Medical Monitoring Damages: an Evolution of Environmental Tort Law
| Publication year | 1994 |
| Pages | 1533 |
| Citation | Vol. 23 No. 7 Pg. 1533 |
1994, July, Pg. 1533. Medical Monitoring Damages: An Evolution of Environmental Tort Law
This article examines (1) the vast amount of soil, ground-water and air pollution to which Americans are exposed each year, (2) the frequent ineffectiveness of traditional common law tort remedies for persons thus exposed and (3) an emerging solution for such exposed persons: the medical monitoring cause of action.
In this day and age, exposure to toxins is relatively widespread. Each year, U.S. industrial operations produce more than 500 million tons of hazardous waste, approximately two tons per year for every living American.(fn1) This generation of hazardous waste has led to a staggering number of hazardous waste sites across the nation. The Congressional Office of Technology Assessment estimates that the number of hazardous waste sites could eventually reach 500,000, an average of 10,000 sites per state.(fn2) Given that federal cleanup efforts are concentrated predominantly on the approximately 1,200 sites on the EPA's National Priority List, most of the other hazardous waste sites will see little, if any, cleanup or re-mediation efforts in the foreseeable future.
While thousands of hazardous waste sites contribute to soil and groundwater pollution, the nation's air is subjected to a vast array of chemical emissions. The EPA estimates that some 15,000 different airborne chemicals, totalling billions of pounds annually, are potentially capable of causing harm to human health or the environment. Nevertheless, fewer than 1,000 of these chemicals have even been evaluated for toxicity by federal agencies, due largely to a lack of resources.(fn3) Fewer still are actively regulated under federal law. The Clean Air Act Amendments of 1990 require the EPA to control only 189 of the most prevalent and hazardous toxic air pollutants.(fn4)
The widespread nature of chemical pollution means that more and more people are prone to exposure to toxic chemicals. Some 40 million persons---nearly 20 percent of the U.S. population---live within four miles of a hazardous waste site on the EPA's National Priority Last, and eight out often Americans live near some type of hazardous waste site.(fn5) Exposure to toxic chemicals can have severe side effects, in the form of cancer and serious disease. Comprehensive public health surveys reveal statistically significant correlations between levels of industrial toxins and various illnesses and mortality indices.(fn6)
While a certain degree of exposure to toxins is simply the price of living in modern society, a significant amount of such exposure can be traced to tortious conduct. Such conduct includes leaking hazardous waste sites, hazardous substance releases and unsafe levels of toxins and chemicals in the work place.
Traditional common law tort remedies are often inadequate when it comes to addressing the various cancers and diseases arising out of exposure to toxic chemicals. Individuals who develop such illness or disease face numerous potential difficulties in seeking legal recourse pursuant to traditional common law causes of action. These difficulties include statute of limitations problems, unknown or insolvent defendant polluters and stringent legal standards with respect to causation.
Many of the cancers and diseases caused by hazardous substances have extremely long latency periods and will not develop until many years, or even decades, after exposure occurs. If a plaintiff waits until an actual disease develops to file suit, the statute of limitations may well have run its course and the defendant may be insolvent or simply out of business. Even if the plaintiff overcomes these two hurdles, the difficulty in proving that the past exposure caused the present illness can be insurmountable.
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