Coping with Contaminants
By Kathleen M. Reade
November/December 2000 IssueAs
a paralegal, you may be called upon to assist with toxic tort cases. This is a growing
area of law involving some fascinating and challenging cases.
At the same time, such cases can be difficult and time
consuming. Your experience, knowledge and skills can make you a valuable asset to the
trial team in a toxic tort case.
Often paralegals are asked to assist in gathering
liability and damages information, which may involve interviews with the client, gathering
documents and researching on the product involved. You may even be asked to assist in
evaluating a potential new case. To carry out these tasks, you’ll want to be aware of
what to look for.
Communication with your attorney or trial team is
extremely important in these cases. The details and intricacies of toxic tort cases are
carefully evaluated and the case is meticulously prepared for trial or possible settlement
negotiations.
If several people are exposed during the same incident,
it’s easier to document and develop the liability and damages than in the case of an
individual case of toxic exposure.
Daily Danger
Toxic tort cases are becoming more and more common. The
number and diversity of occurrences may surprise you. For example:
In Texas, more than $16.5 million was paid to 2,500
people who lived in a large area contaminated by arsenic from a cotton gin and an arsenic
processing plant. Contamination by arsenic is known to cause various health problems
including lung, bladder, liver and skin problems.
The Disney Creative Campus, proposed for a 125-acre
Superfund cleanup site in Glendale, Calif., may be contaminated by a variety of toxic
substances. State officials are investigating. In a related concern, there have been
reports of increased levels of chromium 6, a toxic heavy metal, in the Glendale area
drinking water.
The Dallas Morning News reports that federal housing
projects all over the nation are located on or near toxic waste, exposing close to 1
million families to potential health risk.
In May of this year, the Illinois Department of Public
Health released information from a preliminary study that reveals workers at the LaSalle
Electrical Utilities Company may have elevated rates of certain types of cancer due to
contamination by polychlorinated biphenyl (PCB).
This summer, the pesticide Dursban was found to be an
unacceptable risk to children and most household use was banned by the Environmental
Protection Agency. Ongoing research has revealed a higher level of contamination after
inhaling the pesticide. Researchers are trying to determine if this substance has caused
an increase in learning disabilities among children.
One of the newest areas of litigation and medical concern
involves chemical sensitivities. Many people report they have been harmed, or have
developed an impaired immune system, due to exposure of everyday household chemical
products.
When many Persian Gulf War veterans developed symptoms
similar to chemical sensitivities after returning from active duty, hearings were held.
Doctors began monitoring these veterans and their families. The monitoring is ongoing.
In a 1993 congressional hearing on chemical sensitivity
and Persian Gulf veterans, Claudia S. Miller, a doctor and environmental and occupational
medicine expert, said:
“Physicians are seeing growing numbers of patients
who report chronic and disabling symptoms following exposure to solvents, pesticides,
combustion products and buildings with poor indoor air quality. … They report a wide
range of symptoms that wax and wane over time in a seemingly unpredictable manner. They
may see 10 or more physicians, undergo costly and invasive testing, and be sent to
psychiatrists as a last resort. Some patients discover that common exposures, such as
perfume, fresh paint or traffic exhaust, trigger their symptoms. Although many patients
report being allergic to these substances, usual allergic mechanisms do not seem to be
involved. … Chemical sensitivity has been reported in several different demographic
groups: (1) industrial workers; (2) occupants of tight buildings, including office workers
and school children; (3) residents of communities whose air or water has been contaminated
by chemicals; and (4) individuals who have had personal and unique exposures to various
chemicals in domestic indoor air, pesticides, drugs or consumer products.”
Case Management
First, a note of caution. As with any case, be sure you
read the rules yourself and meet regularly with your attorney or trial team to go over and
become familiar with the rules of your jurisdiction, especially regarding discovery
matters, evidence and applicable deadlines. You’ll probably be expected to assist in
monitoring deadlines and compliance with rules.
The problem of proof in toxic cases is probably the most
difficult. First, it must be proved that the person was exposed to a harmful substance.
Then, it must be proved that the substance caused injury. Essentially, the client is put
in the position of having to prove that anything he or she came into contact with in the
past didn’t injure him or her, but the subject of the lawsuit did.
When evaluating a toxic exposure case, the client’s
history is a fundamental issue. It’s very important to question the client
specifically about any past use of, or any association with, chemicals or toxic materials,
either at home or in his or her place of employment. The personal history of the person is
critical in an attempt to pursue a toxic exposure case.
For example, if the person grew up in an agricultural
area, where pesticides were in heavy and continual use, defendants will question whether
the client’s injuries are a result of long term, insidious, exposure in his or her
home environment.
You and the trial team will want to pay close attention
to employment history and seek information on any work around solvents or other
potentially toxic materials. If the client does have any potential exposure from
work-related activities, find out as much as you can about the specific chemical agents
the client has worked around and obtain Material Safety Data Sheets (MSDS), a list of
hazardous ingredients and the associated hazards such as fire and explosion, health
hazards from exposure, emergency and first-aid procedures, toxicity information, federal
regulatory information, employee handbooks and any other information available. Also
gather information on employee health and safety training and safety equipment and devices
used.
If a toxic exposure case involves inhalation, ask the
client about any history of tobacco use, and watch for documentation in the medical
records, as it will be a factor in determining the cause of respiratory-tract problems.
You can expect some very specific discovery questions
regarding the client’s entire medical history.
Additionally, discovery will often attempt to track the
client’s exposure to every possible toxin throughout his or her entire lifetime.
You’ll probably also see discovery directed at identification of the exact toxins the
client claims harmed him or her.
Explain to the client how important it is for him or her
to give you complete details.
Educating the Jury
Demonstrative evidence can be quite effective in toxic
tort cases. You may be asked to make recommendations about what you think would be
forceful without being too complicated. Think about the most effective ways to educate the
jury.
For instance, you can convey a case involving the leak of
a toxic chemical in several ways. For example, charts and spreadsheets can be prepared
showing the legal description of affected land and symptoms or injuries to each person and
their livestock or pets.
Also, an effective visual demonstration could be a map
with an overlay or a computerized re-creation to show the toxic cloud wafting over the
land, or spilling into the local water supply and spreading throughout the area. This
could be as simple or as elaborate as the trial team wishes to make it.
Timelines and activity calendars for individuals can be
helpful to track exposure, the onset of symptoms, and medical treatment and the exposure-
affected life.
The Experts
You may be asked to locate and conduct an initial
interview with potential expert witnesses or to gather curriculum vitaes for the attorneys
to review. Keep in mind that the use of experts in toxic tort cases is crucial.
They are valuable because of their technical, scientific
and medical knowledge. Experts are also excellent resources for research data, studies,
agency reports, and such data as transport, reporting and storage regulations, and helping
to locate other specialists.
The experts and consultants often have their own
independent testing laboratories that can re-create the chemical or gas composition and
reaction of different materials in question.
At times, the following general types of testing may be
required:
- Blood and other toxicology testing of those exposed
- Chest X-rays of those exposed
- Eye, skin and other evaluation of those exposed
- Soil sample testing
- Water sample testing
- Veterinary examinations and testing of animals
- Testing on physical signs of damage to property, such as
etching on glass.
The trial team will rely heavily on the experts for
guidance based on the facts and claims of the specific case. Remember the testifying and
consulting experts must meet rigorous credential challenges.
Be sure you know exactly what will be required of each
type of expert, so the judge doesn’t prevent your expert from testifying.
The Investigation
For example, you might receive an assignment to evaluate
a case involving the death of an individual from drain cleaner fumes. Unless this is a
routine assignment for you, consult with the attorney or trial team as to specific action
you should take.
Remember, never spend money, especially big money (which
these cases can quickly require) without clearance from the attorney. Here are a few
suggestions regarding what might need to be done in this type of case:
- Find out what drain cleaner the decedent used.
- Document how you confirmed the product’s presence.
Was it found in the house? If so, who has it? Where did they get it?
- Purchase two or three bottles of the exact product for
testing. Mark the bottles appropriately.
- Find out the chemical formulation of the product. It may
be on the label. If not, call the toll-free numbers that appear on some products.
- Locate the receipt for the drain cleaner involved in the
incident.
- Order the ambulance report.
- Order the emergency room records and any additional
medical information.
- Order the autopsy records and toxicology test results.
- Prepare a timeline including such factors as:
— First awareness of the plumbing
problem
— Any attempts by the decedent, family, friends or a plumber to fix
the problem
— When the product was purchased by victim
— When the product was used
— Onset of symptoms
— Call for help
— Arrival of ambulance
— Arrival at hospital
— Time of death.
- Interview friends and family members about the
decedent’s use of the product (pay particular attention to anyone who was there
before and during the use of the product).
- If the decedent lived alone or was alone at the time of
the incident, try to find out if there were any visitors or telephone conversations that
included mention of attempts to unclog the drain.
- Start searching for experts such as chemists,
toxicologists and doctors specializing in respiratory failure and asphyxiation.
- Begin looking for potential defendants for the case.
- Find out about regulation of the chemicals. Are there
testing, storing and reporting requirements? What agency approves this particular use?
- Research insurance requirements for manufacturing,
packaging, selling and distributing the product.
- Do searches for other litigation and injuries associated
with the product.
- Inquire about any medical problems the decedent may have
had before using the product.
- Order past medical records to confirm the decedent’s
condition. Pay special attention to any indication of smoking history, allergies, asthma,
emphysema and so forth.
- Assess the decedent’s mental and emotional state to
rule out any intentional misuse of the product.
Additional Investigation
The more sources of information you can think of to
assist the trial team, the better. Here are a few other suggestions:
- Contact your state regulatory agencies and department of
health to order regulations and requirements. You may be able to get a list of everything
that was at the site of the exposure or leak.
- Follow up by ordering MSDS, which will set out the full
range of side effects, precautions and instructions to follow in the case of a leak or
exposure.
- Attempt to locate both older and newer bottles of the
product when dealing with a consumer product. The labels and warnings may tell the trial
team and experts something about the types of claims or injuries that have been associated
with the product. For example, if earlier labels read “Do not inhale” and newer
labels read “May cause neurological damage or death,” you can bet that something
has happened in the interim, or more information has become available about the hazards of
the product.
Be Organized
As with any case, it’s important for the paralegal
to analyze and anticipate. This is especially true in a large, complex case. Toxic tort
cases sometimes involve many people being affected at once. Your attorney or firm may find
itself with a large group of clients to assist. The key to managing a case with multiple
plaintiffs is organization. Prepare charts and checklists or an action item list to keep
track of what must be done and what has been done.
Consider that you’ll be managing a complicated case
multiplied by the number of plaintiffs. You’ll have to set up and find a place for:
- A file that will probably grow quite large
- Sets of medical records for each person exposed
- Lists and records of property, pets and livestock affected
- Documents on any property repair
- Documents on veterinary services and bills
- Evidence and testing materials such as chemicals that must
be stored in a safe and secure manner.
Some trial teams might prefer sets of notebooks indexed
and tabbed, while others might prefer to load everything into databases.
Before you go to a great deal of trouble getting systems
set up, consult with your attorney or the trial team about the best way to manage the
case. Just keep in mind whatever system you use must keep you very organized.
Be Creative
Think of anything that might be helpful in developing the
case. For example, if there has been toxic exposure over a certain geographical area, you
might want to order:
- Topographical maps
- Geological surveys
- Highway department maps
- State maps
Remember your trial team has to prove exposure and
resulting harm, so it’s very important in these cases to pinpoint exact locations of
release and resulting exposure.
It can be helpful to track symptoms on a large map. That
often gives the trial team a good idea of a causal connection, especially if you locate
clusters of similar symptoms that began at the same time after exposure.
Additionally, a chart for each family or individual can
be made showing each symptom, each doctor visit and so forth.
Communicate
Keep in close touch with trial team members through
meetings, action item lists and memos throughout the case. Always memo and copy the file
to trial team members on anything for which they need to be made aware.
Prepare an action item list of everything to be done by
each member of the trial team. As the case progresses, check off things that have been
done and add new items as they come to your attention.
Circulate the list to all trial team members when new
items are added. Have trial team members advise you as items are completed so they can be
checked off. Don’t remove old items from the list. This will allow everyone to see
what has already been done and thus eliminate duplications.
Be creative, come up with your own ideas for resources
and organization structures that fit your individual caseload. As you gain the expertise
needed, you may find yourself specializing in the fascinating area of law known as toxic
tort. |
