Thursday, March 29, 2018

Sponsored By: Institute of Continuing Legal Education

6 CLE Hours, Including5 Trial Practice Hours

TOXIC AND MASS TORTS

ICLE: State Bar Series

Copyright © 2018 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily reflect the opinions of the Institute of Continuing Legal Education, its officers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring

a competent attorney or other professional. If you require legal or other expert advice, you

should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every effort to ensure that the information

in this book was correct at press time, the publisher and faculty do not assume and hereby

disclaim any liability to any party for any loss, damage, or disruption caused by errors or

omissions, whether such errors or omissions result from negligence, accident, or any other

cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are afforded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfill their responsibilities to the legal profession, the courts and the public.

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Who are we?

SOLACE is a program of the State

Bar of Georgia designed to assist

those in the legal community who

have experienced some significant,

potentially life-changing event in their

lives. SOLACE is voluntary, simple and

straightforward. SOLACE does not

solicit monetary contributions but

accepts assistance or donations in kind.

Contact SOLACE@gabar.org for help.

HOW CAN WE HELP YOU?

How does SOLACE work?

If you or someone in the legal

community is in need of help, simply

email SOLACE@gabar.org. Those emails

are then reviewed by the SOLACE

Committee. If the need fits within the

parameters of the program, an email

with the pertinent information is sent

to members of the State Bar.

What needs are addressed?

Needs addressed by the SOLACE

program can range from unique medical

conditions requiring specialized referrals

to a fire loss requiring help with clothing,

food or housing. Some other examples

of assistance include gift cards, food,

meals, a rare blood type donation,

assistance with transportation in a

medical crisis or building a wheelchair

ramp at a residence.

A solo practitioner’s

quadriplegic wife needed

rehabilitation, and members

of the Bar helped navigate

discussions with their

insurance company to obtain

the rehabilitation she required.

A Louisiana lawyer was in need

of a CPAP machine, but didn’t

have insurance or the means

to purchase one. Multiple

members offered to help.

A Bar member was dealing

with a serious illness and in

the midst of brain surgery,

her mortgage company

scheduled a foreclosure on

her home. Several members

of the Bar were able to

negotiate with the mortgage

company and avoided the

pending foreclosure.

Working with the South

Carolina Bar, a former

paralegal’s son was flown

from Cyprus to Atlanta

(and then to South Carolina)

for cancer treatment.

Members of the Georgia and

South Carolina bars worked

together to get Gabriel and

his family home from their

long-term mission work.

TESTIMONIALS

In each of the Georgia SOLACE requests made to date, Bar members have graciously stepped up and used their resources to help find solutions for those in need.

The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers,

court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.

Contact SOLACE@gabar.org for help.

vFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and efforts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneficial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a different legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeffrey R. Davis Executive Director, State Bar of Georgia

Tangela S. King Director, ICLE

Rebecca A. Hall Associate Director, ICLE

Presiding:Douglas A. Henderson, Program Chair, Troutman Sanders LLP, Atlanta, GA

THURSDAY, MARCH 29, 2018

7:45 REGISTRATION AND CONTINENTAL BREAKFAST

(All attendees must check in upon arrival. A jacket or sweater is recommended.)

8:00 WELCOME AND PROGRAM OVERVIEW

Douglas A. Henderson, Program Chair, Troutman Sanders LLP, Atlanta, GA

8:15 RECOVERING “DAMAGES” FOR MEDICAL MONITORING?

Carmen R. Toledo, King & Spalding LLP, Atlanta, GA

9:00 MASS TORTS PROCEDURE—JURISDICTION, REMAND, MDL AND RELATED

DEVELOPMENTS

Halli D. Cohn, Troutman Sanders LLP, Atlanta, GA

9:45 BREAK

10:00 TRIAL THEMES AND TACTICS—COMMUNICATING COMPLEXITY

Plaintiff Perspective: Jesse A. Davis, Davis Adams LLC, Decatur, GA Defense Perspective: Victoria D. Lockard, Greenberg Traurig LLP, Atlanta, GA

11:15 LUNCH

11:45 OPIOID LITIGATION CLAIMS AND DEFENSES—THE NEWEST TOBACCO?

J. Nixon Daniel, III, Beggs & Lane RRLP, Pensacola, FL

12:45 PRODUCT WARNINGS, SAFETY DATA SHEETS, AND SAFETY SCIENCE IN

LITIGATION

Eric Boelhouwer, PhD, CSP, CPE, Dorris & Associates, Atlanta, GA

1:30 BREAK

1:45 CAUSATION IN CHEMICAL EXPOSURE CASES—LAW AND SCIENCE

Justin T. Wong, Troutman Sanders LLP, Atlanta, GA

2:30 DEPOSITION STRATEGIES—REPTILE TACTICS AND LEGAL OUTCOMES

Lucille W. “Lucy” Andres, Evert Weathersby Houff, Atlanta, GA

3:15 ADJOURN

viiAGENDA

ixTABLE OF CONTENTS

PAGE CHAPTER

Foreword .............................................................................................................................................................. v

Agenda ............................................................................................................................................................... vii

Recovering “Damages” For Medical Monitoring?............................................................................. 1-19 1 Carmen R. Toledo

Mass Torts Procedure—Jurisdiction, Remand, MDL And Related Developments............... 1-32 2 Halli D. Cohn

Trial Themes And Tactics—Communicating Complexity.................................................. NO MATERIALS 3 Jesse A. Davis Victoria D. Lockard

Opioid Litigation Claims And Defenses—The Newest Tobacco?............................................... 1-19 4 J. Nixon Daniel, III

Product Warnings, Safety Data Sheets, And Safety Science In Litigation................... NO MATERIALS 5 Eric Boelhouwer, PhD, CSP, CPE

Causation In Chemical Exposure Cases—Law And Science......................................................... 1-15 6 Justin T. Wong

Deposition Strategies—Reptile Tactics And Legal Outcomes....................................................... 1-4 7 Lucille W. “Lucy” Andres

Appendix:ICLE Board ............................................................................................................................................................ 1 Georgia Mandatory ICLE Sheet .................................................................................................................... 2

Recovering “Damages” For Medical Monitoring?

Presented By:

Carmen R. ToledoKing & Spalding LLPAtlanta, GA

STATE BAR SERIES

Recovering “Damages” for Medical Monitoring?

Where Plaintiffs seek expenses of future medical testing to monitor for diseases caused by alleged exposure to hazardous substances

Not controversial: Courts generally allow recovery of future medical monitoring as an element of damages for a present physical injury caused by a defendant’s tortious conductHarder question: Where there is an alleged exposure but no physical injury or symptoms, and plaintiffs claim that the exposure puts them at an increased risk of future injury

What are Medical Monitoring Claims?

“Medical monitoring is one of a growing number of non-traditional torts that have developed in the common law to compensate plaintiffs who have been exposed to toxic substances.”

In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 849 (3d Cir. 1990) (emphasis added)

Non-Traditional Claim

May involve any type of exposureOccupationalResidential (e.g., air/vapor intrusion, water, soil)From a product such as a pharmaceutical or consumer product

Context in Which Medical Monitoring Claims Arise

• A separate cause of action

• An element of damages in connection with a standard negligence/nuisance claim

• Part of released claims in class settlements

May Be Presented As

• Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984)

Vietnamese orphans in aviation accidentRequired monitoring for neurological disorders

• Askey v. Occidental Chem. Corp., 477 N.Y.S. 2d 242 (N.Y. App. Div. 1984)

Neighbors of Love Canal landfill• Ayers v. T’ship of Jackson, 525 A.2d 287 (N.J. 1987)

Neighbors of landfill that caused groundwater contamination

Early Cases – 1980’s

• From 1984-1997, several different courts recognized claims for medical monitoring

Potter v. Firestone Tire & Rubber Co., 25 Cal. Rptr. 2d 550 (Cal. 1993)Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993)

• Allowed recovery of damages for the cost of periodic medical examinations necessitated by exposure to a chemical or substance

Recovery for the quantifiable monetary cost of periodic monitoring procedures

• Even in the absence of symptoms or a traditional, manifest physical injury

• Clear trend then appeared to be to recognize the claim.

Early Trend

Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997)• Claim for medical monitoring under FELA rejected• The Court evaluated the state of the law and weighed

public policy factors for and against recovery

U.S. Supreme Court Weighs In

• Several additional states allowed recovery for medical monitoring

Redland Soccer Club v. Dep’t of Army, 696 A.2d 137 (Pa. 1997)Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999)Wilson v. Brush Wellman, Inc., 817 N.E.2d 59 (Ohio 2004)Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (Mass. 2009)ExxonMobil Corp. v. Albright, 71 A.3d 30 (Md. 2013)

Post-Buckley

• Other states, however, have rejected medical monitoringHinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001)Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001)Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849 (Ky. 2002)AlliedSignal Inc. v. Ott, 785 N.E.2d 1068 (Ind. 2003)Henry v. The Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005)Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1 (Miss. 2007)Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439 (N.Y. 2013)

Post-Buckley

• The Supreme Court has not yet addressed the question• The Court of Appeals affirmed summary judgment on the issue in

Boyd v. Orkin Exterminating Co., 191 Ga. App. 38, 381 S.E.2d 295 (1989), rev’d on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 446 S.E.2d 741 (1994)

A family allegedly exposed to pesticides from spraying of their houseNeither the “presence” of the chemical in the minor plaintiffs’ blood nor the need for future medical monitoring constituted an actionable injury“Absent any indication that the presence of these metabolites had caused or would eventually cause actual disease, pain, or impairment of some kind, [the expert’s] testimony must be considered insufficient to support an award of actual damages in any amount.”

Medical Monitoring in Georgia - State

• Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290 (N.D. Ga. 2005), aff’d, 230 F. App’x 878 (11th Cir. 2007)

Employees of the Lockheed Martin facility in Marietta alleged exposure to beryllium dust The district court dismissed the medical monitoring claim: “While a remedy permitting creation of medical monitoring funds has garnered support in several jurisdictions, no Georgia court has ever indicated an inclination to recognize such a remedy.” The Eleventh Circuit affirmed: “Plaintiffs have failed to point us to any Georgia authority that allows recovery of medical monitoring costs in the absence of a current physical injury, and [Boyd] suggests that Georgia would not recognize such a claim.”

Medical Monitoring in Georgia - Federal

1. “Significant” exposure, beyond that of the general population or normal background levels

2. To a proven hazardous substance3. Through the negligent actions of the defendant4. Proximately causing significantly increased risk of contracting a

serious latent disease as compared to the general population5. Making it reasonably necessary that plaintiff undergo periodic

diagnostic medical examinations different from what would be prescribed in the absence of the exposure

6. Monitoring and testing procedures exist that make the early detection and treatment of the disease possible and beneficial

Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999)

Common Elements of the Claim Where Recognized

• Fundamentally different claims• Claims for increased risk seek damages for the

increased risk of contracting a diseaseCourts consider it speculativeFocus on the probability of contracting the diseaseProblem of splitting the cause of action

• Medical monitoring seeks recovery of the cost of testing

But medical monitoring claim requires proof of increased risk

Medical Monitoring vs. Increased Risk

Advances in analytical chemistry / technologyChemicals can now be detected in the environment and in the human body at infinitesimal levels never before imaginable

“Recent discoveries of previously undetected but potentially hazardous chemical compounds in environmental media have focused attention …”

“Increased identification … is due in great part to the development of new analytical methods, as well as increased field testing.”

Scientific Issue: Proving Exposure

Have the plaintiffs had an elevated exposure?What is the background level in the environment?

Scientific Issue: “Significant” Exposure

CDC now monitoring and issuing reports regarding the chemicals in people’s bloodstreams

“[T]he concentration of the chemical in people that provides the best exposure information to evaluate the potential for adverse health effects.”

Improvements in Biomonitoring

What is the background level in people, if measuring that way?

Widespread presence of many substances in the blood or urineCDC reports general population levels for 308 chemicals – Nat’l Report on Human Exposure to Environmental ChemicalsNew chemicals added every year

Scientific Issue: Exposure Above General Population

Arsenic Measurements

Exposure (or mere presence of a chemical) does not equal harm

“The presence of an environmental chemical in people’s blood or urine does not mean that it will cause effects or disease. The toxicity of a chemical is related to its dose or concentration, in addition to a person’s individual susceptibility. Small amounts may be of no health consequence, whereas larger amounts may cause adverse health effects.”CDC, Fourth Nat’l Rpt. On Human Exposure to Environmental Chemicals, located at https://www.cdc.gov/exposurereport/pdf/FourthReport_ExecutiveSummary.pdf

To a “Proven Hazardous Substance”

• Is the exposure sufficient to cause adverse effects in the future?

• Can plaintiffs establish general causation, i.e., that exposures like theirs, at the level in question, have been demonstrated to cause disease?

• Can they rule out alternative causes of the increased risk (smoking, family history)?

Legal/Scientific Issue: Proximate Cause

Is the risk sufficiently increased to actually cause disease in the future? Must evaluate epidemiologic and toxicological evidence.

“The problem is that, as with the cases involving emotional distress and economic loss, the scope of liability resulting from a mere increase in risk that falls short of probability is virtually limitless. As many courts and scholars addressing the subject have noted, each and every person in contemporary, industrialized society faces significantly increased risks of future harm by merely getting up in the morning and breathing polluted air, drinking coffee, driving in a motor vehicle, eating certain prepared foods, taking over-the-counter and prescription medications, and the like.”

Lowe v. Philip Morris USA, 142 P.3d 1079, 1091 (Or. Ct. App. 2006).

Significantly Increased Risk

“All substances are poisons; there is none which is not a poison. The right dose differentiates a poison from a remedy.”

- Paracelsus (1493-1541)

Scientific Issue: Increased Risk

AspirinOne will protect against heart diseaseTwo cure a headacheA whole bottle is fatal

WaterEssential for lifeIn excess, can kill

• Monitoring is for “latent disease”• Generally refers to cancer, which can take 10-40

years to developDiagnostic testing is generally available for only a limited number of types of cancer

“Reasonably Necessary” Diagnostic Examinations

• Some level of monitoring is recommended for the entire population – based on age, sex, demographics, etc.

Annual check-upsBlood testsMammogramsProstate exam

• Medical Monitoring is something beyond the generally accepted background tests

Distinguishing Medical Monitoring From Routine Medical Care

g

• Common conception that all medical monitoring is positive.

• However, a risk/benefit analysis must be made when considering any monitoring program:

Certain testing is invasive and potentially harmfulCertain testing may yield only marginal detection or treatment benefitsPotential for false positives and unnecessary treatmentPotential for false negatives which prevent necessary treatment

Early Detection Is Beneficial

Early Detection Is Not Always Beneficial

• Plaintiffs often seek lump sum monetary payments rather than injunctive relief

No guarantee that plaintiffs will get the recommended monitoringExperience shows that parties prefer cash to medical testing

• Even if injunctive relief is awarded, plaintiffs cannot be compelled to get tested

Practical Issue: Any Actual Benefit?

• Meeting the elements of the claim is not easyMedical monitoring is a “special compensatory remedy” that is “not easily invoked.” Theer v. Philip Carey Co., 628 A.2d 724 (N.J. 1993).Motions to dismiss or for summary judgment granted when plaintiffs cannot meet their burden of proof. See, e.g., Sheridan v. NGK N. Am., Inc., 2007 WL 3429205 (E.D. Pa. Nov. 15, 2007)

• But see Sinclair v. Merck & Co., Inc., 913 A.2d 832 (N.J. App. Div. 2007)

Limitations on the Claim

• Majority rule in existing tort case lawPreviously held proof of injury required in negligence cases“Possibility of a future injury” not sufficient to maintain a tort claim

• Potential floodgate of trivial litigation• Delay and decreased remedies for those with

manifested illnesses

Policy Considerations

• Clear Trend & Majority Rule: No Certification• Requested relief

Injunctive, Rule 23(b)(2)Damages, Rule 23(b)(3)

• Individual issues generally found to predominateSignificance and extent of exposureRelative increase in the chance of onset of diseaseCausation; potential alternative causes of diseaseWhether plaintiff will require a course of medical monitoring independent of other medical care otherwise requiredFacts supporting a statute of limitations defense

• Choice of law in nationwide classes

Class Certification Issues

• Amchem Products v. Windsor, 521 U.S. 591 (1997)Plaintiffs sought certification of a settlement-only class related to their medical monitoring claim stemming from their exposure to asbestosHeld: certification pursuant to Fed. R. Civ. P. 23(b)(3) was inappropriate because individual issues predominate

Leading Class Certification Case

• Pharmaceutical productsIn re Baycol, 218 F.R.D. 197 (D. Minn. 2003)In re Fosamax Prods. Liab. Litig., 2008 WL 58890 (S.D.N.Y. Jan. 3, 2008)

• Environmental exposuresLockheed Martin Corp. v. Superior Court, 63 P.3d 913 (Cal. 2003)Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007)Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011)

• Occupational exposuresGoasdone v. Amer. Cyanamid Corp., 354 N.J. Super. 519 (2002)

Other Cases Denying Certification

A medical testing program through which plaintiffs exposed to hazardous substances may obtain physical examinations or testing to diagnose or detect early onset of diseaseTypically incorporate diagnostic testing such as

X-raysCT scansMRIsBlood testingUrine screening

What Is a Medical Monitoring Program?

• Trial court appoints a qualified plan administrator to manage the plan and periodically report to the court regarding progress of the plan

• Court appoints a panel of medical/scientific advisors to assist in development of the medical monitoring protocol

• The plan administrator and/or the panel designate a group of physicians, laboratories and other medical professionals to perform the testing protocol

• Length of the plan depends on latency period • Plan administrator establishes a notification procedure

Direct mailings, website, publication

Program Administration

• Plan gets financed by the defendant; the court may appoint a financial panel to budget and plan

• The plan administrator and panel(s) implement procedures to submit reports and findings

• The plan administrator provides periodic reports to the parties and the court

May indicate additional funding is required• The plan administrator and medical panel

maintains all records for additional studies• Example: Perrine Medical Monitoring plan.

Program Administration (cont’d)

• Most states have not recognized medical monitoring claims without present physical injuries

Supreme Courts in 10 states have expressly rejected medical monitoringNine state supreme courts have recognized the claim (CA, MD, MA, MO, NJ, OH, PA, UT, WV)Predictions by federal courts and rulings by lower courts have not always been upheldThe majority of states have not addressed the issue or have divided lawLouisiana rejected medical monitoring claims by legislation

• Federal common law rejected it - Buckley

Summary – State of the Law

• Medical monitoring claims require courts to make sophisticated scientific judgments about exposure, risk, causation and the risk/benefit tradeoffs of medical procedures to be done on large groups

• Although it is still considered a non-traditional tort, a good number of states and courts have ruled that recovery for medical monitoring is available, either as a form of damages or as a separate cause of action

• Public policy considerations generally weigh in favor of not allowing the creation of this cause of action

• New claims constantly being assertedCosmetics – lead in lipsticksMicrowave popcornToys – lead in toysEnvironmental exposures

Takeaway Messages

Mass Torts Procedure—Jurisdiction, Remand, MDL And Related Developments

Presented By:

Halli D. CohnTroutman Sanders LLPAtlanta, GA

STATE BAR SERIES

Trial Themes And Tactics—Communicating Complexity

Presented By:

Plaintiff Perspective:Jesse A. DavisDavis Adams LLCDecatur, GA

Defense Perspective:Victoria D. LockardGreenberg Traurig LLPAtlanta, GA

STATE BAR SERIES

Opioid Litigation Claims And Defenses—The Newest Tobacco?

Presented By:

J. Nixon Daniel, IIIBeggs & Lane RRLPPensacola, FL

STATE BAR SERIES

OPIOID LITIGATION CLAIMS AND DEFENSES:THE NEWEST TOBACCO?

J. NIXON DANIEL, III

BEGGS & LANE, RLLP

PENSACOLA, FLORIDA

OPIOID LITIGATION CLAIMS AND DEFENSES:THE NEWEST TOBACCO?

TABLE OF CONTENTS

OPIOID LITIGATION CLAIMS AND DEFENSES:THE NEWEST TOBACCO?

See Journal

of Psychoactive DrugsThe New York TimesThe New York Times

The New York Times The New York Times

Resolving the Crisis: The Litigation and its Parties

I. Defendants

USA Today

a. Pharmaceutical Defendants: The Manufacturers

b. Distributors

c. Pharmacies

II. Plaintiffs

a. Governmental Entities

Under the Counter: The Diversion and

Abuse of Controlled Prescription Drugs in the U.S.

b. Healthcare Providers

c. Native American Tribes

The New York TimesId.

Venue: The Multidistrict Litigation Versus State Courts

See, In re: National Prescription Opiate Litigation

Legal Positions

See, In re: National Prescription Opiate Litigation

In re: National Prescription Opiate Litigation

I. Claims

a. Common Law Public Nuisance

b. Negligence

c. Fraud

d. Civil Conspiracy

e. Unfair and Deceptive Trade Practices Acts

f. Unjust Enrichment

II. Defenses

Conclusion

The Washington Post

Product Warnings, Safety Data Sheets, AndSafety Science In Litigation

Presented By:

Eric Boelhouwer, PhD, CSP, CPEDorris & AssociatesAtlanta, GA

STATE BAR SERIES

Causation In Chemical Exposure Cases—Law And Science

Presented By:

Justin T. WongTroutman Sanders LLPAtlanta, GA

STATE BAR SERIES

Does mold cause sinus infections?Does wearing PERC-cleaned clothes cause Parkinson’s disease?

Did smoking cause Plaintiff’scancer?Did PFOAs cause Plaintiff’sdisease?

Deposition Strategies—Reptile Tactics And Legal Outcomes

Presented By:

Lucille W. “Lucy” AndresEvert Weathersby HouffAtlanta, GA

STATE BAR SERIES

DEPOSITION STRATEGIES—REPTILE TACTICS AND LEGAL OUTCOMES

Lucy Andres Evert Weathersby Houff

Atlanta, Georgia

AGENDA 1. Introduction 2. Origination of the Reptile Theory 3. The Rules 4. How is Reptile Used

a. Underlying Basis of Fight or Flight b. Why the Reptile Works

5. Snakes in your Corporate Representative Deposition a. Recognizing Reptile Questions b. Beating the Reptile

6. Conclusion

Appendix A: Response Strategy to Sample Reptile Corporate Representative Deposition Questions

DEPOSITION STRATEGIES—REPTILE TACTICS AND LEGAL OUTCOMES

Lucy Andres Evert Weathersby Houff

Atlanta, Georgia

Appendix A: Response Strategy for Sample Reptile Corporate Representative Deposition

Questions Response Strategy to Reptile Questions Corporate Representative witnesses should become familiar with the Reptile and how to avoid falling into the snake pit. The following sample responses are key to defeating the Reptile during Corporate Representative depositions: 1. That depends.

2. It would depend on the facts/circumstances.

3. There are too many possible fact scenarios to give a definitive answer to an

abstract question.

4. That is such a broad question and it’s impossible to provide a definitive answer.

5. That’s a loaded question and it’s impossible to provide a definitive answer.

6. There are too many unidentified variables to answer such a general question.

7. It’s a balancing act.

8. Sometimes that can be true but not always.

9. Sometimes that can be the appropriate response but not in every situation.

10. I do not agree with that.

DEPOSITION STRATEGIES—REPTILE TACTICS AND LEGAL OUTCOMES

Lucy Andres Evert Weathersby Houff

Atlanta, Georgia

Sample Reptile Corporate Representative Deposition Questions

1. Do you believe [company] is a good company?

2. Do you believe [company] is an ethical company?

3. Does [company] believe in safety?

4. Would you agree that safety is more important than profits?

5. Do you believe products manufactured by [company] should be safe?

6. Do you believe products manufactured by [company] are safe?

7. Would you agree that if a product causes an injury then it’s not a safe product?

8. Do you agree that if [company] can manufacture its products in a safer manner that it

should?

9. Is a manufacturer allowed to needlessly endanger the consumer?

10. Should a manufacturer know about the potential hazards caused by its products?

11. Do you agree that a manufacturer assumes the responsibility for the safety of

consumers using its products?

12. Does [company] agree that a manufacturer must make products free from defects?

13. Do you agree that a manufacturer should warn consumers of known dangers associated

with its products?

14. Do you agree it is the duty of a manufacturer to adequately warn of potential hazards?

DEPOSITION STRATEGIES—REPTILE TACTICS AND LEGAL OUTCOMES

Lucy Andres Evert Weathersby Houff

Atlanta, Georgia

15. Do you agree that a manufacturer has a duty to continuously improve the safety of

its products?

16. Do you agree that if a manufacturer makes a product that is defective and someone is

injured because of that defect, then the manufacturer is responsible for the

injuries/losses caused?

17. If a manufacturer has met all applicable standards and regulations, is that manufacturer

allowed to endanger consumers and/or end users of its products?

18. Do you agree that a manufacturer should communicate to consumers the potential

hazards associated with its products?

19. Is a manufacturer allowed to ignore a known danger associated with its products?

20. Is any risk of serious injury or death unreasonable if there is a means to reduce

or eliminate the risk?

APPENDIX

Appendix

ICLE BOARD

Name Position Term Expires

Carol V. Clark Member 2019

Harold T. Daniel, Jr. Member 2019

Laverne Lewis Gaskins Member 2018

Allegra J. Lawrence Member 2019

C. James McCallar, Jr. Member 2018

Jennifer Campbell Mock Member 2020

Patrick T. O’Connor Member 2018

Kenneth L. Shigley Member 2020

A. James Elliott Emory University 2019

Buddy M. Mears John Marshall 2019

Dean Daisy Hurst Floyd Mercer University 2019

Cassady Vaughn Brewer Georgia State University 2019

Carol Ellis Morgan University of Georgia 2019

Hon. Harold David Melton Liaison 2018

Jeffrey Reese Davis Staff Liaison 2018

Tangela Sarita King Staff Liaison 2018

GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year.

A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND

THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Official State Bar Membership computer records for recording on the attendee’s Bar record. Attendees

at ICLE programs need do nothing more as their attendance will be recorded in their Bar

record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia.

If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688