Toxic Tort

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This capability means that our lawyers quickly recognise and understand the critical scientific issues in each matter, making our service more cost-effective and efficient. With the most extensive class actions experience of any Australian law firm, our lawyers are best positioned to advise clients on the unique impact of a toxic tort class action, and the specialised legal strategies required to deal effectively with class actions claims.

We also regularly provide risk management advice in relation to potential exposures to these materials. We also have specific experience in complex property and environmental litigation stemming from the impact of hazardous and toxic substances. Our experience includes acting in litigation involving agricultural products, environmental pollution, contaminated land and microbiological pest control.

The broad range of our experience also enables us to advise clients on their potential exposure to future liabilities, and to develop legal strategies to reduce those risks. The diverse environmental, health and safety issues involved in these matters often requires input and evidence from scientific experts, and we have developed and maintain close relationships with Australian and international experts in fields including neuroscience, clinical toxicology, psychopharmacology, immunology and pathology.

Our experience working with scientific experts in litigation matters gives our clients access to the most comprehensive and effective expert advice available. International automotive manufacturer: We are acting in relation to a number of cases across various jurisdictions involving mesothelioma and asbestosis claims caused by materials in automotive parts and machinery. These matters involve extensive analysis of complex and cutting-edge toxicological and industrial hygiene issues, along with emerging theories of liability in negligence, particular with respect to mesothelioma.

These claims frequently involve multiple parties with numerous potential workplace exposures, and require a sophisticated assessment of broader strategic commercial and litigation considerations. Mining industry: We have advised a mining company on its future liability where workers may have been exposed to a carcinogen in the workplace; many carcinogens don't have a noticeable impact for 20 to 40 years after exposure, requiring careful assessment to determine future potential liability.

However, most laws do not have enough detail to be put into practice right away. EPA is called a regulatory agency because Congress authorizes us to write regulations that explain the critical details necessary to implement environmental laws. The purpose of these standards is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees.

This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training. Superfund is the name given to the environmental program established to address abandoned hazardous waste sites. This law was enacted in the wake of the discovery of toxic waste dumps such as Love Canal and Times Beach in the s.

It allows the EPA to clean up such sites and to compel responsible parties to perform cleanups or reimburse the government for EPA-lead cleanups.

Causation and Toxic Tort Litigation

This Web site provides topical information for the general public and for those involved in the Superfund program. On this site, you'll find information about Superfund sites in your area, the health effects of common contaminants, cleanup efforts, and how you can become involved in cleanup activities in your community. Certain substances are generally excluded from TSCA, including, among others, food, drugs, cosmetics and pesticides. Department of Health and Human Services. ATSDR serves the public by using the best science, taking responsive public health actions, and providing trusted health information to prevent harmful exposures and diseases related to toxic substances.

With more than , members, the American Chemical Society ACS is the world's largest scientific society and one of the world's leading sources of authoritative scientific information. A nonprofit organization, chartered by Congress, ACS is at the forefront of the evolving worldwide chemical enterprise and the premier professional home for chemists, chemical engineers and related professions around the globe.

NTSIP gathers information about harmful spills into a central place. People can use NTSIP information to help prevent or reduce the harm caused by toxic substance incidents. For comparison against many occupational health standards, it is necessary to measure quantitative exposure levels in the workplace. Downey v. Here, the appellate court agreed that Dr. Thus, the Superior Court concluded that Dr. Here's an interesting expert analysis that arises in the less common Frye context. In Chesson v. Montgomery Mut. Ritchie Shoemaker as their expert. Montgomery Mutual, however, sought to exclude Dr.

At the hearing, Dr. The plaintiffs appealed. State, Md. United States, F. The court stressed that on cross-examination, Dr. According to Dr. Defendants called a Dr. Cheung who testified that Dr. Most importantly, Dr. Burton, F. The Court of Appeals agreed with the intermediate appeals court, finding that the expert's failure to account for the level of mold exposure was a fundamental flaw in his methodology. Without an expert's admissible opinion on causation, plaintiffs were unable to prove that mold in the walls of their office building was the cause of their neurocognitive and musculoskeletal symptoms.

An Illinois appellate court recently affirmed the trial court's decision overturning a significant jury verdict against various defendants accused of conspiring to conceal the dangers of asbestos. See Gillenwater v. Honeywell International Inc. Fourth District, Plaintiff allegedly contracted mesothelioma as a result of exposure to asbestos in his job as a pipe-fitter.

Gillenwater never worked for any of the companies in the appeal, but alleged they had engaged in a civil conspiracy with one another and the distributor to conceal the hazards of asbestos-containing products.

Toxic Tort / Hazardous Substances: Segal McCambridge Singer & Mahoney

Readers understand that plaintiffs will often allege a conspiracy to draw in deep pocket defendants and to attempt to utilize one defendant's documents against another defendant. The case went to trial and the jury returned a verdict for significant compensatory and punitive damages against the three defendants.

The court of appeals found that while there was some evidence that these defendants had some knowledge of the risks of asbestos, there was not sufficient evidence for a jury to conclude that they conspired together to conceal that knowledge. Honeywell and Abex appeared to be nothing but bystanders, allegedly committing alleged wrongs that had nothing to do with plaintiff.

Here the alleged active wrongdoer was Owens-Corning. The court reviewed the other alleged interactions on studies and warnings, shared directors, stock ownership, contracts, etc. But also noted that those companies terminated their relationship more than a decade before Gillenwater was first exposed to the products. The court cited numerous federal cases for the proposition that once a conspiracy has been terminated, that conspiracy claim cannot be extended by suggesting a second, subsidiary conspiracy to keep the original one under wraps.

Here, the defendants appeared to be engaging in parallel conduct by which they allegedly concealed the dangers of their own asbestos-containing products in order allegedly to maximize their own profits. Defendants in a fracking toxic tort case last week petitioned the Colorado Supreme Court to overrule an appeals court decision which had struck down a Lone Pine order issued by the trial court in the case.

William G.


Strudley et al. The court required plaintiffs, before opening full two-way discovery, to make a prima facie showing of exposure and causation, a form of a Lone Pine order. See Lore v. Lone Pine Corp. L, WL N.

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Defendants sought an extension of time for filing a petition for writ of certiorari, which the Colorado Supreme Court granted. The Ohio appeals court ruled recently that a plaintiff could not pursue her chemical exposure toxic tort suit since her sole general causation expert's testimony was properly deemed unreliable by the lower court. See Cooper v. BASF Inc.

The plaintiffs alleged they contacted a defendant Pest Control Company due to a termite infestation in various parts of their home, and the company applied Termidor SC, which contains the chemical fipronil, inside an open wall in the Coopers' bedroom, underneath a bathroom drain which is accessed through an opening under a sink cabinet, and around the perimeter of the house. Cooper was hospitalized complaining of various symptoms and was diagnosed with hypothyroidism and related encephalopathy, of unknown etiology.

The plaintiffs claimed that the symptoms were caused by alleged exposure to pesticides. The Coopers filed a complaint alleging: 1 negligence against the chemical manufacturer and the Pest Control Company; 2 strict products liability claims; and 3 fraud against the Pest Control Company.

The Coopers identified Richard L. Lipsey, Ph. Defendants moved to exclude the expert and for summary judgment. The trial court granted the motions, finding that the expert had not based his opinion regarding general medical causation on reliable scientific, technical, or other specialized information.

None of the articles or studies he reviewed showed a causal connection between Fipronil exposure and plaintiff's disease. The animal studies cited by Dr. Lipsey failed to establish any correlation across species, and the expert had to admit that the animals used were not appropriate models for humans. The court of appeals affirmed. Ohio follows the Daubert test. And here the expert reached this conclusion without adequate scientific proof of a causal link between fipronil and hypothyroidism in humans. The record contained no evidence of any generally accepted methodology that has been adopted by the scientific community to establish a causal link between fipronil and hypothyroidism in humans.

Cooper was allegedly exposed to, and 3 there was no biological sampling done on Mrs. Cooper's blood or fatty tissue to prove that she had been exposed to a significant level of the chemical. Without an expert opinion, summary judgment was appropriate as plaintiff could not prove the causation element of each cause of action. The California Supreme Court agreed last week to review an asbestos case involving an important failure to warn theory.

Special Electric Co. S Cal. Plaintiff Webb was diagnosed with mesothelioma, which he attributed to his exposure to asbestos products, including Transite pipe allegedly manufactured by Johns-Manville at its plant in Long Beach, California, which allegedly contained asbestos supplied to it by Special Electric. Transite pipe was four inches in diameter, and came in five-foot and sometimes ten-foot lengths. It was typically used for water-heater venting. Special Electric argued also that it had no duty to take measures to warn allegedly unsophisticated downstream users of products containing its asbestos, such as Webb, because Special Electric could rely on Johns-Manville to provide those warnings.

The trial court agreed, concluding that "telling Johns-Manville about asbestos is like telling the Pope about Catholicism. Plaintiff appealed, and the court of appeals reversed. Much of the discussion was on procedural issues timing and notice, etc. But, nevertheless, reversed, finding that whether all the asbestos shipped to Johns-Manville had warnings, whether the warnings were adequate, and whether reasonable efforts to warn downstream users could have been undertaken by Special Electric, were issues of fact. The state Supreme Court will consider the issues now, and tell us what happened to the sophisticated user doctrine.

The case arguably can be limited to unique facts, procedural posture, and some strange jury instructions, but perhaps the high court will clarify that the California courts cannot ignore the sophisticated user doctrine and its impact on duty to warn.

Toxic Tort & Environmental

Readers know that too often the necessary administrative procedures set in place in a mass tort are enforced on a one-way basis, costing defendants money and resources without requiring plaintiffs to comply with necessary discovery in a timely fashion. The Third Circuit recently affirmed a lower court decision to exclude from an MDL workers allegedly exposed to asbestos at work when these plaintiffs failed to provide full asbestos exposure histories.

VI , numbers 3d Cir. MDL once included more than , plaintiffs and more than eight million claims. By the time Judge Robreno inherited the MDL in , thousands of cases had been settled or otherwise resolved. Judge Robreno has been overseeing the progress and resolution of the remaining cases since then.

In the asbestos MDL No. The district court dismissed several cases in , holding that the plaintiffs' submissions regarding their alleged medical conditions did not meet Administrative Order Specifically, Judge Robreno determined that the Plaintiffs' submissions were fatally flawed in that they failed to include specific histories of Plaintiffs' exposure to asbestos. Plaintiffs' counsel disputed that interpretation of the order as requiring a complete occupational history of asbestos exposure, and offered simply a diagnosis of an asbestos-related disease.

At no point did Plaintiffs offer supplemental AO 12 submissions with more complete exposure histories. The Third Circuit agreed that the language of AO 12 is broad, but saw no reason not to defer to the District Court's interpretation of AO 12 that requires plaintiffs' submissions to include asbestos exposure history. And it was not an abuse of discretion — especially given the District Court's experience overseeing the MDL proceedings — to require a complete occupational and environmental exposure history.

The FACT Act would require the various asbestos settlement trusts to make public disclosures detailing the claims to the trust and to provide certain information about claims on request but not confidential medical records. The amendments were proposed by Democrats opposing the bill. The Full Committee Markup of H. As asbestos liabilities force more and more companies to file for bankruptcy, legislators need to preserve assets for appropriate claimants; the secrecy and abuse associated with the trusts undermines this as well. Interested readers should note that the 9th Circuit has now set the en banc oral argument in this case for June 25th.

The jury found in favor of plaintiffs. In failing to do so, the district court neglected to perform its gatekeeping role. Our readers know how Prop 65 has created numerous issues for product sellers and created much litigation mischief in the hands of overzealous plaintiffs.

Interesting that earlier this week, California Gov. Jerry Brown D said he now advocates reforms to California's law to frivolous lawsuits that do nothing to protect consumers. Voters approved Proposition 65 in The measure requires the Governor to annually publish a list of chemicals allegedly "known to the state to cause cancer or reproductive toxicity. The administration is worried about "lawyers who bring nuisance lawsuits to extract settlements from businesses with little or no benefit to the public or the environment. A federal court recently reaffirmed its prior ruling that a plaintiff's expert failed to establish causation in a suit alleging increased risk of cancer from radioactive scale deposited inside pipes.

See Hill v. Exxon Mobil Corp. He alleged he was exposed to radioactive scale naturally occuring radioactive materials or "NORM" when he cleaned pipes at work. Hill sued Shell Oil Co. A fundamental cause in fact issue. See Rosenzweig v. Accordingly, this evidence was not "newly discovered. Int'l Paper Co. Motion denied. The House Subcommittee on Energy and Environment held a hearing earlier this week to review federal hydraulic fracturing research activities. Readers may recall we have posted about fracking issues before.

Chairman Lamar Smith R-Texas noted a widely publicized handful of unsubstantiated charges that fracking pollutes ground water; the EPA is at the center of this debate, linking fracking to water contamination in at least three cases, only to be forced to retract their statements after further scrutiny. Witnesses included:. Geological Survey Dr. The Administration has yet to even release a draft for public comment. Environment Subcommittee Chairman Chris Stewart noted that largely as a result of the expanded use of cheap natural gas from to , the U.

It is perhaps ironic that many of the most passionate advocates for action on climate change also oppose fracking. The unique and overwhelming features of the grandfather of all mass torts, asbestos, has created bad law in many jurisdictions, procedurally and substantively.

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  • Last year, we posted about a Pennsylvania decision that rejected the plaintiff position that an expert can opine that any level of exposure to a toxic substance is a substantial contributing factor to a disease that is governed by a dose-response relationship. Boomer, No. He testified that his rotations included supervising inspections at a Ford dealership. His own work and the work of those immediately around him involved packing sand into pipes so that the pipes could be bent to fit the ships. Defendants challenged the use of the substantial contributing factor language as contrary to prevailing Virginia law as to causation.

    The court reviewed the traditional Virginia law of causation, which in most instances requires proof that but for the defendant's actions the plaintiff would not have been injured. The 'but for' test is a useful rule of exclusion in all but one situation, said the court: where two causes concur to bring about an event and either alone would have been sufficient to bring about an identical result.

    Mesothelioma is virtually a signature disease: it was uncontroverted at trial that in most situations the cause of mesothelioma is exposure to asbestos at some point during an individual's lifetime. The long latency period of the disease, however, makes it exceedingly difficult to pinpoint when the harmful asbestos exposure occurred and, in the presence of multiple exposures, equally difficult to distinguish the causative exposures. Further complicating the issue, said the court, although numerous individuals were exposed to varying levels of asbestos during its widespread industrial use before safety measures became standard, not all persons so exposed developed mesothelioma.

    It is not currently known why some are more susceptible than others to developing mesothelioma, or why even comparatively lower levels of exposure may cause mesothelioma in some individuals while others exposed to higher dosages never develop the disease. Certainly, said the court, if the traditional but-for definition of proximate cause was invoked, the injured party would virtually never be able to recover for damages arising from mesothelioma in the context of multiple exposures, because injured parties would face the difficult if not impossible task of proving that any one single source of exposure, in light of other exposures, was the sole but-for cause of the disease.

    The lower court thus used a "substantial factor" test. In the last several decades, with the rise of asbestos-based lawsuits, the "substantial contributing factor" instruction has become prominent in some other jurisdictions. Pittsburgh Corning Corp. Owens-Illinois, Inc. In sum, some jurors might construe the term to lower the threshold of proof required for causation while others might interpret it to mean the opposite. The latest Restatement provides a rule for finding each of two acts that are elements of sufficient competing causal sets to be factual causes without employing the substantial-factor language of the prior Torts Restatements.

    There is no question of degree in the new version. It holds that if multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in the absence of the other act s , each can be regarded as a factual cause of the harm. A defendant whose tortious act was fully capable of causing the plaintiff's harm should not escape liability merely because of the fortuity of another sufficient cause. The acts themselves do not have to be concurrent, so long as they are operating and sufficient to cause the harm contemporaneously.

    That approach allows for a finding of causation when multiple exposures combine to reach the threshold necessary to cause a disease, allowing parties who were responsible for some portion of that threshold to be held liable. On remand, the experts must opine as to what level of exposure is sufficient to cause mesothelioma, and whether the levels of exposure at issue in this case were sufficient. Illinois Central Railroad. The issue is forum non conveniens. Brendan notes that the Illinois Supreme Court ruled that the trial court abused its discretion when it denied defendant Illinois Central's forum non conveniens motion.

    The state Supreme Court reversed the appellate court judgment affirming the trial court's denial, and remanded the case to the trial court with instructions to dismiss. Per Brendan, this decision will be helpful to defendants as it emphasizes that Illinois trial courts must grant a defendant's forum non conveniens motion if the plaintiff has no significant connection to the forum and there is an alternative forum that is more convenient. Brendan notes that Fennell involved plaintiff's year exposure to asbestos-containing products while working for Illinois Central.

    Fennell lived and sometimes worked in Mississippi, but he also worked across the country for the railroad, and he alleged that he was exposed to asbestos-containing products wherever he worked. In , Illinois Central filed a motion to dismiss, and the Mississippi court dismissed the case without prejudice.

    He alleged that he was exposed to asbestos and other toxic substances while working for Illinois Central, but he did not allege an injury in Saint Clair County. In May , Illinois Central filed a forum non conveniens motion. Brendan observes that the trial court denied the motion because: 1 Illinois Central's lawyers had significant evidence in Saint Clair County, 2 two of Fennell's important witnesses would testify in Illinois but not in Mississippi, 3 Saint Clair County is closer for Fennell's Chicago-based expert witness than Mississippi, 4 Saint Clair citizens have an interest in "traveling asbestos and other harmful substances"; and 5 Saint Clair County's dockets are uncongested.

    Illinois Central appealed, and a divided appellate-court panel affirmed. Illinois Central appealed to the Illinois Supreme Court, and several amici filed briefs. A trial court's denial of a forum non conveniens motion is reviewed for abuse of discretion. Under the forum non conveniens doctrine, a trial court may decline jurisdiction if it appears that another forum can better serve the parties' convenience and the ends of justice. When ruling on the motion, trial court must consider what forum the totality of public and private-interest factors favor. Brendan notes that private-interest factors include the parties convenience, access to evidence, ability to compel witnesses to appear for trial, cost of presenting willing witnesses at trial, possibility of viewing the premises at issue, and any other factors that make a trial "easy, expeditious, and inexpensive.

    Public-interest factors include the congestion of the forum's courts, the unfairness of imposing jury duty on residents in a community unconnected to the litigation, and the interests of local communities in deciding local issues. The Supreme Court held that the trial court abused its discretion because it failed to properly apply the public and private-interest factors.

    Brendan points out that Fennell was from Mississippi and his cause of action arose outside Illinois. The Supreme Court noted that trial court ignored that Fennell initially filed in Mississippi and re-filed in Illinois. It emphasized that Fennell lives less than 25 miles from the Mississippi courthouse, but miles away from the Saint Clair courthouse, and that almost no one connected with Fennell's case lives in Illinois. Nothing suggested that having the case in Mississippi would unduly hamper the parties' discovery. And it held that Fennell's Chicago-based expert's convenience was entitled to little weight because he is compensated for his travel, and factoring the convenience of plaintiffs' expert would make forum shopping even easier.

    In contrast, the Mississippi-based witnesses could not be compelled to testify in Saint Clair County, and bringing the willing witnesses there would cost more. Assuming that the law firm had many Illinois Central documents relevant to the case there, the Illinois Supreme Court noted that modern technology allows litigants to copy and transport the documents long distance easily and cheaply. And even assuming that Saint Clair County citizens had some interest in "traveling asbestos and other harmful substances," they have a greater interest in not being burdened with litigation they have no connection to.

    Merrell Dow Pharm. See Henry Barabin et al. He also took pieces of dryer felt home to use in his garden. In November, , Plaintiff was diagnosed with pleural malignant epithelial mesothelioma. It was undisputed that exposure to respirable asbestos can cause mesothelioma general causation. The district court excluded one Dr. Millette , requiring disclosure to the jury that Dr. The district court did not hold a Daubert hearing. After the jury verdict and post-trial motions, defendants appealed.

    The court of appeals noted that in its role as gatekeeper, the district court determines the relevance and reliability of expert testimony and its subsequent admission or exclusion. See Ellis v. Costco Wholesale Corp. Admission or exclusion under Daubert rests on the scientific reliability and relevance of the expert testimony. Specifically, the district court is charged with determining whether the proffered expert testimony is trustworthy. In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity. Scientific validity is, in turn, assessed in large part by the degree to which the theories propounded by the expert have been subjected to and survived scrutiny in the relevant scientific community.

    The "decision to admit or exclude expert testimony is often the difference between winning and losing a case. Unfortunately, said the court of appeals, because no Daubert hearing was conducted as requested, the district court failed to assess the scientific methodologies, reasoning, or principles Dr. Cohen applied. None of the Daubert factors was considered. Rather than making the required determinations, the district court left it to the jury to determine the relevance and reliability of the proffered expert testimony in the first instance, said the panel.

    The district court committed reversible error when it failed to assess the proferred expert testimony for relevance and reliability, concluded the court. Readers know that medical monitoring is a recurring topic here at MassTortDefense. Mitchell McCormick, et al. Specifically, medical monitoring for uninjured plaintiffs 1 encourages highly speculative claims and equally conjectural awards; 2 diverts scarce medical resources away from truly injured individuals who need them most; 3 subjects defendants to open-ended liability; and 4 places significant strain on a judicial system that is generally ill-equipped to formulate and then supervise complex medical monitoring regimes.

    Such fears are reflected in the prevailing trend in other jurisdictions to reject such claims. See Rhodes v. Raytheon Co. The defendants cited additional authority: Hinton v. Monsanto Co. We are unprepared to embark upon such a voyage. Brands, Inc. Wyeth-Ayerst Labs. Home Prods. These authorities explain that, while well-intentioned, courts allowing recovery for increased risk and medical screening may be creating significant public policy problems.

    Dow Chem. Brush Engineered Materials, Inc. But see Bower v. Westinghouse Elec. Fluor Corp. Readers know that medical monitoring claims are a focus of MassTortDefense. In a recent case, a federal trial court granted summary judgment on a medical monitoring claim with an opinion that makes a salient point. See Sahu v. Union Carbide Corp. June 26, But our focus in this post is on the medical monitoring claims. This analysis is a refreshing counterpoint to the alarming feature of some recent medical monitoring decisions, in which the difficulty of identifying and ascertaining class members is somehow de-coupled from class certification and from the elements of the medical monitoring claim, and somehow relegated to an "administrative" feature of the relief program.

    See Union Carbide Corp. Plaintiff Aubin worked construction and alleged he routinely handled and was otherwise exposed to joint compounds and ceiling textures that contained asbestos. He contracted mesothelioma and sued. Defense representatives testified that along with an OSHA-mandated warning label, Union Carbide regularly updated its clients regarding the dangers of asbestos as such dangers came to light.

    Marcotte, So. That motion was denied. Second, the trial court erred in instructing the jury that Union Carbide had a duty to warn end-users without also instructing the jury that a defendant could have discharged this duty by adequately warning the intermediary manufacturers, and reasonably relying on them to warn end-users.

    Toxic Tort Monitor – February 20, 12222

    Accordingly, the court remanded for a new trial as to the warning defect claim. Kohler, So. Regarding the warnings claim instructions, reversible error exists where the trial court delivers an instruction that reasonably might have misled the jury. This was also error.

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    • The trial court, however, did not instruct the jury on any of these factors. See Johnson v. Arkema Inc. June, Plaintiff Johnson worked as a machine repairman at a glass bottling plant in Waco, Texas from May to the end of C-4 Hoods are utilized to apply a chemical coating to the glass bottles as the bottles are transported along a conveyor belt. According to Johnson, the C-4 Hood he worked near to on those two occasions failed to perform its proper functions, resulting in his alleged exposure to harmful chemicals.

      Plaintiff sued. Arkema also filed a motion for summary judgment, contending that absent those experts, Johnson was unable to present scientifically reliable evidence establishing that exposure to the chemicals can cause restrictive lung disease and pulmonary fibrosis his alleged injury types. The district court excluded Dr. In forming a reliable opinion regarding the effects of exposure to a particular chemical, an expert may extrapolate data from studies of similar chemicals. BUT to support a conclusion based on such reasoning, the extrapolation or leap from one chemical to another must be reasonable and scientifically valid.

      Thus, courts are free to reject a theory based on extrapolation when there is simply too great an analytical gap between the data and the opinion proffered. Plaintiff also relied on general hazard language in defendant's own MSDS. To the contrary, in exercising its discretion as a gatekeeper, a court may refrain from treating a MSDS as reliable until it is presented with scientific evidence justifying the relevant statements found within the MSDS.

      This methodology results from the preventive perspective that the agencies adopt in order to reduce potential public exposure to possibly harmful substances. Willamette Industries, Inc. As to the other expert, Dr. In other words, the suspect has to be reasonably and reliably "ruled in. Consequently, the fact that Dr. Grodzin claimed he conducted a differential diagnosis did not save his opinion from the same fate as Dr.

      Thus, this part of the case was remanded. See Betz v. Pneumo Abex LLC et al. J Pa. May 23, The issue is causation. Readers know that a tort plaintiff has to establish cause in fact and proximate cause. Cause in fact can mean "but for" the defendant's conduct, the plaintiff would not have been injured, or, in some cases, that the conduct was a "substantial factor" in causing the harm. In toxic tort cases, cause in fact includes general causation the product can cause this type of disease and specific causation the product did cause this plaintiff's disease. Often, epidemiological proof is used to establish causation in a toxic tort context, but there are strengths and limitations to that type of evidence, which can show an association between the product and the disease, and which typically demonstrates that there is some specific relationship between the amount of exposure to the product and the amount of disease seen in the exposed population a dose-response relationship.

      But what proof a plaintiff has that an extremely low level of exposure to a given defendant's product can or did cause his disease is a crucial issue in many toxic tort contexts. They say this even as they admit, as the epidemiology shows, that at all the measurable levels of exposure no one can find a plaintiff exposed to just one fiber asbestos-related disease demonstrates a clear dose-response relationship.

      Back in , plaintiff Simikian commenced a product liability action against several defendants, asserting causes of action grounded on multiple theories including strict liability. Simikian alleged that, throughout a forty-four year career as an automotive mechanic, his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma. See generally Summers v. Certainteed Corp. Plaintiffs relied on a Dr. Each of the exposures to asbestos allegedly contributes to the total dose that causes mesothelioma and, in so doing, shortens the period necessary for the mesothelioma to develop.

      The trial court requested expert reports, and then held an evidentiary hearing. The Common Pleas court centered its focus on the use of extrapolation, from high doses down to a single finer, which it found to be a linchpin of Dr. At the hearing, the expert admitted he did not consider epidemiology appropriate to consult regarding low-dose exposures, offering an "analogy" that has been used in the example of a glass of water.

      One drops marbles into the glass of water until the water finally overflows from the glass; is it the first marble or the last marble that causes the glass to overflow? Well, both, or all of them, said the plaintiff expert. Maddox agreed that scientists presently do not know the mechanism by which asbestos causes mesothelioma. Additionally, he recognized that his opinions were not based on any sort of direct attribution, but rather, were grounded entirely upon an assessment of increased risk.

      The trial court sustained the Frye challenge and precluded the plaintiffs from adducing the any-exposure opinion. Overall, Judge Colville could find no credible explanation for how it was that Dr. Plaintiff appealed, and the Superior Court reversed, basically disagreeing with every aspect of the trial court's analysis. Chevron Chemical Co. Defendants then appealed. Appellants and their amici offered extensive critiques of Dr. The state Supreme Court noted that this case was selected among test cases for the any-exposure opinion as a means, in and of itself, to establish substantial-factor causation.

      In this regard, Dr. Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose-responsive. Maddox himself explained needed to be considered in trying to estimate the relative effects of different exposures: potency, intensity, duration. The court took on directly the analogy offered by Dr. From this frame of reference, it is very difficult to say that a single one of the smallest of microscopic marbles is a substantial factor in causing a glass of water to overflow. Readers will recall our earlier postings on "fracking"; natural gas from shale rock promises to provide cleaner, abundant energy for the U.

      New estimates show that we have enough of this natural gas to last years at current consumption rates. The second biggest natural gas field in the world -- the Marcellus -- runs through your humble blogger's home state of Pennsylvania. The energy, jobs, taxes, and independence that tapping into this domestic resource will bring has spurred much interest and anticipation. The method to extract the gas from the rock is called hydraulic fracturing, or fracking, which like any technology, carries potential risks. However, the potential drilling into the Marcellus Shale has caught the attention of the plaintiffs' bar, including personal injury and environmental class action lawyers.

      Plaintiffs lawyers are openly speculating about everything from gas leaks and fires, to environmental groundwater impacts, to the problems of large tanker trucks on small rural roadways. See Strudley v. Antero Resources Corp. Plaintiffs sued the gas exploration company and drilling equipment contractor, alleging that the hyrdrofracking contaminated their well water.

      Construction of the Wells allegedly began on August 9, By January 10, , plaintiffs had moved out of their home and away from Silt. L WL N. This is particularly telling, since Mr. The case reflects an effective, but also appropriate, use of the Lone Pine order. See Daley v. Chesterton Inc. Daley was diagnosed with pulmonary asbestosis and squamous-cell carcinoma of the right lung.

      He sued a dozen asbestos defendants.

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