Abstract
This paper examines compensation issues related to toxic substance pollution from the standpoint of decision making on LP/HC events. It reviews aspects of the tort liability system that impede recovery for toxic substance victims and considers proposals for reform, particularly with respect to easing the proof of causation. The paper then discusses the need for developing more comprehensive financial responsibility policies for hazardous enterprises and argues that satisfactory solutions in this area will require commitments by both the public and the private sector. The major implications of this discussion for future policy making related to LP/HC events are summarized in conclusion.
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See, e. g., Congressional Research Service, Six Case Studies of Compensation for Toxic Substances Pollution: Alabama, California, Michigan, Missouri, New Jersey, and Texas, A Report for the Senate Committee on Environment and Public Works, 96th Cong., 2nd Sess. (1980) (hereinafter cited as Six Case Studies); See also: “Tort Actions for Cancer: Deterrence, Compensation, and Environmental Carcinogenesis,” Yale Law Jour., Vol. 90 (1981), pp. 840-862.
In New York State, for example, a three-year statute of limitations is currently in effect for lawsuits based on exposure to toxic substances.
This so-called “discovery rule” has been adopted in a number of jurisdictions, including Missouri (by statute) and California, Michigan, New Jersey, and Texas (through judicial action).
This term has been in general use since the publication of a compendium on toxic substance damage actions by the Association of Trial Lawyers of America (ATLA). See ATLA, Toxic Torts: Tort Actions for Cancer and Lung Disease Due to Environmental Pollution (1977).
See, e. g., Garner v. Hecla Mining Co., 19 Utah 2d 367, 431 P. 2d 794 (1967) (lung cancer claim by uranium miner denied).
This is what occurred, for example, when the Environmental Protection Agency (EPA) commissioned a study of chromosome damage among Love Canal area residents. See G. B. Kolata, “Love Canal: False Alarm Caused by Botched Study,” Science, Vol. 208 (1980), pp. 1239–1242.
Six Case Studies, supra note 1, p. 506.
See, e. g., In re Agent Orange Product Liability Litigation, 506 F. Supp. 762, (E.D.N.Y. 1980).
But see, e. g., Coover v. Painless Parker, Dentist, 286 P. 1048, L930) (damages awarded for future risk of cancer following radiation exposure).
See generally Congressional Research Service, Compensation for Victims of Water Pollution, Report for the House Committee on Public Works and Transportation, 96th Cong., 1st Sess. (1979), pp. 346-361.
H.R. 9616, 95th Cong., 1st Sess. (1977). This bill incorporated with only slight modification a model statute first proposed in the Harvard Journal on Legislation. See Stephen M. Soble, “A Proposal for the Administrative Compensation of Victims of Toxic Substance Pollution: A Model Act,” Harv. J. Legis., Vol. 14 (1977), pp. 683–824.
To trigger the rebuttable presumptions under H.R. 9616, a claimant must identify the presumed toxic agent and its manufacturer and show that it (a) traveled through an indicated pathway from the point of manufacture to him and (b) resulted in the etiology of the claimed disease or injury.
For example, a limit on the size of compensation awards was paired with relaxed causation requirements in the proposed Toxic Tort Act, H.R. 1049, 96th Cong., 1st Sess. (1979). Under this proposal claimants would have to show only a “requisite nexus” between a toxic pollutant and their physical injury in order to recover damages. Neither the manufacturer nor the pathway of exposure would have to be identified. A limit of $50,000 would be placed on awards to a single victim.
Comprehensive Environmental Response, Compensation and Liability Act, Pub. L. No. 96-510 (1980).
Gesetz liber den Verkehr mit Arzneimitteln (Arzneimittelgesetz), BGB1. 1, s. 2445 vom 24. 8. 1976.
Similarly, the Price-Anderson Act’s liability limit for commercial nuclear activities was based on the willingness of the nuclear insurance companies and the federal government to provide a certain level of liability coverage. See, e. g., General Accounting Office, Congress Should Increase Financial Protection to the Public from Accidents at DOE Nuclear Operations (1981) (hereinafter cited as GAO Report), p. 6.
It would be misleading to evaluate the adequacy of European liability insurance limits in purely American terms. For a variety of reasons, including the generally lower level of discovery costs and attorneys’ fees, European damage awards tend to be substantially lower than their equivalents in the U.S. Nevertheless, it is instructive that a court-ordered settlement in the amount of about £30 million (about $72 million) was reached in Britain in 1973 to cover the claims of Thalidomide victims. Adjusted for inflation, this amount today would be substantially higher.
GAO Report, supra note 16, p. 9.
G. Calabresi and P. Bobbitt, Tragic Choices (1978), p. 37.
H.R. 9616, Sec. 8.
For succinct statements of the arguments for and against subsidies, see the paired views of Representative George Miller (D-Calif.) and Senator Gary Hart (D-Col.) in: Asbestos Legislation: Who Compensates the Victims?” The New York Times, September 5, 1982, p. F2. Of course, I have argued that the questions of fault raised in the asbestos case will not ordinarily be present in the aftermath of LP/HC events.
Such considerations could be taken into account at least qualitatively in siting and other regulatory decisions. See, e. g., Eliot Marshall, “NRC Must Weigh Psychic Costs,” Science, Vol. 216 (1982), pp. 1203–1204.
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Jasanoff, S. (1984). Compensation Issues Related to LP/HC Events: the Case of Toxic Chemicals. In: Waller, R.A., Covello, V.T. (eds) Low-Probability High-Consequence Risk Analysis. Advances in Risk Analysis, vol 2. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-1818-8_22
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DOI: https://doi.org/10.1007/978-1-4757-1818-8_22
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