Evolution of Mass Toxic Tort Litigation: Texas Levels the Playing Field

Christine G. Rolph and Valerie E. Torres

f Texas is an indicator of what is to come, the mass toxic tort a pesticide formulating and mixing facility that operated in defendant can expect a more level playing field. Mass tort Mission, Texas, during the 1950s and 1960s. The plaintiffs sued cases can involve the claims of hundreds or thousands of approximately thirty defendants, most of whom allegedly sup- Iplaintiffs and frequently go on for years, even decades, without plied chemicals to the mixing facility. The nineteen chemicals any evidence regarding the cause of the alleged injuries. Using the at issue include dieldrin, toxaphene, dichlorodiphenyltrichloro- threat of defending against such enormous litigation, toxic tort ethane (DDT), benzene hexa chloride (BHC), and chlordane. plaintiffs often are able to extract settlements from defendants Plaintiffs assert harmful exposure to a so-called “toxic soup” of regardless of the merits of the underlying claims. This past summer chemicals allegedly emanating from the mixing facility. Texas sought to alleviate this disparity. In a dramatic policy state- Five years after the case was filed, at the request of the plaintiffs’ ment, Texas made clear that it will not tolerate Texas plaintiffs pur- counsel and over the objections of the defendants, the trial court suing expensive mass tort actions without showing during discovery consolidated the claims of five plaintiffs and set their case for trial. that they possess reliable causation evidence to support the action. All five test plaintiffs suffered from some kind of lymphatic cancer In re Allied Chemical Corp., 227 S.W.3d 652 (Tex. 2007). and were single-handedly selected by the plaintiffs’ counsel. How- The practice of requiring prima facie causation evidence prior ever, the test plaintiffs had little in common. They ranged in age to trial is not new in the mass tort context. Jurisdictions such as from 29 to 74, resided throughout the neighborhood surrounding the California and New Jersey developed mechanisms requiring toxic mixing facility, alleged different times and durations of exposure that tort plaintiffs to provide such evidence, typically, pursuant to together spanned seven decades, and, in addition to cancer, claimed court scheduling orders. Texas, however, added a new and impor- injuries ranging from asthma to miscarriages to property damage. tant twist to that approach. With In re Allied Chemical, the Texas At the time the trial court set the case for trial, the plaintiffs had Supreme Court significantly limited the ability of Texas litigants failed to respond to an interrogatory asking each to identify to maintain mass toxic tort suits past even the discovery stage. In (1) the products to which they attributed their respective inju- In re Allied Chemical, the court considered by mandamus peti- ries, and, more importantly, (2) a medical practitioner (including tion the issues of (1) when causation evidence must be disclosed experts) who attributed their alleged injuries to exposure to the in a mass tort case in Texas and (2) what causation evidence is defendants’ specific products. In Texas, this interrogatory is known required before a mass tort case even can be set for trial. as the Able Supply interrogatory, named after Able Supply v. Moye, In combination with prior Texas Supreme Court precedent, 898 S.W.2d 766 (Tex. 1995). The Able Supply interrogatory is specificallyMerrell Dow Pharmaceuticals, Inc. v. Havner, 953 designed to provide each toxic tort defendant with adequate notice S.W.2d 706 (Tex. 1997), and Borg-Warner Corp. v. Flores, 232 of plaintiffs’ causation evidence so it has a fair chance to mount a S.W.3d 765 (Tex. 2007), In re Allied Chemical signals a signifi- defense at trial. In In re Allied Chemical, the plaintiffs provided one cant reshaping of toxic tort and mass tort litigation in Texas. of two boilerplate responses to the Able Supply interrogatory. Plain- While only directly applicable in Texas, this trilogy of opinions tiffs responded either that the interrogatory was “not applicable” or provides a template for other states to consider in establishing that “none of their treating physicians” could make the scientific standards for the timing and type of causation evidence neces- link between the plaintiffs’ alleged injuries and the defendants’ sary to maintain a mass tort action. The In re Allied Chemical products. In re Allied Chemical Corp., 227 S.W.3d at 656. decision stems from a large toxic tort litigation currently pend- After the Court of Appeals summarily denied the defendants’ ing in Hidalgo County, Texas, styled Acevedo v. Union Pacific petition for a writ of mandamus, the defendants sought mandamus Railroad Co. Hidalgo County is located in the Rio Grande relief from the Texas Supreme Court. The defendants challenged Valley, only a few miles from the Mexican border. The Acevedo the court’s trial setting on two grounds: (1) the trial court violated suit currently involves approximately 1,900 plaintiffs (down Texas law when it consolidated for trial the claims of five disparate from an initial 3,000) who purportedly worked at or lived near plaintiffs, and (2) the trial court erred in setting the case for trial in the absence of adequate responses to the Able Supply interrogatory. Ms. Rolph is a partner at Latham & Watkins LLP, in Washington, D.C. After the Texas Supreme Court requested further briefing in Ms. Torres is an associate at Latham & Watkins LLP, in San Diego. They the matter and stayed all trial court proceedings, the plaintiffs may be reached at [email protected] and [email protected]. attempted to moot the appeal by conceding to a trial on the

Published in Natural Resources & Environment, Volume 22, Number 4, Spring 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any por- tion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

NR&ESP08_finalreprint.indd 12 4/7/08 11:11:27 AM claims of only one plaintiff, rather than five, and pointing to In sum, in In re Allied Chemical, the Texas Supreme Court certain causation testimony. Specifically, after the court agreed accomplished several things. First, it made certain that frivolous to hear the matter, the plaintiffs amended their responses to the toxic tort suits will end at the discovery stage if plaintiffs are Able Supply interrogatory to include a list of chemicals to which not able to produce expert causation evidence in response to they potentially were exposed, as well as medical articles and discovery propounded at the discretion of defendants. Second, expert reports suggesting that those chemicals were capable of it confirmed that so-called “junk science” will not suffice to causing their alleged injuries. The Texas Supreme Court heard maintain these mass tort actions. Plaintiffs must introduce reli- argument on the matter on November 16, 2005. able scientific evidence that consists of more than submitting expert names and suggesting a chemical or product can cause an alleged injury. Third, it disallowed a trial setting in mass tort Texas Supreme Court Injects Measure of cases unless and until plaintiffs produce such evidence. Finally, Fairness into the Mass Tort Case once such evidence is produced, the trial court must allow On June 15, 2007, the Texas Supreme Court granted the defendants sufficient time to prepare for trial and thus cannot relief sought by the defendants in a 5–4 decision. On the trial rush the parties to trial. Together, the court’s rulings severely un- consolidation issue, the court held that the plaintiffs’ maneu- dercut plaintiffs’ ability to extract settlements from defendants vers at the trial court level to avoid appellate review did not based solely on the burdensome costs of defending a mass tort moot the issue, as there was a ripe issue for review, namely, the action and ensure that toxic tort cases proceed based exclusively propriety of a trial setting in the absence of adequate responses on reliable scientific evidence.See id. at 656, 659 (Hecht, J. to the Able Supply interrogatory. 227 S.W.3d at 655. The deci- concurring). To date, it does not appear that any other state has sion included two key substantive holdings. imposed similar requirements so early in a toxic tort case. First, the court found that the plaintiffs’ supplemental responses to the Able Supply interrogatory failed to make the vital causal connection. Id. at 656–57. Namely, the court noted that Innovative Approach Completes a Texas the plaintiffs failed to identify an expert who could connect the Supreme Court Causation Trilogy plaintiffs’ disease to the defendants’ products, observing that The practice of requiring prima facie causation evidence prior “[e]vidence that a chemical can cause a disease is no evidence to trial is not novel per se. Lore v. Lone Pine Corp., 1986 N.J. Super. that it probably caused the plaintiff’s disease.” Id. at 656 (emphasis Lexis 1626 (N.J. Super. Ct. Law Div. 1986), and its progeny led to in original). To adequately respond to an Able Supply interroga- the birth of what is often referred to as the Lone Pine order. The Lone tory, the court held that toxic tort plaintiffs must do more than Pine order is a case management tool used by courts in mass tort introduce epidemiological studies; plaintiffs must identify in litigation. It requires at the outset that plaintiffs in large, complex their responses an expert who can (1) explain why a particular matters provide (1) facts relating to each plaintiff’s alleged exposure epidemiological study is reliable, (2) explain how the plaintiffs and (2) expert reports that offer some evidentiary support for each are similar to the study’s subjects, and (3) rule out other poten- plaintiff’s claim that the chemical(s) in question caused their alleged tial causes with “reasonable certainty.” Id. The court noted that injury. Similarly, based on the decision in Cottle v. Superior Court, 3 excluding other causes is a “special problem” in toxic tort cases Cal. App. 4th 1367 (1992), a Cottle hearing is a mechanism used in where plaintiffs typically allege exposure to a large number of dif- California to compel plaintiffs early in mass tort actions to produce ferent chemicals. Id. at 656. Nevertheless, although it recognized prima facie evidence that exposure to a particular substance caused that the required thresholds would be hard for plaintiffs to meet, their injuries. Thus, like the Able Supply interrogatory, Lone Pine the court emphasized that Texas courts simply will not “embrace orders and Cottle hearings are measures used to preserve the resources inferences that science would not draw.” Id. at 656–57. of the parties and the judiciary by weeding out unsupported claims. Second, the court held that because the plaintiffs failed to However, unlike Lone Pine orders and Cottle hearings, the proffer expert evidence linking the plaintiffs’ alleged illness to approach adopted in In re Allied Chemical is novel in terms of the defendants’ products, defendants could not prepare a viable when and what type of causation evidence a mass tort plaintiff defense for trial. Therefore, it was premature for the trial court to is required to submit. Distinct from the procedures employed by set the plaintiffs’ claims for trial. Id. at 657–58. However, even if Lone Pine and Cottle, court involvement is not necessary before and when the plaintiffs were able to provide such information, a mass tort plaintiff is required to produce prima facie causa- the trial court must provide the defendants with adequate time to tion evidence. Pursuant to Able Supply, Texas plaintiffs must prepare a viable defense in setting any trial due to the complexity produce some type of causation evidence during the discovery of issues raised in a mass tort action. Otherwise, the court noted, phase in response to discovery propounded by defendants. toxic tort plaintiffs could use trial settings to “hold the parties Hence, defendants, not the court, dictate when plaintiffs must hostage,” in essence using a trial setting as leverage for settlement. present this evidence. In re Allied Chemical adds another twist Id. at 659. In light of the plaintiffs’ inadequate Able Supply inter- to this scenario. The decision prohibits any trial setting until rogatory responses, the court directed the trial court to vacate its plaintiffs name a medical practitioner or causation expert(s) order setting the plaintiffs’ claims for trial “until the defendants who can connect a particular defendant’s product to plaintiffs’ have a reasonable opportunity to prepare for trial after learning specific injuries. Moreover, even after the introduction of such who will connect their products to the plaintiffs’ injury.” Id. evidence, In re Allied Chemical requires that a trial court provide

NR&ESP08_finalreprint.indd 13 4/7/08 11:11:28 AM defendants “a reasonable opportunity to prepare for trial after Warner that allegedly contained asbestos. In Borg-Warner, the court learning who will connect their products to plaintiffs’ injuries.” specifically rejected the premise that “if there is sufficient evidence Thus, in terms of timing, In re Allied Chemical gives the de- that the defendant supplied any of the asbestos to which the plaintiff fendant, not the trial court, control of when such evidence is was exposed, then the plaintiff has met the burden of proof.” Id. at produced and sets limitations on what the trial court can and 773 (emphasis in original). Instead, the court held that the plaintiff cannot do before and after the evidence is produced. must introduce evidence that the defendant’s conduct or product was With respect to what causation evidence is sufficient,In re a “substantial factor” in bringing about the plaintiff’s injuries. Id. Allied Chemical made clear that the plaintiffs’ causation evidence “Substantial factor” causation requires that a plaintiff provide must be based on reliable scientific methodology. The decision is quantitative information to support causation under Texas the third installment in a series of decisions by the Texas Supreme law. Specifically, a plaintiff must present the following: (1) evi- Court that define the causation requirements in the mass tort dence of the approximate dose to which the plaintiff was exposed, context. Each decision establishes standards relating to the type (2) defendant-specific evidence relating to what percentage of of evidence necessary to demonstrate causation. The practical the dose is attributed to the defendant’s product, and (3) evidence effect of these decisions is to discourage plaintiffs from bringing that the defendant-specific dose is of a sufficient amount to cause cases based on “junk science,” without evidence tying a specific the alleged injury. Id at 771–73. Citing Havner, the court stated defendant’s product or conduct to the plaintiffs’ alleged injury. that evidence to support that the amount is sufficient may include With In re Allied Chemical, the Texas Supreme Court confirmed epidemiological evidence if such studies present a doubling of the that Texas courts will deny a trial setting in a mass tort case until risk and the plaintiff can demonstrate that his or her dose is com- plaintiffs put forward certain causation evidence. parable to the dose of those in the studies. Id. at 771–72. To date, The first in the trilogy of causation decisions came in July at least one Texas appellate court has relied on the principles 1997 with the court’s decision in Merrell Dow Pharmaceuticals, adopted in Borg-Warner to reverse a jury’s finding of causation. See Inc. v. Havner. In the context of litigation involving the pre- Georgia-Pacific Corp. v. Stephens, No. 01-05-00132-CV, 2007 WL scription drug Benedictin, the court announced guidelines as to 2137801 (Tex. App.-Houston [1st Dist.] July 26, 2007) (holding the use of epidemiological studies to demonstrate causation in that under the causation test in Borg-Warner, the plaintiffs’ expert toxic tort cases. While the court agreed that a plaintiff can rely causation testimony was legally insufficient to support the jury’s on “properly designed and executed epidemiological studies” as negligence and strict liability marketing defect verdicts). evidence of general causation, such studies must demonstrate that Together, Havner and Borg-Warner establish the type and qual- exposure to the substance at issue presents more than a “doubling ity of general and specific causation evidence that plaintiffs in mass of the risk” that the plaintiff’s alleged injury or condition will tort cases must present before a court can impose liability. In re Allied occur. 953 S.W.2d at 717. Havner further required that epidemio- Chemical expands these rulings by holding that Texas law also will not logical studies utilize the “generally accepted” significance level permit a trial setting until after a plaintiff provides a causation expert of 95 percent to demonstrate a statistically significant association, who connects a specific defendant’s product to his or her alleged injury refusing to “widen the boundaries at which courts will acknowl- using proper scientific methodology. Nevertheless, it remains to be edge a statistically significant association.”Id. at 724. Moreover, seen whether other states will follow suit. Thus far, at least one state the court instructed lower courts not to accept lone epidemiologi- court, located in Utah, has refused to adopt the causation standard set cal studies as legally sufficient proof of causation.Id. at 718. The forth in Borg-Warner, holding that issues of causation are fact sensitive court emphasized that the simple introduction of epidemiological and each case must stand on its own. In re Asbestos Litigation, Case No. studies was insufficient to show a substantially elevated risk. 010900863 (UT Dist. Ct., 3rd Jud. Dist., Sept. 5, 2007). Additionally, if relying on epidemiological studies, Havner In sum, In re Allied Chemical, in combination with Havner and requires the plaintiff to show that he or she is similar to the exposed Borg-Warner, places Texas on the cutting-edge with respect to subjects in the studies. Id. at 720. The plaintiff must therefore dem- causation issues in mass tort cases. Once deemed a very favorable onstrate the following: (1) exposure to the same substance at issue venue for mass tort plaintiffs, the Texas Supreme Court has taken in the study, (2) exposure or dose levels comparable to or greater steps to level the playing field. By incorporating specific scientific than those in the study, (3) exposure occurring before the onset of concepts into its legal opinions and requiring trial courts to get disease, and (4) a latency period comparable to that experienced behind an expert’s testimony and actually examine the science by those in the study. Id. In addition, under Havner, the plaintiff itself, the Texas Supreme Court has taken a firm stance against must offer evidence negating with “reasonable certainty” other “junk science.” The court’s holding in In Re Allied Chemical that plausible causes of his or her injury or condition. Id. In short, the bars trial settings unless and until mass tort plaintiffs offer the req- Havner decision creates a comprehensive set of rules governing the uisite causation expert and evidence brings a measure of fairness evidence that a plaintiff can use to establish causation and, in the to mass tort cases and reduces the risk of extracting settlements process, significantly limits a toxic tort plaintiff’s ability to rely upon from defendants in cases without merit merely to avoid the “costs unscientific methodologies to shore up their allegations. of defense.” With its ground-breaking decisions, Texas sets a road- Just a week prior to its In re Allied Chemical decision, on June map for other states to consider following in mass tort litigations. 8, 2007, the court issued a decision in Borg-Warner Corp. v. Flores. Borg-Warner involved allegations of asbestos exposure by a brake Portions of this article were adapted from “Client Alert,” which can mechanic who worked with brake pads manufactured by Borg- be located at www.lw.com.

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