Toxicology is the study of the adverse effects of chemical, physical or biological agents on living organisms and the ecosystem. It also includes?the prevention and amelioration of those adverse effects.1 Toxicologists can be essential experts in drug liability cases, environmental toxic torts and food poisoning cases, to name a few. Most KJA members, however, may encounter cases with forensic toxicology needs with facts implicating drug and alcohol use. Few things can affect an injury case more than the intoxication of someone involved. Drunk or drugged drivers can expect little sympathy from a jury—punishment perhaps more likely due instead. Likewise, the impairment of an injured passenger, pedestrian or bicyclist complicates the case—sometimes substantially. The more that the involved person is impaired, the worse it seems it may be for that person with a jury. Should this be the case, a forensic toxicologist may provide a much-needed boost to the cause.
What can the Toxicologist Do For You?
The Society of Forensic Toxicologists defines this expert as a scientist engaged in the analysis?of biological tissues and fluids for drugs and/or poisons and who interprets the information generated from these analyses in a judicial context.2 Engaging a toxicologist can help to both investigate a claim in consultation, and, of course, assist at trial. Such an expert may be able to provide support to the case with respect to numerous case issues, including:
- The effects of a particular drug on judgment, the senses, critical thinking skills, reflex and response times, motor skills, etc.
- The effects of drugs and/or drugs and alcohol, in combination. Combinations of legal or illegal drugs, with or without alcohol, produce varying types and degrees of intoxication. For instance, cocaine and alcohol combine to form cocaethylene, a substantially different drug than either alone. Cocaethylene produces a substantial increase in euphoria in excess of that of cocaine. It is suspected to increase risk of sudden death, and has a longer duration of action in the brain, per the National Institute of Health and its National Institute of Drug Abuse, than cocaine without alcohol.
- The duration of time that alcohol or drug ingestion will yield intoxication and impairment of an individual. Some substances will no longer be active to produce impairment despite being present in detectable amounts in blood, hair or urine samples. Blood test results may be skewed due to the timing of the blood drawn. Other considerations, including medical conditions such as diminished organ function, specific to the individual in issue, may also affect impairment and resulting blood levels. People with diminished liver or kidney functions may take much longer to eradicate a drug from their systems—resulting in an otherwise unexpected accumulation of a substance in their systems.
- Testing procedures and protocols. Some tests are more reliable than others. Some will detect the presence of a substance, but cannot quantify how much of the substance was present. This may prohibit testimony as to impairment of the individual, and could lead to suppression of the expert’s testimony or as to the testing in general. The toxicologist may further be able to explain how or why a false result could yield from a particular testing procedure, or simply help to keep test results out of the record due to concerns with the chain of custody or other protocols.
- The toxicologist may be able to explain a case that otherwise makes no sense. Consider an unexplained loss of consciousness in a driver, or perhaps a driver leaving the roadway without mechanical failure or a sudden emergency. A driver’s prescribed medications, supplements, or diet may combine to produce the medical problem that resulted in or contributed to an accident. Consider the case of grapefruit juice—consuming it while taking some prescription drugs can lead to a spike in concentration of the drug in the system.
- “Compensation” may also be an issue—though it may be a somewhat discomforting theory for counsel to explain to one’s jury.?A person’s familiarity and regular drinking or drug use might help to explain that a person was less functionally impaired than blood tests might lead one to believe, due to?his or her ability to compensate for the presence of the substance. This may be tantamount to arguing, “My client is such a regular drinker that he’s gotten good at it—functioning better when intoxicated than a novice,” yet that might be all one has to explain an otherwise uncontroverted high blood alcohol content. However, when one is a chronic alcoholic, such person may conversely experience greater impairment from a small amount of alcohol than the occasional drinker may.
Intoxication Issues Affect More Than Liability
Intoxication can affect a case in many ways in Kentucky:
- A defendant’s intoxication relates to liability and the character of damages that may be recovered in an action. In addition to compensatory damages, punitive damages can be awarded against the intoxicated driver under a theory of gross negligence. See Williams v.Wilson, 972 S.W.2d 260 (Ky.,1998).
- The particular conduct of the insured may impact insurance coverage. Particular attention to policy exclusions should be made. Policy language may attempt to reduce or exclude coverage when intoxication is involved. See Hodgin v. Allstate Insurance Company, 935 S.W.2d 614 (Ky App., 1996).
- Whether or not the defendant was under the influence of drugs or alcohol when operating a motor vehicle also determines whether a judgment resulting from that impairment is subject to discharge under the Bankruptcy Code. See 11 USC Sec. 523 (a)(9).
- Comparative negligence considerations loom over the plaintiff. The drunken plaintiff, or the drugged plaintiff, is, at best, a complicating factor in any given case. At worst, it may leave no case, excepting, perhaps, one AGAINST the intoxicated plaintiff!
Credentialing of Experts in Toxicology
Forensic toxicologists can have many different specialties and back- grounds. Some are physicians, with specialties in forensic medicine. Non-physician experts similarly can have different backgrounds—some have degrees in biochemistry, pharmacology, toxicology, environmental sciences,?or related specialty fields. Desirable credentialing for the non-medical doc- tor may require the expert to possess?a PhD in his or her particular field?of expertise. Be careful, however, to consider whether the particular matter at issue in your case may require testimony from a medical doctor if giving opinions on medicine in Kentucky.
A number of industry resource organizations also exist. The Society of Forensic Toxicologists, the International Association of Forensic Toxicologists,3 and the American Board of Forensic Toxicologists are non-profit entities promoting the science of forensic toxicology. Board Certification exists for toxicologists as well as testing labs by the American Board of Forensic Toxicologists4 and the Academy of Toxicological Sciences.5 These organizations have different, and some liberal, membership criteria.
As always, when engaging an expert, be advised to seek references from fellow KJA members or other counsel having previously worked with the expert. Use the KJA’s list-serve to network and discover helpful information about the person under consideration. Request references?and background information on any expert with whom you are interested in working. Confirm the pertinent schedule of fees and document terms concerning payment and billing before engagement. Clearly convey your case timetables with respect to discovery and trial, and leave ample time for the scheduling and preparation of this expert for his or her discovery and trial depositions. Remember, experts can make or break your case.6 Choose wisely!
1 This definition is provided by the Society of Toxicologists: www.toxicology. org.
2 The Society of Forensic Toxicologists: www.soft-tox.org.
3 The International Society of Forensic Toxicologists: www.tiaft.org.
4 The American Board of Forensic Toxicologists: www.abft.org.
5 The Academy of Toxicological Sciences: www.acadtoxsci.org.
6 This installment of Expert Advice is an update and supplement to a topic originally appearing in the July/August 2004 Edition of The Advocate.
(Originally published in the March/April 2009 issue of The Advocate)