Georgia asbestos law ruled unconstitutional.

The Georgia Supreme Court struck down the state's Asbestos Safety Act of 2005, which raised the threshold of proof asbestos plaintiffs had to meet. Plaintiffs who filed claims based on injury from asbestos exposure argued that it was unconstitutional to apply the statute to their pending cases, and the state supreme court agreed. (DaimlerChrysler Corp. v. Ferrante, 2006 WL 3345000 (Ga. Nov. 20, 2006).)

The plaintiffs had malignant conditions, including mesothelioma and lung cancer, that they alleged were caused by occupational exposure to asbestos. Consolidated hearings were held for a group of cases.

"[T]he trial courts issued virtually identical orders ruling that because the act required asbestos plaintiffs to provide proof that exposure to asbestos was a substantial contributing factor in their medical condition, it unconstitutionally affected appellees' substantive rights by establishing 'a new element to [their] claim, one that did not exist when the original cause of action accrued,'" Justice Carol Hunstein wrote for the Georgia high court. The court affirmed that judgment.

Before the act was passed, to establish a claim for asbestos-related injuries, a plaintiff had to show that asbestos exposure was a contributing factor. The new law required prima facie evidence that asbestos was a "substantial contributing factor." The plaintiffs argued that under the state constitution, the act could not be applied retrospectively because it affected their substantive rights.

The defendants argued that even if the "substantial contributing factor" language was unconstitutional, the court could sever it from the act. But the court found that the decision to include that requirement "demonstrates a clear intent to limit actionable asbestos claims to those situations in which a greater level of causation can be shown. These requirements and limitations are the heart of the act." The court said the act must fail in its entirety.

"It's a just result," said W. Lee Gresham III, a Birmingham, Alabama, lawyer who represents the plaintiffs. "It's certainly in keeping with case law, the constitution, and statutory law in Georgia."

"The statute may appear benign, but when it is applied to practical medicine, it's not," Gresham said. He explained that causation is difficult to show, because treating doctors ordinarily do not determine what caused a condition. To hire another physician to do so, plaintiffs have to find one who meets the statute's criteria for a "qualified physician." For example, the statute says the doctor must spend "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."

The purpose of the statute was to "limit plaintiffs' rights to recover from big business," noted Ronald Kaplan, an Atlanta lawyer and physician. The act covers claims based on exposure to silica as well as asbestos.

The U.S. Chamber of Commerce, the American Tort Reform Association, and industry groups filed an amicus brief in support of the defendants, arguing that there is a glut of asbestos cases and that plaintiffs who are not sick are clogging the courts and slowing down the legal process for those who are.

Gresham said there is no evidence of such a glut in Georgia and noted that cases are moving efficiently. "Filings are down, and the time it takes between filing and resolution is down," he said.

Kaplan said he thinks other jurisdictions will rely on the Georgia decision. A similar case--also addressing the retroactive application of a state asbestos statute--is pending before a Florida appeals court. (DaimlerChrysler Corp. v. Hurst, No. 3D06-2593 (Fla. Dist. App. argued Dec. 12, 2006).)