GAINING INSIGHT INTO LEGAL DEVELOPMENTS RECENT DEVELOPMENTS IN TOXIC TORT LAW Eric L. Horne, Member, ESCM/Toxic Tort Litigation Group.

GAINING INSIGHT INTO GAINING INSIGHT INTO LEGAL DEVELOPMENTSLEGAL DEVELOPMENTSGAINING INSIGHT INTO GAINING INSIGHT INTO LEGAL DEVELOPMENTSLEGAL DEVELOPMENTS

RECENT DEVELOPMENTS IN TOXIC TORT LAW

Eric L. Horne, Member, ESCM/Toxic Tort Litigation Group

2

Course DescriptionCourse DescriptionCourse DescriptionCourse 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.

3

SUMMARY OF TOPICSSUMMARY OF TOPICS

I. Introduction II. Expert and Evidentiary Issues III. Reforms in Toxic Torts IV. New Products at Issue V. Defending Toxic Torts

4

I.I. INTRODUCTIONINTRODUCTIONI.I. INTRODUCTIONINTRODUCTION

5

TOXIC TORTS ARE:TOXIC TORTS ARE:TOXIC TORTS ARE: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.]

6

DAMAGES IN TOXIC TORTSDAMAGES IN TOXIC TORTS

Personal injury, illness, deathMedical expenses, wage loss, benefits

lossesGeneral (non-economic damages)

Medical Monitoring [Redland Soccer, 696 A.2d 137 (Pa 1997)]

Economic damagesCost of product, product replacement

7

TOXIC SUBSTANCESTOXIC SUBSTANCESTOXIC SUBSTANCESTOXIC SUBSTANCES

Naturally occurring substances used in commerce:

Elements: nickel, berrylium, leadCompounds: asbestos, foods

ORMan-made or synthesized substances:

Latex, drugs, exhaust fumes, food additives, pesticides, nano-particles

8

TOXIC TORTS LITIGATIONTOXIC TORTS LITIGATIONtakes several forms:

TOXIC TORTS LITIGATIONTOXIC TORTS LITIGATIONtakes several forms:

Mass Tort Litigation [large groupings of cases in “novel” trial settings]

Repetitive Tort Litigation [similar cases in succession]

Class Action Litigation

9

MASS TORT LITIGATIONMASS TORT LITIGATIONMASS TORT LITIGATIONMASS TORT LITIGATION

Examples: MDL Litigation “Mass Consolidated Trials”

“Selected issues” only are tried: General causation, punitive damages

10

REPETITIVE TORT LITIGATIONREPETITIVE TORT LITIGATIONREPETITIVE TORT LITIGATIONREPETITIVE TORT LITIGATION

Examples: Asbestos cases VIOXX cases Individual plaintiffs or groups of

plaintiffs.

11

II. EXPERT AND EVIDENTIARY II. EXPERT AND EVIDENTIARY ISSUES IN TOXIC TORT CASESISSUES IN TOXIC TORT CASESII. EXPERT AND EVIDENTIARY II. EXPERT AND EVIDENTIARY ISSUES IN TOXIC TORT CASESISSUES IN TOXIC TORT CASES

12

Distinguish: Traditional TortsDistinguish: Traditional TortsDistinguish: Traditional TortsDistinguish: 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.

13

IN TOXIC TORT CASES “CAUSE” IS SELDOM IN TOXIC TORT CASES “CAUSE” IS SELDOM CLEAR-CUTCLEAR-CUT.

IN TOXIC TORT CASES “CAUSE” IS SELDOM IN TOXIC TORT CASES “CAUSE” IS SELDOM CLEAR-CUTCLEAR-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.

14

IN TOXIC TORT CASES EVERY ASPECT OF IN TOXIC TORT CASES EVERY ASPECT OF THE “COLLISION” CAN BE OBSCURETHE “COLLISION” CAN BE OBSCURE

IN TOXIC TORT CASES EVERY ASPECT OF IN TOXIC TORT CASES EVERY ASPECT OF THE “COLLISION” CAN BE OBSCURETHE “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

15

SCIENCE PROVIDES THE BASIS TO ASSERT SCIENCE PROVIDES THE BASIS TO ASSERT LEGALLEGAL

EFFECT [INJURY] AND CAUSEEFFECT [INJURY] AND CAUSE

SCIENCE PROVIDES THE BASIS TO ASSERT SCIENCE PROVIDES THE BASIS TO ASSERT LEGALLEGAL

EFFECT [INJURY] AND CAUSEEFFECT [INJURY] AND CAUSE

EXPERTS ARE THE CENTRAL WITNESSES IN TOXIC TORT CASES

WHAT ARE THE EFFECTIVE, REAL LIMITS ON EXPERT TESTIMONY?

16

GRADYGRADY (Pa Supreme Court) and Pa RCP (Pa Supreme Court) and Pa RCP 207.1207.1

GRADYGRADY (Pa Supreme Court) and Pa RCP (Pa Supreme Court) and Pa RCP 207.1207.1

ELIMINATING THE OPPONENT’S EXPERT ALTOGETHER

FRYE [DAUBERT] ChallengesGrady v. Frito-Lay, Inc., 839 A.2d 1038 (2003)

PA RCP 207.1 procedures

17

GRADY’S INJURYGRADY’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”

18

MEDICAL DXMEDICAL DX

“A Mallory-Weiss tear occurs in the mucous membrane where the esophagus connects to the stomach, causing bleeding. Mallory-Weiss 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

19

GRADY SUED (4.05.95) and EMPLOYED 2 EXPERTS

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…”

20

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

21

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.”

22

GRADY TRIAL COURTGRADY 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

23

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

24

GRADY TRIAL COURTGRADY TRIAL COURT

No “Frye” hearing held before Rule 207.1 became effective

July 1, 2001

25

GRADY PA SUPERIOR COURTGRADY 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..”

26

Beroes tests “did not involve any novel or new scientific principles…”

AFFIRMED: Beroes could not testify to medical causation

27

SUPERIOR COURT DISSENTSUPERIOR 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.”

28

GRADY, 839 A.2d 1038 (Pa. 2003)GRADY, 839 A.2d 1038 (Pa. 2003)

REVERSES THE SUPERIOR COURTCite 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…”

29

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.”

30

CONCLUSION: Remand to Trial CourtPA 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

31

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?

32

GRADY on RemandGRADY on Remand

With Beroes excluded, MSJ for defendant GRANTED

MIL Exclude Delerme Causation OpinionGranted?

Couldn’t rely on BeroesCouldn’t rely on customer complaints

(HS, not similar)Couldn’t rely on medical articles (not

Doritos, not similar)

33

POST-POST-GRADYGRADY CASES CASESPOST-POST-GRADYGRADY CASES CASES

Hansen v. Wyeth, Inc., 72 Pa.D&C 4th 225 (PCCP, 2005) (Judge Bernstein)

McMurdie v. Wyeth, Inc., (2005 PCCP LEXIS 336) (Judge 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)

34

“Conduit” HEARSAY Issues“Conduit” HEARSAY Issues

See: Loeffel Steel Products Inc. v. Delta Brands, Inc. 387 FSupp2d 794 (ND Illinois 2005)

Learned treatise “non-exception”See: Alldridge v. Edmunds, 750 A.2d

292 (Pa 2000)

35

Scope of Expert Testimony: Limitations?

Scope of Expert Testimony: Limitations?

In Pennsylvania: Are there any?ReportMCARE Act, 40 P.S. Sec. 1303.512

(“Expert Qualifications”) Pa RE 703 and 705

36

FACT WITNESS LIMITATIONSFACT WITNESS LIMITATIONSFACT WITNESS LIMITATIONSFACT WITNESS LIMITATIONS

Self contradictory testimonyWilson v. AP Green Industries, Inc.,

807 A.2d 922 (PaSuper 2002) The “not wholly credible” standard

for reviewing affidavits on MSJsStephens v. Paris Cleaners, Inc.,

885 A.2d 59 (PaSuper 2005)

37

III.III. REFORMS IN TOXIC TORT REFORMS IN TOXIC TORT LITIGATIONLITIGATION

Special thanks to Special thanks to Arun ThomasArun Thomas, , ESCM Product Liability Group, ESCM Product Liability Group, for materialsfor materials

III.III. REFORMS IN TOXIC TORT REFORMS IN TOXIC TORT LITIGATIONLITIGATION

Special thanks to Special thanks to Arun ThomasArun Thomas, , ESCM Product Liability Group, ESCM Product Liability Group, for materialsfor materials

38

LEGISLATIVE REFORMSLEGISLATIVE REFORMSLEGISLATIVE REFORMSLEGISLATIVE REFORMS

Federal Class Action Fairness Legislation28 USC Sec. 1332, 1711, 1715

[2.2005] PA Joint and Several Liability Reforms

Dead? Federal Asbestos Litigation Reform

but cf: new “values”

39

ATTORNEY GENERALS: HELPING?ATTORNEY GENERALS: HELPING?

Court investigations of fraudulent “mass screenings” [TX]

Counter-suits: “impersonations” [WV] Investigations of claims handling [NY] But, cf:

New suits initiated

40

APPELLATE COURTSAPPELLATE 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)

41

IV. NEW PRODUCTS AT ISSUEIV. NEW PRODUCTS AT ISSUEIV. NEW PRODUCTS AT ISSUEIV. NEW PRODUCTS AT ISSUE

42

NEW CAUSAL CONNECTIONS ARISE FROM NEW CAUSAL CONNECTIONS ARISE FROM SCIENCESCIENCE

NEW CAUSAL CONNECTIONS ARISE FROM NEW CAUSAL CONNECTIONS ARISE FROM SCIENCESCIENCE

Good and bad scienceScientists assess risks, identify

diseases and recommend treatmentsLawyers and litigation “experts” assert

cause and effect

43

SPECIFIC CAUSATION IN TOXIC TORTSSPECIFIC 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.

44

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

45

“THE SCIENCE” is always changing“THE SCIENCE” is always changing

Lower detection levels

Better epidemiology

New concepts: Biopersistence, bioaccumulation

46

EXAMPLES OF “NEW” PRODUCTS AT EXAMPLES OF “NEW” PRODUCTS AT ISSUE IN TOXIC TORTSISSUE IN TOXIC TORTS

EXAMPLES OF “NEW” PRODUCTS AT EXAMPLES OF “NEW” PRODUCTS AT ISSUE IN TOXIC TORTSISSUE 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]

47

Lead in toys [Lewis v. Exxon, 348 FSupp2d 932 (WD/TN 2004)]

Diesel exhaust Benzene (in soft drinks) Ipods

[In re Apple iPod nano Products Liability Litigation, MDL 1754; N.D CA]

VOCs Mold (?) Genetically-engineered Food

48

““PFOA”: A TOXIC TORT IN THE MAKINGPFOA”: A TOXIC TORT IN THE MAKING““PFOA”: A TOXIC TORT IN THE MAKINGPFOA”: 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?

49

PFOA’s ARE USED IN MAKING COUNTLESS PFOA’s ARE USED IN MAKING COUNTLESS CONSUMER PRODUCTSCONSUMER PRODUCTS

PFOA’s ARE USED IN MAKING COUNTLESS PFOA’s ARE USED IN MAKING COUNTLESS CONSUMER PRODUCTSCONSUMER PRODUCTS

DuPont Teflon© Stain and water resistant fabrics,

food wrappings, non-stick cookware Almost all Americans are using these

products

50

EPA WAS PROMPTED TO CHANGE PFOA EPA WAS PROMPTED TO CHANGE PFOA STATUS BY RECENT RESEARCHSTATUS BY RECENT RESEARCH

EPA WAS PROMPTED TO CHANGE PFOA EPA WAS PROMPTED TO CHANGE PFOA STATUS BY RECENT RESEARCHSTATUS 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”

51

RESULT?RESULT? RESULT?RESULT?

EPA proceeding against DuPont IN RE Teflon Products Liability

Litigation, S.D. Iowa, MDL No. 1733 (filed 2/21/2006)

52

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. 

53

V. DEFENDING THE TOXIC TORT V. DEFENDING THE TOXIC TORT CASECASE

V. DEFENDING THE TOXIC TORT V. DEFENDING THE TOXIC TORT CASECASE

54

EDUCATING THE COURTEDUCATING THE COURTEDUCATING THE COURTEDUCATING THE COURT

General and Specific Causation Avoiding the “Presumption of

Liability” Distinguishing your defendant among

the group

55

56

INFLUENCING CASE MANAGEMENTINFLUENCING CASE MANAGEMENTINFLUENCING CASE MANAGEMENTINFLUENCING 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

57

USING PROCEDURAL DEFENSESUSING PROCEDURAL DEFENSESUSING PROCEDURAL DEFENSESUSING PROCEDURAL DEFENSES

Venue Considerations

Using Federal law: Pre-emption, removal

58

““DEFENDING” INDUSTRY SCIENCEDEFENDING” INDUSTRY SCIENCE““DEFENDING” INDUSTRY SCIENCEDEFENDING” 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”

59

WILD CARDSWILD CARDSWILD CARDSWILD CARDS

Monitoring the MonitorsExample: FDA “Drug Watch”Plaintiff’s counsel’s websites

New Experts: “TOXICO-GENOMICS” ?