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Ga. Courts Disagree on Constitutionality of Retroactivity Provision in Legislation

October 13, 2005 – Media Coverage

ATLANTA -- Two courts in Georgia have released opposing orders on the constitutionality of a provision relating to retroactivity in the newly enacted asbestos and silica legislation, with one finding the chapter unconstitutional, and the other opining that the plaintiffs had failed to present evidence that their rights are affected under the provision.

The Georgia General Assembly enacted Georgia House Bill 416 to amend tort law in asbestos and silica claims. The legislature included a provision that requires plaintiffs to provide 'prima facieevidence of physical impairment.' The legislature applies to all asbestos and silica claims that were filed after April 12, 2005, and all asbestos and silica claims commenced before the legislation was enacted and have not yet started trial.

Several of the plaintiffs involved in the asbestos lawsuits filed motions claiming that the application of O.C.G.A. § 51-14-1 is unconstitutional.

Cobb County Order

In an Oct. 10 order, Judge Beverly M. Collins of the Cobb County State Court granted a plaintiff's motion challenging the applicability of the new Georgia legislature to an asbestos lawsuit. Odom v. Georgia Pacific, et al., No. 01-A-4938-7 (Ga. State Court, Cobb Cty.).

Plaintiff Kristi Odom objected to the applicability of the legislature, arguing that the chapter cannot be applied retroactively, that it violates Georgia's provisions against laws of special application and that the law in effect when the cause of action arose should apply.

In determining whether the chapter is substantive, the court noted that if a chapter makes a substantive change, 'it cannot be given retroactive effect.'

'In earlier such enactments, however, the legislature erected purely procedural bars, designed not to eliminate all but the very strongest cases, but merely to weed out those cases that should not be in court at all,' the court stated. 'By contrast, the asbestos chapter requires the plaintiffs to meet a burden they have never had to meet before: substantial causation. Such a requirement has the potential effect of divesting parties of entire causes of action.'

The court noted that the chapter the plaintiff challenges allows defendants to not only object to an expert witnesses' qualifications, but the opinions they offer.

'Such challenges would require the courts to make evidentiary decisions in determining whose doctor is right, rather than simply finding that the qualifications set forth in the chapter have been satisfied,' the court opined. 'This type of decision is properly reserved for finders of fact, who determine issues of credibility and believability at trial, not for courts to determine as a threshold matter.'

'Furthermore, when applied to plaintiffs for whom asbestos was merely a contributing cause, rather than a substantial cause, the chapter has the effect of divesting them of any right to sue at all,' the court continued. 'Before the statute was enacted, these plaintiffs had a cause of action; now they do not. Such a divestiture, acting retroactively, is improper.'

The court further opined that by enacting the chapter, the legislature may have eliminated valid lawsuits.

'Thus, the Court finds that the chapter operates substantively, rather than procedurally,' the order states. 'Whereas substantive laws may not act retrospectively, the chapter is not applicable to the cases before this court.'

The Court also found that the chapter does not constitute a special law, and that 'general legislation already exists to cover negligence cases, and the classification of asbestos and silica cases is unreasonable. The chapter is therefore an unconstitutional special law.'

Finally, the court found that the chapter violates fundamental due process rights, stating that the chapter does not serve a compelling state interest.

'First, the court is not convinced that excluding all plaintiffs except those who can show substantial causation, rather than the ordinary causation required at trial, but who were unquestionably harmed by asbestos, is a compelling state interest,' the court concluded. 'Second, if we assume the legislature only wished to exclude frivolous suits, the statute is not narrowly tailored to serve that interest. Instead, it wipes the field of litigation clean of all but the very strongest cases. Our legal system was not intended to be so one-sided.'

In a separate order, several other judges in Cobb County on Oct. 10 released an order stating that OCGA 51-14 can also not be applied in 29 consolidated asbestos cases because its retroactivity is unconstitutional.

'The requirement that the exposure be a 'substantial' contributing factor in causing plaintiff's medical condition establishes a new element to plaintiff's claim, one that did not exist when the original cause of action accrued in this case,' an order signed by Judges Russell Carlisle, Irma B. Glover, David P. Darden and Toby Prodgers states. 'At the time plaintiff's claim vested in this case, liability would attach if the asbestos exposure were in fact a mere contributing cause of the medical condition; that is, liability would attach even if the exposure were not in fact a substantial contributing cause. Because OCGA Ch. 51-14 would add such an element to an accrued and vested claim, the statute cannot be constitutionally applied in this case.'

A third order released signed by Judges Melodie H. Clayton and Kathryn J. Tanksley of the Cobb County State Court found that the provision could not constitutionally be applied to 16 additional cases.

Fulton County Order

Judge Doris L. Downs of the Fulton County Superior Court on Oct. 10 released her order denying the plaintiffs challenges to the constitutionality of the provision. In re: All Asbestos Related Person Injury or Death Cases Filed by Baron & Budd P.C. or to be filed by Baron & Budd in Fulton County, Georgia, No. 1998CV02684 (Ga. Super. Ct., Fulton Cty.).

The plaintiffs claimed in their motion that they are not required to comply with the prima-facieevidence requirement because of Georgia's choice of law provisions and because chapter's retroactivity violates Georgia's preclusion against ex post facto laws.

However, unlike the Cobb County orders, Judge Downs found that the chapter is procedural, not substantive.

'This Court finds that, but for the exception regarding the prima facie evidence required for exposed persons suffering from nonmalignant diseases outlined below, the prima-facie evidence requirement outlined in the Asbestos Act merely establishes a method by which parties with asbestos-related claims may commence or maintain their actions in Georgia and, thus, is procedural,' the court stated.

Judge Downs went on to state that the evidence requirement simply requires the plaintiffs to produce evidence at an earlier stage in the litigation.

However, Judge Downs specified that her denial of the plaintiff's motion was not because she found the provision procedural, but 'because the plaintiffs have failed to provide the court with the tools necessary to adjudicate whether these provisions impermissibly alter the vested rights of certain Plaintiffs.'

'The Court has considered the parties' general arguments about disease, symptoms, lack of symptoms, injury and lack of injury, in attempting to determine precisely when, under prior law, a cause of action arose for someone diagnosed with a nonmalignant, asbestos-related disease,' Judge Downs stated. 'However, the Court finds these arguments are so imprecise as to be meaningless without additional factual and medical evidence. Accordingly, the Court is unable to make a blanket ruling that a vested cause of action existed for any plaintiff diagnosed with a nonmalignant, asbestos-related disease prior to the enactment of the Asbestos Act.'

Counsel for the defendants in Odom are Robert A. Barnaby II of Carter & Ashley in Atlanta; J.D. Dalbey of Chilivis, Cochran, Larkins & Bever in Atlanta; K. Marc Barre Jr. of Swift, Currie, McGhee & Hiers in Atlanta; Nancy Karen Deming of Troutman Sanders in Atlanta; Craig E. Brasfield and Richard L. Forman of Forman, Perry, Watkins, Krutz & Tardy in Jackson, Miss.; C. Michael Evert Jr of Evert Weathersby in Atlanta; W. Thomas Causby and Sara S. Turnipseed of Nelson, Mullins, Riley & Scarborough in Columbia, S.C.; Ollie M. Harton, E. Elaine Shofner, and Peter R. York of Hawkins Parnell & Young in Atlanta; Robert D. Hays of King & Spalding in Atlanta; David A. Hughes of Ogletree, Deakins, Nash, Smoak & Stewart in Atlanta; and Kent T. Stair of Carlock, Copeland, Semler & Stair in Atlanta.

Odom is represented by Joycell Hollins of Baron & Budd in Dallas.

Documents Are Available Call (800) 496-4319 or Search Odom Order Ref# ASB-0510-06 Carlisle Order Ref# ASB-0510-07 Fulton County Order Ref# ASB-0510-08 Clayton Order Ref#ASB-0510-09

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