374 Ga. App. 681
Ga. Ct. App.2025Background
- Plaintiff Cox alleged that diesel exhaust from a backup generator in her condominium building infiltrated her unit, causing personal injury and property damage.
- Cox supported her claims with expert testimony from a treating physician (Dr. Springer) and an environmental/industrial hygiene consultant (Marks).
- Defendant Ovation Condominium Association maintained the generator and, after being presented with complaints and environmental reports, took no further action, believing their maintenance practices were adequate.
- The trial court originally denied Ovation’s motion to strike the experts and denied summary judgment; on initial appeal, the Court of Appeals remanded for proper Daubert review of the expert affidavits.
- On remand, the trial court again denied the motions to strike and summary judgment. Ovation appealed the rulings, focusing on expert admissibility and failure of proof on causation.
- The Court of Appeals affirmed in part (as to property damage), but reversed in part (excluding Springer's causation testimony and entering summary judgment for Ovation on the personal injury claim).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Springer's Expert | Springer qualified to link diesel to Cox's symptoms | Springer unqualified (lacks toxicology expertise) | Springer is not qualified to opine on toxic causation; exclude testimony |
| Admissibility of Marks' Expert | Marks used appropriate methodology to ID generator as the source | Marks relied on unsworn reports, didn't rule out other sources | Marks' testimony admissible as to property damage/soot source, except for carpet analysis relying on uncertified reports |
| Summary Judgment: Personal Injury Claim | Evidence sufficient for causation (medical and environmental) | No expert proof of specific causation; must show both | Summary judgment for Ovation: no admissible expert on specific causation |
| Summary Judgment: Property & Nuisance | Sufficient evidence generator caused property harm, ongoing nuisance | Lawful operation can't be nuisance, proof of maintenance bars contract claim | Fact issues remain on property damage and nuisance; breach of contract claim proceeds; nuisance is abatable and ongoing |
Key Cases Cited
- Ovation Condo. Ass'n v. Cox, 369 Ga. App. 481 (2023) (prior appeal requiring trial court Daubert review of expert evidence)
- Scapa Dryer Fabrics v. Knight, 299 Ga. 286 (2016) (explaining expert admissibility under Rule 702 and Daubert)
- Kershaw v. Princeton Properties Mgmt., 348 Ga. App. 779 (2019) (expert testimony required to establish causation in specialized medical questions)
- Wadley v. Mother Murphy’s Laboratories, 357 Ga. App. 259 (2020) (toxic tort plaintiffs must prove both general and specific causation)
- Butler v. Union Carbide Corp., 310 Ga. App. 21 (2011) (reliable expert testimony required for causation in toxic tort cases)
- Dept. of Transp. v. Mixon, 355 Ga. App. 463 (2020) (continuing versus permanent nuisance for statute of limitations)
- Kempton v. Southern Flavor Real Estate, L.P., 362 Ga. App. 137 (2021) (statutory definition and limits on nuisance claims)