We tend to think of personal injury lawsuits as being person-to-person... like car accidents, slip and falls, and that sort of thing. But you can be injured by a company just like you could be injured by another person and a company needs to be held accountable, too.
A company, especially one that engages in high-tech manufacturing or other chemical processes, is subject to rigorous federal regulations and standards for managing how chemicals are released into the environment. After all, chemicals and waste need to go somewhere.
But what if toxins are being released into (literally) your own backyard?
We can become ill from toxins in our air, water, or soil. We might not smell, see, or be aware that they’re there, and the effects might not become apparent for months or even years.
Lockheed Martin faces litigation
That’s what recent complaints against defense contractor Lockheed Martin allege — that the company created an environmental hazard from its complex in southwest Orange County.
Area residents and people who worked for another nearby company were diagnosed with multiple sclerosis, brain lesions, cancer, birth defects, and other diseases that they claim are the result of Lockheed Martin’s storage and transportation of toxic waste.
Lockheed Martin is a manufacturer of heavy weaponry. Its processes generate waste that includes metal sludge, oil and grease, metal scraps, cyanide and spent acid solutions. In the current claims, one of which is a class-action lawsuit, plaintiffs say Lockheed stored toxins in leaking tanks, dumped toxic waste sludge in trenches, and transported waste in leaky underground pipes.
In addition, groundwater testing underneath Lockheed’s facility allegedly detected contaminants in concentrations up to 386,000 parts per billion when the EPA’s limit is 5 parts per billion (but ideally, the concentration should be zero).
The lawsuit also claims that toxins were released directly into the air and leached into the soil.
The legal complaint alleges that Lockheed Martin was aware that its actions could be harmful to the health of individuals who live and work nearby but didn’t change its practices.
Florida toxic tort laws
A toxic tort is an injury or illness caused by a pollutant that contaminated water, air, or soil because of a defendant’s negligence.
Causes of toxic torts
There are a number of possibilities for how you might be affected by a toxic tort, but these are some common examples:
- Residential exposure. “Exposure” is any way a toxin enters your body, whether it’s by mouth, through your skin, or as you breathe. This might include toxic mold, asbestos, or other contaminants in your air, water, or soil.
- Workplace exposure. You might be exposed to toxins in your workplace, and it could be either a high-level exposure as a result of an accident or low-level exposure that’s present over a long period of time.
- Pharmaceutical exposure. There’s a lengthy history of severe illness or injury that results from defects in medications, implants, and other medical devices.
- Consumer products. You can become ill from exposure to cleaning products, pesticides, chemicals found in plastics, and even flame retardants in furniture or carpets. If you’ve developed an illness to a chemical in your home from a consumer product, it’s also considered a toxic tort.
Within these categories, a company might be responsible for causing your illness from exposure under these types of circumstances:
- Asbestos exposure that causes lung cancer, mesothelioma, or another lung disease
- Lead paint exposure that causes brain damage in children
- Pesticides, including dioxin and DDT, which cause birth injuries (i.e. birth defects)
- Contamination of groundwater or soil because of chemicals or waste dumping
- Toxic landfill waste, which can cause leukemia and other illnesses
- Mold exposure, which could cause respiratory illness
- Dry cleaning chemicals and solvents, which cause brain and major organ damage
- Environmental exposure to gases or airborne toxins
Damages for a toxic tort
If a company has contaminated your environment and it has caused you to become ill, you can recover damages for:
- Medical bills (past and future)
- Lost wages (and potential loss of future earnings)
- Pain and suffering
- Emotional distress, and
- Possibly punitive damages.
The amount you’d recover depends on the severity of your illness and the amount of costs you incurred in order to treat your illness or injury.
In tort law, the plaintiff can recover for both economic and non-economic damages. Your economic damages are the ones that have a specific monetary value. The non-economic damages include pain and suffering, emotional distress, loss of consortium, and other losses that don’t have a specific financial cost.
Punitive damages are sometimes awarded in a case where the court finds that the defendant’s behavior was so egregious or intentional that an additional punishment is warranted. Usually, the purpose is to serve as a deterrent to the defendant and similar entities so that the action isn’t repeated.
In Florida, there is a cap on punitive damages that is equal to 3 times the value of compensatory damages awarded to each claimant or $500,000.
Liability for a Florida toxic tort
There are a few grounds for a toxic tort lawsuit:
- Negligence. You can show negligence by proving that the company had a duty to keep its employees, customers, or area residents safe and breached that duty.
- Fraud. If a company intentionally misrepresents the safety of a product or substance OR if it intentionally conceals hazards, it might be committing fraud.
- Strict product liability. This would be the legal avenue for a claim about an injury or illness related to a product or pharmaceutical defect. You don’t need to prove fault in a strict product liability claim. Instead, you’d prove that the product was unsafe when used according to the manufacturer’s specifications.
Proving a chemical tort
In a “regular” personal injury tort claim, you often know who the defendant is and the more complicated part is proving that they’re responsible for your injury. But a chemical claim, especially against a large company, can be much more difficult in several ways.
First, you have to prove that you were exposed to a particular toxin. That means you need an expert to perform a chemical analysis to determine that the toxin is or was present in your environment in a quantity that would be able to cause illness.
Second, you have to prove that the symptoms you’re experiencing were caused by a toxin. You might have a lingering cough, difficulty breathing, skin irritation, headaches, or even a cancer diagnosis and — although those symptoms might be associated with a particular chemical or toxin — it might be very difficult to prove that the condition was caused by that chemical and not caused some other way (including your own genetics).
Third, you need to show that the chemical or toxin was caused by the actions of a particular company. Proof that a chemical is present in the air you breathe near your home isn’t the same as proof that a manufacturing plant a few miles down the road is expelling that chemical into the air.
Another complicating factor is that in many instances, symptoms related to an illness from a toxin often don’t appear for years or even decades after the exposure. And in many cases, the documents or files related to the chemicals are gone so many years later.
The court might consider these factors in order to establish that chemical exposure caused your illness:
- Medical testimony or documentation by experts that link the toxin to your illness.
- Evidence that you were exposed to the toxin. For example, if you lived near a manufacturing plant that dumped chemical waste, you’d need to prove that the contamination reached your home through the air, water, or soil. Or, if you believe your respiratory illness was caused by toxic mold spores, you’d need an expert who tested the property for the existence of mold.
- Evidence of illnesses of people in similar environments. If the contamination affected your town or neighborhood, you’d need testimony that your neighbors or other people nearby had similar diagnoses. If the exposure was in your workplace, you’d need to show that other people who were exposed to the same chemical or substance are also experiencing its effects.
- Public warnings about the toxicity or danger of the chemical. If a government agency like the Food and Drug Administration (FDA) or Environmental Protection Agency (EPA) has issued warnings or recalls about the hazards related to the chemical, that information can help your case.
If you believe that you’ve been injured or suffered an illness because a company exposed you to toxins, you need a lawyer with experience in these types of cases.
The doctor doesn’t need to believe or agree that your condition was caused by chemical exposure — that’s where your lawyer comes in. The doctor’s job is to diagnose and treat your illness.
The doctor might be aware that the type of cancer you have, for example, is often linked to a certain chemical that might be in drinking water. But unless the doctor is an expert in that specific area (which they’re likely not), the cause isn’t his or her responsibility to determine. The doctor should, however, take very careful and detailed notes in your medical record about your condition, symptoms, and what led them to your diagnosis.
Why consult a Florida toxic tort lawyer?
A large company likely has very deep pockets — and likely has a lot to lose in a lawsuit, whether it’s a large settlement, legal fees, or damage to its reputation. Most companies don’t want the bad press of being linked to a toxic tort. For that reason, the company might offer you a settlement with a non-disclosure agreement. It might make an offer that sounds like a lot of money, in exchange for your staying quiet. The company probably has a legal team whose sole purpose is to make cases like yours “disappear.”
While a lot of zeros on the end of a settlement amount might be tempting, it’s important not to accept an offer without consulting a lawyer. Especially if your condition leaves you with a disability or if you will have extensive medical costs, you need to be sure that what you’re being offered is fair compensation.