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This long-running column examines ethics in the paralegal profession. Do you have an ethical dilemma or question? E-mail us today.
A Paralegal's Role in Toxic Torts
Tips to help you face this challenge.
(Originally appeared in print as "Coping with Contaminants")
One of many paralegal jobs you may be called upon to assist with is toxic tort cases. This is a growing area of law involving some fascinating and challenging cases.
At the same time, such cases can be difficult and time consuming. Your experience, knowledge and skills can make you a valuable asset to the trial team in a toxic tort case.
Often paralegals are asked to assist in gathering liability and damages information, which may involve interviews with the client, gathering documents and researching on the product involved. You may even be asked to assist in evaluating a potential new case. To carry out these tasks, youll want to be aware of what to look for.
Communication between the paralegal and attorney or trial team is extremely important in these cases. The details and intricacies of toxic tort cases are carefully evaluated and the case is meticulously prepared for trial or possible settlement negotiations.
If several people are exposed during the same incident, its easier to document and develop the liability and damages than in the case of an individual case of toxic exposure.
Toxic tort cases are becoming more and more common. The number and diversity of occurrences may surprise you. For example:
In Texas, more than $16.5 million was paid to 2,500 people who lived in a large area contaminated by arsenic from a cotton gin and an arsenic processing plant. Contamination by arsenic is known to cause various health problems including lung, bladder, liver and skin problems.
The Disney Creative Campus, proposed for a 125-acre Superfund cleanup site in Glendale, Calif., may be contaminated by a variety of toxic substances. State officials are investigating. In a related concern, there have been reports of increased levels of chromium 6, a toxic heavy metal, in the Glendale area drinking water.
The Dallas Morning News reports that federal housing projects all over the nation are located on or near toxic waste, exposing close to 1 million families to potential health risk.
In May of this year, the Illinois Department of Public Health released information from a preliminary study that reveals workers at the LaSalle Electrical Utilities Company may have elevated rates of certain types of cancer due to contamination by polychlorinated biphenyl (PCB).
This summer, the pesticide Dursban was found to be an unacceptable risk to children and most household use was banned by the Environmental Protection Agency. Ongoing research has revealed a higher level of contamination after inhaling the pesticide. Researchers are trying to determine if this substance has caused an increase in learning disabilities among children.
One of the newest areas of litigation and medical concern involves chemical sensitivities. Many people report they have been harmed, or have developed an impaired immune system, due to exposure of everyday household chemical products.
When many Persian Gulf War veterans developed symptoms similar to chemical sensitivities after returning from active duty, hearings were held. Doctors began monitoring these veterans and their families. The monitoring is ongoing.
In a 1993 congressional hearing on chemical sensitivity and Persian Gulf veterans, Claudia S. Miller, a doctor and environmental and occupational medicine expert, said:
First, a note of caution. As with any case, be sure you read the rules yourself and meet regularly with your attorney or trial team to go over and become familiar with the rules of your jurisdiction, especially regarding discovery matters, evidence and applicable deadlines. Youll probably be expected to assist in monitoring deadlines and compliance with rules.
The problem of proof in toxic cases is probably the most difficult. First, it must be proved that the person was exposed to a harmful substance. Then, it must be proved that the substance caused injury. Essentially, the client is put in the position of having to prove that anything he or she came into contact with in the past didnt injure him or her, but the subject of the lawsuit did.
When evaluating a toxic exposure case, the clients history is a fundamental issue. Its very important to question the client specifically about any past use of, or any association with, chemicals or toxic materials, either at home or in his or her place of employment. The personal history of the person is critical in an attempt to pursue a toxic exposure case.
For example, if the person grew up in an agricultural area, where pesticides were in heavy and continual use, defendants will question whether the clients injuries are a result of long term, insidious, exposure in his or her home environment.
You and the trial team will want to pay close attention to employment history and seek information on any work around solvents or other potentially toxic materials. If the client does have any potential exposure from work-related activities, find out as much as you can about the specific chemical agents the client has worked around and obtain Material Safety Data Sheets (MSDS), a list of hazardous ingredients and the associated hazards such as fire and explosion, health hazards from exposure, emergency and first-aid procedures, toxicity information, federal regulatory information, employee handbooks and any other information available. Also gather information on employee health and safety training and safety equipment and devices used.
If a toxic exposure case involves inhalation, ask the client about any history of tobacco use, and watch for documentation in the medical records, as it will be a factor in determining the cause of respiratory-tract problems.
You can expect some very specific discovery questions regarding the clients entire medical history.
Additionally, discovery will often attempt to track the clients exposure to every possible toxin throughout his or her entire lifetime. Youll probably also see discovery directed at identification of the exact toxins the client claims harmed him or her.
Explain to the client how important it is for him or her to give you complete details.
Educating the Jury
Demonstrative evidence can be quite effective in toxic tort cases. You may be asked to make recommendations about what you think would be forceful without being too complicated. Think about the most effective ways to educate the jury.
For instance, you can convey a case involving the leak of a toxic chemical in several ways. For example, charts and spreadsheets can be prepared showing the legal description of affected land and symptoms or injuries to each person and their livestock or pets.
Also, an effective visual demonstration could be a map with an overlay or a computerized re-creation to show the toxic cloud wafting over the land, or spilling into the local water supply and spreading throughout the area. This could be as simple or as elaborate as the trial team wishes to make it.
Timelines and activity calendars for individuals can be helpful to track exposure, the onset of symptoms, and medical treatment and the exposure- affected life.
You may be asked to locate and conduct an initial interview with potential expert witnesses or to gather curriculum vitaes for the attorneys to review. Keep in mind that the use of experts in toxic tort cases is crucial.
They are valuable because of their technical, scientific and medical knowledge. Experts are also excellent resources for research data, studies, agency reports, and such data as transport, reporting and storage regulations, and helping to locate other specialists.
The experts and consultants often have their own independent testing laboratories that can re-create the chemical or gas composition and reaction of different materials in question.
At times, the following general types of testing may be required:
The trial team will rely heavily on the experts for guidance based on the facts and claims of the specific case. Remember the testifying and consulting experts must meet rigorous credential challenges.
Be sure you know exactly what will be required of each type of expert, so the judge doesnt prevent your expert from testifying.
For example, you might receive an assignment to evaluate a case involving the death of an individual from drain cleaner fumes. Unless this is a routine assignment for you, consult with the attorney or trial team as to specific action you should take.
Remember, never spend money, especially big money (which these cases can quickly require) without clearance from the attorney. Here are a few suggestions regarding what might need to be done in this type of case:
The more sources of information you can think of to assist the trial team, the better. Here are a few other suggestions:
As with any case, its important for the paralegal to analyze and anticipate. This is especially true in a large, complex case. Toxic tort cases sometimes involve many people being affected at once. Your attorney or firm may find itself with a large group of clients to assist. The key to managing a case with multiple plaintiffs is organization. Prepare charts and checklists or an action item list to keep track of what must be done and what has been done.
Consider that youll be managing a complicated case multiplied by the number of plaintiffs. Youll have to set up and find a place for:
Some trial teams might prefer sets of notebooks indexed and tabbed, while others might prefer to load everything into databases.
Before you go to a great deal of trouble getting systems set up, consult with your attorney or the trial team about the best way to manage the case. Just keep in mind whatever system you use must keep you very organized.
Think of anything that might be helpful in developing the case. For example, if there has been toxic exposure over a certain geographical area, you might want to order:
Remember your trial team has to prove exposure and resulting harm, so its very important in these cases to pinpoint exact locations of release and resulting exposure.
It can be helpful to track symptoms on a large map. That often gives the trial team a good idea of a causal connection, especially if you locate clusters of similar symptoms that began at the same time after exposure.
Additionally, a chart for each family or individual can be made showing each symptom, each doctor visit and so forth.
Keep in close touch with trial team members through meetings, action item lists and memos throughout the case. Always memo and copy the file to trial team members on anything for which they need to be made aware.
Prepare an action item list of everything to be done by each member of the trial team. As the case progresses, check off things that have been done and add new items as they come to your attention.
Circulate the list to all trial team members when new items are added. Have trial team members advise you as items are completed so they can be checked off. Dont remove old items from the list. This will allow everyone to see what has already been done and thus eliminate duplications.
Be creative, come up with your own ideas for resources and organization structures that fit your individual caseload. As you gain the expertise needed, you may find yourself specializing in the fascinating area of law known as toxic tort.
KATHLEEN M. READE has more than 20 years experience as a legal assistant and has authored several books and articles for paralegals. Shes an instructor and has written course material for the Legal Assistant Certificate Program at the University of Texas. She is the author of Plaintiffs Personal Injury Handbook and is on the editorial committee of The Texas Paralegal Journal. She works full-time as a litigation assistant.
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