How do you connect an illness today to an injury 30 years ago? That’s the fundamental issue with “toxic torts,” the catchall phrase that covers pollution, environmental and toxic injury cases.
A toxin is an injury caused by or relating to a pollutant in the air, ground or water. A tort is a “wrongful act” for which a party can sue and sadly has nothing to do with cake when used in this way.
You would think it isn’t so difficult to prove an injury, even years later – why else would you develop asbestosis unless you’d worked for the defendant’s sheet metal factory that was full of asbestos fibers?
Most of the time, however, it is not so simple.
Toxic torts sit on a very wide spectrum of injuries. Since there are so many different types of pollutants, there are a host of different illnesses that can emerge either immediately or decades later. Plaintiffs can be exposed to chemicals from things like:
Most of these contaminants take years to affect the body, causing changes slowly over time. Once the plaintiff realizes there is a physical problem, his or her lawsuit will likely fall under one of five possible claims:
The statute of limitations can prove to be a significant issue for plaintiffs, considering that many years can pass before they realize they are ill. However, the law recognizes a tolling of the statute until discovery of the illness for this purpose.
What causes even more of a problem than the statute of limitations, however, is causation.
In toxic tort causes, courts usually apply a negligence standard rather than strict liability. For negligence, this means that the plaintiff has to prove that the defendant owed him a duty, that he breached that duty, the defendant was both the cause in fact and the proximate cause of his injuries, and that the defendant caused a legally recognized harm.
The strict liability standard is used when liability is incurred for causing harm to someone (to “life, limb or property”) and the plaintiff doesn’t need to prove negligence or intent. This is generally for situations seen as so inherently dangerous that the plaintiff’s work is already done.
Courts will apply the strict liability standard to toxic tort cases if they feel the polluter was partaking in something abnormally dangerous.
Normally, however, plaintiffs have to prove general negligence standards, which include causation. This is exceptionally difficult, given that multiple risk factors for illness are present, and the standard is the “but for” test – “but for” the defendant’s conduct, the plaintiff would not be ill.
Since there are many environmental factors that could have affected the plaintiff over the years, the defense is already written.
There are two types of causation to prove. Not only do you have to prove general causation – “This type of substance caused my injury” – but you also have to prove specific causation – “The substance on the defendant’s property in 1983 caused my injury today.”
Surprisingly, general causation can be more difficult to prove because of a lack of scientific understanding. The question remains: Does this chemical have the ability to cause this illness, and if so, to what extent? There are so many types of cancers that we can only treat and not control.
Then again, specific causation can be just as frustrating. Attempting to identify molecular structures decades later and then extrapolate exactly which strains were tied to which work sites at which time can prove to be next to impossible. Scientists might be able to establish that a certain substance can cause the type of harm in question, which would satisfy the first hurdle of general causation.
But then the plaintiff has to show that the specific harm was the end result of exposure to that particular substance at a specific time and place. The plaintiff has to prove by a preponderance of the evidence (more likely than not) that the defendant was the cause of the plaintiff’s injuries.
It becomes quite expensive in the end.
Plaintiffs must put on expert testimony, which is mandated by Daubert v. Merrell Dow Pharmaceuticals. The Daubert test requires that the trial judge serve as gatekeeper for any expert scientific testimony and determine whether it can be admitted. This is used in federal courts and some state courts. The judge will look at whether:
This standard has proven to be very difficult for plaintiffs to meet. Judges often find that experts’ submitted testimony is uncertain and unreliable given the unsettled scientific climate.
This is where epidemiology – the study of the cause and distribution of illness in the human population – becomes essential to your case.
Epidemiological studies can make or break a plaintiff’s case, because if the plaintiff can illustrate that illnesses arose in a certain area in tandem with his illness, he can show a significant increase that did not just raise a hypothetical risk of injury, but actually more than doubled the risk of harm. This ensures a showing of preponderance of the evidence.
Here is where it becomes even more complicated.
Let’s say a group of construction workers develop asbestosis from multiple sources 20 years before. They bring a class action suit against multiple defendants. They get over the first hurdle, proving that their illnesses were indeed caused by asbestos. Now they have to prove that a particular defendant’s asbestos was a proximate cause of their injuries and that, more likely than not, it was the defendant’s products that did it.
Courts have stated that plaintiffs need to provide sufficient evidence to illustrate that exposure to a toxin was a “substantial factor” in the development of their disease. If other parties’ actions were the predominant factor in bringing about the harm in question, then the defendant was not a substantial factor and not the legal cause of the plaintiff’s illness.
Given that many plaintiffs would be left without recourse because of this barrier, most courts have held that proximate cause in asbestos causes should be considered in the “frequency, regularity, proximity test” used in Lohrmann v. Pittsburgh Corning Corp. This test tries to reduce the burden on plaintiffs while still helping innocent defendants. The Lohrmann test holds that when a plaintiff claims multiple sources of exposure to asbestos, he must show evidence:
Toxic tort cases can quickly spiral out of control in terms of time and cost. Consider asking an attorney for help determining causation – and if you haven’t looked, check out the Enjuris law firm directory.