BENZENE LITIGATION: AN EMERGING MASS TORT

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BENZENE LITIGATIONAN EMERGING MASS TORT
Presentation to the Casualty Actuarial Society
William A. Brauer CPCU
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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

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Web Recruitment a Mass Lit Hallmark
Law Firms Dominate Benzene Web Searches
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Benzene Cases-Plaintiff Wins

• 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
• 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
• 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.
• Watts et.al.. v. Radiator Specialty No.2002364
  Miss Cir Ct2004 2million NHL Liquid Wrench.
  Judge granted defense motion for jnov. Dr Barry
  Levy involved. Appeal filed.
• 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
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What is Benzene ?

• 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.

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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.
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Occupations With Current Or Historical Benzene
Exposure Potential

• Adhesive productionBarge WorkersChemical
  WorkersDock WorkersGasoline distribution
  workersIndustrial plant workers who use solvents
• Installers using glues, solvents Newspaper
  Press WorkersOffshore Oilrig Workers
  PaintersPaper and PulpPesticide
  ManufacturingPlumbers Pipefitters Printers
  Refinery WorkersRubber WorkersShoe / Leather
  workersSynthetic Rubber Production
  TankermenTruck Drivers

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Whats 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 VOCs 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 were 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
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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
  1940s 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

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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.
How Does Benzene Cause Disease/Injury?
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A Caveat On Exposure Levels

• Benzene levels in various workplace studies,
  dating back to the 1940s and 50s 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

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Acute Myeloid Leukemia (AML)

• 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 (1.21.0). 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
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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

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• 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
  
• US, UK, and Canada Distribution
  48
  51.46
• US and Canada Production and pipeline
  6 9.27
  
• US, UK, Canada, and Australia All divisions
  205 220.93
• 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 Arent
There In This Extremely Large Cohort
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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.
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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)

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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 gt6 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)

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• 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
  (PCBs) 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 case-control 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.

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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
  age-adjusted 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.

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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.

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• 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.
• Plaintiffs 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

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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).
• Chemicalexposure 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

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• 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. MS 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.
• 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.
• Espinosa v. Does, NO BC322590 Calif.Super., Los
  Angeles Not necessary for Espinozas disease to
  be linked directly to Univars solvents because
  Pltf. came into contact with a number of solvents
  and needs only to show that Univars 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.
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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 EPAs 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
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Benzene in Cigarette Smoke

• 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.
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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
• Were Going to See More of it