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Toxic Tort Litigation

Davis Graham & Stubbs LLP is known for its expertise in and successful defense of environmental toxic tort actions involving personal injury, medical monitoring and/or property damage claims in Colorado state and federal courts as well as state and federal courts in other western jurisdictions. These cases typically involve claims alleging common law torts, unjust enrichment, and violations of federal and state environmental statutes. Some also consist of claims under citizen suit provisions in environmental statutes. These cases include class actions, cases in which class certification was denied, cases in which bellwether plaintiff claims were tried, and individual plaintiff cases.

Recently, as public debate focuses on hydraulic fracturing or “fracking” of oil and gas wells, we have begun to defend oil and gas operators and oil and gas service companies in toxic tort cases based on those activities. The claims and many of the scientific issues in the hydraulic fracturing cases are the same as those that we have litigated and tried for many years in defense of manufacturers in numerous SIC codes, mining companies, railroads, pipeline companies, and oil and gas companies, among others.

Our lawyers have a wealth of knowledge and experience in litigating claims pertaining to claimed human exposures to chemicals via ingestion of water from public or private water supplies, dermal contact with water, dust or soils, and inhalation of dust and vapors including indoor air contamination from vapor intrusion. Substances at issue in one or more of our cases include chlorinated solvents (PCE, TCE, TCA, and DCE), asbestos, nitrates, lead, arsenic and other metals, uranium and other radioactive elements, and/or petroleum hydrocarbons. Many of these cases concern property damage claims based on contamination of ground water, soil, indoor air, or structures.

Recently, we successfully defended more than 20 toxic tort chlorinated solvent personal injury cases filed in federal and state courts in Colorado against a Fortune 100 company.

We have tried these cases to juries and judges. In two of the jury trials, the juries returned verdicts of no loss of property value. One of these jury trials was a class action and the other was a trial of bellwether claims for a group of more than 100 plaintiffs.

In trying and preparing these cases for trial, both trial and environmental lawyers typically work as teams. Several of the lawyers working in this area draw upon their prior training in the sciences and economics as well as the experience they have gained by working closely with hydrogeologists, environmental engineers, chemists, economists, appraisers, experts in standard of care for various industries, toxicologists, epidemiologists, and physicians with a wide range of specialties. This foundation assists these lawyers in simplifying complex scientific, economic and statistical concepts for a lay fact-finder.

Case Study: Toxic Tort Personal Injury Claim

Recently, DGS represented a large manufacturing company in two toxic tort personal injury cases, one in federal court and one in state court. The plaintiffs in each case based their claims on a historic release of chlorinated solvents to groundwater. One plaintiff asserted he had liver cancer due to exposure to chlorinated solvents in drinking water provided by a municipal system. The second asserted he had bladder cancer and neurological impairment due to exposure via an indoor air pathway, i.e. chlorinated solvent vapors migrating from groundwater into his house.

In each case, causation was, as a practical matter, the dispositive issue. If the plaintiff could not carry his burden of proof on causation, his claim would fail. If, however, the plaintiff carried his burden, the defendant company would need to evaluate seriously its litigation risk. DGS was therefore able to convince the judge in each case to limit initial pretrial proceedings to causation, in particular (i) can exposure to the solvent at the levels claimed cause the disease at issue? and (ii) if so, was this plaintiff’s disease caused by his exposure? Each judge agreed that causation was the dispositive question. A relatively short schedule for disclosures, discovery, and briefing on causation questions was set in each case.

With the help of experts in hydrogeology, toxicology, and epidemiology in each case, and an expert on indoor air in the second case, DGS submitted motions in each case which sought to exclude the plaintiffs’ experts on Daubert grounds and sought entry of summary judgment for the defendant company. In each case, shortly before their response briefs were due, the plaintiffs voluntarily dismissed their claims with prejudice and without any settlement payment from the defendant company.

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