John C. Peterson Peterson, Berk & Cross, S.C.

200 East College Avenue Appleton, WI 54911 (920) 831-0300 (920) 831-0165 (fax) jpeterson@pbclaw.com www.foxriverlawyers.com WHEN TORTS TURN TOXIC: REVISITED At the Winter WAJ Seminar in 2009, I presented a paper on a toxic tort case we were pursuing against WEPCO (WeEnergies). Earlier this year, we successfully completed the case with a settlement the defendant insisted be kept confidential. I would like to acknowledge the work performed on the case by my colleague, Amy Risseeuw, and our WAJ member paralegals, Heidi Widi and Kathleen Welhouse. The first part of the current outline entitled When Torts Turn Toxic is a reiteration of my outline from two years ago. At that time, we had just survived a motion to dismiss for failing to state a claim upon which relief could be granted. The second part of the current outline entitled The Revisit will trace the remaining history of the case through discovery, ongoing mediation, and a motion for summary judgment. WHEN TORTS TURN TOXIC: evaluating, pleading, and proving a toxic tort, personal injury claim FACT SCENARIO: Shortly before the third anniversary of the plaintiffs diagnosis with multiple myeloma, a lethal cancer of the bone marrow, a friend refers this potential case in early 2009. The plaintiffs oncologist told him that he contracted the disease because of his exposure to the contaminant benzene while employed at the Appleton water plant where he worked in maintenance from 1978 to 2001. In the mid-18th century, the site of the water plant had begun to be used as a plant for the manufacture of gas from coal, which was very common in the era before the common availability of natural gas after WWII. In 1926, the Wisconsin Electric Power Company (WEPCO) purchased the plant and manufactured gas on the site until it was transferred to the City of Appleton in 1966. In 2001, an environmental study was done at the site which showed dramatic levels of contamination with multiple, noxious chemicals, including benzene. WEPCO again assumed responsibility for the site and undertook a massive remediation under the control of the D.N.R. The question was whether there was anything I could do to help.

I.

Initial Considerations on intake A. Due to the interesting and unique circumstances of this case, I felt some

supplemental background research was necessary. My initial task was to research the general law and these are the resources I read: 1. D. Alan Rudlin, Toxic Tort Litigation, (2007) 2. Jean Macchiaroli Leggen, Toxic Torts, (3rd Ed. 2005). 3. Gerald W. Boston & M. Stuart Madden, Law of Environmental and Toxic Torts: cases, materials, and problems, (1994). 4. Restatement, Second, Torts, (multiple sections). B. With WEPCO being the obvious responsible, culpable party, was there a way to deal with the statute of limitations problems? 1. The unambiguous rule in Wisconsin is that tort claims accrue on the date that the injury is discovered. Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983). 2. When you confront the inevitable proximate cause argument, point out that Hansen expressly states that public policy favors the adoption of the discovery rule. 113 Wis.2d at 558, 335 N.W.2d 582. 3. The plaintiff was diagnosed with multiple myeloma which his doctor associated with his benzene exposure on June 9, 2006, which is, therefore, when his personal injury claim accrued. II. What are the potential theories of liability? A. Negligence

1.

Alleging that the defendant negligently contaminated the property

and failed to warn of its dangerously toxic condition is clearly the theory with which most of us are probably most comfortable, and it was pled in our case. 2. The remedy does have a difficult problem of proof. It assumes

that the defendant knew or had reason to know of the danger they had created. B. 1. Strict Liability in Tort Restatement, Second, Torts, (1977), 519 provides that [o]ne

who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. 2. The difficulty is establishing if operating the gas plant from 1926

until 1966 was such an abnormally dangerous activity analogous to dynamite, the archetypical example with which most of us are familiar. C. 1. The most attractive theory of recovery lies in nuisance. There are multiple types of nuisance. a. Private Nuisance: This gives a plaintiff landowner a claim

for relief against a neighbor whose use of his property interferes with the plaintiffs use of his. b. Public Nuisance: This gives the public a right to seek

abatement of a defendants use of his/her property in such a way

as to unreasonably and significantly interfere with the public health and safety. c. injury action for a kind different exercising the subject of the 821C(1). 2. There are advantages of the private harm for a public nuisance rule): Private Harm from a Public Nuisance (the special In order to recover damages in an individual public nuisance, one must have suffered harm of a from that suffered by other members of the public right common to the general public that was the interference. Restatement, Second, Tort,

over negligence. a. Our Court has clearly distinguished the two remedies in the

acknowledged leading case of Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575, 224 N.W. 748, on reargument, 199 Wis. 588, 227 N.W.385 (1929): In those cases where the nuisance is created by the defendant, no question of negligence or want of ordinary care is involved. In those cases, liability for nuisance does not rest on the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care. 227 N.W. at 386. b. Liability for the creation or maintenance of a nuisance

extends to everything that endangers life or health, gives offense to the senses, violates the law of decency, or obstructs the

reasonable and comfortable use of property. 20 R.C.L. 380. 227 at 386. c. The effect of these points is that at least where the

defendant has created the nuisance (as opposed to maintained the with our constructive III. nuisance), we avoid the problem we encountered negligence theory that we must prove actual or knowledge. There are three basic problems of proof in establishing a case for injury from exposure from a toxic contaminant. A. causal This B. The plaintiff is required to establish that there is a known, general

association between exposure to the chemical and the onset of the disease. association is established by the expert testimony of an epidemiologist. The plaintiff is also required to show that the contamination in this case

was sufficient to cause the onset of the disease. In our case, this association is established by the expert testimony of an industrial hygienist. C. Finally, the plaintiff must prove that the exposure was, in fact, the cause

of the disease. This is established by the medical testimony with reliance on the testimony of the other experts.

THE REVISIT I. The course of pre-trial discovery A. Do not attempt to handle this type of case unless you have the manpower and resources to fight a war with a defendant with unlimited wealth. 1. We requested production of all relevant historical documents maintained in the WEPCO records relating to coal to gas plants, this particular plant, and the discovery of contamination and clean-up. We received thousands of pages of documents, but when we received them they were shuffled with regard to both date and subject matter, in many cases page by page. Comically, after they were shuffled they were Bate stamped. It took weeks of work to put them back into order. 2. Much like medical malpractice litigation, you must have the resources to maintain the civil action. The case ultimately settled while a motion for summary judgment was pending, and the out-of-pocket expenses were $75,0000.00. I suspect that amount would have, at least, doubled if the case were tried to a conclusion. B. You must be prepared to learn the basic principles of epidemiology and toxicology which is where the contest over general causation (whether occupational exposure to benzene can cause multiple myeloma MM) is waged. 1. Plaintiffs expert was an epidemiologist, Dr. Peter Infante. Since you are obviously not going to expose a control group to a well known carcinogen, epidemiologists combine small, historical cohort studies, and perform a statistical analysis of the likelihood of developing MM in those studies compared to the

general population. This type of study is called a meta-analysis, and Dr. Infante did the earliest and leading meta-analysis linking MM and occupational benzene exposure in 2006. His conclusion, in simplified terms, was that the occupationally exposed were 2.4 times more likely to develop the disease than the general population. 2. Defendants expert was a toxicologist, Dr. Joseph Rodricks. It was not so much that he was critical of the performance of Dr. Infantes statistical analysis, as much as it was a position that the statistical analysis did not prove anything in a toxicological sense. Essentially, his position was that there simply was no proof as to how or why exposure to any amount of benzene would cause MM. 3. Dr. P. Hari, our oncologist from the Medical College of Wisconsin, acknowledged at his deposition that there was a scholarly dispute between Dr. Infante and industry epidemiologists over the association of MM and benzene contamination. He would not offer his own opinion as to who was correct. After the deposition we had Dr. Hari prepare an affidavit asking him to assume Dr. Infante was correct. Then, given the absence of any of the risk factors for MM, we asked the doctor whether the causal association here was more likely than not, and he said it was. Our position was that this simply was a different question than was asked at the deposition, but it all became extremely controversial and a bone of contention between the parties, although everyone remained essentially professional and cordial throughout the litigation. C. We had significant difficulty in finding the appropriate expert in the field of industrial hygiene.

1. Our first effort was through one of the expert witness services. We thought we were looking for someone who could quantify the extent of inhalation and dermal exposure to which our client was exposed. On many levels we found the original expert not helpful and outrageously expensive. The most important contribution he made to the case was to refer us to another industrial hygienist who could testify about the history of coal to gas plant sites. 2. The expert on whom we came to rely, Dr. Robert Brandys, was an adamant employee advocate who provided extremely helpful testimony in the nature of what did they know and when did they know it. However, his pro-employee stance could have been a challenge in a jury trial as Dr. Brandys strongly believed the employer, the City of Appleton, should have done more to protect its employee from the contamination. Obviously, you cannot recover for the employers negligence. II. The course of mediation A. At the beginning of the mediation discussion, the defendant really wanted to hire a retired Circuit Court judge to conduct the mediation. We finally agreed on Joe Troy, now of the Habush firm, who did a fair and relentless job over a span of several months to get the case settled. B. If you have complicated and substantial litigation, I would encourage you to consider this process. Judge Troy continued to observe the progress of the case over time, and solicited, at times, continuing views on settlement from the parties. He visited with the respective attorneys at their offices in Milwaukee and

Appleton, and finally, when resolution began to seem possible, he reconvened a second mediation session 4-5 months after the first. III. Finally, at the end of discovery we were confronted with a motion for summary judgment which challenged all three of our legal theories: negligence, strict liability in tort, and a private harm from a public nuisance. A. We abandoned the strict liability in tort claim. It was the weakest argument, and we thought voluntary dismissal might have a positive impact on the thinking of the judge. It was also hard to imagine a scenario where we would prevail on that claim, and not also prevail on the other two. B. The negligence claim came to be a real focus of attention. We found a high school chemistry textbook from the 1940s which clearly states the danger of exposure to benzene, particularly the relationship to leukemic blood disorders related to MM. It seemed reasonable to assume that a jury would find that the contamination, if not the failure to warn, would constitute causal negligence. The more interesting question arose from the fact that we found evidence that WEPCO knew of the dangers posed by these abandoned coal-to-gas plants going back 30-40 years, as documented in their own records. They deliberately adopted a position accepted by some in the industry that they had no duty to warn subsequent owners or occupiers of the contaminated property. It seemed clear to both Amy and I that the question of whether such a duty existed would end up in the Supreme Court without regard to who prevailed on the motion. C. My favorite theory was that the damage was a private harm caused by a public nuisance. There is abundant academic support for the theory, but the supportive

Wisconsin law comes down to Brown v. Milwaukee Terminal Ry. Co., p. 4 supra. Our

entire claim relied on a case in which a landowner was held responsible for maintaining a rotten tree which fell on a passerby on a nearby sidewalk causing him injury. Given the magnitude and complexity or our case, this too seemed destined for the Supreme Court without regard to the Circuit Courts decision on the motion. IV. Settlement A. At the time of the settlement, the plaintiff had already outlived his projected life expectancy at the time of the diagnosis. In all likelihood he would not have survived any appeal, and most certainly would not have been able to participate in any retrial if the case were ultimately remanded after appeal. B. Although I am philosophically opposed to confidential settlements, I suspect that it played a crucial role in the defendants decision to settle the case since it arose from the contamination of property on which the public drinking supply for the City of Appleton was situated for over thirty years.

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