A toxic tort is essentially a personal injury case involving the plaintiff’s (your) exposure to a chemical or toxin that causes a health problem or injury. The movies Civil Action and Erin Brockovich, both based on true stories, are prime examples of toxic tort cases as they centered on people who were exposed to environmental toxins caused by large corporations. As can be seen in both movies, an experienced toxic tort lawyer is highly recommended to navigate through the complex and very involved toxic tort cases.
The Anatomy of a Toxic Tort Case
A toxic tort claim can arise any time a person is exposed to a chemical or toxin that causes a health problem or injury. These are just a few examples of a toxic tort that may result in liability for the offending party.
- Contamination of soil or groundwater due to dumping of waste or toxic chemicals
- Contamination of the air or environment due to the release or oils, gases or other toxic chemicals into the air
- Chemical exposure in the work place such as asbestos or unsafe work conditions
- Exposure to mold, especially black mold
- Exposure to lead paint
- Toxins or dangerous chemicals present in defective medications
Who Can Be Sued?
If you are injured as a result of a toxic tort, you may have several defendants to choose from. Essentially, your toxic tort lawyer can sue almost any party responsible for producing or manufacturing the chemical or toxin which caused the injury as well as any third party who improperly disposed of the chemical or failed to maintain the premises or a product in a safe manner. Examples of potential defendants in a toxic tort action include:
- The manufacturer, distributor, and retailer or a toxic or unsafe chemical or substance.
- Contractors using toxic or unsafe chemicals or substances.
- The company who dumped or otherwise disposed of the toxic materials.
- A landowner of any kind who failed to maintain the premises safely. Examples would be landlords who failed to keep the premises safe and habitable or a hotel with outdated materials, such as lead paint or mold.
- Any drug company which produced an unsafe or defective medication.
An exception would be when a worker is injured by a toxin at work. In most of these cases, these injuries and claims are handled through the workers’ compensation system, instead of filing a lawsuit directly against the employer. In these instances, the injured worker may have a claim against the company which manufactured or distributed the toxic substance or chemical.
The Clock Is Ticking: Statute of Limitations
If you are injured or believe that you may have been injured by exposure to toxic chemicals or another substance, there are timelines in which to file your claim in civil court or a workers’ compensation claim. If you do not file your lawsuit or claim timely, you could lose your right to recover damages from the defendant (or wrongdoer). In Washington, you have three years to bring your claim pursuant to Wash. Rev. Code Ann. § 4.16.080 under any of the most common claims:
- Product liability
- Strict liability
- Wrongful death
The big issue is: What happens if your injury is not discovered until years later? Usually, for personal injury claims, the time limit begins from the date of the accident. This is problematic because the accident would be at the time of the exposure. However, if you are exposed to a chemical or toxin which causes cancer, it may take years for those signs to become evident. For example, the effects of asbestos does not manifest for thirty or so years after exposure.
Washington does take this in consideration and has enacted a discovery statute, Wash. Rev. Code Ann. § 7.72.060, which tolls and extends the statute of limitation. Thus, the time limit begins to run from the time you discovered or should have discovered, if you exercised due diligence, the harm and its cause.
It is important that you consult with a toxic tort personal injury attorney about the statute of limitations specific to your case as soon as you know or have reason to know of your injuries.
Proving My Case
The most common causes of actions for toxic tort cases are either negligence or product liability, or both.
In order to prevail (or win) your toxic tort case under a theory of negligence, your toxic tort lawyer will have to prove that the defendant breached their duty of care to you which caused your injuries:
- The defendant owed you a duty of care. Duty of care is a legal obligation imposed on a person or corporation to adhere to a standard of reasonable care while performing any acts that can foreseeably cause harm to others. For example, a company has a legal duty to all citizens to dispose of its waste or toxic chemicals safely.
- The defendant breached its duty of care to you. A breach of duty occurs when an individual or corporation fails to conduct themselves with reasonable care in face of a foreseeable harm. For example, a company that improperly disposes of chemical waste which contaminates drinking water has clearly breached its duty to every citizen who drinks that water. In these cases, evidence that the defendant broke the law or failed to comply with EPA guidelines or other safety standards in place would be good evidence to support your claim.
- The defendant’s breach of their duty to you caused your injuries. This is often the most difficult aspect of your claim, particularly if your injuries are not readily apparent or take years to manifest. That is, you must prove that you would not have been injured but for the defendant’s wrongful act.
- You were in fact injured. Medical testimony and proper documentation of any illness will support your claim for injury.
You may claim product liability under three different theories:
- Design Defect – the design of the product was inherently dangerous
- Manufacturing Defect – a defect occurred during the manufacturing process when the product was not made to its design specifications
- Warning Defect – the manufacturer failed to provide adequate warnings regarding any inherently dangerous product or product parts.
Manufacturers, distributors, and sellers are held strictly liable in a product liability claim. The only things you must prove is that a defect exists, you were injured, and that defect caused your injury. You do not need to prove that a duty exists or that the defendant breached that duty.
Getting Around Causation Problems
Your toxic tort lawyer knows that there are several ways to present evidence to get around causation problems and to help you win your case. These are a few examples.
- Clear medical testimony establishing the connection between the toxin and the illness.
- Evidence of exposure in the first place (such as photos of mold or toxic waste dump sites).
- Documentary evidence such as emails or memoranda.
- A high incidence of similar illnesses in the same area.
- FDA recalls of a particular drug or medication.
- Expert testimony regarding causation.
These facts will help you to establish a solid toxic tort case.
Class Action Lawsuits
Class action lawsuits are another option if many people have experienced similar injuries caused by the defendant. In these cases, each member of the class (or injured parties) have the option of opting into a class action lawsuit. In these cases, a lead plaintiff is designated to attend court hearings. All members of the class may be called upon to testify at a hearing or trial. A settlement or award is divided between the members of the class depending on the degree of their injuries.
Contact a Toxic Tort Lawyer in Vancouver, WA Today
If you have sustained injuries due to exposure to a chemical or toxin, contact a toxic tort lawyer at the Etengoff Pak Law Group.