Benzene: Trace or Pandemic?

Benzene litigation continues to grow due to the gaining popularity of "trace benzene" cases in California and other jurisdictions. In these cases, plaintiffs attempt to link causation for illnesses often associated with benzene to products containing only trace amounts of benzene. Products containing trace amounts of benzene are commonly used by consumers and include detergents, solvents, paints, oil and gasoline. Recent class action cases even pointed to soda as a source of benzene exposure. Prevalent exposure to such products precipitates the potential "trace benzene" claims.

This trend is particularly troublesome for manufacturers of products used in the workplace. Along with consumer product and environmental exposure claims, claims of exposure to benzene in the workplace remain a significant basis of plaintiffs' cases. 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%. As a result, these manufacturers may be immersed in benzene litigation.

Recent decisions provide hope for defeating claims and dampening the fire of widespread "trace benzene" litigation. For example, Richards v. Home Depot, Inc., 2005 U.S. Dist. LEXIS 31616 (E.D.N.Y. Sept. 8, 2005), may limit claims against manufacturers for failure to warn in certain cases. The Richards court noted that the Federal Hazardous Substances Act (FSHA) preempts state causes of action; thus, manufacturers complying with FSHA standards should not be subject to tort claims on the basis of failure to warn.¹

Parker v. Mobil Oil Corp., 2005 N.Y. App. Div. LEXIS 3326 (N.Y. Mar. 28, 2005), involving a 17 year old gas station attendant alleging his acute myelogenous leukemia (often referred to as AML) was caused by his exposure to gasoline containing benzene, is another significant decision. In Parker, the court determined that the plaintiff was required to establish the precise level of his exposure to benzene, in order to show exposure caused his illness, through a scientifically-reliable methodology. The court set forth a three-step process to access the alleged link between an individual's disease and the specific factor suspected of causing the disease. The three-step process includes: (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 plaintiff's illness was caused by the toxin, even when weighed against other possible causes of the illness. In Parker, the court's implementation of the three-step process resulted in dismissing the plaintiff's complaint due to the inadmissibility of plaintiff's expert for lack of scientific reliability.

Frias v. Atlantic Richfield Company, 104 S.W. 3d 925 (2003) also emphasizes the plaintiff's need to provide specific details regarding his exposure to benzene in order to show a causal link to his illness. The Frias 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. Frias resulted in summary judgment in favor of the defendant.

Although the filing of benzene lawsuits is on the rise, recent decisions suggest heightened standards for plaintiffs to prove their claims. As these cases indicate, employing the appropriate defenses can help manufacturers of products containing trace amounts of benzene escape the pandemic of "trace benzene" litigation. Gordon & Rees' Environmental group has been successful in defeating and limiting a number of these claims through exceptional expert testimony and litigation strategies. A large part of our success includes our expert databases, defeating plaintiffs experts opinions and eliminating or significantly reducing the causal link between benzene and the claimed injuries.