A toxic tort is a type of personal injury claim. In a toxic tort, the individual or group filing the lawsuit allegedly suffered disease or injury from exposure to a harmful chemical. This individual is referred to as the plaintiff. The group or individual against whom the lawsuit is filed is referred to as the defendant. Toxic torts are often filed against chemical manufacturers, distributors, retailers, and other parties involved in exposure to a toxic chemical.
In cases where a large group of plaintiffs wish to file a toxic tort against a common defendant, a mass tort may be filed. Mass torts group together large groups of individuals who share common injuries against a common defendant. Toxic torts processed as mass torts help to streamline the legal process and the costs, time, and resources required. Mass torts also ensure that conflicting rulings do not occur among similar cases.
Types of Toxic Torts
Toxic tort cases may apply to a wide range of chemical substances. Toxic torts typically arise from harm caused by occupational exposure, pharmaceuticals, consumer products, or environmental exposure. In some cases, plaintiffs may not experience harm until months or years after the chemical exposure.
Occupational exposure describes chemical injuries that occur in the plaintiff’s place of work. These toxic torts often involve industrial settings where employees may be chronically exposed to certain toxic chemicals. Asbestos is a common substance involved in occupational toxic torts. Asbestos is a group of naturally-occurring minerals used in certain products, such as building materials. Inhalation of asbestos can lead to a number of life-threatening conditions.
Toxic torts may result when individuals are harmed after consuming pharmaceutical drugs. Often, thousands of people experience the same harm from a specific pharmaceutical drug. For this reason, pharmaceutical toxic torts are a common vehicle for mass torts. The defendants in pharmaceutical toxic torts are often drug manufacturers, drug distributors, or prescribing physicians.
Toxic torts over consumer products often involve chemical injuries that occur in the home. These injuries may result from unintentional or inadvertent consumption and inhalation of toxic chemicals. Toxic torts may be filed against consumers who are exposed to substances such as mold contamination, pesticides, or home treatments containing harmful chemicals such as formaldehyde.
Environmental toxic torts may be filed when individuals are exposed to toxins that are present in the air or drinking water in a particular area. These toxic torts are often brought against defendants such as manufacturing companies that produce environmental by-products or fail to properly discard toxic waste. Environmental toxic torts involve examination of local, state, and federal laws regarding public safety and the environment.
Toxic Tort Injuries
Injuries that may lead to toxic tort claims include, but are not limited to:
- Various types of cancer, such as leukemia or lymphoma
- Birth defects from chemical exposure during pregnancy
- Injury or disease to bodily systems such as the central nervous system
- Disease to major organs such as the lungs, brain, kidneys, and liver
Proving Fault in a Toxic Tort Case
Plaintiffs who file a toxic tort hold the “burden of proof.” Burden of proof refers to the plaintiff’s responsibility of proving that the defendant is guilty of the accused actions that caused harm. In order to prove fault and establish liability, plaintiffs may use one of several legal theories.
In order to prove negligence, the plaintiff must first establish that that the defendant had an obligation to act under a reasonable standard of care toward the general public or the plaintiff specifically. The plaintiff must then prove that the defendant failed to meet this obligation. Lastly, the plaintiff must prove that his or her injury was a direct result of the failure to meet the established obligation.
Strict liability is a legal theory used in product liability cases, such as defective products. Strict liability holds the product defendant responsible regardless of the manufacturer’s specific actions. This form of liability applies under the concept that the defendant’s behavior was so dangerous that it is automatically responsible for harm caused. This behavior may be designing a faulty product, manufacturing a product incorrectly, or failing to properly warn consumers of the product’s inherent dangers.
Fraud or Intentional Misrepresentation
Fraud or intentional misrepresentation in a toxic tort alleges that the defendant was fully aware of the substance’s danger. Despite this knowledge, the defendant either concealed the danger from consumers, or used misleading marketing tactics.
Foster, Kenneth R., David E. Bernstein, and Peter W. Huber. “Science and the toxic tort.” Science 261.5128 (1993): 1509+. Academic OneFile. Web. 16 Sept. 2013.
Kramer, Beth M., et al. “Recent developments in toxic torts and environmental law.” Tort Trial & Insurance Practice Law Journal Winter 2011: 635+. Academic OneFile. Web. 16 Sept. 2013.
Rosenthal, Brent M. “Toxic Torts and Mass Torts.” SMU Law Review 64.1 (2011): 583-596. Index to Legal Periodicals & Books Full Text (H.W. Wilson). Web. 16 Sept. 2013.
Strickland, N. Kathleen. “Toxic Torts: An Overview.”American Bar. The Recorder, 3 May 2004. Web. 16 Sep 2013. <http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/toxictorts.html>.