Products Liability Law Daily Cancer victim cannot recover on failure to warn theory in wood dust exposure case
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Tuesday, February 25, 2020

Cancer victim cannot recover on failure to warn theory in wood dust exposure case

By Harold S. Berman, J.D.

A litigant who alleged that his cancer was caused by wood dust exposure while working in his father’s woodworking shop as a child could not show that wood dust was a known carcinogen at the time such that there was any duty to warn.

A son who worked in his father’s woodworking shop as a child where he was exposed to wood dust, and who later was diagnosed with cancer allegedly caused by the wood dust exposure, could not show that the mills which produced the wood had any duty to warn of any danger of developing cancer from wood dust, a federal district court in North Carolina ruled. The court granted summary judgment for the mills, finding that the state-of-the-art knowledge during the son’s exposure period did not show any definitive link between wood dust and cancer for a retail consumer. Nor could the son show that his father would have taken any precautions or refrained from using the wood had he received generalized warnings at the time (Lightfoot v. Georgia-Pacific Wood Products, LLC, February 21, 2010, Flanagan, L.).

A father in North Carolina maintained a woodworking shop on his property where he produced numerous picnic tables, vegetable bins, trash cans, and furniture each year to sell locally. He also completed several home projects in the woodworking shop, which lacked mechanical ventilation. The father obtained the wood he used for his projects from a local mill where he worked, as well as from home improvement stores supplied both by the mill and Georgia-Pacific Wood Products, LLC. Most of the woods were softwoods such as pine.

The father had a son who assisted him with the woodworking projects from the time he was six until he was 18. During these years, the son helped clean the shop, which involved sweeping and shoveling wood dust. He also used various power tools. Between the ages of 10 and 18, the son averaged 20-25 hours per week working in the shop.

When the son was 39, he was diagnosed with sinonasal cancer. The son sued Georgia-Pacific and the mill, asserting negligence and products liability failure to warn claims for his injuries, allegedly caused by exposure to wood dust from products Georgia-Pacific and the mill manufactured and sold. Georgia-Pacific and the mill moved for summary judgment.

No duty to warn. The court granted summary judgment for Georgia-Pacific and the mill, first finding that they had no duty under North Carolina law to warn of any danger of developing sinonasal cancer from wood dust during the time that the son was exposed to it.

The "state of the art" information available during the exposure period was insufficient to establish a duty to warn the father or son that wood dust was a carcinogen. OSHA HazCom regulations, as well as definitive scientific sources in the record, showed that wood dust was not known to be a carcinogen until designated as such in 1995 by the World Health Organization International Agency for Research on Cancer (IARC). Later that same year, in light of the IARC’s designation, OSHA for the first time required identification of wood dust from certain types of woods as a carcinogen. However, by 1995, the son was in college and no longer worked in the woodworking shop.

Nor did the son produce any other evidence of knowledge during his exposure period that wood dust was then known to be carcinogenic. Consequently, Georgia-Pacific and the mill could not have had a duty to warn the son that wood dust was a carcinogen. Although the son produced some evidence of known general risks of exposure to wood products during his exposure period, as well as various research claims concerning risk of exposure to wood dust, he did not produce any definitive evidence during the exposure period of the specific risk of cancer for which he sought damages.

Nor could the son show that wood dust from softwood products posed any foreseeable risk of cancer to a retail consumer during the exposure period, such that it would have created a duty to warn. At best, there arguably was a showing, for which warning was provided, of substantial risk of harm during the exposure period to workers in the furniture and cabinet making industry. The son failed to show that any additional warning would have been required for retail consumers.

No proximate cause. The court next found that there was insufficient evidence to create an issue of fact regarding whether any alleged failure to warn proximately caused the cancer for which the son sought damages. The son did not bring sufficient evidence to show what type or presentation of warning could have been used, or whether the father would have consequently changed his use of the wood. Because the state of the art during the exposure period did not definitively show that wood dust was a carcinogen, the son could not show that a different and qualified warning would have impacted the father’s behavior.

Additionally, the son could not show that his exposure to wood dust would have been reduced had his father received hypothetical warnings. Even after the father learned that his son’s cancer was allegedly caused by the wood dust, he continued to work in the woodworking shop, only sometimes wearing a dust mask. Consequently, it was not reasonable to assume that he would have worn a dust mask, or required his son to wear one, during the exposure period had he then received a generalized warning that was largely inapplicable to a retail consumer.

The case is No. 7:16-CV-244-FL.

Attorneys: Allen M. Stewart (Allen Stewart, PC) for Christopher Lightfoot. Anita Wallace Thomas (Nelson Mullins Riley & Scarborough, LLP) for Georgia-Pacific Wood Products, LLC.

Companies: Georgia-Pacific Wood Products, LLC

MainStory: TopStory WarningsNews CausationNews DefensesLiabilityNews BuildingConstructionNews NorthCarolinaNews

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