After a nine-day trial, a state court jury in Stamford, Connecticut, returned a unanimous defense verdict in a case where the plaintiff alleged exposure to benzene in gasoline caused leukemia. The verdict shows how defendants in benzene and other alleged toxic exposure/product liability cases can effectively leverage scientific evidence to refute causation. It also demonstrates that plaintiff product defect and causation theories can be undermined by emphasizing that an exposure attributed to the product is in fact ubiquitous.

Scientific Evidence Debunks Plaintiff Causation and Product Defect Theories

The plaintiff, representing the estate of her deceased husband, alleged decedent developed acute myeloid leukemia (“AML”) and died at age 67 in 2018. Plaintiff alleged decedent owned and operated a gas station 1972-1990, and as a result was exposed to benzene in the gasoline that caused his AML. Plaintiff sued the manufacturer/supplier of the gasoline, asserting causes of action for product liability based on defective design and failure to warn, and loss of consortium.

Defense experts in epidemiology, toxicology, and industrial hygiene collectively focused on lack of causation and the safety of gasoline. While benzene may be a carcinogen and/or capable of causing AML at certain high doses, it does not follow that substances like gasoline that potentially contain benzene as a small percentage are also capable of causing AML. “Dose makes the poison” is a fundamental concept in toxicology. Substances capable of causing illness at very high levels are not necessarily capable of doing so at lower concentrations and doses — and substances considered “safe” (e.g., water) become toxic at higher concentrations and doses. Indeed, the literature on the whole does not show that gasoline and the low-level benzene exposures that may result from using gasoline are capable of causing AML.

Further, simply because gasoline contains benzene and its use may result in exposure to benzene does not make it a defective product. Gasoline and low-level benzene exposure have not been found capable of causing cancer. And all persons in the United States are exposed to benzene on a constant and regular basis (“ambient exposure”), at levels comparable to what may result from using gasoline. Benzene can be found in the air, and in commonplace items such as soda and bananas. Therefore, gasoline is not exceptional for its benzene content, and it is logically incoherent and scientifically impossible to ascribe an individual’s AML to benzene in gasoline. And at closing, the defense emphasized that the decedent’s benzene exposures from gasoline were comparable to those he experienced everyday simply by existing. The jury was not persuaded by plaintiff’s rebuttal closing, in which counsel attempted to argue that ambient exposures are in fact lower.

Plaintiff’s counsel asked the jury to award $40 million ($30 million in noneconomic damages for the decedent, $10 million for plaintiff’s loss of consortium). The jury awarded nothing, finding no product defect or failure to warn, and finding every causation question in defendant’s favor. (It should be noted, however, that plaintiff has now moved to set aside the verdict, so further proceedings are likely.)

Conclusion

This defense verdict demonstrates that plaintiff causation and product defect theories in toxic exposure/product liability claims for benzene exposure are refutable. Effective advocacy and calling skilled experts can serve to educate the jury on otherwise complex and highly technical scientific issues. For example, the experts in this case explained that, while benzene may be a carcinogen at very high levels, scientific evidence does not show benzene at low levels and gasoline have the same properties. The defense also showed benzene is ubiquitous, and the exposures decedent may have experienced from using gasoline were comparable to his ambient benzene exposures. Through these means and similar strategies, plaintiff product defect and causation theories can be effectively undermined in benzene exposure and other product liability/toxic exposure lawsuits.

Our Mass Torts and Industry-Wide Litigation attorneys are following this case and other important litigation matters throughout New York and the nation. Should you have questions on this or related matters, please contact Abbie Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeach.com; Daniel R. Strecker at (212) 912-3513 and dstrecker@harrisbeach.com; Alessandra G. Ash at (212) 912-3518 and aash@harrisbeach.com; or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

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