BY ALAN PITTMAN
Toxic Torts
W
hen he was in law school, Charles
Siegel thought toxic torts looked
sexy. A crusading lawyer making
a big corporation pay for the damage its toxic
chemicals have caused has often been a
Hollywood theme.
But the reality of toxic torts is that al-
though they can do enormous good, they’re
very hard cases, a panel of attorneys told a
packed lecture hall at the Public Interest
Environment Law Conference at the UO last
month. “More and more I find myself wish-
ing for a good old rollover or a doctor cutting
off the wrong leg,” Siegel, a Texas litigator,
lamented.
Roy Haber, a Eugene attorney, shares the
frustration. For the past 14 years, Haber has
been suing Hanford contractors, including
DuPont and General Electric, for down-
winder health problems allegedly caused by
the former nuclear weapons factory.
Haber says he has spent $10 million on
the case and the U.S. government has spent
$70 million defending it. He says his oppo-
nents are pursuing a “scorched earth policy”
in the litigation, contesting even widely held
scientific facts and refusing to settle to avoid
bad publicity and future limits on how much
radiation can be released.
“You win or lose on your experts,” Haber
says. He’s spent millions on experts to prove
that the radiation from Hanford was capable of
causing illnesses, reached his 1,000 clients in
harmful doses and was a “substantial factor”
in causing actual illnesses. “It’s very difficult
to do,” Haber says of the complicated science.
A trial judge threw out most of his expert
testimony, including from two Nobel Prize
winners, he said. But he won on appeal and
the case continues.
Siegel, the Texas attorney, is now working
on a national case alleging that mercury for-
merly used as a preservative in vaccines
caused autism in children. “Here we were in-
jecting 49 percent mercury solution into 1-
year-old brains,” Siegel says.
‘They’re kind of trying to peck
the jury system to death.’
– Charles Siegel
“Marijuana is medicine.”
Siegel says the scientific evidence is on
their side, but the case will still be tough with
the pharmaceutical industry likely spending
millions to defend their huge profits.
Another big hurdle is that court prece-
dents now allow judges to throw out toxic tort
cases before they even reach juries, accord-
ing to Siegel. In the past, juries were allowed
to decide for themselves whether to believe
the defense or plaintiff experts in a case. But
“sometimes juries socked it to corporate
clients,” Siegel says, and defense attorneys
successfully pushed for a new legal standard.
Now, judges often decide the expert disputes
even before the case goes to trial.
The new process has “made it incredibly
more expensive” to pursue toxic torts, Siegel
says. Before, trial lawyers with serious cases
could hope that a corporation might settle be-
fore expensive experts needed to be hired at
trial. Now those experts need to be hired up
front and many plaintiff’s lawyers are de-
terred from risking the huge investment. “It’s
incredibly daunting,” Siegel says.
In Texas, corporations have gone to the
Republican Legislature to make toxic torts
even more difficult. “They’re kind of trying
to peck the jury system to death,” Siegel says.
Mike Axline went from being a UO envi-
ronmental law professor and a founder of the
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