Answers To The Most Frequently Asked Questions In Toxic Exposure Cases
1. What type of toxic situations give rise to toxic exposure cases?
Toxic conditions that give rise to legal cases can be chemical, physical, mechanical or biological in nature.
Most toxic cases involve a chemical agent that causes human beings significant injury when they are somehow exposed to the toxin.
Exposure to the toxic agent can be direct contact between the person and the toxin; through toxins released into the groundwater, drinking water or air; toxins released by refineries and power plants, particularly during out of control fires; and toxins in vitamins, drugs and other substances which are ingested.
Some common examples of toxic tort case include: toxic refinery explosions, toxic waste dumping and spills, manufacturing operations involving toxins, and toxic contamination of the ground.
2. Who can sue for toxic exposure?
Any person injured as a result of a toxic exposure, no matter how long or how short the exposure, how direct or indirect the exposure, can sue if they are able to establish that some person, company or entity is at fault under California law for the exposure and plaintiff can establish actual damages from the exposure.
Frequently, because toxic exposure cases are difficult to prove, it helps if large group of plaintiffs can band together to bring the case.
If someone dies due to a toxic exposure, close family members can bring a lawsuit.
Any person, whether an adult or a minor, is entitled to bring a toxic tort claim.
3. If I have been the victim of toxic exposure, who can I sue for my damages and damages to my family?
There are any number of potential defendants who can be held liable in toxic exposure cases depending upon the type of toxin and the type of exposure. Basically, you can sue anybody who wrongfully caused your toxic exposure which, depending upon the case, can include chemical manufacturers; owners of land, homes and apartments; owners of a refinery; and any person or entity that wrongfully sends toxins into the earth, ground or water which you are exposed to.
4. I’ve heard that toxic exposure cases do not fit neatly into any one legal theory of recovery. Is this true?
Yes. Toxic exposure cases, or toxic “tort” cases as they are more commonly called by attorneys, do not fit neatly into any one legal category. This is largely because toxic torts are a relatively new area of the law which has developed as we as a society have recognized that many of the chemicals used in industry to make our country grow can also create terrible risks to people who are exposed to these chemicals.
Some of the legal theories that are pled in toxic tort cases include product liability, premises liability, negligence, fraud, nuisance and ultra-hazardous activity.
5. Have the state and federal governments passed laws which we can rely on to bring cases for injuries and death from toxic exposure?
Yes. Although they do not apply to every case, there are at least three statutes that are used in toxic exposure cases to help establish liability. They are the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), the California Hazardous Substance Accountability Act and the Resource Conservation Recovery Act (RCRA).
6. Won’t it be difficult to prove that a particular toxin caused my injury?
Yes, it can be difficult prove causation in toxic exposure cases, particularly if you have developed a subtle injury or a slow developing disease due to low dose exposure from imperceptible substances.
To win the case you need to prove that the wrongful toxic exposure was a substantial factor in causing your injury or damage.
Your case will be aided if you can prove there was enough exposure to an identified harmful substance to activate your disease and that a demonstrable relationship between the substance and the biological disease exists in science.
7. I’ve heard that expert testimony is critical in toxic exposure cases, is this true?
Absolutely. It is almost inconceivable that you could prevail in a toxic exposure case without an expert. First of all, expert testimony will be necessary to establish that the toxin was wrongfully released into the environment. Then, an expert will be necessary to establish a causal relationship between the toxin and your injury and, finally, expert testimony will be required to establish the extent of your injury and damages.
A number of experts can testify in toxic tort cases including toxicologists, epidemiologists, statisticians and occupational health experts.
8. What are some of the common illness arising out of exposure to toxins?
Toxins can affect every portion of our bodies and bodily functioning. Frequently toxins cause respiratory distress, skin disease, stomach problems, neurological deficits, injury to the immune system and cancer.
9. What damages can I recover in my toxic exposure case?
Under California law a seriously injured plaintiff is entitled to recover all of his or her past and future medical expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages the exemplary damages which are awarded to punish the defendant.
If a family member dies due to toxic exposure, the survivors can also recover for economic losses and emotional distress damages for the loss of society, comfort and care.
10. How soon must I bring my toxic tort case?
There is no simple answer to this question. The statute of limitations in toxic tort cases is extraordinarily complex because in many toxic tort cases, there will be a long exposure to a toxic substance, a long period in which your disease or injury slowly developed to the point of being perceptible and a not infrequent time gap between the time you began suffering from your injury and the time that your realized that it may have been caused by a toxin.
Other than cases involving asbestosis and a few other statutory causes of action, there are few special statutes of limitations or laws applying to toxic tort cases. That means that generally speaking, you must bring your lawsuit against any known defendant within two years of the accrual of your cause of action or you must bring a claim within six months of the accrual of your cause of action if the defendant is a public entity.
Children are an exception in that they essentially have one year to bring a government tort claim and they have until their 19th birthday to bring a case against any non-government defendant.
The key to the statute of limitations in toxic tort cases is understanding what is meant by “accrual” of a cause of action. Under California law, a cause of action does not accrue until all of the elements of that cause of action have been met. That means a statute of limitations will not start running until a reasonable person was put on notice that they may have been injured by a toxic exposure. Once that connection is made, the plaintiff must bring a public entity claim within either six months or a lawsuit within one year.
Even this standard is not so simple to follow because you may be aware of a very minor injury, such as a skin rash, which would not necessarily cause you to suspect a toxic exposure or cause you to want to take any legal action. Further, you may know that you live in an area where there is a potential for toxic exposure but not realize that your injury or disease is imperceptibly building up in your body.
There are many cases that interpret the statute of limitations in toxic exposure situations and, generally speaking, they have been favorable to plaintiffs. However, if you do suspect you have been injured by a toxic exposure, you should seek a consultation with an attorney as soon as possible rather than potentially losing your right to sue.
11. Will my toxic exposure case settle out of court?
Probably; however, toxic tort cases are some of the most frequently tried cases in California. If you are the victim of a clear toxic event, such as a refinery explosion, in which there are hundreds or thousands of other plaintiffs banned together, then your case will probably settle. If your case involves a more subtle toxic exposure with a number of people who are similarly situated to you not suffering from any disease or injury, your case may be more likely to go to trial. There is definitely strength in numbers in toxic exposure cases.
12. Do I need to retain an attorney in a toxic exposure case?
Yes. Absolutely. If there is already a class action underway, you may want to become part of the class and retain the attorney representing the class. Otherwise, you will have to seek a private consultation and hopefully be able to find an attorney who is willing to take on your case. Toxic exposure cases are far too complicated for a layperson to take on alone.
Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.