Reference no: EM133327128

Case Study: This incident occurred in New York, and might be pursued in EITHER New York OR Federal court. Six children in the same Bronx neighborhood have developed a rare and often fatal form of leukemia within the past year. Their parents became acquainted at the local hospital where the children were being treated, and began comparing experiences in an effort to identify the cause of the cancer. They determined that the only place that all of their children regularly played is a vacant lot on the edge of the neighborhood. The fenced-off lot, seized by the city five years ago for non-payment of taxes, had formerly been used as an illegal dumping ground for low level nuclear waste. The former owner of the lot is Toxico, Inc.,a manufacturer of radioisotopes used as "tracers" for medical diagnosis. Toxico, which has since relocated abroad, buried a batch of radioisotopes in the lot ten years ago in violation of state and Federal environmental laws that provide for both Civil and Criminal penalties for improper disposal of toxic waste. The product was too radioactive for medical use, and was of no commercial value. The product had been encased in containers that were expected to contain the radioactivity for about fifty years, but Geiger counters show that some radioactivity was being emitted from the containers.The families consulted a learned and well-credentialed biophysicist. She believes that the children's cancers were probably caused by the radioactivity in the vacant lot. Her opinion is based mainly upon the high statistical incidence of this rare cancer in the same neighborhood, and also upon animal studies which suggest that the measured radiation level in the abandoned lot is capable of causing cancerous growths in children.However Toxico consulted three more eminent and well-credentialed biophysicists who believe that there is insufficient scientific evidence that the low-level radiation in the lot is capable of causing cancer. They say that the maximum radiation exposure is comparable to a dental X-Ray. These experts believe that further, costly studies would be necessary to establish a valid causal link between the radiation and the cancers.

QUESTION: You are an attorney whom the parents have consulted. Based upon the New York and Federal Rules of Evidence, Daubert and Wesley, advise the parents of the prospects of maintaining a civil suit and a criminal prosecution against Toxico in both New York and Federal courts.