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The closer you look at lawsuits involving arsenic-treated wood, the more paradoxes you find. Though it’s sometimes billed as the hot new source of products liability litigation, the product has been on the market since 1938, and lawsuits were filed in the ’80s. Some lawyers suggest it’s the “next asbestos,” but only about 35 cases have been tried or settled, and none has brought plaintiffs more than six figures. While lawyers speak of thousands of potential cases, fewer than 10 are pending and no class actions have ever been certified. Last month, the first full effort to certify a class was denied. Nothing about chromated copper arsenate is simple, and the name is the least of it. Known as CCA, it is a chemical preservative that protects wood from insects and rot. After it’s processed with the chemical, the lumber is sometimes called green or salt-treated or pressure-treated wood. It’s used in everything from decks to picnic tables to swing sets. Starting with telephone poles in the 1930s, its use grew exponentially in the 1980s. Last year, sales reached almost 7 billion board feet worth about $4 billion. All agree chromated copper arsenate is an effective preservative. The dispute is over the possible danger in its chemicals, especially arsenic. Plaintiffs’ lawyers contend many people have developed symptoms of arsenic poisoning through contact with treated wood. The Environmental Protection Agency (EPA) has found that arsenic gets into the soil. Defense lawyers point out that arsenic is also present in food and water. “I don’t think there’s anything inherently dangerous in the product,” said Robb Patryk, a partner at New York’s Hughes Hubbard & Reed who represents Chemical Specialties Inc., a defendant in the class action denied certification last month. “You can hurt yourself with a Bic pen, if you misuse it.” Industry critics received a boost last month when the Consumer Products Safety Commission released a report saying that children face increased risk of bladder and lung cancer through contact with wooden playground equipment. It recommended they wash their hands after playing. A year earlier, the EPA announced that the industry was voluntarily withdrawing chromated copper arsenate from the consumer market and that in 2004 the agency would no longer permit new residential use. Consumer groups were disappointed, however, that the agency did not conclude the wood poses “unreasonable risk” to the public or the environment and did not recommend replacing products already in use. The plaintiffs in the abortive class action were consumers from Florida, Michigan and Washington seeking compensation to replace soil and decks and other structures. They didn’t claim they had been made ill by the chemical. Their lawyer, Gary Graifman of Chestnut Ridge, N.Y.’s Kantrowitz, Goldhamer & Graifman, said a lawyer would lose money if these claims were filed individually. The defendants are Home Depot Inc., the American Wood Preservers Institute and three companies that process wood. Judge Donald Middlebrooks denied certification primarily because the claims lacked the required “typicality.” Citing the “umpteen uses of treated wood and the diversity of climates to which the wood is exposed,” he found that there were too many individual issues to resolve. Graifman is studying how to redefine the class. Jacobs v. Osmose, No. 01-944-CIV (S.D. Fla.). Class actions are pending in Alabama and Louisiana, as is a mass tort in Mississippi. Defense lawyers suggested judges in those cases may follow Middlebrooks’ lead. “Some people want to say that this is the next asbestos, and it just isn’t,” said Brent Austin, a partner at Chicago’s Wildman, Harrold, Allen & Dixon who represents wood-processing companies Arch Wood Protection and Osmose. There are thousands of individual asbestos cases, he said, and he knows of only nine individual cases. Even more important: “Asbestos has an identified signature disease — mesothelioma.” Chromated copper arsenate doesn’t. Plaintiffs’ lawyer David McCrea said that’s part of the problem. “You can’t report to your doctor what you don’t know,” said McCrea of Bloomington, Ind.’s McCrea & McCrea. “All these people getting injured, they don’t have a clue” about the cause. Few doctors think to test for arsenic poisoning, he said. McCrea won the first plaintiff’s verdict in a treated-wood case. Jimmy Sipes worked for the forest service, where he occasionally sawed wood to make picnic tables. After 10 days of sawing in 1983, he began vomiting blood. He slowly recovered and didn’t have a recurrence until a year later, when he was again sawing wood. As he was rushed to the hospital, he told his wife: “Find out what’s in that wood!” Tests of his hair and fingernails found 100 times the normal level of arsenic, McCrea said. In 1987, a jury awarded him $100,000. Sipes v. Osmose, 546 N.E.2d 1223 (Ind. Sup. Ct. 1989). McCrea won two more jury verdicts and settled three cases. The most serious injuries he’s seen were caused by splinters, sawdust and fumes from burning wood. Arsenic poisoning causes a host of ailments, he said, including nerve, liver and digestive disorders. His biggest criticism of the industry is that it’s never warned the public of the dangers. Defense lawyer Patryk said companies have provided consumers written warnings for years, advising that they use gloves and avoid burning the wood. And he hasn’t seen a crush of people replacing swing sets and seeking refunds. “To me,” he said, “this was something seized upon by the plaintiffs’ bar, and I don’t see the groundswell of support from the plaintiffs.”

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