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Proving Medical Causation and Damages in a Toxic Tort Case
- Robert M. Fellheimer

INTRODUCTION: FORGING A PARTNERSHIP BETWEEN THE ENVIRONMENTAL PHYSICIAN, PATIENT, ATTORNEY, AND SCIENTIFIC EXPERTS

Environmental law is an exciting and frustrating field. For the attorney it provides an excellent opportunity to provide legal assistance on behalf of a client whose life has been severely compromised by an environmental exposure. The attorney can bring a measure of financial security and a sense of justice on behalf of a client whose life has otherwise been catastrophically altered by an environmental exposure.

The best results are obtained when there is a synergistic relationship between a highly motivated client, a sensitive and experienced environmental physician, a knowledgeable attorney and the assistance of scientific experts. In many of my cases there is a long and frustrating lapse of time before the client finds adequate medical attention and adequate legal representation. In many cases, the patient presents a laundry list of complaints to traditional physicians who are skeptical that they are related to an environmental exposure. Hence, the patient fails to be diagnosed with an environmental illness and hence not treated. When the patient is finally diagnosed as having a possible environmental illness, the physician has no treatment to offer the patient.

Frequently, the course of legal representation follows a similar course. If only a small percentage of physicians are qualified to recognize and treat environmental illness, the percentage of attorneys who can adequately represent environmentally ill patients is significantly smaller. The environmental physician can perform a great service to the patient by referring him to an attorney who specializes in this area. If the existing attorney is a qualified trial attorney and personal injury attorney but not experienced in the field of toxic tort litigation, efforts should be made to educate the attorney and the client on necessary requirements to meet the burden of proof in a toxic tort matter. The physician’s chances of having his testimony being admitted will be greatly enhanced if there is scientific basis to the exposure. The best combination of experts is as follows:

  1. ENVIRONMENTAL ENGINEER: Can testify to the amount of toxic chemicals in the environment to which the patient was exposed.
  2. INDUSTRIAL HYGIENIST: Can testify to the amount of chemical absorbed into the patients body by air, dermal, or oral exposure.
  3. TOXICOLOGIST: Can testify that the chemicals involved and the nature of the exposure are capable of producing the injuries documented by the patient.
  4. TREATING PHYSICIAN: Can integrate the findings of the above experts and base additional opinions based upon his treatment and diagnostic testing.

Issues of medical causation can be strengthened if they are supported by medical references and studies from respected medical journals. The tripod foundation of scientific experts, medical references and medical testimony can be a potent combination to prove causation.

LEGAL STANDARDS FOR MEDICAL AND SCIENTIFIC ADMISSIBILITY

Causation in most states is sustained by the Daubert standard. (Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 1993) In this case the Court sits as the gatekeeper to determine whether a scientific principle has been sufficiently proven to allow the scientific proposition to be heard by the jury. The factors that the Court considers are as follows:

  1. The scientific validity and reliability of the scientific proposition.
  2. Whether the scientific methodology as applied to this case is generally accepted.
  3. Acceptance of the scientific proposition by the medical community.
  4. Acceptance of the proposition by peer review literature.

While most lawyers and physicians believe that Daubert is a restrictive rule of evidence, I believe that it provides an opportunity for lawyers to obtain legal recognition of scientific principles. Again there should be a synergistic relationship between physicians and lawyers. Qualified lawyers can provide legal acceptance for scientific principles that are controversial in the medical community. Qualified physicians and scientists can provide legal ammunition for lawyers to propound medical propositions that are controversial in the legal arena. A well-prepared case provides an opportunity for attorneys to gain legal acceptance of scientific principles. Daubert is generally raised in toxic tort cases in three areas:

  1. The diagnostic tests utilized are not generally acceptable.
  2. The chemical involved in the case or the nature of the chemical exposure is not sufficient to cause the injuries that the plaintiff has suffered.
  3. The nature of the injury is not generally accepted, such as Multiple Chemical Sensitivity.

Frequently defense counsel will challenge the scientific validity of a diagnostic test. In cases involving a toxic encephalopathy, physicians in the Philadelphia area have offered the Quantitative MRI (QMRI) or the Quantitative PET Scan (QPET). These tests are offered at the University of Pennsylvania and a select group of major teaching institutions. This battery of tests is the most sensitive (and the most expensive) method of diagnosing a toxic encephalopathy.

The QMRI measures brain atrophy by comparing the volume reduction of lobes of the brain and the resulting increase of cerebral spinal fluid. The PET measures abnormalities of cerebral blood flow (CBF) and cerebral glucose metabolism (CMRgl). A low level of CBF indicates that the brain is receiving insufficient oxygen and nutrients. An elevation of CMRgl can result in increased toxins being produced. The combination of low CBF and elevated CMRgl results in uncoupling which can place the patient at risk for further brain atrophy. The test is powerful in establishing a diagnosis of toxic encephalopathy as well as providing a foundation for future atrophy that would entitle the plaintiff to compensation for future disability and medical expenses.

I am proud to announce that I was involved in the first case that established the scientific validity of the QMRI and the QPET in Pennsylvania. Although these tests are not in widespread medical use and are used primarily in studies, we offered ample evidence of the scientific foundation which established the reliability and validity of these tests. There is widespread acceptance of these tests in leading scientific journals and the results can be validated by peer review. This evidence was more than sufficient to win the day.

SCIENTIFIC FOUNDATION FOR MEDICAL OPINIONS

The defense invariably raises two defenses to a toxic exposure claim:

  1. The chemical involved in the exposure is incapable under any circumstances of causing the plaintiff’s injuries.
  2. The extent or nature of the exposure is insufficient to cause the plaintiff’s injuries.

Thus the defense will correctly contend that while cigarettes can cause cancer, smoking three cigarettes at age fifteen cannot cause cancer at age forty-five because the dose was too small. The defense expert will then go on to opine that because the chemical exposure could not cause the injury, the plaintiff’s injury is therefore:

  1. The result of another accident or chemical exposure.
  2. The plaintiff is malingering.
  3. The plaintiff is suffering from some psychiatric illness such as a phobia or depression.

It is then incumbent upon the plaintiff to establish that there is scientific literature that can establish that the chemical involved can cause the injuries that the plaintiff experiences. Although it is not always possible to create the nature of the exposure, the use of an environmental engineer, industrial hygienist and toxicologist can bolster the opinion of the treating physician. It is highly desirable to employ at least a toxicologist in every major case to bolster the opinion of the physician.

I was involved in a case in which the plaintiff sustained a toxic encephalopathy as the result of a one day exposure to hexane as well as other hydrocarbons. A prominent defense expert acknowledged that although hexane can cause neurological injury and a toxic encephalopathy, this can occur only after several weeks of exposure and usually after months or years. There was limited medical literature that dealt with this issue. We were able to prevail on the Daubert issue because we were able to show that:

  1. The plaintiff had a compromised nervous system as the result of a ten year exposure at a major petroleum company to various hydrocarbons including: hexane, benzene, toluene, and xylene.
  2. Plaintiff worked a very heavy schedule in the days before the exposure that resulted in various hydrocarbons not being eliminated from her body.
  3. On the night of the exposure she was exposed to very high levels of hexane as well as a multitude of other volatile organic compounds.

This exposure scenario was able to defeat the Daubert motion. In addition, we were able to produce some medical articles that corroborated the chronic effects of an acute exposure to hexane.

MEDICAL FOUNDATION FOR MEDICAL OPINIONS CONCERNING NEUROTOXIC, SYSTEMIC AND CHEMICAL SENSITIVITY INJURIES

Medical causation and overcoming a Daubert motion concerning a controversial injury such as chemical sensitivity can be enhanced by embracing a three-pronged medical approach to causation:

  1. Establishing by empirical data that the patient suffers from an established injury that can be caused by the chemical such as a toxic encephalopathy.
  2. Proving that systemic injuries exist that are most likely consistent with a toxic exposure.
  3. Chemical sensitivity becomes more credible when linked with established medical diagnoses and systemic injuries which are associated with the chemical.

It is helpful legally if the physician’s clinical impression of a toxic encephalopathy can be proven empirically by objective testing such as:

  1. Neuropsychological testing
  2. QMRI
  3. QPET or SPECT Scan
  4. Neuroelectrical testing.

The second method of establishing causation is by establishing systemic injuries that are most likely associated with a toxic exposure such as:

  1. Central nervous system
  2. Peripheral nervous system
  3. Immune/Autoimmune system
  4. Respiratory system
  5. Toxic Asthma
  6. Toxic Sinusitis
  7. Endocrine abnormalities
  8. Liver abnormalities
  9. GI abnormalities
  10. Cardiac abnormalities
  11. Allergies
  12. Dermal abnormalities.

Chemical Sensitivity becomes more acceptable legally when it is associated with the scientific evidence and medical evidence established above. It is important to be able to associate the chemical involved with chemical sensitivity. For example, I had a case involving dursban, an organophosphate pesticide. Numerous studies have associated it with chemical sensitivity. This was based on animal studies as well as epidemiological studies. An epidemiologist or statistician can establish that this percentage of chemical sensitivity claims arising from the use of dursban, but not from other similar pesticides, cannot be explained by chance. An important study published by the EPA linked dursban to chemical sensitivity.

Chemical sensitivity can be proven by three separate approaches:

  1. By history of the patient which associates it with a chemical known to cause chemical sensitivity. It exists therefore it is.
  2. By history and establishing objective evidence of poisoning by a chemical. It can be asserted that the tests are markers for poisoning by the chemical although they may not be specific to chemical sensitivity.
  3. By asserting that various objective tests are markers for chemical sensitivity.

Various tests that have been helpful in establishing chemical sensitivity are:

  1. Double blind booth testing.
  2. Immune or autoimmune testing.
  3. Findings of volatile organic compounds or the offending substance in the body.
  4. Liver/porhyria

Chemical sensitivity is generally accepted if the following conditions exist:

  1. The patient has been exposed to a substance that has been associated with chemical sensitivity.
  2. There are objective findings of other injuries or systemic injuries that are consistent with exposure to the offending substance.
  3. The patient is credible.

The establishing of objective injuries and the demonstrating that literature exists associating the chemical with chemical sensitivity is essential to the proof of a claim for chemical sensitivity.

DIAGNOSIS, PROGNOSIS AND FUTURE INJURIES INCLUDING FUTURE MEDICAL EXPENSES AND DISABILITY

A claim on behalf of your patient is often enhanced by proving special damages or out-of-pocket expenses. It is therefore important to establish that the condition is permanent and may be progressive. The QPET and QMRI are important tests because they not only can objectively demonstrate that the toxic brain injury is permanent but that it may be progressive. This may give rise to a significant claim for future medical expenses. If the physician does not know the precise costs of future medical expenses, he can work in cooperation with a nurse to establish a life care plan for anticipated or contingent future medical expenses. If the injury is likely to result in a permanent disability this should also be noted.

CONCLUSION

Toxic exposure claims provide an excellent opportunity for physicians and attorneys to cooperate for the benefit of the patient/client. The efforts of both groups working synergistically can result in a wider acceptance of environmental illness by the courts, the scientific community and the public at large. It can also provide a measure of compensation to a person who has been the victim of a toxic exposure and to help him or her attain a sense of justice. The physician can achieve a holistic sense of helping the patient legally as well as medically. Hopefully these claims will impose a financial burden on the parties dispensing these chemicals and result in them producing safer products which cause less harm to the public.

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