Toxic torts

DEFINITION: Civil wrongs that involve personal injuries caused by toxic substances.

SIGNIFICANCE: Forensic scientists play a major role in conducting scientific studies to show causal relationships between toxic substances and personal injuries and to assist the government in regulating toxic substances to prevent toxic tort litigation.

Toxic torts, environmental lawsuits, and product liability cases are often linked together as modern causes of action that have experienced tremendous growth in the United States since World War II owing to rapid rates of industrial and technological change. Toxic tort cases involve complex issues of proof—that particular toxic substances cause specific harms. The scientific necessary to demonstrate causation is not easily admissible in a court of law, and admissibility requires satisfaction of the standards set forth in Daubert v. Merrell Dow Pharmaceuticals (1993). Plaintiffs who suffer personal injury from toxic substances thus may not always receive justice because of the difficulties in showing causation. In addition, some injuries caused by toxic substances may not manifest themselves until long after exposure to the substances, and future litigation may be barred by statutes of limitation and issue preclusion because courts have already rendered final decisions in the cases.

History

Toxic tort litigation grew out of common-law tort actions, especially nuisance, negligence, and strict liability claims. Historical examples of common-law claims for injuries caused by environmental pollution include claims filed in England in the early years of the Industrial Revolution. These causes of action were based on allegations that smoke, odors, noise, and toxic substances were affecting the health and welfare of individuals. Modern-day toxic tort cases are usually based on a theory of negligence. If the toxic substance is ultrahazardous, however, strict liability may apply.

Although toxic tort litigation concerns private personal injuries, toxic substances are regulated by society through public law. The US Congress has charged the Environmental Protection Agency with carrying out and enforcing the provisions of many of the federal laws that regulate the manufacture, sale, and use of toxic substances and the disposal of such substances in the air, water, and soil. Those involved in public regulation and enforcement, however, have not been able to keep up with the ever-growing list of toxic substances capable of causing personal injuries. Complex toxic tort litigation is thus on the rise despite the government’s attempt to prevent toxic torts.

Toxic Substances

Toxic substances include any substances that could cause injury to a person’s bodily integrity. Generally, harmful biological and chemical substances such as hazardous wastes and asbestos have been considered to be toxic substances, but radiological and other injurious substances as well as natural products such as tobacco may also be considered toxic.

New products and substances are constantly entering the global marketplace, many times with little regulation, and some substances may not be deemed toxic and personally injurious for years after they are introduced. Such findings are usually made after lengthy scientific investigation, study, and analysis. When a finding of toxicity is made about a particular product, the US government usually steps in and removes the product from the marketplace or requires that manufacturers provide specific warnings concerning its toxicity and its proper use. By that time, however, it may already be too late for many people who have been exposed to the product, as many incurable diseases linked to toxic substances can take long periods to appear.

Proof

The most difficult element of proof in toxic tort litigation is causation. Forensic experts conduct research and provide expert to show that exposure to certain toxic substances causes specific personal injuries. Initially, much of the reasoning in toxic tort lawsuits is based on deductive guesswork about what appears to be the most obvious cause of a particular harm—the existence of a toxic substance. However, the legal system does not allow scientific guesses as evidence, so forensic scientists must satisfy the by showing that their opinions concerning causation are reliable.

When a substance is implicated in a toxic tort lawsuit for the first time, a pioneering scientist must attempt to show that the substance caused the personal injury or will cause additional harm in the future. Forensic scientists are usually able to identify toxic substances such as asbestos and tobacco that might be linked to human harm such as cancer. Making a scientifically reliable connection between a toxic substance and a personal injury, however, is very difficult, particularly when other factors may be at play. Moreover, because of ethical considerations, human subjects are rarely involved in scientific studies concerning the effects of toxic substances. Instead, animal studies are often used, and the results of such studies are not as reliable.

Bibliography

Bieber, Christy. "What Is a Toxic Tort?" Forbes, 5 Apr. 2023, www.forbes.com/advisor/legal/personal-injury/toxic-tort/. Accessed 18 Aug. 2024.

Chiodo, Ernest P. Toxic Tort: Medical and Legal Elements. Philadelphia: Xlibris, 2007.

Cranor, Carl F. Toxic Torts: Science, Law, and the Possibility of Justice. New York: Cambridge University Press, 2006.

Eggen, Jean MacChiaroli. Toxic Torts in a Nutshell. 3d ed. St. Paul, Minn.: West, 2005.

Madden, M. Stuart, ed. Exploring Tort Law. New York: Cambridge University Press, 2005.

Madden, M. Stuart, and Gerald W. Boston. Law of Environmental and Toxic Torts: Cases, Materials, and Problems. 3d ed. St. Paul, Minn.: Thomson/West, 2005.

Rudlin, D. Alan, ed. Toxic Tort Litigation. Chicago: American Bar Association, 2007.

"Toxic Tort." Cornell Law School, www.law.cornell.edu/wex/toxic‗tort. Accessed 18 Aug. 2024.