Your guide to being compensated after being exposed to a toxic substance or chemical
A “toxic tort” is simply a legal claim for an injury caused by exposure to a dangerous substance. The list of dangerous substances is endless, but the top of the list includes:
- Lead-based paint
- Polychlorinated biphenyls (PCBs)
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.
Though known for its clear skies and fresh country air, Montana is also home to one of the most famous toxic tort cases of all time.
In this article, we'll take a look at common situations that lead to toxic tort claims, the legal theories used to support toxic tort claims, some defenses to these claims, the damages available, and last but not least, how to prevent exposure.
Common causes of toxic tort injuries
Toxic tort claims arise in a number of situations. Here are the 4 most common causes:
- 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. The most famous examples are the cases that arose after workers were exposed to asbestos (a mineral that causes severe health problems when inhaled). Another example is the Kingston coal ash spill that was cleaned up by dozens of workers. The workers received damages in 2018 after a jury found that their employer failed to provide protective face masks. Many of the workers became ill and 30 people died from ailments linked to exposure to the toxic elements of coal ash.
- Exposure to certain pharmaceutical drugs. Sometimes pharmaceutical drugs cause unintended side-effects or manufacturers mislead consumers about the side effects. For example, a pregnant woman might take an over-the-counter drug that's harmful to the development of her unborn child despite the lack of such warnings on the bottle.
- Exposure in the home. When people breathe or otherwise ingest substances in their home (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. For example, a California jury awarded $289 million dollars to a groundskeeper who proved that the glyphosate found in the weed killer he used for years caused his cancer.
Libby, Montana asbestos outbreak
Most asbestos exposure cases involve a handful of construction workers who have been exposed to asbestos. Libby, Montana is a rare and infamous exception.
For several decades, the Zonolite Company and its successor, W.R. Grace, extracted millions of tons of asbestos-tainted vermiculite from the ground in Libby, Montana. The miners were exposed and developed asbestos-related diseases, including cancer.
But the miners weren't the only ones exposed.
Local townspeople were also affected when the company distributed their leftover vermiculite for use in playgrounds, backyards, gardens, and roads throughout Libby.
In all, pollution from the mining has been associated with 400 deaths in the Libby area and roughly 1,500 people (about half the city's population) have fallen ill as a result of exposure to asbestos.
What's more, W.R. Grace went on mining for 7 decades despite the company's knowledge that exposure was damaging the lungs of their employees. The company even sold and shipped asbestos-tainted vermiculite to homes across the country to be used as attic and wall insulation. Even today an estimated 35 million homes may be at risk of asbestos contamination because of W.R. Grace's attic insulation product alone.
In the 1980's, scientific evidence showed the link between asbestos exposure and the increasing number of W.R. Grace employees dying from diseases. Soon after, the company was flooded with personal injury lawsuits from employees and residents in and around the town. At one point, W.R. Grace faced more than 112,000 asbestos lawsuits.
In 2002, the U.S. Environmental Protection Agency (EPA) declared the entire city of Libby a Superfund site (a Superfund site is any area in the US that has been contaminated by hazardous waste and identified by the EPA as needing to be cleaned up because it poses a risk to human health or the environment). Twelve years later, the EPA determined the cleanup efforts successful and declared the city safe.
W.R. Grace filed chapter 11 bankruptcy and established a court-ordered $3 billion trust fund for asbestos settlements. A number of settlements have been reached over the last few years and future settlements are likely.
Legal theories that support a toxic tort claim
If you've suffered an injury as a result of your exposure to asbestos or another toxic substance, there are 4 common legal theories that you can use to recover damages.
To establish a negligence claim, you must prove 3 things:
- You were owed a legal duty by a company
- The legal duty was breached by the company, and
- The breach caused harm to your body (i.e., the breach was the direct and proximate cause of your injury).
For example, let's say you're a construction worker and your company forces you to work with asbestos, but fails to provide you with proper equipment to filter the asbestos out of the air.
In this situation, the construction company, which owed you a duty to provide you with a reasonably safe work environment, likely 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 made out a negligence claim against the construction company.
2. Strict liability
Unlike negligence, strict liability exists regardless of fault. 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 drug intended to reduce fevers. But, the drug causes 1 out of every 10 people who take it to have a heart attack. 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 mining company is aware that a certain toxic substance is a clear and present danger to its workers. But, the company fails to warn their workers and doesn't even provide safety equipment to reduce the likelihood of exposure. In this situation, a worker who gets sick as a result may have an intentional misrepresentation or fraud claim against their employer.
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. Most employers in Montana are required to carry workers' compensation insurance and most injuries are covered so long as the injury occurred during the course of employment.
One of the benefits to filing a workers' compensation claim (as opposed to filing a civil 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.
However, there are some limitations to the amount of workers' compensation benefits that you can recover.
Defenses to toxic tort claims
The biggest hurdle for any plaintiff in a toxic tort case (and thus the best possible defense for a defendant) is 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 level of toxins you were exposed to can cause the illness you contracted, and
- The exposure did, in fact, cause your illness.
The first element is generally proven by introducing expert witnesses to explain to the judge or jury the science that establishes the link between the toxin and the illness.
The second element is much more difficult to prove. How can you prove that the substance (though capable of causing your illness) actually caused your illness? Undoubtedly, the defendant will argue that your illness was caused by your genes or your lifestyle or some other substance that you were exposed to.
Fortunately, most Montana courts recognize this challenge and in many cases have ruled in favor of plaintiffs — who simply manage to show that the exposure at issue didn't just raise the hypothetical risk of injury, but in fact more than doubled the risk of harm.
Let's look at an example:
Around the same time, a medical study finds that 20 of 1,000 men exposed to a particular toxin were diagnosed with lung cancer and only 5 of 1,000 unexposed men were diagnosed with lung cancer. This would mean the relative risk of exposure to the toxin is 4.0 (or 4 times as great as the risk of lung cancer without exposure).
This toxin is found to be present in Joe's workplace.
In this hypothetical, the court would likely find that the toxin caused Joe's illness because the exposure more than doubled his risk of harm. Joe would probably be granted workers' compensation benefits.
Statute of limitations
In Montana, the statute of limitations for most toxic tort claims is 3 years. This means that a person must file a lawsuit within 3 years of when they discovered (or by the exercise of reasonable diligence should have discovered) that they were injured by the defendant's conduct.
When an injury or illness occurs so long after the event that caused the harm, it often takes a while for the plaintiff to draw the connection between causation and consequence. As a result, defendants in toxic tort cases often end up arguing that the plaintiff should have discovered they were injured by the alleged conduct years ago and the statute of limitations has since run out.
Who gets sued?
Figuring out who's responsible for your chemical exposure can be difficult in a toxic tort case. As a result, plaintiffs generally sue everybody that had some link to the toxic substance.
Possible defendants in a toxic tort case might 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
Toxic tort damages
In Montana, there are 3 types of damages available to a plaintiff in a personal injury lawsuit:
- Economic damages are intended to compensate you for the monetary losses associated with your injury (for example, medical expenses and lost income)
- Non-economic damages are intended to compensate you for the non-monetary consequences of your injury (for example, pain and suffering and loss of consortium)
- Punitive damages are intended to punish the defendant for intentional or outrageous conduct
Punitive damages are only awarded in toxic tort cases if the defendant acted with actual malice.
How to prevent chemical exposure
Montana State University suggests 3 primary ways to protect yourself from exposure to hazardous substances and toxic chemicals:
- Personal protective equipment. This might include gloves, glasses, gowns, masks, or any other equipment designed to prevent harmful substances from contacting your skin.
- Engineering controls. Machinery or equipment, such as tongs and dustpans, can be used to reduce exposure to harmful substances.
- Work controls. Reduce your exposure to harmful substances through the use of procedure-related techniques at work, such as monitoring the temperature of volatile chemicals.
If you're exposed to a harmful substance, cease the task that created the exposure as soon as it's safe to do so and seek medical attention.
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