Peter  R.  York
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Georgia High Court to Review Constitutionality of Asbestos Legislation

December 12, 2005 – Media Coverage
HarrisMartin

ATLANTA -- The Georgia Supreme Court will review the constitutionality of the state's newly enacted asbestos and silica legislation, just months after trial courts released orders reflecting opposing interpretations of the law. Georgia-Pacific v. Mitchell, No. S06I0364; Georgia-Pacific v. Odom, No. S06I0365; Aerofin Corp. v. Hasberry, No. S06I0366; Aerofin Corp., v. Estress, No. S06I0367; Aerofin Corp. v. Hall, No. S06I0368 (Ga. Sup. Ct.).

In a Dec. 6 order, the state's high court accepted five petitions for interlocutory appeal, and specifically requested that the parties present arguments regarding the constitutionality of OCGA § 51-14-1, a chapter dealing with retroactive application.

The order comes after two courts in Georgia released opposing orders on the constitutionality of the retroactivity provision, with one finding that the chapter was unconstitutional, and the other opining that the plaintiffs 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 facie evidence 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.

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

'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.

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

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 www.harrismartin.com Sup. Ct. Order Ref# ASB-0512-02

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