The Fallacy Of So Called Trace Benzene Cases

mer products in the United States have not hadLeukemia. However, even those Plaintiff experts
significant levels of benzene for decades, yetputting forth such hypothesis have not been able
Plaintiffs’ counsel have filed thousands ofto prove any particular pattern of chromosome
cases, often called trace benzene suits, assertingdamage as a basis to claim benzene as the cause.
that various consumer products such as(20) In fact, one recent study surprised these
degreasers, carburetor cleaners, mineral spirits,scientists by disproving their hypothesis that
and paints have caused their clients to contracttopoisomerase inhibitors act like benzene in
Leukemia, aplastic anemia or other blood relatedcausing chromosome damage and Leukemia. (21).
diseases. Since benzene has not been a knownSo called Trace Benzene cases can be
and intended ingredient of these products forsuccessfully defended with an aggressive
many years, the claimants assert that othermulti-pronged attack on exposure related and
solvents that have been substituted for benzene,causation issues.
such as Toluene, Xylene, Hexane, Stoddards(1)Kopstein M. 2006, Potential uses of
Solvent and VM&P Naphtha contain benzenepetrochemical products can result in significant
and cause users to be exposed to benzene.benzene exposures: MSDS must list benzene as
These suits are premised on exaggerated claimsan ingredient. J. Occup. Environment. Hyg. 3(1): 1-8;
that these products contain much higher levels of(2)Jacques A.M. 2006 Benzene Levels in
benzene than they actually do, pointing toHydrocarbon Solvents. J. Occup. Environment. Hyg.
published references that are decades old or3:D85-D87. [Benzene levels in modern solvents
which rely on old references. (1), (2), (3), (4).generally do not exceed .01% or 100 ppmv];
Plaintiffs then add exaggerated usage claims to(3)Fedoruk, M.J., et al 2003, Benzene Exposure
puff up exposure levels, and rely on a well knownAssessment for Use of a Mineral Spirits - Based
group of experts who promote a no threshold,Degreaser. App. Occupational & Environment
any level of exposure is enough theory ofHyg. 18:764-771. [spiked mineral spirits used.
causation. In doing so, Plaintiffs thrive on vague layNatural benzene content of mineral spirits was 3
testimony of co-workers, the lack of recentto10 ppm; nonrepresentative aggressive and
published peer reviewed literature on benzenevigorous simulated cleaning procedures used to
content of these solvents, and the lack of actualobtain worst case scenario];
air or content test results during the(4)McKee, R.H., 2007, Benzene Levels in
Plaintiff’s exposure period to weaveHydrocarbon Solvents - Response to
together a superficially plausible, but flawed, claimAuthor’s Reply J. Occup. Environment.
hoping to get past a Daubert challenge and get toHyg. 4:060-D62. [Benzene levels in modern
a sympathetic jury.solvents have been below .1% for 20 years and
An aggressive three pronged attack can exposebelow 100 ppm for solvents produced by the
Plaintiff’s claims as lacking substance.members of the Hydrocarbon Solvents Panel];
First, establishing the benzene content of the(5)Battelle Columbus Laboratories,
product is in most jurisdictions the“Technical & Economic Feasibility of a
Plaintiff’s burden of proof, and is by andBan on Consumer Products Containing More Than
large a fact issue, not a matter for expert opinion.0.1% or More Benzene” 1978 Report to
Expert opinions must be based on reliable data.United States Consumer Product Safety
Decades old references do not establish benzeneCommission (CPSC -C-78-0091) dated December
content of current or recently used products or22, 1978;
solvents not tested in a comparable time period(6)Hodgkins, Doris, 1980, “Benzene
as the references. Unless Plaintiff can establish byAnalysis of Consumer Products” Report to
direct test results, MSDS’ or otherUnited States Consumer Product Safety
documentation on Defendant’s productsCommission, dated March 13, 1980;
during the alleged exposure period, Plaintiff may(7)Proposed to Withdraw Proposed Ban, 46 FR
not be able to prove with admissible evidence3034-01; 1981 WL 108534(F.R.), January 13, 1981;
that the products at issue contained any(8)Wilson, M.P., Hammond S.K., Nicas, M, and
detectible levels of benzene or any specificHubbard, A.E., 2007 “Worker Exposure to
amount of benzene, that could then be used toVolatile Organic Compounds in the Vehicle Repair
estimate the Plaintiff’s exposure orIndustry” J. Occup. Envir. Hyg. 4:301-310;
dosage.(9)Wong O (1995), Risk of Acute Myeloid
In response to Plaintiff’s expert, MelvynLeukemia and Multiple Myeloma In Workers
Kopstein’s old references in his publishedExposed to Benzene. Occup. Envir. Med.
article (1), a number of arguments can be made.52:380-384;
First, the Consumer Product Safety Commission(10)Wong O, Raabe, G.K. (1998), Acute Myeloid
commissioned two studies resulting in reports in& Monocytic Leukemia and Benzene
1978 and 1980 and found nearly all consumerExposure in Petroleum Distribution Workers in the
products already had less than .1% benzeneUnited Kingdom. Occup. Envir. Med. 55: 360-362;
content and 3 of 5 carburetor cleaners had no(11)Wong O (1998), Re: Benzene and Dose
detectible levels of benzene. (5) (6). These reportsRelated Incidence of Hematologic Neoplasms in
lead the Consumer Product Safety Commission toChina. J. National Cancer Institute 90: 469-670;
withdraw their proposed ban on consumer(12)Rinsky, R.A., et al (2002) Benzene Exposure
products with over 0.1% benzene, as there wasand Hematopoietic Mortality; Long Term
no need for the ban (7). Kopstein’sEpidemiologic Risk Assessment. Am J. Ind. Med. 42:
references were also attacked by the chemical474-480;
industry which provided proof of the low current13.Crump K. (1996) Risk of Benzene - Induced
levels of benzene in their solvents. (2, 4). KopsteinLeukemia Predicted From Pliofilm Cohort Envir.
has testified in litigation that benzene levelsHealth Perspect. 104: 1437-1441;
trended downward after his older references14.Paustenbach D.J., et al (1992) Reevaluation of
were issued. (22, 23).Benzene Exposure for the Pliofilm (rubber
The second prong of the attack should be againstworkers) Cohort (1936-1976) Toxicol Envir. Health
asserted high exposures based on unrealistic36(3):177-231;
usage assumptions, and vague or selective15.Wu, W. (1988) Occupational Cancer
statements of co-workers. High estimatedEpidemiology in the Peoples Republic of China J.
exposures are often based on continuous use ofOccp. Med. 30:968-974;
multiple cans of spray or product per job.16.U.S. Environmental Protection Agency
Another expert frequently used by PlaintiffsIntegrated Risk Information System, Benzene
recently published an article which indirectly(CASRN 71-43-2), 2003;
contradicts many of Plaintiff’s usage17.Travis L.B., et al (1994) Hematopoietic
claims and benzene exposure claims finding totalMalignancies and related disorders among benzene
VOC exposures from use of these products to- exposed workers in China. Leukemia and
be less than OSHA limits (8). Amazingly, this studyLymphoma 14:91-102;
did not address benzene exposures, directly.18.Wong O. (1999) A Critique of the Exposure
However, indirectly, it helps establish low benzeneAssessment in the Epidemiologic Study of
exposures by establishing low total volatile organicBenzene - exposed workers in China conducted
compound (VOC) levels. Detailed discovery ofby the Chinese Academy of Preventive Medicine
purchase and job records can also be used toand U.S. National Cancer Institute. Reg. Tax and
show that the Plaintiff’s actual usage is farPharm. 30:259-267;
less than estimated by Plaintiff’s experts.19.Natelson, E.A. (2007) Benzene Induced Acute
In addition, actual simulated testing done by oneMyeloid Leukemia - A Clinician’s
of Plaintiff’s experts recently showed onlyPerspective, Am. J. Hematol. 00:000-000, 2007
intermittent use. (8) Also, many repair jobsAccepted 2/13/07;
performed by the claimant mechanic may not use20.Zhang L, Eastmond, D.A., Smith M.T., The
these products at all.Nature of Chromosomal Aberrations Detected in
The fourth prong is to attack the low dose, noHumans Exposed to Benzene Crit. Rev. Tox.
threshold claims of Plaintiff’s experts.32(1):1 - 42 (2002);
Most reliable epidemiology studies have concluded21.Escobar, P.A., Smith, M.T., Visishta A, Hubbard
that cumulative exposures of at least 50A. E., Zhang, L. (2007) Leukemia Specific
ppm-years and most likely 200-400 ppm-years isChromosome Damage Detected by COMET with
required to cause AML, the only form offluorescence in situ hybridization (COMET-FISH).
Leukemia that has clearly been linked to benzeneMutagenesis 2007 June 16 [E-publication available
exposures. (9-14). Other studies, such as theonly];
Glass, et al studies of the Australian Petroleum22.Deposition of Melvyn J. Kopstein, 1/5/99 in Jill
Industry Cohort and studies of the ChineseEdwards, et al v. Safety-Kleen Corporation, U.S.
Cohort have been found to be flawed and not aDist. Ct., S.D. Fla. Case,. #97-7180-CV at pp 86-89;
reliable basis for establishing causation. (15-19).23.Deposition of Melvyn J. Kopstein, 10/20/06,
Finally, some experts have put forth an unprovenParker v. The Goodyear Tire & Rubber
hypothesis that certain types of chromosomeCompany, et al, 14th Judicial District Court, Texas,
damages are markers of benzene inducedCause #05-0390-B at pp 69-72, 126.