Legal Issues

The following items may be of interest to chemically sensitive people grappling with legal issues. The Chemical Sensitivity Foundation cannot be in the position of endorsing either the website or the book but wishes to make this information available to you.

1. www.mcslegalhelp.com
   
   
2. Chemical Injury and the Courts: A Litigation Guide for Clients and Their Attorneys
   Linda Price King
   
   

The following excerpt from an article titled "Multiple Chemical Sensitivities Under Siege," which was published in 2001 by Chemical Sensitivity Foundation Board member, Ann McCampbell, M.D., in The Townsend Letter for Doctors and Patients, offers an excellent explanation of some of the legal issues surrounding MCS lawsuits. The relevant footnotes follow the excerpt.

MCS in Court

Perhaps the area where the chemical industry is most aggressively fighting MCS is in the courts. This is not surprising, considering the fact that ESRI (Environmental Sensitivities Research Institute) was founded to assist industries involved in MCS litigation. MCS cases commonly involve workers' compensation, social security, toxic tort, disability or health insurance, and disability accommodations. MCS can also arise in divorce proceedings, child custody battles, and landlord-tenant and other disputes. In lawsuits where chemical manufacturers are directly involved, for example, when they are being sued for harm caused by their products, it is clear that attacks on the plaintiff's credibility and medical condition, including MCS, come from the manufacturers. It is often unrecognized, however, how much the chemical industry is also involved in suppressing MCS in other lawsuits, through filing of briefs, supplying "expert" witnesses, and distributing anti-MCS literature to attorneys and witnesses.

The chemical industry also seems to have been influential in convincing many judges that MCS testimony should not be allowed in court. They argue that MCS does not satisfy the Daubert criteria for the admission of scientific testimony established by the US Supreme Court in 1993. This ruling eliminated the requirement that expert testimony be "generally accepted" in the scientific community to be admissible and replaced it with the requirement that the reasoning or methodology underlying any proposed testimony merely be scientifically reliable and relevant.^[46] Thus, the intent of the ruling was to allow testimony on emergent theories of disease even if they had not yet been generally accepted by the medical community. But in the case of MCS, this has backfired. The Daubert ruling, which was intended to make it easier to admit scientific testimony in court, has increasingly been used to block testimony on MCS.

Some judges have ruled that MCS does not satisfy the Daubert criteria, despite the fact that it clearly satisfies at least three of the four factors specified in the Daubert ruling to assess proposed testimony. The Daubert ruling states that the following considerations will bear on admissibility of expert testimony: 1) whether the theory or technique in question can be (and has been) tested, 2) whether it has been subjected to peer review and publication, 3) whether the reasoning or methodology has a known or potential error rate, and 4) whether it has widespread acceptance within a relevant scientific community.^[46] According to these criteria, testimony on MCS should be admitted because, it "can" and "has" been tested,^[47] has been subjected to extensive peer review and publication,^[48] and is widely accepted in the environmental medicine community. The factor regarding potential error rates is largely irrelevant because MCS is a clinical diagnosis that does not rely on tests.

But whether an illness or theory satisfies the Daubert criteria is obviously in the eye of the beholder. A judge in New Mexico, for example, ruled there was not enough published literature on MCS to fulfill the Daubert criteria.^[49] Yet there are over 600 articles on MCS and related conditions in the published literature, the majority of which support a physiological rather than psychological basis for MCS in a ratio of two to one.^[48] The judge rejected testimony on MCS even though he thought there would be enough literature in 5 to 10 years for it to satisfy the Daubert requirements. But if a judge is convinced MCS will be well-established in the future, then testimony on MCS is credible and ought to be admitted now. After all, the intent of the Daubert rule is to admit testimony on just such valid emerging theories of disease as this one. In addition, it is unclear how much this judge was swayed by the anti-MCS opinions of the defendant's expert witness, who admitted she relied on material sent by ESRI for her testimony and did not know who funded the organization.^[50] It is, indeed, unfortunate that the subjective nature of the Daubert criteria has allowed judges to misinterpret them in favor of the chemical industry. This has resulted in many people with MCS being denied disability benefits, compensation for toxic injuries, and reasonable accommodations under the ADA, among other things.

A case in point is a recent ruling by the Massachusetts Supreme Court that rejected MCS testimony in a work-related injury case because the physician's testimony was not based on "reliable methodology," that is, because he did not use a test to diagnose MCS.^[51] This conclusion was reached even after stating that "a new theory or process might be so 'logically reliable' that it should be admissible, even though its novelty prevents it from having attained general acceptance in the relevant scientific community" and that "in many cases personal observation will be a reliable methodology to justify an expert's conclusion." This is another example of a biased interpretation of the law against MCS. And again we find the chemical industry involved. Though not a defendant in the case, the American Chemical Council (formerly the Chemical Manufacturers Association) filed a "friend of the court" brief and expressed delight with the court's anti-MCS decision.^[52]

^[46] Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 US, 125 L Ed 2d 469, 113 S Ct [No. 92-102].

^[47] Kailin EW, Brooks CR, Systemic toxic reactions to soft plastic food containers. Med Ann DC 1963; 32(1):1-8.

^[48] MCS Referral & Resources, MCS bibliography, http://www.mcsrr.org/resources/bibliography (10/24/00).

^[49] Transcript of proceedings regarding a motion in limine to exclude expert testimony regarding multiple chemical sensitivity, G.M. "Jeri" Rundquist vs. Long John Silver's, Inc., 4/1/98.

^[50] Deposition of Katherine Jean Abernathy-Carver, M.D., G.M. "Jeri" Runquist vs. Long John Silver's, Inc., Albuquerque, NM, February 16, 1998.

^[51] Cowin JJ, Massachusetts Supreme Judicial Court, Theresa Canavan's Case, Docket No. SJC-08226, 8/17/00, SJC Slip Opinions, http://www.socialaw.com/sjcslip/8226.html (8/28/00).

^[52] Ranalli R, SJC tells judges to evaluate experts. Boston Globe, 8/20/00, B01.

Note from Alison Johnson
Chair of the Chemical Sensitivity Foundation

Many chemically sensitive people successfully use a lawyer in the initial or later phases of hearings to obtain Social Security Disability Income or Social Security Supplemental Income. It would appear that Workers Compensation Cases are harder to win and many physicians refuse to get involved in these cases, but I have heard of many people winning such cases.

Toxic tort cases - cases in which the plaintiff attempts to prove that a chemical exposure caused him or her to become sick - are more problematic for those with MCS. I hear from many chemically sensitive people who are intent upon bringing such a case because it seems absolutely clear to them that a certain exposure caused them to become chemically sensitive. I almost always discourage people from launching such a case because the possibility of winning is extremely low. Because of this low chance for success, it is highly unlikely that a lawyer will take such a case on a contingency basis. Most people with MCS are already desperately short of money and can ill afford the risk of running through what little savings they have in the hopes of getting a substantial settlement that will enable them to pay their rent or mortgage.

In the last fifteen years, I have learned of two toxic tort cases in which the evidence that a chemical exposure had caused major health problems was very powerful. The plaintiffs in these cases were wealthy and could afford top lawyers and physicians. Nevertheless the plaintiffs lost these cases. One couple who were quite wealthy before they started their ten-year court battle unfortunately ended up with a fairly limited amount of money for their retirement. Hard as the message may seem, I suggest that you think long and hard before launching a toxic tort case. Legal cases can become the dominating focus of a person's life as they drag on and on, and that's not healthy from a psychological point of view. Another important consideration is that when you lose the case, a highly likely outcome, that will add a huge disappointment to your life, which is almost certainly already full of disappointments resulting from your chemical sensitivity. At some point, it is probably better to find some positive things in your life and move on.