Pneumo Abex, LLC v. Sheila Long ( 2020 )

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 6, 2020
In the Court of Appeals of Georgia
A20A1442. PNEUMO ABEX, LLC, et al. v. SHEILA LONG, et al.
DILLARD, Presiding Judge.
Pneumo Abex, LLC and Genuine Parts Company1 appeal the trial court’s
partial grant of summary judgment to Sheila Long—individually and as personal
representative of her late husband’s estate2—in her toxic-tort action, alleging that 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
1
Honeywell International, Inc.—the successor in interest to the Bendix
Corporation—also appealed from the trial court’s order, but withdrew from the appeal
after entering into a settlement with Sheila Long. Pneumo Abex, LLC and Genuine
Parts Company are the only remaining appellants.
2
For the sake of clarity, we refer to Sheila Long as “Long” and Ron Long as
“Ron” throughout this opinion.
erred in granting summary judgment to Long as to their non-party fault defense and
on “alternative carcinogens.” For the reasons set forth infra, we affirm.
Viewing the evidence in the light most favorable to the appellants (i.e., the
nonmoving parties),3 the record shows that from 1977 until 1999, Ron worked as a
truck and automobile mechanic for various companies and then at his own automobile
repair shop. During his career, Ron performed numerous brake, clutch, and gasket
replacements; and some of the equipment and materials he used in the course of his
work were manufactured by the appellants and contained asbestos. On November 11,
2014, Ron was diagnosed with pulmonary adenocarcinoma, a form of lung cancer.
According to one of his treating physicians, Ron was exposed to asbestos in the
3
See, e.g., Martin v. Herrington Mill, LP, 316 Ga. App. 696, 696 (730 SE2d
164) (2012). The record before us consists of 14,478 pages contained in 54 volumes.
And as we have previously noted, we will not “cull the record on behalf of a party,
particularly in a case such as this where the record is voluminous.” Callaway v.
Willard, 351 Ga. App. 1, 5 (1) (830 SE2d 464) (2019); see Harris v. State, 256 Ga.
App. 120, 122 (2) (567 SE2d 394) (2002) (“We have repeatedly held that it is not the
function of this [C]ourt to cull the record on behalf of a party. This is particularly true
in a case such as this where the transcript alone exceeds 1,500 pages.” (footnote and
punctuation omitted)). So, while it appears the parties’ briefs and our independent
review of the record have identified the portions of the record relevant to this appeal,
we caution that “if we have missed something in the record or misconstrued an
argument, the responsibility rests with [appellants’] counsel.” Cawthon v. State, 350
Ga. App. 741, 743 (830 SE2d 270) (2019).
2
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.”
On September 16, 2016, prior to Ron’s death, the Longs filed a negligence
complaint against numerous defendants, alleging, inter alia, that Ron’s lung cancer
was a direct result of exposure to asbestos contained in their products.4 Discovery
ensued, and over a year later (after Ron died from his lung cancer), Long filed a
motion to substitute herself—in her capacity as the executor of Ron’s estate—in place
of Ron as a plaintiff. Long also sought to file an amended complaint, which, inter
alia, added a wrongful-death claim. The trial court granted both requests, and so,
Long proceeded with the case in her individual capacity, as well as in her capacity as
executor of Ron’s estate.
Thereafter, several parties filed motions for summary judgment. But this appeal
concerns Long’s motion for partial summary judgment “regarding various affirmative
defenses and alternative causation.” Specifically, Long argued that, during discovery,
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
4
The Longs also asserted claims for loss of consortium, products liability, and
punitive damages, but those claims are not at issue in this appeal.
3
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.
Following the appellants’ response and Long’s reply, which are discussed
infra, the trial court ultimately granted Long’s motion.5 As to the issue of alternative
carcinogens, the trial court found that no expert witness in the case—either for Long
or the appellants—testified that exposure to second-hand smoke, diesel exhaust, or
radon could have caused Ron’s cancer, and certain arguments they made were
inconsistent with the burden of proof required by the apportionment statute.
Furthermore, the court found that the affidavit of the appellants’ expert (Dr. Allan
5
It is unclear whether the trial court held a hearing on Long’s motion, and
although Long references a hearing, she does not cite to a hearing transcript in the
sizeable record. And the appellants make no reference to the hearing at all. Thus, it
does not appear that a transcript from any potential summary-judgment hearing is
necessary for our resolution of this appeal.
4
Feingold)—in which he detailed his opinion regarding the alleged medical
malpractice of Ron’s physicians—did not meet the required causation standard of
expressing his opinion with “a reasonable degree of medical certainty.” Regardless,
the court also found that Feingold was not qualified to testify as an expert because he
did not have the requisite experience as a practicing medical doctor in the area of
concern. Lastly, the court found that any injuries resulting from improper or unskilled
medical treatment by a physician were a foreseeable part of the damages resulting
from Ron’s lung cancer. This appeal from the trial court’s partial grant of summary
judgment in favor of Long follows.
Summary judgment is proper when “there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law.”6 Furthermore,
a de novo standard of review “applies to an appeal from a grant or denial of summary
judgment, and we view the evidence, and all reasonable conclusions and inferences
drawn from it, in the light most favorable to the nonmovant.”7 And at the summary-
judgment stage, “[w]e do not resolve disputed facts, reconcile the issues, weigh the
evidence, or determine its credibility, as those matters must be submitted to a jury for
6
OCGA § 9-11-56 (c); accord Martin, 316 Ga. App. at 697.
7
Martin, 316 Ga. App. at 697 (punctuation omitted).
5
resolution.”8 Nevertheless, if there is no evidence sufficient to “create a genuine issue
as to any essential element of [the] plaintiff’s claim, that claim tumbles like a house
of cards[,]” and all other factual disputes are rendered immaterial.9 With these guiding
principles in mind, we now address the appellants’ specific claims of error.
1. The appellants argue 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.” We disagree.
Under OCGA § 51-12-33 (c), “in assessing percentages of fault, the trier of fact
shall consider the fault of all persons or entities who contributed to the alleged injury
or damages, regardless of whether the person or entity was, or could have been,
named as a party to the suit.”10 Indeed, the statute is designed to apportion damages
“among all persons or entities who contributed to the alleged injury or
8
Tookes v. Murray, 297 Ga. App. 765, 766 (678 SE2d 209) (2009).
9
McQuaig v. Tarrant, 269 Ga. App. 236, 237 (603 SE2d 751) (2004); accord
Dyess v. Brewton, 284 Ga. 583, 586 (3) (669 SE2d 145) (2008).
10
Sw. Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 421 (3) (819
SE2d 696) (2018), quoting OCGA § 51-12-33 (c).
6
damages—even persons who are not and could not be made parties to the lawsuit[.]”11
But significantly, 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.”12 Suffice it to say, were it otherwise,
there would be “no limitation on the number of potential non[-]parties that a trial
court would be required to include on the verdict form for purposes of assessing fault
under OCGA § 51-12-33 (c).”13
The Supreme Court of Georgia has held that under OCGA § 51-12-33 (c), a
person or entity who has contributed to the alleged injury or damages means “all
persons or entities who have breached a legal duty in tort that is owed with respect
to the plaintiff, the breach of which is a proximate cause of the injury sustained by the
11
Quinney, 347 Ga. App. at 427 (4) (punctuation omitted); accord Martin v.
Six Flags Over Georgia II, L.P., 301 Ga. 323, 337 (III) (801 SE2d 24) (2017); Couch
v. Red Roof Inns, Inc., 291 Ga. 359, 362 (1) (729 SE2d 378) (2012).
12
Quinney, 347 Ga. App. at 427 (4) (punctuation omitted); accord Union
Carbide Corp. v. Fields, 315 Ga. App. 554, 559 (1) (b) (ii) (726 SE2d 521) (2012),
reversed in part on other grounds Georgia-Pac., LLC v. Fields, 293 Ga. 499 (748
SE2d 407) (2013).
13
Quinney, 347 Ga. App. at 427 (4) (punctuation omitted); accord Fields, 315
Ga. App. at 559 (1) (b) (ii) n.4.
7
plaintiff.”14 And that includes not only the plaintiff and defendants with liability to
the plaintiff, but also “every other tortfeasor whose commission of a tort as against
the plaintiff was a proximate cause of his injury, regardless of whether such tortfeasor
would have actual liability in tort to the plaintiff.”15 Finally, while it is the defendant’s
burden to establish a “rational basis for apportioning fault to a non-party, whether the
non-party contributed to the alleged injury is a question of fact for a jury to decide.”16
So, because the appellants alleged that the non-party tortfeasors—i.e., Ron’s treating
physicians—committed the tort of medical malpractice, they can only be included on
the verdict form for purposes of apportionment if there is some competent evidence
14
Zaldivar v. State, 297 Ga. 589, 600 (1) (774 SE2d 688) (2015) (punctuation
omitted); accord Johnson St. Props., LLC v. Clure, 302 Ga. 51, 58 (1) (b) (805 SE2d
60) (2017); Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, 336 Ga. App. 527,
530 (785 SE2d 541) (2016).
15
Zalvidar, 297 Ga. at 600 (1) (punctuation omitted) (emphasis supplied);
accord Alston & Bird LLP, 336 Ga. App. at 530; see Zalvidar, 297 Ga. at 598 (1)
(“[T]he apportionment statute permits consideration, generally speaking, of the ‘fault’
of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense
or claim of immunity against any liability to the plaintiff.”).
16
Clure, 302 Ga. at 58 (1) (b); see Six Flags Over Ga. II, L.P. v. Martin, 335
Ga. App. 350, 364-65 (3) (780 SE2d 796) (2015) (“[I]t is a defendant’s burden to
establish a rational basis for apportioning fault to a non[-]party; but whether the
defendant meets that burden given the evidence at trial is an issue that should be left
to the jury.”), reversed in part on other grounds by Martin v. Six Flags Over Ga. II,
L.P., 301 Ga. 323 (801 SE2d 24) (2017).
8
that they did, in fact, commit such malpractice and it proximately caused or
contributed to causing Ron’s injuries and damages.17
(a) Medical Malpractice. To recover in a medical-malpractice case, a plaintiff
must “show not only a violation of the applicable medical standard of care but also
that the purported violation or deviation from the proper standard of care is the
proximate cause of the injury sustained.”18 Indeed, a mere showing of negligence
17
See note 12 & accompanying text; Zalvidar, 297 Ga. at 600 (1) (“[W]e hold
that OCGA § 51-12-33 (c) requires the trier of fact in cases to which the statute
applies to ‘consider the fault of all persons or entities who contributed to the alleged
injury or damages,’ meaning all persons or entities who have breached a legal duty
in tort that is owed with respect to the plaintiff, the breach of which is a proximate
cause of the injury sustained by the plaintiff. That includes not only the plaintiff
himself and defendants with liability to the plaintiff, but also every other tortfeasor
whose commission of a tort as against the plaintiff was a proximate cause of his
injury, regardless of whether such tortfeasor would have actual liability in tort to the
plaintiff.” (emphasis supplied)).
18
MCG Health, Inc. v. Barton, 285 Ga. App. 577, 582 (2) (647 SE2d 81)
(2007) (punctuation omitted); accord Moore v. Singh, 326 Ga. App. 805, 808 (1) (755
SE2d 319) (2014). In portions of their brief, the appellants suggest that this Court
should apply a lesser or different standard than the one that we apply in medical-
malpractice cases because this is not a medical-malpractice case against a defendant
doctor. This argument is a nonstarter. In Zalvidar, our Supreme Court held that
OCGA § 51-12-33 (c) “require[s] the trier of fact to consider the ‘fault’ of a non[-
]party only when the non[-]party is shown to have committed a tort against the
plaintiff that was a proximate cause of his injury.” Zalvidar, 297 Ga. at 591 (emphasis
supplied). The appellants allege that the non-party doctors committed medical
malpractice, and thus, we apply our precedent governing such cases.
9
“without proof of causation is insufficient to withstand summary judgment.”19
Additionally, to meet this burden, the plaintiff must “use expert testimony because
the question of whether the alleged professional negligence caused the plaintiff’s
injury is generally one for specialized expert knowledge beyond the ken of the
average layperson.”20 Nevertheless, questions regarding causation are “peculiarly
questions for the jury except in clear, plain, palpable and undisputed cases.”21
In Georgia, medical causation must be proved to a “reasonable degree of
medical certainty and cannot be based on mere speculation[,]”22 and the evidence
must provide more than a “mere or bare possibility that the alleged negligence caused
19
Barton, 285 Ga. App. at 582 (2) (punctuation omitted); accord Swint v. Mae,
340 Ga. App. 480, 482 (1) (798 SE2d 23) (2017); see Edokpolor v. Grady Mem’l
Hosp. Corp., 347 Ga. App. 285, 287 (1) (819 SE2d 92) (2018) (“A plaintiff cannot
recover for medical malpractice, even [when] there is evidence of negligence, unless
the plaintiff establishes by a preponderance of the evidence that the negligence either
proximately caused or contributed to cause plaintiff harm.” (punctuation omitted)).
20
Zalvidar, 297 Ga. at 500; accord Edokpolor, 347 Ga. App. at 287 (1); Swint,
340 Ga. App. at 482 (1).
21
Barton, 285 Ga. App. at 582 (2) (punctuation omitted); accord Adams v.
McDonald, 346 Ga. App. 464, 469 (816 SE2d 454) (2018).
22
Barton, 285 Ga. App. at 582 (2) (punctuation omitted); accord Knight v.
Roberts, 316 Ga. App. 599, 604 (1) (a) (730 SE2d 78) (2012).
10
the plaintiff’s injury.”23 Indeed, the expert’s testimony must show as an evidentiary
threshold that “the expert’s opinion regarding causation is based, at the least, on the
determination that there was a reasonable probability that the negligence caused the
injury.”24 Of course, a “reasonable degree of medical certainty,” while an acceptable
means by which “an expert may express the confidence [he or she] has in the
conclusion formed and the probability that it is accurate, is not the required
standard.”25 To the contrary, Georgia law requires only that “an expert state an
opinion regarding proximate causation in terms stronger than that of medical
possibility, i.e., reasonable medical probability or reasonable medical certainty.”26
23
Zwiren v. Thompson, 276 Ga. 498, 501 (578 SE2d 862) (2003); see Moore,
326 Ga. App. at 809 (1) (“[A] plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than not that the conduct of
the defendant was a cause in fact of the result. A mere possibility of such causation
is not enough.” (punctuation omitted)).
24
Zwiren, 276 Ga. at 501 (punctuation omitted); accord Swint v. Alphonse, 348
Ga. App. 199, 206 (2) (820 SE2d 312) (2018).
25
Zwiren, 276 Ga. at 501 (punctuation omitted); see Moore, 326 Ga. App. at
810 (1) (holding that the expert’s “failure to state that he believed [his opinion] to be
the case ‘to a reasonable degree of medical certainty’ does not require a finding that
[the plaintiff] failed to present evidence of causation—[his] experts were not required
to use these magic words in rendering their opinions” (punctuation omitted)).
26
Zwiren, 276 Ga. at 501 (punctuation omitted); see Moore, 326 Ga. App. 805
at 809 (1) (“In some instances where the question of causation is outside the ken of
11
Turning to the alleged medical malpractice in this case, the appellants
submitted an affidavit by Feingold, their proposed expert on Ron’s form of lung
cancer, alleging that certain negligence by Ron’s treating physicians contributed to
his pain and suffering and decline in his quality of life. In addition to his affidavit,
Feingold issued a report regarding his review of Ron’s medical records and treatment.
And as to the standard of care for pulmonary adenocarcinoma, Feingold averred that
“it is currently routine to submit samples of newly diagnosed pulmonary
adenocarcinoma for DNA mutation analysis.” According to Feingold, “EGFR-
mutated adenocarcinoma . . . are usually susceptible to treatment with a new class of
therapeutic agents named tyrosine kinasc inhibitors (“TKIs”) and that patients with
EGFR mutations often experience dramatic therapeutic response to TKI treatment
characterized by resolution or near resolution of pulmonary parenchymal masses and
even resolution of mestatic foci.”27 He further averred that in 2014, when Ron was
diagnosed with cancer, “the possibility of adding TKI to chemotherapy was routinely
the normal juror, this showing must be based on expert testimony that is sufficient to
support a finding that the deviation from the standard of care to a reasonable degree
of medical certainty caused the injury.”).
27
(Brackets omitted).
12
considered by oncologists and pulmonologists . . . who were treating patients with
EGFR-mutated lung cancers.”28
As a caveat to his opinion, Feingold noted that the medical records available
to him in this case were incomplete.29 But a review of the records that were available
to him at that time suggested Ron “was not treated with a TKI (if at all) until at least
two years after his original diagnosis[,] . . . but instead was treated with traditional
chemotherapy.” So, Feingold could tell from Ron’s records that a DNA-mutation
analysis was not performed on his tumor until December 2016—two years after his
diagnosis. And according to Feingold, when this testing was performed, it revealed
a treatable EGFR mutation. Feingold noted that, initially, he could not determine from
the records available to him whether or when Ron was treated with TKIs. But he later
explained that Ron received TKI treatments in late 2016 or early 2017.
28
(Emphasis supplied).
29
Feingold averred that, at the time of his report, the medical records available
to him were incomplete, and while he received additional records by the time he
executed his affidavit, the records were “still incomplete.” In their briefs, neither
party provides an explanation for why Feingold lacked access to Ron’s complete
medical records, and the appellants have not raised any arguments on appeal
regarding that issue.
13
According to Feingold’s report, Ron had a CT Scan on November 25, 2016,
and after receiving additional medical records, Feingold was able to confirm that Ron
received a TKI treatment in the six months following that scan. Feingold’s report
further noted that on May 24, 2017, Ron had another CT scan; and while Feingold did
not have access to a copy of that scan, it “reportedly revealed significant
improvement[,] which implies that at some point in the six months after the CT of
11/25/2016[,] [Ron] was finally treated with a TKI for his EGFR mutated
adenocarcinoma.”30 But then, after receiving a report from another doctor, Feingold
was able to confirm that Ron had been treated with a TKI following his November
25, 2016 CT scan, but before his May 24, 2017 CT scan, which Feingold still did not
have a copy of for his records. In sum, Feingold concluded that “the more than two-
year delay in the identification and proper treatment of [Ron’s] EGFR mutation
deprived him of the potential benefits of early TKI treatment and probably
meaningfully contributed to his pain and suffering and a decrease in his quality of life
during the period after November 2014 until his death.” Nevertheless, Feingold
maintained that he still did not have a complete copy of Ron’s medical records, and
30
(Emphasis supplied).
14
he reserved the right to “supplement [his] opinion upon receipt of additional
materials.”
In providing an opinion in a medical-malpractice case, an expert need not use
the magic words “reasonable degree of medical certainty,” but the facts in the record
“must be sufficient to meet the legal standard embodied in those ‘magic words.’”31
Nevertheless, in presenting an opinion on causation, the expert is “required to express
some basis for both the confidence with which his conclusion is formed, and the
probability that his conclusion is accurate.”32 Put another way, there must be a
“realistic assessment of the likelihood that the alleged negligence caused the injury
or death.”33 Indeed, perhaps nothing in medicine is absolutely certain, but “the law
31
Beasley v. Northside Hosp., Inc., 289 Ga. App. 685, 689 (658 SE2d 233)
(2008) (footnote omitted); see Swint, 340 Ga. App. at 482 (1) (explaining that an
expert in a medical-malpractice action “must state his or her opinion regarding
proximate causation in terms stronger than that of medical possibility[,] . . .[but] [t]he
use of the magic words ‘reasonable degree of medical certainty’ is not required . . .
.” (citation omitted)).
32
Swint, 340 Ga. App. at 483 (1) (punctuation omitted)); accord Zwiren, 276
Ga. at 501; Ga. Clinic, P.C. v. Stout, 323 Ga. App. 487, 495 (5) (747 SE2d 83)
(2013); Beasley, 289 Ga. App. at 688.
33
Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998)
(punctuation omitted); see Zwiren, 276 Ga. at 500-01 (“Using the specialized
knowledge and training of his field, the expert’s role is to present to the jury a
realistic assessment of the likelihood that the defendant’s alleged negligence caused
15
intends that if the plaintiff’s medical expert cannot form an opinion with sufficient
certainty so as to make a medical judgment, there is nothing on the record with which
a jury can make a decision with sufficient certainty so as to make a legal judgment.”34
Applying these well-established principles in this case, we conclude that
Feingold’s medical testimony was simply too vague to express the kind of reasonable
degree of medical certainty or probability necessary to establish causation for a
medical-malpractice claim. Significantly, Feingold admits that he never had Ron’s
complete medical records, and he reserved the right to supplement his opinion if more
records were received, which suggests that the opinion expressed in his affidavit
might not even be final. Feingold also averred that in 2014, when Ron was diagnosed
with lung cancer, “the possibility of adding TKI treatments to chemotherapy was
routinely considered by oncologists and pulmonologists . . . who were treating
patients with EGFR-mutated lung cancers.” Needless to say, testimony that cancer
specialists only considered the possibility of administering TKI treatments in addition
the plaintiff’s injury.”).
34
Beasley, 289 Ga. App. at 688; accord Zwiren, 276 Ga. at 501; Naik v.
Booker, 303 Ga. App. 282, 285 (692 SE2d 855) (2010).
16
to chemotherapy when a patient has a EGFR mutation does not indicate how often
TKI treatments were actually administered in such cases.
And while Feingold’s report indicated that Ron received TKI treatments in the
six months following his November 2016 CT scan, Feingold never saw the CT scan
that was allegedly taken six months after the treatments, and thus, he had no first-
hand knowledge of whether the treatment even benefitted Ron or how it was
beneficial. Moreover, Feingold never specified the type of pain and suffering the TKI
treatments would have reduced or the percentage of likelihood that they would have
reduced such pain,35 and he certainly did not claim that TKI treatments could have
prevented Ron’s death. Simply put, Feingold’s summary conclusion that the “delay
in the identification and proper treatment of [Ron’s] EGFR mutation deprived him of
35
In their reply brief, the appellants detail the pain and suffering Ron endured
as a result of chemotherapy and later refer to it as the “wrong treatment,” but Feingold
never asserted that TKI treatments were a replacement for chemotherapy. To the
contrary, Feingold averred that cancer specialists routinely considered the possibility
of adding such treatments to chemotherapy, and he never claimed that TKI treatments
lessened the well-known adverse effects of chemotherapy. The appellants also claim
that Feingold averred that Ron’s medical records “revealed significant improvement”
shortly after his doctor’s began the TKI treatment. But again, Feingold never actually
viewed the CT scan that was taken after Ron allegedly received TKI treatments and
averred only that the scan reportedly revealed significant improvement. Feingold
provided no first-hand testimony regarding whether this latest CT scan revealed any
improvement at all.
17
the potential benefits of early TKI treatment and probably meaningfully contributed
to his pain and suffering and a decrease in his quality of life . . .”36 fails to “express
some basis for both the confidence with which his conclusion is formed, and the
probability that his conclusion is accurate.”37
36
(Emphasis supplied).
37
Zwiren, 276 Ga. at 501 (punctuation omitted) (emphasis supplied); see
Edokpolor, 347 Ga. App. at 287-88 (1) (holding that a medical expert’s conclusion,
with little explanation, that the hospital’s nursing staff’s negligent decision to
administer medication by mouth rather than through an NG tube proximately caused
the patient’s death by aspiration did not raise a genuine issue of material fact as to the
causation requirement); Beasley, 289 Ga. App. at 689-90 (affirming the trial court’s
grant of summary judgment to the defendant hospital in a medical-malpractice case
when the plaintiff’s expert’s opinion included “no assessment of the likelihood that
the hospital’s alleged negligence caused [the plaintiff’s] injuries, no basis for the
expert’s conclusion, and no expression of probability that the expert’s conclusion is
accurate[,]” and the plaintiff’s “medical expert could not form an opinion with
sufficient certainty so as to make a medical judgment”); Reeves v. Mahathre, 328 Ga.
App. 546, 550 (759 SE2d 926) (2014) (“Although one of [a]ppellants’ experts . . .
opined generally that the failure of [the defendant doctor], among various other
medical professionals, to correctly diagnose [the deceased] and relieve the obstruction
‘ultimately led to the development of urosepsis and caused her death,’ this
generalized testimony was not sufficient to create a jury question on the issue of
causation.” (punctuation and emphasis omitted)); Cannon v. Jeffries, 250 Ga. App.
371, 373 (1) (551 SE2d 777) (2001) (affirming grant of summary judgment for
defendant doctor on causation when expert testimony established that the defendant’s
actions “may have contributed” to the decedent’s injury and “was unwilling to state
a percentage of probability” (emphasis supplied)); Estate of Patterson v.
Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 709 (2) (505 SE2d 232) (1998)
(holding expert testimony that the doctor’s alleged negligence “may have
contributed” to the decedent’s injury and death was insufficient to establish causation
18
Thus, the appellants failed to present competent evidence to show that Ron’s doctors
were “tortfeasors” who committed malpractice, and thus, the trial court did not err in
finding that they should not be included on the verdict form for apportionment of
fault.38
(b) Feingold’s qualifications. The parties disagree as to whether Feingold is
qualified to testify as an expert regarding the alleged medical malpractice. Further,
the appellants challenge the trial court’s finding that their non-party fault defense fails
for a medical-malpractice claim); Grantham v. Amin, 221 Ga. App. 458, 458-59 (471
SE2d 525) (1996) (affirming summary judgment in favor of the defendant doctor
when the plaintiff’s expert testified that the doctor’s alleged negligence “could have
been a significant contributing cause” to the patient’s death); see also Edokpolor, 347
Ga. App. at 287 (1) (explaining that “[t]here can be no recovery where there is no
showing to any reasonable degree of medical certainty that the injuries could have
been avoided” (punctuation omitted)). Cf. Swint, 348 Ga. App. at 207 (2) (reversing
the trial court’s grant of summary judgment to the defendant doctor when the
plaintiff’s expert testified that, in his professional opinion, there was a “high
probability” that the defendant doctor’s breach of the standard of care caused the
plaintiff’s injuries). In its reply brief, the appellants argue that Long waived her
argument that Feingold’s testimony was unsupported by “facts and data” because she
raises it for the first time on appeal. But they concede that Long did argue below that
Feingold’s opinion did not meet the reasonable-degree-of-medical-certainty
requirement. And as explained supra, we agree with the latter argument. Needless to
say, a grant of summary judgment must be affirmed “if it is right for any reason,
whether stated or unstated in the trial court’s order, so long as the movant raised the
issue in the trial court and the nonmovant had a fair opportunity to respond.”
Georgia-Pac., LLC, 293 Ga. at 504 (punctuation and emphasis omitted).
38
See supra notes 12 and 15 & accompanying text.
19
because any medical malpractice resulting from Ron’s lung cancer was foreseeable
to them. But because we hold in Division (1) (a) supra that Feingold’s testimony was
insufficient to establish the causation element of a medical-malpractice claim against
Ron’s physicians for purposes of apportionment, we need not separately address the
trial court’s other alternative bases for granting summary judgment as to the
appellants’ non-party fault defense.
2. Next, the appellants argues that the trial court erred in granting summary
judgment on “alternative carcinogens.” But, in substance, their arguments relate to
matters that were not actually ruled upon by the trial court, which leaves us with
nothing to review.
Because there seems to be some confusion among the parties as to what exactly
the trial court granted summary judgment on with respect to alternative carcinogens,
it is helpful to briefly review the procedural history of that claim.
In moving for summary judgment, Long alleged that, during discovery, the
appellants attempted to “assign liability” for Ron’s lung cancer to his exposure to
alternative carcinogens, such as second-hand smoke, radon, and diesel exhaust.
Specifically, Long claimed that “[i]n the apportionment of liability,”39 the appellants
39
(Emphasis supplied).
20
bear the same burden that she does in assigning liability,40 and they cannot prove that
Ron had exposure to any of those substances. Then, in the argument section of Long’s
summary-judgment motion, she contended that, as to alternative carcinogens, the
appellants “must present actual evidence that a non-party was at fault.”41 But Long
also argued that, alternatively, if the trial court found that she was not entitled to
summary judgment, it should exclude any evidence that Ron was exposed to
alternative carcinogens under OCGA § 24-4-403 (“Rule 403”).42
In their response, the appellants explained that Long “mistakenly” believed that
they sought “to ‘assign liability’ to these alternative exposures . . . .” Indeed, they
claim that Long simply misunderstood their intentions. Nevertheless, the appellants
40
(Emphasis supplied). Although Long sought summary judgment as to any
attempt by the appellants to apportion fault with regard to alternative carcinogens, she
has never identified the specific non-party or parties to which she believed the
appellants might seek to allocate fault. Regardless, according to the appellants, they
have no intention of doing so.
41
(Emphasis supplied).
42
See OCGA § 24-4-403 (“Relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”). In its order, the trial court granted
Long’s request for summary judgment, so it did not also address this “alternative”
evidentiary request or engage in any Rule 403 analysis with respect to it.
21
argued that it was Long’s burden to prove causation as an essential element of her
toxic-tort claim. And after further discussing Long’s burden of proof, the appellants
contended that they are “entitled to show the jury through cross-examination of
[Long’s] experts that those experts failed to investigate and appropriately rule out
alternative causes of [Ron’s] injury and death.”43 Lastly, the appellants contended that
any ruling to exclude all evidence of alternative carcinogens was premature, as
discovery was still ongoing and responses to certain pre-trial motions were not yet
due.
In her reply, disregarding the appellants’ clarification that they were
not intending to present evidence of alternative carcinogens for purposes of assigning
liability to a non-party, Long reiterated her argument that, as to alternative
carcinogens, the appellants must satisfy the requirements of the apportionment statute
and present “actual evidence that [a] non-party was at fault.” Long also reasserted her
43
(Emphasis supplied). While the appellants argue that they should be allowed
to present evidence of Ron’s exposure to alternative carcinogens in their case-in-chief
and through cross-examination, their response to Long’s motion for summary
judgment indicated that they only intended to present evidence of alternative
carcinogens during cross-examination. Regardless, the trial court did not rule on those
evidentiary matters.
22
claim that, alternatively, the court should exclude evidence of alternative carcinogens
because it had the potential to mislead or prejudice the jury.
In the trial court’s four-sentence ruling related to alternative carcinogens, it
addressed the sole issue for which Long sought summary judgment—her claim that
the appellants failed to present sufficient evidence to satisfy the causation
requirement of the apportionment statute. Specifically, in its summary ruling, the
court agreed with Long, citing only OCGA § 51-12-33 (c) and a case that addresses
a trial court’s rulings on apportionment issues.44 Presumably, because the court found
that Long was entitled to summary judgment, it did not address her alternative
evidentiary arguments.
Turning to this appeal, the appellants explain, yet again, that they “do not seek
to apportion fault to any non[-]party with respect to these alternative carcinogens.”45
So, the appellants present no arguments that challenge the trial court’s apportionment
44
See Union Carbide Corp., 315 Ga. App. at 556 (1).
45
In their reply brief, the appellants note that, “[c]iting to the non[-]party fault
statute (OCGA § 51-12-33) and case law applying that statute, [Long] convinced the
trial court to grant ‘summary judgment on alternative carcinogens’ because [they] did
not have an expert opinion that those carcinogens were causative of [Ron’s] cancer.”
And yet again, the appellants maintain, as they have throughout this entire litigation,
that they “never sought to allocate fault to a non[-]party with respect to any
alternative carcinogens.”
23
ruling as to alternative carcinogens, and as a result, they have affirmatively
abandoned any such challenge on appeal.46 Nevertheless, the appellants maintain that
the trial court erred in “granting summary judgment on ‘alternative carcinogens.’”
Then, the appellants argue that they should be permitted to present evidence of
alternative potential causes for Ron’s lung cancer during its case-in-chief and through
cross-examination of Long’s experts. But despite the parties’ lengthy arguments as
to the admissibility of this evidence for purposes other than apportionment, their
arguments bear no relation to the order being appealed.47
As we have repeatedly explained, this is a Court for the correction of errors of
law, and “if the trial court has not ruled on an issue, we will not address it.”48 Indeed,
46
See Clack v. Hasnat, 354 Ga. App. 502, 506 (2) (b) (841 SE2d 210)
(2020)(“[T]he plaintiffs do not present any meaningful argument in support of such
a claim and have therefore abandoned it.”); Gunn v. State, 342 Ga. App. 615, 623-24
(3) (804 SE2d 118) (2017) (“[U]nder the rules of this Court, an appellant must
support enumerations of error with argument and citation of authority, and mere
conclusory statements are not the type of meaningful argument contemplated by our
rules.” (punctuation and footnote omitted)).
47
In its opening brief, the appellants acknowledge that “[t]he only reason the
trial court gave in its order is that [it] did not have an expert opinion that exposure to
these alternative carcinogens was ‘causative’ of [Ron’s] cancer and that [it] therefore
could not meet their burden of proving non[-]party fault under OCGA § 51-12-33.”
48
Zywiciel v. Historic Westside Vill. Partners, LLC, 313 Ga. App. 397, 402 (5)
(721 SE2d 617) (2011); see Mordica v. State, 319 Ga. App. 149, 154-55 (2) (736
24
without a ruling by the trial court on a particular issue, there is “nothing for this Court
to review upon appeal.”49 Here, as evidenced supra, Long’s motion for summary
judgment as to alternative carcinogens was based solely on preventing the appellants
from pursuing an apportionment defense, and the appellants acknowledge that the
trial court’s sole basis for granting summary judgment was their failure to meet the
causation requirement of the apportionment statute. And while they never had any
intention of seeking to apportion fault with respect to alternative carcinogens, the trial
court granted Long’s motion for partial summary judgment, which alleged that the
appellants did so. Simply put, the court’s order involved the grant of summary
judgment on an apportionment defense, not any evidentiary rulings unrelated to
apportionment, which makes sense if, as the appellants contend, discovery is not over
SE2d 153) (2012) (explaining that it is well settled that “this [C]ourt may not address
issues on appeal which were not addressed by the trial court, because this [C]ourt is
a court for the correction of errors and it does not consider matters which were not
raised and ruled on by the trial court.” (punctuation omitted)); Morman-Johnson v.
Hathaway, 312 Ga. App. 300, 301 (1) (718 SE2d 132) (2011) (same).
49
Mordica, 319 Ga. App. at 155 (2); see Nichols v. State, 285 Ga. 784, 785 (2)
(a) (683 SE2d 610) (2009) (“The trial court did not rule on the issue which [the
appellant] raises on appeal. In the absence of any ruling by the trial court on this
issue, there is nothing for this Court to review.” (punctuation omitted)); Willingham
v. Willingham, 261 Ga. 674, 674 (2) (410 SE2d 98) (1991) (“[S]ince appellee secured
no ruling by the trial court on this question, nothing is presented for our review.”).
25
and responses to motions in limine are not yet due.50 Thus, the appellants’ claims of
50
Apportionment is an affirmative defense that is subject to summary
judgment. See Clure, 302 Ga. at 58 (1) (b) (reversing the trial court’s grant of partial
summary judgment as to apportionment of fault); Guzman v. Link, 354 Ga. App. 463,
464 n.3 (841 SE2d 203) (2020) (characterizing a party’s apportionment request as an
affirmative defense); Brown v. Tucker, 337 Ga. App. 704, 716 (4) (788 SE2d 810)
(2016) (“The affirmative defense that the jury should apportion fault against someone
other than the defendant is no different analytically from the defense of contributory
negligence. Once the plaintiff establishes her prima facie case, the defendant seeking
to establish that someone else bears responsibility for the damages has the burden of
proving that defense.”); Levine v. Suntrust Robinson Humphrey, 321 Ga. App. 268,
271 (1) (740 SE2d 672) (2013) (reversing the grant of summary judgment with
respect to an apportionment claim). On the other hand, purely evidentiary matters,
such as whether the alternative-carcinogens evidence is admissible for purposes
unrelated to apportionment, are generally handled through a motion in limine or at
trial. Indeed, our Supreme Court has explained that “[a] motion in limine is a pretrial
method of determining the admissibility of evidence, as a party may secure a pretrial
ruling on the admissibility of evidence or a ruling prohibiting any reference to certain
evidence until its admissibility can be assessed in the context of the trial as it
unfolds.” Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995); accord
Dep’t of Tra nsp. v. Wallace Enters, 234 Ga. App. 1, 5 (6) (505 SE2d 549) (1998);
see Miller v. Lynch, 351 Ga. App. 361, 368 (3) (830 SE2d 749) (2019) (“If the trial
court decides to rule on the admissibility of evidence prior to trial, the court’s
determination of the admissibility is similar to a preliminary ruling on evidence at a
pretrial conference and it controls the subsequent course of action.” (punctuation
omitted)); Mark v. Agerter, 332 Ga. App. 879, 879 (775 SE2d 235) (2015) (“Because
a motion in limine is a pretrial determination of the admissibility of evidence, the
grant of a motion in limine excluding evidence is a judicial power which must be
exercised with great care.”).
26
error relate to purely evidentiary matters that have not yet been resolved by the trial
court, and under such circumstances, they present no error for this Court to review.51
For all these reasons, we affirm the trial court’s grant of partial summary
judgment to Long.
Judgment affirmed. Rickman and Brown, JJ., concur.
51
See supra notes 48-49 & accompanying text.
27