GEORGIA POWER COMPANY v. KEVIN R. SINYARD
CourtCourt of Appeals of Georgia
Date FiledNovember 3, 2026
DocketA26A0973
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
FIFTH DIVISION
BROWN, C. J.,
MERCIER, P. J., and EPPS, J.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
November 3, 2026
In the Court of Appeals of Georgia
A26A0973. GEORGIA POWER COMPANY v. SINYARD et al.
BROWN, Chief Judge.
Georgia Power Company appeals from the trial court’s order dismissing Ford
Motor Company and Union Carbide Corporation as defendants and ruling that
Georgia Power, as the only remaining defendant, is not entitled to have the jury
apportion fault among other potential tortfeasors in this asbestos-mesothelioma case.
Georgia Power also appeals from the denial of its motion to exclude expert testimony
and the denial of its renewed motion for summary judgment. For the reasons that
follow, we affirm.
This Court reviews “de novo a grant or denial of summary judgment, viewing
the evidence and all reasonable conclusions and inferences drawn from it in the light
most favorable to the nonmovant.” Henry v. Griffin Chrysler Dodge Jeep Ram, 362 Ga.
App. 459, 460 (868 SE2d 827) (2022).
Summary judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. The
burden on the moving party may be discharged by pointing out by
reference to the affidavits, depositions and other documents in the
record that there is an absence of evidence to support the nonmoving
party’s case. If the movant meets this burden, the nonmovant cannot rest
on [its] pleadings, but rather must point to specific evidence giving rise
to a triable issue.
Id. at 460–61 (citations and punctuation omitted). See OCGA § 9-11-56(c), (e).
This case is now before this Court for a third time. The pertinent facts, as
outlined in Sinyard v. Ga. Power Co., 363 Ga. App. 195 (871 SE2d 45) (2022)
(“Sinyard I”), are as follows. Kevin Sinyard was a pipefitter for more than 25 years
and worked for more than 41 contractors, including Georgia Power Company, at
various job sites across Georgia. Id. at 195–96.
Sinyard performed work as an independent contractor for four Georgia
Power plants—Scherer, Branch, McDonough and Vogtle—between
1979 and 1986. Sinyard was never directly employed by Georgia Power,
and his work was not continuous during this time; instead, he would
2
work for four to six weeks when needed, which was approximately once
a year.
...
A representative for Georgia Power testified that Georgia Power has
used asbestos gaskets, asbestos packing, and asbestos insulation in its
plants since the 1930s and continued to stock asbestos products as late
as 1992. The representative agreed that asbestos-containing materials
existed in all of Georgia Power’s plants during the period of Sinyard’s
employment.
Id. at 197–98(b)(i), (ii).
In 2014, Sinyard was diagnosed with malignant pleural mesothelioma. 363 Ga.
App. at 195. In 2016, Sinyard and his wife filed a lawsuit against various defendants,
including Georgia Power, Ford Motor Company, and Union Carbide Corporation,
alleging negligence, premises liability, loss of consortium, and punitive damages,
claiming that his disease was caused by exposure to asbestos while working at facilities
owned by some of the defendants.1 Id. at 202(e).
1
After settlements and the grant of summary judgment to one defendant, four
defendants remained in the case: Georgia Power, Ford, Union Carbide, and Georgia-Pacific
LLC. The case was stayed with respect to Sinyard’s claims against Georgia-Pacific in 2017,
due to Chapter 11 bankruptcy proceedings.
3
In 2021, the Sinyards appealed from the grant of summary judgment to Ford,
Georgia Power, and another defendant on other grounds. Sinyard I, 363 Ga. App. at
195. This Court reversed the grant of summary judgment to Ford and affirmed in part
and reversed in part the grant of summary judgment to Georgia Power. Id. at 195,
203–05(1), 211–12(4), 217.
On remand from Sinyard I, Georgia Power, Ford, and Union Carbide
Corporation (collectively “Defendants”) moved to exclude the testimony of the
Sinyards’ causation expert, Dr. Jerrold Abraham, and two other expert witnesses,
Christopher DePasquale and Dr. Steven Compton. Defendants also moved for
summary judgment on the issue of causation based on the exclusion of Dr. Abraham’s
opinions.2 In a single order, the trial court denied the motions to exclude Dr.
Abraham’s testimony, concluding, inter alia, that Dr. Abraham properly based his
causation opinions on “reliable ranges of exposure” established by DePasquale and
Dr. Compton. The trial court separately denied the motions to exclude testimony of
DePasquale and Dr. Compton. Thereafter, the trial court concluded that, given its
ruling on the admissibility of Dr. Abraham’s opinions, disputed issues of material fact
2
Georgia Power contended it was entitled to summary judgment on other grounds,
which the trial court ultimately rejected.
4
remain as to causation and thus denied the motions for summary judgment. The court
certified its orders for immediate review, and we granted Defendants’ applications for
interlocutory appeal but later dismissed the resulting appeals as having been
improvidently granted
Following remittitur to the trial court, the Sinyards participated in mediation
with Georgia Power, Ford, and Union Carbide. As a result of that mediation, the
Sinyards settled their claims against Ford and Union Carbide, but their claims against
Georgia Power remained pending. Ford, Union Carbide, and the Sinyards filed joint
motions to dismiss Ford and Union Carbide and drop them as parties to the action in
light of the settlements, with the result that Georgia Power would be the sole
remaining defendant in the case. Georgia Power objected, asking the court to maintain
the status of Ford and Union Carbide as nominal parties because dismissing them
“could adversely affect substantial rights of Georgia Power to apportionment of fault
and damages under OCGA § 51-12-33,” or, alternatively, to apply the newly enacted
provisions of OCGA § 51-12-15. The trial court granted the motions, dismissed Ford
and Union Carbide, and ruled that Georgia Power is not entitled to apportionment of
fault. Specifically, the trial court ruled that OCGA § 51-12-15 divides personal injury
5
trials into three procedural phases and grants a defendant a right, in the first phase, to
introduce evidence that other defendants and non-parties may be at fault. The trial
court determined, however, that the statute creates a new substantive right, so it
cannot be applied retroactively. At the request of Georgia Power, the trial court
certified its order for immediate review, and this Court subsequently granted Georgia
Power’s application for interlocutory review. Georgia Power appeals from this order
and also enumerates as error the trial court’s previous denial of its motions to exclude
the testimony of the Sinyards’ expert witnesses and the denial of its renewed motion
for summary judgment.3
1. At the time the Sinyards filed their complaint, OCGA § 51-12-33(b) (2005)
provided for the apportionment of fault when a lawsuit involved multiple defendants:
Where an action is brought against more than one person for injury to person
or property, the trier of fact, in its determination of the total amount of
damages to be awarded, if any, shall . . . apportion its award of damages
among the persons who are liable according to the percentage of fault of
3
Because we have jurisdiction to address the trial court’s order dismissing Union
Carbide and Ford under OCGA § 5-6-34(b), we also have jurisdiction to address the orders
denying Georgia Power’s motion to exclude Dr. Abraham’s testimony and its renewed
motion for summary judgment under OCGA § 5-6-34(d). See Gulfstream Aerospace Servs.
Corp. v. U.S. Aviation Underwriters, Inc., 280 Ga. App. 747, 751 n.5 (635 SE2d 38) (2006);
Aetna Cas. & Surety Co. v. Cantrell, 197 Ga. App. 672, 672–73(1) (399 SE2d 237) (1990).
6
each person. Damages apportioned by the trier of fact as provided in this
Code section shall be the liability of each person against whom they are
awarded, shall not be a joint liability among the persons liable, and shall
not be subject to any right of contribution.
(Emphasis supplied.) In AU Medical Center v. Dale, 373 Ga. App. 521 (908 SE2d 790)
(2024), this Court interpreted the phrase “[w]here an action is brought against more
than one person” to mean that apportionment is available only when more than one
defendant remains in the case at trial. Id. at 530–32(1)(c). In other words, where—as
here—all defendants except one have been dismissed before trial, then the trier of fact
will not apportion fault under OCGA § 51-12-33(b). Georgia Power acknowledges that
as a result of the trial court’s dismissal order and our AU Medical Center decision, it
is not entitled to apportionment under OCGA § 15-12-33(b).4
Nonetheless, Georgia Power maintains that it is entitled to apportion fault
under a different statute, OCGA § 51-12-15(a), which became effective as part of
Georgia’s Tort Reform Act on April 21, 2025, and provides as follows:
4
In a footnote, Georgia Power summarily argues that AU Medical Center was
“wrongly decided as argued by the dissent and this Court should overrule it.” We decline.
7
(a) In any action to recover damages for bodily injury or wrongful death,
any party may elect ... to have fault and any award of damages
determined at trial in the following manner:
(1) In the first phase of the trial, the trier of fact shall determine the fault
of each defendant, and if the trier of fact finds that any defendant is at
fault for the plaintiff’s injuries or wrongful death, the trier of fact shall
further determine through an appropriate form of the verdict the percentage of
fault of all persons or entities that contributed to such injuries or wrongful
death as provided in Code Section 51-12-33, prior to any determination of
the total amount of damages to be awarded[.]...
(2) If the trier of fact finds in the first phase of the trial that any
defendant is at fault for the plaintiff’s injuries or wrongful death, the trial
shall be recommenced immediately with the same judge and the same
jury. In the second phase of the trial, the trier of fact shall determine all
compensatory damages to be awarded to the plaintiff, if any, and the
evidence and arguments of counsel shall be limited to this issue; and
(3) If the trier of fact finds in the second phase of the trial that any
compensatory damages are to be awarded to the plaintiff, the trial may
be recommenced immediately with the same judge and the same jury for
such further proceedings as may be required, including, but not limited
to, proceedings provided for in subsection (d) of Code Section 51-12-5.1
concerning punitive damages and proceedings to determine liability for,
and the amount of, any attorney’s fees, court costs, or expenses of
litigation that may be awarded by the trier of fact as provided by law.
8
(Emphasis added.) Georgia Power asserts that the apportionment provisions of OCGA
§ 51-12-15 retrospectively apply in this case. As stated above, the trial court concluded
that the statute creates a new substantive right and thus could not apply retroactively.
“As the standard of review for a question of law on appeal is de novo,” we review the
trial court’s ruling de novo. Advantage Behav. Health Sys. v. Cleveland, 350 Ga. App.
511, 517(2) (829 SE2d 763) (2019) (punctuation omitted).
“The presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine older than our Republic. For that reason,
courts usually insist upon some clear indication in the statutory text that a statute is
to be applied retroactively before so applying it.” Howard v. Coffee Regional Med. Ctr.,
Inc., 377 Ga. App. 742, 748(2) (922 SE2d 890) (2025). Here, the legislature provided
such a “clear indication” in the amendment enacting Georgia’s 2025 Tort Reform
Act:
Sections 6 and 7 of this Act shall apply only with respect to causes of
action arising on or after the effective date of this Act, and any prior
causes of action shall be governed by prior law. It is the intention of the
General Assembly that all other provisions of this Act shall apply to
causes of action pending on the effective date of this Act, unless such
application would be unconstitutional.
9
Ga. L. 2025, p.9 §9(b) (emphasis added). The Code section at issue is found in
Subsection 8 and thus should be given retroactive effect unless our Constitution
forbids it. See Deal v. Coleman, 294 Ga. 170, 174–75(1)(b) (751 SE2d 337) (2013). See
also Southern States Chem., Inc. v. Tampa Tank & Welding, Inc., 316 Ga. 701, 708(1)
(888 SE2d 553) (2023) (“It is only when such a clear indication is present that we then
consider whether retroactive application is unconstitutional[.]”). Accordingly, we
must determine whether the retroactive application of OCGA § 51-12-15(a) is
unconstitutional.
“The prohibition in Art. I, Sec. I, Par. X of the Georgia Constitution of 1983
against retroactive laws applies only to those laws which affect or impair substantive
rights under prior law which have vested at the time the subsequent law takes effect.”
Devore v. Liberty Mut. Ins. Co., 257 Ga. App. 7, 9 (570 SE2d 87) (2002). “That is,
retrospective operation takes away or impairs vested rights acquired under existing
laws or creates a new obligation, imposes a new duty, or attaches a new liability in
respect to transactions or considerations already past.” Fowler Props., Inc. v. Dowland,
282 Ga. 76, 77–78(1) (646 SE2d 197) (2007) (punctuation omitted). “Where an
amendment to a statute changes procedure or rules of evidence, it does not affect or
10
impair vested substantive rights, and it is to be given retroactive effect absent the
legislature’s expressed contrary intention.” Devore, 257 Ga. App. at 9. See also
Murphy v. Murphy, 295 Ga. 376, 377 (761 SE2d 53) (2014) (“[O]ne has no vested rights
in any course of procedure, and the presumption against a retrospective statutory
construction does not apply to statutory enactments which affect only court procedure
and practice, even when the alteration from the statutory change results in a
disadvantage to a party.”); DaimlerChrysler Corp. v. Ferrante, 281 Ga. 273, 274(1) (637
SE2d 659) (2006) (“Procedural law is that law which prescribes the methods of
enforcement of rights, duties, and obligations.” (punctuation omitted)).
Examples of laws found by Georgia appellate courts to affect only procedure or
remedy include the following: provisions of the Tort Reform Act of 2005 governing
the qualification of expert witnesses and the admissibility of expert testimony in civil
cases;5 a statute making an award of interest automatic in child support proceedings
when requested by the person owed child support;6 a statutory amendment requiring
5
Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 278–79(4) (658 SE2d 603) (2008)
(provisions, as evidentiary rules, were procedural and thus application of the statute to
plaintiffs’ case did not violate the constitutional prohibition against retroactive laws).
6
Reid v. Reid, 232 Ga. App. 304, 306 (502 SE2d 269) (1998) (concluding that statute
at issue was “procedural or remedial” in nature, rather than substantive, because it “in no
11
those desiring to file suit for damages against a municipality to include certain specific
information in the required ante litem notice, namely “‘the specific amount of
monetary damages being sought[.]’”7
Conversely, the following were found to affect substantive rights: a statute
extinguishing the right to a jury trial in a paternity suit;8 provisions of the asbestos
claims statute requiring plaintiffs to produce prima facie evidence establishing that
exposure to asbestos was a substantial contributing factor to their medical conditions;9
a law imposing an additional duty and obligation to pay an opposing party’s attorney
fees following a rejected settlement offer when a final judgment does not meet a
way alters a person’s obligation to pay child support ... [but] only alters the manner in
which an obligee owed child support can proceed to obtain interest ... on the unpaid child
support payments”).
7
Harrell v. City of Griffin, 346 Ga. App. 635, 640(2)(b) (816 SE2d 738) (2018)
(amendment to OCGA § 36-33-5 “merely refine[d] one aspect of the procedure for
enforcing the rights [plaintiff] had arising out of her tort cause of action” and thus could
be retrospectively applied).
8
Hargis v. Dep’t of Human Res., 272 Ga. 617, 617–18 (533 SE2d 712) (2000) (The
right to a jury trial is a substantive one, and thus the statute extinguishing the right to a jury
trial in a paternity suit could not be applied retrospectively.).
9
Daimler Chrysler Corp. v. Ferrante, 281 Ga. 273, 274(1) (637 SE2d 659) (2006)
(provisions affected plaintiffs’ substantive rights by imposing a greater evidentiary burden
than was required under the law in effect at the time their actions were filed and could not
retroactively be applied to their claims).
12
certain amount or is one of no liability;10 a statute repealing the cause of action for
alienation of affections;11 and a statute abolishing the rule that a plaintiff could not
recover against a tortfeasor damages for which minimum, mandatory no-fault
compensation was available.12 Additionally, in F. H. Ross & Co. v. White, 224 Ga. 324
(161 SE2d 857) (1968), the Georgia Supreme Court held that the “[t]he right of
contribution between joint trespassers is a substantive right,” and thus the statute
creating such a right could not be applied retrospectively. Id. at 325(2). The
distinctions drawn by these cases support the conclusion that the right of
apportionment is a substantive right affecting a defendant’s liability and a plaintiff’s
ability to collect.
In considering whether apportionment is procedural or substantive in nature,
we also find it instructive that other state courts considering the issue have concluded
that similar statutes are substantive for retroactivity purposes. See, e.g., CNA Ins. Co.
v. Ellis, 148 P.3d 874, 878(I)(A) (Okla. 2006) (holding change of law from
10
Fowler Props., Inc., 282 Ga. at 78(1).
11
Enger v. Erwin, 245 Ga. 753, 754–55 (267 SE2d 25) (1980).
12
Glover v. Colbert, 210 Ga. App. 666, 669 (437 SE2d 363) (1993).
13
apportionment of liability to sole liability of current insurer affected substantive rights
of parties and could not be given retroactive effect); Forsythe v. Valley Consol. Indus.,
139 MichApp 211, 217 (361 NW2d 768) (1984) (statutory amendment that took away
the right of the most recent employer to have its liability for compensation
apportioned among prior employers in proportion to the time that the employee was
employed in the service of each prior employer affected substantive rights and thus
could only apply prospectively); Aucoin v. State of Louisiana Through Dep’t of Transp.
& Dev., 712 So.2d 62, 67 (La. 1998) (where statutory amendment shifting to joint and
several obligation from solidary liability “altered the existing rule” and resulted in
changing the amount of damages recoverable, the change was clearly substantive and,
as such, the amendment could have only prospective application).13 Cf. Roth v. Roth,
571 SW2d 659, 672 (Mo. Ct. App. 1978) (Missouri Supreme Court ruling affecting
apportionment of damages and the rights of recovery among joint tortfeasors was a
change in substantive law and thus applied prospectively). Cf. Keith v. U.S. Fid. &
Guar. Co., 694 So. 2d 180, 183 (La. 1997) (revision to apportionment statute affecting
“the quantification of employer fault” was procedural; the substantive right to
13
Aucoin was subsequently overturned by legislation.
14
allocate fault was created previously with the introduction of comparative fault and
revision at issue “simply delineates a method for enforcing that substantive right”).
In contending that the apportionment provisions of OCGA § 51-12-15 are
procedural in nature, Georgia Power asserts that OCGA § 51-12-15 “did not create
Georgia’s apportionment scheme, which was added to the law in 2005, and changes
absolutely nothing about how fault is actually distributed.” Rather, it “changes the
timing for when fault determinations are made and requires apportionment in a
trifurcated trial.” Further, according to Georgia Power, “OCGA § 51-12-15 does not
impair any party’s or non-party’s vested substantive rights” and “should be read in
pari materia with its pre-existing and unaltered sister apportionment statute, OCGA
§ 51-12-33 (2005) and (2022).” (Punctuation omitted.) We agree with the assertion
that OCGA § 51-12-15 is a procedural vehicle for the apportionment statute, OCGA
§ 51-12-33. See Transcontinental Carriers, Inc. v. Bennett, __ Ga. App. __(1) (__SE2d
__) (2026), A26A1643, slip op. at 3(1) (Ga. Ct. App. Sept. 9, 2026) (2026 WL
2653790). Despite arguing that OCGA § 51-12-15 does not create or alter any
substantive rights and is simply a procedural statute, Georgia Power nonetheless
contends that OCGA § 51-12-15 “is the most recent expression of the General
15
Assembly on ... the availability of apportionment,” and thus it controls over OCGA
§ 51-12-33.
As already explained, the prior version of OCGA § 51-12-33 applies to this case,
and under this Court’s binding precedent, Georgia Power is not entitled to apportion
fault under OCGA § 51-12-33(b) (2005).14 See AU Medical Center, 373 Ga. App. at
532(1)(c). To the extent OCGA § 51-12-15 alters whether Georgia Power is entitled
to apportionment, as Georgia Power argues, it is not merely “enforc[ing] existing
obligations, or confirm[ing] existing rights.” Fowler Props., Inc., 282 Ga. at 78(1).
Rather, it alters substantive rights, and as such, retrospective application of OCGA §
51-12-15 to this case does not comport with the Georgia Constitution. See White, 224
Ga. at 325(2).
2. Georgia Power contends that the trial court erred in denying its motion to
exclude the specific causation testimony of Dr. Jerrold Abraham, the Sinyards’ expert,
under Scapa Dryer Fabrics v. Knight, 299 Ga. 286 (788 SE2d 421) (2016). It also
contends that DePasquale’s and Compton’s opinions are inadmissible as unreliable.
14
The 2022 revision to the statute is not retroactive and only applies to cases filed
after May 13, 2022. See Ga. L. 2022, p. 802, §§ 2-3. See, e.g., Southern Oil Refinery, LLC
v. Price, 372 Ga. App. 427, 428(1) n.2 (903 SE2d 693) (2024), disapproved on other
grounds, AU Med. Ctr., 373 Ga. App. at 521. The Sinyards filed suit in 2016.
16
Admissibility of Expert Testimony
“OCGA § 24-7-702 (“Rule 702”) governs the admissibility of expert testimony
and requires that the trial court act as gatekeeper to ensure the relevance and reliability
of expert testimony.” Kershaw v. Princeton Properties Mgmt., 348 Ga. App. 779, 782
(824 SE2d 668) (2019) (physical precedent only) (punctuation omitted). Under Rule
702, the trial court has broad discretion to admit or exclude expert testimony. Miller
v. Golden Peanut Co., 317 Ga. 22, 30(2) (891 SE2d 776) (2023). See also Smith v. CSX
Transp., 343 Ga. App. 508, 510(1) (806 SE2d 890) (2017) (“the determination of
whether a witness is qualified to render an opinion as an expert is a legal determination
for the trial court and will not be disturbed absent a manifest abuse of discretion”)
(punctuation omitted). “The proffering party bears the burden of presenting evidence
of reliability in order to meet the standards of [Rule 702].” Hart v. Phung, 364 Ga.
App. 399, 406(1) (876 SE2d 1) (2022) (punctuation omitted). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise,
if:
(1) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
17
(2) The testimony is based upon sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the
facts of the case.
OCGA § 24-7-702(b).
Causation
“Causation is an essential element of a toxic tort case.” Butler v. Union Carbide
Corp., 310 Ga. App. 21, 30(2) (712 SE2d 537) (2011). In such a 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.” Wadley v. Mother Murphy’s
Laboratories, 357 Ga. App. 259, 263(1) (850 SE2d 490) (2020) (punctuation omitted).
Specific causation is at issue in these appeals.
“Where, as here, the case involves a ‘specialized medical’ question, expert
testimony is required to establish causation.” Kershaw, 348 Ga. App. at 782. See also
Butler, 310 Ga. App. at 30(2). Thus, “[a]bsent reliable expert testimony that exposure
to [asbestos in a Georgia Power facility] contributed to the development of [Sinyard’s]
mesothelioma, there is insufficient evidence to create a jury issue as to causation.”
18
Butler, 310 Ga. App. at 30(2). More specifically, to prove causation in an asbestos-
mesothelioma case, a plaintiff must “show that exposure to asbestos [at the premises
or in the products in question] was a contributing factor in bringing about his
mesothelioma.” Scapa, 299 Ga. at 290 (punctuation omitted). While the contribution
to the resulting injury need not be “substantial,” to show legal causation, a “de
minimis” contribution is not enough. Id. Thus, a plaintiff must show that the
exposure to asbestos by the defendant “made a meaningful contribution” to his
mesothelioma.
In Scapa, our Supreme Court held that the trial court abused its discretion in
admitting the testimony of Dr. Jerrold Abraham—Sinyard’s expert at issue
here—because his testimony did not fit the legal standard for causation in a toxic tort
case. In that case, the plaintiff sued a textile manufacturer claiming that it negligently
exposed him to asbestos while he worked at one of its facilities and thereby caused his
mesothelioma. 299 Ga. at 286–87. Dr. Abraham opined that, “if [the plaintiff] actually
was exposed to asbestos while working at the [manufacturer’s] facility, that exposure
was a cause of his mesothelioma, regardless of the precise extent of the exposure.” Id.
at 287. Dr. Abraham reasoned that “[b]ecause each and every exposure to respirable
19
asbestos in excess of the background contributes to the cumulative exposure, ... each
exposure in excess of the background is a contributing cause of the resulting
mesothelioma, regardless of the extent of each exposure.” Id. at 288. The
manufacturer appealed the jury’s verdict against it, contending that the trial court
erred in admitting Dr. Abraham’s testimony because his theory of cumulative
exposure was not reliable and did not comport with the legal requirements for
causation. Id.
The Supreme Court agreed with the latter argument, explaining:
By his testimony, Dr. Abraham essentially told the jury that it was
unnecessary to resolve the extent of exposure at [the manufacturer’s]
facility—if the jury determined that [the plaintiff] was exposed at the
facility to any asbestos beyond background, that exposure contributed to
his cumulative exposure, and according to Dr. Abraham, it was,
therefore, a contributing cause of the mesothelioma.
299 Ga. at 291. The Court qualified its holding by clarifying that expert testimony
premised upon a cumulative exposure theory could be relevant to causation under
Georgia law if “coupled ... with reliable data sufficient to show that the exposure in
question were more than de minimis[.]” Id. at 291–92. More specifically, and
pertinent to the instant case,
20
if an expert coupled his reliance on the cumulative exposure theory with
reliable data sufficient to show that the exposure in question were more
than de minimis—and if the expert qualified his ultimate opinion as to
causation, conditioning it upon there having been more than a de
minimis exposure—the opinion then might “fit” the pertinent causation
inquiry, notwithstanding that the extent of exposure is disputed. In that
instance, the jury would have to resolve the extent of the exposure, and
if the jury accepted that the exposure was as significant as the data of the
expert suggested, it then could accept his opinion as to causation.
Id. at 291–92.
Admissibility of Christopher DePasquale’s Testimony
(a) DePasquale’s Opinions. Christopher DePasquale is a certified industrial
hygienist, an asbestos inspector, and asbestos management planner and has conducted
industrial hygiene, asbestos management, and indoor air quality studies. DePasquale’s
opinion reviews various industrial hygiene studies regarding asbestos and how those
studies apply to Sinyard’s asbestos exposure. According to DePasquale, he was
retained in order to prepare a report summarizing Sinyard’s exposures to asbestos
based on his review of various materials and documents provided to him by Sinyard’s
21
counsel, including a review of Sinyard’s depositions.15 DePasquale provided “ranges
of exposures as it relates to certain work practices” nonspecific to any particular
premises or defendant. When asked to describe his method for arriving at the exposure
ranges, DePasquale elaborated:
I’ve tried to gain an understanding of Mr. Sinyard’s career, his
opportunities to be exposed to asbestos. I’ve attempted to review the
literature, both published and unpublished, as it relates to exposures
relevant to Mr. Sinyard’s career, trying to identify similar exposure
groups, and then applying that data to Mr. Sinyard.
In most instances, DePasquale took “descriptions of similar work that Mr. Sinyard did
that is reported in the literature ... basically summarizing that reported literature and
giving a range of exposures based on that literature.”16 DePasquale offered ranges of
exposure because “that’s the appropriate way ... based on the existing literature, and
certainly with the acknowledgment that there may be variations, for example, in
environmental conditions, methodologies with regard to how Mr. Sinyard may have
15
In reviewing Sinyard’s depositions, DePasquale “was attempting to gain an
understanding of Mr. Sinyard’s occupational, nonoccupational, [and] potential take-home
exposures relating to asbestos over the course of his lifetime[.]”
16
“Range” specifically refers to a range of asbestos fibers and is measured in a “fiber
per CC measurement.”
22
done the work.” Based on these ranges, it was DePasquale’s opinion that the
tasks/exposures would have increased Sinyard’s risk for the development of
mesothelioma.
(b) Analysis. Georgia Power contends that DePasquale’s “fictional ranges of
exposure” are “divorced from any specific facts of Sinyard’s case.” A review of
DePasquale’s report and testimony flatly contradicts this. And, Georgia Power’s
argument that DePasquale’s opinion must be entirely excluded because he failed to
consider every possible variable in estimating every range of exposure is without merit.
“An expert has great liberty in determining the basis of his opinions. As a general rule,
the factual basis of an expert opinion goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual basis for the
opinion in cross-examination.” Emory Univ. v. Willcox, 355 Ga. App. 542, 545(2) (844
SE2d 889) (2020) (citations and punctuation omitted). Here, “De[P]asquale has used
data as close as possible based on the information available, a technique that other
courts ... have endorsed for exposure reconstruction assessments.” Michel v. Ford
Motor Co., No. CV 18-4738, 2019 WL 118008, at *8(III) (E.D. La. Jan. 7, 2019)
(rejecting similar arguments attacking the reliability and factual basis of DePasquale’s
23
opinions in an asbestos-mesothelioma case). Such issues can be fully explored on
cross-examination. See Old Republic Nat. Title Ins. Co. v. RM Kids, LLC, 337 Ga. App.
638, 646–47(4) (788 SE2d 542) (2016) (affirming trial court’s order denying motion
to exclude expert testimony allegedly not based on reliable data or recognized
methodology where the expert was properly qualified and the facts relied upon were
within the bounds of evidence; questions about whether there was sufficient
knowledge upon which to base an opinion went to the weight and credibility of the
testimony, not its admissibility).
To the extent Georgia Power contends that DePasquale’s opinions should be
excluded because his ranges of exposure are untethered from the alleged exposures at
specific premises, this argument is likewise without merit. DePasquale estimated
“ranges of exposures as it relates to certain work practices,” which Sinyard would
have performed as a pipefitter at sites owned by both Ford and Georgia Power. It is
unclear, and Georgia Power does not elucidate, how this renders DePasquale’s
methodology unreliable or shows that he failed to apply his methodology reliably to
the facts of the case. See OCGA § 24-7-702(b). “The trial court’s broad discretion
afforded [it] considerable leeway in deciding how to assess the reliability of
24
[DePasquale’s] opinion.” Emory Univ., 355 Ga. App. at 544–45(2). The trial court did
not abuse its “broad discretion” in denying the motion to exclude DePasquale’s
opinion evidence.
Admissibility of Dr. Compton’s Testimony
(a) Dr. Compton’s Opinions. Dr. Compton is a microscopist and physicist.
According to his testimony, he reviewed an extensive amount of materials related to
this case, including Sinyard’s testimony. It was Dr. Compton’s opinion that many of
the tasks Sinyard described performing as a pipefitter, as well as the tasks described
involving the drywall mix product, would have released asbestos fibers into the air,
and further that “the concentrations that have been reported in studies evaluating
those types of activities report airborne fiber concentrations that are, generally
speaking, orders of magnitude above ambient levels that were reported by the Agency
for Toxic Substances and Disease Registry.”17 Dr. Compton was prepared to offer
ranges of exposure to asbestos fibers based on each of the activities or products
Sinyard described. His opinions related to the exposures for specific activities but did
17
According to Dr. Compton, the Agency for Toxic Substances and Disease Registry
publishes results which “describe average [ambient asbestos] concentrations from both
rural and urban areas across the U. S.”
25
not calculate cumulative asbestos exposure or dose at any particular work site. He did
not examine the specific gaskets, packing materials, or products handled by Sinyard
nor did he visit the specific sites where Sinyard worked. Dr. Compton clarified that
he was “relying on prior testing that I’ve performed on those types of materials, as
well as the facts of the case; whether it’s testimony of the witnesses or any of the
supporting documents,” including corporate records disclosed by Georgia Power. Dr.
Compton previously had performed tests “that would be relevant to what [Sinyard]
described, but nothing that was designed specifically to evaluate anything he did as
opposed to any other individual who was performing that kind of work.” He had
personally studied and/or tested gaskets and insulating materials. In reaching his
conclusions, Dr. Compton also relied on various studies and research.
(b) Analysis. Georgia Power asserts that Dr. Compton’s “opinions rely entirely
on studies and simulations conducted in a laboratory for litigation purposes” and “do
not reliably apply any scientific principles and methods to the facts of the
case.”(Punctuation omitted.) Georgia Power also takes issue with the fact that none
of the studies Dr. Compton relies on “were conducted specifically for Sinyard’s case
or under the conditions and circumstances experienced by Sinyard,” and that he had
26
not visited any of Sinyard’s work sites, performed air sampling at the work sites, or
tested the specific products used by Sinyard. As explained above in reference to
DePasquale’s testimony, “the factual basis of an expert opinion goes to the credibility
of the testimony, not the admissibility, and it is up to the opposing party to examine
the factual basis for the opinion in cross-examination.” Emory Univ., 355 Ga. App. at
545(2) (punctuation omitted). See also Ovation Condo. Assn. v. Cox, 374 Ga. App. 681,
694(1)(c)(ii) (913 SE2d 819) (2025) (plaintiff’s expert in industrial hygiene “need not
have personally visited [the plaintiff’s] unit or personally inspected the generator to
have a sufficient factual basis for his opinion”). Additionally, such arguments
regarding the reliability of Dr. Compton’s methodologies have been rejected by other
courts. See, e.g., Young v. John Crane, Inc., No. CV 21-4