TOXIC & ENVIRONMENTAL TORTS

Albert M. Cohen

I.              INJURIES ADDRESSED BY TOXIC AND ENVIRONMENTAL TORT CASES

 A.Physical Injury

B. 

C.         Although physical injury plainly includes such commonplace harms as a broken arm, cuts and bruises, or burns, we do not have in California a simple, comprehensive definition of physical injury.  

D. 

E.         Analysis of whether an injury is compensable in tort cases begins with Civil Code § 3333, which provides:  "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not" (emphasis added).  Civil Code § 3282 provides that "Detriment is a loss or harm suffered in person or property" (emphasis added).  

F. 

G.         The Civil Code definitions are similar to those found in the Restatement (Second) of Torts § 7(2), which defines "harm" as follows:  "The word `harm' is used throughout the Restatement of this Subject to denote the existence of loss or detriment in fact of any kind to a person resulting from any cause."  (emphasis added)  Section 7(3) defines "physical harm" as follows:  "The words `physical harm' are used throughout the Restatement of this Subject to denote the physical impairment of the human body, or of land or chattels" (emphasis added).  

H. 

I.          Sometimes, the consequence of a toxic exposure will include quite visible, objective symptoms.  For example, the plaintiff in Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir. 1986), modified on denial of reh'g en banc, 797 F.2d 256, was literally drenched with carcinogens, and he almost immediately "suffered a brief period of dizziness, followed by leg cramps  . . .  [and] a stinging in his extremities."  Id., 788 F.2d at 317.  Long-term exposure to sufficient quantities of asbestos can result in asbestosis (which is an overgrowth of a connective tissue in the lung), or to mesothelioma (a form of cancer).  These physical conditions plainly constitute a loss or detriment and, therefore, are properly characterized as "physical injuries."

J. 

K.         Sometimes, however, toxic exposure (particularly exposures involving very small amounts of chemicals) results only in cellular or subcellular changes in the body.  For example, exposure to asbestos may result only in some lung scarring, pleural thickening or pleural plaques, which often do not cause any "objectively observable disablement[s]."  In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563, 1566 (D. Hawaii 1990).  Plaintiffs also often assert that exposure to toxic chemicals and carcinogens (e.g., benzene) changes the functioning of cells in the immune system with the result that the victim is more susceptible to future diseases, including cancer.

L.         The issue then arises whether such changes constitute legally compensable injury prior to the development of any diseases.  Are cellular and subcellular changes or immune system impairment "detriment" under Civil Code § 3333?  That is, are such changes a "loss or harm" under Civil Code § 3282?

M. 

N.         Resolution of this question involves more than just recovery for the asserted physical injury.  In nearly all jurisdictions, the existence of physical injury will trigger the recovery of damages for emotional distress as a form of "parasitic damages."  Thus, if the plaintiff can establish that toxic exposure has caused a physical injury, the plaintiff should be able to recover with relative ease damages for emotional distress resulting from the exposure (including the emotional distress that comes from fearing the development of other diseases).

O. 

P.         The cases around the country are split on whether cellular changes resulting  in no functional impairment constitutes a physical injury.  Some jurisdictions are willing to accept even mere exposure to toxic chemicals as a sufficient physical injury to support recovery of damages for fear of future illnesses (including cancer).  See, e.g., Sterling v. Veliscol Chemical Corp., 855 F.2d 1188, 1206 (6th Cir. 1988) (under Tennessee law, fear of contracting cancer as a result of ingesting water contaminated by toxic chemicals "clearly constitutes a present injury").  On the other hand, other jurisdictions require a showing of objective disease or impairment.  See, e.g., Rittenhouse v. St. Regis Hotel, 565 N.Y.S. 2d 365, 367 (N.Y. 1990) ("in view of the fact that asbestos was widely used and asbestos removal is now common, fear of cancer without a physical indication of disease is not reasonable"); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 529 (Fla. App. 1985), rev. denied, 492 So.2d 1331 (inhalation of asbestos was a physical impact; plaintiff failed to establish a "physical injury" to support recovery for fear of cancer).  A comprehensive review of the law in other jurisdictions as of 1992 can be found in Scott D. Marrs, Mind Over Body: Trends Regarding the Physical Injury Requirement in Negligent Infliction of Emotional Distress and "Fear of Disease" Cases, 28 Tort & Ins. L.J. 1 (1992).

Q. 

R.         The issue is presently unresolved in California.  The plaintiffs in Potter v. Firestone Tire & Rubber, 6 Cal.4th 964 (1993), asserted that the record and trial court findings would support a finding of physical injury because of cellular and subcellular changes and immune system impairment.  Id., 6 Cal.4th at 981-82.  Firestone asserted that "mere subcellular changes that are unaccompanied by clinically verifiable symptoms of illness or disease do not constitute a physical injury."  Id., 6 Cal.4th at 983.  Firestone advocated a "functional impairment" rule and contended that the plaintiffs had not established any existing impairment.

S. 

T.         The trial court's findings were somewhat confused on the issue.  The plaintiffs attempted to establish a variety of physical symptoms that allegedly resulted from their exposure to toxic chemicals.  But the trial court apparently rejected this evidence and did not include "an express finding that plaintiffs' exposure to the contaminated well water resulted in physical injury, cellular damage or immune system impairment."  Id., 6 Cal.4th at 983.  Instead, the trial court found only that "plaintiffs do have an enhanced `susceptibility' or `risk' for developing cancer and other maladies," which the trial court "characterized . . . as a `presently existing physical condition,' not as a physical injury."  Id., 6 Cal.4th at 984.

U. 

V.         The Supreme Court recognized that it was faced with an issue of first impression:  "No California cases address whether impairment of the immune system response and cellular damage constitute `physical injury' sufficient to allow recovery for parasitic emotional distress damages."  Id., 6 Cal.4th at 982 n.6.  Restating the issue slightly, the question would seem to be whether changes to the immune system or subcellular changes, may properly be characterized as a "physical condition," constitute a "physical injury" absent a showing of existing functional impairment (as opposed to a showing of increased risk of future functional impairment).  The Supreme Court did not resolve the question, however, concluding that in light of the trial court's findings, "we lack an appropriate factual record for resolving whether impairment to the immune response system or cellular damage constitutes a physical injury for which parasitic damages for emotional distress ought to be available." Id., 6 Cal.4th at 984.

W. 

X.         Absent guidance from the Supreme Court, trial courts must do the best they can.  On the one hand, a strong showing that toxic exposure has actually resulted in cellular changes to the immune system sounds like a serious, adverse physical change in the body.  Plaintiffs often will argue that toxic chemicals cause the same sort of cellular and subcellular changes that HIV causes.  It seems plain that a person diagnosed as HIV-positive has an existing physical injury as well as a virtual certainty of ultimately developing full blown AIDS.  On the other hand, if the cellular changes do nothing more than increase the chances of a future illness (particularly if the increase is not quantifiable), then the claim for damages seems analogous to a claim for recovery of lost or diminished chances, and such claims are not recognized in California.  See Bromme v. Pavitt, 5 Cal.App.4th 1487 (1992); Dumas v. Cooney, 235 Cal.App.3d 1593 (1992).

Y. 

Z. Emotional Distress

AA. 

BB.       As noted above, if the plaintiff can establish physical injury, then emotional distress resulting from that physical injury is recoverable as a form of parasitic damage.  However, recovery for emotional distress in California is not limited to cases where the plaintiff has established physical injury.  Beginning at the latest with Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916 (1980), disapproved on other grounds, Burgess v. Superior Court, 2 Cal.4th 1064, 1074 (1992), California law has dispensed with a requirement of physical injury as a necessary prerequisite to recovery of damages for emotional distress.  That rule was reaffirmed by the Supreme Court in Burgess, 2 Cal.4th at 1074, and was restated by the court in Potter, 6 Cal.4th at 986.  Most significantly, Potter held that emotional distress damages absent physical injury could be awarded even absent a special relationship between the plaintiff and defendant and in circumstances other than bystander cases such as Thing v. La Chusa, 48 Cal.3d 644 (1989).

CC. 

DD.       Although the Supreme Court has rejected physical injury as a limitation upon the recovery of damages for emotional distress, this has not meant that recovery for emotional distress is unrestricted.  The court continues to reject the idea that there is a generalized cause of action for negligent infliction of emotional distress that could be established simply by showing a breach of duty which results in emotional distress.  As the court explained most recently in Potter, "there is no duty to avoid negligently causing emotional distress to another."  Potter, 6 Cal.4th at 984.

EE. 

FF.       Moreover, even though physical injury is not a requirement, the court has imposed other significant limitations upon recovery of damages for emotional distress absent physical injury.  In the context of bystander liability, for example, Thing v. La Chusa, 48 Cal.3d 644 (1989), narrowly circumscribes the availability of relief to the physically injured person's close relatives by blood or marriage who contemporaneously witness (or otherwise sense) the accident and who suffer emotional distress beyond that which would be suffered by an ordinary person.

GG. 

HH.       It may be a little misleading to speak too generally about recovery of damages for emotional distress since there are different types of emotional distress and there is every reason to think that different rules might apply to different types of distress.  As just one example, the cause of action for assault permits recovery of damages based upon the apprehension of an imminent offensive or harmful bodily contact.  This type of emotional fright is quite different from the fear of developing a disease in the distant future (discussed below), and different rules apply to those two very different types of emotional harm.

II. 

JJ.        This outline will discuss only two types of emotional distress that are commonly asserted in toxic tort cases:  (1) disruption of lives and psychological damage; and (2) fear of future injury.

KK. 

1.Disruption of Lives and Psychological Damage

             When the four plaintiffs (two husbands and wives) in Potter learned that their well water had been contaminated with toxic chemicals, their lives were turned upside down.  They were forced to endure years of scientific testing on their property; they were forced to use bottled water; they were unable to take showers using their well water; and their property ultimately was condemned.  These disruptions took their toll upon the psychological condition of the plaintiffs, who consulted psychiatrists for their illnesses, and the trial court awarded damages reflecting both the disruptions ($108,100) and the psychological damage ($269,500).  Potter, 6 Cal.4th at 978.

            In its Supreme Court appeal, Firestone did not challenge the award for disruption and only perfunctorily challenged the award for psychiatric illnesses.  Potter, 6 Cal.4th at 980.  If seriously challenged, it seems likely the court would have readily affirmed these awards without imposing any significant limitation.  Long-standing precedent affirms an award of this type of emotional distress damage arising out of private nuisances or trespasses.  See, e.g., Acadia, California, Ltd. v. Herbert, 54 Cal.2d 328, 337 (1960); Kornoff v. Kingsburg Cotton Oil Co., 45 Cal.2d 265, 272 (1955); Herzog v. Grosso, 41 Cal.2d 219, 225 (1953).  Cases from other jurisdictions involving toxic contamination are in accord.  See, e.g., Ayers v. Jackson Tp., 525 A.2d 287 (N.J. 1987)(damages awarded for inconvenience and quality of life lost when drinking water was polluted).

            As Professor Dan Dobbs has explained in his leading treatise on the subject, "[p]laintiffs often emphasize personal discomfort, illness or mental anguish resulting from the nuisance.  These are recoverable elements of damages, as is simple inconvenience caused by the nuisance."  Dan B. Dobbs, Law of Remedies, § 5.6(2).

            It would thus seem that the only limitation upon recovery for disruption of lives and psychological damage resulting from that disruption would be the familiar damage limitation that the injury must be a natural and probable result of the toxic contamination.  This limitation will usually be easy to meet in light of the usual consequences of discovering toxic contamination on a piece of property (particularly residential property).

1.                   Fear of Future Injury

            Fear of future injury is an entirely different type of emotional distress, and courts around the country are sharply divided about its recoverability.  See Scott D. Marrs, Mind Over Body: Trends Regarding the Physical Injury Requirement in Negligent Infliction of Emotional Distress and "Fear of Disease" Cases, 28 Tort & Ins. L.J. 1 (1992).

            The issue is resolved in California as a result of the Supreme Court's decision in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (1993).  The primary holding is contained in the following carefully drafted paragraph:

"To summarize, we hold with respect to negligent infliction of emotional distress claims arising out of exposure to carcinogens and/or other toxic substances: Unless an express exception to this general rule is recognized: in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.  Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer.  The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer."  Potter, 6 Cal.4th at 997 (emphasis added).

            More simply, and without all of the qualifications, the court held that when the plaintiff can prove only negligence, and there is no physical injury, recovery for fear of a future disease will be limited to cases in which the plaintiff can prove the feared future disease will more likely than not result from the defendant's negligent conduct.

            The high court gave five policy reasons in support of its rule limiting recovery for "fear of" damages: (1) Given that all of us are exposed to carcinogens every day, an unrestricted right of recovery "to a potentially unrestricted plaintiff class" would impose a "tremendous societal cost" which might "compromise the availability and affordability of liability insurance for toxic liability risks."  Potter, 6 Cal.4th at 991.  (2) The potential threat to the health care system from unrestricted liability for fear of future disease claims.  Potter, 6 Cal.4th at 991-92.  (3) The risk that permitting fear of cancer plaintiffs to recover might dissipate the resources to compensate those who actually develop cancer.  Potter, 6 Cal.4th at 992.  (4) The need for "a sufficiently definite and predictable threshold for recovery to permit consistent application from case to case."  Potter, 6 Cal.4th at 993.  (5) Recognition of several factors that generally counsel limiting recovery for emotional distress:  "the intangible nature of the loss, the inadequacy of monetary damages to make whole the loss, the difficulty of measuring the damage, and the societal cost of attempting to compensate the plaintiff."  Potter, 6 Cal.4th at 994.

            The Supreme Court relaxes its limitations on recovery when the plaintiff establishes that the defendant has engaged in oppressive, fraudulent or malicious conduct as defined in Civil Code § 3294.  As the court explained, "[w]hen a defendant acts with oppression, fraud or malice, no reason, policy or otherwise, justifies application of the more likely than not threshold.  Any burden or consequence to society from imposing liability is offset by the deterrent impact of holding morally blameworthy defendants fully responsible for the damages they cause, including damage in the form of emotional distress suffered by victims of the misconduct who reasonably fear future cancer."  Potter, 6 Cal.4th at 998.

            Although the plaintiff in such a case is relieved of the burden of meeting the more likely than not threshold, recovery still depends upon the plaintiff making a showing that the fear is "reasonable, genuine and serious."  Potter, 6 Cal.4th at 999.  In order to make that showing, the plaintiff must establish that "the plaintiff's fear of cancer stems from a knowledge, corroborated by reliable medical or scientific opinion, that the toxic exposure caused by the defendant's breach of duty has significantly increased the plaintiff's risk of cancer and has resulted in actual risk of cancer that is significant."  Potter, 6 Cal.4th at 1000 (emphasis added).

            The requirement that the plaintiff show both a significant increase in the risk of cancer and that the actual risk of cancer is significant presents plaintiffs with a difficult hurdle to overcome.  It is common in toxic exposure cases for the plaintiff's expert witnesses to testify generally that there is a significant increase in the risk, but it is much more difficult to secure testimony that the actual risk caused by the toxic exposure is significant.  At this point, the science generally does not permit actual quantification of the risk, and defense counsel will vigorously cross-examine an expert who purports to be able to testify that a particular plaintiff's risk of cancer as a result of a particular exposure is significant.  Naturally, we will have to wait to see how the cases develop and, most importantly, how the appellate courts ultimately define "significant," a term which the Supreme Court left undefined in Potter.

A.                  Property Damage

1.                                           Diminution in Value/Cost to Repair/Loss of Use

            It is common for plaintiffs to recover damages for property loss resulting from toxic contamination and usual rules regarding damage to real property apply.  As a general rule, when there has been a physical harm to the property itself (e.g., by toxic contamination of the soil), the plaintiff is entitled to recover the lesser of diminution in value and cost to repair.  See Restatement (Second) of Torts § 929 (1979).  Under this rule, if the cost to repair substantially exceeds the diminution in value, the plaintiff will ordinarily be limited to the diminished value.  The rule promotes economic efficiency by not encouraging economically wasteful repairs.

            The Restatement recognizes a "personal use" exception to the general rule to permit the plaintiff to recover damages for cost to repair in excess of diminution in value when the land is being used for a "purpose personal to the owner."  Restatement (Second) of Torts § 929 (1979).  Usually, property being used as a residence triggers this exception.  The court in McKinney v. Christiana Community Builders, 229 Cal.App.3d 611 (1991), set forth the requirements for application of the personal use exception: there must be "substantial evidence (1) [the landowners] had a personal reason to repair the damages caused to their residence; (2) they intended to make those repairs; and (3) costs of repair bore a reasonable relationship to both the value of their home before harm and to the level of damages actually suffered due to the defendants' tortious acts." 

            Where the interference is simply with the right to possession, the plaintiff is entitled to damages measured by rental value.  See Dan B. Dobbs, Law of Remedies, § 5.1.  Interference with use and enjoyment will be measured by diminution in value for a permanent interference and diminution in rental value for a temporary interference, the plaintiff is also entitled to damages for personal illness or inconvenience caused by the nuisance (including, as noted above, damages for disruption of lives and resulting psychological harm).  Id.

            Toxic contamination cases present special issues regarding property damages.  Often, toxic contamination is an injury not only to the owner but also to the public generally (because of the risk the property will become a source of secondary pollution).  In such circumstances, courts have been willing to award the plaintiff full costs of restoration even where those costs substantially exceed the diminution in market value.  Professor Dobbs explains the rationale of these decisions:

"In [a toxic contamination] situation, damages should not usually be limited to the diminished market value of the land.  Instead, the landowner should he permitted to recover full restoration costs and all consequential damages that are properly established, at least if he can give the court assurance that repair, restoration or cleanup will actually take place.  Such a scenario gives the landowner no windfall and it entails no waste.  Because costs of the pollution affect others, or the public at large, the diminished value of the plaintiff's land is no guide to the actual costs imposed by the pollution.  Costs of repair or cleanup are thus appropriate, even if they exceed the diminished value of the land.  As indicated below, this result is supported by analogy to environmental laws, even if those laws do not apply to the particular case."  Dan B. Dobbs, Law of Remedies. § 5.2(5)

            The most significant environmental law to which Professor Dobbs refers at the end of the passage is The Superfund Act, also known as CERCLA -- The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq.  The provisions of the Act are complex and technical, and there has been a significant amount of litigation under its provisions.  See, e.g., United States v. Montrose Chemical Corp., 835 F. Supp. 534 (1993) (C.D. Cal. 1993) (suit against corporate defendants who released hazardous substances such as DDT and PCBs into the ocean via the Los Angeles County Sanitation District wastewater treatment system); Transportation Leasing Co. v. California, ____ F.Supp. ____, (C.D. Cal. Jan. 24, 1993), 1993 Westlaw 733014 (liability action arising out of cleanup at Operating Industries Inc. landfill in Monterey Park).  As a general matter, however, responsible parties under CERCLA may be held liable for "response costs" (which includes "all costs of removal or remedial action") as well as for "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from" a proscribed release of toxic pollution.  42 U.S.C. § 9607(a).  See, e.g., AIU Ins. Co. v. Superior Court, 51 Cal.3d 820 (1990); Aerojet-General Corp. v. San Mateo Cy. Superior Court, 209 Cal.App.3d 973 (1989).  One caveat is in order here:  CERCLA does not provide for the recovery of private damages unrelated to the cleanup effort.  See Price v. United States Navy, ___ F.3d ____ (9th Cir. 1994) [94 Daily Journal D.A.R. 15710, Nov. 8, 1994] (private plaintiff cannot recover medical monitoring costs as response costs under CERCLA).  

            There is case law supporting the view that Plaintiffs should be able to recover full cost of restoration even if it is greater than the diminution in value.  For example, in Baker v. Ramirez, 190 Cal. App. 3d 1123, 1137 (1987), the court upheld plaintiff's right to recover the costs of restoration of destroyed orange trees, even though the costs exceeded the diminution in market value.  Similarly, in Pacific Gas & Elec. Co., 233 Cal. App. 2d 268, 274 (1965), an inverse condemnation case, the court held that the proper measure of damages where a party was required to relocate a gas pipeline was the cost of relocation rather than the diminution in value.  The court held that diminution in value was not a proper measure of damages particularly when "[i]n the interests of safety as well as the prevention of a stoppage of the flow of gas in its main, plaintiff as a public utility, is required to take precautions designed to prevent any break in its mains." Id. at 274.  There is also case law supporting the view that "[r]estoration costs may be awarded even though they exceed the decrease in market value . . . `where there is reason to believe that the plaintiff will, in fact, make the repairs' (22 Am.Jur.2d, Damages, §132, at p. 192)." Heninger, 10 Cal. App. 3d at 863.  Since, in the hazardous waste context, plaintiffs are often required to remediate to protect the public or because it is required by law, they have argued that they should be entitled to recover remedial costs even if those costs exceed the decrease in market value. See Mailman's Steam Carpet Cleaning Corp. v. Lizotte, 616 N.E.2d 85 (Mass. 1993); Davey Compressor Co. v. City of Delray Beach, 639 So. 2d 595 (Fla. 1994).  

1.                                   Recovery for Stigma

            Some of the diminution in market value may be a result of the stigmatization and fear associated with properties that have been contaminated by toxic chemicals.  The defendant may attempt to argue that such fears are irrational and groundless and that the diminution in market value attributable to such fears should be ignored.  If accepted, this argument would result in reducing the diminution in value.  On the other side, the plaintiff may attempt to argue that once the fact of contamination of a particular property becomes widely known, the market value will plummet, and the plaintiff may be seeking to increase the diminution in value.

            Whether adjustments should be made to a market value figure to account for possible irrational fears has been litigated frequently in the condemnation context, particularly involving easements for power lines that give off electromagnetic radiation.  In one of the recent leading cases, Criscuola v. Power Authority of New York, 621 N.E.2d 1195 (1993), the expert testifying about market value indicated that one of the factors affecting the diminution in value of the property was the public's fear that electromagnetic radiation might cause cancer.  Adopting what is now the majority rule, the court rejected the power authority's attempt to establish that the fear was groundless and irrational.  California law is in accord.  As the court explained in San Diego Gas & Elec. Co. v. Daley, 205 Cal.App.3d 1334 (1988), "the truth or lack of truth in whether electromagnetic projections caused a health hazard to humans or animals was immaterial.  Rather the question was whether the fear of the danger existed and would affect market value."  Id., 205 Cal.App.3d at 1339.

            In Bixby Ranch Company v. Spectrol Electronics Co.,  Case No. 052566 (Los Angeles County Superior Court) the jury awarded Plaintiff $826,500 in post cleanup "stigma" damages for the increased risk associated with remediated property and the effect of remediated contamination on its market­ability and financeability, i.e. the diminution in the value of the property after it had undergone an environmen­tal remediation.  The plaintiff in that case relied upon several cases including Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal. App. 2d 578, 606 (1954) in which the court held that it should apply damage formula most appropriate to compensate injured party for loss sustained and Reed v. King, 145 Cal. App. 3d 361 (1983) which held that a seller was potentially liable for failing to disclose stigma that attached to property that had been site of multiple murders.  See also In re Paoli Railroad Ward PCB Litigation 35 F.3d 717 (3rd Cir. 1994)(allowing stigma damages). 

            It would appear, then, that recovery for stigma is appropriate so long as competent expert testimony establishes that the stigma exists and that it affects market value.

A.                  Expenses of Medical Monitoring

            In addition to personal injury and property loss, toxic contamination cases often involve a claim by the plaintiff for damages measured by the costs of future medical monitoring.  When the plaintiff has established an existing physical injury, the award of expenses for medical monitoring is simply a form of consequential damages, and there is no dispute as to their availability.

            A closer question is presented when the plaintiff has not yet suffered any physical injury but nevertheless demands compensation for medical monitoring.  Arguably, the claim in such circumstances is similar to a claim for future pecuniary loss, which may not be recoverable in an action for more negligence under the pecuniary loss rule.  See Seely v. White Motor Co., 63 Cal.2d 9, 18 (1965).

            The Supreme Court resolved this issue in Potter in favor of permitting an award for medical monitoring absent physical injury.  Adopting the analysis first set out in Miranda v. Shell Oil Co., 17 Cal.App.4th 1651 (1993), the court held that medical monitoring costs could be awarded "where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff's toxic exposure and that the recommended monitoring is reasonable."  Potter, 6 Cal.4th at 1009.

            The Supreme Court identified five factors that would be relevant in determining whether monitoring was reasonable and necessary:  "(1) the significance and extent of the plaintiff's exposure to chemicals; (2) the toxicity of the chemicals; (3) the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of the members of the public at large of developing the disease; (4) the seriousness of the disease for which the plaintiff is at risk; and (5) the clinical value of early detection and diagnosis."  Id.

A.                  Punitive Damages

            Punitive damages are of course available in toxic tort cases.  The usual rules regarding punitive damages apply.  The plaintiff must satisfy the requirements of Civil Code § 3294, which provides in part as follows:

"(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant."

            In Potter, Firestone's egregious conduct resulted in the trial court awarding $2,600,000 in punitive damages.  The Court of Appeals affirmed, and while the Supreme Court reversed and remanded, there was no suggestion that the amount was excessive. 

            Practitioners sometimes assert that punitive damages can be awarded only for intentional torts and that negligence is an insufficient basis for a punitive award.  That is not exactly true.  As the Supreme Court noted in Potter, punitive damages "sometimes may be assessed in unintentional tort actions."  Potter, 6 Cal.4th at 1004.  As explained in SKF Farms v. Superior Court 153 Cal.App3d 902 (1984), which was cited favorably by the Supreme Court in Potter, "[e]ven `nonintentional torts' may form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of others."  SKF Farms, 153 Cal.App.3d at 907 (emphasis added).  See also Peterson v. Superior Court. 31 Cal.3d 147, 158 (1982).  Punitive damages may also be awarded absent an intent to causes the harm "when a party intentionally performs an act from which he knows, or should know, it is highly probable harm will result."  Ford Motor Co. v. Home Ins. Co., 116 Cal.App.3d 374, 381 (1981).  Thus, the question under Civil Code §3294 is not whether the underlying cause of action is for an intentional tort or for negligence, but, rather, whether the facts establish the requisite malice, oppression or fraud. 

            The Supreme Court in Potter held that the evidence regarding Firestone's conduct satisfied the requirements of Civil Code §3294, and the court's factual analysis is helpful in identifying the type of conduct that can trigger punitive damages in toxic tort cases:

                        "The trial court determined that in May of 1977, officials in key management positions at Firestone's Salinas plant had increased knowledge regarding the dangers involved with the careless disposal of hazardous wastes, and had a specific, written policy for hazardous waste disposal.  However, these officials, while professing support for the policy in written distributions, in actuality largely ignored the policy.  The court found especially reprehensible the fact that Firestone, through its plant production manager, actively discouraged compliance with its internal policy and California law solely for the sake of reducing corporate costs.  Under these circumstances, we believe there are sufficient facts supporting the trial court's conclusion that such conduct displayed a conscious disregard of the rights and safety of others."  Potter, 6 Cal.4th at 1000.

            Given this analysis, it would appear that punitive damages would be permissible in any case where a defendant knowingly (or perhaps recklessly) disposes or releases toxic chemicals in an improper manner.  Such conduct is likely to be in violation of state or federal environmental laws and presents the public with potentially serious health risks.  It will also usually be true that an improper disposal method will be less expensive than a proper disposal method, so the plaintiff will often be able to argue that the defendant violated the law and exposed persons to risks solely to save money.

            The overall purpose of punitive damages "is to punish wrongdoing and thereby to protect [the public] from future misconduct, either, by the same defendant or other potential wrongdoers."  Adams v. Murakami, 54 Cal. 3d 105, 110 (1991).  See also Neal v. Farmers Ins. Exchange, 21 Cal.3d 910 (1978).  In determining the amount of punitive damages, the fact finder is supposed to consider three factors: (1) the nature of the defendant's wrongdoing; (2) the amount of compensatory damages; and (3) the wealth of the defendant.  Neal, 21 Cal.3d at 928.

            The ultimate question for a reviewing court is "whether the amount of damages `exceeds the level necessary to properly punish and deter.'"  Adams, 54 Cal.3d at 110.  In order to make that determination, the plaintiff must introduce evidence on all three of the factors identified above.  The nature of the defendant's wrongdoing and the amount of compensatory damages will naturally be in the record as part of the plaintiff's liability and damages case.  In Adams, the court held that the plaintiff must introduce evidence of the defendant's financial condition in order to complete the record for purposes of judicial review.  Id.  ("A reviewing court cannot make a fully informed determination of whether an award of punitive damages is excessive unless the record contains evidence of the defendant's financial condition.")

I.  LEGAL THEORIES OF LIABILITY

A. Negligence

B.        

1.Elements

            a.            Defendant owes a duty of care to the plaintiff(s);

b.            Defendant breaches that duty;

c.            Defendant's breach proximately causes the plaintiffs' injuries;

d.            Plaintiff has suffered damages as a result of the defendant's breach.

See 6 Witkin, Summary of California Law (9th Ed.  1988) Torts, §732.  Nally v. Grace Community Church of the Val­ley, 47 Cal. 3d 278, 292-93, (1988), cert. denied, 490 U.S. 1007 (1989); U.S. Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 594, (1970).

1.Nature of Claims

a.            Negligently permitting toxic chemicals to contaminate land.

            Among the claims most commonly made by plaintiffs in hazardous waste cases are claims that the defendants negligently disposed or handled toxic chemicals allowing plaintiffs or their properties to be exposed to such chemicals, resulting in damage to the plaintiffs or their property.  For example, in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (1993), the plaintiffs sued Firestone after discovering toxic chemicals had con­taminated their water wells.  They al­leged that Firestone had illegally dumped toxic chemicals in a landfill adjacent to their property which was not suitable for such chemicals.  The trial court found that Firestone was negligent for dumping toxic wastes at the landfill because it knew that the dumping was prohibited by law.

            Similarly, in Newman v. Stringfellow (Cal. Su­per. Ct., Riverside County, No. 165994) about 3,800 former and present Glen Avon residents who were allegedly exposed to toxic pollutants from the Stringfellow Acid Pits filed personal injury claims, including claims for negligence, against the owners of the site, the generators of the toxic chemicals and the State of California.  The majority of the defen­dants settled with the plaintiffs before trial.  The state, however, did not settle, and the jury found the state was liable to 9 of 17 test plain­tiffs.  Significantly, the jury did not find the one remaining industrial defendant liable for any of the plaintiffs' injuries.

            Ewell v. Petro Processors of Louisiana, Inc., 364 So. 2d 604 (Ct. App. La. 1978) involved a claim by a neighboring landowner against the site operator and gen­erators.  The court held the dis­posal site operator liable for negligently permitting toxic mate­rials to escape onto neighboring land.  However, it, like the Stringfellow jury, refused to hold the generators liable.  It held that they could not be found liable absent a showing that they knew or had reason to know of the leakage from the site.

b.            Negligent failure to disclose.

            Plaintiffs have also brought claims against defendants alleging that the defendants negligently failed to disclosed the alleged contamination.  These claims are often brought by current landowners against former landowners who are alleged to have contaminated the property and failed to disclose the contamination to subsequent purchasers.  For example, Newhall Land & Farming Co. v. Superior Court, 19 Cal. App. 4th 334 (1993), involved claims by a farming company, Newhall, which purchased property and then discovered petroleum contamination, heavy metals and other contaminants in the soil and groundwater on the property.  Newhall brought an action based on various theories including negligent failure to disclose.  The court held that the Plaintiff landowner could plead a claim for negligently failing to disclose.  The court held that this duty applied even if there were intervening sales.  Note, however, that other courts have held that a vendor only owes a duty to the original purchaser, not to subsequent vendees.  See, e.g.,  Lyden Co. v. Citgo Petroleum Corp., 1991 WL 325786 (N.D. Ohio 1991).

c.            Negligence per se.

            California Evidence Code section 669 provides that:

(a) The failure of a person to exercise due care is presumed if:  (1) He violated a statute . . .; (2) The violation proximately caused . . . injury . . . to property; (3)  The . . . injury resulted from an occurrence of the nature which the statute . . . was designed to prevent; and (4) The person suffering . . . the injury to his . . . property was one of the class of persons for whose protection the statute . . . was adopted." 

See Lua v. Southern Pacific Transp. Co., 6 Cal. App. 4th 1897, 1901 (1992). 

            Based on this provision, plaintiffs have alleged that defendants who violated hazardous waste laws are negligent per se.  For example, in Newhall, the plaintiff landowner claimed that the defendants had violated section 5411 of the Health and Safety Code which prohibited the discharge of waste "in any manner which will result in contamination, pollution or a nuisance."  The court held that Newhall had stated a cause of action under the doctrine of negligence per se.[1] 

            It should be noted, however, that in order to sustain a claim for negligence per se, the plaintiff must show that it was one of the class of persons for whose protection the statute was adopted.  See, e.g., Akins v. Sacramento Municipal Utility District, 18 Cal. App. 4th, 208, 224 (court dismissed a negligence per se claim on the grounds that the provision at issue had no application to the plaintiff).  Defendants may be able to successfully argue that hazardous waste laws were enacted for the protection of the general public, not for the plaintiffs themselves, and therefore that plaintiffs cannot prevail on their negligence per se claims.  See, e,.g. Lutz v. Chromatex, 718 F. Supp. 413 (M.D. Pa. 1989)(holding that neither the Pennsylvania Clean Streams Law nor the Pennsylvania Solid Waste Management Act provides for a private cause of action for damages, and therefore plaintiff's negligence per se claims were barred.  The court held that there was no legislative intent to permit plaintiff's negligence per se claims to proceed).  Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Railway Co., 857 F. Supp. 838, (dismissing negligence per se claims).

A. Strict Liability

B.

C.         Section 519 of the Restatement (Second) of Torts provides strict liability for damages resulting from an abnormally dangerous activity.  "`An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. . . .'"  Luthringer v. Moore, 31 Cal.2d 489, 498 (1948); Edwards v. Post Transp. Co., 228 Cal.App. 3d 980 (1991). 

D. 

E.         Section 520 of the Restatement (Second) of Torts sets forth six factors to be considered in determining whether an activity is abnormally dangerous:

F. 

                        1.         Existence of a high degree of risk of some harm to the person, land or chattels of others­;

                        2.         Likelihood that the harm that results from it will be great;

            3.         Inability to eliminate the risk by the exercise of reasonable care;

                        4.         Extent to which the activity is not a matter of common usage;

                        5.         Inappropriateness of the activity to the place where it is carried on;

                        6.         Extent to which its value to the community is outweighed by its dangerous attributes.

See, e.g., Edwards, 228 Cal.App.3d at 983 (applying criteria under California law); Fallowfield v. Strunk, 23 Envtl.L.Rep. (Envtl.L.Inst.) 20,119 (E.D. Pa., 1992) (applying these criteria to hazardous waste case under Pennsylvania law). 

            Applying these criteria, many courts have found that the use and disposal of hazardous industrial wastes can be abnormally dangerous.  For example, in Potter, 6 Cal.4th at 977, the trial court found that Firestone engaged in ultrahazardous or abnormally dangerous activities by dumping toxic substances in a landfill not suited for such chemicals and therefore was strictly liable for the consequences of its activity.  The California Supreme Court, however, did not reach Firestone's contention that the trial court erred in finding that its disposal activities were ultrahazardous.  See also T&E Indus., Inc. v. Safety Light Corp., 587 A.2d 1249 (N.J. 1991) (former owners had deposited radioactive tailings at the property between 1917 and 1926); Prospect Indus. Corp. v. Singer Co., 569 A.2d 908 (N.J. 1989) (former owners of a manufacturing plant contaminated property with PCB's); Updike v. Browning-Ferris, Inc., 808 F. Supp. 538, 543 (W.D. La. 1992) (Louisiana law) ("the storage of hazardous waste in [open] pits is an ultrahazardous activity").

            However, it is important to keep in mind that courts are generally very careful in weighing the various factors set forth in the Restatement to determine whether activities should be considered ultrahazardous.  For example, in Edwards v. Post Transp. Co., 228 Cal. App. 3d 980 (1991), the plaintiff was overcome by sulfuric acid released from a tank.  He sued the company which employed the truck driver who allegedly caused the release.  The court applied the Restatement factors.  Although it concluded that the use of sulfuric acid was not a matter of common usage and that its use was not so necessary as to insulate its users from strict liability, it ultimately concluded that the risk could be eliminated through the exercise of reasonable care and held that the use of sulfuric acid should not lead to strict liability.

            In Ahrens v. Superior Court, 197 Cal. App. 3d 1134, (1988), plaintiffs sued PG & E and oth­ers for injuries allegedly caused by exposure to PCBs and other toxic sub­stances following a fire in a downtown San Francisco office building.  At is­sue was PG & E's placement of electri­cal transformers which contained PCBs in areas of dense population.  The ap­pellate court did not find that PG & E's use of these transformers consti­tuted an ultrahazardous or abnormally dangerous activity, and thus was sub­ject to strict liability.  However, the court remanded the case to the trial court to determine the issue using the criteria in section 520 of the Restatement (Second) of Torts.  Id. at 1149.  See also Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir. 1992)(remanding case to the district court to de­termine if, under Colorado law and ap­plying section 520 of the Restatement (second) of Torts, cleaning up a haz­ardous waste site was an ultrahazardous or abnormally dangerous activity to which strict liability principles ap­ply). 

            One area that has been particularly controversial is whether the storage of gasoline and similar products in underground storage tanks constitutes an ultrahazardous activity.  Some courts have held that strict liability applies to the storage of gasoline in underground tanks.  See, e.g., Yommer v. McKenzie, 257 A.2d 138 (Md. 1969) and Southern New England Telephone Co. v. Cliffort, 5 C.T.L.R. 331 (Conn. Super. Ct. Dec. 10, 1991).  However, many courts have been unwilling to apply the doctrine of strict liability to environmental claims involving storage of petroleum products in underground storage tanks, because they have found that the risk can be eliminated by the exercise of reasonable care.  See, e.g., Hudson v. Peavey Oil Co., 566 P. 2d 175 (Ore. 1977)(court refused to apply the doctrine of strict liability where the evidence did not show that the risk of seepage from underground gasoline tanks could not be eliminated by reasonable care); Arlington Forest Assoc. v. Exxon Corp., 774 F. Supp. 387 (E.D. Va. 1991)(strict liability did not apply to gasoline underground storage tanks since reasonable precautions would have sufficed to prevent the harm); E.Q. at Bedminster, L.P. v. Texaco, Inc., No. SOM-271-90 (N.J. Super. June 26, 1992) (storage of petroleum in an underground storage tank "is a matter of common usage," and the risks can be eliminated through compliance with state safety codes).  Although no California appellate court has yet ruled on the question of whether strict liability applies to underground storage tanks, at least one California Superior Court has held that strict liability applies to soil contamination caused by leaking underground gasoline storage tanks.  However, on appeal, the appellate court expressly declined to reach the issue and instead held that the claims were barred by the statute of limitations.  Wilshire Westwood Assoc. v. Atlantic Richfield Co., 20 Cal. App. 4th 732 (1993).  On the other hand, a court applying the logic applied in Edwards, in the context of leakage of petroleum products from underground storage tanks, may well find that strict liability does not apply to such activities.

A. Nuisance

B. 

C.         Nuisance cases have been brought with increasing frequency in recent years.  There appear to be at least two reasons for this trend.  First, as discussed in the defenses section below, continuing nuisance claims may be a viable way for plaintiffs to avoid statute of limitations problems.  Second, there is an argument that nuisance claims are, in effect, strict liability claims thereby relieving the plaintiff of any obligation to demonstrate fault or even to demonstrate the strict liability factors set forth in the Restatement.

D. 

1.         Elements

2. 

3.         In California, a nuisance is defined as:

4. 

Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, . . .

Cal. Civil Code §3479.  This provision has been broadly construed "to encompass almost every conceivable type of interference with the enjoyment or use of land or property."  Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 919 (1980); People v. Stafford Packing Co., 193 Cal. 719, 725-726 (1924); Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125, 1136 (1991)("Mangini I")("The statutory definition of nuisance appears to be broad enough to encompass almost every conceivable type of interference with the enjoyment or use of land or property").

1.                                           Standard of Care

            It is not clear what standard of care, if any, courts will apply to de­termine liability for nuisance.  Some courts have held that under California law, sections 3479 and 3483 are essentially strict liability provisions and that parties are liable, regard­less of any wrongful conduct, sim­ply because a nuisance exists and has not been abated. See, e.g., Shields v. Wondries, 154 Cal. App. 2d 249, (1957)(holding that a defendant could be liable for a nuisance despite the fact that defendant's conduct was neither intentional, negligent, or subject to tradi­tional strict liability concepts).  The court reasoned that "it is clear that an owner of land may not do even non-negligent acts on his property with impunity where they create a nuisance as to his neighbor, and that in such circum­stances the owner of the neighbor­ing land is entitled to appropri­ate relief."  Id., at 255.  See also Portman v. Clementina Co., 147 Cal. App. 2d 651 (1957) (defining nuisance strictly according to Civil Code Section 3479 rather than on find­ing of negligence).  Application of this standard makes it extremely easy for plaintiffs to establish nuisance claims.  

            Other courts, however, have held that a landowner cannot be liable absent some sort of cul­pable conduct.  In Lussier v. San Lorenzo Valley Water Dist., 206 Cal. App. 3d 92 (1988), for example, the Plaintiffs suffered property dam­age caused by debris left in an upstream watershed which flowed downstream during heavy flooding, battering and damaging Plaintiffs' house and surrounding property.  Plaintiffs argued that nuisance liability could exist despite an absence of wrongful conduct.  The court rejected the notion that the defendant was liable simply be­cause it owned the property con­taining the nuisance.  Id. at 106.  The court reasoned that "where liability for the nuisance is predicated on the omission of the owner of the premises to abate it, rather than on his having cre­ated it, then negligence is said to be involved."  Id. at 105 (em­phasis added) (quotation omitted).  Thus, the Court held that Plain­tiffs needed to show some wrongful conduct upon which to base the nuisance cause of action.  See also Stoiber v. Honeychuck,  101 Cal. App. 3d 903 (1980); and Dufour v. Henry J. Kaiser Co., 215 Cal. App. 2d 26, 29 (1963).

            In Lincoln Properties, Ltd. v. Higgins, 36 Env't Rep. Cas. (BNA) 1228, 23 Envtl. L. Rep. (Envtl. L. Inst.) 20,665 (E.D. Cal, 1993), the court held that if the alleged nuisance was created by violation of a public code, ordinance, or requirement, it is a nuisance per se.  It found a nuisance per se where the public nuisance was cre­ated by violating a discharge per­mit requirement and county code requirements.  This case seems to hold, therefore, that some form of culpable conduct is required.  Other recent cases indicate that the defendant must have en­gaged in some sort of culpable conduct.  Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125 (1991) (violating a lease provision); Newhall Land & Farming Co. v. Superior Court, 19 Cal. App. 4th 334 (1993) (failure to disclose).

1.         Claims by current property owners against former occupiers of the land

            Nuisance cases are frequently brought by current property owners againts prior occupiers of the land.  These cases are most frequently asserted where landowners discover hydrocarbon contamination on their properties, they are forced to remediate, they sustain a loss in property value, and they are unable to bring claims against the prior occupiers under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") because of CERCLA's petroleum exclusion.

            Defendants in these cases have argued that nuisance claims can only be brought by one property owner against a neighboring property owner and, therefore, that no nuisance claim can be brought against a prior owner or occupier of the property.  There is a significant split in authority around the country as to whether a nuisance action can be brought against a prior occupier of the land.

            Until a couple of years ago, there was considerable doubt, under California law, as to whether a current landowner could bring a nuisance claim against a prior landowner.  For example, in Longfellow v. County of San Luis Obispo, 144 Cal. App. 3d 379 (1983), a California court held that the former owner of land was not liable for injury sustained by persons while on the land after the property has been transferred.  Similarly, in Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283, 292 (N.D. Cal. 1984), a federal district court, applying California law, held that nuisance claims only arise from the invasion of another's interest and probably cannot be brought against former owners.

            However, in 1991, a California Court of Appeal held that a private nuisance action can be brought against a former tenant.  Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125 (1991).  In Mangini I the current property owner sued a defendant who had leased the property from a prior owner and allegedly contaminated the property with hazardous wastes.  The plaintiff alleged multiple causes of action including nuisance and trespass.  The defendant argued that nuisance actions were limited to actions against neighboring property owners and could not be brought against a former occupant of the land.  The court disagreed, holding that the lessee could be liable for nuisance for contaminating the property and failing to clean it up.  The court rejected defendant's claim that it could not be held liable because it did not currently have a possessory interest in the property and held that any party which created or assisted in the creation of a nuisance is responsible for the ensuing damage.  In Mangini I, the defendant argued that consent was a defense to a nuisance claim and that the property owner consented to its activities.  The court agreed that consent was a defense, but upheld the nuisance claim based on allegations that the defendant had violated its lease without the plaintiff's consent. 

            Although Mangini I held that a nuisance action could be brought against a former tenant, it was still unclear whether a landowner could bring a nuisance claim against a former owner.  Subsequent court decisions have indicated that such an action may be viable in California.  Newhall Land & Farming Co. v. Superior Court, 19 Cal. App. 4th 334 (1993), involved claims by a farming company, Newhall, which purchased property and then discovered petroleum contamination, heavy metals and other contaminants in the soil and groundwater on the property.  Newhall then brought an action based on continuing nuisance, continuing trespass and negligence against Mobil Oil and Amerada Hess which had previously owned the property.  The defendants argued that since a nuisance is an invasion of the property rights of the person bringing the action, there could be no nuisance action here because, at the time the alleged contamination occurred, the current property owner's rights were not invaded.  They argued that contaminating their own property could not be deemed an invasion of their own property rights and they could not have brought a nuisance claim against themselves.  Since Newhall was their successor in interest, they argued that it had no cause of action against them for nuisance.

            The appellate court disagreed, holding that the defendants'                conduct created a condition on the property which was, and which remains, injurious to health.  Once [defendants] sold their interests without disclosing the contamina­tion, other parties became involved who, upon discovery of the contamination, could bring a claim against [defendants] in an attempt to force them to accept responsibility for their creation of a nuisance.  [I]n the context of this case, the time of the creation of the nuisance is immaterial with respect to [defendants'] liability.  Id. at 344.

The court rejected the argument that defendants consented to the activity by noting that the disposal activity was unlawful and therefore could be a basis for a nuisance claim.  Other California courts have agreed that nuisance claims can be brought against prior owners.  See Capogeannis v. Superior Court, 12 Cal. App. 4th 668, 673 (1993); KFC Western, Inc. v. Meghrig, 23 Cal. App. 4th 1167 (1994).  However, the California Supreme Court has not specifically addressed this issue.

            Outside of California, a number of courts have held that an action for private nuisance is only appli­cable to conflicts between contemporaneous neighbors, and not to conflicts between successive occupants of the same property.  See, e.g., Philadelphia Elec. Co. v. Hercules, Inc., 762 F. 2d 303, 314 (3d Cir. 1985), cert. denied, 474 U.S. 980, (1985); Wilson Auto Enterprises, Inc. v. Mobil Oil Corp., 778 F. Supp. 101 (D.R.I. 1991); Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784 (D.N.J. 1989). 

A. Trespass

B. 

C.         Trespass is an unlawful interference with possession of property.  5 Witkin, Summary of Cal. Law (9th Ed. 1988) Torts, §604-609; Mangini, 230 Cal. App. 3d at 1141.  Trespass may include contamination of another's property with hazardous wastes.  See, e.g., Kornoff v. Kingsburg Cotton Oil Company, 45 Cal. 2d 265 (1955) (defendant committed trespass by emitting dust, lint and ginning waste which covered plaintiff's plants and shrubbery).  Whenever a nuisance claim exists, the plaintiff may also make a claim of trespass.  "Because the creation of either a private or public nuisance is tortious, such conduct may support a claim for trespass."  KFC Western, Inc., 23 Cal. App. 4th at 1182.

D. 

E.         As with private nuisance, there is a question as to what standard of care applies to trespass claims.  Courts in various jurisdictions, including California, have held that fault is not a consideration in a trespass case.  See Fresno Air Service v. Wood, 232 Cal. App. 2d 801 (1965); Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P. 2d 1064, 1067 (Colo. Ct. of App. 1990); Mountain States Tel. & Tel. Co. v. Vowell Constr. Co., 341 S.W. 2d 148 (Tex. 1960). 

F. 

G.         In addition, as with private nuisance, there is a question as to whether a trespass is committed when property is contaminated by a prior owner or lessee.  Prior occupiers generally argue that since they placed the contamination on the property lawfully, with consent, the disposals were not tortious and, therefore, no trespasses occurred.  For example, in  Wellesley Hills Realty Trust v. Mobil Oil Corp., 747 F. Supp. 93, 98-99 (D. Mass. 1990), the court held that no trespass is committed in such a situation, because the initial disposal of wastes is in no way "tortious" (even if it is technically "unlawful" under public health statutes).  See also Wilson Auto Enterprises, Inc. v. Mobil Oil Corp., 778 F. Supp. 101 (D.R.I. 1991)(present property owner cannot maintain ac­tion in trespass against former lessee for contamination because former lessee occupied and used land within the rights of its lease); Capogeannis v. Superior Court, 12 Cal. App. 4th 668 (1993)(holding that plaintiff could not state a claim for trespass against a defendant for a trespass which occurred when the defendant owned the land because "one cannot commit an actionable interference with one's own possessory right").

H. 

I.          An argument can be made, however, that by leaving behind contamination after the property is sold, the disposer tortiously interferes with the current owner's possession.  Section 160 of the Restatement (Second) of Torts provides that a trespass may be committed by the continued presence on land of an invasive article placed there by an actor, even if originally placed there by consent of the original owner, so long as the consent has since then been effectively terminated.  Based on this analysis, Mangini I held that trespass claim could be asserted by a current owner against the lessee of a former owner, where the lessee allegedly disposed of hazardous wastes at the property in violation of his lease.  Mangini I, however, did not specifically address whether a trespass action could be asserted against a former owner who contaminated his property and then sold the property without remediating it. 

J. 

            In Newhall Land & Farming Co. v. Superior Court, 19 Cal. App. 4th 334 (1993), however, the court held that a trespass claim could be asserted against a prior owner.  The court held that when the contamination was disposed on the property by the prior owner, it created a public nuisance and therefore was tortiously placed there.  As long as it remained in place, the court held that there was a continuing trespass.  Similarly, in KFC Western, Inc. v. Meghrig, 23 Cal. App. 4th 1167 (1994), the court, relying on the Restatement Second of Torts and various cases including Mangini I and Newhall, held that a continuing trespass theory can be asserted "where contaminants have been left on the property by a prior owner."

A. Intentional Infliction of Emotional Distress

B. 

            Many toxic tort plaintiffs have in­cluded claims based upon a theory of inten­tional infliction of emotional distress be­cause they have not yet manifested any physical injuries as a result of the expo­sure.  By alleging emotional distress, they have the requisite current injury to recover damages.

            Under Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991), a plaintiff alleging intentional inflic­tion of emotional distress must prove:

                 (i)     The defendant's conduct was extreme and outrageous;

                (ii)    The defendant's conduct caused the plaintiff severe emotional distress; and

                (iii)    The defendant's conduct was directed at the plaintiff.

            This latter element can be very difficult for plaintiffs to overcome.  For example, in Potter v. Firestone, the California Supreme Court found that it was questionable whether the record supported a finding of intentional infliction of emotional distress because it was unclear whether Firestone's actions were directed at the particular plaintiffs. Potter, 6 Cal.4th at 1002-03.  The court also questioned whether the trial court made a finding that Firestone possessed the requisite knowledge on which to base such a claim. 

A. Fraudulent Concealment and Misrepresentation

B. 

C.         Another claims plaintiffs have asserted against defendants is fraudulent concealment.  The elements of this claim are:

D. 

E.                    1.          Defendant concealed a material fact.

F. 

                        2.         Defendant had a duty to disclose the fact.

                        3.         Defendant intentionally concealed the fact with the intent to defraud the plaintiff.

                        4.          Plaintiff was unaware of the fact.

5.          Plaintiff damaged as a result of the concealment.

Marketing West, Inc. v. Sanyon Fisher (USA) Corp., 6 Cal. App. 4th 603, 613 (1992).

            Fraudulent concealment may be a basis for plain­tiffs to circumvent the workers' compensa­tion bar.  In Barth v. Firestone Tire & Rubber Co., 661 F. Supp. 193, 202-03 (N.D. Cal. 1987), Firestone sought summary judgment on plaintiff's claim, assert­ing that the only remedy for the al­leged toxic exposure in the work place was a workers' compensation claim.  The court held that by pleading conceal­ment, the plaintiff as entitled to seek a remedy beyond workers' compensation.

I.  BURDEN OF PROOF

A.                  More Likely Than Not Standard

            Toxic tort cases are a species of ordinarily civil tort liability, and liability and compensatory damages are accordingly established under the preponderance of evidence or more likely than not standard of proof.  Civil Code § 3294 requires that the elements of a punitive damage award be proven by clear and convincing evidence.

A. Fear of Cancer Standard

B. 

C.         The substantive standards for recovery of damages for fear of contracting a future disease set forth in Potter sound very much like burden of proof standards.  As explained above, when the defendant's conduct is only negligent and the plaintiff has not suffered physical injury, the plaintiff can recover damages for fear of contracting a future disease only if the plaintiff can prove the future disease will more likely than not result as a consequence of the defendant's wrongful conduct.  Restating this slightly, the plaintiff must prove by a preponderance of the evidence that it is more likely than not the plaintiff will become ill before the plaintiff can recover damages for fear of that illness.

D. 

E.         When the defendant's conduct is fraudulent, oppressive or malicious, the plaintiff can succeed by proving by a preponderance of the evidence that the plaintiff's fears are genuine and reasonable.  As explained above, this means the plaintiff must prove by a preponderance of the evidence that the defendant's wrongful conduct has resulted in a significant increase in the plaintiff's risk of becoming ill and has resulted in an actual risk of illness that is significant.

F. 

G.         It should be clear that Potter does not actually alter the burden of proof.  Proof is still by a preponderance of the evidence.  Rather, Potter establishes different substantive standards as a matter of public policy for recovery of damages for fear of future disease absent physical injury.

H. 

I. 

II.  DEFENSES

A. Statute of Limitations

B.        

C.         The statute of limitations for personal injury claims is one year.  Cal. Civ. Proc. Code § 340(3)(West Supp. 1994).  The statute of limitations for property damage claims is three years.  Cal. Civ. Proc. Code § 338(b) (West Supp. 1994).  The limitations period generally begins when the cause of action accrues, i.e., the wrongful act takes place.  G.D. Searle & Co. v. Superior Court, 49 Cal. App. 3d 22 (1975); Leaf v. City of San Mateo, 104 Cal. App. 3d 398 (1980).  In the environmental and toxic tort area, the releases of hazardous substances often occurred many years ago.  Thus, defendants frequently attempt to assert statute of limitations defenses to such claims.  Plaintiffs have looked at several ways to overcome statute of limitations defenses. 

D. 

E.         Where plaintiffs claim personal injury, the most frequent way they try to overcome a statute of limitations defense is by arguing for application of the "discovery rule."  Under that rule, a plaintiff's "cause of action does not accrue until the plaintiff knows, or should know, all material facts es­sential to show the elements of that cause of action."  Neel v. Magana, Olney, Lev, Cathcart & Gelfand, 6 Cal. 3d 176 (1971).  It is plaintiff's burden to plead the date of discovery and why it was not possible to discover the cause of action prior to that date.  The plaintiff must show he or she has used due diligence to discover his or her cause of action. Pereira v. Dow Chemi­cal Co., Inc., 129 Cal. App. 3d 865, 874 (1982)

F. 

G.         In Pereira, the court held that the plaintiff's cause of action ac­crued when he learned that toxic exposure caused his injuries, not when he discovered that he was injured.  Id. at 874-75.  As a result, the plain­tiff was able to maintain his action against the defendant more than two years after the toxic exposure that caused his injuries.

H. 

I.          Statute of limitations problems are particularly troublesome to plaintiffs in cases involving disposals of toxic chemicals which occurred many years ago and which caused the plaintiffs to incur property damages.  In those cases, defendants assert that the limitations period began to run when the disposals took place and the property was damaged and, therefore, that the limitations period has expired.  Plaintiffs have tried a variety of theories to circumvent this problem, with mixed success.

J. 

K.         First, plaintiffs have argued that although the contamination was placed in the ground many years ago, they did not sustain any injury, and hence the statute did not begin to run, until they tried to sell the property without success or incurred costs to abate the nuisance.  The Mangini I court, however, rejected this argument and held that the injury had been sustained many years earlier, when the contamination had occurred.  Mangini I, 230 Cal. App. 3d at 1150.  Similarly, in CAMSI IV v. Hunter Technology Corp., 230 Cal. App. 3d 1525, 1534 (1991), the court rejected this argument and held that the harm was "to the property itself, and thus to any owner of the property once the property has been injured and not necessarily to a particular owner." 

L. 

M.        Second, plaintiffs have argued that the discovery rule should apply.  Under this rule, a cause of action accrues when "`plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence.'" Leaf, 104 Cal. App. 3d at 407 (emphasis omitted).  Plaintiffs have argued that the statute of limitations did not begin to run until they discovered the contamination even though discovery was many years after the disposal occurred.  In Tourist Village Motel, Inc. v. Massachusetts Engineering Co., Inc., 801 F. Supp. 903, 905 (D.N.H. 1992), plaintiff brought an action against a tank manufacturer nine years after the tank was installed, but only a few years after a leak was detected.  The court, applying New Hampshire law, held the discovery rule applied and that "it does not appear beyond doubt that the plaintiff, using due diligence, should have discovered a leak occurring from an underground storage tank."  Accordingly, it refused to dismiss the claim on statute of limitations grounds.

N. 

O.         Although the discovery rule appears to be a way to overcome the statute of limitations problem, most California courts that have addressed the issue have found that the plaintiffs failed to establish that they filed their claims within the statutory period even if the discovery rule applied.  For example, in Mangini I, supra, the court held that plaintiffs had sufficient notice of the claims more than three years before the initial complaint had been filed.  See also CAMSI IV, 230 Cal. App. 3d at 1536; Mortkowitz v. Texaco, Inc., 842 F. Supp. 1232 (N.D.Cal. 1994).

P. 

Q.         Third, plaintiffs may be able to avoid statute of limitations problems by bringing contribution or equitable indemnity claims, since it is generally recognized that the statute of limitations on such claims does not begin to run until the party seeking indemnity or contribution has suffered loss or damages (i.e. paid the claim).  See, e.g., People ex rel Dep't of Transp. v. Superior Court, 26 Cal. 3d 744 (1980).

R. 

S.         Fourth, plaintiffs have attempted to avoid the statute of limitations by pleading the existence of a continuing nuisance, in which case the statute of limita­tions cannot have run because the injury is ongoing.  A permanent nuisance is one that is of such a character that it will presumably continue indefinitely.  In such a case, the limitations period runs from the time it is created. Phillips v. City of Pasadena, 27 Cal. 2d 104, 107 (1945).  However, a "continuing" nuisance is one which may be discontinued at any time and "persons harmed by it may bring successive actions for damages until the nuisance is abated."  Baker v. Burbank-Glendale-Pasadena Airport Auth., 39 Cal. 3d 862, 869 (1985), cert. denied, 475 U.S. 1017 (1986).

T. 

U.         Thus, the Mangini I court held that since plaintiff pled that the chemical pollution on its property was abatable, it could amend its complaint to allege a continuing nuisance.  The court noted that plaintiff's land could be subject to a continuing nuisance even though defendant's offensive conduct ended years ago because the "`continuing' nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur."  Mangini I, 230 Cal. App. 3d at 1147.  The court concluded that "plaintiffs should be allowed to amend their complaint to state their proposed facts so as to aver a theory of continuing nuisance and to seek damages caused them within three years of the date of filing the complaint."  Id.

V. 

W.        Numerous other courts have allowed continuing nuisance claims under similar circumstances.  See KFC Western, Inc. v. Meghrig, 23 Cal. App. 4th 1167 (1994); Mortkowitz v. Texaco Inc. 842 F. Supp. 1232 (N.D. Cal. 1994); Arcade Water Dist. v. United States, 940 F. 2d 1265 (9th Cir. 1991); Wilshire Westwood Assoc. v. Atlantic Richfield Co., 20 Cal. App. 4th 732 (1993).  Thus, plaintiffs may be able to overcome the statute of limitations problem by alleging a continuing nuisance or trespass.  But see Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283, 292 (N.D. Cal. 1984) (under California law, the mere existence of abatable nuisance does not toll the statute indefinitely, and where defendant had last disposed of wastes years before, the statute of limitations had run).  However, this case was decided well before Mangini I and its progeny and may no longer be viable law in California. 

X.         In order for a nuisance to be "continuing," it must be abatable.  In Capogeannis v. Superior Court, 12 Cal. App. 4th 668, 682 (1993), the defendants argued that a nuisance caused by leaching hazardous waste was permanent because it could never be completely remediated.  The court rejected this argument and noted that, although the contamination could never be completely removed, public agencies had established cleanup levels for the site.  It reasoned that "cleanup standards set by responsible public agencies sufficiently reflect expert appraisal of the best that can be done to abate contamination in particular cases.  As judges we will not presume to insist upon absolutes these agencies do not require."  Id. at 683.  Thus, it held that plaintiff could prevail on a claim for continuing nuisance even if the contamination could not be completely eliminated.  See also Mangini v. Aeroget-General Corporation, 26 Cal. App. 4th 760 (1994) ("Mangini II").

Y. 

Z.         Nevertheless, proving that the nuisance is continuing, rather than permanent, may be difficult.  After the court ruled in Mangini I, the plaintiff amended the Complaint to allege a continuing nuisance and, at trial, the jury ruled in favor of the plaintiff.  However, the defendant appealed, arguing that the plaintiff had failed to show substantial evidence of a continuing nuisance.  The appellate court agreed.  In Mangini v. Aerojet-General Corporation ("Mangini II") 26 Cal. App. 4th 760 (1994), the court held that it was plaintiff's burden to establish that the nuisance was continuing, i.e., that it was abatable.  The court held that "`abatable' means reasonably abatable" and that among the factors that must be considered in determining whether a nuisance is reasonably abatable is cost.  Thus, the court held that "`abatable' means that the nuisance can be remedied at a reasonable cost by reasonable means."  Since plaintiff admitted that there was insufficient evidence to show the extent of contamination and that there was no evidence to show how much abatement would cost, the court held that plaintiff failed to establish that the nuisance was abatable.

AA. 

BB.       The "reasonably abatable" standard set out by the court creates a significant obstacle for plaintiffs.  Determining the nature and extent of contamination at a site can take years of investigation and study and it can take even longer to decide on an appropriate remedy.  Thus, plaintiffs may not have enough information to decide if a nuisance is continuing or permanent and many plaintiffs may not have the resources to hire the experts that may be required to meet this burden.  Moreover, requiring plaintiffs to prove that a nuisance is abatable could put plaintiffs in an untenable position.  If they claim a continuing nuisance, they may not be able to meet the difficult burden of proof.  However, if they claim a permanent nuisance, they may be unable to obtain injunctive relief and, in some cases, may be barred by the statute of limitations.  The Supreme Court recently granted review of this decision.

CC. 

DD. Contributory Negligence/Comparative Negligence

EE. 

FF.       Another defense asserted by defendants is contributory or comparative negligence.  Where plaintiffs claim that they have sustained injuries as a result of toxic exposures, defendants look to determine whether there is any conduct on the part of the plaintiff which may have contributed to the alleged injury. 

GG. 

HH.       For example, in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993), Firestone argued that some of the plaintiffs were smokers and that their smoking exposed them to some of the same toxic substances to which the plaintiffs claimed they were exposed by the defendant.  The court held that comparative negligence principles applied to toxic tort claims of fear of cancer, that some of plaintiffs' fease could have stemmed from their smoking and that defendants could claim this as an affirmative defense.  How­ever, the Potter court declined to actually apply comparative negligence principles to the Potter case because Firestone failed to establish a link between the plaintiffs' smoking and their fear of cancer.

II. 

JJ.        In Dafler v. Raymark Industries, Inc., 611 A.2d 136 (N.J. Super. 1992), however, an asbestos exposure case, a New Jersey appellate court upheld a jury finding that the plaintiff was 70% responsible for his lung cancer because he was a life-long smoker.  The court held that it was reasonable for the jury to apportion liability based on the expert testi­mony that smoking was twice as likely to cause lung cancer as exposure to asbestos in a naval shipyard.  The court found the jury's decision to apportion liability was consistent with state law on comparative negligence and with Section 433A of the Restatement (Second) of Torts.  The court did limit the application of comparative negligence in asbestos exposure cases by requiring a reasonable basis upon which to apportion liability.  In Dafler, the reasonable basis was expert testimony regarding the likelihood of contracting lung cancer from different sources. 

KK. 

LL.Workers' Compensation Bar

MM. 

NN.       Under California worker's compensation law, workers' compensation is an exclusive remedy.  Cal. Labor Code § 3602.  Similar laws exist in most other states.  See Acevedo v. Consolidated Edison Co. of New York, Inc., 189 A.D.2d 497, (applying exclusivity provision of Workers' Compensation Law § 11).  Thus, unless certain enumerated exceptions apply, a plaintiff who was exposed to toxic substances in the course of employment can not bring suit against his or her employer for injuries stemming from the exposure.  Santiago v. Firestone Tire & Rubber Co., 224 Cal. App. 3d 1318, (1992). 

OO. 

PP.       The enumerated exceptions include willful physical assault, Cal. Labor Code §3602(b)(1) and aggravation of injury due to fraudulent concealment.  Cal. Labor Code §3602(b)(2).  The former is unlikely to be a significant issue in environmental and toxic tort cases, while the latter can be an issue.  In Barth v. Firestone Tire & Rubber Co., 661 F. Supp. 193, 202 (N.D. Cal. 1987), plaintiff argued that his claim fell within the first exception by arguing that Firestone assaulted him by compelling him to come into contact with toxic substances without his consent.  The court held that since Firestone's acts were not taken for the purpose of injuring the employee they did not fall within the exception.  See also Johns-Manville Products Corp. v. Superior Court, 27 Cal. 3d 465, 476 (1980).

QQ. 

RR.       Plaintiffs have, on the other hand, been able to use the second exception to circumvent the workers' compensation bar.  In the Barth case, the plaintiff also alleged that its injury was aggravated as a result of fraudulent concealment.  The court held that this allegation fit with the exception codified in §3602(b)(2) and allowed the plaintiff employee to maintain an action for damages resulting from the fraudulent concealment against the employer.  Barth, 661 F. Supp at 204.  In Johns-Manville, the court found that the defendant knew asbestos ingestion could cause the plaintiff's condition.  Thus, by concealing that fact, defendant prevented the plaintiff from receiving proper treatment for the disease and the plaintiff continued to work under hazardous conditions which exacerbated the disease Johns-Manville, 27 Cal. 3d at 477.  See also Lopez v. Continental Can Co., Inc., 961 F.2d 147 (9th Cir. 1992)(applying California law and holding that plaintiff could maintain fraudulent concealment claim where she claimed her injuries were aggravated by her employer's fraudulent concealment of the cause of her illness.)

SS. 

TT.        In order to fall within the fraudulent concealment exception, the plaintiff must prove that the defendant knew of the existence of the injury and fraudulently concealed it, thereby aggravating the harm to the employee.  In Santiago, plaintiffs alleged that Firestone knew their leukemia was caused by exposure to benzene in the workplace, but fraudulently concealed this fact from them.  The appellate court affirmed a jury's verdict for Firestone because plaintiffs failed to show Firestone had "actual knowledge" of the plaintiffs' injuries.  The court cited an arsenic exposure case, Foster v. Xerox Corp., 40 Cal. 3d 306 (1985), and held that plaintiffs trying to avoid the exclusivity provisions of section 3602 must prove the defendant had actual knowledge of the employees' injuries and the risk due to exposure.  See also Davis v. Lockheed Corp., 13 Cal. App. 4th 519 (1993)(defendant lacked actual knowledge of the connection between the plaintiff's injury and the workplace).

UU. 

VV. 

II.  CASE MANAGEMENT

            Case management is a short-hand descriptive for techniques designed to streamline complex litigation, eliminate unnecessary motions practice and discovery, expedite resolution, and reduce attorneys' and experts' fees and other transaction costs.  Whether the case involves toxic torts or Superfund cost recovery actions, the conventional litigation process is inherently inefficient and cost ineffective.  In most instances, judges and lawyers have failed to develop creative methods to resolve these disputes.  This brief discussion focuses on practical methods for helping courts and lawyers get control of toxic tort cases and managing them in a fair, efficient, and cost effective manner.

A. What to Do Before You File Suit

B. 

C.         Time spent thinking about your case before you file suit (if you are a plaintiff) or responding (if you are a defendant) will repay itself many fold.  There is no such thing as a "standard toxic tort" case.  Every case presents unique circumstances that must be taken into account in fashioning a winning (and affordable) strategy.  While there are common legal issues, a suit predicated on short-term exposure to contaminated drinking water presents different factual and legal considerations than one alleging long-term exposure to airborne carcinogens,

D. 

E.         For successful case management, the single most important task is to define the client's goals.  For example, if the client is a plaintiff allegedly injured by air pollution in an industrial area, the client should be given advice about theories for recovery, legal and factual impediments, and a realistic assessment of the likely range of damages if liability is found.  If the client has an unrealistically high expectation of the damages that she will recover, the attorney, opposing counsel, and the court will spend unnecessary and avoidable time in processing a case that might have been settled early.

F.         Similarly, if a defendant is sued for a toxic tort and is alleged to have caused property damage to residents living near its plant, it is fanciful to believe that the plaintiff will not be able to state at least one theory of liability that will survive a demurrer.  The defendant will be much better off focusing with counsel at the outset about such considerations as containing the spread of the litigation to other residents, alternative dispute resolution ("ADR"), minimizing negative publicity, and getting its insurers to participate in the defense and settlement.

G. 

H.         Effective assistance of counsel requires a sober-minded assessment of a client's case.  Counsel performs a vital function in getting the client to be realistic at the very beginning of the process.  Managing a client's expectations will save hundreds of hours and thousands of dollars--time and money that can be better used for the likely settlement or defraying litigation costs.

I. 

J.          The discovery process will necessarily be influenced by this threshold goal-setting.  A Plaintiff who has focused on getting a property damage recovery and not pressing a speculative "fear of cancer" claim will have significantly-reduced discovery requests and will be subjected to much less burdensome discovery from the defendant(s).  A shrewd plaintiff's counsel might offer to trade dropping a punitive damage claim for an expedited ADR process.  A wise defendant might agree, subject to an agreement that the proceedings will be kept strictly confidential.  Both parties have substantially furthered their goals at the very outset of the case.  Costs will be reduced, and the chances of settlement will be enhanced.

K. 

L.         Judges can play an instrumental role by requiring the parties to meet with the court before any responsive pleadings or discovery.  Within a very short time of service of the complaint, the court should force the parties to discuss settlement, ADR, streamlined discovery, case management, and an early trial date.  While fast track procedures have insinuated the court earlier in the litigation process, the parties are still allowed to begin litigating in the conventional (and inefficient) manner without any thought being given to the necessity or advisability of full blown litigation.

M. 

N.         The courts should take responsibility for controlling the waste and inefficiencies of toxic tort litigation by firmly planting themselves at the courtroom door before the process begins spinning out of control.  The court must be tough-minded.  A presumption against litigation-a-usual would vastly improve the chances of achieving fair, efficient, and cost-effective dispute resolution.  There is no reason that a case management order cannot be issued as a result of this first meeting of the parties and court.  (The use of case management orders is discussed in more detail below.)

O. 

P.         Similarly, the early appointment of a mediator or settlement referee in a complex toxic tort case can significantly accelerate meaningful settlement negotiations.  As part of its case management order, a court should consider staying all proceedings for at least six months and require the parties to pursue ADR.  This is actually being done in a massive lawsuit in federal court in Los Angeles involving an industrial plaintiff suing 110 PRPs in a Superfund cost recovery action.  All the parties' time is being devoted to developing an acceptable formula for allocation of costs, and all normal litigation activities have been prohibited.

Q. 

1.         Learn the case

2.         Absent a looming statute of limitations deadline, lawyers are well advised to devote substantial resources to investigating the case before filing a complaint.  This includes reviewing all relevant documents, hiring private investigators, interviewing all key witnesses, securing experts, and researching any critical legal issues.  It is not too early to begin preparing a trial notebook. (See discussion below.)

3. 

4.         If the case will be tried to a jury, it is helpful to prepare the critical jury instructions at the very outset.  This helps counsel focus on the elements of the causes of action and any affirmative defenses that she might have to overcome.  For a plaintiff, special attention should be given to the legal standards for causation and damages because they are typically the most troublesome elements for plaintiffs.

5. 

6.         By the same token, defendants who are contemplating a demurrer or drafting an answer should be completely familiar with the elements of the plaintiff's claims and any possible affirmative defenses.  Defendants should think twice about demurring prematurely.  Not only does it educate the plaintiff about weaknesses in her case, but the defendant might have a better shot at persuading the court after the relevant discovery has been taken.

7. 

8.         Defense counsel should also collect as many key documents and interview as many key witnesses as possible before responding.  This is often difficult when representing a large corporate client whose business activities over many years may be at issue.  Nevertheless, a sensible plaintiff's counsel is likely to grant a reasonable continuance if she is told that defense counsel wants to learn more about the case.  Experience shows that an informed opponent is more likely to agree to early settlement talks or ADR.

9. 

10.        A firm judicial hand early in the game is essential.  At the first meeting of court and counsel, the trial judge should take the time to review the complaint to discuss which claims are likely to survive demurrer and to focus the parties on what discovery is essential on the viable claims.  Likewise, if an answer has been filed, the court should critically scrutinize any affirmative defenses for the same purpose.  District Judge Barry Hupp in the Central District of California follows this practice, and it is a very effective way to eliminate posturing and winnow out marginal claims and defenses.

11. 

12.        Strategies to avoid litigation

13. 

14.        Conventional wisdom holds that it is in a defendant's best interest to try to grind down the plaintiff's counsel with a barrage of demurrers, motions, and written and oral discovery. According to this thinking, the plaintiff's lawyer is on a contingency, and she cannot afford to invest too much time in the case.  So, the theory goes, if you punish her early, she will settle cheaply her otherwise meritorious claims.

15. 

16.        The problem with this approach is that it is usually unsuccessful, especially in toxic tort litigation.  First, these cases are often filed by experienced, well-financed plaintiff's law firms who have staying power.  Second, the better plaintiff's lawyers handle these cases because they require a greater degree of sophistication than routine personal injury claims.  Third, no respectable plaintiff's lawyer is going to settle cheaply a claim where the defendant has exposure and there is a prospect of punitive damages.  Finally, abusive pretrial tactics by defense counsel often raises the ante, costing the client not only more in transaction costs but in ultimate settlement payout.

17. 

18.        In truth, both the plaintiff and defendant had a common interest in avoiding lengthy and expensive litigation.  The plaintiff wants to be paid as quickly as possible, and plaintiff's lawyer wants to maximize her bang for the time investment.  Likewise, the defendant wants to save defense costs, particularly if the issue is not whether but how much will be paid in settlement.  In some cases, it is more prudent for a defendant to allocate legal fees to disproving unmeritorious damage claims than to disputing whether it polluted the soil, water, or air.  For a large corporate defendant, focusing on causation and injury also helps deflect attention from more sometimes troublesome issues like liability and intent.

19. 

20.        There are numerous proven strategies for avoiding litigation.  One of the best approaches is for a plaintiff to show her cards early in the process, often before suit is filed.   Sending a detailed draft complaint to a defendant, particularly a public company with sensitive environmental liability reporting requirements, frequently captures the defendant's attention and can significantly advance the time when settlement talks might otherwise occur.  In one recent Superfund cost recovery case, before a complaint was filed, a large corporate plaintiff treated the defendants to detailed presentation, replete with computer graphics on a big screen television, a fully-developed "fair share" cost allocation formula, and a recommended dollar amount for each defendant.  In another case, plaintiffs' counsel representing several hundred residents furnished the draft complaint to the defendant, including the plaintiffs' addresses.  In still another toxic tort case, the plaintiff furnished the defendant with 50 damaging documents and exhibits, and the case settled in a matter of weeks.

21. 

22.        Early informal discussions between the sides can often lead to an agreement to pursue ADR.  Once the parties agree to opt out of the conventional litigation process, they are free to write their own rules on how the dispute should be resolved.  The emphasis should be on making both sides believe that they will have a fair chance to establish their claims and defenses.  Here, perception is especially important because ADR is new to many litigants.

23. 

24.        Some toxic tort cases are really about whether any plaintiffs truly have meritorious damages claims.  Defendants should consider stipulating to liability for settlement purposes only and developing a system for evaluating the plaintiffs' damage claims.  This can be done by the appointment of neutral experts (for example, toxicologists, oncologists, and/or epidemiologists) or the establishment of a claims fund subject to individual proof at hearings before a mutually-selected arbitrator or referee.  (The use of questionnaires in lieu of formal discovery is discussed below.)

25. 

R. How to Organize Your Case

S. 

T.         A case should be organized with one thought in mind--it might actually go to trial, arbitration, or mediation some day.  How a lawyer handles document production, numbering and control provides an insight into how thoughtfully she has planned her strategy.  By the same token, the witnesses who are chosen for deposition--especially if there is some selectivity--is a road map to a good lawyer's thinking.  The lawyer who believes more is better is often the lawyer who is still searching for a theme the night before closing argument.

U. 

1.         Documents, Depositions, and Computers

2. 

3.         Documents should be numbered in a way to minimize confusion when they are later identified in a deposition or court.  Codes that identify the source of the document will avoid later disputes about who produced it.  In a complex case with thousands of documents, the parties should agree upon a technology for coding and storing documents.  While a set of hard copies should be maintained, the rapidly decreasing cost of imaging documents on CD-ROM makes affordable this efficient and expeditious form of document retrieval.  Courts where complex cases are tried are already being retrofitted to include monitors for displaying documents kept on CD-ROM.

4. 

5.         Documents should also be coded by counsel as they relate to witnesses and to causes of action or affirmative defenses.

6. 

7.         Depositions should be preserved in both hard copy and ASCII disk formats.  There are several excellent computer programs that allow all the depositions to be stored in a computer and to be easily accessed during depositions, hearings, or trial.  At trial, the entire case--depositions, witness outlines, key documents, and graphics--can all be stored in a laptop portable computer.  The days of lugging dozens of boxes to court are numbered.

8. 

9.         Trial notebooks

10. 

11.        The very first day when a case comes into the office should mark the creation of a trial notebook.  Every day thereafter, the lawyer should build the trial notebook, adding important information, pleadings, notes, and documents as the case progresses.  By the time of the trial or settlement conference, the lawyer will be ready for trial because she has been preparing every day.

12. 

13.        Trial notebooks can take two forms:  hard copy and computer.  Increasingly, lawyers are turning to the electronic trial notebook, and several good software packages are now available.  Whichever form is used, the trial notebook should be the place where a lawyer constantly turns to add his thoughts about a witness, summary judgment motion, evidence pertaining to each element of the cause of action and affirmative defenses, or closing argument.  In essence, the trial notebook is a work in progress that mirrors the lawyer's maturing thoughts about her case.

14. 

15.        Organizing the litigation team

16. 

17.        A complex toxic tort case should not be a license for throwing a lot of lawyers at the problem.  Why should the defendant have two or three or four times as many lawyers as the plaintiff?  Too often, overstaffing the defense is a sure sign that the lead counsel and client have not developed a coherent case strategy.

18. 

19.        The "lean and mean" staffing approach best serves the client.  The small team of lawyers and paralegals can handle almost any size litigation.  Few cases should require more than a lead counsel plus two or three other lawyers.  The use of well trained paralegals can not only save a lot of money but also get better results because young lawyers understandably dislike doing what are essentially clerical tasks (such as initial document review and coding and first cuts of document production).  On the other hand, experienced paralegals are highly-motivated to do a good job and take pride in their work.

20. 

21.        Fewer lawyers is also better in terms of the quality of the critical thinking that informs a case during its lifetime.  One veteran environmental and toxic tort litigator in Los Angeles assigns responsibilities for a case based on a horizontal (as opposed to typical vertical) pattern.  For example, if his client is the plaintiff and suing 40 defendants, he assigns each of three junior lawyers of varying experience cradle-to-grave responsibility for a certain number of the defendants.  Likewise, if he is defending, he assigns his lawyers certain plaintiffs.  This approach is much more efficient than the conventional staffing pattern of a first year associate reporting to a mid-level associate who reports to a junior partner who reports to the lead trial partner.  Moreover, bright young lawyers relish getting front-line experience, including taking and defending depositions and handling settlement negotiations for their assigned defendants.  They are challenged, and the results are often impressive.

22. 

V. Use of Case Management Orders

W. 

            Case management orders are increasingly common in complex litigation and both plaintiffs and defendants have an interest in seeking case management orders which maximize their ability to present their cases.  Courts have broad authority to issue such orders.  See, e.g., Cal. Civ. Proc. Code §128(a)(8) and Cal. Govt. Code §68070.  In many instances, they are issued after all defendants have been served, and they are drafted by the attorneys, with the judge resolving disputes as to procedures or deadlines.  Judges view these orders as the best way to get control of a complex case and assure that it proceeds in an orderly way.  Some judges do not allow any activity in the case until all the pretrial procedures and time periods are settled.

            Case management orders routinely specify dates for demurrers or motions to dismiss, document production, percipient witness depositions, expert discovery, dispositive motions, pretrial conference, mandatory settlement conference, and trial.  For the lawyers, they are a blessing because it allows them to block out critical times a year or two in advance.  For a busy court, the case management order conserves judicial time and allows adequate time to deal with important issues as they arise in the case.

            Increasingly, the orders pro-designate a retired judge to act as discovery referee, and an appeal to the trial judge is almost always available.  This provision is both good and bad.  It is good in the sense that discovery disputes can be expeditiously resolved.  It is bad to the extent that lawyers abuse the availability of the discovery referee.

            Unfortunately, too little attention is paid to using the case management order to promote ADR and early settlement.  As suggested in Section V.A. above, judges should use the case management order and the first meeting of court and counsel as an occasion to explore early resolution of the case.  Suspension of litigation in order to pursue settlement should be the rule and not the exception.

            At the threshold, the court should also consider another labor-saving device: bifurcation or trifurcation of the case.  Typically, bifurcation involves liability and damages.  Some courts have trifurcated cases, adding an intermediate  stage for causation issues.  If liability is not established, considerable time and money spent on discovery issues relating to causation and damages will be saved.

            In toxic tort cases, one of the most difficult problems for plaintiffs is to establish that they were, in fact, exposed and that the exposures caused their injuries.  One strategy commonly attempted by defendants is to seek a case management order which requires require plaintiffs to prove exposure and causation before allowing them to proceed to trial.  It appears clear that courts have authority to issue such orders.  Cottle v. Superior Court, 3 Cal.App.4th 1367 (1992), involved a suit by over 175 plaintiffs against developers of a residential subdivision for failing to disclose that the oil industry had formerly used the site as a dumping ground for hazardous wastes.  Early on in the case, the court determined the lawsuit to be a complex litigation case and issued a case management order in which it required each plaintiff to serve a statement establishing a prima facie claim for personal injury and/or property damage.  The order required that for personal injury claims, "each plaintiff shall state the chemical or toxic substance to which that plaintiff was exposed; the date or dates and place of exposure; the method of exposure; the nature of plaintiff's injury; and the identity of each medical expert who will support the plaintiff's personal injury claim."  Id. at 1373.  The defendants moved to dismiss plaintiffs' claims for failure to make the court-ordered prima facie showing.  The trial court found that  the plaintiffs failed to present any witnesses who could testify "that any hazardous or toxic substance has, to a reasonable medical probability, a certainty or anything beyond the most tenuous possibility caused any illness in any plaintiff or injured or exacerbated any injury."  Id. at 1375.  It issued a final order excluding evidence of personal injury.  The appellate court upheld the court's authority to issue the case management order and to exclude evidence on this basis.  In addition, the appellate court required causation to be based upon expert medical testimony rather than the totality of the circumstances absent this testimony.  Id. at 1385.  Thus, it appears clear that courts have authority to issue case management orders which can have significant impact on how the case proceeds as well as on the ultimate outcome.  Plaintiffs and defendants should carefully consider the type of case management order which best suits their needs. 

            We are dealing with old habits, and they die slowly.  Without the court actively insisting upon the parties thinking about settlement at the very outset of the case, the normal litigation process will take control, sending the parties on a spending frenzy, only to return to court two years later no wiser but poorer, and in the end, settling the case.  Given the high percentage of complex cases that are settled and never tried, courts and the bar should stop looking at these matters through the wrong end of the telescope.

A.                 Use of Questionnaires in Lieu of Formal Discovery

            Toxic tort cases typically involve dozens or hundreds of individually-named plaintiffs and sometimes dozens of defendants.  (One case involving the Operating Industries, Inc. landfill in Monterey Park involves over 100 plaintiffs and 150 defendants.)  The time period often stretches over decades.  And the alleged injuries range from public nuisance to property damage to cancer.

            Conventional discovery in such a case--document requests, interrogatories, and depositions alone--will take years and cost millions of dollars in attorney time and expenses.  Worse yet, millions more will be spent by the corporate defendants in in-house management time devoted to responding to interrogatories, locating and producing old business records, identifying and preparing former and present employees for depositions, and coordinating the activities of litigation counsel.  Compounding the defense costs will be the time spent preparing joint defense agreements and coordinating the defense steering committee.

            If the parties could find a substitute for depositions and interrogatories, they would radically reduce the time and expense of pretrial discovery.  One excellent device is the verified questionnaire in lieu of formal discovery.  For example, the defendant prepares a detailed questionnaire for the plaintiffs to fill out and sign under penalty of perjury.  The plaintiff- oriented questionnaire will focus on issues primarily relating to causation and injury.  Thus, the plaintiff claiming diminution of property value will disclose when he bought his house, the price, improvements, and attempts to sell.

            Similarly, the plaintiff can serve a questionnaire on the defendant with detailed inquiries focusing primarily on liability and intent.  The response, also under penalty of perjury, can be based on defense interviews with key witnesses, review of relevant documents, and consultation with expert witnesses.

            These questionnaires can be computer coded to facilitate analysis and quick access.  The parties can use the responses to set parameters for settlement negotiations.  Only if they fail to settle after diligent efforts should they be allowed to resort to traditional formal discovery. 

I.  HOT LITIGATION AREAS

A.                  Hazardous Waste Sites, Underground Storage Tanks

            (UST) and Contaminated Groundwater

            Numerous cases have been brought in recent years by plaintiffs alleging that they have been injured as a result of toxic wastes emitted from hazardous waste disposal sites and underground storage tanks.  These cases often include allegations that the releases contaminated groundwater which has migrated onto plaintiff's property.  Plaintiffs generally bring a variety of claims including claims for personal injury as a result of exposure to the toxic chemicals, emotional distress, medical monitoring costs and for property damage including reduction in property value, costs to remediate and stigma damages.  Claims are generally brought under the variety of the common law theories discussed above including negligence, nuisance, strict liability, trespass etc.  Since these causes of action are discussed in some detail above, they are not discussed again here.  However, in addition, claims have been brought under several statutory theories.

1.         CERCLA Claims

2.         Plaintiffs whose property require remediation often bring claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §9601 et seq. to recover their remedial costs.  CERCLA can be a potent tool for plaintiffs because it is generally construed to impose strict, joint and several liability for response costs upon four classes of persons ("PRPs"):  (1) current owners and operators of facilities; (2) owners and operators of facilities at the time of disposal of hazardous substances; (3) generators of hazardous substances who arranged for the disposal of such substances; and (4) transporters of hazardous substances.

3. 

4.         However, CERCLA has at least two significant limitations which affect a landowner's ability to obtain relief.  First, CERCLA only allows recovery for responding to problems caused by releases of "hazardous substances."  The term "hazardous substances" specifically excludes "petroleum, including crude oil or any fraction thereof. . . ."  Thus, as a general matter, CERCLA does not apply to petroleum products including gasoline and diesel fuel, the primary contaminants associated with leaking underground storage tanks ("USTs").  See, e.g., Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F. 2d 801 (9th Cir. 1989), and Niecko v. Emro Marketing Co., 769 F. Supp. 973, 981, 982 (E.D. Mich. 1991), aff'd, 973 F. 2d. 1296 (6th Cir. 1992).  Note, however, that the exclusion probably does not apply to oil which has become contaminated with hazardous substances not naturally found in the petroleum product.  See, e.g., Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1384 (E.D. Cal. 1991) (waste oil containing CERCLA hazardous substances does not fall under the petroleum exclusion); and State of Wash. v. Time Oil Co., 687 F. Supp. 529, 532 (W.D. Wash. 1988) (tank bottom sludge containing contaminants not indigenous to crude oil not subject to exclusion).   

5. 

6.         Second, while CERCLA allows recovery of costs of response, removal and remedial work, it does not permit recovery of other forms of damages such as loss of value and economic damages.  See, e.g., Regan v. Cherry Corp., 706 F. Supp. 145, 151 (D.R.I. 1989), and Artesian Water Co. v. Gov. of New Castle County, 659 F. Supp. 1269, 1285-86 (D. Del. 1987), aff'd, 851 F. 2d 643 (3d Cir. 1988).  Therefore, although a landowner who owns contaminated property may incur significant losses in value, loss of rents or other damages as a result of the contamination, CERCLA offers no basis for recovery of these damages.

7. 

8.         Because of these limitations, plaintiffs often turn to the common law causes of action discussed above.  As tort claims, they arguably offer the opportunity to overcome some of the deficiencies in CERCLA.  First, these actions allow recovery for any harm proximately caused thereby.  See Cal. Civ. Code §3333 (West 1970) and discussion supra.  Therefore, a party may attempt to seek reimbursement for (1) costs expended to abate the problem, (2) lost profits, and (3) punitive damages.  Second,  there is no "pollution exclusion" under any of these actions.  Therefore, there is no bar to seeking relief for contamination caused by petroleum products.

9. 

10.        California Hazardous Substance Account Act

11. 

12.        Plaintiffs have also brought claims under the California Hazardous Substance Account Act.  Cal. Health & Safety Code §25300 et seq. The liability provisions of this act are  virtually identical to CERCLA and, like CERCLA, it contains a petroleum exclusion.  See KFC Western Inc. v. Meghrig, 23 Cal. App. 4th 1167 (1994); Ulvestad v. Chevron U.S.A., Inc., 818 F. Supp. 292 (C.D. Cal. 1993).

13. 

14.        Resource Conservation Recovery Act

15. 

16.        Under Section 7002 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §6972, "any person" may commence a civil action to "enforce [a] permit, standard, regulation, condition, requirement, prohibition or order":

17. 

(1)(A)  against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, require­ment, prohibition, or order which has become effective pursuant to this chapter; or for an injunction or other appropriate relief

(B)  against any person, . . . including any past or present generator . . ., or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. . . .

            Under these so-called "citizen suit" provisions, a party may bring an injunctive action against a current operator of a facility who is in violation of certain legal requirements to cease the unlawful activities.  See, e.g., Westfarm Assoc. Ltd. Partnership v. International Fabricare Inst., 846 F. Supp. 422 (D. Md., 1993)(upholding RCRA claim for failure to comply with applicable regulations).  Note, however, that a claim under section 7002(a)(1)(A) of RCRA may not be alleged for a wholly past violation.  See Connecticut Coastal Fishermen's Association v. Remington Arms Co., Inc., et al., 989 F. 2d 1305 (2nd Cir. 1993).  Note also that where the state has an EPA-authorized hazardous waste program, a plaintiff may be precluded from bringing claims under section 7002(a)(1)(A) of RCRA.  See, e.g., Dague v. City of Burlington, 935 F. 2d 1343, 1353 (2nd Cir. 1991).  But see Lutz v. Chromatex, Inc., 725 F. Supp. 258, 261 (holding that claims to enforce superseded federal regulations were not permitted, but claims to enforce approved state provisions are permitted).

            In addition, a party may bring an injunctive action against former generators, owners or operators who handled or disposed of wastes which may present an imminent and substantial endangerment.  While courts agree that "injunctive relief should not be granted `where the risk of harm is remote in time, completely speculative in nature, or de minimis in degree.'  United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100, 1109 (D. Minn. 1982) (additional citations omitted), as a general matter, the phrase "may present an imminent and substantial endangerment" has been construed broadly, and has not been limited to emergency situations.  See Lincoln Properties v. Higgins, 36 Env't. Rep. Cus. (BNA) 1228, 23 Envtl.L.Rep. (Envtl.L.Inst.) 20, 665 (E.D. Cal. 1993)(hereinafter referred to as Lincoln Properties, 23 ELR 20,665); Dague v. City of Burlington, 935 F. 2d 1343, 1356 (2d Cir. 1982).  

            Liability under RCRA is generally considered to be strict and joint and several.  Zands v. Nelson, 797 F. Supp. 805, 809 (S.D. Cal. 1992); United States v. Conservation Chem. Co., 619 F. Supp. 162, 199 (W.D. Mo. 1985); Lincoln Properties, 23 ELR 20,665.  Moreover, at least one court has held that a plaintiff who currently owns the property and who sued all persons who owned the property or operated the gas station need only prove that the contamination occurred prior to his owner­ship.  At that point, the burden of proof shifts to the defendant to show that no contamination occurred while it owned or used the property. Zands, 797 F. Supp. at 809. 

            These provisions have several potentially important advantages for plaintiffs over CERCLA.  First, there is no specific petroleum exclusion under RCRA.  RCRA applies to a broader range of substances including "solid wastes" as defined in section 1004(27) of RCRA in addition to "hazardous wastes."  Therefore, these provisions may be particularly helpful when dealing with leaking underground petroleum tanks.  See, e.g,. Zands v. Nelson, 779 F. Supp. 1254 (S.D. Cal., 1991); Dominick's Finer Foods, Inc. v. Amoco Oil Co., 1993 WL 524808 (N.D. Ill. 1993)(both holding that petroleum exclusion did not apply under RCRA and that plaintiff could bring an RCRA action with regard to leaking underground gasoline tanks). 

            Second, RCRA, unlike CERCLA, allows a private party to obtain injunctive relief.  Thus, a party can attempt to require the defendants to remediate.  See Lincoln Properties, 23 ELR 20,665 (granting injunctive relief requiring defendants to participate in monitoring and investigating contaminated groundwater).  Third, RCRA provides for an award of reasonable attorneys' fees "to the prevailing party or substantially prevailing party, whenever the court determines such an award is appropriate."  42 U.S.C. §6972 (1988).  Note that one disadvantage of RCRA is that unlike CERCLA and common law provisions, there is a serious question as to whether a private party can recover its past response costs.  See, e.g., Commerce Holding Co. v. Buckstone, 749 F. Supp. 441 (E.D.N.Y. 1990); Kaufman and Broad v. Unisys Corp., 822 F. Supp. 1468 (N.D. Cal. 1993); Portsmouth Redev. Auth. v. BMI Apartments Assoc., 847 F. Supp. 380 (E.D. Va. 1994)(all holding that private property owners could not recover past response costs under RCRA).

            Section 7002 of RCRA has strict notification require­ments which mandate that notice must be given to EPA, the state, and the defendant prior to filing suit.  A failure to follow these requirements can lead to dismissal of the claims.  See Hallstrom v. Tillamook County, 493 U.S. 20, 110 S. Ct. 304, 107 L.Ed.2d 237 (1989). 

            Despite the seemingly broad reach of RCRA, in recent months defendants have asserted arguments which may drastically limited their potential liability under RCRa.  For example, in Winston v. Shell Oil Co. No. 93-1296, 1994 WL 477259 (C.D. Ill., Aug. 18, 1994), the court held that plaintiffs were not entitled to bring a citizen's suit for the leakage of gasoline from USTs because petroleum USTs are exclusively regulated under 42 U.S.C. § 6991 et seq.  The administrator of the EPA is the only one who can commence an action under that provision, and therefore plaintiffs are barred from filing a citizen's suit. In addition, there are several recent cases which hold that a plaintiff cannot assert a RCRA claim where there is a state approved hazardous waste program because, in those cases, state law supersedes federal law.  See, e.g., Clorox v. Chromium Corp., No. 93-c 3331 (N.D. Ill. September 21, 1994). 

A. Electromagnetic Fields (EMF)

B. 

C.         Interest in this area is growing due to the magnitude of the potential problem.  Nearly everyone is exposed to electromagnetic fields or radiation on a daily basis and there is scientific research indicating a possible connection between EMF and adverse health effects. 

D. 

E.         Litigation in the EMF area has focused on four basic areas.  First, plaintiffs have attempted to halt construction or operation of new power lines or upgrades by alleging adverse health effects of EMF radiation.  See, e.g., Barensfeld v. Pennsylvania Public Util. Comm'n, 624 A.2d 809 (Pa. 1993); Houston Lighting & Power Co. v. Klein Independent School Dist., 739 S.W.2d 508 (Tex. App. 1987). 

F. 

G.         Second, plaintiffs have sought property damages based on proximity to utility lines.  These have included both condemnation proceeding cases and direct actions by property owners against utilities for diminished property value.  Thus, it has been held that in eminent domain proceedings, a property owner may offer evidence that his property's value has been diminished due to fear over EMF exposure.  Criscuola v. Power Auth. of the State of New York, 621 N.E.2d 1195 (N.Y. 1993);  San Diego Gas & Elec. Co. v. Daley, 205 Cal. App. 3d 1334 (1988).  Significantly, these cases have held that the property owner does not have to prove the fear is reasonable, but only that the fear has resulted in reduced market value.  Criscuola, 621 N.E.2d at 1196; Florida Power & Light Co. v. Jennings, 518 So. 2d 895, 898 (Fla. 1987); San Diego Gas & Elec. Co., 205 Cal. App. 3d at 1349 (the question was not whether electromagnetic fields caused harm to humans or animals but whether the fear of the danger existed and would affect market value.)

H. 

I.          Third, plaintiffs have pursued EMF damage claims in the workers' compensation context.  However, in one of the only cases to address this issue, In re Robert Pilisuk, Claim No. T-448329, Wash. Bd. of Indus. Ins. App. (1994), the judge ruled against the claimant's widow, holding she had not sufficiently proven causation.

J. 

K.         Finally, plaintiffs have attempted to pursue claims for personal injuries based on exposure to EMF.  To date, no plaintiff has prevailed on such a claim, primarily because of difficulties in establishing causation.  In the only two personal injury cases to go to a jury, the defendants prevailed.  Zuidema v. San Diego Gas & Elec. Co., Cal. Super. San Diego Cty. No. 638222; Jordan v. Georgia Power, Ga. Super. Douglas Cty. No. 91-4103SS-296.  In addition, in Zappavigna v. State of New York, 186 A.D.2d 557 (1992), the court affirmed a lower court finding that plaintiffs' fear of cancer claims due to EMF exposure were not reasonable, and thus denied damages.

L. 

M.                 Airborne Exposure Cases

            We are all exposed to significant amounts of toxic chemicals in the air we breathe.  That fact was of course the inspiration for passage of the federal Clean Air Act and for the development here in California of significant state regulation of air pollution.

            Toxic tort liability can arise out of some types of airborne releases.  Many of the asbestos cases, for example, involve exposure to asbestos in the air.  Toxic spills can result in the creation of toxic clouds which may cause physical illness or death.  Manufacturing operations over many years might create a risk of lung cancer.  These cases typically raise difficult issues regarding strict liability, negligence, causation, and injury.

            But for the decision in Potter, cases involving airborne exposure to toxic chemicals would probably be a significant growth area.  If mere exposure to toxic chemicals was the only prerequisite to recovery for fear of cancer, plaintiffs would be storming the courthouse.  A good example is Akins v. Sacramento Mun. Util. Dist. 8 Cal. Rptr. 2d 705 (Cal. App. 1992) , which makes for instructive reading notwithstanding the Supreme Court's decision to grant review (11 Cal. Rptr. 2d 329 (1992)) and then to dismiss the case (20 Cal. Rptr. 2d 150 (1994)), which has the unfortunate effect of leaving the appellate court's opinion unpublished.

            The case arose out of the Sacramento Municipal Utility District's (SMUD's) release of radioactive material into the waterways and the atmosphere during the late 1970's and early part of the 1980's.  The releases were calculated to be in excess of certain EPA standards, although the EPA ultimately determined, after a full investigation including a study of radioactivity in the surrounding areas, that "SMUD had not violated the EPA standards and that the releases of radioactive material which hid occurred wore not significant."  Akins, 8 Cal. Rptr. 2d at 795.  Two hundred plaintiffs from the neighboring area sought damages from SMUD for severe emotional distress, interference with use and enjoyment of property, and property damage.  Id. at 798.

            Following extensive presentation of scientific evidence regarding plaintiffs' actual exposure to radiation, the trial court granted summary judgment to SMUD on all claims, and the court of appeal affirmed.  It was apparent that at least some of the plaintiffs had been exposed to some levels of radiation from the SMUD plant, but none of the exposures was significant in amount, and none of the plaintiffs had any physical injury.  In a decision foreshadowing Potter in some respects, the court of appeals reasoned as follows:

We conclude that plaintiffs have not presented a triable issue of fact with respect to their claim that they were subjected to unduly dangerous levels of exposure to radiation and that they cannot be permitted to pursue compensation in tort for exposure qua exposure.  The creation of risk will not, standing alone, support an award of damages; rather, the plaintiff must also prove an actual injury resulting from the risk. . . .  At a minimum, potential exposure to toxic substances cannot be equated with actual injury in the absence of a showing of a substantial likelihood that future injury will result. [citations omitted] Plaintiffs have pointed to no evidence to support such a showing.  Id., at 804.

            As explained above, the court in Potter adopted a "more likely than not" standard rather than a "substantial likelihood" standard, but in other respects, the analysis in Akins is consistent with the concerns expressed in Potter.

            Akins shows just how difficult a toxic exposure case can be when it does not involve high concentrations of the toxic chemical (e.g., the concentrations that existed in asbestos cases brought by former employees of asbestos manufacturers or the concentrations that would exist following a toxic spill which produces a toxic cloud).  Low level exposure cases where the plaintiff has suffered no physical injury are difficult to win, especially in light of Potter.