*1 bankruptcy joint liability court decided the issue Cuneos’ for mortgage copy bankruptcy debt. The record contains no discharge, and other than the Bank’s admission that Mr. Cuneo’s personal mortgage discharged, indebtedness on the notes was nei- documenting ther this court the not nor trial court has evidence what bankruptcy Therefore, did did court not consider. the Bank is collaterally estopped claiming security from that deeds equitably should be reformed. presented, denying
Under the facts the trial court erred in summary judgment granting summary judgment to the Bank and equitable the Cuneos on the Bank’s claim to reformation of the 2003 security deeds.
Judgment Boggs Branch, JJ., reversed. concur. Decided March April 14,
Reconsideration denied 2015. Schulten, Turner, Turner, Ward & David L. Fuchs, Dean R. for appellant. Ryan appellees. Firm,
The Strickland Strickland, T. for FABRICS, A14A1587. SCAPADRYER INC. v. KNIGHT et al. 334) Judge. McFADDEN, Scapa Dryer appeals judgment Fabrics, Inc., from the entered on finding Scapa negligently exposed Roy Knight verdict that substance, toxic fibers, airborne asbestos and that contributing proximate development malignant was a cause of his Knight Knight (claiming wife, mesothelioma. and his Milva loss of consortium), negligence product liability prem- sued liability Knights Knight ises actions. The claimed that when worked independent doing as an contractor sheet metal work at the plant Waycross exposed between 1967 and he was to airborne yarn by Scapa dryer asbestos fibers contained in used to weave felts plant, pipe at the and to asbestos fibers contained in and boiler premises, insulation that maintained on the and that these development diag- contributed to his nosed in 2009. Knights Corporation, claiming also sued Union Carbide mesothelioma was caused his to asbestos which non-party Georgia
Union Carbide had Pacific, sold to LLC. The alleged Georgia manu- the asbestos to Pacific had used exposed Knight joint compound to the asbestos and that facture a during drywall 1973 and 1975. at his house between installation
During claims, considered evidence the trial on these exposed during con- his life to asbestos fibers also products multiple addi- whether 29 other and considered tained products non-party these were at fault entities associated with tional *2 provided Knight’s development mesothelioma, § in OCGA of proxi- (c). jury was found that mesothelioma 51-12-33 Scapa mately part by negligence and in the of defendants caused non-party Georgia part by negligence Carbide, in the of Union and (c), jury percent- 51-12-33 the assessed Pacific. Pursuant to OCGA Scapa; percent ages percent to to Union of fault as follows: 40 percent Georgia Carbide; assessing Pacific. Based on the verdict and 20 to percent Scapa, the trial court entered of the fault to Scapa judgment against $4,187,068.95. the amount sufficiency appeal, Scapa challenges the of the evidence On reliability jury’s liability, supporting the scientific of an the verdict of testimony, hearing prior expert to the admission the lack of a witness’ jury’s expert testimony, fault to other the failure to allocate of that non-parties jury charge form, certain on the verdict and submitted evidentiary rulings by However, there the trial court. decisions and support verdict, the the witness’ sufficient evidence was testimony admissibility hearing scientifically reliable, as to was required mandatory, was not of the was not showing both harm others, there has been no allocate fault to and Accordingly, evidentiary rulings. any jury charge we or and error as to affirm. Sufficiency the evidence. 1. denying its motion court erred contends that the trial liability is no evidence because there directed verdict as to
for a exposed showing Scapa plant Knight worked at the asbestos while he was knowledge superior the risk. The had or merit. contention is without validity presumption in of ver- favor of
There is every pre- verdict, Therefore, the rendition of a dicts. after sumption, construed inference, all evidence must be favorably upholding Neither a the verdict. most toward j.n.o.v. granted be where there is nor a can directed verdict support is in the verdict. Where evidence evidence to some Only grant when there conflict, motions is error. of such support directed can either a the verdict is no evidence j.n.o.v. granted, the evidence demands because or be verdict by jury. contrary returned to that a verdict (1) (587 Group Equip. MACI, LLC, v. Rental omitted). punctuation 364) (2003) (citations and Knight verdict, the evidence shows that in favor ofthe Construed malignant diagnosed cancer of with was pleural lining lungs; inhalation that this disease is caused may fibers; occur decades and that the disease of airborne asbestos Contrary contention, there was to asbestos. after periods exposed during Knight from to asbestos evidence that plant. There was also he worked at the 1967 to 1973 when exposed through Knight 1980s, mid that, from 1959 evidence Scapa involving multiple doing unrelated to to asbestos while work plumbing asbestos-containing products work, work, in sheet metal roofing drywall work, work, clutch and brake automobile shingling work. Scapa, exposure attributable to
As to asbestos Scapa plant, produced at the he while worked evidence (1) asbestos-containing exposed asbestos fibers from: was yarn to airborne plant; (2) by Scapa dryer felts at the used to weave asbestos-containing pipe insulation that he worked around and boiler *3 Evidence showed between when the insulation was removed. Scapa plant Knight at the on “several” or 1967 and worked Knight pres- “multiple” independent as an contractor. was occasions Scapa plant proximity weaving the ent at the in to the looms when using asbestos-containing yarn dryer to felts. looms were During weave scraped weaving process, fibers were off the airborne asbestos yarn, asbestos-containing in and lint or dust was created the process. There was evidence that knew or should have known dangers exposure a of the about the health of asbestos as result weaving process plant, dangers, at its but did not warn about the or any steps protect plant dangers, prior to take to workers from the piping insulation on and boilers at 1974. Other evidence showed that Scapa plant Knight proximity in contained asbestos. worked to piping and boiler insulation when the insulation was removed releasing The evidence suffi- airborne dust from the insulation. was produced, asbestos-containing products used, were cient to show or maintained at the Scapa plant in a manner which released Knight plant prox- fibers, at the in airborne asbestos and they imity those fibers when were released. asbestos Having evidence, all the we conclude that there was reviewed jury’s finding liability supporting the sufficient evidence [Scapa’s] therefore “we find no error in the trial court’s denial of liability.” Eco-Clean, Brown, Inc. v. on for a directed verdict motion 4) (2013). (3) (749 SE2d 324 Ga. Expert testimony.
2.
sufficiency
challenging
evidence,
further
of the
In
testimony
specific causation, the
claims that as to the issue
Knights’
junk
expert,
Abraham,
on
science.
Dr. Jerrold
is founded
Consequently, Scapa
inadmissible under
maintains that
adopted
Merrell Dow
courts in Daubert v.
the rule
for the federal
469) (1993),
(113
2786, 125 LE2d
Pharmaceuticals,
SCt
In addition required prove that these asbestos, the were alleging negligent exposures mesothelioma. Tort cases caused his types exposure First, involve two of causation. to a toxic substance capable causing par- general a causation; a substance is “whether population.” injury general Butler v. Union in the ticular or condition (citation 537) (2011) Corp., App. 21, 25 Carbide omitted). punctuation causation; Second, “whether a (citation injury.” particular Id. a individual’s substance caused punctuation omitted). plaintiff multiple here,
However, where, has Supreme involving multiple defendants, has held our Court asbestos prove plaintiff individual tortfeasor’s need not that “each injury.” contributing factor constitute[s] a ‘substantial’ conduct Crane, Jones, Inc. v. John differing degrees clearly contemplates “Georgia cul- law
Because plaintiff among joint pability a case can tortfeasors,” in such by proving proximate defen- that “the individual cause establish bringing contributing factor [been] conduct had dant’s tortious holding, damages.” plaintiff’s court In so Id. at 748. about the exposure suggested strongly-worded is not that a de minimis dicta (“the jury charge not have misled at issue would sufficient. Id. at 750 damages believing for a de minimis that it could award into asbestos”). case. de minimis *4 But this is not a case motion made or changes statute progeny [1] took Former OCGA § controls in this for the admission to the former place hearing in 2010 and 24-9-67.1 was case, or trial statute and continues are controlled the new rule set forth commenced on or after testimony replaced former OCGA § in civil cases. application by OCGA January OCGA § § of the standards 24-7-702, 24-9-67.1. 1,2013. 24-7-702 which Although makes no proceedings in this in Daubert applies the former significant any expo- de minimis considerably more than for responsible established, the of Dr. Abraham sure. As the Knight’s causes” of were “substantial responsible which substantially liable the indeed found 40 percent. in the amount of Daubert, assigned gatekeeping are role judges
Under trial testimony or evidence admitted is and all scientific “ensure 589, 597; former OCGA relevant, but reliable.” Id. at accord only not on the establishing reliability rests (b). 24-9-67.1 The burden aby pre and must be established proponent expert opinion Frazier, 1244, United States v. 387 F3d ponderance of evidence. Corp., Allison v. McGhan Med. 184 F3d (11th 2004); Cir. expert testimony or exclusion of the (11th 1999). Cir. Admission of the trial court. Meacham v.Franklin- is within the “broad discretion” Water Auth., 69, 76 County Heard App. Ga. Daubert, validity under courts assess the reliability
To test for
by considering
expert’s methodology,
generated,
not the conclusions
—
factors,
whether
necessarily dispositive
several
none of which is
tested;
it has been
theory
the method or
relied on has been
whether
review;
theory
has a known or
subject
peer
whether
rate;
has
potential
theory
gained general
error
and whether
Daubert,
community.
in the scientific
(1) (669 425) (2008) (punctuation footnote appropriate have us reverse the trial court’s dissent would exercise of that discretion. *5 particularly, minimis above, Butler was a de as noted
More responsible exposure had been in that case case. The defendant exposure percent Butler’s cumulative asbestos than one less supra, exposed potent Butler, the less form ofasbestos. had him to opinion App. was, extent in that case “Tothe The excluded at 22. Ga. they any products, patient exposed contrib- of these was dose, which is what fashion to his total asbestos uted in a cumulative (punc- supra, Butler, at 23 caused his mesothelioma.” omitted). tuation exposure case. Dr. Butler, however, this is a substantial
Unlike exposure opinion in this case was at issue Abraham’s about corresponds response hypothetical to the facts set that offered in to a exposure detailing Knight’s attrib- asbestos out above in Division posed following hypotheti- Scapa. Knights’ counsel utable to questions witness: cal hypotheticals Roy you for these
Q.And I want to assume doing Knight employed times 1967 and 1972 was at between making in textile mill textiles with sheet metal work asbestos-containing yarn. Okay? right.
AllA. during you times, I to assume that some Q. And want Roy Knight textile mill them, was at the but not all of operations going Okay? weaving on. that there were Okay. A. separate you on two And I want to assume that at least
Q. Knight dust in the Mr. disturbed thick settled occasions gray with mill that was in color which he associated textile yarns being Okay? mill. used right. A. All you that at other times And I to further assume
Q. want Knight using asbestos, observed mill that Mr. the textile present. there was white dust screens which Okay. A. finally dust inhaled some of the And that. . . Mr.
Q. you present during mill. Do at this textile his work was hypothetical opinion given facts to a that. . . set of have an certainty degree those as to whether of medical reasonable exposures be a cause of his mesothelioma? would objec- interposed point, Scapa’s a lack-of-foundation At that counsel pages colloquy thirteen that consumes tion. There followed objection transcript, After the was overruled. the end of which the at hypothetical Knights’ renewed counsel restated exposures objection overruled, testified, [for Dr. Abraham “those responsible] have been substantial causes for would which [Knight’s] mesothelioma.” involving
Consequently minimis the Butler issue de Scapa. against the extent the Butler the claim To was irrelevant to case, when the found not liable arose in this it was resolved issue Knight’s other to asbestos. the 29 entities associated with opined: It is true that Dr. Abraham also I evidence that there is a safe threshold haven’t seen if someone has a level of for risk of mesothelioma. So ... amount in their to asbestos above the ambient *6 obviously you lives, I if have that increases their risk. mean exposure, your you if risk is much lower than you’re had a a trivial person heavy exposure. gets But if the one that exposure, from a trivial it’s still asbestos related. disease very saying However, safe threshold is different there is no known saying threshold.2 Moreover Dr. Abraham’s from there is no safe opinion that there safe threshold is not controversial. is no known every exposure Scapa’s expert, Roggli, agreed: Dr. “each and Victor experiences an mesothelioma in excess of back- that individual with development ground contributing factor in the level is a substantial of the disease.” testimony
And while Dr.Abraham’s about threshold levels bears Butler, some similarities to the at issue in it is not the entity responsible against same. Butler involved a claim an for less percent plaintiff’s exposure. than one ofthe Here has been held percent responsible. by clear, moreover, It is no means that what Dr.Abraham means by equivalent exposure “trivial” is to the de minimis sort of at issue in “any exposure” opinion. Butler, an or what the dissent dismisses as example exposure, an Dr. Abraham “someone As of trivial offered doing laundry brought home their of someone who asbestos on work clothes.” mirroring opinion expert
Furthermore, instead of disqualified recognized logical Butler, in Dr.Abraham difficulties opinion. Obviously experiments expos- with that sort of ing that involve subjects precisely human measured amounts of asbestos are undisputed exposure apparently it is For that reason and because is that relevant lifetime, analysis. exposure question cumulative over a we the soundness of the Butler court’s justified by legal analysis proximate by The outcome in Butler would be better cause than analysis of in fact. a scientific cause exposure generally question. significance is The of asbestos ofthe out analyzed person creates, but once a has of the risk it in terms sensibly speak of increased or it is difficult to contracted the disease relationship becoming Consequently as to the ill. decreased risk very exposure change change risk, hard to “it’s between measure small levels.” opinion “methodology” underlying Dr. Abraham’s Moreover —
—
reasoning
refer to his
is
understand the dissent to
which we
—
hypo-
opinion
question
unexceptionable.
expert
that,
if a
patient
asbestos and no
has had one “trivial”
thetical
exposure,
mesothelioma, that trivial
nevertheless contracts
other
exposure
but
—
his
the disease was founded on
would be the cause of
only
opinion
underlying
known cause of meso-
that asbestos is
Again,
underlying opinion
controversial;
is not
thelioma.
that
expert,
Roggli, agreed.
under-
Dr.Abraham’s stated basis for that
Dr.
dispute
lying opinion
in the
“there is some
on this
is
while
experience
they are
literature,” Dr. Abraham’s
had been that “when
analysis,’
analyzed [by way
‘lung
appropriately
burden
fiber
person
nearly always
analysis]
that the
did indeed
will
show evidence
population.”
background
have asbestos
above
opinion
hypothetical
Consequently
issue,
even as to the
about a
methodology
investigation and
Dr.
is founded on scientific
Abraham’s
opinion
case,
And in
is
sufficient under Daubert.
is therefore
opinion
exposure for
to his further
which
not central
Knight’s injury. Accordingly,
responsible was a substantial cause of
is
admitting
testi-
did not err in
Dr. Abraham’s
the trial court
responsible
mony,
opinion
for a substantial
and his
*7
Georgia
injury
than
under
law. John
cause of that
is more
sufficient
supra,
Crane,
3. No before Scapa trial because the trial that it is entitled to a new contends admitting hearing Dr. Abraham’s did not conduct a before court expert testimony However, as § under 24-9-67.1. former OCGA always required. hearing acknowledges, Former such a is not “[u]ponmotionofaparty,the 24-9-67.1(d)provides: OCGA court pretrial hearing may determine whether the hold a expert’s qualifies as an and whether witness testimony (a) requirements of subsections satisfies the construing language (b) of a section.” And in ofthis Code “ ordinarily denotes command and statute, the word ‘shall’ ordinarily permis- ‘may’ permission, denotes whereas not Thus, cannot conclude that not command.” we sion and hearing required on this issue. to conduct a trial court was Cartledge App. (3)(750 772) (2013) Montano, 322, 330 v. 325 Ga. SE2d (citations punctuation emphasis original). omitted; in
4. Allocation of fault.
Scapa complains required jury that a new trial is because the by non-parties. mandated the evidence to allocate fault to other claim is without merit. had “a burden to establish a rational apportioning nonparty” basis for fault to a and whether it “met that given presented jury burden [was trial evidence a matter] for the App. Polite, to determine.” Double ViewVentures v. 326 Ga. (1) (757 172) (2014) (citations omitted). “jury’s SE2d It was the prerogative accept reject, part, or in whole or the evidence Montgomery (1) (692 Barrow, submittedf.]” v. SE2d provides This enumeration no basis for reversal. liability jury charge. 5. Strict liability, agree
Since there was no claim based on strict we with jury charge that the trial court erred to the extent the included liability. However, instructions related to a claim of strict even assuming charge error, a review of the as a whole reveals that such error was harmless. “[I]t well established that instruc- determining tions must be read and considered as a whole in whether charge Specialists, contained error.” v. LLC, West Breast Care Ga.App. (1) (659 SE2d895) (2008) (citation punctuation 521, 522 omitted). noting liability” matter,
As an initial
it bears
that the term “strict
jury charge.
objectionable charge
was never
used
The lone
appellant
identified
in its brief was the
“[i]f
instruction that
balancing
utility
product you
after
the risk and
ofthe
find...
product
design defect,
suffered from a
then the Plaintiff is entitled to
charge
given
part
However,
recover.”
ofthe court’s full and
negligence
negligence-
accurate instructions on the law of
and the
product liability
properly charged
based
claims in the case. The court
negligence,
nothing
on
and there is
in the record to indicate
jury may
improper
liability
that the
theory
have based its verdict on an
strict
recovery. Compare
Peterson,
Goldsmith v.
(2) (703
694) (2010). Accordingly, any
error was harmless.
Foskey Foskey,
(2) (363
547) (1988) (error
v.
submitting punitive damages jury the claim for to the because there support a claim. evidence to such was some through ignorance, mistake, or If a tort is committed damages negligence, limited to the actual are mere punitive damages injury received, are recov- for vindictive or wilfully, maliciously, only or a defendant acts erable when rights disregard It is not of others. with a wanton damages person recovery punitive for that essential to a inflicting damages guilty intentional of wilful and It that the act be done under such misconduct. is sufficient an entire want of care and circumstances as evinces consequences. indifference to the conscious (4) (461 262) (1995) Roseberry App. 202, Brooks, SE2d v. 218 Ga. omitted). (citations punctuation Here, there was evidence from and jury and conscious could have found an entire want of care which indifference to the consequences by Scapa. jury charges.
7. Omitted Scapa Wingo App. 156, Harrison, SE2d cites v. failing 507) (2004) proposition for the that the trial court erred “Scapa duty inspect charge that had no materials on its misplaced. premises.” Scapa’s Wingo reliance on As an initial concerning jury charges. matter, that case did not involve issues principle ordinary diligence may require legal It did not state premises knowledge inspection an where the owner does not have case, evidence showed of the defect. Id. at 160. But in the instant — premises, knowledge on its had ofthe defect —asbestos legal principle required. charge thus a Likewise, on that was not Scapa mistakenly Peachtree, L.P., cites Dalton v. 933 156) support App. (2008), 123, 127 for its claim part charged “that when the trial court should have liability premises contractor, the has no the for is surrendered to a owner Again, injuries arising that case did the contractor’s work.” from any jury Moreover, the law instructions. misstates not involve legal principle actually Dalton, recites the that a forth in which set property property possession and control ofits owner who surrenders injuries independent generally liable for contractor is not to an (1). employees. This Id. at 127-128 sustained the contractor’s principle 51-2-4 and 51-2-5 §§ ofcontrol “isbased OCGA surrender — property employer (5), provide instance, a owner that an which — independent responsible hiring for torts of its a builder is not employer the contractor’s unless the retains control over contractor (2) (479 England 44, 47 Co.,224 Ga. v.Beers Constr. work.” alleged being torts of Here, for the was not sued any independent being by Knight contractor, and instead was sued alleged negligence regarding himself for own asbestos on its *9 premises. Id. reviewing give jury instruction,
In a trial court’s failure to jury charge jury charge whole, “we must look to the if as a and the accurately fully apprised applied a whole and ofthe law be give deliberations, in its instruction, then the refusal to an additional accurate, even if that additional instruction were does not amount to App. (2) (739 28) McDowell, 507, error.” Burdette v. (2013) (citation SE2d punctuation omitted). Scapa and has made no show- ing jury charge fully that the trial court’s as a whole did not accurately apprise applicable law, ofthe or that the failure to give requested charges was error. 8. Admission exhibit. admitting
The trial court did 44, not err Plaintiff’s Exhibit an Scapa relating Scapa’s internal 1977 memorandum switch to production of non-asbestos felts.
[T]he admission of evidence is within the sound discretion of appellate the trial court and courts will not interfere absent having tendency abuse of that discretion____[E]vidence admissible, establish facts at issue is relevant and and no slight probative value, matter how our law favors admis- sion of relevant evidence. Georgia Urology App. (1) (769
Hand v. South Center, 332 Ga. multiple Exhibit was relevant to issues including case, the existence of the asbestos hazard and Accordingly, to it. the trial court did not abuse its discretion admitting the document into evidence. Opening 9. statement.
Scapa denying contends that the trial court erred in its motion Knights’ attorney during opening for a mistrial after the stated his argument Scapa “employed people exposed had a lot of a lot people, including Knight, Mr. However, to asbestos.” grant
[t]he decision to a mistrial rests within the sound court, discretion of the trial and we will not disturb that ruling court’s absent Moreover, manifest abuse. unless it is apparent preservation that a mistrial was essential to the right judge trial, to a fair the discretion of the trial will not be interfered with. (4) (592 83) Intl., Gale,
Mon Ami Inc. v. (2003) (citations punctuation omitted). Scapa Here, has not preservation right shown that a mistrial was essential to to a trial, fair and we therefore will not interfere with the trial court’s exercise of its discretion. Questioning Scapa representative. 10. by overruling objections claims the trial court erred its
questions posed by Knights’ Scapa representative. counsel to a A hygiene report Scapa’s Waycross plant, 1975 industrial from admit- ted into evidence as Plaintiffs’ Exhibit made a recommendation employees that ing ensure not wear asbestos-contaminated cloth- Scapa accomplish by providing work,
home from and that change Knights’ clothes, facilities, work shower rooms. The questioned Scapa representative prior whether, counsel a any as to protective made effort to take these measures. objected question counsel to the on the basis that Scapa employee not a and this is “not a take-home case.” The trial *10 by overruling objection. did Moreover, court not err the trial court by allowing Knights’ Scapa’s objection, did not err question Scapa counsel, over to Scapa representative prior whether, the same about point protect could to actions it took workers or others coming plant into the from to asbestos. These matters were relevant asbestos, to issues of the existence and and Scapa’s knowledge, and thus the trial did court not abuse its discre- allowing questioning by supra Hand, tion such counsel. See (evidence having tendency to establish facts at issue is relevant and admissible). Knight’s testimony.
11. Knight improperly yarn claim that referred to the at Scapa yarn” personal as “asbestos it because was not within his knowledge preserved has not been for review because after the testimony, gave Scapa the trial court curative instructions to which objection. Scapa raised no If was dissatisfied with the trial court’s objection action, curative mistrial, it should have renewed its or moved for a having assignment so, “and not done of error is without (4) (128 Kendrick, merit. Kendrick [Cit.]” v. any waived, And even if the issue had not been error was given showing harmless other evidence cited above in Division 1 yarn containing Scapa. use of asbestos at Limiting testimony expert. 12. presuming Scapa claiming Even is correct in that the trial permitted expert opine quantify court should have its about and background levels, asbestos has failed to harm from show testimony. State, the exclusion of such See Williams v. (1) 261) (2014) (appellant
876, 880 must show harm as well evidentiary ruling). as error trial court’s Judgment Doyle, Boggs Barnes, J., J., P. concurs. P. and affirmed. Ray, fully judgment only JJ., concur inDivisions and 3-12 and in Andrews, J., Branch, J., 2. Division P. dissent. Presiding Judge, dissenting.
ANDREWS, respectfully following (1) I dissent for the reasons: produce expert testimony prove failed to the issue of reliable and admissible on
specific Knight’s exposure causation that Mr. to asbestos Scapa Dryer plant contributing Fabrics, at the mesothelioma; Inc. was a cause ofhis
(2) by admitting the trial court erred unreliable (3) causation; on the issue of the erroneous admis- expert testimony requires judgment against sion of this (4) reversed; be circumstances, under the the case should be remanded for a new trial. undisputed Knight diagnosed
It was that Mr. in 2009 with malignant mesothelioma, a disease caused inhalation of airborne asbestos fibers. Evidence at the trial showed from 1959 through Knight exposed 1980s, the mid Mr. to airborne asbestos multiple involving multiple asbestos-containing fibers from sources products during performed plumbing, metal, work he with sheet dry roofing. wall, automobiles, and considered evidence that Corporation, defendants, two named and Union Carbide non-party (including Georgia LLC), Pacific, entities were associ- asbestos-containing products, negligently exposed ated with these Knight during Mr. of his life. to airborne asbestos these two-and-a-half decades Scapa,
As to evidence showed that Mr. worked at the Scapa plant independent doing as an contractor sheet metal work on “multiple” “several” or occasions between 1967 and 1973. On some of weaving plant occasions, these he was near felt looms at the produced airborne dust, asbestos lint or or was near asbestos- *11 containing pipe plant or boiler insulation at the when the insulation was removed and airborne dust was released. to As Union Carbide Georgia Knight Pacific, and that, evidence showed while Mr. having a house constructed sometime between 1973 and he occasionally during period visited the construction site a two-week of during drywall time which was installed with the use of an asbestos- containing joint compound by non-party Georgia- manufactured by Pacific which contained asbestos sold Union Carbide. There was during Knight that, evidence visits, some of those Mr. was near joint compound. airborne dust from the exposures Knights In addition to evidence of asbestos, to the produced expert opinion testimony support in of their claim that Mr. by exposures Knight’s to asbestos. was caused his mesothelioma jury (1) considering evidence, verdict: rendered a After part by Scapa’s Knight’s finding was caused in that Mr. mesothelioma part by part by negligence, negligence, and Union Carbide’s (pursuant negligence; (2) assessing Georgia § to OCGA Pacific’s and Scapa, percent (c)) percent the fault to to Union Car- 51-12-33 of jury’s compensatory percent Georgia bide, Pacific. The total and 20 Knight’s pain suffering; damage $7,000,000 for Mr. award was (reduced by Knight’s expenses $500,000 medical the trial for Mr. $467,672.37); Knight’s $3,000,000 for Mrs. loss of con- court to Scapa. punitive damages against The awarded $790 sortium. percent Scapa, the trial court entered a Based on 40 fault assessed to judgment against $4,187,068.95. in the amount of expert opinion testimony produced by Scapa contends that the Knights under former to establish causation was unreliable erroneously 24-9-67.1; denied its motion that the trial court OCGA testimony; Knights seeking in limine to exclude this and that prove it contributed to Mr. failed to reliable evidence that caused or Accordingly, Scapa Knight’s that the trial mesothelioma. contends judgment erredby denyingits a directed verdict and court motions for ground. notwithstanding the on this verdict tort claim element of their toxic substance As an essential required prove general against Scapa, both were capable causing a causation, at issue “is of whether substance general population,” specific injury particular in the or condition particular individual’s causation, a substance caused a “whether Corp., injury.” 21, 25 Carbide Butler v. Union punctuation omitted). general 537) (2011) (citation causa As expo Knights produced undisputed evidence that tion, it that the is capable causing ofairborne asbestos fibers sure to and inhalation general population. causation, in As to in the mesothelioma plaintiff multiple substance has to a toxic a case where alleged joint multiple involving tortfeasors, to be defendants particular respect defendant is whether issue with the substance to a involving to the caused or contributed that defendant injury. plaintiff’s Crane, Jones, Inc. v. John joint negligence tortfeasors found joint mesothelioma, and as a concurred to cause Mr. Scapa’s negligent asbestos Mr. tortfeasor, development of mesothelioma. contributed to his culpa- differing degrees clearly contemplates Georgia law injury bility among joint result is the tortfeasors. Where they may parties, concurring negligence oftwo or more ofthe *12 96 jointly severally. It that an
be sued or is well settled action may against joint be maintained two tortfeasors whose negligence produce injury, though contributes to an even obligations upon respect not with same do rest each to injured. support recovery person a It is sufficient to if the negligence contributing though cause, of both be a even one injured degree person higher care, of owes to the a and even though differing degrees negligence by there be of each. (citations, punctuation emphasis omitted). 748-749 Where Id. at negligence parties injury, of there two or more concurs cause an requirement negligent that each individual tortfeasor’s is no conduct contributing proximate be a “substantial” factor to constitute a cause injury; negligent rather, of an ofthe conduct individual tortfeasor only “contributing Although proof need be a cause.” Id. at of 747-752. generally questions in a tort causation toxic substance claim involves dosage regarding plaintiff the level or of the toxin to which the exposed, plaintiff necessarily produce required not evidence dosage exposure exposure at measured levels to establish that an contributing injury. Supply Co., v. cause Fouch Bicknell App. (756 682) (2014); 863, 326 Ga. 868-869 SE2d v. CSX Fulmore Transp., App. (557 64) (2001), Inc., 884, 252 891-892 over- Ga. grounds, Ayers, on other & R. ruled Western Co. v. U. S. Norfolk 151, 1210, n. SCt LE2d But a plaintiff exposure contributing cannot establish an was a cause injury by proof “any exposure” substance, of the matter to the toxic no insignificant. small, minimis,
how Fulmore, de or App. example, supra, Supreme Crane, at 892. For in John Court “contributing that a minim[i]s observed cause” does not include “a de injury,” approved jury contribution con- instruction on tributing charge cause in a toxic substance claim on the basis “the believing
at issue would not have misled
into
that it
damages
could award
a de minim[i]s
John
asbestos.”
Crane, Inc.,
Rather, cases, in toxic tort causation requires expert based, reliable which is at the least, on the determination that there was a reasonable probability negligence injury. caused the The testi- mony probable distinguished cause, must at least a show possible from a mere cause. App. (citation punctuation omitted);
Fouch, 326 Ga. at 869 Rod rigues Georgia-Pacific Corp., 141) v. (2008). respect sought with causation Scapa plant to establish (and with at the to asbestos
to Mr.
respect
tortfeasors) by
alleged joint
exposures involving
other
opinion testimony
producing expert
Abraham, M.D., a
from Jerrold
during
“any exposure”
pathologist,
his life to
Mr.
had
development
contributing
cause of his
was a
airborne asbestos
pre-trial
Scapa joined
limine, filed
motion in
in a
mesothelioma.
*13
expert
seeking
pursuant
24-9-67.1,
to exclude this
§
to former OCGA
requirements
reliability
opinion
in
set forth
it failed to meet
because
Pharmaceuticals, Inc., 509
and in Daubert v.Merrell Dow
the statute
progeny (as
469) (1993)
(113
125 LE2d
U. S. 579
SCt
judges perform
statute).3
adopted
Daubert,
in
trial
in the
As set forth
expert testimony
respect
“gatekeeping”
admission of
testimony
role with
a
or evidence admitted
that
and all scientific
“ensure
only relevant,
589, 597;
§
former OCGA
but reliable.” Id. at
is not
testimony
seeking
expert
(b).
party
has
The
admission of
24-9-67.1
by preponderance
establishing
the evidence that
of
a
of
the burden
scientifically
Georgia,
expert’s opinion
HNTB
Inc. v.
reliable.
the
Hamilton-King,
is
770) (2010);
Allison v.
646
(11th
1999).
Corp.,
1300, 1306
Cir.
Whether
McGhan Med.
184 F3d
legal
expert opinion testimony
determination
as reliable is a
admit
judge
absent an abuse of
trial
that will not be disturbed
for the
Depot
U.S.A., Inc.,
279
discretion. Mason v. Home
judge
whether
Daubert, the trial
must assess
Under
expert’s testimony
methodology underlying
reasoning
is
or
reliability
scientifically
Daubert,
U. S. at 592-593. The
valid.
many
generally
factors, which
involves consideration
assessment
experts
every
necessarily
exclusively apply
case,
in
to all
do not
or
testimony
underlying
including
theory
or
whether the method
falsified;
or
whether the method
tested to see if it can be
has been
peer
publication;
theory
subjected
whether it
review and
has been
generally
potential
error;
it is
rate of
and whether
has a known or
community.
accepted
Daubert,
U. S. at
in the relevant scientific
Georgia,
592-594; HNTB
Without “any exposure” opinion seeking in limine to exclude Dr.Abraham’s testimony expert opinion trial at The trial court admitted unreliable.4 by The current proceedings OCGA 24-9-67.1. in this case were controlled former § apply statute, 24-7-702, significant changes the Daubert and continues to makes no OCGA § in civil cases. test for admission of case, hearing. Former in the failure to hold a I find no error Under the facts of may pretrial party, (d) provided “[u]pon hold a motion of a the court OCGA 24-9-67.1 statute, supplied). reliability (emphasis the record hearing” Even where under the to determine support from Dr. Abraham causation to a reason- degree certainty, Knight’s able of medical Mr. mesothelioma was by exposure Scapa plant. caused his to airborne asbestos at the In support opinion, malignant of his Dr. Abraham testified meso- thelioma is a disease caused fibers; inhalation ofairborne asbestos dose-responsive, that likely disease is in other words “it occurs more frequently people exposure”; and more that have more may exposure; extremely it occur decades after and that the disease is general population, despite general rare population the fact that constantly exposed to asbestos in the air at low back- ground exposures or ambient levels. When asked which asbestos caused or contributed to Mr. Dr. Abraham — period testified that all of his individual over a of time — his cumulative caused his mesothelioma. Dr. Abraham explained methodology underlying opinion his in answers to questions causation, various about as follows: you recognized history Q. If have someone who has they diagnosis to asbestos and have a confirmed you? mesothelioma, what does that mean to enough put together.... A. That’s one and one Most of the epidemiology dose-response world’s relationship that has shown the *14 relationship
and the causal ... is based on history exposure. on the . . .
InQ. someone with mesothelioma and documented asbestos exposure, exposures which of those asbestos over their life cause that disease? impossible why
A. It’s to sort them out. That’s the index is exposure, totality exposure____ called cumulative oftheir Q. What does that mean? exposure [T]he
A. cumulative is what relates to their risk for developing the disease . . . the sum of all the individual exposures exposure goes up, goes up. .... As the the risk positive dose-response That would be what’s considered a Kumho Tire Co. v. the trial court reliability, court report, along “gatekeeper” official duties in OCGA 24-9-67.1 and does not include 872-873 decide whether or when to determine the under the with the motion in limine and it has “the same kind of enjoys CSX accordance with the law. specific findings showing Carmichael, 543) (2008). expert’s methodology whether when it decides that Daubert. statute, generally special briefing On the 526 U. S. Moreover, latitude in present a trial court will be and make a response, provided that or other record, satisfying deciding Transp., the trial court has carried out its role as expert’s it proceedings reliability appears SCt how to test an Daubert’s Inc. v. presumed relevant that the McDowell, a sufficient determination under former 143 LE2d are needed to gatekeeping requirement, expert’s expert deposition to have basis reliability, performed for is reliable.” investigate App. 871, the trial and its relationship. exposure, greater greater population only . . . And can be measured in a risk. this gets disease, in the that their risk is because individual percent. hundred . . . Knowing Knight] Q. that has an [Mr. asbestos-related meso- just percent, you thelioma, his risk hundred is a is what said? got except got risk,
A. He’s it so measure he’s there’s no for the disease. . . . exposures each
Q. [A]re that he’s described you together, you up case, if add them all add that hundred percent? up exposure. present
A.Youadd At to his cumulative there’s way no to sort out how much one or the other contributed but exposures [,] for each ofthose individual since there is no safe known threshold for ... if he’d mesothelioma only hypothetical... had one of those in that developed enough that would have been to cause it. methodology, expressed opinion,
Based on this Dr. Abraham his degree certainty, any every exposure to a reasonable of medical Knight experienced Scapa plant to asbestos that Mr. at the was a contributing opinion cause of his mesothelioma. Dr. Abraham’s was Knight’s exposure Scapa plant that, since Mr. to asbestos at the contributing zero, more than mesothelioma.5 was a cause of his Butler, In we concluded that the trial court properly exercised its discretion to exclude as unreliable opinion testimony methodology pathologist using “any exposure” from a the same prove, specific causation, on the issue of plaintiff’s exposure asbestos-containing product to the defendant’s contributing plaintiff’s case, In was a the cause ofthe mesothelioma. methodology underlying expert’s “any exposure” opinion (also known as “no threshold” or “linear non-threshold” models for causation) rejected scientifically testable, unreliable, as not *15 product principles not the of reliable and methods under former (b) (2). Butler, 24, 27, 38, 40-41, § 24-9-67.1 at OCGA appendix, 43-44, 47. As an Butler attached the trial court’s detailed 5 Scapa’s specific contention that Dr. Abraham’s on causation was by preserved appellate of motion in unreliable was for review trial court’s denial Daniel, Harley-Davidson limine. Motor Co. v. 285-286 considering methodology underlying pathologist’s opin- order “any exposure” plaintiff’s ion that to asbestos caused the mesothe- logical inconsistency methodology lioma. The trial court noted the ofa presumes exposure necessary that there is no threshold level for admitting virtually every- asbestos to cause while general population one in the has inhaled some asbestos fibers and extremely Citing the disease remains Id. rare. at 40-41. to the (Federal Evidence, Reference Manual on Scientific Judicial Cen- 2000) pointed “any exposure” ter, 2d ed. the trial court out that the methodology’s exposure promulgated by regu- reliance on standards latory agencies analysis demonstrates a risk assessment rather than relationship a reliable conclusion on “the likelihood that a causal specific likely (emphasis case is more than not.” Id. at 41-42 original). methodology underlying
Other courts have examined the
“any exposure” opinion
specific
rejected
on
causation and also
it as
scientifically
LLC,
unreliable. In Betz v.
Pneumo Abex
615 Pa.
27) (2012)
Pennsylvania Supreme
508-509, 539, 549-554 A3d
rejected admissibility
“any exposure” expert opinion
Court
testi-
mony
prove
every exposure
asbestos,
small,
no matter how
contributes to cause asbestos-related disease. Betz concluded that the
“any exposure” opinion
properly
expression
viewed as an
of risk
causation,
assessment
rather than
and that
it suffered from an
—
irreconcilable conflict
one cannot maintain that a de minimis
exposure
conceding
is causative while also
that a disease is dose-
responsive.
appreciating
Id. at 548-550. While
the difficulties of
establishing causation, the Court in Betz found it was not a viable
indulge
every solution to
in a
asbestos,
fiction that
no
exposures,
matter how minimal in relation to other
creates a factual
specific
issue as to
causation. Id.
at 551. The Court concluded
“any exposure” opinion
proof
sanction the
as reliable
“subject
joint-and-several liability
causation would
defendants
full
injuries
any reasonably developed
and fatalities in the absence of
reasoning
support
scientific
that would
the conclusion product
by
causing
sold
the defendant was a substantial factor in
Similarly,
harm.” Id.
in Nat. Bank Commerce v. Assoc. Milk Pro-
(8th
1999),
ducers, Inc.,
101 Daubert reliability to consider applied the Court 1995), “lin- under the name methodology traveling causation specific same Whiting, According Id. at 23. model.” ear nonthreshold if terms, a lot of the model assumes layman’s [i]n thing, the same while a little of you, is bad for something bad, degree. must be so some equally not perhaps be a threshold at might idea that there rejects model become effects of a substance benign which the neutral or toxic. it be on the basis that “cannot Whiting rejected methodology this
Id.
potential
and it “has no known or
falsified,
it be validated”
nor can
Co.,
ConocoPhillips
v.
accord Henricksen
25;
605
Id. at
rate of error.”
non-threshold model
(E.D.
2009) (linear
1166
Wash.
FSupp.2d
exposure, but not
risks of low-level
appropriate
predicting
is
Davidson v.
specific causation);
determine
scientifically reliable to
LLC,
(W.D.
2014) (“every
at *5
La.
Ga. Pacific
For reasons above, I find consensus authorities, growing discussed ous other on law, “any exposure” opinion Abraham’s matter of Dr. as a methodology, failed based on unreliable specific causation was not “the expert testimony, and was Daubert standard for reliable former required by methods” as principles reliable product of that the trial court I conclude (b) (2). Accordingly, 24-9-67.1 OCGA § in limine motion by denying Scapa’s erred its discretion and abused at trial to testimony by admitting testimony, to exclude this Scapa. as to specific causation prove specific causation erroneously admitted
In the absence of any Abraham, produce failed to Dr. testimony from their case — that essential element of proving an admissible evidence a contrib- Scapa plant at the to asbestos Knight’s exposure Mr. Moreover, it clear from Dr. of his mesothelioma. uting cause formed exposure” methodology “any that his testimony Abraham’s causation, including opinions on all of his the basis for Scapa plant testimony Knight’s exposures to asbestos at the that Mr. majority opinion points out, “substantial causes” were, as the methodology, any ex- Abraham’s mesothelioma. Under Dr. posure small, asbestos, can be characterized as a no matter how opinion, because, in all contribute cause” his “substantial present way “[a]t there’s no to sort out to cause how much one or the trial to which contributed____” at other There was no evidence any dosage establishing asbestos measured level or of airborne exposed Scapa plant any other Mr. at the or from exposed. evidence, Dr. Abraham’s source to which he was Under “any exposure” methodology erro- based on the causation neously exposure (even to find that level of de invited *17 minimis) contributing a of was sufficient to constitute cause clearly significant convincing and was factor liability Scapa plant. apportion percent 40 for at the 451) (1997) Knebel, v. See Johnson Ga. (reversal required expert opinion erroneously because admitted jury’s apportioning liability” to the heart of the “went verdict”). “likely significant jury’s in the was a factor judgment Knights against reasons, the in favor of the For these Scapa denying Scapa’s post-verdict It the trial erred should be reversed. follows that court grounds judgment
motion on these for notwithstanding (or alternatively trial). the verdict for a new OCGA appellate § 9-11-50. Where an court determines that a motion for judgment notwithstanding erroneously the verdict was denied and judgment, (d) provides “nothing § reverses the OCGA 9-11-50 precludes determining appellee this Code section entitled to a new trial or from it from that the is
directing the trial court to determine present granted.” facts, whether a find that the relied on the trial court’s erroneous trial shall be On the I new would Knights Knights trial, are entitled to a new trial. At
ruling expert causation Although their evidence essential to case was reliable and admissible. Knights challenging notice in the had trial court that reliability testimony “any exposure” of causation based on the methodology, appellate Georgia time, at the no decision in had reliability testimony. Butler, addressed the of this decision supra, judgment on this issue was not rendered until after final in the record, trial court. Given this evidence in the I would conclude that ruling appeal excluding not a case where on “any exposure” methodology causation clusively based on the con- Knights produce
establishes that the would not be able to sufficient reliable evidence Under causation. the circum- give stances, I would remand the case for a new trial to opportunity produce expert testimony prove specific an reliable subject, Scapa’s pre-trial right challenge causation, course, reliability any expert testimony, and the trial court’s exercise of “gatekeeping” its function under OCGA 24-7-702 and Daubert. Judge joins
I am authorized to state that Branch in this dissent. Decided March April
Reconsideration denied Young, Young, Hawkins Parnell Thackston & H. Lane M. Eliza- Christopher O’Neill, Collier; LLC, beth S. Duane Morris William D. appellant. Barwick, for appellees. Firm, Buck,
Buck Law Robert C. for A14A1643. BEFEKADU v.ADDIS INTERNATIONAL MONEY
TRANSFER, LLC et al. 785) Judge.
Branch, Money (the “LLC”), Transfer, Addis International LLC and a majority (collectively, “Addis”) Tsega of its members sued Befekadu misappropriation for conversion and of the LLC’s assets fiduciary duty. During claims, breach of the first trial ofthose the trial disqualified court Befekadu’s counsel and declared a mistrial. Befe- proceeded pro trial, kadu se at the second and the awarded Addis *18 compensatory damages expenses, attorney claim, for the conversion fees and punitive damages. subsequently The trial court entered judgment jury’s an order and final appeals based on the verdict. Befekadu disqualification that order and the order from the first trial. apply legal We conclude that the trial court did not the correct disqualifying standards when counsel for Befekadu and therefore judgment vacate the and remand the case the trial court for proceedings opinion. respect consistent with this With to Befekadu’s appeal judgment, of the final we conclude that he has abandoned the respect errors he enumerated with to the second trial because he support argument authority. failed to them with or citation of money transferring The LLC was formed in 2006 as a small company principally transferring that was involved funds between Ethiopia. originally the United States and There were four members — Shibeshi, Befekadu, Teshome, of the LLC Mesfin Thomas president, Woinshet Desta. Shibeshi was the Befekadu was the secretary, treasurer, Teshome was the and Desta was a cashier. All of