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The latest trend in toxic torts.

Claims due to alleged exposure to toxic substances in the workplace are a major cause of litigation for companies, said Mark R. Montgomery, Ph.D., professor of toxicology at the University of South Florida in Tampa at RIMS 1993 Florida Chapters 18th Annual Joint Conference. "Although some of these claims may be true, many are based on questionable science." Dr. Montgomery stated that the so-called experts called in to provide their opinion on whether a causal relationship exists between a chemical exposure and an illness often make assertions that are not based on logic or scientific fact.

Today, many of these cases are associated with a spurious illness known by many names, but most commonly as MCS, or multiple chemical sensitivities. "MCS is a group of alleged illnesses due to an immunological reaction supposedly caused by chemicals in the environment," said Dr. Montgomery. "It is the single biggest litigation topic in toxicology and the second biggest cause of workers' compensation litigation next to slips and falls." Predicting that cases related to MCS and other similar conditions will increase, Dr. Montgomery suggested that risk managers and their companies can improve their litigation results by learning how to evaluate plaintiff's arguments.

When involved in toxic exposure litigation, risk managers should be on the lookout for evidence of junk science. "Junk science is any science that is inappropriately done and therefore scientifically invalid," explained Dr. Montgomery. In toxic exposure cases, one of the most commonly forms of junk science is the use of uncontrolled laboratory data. For example, some plaintiffs will misuse such data in an attempt to prove that a chemical exposure caused the illness. "In these cases, the plaintiff's legal team sends out a blood sample for analysis, and it comes back showing a harmless concentration of a substance such as formaldehyde that every normal, healthy person has in his or her system." This will then be portrayed to the court as evidence of injury.

Another indication of junk science is when anecdotal case reports are used as evidence of a caused and effect relationship between the chemical exposure sure and the plaintiff's alleged illness, said Dr. Montgomery. "Case reports are in no way ever to be taken as objective evidence of a cause-effect relationship," he asserted.

Indeed, the evidence for causation is often distorted in toxic torts. One of the most common errors is when the concepts of "temporality" is used as proof of causation, explained Dr. Montgomery. "The argument from temporality asserts that if exposure |A' preceded injury |B', then this necessarily proves that A caused B." However, such sequences of events do not necessarily prove causation.

To be considered a credible cause of illness, the exposure must be pharmacologically capable to actually causing the injury. "Making this determination involves examining the toxicological profile of the substance and determining if the chemical has properties that could logically relate it to the injury in question - an issue that is almost never evaluated is determining torts." Also never evaluated in toxic high enough to cause the injury, and whether the injury occurred in a reasonable time period after the alleged exposure.

When attempting to ascertain whether a given chemical produced the alleged injury or illness, risk managers and their legal teams should examine the concept of alternate causation. "Determining alternate causation means finding out if there are other, more logical causes for the injury such as allergy, any pre-existing illnesses or stress," said Dr. Montgomery. This analysis requires conducting a thorough review of the individual's occupational, social and medical history.

Athough conducting such reviews can be time-consuming - and in many cases, the needed files are not readily available - obtaining this information can be very valuable in litigation. Dr. Montgomery described the case of a plaintiff who filed a suit against her employer, claiming that the carpeting in her building caused her symptoms of anxiety, insomnia, anorexia, irritability, confusion and depression. However, an analysis of the case revealed that she was taking seven prescribed pharmaceuticals simultaneously, including various tranquilizers and anti-depressants, which triggered her symptoms.
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Title Annotation:Risk and Insurance Management Society; RIMS 1993 Florida Chapters 18th Annual Joint Conference
Author:Christine, Brian
Publication:Risk Management
Date:Oct 1, 1993
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