In this asbestos/mesothelioma case, we granted a writ of certiorari to review the court of appeals’ decision (1) affirming the trial courts denial of Petitioner Scapa Waycross, Inc.’s (Scapa) motion for judgment notwithstanding the verdict, which was based on the ground Respondent failed to introduce legally sufficient evidence of causation; (2) affirming the trial courts order granting Respondents motion for a new trial nisi additur; and (3) affirming the trial courts denial of Scapas motion for reallocation of pretrial settlement proceeds. Edwards v. Scapa Waycross, Inc., 437 S.C. 396, 878 S.E.2d 696 (Ct. App. 2022).
We dismiss the writ of certiorari as improvidently granted with respect to the issues of additur and the reallocation of settlement proceeds.
1
We affirm the court of appeals’ reasoning on the causation issue, but we address the issue to reaffirm South Carolinas adherence to the substantial factor causation test we adopted in Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007).
In Henderson, we pronounced:
In determining whether exposure is actionable, we adopt the “frequency, regularity, and proximity test” set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162[-63] (4th Cir. 1986): “To support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.”
373 S.C. at 185, 644 S.E.2d at 727 (emphases added); see also Lohrmann, 782 F.2d at 1162 (applying Maryland law to a pipefitters products liability claims and restating the substantial factor test employed in Maryland products liability cases: “To establish proximate causation in Maryland, the plaintiff must introduce evidence [that] allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.” (emphasis added)). While the Lohrmann substantial factor test relaxes the “but-for” requirement that applies in traditional tort cases, the test still requires the plaintiff to show “more than a casual or minimum contact with the product.” Lohrmann, 782 F.2d at 1162.
In a products liability case, whether the plaintiffs theory is strict liability, negligence, or breach of warranty, the plaintiff must prove the defendants defective product was a proximate cause of the plaintiffs injury. See Bray v. Marathon Corp., 356 S.C. 111, 116, 588 S.E.2d 93, 95 (2003). To prove proximate cause, a plaintiff must establish both causation in fact and legal cause. Small v. Pioneer Mach., Inc., 329 S.C. 448, 463, 494 S.E.2d 835, 842 (Ct. App. 1997). To establish causation in fact, the plaintiff must show the injury complained of would not have occurred “but for” the defendants conduct, and to establish legal cause, the plaintiff must establish the plaintiffs injury was a foreseeable consequence of the defendants conduct. See id.
A defendant “cannot be charged with that which is unpredictable or could not be expected to happen. A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendants act.” Id. at 463, 494 S.E.2d at 843 (citation omitted) (first citing Bramlette v. Charter–Medical–Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990); and then citing Greenville Meml Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d 546 (1990)). The plaintiff may prove proximate cause by direct or circumstantial evidence, or some combination of the two. Small, 329 S.C. at 464, 494 S.E.2d at 843.
The Lohrmann causation test takes into the account the reality that “most plaintiffs sue every known manufacturer of asbestos products.” 782 F.2d at 1162. Some defendants are dismissed pretrial or at the directed verdict stage for lack of evidence, some defendants settle, and some defendants go to trial. Id. Applying the test to Scapas liability, it was incumbent upon Stewart to prove he was exposed to Scapa asbestos-containing dryer felts on a regular basis over an extended time in proximity to where he worked.
Scapa argues it was entitled to judgment notwithstanding the verdict because the evidence presented by Stewart fell short of the Lohrmann causation standard. Scapa points to the court of appeals’ citation of the Supreme Court of Pennsylvanias opinion in Rost v. Ford Motor Company
2
and claims the court of appeals improperly approved the use of the cumulative dose theory rejected in Henderson and Lohrmann. We disagree. The court of appeals did not adopt a new causation test. Moreover, the court correctly noted Dr. Frank did not rely on the cumulative dose theory as a basis for his opinion that Scapa asbestos-containing dryer felts was a substantial factor in causing Stewarts mesothelioma. The trial court properly allowed Dr. Frank to explain to the jury that as the amount of asbestos accumulates in the body, the likelihood of developing mesothelioma increases. Dr. Franks ultimate opinion was that Stewarts exposure to Scapa asbestos-containing dryer felts during his employment at Bowater was a substantial factor in causing his mesothelioma. Dr. Franks testimony satisfied the requirements of Henderson and Lohrmann, and, as a whole, the evidence in the record created a jury issue on the issue of Scapas liability.
For the foregoing reasons, we affirm the court of appeals.
AFFIRMED.
FOOTNOTES
1
. In its brief to this Court, Scapa argues for the first time that S.C. Code Ann. § 15-38-50 (2005) imposes a restriction on a plaintiffs ability to allocate settlement proceeds in a manner most advantageous to the plaintiff. The court of appeals mentioned section 15-38-50 in its opinion, but not in the context now argued by Scapa. 437 S.C. at 422-23, 422 n.3, 878 S.E.2d at 710 & n.3. Scapas argument is not preserved, so we do not address it. See IOn, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000), for “the long-established preservation requirement that the losing party generally must both present his issues and arguments to the lower court and obtain a ruling before an appellate court will review those issues and arguments.”
2
. 637 Pa. 625, 151 A.3d 1032 (2016). Because we hold the court of appeals did not deviate from the Lohrmann test in this case, we need not decide whether the Supreme Court of Pennsylvania did or did not base its decision in Rost on the substantial factor test.
JUSTICE JAMES:
BEATTY, C.J., KITTREDGE, FEW, and HILL, JJ., concur.