Lightfoot v. Georgia-Pacific Wood Prods., LLC

5 F.4th 484

Christopher LIGHTFOOT, Plaintiff - Appellant,

v. GEORGIA-PACIFIC WOOD PRODUCTS, LLC; Georgia-Pacific LLC, individually and as successor-in-interest to Georgia-Pacific Corporation; Weyerhaeuser Company, Defendants - Appellees,andWeyerhaeuser NR Company; Lowe's Home Centers, LLC (NC); John Doe #1, Defendants.

No. 20-1334

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: July 14, 2021

ARGUED: Sean Reed Cox, LAW OFFICERS OF SEAN R. COX, Dallas, Texas, for Appellant. Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Lee B. Lesher, ALLEN STEWART, P.C., Dallas, Texas, for Appellant. Leslie C. Packer, Christopher W. Jackson, Preetha Suresh Rini, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellees Georgia-Pacific Wood Products LLC and Georgia-Pacific LLC. Joshua J. Metcalf, Alison O. McMinn, Spencer M. Ritchie, FORMAN WATKINS & KRUTZ LLP, Jackson, Mississippi, for Appellee Weyerhaeuser Company.

Before NIEMEYER, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wynn and Judge Richardson joined. Judge Wynn wrote a concurring opinion.

NIEMEYER, Circuit Judge:

Christopher Lightfoot, at age 39, was diagnosed with nasal cancer, and he maintains that his cancer was caused by his exposure to wood dust while working in his father's backyard woodshop during the period from when he was 6 to when he was 18 — an "exposure period" extending from 1981 to 1992. He commenced this action against Georgia-Pacific Wood Products, LLC; Georgia-Pacific LLC; and Weyerhaeuser Company, alleging that they produced the lumber that Lightfoot's father used in his woodshop and are liable to him for damages because they failed to warn his father that wood dust causes cancer.

The district court granted the defendants summary judgment, concluding, among other things, that during the exposure period, the defendants did not have a duty to warn Lightfoot's father that wood dust causes cancer because that fact was not known at the time as part of the "state of the art," i.e., the level of knowledge reached. Lightfoot contends, however, that the district court erroneously concluded that the state of the art was reflected solely in the recognition by the Occupational Safety and Health Administration (OSHA) in 1995 that wood dust causes cancer, improperly creating an "OSHA litmus test." Lightfoot argues that such a conclusion was too narrow and that an appropriately broad understanding of the state of the art would include knowledge that triggered a duty on the defendants to warn their customers of the risk of cancer during the exposure period. With such a warning, he continues, his father could then have protected him by requiring him to wear a dust mask.

We conclude, however, that the district court properly concluded from the record that the state of the art did not indicate that wood dust causes cancer until 1995, a few years after the exposure period at issue ended, and therefore that the defendants had no duty to warn Lightfoot's father of any risk of cancer during that period. Accordingly, we affirm.

I

Christopher Lightfoot's father was a hobbyist woodworker who built a modest woodshop in the backyard of his home in Winfall, North Carolina. He used his woodshop to build picnic tables, cabinets, chair swings, fence slats, vegetable bins, and the like. Roughly 60% of the wood that he used, he retrieved from a "reject pile" at the Weyerhaeuser lumber mill in Plymouth, North Carolina, where he worked as a machine-maintenance mechanic. This wood was mainly pine, a softwood. The rest of the wood that he used, he purchased from Lowe's Home Improvement and Builder's Discount Supply, which were in turn supplied by Georgia-Pacific and Weyerhaeuser. That wood was also mostly pine. On rare occasions, however, Lightfoot's father purchased hardwood lumber as needed for a specific project.

In 1981, when Lightfoot was 6 years old, he began helping his father in the woodshop by sweeping and shoveling wood dust, retrieving tools for his father, and generally moving items about the shop as needed. By the time he was 10 years old, he was actively involved in woodworking, using power drills, saws, and sanders. In 1992, when he was 18, he left home for college and stopped working in the woodshop. Thus, his exposure to wood dust occurred from 1981 to 1992.

During his early years in the woodshop, Lightfoot spent about 5 hours per week in the shop, and from the time he began to engage in woodworking until he left for college, he spent roughly 20 to 25 hours per week in the shop. Neither Lightfoot nor his father ever wore a dust mask during the exposure period.

Over 20 years later, in April 2014, Lightfoot was diagnosed with intestinal-type adenocarcinoma, a form of sinonasal cancer. He has offered evidence in the form of expert-witness testimony that his childhood exposure to wood dust caused this cancer.

Lightfoot commenced this action in 2016, alleging that Georgia-Pacific and Weyerhaeuser had a duty to warn his father that wood dust is carcinogenic but failed to do so and therefore that they were liable to him under theories of negligence and products liability. Following discovery, however, the district court granted the defendants’ motion for summary judgment, relying on two independent grounds.

First , the district court held that the defendants did not have a duty to warn Lightfoot's father about the carcinogenicity of wood dust because the "state of the art" during the 1981 to 1992 exposure period did not indicate that wood dust causes nasal cancer. As the court explained, "The state of the art regarding carcinogenicity, as reflected in OSHA [Hazard Communication (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 [International Agency for Research on Cancer (IARC)] in 1995." Lightfoot v. Georgia-Pacific Wood Prods., LLC , 441 F. Supp. 3d 159, 171 (E.D.N.C. 2020). The court observed further that while literature published during the exposure period did connect cancer with wood dust, that connection existed only as to "persons working in the furniture and cabinet making industry" who were exposed to hardwood dust. Id. at 176. Accordingly, the court concluded that Lightfoot's father, as a retail consumer of mostly softwood products, was not owed any warning of the later-discovered danger.

Second , the court also held that Lightfoot had failed to create a genuine issue of material fact as to proximate causation. The court explained that, "as a threshold matter, there is a lack of evidence regarding the types of warnings that could have been used during the exposure period, their content, their manner of presentation, and their location." Lightfoot , 441 F. Supp. 3d at 178. The court noted further that "[t]here [was] insufficient evidence that plaintiff's exposure to wood dust would have been reduced meaningfully if hypothetical warnings had been communicated to plaintiff's father." Id. Notably, it observed that "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 father wears a dust mask [only] ‘sometimes.’ " Id.

From the district court's summary judgment dated February 21, 2020, in favor of the defendants, Lightfoot filed this appeal.

II

For his principal argument on appeal, Lightfoot contends that the district court erred in concluding that the defendants did not have a duty to warn his father about the carcinogenicity of wood dust. Specifically, he argues that the court "ignored or otherwise disregarded" state-of-the-art evidence that "show[ed] that wood dust was a known carcinogen before and during" the exposure period and that the defendants therefore "knew or should have known of the carcinogenic danger associated with their products," triggering a duty to warn their customers, including his father, of that danger. In his complaint, Lightfoot alleged that the defendants were liable to him under theories of negligence and products liability. As to negligence, he alleged that "each defendant knew, or should have known, that Plaintiff ... would be in danger of developing sinonasal cancer ... [and] was negligent in ... failing to adequately warn Plaintiff [of the danger.]" Similarly, in alleging products liability, Lightfoot alleged that "[e]ach of the defendants’ products was defective, inter alia , in their ... lack of proper or sufficient warnings" and that "[e]ach defendant either knew, or in the exercise of reasonable care should have known, that their products would cause injuries in the form of sinus cancer."

Claims for failure to warn under North Carolina law, whether rooted in negligence or products liability, require the plaintiff to establish that the defendant owed the plaintiff "a duty to warn of danger, the nonperformance of which will, when it is the proximate cause of injury, give rise to liability." Stegall v. Catawba Oil Co. of N.C. , 260 N.C. 459, 133 S.E.2d 138, 142 (1963) (addressing negligence claims); Crews v. W.A. Brown & Son, Inc. , 106 N.C.App. 324, 416 S.E.2d 924, 928 (1992) ("As with other negligence actions, the essential elements of a products liability action based upon negligence are: (1) duty, (2) breach, (3) causation, and (4) damages"); N.C. Gen. Stat. § 99B-5(a) (providing that a manufacturer or seller of a product is not liable "in any product liability action for a claim based upon inadequate warning ... unless the claimant proves [among other elements] that ... the product, without an adequate warning ..., 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"). A duty to warn is...