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Fishkin Lucks LLP

Fishkin Lucks is an elite litigation boutique serving clients that demand exceptional value in a changed landscape for legal services. We possess the experience and expertise to meet the litigation and risk management needs of Fortune 500 and middle-market companies alike, yet we are flexible enough to represent individuals in significant, high profile matters. We provide exceptional value by offering a unique combination of BigLaw experience, expertise and creative problem solving in a lower overhead environment that allows for reduced clients’ costs.


From:Fishkin Lucks LLP Date:September 11, 2017 Re:Rhyne v. United States Steel Corp., et al.:  Status Report     I.Background Plaintiffs Bruce Rhyne and Janice Rhyne, represented by Andrew DuPont of the Locks Law Firm, originally brought this action in the Philadelphia County Court of Common Pleas in January 2016 alleging that Mr. Rhyne developed acute myeloid leukemia (“AML”) as a result of his exposure to dozens of benzene-containing products -- both non-occupationally and throughout the course of his employment as a pipefitter and maintenance supervisor at various nuclear power facilities owned by Duke Energy from 1976-2015.  Mr. Rhyne was diagnosed with AML in May 2015. Plaintiffs brought claims for negligence, breach of warranty, strict liability, and battery (against Univar (individually, and as successor to ChemCentral and Van Waters & Rogers) (collectively, “Univar/CC”), and eighteen (18) other defendants  who are alleged to have manufactured and/or distributed the benzene-containing products to which Plaintiffs claim the Mr. Rhyne was exposed.  Univar/CC currently has pending before the Court a motion for reconsideration of the Court’s earlier denial of its dispositive personal jurisdiction motion based on Daimler and its progeny. We remain hopeful that Univar’s motion will be granted, as the judge who will be deciding the motion recently held under identical circumstances that the Pennsylvania courts cannot exercise general personal jurisdiction over Univar.  If Univar’s motion is granted, Univar will be dismissed from this matter for lack of jurisdiction.  Additionally, the Court is currently considering defendants’ joint forum non conveniens motion.  If granted, the motion would force Plaintiffs to re-file their case in North Carolina, where Mr. Rhyne lives and worked.  II.Plaintiffs’ Allegations Univar is not a target defendant in the matter; rather, it is only alleged to have supplied several commoditized petroleum-based solvents (including toluene, xylene, heptane, acetone, and mineral spirits) to three (2) co-defendant manufacturers, whose finished products Mr. Rhyne allegedly worked with or around. Specifically, Plaintiffs allege that Mr. Rhyne was exposed to the following finished products that they claim contained Univar/CC solvents: (i) CRC brake cleaner and carburetor cleaner products; and (ii) Safety-Kleen parts washing solvent. However, Plaintiffs have little evidence to support their claims for the following reasons: a.Alleged CRC Exposure Mr. Rhyne testified that he used CRC products from the 1985 up until 2000.  Based upon our analysis of the record evidence in this matter, and our review of documents exchanged in dozens of other trace benzene matters through the years, the earliest date on which we have seen evidence that Univar/CC supplied solvents to CRC is 2004.  Therefore, there is no evidence Univar/CC supplied any solvents to CRC during the years the Mr. Rhyne used CRC products.  In addition, during the relevant period we have evidence that CRC also purchased those solvents from several other suppliers; thus, Plaintiffs would never be able to show that Mr. Rhyne was ever exposed to a can of a CRC product containing a Univar/CC solvent. b.Alleged Safety-Kleen Exposure Mr. Rhyne testified that he worked with Safety-Kleen parts washer starting in his shop class in high school and throughout his career at Duke Energy.  Based upon our analysis of the record evidence in this matter, and our review of documents exchanged in dozens of other trace benzene matters through the years, the only dates on which we have seen evidence that Univar/CC supplied solvents to Safety-Kleen was 1990 and 1993.  Moreover, Univar was not one of the suppliers for Safety-Kleen’s Southeast region, which we understand would have included the North and South Carolina Duke Energy locations where Mr. Rhyne worked.  Additionally, as was the case with CRC, even if Univar/CC had supplied solvents to Safety-Kleen during the relevant period, we have evidence that Safety-Kleen also purchased those solvents from several other suppliers; thus, Plaintiffs would never be able to show that the Mr. Rhyne ever used a Safety-Kleen parts washing machine that contained a Univar/CC solvent.  The Safety-Kleen exposures are also outside of the relevant etiologic window for the development of AML. III.Univar’s Defenses Univar has several strong defenses – each one of which is dispositive of Plaintiffs’ claims: a.Plaintiffs have no evidence that the Mr. Rhyne was exposed to a Univar/CC product.   Given the foregoing, Plaintiff has no evidence that their Mr. Rhyne was ever exposed to a Univar/CC product.  b.Even if Plaintiffs had evidence of exposure to one or more Univar/CC solvents, the solvents at issue do not cause AML (i.e., no general causation).   As Univar’s experts will testify to, not a single agency or scientific body (e.g., ACGIH, IARC, OSHA, US EPA, WHO, etc.) has found that even high occupational exposure to the solvents at issue can cause cancer in humans. The lack of carcinogenicity of these solvents has also been independently confirmed in numerous toxicological studies exposing rodents and other experimental animals to high-doses for extended periods of time (in some cases, their entire life). These long-term bioassays consistently report no evidence of hematopoietic toxicity or carcinogenicity, which are standard toxic endpoints following sufficient exposure. And, the solvents used in these animal studies always contain benzene, providing additional evidence that the low levels of benzene present in these solvents (<.1%) are not causative.  c.Even if Plaintiffs had evidence of exposure, and even if the jury was to believe that the Univar/CC solvents at issue could cause AML, Mr. Rhyne’s AML was de novo, and thus not benzene-induced.   While we have not yet begun working with our experts in the preparation of expert reports in the matter, we are aware of numerous factors here that would lead a jury to conclude that the Mr. Rhyne’s AML was de novo or idiopathic – and thus not caused by benzene exposure:  •There is nothing about the character and course of the decedent’s AML to distinguish it from the far more likely sudden appearance of de novo AML, or smoking-induced AML, which occurs among members of the general population over a wide age range and which accounts for causation in most examples of AML in developed countries.     •Mr. Rhyne’s AML was of explosive onset as is typical of de novo AML while forms of secondary AML are often associated with a proven prior history of myelodysplastic syndrome (MDS) and a more gradual onset of AML.  Mr. Rhyne had no laboratory or clinical evidence of a prior MDS   •Mr. Rhyne is FLT-3 ITD positive and NPM-1 positive, two cytogenetic abnormalities that are prevalent in de novo AMLs (that are not prevalent in benzene-induced leukemia).    •Mr. Rhyne’s sister was diagnosed with AML in 1997, which strongly suggests that there is a genetic driver to his disease. Though the deadline for defendants’ expert reports is still two months away, Univar expect to rely on the following experts testify at trial:  John W. Spencer, CIH, CSP; Peter Shields, M.D.; David H. Garabrant, M.D., M.P.H.; David W. Pyatt, Ph.D.; Ethan Natelson, M.D. IV.Liability Assessment & Settlement Value Given the strength of Univar’s defenses in this matter, we find it highly probable that the Court will grant Univar’s motion for a directed verdict following Plaintiffs’ case in chief.  However, even if that motion is denied, we believe that Univar’s proportionate share of any award by the jury, given the lack of exposure proofs, would be de minimis.  Plaintiffs have not yet made a settlement demand in this matter.   V.Schedule Fact discovery has closed.  Plaintiffs’ expert reports are due on October 2, and defendants’ reports are due on November 6. We expect the matter will be tied in the late-Spring 2018.   

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Litigation Associate
Fishkin Lucks LLP - Newark, New Jersey, United States
Litigation Associate to Join a Thriving Practice in Newark, NJ
Posted - September 13, 2017
The Legal Center One Riverfront Plaza, Suite 410 Newark New Jersey 07102