August 23, 2011
Vermont Supreme Court holds causation evidence insufficient in benzene exposure case
On August 5, 2011, the Vermont Supreme Court affirmed the grant of summary judgment to Goodyear Tire & Rubber Company, holding that the plaintiff’s evidence that exposure to benzene allegedly caused his cancer was insufficient to get to the jury.
Plaintiff was diagnosed with non-Hodgkin’s lymphoma which he attributed to benzene exposure that allegedly occurred between 1968 and 1973 while he was a teenager playing on a baseball field on the grounds of the former Goodyear rubber manufacturing plant. That plant was in aoperation for approximately 50 years (1936-1986) in Windsor, Vermont. Plaintiff sued, alleging that the field itself was polluted and that there was a “gully” in the outfield that transported foul-smelling and oily stormwater discharge away from the manufacturing plant. Plaintiff claimed that the discharge carried benzene from the plant through the field and that his exposure to the benzene caused his cancer. There was no evidence that Goodyear used benzene in the plant's manufacturing process, but the chemical is contained in petroleum products that were used at the plant.
Defendants moved for summary judgment. The lower court concluded that plaintiff was not entitled to present his case to a jury because he had provided insufficient evidence to support an inference that he had been exposed to benzene in any amount, let alone an amount that could have caused his illness, nor sufficient expert testimony sufficient to eliminate other potential causes of his disease. On appeal, plaintiff argued that his circumstantial evidence of causation was sufficient to present his case to the jury.
The Vermont Supreme Court affirmed the grant of summary judgment. Stating in part:
In sum, plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant. A gully that ran across the field may have contained water contaminated by petroleum products containing benzene. Benzene has been associated with non-Hodgkins lymphoma, a general category of cancer under which plaintiff's subtype falls. Plaintiff's lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.
Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. Indeed, if a jury were to find in favor of plaintiff on the evidence relied upon by plaintiff, we would have to overturn the verdict. In the end, plaintiff's suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative. As plaintiff's own expert acknowledged, there is no way to know whether any benzene-containing product actually contaminated the ballfield. It is possible, of course. Although benzene itself was not used at the plant, plant operations entailed the use of petroleum products, including gasoline, that contain benzene. But even if we were to assume that benzene-containing products made their way into the gully and through the field, there is no evidence indicating the amount or concentration of benzene that was present. Nor is there any evidence indicating plaintiff's level of exposure to any benzene that may have been present on the field. Nor is plaintiff able to point to studies indicating a risk of cancer posed by exposure to limited amounts of benzene from petroleum products in an outside environment. Putting aside plaintiff's failure to demonstrate the presence of benzene in the field, a jury could only wildly speculate on the level of plaintiff's exposure to any such benzene and on the relationship between any such exposure and plaintiff's disease.
The Vermont Supreme Court also dealt with a side issue of alleged spoliation. Specifically:
Finally, we address the issue of spoliation. Without citing any case law or pointing to anything in the record to support his vague accusations, plaintiff suggests that Goodyear was obligated to keep records of its release of contaminants from the plant but either failed to do so or destroyed any records that were kept, making it virtually impossible for him to prove his case. Plaintiff fails to cite a specific legal basis for the obligation he claims Goodyear had to keep records. Nor does he cite any evidence of spoliation or note any extensive attempt on his part to discover Goodyear's past records. Under these circumstances, we find unavailing plaintiff's unsupported argument that Goodyear's lack of records should result in an inference "favorable to the plaintiff"—presumably that benzene made its way from the plant to the ballfield at a level of concentration sufficient to cause plaintiff's illness.