Pneumo Abex, LLC v. Long, A20A1442

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Dillard, Presiding Judge.
• Citation: 357 Ga.App. 17,849 S.E.2d 746
• Parties: PNEUMO ABEX, LLC, et al. v. Sheila LONG, et al.
• Docket Number: A20A1442
• Decision Date: 06 October 2020

357 Ga.App. 17
849 S.E.2d 746

PNEUMO ABEX, LLC, et al.
v.
Sheila LONG, et al.

A20A1442

Court of Appeals of Georgia.

October 6, 2020
Certiorari Denied May 3, 2021

849 S.E.2d 749

Holly Ann Hempel, Gregory Michael O'Neil, Frances Laura Spinelli, Robyn King Richards, Andrew Alan Davenport, Paul Gunter Williams, Atlanta, Ivan Andrew Gustafson, Bogart, Valentin Leppert, for Appellant.

S. Lester Tate III, Cartersville, Kurt G. Kastorf, Sharon J. Zinns, for Appellee.

Dillard, Presiding Judge.

357 Ga.App. 17

Pneumo Abex, LLC and Genuine Parts Company¹ appeal the trial court's partial grant of summary judgment to Sheila Long—individually and as personal representative of her late husband's estate² —in her toxic-tort action, alleging that Ron died from lung cancer as a result of exposure to asbestos contained in certain products. Long sought summary judgment on affirmative defenses that she anticipated the appellants might pursue. Now, the appellants argue that the trial court erred in granting summary judgment to Long as to their non-party fault defense and on "alternative carcinogens." For the reasons set forth infra , we affirm.

Viewing the evidence in the light most favorable to the appellants (i.e. , the nonmoving parties),³ the record shows that from 1977 until 1999, Ron worked as a truck and automobile mechanic for various companies and then at his own automobile repair shop. During his career, Ron performed numerous

849 S.E.2d 750

brake, clutch, and gasket

357 Ga.App. 18

replacements; and some of the equipment and materials he used in the course of his work were manufactured by the appellants and contained asbestos. On November 11, 2014, Ron was diagnosed with pulmonary adenocarcinoma, a form of lung cancer. According to one of his treating physicians, Ron was exposed to asbestos in the course of his work, and in the doctor's professional opinion, Ron's exposure to asbestos was "a substantial contributing factor in causing his lung cancer."

On September 16, 2016, prior to Ron's death, the Longs filed a negligence complaint against numerous defendants, alleging, inter alia , that Ron's lung cancer was a direct result of exposure to asbestos contained in their products.⁴ Discovery ensued, and over a year later (after Ron died from his lung cancer ), Long filed a motion to substitute herself—in her capacity as the executor of Ron's estate—in place of Ron as a plaintiff. Long also sought to file an amended complaint, which, inter alia , added a wrongful-death claim. The trial court granted both requests, and so, Long proceeded with the case in her individual capacity, as well as in her capacity as executor of Ron's estate.

Thereafter, several parties filed motions for summary judgment. But this appeal concerns Long's motion for partial summary judgment "regarding various affirmative defenses and alternative causation." Specifically, Long argued that, during discovery, the appellants attempted to "assign liability" for Ron's lung cancer to other causes, such as exposure to second-hand smoke, radon, or diesel exhaust (i.e. , "alternative carcinogens"), but for purposes of apportionment, they failed to satisfy their burden of presenting any competent evidence that Ron was exposed to such alternative carcinogens. Furthermore, Long contended that she had "reason to believe" the appellants intended to assign liability for Ron's death to the alleged medical malpractice of his doctors, who are not parties to this case; but according to Long, there was no evidence that any such malpractice occurred. As a result, Long maintained that she was entitled to summary judgment as to these potential defenses, or, alternatively, the trial court should exclude any evidence related to them.

Following the appellants’ response and Long's reply, which are discussed infra , the trial court ultimately granted Long's motion.⁵

357 Ga.App. 19

As to the issue of alternative carcinogens, the trial court found that no expert witness in the case—either for Long or the appellants—testified that exposure to second-hand smoke, diesel exhaust, or radon could have caused Ron's cancer, and certain arguments they made were inconsistent with the burden of proof required by the apportionment statute. Furthermore, the court found that the affidavit of the appellants’ expert (Dr. Allan Feingold)—in which he detailed his opinion regarding the alleged medical malpractice of Ron's physicians—did not meet the required causation standard of expressing his opinion with "a reasonable degree of medical certainty." Regardless, the court also found that Feingold was not qualified to testify as an expert because he did not have the requisite experience as a practicing medical doctor in the area of concern. Lastly, the court found that any injuries resulting from improper or unskilled medical treatment by a physician were a foreseeable part of the damages resulting from Ron's lung cancer. This appeal from the trial court's partial grant of summary judgment in favor of Long follows.

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."⁶ Furthermore, a de novo standard of review "applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all

849 S.E.2d 751

reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant."⁷ And at the summary-judgment stage, "[w]e do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution."⁸ Nevertheless, if there is no evidence sufficient to "create a genuine issue as to any essential element of [the] plaintiff's claim, that claim tumbles like a house of cards[,]" and all other factual disputes are rendered immaterial.⁹ With these guiding principles in mind, we now address the appellants’ specific claims of error.

1. The appellants argue that the trial court erred in granting summary judgment to Long as to their "non[-]party fault defense" that Ron's treating physicians committed malpractice, which contributed to his "injuries or damages." We disagree.

Under OCGA § 51-12-33 (c), "in assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who

357 Ga.App. 20

contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit."¹⁰ Indeed, the statute is designed to apportion damages "among all persons or entities who contributed to the alleged injury or damages—even persons who are not and could not be made parties to the lawsuit[.]"¹¹ But significantly, the fault of a non-party "cannot be considered for the purposes of apportioning damages without some competent evidence that the non[-]party in fact contributed to the alleged injury or damages."¹² Suffice it to say, were it otherwise, there would be "no limitation on the number of potential non[-]parties that a trial court would be required to include on the verdict form for purposes of assessing fault under OCGA § 51-12-33 (c)."¹³

The Supreme Court of Georgia has held that under OCGA § 51-12-33 (c), a person or entity who has contributed to the alleged injury or damages means "all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff."¹⁴ And that includes not only the plaintiff and defendants with liability to the plaintiff, but also "every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of his injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff."¹⁵ Finally, while it is the defendant's burden to establish a "rational basis for apportioning fault to a non-party, whether the non-party contributed to the alleged injury is a question of fact for a jury

849 S.E.2d 752

to decide."¹⁶ So, because the appellants

357 Ga.App. 21

alleged that the non-party tortfeasors—i.e. , Ron's treating physicians—committed the tort of medical malpractice, they can only be included on the verdict form for purposes of apportionment if there is some competent evidence that they did, in fact, commit such malpractice and it proximately caused or contributed to causing Ron's injuries and damages.¹⁷

(a) Medical Malpractice. To recover in a medical-malpractice case, a plaintiff must "show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained."¹⁸ Indeed, a mere showing of negligence "without proof of causation is insufficient to withstand summary judgment."¹⁹ Additionally, to meet this burden, the...