Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - August 2014

August 15, 2014

Edited by: Timothy Rau, Esquire

Jury Finds in Favor of Defense in Philly Benzene Case

In the case of Estate of David Butler v. Sunoco, March Term 2012, No. 1641, tried before Judge Rosalyn Robinson in the Philadelphia Court of Common Pleas, the jury returned a unanimous verdict in favor of the defendant, Sunoco, where it was alleged that use of the defendant's gasoline caused the plaintiff/decedent's Acute Myelogenous Leukemia ("AML"). The case was tried by Andrew DuPont of Locks Law for the plaintiff and Howard Jarvis and Jeff Petit for the defense.

David Butler was diagnosed with AML at the age of 53 and died over two years later after extensive treatment for his disease. It was alleged that his disease was caused by the use of benzene-containing products that he used as a mechanic for an air conditioning and refrigeration service company in the 1970s. Specifically as to Sunoco, David Butler testified prior to his death that he used Sunoco gasoline to soak and clean parts. He alleged the gasoline was used in addition to the solvents, such as Liquid Wrench, to loosen bolts.

Co-worker witness Robert Walberg testified that he did not recall using gasoline in the manner described by Mr. Butler and believed that using gasoline in that manner would pose a fire risk due to the frequent use of blow torches.

Plaintiff's counsel argued that Sunoco's gasoline contained 2-4% benzene and is a known cause of AML. The plaintiff presented experts who pointed to damage in Mr. Butler's chromosomes as evidence that his AML was caused by benzene exposure. The plaintiff also argued that studies showing that benzene causes AML also show that benzene-containing products, such as gasoline, cause AML.

The plaintiff submitted the case to the jury on two theories of liability- negligence and battery. Counsel argued that Sunoco knew their gasoline contained the carcinogen benzene and failed to control the benzene levels despite having the ability to do so. He also argued that coming into contact with the gasoline constituted a battery. The plaintiff sought non-economic damages for pain and suffering related to the two years of treatment, loss of consortium and wrongful death, as well as economic damages for medical bills and funeral expenses totaling nearly $1.1 million.

The defense argued that gasoline is not pure benzene and that benzene studies do not support the assertion that gasoline causes AML. The defense offered expert testimony of studies showing there was no increased risk of AML from exposure to gasoline. It was also argued that Mr. Butler's AML was caused by his two-pack-per-day smoking habit, as cigarette smoke is a known cause of AML. The defense also used Mr. Walberg's testimony to question whether Mr. Butler ever used Sunoco gasoline as he claimed.

After a trial that lasted two weeks, the jury returned a verdict in favor of Sunoco in less than three hours. It is unknown yet whether the plaintiff plans to appeal the verdict.

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