Toxic Tort and Environmental Law Update: January 2013 - Plaintiffs Bear the Burden of Establishing Causation by Competent Expert Testimony in C6 Exposure Claims

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Judge Susan Illston of the U.S. District Court for the Northern District of California recently ended 16 years of toxic tort litigation relating to fugitive hexavalent chromium (C6) exposure involving the City of Willits and its residents because the plaintiffs could not establish causation.  (Donna Avila, et al. v. Willits Environmental Remediation Trust, et al., No. 99-3941 N.D. Calif.; 2012 U.S. Dist. LEXIS 146904.)

The case began in 1996 when Willits brought suit against Remco Hydraulics and its successors for soil and groundwater contamination of fugitive C6 and chlorinated solvents exposure from its plant operations.  After a negotiated settlement between the city and Remco, nearly 1,000 residents filed toxic tort claims for personal injury and property damage in federal court.  The plaintiffs alleged that the defendant’s negligent use of chromium caused subsequent exposure, which led to a wide variety of medical conditions, including cancer, damage to the liver and kidneys, and a variety of anxiety disorders.  After years of dispositive motions, rulings and challenges, as well as hundreds of dismissals and 300 private settlements, the remaining six consolidated claims were dismissed by Judge Illston after she determined that the plaintiffs could not meet their burden to establish causation as a matter of law.

The defendants moved for summary judgment after the remaining six plaintiffs were ordered to disclose the report of their causation expert, Dr. Vera S. Byers, whose report admitted that it was her opinion “to a reasonable degree of medical certainty that the [remaining plaintiffs’] exposure to the chemicals disseminated by the Remco plant cannot be proven to be a substantial factor” in causing the plaintiffs’ alleged injuries.  Judge Illston opined that Dr. Byers admitted in her report (and later at deposition) that she “was unable to render an opinion that there is a causal connection between these six plaintiffs’ alleged injuries” and the alleged contamination.  Judge Illston ruled that the defendants met their initial burden because “[a] plaintiff claiming personal injury from exposure to hazardous substances must prove ‘within a reasonable degree of medical probability based upon competent expert testimony’ that such exposure was the cause or substantial cause, of the injury.”  (Jones v. Ortho Pharm. Corp.,163 Cal.App.3d 396, 402-403 (1985); see also Gordon v. Havasu Palms, Inc., 163 Cal.App.4th 244, 252 (2001).)  The plaintiffs did not oppose the defendants’ summary judgment motion, much less attempt to submit any further evidence to establish the critical element of causation.  Nevertheless, the ruling sends a clear message that plaintiffs bear the burden of establishing evidence of causation based upon competent testimony before they will be permitted to proceed to trial in C6 exposure claims.