This article argues that the dilemma described above requires change and proposes a new standard for causation in this type of toxic contamination case. Part I examines the difficulties posed by conventional common law relief mechanisms, and the inadequacies of existing statutory relief mechanisms. Part II scrutinizes a more lenient burden of proof standard, the risk-benefit approach, which some courts have applied when faced with situations involving scientific uncertainties. The risk-benefit approach will be applied to causation analysis in the context of damage recoveries, using the. Hemlock, Michigan, situation as a case study. Part III discusses present congressional proposals, and compares the economic efficiencies of such legislative action with those of a judicially implemented relaxation of causation requirements. This article concludes that relaxation of causation requirements through the adoption of the risk-benefit approach is a response the judicial system can and should make in cases involving scientific uncertainty.
Bradford W. Kuster,
Toxic Substance Contamination: The Risk-Benefit Approach to Causation Analysis,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol14/iss1/4