Butler v. Union Carbide Corp...

Citation310 Ga.App. 21,712 S.E.2d 537
Decision Date17 October 2011
Docket NumberNo. A11A0481.,A11A0481.
CourtUnited States Court of Appeals (Georgia)

310 Ga.App. 21
712 S.E.2d 537
11 FCDR 1833

BUTLER et al.

No. A11A0481.

Court of Appeals of Georgia.

June 15, 2011.Certiorari Denied Oct. 17, 2011.

[712 S.E.2d 538]

Hurt, Stolz & Cromwell, James E. Carter, Savannah, Water & Kraus, Scott Leonard Frost, for appellants.Hawkins, Parnell, Thackston & Young, Erin Elaine Shofner, Elisabeth Maynette Cheatham, Allison & Bird, Allison Stephens Thompson, James Charles Grant, Atlanta, for Appellee.MIKELL, Judge.

[310 Ga.App. 21] This is a toxic tort case involving product liability, negligence, and loss of consortium claims maintained by Laura Butler, individually and as administratrix of the estate of her late husband, Walter Butler,1 against Union Carbide Corporation and 16 other companies. 2 THE COMPLAINT ALLEges that mr. butler develoPed Malignant mesothelioma due to his occupational exposure to products containing asbestos manufactured or sold by the defendants.

Before he died, Mr. Butler retained Dr. John C. Maddox, a pathologist, as his expert on specific causation; that is, whether asbestos from a Union Carbide product contributed to causing Butler's mesothelioma.3 Maddox deposed that each exposure to asbestos above “background” levels, or those present

[712 S.E.2d 539]

in ambient air, contributed to causing the disease. A since-dismissed defendant, Reichhold, Inc., moved to strike Maddox's testimony, and Union Carbide joined the motion. After holding a hearing pursuant to [310 Ga.App. 22] Daubert v. Merrill Dow Pharmaceuticals, Inc.,4 the trial court issued an extensively researched order 5 granting Union Carbide's motion. The trial court issued a separate order granting summary judgment to Union Carbide. Mrs. Butler appeals these orders. For the reasons that follow, we affirm.


Mr. Butler was exposed to products containing asbestos from 1965 to 1973, when he worked at a company in Madison, then called Watertown Manufacturing, which made plastic handles for various household items. Mr. Butler was the “preforming” operator; it was his job to use a granulated, phenolic molding compound to make solid pellets of different sizes and weights. The pellets were then transferred to a press operator, who turned the pellets into plastic handles. Mr. Butler deposed that he used 50 to 100 bags of the molding compound daily; that each bag weighed 50 pounds; and that 15 to 20 times daily, he slit open the bags and poured the compound into a hopper that sat atop the preform machine, causing him to breathe in visible dust created by dumping the bags.

Mr. Butler identified Union Carbide as one of nine brands of molding compound that he recalled using on the job, although he testified that he mostly used products manufactured by Reichhold or Durez. A co-worker testified that he recalled using “bakelite,” which is the trade name for Union Carbide's product. Two other co-workers testified that they did not recall ever using a compound manufactured by Union Carbide.

Dr. Dennis Paustenbach, a toxicologist, reviewed Union Carbide's sales records during the relevant years and testified that Union Carbide sold 135,100 pounds of molding compound to Watertown, comprised of 45,650 pounds of heat-resistant product containing chrysotile asbestos and 89,450 pounds of general purpose material containing two to three percent asbestos. A representative of Union Carbide, Carlos Martino, testified that the heat-resistant product contained 15 to 30 percent chrysotile asbestos. Dr. Paustenbach testified that the 135,100 pounds of Union Carbide product comprised one percent or less of the total number of pounds handled by Mr. Butler while he worked at Watertown. He also testified that the total amount of time Mr. Butler could have been exposed to the chrysotile material during his career was eight days.

A certified industrial hygienist, William M. Ewing, testified that [310 Ga.App. 23] Mr. Butler's exposure to asbestos from a Union Carbide molding compound was more than two fibers per cubic centimeter “on an eight hour time weighted average basis.” 6

In 2007, Dr. Maddox reviewed Mr. Butler's medical reports and concluded, to a reasonable degree of medical certainty, that his cumulative exposure to asbestos caused his mesothelioma. Dr. Maddox was deposed on August 25, 2009. When asked whether he would offer an opinion that attributed causation to any specific company's products, Dr. Maddox testified as follows: “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.” Dr. Maddox concluded that each exposure to asbestos above background level is a substantial contributing factor to causing mesothelioma, although he qualified his conclusion by explaining that “amphibole types are more potent that chrysotile.” According to Dr. Maddox, Mr. Butler's testimony as to dust inhalation

[712 S.E.2d 540]

evidenced a substantial and significant exposure to asbestos, sufficient to cause mesothelioma.

In November 2009, Union Carbide joined co-defendant Reichhold's motion to strike Dr. Maddox's testimony that Mr. Butler's disease could be attributed to its product. The trial court granted the motion with respect to Reichhold but reserved ruling as to Union Carbide and requested additional briefing. Mrs. Butler moved for reconsideration and submitted in support thereof an eight-page affidavit from Dr. Maddox, dated January 26, 2010. In the affidavit, Dr. Maddox offered, for the first time, scientific support for his opinions, specifically “the capability of chrysotile asbestos to cause mesothelioma.” Dr. Maddox concluded that although the amount of Union Carbide products used at Watertown “may have been a small percentage of the overall amounts of phenolic molding compounds utilized at the facility, the amount of asbestos exposure that Mr. Butler had from this product would have been a significant contributing factor to the development of his mesothelioma and death.”

The Daubert hearing was held on March 31, 2010. Dr. Maddox testified that each and every exposure to asbestos above background levels contributes to the development of mesothelioma. Dr. Maddox testified that “exposure to a genotoxic substance ... [is] considered [310 Ga.App. 24] a no-threshold exposure” and must be counted as a causative factor.

The Trial Court's Order Striking Dr. Maddox's Opinion (Appendix)

The trial court concluded that Dr. Maddox “has not properly utilized the scientific method to make scientifically valid decisions in reaching his specific causation opinion as required by Daubert. 7 In reaching this conclusion, the court analyzed Dr. Maddox's testimony by applying the four noninclusive Daubert factors used in determining reliability: “(1) whether the theory or technique can be tested; (2) whether it has been subjected to peer review; (3) whether the technique has a high known or potential rate of error; and (4) whether the theory has attained general acceptance within the scientific community.” 8

The trial court determined that Dr. Maddox's opinion failed the first element because he relied on the theory that any exposure to the asbestos in Union Carbide's product would contribute to the development of mesothelioma, yet he testified that the theory was essentially untestable and had not been tested. The court also reasoned that Dr. Maddox's testimony failed the third element because a nontestable hypothesis ... cannot have an error rate.” 9 The trial court then proceeded to consider the second element, peer review, and concluded, based on Daubert, that it was relevant but not dispositive, and far less crucial than “falsifiability”; i.e., the “testable and tested” and “error rate” elements. Concerning the fourth factor, general acceptance within the scientific community, the trial court stated that Dr. Maddox's opinion relied heavily on this factor and that any general acceptance shown for his opinion was far outweighed by its lack of scientific validity. Finally, the court found that Dr. Maddox was the “quintessential expert for hire” and, as a result, exercised its discretion “to apply the Daubert factors with greater rigor.” 10 Accordingly, the court ruled that Dr. Maddox's specific causation testimony “fail[ed] the Daubert test for scientific knowledge and therefore [was] not ‘the product of reliable principles and methods' under OCGA § 24–9–67.1(b)(2).” 11

[310 Ga.App. 25] Discussion

1. Initially, we must note the distinction between general causation and specific causation. “General causation is whether a substance is capable of causing a particular injury or condition in the general

[712 S.E.2d 541]

population, while specific causation is whether a substance caused a particular individual's injury.” 12 That occupational exposure to asbestos is capable of causing mesothelioma is not in question.13 At issue in this appeal is the admissibility of expert testimony concerning whether asbestos from a Union Carbide molding compound contributed to causing Mr. Butler's mesothelioma.

“[T]he issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion.” 14 The standard for admissibility of expert testimony is governed by OCGA § 24–9–67.1(b), which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise, if: (1) [t]he testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2)[t]he testimony is the product of reliable principles and methods; and (3)[t]he witness has applied the principles and methods reliably to the facts of the case.

As noted above, the...

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