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By: Brian D. Drazin
Every successful lawyer will instinctively select cases where liability can be established and where damages are substantial enough to justify the investment of his or her time and financial resources. Because class action litigation or mass tort actions are likely to require an exponential commitment involving both personal time, as well as judicial resources, careful screening takes on an even greater importance than the traditional selection process used for individual cases. The allure of winning a trial or settling a case on behalf of multiple clients is no doubt quite appealing. Obviously, the economic incentive can be substantial, and the personal satisfaction of championing the cause of a large group of people can be even more rewarding. If the case takes on a multi-district or national profile, the opportunity to be part of a common cause that benefits the interests of consumers and advances the goals of public safety no doubt provides additional incentive. Nevertheless, this attraction should never be allowed to cloud the judgment of a trial lawyer whose first commitment must remain to advance meritorious cases where there are legitimate proofs and reasonable prospects of success. The goal can be met only if the screening process is carefully and thoughtfully executed.
Assuming liability is clear, initial evaluation involves at least three main considerations. First, can a causal connection be established with existing medical and scientific proofs? Second, who can be included in the population of common claimants? Third, whether responsible defendants can be identified. Although these issues may seem simplistic, it is essential to appreciate their complexity. The availability of medical and scientific proofs will obviously govern the ability to establish a causal connection. Analysis of causation, therefore, should begin with a thorough review of the scientific and medical literature and analysis by qualified experts. Physicians, toxicologists, pharmacologists, epidemiologists, pathologists and industrial hygienists are among the experts traditionally consulted. Notwithstanding suspicious circumstances suggesting the existence of a causal relationship, the reality remains that medical science has simply not caught up in all cases with the needs of the tort system. Thus, there may be legitimate claims that unfortunately remain, for the time being, “immature”. The search necessarily must focus upon selecting cases which can be successfully proved.
Physicians traditionally formulate the initial diagnosis and may, in some instances, have reliable opinions regarding the cause of an adverse reaction, symptom(s) or disease. Where complex issues are involved, their opinions should be scrutinized against appropriate scientific literature to avoid the chance that well-intentioned but nevertheless speculative or “net” opinions may influence the decision to pursue a claim. In some cases, analysis of causation may require an appropriate workup with experts specializing in occupational and environmental medicine. These physicians are sometimes better qualified to establish a more precise diagnosis and draw conclusions regarding causation based upon (a) their familiarity with the manifestations of disease seen in the context of acute or chronic exposure or (b) their specialized focus on investigations into a patient’s history and an appreciation of established associations between specific diseases and exposure to harmful substances. Sometimes the opportunity to see a high incidence of similar diseases or symptoms among concentrations of patients who share a common historic denominator such that coincidence can be ruled out allows these experts to discover causal relationships not previously recognized. Once these “clusters” of statistically significant manifestations become apparent, medical detectives can often draw scientifically reliable conclusions based upon epidemiology. Although epidemiologists can play a convincing role by demonstrating unusually high rates of cancer or other diseases in the population of Plaintiffs as compared to the general population, traditional medical and scientific proofs remain an essential ingredient in the proofs used to establish a prima facie case with regard to causation. See Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991); Landrigan v. Celotex Corp., 127 N.J. 404 (1992).
Regardless of their specialization, experts will traditionally focus upon dose and duration as well as response in order to reach scientifically supportable conclusions. The attorney must, therefore, first determine if there is a viable claim based upon analysis of causation before focusing upon who should be included as a Plaintiff. There are some substances for which no level of human exposure is “acceptable.” In these instances, any exposure no matter how slight will provide the basis to draw a causal connection. Assuming liability and damages can be established, all exposed parties should be considered and, in all likelihood, included as Plaintiffs. More often than not, however, there will be issues of safe versus unsafe levels of exposure. Thus, exposure data is usually an essential ingredient in determining whether a potential client has been exposed beyond tolerable limits known as “thresholds.” These human tolerance limits may be surpassed due to unacceptable concentrations that are often measured in terms of parts per million or even parts per billion. Even relatively low levels of contamination may be unacceptable due to the duration of exposure or the toxicity of a substance. Clearly, higher concentrations, i.e., dose, and longer time periods, i.e., duration, of exposure will more readily combine to enable the experts to establish or reasonably conclude the probability of a causal connection to known carcinogens or toxins.
Response, however, is also a key factor and cannot be overlooked simply because there is adequate proof of dose and/or duration. The nature of the response and the timing must correlate with the existing literature. Simply put, the manifestation of disease or symptoms associated with a toxic substance must occur in the appropriate temporal sequence. Otherwise, despite exposure from a particular event or series of events one cannot draw a connection to the specific defendant or defendants identified with the occurrence(s). The point is illustrated in the case of asbestos exposure. Current scientific literature acknowledges a specific latency period between exposure and the manifestation of the disease(s) associated with asbestos. Where a client develops the disease too soon after a particular exposure, the experts will be likely to advise an investigation into more remote events occurring at a point in time that correlates with the current manifestation. Likewise, there are bound to be examples where the disease or symptoms associated with certain types of substances first present beyond the time period anticipated for a response from exposure to allow a causal connection to be drawn. Traditional considerations of cause and effect are, thus, dependent upon the symbiosis of dose, duration and response.
Important sources of available exposure data can spare significant time and investigation expenses. An abundant source of information is often available through the Environmental Protection Agency (EPA) or state departments of environmental protection such as the New Jersey Department of Environmental Protection (NJDEP) that often monitors landfills, industry and other sources of contamination affecting air or water supplies. These agencies are often involved in response to certain emergencies and may gather critically important data from which exposure can be extrapolated. Monitoring data from Superfund sites provides ongoing information and detailed evidence of contamination leaching into groundwater or, in some cases, polluting the surrounding atmosphere. Sometimes municipal and/or county health departments or even environmental prosecutors have performed investigations that can provide essential data. Following exposure in the workplace, especially when associated with an industrial accident, OSHA inspections or investigations may provide key evidence.
Where this information has not already been generated, careful consideration must be given to the viability of gathering this data and the expense involved. Significant obstacles may preclude accurate assessment of exposure data. In the case of air or water, the offending source of the pollution may already have been reduced or even eliminated, making it difficult or even impossible to prove what level of contamination previously existed.
Retrospective analysis may be a viable option if sufficient information is available to allow reconstruction of the data. For example, if contaminated water is in issue, geological engineers known as hydrologists, specializing in water tables and the flow of water within aquifers, may be able to accurately gauge the extent to which a water supply was contaminated at any given point in time. Even if current testing of a Plaintiff’s drinking water is negative or demonstrates low levels of pollution, these experts may recreate data that indicates there were serious problems in the past. Armed with an understanding of water flow within the aquifer, these scientists can project the spread of contaminants from their origin to off-site locations. By measuring concentrations of the chemicals currently found downstream these experts may provide accurate models demonstrating not only how and where but when and to what degree the plume of contamination impacted upon the water supply drawn from private wells or public supplies in the path of the plume. This information will not only define who was exposed, it will become the foundation for classic dose and duration analysis
Air pollution can present even greater challenges since oftentimes reliable exposure data is not contemporaneously gathered. This is especially true where a sudden, unexpected release occurs and the contamination of the atmosphere is transient or where the pollution has either been abated or otherwise eliminated by the time an investigation can be launched. It may, however, still be possible to calculate likely scenarios of exposure. If the quantity of chemicals released into the environment can be determined and the timing of the event from start to finish is known, experts can use documented properties of the chemicals such as vaporization pressure combined with existing climatological data such as temperature, wind speed and direction and other contemporaneous atmospheric conditions to make reasonable predictions. Computer models can provide further insight into exposure following the release of toxic chemicals and/or noxious gases into the environment. The extent of exposure endured by people who were downwind and who were within a certain radius of the source can thus be considered retrospectively.
Of course, in today’s industrial age, careful investigation into competing sources of water and/or air pollution must be undertaken to avoid erroneous assumptions and faulty analysis. Sometimes, the trail is simply too attenuated to prove a claim against a particular Defendant or group of Defendants. In addition, prior, subsequent or even intervening exposure from multiple sources must be carefully considered when selecting the appropriate Plaintiff(s). To the extent possible, a detailed family history should also be considered to rule out competing influences, which may impact upon the causation analysis.
When a specific causal relationship has been established but cannot be linked to current manifestations of symptoms or disease, consideration should still be given to the recognized right to recover damages for medical monitoring if the scientific literature supports conclusions that clients have been placed at an increased risk. The landmark decision in Ayers v. Jackson Twp., 106 N.J. 557 (1987) affords the right to recover the costs of future medical surveillance, i.e., periodic medical examinations, “notwithstanding the fact that the extent of Plaintiffs’ impaired health [was] unquantified.” Id. at 606. Nevertheless, the “proofs [must] demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease and the value of early diagnosis.” Id. at 606. This cause of action is not easily invoked. It has been limited to persons who have been directly exposed to hazardous substances, and only where exposure causes a distinctly increased risk of future injury that would require a course of medical monitoring independent of any other that a Plaintiff would otherwise undergo. Theer v.Philip Carey Co., 33 N.J. 610, 627 (1993). While it may not be practical from an economic standpoint to represent an individual client if medical monitoring is the only viable recovery, there may well be ample incentive where the recovery for medical monitoring is multiplied by a sufficiently large group. Where it is anticipated that clients may someday wish to advance claims for future manifestation of injury or other claims where the scientific proofs are not yet ripe, careful attention must be paid to formally preserve these rights by making appropriate motions to the court. See Ayers, Id.
Claims for loss of quality of life may also give rise to considerable damages and may well tip the scales making pursuit of a claim economically viable. Ayers, Id. In Ayers, Plaintiffs were unable to drink from or bathe in their visibly tainted household water supply and were awarded damages for these vividly demonstrable losses. Noxious odors from landfills or compost piles may similarly impact upon use and enjoyment of real property thereby causing hedonic damages. Adverse impact upon value and marketability of real estate may also give rise to considerable damages. Thus, creative theories of recovery may combine to make pursuit of claims economically viable even when there has not yet been a demonstrable manifestation of injuries. Obviously, medical monitoring as well as the above examples of damages may provide appropriate and separate avenues of recovery and should not be overlooked even where direct proof of causation and specific injuries can also be established.
In certain cases, media attention and news headlines focus attention on legitimate cases and can identify not only appropriate claims and claimants but the responsible defendants as well. Actions by federal agencies, such as the Food and Drug Administration warning and ban on the use of Fen-Phen diet drugs, as well as voluntary recalls of dangerous products by manufacturers themselves, may generate seemingly clear-cut cases. However, the screening process must still be cautiously performed. Not every accident nor every symptom or condition presented by prospective clients who fall within a group who used a product or who were exposed to a substance will meet the causation criteria. Careful analysis of the medical or scientific literature and consultation with qualified experts should remain the rule. Just as every rollover of an SUV equipped with Firestone tires will not necessarily be causally related from a liability standpoint to the currently identified engineering or production defect, every exposure to toxic chemicals or dangerous drugs will not necessarily produce related injury or damages. Selection of only those claims where recognized consequential damages are demonstrable is essential if the resources, time and energy necessary to advance legitimate claims are to be preserved. Likewise, the magnitude of injury must be taken into consideration even where there is a clear association between use or exposure and damages. For example, not every client who used Fen-Phen was injured to the same extent. Patients with mild heart valve defects faced different considerations than those with severe or moderate problems. Although all clients had the option to opt out of the class settlement and preserve their right to a separate trial, it was not always economically viable for claimants to do so if their damages were limited. Similarly, in other mass tort settings the damages associated with a particular Plaintiff’s case are sometimes limited and the costs associated with trial of their individual claim may only be justified where the purpose is to select a representative case and put a bell weather case to the test.
When clients do not pass through an attorney’s initial screening process, efforts should still be made to protect their interests. Some clients may ultimately develop future ailments that fit the causation and damage criteria; they should be urged to renew their contact or seek advice from other counsel if their conditions or diagnoses change in the future. Clients should be informed that you are willing to reconsider their case in the event future developments in the scientific community enable reliable conclusions to be drawn linking specific conditions to the drugs, medical devices, chemicals or other products to which they were exposed. An attorney may wish to keep track of rejected cases enabling contact with the client in the event new conclusions emerge from ongoing scientific research. If a causal connection is later established in what was initially determined to be either a premature claim because injuries had not yet emerged or an immature tort because of inadequate scientific proofs, legitimate claims may thus be salvaged if efforts were taken to preserve the statute or if the statutory time periods were tolled or simply have not yet expired. Premature or immature claims likewise may be advanced under these circumstances if these claims were severed from those claims that were determined by the trier of fact on the merits as previously discussed. See Ayers, Id.
Notwithstanding the conclusions of this article, it is also conceivable that class action settlements may be structured so as to avoid complex proofs regarding causation. Some clients may meet the definitions of a “qualified member of the class” simply because they suffer certain ailments or conditions. These people may be entitled to recover notwithstanding the inability to provide traditional proofs of causation. For example, a client may not have endured sufficient dose or duration, i.e., exposure, to allow a causal connection to be drawn by toxicologists or physicians even though their clinical presentation provides a reasonable basis to support their claim. A class settlement may simply be structured to base recovery upon the nature and extent of injury and may not necessarily draw distinctions based upon the dose or duration of exposure. Other traditional concerns may also become irrelevant due to the terms of the class action settlement. Even the analysis of a client’s contributory negligence or pre-existing conditions may ultimately prove to be non-issues. Thus, an alert attorney may ultimately be able to assist clients by seeking compensation in a class settlement even though the case was initially rejected based upon traditional screening criteria.
Although scientific constraints will traditionally govern the determination of causation and will define the scope of clients who meet the criteria, careful factual and legal analysis must still factor into the analytical triad. Unless the court determines the unique facts of a case cause “market share liability” to be an appropriate theory of recovery, linking a particular defendant to the exposure is essential. See Shackil v. Lederle Laboratories, 116 N.J.. 155 (1989), a case wherein the court declined application of market share liability in a DPT vaccine case based, in part, upon public policy and public health considerations. See, also, Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989). Since multiple manufacturers sometimes place the same or similar product(s) on the market, unless a client can provide solid product identification, an otherwise valid claim may be doomed to failure. Product identification may initially be based upon a client’s specific recall or proof of sale to a client’s employer. In other circumstances, product packaging exemplars can be obtained through discovery and are used to determine if the design or graphics assist in differentiation between various products within the same market. In the case of Fen-Phen, product identification was established through pharmacy records. The N.D.C. (National Drug Code) number contained in the pharmacy records provided proof certain that a claimant used drugs produced by specific manufacturers such as American Home Products.
On the other hand, product identification based upon sales to an employer is not always so straightforward. In the latex litigation, natural rubber latex gloves were sold by multiple manufacturers. Due to the AIDS epidemic and universal precautions, a shortage of gloves existed for substantial periods of time. Hospitals and private medical offices alike were often forced to purchase multiple brands depending upon market availability. Although substantial proofs were often generated through sales records, it was sometimes difficult to determine what happened to the gloves once they left the central supply department of a particular hospital where health care workers or patients were exposed. Sometimes, there was no way to determine whether a specific department or floor within a hospital was supplied with a particular brand. More importantly, not only if but when they were supplied became important in the effort to correlate exposure to a particular patient’s hospital stay. Where health care workers had multiple staffing assignments within the time period of their sensitization and/or reaction to latex products, the task became even more difficult. After sale and distribution, the gloves could indefinitely sit in a storage closet before a doctor or nurse or other member of the medical staff utilized them. Thus, the temporal sequence of the Plaintiff’s response (which included allergic reactions and even, in some cases, life-threatening anaphylactic reactions) was not always easy to link to a particular defendant if the Plaintiff could not identify the particular gloves utilized at the time of their reaction or could not demonstrate substantial exposure to a particular brand.
Finally, the ability to identify specific defendants and link them to the relevant events is not enough. Although a financially solvent or insured defendant is always a major concern in any case, it becomes more conceivable that a mass tort or class action could exhaust the policy limits and/or financial resources of a defendant. Thus, before undertaking a case of this magnitude and investing time and resources or accepting clients in an ongoing class action, it would be prudent to consider the viability of a Defendant or, at the very least, to make an early determination of available insurance coverage and the relative number of claims to ensure sufficiently deep pockets exist.
Note that the law is continually evolving and changes regularly. This website is not meant to be a comprehensive statement of any area of the law, but is intended only to afford some familiarity with basic terms and concepts in New Jersey. You should consult a lawyer for more detailed information. All materials on this website are the property of Drazin and Warshaw, P.C., copyright 2001, and are not to be used without written permission