If you’re involved with a toxic tort or environmental contamination case with alleged exposures to chemical, biological or physical agents, an Environment Health & Safety (EHS) professional may be just the expert you need to provide winning testimony for your case.
If you’re involved with a toxic tort or environmental contamination case with alleged exposures to chemical, biological or physical agents, an Environment Health & Safety (EHS) professional may be just the expert you need to provide winning testimony for your case. For example, in a toxic tort case, plaintiff may allege that past exposure to a chemical or product has caused an adverse event, illness, well defined disease or syndrome. In an environmental case, alleged contamination of air, soil, sediment or water may pose a current or potential concern for future illness or disease among nearby residents.
We set forth below 10 tips for preparing your EHS expert in the context of a toxic tort or environmental case.
1. Identify Need for Additional Information:
Once you have provided your EHS professional with all of the information you have available to you, it is critical to determine whether he would like to see any additional information. Work with your expert to determine additional information that might help him better address the claim that the plaintiff was exposed to the contaminant.
2. Determine Adequacy of Available Information:
Regardless of whether your EHS professional feels he would like more information (more information is always better), does he feel that the available exposure data are adequate? The EHS professional will need to identify exposure gaps and use best available professional practices to estimate the exposures. It can be difficult to choose the appropriate EHS expert(s) and a scientific litigation consultant may need to assist (we will write more about this in a subsequent post).
For example, an industrial hygienist may be able to perform air dispersion modeling to better assess occupational or environmental exposure to a chemical, biological or physical agent. However, an air dispersion modeler may have stronger expertise particularly in environmental spills or releases and estimation of impact on air. A soil scientist’s skill is likely not adequate to address contamination concerns to groundwater and a hydrogeologist may be needed to predict chemical, biological or physical agent (most commonly ionizing radiation) plume movement and concentrations.
3. Link to Illness or Disease:
Once exposure to the contaminant has been established, the toxicologist is typically tasked with the question of evaluating whether this level of exposure can result in the alleged illness or disease. This assessment is often complicated by the presence of multiple contaminants, the nature of the alleged exposure (acute vs. chronic; episodic vs. continuous). In addition to using his general knowledge, the toxicologist should do an in depth literature review to develop an opinion about contaminant exposure levels and the likelihood that those exposure levels could result in illness or disease.
4. Strength of the Evidence:
Is there evidence indicating that the exposure levels could result in the indicated illness or disease? If so, what is the strength of that evidence? The strength of the evidence is often evaluated by the risk ratios reported in epidemiological studies. In general, risk ratios well in excess of 2.0 represent strong risks while risk ratios between 1.0 and 2.0 are generally considered to be weaker associations that could, in fact, be spurious (i.e., influenced by confounding or bias).
5. Consistency of the Evidence:
Make sure that your EHS expert is well versed in the totality of the data related to the exposure of interest and the adverse health outcome, including data that may refute the link. If there are data questioning a link between the exposure of interest and the adverse health effect, this should be highlighted and emphasized.
6. Alternate Cause Assessment:
Work with your EHS expert to develop an awareness of other contaminants that are capable of causing the same illness or disease that is at issue in the case? Is there any evidence that the plaintiff may have been exposed to sufficient levels of these other contaminant(s) to develop the indicated illness or disease? For example, if an industrial hygienist were involved in reviewing prior occupational exposure records, this will be useful information to share with the toxicologist.
7. Perform a Quantitative Risk Assessment:
After your EHS expert has performed a detailed review of the exposure information and its relation to the indicated illness or disease, a risk assessment may be warranted. A quantitative risk assessment will utilize established methods to determine whether the exposure meets or exceeds an established exposure level that may increase the plaintiff’s chance of developing the illness or disease. When relying on an EHS expert’s risk assessment, make sure that you are well aware of the methods he used to perform the risk assessment and that these methods are consistent with best practices.
8. Link Plaintiff-Specific Information:
Make sure that you link plaintiff-specific factors to your risk assessment. This will help to ensure that plaintiff counsel doesn’t invalidate your risk assessment by asserting that it doesn’t apply to the plaintiff. For example, if possible, attempt to determine the following type of information related specifically to the plaintiff: respiration rate, surface area exposed to contaminant, body mass index.
9. Communicate the Risk:
Once the risk assessment has been performed and you determine that it is helpful to your case, you will want to communicate that risk in a way that will be understandable to lay people (i.e., judges and juries). This will be both a defensible, technical description as well as involve the use of simple demonstrative exhibits that help to make the risk assessment understandable. What factors were used to determine levels of exposure to the plaintiff? Based on your quantitative risk assessment, what estimate would you provide regarding the potential of this exposure to result in the plaintiff’s illness or injury?
10. Wrap it Up:
After you have developed all of the elements listed above, you will want one of your EHS experts to function as a wrap-up expert. In this role, he will compile all of the testimony you have developed and come to an ultimate conclusion that is (hopefully) helpful to your case.
In our next post, we provide you with 5 types of EHS experts to consider for your next toxic tort or environmental case.
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