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 re- sponses 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.