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The Paradox of Statutes of Limitations in Toxic Substances Litigation

1988; UC Berkeley School of Law; Volume: 76; Issue: 5 Linguagem: Inglês

10.2307/3480513

1942-6542

Michael D. Green,

Medical Malpractice and Liability Issues

This Article evaluates the use of statutes of limitations in toxic substances litigation.Professor Green begins by analyzing the function of statutes of limitations in traditional tort cases.He concludes that in these traditional settings statutes of limitations may improve the accuracy of fact-finding and provide some measure of repose for defendants.He demonstrates, however, that toxic substances cases differ markedly from traditional tort claims: The causes of the injury are more difficult to trace; the period from exposure to cognizable harm is much longer and varies significantly; the harms are more susceptible to misdiagnosis; and the number of victims is likely to be much greater.Because of these differences, he contends, statutes of limitations have precisely the opposite of their intended effect in toxic substances litigation.Rather than improving the accuracy of fact-finding, they require that claims be resolved before adequate scientific evidence of causation has been developed.These statutes also require plaintiffs to bring suit prematurely-before they have suffered any significant loss and at a time when assessing the future course of their condition is impossible.Finally, he argues, that providing a significant measure of repose through statutes of limitations to defendants is neither possible, because of the lengthy latency periods, nor particularly desired by those defendants.Professor Green recommends that statutes of limitations be abolished entirely in toxic tort litigation, thereby leaving the decision when to file a suit to the discretion of the plaintiff.He concludes that abolishing statutes