Key Points

  • The Georgia Court of Appeals held that applying OCGA 51-12-15, enacted in the 2025 Tort Reform Act, to a mesothelioma suit filed in 2016 would violate the Georgia Constitution's ban on retroactive laws.
  • The court reasoned that the right of apportionment is a substantive right affecting a defendant's liability and a plaintiff's ability to collect, relying on F.H. Ross & Co. v. White on contribution.
  • Under the 2005 version of OCGA 51-12-33 and the court's 2024 AU Medical Center v. Dale decision, Georgia Power, as the only remaining defendant, is not entitled to apportionment of fault to settled defendants Ford and Union Carbide.
  • The court affirmed the denial of Georgia Power's motions to exclude plaintiffs' experts Christopher DePasquale, Dr. Steven Compton and Dr. Jerrold Abraham, distinguishing Scapa Dryer Fabrics v. Knight because Abraham now relied on exposure ranges and testified that each separately described exposure was substantial.
  • The court affirmed the denial of Georgia Power's renewed summary judgment motion on equal knowledge, finding a genuine dispute over whether Georgia Power had superior knowledge of the asbestos hazard.

Georgia Power Co. cannot use a provision of Georgia's 2025 tort-reform law to have a jury assign fault to two companies that settled out of a decade-old asbestos lawsuit, the Georgia Court of Appeals ruled Tuesday. The court held that applying the new statute to the case would violate the state constitution's prohibition on retroactive laws.

The three-judge panel unanimously affirmed a trial court order that left Georgia Power as the only defendant in a 2016 suit brought by Kevin Sinyard, a pipefitter, and his wife, who claim that asbestos exposure caused his malignant pleural mesothelioma. Chief Judge Brown wrote the opinion, and Mercier and Epps concurred.

The General Assembly provided that most of the 2025 Tort Reform Act would apply to pending cases "unless such application would be unconstitutional." The panel held that the exception covers apportionment, the process by which a jury assigns percentages of fault among those responsible for an injury, because apportionment is a substantive right rather than a rule of procedure.

The panel also upheld the trial court's refusal to exclude three of the Sinyards' expert witnesses, including Dr. Jerrold Abraham, a pathologist whose causation testimony the Georgia Supreme Court found inadmissible in a 2016 asbestos case. And it rejected Georgia Power's renewed bid for summary judgment, which argued that Sinyard and his employers knew as much about asbestos as the utility did.

Sinyard worked as a pipefitter for more than 25 years. Between 1979 and 1986 he worked as an independent contractor at four Georgia Power plants: Scherer, Branch, McDonough and Vogtle. He was diagnosed in 2014, and the couple sued Georgia Power, Ford Motor Co., Union Carbide Corp. and others in 2016.

After a mediation, the Sinyards settled with Ford and Union Carbide, and the three jointly moved to drop the two companies from the case. Georgia Power objected that dismissing them "could adversely affect substantial rights of Georgia Power to apportionment of fault and damages." The trial court dismissed the two companies anyway and ruled that Georgia Power was not entitled to apportionment.

Georgia Power acknowledged that it had no right to apportionment under the statute in force when the suit was filed, the 2005 version of OCGA 51-12-33. In AU Medical Center v. Dale, a 2024 decision, the Court of Appeals read that statute to allow apportionment only when more than one defendant remains in the case at trial. In a footnote, Georgia Power asked the panel to overrule that decision as "wrongly decided as argued by the dissent." The panel wrote: "We decline."

The utility instead relied on OCGA 51-12-15, which took effect as part of the Tort Reform Act on April 21, 2025. That statute lets any party in a bodily injury or wrongful death case elect a trial in three phases before the same jury: fault first, including the "percentage of fault of all persons or entities that contributed" to the injury, then compensatory damages, then punitive damages and fees.

Georgia Power argued that the new law "changes absolutely nothing about how fault is actually distributed" and instead "changes the timing for when fault determinations are made and requires apportionment in a trifurcated trial." The panel agreed that the statute "is a procedural vehicle for the apportionment statute," citing a September 2026 decision of the court. But Georgia Power also argued that the 2025 law controlled as the legislature's latest word on whether apportionment is available.

The panel rejected that argument. "To the extent OCGA § 51-12-15 alters whether Georgia Power is entitled to apportionment, as Georgia Power argues," Brown wrote, the statute does more than enforce existing rights. "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."

The panel relied on a 1968 Georgia Supreme Court decision, F.H. Ross & Co. v. White, which held that "[t]he right of contribution between joint trespassers is a substantive right" that a new statute could not create retroactively. Brown wrote that the distinctions drawn in that line of 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."

On the expert testimony, Georgia Power argued that Abraham was offering "cumulative exposure" opinions materially identical to the testimony the Georgia Supreme Court held was wrongly admitted in Scapa Dryer Fabrics v. Knight. In that case, the high court wrote, Abraham "essentially told the jury that it was unnecessary to resolve the extent of exposure."

The panel found the testimony different this time. Abraham relied on exposure ranges prepared by Christopher DePasquale, an industrial hygienist, and, "in contrast to his testimony in Scapa," testified that Sinyard "had substantial asbestos exposure from each of those exposures that are separately described." The trial court "acted well within its 'substantial discretion'" in refusing to exclude the opinions, Brown wrote.

The court likewise declined to exclude DePasquale and Dr. Steven Compton, a microscopist and physicist. Georgia Power had called DePasquale's figures "fictional ranges of exposure" divorced from the facts. "A review of DePasquale's report and testimony flatly contradicts this," Brown wrote.

On Sinyard's knowledge, Georgia Power relied on testimony from David Rosner, the Sinyards' own state-of-the-art expert, that asbestos hazards were well known by 1978. The panel found that Rosner's testimony "is equivocal and, at times, unclear as to whether companies like Sinyard's employers should have known about asbestos hazards" when Sinyard worked at the plants. Whether Georgia Power had superior knowledge of the danger remained a question for the jury, the court held.

The appeal was interlocutory, taken before trial. Under the court's rules, motions for reconsideration must be received by 4:30 p.m. on the 10th day after the decision.