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Under Georgia Law, Appellate Court Rejects Defendant’s Daubert Challenge to Dr. Abraham and Allows Punitive Damage Claim Court of Appeals of Georgia, March 30, 2015

In this case, 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. It was alleged that Scapa used asbestos fibers in its manufacturing process and there was asbestos insulation on pipes and boilers. The plaintiffs also sued Union Carbide Corp., claiming that it supplied asbestos to non-party Georgia Pacific, which made joint compound that Roy used on his house. 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. Scapa subsequently appealed on multiple evidentiary rulings.
 
Scapa appealed on the issue of causation and claimed that the opinion on asbestos threshold levels from the plaintiffs’ expert, Dr. Jerrold Abraham, was founded on junk science. In denying this argument the court stated: “Consequently even as to the opinion about a hypothetical issue, Dr. Abraham’s methodology is founded on scientific investigation and is therefore sufficient under Daubert. And in any case, that opinion is not central to his further opinion that the exposure for which Scapa is responsible was a substantial cause of Knight's injury. Accordingly, the trial court did not err in admitting Dr. Abraham’s expert testimony and his opinion that Scapa is responsible for a substantial cause of that injury is more than sufficient under Georgia law.” Scapa also challenged the lower court’s denial of a hearing before admitting Dr. Abraham's testimony. The court of appeals noted that such a hearing is not always required under the relevant statute, and stated that they could not “conclude that the trial court was required to conduct a hearing on this issue.”

Scapa appealed the lower court submitting to the jury a punitive damages claim. The court of appeals found enough evidence to substantiate such a claim and held: “It is not essential to a recovery for punitive damages that the person inflicting the damages was guilty of willful and intentional misconduct. It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to the consequences. Here, there was evidence from which the jury could have found an entire want of care and conscious indifference to the consequences by Scapa.”
 
The appellate court also ruled on additional issues and held that Scapa failed to show a basis to overturn the jury’s apportionment of liability; there was sufficient evidence supporting the jury’s finding of liability against Scapa that warranted a denial of Scapa’s motion for a directed verdict; the lower court did abuse its discretion in allowing in certain corporate records and reports, and allowing the questioning of Scapa’s representative on those documents; that the plaintiff’s counsel’s statement during his opening that Scapa employed and exposed a lot of people to asbestos did not call for a mistrial; the inclusion and exclusion of certain jury instructions were either not an error or harmless error by the trial court; that the issue of the plaintiff improperly referring to the subject yarn as “asbestos yarn” was not preserved for review because the trial court gave curative instructions to the jury to which Scapa did not object; and Scapa failed to show any harm from the exclusion of its expert from testifying about and quantifying asbestos background levels.

Read the full decision here

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