Saturday, June 23rd 2018

Where’s the Connection: Cancer Clusters and Exposure to Toxins

Earlier this year, we discussed environmental crimes and the type of conduct that can result in criminal charges as a result of pollution.  In this entry, we will delve a little deeper and look at the result of environmental pollution using the example of Crestwood, Illinois.

Similarly to many other Northern Illinois municipalities, south suburban Crestwood relies on a mixture of well water and pumped Lake Michigan water to supply its residents with potable water.   Over a period of more than two decades, Crestwood residents unwittingly drank contaminated water.  The drinking water was tainted with carcinogens associated with kidney, lung, and gastrointestinal cancers.

For years, Crestwood officials lied to its residents and to regulators by representing that the village relied exclusively on treated Lake Michigan water. The truth was somewhat different.  At times, as much as 20% of the village’s potable water supplies came from a water well tainted with perc-related chemicals, including vinyl chloride.  In fact, the well wasn’t shut down until 2007.

Now, Crestwood’s mayor Robert Stranczek – who succeeded his father Chester after 38 years of service – and the village’s water official are under a federal criminal investigation and defending themselves from civil lawsuits, including one filed by the eco-minded Illinois Attorney General Lisa Madigan that accuses Crestwood officials of lying more than 120 times about their secret use of the well.

The village and its officials may be facing even more lawsuits.  A recent study shows that a cancer cluster exists in Crestwood.  Is this cancer cluster a result of the exposure to tainted drinking water?

Researchers determined it was possible that toxic chemicals in the drinking water caused Crestwood’s high incidence of cancer cases, but they could not make a definite link. Scientific causation is extremely difficult to prove because in this case, other factors could be involved or there could be a statistical blip in the working-class community of about 11,000.

As with nearly all studies of cancer clusters across the nation, specific causes are difficult, if not impossible, to determine. But the Crestwood situation is still different than most other cancer investigations.  Why?

The Ken Runkle, a state health department toxicologist, explains to the Chicago Tribune that,“We are dealing with a situation where we have known exposure. That means we can view these elevated cancer levels in a different light.”  Kidney cancer in particular is associated with exposure to perchloroethylene, also known as PCE or perc, a common dry-cleaning solvent that years ago leached into Crestwood’s well. Research also links lung and some types of gastrointestinal cancer to perc and related chemicals, which state officials first detected in the well water in 1985.

So, you  might be left scratching your head.  If there is a known source of pollution and exposure to the pollutant is correlated with the specific cancers found in Crestwood, what’s the problem?

It turns out the problem is causation.  Causation is defined as the “causal relationship between conduct and result,” which really means that there needs to be some link between a conduct and the resulting effect.

Our legal system is based on the notions of justice and fairness.  As a result, in order to establish liability for an injury – such as the cancer occurrence – a plaintiff must show that the defendant was the cause of the particular injury.  But the causation argument relies on predictability.  What I mean by that is that the greater the likelihood that a specific actor caused the injury or loss intentionally, the greater the likelihood of proving liability.

Causation in a legal context is most simply explained as:  Reasonable people try to avoid injuring others so if harm was foreseeable, there should be liability to the extent that the extent of the harm actually resulting was foreseeable.

Except, this issue is more complicated.  Causation of an event by itself is not sufficient to create legal liability.  In court, a plaintiff must show that there is a way to factually trace the causation but also to show proximate or legal causation.

Establishing causation is required to establish legal liability.  It involves a two-stage inquiry.

  1. The first stage involves establishing ‘factual’ causation. Did the defendant’s act result in the plaintiff’s loss? This must be established before inquiring into legal causation.
  2. The second stage involves establishing ‘legal’ causation. This is often a question of public policy: is this the sort of situation in which, despite the outcome of the factual inquiry, we might nevertheless release the defendant from liability, or impose liability?

As an example, if the cancer-stricken residents of Crestwood band together to sue the village, they can do so under one of several legal theories.  Let’s suppose that they choose to sue under tort principles, such as negligence.  To prove legal liability in negligence, the defendant must have (1) owed the plaintiff a duty of care; (2) breached that duty; (3) by so doing caused damage to the plaintiff; and (4) that damage must not have been too remote, i.e., that causal relationship must be close and without too many intervening events.

David E. Bernstein, a nationally recognized expert on the Daubert case and the admissibility of expert testimony and frequent contributor to The Volokh Conspiracy, wrote:

[T]o prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.

Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence,  not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans’ well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant’s products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly.

The take away message is this: Legal proof of causality and responsibility differs greatly in toxic tort cases and in fact that standard is sometimes looser than the standard that is required for scientific proof.  So, while the presence of a carcinogen and a resulting cancer cluster is a highly emotional issue, it also requires rigorous examination and involves numerous competing experts.  These trials often drag on for years and involve extremely complex scientific issues.  But, because the resulting injury (cancer) may be many years removed from exposure to the cancer-causing agent, proving the connection between the two may be extremely difficult.

Posted by Krystyna on March 19,2010 at 11:00 am.

One Response to “Where’s the Connection: Cancer Clusters and Exposure to Toxins”

  1. [...] drinking tap at home or at work?  Your water may be increasingly toxic.  See, for example, our recent coverage of the probable Crestwood, Illinois cancer cluster or the New York Times’ Clean Water Laws Are Neglected, at a Cost in Suffering article, [...]

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