The Data Gap: Promoting Analysis of Exposure-Related Harms


In the toxic tort context, both litigation and regulation require reliable scientific data to establish a causal connection between exposure to some substance and alleged harm before allowing recovery or mandating mitigation. On the one hand, it is important for litigation and regulation to be based on causal evidence of actual harms. Otherwise, these interventions could make society worse off by unduly limiting the availability of useful substances and diverting resources away from addressing true risks. On the other hand, for this system to comprehensively address all important environmental externalities, there must exist sufficient incentives to generate the data required for effective risk-management through litigation and regulation.

This Article argues that, in many cases, the incentives are insufficient. When it comes to latent harms, in particular, scientific research evaluating causal links is challenging and expensive. Independent researchers, who require funding for their work, are unlikely to systematically analyze the effects of new substances. To date, there are thousands of unstudied substances in use.

Given the increasing importance of reliable scientific data for efficient risk management, it is time to evaluate all options for incentivizing its production in order to promote optimal deterrence in the toxic tort context. This Article proposes several ways to combat the persistent data lag, including changes to tort common law and regulation. Most controversially, it proposes a new tort cause of action for informational monitoring and analysis in some circumstances when there exist no reliable studies on the potential harm of a particular substance. A successful claim would lead to the establishment of a scientific panel, paid for by the defendant, to analyze and monitor the link between exposure to the substance and subsequent health outcomes.