Toxic Torts Deskbook

M. Stuart Madden

• Publisher: CRC Press
• Year: 2018
• ISBN:
  9781351094252
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto ambientale

Toxic Torts Deskbook is a concise, readable text covering the fastest-growing area of tort and personal injury litigation.Toxic tort suits involve claims arising from exposure to products ranging from pesticides to industrial solvents, manufacturing waste, and asbestos and present unique questions regarding causation, degree of hazard, and expert testimony.Written for environmental professionals as well as attorneys, Toxic Torts Deskbook describes the principal causes of suits for negligence, nuisance, trespass, warranty, strict tort liability, and liability for abnormally dangerous activities. For environmental, product, and workplace injuries from toxic exposure, the book discusses the elements a claimant must plead and prove, as well as defenses, statutes of limitations for long latency harms, and limited immunity for government contractors. "Citizen suits" that individuals may bring to vindicate rights granted by state or federal environmental statutes and insurance coverage issues, including the metes and bounds of the "pollution exclusion", are also covered.

CHAPTER 1

Introduction

CONTENTS

1.1 Generally

1.2 Special Characteristics

1.2.1 Generally

1.2.2 Long Latency

1.2.3 Proof of Causation

1.3 Role of Expert Scientific or Medical Testimony

1.4 Relationship to Environmental Law

Introduction

1.1 GENERALLY

Toxic torts comprise harms to persons,¹ to property,² or to the environment³ due to the toxicity of a product, a substance, or a process. In many circumstances, the toxic harm is latent for a period of time and is not discernible for years, or even decades. As a modem legal term, “tort”, derived from the Latin term for “twisted”, is a civil, noncontractual wrong for which an injured person may seek a “remedy” in the form of money damages. A tort is a civil wrong in the sense that the injured party’s remedy is a civil suit for compensatory damages, as distinct from a suit brought by the government for civil or criminal money penalties.

Tort law, therefore, is the body of related doctrines imposing civil liability, in money damages, upon persons or businesses whose substandard conduct causes personal physical or emotional injury to others or damage to their property. An older definition of tort law as comprising liability for civil, noncontractual, nonstatutory harm is, today, somewhat misleading. For example, the remedy for breach of the implied warranty of merchantability, providing money damages for toxic harm, is, by its terms, contractual, but it is also quite tort-like in the proof required and the damages available to the successful litigant.

In addition, modem tort law is substantially interwoven with provisions of state and federal statutes pertaining to such subjects as burdens of proof, comparative fault, and statutes of limitation, to name only three. By way of illustration: (1) a business’s failure to comply with a standard of care established by a labeling regulation might, under state law, be deemed negligence per se (presumptively negligent); (2) a state or federal environmental statute may vest in individual citizens the right to pursue private cost recovery law-suits, called “citizen suits”, against a polluter; or (3) a state products liability statute may provide criteria for evaluation of issues ranging from the hazards posed by a product or substance to the varying burden of proof plaintiff must sustain against different participants in the chain of manufacture, marketing, and distribution.

Even with the contemporary influence of statutes and warranty law, the goals of tort law remain these: (1) assignment of responsibility, in money damages, to those responsible for creating a risk that produces harm; (2) compensation of persons for loss caused by another’s substandard conduct; (3) deterrence of further unreasonably hazardous conduct by the responsible party and others engaged in similar pursuits; and (4) encouragement of innovation, such as changes in design, formulation, packaging, labeling, transportation, disposal or the like, that will reduce or eliminate unreasonable hazards.

In a toxic tort suit, plaintiff sues the responsible party for compensatory damages, i.e., a monetary award calculated to remedy harm the defendant has caused, to the imperfect extent financial relief can. By “compensatory damages” is meant money damages to compensate the injured party for the loss or harm suffered. Where the toxic harm is to property, or to an ongoing business, “compensatory damages” can be assessed on the basis of diminution in value to a property, or “downtime”, economic loss, or cleanup costs to a business. In these instances, compensatory damages may come close to placing the injured party in the economic position they would have enjoyed had they not suffered injury or loss due to defendant’s conduct.

Where, on the other hand, the harm suffered by defendant’s wrongdoing is personal physical injury, disease, or death, these physical and emotional harms cannot be truly “compensated” for, as no amount of money damages can remedy such a loss. Nonetheless, a judge’s or a jury’s finding of defendant’s liability for civil money damages in a toxic tort claim provides the best recompense available through the U.S. legal system.

There are, of course, variations upon these general observations. Plaintiff may bring a noncompensatory, but remedial, “citizen suit” claim to force compliance with state or federal environmental statutes. In addition, where defendant’s injurious conduct is continuing in nature, a court may enjoin (prohibit) further similar conduct. A defendant failing to comply with the requirements of such an injunction may be subject to civil or criminal fines.

Another and significant variation is that, in addition to compensatory damages, punitive damages may be awarded upon plaintiff’s showing that defendant’s conduct was of such a reprehensible nature as to warrant financial punishment in addition to the burden of compensating plaintiff for the injury sustained.⁴ In instances where defendant’s conduct is of a particularly culpable nature, such as where the evidence shows that he or she acted with knowledge of the likelihood that toxic harm would result, or with reckless indifference to the risks posed to others, plaintiff may also be awarded punitive damages. Punitive damages are not intended to compensate plaintiff for the harm suffered. Rather, the goal of punitive damages is to punish a particularly blameworthy defendant and to serve to deter that defendant, and others, from engaging in future similar hazardous conduct.

An injury may be personal, physical injury to a worker, a patient, or a passerby. It may be damage to property, its breadth ranging from rendering an individual premises uninhabitable to the contamination of a large watershed.⁵ A person’s physical injury may range from nausea⁶ to neurological damage or death. Some toxic tort claims for personal physical injury involve physical injury not directly related to the toxic qualities of a substance but rather caused by an individual’s abreaction⁷ or allergic reaction thereto.

The toxic tort harm may arise from a worker’s exposure to hazardous chemicals in the workplace⁸ or her inhalation of respirable carcinogens. Contamination of groundwater by waste disposal,⁹ by inadequately treated industrial effluent, or by administration of residential or agricultural pesticides, may also create toxic tort liability.

Various health procedures may give rise to toxic tort claims. Such recent claims range from harmful radiological exposure to X-rays¹⁰ to employment of dental surgery products containing paraformaldehyde that plaintiff claimed had leached into his blood system.¹¹ Health care products liability, most frequently associated with pharmaceuticals, is usually considered a matter of products liability and not toxic torts. Even so, court decisions in pharamaceutical products liability cases often have a bearing on the law of toxic torts. For example, suits against drug manufacturers usually require a judge to evaluate expert testimony and the qualifications of the experts giving that testimony. Questions often arise concerning the relationship between the expert’s training and professional experience and the basis for the expert’s conclusions as to the cause of the claimed injury.

Another example of the relationship between toxic torts and pharmaceutical products liability is the developing law permitting, or denying, judgment for plaintiffs claiming long latency injury where plaintiff is unable to identify a particular manufacturer’s product, substance, or pharmaceutical as having caused the injury. Some courts have permitted recovery of damages for such injury on a theory of “market-share” liability, or related logic. In both settings, court decisions involving pharmaceutical products liability can guide professionals, counsel, and judges considering toxic tort questions. To this extent, the text will discuss drug products liability suits bearing on these and similar subjects.

Property damage due to toxic exposure may, in turn, be temporary and remediable or permanent. An example of the former would be some forms of groundwater contamination; an example of the latter might be a public building constructed with building products containing respirable asbestos, where the cost of safely removing the asbestos would be greater than the value of the building itself. Plaintiffs in a toxic tort claim may be private persons, suing individually or as a “class” of individuals suffering the same type of harm. Plaintiff may also be a business or corporation, or even a government entity, such as a city, town, or county, bringing suit for pollution or contamination of public property.

1.2 SPECIAL CHARACTERISTICS

1.2.1 Generally

A toxic tort claimant frequently phrases a complaint in terms of multiple theories of recovery.¹² In the wellwater contamination suit of Merry v. Westinghouse Electric Co.,¹³ for example, plaintiffs brought suit under theories of negligence, strict liability for abnormally dangerous activities, trespass, and nuisance. Irrespective of the theory or theories of plaintiff’s toxic tort claim, conventional tort rules of duty and compensable damages pervade the law of toxic torts, as do the newer products liability doctrines of causation and identification of unreasonable risk. For example, even in a modem personal injury action claiming a manufacturer of asbestos products failed to warn adequately, a court will readily turn to the common law negligence standard to find the applicable duty.¹⁴

1.2.2 Long Latency

Nonstatutory civil claims arising from toxic harms, or toxic torts, often involve personal physical injury or property that remains undiscovered for years after the injurious exposure. A shipyard worker’s injurious exposure to respirable asbestos fibers may result in asbestos-related disease only years later. An electroplating plant’s contamination of its property, surrounding property, or subterranean aquifers may only be discovered when, years after the injurious activities, a successor owner of the property wishes to sell it. The Viet Nam veteran or the agricultural worker exposed to dangerous levels of a chemical herbicide may only be diagnosed with neurological disease or other illness many years thereafter.

Because toxic tort claims almost always involve injury or damage that has a long latency period before the harm manifests itself, these qualities of toxic torts distinguish them from many other common law claims such as ones in negligence, nuisance, or products liability. Also, and frequently because of the long latency between exposure to the toxin and claimant’s ability to recognize the harm, toxic torts practically always involve complex questions of medical or environmental causation. As a consequence, toxic tort litigation will always require the engagement of experts in medicine or other science to help the attorney, and the fact finder, appreciate the presence or absence of a causal relationship between the toxin and the harm.

1.2.3 Proof of Causation

In claims for toxic harm, plaintiff must demonstrate that defendant’s product or activity was a direct cause of the resulting personal injury or damage to property. Whether the suit is brought in negligence, strict products liability, or warranty, defendant’s actions must be shown to be the “proximate cause” of the harm. By “proximate cause” is meant the challenged act was (1) a substantial contributing factor in bringing about the injury and (2) the relationship between defendant’s act and the injury or damage is not so remote or attenuated as to suggest that the harm was not foreseeable, i.e., that it would be neither fair nor reasonable to hold defendant responsible.

Conventional tort and toxic tort claims alike often raise complex issues of proximate cause. In a typical complex products liability suit not involving a toxic product, such as a “second collision” automobile design claim, plaintiff would assert that the vehicle posed an unreasonable risk of injury to its occupant during a collision. Plaintiff’s quite difficult burden in such a suit is to prove that the design and construction of the vehicle was such that it exascerbated the injuries plaintiff would have suffered from the same collision in an automobile of a different construction.

Because years often pass from the injurious exposu...