Litigation 101 (Toxic Torts)
May 3, 2004
After spending seven years helping to defend a huge groundwater contamination case in Southern California, lawyers at Holland & Knight have learned a few things about effective strategies and case-management techniques for both plaintiffs and defense counsel who handle such cases. "The size and complexity of the case created administrative challenges for all involved," says Kathleen Strickland, a Holland & Knight partner who was part of the defense team. Strickland passes along some strategies and techniques as part of a special report on toxic torts inside today's Recorder.
Lawyers at my firm have been immersed for the past seven years in a mammoth
toxic tort case involving groundwater contamination in Southern California that
has been reminiscent of the litigation that unfolded in “A Civil Action.”
The cases, which began with more than 1,000 plaintiffs, were filed by lawyers
at two very experienced and well-financed plaintiffs firms. They were later
consolidated into one case group and assigned to the Central Civil West division
of the Los Angeles Superior Court. As of mid-April, the case total has been
reduced from 1,000 to about 540.
Along the way, the case has been fiercely defended. Motions have been made
and granted for change of venue. Writs have been taken and accepted. There’s
been a trip to the California Supreme Court on issues of pre-emption and
regulatory jurisdiction. Judicial assignment challenges have been made and
granted, as have demurrers. Claims for both punitive and property damages have
been struck. Dismissals have been granted owing to the failure of plaintiffs to
answer pending discovery in the form of questionnaires.
Even with extremely experienced plaintiffs counsel, defense counsel and a
judge, the lesson learned after seven years is that the case is simply too
large. The size and complexity of the case created administrative challenges for
all involved. At the outset, more than 70 defendants were sued by more than
1,000 plaintiffs. Among the defendants were private industrial companies,
municipalities, and both regulated and non-regulated water purveyors.
In an attempt to minimize costs and share expenses, about two-thirds of the
industrial defendants organized into a Joint Defense Group. Even so, the sheer
size and scope of the case has caused all parties to feel at times as if they’ve
been trying to move an elephant down the football field. And, two years after
the Supreme Court’s remand in the case, we are still only in the first quarter
of the game.
From a plaintiff’s perspective, these kinds of cases are very expensive for
counsel to undertake. They are also difficult to prove. Before filing a toxic
tort case, make sure you can afford to take it because it will almost certainly
be a long road. Funding the litigation will usually necessitate opening lines of
credit. The burdensome expenses come from having to administer the case over the
long term and from having to retain multiple layers of experts.
Causation is key in these kinds of cases. Before you begin, make sure to have
the causation evidence locked in solid and be prepared to withstand a so-called
Bockrath challenge to your complaint. The defendants will insist that you not
only tell them what toxins caused which specific illness in your plaintiff, but
also that you show a causal nexus either in pleading per Bockrath or closer to
trial in a so-called Cottle hearing.
In order to prevail in this kind of litigation, plaintiffs must prove the
existence of a poisonous substance that was toxic when introduced into human
tissues. This is known as dose, which is the amount of the substance that
actually penetrated the plaintiff’s body by either inhalation, ingestion or
through dermal contact. Secondly, plaintiffs must prove that a specific toxin
belonged to a particular defendant and that it caused the injury alleged in the
complaint. Experts will be needed in such areas as water distribution - both
above and below ground - toxicology, epidemiology and industrial hygiene, along
with all attendant medical specialties and subspecialties. Plaintiffs’ counsel
must be sure they can survive a so-called Daubert challenge if they hope to
pursue their case.
For defense counsel, organization and cooperation are key. Joint defense
groups can be extremely beneficial, and counsel are advised to become active
participants in the tasks performed by that group. The court will ordinarily
encourage defendants to join such a group because it is the only way a judge can
effectively manage so many defendants. There are also cost savings for
defendants who participate in a joint defense group due to shared expenses of
experts and the division of labor that can reduce redundancy. Non-working
members of the group can be a problem for defendants, but those lawyers will be
caught unprepared at trial if others doing the bulk of the work settle out. A
trial lawyer should be placed at the helm of a joint defense group largely
because a mass toxic tort case is much different than, say, an EPA
administrative case. The case needs to be prepared for trial under the
leadership of someone who has been there before.
Indeed, group alliances formed in an EPA proceeding can prove disruptive to
the functioning of the joint defense group, bogging down the ability of the
group to make decisions and move forward. If possible, it is best not to have
any pending EPA proceedings while the toxic tort case is ongoing. It is also
best to clear all coverage issue without filing declaratory relief actions
because such actions may produce evidence damaging to the toxic tort case.
Judges, of course, have their own interests and perspectives when it comes to
toxics-related tort litigation. The judge handling our case has often remarked
that it is the largest, most complex toxic tort case he has presided over - and
this from a jurist with a reputation for effectively handling large, complex
matters. The court conducted monthly status conferences to avoid motion
practice, and any issues not resolved during those status conferences, or meet
and confer sessions between liaison counsel among the parties, are resolved by
decisions rendered on the record and posted thereafter in minute orders on the
court-ordered Web site, Verilaw. Liaison counsel was appointed by both sides as
spokespersons for the group. Our firm served as one of three liaison counsel for
the industrial defendants.
As part of the court’s effort to effectively manage the case, a master
complaint was filed and master answers were submitted in the wake of scheduled
demurrer hearings. Joint briefs were submitted by all parties. Discovery is
controlled by the court. The court permitted an initial round of discovery by
plaintiffs that was limited to obtaining documents from each defendant as well
as inquiring about insurance information, the nature of each defendants’
business and the history of chemical use at the site. Defendants were permitted
to submit a questionnaire to all plaintiffs. The court gave plaintiffs a year to
answer the questionnaires, dismissing those who, after an extension or two,
failed to answer. The court randomly selected bellwether plaintiffs from each
case group, along with preference plaintiffs, to continue into the next round of
discovery prior to selection of trial groups. Motion practice and expert
depositions will follow, culminating in a Daubert hearing.
Lessons learned:
1. In this case, a stay had the effect of running the statute of limitations
for plaintiffs, thereby limiting the ability of other lawsuits to be filed in
the intervening seven years. This represented the elimination of a serious
threat to defendants who otherwise envisioned serial litigation on behalf of a
pool of potential plaintiffs numbering over 1 million. Our firm led this effort
with the taking of the first writ, which culminated in the California Supreme
Court’s opinion in Hartwell v. Superior Court (2002) 27 Cal. 4th 256.
2. Taking the case to the California Public Utilities Commission was a
brilliant idea of the water purveyor defendants. Once the PUC, which regulates
certain of the water purveyor defendants, opened an investigation into the
quality of the water they provide, those same defendants contested the
jurisdiction of the judicial system on the grounds that only the PUC had
jurisdiction to render decisions over them. This jurisdictional issue was the
basis for our writ requesting a stay of all court proceedings while the PUC
investigation into the quality of the water served by the water purveyor
defendants was pending.
3. The findings and conclusions of the PUC investigation into water quality
have and will continue to impact the toxic tort case for both the water purveyor
and industrial defendants.
4. Time, meanwhile, has worked in favor of the defendants in this case.
Although the case began seven years ago, discovery is just now beginning against
the bellwether and preference plaintiffs. Expert discovery has yet to begin. The
first round of good faith settlement motions is set for this month. If the court
grants these good faith settlement motions, this will represent the first monies
of which we are aware that plaintiffs will have collected in these cases.
It is a testament to both the size and complexity of these cases that after
seven years, the cases are just beginning discovery - they are just too large.
If you are plaintiffs’ counsel, you should either file smaller cases or be
prepared to fund the litigation for the long haul through at least the
causation/Daubert hearing. If you are defense counsel, you will need to organize
the defense group in order to efficiently and effectively move the case forward
toward those Bockrath, Cottle and Daubert hearings. If you are the court, you
will need patience, experience, skill and initiative to manage the case and all
these lawyers in your courtroom. n
This article is reprinted with permission from the May 3, 2004 issue of
The Recorder. (c) 2004 ALM Properties Inc Further duplication without permission
is prohibited. All rights reserved.