Law of Environmental And Toxic Torts

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ISBN: 9780314156075 | 0314156070
Cover: Hardcover
Copyright: 5/27/2005

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Focuses on the theories of liability that private plaintiffs may rely upon to recover for environmental or toxic harms. Presents special procedural problems of causation posed by Environmental and Toxic Torts. Addresses special harms that often relate to seeking recovery for future, but as yet unrealized, consequences of their exposure to toxic substances. Regards the role of state and federal statutes and regulations in private tort actions, including discussion of express and implied preemption and the Supreme Court decisions. Discusses proposals for reform of the tort system.

Introduction to Third Edition

vii

Table of Cases

xxvii

Table of Statutes and Regulations

xlix

Overview: Conflicting Perspectives on the Adequacy of the Tort System

(22)

Generally

(3)

Tort Goals and Their Application

(1)

Typical Environmental or Toxic Tort Claims

(1)

Special Characteristics of Environmental Tort Claims

(19)

Generally

(1)

Long Latency Periods

(1)

Proof of Causation

(1)

Role of Expert Scientific or Medical Testimony

(2)

Relationship of Environmental Tort Law to Statutory Environmental Law

(1)

Recurring Themes in Environmental Torts

(1)

Kenneth S. Abraham, The Relation Between Civil Liability and Environmental Regulation: An Analytical Overview

(14)

Trespass Actions

(32)

General Principles of Trespass

(21)

The Intent Requirement

(2)

Possessory Interest

(1)

Extent of Invasion: Are Actual Damages Necessary?

(2)

Relationship to Nuisance

(1)

Continuing Trespass

(1)

The Basic Idea

(1)

Continuing Damages or Injury; Abatability

(2)

Robert N. Hoery v. United States

(9)

Continuing Tortious Conduct

(1)

Who's Right?

(1)

Causation

(3)

Judicial Applications of Trespass

(11)

Martin v. Amoco Oil Company

(3)

Notes and Questions

(6)

Note on Negligent Trespass

(2)

Nuisance: The Comprehensive Environmental Tort Theory

(74)

Nuisance: An Introduction

(1)

Public Nuisance

(24)

Introduction

(1)

Unreasonableness of the Interference

(2)

What is a ``Public Right?''

(2)

Nashua Corporation v. Norton Company

(3)

Notes and Questions

(2)

Private Action for Public Nuisance---The Special Injury Rule

(2)

In re the Exxon Valdez; Alaska Native Class v. Exxon Corp.

(3)

Notes and Questions

(3)

A Note on Economic Principles

(2)

Physical Harm as Constituting Special Injury

(2)

Equitable Actions for Public Nuisance

(1)

Private Attorneys General

(1)

Citizen Suits

(1)

Class Actions

(1)

Associational Standing

(1)

Private Nuisance

(49)

Generally

(1)

Restatement's Formulation

(1)

Standing: Who Can Sue for Private Nuisance

(1)

Requirement of Significant Harm

(1)

General Liability Rules

(1)

What Constitutes An ``Intentional'' Invasion?

(2)

What Is Unreasonableness?

(3)

The Weighing Process

(1)

Gravity of the Harm

(1)

Utility of Defendant's Conduct

(1)

Other Considerations on Unreasonableness

(1)

Nature of the Interest Interfered With

(1)

Adkins v. Thomas Solvent Company

(6)

Notes and Questions

(3)

Basis of Liability

100

(1)

United Proteins, Inc. v. Farmland Industries, Inc.

100

(5)

Notes and Questions

105

(4)

Harm Versus Utility Balancing

109

(1)

Carpenter v. The Double R Cattle Company, Inc.

110

(2)

Notes and Questions

112

(1)

Note on Anticipatory Nuisance and Injunctions

113

(1)

Sharp v. 251st Street Landfill, Inc.

114

(8)

Notes and Questions

122

(1)

Problem

123

(1)

Note on Negligent Conduct

124

(3)

Problem

127

(2)

Strict Liability for Abnormally Dangerous Activities and Other Theories

129

(111)

Evolution of the Strict Liability Doctrine

129

(5)

Genesis: Rylands v. Fletcher

129

(2)

American Recognition and the First Restatement

131

(2)

The Restatement (Second) of Torts

133

(1)

Restatement (Second) of Torts Standard of Liability

134

(39)

Relationship to Negligence and Balancing

135

(1)

Relationship to Nuisance

135

(1)

High Risks of Harm

136

(2)

The Negligence Barrier and Section 520(c)

138

(1)

Fletcher v. Conoco Pipe Line

138

(6)

Indiana Harbor Belt Railroad Company v. American Cyanamid Company

144

(5)

Notes and Questions

149

(2)

Some Contrary Voices

151

(1)

Defining the ``Activity'' That May Be Abnormally Dangerous

152

(1)

Activities, not Substances

152

(1)

Contrary Approaches

153

(2)

Effect of Government Regulations

155

(1)

Regulations As Implying that Due Care Is the Test

155

(1)

Negligence Per Se

156

(1)

Role of Common Usage and Locational Appropriateness

157

(1)

The Restatement Explanation

157

(1)

Exploration for Fuel, and its Transportation and Storage: Common Usage? Appropriate Locations?

158

(1)

Other Applications of Factors (d) and (e)

159

(1)

Value to the Community

160

(2)

Question of Law: Who Does the Balancing?

162

(1)

Function of the Court

162

(1)

Inconsistent Findings: Disposal of Hazardous Waste

163

(2)

Sale of Product Does Not Qualify

165

(1)

Operation of Uranium Metals Production Plant Does Qualify

166

(1)

Knowledge of the Danger or Foreseeability of Harm as a Prerequisite to Strict Liability

166

(1)

T&E Industries v. Safety Light Corporation

166

(3)

Notes and Questions

169

(3)

Notes and Questions

172

(1)

Rationales for Imposing Strict Liability

173

(4)

Internalization of All Costs: The Enterprise Model

173

(1)

Calabresi's Model

174

(1)

Non-Reciprocal Risks Model

175

(1)

Epstein's Corrective Justice Model

176

(1)

Posner's Reduction in Levels of Activity Model

176

(1)

The Relationship Between Statutory and Common-Law Strict Liabilities

177

(15)

Hagen v. Texaco Refining and Marketing, Inc.

177

(8)

Notes and Questions

185

(6)

Notes and Questions

191

(1)

Application of Nuisance, Trespass, Negligence, and Strict Liability to Vertical Relationships

192

(18)

Rosenblatt v. Exxon Company, U.S.A.

193

(9)

Notes and Questions

202

(5)

Problem

207

(3)

Misrepresentation as a Basis of Liability

210

(30)

Liability for Non-Disclosure

210

(1)

Strawn v. Canuso

210

(8)

Notes and Questions

218

(3)

Failure to Provide Disclosure Mandated by Law

221

(1)

Edward A. Visconti, Jr. v. Pepper Partners Limited Partnership

222

(6)

Negligent Misrepresentation

228

(1)

Binette v. Dyer Library Association

228

(5)

Notes and Questions

233

(1)

A Note on Some Other Potentially Liable Parties

234

(4)

Notes and Questions

238

(2)

Remedies and Compensable Interests

240

(90)

Injunctions: The Comparative Injury Calculus

240

(4)

Notes and Questions

243

(1)

Standards for Granting Injunctions: Balancing the Equities

244

(11)

Boomer v. Atlantic Cement Company, Inc.

248

(4)

Notes and Questions

252

(3)

Damages for Injury to Real Property

255

(21)

Harm to the Physical Condition of Land

255

(1)

The General Rules

255

(4)

Environmental Damages: Restoration Versus Diminution and the Role of Stigma Damages

259

(1)

In re Paoli Railroad Yard PCB Litigation

259

(7)

Notes and Questions

266

(4)

Loss of Use or Enjoyment

270

(1)

Personal Discomfort and Annoyance

270

(1)

Hawkins v. Scituate Oil Co., Inc.

271

(3)

Notes and Questions

274

(2)

Damages to Persons and Present Liability for Prospective Harm

276

(54)

Introduction: The Issues Identified

276

(1)

Judicial Treatment of Medical Monitoring and Emotional Distress

277

(1)

Metro-North Commuter Railroad Company v. Buckley

277

(7)

Note on Post-Exposure, Pre-Symptom Medical Surveillance Damages

284

(1)

Supporting Authority

284

(2)

Evolution of the Elements of the Remedy

286

(1)

Other Courts' Variations

287

(2)

The Form of the Remedy: Lump Sum Award or Court Supervised Fund

289

(2)

Medical Monitoring Under Cercla

291

(1)

Generalized Scientific Studies to Determine Increased Risk

291

(1)

Literature

292

(1)

Problem

293

(1)

Proving Medical Monitoring Damages

294

(1)

Judicial Treatment of Fear of Future Disease and Emotional Distress

295

(1)

Isabel v. Velsicol Chemical Co.

295

(5)

Sterling v. Velsicol Chemical

300

(1)

Notes and Questions

301

(1)

A Civil Action

302

(1)

Physical Harm, Impact or Related Requirements

303

(5)

California Standard of Reasonableness and Probability of Disease

308

(1)

Choosing From Among the Alternatives

309

(1)

Increased Risk Alone Not Compensable

310

(2)

Problem

312

(1)

Punitive Damages

313

(1)

Constitutional and Other Limitations

314

(1)

Johansen v. Combustion Engineering, Inc.

314

(10)

Notes and Questions

324

(6)

Environmental Statutory Regulation and the Common Law: Preemption and Implied Rights

330

(65)

General Principles of Federal Preclusion and Enhancement of Private Rights

330

(50)

Introduction

330

(1)

Regulation as Enhancing Common Law Rights

331

(1)

American Canoe Assoc. v. District of Columbia Water and Sewer Authority

332

(15)

Note

347

(1)

Regulation as Precluding Common Law Rights

347

(1)

Supreme Court Decisions Precluding Common Law Rights

348

(1)

Milwaukee v. Illinois

348

(4)

Notes and Questions

352

(6)

International Paper Co. v. Ouellette

358

(6)

Notes and Questions

364

(1)

Cipollone v. Liggett Group

365

(10)

Notes and Questions

375

(2)

Shaw v. Dow Brands, Inc.

377

(2)

Notes and Questions

379

(1)

State Judicial Considerations of Preemption: A Complementary Approach

380

(4)

Negligence Per Se

384

(11)

Notes

386

(1)

Sheila Bush, Can You Get There From Here? Noncompliance With Environmental Regulation as Negligence Per Se in Tort Cases

386

(4)

Notes and Questions

390

(3)

Problem

393

(2)

Toxic Products, Processes and Services

395

(79)

Introduction: Some General Principles

395

(10)

Negligence

396

(1)

Breach of Warranty

396

(1)

Express Warranty

397

(1)

Implied Warranty of Merchantability

397

(1)

Implied Warranty of Fitness for a Particular Purpose

398

(1)

Proper Plaintiffs to a Warranty Claim

398

(1)

Warranty Disclaimers and Limitations

399

(1)

Strict Liability in Tort

400

(1)

Misrepresentation

401

(1)

Restatement (Second) of Torts § 402A: Strict Liability and New Approaches

402

(3)

Toxic Product Claims by Type

405

(69)

Asbestos

405

(1)

Liability Standards and Defenses

405

(1)

Borel v. Fibreboard Paper Products Corporation

406

(3)

Notes and Questions

409

(5)

Punitive Damages in Asbestos Litigation

414

(1)

Fischer v. Johns-Manville Corporation

414

(5)

Notes and Questions

419

(3)

Alcohol

422

(3)

Notes and Questions

425

(2)

Prescription Pharmaceuticals, Biological Products and Medical Devices

427

(1)

Pharmaceuticals and comment k

427

(1)

Brown v. Superior Court

427

(5)

Notes and Questions

432

(2)

Biological Products: Special Problems of AIDS-Contaminated Blood Products

434

(1)

McKee v. Miles Laboratories

434

(3)

Notes and Questions

437

(3)

Medical Devices

440

(1)

Hegna v. E.I. du Pont de Nemours and Company

440

(3)

Notes and Questions

443

(1)

Chemicals

443

(1)

Liability Standards for Warnings

443

(1)

Werckenthein v. Bucher Petrochemical Company

443

(4)

Notes and Questions

447

(2)

Bulk Suppliers of Chemicals: The Sophisticated User Defense

449

(1)

Swan v. I.P., Inc.

450

(9)

Notes and Questions

459

(1)

Foreseeable Users and Uses

459

(1)

High v. Westinghouse Electric Corp.

459

(4)

Notes and Questions

463

(1)

Agricultural Chemicals: Use of Express Warranty Theory

463

(1)

Ciba--Geigy Corporation v. Alter

463

(6)

Notes and Questions

469

(3)

Problem

472

(2)

Causation

474

(106)

Introduction

474

(1)

Causation: Did the Toxic Substance Cause Plaintiff's Harm?

474

(55)

Introductory Principles

474

(1)

Katie Bonner v. ISP Technologies, Inc.

474

(2)

Note

476

(1)

Problems With Causation Terminology

477

(2)

The Dual Causation Question

479

(2)

Early Use of Probabilistic Evidence

481

(4)

Notes and Questions

485

(1)

The Scientific Method: Toxicology and Epidemiology

485

(1)

Gerald W. Boston, A Mass Exposure Model of Toxic Causation: The Content of Scientific Proof and the Regulatory Experience

485

(9)

Standards of Admissibility of Scientific Evidence

494

(2)

Daubert v. Merrell Dow Pharmaceuticals, Inc.

496

(5)

Notes and Questions

501

(1)

Problem

502

(2)

Sufficiency of the Scientific Evidence: Nature and Quantum of Proof

504

(1)

Minimalist Requirements

504

(1)

Notes and Questions

505

(2)

Intermediate Standard of Sufficiency

507

(4)

Rigorous Standards of Sufficiency: The Bendectin Litigation

511

(1)

Brock v. Merrell Dow Pharmaceuticals, Inc.

511

(6)

Notes and Questions

517

(8)

Problem

525

(1)

Note on Exposure as an Element of Causation

526

(3)

Plaintiff Indeterminacy

529

(12)

Individualized Model: Allen v. United States

530

(2)

Notes and Questions

532

(2)

The Collective Model: Agent Orange

534

(1)

In re Agent Orange Product Liability Litigation

534

(2)

Notes and Questions

536

(5)

Did the Defendant Cause Plaintiff's Harm: The Indeterminate Defendant Problem

541

(22)

Some Devices to Overcome Defendant Indeterminacy

541

(1)

Alternative Liability

541

(1)

Concert of Action Theory

542

(1)

Enterprise or Industry--Wide Liability

542

(1)

Market Share Liability

543

(1)

Notes and Questions

544

(4)

Market Share at the Boundaries: Factor VIII and Lead Paint

548

(1)

Factor VIII and Contaminated Blood Products

548

(1)

Smith v. Cutter Biological, Inc.

548

(8)

Notes and Questions

556

(1)

Problem

556

(2)

Lead Paint Pigments

558

(2)

Notes and Questions

560

(1)

Note on Lead Paint and Causation

561

(2)

Apportionment of the Harm or Damage

563

(17)

Apportionment Between Plaintiff and Defendant

563

(1)

Dafler v. Raymark Industries, Inc.

563

(6)

Notes and Questions

569

(2)

Apportionment or Joint and Several Liability Among Tortfeasors

571

(1)

Michie v. Great Lakes Steel Division

572

(3)

Notes and Questions

575

(2)

Problem

577

(3)

Workplace Injuries and Toxic Substances: Intersection of Workers' Compensation and Tort Liability

580

(41)

Introduction to the Workers' Compensation System

580

(4)

A Brief History

580

(1)

Issue Preclusion

581

(3)

Avoiding the Exclusivity Bar

584

(19)

The Intentional Tort Exception to Exclusivity

584

(1)

Notes and Questions

585

(1)

Judicial Rationales for Creating the Exception

586

(1)

The ``Non-accident'' Rationale

586

(1)

Larson's Approach to the Accident Exception

586

(1)

The ``Severed'' Relationship Rationale

586

(1)

The ``Intentional'' Tort Standard Used by States

587

(1)

The Majority Rule: Deliberate Intent to Cause Injury

587

(1)

``Substantial Certainty'' Test of Intent

587

(1)

Wilful, Wanton or Reckless Test

587

(1)

Legislative Standards of Intent

587

(1)

Toxic Exposure Cases

588

(1)

Dan J. Oros v. Hull & Assoc., Inc.

588

(8)

Note

596

(1)

Deceit Exception

597

(1)

Notes and Questions

598

(1)

Actions by Spouses or Children Against Employers

599

(1)

Claims by Spouses

599

(1)

Claims by Children

600

(1)

Fetal Protection Policies

601

(1)

Take--Home Toxics

602

(1)

Aggravation of Injury Exception

603

(1)

Occupational Disease Acts

603

(12)

Introduction

603

(1)

Judicial Application of Occupational Disease Acts

604

(1)

Palmer v. Del Webb's High Sierra

605

(3)

Notes and Questions

608

(1)

Distinguishing Diseases Incident to One's Employment From the Ordinary Diseases of Life

608

(1)

Intentional Tort Exception in Occupational Diseases

609

(1)

A Note on Environmental Tobacco Smoke

610

(2)

Notes and Questions

612

(1)

Employees' Actions for Relief

613

(1)

Injunctive Relief

613

(1)

Claims Based on Workers' Compensation Acts

613

(1)

Claims Based on Negligence

614

(1)

Miscellaneous Contexts

615

(1)

Occupational Safety and Health Requirements

615

(6)

Toxic and Hazardous Substances

616

(1)

OSHA Recordkeeping Requirements

617

(1)

Hazardous Chemicals

617

(1)

The Role of Non--Compliance and Compliance

618

(3)

CERCLA: Liability and Compensation for Cleaning Up Hazardous Substances

621

(244)

Overview of Cercla

621

(3)

Introduction

621

(2)

Principal Statutory Provisions

623

(1)

Government Actions

624

(32)

Release or Threatened Release

625

(1)

Hazardous Substance

626

(1)

No Threshold Minimum

626

(1)

Useful Product or Waste

627

(1)

Exclusions and Underground Storage Tanks

628

(1)

Facility

629

(1)

National Priorities List

630

(1)

Damages Recoverable by the Government

630

(2)

The Government Action: Strict, Retroactive and Joint and Several Liability Rules

632

(3)

In the Matter of Bell Petroleum Services, Inc.

635

(11)

Notes and Questions

646

(1)

The ``Typical'' Government Action: United States v. Monsanto

646

(3)

Notes and Questions

649

(1)

Divisibility of Harm: The Alcan Opinions

650

(3)

Notes and Questions

653

(3)

Parties Liable Under Cercla

656

(32)

Current Owners and Operators

656

(1)

Note

656

(2)

Liability of Corporations and Affiliated Firms and Persons: Direct and Derivative Liability and Parent Corporations

658

(1)

United States v. Bestfoods et al.

658

(10)

Notes and Questions

668

(7)

Advising Your Client

675

(4)

Liability of Successor Entities

679

(6)

Lenders as Owners

685

(1)

Judicial Division

685

(1)

EPA Lender Rule

685

(1)

Congress Enacts Cercla Lender Amendment

686

(1)

Redefinition of Owner

686

(1)

Operational Versus Financial or Administrative Control

686

(1)

Foreclosure Definition

687

(1)

Participation in Management

687

(1)

Foreclosure

688

(1)

Private Cost Recovery Actions

688

(17)

What are Private Cost Recovery Actions?

688

(1)

Plaintiff's Prima Facie Case

689

(1)

Compliance With the NCP

690

(1)

General Rule

690

(1)

State Claims Cannot Circumvent the NCP

691

(1)

Is Compliance with State-Ordered Cleanups Sufficient?

692

(1)

Moral of the Story on the NCP Compliance

693

(1)

Proof of Compliance as Affecting Liability or Damages

694

(1)

Recovery of Attorneys' Fees

695

(1)

Key Tronic Corporation v. United States et al.

696

(5)

Notes and Questions

701

(1)

Causation in Private Cost Recovery Actions

702

(1)

What Kind of Test to Apply

702

(2)

Special Problems of Two-Site Cases

704

(1)

Statutory Defenses to Cercla Liability

705

(24)

Third--Party Defense

706

(2)

Notes and Questions

708

(1)

State of New York v. Lashins Arcade Co.

709

(7)

Notes and Questions

716

(6)

Innocent Landowner Defense

722

(1)

Background

722

(1)

Congress' Attempt to Create a Defense for Purchasers

722

(2)

Caused ``Solely By'' Requirement

724

(1)

Failure to Exercise Reasonable Care

725

(1)

Failure to Perform Appropriate Inquiry

726

(2)

Successful Invocations of the Defense

728

(1)

Allocating the Clean-Up Costs: Contribution Actions and Other Devices

729

(112)

Standards for Obtaining Contribution

729

(1)

Contribution Summarized

730

(1)

Private Cost Recovery Actions under § 107 Versus Contribution Actions under § 113

731

(1)

Pre--SARA Developments

731

(1)

Congress Enacts Explicit Contribution Remedy

732

(1)

Continuing Confusion

733

(3)

New Castle County et al. v. Halliburton NUS Corp.

736

(6)

Notes and Questions

742

(7)

Problems

749

(3)

The Allocation Process in Contribution Actions

752

(1)

Introduction

752

(1)

Elements of the Contribution Action

753

(2)

United States v. R. W. Meyer, Inc.

755

(3)

Notes and Questions

758

(2)

More on Approaches to Allocating Costs

760

(1)

Per Capita

760

(1)

Comparative Fault

760

(1)

Comparative Causation

761

(1)

Gore Amendment

761

(1)

Other Relevant Factors

762

(1)

Control Data Corporation v. S.C.S.C. Corp.

763

(5)

Notes and Questions

768

(5)

Contribution and Causation

773

(1)

Acushnet Company v. Mohasco Corporation

773

(10)

Notes and Questions

783

(10)

Note on Joint and Several Liability

793

(1)

Revisiting the § 113(f) Versus § 107 Debate

793

(2)

Courts of Appeal Move to Joint and Several: Carter-Jones Lumber Co.

795

(1)

Seventh Circuit Adopts Broader Joint and Several Liability Recognition

796

(1)

Browning--Ferris Industries of Illinois, Inc. v. Richard Ter Maat, et al.

797

(4)

Notes and Questions

801

(2)

Literature

803

(1)

Causation: Final Thoughts

804

(2)

Rights to a Jury Trial

806

(1)

Effect of Settlement With the Government

806

(1)

Effect of Settlement on Contribution: Cercla's Provisions

807

(2)

Rumpke of Indiana, Inc. v. Cummins Engine Company, Inc., et al.

809

(9)

Notes and Questions

818

(5)

Judicial Review of Settlements

823

(5)

Diversity of Views on Nonsettlor Liability

828

(1)

Framing the Issue

828

(1)

The Uniform Contribution Among Tortfeasors Act and § 113(f)(2): Pro Tanto or Dollar Reduction Method

829

(4)

Uniform Comparative Fault Act and § 113(f): Proportionate Reduction

833

(8)

Indemnification Agreements

841

(24)

The Statutory Provision

841

(1)

Are Such Agreements Permitted Under Cercla?

841

(3)

How Should Such Agreements be Construed?

844

(1)

Unknown Liabilities

844

(1)

Effect of Pre-Cercla Contracts on Cercla Claims

845

(1)

Governing Law

846

(2)

What Role for Sophistication of the Parties?

848

(2)

Trace Amounts and Rationality

850

(1)

SDC/Pullman Partners v. Tolo Incorporated

850

(8)

Notes and Questions

858

(2)

Problem

860

(5)

Insurance

865

(39)

Introduction

865

(1)

Insurance Coverage for Environmental and Toxic Torts

866

(14)

Occurrence

867

(1)

The General Rule

867

(1)

Differing Views

868

(1)

Objective versus Subjective Test

869

(1)

Problem

870

(1)

Bodily Injury and Emotional Harm

871

(1)

Property Damage

872

(2)

Triggers of Coverage for Bodily Injury

874

(1)

Exposure

874

(2)

Manifestation/Discovery

876

(1)

Injury-in-Fact

876

(1)

Multiple or Continuous Trigger

877

(1)

Triggers of Coverage for Property Damage

878

(1)

Number of Occurrences

878

(2)

Special Insurance Problems of Environmental Cleanups

880

(24)

Pay ``As Damages'' and ``Suit'' Controversies

880

(1)

Coakley v. Maine Bonding and Casualty Company

880

(9)

Notes and Questions

889

(2)

Sudden and Accidental Pollution Exclusion

891

(1)

Sudden and Accidental Exception to the Pollution Exclusion

891

(3)

Problem

894

(1)

Does the Claim Involve Release of a ``Pollutant'' into the Atmosphere?

895

(2)

Absolute Pollution Exclusion

897

(2)

Personal Injury Endorsement

899

(2)

Owned Property Exclusion

901

(1)

Known Risk Limitation

902

(2)

Defenses

904

(48)

Introduction

904

(1)

Statutes of Limitation for Injury to Real Property

905

(12)

Mangini v. Aerojet-General Corporation

905

(6)

Notes and Questions

911

(6)

Statutes of Limitation in Product and Occupational Exposure Cases

917

(10)

Date of the Injury

917

(1)

Accrual Based on the Discovery Rule

918

(1)

Evenson v. Osmose Wood Preserving Company of America, Inc.

919

(4)

Notes and Questions

923

(3)

Problem

926

(1)

Successive Actions and Statutes of Limitation

927

(12)

Wilson v. Johns-Manville Sales Corporation

928

(5)

Notes and Questions

933

(6)

Statutes of Repose

939

(3)

How They Differ From Statutes of Limitation

939

(2)

Constitutional Questions

941

(1)

Revival Statutes

942

(1)

Contributory Fault/Assumption of the Risk in Real Property Actions

943

(6)

Defenses to Nuisance and Real Property Actions

943

(1)

Contributory Negligence or Fault

943

(1)

Assumption of the Risk

944

(1)

Coming to the Nuisance

945

(2)

Sale of Property Defense

947

(2)

Plaintiff's Conduct as a Bar in Toxic Products Cases

949

(3)

Special Problems in Trial Management and Settlement of Toxics Litigation

952

(63)

Class Actions

952

(12)

Dennis Mullen, et al. v. Treasure Chest Casino, LLC, et al.

954

(7)

Notes and Questions

961

(1)

Notes and Questions

962

(2)

Other Aggregative or Disaggregative Procedures

964

(3)

Consolidation

964

(1)

Bifurcation of Claims and Issues

965

(1)

Multidistrict Litigation

966

(1)

Asbestos Litigation: Classes, Consolidations, Bifurcations and Multidistrict Litigation

967

(13)

In re Fibreboard Corporation

968

(6)

Notes and Questions

974

(6)

Judicial Case Management

980

(10)

``Lone Pine'' Orders

980

(3)

Notes and Questions

983

(2)

Protective Orders

985

(1)

Non-disclosure Orders

985

(1)

Donor Identification

986

(1)

Sanctions for Violation of Protective Orders

987

(1)

Gag Orders; Sealing of Documents

988

(2)

State Statutes

990

(1)

Settlements

990

(10)

General Strategy

990

(5)

Releases of Future Injuries

995

(1)

Green Cards and Medical Monitoring

996

(1)

General Approach

996

(1)

Three Mile Island

996

(1)

Fernald Litigation

997

(1)

Distribution of Settlement Funds

998

(1)

Value Protection Programs

998

(2)

Choice-of-Law Problems

1000

(9)

Lex Loci Delecti: Vested Rights

1001

(1)

Most Significant Relationship

1001

(1)

Strongest Governmental Interest

1001

(1)

Other Approaches

1002

(1)

Proposals for Reform

1002

(1)

Federal Substantive Law

1002

(2)

Federal Common Law

1004

(2)

Federalized Choice of Law

1006

(2)

Notes and Questions

1008

(1)

Judicial Management of Scientific and Technology Issues

1009

(6)

Use of Court--Appointed Experts

1010

(1)

Special Masters

1011

(1)

Reasons for Underutilization

1012

(1)

Recommendations for Change

1012

(2)

Notes and Questions

1014

(1)

Index

1015

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Law of Environmental And Toxic Torts

Summary

Table of Contents

Supplemental Materials