Fouch v. Bicknell: Plaintiff Not Required to Show Specific Dosage Amounts

The Georgia Court of Appeals recently clarified a few points of law regarding whether and what level of exposure to a toxic substance a plaintiff must establish in order to defeat a defendant’s motion for summary judgment.

In Fouch v. Bicknell Supply Co., et al., the trial court granted the defendants summary judgment, finding that the plaintiff, a former sandblaster, failed to present evidence showing the amount of respirable silica exposure he experienced while using the defendants’ safety equipment products and that the defendants did not have a duty to warn the plaintiff of the known risks associated with sandblasting. Fouch v. BicknellSupply Co., 2014 WL 1097951 (Ga. Ct. App. Mar. 21, 2014).

The plaintiff appealed, arguing that the trial court erred in concluding that he was required to show the actual quantity of respirable silica he was exposed to while wearing the defendants’ products. The appellate court agreed, explaining that:

While proving both [specific and general] causation involves a question of the concentration levels of the toxin to which the plaintiff was exposed, there is no specific requirement that the plaintiff show specific air measurement readings or dosage amounts in order to establish causation. Rather, in toxic tort cases, proof of causation generally requires reliable expert testimony which is “based, at the least, on the determination that there was a reasonable probability that the negligence caused the injury. The testimony must show at least a probable cause, as distinguished from a mere possible cause.”

Id. at *4 (emphasis in original).

The court also went on to address the issue of how much exposure the plaintiff must establish to a specific defendant’s product when there are multiple defendants in the case.

In a case such as this involving multiple tortfeasors, an individual tortfeasor’s conduct need only constitute a contributing factor, not a “substantial” factor, in the injury in order for the tortfeasor’s conduct to be considered a proximate cause. Just as there may be more than one proximate cause of an injury in cases involving the concurrent negligence of several tortfeasors, there is no requirement that a defendant’s products be the sole cause in order to establish proximate cause.

Id. (internal citations omitted)

While this may seem a little disconcerting to product manufacturers and suppliers, there are a few key points that played a central role in the court’s holdings in this case and which potentially offer grounds for distinguishing the factual underpinnings presented in Fouch.

In Fouch, the court ruled that the plaintiff did not have to establish that he was exposed to a specific threshold level of silica necessary to induce silicosis because it was undisputed that the plaintiff developed silicosis, a disease “which by definition, results only from an overexposure to silica.” Id. at 5. “As…the only purpose of an exposure limit is to determine at what level a toxic chemical becomes dangerous, and the existence of an illness caused by exposure to the toxic chemical ‘renders moot the inquiry as to how many doses it takes to cause the disease.” Id. While the court was referring to silicosis in this case, the appellate court has made a similar statement about asbestosis. See Fulmore v. CSX Transp., Inc., 252 Ga. App. 884, 892, 557 S.E.2d 64, 72 (2001) (“Where, as here, the cases undisputedly involve plaintiffs who have contracted asbestosis, which by definition, results only from an overexposure to asbestos, the proof of asbestosis conclusively establishes such overexposure. As the only purpose of the TLV is to determine at what level exposure to asbestos becomes dangerous, the existence of asbestosis renders moot the inquiry as to how many doses it takes to cause the disease. If that is not true, then the theory upon which the TLV is established is not true.”) (Notably, in Fulmore, the court specifically pointed out just prior that “[Fulmore was] a FELA case which has a more relaxed standard of proof of causation.” Fulmore, 252 Ga. App. at 892, 557 S.E.2d at 72 (2001).)

Also important to the outcome of Fouch was the fact that the expert opinions were not challenged. The plaintiff’s experts relied upon a study demonstrating that, given the respiratory equipment the plaintiff used, the plaintiff was overexposed to a toxic chemical at a level that exceeded permissible limits. Id. Because this established some evidence of specific causation, the appellate court found that the trial court erred in granting the defendants summary judgment on this issue. Id.

Moreover, it was also undisputed that the only acceptable respirator to be used in sandblasting, as dictated by federal regulations, was an air-supplied hood. Id. It was undisputed that the plaintiff did not wear the hood during his employment. Id.

Product manufacturers and suppliers can also rest assured that this case did not overrule or erode Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011), an asbestos case in which the Court of Appeals court struck the “any exposure” theory relied upon by an expert in that case. However, the Fouch court did explain that in striking the “any exposure” theory relied upon by the expert in Butler, the Butler court did not go so far as to hold that a plaintiff must establish a specific amount of exposure to a toxic chemical in order to prove specific causation. Fouch, 2014 WL 1097951, at * 6.

The Court of Appeals also clarified a few points regarding the application of the learned intermediary rule in this context. In Fouch, the defendants argued that they did not have a duty to warn to warn the plaintiff or his employers of the dangers posed by sandblasting with their products because plaintiff’s employers were learned intermediaries. The court held that the application of this rule is not automatic. Rather, the trial court must engage in a balancing test to determine whether a manufacturer or supplier has discharged his duty to warn. Because the balancing test had not been undertaken in this case and because factual issues regarding the employers’ appreciation of the hazards of sandblasting remained, the trial court erred in granting the defendants’ motion for summary judgment on this ground as well.