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The Litigation Consulting Report

The Importance of Litigation Graphics in Toxic Tort Litigation

Posted by Tony Klapper on Wed, Dec 28, 2016 @ 01:23 PM

iStock-456090227.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

If anyone thought the era of toxic tort litigation was coming to an end, they were wrong. The Environmental Protection Agency recently announced its priority list of 10 chemicals, including asbestos, that it is considering banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Although it remains an open question how aggressive the Trump administration will be with safety regulations, the reality is that regulatory lists like this, and the inevitable studies that follow, often become a treasure trove of “support” for a plaintiffs’ bar eager to add scientific credibility to their legal claims.

This presents challenges for defense lawyers – especially given the continued currency of quasi-scientific principles or principles that are fine for regulators to rely on, but have no place in today’s courtroom, such as the “precautionary principle.” This is most evident with the mantra of “no safe dose” that asbestos lawyers and some environmental groups trumpet as justifying liability for even the most meager and infrequent of chemical exposures. Of course, toxicology, epidemiology and other scientific disciplines have exposed the fallacy of principles like “no safe dose” (after all, Paracelsus teaches us that “dose makes the poison – more about this later). But the appeal of the seemingly aphoristic “no safe dose” is tough to counter in court when an effective advocate plays to a jury’s fears and is buttressed by governmental pronouncements that, albeit for different reasons, embrace the notion that there is some theoretical, modeled risk from exposure to virtually any chemical.

So the task for the defense bar is how to convince juries to reject these and other fallacious concepts that serve as easy, digestible substitutes for the more complex elements of true causation.

This task requires more than just the hiring of well-credentialed risk assessors, toxicologists, epidemiologists and pathologists, and the deployment of powerful rhetoric. It also requires careful thought on the best way to persuade jurors visually that many of the concepts proposed by plaintiffs in toxic tort cases are indeed spurious. With some creativity, defense lawyers and graphic artists working with them can come up with ways to explain complex scientific concepts, such as exposure pathways and epidemiology, so that jurors can understand them.

A good example is the basic principle of toxicology that “the dose makes the poison.” This doctrine states that the amount of exposure to a substance is what defines the impact that that substance has on the human body. A moderate amount of water is a good thing. Actually consuming too much can kill you (hyperhydration). This concept should be relatively easy for lawyers and graphic artists to explain to juries without becoming overly technical and resorting to scientific mumbo-jumbo that will only confuse. 3-D and 2-D animations can be useful in this type of case, as can the simple bar chart or creative illustrations that analogize concepts like thresholds and total dose. Sometimes the simplest approach is the best.

Too often, when lawyers think about litigation graphics in toxic tort cases, they rely excessively on callouts of phrases in long-forgotten documents or hopelessly complicated charts presenting arcane data. If the message from the plaintiff’s lawyer is very simple – as in “this case is as easy as A, B, and C—Asbestos in Brakes cause Cancer” – the defense needs to respond with a similarly basic approach that will remain in jurors’ minds.

Other articles and free resources related to toxic torts, litigation graphics, teaching science, and environmental litigation from A2L Consulting include:

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Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Science, Environmental Litigation, Toxic Tort, Persuasion

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

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Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case

Posted by Ken Lopez on Wed, Jul 17, 2013 @ 07:07 AM


toxic tort expert witness types scientists case trialby David H. Schwartz

Managing Director, Scientific Support to Counsel,
Innovative Science Solutions

The key to any toxic tort case involving complex scientific concepts is retaining the right experts. However, as any experienced litigator well knows, finding the right expert is not a simple or straightforward matter. Although getting the right lead on a specific individual can be challenging, half the battle is often identifying the right type of expert for your case.

Here are 10 broad expert areas that you should consider for your next toxic tort case. We subdivide each expert area into the relevant sub-disciplines that you should consider.

  1. Toxicology

    In many ways, the toxicologist is the core expert in any toxic tort case. Toxicology is the branch of biology, chemistry, and medicine concerned with the study of the adverse effects of chemicals on living organisms. Like a pharmacologist in a pharmaceutical case, a toxicologist specializes in evaluating adverse health risks posed by chemical exposures.

    There are many kinds of toxicologists that should be considered for any toxic tort case. A clinical or medical toxicologist is a physician with a board certification in toxicology. A reproductive toxicologist is an individual (Ph.D. or MD) who specializes in evaluating adverse health effects of chemical exposures on the fetus or offspring. Some toxicologists have particular expertise in evaluating human exposures, while others specialize in assessing animal exposures. Finally, risk assessment toxicologists focus on quantifying and assessing risks from chemical exposures. Retaining the right kind of toxicologist (or multiple toxicologists) for your toxic tort case is critical.
     
  2. Epidemiology and Statistics

    An epidemiologist specializes in studying exposure-disease relationships, a key factor in achieving a positive outcome in a case. It is rare to see a toxic tort case where there are no published data on the chemicals of interest. A skilled epidemiologist is critical to an effective analysis of those data since he or she can provide relevant testimony to address claims that the data support plaintiffs’ case. Epidemiologists relevant to toxic tort cases can be broadly divided into occupational and environmental specialties, and the appropriate choice is dictated by the type of exposure that is at issue in the case.

    In addition to an epidemiologist, because all scientific data (including epidemiological data) is interpreted using statistical techniques, you will also probably require a statistician. Therefore, whether you are confronting animal experiments, epidemiological studies, or in vitro mechanistic data, you probably need a statistician to help interpret the data and respond to your adversary’s interpretation of the same data. You probably need a biostatistician, but depending on the specific nuances of the case, you may require a statistician who specializes in psychological data. Finally, you may require an expert who specializes in data analytics or informatics.

    Click here to Download a Free Litigation E-Book
     
  3. Industrial Hygiene

    Industrial hygiene is the study of workplace factors that may result in harm or injury to employees or contract workers. You will need an industrial hygienist for any case involving workplace exposures in which you confront allegations that those exposures resulted in injury. Different industrial hygienists specialize in different kinds of assessments. Some individuals focus on airborne exposures, while others focus on assessment of physical agents, such as machinery. If radiation is a particular concern in a case, a certified health physicist may be a valuable expert to pursue.
     
  4. Environmental Science

    Environmental science is the study of environmental factors that could affect human health. These individuals are soil scientists or air and water modeling experts. Scientists in these areas excel at providing hazard assessments from soil exposures or dispersion modeling for airborne chemical releases and water exposures.
     
  5. Medicine

    By definition all toxic tort cases involve alleged injuries to human beings. You will therefore need credentialed physicians as experts in the specific medical areas related to the allegations in the case. These experts will most often testify as to the plaintiff’s specific medical condition, including whether or not the diagnosis is appropriate and whether there is general acceptance that the exposure is linked in some way to the disease state at issue. Quite often, toxic tort cases will require surgical or medical oncologists to testify about cancer issues, but all kinds of other medical specialties often come into play including dermatology, neurology, pulmonology, and cardiology.
     
  6. Clinical Psychology

    When human behavioral issues come into play, it is critical to enlist an expert in psychology. In our experience, the most relevant type of psychologist is a licensed neuropsychologist to deal with allegations of brain damage and neuropsychological deficits. However, there is often a need for a trained clinical psychologist.
     
  7. Scientific Specialty

    Quite often a toxic tort case will involve issues that call for a scientist in a specific discipline. These specific scientific disciplines can include genetics, molecular biology, physiology, psychology, and neuroscience. These experts will often be called upon to provide general education to the judge or jury and can be an extremely important component of making the defense case.
     
  8. Regulatory

    The goal of an expert in this area is to provide testimony that your client complied with the appropriate regulations. Every lawyer who tries toxic tort cases knows that regulatory experts can be among the most difficult to find. Depending on the nature of the case, you may require an expert with specific experience dealing with the EPA, OSHA, or sometimes even the FDA. Most often, you will want someone who was actually employed at one of these regulatory agencies, but sometimes it is sufficient to have an expert who has experience complying with the regulations in some capacity.
     
  9. Physical Sciences

    Many toxic tort cases require the retention of experts in the physical sciences, including hydrogeologists, seismologists, petroleum engineers, materials scientists, and process engineers. The need for these experts and a decision as to which kind is critical is usually tightly aligned to the specific facts and allegations made in the individual case.
     
  10. General Causation

    A general causation expert is an individual who is going to wrap up your case and tell the causation story. This expert is often an epidemiologist or a clinical toxicologist, but in our view, it is helpful to think of him or her in a separate category. This expert should have special knowledge and training that will allow them to synthesize the science in the case and come to an educated conclusion about causation.

    david schwartz innovative science solutions
    David H. Schwartz, Ph.D.
     of Innovative Science Solutions has extensive experience designing programs that critically review the scientific foundation for product development and major mass tort litigation. For 20 years, he has worked with the legal community evaluating product safety and defending products such as welding rods, cellular telephones, breast implants, wound care products, dietary supplements, general healthcare products, chemical exposures (e.g., hydraulic fracturing components, pesticides, and other chemical exposures), and a host of pharmaceutical agents (including antidepressants, dermatologics, anti-malarials, anxiolytics, antipsychotics, and diet drugs). Innovative Science Solutions and A2L Consulting are frequent partners in high-stakes litigation and advocacy.

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    Authors

    KenLopez resized 152

    Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


    tony-klapper-headshot-500x500.jpg 

    Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


    dr laurie kuslansky jury consultant a2l consulting







    Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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