Left Out to Dry Over Benzene-Rich Paint

CHICAGO (CN) - The 7th Circuit revived a widow's claims that benzene exposure from paint used in Chrysler factories caused her husband's fatal leukemia.

Donald Walter Schultz worked as a painter for the American Motors Corporation - now Chrysler - from 1981 to 1989. Schultz was responsible for painting factory walls, ceilings and pipes. He was diagnosed with acute myeloid leukemia in November 2005 and died less than a year later.

His wife, Joann Evelyn Schultz, sued Akzo Nobel Paints and Durako Paint and Color, seeking damages based on the alleged benzene content of their paints. Chrysler is not a party to the action.

In support of her claim, Schultz presented two expert witnesses. James Stewart, an industrial hygienist, calculated Schultz's total benzene exposure to be 24 parts-per-million per year.

Steven Gore, a professor of oncology at Johns Hopkins Medical School, then conducted a "differential diagnosis" to determine what factors contributed to Schultz's leukemia.

Despite Schultz's smoking habit, Gore determined that benzene had been a major cause, based in part on his conclusion that exposure to just 11 ppm-years would have made Schultz eight-times more likely to develop leukemia.

Akzo's expert witness disagreed, testifying that benzene exposure is only problematic at 40 ppm-years and above.

After finding Gore's testimony scientifically unreliable, however, U.S. District Judge Rudolph Randa granted Akzo summary judgment. Randa also found no evidence that Schultz had been exposed to any Durako paints.

"The District Court seized on the portion of Dr. Gore's testimony in which he discussed the 'no threshold' idea, and on that basis, it found the entirety of Dr. Gore's opinion to be scientifically unreliable because it thought that the 'no threshold' theory is 'merely a hypothesis,'" according to the 7th Circuit's reversal last week.

A three-judge panel with the federal appeals court nevertheless rejected this reasoning.

"In striking Dr. Gore's findings because the 'basic thrust' of his opinion was that 'the amount of benzene exposure is irrelevant,' the District Court overlooked Dr. Gore's unambiguous conclusion that Schultz had been exposed to a level of benzene that has been shown in studies to be a 'very toxic and dangerous level,'" Judge Diane Wood wrote for the court.

"Had Dr. Stewart calculated that Schultz's exposure was only 5 ppm-years, we would have a different case, in which the district court's concern about an ill-defined floor for safety would have been justified. But we do not."

Rather than granting summary judgment, Randa should have allowed a jury to weigh the conflicting opinions.

"Our system relies on cross-examination to alert the jury to the difference between good data and speculation," the 18-page opinion states.

"Both experts were entitled to present their views, and the merits and demerits of each study can be explored at trial."

The appeals court affirmed Randa's decision to dismiss Durako, however, after finding only one document "even hinting" at Schultz's possible exposure.

"This document was not authenticated; there appears to be no foundation in the record about who created it or why; and it does not indicate when, how much, or how often the Durako product was used," Wood wrote. "This falls short, as a matter of law, for the purpose of demonstrating that Schultz used any amount of Durako paint during the course of his work for Chrysler."

Akzo acquired Nobel Glidden Co., whose paints Schultz used, in 2008.

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