TOXIC TORTS The Symbolic Value of Tort Law

Is tort law effective? No—it has a chilling effect on innovation esp. in chemical industry and should be restricted Yes—but it has limitations and could better meet the needs of plaintiffs/victims

“the citizen plaintiff and the corporate defendant stand as symbols and standard-bearers for sharply divergent social and economic philosophies” Sheila Jasenoff, 115

Toxic torts exemplify reversion to primitive patterns of blaming in technologically advanced societies. Mary Douglas and Aaron Wildavsky, Risk and Blame

TOXIC TORTS Area of litigation identified in 1977 Did not attract attention in scholarly or popular literature until 1980s

CAUSATION: A LEGAL CONSTRUCT How plausible is this causal story? Does it satisfy “preponderance of the evidence” necessary for civil law?

5 TYPES OF EVIDENCE Epidemiological data* Animal testing In vitro cellular studies Epi data only accepted since polio and swine flu vaccine cases b/c it can’t show specific causation Chemical structure analysis Case reports (affidavits)

PLAINTIFF MUST SHOW BOTH FORMS CAUSATION General: injury could in principle be caused by x Specific: x did in fact cause the specific injury to this person Exposure to x amount Exposure for this duration Problem of access to records documenting

JUDGE AND JURY PREFER Eyewitness accounts Medical and clinical data from treating physicians who have directly examined the plaintiff Witnesses who bring numbers and causal stories to life

Courts overlook weak stories about general causation if presented with strong accounts of specific causation