Jury finds for defendant in Madison County benzene trial

By Amelia Flood | Aug 30, 2010



A Madison County jury on Monday afternoon found for 3M Co. of Minnesota in a benzene trial that began two weeks ago. Jurors reached their decision in less than three hours of deliberations.

Aircraft mechanic Veto Kleinaitis had claimed that benzene found in 3M's adhesives and solvents, such as Top and Trim, exposed him to carcinogens.

That exposure, he claimed, led him to develop mantle cell lymphoma (MCL) in 2005. MCL is a form of non-Hodgkin's lymphoma (NHL).

3M had denied that its products caused the plaintiff's disease. It pointed to Kleinaitis's 20-plus year history of smoking and other sources of exposure.

None of the parties were immediately available for comment following the verdict.

The case is one of 17 benzene suits filed by the SimmonsCooper law firm of East Alton between 2004 and 2006.

Originally, the case named more than 20 defendants.

All but 3M dropped out of the suit or settled.

The jury began its deliberations just before 12:30 p.m. Monday after closing arguments delivered by plaintiff's attorney William Kohlburn and defense counsel William Book Jr.

Kleinaitis had sought more than $1 million in damages.

Over the course of the trial, Kleinaitis had winnowed down his claims. Among those that dropped from the suit were allegations that 3M's products were defectively designed and that the company acted willfully and wantonly.

A claim for the loss of consortium filed by the plaintiff's wife, Brenda Kleinaitis, was dismissed shortly before the trial opened Aug. 17.

In his closing argument, Kohlburn pointed to his client's background as he asked jurors to keep parts of the case in perspective.

"I'm proud to be here for him but I'm not necessarily happy to be here for him," Kohlburn said of the case. "A burden of proof is not beyond a reasonable doubt. We don't have to be sure."

Kohlburn acknowledged that his client's history of smoking and alcohol issues played into the situation.

But, Kohlburn argued, that did not mean that 3M's products and the benzene in them had not added to his client's overall benzene exposure.

Kohlburn pointed to the testimony of Dr. Lawrence Zukerberg, an MCL expert from Boston.

Zukerberg testified that benzene causes forms of NHL, such as Kleinaitis's disease, although he admitted there is a dispute about that within in the scientific community.

Kohlburn dismissed the testimony of defense experts, telling jurors that only Zukerberg looked at the actual disease rather than analyzing studies about its possible link to benzene.

Kohlburn hammered at 3M's testing and warning procedures.

He pointed to a 1948 report produced for the oil industry that stated the safest benzene concentration was "zero."

Kohlburn took aim at the defense contention that the traces of benzene in 3M's products were under the levels set by the Occupational Safety and Health Administration (OSHA).

"Complying with OSHA is not an absolute defense," the plaintiff's attorney said. "3M didn't just deprive Veto of the ability to make a choice. They deprived the entire system he was a part of."

The plaintiff's counsel told jurors that his client was seeking damages including $370,288.83 for his past cancer treatment as well as $1,044,511 in lost wages, past and future.

Defense attorney Book told jurors that while 3M was sorry about Kleinaitis's illness, its products had not caused it.

"We say our product didn't contribute. It sure as heck didn't cause," Book said.

Book compared the plaintiff's theory to an elephant crossing a bridge, arguing that it was preposterous.

"Under their theory, if an elephant goes over a bridge and breaks that bridge . . . and elephants have fleas on [them] . . . The fleas' weight ultimately contributed to it . . . The fleas' did it too," Book said. "You've got to decide if someone tries to take advantage of this system. You have to stop it."

Book pointed to what he said was a lack of witnesses to back up the major points of Kleinaitis's case.

He took issue with Kohlburn's characterization of his case.

"He just gets up here and says, 'It's so because I say so,'" Book said of his opponent.

He also stressed Kleinaitis's other benzene exposures, particularly to the benzene contained in cigarettes.

"By now he knows cigarettes have benzene in them and he's still doing it," Book told the jury. "If he really thought benzene causes non-Hodgkin's lymphoma, would he still be doing that?"

Book pointed to the admissions by the plaintiff that he did not always read warning labels and that he sometimes failed to take the proper safety precautions when working with 3M products.

Madison County Chief Judge Ann Callis presided.

Kleinaitis was represented by Kohlburn, Ted Gianaris and others.

3M was represented by Book Jr. of Tekell, Book, Allen & Morris LLP of Houston, Amanda Cialkowski of Nilan Johnson Lewis of Minneapolis and others.

The case is Madison case number 05-L-1050.

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