ELR Citation: ELR 20605
No(s). 87-Z-42 (D. Colo. Nov 9, 1990)

The court holds that community members failed to show that a missile manufacturer contaminated their drinking water to levels sufficient to cause injury or that the contaminants caused their health problems. The court first noted that it must preliminarily determine whether expert methodology is the type normally relied on by experts in the field before the evidence may be presented to the jury. The court next ordered a jury to decide which factors should be included in deriving a decay coefficient for toxic chemicals released by the missile manufacturer. The court holds that no reasonable juror could find, based on the expert opinions presented, that it was probable that community members were exposed to the manufacturer's contaminants. The missile manufacturer's failure to keep adequate records of toxic releases does not support an inference of exposure, but permits community members to submit circumstantial rather than direct evidence of exposure to support an inference that it was probable that they were exposed. The direct evidence in this case is insufficient to support a probability that community members were exposed. The court next holds that the circumstantial evidence presented by community members when viewed in its best light, only proves a possibility of exposure. The possibility of exposure is insufficient to establish a probability of exposure. Mere possibilities or conjecture cannot establish a probability. The court holds that community members could have relied on etiological or epidemiological evidence to show that their injuries exhibited characteristics of injuries caused by the toxics at issue or that there was an abnormally high incidence rate of the injuries in their community relative to other similarly situated communities. Community members' experts presumed exposure and testified that the injuries were consistent with such an exposure. However, this evidence does not prove that community members were exposed to the manufacturers' contaminants. The court notes that, where possible, toxic tort cases require submission of epidemiological evidence to establish causation, including situations where an identifiable exposure population is large enough to perform a meaningful epidemiological study.

Counsel for Plaintiffs
John R. Holland
1601 Downing St., 1st Fl., Denver CO 80218
(303) 860-1331

Kathleen Mullen
1601 Downing St., 2nd Fl., Denver CO 80218
(303) 894-0995

Anthony Roisman
Cohen, Milstein, Hausfeld & Toll
1401 New York Ave. NW,Ste. 600, Washington DC 20005
(202) 628-3500

Counsel for Defendants
Daniel S. Hoffman, Daniel J. Dunn
Holme, Roberts & Owen
1700 Lincoln, Ste. 4100, Denver CO 80203
(303) 861-7000