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Anatomy of a Mass Toxic Tort


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         Anatomy of a Mass Tort
           November 8, 2006
    Presented by ACC’s Litigation Committee
    and Sponsored by Goodwin|Procter LLP

            Association of Corporate Counsel
                                                   Page 3

Presented by:    Christopher Garvey
                 Elizabeth Geise
                 Valerie Ross
                 All Partners of Goodwin|Procter

Moderated by:    Melvin S. Merzon
                 Senior Counsel, retired
                 International Truck and Engine

                                                   Page 4

Today’s Presentation
    Valerie: Using benzene as an example, will
    discuss how an established toxic tort can
    become a mass tort.
    Chris: Will explain how scientific evidence is
    used and misused in the mass tort context,
    again using benzene as an example.
    Betsy: Will offer practical advice for
    companies facing a mass tort problem.
                                   Page 5


  Please e-mail any questions to

                                   Page 6

The development of a new
mass tort by the plaintiffs’
                                     Page 7

Step One: Identify Potential Clients

                                     Page 8

      Diseases Allegedly Caused
         by Benzene Exposure
Acute Myelegenous Leukemia (AML)
Aplastic Anemia
Acute Lymphocytic Leukemia (ALL)
Chronic Myelogenous Leukemia (CML)
Chronic Lymphocytic Leukemia (CLL)
Multiple Myeloma
Non-Hodgkins Lymphoma
Other blood disorders
                                                                         Page 9

  Large Potential Pool of Plaintiffs with These Diseases
   Disease                     Estimated New Diagnoses in 2006
                                (per American Cancer Society)
AML                                         11,930
ALL                                         3,930
CML                                         4,500
CLL                                         10,020
Multiple Myeloma                            19,570
Non-Hodgkins Lymphoma                       58,870

By comparison, Rand estimates that there will be about 2,500 new mesothelioma
diagnoses in 2006. And, at the peak in the early 1990s, there were just under 3,000
such cases.

In majority of new leukemia cases (80-85%) there is no obvious cause.

Google search page
SimmonsCooper LLC

SimmonsCooper LLC
                                                    Page 13

 Step Two: Identify Possible Causes
     Benzene used to manufacture plastics, rubber,
     leather goods, and a number of other products.
     Benzene a component of gasoline and other
     petroleum products
     As a remnant of manufacturing process, small or
     “trace” amounts (less than .1 percent) of benzene
     found in many common household products,
     including solvents, detergents, pesticides, paints
     Benzene-containing products, particularly solvents,
     used at many industrial facilities
     Environmental contamination

                                                    Page 14

Step Three: Identify Theory of Liability

      Consumer product case
      Occupational exposure case
      Environmental exposure case
                                                                    Page 15

Example Case: Consumer Product
   Early April: Reports of FDA finding that some soft drinks have elevated
   benzene levels
   Less than one week later: two class action suits (Mass. and Florida)
   Within a month or so, class action lawsuits also brought in California,
   Kansas, and Washington, D.C.
   Defendants include Coca-Cola, Pepsico, Kraft, Schweppes, and others
   Theories: breach of warranty, false advertising, unjust enrichment
   Damages sought include disgorgement of all profits earned from sale of
   allegedly benzene-contaminated products
   In August, two soft drink manufacturers reportedly settled the suits.
   Agreed to alter ingredients in their products to eliminate benzene-
   forming components and also to offer refunds to consumers.

                                                                    Page 16

Example Case: Occupational Exposure
     Brought by industrial workers who allegedly used
     products with benzene on the job, for example, gas
     station attendants, steel workers, paper manufacturers
     Defendants: manufacturers and distributors of all
     products used at jobsites; if employed by independent
     contractor, also owners of premises where worked
     Theories: negligence, strict liability, intentional/negligent
     misrepresentation, breach of warranty,
     intentional/negligent failure to maintain premises
     Damages sought include punitives
                                                         Page 17

Example Case: Environmental Exposure
    Brought by residents of neighborhoods with allegedly
    benzene contaminated water or soil
    Defendants: owners of nearby facilities from which benzene
    contamination allegedly emanated.
    Theories: negligence, strict liability, battery
    Damages sought include punitive damages and medical
    September 2005 = $13.3 million compensatory damage
    verdict against oil company.
    Recent cases filed in New York by residents of Brooklyn
    neighborhood that was location of decades old oil spill;
    plaintiffs seek clean up and medical monitoring.

                                                         Page 18

  Step Four: Select Jurisdiction
     Common jurisdictions include:
        New Jersey
        New York
                                                 Page 19

Daubert/Frye and Other Scientific
 Evidence Considerations

                                                 Page 20

Scientific Background
  Ubiquitous chemical
  Naturally occurring
  Well-studied – organizational pronouncements
          Benzene monograph – “carcinogen”
          Gasoline – non-carcinogen
      ATSDR Toxicological Profile
                                        Page 21

Regulatory Overview
  Toxic Substances Regulations
       OSHA standard
  “no safe level of exposure”
  long history of corporate knowledge
       “asbestos industry”
       “petroleum industry”

                                        Page 22

Identify Your Product
  Pure benzene
  Benzene-containing products
     Carbonated beverages
                                         Page 23

Identify the Disease at Issue
  Aplastic anemia
  Other leukemia
  Other “cancer”
  Other blood disorders
  Medical monitoring
      Class action
  Environmental “threat” case

                                         Page 24

Tie the Disease to Your Product
  “Benzene is benzene” or “asbestos is
  Parker decision

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