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At least 25 percent of the population will contract cancer at some time in their lives. At the same time, it is commonly believed that “toxic” chemicals can cause cancer and various other illnesses. It follows that if a plaintiff has cancer or any other illness, it was undoubtedly caused by exposure to “toxic” chemicals. Of course, this doesn’t necessarily follow but it does contribute to the mindset of many potential jurors. More than any other type of litigation, lawsuits over toxic torts often involve a battle of experts attempting to influence the anxieties of the jury. This article reviews the injuries typically asserted and the experts that defense counsel may need to make their case. In the run-of-the-mill bodily injury case, a specific event or sequence of events either has or has not caused a specific injury. Not so in toxic tort cases where practically any condition arguably can be related to chemical exposure. In a typical case, a plaintiff’s medical records detail a plethora of physical conditions that can include, just to name a few, intolerance to alcohol, cigarette smoke and certain foods, diabetes, arthritis, unusual taste in the mouth, skin rashes, fatigue, loss of short-term memory, loss of libido and migraine, sinus and tension headaches. As a general rule, plaintiffs’ experts will testify that each condition, arising or worsening since the initial exposure, was either caused or exacerbated by the exposure. Taking a prophylactic approach is expensive. But in light of the enormous financial exposure in these cases, defendants may have little choice but to retain experts to testify and vigorously attack each plaintiff’s claims. Numerous medical experts tend to testify in toxic tort cases. In light of the nature of expertise and the overlapping scope of testimony, it is important that their roles be understood and delineated. THE TOXICOLOGIST Each side will inevitably have a toxicologist. Toxicology is the study of chemicals, and in a toxic tort case the use of a toxicologist is a necessity. Toxicologists who testify in behalf of plaintiffs typically take a big-picture approach. First, they will testify that the chemical involved in the case is poisonous and has been associated with numerous symptoms. Second, where cancer is an issue, they will testify that the chemical causes cancer in animals and that this indicates the chemicals are inherently carcinogenic and can cause cancer in humans. Exposure to a single molecule of the carcinogen — also referred to as a single hit — may cause cancer. In rendering these opinions, toxicologists frequently draw on their own experience administering chemicals to mice in a process called gavage. Gavage is a euphemism for the practice of jamming large quantities of chemicals down the throats of small animals, a process that, if properly described to the jury, could well leave them with an unpleasant taste. The single most important concept for the defense to bear in mind is that of the dose/response relationship. That concept was eloquently expressed nearly five centuries ago by Paracelsus, the Swiss physician who advanced medical thinking in the Middle Ages: “All things are poisonous for there is nothing without poisonous qualities. It is only the dose which makes a thing poisonous.” A defendant’s toxicologist can testify that the best way to determine a nonpoisonous or safe level of exposure to a chemical is by reference to workplace standards. These are levels that an employee can be exposed to eight hours a day for years without anticipated health consequences. A defendant’s toxicologist can also testify that it is by no means established that chemicals known to cause cancer in mice also cause cancer in people. This is especially so when testimony from a plaintiff’s expert involves testing on mice specifically bred to develop cancer. Assuming arguendo that there may be such a relationship between the chemical and cancer, there is no evidence necessarily to support a “one hit” theory. It is still necessary to determine the dose required to cause cancer in people. This can be accomplished by calculating the relationship between the dose given the mouse and the mouse’s body weight and developing an equivalent dose for a human, adjusting for the human’s body weight. When this is done for a TCE, a chemical frequently at issue in these cases, it turns out that a human would need to consume 3,000 pounds to ingest the same quantity, relative to body weight, as a mouse. Alternatively, if humans were to consume 500 parts per billion of TCE in two liters of water every day, it would take four million years to consume an amount comparable to that consumed by the mouse. Even then, the mere fact that a chemical may be carcinogenic with respect to one organ is irrelevant with respect to other organs where no link has been established. THE EPIDEMIOLOGIST Epidemiologists are scientists who study patterns of disease. A plaintiff’s epidemiologist can be expected to testify that unrelated populations exposed to the same chemical as the plaintiff have displayed the same symptoms as the plaintiff, making it more likely that the plaintiff’s symptoms are related to the chemical exposure. A defendant’s epidemiologist may respond that the studies don’t support the cited proposition and, even if they did, that the studies are unreliable or distinguishable. THE MEDICAL SPECIALIST Both sides will retain various medical specialists. Plaintiffs’ experts will testify that routine exposures to trace exposures of chemicals damage the immune system and yield an array of health effects. These experts, frequently referred to as clinical ecologists, may order an immune profile of each plaintiff that purports to measure immune system components. According to these experts, the “normal range” is that within which 66 percent of the population will fall. Any finding outside this range is characterized as abnormal and evidence of immune dysfunction. This, in turn, leads to the conclusion that most, if not all, symptoms arising since the exposure first occurred were caused or aggravated by the exposure. In response, defendants will retain experts to testify that the claimed illnesses are no different from those typically seen in the population, that there is no reason to believe that the complaints were related to the exposure and that innumerable factors are a far more likely cause of the disease. In order to present this kind of testimony, defendants will typically need to hire specialists from a variety of medical fields. Because a plaintiff’s claim is often based on supposed detrimental effects to the immune system, an immunologist may be one of the defendant’s most important medical experts. This expert will respond that there is no scientific basis to support the conclusions of the plaintiff’s immunologist and will provide the positions of various medical organizations concerning clinical ecology. This expert may further testify that the “normal range” for purposes of immune profile should be that within which 95 percent, not 66 percent, of the population fall. The expert will also testify that, based on this broader range, the plaintiff’s immune system and profile are normal. If any abnormalities still exist, a defense expert can testify as to when they arose and whether they are causally related to the exposure. EXPERTS IN RISK ANALYSES One of a plaintiff’s strongest emotional arguments is that the exposure increased that plaintiff’s risk of contracting cancer. But plaintiff’s counsel, having made this assertion, may well avoid all attempts to quantify it. A defense expert in risk analysis can play a crucial role in defusing this argument. Such an expert can be expected to testify that, assuming arguendo that animal bioassays were any indication whether animal carcinogens were human carcinogens, the plaintiff’s increased cancer risk due to the exposure at issue was de minimus, perhaps in the range of one in 1 million. As one in every three or four persons will contract cancer, everyone has a .333333 risk, and an increase of one in 1 million would only increase that risk to .333334. This provides the basis for using demonstrative evidence to depict the lack of significance of this increase. Making the same assumptions made for the chemical at issue, this expert can testify as to whether routine foods were carcinogenic and, if so, the extent of ingestion required to increase the risk of cancer by one in 1 million. For example, drinking two liters of water per day for two years, with each liter containing 500 parts per billion of TCE, presents a risk of contracting cancer identical to lifetime consumption of: one cigarette, 20 diet sodas, 3.5 pounds of peanut butter, 26 servings of brown mustard, 15 slices of fresh bread, 36 cans of beer or 90 slices of bacon. Juries may be innately predisposed to plaintiffs (and against defendants) in these sorts of cases. But with the right focus and the right experts, defendants can level the playing field and prevail. Scott P. DeVries is a partner at Nossaman Guthner Knox & Elliott (www.nossaman.com)in San Francisco. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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