Birth Defect Lawyer Blog

One year after the BP oil spill into the Gulf of Mexico, New Orleans residents are still wary of eating seafood. Although government regulators have declared that seafood from the Gulf is safe, many fear that hydrocarbon oil contaminants, which have been linked to cancer and other diseases, are still present.

The Deepwater Horizon rig explosion of April 2010 unleashed the largest marine oil spill in history. The deep sea wellhead gushed 4.9 million barrels of crude oil (an estimated 53,000 barrels per day) before it was finally capped in July 2010. The oil spill caused unparalleled damage to local industry and the environment. In November 2010, over 4,000 square miles of the Gulf were closed to shrimping because shrimpers found tar balls in their nets. Those with direct exposure to the spill -- first responders and residents along the Gulf Coast -- have reported symptoms ranging from nausea to chest pains. Already there has been an increase in the number of reported miscarriages and babies born with malformed hearts. However, the health effects of consuming Gulf seafood remain unknown.

In addition to oil particles, the Gulf also retains residue of the dispersant BP used to clean up the spill. The dispersant Corexit was criticized for being highly toxic and for mixing with oil to create a pollutant even more deadly than the oil alone. On April 20, 2011, a little over 1,000 square miles were finally reopened for commercial and recreational fishing. The FDA and National Oceanic and Atmospheric Administration (NOAA) found that 99% of the samples contained no dispersant residues or oil-related compounds. New Orleans restaurant owners and chefs have been urging customers to return on the basis of these findings. But the problem is not with local residents alone: a USA TODAY poll found that 59% of those surveyed would not consume Gulf seafood.

More than 130 lawsuits have been filed as a result of the oil spill, many of them class action complaints that accuse BP of ignoring basic safety procedures. The federal government joined them last month, seeking unlimited penalties under the Clean Water Act and Oil Pollution Act. BP created a $20 billion "spill response fund" to address residents' damages claims, but it does not cap BP's liability. It is easy to imagine that more claims will arise as more people are affected by the oil spill, including those from thousands of miles away who consume Gulf seafood. If you believe that contaminated Gulf seafood may be responsible for your cancer or your child's birth defect, you have the option of filing a negligence lawsuit against BP, as well as the seller. You could claim that these companies breached their duty to you -- BP by ignoring safety procedures, the seller by failing to remove contaminated seafood. The difficulty might be in proving that BP had a duty to you if you lived miles from the Gulf Coast. You would also need to prove causation, that the negligence was a direct or proximate cause of your injury. This would be easier if there were others in your situation who had experienced similar injuries. But such evidence may not be available for months, if not years.

Continue reading "A Year After Oil Spill, Gulf Coast Residents Reluctant to Eat Seafood" »

New research presented in Turkey suggests that cell phone radiation disrupts memory, harms fetal development, and weakens resistance to environmental toxins. In a series of studies, scientists working for the Environmental Health Trust tested cell phone radiation on pregnant rabbits and male and female mice and rats. They discovered that non-ionizing radiation, from both cell phones and the base stations that broadcast cell phone signals, could damage cells other than by the heat it generates. The findings will likely be controversial, because until now, scientists have claimed that cell phone radiation does not have the power to cause cancer or change DNA.

In one study, scientists exposed mice to two hours a day of radio frequency emissions through a cell phone transmitter. Afterward, the mice were less able to learn and rerun mazes, suggesting that their spatial memory had been impacted. In a second study, the brains of male rats were found to be vulnerable to 20 minutes of radio frequency radiation from cell phones. More toxins permeated the barrier between the bloodstream and brain than are normally allowed. Finally, a study of pregnant and non-pregnant rabbits found that six minutes a day of cell phone radiation was enough to release free radicals into their bloodstream, damaging DNA and fat molecules.

These studies will help the International Agency for Research on Cancer (an agency of the World Health Organization) decide whether radio frequency electromagnetic fields from cell phones cause cancer. In 2010, the agency decided to do further research after evidence emerged that brain cancer was more common among heavy cell phone users.

If you believe that you have cancer, or that your child has a birth defect, as a result of cell phone use, you have options. Your best option may be to seek an action in tort against the cell phone manufacturer and service provider. This can be done by filing a products liability lawsuit, claiming that your cell phone was inherently unsafe. You would need to show that the manufacturer was strictly liable because the cell phone either had a defect or a design flaw, permitting harmful amounts of radiation to be emitted from the phone. You could also prove that the manufacturer was strictly liable through its failure to provide a warning label alerting customers of potential dangers.

The challenge would lie in proving causation. Even after 10 years of research, the International Agency for Research on Cancer was still unable to prove conclusively that cell phones cause cancer and other deformities. However, as research of the type presented in Turkey emerges, the causal connection may become clearer. You would also have an easier time if there were others with the same brand of cell phone suffering from similar problems. Then you may be eligible to form a class-action lawsuit. Other options for relief include suing the manufacturer for breach of warranty. This may be more difficult, though, because breach of warranty requires privity -- a direct relationship -- between the manufacturer and the consumer. Most consumers purchase their cell phones at retail stores and never deal directly with the manufacturer.

Continue reading "New Research Links Cell Phones to Cancer, Birth Defects" »

Actress Jessica Alba gave the movement for safer chemicals a boost this week when she lobbied Congress on Capitol Hill to pass the Safe Chemicals Act. Alba has partnered with the Safer Chemicals, Healthy Families coalition, which has been working to remove toxic chemicals from homes and offices. The Safe Chemicals Act would be the first major upgrade of the country's toxic chemical management system since the 1976 Toxic Substances Control Act. It would lift the burdens that prevent the EPA from testing thousands of chemical substances. It would also require that the EPA immediately reduce exposure to the most toxic chemicals, promote safer alternatives, and provide a database of chemical information for the public.

In lobbying for the Safe Chemicals Act, Alba cited her concerns as a parent. Being pregnant changed her entire view of what was healthy and safe. She noted that diet and lifestyle had a tremendous impact on a baby's development, and was stunned to learn that common chemicals received little to no regulation. Now pregnant with her second child, Alba urged Congress to ensure that chemicals did not cause more cases of birth defects.

The Safe Chemicals Act was introduced in April 2011 by Senators Frank Lautenberg (D-NJ), Barbara Boxer (D-CA), Amy Klobuchar (D-MN), Al Franken (D-MN), Charles Schumer (D-NY). Whether it will attract enough support to pass both houses of Congress remains to be seen. However, Alba's star power might provide the bill with enough public awareness to give it the necessary boost.

Environmental chemicals have been linked with 10% of all birth defects. Birth defects may include everything from lower IQs to congenital heart disease. If you believe that your child's birth defect may be linked to environmental chemicals, you have the option of filing a toxic tort lawsuit against the chemical manufacturer. In a toxic tort lawsuit, you could argue both that the chemical manufacturer was negligent and that it was strictly liable for creating an unsafe product. Under the negligence theory, you would argue that the chemical manufacturer owed you a duty to create a safe chemical, and through lack of care, created a chemical that was dangerous. Under a strict liability theory, you could argue that the chemical manufacturer was liable even if it was not negligent because the chemical had a defect or a design flaw that made it unsafe. Because the causal connection between chemicals and birth defects is not often clear, this can be a challenge.

If other parents have children with birth defects linked to the same chemicals, you may be eligible to form a class-action lawsuit. With a class action, potential members of the class receive notice of the lawsuit and are given the opportunity to join or "opt out." Those who join are entitled to share equally in the award, which is usually damages, but may also be equitable relief such as an injunction. Administrative agencies such as the EPA also work to ensure that the environment remains safe. The EPA's Office of Compliance and Enforcement specifically oversees compliance with air, water, and land laws.

Continue reading "Jessica Alba Urges Congress to Pass the Safe Chemicals Act" »

A recent study by researchers at the Cancer Prevention Institute of California and Asian Health Services found unsafe levels of chemicals in nail salons that may pose health risks to salon workers. Researchers found harmful levels of tuolene, a chemical which has been linked to endocrine disruption, birth defects and reproductive damage, in many nail salons. Methyl-methacrylate, a chemical banned by the FDA since 1974, was also detected in three out of the 20 salons studied. The study has been published in the American Journal of Public Health.

Researchers recruited 80 salon workers, all Vietnamese women, to be part of the study. Each participant had a monitor attached to her collar, which would then measure the levels of toluene, ethyl acetate, and isopropyl acetate at the salon. The study researchers discovered that on average, toluene levels were 0.15 parts per million, almost two times the safe level recommended by the California Environmental Protection Agency for indoor air. The researchers also detected notable levels of methyl methacrylate in three of the salons studied. In addition, the participants were asked to fill out a questionnaire identifying any health problems they had experienced while working. The most common health complaints were irritated eyes, skin, nose, throat, nausea, and respiratory problems like shortness of breath and coughing. "This really explains why we have been hearing from salon workers about the health problems that they have," said Thu Quach, PhD, MPH, study author and researcher at the Cancer Institute of California.

Though Quach's research focused on salon workers in California, Vietnamese salon workers have reported health problems in other areas such as Houston, Boston, and the Pacific Northwest - suggesting that this is not just a regional but a nationwide issue.

When an employee develops an illness or injury due to chemical exposure at work, one option is to file a claim for worker's compensation. Generally, the plaintiff will need to prove that the chemical exposure happened as a result of his or her job duties, and that the chemical exposure directly caused the illness. Another option is to file an occupational toxic tort case, which is not brought against the employer but against third parties such as the manufacturer of the chemicals, or the owner of the premises where the chemical exposure occurred.

Continue reading "Chemicals Pose Risk to Nail Salon Workers" »

A new Danish study published in the Journal of the American Medical Association found that using newer, second-generation antiepileptic drugs seemed to cause no increased risk of birth defects. The study, conducted by epidemiologists Ditte Molgaard-Nielson and Anders Hviid of the Statens Serum Institut in Copenhagen, used Denmark's health registries to study 837,795 live births from January 1996 through September 2008.

However, according to WebMD, one major limitation of the study was that it did not include many women who were taking the medication Topamax (topiramate). Only about 100 out of the 800,000 women in the Danish registry had taken topiramate, said Hviid. "We cannot conclude anything or make any recommendations on [Topamax], based on this study."

The most common drug taken by women in the study was Lamictal (lamotrigine), and the birth defect risk from this drug was found to be only a little higher compared to women who were not taking any epilepsy drugs. About 1000 women in the Danish study took Lamictal, about 400 took Trileptal (oxcarbazepine), about 60 took Neurontin (gabapentin) and about 60 took Keppra (levetiracetam). Some women studied were taking more than one epilepsy medication. 3.2 % of infants whose mothers were taking one of the drugs in early pregnancy were born with major birth defects, compared to 2.4% of infants whose mothers were not taking any antiepileptic dugs. About 4.6% of babies whose mothers took topiramate and 3.7% to 4% of babies exposed to Lamictal were born with major birth defects.

In March, the FDA issued a stronger warning that using Topamax early in pregnancy could lead to a higher risk of delivering babies with cleft lip and cleft palate. The FDA warning cited new drug registry data that associated Topamax with a 16-fold increase in birth defect risk.

NYU professor of neurology and epilepsy specialist Jacqueline A. French, MD, said to WebMD that the new Danish study was somewhat reassuring, but that studies based on registries of women taking the drugs are more informative. "The findings are reassuring because if the rates of fetal malformation were as high as with Depakote, even with the small sample sizes in this study we would see it...But the findings are not reassuring enough to say that we are out of the woods with all of these drugs."

In birth defect lawsuits, an important issue is the admissibility of scientific evidence to show that a particular medication caused the plaintiff's birth defects. Federal courts follow the Daubert standard (from the case Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 [1993]) to determine whether expert scientific testimony is admissible. Under this standard, courts use several factors to decide whether to admit expert scientific testimony: whether the theory or technique used by the expert is generally accepted in the scientific community; whether the theory or technique has been subjected to peer-review and publication, whether it can be or has been tested, and whether the rate of error is acceptable.

Continue reading "New Epilepsy Drugs May Have Lower Birth Defect Risk" »

This post is a follow-up to our April 22 entry, "Recent Studies Link Prenatal Pesticide Exposure to Lower IQ." Three recent studies have found that prenatal exposure to pesticides known as organophosphates is linked w/ lower IQ scores in the children at age 7. Organophosphates are commonly used in agriculture and also in home gardens.

The study from the U.C. Berkeley School of Public Health found that for every tenfold increase in organophosphate exposure, there was a 5.5-point drop in children's IQ scores. Brenda Eskenazi, lead author and U.C. Berkeley professor of epidemiology and maternal and child health said, "These associations are substantial, especially when viewing this at a population-wide level." Eskenazi added, "That difference could mean, on average, more kids being shifted into the lower end of the spectrum of learning, and more kids needing special services in school."

The U.C. Berkeley study followed 329 children who were enrolled in the Center for the Health Assessment of Mothers and Children of Salinas (CHAMACOS) study, which began in 1999. Researchers took urine samples from the children at regular intervals, starting from when they were six months old to 5 years old. Later on at age 7, the children's IQ was assessed using a standard test which measured the children's verbal comprehension, memory, perceptual reasoning ability and processing speed.
The second study, which was conducted at New York's Mount Sinai Medical Center, found that organophosphates significantly affected children's reasoning abilities. The third study, conducted by Columbia University researchers, found that pesticide levels in umbilical blood were correlated with lower IQ and memory scores in children.

In a toxic tort lawsuit involving an issue like pesticide exposure, the plaintiff must show both general and specific causation. General causation is a showing that the chemical is capable of causing the type of injury suffered by plaintiff. Specific causation means that the plaintiff must show that the chemical in fact caused the injury suffered by plaintiff. Expert medical and toxicological testimony is crucial in order to prove general and specific causation.

Continue reading "Prenatal Pesticide Exposure Linked to Low IQ in Children" »

A new study reported by Fox News has found that exposure to bisphenol A (BPA) can be dramatically reduced by eliminating packaged foods from one's diet. BPA is a toxic chemical used in manufacturing plastic containers, metal cans, glass jar lids and dental sealants.

The study was conducted by scientists from The Breast Cancer Fund and Silent Spring Institute and was recently published online in Environmental Health Perspectives. Researchers asked 20 participants in five families to eliminate packaged foods from their diets for three days, and provided them with organic food in glass or stainless steel containers. The individuals' BPA levels decreased by an average of 60 percent and a maximum of 75 percent during the three days of the study. When the families resumed their regular diets, their BPA levels returned to their former levels.

During the study, the families were also tested for phthalates (chemicals used to soften plastic) that can negatively affect reproductive development. According to the press release, "DEHP (a phthalate used in food packaging) dropped by an average of 50 percent during the intervention; and the highest exposures dropped by over 90 percent."

"Our study provides clear and compelling evidence that food packaging is the major source of exposure to BPA and DEHP," said Ruthann Rudel, the study's lead author and Director of Research at the Silent Spring Institute. "The study shows that a fresh-food diet reduces levels of these chemicals in children and adults by half, after just three days."

Continue reading "Study Shows BPA Reduced by Eliminating Packaged Foods" »

This post will be a follow-up to our March 23 entry, "New Studies Confirm Topamax May Increase Risk of Birth Defects". Recent studies have confirmed that topiramate (brand name Topamax), a drug prescribed to treat epilepsy and migraines, is linked to an increased risk of birth defects. The most common birth defects linked to topiramate are cleft lip and cleft palate, when the lip or palate fails to properly fuse together during the first trimester of development. The defect can be anything from a notch in the lip, to a groove running along the roof of the mouth and nose. Cleft lip and cleft palate can cause difficulty with talking, eating, and lead to frequent ear infections.

A 2008 United Kingdom study that was published in the journal Neurology found that women exposed to topiramate during pregnancy had a 4.8% chance of having babies with major birth defects, compared to 1-2% in normal population. Women who used topiramate as part of a polytherapy had a 11.2% risk of having babies with birth defects.

In addition, data from the North American Antiepileptic Drug Pregnancy Registry showed a link between topiramate and birth defects. Among women who used topiramate in the first trimester of pregnancy, 1.4% of their babies were born with oral clefts (compared to 0.38% to 0.55% occurrence among women taking antiepileptic drugs and 0.07% to women not taking antiepileptic drugs.) In response to the evidence, the Food and Drug Administration (FDA) released a stronger birth defect warning for topiramate and changed the drug's pregnancy category to D - meaning there is positive evidence of risk to human fetuses, but in some cases the potential benefits of the drug may outweigh the risk. Issued in March 2011, the FDA warning recommended that health care professionals inform women who may become pregnant about the risks of taking Topamax while pregnant.

Continue reading "Studies Confirm Birth Defect Risks of Topamax " »

A UC Davis study published online in the journal Epidemiology found that children who were conceived in winter had a greater risk of developing autism later in life. The study examined the birth records of 6.6 million children born in California between 1990-2002 and observed the children until they were 6 years old to determine whether they had developed autism. Children conceived in March had a 16 percent higher risk of developing autism compared to those conceived in July, while children conceived in December had an 8 percent higher risk. Researchers also found that the chance of a having a child with autism grew from month to month during the winter months (December, January, and February) through March.

"The study finding was pronounced even after adjusting for factors such as maternal education, race /ethnicity, and the child's year of conception," said lead author Ousseny Zerbo, a fifth-year doctoral student in the graduate group in epidemiology in the Department of Public Health Sciences in the UC Davis School of Medicine.

Irva Hertz-Picciotto, chief of the division of environmental and occupational health in the Department of Public Health Sciences at the UC Davis School of Medicine said, "Studies of seasonal variations can provide clues about some of the underlying causes of autism. Based on this study, it may be fruitful to pursue exposures that show similar seasonal patterns, such as infections and mild nutritional deficiencies...However, it might be that conception is not the time of susceptibility. Rather, it could for instance be an exposure in the third month of pregnancy, or the second trimester, that is harmful," said Hertz-Picciotto. "If so, we might need to look for exposures occurring a few months after conceptions that are at higher risk. For example, allergens that peak in the spring and early summer."

The study is a starting point for further inquiry, according to the UC Davis researchers. Other seasonal occurrences that could be a factor are pesticides that are used for household gardening, agriculture, or for home use during the spring months.

Continue reading "Study Shows Children Conceived in Winter Have Greater Autism Risk " »

The American Academy of Pediatrics recently released a policy statement calling for greater regulation to protect children and pregnant women from toxic chemicals. The group cited the fact that children's bodies are far more susceptible to toxins than adults'. The pediatrics group joins a number of other medical organizations, such as the American Medical Association, American Nurses Association and American Public Health Association, who have also called for the U.S. to improve the way it regulates toxic chemicals.

The Toxic Substances Control Act hasn't been updated since 1976, said pediatrician Jerome Paulson of the Children's National Medical Center in Washington, D.C. and lead author of the policy statement. Pediatrician Harvey Kemp, an environmental advocate who was not involved in the policy statement, said that the Toxic Substances Control Act treats chemicals as "innocent until proven guilty," and puts the burden on the government to prove that a chemical is harmful.

According to Paulson, the law has been used to regulate only five chemicals out of 80,000 types of chemicals in use. Though companies must notify the Environmental Protection Agency (EPA) about new chemicals they are using, they are not required to conduct safety test on these chemicals.

Sarah Janssen, senior scientist with the Natural Resources Defense Council, stated that there is growing evidence that toxic chemicals pose real harm to children in their homes, schools, and communities. Three studies published in April found that children who had been exposed to the highest level of pesticides before birth scored lower on IQ tests than other children. Different studies also showed that male infants who were exposed to phthalates (chemicals used to manufacture plastic) in utero had a higher risk of being born with birth defects such as undescended testes.

Continue reading "Doctors Call For Increased Regulation of Toxic Chemicals" »

A study published in the New England Journal of Medicine found evidence of lower cognitive functioning in young children who were exposed to antiepileptic drugs while in the womb. The study was entitled "Cognitive Function at 3 Years of Age After Fetal Exposure to Anti-Epileptic Drugs."

Previous studies on animals had found that fetuses exposed to antiepileptic drugs could develop cognitive abnormalities; however, the effects of these drugs on human fetuses were still unknown. The study observed women between the years 1999 to 2004 who were taking the anti-epileptic drugs carbamazepine, lamotrigine, phenytoin (Dilantin) or valproate (Depakote). Researchers then compared the cognitive functioning of 309 children by the time they were 3 years of age.

The study found that children who had been exposed to valproate in the womb had considerably lower IQ scores compared to those exposed to other antiepileptic drugs. Children who had been exposed to valproate (Depakote) in utero scored an average of 9 points lower IQ than children who were exposed to lamotrigine; 7 points lower than those exposed to phenytoin (Dilantin), and 6 points lower than exposed to carbamazepine. The study also found that larger doses of valproate, were correlated with lower IQ scores. In sum, the study found a significant link between exposure to valproate (Depakote) in the womb and reduced cognitive function by 3 years of age.

The FDA has classified many antiepileptic drugs as pregnancy category D drugs, which means that there is positive evidence of risk to human fetuses. The FDA strongly recommends that pregnant women not use medications in category D unless the benefits of the drug outweigh the risk to the fetus. Many antiepileptic drugs are in pregnancy category D, including Depakote, Dilantin, and Topamax.

Continue reading "Valproate, Antiepileptic Drugs Linked to Lower IQ" »

Infants who were exposed to certain crude oil chemicals in the womb might have a higher risk of developing congenital heart disease, according to new research that will be presented at the Pediatric Academic Societies annual meeting in Denver, Colorado.

The new data found that ethyl benzene, a chemical that is present in crude oil, and trichloroethylene (TCE), an industrial metal degreasing agent, are linked to an increased risk of congenital heart disease. (Ethyl benzene is also present in car exhaust, cigarette smoke, and gasoline pump vapors.) The researchers took stool samples from 135 newborn infants with congenital heart disease as well as 432 who did not suffer from the condition. The results showed that 82 percent of all the infants had been exposed to at least one of 17 solvents that were monitored in the study.

The study showed that white infants who had been exposed to ethyl benzene were four times more likely to have congenital heart disease. Black infants exposed to trichloroethylene were eight times more likely to have the condition, while white infants were twice as likely to have congenital heart disease.

"Congenital heart disease is a major cause of childhood death and life-long health problems," said D. Gail McCarver, the study's lead author and professor of pediatrics at the Medical College of Wisconsin."Thus, identifying risk factors contributing to CHD is important to public health." McCarver also stated, "This is the first report that exposure to ethyl benzene, a compound present in crude oil, was associated with CHD," adding that more follow up studies are still necessary.

Continue reading "Crude Oil Chemicals May Increase Risk of Congenital Heart Disease" »