When can companies be held liable for damages caused by pesticides, chemicals, and other toxic substances?
A “toxic tort” lawsuit alleges that a toxic substance harmed the plaintiff or their property.
Tennessee courts have seen their share of high-profile toxic tort lawsuits, including a lawsuit stemming from the Tennessee Valley Authority Kingston Fossil Plant ash spill that caused the deaths of 50 people.
Toxic tort litigation can take several years and—although the verdicts and settlements tend to be high—plaintiffs face obstacles that usually aren’t present in other types of personal injury cases.
Let’s take a closer look at toxic tort claims in Tennessee.
Common causes of toxic tort injuries
Toxic tort claims generally arise from one of the following situations:
- Work exposure. 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.
- Pharmaceutical drugs. A toxic tort claim might arise when a consumer takes a pharmaceutical drug that is unreasonably dangerous or has unintended side effects.
- Home exposure. When people breathe in or ingest toxic substances in their home, a toxic tort claim may be appropriate.
- Consumer products. When people use consumer products that cause illness, a toxic tort claim might be appropriate.
Though the situations listed above are the most common, there is, unfortunately, no limit to the situations in which you may be exposed to toxic substances.
Legal claims to recover damages for toxic tort injuries—what do I need to prove?
There are several legal claims that can be made to recover toxic tort damages depending on the specific circumstances of your exposure.
Let’s take a look at the most common bases.
Toxic tort claim based on negligence
Most toxic tort cases are brought under the legal theory of negligence. Negligence essentially asserts that the defendant was careless and the defendant’s carelessness caused the injury.
Let’s look at an example:
In this example, the commercial truck driver or the trucking company would likely be found negligent due to the driver’s carelessness in failing to properly close the container.
When negligence is alleged, the plaintiff must establish 3 elements:
- The defendant had a duty to act with reasonable care,
- The defendant breached their duty, and
- The breach was the cause of the plaintiff’s injuries.
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 did anything “wrong.” The plaintiff need only prove that the activity causing the harm was “abnormally dangerous.”
In determining whether an activity is abnormally dangerous, Tennessee courts consider the following non-exclusive 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
The most common example of strict liability is product liability. When a manufacturer sells a product that is unreasonably dangerous even when used properly, the manufacturer will likely be held strictly liable for any injuries that result from the dangerous product.
The jury found that, over a period of several years, Kenneth was exposed to asbestos-containing products sold by North Brothers. The jury also found that the asbestos-containing products were unreasonably dangerous and caused the mesothelioma cancer that ultimately took Kenneth’s life.
Workers’ compensation claim
Workers’ compensation is a form of insurance that provides financial benefits to workers who are injured on the job. In Tennessee, 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.
Common obstacles plaintiffs face in toxic tort cases
Toxic tort cases are notoriously difficult to litigate and win. The main hurdle plaintiffs face is proving causation.
Causation is the link between the defendant’s behavior and the harm. Regardless of the legal theory that serves as the basis for the lawsuit, the plaintiff has to prove that the defendant’s action caused their injury. In other words, if it weren’t for the defendant’s action, the plaintiff wouldn’t have suffered an injury.
Causation is particularly difficult to prove in toxic tort cases for 2 reasons:
- The scientific community may disagree on whether a toxic substance caused the injury at issue (this is particularly common when the toxic substance is relatively new).
- Exposure to a toxic chemical often doesn’t produce visible harm until years or even decades after the initial exposure. This time gap allows defendants to argue that some other intervening factor caused the harm, such as the plaintiff’s genetics, lifestyle, or another toxic substance.
In addition to the problems with causation, plaintiffs in toxic tort cases face other hurdles:
- Stale evidence. When a lawsuit is brought years after the incident giving rise to the lawsuit, evidence can be difficult to find. Documents may have been destroyed and witnesses may be dead or may have forgotten important information.
- Admissibility of expert testimony. Expert testimony is critical for proving causation in a toxic tort case. However, expert testimony is only admissible if it meets certain standards (commonly referred to as the “Daubert standards”). This requirement gives defendants the opportunity to challenge every expert the plaintiff wants to use, resulting in lots of extra time, money, and risk.
- Deciding who to sue. It’s not always easy to determine who’s responsible for a toxic tort exposure. Potential defendants may include manufacturers and distributors of chemicals, manufacturers and distributors of machines or devices that expose 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, or companies that disposed of the chemicals.
Statute of limitations in Tennessee toxic tort cases
Tennessee limits the amount of time you have to file a civil lawsuit. This time limitation is referred to as the “statute of limitations”.
For toxic torts in Tennessee, you have 1 year to file your lawsuit.
The clock generally starts ticking on the date you are exposed to the toxic substance. However, in some cases, the “discovery rule” may apply. Under the discovery rule, the clock doesn’t start ticking until you learn (or reasonably should have learned) that you suffered an injury.
Determining when the 1-year statute of limitations begins is particularly difficult in toxic tort cases. The best thing you can do to preserve your rights is to meet with an experienced Tennessee attorney as soon as you think you may have a claim.
In 2008, a coal ash storage pond retaining wall collapsed at the Tennessee Valley Authority (TVA) Fossil Plant in Harriman, Tennessee. The collapse sent 7.3 million tons of toxic waste into nearby homes and the Cinch and Emory rivers.
Roane County initially declined to sue the TVA, instead accepting the TVA’s offer to spend $43 million on economic development projects in the area. Roane County changed their minds in 2018 when attorneys in a different trial presented evidence that the TVA had not fully disclosed the dangers of coal ash.
When Roane County finally decided to file a lawsuit, the federal court quickly dismissed the case on the grounds that the statute of limitations had expired. The federal judge pointed out that there were plenty of publicly available documents explaining the dangers of coal ash. In other words, Roane County should have known about the potential harm soon after the spill.
As the federal judge explained:
“The plaintiff cannot reasonably contend that ordinary diligence and inquiry into the largest environmental disaster in United States history would not have revealed the dangerous effects of fly ash, one of the toxic chemicals released by the spill, and the threat it posed to plaintiffs’ communities.”
To date, 50 cleanup workers have died and more than 400 others have become ill.
Damages available in Tennessee toxic tort cases
Tennessee allows plaintiffs in toxic tort cases to recover both economic and non-economic damages:
- Economic damages include 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.
In rare cases where the defendant acted intentionally or recklessly, punitive damages may be awarded. Punitive damages are intended to punish the defendant and are capped at $500,000.
Toxic tort cases often result in very high verdicts and settlements. However, toxic tort cases have a reputation for being very lengthy, with many of them lasting several years.
Ready to talk to an experienced Tennessee attorney about your potential toxic tort claim? Use our free online directory to get started.