By Pamela C. Maloney, J.D.
Asbestos products manufacturers failed to offer competent expert testimony to support apportioning portion of damages for mechanic’s death to malpractice by his doctors.
Expert testimony proffered by manufacturers of asbestos products failed to satisfy the reasonable degree of medical certainty causation standard and, therefore, the doctors who had treated a mechanic for lung cancer allegedly caused by exposure to asbestos could not be added to the jury verdict form for purposes of apportionment of damages, a Georgia Court of Appeals ruled, affirming the widow’s motion for summary judgment on this issue (Pneumo Abex, LLC v. Long, October 6, 2020, Dillard, S.).
In the course of his 22-year employment as a truck and automobile mechanic, the decedent had performed numerous brake, clutch, and gasket replacements using equipment and materials that contained asbestos. In 2014, the decedent was diagnosed with pulmonary adenocarcinoma, a form of lung cancer. According to one of his treating physicians, the decedent’s exposure to asbestos in the course of his work had been a substantial contributing cause to his illness. The decedent and his wife filed a negligence complaint against numerous asbestos products manufacturers, alleging that his lung cancer was a direct result of exposure to asbestos contained in their products. The trial court granted the widow’s motion for summary judgment, finding that: (1) the asbestos products manufacturers’ theory that alternative carcinogens, such as exposure to second-hand smoke, radon, or diesel exhaust, had caused the decedent’s illness was not supported by expert testimony; and (2) testimony by the manufacturers’ expert regarding medical malpractice as a cause of the decedent’s injuries did not meet the reasonable degree of medical certainty causation standard required by the apportionment statute. On appeal, the court only addressed the lower court’s ruling on the asbestos defendants’ "non-party fault defense," explaining that the arguments raised with respect to the defense of alternative carcinogens did not relate to matters that were ruled on by the lower court.
Medical causation. The asbestos products manufacturers had asserted a "non-party fault defense," alleging that the decedent’s treating physicians should be included on the verdict form for purposes of apportionment because they committed the tort of medical malpractice, which contributed to the decedent’s injuries. To support this defense, the asbestos defendants submitted an affidavit by an expert who stated that the failure of the decedent’s treating physicians to treat him with tyrosine kinasc inhibitors (TKIs) until two years after his diagnosis deprived him of the potential benefits of early TKI treatment and probably contributed to his pain and suffering, as well as a decrease in his quality of life. However, the expert never had the opportunity to review the decedent’s complete medical records and had reserved the right to supplement his opinion if more records were received. In addition, his conclusion that, at the time of the decedent’s diagnosis, cancer specialist only considered the possibility of administering TKI treatments in addition to chemotherapy did not indicate how often TKI treatments actually were administered in these cases. Furthermore, the expert never saw the CT scan taken after the decedent received TKI treatments and, thus, he had no first-hand knowledge as to whether the decedent benefitted from the treatment. Finally, the expert failed to specify the type of pain and suffering that the TKI treatments would have reduced or the percentage of likelihood that they would have reduced the decedent’s pain or could have prevented his death.
Based on a review of the expert’s testimony, the court of appeals concluded that his medical testimony was too vague to rise to the kind of reasonable degree of medical certainty or probability that would establish causation for a medical malpractice claim. As a result, the asbestos products manufacturers failed to present competent evidence that the decedent’s doctors had committed malpractice and, therefore, the court of appeals affirmed the trial court’s finding that the treating physicians should not be included on the verdict form for apportionment of fault and its grant of partial summary judgment in favor of the widow on this issue.
The case is No. A20A1442.
Attorneys: Holly Ann Hempel (Nelson Mullins Riley & Scarborough LLP) for Pneumo Abex, LLC. Kurt G. Kastorf (Kastorf Law, LLC) for Sheila Long.
Companies: Pneumo Abex, LLC
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