SCAPA DRYER FABRICS, INC. v. KNIGHT et al.
S15G1278
Supreme Court of Georgia
JUNE 20, 2016
299 Ga. 286 | 788 SE2d 421
We have reviewed the record and we agree with the Review Panel and the special master that Houser‘s appeal has terminated within the meaning of Bar Rule 4-106 (f) (1), and that under the circumstances of this case, disbarment is the proper discipline. Accordingly Respondent George D. Houser hereby is disbarred from the practice of law in Georgiа. He is reminded of his duties under Bar Rule 4-219 (c).
Disbarred. All the Justices concur.
DECIDED JUNE 20, 2016.
Paula J. Frederick, General Counsel State Bar, Jenny K. Mittelman, Assistant General Counsel State Bar, for State Bar of Georgia.
S15G1278. SCAPA DRYER FABRICS, INC. v. KNIGHT et al. (788 SE2d 421)
Scapa Dryer Fabrics, Inc. is a textile manufacturer, and in the late 1960s and early 1970s, it produced dryer felts at a manufacturing facility in Waycross. Some of the pipes and boilers in that facility were insulated with material containing asbestos, and Scapa used yаrn containing asbestos in some of its manufacturing processes. Between 1967 and 1973, Roy Knight worked on multiple occasions at the Waycross facility as an independent contractor. Almost forty years later, Knight was diagnosed with mesothelioma, a cancer most commonly associated with the inhalation or ingestion of asbestos fibers. After his mesothelioma was diagnosed, Knight and his wife sued Scapa, claiming that Scapa negligently exposed him to asbestos at the Waycross facility and caused his mesothelioma.1 The case was tried by a Ware County jury, which returned a verdict against Scapa and awarded more than $4 million in damages to the Knights.2 The trial court entered a judgment upon that verdict, and Scapa appealed.
Among other things, Scapa argued on appeal that the trial court erred when it admitted the expert testimony of Dr. Jerrold Abraham, a pathologist. In his testimony, Dr. Abraham opined that, if Knight actually was exposed to asbestos while working at the Waycross facility, that exposure was a cause of his mesothelioma, regardless of the precise extent of the exposure. Dr. Abraham explained that a small number of respirable asbestos fibers are naturally present in the air, but exposure to this background asbestos is not known to cause mesothelioma. When someone is exposed to respirable asbestos in excess of the background, however, his cumulative exposure may build to a point that it exceeds the capacity of the lungs to absorb the exposure, and at that point, the cumulative exposure may lead to mesothelioma. According to Dr. Abraham, the precise point at which cumulative exposure is sufficient to cause any particular person to develop mesothelioma is not scientifically knowable, and for that reason, when a person actually has mesothelioma, it can only be
attributed to his cumulative exposure as a whole. Because each and every exposure to respirable asbestos in excess of the background contributes to the cumulative exposure, Dr. Abraham reаsoned, each exposure in excess of the background is a contributing cause of the resulting mesothelioma, regardless of the extent of each exposure.
To begin, we look to former
If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
(1) The testimоny is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Like most questions of admissibility, whether expert testimony ought to be admitted under former
Generally speaking, a trial court must assess three aspects of proposed expert testimony - the qualifications of the expert, the reliability of the testimony, and the relevance of the testimony - to discharge its responsibilities as a gatekeeper under former
former
In this case, Scapa does not dispute that Dr. Abraham has adequate credentials to qualify as an expert. Scapa vigorously disputes, however, the reliability of his testimony, asserting that the cumulative exposure theory by which Dr. Abraham developed his opinions on causation is not scientifically valid and is, to the contrary, “junk science.” Scapa also disputes the relevance of his testimony, аrguing that it simply does not “fit” the pertinent causation inquiry under Georgia law. In the circumstances of this case, we agree that the critical opinion conveyed by Dr. Abraham in his testimony — that any exposure to asbestos at the Waycross facility was a cause of Knight‘s mesothelioma, regardless of the extent of the exposure — does not “fit” the legal standard for causation, and for that reason, the admission of his testimony undеr former
To prove causation as against Scapa under Georgia law, Knight and his wife had to show that exposure to asbestos at the Waycross facility was “a contributing factor in bringing about [his mesothelioma].” John Crane, Inc. v. Jones, 278 Ga. 747, 748 (604 SE2d 822) (2004). See also DaimlerChrysler Corp. v. Ferrante, 281 Ga. 273, 274 (1) (637 SE2d 659) (2006); Gooch v. Georgia Marble Co., 151 Ga. 462, 464 (107 SE 47) (1921). We previously have rejected the notion that the “contribution to the resulting injury [must] be ‘substantial‘” to show legal causation. John Crane, Inc., 278 Ga. at 748. At the same time, however, wе cautioned that a “de minimis” contribution is not enough. See id. at 750 (“[T]he jury charge [on ‘contributing factor‘] would not have misled the jury into believing that it could award
damages for a de minimus exposure to asbestos.” (Citation omitted)). Put another way, although Knight and his wife did not have to prove that exposure to asbestos
When the jury in this case considered legal causation, it had to determine not only whether exposure to asbestos at the Waycross facility contributed in some way to Knight developing mesothelioma, but also whether the extent of that contribution was something more than de minimis. Although Knight and his wife may well have presented evidence of more than a de minimis exposure at the Waycross facility, Sсapa presented evidence to the contrary. Whether Scapa exposed Knight to any asbestos beyond background — and if so, whether that exposure was anything more than de minimis — was seriously disputed at trial. It was, of course, the prerogative and responsibility of the jury to resolve these disputed questions of fact, and for all we know, perhaps the jury found that Scapa exposed Knight to substantial asbestos. But by his testimоny, Dr. Abraham essentially told the jury that it was unnecessary to resolve the extent of exposure at the Waycross facility — if the jury determined that Knight was exposed at the facility to any asbestos beyond background, that exposure contributed to his cumulative exposure, and according to Dr. Abraham, it was, therefore, a contributing cause of the mesothelioma. Such testimony does not “fit” the issue that the jury was charged with deciding, and it could not have been helpful to the jury.
That is not to say that expert testimony premised upon a cumulative exposure theory could never be relevant to causation under Georgia law. We suppose, for instance, that if an expert coupled his reliance on the cumulative exposure theory with reliable data sufficient to show that the exposure in question were more than de minimis — and if the expert qualified his ultimate opinion as to causation, conditioning it upon there having been more than a de
minimis exposure — the opinion then might “fit” the pertinent causation inquiry, notwithstanding that the extent of exposure is disputed. In that instance, the jury would have to resolve the extent of the exposure, and if the jury accepted that the exposure was as significant as the data of the expert suggested, it then could accеpt his opinion as to causation. But in this case, Dr. Abraham did not undertake to estimate the extent of exposure in any meaningful way, and he did not qualify his opinion on causation by limiting it to such estimate of exposure.
Courts throughout the country have recognized the importance of such a qualification for the admissibility of expert testimony based on a theory of cumulative exposure, admitting such testimony when it is based on reliаble data sufficient to show the requisite exposure, and rejecting such testimony when it is not.9 See, e.g., Schwartz v. Honeywell Intl., Inc., 66 NE3d 118 (Ohio App. 2016) (noting that courts “have distinguished testimony suggesting a de minimis exposure to asbestos could cause mesothelioma from testimony that each significant exposure to asbestos could be a cause“); Robertson v. Doug Ashy Bldg. Materials, Inc., 168 S3d 556, 578-579 (La. App. 2014) (testimony admissible where expert “did a qualitative assessment of Mr. Robertson‘s exposures” and limited his opinion on
Anderson v. Ford Motor Co., 2014 U.S. Dist. LEXIS 26337 (Case No. 2:06-CV-741-TS) (D. Utah 2014). Even though Dr. Abraham in this case may have spoken of the extent to which Knight could have been exposed to asbestos by Scapa (as well as studies showing increased risk at certain exposure levels), Dr. Abraham did not cast his ultimate opinion on causation (as he presented it to the jury) in those terms. Rather, Dr. Abraham invited the jury to find causation if there was any exposure by Scapa, even if it were only de minimis. Consistent with his opinion that any contribution to cumulative exposure is a cause of mesothelioma, Dr. Abraham told the jury that a causal connection would be lacking only if “there was no asbestos exposure” attributable to Scapa. Dr. Abraham testified that “one fiber [of asbestos] above ambient levels” would be causative for someone who had mesothelioma. He twice said in his testimony that he did not nеed to determine the extent of Knight‘s exposure, but only needed to know that the exposure was more than “zero.” And he testified that, even if someone “gets the disease from a trivial exposure, it‘s still asbestos related.”
Because Dr. Abraham failed to adequately qualify his opinion on causation and condition it upon a reliable estimate of actual exposure, his opinions are not saved by his additional testimony about the hypothetical extent to which Knight might have been exposed to asbestos at the Waycross facility. For all we know, the jury could have disregarded altogether those hypothetical statements about the extent of exposure and still attributed cause to a de minimis exposure by Scapa simply because the jury believed Dr. Abraham when he said that any exposure beyond background would be a contributing cause. As Presiding Judge Andrews noted in his dissent below, “[u]nder Dr. Abraham‘s methodology, any exposure to asbestos, no matter how small, can be characterized as a ‘substantial cause’ because, in his opinion, all exposures contribute to cause mesothelioma.” Scapa Dryer Fabrics, 332 Ga. App. at 102 (Andrews, P. J., dissenting).
In the trial court, the Knights bore the burden to establish not only that Dr. Abraham was qualified and that his testimony was reliable, but also that his testimony would be helpful to the jury. See United States v. Frazier, 387 F3d 1244, 1260 (III) (A) (11th Cir. 2004) (burden is on the party seeking to introduce expert testimony to “establish[ ] qualification, reliability, and helpfulness“). His ultimate opinion as to causation, however, was not limited to any meaningful estimate of exposure to asbestos at the Waycross facility (whether qualitative or quantitative), and it instead invited the jury to find that causation was established by any exposure at all. In that respect, the testimony did not “fit” the pertinent causation inquiry undеr Georgia law, and it should have been excluded by the trial
court, acting as gatekeeper, because it could only serve to confuse the jury on the issue of causation. And given that Dr. Abraham‘s opinion “went to the heart” of the dispute about the extent of exposure and causation, “the erroneous admission of the opinion requires that we reverse the Court of Appeals’ affirmance of the
Judgment reversed. All the Justices concur, except Benham and Hunstein, JJ., who concur in judgment only.
DECIDED JULY 5, 2016.
Duane Morris, William D. Barwick; Hawkins Parnell Thackston & Young, H. Lane Young, M. Elizabeth O‘Neill, Robert B. Gilbreath; J.D. Smith, for appellant.
Buck Law Firm, Robert C. Buck; Kazan, McClain, Satterley & Greenwood, Denyse F. Clancy, for appellees.
Hall Booth Smith, Mark W. Wortham; Crowell & Morning, William Anderson; Bryan Cave, William V. Custer IV; J. Phillip Boston, amici curiae.
BLACKWELL
Justice