Evidence of specific levels of exposure to asbestos not necessary to prove causation

Law Reporter, May 2002

Fulmore v. CSX Transp., Inc., 557 S.E.2d 64 (Ga. Ct. App. 2001). The Georgia Court of Appeals held that plaintiffs suing their employer for injuries related to asbestos exposure do not need to prove the specific minimum level of exposure.

Here, railroad employees who had contracted asbestosrelated diseases sued their employer under the Federal Employers' Liability Act (FELA), 45 U.S.C. 5 1 et 51 etseq., alleging defendant failed to provide them with a safe workplace, among various other claims.

Defendant moved for summary judgment, arguing that plaintiffs failed to present evidence regarding the amount of asbestos they were exposed to. The trial court granted the motion.

Reversing on this issue, the appellate court noted that, in FELA actions, plaintiffs have a relaxed burden in proving causation and must only provide a reasonable basis for a jury to conclude an employer's negligence was a factor in producing the alleged injuries.

Here, most of the plaintiffs have contracted asbestosis, a condition that results only from an overexposure to asbestos. Thus, the proof of asbestosis conclusively establishes overexposure to the substance. Consequently, because the purpose of a dosage level is to determine at what level asbestos exposure becomes dangerous, the existence of asbestosis renders dosage information irrelevant, the court reasoned.

The court also rejected defendant's argument that its only duty was to protect against foreseeable dangers and, thus, if plaintiffs cannot show what the minimum dangerous dose was during the time of their employment, they cannot establish a breach. Defendant, the court said, cannot avoid liability merely because plaintiffs cannot produce data from tests that defendant itself failed to perform.

Consequently, the trial court erred in granting defendant summary judgment based on plaintiffs' failure to provide dosage information.

Plaintiffs' Counsel

*Roger B. Lane, Brunswick, Ga.

*Mark J. Bujold, Brunswick, Ga.