Toxic tort lawsuits can arise in each of the three in consumer, occupational Toxic
Torts
7. Don’t take comfort in the burden of proof
In the early years of toxic tort litigation, commentators often
wrote about how difficult it would be, given what we know about
the toxicology and epidemiology of low-dose exposures, to prove
toxic causation of illness in the courtroom. However, experience
has shown otherwise. “Proof” at trial merely means winning the
requisite number of votes from lay jurors to render a verdict.
The burden of proof in a toxic tort case isn’t “beyond a reasonable
doubt.” Plaintiffs typically need to prove their case only by
a “preponderance of the evidence”—that is, just enough evidence
to tip the scales ever so slightly in their favor. They needn’t prove
that the product was the sole cause of the injury; it’s enough that
it be a “substantial contributing factor.”
Time and time again, we hear that jurors have effectively
reversed the burden of proof. Given their natural sympathy for
their injured neighbors, many jurors will ask themselves only
whether there is any possibility that the defendant is responsible
for the harm to the plaintiffs. They look to the defendant to
disprove the plaintiffs’ allegations. Be prepared to do so.
8. Never take opposing experts’ credentials, integrity
or even competence for granted
Don’t be fooled by the paper credentials of plaintiffs’ experts.
Unfortunately, toxic tort litigation seems to bring out the
pretenders and the advocates. A little investigation can reveal the
truth behind the curriculum vitae or blunders by the expert. I’ve
had the pleasure of cross-examining, for example:
5. Recognize that
you may start
from behind
It’s been said that “a
lie gets halfway down
the street before the
truth can even pull
its boots on.” When
it comes to talking
about chemical
hazards—whether in
court, to the press or
at a public meeting—
you’re already
behind the starting
line. Plaintiffs’
allegations typically
conform to popular
misconceptions about
chemicals: that any dose of a “toxic” chemical is hazardous, that
synthetic chemicals are more dangerous than natural compounds
and so on.
Acknowledge these beliefs, then test them with good science.
Build credibility slowly. Show compassion and understanding
for the plaintiffs and others who may genuinely believe they have
been harmed.
6. Personalize—don’t just humanize—your
company
It is almost a cliché among defense lawyers representing
corporations that you must “humanize”
your company in front of the jury or the public.
Too often, this takes the form only of pointing
out that you sponsor the local Little League team
or that your shareholders include church ladies
and school teacher pension funds.
In real life, product defects, worker exposures
and environmental contamination are usually
the unintended results of ordinary people acting
conscientiously. I call this my “some guy” theory
of toxic tort defense; the decisions that led to the
lawsuit were made not by unfeeling corporate
entities but by human beings, regular folks like
the jurors.
Who invented or developed the product? Who
tested it and certified its safety? Who worked in
the same plant and handled the same raw materials?
Don’t be afraid to let the jury see them. Their
stories can be much more compelling than the
testimony of paid expert witnesses.
16 Spray February 2018
Teach the jurors how appropriate scientific methods
can be used to answer the questions before them.
A lie gets halfway down the street before the
truth can even pull its boots on…