Toxic Torts: An Overview

Author: Kelly Denham

A toxic tort is a legal claim for harm caused by exposure to a dangerous substance.  Typically, a plaintiff claims exposure to a chemical caused the plaintiff’s injury or disease. Toxic torts can arise out of a wide variety of factual situations, such as exposure to air, land, and groundwater contaminated with hazardous substances.  Many traditional theories of tort liability and defenses may be utilized in toxic tort cases.

Toxic tort cases tend to have certain characteristics. First, the plaintiff will typically allege his injuries arose from exposure to a harmful substance.  There may be little direct evidence of exposure to the harmful substance.  The plaintiff will claim the nature of the exposure posed a significant risk that a large number of people suffered or may suffer comparable injuries.  There may be a dormant period between exposure and manifestation of the plaintiff’s injury.

The most difficult aspect of a toxic tort case is the issue of causation. Proving exposure to a chemical is the biggest hurdle a plaintiff must overcome.  The causal connection between the exposure and the plaintiff’s injuries is often open to reasonable dispute because the exposure may be a sufficient but not necessary cause of the injuries, a necessary but not sufficient cause of the injuries, or neither a necessary nor sufficient cause of the injuries.  Plaintiff has the legal duty of showing the defendant was the cause of plaintiff’s harm, and the harm would not have occurred if the defendant had not acted in the alleged manner. For example, a plaintiff bringing a toxic tort claim would need to prove the toxins in the chemical caused leukemia, and leukemia would not have developed if the toxins had not been in the chemical.  The identity of the particular party responsible for the agent allegedly causing the injuries may be difficult to establish because many manufacturers or generators produce indistinguishable products.

The scientific and medical evidence, such as epidemiological studies, used to establish causation is often complex and subject to varying interpretations.  However, the use of scientific evidence is one of the most helpful ways to deal with causation issues, from both the plaintiff and the defense side.  The plaintiff will need clear medical testimony from experts linking the toxic chemical and the illness or injury.  From the defense aspect, medical testimony disputing the plaintiff’s alleged exposure is vital to disqualifying a plaintiff’s claim.

For example, the defense may hire an industrial hygienist to characterize the plaintiff’s exposure and look at the expected exposure to the plaintiff.  If the plaintiff claims he or she was exposed to toxic chemicals in the workplace, an industrial hygienist may look at the relevant time period when the plaintiff was employed at the workplace.  He might look at the levels of exposure and what products were responsible for the alleged exposure.  The industrial hygienist would look at the safety guidelines in the facility and whether any protective equipment was used.  The industrial hygienist then works hand in hand with a medical toxicologist to determine whether the amount of exposure (if any) could have caused the plaintiff’s injuries or illness.

Toxic tort claims can be very arduous and complex.  At the outset of the case, it is important to determine the alleged toxin, whether it is a chemical from a pharmaceutical, consumer product, or from the work or home environment.  Early opinions from a medical expert will help uncover whether the alleged chemical could have been a factor or cause of the plaintiff’s injuries.  If the chemical could not have caused plaintiff’s injuries, it could lead to early resolution of the case!

ABOUT THE AUTHOR: Kelly Denham graduated from Loyola Law School in 2012.  Ms. Denham’s primary focus at Tyson & Mendes is personal injury, professional liability and employment litigation.  Contact Kelly at 858.263.4117 or kdenham@tysonmendes.com.

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