DBTC Law Firm

Serious Illness Or Death After Being in a Toxic Environment Does Not Necessarily A Legal Claim Make

The recent case of Richardson vs. Union Pacific Railroad, 2011 Ark. App. 562, followed the developing Arkansas law that 1) proving the existence of known toxic substances brought into an area by the defendant, 2) which substances are known to cause sickness or death, 3) followed by the sickness or death of a claimant who was for an extended period in that area, is insufficient to make a claim for loss against that defendant. In this particular case, the lawsuit of a cancer-stricken railway employee, who had been exposed over a long period of time to workplace diesel fumes, creosote and pesticides, was dismissed as having an insufficient evidentiary basis.  The Court required specific linkage, through the use of expert testimony, to confirm both the actual level of exposure and a nexus between that particular exposure and the causation of the disease. Though experts were presented by the plaintiff, the expert testimony did not meet the standard required in Arkansas courts. Accordingly, what might appear to the layman as an obvious claim of liability for toxic poisoning must meet very stringent expert proof requirements in the Arkansas courts.

In addressing the admissibility of plaintiff’s proffered expert testimony, the Court first discussed the two-prong test a toxic-tort plaintiff must adduce as to causation: general and specific causation.  General causation addresses only whether a specific agent – in this case, diesel fumes and creosote, among others – can cause a particular illness.  Specific causation, on the other hand, requires a showing that the agent did, in fact, cause the particular plaintiff’s illness.  It was in the plaintiff’s attempt at showing specific causation that the expert testimony fell short, ultimately leading to the dismissal of the plaintiff’s claim.

The plaintiff’s claim was supported by the opinions of two highly credentialed expert witnesses.  One, an industrial hygiene expert, opined that the plaintiff was excessively exposed to diesel exhaust, herbicides and other substances during his employment at the railroad, relying upon anecdotal testimony and the result of the railroad’s carbon monoxide testing performed in July 1986.  The other expert testified that plaintiff’s exposure to diesel exhaust fumes, creosotes, herbicides and pesticides actually caused his cancer, citing to many medical journal articles in support of his opinions.  Simply, the Court found that these expert opinions lacked reliable analysis, failed to discuss the plaintiff’s actual exposure levels, and were not the result of a valid, reliable methodology.  Their opinions were excluded from being introduced at trial.

On appeal to the Arkansas Supreme Court, the plaintiff argued that it was error to require the plaintiff to prove, with a precise “parts-per-million measurement,” his exact exposure to toxic chemicals which he claims to have caused his cancer.  While not going so far as to require testimony describing with precise, mathematical proof the degree of exposure to toxic chemicals experienced by a plaintiff, the Supreme Court requires proof based upon reliable methodology that the plaintiff was exposed to levels of the harmful agent that is known to cause the kind of harm that the plaintiff claims to have suffered.  To that end, an expert’s causation testimony must demonstrate that the defendant’s emission probably – not possibly –  caused a particular plaintiff the kind of harm of which he or she complains.  Because the plaintiff produced no reliable evidence as to his actual exposure to diesel exhaust or benzene, his claim failed.

As a whole, the Richardson vs. Union Pacific Railroad case highlights Arkansas’s strict standards governing a plaintiff’s potential claim for damages based upon long-term exposure to a toxic tort.  While a showing that the toxic substance can cause the ailments complained of meets the general causation element of his claim, a plaintiff must meet the much higher burden of establishing specific causation by demonstrating that, under reliable scientific methodologies, the level of toxic agent to which the plaintiff was exposed often causes the general public similar injuries as those suffered by plaintiff and, specifically, that the toxic agent was the specific cause of plaintiff’s damages.

Accordingly, a very high and specific level of scientific proof must be adduced by a plaintiff to proceed in Arkansas courts on a toxic tort claim.  While finding an expert who is able to meet these highly technical and particularized standards is both difficult and expensive, it is nonetheless essential to a plaintiff who wishes to proceed and file a lawsuit on such a claim.

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