Copyright 1999

Vol 8, No. 4 Mealey's Emerging Toxic Torts 14
May 21, 1999
Chemicals / Fumes

LEUKEMIA DECEDENT'S ESTATE, BAYER CORP. REACH SETTLEMENT IN BENZENE EXPOSURE CASE

Copyright 1999 Mealey Publications, Inc.

West Virginia -Case name and number: Donna Elson v. Bayer Corp., et al., No. 96-C-197M

Plaintiff(s)/Decedent(s): Donna Elson, individually and as executrix of the Estate of Walter Elson
Settlement(s): confidential amount
Date: May 7, 1999
Court: W.Va. Cir., Marshall Co.
Judge: John T. Madden
Defendant(s): Bayer Corp.
Claim: acute myelomonocytic leukemia resulting from benzene exposure

Other Cases Safety-Kleen Solvent Chemical Operator Benzene Exposure Benzene "Fingerprint" Benzene Case Settles

Background: Walter Elson was employed by Bayer and its predecessors from 1969 to 1994 as a chemical operator at Bayer's Marshall County facility. In the course of his work he was exposed, through inhalation and dermal absorption, to benzene, plaintiff alleged. He developed leukemia in December 1990 and died from resulting complications in October 1994.

Donna Elson, individually and as executrix of Walter's estate, sued Bayer under the intentional tort exception to the West Virginia Workers' Compensation Act, West Virginia Code Sec tion 23-4-2. Plaintiff alleged Bayer required the decedent to perform his job duties in areas where he would be exposed to impermissibly high levels of benzene, benzene derivatives and benzene-containing products without warning him of the hazards and without providing adequate safety equipment, according to a source.

Donna Elson also sued manufacturers and suppliers of benzene and benzene products under strict product liability and negligence theories. Those claims are pending against nine defendants and no trial date has been set, a source said.

Defense: Bayer contended plaintiff could not establish decedent was exposed to benzene in his job classifications and could not prove the five elements of the Section 23-4-2 cause of action, according to a source. Other: No experts were disclosed. Special damages -- including lost wages, lost household services, medical and funeral expenses -- which would have been placed before the jury ranged from $1,055,079.59 to $1,291,400.50, according to a source.

Settlement with Bayer was finalized shortly before a hearing on plaintiff's motion to compel the production of various documents from Bayer, a source said.

Defense counsel confirmed the case against Bayer had settled but could not comment on the case, saying it was governed by a confidentiality order.

This is the same facility at issue in a leukemia/benzene exposure case that settled in October (Lavender v. Bayer; See 11/6/98, Page 17). A plaintiff source said the case law in Lavender, in which the West Virginia Supreme Court of Appeals declined to hear Bayer's appeal of the exclusion of several defense experts' testimony regarding chromosomal changes associated with benzene exposure and workers' cumulative benzene exposures, probably helped bring about a settlement in this case.

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Plaintiff Attorney(s): R. Dean Hartley and James M. O'Brien of Hartley & O'Brien of Wheeling, W.Va.

Defense Attorney(s): Larry W. Blalock, Dennis C. Sauter and Lynn Oliver Frye of Jackson & Kelly of New Martinsville, W.Va., and Joe G. Hollingsworth of Spriggs & Hollingsworth of Washington, D.C.