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Smith v. Ashland, Inc

Smith v Ashland, Inc 2024 NY Slip Op 31116(U) April 3, 2024 Supreme Court, New York County Docket Number: Index No. 156780/2017 Judge: Lynn R. Kotler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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Kotler, J.:

This action arises from plaintiffs decedent's exposure to products containing

benzene while working as a mechanic. Specifically, plaintiff alleges that toxic exposure

to benzene-containing products caused the decedent, Mark Smith, to contract

Myelodysplastic Syndrome ("MDS") and subsequently pass away in 2018. Plaintiff is

Sandra Smith, suing individually and as Executrix of the Estate of Mark Smith,

deceased, for negligence, breach of warranty, strict producfs liability, fraudulent

misrepresentation, loss of consortium, wrongful death and a claim under the New York

Survival Act. There are seven motions for summary judgment presently pending, which

are hereby consolidated for the court's consideration and disposition in this single

decision/order. At the outset, motion sequence 37 has been withdrawn since it was

orally argued (see NYSCEF Doc. No. 1212). The remaining motions are sequences 38-

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40 and 42-44.

In motion sequence 38, defendant United States Steel Corporation {"US Steel")

moves for partial summary judgment dismissing plaintiff's claims against it for fraudulent

misrepresentation and breach of express and implied warranties. Plaintiff opposes US

Steel's motion with respect to her fraud claim but does not oppose dismissal of her

warranty claims against US Steel.

In motion sequence 39, defendant CA Acquisition LLC d/b/a Chicago Aerosol

("CA") moves for summary judgment dismissing plaintiff's claims for gross negligence,

breach of warranty, fraudulent misrepresentation and punitive damages against it.

Plaintiff opposes that motion.

In motion sequence 40, defendants Chevron U.S.A. Inc. {"Chevron") and Union

Oil Company of California, d/b/a Unocal ("Unocal") move for summary judgment,

arguing that plaintiff cannot demonstrate that the decedent was exposed to Chevron

gasoline supplied to Gulf Oil Limited Partnership ("Gulf') or any other product

manufactured by Unocal containing benzene. Plaintiff does not oppose Chevron's

motion but contends that there is sufficient evidence that the decedent was exposed to

benzene contained in Safety-Kleen 105 solvent ("Safety Kleen"), and that Unocal was a

"main" supplier of benzene-containing mineral spirits comprising Safety Kleen.

In motion sequence 42, defendant The Berkebile Oil Company, Inc. ("Berkebile")

moves for partial summary judgment dismissing Plaintiff's claims for gross negligence,

breach of warranty, fraudulent misrepresentation, and punitive damages. Plaintiff

opposes that motion.

In motion sequence 43, defendant Sunoco (R&M) LLC {"Sunoco") moves to

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dismiss plaintiff's claims against it on the grounds that there is no evidence the

decedent was exposed to a solvent manufactured, supplied or distributed by Sunoco.

Plaintiff opposes the motion and contends that "[t]here is ample evidence that Mr. Smith

was exposed to benzene from Sunoco's mineral spirits supplied to Safety-Kleen

Systems, Inc. (hereinafter "Safety-Kleen") and to Sunoco gasoline delivered to Mr.

Smith's employer, Classic Auto."

Finally, in motion sequence 44, defendant Illinois Tool Works, Inc. ("ITW') moves

for partial summary judgment dismissing plaintiff's claims against it related to the use of

Permetex products and dismissing all of plaintiff's claims for breach of warranty,

fraudulent misrepresentation and punitive damages. Plaintiff does not oppose dismissal

of her claims related to Permetex products nor her breach of warranty claims, but

otherwise opposes the motion.

Facts relevant to all motions

The decedent was a mechanic on Long Island who worked at various service

stations from approximately 1965 through 2016. Specifically, the decedent worked at his

uncle's service station, Major Texaco, from 1978 to 1980, at Major Mobil, a service

station he operated from 1980 to 2003, and at Classic Auto from 2008 to 2016. During

that time, plaintiff alleges that the decedent was exposed to benzene-containing

products which led to him contracting MOS, which he was diagnosed with on January

25, 2016 and which caused his death on June 7, 2018. Plaintiff contends that the

defendants failed to warn the decedent about the known dangers of benzene-containing

products.

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Previously, plaintiff and the decedent brought an action for the same alleged

injuries and tortious activity against some of the same defendants in the Philadelphia

Court of Common Pleas on March 2, 2017 (the "Pennsylvania Action"). Thereafter,

plaintiff and the decedent brought this action on July 27, 2017. After several defendants

were dismissed in the Philadelphia Action on jurisdictional grounds, plaintiff stipulated to

dismissal of the Philadelphia Action and plaintiff and her decedent filed a Second

Amended Complaint in this action which added defendants dismissed from the

Pennsylvania Action.

After the decedent passed away, plaintiff filed a Third Amended Complaint on

September 6, 2018 which names twenty-four defendants. The Third Amended

Complaint asserts seven causes of action: (1) Negligence/Gross Negligence; (2) Breach

of Warranty; (3) Strict Products Liability; (4) Fraudulent Misrepresentation; (5) Loss of

Consortium; (6) Wrongful Death; and (7) a claim under the New York Survival Act. Issue

has been joined as to all the moving defendants, and the motions were timely brought

after note of issue was filed on September 30, 2022. Therefore, summary judgment

relief is available.

Applicable standard of law

On a motion for summary judgment, the proponent bears the initial burden of

setting forth evidentiary facts to prove a prima facie case that would entitle it to

judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical

Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

If the proponent fails to make out its prima facie case for summary judgment, however,

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then its motion must be denied, regardless of the sufficiency of the opposing papers

(Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062

[1993]).

Granting a motion for summary judgment is the functional equivalent of a trial,

therefore it is a drastic remedy that should not be granted where there is any doubt as

to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]).

The court's function on these motions is limited to "issue finding," not "issue

determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [19571).

Motion sequence 38

Plaintiff opposes US Steel's motion with respect to her fraud claim but does not

oppose dismissal of her warranty claims against US Steel. Therefore, at the outset, US

Steel's motion is granted to the extent that plaintiff's warranty claims against US Steel

are severed and dismissed. With respect to US Steel, Plaintiff asserts that the decedent

worked with Liquid Wrench, a product manufactured by defendant Radiator Specialty

Company ("RSC"), which allegedly contained raffinate supplied by US Steel as an

ingredient At his deposition, the decedent testified that he used Liquid Wrench as a

penetrating oil from approximately the late 1960s through 2015.

Plaintiff claims that "defendants acted to manipulate public information and

knowledge in order to give the impression that benzene and benzene-containing

products were safe, or did not present the full scope of danger that they did, and to

prevent the disclosure of the information available to the defendants regarding the true

and full nature of the health hazards of benzene and benzene-containing products."

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Meanwhile, US Steel maintains that plaintiff's fraud claim against it should be dismissed

because US Steel did not owe plaintiff a duty to disclose the allegedly withheld

information to RSC about the safety of raffinate.

"The essential elements of a cause of action for fraud are 'representation of a

material existing fact, falsity, scienter, deception and injury"' (New York Univ. v.

Continental Ins. Co., 87 NY2d 308 [1995], quoting Channel Master Corp. v. Aluminum

Ltd. Sales, 4 NY2d 403 [1958]). A cause of action for fraudulent concealment requires,

in addition to the four elements of fraudulent misrepresentation, "an allegation that the

defendant had a duty to disclose material information and that it failed to do so"

(Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 [2011] (citations omitted]).

There is interplay between the duty to warn and fraudulent concealment, where

the latter may give rise to the former (see i.e. Standish-Parkin v. Lorillard Tobacco Co.,

12 AD3d 301 [1st Dept 2004] [" ... in her first cause of action for failure to warn ...

(p]laintiff presented sufficient evidence to raise triable issues of fact as to the state of the

public's common knowledge of the risks of cigarette smoking prior to 1969, and whether

decedent had relied upon defendants' various allegedly fraudulent misrepresentations

and concealments of the truth concerning the safety and health risks of cigarettes"]).

"[A] manufacturer has a duty to warn against latent dangers resulting from foreseeable

uses of its product of which it knew or should have known. Additionally, the

manufacturer must warn of dangers arising from the product's intended use or a

reasonably foreseeable unintended use. The manufacturer's duty also includes a legal

obligation to issue warnings regarding hazards arising from foreseeable uses of the

product about which the manufacturer learns after the sale of the product. The duty

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extends to the original or ultimate purchasers of the product, to employees of those

purchasers, and to third persons exposed to a foreseeable and unreasonable risk of

harm by the failure to warn" (In re New York City Asbestos Utig., 27 NY3d 765, 788-89

[2016] [internal citations omitted]).

It is true that in the absence of a fiduciary relationship between parties, there is

no duty to warn about inherent and foreseeable risks (Blake v. Ford Motor Co., 41 AD3d

150 [1st Dept 2007] citing McGarr v. Guardian Life Ins. Co. of America, 19 AD3d 254

[1st Dept 2005] and Elghanian v. HaNey, 249 AD2d 206 [1st Dept 1998}). However,

plaintiff maintains that she properly asserted a fraudulent misrepresentation claim, not

merely omissions claim, which the court agrees with (see third amended complaint,

paragraphs 111, 143 and 146). Substantively, plaintiff points to evidence that RSC

requested information regarding the health hazards of raffinate and evidence that US

Steel potentially misrepresented the amount of benzene contained in raffinate. On these

facts, the court finds that plaintiff has at least raised a triable issue of fact sufficient to

defeat US Steel's motion to dismiss the fraud claim based upon fraudulent

misrepresentation.

Plaintiff further argues that a fraud claim based on omission also lies against US

Steel. US Steel disagrees and contends that such a claim is unavailing absent a

fiduciary relationship between US Steel and RSC. As opposed to an affirmative

misrepresentation, a fraud cause of action can also be predicated upon a duty to

disclose information and an omission. A fiduciary relationship can give rise to the duty to

disclose, which does not ordinarily exist between parties engaged in an arm's-length

transaction (Dembeck v. 220 Cent. Park South, LLC, 33 AD3d 491 [1 st Dept 2006]).

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However, the duty to disclose may also be predicated upon the "special facts" doctrine,

"where one party's superior knowledge of the essential facts renders a transaction

without disclosure inherently unfair" (Swersky v. Dreyer and Taub, 219 AD2d 321 [1 st

Dept 1996]).

In Swersky, the First Department held that there was an issue of fact as to

whether the special facts doctrine could be applied to save an omission-based fraud

claim. The Swersky Court explained that a "disparity in the level of information available

to [one party], but not to [the other], places this case within the ambit of the 'special

facts' doctrine, and ... whether plaintiffs could have through 'the exercise of ordinary

intelligence' independently ascertained that [information]" must also be determined.

Here, US Steel has shown that it did not exclusively possess knowledge vis-a-vis

RCS and further that RCS could have obtained knowledge of the dangers of Benzene-

containing compounds and products based on information that was available to the

general population and/or otherwise ascertainable by RCS' own employees. The court

disagrees with plaintiff that she has raised a triable issue of fact sufficient to defeat US

Steel's motion on this point. Accordingly, the balance of US Steel's motion for summary

judgment dismissing plaintiff's fraud claim based upon omission is granted and said

claim is severed and dismissed.

Motion sequences 39 and 42

Motion sequence 39 and 42 are interrelated, since the movant in motion

sequence 39, CA, manufactured a product called 2 Plus 2 Gum Cutter ("Gum Cutter")

for movant in motion sequence 42, Berkebile, which sold said product. Therefore, the

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court will consider them together. CA maintains that certificates of analysis for

component solvents used in the manufacture of Gum Cutter reveals that it contained

only "miniscule" amounts of benzene which thus required no warning. In turn, plaintiff

maintains that the motions are procedurally improper, since movants have raised facts

and arguments on reply for the first time, depriving plaintiff an opportunity to oppose

same. Further, plaintiff's counsel points to the certificates of analysis, claiming they do

not support CA and Berkebile's arguments and further that CA has failed to present

expert testimony establishing that the Gum Cutter was not dangerous of that the level of

benzene in the product otherwise complied with OSHA requirements.

The court cannot overlook the procedural issue raised by plaintiff on these

motions and will grant plaintiff an opportunity to submit a surreply. While counsel for the

movants asserted that the evidence submitted on reply was merely responsive to the

arguments raised by plaintiff in opposition, given the drastic effect of the relief

requested, the court cannot deprive plaintiff an opportunity to develop her record as to

whether the Gum Cutter or its components contained a sufficient amount of benzene

thereby triggering a reporting and/or labeling obligation. Therefore, the court will grant

plaintiff 30 days from notice of entry of this order to submit a surreply and will grant CA

and Berkebile an opportunity to submit a surreply within 30 days thereafter. The motions

will be calendared for submission of papers, only, on June 14, 2024. No appearances.

Motion sequence 40

At the outset, motion sequence 40 by Chevron and Unocal is granted to the

extent that plaintiff's claims against Chevron are severed and dismissed without

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opposition. The court turns to the balance of the motion, with respect to Unocal, which

plaintiff opposes. Unocal argues that there is no evidence that plaintiff's decedent was

exposed to Safety Kleen containing mineral spirits supplied by Unocal. In opposition,

plaintiff argues that Unocal has inappropriately attempted to shift its burden on this

motion. The court disagrees with plaintiff.

Plaintiff's decedent testified that he used Safety Kleen to clean parts as a

mechanic during his career. Further, Unocal was a supplier of mineral spirits/105 solvent

for use in Safety Kleen during the time plaintiff's decedent used the product. Plaintiff's

counsel points to deposition testimony given by a Safety Kleen witness, James Breece,

on January 28, 2014, admitting that Unocal was a supplier of mineral spirts for the

subject product from 1979 until at least 1993. Plaintiff's counsel further attempts to

characterize Unocal as a "main" supplier based on Breece's deposition testimony.

The facts here are more similar to those in Schiarldi v. U.S. Min. Prods. (194

AD2d 482 [1st Dept 1993]), than they are not. In that case, the First Department held

that the plaintiff in that case had failed to set forth evidentiary facts showing the

circumstances of his exposure to asbestos-containing product or its likelihood. Here,

while plaintiff's decedent testified that he was exposed to Safety Kleen and some

batches of Safety Kleen were comprised of Unocal's benzene-containing mineral spirits,

evidence of a nexus between Unocal's product and plaintiff is absent here. Therefore,

just as in Schiarldi, there is no evidence showing the circumstances or likelihood of

plaintiff's decedent's exposure to Unocal's particular product. Plaintiff's counsel's

attempt to paint Unocal as a "main" supplier is not substantiated by admissible

evidence. Indeed, Breece's deposition testimony merely listed Unocal as one of several

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companies which Safety Kleen purchased mineral spirits from, including Amoco,

Sunoco, Exxon, Shell, Hunt Refining and "probably others ... " On these facts, a jury

verdict against Unocal based upon plaintiff's decedent's alleged exposure to Unocal's

mineral spirits would be based upon rank speculation that plaintiff came into contact

with Unocal's mineral spirits. Therefore, plaintiff's claims against Unocal must be

dismissed as a matter of law.

Accordingly, the balance of motion sequence 40 for summary judgment

dismissing plaintiff's claims against Unocal is granted.

Motion sequence 43

Sunoco also argues, inter alia, that plaintiff cannot establish that her decedent

used Safety Kleen which was comprised of mineral spirits supplied by Sunoco.

However, in contrast to Unocal's motion, plaintiff has pointed to evidence that Sunoco

supplied mineral spirits to Safety-Kleens' Clayton, New Jersey facility, which in turn

supplied Safety-Kleen's North Amityville, New York branch, which then serviced

locations where plaintiff's decedent worked. Sunoco has otherwise failed to

demonstrate that its mineral spirits were not contained in Safety-Kleen products used by

plaintiff's decedent and therefore has not met its burden on this motion. Relatedly, the

court rejects Sunoco's argument that plaintiff's decedent's testimony lacked sufficient

proof that he used Safety-Kleen branded parts washers. His testimony is sufficient to at

least raise a triable issue of fact on this point.

Plaintiff further contends that her decedent was also exposed to benzene

contained in Sunoco's gasoline delivered to his employer, Classic Auto. The decedent

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specifically testified that when he pumped gas, gasoline would get on his skin and that

he breathed in gasoline vapors from the gas hoses. He further testified that he was

exposed to Sunoco's gasoline on a near-daily basis when it was delivered to service

stations and transferred to underground storage tanks as well as when he changed

pump filters and cleaned his tools and hands. On these facts, Sunoco'sliability may be

reasonably inferred since plaintiff has presented sufficient evidence to establish the

decedent's regular use and exposure to gasoline which Sunoco supplied to Classic Auto

(see i.e. Reid v. Georgia-Pacific, Corp., 212 AD2sd 462 [1st Dept 1995]).

Finally, Sunoco argues that plaintiff cannot establish "specific causation". There is

no dispute on this record that exposure to a certain amount of benzene for a certain

period of time can cause MOS. Thus, it is Sunoco's burden to show that its products

which plaintiff claims her decedent was exposed to contained an insufficient amount of

benzene to cause and/or contribute to the decedent's MOS (see i.e. Dyer v. Amchem

Prods. Inc., 207 AD3d 408 [1st Dept 2022]). Sunoco has wholly failed to meet this

burden.

Assuming arguendo that Sunoco had met its burden on this point, plaintiff has at

least raised a triable issue of fact through an affidavit from its own expert, Robert

Laumbach, M.D., M.P.H., C.I.H., D.A.B.T., a medical doctor specializing in internal

medicine and occupational/environmental medicine with over twenty-five years of

experience in the analysis of adverse health effects of occupational and environmental

agents. Not only does Dr. Laumbach note that benzene "is recognized as a human

carcinogen (cancer-causing agent) by all major agencies and authorities that regulate or

produce guidelines to prevent and control cancer from occupational and environmental

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chemicals", but also that "it is well established and generally accepted that benzene

causes MOS" and that "there is no threshold below which benzene does 1_1ot increase

the risk of leukemia and lymphoma. In general, the dose-response curve between

benzene exposure and leukemia risk appears to be linear at very low ppm-yr doses." Dr.

Laumbach further provides analysis of the risks associated with estimates of benzene-

exposure that plaintiff's decedent testified to, thereby demonstrating specific causation

(see i.e. Come/Iv. 360 West 51st Street Realty, LLC, 22 NY3d 762, 785 [2014]). On this

record, Dr. Laumbach's opinions are sufficient to at least raise a triable issue of fact on

causation.

Accordingly, Sunoco's motion is denied in its entirety.

Motion sequence 44

At the outset, ITW's motion is granted without opposition to the extent that

plaintiff's claims related to ITW's Permetex products as well as plaintiff's claims for

breach of warranty against ITW are severed and dismissed. The balance of the motion

seeking dismissal of plaintiff's fraudulent misrepresentation claim and claim for punitive

damages remains.

ITW and its predecessors manufactured and/or distributed a Gumout carburetor

cleaner which came in aerosol cans since at least 1980. Testimony and evidence

previously elicited in this case shows that plaintiff's decedent used Gumout products,

from 6-Bx a month up to 2-3x a week at various times, while working at Major Texaco,

Major Mobil and Classic Auto.

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ITW first argues that plaintiff lacks sufficient evidence that ITW made a false

representation to her decedent. Contrary to ITW's contention, plaintiff has in fact pointed

to sufficient evidence to raise a triable issue of fact on this point, to wit, warning labels

which did not list benzene as a component or that the benzene-containing product could

cause cancer, MSDS sheets, an internal audit by Penzzoil, the manufacturer of Gumout

products prior to ITW's acquisition of the brand in 2010, and a 1980 internal

memorandum from the federal government noting benzene content contained in

Gumout Jet Spray. While ITW argues that the evidence cited by Plaintiff, "at best, could

only relate to a negligent failure to warn claim, not one for fraudulent misrepresentation",

the court disagrees. On this record, there is sufficient evidence from which a reasonable

fact finder could conclude that ITW's predecessor, the manufacturer of Gumout

products, had a duty to warn of the risks of exposure to its benzene-containing products

and the warnings that were actually provided were insufficient based upon what ITW's

predecessors knew or should have known (see i.e. In re New York City Asbestos Litig.,

27 N.Y.3d 765, 788-89 [2016]). Further, plaintiff's decedent specifically testified that he

read product labels, especially if they had warning signs, thereby demonstrating

justifiable reliance.

To the extent that ITW seeks to avoid liability as a successor, the court rejects

this argument. Generally, a corporation which acquires the assets of another is not

liable for the predecessor corporation's torts (Semenetz v. Sherling & Walden, 7 NY3d

194 [2006]). There are, however, exceptions to this rule, which "arise where a successor

corporation expressly or impliedly assumes its predecessor's tort liability; or there is a

consolidation or merger of seller and purchaser; or the purchasing corporation is a mere

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Accordingly, the balance of ITW's motion is denied.

Conclusion

In accordance herewith, it is hereby

ORDERED that motion sequence 37 is withdrawn; and it is further

ORDERED that motion sequence 38 is granted to the following extent: [1]

plaintiff's breach of warranty claims against defendant United States Steel Corporation

are severed and dismissed; and [2] plaintiffs fraud claim based upon omission is

severed and dismissed; and [3] the Clerk is directed to enter judgment accordingly; and

it is further

ORDERED that the balance of motion sequence 38 is denied; and it is further

ORDERED that motion sequences 39 and 42 are adjourned for submission of

papers as follows:

[1] plaintiff shall submit a surreply within 30 days from notice of entry of

this decision/order;

[2] CA and Berkebile shall submit a surreply within 30 days thereafter; and

[3]motion sequence numbers 39 and 42 are restored to the calendar for

submission of papers, only, on June 14, 2024. No appearances;

And it is further ORDERED that motion sequence 40 is granted to the extent that

plaintiff's claims against defendant Chevron U.S.A. Inc. and Union Oil Company of

California, d/b/a Unocal are severed and dismissed and the Clerk is directed to enter

judgment accordingly; and it is further

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ORDERED that motion sequence 43 is denied in its entirety; and it is further

ORDERED that motion sequence 44 is granted only to the extent that plaintiff's

claims related to defendant Illinois Tool Works, lnc.'s Permetex products as well as

plaintiff's claims for breach of warranty against Illinois Tool Works, Inc., are severed and

dismissed without opposition and the Clerk is directed to enter judgment accordingly;

and it is fur:ther

ORDERED that the balance of motion sequence 44 is denied.

Any requested relief not expressly addressed herein has nonetheless been

considered and is hereby expressly denied and this constitutes the Decision and Order

of the court.

Dated:

Hon. Lynn R. Kotler, J.S.C.

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Footnotes

[16] of 19 [* 15] continuation of the selling corporation; or the transaction is entered into fraudulently to escape such obligations" (id. quoting Schumacher v. Richards Shear Co., Inc., 59 NY2d 239, 245 [1983] [internal quotations omitted)). Here, ITW has failed to present evidence that none of the general exceptions apply and thus that' ITW cannot be held liable for its predecessor's torts. Accordingly, ITW's motion for summary judgment dismissing plaintiffs fraudulent misrepresentation claim is denied. Finally, as for the punitive damages claim, ITW's arguments are unavailing. The court agrees with plaintiff that her allegations of ITW's fraud and gross negligence (which ITW has not moved for summary judgment on) support an award of punitive damages by a jury. "Punitive damages are not to compensate the injured party but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated .from indulging in the same conduct in the future" (Ross v. Louise Wise Services, Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007]). Punitive damages are available upon proof of "the conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard" (Harlfor Acc. And lndem. Co. v. Village of Hempstead, 48 NY2d 218 [1979] citing PJI 2:278). To sustain an award of punitive damages, the defendant must purposefully cause, or be grossly indifferent to causing, injury (Marinaccio v Town of Clarence, 20 NY3d 506, 512 [2013]). "[D]efendant's behavior cannot be said to be merely volitional; an unmotivated, unintentional or even accidental result of a legally intentional act cannot, alone, qualify." (Id.) On this record, ITW's predecessor-in-interest placed benzene-containing products into the stream of commerce despite the knowledge that benzene can cause cancer and failed to warn its product users of the known risks of exposure to benzene. 16 [* 16] 17 of 19