Toxic Tort Litigation

• Author: J. Alan Harrell and Barbara L. Arras
• Pages: 257-294

257

CHAPTER 6

Toxic Tort Litigation

J. Alan Harrell and Barbara L. Arras

I. INTRODUCTION

Toxic tort litigation involves single or repeated exposure to a toxic agent. Many

cases arise from long-term exposure, such as a worker’s use of particular prod-

ucts over the course of a career. Other claims relate to one-time events, such as

a release from a chemical manufacturing facility. Common issues in both types of

cases include whether the substance to which the plaintiff was exposed is capa-

ble of causing the claimed ailment and, if so, whether the exposure duration is

sufficient for causation purposes. Accordingly, both sides regularly engage toxi-

cologists, epidemiologists, industrial hygienists, and other experts. Working with

experts who are well credentialed, follow methodologies that pass muster under

Daubert, and have a knack for relaying complex concepts to juries in a persuasive

and understandable manner, all become paramount considerations.

In long-latency cases, the availability of historical documents and records

retention issues can play a role. In cases involving a more recent fact pattern, the

same electronic discovery principles that permeate virtually all modern litigation

can move to the forefront. In many scenarios, defendants tend to work cooper-

atively, whether through a formal joint defense group or more informal means,

often without the co-defendant finger-pointing that sometimes exists in other types

of litigation. Companies that routinely find themselves as defendants in certain

types of litigation may also consider it helpful to use a national coordinating coun-

sel model to help ensure consistency of their approach to discovery, expert, and

overall strategic issues, simultaneously relieving some of the burden on in-house

counsel. Although certain types of toxic tort cases can follow similar patterns,

practitioners should also remain mindful of how individual cases invariably gener-

ate unique issues that require creativity and not a one-size-fits-all approach.

The authors wish to thank Gregory J. Reda and Lillian M. Grappe for their valuable research assistance.

bro53655_06_ch06_257-294.indd 257 5/22/19 12:10 PM

258 • Environmental Litigation

The discussion that follows addresses a number of issues that can arise at var-

ious stages of toxic tort litigation. After first touching on key theories of liability

and defenses, this chapter covers common discovery issues; the emergence of

personal jurisdiction as an early battleground; the role of expert witnesses and the

related importance of causation assessment; and finally practical considerations

pertaining to settlement and trial.

II. THEORIES OF LIABILITY AND DEFENSES

An overview of all possible theories of recovery and corresponding defenses in

toxic tort litigation is beyond the scope of this chapter. However, the discussion

that follows covers the highlights of several causes of action, as well as corre-

sponding defenses and trends.

Routine standard bearers such as negligence and strict liability are prevalent

theories of recovery, including in chemical products liability cases. Causation

questions are critical under these theories, of course. In the personal injury and

exposure context (and as further discussed in section V of this chapter, “Sci-

ence”), for example, much energy is devoted to working with toxicologists and

other experts dueling over whether a particular contaminant and the extent of the

plaintiff’s exposure to it can and did cause the plaintiff’s injuries. Selection of a

well-qualified expert who can convey opinions to the trier of fact in layman’s terms

therefore becomes crucial. This is made all the more difficult by long-latency cases

in which symptoms may not manifest themselves until years after exposure.

Counsel and their experts may also seek to rely on regulatory risk assessment

to bolster their causation theories. A plaintiff may point to exposure above Agency

for Toxic Substance and Disease Registry (ATSDR) minimal risk levels (MRLs) for

a particular substance, for example, while defendants may counter that risk esti-

mates and corresponding agency exposure guidelines are built upon conserva-

tive assumptions and likely overstate the actual risk. Indeed, according to ATSDR,

“[e]xposure to a level above the MRL does not mean that adverse health effects

will occur.”1 Putting similar arguments into practice, the court in Molden v. Georgia

Gulf. Corp. granted the defendant’s motion for summary judgment on lack of phys-

ical injury, commenting that according to plaintiffs’ experts “the level of phenol

released into the atmosphere was not considered harmful based on prophylactic

standards set forth by various governmental and regulatory agencies.”2 The U.S.

Fifth Circuit Court of Appeal has observed that regulatory and advisory bodies

like the International Agency for Research on Cancer, the Occupational Safety and

Health Administration (OSHA) and Environmental Protection Agency (EPA) use

a threshold of proof that is “reasonably lower than that appropriate in tort law,

which ‘traditionally make[s] more particularized inquiries into cause and effect’

1. ATSDR MRLs (June 2017), https://www.atsdr.cdc.gov/mrls/index.asp.

2. Molden v. Ga. Gulf. Corp., 465 F. Supp. 2d 606, 613 (M.D. La. 2006).

bro53655_06_ch06_257-294.indd 258 5/22/19 12:10 PM

Toxic Tort Litigation • 259

and requires a plaintiff to prove ‘that it is more likely than not that another individ-

ual has caused him or her harm.’”3

The potential for toxicogenomics to play a growing role in the causation

debate also bears mention. Toxicogenomics involves the analysis of how partic-

ular substances affect genetic material. While a detailed discussion of the subject

is beyond the scope of this chapter, suffice it to say that proof of certain genetic

markers (1) may indicate a plaintiff was predisposed to develop a particular dis-

ease without regard to exposure to the substance at issue, (2) could instead be

characteristic of exposure, or (3) could indicate susceptibility to developing the

disease from exposure. Juries could potentially be receptive to such individualized

causation explanations, although this field is still developing and the correspond-

ing analysis could be cost prohibitive in some cases.

With the understandable emphasis on causation, litigants must still be mindful

not to lose sight of exactly what the plaintiffs contend the defendants did wrong,

no matter what label is placed on the theory of recovery. In other words, in a

chemical products liability case, is the claim that the product was unreasonably

dangerous for lack of an adequate warning? If so, why was the warning insufficient?

In cases involving claims that a product contained carcinogens, but was not so

labeled (such as claims that products with hydrocarbon solvent ingredients may

contain benzene as a contaminant), plaintiffs may attempt to demonstrate that the

federal Hazardous Communication Standard required certain carcinogen warnings

because the product contained more than 0.1 percent of the carcinogen at issue.4

In that event, the parties may focus on company or raw material supplier records

regarding product content and testing, as well as relevant literature on the typical

composition of the substances at issue, such as the percentage of benzene poten-

tially found in toluene during different time periods.

Plaintiffs who are able to prove exposure but not physical harm may pursue

medical monitoring claims, arguing that even in the absence of any current man-

ifestation of physical injury, they are entitled to compensation for future medical

monitoring to make an early diagnosis of exposure-related disease. In Meyer ex rel.

Coplin v. Fluor Corp., the Missouri Supreme Court described a medical monitoring

claim as seeking “to recover the costs of future reasonably necessary diagnostic

testing to detect latent injuries or diseases that may develop as a result of exposure

to toxic substances.”5 Whether such damages are recoverable without manifesta-

tion of physical injury varies from state to state. In Meyer, for example, the court

found that such damages are recoverable under Missouri law, while noting that it

was not creating a new tort. Rather, it was simply recognizing a compensable item

3. Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th 1996) (quoting Wright v. Williamette Indus., Inc., 91

F.3d 1105, 1107 (8th Cir. 1996)); Milward v. Acuity Specialty Prod. Grp., Inc., 969 F. Supp. 2d 101, 110 (D.

Mass. 2013), aff’d sub nom. Milward v. Rust-Oleum Corp., 820 F.3d 469 (1st Cir. 2016).

4. See Hazard Communication, 29 C.F.R. § 1910.1200.

5. Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 716 (Mo. 2007); Elsea v. U.S. Eng’g Co., 463

S.W.3d 409, 416–17 (Mo. Ct. App. 2015) (citing Meyer, 220 S.W.3d at 712).

bro53655_06_ch06_257-294.indd 259 5/22/19 12:10 PM