Hormesis and toxic torts: traditional torts and claims for subclinical harm

Abstract

This article explores the implications of hormesis on toxic tort litigation, in particular litigation regarding claims for medical monitoring or subclinical harm. In considering medical monitoring issues, courts have described medical monitoring both as a remedy and as an independent claim. If medical monitoring is upheld as an indepedent claim - as opposed to a remedy awarded after negligence or another claim is plead and proven - the article explains that the evidentiary showing necessary to succeed on the medical monitoring claim may be less rigorous than would be the case if the issues were considered separately. Because hormesis by definition involves low dose exposures that are more likely to involve subclinical harm, exposure evidence that includes a hormetic effect may well become an issue in medical monitoring cases, and may complicate an already confusing doctrine.