The Fallacy Of So Called Trace Benzene Cases
Author: Randall Phillips
Consumer products in the United States have not had significant
levels of benzene for decades, yet Plaintiffs' counsel have
filed thousands of cases, often called trace benzene suits,
asserting that various consumer products such as degreasers,
carburetor cleaners, mineral spirits, and paints have caused
their clients to contract Leukemia, aplastic anemia or other
blood related diseases. Since benzene has not been a known and
intended ingredient of these products for many years, the
claimants assert that other solvents that have been substituted
for benzene, such as Toluene, Xylene, Hexane, Stoddards Solvent
and VM&P Naphtha contain benzene and cause users to be exposed
to benzene.
These suits are premised on exaggerated claims that these
products contain much higher levels of benzene than they
actually do, pointing to published references that are decades
old or which rely on old references. (1), (2), (3), (4).
Plaintiffs then add exaggerated usage claims to puff up exposure
levels, and rely on a well known group of experts who promote a
no threshold, any level of exposure is enough theory of
causation. In doing so, Plaintiffs thrive on vague lay testimony
of co-workers, the lack of recent published peer reviewed
literature on benzene content of these solvents, and the lack of
actual air or content test results during the Plaintiff's
exposure period to weave together a superficially plausible, but
flawed, claim hoping to get past a Daubert challenge and get to
a sympathetic jury.
An aggressive three pronged attack can expose Plaintiff's
claims as lacking substance.
First, establishing the benzene content of the product is in
most jurisdictions the Plaintiff's burden of proof, and is by
and large a fact issue, not a matter for expert opinion. Expert
opinions must be based on reliable data. Decades old references
do not establish benzene content of current or recently used
products or solvents not tested in a comparable time period as
the references. Unless Plaintiff can establish by direct test
results, MSDS' or other documentation on Defendant's products
during the alleged exposure period, Plaintiff may not be able to
prove with admissible evidence that the products at issue
contained any detectible levels of benzene or any specific
amount of benzene, that could then be used to estimate the
Plaintiff's exposure or dosage.
In response to Plaintiff's expert, Melvyn Kopstein's old
references in his published article (1), a number of arguments
can be made. First, the Consumer Product Safety Commission
commissioned two studies resulting in reports in 1978 and 1980
and found nearly all consumer products already had less than .1%
benzene content and 3 of 5 carburetor cleaners had no detectible
levels of benzene. (5) (6). These reports lead the Consumer
Product Safety Commission to withdraw their proposed ban on
consumer products with over 0.1% benzene, as there was no need
for the ban (7). Kopstein's references were also attacked by the
chemical industry which provided proof of the low current levels
of benzene in their solvents. (2, 4). Kopstein has testified in
litigation that benzene levels trended downward after his older
references were issued. (22, 23).
The second prong of the attack should be against asserted high
exposures based on unrealistic usage assumptions, and vague or
selective statements of co-workers. High estimated exposures are
often based on continuous use of multiple cans of spray or
product per job.
Another expert frequently used by Plaintiffs recently published
an article which indirectly contradicts many of Plaintiff's
usage claims and benzene exposure claims finding total VOC
exposures from use of these products to be less than OSHA limits
(8). Amazingly, this study did not address benzene exposures,
directly. However, indirectly, it helps establish low benzene
exposures by establishing low total volatile organic compound
(VOC) levels. Detailed discovery of purchase and job records can
also be used to show that the Plaintiff's actual usage is far
less than estimated by Plaintiff's experts. In addition, actual
simulated testing done by one of Plaintiff's experts recently
showed only intermittent use. (8) Also, many repair jobs
performed by the claimant mechanic may not use these products at
all.
The fourth prong is to attack the low dose, no threshold claims
of Plaintiff's experts.
Most reliable epidemiology studies have concluded that
cumulative exposures of at least 50 ppm-years and most likely
200-400 ppm-years is required to cause AML, the only form of
Leukemia that has clearly been linked to benzene exposures.
(9-14). Other studies, such as the Glass, et al studies of the
Australian Petroleum Industry Cohort and studies of the Chinese
Cohort have been found to be flawed and not a reliable basis for
establishing causation. (15-19).
Finally, some experts have put forth an unproven hypothesis
that certain types of chromosome damages are markers of benzene
induced Leukemia. However, even those Plaintiff experts putting
forth such hypothesis have not been able to prove any particular
pattern of chromosome damage as a basis to claim benzene as the
cause. (20) In fact, one recent study surprised these scientists
by disproving their hypothesis that topoisomerase inhibitors act
like benzene in causing chromosome damage and Leukemia. (21).
So called Trace Benzene cases can be successfully defended with
an aggressive multi-pronged attack on exposure related and
causation issues.
(1)Kopstein M. 2006, Potential uses of petrochemical products
can result in significant benzene exposures: MSDS must list
benzene as an ingredient. J. Occup. Environment. Hyg. 3(1): 1-8;
(2)Jacques A.M. 2006 Benzene Levels in Hydrocarbon Solvents. J.
Occup. Environment. Hyg. 3:D85-D87. [Benzene levels in modern
solvents generally do not exceed .01% or 100 ppmv];
(3)Fedoruk, M.J., et al 2003, Benzene Exposure Assessment for
Use of a Mineral Spirits - Based Degreaser. App. Occupational &
Environment Hyg. 18:764-771. [spiked mineral spirits used.
Natural benzene content of mineral spirits was 3 to10 ppm;
nonrepresentative aggressive and vigorous simulated cleaning
procedures used to obtain worst case scenario];
(4)McKee, R.H., 2007, Benzene Levels in Hydrocarbon Solvents -
Response to Author's Reply J. Occup. Environment. Hyg.
4:060-D62. [Benzene levels in modern solvents have been below
.1% for 20 years and below 100 ppm for solvents produced by the
members of the Hydrocarbon Solvents Panel];
(5)Battelle Columbus Laboratories, "Technical & Economic
Feasibility of a Ban on Consumer Products Containing More Than
0.1% or More Benzene" 1978 Report to United States Consumer
Product Safety Commission (CPSC -C-78-0091) dated December 22,
1978;
(6)Hodgkins, Doris, 1980, "Benzene Analysis of Consumer
Products" Report to United States Consumer Product Safety
Commission, dated March 13, 1980;
(7)Proposed to Withdraw Proposed Ban, 46 FR 3034-01; 1981 WL
108534(F.R.), January 13, 1981;
(8)Wilson, M.P., Hammond S.K., Nicas, M, and Hubbard, A.E.,
2007 "Worker Exposure to Volatile Organic Compounds in the
Vehicle Repair Industry" J. Occup. Envir. Hyg. 4:301-310;
(9)Wong O (1995), Risk of Acute Myeloid Leukemia and Multiple
Myeloma In Workers Exposed to Benzene. Occup. Envir. Med.
52:380-384;
(10)Wong O, Raabe, G.K. (1998), Acute Myeloid & Monocytic
Leukemia and Benzene Exposure in Petroleum Distribution Workers
in the United Kingdom. Occup. Envir. Med. 55: 360-362;
(11)Wong O (1998), Re: Benzene and Dose Related Incidence of
Hematologic Neoplasms in China. J. National Cancer Institute 90:
469-670;
(12)Rinsky, R.A., et al (2002) Benzene Exposure and
Hematopoietic Mortality; Long Term Epidemiologic Risk
Assessment. Am J. Ind. Med. 42: 474-480;
13.Crump K. (1996) Risk of Benzene - Induced Leukemia Predicted
From Pliofilm Cohort Envir. Health Perspect. 104: 1437-1441;
14.Paustenbach D.J., et al (1992) Reevaluation of Benzene
Exposure for the Pliofilm (rubber workers) Cohort (1936-1976)
Toxicol Envir. Health 36(3):177-231;
15.Wu, W. (1988) Occupational Cancer Epidemiology in the
Peoples Republic of China J. Occp. Med. 30:968-974;
16.U.S. Environmental Protection Agency Integrated Risk
Information System, Benzene (CASRN 71-43-2), 2003;
17.Travis L.B., et al (1994) Hematopoietic Malignancies and
related disorders among benzene - exposed workers in China.
Leukemia and Lymphoma 14:91-102;
18.Wong O. (1999) A Critique of the Exposure Assessment in the
Epidemiologic Study of Benzene - exposed workers in China
conducted by the Chinese Academy of Preventive Medicine and U.S.
National Cancer Institute. Reg. Tax and Pharm. 30:259-267;
19.Natelson, E.A. (2007) Benzene Induced Acute Myeloid Leukemia
- A Clinician's Perspective, Am. J. Hematol. 00:000-000, 2007
Accepted 2/13/07;
20.Zhang L, Eastmond, D.A., Smith M.T., The Nature of
Chromosomal Aberrations Detected in Humans Exposed to Benzene
Crit. Rev. Tox. 32(1):1 - 42 (2002);
21.Escobar, P.A., Smith, M.T., Visishta A, Hubbard A. E.,
Zhang, L. (2007) Leukemia Specific Chromosome Damage Detected by
COMET with fluorescence in situ hybridization (COMET-FISH).
Mutagenesis 2007 June 16 [E-publication available only];
22.Deposition of Melvyn J. Kopstein, 1/5/99 in Jill Edwards, et
al v. Safety-Kleen Corporation, U.S. Dist. Ct., S.D. Fla. Case,.
#97-7180-CV at pp 86-89;
23.Deposition of Melvyn J. Kopstein, 10/20/06, Parker v. The
Goodyear Tire & Rubber Company, et al, 14th Judicial District
Court, Texas, Cause #05-0390-B at pp 69-72, 126.
About The Author: Randall E. Phillips is the principal of
Provizer and Phillips, P.C. in Bingham Farms,Mi.
http://www.provizer-phillips
642-0444;rphillips@p-ppc.com. He handles complex litigation such
as toxic tort, environmental, professional liability,
construction defect, and insurance coverage litigation.
