BARKO RESPONSE TEAM v. PHILLIP SUDDUTH

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

December 19, 2016

In the Court of Appeals of Georgia
A16A1722. BARKO RESPONSE TEAM, INC. v. SUDDUTH et al. JE-063

ELLINGTON, Presiding Judge.

Phillip Sudduth filed this action in the State Court of Gwinnett County against

Amica Mutual Insurance, Co. and Barko Response Team, Inc., alleging, inter alia,

that Barko was negligent in performing mold remediation services in his home and

that he was sickened by exposure to mold. The trial court denied Barko’s motion for

summary judgment, and Barko appeals, contending that there is no evidence that its

alleged negligence caused Sudduth’s illnesses and, therefore, that it is entitled to

judgment as a matter of law.1 For the reasons explained below, we reverse.

1
This Court granted Barko’s application for an interlocutory appeal pursuant to
OCGA § 5-6-34 (b).
 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 judgment as a matter of law[.]” OCGA § 9-11-56 (c). “Where a defendant moving

for summary judgment discharges this burden, the nonmoving party cannot rest on

its pleadings, but rather must point to specific evidence giving rise to a triable issue.”

(Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697

SE2d 779) (2010). “In response to a properly supported motion for summary

judgment which pierces the pleadings, plaintiffs may not stand upon their allegations,

but must come forward with evidence to contravene defendants’ proof or suffer

judgment.” (Citation omitted.) Bowden v. Pryor, 215 Ga. App. 351 (450 SE2d 845)

(1994). See also Wade v. Howard, 232 Ga. App. 55, 59 (499 SE2d 652) (1998)

(accord).

Summary judgments enjoy no presumption of correctness on appeal, and
an appellate court must satisfy itself de novo that the requirements of
OCGA § 9-11-56 (c) have been met. In our de novo review of the grant
[or denial] of a motion for summary judgment, we must view the
evidence, and all reasonable inferences drawn therefrom, in the light
most favorable to the nonmovant.

2
 (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. at 624 (1) (a).

Viewed in a light most favorable to Sudduth as the nonmovant, the record

shows the following. On September 29, 2011, Phillip and Elaine Sudduth discovered

that a water supply line to their refrigerator was leaking, resulting in water damage

to the kitchen flooring and cabinets and the accumulation of two inches of water in

the basement. Sudduth contacted his homeowner’s insurer, Amica. During an

inspection, Sudduth and an Amica representative found black mold under the kitchen

floor tiles. Amica referred Sudduth to Barko, and he contracted with Barko to provide

“emergency services” which included drying of the home over a period of a week

beginning on October 21, 2011.

Sudduth filed the instant action against Amica and Barko, alleging, inter alia,

that Barko, acting as Amica’s representative, was negligent in failing to remediate

mold in the home and that he suffered physical injury from exposure to mold.2

Sudduth alleged that beginning in March 2012, five months after Barko serviced his

home, he “began feeling sick” and he “experienced back pain, bruising, headaches,

muscle and joint aches, numbness and tingling in the legs, insomnia, dizziness,

2
Elaine Sudduth, Phillip Sudduth’s wife, also alleged a claim for loss of consortium.
The trial court’s ruling applied to her derivative claim, and she joins her husband in
opposing this appeal.

3
 depression, irritability, blurred vision, memory loss, fibromyalgia, a heightened

allergic reaction to various substances, and general weakness.” Sudduth also asserted

claims against Barko for economic loss and attorney fees.

Barko filed a motion for summary judgment on Sudduth’s negligence claim for

personal injury, as well as Sudduth’s other claims. In its motion, Barko argued, inter

alia, that Sudduth failed to present any medical expert testimony, or other evidence,

of a causal relationship between Sudduth’s alleged personal injuries and any actions

or inactions of Barko, as required under Georgia law.3 In response, Sudduth

3
See Cowart v. Widener, 287 Ga. at 622, 628 (2) (b) (“[E]xpert evidence is required
where a ‘medical question’ involving truly specialized medical knowledge (rather than the
sort of medical knowledge that is within common understanding and experience) is needed
to establish a causal link between the defendant’s conduct and the plaintiff’s injury.”
Therefore, “the link between a defendant’s actions and the plaintiff’s injury is beyond
common knowledge and experience” in “toxic tort” cases.) (citations omitted; emphasis
in original); Hunnicutt v. Hunnicutt, 237 Ga. 497 (228 SE2d 881) (1976) (“The diagnosis
and potential continuance of a disease are medical questions to be established by
physicians as expert witnesses and not by lay persons.”) (citations omitted); Fouch v.
Bicknell Supply Co., 326 Ga. App. 863, 869 (1) (756 SE2d 682) (2014) (“[I]n toxic tort
cases, proof of causation generally requires reliable expert testimony which is based, at the
least, on the determination that there was reasonable probability that the negligence caused
the injury. The testimony must show at least a probable cause, as distinguished from a mere
possible cause.”) (citations and punctuation omitted; emphasis in original); Seymour
Electrical & Air Conditioning Svc. v. Statom, 309 Ga. App. 677, 680 (710 SE2d 874)
(2011) (Under Georgia law, even if it is “common knowledge that certain fumes are
generally dangerous to breathe, a plaintiff still must present expert medical evidence
establishing that the fumes caused that particular plaintiff’s medical problems.”) (citation
omitted; emphasis in original); Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160 (3) (b)

4
 maintained that the causal link is a matter of “common knowledge. . . . It is common

knowledge that people get sick from exposure to mold.” He also argued that he was

“diagnosed by a medical doctor. [He] eventually became very ill as a result of

exposure to mold[.]” Sudduth submitted an affidavit dated November 17, 2015, from

Donald Dennis, M. D., showing that he is an ear, nose, and throat specialist and is

board certified in otolaryngology and head and neck surgery. In his affidavit, Dr.

Dennis deposed that he treated Sudduth in 2012 “for severe mold allergies arising

from exposure to high amounts of mold in his home.” Dr. Dennis’s affidavit attached

a letter he had drafted “to whom it may concern,” dated August 6, 2012, which states:

This patient has severe fungal allergies. His home . . . has high levels of
toxic mold, and therefore, it is a medical necessity that he get out of the
house and not take anything with him and get into a safe place. After a
hearing, the trial court denied Barko’s motion for summary judgment.

In related arguments, Barko contends that the trial court erred in denying its

motion for summary judgment as to Sudduth’s personal injury claim, because he

failed to identify any record evidence from which a jury could find a causal

(658 SE2d 909) (2008) (Georgia law requires “expert medical testimony, based at least on
reasonable probability, to establish a causal link between exposure to a substance and a
medical condition.”) (punctuation and footnotes omitted).

5
 relationship between his alleged injuries and Barko’s alleged negligence.4 In

particular, Barko contends that Sudduth is required to present expert medical

testimony of causation, and that Sudduth cannot rely on a “common knowledge”

argument, nor can he rely on a “temporal proximity” argument, to establish causation.

Abandoning the “common knowledge” argument he made before the trial court,

Sudduth concedes that, in a claim for personal injuries arising from alleged negligent

exposure to toxic mold, Georgia law requires the plaintiff to present expert testimony

to establish proof of specific medical causation. He contends that he presented some

expert testimony on the issue of causation, that is, Dr. Dennis’s affidavit and attached

letter, and that the expert testimony was permissibly “supplement[ed]” with

“circumstantial evidence of [the] temporal proximity” of his exposure and his illness.

As the Supreme Court of Georgia explained in a recent decision, an expert’s

opinion on causation in a toxic tort case is admissible only if the expert concludes that

the plaintiff’s exposure to a toxic substance made at least a “meaningful contribution”

to his injuries. Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 291 (788 SE2d 421)

4
Barko did not raise any argument on appeal regarding Sudduth’s claims for
economic loss (Count 2) and attorney fees (Count 5). Accordingly, we have not reviewed
for error the trial court’s denial of Barko’s motion for summary judgment as to those
claims.

6
 (2016). As quoted above, Dr. Dennis did not give any opinion on the degree to which

Sudduth’s exposure to mold contributed to his injuries. Furthermore, he did not state

the basis for his understanding that there were “high levels of toxic mold” in

Sudduth’s home (suggesting he relied solely on what Sudduth told him), and he does

not give the factual basis for his opinion that the mold caused Sudduth’s illnesses (no

clinical examination notes, no blood test or other clinical test results, no analysis of

mold spores, no epidemiological data, no animal studies, no toxicological data, no

experimental results, no learned treatises reflecting a consensus in the scientific

community, etc.).5 See OCGA § 24-7-702 (To be admissible, expert testimony must

be based upon sufficient facts or data, the product of reliable principles and methods,

the result of the reliable application of the principles and methods to the facts.). We

conclude that Dr. Dennis’s affidavit and attached letter do not constitute expert

testimony that is sufficient to clear the summary judgment threshold as proof that

Sudduth’s exposure to mold in his home made at least a meaningful contribution to

5
See Kilpatrick v. Breg, Inc., 613 F3d 1329, 1335 (11th Cir. 2010) (discussing
various forms of evidence which may support a finding that expert testimony meets the
standard of reliable scientific knowledge); In re Accutane Products Liability, 511 F. Supp.
2d 1288, 1290-1303 (M.D. Fla. 2007) (same); Siharath v. Sandoz Pharm. Corp., 131
FSupp2d 1347, 1356-1374 (N.D. Ga. 2001), aff’d sub nom. Rider v. Sandoz Pharm. Corp.,
295 F3d 1194 (11th Cir. 2002) (same).

7
 his alleged injuries. Seymour Electrical & Air Conditioning Svc. v. Statom, 309 Ga.

App. 677, 681 (710 SE2d 874) (2011) (Where there was no expert medical testimony

submitted to the trial court to establish the causal connection between the plaintiffs’

respiratory conditions and the carbon monoxide in their house, the trial court erred

in denying the defendant’s motion for summary judgment.); Allstate Ins. Co. v.

Sutton, 290 Ga. App. 154, 159-160 (3) (b) (658 SE2d 909) (2008) (Where there was

no expert medical testimony submitted to the trial court to establish the causal

connection between the plaintiffs’ respiratory conditions and the mold in their house,

summary judgment was proper for the defendant.) (punctuation and footnotes

omitted).6

Moreover, contrary to Sudduth’s contention, we conclude that the gaps left by

the scant medical testimony are not filled in by probative nonexpert testimony of a

causal link between Barko’s alleged negligence and his alleged injuries.7 This is not

6
Cf. McCarney v. PA Lex Glen, LLC, 336 Ga. App. 271, 273 (784 SE2d 438) (2016)
(physical precedent only) (Testimony from the plaintiff’s doctor that “to a reasonable
degree of medical certainty the mold in [the plaintiff’s] apartment worsened his medical
condition” and that “the conditions of [the] apartment ‘definitely contributed’ to [the
plaintiff’s] condition” provided the probability testimony regarding causation needed to
withstand a motion for summary judgment.).
7
See Estate of Patterson v. Fulton DeKalb Hosp. Auth., 233 Ga. App. 706, 708 (2)
(505 SE2d 232) (1998) (referencing “a number of cases which, while apparently admitting

8
 a case where the plaintiff was apparently in good health before the toxic exposure and

experienced the onset of symptoms closely following his exposure to the toxin.8 Here,

that medical evidence showing only a possibility of causal relation between an accident or
injury and subsequent death or physical or mental impairment is not, by itself, sufficient
to establish such relation, uphold the view that such evidence, in conjunction with other
evidence, non-expert in nature, indicating that such a relation exists, although likewise not
sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts
and circumstances of the case showing that death or physical disability would naturally and
probably result from the injury, is sufficient to establish the causal relation”) (citations and
punctuation omitted); but see Kilpatrick v. Breg, Inc., 613 F3d at 1343 (The plaintiff could
not “overcome the fact that [the physician’s] specific causation testimony [was] rooted in
a temporal relationship” that failed to show a causal relationship between the plaintiff’s
medical condition and the insertion of a medical device manufactured by the defendant.
“Proving a temporal relationship does not establish a causal relationship. Simply because
a person takes drugs and then suffers an injury does not show causation. This is a classic
‘post hoc ergo propter hoc’ fallacy which assumes causation from temporal sequence. It
literally means ‘after that, because of this.’ It is called a fallacy because it makes an
assumption based on the false inference that a temporal relationship proves a causal
relationship.”) (citations and punctuation omitted; emphasis in original); McClain v.
Metabolife Intl., Inc. 401 F3d 1233, 1243, 1254 (11th Cir. 2005) (“[P]roving a temporal
relationship between [consuming a nutritional supplement] and the onset of symptoms does
not establish a causal relationship.” Therefore, “the temporal connection between exposure
to chemicals and an onset of symptoms, standing alone, is entitled to little weight in
determining causation.”) (citations and punctuation omitted; emphasis in original).
8
Cf. McCarney v. PA Lex Glen, LLC, 336 Ga. App. at 274 (2) (784 SE2d 438)
(2016) (physical precedent only) (stating in dicta that, “even if the medical testimony had
been stated only in terms of a ‘possible’ cause, it would [have been] sufficient because it
[was] supplemented by probative nonexpert testimony on causation[,]” specifically, the
plaintiff’s “testimony of his apparent good health and the onset of his sinus symptoms
closely following his exposure to mold could suffice to fill any gaps left by the physician’s
testimony”) (citations and punctuation omitted).

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the record showed that, for years before the September 2011 water leak that Barko

was called in to remediate, Sudduth had lived and worked in mold-contaminated

environments and that he had suffered multiple health issues including respiratory

problems, chronic obstructive pulmonary disease (attributed to a history of cigarette

smoking), back pain, and chronic pain syndrome. In addition, as Barko notes,

Sudduth has not shown such a temporal proximity as might authorize an inference of

cause-and-effect, given the five-month gap between the development of the mold and

the onset of his symptoms. For the foregoing reasons, we conclude that the trial court

erred in denying Barko’s motion for summary judgment on Sudduth’s personal injury

claim and Elaine Sudduth’s claim for loss of consortium.

Judgment reversed. Branch and Mercier, JJ., concur.

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