Supreme Court Finds Plaintiff’s Expert “Cumulative Exposure Theory” Does Not Fit Georgia Causation Standard and Reverses Judgment in Favor of Defendant Georgia Supreme Court, July 5, 2016
In a follow up to a case previously reported on in ACT, the Georgia Supreme Court granted a writ of certiorari to review the decision of the Court of Appeals of Georgia with respect to the admission of testimony from the plaintiff’s expert, Dr. Jerrod Abraham, and his “Cumulative Exposure Theory.”
This case first commenced when the plaintiff and his wife, Roy and Milva Knight, sued Scapa Dryer Fabrics, Inc., alleging that Roy’s mesothelioma was caused from exposure to asbestos while he was working as an independent sheet metal contractor at Scapa’s facility. During the trial, the jury heard other evidence of 29 additional non-party entities associated with products that may have also exposed Roy to asbestos. The jury found against Scapa and Union Carbide, and apportioned liability as follows: 40 percent Scapa; 40 percent Union Carbide; and 20 percent Georgia Pacific. Based on the apportionment, the trial court entered judgment against Scapa in the amount of $4,187,068.95. However, Scapa subsequently appealed on multiple evidentiary rulings, most notably the admissibility of Dr. Abraham’s testimony (Union Carbide settled after the verdict was not part of the appeal).
In the prior decision, Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82 (Ga. Ct. App. 2015), defendant Scapa argued at trial and on appeal that Dr. Abraham’s theory of “cumulative exposure” was not reliable in a scientific sense, the theory did not comport in any event with the legal requirements for causation in Georgia, and an expert opinion on causation that is derived from that theory is inadmissible. The trial court rejected these arguments and a divided seven-judge panel of the Court of Appeals of Georgia rejected them and affirmed the judgment of the trial court.
The Georgia Supreme Court granted the writ of certiorari on the issue of Dr. Abraham’s testimony only. The plaintiff offered Dr. Jerrod Abraham as a pathologist who offered a “cumulative exposure” or “each and every exposure” theory with respect to causation. According to Dr. Abraham, the precise point at which cumulative exposure is sufficient to cause any particular person to develop mesothelioma is not scientifically knowable, and for that reason, when a person actually has mesothelioma, it can only be attributed to his cumulative exposure as a whole. Because each and every exposure to respirable asbestos in excess of the background contributes to the cumulative exposure, Dr. Abraham reasoned, each exposure in excess of the background is a contributing cause of the resulting mesothelioma, regardless of the extent of each exposure.
In its review, the Georgia Supreme Court noted that, for the most part, the standard set forth with respect to the admissibility of expert testimony under Georgia evidentiary law was borrowed from Federal Rule of Evidence 702. Thus, when considering the meaning of the Georgia standard, the Georgia Supreme Court commonly looks for guidance in the decisions of the federal appellate courts construing and applying Rule 702. In considering the federal law with the Georgia standard, the Georgia Supreme Court emphasized that, generally, a trial court must assess three aspects of proposed expert testimony – the qualifications of the expert, the reliability of the testimony, and the relevance of the testimony. [Citation Omitted]. Specifically, (i) as for the qualifications, the trial court must examine the credentials of the expert; (ii) as for the reliability, the trial court must consider whether “the methodology by which the expert reaches his conclusions is sufficiently reliable; and (iii) as for the relevance, trial court must consider the “fit” between the expert testimony and the issues in dispute.
Scapa did not dispute that Dr. Abraham has adequate credentials to qualify as an expert. However, Scapa vigorously disputes the reliability of his testimony, asserting that the cumulative exposure theory by which Dr. Abraham developed his opinions on causation is not scientifically valid and is, to the contrary, “junk science.” Scapa also disputes the relevance of his testimony, arguing that it simply does not “fit” the pertinent causation inquiry under Georgia law. To prove causation against Scapa under Georgia law, Plaintiff must show that his exposure to asbestos related to Scapa was a “contributing factor in bring about his mesothelioma. [Citation Omitted]. Georgia Courts have previously rejected the notion that the contribution to the resulting injury must be substantial to show legal causation. However, a “de minimus” contribution is not enough. In other words, although the plaintiff did not need to provide his exposure related to Scapa was a substantial contribution to his mesothelioma, they did have to show it made a meaningful contribution.
The Georgia Supreme Court held, in the circumstances of this case, the critical opinion conveyed by Dr. Abraham in his testimony— that any exposure to asbestos was a cause of the plaintiff’s mesothelioma, regardless of the extent of the exposure — does not “fit” the legal standard for causation, and for that reason, the admission of his testimony under Georgia law was not helpful to the jury and amounted to an abuse of discretion. And given that Dr. Abraham’s opinion “went to the heart” of the dispute about the extent of exposure and causation, “the erroneous admission of the opinion requires that the Georgia Supreme Court REVERSE the Court of Appeals’ affirmance of the trial court’s judgment.