Saturday, August 09, 2003

Attention All Litigators: Learn to Say "Polybrominated Diphenyl Ethers"

Today's NYT reports that California Governor-of-the-Moment Gray Davis is scheduled (how soon?) to sign legislation in which California will say "Hasta la vista" to polybrominated diphenyl ethers, or PBDE's -- flame retardant chemicals commonly found in foams and plastics used in furniture and electronics. Public health professionals are expressing concern over the rapid escalation of PBDE concentrations in the environment, and over studies of mice suggesting links between PBDE's and learning disorders, as well as other conditions, like hyperactivity, that may be attributable to brain dysfunction. This does not appear, necessarily, to be an instance of Chicken Little environmental alarmism. Scientists are likening PBDE's to PCB's, both in molecular structure and potential adverse effect.

The commercial origins of PBDE's are not so diffuse as to thwart litigation. Note to the United States District Court for the Southern District of Indiana: Indianapolis-based Great Lakes Chemical is the primary producer of PBDE's, according to the Times. Note to the plaintiffs' bar: PBDE levels can be measured in blood tests.

If toxic tort litigation does materialize, the Daubert debate can almost be rehearsed right now. The plaintiffs' experts will rely on animal studies and elements of molecular structure analogous with PCB's. Defense experts will counter that causation cannot be proved without human epidemiology, which so far remains lacking. It's a wonder there isn't already a form-bank for such debates. Maybe the folks at Deloitte & Touche are working on one.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.