Toxic Torts / Environmental Lawyers

Find an Environmental Attorney to Fight for Your Legal Rights

A toxic tort requires litigation of a legal claim involving exposure to an environmental hazard. One of the most well-known toxic tort cases stemmed from the contamination of groundwater in Woburn, Massachusetts.  It was in the 1980s that numerous people, including children, were being stricken with cancer and ultimately dying from substances in that groundwater. The tragedy was documented in the book and motion picture A Civil Action. Massachusetts was also the source of another large toxic tort case, this one involving a 2012 meningitis outbreak that sickened people in 19 states.  It was eventually linked to contaminated medications from the New England Compounding Center. While the substance causing a toxic tort is not always a carcinogen or cancer-causing agent, toxic materials can make people very ill, disrupt or permanently alter their lives, and take away some of life’s enjoyment. They can also cause death.

Contamination is not always caused by some mustache-twirling, nefarious villain or a CEO who is only out to make money. Frequently, toxic torts emerge from exposure to a toxin that was once believed to be safe. For instance, widespread exposure to asbestos, pesticides, chemicals dumped into water, chemicals that have seeped into the groundwater, contaminated medications, or other substances released into the air can cause people to fall ill and sometimes, die.  This forms the basis for a toxic tort claim, even though many of these substances were initially thought to be harmless.

However, that doesn’t excuse companies that don’t thoroughly test the chemicals they use or even hide their ill effects from facing the consequences. At Parker Waichman LLP, our skilled environmental attorneys are here to help the victims of these cases get the compensation they deserve and bring the culprits to justice. If you’ve suffered due to the effects of toxic chemical exposure, call us today for a free consultation with an experienced toxic tort attorney.

Chemicals That Lead to Toxic Tort Litigation

Physicians and researchers have identified numerous substances or by-products that have been linked to severe illness and even death from exposure to them. Most people are probably familiar with asbestos, but many other substances are suspected of harming people, too, including:

• Chemical solvents, like those used in dry cleaning
• Electromagnetic fields from power lines
• Chemical compounds used in industry, such as benzene, PCBs, mercury, arsenic, and heavy metals
• Lead paint
• Pesticides containing DDT or dioxin
• Landfills and dumps filled with materials that were disposed of unlawfully
• Radon
• Silica
• Welding rods
• Tainted pharmaceuticals

Types of Toxic Tort Claims

Frequently, toxic tort lawsuit settlements stem from class-action lawsuits. A class-action lawsuit is a type of litigation in which one plaintiff brings a claim on behalf of an enormous number of people who have suffered the same or similar injury. A requirement of assembling a class-action lawsuit, which must be approved by a judge before it can proceed, is that the list of potential plaintiffs is too long to be named individually in the litigation. In many class-action lawsuits, the individual plaintiff’s claim is not that large on its own; however, when joined by hundreds or thousands of additional plaintiffs, the potential damages can be significant.

Not all toxic torts are class-action lawsuits, but they can still involve a substantial number of people. One example would be a group of industrial workers who were exposed to a chemical that caused an illness such as cancer. Another example would be a number of people who live adjacent to a mill who all contract a chronic disease.

Many toxic tort cases involve asbestos. Even short-term exposure to asbestos can lead to asbestosis, but most cases of asbestosis have been caused by prolonged exposure to asbestos fibers. Asbestosis is a chronic lung disease resulting from inhaling asbestos fibers. The asbestos fibers become trapped in the victim’s lungs and lead to scarring, and this scarring makes the walls of the lungs very stiff and hard to move, so the patient has difficulty breathing. Someone with asbestosis will experience shortness of breath, loss of weight, and a dry cough that will not abate. Asbestosis cannot be cured.

What Proof Is Necessary to Prevail in Toxic Tort Litigation?

A successful toxic tort claim needs to prove that:

• The plaintiff experienced exposure to a dangerous substance or substances.
• The plaintiff became ill as a consequence of this exposure.
• The defendant was at least partially responsible for exposing the plaintiff to the harmful toxins or failing to protect the plaintiff from exposure.

A plaintiff may be able to bring four different causes of action: strict liability, negligence, fraud, and misrepresentation. Successfully proving any of these can result in plaintiffs recovering financial compensation for their injuries.

A significant challenge facing victims of toxic torts is discovering who their claims should be brought against. There can be several potential defendants in a toxic tort case. For instance, in a case where plaintiffs are found to have cancer due to exposure to pesticides, potential defendants could include the chemical manufacturer, the company that packaged and marketed the compound (if different from the manufacturer), wholesalers, and retailers. If farmhands fell ill due to exposure to pesticides, then their employer is a possible defendant as well. A toxic tort lawyer can help determine who should be the target of a legal claim.

Another challenge toxic tort plaintiffs face is the passage of time. It may be tough to prove causation because of the amount of time that has passed from possible exposure to illness. Not only will statutes of limitations come into play, but the offending company might have moved, closed or been sold to a new owner who had nothing to do with the contamination.

The plaintiff has the burden of proof in a civil trial, and it is the plaintiff who must prove his or her case based on a fair preponderance of the evidence. This civil standard of proof is less stringent than the more familiar burden of proof in criminal cases (beyond a reasonable doubt.) A preponderance of the evidence is essentially a finding with at least 51 percent certainty that the allegations are true.

Legal Theories of Recovery

Strict Liability

Strict liability is a legal theory based on the defendant creating a dangerous situation. In toxic tort cases, the defendant is strictly liable, meaning the plaintiff does not need to prove any intent or failure to perform a duty. For example, dumping toxic waste near a school, to use an extreme example, is manifestly dangerous even if the offending company took every step it could to protect against contamination. There’s no need to prove that the defendant intended to cause harm or acted unreasonably, because the defendant’s actions create such a high degree of risk.

A defendant may be found strictly liable for manufacturing defects as well. The plaintiff would need to prove that the manufacturing process was faulty, the manufacturing defect caused the injury, and this manufacturing defect made the product “unreasonably dangerous.” With manufacturing defects, the plaintiff does not need to be a purchaser of a product to be protected from harm. For instance, the people who lived near those manufacturing plants in Woburn, Massachusetts, and contracted leukemia, did not purchase the chemicals that poisoned them, but they were able to pursue damages against the chemical manufacturers.

The law recognizes two different types of manufacturing defect: a defect in the manufacturing process and a design defect. When a defect in the manufacturing process caused the injury, the offending material might be limited to a specific batch. In contrast, a defect in the product’s design affects all of the goods made using that design.

In strict liability claims, defendants will usually try to present evidence that their actions did not cause the injury suffered by the plaintiff. For instance, the defendant could argue that they did not cause the contamination or try to turn the tables on the plaintiff by arguing that the plaintiffs assumed the risk of their behavior. The defendants will also try to minimize the damages sustained by the plaintiffs, if possible. An experienced environmental attorney can help plaintiffs prepare for and counter these arguments.

Negligence

The legal concept of negligence is founded on the premise that people are responsible for acting reasonably toward each other to prevent harm. To prove that a defendant was negligent, the plaintiff must show that:

• The defendant owed the plaintiff a duty of care.
• The defendant violated that duty of care.
• The defendant’s breach of the duty of care caused the plaintiff’s injury.
• The plaintiff sustained damages as a result of the injury.

Negligent conduct, like strict liability, can take many forms. The defendants could be negligent for acting carelessly or failing to act when they had a duty to do so. Negligence can be a failure to warn of potential risks from conditions the defendant created, such as placing appropriate signage around a plant that generates toxic waste. Also, the defendant may be found liable for a failure to investigate the circumstances of a particular situation.

Fraud

The essence of fraud, sometimes known as intentional misrepresentation or deceit, is convincing another to rely on a statement as fact, to their detriment. Fraud can also take the form of concealment of facts known to the defendant. Fraud is usually part of a scheme, but it does not have to be.

To recover damages for fraud or deceit, the plaintiff must prove that they relied upon an assertion of fact made by the defendant to their detriment. Fraud is not easy to prove. The law requires that the plaintiff prove that the defendant intentionally lied to the plaintiff or the defendant made a statement with reckless disregard for the truth. Intent is very difficult to prove, but the benefit is that if this intent is proven, the law may allow the plaintiff to seek punitive damages as well.

The Importance of Expert Witnesses

Success in a toxic tort case often hinges on the plaintiff’s ability to prove that the defendants caused the damage experienced by the plaintiff. Opinions from expert witnesses about how a person became poisoned and what happened to their bodies once the poison infected them are necessary to prove the defendants liable. These experts did not personally experience any of the facts of the case, but their expertise is called upon in toxic tort cases to help the jury understand what happened and why.

In addition to the requisite knowledge, the expert must base their opinion on good science. This can make proving toxic tort cases difficult, as there may not be an existing body of scientific evidence to support the plaintiff’s assertions. If this is the case, then the experts have to conduct their own experiments and make their own deductions based on existing science.

A good environmental law attorney will equip clients with not only their firm’s expertise, but also their connections to experts who can testify on the client’s behalf. Expert witnesses used to establish toxic torts may include:

• Forensic pathologists, who study the reasons why a person died or the progress of a disease
• Toxicologists, who can give an opinion about the amount of a chemical in a person and the effect the chemical would have on that individual
• Pharmacokineticists, who study what happens to toxins in the body
• Hydrologists, who study the flow of water and how it moves underground
• Geologists, who are experts in rock formation and ground composition
• Meteorologists, who can discuss weather conditions
• Surgeons, who can testify about the procedures the victim needed
• Physical therapists
• Other health professionals

Statute of Limitations for Toxic Torts

The statute of limitations for toxic torts depends on the state in which the harm occurred. Many U.S. states have a three-year statute of limitations on injury cases such as toxic torts. New York, for example, has a three-year statute of limitations on personal injury claims. Because illnesses might not manifest themselves until years later, determining when the statute of limitations will run can be tricky. A Parker Waichman toxic tort lawyer can help you figure out the appropriate statute of limitations for your case and take steps to protect your legal claim.

Most states also have similar laws known as statutes of repose. Statutes of repose are more defendant-friendly than statutes of limitations because a statute of repose is a hard and fast date. Typically, a statute of repose prevents plaintiffs from filing a lawsuit against a defendant for an action after a lengthy period of time, even if exceptions to the statute of limitations might apply. Statutes of repose are very technical pieces of legislation, but the lawyers at Parker Waichman can help you navigate these murky waters.

Why Hire an Experienced Toxic Tort Attorney?

Litigation of toxic torts is complicated, and any misstep along the way could result in a lost claim. You need attorneys who are committed to your cause and know how to prove the allegations so that you can recover compensation for your injuries.

Typical Compensation for a Toxic Tort Case

Toxic tort victims may recover compensation for:

• Medical expenses
• Future medical costs
• Lost wages
• Loss of earning capacity
• Loss of value of life
• Loss of enjoyment of life
• Pain and suffering
• Punitive damages

Contact our toxic tort law firm today and we’ll evaluate your claim in a free, no-obligation consultation. Our experienced toxic tort attorneys aggressively pursue defendants who poison others, and we’ll fight to get you the compensation you deserve. Contact us today by filling out our online form or calling 800-968-7529.