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The 10 commandments of toxic tort defense.

The 10 Commandments Of Toxic Tort Defense

Two recent court cases suggest a need to stress right and wrong ways to approach legal and scientific issues in toxic tort litigation. The so-called right way is exemplified by the case In Re: Paoli Railroad Yard PCB Litigation. The wrong way is illustrated by Elam, et al. v. Alcolac, Inc.

Essential to each approach is counsel's understanding that the importance of the toxic tort case stems from scientific, not legal, issues. If scientific issues are decided on sound principles, the defense is usually favored in the outcome. On the other hand, if scientific issues are decided on the basis of "junk science" or "science fiction," the plaintiff is likely to prevail. The correct approach of In Re: Paoli is evidenced by the judge's statement: "The first question is whether the Court is permitted to look behind the expert's statements that animal studies are the sort of data on which they would rely in determining what causes a disease in the practice of their profession, or whether the Court is bound by the assertions of plaintiffs' experts. If Rule 703 is to be any limit on the ability of expert witnesses to give their opinions, a Court must be permitted to examine the basis of the profferred opinions. ... If a Court is not permitted to examine the basis of an expert's opinion in order to rule on the admissibility of that opinion, then Rule 703 should read: 'An expert may cite as the basis of his opinion anything he likes.'"

The legal approach in Elam is difficult to state succinctly because the opinion, without its appendices, fills 371 pages. Outrageous admissions were obtained from the defendant's experts which fly in the face of established science. For example, they conceded the existence of a condition known as chemically induced immune disregulation. While several external factors, including chemicals, stress and illness, may transiently affect the immune system, the condition is not a medically recognized disease. Overall, the Elam opinion suggests that the defense did not understand the science involved. The result was a multimillion dollar plaintiff's verdict that was affirmed by the Missouri Court of Appeals.

The following 10 commandments are the result of more than 15 years' experience in defending toxic tort and environmental cases. Some may not agree with all the commandments, but at a minimum they should cause one to rethink traditional approaches to litigation.

Thou Shalt Fear Neither Thine Opponent Nor His Legal Theories

Some believe that toxic tort and environmental cases are scary because they involve novel theories of personal injury liability, a few cases have been big ticket damage items and the involved science is daunting. However, reading the cases that use the right approach should instill confidence in the defense. Conversely, reading the plaintiff-oriented decisions should reveal consistent errors made by defense counsel and suggest a means to avoid them.

Just because a case involves a toxic chemical or hazardous wastes is no reason to abandon ship. Counsel and client must be aware at the outset that the present state of science on the issue of disease causation favors the defense and is reflected in many cases.

Thou Shalt Stick to a Plan

This commandment is the opposite of the first. It presumes that most toxic tort and environmental cases are expensive to defend. Although allegations made in the complaint should not cause alarm, according to the first commandment, counsel and client should, at the outset, realistically assess defense costs. In addition, they should plan the defense to progress in a disciplined, organized, results-oriented and cost efficient manner.

Defending a major toxic tort or environmental case without a formal plan and budget almost guarantees that the defense will be less focused and more expensive. Some planning disciplines involve periodic evaluations of how the plans are executed and how the results match those predicted. However, whatever mechanism is used, it should be adhered to. This does not mean that the original plan cannot be modified. Evaluation is part of the process and results from close review of the original plan in light of ongoing discovery.

The planning process should involve counsel, the client and the insurer in determining what activities are necessary to the defense of the case and the sequence of discovery. Often a carefully crafted discovery plan enables defense counsel to seize and maintain the initiative from the plaintiff. This can be the most important factor in resolving the case.

Thou Shalt Involve Thy Consultants and Experts Early

Counsel experienced in defending toxic tort and environmental cases often do not have the same in-depth familiarity with scientific issues as scientists. However, in the egoistic world of the trial lawyer pride may disastrously tempt counsel to use the science he or she has acquired without consulting the experts.

Because scientific issues are favorable to the defense counsel, consultants and experts should be involved early in the planning stage. Unfortunately, this is rarely done. Too often experts and consultants are brought in to be identified on witness lists and for depositions.

Note the distinction between consultants and experts. In some jurisdictions counsel may employ a scientific consultant with no requirement to divulge his or her identity. However, the identity of experts must usually be disclosed. Involving the consultant in the planning stage may also cut defense costs. Then, from the outset, scientific issues will be prepared for discovery and presentation to the court in an understandable and simplified manner.

Thou Shalt Know Thy Science as Well as Thy Law

This commandment is the most frequently violated. If, as the cases suggest, courts are capable of deciding scientific issues based on scientific fact, how can defense counsel present good science in understandable form to the court if he or she does not understand what it is? For example, if chemical animal studies should not be admitted as evidence to substantiate the effect of a chemical on humans, how can counsel exclude this evidence if he or she is not aware of the scientific flaws inherent in animal studies?

Likewise, if test tube or petri dish experiments are inadmissible as substantiating the effect of a chemical on humans, how can these studies be excluded if counsel is unaware of their scientific defects? In addition, if anecdotal data or case histories of alleged injuries following chemical exposures are inadmissible as evidence of disease causation, how can counsel exclude these without understanding the scientific flaws in using them? Finally, if the expert attempts to use structural analysis, in which similar chemicals are used to predict toxic effects of the chemicals in question, how can counsel exclude such evidence without understanding why such a technique is largely considered junk science by scientists?

In fact, these situations have been addressed by the courts in one or more jurisdictions, and each, absent valid epidemiological studies, has been excluded as not providing a reliable scientific basis for an opinion on causation of human disease. Furthermore, when epidemiological data is unavailable, some courts have ruled that its absence is fatal to the plaintiff's case. The same is true of other scientific issues spotlighted by toxic tort litigation. For example, if a claim is made that a chemical has produced a toxic effect on the liver, it is important to understand the liver's function.

The three scientific disciplines that occur in virtually every toxic tort case are toxicology, clinical medicine and epidemiology. Toxicology deals with the harmful effects of chemicals and drugs on living organisms. Clinical medicine, or pathophysiology, involves disease and its diagnosis by the medical community. Epidemiology is the study of groups of individuals exposed to chemicals to determine differences that might exist in their overall health that are different from non-exposed persons and thus might be attributable to an environmental factor. Without understanding how these disciplines apply to a case, defense counsel cannot point out the flaws in methodologies and opinions or effectively use sound science.

Thou Shalt Not Write That Which Thou Doest Not Read

This commandment, also widely violated, relates to the entire field of trial practice and the claims resolution process. How many times has experienced trial counsel found one of his or her early answers to interrogatories being read to a jury when the context of the case has changed the meaning of the words that were originally used? And how many smoking gun documents might never have been written if this commandment was obeyed?

Many trial lawyers categorically deny the allegations in a complaint. This, too, may be risky. In a recent case, the categorical denial of all the plaintiff's allegations was used by the plaintiff to suggest that his theory of conspiracy continued into the courtroom. A proper approach mandated under federal practice and in many state jurisdictions is to thoroughly respond to allegations, admitting and denying and leaving the burden of proof on the plaintiff.

The same is true of privileged correspondence. For example, correspondence between counsel and a corporate client, which is obviously privileged vis-a-vis the plaintiff, may be discoverable in a subsequent action against an insurer. A good rule of thumb is if counsel or the client has no trouble with a pleading, interrogatory answer or letter being read on primetime news, then it is probably well-written.

If the efforts of defense counsel in preparing a case for trial are viewed as preparing a product to be sold in the marketplace, an obvious question arises: Who are the customers?

Thou Shalt Remember To Whom Thine Efforts Are Addressed

Regarding trial practice, the market is small, consisting of someone sitting behind the judge's bench or six or 12 people seated in the jury box. This is counsel's exclusive market.

Too often defense counsel, clients and insurers lose track of this fact. All of counsel's work that is intended to be presented to the court or the jury should be carefully evaluated. In the past this was not as important because cases were simpler. However, the legal and scientific issues discussed in today's cases are complex. In addition, personal biases often exist in the general population which may be contrary to principles being advanced by the defense.

The defense's response to written discovery, such as answers to interrogatories and responses to requests for admissions, should be prepared as positive, understandable assertions if read to a jury. Expert witnesses should use aids to keep jurors' attention and promote understanding. These devices should be carefully discussed by both counsel and experts well before the trial.

Jurors have a limited capability to understand and retain technical information. Therefore, counsel should carefully evaluate the various sciences that may be at issue in a case to determine early on which are necessary. Furthermore, counsel should determine at this time how these data will best promote understanding in the court. Counsel, client and insurer are encouraged not to ask too much of jurors or judges. Obviously, a favorable dispositive motion will decide an issue more efficiently than a full-blown jury trial.

Thou Shalt Not Gather Useless Information at Great Expense

Gathering information for its own sake is an expensive proposition. This is especially true of mass tort cases involving many plaintiffs. In a case involving 100 to 200 plaintiffs, for example, is it realistic to gather "womb-to-tomb" information on each plaintiff when experience strongly suggests that the claims of all plaintiffs will not be tried in the same lawsuit?

The reported cases reflect that judges often understand science and can decide scientific issues based on sound principles and methodologies. Personal experience also demonstrates that jurors can understand and decide factual issues with a scientific premise. However, counsel must determine in the early stages what information--be it hydrogeologic data, plant manufacturing records or air monitoring studies--is necessary to properly defend the case.

Thou Shalt Prepare Thy Judge For Difficult Decisions on Complex Issues

The opinions cited above strongly suggest that in each case the court was prepared for the ruling which defense counsel sought. The same is true of the opinions, when available, of the original trial courts. Conversely, in opinions such as in Elam, in which junk science controlled the result, the courts were not carefully prepared by the defense to give the relief requested.

Experienced trial lawyers are familiar with the reasons why most judges oppose the exclusion of evidence and/or witnesses. There is an unfortunate predisposition among judges to abandon their proper role as gatekeeper on matters of admissibility of evidence and permit a "battle of the experts."

Many cases contain clear, useful and well-reasoned precedent to emphasize defense counsel's suggestions to the court that scientific issues should be decided on sound principles. There are several techniques available to do this, including non-dispositive motions to gradually educate the judge on relevant scientific principles. Defense consultants can effectively prepare scientific issues so they may be presented in a classroom environment designed to teach and encourage questions in court.

Counsel should never be surprised when an unprepared judge rules against him or her. Most judges do not understand what junk science is and, more importantly, why it is junk science. The reported cases indicate that when this distinction is apparent to the court, the judge does the right thing. This is one of the most challenging tasks for defense counsel in toxic tort litigation, but the reported cases show that the task can be successfully undertaken.

When dealing with adverse expert witnesses, it is important that a proper discovery record be made permitting effective cross-examination. However, exhaustive cross-examination of the plaintiff's expert(s) is generally not desirable.

Thou Shalt Not Stray From Thine Discovery Record When Cross-Examining

The adverse expert is also usually an advocate, and the longer the expert is on the stand, the longer he or she can convey junk science to the jurors. A well-documented discovery deposition allows defense counsel to construct a tight, focused cross-examination to secure useful admissions from the opposing expert.

At a recent trial, counsel for a co-defendant, hoping to score a home run, engaged in a lengthy and unsuccessful debate with an adverse expert with no foundation in the discovery record for the questions asked. No one knew how this expert would respond. Fortunately, the jurors properly perceived this as an argument between counsel and witness rather than an issue between the parties and did not penalize the defendants.

All defense counsel have had the experience of going too far with a witness; it is part of the learning process for a good advocate. But if counsel realizes during an evaluation of a completed trial that damaging admissions or other testimony came into evidence through unnecessary cross-examination of the adverse expert, the lesson may be learned too late.

Thou Shalt Keep It Simple

Defense counsel usually has ample opportunity to assess the facts and issues regardless of their complexity. Even with well-qualified consultants to help digest complex scientific issues, this assimilation process may take weeks or months to complete. However, the jury cannot leisurely assimilate information. They are in a foreign environment getting high doses of complex information in short periods.

If science favors the defense, to the extent that that science is not comprehended by the jury or the court, the likelihood of a defense verdict is diminished. Experience teaches that the most important element in conveying science to a jury is simplicity and repetition. On the other hand, if the science is stated in complex terms or only once, it is unlikely to be understood or retained by jurors.

John G. Gleeson is of counsel to Harvey, Kruse, Westen & Milan, a Michigan law firm. This article is adapted from a recent publication of The Defense Research Institute.
COPYRIGHT 1990 Risk Management Society Publishing, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Author:Gleeson, John G.
Publication:Risk Management
Date:Aug 1, 1990
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