An essential component of any toxic tort case for either the plaintiffs or defendants is the testimony of the industrial hygienist (IH) who can reconstruct the dose at the plaintiff’s worksite, said Larry G. Cetrulo of Cetrulo & Capone LLP speaking at the HB Litigation Conferences teleconference “The Impact of Industrial Hygiene Experts” on Nov. 1.

“Especially in multidefendant cases, they are essential,” Cetrulo said.

Cetrulo, a defense attorney, said that the “overarching question” for individual parties in multi-defendant toxic tort cases is whether their objective is to save themselves or to defeat the plaintiff’s case.

“If your industrial hygiene preparation doesn’t include a meeting with all of the defendants remaining in a case, pre-trial opening, then you’ve answered the question.  It’s every defendant for himself, or herself,” he said.

Cetrulo said that he is in favor of a coordinated defense in which the defendants work together to defeat the plaintiff’s case.

“Quantifying dose—in context—is the name of the game from the defense.  It’s to establish—to show your client’s product was not a substantial contributing cause of the disease,” he said.

Cetrulo said that this can only be done if the exposure is quantified in the context of the plaintiff’s workplace.  He said that the industrial hygienist should provide a description of the kind work that the plaintiff actually did, which can be contrasted with the “sometimes fanciful description of a work environment that a plaintiff will give you.”

“The objective is to show that the plaintiff did not or could not, be exposed in the manner, method and means by which the plaintiff has testified to his or her exposure,” he said.

Another important element that the industrial hygienist must establish is alternate exposures.

“Obviously, if alternative exposures exist, then you have the foundational basis to argue that the exposure of alleged consequence—that is the exposure alleged against your particular client—could not have been a substantial contributing cause of the disease,” he said.

Justin H. Shrader of Shrader and Associates, a plaintiff attorney, said that he agreed that dose is important to the defense.

“I just spent 28 days at trial in Las Vegas and every single day I heard the phrase ‘the dose makes the poison.’  And sometimes I heard it 10 or 20 times a day whether I was cross-examining a witness that my question called for that answer or not,” he said.

“The best way to answer industrial hygiene is with medicine,” he said.

Shrader suggested that attorneys in asbestos mesothelioma cases counter the dose argument by saying “that there is no safe dose with regard to that signature injury.”

He said that plaintiffs should be particularly careful in selecting the right industrial hygiene expert.

“I would encourage those of you who are litigating toxic tort cases from the plaintiff’s side to look for somebody who is a little bit new.  I think for a long time—for decades in some cases—have relied on the same people.  Not that they’re not great, but they’ve taken a lot of water I think over the years and it never hurts to have a fresh face, especially given that you may be competing with another plaintiff’s firm in getting a well known expert to trial,” he said.

However, he cautioned that plaintiff attorneys select someone with real industry or governmental experience.

“How will these people present to the jury?  Is your industrial hygienist somebody who’s credible?” he said.

He also suggested that attorneys meet with their expert before the deposition and trial and be sure to get his or her input on the case.

“I would meet the IH and get a thumbnail assessment before they’re ever put up for depo and make sure to ask them if they need anything because I think the give and take will help you a lot,” he said.

Shrader says that his firm uses the “Wilford Brimley Test” in order to select the right industrial hygiene expert.

“If you think your IH can sell life insurance or talk about diabetes for more than five minutes then people will be captivated and trust them, then you’ll have an IH that you’ll probably use,” he said.