Potts v. UAP-GA AG CHEM, INC.

490 S.E.2d 432, 227 Ga. App. 841, 97 Fulton County D. Rep. 2782, 1997 Ga. App. LEXIS 894
CourtCourt of Appeals of Georgia
DecidedJuly 14, 1997
DocketA97A0816
StatusPublished
Cited by5 cases

This text of 490 S.E.2d 432 (Potts v. UAP-GA AG CHEM, INC.) 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
Potts v. UAP-GA AG CHEM, INC., 490 S.E.2d 432, 227 Ga. App. 841, 97 Fulton County D. Rep. 2782, 1997 Ga. App. LEXIS 894 (Ga. Ct. App. 1997).

Opinions

Andrews, Chief Judge.

Potts, Jr., administrator of the estate of Rusty LeBlanc, LeBlanc’s widow, Phillips, and Phillips on behalf of LeBlanc’s minor child appeal from the trial court’s grant of summary judgment to UAP-GA AG CHEM, Inc. (UAP) and Register, a UAP employee, in their wrongful death and survival action1 alleging fraud and intentional infliction of emotional distress against UAP and Register.

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party,, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [842]*842jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the 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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewing the evidence, it was that LeBlanc, 29 years old, worked for UAP at its Sylvester, Georgia branch as a truck driver. That branch had four employees, including LeBlanc. Defendant Register was the branch manager, Jordan was the warehouse manager, and Phillips worked in the warehouse.2 UÁP accepted and distributed farm chemicals, including pesticides, and provided applicators to farmers for applying its products to their fields.

On Friday, August 13, 1993, Register gave instructions to Jordan that one of the applicators be washed off. He was aware that LeBlanc could be asked to perform such a task. Phillips and LeBlanc then washed off all ten to fifteen applicators on the lot. The applicators had granular chemicals caked on them and it was necessary to use a pressure washer to dislodge the chemicals. After cleaning the applicators, LeBlanc became nauseated, suffered a headache, and became dizzy. LeBlanc told his wife upon arriving home that he had gotten chemicals on him. He suffered nausea, diarrhea, and vomiting through the weekend and missed work on Monday.

On Friday, August 20, LeBlanc told Phillips that he had again washed the applicators while Phillips was gone and had again gotten ill. On Saturday, his wife took LeBlanc to Palmyra Hospital’s emergency room where he was given fluids and sent home with direction to return if he did not improve. Early Sunday morning, he returned to the hospital and was admitted by Dr. Frankos. LeBlanc advised Dr. Frankos of his daily exposure to chemicals. Dr. Frankos treated LeBlanc for acute gastroenteritis and was of the opinion that chemical poisoning was “pretty low on the list” of potential diagnoses. LeBlanc was released on August 24 on a clear liquid diet for 24 hours, then a bland diet for 24 hours, and scheduled for a followup visit.

[843]*843LeBlanc’s wife took him to Worth County Hospital on August 24, 1993, because of his continuing nausea, diarrhea, and vomiting, and he was admitted to Dr. Capps’ service. Dr. Capps was aware that LeBlanc had previously been in Palmyra Hospital and was told by LeBlanc that he suspected food poisoning or that “he had been exposed on his job to chemicals.” Dr. Capps found his symptoms to be consistent with those caused by a cholinesterase inhibitor, an organophosphate used in farm chemicals, and performed tests to pursue this issue.

On August 25, Dr. Capps “put him on Atropine [an antidote for a cholinesterase inhibitor] and while on Atropine changed his Don-natal to Donnagel, which doesn’t contain the Atropine-like substance that Donnatal does, so I didn’t want to duplicate that.” Dr. Capps also testified that, in his experience, exposure to organophosphates tended to be a fairly acute, short-lived toxic experience and, based on his conversation with Register on LeBlanc’s third day of hospitalization, “I feel like I’ve treated him for a period long enough to cover the kind of exposure that I’m familiar with. ... So that’s why, ... on the date I indicated that I went ahead and stopped the Atropine. I really felt like I had done all I could do with that without any more specific information.”

Dr. Capps discontinued the Atropine on August 27 at 1:10 a.m. because “I felt that the main purpose of Atropine in that form and in that dosage would be to cover the possibility that he had been exposed to a toxic chemical. I expected that exposure to result in a short-term toxic syndrome, and I had been reassured by his employer [Register] that he could not possibly have been exposed to any chemicals. . . . [H]e said, ‘he’s not around chemicals.’ ” Had he been advised by Register of exposure to such chemicals, “the only thing I would have done differently had I been told the specific nature of a poison is to try to find out if it had any weird, unexpected, long-term or any permutation on this general theme that should alter my approach.”

LeBlanc improved on August 29, but then worsened on August 30. Although LeBlanc had been taken off Atropine, “[h]e was getting anticholinergics the entire time. I never discontinued anticholinergics. He was switched from Atropine to an oral form. I doubt the anticholinergics were stopped until he got to Palmyra.”

Dr. Capps transferred him to Palmyra Hospital where he was seen by Dr. Burnette on August 30 to consider the possibility of gall bladder problems. Dr. Burnette determined the problem was not the gall bladder and, based on LeBlanc’s and his wife’s statement that, two weeks previously, he had been exposed to chemicals, he was again administered Atropine. When LeBlanc did not improve, his care was transferred to Dr. Dorsey, an internist who was also told [844]*844about LeBlanc’s exposure to chemicals.

Dr. Dorsey examined LeBlanc, including reviewing records of the earlier Palmyra stay and was aware from Dr. Burnette’s history as well as LeBlanc’s information that LeBlanc had been exposed to chemicals. Dr. Dorsey did not have LeBlanc’s records from his Worth County Hospital stay. Despite continued treatment by Dr. Dorsey, LeBlanc died on September 3, 1993. Although an autopsy was performed, no definitive cause of death was identified by the pathologist, Dr. Isele. Dr. Isele was asked if he had ruled out “absolutely acetylcholinesterase poisoning” and replied “[i]n my mind, yes.” Also, Dr. Dorsey testified that “I did not feel that Mr.

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Related

Potts v. UAP-GA AG CHEM, Inc.
510 S.E.2d 841 (Court of Appeals of Georgia, 1998)
Potts v. UAP-GA. AG. CHEM., Inc.
506 S.E.2d 101 (Supreme Court of Georgia, 1998)

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Bluebook (online)
490 S.E.2d 432, 227 Ga. App. 841, 97 Fulton County D. Rep. 2782, 1997 Ga. App. LEXIS 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potts-v-uap-ga-ag-chem-inc-gactapp-1997.