Latham & Watkins Environment, Land & Resources Department

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1 Number 609 June 22, 2007 Client Alert Latham & Watkins Environment, Land & Resources Department Leveling the Playing Field in Mass Tort Litigation: Texas Mass Tort Plaintiffs Required to Present Causation Evidence Prior to Trial-Setting The state of Texas truly is on the cutting-edge with respect to causation issues in mass tort cases. Once deemed a very favorable venue for mass tort plaintiffs, the Texas Supreme Court has now leveled the playing field. Introduction Defendants of mass tort cases obtained a major appellate victory before the Texas Supreme Court last week. In In re Allied Chemical Corp., et al., the court considered by mandamus petition the issues of (1) when causation evidence must be disclosed in a mass tort case in Texas, and (2) what causation evidence is required for a mass tort case to be set for trial. 1 In a 5-4 decision, the court ruled that a trial judge is not allowed to set a mass tort case for trial unless and until the plaintiffs identify a causation expert who can connect a particular defendant s product to plaintiffs specific injuries. The court articulated a rule applicable to mass tort cases only, requiring claimants to disclose their general and specific causation evidence during initial discovery proceedings. The court s objective was to forestall mass tort defendants from having to spend thousands of hours and millions of dollars on claims that can never be proven. In essence, mass tort claimants bringing a case in Texas now must be prepared to set forth their causation experts in response to the initial set of discovery from defendants, and certainly long before any trial-setting. 2 Notably, the Texas Supreme Court also stated that plaintiffs cannot raise a fact issue on causation merely by submitting expert names. In toxic tort cases generally, plaintiffs must present reliable epidemiological literature supporting general causation, and must demonstrate that the plaintiffs exposure is similar to that of the study s subjects. In addition, the court stressed that plaintiffs must exclude other causes with reasonable certainty. The court noted that excluding other causes is a special problem in toxic tort cases where plaintiffs typically allege exposure to many different chemicals. 3 While the court recognized that the required thresholds would be hard for plaintiffs to meet, the Texas courts simply will not embrace inferences that science would not draw. 4 Together, the court s rulings severely undercut plaintiffs ability to extract settlements from defendants based solely on the immense costs of defending a mass tort action. The In re Allied Chemical decision, together with the Texas Supreme Court s prior decisions in Merrell Dow Pharmaceuticals, Inc. v. Havner 5 and Borg-Warner Corp. v. Flores, 6 signal a significant re-shaping of toxic tort and mass tort litigation in Texas. While only directly applicable in Texas, this trilogy Latham & Watkins operates as a limited liability partnership worldwide with an affiliate in the United Kingdom and Italy, where the practice is conducted through an affiliated multinational partnership. Under New York s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY , Phone: Copyright 2007 Latham & Watkins. All Rights Reserved.

2 of opinions, discussed below, provide a template for other states to consider in establishing a more level playing field for mass tort litigation nationwide. Case Background The In re Allied Chemical decision arises from a large toxic tort litigation currently pending in Hidalgo County, Texas, titled Acevedo, et al. v. Union Pacific Railroad Co., et al. The suit involves approximately 1,900 plaintiffs who allegedly worked at or lived near a pesticide formulating and mixing facility in Mission, Texas, in operation from roughly 1950 to The plaintiffs sued approximately 30 defendants, most of whom are claimed to have supplied chemicals to the facility. Latham & Watkins LLP represents defendant Montrose Chemical Corporation of California in the case. The 19 chemicals at issue include dieldrin, toxaphene, DDT, BHC and chlordane. Plaintiffs claimed they were harmed by exposure to a so-called toxic soup of chemicals emanating from the facility. Five years after the case was filed, the trial court set a trial date for five test plaintiffs selected by the plaintiffs counsel. The test plaintiffs had little in common, ranging in age from 29 to 74, residing throughout the neighborhood surrounding the mixing facility, alleging exposure spanning seven decades, and claiming injuries ranging from asthma to cancer to property damage. 8 At the time the trial court set the trial date, the plaintiffs had failed to respond to an interrogatory asking plaintiffs to identify any medical practitioner (including experts) who attributed their alleged injuries to exposure to the defendants products, as well as the name or identity of the products to which their alleged injuries are attributed. In Texas, this interrogatory is known as the Able Supply Interrogatory, 9 and it serves to provide each toxic tort defendant with adequate notice of plaintiffs causation evidence so that it may prepare its defense for trial. In this case, the plaintiffs responses to this Interrogatory were either not applicable or that none of their treating physicians could make the scientific link between plaintiffs alleged injuries and the defendants products. 10 Relying on extensive trial briefing developed and drafted by Latham, the defendants challenged the trial court s order setting the case for trial on two grounds: (1) the trial court erred in setting a consolidated trial with such dissimilar test plaintiffs in violation of Texas law; and (2) the trial court erred in setting any case for trial in the absence of adequate responses to the Able Supply Interrogatory. When the Court of Appeals denied relief, the defendants filed a petition for writ of mandamus review before the Texas Supreme Court. After the Texas Supreme Court requested further briefing in the matter and stayed all trial court proceedings, the plaintiffs attempted to moot the issues on appeal by conceding to a trial on the claims of one test plaintiff, rather than five, and pointing to certain causation testimony. 11 The Texas Supreme Court heard argument on the matter on November 16, Summary and Analysis of Decision On June 15, 2007, the Texas Supreme Court granted the relief sought by the defendants in a divided 5-4 decision. First, on the trial consolidation issue, the court held that the plaintiffs maneuvers at the trial court to avoid appellate review did not moot the issue, as there was a ripe issue for review, namely, the adequateness of the plaintiffs Able Supply Interrogatory responses. 12 The court then ruled that the plaintiffs responses to the Able Supply Interrogatory were wholly inadequate. 13 To adequately respond to an Able

3 Supply Interrogatory, the court held that toxic tort plaintiffs must identify in their responses an expert who based on reliable scientific methods can: (1) identify why a particular epidemiological study is reliable; (2) explain how the plaintiffs are similar to the study s subjects; and (3) eliminate all potential confounding causes with reasonable certainty. 14 Recognizing that such evidence might be difficult to obtain, the court nonetheless concluded that courts may not allow cases to move forward based on inferences supported by unreliable science. 15 The court held that because the plaintiffs failed to proffer expert evidence linking the plaintiffs alleged illness to the defendants products, defendants could not prepare a viable defense for trial. Therefore, it was premature for the trial court to set the plaintiffs claims for trial. 16 Even if the plaintiffs are able to provide such information, the trial court must provide the defendants with adequate time to prepare a viable defense in setting any trial due to the complexity of issues raised in a mass tort action. Otherwise, the court noted, toxic tort plaintiffs could use trial settings to hold the parties hostage, using the trial setting as leverage for settlement. 17 In light of the plaintiffs inadequate Able Supply Interrogatory responses, the court directed the trial court to vacate its order setting the plaintiffs claims for trial until the defendants have a reasonable opportunity to prepare for trial after learning who will connect their products to the plaintiffs injury. 18 Thus, the In Re Allied Chemical decision creates a new procedural rule which establishes an inactive docket for mass tort cases. 19 In essence, trial courts cannot set a trial date in a mass tort case unless and until plaintiffs name a causation expert(s) who can link their alleged injury to the defendants products based on reliable scientific evidence. Trilogy from the Texas Supreme Court on Causation In re Allied Chemical is the third installment in a series of decisions by the Texas Supreme Court which define the causation requirements in the toxic tort and mass tort context. Each decision establishes standards relating to the type of evidence necessary to demonstrate causation. The practical effect of these decisions is to discourage plaintiffs from bringing cases based on junk science, without evidence tying a specific defendant s product or conduct to the plaintiffs alleged injury. With In re Allied Chemical, the Texas Supreme Court rules that Texas will not tolerate even a trial-setting in a mass tort case before plaintiffs put forward certain causation evidence. The first of the trilogy of causation decisions came in July 1997 with the court s decision in Merrell Dow Pharmaceuticals, Inc. v. Havner. 20 In the context of litigation involving the prescription drug Benedictin, the court announced guidelines as to the use of epidemiological studies to demonstrate causation in toxic tort cases. While the court agreed that a plaintiff can rely on properly designed and executed epidemiological studies as evidence of general causation, such studies must demonstrate that exposure to the substance at issue presents more than a doubling of the risk that the plaintiff s alleged injury or condition will occur. 21 Havner further required that epidemiological studies must utilize the generally accepted significance level of 95 percent to demonstrate a statistically significant association, refusing to widen the boundaries at which courts will acknowledge a statistically significant association. 22 Moreover, the court instructed lower courts not to accept lone epidemiological studies as legally sufficient proof of causation. 23 The court emphasized that the simple introduction of

4 epidemiological studies was insufficient to show a substantially elevated risk. Additionally, if relying on epidemiological studies, Havner requires the plaintiff to show that he or she is similar to the exposed subjects in the studies. 24 The plaintiff must therefore demonstrate the following: (1) exposure to the same substance at issue in the study; (2) exposure or dose levels comparable to or greater than those in the study; (3) exposure occurred before the onset of disease; and (4) the latency period was comparable to that experienced by those in the study. In addition, under Havner, the plaintiff must offer evidence negating with reasonable certainty other plausible causes of his or her injury or condition. 26 In short, the Havner decision creates a comprehensive set of rules governing the evidence a plaintiff can use to establish causation, and in the process, significantly limits a toxic tort plaintiff s ability to rely upon unscientific methodologies to shore up their allegations. On June 8, 2007, the court issued a decision in Borg-Warner Corp. v. Flores, 27 a case involving allegations of asbestos exposure by a brake mechanic who worked with brake pads manufactured by Borg-Warner that allegedly contained asbestos. In Borg-Warner, the court specifically rejected the premise that if there is sufficient evidence that the defendant supplied any of the asbestos to which the plaintiff was exposed, then the plaintiff has met the burden of proof. 28 Instead, the court held that the plaintiff must introduce evidence that the defendant s conduct or product was a substantial factor in bringing about the plaintiff s injuries. 29 Substantial-factor causation requires that a plaintiff provide the quantitative information necessary to support causation under Texas law. 30 Specifically, a plaintiff must present the following: (1) evidence of approximate dose to which the plaintiff was exposed; (2) defendant-specific evidence relating to what percentage of dose is attributed to the defendant s product; and (3) evidence that the defendant-specific dose is of a sufficient amount to cause the alleged injury. 31 Citing Havner, the court stated that evidence to support that the amount is sufficient may include epidemiological evidence if such studies present a doubling of the risk and the plaintiff can demonstrate that his or her dose is comparable to the dose of those in the studies. 32 Together, Havner and Borg-Warner established the type and quality of general and specific causation evidence that the plaintiffs in mass tort cases must present before a court can impose liability. In re Allied Chemical extends these rulings by holding that Texas law also will not permit a trialsetting until after a plaintiff provides a causation expert who connects a specific defendant s product to his or her alleged injury using proper scientific methodology. Conclusion The state of Texas truly is on the cutting-edge with respect to causation issues in mass tort cases. Once deemed a very favorable venue for mass tort plaintiffs, the Texas Supreme Court has now leveled the playing field. By incorporating specific scientific concepts into its legal opinions and requiring trial courts to get behind an expert s testimony and actually examine the science itself, the Texas Supreme Court has taken a firm stance against junk science. The court s decision in In Re Allied Chemical, to bar trial-settings unless and until mass tort plaintiffs can provide the requisite causation expert and evidence, brings a measure of fairness to mass tort cases and lowers plaintiffs abilities to extract settlements from defendants in cases without merit merely to avoid the costs of defense. Plaintiffs in Texas now have to provide

5 causation evidence at the beginning of a case, and certainly before they can move off of the inactive docket for mass tort cases and obtain a trial-setting. With its ground-breaking decisions, Texas sets a roadmap for other states to consider following in mass tort litigations. Endnotes 1 In re Allied Chemical Corp., et al., 2007 Tex. LEXIS 563 (Tex. June 15, 2007). 2 Id. at * Id. at *3-6. The court also ruled that the mandamus petition was not moot because the issue was capable of repetition and the parties positions had been preserved as of the time the court issued its order staying trial court proceedings. 13 Id. at * Id. at *9. 15 Id. 16 Id. at * Id. at *9. 17 Id. at *15. 4 Id. (quoting Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 727 (Tex. 1997)) S.W.2d 706 (Tex. 1997) Tex. Sup. J. 851, 2007 Tex. LEXIS 528 (Tex. June 8, 2007). 7 In re Allied Chemical Corp., et al., 2007 Tex. LEXIS at *2. 8 Id. at * See Able Supply v. Moye, 898 S.W.2d 766 (Tex. 1995). 10 In re Allied Chemical Corp., et al., 2007 Tex. LEXIS at *7-8. The court noted that, after it had requested additional briefing, the plaintiffs amended their response to the Interrogatory to include chemicals to which they potentially were exposed, as well as medical articles and expert reports suggesting that those chemicals were capable of causing to their alleged injuries. Id. at *8. 18 Id. at * Id. at *30 (dissenting opinion, C.J. Jefferson) S.W.2d 706 (Tex. 1997). 21 Id. at Id. at Id. at Id. at Id. 26 Id Tex. Sup. J. 851, 2007 Tex. LEXIS 528 (Tex. June 8, 2007). 28 Id. at *24 (emphasis in original). 29 Id. at * Id. at * Id. at *19, * Id. at *16, * Id. at *3-4.

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