The Latest Trend in Toxic Torts
Christine, Brian, Risk Management
Claims due to alleged exposure to toxic substances in the workplace are a major cause of litigation for companies, said Mark R. Montgomery, Ph.D., professor of toxicology at the University of South Florida in Tampa at RIMS 1993 Florida Chapters 18th Annual Joint Conference. "Although some of these claims may be true, many are based on questionable science." Dr. Montgomery stated that the so-called experts called in to provide their opinion on whether a causal relationship exists between a chemical exposure and an illness often make assertions that are not based on logic or scientific fact.
Today, many of these cases are associated with a spurious illness known by many names, but most commonly as MCS, or multiple chemical sensitivities. "MCS is a group of alleged illnesses due to an immunological reaction supposedly caused by chemicals in the environment," said Dr. Montgomery. "It is the single biggest litigation topic in toxicology and the second biggest cause of workers' compensation litigation next to slips and falls." Predicting that cases related to MCS and other similar conditions will increase, Dr. Montgomery suggested that risk managers and their companies can improve their litigation results by learning how to evaluate plaintiff's arguments.
When involved in toxic exposure litigation, risk managers should be on the lookout for evidence of junk science. "Junk science is any science that is inappropriately done and therefore scientifically invalid," explained Dr. Montgomery. In toxic exposure cases, one of the most commonly forms of junk science is the use of uncontrolled laboratory data. For example, some plaintiffs will misuse such data in an attempt to prove that a chemical exposure caused the illness. "In these cases, the plaintiff's legal team sends out a blood sample for analysis, and it comes back showing a harmless concentration of a substance such as formaldehyde that every normal, healthy person has in his or her system." This will then be portrayed to the court as evidence of injury.
Another indication of junk science is when anecdotal case reports are used as evidence of a caused and effect relationship between the chemical exposure sure and the plaintiff's alleged illness, said Dr. …