Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

           II.            Wrestling with Epidemiological Evidence

Epidemiology is a method of scientific study which measures the “distribution and determinants of disease frequency and occurrence in humans.”[1] In litigation, epidemiological evidence is generally used for the purpose of proving causation.[2] Historically, epidemiology was not a necessary feature of toxic harms cases, for example in Ferebee v. Chevron Chemical Co. the court took the stance that “on questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”[3] The court ultimately held that there was sufficient evidence for the jury to find that the defendant in this case was at fault.[4] However, courts have taken many different approaches to the ways they evaluate and admit epidemiological evidence. Importantly, there seems to be a distinction in the way courts treat epidemiology with respect to mass tort claims and cases where there is either negative or sparse epidemiological evidence to wrestle with.[5]

In a post-Daubert world of evidence, epidemiology is nearly universally accepted as the most reliable form of evidence for demonstrating a toxic harm. However, epidemiological evidence is not easy to come by. Often the only studies that have been performed are studies done by the defendants in the case, which of course are favorable. This desire for epidemiological evidence is born out of the need for evidentiary rules to help the judge move her docket: they provide efficiency and reliability in the courtroom. In contrast, tort law has developed with the aim of providing deterrence to bad actors and compensating victims of negligent acts. These two different legal systems are at odds when rules that help judges move their dockets also impair the ability for the tort system to evenly sort out and find negligent actors and make them pay the victims they have harmed.

Alternative solutions to the tort system, particularly administrative systems of dispute resolution, seem to hold promise for sorting out the tension between the two systems. An administrative system provides a mechanism for sorting out good evidence from the bad, and sorting out toxic from not toxic products, prior to the dispute resolution process. In contrast with a compensation fund system, which merely compensates victims without really providing the deterrence effects that tort law provides, an administrative system would deter negligent actors by putting them on notice that their product has been noted as toxic. Additionally it would compensate victims and also provide a cheaper way for them to get their “day in court” as they would not have to necessarily prove causation.

           III.          Artificial Turf: A Case Study

In 2008, the Attorney General of California brought suits against the Beaulieu Group and Fieldturf USA to enjoin their use of lead in artificial turf that was sold within the state of California.[6] Strikingly, the state of California had accepted over a decade prior to this suit being brought that lead was toxic and could lead to cancers and other health issues.[7] Because the State had already named lead as toxic, the plaintiff was able to conclusively state in the complaint that lead could lead to various illnesses and could definitely state the various methods of exposure humans would be submitted to by lead being present in the product.[8] In this case, the suit resulted in a settlement,[9] and while a large part of the desire to settle likely derived from the fact that the Attorney General brought the suit on behalf of the People of California, there was also a likely calculation relating back to the strength of the previously accepted science and thus the strength of the case. Perhaps, it is something like this type of certainty or strength of the evidence that the rules that have been developed regarding the admissibility of expert evidence and  epidemiological evidence specifically, are attempting to strive toward, in particular with respect to an argument regarding the efficiency of the dispute. Where defendants are sure that they will be found negligent in tort they will be more likely to resolve the issues out of court, or perhaps even refrain from the behavior where they uncover strong epidemiological evidence outside the universe of a lawsuit.

Artificial turf has come under fire for various toxic and environmental harms, broadly defined, in recent years. For example, in the world of sports, artificial turf has long been vilified for causing unprecedented and beyond normal injuries in athletes at an increased statistical rate when compared to natural grass.[10] Harkening back to claims of efficiency and deterrence, it has been argued that the best way to deter manufacturers of artificial turf from promoting the product is to embroil these manufacturers in litigation and hold them accountable for injuries.[11] However, attempts to bar the use of this turf by the National Football League Players Association in the 1970’s were undermined by insufficient medical data.[12] This was in face of a study done for the NFL by the Stanford Research Institute in 1974, demonstrating that natural grass is safer to play on than artificial turf, across the board.[13] Yet the U.S. Consumer Product Safety Commission still found that “based on evidence presently available, the use of artificial turf as a surface cover for athletic playing fields does not present an unreasonable risk of injury.”[14] Recently, the same year that the California Attorney General was granted an injunction against artificial turf companies for their use of lead, the same agency evaluated various samples of artificial turf and found that the “evaluation showed that newer fields had no lead or generally had the lowest lead levels.”[15] The discrepancy between the results, on the same or similar issues, before different law making bodies within the United States demonstrates why the rules which have developed on the admissibility of epidemiological evidence are important despite the various criticisms of them. For courts to deliver consistent results regarding issues of toxic harms, there needs to be a standard measuring stick. However, the issue remains that science and the law have different ideas of causation, and thus what science finds unsafe and what the law finds unsafe might differ. In the above scenario, California was able to go around the toxic harm tort causation issue by passing legislation. It remains to be seen whether a legislative command is always necessary to resolve possibly ambiguous causal issues in toxic harms. Perhaps, there are other alternatives either within the court system, or in an alternative dispute arena that would allow these issues to be resolved in a way that is both “fair” as well as practically effective.

          A.    Artificial Turf and Cancer

Another area of contention in the world of artificial turf is a potential link between the rubber tire crumbs used in the product and cancer. Recently, many concerned citizens have noticed and pointed out a correlation between cancer and artificial turf, especially among young athletes.[16] Crumb rubber was a solution created by engineers in the 1990’s as a method of recycling old rubber tires that were no longer useful.[17] This recycled material is then used to fill the artificial turf and provided stability and shock prevention to the turf.[18] However, since this solution arrived, studies have been done demonstrating that the tire crumbs, or crumb rubber, is laden with carcinogenic toxins.[19] The main problem is that despite this finding there is still a dearth of research on crumb rubber and its side effects, particularly when it comes to the human population.[20]

The Environment and Human Health organization produced a report based on studies done by various organizations on this issue.[21] Of these studies, only one of them is epidemiological.[22] This study, produced by the California Office of Environmental Health Hazard Assessment found that the levels of toxicity in artificial turf with crumb rubber filling were relatively low.[23] However, this study and others done by the same agency on crumb rubber, were funded by CalRecyle, the California state agency in charge of finding methods of recycling used rubber tires.[24] This presents a conflict of interest that neither Rule 702 nor the Daubert doctrine, and much less the current jurisprudence on epidemiological evidence, deals with. Courts would look to the epidemiological evidence provided and likely would conclude that there was insufficient evidence to present to a jury.[25] Yet, outside the courtroom, various agencies involved admit that there is a lack of sufficient evidence to draw the conclusions about the toxicity of the crumb rubber that have been drawn. In 2013, chairman of the Consumer Product Safety Commission, Eliot Kaye admitted that there was not enough evidence to draw conclusions as to safety.[26] This is the same commission which previously issued a press release stating this turf is safe in 2008.[27]

The Consumer Product Safety Commission is not the only agency that is calling for more research to be done on artificial turf and crumb rubber. In 2016, the Environmental Protection Agency, in conjunction with the Consumer Product Safety Commission and the Centers for Disease Control and Prevention as well as Agency for Toxic Substances and Disease Registry launched an action plan to study these issues.[28] Despite this, any argument brought before a court of law regarding the lack of evidence on this issue would fail, because it is not the job of the courts to decide which chemicals are toxic, it is merely the job of the court to proportion blame when issues arise out of negligent actions. Thus, it is not surprising that a lawsuit brought by the San Francisco Bay Chapter of the Sierra Club alleging that the San Francisco Recreation and Park Department did not do sufficient research on the issue of crumb rubber to determine that the toxicity in the artificial turf met the acceptable levels of toxins set by the local government ended in an unfavorable result.[29] On appeal, the Court of Appeals found that the report done in advance of the Beach Chalet project that was the center of the Sierra Club’s suit was adequate.[30]

Although, some might argue that given what is known and what is not known about the state of toxins within artificial turf and the crumb rubber that is used to fill it, a rule of evidence that does not allow information about this type of uncertainty is broken, the court’s stance on epidemiological evidence allows the court to manage a docket of cases and legal decisions about scientific problems in an efficient manner. Ultimately, it is the role of the legislature in conjunction with the scientific community to make policy decisions about what the acceptable amount of risk is when it comes to daily human interaction with toxins. Unfortunately, this leaves concerned citizens, and injured parties waiting for the holes in the science to be filled in by government actors and other nonprofit organizations in order to receive compensation for the issues that have been caused by the toxins. However, the resolution of the issues with regard to the presence of lead in artificial turf sheds some light on alternative solutions to the issue of toxic harms outside of the courtroom.

Again, the various cases dealing with artificial turf sheds light on the tension between evidentiary gatekeeping and compensatory theories of tort. While it is undeniable that more research could be done on artificial turf, toxicity studies have been done that demonstrate a baseline issue. Viewing these facts from the perspective that courts and court dockets must optimize efficiency, perhaps it makes sense that no compensation for plaintiffs can be awarded until a cut and clear chain of causation can be examined via the widely accepted epidemiology. However, in a system where companies are often influenced by risk of litigation and are the most able to study the products they offer to the public, having a compensatory tort system that precludes valid expert evidence on theories of reliability forecloses the court as a venue for certain plaintiffs and allows companies to get away with actions that might be unsavory. In this sense, the amount of litigation surround artificial turf, which is only beginning to lead to further research, represents a system failure wherein strict evidentiary gatekeeping encourages scant scientific research of potentially harmful consumer products.

          B.    Artificial Turf Outside the Tort System

There are two alternatives to remedies within the tort system: an ex ante administrative regulation system and a compensatory administrative system in the form of a victim’s compensation fund. Either system is designed to provide a solution to the problem presented by the admissibility of epidemiological evidence: causation.[31] However, whereas an ex-ante administrative regulation system is meant to deter and prevent toxic harms from occurring by identifying and prohibiting certain toxins from entering the market, an administrative compensatory system merely identifies and acknowledges harms that have occurred and compensates victims without the need for a full trial, though that process can take many forms. An administrative system could be designed in a variety of ways, however the benefits lie in the government assigning fault to actors without the need for trial.[32] Even outside a strict administrative system government involvement could take place in a variety of ways: as the settlement in the Beaulieu case suggests, actors are more likely to settle when a government actor is involved.[33] Government actors lend authority and facility to toxic harm suits by making it more likely that there will be injunctive relief and that negligent actors will settle suits.[34] Perhaps then, if government actors are required to fully accomplish the goals of tort law,[35] it would make sense to move fully from a system of tort to an administrative system where the government would decide fault based on a system of allocating the risk. Ex-ante government action is already taken in situations where certain types of behavior are regulated by administrative agencies.[36] Practically, an administrative system of allocating risk could be done either ex-ante, like regulation, or ex-post, like litigation.[37] However, in the case of toxic harms, because lack of proof and lack of notice tend to be issues, ex-ante processes may make the most sense in providing plaintiffs and potential litigants with swift and efficient justice.[38]

It has been argued that the tort system does little in terms of deterring, correcting, and compensating victims in the area of toxic harms due to the issues of causation that have largely been the focus of this paper.[39] Administrative systems of dispute resolution in the area of toxic harms would provide all the benefits that agencies are already lending to issues such as the artificial turf problem: specialist knowledge, independent investigations, flexibility with the ex-ante vs. ex-post view of the problems, as well as the ability to make policy decisions that are not within the ambit of the court.[40] There are various models of administrative systems including a tort and no-fault hybrid system, a narrowly tailored no-fault system, a broad no-fault system, a strict liability system, or a complex assessment of risk system.[41] These systems will be laid out briefly for the sake of comparing their various virtues and applying them to the case at hand.[42]

          C.    Models of Administrative Systems

The hybrid tort and no-fault administrative system is visible in the Price-Anderson Act that was promulgated with the purpose of promoting the development of nuclear testing and innovation in the scientific community.[43] The statute sets up a system where licensees under the statute must keep a certain amount of insurance and waive immunity from public liability.[44] The licensees are covered both by private insurers and by fees paid into a pool administered by the Nuclear Regulatory Commission.[45] Rabin suggests, that the hybrid characterization comes from the fact that the insurance model makes it a no-fault system, however the provision for private actors to bring a claim in order to receive compensation from the insurance creates a two-party system akin to torts.[46]

The model for the narrow no-fault system, according to Rabin, is the National Childhood Vaccine Injury Act of 1986.[47] The program lays out in a table a time period during which the injury related to the vaccine must occur in order of the victim to receive compensation.[48] This chart eliminates the question of causation. Thus a no-fault system is created where the “compensation fund is financed by an excise tax on each does of vaccine disbursed.”[49] This act was also promulgated with the purpose of stimulating private industry and insulating risky business for the public good from tort liability.[50]

An expansive no-fault system is modeled in both the Superfund Section 301(e) Student Group Report and the Environmental Law Institute Model Statute.[51] Due to the environmental nature of the case studies presented in this paper, we will focus on the Environmental Law Institute Model Statute (ELI Model). The ELI Model seeks to provide a truly regulated body of toxic chemicals by listing as one of its stated purposes “to reduce and prevent exposure to hazardous chemical substances or mixtures that cause or contribute to chronic or progressive diseases.”[52] The model sets up a strict liability system for substances or diseases covered within the proposed statute but leaves open a back door of discretion for the court to limit the liability of defendants if the defendants can show by a preponderance of the evidence that there were other factors involved in the plaintiffs illness.[53] The model allows for switching out of the administrative system back into the torts system, however Rabin notes that the lack of a possibility for switching from the torts system to the administrative system “once the hazardous nature of a product is well documented” is problematic.[54]

Clifford Fisher points out the many inefficiencies in the tort system when proposing his switch to a strict liability system: namely, that the burden of proof rests with the victim who likely does not have the access or resources to get the information they need to put on their case.[55] He goes so far to suggest, “the present system also creates a disincentive for risk-creators to act responsibly because it is not in their best economic interest to do so.”[56] In essence, he is suggesting that the tort system does not achieve deterrence of negligent actors nor compensation of victims in the realm of toxic harms. Instead, he suggests a strict liability system called an Environmental Compensation program, comparable to the Worker’s Compensation program where victims would file their claims to an insurance company.[57] This would allow the market to regulate the cost of risk, in so far as companies pay into the insurance system, which would incentivize risk takers to take the cost of that risk into account when planning business costs.[58] Fisher envisions, in addition to the deterrence effects afforded by companies paying into an insurance system, minimum health regulations that would help maintain socially acceptable levels of risk.[59] One last feature of Fisher’s proposal is to have a proportional liability system that “holds the risk-creator liable for the increased risk and for the losses of each victim of disease in the exposed population discounted by the probability that the risk-creator's hazardous activity was the cause.”[60]

The most recent administrative system proposed is Albert Lin’s, which creates an internalized system of risk with federal levies imposed on sources of pollution.[61] Lin’s proposal would have the levies imposed be proportional to the amount of pollution released by sources.[62] The system does not supersede the tort system, but merely preempts claims that are foreseen and thus covered by the funds collected by the government.[63] However, his proposal does not allow individuals to opt out of the system, thus leaving the administrative system as the only recourse for the covered claims.[64] Lin’s proposal avoids the causation issue by awarding compensation for exposure to risk, not for injury in fact.[65] The last part to Lin’s proposal involves the use of database which would identify different toxins that would be covered under the administrative system; he suggests use of one of two already existing databases: the Agency for Toxic Substance and Disease Registry or the EPA’s Integrated Risk Information System.[66] While either of these databases would need to be updated with the help of the scientific community, Lin acknowledges that the informational needs of this system would be expansive.[67]

While an administrative system offers various tools to solve the problem of victims being compensated for their harms, they do not necessarily offer the best solution to this problem in terms of toxic and environmental harms. Certain no fault systems, such as the Price-Anderson Act and the National Childhood Vaccine Injury Act of 1986 were developed to encourage use of certain products which could be considered, or are, toxic.[68] In the case of environmental and toxic harms, the hope is to deter actors from using and abusing these chemicals rather than encourage them by giving them an easy out. The one improvement afforded by even an encouraging no fault system, is that a no fault system guarantees some compensation for victims, whereas a courtroom without epidemiological evidence guarantees failure. In an indirect way, a no fault system might require companies to think about the toxic harms they might be causing and weigh them, whereas as a court system that has created a loophole for these actors does not deter the behavior at all. Thus, although not fully resolving the tension between evidentiary gatekeeping and compensatory theories of tort, an ex-ante system relieves plaintiffs of evidence production that would allow for compensation without having to think about which evidence works best and then searching for that form of evidence among the research that is available on the topic.

Administrative systems such as the ELI model or Albert Lin’s proposal have heavy informational burdens. Thus, these proposals may suffer in areas such as environmental and toxic harms where the science is often catching up to the realities of plaintiffs’ situations. For example, in Lin’s proposal, if the harm has not yet been recognized by the database, the claim will then be kicked back into the court system, which defeats the purpose of creating a separate administrative system. These informational issues that are related to whether a claim goes into the administrative system or are litigated in tort create a dual system of treating claims that are relatively similar.

In the case of artificial turf, the administrative proposals would perhaps present a halfway solution to the problem presented by a need for epidemiological evidence. As the Beaulieu case demonstrates, if the toxin is recognized on a list either one presented by the administrative proposals, or one already in existence, then the administrative proposals for strict liability present a more manageable system that affords compensation without administrative costs in terms of evidentiary gatekeeping. However, in the case of crumb rubber, because more research on the issue is underway these systems just will not fix the current issue presented by the need for epidemiological evidence in order to put on a successful toxic harms case. In an ideal world, an administrative system proposal might have a wider statute of limitations window, not for latent harms, but for victims of harms that are newly discovered. So, if in five years a link were found between crumb rubber and cancer sufficient to put crumb rubber on the list for strict liability, a victim or victim’s estate could bring a claim at that time.

Another out of court solution to the issue of causation in environmental harms is the creation of victim compensation funds. Victim compensation funds have been used in situations of mass tort, for example September Eleventh, Agent Orange, and the Love Canal.[69] They are funds that pay out to victims of major accidents, natural disasters, and the like without respect to whether the insurer was the party at blame or not.[70] Typically, they shift the standard of care from negligence, used most often in the tort system, to strict liability, which is used sparingly.[71] A compensation fund can act similarly to an administrative system, for example having a no fault opt in system.[72] However, unlike administrative systems that typically have some criteria to be met before payout can occur, many compensation funds merely require victims to demonstrate they meet certain prerequisites, in order to keep evidentiary burdens low.[73] While the legal justifications for tort law include deterrence and compensation, the victims who file suits often begin seeking answers—but in the compensation fund system forego the answers they seek for compensation.[74] Administrative compensatory systems only present a solution to the tension between evidentiary gatekeeping and compensatory theories of tort if the evidentiary hurdles are less stringent than they are in a courtroom. Ex-ante administrative systems demonstrate a different approach to the acceptance of evidence; compensatory schemes, such as the September Eleventh fund, merely demonstrated the acceptance of causation where the cause is readily and easily ascertained. Thus, it is less clear that a compensatory scheme would provide a good solution or alternative to the tort system in the case of toxic harms.

Maritime law provides an example of a system which is a hybrid of the administrative system and compensation fund systems in the environmental realm, where the polluter pays the victims of its pollution[75] . However, as previously mentioned, this overlaps with administrative systems in many ways: polluter pays principle can be applied to civil liability cases, or the principle can be applied through an administrative trial.[76]

In the case of artificial turf, a compensation fund system may be different to plan and administer. For example, in the Benedictin cases, the medication that the scientists found and were published in the medical journals, demonstrated some fear and apprehension in the medical community that the drug was causing genital defects.[77] In the artificial turf cases this link in the scientific community is missing. In this manner, the compensation fund system is more similar to the actual tort system than an outside the tort system. Here, both suffer from an evidentiary causation problem: where there is missing information or linkage, the chances of compensation become slimmer and slimmer. Ultimately, it seems that between the administrative system and the compensation fund system, the administrative fund something is the better choice for smaller legal battles spread over many defendants with uncertainty.

           IV.          Conclusion

This paper has explored the tension between evidentiary rules that aim to foster reliability and efficiency with tort law whose purpose is to provide deterrence and compensation. There doesn’t seem to be one solution which would perfect the system to provide deterrence and reliability at the same time. What does seem apparent is that an administrative system, with a fact finding and research arm outside the dispute resolution system would provide a faster method of victims to be compensated for wrongs, and for those harms to be recognized widely without the need for epidemiological evidence in a court room. However, that conclusion presupposes that the administrators of a system would be proactive in researching potentially harmful chemicals, and also that findings that do not stem from epidemiology will be accepted.

The other potential solution to this issue would be to find a way in an adversary system for there to be a rule that allows evidence in which would not unfairly privilege one party over the other. However, since the rules are based on efficiency and reliability, not fairness, this does not seem to be relevant, nor would it function to improve the system. One question that begs to be asked is why not move from aims of reliability, efficiency, deterrence, and compensation to fairness? Firstly, those aims and justifications are attempting to get at versions of fairness. Secondly, it is impossible to be truly fair in a system where we entertain different versions of the same story and put decision making in the hands of impartial, but ultimately human jurors.