Background
Charvette E. Monroe, as executrix of her mother Margie G. Evans’s estate, sued Johnson & Johnson alleging that asbestos in Johnson’s Baby Powder caused Evans’s terminal ovarian cancer. After a lengthy trial in 2021, the jury returned a defense verdict. Monroe filed a motion for new trial on the general grounds under OCGA sections 5-5-20 and 5-5-21, arguing the verdict was contrary to the evidence and the principles of justice and equity. The trial court granted the motion, finding the verdict “decidedly and strongly against the weight of the evidence.”
Johnson & Johnson obtained interlocutory review and raised three arguments on appeal: (1) OCGA section 5-5-50’s limitation on appellate review of new trial grants violates the constitutional right to a jury trial; (2) the trial court’s order failed to provide the individualized reasoning required by OCGA section 5-5-51; and (3) the law and facts required a defense verdict.
The Court’s Holding
The Court of Appeals affirmed on all three issues. First, the court declined to reach Johnson & Johnson’s constitutional challenge to OCGA section 5-5-50 because the company failed to raise it in its application for interlocutory appeal. The court held that just as an application for discretionary appeal limits review to the errors actually enumerated, an application for interlocutory appeal likewise limits review to the issues set forth in the application. Johnson & Johnson’s vague footnote reference to potential unconstitutionality did not constitute a proper constitutional challenge.
Second, the court rejected the argument that the trial court’s order lacked sufficient reasoning. Citing Jackson National Life Ins. Co. v. Snead, the court reaffirmed that a new trial order complies with OCGA section 5-5-51 when it states that the verdict was contrary to the evidence, the principles of justice and equity, and was decidedly and strongly against the weight of the evidence. The court also declined to require more detailed findings, noting that OCGA section 5-5-51 expressly provides that new trial orders need not conform to the detailed findings required by OCGA section 9-11-52.
Third, the court held that the trial court did not abuse its discretion in granting the new trial. Under OCGA section 5-5-50, the first grant of a new trial can be reversed only if the evidence “absolutely demanded” the defense verdict. The causation evidence was sharply conflicting: one plaintiff’s expert (Dr. Roggli) conceded that “asbestos doesn’t cause ovarian cancer,” while three other plaintiff’s experts (Drs. Moline, Jameson, and Chan) testified that asbestos-containing talc does cause ovarian cancer and specifically caused Evans’s cancer. Given this conflict, the evidence did not demand a verdict for Johnson & Johnson.
Key Takeaways
- Under OCGA section 5-5-50, the first grant of a new trial receives extraordinary deference: it will be reversed only when the evidence “absolutely demanded” the verdict as rendered. This standard, in practical effect, makes a trial court’s first grant of a new trial nearly unreviewable on appeal.
- A new trial order satisfies OCGA section 5-5-51’s written-reasons requirement by reciting the general-grounds standard language — no case-specific factual findings are required.
- Constitutional challenges to statutes governing appellate procedure must be clearly raised in the application for interlocutory appeal, not raised for the first time after the appeal is docketed. A passing footnote reference to potential unconstitutionality is insufficient.
- In toxic tort cases with conflicting expert testimony on causation, the trial court retains broad discretion to grant a new trial even after a defense verdict, because the conflict itself prevents the evidence from “absolutely demanding” the verdict.
Why It Matters
This decision is significant for Georgia personal injury and products liability practitioners on multiple levels. For plaintiffs’ attorneys, it confirms that OCGA section 5-5-50 remains a powerful shield for new trial grants, particularly in complex cases with conflicting expert testimony on causation. For defendants, it underscores the narrow window for challenging a trial court’s exercise of discretion to grant a new trial and the critical importance of preserving all appellate arguments — including constitutional ones — in the interlocutory application itself. The case also reflects the ongoing national talc-asbestos litigation landscape, with Georgia courts now confronting the same causation disputes that have produced massive verdicts and significant defense victories in other jurisdictions.