Setzer v. Boise Cascade Corp.

473 S.E.2d 431, 123 N.C. App. 441, 1996 N.C. App. LEXIS 711
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 1996
DocketCOA94-1253
StatusPublished
Cited by8 cases

This text of 473 S.E.2d 431 (Setzer v. Boise Cascade Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Setzer v. Boise Cascade Corp., 473 S.E.2d 431, 123 N.C. App. 441, 1996 N.C. App. LEXIS 711 (N.C. Ct. App. 1996).

Opinions

McGEE, Judge.

In 1973 decedent, Jack M. Setzer, began working for defendant, Boise Cascade Corporation. A year or two later decedent became the “starch man” at the Boise Cascade cardboard container facility in Newton, North Carolina. Decedent held that position until 1983 when he became a general maintenance man for the remainder of his employment, although he continued to occasionally substitute as the starch maker. Both positions required decedent to handle a variety of chemicals.

As the “starch man,” decedent made three to four batches of starch per day in two 1500 gallon holding tanks with a formula which included cornstarch, caustic soda (sodium hydroxide), borax, resin and large quantities of water. In addition to mixing the starch batches, decedent had to waterproof and preserve the mixture by adding various resins and formaldehyde to the batches on a weekly basis. Material safety data sheets provided by defendant indicated that two of these resins contained formaldehyde.

[443]*443While working with the various chemicals, decedent was supposed to wear protective gear which occasionally decedent failed to wear. He did not wear a mask or a respirator when carrying the buckets of formaldehyde because he had been told that he only needed protective gear when he mixed the caustic soda. The starch mixture, as well as the formaldehyde and resins he handled, frequently splashed onto decedent, burning holes in his clothes and causing burns and blisters on his body.

In April 1975, soon after decedent became the principal “starch man,” he began experiencing severe abdominal pain, vomiting, dizzy spells and nausea. Decedent’s physician discovered a gangrenous gall bladder and removed it on 17 April 1975. Over the next decade, decedent was treated by Drs. Wayne Boyles and D. W. Michael for a variety of symptoms including: bloody stools, red bumps on his head, aching pains in his joints, difficulty breathing, pain and numbness in his arms and chest, epigastric pain, nausea and dizziness.

In the fall of 1986, decedent became ill for four to six weeks and lost over forty pounds during this period of time. Decedent’s regular physicians referred him to Dr. Leland Cook, who treated decedent for severe pancreatitis, and eventually released him to work in April 1987. Decedent continued to experience abdominal pain, nausea, and vomiting after returning to work and he was finally hospitalized in June 1987. Test results indicated that decedent had carcinoma of the pancreas with metastases to the lung. Decedent died on 18 January 1988.

Decedent’s wife filed a claim with the North Carolina Industrial Commission which was heard in February 1993. Following the hearing, the depositions of Frederick D. Williams, Ed.D., and William R. Berry, M.D., were taken and submitted into the record. Plaintiff’s witness, Dr. Williams, who had met decedent a number of years prior to decedent’s death, was qualified without objection from defendants as an expert in the field of environmental health. Dr. Williams testified he researched decedent’s pancreatic cancer to see whether it was linked to any of the chemicals with which decedent worked while he was the “starch man.” Among Dr. Williams’ findings was that decedent had been exposed to formaldehyde at levels which were much higher than recommended federal government guidelines. Additionally, Dr. Williams testified that pancreatic cancer has been linked to industrial chemical exposure and that studies have shown that employees in the paper industry show a significant level of pan[444]*444creatic cancer which is higher than the national average. He stated that in his opinion, decedent’s cancer was probably caused by his exposure to these industrial chemicals.

Dr. Berry, a physician specializing in oncology and hematology, testified for the defense. He reviewed decedent’s medical records, as well as Dr. Williams’ deposition, but concluded “it would still be difficult, if not impossible, to say what caused this particular man’s pancreatic [cancer].” Contrary to Dr. Williams’ opinion, Dr. Berry stated that there was no proven industrial exposure which was known to cause pancreatic cancer and little to no evidence to support the conclusion that formaldehyde causes pancreatic cancer.

A deputy commissioner filed an opinion and award denying plaintiff’s claim on 1 March 1994. Among other things, the deputy commissioner found decedent died of “metastatic carcinoma of the pancreas with lung and abdomen involvement. . . . [but] it was not related to or caused by his employment or exposure to formaldehyde, caustic soda or other chemicals at defendant-employer’s facility.”

In a decision filed 1 August 1994, the Full Commission reversed the deputy commissioner and awarded plaintiff workers’ compensation benefits, including medical expenses, under N.C. Gen. Stat. §§ 97-25, 97-38, 97-39. The Full Commission concluded “[decedent’s] exposure to formaldehyde and other various chemicals which caused his resulting pancreatic cancer, constitutes an occupational disease characteristic and peculiar to his employment to which the general public is not equally exposed.” From this opinion and award, both plaintiff and defendants appeal.

I. Defendants’Appeal

All three of defendants’ issues involve the question of whether plaintiff’s witness, Dr. Fred Williams, was a competent expert who presented reliable and relevant evidence upon which the Industrial Commission could support its findings of fact and conclusions of law.

N.C. Gen. Stat. § 97-86 states Industrial Commission opinions and awards may be appealed to this Court “for errors of law under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. The procedure for the appeal shall be as provided by the rules of appellate procedure.” G.S. 97-86. The North Carolina Rules of Appellate Procedure are mandatory and failure to follow them subjects an appeal to dismissal. [445]*445Marsico v. Adams, 47 N.C. App. 196, 197, 266 S.E.2d 696, 698 (1980). Because defendants failed to comply with these Rules, we do not reach the substantive merits of defendants’ arguments on appeal. Specifically, the competency of Dr. Williams and his testimony is not properly preserved for this Court’s consideration under Rule 10. N.C.R. App. P. 10(b)(1). Additionally, none of the questions presented in defendants’ brief identifies the related assignments of error as required under Rule 28. N.C.R. App. P. 28(b)(5).

A. Rule 10

Rule 10(b) requires that certain action be taken to preserve the right to challenge the trial court’s decision below. N.C.R. App. P. 10(b)(1). Generally, a party’s failure to enter a timely and specific objection constitutes a waiver of his right to challenge the alleged error on appeal. Power Co. v. Winebarger, 300 N.C. 57, 68, 265 S.E.2d 227, 233-34 (1980). Even where a general objection is sufficient, its benefit may be lost when substantially the same evidence is later admitted without renewing the earlier objection. Id. This rule applies to objections to the competency of testimony. Meroney v. Avery, 64 N.C. 312, 313 (1870) (stating that objections to the competency of testimony must be timely made or they are waived).

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Setzer v. Boise Cascade Corp.
473 S.E.2d 431 (Court of Appeals of North Carolina, 1996)

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Bluebook (online)
473 S.E.2d 431, 123 N.C. App. 441, 1996 N.C. App. LEXIS 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/setzer-v-boise-cascade-corp-ncctapp-1996.