January 18, 2010
Written By Attorneys: Claudia Drennen McCarron and Jeannie Park
This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.
This e-alert expands on the litigation implications touched upon in last week's alert regarding the use of cadmium - a potentially injurious metal - as a replacement for lead in toys manufactured in China. That article can be found here.
The potential bodily injury claims for children that may arise from cadmium exposure will present many difficult issues. First, the statute of limitations in each state varies as it relates to injuries sustained by minors. Many states, including California, Connecticut, Michigan and Pennsylvania, have statutes of limitations that will not run until the child turns 18. Most states also have adopted a "discovery rule" that tolls the statute of limitations until a disease or injury manifests. Due to these special rules, as well as the fact that it may be months or even years before the long-term effects of cadmium exposure manifest, claims could continue to be filed years into the future.
Second, litigation and preparation of the defense of cadmium cases will be heavily dependent on the use of experts. The information on the health effects of cadmium exposure on children is very scarce because most studies focused on adult occupational exposure. This scarcity will complicate issues of proof. Unless and until reputable science is developed to evaluate claims of injury, causation in specific cases will frequently be in dispute. Because the claimants, by and large, will be children, the impact of their injuries in terms of lost wages and/or loss of earning capacity will also be a substantial issue at trial requiring the use of experts.
Finally, medical monitoring and "second-disease" issues will be undoubtedly arise. The availability of medical monitoring as a tort remedy has been frequently debated. Some states have allowed medical monitoring claims, while other states have adhered to the principle that a cause of action does not arise until the claimant has suffered an injury. Along the same lines, some states have allowed "second-disease" claims in long-latency diseases. For example, some states may allow a plaintiff to file suit today for alleged respiratory issues, then file suit again five years later for a later-acquired lung or prostate cancer alleged to result from cadmium exposure. Due to the split in authority in how courts tend to treat long-latency claims, the commencement and development of cadmium litigation will vary greatly from state to state.
Given the amount of media attention directed towards the cadmium-toy issue, as well as the unique issues that will arise should claims proceed to litigation, liability insurers should monitor this issue and develop strategies to address potential exposure. NLdH will also monitor this issue and report any significant developments.
