Toxic Torts

Injury Cases Stemming from Chemicals & Toxins

Personal injury law is a very broad field of law that covers many situations where one party is harmed by another. Sometimes, it is very easy to see exactly what happened and how the harm occurred. For instance, when a car accident occurs and one party hits another, a direct link can be drawn between the impact of the collision and the injuries that show up immediately after. In other cases, things become more complicated because injuries might not happen quite so visibly or might not occur so immediately. Nowhere is this more true than in most toxic tort personal injury cases.

What is a Toxic Tort?

Toxic tort cases actually refer to a group of different types of tort cases that have one main thing in common: the plaintiff alleges he was harmed by exposure to some kind of toxin (or chemical). Some specific instances where a plaintiff might be exposed to a chemical include:

1. Contamination of groundwater or soil due to dumping of wastes and chemicals
2. Contamination of air/environment due to release of noxious gases or toxins
3. Exposure to mold (especially dangerous types of black mold)
4. Asbestos exposure
5. Lead paint
6. Toxins or dangerous chemicals in defective medications/drugs (often handled as a product liability case)

These are just a few examples of situations where a person is exposed to a toxin. These examples, and other types of toxic exposure, may happen because of where a person lives, where he works or because of the medications he is prescribed.

Who is Responsible?

When a toxic tort case is brought, the party who should be held responsible is the one who caused the exposure to the toxic tort. This may be the company who dumped the pollutants in the groundwater, the manufacturer of the asbestos, the landlord who didn't properly make sure the apartment was free from mold or lead paint, or the manufacturer of the toxic drug. Doctors are not generally held responsible for toxic tort drug cases (although sometimes they can be) because it often wasn't negligent of them to prescribe the drug if it was FDA approved and the standard accepted treatment method for some condition. The problem in such cases lies not with the doctor, but instead with the manufacturer of the drug who didn't make sure it was absolutely safe or warn of all side effects.

How to Make a Claim Against the Responsible Party

Those who are affected by toxic torts can usually recover damages through a personal injury lawsuit, but not always. The major exception to the ability to recover through a civil lawsuit is when a worker is injured by a toxin at work. Although his or her employer may have been directly responsible for the exposure that occurred, work-related injuries are not handled through the civil tort system. Instead, all of the 50 states in the US have passed workers compensation legislation that creates an exclusive remedy system.

Workers in this system who are covered by workers comp must not sue their employers but instead have to recover the statutory damages (including medical bills, lost income, disability benefits, funeral expenses, etc.) from the workers comp insurance program. This may seem limiting- and it is- but the major benefit is that negligence isn't a factor in worker's comp so the worker does not have to show the employer was negligent like he would have to in a personal injury case. Instead, it's enough to show the injury happened at work.

While workers comp forecloses lawsuits against employers, if a worker was injured by something like asbestos, which was manufactured by a third party, then the worker may be able to make a claim against that asbestos manufacturer in a standard civil suit. This, while workplace exposure might not lead to a right to sue an employer, it can and does still lead to a right to a civil suit in some cases.

The Statute of Limitations

Claims for personal injury damages generally must be made within a set period of time after an injury or incident has occurred. This is usually a period of two or three years, although in some states it can be longer or shorter.

One big issue that comes up in toxic tort cases often is that the injury may not manifest right away. For instance, someone might be exposed to groundwater that has been contaminated and may develop cancer, but not until 10 years later. A person could take a defective drug and only after he's been on it for 6 years might he discover that it causes heart problems. To deal with this problem, many states have something called a "discovery rule." Essentially, under this rule, these types of cases do not start the statute of limitations ticking until the injury is known or reasonably should have been known. In other words, if you got mesothelioma from asbestos exposure, the statute of limitations would not start at the time of the exposure but would instead start at the time when your mesothelioma was diagnosed.

What Do You Have To Prove?

Assuming that you are legally eligible to file a lawsuit and you wish to make a claim against the party who was responsible in the toxic tort action, there are several essential things that are required to be proven in the case. You need to:

1. Prove the party owed you a legal duty.

This is usually pretty easy- you can prove your landlord had a duty to provide you with a safe and habitable environment free of lead paint or mold; that your drug company had a duty not to make products that could seriously harm or kill you without warning you of any dangers; and that companies had a duty not to dump chemicals into the ground to contaminate wells and land.

2. Prove the legal duty was breached.

This, too, is often easy. The standard is going to vary based on the kind of case, however. Negligence is common and will look at whether a reasonable party may have been more careful. Evidence that a company broke the law, such as those companies who dump chemicals in violation of EPA regulations like CERCLA, and/or various clean air and water acts, can be good evidence of a breach of duty. If the claim is based on a defective drug, then strict liability might be used instead of negligence and will result in a defendant being considered to have breached his duty if there was a defect in the product even if the defendant wasn't careless.

3. Prove the breach of duty caused you harm.

This involves proving that the breach of legal duty was the direct, or proximate cause of the harm you are claiming to have suffered. This is often the most challenging aspect of any toxic tort claim.

4. Prove that you really did suffer harm and to what extent.

This last step involves showing that you incurred an injury, had to pay medical bills, had to miss work, suffered pain, suffered emotional distress, and/or suffered other compensable damages for which money can be paid to compensate you.

The burden is on the plaintiff in a toxic tort case to prove all of these things. A defendant has no legal requirement to disprove them, if a plaintiff is not successful in showing by a preponderance of the evidence (aka most likely) that all of these elements are true.

Continued: Toxic Torts: Page 2

Next Steps

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

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