Toxic Torts

In 2021, the 55 US poison control centers provided telephone guidance for over 2.08 million human poison exposures. That translates to 6.1 poison exposures per 1,000 inhabitants.

The scale and impact of toxic exposure are undeniably significant and alarming. Every year, thousands of individuals are affected by exposure to toxic substances, often without their knowledge, leading to serious health consequences and lengthy legal battles.

(Poison)

Understanding Toxic Torts

Toxic torts are a category of legal claims arising from exposure to dangerous substances, chemicals, or environmental hazards.

These cases typically involve plaintiffs who claim to have been harmed by exposure to toxic materials, such as asbestos, lead, chemical spills, or pharmaceutical drugs. Toxic torts present a way for individuals to seek justice and compensation for the injuries and illnesses arising from these exposures, which can often be severe and life-altering.

By holding companies and entities accountable for their negligence or failure to warn about the dangers associated with their products or activities, toxic tort cases not only provide a means of financial relief for the affected parties but also serve as a critical mechanism for enforcing public safety standards and regulatory compliance.

As such, toxic torts are an essential aspect of environmental and public health law. They ensure that those harmed by corporate and industrial practices have a path to redress and that similar harms are mitigated in the future.

The Basics of Toxic Tort Law

The US toxic tort law, as we know it today, took its shape during the industrial boom of the 20th century, a period marked by increased exposure to industrial chemicals and waste.

The widespread exposure to hazardous substances led to a surge in health problems and environmental damage across communities, underscoring the need for a more robust legal framework.

One of the biggest cases that led to the rapid development of environmental laws and toxic tort claims was the Love Canal disaster, discovered in 1978. After the toxic waste leakage in Niagara Falls, New York, residents faced severe health issues and environmental harm.

The catastrophe revealed the inadequacies of existing laws and acted as a catalyst for major legal and regulatory reforms, including the strengthening of toxic tort claims. The reforms spurred by the Love Canal incident aimed to better address the complex damages often associated with environmental and industrial exposures.

Today, toxic tort law serves as a crucial link between civil law and environmental regulation. It enables individuals and communities to pursue legal action for damages that are difficult to quantify scientifically.

The field of law has been instrumental in tightening regulations on hazardous substances and has driven public policy toward a more proactive approach to environmental and public health issues, ensuring that polluters are held accountable.

What Distinguishes Toxic Torts from Other Types of Torts?

Just like all tort cases, toxic tort lawsuits involve allegations of wrongful actions that cause harm and plaintiffs who seek compensation for injuries or losses due to another party's negligence.

However, toxic tort law possesses unique characteristics that set it apart from other branches of tort law. Namely, toxic tort cases often involve complex scientific evidence to prove causation and typically impact large groups of people, sometimes leading to mass tort litigation.

Additionally, the harms associated with toxic torts often have long latency periods, and multiple parties can be involved in the litigation due to the nature of chemical production and distribution.

That said, one of the biggest distinctions between toxic tort law and other types of tort law lies in its reliance on both statutory and common law frameworks.

Toxic tort law is intricately connected to environmental and public health regulations, which are largely statutory. Statutes provide specific rules and standards that dictate how substances should be handled and what constitutes a legal violation, such as limits on emissions or requirements for chemical labeling.

These statutory frameworks are complemented by common law principles, which develop through judicial decisions.

This means that courts interpret statutes and apply common law doctrines such as negligence and strict liability to determine liability in toxic tort cases.

The dual dependence of toxic tort law is crucial because it allows courts to adapt legal principles to the complexities of modern industrial society and its associated environmental challenges.

Types of Toxic Torts

While all toxic torts involve seeking liability for harm caused by exposure to chemicals or dangerous substances, based on the setting of the exposure, they can be divided into four main categories.

Environmental

Environmental torts address cases where toxins have been released into the air, water, or soil, typically resulting from industrial activities. Such pollution can come from factory emissions, chemical spills, or the mishandling of waste, leading to significant environmental degradation and damage to ecosystems.

Residents in the affected areas are often the ones who bear the brunt of these actions, suffering from a range of health issues like respiratory problems, cancer, or other chronic conditions due to their exposure to these toxins.

These lawsuits are frequently initiated by the very residents who experience these health issues, seeking to hold the polluters accountable for their actions.

These legal actions are essential not only for compensating those affected but also for enforcing environmental regulations and ensuring that contaminated sites undergo proper cleanup, thereby preventing further harm and safeguarding public health.

Occupational

Occupational toxic torts emerge from situations where workers encounter hazardous substances in their work environments. These exposures often involve materials like asbestos, chemicals, and other toxic agents that are used or produced in industrial settings, usually without adequate safety measures or protective gear.

The lack of proper safeguards can result in serious health conditions for workers, including mesothelioma, asbestosis, and various chemically induced illnesses.

As a result of these dangerous exposures, affected workers may choose to file claims against their employers or the manufacturers of the hazardous materials. These legal actions typically argue that the employers or manufacturers failed to implement adequate safety protocols or did not provide the necessary warnings about the risks associated with handling these substances.

Such claims aim not only to secure compensation for the injured workers but also to enforce improvements in workplace safety standards, ensuring better protection for future workers.

Pharmaceutical

Pharmaceutical toxic torts arise when patients suffer adverse health effects from medications that manifest unexpected or severe side effects.

Typically, these legal cases center on allegations that drug manufacturers did not provide sufficient warnings about the risks tied to their products or that the drugs were defectively designed or improperly manufactured.

Plaintiffs in these cases pursue compensation for the injuries they've sustained, contending that the pharmaceutical companies either failed to conduct adequate testing or did not fully disclose the potential dangers to consumers and healthcare providers.

This area of toxic torts plays a pivotal role in maintaining the safety and efficacy of medications. By holding manufacturers accountable for the impacts of their products on patient health, these cases not only seek justice for affected individuals but also aim to enforce rigorous safety standards in the pharmaceutical industry, thereby protecting future patients from similar harm.

At-Home

At-home toxic torts occur when individuals are exposed to hazardous substances within their own living environments. Common sources of such exposure include toxic mold, lead paint, carbon monoxide, and other dangerous chemicals that can be present in consumer products or building materials.

Residents subjected to these hazards may suffer from severe health conditions, such as respiratory problems triggered by mold or neurological issues due to lead exposure.

Lawsuits in this category often arise when manufacturers, landlords, or builders fail to ensure safe living conditions or neglect to adequately warn residents about the risks associated with these substances.

These legal actions are critical for protecting consumers by ensuring that residential environments are safeguarded from harmful exposures. They hold responsible parties accountable for their negligence or their failure to meet safety standards, thus upholding the rights of residents to a safe and healthy living space.

Legal Foundations and Litigation

To be eligible to file a toxic tort claim, individuals typically need to demonstrate that their injury or illness is directly connected to exposure to a hazardous substance due to the actions or negligence of another party.

Here are some key legal grounds on which a toxic tort claim can be based:

• Negligence

Negligence is the most common basis for toxic tort claims. It occurs when a party fails to act with reasonable care to prevent exposure to harmful chemicals or substances. To prove negligence, claimants must prove that the defendant had a duty to protect them from harm, breached that duty, and suffered damages as a result.

• Strict Liability

Under strict liability, a defendant can be held responsible for damages without the need to prove negligence. In the context of toxic torts, this often applies to manufacturers and distributors of harmful chemicals or products. If these substances cause injury, the manufacturer may be held liable simply because they introduced the hazardous product into the market.

• Intentional Misrepresentation

Intentional misrepresentation is used as a basis for a toxic tort lawsuit when a party knowingly misrepresents the safety of a product or fails to disclose known risks associated with it. If individuals are harmed as a result of these misrepresentations, they may file a claim for damages based on deceit or intentional harm.

• Breach of Warranty

Breach of warranty occurs when a product does not meet its expressed or implied guarantees of safety or performance. In toxic torts, plaintiffs may assert that a chemical product was inherently unsafe and failed to perform as safely as the manufacturer warranted, thereby causing exposure and resulting harm.

• Nuisance

Nuisance in toxic torts is invoked when the presence of a toxic substance interferes with an individual's enjoyment of their property. Claimants must demonstrate that the defendant's handling, storage, or disposal of toxic chemicals has created a harmful condition affecting their property or living environment.

• Trespass

Trespass applies in toxic tort cases when a harmful substance physically invades someone's property without their permission. This often involves contamination, such as pollutants entering the air, water, or soil of an adjacent property, directly resulting from the defendant's actions.

Individuals seeking to file a toxic tort claim should consult with legal experts to determine which of these grounds best fits their situation and to ensure that their case is properly documented and filed within legal deadlines.

Elements of a Toxic Tort Claim

To build a successful toxic tort claim, plaintiffs must clearly establish four essential elements, which form the foundation for proving liability and securing compensation or other legal remedies. Here’s a structured breakdown of these elements:

• Duty of Care

Initially, the plaintiff needs to demonstrate that the defendant had a duty to act or refrain from actions that would prevent harm. Specifically, in toxic torts, establishing a duty of care involves showing that the defendant was responsible for safely using, handling, storing, or disposing of a chemical or toxic substance and ensuring it does not cause harm to others.

• Breach of Duty

Once a duty of care is established, the plaintiff must prove that the defendant breached this duty. Such a breach may manifest in various ways, such as negligence, failing to adhere to safety regulations, improper handling of toxic materials, or neglecting to warn about the risks associated with a product or chemical.

• Causation

The core of the toxic tort claim hinges on causation. The plaintiff must link the defendant’s breach of duty directly to the harm incurred. Establishing causation requires showing that exposure to the toxic substance was the direct cause of the injury or illness. Proving causation is often the most challenging aspect of toxic tort cases due to the need for detailed scientific evidence that connects specific chemical exposures to particular health outcomes.

• Damages

Finally, the plaintiff must demonstrate that they suffered actual damages due to the exposure. These damages can be varied, including medical bills, loss of income, pain and suffering, and other forms of physical, emotional, or economic harm.

Proving a Toxic Tort Claim

Successfully establishing these four elements in a toxic tort case demands substantial evidence and often involves complex scientific data and expert testimony. Here’s a breakdown of the types of evidence commonly needed to support the plaintiff’s allegations:

• Medical Records: Documentation of the plaintiff's medical diagnosis, treatments, and prognosis that link health issues directly to the toxic exposure. Medical evidence is critical for establishing the nature and extent of injuries or illnesses caused by the toxin.
• Scientific Studies: Research or studies that demonstrate the harmful effects of the toxin in question. These studies can help establish causation by showing that the substance is capable of causing the health issues experienced by the plaintiff.
• Expert Testimony: Testimony from medical experts, toxicologists, or other specialists who can discuss the toxicity of the substance, its potential health impacts, and the link between the defendant’s actions and the plaintiff's injuries. Expert witnesses play a crucial role in interpreting complex scientific data for the court.
• Employment and Environmental Records: Documentation from the plaintiff's workplace or environmental reports from the area where exposure occurred. These records can prove the presence of toxic substances and the likelihood of exposure.
• Witness Testimony: Statements from individuals who can attest to the conditions that led to exposure or corroborate the plaintiff's account. This includes coworkers, residents, or other affected parties.
• Documentation of Safety Violations: Evidence of the defendant’s failure to adhere to relevant safety regulations or warnings that could have prevented the exposure. This helps establish negligence or a breach of duty.

Due to the intricate nature of linking exposure to specific health outcomes, having a specialized legal expert is absolutely necessary in toxic tort cases. Legal experts not only streamline the challenging process of evidence collection and presentation but also maximize the chances of a successful outcome by effectively arguing the case in court.

Proving Causation

Proving causation in a toxic tort case is often the most challenging and critical aspect, as it requires establishing a clear and direct link between the defendant's actions (or inactions) and the plaintiff's injuries. To successfully demonstrate this link, there are two key aspects that need to be met:

• General Causation, which involves establishing that the toxin in question is capable of causing the type of harm or disease experienced by the plaintiff, generally supported by scientific research and studies. This evidence must show that the toxin has a known potential to cause similar health effects in others under comparable circumstances.
• Specific Causation, which focuses on demonstrating that the plaintiff was indeed exposed to the toxin in question and that this specific exposure caused their particular health issues. This often involves detailed evidence of the plaintiff's exposure levels, duration, and proximity to the source of the toxin.

Together, these two aspects form the foundation for proving causation in toxic tort cases, ensuring that there is a scientifically valid link between the harm and the exposure, both specifically to the plaintiff and generally as recognized in the broader scientific community.

Challenges in Toxic Tort Cases

Toxic tort cases are inherently complex and challenging to litigate due to their dependence on detailed scientific evidence, the formidable defenses mounted by defendants, and the strict legal timing constraints they are bound by.

Each of these aspects introduces specific hurdles that plaintiffs must overcome to successfully pursue their claims.

Reliance on Scientific Evidence

One of the primary challenges in toxic tort cases is the heavy reliance on scientific evidence to prove both general and specific causation.

Plaintiffs must use scientific studies and expert testimony to demonstrate that the toxin in question can cause the type of injury or illness they suffer from and that their specific exposure to this toxin at a particular level and duration directly caused their condition.

To do that, they must:

• Have access to high-quality, often expensive scientific expertise.
• Have the ability to translate complex scientific data into evidence that is comprehensible and compelling to a jury.
• Navigate scientific uncertainties or conflicting evidence which the defense may exploit to challenge the causation link.

This heavy burden of proof makes establishing causation in toxic tort cases more intricate and demanding than in other types of tort cases, where causation may be more straightforward and less dependent on specialized knowledge.

The Defense’s Strength

Defendants in toxic tort cases often have significant resources at their disposal, including teams of lawyers and expert witnesses skilled in challenging both the scientific evidence presented and the credibility of the plaintiff’s claims. The defense strategies might include:

• Introducing alternative theories regarding the sources of exposure or causes of the plaintiff’s illness.
• Disputing the validity or interpretation of scientific studies and data.
• Questioning the qualifications or biases of the plaintiff’s expert witnesses.

These robust defenses can significantly complicate the plaintiff's efforts to establish a clear and convincing case, making it essential for plaintiffs to have equally strong legal representation and expert support.

Statutes of Limitation and Statutes of Repose

Legal timing constraints such as statutes of limitation and statutes of repose pose additional challenges in toxic tort cases. These laws limit the time within which a plaintiff can file a lawsuit after an injury occurs or after they discover, or should have discovered, the injury:

• Statutes of Limitation: Often require plaintiffs to initiate legal action within a few years of the injury or discovery of the injury. The challenge here is that many toxic exposure effects take years to manifest, potentially outlasting the statute of limitations.
• Statutes of Repose: Provide an absolute cut-off period that limits liability after a certain time post-exposure, regardless of when harm is discovered. This can unjustly bar plaintiffs from seeking redress if the harm manifests after the repose period has expired.

These timing constraints require careful legal scrutiny and timely action by plaintiffs and their attorneys to ensure that the right to sue is not lost due to technicalities.

Addressing these challenges demands thorough preparation, strategic litigation, and adept handling of complex scientific and legal issues. The intricate nature of these cases underscores the importance of skilled legal representation to navigate the hurdles and advocate effectively on behalf of those harmed by toxic exposures.

Notable Toxic Tort Cases

There have been several significant toxic tort cases that captured public attention and shaped legal precedents in the US legal system. These cases often involved large-scale environmental disasters or widespread health crises linked to toxic exposures, highlighting the intricate relationship between industrial practices and public health.

Here are some of the most impactful toxic tort cases in recent history:

• Sterigenics Ethylene Oxide Emissions Case (2018–2023)

Sterigenics, a sterilization company near Chicago, was involved in a major toxic tort case due to its emission of ethylene oxide, a known carcinogen, from its facilities. In August 2018, a federal report indicated an elevated cancer risk in the community due to these emissions.

The case culminated in a record $363 million verdict in 2023, the largest in Illinois history for a single plaintiff, highlighting the severe impact of corporate environmental negligence​

(ABAJournal)

• EzriCare Artificial Tears Lawsuit (2023–ongoing)

In 2023, EzriCare Artificial Tears were recalled after being linked to a dangerous bacteria. The contaminated eye drops caused serious infections in some users, leading to vision loss, hospitalization, and even death.

A wave of lawsuits followed, with individuals suing for compensation for their injuries and others filing class actions seeking refunds for those who bought the product.

These lawsuits alleged that EzriCare failed to properly ensure the safety of the eye drops, resulting in harm to consumers. As of April 2024, the lawsuits are still ongoing and haven't reached a settlement or verdict.

(Forbes)

• Zantac and Cancer-Causing Chemicals Litigation (2019–ongoing)

Concerns arose in 2019 that Zantac, a common heartburn medication, might contain N-Nitrosodimethylamine (NDMA), a potential carcinogen. This sparked a wave of lawsuits against the drug manufacturers.

Individuals who used Zantac and developed cancer allege the companies knew or should have known about the NDMA contamination and failed to warn consumers.

The legal battle continues as of April 2024, with some manufacturers reaching settlements while others face ongoing lawsuits.

(SCIAM)

• Philips CPAP and Mechanical Ventilator Recall Litigation (2021–ongoing)

In 2021, Philips Respironics recalled millions of CPAP and ventilator machines due to concerns about the soundproofing foam degrading. This foam could potentially break down, releasing particles users could inhale or ingest, and might even emit harmful chemicals.

Lawsuits followed, with allegations that Philips knew or should have known about these risks and failed to warn consumers. The litigation seeks compensation for injuries and illnesses linked to the recalled devices.

As of April 2024, the lawsuits are ongoing, with a partial settlement reached to address economic losses but individual injury claims are still being litigated.

(SleepFoundation.org)

Pursuing Compensation Through a Toxic Tort Claim

Having already explained the challenges of establishing causation and liability in toxic tort cases, we would like to once again stress that pursuing compensation for a toxic tort case is very difficult. In addition to navigating the complexities of these litigations, it is very important to also strategically select the appropriate legal avenue, for your specific case.

Ways to File a Toxic Tort Claim

Depending on the circumstances around your particular case, you can opt for either individual claims or engage in mass tort actions, each with its own strategic advantages.

Individual claims are tailored to those uniquely affected by toxic exposure. They demand the plaintiff to independently prove their specific damages and causation directly linked to the defendant's negligence. This path offers a direct confrontation but often requires extensive resources to manage the complexities of such detailed litigation.

Alternatively, mass torts are often deemed more practical for scenarios affecting large groups, because they consolidate similar individual claims to streamline the legal process.

Multidistrict Litigations, or MDLs, are beneficial for handling numerous lawsuits that, while similar, may vary in specifics, such as the degree of injury. These are consolidated to optimize pretrial proceedings, enhancing efficiency and ensuring consistency across cases that share common factual issues.

Class Actions, on the other hand, pool a group of plaintiffs who have suffered similar harms from the same source into a single lawsuit. This type of litigation is especially effective in managing plaintiff groups too large for individual lawsuits, simplifying litigation, and potentially increasing settlement impact.

In any case, an experienced attorney can provide invaluable guidance on whether an individual lawsuit, an MDL, or a class action best suits your circumstances. Legal experts can assess the merits of your case, the potential for joining a larger group of similarly affected plaintiffs, and the likely outcomes of each legal path.

Their expertise can ensure you are well-positioned to achieve the best possible resolution for your claim, taking into account the complexities and challenges specific to toxic tort litigation.

Potential Liable Parties

In toxic tort cases, determining liability can be complex as multiple parties may be involved in the chain of events leading to exposure. Identifying the right defendants is crucial to formulating a successful legal strategy.

Here is a brief list of several potentially responsible parties that can be held liable in a toxic tort case:

• Manufacturers

Companies that produce toxic chemicals or products can be held liable if they fail to properly test for safety, fail to warn about the dangers of their products, or if the products are inherently hazardous. The liability often hinges on proving that the harm was foreseeable and that the manufacturer neglected their duty to prevent it.

• Government Entities

Public agencies can be held responsible if they fail to enforce environmental regulations effectively, leading to public exposure to toxins. They may also be liable if government operations directly result in contamination, such as improper disposal of hazardous waste.

• Landlords

Property owners can be liable if tenants are exposed to harmful substances due to the landlord’s negligence. An example is the use of lead-based paint in residential buildings, where landlords may be responsible for any resulting lead poisoning if they did not take appropriate measures to remove or cover the paint.

• Employers

In cases where workers are exposed to harmful substances at work, employers can be held liable for failing to provide a safe working environment. This includes inadequate safety measures, poor training regarding handling of toxic materials, and lack of protective gear.

• Contractors and Suppliers

These parties can be held liable if their services or products introduce toxic substances into environments where people can be exposed. For example, a contractor responsible for maintaining safety standards during construction or renovation projects that involve toxic substances.

• Retailers

Stores selling hazardous products can be liable if they fail to provide adequate warnings or sell products known to be dangerous without proper safeguards. Retailers have a duty to ensure that their products are safe for consumer use and must remove potentially dangerous items from shelves promptly.

The Importance of Hiring the Right Legal Representation for Your Case

In toxic tort litigation, having the right legal representation is crucial. A knowledgeable attorney plays a pivotal role in every aspect of claiming compensation for injuries or illnesses caused by exposure to toxic substances, by performing the following tasks:

• Case Evaluation: Assessing the strength and viability of your claim based on the specific circumstances and evidence.
• Evidence Gathering: Collecting crucial evidence, including medical records, environmental reports, and witness testimonies.
• Expert Consultation: Working with scientific experts to establish a clear link between the exposure and your medical conditions.
• Legal Strategy Development: Crafting a strategic approach tailored to the nuances of your case, deciding on the best course of action, whether it involves settlement discussions or proceeding to trial.
• Negotiation: Handling negotiations to secure the best possible settlement and ensure fair compensation for the damages suffered.
• Trial Advocacy: Representing your interests in court, presenting your case effectively to a judge or jury, should the case go to trial.

These actions are vital as they ensure that every aspect of your case is meticulously handled, from the initial filing through to the final resolution. This support is invaluable in navigating the complex and often daunting process of toxic tort litigation, enhancing your chances of a successful outcome.