Toxic Tort in the United States

Toxic Tort in Environmental Law

A type of civil injury caused by exposure to toxic or hazardous chemicals or products. An evolving area of law, toxic torts have gained popularity as the public became aware of environmental and human impacts resulting from chemicals. Examples of toxic

torts include defective or dangerous pharmaceutical products, illustrated by the Daikon Shield cases; hazardous products, such as those containing asbestos; dangerous drugs, like diethylstilbestrol (DES); groundwater, surface water, and well water contamination; illnesses caused by chemical releases; and any other injury from toxins.

Theories used by plaintiffs in toxic tort cases fall within three major categories: strict liability, negligence, and nuisance. Often the cases are class action lawsuits involving numerous plaintiffs. In the case of hazardous products, the plaintiffs do not always know which manufacturer made the products they used, so they sometimes sue all manufacturers of the suspect product. If the cases establish liability, the amount of the judgment may be apportioned among the defendants based on market share at the time of the injuries or through some other method the court selects.

Often the plaintiff uses the reasoning behind product liability cases, trying to reach the manufacturer of the toxic agent. But if the injury occurred because of a release, the plaintiff may only be able to reach the person who allowed the release to occur. For example, if a hazardous substance [see hazardous substances] manufactured by Company A and stored by Company B escapes into groundwater, more often than not, Company A will not be liable, but Company B could be.

A number of state courts limit strict liability in tort to product liability. That means that the plaintiff must establish a direct connection between the manufacturer and the injury; otherwise, the plaintiff must rely on negligence or nuisance theories.

Because hazardous substances and hazardous wastes are intensely regulated, significant amounts of information are available to toxic tort plaintiffs. Statutes such as the Emergency Planning and Community RightToKnow Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, and the Federal Insecticide, Fungicide, and Rodenticide Act require recordkeeping and reporting. Material submitted to agencies is available to anyone who requests it under the Freedom of Information Act, with the exception of confidential business information. Federal agencies also publish the results of their own research regarding the effects of chemicals on the human body and the environment.

Evidence concerning release, disposal, storage, or production of hazardous substances aids the plaintiff in a toxic tort case, but it by no means establishes the defendant’s liability. In addition to showing that an event occurred, the plaintiff must also demonstrate that he or she was exposed to the toxic agent. Traditional causation issues must also be addressed, such as whether the exposure is the cause of the disease, injury, or death. In short, the plaintiff must prove that the exposure is capable of causing the type of injury he or she suffered and that it did in fact cause it.

To demonstrate exposure in an environmental or occupational toxic tort lawsuit, evidence must be produced to show the toxic substance had a pathway to reach the plaintiff. Totally contained hazardous waste does not go anywhere, so there is no pathway But if the container leaks and hazardous waste gets into the groundwater or rain carries it to a stream, a pathway exists. Field testing and computer modeling, along with expert testimony, are methods commonly used to prove that a pathway exists. Once that has been proven, the plaintiff must show that he or she was exposed to the contamination.

In addition, the plaintiff must prove that the concentration of the toxic agent was sufficient to cause his or her injury. Causation is the most difficult element in a toxic tort case. Agency information concerning safe levels of exposure is often too conservative to rely upon, since its purpose is to provide an ample margin of safety for the public. Tests done only on animals to prove toxicity are controversial because the correlation may not be valid. Since animal testing is typically done with extremely high doses of the substance, the plaintiff has to provide evidence that adjusts the dosage, accounts for different metabolisms, and shows the similarity of the animal tested to humans.

A lawsuit by veterans and their families involving Agent Orange, a defoliant used during the Vietnam War, ran into insurmountable problems involving causation. Although some of the parties did settle their claims in the 1984 case In re Agent Orange Product Liability Litigation, the others lost because they could not show a statistical link between the injuries they sustained and Agent Orange. Government studies were used, but they were not helpful.

Even if the plaintiff establishes that the substance is capable of causing harm, he or she must also show that his or her particular injury resulted from that exposure. Individuals vary greatly in response, metabolism, lifestyle, and general health. It is often difficult to find a medical expert who will testify that a particular exposure did cause the injury, and having found one, the plaintiff must then convince the court that the statement is true.

In some toxic tort cases, the plaintiffs are not yet injured. For example, a person may be exposed to a chemical and become afraid of developing cancer, a type of case called a “Fear of Cancer” case. Fear of cancer lawsuits are difficult to win, and prevailing plaintiffs generally only obtain medical monitoring.

Asbestos litigation has been at the forefront of toxic tort environmental cases. Many attorneys believe indoor air quality, possibly involving secondary cigarette smoke, will follow as the next wave of lawsuits.
Based on “Environment and the Law. A Dictionary”.

Handling Toxic Tort Litigation

This section examines the Handling Toxic Tort Litigation subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.

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This section examines the Residential Mold as a Toxic Tort Under Homeowners Policy subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.