asbestos docket which generates five trials each year.

Critics of her jurisprudence have alleged a ruling bias towards plaintiffs.

In late 2023, Toal was also appointed to decide whether infamous convicted murderer Alex Murdaugh, subject of Netflix documentary Murdaugh Murders: A Southern Scandal, was entitled to a new trial.

In a 2023 questionnaire for the South Carolina State Legislature’s Judicial Merit Selection Commission, an organization which screens judges, Toal wrote that she has remained a “Senior Active Retired Judge.”

“I have very much enjoyed serving as a Senior Active Judge. I have served as an Acting Circuit Court Judge for each year since I retired. At the appointment of Chief Justice [Donald W.] Beatty, I have managed the asbestos docket for many years. I have managed to trial or settlement at least 500 cases,” Toal wrote in the questionnaire.

Toal also noted she received appointments from U.S. District Judge Richard M. Gergel and U.S. District Judge Donald C. Coggins to serve as a mediator and arbitrator, for which she earned $52,800 from 2020-2022.

Known for imposing strict sanctions against defendants who challenge her, defense attorneys have sought Toal’s recusal, citing perceived bias in favor of plaintiffs, and have attempted to remove cases from Richland County to a South Carolina federal court. All such efforts have been unsuccessful.