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FAQ - Environmental Law

Toxic Torts

Toxic Torts

Introduction

Toxic torts are personal injuries or property damage caused by exposure to toxic and other dangerous substances, forms of energy, and devices present in the environment. Often a large group of people is affected by the same environmental toxin, so many toxic tort cases are brought as class actions. Victims of personal-injury toxic torts can recover money damages for medical expenses, lost wages, pain and suffering, and sometimes punitive damages. Although many lawyers represent clients in cases involving any toxic tort, others specialize in cases involving particular products. An experienced toxic tort lawyer is essential whether bringing or defending against a claim.

Environmental Claims Often Involve Toxic Torts.

The number of toxic tort cases has increased dramatically over the last thirty years, as a result of rising awareness of and activism over injuries caused by environmental pollutants and unsafe products. Due to the nature of chemical accidents and the long latency periods of many diseases associated with toxic substances, large populations often are exposed to toxics. As a result, many toxic tort lawsuits are brought as class actions. Examples of toxic tort litigation in history include cases concerning Agent Orange use in Viet Nam, toxic waste disposal in the Love Canal area of New York, radiation from the Three Mile Island nuclear power plant accident, and the chemical cloud released by a manufacturing plant in Bhopal, India.

Liability for toxic torts can be grounded in a number of different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability. No matter which legal theory is used in a toxic tort case, the plaintiff must prove that he or she was exposed to the toxic substance, energy, or device. In some cases, this may be easy, such as in a case like the disaster in Bhopal in which there was a known cause of injury-a toxic cloud that was released from a chemical plant. Other types of exposure are more difficult to prove, such as exposure to a tasteless, but harmful, water pollutant.

A plaintiff also must prove that the defendant in some way caused his or her injuries. Proof of causation has two parts. First, a defendant's action or inaction must have been the "cause in fact" of a particular injury. In other words, the defendant's act or omission must have been a necessary antecedent to the plaintiff's injury. Cause in fact can be difficult to prove in a toxic tort case, because the cause of many diseases, like cancer, is uncertain; the effects of toxic-substance exposure may take years to show up; and plaintiffs often have been exposed to other potentially harmful substances besides the one at issue. Experts in various fields often must testify at a trial about what they believe could have caused a plaintiff's injury or disease.

The second kind of causation a plaintiff must prove is that a particular tort was the proximate cause of his or her injury. Proximate causation involves questions of whether the defendant had a duty to the plaintiff, and whether the particular injury was foreseeable to the defendant. Although proximate cause sounds complicated, in toxic tort cases, if cause in fact is established, proximate cause usually is also established.

Finally, a toxic tort plaintiff must be able to prove that he or she suffered damages. A person injured by a toxic tort may be able to recover monetary damages for property damage, past and future medical expenses, past and future pain and suffering, lost wages, loss of future earning capacity, and punitive damages. Punitive damages, which can reach into the millions of dollars, go beyond compensating the plaintiff for his or her actual losses and are intended to punish the wrongdoer and deter future similar conduct.

Particular Types of Environmental Toxic Torts

Exposure to asbestos products has caused personal injuries and deaths, and many toxic tort suits have been brought to compensate the victims of that exposure. Plaintiffs have based their claims on negligence, strict liability, design defect, failure to warn, and civil conspiracy theories, among others. Chemicals can also be the subjects of toxic tort lawsuits if they cause injuries. These types of cases can be difficult to prove because the injury or disease may not be discovered until years after the original exposure.

Hazardous waste toxic tort cases often are brought as class actions because hazardous waste disposal sites can affect large numbers of people. It can be difficult to identify the entities responsible for causing injuries because many hazardous waste sites were abandoned many years ago and poor records were kept, and the cause of injuries and diseases is not always clear. Pesticides, too, give rise to environmental toxic tort cases. Pesticides are regulated by a number of federal agencies. Before a pesticide can be sold it must receive approval from the Environmental Protection Agency (EPA). Because the government approves pesticide labels, plaintiffs injured by pesticides usually cannot bring actions claiming they were not properly warned by labels.

Radiation and electromagnetic energy exposure can also cause cancer and other health problems. Radiation exposure is a well-known danger. There are government programs to compensate those who were exposed at federal government mines, workplaces, and nuclear test sites. The health effects of electromagnetic energy exposure, by contrast, are much less well established, and plaintiffs may face uphill battles in proving cause and effect.

Conclusion

Environmental toxic torts are serious business. If you should find yourself in the position of a potential plaintiff or defendant in a toxic tort lawsuit, it is imperative that you contact an attorney at once. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in environmental or personal injury law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests. Only with a veteran attorney on your side can you be sure to achieve an outcome that best compensates you for your losses or minimizes the damages that you have to pay out.

If you think you may be a member of a large group of people who were injured by the same environmental toxin, or if you are a defendant in such a suit, be sure to also investigate the attorney's background in class action litigation. Class action lawsuits present unique challenges, and the best advocate is therefore one familiar with not only the substantive aspects of the claim, but also the procedural requirements. Many attorneys have experience in both environmental toxic torts and class action litigation.

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