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Davis v. John Crane, Inc.

Court of Appeals of Georgia, Fourth Division

October 29, 2019

DAVIS et al.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE

         In this consolidated appeal, we consider whether Leisa Davis, [1] presented sufficient evidence to create an issue of fact that her deceased husband, John F. Davis ("Davis"), was exposed to asbestos-containing products manufactured by John Crane, Inc. ("John Crane") and FMC Corporation ("FMC) during his employment at a fiberboard mill.

         These appeals proceed from the trial court's grant of summary judgment in favor of John Crane and FMC in an asbestos-related personal injury and wrongful death action. In Case No. A19A1137, we conclude that the record raises factual questions that preclude summary judgment, and we therefore reverse the order of the trial court. In Case No. A19A1138, finding no error, we affirm the trial court's order.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. To win summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Although the plaintiff is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative. We review a grant of summary judgment de novo.

(Citations and punctuation omitted.) Hoffman v. AC&S, Inc., 248 Ga.App. 608, 610 (2) (548 S.E.2d 379) (2001).

         So viewed, the record reflects that Davis worked at the Louisiana Pacific Corporation fiberboard mill ("Louisiana Pacific" or "the mill") in Alabama from 1984 to 1998. He was initially hired as a laborer, then became a boiler operator the following year, and remained in that position for three to four years before moving to another position. As a laborer, Davis swept up dust and debris around the mill and assisted in the removal of gaskets on the mill's boilers. As a boiler operator, he installed and removed gaskets and packing material on the boilers and related pumps and valves. He accomplished this task by scraping and grinding off old gaskets and packing material, and applying fresh material in its place. As a result, dust was discharged that would pile up on Davis's arms and body. In carrying out this task, Davis testified that he used John Crane asbestos-containing gasket and packing material, and that he replaced asbestos-containing gasket and packing material on two boiler feedwater pumps manufactured by Peerless Pumps ("Peerless"), a business formerly owned by FMC.

         Davis was eventually promoted to maintenance supervisor, a position he held until he terminated his employment with Louisiana Pacific. As a maintenance man, Davis worked on all forms of equipment throughout the plant, in addition to the boiler area. In 2015, Davis was diagnosed with malignant mesothelioma and died that same year.

         Shortly before his death, Davis and Appellant filed their complaint, naming twenty-two corporate entities as defendants, [2] and bringing claims for negligence, negligent product liability, loss of consortium, and punitive damages. Following Davis's death, Appellant amended the complaint to remove Davis as a plaintiff and to add a claim for wrongful death. The parties agreed to bifurcate the issues before the trial court and, at the time of the appeals, the case had not proceeded beyond the issue of product identification, i.e., whether the products that allegedly caused Davis's injuries were manufactured or supplied by a particular defendant. See Hoffman, 248 Ga.App. at 610-611 (2); Williams v. Flintkote Co., 256 Ga.App. 205, 206 (2) (a) (568 S.E.2d 106) (2002).

         John Crane and FMC moved for summary judgment, arguing that Appellant failed to establish proximate causation because she did not show that Davis was exposed to their asbestos-containing products during his employment at the mill. The trial court granted summary judgment to both defendants. These appeals followed.

         Case No. A19A1137

         1. In her sole enumeration of error, Appellant contends that summary judgment was improper because she met her burden by showing her husband was exposed to asbestos-containing products manufactured by John Crane while working at the mill. We agree.

         In Georgia, product identification is a necessary element of an asbestos tort claim. "[T]he threshold for every theory is proof that an injured plaintiff was exposed to asbestos-containing products for which the defendant is responsible." Hoffman, 248 Ga.App. at 611 (2) 548 S.E.2d 379, 382 (2001), citing Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir. 1985). This rule coincides with the general requirement that a plaintiff establish proximate causation as a necessary element of a tort claim. See id. at 610 (2) ("unless the manufacturer's defective product can be shown to be the proximate cause of the injuries there can be no recovery.") (citation and punctuation omitted). Thus,

[t]o survive summary judgment, the appellant needed to present evidence that [John Crane's] asbestos-containing product was used at [Louisiana Pacific] and that [Davis] was in proximity to that product at the time it was being used. A plaintiff may testify to this information from personal knowledge; he may also meet this burden other ways, including by offering the testimony of a co-worker who can identify the plaintiff by name as having worked with or around a particular defendant's asbestos-containing products.

(Citations and punctuation omitted.) Adamson v. Gen. Elec. Co., 303 Ga.App. 741, 744 (3) (694 S.E.2d 363) (2010); Hoffman, 248 Ga.App. at 610-611 (2).

         In support of her argument, Appellant points to Davis's deposition testimony as well as that of two co-workers. Importantly, Davis, himself, affirmed that he had used John Crane asbestos packing material during his employment at the mill:

Q: And during the time period that you worked at Louisiana-Pacific, did you yourself have occasion to work with different types of John Crane asbestos ...

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