New York partner William A. Ruskin, a member of Gordon & Rees's Environmental/Toxic Tort Practice Group, provided insight on the potential litigation impact of newly published health studies as they relate to the defense of fracking litigation in "New Fracking Studies Not Fueling Toxic Tort Cases—Yet," an article which appeared in the November 22, 2016 issue of the Bloomberg BNA Toxics Law Reporter. Ruskin has been defending just these types of toxic tort and nuisance cases on behalf of industrial and oil services companies for more than thirty years.
The article references current scientific studies which suggest that chemicals used during the fracking process may pose serious health risks including disrupting hormones, reducing fertility, releasing cancer-causing radon gas and aggravating asthma. Although these new health studies suggest an association between chemicals used in fracking and various categories of ailments, Ruskin observes that these studies do not provide plaintiffs a clear litigation path forward.
Despite some of these studies are "significant" from a public health perspective, Ruskin says that their utility in litigation is questionable as these studies often rely on participants' self-reported symptoms, which may be due to other causes. Adding to this, Ruskin identifies another challenge: "These studies are region- or site-specific, so a study that finds a reaction in one region may not be probative because there are so many different regions of the country using so many different types of processes."
He also explains that the inordinate expense in bringing these claims may explain why there has not been a great deal of fracking cases filed: "These cases are extremely expensive cases to bring. The upfront money needed to launch a toxic tort case involving a one-off plaintiff is prohibitive." The article expands on Ruskin's insight by adding that the “plaintiffs must have reliable scientific proof that a given driller's activities, and not other sources of toxins, caused the specific contamination at issue and any resulting illness.”
To read the article in full, please click here.