This appeal arises from a pending products liability lawsuit that plaintiffs/appellees Rhonda and Gary Fields filed against a number of manufacturers, suppliers, and sellers of certain asbestos-containing products, including defendants/appellants Union Carbide Corporation “Union Carbide”, Georgia-Pacific, LLC “Georgia-Pacific”, CBS Corporation, a Delaware Corporation, f/k/a Viacom, Inc., Successor by Merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation “CBS-Westinghouse”, and Kuhlman Electric Corporation “Kuhlman” collectively, “Defendants”. The Fieldses moved for partial summary judgment on the issue of nonparty fault, seeking to preclude Defendants from presenting the potential fault of numerous nonparty entities for purposes of apportioning Defendants’ potential damages. The trial court granted the Fieldses’ motion. Union Carbide, Georgia-Pacific, and CBS-Westinghouse appeal this ruling in Case No. A11A2025;1 Kuhlman appeals the same partial summary judgment ruling in Case No. A11A2026. As Kuhlman’s appeal in Case No. A11A2026 presented the same issue for review, this Court granted Kuhlman’s motion to consolidate with Case No. A11A2025. Union Carbide also includes an additional enumeration of error in Case No. A11A2025, in which it challenges the denial of its motion for summary judgment on the grounds that the Fieldses failed to present admissible expert testimony establishing that Union Carbide’s product was the cause of Mrs. Fields’ mesothelioma. For the foregoing reasons, we 1 affirm the grant of the Fieldses’ motion for partial summary judgment and 2 affirm the denial of Union Carbide’s motion for summary judgment. The standards for reviewing summary judgments are settled. Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 c. Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. . . . Where a . . . moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Citations and punctuation omitted. Cowart v. Widener , 287 Ga. 622, 623 1 a 697 SE2d 779 2010. “Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Citations and punctuation omitted. Gallagher v. Buckhead Community Bank , 299 Ga. App. 622, 623 683 SE2d 50 2009. So viewed, the record shows that Mrs. Fields allegedly contracted peritoneal mesothelioma as a result of her childhood exposure to asbestos dust from various sources. These sources included her father’s work clothing —the Fieldses allege that her father was exposed to asbestos-containing products during his 1966 to 1988 employment with Georgia Power Company. Another alleged source of exposure was a joint compound product used in the 1973 construction of Mrs. Fields’ family home. The Fieldses also asserted that Mrs. Fields was exposed to asbestos from her family’s performance of automotive brake work. In their complaint, the Fields alleged that Defendants, along with a number of other companies, were responsible for either mining, manufacturing, processing, importing, converting, compounding, selling, or distributing the asbestos-containing products to which Mrs. Fields was exposed.
1. Fieldses’ Motion for Partial Summary Judgment. In their respective answers, each Defendant in this case affirmatively pled the defense of nonparty fault, seeking to attribute fault to nonparties to the litigation instead of themselves. Pursuant to a 2005 amendment, Georgia law permits the allocation of fault to a nonparty for purposes of apportioning damages among the named defendants. See OCGA § 51-12-33 c “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.”; see also Custer v. Terex Corp. , 196 F. App’x 733, 737-738 III A 1 11th Cir. 2006 noting that subsection c of OCGA § 51-12-33 amended Georgia’s comparative negligence statute to permit the allocation of fault to a nonparty. “Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties,” and findings of fault against a nonparty “shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.” Punctuation omitted. OCGA § 51-12-33 f 1, 2. Thus, under this State’s statutory scheme, the effect of a successful nonparty defense is the reduction of the plaintiff’s potential award and the defendant’s possible liability. As with other affirmative defenses, Defendants have the burden at trial to prove the defense of nonparty fault. Cf. Hodge v. SADA Enterprises , 217 Ga. App. 688, 691 2 458 SE2d 876 1995 indicating that a defendant has the burden at trial to prove affirmative defenses of contributory and comparative negligence.
