Lightfoot v. Georgia-Pacific Wood Products LLCLightfoot v. Georgia-Pacific Wood Products LLC
This matter is before the court on defendants’ motions for summary judgment (DE 209, 213). The motions have been briefed fully, and the issues raised are ripe for ruling. For the following reasons, the motions are granted.
STATEMENT OF THE CASE
Plaintiff commenced this action in state court, in Fulton County, Georgia, on January 7, 2016, for personal injuries, including a form of sinonasal cancer, allegedly sustained as a result of exposure to wood dust associated with products manufactured and sold by defendants. Plaintiff asserts claims for negligence and products liability, and plaintiff seeks damages including compensatory and punitive damages.1
Following an initial period of discovery, defendants filed on December 1, 2017, motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert motions”) to exclude and strike certain expert opinions and reports. On September 20, 2018, the court granted in part and denied in part the Daubert motions, allowed certain sanctions in favor of defendants, allowed a period of supplemental expert discovery, and allowed for expanded summary judgment briefing to accommodate additional issues, if any, arising from supplemental expert discovery. See Lightfoot v. Georgia-Pac. Wood Prod., LLC, No. 7:16-CV-244-FL, 2018 WL 4517616, (E.D.N.C. Sept. 20, 2018) (“September 20, 2018, Order”).
On December 21, 2018, the court denied defendants’ motion for reconsideration, made further determination regarding attorney’s fees regarding expert discovery, and clarified the scope of expert testimony of plaintiff’s expert, Rachael Jones (“Jones”). See Lightfoot v. Georgia-Pac. Wood Prod., LLC, No. 7:16-CV-244-FL, 2018 WL 6729636 (E.D.N.C. Dec. 21, 2018) (“December 21, 2018, Order”).
Defendants filed the instant motions for summary judgment on June 3, 2019. In support of its motion, defendant Georgia-Pacific relies upon a memorandum of law, statement of material facts, and the following exhibits: 1) depositions of plaintiff and plaintiff’s father, Thomas
In support of its motion, defendant Weyerhaeuser Company (“Weyerhaeuser”) relies upon a memorandum of law, statement of material facts, and the following exhibits, in addition to those categories of documents relied upon by defendant Georgia-Pacific: 1) expert reports and declaration of Jones; 2) expert reports of Marion J. Fedoruk (“Fedoruk”) and Ellen T. Chang (“Chang”); 3) IARC monograph dated 1987; 4) depositions of Weyerhaeuser employee, Van Fidino; former employee and corporate representative of former-defendant Lowe’s, John Steed (“Steed”); and Fedoruk; 5) reports on wood dust and cancer by the U.S. Department of Health and Human Services (“HHS”), National Institute for Occupational Safety and Health (“NIOSH”) (2017), and National Toxicology Program (“NTP”) (2016); and 6) MSDSs and other internal documents and correspondence regarding “wood dust” generated by defendant Weyerhaeuser.
In opposition to defendant Weyerhaeuser’s motion for summary judgment, plaintiff relies upon a memorandum of law, response statement of facts, and the following exhibits, in addition
In opposition to defendant Georgia-Pacific’s motion for summary judgment, plaintiff relies upon a memorandum of law, response statement of facts, and the following exhibits, in addition to exhibits already relied upon: 1) a copy of a NIOSH document described as “OSHA coments from the January 19, 1989 Final Rule on Air Contaminants Project extracted from 54 FR 2332 et seq.”; 2) cover page to IARC 1977 monograph on asbestos; 3) deposition of defendant Georgia-Pacific’s expert James J. Stark (“Stark”); and 4) a copy of rules published by OSHA in Federal Register, June 7, 1972, relating to asbestos dust.
Defendants filed replies in support of the instant motions on July 22, 2019, each relying upon a reply statement of material facts, as well as Appendix 4 to the 1981 IARC monograph, defendant Lowe’s responses to plaintiff’s discovery, and categories of depositions and discovery responses previously relied upon.
STATEMENT OF FACTS
The court previously summarized certain background facts in the record derived from deposition testimony of plaintiff and plaintiff’s father, viewed in the light most favorable to plaintiff, in its September 20, 2018, order, as follows:
Plaintiff was born on July 16, 1974. (Pl’s Dep. 12). He lived with his family at a house in Winfall, Perquimans County, North Carolina, as a child until he left for college in Fall 1992. (Id. 34, 104). Plaintiff’s father maintained a building in the back yard of the property as a woodworking shop (the “wood shop” or “shop”) during the time that plaintiff was living at home. (Id. 214). The shop was about 20 feet square with a concrete pad, one window, an[d] one entryway comprised of an outer “barn door” and an interior door. (Id. 215-216). The shop was expanded by another 10 to 15 feet on one side in 1988. (Id. 298-299).
In the shop, there was a workbench, tool cabinet, and space for overhead wood storage. (Id. 218-221). The shop did not have mechanical ventilation or air conditioning, and the doors were kept open when it was hot. (Id. 215-217). There were a number of tools in the shop including a table saw, circular saw, band saw, sanders, grinders, drills, and other woodworking tools. (T. Lightfoot Dep. 45, 127-129).
Plaintiff’s father engaged in substantial woodworking activities in the wood shop during the years that plaintiff was at home. Plaintiff’s father made 15 to 20 picnic tables per year; 30 to 50 vegetable bins per year; 30 to 50 trash cans per year; and four to five chair swings per year. (Pl’s Dep. 258-260, 296). Plaintiff’s father made these items to sell to individuals in and around the community where he lived. (Id. 231, 240-241, 388-389). Plaintiff’s father also made items for the family, including kitchen cabinets, an entertainment center, and fence slats. (Id. 271-275). He completed home remodeling projects, including flooring, paneling, and stairs. (Id. 283-287). Starting during plaintiff’s senior year of high school (1991-1992), plaintiff’s father refinished furniture for individuals in the community. (Id. 264-267).
Plaintiff’s father acquired the wood used for the aforementioned projects primarily (about 60%) from a Weyerhaeuser mill where he worked as a mechanic, taking from a source of “reject wood” or “no value” in the mill. (T. Lightfoot Dep. 69, 76). Such wood was “mostly” pine. (Id.). Plaintiff’s father acquired the remainder of his wood from Lowe’s and Builders Discount Supply. (Id. 70). Such wood was supplied by Weyerhaeuser and Georgia-Pacific, and it was comprised of “mostly” pine and “some oak.” (Id. 71, 74). Plaintiff’s father used a “combination of pine and oak . . . sometimes.” (Id. 74, 81). Pieces were constructed in the form of boards of various sizes and “plywood.” (Id. 72). The entertainment center was constructed of birch and plywood. (Id.; Pl’s Dep. 275). The vegetable bins were constructed of “mainly pine” but also birch “from time to time.” (Pl’s Dep. 243).
Plaintiff assisted his father with the aforementioned projects in varying amounts and with varying tasks between the age six (in 1981) and 18 (in 1992). Between the age six to nine, plaintiff mainly assisted with cleaning in the shop, including sweeping and shoveling wood dust, handing tools to his father, and moving items around the shop. (Pl’s Dep. 221-223; T. Lightfoot Dep. 62). He also used a “little” electric sander. (T. Lightfoot Dep. 133). Beginning at age ten, plaintiff used a range of tools such as power drill, saws, and sanders in assisting
with all phases of his father’s wood projects, in addition to continuing with cleaning in the shop. (Id.; Pl’s Dep. 234-235, 250-251). With respect to hours spent in the shop, plaintiff typically spent about five hours a week in the shop between age six to nine; 20-25 hours per week between ages ten and 18 (Pl’s Dep. 224, 251-253). These amounts varied in some years and seasons of the year depending on other activities in which plaintiff was involved. For example, plaintiff worked in the shop less in his senior year (1991-1992) because he had a 20-30 hour per week job at Hardees. (Id. 221). In the start of his tenth grade year, August through November 1989, plaintiff played junior varsity football. (Id. 85-86). Plaintiff worked more hours in the shop in springtime and summertime than wintertime. (Id. 230). 70 percent of such time was spent inside the shop and 30 percent outside. ([Id.] 229).
Plaintiff attended college at North Carolina A&T University, where he obtained a bachelor’s of science in electrical engineering. (Id. 104-105). Plaintiff also more recently earned a master’s degree in management from Georgia Tech University. (Id. 106). Plaintiff has worked in several positions in the technology and telecommunications industry, and is presently employed by Google, Inc. (Id. 124).
In April 2014, plaintiff was diagnosed with “intestinal-type adenocarcinoma” (“ITAC”), a form of sinonasal cancer (“SNC”). (DelGaudio Dep. 18; Saba Dep. 18).
(Sept. 20, 2018, Order at 6-8).3
Additional undisputed facts as pertinent to the instant motions may be summarized as follows. Plaintiff’s father worked at the Weyerhaeuser lumber mill in Plymouth, North Carolina, for approximately thirty years, including the time period from 1981 to 1992 when plaintiff was working in their home shop (the “exposure period”). (Pl’s Opp. Wy. Stmt. (DE 219) ¶ 63; Pl’s Opp. G-P Stmt. (DE 222) ¶ 8).4 His job duties as a mechanic at the mill were not to process lumber or wood, but rather to repair machinery. (Pl’s Opp. Wy. Stmt. (DE 219) ¶ 64).
An internal Weyerhaeuser “technical report,” dated March 5, 1981, states:
Much of the current research devoted to investigating the health effects of wood and wood dust say that some wood dusts have a tendency to promote dermatitis, mucosal irritation, pulmonary disease (lung disease), and nasal cancer. Yellow pine has not been implicated as a wood capable of eliciting mucosal irritation, lung disease or nasal cancer.
(DE 220-43 at 14) (underlining in original).
In 1983, OSHA promulgated its first HazCom rule, for the purpose of ensuring that “the hazards of all chemicals produced or imported by chemical manufactures or importers are evaluated, and that information concerning their hazards is transmitted to affected employers and employees within the manufacturing sector.” (48 Fed. Reg. 53340). “This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which is to include container labeling and other forms of warning, material safety data sheets and employee training.” Id. The rule expressly exempted “[w]ood or wood products” from its requirements. (Id.).
The 1983 HazCom rule states the following with respect to carcinogens:
OSHA has determined that a definition criteria for what constitutes a carcinogen for purposes of this standard is necessary since there may be differences of opinion concerning certain substances . . . . OSHA has concluded that a chemical is to be identified as one which poses a carcinogenic hazard when either the National Toxicology Program [NTP], the International Agency for Research on Cancer [IARC], or OSHA itself, publishes a finding that the available information indicates the chemical is a potential or confirmed carcinogen. Employers can determine whether a chemical meets these by consulting the publications of these organizations, or by looking it up in the NIOSH Registry of Toxic Effects of
Chemical Substances (RTECS). RTECS entries indicate the findings of NTP, IARC, and OSHA.
(48 Fed. Reg. 53295). In addition, this rule states: “OSHA has defined a carcinogen for purposes of communication of hazards as any substance found to be a confirmed or suspected carcinogen by the International Agency for Research on Cancer [IARC], the National Toxicology Program [NTP], or OSHA. Use of these sources should eliminate much controversy involved in defining and identifying carcinogens.” (48 Fed. Reg. 53336).
A Georgia-Pacific MSDS for “wood dust” bearing an “effective date” of September 1985 states: “Avoid prolonged or repeated breathing of wood dust in air.” (DE 211-10 at 4, 7). Regarding carcinogenicity, it states: “Not listed in Second Annual Report on Carcinogens, NTP, 1981.” (Id. at 5). Under the heading “other pertinent data” it states: “Exposure to wood dust has been statistically associated with nasal cancer in British furniture workers. (CODATA Bulletin, November 1978).” (Id.).
The 1987 NIOSH report states:
The association between nasal cancer and occupations involving exposure to wood dust has been clearly established in the literature. . . [T]he association between nasal adenocarcinoma and wood dust exposure is particularly strong among furniture industry workers, although other woodworkers have also been shown to be at risk. Similarly, exposure to hardwoods has been implicated most often, but there are several reports implicating softwoods as well.
(DE 215-24 at 33).
The 1987 IARC monograph reported “an increased risk of nasal adenocarcinoma among workers in the furniture and cabinet-making industry.” (DE 215-11 at 5). “Epidemiological data reported here and previously . . . provides sufficient evidence that nasal adenocarcinomas have been caused by employment in the furniture-making industry. The excess risk occurs (mainly) among those exposed to wood dust.” (Id. at 6).
Weyerhaeuser MSDSs, bearing “revised” dates April 1988 and July 1989, state: “Wood dust has been alleged to cause nasal / paranasal sinus cancer (certain European hardwoods, oak and beech).” (DE 215-27 at 2; 215-28 at 2).
Georgia-Pacific MSDSs for “wood dust” bearing an “effective date[s]” of October 1987 and July 1989 state: “Avoid prolonged or repeated breathing of wood dust in air.” (DE 211-12 at 4, 7; DE 211-13 at 3, 4). Regarding carcinogenicity, they state: “Not listed as a carcinogen by IARC, NTP, ACGIH or OSHA.” (DE 211-12 at 5; DE 211-13 at 3). Under the heading “other pertinent data,” the July 1989 MSDS states: “Although Exposure to wood dust has been statistically associated with nasal cancer in furniture workers in Britain and some other countries, OSHA has recently regulated it as an irritant dust only.” (DE 211-13 at 3).
The 1995 IARC monograph states: “occupational exposure to wood dust is causally related to adenocarcinoma of the nasal cavities and paranasal sinuses.” (DE 211-14 at 202). As a concluding “Evaluation,” the monograph states: “There is sufficient evidence in humans for the carcinogenicity of wood dust.” (Id. at 204) (italics in original). As an “Overall evaluation,” it states “Wood dust is carcinogenic to humans.” (Id.) (italics in original). As a footnote to the “Overall evaluation,” it states: “This evaluation is based on the observation of a marked increase in the occurrence of cancers of the nasal cavities and paranasal sinuses among workers exposed predominately to hardwood dusts.” (Id.).
An October 11, 1995, letter published by OSHA states that, due to the findings in the 1995 IARC monograph, “the MSDS for hardwood species and those sheets for mixed species of hardwoods and soft woods must be identified as a carcinogen as required under 29 CFR 1910.1200(g)(2)(vii). MSDSs for softwood species (not mixed with hardwoods) do not have to be identified as being carcinogenic.” (DE 211-26 at 2). It further states: “[T]here were two few studies to sufficiently evaluate the cancer risk attributable to the workplace exposure to softwood species. In the few studies that have been completed, the risk of cancer from exposure to soft woods appears to be elevated, however there is not enough evidence to make a final determination.” (Id.).
According to the 2016 NTP report, “Wood dust is known to be a human carcinogen.” (DE 215-25) (italics in original). According to the 2016 NTP report, it was “First listed in the Tenth Report on Carcinogens (2002).” (Id.).
Additional facts will be discussed in the analysis herein.
COURT’S DISCUSSION
A. Standard of Review
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Once the moving party has met its burden, the non-moving party must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation omitted). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).
“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [non-movant’s] favor.” Id. at 255; see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.”).
Nevertheless, “permissible inferences must still be within the range of reasonable probability, . . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment
B. Analysis
In opposition to summary judgment, plaintiff advances products liability and negligence claims based upon a failure to warn.6 Both claims have the same essential elements: 1) duty, 2) breach, 3) causation, and 4) damages. See Stegall v. Catawba Oil Co. of N. C., 260 N.C. 459, 464 (1963); Crews v. W.A. Brown & Son, Inc., 106 N.C. App. 324, 329 (1992);
1. Duty to Warn
A duty to warn, under North Carolina law, is codified in
(a) No manufacturer or seller of a product shall be held liable in any product liability action for a claim based upon inadequate warning or instruction unless the claimant proves that the manufacturer or seller acted unreasonably in failing to provide such warning or instruction, that the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought, and also proves one of the following:
(1) At the time the product left the control of the manufacturer or seller, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm to a reasonably foreseeable claimant.
(2) After the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm to a reasonably foreseeable user or consumer and failed to take reasonable steps to give adequate warning or instruction or to take other reasonable action under the circumstances.
North Carolina common law also recognizes similarly a duty to warn. “[A] manufacturer or seller of a product, which to his actual or constructive knowledge involves danger to users has a duty to give warning of such dangers.” Stegall, 260 N.C. at 464. Liability arises for a supplier of a product, “if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.” Id. (quoting Restatement, Torts, § 388)).
Under North Carolina law, “state-of-the-art evidence helps shape the duty owed by the alleged tortfeasor.” Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 280 (4th Cir. 1993). “State of the art represents all of the available knowledge on a subject at a given time, and this includes scientific, medical, engineering, and any other knowledge that may be available.” Id. “State of the art includes the element of time: What is known and when was this knowledge available.” Id. at 281. State-of-the-art evidence may include reference to “OSHA regulations” and “OSHA-mandated guidelines.” Id. “State-of-the-art evidence, because it often is scientific in nature and results from a cumulative review of a field over time, should not be applied retroactively
In this case, plaintiff seeks damages for developing sinonasal cancer from wood dust (Compl. ¶¶ 10, 20, 25, 26 (2)).7 Thus, the issue presented is whether defendants had a duty to warn plaintiff of a danger of developing sinonasal cancer from wood dust, during the exposure period. For multiple reasons set forth below, based upon undisputed evidence in the record, defendants did not have a duty to warn plaintiff of a danger of developing sinonasal cancer from wood dust during the exposure period. Defendants’ duty is informed both by the state of the art during the exposure period, and by the unforeseeability of risk of harm to a consumer such as plaintiff’s father. The court addresses these issues in turn below.
a. State of the Art
The state of the art regarding carcinogenicity, as reflected in OSHA HazCom regulations and the definitive scientific sources to which they point for reliance, is that wood dust was not known to be a carcinogen until designated as such by the IARC in 1995. In that year, IARC published its monograph declaring, for the first time, “[w]ood dust is carcinogenic to humans.” (DE 211-14 at 204) (italics in original).8 In that same year, OSHA stated that, due to the findings in the 1995 IARC monograph, “the MSDS for hardwood species and those sheets for mixed species
Prior to 1995, OSHA HazCom regulations did not require identification of wood dust as a carcinogen. Importantly, OSHA HazCom regulations during the exposure period, starting in 1983, stated that “a definition criteria for what constitutes a carcinogen for purposes of this standard is necessary since there may be differences of opinion concerning certain substances.” (48 Fed. Reg. 53295). “OSHA has concluded that a chemical is to be identified as one which poses a carcinogenic hazard when either the [NTP], [IARC], or OSHA itself, publishes a finding that the available information indicates the chemical is a potential or confirmed carcinogen.” (Id.). During the exposure period, neither NTP nor IARC had published such a finding with respect to wood dust. Plaintiff also has not brought forth any other “available knowledge” of carcinogenicity of wood dust constituting state of the art during the exposure period. Horne, 4 F.3d at 280.
Thus, based on the state of the art during the exposure period, wood dust was not a known cause of sinonasal cancer, “the harm for which damages are sought,”
Plaintiff nonetheless raises several categories of evidence in an effort to establish defendants had a duty to warn plaintiff wood dust was a carcinogen during the exposure period. None of these create a genuine issue of material fact. For example, plaintiff describes materials produced by defendant Weyerhaeuser during the exposure period as showing “the dangers associated with wood products.” (Opp. G-P Mot. (DE 221) at 10; see Opp. Wy. Mot (DE 218) at 10). But, whether defendants should have warned generally of “dangers associated with wood products” is not a material issue in this case. Rather, the material issue is whether there was a duty
In a fourth cited report, from 1987, defendant Weyerhauser states: “Much of the current research devoted to investigating the health effects of wood and wood dust say that some wood dusts have a tendency to promote . . . nasal cancer.” (DE 223-23 at 14). Similarly, Weyerhaeuser MSDSs cited by plaintiff from the same time state: “Wood dust has been alleged to cause nasal / paranasal sinus cancer (certain European hardwoods, oak and beech).” (DE 215-27 at 2; 215-28 at 2). However, because these statements are limited to describing research claims and allegations, instead of conclusions, as well as limited to “some wood dusts,” or hardwoods, or excluding yellow pine, the statements do not define the state of the art regarding carcinogenicity of wood dust as pertinent to the instant case. Moreover, the MSDSs expressly note wood dust is “Not listed” in any NTP, IARC, or OSHA “Carcinogenicity Listing.” (Id.).
Likewise, plaintiff cites a 1985 Georgia-Pacific MSDS that states “[e]xposure to wood dust has been statistically associated with nasal cancer in British furniture workers.” (DE 211-10 at 5). Because the statement describes only a “statistical[] associat[ion]” limited to a population to which plaintiff does not belong, the statement likewise does not define the state of the art regarding carcinogenicity of wood dust as pertinent to the instant case. As plaintiff also notes, this distinction is made plain in the MSDS itself, which expressly states: “CARCINOGENICITY: Not listed in Second Annual Report on Carcinogens, NTP, 1981.” (DE 223-26 at 5) (underlining in original). Thus, defendants’ internal documents do not constitute a state of the art determination that wood dust causes cancer.
The pertinent issue, however, is whether the state of the art during the exposure period viewed a statistical association, or connection between nasal cancer and certain occupations, populations, or contexts, as synonymous with wood dust being designated as a carcinogen or causing cancer. Plaintiff cites to no evidence treating the two as synonymous during the exposure period. Indeed, the contemporaneous evidence in the record suggests to the contrary, particularly where OSHA “determined that a definition criteria for what constitutes a carcinogen for purposes of this standard is necessary since there may be differences of opinion concerning certain substances,” and “OSHA has concluded that a chemical is to be identified as one which poses a carcinogenic hazard when either the [NTP], [IARC], or OSHA itself, publishes a finding that the available information indicates the chemical is a potential or confirmed carcinogen.” 48 Fed. Reg.
Moreover, the importance of the “carcinogenicity” designation in the state of the art during the exposure period is illustrated by the fact that NTP, NIOSH, and IARC do not designate wood dust as a carcinogen during the exposure period, but then later do expressly identify wood dust as a carcinogen after the exposure period. If their earlier findings were equivalent to a determination that wood dust is a carcinogen, then there would have been no need for a further, and different, statement that wood dust is a carcinogen in the 1995 IARC monograph, and NTP publication. (DE 211-14 at 204; DE 215-25).9
Plaintiff also argues that defendants’ knowledge of the “carcinogenic properties” of their own products “is not determined by when such was recognized by a governmental agency.” (Opp. to G-P Mot. (DE 221) at 14; Opp. to Wy. Mot (DE 218) at 14). Plaintiff contends that “because a governmental agency has yet to formally declare substance or product a danger does not mean a manufacturer should not know of such dangers from either its own testing or the medical, industrial and scientific literature.” (Id. at 16). This argument misses the mark for two reasons.
Second, with respect to independent “testing” by defendants, plaintiff does not explain how possibly defendants could have undertaken further medical or scientific testing of cancer and independent review of testing by others in a manner superior to or different from IARC or underlying studies referenced in IARC monographs. Case law cited by plaintiff regarding a duty to independently test a product is instructively distinguishable. For example, plaintiff cites Morgan v. Cavalier Acquisition Corp., 111 N.C. App. 520, 528 (1993), for the proposition that “a manufacturer must inform itself about what safety designs and methods are available in its industry and is under a duty to make reasonable tests and inspections to discover any latent hazards.” Morgan, however, does not support plaintiff’s argument that defendants should have undertaken individual medical or epidemiological studies, or reviews of studies, to determine if wood dust is
Similarly inapposite are cases cited by plaintiff for the proposition that a manufacturer must test for latent defects in a product. For instance, in Cockerham v. Ward, 44 N.C. App. 615, 623, (1980), the court stated that a “manufacturer has . . . [a] duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.” In Red Hill Hosiery Mill, Inc. v. MagneTek, Inc., 138 N.C. App. 70, 75 (2000), the court stated that “a manufacturer has the duty to use reasonable care throughout the manufacturing process, including making sure the product is free of any potentially dangerous defect in manufacturing or design,” and “[t]his duty of care may involve inspection or testing of the product.” Id. (emphasis added). In the context of this case, where plaintiff is not asserting a claim based upon negligent design or manufacturing, the cited duty to test for manufacturing or design defects is inapposite.
Moreover, wood is not like a device or product that is manufactured exclusively by an entity, or small group of entities, who are uniquely privy to its component hazards or properties, such as the vending machine in Morgan, 111 N.C. App. at 528, the rubber straps in Cockerham, 44 N.C. App. at 622-23, or fluorescent lighting fixture in Red Hill Hosiery Mill, 138 N.C. App. at 71. Rather, it is a raw material that is ubiquitous, which can be harvested and distributed by anybody. Thus, the statements in the law regarding a manufacturer’s “testing” of its own product are not reasonably transferrable to wood.
Plaintiff also cites testimony of Georgia-Pacific employee Hughes for the proposition that defendants knew that wood dust can cause nasal cancer during the exposure period, and that defendants had a duty to warn consumers of known dangers. The first proposition, however, is
MS. PACKER: The topic is when did Georgia-Pacific first learn of -- that exposure to wood dust can cause nasal cancer.
MR. FRIELING: Those are absolutely the questions I‘m going to ask him.
MS. PACKER: Yes. We first learned, as we have already disclosed to you, in at least 1987, which is prior to 1989 –
(Hughes Dep. 82-83). Plaintiff’s counsel then proceeds to ask Hughes whether Georgi-Pacific “would have been aware of” certain studies referenced in the following statement: “The association between occupational exposure to wood dust and various forms of cancer has been explored in many studies and in many countries.” (Id. at 84-85). As discussed previously, awarenesses of an association, or studies exploring the same, are not equivalent of knowledge that wood dust is a carcinogen during the exposure period. Plaintiff also cites the following question and answer:
Q. . . . my question is: If Georgia-Pacific knows of its product having a particular danger, it should tell its customers, right?
A. If it’s a proven known danger, then yes.
(Huges Dep. 96) (emphasis added). This testimony does not support plaintiff’s argument that defendants had a duty to warn plaintiff that wood dust causes cancer during the exposure period. First, plaintiff is not a customer of Georgia-Pacific, but rather a customer of stores that sell Georgia-Pacific products. Second, the question asked of Hughes presumes the very fact for which plaintiff lacks evidence, that the danger for which plaintiff seeks damage, sinonasal cancer, was a “proven known danger” of wood dust during the exposure period. (Id.).
In sum, the state of the art is insufficient to establish a duty to warn plaintiff that wood dust was a carcinogen during the exposure period.
In addition, and in the alternative, plaintiff has not established a duty to warn because there was no foreseeable risk of cancer from wood dust for a retail consumer of mostly softwood products, such as plaintiff’s father, during the exposure period. Under North Carolina law, a duty to warn arises only if the product creates a dangerous condition that the manufacturer knew posed a substantial risk of harm “to a reasonably foreseeable claimant” or “a reasonably foreseeable user or consumer.”
Here, plaintiff fails to bring forth any evidence that wood dust posed a reasonably foreseeable risk of harm to a retail consumer of mostly softwood products and pine wood scrap. Rather, a substantial risk of harm, if at all, was identified during the exposure period for persons working in the furniture and cabinet making industry, and for exposure to hardwood wood dust in that occupational setting. As noted previously, the 1981 IARC monograph stated: “There is sufficient evidence that nasal adenocarcinomas have been caused by employment in the furniture-making industry.” (DE 211-9 at 88) (italics in original; underlining added). The 1987 NIOSH report also noted an association to “occupations involving exposure to wood dust,” with the association “particularly strong among furniture industry workers.” (DE 215-24 at 33) (emphasis added). “Similarly, exposure to hardwoods has been implicated most often, but there are several reports implicating softwoods as well.” (Id.).
Defendants’ MSDSs during the exposure period adequately addressed the risks identified in these reports. For instance, the 1985 Georgia-Pacific MSDS states: “Avoid prolonged or repeated breathing of wood dust in air,” and “[e]xposure to wood dust has been statistically associated with nasal cancer in British furniture workers.” (DE 211-10 at 4 - 5). (Id.). Weyerhaeuser MSDSs, bearing “revised” dates April 1988 and July 1989, state: “Wood dust has
Stated differently, defendants already provided an “adequate warning” to address the substantial risk of harm that was foreseeable during the exposure period, and plaintiff has not shown a basis for providing further warning for unforeseeable risk of harm to consumers of mostly softwood products. Plaintiff has not brought forth evidence to create a genuine issue of material fact that additional warnings should have been provided during the exposure period.
Plaintiff suggests that defendants should have more widely distributed their MSDSs to consumers or, in the case of Weyerhaeuser, to employees who took home scrap wood. Plaintiff also suggests that defendant should have added a warning to their wood products, or used displays to show warnings in retail stores. However, given the occupational context of the risks identified during the exposure period, and the types of wood implicated, plaintiff has not demonstrated that any additional or different warning was required to address a reasonably foreseeable risk of harm to a consumer such as plaintiff’s father.10
In support of alternative handling of MSDSs, plaintiff suggests without evidentiary support that defendants should have provided MSDSs to consumers or employees who took wood home. (See, e.g., Opp. to Wy. Mot. (DE 218) at 17; Opp. to G-P Mot. (DE 212) at 17). While plaintiff’s expert, Jones, testified as to her opinion that the HazCom standard required MSDSs to “be distributed down the chain with the product, so [the MSDSs] have both an employee and a
In addition, the only support plaintiff offers for affixing labels on the wood products themselves or providing display notices, is by citing to a federal regulation that required, in 2018, labeling of wood products as being compliant with formaldehyde standards. (See Opp. to Wy. Mot. (DE 218) at 16 n. 9; Opp. to G-P Mot. (DE 212) at 17 n. 9). This citation is inapposite, however, because it is a current labeling requirement, not evidence of labeling duties during the exposure period. Furthermore, plaintiff offers no evidence equating formaldehyde risks and labeling factors with those of wood dust.11 For example, there is no evidence in the record regarding the propriety of treating all wood products equally in terms of wood dust labeling, particularly those softwood products that comprised the most substantial portion by far of wood acquired by plaintiff’s father. (See, e.g., T. Lightfoot Dep. 69, 71-76, 81; Pl’s Dep. 243). There is no basis in the record, for instance, for finding that wood suppliers such as defendants had a duty to place a wood dust warning label on every pine board sold or discarded as scrap, as opposed to more specialty furniture or cabinetry items or types of wood.
In sum, plaintiff has not established a genuine issue of fact that defendants owed a duty to warn plaintiff’s father, as a consumer of mostly softwood products and scrap products, of a risk of harm arising from such products. Therefore, for this additional reason, summary judgment must be granted to defendants due to plaintiff’s failure to establish an essential element of his claims.
Summary judgment also must be granted for defendants due to plaintiff’s failure to establish a genuine issue of fact on the element of proximate cause. As part of the causation element in a failure to warn case, a plaintiff must demonstrate that “the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought.”
In the context of a failure to warn, a plaintiff must establish both that plaintiff or responsible family member would have read a warning, and that they would have changed their behavior as a result of it. See Carlson v. Bos. Sci. Corp., 856 F.3d 320, 324 (4th Cir. 2017); Sparks v. Oxy-Health, LLC, 134 F. Supp. 3d 961, 994 (E.D.N.C. 2015); Holley v. Burroughs Wellcome Co., 74 N.C. App. 736, 742–43 (1985). For example, this court has held:
plaintiff can point to no testimony or other evidence that plaintiff or [his coworker] would have changed his behavior had he read or been given adequate warnings of the nail gun‘s propensities. In light of that absence, the court agrees with defendant, that the best crafted manual, warning, or instruction imaginable would have been a futile measure, because plaintiff or [his coworker] would have done nothing differently upon its receipt. Furthermore, the inference that an adequate warning would have resulted in a change of behavior is the product of speculation from the record; the court cannot permit a question to go to the jury upon mere speculation of proximate cause.
Edwards v. ATRO SpA, 891 F. Supp. 1074, 1078 (E.D.N.C. 1995).
Here, plaintiff fails to establish a genuine issue of fact on the element of proximate cause for two independent reasons. First, as a threshold matter, there is a lack of evidence regarding the
For example, plaintiff points to the 1981 IARC monograph that states: “There is sufficient evidence that nasal adenocarcinomas have been caused by employment in the furniture-making industry.” (DE 211-9 at 88). Plaintiff also points to the 1987 NIOSH report that states: “[T]he association between nasal adenocarcinoma and wood dust exposure is particularly strong among furniture industry workers, although other woodworkers have also been shown to be at risk.” (DE 215-24 at 33). However, there is no reliable evidence in the record permitting an inference that a warning bearing such qualified language on a sticker or display at a point of sale, or at a scrap wood discard pile, would have had any impact on a consumer of wood, where such consumer is not employed in the furniture-making industry. Plaintiff’s expert, Jones, does not provide such an opinion, even though suggestion is made that other such warnings should have been provided. (Cf., e.g., Jones Rep. (June 21, 2017) (DE 220-4) at 6; Jones Decl. (DE 220-7) ¶ 41 (noting failure of defendants to provide “MSDS or other health warnings” to a “customer”).
Second, there is insufficient evidence that plaintiff’s exposure to wood dust would have been reduced meaningfully if hypothetical warnings had been communicated to plaintiff’s father. Even today, after plaintiff’s father has been personally informed by plaintiff and plaintiff’s attorney that wood dust allegedly caused his son to be afflicted with sinonasal cancer, plaintiff’s
Other undisputed facts in the record also contribute to the implausibility of any inference that plaintiff or plaintiff’s father would have worn a dust mask during the exposure period. Plaintiff’s father never did “any research to try to figure out if there were safety precautions that [he] should take in the shop involving wood dust.” (Id. at 84). From the perspective of plaintiff’s father, plaintiff did not “ever complain about working in the shop, or say that he didn’t want” to do a particular task: “[H]e didn’t complain because he knew it wouldn’t do any good.” (Id. at 88). With reference to dust in the shop, plaintiff’s father said “basically, . . . look, a little dirt not going to hurt you.” (Id. at 126). With respect to safety precautions in the shop, plaintiff’s father testified as follows:
Q. Once you built the shop, did it ever have to undergo any inspections from, say, the fire department or --
A. No, it was just a home project thing.
Q. Did you take any measures yourself to add any particular ventilation system to the shop?
A. I just built the shop. I just built a basic shop.
Q. Did you add any ventilation system of any sort?
A. No.
Q. Do you have -- was it heated and air-conditioned?
A. No, it was just an old country shop.
(Id. at 48).
Plaintiff’s father also had a variety of power tools in the shop, including “a table saw, circular saw, band saw . . . sanders, grinders, drills, whatever it took to get the job done.” (Id. at 45). By the end of the exposure period, plaintiff was doing “just about” everything plaintiff’s father was doing in the shop. (Id. at 62). Despite the alleged high volume of production at the shop, plaintiff’s father agreed that “operations at [the] shop were nothing - - were set up nothing like the operations at the Weyerhaeuser mill,” in “no way like Weyerhaeuser.” (Id. at 139-140). Safety precautions implemented at the shop were “not to put [plaintiff’s] hand in the blade, and how to avoid getting cut, and stuff like that,” where plaintiff’s father stated: “I learned that by myself. Commonsense.” (Id. at 140; Pl’s Dep. 267-268). Plaintiff never wore hearing protection, safety goggles, or gloves while working in the shop. (Pl’s Opp. G-P Stmt. (DE 222) ¶ 20). Plaintiff points to no evidence of any safety precautions taken because of any warnings in manuals associated with the power tools in the shop or any other safety warnings during the exposure period. (See, e.g., Pl’s Dep. 267-268, 312-131, 397; T. Lightfoot Dep. 166-167; Boelhouwer Dep. 92).
Furthermore, an additional break in the causal chain, rendering any inference of causation conjectural, is the undisputed fact that plaintiff sometimes worked in the shop in the vicinity of power tools, chemicals, and wood dust, independently and unsupervised, repeatedly for multiple hours at a time. (See, e.g., Pl’s Dep. 231-232, 254, 336-337, 366). Indeed, plaintiff “typically . . . would work a couple hours” in the shop alone on a school day afternoon during his middle school years, which could include “cleaning” or “sand[ing] a project that was already put together” while his father was “at work.” (Pl’s Dep. 254). It is speculative whether plaintiff would have worn a dust mask or taken other precautions to protect himself during such work.
The statements in the declaration are insufficient to create a genuine issue of material fact for two reasons. First, they do not address the nature of the warning that could or should have been provided to plaintiff’s father during the exposure period, consistent with the state of the art at the time. His statement, “[i]f I had been informed that wood dust could cause cancer from Weyerhaeuser and Georgia Pacific’s wood products,” (id. ¶ 15), is conclusory and generalized, not tied to any evidence about the contents or nature of any warning communication method to which plaintiff’s father could have been exposed. Second, the conclusory statement in the declaration that he “would have worn a dusk mask and required” plaintiff to do the same, (id. ¶ 16), is contradicted by his more specific testimony regarding the lack of safety precautions in the shop during the exposure period.
“[I]t is the duty of the court to withdraw the case from the [factfinder] when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace, 681 F.2d at 241 (quotations omitted). In this instance, in light of all the aforementioned undisputed facts in
At bottom, there is insufficient evidence to create a triable issue of fact with respect to the issue of whether “the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought.”
CONCLUSION
Based on the foregoing, defendants’ motions for summary judgment (DE 209, 213), are GRANTED, and plaintiff’s claims are dismissed as a matter of law. The clerk is DIRECTED to close this case.
SO ORDERED, this the 21st day of February, 2020.
LOUISE W. FLANAGAN
United States District Judge