Why poisonous torts are laborious to litigate and win

Still from Erin Brockovich

Photo courtesy moviestillsdb.com

In films like Erin Brockovich and A Civil Action, viewers spend about two hours watching lawyers investigate a serious environmental issue and then sweeping a jury off their feet with the power of their evidence.

In reality, environmental forces say it could take years depending on the nature of the case. An important reason for this is the Daubert Standard, which regulates whether the opinion of an expert is admissible in court.

Expert witnesses are critical to proving a case of toxic tort – which often involves substantial scientific evidence – but the Daubert Standard gives the other side the ability to discredit and expel those witnesses.

Allan Kanner

Photo courtesy of Kanner & Whiteley.

Allan Kanner, a poisonous tort attorney for the plaintiff and founder of Kanner & Whiteley in New Orleans, says many of the defendants practice “carpet bombing with Daubert.”

“Now if you have a case with 16 experts, you see 16 Daubert challenges,” says Kanner of the ABA litigation department and the environment, energy and resources department.

At a Daubert hearing for each of these witnesses, this can mean a lot of hearings – and therefore a lot of extra time and money. This can make toxic criminal offenses difficult.

“I believe these types of cases will be won or lost in the Daubert phase,” said James Ray, environmental attorney and partner at Robinson & Cole in his Hartford, Connecticut office and former co-chair of the Litigation Committee Environmental and energy disputes of the section.


The cause can also prolong toxic crime cases: this shows that the injury was caused by the substance in question.

For example, in a case where the plaintiff argues that chemical exposure caused a particular cancer, Ray says you would need to investigate all of the factors that could cause that cancer, including each plaintiff’s genetics, lifestyle, and other relevant factors. This is in addition to checking that the chemical is causing the cancer in the amount that the plaintiff was exposed to.

From November ABA Journal: Destroyed by Office Chemicals, Attorney Helps Others fight poisonous species.

James Ray

Photo courtesy Robinson & Cole.

Kanner says plaintiffs could also do the same by looking for a “smoking gun” that would show the defendant that the substance would make people sick. All of this often takes years of discovery.

Kanner has been sought advice from attorneys who have been five or six years on a poisonous tort case and are far from finished.

For lawyers working in an emergency, as many personal injury lawyers do, this is a big investment. But because toxic crime cases, especially class actions, can generate very high judgments and settlements, there are many incentives to move on.

“They see it as a major loss event,” says Kanner. “But when all other things are the same compared to other areas of litigation, poisonous species cost more and last longer.”

The jury is another complication. Both sides want people to sympathize with them, but Ray says defendants for toxic tort also need jurors willing and able to consider complex scientific evidence.

However, Kanner warns that it is easy to get so involved in the scientific side of things that you can lose the jury.

“You have to take care of it [the science], “he says.” But at the end of the day you have to try … a case that jurors can leave behind. “


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