On July 6, 2016, the Supreme Court of Georgia issued 24 opinions, of which six are within the scope of our coverage. (The Court issued 15 opinions on June 20, 2016, but none of them were within the scope of our coverage.) Summaries of the decisions and the cases are set forth below.
S15G1278 Scapa Dryer Fabrics, Inc. v. Knight, et al.
In a unanimous opinion by Justice Blackwell, with Justices Benham and Hunstein concurring in the judgment only, the Georgia Supreme Court held that the testimony of a plaintiff’s expert in an asbestos mesothelioma case was improperly admitted. That testimony, to the effect 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….” The Court reversed the divided decision of the Georgia Court of Appeals.
Roy Knight was an independent contractor who worked at Scapa Dryer Fabrics’ Waycross plant “on multiple occasions” between 1967 and 1973. Forty years later, he was diagnosed with mesothelioma, and he and his wife sued Scapa claiming that it was responsible. At the plant, when Scapa used yarn containing asbestos, asbestos fibers were released into the air and picked up in the ductwork. In support of his case, Knight presented the testimony of Dr. Abraham, a pathologist to establish causation. That testimony is the subject of the decision.
The trial court entered judgment on a jury verdict in the Knights’ favor in the amount of $4 million, and the Court of Appeals affirmed in a divided decision, with three judges concurring in the judgment only as to Division 2, which related to expert testimony.
Dr. Abraham offered a cumulative exposure theory to support causation in his testimony. He said exposure to asbestos in excess of a background amount builds up to a cumulative exposure that might result in mesothelioma. The Court explained that, according to Dr. Abraham’s testimony, “each exposure in excess of the background is a contributing cause of the resulting mesothelioma, regardless of the extent of the exposure.”
The Supreme Court noted that former O.C.G.A. § 24-9-67.1, which was carried forward into the new Evidence Code at § 24-7-702(b), makes the trial court a gatekeeper for expert testimony. In so doing, the trial court is to look at the expert’s qualification, the reliability of the testimony, and its relevance. Here, the question was whether Dr. Abraham’s testimony would “assist the trier of fact … to understand the evidence or to determine a fact in issue.” O.C.G.A § 24-9-67.1(b).
The Supreme Court held that Dr. Abraham’s testimony “that any exposure to asbestos at the Waycross facility was a cause of Knight’s mesothelioma, regardless of the extent of exposure” was not helpful to the jury. The Court explained that, while substantial exposure was not required, a de minimis contribution would not be sufficient to establish causation. Dr. Abraham’s testimony suggested that “any exposure beyond background” would be enough. The Court noted that courts throughout the country have conditioned cumulative exposure testimony on a showing of “reliable data sufficient to show the requisite exposure.” Because Dr. Abraham did not “cast his ultimate opinion on causation (as he presented it to the jury) in those terms,” it was error to admit his testimony.
S15G1293, S15G1307 State of Georgia, ex rel. Hudgens v. Sun States Insurance Group, Inc.
In these cases involving the liquidation of an insurance company, the Georgia Supreme Court unanimously held that the Court of Appeals lacked jurisdiction over the State’s appeal from the denial of its assertion of sovereign immunity. Following Rivera v. Washington, 298 Ga. 770, 784 S.E. 2d 775 (2016), the Court noted that such appeals cannot proceed as a direct appeal, but must be submitted through the interlocutory appeal procedure of O.C.G.A. § 5-6-34(b).
S15G1446 Zarate-Martinez v. Enchimendia, et al.
In a unanimous opinion by Justice Melton, the Georgia Supreme Court rejected a variety of constitutional challenges to the portion of O.C.G.A. § 24-7-702(c)(2)(A) and (B) that require experts in medical malpractice actions to have been in active practice or serve as a faculty member teaching in the area for at least three of the past five years. The Court concluded that, while the affidavits of two of the plaintiffs’ experts were properly struck, a remand was necessary for the trial court to reconsider the striking of the affidavits of the third expert. In addition, the Court vacated the decision of the Court of Appeals.
The Supreme Court vacated the decision of the Court of Appeals because the appeal raised constitutional issues that were within the Supreme Court’s exclusive jurisdiction. With respect those constitutional challenges, the Supreme Court held that § 24-7-702(c)(2)(A) and (B) did not violate the substantive due process, jury trial right, separation of powers provisions of the 1983 Georgia Constitution and that the law did not grant special privileges or immunity or serve as a special law. In particular, the Court found that there is nothing vague in the requirement of active practice given that such practice had to be “with sufficient frequency to establish an appropriate level of knowledge, as determined by a judge.” The requirement to practice or teach satisfies rational relationship scrutiny because it is designed to serve “the legitimate government goal of ‘reduc[ing] the cost of liability for health care providers and ensur[ing] citizens continued access to care.”
With respect to the affidavits offered by the plaintiff, the Supreme Court found no abuse of discretion with respect to one that did not address the practice or teaching standard. Two other affidavits, both from a Dr. Hendrix, were improperly excluded by the trial court. Drawing on Dubois v. Brantley, 297 Ga. 575, 584-85, 775 S.E. 3d 512 (2015), in which it said that the expert need not have “actually performed or taught the very procedure at issue,” the Court found that the affidavit could not be struck simply because it did not say that the witness had performed the procedure at issue, here, an open laparoscopic tubal ligation.
The Supreme Court vacated the trial court’s dismissal of the lawsuit and remanded “with the direction that [the trial court] reconsider the testimony of Dr. Hendrix in a manner that is consistent with this Court’s decision in Dubois.”
S15G1571 Doctors Hospital of Augusta, et al. v. Alicea, Administratrix
In a unanimous opinion by Justice Nahmias, the Georgia Supreme Court affirmed the trial court’s denial of summary judgment to a hospital and a doctor on claims arising from their actions which were alleged to be not in compliance with an Advance Directive for Health Care. In so doing, the Court outlined the basis for immunity claims under the law. It affirmed the decision of the Court of Appeals, “endors[ing] much” of what it said, “although we think that the court skipped over one important point.”
Alicea’s grandmother, Bucilla Stephenson, executed an Advance Directive appointing Alicea as her agent. As the Directive stated and the Court noted, the effect of such a directive “is to ensure that in making decisions about a patient’s health care, it is the will of the patient or her designated agent, and not the will of the health care provider, that controls.” Stephenson told Alicea that she did not want to be placed on a ventilator.
Stephenson was admitted to the hospital with a serious medical condition, and Alicea furnished the hospital with that Advance Directive. Alicea told them that Stephenson did not want to be intubated, be subjected to heroic measures, or have CPR performed. When contacted by the doctor, Alicea consented to a computed tomography scan and, subsequently, to a right chest thoracentesis to drain Stephenson’s lung infection. A few days later, Alicea consented to a surgical procedure without having been told that the procedure would require intubation and the use of a ventilator. Two days later, though, at about 4:00 a.m., fearing respiratory failure, the doctor ordered life-prolonging intubation, without contacting Alicea.
In pertinent part, the Georgia Advance Directive Act puts the power to make decisions about medical care in the hands of the declarant, if able to understand the nature of the procedure, or the agent. The 4:00 a.m. intubation was a decision that Alicea was entitled to make because her grandmother was unable to make that decision for herself. The Court noted that, if the health care provider is “unwilling” to comply with an agent’s direction for medical, moral or other reasons, it must “promptly inform” the agent of the unwillingness to comply and “provide reasonably necessary consultation and care” in connection with a transfer of care. It explained, “But the unwilling provider is not entitled to then make the health care decision for the patient himself, or to just walk away.”
The Act provides immunity to a health care provider “who acts in good faith reliance on any direction or decision by the health care agent.” O.C.G.A. § 31-32-10(a). Subsections of that provision specify the circumstances in which immunity will apply. The Court rejected the contention that “the General Assembly intended to broadly immunize health care providers for ‘failure to comply’ with the directives of health care agents.” Rather, good faith reliance is required for any claim of immunity, which must also fit into one of the safe-harbors to be valid.
The Court noted that the Court of Appeals did not discuss reliance. It explained, “What is critical, in our view, is that a provider claiming to have acted in ‘good faith reliance’ on the agent’s direction or decision can show that he acted in dependence on that direction or decision, not without reference to the agent’s wishes.” (emphasis in original) A provider who is aware of what the agent has decided can either comply with that decision or follow the statute if unwilling to do so. But, “when the health care provider makes the patient’s health care decisions on his own, without relying in good faith on what the patient’s agent directed, the provider must defend his actions without the immunity given in OCGA § 31-32-10(a).”
In the underlying case, there was, at the very least, a genuine issue of material fact, i.e., whether the doctor was acting “in honest dependence” on Alicea’s decisions. That precluded the entry of summary judgment in favor of the hospital and the doctor on immunity grounds.
S16A0367 State of Georgia, et al. v. International Keystone Knights of the Ku Klux Klan, Inc,
In a unanimous opinion by Justice Blackwell, the Georgia Supreme Court held that it did not have jurisdiction over the Department of Transportation’s appeal from a Circuit Order reviewing the Departments rejection of a request by the Klan to adopt a portion of State Route 515. The trial court rejected the Department’s claims of sovereign immunity and found the Department’s rejection to be an unconstitutional infringement of the Klan’s right to free speech and precluded it from denying an application based on “public concern related to a group’s history of civil disturbance,” without actually ordering the Department to approve the Klan’s application. The Department filed notice of appeal.
In pertinent part, the Appellate Practice Act requires an application to appeal from “decisions of the superior courts reviewing decisions of … state … administrative agencies.” O.C.G.A. § 5-6-35(a)(1). The Court noted, “Appeals in cases to which OCGA § 5-6-35(a)(1) applies must come by timely application, and if they come instead by a notice of appeal, the appellate court is without jurisdiction and must dismiss the appeal.”
The Court held that the denial of the Klan’s application was a “decision” of a “state administrative agency.” It distinguished between agency determinations of a legislative nature, which are prospective and general in application, and agency determinations of an adjudicative nature, which are immediate and specific in application and commonly look at the facts of particular parties and their activities. Decisions within the scope of O.C.G.A. 5-6-35(a)(1) are ones that involve “[t]he adjudicative function.” Thus, while no application is needed for an appeal in cases involving either executive or legislative determinations, an application for discretionary review is required for an appeal in cases involving agency determinations of an adjudicative nature.
The Court then held that “it is difficult” to see the Department’s denial of the Klan’s application to participate in the Adopt-A-Highway program “as anything but adjudicative in nature.” The Department’s action was as to a specific application and had “immediate and particular consequences,” and it did not constitute a rule or general statement of policy. It did not matter that the Department’s action was not marked by administrative procedural formality. Likewise, the substance of the proceeding below, which “amounted to a review of a decision to deny a particular Adopt-A-Highway application,” controlled, not the precise nature of the claims made.
The Supreme Court also noted that, to the extent the appeal was from the denial of sovereign immunity, it should have proceeded on an interlocutory basis, not by direct appeal. See Rivera v Washington, 298 Ga. 770, 784 S.E. 2d 775 (2016). But, because the trial court ruled on summary judgment and entered an injunction against the Department, the Department’s appeal might proceed.
Finally, the Supreme Court noted that, insofar as the trial court concluded that the program does not implicate only government speech, it may have decided in a way “inconsistent” with Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (2015), which was decided while the case was pending on appeal. It expressed no opinion on “whether the principles set forth in Walker apply equally to the Georgia Constitution and, if so, whether the decision of the trial court actually is inconsistent with Walker.”
S16A0451 Moreno v. Smith
In a unanimous opinion by Justice Blackwell, the Georgia Supreme Court reversed a trial court’s grant of partial summary judgment and reversed and vacated the trail court’s judgment on a claim of breach of contract with respect to a piece of property. That property was owned in half by Moreno and half by her mother. Moreno’s mother gave her a half interest and agreed to sell her the other half interest for %75,000, payable in $00 monthly installments. When Moreno made no payments, he mother filed suit for breach of contract and for an accounting.
The trial court entered partial summary judgment in favor of Moreno’s mother on the contact claim, rejecting Moreno’s contention that the contract was a sham that allowed her mother to “demonstrate an interest in the property and that she was earning income from it.”
As the Supreme Court noted, a mutual meeting of minds is essential to the formation of a binding contract. It pointed to Farnsworth’s treatise on Contracts for the proposition that, “[I]n those unusual instances in which one intends that one’s assent have no legal consequences[,] [u]nder the objective theory, a court will honor that intention if the other party has reason to know it. And it will honor it if the other party actually knows it.” (emphasis in original). And, while parol evidence cannot vary the terms of a valid written agreement, it can be used to show that no valid agreement was reached.
Moreno’s evidence created a genuine issue of material fact as to the existence of a binding contract that could not be resolved on summary judgment. That required the reversal of partial summary judgment and the related judgment against Moreno on the breach of contract claim. In addition, without a contract, there was no basis for ordering an accounting.