The All Hallows’ Eve Post… & A Death Claim Denied in the First State

I am not a big fan of Halloween.  I love the fall, autumn leaves and pumpkins and smells which are uniquely baked good smells- cinnamon, nutmeg, gingerbread, apple and the like. Not so much a fan of the darker things — skulls, skeletons, devils.  And too much celebration of the dark side for my taste . . . although I will be giving out Halloween candy on Friday night (‘cause I never pass up an opportunity to give away food).  So this photo of Brian Legum’s daughter Taylor is perfect for my taste . . . something so precious and dear can only smack of a gift from God.  I am sure Brian and Karen would agree . . . :>)

The case du jour is one of mine; I try not to blog about my own cases too often, but like an addiction in relapse, sometimes I just have to share the things that occupy the largest portion of my heart.  In any given year I usually have one case, possibly two, the magnitude of which overshadows and eclipses all others.  This one, without a doubt, was my big kahuna this year.  I give you The Estate of William Pearson v. Star Building Services, IAB#1379165 (10/21/14), adjudicated by Hearing Officer Susan Mack (decision 44 pages long).

The facts:

Claimant was a 50-something African American male employed by Star for approximately twenty years, wearing a variety of hats but admittedly one that included the cleaning and stripping of floors in medical facilities, schools and commercial office space.  He passed away of multiple myeloma in late 2012 and the allegation is that the myeloma was caused directly or indirectly by his exposure to petrochemicals in the floor cleaning products.  My client acknowledged exposure to these products but did not make any concession regarding the nature and intensity of the exposures as assumed by claimant’s experts.

The experts:

Making a cameo appearance as an industrial hygienist was Dr. Candace Tsai whose real claim to fame is nanoparticles.  When she was first named on behalf of the claimant and I Googled her background, which per the internet is a salute to nanoparticles (and no, I am still not really sure what they are), I had my own little meltdown.  No way was I going to master the science of nanoparticles in the time leading up to the hearing (and thankfully I didn’t have to, although until her report was produced I was really sweating it).  To be fair, Dr. Tsai holds a Bachelors and Masters in Chemical Engineering and a Doctorate in Cleaner Production and Occupational Hygiene.  But respectfully, I don’t think she added much to the case.  I include her in this discussion because it is wonderful to know where y’all can go if you have a case that pivots of the science of nanoparticles.

The claimant’s expert of first resort, who testified live, was Dr. Omowunmi Osinubi, a medical doctor who specializes in Occupational and Environmental Medicine.  Her opinion was that the claimant’s petrochemical exposure and exposure to Benzene in particular, was the likely culprit with regard to the claimant developing multiple myeloma, which she testified was a rare cancer (but admittedly occurring twice as frequently in the African American population, and admittedly occurring most often in the 50 to 65 year age group).  Of the 262 MSDS sheets tendered by the employer representing every possible chemical to which the claimant might have been exposed in the last 15 years, approximately 9 products were of concern--consistent with the products cited by Dr. Tsai.  I would add that Dr. Osinubi is no stranger to our Delaware IAB and has appeared in any number of cases — she is kind of a go-to gal for exposure cases.

Dr. Michael Greenberg testified at the hearing on behalf of Star Building.  He is board-certified in Emergency Medicine, Medical Toxicology, and Occupational Medicine.  In his opinion, there is no known cause for multiple myeloma, further explaining that a “known cause is different from a factor that increases the risk of a disease.”  Claimant had three pronounced risk factors for the development of multiple myeloma--being mid to later age, being African American, and having Hepatitis C.  He disagreed with the opinions of Dr. Tsai and Dr. Osinubi and felt that the assumptions as to potential levels of exposure were overstated and inaccurate.

The rub:

Of the 262 MSDS sheets tendered by the employer, there were approximately 9 to 12 products of concern identified by each of claimant’s experts and for the most part the allegedly offending agents overlapped.  As the case barreled ahead toward hearing, and close scrutiny commenced as to the multiple red wells of documents produced between the parties (to include no less that 40 medical-scientific journal articles and one complete treatise), it became clear that pretty much all of the products of concern were ones used for cleaning activity other than the cleaning and stripping of commercial flooring, with the exception of an item used for removing carpet stains on a spot basis (as opposed to, for example, carpet shampoo).  Thus, the workplace “toxins” did not match the alleged avenue of exposure.  This was not lost on the Hearing Officer.

The outcome:

The claimant’s estate’s DCD Petition was denied.  The decision is a two-pronged analysis that found that the exposure was lacking and that even allowing for exposure, causation was similarly lacking.  Dr. Greenberg and the claimant experts were in agreement as to the multiple non-work-related risk factors present for this disease. The Hearing Officer commented that she agreed “with Dr. Greenberg that Dr. Osinubi is overstating the case for an association between the type of petrochemical exposures experienced by Pearson and multiple myeloma.”  Of further note, Benzene was the only agent under scrutiny that is a recognized carcinogen and one related in the literature to a specific type of .leukemia, not to multiple myeloma.

Hats off to the Hearing Officer for pulling together approximately 8 hours of testimony and fairly complex medical evidence (including all the scientific journal articles handed up) into a cogent 44-page analysis.

What I love about this type of case is how much you learn as the litigation unfolds.  I know a little more about petrochemicals.  A lot more about multiple myeloma.  And still virtually nothing whatsoever about nanoparticles . . . .

Irreverently yours,

Cassandra Roberts