Jury holds gas company liable for trucker’s death from benzene exposure

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Recent Cases: Industrial Products & Equipment

December 2011/January 2012, Volume 30, No. 6

Jury holds gas company liable for trucker’s death from benzene exposure 

Claytor v. Kinder Morgan Energy Partners, L.P., Nev., Clark Co. Dist., No. A566869, Oct. 10, 2011.

From 2002 to 2008, Rick Lewis, a tank truck driver, loaded gasoline at a bulk gas distribution terminal operated by Kinder Morgan Energy Partners, L.P. Lewis loaded the gasoline—which contained up to 3 percent benzene—between one and seven times daily before delivering the fuel to various retail outlets.

In 2008, Lewis was diagnosed with Myelodysplastic Syndrome. The disease—which affects the bone marrow and causes abnormal production of blood cells and platelets—is incurable and typically requires chemotherapy, blood transfusions, and bone marrow transplants. Lewis died of the disease the following year, at age 58. He is survived by one daughter, who reached majority shortly after his death. His medical expenses totaled roughly $700,000.

Lewis’s daughter and a representative on behalf of his estate sued Kinder Morgan, asserting strict liability, negligence, and premises liability theories. Among other things, the plaintiffs contended that Kinder Morgan was strictly liable for distributing a defective product. They offered evidence that Lewis’s DNA showed chromosomal damage associated in the scientific literature with benzene exposure.

The plaintiffs also alleged that the defendant failed to monitor its premises for benzene exposure, disregarded standard industrial hygiene practices, and failed to warn Lewis and other invitees of the dangers of benzene exposure through normal bulk loading operations.

The plaintiffs claimed past and future lost earnings and income of approximately $800,000.

Kinder Morgan argued that it was merely a storage facility, not a distributor, for purposes of strict liability.

The defendant also argued that gasoline is not a carcinogen and denied that benzene exposure was a hazard at any of its facilities. The company contended that Lewis’s disease had resulted from unknown causes.

The jury found that Kinder Morgan was a distributor of a defective product, that it failed to exercise reasonable care at its premises by subjecting Lewis to an unreasonable risk of harm, and that both the distribution activities and negligence proximately caused his disease.

The jury awarded the plaintiffs $7.5 million, including $2.5 million for Lewis’s predeath pain and suffering, $1 million for his daughter’s past grief and sorrow, $2.5 million for her future grief and sorrow, $800,000 for past and future lost earnings and income, and $700,000 for past medical expenses.

The plaintiffs’ experts were Martyn Smith, toxicology, Berkeley, Cal.; Peter Infante, epidemiology, Falls Church, Va.; Stephen Petty, industrial hygiene, Dublin, Ohio; and Vikas Gupta, oncology/hematology, and Terrence Clauretie, economics, both of Las Vegas, Nev.

The defense’s expert witnesses in the case included David Pyatt, toxicology, Superior, Colo.; Kenneth Mundt, epidemiology, Amherst, Mass.; John Spencer, industrial hygiene, Columbia, Md.; and John Bennett, oncology/hematology, Rochester, N.Y.

Plaintiffs’ Counsel

Justin Shrader,

Keith Patton, and

Robert Shuttlesworth, all of Houston, Tex.

Cliff W. Marcek, Las Vegas, Nev.

Comment: The plaintiffs also sued several gasoline refiners, alleging their products had caused Lewis’s disease. The plaintiffs settled with those defendants before trial for confidential amounts.

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