Environmental toxic exposure - may be the next trend in tort litigation - and chemical manufacturers should be concerned.

The most recent ABA Journal had an intriguing excerpt from a book Poisoned – How a Crime Busting Prosecutor Turned His Medical Mystery into a Crusade for Environmental Victims – which might portend the next trend in tort litigation.  

The book was written by Alan Bell, who in the 1980’s was a hotshot prosecutor in Florida.  He then left his prosecutor position and took a law firm job in a South Florida skyscraper while he mapped out an anticipated run for the U.S. Senate.  But in 1989 he started having bizarre medical symptoms – so bizarre his doctors thought he might have been poisoned by the Mob.  Eventually Bell learned that he had been exposed to toxic chemicals in the skyscraper.  Bell eventually became so disabled he applied for disability and moved to a remote Arizona location for 8 years to recuperate.  Bell then began collaborating with scientists to to raise awareness about environmental toxic exposure.  The excerpt in the ABA Journal focused on Bell’s representation of  Dan Allen – a successful football coach at College of the Holy Cross in Worcester, Massachusetts[pictured above prior to his death].

In 2001 Allen was working at his office in the gymnasium building at Holy Cross in 2001 when he saw men in white suits and gas masks working on the gym floor.  When he asked the workers what they were doing he was advised the gym floor was being resurfaced.  Allen asked if he should leave the building[a good question in light of the presence of guys in gas masks] but was advised he would be fine in his office.  Shortly thereafter he began to get headaches.  Then loss of sensation in a toe.  Within 18 months he was in a wheelchair, unable to use his right arm or perform any personal toiletry.  

Allen’s wife was a nurse and eventually reached out to Bell.  Bell put Allen in touch with Dr. Marcia Ratner, a neurotoxicologist at Boston University.  After an examination, Dr. Ratner diagnosed Allen with amyotrophic lateral sclerosis[“ALS”] – otherwise known as Lou Gehrig’s Disease.  Allen’s wife then secured the products that were used for the resurfacing in the gym.  They included benzene, toluene and isocyanates, all of which were considered ultrahazardous in Massachusetts.  

Bell then filed a Workers Compensation claim against Holy Cross and a third party case against the chemical manufacturers.  During the course of the third party case it became apparent that the floor resurfacing personnel were obligated by OSHA to wear gas masks and seal off the areas where they were working.  Somehow, Coach Allen’s office was included in the sealed area.  But Allen continued working in his office without a mask, every moment of which he was being exposed.  

Bell then lined up a reknown expert who had studied the link between exposure to the flooring chemicals and ALS in mice.  That expert concluded that Allen’s ALS was indeed linked to his exposure.   

Lawyers for the manufacturers of course tried to have the case tossed on Daubert grounds – meaning that the science offered by Coach Allen’s lawyers was not generally accepted by the scientific community.  U.S. District Judge Dennis Saylor however, denied the Daubert challenge.  After that ruling – where a federal court judge had recognized a link between chemical exposure and the triggering of ALS – the manufacturers folded.   The case settled in 2009.   Unfortunately, by that time Coach Allen had died.  

Hats off to Mr. Bell and his team for sticking with Coach Allen and his family.