I read in the Pop Tort that Erin Brockovich appeared on HLN’s Dr. Drew Show to talk about the cluster of Tourette’s like symptoms hitting teenagers in Leroy, NY. It turns out that in 1971 a train derailed and dumped tons of cyanide and TCE, which was never cleaned up, in the area where these kids have gone to school all these years. Brockovich’s skeptics are saying, hey, if this spill happened all the way back in 1971, why are kids turning out with these symptoms only now? Her response is that there have been similar symptoms in the past, but back then these kinds of ailments were not consistently reported or diagnosed, and also back in the early days of the spill, many parents told their kids not to drink the water around the school area.
This brings to light one of the main hurdles New York toxic tort lawyers face: Proving “causation”. It is often easy to prove negligence in causing the spill, or in failing to properly clean it, but how do you prove that exposure to the toxic substance caused your client’s cancer, or Tourette’s syndrome, or other ailment, when those diseases or syndromes appeared many years later? You will probably find experts in the field who will hold that opinion, but many times the evidence they rely on is not firmly established, and defendants’ experts will say, hey, wait a minute, lots of other stuff can cause cancer or Tourette’s-like symptoms, and your proof that this spill caused it is merely speculative! Many judges will toss the case before it ever gets to a jury.
But that doesn’t mean you can’t win one of these cases, and it especially doesn’t mean that the toxins emitted by corporate America are not killing us and making us sick. They are, and we known, and they know it. The only question is, can we prove it in court. . . .
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