Were you injured by a chemical or toxin that took ages to diagnose?
Written by: Enjuris Editors
In Texas, as in most states, toxic torts are all over the legal map, ranging from contaminated drinking water to asbestos fibers in a factory causing lung cancer in its workers 30 years later.
In most personal injury cases, the harm that was done is clear – for instance, a woman slips on a puddle in a grocery store and hits her head on the floor. There is direct and easily explainable cause and effect.
However, let's say a grocery store employee neglected to clean up a raw meat spill, and when that woman fell, she landed right in salmonella bacteria. Then she developed gastroenteritis the next day. Would she realize what had happened and who was at fault, or would she think she developed the illness independently?
Tying cause and effect together can be very difficult, and this above is an example linked very close in time. That link can be incredibly difficult to prove as time ticks by.
This is what happens in most pollution and toxic injury cases, which is why you should talk to a personal injury attorney in your state if you think you have suffered this sort of injury. Each state, including Texas, has its own laws that will have bearing on your toxic tort case.
Toxic tort explained
Toxic torts refer to claims in which the plaintiff was harmed by something like:
air contamination from dangerous gases or particulates
These claims can have one or more defendants, depending on the circumstances (for instance, if the defendant was a company shipping defective medications against state and federal laws, there would be a number of individuals and corporations involved).
Suing for personal injuries can be difficult, however, because many cases are funneled through the workers' compensation system if the worker was hurt on the job. While you might still be able to bring a lawsuit against the manufacturer of the toxin (as it was made by an independent third party), the majority of your case will be spent in the workers' compensation system. You can read more about workers’ compensation in Texas here.
What must be proven in a pollution and toxic injury case
As with any personal injury claim, you must prove the following facts:
You were owed a legal duty by the company, as the company was obligated to provide you with a safe workspace free of contaminants and toxins.
That legal duty was breached by the company in that it failed to keep your workplace safe.
The breach caused harm to your body. You must show that the breach was a direct or proximate cause of whatever harm you have suffered. (This is referred to as "causation" and can be very difficult to prove in a toxic tort claim.)
Show that you suffered specific harm and exactly how much.
Causation is the critical factor in toxic torts
Tying together the toxin and your injury is the hardest part of any toxic tort case. You have to illustrate that the exposure was the "immediate cause" of your injuries and that you would not have suffered but for that toxic exposure.
For example, say you suffer from asbestosis. You worked as a laborer on a jobsite back in the 1960s, and part of your job meant dealing with asbestos fibers. Now you need to prove that those specific asbestos fibers are the cause of your current asbestosis.
This means that but for those asbestos fibers, you would not be suffering from asbestosis.
This can be particularly difficult in Texas, which responded to a huge wave of asbestos litigation by cracking down hard. In 2007 the Texas Supreme Court issued the country’s strictest opinion on asbestos exposure, stating that the plaintiff must show his exposure to the defendant’s asbestos-containing products “was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff… inhaled or ingested, and hence to the risk of developing asbestos-related cancer.”
This posed issues for plaintiffs who only had frequent, regular and proximate exposure to asbestos, which satisfied the test for almost all other states. That provided a low-level exposure to asbestos, but it did not show whether it rose to the necessary dose required to cause cancer. This “substantial factor” test was intended to weed out those who were trying to take advantage of the wave of asbestos litigation sweeping the country.
Proving causation in asbestos-related cases can sometimes be easier, but not always. Many companies will deny that you were exposed to asbestos at their company. Fortunately, a good personal injury attorney can access company documents and often prove that the company knew the equipment contained asbestos and could potentially cause cancer.
But when it comes to other toxic and pollution exposures, proving causation can be extremely difficult. The issue is that health-related conditions such as cancer or breathing problems because of mold exposure are more challenging to trace back to a single cause.
Health-related conditions due to mold exposure are challenging to trace back to a single cause.
For instance, take chromium-6, a chemical that still lurks in much of America's drinking water. If you drink that for years, it could end up causing stomach cancer.
But was your cancer caused by ingesting the heavy metal, or do you have bad genetics? Does stomach cancer run in your family? Is there a high incidence of stomach cancer in the area? There are many ways to disprove causation in something like that.
Clearing the causation hurdle in court
Just because causation is difficult to prove doesn't mean that you shouldn't try. There are some effective ways to prove causation: using strong medical testimony from health care experts; evidence of exposure; establishing evidence of illness in others who have had a similar rate of exposure, like your coworkers; and product recalls of a medication.
Any kind of illustrative help like photographs, expert testimony, charts, and records can help you nail down exactly when you were exposed to the toxin and where that toxin came from. Your attorney will help you with all of this.
Enjuris Tip: Texas courts require expert testimony to prove a toxic tort personal injury case, according to the National Law Review.
If you think you have been harmed by pollution or a toxic substance in Texas, you need to work with a personal injury attorney; these cases are complex, and big companies have big legal budgets.
And as we noted earlier, Texas courts will be all too happy to toss out toxic injury cases without strong evidence of causation.