Monday, January 26, 2009

The Causation Problem in Chemical Exposure Cases

Whereas some toxic substances have signature diseases (asbestos and tobacco come to mind) in other cases causation is difficult for impossible to prove, creating serious legal problems for workers and others exposed to the substances seeking compensation through the tort system.  A New York Times article by Felicity Barringer ("Exposed to Solvent, Worker Faces Hurdles") from this past Saturday (January 24, 2009) details the story of a worker trying to obtain compensation for workplace exposure that he believes caused his Parkinsons.  While a 2008 study showed increased risk of disease from exposure to the chemical at issue, that does not necessary translate into legal causation for purposes of worker's compensation and/or tort suits. 

The article demonstrates how difficult it is to bring tort claims arising out of exposure to various toxic chemicals.  As one lawyer stated:

“Most workers who have an occupational disease don’t think they have an occupational disease,” Mr. Metzger said, adding that “the few who might think it are mostly not successful” in getting compensation “because there isn’t a robust body of literature to support the claim.”

This problem demonstrates the interrelationship between our tort system, worker's compensation system, environmental, insurance and healthcare systems.  Because we have a weak insurance and healthcare regime and weak regulations, many turn to the tort and worker's compensation systems to support workers who are harmed.  But these systems are not well structured or suited to address the problems they are being asked to solve.  The currect state of causation doctrine is one reason why. 


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