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Being Small in a Supersized World: Tackling the Problem of Low-Level Exposures in Toxic Tort Actions

July 2014

Citation: ELR 10630

Author: Jean Macchiaroli Eggen

Low-level toxic tort claims are challenging traditional tort notions of injury and causation. Low-level exposures form the basis of claims in both environmental contamination cases and toxic product liability actions and may involve exposures below thresholds set in government health and safety standards. Establishing injury-in-fact and causation is especially problematic in low-level toxic tort claims due to latent harms, multiple defendants, and scientific uncertainty. In addition, the courts increasingly are asked to address whether relevant government standards should be accepted as legal thresholds that would bar plaintiffs’ claims when the defendant is in compliance with the standard. Traditionally, tort law has treated compliance with government standards as evidence of proper conduct, but not as a defense to suit. Courts today struggle with these issues and have applied various rules in individual cases. Although tort law and government regulation seem to be at odds, courts should seek a middle ground that values both. This Article explores the doctrinal underpinnings of the problem of low-level toxic tort claims, the various approaches undertaken by the courts, and the goals that should form the basis of a solution.

Jean Macchiaroli Eggen is Distinguished Professor of Law, Widener University School of Law-Delaware.

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