James P. Highsmith filed a negligence and strict liability action against John Crane, Inc. and others1 based on allegations that he had contracted mesothelioma as a result of exposure to asbestos dust from products manufactured by the defendants. Highsmith died approximately six months after the complaint was filed, and his wife Lois Highsmith, who was also the executrix of his estate, was substituted as the plaintiff and allowed to file an amended complaint adding claims for wrongful death and loss of consortium. The jury returned a verdict in favor of Highsmith, and the trial court entered judgment on the verdict in the amount of $1,266,377. The trial court denied John Crane’s Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial, and John Crane filed the present appeal to this Court. 1. John Crane first contends that the trial court erred by refusing to charge the jury that John Crane’s products must have been a “substantial” contributing factor to Highsmith’s injuries.2 As John Crane acknowledges, this exact issue was before the Supreme Court following the grant of certiorari in the case of John Crane, Inc. v. Jones , 262 Ga. App. 531 586 SE2d 26 2003, and the parties agree that the Supreme Court’s decision in that case is controlling here. Our Supreme Court has now decided this issue adversely to John Crane, John Crane, Inc. v. Jones , __Ga.__ Case Number S03G1791, decided November 8, 2004 and thus for the reasons set forth in that opinion, we find this enumeration to be without merit.
2. John Crane also contends that the trial court erred by failing to charge the jury that John Crane was not a manufacturer of the gasket material at issue in this case, and that, therefore, as a product seller it could be found liable only under a negligence theory. OCGA § 51-1-11.1. In its brief to this Court, John Crane asserts that it “merely packaged and sold gaskets in a container with the ‘John Crane’ label. It had no input in the design or creation of the gasket material and made no modifications to the gaskets prior to re-packaging.”3 However, John Crane does not provide any citation to the transcript to show that evidence was presented at trial to show that it was merely a supplier of the gasket material, and it does not point to any of the numerous pre-trial documents it filed to show that this was one of the many disputed issues between the parties.4 Instead, John Crane relies solely on a remark made by Highsmith’s counsel during post-trial colloquy with the trial court that John Crane characterizes as a stipulation on this issue. However, the transcript further discloses that Highsmith’s counsel went on to argue that testimony presented at trial showed that the gaskets used at the plant where Highsmith worked were John Crane gaskets with John Crane’s name on them, and that John Crane had not put forth any evidence that it was not the manufacturer of these gaskets. Based on this argument, the trial court denied John Crane’s motion for directed verdict on this issue. Moreover, the court’s charge to the jury adequately instructed the jury on theories of both strict liability and negligence. Since the evidence here was unclear as to whether John Crane was merely a supplier of the gasket material used in the plant where Highsmith worked, we cannot say that the trial court erred by refusing to give the requested charge. See Buchan v. Lawrence Metal Products, Inc. , __Ga. App.__ Case No. A04A1044, decided November 1, 2004 defendant can be both a manufacturer and a seller of a product; Dean v. Toyota Indus. Equip. Mfg. , 246 Ga. App. 255, 257 1 540 SE2d 233 2000 same.
