Toxic Torts

Toxic torts are claims for personal injuries caused by exposure to dangerous or toxic substances, forms of energy, and devices, including asbestos, chemicals, and cosmetics, hazardous waste, medical products and devices, pesticides, pharmaceutical products, radiation and electromagnetic energy, and tobacco. Often, the same toxic substance affects many people. As a result, many toxic tort cases are brought as class actions. There are lawyers who specialize in both bringing and defending against class actions, as well as toxic tort litigation. A company that is alleged to be responsible for a toxic tort should not delay in consulting with experienced counsel.

Liability for toxic torts can be grounded in a number of different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability. No matter which legal theory is pursued in a toxic tort case, the plaintiff must prove that he or she was exposed to the toxic substance, energy, or device. In some instances, this may be easy, such as in the disaster in Bhopal, in which there was a known cause of injury-a toxic cloud that was released from a chemical plant. Other types of exposure are more difficult to prove, however, such as exposure to a tasteless, but harmful, water pollutant. Most toxic tort lawsuits are challenging, complicated, and require the testimony of expert witnesses.

A toxic tort plaintiff also must prove that the defendant in some way caused his or her injuries. Proof of causation has two parts. First, a defendant's action or inaction must have been the "cause in fact" of a particular injury. In other words, the defendant's act or omission had to be a necessary antecedent to the plaintiff's injury. Cause in fact can be difficult to prove in a toxic tort case, because the cause of many diseases, especially cancer, is uncertain; the effects of toxic-substance exposure may take years to show up; and plaintiffs often have been exposed to other potentially harmful substances besides the one at issue. Toxic tort defendants often call upon experts in various fields to testify at trial as to what they believe could have caused a plaintiff's injury or disease.

The second kind of causation a plaintiff must prove is that a particular tort was the "proximate cause" of his or her injury. Proximate causation involves questions of whether the defendant had a duty to the plaintiff, and whether the particular injury was foreseeable by the defendant. Although proximate cause sounds complicated, in toxic tort cases, if cause in fact is established, proximate cause also usually is established.

Finally, a toxic tort plaintiff must be able to prove that he or she suffered damages. A person injured by a toxic tort may be able to recover monetary damages for past and future medical expenses, past and future pain and suffering, lost wages, loss of future earning capacity, and punitive damages.

The number of toxic tort cases has increased dramatically over the last thirty years, as a result of increased awareness of and activism over injuries caused by environmental pollutants and unsafe products. Due to the nature of chemical accidents and the long latency periods of many diseases associated with toxic substances, large populations often are exposed to toxics. Examples of toxic tort cases in recent years include litigation over Agent Orange use in Viet Nam, toxic waste disposal in the Love Canal area of New York, radiation from the Three Mile Island nuclear power plant accident, and the chemical cloud released by the Union Carbide plant in Bhopal, India.

Defendants in toxic tort cases must take allegations against them seriously. If they are found liable, they may be held responsible for the plaintiff's medical expenses, lost wages, pain and suffering damages, and sometimes even punitive damages, which go beyond compensating the plaintiff for his or her losses and are instead intended to punish the wrongdoer and deter future similar conduct. Punitive damages awards can reach into the millions of dollars. Accordingly, an experienced toxic tort lawyer is essential when defending against a claim. Although many lawyers represent clients in cases involving any toxic tort, others specialize in cases involving particular products. In either case, a veteran attorney is an essential ally in a toxic torts case.

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Intake Form: Toxic Tort Defendant

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