California Appeals Court Affirms $8 Million Benzene Injury Verdict

SAN FRANCISCO -- (Mealey's) A California appeals court has affirmed an $8 million judgment to a seaman who blamed benzene exposure aboard oil tankers for the loss of a kidney to cancer, saying Feb. 18 that scientific certainty is not required for a toxic tort plaintiff to prevail (Mack Shelby v. SeaRiver Maritime Inc., No. A122449, Calif. App., 1st Dist., Div. 3). 

Able-bodied seaman Mack Shelby was exposed to significant amounts of benzene vapors during his work during 17 years of service aboard SeaRiver Maritime Inc. tankers carrying crude oil from Alaskan fields to California refineries, particularly while topping off tanks and measuring their contents and when pressure-relief valves would release petroleum vapors into the vessels, the First District California Court of Appeal, Division 3, panel said.  Whether benzene can cause kidney cancer is controversial, the panel said, but the opinions of Shelby's expert, Dr. Nelson Avery, and the studies upon which he relied, were admissible.  Avery, a board-certified specialist in internal medicine, occupational medicine and medical toxicology, testified at Shelby's 2008 trial. 

"[W]e . . . find noteworthy that SeaRiver does not challenge the underlying trustworthiness of any of the studies relied upon [by] Dr. Avery, much less his qualifications to interpret their contents or to assess their relevance," the panel said.  "Rather, SeaRiver claims Dr. Avery's reliance on these studies was unreasonable because of the overall lack of consensus in the scientific community regarding benzene's relationship to kidney cancer.  However, California law does not require absolute consensus among scientists as a prerequisite for recognizing a causal link." 

"Ultimately, the fact that other peer-reviewed studies reach contrary conclusions, call for further research, or were conducted under circumstances in certain ways distinguishable from those at hand, does not render an expert opinion speculative or baseless," the panel said.  "Rather, these facts are relevant to the probative weight of the opinion, which remains a matter for the jury rather than this court." 

SeaRiver's own internal studies and medical monitoring of the plaintiff supported evidence for his exposure, the panel said.  In 1998, the panel said, his medical records indicated declines in his blood cell counts.  His white blood cell count dropped from 9,500 to 6,300, and his platelet count dropped from 480,000 to 284,000, the panel said.  On retesting, however, his counts improved and he was authorized to continue working.  He was diagnosed with kidney cancer in 2003 and in 2006 brought suit the San Francisco County Superior Court, as a "seaman" under the Jones Act, 46 U.S. Code Section 30104.   

The opinion was by Justice Martin J. Jenkins, with Presiding Justice William R. McGuiness and Justice Sandra Lynn Margulies concurring. 

[Editor's Note:  Full coverage will be in the February issue of Mealey's Litigation Report: Benzene.  In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #83-110223-010Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.] 

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For more information, call editor Michael Lefkowitz at 215-988-7732, or e-mail him at michael.lefkowitz@lexisnexis.com.