The Agency for Toxic Substances and Disease Registry (ATSDR) issued a report on benzene a few months ago, and it has already begun to have an effect on the litigation.

ATSDR is an agency of HHS and is directed by congressional mandate to perform specific functions concerning the potential effect on public health of hazardous substances in the environment. These functions include public health assessments of waste sites, health consultations concerning specific hazardous substances, health surveillance and registries, response to emergency releases of hazardous substances, applied research in support of public health assessments, information development and dissemination, and education and training concerning hazardous substances.

A Toxicological Profile for Benzene, Draft for Public Comment was released in August 2005, and finalized in August, 2007. An ATSDR toxicological profile characterizes the toxicological and adverse health effects information for the hazardous substance at issue. They are peer-reviewed profiles, and each identifies and reviews the key literature that describes a hazardous substance’s toxicological properties. Each profile is supposed to include the following:

(A) summary and interpretation of available toxicological information and epidemiological evaluations on a hazardous substance to ascertain the levels of significant human exposure for the substance and the associated acute and chronic health effects;

(B) determination whether adequate information on the health effects of each substance is available or in the process of development to determine levels of exposure that present a significant risk to human health; and

(C) identification of testing needed to identify the types or levels of exposure that may present significant risk of adverse health effects in humans.

The report notes that benzene, a colorless liquid with a sweet odor, evaporates into air very quickly and dissolves slightly in water. Benzene is found in air, water, and soil. Benzene comes from both industrial and natural sources. Benzene was first discovered and isolated from coal tar in the 1800’s. Today, benzene is made mostly from petroleum. Because of its wide use, benzene ranks in the top 20 in production volume for chemicals produced in the United States. Various industries use benzene to make other chemicals, used in plastics, resins, synthetic fibers. Benzene is also used in the manufacturing of some types of rubbers, lubricants, dyes, detergents, drugs, and pesticides. Natural sources of benzene include gas emissions from volcanoes and forest fires. Benzene is also present in crude oil and gasoline and cigarette smoke.

Everyone is exposed to a small amount of benzene every day, in the outdoor environment, in the workplace, and in the home. Exposure of the general population to benzene mainly occurs through breathing air that contains benzene. The major sources of benzene exposure are tobacco smoke, automobile service stations, exhaust from motor vehicles, and industrial emissions. Vapors (or gases) from products that contain benzene, such as glues, paints, furniture wax, and detergents, can also be a potential source of exposure. Auto exhaust and industrial emissions account for about 20% of the total national exposure to benzene. About half of the exposure to benzene in the United States results from smoking tobacco, according to the report. People living in cities or industrial areas are generally exposed to higher levels of benzene in air than those living in rural areas. Benzene levels in the home are usually higher than outdoor levels. For most people, the level of exposure to benzene through food, beverages, or drinking water is not as high as through air. Drinking water typically contains less than 0.1 ppb benzene. Benzene has been detected in some bottled water, liquor, and food.

Individuals employed in industries that make or use benzene may be exposed to higher levels of benzene. These industries include benzene production (petrochemicals, petroleum refining, and coke and coal chemical manufacturing), rubber tire manufacturing, and storage or transport of benzene and petroleum products containing benzene.

In an unpublished decision, the 5th Circuit relied on the ATSDR report to reverse the dismissal of a toxic tort case involving benzene. See Leblanc v. Chevron USA Inc., 2008 WL 1805448 (5th Cir. April 22, 2008).

Plaintiff alleged that after working as a tanker truck driver for over 30 years transporting products containing benzene, he was diagnosed with myelofibrosis with myeloid metaplasia-MMM, a rare disease. They tendered an expert who supported their claim that the exposure to benzene caused plaintiff’s disease. Defendants challenged the expert testimony as unreliable under Daubert. The trial court excluded the testimony and, as is typically the case, because plaintiff had no other evidence on the critical causation issue, the case was dismissed.

At the time the district court issued its order, the ATSDR had issued the draft report on benzene. Because the report was still in draft form and the time for notice and comment had not expired when the district court issued its ruling, the trial court declined to consider it. During the pendency of the appeal, however, the draft received final approval. The Fifth Circuit noted that the ATSDR report on benzene was authored by a number of experts, was reviewed internally by the ATSDR, and peer reviewed by additional experts who collectively have knowledge of benzene’s physical and chemical properties, toxicokinetics, key health end points, mechanisms of action, human and animal exposure, and quantification of risk to humans.

Moreover, in the report, the ATSDR concluded that benzene causes a life-threatening disorder called aplastic anemia in humans and animals. In describing a case report of a gasoline station attendant who had been exposed to benzene by inhalation, and probably also through dermal contact, the report calls myelofibrosis a form of aplastic anemia.

Because of this, and the “number and quality of the experts” who participated in the production of the final version of the ATSDR report, the 5th Circuit concluded that this report deserved the careful consideration of the district court before reaching a final conclusion on the reliability of plaintiffs’ expert testimony.

As readers of MassTortDefense interested in toxic torts will know, there is significant litigation surrounding benzene exposures. Some jurisdictions have consolidated cases for pre-trial coordination. E.g., In re: Benzene Litigation, No. 06C-BEN-1 (Del. Super. Ct., New Castle Cty.).

A week ago, a San Francisco jury reportedly awarded $8 million to a benzene plaintiff who claimed that his 17-year employment at SeaRiver Maritime Inc. exposed him to benzene, causing his kidney cancer. See Shelby v. Seariver Maritime Inc., f/k/a Exxon Shipping Co., No. CJC-06-449350 (Calif. Super. Ct., San Francisco Cty.). SeaRiver was the lone remaining defendant at the time of the trial.

Last month, several plaintiffs filed suit contending that they were wrongfully exposed to benzene while working at a Goodyear Tire Plant. Hauptmeier, et al., v. Barton Solvents Inc., et al., No. 08-187 (D. Neb.).

The litigation raises multiple important issues, including product identification, general and specific causation, and important procedural issues as well. In Anderson, et al. v. Crown Central LLC, et al., No. 08-0033 (Texas), plaintiffs are appealing the intermediate appellate court’s severance of their claims, Crown Central LLC v. Anderson, 239 S.W.3d 385 (Tex.App.-Beaumont,2007). Plaintiffs, as is common, prefer consolidated trials in their hand picked venue, with trial plans in which the best case (strongest plaintiff case) elevates the weaker plaintiff claims, despite the fact that often they cannot show their claims arose from the same transactions or occurrences.