McCARNEY v. PA LEX GLEN, LLC

784 S.E.2d 438, 336 Ga. App. 271
CourtCourt of Appeals of Georgia
DecidedMarch 22, 2016
DocketA15A1684
StatusPublished
Cited by1 cases

This text of 784 S.E.2d 438 (McCARNEY v. PA LEX GLEN, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCARNEY v. PA LEX GLEN, LLC, 784 S.E.2d 438, 336 Ga. App. 271 (Ga. Ct. App. 2016).

Opinions

McFadden, Judge.

Kevin McCarney filed this action for personal injury, among other claims, alleging that his landlord, the defendant PA Lex Glen, LLC, failed to keep his apartment in good repair and that the mold in his apartment caused his sinus condition to worsen. The trial court granted summary judgment to PA Lex Glen.

On appeal, McCarney argues that the trial court erred in granting PA Lex Glen summary judgment on his negligence claim because the testimony of his medical expert was sufficient to create a question of fact as to causation. We agree and therefore reverse the grant of summary judgment on McCarney’s personal injury claim. But we conclude that McCarney has abandoned his other arguments and therefore affirm the grant of summary judgment on his other claims.

1. Facts.

When reviewing the grant of the defendant’s motion for summary judgment, “[w]e view the evidence in the light most favorable to the plaintiff and give [him] the benefit of all reasonable doubts and inferences.” Phillips v. King, 214 Ga. App. 712 (448 SE2d 780) (1994) (citation omitted). Viewed in this light, the record shows that McCarney lived at the Nevadan Apartments from August 2012 until September 2013. In late August or early September 2013, McCarney spoke with the tenants who lived in the unit above him who claimed that they believed they had mold in their apartment. Later that day, McCarney inspected the ventilation shaft in his apartment and saw what he described as a “black substance.” McCarney’s roommate also discovered that the air conditioning system was leaking in his closet, and the wall of the closet was covered in a black substance, about a [272]*272foot high and a foot wide, about six inches off the ground. McCarney’s apartment also experienced leaks in the bathroom ceiling, leaks in the kitchen sink, issues with the dishwasher not draining, and problems with the air conditioning not cooling.

On September 3, McCarney e-mailed the Nevadan a notice concerning the condition of his apartment, demanding that management take immediate action to remove the mold. The Nevadan property manager observed the ventilation shaft and did not see any mold. But she hired a mold inspection company to inspect the ductwork, and approved a work order for the duct’s replacement. McCarney, on his own accord, hired a separate company to perform a mold analysis. On September 25, 2013, McCarney notified the Nevadan that he was cancelling the lease due to the mold contamination in the apartment.

Earlier, during his residency at the Nevadan, McCarney had started receiving treatment for sinus problems from Dr. Raymond Louis Schettino, an ENT specialist. On June 17, 2013, Schettino performed sinus surgery on McCarney.

McCarney filed suit against PA Lex Glen, the owner of the Nevadan, alleging nuisance, maintenance of a continued nuisance, damages to real and personal property, negligent and intentional infliction of emotional distress, defective construction, breach of contract, breach of covenant for quiet enjoyment, and personal injury. Both McCarney and PA Lex Glen moved for summary judgment, and the trial court granted summary judgment to PA Lex Glen on all of McCarney’s claims.

2. Personal injury.

The trial court granted summary judgment on McCarney’s personal injury claim because it found no genuine issue of material fact as to causation. McCarney argues this was error because expert testimony created a fact question on that issue.

The diagnosis and potential continuance of a disease or other medical condition are medical questions to be established by physicians as expert witnesses and not by lay persons. Thus, we have required expert medical testimony, based at least on reasonable probability, to establish a causal link between exposure to a substance and a medical condition.

Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160 (3) (b) (658 SE2d 909) (2008) (citations and punctuation omitted). In 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. Fouch v. Bicknell [273]*273Supply Co., 326 Ga. App. 863, 869 (756 SE2d 682) (2014). The testimony must show a probable cause, as distinguished from a mere possible cause. Id. As detailed below, Schettino’s testimony met this standard and was sufficient to withstand summary judgment on McCarney’s personal injury claim.

In his deposition, Schettino testified that he removed mold from McCarney’s nose through surgery. He also testified that when McCarney’s symptoms did not improve after surgery, he recommended that McCarney move out of his apartment. While he could not state with a reasonable degree of medical certainty that the source of the mold he removed from McCarney’s nose was the same mold at the Nevadan, he did testify that McCarney’s continued sinus problems after surgery showed a high likelihood that the mold in the Nevadan contributed to his condition. Schettino testified:

Q. And can you say within a reasonable degree of medical probability that you feel the environment contributed to these symptoms? And the environment, we’re referring to the apartment he lived in.
A. Whether or not that caused it, I cannot say that it caused the original problem, but what I can say is from my clinical experience having taken care of so many of these patients, it definitely contributed to his prolonged care and some of his problems.
Q. Could you say within a reasonable degree of medical probability that it aggravated his condition?
A. Contributed in my mind would be considered aggravated; otherwise I wouldn’t recommend people to be removed from the environment. I don’t make that recommendation lightly.

(Emphasis supplied.) That the conditions of the mold aggravated McCarney’s sinuses is not stated in terms of mere possibility; viewing the evidence in the light most favorable to McCarney, Schettino testified that to a reasonable degree of medical certainty the mold in McCarney’s apartment worsened his medical condition. Schettino testified that the conditions of McCarney’s apartment “definitely contributed” to McCarney’s condition. This testimony provides the probability testimony regarding causation needed to withstand a motion for summary judgment. See Rodrigues v. Georgia-Pacific Corp., 290 Ga. App. 442, 445 (661 SE2d 141) (2008) (compare Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 710 (2) (505 SE2d 232) (1998) (expert medical testimony that the alleged negligence “may have contributed” to the patient’s injury and death was legally insufficient to establish causation)).

[274]*274Moreover, even if the medical testimony had been stated only in terms of a “possible” cause, it would be sufficient because it is supplemented by probative nonexpert testimony on causation. See Estate of Patterson, 233 Ga. App. at 708 (2).

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784 S.E.2d 438, 336 Ga. App. 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarney-v-pa-lex-glen-llc-gactapp-2016.