The term tort refers to an injury to a person that can support recovery through a civil lawsuit. Where that injury is the result of exposure to a toxic or poisonous substance, the case may be described as a toxic tort case.
Toxic torts claims may arise in any place where people come into contact with dangerous substances, including at home, at work, or in public places. The following is a non-exhaustive list of possible sources of contact, through which people may become exposed to dangerous chemicals and other substances.
Environmental contamination may result in chemical exposure, potentially causing people to suffer illness or other negative health consequences.
- Air pollution: The release of smoke and chemicals into the air can result in chemical exposure to people who live in nearby communities;
- Soil and groundwater pollution: When chemicals are improperly used, stored or discarded, they may contaminate the soil and potentially reach aquifers, potentially rendering land unsafe for use, or causing wells or even municipal water supplies to become dangerous.
Workplace Chemical Exposure
Exposure to dangerous chemicals and substances in the workplace may result in a workers' compensation claim, and may also support a civil claim against a third party, such as the manufacturer of an unreasonably dangerous product that is used at work.
- Chemicals and solvents: Improper use, storage, handling and disposal of hazardous chemicals in the workplace, and exposure to chemicals without appropriate protective equipment, may result in workers being exposed to harmful substances, creating the risk of illness or death.
- Dangerous Particulate Matter: Without proper safety equipment, workers may become exposed to airborn particles of materials such as coal dust, silica powder or asbestos, with potential long-term health consequences that potentially include obstructive pulmonary diseases or cancer.
Dangerous medications and pharmaceutical products may cause significant injury or death. Contaminated pharmaceutical products may cause illness or infection, or cause the medication to be poisonous or toxic.
- Dangerous or Defective Medications: Some medications are approved by the Food and Drug Administration (FDA) but are later found to be dangerous or defective, causing injury to large numbers of people who have received the medication.
- Contamination: A medication may become contaminated during the manufacturing process or due to later improper handling and storage.
- Compounding Error: Some patients receive a personalized medication to meet their medical needs, that is prepared by a compounding facility that mixes specific medications in specified amounts as set forth in a patient's prescription. Poor practices during the compounding process may result in contaminated medication, or medications that contain insufficient or excessive amounts of medication.
Even within the home, there is risk of exposure to dangerous substances that can cause significant injury or death.
- Lead paint: People, and most particularly children, can be exposed to toxic levels of lead within the home. Exposure may come from dust from lead paint, particularly where a landlord has failed to remediate an older building such that walls or window frames are still covered with lead-based paint, or from imported toys and ceramics that used lead-based paints or glazes and were imported into the U.S. despite their not meeting proper safety standards.
- Household chemicals: People may be injured by exposure to common household chemicals, including cleaning solutions and pesticides. While it does not necessarily follow that the misuse or mishandling of a household chemical will support a personal injury claim, some household chemicals may later be found to be unreasonably dangerous due to their chemical composition, improper formulation, or contamination.
- Mold: In some cases, dangerous or toxic molds may develop in a home, causing risk of illness and injury through exposure to mold spores. Even with non-toxic molds, exposure to spores may cause discomfort or sickness.
A successful toxic tort case requires that the plaintiff prove that an alleged injury was caused by exposure to a dangerous substance, and that the defendant was legally responsible for the exposure. In many cases, the exposure will involve a substance that is known to be dangerous. In other cases the substance may have been considered to be safe at the time of exposure, but later be determined to be unreasonably dangerous.
Most toxic tort cases involve exposure to more than one person and, in some cases, to large numbers of people. Due to the cost and complexity of the litigation, where toxic torts involve significant numbers of potential claimants they are often pursued as class action lawsuits. Cases involving an alleged injury to significant numbers of people are often called mass torts.
Depending upon the facts, and how injury occurred, a toxic tort may be brought against the manufacturer of the chemical or substance that is alleged to have caused injury, a distributor of that product, the end user of the product, the owner or person in control of contaminated land or premises, or some combination of defendants. Depending upon the nature of the case, a plaintiff may be required to sue every person or entity who may be responsible for the exposure.
Theories of Liability
Lawsuits for exposure to dangerous chemicals and other substances may be pursued under a number of legal theories:
- Negligence: Toxic tort cases are normally pursued on theories of negligence, with the plaintiff alleging that the defendant responsible for the exposure owed a duty to the plaintiff (or to members of the general public, including the plaintiff), that the defendant violated that duty causing the exposure, and that the plaintiff suffered harm as a result of the exposure.
- Recklessness: Toxic torts may also be pursued on theories of recklessness, with the defendant being alleged to have acted with reckless disregard for the lives and safety of others, such as by pouring toxic waste down a standard drain and causing contamination to a neighborhood rather than following proper disposal practices, as has been known to occur at some drycleaning establishments.
- Intentional Misconduct: In unusual cases, the defendant may be alleged to have acted with intent to cause injury, such as where an employer orders an employee to clean a toxic waste tank without protective gear, knowing that the employee will be injured through exposure to the chemicals in the tank.
- Strict Liability: Some toxic torts may be proved on a theory of strict liability, meaning that due to the nature of the substance to which the plaintiff was exposed or the manner of exposure, the plaintiff need not prove that the defendant engaged in improper conduct in causing the exposure, but merely that the defendant was responsible for the exposure that caused injury to the plaintiff.
A toxic tort claim may allege fraudulent actions by a defendant, suggesting that the defendant had knowledge that a substance or the manner of its use was dangerous, but concealed that danger, perhaps also making misleading statements suggesting that the product was safe. A fraud claim may help a plaintiff avoid the application of a statute of limitations and, in some states, may potentially allow for the recovery of punitive damages.
Toxic tort cases can be difficult to prove. Factors that increase their complexity include:
- Passage of time: Injury from chemical exposure will often take years to become apparent, by which time it may be difficult to prove that the exposure was in fact the cause of an injury. Also, with the passage of time, a statute of repose might come into play that bars a lawsuit, or it may be necessary to prove an exception to a statute of limitations that would otherwise bar recovery.
- Proving exposure: When illness is consistent with chemical exposure, but a considerable amount of time has passed since the exposure occurred, it may be difficult to prove where and when exposure occurred, or that there were no prior or subsequent incidents that the defense could argue were the actual source of any exposure. If the injury is alleged to have been caused by a specific product, it may be difficult to identify the manufacturer of a product that was available from multiple suppliers, or a manufacturer may have gone out of business by the time the injured person is able to bring a claim
- Proving causation: In order to prevail in a toxic tort case, a plaintiff muse prove that the plaintiff's injuries were caused by the alleged exposure for which the defendant is responsible. In many cases, it will take years for the plaintiff to develop symptoms from the exposure. Although a plaintiff's symptoms or illness may be consistent with exposure to a dangerous chemical or substance, often there will be other potential explanations for the same set of symptoms. Even if exposure is proved, it may be difficult to also prove that the exposure caused or significantly contributed to the plaintiff's condition.
Expert Witness Support and Testimony
A toxic tort claim will often require significant support from expert witnesses and consultants. For example, in a case that alleges contaminated groundwater it may be necessary to have geologists examine the flow of water from the site of contamination to prove that the contaminant reached the injured plaintiff's drinking water, to have a toxicologist testify that the contaminant caused or could have caused the injured person's injury or symptoms, and to have other medical experts rule out other potential causes of injury, such as diseases and other medical conditions that could produce the same or similar injuries.
Expert analysis and testimony in toxic tort cases tends to be very expensive, due to the complexity of the cases and the resoruces available to defendants who deny liability, or who dispute causation or damages resulting from an injured plaintiff's exposure to a dangerous substance.