CaliforniaThere are a number of lawsuits, pending in various jurisdictions around the United States, based on the alleged toxicity of diesel exhaust. The largest numbers of these cases involve plaintiffs in, or formerly in, the mining and railroad industries. This is because the highest levels of diesel exhaust exposure are typically found in occupational settings associated with mining, railroads, ships, etc. Cases are not, however, limited to occupational exposure. In one of the more highly publicized actions, the State of California brought a lawsuit against terminal operators under California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) alleging failure to warn residents and other persons living and/or working at or near the Ports of Los Angeles and Long Beach.

cruise-smokeThe thrust of these lawsuits is typically that diesel exhaust is a complex mixture of gas constituents and particulate matter allegedly related to a number of health problems. Diesel exhaust is, according to the claims, known to contain over 9,000 chemical compounds, many of which are purportedly carcinogenic. Lawsuits brought by a number of plaintiff law firms allege a variety of types of cancer, as well as pulmonary and immunologic problems, allegedly arising from prolonged exposure to diesel engine fumes.

world-health-organization-logoThe International Agency for Research on Cancer (IARC), an intergovernmental agency that is part of the United Nations World Health Organization, jumped into the fray in June of 2012 by declaring that diesel exhaust is carcinogenic in humans. In particular, IARC found that exposure is associated with an increased risk of lung cancer. Has this highly publicized determination resulted in a substantial increase in diesel exhaust litigation, or is it likely to do so in the future?

Experience so far seems to indicate that the IARC findings have not significantly increased the number of diesel exhaust claims. This is probably because various government agencies in the United States have designated diesel exhaust as carcinogenic for 20 years or more. In addition, the declaration itself does not change the burden of proof. It is still the plaintiff's burden to prove that his or her ailment was, in fact, caused by exposure to diesel exhaust. The general finding by IARC does not affect that burden.

It is reasonable to expect that there will be ongoing battles between attorneys on both sides to put before the jury (or prevent the jury from hearing) the IARC finding. In short, it is reasonable to expect that, as with so many other medical and scientific issues in the toxic tort field, the IARC findings represent one more battle in the ongoing war.

Christopher M. McDonaldRudy R. PerrinoFeel free to contact the authors with any questions:

Partner - Orange 
Christopher M. McDonald at
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Partner - Los Angeles
Rudy R. Perrino at
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Or any WFBM attorney with whom you are working.