Hazardous Waste and the Common Law: Will New Jersey Clear the Way for Victims to Recover?

Phillip D. Reed

Editors' Summary: Toxic tort cases pose formidable problems of law and proof for plaintiffs. These problems are compounded in environmental suits, where defendants may be difficult to identify and causation may be especially clouded.The author outlines the obstacles to recovery in toxic tort cases arising from hazardous waste disposal, reviews developments in tort law that have reduced certain of the barriers, and then examines two pending New Jersey cases that may break further ground for plaintiffs. He concludes that the resolution of these cases will signal whether suits are likely to be practical options for victims of pollution from hazardous waste disposal sites.

Suzanne Baskin and Barnett Lawrence, ELR Legal Interns, assisted with the research for this comment.

[15 ELR 10321]

For those tracking the often stormy subject of liability for the generation and disposal of hazardous substances, two cases pending in the courts of New Jersey may be good barometers. Both cases were brought by people living near toxic waste dumps; both seek damages for physical and emotional harm allegedly suffered as a result of exposure to chemicals escaping from the dumps. The cases may be on the leading edge of a trend. Workplace and consumer exposures to hazardous substances like asbestos and DES have generated a tidal wave of "toxic tort" litigation that shows signs of reshaping tort law generally. During this period the law governing liability for harm from toxics in the environment has changed dramatically too, but tort law has played a minor role compared to that of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹ which established expansive liability for cleanup costs and natural resource damages, but not personal injury. The toxic torts surge shows signs of carrying over into this field, however. Changes wrought in consumer and occupational cases have reduced some barriers to recovery in environmental cases. Hazardous waste cleanup cases have built evidentiary foundations for potential tort suits and contributed to the expansion of liability principles. The repeated failure of attempts to pass federal toxic pollution victim compensation legislation² has left those believing themselves personally injured no alternative to tort suits. Some such plaintiffs have been successful and the number of environmental toxic tort cases appears to be on the rise. The two cases now pending in New Jersey, Ayres v. Township of Jackson³ and Kenney v. Scientific, Inc.⁴ will provide an indication of just how much influence tort law will have on the legal climate affecting those involved with toxic pollution.

Obstacles to Tort Recovery for Pollution Injuries

A successful tort action has at least five ingredients. First, the plaintiff must find a court that has jurisdiction over the parties and the claim. Second, the plaintiff must show either than he was owed a duty of reasonable care and the breach of that duty by another, or the existence of a legal doctrine imposing liability without fault (strict liability). Third, the plaintiff must have suffered an actual loss or injury. Fourth, the plaintiff must prove that, more likely than not, there was a causal nexus between defendant's action and plaintiff's injury. Fifth, plaintiff must find a defendant with the resources to pay plaintiff's damages, which unlike the first four is not a legal requirement, but is of critical importance in practice nonetheless.

Toxic tort plaintiffs may find the road to recovery barred at the beginning by unfavorable statutes of limitations. Statutes that begin to run from the time a person is exposed to a substance that causes injury bar many toxic tort cases: those concerning injuries that emerge at the end of a long latency period following exposure.⁵ World War II [15 ELR 10322] shipyard workers exposed to asbestos did not develop cancer or other ailments immediately; in many cases the problems emerged years after the exposures ended. The long latency phenomenon is present with many health effects from toxic chemicals, particularly cancer.

The second element of a tort case, proving negligence or a basis for imposing strict liability, also can be a problem for toxic tort plaintiffs. One reason is the problems of proof stemming from the complexity of the cases or the long lapse of time between defendants' acts and plaintiffs' injuries. Where hundreds of companies' wastes were hauled to a dump by dozens of transporters and this activity took place years ago, it may be extremely difficult and costly to prove who exercised due care and who did not. The toxic chemical disposal business has not been characterized by the making of records, much less the keeping of those records that were made. Indeed, in tort cases concerning hazardous substance disposal, proof problems shadow plaintiffs at every turn. Proof problems put a premium on establishing a basis for strict liability under a nuisance, products liability, or ultrahazardous activity rationale. Although the production of dangerous products⁶ or the disposal of dangerous chemicals⁷ has rather widely been subjected to strict liability, the generation of dangerous chemical wastes has not. The problems of invoking these theories are multiplied if defendants (for instance, waste generators) had no control over the disposal of the wastes. Establishing liability is made even more difficult in many cases because the potential defendants are numerous. If plaintiffs bear the burden of establishing a basis for apportioning liability, the burden may crush them.

The third element of a tort action, actual loss or injury, is particularly troublesome in environmental cases, because other factors maycompel plaintiffs to act before any physical injuries are manifest. People who learn that their drinking water is laced with known carcinogens may want to go to court immediately to avoid being time barred by an exposure statute of limitations, to act while defendants are within reach and records and memories are intact. But what injuries can such plaintiffs claim? Exposure to a carcinogen does not guarantee the later onset of cancer. At most it increases the risk.

The fourth piece of the tort puzzle is often the hardest to find in environment toxics cases. Causation problems abound for the environmental tort plaintiff. Many of the injuries that might be caused by environmental exposures to toxic substances are nonspecific; they could also have been caused by other things, such as cigarette smoking or diet. Assume that laboratory experiments have shown that massive doses of a chemical, for example trichlorophenol, cause cancer in laboratory mice. Did drinking water with low concentrations of trichlorophenol cause John Doe's liver cancer? Extrapolating from mice to humans and from massive doses to minute ones greatly weakens the probative value of the toxicological evidence. The only alternative evidence of causation may be epidemiological: a statistical inference based on relative rates of disease among humans exposed to the chemical in question and the general population. What if a study of people working with trichlorophenol showed that they had 20 percent higher incidence of liver cancer than the general population? Does that show that, more probably than not, John Doe got cancer from his contaminated drinking water? What if an epidemiological study of John Doe and his neighbors showed that they had 2.1 times the rate of liver cancer found in the general population? Does the evidence prove that any individual's cancer was caused by trichlorophenol? It is difficult, if not impossible, to prove that a dump more probably than not was a cause of a disease on the basis of such evidence.⁸ And the causation problems are exacerbated by the lapse of time between the beginning of exposure and manifestation of disease and other proof problems.

Finally, a practical necessity in any tort action is a defendant with money.The problem can be a major complicating factor in environmental toxics cases as a result of the structure of the disposal industry. Many chemical dumps were run by small businesses that have since been dissolved or are insolvent. Potential defendants with "deep pockets," the companies whose wastes were taken to the dumps, often cannot be identified due to the lapse of time or lack of records, or are insulated from liability by care in selecting a waste disposer or transporter, or by those parties' roles as intervening causes.

In summary, the person at risk from or injured by toxics in the environment cannot easily find redress in the tort law. He or she must surmount statute of limitations, liability, damages, causation, proof, and defendant-selection problems. A lawyer might take such a case, if the potential recovery were large and deep-pocket defendants within reach, but financing the other costs of the litigation could be a major undertaking. A 1980 study concluded that, as a result of problems such as these, state tort law could not adequately compensate victims of toxic pollution.⁹ Shortly thereafter, Congress enacted CERCLA, establishing a broad system of liability for hazardous waste cleanup and natural resource damages and requiring further study of the need for statutory compensation of human victims of toxics in the environment.¹⁰ That study also concluded that [15 ELR 10323] tort law alone could not solve the problem and recommended an administrative compensation scheme to fill the gaps.¹¹ To date, however, Congress has rejected every toxic victims compensation proposal,¹² leaving tort law as the only recourse.

Environmental Tort Cases

The many obstacles to recovery have not dissuaded all who believe themselves victims of toxic pollution from going to court and have been overcome in a number of cases. Mammoth, widespread litigation over workplace exposures to asbestos and Agent Orange and consumer exposure to DES has produced new tort law theories that could make recovery easier in environmental cases. Use of the "exposure" rule to determine the applicability of statutes of limitations in chemical exposure cases is giving way to use of a "discovery" rule.¹³ In most states now the clock does not begin to run until the plaintiff discovers the injury, the connection between the injury and the exposure to toxics, or even defendant's responsibility for the exposure. Joint and several liability is increasingly the rule for toxic waste cases with multiple defendants, shifting to defendants the job of sorting out just how much of the problem is due to each's activities.¹⁴ Litigation under CERCLA is creating a record on who is responsible for what chemicals in dozens of dump sites across the country, making the job significantly easier for prospective toxic tort plaintiffs. These developments leave causation, identification of a compensable injury, and generator liability as real problems for the toxic tort plaintiff, but the task is becoming more manageable.

Major settlements or verdicts in a few cases have demonstrated that victory is possible for toxic tort plaintiffs.¹⁵ The conditions, it seems, are ripe for an increase in the volume of toxic tort cases concerning hazardous waste dumps.¹⁶ We have yet to see, however, whether the tort system is sufficiently flexible to adapt to all their special demands. The two New Jersey cases will be good indicators.

Ayres v. Township of Jackson: Liability for Risks

In Ayres v. Township of Jackson, a 1983 decision, the court held that plaintiffs had a valid claim for injuries from exposure to toxic wastes at a municipal dump even ifthey had no identifiable illnesses.¹⁷ The exposure gave rise to compensable emotional distress and a need for medical surveillance, the court ruled. It also allowed plaintiffs' claim for quality-of-life damages.¹⁸ The jury awarded $2 million for emotional distress, $5 million for quality of life, and $8 million for medical surveillance. A Pennsylvania court recently allowed a medical surveillance claim in a similar case,¹⁹ relying in part on the New Jersey decision.

The continued viability of Ayres in New Jersey is in doubt, however. An appeals court recently threw out the [15 ELR 10324] medical surveillance and emotional distress damages.²⁰ It ruled that the emotional distress suffered by plaintiffs constituted pain and suffering, the recovery of which is barred by the New Jersey Tort Claims Act. It also ruled that the medical surveillance claim was not adequately supported, since it was based on the testimony of one expert who cited no clinical injury requiring surveillance and could not quantify the increased risk suffered by plaintiffs. Under these circumstances, the appeals court concluded, it could not find that the risk was not "microscopically small." An additional factor in its ruling was the policy in the state's Tort Claims Act that novel causes of action should be viewed with a wary eye in actions against public entities. The New Jersey Supreme Court has certified plaintiffs' appeal.²¹

The New Jersey high court's decision in Ayres could be a landmark. The issue in the case is not whether damages for emotional distress or medical surveillance ever are appropriate; they have been allowed in other contexts.²² The issue is whether they are appropriate in environmental toxics cases, where the "facts" of what harm has been done or will result are obscured in impenetrable clouds of scientific uncertainty. The appeals court seemed principally concerned that the need for medical surveillance was too speculative because plaintiffs' expert testified that the increased risk could not be quantified. There was no solid basis on which to determine whether plaintiffs really were deserving of extra medical attention at defendant's expense.

The court's search for a seemingly objective benchmark to protect against recovery entirely out of proportion to the real risks imposed on plaintiffs by defendant is understandable, but seems to have led the court astray. The real question seems to be, given plaintiffs' exposures, would it be good medical practice to recommend extra testing and checkups? If this question is answered in the affirmative, then plaintiffs would seem to have damages. And it is not clear that the absence of a quantitative estimate is relevant to the inquiry. Testimony by doctors ought to suffice. In any event, it is by no means clear that the ability to make a quantitative estimate of risk in one toxic tort case and the inability to do so in another should have any significance. This may indicate nothing more than whether the substances involved have been studied in the past. The New Jersey Supreme Court soon will be wrestling with such issues. It has been willing to stretch established limits on tort liability to enable deserving plaintiffs to recover in other toxic tort situations;²³ whether it finds the plaintiffs in Ayres deserving of this treatment will tell much about the future viability of tort remedies for environmental toxic torts.

Kenney v. Scientific, Inc.: Strict Liability for Generators

In Kenney v. Scientific, Inc.,²⁴ another New Jersey trial judge recently ruled that companies that generated the toxic wastes disposed of at the Kin-Buc site and a neighboring site are strictly liable (using the terminology "absolute liability") for injuries caused by wastes leaking from disposal sites, because the wastes are "inherently dangerous." The court applied the rationale of the state's supreme court in State Department of Environmental Protection v. Ventron,²⁵ which held strictly liable a generator whose wastes escaped from its property and contaminated the property of its neighbors. In Kenney, the potential for harm inherent in the substances and the relatively greater ability of the generator to bear the costs of any resulting harm persuaded the court that the doctrine should apply to generators even if independent contractors disposed of the wastes. The court also cited an alternative rationale for not dismissing the complaint: the generators would be vicariously liable under pre-Ventron law for the negligence of the waste haulers. The Kenney court emphasized that imposition of absolute liability did not excuse plaintiffs from proving that defendants' wastes proximately caused their injuries.

Defendants and plaintiffs sought to appeal aspects of the Kenney decision, with generator defendants taking direct aim at the absolute liability ruling. They argued that Ventron imposes such liability only for disposal of mercury or similar substances in a manner similar to that in which the wastes were disposed in Ventron.²⁶ They also contended that imposing strict liability on generators would be like making the manufacturer of bullets strictly liable for injuries resulting from the negligent operation of a rifle range on which the manufacturer's bullets were fired.²⁷ The appeals were denied and the parties are preparing to join the causation issue in the trial court before renewing the battle over generator liability.²⁸

Causation may prove to be the central issue in the Kenney litigation. Plaintiffs' burden of demonstrating proximate cause is imposing.²⁹ The Kin-Buc site was a mixing [15 ELR 10325] pot for diverse chemical wastes from hundreds of companies. Plaintiffs allege exposure to various toxic chemicals and a range of resulting ailments, from emotional distress to death. They will have to tackle problems of scientific uncertainty that are magnified by the logistical complexity of the case. The case may be a major test of innovative mass tort causation theories.

Courts and commentators have been rethinking the causation issue in toxic tort cases, where firmly establishing a cause and effect relationship often is beyond the capabilities of science.³⁰ One focus is on the amount of increased risk suggested by epidemiological data necessary to demonstrate that a specific ailment was caused, more probably than not, by exposure to a specific substance or mix of substances. Another is on whether it makes sense to do away with the proximate causation requirement in such cases, at least for recovery of damages for risk, such as medical surveillance.³¹ It is not yet clear whether any of these approaches will be brought into focus by Kenney. The case could settle or even make it to a jury without a decision on the legal adequacy of plaintiffs' causation proof.³² Neither result would advance the law on causation, but either would be an important signal for litigants in environmental toxic tort cases.

Conclusion

The continuing litigation in Kenney and the appeal in Ayres bear close attention in the coming months. They are testing major questions about the viability of tort remedies for exposure to or injury from hazardous substances released in the environment. Victories for plaintiffs in either or both will add momentum to the growth of the environmental torts bar. Failure will strengthen the arguments of those who believe that tort law cannot carry this burden in our society and that legislative solutions are necessary.

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41954.

2. In late September, in the most recent episode in this long-running drama, the Senate deleted from proposed CERCLA amendments a demonstration victim assistance program, 131 CONG. REC. S11998 (daily ed. Sept. 24, 1985).

3. 13 ELR 20631 (N.J. Super. Ct. Law Div. Apr. 5, 1983), rev'd, 15 ELR 20642 (N.J. Super. Ct. App. Div. June 4, 1985), cert. granted, No. 24248 (N.J. Sept. 9, 1985).

4. 15 ELR 20403 (N.J. Super. Ct. Law Div. Apr. 3, 1985).

5. "In states that have not as yet adopted a discovery rule, the statute of limitations remains a substantial barrier to recovery for injuries resulting from exposure to hazardous wastes." SUPERFUND SECTION 301(E) STUDY GROUP, 97TH CONG., 2D SESS., INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES, PT. 1 AT 45 (Comm. Print 1982) (hereinafter cited as SECTION 301(E) REPORT).

6. See generally RESTATEMENT (SECOND) OF TORTS § 402A (1964). Products liability claims have not figured prominently in the development of hazardous waste liability. See, e.g., United States v. Outboard Marine Corp., 549 F. Supp. 54, 13 ELR 20033 (N.D. Ill. Sept. 30, 1982) (in action by U.S. concerning cleanup of polychlorinated biphenyl pollution, products liability claim under state law is barred by preemption doctrine enunciated in Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981)). But see Ashland Oil, Inc. v. Miller Oil Purchasing Co., 678 F.2d 1293, 12 ELR 20845 (5th Cir. 1982) (oil recycling company liable under products liability for sale of oil contaminated with hazardous wastes to Ashland Oil Company, resulting in explosion at refinery).

7. See, e.g., State Dep't of Envt'l Protection v. Ventron Corp., 94 N.J. 473, 13 ELR 20837 (1983) (landowner strictly liable for releases of hazardous wastes stored and disposed on its land); Branch v. Western Petroleum, Inc., 657 P.2d 267, 13 ELR 20363 (Utah, 1982) (ponding of wastewater adjacent to land on which plaintiff's water wells located is abnormally dangerous activity covered by strict liability); Wood v. Picillo, 443 A.2d 1244, 12 ELR 21000 (R.I. 1982) (leaching of toxics from hazardous waste site into groundwater underlying others' property makes site owner strictly liable in nuisance).

8. For general discussions of these problems see SECTION 301(E) REPORT; supra note 5, pt. 1 at 70; Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 HARV. L. REV. 849, 855-859 (1984); Trauberman, Statutory Reform of "Toxic Torts": Relieving Legal, Scientific, and Economic Burdens on the Chemical Victim, 7 HARV. ENVTL. L. REV. 177, 197-201 (1983).

9. CONGRESSIONAL RESEARCH SERVICE, 96TH CONG. 2D SESS., SIX CASE STUDIES OF COMPENSATION FOR TOXIC SUBSTANCES POLLUTION (Comm. Print 1980) (prepared by the Environmental Law Institute) (hereinafter cited as SIX CASE STUDIES).

10. CERCLA § 301(e), 42 U.S.C. § 9651(e), ELR STAT. 41954.

11. This review of existing causes of action and barriers to recovery has shown that although causes of action do exist for some plaintiffs under some circumstances, a private litigant faces substantial substantive and procedural barriers in an action to recover damages for personal injury or property damage due to hazardous wastes, particularly where the individual claims are relatively small. . . .

Regardless of the size of a claim and the cause of action on which a claim is based, three recurring problems stand out as major barriers to recovery: statutes of limitation, proof of causation, and apportionment of damages among multiple defendants.

SECTION 301(E) REPORT, supra note 5, pt. 1 at 130, 131.

12. See supra note 2.

13. SECTION 301(E) REPORT, supra note 5, pt. 1 at 43, states that at least 39 states use the discovery rule. The American Bar Association's Special Committee on the Tort Liability System reportedly endorsed the use of the discovery rule in toxic tort cases, NAT'L L.J., Dec. 24, 1984, at 6.

14. See, e.g., State v. Schenectady Chemicals, Inc., 13 ELR 20550 (N.Y. Sup. Ct. Feb. 18, 1983). The imposition of joint and several liability under CERCLA in federal cleanup cases is based on the common law trend toward such liability, see Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10224 (1984).

15. The jury in Ayres v. Township of Jackson, 13 ELR 20631 (N.J. Super. Ct. Law Div. Apr. 5, 1983), rev'd, 15 ELR 20642 (N.J. Super. Ct. App. Div. June 4, 1985), cert. granted No. 24248 (N.J. Sept. 9, 1985), awarded the 325 plaintiffs a total of over $15 million, but about $10 million of that award was disallowed on appeal. A tort action concerning pollution from Hooker Chemicals' Love Canal disposal site was settle for $20 million. [Current Developments] ENVT. REP. (BNA) 1445 (Jan. 4, 1985).

16. See, e.g., Adkins v. Canadian National Railways Co., No. 84-3081-CE, ELR PEND. LIT. 65841 (Mich. Cir. Ct. Calhoun County, complaint filed Oct. 22, 1984) (class action against waste transporters, handlers, and disposers under negligence, nuisance and other theories for property damage); Allen v. United States Radium Corp., No. L- 013851-84, ELR PEND. LIT. 65817 (N.J. Super. Ct. Law Div. complaint filed Feb. 29, 1984) (landowners plead negligence, strict liability, nuisance, and other causes of action for radiation damage to health, earning power, and property from materials from radium production); Sukeena v. Michael, C.P. No. 1983-C-8969, ELR PEND. LIT. 65807 (Pa. Ct. C.P. complaint filed Nov. 21, 1983) (action in negligence, strict liability, nuisance, trespass for economic and health damages from leaking underground gasoline storage tank); Andrus v. Amchem Products, Inc., No. 451-83 (Pa. Ct. C.P. complaint filed Oct. 21, 1983) (action against chemical manufacturers and drocessing plant operators in strict liability and other theories for health and economic damage from chemical exposure); Lamoreaux v. Diamond Shamrock Corp., No. L-036331-83, ELR PEND. LIT. 65793 (N.J. Super. Ct. Law Div. complaint filed June 13, 1983) (action against past and present owners of chemical manufacturing plant in strict liability, nuisance, negligence and other theories for health and other injuries from exposure to dioxin); Anderson v. Cryovac, Inc., No. 82-2444, ELR PEND. LIT. 65758 (Mass. Super. Ct. amended complaint filed May 11, 1982) (action against toxic waste generators for health and other damages from groundwater contamination under negligence and other theories).

17. Ayres v. Township of Jackson, 13 ELR 20631 (N.J. Super. Ct. Law Div. Apr. 5, 1983), rev'd, 15 ELR 20642 (N.J. Super. Ct. App. Div. June 4, 1985), cert. granted No. 24248 (N.J. Sept. 9, 1985). The court found the enhanced risk claim too speculative, but noted that under the state's discovery rule, plaintiffs would be able to institute another action if they did develop cancer traceable to the toxics exposures. 13 ELR at 20632. In refusing to dismiss plaintiffs' claims under these two theories, the court indicated that emotional distress would be compensable if it was reasonably foreseeable that the township's negligence in allowing releases of hazardous substances would cause the type of fear plaintiffs alleged, the exposure to toxics had an identifiable physical impact on plaintiffs, and the emotional injuries were sufficiently severe, 13 ELR at 20633. Medical surveillance would be warranted regardless of the precise magnitude of the risk that plaintiffs would contract cancer, the court noted, if medical experts deemed it necessary given the nature of plaintiffs' exposures to carcinogens. Id.

18. The quality-of-life claims were not challenged at the trial court level, 13 ELR at 20631-32. They concerned disruptions in plaintiffs' lives as a result of having to rely on inconvenient and sometimes unreliable supplies of water trucked in by the township.

19. Habitants Against Landfill Toxicants v. City of York, 15 ELR 20937 (Pa. Ct. C.P. York County May 20, 1985). See also Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn. 1982) (allowing costs of medical monitoring program for exposure to toxic substances resulting from pest control activities in plaintiff's home).

20. 15 ELR 20642 (N.J. Super. Ct. App. Div. June 4, 1985), cert. granted No. 24248 (N.J. Sept. 9, 1985).

21. No. 24248 (N.J. cert. granted Sept. 9, 1985). Plaintiffs' petition argues that qualification of the increased risk giving rise to the need for medical surveillance is not a prerequisite for recovery of such damages in New Jersey or a number of other states, Plaintiffs' Petition for Certification at 12-16, Ayers v. Township of Jackson, No. 24248 (N.J. cert. granted Sept. 9, 1985). It also contends that emotional distress has been recognized as a separate element of damages, even when not accompanied by physical injury, and should not be treated as pain and suffering, Id. at 17, and that the court should consider whether enhanced risk of future illness is compensable, Id. at 18.

22. Id. at 12-17.

23. See, e.g., Beshada v. Johns-Manville Products Corp., 447 A.2d 539, 13 ELR 20533 (N.J. 1982).

24. 15 ELR 20403 (N.J. Super. Ct. Law Div. Apr. 3, 1985). Kenney is one of those cases in which plaintiffs were aided by prior CERCLA litigation, United States v. Kin-Buc, Inc., No. 79-514, ELR PEND. LIT. 65601, 65670 (D.N.J. complaint filed Feb. 2, 1979). See also United States v. Kin-Buc, Inc., 532 F. Supp. 699, 12 ELR 20459 (D.N.J. 1981) (Clean Air Act preempts federal common law nuisance claims for air pollution from hazardous waste dump).

25. 94 N.J. 473, 13 ELR 20837 (1983).

26. See Defendants' Brief on Motion for Leave to Appeal from Order of the Suprerior Court, Law Division, Middlesex County, dated May 15, 1985 at 12, Kenney v. Scientific, Inc., 15 ELR 20403 (N.J. Super. Ct. Law Div. Apr. 3, 1985).

27. Response of Certain Generator Defendants to Motions for Leave to Appeal Filed on Behalf of Plaintiffs and Defendants Hoffman-Laroche, Inc., et al. at 11-12, Kenney v. Scientific, Inc., 15 ELR 20403 (N.J. Super. Ct. Law Div. Apr. 3, 1985).

28. Motions for Leave to Appeal, Nos. AM 891 84 TJ, AM 1112 84 TJ, AM 1113 84 TJ, Kenney v. Scientific, Inc., N.J. Super. Ct. App. Div. June 19, 1985).

29. See supra note 8. The case involves95 plaintiffs with different ailments and injuries ranging from mental distress to death, and over 650 defendants, who allegedly generated, transported, or disposed of many different substances. Complaint and Jury Demand, ELR PEND. LIT. 65835 (filed July 31, 1984), Kenney v. Scientific, Inc., 15 ELR 20403 (N.J. Super, Ct. Law Div. Apr. 3, 1985). Over 70,000,000 gallons of toxic and hazardous substances were dumped at the site, United States v. Kin-Buc, Inc., 11 ELR 20472 (D.N.J. Apr. 14, 1981), vacated 11 ELR 20977 (D.N.J. July 26, 1981), revised opinion issued 532 F. Supp. 699, 12 ELR 20459 (D.N.J. 1982).

30. See supra note 8.See also Allen v. United States, 588 F. Supp. 247, 404-43 (D. Utah May 10, 1985) for a detailed analysis of the causation issues in the simpler context of a case involving leukemia allegedly caused by exposure to radiation. The court concluded that:

Where a defendant who negligently creates a radiological hazard which puts an identifiable population group at increased risk, and a member of that group at risk develops a biological condition which is consistent with having been caused by the hazard to which he has been negligently subjected, such consistency having been demonstrated by substantial, appropriate, persuasive and connecting factors, a fact finder may reasonably conclude that the hazard caused the condition absent persuasive proof to the contrary offered by the defendant.

Id. at 415. (Emphasis in original.)

The court also deals at some length with the difficulties of being forced to rely on the statistical science of epidemiology, which does not typically demonstrate causal connections to the more-probable-than-not standard required by courts. Id. at 416-19. For a detailed analysis of these issues and recommendations for better use of epidemiological evidence, see Black and Lilienfeld, Epidemiologic Proof in Toxic Tort Litigation, 52 FORDHAM L. REV. 732 (1984). See also In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 782-90 (E.D.N.Y. 1984) for a discussion of the causation problems faced by plaintiffs in that case.The court noted that epidemiological evidence showing at least a twofold increase in the risk of cancer would be necessary to demonstrate causation more probably than not. Id. at 785.

31. For an entertaining discussion on the pitfalls of blind insistence on proximate causation, see Lansing, The Motherless Calf, Aborted Cow Theory of Cause, 15 ENVTL. L. 1 (1984). See also Allen v. United States, 588 F. Supp. at 415, quoted supra in note 30, for language suggesting a probabilitic proof of causation.

32. See Black and Lilienfeld, supra note 30, at 743-49. In approving the settlement in In re Agent Orange Product Liability Litigation, 597 F. Supp. at 786-87, the court noted that while plaintiffs presented enough evidence on causation to survive a motion to dismiss, they probably could not have carried their burden at trial and would have been vulnerable to judgment notwithstanding the verdict had the jury decided in their favor.