Poisoned Page 18
“Right,” she said. “Nothing.”
“Let me talk to your husband.”
When she put him on the phone, I said, “Okay, Dan, here’s what we’re going to do. I’m going to get a lawyer for you, so you can sue Holy Cross College for terminating you without giving you workers’ compensation for injury on the job. Is that all right with you?”
“Yes,” Dan said.
“Okay, great. Mind if I talk to your wife again?”
When Laura came back on the line, I told her I was going to arrange for a colleague to work up the workers’ compensation claim. “Can you find out what exact product was used on that floor?”
“Sure,” she said. “I’ll talk to the maintenance guy. He has the stuff in the shed.”
Once I knew what the resurfacing product was, I obtained its material safety data sheet (MSDS)—an itemized list of chemicals it contains. I was shocked to discover that these chemicals included benzene, toluene, and isocyanates, all of which are classified as ultra-hazardous substances in Massachusetts.
Slowly and meticulously, I proceeded to build two lawsuits on behalf of Dan Allen. The first was against his employer, Holy Cross College, seeking workers’ compensation because he had been injured on the job. The second was a lawsuit against the manufacturer of the resurfacing compound.
I arranged for a workers’ compensation expert to file a claim. Next, I contacted a dosing expert I knew at Harvard University, who calculated the chemical dose Dan had been exposed to. Based on our data—including the square footage of the area, the cubic feet of air in the space where the compound was applied, the location of Dan’s office, the doors and windows, and so on—we calculated the exact chemical dose Dan inhaled as a result of the floor resurfacing.
We now had the right pieces in place to prove that Dan’s injury was caused by his exposure to the chemicals used in resurfacing the floor. We knew Dan was in the building when the floor was being refinished with chemicals known to be neurotoxic—in fact, the floor refinishers were required by their employer and Occupational Safety and Health Administration (OSHA) regulations to wear respirators. They had sealed off the area where they were doing the work, but somehow Dan’s office, adjacent to the gymnasium, became part of the sealed area instead of being sealed off. He was therefore working without a respirator in the same area as the toxic chemicals.
Dr. Ratner told me that Dan’s initial symptoms—nausea, headaches, dizziness—made a great deal of sense to her. “We have an area of our brain, called the area postrema, that alerts us to something poisonous,” she said. When toxic chemicals penetrate the nervous system, this part of the brain signals the body to get rid of it by triggering the vomiting reflex. “That’s one of the reasons why people inhaling these chemicals inside buildings report feeling nausea and vomiting as well as dizziness, headaches, and other symptoms.”
• • •
Once Dr. Ratner diagnosed Dan Allen with ALS and the dosing expert from Harvard had calculated the exact dose of the isocyanates Dan was exposed to, I recruited Dr. Mohammed Bahie Abou-Donia of Duke University, a world expert on isocyanates, as a medical expert on Dan’s legal case. Dr. Abou-Donia had conducted research studies exposing mice to the same chemicals used in the flooring compound that caused Dan to fall ill. Like humans, some mice are born with a gene that predisposes them to developing ALS after exposure to certain chemicals.
The result? Basically, his studies proved that mice with the gene developed ALS after chemical exposure, while the animals without the gene stayed healthy. Dr. Abou-Donia concluded that it wasn’t the coach’s fate to develop his fatal disease. Like Dr. Ratner and me, he believed that Dan’s exposure to isocyanates triggered his onset of ALS.
Like all diseases, whether you get ALS depends on a combination of your genetic predisposition toward the condition combined with environmental triggers, including chemical exposure. ALS usually affects older people, he explained. “Although you can see it in younger people in their forties and fifties, it’s rare.” Dan was only in his mid-forties.
“We know chemical exposure can alter the DNA of a human being,” Dr. Abou-Donia said, “and make people more susceptible to disease, causing up-regulation and down-regulation of many genes that cause disease.”
What does this mean in layman’s terms? Each of us begins life with a particular set of genes—about twenty thousand to twenty-five thousand of them. Scientists are gathering evidence proving pollutants and chemicals are altering our genes—not by mutating them but by sending signals that switch them on when they otherwise might remain dormant, or even “silence” the genes altogether. Exposure to gene-altering substances can lead to disease long after the toxic exposure is gone, permanently injuring glands, organs, and cells throughout your body. Animal studies show that some environmental chemicals cause epigenetic changes that trigger breast and prostate cancer, obesity, diabetes, heart disease, asthma, Alzheimer’s, Parkinson’s disease, learning disabilities—and ALS.
When genes are turned off due to chemical exposure, they can’t direct the manufacture of proteins essential for healthy cell function. Chemicals can also cause chromosomes to uncoil and genes to “express” or be “turned on,” when they otherwise might have remained dormant. Dan’s brain chemistry had been altered on a cellular level by his exposure to the toxins used to resurface the gym floor, causing his onset of ALS at a tragically young age.
Dr. Abou-Donia believes that chemical exposure is one of the primary causes of today’s chronic diseases like asthma, autism, birth defects, cancers, developmental disabilities, diabetes, endometriosis, infertility, Parkinson’s, Alzheimer’s, and others. In his 2015 textbook, Mammalian Toxicology, he cites statistics that should terrify us all, like this one: “In 1900, US chemical consumption was less than 100 million metric tons, but by 2000 this had increased to more than 3.3 billion metric tons.”
In his estimation, there are over five million man-made chemicals, of which only seventy thousand are in commercial use today, with many more to come. The methyl isocyanate that Dan was exposed to was also linked to thousands of human deaths in 1984 after the explosion of a chemical plant in Bhopal, India, owned by the Union Carbide Company. Yet somehow this chemical is still finding its way into our everyday products.
• • •
With my experts on board, I had the scientific support necessary to prove this case. Next, I needed legal boots on the ground in Massachusetts to walk the case into the courtroom. I recruited Michael Hugo, a well-known attorney who had been a partner in the law firm of Schlichtmann, Conway, Crowley, and Hugo.
This firm had successfully won compensation for victims of a toxic chemical spill in Woburn, Massachusetts. The case was dramatized in the bestselling book and film A Civil Action, with John Travolta, Robert Duvall, and James Gandolfini starring in the movie. The case eventually bankrupted the lead attorney, Jan Schlichtmann. In the eyes of many, this outcome served as a cautionary tale depicting the risks inherent in pursuing complex environmental injury cases. To some, Schlichtmann was a hero, a noble lawyer willing to risk it all for a worthy cause. To others, Schlichtmann was a crazy man.
I didn’t care either way, because Schlichtmann had won, and I would, too.
During the trial, my team presented solid evidence that most human disease and death is the result of the interaction between our genes and environmental exposures. In Dan’s case, the disease was a horrific one that vastly reduced his life span.
Dr. Ratner believes Dan had a predisposition to develop ALS, which made him more sensitive to chemicals. She noted, “Genetic predispositions and past insults to the body, including previous chemical exposures, can make a person hypersensitive to future chemical exposures, which in turn can exacerbate or unmask latent liver, kidney, or neurological disorders like ALS.”
When filing a toxic tort lawsuit, case law requires that the claim be based on science generally accepted by the scientific community. This is called the “Daubert Standard,” the stand
ard used by trial judges to determine whether an expert’s testimony is based upon scientifically valid reasoning or methodology. This standard has been the subject of intense criticism over the years. Plaintiffs’ attorneys claim this restriction bars many worthy claims by disallowing juries to hear cases and denying victims their day in court.
The legal team representing the chemical manufacturing company tried to get Dan Allen’s case thrown out of federal court using the Daubert standard, claiming our case wasn’t based on “sound science.” Dr. Ratner’s testimony was critical to our case because it logically connected the dots.
Up until that point in the legal arena, ALS was thought to be purely genetic. Now, together with my local legal counsel and experts, we were attempting to prove in court for the first time that chemical exposure can trigger the onset of ALS. The Dan Allen case would potentially break new ground.
• • •
On September 24, 2008, United States District Judge F. Dennis Saylor handed down his decision regarding whether the testimony of Dr. Marcia Ratner and other experts could be heard by a jury. The testimony of Dr. Ratner was allowed, as well as that of Dr. Christine Oliver, an assistant clinical professor of medicine at Harvard Medical School, who concluded that Dan Allen had sporadic ALS.
When the judge ruled in our favor, saying we could proceed to a jury trial based on the science involved, the chemical company panicked. They knew the floodgates were open, not only to our lawsuit, but for many more to follow. We had shown in court that chemicals can trigger the onset of a previously dormant disease.
Sadly, by then, Dan had died of the disease, causing heartbreak for Laura and a deep sorrow among all of those who knew and loved this amazing man. The only thing we could say to comfort his family was that we had won the decision, which meant the defense knew their chances of winning at trial were dismal. Testimony from a sympathetic widow, combined with powerful evidence that the chemicals Dan was exposed to caused him to die long before his time, would smash their case to bits. The defense opted to seek a settlement. The case settled in 2009.
For the Allen family, and for us, too, it was a bittersweet victory. While the case broke new legal ground and exposed the truth behind what had really happened to Dan Allen, it couldn’t erase the pain and suffering he and his family had endured.
I was left feeling both triumphant and grief-stricken, but I vowed to keep fighting for those who needed me.
• • •
After the Dan Allen case concluded, Dr. Ratner asked me to lecture her medical school class in forensic neuropsychology at Boston University. I taught them how scientists can help lawyers bring legal justice to victims of chemical injury.
I had no medical degree. But I was able to act as a conduit of sorts. I explained to these young physicians that I was a bridge between their world and the legal arena, and encouraged them to consider environmental exposures when listening to their patients describe symptoms. I called my lecture “The Anatomy of a Toxic Tort Case,” and instructed them that, in toxic tort cases, the two opposing sides are very different.
On one side of a toxic tort case is a defendant, I told them, typically a wealthy individual or corporation interested in the financial bottom line. “These types of defendants can usually afford the best lawyers money can buy,” I said, “and their goal is to prevent a flood of similar claims and protect the finances and good name of the company.”
On the opposite side is the plaintiff, “usually a single victim, or a cluster of victims, who have experienced chemical injury or illness,” I said.
I explained that victims come from a wide variety of racial, economic, political, and cultural backgrounds. “They often know their illness is the result of a chemical exposure, but they usually have little or no proof, because the medical and legal specialists they’ve consulted offer no guidance. Doctors often can’t provide help because they typically have only about six credit hours of training in environmental illnesses throughout their medical education.”
Lawyers, I added, are often poorly trained in this area, and are wary of taking risky and expensive cases.
I also told these medical students that if they did encounter such a patient, they should consider a standard series of questions to probe the truth: Did any aspect of the victim’s environment change near the time of onset of illness? What are the victim’s symptoms? When did they appear? Could any other independent factors have caused the symptoms? Are there any environmental clues? Were any other people in the victim’s life—especially in the victim’s family—also ill with similar symptoms?
Once I’d finished, Dr. Ratner told me she appreciated me talking to her medical students, because my personal story put a face on this massive silent epidemic that all physicians struggle with.
“As scientists, we can’t reject victims of environmentally linked disease,” she said. “You can’t say it’s not happening when we know it is. If we can better appreciate these patients and help them recover, that’s huge.”
In her view, chemicals are an essential part of our society because many enhance our quality of life. However, we must innovate ways to live with chemicals more safely, she said, harnessing their benefits while minimizing the risks they pose to human health.
It was a surreal experience: in the past, as a patient, I had gone all over the United States, desperately trying to find help from various doctors. Now, I was standing in a classroom and teaching physicians how to help other victims. For me, the opportunity to address medical students provided a new kind of high.
I was an ordinary guy, but I’d been thrown into an extraordinary fight. I relished the challenge.
16 • BLACK MOLD BREAKS A MOTHER’S HEART
ASHLEE WAS DEEPLY WOUNDED WHEN her mother abandoned her. As Dan Allen’s case wound its way through the legal system, I was doing my best to raise my daughter as a single parent.
After making the permanent move to my home in California, Ashlee started attending a public middle school in our neighborhood. When she had trouble reading, I found her a tutor and her grades soared. When she began eating to comfort herself and told me how unhappy she was about this problem, I found her a therapist and a personal trainer.
Probably the biggest challenge we faced together, though, happened when Ashlee started ninth grade. I sent her to the local high school, and some of the students there were skinheads, the children of soldiers stationed at the nearby military base. When they found out Ashlee was Jewish, some of these kids began threatening to put her in an oven “and burn you like Hitler fried those other Jews.”
Ashlee was terrified, understandably—she had never experienced anything like this—and I was furious. I went to the principal, who suggested that I transfer my daughter to a different public high school. “Maybe she’d fit in better there,” he suggested.
“Wait a minute,” I said. “My daughter’s the victim here. You know who the perpetrators are. Yet you’re telling me you’re not throwing those kids out of school? You want to punish the victim instead?”
I was livid. But with Ashlee begging me every day to send her to a different school, I knew the best thing for my kid was to get her out of there. Ashlee had enough to deal with already. She was very fragile, and I was worried about her.
We began touring all of the private schools in the area. Finally, Ashlee chose a small, private school where she immediately felt comfortable. This was a warm and loving community that felt like a safe nest.
I saw the metamorphosis take place in Ashlee almost immediately. Before, she was unable to excel at her studies in public school because she was being bullied. Now she could relax, focus, and be herself. Her new school highlighted the importance of an independent mind, empathy for others, and thinking “outside the box.” By sophomore year, she started to view the world with a much broader, deeper perspective. It was as if I’d put her in a place where her wounds could heal and melt away.
The next legal case I became enmeshed in really hit home because of my
devotion to Ashlee’s well-being: it involved a parent’s broken heart.
• • •
In 2003, two-year-old Neveah Lair was hospitalized several times near her home in Bakersfield, California, for flu-like symptoms. Before then, Neveah had been a happy, healthy child. Doctors couldn’t find any cause for the little girl’s recurring illness.
Her mother, Jessica, believed Neveah’s problems sprang from the black mold that plagued their apartment complex. Jessica told the complex’s property manager about her concerns several times, but the management company refused to address the problem. On the morning of February 29, 2004, Jessica walked into her daughter’s room to get her ready for the day. Neveah was dead.
The coroner listed the little girl’s cause of death as pneumonia. Jessica, however, didn’t believe that was true. She vowed to prove that the mold in the apartment was responsible.
Jessica found me through the Environmental Health Foundation in late 2004. She was devastated by her daughter’s death and wanted to know if I would help her and other tenants of the apartment complex prove their management company was negligent by ignoring their complaints about black mold.
“All the doctors I’ve seen tell me mold is natural, there’s nothing wrong with it, and it doesn’t hurt anybody,” she said. “They’re telling me my kid didn’t die from mold. But I have another kid who’s sick now. Can you help me and the other tenants?”
“I’m not sure,” I said. “How many moms and kids are involved?”
“A lot,” she said.
“Okay. Why don’t you have some of the others give me a call.”
Some of the tenants followed through and called me. The more I talked to them, the more convinced I became that Jessica was right: black mold was making these people sick.
By then, if the right case walked in the door, I knew exactly what to do. My own health was still fragile enough that I often didn’t position myself as the attorney on the front lines. With the Dan Allen case and others, I learned that I could efficiently participate long distance.