Toxic Torts Overview

Learn the basics of toxic tort law: liability for damage from pesticides, chemicals, and pharmaceuticals drugs.

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 chemicals which are thought to be safe turn out to be otherwise. 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 issues in toxic tort claims, and what types of damages are available to plaintiffs.

Toxic Tort Claims and Defenses

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 often brought on behalf of a group of people, in what is called a class action lawsuit. One example of a class action lawsuit is when a group of workers alleges exposure to asbestos while on the job. Another class action may arise when residents of a neighborhood allege that local groundwater has become contaminated by a pesticide. While class actions are common, a single individual may also bring a toxic tort lawsuit.

Toxic tort claims usually arise in the following contexts:

• Occupational exposure - when industrial workers are exposed to toxins, at high levels for a short period of time or at lower levels over an extended period. Examples of this type of toxic tort litigation include lawsuits based on workers' exposure to asbestos and benzene on the job. (To learn more about asbestos and benzene litigation, see Nolo's articles Mesothelioma and Asbestos: An Overview and Benzene Exposure, Health Risks & Litigation.)
• Pharmaceutical drugs - when pharmaceutical drugs cause unintended side-effects. Drugs that have been the subject of toxic tort litigation include the antidepressants Zoloft and Prozac. (To learn more about claims against pharmaceutical drug companies, see Nolo's article Product Liability Claims Involving Pharmaceutical Drugs.)
• Exposure in the home - when people breathe or ingest substances in their home, such as toxic mold. (To learn more about mold exposure, see Nolo's article Toxic Mold Basics.)
• Consumer products - when people use products, such as pesticides, that cause unintended illness.

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. (To learn about the different theories of liability in toxic tort cases, see Nolo's article Toxic Torts: Legal Theories of Liability.)

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. (To learn about the defenses available to defendants in toxic tort cases, see Nolo's article Toxic Tort Litigation: Common Defenses.)

Special Issues in Toxic Tort Cases

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.

Proving Causation

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.

Stale Evidence

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.

Reliance on Scientific Evidence

Toxic tort lawsuits are hugely dependant 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.

Who to Sue in Toxic Tort Cases

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:

• manufacturers and distributors of chemicals
• manufacturers and distributors of machines or devices that expose workers to chemicals
• owners and lessors of premises where the plaintiff was exposed to toxic chemicals
• manufacturers of equipment that failed to keep the plaintiff safe from chemicals, or
• companies that stored the chemicals.

The types of damages available to plaintiffs in toxic tort cases might include compensatory damages, punitive damages, injunctive relief, and attorneys fees.

Compensatory Damages

These are the damages that reimburse the plaintiff for the cost of injuries or for any money spent as a result of the injuries. Compensatory damages include medical expenses, lost wages, lost earning capacity, compensation for pain and suffering, and loss of consortium (companionship). (To learn more about compensatory damages, see Nolo's article Damages in Defective Products Cases.)

Plaintiffs can also seek a type of damages unique to toxic tort cases compensation for medical monitoring. In medical monitoring, plaintiffs (usually in a class action lawsuit) exposed to a toxin are screened periodically in order to detect and provide early treatment for medical problems linked to the toxin. Courts are split as to whether medical monitoring damages can be awarded to people who show no sign of illness, or are limited to people who already exhibit symptoms of the disease. Either way, medical monitoring damages are set up in one of two ways: through a fund that plaintiffs can dip into as costs arise, or as a lump-sum payment intended to cover any future medical monitoring costs.

Punitive Damages

The purpose of punitive damages is to punish the defendant. These damages are generally only available in toxic tort cases if the defendant's conduct was especially egregious or outrageous.

Injunctive Relief

Plaintiffs in toxic tort cases may be able to get an injunction, which is an order prohibiting the defendant from taking certain actions (the marketing of a harmful product, for example).

Attorneys' Fees

In most lawsuits, each side pays its own attorneys' fees. However, some statutes specifically state that a defendant must pay a plaintiff's attorneys' fees in certain situations. For example, in the realm of toxic torts, many environmental cleanup statutes allow plaintiffs to recover their attorneys' fees from defendants.

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.

You may also want to consult with a lawyer to find out if there is an existing class action lawsuit regarding the specific chemical or drug that concerns you, and if so, whether it is advisable for you to join that class action. (If there is an existing class action, consider contacting the lawyers for the class directly; they will likely be very interested in talking with you.) Such initial consultations are usually free of charge.

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).