A toxic tort is a legal claim for harm caused by exposure to a dangerous substance —such as a pharmaceutical drug, pesticide, or chemical. While advances in technology, manufacturing, and medicine have introduced thousands of new products into our daily lives, some of those products (and the substances they contain) can cause serious illnesses in humans. Sometimes substances which are thought to be safe turn out to be otherwise (asbestos is one example). Other times, substances known to be dangerous accidentally leak into the air or groundwater. Along with these new chemicals and drugs have come lawsuits—called toxic tort litigation—brought on behalf of individuals or groups of people who have been exposed to and harmed by dangerous substances.
This article discusses the basic law underlying toxic torts—what plaintiffs must prove in order to prevail, situations in which most toxic tort cases arise, who to sue, special proof issues in toxic tort claims, and what types of damages are available to plaintiffs.
In a toxic tort claim, the plaintiff (the person who sues) alleges that exposure to some dangerous substance caused an injury or illness. These claims are sometimes brought on behalf of a group of people, in what is called a class action lawsuit, or as consolidated lawsuits known as multi-district litigation (MDL), but an individual may also bring a toxic tort lawsuit.
Toxic tort claims usually arise in the following contexts:
The specific elements that a plaintiff must prove in a toxic tort case vary depending on the legal theories involved, but generally the plaintiff must show that 1) the substance was dangerous, 2) the plaintiff was exposed to the substance, and 3) the substance caused harm to the plaintiff. (Learn about theories of liability in a toxic tort case.)
Defendants in toxic tort cases often mount a vigorous defense. They can poke holes in a plaintiff's case or present evidence that the plaintiff has not proved all of the necessary elements of their claims. Defendants can also present more procedure-based defenses. For example, a defendant might try to prove that a plaintiff did not bring their toxic tort lawsuit in a timely manner under the applicable statute of limitations laws. (Learn more about common defenses in toxic tort litigation.)
Although each toxic tort case is unique—depending on the toxin involved, the way plaintiffs were exposed, and the alleged resulting illness—there are some common issues that crop up in many toxic tort cases.
The battleground in most toxic tort cases is causation. There are several reasons for this. In many cases it is difficult to trace the source of the chemical or substance that caused the injury. Also, many illnesses caused by exposure to toxins don't manifest until years after the exposure. Plaintiffs must weed out intervening factors (such as exposure to other chemicals) in proving the key element of their case: that it was the specific chemical manufactured or distributed by the defendant that caused the plaintiff's illness.
When a lawsuit is brought years after the initial exposure to the chemical at issue, evidence may be hard to come by. Documents related to the original exposure may no longer be around, witnesses can be hard to track down, and memories may become fuzzy over time.
Toxic tort lawsuits are hugely dependent on science. Studies linking substances to certain diseases or health conditions can make or break a case. Changing scientific developments can instantly change the legal landscape. For example, lawsuits alleging that a certain workplace chemical caused cancer could fail for years, but if a single study linking the chemical to cancer emerges, plaintiffs in the same type of lawsuit may begin winning large damage awards.
Figuring out who to sue in toxic tort cases is another tricky problem. Plaintiffs often don't know who manufactured a dangerous product. For example, suppose a patient is taking a drug that is manufactured by several different pharmaceutical companies. If the patient develops cancer years later, it may be difficult to determine which company manufactured the particular drug the patient took. Similarly, residents who live in an industrial area might allege a link between their health problems and airborne contaminants in the area, but the residents may not know which local factory is actually responsible for the release of those contaminants.
As a rule, plaintiffs usually sue anyone and everyone that could have any possible link to the dangerous substance. This may include: