Toxic Tort Litigation: Common Defenses

Learn about the arguments and strategies often used by defendants in toxic tort lawsuits.

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Defendants in toxic tort cases, such as manufacturers of pharmaceutical drugs, pesticides, and chemicals, almost always mount a vigorous defense. That's because losing one toxic tort lawsuit often inspires hundreds or thousands of other plaintiffs (injured persons) to file their own claims. And damage awards can be quite high in toxic tort cases, whether the lawsuit is brought by an injured individual or a group of injured people (called a class action lawsuit). The bottom line: Much is at stake for defendants in toxic tort lawsuits, so they spend large amounts of money and time in defending them.

This article discusses the most common defenses used by defendants in toxic tort litigation. (To learn about other aspects of toxic tort litigation, see Nolo's article Toxic Torts Overview.)

Showing Plaintiff Has Not Proved the Elements of the Claim

It is the plaintiff's duty to prove all of the elements of each legal claim in a toxic tort lawsuit. The specific elements vary depending on the legal claim, but in most toxic tort lawsuits the plaintiff must show that 1) the substance was dangerous, 2) the plaintiff was exposed to the substance, and 3) the exposure caused harm to the plaintiff. Defendants can proactively present their own evidence to show that the plaintiff has failed to provide adequate support for their allegations.

Attacking Causation

In most toxic tort lawsuits, the element of causation, such as whether tobacco smoke caused the plaintiff's lung cancer, is a major battleground. In some cases, defendants might point to scientific studies demonstrating that a workplace chemical is not linked to the particular disease at issue. In other cases, defendants might present evidence of the plaintiff's exposure to multiple toxins or chemicals, making it difficult for the plaintiff to prove that the particular chemical at issue in the lawsuit was the one that caused the illness or injury.

Compliance with Government Standards

In many toxic tort cases, government regulations play an intricate role. A defendant that has complied with relevant government regulations -- for example, guidelines related to the handling of a certain chemical, the warnings provided on a drug label, or permissible amounts of a substance in drinking water -- will raise this as a defense, arguing that the company cannot be held liable for behavior that is in accordance with government-defined standards.

Evidence of compliance with government standards is particularly relevant to negligence claims (see Nolo's article Toxic Torts: Legal Theories of Liability), since the plaintiff must prove that the defendant acted in an unreasonably careless manner. Defendants can argue that their compliance with applicable government regulations and standards shows that they did not behave carelessly. (On the flip side, in cases where defendants failed to comply with government or industry standards, plaintiffs can argue that this failure alone demonstrates the unreasonableness or carelessness of the defendants' actions.)

Affirmative Defenses

Apart from presenting evidence that might refute the plaintiff's claims, defendants in toxic tort lawsuits can also make their own separate defenses, called "affirmative defenses." In alleging an affirmative defense, the defendant argues that even if the plaintiff can prove a claim, there is still some reason why the defendant should not be held legally responsible for the harm.

Common affirmative defenses in toxic tort litigation include:

The Statute of Limitations Has Run Out

An injured plaintiff must file a legal claim within a certain period of time. If a plaintiff waits too long, the plaintiff is barred from filing a lawsuit. The time period in which the case must be filed is called the statute of limitations. In toxic tort litigation, because plaintiffs often bring lawsuits many years after the original injury occurred, defendants can argue that the plaintiff did not bring the lawsuit in a timely manner and that therefore, even if the plaintiff has a valid claim, the lawsuit must be dismissed.

Most courts use the "discovery rule" in deciding when the clock starts ticking for purposes of the statute of limitations. That is, the clock doesn't start until the plaintiff discovers the harm. In many toxic tort cases, this is important because the plaintiff may not discover the harm until years later, when symptoms first manifest. (To learn more about the statute of limitations, see Nolo's article Time Limits for Filing a Defective Product Claim.)

The statute of limitations may also be "tolled" or paused if the defendant tried to prevent the plaintiff from discovering the harm, or in some situations where the plaintiff is young or mentally disabled. (To learn more about tolling, see Nolo's article What Does Tolling the Statute of Limitations Mean?)

The Claim Is Barred by a "Statute of Repose"

Some states set absolute time limits on when a plaintiff can sue for certain injuries or products, regardless of when the plaintiff discovered the harm. These laws are often called statutes of repose. (To learn more about statutes of repose, see Nolo's article Time Limits for Filing a Defective Product Claim.)

The Plaintiff "Assumed the Risk"

Defendants in toxic tort cases may  argue that the plaintiff knew of the dangers of the substance and understood the risks that came with being exposed to it, but chose to engage in an activity that caused the exposure anyway. Tobacco companies have used this defense for years, arguing that smokers knew or should have known of the health risks associated with smoking, and that by choosing to smoke anyway, they assumed the risk of any resulting illnesses. (To learn more about assumption of the risk as it relates to tobacco lawsuits, see Nolo's article Tobacco Litigation.)

Some jurisdictions don't permit an assumption of the risk defense.

State Claims Are Preempted by Federal Law

State laws dealing with the same matters as federal laws cannot be enforced if the United States Congress has asserted exclusive power over the matter. This is called federal preemption -- the state law is preempted, or superseded, by the federal law or regulation.

Because there are so many federal regulations in the areas of environmental hazards and workplace safety, defendants often argue that plaintiffs' state law claims are preempted or superseded by federal law, meaning that plaintiffs cannot use them in their lawsuits. Preemption is often a major battleground in toxic tort litigation.

There are three ways that defendants can show that state laws have been preempted by federal law:

  • express preemption. Congress has specifically stated that a particular federal law or regulation occupies the entire field and preempts any state law on the same subject matter.
  • implied preemption. If Congress's regulations are so exhaustive as to occupy the entire area at issue, then it can be said that Congress intended federal rules to preempt any state law regarding the same subject matter.
  • Conflict with state law. If a state law is in direct conflict with a federal law, the state law is preempted.

Getting Help

Claims involving toxic torts are usually not the kind of lawsuits in which you can represent yourself effectively. The legal and scientific issues in such cases are often complex and sophisticated. Depending on your case, you may wish to retain the services of a lawyer who specializes in toxic tort litigation or the precise toxin at issue.

For help in choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. Go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience, if any, with toxic tort litigation).

by: , J.D.

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