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Warning tag required for Calif. judge In lawsuit over chemicals, court officials showed disregard for fairness


LOS ANGELES - Under California jurisprudence, the burden of guilt apparently stretches longer than the Pacific Coast Highway.

How else can you interpret a Los Angeles judge's recent comments encouraging a jury to force five chemical companies to pay $785 million in damages to defense workers who worked with their products at a top-secret defense facility in Burbank, Calif.?

The workers claimed they were unknowingly exposed to the chemicals because their employer, Lockheed Co., removed the warning labels from the chemicals' containers.

Lockheed never disputed that claim but managed to bail out of the lawsuit in 1992 by settling the claims against it for $33 million.

Not content with the $33 million judgment against Lockheed, the plaintiffs went after the chemical manufacturers - though those companies had no way of knowing how their chemicals were being used at the top-secret, defense-production facility.

The five companies - Exxon Corp., Ashland Chemical Co., Shell Oil Co., E.I. du Pont & Co. and Unocal Corp. - shipped the various chemicals with the federally required warning labels properly attached to the containers sent to a bulk distributor who sold the chemicals to Lockheed with the labels in place.

To maintain the facility's top-secret security, Lockheed apparently stripped the warning labels from the original containers or transferred the chemicals into containers without labels.

That mattered little to Los Angeles Superior Judge Richard Hubbell, who oversaw the proceedings against the chemical companies.

The chemical companies, Hubbell suggested, were derelict because they failed to warn workers about the risks of their products. They should have launched "the Goodyear blimp over the plant," he told the jurors or, at least, placed a billboard nearby with the notice "Call Me 1-800 I'm Toxic."

The learned judge, however, did not explain how the five companies could have trained that kind of a glaring spotlight on a top-secret defense facility without running afoul of national security regulations.

Hubbell was even more one-sided during his instructions to the jury. "Pick a figure," he said, "and say let's send a notice out to the world I. This is the price in Los Angeles County."

The jury complied, piling $760 million in punitive damages atop a compensatory award of $25 million. Though the punitive portion was later halved to $380 million on appeal, it is believed to be the largest jury verdict in California history.

The impetus for the case came from Lockheed Corp.'s decision in the early 1980s to close its 40-year-old military aircraft plant in Burbank, which produced some of the nation's most famous military aircraft, including the U-2 spy plane and the B-17 stealth bomber.

While Lockheed shifted some of the plant's jobs to a newer facility, it laid off many longtime workers. That action uncorked a torrent of workers' compensation claims by employees who said their exposure to a variety of solvents and chemicals caused injuries ranging from rashes to nerve damage to cancer. Defense lawyers pointed out that the same chemicals were used safely at the newer facility without complaints from the workers.

Hubbell also drew fire for allowing plaintiffs' attorneys to present "hired gun" expert witnesses with credentials that often appeared to be weak, if not nonexistent. At least one of the experts had an annual income in excess of $1 million - testifying 50 to 70 times and earning up to $6,000 per day as a medical-legal consultant.

These experts were free to draw broad - and at times absurd - conclusions based on limited scientific evidence. One doctor blamed chemical exposure for causing lung disease in a plaintiff who was a chronic smoker, and he spoke of liver damage in a plaintiff who had been in rehabilitation for alcoholism.

If Hubbell had been a federal judge, such a travesty might have been averted.

Under the Supreme Court's landmark Daubert decision in 1993, federal judges are instructed to take steps to keep unqualified "expert witnesses" from testifying in highly complex cases.

The idea is to prevent attorneys on either side from hiring dubious experts whose testimony might confuse lay jurors unable to distinguish the genuine from the sham.

Daubert was expected to raise the standards for science in the courtroom. But the decision applied only to federal courts and to the state courts that voluntarily adopted it.

California, usually the nation's trendsetter, was one of the states that ignored Daubert. Its consumers could well be short-changed.

A word of caution is advisable in regard to relying too heavily on Daubert, because - while useful in many cases - it has the potential for abuse.

In defining expertise, courts should not get hung up on academic credentials while ignoring experience and knowledge acquired in actual practice. Intellectual biases, after all, can lead some academics to dispense their own brand of junk science.

The important thing is to separate genuine from sham by sifting out junk science before it can influence jury decisions and throw justice off course.

Dr. Brant Mittler is a cardiologist in San Antonio and an assistant consulting professor of medicine at the Duke University School of Medicine. This article was distributed by Knight Ridder/Tribune Information Services.

Pub Date: 12/13/98

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