                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-2008


LARRY SOUTHERN; ROY SOUTHERN; YVONNE HARRIS; BARBARA
PATTERSON, individually and on behalf of others similarly
situated in the State of South Carolina,

                Plaintiffs – Appellants,

          and

LUCILLE SOUTHERN; ODELL PARKER; RUTH PARKER,

                Plaintiffs,

          v.

RICHARD H. BISHOFF, PC; RICHARD H. BISHOFF; JOHN M. DEAKLE;
JOHN W. BARRETT; BARRETT LAW GROUP, PA; A. JOEL BENTLEY;
PAUL T. BENTON; WILLIAM R. COUCH; DAVID O. MCCORMICK;
CUMBEST CUMBEST HUNTER & MCCORMICK; CRYMES G. PITTMAN;
PITTMAN GERMANY ROBERTS & WELSH, LLP; JOHN MICHAEL SIMMS;
EUGENE C. TULLOS; TULLOS & TULLOS; RANCE N. ULMER,

                Defendants – Appellees,

          and

ASBESTOS PROCESSING LLC; A. JOEL BENTLEY LAW OFFICE;
CHARLES G. BLACKWELL, JR.; COUCH LAW FIRM; PATRICK C.
MALOUF; PORTER & MALOUF, PA; HAMMACK BARRY THAGGARD & MAY,
LLP; ANTHONY SAKALARIOS; MORRIS SAKALARIOS & BLACKWELL,
PLLC; LAWYER JOHN DOE; LAWYER JANE DOE,

                Defendants,

WILLIAM HOWELL MORRISON,

                Intervenor For Limited Purpose.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.   Joseph F. Anderson, Jr., Senior
District Judge. (0:11-cv-01800-JFA)


Argued:   October 25, 2016             Decided:     January 12, 2017


Before TRAXLER, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: James J. O’Keeffe, IV, JOHNSON, ROSEN & O’KEEFFE, LLC,
Roanoke, Virginia, for Appellants.       Kurt M. Rozelsky, SMITH
MOORE LEATHERWOOD LLP, Greenville, South Carolina; Morris Dawes
Cooke,   Jr.,   BARNWELL   WHALEY   PATTERSON   AND   HELMS,  LLC,
Charleston, South Carolina, for Appellees. ON BRIEF: Thomas A.
Pendarvis,   PENDARVIS   LAW   OFFICES,   P.C.,   Beaufort,  South
Carolina; Susan F. Campbell, Georgetown, South Carolina, Chad A.
McGowen, Randall S. Hood, MCGOWAN, HOOD & FELDER, LLC, Rock
Hill, South Carolina; Brent P. Stewart, STEWART LAW OFFICES,
Rock Hill, South Carolina, for Appellants.      Jason D. Maertens,
SMITH MOORE LEATHERWOOD LLP, Greenville, South Carolina, for
Appellees Richard H. Bishoff, PC, Richard H. Bishoff, and John
M. Deakle; Susan P. McWilliams, William C. Lewis, NEXSEN PRUET,
LLC, Columbia, South Carolina, for Appellee William R. Couch;
John William Fletcher, BARNWELL WHALEY PATTERSON AND HELMS, LLC,
Charleston, South Carolina, for Appellees Crymes G. Pittman,
Pittman Germany Roberts & Walsh, LLP, Eugene C. Tullos, Tullos &
Tullos, and Rance Ulmer; Elizabeth Van Doren Gray, J. Calhoun
Watson, Alexis Lindsay, SOWELL GRAY STEPP & LAFFITTE, L.L.C.,
Columbia, South Carolina, for Appellee John Michael Sims; Thomas
C. Salane, R. Hawthorne Barrett, TURNER PADGET GRAHAM & LANEY
P.A., Columbia, South Carolina, for Appellees David O. McCormick
and Cumbest Cumbest Hunter & McCormick; Leslie A. Cotter, Jr.,
RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina,
for Appellee A. Joel Bentley, Jr.; Larry D. Moffett, Shea S.
Scott, DANIEL COKER HORTON & BELL, P.A., Oxford, Mississippi,
John T. Lay, Jr., Lindsay A. Joyner, GALLIVAN, WHITE & BOYD,
P.A., Columbia, South Carolina, for Appellees Barrett Law Group,
PA and John W. Barrett; Frank R. Ellerbe, III, ROBINSON,
MCFADDEN & MOORE, P.C., Columbia, South Carolina, for Appellee
Paul T. Benton.



                                2
Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

      This    case         arises     out        of     several       attorneys’        legal

representation        of    several       South       Carolina     employees        regarding

their   personal-injury            claims       against      asbestos       manufacturers.

The employees’ lawsuit alleges that the attorneys breached a

duty to instruct them as to how to protect their rights to

receive workers’ compensation benefits, or at least to notify

them that they might need to seek further advice on the issue.

The   employees       appeal       district         court    orders       dismissing       some

defendants      for    lack     of    personal          jurisdiction         and     granting

summary judgment to others on the merits of the claims.                               Finding

no error, we affirm.

                                             I.

      Viewing    the       facts     in    the      light    most     favorable       to    the

employees, as we must in reviewing an order granting summary

judgment     against        them,     the       record      reveals        the     following.

Attorneys    Richard        Bishoff       and       John    Deakle    (“Bishoff/Deakle”

collectively)     represent          workers          throughout      the    Southeast       in

asbestos-related           claims.         However,         they     do     not     represent

employees who have filed workers’ compensation claims.                              In fact,

they terminate their representation of clients who file workers’

compensation      claims       because       the        presence      of     the     workers’

compensation      issues       make       the       cases    much     less        financially

attractive to them.

                                                4
        Larry Southern, Roy Southern, Yvonne Harris, and Barbara

Patterson (collectively, “Employees”) are South Carolinians who

worked for decades at Springs Mills, a textile manufacturing

plant located in Lancaster, South Carolina.                          They have all been

diagnosed       with   asbestosis,          the    result     of    their      exposure   to

asbestos in the course of their work at Springs Mills.

        Three    of    these       individuals       stopped        working     and    began

collecting       Social          Security     disability          benefits      for    other

disabling       conditions          years      before        being       diagnosed      with

asbestosis.        Patterson stopped working in 1996, when she was

diagnosed with, and began collecting Social Security disability

payments for, asthma or chronic obstructive pulmonary disease

(“COPD”).        She       was    diagnosed       with   asbestosis       in    late   2008.

Harris stopped working in 1997, when she was diagnosed with COPD

and     began    collecting         Social        Security        disability     for   that

condition.       She was first diagnosed with asbestosis in February

2001.     Roy Southern stopped working for Springs in 2003 because

of back problems, for which he began collecting Social Security

disability.       He was diagnosed with asbestosis in May 2009.

      Larry Southern was laid off from Springs Mills when the

plant    closed       in    September       2007,    and     he    was   diagnosed      with

asbestosis in May 2009.               He collected unemployment for a year-

and-a-half after being laid off, then went to work in August

2009 as a line mechanic/operator for another company at a wage

                                              5
lower than he had been earning in his job at Springs Mills.                                      He

works    forty      hours    per        week    and    some       overtime     and      has    never

missed a day of work for health reasons.

        Beginning        around            2009,         each         Employee              retained

Bishoff/Deakle         and    others        to    represent         them     regarding         their

personal injury claims against asbestos manufacturers concerning

their     asbestos          exposure.             Each        Employee’s          contract        of

representation provided that the client understood that their

attorneys       were   not     being        employed         to    advise     them      regarding

workers’ compensation matters.                    And indeed the attorneys did not

provide    any      advice     regarding         any     possible          effect      that    their

personal-injury        claims           might    have    on       their     rights      to    obtain

workers’ compensation benefits in South Carolina.

        Section     524(g)         of     the    Bankruptcy          Code     authorizes         the

creation       of   asbestos        personal-injury               trusts    for     claims      made

against asbestos manufacturers in bankruptcy.                                See 11 U.S.C. §

524(g); see generally Barraford v. T&N Ltd., 778 F.3d 258, 260-

61 (1st Cir. 2015).                 Utilizing Mississippi’s liberal joinder

rules,     Employees’         attorneys          filed       suit     in     that      state    and

obtained recoveries for each Employee from such trusts.

        This    action       was        commenced       in    July     2011       by    a     single

plaintiff,          based          on       diversity             jurisdiction,              against

Bishoff/Deakle         and     many        others,       alleging          claims      for     legal

malpractice, breach of contract, and breach of fiduciary duty.

                                                 6
Although the original plaintiff was not one of the Employees,

Employees       were    later   added     as    plaintiffs    and     the    original

plaintiff was dropped from the action. 1                  Employees allege that

their     defendant-attorneys          failed   to   advise    them    about    legal

alternatives available under South Carolina law:                    (1) to proceed

solely with asbestos tort claims, (2) to proceed solely with

workers’ compensation claims, or (3) to proceed with both claims

simultaneously.           Employees further allege that the defendants

failed to advise them that under South Carolina law, see S.C.

Code § 42-1-560, they would waive their workers’ compensation

claims     by    proceeding     with    asbestos     tort    claims    unless    they

provided the statutorily required notice to Springs Mills.                        The

remedies sought included compensatory and punitive damages and,

regarding       the    breach-of-fiduciary-duty          claim,   disgorgement     of

legal fees.

      Shortly after this case was filed, the parties agreed to

conduct limited discovery and present dispositive motions on the

issue     of    whether    Employees     had    viable    workers’     compensation

claims at the time they retained the defendant-attorneys.                        Once

the   parties     conducted     this     initial     discovery,     the     defendants

      1In their third amended complaint, the named plaintiffs
asserted claims for themselves and on behalf of a putative
class.     However, the district court subsequently denied
Employees’ motion for class certification. See Fed. R. Civ. P.
23(c)(4).



                                           7
moved for summary judgment in July 2012.                    In support of their

entitlement    to    summary    judgment,          they   argued    that       Employees

could not prove damages from any alleged breach because when the

defendants were retained, Employees did not have viable workers’

compensation claims.          The defendants advanced three reasons why

the   claims      were   not    viable        at    the    time     they       commenced

representing      Employees:         First,        Employees      did    not    meet   a

statutory requirement of having become disabled from asbestosis

within two years after their last exposure to asbestos; second,

they were not disabled as a result of asbestosis at the time

they retained the defendants or at any later time; and third,

they did not have lost wages due to asbestosis because Larry

Southern    continues     to    work      full-time       and     the    other    three

Employees stopped working due to other health conditions.                          Their

motion included the affidavit of an expert, Dr. John Allen Dicks

Cooper,    Jr.,    who   opined      to   a   reasonable        degree     of    medical

certainty that none of the Employees had suffered or did suffer

from any total or partial disability caused, or contributed to,

by asbestosis.

      Employees     opposed    the    motion.         Regarding     the    contention

that they were not disabled as a result of asbestosis, Employees




                                          8
submitted the affidavit of their expert, Dr. William Alleyne, 2

stating:

     I was retained to provide a diagnosis of the named
     Plaintiffs and opine, to a reasonable degree of
     medical certainty, as to whether any of the named
     Plaintiffs suffer from a current impairment; whether
     they need or will need medical treatment; whether they
     have any restrictions; and whether their diagnosis is
     causally related [to] the history of work related
     exposure to asbestos provided by the patient and
     through records submitted by certain out-of-state law
     firms in support of claims made against various
     bankrupt asbestos manufacturers.

Alleyne Aff. p.2 (ECF No. 70-3) (emphasis added).              The affidavit

stated that, as a result of workplace exposure to asbestos dust,

Roy Southern, Harris, and Patterson were each unable to work due

to asbestosis. 3      The affidavit also stated that Larry Southern

had asbestosis resulting from his workplace exposure and it “did

prevent [him] from frequently to continuously walking across a

large manufacturing plant, bending/stooping twisting/ kneeling/

crouching on a frequent to continuous basis, lifting up to 50

pounds   frequently    (required   in   his   previous   job    [at   Springs

Mills] as a plant mechanic/technician) such that he necessarily

must work at a job with lighter physical demands.”             Alleyne Aff.

pp.6-7 (ECF No. 70-3).      Dr. Alleyne did not offer any opinion as

     2 Employees had identified Dr. Alleyne as an expert on June
1, 2012. They later identified him again on August 8, 2014.
     3 Dr. Alleyne opined that Harris’s and Patterson’s oxygen-
dependent respiratory failure and Harris’s COPD were “aggravated
by [their] asbestosis.” Alleyne Aff. pp. 2-3 (ECF No. 70-3).



                                    9
to any Employee regarding when their asbestosis first impacted

their abilities to work.

       The   district     court     denied        summary     judgment      in    February

2013, stating that there was “too much of a possibility of a

genuine issue of material fact.”                 J.A. 832.

       Shortly    thereafter,       Employees         amended      their    complaint       to

add    additional        defendants,        and       many    of    the     newly      added

defendants       filed    motions      to       dismiss      for    lack    of    personal

jurisdiction.         (We    refer     to       all    defendants     collectively          as

“Attorneys.”)               Following           limited       discovery          on      this

jurisdictional issue, the court dismissed some of the Attorneys

without      prejudice,     while      ruling         that   it    possessed      personal

jurisdiction over the others.

       On January 8, 2015, the district court issued an amended

scheduling order imposing a discovery deadline of February 9,

2015, and a deadline for dispositive motions of February 24,

2015, with the trial to take place in April 2015.                           The district

court later established a trial date of July 7, 2015.

       Dr. Alleyne was deposed on February 6, 2015.                         He testified

that    while    he   believed       to     a    reasonable        degree    of       medical

certainty that all Employees were disabled by asbestosis on the

date   he    examined     them,   he      had     not    formed     any    opinion      –   or

attempted to form one – concerning when they first contracted



                                            10
asbestosis      or     became    disabled      from    the    disease. 4        Regarding

Patterson, Dr. Alleyne was specifically asked whether he even

could say whether she was disabled due to asbestosis the day

before he examined her, and he answered that he could not.

        When asked whether he was intending to offer any opinions

regarding when Larry Southern became disabled from asbestosis,

Dr.   Alleyne     explained       that    those       who    have   been     exposed     to

asbestos dust would be “disabled” in the sense that continued

exposure would place them at unreasonable risk of developing

different      diseases.         In   that    (non-legal)       sense,       Dr.    Alleyne

testified,      Larry     Southern       became   disabled      shortly        after    his

first       exposure    to    asbestos.        But    see    S.C.     Code     § 42-11-20

(providing       that        “‘partial    disability’         means     the        physical

inability to continue work in [the last occupation when exposure

occurred]       only    and     ‘total       disability’       means     the       physical

inability to perform work in any occupation”).




        4
       Dr. Alleyne also testified that Roy Southern was totally
and permanently disabled as a result of his back problems at the
time he examined him, and he offered no opinion concerning what
percentage of his inability to work was due to asbestosis as
opposed to the back problems.




                                             11
     Following completion of discovery, the remaining defendants

filed motions for summary judgment on all claims. 5                              The bases

Attorneys asserted for summary judgment included those they had

asserted     in     their     2012    summary          judgment      motions     regarding

Employees’        inability     to    demonstrate            that    they     had     viable

workers’     compensation        claims           at     the    time     they       retained

Attorneys.         Accordingly,       they    argued         that    Employees      did   not

become disabled from asbestosis within two years after they were

last exposed to asbestos; they were not disabled from asbestosis

at the time they retained Attorneys or at any later time; and

they did not lose wages due to asbestosis because Larry Southern

continues    to     work    full-time       and        the   other   Employees        stopped

working due to other health conditions.                          Regarding Employees’

failure to show that they were disabled by asbestosis when they

retained Attorneys, Attorneys pointed out that even Employees’

expert had offered no opinion on the subject.

     The district court allowed Employees until April 23, 2015,

to respond to Attorneys’ motions.                       In their response filed on

that date, Employees included “supplemental” affidavits of Dr.

Alleyne     (the     “Supplemental           Affidavits”).              The     affidavits

included     the    statement        that    “[d]uring         the     course    of    [his]



     5 In late January 2015, Employees had filed a motion for
partial summary judgment.



                                             12
deposition,         counsel      for    [Attorneys]         asked    certain       questions,

some   of     which      [Dr.    Alleyne]      had    not    been     asked       to    consider

previously.”            J.A.    3205,       3212,    3224,       3231.      The    affidavits

stated       that      “[s]ince      that    time,        [he]    ha[d]    been        asked    to

consider and provide more specific information related to some

of those questions.”                  J.A. 3205, 3212, 3224, 3231.                       In the

affidavits, Dr. Alleyne opined for the first time that Employees

actually were disabled from asbestosis when they stopped working

at Springs Mills.

       Attorneys moved to strike these affidavits, contending they

were improper under the Rules of Civil Procedure, the applicable

scheduling order, and case law.                       Employees responded that the

affidavits were proper supplemental expert-witness disclosures

under Rule 26(e)(2).              See Fed. R. Civ. P. 26(e)(2).                   They argued

that even assuming that the disclosures were late, they were

substantially          justified       because       they    were    responsive          to    the

deposition questions.                The district court took the motion under

advisement.

       The    court      never       explicitly      addressed       the    merits       of    the

motion      to    strike.         Ruling     on     the    parties’       summary       judgment

motions,         the    district       court      granted        Attorneys’       and     denied

Employees’.            The court reasoned that under any of Employees’

three causes of action, they would need to establish damages

proximately         caused      by   Attorneys’       actions,      and     thus       Employees

                                               13
would have to show that they had viable workers’ compensation

claims at the time they retained Attorneys.                              The court ruled

that     Employees        could     not      show     they       had     viable     workers’

compensation claims at that time because, for their asbestosis

to be compensable under the Act, they would need to have become

disabled    from      asbestosis          within      two        years    of   their      last

exposures    at    Springs        Mills. 6      Based       on    the    record    developed

during     discovery        (which        would          exclude        the    Supplemental

Affidavits), the court concluded that Employees had failed to

forecast    sufficient       evidence         to     create      a   genuine      dispute   of

material    fact     on    that     point.         The     court     further      ruled   that

testimony    they     submitted       from     a     former       workers’     compensation

commissioner that every case has some settlement value also was

not sufficient to create a genuine factual dispute regarding

damages.    And the court rejected an argument from Employees that

even if their other claims failed, their fiduciary-duty claim

could    survive     even    without         proof    of    damages       since    Employees

6   S.C. Code § 42-11-70 provides:

       Neither an employee nor his dependents shall be
       entitled to compensation for disability or death from
       an occupational disease, except that due to exposure
       to   ionizing  radiation,   unless   such disease  was
       contracted within one year after the last exposure to
       the hazard peculiar to his employment which caused the
       disease, save that in the case of a pulmonary disease
       arising out of the inhalation of organic or inorganic
       dusts the period shall be two years.



                                              14
sought disgorgement of attorneys’ fees as a remedy under that

claim.     The     district        court    concluded       that    Attorneys      were

entitled to summary judgment on that cause of action as well

because it arose out of the same operative facts as the legal

malpractice     claim. 7     Having        granted      summary    judgment   against

Employees, the district court denied as moot Attorneys’ motion

to strike the Supplemental Affidavits.

                                           II.

     Employees argue that the district court erred in granting

summary judgment against them.              We disagree.

     “We review a district court’s decision to grant summary

judgment   de    novo,     applying    the       same    legal    standards   as    the

district court, and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party.”

T–Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380,

384–85   (4th    Cir.      2012)    (internal        quotation     marks   omitted).

Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”                          Fed. R. Civ. P.

56(a).




     7 The court also concluded that several defendants were
entitled to summary judgment on additional grounds not relevant
to our decision.



                                           15
       “Because we are sitting in diversity, our role is to apply

[South Carolina] law, or, if necessary, predict how the state’s

highest court would rule on an unsettled issue.”                                  Horace Mann

Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th

Cir. 2008).

       “A plaintiff in a legal malpractice action must establish

four       elements:         (1)     the    existence        of    an       attorney-client

relationship, (2) a breach of duty by the attorney, (3) damage

to    the    client,     and      (4)   proximate       causation       of    the    client’s

damages      by   the breach.” 8           RFT    Mgmt.   Co.     v.    Tinsley      &   Adams

L.L.P., 732 S.E.2d 166, 170 (S.C. 2012).                          As to damages, “the

plaintiff must show he or she ‘most probably’ would have been

successful        in   the     underlying        suit   if   the       attorney      had     not

committed      the     alleged      malpractice.”         See     Hall       v.   Fedor,     561

S.E.2d 654, 657 (S.C. Ct. App. 2002) (emphasis omitted).                                     The

plaintiff can make that showing either by proving that, but for

the    malpractice,          he     most   probably       would        have       received    a

settlement        larger     than    the   one    he    received       or    most    probably

would have prevailed on the underlying claim at trial.                                See id.

Either way, “the client must show at least that he has lost a



       8
       “The elements for a breach of contract are the existence
of a contract, its breach, and damages caused by such breach.”
S. Glass & Plastics Co. v. Kemper, 732 S.E.2d 205, 209 (S.C. Ct.
App. 2012).



                                             16
probability      of     success          as     a    result       of     the     attorney’s

negligence.”      Doe v. Howe, 626 S.E.2d 25, 32 (S.C. Ct. App.

2005) (internal quotation marks omitted).

                                               A.

     Employees        first    argue      that      the    district      court    erred    in

concluding      that      they          did    not        possess       viable    workers’

compensation claims at the time Attorneys agreed to represent

them.    We disagree.           Like the district court, we conclude that

Employees failed to create a genuine factual dispute regarding

the viability of their workers’ compensation claims, although

our reasoning differs from the district court’s.                          See MM ex rel.

DM v. School Dist. of Greenville Cty., 303 F.3d 523, 536 (4th

Cir. 2002) (“[W]e are entitled to affirm the court’s judgment on

alternate      grounds,       if    such       grounds      are     apparent     from     the

record.”).       We conclude that Employees’ workers’ compensation

claims were not viable because they failed to create a genuine

factual dispute concerning whether they incurred any lost wages

as a result of asbestosis.

     A   worker       covered      by    the    Workers’      Compensation        Act   (the

“Act”)   who    has    been     accidentally         injured      can    be    entitled    to

receive benefits under the “general disability” statutes, §§ 42-




                                               17
9-10 and 42-9-20, or the “scheduled loss” statute, § 42–9–30. 9

See Hutson v. South Carolina State Ports Auth., 732 S.E.2d 500,

502    (S.C.    2012);       see    also     S.C.      Code    § 42-11-10(D)       (“No

compensation         shall   be    payable      for    any    occupational    disease

unless the employee suffers a disability as described in Section

42-9-10, 42-9-20, or 42-9-30.”).                And, “the disablement or death

of an employee resulting from an occupational disease shall be

treated as an injury by accident.”                     S.C. Code § 42-11-40; see

also S.C. Code § 42-1-160 (“‘Injury’ . . . mean[s] only injury

by accident arising out of and in the course of employment and

shall not include a disease in any form, except when it results

naturally      and    unavoidably     from      the    accident   and     except   such

diseases as are compensable under the provisions of Chapter 11

of    this   Title.”).        Disability        due    to    asbestosis    caused    by

asbestos-dust         inhalation    constitutes         an    occupational    disease

within the meaning of this section.                   See Skinner v. Westinghouse

Elec. Corp., 716 S.E.2d 443, 445 (S.C. 2011); see also S.C. Code

§ 42-11-10(B)(5).




       9
       “The general disability statutes offer compensation for
total and partial disability, including a provision for wage
loss benefits.” Hutson v. South Carolina State Ports Auth., 732
S.E.2d 500, 502 (S.C. 2012).




                                           18
       Nevertheless,         the        Act     limited         Employees’          options      for

proving       a    compensable      injury.              The    Act     states       that      “[n]o

compensation shall be payable for any pulmonary disease arising

out of the inhalation of organic or inorganic dust or fumes

unless the claimant suffers disability as described in Section

42–9–10 or Section 42–9–20 and shall not be compensable under

Section     42–9–30.”          S.C.      Code       § 42–11–60.             Since       § 42–11–60

specifically addresses the compensability for pulmonary disease,

and    it     is     undisputed         asbestosis         is     a   pulmonary              disease,

Employees could only be entitled to compensation under §§ 42–9–

10 or 42–9–20.             Unless Employees were entitled to compensation

under § 42-11-60, their pulmonary disease is not even deemed to

be an “accident” within the meaning of the Act.                                    See Drake v.

Raybestos-Manhattan,            Inc.,         127    S.E.2d      288,       291     (S.C.      1962)

(involving statute that was predecessor to § 42-11-60 providing

that   “[n]o       compensation         shall       be    payable       for       any    pulmonary

disease arising out of the inhalation of organic or inorganic

dusts unless the claimant shall have been exposed thereto by his

employment for a period of at least one year and unless he

suffers       a    total    disability          therefrom”),          overruled          on     other

grounds, Hunt v. Whitt, 306 S.E.2d 621 (S.C. 1983).

       This       distinction      is    important         in    this       case    because       “an

award under the general disability statutes [§§ 42-9-10 or 42-9-

20] must      be    predicated      upon       a    showing      of     a    loss       of    earning

                                                19
capacity,    whereas    an    award     under      the    scheduled        loss    statute

[§ 42-9-30]    does    not    require      such    a     showing.”         Skinner,     716

S.E.2d at 446 (internal quotation marks omitted).                          Thus, in the

case   of   partial    disability,      a    claimant         would   be     entitled   to

“weekly compensation equal to sixty-six and two-thirds percent

of the difference between his average weekly wages before the

injury and the average weekly wages which he is able to earn

thereafter.”       S.C. Code § 42-9-20; see also Skinner, 716 S.E.2d

at 445 (“Under section 42-9-20, lost wages must be shown in

order to receive compensation.”).                The claimant bears the burden

of proving the lost wages.                 See Coleman v. Quality Concrete

Prods., Inc., 142 S.E.2d 43, 45 (S.C. 1965).

       Attorneys    argue,    for    several       reasons,      that      the    district

court correctly concluded that Employees did not have viable

workers’      compensation          claims        when        Attorneys          commenced

representation.         The    one    we        focus    on    here     is    Attorneys’

contention that Employees have not forecast evidence that they

suffered lost wages as the result of asbestosis, as §§ 42-9-10

and 42-9-20 require they must in order to have a compensable

injury.     Employees offer two responses.                    First, they cite the

principle that “[t]he law in effect at the time of the injury

governs the rights of the parties and not the law effective at

the time the award is made.”            Sellers v. Daniel Constr. Co., 330

S.E.2d 305, 306 (S.C. 1985) (internal quotation marks omitted).

                                           20
Employees contend that prior to issuing Skinner in 2011, the

South Carolina Supreme Court had not yet explicitly held that

claims      based   on    asbestosis    from     asbestos    inhalation        must   be

pursued under the general-disability statutes rather than the

scheduled-loss          statute.     They    argue    that   had    they    proceeded

under      the   scheduled-loss      statute,     § 42-9-30,       they    could    have

obtained compensation without proving lost wages.

      However, whether the Supreme Court had explicitly resolved

the issue prior to issuing Skinner is beside the point.                        Even on

the   dates      each    of   the   Employees    stopped     working      at   Springs

Mills, § 42-11-60          plainly    precluded      Employees     from    proceeding

under      the   scheduled-loss       statute,     and   Employees        suggest     no

reason why § 42-11-60 could have been read otherwise.                              Thus,

even prior to Skinner, the Act required them to prove they lost

wages due to their asbestosis in order to establish a right to

compensation. 10




      10Employees argue that, prior to the issuance of Skinner,
the South Carolina Workers’ Compensation Commission had allowed
claimants under facts analogous to the facts of this case to
proceed under § 42-11-30.      However, regardless of whether
Employees could have prevailed at the Commission level prior to
the issuance of Skinner, it would be mere speculation to
conclude that such an award would not have been reversed on
appeal.




                                            21
       Employees      also    assert      that       they    did    forecast         admissible

evidence that they lost wages due to asbestosis.                                We disagree

with this proposition.               On this point we note initially that

Employees      were     not     entitled            to    rely   on     the     Supplemental

Affidavits, which they submitted nearly two months after the

deadline      for     completion         of     discovery.             These    Supplemental

Affidavits were, and are, properly ignored.                            A scheduling order

“may   be    modified       only    for       good       cause   and    with    the    judge’s

consent.”      Fed. R. Civ. P. 16(b)(4).                    But “the party seeking an

extension must show that, despite due diligence, it could not

have reasonably met the scheduled deadlines.”                           3 James Wm. Moore

et al., Moore’s Federal Practice § 16.14[1][a], p. 16-75 (3d ed.

2016).      Employees certainly could not meet that standard here.

       Employees      offered       no        justification         whatsoever        for     not

producing      evidence       on    that        point       prior      to   the      discovery

deadline.       Attorneys had made the timing of the onset of any

asbestos-caused disability a critical issue for several years,

from the start of this case.                    The timing was central to their

claims   that       Employees      were       not    disabled      within      two    years   of

their last exposure to asbestos at Spring Mills, that Employees

did    not    yet    have     viable      workers’          compensation        claims      when

Attorneys commenced to represent them, and that no Employees

suffered lost wages due to disability from asbestosis.                                      Thus,

Employees certainly failed to demonstrate the “good cause” they

                                                22
would      have   needed    to    show   in    order    to     have    the    deadline

extended.

      In    the    district      court   Employees      argued    that       they   were

entitled to submit these affidavits after the discovery deadline

because they were entitled to supplement their Rule 26(a)(2)

disclosures under Rule 26(e) regarding the opinions of their

expert witness.          See Fed. R. Civ. P. 26(a)(2).                But Rule 26(e)

merely places the duty on an expert witness to supplement his

report “in a timely manner if the party learns that in some

material respect the disclosure or response is incomplete or

incorrect, and if the additional or corrective information has

not otherwise been made known to the other parties during the

discovery process or in writing.”               Fed. R. Civ. P. 26(e)(1)(A).

In contrast, Employees’ presentation of these new opinions were

not   proper      Rule   26(e)    supplements,     but       rather    were    “poorly

disguised attempts to counter [Attorneys’] arguments with new

expert analyses.”          EEOC v. Freeman, 778 F.3d 463, 467 n.7 (4th

Cir. 2015) (internal quotation marks omitted).                         There was no

basis for the district court to consider the tardy opinions.

See Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624,

631 (E.D.N.C. 2008) (“Courts distinguish ‘true supplementation’

(e.g.,      correcting      inadvertent        errors     or     omissions)         from

gamesmanship, and have therefore repeatedly rejected attempts to

avert summary judgment by ‘supplementing’ an expert report with

                                          23
a    ‘new   and    improved’    expert    report.”). 11      Accordingly,      in

determining       Attorneys’    entitlement       to   summary   judgment,    we

consider the summary judgment record as it existed on the date

of   the    deadline   for   completing       discovery.    We   conclude    that

Employees failed to forecast sufficient evidence of lost wages

due to asbestosis.

      As we have stated, Patterson, Harris, and Roy Southern had

stopped     working    and   were   collecting     Social   Security   payments

based on disability from other conditions years before they were

diagnosed with asbestosis.           After the close of discovery, when

Attorneys moved for summary judgment, Employees had forecast no

evidence that they were disabled due to asbestosis at the time



      11Employees argue that even if their claims for disability
benefits were not viable because their asbestosis did not cause
them to lose wages, they still could have claims for medical
treatment under the Act.    See S.C. Code § 42-15-60 (entitling
employees who have suffered an “injury” within the meaning of
the Act to medical benefits).    We disagree.   Under § 42-11-60,
Employees must suffer a disability within the meaning of §§ 42-
9-10 and -20 for their asbestosis even to be treated as an
“injury” within the meaning of the Act. See Drake v. Raybestos-
Manhattan, Inc., 127 S.E.2d 288, 291 (S.C. 1962) (involving
predecessor statute to § 42-11-60), overruled on other grounds,
Hunt v. Whitt, 306 S.E.2d 621, 622 (S.C. 1983).      Without lost
wages resulting from asbestosis, Employees had no compensable
injury.    Cf. Skinner v. Westinghouse Elec. Corp., 716 S.E.2d
443, 445-46 (S.C. 2011) (holding that when the claimant could
not establish lost wages caused by his asbestosis, his
asbestosis was not compensable and there was no need to address
whether his workers’ compensation claim was time barred).




                                         24
they stopped working at Springs Mills.                   And their expert, Dr.

Alleyne, had specifically testified in his deposition that he

had not even tried to determine whether they were disabled due

to asbestosis prior to the time he examined them.                       Accordingly,

at the time Attorneys moved for summary judgment, Employees had

failed       to   forecast   evidence     that   their      inability    to   perform

their jobs was due to asbestosis.

       Like the other three Employees, Larry Southern was also

unable to show that asbestosis caused him to lose wages.                           He

stopped working at Springs Mills only because he was laid off

when    the       plant   closed   in   September     2007.      After   collecting

unemployment benefits for a year-and-a-half, he went to work for

another company in August 2009. 12                  And he has not shown any

reduction in his wages due to asbestosis since he started with

the    new    company.       Accordingly,      like   the     other   Employees,   he




       12
        Larry Southern states that he originally considered
taking a different position with the new company and that the
position was too physically taxing for him.          However, an
affidavit from the human resources manager of Southern’s new
employer stated that the position he took was the highest paying
one he was qualified for in light of his education and
experience,   and  nothing  in   the  summary   judgment   record
contradicts that.




                                          25
failed to create a genuine factual dispute concerning whether he

possessed a viable workers’ compensation claim. 13

                                           B.

        Employees contend that regardless of the legal viability of

their        workers’   compensation      claims,    they    could    prove     damages

from Attorneys’ failure to protect their workers’ compensation

rights because they at least forecasted evidence they would have

recovered       some    amount    in    settlement   of     their    claims    had    the

Attorneys        adequately      protected       them.       Employees        point   to

deposition        testimony      from   Robert    Hundley,     a    former     Workers’


        13
        Employees point to Dr. Alleyne’s deposition testimony
that Larry Southern became “disabled” shortly after his first
exposure to asbestos. J.A. 3859. However, the context of that
testimony makes clear that he was not using the word “disabled”
to have the meaning it has in the context of the Act, which
refers to the physical inability of a claimant to work.      See
S.C. Code § 42-11-20 (“‘[P]artial disability means the physical
inability to continue work [in the job in which the exposure
occurred] and ‘total disability’ means the physical inability to
perform work in any occupation.”); see J.A. 2301 (Dr. Alleyne’s
testimony that “[w]hen you say disabled . . . we’re talking
about the difference between attorneys and physicians.”).    Dr.
Alleyne was opining that it would be medically dangerous for
someone who has been exposed to asbestos to continue to be
exposed.   See J.A. 3859 (stating that a person who has been
exposed to asbestos dust “would be considered disabled from the
viewpoint that he or she could not work in their usual
occupation or would be limited in the types of jobs they could
do, because once you’re exposed to asbestos, you then run the
risk of not only developing asbestosis but also the various
malignancies   associated  with   asbestos  dust   exposure  and
inhalation thereof and so therefore you should not be working in
those capacities”).




                                           26
Compensation           Commissioner         and       practicing         lawyer     who      testified

that      he     has     represented             hundreds         of     parties        in   workers’

compensation matters and, in his experience, almost all workers’

compensation           cases     settle.          He       indicated      that     he     would   have

obtained a settlement had he represented these Employees, and

the only question would have been the amount of the settlement.

       Even       assuming       that      Employees’            legal    theory     is      otherwise

sound, we conclude that Employees have not forecasted admissible

evidence         sufficient           to    create          a     genuine       factual       dispute

concerning whether they would have settled their claims had they

preserved their rights to bring them. 14                                 Employees forecast no

evidence         that     Hundley          was    able       to     obtain      settlements        for

claimants         who    had     no     lost     wages,         which     calls     into     question

whether        he       could     intelligently                 testify     about       whether     an

insurance carrier would even be willing to settle such a case.

And even assuming that frivolous claims have some settlement

value, there would be no nonspeculative basis for a factfinder

to conclude that these particular parties would have been able

to agree regarding the value of their claims, as they would need

to   do     in    order     to    achieve         a    settlement.           Cf.     Fuschetti       v.

Bierman,         319    A.2d     781,      784    (N.J.         Super.    Ct.     Law     Div.    1974)

       14
       Attorneys argue that making claims on the personal injury
trusts did not waive Appellants’ right to file workers’
compensation claims in any event. We do not address this issue.



                                                      27
(“Because no expert can suppose with any degree of reasonable

certainty the private blends of hopes and fears that might have

come together to produce a settlement before or during trial,

expert    testimony      as     to       reasonable         settlement       value      will   be

excluded as irrelevant.”); Campbell v. Magana, 184 Cal. App. 2d

751,     758   (Cal.    Dist.        Ct.       App.     1960)       (plaintiff         in    legal

malpractice      action       could      not     show       damages      based    on    nuisance

value of case where evidence shows that best settlement offer

was $350 and plaintiff had said she would not settle for less

than   $100,000;       thus    prospect         of    settlement          was    speculative).

For all of these reasons, we conclude that the district court

properly determined that Employees failed to forecast sufficient

evidence of damages from any failure on the part of Attorneys to

protect their right to workers’ compensation.

                                                C.

       Employees   also       argue       that       even    if    they    could       not   prove

damages from Attorneys’ alleged breach of duty, the district

court erred in granting summary judgment against them on their

fiduciary-duty claim.           Employees argue that their claim remained

viable because Employees sought forfeiture of attorneys’ fees.

See Hendry v. Pelland, 73 F.3d 397, 401-02 (D.C. Cir. 1996)

(collecting cases supporting proposition that “courts in other

jurisdictions      have       held       that    clients          must    prove    injury      and

proximate      causation      in     a    fiduciary         duty     claim      against      their

                                                28
lawyer if they seek compensatory damages, not if . . . they seek

only forfeiture of legal fees”).                          We disagree.          Even assuming

that Employees’ fiduciary-duty claims were viable to the extent

that    the       summary      judgment      record       supported       fee   disgorgement,

Employees failed to forecast evidence that could warrant such

relief. 15

       Employees          do   not    dispute       that    for    a   plaintiff     to     show

entitlement          to     disgorgement           of     legal    fees     for    breach     of

fiduciary duty, the South Carolina Supreme Court would, at a

minimum,          require      that    the    plaintiff       satisfy      the    Restatement

(Third) standard of proving a “clear and serious violation” by

the defendant lawyer.                 See Corrected Reply Brief of Employees at

19 (citing Restatement (Third) of the Law Governing Lawyers § 37

(2000), for the proposition that “[a] lawyer engaging in a clear

and serious violation of a duty to a client may be required to

forfeit       some     or      all    of     the    lawyer’s       compensation      for     the

matter”).           But     nothing     in    the       summary    judgment      record    could

justify a conclusion that Attorneys’ conduct rose to that level.

As we have explained, Employees cannot even demonstrate that

they        had    viable       claims       at     the     time    Attorneys       commenced

       15
        Because we affirm on this basis, we do not address the
correctness of the district court’s conclusion that Attorneys
were entitled to summary judgment on the fiduciary-duty claim
because it arose out of the same operative facts as the legal
malpractice cause of action.



                                                   29
representing      them.      And     Employees’          representation    contracts

plainly stated that their attorneys would not be advising them

regarding any workers’ compensation claims.                   It is possible that

an   applicable     duty     of     care     may    nonetheless     have   required

Attorneys to protect Employees’ rights.                     But there would be no

basis for a reasonable factfinder to conclude that any failure

to   advise   Employees    concerning            their   (non-existent)    right   to

workers’ compensation claims amounted to “a clear and serious

violation” of their duty to their clients.                     Thus, the district

court properly granted summary judgment against Employees on the

fiduciary-duty claims as well. 16

                                           III.

      In   sum,    because     we     conclude       that    the   district    court

properly granted summary judgment against Employees, we affirm.



                                                                            AFFIRMED




      16Employees also maintain that the district court erred in
dismissing claims against several Attorneys for lack of
jurisdiction.    We conclude, however, that the district court
properly dismissed these parties on that basis.



                                            30
