History’s progress has been fueled by some very questionable chemicals. For instance, fossil fuels and coal are still staples of our power-driven, highly-pollutant society, but that’s an issue for another article. Right now, I’m talking about the stuff science has made that soaks into people’s bones and ruins their lives, all in the name of progress. So many are produced and used each year that safety testing for their human and environmental effects is often inadequate – or missing altogether. Unsurprisingly, some of these chemicals return to cause problems.
Asbestos. Agent Orange. C8. These are some of the most famous offenders in recent history.
Another name in a lot of legal cross-hairs, and the topic today, is the industrial chemical benzene.
What is Benzene?
A natural component of crude oil, benzene is an organic chemical compound, classed as an aromatic hydrocarbon. Colorless and extremely flammable, it’s used as a base ingredient in the synthesis of more complex substances.
Benzene is a key element of all kinds of synthesized products–polystyrene and plastics, nylon, fuel, adhesives, lubricants, dyes, pesticides…it’s employed in many industries that make or use these products. People working in places ranging from military and automotive settings to the printing industry to apparel manufacture work with it in the performance of their duties.
We can say they do this for civic responsibility's sake, though we really mean "so they aren't heavily fined by the government."
The chemical can be absorbed through the skin, though OSHA-compliant workplaces will provide gloves and safety equipment. More often, benzene is applied either to or with heated equipment, which aerosolizes it as a gas. Inhaling those fumes can cause serious damages to the human body.
Benzene has been identified as a human carcinogen. Because of that its non-industrial applications are restricted, but news flash–people are still a major component of industry. As noted above, someone’s in there stirring the vats and pulling the levers, cleaning the machines, and gluing things together. They are exposed to this noxious chemical every day.
To a lesser extent, in fact, we all are. Because benzene is in gasoline (in trace amounts, heavily regulated), it’s aerosolized in car exhaust. It’s also in a variety of consumer products and cigarette smoke, because pretty much everything seems to be present in processed tobacco.
Who Makes Benzene?
Benzene is both naturally occurring and made by the petrochemical industry for export to other manufacturers. It ranks 17th among the top 20 chemicals produced in the United States, according to the federal government. It’s produced by a number of large petrochemical concerns like Dow Chemical, BP, ConocoPhillips–names behind a hundred different component substances you’d probably never think twice about, but are rolled into things you use every day.
I want to note that these groups don’t exclusively make harmful, carcinogenic materials. They’re huge corporations with deep roots and long history. They make a wide array of chemical agents used in all walks of life, often with significant benefits. It’s also worth noting that they probably make every effort to safely transport the dangerous chemicals they do make to their destinations–we can say they do this for civic responsibility’s sake, though we really mean “so they aren’t heavily fined by the government.”
I just don’t actually want to paint them as members of some kind of supervillain cabal here. They’re not COBRA.
Though I admit, this fits together pretty well.
All I’m saying is that between the companies making benzene and the companies using it, there’s a lot of opportunity for industrial exposure, and that can lead to some serious injuries.
What is Benzene Doing to People?
As we mentioned, benzene is carcinogenic. That means that exposure to the chemical significantly increases a person’s risk of developing cancer. It’s not guaranteed to happen, especially if appropriate safety measures are taken, but working around or with benzene can certainly increase the chances of harm considerably:
The medical journal Annual Review of Public Health confirmed that even in small trace amounts, benzene is undisputedly harmful.
Benzene targets the liver, kidneys, lungs, the heart and the brain, and can cause damage at the genetic/chromosomal level. According to the Journal of Environmental Biology, it has been shown to cause cancer in both sexes of multiple species of laboratory animals exposed through various methods.
In terms of those cancers, benzene damages are primarily considered to be blood-related. Experts say that acute myeloid leukemia (AML), aplastic anemia, myelodysplastic syndrome (MDS), acute lymphoblastic leukemia (ALL), and chronic myeloid leukemia (CML) have all been correlated to benzene exposure.
The earliest known case of benzene-related leukemia was reported in 1928. We’re coming up on 90 years of awareness of its potential complications.
A 1948 study conducted by the American Petroleum Institute (API, not exactly the kind of group who is looking to smear the the petrochemical industry) determined that there is no safe quantity of benzene that can be withstood by an average person:
“Inasmuch as the body develops no tolerance to benzene, and as there is a wide variation in individual susceptibility, it is generally considered that the only absolutely safe concentration for benzene is zero.”
The list goes on, and it’s more of the same–scientific consensus that this chemical is bad news.
Why Does This Stuff Even Exist, Then?
Benzene is pretty tightly bound into our current way of life. It’s an important component in industrial settings, which in turn use it to create all kinds of consumer products–gas, textiles, rubber, medications, and dyes to name a few. A non-smoking civilian in otherwise good health who doesn’t hang out all day in auto garages is minimally exposed. Moreover, it’s rapidly metabolized by the liver, so in those small amounts, it’s pretty much in and out. Certainly not ideal, but survivable in the name of modernity and progress–especially with federal watchdogs restricting its use further and further all the time.
It’s what might qualify as a “necessary evil” for the way we currently live. Alternatives are being investigated, and in some situations (gasoline additives, for example) it’s being phased out. There’s no telling if, when or how it might be replaced or eliminated in manufacturing.
How Widespread is the Problem?
Benzene was discovered in the late 19th century, and was first used as–get this–aftershave. It has a vaguely sweet smell in its natural form, so the pleasing odor was considered a plus.
“Ah yes, Eau d’Exxon. Hello, ladies.”
Shortly thereafter, benzene found a more permanent place in degreasers, solvents, rubber cements, and other industrial capacities. Presumably, everyone quietly agreed to pretend they hadn’t been splashing it on their faces a few decades prior.
An EPA survey conducted in 2014 estimated around 5 million people are at increased risk of health problems due to benzene and similar carcinogens.
So it has a long and varied history, and with that history comes injury. Workers often interacted directly with 55-gallon drums of benzene on-site, using it to clean their tools and de-grease their gloves and boots. They never imagined for a moment that the chemical could do them serious harm, aside from as a skin irritant or a mild cough-inducing inhalant. It is unfortunately far worse than that.
An EPA survey conducted in 2014 estimated around 5 million people are at increased risk of health problems due to benzene and similar carcinogens. While most of that number are believed to be industrial workers, there was also stated concern about those who lived in proximity to any of the nation’s 149 petrochemical plants. Given the trace amounts of the substance needed to trigger adverse effects, this is a major concern.
What Is Being Done About It?
Research finds that it takes around 14 years from a chemical’s emergence to the height of public concern about its effects. Dishearteningly, it takes another 14 or 15 years for authorities to do anything about those issues. It takes more time for that “anything” to become meaningful corrective action.
Benzene is well-known to have negative health effects, which means its production and use get regular and serious oversight. The Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), and the National Institute for Occupational Safety and Health (NIOSH) all keep tight rein on benzene, including updates on its risks and the allowable exposure limits workers can face before their employers face sanction for unsafe environments. OSHA instituted policies to this effect in 1987 after a series of studies in Goodyear plants by NIOSH in 1977.
Even with these increased safeguards, there is still considerable risk, and the more the public learns about benzene, the more workers and their families are coming forward to report their own experiences with the terminal injuries caused on the job. Among the top occupations than run serious risk of benzene exposure:
Steel workers
Printers
Firefighters
Refinery workers
Shoe makers
Gas station employees
Laboratory technicians
Analysis of these documents revealed a conspiracy to "manufacture doubt," a term coined during the pursuit of justice against the tobacco industry.
Most of these professionals are employees of agencies that are shipped benzene from one of the petrochemical companies, either for use in its own industry or for resale.
Investigations conducted in the pursuit of benzene injury claims have unearthed approximately 20,000 pages of internal memoranda and emails between the major petrochemical corporations outlining a strategy of misdirection and denial about benzene’s harmful effects. Analysis of these documents revealed a conspiracy to “manufacture doubt,” a term coined during the pursuit of justice against the tobacco industry. Industry leaders spent more than $36 million on research to introduce deniability to the mounting evidence of benzene’s harmful effects.
The Anatomy of a Benzene Claim: Personal Injury
Claims involving occupational exposure or harm done through internalizing a product are called toxic tort claims. Note that when I say “internalizing,” I mean something that is meant to be internalized. Negative side effects from ingesting medication? Toxic tort. Swallowing a Lego with uncomfortable results? Not a toxic tort.
Nice try. Still not a toxic tort.
Key to a toxic tort claim is proving negligence–mainly, that an employer or manufacturer did not exercise adequate care in the creation or sale of a product that can cause toxic harm to that product’s user. This usually moves along one of a few vectors:
The manufacturer created a harmful product and released it ignorant of its potential for injury, or
The manufacturer was plenty aware that the product could cause harm, but chose to develop and market it anyway.
Given that there’s significant evidence of benzene’s capacity to cause harm AND of the petrochemical industry’s attempts to cover that up, it looks like we’re choosing Door #2.
In order to build an effective negligence case, we’ll need to prove the four main elements of a claim:
Duty: The defendant, in this case the petrochemical industry, has an obligation not to do harm to customers and end-users. This is an implied contract between parties at the time of a commercial exchange.
Breach: The defendant breached its duty not to harm the plaintiff. Refining and shipping benzene, continuing to turn the wheels in a major industry, all the while knowingly suppressing data about the carcinogenic nature of the substance–for decades, mind you–would definitely constitute a breach of duty.
In case there is any doubt as to the truth of those coverup allegations, here is a resource with twelve of the most damning memos uncovered so far. In those papers, executives and corporate attorneys discuss strategies for downplaying benzene’s impact, as well as how to discredit experts and witnesses, and what “results” they would like their own research to reflect.
Causation: The defendant’s breach of duty is the proximate, or direct, cause of the plaintiff’s damages. A preliminary test of causation can be conducted by using a “But for” statement. This is a statement attempting to link cause with effect:
But for the toxicity of benzene, and continued exposure to this chemical in an industrial workplace, the plaintiff would not have developed leukemia.
A grim example, but one of the most common benzene claims. Many cancer lawsuits have been filed not only against the direct employers of injured workers, but also against the manufacturers that supplied them with benzene. These workers were inadequately prepared for the toxic nature of the chemical; even when issued hazardous-materials gear, many were not suitably protected against its aerosolized forms, and certainly weren’t warned they could develop cancer from handling the substance.
Damages: The plaintiff must have suffered demonstrable damages. These cases involve significant and traumatic injury, in the form of major cancers. Plaintiffs could argue multiple types of damages were suffered–physical, mental, and emotional suffering, plus tremendous financial setbacks from treatment.
Some cases involve what it called gross negligence. This means that a defendant exercised such outrageously negligent behavior that above and beyond compensating a plaintiff for lost wages, hospital bills, and pain/suffering, the defendant should pay an additional sum as punishment for their actions. These are called punitive damages.
If the petrochemical industry can be successfully identified as the party liable for a plaintiff’s cancer (in the negligent supply of benzene and inadequate advisory about its risks), there may be grounds for alleging gross negligence. Reinforcing this pursuit of punitive damages is the documented history of understatement and denial from these manufacturers. The subpoenaed files, now publicly available, indicate that the companies acted willfully and with foreknowledge of risk, putting users at risk in industrial workplaces.
Potential Defenses to a Benzene Claim
It should never be taken for granted that a multibillion-dollar conglomerate will just roll over and show you its belly, no matter how damning or plentiful the evidence against it.
We’re talking about the union of Dow Chemical, British Petroleum, ExxonMobil, Chevron, ConocoPhillips, and half a dozen others. They probably have a nickname like “Big Chemical.” Collectively, they form the lobby group called the American Petroleum Institute. Remember them? They snuck into the narrative earlier when they were forced to admit in 1948 that no amount of benzene exposure is safe. That must have felt like getting a tooth pulled for their spokespeople.
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Naturally, organizations this powerful have a strong legal network. Some of the documents obtained by plaintiffs’ attorneys are internal memos and emails between lawyers outlining defense strategies, some of which we’ll discuss here:
Sophisticated User: The idea here would be to shift the entirety of the blame to the customer that bought the benzene–the company whose employees directly used the product during the course of business. If said company is aware of the risks of benzene and has its own precautionary measures and safety materials related to exposure, the original manufacturer can allege that it was clearly aware of the dangers, and therefore the defendant had no duty to issue further warning. If successful, this would put a large hole in a “failure to warn” claim.
Bulk Seller: This is another one built around distancing the original manufacturer from liability. If a manufacturer sells benzene in bulk to a distributor who then repackages the product and sells it to end-users, and if the manufacturer can prove that either a) it gave adequate warning to the bulk buyer or b) the bulk buyer demonstrated sufficient knowledge of the risks and dangers of the product, the manufacturer can then try to absolve itself of blame if the ultimate user suffers injury.
Superseding Cause: If it can be proven that a buyer of a benzene-inclusive product knows about the risks inherent to the product but chooses to use it anyway, their foreknowledge and conscious negligence will legally be considered the proximate cause, not the manufacturer’s initial sale of the benzene product.
Insufficient Exposure: If a defense attorney can convince a jury that the plaintiff wasn’t around benzene long enough, at least in a setting that can be tied to the defendants, their liability could be negated. For example, if someone only worked in a benzene-inclusive factory for three weeks, and had been out of the industrial sector for seven years before developing leukemia, it would be hard for them to argue causation with a time lapse that long.
Lack of Scientific Evidence: Not every condition is authoritatively linked to benzene exposure. Multiple myeloma is an example; only a few tenuous studies have looked into the link between benzene and this disease, and their results are not concrete. The defendant could move that the study results are inadmissible because they are inconclusive.
Statute of Limitations: By 2016, this has become a potent defense for the petrochemical industry. A Statute of Limitations creates a limited time frame in which a plaintiff may file legal action against a defendant.
By way of example, say an auto worker died of leukemia in 1992, but before he passed his doctor informed his family that benzene was the cause of the disease. The family doesn’t pursue a claim until 2002, when they learn which manufacturer supplied benzene to the man’s employer. Even though the manufacturer may be liable, due to state law enough time has passed without a filed action that the claim is now invalid.
Different states have different Statutes of Limitations for different crimes. Personal injury and wrongful death claims in Texas have a period of two years in which to pursue damages; after that time, a plaintiff may be without legal recourse.
As you can see, most of these defenses involve “passing the buck,” which is often key in denying financial liability. These companies aren’t necessarily saying they’re blameless, they’re just saying they aren’t the proximate causes of the injury, and therefore they aren’t the ones who should have to pay.
What All This Means
For those of you who have lost someone to circumstances like I have described, please accept my heartfelt condolences. If you’re reading this and you yourself have developed leukemia after long years of industrial work, I want to a) tell you that I’m grateful for your labors and b) express my sympathies that you were thus rewarded for your efforts.
These companies aren't necessarily saying they're blameless, they're just saying they aren't the proximate causes of the injury, and therefore they aren't the ones who should have to pay.
It’s a harsh world, and people can get handed a raw deal by the companies who employ them. It’s generally not the people you see every day; the factory floor manager isn’t your enemy. He has a manager, though, and she has a manager, who has another manager, recursively up the chain, until we reach the people who protect the company’s profitability. Those are the ones emailing each about how best to deny their blame when workers get cancer. They can’t be allowed to do that.
You wouldn’t think such a lesson would be necessary; in a better world, no company would put fiscal assets over human ones. Unfortunately, we can’t rely on corporations to have their priorities in order like that, so we have to punish them for misbehaving. The way to get positive change from companies guilty of wrongdoing is to hit the bottom line they so zealously protect. When it is too costly to behave unethically, they’re more likely to act right.
When a plaintiff seeks damages, it’s in his or her best interests to hire a knowledgeable and tough attorney, because big industries don’t go down without a fight. A good plaintiff’s attorney will lift the curtain on any company duplicity–and API has already proven willing to protect their interests with obfuscation and non-compliance.
A true personal injury advocate won’t put up with these companies’ efforts to weasel out of their obligation to the public.
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