In October 2013, Lipsitz, Ponterio & Comerford reached a sizeable settlement for the family of a long-time employee of a local blacktop manufacturer.  This case illustrates the hazards of working with coal tar, a by-product of the coking process.

The client and his wife were childhood sweethearts.  They married in 1962 while the client was on a brief leave from military service.  After his discharge, the couple returned to live on the Erie County farm where he grew up.  Three years later, he took a job at a small plant making and selling pavement sealer.  He worked there until the business closed, approximately 34 years later.  Because he was only 61 years old at that time, and still strong and energetic, he continued to work at various jobs.  Even after he fully retired eight years later, he stayed active, mowing the grass on dozens of acres of the family farm, fishing and tinkering with small engines.

Despite having quit smoking cigarettes at age 25, our client was diagnosed with lung cancer in early 2011, and he died one year later. What caused this hard-working, quiet and careful man to die of lung cancer at age 74?  Over the entire course of his 34 years making blacktop, he was exposed to the fumes of coal tar, the main ingredient in blacktop.

During the first several years of his employment, he hauled shipments of already made blacktop from a plant in New Jersey to his employer’s factory in Western New York.  He made the trip twice a week.  Once his employer decided to manufacture the material, he was put in charge of receiving shipments of hot coal tar, which came in from outside companies three or four times each week.  Each time a new shipment arrived, he had to oversee the process of unloading the hot coal tar into holding tanks and monitoring these holding tanks throughout the week.  He had daily exposure to coal tar fumes that were so strong they would “take your breath away.”

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There were three companies that made the coal tar and sold it to our client’s employer.  These large companies employed thousands of workers in coal tar distilleries throughout North America, and they knew for many years, by 1965 or even earlier, that exposure to coal tar fumes caused lung cancer in humans. These companies never had the common decency to warn the end users of the coal tar, which they sold to businesses all around the country.  Had he been warned, our client would have taken measures to protect himself or, as he testified in this case, he would have looked for work elsewhere.  The large companies that distilled and sold the coal tar to our client’s employer had their own industrial hygienists on staff.  They had their own corporate medical directors.  They conducted research on animals.  They even took measures to protect their own workers by enclosing their production systems.

How did these companies defend themselves in this case? They blamed the client’s doctor for not detecting the lung cancer at an earlier stage. They subjected him to a full day of testimony. But the doctor was blameless.  His records were thorough, and nothing in them indicated the slightest evidence of neglect.  When the cancer was detected, the doctor sent our client directly to Roswell, where he received compassionate care.

When they realized that they could not place the blame on the doctor, they made the argument that coal tar fumes do not cause lung cancer in humans.  This, however, was belied by earlier studies of their own tar distillery workers who were developing lung cancer at significantly increased rates.  They also tried to blame our client’s employer for failing to tell him about the hazard of developing lung cancer, a hazard that these companies studiously avoided communicating to their customers.  And, finally, they tried to blame our client, whose formal schooling ended in the tenth grade.

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There are more than 10,000 unregulated chemicals, which American workers are exposed to every day.  If you suspect that you are suffering from a disease related to your work, call Lipsitz, Ponterio & Comerford for a free consultation.