1.Excerpts of “Plaintiff’s Motion To Establish Prima Facie Evidence of Physical Impairment” filed in Richard Ferrante and Paulette Ferrante v. Georgia Pacific Corporation, et al., No. 2003AB00174C, in the Superior Court of Fulton County, Georgia, and attached exhibits, filed August 29, 2005.
2.Excerpts of “Plaintiff’s Opposition to Application of Georgia Code Chapter 51-14″ filed in In re: All Asbestos-Related Personal Injury or Death Cases Filed by Baron & Budd, P.C. or to be Filed by Baron & Budd, P.C. in Fulton County, Georgia, No. 1998CV02384, in the Superior Courts of Fulton County, Georgia, and attached exhibits, filed August 31, 2005.
STATEMENT OF FACTS
Factual Background of the Ferrante Case
Richard Ferrante died on May 11, 2005 at the age of 58. His death certificate lists the cause of death as “malignant mesothelioma.” The diagnosis of malignant mesothelioma was initially made on August 6, 2001 by Dr. William Illig, a board-certified pathologist on staff at St. Francis Hospital in Tulsa, Oklahoma. Mr. Ferrante resided in Tulsa at the time of his diagnosis. On September 10, 2001, Mr. Ferrante visited Dr. Ramasuang Govidan, a medical oncologist at the Washington University School of Medicine in St. Louis, Missouri, to discuss his treatment options. Dr. Govidan’s records report that Mr. Ferrante “used to work in the break [sic] industry several years ago” and “had limited exposure to asbestos at that time.” Dr. Govidan referred Mr. Ferrante to a cardiothoracic surgeon, Dr. G. Alexander Patterson , whose medical records note “Asbestos exposure; positive exposure while in the military, worked as mechanic changing brakes.”
On May 23, 2003 – more than a year after his diagnosis and after his history of asbestos exposure was noted by his treating physicians – Mr. Ferrante and his wife filed suit in the Superior Court of Fulton County, Georgia against Daimler Chrysler Corporation, General Motors Corporation, Ford Motor Company, and 25 other manufacturers of asbestos-containing products, alleging that his exposure to products made and sold by the defendants caused his mesothelioma. In answers to interrogatories and in a videotaped deposition, Mr. Ferrante provided details of the places and manner in which he was exposed to the defendants’ asbestos-containing products. He also provided names and addresses of co-workers who could attest to his exposures.
The New Georgia Legislation Governing Asbestos and Silica Cases
On April 12, 2005, Georgia Governor Sonny Perdue signed into law asbestos and silica medical criteria legislation, codified at O.C.G.A. § 51-14-1 et seq. The legislation was passed in response to a perception of an asbestos litigation “crisis,” and resembles legislation previously enacted in Ohio and subsequently passed in Texas and Florida. The principal purpose of the legislation is to limit the ability of persons with asymptomatic asbestos-related injuries and persons whose causes of action were discovered by screenings funded by unions or law firms to maintain suit in Georgia courts. However, the legislation also establishes requirements for maintaining claims of asbestos-related malignancies in Georgia. The legislation requires a plaintiff claiming damages for an asbestos-related disease, including mesothelioma, to present “prima facie evidence of physical impairment” at an early stage of the claim. O.C.G.A. § 51-14-5(a)(2). For claims of asbestos-related malignancies, “prima facie evidence of physical impairment” means that
a board certified pathologist has made a diagnosis of pleural or peritoneal mesothelioma, or a diagnosis of cancer demonstrated by a medical report showing the diagnosis as a primary cancer, and has signed a report certifying to a reasonable degree of medical certainty that exposure to asbestos was a substantial contributing factor to the diagnosed cancer and that it was not more probably the result of causes other than the asbestos exposure revealed by the exposed person’s employment and medical histories.
O.C.G.A. § 51-14-2(15)(A). The statute contains an arguable ambiguity: does the provision requiring that the plaintiff provide a certification that asbestos was a “substantial contributing factor to the diagnosed cancer” apply to mesothelioma claims, or does it only apply to claims involving cancers other than mesothelioma? Plaintiffs maintain that the “substantial contributing factor” requirement does not apply to mesothelioma claims; had the Legislature intended the “substantial contributing factor” requirement to apply to mesothelioma claims, it could have said so. Plaintiffs’ position is supported by the undeniable fact that mesothelioma is universally considered to be a “signature” or “sentinel” disease; that is, the very diagnosis of mesothelioma itself implicates asbestos as the causal factor. In contrast, lung cancer and other types of asbestos-related cancers can be caused by other occupational or environmental factors, such as tobacco exposure. See this Brief infra at 23. On the other hand, defendants argue that the requirement that the board-certified pathologist certify that asbestos was a “substantial contributing factor” applies equally to mesothelioma claims. As Appellants point out in their brief at 8 n. 4, at least one Georgia trial court has ruled that the “substantial contributing factor” certification requirement does not apply in mesothelioma cases.
The legislation further sharply limits the available experts who may provide this “prima facie evidence of physical impairment.” It defines a “board certified pathologist” who may provide the required certification as “a qualified physician” holding a certification from the American Board of Pathology. O.C.G.A. § 51-14-2(5). In turn, the law defines “qualified physician” as a doctor who devotes “no more than 10 percent of his or her professional practice time in providing consulting or expert services in connection with actual or potential civil actions,” whose employer “earns no more than 20 percent of its revenues from providing such services,” and who receives payment from the exposed person or the person’s medical provider. O.C.G.A. § 51-14-2(17). The legislation thus effectively requires a plaintiff alleging an asbestos-related mesothelioma to provide a report from the original diagnosing pathologist diagnosing the disease; if the disease is missed by the treating pathologist but is subsequently diagnosed by a consultant who happens to derive a significant percentage of his or her income from providing “expert services in civil actions,” the victim is out of court, regardless of the qualifications and credibility of the expert. Defendants would go one step further and require the local treating pathologist to certify that asbestos is a “substantial contributing factor” in causing the mesothelioma, even though staff pathologists often have no specific expertise in asbestos-related diseases and do not typically make causation assessments in their hospital pathology reports.
The legislation expressly applies to cases pending as of April 12, 2005. O.C.G.A. § 51-14-5(a). It provides that any case pending on that date “shall be dismissed” without prejudice within 180 days (October 10, 2005) unless the trial court issues an order finding that the plaintiff “has established prima-facie evidence of physical impairment.” O.C.G.A. § 51-14-5(a)(2). In cases in which a plaintiff alleges a nonmalignant asbestos-related injury, the statute requires the plaintiff to file a medical report including x-ray and pulmonary function test results establishing a level of abnormality specified by the statute. O.C.G.A. § 51-14-2(15)(B). In mesothelioma cases such as Ferrante, the statute requires the plaintiff to file the certification from the treating pathologist diagnosing mesothelioma – and according to Defendants, identifying asbestos as a “substantial contributing cause” to the disease – by the 180-day deadline. O.C.G.A. § 51-14-2(15)(A).
Proceedings in Ferrante and Other Georgia Asbestos Cases in Response to the Legislation
In anticipation of the approaching October 10, 2005 deadline for establishing “prima-facie evidence of impairment,” plaintiffs in asbestos litigation in Georgia filed several pleadings. In Fulton County, where hundreds of claims of nonmalignant asbestos-related injury and 104 malignancy claims were pending, plaintiffs filed a comprehensive “Opposition to Application of Georgia Code Chapter 51-14.” In that pleading, plaintiffs first argued that the new legislation did not apply to many of the claims in Fulton County because the claims were governed by the substantive law of the states in which the injuries were sustained. Plaintiffs attached to that pleading a “Notice of Intent To Rely on Another State’s Law,” which specifically advised the defendants and the court that the Ferrante case, among others, is properly governed by Oklahoma law. Plaintiffs also argued that Chapter 51-14 cannot constitutionally apply to cases pending on the effective date of the act because it alters substantive rights that vested at the time that the injuries occurred. Because the Ferrante case was pending in Fulton County at the time of the filing of these omnibus pleadings (and in fact is specifically mentioned in the notice of intent to rely on another state’s law), these pleadings were intended to, and did, apply in the Ferrante case.
In addition, plaintiff filed a motion in the individual Ferrante case for an order certifying that the plaintiff had in fact complied with the new statutory requirement of establishing “prima-facie evidence of physical impairment.” The motion attached medical records, including the pathology report diagnosing mesothelioma from Dr. Illig (the staff pathologist at the hospital that treated Mr. Ferrante). It also attached an affidavit from Dr. Illig affirming (1) that “[a]sbestos is a known cause of mesothelioma,” (2) that he and his medical group derive less than 1 percent of their income from legal consultations, and (3) that he received payment for his work on Mr. Ferrante’s diagnosis from the hospital in the ordinary course of business. The motion additionally included a report from Dr. James Robb, a consulting pathologist from Boca Raton, Florida, who confirmed the diagnosis of mesothelioma and opined that the “inhalation of asbestos fibers, as documented by the work history in Mr. Ferrante’s case, is etiologically significant in the creation of malignant mesothelioma.” Dr. Illig is a “qualified physician” under the statute and affirmed the general relationship between asbestos and mesothelioma but did not attribute a cause in Mr. Ferrante’s case; Dr. Robb attributed Mr. Ferrante’s mesothelioma to asbestos but did not treat Mr. Ferrante and thus is not a “qualified physician” under the statute. The plaintiff in Ferrante argued that, given the medical evidence that mesothelioma is a “sentinel disease” for asbestos exposure and given the diagnosis of mesothelioma by a “qualified physician” as defined by the statute, the plaintiff had established “prima-facie evidence of physical impairment” as required by O.C.G.A, § 51-14-2(15)(A).
The plaintiffs in the 104 mesothelioma cases in Fulton County Superior Court filed motions similar to that filed in Ferrante. Chief Judge Downs granted the motions in 85 cases. See Ex. 9 to Brief of Appellants, at 2. In several cases, Judge Downs issued opinions in which she explained that she granted the motion based on her conclusion that O.C.G.A. § 51-14-2(15)(A) does not require a statement from a qualified physician that asbestos was a “substantial contributing factor” of a mesothelioma, but only requires such a showing in cases involving other types of cancer. See Order Granting Plaintiffs’ Motion To Establish Prima-Facie Evidence of Physical Impairment, Lane v. Georgia-Pacific Corp., No. 2003AB00234C (Oct. 6, 2005) (Ex. 11 to Brief of Appellants), at 2.
The Superior Court’s Order in Ferrante, and this Court’s Order Granting Interlocutory Review
As Appellants note in their brief at 6-9, the pleadings filed by the plaintiffs in Cobb and Fulton Counties generated multiple trial court orders interpreting O.C.G.A. Chapter 51-14 and evaluating the legislation’s constitutionality. The State and Superior Courts of Cobb County held a consolidated hearing on these issues on October 5, 2005. Judges Carlisle, Glover, Darden, Prodgers, Clayton, and Tanksley of Cobb County State Court issued identical orders ruling that because the statute required plaintiff to establish asbestos exposure as a “substantial contributing factor,” the statute adversely affected plaintiffs’ vested substantive rights and could not constitutionally be applied to claims pending at the time of its enactment. See Orders of Oct. 10, 2005, attached to Appellants’ Brief as Exs. 5, 6, and 7. Judge Collins of Cobb County State Court found that the new asbestos chapter unconstitutionally affects substantive rights retroactively, and added that the chapter “violates the special laws and due process provisions of the Georgia Constitution.” Order of October 10, 2005 in Odom v. Georgia-Pacific Corp., No. 01-A-4938-7 (Oct. 10, 2005), attached to Appellants’ Brief as Ex. 3, at 7; see also Appellants’ Brief, Ex. 4. On the other hand, Judges Downs and Newkirk of Fulton County found that the statute did not affect substantive rights but instead imposed only new procedural requirements on plaintiffs, and thus could be applied to pending cases.
In Ferrante, Judge Glover ruled that O.C.G.A Chapter 51-14 affects the substantive rights of victims of asbestos-related disease in that it requires them to produce prima facie evidence that asbestos was a “substantial contributing factor” in their injury, while prior Georgia law did not require plaintiffs to prove that the defendant’s causal relationship to the injury was “substantial.” As Judge Glover put it,
At the time plaintiffs’ claim vested in this case, liability would attach if the asbestos exposure were in fact a mere contributing cause of the medical condition; that is, liability would attach even if the exposure were not in fact a substantial contributing cause. Because O.C.G.A. Ch. 51-14 would add such an element to an accrued and vested claim, the statute cannot be constitutionally applied in this case.
R-2839-43; Appellant’s Brief, Exh. 1, at 3 (emphasis in original). Because Judge Glover determined that the new asbestos legislation would not apply at all in the Ferrante case, she did not reach plaintiffs’ contentions that Georgia law did not apply, that the requirement that plaintiffs make a prima facie showing that asbestos is a “substantial contributing factor” does not apply to mesothelioma cases under the terms of the statute, and that the asbestos legislation is otherwise unconstitutional.
The Cobb County judges, including Judge Glover in the Ferrante case, timely certified their orders for interlocutory review. This Court then granted the applications for interlocutory review in each of the six cases certified by the Cobb County trial courts. In Ferrante, the Court requested the parties to address the following question:
Whether the trial court erred in holding OCGA § 51-14-1 et seq. unconstitutional as applied to respondents’ claims.
Letter of Clerk of Supreme Court of Georgia dated Dec. 13, 2005 (emphasis added).
ARGUMENT AND CITATION OF AUTHORITY
THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE NEW GEORGIA ASBESTOS LEGISLATION CANNOT CONSTITUTIONALLY APPLY TO FERRANTE’S CLAIMS BECAUSE IT IMPOSES A NEW SUBSTANTIVE REQUIREMENT ON A VESTED CAUSE OF ACTION.
The Statute Changes the Substantive Rights of Mesothelioma Plaintiffs by Increasing the Standard for Proving Causation.
Under Georgia law as it existed prior to the passage of the asbestos legislation, a plaintiff in a mesothelioma case, as in any other negligence or products liability action, was required to show only that exposure to the defendant’s product was a “contributing cause” of the injury. John Crane, Inc. v. Jones, 278 Ga. 747, 604 S.E.2d 822 (2004). In John Crane, the plaintiff alleged that her deceased husband had contracted mesothelioma as a result of contact with the defendants’ asbestos products. The case proceeded to trial against only John Crane, and the jury found John Crane liable and awarded damages in the amount of almost $2 million. 278 Ga. at 748, 604 S.E.2d at 823. In this Court, John Crane argued that the trial court erred by refusing Crane’s request to charge the jury that in order to be found liable, Crane’s tortious conduct must be a “substantial contributing factor” to the decedent’s injuries. Instead, the trial court’s charge required only that the defendant’s tortious conduct be a “contributing factor” in bringing about the plaintiff’s damages.
This Court emphatically rejected John Crane’s argument, noting that “requiring that [a defendant’s] contribution be ‘substantial’ is not in accord with the longstanding law of Georgia.” 278 Ga. at 748, 604 S.E.2d at 824. The Court recognized that Crane’s proposal would significantly heighten the plaintiff’s burden under Georgia substantive law: “Once the term ‘substantial factor’ is employed in the general negligence law vocabulary, there is the danger that it will be used not only to describe a general approach to the legal cause issue, but will turn into a separate and independent hurdle that the plaintiff will have to overcome in addition to the standard elements of a claim of negligence.” 278 Ga. at 751, 604 S.E.2d at 825-26. It rejected the policy reasons advanced by Crane for this substantive change, observing that defendants in mesothelioma cases can still escape liability by showing that the plaintiff’s exposure to their products was de minimis and finding that the causation standard in Georgia “will neither subject defendants like John Crane to unjust liability nor open the floodgates of asbestos litigation.” 278 Ga. at 750, 751; 604 S.E.2d at 825, 826.
The new asbestos statutes, however, require plaintiffs in mesothelioma cases to submit prima-facie evidence that asbestos exposure was a “substantial contributing factor” in causing the plaintiffs’ asbestos-related injury. As Judge Glover observed, at “the time plaintiffs’ claim vested in this case, liability would attach if the asbestos exposure were in fact a mere contributing cause of the medical condition; that is, liability would attach even if the exposure were not in fact a substantial contributing cause.” R-2839-43; Appellant’s Brief, Exh. 1, at 3. She concluded that because “O.C.G.A. Ch. 51-14 would add such an element to an accrued and vested claim, the statute cannot be constitutionally applied in this case.” Id.
Appellants argue that the statute does not change the causation standard approved by this Court in John Crane because the statute requires only that the plaintiff’s cumulative asbestos exposure substantially contributed to the plaintiff’s injury and not that any particular defendant’s product was a substantial contributing factor. But this distinction does not alter the reality that the statute requires a prima facie showing of causation higher than that required by Georgia substantive law. Even if a mesothelioma plaintiff could not produce evidence that asbestos exposure was a “substantial contributing factor” in causing mesothelioma, the plaintiff would still be entitled to recover under prior Georgia law if he or she could show that a particular defendant’s product was merely a “contributing factor” in the development of the injury. But application of the higher standard in the statute would prevent such a plaintiff from pursuing his or her claim.
As the Court’s opinion in John Crane foreshadowed, by its inclusion in the new asbestos statute the “substantial contributing factor” standard has “turn[ed] into a separate and independent hurdle that the plaintiff will have to overcome in addition to the standard elements of a claim of negligence.” 278 Ga. at 751, 604 S.E.2d at 825-26. As Judge Glover found, the Georgia Constitution prevents the legislature from erecting new hurdles of this kind in pending cases.
Because the Statute Affects Substantive Rights, It Cannot Be Constitutionally Applied in Cases Pending on the Date the Law Was Changed.
This Court has noted that the Constitution “forbids passage of retroactive laws which injuriously affect the vested rights of citizens.” Recycle and Recover, Inc. v. Georgia Bd. of Natural Res., 266 Ga. 253, 254, 466 S.E.2d 197, 199(1996); see also Ga Const. art 1, sec. 1, para. 10 (“No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed.”). “In a negligence case the substantive rights of the parties are fixed at the time of the injury or event on which liability depends.” F.H. Ross & Co. v. White, 224 Ga. 324, 325, 161 S.E.2d 857, 859 (1968).
This Court has consistently refused to apply laws that affect substantive rights to cases pending on the date of enactment. In Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980), after the plaintiff sued the defendant for alienation of affections, the legislature passed a statute that abolished that cause of action. The Court held that the act could not constitutionally apply to the plaintiff’s pending action.
The appellee’s right to bring an action for alienation of affections was a substantive right which had vested at the time of the repeal of this cause of action by the General Assembly. Therefore, the portion of the Family and Domestic Relations Law which made the repeal of the cause of action for alienation of affections retrospective as to pending actions is unconstitutional.
245 Ga. at 754, 267 S.E.2d at 26.
In Polito v. Holland, 258 Ga. 54, 365 S.E.2d 273 (1988), the court considered whether a statute that permits the admission of evidence of collateral payments to the plaintiff could be applied to a case that was pending on the date that the statute took effect. The court reasoned that although the new statute was phrased to work “a procedural (evidentiary) change of law because evidence of collateral benefits becomes admissible whereas it was formerly considered immaterial,” it effectively “works a substantive change in the law since damages may, under the statute, be reduced by collateral benefits, contrary to prior law.” 258 Ga. at 57-58, 365 S.E.2d at 275. The Court thus held that the statute “shall be given prospective effect only.” Id.
In Seaboard Air Line Ry. Co. v. Benton, 175 Ga. 491, 165 S.E. 593, 597 (1932), the Court similarly observed that regardless of whether a legislative act is couched in “procedural” or “substantive” terms, it cannot be retroactively applied if it affects a party’s “vested rights.” In Seaboard, after the plaintiff brought suit against a railroad for fatal injuries sustained in a railroad crossing collision, the legislature passed a statute providing that proof of injury shall be “prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury.” 165 S.E. at 594. The plaintiff argued, and the court of appeals held, that the statute was “remedial” and “procedural” only, and was properly applied in the pending case. This Court, however, rejected the argument. It held that regardless of how the statute was characterized, it could not be retroactively applied if it affected vested substantive rights: “We dare say that no respectable authority can be found in this country for the proposition that such a law, whether called a remedial statute, or a statute upon the admissibility of testimony in causes, could be retroactive, and could be so applied as to defeat the vested rights of a citizen.” 165 S.E. at 597, quoting Jones v. Oemler, 110 Ga. 202, 35 S.E. 375, 382 (1900). Because the law gave to the plaintiff a “valuable right” in the form of a legal presumption of negligence and placed a heightened “‘burden’ of proof on the defendant to rebut the legal presumption,” 165 S.E. at 597, the law affected the vested substantive rights of the defendant and should not have been applied. The Court thus reversed the judgment for the plaintiff. Id.
As Judge Glover found, the new asbestos legislation places a heightened burden of proving causation on plaintiffs in mesothelioma cases than that imposed on such plaintiffs by preexisting Georgia law. Because the legislation impairs a “valuable right” of the plaintiffs, it cannot constitutionally apply in cases pending on its effective date.
Appellants contend that the requirement of presenting prima facie evidence of substantial contributing factor in Chapter 51-14 is analogous to the statutory requirement in professional negligence cases that a plaintiff file an expert’s affidavit along with the complaint. Appellants’ Brief at 18, citing O.C.G.A. § 9-11-9.1. They note that in Precision Planning, Inc. v. Wilson, 193 Ga. App. 331, 387 S.E.2d 610 (1989), the court characterized the professional negligence affidavit requirement as procedural and held that it could be retroactively applied to require dismissal of a plaintiff’s case. 193 Ga. App. at 332, 387 S.E.2d at 611. But Appellants ignore the crucial language by the Court in Precision Planning recognizing that the statute involved in that case “alters neither the standard of care to be applied nor the measure of recovery.” Id. In contrast, Chapter 51-14 clearly does alter the substantive requirements for making a legally viable claim. The new requirement that a plaintiff in a mesothelioma case show that asbestos is a “substantial contributing factor” is simply not analogous to the expert affidavit requirement in professional malpractice cases. Judge Glover correctly determined that the new requirement cannot be retroactively applied.
The Severability Provision Is Not at Issue in This Case, Because the Unconstitutional Portion of the Statute Is the Only Provision That Affects the Plaintiff’s Claim.
Finally, Appellants complain that because Chapter 51-14 contains a severability clause, the trial court should have dismissed Mrs. Ferrante’s case even if it correctly determined that the statutory requirement that Mrs. Ferrante show that asbestos was a “substantial contributing cause” of her husband’s fatal injury cannot constitutionally apply. They suggest that the proper consequence of the court’s ruling would be simply to delete the word “substantial” from the statute, and assert that Mrs. Ferrante did not provide a certification that asbestos was even a “contributing cause” of her husband’s mesothelioma. Appellants’ Brief at 27-31.
Appellants’ request from this Court for a dismissal rather than a simple answer to the certified question fails for at least two reasons. First, it is by no means clear that Mrs. Ferrante did not provide the certification that the statute, as amended by Appellants, required. Mrs. Ferrante filed a Motion To Establish Prima Facie Evidence of Physical Impairment to which she attached an affidavit from a “qualified physician” (pathologist Dr. William Illig) attesting to his diagnosis of pleural malignant mesothelioma and averring that “[a]sbestos exposure is a known cause of pleural malignant mesothelioma.” Whether this showing complies with the statute as redacted by Appellants is a matter of statutory interpretation not encompassed by the issue certified by the trial court and this Court.
Second, contrary to Appellants’ suggestion, the intent of the legislation regarding the constitutionally offensive provision cannot be divined with any reasonable degree of confidence. The very point of the provision may have been to require plaintiffs to produce evidence of more than a slight or incidental causal relationship between asbestos and the alleged illness. Because of the strong relationship between asbestos and mesothelioma, requiring a formal certification of contributing causation may have been seen as an empty exercise. Appellants request that the Court do more than excise an independently operational portion of a statute; they ask that the Court strike a single word and apply the remainder of the provision. Such an exercise would distort the meaning of the statute and is required neither by the severability provision itself nor by any of the cases cited by Appellants.
THE STATUTE IS INAPPLICABLE TO THIS CASE FOR REASONS INDEPENDENT OF THOSE ADDRESSED IN THE RULING.
Plaintiff Asserted Non-Constitutional Objections to Application of Chapter 51-14.
Even if Appellants could make a more persuasive case for the constitutionality of applying Chapter 51-14 to this case, the plaintiff’s other valid objections would preclude application of the statute. In addition to her constitutional objections to application of the new asbestos statutes to her claim, plaintiff advanced other compelling reasons why the new statutory requirement that she provide a qualified physician’s statement that asbestos was a “substantial contributing factor” to the fatal injury does not apply to her claim. First, she argued that, because her deceased husband developed and was diagnosed with his asbestos-related injury in Oklahoma, Georgia substantive law does not apply. See Exhibit 2 to this Brief (Notice of Intent to Rely on Another State’s Law). Under Georgia’s choice of law rules, the substantive law to be applied in a tort case is the “lex loci delicti” – the law of the jurisdiction where the “injury was sustained” or “where the last event necessary to make an actor liable for an alleged tort takes place.” Risdon Enters. v. Colemill Enters., 172 Ga. App. 902, 903, 324 S.E.2d 738, 740 (1984). The jurisdiction that satisfies both tests is unquestionably Oklahoma. Accordingly, plaintiff properly filed notice of her intent to rely on Oklahoma substantive law pursuant to O.C.G.A. § 9-11-43.
Second and in the alternative, plaintiff moved the court to rule that she had complied with the requirement of establishing prima-facie evidence of physical impairment as required by O.C.G.A. § 51-14-5(a)(2). The documents that plaintiff supplied to the trial court did not include a statement that asbestos was a “substantial contributing factor” in the development of her decedent’s mesothelioma. Plaintiff effectively argued, however, that the statute in fact does not require plaintiffs claiming mesothelioma to assert that asbestos was a substantial contributing factor in the disease. Other plaintiffs made the identical argument in Fulton County, and Judge Downs accepted the argument, ruling that the statute does not require plaintiffs in mesothelioma cases to supply a statement that asbestos was a “substantial” contributing cause of the disease. See Order Granting Plaintiffs’ Motion To Establish Prima-Facie Evidence of Physical Impairment, Lane v. Georgia-Pacific Corp., No. 2003AB00234C (Oct. 6, 2005) (Ex. 11 to Brief of Appellants), at 2 (“After considering evidence regarding the causes of malignant mesothelioma and the intent of the legislature, the court finds that the ‘report’ requirement found in the final portion of O.C.G.A. § 51-14-2(15)(A) applies only to ‘diagnosed cancers’ other than malignant mesothelioma.”).
Judge Downs’ decision is supported not only by the medical authorities cited in plaintiff’s motion, but by uncontradicted decisions in other jurisdictions holding that the causal association between asbestos and mesothelioma is so strong that as a medical/legal matter, a diagnosis of mesothelioma supports at least a presumption that asbestos is implicated. See, e.g., Torrejon v. Mobil Oil Co., 876 So.2d 877, 892-93 (La. Ct. App. 2004) (“The causal link between asbestos exposure and mesothelioma contraction has been demonstrated to such a high degree of probability, while at the same time few if any other possible causes have been identified, that a universal causal relationship has been recognized; to wit: if A is diagnosed as having mesothelioma and A was exposed to asbestos, A’s exposure to asbestos is recognized to be the cause of A’s mesothelioma.” ); In re Seventh Judicial Dist. Asbestos Litig., 191 Misc.2d 625, 631, 744 N.Y.S. 304, 308 (N.Y. Sup. Ct. 2002) (“Although there may be other causes of lung cancer, mesothelioma has been described as the ‘signature disease for asbestos exposure’ and may result from a relatively low level of exposure”) (quoting Asbestos Litigation in the U.S.: A New Look at an Old Issue, Rand Institute of Civil Justice, August, 2001); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1402 n. 33 (D. Or. 1996) (“A signature disease is one so associated with a particular cause that the presence of the disease presumes that cause. For example, mesothelioma is a signature disease for asbestos causation.”).
Apart from Its Retroactivity, the New Georgia Asbestos Legislation Is Unconstitutional as Applied to Ferrante’s Claims in Additional Ways.
As Appellants concede, in response to the arguments made by Mrs. Ferrante and her co-plaintiffs in Cobb County, Judge Beverly Collins ruled that O.C.G.A. Ch. 51-14 violated several provisions of the Georgia Constitution in addition to the prohibition against retroactive laws. Judge Collins found that Chapter 51-14 is a “special law” in violation of Ga. Const. art. 3, sec. 6, para. 4(a) because “[g]eneral legislation already exists to cover negligence cases” and to exempt asbestos and silica cases from the operation of this general law “is unreasonable.” Order of October 10, 2005 in Odom v. Georgia-Pacific Corp., No. 01-A-4938-7 (Oct. 10, 2005), attached to Appellants’ Brief as Ex. 3, at 6. In the words of Judge Collins, “The Court cannot find . . . anything reasonable in setting asbestos cases apart simply because there are more plaintiffs.” Id. at 5.
Judge Collins also found that Chapter 51-14 violates “fundamental due process rights” guaranteed by the state and federal constitutions by arbitrarily impairing, if not denying, plaintiffs a reasonable opportunity to prove their claims by limiting the doctors who can testify in support of a claim. Id. As Mrs. Ferrante pointed out in her omnibus pleading, the chapter’s definition of “qualified physician” – and in particular, its requirement that such a physician derive not more than 10 percent of his or her professional income from legal consulting – excludes virtually the entire community of medical doctors who actually have the experience and competence to diagnose and attribute causation in a mesothelioma case. A statute that effectively prevents plaintiffs with rare diseases from using consulting experts to substantiate their claims is worse than ill-conceived; it is arbitrary, unreasonable, and, as Judge Collins found, “a breach of substantive due process.” Order of Oct. 10, 2005, at 6.
Judge Glover did not reach these constitutional claims, and reversal of her decision on the constitutionality of applying the “substantial contributing factor” requirement to pending cases would not decide, or affect the viability of, these alternative contentions. These objections provide independent grounds for Judge Glover’s correct determination that chapter 51-14 cannot properly be applied in this case.
For the foregoing reasons, Appellee respectfully urges the Court to sustain the ruling of Judge Glover that O.C.G.A. § 51-14-1-10 cannot be applied to cases pending in Georgia at the time that the Act became effective.
Respectfully submitted this 20th day of March, 2006.
- ↑ As Appellants point out in their brief at 6 n.1, this case was originally filed in Fulton County and was transferred to Cobb County in September of 2005. Not all pleadings filed in Fulton County have yet been transferred to Cobb County, and those pleadings are not yet a part of the record filed in this Court. Plaintiffs have filed a motion to supplement the record with those pleadings, and have attached pertinent portions of the relevant pleadings and exhibits to this brief.
- ↑ Exhibit 1, Plaintiff’s Motion To Establish Prima Facie Evidence of Physical Impairment (death certificate).
- ↑ Id.
- ↑ Exhibit 1 (pathology report of Dr. Illig).
- ↑ Exhibit 1 (office record of Dr. Govidan).
- ↑ Id.
- ↑ Exhibit 1 (office record of Dr. Patterson).
- ↑ R 8-40.
- ↑ See Ohio Rev. Code Ann. §§ 2307.91-2307.98 (eff. Sept. 2, 2004); Fla. Stat. §§ 774.201-774.209 (eff. July 1, 2005); Tex. Civ. Prac. & Rem. Code §§ 90.001-90.010 (eff. Sept. 1, 2005).
- ↑ While Appellants may dispute this characterization, the reality that nonmalignant cases were the primary target of the legislation is made clear by the amicus curiae brief filed by the American Insurance Association, et al. That brief consists almost entirely of an attack on the effect of claims of the “non-sick” and “unimpaired” on asbestos litigation, despite the fact that this case involves mesothelioma diagnosed by a treating physician.
- ↑ Exhibit 2, Plaintiff’s Opposition to Application of Georgia Code Chapter 51-14.
- ↑ Exhibit 2 (Notice of Intent To Rely on Another State’s Law).
- ↑ Exhibit 1, Plaintiff’s Motion To Establish Prima Facie Evidence of Physical Impairment.
- ↑ Exhibit 1 (pathology report of Dr. Illig).
- ↑ Exhibit 1 (affidavit of William P. Illig, M.D.).
- ↑ Exhibit 1 (report of James A. Robb, M.D.).
- ↑ It bears repeating, however, that Judge Downs also ruled as a matter of statutory construction that the requirement of establishing that asbestos is a “substantial contributing factor” of an alleged injury does not apply in mesothelioma cases.