In this tоxic tort action, plaintiff Ronnie Rodrigues appeals the grant of summary judgment to defendant Georgia-Pacific Corporation, arguing that competent evidence showed that Rodrigues’s exposure to chlorine chemicals at a Georgia-Pacific plant proximately caused Rodrigues’s pneumonia. We hold that the еxpert affidavit submitted by Rodrigues, in which a physician testified to a
Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp. 1
So viewed, the evidence shows that while working for a contractor at a Georgiа-Pacific plant in March 1998, Rodrigues was dismantling old machinery when he was suddenly exposed to a significant amount of chlorine or chlorine dioxide as he was unscrewing a valve, even though Georgia-Pacific was to have disabled the chlorine pipes leading to the machinery. Rodrigues immediately became ill, experiencing resрiratory difficulties and nausea. His health worsened to pneumonia over the next few days, causing him to seek medical treatment at a hospital emergency room, where he reeked of chlorine. The emergency room physician diagnosed Rodrigues with pneumonia due to chlorine inhalation before she referred him to a treating physician.
Rodrigues filed an action against Georgia-Pacific to recover for his injuries, asserting that Georgia-Pacific had negligently exposed him to the chlorine chemicals. Georgia-Pacific moved for summary judgment, submitting a scientific expert’s affidavit that chlorine chemicals do not cause the bacterial pneumonia as suffered by Rodrigues, and that such a disease is commonly caused by smoking cigarettes. The expert noted that for years leading up to the incident at issue, Rodrigues had smoked heavily, and that the treating physician who cared for Rodrigues (after the emergency room physician) had diagnosed him with “tobacco pneumonia.”
In rеsponse, Rodrigues submitted the affidavit of the emergency room physician, who noted that earlier in the same month that Rodrigues came to the hospital, 13 other workers from the Georgia-Pacific plant had presented to the hospital with respiratory problems caused by exposure to chlorine at the plant. Based on hеr examination of Rodrigues, she testified, “to a reasonable degree of medical certainty,” that Rodrigues’s bacterial pneumonia was “substantially contributed to by his exposure to chlorine or chlorine dioxide.” She explained that chlorine’s extremely irritating effect on respiratory membranes could result in pulmonary edemа (such as was experienced by Rodrigues) and could substantially contribute to the development of pneumonia, particularly if the patient was a smoker.
Georgia-Pacific then took the deposition of the emergency room physician, in which the physician repeatedly characterized the causal link between thе chlorine and Rodrigues’s pneumonia as a possibility rather than a probability. Nevertheless, the physician did testify, to a reasonable degree of medical certainty, that Rodrigues’s pulmonary edema as presented in the emergency room was most likely caused by chlorine gas inhalation. She further testified, based on her “sense оf things,” that the symptoms Rodrigues exhibited in the emergency room were consistent with exposure to chlorine chemicals.
Citing
Maurer v.
Chyatte
2
and other cases, Georgia-Pacific argued to the trial court that the physician’s deposition showed she could only testify that the causal link between the pneumonia and the chlorine was a mere possibility аs opposed to a probability, which could not withstand a motion for summary judgment. The trial court agreed, finding that despite the physician’s affidavit establishing
In toxic tort cases, proof of causation generally requires reliable expert testimony.
Fulmore v. CSX
Transp.
4
Such proximate cause testimony should generally not speak in terms of possibilities, but should be “based, at the least, on the determination that there was a reasonable probability that the negligence caused the injury.” (Punctuation omitted.)
Zwiren v. Thompson.
5
See
Maczko,
supra,
Nevertheless, medical testimony stated only in terms of a “possible” cause may be sufficient when supplemented by probative nonexpert testimony on causation. As reiterated in Estate of Patterson v. Fulton-DeKalb Hosp. Auth.: 6
There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold thе view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.
(Punctuation omitted; emphasis supplied.) See
Ga. Cas. & Surety Co. v.
Jernigan;
7
Nat. Dairy Products Corp. v.
Durham.
8
Based on this reasoning,
Estate of Patterson
concluded: “Thus, the plaintiff must present medical expert opinion as to causation which may be aided by other medical or non-medical evidence that, in totality, shows causation, even though the medical opinion is weak, i.e., showing a reasonable possibility rather than a probability.” Supra,
Based on these principles, the evidence here requires that we reverse the summary judgment granted to Georgia-Pacific for at least two reasons. First, the emergency room physician’s affidavit unequivocally stated, to a reasonable degree of medical certainty, that Rodrigues’s bacterial pneumonia was “substantially contributed to by his exposure to chlorine or chlorine dioxide.” This is not stated in terms of possibilities; this is stated in terms of a reasonable degree of medical certainty, which raises the matter to at least a probability. Moreover, in her deposition, the physician reiterated, to a reasonable degree of medical certainty, that Rodrigues’s pulmonary edema as presented in the emergency room was most likely caused by chlorine gas inhalation. These two statements alone provide the necessary “probability” testimony regarding causation
Nevertheless, the trial court discounted these statements by making several references to other testimony in the physician’s deposition, in which the physician refused to express her opinion in anything more definitive than possibilities. “In effect, the trial court applied our state’s contradictory testimony rule when it rejected [the physician’s] affidavit[ ] and testimony. This is not permitted when the contradictory testimony is of a nonparty witness, even an expert witness.”
Whitley v. Piedmont Hosp.
9
As
explained in
Whitley,
id., the whole court decision of this Court in
Ezor v. Thompson,
10
subsequently affirmed by the Supreme Court of Georgia on this very issue (see
Thompson v. Ezor
11
),
had expressly rejected, in the context of a summary judgment motion, the notion of discounting an expert’s affidavit in light of that expert’s contradictory deposition testimony. Thus, an affidavit of a physician that establishes the necessary causal link in terms of probability or reasonable medical certainty, even though later contradicted by that physician in deposition testimony, is sufficient to withstand a summary judgment motion on the issue of
causation.
Whitley,
supra,
Second, even if the physician’s testimony here were expressed only in terms of the chlorine being a “possible” cause of Rodrigues’s injuries, other nonexpert evidence was presented that supplemented that testimony, which precluded summary judgment. Rodrigues testified that although he was in apparent good health, he immediately became ill upon his exposure to the chlorine, which continuously worsened into the pneumonia he suffered when he presented at the emergency room. As stated by Georgia-Pacific’s own expert, Rod-rigues as a smoker was more susceptible to bacterial pneumoniа. We held in
Durham,
supra,
Granting Georgia-Pacific summary judgment on the ground that the emergency room physician’s testimony established causation only in terms of possibilities was error. We do not address the other grounds raised in the motion for summary judgment below, as such were not argued on appeal nor ruled upon by the trial court below.
Judgment reversed.
On Motion For Reconsideration.
In its motion for reconsiderаtion, Georgia-Pacific makes three arguments regarding our above opinion: (i) this Court relied on facts not supported by the record; (ii) this Court overlooked contrary
controlling authority
Georgia-Pacific claims that this Court relied on two facts not supported by the record. First, Georgia-Pacific argues that, contrary to the statement in our opinion, the emergency room physician did not testify, to a reasonable degree of medical certainty, that Rodrigues’s pulmonary edema as presented in the emergency room was likely caused by chlorine gas inhalation. This argument is belied by the following testimony:
Q. Doctor, as to the pulmonary edema which you noted, what in your opinion to a reasonable degree of medical certainty would be the most likely cause of that edema?
A. He did not reveal a history of cardiac disease at that time, so at that point it seemed more consistent with his stated history of chlorine gas inhalation.
(Emphasis supplied.) Although the physician later equivocated and referred to this as a mere possibility, this does not diminish the fact that in reviewing this summary judgment case, we must construe all evidence in favor of the nonmovant and need only determine whether some competent evidence supported plaintiffs claim, not whether all evidence supported that claim.
Second, Georgia-Pacific contends that no evidence showed Rod-rigues was in good health immediately before the chlorine exposure in March 1998. This is also belied by the record, which contains the following testimony from Rodrigues:
Q. How was your health the two to three months before March of 1998?
A. It was pretty good.
Q. Were you having any medical problems at all?
A. No.
Q. Do you recall having any illness in March of 1998?
A. None.
Q. Were you taking any medication at the time?
A. None.
In its second argument, Georgia-Pacific claims that this Court overloоked Beasley v. Northside Hosp., supra, in which our Court held that the medical testimony on causation in that case was insufficiently definite to provide a jury with a basis for finding in the plaintiffs favor. In that case, however, we emphasized that the pertinent causation testimony in the expert affidavit included “no assessment of the likelihood that the hospital’s alleged nеgligence caused [plaintiffs] injuries, no basis for the expert’s conclusion, and no expression of probability that the expert’s conclusion [was] accurate” (id. at 689-690); rather the only testimony as to the expert’s level of certitude on the pertinent causation issue was later expressed by the expert in his deposition as being no more than a possibility. Here, the affidavit of the emergency room physician as to causation not only gave a basis for its conclusion but stated its conclusion “to a reasonable degree of medical certainty,” which was even complemented by one “to a reasonable degree of medical certainty” stаtement on causation in the physician’s deposition (as cited above). Because the expert expressed the requisite level of certitude in the affidavit and at one point in his deposition, we will not (on summary judgment) apply Georgia’s contradictory testimony rule to reject that affidavit and testimony based on the physician’s numerous other statements in his deposition that in fact his opinion was based only on possibilities.
On this same issue, Georgia-Pacific further argues in its motion for reconsideration (for the first time in the history of this case, whether in the trial court or in this Court) that this Court failed to apply the standards of OCGA§ 24-9-67.1
16
to exclude consideration
Finally, Georgia-Pacific claims that this Court erred in holding in the alternative that there was sufficient nonexpert evidence (assuming the physician gave only “possibility” testimony on causation) to overcome summary judgment. Georgia-Pacific makes two fundamental errors in drаwing this conclusion. First, Georgia-Pacific once again inaccurately asserts that no evidence in the record showed that Rodrigues was in apparent good health at the time of the chlorine exposure. As discussed above, the record belies this assertion. Second, Georgia-Pacific cites to several cases holding that the proximity of events cannot
alone
establish that one’s exposure to certain medical procedures or certain chemicals resulted in the physical ailment that followed soon thereafter. See, e.g.,
Cherokee County Hosp. Auth. v.
Beaver
19
(evidence “that the injection was closely followed in time by the occurrence of pain and weakness in [рlaintiff s] leg...
standing alone ...
would not... be ... sufficient to authorize an inference that the injection is a proximate cause of the weakness in [plaintiff s] leg”) (emphasis supplied). However, the evidence that Rodrigues became ill soon after the chlorine exposure
does not stand alone
in this case but is accompanied by expert medical testimony that causally links the two events together (at a minimum as a possible cause based on Georgia-Pacific’s own arguments). The combination of this evidence with the medical testimony meets the standard reiterated in
Estate of Patterson,
supra,
For these reasons, we deny the motion for reconsideration.
Motion for reconsideration denied.
Notes
Matjoulis v. Integon Gen. Ins. Corp.,
Maurer v. Chyatte,
Maczko v. Employers Mut. Liability Ins. Co.,
Fulmore v. CSX Transp.,
Zwiren v. Thompson,
Estate of Patterson v. Fulton-DeKalb Hosp. Auth.,
Ga. Cas. & Surety Co. v. Jernigan,
Nat. Dairy Products Corp. v. Durham,
Whitley v. Piedmont Hosp.,
Ezor v. Thompson,
Thompson v. Ezor,
Dalton v. City of Marietta,
North Ga. Elec. Membership Corp. v. Webb,
Cannon v. Jeffries,
Beasley v. Northside Hosp.,
Georgia-Pacific moved for summary judgment in 2002, and the trial court ruled on the motion in 2007. OCGA § 24-9-67.1, enacted in 2005, applies retroactively to pending cases.
Nathans v. Diamond,
Ambling Mgmt. Co. v. Purdy,
Vickers v. Coffee County,
Cherokee County Hosp. Auth. v. Beaver,