Chemical Injury Attorneys Blog - Reactive Airways Dysfunction Syndrome (RADS)
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Key Cases in RADS Litigation –Anderson v. Hess corporation

December 27, 2012

Filed under: Proving A RADS Case,RADS Litigation Issues — admin @ 4:32 pm

 

            I am now going to look at some of the major cases helpful in a RADS case, particularly on the issue of causation.

            Anderson v. Hess Corporation, 592 F.Supp.2d 1174, 1181 (D. N.D., 2009).  In this 2009 case, the United States District Court for the District of North Dakota ruled that a physician could give causation testimony regarding a woman who acquired RADS from an exposure in her home.  The plaintiff was living approximately three-quarters of a mile from a gas plant owned by the defendant Hess, and awoke after having been asleep for about four and a half hours gasping for air and having the sensation that the bed was spinning.  She went to the window to get some air and next remembered being on the bathroom floor trying to lift her head up. Anderson’s husband found her on the bathroom floor, noted a gassy smell, and then droveAnderson to the emergency room.  En route to the hospital the husband noticed a gas cloud that appeared to encompass the air.

            The plaintiff’s treating physician performed an extensive medical history in which he ruled out possible causes for her condition, before ultimately concluding she was suffering from RADS.  The treating physician testified that he “learned of no other significant exposure to a gas, smoke, fume, or vapor with irritant qualities in high concentrations that could have caused [plaintiff’s] condition other than the June 20, 2006 event.”  Id. at 1182.  In Anderson, there was no toxicological evidence of exposure.  Although Hess acknowledged that gases had escaped from the plant on June 20, 2006, an environmental health specialist for the company detected no positive readings from gas monitors used near theAnderson residence.  Nonetheless, the Court denied Hess’ Motion for Summary Judgment because it found that Dr. Neumann could testify as to causation, thus creating a factual dispute.

Crossing The Line With An Investigator — Part II

November 15, 2012

Filed under: RADS Litigation Issues — admin @ 9:35 pm

 

           In the last installment, I discuss how a defendant in one of our RADS cases, the defendant went far beyond the typical use of an unobtrusive investigator.  The defendant, frustrated with lack of results, actually went door to door questioning the plaintiff’s neighbors.

            The defendant got little for its efforts other than to make itself look bad.  The witnesses that the defendant’s investigators questioned will all testify that the investigator told them a false story as to what he was doing.  Things got worse for the defendant.  During a neighbor’s videotaped deposition, the defendant’s counsel showed her one of the investigator’s photos that include the neighbor’s young children.  The witness’ horror and emotion at seeing her children photographed by an investigator was captured on video for the jury.  It was apparent that the witness found it creepy that a stranger had taken pictures of her children.  I am guessing that at least some jurors will feel the same way. 

            In the final analysis, a defendant’s use of a private investigator is a balancing act between the value of discrediting the plaintiff, and the risk that a jury will find the process unsettling.  Allowing an investigator to question neighbors on false pretenses can hardly fail to carry a steep price tag.  The defendant paid that price and got nothing in return.

Crossing the Line With An Investigator – Part I

October 29, 2012

Filed under: RADS Litigation Issues — admin @ 4:50 pm

           It is a fairly commonplace practice for a defense firm to hire an investigator in an effort to find out whether a plaintiff’s claim of serious injury is genuine.  In the typical scenario, and in cases justifying the expense involved, defense lawyers will hire an investigator to unobtrusively shadow the plaintiff, hoping to catch him on video doing something he claims he cannot do.

            In a RADS case my firm is handling, the defendant employed that very tactic.  The plaintiff has been permanently disabled, his formerly active life radically changed to that of a virtual shut in.  The defendant, hoping to poke holes in the story, hired an investigator to shadow and video the plaintiff during a course of twelve days in a one-year period.

            Apparently, the defendant was not satisfied with the results of this extensive snooping, and crossed the line into something much more intrusive.  One of the defendant’s agents actually began canvassing the neighborhood, going door to door with a bogus story that he was conducting a “community survey.”  The investigator even told one of the plaintiff’s next door neighbors that he was working with the police department.  Both of these stories were untrue.  What the investigator was hunting for through pointed questioning was anything the neighbors could tell him about the plaintiff that make him look less than fully disabled.  As I will discuss in the next installment, this strategy failed and only served to make the defendant look bad.

Seventh Circuit Approves Differential Etiology As Proof of Causation

July 24, 2012

Filed under: Proving A RADS Case — admin @ 1:40 pm

As readers will recognize, RADS is a complex disease and can make for a challenging case.  Interestingly, though, the diagnostic process that a physician goes through to diagnose RADS also serves to provide legal proof of causation, that is, proof that the chemical exposure in question caused the plaintiff’s RADS.  That is because the eight RADS factors lend themselves automatically to recognized proof of causation through “differential etiology.”

Differential etiology was expressly approved as proof of causation in 2010 by the U.S. Court of Appeals for the Seventh Circuit in Myers v. Illinois Central Railroad, 629 F.3d 639 (7th Cir. 2010), a cumulative trauma case.  The court in Myers defined and approved differential etiology as a variant on differential diagnosis:  “Etiology is the study of causation. And in a differential etiology, the doctor rules in all the potential causes of a patient’s ailment and then by systematically ruling out causes that would not apply to the patient, the physician arrives at what is the likely cause of the ailment. There is nothing controversial about that methodology.” Id. at p. 644 (emphasis added).

Differential etiology is especially applicable to RADS, because assessment of probable cause and elimination of other explanations is built into the eight RADS diagnostic factors.  Earlier this year, differential etiology was expressly approved for use in RADS cases in Noffsinger v. The Valspar Corporation, 2012 WL 895496 (N.D. Ill., March 15, 2012).  The availability of a differential etiology as proof of a RADS case is extremely important, given the absence of toxicological data that is typical in a RADS case.  In coming installments, I will look at earlier case law that helped lay the foundation for the Noffsinger decision.

RADS Plaintiffs Do Not Need To Determine Dose

July 5, 2012

Filed under: Determining Dose,Proving A RADS Case — admin @ 2:26 pm

As noted in last week’s post, the court in Noffsinger v. The Valspar Corporation, 2012 WL 895496 (N.D. Ill., March 15, 2012) (Gettleman, R., Judge), rejected traditional toxicological requirements for proving causation in a RADS case.  Dose is one such element that a RADS plaintiff need not demonstrate.

Dose is a fundamental toxicological concept.  Dose refers to the amount of a substance over a certain period of time.  The concept relates directly to the idea that any substance, however harmful, must be administered in a certain dose for the attendant harm to occur.  Defendants rely on dose to demonstrate that a plaintiff could not have suffered harm from a given exposure.  A defendant’s expert may point out that salt, in normal quantities, is essential to life, but salt taken in high concentrations over a short period of time can be fatal.  This type of testimony leaves the plaintiff in the position of having to prove not only what dose occurred, but that the dose is known to cause harm.

In a RADS case, the abrupt and accidental nature of the exposure typically leaves a plaintiff without the ability to prove the exact concentration of exposure (or even the time of exposure).  If it was necessary to calculate an exact dose in a RADS case, such cases would be impossible to prove.  That is why Judge Gettleman recognized that the question whether a medically significant exposure occurred is left to the physician.  Through the use of differential etiology and respiratory testing, the physician  can determine the cause and effect relationship of the sudden exposure without reference to specific dose calculations.

RADS Plaintiffs Do Not Need To Identify Contaminants of Concern

June 27, 2012

Filed under: Contaminant of Concern,Proving A RADS Case — admin @ 12:52 pm

In an earlier post, I wrote about our firm’s success in Noffsinger v. The Valspar Corporation, 2012 WL 895496 (N.D. Ill., March 15, 2012) (Gettleman, R., Judge), a the United States District Court for the Northern District of Illinois case rejecting “traditional” toxicological requirements for proof of causation.  Here, I will focus on one element of proof that is not required in a RADS case, identifying the specific substance that caused the disease.

In a typical toxic tort case, the ability to identify the specific causative agent may be taken for granted.  Examples include benzene exposure cases.  In other cases, where the bad actor is not specifically pinpointed, a plaintiff may be required to prove which of several agents caused harm.

This rule does not apply in a RADS case.  RADS is non-specific.  It is can be caused by any irritant gas.  In Noffsinger, the plaintiff was exposed to Dynaprime, an irritant solvent based paint, the volatile components of which were all irritants.  The court in Noffsinger held that the plaintiff did not have to prove which Dynaprime irritant caused his RADS.  It was sufficient that the plaintiff was able to show that he was exposed to a mixture of chemicals with irritant qualities.  Next week, I will look at the toxicological concept of dose, and how dose is addressed in a RADS case.

Factor Eight: Ruling Out Other Pulmonary Disease

June 13, 2012

Filed under: Proving A RADS Case,RADS Medical Factors — admin @ 12:52 pm

A diagnosis of RADS requires that “other pulmonary diseases” be ruled out.  This is the endgame of the differential etiology that constitutes the proof of causation in a RADS case.  Accordingly, it is exceedingly important that your client provide a complete and accurate history to the treating physician.

The most important part of the prior history is that it be free from prior asthma or asthma like conditions.  Preexistence of reactive airways disease tends to rule out the possibility that the current condition was the sudden onset set of symptoms that characterizes RADS.  Having said that, childhood allergies and hay fever are not necessarily fatal to a RADS diagnosis.  Allergies are immunologic in nature, meaning that they are caused by sensitivity to certain agents (for instance, pollen).  RADS, on the other hand, is an irritant induced condition.  People are frequently exposed to irritants, which include things a prosaic as smoke.  With Classic RADS, the single exposure to an irritant is so intense that it creates a permanent or near-permanent injury and ongoing symptoms.  Thus, unlike most encounters with irritants, and certainly unlike encounters with sensitizing agents such as pollen, even when the irritant is gone the symptoms persist.  That persistence is what makes RADS the serious, and sometimes unendurable condition that it is.

Factor Seven: Positive Methacholine Challenge Test

June 8, 2012

Filed under: Proving A RADS Case,RADS Medical Factors — admin @ 8:00 am

The seventh Classic RADS factor is the “presence of nonspecific bronchial hyperresponsiveness.”  Hyperresponsiveness is a measure of the effect of bronchial dilators on an artificially induced asthma attack.  The standard measurement of hyperresponsiveness is a methacholine challenge test (“MCT”).  An MCT is a serious type of pulmonary function test in which the patient inhales an agent that causes what amounts to an asthma attack – and then administers a “rescue” bronchial dilator (usually Albuterol).  The recovery from the “attack” – or responsiveness – is the measure of whether a patient has reactive airways.

An MCT is widely regarded as a gold standard element of a RADS diagnosis.  However, a positive MCT does not mean that a patient has RADS, only that he or she has reactive airways.  The MCT is non specific, which is why it is only one of eight factors for diagnosing RADS.  Smoking can cause reactive airways (and many other negative things).  If your client is a smoker or former smoker, count on the defendant to argue that this is the cause of his or her reactive airways.

While there are other ways of demonstrating hyperresponsiveness that are less intrusive than an MCT, for a plaintiff’s attorney the question is simple.  Absent an extremely strong case otherwise, or an absolute inability of your client to tolerate the rigors of an MCT, having a positive MCT is necessary for your RADS case.  There being no litmus test for RADS, and with so much dependent upon potentially nonverifiable patient history, this is one objective test you cannot do without.  This is subject to, as noted above, the possibility that your client may be too sick to take the test.

Factor Six: Tests Showing Airflow Obstruction

May 22, 2012

Filed under: Proving A RADS Case,RADS Medical Factors — admin @ 1:03 pm

The medical literature requires actual or possible airflow obstruction on pulmonary function tests as the sixth Classic RADS factors.  Airflow obstruction is a respiratory condition that reduces the amount of air being inhaled.  The condition is measured by spirometry, a pulmonary function test.  Spirometry is used to measure a ratio between forced vital capacity (FVC), the total amount of air the lungs exhales at maximum effort, with the forced exhaled volume during the first second of forced exhalation (FEV1).  The “normal” ratio is 80%.  A ratio of less than normal indicates some obstruction in the airways, as opposed to a restriction in the lungs.

The presence (or possible presence) of obstruction is something that should be determined early on during the plaintiff’s medical treatment.  The absence of airflow obstruction, while perhaps not fatal to a RADS case, would put considerable pressure on the other factors, particularly the methacholine challenge test (Factor Seven), an important factor that I will discuss in the next installment.

Factor Five: Asthma-Like Symptoms

May 18, 2012

Filed under: Proving A RADS Case,RADS Medical Factors — admin @ 1:38 pm

The fifth RADS factor requires that the plaintiff have asthma like symptoms.  Commonly, these include coughing, wheezing, and difficulty breathing (dyspnea).  This factor should always be present without controversy.  Medical experts may differ as to whether RADS is actually asthma, or simply an asthma-like disease, but for the sufferer there is no practical difference.  A significant case of RADS will involve a plaintiff who has a significant impact on normal life activities as the result of his symptoms.  Typically, these symptoms will be persistent and resistant to treatment (refractory).  That is not to say that RADS is always severe, but to justify the cost and risk of bringing a lawsuit, the plaintiff’s symptoms must be severe enough and persistent enough to effect a major change in life.

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