LEUKEMIA, SOLVENTS AND GLUES SETTLEMENT CONFERENCE BRIEF

By Amanda Hawes and Richard Alexander, Alexander Hawes, LLP

The following is a grossly abridged presentation of the Plaintiffs' Settlement Conference Statement in a case that was prosecuted by Alexander Hawes, LLP which settled under a cloak of confidentiality. The names of the plaintiffs and defendants have been changed, as well as any reference to the court where this action was filed and all reported locations are fictional. The names of the products have been altered as well as the chemical constituents, but the theory of recovery and general facts are illustrative of solvent induced leukemia deaths.

INTRODUCTION

Steve Scott died in August 1993 of atypical acute myelogenous leukemia ("AML"). He was 29 years old and left a wife and three children. His leukemia was caused by heavy and chronic exposure to the solvents in the contact adhesives and thinners made and supplied to the Atlas Door (AD) by Mannheim, Inc. ("Mannheim"). Mannheim's motion for summary judgment on causation, product identification and warnings was denied.

Steve is survived by his wife, Elizabeth, and their children (twins Steve, Jr. and Maureen, age 3, Matthew age 5, and Christopher age 6.

Plaintiffs recently settled with Mannheim's co-defendants Caring Home Products, manufacturers of the "Glue-All" brand adhesives. While there is witness testimony that Glue-All products were used at Atlas Door, there are no records on the nature or extent of the products sold to or used during Steve's tenure but witnesses advise it was minimal. Glue-All brand adhesives typically consist of a mixture of industrial solvents.

Between 1984 and 1988 sales records confirm that Mannheim supplied Atlas Door with no less than 48 fifty-five gallon drums of "Supermann 8711" solvent-based adhesive in 1984; 41 drums of this product in 1985; 36 drums in 1986; 37 drums In 1987; and 26 drums in 1988 -- for a total of 10,340 gallons of this particular solvent-based adhesive over a five-year interval, or roughly 40 gallons a week which was used assembly-line fashion to produce cabinet doors.

The application of Mannheim's adhesives was accomplished by brush. Although Steve worked on mitered doors throughout his work at AD his most significant exposure to the solvents in the adhesives used to make these doors was between June 1984 to June 1985 -- before Proposition 51.

Mannheim claims its Supermann adhesive products are free from risk of long term harm and could not possibly have caused Steve's leukemia. It argues in the alternative that it provided fully adequate warnings and that AD 's and Steve's handling of Mannheim's adhesives makes the employer the supervening legal cause of Steve's leukemia or creates enough employer and employee negligence to dwarf Mannheim's role. These arguments failed at defendants' motion for summary judgment and they will not impress a trier of fact for several reasons.

First, Mannheim product literature describes Supermann 8711 as non-toxic when it knew but did not disclose that the principal solvent in Supermann 8711 contains as a preservative which is a Prop 65 carcinogen.

Second, Mannheim's product literature failed to disclose that the main solvent in Supermann 240 contained a significant amount of a known leukemogen and a cause of acute myelogenous leukemia.

Third, far from being a sophisticated intermediary, Steve's employer accepted at face value Mannheim's representation that Supermann 8711 and Supermann 240 were not toxic or dangerous.

Fourth, Mannheim's representatives had ample opportunity to observe how AD used Mannheim's adhesive products and to intervene if they found any product misuse. (The contact adhesives at issue were made at Mannheim's adhesives manufacturing plant in Los Angeles, CA and Mannheim regularly sent its salesmen to the Atlas Door Company's nearby facilities to ensure Atlas kept buying Mannheim brand adhesives, which the Atlas obviously did.

STEVE SCOTT

Steve was every mother's choice for a son-in-law: he worked from the day he graduated high school; earned a supervisory position at the Atlas Door Company; did not drink, smoke, or use drugs; was active in his church; and was a proud father who loved his family, spent time with them and enjoyed being a dad. The jury will hear about these stellar qualities and these undisputed facts about Steve's sudden demise:

After Steve had minor surgery, Elizabeth thought it odd he was still feverish and fatigued several weeks later. In five years of marriage Steve had never been sick, never missed work, and never failed to give 100% of himself to his family.

After some routine tests, a terrible picture emerged: biphenotypic acute leukemia, a fast-moving leukemia involving both myeloid and lymphocytic cell lines. Steve deteriorated rapidly, and died June 21, 1993. His death certificate reports his cause of death as acute myelogenous leukemia.

LIABILITY

A. Steve Had Heavy Exposure to the Leukemogens in Mannheim's Products.

In Steve's first year at Atlas he did entry-level work: 1) applying solvent-based contact adhesives on the frames of hollow-core doors in preparation for adding laminate covers; (2) repairing the glue on each door to which the laminate did not fully adhere; and (3) touching-up and repairing damaged doors.

Even after a "promotion" in the adjacent framing department, Steve worked in the door fabrication area on a regular basis. He routinely delivered door frames to the area for gluing, turned over the glued laminates to facilitate the application of cement on their reverse side and glued doors himself when production demands were high. These activities continued through his employment.

Even when he became a manager, Steve was a hands-on supervisor who did whatever production job was needed. Further, Steve worked in shorts and tee-shirts except in cold weather, unwittingly and greatly increasing his exposure to solvent vapor and glue.

Skin contact with these contact adhesives guaranteed dermal absorption of their solvent constituents. Exposure from using contact adhesives in repair work left a tough-to-remove residue on the skin. This is direct evidence of skin absorption of the solvents that had not already become part of the contaminated air the workers had to breathe.

Sadly, Steve's willingness to work and his productivity for AD meant that cumulatively he ended up in the glue area and did more gluing than just about anyone but John Meredith, whose testimony regarding conditions in the gluing shop and Steve's participation in the gluing work is detailed, credible, and graphic.

Despite Mannheim's attempts to minimize Steve's exposure to Mannheim products, seven co-workers report that Steve regularly worked in the glue show, doing follow-up glue repair, and performing touch-up repair, with no more than a paper mask or a shared respirator for protection.

Co-workers saw him rub contact cement from his skin after a day's work. Everybody used an open can of solvent to clean adhesive from skin, nose and hair. Workers repeatedly noted the solvent odor, worst near the glue shop, but noticeable from afar as well.

Co-worker Tim Skala testified he and Steve worked with contact cements brushes and in squeeze tubes at the sanding, repair and touch-up stations.

Skala often felt woozy and lightheaded, whether in the glue shop, sanding and touch-up, or elsewhere. He had to go outside for fresh air, remove "black gunk" from his nose and ears at the end of a day's work, and wash his skin and facial hair with solvent to try to remove glue.

Jorge Gonzalez recalled how workers the glue shop described the high of working with the adhesives: "like going up in a plane." Many recalled the penetrating odor of the solvent vapor throughout the Eureka City facility; that even in the sanding area he could tell by the odor if gluing was going on, and that if he looked around he often saw it was Steve who was applying glue.

The solvents Steve inhaled evaporated readily and entered directly into his respiratory system. Indeed, these products provide a strong adhesive bond only when their solvent constituents have evaporated into the air.

For solvent vapors to have made workers nauseous and light-headed, concentrations had to have been many hundreds of parts per million -- at or above the levels at which signs of acute overexposure typically appear. The greater irony, however, is that even at levels well below levels typically associated with acute signs and symptoms of solvent toxicity, chronic exposure caused Steve's leukemia.

B. The Solvent Constituents in Mannheim's Products Caused Steve's Leukemia.

As plaintiffs' experts on causation attest, a strong association between organic solvent exposure and acute leukemia has been reported in the human epidemiologic literature for over twenty years.

The epidemiological literature shows that chlorinated solvents are increasingly implicated in well-designed studies which are reporting significantly elevated rates of cancer of the hematopoetic system, including leukemia, among workers exposed to chlorinated solvents.

This is the same body of scientific literature which was reporting significant correlations between these solvents and acute leukemia as early as 1984.

More, a 1992 EPA reports the ability of one constituent to induce leukemia in test animals.

Applying the well-recognized Bradford-Hill principles plaintiffs experts on causation, Drs. Able, Baker, Charlie and Delta opine that Steve's industrial exposure to these solvent-based adhesives was a substantial contributing cause of his fatal leukemia.

Dr. Able is the head of Nevada's Occupational Health Department; Dr. Baker is a professor of epidemiology at Oregon State; Dr. Charlie is a hematologist/oncologist in Seattle, WA. Dr. Delta is a Professor of Industrial Hygiene and Environmental Health Science at the School of Public Health, New York University. All have broad experience in the assessment of industrial factors in human disease.

C. Steve Never Received Adequate, Timely or Appropriate Warnings

Mannheim's MSDSs are grossly deficient in alerting the user of potential chronic health risks of using contact adhesives, and the engineering controls necessary to protect against extremely harmful exposures. Vague, ambiguous terms such as "use with adequate ventilation," "keep levels to acceptable criteria," and "non-toxic" are undefined and unexplained. The increased risks in using a glue shop were never explained. Even belated references to cancer in Supermann MSDSs printed after 1990 trivialize the risk to workers.

These flagrant shortcomings in Mannheim's product literature are all the worse because throughout the 1980s Mannheim knew how AD was using its adhesives, and yet Mannheim actively promoted these products without warning of the need to protect workers making applications. Through its regular sales visits, Mannheim knew AD was using these products without sufficient protection against vapor inhalation and skin absorption.

D. Chronic Exposure to Mannheim's Solvent-Based Contact Adhesives is Steve's Only Deleterious Exposure and the Most Obvious Explanation for His Leukemia.

But for his exposure to solvent-based contact cements and adhesives, Steve had no deleterious exposures that could plausibly explain his devastating illness and early death from leukemia. He did not smoke, drink, use drugs, have x-rays, or live near a hazardous waste site. With onset less than a decade after exposure began, the latency period for Steve's leukemia is fully consistent with the epidemiologic profile on solvent-induced leukemia. Moreover, acute leukemia is uncommon at any age and particularly rare in young adults.

Noting that much of the literature linking leukemia to solvents deals with acute lymphocytic leukemia, Mannheim argues that Steve is reported to have died of acute myeloid leukemia. Mannheim misses several points.

First, the literature on solvent-induced leukemia reports myeloid as well as lymphocytic disease.

Second, Steve's illness was biphenotypic, with evidence of both myeloid and lymphocytic cell line involvement.

Third, Mannheim's Supermann 240 contains a known leukemogen.

Finally, the solvent Mannheim put in its products is only usable when stabilized by the carcinogenic additives. Indeed, its carcinogenicity may well be due to the presence of these additives

DAMAGES

At death Steve was earning $35,000 annually with a work life expectancy of thirty-six years. His family has been deprived of financial support exceeding $1,000,000 and the care comfort and society of a loving, dedicated husband and father with a 47-year life expectancy.

Elizabeth struggles to make ends meet on the social security allotments paid to the couple's small children and the kindness of her friends.

At the request of Mannheim's attorney a demand was tendered months ago, but no response has been received.

Copyright Richard Alexander and Amanda Hawes, 1997.

Richard Alexander is a specialist in personal injury litigation with 30 years in-depth experience. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander Hawes, LLP.

Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.

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