Trans-Science in Torts
Wendy E Wagner · The Yale Law Journal · 1986
Forty years after science established that asbestos was hazardous to humans,' the first plaintiff recovered damages against an asbestos manufacturer.This delay resulted from the inability of science to meet the legal, "more probable than not" causation standards that require that the effect of the hazard be quantified on humans.To determine whether exposure to a substance is a statistically significant factor in the cause of a disease, epidemiologists must compare a significant number of subjects exposed to the substance to unexposed populations.2 Since the first successful epidemiological study was completed,' over 20,000 claims have been filed nationwide against manufacturers and installers of asbestos."This pattern of delay is common to the toxic tort field.5 In a variety of other cases involving such injuries as adenocarcinoma, pelvic inflam-1.Cases of asbestosis in asbestos textile workers had been reported as early as 1924, see Cooke, Fibrosis of the Lungs Due to the Inhalation of Asbestos Dust, 2 BRIT.MED.J. 147 (1924).Thereafter, numerous other studies indicated the significant peril of exposure to asbestos in asbestos textile factories.For a general discussion of these studies, see Borel v. Fibreboard Paper Prods.Corp., 493 F.2d 1076, 1083-84 (5th Cir.1973) (outlining scientific history of study of effects of asbestos on health).2. Thus, quantification of the effects of a substance on human health is inherently retrospective.Epidemiological studies conducted prospectively exist only insofar as test individuals are free of the disease at the inception of the study (e.g., cohort studies)-a percentage of individuals must still be exposed to the hazard in question before the effects of the substance are known.See J. KELSEY, W. THOMPSON & A. EVANS, MErHODS IN OBSERVATIONAL EPIDEMIOLOGY 8-9 (1986) (discussion of different research techniques in epidemiology, all of which are ultimately retrospective).3. Selikoff and his colleagues adduced a definitive quantitative assessment of the risk of contracting asbestosis following exposure to asbestos in their seminal 1965 study.Selikoff, Churg & Hammond, The Occurrence of Asbestosis Among Industrial Insulation Workers, 132 ANNALS N. Y. ACAD.SCI.139 (1965).The authors examined 1,522 members of an insulation workers union in the New York/New Jersey area and discovered that almost half of those examined exhibited signs of pulmonary asbestosis.In the subgroup of workers employed over 40 years, abnormalities were detected in over 90%.4. By mid-1982, 11,000 health-related cases brought by 15,500 plaintiffs were pending against Johns-Manville Corporation alone.Thereafter, suits were filed at a rate of about 425 cases per month.W. Lundquist, Innovations in Mass Tort Litigation, Paper presented at the Meeting of the American Association of Law & Science, Section on Torts (Jan.23, 1984) (on file with author). 5.Toxic torts cases are generally defined as product liability suits which arise from exposure to substances that pose a substantial risk of death or impairment either immediately or over a period of time.These cases differ from more traditional strict liability cases: often more persons are exposed to a product than actually buy it, which causes case management problems for determining and organizing plaintiffs and defendants; a longer lag time usually occurs between injury and exposure; and there is greater need for expertise and scientific studies to prove a defect in toxic substances.McGovern, Management of Multiparty Toxic Tort Litigation: Case Law and Trends Affecting Case Management, 19 FORUM 1 (1983).6. See, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924 (1980) (plaintiff daughters of mothers who took diethylstilbesterol (DES) brought suit against manufacturers of synthetic