Washington Law Review


Brent Carson


This Comment addresses the need to provide adequate and present remedies for individuals exposed to toxic wastes. Part I describes the prevailing "reasonable medical certainty" rule and shows how it unjustly prevents recovery by plaintiffs exposed to hazardous waste. Part II examines one method of avoiding the injustice of the "reasonable medical certainty" rule. The adoption of an "extent of the injury" rule would allow courts to recognize genetic or cellular damage as injury, and provide some hazardous waste victims with a remedy for their increased risk of disease. In Part III a better solution is proposed—accepting increased risk as an actionable injury. This approach, which will ensure recovery for all hazardous waste victims, has several practical benefits and is supported by existing legal doctrine. Finally, Part IV recommends two forms of judicial relief, a damage award for probable out-of-pocket expenses, and court-ordered purchase of insurance coverage for hazardous waste victims. An insurance remedy is proposed because it is uniquely tailored to the increased risk injury.

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