Emerging Conceptions of Latent Personal Injuries in Toxic Tort Litigation

Abstract

Until recently, it was thought that any suit to recover a remedy for a systemic and latent wrong would necessarily fail. Traditional tort doctrine, which had arisen to deal with manifest injuries, most particularly the causation doctrines, seemed unable to comprehend or remedy a latent wrong. This situation is rapidly changing;' and we stand at the beginning of yet another major transformation in tort doctrine.

This transformation reflects the tort system's attempt to address the changing patterns of relations among individuals in the chemical age. This latest chapter in the history of civil justice repeats the tradition of law endeavoring to preserve social order by responding to changed circumstances.

Examples abound from the relatively recent phenomenon of mass-produced and mass-marketed products, to the industrial revolution, and further back to the early American repudiation of the European order. What each such historic event, as well as events of smaller moment, share, is the occurrence of a material change or a normative change in society, or both, that create new possibilities for social conflict. Tort law has and continues to respond to the challenge of preserving order in a changing world.

Understanding these contemporary doctrinal changes requires focusing on changing fact patterns and emerging conceptions of injury. Such facts and conceptions are rarely addressed directly in legal argument. Their importance and the significance of the considerations that shape them, however, cannot be gainsaid when addressing the problem of latent injury litigation in tort doctrine.