Johnson & Johnson v. Shiver (2021)

Our plain-English summary of Johnson & Johnson v. Shiver (Georgia Court of Appeals, October 28, 2021).

Four executors of estates sued Johnson & Johnson and its consumer-products affiliate in different Georgia courts. Each claimed that a woman who died of ovarian cancer had used Johnson's Baby Powder and Shower to Shower for years and that asbestos in those products caused her cancer. Georgia's Asbestos Claims Act requires a complaint for a non-mesothelioma cancer to include a medical report from a qualified physician. The report must certify that other potential causes, such as smoking, were not the sole or most likely cause. Each plaintiff attached a report from Dr. Richard Kradin. He said asbestos was a substantial contributing factor, but on other causes he said only that no other 'environmental exposures' were the sole or most likely cause. The trial courts denied J&J's motions to dismiss, reasoning that his other findings or the supporting records covered the gap. The Court of Appeals reversed. It held that the statute's plain language requires the physician to make the certification himself, that reading it into the other findings would make that requirement meaningless, and that the complaints must be dismissed without prejudice.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Georgia Court of Appeals
• Decided: October 28, 2021
• Citation: 865 S.E.2d 283
• Docket: Case No. A21A0832
• Stage: Appeal from motion to dismiss
• State: Georgia

Outcome. The Georgia Court of Appeals reversed the four trial courts' denials of Johnson & Johnson's motions to dismiss, ruling for J&J and requiring dismissal of the estates' complaints without prejudice.

What the court held. Under Georgia's Asbestos Claims Act, a medical report for a non-mesothelioma cancer claim must itself certify, to a reasonable degree of medical probability, that other potential causes were not the sole or most likely cause. Courts may not infer that certification from the report's other conclusions or its supporting documents, and without it the complaint must be dismissed without prejudice.

The people and their exposure

• Irene Shiver: ovarian cancer; died

• Catherine Shrodes: ovarian cancer; died

• Susie Amin: ovarian cancer; died

• Elizabeth Adams: ovarian cancer; died

Who	Work	Where	When	Products
Irene Shiver	user of Johnson's Baby Powder and Shower to Shower		1972, for 42 years	talc and vermiculite, Johnson's Baby Powder, Shower to Shower (Johnson & Johnson)
Catherine Shrodes	user of Johnson's Baby Powder and Shower to Shower		1984, for 26 years	talc and vermiculite, Johnson's Baby Powder, Shower to Shower (Johnson & Johnson)
Susie Amin	user of Johnson's Baby Powder and Shower to Shower		1978-2012	talc and vermiculite, Johnson's Baby Powder, Shower to Shower (Johnson & Johnson)
Elizabeth Adams	user of Johnson's Baby Powder and Shower to Shower		1973-2017	talc and vermiculite, Johnson's Baby Powder, Shower to Shower (Johnson & Johnson)

The defendants

• Johnson & Johnson (manufacturer)
• Johnson & Johnson Consumer Companies, Inc. (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

865 S.E.2d 283 (2021)

361 Ga. App. 677

JOHNSON & JOHNSON et al.

v.

SHIVER.

Johnson & Johnson et al.

v.

Shrodes et al.

Johnson & Johnson et al.

v.

Amin et al.

Johnson & Johnson et al.

v.

Adams et al.

A21A0832 A21A0935 A21A1038 A21A1294.

October 28, 2021.

Court of Appeals of Georgia.

[*284] Shook Hardy & Bacon, Colin Kamrath Kelly, Caroline Marie Gieser, Atlanta, for Appellant.

The Barnes Law Group, Roy E. Barnes, John Raymond Bevis, Benjamin Robert Rosichan; Cheeley Law Group, Robert David Cheeley, Julia Ann Merritt, for Appellee.

Evelyn A. French, amicus curiae.

Reese, Judge.

Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (collectively, "J&J") appeal from orders denying their motions to dismiss the complaints filed against them in four cases in various state and superior courts. In each case, J&J alleged that the plaintiffs failed to meet the prima facie impairment standard under Georgia's Asbestos Claims Act[1] (the "Act"). Because the plain language of the Act required the trial court in each of these cases to dismiss the complaint without prejudice, we reverse.

Each of the complaints in the four cases before us was brought by the executor of the estate of a decedent who had allegedly used Johnson's Baby Powder and Johnson & Johnson's Shower to Shower (collectively, "Talc Product") on a regular basis over a number of years during her lifetime. According to the complaints, as a result of the decedents' cumulative exposures to asbestos contained in the Talc Product, they developed terminal ovarian cancer. Attached to each of the complaints was a case-specific affidavit and medical report of Dr. Richard Kradin, which is discussed in more detail after a brief overview of the procedural history of each appeal at issue here.

Case No. A21A0832

According to the complaint in Case No. A21A0832, Irene Shiver used the Talc Product on a daily basis for 42 years of her life, beginning in 1972. Shiver was diagnosed in July 2016 with ovarian cancer. Her cause of death in June 2019 was listed as metastatic papillary serous carcinoma. Kirt Shiver, as executor of the estate, filed a tort complaint against J&J and others. The State Court of Dougherty County denied J&J's motion to dismiss, and we granted J&J's application for interlocutory appeal.

[*285] Case No. A21A0935

The complaint in Case No. A21A0935 alleged that Catherine Shrodes used the Talc Product for 26 years, beginning in 1984, and that she was diagnosed with ovarian cancer in 2017. Shrodes died from complications of advanced ovarian carcinoma in July 2019. After the State Court of Cobb County denied J&J's motion to dismiss the complaint, we granted interlocutory review.

Case No. A21A1038

According to the complaint in Case No. A21A1038, Susie Amin used the Talc Product daily from 1978 until 2012. She was diagnosed in September 2013 with ovarian carcinoma and died from complications of ovarian cancer in June 2016. The Superior Court of Spalding County denied J&J's motion to dismiss the complaint, and we granted J&J's application for interlocutory appeal.

Case No. A21A1294

According to the complaint in Case No. A21A1294, Elizabeth Adams used the Talc Product from 1973 until 2017, when she was diagnosed with ovarian cancer. The cause of her death in September 2017 was listed as malignant neoplasm of the left ovary. The State Court of Gwinnett County denied J&J's motion to dismiss, and we granted interlocutory review. "The interpretation of a statute is a question of law, which is reviewed de novo on appeal. And when only a question of law is at issue, we owe no deference to the trial court's ruling[.]"[2] With these guiding principles in mind, we turn now to J&J's claim of error.

In each of the four appeals before us, J&J argues that the trial courts erred by not dismissing the complaints because the plaintiffs failed to proffer evidence that other potential causes were not the sole or most likely cause of the injury at issue. Before we turn to construction of the relevant statutes, we begin with a history of the Act to place this dispute in context. In passing the Act, the General Assembly recognized that it was "proper ... to support and protect the Georgia courts from the massive litigation expense and the crowding of trial dockets caused by asbestos ... litigation[.]"[3] The General Assembly noted that diseases caused by asbestos often had long latency periods,[4] and that concerns about statutes of limitation could prompt unimpaired claimants to bring suit to protect their ability to recover.[5] The General Assembly explicitly stated that the purpose of the Act was to give priority to claimants who could demonstrate actual physical harm or illness caused by asbestos and defer the rights of potential claimants who had not yet suffered physical impairment.[6]

To this end, the General Assembly required, inter alia, that any plaintiff filing an asbestos claim after May 1, 2007, include with the complaint "a medical report ... setting forth the medical findings necessary to establish prima-facie evidence of physical impairment[.]"[7] The consequence for failure to satisfy this requirement is clear: "If the trial court determines that the plaintiff has failed to establish prima-facie evidence of physical impairment, it shall dismiss the plaintiff's complaint without prejudice."[8]

In the context of an asbestos claim alleging cancer other than mesothelioma[9] that accrued on or after May 1, 2007, "prima-facie evidence of physical impairment" means

that a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine [*286] physician, or board certified oncologist has signed a medical report certifying to a reasonable degree of medical probability [1] that the exposed person has or had a cancer other than

mesothelioma; [2] that the cancer is a primary cancer; [3] that exposure to asbestos was a substantial contributing factor to the diagnosed cancer; and [4] that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue[.][10]

As noted above, in each of the cases on appeal, the plaintiffs attached to the complaint an affidavit and case-specific medical report of Richard Kradin, M.D., who attested that he was, inter alia, a board-certified pulmonologist and pathologist. In each case, Kradin stated in Paragraph 7 of his affidavit that the decedent had been diagnosed with ovarian cancer, which was a primary cancer. Included with each affidavit was a medical report that indicated the materials Kradin had reviewed,

that summarized the decedents' medical and exposure history, and that made ancillary findings such as the statistical probability of each decedent's exposure to asbestos in the Talc Product.

Kradin concluded in each affidavit that, "to a reasonable degree of medical probability that ... [the decedent's] cumulative exposure to [the Talc Product] contaminated with asbestos, was a substantial contributory factor in causing her ovarian carcinoma."

Kradin further opined that, based on the information and background he reviewed, "there would be no other environmental exposures that would be the sole or most likely cause of the ovarian carcinoma that caused her death." It is this language that J&J contends does not meet the requirements of the Act.

In interpreting the Act's prima-facie evidence of physical impairment requirement, "we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage."[11] "We cannot by construction add to, take from, or vary the meaning of unambiguous words in a statute."[12]

Under the plain language of the Act, the medical report must certify to a reasonable degree of medical probability, inter alia: "[3] that exposure to asbestos was a substantial contributing factor to the diagnosed cancer; and [4] that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue[.]"[13] While Kradin's affidavit tracked the statutory language of the first three prongs, with respect to the fourth prong, he concluded only that there were no other "environmental exposures" that were the sole or most likely cause. Kradin did not opine as to whether there were any other "potential causes."

The trial courts' application of OCGA § 51-14-3(17)(B)(ii) in each of these cases renders the fourth requirement of the medical report mere surplusage. For example, in Case Nos. A21A1038 and A21A1294, the courts used identical language to find that "[Kradin's] conclusion that [the decedents'] exposure[s] to asbestos through [the Talc Product] were substantial contributory factors to causing [their] ovarian cancer necessarily excludes the possibility that other potential causes were not the sole or most likely cause of [their] ovarian cancer." In other words, the courts found that by certifying the third prong, Kradin necessarily certified the fourth prong. We cannot, by construction, take from the meaning of the plain language of the statute,[14] which required certification of the third and the fourth prongs.

[*287] The plaintiffs respond that, to the extent that the third and fourth prongs are redundant, the example of smoking defines and limits the category of items under the doctrine of ejusdem generis. Thus, the plaintiffs argue, Kradin's affidavits are sufficient because they ruled out environmental exposures as the sole or most likely cause of the plaintiffs' ovarian carcinomas.

The doctrine of ejusdem generis is unhelpful in this case as the statute only contains one specific example: "other potential causes (such as smoking)[.]" Under the canon of ejusdem generis,

when a statute lists by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis (i.e., of the same kind or class) with the things specifically named, unless, of course, there is something to show that a wider sense was intended. Here, however, because there is only one specific [potential cause], followed by a general [potential cause], and not a list of specific items separated by commas and followed by a general or collective term, the canon is inapplicable.[15]

The trial courts also erred in supplementing Kradin's conclusions based on their readings of the supporting medical documentation. For example, the state court in Case No. A21A0935 found:

[A]lthough [Kradin's] affidavit does not include verbatim the specific word for word language of the statute, the affidavit in the context of the medical documentation submitted with it, does comply with the statutory requirement concerning other potential causes of the decedent's condition and satisfies the purpose of the statute. The court notes that the medical information on which the affidavit is based does not include any indication that any non-environmental factor would have been a potential cause of [Shrodes's] cancer.

Similarly, in Case No. A21A0832, the state court found that, because there was evidence that Kradin had considered Shiver's past medical history and negative health problems, he "effectively determined" that other potential causes were not

the sole or most likely cause. The statute is clear, however, that it is the medical expert[16] who must certify to a reasonable degree of medical probability that other potential causes were not the sole or most likely cause of the injury at issue.[17] Kradin did not certify "that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue[.]" Because the plain language of the statute required this certification, the trial courts should have dismissed the complaints without prejudice.[18]

Judgments reversed.

Doyle, P. J., and Brown, J., concur.

[1] See OCGA § 51-14-1 et seq.

[2] Catoosa County v. Rome News Media, 349 Ga. App. 123, 126, 825 S.E.2d 507 (2019) (punctuation and footnote omitted). [3] OCGA § 51-14-1 (a)(8).

[4] OCGA § 51-14-1(a)(4).

[5] OCGA § 51-14-1(a)(7).

[6] OCGA § 51-14-1(b).

[7] OCGA § 51-14-6(2)(A).

[8] OCGA § 51-14-6(2)(E) (emphasis supplied).

[9] If a claimant alleges mesothelioma caused by exposure to asbestos, no further prima-facie evidence of physical impairment is required. OCGA § 51-14-3(17)(B)(i). The prima-facie evidence requirements for asbestos claims alleging non-malignant injury are the most stringent of the three categories. See OCGA § 51-14-3(17)(B)(iii).

[10] OCGA § 51-14-3(17)(B)(ii).

[11] Lyman v. Cellchem Intl., 300 Ga. 475, 477, 796 S.E.2d 255 (2017) (citation and punctuation omitted). [12] City of Albany v. GA HY Imports, 348 Ga. App. 885, 891(1), 825 S.E.2d 385 (2019) (citation and punctuation omitted). [13] OCGA § 51-14-3(17)(B)(ii) (emphasis supplied).

[14] See City of Albany, 348 Ga. App. at 891(1), 825 S.E.2d 385.

[15] Warren v. State, 294 Ga. 589, 591, n. 2, 755 S.E.2d 171 (2014) (citations and punctuation omitted). [16] Specifically, the medical report must be signed by "a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist[.]" OCGA § 51-14-3(17)(B)(ii). [17] OCGA § 51-14-3(17)(B)(ii).

[18] See OCGA § 51-14-6(2)(E).

Sources

• The opinion on Google Scholar
• Georgia asbestos laws
• Georgia asbestos exposure sites