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Toxic Exposure

A tort is an injury to a person's bodily integrity, financial situation, or other interest caused by another person's negligence or carelessness. A person who has been injured is entitled to be put into the position he or she was in before the tort, whether through economic compensation, medical care, or other means. This is the fundamental principle of American tort law.

A toxic tort is a tort caused by contact with a toxic substance. Because of the "advances" of corporate industry in our nation over the past fifty years, the number of dangerous, toxic substances in our environment has grown immeasurably. Some of the toxic substances that have been shown to cause significant injury to people are lead-based paint (brain damage, especially in children) asbestos (lung cancer, restrictive lung disease) dry cleaning and other solvents (brain damage, major organ damage) pesticides such as dioxin and DDT (birth injuries) electro-magnetic fields from utility wires or major appliances (suspected cancer) toxic landfill waste (leukemia, other syndromes) various drugs and pharmaceuticals such as DES and tainted L-tryptophan common industrial chemicals such as benzene and PCBs heavy metals and other chemicals such as mercury and arsenic

Because of factors such as corporate greed, lack of adequate governmental regulation of the use and disposal of toxic substances, and corporate America's unwillingness or inability to invest in systems to minimize our exposure to toxic substances, people at home, at work, and during their leisure time are being exposed to and injured by toxic substances every day. Sometimes an injury from a toxic substance does not show up for years after the exposure.

Proving that a person has been injured by a toxic substance is very hard work. Attorneys competent in the handling of toxic tort cases will consult with several doctors with specialties in the diagnosis and treatment of persons injured by toxins, toxicologists, and certified industrial hygienists. The responsible parties in toxic exposure cases (corporations, manufacturers of toxic substances, and users of toxic substances) defend these cases with an almost fanatical zeal, and have been known to hide or destroy documents that will prove that the corporation knew of the harm that could be caused to humans from the particular substance. Other common defenses are that the injured person isn't really injured, or if they are damaged it was from something other than the toxic substance, or if it was from the toxic substance, it was from some other corporation's toxic substance. Another common defense is that the injured person is a hypochondriac, hysterical, or just plain crazy.

Although toxic tort cases can be difficult to prove, a plaintiff complaining of the adverse effects of toxic exposure - like any plaintiff in a non-criminal case - is obligated to prove that his or her claims are merely more likely true than not. This is a much lower burden of proof than is required in a criminal case, where the prosecution must prove its case "beyond a reasonable doubt". A plaintiff complaining of toxic exposure is not obligated to prove his or her case "beyond a reasonable doubt". One easy way to think about the burden of proof in a toxic exposure case or any other civil case is to imagine an old-fashioned scale with two sides, with the plaintiff's evidence piled on one side and the defendant's evidence piled on the other side. Whichever side's evidence is weightier wins in a toxic exposure case.

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. The law provides for easy and convenient ways for groups of similarly injured people to bind together and bring their claims as a group, called a legal "class", in the form of a class action. Many class actions have been initiated in the recent past, such as the Three Mile Island class action, brought on behalf of all persons exposed to excessive radiation following the release of radioactive materials at a nuclear power plant near Harrisburg, Pennsylvania. There can be real strength in numbers.

Many effects of toxic exposure are permanent and irreversible. Thus, although the law seeks to force the wrongdoer to put the victim in the position he or she was in before the wrong was committed, this is not usually possible. Instead, economic compensation thought to be equivalent to the victim's damage is awarded. 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

A competent attorney will consult with experts in the field of medicine, rehabilitation, economics, and psychology/psychiatry to help determine the needs and reduced abilities of the victim and to help translate these sometimes-subjective elements of damage into economic terms that a court and a jury can understand.

In order to minimize exposure to toxic substances, people can take the following precautions:

when choosing a place to live, stay away from chemical plants, refineries, manufacturing plants, rail yards, landfills, and bodies of water downstream from such places. Stay away from large electrical towers and transformers. Make sure you choose a house free from lead-based paint and asbestos insulation. Consult with a competent building inspector before purchasing a home and ask about industries that are or were previously located in the neighborhood, at work, ask for MSD (Material Safety Data) sheets pertaining to all of the chemicals you come into contact with. Read them carefully and consult with your doctor concerning the risks of working with the chemicals.

If you suspect that you or your family has been or is being exposed to toxic substances, you should contact your family physician first. Then contact the Department of Public Health in your state or county, the nearest branch of the United States Environmental Protection Agency (EPA), the United States Occupational Health and Safety Administration (OSHA), or your state Department of Environmental Resources (DER) to report your suspicions and to obtain information. If you believe you or someone close to you has suffered injury due to exposure to toxic substances, and you want to initiate a legal investigation, you need competent and experienced representation. Silverman & Fodera stands willing to guide you.

Relevant Links

This informational piece was prepared by Silverman & Fodera. If you would like more information on this topic, call us at (800) 220-LAW1, or use the "Do I Have A Case?" link on this web site.