Lawrence R. Cohan, Esquire

What Is Benzene?

Benzene is a colorless, sweet smelling and flammable chemical produced from crude oil. Historically, benzene was used as a solvent in its pure form, but such use has dropped off steadily during the past several decades. Today, benzene is used primarily as a “feed stock” in the production of motor fuels, plastics, rubber, resins, paints, petroleum solvents, gasoline, synthetics and other industrial products.

Who Is Exposed to Benzene?

 Like many other chemicals, everyone is exposed to some low level of benzene. Benzene is found in the ambient air, and sometimes in drinking water and food products. However, the exposures which lead to illness, and ultimately litigation, involve individuals with occupational exposures to benzene, and sometimes those living near facilities where benzene is used. The occupations typically associated with benzene exposure include refinery workers, leather workers, aircraft and automobile mechanics, petrochemical workers, and people in industries using solvents and printers. The vast majority of exposures come from inhalation, although exposure through skin can also occur. While occasional acute exposures arise, most illness and litigation develop from long-term chronic exposure.

The Disease Process

 Benzene is fully recognized as a human carcinogen. It is associated with all types of leukemia, myelodysplastic syndrome, and aplastic anemia, as well as other diseases, including non Hodgkin’s lymphoma, Hodgkin’s lymphoma, multiple myeloma and myeloproliferative disorders.

The dangers of benzene were recognized as early as 1897, and by the 1940s the risk of exposure was being researched and studied in great detail. A considerable number of human studies provide strong evidence linking benzene and cancer. Early research confirmed increased risks of leukemia, chiefly acute myeloid leukemia (AML), reported among workers with high levels of benzene exposure in chemical, shoemaking and oil refining industries. More recently, studies have focused on workers with relatively lower exposure levels. One such significant study was conducted by the National Cancer Institute in collaboration with the Chinese Academy of Preventive Medicine. Investigators followed 30,000 workers exposed to benzene, and confirmed an increased risk of leukemia in those exposed to as little as 10 parts per million (ppm) of benzene.

Various governmental agencies and expert organizations have also considered

the impact of benzene. The National Toxicology Program (NTP) evaluates all chemical exposures that may be carcinogenic. Using their comprehensive program of evaluating studies and epidemiology of all types, the NTP has classified benzene as a “known carcinogen.”

The International Agency for Research on Cancer (IARC) rates the risks of carcinogenicity in categories of 1 to 4, 1 being the most carcinogenic. The IARC rated benzene as “known to be carcinogenic to humans,” falling in the “1” category. Similarly, the Environmental Protect the rights of the unfortunate victim Protection Agency (EPA) classifies benzene as a “known carcinogen,” and ranks it as a Group A carcinogen, the most significantly

correlated group.

 There are short-term effects from benzene, including drowsiness, dizziness, headaches, and/or unconsciousness. These exposures can also lead to convulsions, rapid heart rate and in extreme cases, death. Long-term exposures interfere with normal blood cell production, and may result in anemia, low white blood cell counts, and a threat to life. There is some evidence that benzene may also be harmful to reproductive organs.

Governmental Regulation

 Governmental agencies, including EPA and OSHA, strictly limit the amount of benzene that can be found in the ambient air, as well as the benzene content of various products. State regulations were first promulgated in the 1940s, and in 1971 OSHA adopted a 10 ppm standard. Today, the OSHA standard has been lowered to one ppm. This means that the average airborne concentration of benzene may not exceed one ppm over an eight-hour workday (see 29 CFR §1910-1028 (2005)). The National Institute for Occupational Safety and Health (NIOSH) recently recommended reducing the standard to 0.1 ppm, which can be found in its Pocket Guide to Chemical Hazards

(2005).

 In 1983, OSHA first published its hazard communication standard, requiring that Material Safety Data Sheets (MSDSs) be supplied to all consumers listing carcinogens, including benzene, as an ingredient if its concentration is 0.1 percent by weight. This new standard had the effect of dramatically reducing the benzene content of many products.

Theories and Defenses

 Products which contain benzene unnecessarily are defective per se. If the product contains benzene without a proper warning, it is also defective and unreasonably dangerous. All warnings and MSDSs need to comply with OSHA regulations. The duty of a manufacturer or landowner to visitors, employees or subcontractors provides the basis for many claims. Similarly, when in an industrial setting, benzene is permitted to permeate the air, soil or groundwater, individuals living or working nearby may have claims. The Federal Employers Liability Act (FELA) and the Jones Act, for railroad workers and seaman, respectively, provide the basis for the claims against those workers’ employers.

 Defenses raised to these claims are typically based upon causation and exposure. Any serious condition other than AML leaves open the possibility that defense counsel can argue that literature does not support general causation. Daubert-type challenges are virtually always present in benzene cases.

 The other commonly raised defense is that of the “confounding” variable. Specifically, other types of chemical exposures, family history or the plaintiff’s disease being “idiopathic,” are offered as the causes. Of course, as in any toxic tort case, the defense is always free to argue, and often does, that the plaintiff was not exposed to their specific product in sufficient quantity to cause disease.

Getting Involved in Benzene Litigation

 Benzene claims on behalf of individuals and exposed populations have been pursued for decades. Benzene in underground water, for example, led to litigation which was the basis of the film “A Civil Action.” Individual workers with leukemia from around the country file individual lawsuits regularly. The American Association for Justice sponsors a Benzene Litigation Group where lawyers nationwide can collaborate about the latest developments in benzene science and medicine.

 Clients who develop the conditions described above should be interviewed to determine whether or not their work history may have included benzene exposure. If the exposure and disease fit within the parameters of the medical and scientific literature, the next step must be to determine if the benzene manufacturer and/or supplier can be identified. Often times, the specific source of the benzene is unknown or unknowable. Other times, there are so many different exposures to benzene that quantifying each exposure becomes nearly impossible, or establishing causation as to exposure to an individual defendant’s product becomes exceedingly difficult.

 Benzene cases will require the retention of experts in multiple disciplines, including engineers, industrial hygienists, toxicologists, epidemiologists, hematologists and oncologists. This litigation is complex, time consuming and expensive, and should be pursued only if all of the above described elements are present, and only if counsel has the requisite experience and capacity to litigate a complex toxic tort, benzene exposure case.