Toxic Tort Claims
A toxic tort is a legal claim brought by an individual or group, a class action, for harm caused by exposure to a toxic substance. The substance can be a chemical, pesticide, pharmaceutical, or other product the person or group has been exposed to that causes harm.
Toxic substances may have initially been thought to be safe, or the harmful exposure may have come from a dangerous substance leaking into groundwater or the air. Whatever the cause, exposure to toxic substances can cause serious harm. When it does, a lawyer experienced in environmental law can help.
What Are Common Toxic Tort Claims?
In a toxic tort claim, the person or group bringing the claim alleges they have suffered an illness or injury from exposure to a dangerous substance. This exposure could come from air, land, water, or a consumer or industrial product. Common toxic torts include the following:
- Occupational exposure: Workers in manufacturing, construction, and similar industries may be exposed to toxins in the workplace or on the job site, often through the air. Sometimes, the exposure is at low levels for long periods. Other times, a worker is exposed to a high level of toxin in a shorter period. Both scenarios can cause serious illness and even lead to death.
- Pharmaceutical drugs: Even though pharmaceutical drugs are regulated through the U.S. Food and Drug Administration (FDA), they can still have harmful side effects. These unintended side effects may take some time to show up and may not happen to everyone. When they do, the medication often becomes the subject of toxic tort litigation.
- Consumer products: A person or group who routinely uses a product containing toxins may eventually fall ill with cancer, neurological disease, or other illnesses. For example, using pesticides or weedkillers in the home and garden, such as Roundup, has caused severe illness in some people. Benzene, which is used in metal, wood, and textiles, is also a toxin.
What Must Be Proven in a Toxic Tort Claim?
Every case is unique, but a plaintiff must generally prove three elements in a toxic tort claim:
- The substance was dangerous.
- The plaintiff was exposed to the substance.
- The substance harmed the plaintiff.
The lawyer’s primary goal will be to establish causation proving that the defendant’s conduct caused an event and this event led to the plaintiff’s compensable damages. To do so, they will undertake copious research and seek the testimonies of professional experts, including physicians, scientists, environmental engineers, and other qualified specialists.
Establishing causation can be difficult for many reasons. First, it is often challenging to trace the source of the toxin that caused the injury. The product may no longer be manufactured or available, or the drinking water and its sources of toxins may have been cleaned.
In addition, because many medical conditions caused by toxin exposure do not manifest until long after the contact, it can be complicated to prove that a specific substance caused the illness. The defendant will argue that something else caused the illness during that intervening time.
Evidence, too, may be hard to come by when a lawsuit is brought years after exposure to a toxic substance. Witnesses or qualified experts may be difficult to find, and their memories may be fuzzy when they are found. Documentation may be lost, and the original products may no longer exist in any form.
Science plays an immense role in a toxic tort claim. Studies, especially, are crucial. If the link between a substance and an illness has not yet been established, it is an arduous task to prove the connection. Changing scientific developments, such as new studies that prove causation, can easily change the outcome of future torts.
There are other theories of liability in a toxic tort claim depending on the case’s unique circumstances. Along with proving causation, a litigator may also work to establish the following:
- Negligence: A lawyer will prove that the defendant’s actions did not meet its obligatory duty of care. An example of this is when a construction company fails to provide the appropriate safety equipment to prevent the inhalation of toxic chemicals on the job.
- Products liability: A company that designs and manufactures a defective or dangerous product or fails to warn consumers of health and safety risks can be held liable for resulting harm, including illness.
- Intentional misrepresentation or fraud: A defendant who knew their product was hazardous or dangerous but purposely hid the danger or misleadingly marketed the product can be held liable for product users’ injuries, illness, and death.
- Hazardous activity/strict liability: In certain toxic tort claims, an entity can be held legally responsible or strictly liable for damages resulting from dangerous behavior. An example of this could be a company that routinely transports toxic and hazardous chemicals unsafely to save money. Those harmed by this behavior would not have to show that the defendant acted carelessly in such a case.
The defendant in a toxic tort case is sure to present an aggressive defense. They will do whatever they can to show that the plaintiff has not fully proved causation or negligence. They may try to get the case thrown out because of the statute of limitations and other factors.
Toxic tort cases require the skills of a solid litigator. A seasoned lawyer will build the strongest case possible using robust scientific and expert evidence and testimonies.
Who Can Be Held Liable?
A primary responsibility of a litigator is to determine whom the plaintiff should sue in a toxic court case. This is not always as clear as it may seem. For example, a group of homeowners in a community that develops the same type of cancer may not know who or what made them sick. Litigators often recommend suing any entity that could be linked to the toxin. This could include:
- Manufacturers and distributors of the toxic substances themselves or the devices that exposed people to the toxin.
- Manufacturer of equipment that failed to keep the user safe, such as a faulty gas mask in a work setting.
- Companies that stored the chemical unsafely, resulting in leakage and airborne or groundwater exposure.
- Entities that own or lease the premises where the plaintiff endured the toxic exposure.
- The developer of a housing community built on a former brownfield that was not adequately cleaned.
- Any person or company that played a part in a client’s illness must also play a role in making them whole again.
New Jersey Environmental Lawyers at Herold Law Are Ready to Protect Your Rights if You Have Been Exposed to a Toxin
If you have an illness from exposure to a toxin, our experienced New Jersey environmental lawyers at Herold Law, P.A. are ready to advocate for you. Call us today at 908-679-5011 or contact us online for an initial consultation. Located in Warren, New Jersey, we serve clients throughout the state.