By Kathleen Kennedy-Luczak, J.D.
The cumulative exposure theory testimony of an expert witness was erroneously admitted at trial where it failed to satisfy the legal standard for causation in an asbestos exposure case brought against a dryer felt manufacturer, the Supreme Court of Georgia has ruled in reversing a Georgia Court of Appeals judgment. Although expert testimony based on a cumulative exposure theory could potentially be relevant to causation under Georgia law, the expert here failed to show that the exposure to asbestos was more than de minimis (Scapa Dryer Fabrics, Inc. v. Knight, July 5, 2016, Blackwell, K.).
A former sheet metal worker and his wife (claiming loss of consortium), sued Scapa Dryer Fabrics, Inc. (Scapa), a manufacturer and supplier of dryer felts, for negligence in product liability and premises liability actions. The worker claimed that when working as an independent contractor doing sheet metal work at Scapa’s plant between 1967 and 1973, he was exposed to airborne asbestos fibers contained in yarn used by Scapa to weave dryer felts at the plant, as well as to asbestos fibers contained in pipe and boiler insulation that Scapa maintained on the premises. It was these exposures, the worker asserted, that contributed to his development of mesothelioma, which was diagnosed in 2009.
Lower court ruling. Scapa appealed a $4.2 million jury verdict finding that Scapa negligently exposed the worker to airborne asbestos fibers and that this exposure was a contributing proximate cause of his development of malignant mesothelioma. The appellate court found that the trial court did not err in its evidentiary, expert testimony and jury charge rulings, and that the evidence was sufficient to support the jury’s finding of liability against the manufacturer (seeProducts Liability Law Daily’s March 31, 2015 analysis). The Georgia Supreme Court granted review only with respect to the admission of the testimony of a pathologist whose opinion was proffered by the worker to demonstrate causation.
Theory of cumulative exposure. At trial, the expert opined that if the worker was exposed to asbestos while working at Scapa’s facility, that exposure was a contributing cause of the mesothelioma, regardless of the extent of the exposure. Scapa argued at trial and on appeal that this theory of cumulative exposure was not reliable, did not comport with the legal requirements for causation in Georgia, and an expert opinion derived from such a theory is inadmissible.
Admissibility of expert testimony. In order for expert testimony to be admissible under the applicable Georgia statute, a trial court must assess three aspects of the proposed testimony, the qualifications of the expert, and the reliability and relevance of the proposed testimony. Here, Scapa did not dispute that the witness was qualified to give expert testimony. Rather, Scapa disputed the reliability of the testimony based on the cumulative exposure theory and the relevance of such testimony, arguing that it did not fit the specific causation requirement as set forth by Georgia law.
Causation. In order to prove causation against Scapa under Georgia law, the worker was required to show that the exposure to asbestos at its facility was a contributing factor in bringing about the mesothelioma. Further, although the worker did not have to show that the amount of exposure at the Scapa plant made a substantial contribution to the mesothelioma, he did have to show it made a meaningful contribution. Thus, only a de minimis contribution would not be sufficient to establish legal causation in Georgia.
Testimony not helpful to jury. When the jury considered causation, it had to determine whether the extent of the worker’s exposure to asbestos was more than a de minimis contribution to his developing mesothelioma. Yet, the expert essentially told the jury that it was unnecessary to resolve the extent of the asbestos exposure at Scapa’s facility, only that the worker was exposed to anything beyond background exposure. The court found that such testimony did not fit the issue of causation that the jury was deciding and, therefore, could not have been helpful. The court noted that the expert did not estimate the extent of the exposure in any meaningful way or provide any reasonable estimate of actual exposure. Therefore, the jury was open to potentially find causation if there was only a de minimis amount of exposure.
Because the expert’s testimony invited the jury to establish causation by any exposure at all, the testimony did not fit the causation requirement under Georgia law. The expert testimony should have been excluded by the trial court.
The judgment of the appellate court was reversed.
The case is No. S15G1278.
Attorneys: M. Elizabeth O'Neill (Hawkins Parnell Thackston & Young, LLP) for Scapa Dryer Fabrics, Inc. Robert Cape Buck (Buck Law Firm) for Roy Knight.
Companies: Scapa Dryer Fabrics, Inc.
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