Pre-litigation strategies--gathering and preserving documentary evidence

Radiation injury claims may arise under various legal theories. In addition, plaintiffs may advance such claims within different jurisdictional venues, such as federal and state courts and workers' compensation boards. Irrespective of the jurisdiction or the legal theory underlying the claim, one element remains common to these claims--the quality and quantity of the evidence. While many different pieces of evidence may be needed to litigate a radiation injury claim, the most important evidence for the investigating health physicist is that which establishes the nature and extent of radiation exposure. Most radiation injury claims are associated with late radiation injury, often an allegation of radiation-induced cancer. Because radiation-induced cancers have a long latency period, claims may not arise for years, or even decades, after exposure. Therefore, the immediate challenge to the health physicist, who investigates an exposure, is to avoid the temptation of a "wait and see" approach to gathering evidence. Not only may evidence be short-lived in nature, but with the passage of time memories grow dim and witnesses may become unavailable. Prompt and thorough gathering of pertinent evidence likely will be a determining factor in the outcome of any radiation injury claim. Although ensuring the availability of all pertinent evidence is the key role of the investigating health physicist, he or she also can help to ensure that the evidence does not inadvertently become inadmissible in a court of law, for example, under the hearsay rule. To ensure that the necessary evidence is available in admissible form, the task of gathering evidence should be systematically approached using a pre-established process that reflects a basic understanding of the rules of evidence. Such a process is discussed here.