Toxic torts are social wrongs in which someone is injured through exposure to a toxic substance, such as a pesticide, chemical, or pharmaceutical. Often, chemicals believed to be safe and used in manufacturing prove to be dangerous, or substances leak into the air or groundwater, affecting unsuspecting residents of the area. Toxic tort lawsuits may be brought on behalf of individuals or a group.
In the Movies
The movie Erin Brockovich tells the story of the legal assistant’s 1993 battle against a power company that poisoned the surrounding land’s groundwater, a toxic tort.
Toxic tort class action lawsuits are fought on behalf of groups of people exposed to and hurt by dangerous substances. For example, residents of a condominium complex may file a complaint against a local factory for contaminating the groundwater with chemicals that are causing their children to suffer illnesses. Or, for example, a group of construction workers who develop asbestos-related illnesses may file a toxic tort class action based on their exposure to asbestos on the job. Similarly, a neighborhood association may sue an oil refinery for contaminating groundwater near their homes with benzene, resulting in multiple residents developing leukemia.
Generally, a toxic tort plaintiff will need to prove that a chemical or other substance was dangerous, that the plaintiff was exposed to that substance, causation, and injuries. Plaintiffs can pursue toxic tort claims using theories of negligence, strict liability, or fraud.
Negligence claims may be based on negligent conduct, or it may be based on a negligent failure to warn or investigate the potential harms of using a chemical. For example, a refinery that fails to enact appropriate procedures to prevent chemicals from flowing into the groundwater can be held liable for being negligent. Similarly, a drug manufacturer that fails to give adequate warnings may be found negligent. When strict liability applies, it tends to be easier to prove than negligence. In a strict liability case, the plaintiff does not need to show that the defendant’s actions fell below a particular standard but must only prove a defect, an injury to the plaintiff, and that the injury was caused by the product because of the defect.
Fraudulent claims usually hinge on a defendant’s knowledge that a substance was dangerous if the defendant concealed that danger or marketed the substance with misleading statements that suggested the product was safe. In such cases, the plaintiff will need to prove that the defendant had a duty to disclose toxic chemical hazards. This duty is often imposed by federal or state statutes.
Causation and Toxic Tort Litigation
The most difficult element to prove in toxic tort litigation is causation. Many illnesses caused by exposure to a toxic substance manifest years after exposure. One prominent example is mesothelioma, which takes decades to develop, by which time crucial pieces of evidence may be lost and the defendant company may be out of business. A defendant may argue that the plaintiff was exposed to other intervening chemicals that caused the harm.
Generally, plaintiffs must sue any entity that could have a possible link to their injuries. This includes manufacturers, distributors, property owners, and companies that store chemicals. For example, a plaintiff may not know what entity actually manufactured the asbestos that he or she was exposed to at different job sites that caused his or her mesothelioma. Plaintiffs usually need to bring all of them into the lawsuit to investigate and sort out causation.
Toxic tort litigation relies heavily on scientific expert testimony and other evidence that links a substance to the health condition or disease suffered by the plaintiff. Generally, these lawsuits rely heavily on scientific studies, so even if a particular chemical was not previously considered harmful, if a study is published that links the chemical to a disease, it may be possible for a plaintiff to obtain redress.
Toxic Tort Rules Vary
Some states have developed very specific rules for toxic tort litigation, including evidence gathering and causation. Many have particular statutes of limitations for each toxic tort. An attorney experienced in toxic torts may be able to offer guidance for individuals considering litigation.