The short answer is probably not. Asbestos litigation is on the wane due to reforms in Texas and other states and the possible passage of federal legislation that will remove asbestos claims from the courts to an administrative agency. Plaintiffs’ firms that once specialized in asbestos are adding “benzene sections” to their firms and websites. Today an internet search for “what causes leukemia” is likely to retrieve websites of self-described “benzene lawyers” in addition to the M. D. Anderson Cancer Care Center and the Mayo Clinic.

Benzene is a Carcinogen. Historically, plaintiffs have asserted that benzene caused various types of cancer, but only acute myelogenous leukemia has been definitively linked to benzene through epidemiological studies. Other blood- and lymphatic-related cancers, such as chronic myelogenous leukemia, non-Hodgkin’s lymphoma, and multiple myeloma are not so well linked to benzene. Nevertheless, these cancers and other diseases are more frequently becoming the subjects of benzene lawsuits. Unlike asbestos plaintiffs that often are brought into litigation through mass X-ray screenings, benzene plaintiffs cannot be screened en masse. Thus, it is unlikely that benzene plaintiffs will ever reach the sheer number of asbestos plaintiffs because benzene plaintiffs usually have some form of cancer.

Current Benzene Defendants. Typically, plaintiffs have sued: (1) benzene manufacturers; (2) manufacturers of products containing a fraction of benzene; (3) premises owners who allowed the use of benzene containing products; (4) employers; (5) independent contractors using benzene; and (6) benzene suppliers and distributors. Note that many products may have a trace amount of benzene or less than 0.1%. Several law firms that specialize in toxic torts have recently begun suing defendants whose products contained only a trace amount of benzene, if any. As benzene litigation evolves, it likely will impact new companies that may have never considered themselves to be potential benzene defendants.

Quantifying Benzene Exposure. Like asbestos, benzene use is, and was, prevalent in industrial, commercial and even residential settings. Products vary greatly in benzene concentration, ranging from virtually 100% in industrial settings to trace amounts. Most experts believe that the duration and amount of benzene exposure is critical in determining if a specific person’s cancer was caused by benzene or is of unknown origin (idiopathic). This determination is heavily dependent upon the plaintiff’s own testimony and that of coworkers and family members, which is often very difficult to rebut. In litigation, industrial hygienists often calculate a plaintiff’s benzene exposure based upon such testimony and the products’ benzene concentration and other characteristics. Absent some extraordinary use, it is doubtful that exposure from a trace amount product alone can actually cause an illness, but when grouped in with many defendants and their products, plaintiffs will argue that such trace exposure “contributed” to the cause of their illnesses.

Benzene Cases Are Defensible. From a defense point of view, there is no silver bullet and each case is fact dependent. To mount an effective defense one must understand the: (1) disease process; (2) benzene product at issue; (3) plaintiff’s manner of exposure(s); and (4) industrial hygienist’s science and technology driven testimony. Retaining competent counsel experienced in benzene litigation is the first step in a successful defense.

For more information, contact syates@coatsrose.com or 713-653-7379.