Toxic Torts

Continued from: Chemical & Toxin Injury Cases

Case Complications & Class Actions

Causation Problems

Outside of potential statute of limitations issues, the single biggest hurdle for a plaintiff in a toxic tort case is the problem of causation. When a personal injury action is brought, the plaintiff has the legal duty of showing that whatever it was the defendant did was the immediate cause of harm, and that the harm wouldn't have occurred (or been as serious) if the defendant had not acted in the manner asserted. For instance, the plaintiff would need to prove that the toxins in the water caused cancer, and that cancer would not have developed if the toxins hadn't been there.

From this explanation alone, it is easy to see why there are causation problems in a great many toxic tort cases. Things that often develop from toxic exposure- like various types of cancer in the case of asbestos and many chemicals, or like breathing or respiratory problems in the case of many molds- may not be easy to trace back to one cause. For instance, if you get throat cancer, of course you could argue that it came from drinking the contaminated water. Unfortunately, since no one really knows what causes most types of cancer, and since there are often a myriad of causes for cancer, the defendant could easily point out that you don't know that it was the exposure to the toxin that made you sick. This is a problem in many toxic tort cases, with the exception of asbestos cases where a person develops mesothelioma, since that condition develops only as a result of asbestos exposure.

Compounding the problem of the fact that many of the diseases caused by toxic exposure have many causes is the fact that many of these diseases often do not show up for a long period of time after the exposure happened. For instance, you might take a defective drug that causes a heart murmur but not actually develop the heart murmur until much later. This is the same thing that creates the statute of limitation problem, but for causation, the problem is that the more distance between the incident and the injury, the harder it is to prove a direct link. It is, naturally, a lot harder to prove that "more likely than not, drinking this water 10 years ago caused my breast cancer today" then it is to prove "he hit me with his car, I broke my leg."

Getting Around Causation Problems

While causation problems are an issue, they do not necessarily disqualify you from bringing toxic tort claims. A few things can help you to get around causation problems including:

• Clear medical testimony from experts linking the toxin and the illness
• Evidence of the exposure in the first place (like pictures of the mold, or old records from the company that show that they were dumping chemicals)
• A high incidents of similar illnesses in people who suffered similar exposure (like a whole town having a much, much higher rate of developing a certain kind of cancer if they lived near a dump where a company was depositing hazardous wastes)
• FDA or other product recalls or public warnings about the dangers of the specific drug or product.

In general, the more linking evidence that you can find, the better and more solid your chances of being able to recover successfully for a toxic tort claim.

Class Actions

One of the factor that can help you to get around causation problems- the high incidence of certain types of illnesses- also plays another important role in toxic tort litigation. The fact that many people often develop the same or similar problems because of exposure to some toxin can lead to a large number of toxic tort cases being handled as class actions. Class actions are cases where a group of similarly harmed plaintiffs all get together in one big lawsuit instead of every single one of them filing their own case. The purpose is to allow for plaintiffs to recover more easily without each having their own trial, and to avoid wasting the court's time hearing case after case on the exact same issue.

Class actions usually work by first having all of the plaintiffs certified as a class. There is a lead plaintiff who speaks for and makes decisions (with the help of lawyers, etc.) on behalf of all plaintiffs. This lead plaintiff or group of lead plaintiffs are the ones who go to court regularly, although other plaintiffs may be called upon to testify as well. When a class action is settled or when a class action case is won by plaintiffs in court, damages are split among the involved lawyers and among all the plaintiffs involved. This is usually done using some formula where people who suffered different levels of harm are given different set amounts of compensation.

Class action litigation often forces companies who have done something bad to settle the case, for fear of bad publicity and big verdicts. This can help to mitigate causation problems for plaintiffs who are able to recover through a settlement without actually having to go through the full process of conclusively proving causation.

Well Known Class Action Toxic Tort Cases

Because toxic tort cases are often on a grand scale, they can become rather famous incidents. In fact, some have been made into movies. For instance, the movie Erin Brockovich was a movie about a class action lawsuit called the Hinkley case brought against PG&E for the knowing contamination of drinking water with hexavalent chromium. The 1998 movie A Civil Action was another movie about a toxic tort case, this time about a toxic waste dump that led to water contamination in Woburn, Massachusetts. Both of these movies were true stories that showed the difficulty of bringing a toxic tort case, but they were cases in which the plaintiffs triumphed.

Many other famous cases and large scale class action lawsuits have also been brought that haven't been turned into full-feature cinema pictures. Love Canal litigation is one such example. Asbestos litigation, Vioxx lawsuits, and numerous other famous lawsuits have also netted plaintiffs well-deserved compensation, and some claims continue to be made to this day.

Toxic tort cases are perhaps the single most difficult and legally complex of personal injury cases. If you believe you have been injured by exposure to a toxin, you should absolutely not try to handle the legal problem on your own. Get a qualified lawyer who is experienced in toxic tort cases involved as soon as possible so you can make sure you preserve your right to sue and do everything in your power to win.

Next Steps

9. Wrongful Death
10. Comparative and Contributory Fault
11. Damages in Personal Injury Law

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