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Abstract:
Of all the injuries from the terrorist attacks of September 11, 2001, legal analysts have accorded the least attention to the health effects of exposure to toxic substances by workers, residents, and other community members in the vicinity of Ground Zero. Although the health issue was raised with the Environmental Protection Agency (EPA) in the immediate post-September 11 period, EPA showed surprisingly little concern for the potential health threats. In the years that followed, health studies have confirmed, however, that the fears of widespread contamination of the environment in and around Ground Zero were in fact warranted. In the aftermath of the attacks, Congress enacted legislation that included a Victim Compensation Fund. The Fund was unavailable for the vast majority of persons exposed to the toxic substances in the WTC dust, however. Instead, these persons face an uncertain future in the tort system, much like other toxic tort claimants. There is now mounting evidence that the toxic collateral effects of the World Trade Center attacks have the potential for creating a legal - as well as human - cataclysm well into the future. This article is the first truly comprehensive examination of the difficult medical and legal issues that confront the Ground Zero toxic exposure claimants. I conclude that while the tort system is the best mechanism for resolution of the Ground Zero toxic exposure claims, it is far from perfect, and that lawmakers must give serious consideration to developing a discrete and workable management plan for toxic claims in the future.

toxic torts, world trade center, tort law, environmental law, health law

Abstract:
Toxic torts is a relatively new area of the law, but its seeds were sown a century ago with developments in modern culture. The design, manufacture, and marketing of the cigarette constituted one such development, one with far-reaching legal consequences which continue to challenge the legal system today. This article is built around Allan M. Brandt's 2007 public health history of cigarettes, THE CIGARETTE CENTURY. It uses Brandt's book as a stepping stone to a broader discussion of current critical issues in toxic tort law. The article begins with a review of the book, then moves into a discussion of the ways in which the watershed events in law and science that surrounded the cigarette in the twentieth century have shaped the major legal issues in toxic tort law today. In conducting this analysis, I focus on the three major areas of scientific causation, preemption, and mass toxic tort litigation. I demonstrate that the public health history of cigarettes offers many lessons for judges, attorneys, and legal scholars in addressing the most troubling issues that arise in toxic tort litigation.

toxic torts, tort law, health law, public health, cigarettes, smoking, brandt

Abstract:
The history of the U.S. Supreme Court's product preemption doctrine has been characterized by inconsistency and confusion. Product regulation and common-law product liability actions are primarily concerned with assuring the health and safety of the consuming public, and it is not surprising that the Court's product preemption decisions have focused substantially on medical devices and drugs. Recent government studies have shown, however, that the FDA is hampered in reaching its safety goals by insufficient resources and increasing demands. This article reassesses the Court's product preemption doctrine in the light of a triad of new decisions issued in 2008 and 2009. This article argues, first, that the new decisions demonstrate that the Court has embraced a unitary standard for product preemption, which merges previously discrete elements into a single, discretionary analytical process. The unitary standard lacks the desirable structure of a doctrine of this magnitude and leaves itself open to being applied in an arbitrary and unpredictable manner. This article then argues that although the Court continues to express respect for the traditional role of state tort actions in advancing consumer protection, a disconnect exists between those policy goals and the analytical process the Court uses, which places those goals in jeopardy. The unitary standard, paradoxically, invites arbitrary and unpredictable results and poses a threat to the public in the area of product safety.

preemption, product liability, torts, tort law, constitutional law, supreme court, product safety, consumer protection

Abstract:
Although tens of thousands of Americans die from gun violence every year, the regulation of firearms remains inadequate. Those who are injured, or the survivors of those killed by guns, therefore have sought relief through tort law against those who manufacture these uniquely deadly products. With rare exceptions, however, these suits have been unsuccessful. Most courts have found that the conduct of gun manufacturers is not actionable under strict product liability doctrine, negligence, or the law of abnormally dangerous activities. This Article argues that courts have been too reluctant to apply tort liability to gun manufacturers. It is possible and necessary, the authors demonstrate, to fashion a rule of liability that will call irresponsible gun manufacturers to account, and that doing so will not amount to absolute liability against the gun industry. Drawing theoretical support for their position from central pillars of tort law, the authors offer a test for judging whether a class of guns should be considered defectively designed. Such a determination should hinge on whether the impugned gun is a "manifestly unreasonable" design. This concept is recognized in the Third Restatement of Torts, but too narrowly defined there. The authors flesh out the concept by reworking the factors for abnormally dangerous activities to make them more directly applicable to the complex array of design and marketing decisions that gun manufacturers make. Through a series of illustrations, they then apply this test to different types of guns and show how the test supports liability for certain egregious practices, but not for some other practices. In addition, the authors recommend that claims for negligent marketing be allowed to supplement the design claims in appropriate cases.

tort law, torts, guns, firearms, product liability, negligence

Abstract:
When the United States Supreme Court decided Geier v. American Honda Motor Company in 2000, much speculation ensued as to whether the Court was establishing a new set of preemption rules for product liability cases, in which implied preemption could be used to bar most of plaintiffs' claims, even where the relevant federal statute's express preemption provision did not do so. Most commentators declared the doctrine of preemption in a hopeless state of disarray following Geier. This article argues that the 2005 Supreme Court decision in Bates v. Dow Agrosciences LLC demonstrated a consistency with the earlier Court decisions in Cipollone and Medtronic, thus marginalizing Geier and making it unreliable as precedent in product preemption cases. Bates incorporates certain general norms and values of consumer protectionism into the preemption doctrine as applied to product cases, particularly in cases involving an express preemption provision in the federal statute. Ultimately, Bates demonstrates the Court's belief in the value of state tort law for remedying injuries associated with unsafe products. Going forward, the Cipollone-Medtronic-Bates line of cases is a better measure of preemption in product cases than anything that could be gleaned from Geier.

product liability, preemption doctrine, tort law

Abstract:
This article discusses how various scientific studies suggest a causal connection between workers' reproductive and genetic injuries and their exposure to toxic substances in the workplace. Because of conflicts between scientific and legal causation standards, workers and affected family members often cannot prove a sufficient causal connection between toxic exposure and ensuing injury to recover under existing workers' compensation laws and the common law of torts. This article reviews the problems inherent in both the workers' compensation and torts systems in handling occupational diseases claims. It proposes some specific reforms to improve the availability of these relief mechanisms for toxic exposure victims.

toxic torts, workers compensation, reproductive injuries, genetic injuries, torts, tort law, toxic exposure

Abstract:
A common feature of mass tort litigation involves the situation in which some defendants settle with the plaintiff prior to trial, with the plaintiff proceeding to trial and winning a favorable judgment against the nonsettling defendants. In such situations, most states apply a credit, or set-off, of a certain amount against the plaintiff's recovery to account for the prior settlement. Different set-off rules can yield dramatically different results, in terms of both the plaintiff's recovery and the defendants' liabilities, including the right to seek contribution. The approaches that the states take to these matters are fragmented and inconsistent. This article examines the various state approaches to contribution and settlement in this context. This article further explores some of the issues that have caused conflicting state rules, with particular attention to state variations on the rules of joint and several liability. Included is a state-by-state table of state contribution laws and joint and several liability rules. This article offers suggestions for evaluating the existing state rules with the goals of enhancing awareness of the issue and developing a unified approach to these doctrines in the mass tort context.

torts, tort law, mass torts, litigation, settlement, set-off, contribution, joint and several liability

Abstract:
During the past few years, more than a score of municipalities (and the State of New York) have brought suit against gun manufacturers, distributors and retailers, seeking to hold them accountable for the consequences of gun violence within the municipalities' jurisdiction. This article critically assesses whether the theory of public nuisance is an appropriate vehicle for bringing such suits. Inasmuch as public nuisance theory is itself only dimly understood, the article begins with an historical summary of public nuisance law. It then considers contemporary objections to the continued vitality of public nuisance, and concludes that, properly defined and limited, public nuisance can be appropriately employed to hold gun sellers responsible for truly outrageous conduct, typically in cases involving the subversion or avoidance of legislative will. As to remedy, however, the article takes the position that, consistent with a proper understanding of public nuisance's appropriate role in the safeguarding of public health, only such relief as is likely to work toward abatement of the nuisance should be granted. As a practical matter, this means that courts should be sympathetic to requests for practical steps such as requiring persistently defiant dealerships to close down and forcing manufacturers to seriously monitor distributors and dealers. On the other hand, courts should not, at least under a theory of public nuisance, award damages that will repay municipalities for the costs incurred in dealing with gun violence, such as increased police and hospital costs.