FACS Scientist Serves as Expert Witness in Personal Injury Lawsuit

A university employee brought suit against a construction company. He claimed improper storage of dirt during an excavation project caused him to contract an infectious fungal disease. The attorneys for the defendant asked FACS to advise them on the case and prepare an expert witness declaration concerning the nature of the fungus and the mode of infection.

Key Results

FACS expert testimony helped convince the trial court rule in favor of the defendant

The case was decided by a summary judgment process, saving the expenses of a trial

The plaintiff appealed the decision, but the judgment was affirmed by that court as well

About the Client

Law firms often call on FACS for help in environmental health cases where litigation is involved. This case study describes a situation where the firm’s client was accused of neglecting to control dust from a storage pile, resulting in a serious health problem for the plaintiff.

The Problem

The attorneys for a construction company needed help understanding the nature of a rare infectious fungal disease (coccidioidomycosis). A university employee brought suit against their client, a building contractor, for stockpiling dirt from a construction project adjacent to his office and failing to properly contain dust from the storage site.

In this case, the approximately 1,600 cubic yards of dirt were piled just a dozen or so feet from the employee’s office, and the contractor had admittedly not followed local regulations concerning dust control. The insurance carrier for the university had already accepted the employee’s claim for worker’s compensation. Surgeons removed a portion of the afflicted man’s lung to control the infection. The lawsuit filed on behalf of the injured worker and his wife alleged negligence and loss of consortium.

Polychlorinated biphenyls (PCBs), for example, had leached into the concrete blocks surrounding window openings. That situation required the development of a special method for abating the hazard without spreading dust from the contaminated portions of the blocks during demolition.

Other contaminants found on the site included deposits of asbestos, lead-based paint, lead shielding, and mercury.

The FACS Solution

FACS responded by assigning a subject matter expert to investigate. The FACS approach to legal matters is to apply sound science to address the key points of the litigation. Whenever possible, FACS helps clients, attorneys, judges and juries understand the relevant science in the context of the issues involved in the case, which can help resolve matters early in the process and avoid the costs associated with extended legal battles.

In this case, the FACS expert advised the legal team that it would be scientifically impossible for the plaintiff to prove the defendant was liable for the infection given the available evidence. Based on that assertion, the lawyers asked for a summary judgement in the matter and retained FACS for expert testimony in the form of a declaration.

The case for the plaintiff was supported by testimony from his treating physician, a licensed general contractor, and a certified industrial hygienist hired to help prove the case.

The court ruled that the argument for the defense, based on FACS experience and research, reasonably withstood those claims. The plaintiff asked for a review by the Court of Appeals, where the opinion again sided with the defendant.

The appellate court found the FACS expert to be “a well-qualified and highly educated scientist experienced with the issues of environmental infectious diseases and possible means of exposure [whose job it is] to anticipate, recognize, evaluate, and control health safety hazards faced by people at work or in their communities.”

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