For defendants involved in toxic tort litigation, one of the most critical aspects of creating a solid defense strategy is challenging the plaintiff’s exposure theory. By closely scrutinizing the assumptions, methodology, and evidence on which these theories rely, defendants can expose flaws in the plaintiff’s claim and narrow (or even eliminate) liability. Such analysis can help build a compelling case that calls into question whether the alleged exposure actually caused the plaintiff’s harm, or occurred at all.
The following are several strategies defendants can implement to challenge a plaintiff’s exposure theory:
1. Questioning the Scientific Methodology
Courts require that expert testimony regarding exposure must be reliable, relevant, and scientifically sound. The defense may raise questions regarding the scientific methodology the plaintiff relies upon by:
- Identifying inconsistent or incomplete data on chemical concentrations
- Highlighting overreliance on anecdotal evidence
- Noting the use of studies that do not apply to the plaintiff’s specific circumstances
- Scrutinizing studies and models used by the plaintiff’s experts
A defendant may also question the qualifications or potential bias of the plaintiff’s experts and file motions in court to exclude unreliable testimony.
2. Highlighting Gaps in the Plaintiff’s Evidence
Plaintiffs are required to demonstrate actual exposure, not simply the presence of a toxic substance. Defendants may emphasize the lack of records showing the plaintiff’s presence in the allegedly affected area. They may also point to inconsistencies in the plaintiff’s account of how exposure occurred, noting any protective measures in place to prevent it.
3. Demonstrating Insufficient Dose
Defense strategies often focus on showing that the plaintiff’s exposure level was below the established thresholds for sustaining any harm or that the alleged exposure was negligible. This may include challenging the dose calculation and questioning the assumptions used to estimate exposure. Scientific and regulatory benchmarks can provide objective standards to demonstrate that the alleged exposure was insufficient to cause the claimed injuries.
4. Challenging Causation
Even if exposure occurred, the plaintiff must be able to link it to a specific injury or illness. Defense strategies often focus on identifying alternative explanations for the plaintiff’s condition, questioning the scientific reliability of causal claims, and highlighting inconsistencies between the timing or nature of the alleged exposure and the observed health effects. Expert testimony, the plaintiff’s medical records, and epidemiological data can all be used to cast doubt on whether the alleged exposure actually caused the claimed harm.
5. Identifying Alternative Causes
By presenting credible evidence of alternative causes, the defense can weaken the plaintiff’s causation argument and show that the alleged exposure is not the reason for the claimed injury. Other factors that could have caused a plaintiff’s harm may include medical conditions, lifestyle choices, occupational exposure unrelated to the defendant, and environmental factors. Expert analysis, medical records, and epidemiological studies can play a key role in substantiating alternative explanations.
6. Leveraging Regulatory Compliance
Leveraging regulatory compliance can be a powerful strategy in defending against a toxic tort claim. Documentation that shows adherence to OSHA, EPA, and other federal and state safety standards can establish that the defendant took reasonable steps to control exposure and protect workers or the public. Evidence of the following can help prove that any alleged exposure was within legal and scientifically accepted limits:
- Inspections and audit reports
- Safety protocols and training records
- Monitoring data
- Personal protective equipment logs
- Maintenance and equipment calibration records
- Environmental impact and compliance reports
- Internal safety audits and corrective action reports
Demonstrating regulatory compliance not only supports a comprehensive defense but also reinforces the defendant’s commitment to safety and responsible operations.
Contact an Experienced Toxic Tort Attorney
Toxic tort litigation is complex, and it is vital for defendants to work with an attorney who understands how to challenge exposure theories and develop a strategic defense. Offering aggressive defense and knowledgeable counsel, Cosmich is committed to protecting our clients’ companies and their bottom lines. With coast-to-coast offices, our attorneys are equipped to handle matters involving multiple claimants across jurisdictions. Contact us to schedule a consultation.