Litigation 101 (Toxic Torts)

Author:Ms N. Kathleen Strickland
Profession:Holland & Knight LLP
Originally published October 2004

Lawyers at my firm have been immersed for the past seven years in a mammoth toxic tort case involving groundwater contamination in Southern California that has been reminiscent of the litigation that unfolded in "A Civil Action".

The cases, which began with more than 1,000 plaintiffs, were filed by lawyers at two very experienced and well-financed plaintiffs firms. They were later consolidated into one case group and assigned to the Central Civil West division of the Los Angeles Superior Court. As of mid-April, the case total has been reduced from 1,000 to about 540.

Along the way, the case has been fiercely defended. Motions have been made and granted for change of venue. Writs have been taken and accepted. There's been a trip to the California Supreme Court on issues of pre-emption and regulatory jurisdiction. Judicial assignment challenges have been made and granted, as have demurrers. Claims for both punitive and property damages have been struck. Dismissals have been granted owing to the failure of plaintiffs to answer pending discovery in the form of questionnaires.

Even with extremely experienced plaintiffs counsel, defense counsel and a judge, the lesson learned after seven years is that the case is simply too large. The size and complexity of the case created administrative challenges for all involved. At the outset, more than 70 defendants were sued by more than 1,000 plaintiffs. Among the defendants were private industrial companies, municipalities, and both regulated and non-regulated water purveyors.

In an attempt to minimize costs and share expenses, about two-thirds of the industrial defendants organized into a Joint Defense Group. Even so, the sheer size and scope of the case has caused all parties to feel at times as if they've been trying to move an elephant down the football field. And, two years after the Supreme Court's remand in the case, we are still only in the first quarter of the game.

From a plaintiff's perspective, these kinds of cases are very expensive for counsel to undertake. They are also difficult to prove. Before filing a toxic tort case, make sure you can afford to take it because it will almost certainly be a long road. Funding the litigation will usually necessitate opening lines of credit. The burdensome expenses come from having to administer the case over the long term and from having to retain multiple layers of experts.

Causation is key in these kinds of cases. Before you begin,...

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