Trial Magazine

Toxic torts often involve complex legal and scientific issues that are affected by the case law and climate of the jurisdiction at issue. When people exposed to a toxic substance ask you whether they have a legal claim for their injuries, careful intake is critical. Here are seven issues to consider when assessing a potential claim.

1 What’s the Diagnosis?

A toxic tort involves a disease characterized by an internal injury caused by exposure to a hazardous substance. Instead of looking from the “outside in” as you would with a brain injury after a car crash, a toxic tort injury manifests from the “inside out.” This commonly begins with nonspecific health problems, followed by a visit to a doctor, and then a diagnosis.

When potential clients first contact you, ask: What is your diagnosis? When were you diagnosed? If they have various symptoms but no diagnosis, instruct them to go back and inform their doctor of their symptoms and also their occupation and known exposures. This information helps a health care provider distinguish between a nondescript pleural effusion and suspicion of mesothelioma (with asbestos exposure),¹ or between chronic fatigue and suspicion of leukemia (with sufficient benzene exposure).² Explain to the potential client that until a diagnosis has been made, there is no case. An exposure incident in the workplace is not enough on its own.

Mapping the battleground. Once a potential client has a diagnosis, ask a set of initial questions to start mapping out the contours of a legal claim. In the 18th century, an Italian physician named Bernardino Ramazzini published the first known book on occupational diseases, in which he posits that the central question to ask is what a person does for a living.³ When talking to a potential client, do the same. The answer is crucial.

Certain rare diseases are called “signature diseases” and are commonly associated with a particular toxic exposure. For example, mesothelioma is the hallmark of asbestos exposure, acute myelogenous leukemia (AML) is commonly related to benzene exposure, angiosarcoma of the liver is a hallmark of vinyl chloride exposure,⁴ and bronchiolitis obliterans is a hallmark of diacetyl exposure.⁵

Imagine someone comes to you with a mesothelioma diagnosis, and you ask her occupation. If she was a mechanic, you already know which potential exposures are involved and which potential defendants are implicated. The same is true for a person diagnosed with AML who has a background of working in the printing industry.

Ask potential clients to bring their medical records to the intake meeting. Contact their physicians and see whether the clients discussed chemical exposures. Often, the medical records say nothing about chemical exposures simply because the potential client did not know and the doctor did not ask.

Aside from gathering information about the person’s diagnosis and occupation, I ask potential clients:

• What are your hobbies?
• What are the names and ages of all family members? (Minors have longer statutes of limitations.)
• What are the names of all coworkers or friends who did the hobbies with you?
• What did you used to do that brought you joy?
• What can you no longer do because of your diagnosis?

2 Jurisdiction

Evaluating the legal and scientific merits of your client’s case means looking at it through the lens that the trial and appellate courts will use. You need a thorough knowledge of the law and climate in your jurisdiction. For example, when I practiced in Texas, I had to become conversant in Frias v. Atlantic Richfield Co.,⁶ Borg-Warner Corp. v. Flores,⁷ and Texas’s Medical Malpractice and Tort Reform Act of 2003.⁸ The legal environment in Texas made bringing toxic tort claims impractical if not impossible.

Contrast this with California, another large state with large numbers of exposed populations, where legal standards are fairer, even though the litigation itself is still quite difficult and expensive. Save your client and yourself the heartache and expense of moving forward if you are in a tort “reform” environment with little or no chance of prevailing.

Daubert or Frye? One basic, helpful distinction in evaluating your jurisdiction is whether scientific evidence is governed by Daubert or Frye.⁹ (See chart on p. 45.) If you practice in a Daubert jurisdiction, take pause before initiating suit. If you are in a Frye jurisdiction, you may have fewer hurdles to overcome.

Looking at the opinions themselves, this generality makes no sense. After all, Daubert allows for more discretion when admitting expert scientific evidence,¹⁰ while Frye requires that an expert’s opinion must be based on “generally accepted” authority in the relevant field.¹¹ But there is simply more negative appellate treatment of expert testimony in Daubert jurisdictions that you will have to contend with.¹²

For example, you can assume Daubert states require epidemiology to describe an exposure similar to the one at issue, with a two-fold increased risk at a statistically significant confidence interval of 0.05. Whereas with Frye, the two-fold increased risk may not be necessary, and an increased risk of 1.3 to 1.5 may suffice if the experts can testify that there is general acceptance of causation among medical experts. You can argue that there need not be epidemiology connecting the disease with the exposure, but keep in mind that you will be fighting an uphill battle.

Assume this means not just the disease process but also the subtype of the disease. For example, if a potential client comes to you with AML, but the subtype is described as APL (acute promyelocytic leukemia) or AML plus a Philadelphia chromosome, you need to navigate a specific set of epidemiology that relates to the subtype and not just the disease AML. There may be general acceptance of both the AML and its subtype but not necessarily the epidemiology related to the subtype. Therefore, the Frye/Daubert distinction is critical.

In my experience, Ohio and Texas are especially tough Daubert jurisdictions, while Louisiana, Massachusetts, and West Virginia may be less difficult. (For more specifics on surviving Daubert challenges, see p. 18.)

In a Frye jurisdiction, however, the epidemiology (or lack thereof) may not be a death knell to your experts’ opinions. As explained above, if a treating physician and an epidemiologist agree that the benzene exposure caused the plaintiff’s APL or AML with a Philadelphia chromosome, you will be in much better shape than under Daubert.

3 Statutes of Limitations and Repose

Because statutes of limitations vary not only from state to state but also relative to the causative agent involved, it is essential to determine at what point potential clients should have known that their condition was caused by that agent. Look at your state’s treatment of a toxic tort statute of limitations based on discovery of the relationship between the disease and a specific exposure.

For example, in Missouri, the statute of limitations for personal injury actions is five years from the date of discovering the injury and three years from the date of death for a wrongful death action.¹³ In California, the statute of limitations is two years from the date of injury and two years from the date of death.¹⁴ However, for an asbestos-related injury, a plaintiff has the later of either “within one year after the date the plaintiff first suffered disability” or “within one year after the date the plaintiff either knew, or . . . should have known, that such disability was caused or contributed to by such exposure.”¹⁵

Statutes of repose are a further concern in cases involving improvements to real property, such as construction, alterations, and repairs.¹⁶ Defendants may argue that exposures related to contracting work to improve real property may be barred by a statute of repose, even though an illness caused by the exposure did not manifest until far beyond the statute’s time frame.

4 Evaluating Specific Causation

If there is a solid legal and scientific foundation to establish specific causation, you will fight your case over your client’s exposure. Defendants likely will present the defense that “the dose is insufficient.” At trial (if you survive challenges to your experts), the defense may paraphrase Paracelsus’s famous observations with the line: “The dose makes the poison.”¹⁷ After all, the defense will argue that if there is an insufficient dose, causation cannot be established, and the product is safe. The “dose is insufficient” argument provides a safe haven for some jurors who—because it makes them feel less safe—are reluctant to believe a product is dangerous.

It is crucial to know your toxicant and do your research. Start with a PubMed search, and contact the authors of favorable literature. Treating physicians may have supporting opinions. Engage with your network of colleagues who may have handled similar cases before.

If you cannot prove exposure exceeded an applicable standard, the defendant may successfully argue it did not breach any duty. For example, a toxicant may have a threshold limit value (TLV). The American Conference of Governmental Industrial Hygienists developed TLVs as guidelines for the exposure level at or below which a chemical does not create an unreasonable risk of injury or disease.¹⁸ This limit is set for noncancerous illnesses, but if it has been exceeded, you have a good liability case.¹⁹

Although the literature clearly states that the conference never meant for TLVs to be protective against cancers, defendants in mesothelioma and lung cancer cases use them to argue a “safe level” in nearly every case.²⁰ Some courts may require a tremendous amount of educating to understand the distinction between the TLV’s applicability to a cancer versus a noncancer. You must know the literature thoroughly to be able to meet these arguments and refute them competently.

5 Damages

Damages are nearly always the most readily proven part of a toxic tort case. The weight of loss and suffering is heavy—often, these clients not only lose everything, but they do so in a slow, painful, and expensive manner. Clients will need to go through not only their past treatment but also their plan for future treatment. For example, treatments in these cases can include specialized procedures such as bone marrow transplants that cost several hundreds of thousands or even millions of dollars in past economic damages. To establish future economic damages, you may need a life care planner to discuss the cost of a lifetime of medical monitoring to ensure the bone marrow transplant doesn’t fail.

Finally, evaluate the lien situation to see whether the case is financially feasible. If you have a client with $5 million in health care liens, consider whether any recovery would cover the liens plus the cost of the client’s ongoing needs. A financial adviser may be necessary to set up an annuity or other financial plan that will make pursuing the case feasible.

6 Experts

Speak with experts such as epidemiologists, oncologists, occupational medicine doctors, and industrial hygienists. They will want to know the factual context of your client’s exposure. When was the client diagnosed? How long was that after the first exposure? How long after the last exposure? What is the frequency, proximity, and duration of exposure? Was protective equipment used? What kind? Are there confounding exposures? Was there a prior cancer? Was it treated with chemotherapy?

Their opinions will establish your causation case, but the costs add up quickly. As early as possible, determine how much your firm can comfortably set aside in preparing the case for trial. Ask your experts how much they charge for reviewing the file, providing a report, sitting for a deposition, and testifying at trial.

You also may need other types of experts in a workplace exposure case. For example, do you need a chemical engineer to evaluate the quantity of the medically relevant toxicant present in a different chemical? Sometimes potential clients describing years of talc exposure don’t have a talc case—they have an asbestos exposure case. If a worker was exposed to the chemical toluene, you may have a benzene case— benzene is an ingredient in toluene, and the toluene and leukemia connection is more attenuated than benzene and leukemia. You will need experts who know these intricacies and can explain them in a credible, understandable, and legally sufficient manner.

7 Initial Documents

Now you can become a sleuth.²¹ Look for OSHA violations.²² Write to your state’s OSHA equivalent to see whether any violations were issued at your potential client’s workplace. Case filings on LexisNexis may contain a trove of information about similar exposures at the site. Ask your experts if they have prior experience with a potential defendant.

After you do this initial work, it’s decision time. If you decide not to take the case, be prepared to have a tough conversation. Over the past 16 years, I have spoken with many clients about why we cannot accept their case, often because of the jurisdiction in which their case must be filed. These conversations require patience in response to any anger (sometimes misdirected at you, the attorney, as a representative of the legal system) and understanding of their pain. It is one of the most difficult conversations you will have but also one of the most important.

Handling these cases also can take an emotional and spiritual toll on you personally, so the last part of evaluating a case should be taking a look in the mirror and deciding whether you are prepared to fight. There was a time in my career when I was almost ready to quit after several losses in my seemingly impossible home jurisdiction of Texas.

But then I started asking myself the tough questions: Can I give what I do not have? Can I provide what I cannot find? We are lawyers seated behind our desks, while our clients work in fields, factories, and machine rooms: How do we bridge this gap? I discovered that meeting the clients where they are emotionally means being ready to listen to all the pain, learn the human story, and bring hope into their lives—a hope that some measure of justice is possible for them and their family.

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Chris Madeksho is an attorney at Madeksho Law in Los Angeles and can be reached at cmadeksho@madeksholaw.com.

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Notes

1. Risk Factors for Malignant Mesothelioma, Am. Cancer Soc’y, https://tinyurl.com/y9o6zc2w.
2. Risk Factors for Acute Myeloid Leukemia (AML), Am. Cancer Soc’y, https://tinyurl.com/vc9m5hu.
3. The book was titled De Morbis Artificum Diatriba [Diseases of Workers].  See Malcolm H. Pope, Bernardino Ramazzini: The Father of Occupational Medicine, 29 Spine 2335 (2004). 
4. Liver Cancer Risk Factors, Am. Cancer Soc’y, https://tinyurl.com/ydy34exg.
5. Flavorings-Related Lung Disease, Nat’l Inst. for Occupational Safety & Health, https://tinyurl.com/qwd3hs7.
6. 104 S.W.3d 925 (Tex. App. 2003).
7. 232 S.W.3d 765 (Tex. 2007).
8. H.B. 4, 78th Reg. Sess. (2003).
9. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (1923). For details on each state’s standard, go to https://tinyurl.com/vs5j6x5.
10. See Daubert, 509 U.S. at 589.
11. Frye, 293 F. at 1014.
12. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
13. Mo. Rev. Stat. §516.120 (2019); Mo. Rev. Stat. §537.100 (2005).
14. Cal. Code Civ. Proc. §335.1 (2010).
15. Cal. Code Civ. Proc. §340.2 (2010).
16. See, e.g., Rev. Code Wash. Ann. §4.16.300 (2004) (six-year statute of repose).
17. Paracelsus, known as “the father of toxicology,” observed, “All things are poison and nothing is without poison. Solely the dose determines that a thing is not a poison.” See Philippe Grandjean, Paracelsus Revisited: The Dose Concept in a Complex World, 119 Basic & Clinical Pharmacology & Toxicology 126 (2016).
18. TLV/BEI Guidelines: Overview, Am. Conf. of Governmental Indus. Hygienists, https://tinyurl.com/tu7x7ab.
19. James Sterner, Methods of Establishing Threshold Limits, 9 Annals Am. Conf. of Governmental Indus. Hygienists 85, 90 (1984).
20. Report of an Investigation of Threshold Limit Values and Their Usage, 9 Annals Am. Conf. of Governmental Indus. Hygienists 141, 143 (1984). 
21. Look for an AAJ Litigation Group and a list server for your particular injury or chemical.
22. See Establishment Search, Occupational Safety & Health Admin., https://www.osha.gov/pls/imis/establishment.html.