Use and abuse of 'historical experts' in toxic tort cases.

• Author: Kozak, Scott

This article originally appeared in the March 2015 Toxic and Hazardous Substances Litigation Committee newsletter.

TOXIC tort cases, especially mass toxic tort cases, frequently involve allegations of exposure or contamination from one or more constituents over a period of years, if not decades. Often, plaintiffs are not just minors, but adults that claim exposure to various contaminants at or from a young age (including in utero), and resulting damages and injuries that manifest themselves decades later. Increasingly, plaintiffs' attorneys employ "historical experts" to provide a narrative framework for their clients' claim, painting a picture--ostensibly through citation of objective facts--of how various industries have dealt with contaminants and the history of scientific and medical review. This article provides a brief overview and primer on these types of "experts," and provides some arguments against their use, discussing articles authored by one of the more well-known plaintiffs' experts.

1. What is a "Historical Expert"?

   While historical experts are something of a modern phenomenon, the essential qualifications of historical experts is largely uniform from a plaintiffs' attorney's perspective. Historians identified as testifying experts routinely have a background in public health, have written putatively "objective" articles or books focused on one or more industries that involve contaminants (e.g., tobacco, lead, vinyl chloride), have a great deal of familiarity with core documents applicable to virtually any case involving the contaminant/ substance at issue and frequently hold professorships at well-regarded educational institutions.

   Plaintiffs' attorneys employ historical experts to provide a narrative on which they can hang their theory of liability, testifying in four general areas:

   (1) a historical overview of the subject industry and/or contaminant, from its inception through the current day;

   (2) a review of major scientific and regulatory findings and disputes;

   (3) enumeration of current identified health risks; and

   (4) identification of "key" documents or testimony.

   These four areas of testimony are designed to paint an overwhelmingly negative picture of an industry or contaminant, providing the jury with a detailed background plaintiffs' attorneys hope will serve to augment, if not overwhelm, case specific evidence. Testimony will necessarily be slanted by selective citation to historical facts supportive of plaintiffs' case and unfavorable to industry, allowing the expert (and by extension, the jury) to infer bad motives and actions on the part of industry participants. Frequently, the testimony will serve to undercut defense references to government regulations and industry compliance with regulatory frameworks by intimating that the industry and government were in bed with each other, ostensibly for the benefit of the industry and economy, not victims like the plaintiff(s).

   Historical experts clothe themselves in academic garb, regularly portraying themselves as reciters of the factual records, objective to the core. They argue that they discuss and present facts as they find them, negative and positive, to provide a "complete picture" for the jury. However, in practice, the plaintiffs' historical expert essentially engages in Monday-morning quarterbacking, reviewing selective facts in hindsight and extrapolating from them a biased narrative. In doing so, the expert has free reign to demonize industry or dismiss otherwise proactive activities by showing that they either did not work or were...