Toxic Tort Claims Review Strategy

Thursday, January 1, 2004 - 01:00

Ronald E. Gots, MD, PhD
International Center for Toxicology and Medicine

Using the following steps, corporate counsel may effectively and efficiently evaluate and manage medical and toxicological-based health claims arising from toxicological exposures. This approach permits counsel to minimize overuse and misuse of expert and outside counsel services.

Money is wasted in case preparation when work is performed that does not elicit information designed to move the case to conclusion. The overwhelming cause of this inefficiency is random, unfocused activity. Excessive costs often are caused by: failure to plan, duplication of effort, separation of the medical from the environmental, unfocused discovery, reactive response (i.e., with new experts) to plaintiff counsel's every action, and premature selection of independent medical examiners.

It may seem counterintuitive, but the best way to minimize waste is to begin with the end in mind. Asking "What are the likely defenses in a case like this?" allows the reviewer to identify goals that lead to useful actions and work products. Conversely, failing to consider review products leads reviewers and attorneys to grope blindly through masses of records and volumes of discovery, and only later try to put it together. This leads to wasted effort and, not infrequently, to a review that is poorly targeted and omits key elements.

Identifying goals means determining likely elements to emphasize in defense of the claim. These elements vary from case to case, but they are finite in number and rather constant for similar kinds of claims. For example: cancer claims have similar elements, as do sick building claims, multiple chemical sensitivity claims, lead poisoning claims, solvent neurotoxicity claims, and so on. Each type of claim has its own set of common and relatively constant elements.

With this understanding, one can begin to develop goals, as the first step in review strategy. What goals to apply vary from case to case, but, in general, they can be delineated before work begins. Goal modification may occur later, but only in response to specific findings or changes in plaintiff's strategy, and for explicitly determined reasons. Once the strategy has been determined, the reviewer knows what needs to be accomplished. He or she is also able to communicate effectively with defense counsel, corporate counsel or claims professionals so that all participants are working towards common and mutually understood goals. Once these goals have been identified, certain standard approaches may be used to implement them. These represent the tactical activities which serve the strategic plan.

Possible review activities include determining if: the patient has no defined illness; the patient's illness has alternate causes; the chemical(s) in the claim do not cause the claimed reaction; the dosage is too low; the risk is minimal or nonexistent (risk assessment); the condition(s) are preexisting; the temporal relationship is wrong; the clinical pattern is wrong; the product is not inherently harmful; the product was used incorrectly; the claimant's experts rely on junk science, or the group is not an epidemiological cohort. Rarely are all of these assessments necessary. Other types of data may be indicated in selected cases.

Developing defense strategies by beginning with the end in mind prepares defense counsel to combat opposing experts and to develop affirmative defenses. Plaintiff experts in toxic tort claims commonly fall into categories of treating physicians, specialty experts using standard approaches in casual assessment, and junk science experts.

Understanding what categories experts fulfill enables scientific consultants to focus defense counsel on the best counter-strategies. Such strategies may include an assessment of what experts will use to "prove" their allegations; targeted depositions that uncover the weaknesses in the expert's positions or expertise: motions to exclude testimony using Daubert or Daubert-like arguments; and impeachment using prior testimony.

When defending toxic tort claims, minimizing waste is an achievable goal, if counsel's approach is strategic and thoughtful. Beginning at the end, while focusing on likely defenses, is the key first step. This is best followed by a careful assessment of experts for the right skill set and relevant experience to review the technical and medical documents and advise counsel, so that defenses will be well-supported through discovery and record review. Such experts will be in the position to perform the most focused review, and will be able to provide support for arguments that counter those of opposing experts. These two steps together greatly increase the probability of dismissal of the claim, or quicker settlement of the case.

Ronald E. Gots, M.D., Ph.D., is CEO of the International Center for Toxicology and Medicine (ICTM). Questions about this article can be addressed to him at (301) 519-0300 or info@ictm.com.