Michael D. Shaw, Vice President, Interscan Corporation, Chatsworth,CA

How big of an issue is this? Just to mention a single case, IBM and eight other companies have been hit with a $3 billion lawsuit by employees claiming that they were exposed to dangerous levels of cancer-causing chemicals at IBM’s East Fishkill, New York plant. More on that later.

Few experts dispute that toxic torts represent one of the new frontiers in litigation. In fact, the preceding sentence comes from a recently published 702-page book entitled Toxic Tort and Hazardous Substance Litigation.

Many law firms are on the Web touting their experience in toxic torts. These lawyers don’t limit their suits to major companies. Smaller businesses are just as vulnerable. All it takes is an employee or former employee willing to come forward with a complaint.

The ultimate toxic tort site has got to be The Alexander Law Firm at http://www.alexanderlaw.com. An astounding amount of information awaits the Web surfer visiting Alexander’s home page. This Web site is truly a prodigious achievement and rivals that of any large corporate site that I have ever seen. One can only conclude that a major Web presence–not cheap–pays off big for the Alexander Law Firm. Here is but a small sampling of the information available.

You can browse through the Consumer Law Page, the section on Corporate Rip Offs, Cancer in the Garden, and loads of other hot links. There is a long list of their lawsuit victories and hundreds of “resource” links to other Web sites. Don’t miss the biographical data on Richard Alexander, Esq., founder of the firm.

You’ll no doubt be enthralled by his article defending the legal profession, entitled “A Special Message to Lawyers Visiting this Site: A Rising Tide Raises All Ships–Join Me on the Web.”

Of special interest is “Workers Injured By Toxics.” This section has seventeen links that cover such topics as “Corporate Manipulation of Scientific Evidence Linking Chemical Exposures to Human Disease,” “The Cancer War Needs An Informed Public,” and one that could possibly help defendants–“Proving Toxic Torts: A Primer On Pharmacokinetics.”

In this last article, Alexander tells you how it’s done. “Understanding the terminology of pharmacokinetics is helpful in proving and defending a toxic tort case.” The field of pharmacokinetics studies movements of drugs (or more generally, chemicals) within biological systems. It considers the effects of uptake, distribution, binding, elimination, and biotransformation. You will learn that “Pharmacokinetic data on the rate of elimination, coupled with accurate analytical measurements and knowledge of the time of exposure, allows the calculation of the dose actually received by an exposed victim.”

Hold that thought, since it is the key to a company’s defense. In just a moment, we’ll discuss how you can keep analytical measurements and time of exposure data easily.

But for now, take home this lesson: using these Web sites and dozens of others, people with real or imagined injuries–and their attorneys–are using cyberspace to help redistribute American corporate wealth.

A case in point

Let’s take a closer look at the IBM lawsuit while appreciating that you don’t have to be a giant to get sued. The March, 1996, action was brought on behalf of seven former IBM employees or their family members who developed cancer. At first, IBM was not named as a defendant because New York state law prohibits employees from suing their employer in a civil suit as a result of worker illness or injury. The original suit named four companies that supplied to the East Fishkill, New York, facility chemicals used in making semiconductor chips.

This action is the first suit of its kind to link cancer to working at a semiconductor plant. The plaintiff’s attorney, William L. DeProspo, said that an internal memo from IBM shows that the company knew in March, 1993, that at least one of the chemicals used in chip production, Photoresist 820, caused “health hazards.”

One woman died of colon cancer at age 24. Several others have had cancerous tumors removed, the suit claims. Bear in mind, though, that so-called cancer clusters occur all the time. Dr. Robert Miller, scientist emeritus at the National Cancer Institute, says that “In the U.S., there are thousands and thousands of clusters by chance. If you could ask a room full of people, you would find at least one in four have cancer in their family. It affects about 25 percent of the population.”

Naturally, cancer victims are looking for answers. “They begin to wonder if it’s due to the environment. They form a group and do their own investigation, putting pins in a map. You will never convince those people it is coincidental,” said Miller.

In August, 1996, an amended complaint was filed naming four additional chemical companies and IBM itself. The amended complaint added 85 people to the list of plaintiffs. The new group of plaintiffs includes children and contractors, both of whom are exempt from the state law preventing action against IBM. Several of the new plaintiffs are women who claimed to be exposed while pregnant and gave birth to babies with mental and physical disabilities as a result.

A local newspaper, the Poughkeepsie Journal, ran a two-month investigation in June of 1996 that revealed that although workers used dozens of dangerous chemicals to make semiconductor chips, little is known about the health risks. There is no research that shows what happens when the various chemicals are mixed, the investigation found. It is unclear whether IBM kept good records of employee exposure to help buttress their case. Certainly, if exposure levels were kept low and were documented, the plaintiffs would have a much harder time proving cause and effect.

As matters currently stand, no early verdict is expected in this case. If you want more bad news, consider this: the standard of proof–for the plaintiff–has been lowered. In the supposedly definitive case of Frye v. United States (293 F.1013, 1014 [DC Cir. 1923]) any issue of causation must be demonstrated to be “generally accepted” within the scientific community. However, in January, 1997, in a pesticide exposure workers compensation case decision, the Nebraska Court of Appeals rejected the Frye test for admissibility of scientific evidence.

What is behind the rejection?

Plaintiff Mary Sheridan entered the bar in which she worked at noon on September 19, 1993, and cleaned it for several hours. Earlier that day, an exterminator sprayed the area with cockroach pesticide. After working, Sheridan experienced headaches, burning eyes and throat, ringing ears, body aches, and nausea. The following day she experienced muscle paralysis and soreness, blurred vision, and seizures.

Since that time, Sheridan alleged that she has experienced problems with her memory, vision, patience, and temper that prevent her from working. Her doctor, Carol Angle, attested, with a reasonable degree of medical certainty, that Sheridan suffered from organic brain damage attributable to toxic encephalopathy (a brain disorder) caused by acute poisoning of esfenvalerate and other pyrethrins (natural products used as insecticides), their synergists, and petroleum distillates.

Expert defense evidence was presented, but to no avail. Based on the testimony of her doctor, and contrary to the “general acceptance” test for admissibility of novel scientific evidence set forth in Frye, Sheridan’s workers’ compensation claim for total disability was upheld.

This decision should be truly frightening to most corporate executives. It is almost inconceivable that a worker could be exposed on a one-shot basis to such a massive toxic load that could cause permanent disability and then not realize this during the exposure. Why didn’t she leave the facility if the concentrations were so high? Was she incapacitated? Did she have existing medical problems? Did she simply want to malinger? What about the notion of self-rescue?

None of this will ever be known because she was able to get a sympathetic doctor to come up with the diagnosis that her conditions were caused by exposure to the very pesticides employed on that fateful day. That’s all it took. If the Frye test for admissibility is gone, can the introduction of voodoo evidence be far behind?

If either the pest control operator or pesticide manufacturer had some background data on typical applications of the products, this questionable judgment might have been averted. Wouldn’t it have been interesting to examine morbidity and mortality data on the workers who spray the chemicals day after day?

The plaintiff’s lawyers have other tools at their disposal. Mealey’s Litigation Reports cover the area of emerging toxic torts along with several other hot fields

If reading the reports gets too boring, not to worry. Mealey’s also hosted a “New Exposures” conference at the Ritz-Carlton Hotel, Amelia Island, Florida. This conference covered such topics as the admissibility of scientific evidence, “pre-emerging” toxic torts such as fiberglass, radon, solvents, and more; multiple chemical sensitivity; indoor air quality; medical monitoring; insurance coverage issues; latex sensitization; and ethical issues faced by lawyers specializing in this area.

An add-on session examined what an attorney needs to know to evaluate an expert; how to keep the opposing party from getting its evidence submitted; and what research one needs to perform to qualify the expert.

Finally, don’t forget the Toxboard. The Toxboard is the toxic tort litigator’s news forum. On any given day, you can find a number of clever postings. Richard Alexander appears here, “…interested in meeting with plaintiff’s lawyers…” Another item seems to suggest that isocyanates were developed by the Nazis.

There is also a posting asking for information relating to the ability of the antifungal drug Fulvicin® to cause kidney disease. I guess if I wanted to help, I could refer the questioner to the Physician’s Desk Reference or the package insert that comes with Fulvicin®. Nephrosis (kidney disease) is prominently mentioned as a possible adverse reaction. The Fulvicin® question was posted on September 11, 1996, and, as of this writing, no reply has come in. Perhaps checking the obvious reference sources is too daunting a task. Maybe there is hope, after all!!

If you want more bad news, consider this: the standard of proof–for the plaintiff–has been lowered.

Mix and match

Multiple chemical sensitivity is also mentioned. This is real cutting-edge plaintiff’s attorney stuff. Multiple chemical sensitivity is a condition in which the victim is thought to be sensitive or allergic to tens, or even hundreds, of foods, chemicals, or both. The existence of this disorder has been dismissed by the American Academy of Allergy and Immunology, the American College of Physicians, the American Medical Association, and the American Council on Science and Health. Even within the new field of Environmental Medicine, there are those who do not accept multiple chemical sensitivity as a valid diagnosis.

Dr. David Parkinson, of the State University of New York at Stony Brook, has seen many people who have been diagnosed as suffering from multiple chemical sensitivity. He tells them that the condition doesn’t exist. Some suffer from a known allergic substance and can be treated for that single allergen. “Then there are the people in whom you find no physical problems. I suspect that most of them have histories of psychological problems” says Parkinson. “There is no science to this,” he said of multiple chemical sensitivity syndrome. “It drives me insane.” Any bets on multiple chemical sensitivity disorder lawsuits coming up in the near future?

How can industry protect itself?

The answer is to monitor employee exposure to toxic and hazardous materials and to keep good records. If these records show low exposure data, so much the better. If it shows high exposure, then do something about it immediately. Despite the Sheridan case, keeping good records shifts a tremendous burden of proof to the plaintiff. Consider the alternative–lack of data is sometimes sufficient for the defendant to lose the lawsuit.

Ironically, although industry has been monitoring toxic substances for many years, few companies use appropriate data acquisition techniques to keep records, even now. This is simply inexcusable. The stakes are too great and the right hardware is readily available!!

Many companies never made the transition from short-term, intermittent “portable” monitoring to full-time continuous monitoring. The short-term surveys tell you if you have a problem. If a problem exists, there’s no substitute for continuous monitoring. Given continuous monitoring, it is imperative to archive the data, not just set off alarms. How else can you document long-term employee exposure?

Most data acquisition packages accept input from any sensor, display current values on the computer screen, and archive the results. The better data acquisition systems offer real-time and historical trending (magnitude vs. time graphic displays) and automatic reporting. Automatic reporting is highly recommended because it eliminates the need to upload the archived data to a spreadsheet program for report generation. Ideally, the software manufacturer pre-formats the automatic reports you require.

Use emerging technologies to solve monitoring problems. Most of the leading monitor manufacturers offer demo software. In some cases, you can download it from their Web site. Try before you buy. Whatever you do, protect your employees and your company from the toxic tort attorneys.

Article by Michael D. Shaw for Plant Services on the Web, April 1997