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Workers’ Compensation – Prostate Cancer – Causation – Judicial Notice – Camp Lejeune Water Contamination

Ebron v. American Red Cross (Lawyers Weekly No. 012-166-16, 18 pp.) (Wanda Bryant, J.) Appealed from the Industrial Commission. N.C. App. Unpub.

Holding: In support of his claim that he developed prostate cancer because of his exposure to contaminated water while he worked for defendant at Camp Lejeune in the 1960’s, plaintiff sought judicial notice of several documents – mostly containing information from facts sheets which do not discuss water contamination at Camp Lejeune specifically or else contain evidence from case studies, many of which are inconclusive. Since the purpose for which plaintiff attempted to use these documents was to establish the very issue in dispute – the cause of plaintiff’s prostate cancer – the documents did not contain indisputable adjudicative facts and so were not subject to judicial notice.

We affirm the Industrial Commission’s denial of benefits.

Plaintiff’s comparison of judicial notice to the doctrine of res ipsa loquitur is also misplaced. Res ipsa loquitur does not apply where more than one inference can be drawn from the evidence as to the cause of an injury. The evidence permitted the Commission to infer causation of plaintiff’s prostate cancer by something other than water contamination at Camp Lejeune.

Where no evidence established that plaintiff was poisoned by or diagnosed with poisoning by volatile hydrogenated carbons, benzol, or any other chemical listed in G.S. § 97-53(9) or (12), plaintiff did not prove an occupational disease claim under those subsections.

Plaintiff also failed to prove an occupational disease under the catch-all provision of G.S. § 97-53(13).

First, he failed to show that prostate cancer is characteristic of those employed by defendant at Camp Lejeune.

Second, he failed to prove that prostate cancer is not an ordinary disease of life or that employment with defendant placed him at an increased risk for development of prostate cancer.

Although plaintiff drank water from the faucet at Camp Lejeune, at meals on the base, and used the swimming pool, he could not provide the exact location of defendant’s offices on the base and had no evidence that contaminated water was ever pumped to defendant’s offices.

Finally, plaintiff failed to establish the requisite causal connection between plaintiff’s prostate cancer and his employment with defendant. Not only was no expert medical testimony regarding the causation of plaintiff’s prostate cancer offered at the hearing, but the medical record evidence is also devoid of any comments by treating medical providers regarding the relationship, if any, between plaintiff’s alleged exposure to contaminated water and his prostate cancer. In fact, plaintiff’s evaluation by the Veterans’ Administration tended to show a greater possibility that plaintiff’s prostate cancer was caused by exposure to Agent Orange during the year he spent working for defendant in Vietnam.


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