Suing over cancer (Part 4)

Mar 8, 2012

As part of our week-long series on cancer and the environment... we’re talking about going to court. Some people turn to the courts because they think pollution has made them sick, and they think they know who’s to blame. But, the courts aren’t always the best place to turn with these kinds of cases.

Kathy Henry lived along a river in the Midland area that Dow Chemical contaminated with a chemical called dioxin. The EPA says dioxin is likely to cause cancer. Henry’s property had high levels of the chemical. So she and a group of other people sued Dow. She was more than a little nervous that first day in court.

“I was a little overwhelmed, just really interested in watching the proceedings.”

But what does she feel like now?

”We’re just frustrated to the point where I have no respect for the process anymore.”

Henry’s frustrated because her case started nine years ago. Their case isn’t over yet, but it’s not looking good for them.

“We just wanted the courts to force Dow to basically buy our house so we could leave. And we couldn’t afford to just pack up and leave on our own.”

Henry’s group has not been successful in getting Dow to pay for any moves, or for medical monitoring to look out for future health problems.

Let’s just say here that these cases aren’t easy for the companies being sued either. They take up a lot of time and resources.

Sara Gosman teaches toxic torts classes at the University of Michigan Law School. She says Kathy Henry’s experience is not uncommon.

“A toxic tort is a lawsuit for personal injury. These cases are complex, they’re difficult to prove, they’re very expensive.”

Let’s say, for example, there’s a case where people say a company released a chemical into their water-and now some of them have cancer. Sara Gosman says it’s going to get complicated right away.

“I think a lot of the difficulty comes from the lack of scientific knowledge about how people get cancer.”

And there’s one other thing.

“And since cancers don’t typically show up until 20 to 30 years after the exposure, you have to reconstruct after a great length of time what actually happened. That is the big issue around toxic torts.”

Sometimes the system works for plaintiffs. When it does they can win a lot of money and really change how companies act. But that doesn’t happen often. Sara Gosman says maybe the courts aren’t the best place for these kinds of fights, but that people keep ending up there anyway. Why? Because the laws that should protect people from toxic substances in the first place-and keep them out of court-are weak.

“Right now, the federal law governing these substances, the main federal law governing it which is called the toxic substances control act, TSCA, is widely seen as a failure. It doesn’t actually protect people’s health.”

In fact, that law... it’s basically been locked in a drawer. Gosman says the EPA hasn’t even tried to use it to regulate any toxic substances-at all-in over 20 years.

So what are people supposed to do? Well, there are alternatives to the court system. Like the 9-11 Health Compensation Act. People who got certain diseases from dust after the twin towers collapsed got some money automatically to pay for certain health problems. But that’s not happening on a wide scale. Until there are more alternatives people will still turn to the courts if they think the environment is making them sick.

And what advice does Kathy Henry, the woman who is suing Dow right now, have for those people?

“So all you can do is try. I wish them luck.”

Tomorrow, in the final part of our series, we take a look at cancer prevention research and what we know about avoiding cancer before it starts.