Chemical Engineering November 2011 - 6

Letters
Specializing in Transfer of
Sensitive Products
VCHEM SHOW
isit Us At Booth #
540
Fight formaldehyde litigation
Perhaps enough has been written about the questionable
science underlying recent U.S. government pronouncements
concerning formaldehyde and human cancer of
the lymphohematopoietic system ( " LHPs-including
the leukemias and the lymphomas)*. Now, suppliers of
formaldehyde-containing product must face the uncertainties
and high expense of defending questionable and
likely meritless lawsuits asserting formaldehyde exposure
and induction of an LHP malignancy. The opportunity for
such lawsuits is clear: in the U.S. 150,000 new LHP malignancies
are diagnosed annually, and at least hundreds
of thousands of workers are occupationally exposed while
hundreds of millions of others are non-occupationally exposed
to formaldehyde daily.
Confused and frightened cancer victims turn to the
Internet for guidance where they find an army of lawyers
seeking to represent allegedly injured workers relative
to formaldehyde-containing " defective products. " (Google
" formaldehyde cancer lawyer " and see what comes up.)
Such lawyers trumpet the bumper-sticker conclusion of
the governmental authoritative bodies ( " formaldehyde
causes leukemia! " ) while chalking up any challenge to the
science as corporate dithering and double talk (or worse).
In the 21st century, judges are to serve as " gate keepContact
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6 CHEMICAL ENGINEERING WWW.CHE.COM NOVEMBER 2011
Mouvex_3375x10-Sept 2011.indd 1
9/27/11 1:44 PM
ers " on the admissibility of expert opinions - in theory,
those without a meaty scientific basis do not get admitted
and a jury never hears them. That can be the end of the
case. (This is how a judge " throws a case out of court " - a
result achieved far more easily in the popular imagination
than in the actual practice of law.)
For inhaled formaldehyde to cause leukemia, the toxin
must reach the bone marrow. So far science has not been
able to articulate such a mechanism, although creative hypotheses
have been suggested. For that reason, the plaintiff's
expert who proclaims that inhaled formaldehyde in
fact caused a particular plaintiff's leukemia ought not to
be able to offer that opinion. But we ask much - perhaps
too much - of our judges to " throw the case out of court "
on that ground in the face of government pronouncements
that necessarily imply the contrary.
This means, then, a jury trial or a settlement. What
should a formaldehyde defendant do? Industry should
fight formaldehyde cancer cases hard. In most places in
the U.S., where a fair-minded jury can be selected, a defendant
will win most of these cases on the merits and
thereby change the risk-benefit calculation for the plaintiffs'
bar. Industry's track record involving the compound
benzene (a human carcinogen) is instructive: a large majority
of such cancer claims actually tried have resulted in
defense verdicts.
Lawrence P. Riff, toxic tort practice group leader
Steptoe & Johnson LLP, Los Angeles ■
* Formaldehyde is capable of causing leukemia in humans, according to
the U.S. Department of Health and Human Service's Congressionally-mandated
12th Report on Carcinogens, released on June 10, 2011, and all LHP
malignancies according to the U.S. EPA's draft IRIS Assessment of Formaldehyde
released in 2010. But see, National Academy of Sciences's critical
review of the IRIS Assessment ( " NAS Reviewers Slam EPA's Formaldehyde
Assessment " , New York Times, April 8, 2011).
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Chemical Engineering November 2011

Table of Contents for the Digital Edition of Chemical Engineering November 2011
