A “toxic tort” is a legal claim for an injury caused by exposure to a dangerous substance.
Toxic tort cases are particularly complicated because the impact of the exposure isn’t always immediately understood. Often, it takes years before a person realizes they were harmed by a dangerous substance.
California has been home to more than its fair share of catastrophic toxic tort cases, including lawsuits stemming from a chemical release at the Unocal Refinery in Rodeo, the discharge of sulfuric acid mist from a railcar in Richmond, the dumping of 19,000 gallons of toxic pesticides into the Sacramento River, and the release of a carcinogenic chemical in the Hinley water supply.
Despite (or perhaps because of) these massive lawsuits, California is also known for the radical steps it has taken recently to make consumers aware of toxic chemicals in their products.
Toxic tort claims can arise in a host of situations. Here are the 4 most common situations:
If you’ve suffered an injury as a result of your exposure to a toxic substance, there are 4 legal theories that you may be able to use to recover damages.
To establish a negligence claim in California, you have to prove that:
For example, let’s say that you’re a maintenance worker and your company forced you to use products containing asbestos for 30 years without proper protective gear.
In this situation, your company, which owed you a duty to provide you with a reasonably safe work environment, breached that duty by failing to provide you with the necessary safety equipment. So long as you can provide proof that the exposure to asbestos caused your injury, you will have successfully initiated a negligence claim against your company.
The difference between strict liability and negligence is that strict liability doesn’t require you to prove fault (i.e., a breach).
The theory behind strict liability is that some activities are so dangerous that the person or company who caused the injury should be held liable regardless of whether or not the person or company was negligent.
For example, let’s say a company manufactures a weed killer that causes cancer in 1 out of every 5 people who use the weed killer. In this situation, the product is so dangerous that the company would be held strictly liable for any injuries that resulted from the product regardless of whether the company knew about the side effects.
If a person or company knows that a substance is dangerous but intentionally conceals the danger or misleads workers and/or the public about the seriousness of the danger, the person or company may be liable for intentional misrepresentation or fraud.
Let’s say a company is aware that their product contains a substance that causes cancer, but the company fails to warn consumers about the danger. In this situation, a consumer who gets sick as a result may have an intentional misrepresentation or fraud claim against the company.
If you’re harmed by a toxic substance while on the job, you can file a workers’ compensation claim.
Workers’ compensation is a form of insurance that pays medical expenses and lost wages to employees who are injured while doing their job. Every employer in California is required to carry workers’ compensation insurance.
One of the benefits of filing a workers’ compensation claim (as opposed to filing a personal injury lawsuit) is that workers’ compensation is a no-fault insurance system. This means that you don’t need to prove that your employer did anything wrong in order to receive compensation for your injury. Rather, you simply need to prove that you were injured while completing a work-related task and that your injury is covered by the California workers’ compensation statute.
If you live in California (or even if you don’t), then you might have heard about Proposition 65 (also known as the Safe Drinking Water and Toxic Enforcement Act of 1986).
Proposition 65 became law in November 1986. There’s a lot of misinformation about Proposition 65, so let’s clear up the information and take a look at how Proposition 65 might impact your toxic tort claim.
For example, Proposition 65:
Just about anyone can file a lawsuit against a business for violating Proposition 65, including city and district attorneys, consumer advocacy groups, and private citizens and law firms.
The biggest hurdle for any plaintiff in a toxic tort case is proving causation. No matter what legal theory you use, you must prove that the substance at issue caused your injury.
Practically speaking, this means that you must show that:
As you might imagine, toxic tort cases almost always feature dozens of expert witnesses. The defendant (i.e., the business) may choose to hire:
The plaintiff (or their attorney), on the other hand, can hire experts to prove just the opposite.
Figuring out who’s responsible for your illness can be difficult in a toxic tort case. As a result, attorneys generally sue everybody who had some link to the toxic substance.
Possible defendants in a toxic tort case include:
For most toxic tort cases, you have 2 years from the date of your injury to file a lawsuit. If you fail to do so, your case will be dismissed and you won’t be able to recover ANY damages.
There are a couple of exceptions to the 2-year statute of limitations. For example, if you’re suing a government entity, you must file an administrative claim within 6 months. If you are under the age of 18 at the time of the injury, then the statute of limitations won’t begin to run until you turn 18.
The best way to ensure you file your lawsuit in time is to seek out an experienced California attorney as soon as possible after the injury.
In a California toxic tort case, you can recover economic and non-economic damages. Economic damages are those with a clear price tag (medical expenses, lost wages, etc.). Non-economic damages are those damages that don’t have a definite price tag (pain and suffering, etc.).
You may also be able to receive punitive damages, but only if the defendant’s conduct was particularly reprehensible.