BENZENE LITIGATION:
AN EMERGING MASS
TORT
Presentation to the Casualty Actuarial Society
William A. Brauer CPCU
Top-Ten Reasons Benzene Litigation Is An
Emerging Mass Tort
• Industrial Exposures-Large pool of potential
Litigants
• Common compound
• Some Scientific Support on Causation
• Signature Disease- Acute Myeloid Leukemia
(AML)
• History of Work Comp case awards
• Latency Period
• Recruitment by Plaintiff Bar
• Some 7 figure verdicts
• Multiple defendants
• Mealeys has a Litigation Reporter on it
Web Recruitment a Mass Lit Hallmark
Law Firms Dominate Benzene Web Searches
Benzene Cases-Plaintiff Wins
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Ryan v. BP Amoco NoCV223271 Mo Cir Jackson : $13.3 million in
compensatory damages. Sept 2005 Environmental case. Resident next to
Spring Creek Refinery died from leukemia
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Camizzi v Akso Products Inc. et. al. BC 289503,Calif Super, Los Angeles
County: Missionary and part time aircraft painter awarded $2.2 million for
leukemia alleged from benzene in paint
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Mason v. Texaco, 948 F.2d 1546 (10th Cir. 1991). Otis Mason died of
leukemia caused by exposure to benzene, an industrial solvent and
gasoline component, for which the jury awarded $34 million.
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Watts et.al.. v. Radiator Specialty No.2002—364 Miss Cir Ct2004 $2million
NHL Liquid Wrench. Judge granted defense motion for jnov. Dr Barry Levy
involved. Appeal filed.
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Mobil Oil v. Ellender 968 S.W. 2d 917 (Tex 1998) $6.00 mil punitive,
$622,88 compensatory AML failure to warn/ conscious indifference toward
the safety of contract workers Beaumont Refinery
It Takes Some Substantial Early Verdicts to Fuel litigation
What is Benzene ?
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Benzene, also known as benzol, is a hydrocarbon liquid and an effective
solvent. Highly flammable, colorless, with a sweet odor. Benzene
evaporates quickly and dissolves slightly in water. Most people can smell
benzene in air at 1.5-4.7 ppm and smell benzene in water at 2 ppm. Most
people can begin to taste benzene in water at 0.5-4.5 ppm. One part per
million is approximately equal to one drop in 40 gallons. Benzene is found in
air, water, and soil. Benzene comes from both industrial and natural
sources.
•
Various industries use benzene to make other chemicals, such as styrene
(for plastics), cumene (for various resins), and cyclohexane (for nylon and
synthetic fibers). Also used in manufacturing of some types of rubbers,
lubricants, dyes, detergents, drugs, and pesticides.
•
Because of its wide use, benzene ranks in the top 20 in production volume
for chemicals produced in the United States.
•
Originally derived from coal tar, now produced from petroleum.
•
Used as a substitute for lead, benzene now makes up 1 to 2 percent of
every gallon of gasoline and it is released as a by-product of fuel
combustion.
Some Current or Historical Benzene Products
crude oil
refined petroleum
products
asphalts
charcoal lighter fluid
cigarette lighter fluid
cleaners
contact cements
gasoline
glues
hydraulic fluids
inks
lacquer thinner
mineral spirits
paints and coatings
(some)
pesticides
rubber cement
solvents
The USEPA and the International Agency for Research on Cancer (IARC)
classify benzene as a Group A or Group 1 human carcinogen.
The EPA has set the maximum permissible level of benzene in drinking water
at 0.005 milligrams per liter (0.005 mg/L)
OSHA has set a permissible exposure limit of 1 part of benzene per million
parts of air (1 ppm) in the workplace during an 8-hour workday, 40-hour
workweek. (1978), down from 10 ppm in 1971. The short term exposure limit
for airborne benzene is 5 ppm for 15 minutes.
Occupations With Current Or Historical Benzene
Exposure Potential
Adhesive production
Barge Workers
Chemical Workers
Dock Workers
Gasoline distribution workers
Industrial plant workers who use solvents
Installers using glues, solvents
Newspaper Press Workers
Offshore Oilrig Workers
Painters
Paper and Pulp
Pesticide Manufacturing
Plumbers Pipefitters
Printers
Refinery Workers
Rubber Workers
Shoe / Leather workers
Synthetic Rubber Production
Tankermen
Truck Drivers
What’s the Exposure in People Terms?
• As many as 238,000 people may be occupationally exposed to
benzene in the United States currently. Source: NIOSH
• Although benzene far less common than it once was, just as with
asbestos there is a latency period between exposure and disease
manifestation and a case presenting today may come from a worker
who was exposed to historically higher workplace levels.
• Efforts to reduce VOC’s both in the ambient air and in the workplace
and improvements in industrial hygiene have reduced the numbers
of workers occupationally exposed. Adding to current exposure
estimates a modification for employee turnover, a provision for any
number of older workers and retirees who worked with and/or
around benzene products or benzene containing workplaces at
some points in their careers increases the total number of
occupationally exposed workers.
• The total number of current and former workers with appreciable
occupation exposures is no doubt far over the current estimates.
• Very likely that we’re in the same ballpark with the numbers of those
who welded or were significantly exposed to silicates. Estimates for
each of those exposures were in the realm of one million workers.
Significant Number of Potential Recruits
The Medical-Epidemiological Background
•
A considerable number of human studies provide evidence linking
benzene and cancer. Initially, increased risks of leukemia, chiefly acute
myeloid leukemia (AML), were reported among workers with high
levels of benzene exposure in the chemical, shoemaking, and oil
refining industries.
•
Long term studies of workers at three Ohio plants (Pliofilm which
made rubber sheeting with a benzene solvent evaporative) going back
to the 1940’s provided the first epidemiological evidence that benzene
was carcinogenic.
•
The National Cancer Institute and Chinese Academy of preventative
medicine conducted a long term study of over 74,000 workers at 672
factories in 12 cities and found elevated risks of hematologic
neoplasms even at exposure levels less than 10ppm
•
There is a lengthy history of control of benzene by both OSHA and
European governmental agencies
How Does Benzene Cause Disease/Injury?
It is postulated that it is metabolites of benzene, called quinones which
are the instrument of harm and these generally react with the
hematopoietic tissues. These cells, found within the bone marrow,
produce blood cells. The Leukemias fit into the general class called
neoplasms of the Lymphhopoietic and Hematopoietic tissues. Cancers
such as lymphomas (solid tumors) multiple myelomas (cancers of the
plasma cells and lymphoid leukemias originate in the lymphoid line of
cells in areas such as the lymph nodes.
Clinical and epidemiological evidence consistently indicate that acute
myeloid leukemia (AML) and its variants, alternatively called acute
nonlymphocytic leukemias (ANLL) can be caused by benzene exposure.
Many plaintiffs suffering from multiple myelomas (MM) have filed
benzene suits Though some statistics suggest a link, the science is not
generally supportive of benzene causation of MM. Likewise,plaintiffs
have also filed suits linking their Non-Hodgkin's Lymphoma (NHL) to
benzene exposures. Controversy still exists as to the role of benzene
and NHL development.
A Caveat On Exposure Levels
• Benzene levels in various workplace studies, dating back to the
1940’s and ’50’s were high (ex. The Pliofilm Ohio plant). Current
OSHA standards (1ppm reduced from higher historical limits) make
current day comparisons and domestic studies difficult. Clean Air Act
and OSHA standards have also led to the reformulation and
reduction of or elimination of benzene in many products.
• The Italian shoe worker study: No worker who started after Italian
law reduced the benzene content in glue to a maximum 2% in 1963
developed aplastic anemia, a precursor of AML
• Benzene litigation continues to grow due to the gaining popularity of
"trace benzene" cases (a term coined by Gordon & Rees) in
California and other jurisdictions. In "trace benzene" cases, plaintiff's
counsel frequently chooses to sue the manufacturers and
distributors of all products the plaintiff used at work, including
products with benzene content as small as 0.001%.
• Many studies are foreign as US workplaces generally OSHA
compliant
Acute Myeloid Leukemia (AML)
•
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AML is a blood cancer in which stem cells (myeloid cells) produce abnormal
blood cells known as "myeloblasts“ or leukemia cells. These do not mature
into healthy white blood cells, instead these abnormal "blast" cells multiply out
of control displacing or crowding out healthy blood cells, thus causing low
numbers of red and white blood cells, and platelets.
The leukemia cells can spread outside the blood to other parts of the body,
including the central nervous system (brain and spinal cord), skin, and gums.
Sometimes leukemia cells form a solid tumor called a granulocytic sarcoma or
chloroma.
Bone marrow failure occurs as cancerous cells replace normal bone marrow.
The bone marrow is part of the body's immune system. Problems with the
immune system can make it harder for the body to fight infection. Patients with
AML have an increased risk of bleeding as healthy blood cells drop. They
become more prone to infection as the immune system is compromised.
The goal of treatment is to kill the cancer cells with chemo. Further treatment
called consolidation is necessary, which may consist of addl chemo, bone
marrow transplant or stem cell transplant. Radiotherapy, and monoclonal
antibodies may also be utilized
Approximately 13,400 new cases of AML diagnosed annually accounting for
less than 1% of all cancers and 34% of all leukemias. AML has a slight male
predominance (1.2:1.0).] AML median patient age at diagnosis is 65 years.
Incidence of AML is rare below the age of 40 but increases progressively with
age. Overall, the 5-year survival rate in adults under 65 is about 33%.
AML is the Signature Disease in the Litigation
Multiple Myeloma (MM)
• In multiple myeloma abnormal plasma cells, which produce the fluid
portion of the blood, build up in the bone marrow ultimately forming
tumors and preventing the bone marrow from making enough
healthy stem cells that develop into red and white blood cells and
platelets. The tumors within the bone may cause extreme pain and
complications
• There is far less consensus as to a causative link between benzene
and MM.
• Strong influence of race on the incidence of myeloma and the
occurrence of familial clusters of MM cases suggest that genetic
factors are involved in causation. Other risk factors for multiple
myeloma are autoimmune disorders, chronic immune stimulation,
and ionizing radiation)
• Has a longer latency period than AML making it perhaps harder to
find in studies
• As a point of reference there are an estimated 15 to 16,000 cases of
MM diagnosed annually
Multiple Myeloma in a Multinational Cohort of More
Than 250,000 Petroleum Workers by Country and Industrial Division
Country and Industrial Division
Observed Deaths
v.
Expected Deaths
US Refinery
116
120.01
US, UK, and Canada Refinery
145
157.91
48
51.46
6
9.27
205
220.93
US, UK, and Canada Distribution
US and Canada Production and pipeline
US, UK, Canada, and Australia All divisions
Data from Wong and Raabe
•Case-control studies from other countries also support the finding of no
causal relationship between multiple myeloma and benzene exposure from
American studies.
Source: Benzene and Multiple Myeloma: Appraisal of the Scientific Evidence Bergsagelet.al. Journal of the
American Society of Hematology Vol 94 No 4 August 1999
The Numbers Linking Benzene And MM Just Aren’t There In
This Extremely Large Cohort
Source: Environmental Health Perspectives Vol 104 Supp 6 Dec 1996 “Does Benzene Cause Multiple Myeloma? An analysis of the
Published Case control literature Shewet Bwezabah et. Al.
The Tenuous MM Link
• The odds ratios for those studies that have examined benzene
exposure are approximately 1.0. Exposures to chemicals in
categories containing benzene, exposures to petroleum products,
and employment in petroleum-related occupations do not appear to
be risk factors for multiple myeloma. Products of combustion
described as "engine exhaust" have a suggested association, while
products of combustion described as "cigarette smoking" do not,
cigarette smoking often being considered a surrogate for benzene
exposure. Much of the literature on risk factors for multiple myeloma
is ambivalent. The current published case-control literature on
benzene exposure is not ambivalent and does not indicate that
benzene exposure is a risk factor for multiple myeloma.
Source: Environmental Health Perspectives Vol 104 Supp 6 Dec 1996 “Does Benzene Cause Multiple Myeloma?
•Plaintiffs cite studies that support MM causation by benzene.
Swedish Paint Industry Study: Tracked painters first employed
1956 or earlier, excess was particularly marked for multiple
myeloma (SIR 3.8)
Some Studies Still Indicate A Benzene MM Link
(Or Is It Another Chemical And Not Benzene?)
• “While we agree that the causal relation between benzene and MM
remains unproven, there are sufficient data to make this association
highly probable. “
Source Environmental and Occupational Health Sciences Institute (EOHSI) LETTER Drs Goldstein and Shalalt Feb 2000 in Blood
Magazine
• Australian Petroleum Industry Study Standardized Mortality Ratio
(SMR) of 2.6
• Monsanto Study: 4172 workers SMR 2.6 (95% CI 0.7 to 6.7) in the
>6 ppm-years group
• A case-control study of multiple myeloma in Japan: Occupational
exposure to chemical products including organic solvents or
petroleum showed a significant association with increased risk (OR
= 8.05
• Cancer risks in New Zealand painters: Multiple Myeloma (OR 1.95,
Risks for MM were greater among car or spray painters and sign
writers (OR 2.81)
NHL risk factors include infectious agents (HIV, Epstein Barr
virus (mononucleosis), Heliobacter pylori bacteria (stomach
ulcers), immunosuppression during organ transplants, genetic
susceptibility and environmental risk factors. Exposure to
polychlorinated biphenyls (PCB’s) and phenoxy herbicides are
also seen factors. Epstein Barr associated with about one-half
the cases however virus not conclusively established as a
cause. DNA from Simian Virus 40 (SV40), turned up in high
percentages in various studies. Studies have also shown that
patients exposed to chemoradiotherapy and chemotherapeutic
agents may develop lymphoma.
One research team conducted a systematic review of all casecontrol and cohort studies (mega study) that identified
probable occupational exposures to benzene and NHL
morbidity or mortality:
“We identified 43 case-control studies of NHL outcomes that
recognized persons with probable occupational exposure to
benzene. Forty of these 43 (93%) studies show some
elevation of NHL risk, with 23 of 43 (53%) studies finding
statistically significant associations between NHL risk and
probable benzene exposure.”
Non-Hodgkin Lymphoma (NHL)
56,390 NHL cases diagnosed in the USA in 2005. Non-Hodgkin
lymphoma is the sixth most common cancer in males and the fifth
most common cancer in females in the United States. The ageadjusted incidence of non-Hodgkin lymphoma rose by 74 percent
from 1975 to 2002 - an annual average percentage increase of 2.7
percent.
Lymphoma is a general term for a group of cancers that originates in
the lymphatic system. Non-Hodgkin lymphoma represents a diverse
group of cancers, with the distinctions between types based on the
characteristics of the cancerous cells. The groups are often
classified as indolent or aggressive, low, intermediate and high
grade. Non-Hodgkin lymphoma is a group of diseases and not just
one type. Each histologic grouping is diagnosed and treated
differently, and therefore expectations are that causations will be
ultimately prove to be individualistic and not blanket.
Aplastic Anemia
• Aplastic anemia is caused by bone marrow
failure, resulting in hypoplasia with an
inadequate number of all cell lines. Severe
aplastic anemia typically has a poor prognosis
and can progress to leukemia. Fatal aplastic
anemia following benzene exposure was first
reported in workers in the nineteenth century.
• Relatively rare, only several thousand cases per
year diagnosed in US.
•Typical Pleadings in a Benzene Lawsuit
•Plaintiff worked with and was exposed to various
benzene containing, or alternatively aromatic
hydrocarbon-containing chemicals, solvents and/or
paints, manufactured, processed, supplied and/or
sold by defendants.
•Plaintiff was exposed to said products by means of
inhalation and dermal absorption from direct dermal
contact by said products.
•Plaintiff’s exposure to the defendants aromatic
hydrocarbon-containing chemicals, solvents, paints
and/or fuels was the proximate cause of his
development of AML (or variants ANLL), or less
commonly multiple myeloma (MM), or NHL
BURDEN OF PROOF
•
Plaintiffs in toxic exposure cases often attempt to
substitute less burdensome, alternative expert opinions in
lieu of precise dose-response and exposure levels (such
as mathematical models and comparisons to subjects in
epidemiological studies).
•
Chemical–exposure plaintiffs must prove both general and
specific causation. National Academy of Sciences/World
Health Organization causation methodology:
Level of exposure to toxin must be established.
Must prove that toxin is capable of causing disease
Proof that the level of exposure was sufficient to cause
• Merrell Dow v. Havner, 953 S.W. 2d 706 (Tex1997) Tex Sup Ct. held
that epidemiological studies must demonstrate a doubling of the
risk, i.e. 2.0 risk ratio at 95% confidence; show a doubled risk in
multiple studies, as a single study is not persuasive and reflect the
actual exposure and disease of the plaintiff in the case.
• Frias v. Atlantic Richfield Company, 104 S.W. 3d 925 (2003) alleged
benzene caused aplastic anemia (AA). Court found the plaintiff's
description of exposure ("consistently," "regular," "occasional") so
indefinite that the frequency and duration of the plaintiff's exposure
was too speculative to prove causation.
• Parker v. Mobil Oil Corp., 2005 N.Y. App. Div. LEXIS 3326 (N.Y. Mar.
28, 2005) court set forth 3 step process:
(1) determining the plaintiff's exposure to the toxin, (2) ascertaining
whether scientific literature supports proof that the plaintiff's level of
exposure to the toxin is capable of producing the illness, and (3)
establishing specific causation by demonstrating the probability that
the particular plaintiffs illness was caused by the toxin
• In Nonnon v.City of New York, NYS 2ns 2006 WL 1529293
N.Y.A.D.1Dept) the court allowed testimony of an expert that lacked
exposure analysis, abserved the testimony was not “novel” and
distinguished the case from Parker v. Mobil because no scientist
could make an accurate measurement of the doses of the combined
carcinogens the residents near a city landfill were exposed to
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Grant v Bristol Meyer Squibb 97F. Supp. 2d(D. Ariz.,2000) “If the
available body of epidemiology demonstrates that risk is not doubled,
then causation evidence is inadmissible.”
Austin v. Kerr-McGee 25 S.W.3d TexasApp 2000 Pltf died of
CML,alleged due to exposure to benzene in mineral spirits. Court
affirmed trial courts exclusion of expert testimony. No study cited
posited that benzene causes CML specifically but only found specific
relationships between benzene and other forms of leukemia (AML)
Mitchell v Gencorp 165 F.3d 778 7thCir 1999 Evidence that benzene
exposure caused AML not probative to show causation of CML in the
absence of adequate data directly related to CML
Exxon Corp v Makofski 116 S. W. 3d 176 Tex App 2003 Pltf alleged
benzene in underground water caused ALL-acute lymphocytic
leukemia. Parties experts agreed benzene caused AML, studies had
not reached same conclusion with ALL, most common in children.
One study associated ALL and other lymphatic leukemias with
exposure to benzene AND OTHER SOLVENTS but appellate court in
overturning trial court found the study told us nothing definitive about
benzene and ALL.
Edwards v. Safety-Kleen Corporation, 61 F.Supp.2d 1354 (S.D. Florida
1999). Plaintiff alleged that decedent's death (from myelodysplastic
syndrome - a bone marrow and blood disease ("MDS") was caused by
his exposure to benzene. In excluding the expert testimony regarding
decedent's benzene exposure levels, the court found that while the
formula used by the expert was well-established, his methodology was
neither tested nor reliable.
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Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999). 5th Circuit, while
recognizing that establishing exposure level is one of the "minimum facts"
necessary concluded that "the law does not require Plaintiffs to show the
precise level of benzene to which they were exposed." Thus, because the
expert's testimony was supported by evidence that plaintiffs' symptoms were
consistent with an exposure to high levels of benzene, the alleged level of
exposure was probable, and the testimony admissible.
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Sutera v. Perrier Group of America, Inc., 986 F.Supp.2d 655 (D. Mass. 1997).
Plaintiff alleged that his consumption of mineral water caused him to contract
Acute Promyleocytic Leukemia ( a variant of AML) the court noted that all of the
epidemiological studies involved subjects whose exposure to benzene was
through inhalation, and the dosage and duration of the exposure was
"substantially greater in order of magnitude" than plaintiff's. It also found the
studies unreliable because they do not "explore the exposure necessary to
trigger the cancer-producing mechanism.“
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Espinosa v. Does, NO BC322590 Calif.Super., Los Angeles; “Not necessary for
Espinoza’s disease to be linked directly to Univar’s solvents because Pltf. came
into contact with a number of solvents and needs only to show that Univar’s
products were a substantial factor in causing her disease.
Summary judgments not a cinch. Battling experts may generate
a triable issue of material fact, preventing entry of summary
judgment.
Benzene exposures are not solely
occupational but ubiquitous
EPA: Benzene is the most significant air toxic for which
cancer risk could be estimated, contributing 25 percent of
the average individual cancer risk identified in this
assessment. Based on EPA’s national emissions
inventory, the key sources for benzene are onroad (49%)
and nonroad mobile sources (19%), and open burning,
prescribed fires and wildfires (14%).
Air quality in "hot spots" will have to be dramatically
improved. Benzene levels would have to be reduced by
as much as 40 percent in Houston to comply with EPA
limits. Houston Business Journal – 9/27/2006
Exposures are not solely occupational product related
Benzene in Cigarette Smoke
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A “confounding factor” in the etiology of and epidemiological study of
other cancers, cigarette smoking is associated with an increased risk
of leukemia. Benzene, an established leukemogen, is present in
cigarette smoke. Cigarettes have been found to release between 50
and 150 micrograms of benzene per cigarette, so smoking and
second-hand smoke are important sources of exposure to benzene.
Cigarette smoke accounts for about half of the US national exposure
to benzene and for about 89% of total benzene exposure among
smokers. Secondhand smoke may account for up to 10% of benzene
exposure among nonsmokers.
“The cancer culprit: New research shows that benzene in
cigarettes is responsible for a significant proportion of deaths
from leukemia and acute myeloid leukemia.”
Conclusions
• Large numbers of potential litigants: some 85,000 AML
and other hematopoietic/lymphomatic cancers develop
annually. If just 2% +/- have suitable occupational
exposures that could produce 1000 to 2000 potential
cases annually (~11,000 welding fume cases filed to
date, ~30,000 silica cases filed to date)
• There is some scientific support to causation and a
grave and often fatal disease(s) is involved. Unlikely to
see unimpaireds, only certifiably diagnosed cancer
victims as plaintiffs.
• Major jurisdictional differences
• Significant defense costs: Commonly multi-defendant
actions. Consider what the total cost to the insurance
industry may be.
• Major asbestos firms moving in: Simmons
Cooper/Madison County, Baron & Budd
• We’re Going to See More of it