Copyright 1999

Vol 7, No. 15 Mealey's Emerging Toxic Torts 17
November 6, 1998
Chemicals/Fumes

LEUKEMIA DEATH ACTION INVOLVING BENZENE EXPOSURE SETTLES IN WEST VIRGINIA

Copyright 1998 Mealey Publications, Inc.

MOUNDSVILLE, W.Va. -- A lawsuit for the leukemia death of a man allegedly exposed to benzene at a Bayer Corp. facility settled in October, several days before trial was scheduled to begin, a source told Mealey Publications (Kathleen Lavender, et al. v. Bayer Corp., et al., No. 93-C-226K, W.Va. Cir., Marshall Co.; See 6/15/98, Page 9).

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A source said the action settled for a confidential amount on Oct. 12.

Kathleen Lavender sued Bayer for the death of her husband, John, an employee of an independent electrical contractor. Lavender alleged John died from acute monocytic leukemia (AML) resulting from benzene exposure at Bayer's job site in New Martinsville, W.Va.

In May, Marshall County Circuit Court Judge Mark Karl excluded under Daubert the testimony of defense experts Harvey M. Golomb, M.D., and Richard Irons, Ph.D. The proffered testimony sought to demonstrate that Lavender's chromosomal changes did not match the abnormalities of the fifth or seventh chromosomes necessary to establish causal connection with benzene exposure. The court found no scientific link or "good grounds" for the experts' opinions.

The court had earlier granted plaintiff's motion to exclude the testimony of defense industrial hygienist John Spencer under Daubert, finding his methodology flawed and his estimates of decedent's cumulative benzene exposure were "guesstimates" because they were based on air monitoring damage that did not simulate the types of exposure experienced by Lavender.

On Oct. 1, the West Virginia Supreme Court of Appeals agreed to hear two petitions for writ of prohibition filed by Bayer with respect to Judge Karl's rulings on the testimony of Spencer, Golomb and Irons. However, Lavender moved for reconsideration and, several days later, the high court reversed itself and declined to hear Bayer's appeal.

Neurological Complaints, Air Monitoring

Prior to the case settling, Judge Karl on Sept. 28 denied Bayer's motion in limine to exclude plaintiff's anticipated expert testimony by Dr. Elaine Panitz concerning alleged neurological complaints related to benzene exposure.

In a separate order, the court denied Bayer's motion in limine to exclude testimony based upon an allegation that the company destroyed or failed to maintain or produce personal or area air monitoring data.

(Text of Opinions in Section F. Mealey's Document #15-981106-108.)

In its findings of fact and conclusions of law on the issue of neurological symptoms, the court said Bayer has no substantial evidence, including comparable monitoring data, to dispute that the decedent smelled benzene on a daily basis while he worked at the facility. Although Bayer asserts that Lavender was exposed to various substances at the New Martinsville facility, any of which could have been the cause of his neurological symptoms, the court cited evidence that these substances smell differently, permitting discrimination of each odor.

Benzene has a "sweet aromatic" smell, and Lavender and his co-workers testified in depositions that they developed neurological symptoms after smelling a sweet, aromatic odor, the court said. "Assuming that Mr. Lavender was exposed to a variety of compounds, including benzene, MNB, DNT [dinitrotoluene], and aniline, all at the same time or even as separate individual exposures, benzene is the only one of these four substances that would have caused Mr. Lavender's neurological symptoms, since benzene is the most volatile," the court said.

The court said Panitz's opinion that Lavender's leukemia was caused by benzene exposure and her underlying methodology, in which she took into account neurological symptoms to quantify decedent's exposure, are sound, scientific and reliable.

In its findings of fact and conclusions of law on the issue of personal or area air monitoring data, the court said Bayer never performed personal air monitoring on Lavender or any employees of independent contractors at the facility. Furthermore, personal air monitoring of Bayer employees never measured the benzene content in the atmosphere on an eight-hour basis around the waste water trench were Lavender allegedly received most of his exposure, the judge said.

The court found a jury could reasonably conclude from the evidence that Bayer either failed to maintain records required by the Occupational Safety & Health Administration benzene standard, or that that Bayer failed to perform required air monitoring and failed to notify Lavender of exposure levels to which he was subjected.

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Lavender is represented by R. Dean Hartley and James M. O'Brien of Hartley & O'Brien of Wheeling, W.Va., and Scott Segal of Charleston, W.Va.

Bayer is represented by Joe G. Hollingsworth, Bruce J. Berger and Stephen E. Klein of Spriggs & Hollingsworth of Washington, D.C., and Larry Blalock, Dennis C. Sauter and Lynn Oliver Frye of Jackson & Kelly of New Martinsville, W.Va.