Toxic Torts

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:

1. The defendant owed the plaintiff a duty of care.
2. The defendant violated that duty of care.
3. The defendant’s breach of the duty of care caused the plaintiff’s injury.
4. 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

Why Choose The Toxic TortLawyers At Parker Waichman?

Don’t leave your case to the first environmental attorney near you that you come across. Parker Waichman is one of the best national toxic tort law firms, and you can trust us to work hard for you. You don’t have to take our word for it, though: We’ve established a sterling reputation in the legal community, including a listing in Best Lawyers, based on extensive peer review, as well as a 9.8 out of 10 ratings by AVVO, which rates every attorney in the United States. We’ve even been ranked “AV Preeminent” by Martindale-Hubbell, a company that has reviewed attorneys based on feedback from judges and other lawyers for more than a century.