Image © Alex Sholom
As Expert Witnesses we all see cases that we think are interesting. We would not take them on if they were not of interest to us personally, and within our compass of expertise to deal with. To others these cases may not seem to be as fascinating, but they all have lessons for each and every one of us to learn from these experiences.
This case involved a man aged 40, who alleged he had been poisoned by a substance, some 10 years previously, following a possible exposure of a few hours a day, over a period of a month. This substance could be carcinogenic if inhaled, producing lung tissue lesions over a period of time. One question that our expert was asked over and over again by the appellant’s legal team, was how long could this period of time be? After all, mesotheliomas can appear 20 to 30 years after exposure.
Our expert had to become the world’s most informed person on every aspect of this material, as the case was going to be heard some months hence in a Western Court. Our expert was instructed by the employers of the man involved, as they wished to defend the claim, that this man had been unable to work normally for the intervening 10 years, and he was claiming loss of earnings, which was a considerable sum, for that period of time.
Where to start? Well where would our appellant have found information that this substance could have affected him for 10 years? Wikipedia is interesting in this type of case and always worth an initial read. To defend such an allegation however requires specialist knowledge and where to find it. Proof is required to support any statement made, and as we know this is a long and arduous task. This substance had a reputation going back long before the start of the Internet. Those who write dissertations for higher qualifications are always being told, especially by me, that you need to read real books, in real libraries, and look up the references in such books, to get the true history and story.
This chemical had been used in the metal industry for 70 to 80 years. There were documented cases of lung cancer attributed to this chemical in the late 1940s. The very long literature search showed that the last cancer case to be written up was in early 2016, in a person working in the metal industry in the Far East. Most journals of occupational medicine and industrial medicine around the world are available in English, and one quickly learns to put the right words into the various search engines when using the Internet.
On the world wide evidence available, no one had developed a lung tumour or any other lung complication from this chemical after a period of 6 to 9 months.
Our appellant was complaining of fatigue, skin irritation, rhinitis, an inability to concentrate, and an upset stomach, which needed a special diet. He also complained of a loss of libido, all during and after a period of 10 years. The Internet describes that all of these signs and symptoms could be attributable to the chemical under investigation.
He was medically examined by our expert. He looked very fit. He was well nourished, and was very alert. He did however have an allergic rash on his chest, with general dermatographia. It was at this point, that months of investigation and hard work, were taken over by animals. He was asked if he had any pets. He stated quite proudly that he and his partner had taken in stray cats for many years. They had three at the moment. The scratch marks on his chest looked feline. Do you cuddle your cats? Oh yes he said, and sometimes they do not like it and try to get away. His claim suddenly weakened. He had not connected the cats to his allergic symptoms. No one found in the literature search, who had suffered with allergic symptoms, had complained for more than a few months, even after a fairly heavy exposure. He was not told any of this. He had made his statement to the Court. At the time of the medical examination it had not been available, and so had not been read. The examiner was therefore not biased in any way.
His intimate relationship with his partner was fine. He had fathered a child with a previous partner in the time frame, so libido was not discussed any more. He had been thoroughly investigated for his stomach symptoms, gastroscopy, colonoscopy etc. and IBS had been mentioned. It seems that whatever investigation he asked his GP for, it was done. It was his GP who had said he was probably suffering from the effects of his exposure to the chemical, as there seemed to be no other explanation. There were however, no recorded cases of IBS in anyone who had accidentally ingested the substance since it was first used. There were no reports of any chronic gut inflammation or tumours.
As to his actual exposure, there was some vagueness. He stated he had seen a bag possibly containing the stuff lying around, and that the ground where he worked he was sure had been contaminated.
The Company had in fact cleaned up the site before he arrived, as there had been some spillage in the past. However once again animals proved a point about possible exposure. The appellant’s love of animals did not help his case. He was asked about the health of the other people who were there with him. Did anyone else become unwell. Did anyone have a cat or a dog. Had he seen any rats, mice or birds on the site. No one apparently had reported any illness of any sort to his knowledge, but there was a dog.
The dog lived permanently on the site where he had worked, and it had given birth to seven puppies almost on the day he arrived. At no time whilst he was there did a single puppy die, or become ill. When he left some 5 weeks later, all the dogs were well and running around everywhere. Had the ground been contaminated, at least one of those puppies should have been affected.
Our expert wrote his report and gave his evidence to the court. The fact was stated that there was not a single case written up anywhere in the world, of anyone exposed, suffering from anything described, 10 years later. When challenged as to whether it was still a possibility that he could still develop some condition after all this time, the answer was, that based on all the evidence available to date, no, it is not possible. How can you be so sure? The answer was that if no one anywhere in the industries that used this material all the time and who had a much higher, more constant exposure had developed symptoms, then this person’s minimal if at all exposure, was certainly not going to produce any signs or symptoms after all this time. This view was accepted and the case was settled in favour of the employer. No appeal has been lodged.
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