Plaintiff’s Motion for Partial Summary Judgment Re-Affirmed as to Defendants’ Affirmative Defenses

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Court of Appeals of Georgia, Fourth Division

Defendants Pneumo Abex, LLC and Genuine Parts Company appeal the trial court’s partial grant of summary judgment to Sheila Long, individually and as personal representative of her late husband’s estate. Long alleged that her husband 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.” 

The court noted that the evidence must be viewed in light most favorable to the appellants. By way of background, Ron worked as a truck and automobile mechanic for various companies and then at his own automobile repair shop from 1977 to 1999. Ron was diagnosed with lung cancer on November 11, 2014. 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.” After the close of discovery, Long filed a motion for partial summary judgment “regarding various affirmative defenses and alternative causation.” Specifically, Long argued, during discovery, that 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. The trial court ultimately granted Long’s motion and defendants’ filed this instant appeal.

First, the court turned its attention to the appellant’s first argument 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.” The court disagreed with the appellant’s argument and noted that 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. The court found that the appellant’s failed in this regard.

The court then turned to the appellants’ argument that the trial court erred in granting summary judgment on “alternative carcinogens.” However, appellants’ arguments related to matters that were not actually ruled upon by the trial court, therefore, this court was unable to review.

The court affirmed the trial court’s grant of partial summary judgment to Long.