For some occupational cancers, the cause of the disease is accepted without much debate. Examples are asbestos and mesothelioma, or benzene and leukemia. But for most workers who develop cancer caused by chemical exposure, they face a difficult time proving their case because the scientific evidence can be conflicting and the chemical manufacturers are well prepared to defend against such claims.
Most lawyers won’t take such difficult cases because of the significant risk of losing, the incredible time burdens, and the inability to marshall the scientific and medical evidence which is needed to prove up such claims. Such difficult-to-prove cases are my specialty. The case of Lattin v. Borden, Inc., et al. is an example.
On May 25, 2006, a state court jury in Trenton, New Jersey found that my client, Annette Lattin, had proven that the fatal brain cancer suffered by her husband, Donald Lattin, was caused by his occupational exposure to vinyl chloride. The jury awarded my client $1,214,432.81 in damages.
Before this case came to trial, I had spent four and one-half years working on this matter in discovery and pre-trial activity. Hundreds of thousands of industry documents had been reviewed, 28 depositions had been taken, expert reports had been produced, two defense motions for summary judgment had been denied, an evidentiary hearing had been conducted, and more than 60 motions in limine had been served by the defendants and an opposition to each one had been filed by us.
The case was a modern day David vs. Goliath struggle. I prosecuted every aspect of this case by myself against five defense attorneys, who in turn were supported by an untold number of attorneys and staff. I represented Mrs. Lattin on a contingent fee basis and advanced $259,663 in expenses on her behalf. Lattin was the first vinyl chloride product liability claim to ever go to trial in the United States. The trial took twenty days over four weeks.
Vinyl chloride exposure is accepted as a cause of angiosarcoma of the liver, a rare form of liver cancer. But the chemical industry vehemently denies that vinyl chloride can cause any other form of cancer, including brain cancer.
The workers who developed angiosarcoma worked directly with vinyl chloride in large chemical plants which polymerized the chemical during the manufacturing of polyvinyl chloride (PVC) resin. In this process, vinyl chloride changes from a gas to a powdery solid. The PVC resin is then shipped to fabrication plants where it is heated and mixed to form a plastic product.
Prior to 1974, little consideration was given to how much unreacted vinyl chloride gas was left in the PVC resin. All of that changed in 1974 when B. F. Goodrich reported to the Federal government that it had found three cases of angiosarcoma of the liver in one plant in Louisville, Kentucky where vinyl chloride was polymerized. Goodrich’s announcement sent a shock wave across the industry. OSHA took action, both in the form of an emergency standard, and then with a permanent standard, which reduced a worker’s permissible exposure down to 1 part per million (ppm).
The critical events in the Lattin case occurred 30 to 40 years before the trial, particularly during the period of 1965 to 1974, which had to be reconstructed from documents and testimony. During this time Donald Lattin was employed at a Shell Chemical plant near Princeton, New Jersey. He testified that he would smell a sweet pleasant odor when opening boxes of polyvinyl chloride (PVC) resin. According to our experts, this odor was characteristic of the unreacted vinyl chloride gas in the PVC resin.
The case was tried against a successor to Tenneco Chemicals, which supplied PVC resin to Shell from plants in Flemington and Burlington, New Jersey. Tenneco admitted that prior to 1974 that its PVC resin contained up to 3,000 ppm of unreacted vinyl chloride gas. Tenneco also knew as early as 1971 that vinyl chloride could cause cancer, but it agreed with other PVC manufacturers to keep that information secret. In fact, Tenneco waited until 1975, the date when the OSHA requirement went into effect, before placing a warning on its boxes of PVC resin.
The proof that Donald Lattin’s brain cancer was caused by exposure to vinyl chloride rested on numerous epidemiological and toxicological studies, including:
animal studies showing laboratory animals exposed to the toxin developed brain tumors while the unexposed controls developed none; and,
extensive epidemiological evidence of excess rates of brain cancer mortality in studies of occupationally exposed vinyl chloride workers, both in North America and throughout the world. Workers employed at these plants for more than 20 years showed the highest rates of brain cancer.
The defense vigorously argued that vinyl chloride is not capable of causing tumors within the brain based on hypotheses from studies of molecular mechanisms in rats. One of the leading brain cancer researchers in the United States testified on behalf of the defense.
After two days of deliberations, the jury chose to accept as more likely to be correct the expert testimony put forward by Annette Lattin. The jury discharged its duty by accepting the testimony of the Plaintiff’s expert and rejecting the opinions of the defendant’s experts.
Vinyl Chloride and Brain Cancer
A 1000 lb "pillar" pack of PVC resin. When these were opened at the Shell plant, vinyl chloride gas escaped.