What Are Toxic Torts?

In the mid-20th century, toxic chemicals were everywhere. People didn't think much about them. These rising industrial chemicals were not thought to be particularly dangerous. That perception quickly changed as people became ill from chemical exposure. Toxic chemicals in the groundwater and soil were the cause of health problems, illness, and death.

Convincing manufacturers and users of these toxins that they are liable for the harm done by the products has been an ongoing battle. Toxic tort litigation increases yearly for people and their loved ones harmed by toxic substances and for environmental damage caused by their use.

Toxic Torts 101

A tort is a civil wrong — an injury to a person's body, financial situation, or other interest — caused by another's negligence or carelessness. Torts differ from criminal acts, in which the person intends to cause harm. Unlike criminal courts that punish the wrongdoer, civil courts restore the plaintiff to their position before the injury by financial compensation or other remedy.

A toxic tort is just a tort involving contact with a toxic substance. Toxic exposure may involve workplace exposure, dangerous medication, or environmental exposure caused by improper disposal of hazardous waste. The victim may file a toxic tort, or family members may file a wrongful death suit.

A mass tort is a tort action in which multiple people have the same cause of action against a single defendant. In a mass tort, the parties sue collectively for individual damages.

A class-action suit occurs when the number of litigants is so great that individual lawsuits would take too long or lead to duplicative cases. In a class-action suit, one plaintiff represents the class. The results are binding on all class members and all future cases.

A toxic tort claim is like a personal injury claim, but proving causation in chemical exposure is more complicated than in a car accident.

Types of Toxic Torts

Toxic tort claims arise from any exposure to toxic substances, including consumer products, pharmaceuticals, household products, and workplace chemicals. Toxic tort claims may include:

• Lead poisoning from paint, pipes, and workplace exposure
• Lung disease caused by silica and asbestos exposure in mining, construction, and heavy equipment operations
• Birth injuries such as leukemia due to exposure to solvents, pesticides, and toxic waste
• Organ and nerve damage caused by benzene exposure, heavy metal poisoning, and medications

Proving a Toxic Tort Claim

Proving a toxic tort case has a few extra steps. In a typical tort claim, the plaintiff must prove these elements of negligence:

• The defendant had a duty toward the plaintiff.
• There was a breach of duty.
• The breach was the actual cause of the injury.
• The plaintiff suffered actual harm.

In a toxic tort, the plaintiff also needs to show all of these are true:

• A toxic substance caused the injury.
• The plaintiff was exposed to the substance.
• The defendant was responsible for the plaintiff's exposure.
• The defendant knew or reasonably should have known the substance was toxic.

For instance, the pesticide DDT was once thought to be safe. It is now known to be an environmental pollutant. If DDT spraying caused injuries before that, manufacturers were not liable for any injuries. After scientists discovered the risks, manufacturers became strictly liable for the harm.

Product Liability in Toxic Torts

Product liability is a legal theory that holds manufacturers strictly liable for any harm caused by manufacturing or design flaws. If a product is harmful or hazardous, plaintiffs do not need to prove negligence when filing a claim. For instance, lead paint is toxic. Any litigation involving lead paint will not require the plaintiff to prove a breach of duty by the manufacturer or painter.

Statutes of Limitation and Statutes of Repose

Toxic tort law is no different from any other tort law. The statutes of limitation in each state determine how long a plaintiff has to file a personal injury claim following an injury or exposure to a toxin. The deadline to file starts or "runs" from the date of the injury or the date it "reasonably" could have been discovered.

For instance, mesothelioma, a cancer caused by asbestos exposure, can take decades to develop after exposure. In addition, some types of exposure were not known to be hazardous until after the first lawsuits. For that reason, the statute of limitations might not begin until after a disease diagnosis.

A statute of repose is a cutoff date that limits the time plaintiffs have to file personal injury cases, particularly in product liability cases. For instance, the Dow Corning breast implant lawsuit, which began in the 1980s, declared a final cutoff date of Sept. 17, 2022, for claims.

Expert Testimony

Defendants in a toxic tort case do their best to avoid liability. The most common defense is "assumption of risk" or a variation thereof. They claim either that the plaintiff also knew of the hazard and exposed themselves willingly or that they disregarded safety procedures. For instance, if you work in asbestos remediation, your employer might claim you failed to wear proper respiratory gear.

For these reasons, toxic tort lawyers need extensive experience handling these lawsuits. Discovery and witness testimony are essential in proving a case. Expert testimony from medical professionals and toxicologists will help explain how your injuries were due to exposure to chemicals and not other environmental factors.

Questions? Consult a Toxic Tort Attorney

If you think your illness or injury is due to exposure to a dangerous substance, you need legal advice immediately. The time to file toxic tort lawsuits is time-limited. A local toxic torts attorney can review your claim and provide the advocacy you need for your case.