ME/CFS South Australia Inc supports the needs of sufferers of Myalgic Encephalomyelitis, Chronic Fatigue Syndrome and related illnesses. We do this by providing services and information to members.
ME/CFS South Australia Inc aims to keep members informed of various research projects, diets, medications, therapies, news items, etc. All communication, both verbal and written, is merely to disseminate information and not to make recommendations or directives.
Unless otherwise stated, the views expressed on this Web site are not necessarily the official views of the Society or its Committee and are not simply an endorsement of products or services.
High court sides with sick 11-year-old, clears block to medical torts
Monday 26 September 2011
High court sides with sick 11-year-old, clears block to medical torts
Chronically ill welcome high court decision; defense attorneys warn of ‘junk science’ in court
When she learned she was pregnant, Julie Anderson working at a Pacific plant making paint.
It wasn’t until her son was a little older that she realized he wasn’t quite alright.
Doctors told her the boy, Dalton, now 11, suffered birth defects that make it harder for him to understand the world. She later came to believe that her son’s infirmities came from her exposure to solvents used at the AkzoNobel facility.
She got a lawyer and four years ago filed a suit. She had medical experts ready to argue that her son was sick because of her work; her former employer had its own prepared to rebut the claims. She wanted her day in court.
But, because of longstanding case law in Washington supported by civil defense attorneys defending employers and insurers, she almost never got the chance.
Issuing a ruling in line with earlier cases, a King County Superior Court judge ruled the Andersons’ experts couldn’t show a large body of medical opinion supporting their belief that the boy had been harmed in the womb by his mother’s exposure to paint thinners.
Earlier this month, though, the state Supreme Court threw out that long-held standard on medical testimony and allowed the Andersons to take their claims against AkzoNobel – a multi-billion-dollar manufacturer with holdings around the globe – to a King County jury.
In a unanimous decision, the court ruled that medical testimony will be allowed so long as the methods experts use to reach their conclusions are scientifically sound. The experts’ conclusions, the court continued, can be presented whether or not there’s a scientific consensus supporting them.
A quirk of the law on its face, attorneys representing the Andersons and others like them contend the Supreme Court decision has removed a major stumbling block for sick or injured Washingtonians to pursue their claims against insurance agencies or employers in court.
“This will be the leading case in the country on this type of issue,” said Lincoln Beauregard, a Tacoma attorney who represented the Andersons with John R. Connelly Jr.
“Justice was done in this case,” Beauregard continued. “Now my client and her son will get their day in court.”
Speaking Tuesday, Bill Walsh, a Seattle attorney representing AkzoNobel, said the Supreme Court ruling will likely allow “junk science” into the courts as judges around the state struggle to make sense of the new guidelines.
Instead of taking disputed or unproven expert opinions to a judge, attorneys and their experts will be arguing in front of jurors, Walsh said. That, he asserted, will make contentious personal injury cases more about the advocates than the scientists, and could mean financial penalties against individuals and companies that don’t deserve them.
“This was a case about where do scientific causal relationships get determined, in the laboratory or in the court?” Walsh said.
“I think the law is getting out ahead of the science in this decision,” the Seattle attorney continued. “I think there’s a danger in that, because it’s about truth – what truly caused a condition – and that’s about justice.”
Walsh did agree that the court’s ruling will have significant impact on litigation in Washington, and suggested that “anybody who practices law in this state” and knows of the decision would say the same.
In its Sept. 8 opinion, the high court’s decision in part rejected a legal framework based on a 1923 federal appeals court decision known as the Frye test. Earlier state Supreme Court decisions had held that experts’ conclusions must be “generally accepted” in the relevant scientific community.
“If we were to accept Akzo’s argument and require ‘general acceptance’ of each discrete and evermore specific part of an expert opinion, virtually all opinions based upon scientific data could be argued to be within some part of the scientific twilight zone,” Justice Tom Chambers wrote for the majority.
While the court rejected other portions of the Andersons’ appeal related to her firing by AkzoNobel, its decision will allow the case to continue with regard to the company’s culpability, if any, for Dalton Anderson’s disabilities.
Decision welcomed by fibromyalgia sufferers
The Supreme Court decision was the best news Rebecca La Monte had heard from a court since she filed a lawsuit in 2000 claiming that a car crash caused the fibromyalgia she now lives with.
Once an executive and business owner, La Monte now fights to get out of bed every morning and struggles for sleep every night because of the chronic pain condition.
Prior to the crash, the 60-year-old Bellevue resident said she had a “happy life” full of successes personal and profession. Now, she said, she lives in pain and fog.
“Fibromyalgia is an invisible illness,” La Monte said. “You can’t see fatigue. You can’t see brain fog. You can’t see pain.”
Thought to affect about 10 million people in the United States, fibromyalgia causes widespread pain in the body’s muscles as well as gastrointestinal problems, fatigue and sleeplessness. It is diagnosed based on a person’s symptoms, not a concrete test, and has no definitive cause.
In La Monte’s case, though, experts in the field and her treating physician were prepared to tell a King County jury her condition was caused by a car crash and that, by extension, the other driver’s insurer owes her for her pain.
La Monte’s lawsuit had been largely sidetracked since 2002 because the court was not prepared to allow her doctor and experts to testify regarding the cause of her illness, attorney Steven Krafchick said.
As Anderson had, La Monte was asked to show that most medical professionals researching her illness would agree that it was, in her case, caused by the car crash before she could bring the case to a jury. Because the insurance company had experts of its own disputing that view, it appeared unlikely that she could meet that burden.
“You just assume that you present the evidence to the jury, and they make a decision,” La Monte said. Instead, she and others with fibromyalgia have waited for the rules to change.
Speaking last week, Krafchick said he has numerous clients who’ve been waiting years to see if they might be able to put their cases – and their experts – before a jury.
“It’s been a long fight,” said Krafchick, who filed a brief with the Supreme Court supporting the Andersons’ position.
“It was very difficult to get settlements, reasonable settlements,” he continued. “There are many clients that I’ve had that just get fed up.”
With the Supreme Court decision, though, Krafchick believes many people injured or ill because of the actions of others will get a chance at justice.
“This is the best outcome for the people in the state of Washington,” Krafchick said.
‘Junk science’ or a fair shake?
As he and others representing AkzoNobel had said in court documents, Walsh said he believes existing case law struck a balance between allowing plaintiffs to make their cases and the court’s interest in keeping unproven science out of the courtroom.
“What we’re concerned with is not having scientific, causal connections made in the courtroom before they’re made in the laboratory,” Walsh said. “With all due respect to the court, I think there’s a danger of that happening here.”
Writing in support of AkzoNobel, attorneys for the Washington Defense Trial Lawyers association argued that the high court should uphold the 88-year-old Frye standard, which has been discarded in other state courts.
“This test – which requires that both methodology and theory obtain ‘general acceptance’ in the scientific community – had been the law in Washington for almost a century,” lawyers for the civil defense attorneys’ association wrote the court.
“The parties generally agree that the link between prenatal exposure to organic solvents and brain malformation is outside the (understanding) of the average lay juror,” they continued. “The only question, then, is whether (Anderson) has established that causal link with reliable scientific evidence.”
According to the Andersons’ attorneys, genetic tests showed no abnormalities that would have caused the Dalton Anderson’s brain damage. Speaking Tuesday, Beauregard noted that hazard notices on AkzoNobel’s paints warn that they can cause birth defects, including brain damage.
“There is virtually unrefuted evidence that AkzoNobel failed to provide minimal safety precautions to employees such as Ms. Anderson,” Beauregard and Connelly told the court.
“To this day,” they continued, “the treating doctors and expert witnesses cannot identify any other potential cause of Dalton’s brain damage other than organic solvent exposure during Ms. Anderson’s pregnancy.”
Company: Mother knew risks
Attorneys for AkzoNobel claimed Anderson was warned not to mix paint while pregnant and asserted she was at fault for her son’s injuries, if they were caused by chemical exposure.
“Ms. Anderson was repeatedly told by several witnesses not to mix paint while pregnant,” the company’s attorneys argued. “And it is undisputed that there were warning labels on the cans of paint … that contained warnings about pregnancy.
“So, if she really did mix paint while pregnant, not only did she ignore the admonitions of her supervisor and fellow employee, but she also ignored the warning label on every can of paint she mixed. Accordingly, she assumed the risk posed to her unborn child.”
The Andersons’ attorneys dispute the claims, contending that Anderson was following safety protocols put forward by the company.
Anderson ultimately filed a complaint with state workplace safety authorities, who subsequently inspected the facility and cited AkzoNobel for failing to properly monitor air quality at the paint factory and for not requiring that respirator cartridges be changed daily.
A year later, Anderson again filed a complaint with the Department of Labor & Industries asserting that AkzoNobel had not made the necessary changes. State inspectors arrived at the plant on June 29, 2004, to perform a surprise inspection. Anderson, whose complaint was not anonymous, was fired the next day ostensibly for taking paint home for personal use.
As to Dalton Anderson, Beauregard said the boy continues to live with injuries to his brain and body that make it difficult for him to enjoy a normal life.
“Basically, he was born with medical abnormalities caused by his mother’s exposure” to solvents at AkzoNobel, Beauregard said. “While he’s a fantastic kid and a happy kid, he’s got challenges well beyond that of any other kid in terms of cognitive development.”
‘Science never stops’
Key to the Andersons’ lawsuit was a 1999 study regarding the impacts of exposure to organic solvents on pregnancy. Oddly enough, authors of the study were retained by each side as opposing expert witnesses.
The Canadian study was published in the Journal of the American Medical Association – JAMA, one of the world’s leading medical journals. It concluded that women exposed to organic solvents at work without protective equipment are 13 times more likely to have children with major birth defects.
Writing the court, attorneys for AkzoNobel asserted that the Andersons’ expert witness' argument -- that exposure to solvents caused the boy’s birth defects -- is “a minority of one.” They went on to reiterate a claim made by the company’s expert witness that no doctor studying the cause of birth defects could testify that the boy’s specific birth defects were caused by exposure to organic solvents.
Through counsel, AkzoNobel contended only one study – the 1999 study co-authored by experts called in the case – purported to show any link between severe birth defects and solvents like those to which Anderson was exposed. Andersons attorneys claim a second study conducted by AzkoNobel’s lead expert witness also shows that organic solvents can cause brain defects in children, though the paint manufacturer has argued that study’s findings are too broad to be relevant in court.
Responding to the claim, attorneys for the Andersons argued that experts in the field are in agreement on the key issue – that exposure to solvents in the workplace causes fetal brain defects. Whether Dalton Anderson’s specific injuries were caused by his mother’s exposure to those chemicals, they argued, is a question for a jury.
Writing for the unanimous court, Chambers suggested that conflicting scientific views should be tested within the “crucible of cross-examination” before a jury.
“Science never stops evolving and the process is unending,” Chambers wrote for the majority. “Each scientific inquiry becomes more detailed and nuanced.”
The Andersons’ case has been remanded to King County Superior Court, where a trial date will be set. A trial date has not yet been set in La Monte’s case.
The above, with comments, originally appeared here.
blog comments powered by Disqus