Malignant mesothelioma is a deadly form of cancer usually caused by exposure to asbestos. Prolonged inhalation of asbestos fibers can lead to a mesothelioma diagnosis decades after the fact. Because asbestos was commonly used in the construction industry until the 1970s, over a million people are still at risk for mesothelioma. Since the 1980s, litigation against asbestos manufacturers has skyrocketed.
Scapa Dryer Fabrics, Inc. v. Knight
The Georgia Court of Appeals recently weighed in on one such asbestos case. A divided seven-judge panel upheld an award of more than $4 million to a retired sheet metal worker and his wife.
As is often the case with mesothelioma, the plaintiff here did not exhibit symptoms until decades after his initial asbestos exposure. The plaintiff worked as a contractor at a manufacturing plant in Ware County, Georgia, during the late 1960s and early 1970s. The plant used asbestos in the course of its manufacturing operations. The plaintiff was also exposed to asbestos in the mid-1970s while installing drywall at his home. After he was diagnosed with mesothelioma in 2009, he sued both the plant and Union Carbide, the company that produced the asbestos used in his home.
Under Georgia law, it is not enough to prove a defendant negligently exposed a plaintiff to asbestos; the exposure must also be the cause of the mesothelioma. To that end, the plaintiff produced an expert witness at trial who testified “the cumulative exposure is what relates to  the risk for developing” mesothelioma. While acknowledging there was “no way to sort out how much one or the other contributed but for each of those individual exposures,” the expert said there was ultimately “no safe known threshold” for asbestos exposure. This meant that every time the plaintiff was exposed to asbestos, his risk for mesothelioma increased.
Based on this and other evidence, the jury determined the manufacturing plant was 40% liable for the plaintiff’s mesothelioma; Union Carbide was also 40% liable; and a third company, which was not a party to the case, the remaining 20%. The jury awarded damages of over $10 million, of which the manufacturing plant was held responsible for just under $4.2 million.
The plant appealed the verdict, arguing the trial court improperly admitting the plaintiff’s expert’s testimony. By a vote of 5-2, the Georgia Court of Appeals upheld the jury’s verdict. Judge Christopher J. McFadden, writing for the majority, said the expert’s opinions were “founded on scientific investigation and is therefore sufficient under” the laws governing the admissibility of such testimony.
Presiding Judge Gary Blaylock Andrews, writing in dissent, argued to the contrary. He said the expert’s view that “any exposure” contributed to the plaintiff’s mesothelioma was not “scientifically reliable.” and based on “unreliable methodology.” Judge Andrews cited a prior Georgia Court of Appeals decision, as well as rulings from several other courts around the country, in support of rejecting the expert’s opinion, which would defeat the plaintiff’s ability to prove causation.
But Judge McFadden said Judge Andrews missed the mark in this case. He said the expert’s methodology was “unexceptionable” and “not controversial.” There was no disputing asbestos exposure causes mesothelioma. And the jury found the plantiff’s exposure at the plant was not minimal or insignificant; indeed, the manufacturer was held 40% liable. As far as the majority was concerned, there was no error warranting overruling the jury’s decision.