Since its inception in 1984, Trial Behavior Consulting has been a national leader in toxic tort trial consulting. As the trial consultants for the Asbestos Claims Coordinating Facility (ACCF), we conducted dozens of mock trials, hundreds of post trial interviews, and numerous community surveys to develop insights into the factors that influence jurors' verdicts in asbestos cases. We also selected juries in hundreds of asbestos cases around the country. We have built on that earlier research and trial experience, working with major private firms and corporate counsel at Fortune 500 companies on a wide range of toxic tort litigation, including exposure to heavy metals, volatile chemicals, toxic spills, and groundwater contamination.
Our extensive experience in mass toxic tort litigation encompasses trials in venues throughout the country. These cases sometimes involved thousands of plaintiffs with a smaller group of exemplar plaintiffs, and other times involved up to 250 plaintiffs with verdict questions on each plaintiff. A number of cases involved heavy metals such as cadmium, arsenic, lead, and volatile chemicals including PCE, Dioxin, MEK, TCE, and chlorinated hydrocarbons. In many of these cases, multiple substances were involved. In almost all of them, we consulted with trial teams representing several law firms. Typically, corporate as well as government regulatory issues were involved. Claims involved included cancer, fear of cancer, property damage, and medical monitoring.
Just as we did with the ACCF, we have provided a full range of services in these other types of toxic tort cases, including community surveys, fact and expert witness preparation, focus groups, mock trials, assistance with jury selection and systematic post-trial interview studies. This integration of services helped our clients successfully manage the complex business, insurance and financial risk that these cases typically involve. The variety of approaches to understanding juror reactions have given our clients empirically rich, valuable insights on how to best present their corporate story and the scientific evidence that supports their case. Also, rather than treating each case as a singular event, Trial Behavior helps corporate counsel and trial counsel become a learning team that builds on jury research insights and past trial experiences to continually refine strategies, develop more persuasive themes, company stories and demonstratives, and prepare experts for effective state of the art and scientific testimony.
We have seen the nature of asbestos litigation shift and change over the years, as the first tier defendants have disappeared or transformed, and second-tier, low dose or no dose products have become targets for plaintiffs. We are also following emerging case types, such as manganese and silica litigation.
Emerging Toxic Torts
Like asbestos claims before them, mangenese poisoning and silicosis claims involve diseases that result from long term exposure of workers in industrial occupations. The potential for the kind of large-scale claim action suits seen with asbestos is also very real, as the new diseases may similarly touch a significant percentage of the workforce at affected worksites.
Manganese Poisoning
Manganism is caused by excessive exposure to manganese through welding fumes or dust. Manganism affects the brain, kidney, liver, lungs, and also affects the central nervous system in a way similar to Parkinson's disease. Because of the similarities in the symptoms of Manganism and Parkinson's Disease, Manganism has been classified as Parkinson's syndrome . Products liability lawsuits have been filed against manufacturers of welding supplies which contain toxic fillers and which are responsible for manganese poisoning and early Parkinson's in welders.
In a way similar to asbestos claims, manganese complaints often allege that defendants concealed information about the potential hazards of manganism from welders to avoid the costs of safety precautions, and/or avoid litigation by people injured by welding fumes.
Possible defendants include manufacturers, sellers, and suppliers of welding products. These companies are currently facing numerous claims.
Silica Litigation
Silica litigation involves workers and individuals who suffer from silicosis and diseases caused by the inhalation of respirable crystalline silica. Many workers in the foundry, steel, sandblasting, refractory, construction, brick, and stone industries have been exposed to high levels of respirable silica. Prolonged inhalation of silica can cause silicosis, a disabling and nonreversible condition of the lung, as well as lung cancer, lupus, scleroderma, and rheumatoid arthritis.
Companies that are on the periphery of silica litigation should take note of what happened to companies that were on the fringes of asbestos litigation a decade ago. Today these companies face thousands of claims and virtually bottomless liability and legal expense. Jury research can lead potential defendant companies to postures and strategies by which it can minimize the risk of becoming a big player in the silica litigation of tomorrow.
Services in Emerging Toxic Torts
In any “new” area of litigation, it is necessary to examine the current climate of juror attitudes and expectations of the parties involved. A series of exploratory and probative focus groups can be an opportunity to listen to jurors and allow them to guide future defense case presentations in new and/or unexplored ways. Focus groups are a way to examine jurors' exposure and attitudes toward issues, evaluate areas of confusion and factual distortion, understand where jurors think and feel that defense companies have gone wrong, find out what would make them feel companies had done the right thing, as well as explore juror receptivity to potential areas for theme development in emerging toxic tort litigation.
Other types of studies can also be helpful when looking at a fairly “new” area of litigation. For example, with a community survey, TBC can identify characteristics that are associated with high damage jurors, low damage jurors, defense jurors and stealth jurors through advanced statistical techniques.
Jury research can also determine which questions are critical to ask, both for voir dire or for a written juror questionnaire to propose to the court.
Mock trials can be conducted to gauge juror reactions to the defense presentation, as well as juror reaction to case themes, issues, facts, arguments, and damages. They can also be used to explore the issues, themes, potentially useful graphics, and test new defense theories on specific issues.
Other Trends in Toxic Torts
Two other types of toxic torts should also briefly be mentioned here, not because they are new, but because the number of cases involving these claims is likely to rise in the coming years.
One type arises out of one-time accidents that typically affect a large population. Examples include the explosion of a tank containing oleum, concentrated sulfuric acid and sulfuric trioxide at a sulfuric acid manufacturing plant operated by General Chemical Company in Richmond, California . This incident, which spread a toxic cloud of sulfuric acid over a wide area, resulted in a $180 million settlement.
With our country's aging rail and road system and increased pressure on truck drivers to work long hours, the number of toxic tort accidents is likely to increase in the coming years. Smart companies will anticipate this and prepare, by taking proactive measures to prevent such accidents, conducting community surveys to understand the fears and preconceptions of the populations likely to be most affected and to serve as jurors in jury trials, and ensuring that company policies reflect an understanding of the safeguards that jurors expect to see.
Another type of toxic tort litigation on the rise involves accidental and unintended long-term exposures to residential populations as a result of spills or seepage of toxic chemicals from industrial plants. Examples include the alleged seepage of rocket fuel from Lockheed into wells and water sources in southern California, and the seepage of gasoline additives into water sources.