Lightfoot v. Georgia-Pacific Wood Prods., LLC

• Decision Date: 21 February 2020
• Docket Number: NO. 7:16-CV-244-FL,7:16-CV-244-FL
• Citation: 441 F.Supp.3d 159
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Christopher LIGHTFOOT, Plaintiff, v. GEORGIA-PACIFIC WOOD PRODUCTS, LLC; Georgia-Pacific LLC individually and as successor-in-interest to Georgia-Pacific Corporation; and Weyerhaeuser Company, Defendants.

441 F.Supp.3d 159

Christopher LIGHTFOOT, Plaintiff,

v.GEORGIA-PACIFIC WOOD PRODUCTS, LLC; Georgia-Pacific LLC individually and as successor-in-interest to Georgia-Pacific Corporation; and Weyerhaeuser Company, Defendants.¹

NO. 7:16-CV-244-FL

United States District Court, E.D. North Carolina, Southern Division.

Signed February 21, 2020

Allen M. Stewart, Lee Lesher, Scott Robert Frieling, Pro Hac Vice, Allen Stewart, PC, Dallas, TX, Gary K. Shipman, James T. Moore, Shipman & Associates, LLP, Wilmington, NC, Robert Cape Buck, The Buck Law Firm, Atlanta, GA, for Plaintiff.

Anita Wallace Thomas, Richard Kennon Hines, V, Nelson Mullins Riley & Scarborough, LLP, Mary Kathleen McLemore, Georgia-Pacific LLC, Ivan Andrew Gustafson, Evert Weathersby Houff Atlanta, GA, Christopher W. Jackson, Ellis & Winters LLP, Greensboro, NC, Leslie C. Packer, Preetha Suresh Rini, Ellis & Winters, LLP, Thomas M. Buckley, Goldberg Segalla LLP, Raleigh, NC, J. Nicholas Ellis, Poyner & Spruill LLP, Rocky Mount, NC, Joshua James Metcalf, Ruth F. Maron, Alison O. McMinn, Amorya M. Orr, Tanya D Ellis, Thomas B. York, Forman, Watkins, & Krutz LLP, Jackson, MS, Lucille Will Andres, Evert Weathersby Houff, Atlanta, GA, for Defendants.

ORDER

LOUISE W. FLANAGAN, United States District Judge

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.

Defendants Georgia-Pacific Wood Products, LLC and Georgia-Pacific LLC (hereinafter "defendant Georgia-Pacific")² removed the case on February 15, 2016, on the basis of diversity jurisdiction, to the United States District Court for the Northern District of Georgia. That court sua sponte transferred venue to this court on July 1, 2016.

Following an initial period of discovery, defendants filed on December 1, 2017, motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 Lightfoot, Sr. ("Thomas Lightfoot, Sr." or "T. Lightfoot"); 2) depositions of plaintiff's experts Kristan J. Aronson ("Aronson"), Margaret Brandwein-Weber ("Brandwein-Weber"), Jeremiah Boles ("Boles"), and Jones, as well as expert reports of Aronson and Brandwein-Weber; 3) depositions of defendants' experts, Eric J. Boelhouwer ("Boelhouwer") and Jennifer Sahmel ("Sahmel"), and report of Boelhouwer; 4) plaintiff's responses to interrogatories and correspondence regarding the same; 5) World Health Organization International Agency for Research on Cancer ("IARC") monographs dated 1981 and 1995; 6) Material Safety Data Sheets ("MSDS") for "wood dust" generated by defendant Georgia-Pacific; 7) printout of a United States Department of Labor Occupational Safety & Health Administration ("OSHA") webpage and an "ACGIH" report regarding wood dust; and 8) printouts of OSHA correspondence and agency documents.

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 to those categories of exhibits already relied upon by defendants: 1) additional report on wood dust and cancer by NTP; 2) copies of rules published in the Federal Register, by OSHA, titled Hazard Communication ("HazComm"); 3) declaration of Thomas Lightfoot, Sr.; 4) Weyerhaeuser interoffice communications; 5) a NIOSH report (June 1987); 6) copies of articles published in medical and scientific journals; 7) depositions of plaintiff's brother, Thomas Gene Lightfoot, and mother, Faye Welch Lightfoot; Georgia-Pacific employee, David Hughes ("Hughes"); 8) expert reports and declarations by Boles and Aronson; and 9) additional internal Weyerhaeuser documents related to wood dust.

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

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