Receiving compensation after being exposed to a toxic substance
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.
Common causes of toxic tort injuries
Toxic tort claims can arise in a host of situations. Here are the 4 most common situations:
- Exposure at work. A toxic tort claim may be appropriate when workers are exposed to toxic substances at high levels for a short period of time or low levels for an extended period of time.
- Exposure to certain pharmaceutical drugs. Sometimes pharmaceutical drugs cause unintended side-effects or manufacturers fail to warn consumers about the side effects. In such cases, a toxic tort lawsuit may be appropriate.
- Exposure in the home. When people breathe or otherwise ingest substances in their homes (like toxic mold), a toxic tort lawsuit may be appropriate.
- Exposure through consumer products. When people use products that cause unintended illness, a toxic tort claim may be warranted.
What legal theories support a toxic tort claim?
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:
- You were owed a legal duty
- The legal duty was breached, and
- The breach caused the harm complained of.
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.
2. Strict liability
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.
3. Intentional misrepresentation or fraud
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.
4. Workers’ compensation claim
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.
California’s Proposition 65
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.
Proposition 65 doesn’t ban the use of any specific toxic substances, but it does require several things intended to help Californians make informed decisions about their exposures to certain chemicals.
For example, Proposition 65:
- Requires businesses to provide “clear and reasonable” warnings to Californians before knowingly exposing them to chemicals that cause cancer, birth defects or other reproductive harm. These chemicals might be in products the businesses sell, in homes or workplaces, or released into the environment. As a result, the warnings might appear on consumer product packaging, on signage in workplaces, or in pamphlets provided to tenants.
- Prohibits California businesses from knowingly discharging significant amounts of certain chemicals into sources of drinking water.
- Requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm. This list, which must be updated at least once a year, has grown to include more than 900 chemicals since it was first published in 1987.
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.
How does Proposition 65 impact my toxic tort claim?
If you suffer an injury as a result of exposure to a toxic substance, you have to file a workers’ compensation claim or a personal injury lawsuit in order to receive compensation for your injuries. However, you cannot receive compensation for your injuries from a Proposition 65 lawsuit. Rather, a Proposition 65 lawsuit is a separate lawsuit designed to punish the offending business.
Penalties for violating Proposition 65 can be a fine of up to $2,500 per violation per day.
Defenses to toxic tort claims
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:
- The toxin you were exposed to is capable of causing the illness you contracted, and
- The exposure, more likely than not, caused your illness.
As you might imagine, toxic tort cases almost always feature dozens of expert witnesses. The defendant (i.e., the business) may choose to hire:
- Scientific experts to testify that the toxin doesn’t cause the illness contracted by the plaintiff
- Medical experts to testify that some other factor (such as genetics) caused the plaintiff’s illness
The plaintiff (or their attorney), on the other hand, can hire experts to prove just the opposite.
Who can be sued?
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:
- Manufacturers and distributors of chemicals
- Manufacturers and distributors of machines or devices that exposed workers to chemicals
- Owners of locations where the plaintiff was exposed to toxic chemicals
- Manufacturers of equipment that failed to keep the plaintiff safe from chemicals
- Companies that stored the chemicals
California statute of limitations
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.
Toxic tort personal injury damages
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.