Hudjohn v. S&G MACHINERY CO.

• Decision Date: 22 June 2005
• Docket Number: No. 01-02-40656; A121002.,01-02-40656; A121002.
• Citation: 114 P.3d 1141,200 Or. App. 340
• Court: Oregon Court of Appeals
• Parties: Alexander HUDJOHN, Appellant, v. S&G MACHINERY CO., an Oregon corporation, and Deere & Company, a foreign corporation, Respondents.

114 P.3d 1141

200 Or. App. 340

Alexander HUDJOHN, Appellant, v. S&G MACHINERY CO., an Oregon corporation, and Deere & Company, a foreign corporation, Respondents.

No. 01-02-40656; A121002.

Court of Appeals of Oregon.

Argued and Submitted May 26, 2005.

Decided June 22, 2005.

Dwain M. Clifford, Portland, argued the cause for appellant. With him on the briefs were James T. McDermott and Ball Janik LLP.

Bruce H. Orr, Portland, argued the cause for respondent S&G Machinery Co. With him on the briefs were James E. Bartels and Meyer & Wyse LLP.

R. Daniel Lindahl, Portland, argued the cause for respondent Deere & Company. With him on the brief were Stephen F. English, Peter J. Viteznick, and Bullivant Houser Bailey PC.

Before HASELTON, Presiding Judge, and ORTEGA, Judge, and DEITS, Judge pro tempore.

HASELTON, P.J.

Plaintiff appeals from a judgment for defendants in this personal injury action, raising several assignments of error. Defendants counter with a battery of cross-assignments of error, including a contention that the trial court erred in denying defendants' motion for a directed verdict based on the legal insufficiency of plaintiff's proof of medical causation. As explained below, we agree with defendants that the trial court so erred. See Chouinard v. Health Ventures, 179 Or.App. 507, 512, 39 P.3d 951 (2002)

. Accordingly, we affirm.

In reviewing the denial of a motion for directed verdict, we view the evidence, including reasonable attendant inferences, in the right most favorable to the nonmoving party, here, plaintiff. Mauri v. Smith, 324 Or. 476, 479, 929 P.2d 307 (1996); Joshi v. Providence Health System, 198 Or.App. 535, 536, 108 P.3d 1195 (2005). To place the directed verdict motion in procedural context, we recount the background of this litigation and then, consistently with the standard of review, describe plaintiff's evidence pertaining to causation of injury.

In the summer of 2000, plaintiff was working for defendant S&G Machinery Co. (S&G) in La Grande. S&G is an authorized dealer of defendant Deere & Company (Deere). On or about July 26, 2000, plaintiff's supervisor told plaintiff to puncture and drain approximately 50 spent aerosol cans that had contained Deere products, including paints, cleaning agents, and lubricants. The supervisor directed plaintiff to puncture the cans, using a so-called "apparatus," draining the liquid into a bucket.

At least some of the products in the aerosol cans contained hazardous chemicals. For example, the label on Deere paint cans bore the following warning:

"VAPOR HARMFUL. MAY AFFECT THE BRAIN OR NERVOUS SYSTEM CAUSING DIZZINESS, HEADACHE OR NAUSEA. CAUSES EYE, SKIN, NOSE AND THROAT IRRITATION. To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying. If you experience eye watering, headaches or dizziness, increase fresh air or wear respiratory protection * * * or leave the area. Avoid contact with skin and eyes. Do not take internally.

"NOTICE: Reports have associated repeated and prolonged occupational overexposure to solvents with permanent brain and nervous system damage. Intentional misuse by deliberately concentrating and inhaling the contents may be harmful or fatal.

"KEEP OUT OF REACH OF CHILDREN. USE WITH ADEQUATE VENTILATION.

"FIRST AID: If you experience difficulty in breathing, leave the area to obtain fresh air. If continued difficulty is experienced, get medical assistance immediately. In case of eye contact, flush immediately with plenty of water for at least 15 minutes and get medical attention; for skin, wash thoroughly with soap and water. If swallowed, get medical attention immediately.

"WARNING! This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm."

The label also included a warning: "Do not puncture or incinerate (burn) container."¹ Nevertheless, plaintiff's supervisor gave plaintiff no warnings and did not provide plaintiff with a respirator or protective clothing.

Plaintiff punctured and drained the cans for between 30 and 45 minutes, working roughly five feet away from a large, partially opened shop door. Immediately afterward, plaintiff told a coworker that he felt "light-headed." In the days and weeks that followed—and, for the most part, continuing at the time of trial—plaintiff experienced extreme fatigue, nausea, weight loss, trembling in his extremities, forgetfulness, and mental "confusion." When plaintiff's parents saw him for the first time after July 26, approximately a week later, they were extremely concerned about his appearance and behavior. According to plaintiff's father, plaintiff "was not the same person I knew."

Plaintiff subsequently filed a workers' compensation claim against S&G for a "neurological injury to his brain" from alleged workplace exposure to toxic vapors on or about July 26, 2000. S&G denied that claim in November 2000. On January 4, 2002, an evidentiary hearing on that claim was held before an administrative law judge (ALJ). Plaintiff, as claimant, and S&G offered medical evidence on the questions of whether plaintiff had suffered a brain or neurological injury and whether the July 2000 episode, as described by plaintiff, could have caused such an injury. On April 22, 2002, the ALJ issued an opinion and order, determining that plaintiff had failed to prove the compensability of his claim:

"It is disputed whether there are objective findings to support the medical evidence of an injury. Dr. Morton presumed that there was an exposure and an injury from the fact that claimant reported that claimant's symptoms were improving and claimant's performance on some neuropsychological tests seemed to improve over time. Other examiners doubt the validity of claimant's reports based on claimant's performance on the neuropsychological tests. Dr. Wong-Ngan and Dr. Weller suspect there may be some deficits but they cannot quantify them. The only constant in the reports is claimant's report of his symptoms which remain unverified by medical examinations. The record is very weak to establish that claimant has or had an objectively verified injury to his brain or neurological functions from any source or cause let alone from the alleged exposure to chemicals in late July 2000. Considering the record as a whole, including the testimony, I am not persuaded that claimant has established by medical evidence supported by objective findings that he has a brain or neurological injury or disease. However, since the standard for establishing objective evidence of an injury is very low, I have considered the evidence of causation as if the record did establish a neurological injury.

"* * * * *

"* * * Claimant's evidence does not prove more than a possibility that he was exposed to something at work and that that exposure may have contributed something to the symptoms he reports but which are not verified by objective medical evidence. Considering the insufficiency of the evidence to establish that whatever exposure claimant may have suffered at work is even a material contributing cause of his reported symptoms, claimant is not entitled to an award of compensation on this record."

(Emphasis added.) Plaintiff did not appeal the ALJ's order to the Workers' Compensation Board.

Meanwhile, in October 2000, plaintiff had filed this civil action, alleging, inter alia, claims for "deliberate" personal injury against S&G and for negligence against Deere. Extensive motions practice ensued, much of which pertained to S&G's invocation of immunity from civil liability by virtue of the "workers' compensation exclusivity" statute, ORS 656.018(1)(a).² Ultimately, plaintiff filed the operative first amended complaint, alleging claims for negligence against both S&G and Deere. In that complaint, plaintiff sought to recover damages for the following alleged injuries:

"In the days immediately following his exposure to multiple hazardous and toxic chemicals and substances, and as a direct result of that exposure, [plaintiff] experienced numerous detrimental physical symptoms, including, but not limited to: severe trembling in his hands and body; lethargy; nausea; loss of short-term and long-term memory; excessive thirst; difficulty speaking and reasoning; and sleeplessness. [Plaintiff] also lacked the physical strength that he used to have. Those symptoms continue to this day.

"* * * [plaintiff] has incurred permanent and serious physical injuries, including, but not limited to, a major brain injury or trauma. As a result of that injury, [plaintiff] suffers from, and will continue to suffer from, indefinitely, the symptoms discussed above, including, but not limited to: short-term and long-term loss of memory and physical shaking. In addition, [plaintiff] suffers from, and will continue to suffer indefinitely from, a loss of cognitive reasoning ability."

In December 2002, S&G moved for summary judgment on three alternative grounds. First, the exception to workers' compensation exclusivity embodied in the "Smothers-fix" statute, ORS 656.019(1)(a), did not apply to plaintiff's negligence claims against S&G because the ALJ had rejected plaintiff's workers' compensation claim on grounds other than plaintiff's "fail[ure] to establish that a work-related incident was the major contributing cause of the worker's injury."³ Specifically, the ALJ had determined that plaintiff had failed to prove that (a) he had suffered any neurological or brain injury; and (b) any workplace exposure was a material cause, much less a major cause, of any injury. Second, ORS 656.019(1)(a) was further inapposite because the ALJ's order was not "final" within the meaning of that statute—that is, the statute applied only in circumstances in which the Workers' Compensation Board had determined the noncompensability of a claim. Third, under principles of either issue preclusion or claim preclusion, the ALJ's...