SCAPA DRYER FABRICS, INC.
KNIGHT et al
This opinion is uncorrected and subject to revision by the court.
MCFADDEN, Judge. Barnes, P. J., concurs; Doyle, P. J., Boggs and Ray, JJ., concur in the judgment only in Division 2 and fully otherwise; Andrews, P. J. and Branch, J., dissent.
Scapa Dryer Fabrics, Inc., appeals from the judgment entered on a jury verdict finding that Scapa negligently exposed Roy Knight to a toxic substance, airborne asbestos fibers, and that this exposure was a contributing proximate cause of his development of malignant mesothelioma. Knight and his wife, Milva Knight (claiming loss of consortium), sued Scapa for negligence in product liability and premises liability actions. The Knights claimed that when Knight worked as an independent contractor doing sheet metal work at the Scapa plant in Waycross between 1967 and 1973, he was exposed to airborne asbestos fibers contained in yarn used by Scapa to weave dryer felts at the plant, and to asbestos fibers contained in pipe and boiler insulation that Scapa maintained on the premises, and that these exposures contributed to his development of mesothelioma, diagnosed in 2009.
The Knights also sued Union Carbide Corporation, claiming that Knight's mesothelioma was caused by his exposure to asbestos which Union Carbide had sold to non-party Georgia Pacific, LLC. The Knights alleged that Georgia Pacific had used the asbestos to manufacture a joint compound and that Knight was exposed to the asbestos during drywall installation at his house between 1973 and 1975.
During the trial on these claims, the jury considered evidence that Knight was also exposed during his life to asbestos fibers contained in multiple other products and considered whether 29 additional non-party entities associated with these products were at fault for Knight's development of mesothelioma, as provided in OCGA § 51-12-33 (c). The jury found that Knight's mesothelioma was proximately caused in part by the negligence of defendants Scapa and Union Carbide, and in part by the negligence of non-party Georgia Pacific. Pursuant to OCGA § 51-12-33 (c), the jury assessed percentages of fault as follows: 40 percent to Scapa; 40 percent to Union Carbide; and 20 percent to Georgia Pacific. Based on the jury verdict assessing 40 percent of the fault to Scapa, the trial court entered judgment against Scapa in the amount of $4,187,068.95.
On appeal, Scapa challenges the sufficiency of the evidence supporting the jury's verdict of liability, the scientific reliability of an expert witness' testimony, the lack of a hearing prior to the admission of that expert testimony, the jury's failure to allocate fault to other non-parties submitted on the verdict form, and certain jury charge decisions and evidentiary rulings by the trial court. However, there was sufficient evidence to support the verdict, the expert witness' testimony was scientifically reliable, a hearing as to the admissibility of the testimony was not mandatory, the jury was not required to allocate fault to others, and there has been no showing of both harm and error as to any jury charge or evidentiary rulings. Accordingly, we affirm.
1. Sufficiency of the evidence.
Scapa contends that the trial court erred in denying its motion for a directed verdict as to liability because there is no evidence showing that Knight was exposed to asbestos while he worked at the Scapa plant or that Scapa had superior knowledge of the risk. The contention is without merit.
There is a presumption in favor of the validity of verdicts. Therefore, after the rendition of a verdict, every presumption, inference, and all evidence must be construed most favorably toward upholding the verdict. Neither a directed verdict nor a j.n.o.v. can be granted where there is some evidence to support the verdict. Where evidence is in conflict, the grant of such motions is error. Only when there is no evidence to support the verdict can either a directed verdict or j.n.o.v. be granted, because the evidence demands a verdict contrary to that returned by the jury.
Rental Equipment Group v. MACI, LLC, 263 Ga.App. 155, 157 (1) (587 S.E.2d 364) (2003) (citations and punctuation omitted).
Construed in favor of the verdict, the evidence shows that Knight was diagnosed in 2009 with malignant mesothelioma, cancer of the pleural lining of the lungs; that this disease is caused by inhalation of airborne asbestos fibers; and that the disease may occur decades after exposure to asbestos. Contrary to Scapa's contention, there was evidence that Knight was exposed to asbestos during periods from 1967 to 1973 when he worked at the Scapa plant. There was also evidence that, from 1959 through the mid 1980s, Knight was exposed to asbestos while doing work unrelated to Scapa involving multiple asbestos-containing products in sheet metal work, plumbing work, drywall work, automobile clutch and brake work, and roofing and shingling work.
As to asbestos exposure attributable to Scapa, the Knights produced evidence that, while Knight worked at the Scapa plant, he was exposed to airborne asbestos fibers from: (1) asbestos-containing yarn used by Scapa to weave dryer felts at the plant; and (2) asbestos-containing pipe and boiler insulation that he worked around when the insulation was removed. Evidence showed that, between 1967 and 1973, Knight worked at the Scapa plant on " several" or " multiple" occasions as an independent contractor. Knight was present at the Scapa plant in proximity to the weaving looms when the looms were using asbestos-containing yarn to weave dryer felts. During the weaving process, airborne asbestos fibers were scraped off the yarn, and asbestos-containing lint or dust was created in the process. There was evidence that Scapa knew or should have known about the health dangers of asbestos exposure as a result of the weaving process at its plant, but did not warn about the dangers, or take any steps to protect plant workers from the dangers, prior to 1974. Other evidence showed that insulation on piping and boilers at the Scapa plant contained asbestos. Knight worked in proximity to the piping and boiler insulation when the insulation was removed releasing airborne dust from the insulation. The evidence was sufficient to show that asbestos-containing products were used, produced, or maintained at the Scapa plant in a manner which released airborne asbestos fibers, and that Knight was at the plant in proximity to those asbestos fibers when they were released.
Having reviewed all the evidence, we conclude that there was sufficient evidence supporting the jury's finding of liability and therefore " we find no error in the trial court's denial of [Scapa's] motion for a directed verdict on liability." Eco-Clean, Inc. v. Brown, 324 Ga.App. 523, 529 (3) (749 S.E.2d 4) (2013).
2. Expert testimony.
In challenging the sufficiency of the evidence, Scapa further claims that as to the issue of specific causation, the testimony of the Knight's expert, Dr. Jerrold Abraham, is founded on junk science. Consequently, Scapa, maintains, that testimony is inadmissible under the rule adopted for the federal courts in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (113 S.Ct. 2786, 125 L.Ed.2d 469) (1993), and for Georgia -- in civil cases only -- by statute. See former OCGA § 24-9-67.1 (applicable at the time of trial); current OCGA § 24-7-702. The claim is without merit.
In addition to proof that Knight was negligently exposed by Scapa to asbestos, the Knights were required to prove that these exposures caused his mesothelioma. Tort cases alleging negligent exposure to a toxic substance involve two types of causation. First, general causation; " whether a substance is capable of causing a particular injury or condition in the general population." Butler v. Union Carbide Corp., 310 Ga.App. 21, 25 (712 S.E.2d 537) (2011). Second, specific causation; " whether a substance caused a particular individual's injury." Id.
However, where, as here, the plaintiff has multiple exposures to asbestos involving multiple defendants, our Supreme Court has held that the plaintiff need not prove that " each individual tortfeasor's conduct constitutes a 'substantial' contributing factor in the injury." John Crane, Inc. v. Jones, 278 Ga. 747, 747 (604 S.E.2d 822) (2004). Because " Georgia law clearly contemplates differing degrees of culpability among joint tortfeasors," 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." Id. at 748. In so holding, the court suggested in strongly-worded dicta that a de minimis exposure is not sufficient. Id. at 750 (" the jury charge at issue would not have misled the jury into believing that it could award damages for a de minimis exposure to asbestos" ). But this is not a de minimis exposure case. Scapa was responsible for considerably more than de minimis exposure. As the testimony of Dr. Abraham established, the exposures for which Scapa is responsible were " substantial causes" of Knight's mesothelioma, and the jury indeed found Scapa substantially liable in the amount of 40 percent.
Under Daubert, trial judges are assigned a gatekeeping role to " ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 597; accord former OCGA § 24-9-67.1 (b). The burden of establishing reliability rests on the proponent of the expert opinion and must be established by a preponderance of the evidence. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Admission or exclusion of the expert testimony is within the " broad discretion" of the trial court. Meacham v. Franklin-Heard County Water Auth., 302 Ga.App. 69, 76 (690 S.E.2d 186) (2009). To test for reliability under Daubert, courts assess the validity of the expert's methodology, not the conclusions generated, by considering several factors, none of which is necessarily dispositive -- whether the method or theory relied on has been tested; whether it has been the subject of peer review; whether the theory has a known or potential error rate; and whether the theory has gained general acceptance in the scientific community. Daubert, 509 U.S. at 592-594.
The dissent adopts Scapa's Daubert argument, claiming that in Butler v. Union Carbide Corp., 310 Ga.App. 21 (712 S.E.2d 537) (2011), " the methodology underlying [Dr. Abraham's] 'any exposure' opinion (also known as the 'no threshold' or 'linear non-threshold' models for causation) was rejected as not testable, scientifically unreliable, and not the product of reliable principles and methods under OCGA § 24-9-67.1 (b)." Dr. Abraham's offending opinion, the dissent summarizes, is that " every exposure to asbestos that Mr. Knight experienced at the Scapa plant was a contributing cause of his mesothelioma. ... [and] that, since Mr. Knight's exposure to asbestos at the Scapa plant was more than zero, that exposure was a contributing cause of his mesothelioma."
However, there are a number of things wrong with the dissent's analysis. For one thing, our decision in Butler affirmed a trial court's exercise of his discretion. The dissent acknowledges this fact, but passes over its significance. " The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the trial court, and consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion." Carter v. Smith, 294 Ga.App. 590, 591 (1) (669 S.E.2d 425) (2008) (punctuation and footnote omitted). Here, the dissent would have us reverse the trial court's appropriate exercise of that discretion.
More particularly, as noted above, Butler was a de minimis exposure case. The defendant in that case had been responsible for less than one percent of Butler's cumulative asbestos exposure and had exposed him to the less potent form of asbestos. Butler, supra, 310 Ga.App. at 22. The excluded opinion in that case was, " To the extent that the patient was exposed to any of these products, they contributed in a cumulative fashion to his total asbestos dose, which is what caused his mesothelioma." Butler, supra, 310 Ga.App. at 23.
Unlike Butler, however, this is a substantial exposure case. Dr. Abraham's opinion about the exposure at issue in this case was offered in response to a hypothetical that corresponds to the facts set out above in Division 1, detailing Knight's asbestos exposure attributable to Scapa. The Knights counsel posed the following hypothetical questions to the expert witness:
Q. And I want you to assume for these hypotheticals that Roy Knight was employed at times between 1967 and 1972 doing sheet metal work in a textile mill making textiles with asbestos-containing yarn. Okay?
A. All right.
Q. And I want you to assume that during some of the times, but not all of them, that Roy Knight was at the textile mill that there were weaving operations going on. Okay?
Q. And I want you to assume that at least on two separate occasions Mr. Knight disturbed thick settled dust in the textile mill that was gray in color which he associated with the yarns being used in the mill. Okay?
A. All right.
Q. And I want you to further assume that at other times in the textile mill using asbestos, that Mr. Knight observed screens in ...