By Morgan Conley
Law360 (November 24, 2021, 5:49 PM EST) – The Georgia Supreme Court refused on Tuesday to review a ruling that plaintiffs were too late in bringing strict liability claims against a Georgia-based company they say packaged Johnson & Johnson baby powder that contained asbestos, causing a woman’s ovarian cancer.
The high court didn’t give a reason when it denied certiorari to Shirley and Richard Eubanks, letting stand a ruling from June by a Georgia Court of Appeals panel finding that strictliability claims against PTI Royston LLC are time-barred.
The lower appellate court reversed a trial court order that found the statute of repose did not affect claims made under the state’s Asbestos Claims Act, ruling that the act’s language only refers to statutes of limitations, not to repose, and thus the general tort statute of repose still applies.
According to court documents, PTI blended, tested, bottled and packaged Johnson & Johnson’s baby powder at its facility in Royston, Georgia, from August 2005 through 2019. Shirley Eubanks alleged that asbestos in that powder caused her ovarian cancer.
In December 2019, the Eubankses brought claims against several Johnson & Johnson companies and affiliates, including PTI and Arizona-based Cyprus Amax Minerals Co., which was dropped as a defendant in September 2020. They accused Johnson & Johnson of falsely representing the talc as safe and asbestos-free, and of concealing information to the contrary. The other defendants in the suit are not parties to this appeal.
In its June ruling, the Georgia Court of Appeals panel said that while state law stipulates that the limitations period on an asbestos claim doesn’t start until the person exposed obtains evidence of a physical impairment, “notwithstanding any other provision of law,” that clause only applies to statutes of limitations, not to the statute of repose, which starts from the time a customer first buys or uses a product.
The panel said the ruling was consistent with the state legislature’s intent, as the statute of repose is in place to limit the tolling of strict liability claims, while the language of the asbestos act works to extend the period of time to file lawsuits for those affected.
But the panel remanded the dispute to the trial court with instructions to consider whether the Eubankses’ fraud allegations warrant blocking PTI from using the statute of repose as adefense.
While the trial court had held that Shirley Eubanks’ claims were tolled until she discovered she had cancer, PTI argued in April that under Georgia’s statute of repose, the 10-year period or her to file suit began when she started to use the product in 1963.
In its June opinion, the panel agreed with PTI, saying the language of the provisions in the general tort statute of repose and the asbestos act does not conflict, as the statute of repose refers to when an action can be “commenced” regardless of whether a claim has already accrued, while the asbestos act requires evidence of an injury, just as a statute of limitations does.
Counsel for the parties didn’t immediately return requests for comment Wednesday.
The Eubankses are represented by Roy E. Barnes, John R. Bevis, Benjamin R. Rosichan and Kristen Tullos Oliver of the Barnes Law Group LLC, and by Robert D. Cheeley, Amy Parker Zupancic and Andre T. Tennille III of Cheeley Law Group LLC.
PTI Royston is represented by Eric T. Hawkins and David C. Marshall of Hawkins Parnell & Young LLP and Caroline Tinsley, Mike Ruttinger and Charissa Walker of Tucker Ellis LLP. The suit is Eubanks et al. v. PTI Royston LLC, case number S21C1283., in the GeorgiaSupreme Court.
–Additional reporting by Mike Curley and Rosie Manins. Editing by Lakshna Mehta. Update: This story has been updated with additional counsel information for PTI Royston.