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Ga. Supreme Court Reverses $4 Million Asbestos Verdict, Rejects ‘Each and Every’ Exposure Testimony

July 6, 2016 – Media Coverage
HarrisMartin

ATLANTA –– The Georgia Supreme Court has reversed an intermediate appellate court order affirming a $4 million verdict entered against Scapa Dryer Fabrics Inc., saying that the “each and every” exposure testimony proffered by Dr. Jerrold Abraham did not fit the pertinent causation inquiry under Georgia law.

In the July 5 opinion, the high court found that the plaintiff’s expert “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.”

The plaintiffs asserted that Roy Knight was exposed to airborne asbestos fibers while working as an independent contractor doing sheet metal work at a Scapa Dryer Felt plant. Knight specifically alleged that he was exposed to asbestos fibers in yarn used by the defendant to weave dryer felts at the plant. Additionally, the plaintiffs said, the pipe and boiler insulation on the premises contained asbestos.

Knight said he developed mesothelioma as a result of the exposure.

At trial, the plaintiffs also presented evidence that Knight was exposed to asbestos in joint compound products manufactured by Union Carbide Corp.

A jury agreed, concluding that the plaintiff’s mesothelioma was proximately caused in part by Scapa, Union Carbide and by non-party Georgia-Pacific. Jurors allocated 40 percent liability to Scapa, 40 percent to Union Carbide and 20 percent to Georgia-Pacific.

The jury awarded a total of $10.5 million: $500,000 for medical expenses, $7 million for pain and suffering and $3 million for loss of consortium. The trial court entered a judgment of $4,187,068.95 against Scapa. For more on the verdict, see the July 2010 issue of COLUMNS-Asbestos.

Scapa appealed the judgment, in part arguing that the trial court erred by admitting the testimony of Dr. Jerrold Abraham, a pathologist who opined that if Knight was exposed to asbestos at the plant, this exposure was a caused of his mesothelioma, regardless of the dose.

The defendant maintained that theories of cumulative exposure are not reliable in a scientific sense and is inadmissible.

The appellate court disagreed, however, saying that the state’s Supreme Court has held that a plaintiff does not need to prove that each individual tortfeasor’s conduct constitutes a “substantial contributing factor in the injury.”

“…[A] plaintiff in such a case can establish proximate cause by proving that ‘the individual defendant’s tortious conduct had [been] a contributing factor in bringing about the plaintiff’s damages,’” the court said.

In reaching this conclusion, the appellate court specifically took issue with the dissenting opinion, which argued that Abraham’s “any exposure” opinion should have been rejected as not testable and scientifically unreliable.

“[S]aying there is no known safe threshold is very difference from saying there is no safe threshold,” the appellate court pointed out. “Moreover, Dr. Abraham’s opinion that there is no known safe threshold is not controversial. Scapa’s expert, Dr. Victor Roggli, agreed: ‘each and every exposure that an individual with mesothelioma experiences in excess of background level is a substantial contributing factor in the development of the disease.’”

In a Sept. 8, 2015 order, the Supreme Court granted a writ of certiorari, agreeing to weigh in on the “each and every” exposure testimony dispute.

In doing so, the high court acknowledged that Abraham has adequate credentials to qualify him as an expert.

His cumulative exposure theory, however, does not fit the legal standard for causation, the Supreme Court held.

“…[A]lthough Knight and his wife did not have to prove that exposure to asbestos at the Waycross facility made a substantial contribution to his mesothelioma, they did have to show that it made a meaningful contribution,” the court said.

Ultimately, the court ruled, a de minimis contribution to any injury is insufficient under Georgia law.

“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,” the court explained. “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 testimony, 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 his 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.”

The Supreme Court did caution that its decision did not mean that cumulative exposure theories could never be relevant under Georgia law; opinions that combined cumulative exposure theories with reliable data demonstrating to show that exposure in question was more than de minimis might fit the causation inquiry, the court explained.

The plaintiffs were represented at trial by Christian Hartley of HartleyLaw, LLC in Mt. Pleasant, S.C.; and Robert Buck of the Buck Law Firm in Atlanta.

Scapa was represented at trial by Rob Gilbreath of Hawkins Parnell & Young.

Scapa Dryer Fabrics Inc. v. Knight, et al., No. S15G1278 (Ga. Sup. Ct.).

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-1607-01

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