Transcript GAINING INSIGHT INTO LEGAL DEVELOPMENTS

GAINING INSIGHT INTO
LEGAL DEVELOPMENTS
RECENT DEVELOPMENTS IN
TOXIC TORT LAW
Eric L. Horne, Member, ESCM/Toxic Tort Litigation
Group
Course Description
 Recent
trends in mass tort litigation,
 Including old and new products at
issue,
 Expert testimony and evidentiary
considerations in toxic tort trials,
 How these trends impact presentation
and defense of these claims.

DISCLAIMER: Speaker defends these claims.
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SUMMARY OF TOPICS
 I.
Introduction
 II. Expert and Evidentiary Issues
 III. Reforms in Toxic Torts
 IV. New Products at Issue
 V. Defending Toxic Torts
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I. INTRODUCTION
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TOXIC TORTS ARE:
 TORTS:
Personal and business
losses…
 CAUSED by
 EXPOSURES of land or persons to
 TOXIC SUBSTANCES
[Typically, personal injury cases, but they can
involve business losses.]
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DAMAGES IN TOXIC TORTS
 Personal
 Medical
injury, illness, death
expenses, wage loss, benefits
losses
 General (non-economic damages)
 Medical
Monitoring
 [Redland
 Economic
 Cost
Soccer, 696 A.2d 137 (Pa 1997)]
damages
of product, product replacement
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TOXIC SUBSTANCES
Naturally occurring substances used in
commerce:
Elements: nickel, berrylium, lead
Compounds: asbestos, foods
OR
Man-made or synthesized substances:
Latex, drugs, exhaust fumes, food
additives, pesticides, nano-particles
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TOXIC TORTS LITIGATION
takes several forms:
 Mass
Tort Litigation [large groupings
of cases in “novel” trial settings]
 Repetitive Tort Litigation [similar
cases in succession]
 Class Action Litigation
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MASS TORT LITIGATION
Examples:
 MDL Litigation
 “Mass Consolidated Trials”
 “Selected issues” only are tried:
General causation, punitive
damages
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REPETITIVE TORT LITIGATION
Examples:
 Asbestos cases
 VIOXX cases
Individual plaintiffs or groups of
plaintiffs.
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II. EXPERT AND EVIDENTIARY ISSUES
IN TOXIC TORT CASES
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Distinguish: Traditional Torts
Auto driver runs a red light, hits another
vehicle breaking the other driver’s leg.
 Auto’s brakes fail, auto doesn’t stop, hits
another vehicle breaking the other driver’s
leg.
 In the subsequent lawsuit, there is no
question that the “broken leg” was CAUSED
by the collision of vehicles.

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IN TOXIC TORT CASES “CAUSE” IS SELDOM
CLEAR-CUT.
The suits resemble claims that:
 a car accident took place 30 years ago,
 had no witnesses,
 had no effect for 28 years,
 the “other driver” might be one of any of 50
possible “other drivers”,
 and caused injury of a type possibly also
caused by any number of events.
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IN TOXIC TORT CASES EVERY ASPECT OF THE
“COLLISION” CAN BE OBSCURE
The offending “vehicles” are tiny,
unobservable
 The latency period between exposure and
harm can be decades
 The doses experienced by the claimant
are unascertainable
 The doses needed to generate injury are
unclear

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SCIENCE PROVIDES THE BASIS TO ASSERT LEGAL
EFFECT [INJURY] AND CAUSE

EXPERTS ARE THE CENTRAL WITNESSES
IN TOXIC TORT CASES

WHAT ARE THE EFFECTIVE, REAL LIMITS
ON EXPERT TESTIMONY?
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GRADY (Pa Supreme Court) and Pa RCP 207.1
 ELIMINATING
THE OPPONENT’S
EXPERT ALTOGETHER
FRYE [DAUBERT] Challenges
 Grady v. Frito-Lay, Inc., 839 A.2d
1038 (2003)
 PA RCP 207.1 procedures
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GRADY’S INJURY
4.7.1993: Admitted through ER after “chief
complaint of having thrown up blood”,
lightheaded, weak
 Upper endoscopy reveals “a tear in the lower
esophagus” and blood clot
 Hospitalized for 6 days
 TREATING PHYSICIAN DX:
 ”Mallory-Weiss Gastroesophageal mucosal
tear”

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MEDICAL DX
“A Mallory-Weiss tear occurs in the mucous
membrane where the esophagus connects to
the stomach, causing bleeding. MalloryWeiss tears are usually caused by forceful or
prolonged vomiting or coughing. Any
condition that leads to violent and lengthy
bouts of coughing or vomiting can cause
these tears.”
“Medline Plus”: www.nnlm.nih.gov
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GRADY SUED (4.05.95) and EMPLOYED 2
EXPERTS
Dr. Beroes, PhD/ME (mechanical engineer)
 Mechanically tested Doritos (chewing and
fracturing), concluding “The test results
establish that large pressures result when
a few pounds of force are applied…the
sharp triangular chip tips can readily
pierce the esophagus when driven into the
walls of the esophagus by peristaltic
action…”
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
Dr Beroes also cited to several medical
journal articles such as “Esophageal Tear
Caused by a Tortilla Chip”
N Engl J Med 1990 May 10; 322 (19): 1399-1400
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Dr. Delerme, MD, JD (otolaryngology, ?)
 “It is clear that the Doritos nacho chips
lacerated his esophagus…The absence of
a history of severe retching or vomiting is
against this…being a Mallory-Weiss tear…
The hardness of the chips and the
sharpness of their edges…as
demonstrated in a report from Charles
Beroes…are sufficient to cause the injuries
reported.”
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GRADY TRIAL COURT
Granted MIL: Precluding Beroes, the
engineer, from opining on medical dx and
injury
 Granted MIL: Beroes’ “science” didn’t
satisfy PA/Frye standard

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Granted MIL: Delerme opinions dependent
upon Beroes’
 Granted: Delerme not “qualified” to opine
on cause of injury
 Granted M/Non-Suit: Without Beroes,
neither “defect” nor causation could be
proven

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GRADY TRIAL COURT

No “Frye” hearing held
 before Rule 207.1 became effective July 1,
2001
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GRADY PA SUPERIOR COURT
REVERSED:
 1. Board certified Delerme was qualified to
testify

2. Beroes’ testimony would be admissible as
to the “physical characteristics of the chips
as revealed by the standard test he
..conducted..”
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 Beroes
tests “did not involve any novel or
new scientific principles…”
 AFFIRMED:
Beroes could not testify to
medical causation
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SUPERIOR COURT DISSENT


(Judge (laterJustice) Eakin)
“The majority concludes compressive
strength studies and the scientific principles
involved in them are not novel. Assuming
this it true in the abstract, I cannot say the
trial court erred when it rejected Dr.Beroes’
methods…Beroes’ own report did not
attempt to lay a foundation as to the general
acceptance of his methods..[and] fails to
address how his methods…translate to the
human body.”
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GRADY, 839 A.2d 1038 (Pa. 2003)

REVERSES THE SUPERIOR COURT
 Cite to PaRE 702
Proponent bears burden to show “that
the methodology an expert uses is
generally accepted by scientists in the
relevant field as a method for arriving at
the conclusions the expert will testify
to…”
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Under PaRE 702 expert must still be
qualified: an independent factor to be ruled
on
 “Abuse of Discretion” is the standard (like
any other evidentiary matter), not overruled
absent “manifest unreasonableness, or
partiality, prejudice, bias, ill-will or such lack
of support as to be clearly erroneous.”

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
CONCLUSION: Remand to Trial Court
PA Superior Court never determined if
“discretion abused”
 Plaintiff failed to satisfy Frye burden: “Beroes’
calculations…are not necessarily a generally
accepted method that scientists in the
relevant field use for reaching a conclusion as
to whether Doritos are too hard to be eaten
safely.”
 Discretion not abused: Beroes is out

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
Justice Lamb (concurring)
Dichotomy of “generally accepted
methods” v. “generally accepted
conclusions” easy to say, hard to put into
practice
 “Consensus by the relevant scientific
community that a particular methodology
is appropriately employed to reach a
particular conclusion, will also imply a
consensus as to the conclusion itself.”
 Really?

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GRADY on Remand


With Beroes excluded, MSJ for defendant GRANTED
MIL Exclude Delerme Causation Opinion
 Granted?
 Couldn’t rely on Beroes
 Couldn’t rely on customer complaints (HS, not
similar)
 Couldn’t rely on medical articles (not Doritos,
not similar)
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POST-GRADY CASES

Hansen v. Wyeth, Inc., 72 Pa.D&C 4th 225 (PCCP, 2005)

McMurdie v. Wyeth, Inc., (2005 PCCP LEXIS 336) (Judge





(Judge Bernstein)
Bernstein)
Vinitski v. Adler, 69 Pa.D&C4th 78 (PCCP, 2004)
Folger v. Dugan, MD, et al., 876 A.2d 1049 (PaSuper 2005)
Commonwealth v. Whitacre, 878 A.2d 96 (PaSuper 2005)
Busy Bee, Inc. v. Corestates Bank, 72 Pa.D&C4th 533
(Lackawanna, 2004)(Judge Nealon)
Campbell-Perfilo v. PennDOT, 67 Pa.D&C4th 31
(Lackawanna, 2004)(Judge Nealon)
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“Conduit” HEARSAY Issues
Loeffel Steel Products Inc. v. Delta
Brands, Inc.
387 FSupp2d 794 (ND
 See:
Illinois 2005)
Learned treatise “non-exception”
 See: Alldridge v. Edmunds, 750 A.2d 292
(Pa 2000)
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Scope of Expert Testimony: Limitations?

In Pennsylvania: Are there any?
 Report
 MCARE Act, 40 P.S. Sec. 1303.512
(“Expert Qualifications”)
 Pa RE 703 and 705
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FACT WITNESS LIMITATIONS

Self contradictory testimony
 Wilson
v. AP Green Industries, Inc., 807
A.2d 922 (PaSuper 2002)
 The “not wholly credible” standard for
reviewing affidavits on MSJs
 Stephens v. Paris Cleaners, Inc., 885
A.2d 59 (PaSuper 2005)
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III.
REFORMS IN TOXIC TORT
LITIGATION
Special thanks to Arun Thomas,
ESCM Product Liability Group,
for materials
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LEGISLATIVE REFORMS
Federal Class Action Fairness Legislation
 28 USC Sec. 1332, 1711, 1715 [2.2005]
 PA Joint and Several Liability Reforms
 Dead?
 Federal Asbestos Litigation Reform
 but cf: new “values”

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ATTORNEY GENERALS: HELPING?
Court investigations of fraudulent “mass
screenings” [TX]
 Counter-suits: “impersonations” [WV]
 Investigations of claims handling [NY]
 But, cf:
 New suits initiated

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APPELLATE COURTS

US Sup.Ct. on PUNITIVE DAMAGES
 BMW of NA v. Gore, 517 US 559 (1996)
 State Farm v Campbell, 543 US 874 (2004)
 Phillip Morris v. Williams, Cert Granted at
05-1256 (Williams v. Phillip Morris, 48 P.3d
824 (Or.App. 2002)
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IV. NEW PRODUCTS AT ISSUE
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NEW CAUSAL CONNECTIONS ARISE FROM
SCIENCE
Good and bad science
Scientists assess risks, identify diseases and
recommend treatments
Lawyers and litigation “experts” assert cause
and effect
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SPECIFIC CAUSATION IN TOXIC TORTS

“An expert who opines that exposure to a
compound caused a person’s disease engages in
deductive clinical reasoning…The opinion is based
on an assessment of the individual’s exposure,
including the amount, the temporal relationship
between the exposure and disease…This
information is then compared with scientific data
on the relationship between exposure and disease.
The certainty of the expert’s opinion depends on
the strength of the research data demonstrating a
relationship between exposure to disease at the
dose in question.
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Particularly problematic are
generalizations made in personal injury
litigation from regulatory positions.
Regulatory standards traditionally include
protective factors to reasonably ensure that
susceptible individuals are not put at risk.
Furthermore, standards are often based on the
risk that is due to lifetime exposure.
Accordingly, the mere fact that an individual has
been exposed to a level above a standard does
not necessarily mean that an adverse effect has
occurred.”
Reference Manual on Scientific Evidence (2d Ed),
pp. 422-424
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“THE SCIENCE” is always changing

Lower detection levels

Better epidemiology

New concepts: Biopersistence,
bioaccumulation
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EXAMPLES OF “NEW” PRODUCTS AT ISSUE IN
TOXIC TORTS

“Popcorn Butter Lung”: Microwave Popcorn
additive (diacetyl) causes a unique lung condition

Nano-particles [see website material]

Olestra (a fat substitute in snack foods which
allegedly inhibits vitamin absorption)
[See: Lawyersandsettlements.com; center for science in the public
interst.com]

Berrylium
[13 PennSt. Envtl.L. Rev. 239]
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
Lead in toys


Diesel exhaust
Benzene (in soft drinks)

Ipods




[Lewis v. Exxon, 348 FSupp2d 932 (WD/TN 2004)]
[In re Apple iPod nano Products Liability Litigation, MDL
1754; N.D CA]
VOCs
Mold (?)
Genetically-engineered Food
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“PFOA”: A TOXIC TORT IN THE MAKING
In March 2006, EPA/Scientific Advisory
Board recommended that
“Perfluorooctanoic acids” be labeled a
“likely human carcinogen”
 So what?

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PFOA’s ARE USED IN MAKING COUNTLESS
CONSUMER PRODUCTS
DuPont Teflon©
 Stain and water resistant fabrics, food
wrappings, non-stick cookware
 Almost all Americans are using these
products

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EPA WAS PROMPTED TO CHANGE PFOA
STATUS BY RECENT RESEARCH
EPA “preliminary” research findings show
PFOA present in general population blood
samples and in environment.
 Animal studies indicate, according to EPA,
systemic toxicity, carcinogenicity,
reproductive toxicity and immunotoxicity.


See: www.epa.gov “Basic Information on PFOA”
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RESULT?

EPA proceeding against DuPont

IN RE Teflon Products Liability Litigation,
S.D. Iowa, MDL No. 1733 (filed 2/21/2006)
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Citing growing public health concerns, the United Steelworkers
(USW) union has informed major carpet cleaning retailers and
wholesalers, fast food chains, and major retail clothing companies
that they may have "a legal duty to warn" their customers about
potential harmful effects of products that may contain the
chemical perfluorooctanoic acid, also ...



Steelworkers, Environmental, Consumer Groups Urge California To
List Teflon Chemical As A Carcinogen
Listing would trigger California’s “Right to Know” law
Pittsburgh, Pa.— On Wednesday, a coalition consisting of the
United Steelworkers (USW), Sierra Club, Environmental Law
Foundation, Environment California, U.S. Public Interest Research
Group (PIRG), Natural Resources Defense Council (NRDC) and
Environmental Working Group (EWG) filed a petition to have PFOA
listed as “a chemical that is known to the state to cause cancer”
under California’s Safe Drinking Water and Toxic Enforcement Act
of 1986, commonly referred to as Proposition 65.
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V. DEFENDING THE TOXIC TORT CASE
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EDUCATING THE COURT
General and Specific Causation
 Avoiding the “Presumption of Liability”
 Distinguishing your defendant among the
group

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INFLUENCING CASE MANAGEMENT

“Lone Pine” orders
[Acuna v. Brown & Root, Inc., 200
F.3d 335, 340 (5th Cir. 2000)]
Standard discovery
 Limitations on numbers of cases
 Bifurcation of issues [watch out!]
 ALWAYS PARTICIPATE FOR YOUR
DEFENDANT

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USING PROCEDURAL DEFENSES

Venue Considerations

Using Federal law: Pre-emption, removal
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“DEFENDING” INDUSTRY SCIENCE
THE “Hot” Issue ?
 See: Justice Castille’s remarks
 Blum v. Merrell Dow Pharm., 764 A.2d 1
(2000) dissent
 Grady, pp. 1048-1049

 “[defendant’s]..role
in virtually creating, and then
slanting, the “scientific community” should be a
relevant factor in the Frye analysis.”


Defendant as “guarantor”
Defendant as “expert”
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WILD CARDS
Monitoring the Monitors
 Example:
FDA “Drug Watch”
 Plaintiff’s counsel’s websites
New Experts: “TOXICO-GENOMICS” ?
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