Making the Case for Causation in Toxic Tort Cases: Superfund Rules Don’t Apply
While causation is often a paramount obstacle to prosecuting a toxic tort claim, judicial interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) generally has eliminated consideration of causation of actual injury or harm. Generally, under CERCLA’s strict liability regime, no showing of causation of actual injury or harm at a site is required for liability to attach. This is important to understand because too often parties presume that a potentially responsible party (“PRP”) under CERCLA also is liable to private parties under common law tort theories, but this is more difficult than it seems. This article compares the relative ease with which the government establishes liability of private parties under CERCLA to the more rigorous demonstration of causation that a plaintiff must make in a toxic tort case.
- Significant exposure to a proven hazardous substance;
- As a proximate result of the exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease;
- Plaintiff’s risk of contracting a serious latent disease is greater than
a. the risk of contracting the same disease had he or she not been exposed, and
b. the chances of members of the public at large of developing the disease.
- A monitoring procedure exists that makes the early detection of the disease possible;
- The monitoring procedure has been prescribed by a qualified physician and is reasonable and necessary according to contemporary scientific principles;
- The prescribed monitoring regime is different from that normally recommended in the absence of exposure; and
- There is some demonstrated clinical value in the early detection and diagnosis of the disease.