by Christopher M. McDonald (Orange Office)

CaliforniaOn June 10, 2011, the United States Department of Health and Human Services ("HHS") released the 12th Report on Carcinogens ("RoC"), a public health and scientific informational document which identifies substances, agents, compounds and exposure conditions that are known or reasonably anticipated to cause cancer in humans. In this report, formaldehyde, a commonly used chemical, was identified as a "known human carcinogen". Formaldehyde was first identified in 1981 as a substance that was "reasonably anticipated to be a human carcinogen" based on laboratory studies that showed it caused nasal cancer in experimental animals. The change in the status of formaldehyde to a "known human carcinogen" was based on additional recently published epidemiological human studies that show that individuals with higher exposure levels are at an increased risk for certain cancers, including myeloid leukemia, nasal cancer and throat cancer.

Formaldehyde is a strong-smelling, flammable chemical that is a colorless gas at room temperature. However, it is often found in a liquid form mixed with water and alcohol and known as formalin. skull_danger_sign_w_clip4Most formaldehyde produced in the United States is used to manufacture resins in plastics and in adhesives for pressed wood products, including particle board, furniture, paneling and cabinets. It is also used in mortuaries, medical laboratories and consumer products. In addition, it is a by-product of combustion. The highest levels of exposure to formaldehyde are typically found in occupational settings associated with woodworking, furniture and plastic manufacturing, embalming and laboratory processing. Occupational exposure occurs generally through inhalation. Formaldehyde is poorly absorbed through the skin.

A number of plaintiff-related law firms now advertise they are litigating cases involving workers exposed to formaldehyde who have developed myeloid leukemia and cancers of the nose and throat. Some of the most highly publicized recent formaldehyde-related litigation involved trailers distributed by the Federal Emergency Management Agency after Hurricane Katrina that allegedly contained a variety of toxic chemicals, including formaldehyde.

Will the recent designation of formaldehyde as a "known human carcinogen" result in an increase in the number of toxic tort lawsuits throughout the country? It is anticipated that plaintiff's attorneys will use the re-designation of formaldehyde as a "known human carcinogen" in an effort to support their claims that formaldehyde caused and/or contributed to the cause of their clients' myeloid leukemia, nose cancer or throat cancer. However, we do not anticipate a dramatic increase in filings relating to formaldehyde based solely on its revised classification. This is due in part to the fact that the re-classification by the RoC will not diminish the ongoing duty by plaintiffs to prove causation of their claims. An analysis of the RoC reveals that is chris-m-headshot-web-namedoes not provide quantitative risk assessments for formaldehyde, resulting in an absence of exposure conditions demonstrating a risk of cancer to humans. As a result, despite the fact that formaldehyde may now be officially classified as a carcinogen by the RoC, proving it actually caused injury in any given case is still a burden resting with the plaintiff's attorneys filing these claims.

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