Key Points

  • The Georgia Court of Appeals affirmed a partial retrial limited to whether Becton, Dickinson and Company and C. R. Bard specifically intended to cause harm, after one juror recanted her agreement on that interrogatory alone.
  • The $20 million compensatory and $50 million punitive findings were unanimous and severable; the intent finding decides whether punitive damages are capped at $250,000.
  • OCGA § 51-12-5.1 presumes but does not require the same jury for every phase; OCGA § 51-12-15 did not apply absent a pretrial written demand.
  • The majority held errors omitted from an interlocutory application waived for that appeal; Judge Whitaker dissented on that point.

The Georgia Court of Appeals on Tuesday ruled that a former truck driver who blames his lymphoma on ethylene oxide from a Covington sterilization plant need not retry his whole case against Becton, Dickinson and Company and C. R. Bard. The court affirmed an order sending only one question to a new jury: whether the companies specifically intended harm, the finding that decides whether a $50 million punitive award stands or falls to a $250,000 statutory cap.

Presiding Judge Doyle wrote for the panel, and Judge Markle concurred. Judge Whitaker joined that ruling but dissented from a second holding: that the companies waived four other claims of error by leaving them out of their application for an interlocutory appeal.

The decision keeps in place the jury's findings that the companies were negligent and created a nuisance, its $20 million compensatory award and its $50 million punitive award. It also extends an earlier 2026 ruling to hold that, in an interlocutory appeal, the court reviews only issues listed in the application.

The companies have operated a medical equipment sterilization facility, a distribution center and warehouses in Covington for more than 50 years. Their process uses ethylene oxide, which, the opinion says, the U.S. Environmental Protection Agency and others have found carcinogenic in humans. Gary Walker hauled material to and from the facilities almost daily from 1970 to 1999 and lived within two miles of them from 1991 to 2017.

Walker was diagnosed in 2017 with diffuse large B-cell lymphoma. A 2019 news article alerted him to the facilities' high emissions, and he sued in November 2021, alleging negligence and nuisance.

At the companies' request, the trial, which began April 14, 2025, was split into liability and punitive damages phases. In the first phase, the jury found for Walker, awarded $20 million and found that punitive damages were warranted.

In the second phase, the jury sent the court several questions about one interrogatory: "Do you find that the Defendants believed the consequences of their acts were certain, or substantially certain, to result in harm and still went ahead with their acts?" They deadlocked on it, and the judge gave an Allen charge.

Later that day, the jury awarded $50 million and answered that question against the companies. When the defense asked for a poll, Juror 1 recanted. "Your Honor, I defer to the group. ... We were told to be unanimous," she said. Called back into the courtroom, she said her only disagreement was with that question and that the jury had been unanimous on the amount.

The trial judge first declared a mistrial on the entire punitive phase, then narrowed it to the intent question, ordered a retrial on that issue alone, and certified the ruling for immediate appeal.

The companies sought a full retrial on liability and punitive damages. Doyle relied on Martin v. Six Flags Over Georgia II, L.P., a 2017 decision holding that "[l]imiting the scope of retrial to only those distinct portions of the judgment that are infirm serves the dual objectives of judicial economy and respect for the jury's verdict."

"The Defendants have presented no convincing reason why the issue of specific intent to harm cannot be severed and decided separately from the unanimous portions of the verdict," Doyle wrote. A full retrial would repeat much of the same evidence anyway, the opinion noted.

The panel also rejected the argument that Georgia's punitive damages statute requires the same jurors to decide every phase. "The plain language of the statute may presume the same group of jurors will make the decision, but nothing in the language requires it," Doyle wrote.

The companies also invoked a new statute, effective April 21, 2025, that requires the same judge and jury for each phase of a trifurcated trial. The court held that it did not apply because the companies never filed the required written demand before the pretrial order. The panel did not reach a constitutional jury-trial argument the trial court never ruled on.

In the opinion's second part, the majority applied Johnson & Johnson v. Monroe, decided after this appeal was docketed. Johnson & Johnson held that the court lacked jurisdiction over a constitutional claim missing from an interlocutory application. Doyle agreed with the companies that the case decided only that point but wrote that "the broader premise still holds."

Doyle reasoned that the court often dismisses interlocutory appeals as improvidently granted, which "would not be possible" if the statute required it to decide every enumerated error. In a footnote, Doyle wrote that the waived claims remain preserved "and the issues may be raised by [the Defendants] in any future appellate review available to them," quoting Brown v. Hall County.

Whitaker read the statute, which directs review of all rulings "raised on appeal," differently. "In the face of OCGA § 5-6-34 (d)'s clear and unambiguous language, it is unsound to conclude that Appellants waived interlocutory review of any issue they did not raise in their initiating application," Whitaker wrote. If the court wants to limit its review, the dissent said, "it should say so in its order granting the application."

Amicus briefs were filed by Dr. Lisa Miller, the Georgia Trial Lawyers Association, the Advanced Medical Technology Association, the Georgia Defense Lawyers Association and the Products Liability Advisory Council.

The case now returns to the trial court for a retrial on specific intent, and the trial court has declined to enter final judgment until a jury decides that question unanimously. Motions for reconsideration must be received by 4:30 p.m. on the 10th day after the decision. Certiorari has been applied for in Johnson & Johnson, No. S26C1825.