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Multimedia Exposure Modeling in the Courtroom

April 1999

Citation: ELR 10185

Author: Rolf R. von Oppenfeld and Mark E. Freeze

Editors' Summary: The increasing number of toxic tort lawsuits in the courts today causes litigants to use a vast array of scientific methodologies and exposure models, which in turn add to the already high level of confusion among attorneys, judges, witnesses, and juries in the toxic tort courtroom. As a result, toxic tort lawyers must become experts in several scientific disciplines and be thoroughly familiar with state-of-the-art scientific data and studies in order to convince courts to exclude as much of their opponents' science — and to admit as much of their own science — as possible. This Article addresses the role of exposure modeling in establishing or refuting claims in toxic tort litigation that exposures to toxins have caused or increased the risk of illness or injury. The Article illustrates the delicate balance that a lawyer must consider when attempting to meet the increased role for lawyers established under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 23 ELR 20979 (1993), when presenting complex scientific evidence to jurors. The authors begin with an overview of toxic tort litigation and then examine various factors, methodologies, and uncertainties that litigants must take into account when performing exposure assessments and formulating trial strategies. The Article closes by discussing the courtroom presentation of exposure models and other scientific evidence.

The authors are members of the "Team for Environmental, Science, and Technology Law" or "TESTLaw" Practice Group, a national environmental law practice within the law firm von Oppenfeld, Hiser & Freeze, P.C., with regional offices in Phoenix, Arizona, and Columbia, South Carolina. Rolf R. von Oppenfeld practices primarily in the areas of environmental law and litigation. Mark E. Freeze has extensive experience in Comprehensive Environmental Response, Compensation, and Liability Act and toxic tort litigation.

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