Filing a lawsuit is supposedly as American as a Big Mac®. The Seventh Amendment enshrines the right to a jury trial,” …where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….” American culture is full of depictions of civil suits, from Judge Judy’s reality TV courtroom to the 2000 film “Erin Brockovich”, all the way to novels such as “The Firm”, “The Client”, and “The Runaway Jury”, all written by attorney John Grisham and eventually turned into movies.
The fact is the U.S. only ranks fifth on the list of most litigious countries per capita, behind Germany, Sweden, Israel, and Austria. Still, there are more lawyers nationwide – 1,338,678 according to the American Bar Association – than the populations of nine states. It’s estimated that more than 40 million lawsuits are filed every year in the U.S, according to One Legal®.
This article focuses on toxic tort litigation representing a fraction of those millions of cases. Torts are civil wrongs causing someone to suffer loss or harm. Only seven percent of all lawsuits involve tort claims, and most of those arise from routine automobile accidents, according to the Washington Post.
We interviewed Mark Katchen, a certified industrial hygienist and managing principal of The Phylmar Group®, Inc., https://www.phylmar.com/ for suggestions on how to avoid becoming enmeshed in a toxic tort case. Mark has been an expert witness for both defendants and plaintiffs in toxic tort lawsuits for more than 30 years. His bottom-line takeaway: “As an EHS professional, you’ve got to anticipate situations that put your company at risk.” The Phylmar Group is a Los Angeles-based EHS and sustainability firm offering peer-to-peer forums, consulting, and training courses.
A business’s potential exposure
Many “at-risk” situations exist. Toxic tort lawsuits are personal injury or illness cases that seek redress for exposure to, and harm caused by, toxic substances. Asbestos is perhaps the best-known toxic substance linked to diseases such as mesothelioma and other asbestos-related diseases. The first asbestos product lawsuit in modern history was filed in 1966, though cases date back to the 1920s. Asbestos filings for 2020 decreased 11 percent, with 3,685 filings compared to 4,137 in 2019, according to a report by the consulting firm KCIC. Prior to 2019, asbestos filings had declined by an average of about eight percent per year since 2016.
Asbestos and silica are but two in a lengthy list of potential chemical exposures, including propane, diesel fumes, latex, PCBs, mold, benzene, CO, dioxin, lead, chlorine, and talc. Personal injury claims and civil lawsuits can also result from exposures to pharmaceutical drugs, oil spills, or pesticides.
One example of the high stakes: Approximately 38,000 lawsuits have been filed against Johnson & Johnson for claims of illnesses and deaths from its talc-based baby powder. Talc is often mined with asbestos, prompting claims that the product is a health risk to consumers. In June 2021, Johnson & Johnson was denied an appeal to reverse a $2 billion settlement awarded to 22 women who claimed baby powder gave them ovarian cancer. In the lawsuit, J&J was accused of not disclosing the presence of asbestos in its product and of not warning consumers of the health risks. The U.S. Food and Drug Administration (FDA) backed up claims that toxic chemicals, specifically asbestos, are present in several of the company’s products.
Product lawsuits have cost J&J billions in legal fees and settlements.
Also in 2021, three teachers claimed they developed brain damage due to exposure to polychlorinated biphenyls (PCBs) in light fixtures and caulking in an aging Washington state education facility. The teachers sued Monsanto, the company owning the manufacturer of the toxic chemicals, and were awarded $185 million. In South Carolina, a four-day asbestos trial quickly ended with a $32 million verdict against Kraft Heinz-owned company Metal Masters. The award included $10 million in punitive damages and the challenges of winning a “take-home” case involving the plaintiff’s alleged exposure to asbestos on her husband’s and uncle’s work clothes.
“Take-home” exposure is a concept long associated with asbestos claims and is now being asserted by workers and their family members in COVID-19-related illness and death cases. As of the third quarter of 2020, most of the 173 tort cases, alleging causation by COVID-19, were negligence cases against cruise lines. Also known as secondary or domestic exposure, “take-home” cases involve a plaintiff alleging personal injury resulting from being exposed to clothing belonging to a household member who had been directly exposed to a toxin at work.
A lawsuit was recently filed in California by a couple alleging that they contracted COVID-19 as a result of the husband’s job as a construction worker at a mill working company. The worker was transferred from one San Francisco-area work site to a second site after another employee contracted COVID-19. The couple allege that the company failed to adhere to a stay-at-home order in effect at the time that required a daily screening protocol and quarantining to prevent the comingling of workers from different job sites. The husband and subsequently his wife developed COVID-19. The woman specifically alleges that it was foreseeable that she would also develop COVID-19 through her husband. Under California law, employers have a duty to take reasonable care to prevent take-home exposure when it is reasonably foreseeable that workers, their clothing, or personal effects will carry home the toxin from the workplace.
Is COVID-19 the new toxic tort?
Many more COVID-19 claims could be forthcoming. Consider that in January 2021, between 56.7 and 74.3 million “increased-risk adults” lived with or were themselves essential workers who could not work from home, according to the Journal of American Medical Association Internal Medicine. Those at “increased-risk” are at least 65 years old, are obese, or have conditions such as diabetes, chronic obstructive pulmonary disease, kidney disease, cancer, coronary heart disease, asthma, or hypertension. The worker’s spouse in the California take-home case alleges that she falls within the “increased-risk” category — she is 65 years old and has underlying health issues.
Take-home toxic tort cases, and cases filed against the manufacturers of toxic products that made workers ill, such as asbestos, baby powder or pharmaceuticals, allow workers who otherwise would be limited to workers’ compensation to seek damages. The workers’ compensation exclusivity rule typically bars an employee from filing a civil lawsuit against his or her employer.
In general, a toxic tort plaintiff must prove three essential elements: that the substance was dangerous; that the plaintiff was exposed to the substance; and that the plaintiff was harmed by the substance. This may sound simple, but toxic tort cases can be difficult and hard to prove. Latent illnesses are the result of frequent exposure to small amounts of a toxic substance that can take decades to develop, so identifying the source of the illness can be difficult. If the plaintiff is exposed to asbestos but is long-time cigarette smoker, it can be difficult to prove it was asbestos and not the cigarettes that caused the harm.
Still, only three to four percent of toxic tort cases actually go to the courtroom. Why? Difficulty proving harm, unpredictable outcomes, potentially opening the floodgates to mass tort cases, and costly legal fees are major factors. Most all cases are settled out of court. The odds of succeeding at trials involving product liability or toxic substances are low – just 38 percent of plaintiffs won their cases, according to the U.S. Department of Justice. But if successful, product liability cases have the highest average compensation – $748,000, according to the U.S. Department of Justice.
“Depending on your actions as a professional, you could help or hinder a case,” says Mark.
Actions can include making sure all employees receive safety and health training, such as hazard recognition and control, (courses offered by the Phylmar Training Academy (https://phylmar.learningcart.com/content/Phylmar-Academy.aspx). Employers must document training dates, topics, and attendance records. It’s important to show that the training is effective. What’s the point otherwise? The Phylmar Academy has developed and offers training effectiveness studies (https://phylmar.learningcart.com/content/MembersAffiliates.aspx).
Mark says you want to be sure to make safety data sheets easily accessible to all employees, and not thrown on top of a filing cabinet collecting dust. An employee who doesn’t follow safety data sheet protective guidelines is exhibiting an at-risk behavior that can be used as a defense against a plaintiff’s injury claim. Any required personal protective equipment (PPE) should be documented as company policy; made easily accessible, such as from PPE vending machines; regularly maintained; and replaced if worn or damaged, he says. Make sure hazardous chemicals are labeled for easy, quick identification.
The need for “soft skills”
Industrial hygiene witnesses have obvious technical expertise in exposure assessment and the relationship between exposures and diseases, toxicology, and epidemiology. Over the years, the EHS profession has been criticized by some for being strong on technical knowledge, and often weak in communication and people skills. Mark teaches risk communication at UCLA and communicating technical information to a lay jury and attorneys lacking experience in toxic tort litigation is an aspect of expert witness work he enjoys.
“It’s a didactic experience,” he says. “To present complex issues to a jury of non-technical people, you must give explanations clearly, so the jury understands what the facts are, the logic behind defense arguments of proactive measures taken, and persuade the jury to appreciate your expert opinion.”
Similar advice has been given to many an EHS professional making a presentation to senior executives who know little about environmental safety and health issues. Whether talking to a jury or at a board meeting, put your ego aside, says Mark. Being pompous and using technical jargon is a turn off, he says.
There are other parallels for EHS pros who find themselves in either a courtroom or board meeting. Whether questions come from an attorney, a judge or a board member or senior executive, “only answer the question posed,” says Mark. “You can’t be pushed around or bullied. You come in with an agenda, and regardless if questioning pushes you in another direction, make sure you get your key points across. Like politicians with the press, let a question go by and answer with your agenda points.”
“Don’t allow information you give to be taken out of context,” he says. Whether in a courtroom or executive level meeting, you want to control the pace as much as you can. You can use different techniques to slow down the pace. Don’t cut off questions, but before answering, take a pause, ponder the question, perhaps let someone else first cut the silence.”
“Know your strengths and weaknesses regarding your technical knowledge before you make your presentation,” Mark says. “Make use of visual aids to buttress your explanations. Don’t back off from being frank and honest if you’re presenting an issue that’s in your knowledge wheelhouse, one of your areas of strength. “At times I’ve told clients as an expert witness that due to the complexity of the case, the time and cost involved, and perhaps evidence, it might be best for them to consider settling out of court.” If you’re a staff EHS professional who has investigated employee complaints about odors and poor ventilation, for example, be straight with senior leaders that you believe money must be spent to improve indoor air quality
“It’s like prepping for an oral exam,” says Mark. He’s specifically referring to preparing for questions from attorneys and a judge, but he just as easily can be talking about your preparation for a meeting of senior leaders of your company. People skills and critical thinking skills can be difference-makers.