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http://www.nytimes.com/2002/06/26/health/26ARSE.html

The Poison Is Arsenic, and the Suspect Wood

By ADAM LIPTAK

ERNANDO, Miss., June 19 — It took six hospitalizations and a number of misdiagnoses before Lynn Milam learned what was causing the vomiting and diarrhea that almost killed her in 1999. The arsenic levels in her body, her doctor said, were about 100 times what they should have been.

Ms. Milam was relieved to have a diagnosis, however terrifying. That relief vanished when the police arrived. "They said someone was trying to kill me, and they were almost 100 percent sure it was Tom," her husband, Ms. Milam said.

But she refused to believe it. "I know the man," she said. "If he were going to kill me, he'd just shoot me."

Ms. Milam's instincts were borne out when laboratory tests conducted by the F.B.I. showed that her husband had even more arsenic in his system than she had in hers.

The results helped take the wind out of the criminal investigation, but the case has not gone away. It has since evolved into a consumer lawsuit focused on the last remaining suspect in the poisoning of the Milams: the A-frame cabin they had been building in this small town some 20 miles south of Memphis.

Vicki S. Wood, one of the Milams' lawyers, said the couple were victims of chromated copper arsenate, or C.C.A., the predominant wood preservative in the United States and the subject of an emerging body of product liability lawsuits around the country. Some of the lumber for the Milams' two-story cabin frame had been treated with C.C.A., which prevents decay and repels termites. It also contains arsenic.

Arsenic, a chemical that occurs naturally in the environment in small amounts, is a fatal poison at high doses and a known carcinogen at lower ones.

C.C.A.-treated wood, a $4 billion industry, is a popular choice for decks, picnic tables and playground sets that must stand up to warm, wet weather. The wood has a distinctive pale green color and is sold in home improvement stores nationwide.

There is substantial evidence that C.C.A.-treated lumber leaches arsenic over time. Whether that is cause for concern is in dispute, as is the safety of playgrounds built with C.C.A.-treated wood.

"C.C.A.-treated wood is practically everywhere," said Hugh McNeely, a Louisiana lawyer who represents plaintiffs in a class-action lawsuit against sellers and manufacturers of the wood. "The potential for widespread personal injury or potential latent manifestation of arsenic- and chromium-related health problems is profound."

The industry disputes that. A report commissioned by two manufacturers and prepared by Barbara Beck, a toxicologist with the Gradient Corporation, environmental consultants, concluded that "use of C.C.A.-treated wood in both a residential and a playground setting does not pose a significant health risk to children or adults."

In an interview, Dr. Beck said the risks associated with incidental exposure to C.C.A.-treated wood and the soil beneath it were lower than those associated with arsenic in food or allowed under the new federal limits for arsenic in drinking water.

Philip J. Landrigan, a professor at the Mount Sinai School of Medicine in Manhattan, said the dangers from incidental exposure were a matter of perspective. "All cancer risks are dose-related," he said, "but since this is not an essential product for life in the modern world, we should find a way to live without it."

While there is debate about incidental exposure, there is agreement that working with the wood can be dangerous. The Environmental Protection Agency and manufacturers of treated wood advise consumers not to use wood with surface residue; to wear gloves, a dust mask and goggles while sawing; to saw outdoors; and never to burn the wood.

The Milams did everything wrong.

"I was holding each log while Tom cut the end of it," Ms. Milam said. "I was wearing shorts and no gloves."

They worked indoors, and they burned some of the wood.

Jeffery Artis, a spokesman for the F.B.I., comes close to asserting cause and effect. "We have not made a determination that the arsenic in their bodies came from the treated wood," Mr. Artis said, "but we know that at the time the arsenic levels were very high, they were working with the sawdust."

The Milams have sued several manufacturers and retailers, all of which deny responsibility for the poisoning, and the American Wood Preservers Institute, a trade group.

Its president, Parker Brugge, declined to comment on the lawsuit. As a general matter, he said, "the wood is safe when it's used according to the consumer safety sheet" put together by the industry.

The Milams say they never received such information. Experts say this is common.

"You see people go into a lumberyard and ask for wood to build a deck," Professor Landrigan said, "and there is no sign or other warning about these dangers."

Mel Pine, a spokesman for the trade association, said that the industry had fulfilled its obligation to inform the public about the dangers of treated wood but that until recently, "at the retail stores the compliance was less than perfect."

That is improving, he said. An audit of 250 major retailers in March, he said, showed that about 80 percent tagged the wood with a condensed version of the safety sheet.

The industry and the Environmental Protection Agency have announced that sales of C.C.A.-treated wood for residential uses will be phased out by the end of next year. Mr. Brugge said the decision was based on "changes in perception, changes in the marketplace" and a new generation of preservatives without arsenic.

Mr. McNeely, the lawyer in one class action, sees it differently. "It's a rear-guard action," he said. "They're trying to defend themselves as they're retreating."

In announcing the phaseout, the E.P.A. said that it "does not believe there is any reason to remove or replace C.C.A.-treated structures, including decks or playground equipment." At the same time, the statement continued, "any reduction in the levels of potential exposure to arsenic is desirable."

In addition to the case being pursued by Mr. McNeely in Louisiana, another class-action suit has been filed in Florida. Both suits, which are in their early stages, are aimed primarily at the property and environmental damage, as opposed to any personal injury, that is attributed to the treated wood.

Litigation experts say the success of those suits and the potential for liability will turn on scientific evidence that neither side yet has. "Before a toxin becomes a litigation concern, there has to be some science, and in this case this issue is so immature that we really don't know if the plaintiffs are going to overcome that," said Bill G. Lowe, who edits Emerging Toxic Torts, a newsletter.

In addition to the class actions, about 30 individual lawsuits have been filed nationwide involving claims of acute poisoning from sawdust, splinters and inhalation, said David S. McCrea, an Indiana lawyer who has handled some of the suits. He said that a handful of such cases had been tried before juries and that the plaintiffs had prevailed in all of them. Other suits have been settled, and some have been dismissed before trial on statute-of-limitations grounds or because the plaintiffs could not make even a preliminary case that their injuries were caused by the defendants' products.

Mr. McCrea said that only a small percentage of treated-wood injuries resulted in lawsuits, mostly because arsenic poisoning is so difficult to identify or, where it is identified, because its cause is rarely determined. He said the Milams' experience illustrated both difficulties.

The police here worked the case hard. They questioned the Milams repeatedly and always separately. They advised Ms. Milam, a 50-year-old computer programmer, to leave her husband, 46, or at least prepare her own food. They sought help from the F.B.I., and the district attorney went to a grand jury to have it consider a charge of attempted murder.

"I felt like the Hernando Police Department came into it predetermined like it was attempted murder, and they had a pretty good little case," Ms. Milam said. "It was really big for them."

Mr. Artis, the F.B.I. spokesman, said the case was dubious from the start, because it lacked a motive. "She was the breadwinner," he said. "There's no big insurance policy. There's no girlfriend."

District Attorney John W. Champion sounded defensive about having presented an attempted-murder charge to the grand jury even after the F.B.I. tests cleared Mr. Milam. He recalled being convinced by an F.B.I. analysis implicating the treated wood. On the other hand, a member of his staff had consulted the industry. "One of my investigators kept telling me that lumber companies had told him that this couldn't be," he said, meaning that the F.B.I. was wrong.

Mr. Champion said he had presented both theories to the grand jurors. "I point-blank told them I believed the F.B.I.," he said.

The grand jury declined to indict Mr. Milam.

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