Scapa Dryer Fabrics, Inc. v. Knight

• Decision Date: 30 March 2015
• Docket Number: No. A14A1587.,A14A1587.
• Citation: 770 S.E.2d 334,332 Ga.App. 82
• Parties: SCAPA DRYER FABRICS, INC. v. KNIGHT et al.
• Court: Georgia Court of Appeals

332 Ga.App. 82

770 S.E.2d 334

SCAPA DRYER FABRICS, INC.

v.KNIGHT et al.

No. A14A1587.

Court of Appeals of Georgia.

March 30, 2015.

Reconsideration Denied April 14, 2015.

Certiorari Granted Sept. 8, 2015.

Hawkins Parnell Thackston & Young, M. Elizabeth O'Neill, Stephen Christopher Collier, H. Lane Young II, Atlanta, Duane Morris LLC, William D. Barwick, for Appellant.

Buck Law Firm, Robert Cape Buck, Atlanta, for Appellees.

Opinion

McFADDEN, Judge.

Scapa Dryer Fabrics, Inc., appeals from the judgment entered on a jury verdict finding that Scapa negligently exposed Roy Knight to a toxic substance, airborne asbestos fibers, and that this exposure was a contributing proximate cause of his development of malignant mesothelioma

. Knight and his wife, Milva Knight (claiming loss of consortium), sued Scapa for negligence in product liability and premises liability actions. The Knights claimed that when Knight worked as an independent contractor doing sheet metal work at the Scapa plant in Waycross between 1967 and 1973, he was exposed to airborne asbestos fibers contained in yarn used by Scapa to weave dryer felts at the plant, and to asbestos fibers contained in pipe and boiler insulation that Scapa maintained on the premises, and that these exposures contributed to his development of mesothelioma

, diagnosed in 2009.

The Knights also sued Union Carbide Corporation, claiming that Knight's mesothelioma

was caused by his exposure to asbestos which Union Carbide had sold to non-party Georgia Pacific, LLC. The Knights alleged that Georgia Pacific had used the asbestos to manufacture a joint compound and that Knight was exposed to the asbestos during drywall installation at his house between 1973 and 1975.

During the trial on these claims, the jury considered evidence that Knight was also exposed during his life to asbestos fibers contained in multiple other products and considered whether 29 additional non-party entities associated with these products were at fault for Knight's development of mesothelioma

, as provided in OCGA § 51–12–33(c). The jury found that Knight's mesothelioma was proximately caused in part by the negligence of defendants Scapa and Union Carbide, and in part by the negligence of non-party Georgia Pacific. Pursuant to OCGA § 51–12–33(c), the jury assessed percentages of fault as follows: 40 percent to Scapa; 40 percent to Union Carbide; and 20 percent to Georgia Pacific. Based on the jury verdict assessing 40 percent of the fault to Scapa, the trial court entered judgment against Scapa in the amount of $4,187,068.95.

On appeal, Scapa challenges the sufficiency of the evidence supporting the jury's verdict of liability, the scientific reliability of an expert witness' testimony, the lack of a hearing prior to the admission of that expert testimony, the jury's failure to allocate fault to other non-parties submitted on the verdict form, and certain jury charge decisions and evidentiary rulings by the trial court. However, there was sufficient evidence to support the verdict, the expert witness' testimony was scientifically reliable, a hearing as to the admissibility of the testimony was not mandatory, the jury was not required to allocate fault to others, and there has been no showing of both harm and error as to any jury charge or evidentiary rulings. Accordingly, we affirm.

1. Sufficiency of the evidence.

Scapa contends that the trial court erred in denying its motion for a directed verdict as to liability because there is no evidence showing that Knight was exposed to asbestos while he worked at the Scapa plant or that Scapa had superior knowledge of the risk. The contention is without merit.

There is a presumption in favor of the validity of verdicts. Therefore, after the rendition of a verdict, every presumption, inference, and all evidence must be construed most favorably toward upholding the verdict. Neither a directed verdict nor a j.n.o.v. can be granted where there is some evidence to support the verdict. Where evidence is in conflict, the grant of such motions is error. Only when there is no evidence to support the verdict can either a directed verdict or j.n.o.v. be granted, because the evidence demands a verdict contrary to that returned by the jury.

Rental Equipment Group v. MACI, LLC, 263 Ga.App. 155, 157(1), 587 S.E.2d 364 (2003) (citations and punctuation omitted).

Construed in favor of the verdict, the evidence shows that Knight was diagnosed in 2009 with malignant mesothelioma

, cancer of the pleural lining of the lungs; that this disease is caused by inhalation of airborne asbestos fibers; and that the disease may occur decades after exposure to asbestos. Contrary to Scapa's contention, there was evidence that Knight was exposed to asbestos during periods from 1967 to 1973 when he worked at the Scapa plant. There was also evidence that, from 1959 through the mid 1980s, Knight was exposed to asbestos while doing work unrelated to Scapa involving multiple asbestos-containing products in sheet metal work, plumbing work, drywall work, automobile clutch and brake work, and roofing and shingling work.

As to asbestos exposure attributable to Scapa, the Knights produced evidence that, while Knight worked at the Scapa plant, he was exposed to airborne asbestos fibers from: (1) asbestos-containing yarn used by Scapa to weave dryer felts at the plant; and (2) asbestos-containing pipe and boiler insulation that he worked around when the insulation was removed. Evidence showed that, between 1967 and 1973, Knight worked at the Scapa plant on “several” or “multiple” occasions as an independent contractor. Knight was present at the Scapa plant in proximity to the weaving looms when the looms were using asbestos-containing yarn to weave dryer felts. During the weaving process, airborne asbestos fibers were scraped off the yarn, and asbestos-containing lint or dust was created in the process. There was evidence that Scapa knew or should have known about the health dangers of asbestos exposure as a result of the weaving process at its plant, but did not warn about the dangers, or take any steps to protect plant workers from the dangers, prior to 1974. Other evidence showed that insulation on piping and boilers at the Scapa plant contained asbestos. Knight worked in proximity to the piping and boiler insulation when the insulation was removed releasing airborne dust from the insulation. The evidence was sufficient to show that asbestos-containing products were used, produced, or maintained at the Scapa plant in a manner which released airborne asbestos fibers, and that Knight was at the plant in proximity to those asbestos fibers when they were released.

Having reviewed all the evidence, we conclude that there was sufficient evidence supporting the jury's finding of liability and therefore “we find no error in the trial court's denial of [Scapa's] motion for a directed verdict on liability.” Eco–Clean, Inc. v. Brown, 324 Ga.App. 523, 529(3), 749 S.E.2d 4 (2013).

2. Expert testimony.

In challenging the sufficiency of the evidence, Scapa further claims that as to the issue of specific causation, the testimony of the Knights' expert, Dr. Jerrold Abraham, is founded on junk science. Consequently, Scapa maintains, that testimony is inadmissible under the rule adopted for the federal courts in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and for Georgia—in civil cases only—by statute. See former OCGA § 24–9–67.1 (applicable at the time of trial); current OCGA § 24–7–702.¹ The claim is without merit.

In addition to proof that Knight was negligently exposed by Scapa to asbestos, the Knights were required to prove that these exposures caused his mesothelioma

. Tort cases alleging negligent exposure to a toxic substance involve two types of causation. First, general causation; “whether a substance is capable of causing a particular injury or condition in the general population.” Butler v. Union Carbide Corp., 310 Ga.App. 21, 25, 712 S.E.2d 537 (2011) (citation and punctuation omitted). Second, specific causation; “whether a substance caused a particular individual's injury.” Id. (citation and punctuation omitted).

However, where, as here, the plaintiff has multiple exposures to asbestos involving multiple defendants, our Supreme Court has held that the plaintiff need not prove that “each individual tortfeasor's conduct constitute [s] a ‘substantial’ contributing factor in the injury.” John Crane, Inc. v. Jones, 278 Ga. 747, 747, 604 S.E.2d 822 (2004). Because “Georgia law clearly contemplates differing degrees of culpability among joint tortfeasors,” a plaintiff in such a case can establish proximate cause by proving that “the individual defendant's tortious conduct had [been] a contributing factor in bringing about the plaintiff's damages.” Id. at 748, 604 S.E.2d 822. In so holding, the court suggested in strongly-worded dicta that a de minimis exposure is not sufficient. Id. at 750, 604 S.E.2d 822 (“the jury charge at issue would not have misled the jury into believing that it could award damages for a de minimis exposure to asbestos”). But this is not a de minimis exposure case.

Scapa was responsible for considerably more than de minimis exposure. As the testimony of Dr. Abraham established, the exposures for which Scapa is responsible were “substantial causes” of Knight's mesothelioma

, and the jury indeed found Scapa substantially liable in the amount of 40 percent.

Under Daubert, trial judges are assigned a gatekeeping role to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589, 597, 113 S.Ct. 2786 ; accord former OCGA § 24–9–67.1(b). The burden of establishing reliability rests on the proponent of the expert opinion and must be established by a preponderance of the evidence. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) ; Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.1999). Admission or...