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Volume 29, Issue 4 — April 1999


Multimedia Exposure Modeling in the Courtroom

by Rolf R. von Oppenfeld and Mark E. Freeze

Editors' Summary: The increasing number of toxic tort lawsuits in the courts today causes litigants to use a vast array of scientific methodologies and exposure models, which in turn add to the already high level of confusion among attorneys, judges, witnesses, and juries in the toxic tort courtroom. As a result, toxic tort lawyers must become experts in several scientific disciplines and be thoroughly familiar with state-of-the-art scientific data and studies in order to convince courts to exclude as much of their opponents' science — and to admit as much of their own science — as possible. This Article addresses the role of exposure modeling in establishing or refuting claims in toxic tort litigation that exposures to toxins have caused or increased the risk of illness or injury. The Article illustrates the delicate balance that a lawyer must consider when attempting to meet the increased role for lawyers established under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 23 ELR 20979 (1993), when presenting complex scientific evidence to jurors. The authors begin with an overview of toxic tort litigation and then examine various factors, methodologies, and uncertainties that litigants must take into account when performing exposure assessments and formulating trial strategies. The Article closes by discussing the courtroom presentation of exposure models and other scientific evidence.

Turn Out the Lights, the Party's Over: The Emerging Consensus on CERCLA Salvage Litigation Issues

by William D. Evans Jr.

Editors' Summary: The enactment of CERCLA in 1980 sparked an explosion of contentious litigation between EPA and potentially responsible parties (PRPs) concerning the liability of PRPs under the Act. After over a decade of litigation in which EPA usually emerged victorious, the focus of CERCLA litigation has shifted to secondary suits between PRPs for cost recoupment, contribution, and insurance coverage, and, consequently, new issues have arisen. This Article examines the issues that dominate the emerging case law for secondary CERCLA suits. It begins by summarizing how joint and several liability and contribution under the Act affect secondary suits. The Article next discusses how seven circuit court decisions addressing CERCLA secondary suit litigation settled the five crucial issues: (1) the appropriate statutory cause-of-action, (2) the extent of liability, (3) the applicable limitations period, (4) the preemption of state-law remedies, and (5) the appropriate factors for cost allocation. The Article concludes with a description of three proposals for uniform rules governing the maintenance of CERCLA secondary suit litigation.

Adding the RCRA Mixed Sewage Exclusion to Your Compliance Arsenal

by Joseph F. Madonia and E. Lynn Grayson

Editors' Summary: Unlike other regulatory provisions of RCRA, the mixed sewage exclusion has been largely ignored by legal and technical scholars. Industry may be overlooking a potentially attractive opportunity, however, because the exclusion exempts certain industrial wastewaters from the definition of "solid waste," thereby excluding those wastes from hazardous waste regulation under RCRA. This Article examines the mixed sewage exclusion and its implications for operating facilities. After looking at the exclusion's regulatory language, the authors discuss interpretations of the regulation under existing case law. The authors then address public policy considerations supporting the exclusion and examine the exclusion's regulatory history. The Article also responds to arguments that seek to limit the exclusion's scope. The authors conclude that despite unclear regulatory interpretations by some governmental entities, the mixed sewage exclusion is a viable compliance option for certain operations.