Who’s responsible when you’re injured by a toxic substance?
A toxic tort is a legal claim for damages caused by exposure to a toxic substance.
Toxic tort claims tend to be more complex than other legal claims. With that in mind, we'll take you through the ins and outs of a South Carolina toxic tort claim while avoiding unnecessary legal and scientific jargon.
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Common sources of toxic tort injuries
Toxic tort claims generally arise from one of the following situations:
|Work exposure||Home exposure||Pharmaceutical drugs||Consumer products|
|Workers who are exposed to toxic substances at work may be able to file a toxic tort claim. The most infamous example of work-related exposure is the millions of construction workers who were exposed to asbestos beginning in the 1930s.||When people breathe in or ingest toxic substances in their homes, a toxic tort claim may be appropriate.||A toxic tort claim might arise when a consumer takes a pharmaceutical drug that is unreasonably dangerous or has unintended side effects.||When people use consumer products that cause illness, a toxic tort claim might be appropriate.|
Some common toxic chemicals that have caused injuries and led to lawsuits include:
- Hazardous/Toxic Air Pollutants
- Per- and Polyfluoroalkyl Substances (PFAS)
- Pesticide Chemicals
- Polychlorinated Biphenyls (PCBs)
In 2013, Dennis was diagnosed with mesothelioma, a deadly form of lung cancer caused by asbestos exposure. He died a year later.
Dennis's family sued Celanese. The lawsuit alleged that the company was negligent for failing to warn Dennis of the dangers associated with asbestos found in gaskets and packing materials at the facility.
"Celanese was fully aware of the asbestos hazards encountered by contractors like Dennis, yet they had a widespread company policy of concealment that their executives memorialized in a memo," said Simon Greenstone Panatier trial lawyer Chris Panatier.
After a lengthy trial, the court awarded Dennis's family $12 million in compensatory damages and $2 million in punitive damages.
Causes of action used to support a toxic tort claim
The term "cause of action" refers to the legal theory that gives a plaintiff the right to sue.
The specific cause of action you use to recover damages for exposure to a toxic substance depends on the nature of your exposure.
Let's take a look at the 4 most common causes of action in toxic tort cases:
1. A toxic tort claim based on negligence
A toxic tort claim based on negligence alleges that the defendant's carelessness created the toxic exposure that caused your harm.
To establish a toxic tort claim based on negligence, you must prove that:
- The defendant had a duty to act with reasonable care,
- The defendant breached their duty, and
- The breach was the cause of your harm.
According to the lawsuit, lab results showed that the student developed several infections associated with mold and mycotoxins. What's more, the lawsuit alleges that the school had knowledge of water damage, water leaks, and mold issues while the student attended the school but failed to take sufficient steps to remedy the issues.
The lawsuit, filed in 2020, is still pending.
2. A toxic tort claim based on strict liability
In toxic tort cases where strict liability is alleged, there's no need to prove that the defendant was careless or otherwise did anything wrong. You need only prove that the activity that caused the harm was "abnormally dangerous."
In determining whether an activity is abnormally dangerous, South Carolina courts consider the following factors:
- Existence of a high degree of risk of some harm
- The likelihood that the harm that results will be great
- Inability to eliminate the risk by exercising reasonable care
- The extent to which the activity is not common
- The inappropriateness of the activity to the place where it's carried on
- The extent to which the activity's value to the community is outweighed by its dangerous attributes
For example, a landowner may be strictly liable to others for harm caused by a rare and highly hazardous substance stored on their property even if the landowner exercised due care in storing the substance.
3. A toxic tort claim based on nuisance
In the legal world, the term "nuisance" refers to a substantial and unreasonable interference with a plaintiff's use and enjoyment of their property.
A nuisance can be private or public. A private nuisance affects a single person (or a small number of people), whereas a public nuisance affects an entire neighborhood or community.
For example, a paper mill that releases toxic fumes into the air may be liable to an adjacent landowner if the landowner can prove that they're no longer able to go outside due to the irritation caused by the toxic fumes or that they can no longer rent their house due to the fumes.
4. A toxic tort claim based on a statutory violation
There are a number of federal statutes designed, in part, to prevent exposure to toxic substances. If someone (usually a government agency or corporation) violates one of these statutes, a legal claim can be filed based on the statutory violation.
Examples of federal statutes that deal with toxic substances include:
- The Clean Drinking Water Act
- The Clean Air Act
- The Comprehensive Environmental Response, Compensation, and Liability Act of 1980
- The Resources Conservation and Recovery Act
What happens if the toxic exposure occurs at work?
Workers' compensation is a form of insurance that pays financial benefits to employees who are injured while doing their job. In South Carolina, most employers are required to carry workers' compensation insurance and most injuries are covered so long as the injury occurred during the course of employment.
Unlike most civil toxic tort lawsuits, a workers' compensation claim doesn't require you to prove that your employer did anything wrong. However, there are a number of procedural steps that must be followed.
The challenge of proving causation in a toxic tort case
No matter what legal cause of action you use to file your lawsuit, you'll need to prove that the toxic substance at issue caused your injuries. The need to prove causation is what makes toxic tort cases so challenging and expensive.
Causation is particularly difficult to establish in toxic tort cases for 2 reasons:
- The scientific community may not agree that a toxic substance causes the injury at issue. This is particularly true when the toxic substance has not been studied at length.
- Many exposures don't produce any harm until years or even decades after the initial exposure. This time gap allows the defendant to argue that some other intervening factors, such as exposure to some other toxic substance, may have actually caused the harm.
Consider the following example:
In 2000, Joe was diagnosed with non-Hodgkin's lymphoma.
Some members of the scientific community believe that a chemical found in the cleaning product "Spotless" causes non-Hodgkin's lymphoma.
In 2001, Joe decided to sue the manufacturer of Spotless and the elementary school, alleging that Spotless caused his cancer.
At trial, Joe introduced experts in the scientific community who testified that the chemical found in Spotless causes non-Hodgkin's lymphoma.
The defendants, however, introduced their own experts who testified that the chemical does NOT cause non-Hodgkin's lymphoma. What's more, the defendants introduced evidence that Joe had a liver transplant in 1995 and that organ transplants make individuals more susceptible to non-Hodgkin's lymphoma. The defendants introduced additional evidence that there are a host of other cleaning chemicals that scientists believe may cause non-Hodgkin's lymphoma.
In this example, you can see why it would be difficult for a jury to conclude that Spotless definitively caused Joe's cancer, and not something else (such as genetics, the liver transplant, or some other chemical he may have been exposed to).
Damages available in a South Carolina toxic tort case
South Carolina allows plaintiffs in toxic tort cases to recover the following damages:
- Economic damages represent the monetary losses caused by your injury, including medical expenses and lost wages.
- Non-economic damages include the non-monetary losses caused by your injury, such as pain and suffering, emotional distress, and loss of enjoyment of life.
- Punitive damages are intended to punish the defendant and are only available if the defendant's actions were willful, wanton, or reckless.
It's important to know that South Carolina caps the amount of certain types of damages that can be recovered. In South Carolina, the following damage caps apply:
- When suing governments and government officials, damages are capped at $300,000 per person or $600,000 per occurrence.
- In medical malpractice cases, non-economic damages are capped at $350,000 per defendant and can't exceed $1.05 million for all defendants.
- Punitive damages are capped at $500,000, or 3 times the actual damages (whichever is greater),
South Carolina statute of limitations for toxic tort cases
South Carolina limits the amount of time you have to file certain lawsuits. When it comes to toxic tort cases, plaintiffs generally have 3 years from the date they discover the injury.
South Carolina toxic tort FAQs
Can I file a toxic tort lawsuit against the government?
Yes. If you sue the government, you must do so under the South Carolina Tort Claims Act. Under the Act, a plaintiff only has 2 years to file a toxic tort lawsuit (although it can be extended to 3 years if the plaintiff files a verified petition within 1 year).
How much does it cost to litigate a toxic tort case?
Toxic tort cases tend to be expensive to litigate due to the need to retain scientific experts. Fortunately, most attorneys handle toxic tort cases on a contingent fee basis, meaning you pay a certain percentage of the damages you recover and nothing if you don't recover any damages.
Where can I find a toxic tort attorney?
Finding the right toxic tort attorney is one of the most important things you can do for your case (and your sanity). These days, most attorneys are found using online directories. The Enjuris Lawyer Directory and the South Carolina State Bar Attorney Directory are good places to start.
See our guide Choosing a personal injury attorney.