Wadley v. Mother Murphy's Labs., Inc.

357 Ga.App. 259

850 S.E.2d 490

WADLEY et al.

v.MOTHER MURPHY'S LABORATORIES, INC. et al.

A20A0899

Court of Appeals of Georgia.

October 21, 2020

Steel & Moss, John D. Steel, for appellants.

Goodman McGuffey, Judy F. Aust ; Hawkins Parnell & Young, Eric T. Hawkins, Ollie M. Harton, Camille A. Smith, William J. Martin ; Mozley Finlayson & Loggins, John R. Lowery, for appellees.

Rickman, Judge.

Mildred Wadley and Darryl A. Wadley, as administrator of the Estate of James Wadley, sued Mother Murphy's Laboratories, Inc., Illes Food Ingredients, Ltd., and First Illes Investments, LLC, among other companies, for damages stemming from the death of James Wadley, which they alleged was caused by his exposure to flavorings containing the compound "diacetyl" that were manufactured, marketed, distributed and sold by the defendants and used by his employer.¹ The Wadleys asserted claims for negligence, strict product liability, and strict product liability - failure to warn; Mildred Wadley asserted claims for loss of consortium and wrongful death; and Darryl Wadley asserted an executor's claim. The trial court issued orders granting summary judgment to Mother Murphy and Illes and granting Mother Murphy's motion to exclude the specific causation testimony of one of the Wadleys’ expert witnesses. The Wadleys appeal those orders and contend that, in granting the motions, the trial court inconsistently and improperly applied Georgia's expert witness standard as set forth in OCGA § 24-7-702 (b). For reasons that follow, we reverse and remand with direction.²

Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Gervin v. Retail Property Trust , 354 Ga. App. 11, 11, 840 S.E.2d 101 (2020).

So viewed, the evidence showed that James Wadley worked at a commercial bakery in Forest Park, Georgia (the plant) from 1970 to 2001. During his employment, Wadley worked primarily in the refrigerated dough section and at various times held the position of mixer operator, mixer helper, or line attendant. As a mixer operator, Wadley would add ingredients, including butter chips and liquid butter flavorings, to the mixer. One of Wadley's co-workers testified that Wadley also worked in the plant's butter chip room.

From approximately 1997 to 2001, Mother Murphy sold the plant a liquid artificial butter flavoring that contained diacetyl.³ That butter flavoring was used in the production of frozen bread sticks, which were manufactured in the refrigerated dough section of the plant.

From 1997 to 2008, Illes manufactured and sold to the plant two butter flavoring products that contained diacetyl. Those butter flavorings were used in the plant's butter chip room and in the plant's refrigerated dough section.

During the discovery process in this case, the Wadleys identified Mark Rigler, Ph.D., a microbiologist and director of an engineering consulting firm, as an expert witness to offer opinions regarding the ability of flavoring products containing diacetyl to release diacetyl during normal use. Dr. Rigler reformulated one of the Illes butter flavoring products used at the plant to determine the emission of diacetyl into the air from that product in a small emission chamber. The results of Rigler's study indicated that diacetyl emissions from small spills of the product, spread over multiple surface areas, will cause elevated amounts of diacetyl in the air, and that mixing or agitating flavoring components will cause more diacetyl to be emitted into the air. The study showed that the diacetyl concentrations detected at 1.5, 2.5, and 6 hours were 447, 238, and 68 times higher than the recommendations for short term exposure to diacetyl issued by the National Institute for Occupational Safety and Health (NIOSH).⁴

Rigler also reviewed the ingredients lists for the other Illes diacetyl-containing product used at the plant and the Mother Murphy diacetyl-containing product used at the plant and compared them to the ingredients found in butter flavor formulations he had researched. Based on studies his company had done on diacetyl-containing products as well as his education, experience, and published research, Rigler opined that the emission of diacetyl from a small amount (milligrams) of the Illes product and the Mother Murphy product would produce a level of at least 500 to 1,000 parts per billion of diacetyl in the air at room temperature in a closed, nonventilated area.

In his expert report, Rigler described three industrial hygiene studies conducted at the plant by outside companies in 2004, 2006, and 2008. The 2004 study was initiated after the plant owner's safety director learned that exposure to diacetyl or diacetyl-containing flavors may present a health hazard to employees. The objective was to assess employees’ exposure to diacetyl vapors in the butter flavoring operation. Following the 2004 study, recommendations were made on ways for the plant to reduce its employees’ exposure to diacetyl, some of which the plant implemented. In 2006, another industrial hygiene study was conducted to determine if the recently implemented control strategies had been successful in reducing employees’ exposure to diacetyl in the butter flavoring production operation. The results showed some improvement, with the diacetyl vapor concentration being reduced in the butter chip room. Additional recommendations were made to further reduce employees’ exposure. In 2008, another industrial hygiene site visit sampled two processes, the butter chip room and the refrigerated dough section. The highest personal breathing zone concentrations for diacetyl on the refrigerated dough line were associated with the mixer operator. Suggestions were offered for additional exposure control at the plant.

Rigler's expert report also explained how studies conducted by his company since 2006 showed that diacetyl emissions from butter flavored products were continuous over time. Rigler opined that the diacetyl concentrations measured in his company's studies were consistent with the diacetyl levels measured in the plant in 2004, 2006, and 2008, and that "the diacetyl containing butter flavors used at the [plant and] reported in the 2004, 2006, and 2008 industrial hygiene studies were the source of the airborne diacetyl in the areas tested at the [plant]."⁵

As another expert witness, the Wadleys identified David Egilman, who has a bachelor of science degree in molecular biology, a medical degree, and a master's in public health, to offer opinions on, inter alia, how butter and other flavors containing diacetyl were proved to be the cause of lung disease and how the injuries at the plant were caused by workers’ exposures to these hazardous products. In addition to numerous other articles, Dr. Egilman co-wrote an article proposing a safe exposure level for diacetyl. According to the article, the "overall weight of evidence indicates that diacetyl's toxicity has a cumulative effect and can cause lung disease at very low exposure levels comparable to other highly potent lung toxins." Accordingly, the article proposes that a safe exposure level for diacetyl is less than one part per billion for an eight-hour work day.

Egilman's expert report in this case points out that numerous scientific studies have shown an increased risk of bronchiolitis obliterans after exposure to diacetyl and butter flavoring.⁶ In his deposition, Egilman testified that either peak (short-term) or chronic exposure to diacetyl may be sufficient to cause disease, and that in his opinion, Wadley's lung disease was probably caused by both his exposure to diacetyl and cigarette smoking.

Mother Murphy joined a co-defendant's motion to exclude the specific causation testimony of Egilman, arguing that Egilman had rendered no opinions linking James Wadley to Mother Murphy's products. Illes also filed a motion to preclude Egilman from offering any testimony regarding specific medical causation based on an alleged failure to disclose any such opinions. The trial court denied Illes’ motion to exclude based on a failure to disclose Egilman's specific causation opinions, and, after applying Georgia's expert witness standard, also denied Illes’ motion on the merits. The trial court, however, granted Mother Murphy's motion to exclude based on its conclusion that any specific causation opinions related to Mother Murphy were too speculative. Based on its exclusion of Egilman's testimony, the trial court granted summary judgment to Mother Murphy.⁷

In its motion for summary judgment, Illes argued that the Wadleys had failed to show that James Wadley's injuries were caused by exposure to products manufactured by Illes. The trial court granted Illes’ motion based on its finding that the "reliance on exposure level data that was collected at least three years after Mr. Wadley last worked at the plant is too speculative to create a genuine issue of material fact on specific causation."

1. The Wadleys contend that the trial court erred in granting summary judgment to Mother Murphy based on the exclusion of Egilman's specific causation testimony.

In a toxic tort case, the plaintiff must prove both general causation, that a substance is capable of causing a particular injury or condition, and specific causation, that a substance made a meaningful contribution to a particular individual's injury. See Scapa Dryer Fabrics v. Knight , 299 Ga. 286, 290-291, 788 S.E.2d 421 (2016) ; Butler v. Union Carbide Corp. , 310 Ga. App. 21, 25 (1), 712 S.E.2d 537 (2011). While proving both types of causation involves a question of the concentration levels of the toxin to which the plaintiff...