Academic journal article Defense Counsel Journal

Endocrine Disrupters: The Potential Cloud of Manufacturer Toxic Tort Liability

Academic journal article Defense Counsel Journal

Endocrine Disrupters: The Potential Cloud of Manufacturer Toxic Tort Liability

Article excerpt

THE PUBLICATION of Our Stolen Future (1) in 1996 created a firestorm of publicity and public anguish concerning the possibility that tiny amounts of some widely-used chemicals--characterized as "endocrine disrupters" ("EDs")--might be causing a variety of adverse human health effects. Congress took action at that time, directing EPA to commission scientific studies of such low-level effects. (2) The government-funded and government-conducted research has ground along and, if anything, seems to be accelerating. Yet today, ten years into the EPA scientific program on EDs, answers remain elusive. Although public anxiety about EDs has largely abated, numerous sources continue to report on the myriad human health and environmental effects possibly attributable to EDs.

As recently as September, 2006, for instance, the front page of The Washington Post carried an article that reported widespread ED pollution in the Potomac River. The article characterized EDs as "pollution that drives hormone systems haywire," and speculated that EDs may becausing male large- and small-mouth bass in the river to develop immature eggs inside their sex organs:

   The cause of the abnormalities is
   unknown, but scientists suspect a class
   of waterborne contaminants that can
   confuse animals' growth and
   reproductive systems. These pollutants
   are poorly understood, however, leaving
   many observers with questions about
   what the problems in fish mean for the
   Potomac and the millions of people who
   take their tap water from it. (3)

The tone of the article is typical of the numerous publications about EDs: On one hand, the article readily concedes that little is understood about the human health effects associated with exposure to EDs; nonetheless, an unmistakable alarm is sounded.

Interestingly, the speculation and uncertainty surrounding EDs is not constrained to purely new chemical inventions. Many will recall that the makers of DES were plunged into litigation over claims that its use by pregnant mothers caused birth defects. Today, DES is alleged to be an ED with other possible health implications. On October 17, 2006, the Reuters Health Information service reported that "[w]omen who were exposed to diethylstilbestrol (DES) in utero tend to go through menopause at a younger age than non-exposed women," an important finding since, according to the article, young age at menopause is associated with heart disease, osteoporosis, and breast and endometrial cancer. The short article concluded with a quote from one of the study's authors, stating that "there could be some health implications for the DES exposed," even though the results of the study showed a very small difference in age of menopause in the exposed versus the unexposed groups. (4)

Growing concerns about the identity, location, and possible effects of EDs are manifest in today's toxic tort and products liability landscape. (5) On November 17, 2006, for example, the online Insurance Journal reported on DuPont's expanding studies (and potential liabilities) concerning the largely unknown health effects associated with PFOA, a chemical--and a suspected ED--used in the manufacture of Teflon-coated, non-stick housewares. As part of its settlement with West Virginia and Ohio residents who claimed personal injuries associated with their exposure to PFOA contaminated in groundwater, DuPont agreed to sponsor nine studies to be performed by a panel of independent scientists. Those studies contemplate health screenings of approximately 70,000 residents in two states, and at this time are projected to take an estimated three to six years to complete. The panelists are now urging that a tenth study be performed and funded by DuPont. Depending upon the outcome of the studies--which "will look at possible links between [PFOA] and heart disease, stroke, diabetes and other disorders"--DuPont could be required to spend an additional $235 million to monitor the health of the residents allegedly exposed to EDs. …

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