By Erin Fuchs, Law360
Attorneys are primed for a wave of toxic torts over exposure to formaldehyde, which U.S. regulators identified as a “known carcinogen” last summer – but plaintiffs could be hard-pressed to show that low doses of this ubiquitous chemical actually gave them their cancer, experts say.
Formaldehyde, which is used in embalming fluid and a host of other products, has been on the radar of defense lawyers because of its ties to nasopharyngeal carcinoma, a throat cancer. But a “revolution in formaldehyde toxicology” began brewing when federal regulators began linking the chemical to leukemia, according to Larry Riff, a partner at Steptoe & Johnson LLP.
The National Toxicology Program, a part of the Department of Health and Human Services, released a report in June deeming formaldehyde a “known carcinogen” with possible ties to leukemia. This is a remarkable development in light of formaldehyde’s presence in so many products, lawyers said. The report came after the U.S. Environmental Protection Agency issued its own assessment linking formaldehyde to cancer.
“Vast, vast numbers of people are exposed to formaldehyde all the time in industry, in consumer products. It’s in the air we breathe in very small amounts,” Riff said. “So suddenly you have a new idea, which is there’s a very commonly encountered substance that at least some authoritative agencies … say is capable of causing a form of leukemia.”
The new link has captured attorneys’ attention, and plaintiffs lawyers in particular have begun soliciting prospective clients who might be able to assert claims that inhaling formaldehyde gave them cancer, experts said.
“The next question is, when do the lawsuits happen?” said Stan Perry, a partner at defense firm Haynes and Boone LLP. “I think it’s pretty much in the germination stage, if you will. The plaintiffs are out there looking for the right case … [and] the right exposure pattern.”
California plaintiffs have already filed suits over formaldehyde exposure.
Two plaintiffs in Los Angeles County court claim that resin in building material called medium-density fiberboard emits formaldehyde that has caused cancer, and another suit involves an embalmer who contracted leukemia, Riff said..
Future cases could, for example, involve longtime beauty salon workers claiming the formaldehyde-containing products they used gave them leukemia, Perry said, or individuals working in the adhesives or funeral industries bringing similar claims over the formaldehyde used in their workplaces.
Consumers with cancer might file suit claiming they bought a formaldehyde-containing product for years and years and had no idea there was a cancer risk, according to Perry.
Consumers could also say they didn’t even know formaldehyde was in the products they were using, according to Paul S. Rosenlund, a partner at Duane Morris LLP.
“It is found in so many industrial processes that there is a potential for small amounts of formaldehyde to be found in any number of products where potentially it wouldn’t be expected,” Rosenlund said.
While formaldehyde litigation will probably not be the next asbestos, attorneys said the cases could gather enough steam to mirror litigation over the chemical benzene, another chemical linked to cancer. That litigation consists of roughly 100 to 300 active cases with a cadre of skilled attorneys on both sides, Riff said.
Benzene cases involve issues that are similar to those in the potential formaldehyde litigation, as both chemicals allegedly have caused leukemia and could potentially expose consumers and nonconsumers alike, Perry said.
However, it could be tough to prove that a chemical as ever-present as formaldehyde caused leukemia in low doses, and assertions that the chemical is a known carcinogen have met some resistance. The National Academies, a well-regarded membership organization of scientists, for one, spoke out in April 2011 against the EPA’s draft assessment that formaldehyde could cause leukemia, lawyers pointed out.
“I think if it comes to pass that certain companies are identified as target defendants – which I don’t believe has happened yet, but if it does happen, whether it’s in the forest products industry or the coatings industry,” Riff said, “I would urge those companies to take a hard line.”
Those companies should defend themselves vigorously, because they could be on the “leading edge of a tort wave,” he said.
“How they handle those first several cases will be very influential in the big picture, and my personal advice to them would be to take a hard look at those cases and defend them on the science,” Riff said. “Because I do think they’re defensible on the science.”
While the U.S. Environmental Protection Agency has classified formaldehyde as a “probable human carcinogen under conditions of unusually high or prolonged exposure,” many studies by government scientists have proven inconclusive about its links to cancer, according to Rosenlund.
These studies have not shown much of a correlation except for a very slight increase in cancer among funeral workers who had been exposed to high levels of embalming fluid for years, Rosenlund said.
“But all of the studies I have seen are still inconclusive, and have not ruled out other causes,” Rosenlund told Law360. “Thus, in a courtroom it would be very hard to prove.”
Plaintiffs will not just have to show that they were exposed to formaldehyde, but they inhaled sufficient amounts to potentially give them cancer, Perry said.
“That is really a key fight – not just is there an association at all, but the real fundamental issue is, what is the dose?” he said.
Regardless of the merits of these claims, lawyers will continue to watch the early formaldehyde litigation closely to see if it turns into the next benzene.
“Nobody wants to be the next toxic tort, right?” Perry said. “Especially if you’ve got a product that’s ubiquitous.”
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