"Toxic tort" is a term of art used to describe an ever-increasing area of the law covering topics as diverse as asbestos, lead poisoning, prescription medications, medical devises, tobacco, exposure to contaminated groundwater and toxic mold. While state governments and the federal government push for tort reform in an attempt to limit the explosion of toxic tort litigation in the court systems and the large damage awards that come with them, toxic tort cases continue to expand into new areas.

If you or a loved one has been exposed to a toxic substance, contact an attorney in your area for more information on the available legal remedies for your case. An experienced toxic tort lawyer can evaluate your claim and discuss the best options for recovery for your injuries.

What is a Toxic Tort?

Toxic tort litigation began in the 1970s with the asbestos litigation and grew to include Agent Orange, tobacco and Legionnaire's Disease claims. Some of the defining characteristics of a toxic tort include:

• Injury caused by exposure to a harmful substance
• The nature of the exposure places a large number of people at risk of suffering comparable injuries
• The full consequences of the exposure to the harmful substance may not be immediately known, and may take years to come to full fruition
• The cause of the exposure is not easily determined and multiple defendants may share responsibility for the acts causing the injury

Toxic tort cases cover a broad range of topics. Some of the more common toxic tort claims include:

• Medical devises (i.e. breast implants, hip replacements)
• Drugs (i.e. Vioxx, Accutane)
• Asbestos
• Lead-based paints
• Industrial solvents
• Catastrophic events (i.e. chemical explosion)
• Pesticides
• Tobacco
• Toxic mold
• Effects of living close to a hazardous or toxic waste site
• Injuries from use and exposure to electromagnetic radiation (i.e. cell phone)

Who May be Responsible for My Toxic Tort Injury?

Since toxic torts cover such a broad range of issues, the number of parties that could be named as defendants is dependant on the type of injury claimed and the specific facts of each case. For example, in a toxic mold case, the building owner, landlord and manager could be named in the lawsuit as well as the people responsible for constructing the building, such as the contractor, sub-contractors, architects and designers. Since toxic tort cases are fact intensive, it is important to speak with an attorney in your area to determine who may be responsible for your injuries.

Proving a Toxic Tort Case

In general, in order to win a toxic tort case, the plaintiff must be able to prove by a preponderance of the evidence (stronger evidence than presented by the defendant) that:

• The plaintiff was exposed to a toxic substance
• The defendant is responsible for the plaintiff's exposure to that toxic substance
• The plaintiff is currently suffering or has suffered injury from the exposure
• Exposure to the toxic substance is the proximate cause for the plaintiff's injury

Proving causation - that the defendant caused the plaintiff's injury - is the most difficult element to prove in toxic tort cases. The nature of toxic tort cases makes it challenging to prove that a particular defendant caused a particular plaintiff's injury. In most cases, a toxic substance potentially can be connected to several parties and it may be impossible to specifically pinpoint one party. Thus, the majority of courts use a substantial factor test to determine whether the defendant's conduct was a "substantial" contributing factor to the plaintiff's injuries.

Theories of Liability

The most common theories of liability asserted in toxic tort cases include negligence, strict products liability and breach of express and implied warranties. However, in many toxic tort cases, it is impossible to identify who is responsible for the injury. As a result, other theories of liability have been asserted, including:

• Alternate liability - when the actual defendant responsible for the injury cannot be identified, but there is a group of potential responsible parties named as defendants.
• Industry-wide liability - the plaintiff names an entire industry and not an individual company as the defendant because the entire industry has participated in activities leading to the injury. This type of liability has been asserted in tobacco cases.
• Market share liability - when a particular manufacturer cannot be identified as the party responsible for the injury, manufacturers who make up a "substantial share" of the market in a particular geographic region can be named as defendants.
• Concert of action and/or conspiracy - when the plaintiff claims that a particular group of defendants worked together in the harmful activity causing the plaintiff's injuries.
• Successor liability - many times the company that caused the injury may have gone out of business or been absorbed by another company, leaving the plaintiff with no one to name as a defendant. Under this theory of liability, there are limited circumstances when a successor company may be held liable for the former company's acts.

When you meet with a lawyer to discuss your case, he or she can explain which types of liability are the most appropriate for your case.

Available Damages

The damages available in a toxic tort case will vary depending on the circumstances of your claim and applicable laws. Some of the general types of damages that may be available include:

• Medical costs, past and future
• Lost wages and loss of future earning capacity
• Pain and suffering
• Property damages
• Removal and abatement costs
• Emotional distress
• Fear of cancer
• Increased risk of cancer
• Costs for medical monitoring

Some of these damages, like for fear of cancer, are new types of damages and may not be available in your case. You should consult an attorney for more specific information on the types of damages that you may be awarded.

Conclusion

Toxic tort cases can be complex, expensive and time-consuming. But for those who have suffered injuries from exposure to a toxic substance, their claims are important and deserve to be heard. Contact an attorney today to learn more about toxic tort cases. An attorney experienced in handling these types of cases can review your claim and help you determine the best course of action to take in accordance with your state's laws.

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