Insights & Events

Hollingsworth LLP associate Louis Russo published an article for Bloomberg Law that discusses how lower-level detection in torts means defendants must challenge aggressively expert theories on doses, especially theories claiming that low-level or “any or every” exposure can cause disease.

Expert opinions that fail to establish either a threshold dose that can cause injury or that a plaintiff’s dose exceeded that threshold are ripe for challenge. Defendants’ best approach to addressing this aspect of plaintiff’s case is often pre-trial exclusion of unqualified experts, deficient expert opinions based on unsupported theories, and cherry-picked evidence.

Understanding the relevant jurisdictions’ substantive requirements for causation and standards for admissibility of expert testimony is critical when devising a defensive strategy. Even if defendants are unsuccessful in pre-trial evidentiary challenges to plaintiffs’ proof, motion practice offers a first opportunity to educate judges on these basic principles of toxicology.

While failing to establish that a plaintiff’s dose was at or above a threshold that can cause disease should result in dismissal, some courts permit such cases to reach the jury under what has been referred to as the any-exposure theory. Plaintiffs have successfully established “any exposure” theories of causation in some jurisdictions, notably California. Unlike California, New York requires a scientific expression of dose.

When litigating a dose case, attorneys should focus on challenging unqualified expert testimony, highlighting deficiencies in causation evidence, and demonstrating that plaintiffs fail to meet jurisdictional standards for proof of specific causation.