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Cancer and The Adjudicative Process: The Interface of Environmental Protection and Toxic Tort Law

Published online by Cambridge University Press:  24 February 2021

Edward J. Schwartzbauer  and
Sidney Shindell
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Abstract

But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done.

—Oliver Wendell Holmes

[Scientists must be certain of their interpretation of the facts, that their priorities are correct, and that they are not bringing unnecessary and unjustified anxiety to many by over-statement or by expression of cancer risks in terms incomprehensible to the lay public.

—John Higginson, Director, International Agency for Research on Cancer

Type
Articles
Information
American Journal of Law & Medicine , Volume 14 , Issue 1 , 1988 , pp. 1 - 67
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1988

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References

1 O. HOLMES, , THE COMMON LAW AND OTHER WRITINGS, 164 (L. Adams ed. 1982).Google Scholar

2 Higginson, Director of the International Agency for Research on Cancer, 103d Annual Meeting of the American Public Health Association.

3 Dienhart & Heussner, 12 UNIV. OF MINN. UPDATE 1 (Aug. 1985).

4 It was assumed at the time of the passage of the Act that a “cure” for cancer could be expected by 1976 in time for the nation's bicentennial. Id. at 2.

5 NATIONAL RES. COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING THE PROCESS 1 (1983). This study by a special Committee on the Institutional Means for Assessment of Risk to Public Health (under contract with the Food and Drug Administration) contains an excellent bibliography on the various agency guidelines for risk assessment, the suggestions for procedural reform, the scientific policy bases for risk assessment, and additional bibliographies.

6 Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. 96-510, (codified as amended at 42 U.S.C. § 960 (1980) (popularly known as Superfund or CERCLA). For a compilation of state laws relating to clean-up, see Envtl. L. Inst., 1984 ENVTL. L. RPTR. (Nov. 1983).

7 A major focus of this paper is upon the great difference between the approaches and reviews taken in rulemaking and adjudication. There is a danger that the regulatory approach may unwittingly be allowed to influence the judicial process. See, e.g., Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1536 (D.C. Cir. 1984)(the court relied upon a law review article dealing with risk assessment in the regulatory arena); see also Rethinking Tort and Environmental Liability Laws: Needs and Objectives of the Late 20th Century and Beyond, 24 HOUSTON L. REV. 1-220 (1987).

8 Generally, continuing legal education courses are geared toward either an insuranceoriented or a public law-oriented audience but seldom are the courses geared toward both. Even the HARVARD LAW REVIEW has spun off a separate entity called the HARVARD ENVIRONMENTAL LAW REVIEW, apparently because environmental lawyers make up an interest group separate from both trial lawyers and general practitioners.

9 For example, more than 100 suits were filed in Silicon Valley alleging cancer, birth defects, and other chronic health effects as a result of exposure to toxic chemicals and similar lawsuits are pending in the Bay Area and elsewhere. Soiffer, An Explosion of Big-Money Lawsuits on Toxic Pollution, San Francisco Chron., July 5, 1985, at 4, col. 1. The California State Commission for Economic Development describes toxic tort litigation as “the tort of the 1980's.” Id. The Commission states that in California alone $2.7 billion in tort claims are pending. One asbestos case in San Francisco involves over 1000 attorneys, five manufacturers and over 65 insurers, necessitating a $210,000 renovation on an auditorium simply to accommodate the participants. Id.; Feinberg, The Toxic Tort Litigation Crisis: Conceptual Problems and Proposed Solutions, 24 HOUSTON L. REV. supra note 7, at 155, 166.

10 Kemmer v. Monsanto Co., 112 111. 2d 233, 492 N.E.2d 1327 (1986). Twenty-two lawsuits were filed against Monsanto as a result of a spill of 19,000 gallons of chemicals which included, according to reports, the equivalent of a half-teaspoon of dioxin. St. Clair County had to build a special room in the courthouse in order to store the more than 3,000 exhibits. Some have said that the case became a “millstone” around the judicial system's neck, although the plaintiffs’ lawyer has said that the case and the area of toxic torts will influence “the future of our civilization.” Middeton, Still Playing in Belleville, It's the Longest Trial Ever, Nat. L.J., Mar. 3, 1986, at 147-49; see also Billard, The Belleville Saga: A Judge's Default, The American Lawyer, July/Aug. 1987, at 109. The jury determined that none of the residents suffered injuries related to dioxin exposure, and Monsanto said it would appeal the punitive damage award as inconsistent with the nominal compensatory award. See Environmental Exposure $16.25 Million in Punative Damages Awarded to Plaintiffs After Three-Year Trial, Toxics Law Rep. (BNA) 612, 612-13 (Oct. 28, 1987).

11 See, e.g., Trauberman, Statutory Reform of “Toxic Torts“: Relieving Scientific and Economic Burdens on the Chemical Victim, 7 HARV. ENVTL. L. REV. 177, 200-01 (1983); Rosenberg, The Causal Connection in Mass Exposure Cases: A “Public Law” Vision of the Tort System, 97 HARV. L. REV. 851, 859 (1984).

12 See, e.g., Stewart, The Role of the Courts in Risk Management in 1985 ABA STANDING COMM. ENVTL. L., PROCEEDINGS OF THE ARLIE HOUSE CONFERENCE.

13

SeeStafford, Why Superfund Was Needed, 7 EPA J. 9 (1981).

14 See Silver & Lubera, Cancer Statistics 1986, 36 CA-A CANCERJ. CLINICIANS 14-15 (1986); Bailan & Smith, Progress Against Cancer, 314 NEW ENG. J. MED. 1226 (1986).

15 According to the Senate task force on radon headed by Senator Frank Lautenberg (D.N.J.) epidemiologic studies by Karolinska's Goran Pershagen, director of the Institute of Environmental Medicine, has established a link between lung cancer and radon. See INSIDE EPA J . (Jan. 24, 1986); 16 Envtl. Rep. (BNA) 1809 (Jan. 31, 1986)(radon is released by building materials). In a recent report, the National Academy of Sciences stated that radon from homes and buildings is responsible for about 13,000 lung cancer deaths annually. Leary, , 13,000 Deaths a Year Indicated by Radon Study, N.Y. Times, Jan. 6, 1988, at 1, col. 3.Google Scholar

16 The EPA has taken the position that the reasonableness of its remedial action plans is not an issue in CERCLA litigation, and the National Contingency Plan and each of the EPA remedies is presumed to be reasonable. One court, in the dicta of its opinion, has agreed with the EPA's position. United States v. Northeastern Pharmaceutical & Chem. Co., 579 F. Supp. 823 (W.D. Mo. 1984).

17 Pub. L. No. 99-499, 100 Stat. 1613 (1986).

18 With defendants asking the courts to address questions of remedy prior to determining liability an unfamiliar kind of bifurcation has become common. See United States v. Reilly Tar & Chem. Corp., 606 F. Supp. 412, 415 (D.C. Minn. 1985)(bifurcate remedy and liability issues); United States v. Seymour Recycling Corp., No. IP-80-447-6, HAZARDOUS WASTE LIT. REP. 6080 (S.D. Ind. Aug. 6, 1984)(bifurcate liability and remedy issues); United States v. Conservation Chem., No. 0983-CV-5, HAZARDOUS WASTE LIT. REP. 6065, 6088 (W.D. Mo. July 16, 1984)(government's request for injunctive relief, all crossclaims, counterclaims, thirdparty claims for inclusion in the injunctive order, and the form and scope of the appropriate remedy was bifurcated from all pending claims for apportionment of costs arising out of any order for injunctive relief, and from the plaintiff's claim for response costs under CERCLA, supra note 6, at §§ 104, 107(a)); United States v. Wade, C.A. No. 79-1426, HAZARDOUS WASTE LIT. REP. 5309, 5329 (E.D. Pa. Feb. 21, 1984)(bifurcate liability and cost recovery).

19 Aminoil, Inc. v. EPA, 599 F. Supp. 69 (CD. Cal. 1984)(EPA action in ordering cleanup without a hearing violated due process); but see Indust. Park Dev. Co. v. EPA, 604 F. Supp. 1136 (E.D. Pa. 1985)(EPA's actions held to be arbitrary and capricious but injunctive relief was denied because the plaintiff did not demonstrate irreparable harm). In other cases, the district courts have denied injunctive relief but recognized the right of the alleged responsible party to contest the order. See Wagner Elec. Corp. v. Thomas, 612 F. Supp. 736 (D. Kan. 1985); United States v. Reilly Tar & Chem. Corp., 606 F. Supp. 412 (D. Minn. 1985).

20 See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310 (2d Cir. 1986); J. V. Peters & Co. v. EPA, 767 F.2d 263 (6th Cir. 1985); Lone Pine Steering Comm. v. EPA, 600 F. Supp. 1487 (D.N.J. 1985), aff'd, Til F.2d 882 (3d Cir. 1985), cert, denied, 106 S. Ct. 1970 (1986); United States v. United Nuclear Corp., 610 F. Supp. 527 (D.N.M. 1985); Time Oil v. EPA, No. 85-677 (W.D. Wash. Dec. 3, 1985), reported in HAZARDOUS WASTE LIT. REP. 8,928 (Apr. 7, 1986); see also Earthline Co. v. Kin-Buc, Inc., 21 E.R.C. 2161 (D.N.J. 1984); United States v. Outboard Marine Corp., 104 F.R.D. 405 (N.D. 111. 1984).

21 In United States v. Western Processing, the EPA argued that the court should not “intervene” because judicial action in advance of clean-up would be premature, and Congress has mandated that the EPA determine the appropriate remedy for hazardous waste sites. HAZARDOUOS WASTE LIT. REP. 8,679 (Feb. 17, 1986), Western Processing, 1986 WL 15691 (W.D. Wash. 1986). In Reilly Tar & Chem. Corp., the Government argued:

In our view, this Court would restrict its inquiry to the order, the Agency's record of decision, and any information which Reilly Tar gave to the Agency concerning the appropriateness of the order.

Supplemental Memorandum of the Federal Defendants to Plaintiff's Motion for Preliminary Injunction, at 2, Reilly Tar & Chem. Corp., 606 F. Supp. 412 (1985). The identical argument was rejected by the court in Wagner Elec, 612 F. Supp. at 747. For an analysis of the constitutional questions presented, see text accompanying notes 187-254.

22 Brown, , Love Canal and the Poisoning of America: Excerpt from Laying Waste, ATLANTIC, DEC. 1979, AT 33;Google Scholar see H.R. REP. NO. 1016, 96th Cong., 2d Sess. 25 (1980); S. REP. NO. 848, 96th Cong., 2d Sess. 11 (1980); 1980 U.S. CODE CONG. & ADMIN. NEWS 6119; see also Brown, Devil's Brew in the Love Canal, FORTUNE, Nov: 19, 1979, AT 76; MAUGH, Environmental Time Bomb Gone Off: Love Canal, 204 SCIENCE, May 25, 1979, at 820; Nightmare in Niagara; Seepage of Buried Chemicals, TIME, Aug. 14, 1978, at 46.

23 See, e.g., SCIENCE, Apr. 17, 1987 at 267-300 (symposium on risk assessment); Wilson & Crouch, Risk Assessment and Comparisons: An Introduction, SCIENCE, supra at 236; Ames, Magaw & Gold, Ranking Possible Carcinogenic Hazards, SCIENCE, supra at 271, 275. Dr. Ames of the Department of Biochemistry, University of California, Berkeley, California, and others had pointed out previously that rodent carcinogens vary in potency even among rodents by more than 10 millionfold. Gold, ,Sawyer, ,Magaw, , Backman, , de Veciana, , Levinson, , Hooper, Havender, , Bernstein, , Peto, , Pike, & Ames, , A Carcinogenic Potency Database of the Standardized Results of Animal Bioassays, 58 ENVTL. HEALTH PERSP. 9 (1984).CrossRefGoogle Scholar

24 Several significant legal issues which arguably are within the broad scope of this paper will not be examined in great depth. These issues include the statutes of limitations in toxic tort cases and the rules of evidence governing expert testimony. For an indepth discussion of the use of state statutes of limitations in hazardous waste litigation, see Note, Statutes of Limitations and Pollutant Injuries: The Need for a Contemporary Legal Response to Contemporary Technological Failure, 9 HOFSTRA L. REV. 1525 (1981). For examples of cases which adopted a liberal “discovery” rule for statute of limitations purposes, see Pauley v. Combustion Eng'g, Inc., 528 F. Supp. 759 (S.D.W. Va. 1981); Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 160 (8th Cir. 1975); Dalton v. Dow Chem. Co., 280 Minn. 147, 158 N.W.2d 580 (1968); 42 U.S.C. § 9658 (1986) (Section 203 of SARA creates a “federally required commencement date” for personal injury and property damage claims based on exposure to hazardous substances. As a result, the state statute of limitations does not begin to run until the plaintiff knows or should have known that the injury or damage was caused by the hazardous substance.).

For a discussion of a possible liberalization of the rules of evidence regarding the admissibility of expert testimony, see In re Agent Orange Product Liability Lit., 611 F. Supp. 1223, 1242 (E.D.N.Y. 1985); see also Black, , Evolving Legal Standards for the Admissibility of Scientific Evidence, SCIENCE, Mar. 25, 1988, at 1508.Google Scholar

In addition, this paper will not address the procedural and case management issues which generally surround mass disaster litigation. For an indepth discussion of these issues, see 52 UMKC L. REV. 141 (1984).

25 See E. WHELAN, TOXIC TERROR (1985). In the Foreword by Nobel laureate Norman G. Borlaug it is stated:

For the past decade, Americans have been in the grip of a virulent strain of “chemical- phobia.” Most people seem convinced that an array of'sinister industrially-produced chemicals have invaded their air, water, homes, and even their muffin mix. The news media regularly carries anxiety-provoking stories about pesticides such as ethylene dibromide (EDB), aldrin, and dieldrin; environmental contaminants like dioxin; industrial chemicals like formaldehyde and PCBs; and alleged chemical nightmares at sites such as Love Canal, Times Beach, and the whole state of New Jersey. Self-appointed representatives of the public interest have demanded bannings or severe restrictions on agricultural and industrial chemicals.

You have been told that as a result of your country's high state of technology and economic development, your environment is making you sick, when the exact opposite would be closer to the truth.

In the United States in 1900 life expectancy at birth for the total population was 47.3 years, with the male and female life expectancy at birth 46.3 and 48.3 years respectively. By 1940 life expectancy at birth had increased to 62.9 years for the total population with 60.8 and 65.2 years for male and female respectively. By 1982 life expectancy for the entire population had increased to 74.5 years with the male and female life expectancy reaching 70.8 and 78.2 years respectively. Moreover, life expectancy at birth continues to increase despite the doomsday predictions of the toxic terrorists.

Ironically, self-styled health activists forment fear about industrial chemicals which appear in trace amounts around us, causing no known hazard to health, while ignoring most of the real, major hazards to our health today.

Nor do they mention that many of our foods— vegetables, fruits, fibers, and grains— which have been consumed by mankind from the dawn of civilization, contain a large number of naturally-occurring compounds, which when evaluated at high dosages in rodents are also found to be toxic, carcinogenic, or mutagenic.

Borlaug, Forward to E. WHELAN, supra, at xv-xvi; see also Wildavsky, 67 AM. SCI. 32 (1979). Another commentor has stated: “How extraordinary! The richest, longest lived, best protected, most resourceful civilization, with the highest degree of insight into its own technology, is on its way to becoming the most frightened.” Slovic, Perception of Risk, 236 SCIENCE, Apr. 17, 1987, at 280.

26 World Health Org., Prevention of Cancer TECH. REP. SER. 276 (1964).

27 For a discussion of the development of these pronouncements, see F. EFRON, THE APOCALYPTICS 67-78, 425-32 (1984).

28 R. DOLL & R. PETO, THE CAUSES OF CANCER: QUANTITATIVE ESTIMATES OF THE AVOIDABLE RISKS OF CANCER IN THE UNITED STATES TODAY (1981)(commissioned report to the Office of Technology Assessment). The report first was published in THE JOURNAL OF THE NATIONAL CANCER INSTITUTE. DOLL, & PETO, , The Causes of Cancer: Quantitative Estimates of the Avoidable Risks of Cancer in the United States Today, 66 J. NAT'L CANCER INST. 1197 (1981).Google Scholar Dr. John Higginson, founding director of the IARC, a division of the World Health Organization (WHO), has explained that the use of the term environmental should not have been equated with industrial chemicals. E. EFRON, supra note 27, at 432.

29 Causes of Cancer, supra note 28, at 1197.

30 Id.

31 Ames, Dietary Carcinogens and Anticarcinogens, SCIENCE, Sept. 23, 1983, at 1256, 1258.

32 Ames, Ranking Possible Carcinogenic Hazards,SCIENCE, Apr. 17, 1987, at 271, 273; Wilson, Risk Assessment and Comparisons: An Introduction, SCIENCE, Apr. 17, 1987, at 267.

33 See, e.g., IARC, , Polynuclear Aromatic Compounds, Preamble to 1 ENVIRONMENTAL AND EXPERIMENTAL DATA 20 (1983)(emphasis added).Google Scholar Many scientists dispute this approach, pointing out that there are major differences among species in terms of physiology, metabolic and digestive capabilities, and anatomy, as well as differences in specific tissue or cell reactivity. Space limitations, however, prevent an indepth exploration of these intriguing arguments.

The best-known examples of differences in species reaction are thalidomide and penicillin. Thalidomide was shown to be safe in most test animals but it had disastrous effects when used by humans, while penicillin, which is fatal to some rodents, is prescribed frequently when treating humans for infections.

Of the 98 chemicals found to be carcinogenic in the National Cancer Institute's bioassay program, 54 were positive in only one species. In risk assessments by federal agencies, generally the positive result is accepted and the negative result is ignored. As a result, extrapolation is based on results from only a single strain or species, and the absence of an effect in related strains or species is ingored.

34 Other objections relate to species extrapolation and the significance of certain tumors. Species extrapolation depends upon the use of various scaling factors to account for the differences in the size of animals and humans. One technique converts the animal results in terms of the differences in body weight, while another method converts the results through the differences in surface area. The choice of the scaling factor can make a difference of up to forty-fold in estimating human risk. OFFICE TECH. ASSESSMENT, ASSESSMENT OF TECHNOLOGIES FOR DETERMINING CANCER RISKS FROM THE ENVIRONMENT 170 (1981)(hereinafter DETERMINING CANCER RISKS). Another heated debate relates to the significance of liver tumors in mice. Some scientists are certain that the mouse liver is overly sensitive and will respond to almost any toxic insult by developing cancer. Other scientists are just as certain that the mouse liver is a reliable indicator of carcinogenicity. OFFICE OF SCIENCE & TECH. POL'Y, CHEMICAL CARCINOGENS: A REVIEW OF THE SCIENCE AND ITS ASSOCIATED PRINCIPLES, 50 Fed. Reg. 10,417 (1985)(hereinafter OSTP CHEMICAL CARCINOGENS).

35 OSTP CHEMICAL CARCINOGENS, supra note 34, at 10,371-10,442; DETERMINING CANCER RISKS, supra note 34, at 159.

36 The cost is reported to be approximately $1000 per animal. Normally three dose groups are used: the control group, which does not receive the chemical but which otherwise is treated identically to the other two dose groups, plus a “high” and “low” doses group. Within each group are sub-groups of mice and rats and sub-sub-groups of male and female animals. Typically there are twelve groups of 50 animals each or a total of 600 animals. As a result, the total cost for a typical test on a single chemical is $600,000.

37 AMERICAN COUNCIL SCIENCE & HEALTH, OF MICE AND MEN: THE BENEFITS AND LIMITATIONS OF ANIMAL CANCER TESTS 12-13 (1984)(pamphlet).

38 Examples of substances which are carcinogenic in laboratory studies but which are essential to human life are iron, zinc, cobalt, copper, manganese, chromium, molybdenum, selenium and oxygen. The best example, however, of a carcinogen which is essential to life is sunshine.

39 OFFICE SCIENCE & TECH. POL'Y, IDENTIFICATION, CHARACTERIZATION, AND CONTROL OF POTENTIAL HUMAN CARCINOGENS: A FRAMEWORK FOR FEDERAL DECISION-MAKING 14 (1979).

40 DETERMINING CANCER RISKS, supra note 34, at 163.

41 NATIONAL RES. COUNCIL, supra note 5, at 48.

42 Id. at 5-6. Other scientists have been even more critical. See Causes of Cancer, supra note 28, at 1216-17. These scientists state:

If our perspective on both short-term and animal tests is accepted, then quantitative human “risk assessment” as currently practiced, is so unreliable, suffering not only from random but also probably from large systematic errors of unknown direction and magnitude, that it should definitely be given another name. “Priority setting” might perhaps be a more honest, although less saleable, name.

Id.

43 The bibliography on inhibition is extensive. The inhibitors identified show a great diversity of chemical structures, and include substances which themselves are noxious. See Waltenberg, , Inhibition of Chemical Carcinogenesis, 60 J. NAT. CANCER INST. 11 (1978)(guest editorial);CrossRefGoogle Scholar Wattenberg, , Chemoprevention of Cancer, 45 CANCER RES. 1 (1985).Google Scholar

44 In recent risk assessments of arsenic, dioxin and other substances, the EPA has used, apparently for the first time, a nonlinear approach and has cited research on the degree of human exposure to toxic substances and how it enters and affects the body. Shabecoff, E.P.A. Reassesses The Cancer Risks of Many Chemicals, N.Y. Times, Jan. 4, 1988; at 1, col. 1. This approach to substance regulation undoubtedly will be controversial.

45 DETERMINING CANCER RISKS, supra note 34, at 158-159.

46 There are studies which reveal that animals exposed to very low doses of a carcinogen lived longer than the nonexposed controls. See, e.g., Carlson Scheyer & Jackson, , The Combined Effects of Ionizing Radiation and Low Temperature on the Metabolism Longevity and Soft Tissue of the White Rat, 7 RADIATION RES. 190 (1957);Google Scholar Hollcroft, , Long Term Survival Following X-Irradiation and the Irradiation of the Alpha Particles from Radon and its Decay Products, 15 J. NAT'L CANCER INST. 1059 (1955).Google Scholar It is possible that mild injury is beneficial because it stimulates the renovation processes. Carlson, supra, at 195. It also is likely that bodily defenses to cancer are strengthened by low exposures to carcinogens. This is one reason why the no threshold theory lacks logic. Unfortunately, there has been little research done to identify the line between beneficial and deleterious exposures.

47 Saffiotti, Identifying and Defining Chemical Carcinogens, cited in Hiatt, Origins of Human Cancer, HUMAN RISK ASSESSMENT 1311, 1314 (1977).

48 Ethyl Corp. v. EPA. 541 F.2d 1, 13-14 (D.C. Cir.), cert, denied, 426 U.S. 491 (1976).

49 Hercules Inc v. EPA, 598 F.2d 91, 106 (D.C. Cir. 1978).

50 Environmental Defense Fund v. EPA, 598 F.2d 62, 80-81 (D.C. Cir. 1978)(reviews the history of the EPA's efforts to regulate discharges under the Federal Water Pollution Control Act).

51 See American Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir. 1981), cert, denied, 455 U.S. 1034 (1982); Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.), cert, denied, 449 U.S. 1042 (1980).

52 See, e.g., Environmental Defense Fund v. EPA, 598 F.2d 82 (D.C. Cir. 1978); Ethyl Corp. v. EPA, 541 F.2d 20-21; Amoco Oil Co. v. EPA, 501 F.2d 722, 741 (D.C. Cir. 1974); Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974); United States v. Florida E. Coast Ry., 410 U.S. 224, 244-246 (1973); American Airlines, Inc. v. CAB, 359 F.2d 624 (D.C. Cir. 1966).

53 See generally K. DAVIS, ADMINISTRATIVE LAW TREATISE, §§ 6.13-.16, at 506-28, 12.4, at 415-20 (2ded. 1978).

54 Id. at § 12.8, at 439. Congress has applied this approach to food additives through amendment to the Food & Drug Act. 21 U.S.C. § 348(c)(3)(A)(1972). The amendment reads in part: “[p]rovided, that no additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal … .”

55 UNITED STATES CONST., art. III.

56 UNITED STATES CONST., amend V & XIV.

57 59 U.S. (18 How.) 272 (1856).

58 Id. at 284.

59 26 U.S. (1 Pet.) 511 (1828).

60 The distinction between legislative and constitutional courts has been called “one of the most confusing and controversial areas of constitutional law.” See, e.g., Northern Pipeline Co. v. Marathon Pipeline Co:, 458 U.S. 50, 93 (1982)(dissenting opinion). Despite the confusion, the separation of powers principles are used repeatedly by the courts in deciding cases.

61 285 U.S. 22 (1932).

62 Id. at 50 (citing Murray's Lessee, 59 U.S. (18 How.) at 283).

63 Id. at 87.

64 259 U.S. 276(1922).

65 B. SCHWARTZ, ADMINISTRATIVE LAW § 10.23, at 630 (2d ed. 1984).

66 458 U.S. 50(1982).

67 Id. at 60 (citing FEDERALIST NO. 47, at 300 (H. Codge ed. 1888) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether heriditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.“)).

68 See supra note 66 and accompanying text. “Although Crowell's precise holding… has been undermined by later cases, the general principal of Crowell - distinguishing between congressionally created rights and constitutionally recognized rights - remains valid,” as evidenced by the Court's recent approval of Ng Fung Ho v. White which Crowell relied upon. See Agosto v. INS, 436 U.S. 748, 753 (1978), cited in Northern Pipeline, 458 U.S. at 82 n.34.

69 Northern Pipeline, 458 U.S. at 70. Justices Rehnquist & O'Connor dissented from the opinion but not from the judgment agreeing that Congress could not empower a non-Article III court to decide a traditional common law action. Id. at 89. Justices White, Burger and Powell dissented vigorously criticizing the public rights-private rights distinction. Id. at 92.

70 Recent cases continue to stress the necessity of a historical inquiry. It also is important to determine whether the right to be litigated was created by the statute which set up the adjudicative mechanism. See Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985). In Commodity Futures Trading Com'n v. Schor, both the majority opinion, written by Justice O'Connor, and the dissent, written by Justice Brennan, relied heavily upon Murray's Lessee. 478 U.S. 883, 854, 859 (1986)(citing Murray's Lessee, 59 U.S. (18 How.) at 284); see also Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 959 (1983)(concurring opinion).

71 The requirement that evidence be substantial was imposed by the courts even prior to enactment of the Administrative Procedure Act. 5 U.S.C. §§ 551-701(1982). For example, in NLRB v. Columbian Enameling & Stamping Co., the Supreme Court, with virtually no explanation of its source, held that the National Labor Relations Act's provision that “the finding of the Board as to the facts, if supported by evidence, shall be conclusive” meant that the findings must be supported by substantial evidence. Columbian Enameling, 306 U.S. 292, 300 (1939). The Court required “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” but does not mention the Constitution. This, however, is typical of most Supreme Court cases regarding judicial review. Usually the Court skirts the constitutional issue by interpreting the Congressional language regarding review so that the constitutional issue may be avoided. See K. DAVIS, supra note 53, at § 29:23, at 114.

72 210 U.S. 373 (1908).

73 Id. at 386. In ICC v. Louisville & Nashville R. R., the Court held that in a hearing on a specific rate, the ICC must base its decision on evidence in the record. The scope of review reserved for the Court the questions of whether the order deprived a party of constitutional rights; whether the hearing was adequate and fair; whether the order was contrary to law; and whether the findings were contrary to or consistent with “the indisputable character of the evidence.” 227 U.S. 88, 91 (1913).

74 239 U.S. 441 (1915).

75 Id. at 445.

76 Professor Davis points out that the law on scope of review of adjudicative decisions has remained essentially the same as it was twenty-five to fifty years ago. K. DAVIS, supra note 53, at §§ 29.01-.11, § 12:3 (discussion of the Londoner and Bi-Metallic cases).

77 St. Joseph Stock Yard Co. v. United States, 298 U.S. 38 (1936).

78 Morgan v. United States, 304 U.S. 1 (1938)(Morgan II); Morgan v. United States, 298 U.S. 468 (1936)(Morgan I).

79 Compare Falbo v. United States, 320 U.S. 549 (1944), with Estep v. United States, 327 U.S. 114 (1946). Estep distinguishes Falbo on the ground that the defendant in Estep had reported but then refused to submit to induction. For a discussion of these cases, see L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 367 (1965). These rules were developed further during the Vietnam-era. See Fein v. Selective Serv. System, 405 U.S. 365 (1972); Clark v. Gabriel, 393 U.S. 256 (1968). Ostereich v. Selective Serv. Bd., 393 U.S. 233 (1968)(where the board has acted in an essentially lawless fashion, there may be pre-induction review).

In a series of cases decided in the 1950's, the Supreme Court attempted to give enough guidance to the lower courts so that they would not unduly interfere with draft boards in conscientious objector cases. Review could be obtained, however, either by raising the defense in a criminal prosecution or through habeas corpus. See Simmons v. United States, 348 U.S. 397 (1955); Sicurella v. United States, 348 U.S. 385 (1955); Witmer v. United States, 348 U.S. 375, 377 (1955).

80 Greene v. McElroy, 360 U.S. 474 (1959).

81 Id. at 496. The Court does not hold that the Constitution requires such a hearing. Rather, it interprets the relevant statutes and executive orders so as to provide such a hearing, in order to avoid constitutional questions.

82 401 U.S. 402 (1971).

83 Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977).

84 406 U.S. 742(1972).

85 410 U.S. 224 (1973).

86 This concept is expressed repeatedly in public law. For example, courts, in considering the validity of zoning ordinances, have asked that they be “in accordance with a comprehensive plan.” See Haar, , In Accordance with a Comprehensive Plan, 68 HARV. L. REV. 1154, 1154-58 (1955).CrossRefGoogle Scholar Spot zoning is condemned by the courts because it constitutes a particularized ad hoc approach, by the legislative bodies, but if legislative bodies legislate, not adjudicate, their actions will not be second-guessed by the courts. Id. at 1167. This approach is just one example of the efforts of the American judiciary to ensure that the individual is not overwhelmed by government.

The Constitution contains several specific provisions which protect the individual from unfair burdens of intrusive government. Among these provisions are the bill of attainder clauses of the UNITED STATES CONST., art. I, §§9 & 10 which are not invoked frequently. Professor Tribe has discussed the relationship between the bill of attainder clauses and the separation of powers doctrine. L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 10-5, at 650 (1978). Although these clauses have been applied most frequently in cases involving something akin to “punishment,” the clauses actually are based upon the fundamental theory “that those governmental processes which are not circumscribed by the safeguards of adversary trial limit themselves to the promulgation of general rules.” Id. at § 10.5, at 43. Moreover, that which is forbidden to Congress and to state legislatures by the bill of attainder clauses also should be forbidden to administrative agencies as well. Joint Anti-Fascist Refugee Coram, v. McGrath, 341 U.S. 123 (1950); L. TRIBE, supra, § 10-6, at 656.

87 597 F. Supp. 740 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987).

88 Id at 781-82.

89 29 U.S.C. §§ 651-678 (1970).

90 See Asbestos Info. Ass'n, N. Am. v. OSHA, 727 F.2d 415, 422 (5th Cir. 1984); see also Florida Peach Growers Ass'n, Inc. v. U.S. Dept. Lab., 489 F.2d 120, 127-28 (5th Cir. 1974)(discusses the differences and similarities between on the record substantial evidence review and arbitrary and capricious informal rule-making review).

91 448 U.S. 607, 624-57 (1980).

92 Id. at 657 (Stevens, J.).

93 id. at 659.

94 701 F.2d 1 137 (5th Cir. 1983).

95 Consumer Product Safety Act, 15 U.S.C. § 2060(c).

96 Id.

97 Gulf South, 701 F.2d at 1142.

98 Id. at 1147 n.19.

99 514 F.2d 492 (8th Cir. 1975).

100 For an overview of the Clean Water Act, see F. ANDERSON, D. MANDELKER & A. TARLOCK, ENVIRONMENTAL PROTECTION: LAW AND POLICY 342-47 (1984).

101 33 U.S.C. § 1160(g)(1) (1970) provided:

(g) If action reasonably calculated to secure abatement of the pollution within the time specified in the notice following the public hearing is not taken, the Administrator-

(1) in the case of pollution of waters which is endangering the health or welfare of persons in a State other than that in which the discharge or discharges (causing or contributing to such pollution) originate, may request the Attorney General to bring a suit on behalf of the United States to secure abatement of pollution ….

This provision first appeared in the Federal Water Pollution Control Act Amendments of 1961. Pub. L. No. 87-88, § 8, 75 Stat. 204, 209 (1961). The provision was eliminated and replaced with a new enforcement scheme when the Federal Water Pollution Control Act Amendments of 1972 was enacted. Pub. L. No. 92-500, 86 Stat. 816 (1972). The court which decided Reserve Mining may not have had in mind the distinction between prospective regulation, and retrospective remediation and adjudication but it is evident that the court's decision speaks prospectively.

102 For a discussion of the CERCLA cases, see infra text accompanying notes 193-262.

103 Reserve Mining, 514 F.2d at 520.

104 21 U.S.C. § 454(c)(1) (“would clearly endanger“).

105 42 U.S.C. § 300(i)(a)(Supp. 1988). Upon receipt of information that a contaminant which is likely to enter a public water system, and which “may present an imminent and substantial endangerment to … health …”, id., the EPA Administrator may issue orders or commence a civil action.

106 33 U.S.C. § 1364 (1980). Upon receipt of evidence that a pollution source is presenting “an imminent and substantial endangerment” to health, the EPA Administrator may take such action as may be necessary to protect the marketability of shellfish, or may bring suit on behalf of the United States.

107 Ethyl Corp. v. EPA, 541 F.2d 17-19 (D.C. Cir.), cert denied, 426 U.S. 941 (1976). Since regulatory efforts are not given a de novo review, but only are reviewed to see whether the regulatory judgment is supported by adequate reasons and explanations, a court in deciding a case should critique the substance of Reserve Mining only in the same way it would critique the substance of any regulatory decision — by asking if, at the time the decision was made it was it supported by a rational explanation.

108 This paper will not attempt a comprehensive discussion of the product liability insurance crisis. The current administration has declined to press for federal legislation on products liability law, opting instead for tort reform relating to lawsuits against the Government and its contractors.

This paper assumes that tort law will continue to be a state responsibility, and that there will be no sudden retreat from a norm of strict liability for defective products.

109 Occupational exposure to asbestos opened up an unprecedented flood of lawsuits. For a discussion of the dimensions of the asbestos litigation, see Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1329 (5th Cir. 1985)(Clark, Gee, Garza, Politz & Jolly, JJ., dissenting) [hereinafter Jackson II]. According to the dissent, 500 asbestos-related product liability actions were being filed each month and by March 1983, 24,000 actions had been filed. Id. at 1336. The dissent urged the creation of a federal common law to provide uniformity on questions of punitive damages and liability for increased risk and cancer-phobia. Id. at 1331.

110 It appears that in the early 1950's DES was administered to some women without their consent in order to determine whether it was effective in preventing miscarriages. One result was an unusual form of vaginal cancer which affected women in their twenties and thirties. The manufacturer and those who participated in the experiment were sued for assault and battery, strict products liability, and negligence. See, e.g., Mink v. University of Chicago, 460 F. Supp. 713 (N.D. 111. 1978).

111 For a lengthy argument that a “proportional liability” scheme be devised as a substitute for the requirement of cause and effect, see Rosenberg, The Causal Connection in Mass Exposure Cases: A Public Law Vision of the Tort System, 97 HARV. L. REV. 849 (1984). Similar arguments are made in Trauberman, Statutory Reform of Toxic Torts: Relieving Legal, Scientific and Economic Burdens on the Chemical Victim, 7 HARV. ENVTL. L. REV. 177 (1983); Note, Tort Actions for Cancer: Deterrence, Compensation and Environmental Carcinogenesis, 90 YALE L.J. 840 (1981). According to Professor Farber, there is a scholarly consensus which favors proportional recovery. Farber, Toxic Causation, 71 MINN. L. REV. 1219 (1987).

The “Superfund § 301(e) Study Group,” a group appointed pursuant to the mandate of § 301(e) of CERCLA, recommended a two-tier compensation system for hazardous waste injuries. Under Tier I, a new administrative compensation scheme was to be created by Congress, and certain rebuttable presumptions of causation would be available to a claimant. Under Tier II, traditional tort actions would be permitted. A person would be able to seek compensation for medical expenses, lost earnings of up to $2,000 per month and death benefits under Tier I, while other compensation, such as pain and suffering, property damage and punitive damages would be available only through a legal action under Tier II. The study group recommended against the use of such rebuttable presumptions in Tier II, and did not make any factual findings as to whether any substantial group of persons who had been injured by exposure to hazardous waste and who had not been compensated from other sources. See Superfund § 301(e) Study Group, Injuries and Damages from Hazardous Wastes - Analysis and Improvement of Legal Remedies: A Report to Congress in Compliance with Section 301(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510), 97th Cong., 2d Sess. (1982). For commentary on this report, see Hassler, Remedies for Victims of Toxic Torts: The Report of the Section 301(e) Study Group, 15 NAT'L RES. L. NEWSLETTER 1 (Spring 1983); Light, Toxic Injury Compensation: One More Overview of Legislative Proposals, 15 Nat'l Res. L. Newsletter, supra, at 2: Zazzali & Grad, Hazardous Wastes: New Rights and Remedies?, 13 SETON HALL L. REV. 446 (1983). The group, which prepared this report over a period of one year, consisted of representatives from the American Bar Association, American Law Institute, American Trial Lawyers Association and National Association of Attorneys General. The reporter for the group was Professor Frank B. Grad of Columbia University School of Law. See Special Concurring Opinion by George C. Freeman, Jr., ABA representative, at 6, reprinted in 1 SUPERFUND § 301(E) STUDY GROUP REPORT (“[rjepeated requests by the Group to the Justice Department for relevant hard evidence currently available to it and to EPA as to the extent of this problem produced very little“).

112 See, e.g., Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 VA. L. REV. 713 (1982). For a comprehensive review of proof of causation in asbestos and DES cases, see Rudlin, Burdens of Proof, in Toxic TORTS: LITIGATION OF HAZARDOUS SUBSTANCE CASES (Northstein ed. 1984).

113 448 F.2d 1076 (5th Cir. 1973), art. denied, 419 U.S. 869 (1974).

114 W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 41 (4th ed. 1971); RESTATEMENT (SECOND) TORTS § 432(2).

115 See W. PROSSER, supra, note 114, at § 52; RESTATEMENT (SECOND) TORTS supra, note 114, at §§ 443A, 443B, 875, 881; see also United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983)(federal common law rule for CERCLA cases). Preceding the 1980 enactment of CERCLA, there was a vigorous debate in Congress regarding the joint and several liability provisions of the Act. Ultimately, it resulted in a compromise and the phrase “joint and several liability” was not used. The sponsors, however, inserted in the Congressional Record a memorandum from the Department of Justice in support of the position that in appropriate circumstances, the common law would be able to impose joint and several liability.

116 See Prosser, , The Fall of the Citadel (Strict Liability to the Consumer), 50 MINN. L. REV. 791 (1966).Google Scholar

117 See,e.g, Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948); Ybarra v. Spanguard, 25 Cal. 2d 486, 154 P.2d 687, (1944).

118 26 Cal. 3d 588, 163 Cal. Rptr. 132, 607 P.2d 924, cert, denied, 449 U.S. 912 (1980).

119 See, e.g., Miller & Hancock, Perspectives on Market Share Liability: Time for a Reassessment?, 88 W. VA. L. REV. 81 (1985); Kaye, The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation, 1982 AM. B. FOUND. RES. J. 487 (1982); Comment, Market Share Liability for Defective Products: An III Advised Remedy for the Problem of Identification, 76 Nw. U.L. REV. 300 (1981).

120 See Copeland v. Celotex Corp., 447 So. 2d 908 (Fla. D.C. App. 1984)(burden of apportionment in case involving cancer from cumulative exposure to asbestos is on the asbestos procedures); see also Bichler v. Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982); Abel v. Eli Lilly & Co., 94 Mich. App. 59, 289 N.W.2d 20 (1980)(“concert of action” theory applied to DES producers).

121 See, e.g., Klein v. Council Chem. Assoc, 587 F. Supp. 213 (E.D. Pa. 1984); Pipon v. Burroughs-Welcome Co., 532 F. Supp. 637 (D.N J. 1982); Starling v. Seaboard Coast Line Ry. Co., 533 F. Supp. 183 (S.D. Ga. 1982); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004 (D.S.C. 1981); Tiddler v. Eli Lilly & Co., 95 F.R.D. 332 (D.D.C. 1982); Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986); Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984); Namm v. Charles E. Frost & Co., 178 N.J. Super. 19, 427 A.2d 1121 (App. Div. 1981).

122 In re Agent Orange Product Liability Lit., 597 F. Supp. 740 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987).

123 33 Cal. 2d 80, 199 P.2d 1 (1948). In Summers v. Tice two hunters fired shotguns in the direction of plaintiff striking him in the face. The California court, relying upon the RESTATEMENT OF TORTS reasoned that the defendants were jointly liable, although the plaintiff obviously could not prove which defendant's shot hit his eye inflicting the greatest damage. Summers, 33 Cal. 2d at 85, 199 P.2d at 3.

124 607 P.2d 924, 163 Cal. Rptr. 132, 26 Cal. 3d 588, cert, denied, 449 U.S. 912 (1980). Although referred to most often as the market share theory, the Sindelltheory also has been labelled as the theory of “indeterminate defendants.” The essential difference between Summers and Sindell is that in the former it was clear that one of the defendants actually had caused the harm to the plaintiff's eye, whereas in the latter case, which only requires that “a substantial share” of those who potentially may have caused the actual harm to the plaintiff have to be joined as defendents. Some authors believe that the approaches used in both Summers and Sindell involve the use of the theory of “indeterminate defendants.“

125 See In re Agent Orange, 597 F. Supp. at 822-33.

126 Rosenberg, supra, note 111, at 849.

127 Delgado, Beyond Sindell: Relaxation of Cause-in-Fact Rules for Indeterminate Plaintiffs, 70 CAL. L. REV. 881 (1982).

128 The burden of persuasion does not shift from the plaintiff during the course of a case while the burden of going forward with the evidence may shift from the plaintiff to the defendant and then back again during the course of a case depending upon the proof offered. For a discussion of this phenomenon, see SUPERFUND § 301(E) STUDY GROUP, supra note 111, at 205.

129 See, e.g., Tonkovich v. Department Lab. & Indus., 31 Wash. 2d 220, 195 P.2d 638 (1948); see also Kimmie v. Terminal R.R. Ass'n, 334 Mo. 596, 66 S.W.2d 561 (1933). The standard of proof is said to be that of “reasonable probability.” See generally Note, Causation in Disease: Quantum of Proof Required to Reach the Jury, 53 Nw. U.L. REV. 793 (1977); Causation- Medical Opinion, 3 AM. JUR. PROOF OF FACTS 161 (1959).

130 See, e.g., Daly v. Bergstedt, 267 Minn. 244, 126 N.W.2d 242 (1964); American Life Ins. Co. v. Moore, 21 Ark. 44, 323 S.W.2d 1019 (1949); Custer v. Higgins Indus., 24 So. 2d 511 (La. Ct. App. 1946).

131 See, e.g., Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959)(tubercular illness); Gates v. United States, 707 F.2d 1141 (10th Cir. 1983); Lima v. United States, 508 F. Supp. 897 (D.C. Colo. 1981), aff'd, 708 F.2d 502 (10th Cir. 1983)(swine flu); Mahoney v. United States, 220 F. Supp. 823 (E.D. Tenn. 1963), aff'd, 339 F.2d 605 (6th Cir. 1964)(Hodgkin's disease not sufficiently connected to employment at nuclear facility); Conway v. Blackfeet Ind. Dev., Inc. 202 Mont. 459, 669 P.2d 225 (1983)(workman's compensation award for traumatic aggravation of multiple sclerosis); Herskovitz v. Group Health Coop. Puget Sound, 99 Wash. 2d 609, 664 P.2d 474 (1983)(medical malpractice-failure to timely diagnose decreased chance of survival); Parker v. Employers Mut. Liability Ins. Co., 440 S.W.2d 43 (Tex. 1969)(cancer from radiation); Garner v. Hecla Mining Co.,'19 Utah 2d 367, 431 P.2d 794 (1967)(lung cancer not sufficiently connected to uranium exposure); see also O'Brien v. Stover, 443 F.2d 1013 (8th Cir. 1971); Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970); Kallenburg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (1975). For a discussion of these cases, see R. PHELAN & J . METZEL, LEGAL PROOF OF CAUSATION AND THE RELIABILITY AND USE OF STATISTICAL EVIDENCE (1984); Phelan, , Proof of Cancer from a Legal Viewpoint, Toxic SUBSTANCES: PROBLEMS IN LITIGATION 133, 139 (1981).Google Scholar

132 See supra text accompanying notes 25-47.

133 588 F. Supp. 247, 410-15 (D. Utah 1984), rev'd on other grounds, 816 F.2d 1417 (10th Cir. 1987). In this opinion the court engages in an extensive discussion of the principles of causation and holds that the evidence presented on behalf of some plaintiffs was sufficient to shift the burden of going forward with evidence on the causation issue to the defendant. Noting that this shifting is consistent with both common law principles and with recent proposals for tort reform, the court then proceeds to discuss the evidence for each of the twentyfour plaintiffs. Clearly, the court was applying the traditional preponderance of the evidence approach to each plaintiff's claim.

134 See Rosenberg, supra note 126, at 857-59.

135 Some authors seem to be confusing the rules regarding burden of proof which require proof by a preponderance of the evidence (more than 50%) with the rules as to substantial causes (which have never required any particular percentage of causation). The former might be described as a “quantitative” requirement and the latter as a “qualitative” requirement.

136 PROSSER & W. KEETON, PROSSER & KEETON ON TORTS § 41, at 265-68 (1984); Prosser, , The Minnesota Court on Proximate Cause, 21 MINN. L. REV. 19 (1936).Google Scholar

137 Green, , The Causal Relation Issue, 60 MICH. L. REV. 543, 554 (1962).CrossRefGoogle Scholar

138 See, e.g., Huey v. Milligan, 242 Ind. 93 , 175 N.E.2d 698 (1961); Golden v. Lerch Bros., Inc., 203 Minn. 211 , 281 N.W. 249 (1938); Connellan v. Coffey, 122 Conn . 136, 187 All. 901 (1936).

139 W. PROSSER & W. KEETON, supra note 136, § 41 , at 268.

140 In a unique decision, the Food & Drug Administration declined to lower the maximum residue level of methylene chloride, an animal carcinogen, permitted in decaffinated coffee, while banning its use as an ingredient of cosmetic products. The reasoning behind the FDA decision was that the presence of the chemical in the coffee only presented a de minimis risk. 50 FED. REG. 551, 551-53 (Dec. 18, 1985).

141 Trauberman, supra note 11, at 177; Rosenberg, supra note 111, at 849.

142 See Delgado, supra note 127; Rosenberg, supra note 111, at 106.

143 In re Agent Orange Product Liability Lit., 597 F. Supp. 740, 838 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987).

144 Id. at 839.

145 Id. at 841.

146 Jaffee, , Res Ipsa Loquitur Vindicated, 1 BUFFALO L. REV. 1, 4 (1951).Google Scholar

147 Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir.), cert, denied, 469 U.S. 1062 (1984)(Maryland law).

148 See Green v. American Tobacco Co., 304 F.2d 70 (5th Cir. 1962); Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (3d Cir. 1961). The scientific approach collects data on empirical events; therefore, a probability is a statement of the frequency with which two events are associated. In the law, a verdict for a plaintiff must be based upon “reasonable certainty” or “reasonable probability,” but these words only mean that the conclusion or finding, which is a pre-requisite to recovery, is “more likely than not.” See Note, Causation in Disease: Quantum of Proof Required to Reach the Jury, 53 Nw. U.L. REV. 793 (1959). While it seems reasonable to equate the “more likely than not” test with a probability greater than 50 percent, one court has refused expressly to accept opinion testimony of a probability said to be higher than 50 percent when the opinion was inherently unreasonable to the Court. Johnston v. United States, 597 F. Supp. 374 (D. Kan. 1984). Dr. Brennan, in his explanation of the differences between legal causation, which he labels corpuscularianism, and scientific causation, which he labels probabilistic, states that judges usually have chosen to reject probabilistic evidence. Brennan, Untangling Causation Issues in Law and Medicine: Hazardous Substance Litigation, 107 ANNALS INTERNAL MED. 741 (1987). An examination of the cases he cites does not reveal the existence of any rule of law which rejects probabilistic evidence, but does reveal that a number of the courts rejected the evidence because they found it to be unpersuasive. The primary challenge to the parties in a suit is to provide the courts with proper expert guidance. Id. at 745-46.

149 According to the opinion, “Even if the statistical increase attributed to the substance in question is just a few percentage points, if statistical theory supports a finding of correlation there is no reason why the industry as a whole should not pay for the damages it probably caused.” In re Agent Orange Product Liability Lit., 597 F. Supp. 740, 837 (E.D.N.Y. 1984), aff'd 818 F.2d 145 (2d Cir. 1987).

150 In re Agent Orange, 597 F. Supp. at 838; Rosenberg, supra note 126, at 892-93.

151 In re School Asbestos Lit., 4 Fed. R. Serv. 2d 6-7 (3d Cir. 1986).

152 See In re Three Mile Island Lit., 87 F.R.D. 433, 440 (M.D. Pa. 1980)(dicta).. Another method for resolving liability questions in the mass tort context is the pre-trial selection of typical plaintiffs. This was done in both the Allen and xx`Agent Orange cases. Even though the results of test cases of this type may or may not have a preclusive effect, the results will have a substantial value for the purposes of settlement. The Second Circuit opinion which affirms Judge Weinstein's settlement opinion in the Agent Orange case registers skepticism about the use of class actions in mass tort cases. The court reasoned that given the need to present individualized evidence of causation a class action would not have been appropriate except for the commonality of the government contractor's defense. In re Agent Orange, 818 F.2d at 165.

153 28 U.S.C.I 2072 (1982).

154 Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir. 1973), vacated, 417 U.S. 156 (1974).

155 Id. at 1008-11. Although the concept of fluid recovery, which creates a fund that will be distributed to persons other than those injured, was praised by several authors, the concept was rejected vigorously by the Second Circuit in an opinion written by Circuit Judge Medina. Eisen, 479 F.2d at 1008-11.

156 Askey v. Occidental Chem. Corp., 477 N.Y.S.2d 242, 102 A.D.2d 130 (App. Div. 1984).

157 Mink v. University of Chicago, 460 F. Supp. 713, 719 (N.D. 111. 1978).

158 In re Agent Orange, 597 F. Supp. at 842-43.

159 Compare Namm v. Charles E. Frost & Co., 178 N.J. Super. 19, 33,427 A.2d 1121, 1288 (1981), with Sindell v. Abbott Lab., 26 Cal. 3d 588, 163 Cal. Rptr. 132, 607 P.2d 924, cert, denied, 449 U.S. 912 (1988). The approach taken by the Namm court rejected the market share rule announced by Sindell. The Namm court recognized that to hold the forty-four defendants in the case liable in the absence of evidence that any of them manufactured the DES ingested by the plaintiff's mother would constitute a “taking” of the property of all the defendants to pay for harm which may have been caused by none of them. Namm, 178 N.J. Super, at 33, 427 A.2d at 1128 (App. Div. 1981). The New Jersey Supreme Court has declined to address the validity of the Namm court's reasoning. See Salomon v. Eli Lilly & Co., 98 N.J. 58, 484 A.2d 320 (1984).

The U.S. District Court for the District of New Jersey ruled that the New Jersey Supreme Court would adhere to its decision in Scanlon v. General Motors Corp., 65 N.J. 582, 326 A.2d 673 (1974). The Scanlon decision required that the “plaintiff must prove, as an essential element of the case, that the defendant manufacturer actually made the particular product accused of having caused injury” thereby rejecting theories of alternative liability, market share liability and enterprise liability. Scanlon, 65 N.J. at 583, 326 A.2d at 674; Pipon v. Burroughs Wellcome Co., 532 F. Supp. 637, 638 (D.NJ. 1982), aff'd nom., 696 F.2d 984 (3d Cir. N.J. 1982).

160 611 F. Supp. 1267 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987).

161 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987)[hereinafter Agent Orange opt-out].

162 Lilley, 611 F. Supp. at 1269, 1285.

163 Agent Orange opt-out, 611 F. Supp. at 1229, 1263 (emphasis added).

164 Judge Weinstein's application of shifting concepts - that proof of causation is essential for the opt-out cases, while some proportionate liability rule which does not require particularistic proof of causation, seems to be the rule for class actions obviously is pragmatic rather than logical. An attempt to reconcile the two approaches will not be made.

165 477 U.S. 317 (1986). Other recent Supreme Court cases which can be read as encouraging lower courts to be less sparing in the granting of summary judgments include: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)(libel), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)(antitrust).

166 Note, Admissibility of Expert Medical Testimony as to Future Consequences of Injury as Affected by Expression in Terms of Probability or Possibility, 75 A.L.R.3d 9, 25-30 (1977). The words “reasonable certainty” only really require that an expert intends to signify a probability supported by some rational basis. See Mattot v. Ward, 48 N.Y.2d 455, 461, 399 N.E.2d 532, 535 (1979). Louisiana appears to have a contrary rule which provides that the possibility of future harm may be considered. See Anderson v. Welding Testing Lab., Inc., 304 So. 2d 351, 353 (La. 1974); Heider v. Employers Mut. Liab. Ins. Co., 231 So. 2d 438, 441-42 (La. App. 1970).

167 For example, when an arterial injury results in scar formations, which increase the risk of a stroke or aneurism, the injured person may recover for this increased risk. See Dunshee v. Douglas, 255 N.W.2d 42 (Minn. 1977). Susceptibility also is regarded as compensable when a skull fracture and loss of spinal fluid increases an individual's “susceptibility” to meningitis. See Feist v. Sears, Roebuck & Co., 267 Or. 402, 410-13, 517 P.2d 675, 679-81 (Ore. 1973); see also Sterling v. Velsicol Chem. Corp., 647 F. Supp. 303, 303-04, 321 (W.D. Tenn. 1986)(court, suggesting that “enhanced risk” is an element of damages generally recognized as compensable under “traditional principles of damage law,” awarded $5,223,492 in compensatory damages to five flagship class action plaintiffs including damages for increased risk of disease); Starling v. Ski Roundtop Corp., 493 F. Supp. 507 (M.D. Pa. 1980)(knee injury with resulting risk of arthritis); Lindsay v. Appleby, 91 I11. App. 3d 705, 714, 414 N.E.2d 885, 891 (1980)(whiplash injury creating propensity to seizures); Jordan v. Bero, 158 W.Va. 28, 59, 210 S.E.2d 618, 635 (1974)(brain injury resulting in propensity toward personality changes, memory changes, seizures, etc.); Redman v. Sooter, 1 I11. App. 2d 406, 409, 274 N.E.2d 200, 202 (1971) (fracture of knee joint would most certainly develop into arthritis and limitation of motion could become permanent); Mack v. McGratfi, 276 Minn. 419, 423, 150 N.W.2d 681, 689 (1967)(loss of one kidney put plaintiff at a greater risk should remaining kidney malfunction); Schwegel v. Goldberg, 209 Pa. Super. 280, 287, 228 A.2d 405, 408-09 (1967) (skull fracture and brain injury created greater risk of epileptic seizures); Lorenc v. Chemirad Corp., 37 N.J. 56, 76-78, 179 A.2d 401, 411-12 (1962) (chemical burn raised probability of future malignancy).

168 Stites v. Sundstrand Heat Transfer, Inc., 660 F. Supp. 1516 (W.D. Mich. 1987), modified, 2 Toxics L. Rep. (BNA) 681 (Nov. 9, 1987)(recovery denied to plaintiffs who had been exposed to trichlorethylene in drinking water); Herber v. Johns-Manville Corp., 785 F.2d 79, 88-89 (3rd Cir. 1986)(recovery denied to asymptomatic plaintiff who had been exposed to asbestos cement even though plaintiff has been diagnosed as having a pleural thickening which indicated a risk of cancer); Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985)(recovery denied to plaintiff who had asbestosis for increased risk of lung cancer or mesothelioma); Laswell v. Brown, 683 F.2d 261, 269 (8th Cir. 1982) (sustained district court dismissal of claims for risk of genetic defects); Brafford v. Susquehanna Corp., 586 F. Supp. 14, 17 (D. Colo. 1984)(court denied right of action to persons who resided near uranium mining facility and had been exposed to high levels of radon); Plummer v. Abbott Lab., 568 F. Supp. 920 (D.R.I. 1983)(no recovery for risk of cancer by woman who used DES); Mink v. University Chicago, 460 F. Supp. 713, 719 (N.D. 111. 1978)(no claim for increased risk of cancer in DES case); Devlin v. Johns-Manville Corp., 495 A.2d 495, 496 (N.J. Super. 1985)(asbestosis plaintiffs may not recover for risk of cancer); Avers v. Jackson Township, 189 N.J. Super 561, 461 A.2d 184 (1983) (no action for increased risk resulting from private well contamination from landfill); Morrisey v. Eli Lilly & Co., 76 111. App. 3d 753, 32 111. Dec. 30, 394 N.E.2d 1369 (1979)(no class action for DES daughters since there can be no recovery for increased risk); see also Clemas v. Northern States Enterprises, Inc., 361 N.W.2d 149 (Minn. Ct. App. 1985); Reliance Ins. Co. v. Arneson, 322 N.W.2d 604, 607 (Minn. 1982); Johnson v. Rouchleau-Ray Iron Land Co., 140 Minn. 289, 168 N.W. 1 (1918); contra Martin v. Johns-Manville Corp., 469 A.2d 655 (Pa. Super. 1983) (asbestosis plaintiff may recover for possibility of bronchogenic carcinoma).

169 Note, Increased Risk of Disease from Hazardous Waste: A Proposal for Judicial Relief, 60 WASH. L. REV. 635 (1985); Note, Increased Risk of Cancer as Actionable Injury, 18 GEO. L. REV. 563 (1984).

170 Cf Eagle-Picher Indus. Inc. v. Cox, 481 So. 2d 517 (Fla. App. 3d Dist. 1985), rehearing denied, 492 So. 2d 1331 (1986).

171 RESTATEMENT OF JUDGMENTS §§ 26(1)(b) and (f).

172 Herber v. Johns-Manville Corp., 785 F.2d 79, 82 (3rd Cir. 1986); Adams v. Johns-Manville Sales Corp., 727 F.2d 533, 538 (5th Cir. i n4) (Louisiana law); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 112 (D.C. Cir. Id82); Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 399 N.W.2d 1 (1986); Devlin v. Johns-Manville Corp., 495 A.2d 495, 502, 202 N.J. Super. 556, 558 (1985); Martinez v. Richardson-Merrell, Inc., 105 Cal. App. 3d 316, 164 Cal. Rptr. 591 (1980) (separate causes of action for dermatitis and cataracts where both were the result of ingestion of an anti-cholesteral drug, see also Sheppard v. A.C. & S. Co., 498 A.2d 1126 (Del. Super. 1985) (court applied discovery rule in asbestos case and approved of flexibility in the application of the rule against splitting a cause of action).

A pragmatic solution was reached by a San Francisco county trial court in the case of Arnett v. Dow Chemical Company, SF Master File No. 729,586, Judicial Council Coord. Proceeding No. 954 (Mar. 21, 1983)(Hon. Daniel H. Weinstein). In this DBCP case, exposed workers not only were suffering from sterility but also were concerned about the risk of cancer. The court refused to allow recovery either for the increased risk of cancer, or for the fear of cancer because the defendants were willing to enter into a stipulation that if the plaintiffs contracted cancer in the future, the defendants would not contend that the later action was barred by the statute of limitations or by the rule against splitting a cause of action. Id. This ruling seems to be fair, and a ruling that probably will be followed by a number of courts.

173 See, e.g., Clark v. Taylor, 710 F.2d 4, 14 (1st Cir. 1983)(prisoner subjected to direct skin application of benzidine); Evers v. Dollinger, 95 NJ. 399, 471 A.2d 405 (1984)(entitled to damages for emotional distress as part of a claim for fear of cancer); Anderson v. Welding Testing Lab., Inc., 304 So. 2d 351 (La. 1974)(radiation burns from handling radioactive pill); Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996 (1958)(blisters failed to heal for a number of years after receiving x-ray treatments for bursitis); see also Martin v. New Orleans, 678 F.2d 1321 (5th Cir. 1982) (anxiety due to bullet being lodged in neck); Heider v. Employers Mut. Liab. Co., 231 So. 2d 438 (La. App. 1970)(fear of epilepsy as a result of head injuries); Figlar v. Gordon, 133 Conn. 577, 53 A.2d 645 (1947)(fear of epilepsy as a result of brain injury); Annotation, Anxiety as to Future Disease, Condition, or Death Therefrom, as Element of Damages in Personal Injury Action, 71 A.L.R.2d 338.

174 See, e.g., Amader v. Johns-Manville Corp., 514 F. Supp. 1031 (E.D. Pa. 1981); Payton v. Abbott Lab., 386 Mass. 540, 437 N.E.2d 171 (1982).

It is in recognition of the tricks that the human mind can play upon itself, as much as of the deception that people are capable of perpetrating upon one another, that we continue to rely upon traditional indicia of harm to provide objective evidence that a plaintiff actually has suffered emotional distress.

Payton, 368 Mass. at 547, 437 N.E.2d at 175; Plummer v. Abbott Lab., 568 F. Supp. 920 (D.R.I. 1983); Ayers v. Jackson Township, 189 NJ. Super. 561, 461 A.2d 184 (1983); Nutt v. A.C. & S., Inc., 466 A.2d 18 (Del. Super. 1983).

175 RESTATEMENT OF TORTS §§ 313, 346, 436A; Stites v. Sundstrand Heat Transfer, Inc., 660 F. Supp. 1516 (W.D. Mich. 1987), modified, 2 Toxics L. Rep. (BNA) 681 (Nov. 9, 1987)(Michigan law); Sypert v. United States, 559 F. Supp. 546 (D.D.C. 1983)(Virginia law); Jackson Township, 189 NJ. Super, at 561, 461 A.2d at 184; Cathcart v. Keene Indus. Insulation, 471 A.2d 493 (Pa. Super. 1984). Some courts continued to apply the generally discredited rule that there can be no recovery in the absence of an impact, though impact has been interpreted liberally enough to include the impingement of tuberculosis bacilli on the lungs. See, e.g., Plummer v. United States, 580 F.2d 72 (3rd Cir. 1978)(Pennsylvania law). Other courts have disallowed damages merely because the fear was unreasonable or remote in the particular circumstances. See, e.g., Winik v. Jewish Hosp. Brooklyn, 31 N.Y.2d 936, 293 N.E.2d 95 (1975); Howard v. Mt. Sinai Hosp., Inc., 63 Wis. 2d 515, 217 N.W.2d 383 (1974), rehg denied, 63 Wis. 2d 575, 219 N.W.2d 576 (1974)(fear of cancer so out of proportion to culpability of tortfeasor that recovery denied as a matter of public policy).

176 Jackson v.Johns-Manville, 781 F.2d 394 (5th Cir. 1986)(Jackson III);Jackson v.Johns- Manville, 750 F.2d 1314 (5th Cir. 1985)0ackson II);Jackson v.Johns-Manville, 727 F.2d 506 (5th Cir. 1984)(Jackson I).

177 See Hagerty v. L & L Marine Serv., Inc., 788 F.2d 315 (5th Cir. 1986)(Jones Act) (plaintiff testified that a doctor advised him to undergo periodic testing for cancer and that he subsequently left his job as a tankerman out of concern for his health); Adams v. Johns-Manville Sales Corp., 783 F.2d 589 (5th Cir. 1986)(Louisiana law); Dartez v. Fibreboard, 765 F.2d 456 (5th Cir. 1985)(Texas law); Gideon v.Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985)(Texas law). A result similar to the one reached in Hagerty, was reached by the New Jersey Superior Court in Devlin v. Johns-Manville Corporation, 495 A.2d 445 (N.J. Super. 1985); see Taylor v. Baptist Med. Center, 400 So. 2d 369 (Ala. 1981)(court, rejecting the physical injury requirement as procrustean, allowed damages for the anguish of the birth of a still-born).

178 In re Moorenovich, 634 F. Supp. 634 (D. Me. 1986).

179 Eagle-Pitcher Indus., Inc. v. Cox, 481 So. 2d 517 (Fla. App. 3d Dist. 1985), reh'gdenied, 492 So. 2d 1331 (1986).

180 In re Moorenovich, 634 F. Supp. at 637.

181 Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983)(passenger trapped in elevator); Molien v. Kaiser Found. Hosp., 27 Cal. 3d 916, 167 Cal. Rptr. 831, 616 P.2d 813 (1980)(medical malpractice); Sinn v. Burd, 404 A.2d 672 (Pa. 1979)(bystander case); Leong v. Takasaki, 520 P.2d 758 (Haw. 1974)(bystander case); see Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 GEO. LJ. 1237 (1971); Note, Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U. CHI. L. REV. 512 (1968).

182 Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 437 (Me. 1982); 27 Cal. 3d at 930, 167 Cal. Rptr. at 839, 616 P.2d at 821; Sinn, 404 A.2d at 683.

183 Chappetta v. Bowman Transportation, Inc., 415 So. 2d at 1022.

184 Portee v.Jaffee, 84 N.J. 88, 101, 417 A.2d 521, 528 (1980).

185 Bass, 646 S.W.2d at 772-73 & n.4; Leong, 520 P.2d at 766-67; Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, supra note 181, at 1255; Note, Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, supra note 181, at 517 (” ‘[h]arm,’ then, is mental distress serious enough to require medical attention“).

186 Culbert, 444 A.2d at 437; Molien, 27 Cal. 3d at 927-28, 167 Cal. 3d 837-39, 616 P.2d 819-20; Portee, 89 NJ. at 93-94,417 A.2d at 524; Sinn, 404 A.2d at 683; Leong, 520 P.2d at 765.

187 Gold, , A Carcinogenic Potency Database of the Standardized Results of Animal Bioassays, 58 ENVTL. HEALTH PERSP. 9 (1984).CrossRefGoogle Scholar

188 See, e.g., U.S. DEPT. HEALTH & HUMAN SERV., FOURTH ANNUAL REPORT ON CARCINOGENS 2 (1985).

189 In Agent Orange opt out, 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), the court rejected affidavits on causation which were based largely on the results of animal tests because the animals had been administered high concentrations of the chemical and the experiments involved different biological species. Id. at 1241. This decision was followed by the First Circuit Court in Lynch v. Merrell-National Laboratories. 830 F.2d 1190 (1st Cir. 1987).

190 Formaldehyde is an ubiquitous chemical, naturally produced by the body. It is “carcinogenic” only because it has produced nasal tumors in rats, but not in mice or any other species.

191 It is true that traditionally recovery for anxiety also is allowed as a part of a recovery award in a nuisance action. See Lunda v. Matthews, 613 P.2d 63 (Or. App. 1980)(dust, debris, fumes and operative noise from cement)(recovery for emotional distress and annoyance); Edwards v. Talent Irrigation Dist., 570 P.2d 1169 (Ore. 1977)(excess waste from irrigation ditch); Freeman v. Intalco Aluminum Corp., 15 Wash. App. 677, 552 P.2d 214 (1976)(flouride pollutants from factory); Nitram Chem. Inc. v. H. E. Parker, 200 So. 2d 220 (Fla. Ct. App. 1967)(noxious fumes from fertilizer plant); Alonzo v. Hill, 95 Cal. App. 2d 778, 214 P.2d 50 (1950)(allowing recovery for anxiety and damage to plaintiff's residence caused by blasting in nearby quarry)(recovery for discontent & annoyance); Dixon v. New York Trap Rock Corp., 293 N.Y. 509, 58 N.E.2d 517 (1944)(blasting). In such cases, the anxiety generally is limited to a situation having some demonstrable boundaries. The anxiety in cancerphobia cases, however, sometimes appears to be wholly disproportionate to the tortfeasors actions.

192 It has been argued that recovery should be allowed for fear because it is often difficult to ascertain whether a person actually has been injured. Bohrer, Fear and Trembling in the Twentieth Century: Technological Risk, Uncertainty and Emotional Distress, 1984 Wis. L. REV. 83.

193 Pub. L. No. 99-499, 100 Stat. 1613 (1986).

194 42 U.S.C. § 9607(a)(1982 & Supp. 1986).

195 Id. at § 9607(a)(l)(imposes liability on the current owners), (a)(2)(imposes liability on the person who owned it at the time hazardous substances were disposed). “Facility” is defined broadly to include any area where a hazardous substance has come to be located. 42 U.S.C. § 9601(9)(1982 & Supp. 1986).

196 42 U.S.C. 19607(a)(3).

197 Id. at § 9607(a)(4).

198 Although the placement of the quoted language suggests that the causation requirement only applies to § 9607(a)(4), which deals with individuals who accept substances for transportation, the causation requirement actually was intended to qualify subparagraphs (1) through (4) of § 9607(a). The placement of the quoted language was due to a printer's error. See New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n.16 (2d Cir. 1985).

199 Id.

200 RESTATEMENT (SECOND) OF TORTS § 839; Nuisances, 59 AM.JUR. 2D § 49 (1982).

201 577 F. Supp. 1326 (E.D. Pa. 1983).

202 14 ENVTL. L. REP. 20,272 (D.S.C. 1984).

203 630 F. Supp. 1361 (D.N.H. 1985).

204 21 E.R.C. (BNA) 2167 (CD. Calif. 198,4).

205 See Wade, 577 F. Supp. at 1326 (failing to enlighten the reader about the nature of the alleged pollution at the Chester, Pennsylvania dump site); SCRDI, 14 ENVTL. L. REP. at 20,274 (stating that the dump site in that case contained 7,200 55 gallon drums that were randomly and haphazardly stacked causing fires, explosions and noxious and toxic fumes); Ottati, 630 F. Supp. at 1372-76 (relating that this case involved a complex mix of contaminants in several adjoining sites); and Cauffman, 21 E.R.C. (BNA) at 2168 (stating that the defendant's disposal of hazardous waste resulted in an explosion and fire that released hazardous substance into the environment).

206 42 U.S.C. § 9607(a).

207 The Wade opinion contradicts itself. In one place the court says that the generators are protected adequately by requiring the plaintiff to prove that the defendant disposed of the hazardous waste at the site, while also stating that the plaintiff is required to prove that “the substances that make the defendant's waste hazardous are also present at the site.” 577 F. Supp. at 1332-33 (emphasis added). This suggests that if a release of TCE occurs at a site, the plaintiff at least must prove that the defendant dumped TCE at that site.

Later, the court says “thus, the release which results in the incurrence of response costs and liability need only.be of'a’ hazardous substance and not necessarily one contained in the defendant's waste.” Id. at 1333. This suggests that if the defendant disposed of TCE and the site contains a 2,4-D, the defendant nevertheless will be required to clean it up. It is not clear that this would occur if the expert witnesses in the case agreed that the presence of TCE alone is not of sufficient to become concerned about requiring a clean up; nor is it clear that this merely means that each defendant who has made a substantial contribution to the need for clean-up should be held responsible. Except for the fact that the SCRDI court does not want to be bothered by difficult questions of proof, the opinion is too general to draw a conclusion as to what the court actually is saying.

208 SCRDI, 14 ENVTL. L. REP. at 20,275.

209 See United States v. Bliss, 667 F. Supp. 1298, 1309-10 (E.D. Mo. 1987)(holding that CERCLA requires a “weaker” or “relaxed” causation standard); United States v. Stringfellow, 661 F. Supp. 1053, 1060-61 (CD. Calif. 1987)(indicating that “traditional causation” need not be proven).

210 The problems of constructing such a fingerprint are immense. Although all chemicals have a unique molecular structure, some of the atoms which make up the rings will be adsorbed to the organic materials of the soil while others will not. See generally J. BEAR, HYDRAULICS OF GROUND WATER (1979); Means, , Wood, , Hassett, & Barnwart, , Sorption of Polynuclear Aromatic Hydrocarbons by Sediments and Soils, 14 ENVTL. SCI. & TECH. 1524 (1980);CrossRefGoogle Scholar Karickhoff, , Brown, & Scott, , Sorption of Hydrophobic Pollutants on Natural Sediments, 13 WATER RES. 241 (1979).CrossRefGoogle Scholar As a result, the transport of a substance from point A to point B may change its chemical appearance, thus confounding the identification process. One also may question whether the change in structure eliminates any of the hazards which are associated with the chemical. The “bay region” theory of carcinogenesis by polycyclic aromatic hydrocarbons (products of combustion) is that there is a positive correlation between molecular structure and carcinogenicity. See Santodonato, , Howard, & Bass, , Health and Ecological Assessment of Polynuclear Aromatic Hydrocarbons, 5 J. ENVTL. PATHOL. TOXICOL. 1 (1981);Google Scholar Conney, , Induction of Microsomal Enzymes by Foreign Chemicals and Carcinogenesis by Polycyclic Aromatic Hydrocarbons, 42 CANCER RES. 4875, 4888 (1982).Google Scholar As a result, the whole problem of fingerprinting is rather complex and it may be sound to shift the problem of proof to the defendant and his consultants.

211 See H. R. No. 7020, 96th Cong., 2d Sess. § 3071(a)(l)(1980).

212 H. REP. NO. 96-1016, Part I, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S. CODE CONG. & ADMIN NEWS 6119, 6136.

213 S. 1480, as introduced and reported out of Committee, provided that “any person who caused or contributed or is causing or contributing to such discharge or release” shall be liable for certain response costs.

214 S. REP. NO. 848, 96th Cong., 2d Sess. (1980), which accompanied S. 1480 out of committee stated:

The approach of [Senate Bill] 1480 was well expressed in Green v. General Petroleum Company (a 1928 California case) where the court held oil drilling in a residential area to be an ultrahazardous activity for which strict liability should be invoked: Where one, in the conduct and maintenance of an enterprise lawful and proper in itself, deliberately does an act under known conditions, and, with knowledge that injury may result to another, proceeds, and injury is done to the other as the direct and proximate consequences of the act, however carefully done, the one who does the act should, in all fairness, be required to compensate the other for damage done.

Id. (emphasis added). The Report stated that “[b]y holding the factually responsible person liable, S. 1480 encourages that persons - whether a generator, transporter or disposer of hazardous substances - to eliminate as many risks as possible” Id. (emphasis added).

In the Senate debate on the Stafford-Randolph Substitute, prior to the bill's passage by the Senate on Nov. 24, 1980, Senator Jennings Randolph observed that the provisions of the compromise bill:

contain some changes from the language from that in the bill reported by the Committee on Environmental and Public Works [i.e., S. 1480]. The changes were made in recognition of the difficulty in prescribing in statutory terms liability standards which will be applicable in individual cases. The changes do not reflect a rejection of the standards in the earlier bill.

Id. at S. 14963 (emphasis added).

The earlier bill, S. 1480, had contained an express causation requirement which was commented upon at length in S. REP. NO. 96-848. During this debate, Senator Randolph had stated that CERCLA § 107 “assures that the costs of chemical poison releases are borne by those responsible for the releases.” Id. (emphasis added). Another proponent of the compromise legislation, Senator Robert T. Stafford, observed that “[t]his [bill] is not an embodiment of other forms of no fault liability or innovative federal intrusion into the law now developing within the individual state jurisdictions.” 126 CONG. REC. 15,008. Other proponents also were consistent in their understanding that causation was an element of a response cost recovery action under the Stafford Randolph Substitute. See, e.g.. Remarks by Representative James J. Florio, 126 CONG. REC. at 11,787; Remarks by Representative James M.Jeffords, 126 CONG. REC. at 11,796; Remarks by Senator George J. Mitchell, 126 CONG. REC. at 14,973; Remarks by Senator John C. Culver, 126 CONG. REC. at 14,984 (emphasis added). Senator Jesse Helms, an opponent of S. 1480 but whose compromise allowed CERCLA to come before the Senate, stated that “[t]he Government can sue a defendant under the bill only for those costs and damages that he can prove were caused by the defendants conduct.” 126 CONG. REC. at 15,004.

215 Idaho v. Bunker Hill Co., 635 F. Supp. 665, 674 (D. Idaho 1986).

216 Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 1283 (D. Del. 1987).

217 It is important to recognize that in enacting CERCLA, Congress was concerned primarily with abandoned dumps. See H. REP. NO. 96-1016 Part I, 96th Cong., 2d Sess. 18-20, reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 6119, 6121-22. The frequent references to chemical spills, illicit dumping and waste disposal sites indicate that dump sites, along with oil spills and hazardous substance spills, were uppermost among the Congressional objectives in enacting CERCLA. Other bills relating to oil and hazardous substance spills had been introduced, but all of these had given way to the Stafford-Randolph substitute compromise bill. See 1 ENVTL. L. INST., SUPERFUND: A LEGISLATIVE HISTORY (1982). Obviously, the statute is not limited to former dumps or spills. “Facility” is defined broadly in § 101(9) to include any area where a hazardous substance has come to be located. 42 U.S.C. § 9601(9). The contamination which is the focus of the EPA's efforts is, however, sometimes merely the inevitable residue of any industrialized society.

218 Where agency action constitutes neither rule-making nor adjudication, the Supreme Court has regarded the agency's views as merely advisory. See Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift & Co., 323 U.S. 134 (1944).

219 United States v. Reilly Tar & Chem. Corp., 606 F.Supp. 412 (1985). The City of St. Louis Park City was the suburb which joined as a plaintiff but then cross-claimed against the State of Minnesota for the cost of any remedial measures which were imposed upon it.

220 Benzo[a]pyrene [BAP] occasionally was detected at less than one nanogram per liter (part per trillion). In addition, pyrene, fluoranthene, anthracene and naphtacene were detected at concentrations of 200-8000 ng/1. BAP is considered by the International Agency for Research on Cancer to be carcinogenic to laboratory animals. See 32 IARC, EVALUATION OF THE CARCINOGENIC RISK OF CHEMICALS TO HUMANS POLYNUCLEAR AROMATIC COMPOUNDS 216-17 (1983). Pyrene, fluoranthene, and anthracene are not. Id. at 115, 360, 439. Naphthacene is not listed by the EPA carcinogen assessment group to be an animal carcinogen. Fluoranthene has produced tumors in new-born mice, whose metabolic systems have not yet been developed. Busby, Tumorigenicity of Fluoranthene in a Newborn Mouse Luns Adenoma Bioassay, 5 CARCENOGENISIS 1311 (1984).

221 See, e.g., St. Paul Dispatch, Nov. 14, 1978; St. Paul Dispatch, Nov. 17, 1978; St. Louis Park Sun, Sept. 19, 1979; Minneapolis Trib., Sept. 11, 1979; Minn. Dept. Health News Release, Sept. 11, 1979; Minn. Dept. Health, Disease Control Newsletter (Oct. 1979).

222 This also appears to be the situation with respect to the Stringfellow site in California. See HAZARDOUS WASTE LIT. REP. at 447, 447-48.

223 See, e.g.. Deposition of Bertram Carnow, Mar. 20, 1985, at 64-65.

Q. Although we can't establish where the threshold exists, does that, in your opinion from a biological standpoint mean that they don't exist? A. No. That's not what it means. It means that there may be a threshold, but we don't know what it is. And if we don't know what it is we have to assume that zero — only zero is safe and only zero is a threshold, since what everything else I said about cancer is true. Id.

224 MINN. DEPT. HEALTH, FEASIBILITY OF COMMUNITY-WIDE EPIDEMIOLOGIC STUDIES OF DRINKING WATER AND HEALTH: ST. LOUIS PARK AND NEW BRIGHTON (Dec. 31, 1985).

225 An effort was made by the authors to canvass the defendants’ attorneys in CERCLA cases. The response, however, was insufficient to permit generalizations concerning the issues involved.

226 The following examples may be helpful in trying to understand a part per trillion. A part per trillion has been described as one standard drop compared to the water in 36 Olympic-sized swimming pools; one standard U.S. postage stamp compared to the size of South Carolina, New Hampshire or Indiana; or one average human hair compared to all the hairs on all the heads of “all the people living in Minnesota, Wisconsin and Iowa combined, assuming that no one is bald and that all babies in these states are born with full heads of hair.” Shindell, The Receding Zero, ACSH NEWS & VIEWS 10, 10-11 (Nov.-Dec. 1985).

227 As a matter of policy, EPA and the Department of Justice will not enter into consent decrees or give releases with respect to “hazards” which are not recognized explicitly as being involved in the current controversy. See MEMORANDUM: INTERIM CERCLA SETTLEMENT POLICY (Dec. 5, 1984), reprinted in ENVTL. L. REP. 35,050, 35,050-59 (1987).

228 For a discussion of the benzene and formaldehyde cases, see supra text accompanying notes 89-98.

229 F. HABICHT, & S. JAWETZ, SUPERFUND ENFORCEMENT AFTER REAUTHORIZATION: How MUCH WILL THE PROCESS CHANGE?, paper presented at American L. Inst., American Bar Ass'n and Environmental L. Inst, seminar in Washington, D.C. on Oct. 23-25, 1986.

230 Id.

231 Section 106(a), 42 U.S.C. § 9606, imposes a $5,000/day penalty. Section 107(c)(3), 42 U.S.C. § 9607(c)(3), further provides that a person who “without sufficient cause” fails to provide remedial action after being ordered to do so, “may be liable” to the United States for punitive damages “in an amount at least equal to, and not more than three times the amount of any costs incurred by the Fund… .” Id. Sipce the violator also will be liable for the costs themselves, his exposure actually is to four-fold damages.

232 599 F. Supp. 69 (CD. Cal. 1984).

233 209 U.S. 123 (1908); see also Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1119 (2d Cir. 1975), cert, denied, 426 U.S. 911 (1976); Oklahoma Operating Co. v. Love, 252 U.S. 331 (1920); Wadley Southern Ry. v. Georgia, 235 U.S. 651 (1915); Missouri Pac. Ry. v. Nebraska, 217 U.S. 196, 207-08 (1910); but see Reisman v. Caplan,;375 U.S. 440 (1964).

234 United States v. Reilly Tar & Chemical Corp., 606 F. Supp. 412 (1985).

235 Wagner Elec. Corp. v. Thomas, 612 F. Supp. 736 (D. Kan. 1985).

236 Industrial Park Devel. Co. v. EPA, 604 F. Supp. 1136 (E.D. Pa. 1985).

237 Aminoil, 599 F. Supp. at 75. A later opinion in the same case holds that to recover punitive damages, the Government must show that the defendant's refusal to comply was not in good faith. Aminoil, Inc. v. United States, 646 F. Supp. 294, 299 (CD. Calif. 1986).

238 industrial Park, 604 F. Supp. at 1142-43. The Pennsylvania District Court's language reveals its reaction to the EPA's activities:

[F]urther development of the Government's case may explain the action of the EPA, but on the present record, it suggests an arrogance of power that is bureaucracy at its worst, the Government's assertion that its conduct is completely insulated from court review initiated by those harmed thereby compounds the problem.

Id. at 1143-4

239 Reilly Tar, 606 F. Supp. at 421.

240 Wagner Elec, 612 F. Supp. at 743-45. (this interpretation was adopted in order for the statute to pass constitutional muster); see also Reilly Tar, 606 F. Supp. at 419 n.3.

241 In Reilly Tar there was greater unfairness than in the other cases discussed because the Government had sought injunctive and other relief in the federal court four years before issuing an administrative order to Reilly Tar. The administrative order was like an end-run on the judicial process because the parties had been preparing for trial and the court already had issued a case management order which set discovery deadlines and bifurcated the case into two phases. The first phase focused on the remedy, while the second phase focused on other issues. See Reilly Tar, 606 F. Supp. at 414-15.

242 See United States v. Hardage, 663 F. Supp. 1280 (W.D. Okla. 1987). The recentlyenacted amendments to the Safe Drinking Water Act provide that if a penalty of under $5,000 is sought, the penalty may be assessed in a hearing pursuant to § 554 of title 5 of U.S.C. which requires a hearing on the record by an independent agency employee. If a penalty of over $5,000 is sought, the penalty only may be assessed by a federal district court. Safe Drinking Water Act Amendments of 1986, Pub. L. No. 99-339, § 102(d), 100 Stat. 642, 647-48 (1986).

243 In United States v. Dickerson, the court reasoned that in a subsequent cost-recovery action, the court would inquire whether the EPA deviated from the NCP. 660 F. Supp. 227 (M.D. Ga.), aff'd, 834 F.2d 974 (11 th Cir. 1987). In Wagner Seed Co. v. Daggett, the plaintiff did not object to the remedy, but rather contended that the EPA apparently was ignoring his “act of God” defense. The court held that the plaintiff would have a “good faith” defense in any cost-recovery action. 800 F.2d 310 (2nd Cir. 1986). In Lone Pine Steering Committee v. United States E.P.A., the court held that pre-enforcement review is not available, based upon the observation that “[t]he courts are not unaware of bureaucratic excesses and will undoubtedly look carefully at the claims made by the government when suit is brought under § 9607.” 777 F.2d 882 (3rd Cir. 1985), cert, denied, 476 U.S. 1115 (1986). See Wheaton Indus, v. United States E.P.A., 781 F.2d 354 (3rd Cir. 1986)(follows Lone Pine ruling). In J. V. Peters & Co., Inc. v. Administrator, E.P.A., the court reasoned that there was no action to challenge a governmental cleanup proceeding under § 104(a) because of the statutory and regulatory requirements that the cleanup be cost-effective. 767 F.2d 263 (6th Cir. 1985). The Peters court also relied upon a lower court opinion, Industrial Park Development Co. v. E.P.A., which held that the EPA would not be permitted to impose sanctions or impose costs later found to be unjustified. Id. at 266 (citing Industrial Park, 604 F. Supp. 1136 (E.D. Pa. 1985)); see also Earthline Co. v. Kin- Buc, Inc., 21 ERC 2161 (D.N.Y. 1984) (after enforcement proceeding is commenced parties may assert their objections as defenses or counterclaims).

In United States v. Outboard Marine Corp., the defendants, which included Monsanto Corp., were so outraged at the government's proposal to dismiss the CERCLA § 106 case without prejudice, that in their objection to the government's proposed dismissal, the defendants asked either the case be set for trial on the issue of alleged harm caused by PCBs and the costeffectiveness of the proposed solution, or the case be dismissed with prejudice, 789 F.2d 497 (7th Cir. 1986). The court allowed the case to be dismissed without prejudice, but only after reasoning that in the cost recovery action, the defendants will be allowed to raise a “costeffectiveness” defense. Id. at 506.

244 40l U.S. 402 (1971).

245 HAZARDOUS WASTE LIT. REP. 10, 229 (Jan. 5, 1987).

246 United States v. Conservation Chem. Co., 661 F. Supp. 1416 (W.D. Mo. 1987); United States v. Hardage, 663 F. Supp. 1280 (W.D. Okla. 1987).

247 EPA legal counsel have taken the position that these decisions are based on the fact that the lawsuits were commenced prior to SARA. ABA SATELLITE SEM. SUPERFUND AMENDMENTS: NEW HAZARDOUS WASTE CLEANUP REQUIREMENTS (Jan. 5, 1987). This position, however, ignores the substantive reasoning of both cases.

248 26 ERC (BNA) 1559 (S.D. Ind. 1987).

249 Toxics L. Rep. (BNA) 644-45 (Nov. 4, 1987).

250 United States v. Vertac Chem. Corp., 671 F. Supp. 595 (E.D. Ark. 1987); United States v. Rohm & Haas Co., 669 F. Supp. 672 (D.N.J. 1987); United States v. Nicolet, Inc., 17 ENVT'L L. REP. 21,091 (E.D. Pa. 1987)(point not disputed).

251 For a discussion of the expansion of decisions requiring a trial-type hearing, see Friendly, Some Kind of Hearing, 123 UNIV. PA. L. REV. 1267, 1273-79 (1975).

252 397 U.S. 254, 264 (1970).

253 424 U.S. 319 (1976). This case held that the due process clause of the fifth amendment does not require an evidentiary hearing prior to termination of social security medical benefits. The Court stressed the more serious nature of termination of general welfare benefits, since general assistance benefits are based on need, while medical benefits are not and termination of the general assistance benefits, pending the resolution of the controversy, creates the risk that an eligible recipient may be deprived of the means to live while he awaits the decision.

254 Id. at 335.

255 The defendants in the Seymour case face potential liability in excess of $25 million. Total response costs that have been or will be incurred at 2500 waste sites has been conservatively estimated at $125 billion. See Thomas, , The Tort System's Ticking Time Bomb, 2 INS. LIT. REP. 24 (Mar. 9, 1988).Google Scholar

256 52 U.S. (18 How.) 272 (1856); American Ins. Co. v. Carter, 26 U.S. (1 Pet.) 511 (1828).

257 458 U.S. 50 (1982); Crowell v. Benson, 285 U.S. 22 (1932).

258 See supra note 70 and accompanying text.

259 Risk management by Congress has been said to be more of a political than a scientific or rational exercise. It is based on anecdotal, rather than empirical evidence, and compromise is the controlling rule. See Green, The Role of Congress in Risk Management, ABA Standing Comm. Envtl. L., supra note 12, at 2-6. Rather than enact a single, comprehensive federal cancer policy, Congress has enacted a patchwork quilt of sometimes conflicting standards. Id. at 7-18.

260 No attempt has been made to explore the question of the extent to which a violation of a regulation, such as those contemplated under the Safe Drinking Water Act, will be accepted by the courts as evidence of negligence, or negligence per se. For a discussion of the opposing points of view on the issue of whether statutory violations are sufficient or conclusive evidence of negligence, see F. HARPER, F.JAMES & O. GRAY, 3 THE LAW OF TORTS § 17.6 (1986). These authors criticize the majority rule which is that statutory violations are regarded as negligence per se. Id. Some courts have said that the violation of an administrative regulation only is evidence of negligence, id., while several federal courts have held that violations of the Federal Food, Drug and Cosmetic Act or a regulation thereunder is negligence per se. See Griffin v. United States, 351 F. Supp. 10 (E.D. Pa. 1972), aff'd, 500 F.2d 1059 (3d Cir. 1974)(excessively neurovirulent polio vaccine); Orthopaedic Equip. Co. v. Eutsler, 276 F.2d 455 (4th Cir. 1960)(misbranded intramedullary nail); Lukaszewicz v. Ortho Pharmaceutical Corp., 510 F. Supp. 961 (E.D. Wis. 1981) (failure to give warning regarding oral contraceptives); Gober v. Revlon, Inc., 317 F,2d 47 (4th Cir. 1963)(uncontested that misbranding of cosmetic would be negligence per se).

Others have said that a violation creates a rebuttable presumption of negligence. See Roller v. Richardson-Merrell, Inc., 2 Prod. Liab. Rep. (CCH) H 9583 (D.D.C. 1983); Esaqui v. Dow Chem. Corp., 598 F.2d 727, 733 (2nd Cir. 1979); Keil v. Eli Lilly & Co., 490 F. Supp. 479, 480 (E.D. Mich. 1980). Kenny v. Scientific, Inc., 204 N.J. Super. 228, 497 A.2d 1310 (1985) (violation of laws on storage of toxic substances does not constitute negligence per se in a civil action). No matter what approach the courts select, a statutory violation only will establish negligence; it will not establish proximate cause. HARPER, JAMES & GRAY, supra; Koller, 2 Prod. Liab. Rep. (CCH) at 11 9583.

261 Solid State Cir., Inc. v. E.P.A., 812 F.2d 383 (8th Cir. 1987); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726 (8th Cir. 1986).

262 See supra text Section III(A)(1)&(2).

263 The onIy utility of such an approach would be in assisting the court in evaluating a class action settlement. The theory does not help in determining whether a putative class action is manageable because if the case is contested individual trials will be necessary on the issue of damages. Therefore, the arguments based upon utility are illusory.

It is disturbing conceptually, that the requirement of causation be eliminated in tort cases. It also is difficult, pragmatically, to pose any workable bounds on a theory that a plaintiff may recover damages from one who has not caused the injury. The authors are not impugning the use of statistical evidence by qualified witnesses, but it should be noted that lawyers and commentators sometimes contend that statistical associations speak for themselves and the generally accepted criteria for determining whether a suspected factor is a cause of a disease often is overlooked. These criteria are: (1) strength of the association, (2) consistency, (3) dose-response relationship, (4) chronological relationship, (5) specificity, (6) biological plausibility, (7) coherence, (8) experimental, and (9) analogy. See Last, Epidemiology and Health Information, in MAXCY-ROSEN PUBLIC HEALTH AND PREVENTIVE MEDICINE (12th ed. 1986); Hill, The Environment and Disease: Association or Causation, 58 PROCEEDINGS ROYAL SOC'Y MED. 295, 295-99 (1965). Criteria (6) and (7), biological plausibility and coherence, which generally are ignored by the pro-victim advocate who wants to find a financially responsible defendant without a scientifically credible witness. For discussions of the use of epidemiological evidence, see Black & Lilienfeld, Epidemiological Proof in Toxic Tort Litigation, 52 FORDHAM L. REV. 734 (1984); McElveen & Eddy, Cancer and Toxic Substances: The Problem of Causation and the Use of Epidemiology, 33 CLEVELAND ST. L. REV. 29 (1984); Dore, A Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-In-Fact, 7 HARV. ENVTL. L. REV. 429 (1983); Hall & Silbergeld, Reappraising Epidemiology: A Response to Mr. Dore, 7 HARV. ENVTL. L. REV. 441 (1983).

264 Woodward v. Glidden, 33 Minn. 108, 22 N.W. 127 (1885).