Benzene plaintiff seeks High Court review, puts chemical in the spotlight.

The wife of a man who died from cancer after he was exposed to benzene at work is taking her husband's case to the U.S. Supreme Court, after the Alabama Supreme Court ruled that his case could not go forward because he missed one of two conflicting statutes of limitations.

According to state court rules, would-be plaintiffs in Alabama must file a lawsuit within two years of toxic exposure, but another rule states that they can sue only after they get sick. Many benzene victims don't become ill for years after exposure, making filing a timely suit under Alabama's rules practically impossible.

Jack Cline was exposed to benzene at his factory job for a company that made railroad wheels in 1999, which led to acute myelogenous leukemia (AML) years later, according to his doctor. Though Cline sued his employer, Ashland, Inc.; Chevron Phillips Chemical LP; and ExxonMobil Corp. (which made and supplied the benzene) within two years of his diagnosis, his case was thrown out because it was not filed within two years of his exposure to the chemical.

Four judges on the Alabama Supreme Court dissented, saying the court's rule created a system in which "no matter when the person attempts to file the action, it is either too soon or too late." (Cline v. Ashland, Inc., 2007 WL 30070 at *18 (Ala. 2007).)

"For years, we had to file suits [for toxic exposure plaintiffs] in other states because of the Alabama rules," said Cline's attorney, Robert Palmer of Birmingham, who is cocounsel in the petition for review. "The [Alabama] court made the contrary law, and the court has the power to correct its own mistakes." The Alabama Supreme Court declined to do so, and Cline's widow is now asking the U.S. Supreme Court to force a change.

Jane Cline, with the assistance of Palmer and the Washington, D.C.-based public-interest law firm Public Justice, has filed a petition for certiorari, saying Alabama's rules violated her husband's constitutional right to due process. Cline claims the Alabama Supreme Court didn't provide a "reasonable" time period in which to file suit and asks "whether a judicial interpretation of a statute of limitations that gives injury victims no time in which to file suit" violates due process.

On the winding road of benzene litigation, a due process challenge is just another curve.

Raphael Metzger of Long Beach, California, cochair of AAJ's Benzene/ Leukemia Litigation Group, called benzene litigation "a growth area for those who have the fortitude." He noted that the cases are unlike asbestos claims "because benzene is not the only chemical that causes leukemia, whereas asbestos is the one and only thing that leads to mesothelioma. So causation is a contested issue in every case."

Benzene is a major commodity chemical; millions of tons are produced every year. Much of that goes into fuels and gasoline, but it's also used in solvents and many other industrial and consumer products.

Most AML suits involving benzene exposure allege the manufacturers of products containing the chemical failed to warn consumers and workers about the health risks and seek damages for pain and suffering. Some cases include a claim for punitive damages.

"These lawsuits seek justice on behalf of people who were trying to do their jobs and were unknowingly exposed to benzene, a known cancer-causing substance," said Charles Paglialunga of Seattle, who represents clients sickened by benzene exposure. "The manufacturers of benzene-containing products need to be held accountable for their actions. People who develop AML from benzene exposure deserve compensation."

A case before the Supreme Court will call more attention to the twists in benzene litigation. Cline "is a very compelling case, and I hope the Court will take it--it's a winner," Metzger said. "You just can't shut victims out of court by saying that by the time the person becomes sick and knows they have an injury, it's too late for them to sue."