Dangerous Materials

Toxic Torts

A toxic tort the legal term for the harm that results from wrongful exposure of a harmful chemical or biological substance through ingestion, inhalation, skin contact, or skin absorption. Examples of toxic tort litigation include but are not limited to cases concerning, lead- paint (causes brain damage, especially in children) asbestos (causes lung cancer, restrictive lung disease), pesticides (causes birth injuries), toxic molds (causes various symptoms), and electro-magnetic fields from utility wires or major appliances (suspected to cause cancer), and toxic landfill/spill waste (causes leukemia, and other syndromes).

Toxic substances are regulated under the Toxic Substances Control Act (TSCA). The TSCA was enacted in 1976 to give EPA the ability to track the 75,000 industrial chemicals currently produced or imported into the United States. The EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human-health hazard. EPA can ban the manufacture and import of those chemicals that pose an unreasonable risk. Despite government efforts to protect your health, millions of people at home, at work, and during their leisure time are being exposed to and injured by toxic substances every day.

Due to the nature of toxic substance accidents and long latency periods, many cases are often not brought until many years after victims discover they were exposed to the toxins. Exposure to toxic substances is particularly harmful for industrial workers who may have been exposed to high levels of toxins over a long period of time. Exposure to toxic substances is also particularly harmful to children who are generally more sensitive to toxic agents and who have a greater likelihood of exposure as a result of play habits and behavior patterns. It is rare for toxic exposure to affect just one person, especially in cases of environmental contamination. It is very common for groups of people who have all been exposed to the same toxin because of the same event (for instance, an accidental release of radiation from a nuclear power plant) or because of the same occupation (for instance, repeated exposure to dry cleaning fluid by people in the cleaning industry) to bring legal claims as a group in order to seek redress for wrongful toxic exposure. As a result, toxic tort cases are often brought as class actions.

There are many different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability that are used to establish liability. Proving that a toxic substance has injured a person, however, requires hard work and experience. Click on Proving a Toxic Tort Case to learn more.

Proving a Toxic Case

Toxic tort cases are usually quite difficult to prove, because the connection between exposure to a toxic chemical and a resulting injury or disease is often hard to pin down. For example, some cancers may first develop 25 years or more after exposure to a cancer-causing chemical. Key facts that determine the success of toxic tort actions lay hidden right before your eyes in technical reports, analytical data, air modeling inputs and outputs, boring logs, ecological studies, mechanical integrity records, engineering specifications or technical drawings. In order to interpret the affect of a chemical in the body correctly, toxic tort cases often require consultation with several doctors with specialties in the diagnosis and treatment of persons injured by toxins, toxicologists, and certified industrial hygienists. Once it is determined that a given chemical is in fact the cause of the victim's injury or death, the services of an expert in pharmacokinetics may be required.

Pharmacokinetics studies the way we absorb, distribute, metabolize and eliminate a chemical. While the field of toxicology measures the effect of a chemical on an animal, pharmacokinetics attempts to measure the effect of the animal on the chemical. Pharmacokinetic studies also determine how much chemical is in the body when an animal is exposed repeatedly or continuously to a chemical, similar to a workplace exposure. Finally, and perhaps most importantly, pharmacokinetic data on the rate of elimination in humans, coupled with accurate analytical measurements and knowledge of the time of exposure, allows the calculation of the dose actually received by an exposed victim. An important part of a successful toxic tort case must measure the difference between exposure and dose. Exposure is the amount of chemical the body contacts externally. Dose is the amount of chemical that actually penetrates into the body, and the effective dose ultimately determines toxicity.

A plaintiff who proves that he or she was exposed to a toxic substance because of the negligence or carelessness of another is entitled to be compensated with money for all of the consequences of that exposure, including: 

  • the cost of past and future medical care
  • the cost of necessary rehabilitation
  • loss of past and future wages
  • loss of earning capacity and related fringe benefits
  • loss of enjoyment of life
  • pain and suffering associated with the toxic exposure
  • embarrassment, humiliation, and inconvenience