Litigation 101 (Toxic Torts)

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.

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.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.