Product Liability -- 2016

Scapa Dryer Fabrics, Inc. v. Knight   (Georgia Supreme Court)

"Any exposure" liability

The NAM filed another in a series of briefs challenging attempts by the trial bar to reduce or eliminate the standard legal requirement that a plaintiff prove that a defendant actually caused his or her injury. For exposure to hazardous materials, courts typically exclude unreliable expert testimony under the Daubert rule and require an expert to assess the extent of the exposure (amount, duration, toxicity). In this case, the trial court permitted a witness to testify that any exposure to a hazardous substance in excess of background levels is a substantial contributing factor in the development of the disease.

The NAM's amicus brief pointed out that Georgia intermediate courts differ in their approach to this kind of testimony, and that the exposure dose from a particular jobsite or work activity is the critical question in a case where a plaintiff has worked at multiple facilities over the course of his career. This question will recur with greater frequency in the years ahead as asbestos cases will increasingly involve this sort of speculative exposure testimony with no dose assessment. We argued that plaintiffs' experts must demonstrate, through a competent scientific assessment, that the plaintiff received a dose sufficient to cause the disease at issue.

Moreover, a trial judge should not perform the role of experts, namely assisting the jury in determining how much exposure from a particular workplace event is enough.

Loose standards relating to expert testimony will result in jury verdicts in low dose cases that are out of touch with medicine and tort principles.

On Sept. 8, 2015, the Georgia Supreme Court agreed with us to review this decision. We filed an amicus brief on the merits, arguing that the lower court allowed testimony without ever asking the witness to answer how much exposure the employee received, and was it enough to cause cancer. This failure does not allow a court to step in a decide for itself that the exposures were substantial and "not de minimis."

On July 5, 2016, the court ruled that inviting a jury to find that causation can be established by any exposure to asbestos does not fit the pertinent causation inquiry under Georgia law. The testimony should have been excluded by the trial judge because "it could only serve to confuse the jury on the issue of causation." This is a significant positive result for manufacturers in the Georgia courts. It will require more than a de minimis exposure before allowing expert testimony about it to go to the jury.

Related Documents:
NAM amicus brief on the merits  (October 21, 2015)
NAM amicus brief supporting review  (May 19, 2015)


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