Case Management and Health Claims in Toxic Tort Litigation

Transcription

1 ALI-ABA Course of Study Environmental and Toxic Tort Litigation January 26-27, 2006 Scottsdale, Arizona Case Management and Health Claims in Toxic Tort Litigation By D. Alan Rudlin George P. Sibley, III Hunton & Williams LLP Richmond, Virginia

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3 CASE MANAGEMENT AND HEALTH CLAIMS IN TOXIC TORT LITIGATION D. Alan Rudlin George P. Sibley, III HUNTON & WILLIAMS LLP Richmond, Virginia ALI-ABA COURSE OF STUDY ENVIRONMENTAL AND TOXIC TORT MATTERS: UPDATES & TRENDS 2006 JANUARY 26-27, 2006 Scottsdale, Arizona

4 TABLE OF CONTENTS Page I. INTRODUCTION...1 II. PROCEDURAL AND CASE MANAGEMENT ISSUES...1 A. Procedural Devices for Structuring the Mass Tort Case Class Actions Joinder Consolidation and Multidistrict Litigation Miscellaneous Approaches of States Class Action Settlements...11 B. Use of Case Management Orders Generally Test Plaintiffs Bifurcation Trifurcation Illustrative Cases...19 C. Alternative Dispute Resolution...25 III. ENVIRONMENTAL REGULATORY ISSUES...27 A. Federal Environmental Statutes As Negligence Per Se...28 B. Federal Environmental Violations Not Negligence Per Se...29 C. Violations As Mere Evidence Of Liability...30 IV. MULTI-PARTY LITIGATION ISSUES...30 A. Collateral Estoppel...30 B. Cooperation Among Co-Defendants Joint Defense Privilege Joint Defense Agreements...37 C. Ethical Issues Aggregate Settlements Take-Out Agreements Discounting Fees...42 V. HEALTH CLAIMS: THEORIES OF RECOVERY AND DAMAGES...42 A. Fear of Future Illness...42 B. Increased Risk of Disease...50 C. Medical Monitoring The Existence of a Cause of Action Forms of Medical Monitoring Awards Medical Monitoring Settlements...62 D. Multiple Chemical Sensitivity Syndrome...65 E. Punitive Damages State Farm v. Campbell: Due Process Limits on Punitive Damages Campbell applied...69 F. Worker s Compensation Claims...72 VI. PRINCIPLES OF CAUSATION IN TOXIC TORT CASES...75 A. Concepts of Exposure and Dose Diverging Standards...75 i

5 2. The Use Of Circumstantial Evidence To Prove Causation Alternate Causes Government Standards As Proof Requirement...82 B. Proving Causation Through Expert Witnesses The Daubert Standard The Havner Standard Recent Cases Applying Daubert Differential Diagnosis under Daubert...93 VII. CONCLUSION...95 ii

6 I. INTRODUCTION 1 CASE MANAGEMENT AND HEALTH CLAIMS IN TOXIC TORT LITIGATION Toxic tort litigation encompasses a broad array of cases in which claims are asserted on account of exposure to some substance, often a chemical, man-made fiber, or other product, but occasionally radiation or even naturally occurring pathogens. The primary focus of this paper is not on the occasional, acute toxic exposure claim by one or two individuals. It is instead on the more typical toxic tort type of claim now being filed: multiple individuals alleging exposure on a chronic basis to low levels of a substance. These cases present extraordinary challenges to the courts, litigants, and their lawyers. 2 With this in mind, the discussion in this paper focuses on the trends in four areas of toxic tort litigation: (1) structuring the typical toxic tort case; (2) managing key multi-party issues; (3) prevailing liability and damage theories; and (4) understanding the causation conundrum. II. PROCEDURAL AND CASE MANAGEMENT ISSUES Adversaries involved in mass toxic tort litigation face common case management problems. Toxic tort cases often involve multiple parties and turn upon complex scientific and medical issues, which in turn can create a host of procedural and case management issues. A. Procedural Devices for Structuring the Mass Tort Case Meeting the procedural challenges inherent in complex toxic tort cases depends upon careful management of the discovery, trial, and settlement phases. Counsel and courts have at their disposal a variety of tools, including carefully structured case management orders, class actions, joinder, consolidation, bifurcation, trifurcation and the use of bellwether trials and test plaintiffs. These tools will be most effective if they can be formulated into a unified case management plan and presented to the court in the early stages of litigation for incorporation into a case management order. 1. Class Actions The Federal Rules of Civil Procedure and many state analogs allow for the adjudication of the claims of similarly-situated plaintiffs on a class-wide basis. In theory at least, these class actions allow for the efficient global resolution of substantially similar claims. 1 D. Alan Rudlin and George P. Sibley, III are members of the Mass Tort and Product Liability Practice Group at Hunton & Williams LLP in Richmond, Virginia.. 2 A study by the United States Department of Justice showed that plaintiffs counsel have found investing in toxic tort cases to have produced some of the richest returns among all types of civil litigation cases. See Civil Jury Cases and Verdicts in Large Counties (Civil Justice Survey of State Courts, 1992), Special Report, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics (July 1995, NCJ ). Corporate defendants often find that the liability exposure analysis fits the profile for bet the company type cases.