Strategic and Scientific Considerations in Toxic Tort Defense

Richard O. Faulk, Gardere Wynne Sewell LLP

Abstract

The past decade has seen a dramatic increase in suits for injuries resulting from exposure to toxic substances. Since these suits commonly involve multiple defendants, highly technical scientific testimony, unusual legal theories, and many years of alleged exposure, they present a novel form of complex litigation and pose sophisticated problems in many phases of trial preparation. As toxic tort litigation continues to proliferate, an increasing number of practitioners will face the prospect of defending these actions.

This article centers on pretrial considerations, and is intended as an orientation for the practitioner who must defend toxic tort cases without substantial experience in complex injury litigation. Common problems encountered in trial preparation will be examined, and proposals for defensive cooperation will be reviewed. Discovery strategies will be suggested, and common motions will also be discussed and evaluated.

Regarding each pretrial issue, practical considerations of cost control and administrative efficiency will be addressed. With these techniques, meritorious claims may be expeditiously identified, and defensible cases may be economically tried. While such goals are common to the defense of all litigation, they are especially crucial in toxic tort cases, where isolated and traditional defense practices may create dangerous strategic obstacles.