Each of us views the potential health impacts of toxic chemicals from several different, often inconsistent, perspectives.  As professionals, we provide information services to attorneys and others involved as either plaintiffs of defendants in chemically induced cases.  However, as citizens of the twentieth century, we are also the custodians of our planet, with a moral commitment to protect our future generations.  We are consumers who have grown accustomed to a standard of living partly achieved as a result of the chemical revolution which began after World War II.  And yet, we are parents, grandparents, aunts and uncles who are concerned about the potential effects of toxic substances in our water, air, food and soil.  We are participants, and even investors in, a national and global economy that is seriously affected by concerns over chemical safety.

Thus, to some extent, we are both the culprit and the victim in our toxic world.  However, as the National Academy of Sciences has concluded and even William Ruckleshaus [at the time, Ruckleshaus was Administrator of the US Environmental Protection Agency] has stated, we simply do not have the information necessary to determine the risks we each face daily.  As wave after wave of chemical victims are identified, we are learning that we pay a very high price for "better living through chemistry."  But it is not as simple as that.  There are many thousands of individuals who have developed chemically induced illnesses as a result of wanton and reckless conduct by various companies and governmental units.  Asbestos is a prime example, since its toxicity was well known by the 1940's and yet government and industry colluded in a whitewash that will have taken tens of thousands of lives by the end of this century.  The example of the tobacco industry is even more bizarre and frightening.

Increasingly, our common law tort system has been called up to adjudicate the claims of alleged chemical victims.  However, the courts are but one avenue for the chemical victims, with the bulk of the expenditures coming under our Social Security Disability system, the workers compensation systems, and private insurance carriers.  In fact, the courts may be the least effective forum for adjudicating chemically induced illness cases.  First of all, causation is often impossible to establish, since most chemicals o not cause unique diseases.  While asbestos and some others leave "marker" tumors that almost never occur in the absence of that particular substance, the vast majority of illnesses can not be traced to one, direct exposure to one specific substance.  In fact, the vast majority of chemical victims will never even be identified.  We have no way of knowing how many of those suffering from cancer, birth defects, infertility and neuro-psychiatric disorders are actually chemical victims.

So, the tab will continue to be picked up by the working American, the taxpayer, and the insurance consumer.

Some of the scientific factors contributing to the "causation" difficulties include the following:

• Disease latency periods of up to 40 years.  How many people know, or can find out about, exposures they may have had thirty years ago?
• Additive and synergistic effects.  Exposures to two different substances can increase the chance of developing some diseases by orders of magnitude.
• Lack of sufficient research on the health effects of individual and cumulative exposures.  At this point, EPA, OSHA and FDA rely largely upon industry-sponsored research to determine health risks.  The emphasis over the past 20 years has been on cancer, with relatively little time and money being spent on other chronic health problems - such as immune system damage, neurological and psychiatric disorders, birth defects, infertility, etc.

Entire areas, such as indoor pollution, have been virtually ignored - as if no body cared what substance might be affecting you and your families.  It turns out, that when researchers started to look at indoor pollution they found exposures much higher than from outdoor air.  Major examples like indoor pollution must serve as reminders to each of us that very little is known about the damage that chemicals may be causing to our health.  In fact, we are aware of only a few of the more horrendous hazards, the tip of the iceberg.  And yet our government regulators and industry would have us continue to believe that we are being protected.

• Individual susceptibility to these substances varies by orders of magnitude.  The exposure that may make one person acutely ill may not even be noticed by the person standing next to them.  Federal occupational standards are set to protect the typical, healthy worker.  While some environmental standards are set to protect some relatively susceptible groups, no standard, even if fully met, protects the most susceptible individual.
• Multiple exposures.  We are each exposed to thousands of toxic chemicals at home, at work, in stores, restaurants, and outdoors.  In many ways, we are living in a chemical "commons" where the incentive for industry is to continue to pollute, for two reasons:
        #1.    The more pollution there is the more difficult it will be to blame any particular illness on one particular substance or company.
        #2.    Human health is tremendously undervalued in the "marketplace."  In fact, the chances of a company having to pay for all of the adverse health consequences of its operations are slim.  Of course, there are instances where companies, and even industries, will face bankruptcy due to damage claims from individuals (e.g., asbestos).  However, such instances still leave the individual victims, their families, and the taxpayer picking up the bulk of the tab.
[Of course, our entire society, not just "industry," is responsible for the existence of these incentives.]

A recent development that threatens to change the cavalier attitudes of some companies is the entry of criminal law into the toxic tort arena.  Last month, in Cook County, Illinois, three corporate officers were convicted of murder after a cyanide exposure caused the death of one of their
firm's employees.

Most of us are aware of toxic tort, or mass tort, cases through the news media.  Substances we have heard about tend to be ones where the victims are many, where they reside in close proximity or have effective national organizations, and where there are articulate spokespersons.  These include urea formaldehyde foam insulation, DES, asbestos, Black Lung, DBCP, dioxin/agent orange, brown lung, EDB, PCB's, TCE, TDI, and many others.  I would like to run through a short list of substances that are suspected of causing a new generation of illnesses in individuals with whom I have been in contact:

• Formaldehyde in building materials as well as insulation.
• Pesticides and herbicides sprayed in or around homes.
• Carbon monoxide and other vehicle exhaust fumes from garages in high-rise offices and/or apartment
    buildings,and from faulty gas heating systems.
• Solvent fumes, including dry cleaning fumes.
• Involuntary tobacco smoking.
• Generalized indoor pollution caused by excessive weatherization of homes and office buildings.
• Plastic fumes due to fires.
• Diesel fumes and auto exhausts in the workplace.

The new category of illnesses to which I refer has been given several names:  chemical sensitivities, total allergy syndrome, immune system dysregulation, chronic systemic poisoning, etc.  I prefer to refer to them as "ecological illnesses" or E.I.

Briefly, E.I. appears to be the result of chemically induced immune system damage through which the individual becomes increasingly "sensitive" to different common substances in smaller and smaller amounts.  For example, an individual's immune system may become so sensitive to formaldehyde that a whiff of new fabric or tobacco smoke (which also contains formaldehyde) could cause severe symptoms.  The particular symptoms vary somewhat, but common ones include mental confusion, fatigue, headache, muscle and joint pains, and respiratory problems.

Once the illness has gotten out of control, an individual may require air filters and specially constructed "clean" living spaces, organic foods, purified water, and special household products in order to regain their health.  Such individuals often can not work in a modern office since exposures to formaldehyde, pesticides, tobacco smoke, solvents, perfumes and detergents - items to which we are each exposed daily - could cause serious health problems.

It is important to note that the medical community is not yet even convinced that the illness exists.  While some physicians have been diagnosing and treating people with these illnesses for years, others still claim that they are largely emotional problems.  One can only wonder why our Federal government and medical societies have failed to fund the research necessary to determine, once and for all, the extent and scope of ecological illnesses.  Perhaps the overriding reason is that no none really wants to know.  They don't want to learn how many people are being poisoned by their environments; they don't want to know how high a price we are paying for "better living through chemistry."

One can understand how difficult it is for the average toxic tort victims to function in our legal system.  For the E.I. victims, matters are even worse.  Following are some of the additional problems faced by these chemical victims in pursuing their legal rights:

• They are often too ill to go through the difficult process of finding an attorney competent in this highly specialized field.  Illness may also hamper the exchange of information necessary for effective legal representation.
• They have tremendous difficulty finding physicians trained in environmental and occupational medicine who are willing and/or able to make the diagnosis and to testify effectively on the causation issue.
• Often, people (including physicians and attorneys) refuse to accept chemically induced illness, preferring to label the individual as emotionally disturbed, suffering from psychosomatic illness and/or hysteria.  In fact, the stresses of being a chemical victims, as well as neuropsychiatric effects of many substances, often contribute to the appearance of psychiatric disturbance.
• They often are too ill to be examined and treated by the defendant's physicians, which is often difficult for a court to understand.  I have been in touch with people who have been intentionally exposed to very hazardous chemicals by defense physicians in an effort to determine whether that person is really as "sensitive" as they claim.  To others, specific tests and biopsies are sought which could cause very serious illness to a ecologically ill individual.
• They are often too ill to attend hearings and depositions in normal settings or to travel any substantial distances.  Often, the court is asked to order that any depositions be held in a "safe" room, often in the plaintiff's home.

Conclusion

And, what does the future hold for these and other toxic chemical victims?  Most certainly, recognition of ecological illnesses is increasing daily.  Research is now being performed on the immunologic and neurologic effects of many substances.  Attention to indoor pollution, food purity, and pesticide misuse is growing rapidly.

However, the common law tort system must eventually give way to a larger victim compensation system.  There are far too many people out there who are disabled due to toxic chemical exposures.  And the class of chemically sensitive individuals is growing at an enormous rate.  It is impossible to trace the illness of each individual to specific chemicals released by a specified manufacturer.  Too many victims fall between the cracks of our legal system.

In addition, the tort system has been ineffective in creating incentives for better corporate decision-making.  Our government regulators and the corporations make innumerable decisions for us as to how much risk is acceptable for a given product or use.  However, there is no effort to find the poor slob who happens to be that 1 in 100,000 who gets cancer from whatever makes plastic more flexible.  Perhaps the public will accept risks like that, but fundamental justice requires that the individual who draws the "sort straw" be compensated.  This is simply not the case at present.

Also, we must ask how many 1 in 100,000 chances are "reasonable" for us to assume.  Given the tens of thousands of chemicals in use, and leaving room for additive and synergistic effects, we may already have accepted more risk than the public would find tolerable.  Of course, that does not address the fact that risk assessment is performed almost solely on cancer risks, forgetting risks of neurological problems, birth defects, emotional disturbance, infertility, etc.

It is one thing to base estimates of carcinogenicity on tests performed on rats and mice.  It is quite another thing to measure the type of nerve damage that could ruin the career of a promising musician, data processor, or baseball player.  It is quite another thing to measure the nuances of mental functioning that can make the difference between a productive member of society and a misfit.  Rodents would hardly appear capable of yielding such information to researchers.  Better techniques for measuring and assessing non-carcinogenic risks must be found.

The future?  Right now, things appear ominous.  Aside from fears of nuclear war and world terrorism, we may well find ourselves in the midst of a chemical holocaust brought upon ourselves by bureaucratic incrementalism and corporate tunnel vision.

After all, we are being asked to trust the same people who gave us DDT, Keypone, Dioxin, PCB's EDB in our foods, asbestos in our schools and houses, DES to prevent miscarriages, UDDI, unvented gas heaters, tris flame retardant in childrens' sleepwear, hormones and antibiotics in our meat, pesticide residues in our food, and formaldehyde in our permanent press fabrics and paper towels.

The list goes on and on.  Those same folks who are supposed to be guarding the barn keep shutting the door after each horse has been stolen.  One after another.

Given our government's (hence our nation's) clear lack of resolve in protecting public health, it is my opinion that the future will continue to bring us wave after wave of new chemical victims.  As law librarians, you will be increasingly asked for assistance on toxic chemical issues.  As you continue to build your expertise and collections on toxic torts and related matters, I hope that you will play a major role in directing chemical victims and their attorneys towards the resources they need in their quest for justice.

 

Earon's Environmental Home Page                          Earon's Massage Home Page

Text of Published Articles:       Chemicals, Risk and the Public        The New Chemical Victims (1985)       Letters

List of Publications                      Quoted in Media                Referenced in Books/Articles

Revised 1-18-08