702

Harvard Journal on Legislation

[Vol. 14:683 agement; both groups fell ill.53 It was not until a worker consulted a private physician that the Kepone poisoning was recognized.54 Another problem is that workers are sometimes afraid to report the occurrence of a toxic substance health hazard because of a fear of losing their jobs.55 Without speedy reporting of suspected toxic substance hazards otherwise avoidable injuries may continue to occur, and medical knowledge of toxic poisonings will lag further behind the use of toxicants.

Finally, absent the catalysts of political commitment or economic necessity, the legal system complacently defines its regulatory goals in terms of mathematically precise present and past events. In other words, the legal system is comfortable regulating “imminent hazards" and "unreasonable risks"56 because

53 Kepone Hearings, supra note 12, at 143. Not only was a foreman stricken by Kepone poisoning, but he and other workers warned one new employee to anticipate the symptoms. The new employee testified as follows:

"Well they said wait until you get the shakes because everybody else had the tremors the same and they said you are going to get them and I thought it was a joke."

Kepone Hearings, supra note 12, at 138 (testimony of Thurman Dykes).

54 Though employees began to fall ill within three weeks of commencing production of Kepone, the first diagnosis of Kepone poisoning was not made for sixteen months. During that interim, employees visited physicians with whom Life Science Products had made arrangements for employee medical services. Invariably, the employees were told that they were "nervous" or under too much stress at work. Frequently, after employees took a few days off from work, the tremors, ataxia or other symptoms would appear to spontaneously remit. Feeling better, the employees returned to work without further examination.

The first patient actually diagnosed as suffering from Kepone poisoning consulted a Taiwanese internist, Dr. Yi-Nan Chou, who had been in practice for about one year in Hopewell. Dr. Chou found the patient's tremors and ataxia inexplicable. He then sent blood and urine specimens to the Center for Disease Control in Atlanta. The diagnosis that was soon forthcoming indicated Kepone poisoning as the cause. Kepone Hearings, supra note 12, at 46-47, 135-47; see N.Y. Times, Jan. 28, 1976, at 14, col. 1.

55 At the Velsicol Chemical Corp., where workers were exposed to Phosvel, see note 16 supra, one of the supervisors related the following incident:

“I went over there and he was laying on the floor, and he was covered with sweat. He was wringing wet and his clothes were wet. And he smelled like He had this fishy odor, like trimethylamine or Phosvel. And he was white on both sides of his mouth, kind of foaming, and I shook him. And he acted like he was drunk and goofy. And I talked to him. I said, “De la Torre, you're sick and you need to go to a doctor." He said: "No gotta insurance; no gotta no money." I said:

"Well, you need to do something." And he said: “Don't mess up my job! Don't mess up my job!"

CBS Television Network, 60 Minutes, vol. IX, no. 26, at 13 (Mar. 27, 1977) (transcript of broadcast ". . . And Now Phosvel").

56 The policy of the United States articulated in TSCA is to establish adequate authority "to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical

1977]

Toxic Substance Compensation

703

both can be defined by the present state of knowledge. But the pervasive nature of the health problem caused by the use of toxic substances compels the search for remedies which are "still unknown but within the capabilities of modern science and technology to find or design".57 One major purpose of the Model Act is to present a victim compensation system that will encourage manufacturers to maximize knowledge of toxic substance pollution and its related health effects so that steps may be taken to prevent or at least mitigate future disasters.

II. INADEQUACIES OF THE PRESENT LEGAL SYSTEM
DEMONSTRATte the Need for a New

MODEL OF ADMINISTRATIVE COMPENSATION

Too often victims of toxic substance poisoning are also victims of the legal process. Victims seeking compensation through general tort remedies frequently face long and costly litigation, uncertain of the outcome. Alternatively, victims who are entitled to recovery under existing forms of non-judicial compensation often find their actual recoveries to be pitifully small. As disenchantment with the present system mounts, Congress should consider a comprehensive federal program to provide compensation for injuries suffered by victims of toxic substance pollution.

A. Tort Remedy

1. In General

Personal injury attorneys are well aware of the arsenal of legal technics at the disposal of the defendant. With the chronic backlog of cases facing the courts, time itself can be manipulated into a weapon for the defense. This technique may be exceptionally potent when used against impoverished victims.

substances and mixtures which are imminent hazards." (emphasis added) TSCA § 2(b)(2), 15 U.S.C. § 2601(b)(2). See TSCA § 5(f), 15 U.S.C. § 2604(f) (protecting against unreasonable risks); TSCA § 6(a), 15 U.S.C. § 2605 (a) (permitting the regulation of a chemical substance that "presents or will present an unreasonable risk of injury to health or the environment"); TSCA § 7, 15 U.S.C. § 2606 (authorizing and in some cases requiring civil action against “imminent hazards"). See note 123 infra.

57 Katz, The Function of Tort Liability in Technology Assessment, 38 U. CIN. L. Rev. 587, 612 (1969). See generally note 48 supra.

704

Harvard Journal on Legislation

[Vol. 14:683

Discovery harassments, continuances, and other procedural gambits can make the pursuit of a general tort remedy slow and disspiriting for the plaintiff.58

Federal class actions, perhaps the best means of mitigating litigation costs for plaintiffs, have rarely been available to pollution victims.59 The prima facie circumstance of the victims may not meet the requirements of similar situation or representativeness necessary to constitute a class.60 Moreover, satisfying the notice requirement is a significant obstacle to sustaining a class action.61 It is the very nature of toxic substance pollution

58 J. O'CONNell, Ending InSULT TO INJURY: No-Fault Insurance for Products AND SERVICES (1975); see Cardinal v. University of Rochester, 187 Misc. 519, 63 N.Y.S.2d 868 (1946), modified on other grounds, 271 App. Div. 1048, 69 N.Y.S.2d 355 (1947) (plaintiff alleging injury from fissionable material was required to submit to physical examination, including x-rays, blood test, and gastric analysis of stomach content as well as bone marrow tests); see also Sibbach v. Wilson & Co., 312 U.S. 1, modified, 312 U.S. 655 (1940) (Indiana state law requiring physical examination by a doctor in a personal injury suit).

59 The Supreme Court held, in Zahn v. International Paper Co., 414 U.S. 291 (1973), that the $10,000 amount in controversy requirement must be met by each member of the class party to a class action suit based on diversity jurisdiction. Legislative proposals to exempt plaintiffs in environmental class actions from this amount in controversy requirement have been introduced. See Hearings on H.R. 5074 Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 91st Cong., 2d Sess., 4-6 (1971); H.R. 19321, 91st Cong., 2d Sess. (1970). There have been more general efforts to permit consumer protection through class actions. See Consumer Class Action Act, Proposed Federal Consumer Class Action Legislation — II, 4 Class Act. Rep. 342 (1975); See also Hearings on S.1032 Before the Subcomm. on Environment of the Senate Comm. on Commerce, 91st Cong., 2d Sess., 43-79 (1971). For a history of this development, see Hinds, To Right Mass Wrongs: A Federal Consumer Class Action Act, 13 HARV. J. LEGIS. 776, 778, n.9 (1976).

The policy rationale underlying Zahn is that large classes with small individual claims may tend to be unmanageable or to present frivolous claims. See generally Developments in the Law -Class Action, 89 HARV. L. Rev. 1318, 1498-1500 (1976); Note, The Environmental Class Action After Snyder and Zahn: Obtaining Federal Diversity Jurisdiction Over the Class Through Application of Ancillary Jurisdiction, 6 ST. MARY'S L.J. 866 (1974-75); Kirkpatrick, Consumer Class Litigation, 50 ORE. L. Rev. 21 (1970). But this view completely overlooks the potential role of these small claimants in strengthening a policing function. See 89 HARV. L. REV. 1318, 1359-71 (1976).

60 Fed. R. Civ. P. 23(a). See Hinds, note 201 supra, at 786-792. See generally 7A C. WRIGHT & A. MILLER, FEDERAL PRACTICE & Procedure: CIVIL §§ 1772-1774 (1972). 61 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (holding that "the best notice practicable" must be afforded absent members). Cf. Mullane v. Central Hanover & Trust Co., 339 U.S. 306 (1950) (holding that due process required more effective notice than mere publication). Eisen appears to hold that adequate representation is the crucial element while Mullane indicates that bound parties have an entitlement to actual notice. The tests of "the best notice practicable" and of notice consistent with due process have not had wide application in class action personal injury suits precisely because satisfying all of the requirements of a federal class action in toxic substance pollution cases is so difficult. Were class actions pursued, however, the court, logically, would have to resolve the ambiguity left by Eisen and Mullane. Given that toxic substance victims may

1977]

Toxic Substance Compensation

705

related diseases that, among numerous individuals, varying symptoms may appear at irregular intervals, reflecting disparate levels of exposure, the innate ability of each person to resist the toxicant, and symptom-modifying factors such as age, diet, and stress.62 One group of victim-plaintiffs may be successful in litigation and recover adequate compensatory damages, but other victims afflicted by exposure to the same toxicant may surface over time.63 For this "second wave" of victims, perhaps suffering different ailments from the original group, a new costly trial may be required.64

In addition to the procedural difficulties, toxic substance pollution victims must surmount substantive and evidentiary hurdles before recovery in tort will be possible. It is a fundamental precept of tort law that for an act or omission to be

exhibit different symptoms at different times, see text accompanying note 62 infra, the court would face a most difficult task in giving substance to either notice test — adequate representation or actual notice. Faced with this problem, it is likely that courts would so limit the membership of a class (according to nexus of time and injury, for example), that multiple litigation from the same toxicant disaster would nevertheless ensue. See generally Developments in the Law -Class Action, 89 HARV. L. REV. 1318, 1402-16 (1976); Hinds, supra note 59 at 790-92; Note, Managing the Large Class Action: Eisen v. Carlisle & Jacqueline, 87 HARV. L. Rev. 426 (1973).

62 See PBB Health Report, supra note 36; State of Michigan Department of Health, The Short Term Effects of PBB on Health (May 1, 1975) (on file at the Harvard Journal on Legislation). The effects of some of these qualifying factors have been evidenced in the Japanese cases of cadmium poisoning (Itai-Itai Disease), where malnutrition, vitamin D deficiencies, and the victim's pregnancy significantly altered the severity of the disease. Gresser, The 1973 Japanese Law for the Compensation of PollutionRelated Health Damage: An Introductory Assessment, 8 LAW IN JAPAN 91, 193 (1975) [hereinafter cited as Gresser, Assessment]; J. A. Cohen, J. Gresser, A. Morishima & K. Fujikura, JAPANESE ENVIRONMENTAL LAW AND POLICY IN COMPArative and InteRNAtional Perspective, Part II, Session 5, at 67 (1976) (unpublished classroom materials, cited with permission) [hereinafter cited as Cohen, et al., PERSPECTIVE]. A variety of factors produced variable effects in victims of mercury poisoning in the Kumamoto Minimata Case, id., Session 6, at 1-9. Evidence of wide fluctuations in symptoms was produced in the Yokkaichi air pollution trial where wind, season, weather, age, and sex were important variables linking multiple sources of air pollution to the injury of the victims. Gresser, Assessment, supra, at 104-106. For a brief discussion of the nature of a variety of toxic substance-related industrial diseases in the U.S., see generally, J. Page & M. O'BRIEN, Bitter Wages 11-46 (1973).

The term "stress," in the context of factors affecting susceptibility to toxic substance related diseases, does not refer to psychological stress. Rather it connotes physical stress related to such things as weight loss, pregnancy, or major surgery.

63 The Model Act permits the administrative designation of diseases. Once a disease is designated, all victims who subsequently appear are entitled to an expedited administrative compensation procedure. See Model Act §§ 15 & 16; note 171 infra and accompanying text.

64 For a discussion of res judicata, see 9 C. WRIGHT & A. MILLer, Federal Practice & PROCEDURE: CIVIL § 2373.

706

Harvard Journal on Legislation [Vol. 14:683

negligent, its consequences must be reasonably foreseeable, and the resultant harm must be proximately caused by the act or omission.65

In cases like the Kepone poisoning, it would not be difficult to show that injury could have been foreseen. Kepone is toxic to humans and the conditions of its manufacture were known or should have been known to the manufacturer.66 In some toxic substance pollution cases, however, the foreseeability requirement may be a barrier to recovery. This is most strikingly demonstrated when a manufacturer takes all reasonable precautions and adopts all available techniques and technologies to insure safety, but injuries result nonetheless.67

2. Causation: The Paramount Legal Issue
a. The American Experience

Producing the evidentiary showing required to sustain the substantive proof of legal causation is an undertaking of no small magnitude. Logically, to prove causation, the plaintiff must be able to (1) isolate the harm-causing substance, (2) trace its pathway of dispersal from the polluter to the victim, and (3) show the etiology of the harm-causing substance.68 Without extensive scientific data these elements of causation cannot be firmly established. But introducing But introducing scientific studiesespecially a full scale epidemiological study does not guarantee success in proving causation.

Assuredly, the defense will produce experts who can challenge the techniques of the study and the conclusions drawn from the data compiled. In this endeavor to address issues

65 See RESTATement (Second) of Torts §§ 282-286 (1965).

66 For the conditions at the Kepone plant, see text accompanying notes 21-32 supra. For the standard formulation of the duty of care, see RESTATEMent (Second) of Torts §§ 289-294 (1965).

67 This may not be a hypothetical concern. The Center for Disease Control has reported that workers in the Ortho Pharmaceutical Corp. plant in Puerto Rico may be suffering from exposure to estrogen during the production of birth control pills. The epidemiologist who led the research team noted that "the company was exemplary in its efforts to control [hormone] dust in its plant." N.Y. Times, April 10, 1977, at E9, col. 2. Holding a defendant's duty of care to the standard of employing readily available technology is, of course, firmly established. The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932).

68 The Japanese District Court judge in the Yokkaichi air pollution case applied this method of analysis in great detail. 672 Hanrei Jihō 32 (July 24, 1972), as translated by Cohen, et al., PERSPECTIVE, supra note 62, Session 8, at 5-29.