Have you acted like a good neighbor?
February 2018 Spray 15
should have known that its product could expose the plaintiff to
that chemical.
Rebutting these claims is much more difficult. Indeed, jurors in
toxic tort cases face a difficult task. Good science is often complex
and nuanced. It develops slowly, through experiment, publication,
peer review and replication. However, toxic tort cases sometimes
raise issues on which science itself has yet to reach consensus and
jurors must decide now.
The Judge as Gatekeeper
Which scientific opinions are entitled to reach the jury? How
does the court tell the difference between the charlatan and the
Nobel Prize winner? These questions often are first raised in
pretrial motions asking the judge to exclude unreliable expert
testimony from the courtroom.
The Federal Rules of Evidence today allow expert testimony
only if it is 1) based on sufficient facts or data, 2) the product of
reliable principles and methods and 3) applied reliably to the facts
of the case. This standard derives from the U.S. Supreme Court’s
landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals,
a case involving allegations that the morning sickness drug Bendectin
caused birth defects.
The Court in Daubert emphasized the role of the trial judge
as “gatekeeper.” It directed judges to consider, in deciding what
testimony passes through them to the jury, such criteria as the
testability, peer review, known or potential rate of error and
general acceptance of the scientific methodology each expert
employed.
Daubert is the law in all federal courts. Almost 40 states also
follow some variation on Daubert. Fewer than ten states apply the
so-called Frye test, which prevailed from 1923 until the decision
in Daubert. The Frye test looks only to whether the proffered
expert testimony enjoys “general acceptance” in the relevant
scientific field.
Ten thoughts on defending
your product & your company
With this legal context in mind, it’s never too early to begin
planning your defense strategy. Positioning yourself best begins
well before your first toxic tort lawsuit. What follows are ten bigpicture
thoughts I’ve developed, over nearly 35 years of defending
toxic tort cases, about how to approach these cases at your
company—and maybe even avoid them.
1. The stakes can be high
Toxic torts are high-stakes litigation. There’s the risk of an adverse
verdict, of course, and even punitive damages. However, you
may also endure the scrutiny of boards of directors, customers,
regulators, shareholders, employees and politicians. Your case may
affect your brand as a whole or the market for similar products in
your industry. Unwanted publicity is almost inevitable; one case I
defended was the subject of more than 550 news articles.
2. Understand the morality play
Good science is necessary, but not sufficient, to defend your
product and your company. Toxic tort cases are, at least initially,
about corporate responsibility.
Good corporate citizenship is
your invitation to a fair trial
and thoughtful consideration
of the scientific issues.
Ask yourself, before you are
ever sued, how your corporate
conduct will look to the strangers
in the jury box. Have you
acted like a good neighbor?
Have you been vigilant about
the safety and health of your
consumers and workers? More
important, can you prove it?
3. Think outside the
regulatory box
Regulatory compliance alone
is rarely a complete defense
to tort liability. Simply checking a list of regulatory boxes often
results in “bad facts”—evidence of mistakes or apparent indifference—
that come back to haunt companies in court.
Don’t settle for minimum compliance. Make sure your compliance
people are talking to your litigators; they have the best sense
of how to anticipate bad facts and evaluate how your actions will
play in front of juries. Identify the critical factual assumptions
underlying your conduct, and continually ask yourself, “What if
we’re wrong?”
4. Be careful what you create
Documents, like diamonds, are forever. Anything you say—or
write or email—can and will be used against you in court. In toxic
tort cases, the most damning evidence against you may be your
own too-casual writings.
Train your employees to treat every communication as if it will
be shown to a jury of strangers. Don’t assume any document is
really privileged or confidential. Avoid undue emphasis on cost,
shorthand comments that won’t be understood without their
context, criticism of regulators or consumers, or callous-sounding
risk-benefit comparisons.