Scapa Dryer Fabrics, Inc. v. Knight , 299 Ga. 286 ( 2016 )

In the Supreme Court of Georgia
Decided: July 5, 2016
S15G1278. SCAPA DRYER FABRICS, INC. v. KNIGHT et al.
BLACKWELL, Justice.
Scapa Dryer Fabrics, Inc. is a textile manufacturer, and in the late 1960s
and early 1970s, it produced dryer felts at a manufacturing facility in Waycross.
Some of the pipes and boilers in that facility were insulated with material
containing asbestos, and Scapa used yarn containing asbestos in some of its
manufacturing processes. Between 1967 and 1973, Roy Knight worked on
multiple occasions at the Waycross facility as an independent contractor. Almost
forty years later, Knight was diagnosed with mesothelioma, a cancer most
commonly associated with the inhalation or ingestion of asbestos fibers. After
his mesothelioma was diagnosed, Knight and his wife sued Scapa, claiming that
Scapa negligently exposed him to asbestos at the Waycross facility and caused
his mesothelioma.1 The case was tried by a Ware County jury, which returned
1
Knight was employed as a sheet-metal worker, and between 1967 and 1973, he
worked on a number of projects at the Waycross facility. It is unclear, however, how much
a verdict against Scapa and awarded more than $4 million in damages to the
Knights.2 The trial court entered a judgment upon that verdict, and Scapa
appealed.
Among other things, Scapa argued on appeal that the trial court erred
when it admitted the expert testimony of Dr. Jerrold Abraham, a pathologist. In
his testimony, Dr. Abraham opined that, if Knight actually was exposed to
time in all Knight spent at the facility. Likewise, it is unclear — and strongly disputed in this
case — to what extent Knight actually was exposed to asbestos at the facility. When Scapa
used yarn containing asbestos in its manufacturing process, asbestos fibers were released into
the air, and the evidence shows that Knight sometimes worked at the facility while the
manufacturing process was underway. The evidence also shows that Knight worked in
ventilation ducts at the facility in which dust had collected, and on one occasion, he cut into
pipe insulation and was exposed to dust from the insulation. Notwithstanding this evidence,
Scapa disputes that Knight actually was exposed to any meaningful level of asbestos at its
Waycross facility, and Scapa offered expert testimony to support its position on the extent
of exposure.
2
Knight and his wife also sued Union Carbide Corporation, alleging that Union
Carbide negligently contributed to his mesothelioma by its sale of asbestos to Georgia
Pacific, LLC for use in the manufacture of a joint compound to which Knight was exposed
when drywall was installed at his residence in the mid-1970s. The claims against Scapa and
Union Carbide were tried together by a single jury. As with Scapa, the jury returned a verdict
against Union Carbide, and the jury also found fault on the part of nonparty Georgia Pacific.
The jury assessed 40 percent of the combined fault for the mesothelioma to Scapa, 40 percent
to Union Carbide, and 20 percent to Georgia Pacific, and it apportioned the damages
consistent with this allocation of fault, awarding more than $4 million in damages as against
Scapa. See OCGA § 51-12-33. See also Zaldivar v. Prickett, 297 Ga. 589, 591-600 (1) (774
SE2d 688) (2015). The jury considered evidence that 29 other nonparties also had exposed
Knight to asbestos, but the jury declined to attribute any fault to these other nonparties. After
the verdict was returned, Union Carbide settled with the Knights, and Union Carbide is not,
therefore, a party to this appeal.
2
asbestos while working at the Waycross facility, that exposure was a cause of
his mesothelioma, regardless of the precise extent of the exposure. Dr. Abraham
explained that a small number of respirable asbestos fibers are naturally present
in the air, but exposure to this background asbestos is not known to cause
mesothelioma. When someone is exposed to respirable asbestos in excess of the
background, however, his cumulative exposure may build to a point that it
exceeds the capacity of the lungs to absorb the exposure, and at that point, the
cumulative exposure may lead to mesothelioma. 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.
Objecting to the testimony of Dr. Abraham, Scapa argued at trial and on
appeal that his theory of cumulative exposure is not reliable in a scientific sense,
the theory does not comport in any event with the legal requirements for
3
causation in Georgia, and an expert opinion about causation that is derived from
that theory is inadmissible. The trial court rejected these arguments, and in
Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 85-89 (2) (770 SE2d 334)
(2015), a divided seven-judge panel of the Court of Appeals rejected them and
affirmed the judgment of the trial court.3 We issued a writ of certiorari to review
the decision of the Court of Appeals only with respect to the admission of the
testimony of Dr. Abraham, and we now reverse.
To begin, we look to former OCGA § 24-9-67.1 (b),4 which sets forth the
usual standard for the admissibility of expert opinion testimony in civil cases:
If scientific, technical, or other specialized knowledge will assist the
trier of fact in any cause of action to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
3
Judge McFadden authored the principal opinion for the Court of Appeals, addressing
the admissibility of the testimony of Dr. Abraham in Division 2. Presiding Judge Barnes
joined the principal opinion in full. Then-Presiding Judge Doyle, Judge Boggs, and Judge
Ray concurred in the judgment, but they withheld their concurrence from Division 2 and only
joined the other divisions of the opinion. Presiding Judge Andrews wrote a dissenting
opinion, which was joined by Judge Branch.
4
This case was tried in 2010, and for that reason, our old Evidence Code – of which
former OCGA § 24-9-67.1 (b) is a part – applies. See Olds v. State, ___ Ga. ___, ___, n.5
(Case No. S15G1610, decided May 23, 2016) (“The new Evidence Code applies in cases
tried on or after January 1, 2013.” (Citation omitted)). We note, however, that the provisions
of former OCGA § 24-9-67.1 (b) were carried forward into the new Evidence Code and now
can be found in OCGA § 24-7-702 (b).
4
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data
which are or will be admitted into evidence at the hearing or
trial;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
Like most questions of admissibility, whether expert testimony ought to be
admitted under former OCGA § 24-9-67.1 (b) is a question committed to the
sound discretion of the trial court. Toyo Tire North America Mfg. v. Davis, ___
Ga. ___, ___ (2) (S15G1804, decided June 6, 2016). But when a trial court
exercises that discretion, former OCGA § 24-9-67.1 (b) “imposes a special
obligation upon [the] trial judge.” Kumho Tire Co. v. Carmichael, 526 U. S.
137, 147 (II) (A) (119 SCt 1167, 143 LE2d 238) (1999).5 As we have explained
before, “[t]he whole premise of [former OCGA § 24-9-67.1] is that a trial court
must act as a ‘gatekeeper’ to ensure the relevance and reliability of expert
5
For the most part, the standard set forth in former OCGA § 24-9-67.1 (b) was
borrowed from Federal Rule of Evidence 702, see Dubois v. Brantley, 297 Ga. 575, 580 (2)
(775 SE2d 512) (2015), and so, when we consider the meaning of the Georgia standard, we
commonly look for guidance in the decisions of the federal appellate courts construing and
applying Rule 702. See Mason v. Home Depot USA, Inc., 283 Ga. 271, 279 (5) (658 SE2d
603) (2008).
5
testimony.” Dubois v. Brantley, 297 Ga. 575, 585 (2) (775 SE2d 512) (2015)
(citation omitted). See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U. S. 579, 597 (IV) (113 SCt 2786, 125 LE2d 469) (1993).
Generally speaking, 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 — to discharge its responsibilities
as a gatekeeper under former OCGA § 24-9-67.1 (b). See HNTB Ga., Inc. v.
Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010) (“In determining
the admissibility of expert testimony, the trial court acts as a gatekeeper,
assessing both the witness’[s] qualifications to testify in a particular area of
expertise and the relevancy and reliability of the proffered testimony.” (Citations
omitted)). See also Seamon v. Remington Arms Co., 813 F3d 983, 988 (III) (A)
(11th Cir. 2016); City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F3d 548,
562 (11th Cir. 1998). As for qualifications, the trial court must examine the
credentials of the expert to ascertain the extent to which he is “qualified to
testify competently regarding the matters he intends to address,” Seamon, 813
F3d at 988 (III) (A) (citation omitted), whether by “knowledge, skill,
experience, training, or education.” Former OCGA § 24-9-67.1 (b). As for
6
reliability, the trial court must consider whether “the methodology by which the
expert reaches his conclusions is sufficiently reliable.” Seamon, 813 F3d at 988
(III) (A) (citation omitted). To this end, the trial court must ask whether the
conclusions of the expert “[are] based upon sufficient facts or data,” former
OCGA § 24-9-67.1 (b) (1), whether the expert drew those conclusions by use
of “reliable principles and methods,” former OCGA § 24-9-67.1 (b) (2), and
whether the expert “applied [those] principles and methods reliably to the facts
of the case,” former OCGA § 24-9-67.1 (b) (3). See also Daubert, 509 U. S. at
592-593 (II) (C) (trial court must consider “whether the reasoning or
methodology underlying the testimony is scientifically valid and . . . whether
that reasoning or methodology properly can be applied to the facts in issue”).
And as for relevance, the trial court must consider the “fit” between the expert
testimony and the issues in dispute. Seamon, 813 F3d at 988 (III) (A). To
properly be admissible, expert testimony must “assist the trier of fact . . . to
understand the evidence or to determine a fact in issue,” former OCGA § 24-9-
67.1 (b), and expert testimony is helpful to the trier of fact only to the extent that
“the testimony is relevant to the task at hand and logically advances a material
7
aspect of [the] case.” Boca Raton Community Hosp. v. Tenet Health Care Corp.,
582 F3d 1227, 1232 (II) (11th Cir. 2009) (citation and punctuation omitted).
In this case, Scapa does not dispute that Dr. Abraham has adequate
credentials to qualify as an expert. Scapa vigorously disputes, however, 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. In the circumstances of this case, we agree that the
critical opinion conveyed by Dr. Abraham in his testimony — that any exposure
to asbestos at the Waycross facility was a cause of Knight’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 former
OCGA § 24-9-67.1 (b) was not helpful to the jury and amounted to an abuse of
discretion.6
6
Because we resolve this case upon “fit,” we do not decide whether Dr. Abraham’s
cumulative exposure theory is scientifically valid.
8
To prove causation as against Scapa under Georgia law, Knight and his
wife had to show that exposure to asbestos at the Waycross facility was “a
contributing factor in bringing about [his mesothelioma].” John Crane, Inc. v.
Jones, 278 Ga. 747, 748 (604 SE2d 822) (2004). See also DaimlerChrysler
Corp. v. Ferrante, 281 Ga. 273, 274 (1) (637 SE2d 659) (2006); Gooch v.
Georgia Marble Co., 151 Ga. 462, 464 (107 SE 47) (1921). We previously have
rejected the notion that the “contribution to the resulting injury [must] be
‘substantial’” to show legal causation. John Crane, Inc., 278 Ga. at 748. At the
same time, however, we cautioned that a “de minimis” contribution is not
enough. See id. at 750 (“[T]he jury charge [on ‘contributing factor’] would not
have misled the jury into believing that it could award damages for a de
minimus exposure to asbestos.” (Citation omitted)). Put another way, although
Knight and his wife did not have to prove that exposure to asbestos at the
Waycross facility made a substantial contribution to his mesothelioma, they did
have to show that it made a meaningful contribution. Just as we explained in
9
John Crane, Inc., a de minimis contribution to an injury is not sufficient to
establish legal causation under Georgia law.7
When the jury in this case considered legal causation, it had to determine
not only whether exposure to asbestos at the Waycross facility contributed in
some way to Knight developing mesothelioma, but also whether the extent of
that contribution was something more than de minimis. Although Knight and his
wife may well have presented evidence of more than a de minimis exposure at
the Waycross facility, Scapa presented evidence to the contrary. Whether Scapa
exposed Knight to any asbestos beyond background — and if so, whether that
exposure was anything more than de minimis — was seriously disputed at trial.
It was, of course, the prerogative and responsibility of the jury to resolve these
disputed questions of fact, and for all we know, perhaps the jury found that
Scapa exposed Knight to substantial asbestos. But by his testimony, Dr.
Abraham essentially told the jury that it was unnecessary to resolve the extent
of exposure at the Waycross facility — if the jury determined that Knight was
exposed at the facility to any asbestos beyond background, that exposure
7
We note that Knight and his wife do not ask this Court to overrule or reconsider our
precedent on causation.
10
contributed to his cumulative exposure, and according to Dr. Abraham, it was,
therefore, a contributing cause of the mesothelioma.8 Such testimony does not
“fit” the issue that the jury was charged with deciding, and it could not have
been helpful to the jury.
That is not to say that expert testimony premised upon a cumulative
exposure theory could never be relevant to causation under Georgia law. We
suppose, for instance, that if an expert coupled his reliance on the cumulative
exposure theory with reliable data sufficient to show that the exposure in
question were more than de minimis — and if the expert qualified his ultimate
opinion as to causation, conditioning it upon there having been more than a de
minimis exposure — the opinion then might “fit” the pertinent causation
inquiry, notwithstanding that the extent of exposure is disputed. In that instance,
the jury would have to resolve the extent of the exposure, and if the jury
accepted that the exposure was as significant as the data of the expert suggested,
8
The principal opinion of the Court of Appeals below characterized this case as a
“substantial exposure” case. See Scapa Dryer Fabrics, 332 Ga. App. at 87 (2). For our
immediate purposes, we accept that the jury might properly have found something more than
a de minimis exposure at the Waycross facility. But whether Knight was exposed at all by
Scapa, and if so, to what extent, was highly disputed at trial. In light of Dr. Abraham’s
testimony, the fact that the jury ultimately returned a verdict against Scapa offers no
assurance that the jury actually found anything more than a de minimis exposure.
11
it then could accept his opinion as to causation. But in this case, Dr. Abraham
did not undertake to estimate the extent of exposure in any meaningful way, and
he did not qualify his opinion on causation by limiting it to such estimate of
exposure.
Courts throughout the country have recognized the importance of such a
qualification for the admissibility of expert testimony based on a theory of
cumulative exposure, admitting such testimony when it is based on reliable data
sufficient to show the requisite exposure, and rejecting such testimony when it
is not.9 See, e.g., Schwartz v. Honeywell Intl., Inc., ___ NE3d ___, ___ (2016
WL 3018615) (Ohio App. 2016) (noting that courts “have distinguished
testimony suggesting a de minimis exposure to asbestos could cause
mesothelioma from testimony that each significant exposure to asbestos could
be a cause”); Robertson v. Doug Ashy Bldg. Materials, Inc., 168 S3d 556, 578-
579 (La. App. 2014) (testimony admissible where expert “did a qualitative
assessment of Mr. Robertson’s exposures” and limited his opinion on causation
9
For a plaintiff to show that an exposure was more than de minimis, we do not mean
to suggest that it is essential for the plaintiff’s expert to estimate the extent of the exposure
in precise quantitative terms. Such an estimate may not be possible in many cases, and our
Court of Appeals has held that it is not absolutely required. See Fouch v. Bicknell Supply
Co., 326 Ga. App. 863, 868-869 (1) (756 SE2d 682) (2014).
12
to exposures of significance); Quirin v. Lorillard Tobacco Co., 23 FSupp3d 914,
920 (N.D. Ill. 2014) (“There is a difference, moreover, between pointing to a
minor exposure to asbestos and claiming causation in a conclusory fashion and
identifying, through use of expert testimony, a significant and sustained
exposure in the plaintiff’s history.”). See also Yates v. Ford Motor Co., 113
FSupp3d 841, 862 (E.D.N.C. 2015) (testimony inadmissible where it was not
tied to quantitative analysis of actual exposure); Krik v. Owens-Illinois, Inc.,
2015 WL 5050143, *1 (N.D. Ill. 2015) (testimony inadmissible where it “was
not tied to the specific quantum of exposure attributable to the defendants”).
Indeed, in one case, a court admitted the causation testimony of Dr. Abraham
himself, in large part because Dr. Abraham had based his opinion not only upon
a theory of any exposure or cumulative exposure, but also upon a review of the
evidence of the extent of exposure, as well as a review of studies showing that
such exposures present an increased risk of developing mesothelioma. See
Anderson v. Ford Motor Co., 2014 U.S. Dist. LEXIS 26337 (D. Utah, Case No.
2:06-CV-741-TS, decided Feb. 28, 2014). Even though Dr. Abraham in this case
may have spoken of the extent to which Knight could have been exposed to
asbestos by Scapa (as well as studies showing increased risk at certain exposure
13
levels), Dr. Abraham did not cast his ultimate opinion on causation (as he
presented it to the jury) in those terms. Rather, Dr. Abraham invited the jury to
find causation if there was any exposure by Scapa, even if it were only de
minimis. Consistent with his opinion that any contribution to cumulative
exposure is a cause of mesothelioma, Dr. Abraham told the jury that a causal
connection would be lacking only if “there was no asbestos exposure”
attributable to Scapa. Dr. Abraham testified that “one fiber [of asbestos] above
ambient levels” would be causative for someone who had mesothelioma. He
twice said in his testimony that he did not need to determine the extent of
Knight’s exposure, but only needed to know that the exposure was more than
“zero.” And he testified that, even if someone “gets the disease from a trivial
exposure, it’s still asbestos related.”
Because Dr. Abraham failed to adequately qualify his opinion on
causation and condition it upon a reliable estimate of actual exposure, his
opinions are not saved by his additional testimony about the hypothetical extent
to which Knight might have been exposed to asbestos at the Waycross facility.
For all we know, the jury could have disregarded altogether those hypothetical
statements about the extent of exposure and still attributed cause to a de minimis
14
exposure by Scapa simply because the jury believed Dr. Abraham when he said
that any exposure beyond background would be a contributing cause. As
Presiding Judge Andrews noted in his dissent below, “[u]nder Dr. Abraham’s
methodology, any exposure to asbestos, no matter how small, can be
characterized as a ‘substantial cause’ because, in his opinion, all exposures
contribute to cause mesothelioma.” Scapa Dryer Fabrics, 332 Ga. App. at 102
(Andrews, P.J., dissenting).
In the trial court, the Knights bore the burden to establish not only that Dr.
Abraham was qualified and that his testimony was reliable, but also that his
testimony would be helpful to the jury. See United States v. Frazier, 387 F3d
1244, 1260 (III) (A) (11th Cir. 2004) (burden is on the party seeking to
introduce expert testimony to “establish[] qualification, reliability, and
helpfulness”). His ultimate opinion as to causation, however, was not limited to
any meaningful estimate of exposure to asbestos at the Waycross facility
(whether qualitative or quantitative), and it instead invited the jury to find that
causation was established by any exposure at all. In that respect, the testimony
did not “fit” the pertinent causation inquiry under Georgia law, and it should
have been excluded by the trial court, acting as gatekeeper, because it could only
15
serve to confuse the jury on the issue of causation. 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
we reverse the Court of Appeals’ affirmance of the trial court’s judgment.”
Johnson v. Knebel, 267 Ga. 853, 859 (4) (485 SE2d 451) (1997).
Judgment reversed. All the Justices concur, except Benham and Hunstein,
JJ., who concur in judgment only.
16