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Making the Case for Causation in Toxic Tort Cases: Superfund Rules Don't Apply

July 2010

Citation: ELR 10640

Author: Joshua R. More and Melinda W. Hahn

While causation is often a paramount obstacle to prosecuting a toxic tort claim, judicial interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) generally has eliminated consideration of causation of actual injury or harm. Generally, under CERCLA's strict liability regime, no showing of causation of actual injury or harm at a site is required for liability to attach. This is important to understand, because too often parties presume that a potentially responsible party (PRP) under CERCLA also is liable to private parties under common-law tort theories, but this is more difficult than it seems. This Article compares the relative ease with which the government establishes liability of private parties under CERCLA to the more rigorous demonstration of causation that a plaintiff must make in a toxic tort case.

Joshua R. More is a Partner in Schiff Hardin LLP's Environmental Group. Melinda W. Hahn is a Senior Manager at ENVIRON International Corporation.

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