Worker fails to prove toxic vapors cause symptoms

Alexander Hudjohn was working in La Grande, Ore. for S&G Machinery Co., an authorized dealer of Deere & Company. On July 26, 2000, Hudjohn's supervisor told him to puncture and drain about 50 spent aerosol cans containing Deere products, including paints, cleaning agents and lubricants. Some of these products contained hazardous chemicals. The cans had labels recommending use with adequate ventilation and warned that the vapors could affect the brain or nervous system, and cause dizziness, headache, and nausea, as well as irritation of the eye, skin, nose and throat. They also stated: "Reports have associated repeated and prolonged exposure to solvents with permanent brain and nervous system damage."

Hudjohn's supervisor did not warn him and did not provide a respirator or protective clothing. Hudjohn punctured and drained cans for 30 to 45 minutes, working about five feet from a large, partially opened shop door. Immediately afterward, he told a coworker he felt lightheaded. Hudjohn subsequently developed continuing fatigue, nausea, weight loss, trembling in his arms and legs, forgetfulness and mental confusion.

Hudjohn filed a workers' compensation claim againstS&G for a "neurological injury to his brain" caused by alleged workplace exposure to toxic vapors. S&Gdenied liability. At a hearing at which both sides presented expert witnesses, the administrative-law judge ruled that Hudjohn had not established that his symptoms were caused by his exposure to toxic fumes at work, and that he was not entitled to workers' comp.

Meanwhile, Hudjohn filed a lawsuit against both S&G and Deere, charging the companies with negligence. When the case went to trial in January 2003, a board-certified neuropsychologist retained by Hudjohn testified that he exhibited neuropsychological abnormalities, but that, given Hudjohn's short exposure to the vapors, he would expect any impairment to be reasonably mild and he would not expect it to progress.

After the close of Hudjohn's evidence, the trial judge directed a verdict for Deere, based on the lack of evidence of negligence by the company. The trial against S&G continued, with the company producing as a witness a board-certified occupational medicine and medical toxicology physician. This doctor testified that Hudjohn's symptoms were not caused by exposure to the vapors in the cans he was directed to drain. After the trial, the jury returned a verdict for S&G. Hudjohn appealed to the Oregon Court of Appeals, but lost. The court held that he failed to prove that his exposure to toxic vapors caused his alleged injuries.