ConocoPhillips says benzene plaintiff fails to ID its products

Steve Gonzalez Apr. 25, 2008, 5:45am

Larry Hepler

ConocoPhillips filed a motion to dismiss a benzene complaint alleging it contains insufficient facts and pleads numerous legal conclusions without a factual basis.

Represented by Larry Hepler of Edwardsville, ConocoPhillips argues the complaint fails to specifically identify any product allegedly processed, produced, manufactured, sold, distributed, marketed, or otherwise used by ConocoPhillips.

The estate of James Granat filed the suit against ConocoPhillips and 18 other defendant corporations in Madison County Circuit Court claiming his benzene exposure caused him to develop myelodysplastic syndrome and acute myelogenous leukemia which led to his death on Jan 17.

According to the complaint filed March 5, Granat worked for various employers throughout Illinois performing work in the printing industry and as a security guard.

The suit claims Granat's exposure to benzene was completely foreseeable and could or should have been anticipated by the defendants. It also claims the defendants knew or should have known that benzene had a toxic, poisonous and highly deleterious effect upon the health of the persons inhaling, ingesting or otherwise absorbing it.

The eight-count suit seeks in excess of $400,000 in compensatory damages and attorney fees.

Benzene is an aromatic hydrocarbon that is produced by the burning of natural products. It is a component of products derived from coal and petroleum and is found in gasoline and other fuels and is used to make some types of rubbers, lubricants, dyes, detergents, drugs and pesticides.

Natural sources of benzene, which is known to be a carcinogen, include volcanoes and forest fires. Benzene also is a natural part of crude oil, gasoline, and cigarette smoke.

ConocoPhillips claims the complaint lacks specific identification that James Granat was exposed to a particular ConocoPhillips product at any particular location or time.

"The complaint merely alleges in a blanket statement that decedent James Granat was exposed to and inhaled, ingested or otherwise absorbed benzene fumes emanating from benzene and benzene-containing materials and products he was working with and around," the motion to dismiss states. "For this reason, the complaint must be dismissed for failing to satisfy Illinois' fact-pleading statement.

The estate claims the defendants failed to exercise ordinary care and caution for his safety, health and welfare by including benzene in their products and processes, even though it was completely foreseeable that people living around them would inhale or ingest benzene, including benzene in their products while defendants knew or should have known that carcinogenic chemicals would have a toxic, poisonous and highly deleterious effect on those handling them and including benzene when adequate substitutes were available.

Granat's estate also claims the various defendants failed to allocate any or adequate funds to test, monitor, and research the human health effects of benzene-containing products or processes on residents living in proximity to where benzene was being used, failed to provide any or adequate warnings to people living around the area, failed to recommend the use of adequate personal protective equipment inhaling or living around benzene and failed to recall or cease using benzene and products and processes containing benzene.

Citing Second District Appellate case Chandler v. Illinois Central Railroad ConocoPhillips argues that when faced with a motion to dismiss, the trial court is to consider only the allegations in the complaint and determine whether those well-pleaded facts are sufficient.

They argue that Illinois law requires a plaintiff stating a cause of action for injury caused by a defective product to identify the particular product at issue and link it to the named defendant.

"Allowing plaintiff to proceed with this suit without specific product identification or exposure would require defendants, including ConocoPhillips, to act as insurers of the petroleum industry, not limiting to its own conduct," the motion states.

ConocoPhillips argues that the Illinois Supreme Court has soundly rejected the concept of suing a defendant without identification of its products.

"ConocoPhillips is entitled to specific allegations directed to it alone upon which it can separately evaluate the claims being made and as to which it can prepare its respective defense," the motion states.

Granat's estate is represented by Richard Saville, Jr., Robert Evola and Ethan Flint of Alton.

Madison County Circuit Judge Andy Matoesian had yet to set a hearing date on the motion.

ConocoPhillips is the only defendant that has responded to the complaint.

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