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Setting the Bar for “Injury” in Environmental Exposure Cases: How Low Can It Go?

September 2012

Citation: 42 ELR 10785

Issue: 9

Author: John C. Cruden, Carla Burke, John Guttmann, and Robert V. Percival.

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards. The panel also analyzed recent court opinions on the bounds of “injury” in environmental contamination cases and the potential for plaintiffs to recover damages based upon relatively low concentrations of chemicals. Issues explored by the panel included so-called single molecule theories of toxicological harm, the admissibility of expert testimony in support of such theories, and related federal or constitutional law theories, such as preemption, separation of powers and equal protection.

John C. Cruden, President, Environmental Law Institute (moderator). Carla Burke, Shareholder, Baron & Budd, P.C. John Guttmann, Shareholder, Beveridge & Diamond, P.C. Robert V. Percival, Professor of Law & Director, Environmental Law Program, University of Maryland Carey School of Law.

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