Scott R. Frieling
Benzene, Asbestos, PCBs, Pesticides, and Toxic-Exposure Litigation
With every meal they were eating PCBs that had permeated the entire environment.
Twenty-Four Parts per Million-Years
From 1981 to 1989 Donald Walter Schultz painted equipment, floors, walls, ceilings and pipes in the plants of American Motors Corporation, which Chrysler acquired in 1987. In November 2005 he was diagnosed with acute myeloid leukemia, and in September 2006 he died. His widow, Joann, sued Akzo Nobel Paints in the Eastern District of Wisconsin over the benzene in its paints, and the dose he had breathed two decades earlier was rebuilt from the work itself. The industrial hygienist Dr. Stewart interviewed Schultz's former coworkers and read their depositions, took the composition of the paints from the material safety data sheets Akzo had produced, and entered the figures in a Monte Carlo model — a risk-assessment method the Environmental Protection Agency has endorsed, built to account for the variation in exposure from one period and one plant to another. Revised twice, the model put Schultz's exposure at 24 parts-per-million years of benzene, the equivalent of one part per million every year for twenty-four years. The oncologist Dr. Gore testified that after a fifteen-year latency period a person exposed to 11 ppm-years or more stands at eight times the general population's risk of the disease, and he weighed the other possible causes, smoking among them. Judge Rudolph T. Randa found the oncologist's testimony unreliable and granted Akzo summary judgment.
Scott R. Frieling took business and professional-accounting degrees from the University of Texas in 1996 and his law degree there, with high honors, in 1999, and since then has represented people exposed to toxic chemicals — dioxin, benzene, asbestos, PCBs, pesticides, and lead, chromium and arsenic — now at Allen Stewart, P.C., in Dallas. With Steve B. Jensen of the firm and Steven R. Penn of Racine he represented Joann Schultz on the appeal. On June 26, 2013 the Seventh Circuit, in an opinion by Judge Diane P. Wood for a panel with Judges William J. Bauer and Joel M. Flaum, reversed the judgment for Akzo and remanded the case. Under Rule 702, the court wrote, a judge examines an expert's principles and methods, and “the key to the gate is not the ultimate correctness of the expert's conclusions”; Dr. Gore had adequately considered the alternative causes, and a competing study about the threshold left the district court no obligation to choose between studies at the gatekeeping stage. Of the reconstruction it said: “Had Dr. Stewart calculated that Schultz's exposure was only 5 ppm-years, we would have a different case.”
Five Bodies of Evidence
Brian Milward, a refrigeration technician who alleged exposure to benzene in his work from 1973, was diagnosed in October 2004 with acute promyelocytic leukemia, a rare subtype of acute myeloid leukemia, and in October 2007 he and his wife, Linda, sued the makers of benzene-containing products in the District of Massachusetts. Frieling was among the lawyers who built the district-court record. The Milwards' toxicologist, Dr. Martyn Smith, reasoned from five bodies of evidence: that benzene causes acute myeloid leukemia as a class, with a relationship between dose and response; that the subtypes likely share an origin in a damaged stem cell; that benzene's metabolites damage chromosomes at the stem-cell level; that they inhibit topoisomerase II, as the chemotherapy drugs known to cause the subtype do; and that a small set of studies reported an increased risk among exposed workers. After a four-day evidentiary hearing in 2009, Judge George A. O'Toole Jr. excluded the testimony and entered judgment for the defendants. Steve Baughman Jensen of Allen Stewart argued the appeal, and on March 22, 2011 the First Circuit, in an opinion by Chief Judge Sandra L. Lynch, reversed and remanded. “The hallmark of the weight of the evidence approach is reasoning to the best explanation for all of the available evidence,” the court wrote, and “It is up to the jury to decide whether to accept his opinion that exposure to benzene can cause APL.”
Brakes and Clutches
For more than three decades Roland Leo Grenier Sr. worked as an automobile mechanic, grinding, removing and replacing brakes and clutches whose friction materials contained chrysotile asbestos; in 2005 he was diagnosed with diffuse malignant mesothelioma. Frieling and Rick Nemeroff tried his claims against General Motors, Ford and other manufacturers in the Superior Court in New Castle County, Delaware, over three weeks of pathology, epidemiology, product identification, occupational testimony, the composition of older friction products and the release of respirable fibers during removal and cleaning. On March 2, 2007, after about ten hours of deliberation, the jury returned a unanimous verdict of $2 million, assigning 70 percent of the fault to General Motors, 16 percent to Ford and 2 percent to each of seven other companies. The manufacturers challenged the admission of Grenier's causation experts. On February 4, 2009 the Delaware Supreme Court returned the case to the trial court to reconsider and explain its ruling; the trial court detailed the evidence and the experts' reasoning and again admitted the testimony, and on August 24, 2009, in an opinion by Justice Carolyn Berger, the Supreme Court affirmed.
Cooper Tire, Texarkana
From the 1970s into the 2000s Gary and Randy Eaves worked, on and off, at the Cooper Tire & Rubber plant in Texarkana — Gary hauling and handling green tires and later running the green-tire spray booth in the curing department, Randy operating a truck-tire bias machine and building first-stage radial tires — with a benzene-containing rubber solvent that Union Oil manufactured; the plant's workers were never advised to wear respirators or protective clothing. Each brother was diagnosed with a blood cancer at fifty-nine: Gary with non-Hodgkin's lymphoma, Randy, in 2015, with myelodysplastic syndrome that progressed to acute myelogenous leukemia. Gary died in 2015 and Randy in 2018. Their families sued Ashland, Union Oil and other companies in Contra Costa County, California, where Chevron, which merged with Unocal, the former Union Oil, has its headquarters. Frieling tried the case with Mary Alexander and Rajeev Mittal for more than four weeks, through product identification, industrial hygiene, warnings, exposure pathways and medical causation — what each brother did, how the supplied solvent entered the work and how long the contact continued. On March 29, 2019, after three days of deliberation, the jury found that Union Oil had known its solvent contained benzene and had failed to warn the brothers, awarded the families $21,385,000 and assigned Union Oil 58 percent of the responsibility.
Nearly Forty Years
In the Superior Court in Norfolk County, Massachusetts, Frieling and James Piel represented families who lived near a multi-purpose manufacturing site where, they alleged, several companies had dumped polychlorinated biphenyls for nearly forty years. The PCBs had reached a nearby creek; wind carried contaminated dust into the families' homes; children played on and walked through the site, and community functions were held on the property. Members of the families developed several types of cancer and other long-term illnesses. In Good v. TDL, Inc., No. 06-01687, the families obtained settlements from several of the defendants.
Ready-to-Use
Kelly Martel used Ready-to-Use Roundup at three properties from 1998 through 2014 and in 2020 was diagnosed with follicular lymphoma, a form of non-Hodgkin lymphoma. Her suit in the Philadelphia Court of Common Pleas, filed on September 23, 2021, alleged that the glyphosate Monsanto made and the surfactant POEA made by Nouryon's predecessors together increased the product's toxicity. Frieling joined John Boundas, Walt Cubberly, Margret Lecocke and Conor Cathey of Williams Hart & Boundas and Rosemary Pinto of Feldman & Pinto for the trial, which ran sixteen days. On December 6, 2023 the jury awarded $500,000 in compensatory damages and $3 million in punitive damages and allocated 92.5 percent of the fault to Monsanto and 7.5 percent to Nouryon; with $44,363.01 in delay damages, judgment was entered on April 12, 2024 for $3,544,363.01. On June 25, 2025 the Superior Court of Pennsylvania affirmed, in a memorandum by Judge Dubow for a panel with Judges Stabile and Sullivan: Martel's failure-to-warn claims survived federal preemption, the refusal to move the case to Westmoreland County stood, the punitive award of six times the compensatory damages was upheld, and the testimony of her experts, Drs. Levy and Allen, was enough for the jury to find Roundup a substantial factor in her lymphoma.
