Benzene Litigation
December, 2006
Introduction
Litigation involving personal injuries allegedly caused by exposure to the chemical benzene is on the rise. Benzene is a clear, colorless liquid derived during the processing of crude oil. The federal government has classified it as a carcinogen. Plaintiffs allege occupational exposure from employment in the oil, shipping, automobile repair, shoe manufacturing, painting, farming, and other industries. Human exposure occurs through dermal contact and inhalation. Exposure also occurs from tobacco smoke, ambient air, strawberries, charcoal grilling, automobile exhaust, glues, and furniture wax.
Some pundits say that “Benzene” is the new “Asbestos.” Juries have rendered verdicts in favor of injured plaintiffs in benzene cases filed in New Jersey, Pennsylvania, Texas, and Florida. Benzene actions are on file in Illinois and West Virginia. Class action lawsuits have been filed in Massachusetts and Florida against a family owned soft drink manufacturer alleging that benzene in the soft drink caused acute myelogenous leukemia (AML) and other ailments. A web based Google search of benzene and verdicts will result in hundreds of hits. Numerous web page advertisements from law firms soliciting claims based upon exposure to benzene can be found.
Mixed Litigation ResultsTo Date
Plaintiffs have scored big wins in several benzene cases. For example, the Texas Supreme Court upheld a $6,000,000 punitive damages award against Mobil Oil Corp. Plaintiff’s decedent was a worker at a Mobil refinery and it was alleged that his AML was caused by Mobil’s failure to warn of the risks of his exposure to benzene at the refinery.
The estate of a woman who died from leukemia allegedly caused by the release of benzene at an Amoco gasoline refinery received a $13,000,000 verdict. A California superior court awarded a part-time aircraft painter $2,200,000 for leukemia allegedly caused by exposure to benzene.
Yet defendants have also succeeded in several benzene cases. A jury that believed benzene in an automotive product caused plaintiff’s non-Hodgkin’s lymphoma awarded a plaintiff mechanic $2,000,000. The presiding judge ultimately granted defendants’ motions for judgment notwithstanding the verdict due to the failure of plaintiff’s expert evidence to prove a causal connection between the benzene exposure and the lymphoma. In West Virginia, defendant was found not liable by a jury in an action based upon benzene in mineral spirits.
Defending Benzene Claims
The epidemiological basis for a given product or for benzene itself to cause a specific disease can be clear, contradictory, or non-existent. For example, cohort studies in the early 1970’s concluded that benzene was associated with AML and multiple myeloma. Subsequent studies over the years have concluded just the opposite – the association between benzene and multiple myeloma does not rise to accepted statistical significance. Knowledge of these studies is crucial to the legal defense of a wrongfully accused product manufacturer.
Although this litigation could be classified as standard toxic tort litigation based upon common and longstanding legal causes of action, benzene litigation presents its own unique and complex issues requiring special handling. The complaint pleading initially filed by plaintiffs in benzene litigation typically alleges liability based upon the negligent breach of a duty, strict products liability, failure to warn, and/or breach of warranty. Whether the applicable standard of care was breached, whether an unreasonably dangerous and defective condition existed in the product, and whether local law imposes an implied warranty upon the manufacturer are standard issues in benzene tort litigation.
Benzene litigation, however, involves its own specialized knowledge regarding applicable standards of care and causation. Complex medical and statistical analysis is involved. For example, epidemiological studies may or may not prove an association between benzene and the specific disease alleged by plaintiff. Crucial toxicological and industrial hygiene analyses must be performed to determine whether the dosage to which plaintiff was exposed specifically caused plaintiff’s injury. Medical analysis of plaintiff’s condition can prove that plaintiff had a different disease than the disease alleged in the complaint.
Statistical analysis of case and cohort studies must be made in benzene litigation. Often the groups being studied do not mirror plaintiff’s working conditions. Odds ratios, risk ratios, standard mortality rates, etc. may or may not rise to a sufficient magnitude to be generally accepted within the medical and scientific community as being statistically significant. Moreover, statistical analysis of the confidence intervals applicable to the results may indicate that the results could have been caused by chance, rather than by benzene. Skilled defense lawyers may be able to challenge plaintiff’s experts under a jurisdiction’s Daubert or Frye standards of admissibility. The benzene litigation arena may prove to be a home for junk science unless challenged now by competent legal counsel.
Practice Pointers:
Third party administrators, adjusters, litigation attorneys, medical doctors, epidemiologists, toxicologist, and industrial hygienists must be well grounded in the issues specific to benzene litigation in order to properly handle a benzene claim or lawsuit.
• The alleged disease must be identified early and be verified by plaintiff’s treating physicians and competent defense experts.• Exposure dates and the date of discovery of the injury are important in determining whether a statute of limitations or of repose may apply to bar plaintiff’s claim.• Litigation counsel must consult with expert epidemiologists, toxicologists, and industrial hygienists to analyze the current scientific literature regarding general and specific causation.
If we can be of assistance to you with your benzene litigation, please contact Bob Gilmartin at Clausen’s Chicago office (312/855-1010) or at rgilmartin@clausen.com.
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