Toxic Tort Defenses

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 What’s a Toxic Tort?

A toxic tort is a personal injury claim wherein the plaintiff is hurt by exposure to toxic or hazardous materials. Toxic exposure claims can often take long periods to develop, as the symptoms of exposure may not emerge until many months or years later.

Also, many individuals can be exposed to toxic chemicals at once, as in when a building is contaminated by toxic mold. Therefore, it’s common for a toxic tort claim to be filed as a class-action lawsuit, resulting in hefty payouts to the injured individuals.

Toxic Exposure Awards

There is no rigid guideline on estimating damages for toxic exposure to dangerous chemicals and products.

The judge and jury can award damages based on several factors:

  • The severity of injury: minor breathing problems or severe trauma
  • Hospital bills: medical monitoring, therapy
  • Knowledge of the offending party of the presence of toxic materials

Examples of Past Toxic Exposure Awards

While the awards listed below might not be relevant to your actual case, they are examples of what has been awarded.

Your case might differ in severity of the injury, the intention of the parties, and toxic material, causing a disparity from those cases listed below:

  • An asbestos case where the employer developed mesothelioma over 35 years of exposure and was expected to die within a month. His verdict was awarded $271,000.
  • An asbestos case where an oil worker was awarded $1.6 million under the legal theory of negligence and defective products
  • In a case where the employer had knowledge of the risks of asbestos and failed to warn its employees, a worker was awarded $34 million.
  • Groundwater contamination from an oil refinery awarded $7 million to those injured in Texas.
  • A gas company buried 260,000 tons of cyanide-laced debris at a landfill, and the injured party was awarded $104 million for various related injuries.
  • A spilled drain cleaner that caused severe burns on the legs and abdomen of a small child resulted in a $750,000 judgment for the injured.

What Is Toxic Mold?

Mold is an organism that grows in places where there is excessive moisture. This can occur when a home or building experiences a water leak such as a pipe leak, a flood, a roof leak, or any other way water can enter. Mold can cause property damage.

Mold removal, also called mold remediation, can be expensive and time-consuming but necessary for the health and protection of those who use the building. Mold can be toxic to the human body and cause significant health issues such as nausea, rashes, or asthma.

Mold often affects workplaces, schools, or homes. Common places for mold to develop in a building are:

  • In an air conditioning unit;
  • In a basement that has flooded;
  • Under a refrigerator;
  • Under a bathroom or kitchen sink;
  • Around windows that leak;
  • On a shower curtain;
  • In a humidifier;
  • Beneath a damp carpet;
  • In a site with plumbing issues; or
  • On a ceiling or roof, particularly if a leak is present.

Mold issues can also appear in locations that have experienced water damage. Often, mold remediation will be covered in a homeowners insurance policy under water damage.

Toxic mold is somewhat of a misnomer. While some kinds of mold can produce toxins, the mold itself is not toxic. Two types of mold, Stachybotrys chartarum and toxigenic Aspergillus, may cause negative reactions in people. These are the types of molds lawyers and mold remediation businesses often refer to as toxic mold. Negative reactions to these molds can lead to life-threatening issues.

Stachybotrys chartarum is what most people are referring to when they say “black mold.” It has a dark green or black appearance. The mold produces spores released into the air as it forages on organic material in the building or homes, such as drywall or carpet.

Symptoms associated with an adverse reaction can be:

  • Chronic coughing and sneezing;
  • Eye irritation;
  • Irritation to the mucous membranes of the nose and throat;
  • Chronic fatigue; or
  • Constant headaches.

How Do You Know If Mold is Making You Sick?

Every individual will be affected differently by the presence of mold. Other symptoms, particularly in cases of air conditioning mold, may include:

  • Sinus issues;
  • Breathing difficulties;
  • Bronchitis and asthma attacks;
  • Legionnaires disease, a flu-like illness caused by bacteria that breeds in moldy areas; or
  • Vasomotor rhinitis, or a sinus condition with symptoms similar to allergies.

Should an individual experience any symptoms related to mold exposure, they should seek medical care immediately. Further, they should save any documentation or diagnoses related to the mold exposure if a lawsuit is required.

Federal, State, and Local Toxic Mold Laws

At this time, there are no federal mold regulations that deliver standards for residential buildings. Yet, federal agencies such as the Environmental Protection Agency (EPA), the United States Department of Labor (DOL), and the Occupational Safety and Health Administration (OSHA) deliver standards and guidelines for schools, commercial buildings, and the workplace.

What Are Some Common Toxic Tort Defenses?

Because there is a potential for significant losses due to a class action claim, most defendants in a toxic tort case will try to argue one or more defenses. These usually take the form of “affirmative defenses”- that is, even if the plaintiff can demonstrate that the defendant was responsible, the defense will alleviate the defendant of liability.

Examples of affirmative defenses in a toxic tort lawsuit are:

  • Assumption of Risk: This is where the plaintiff was warned of the dangers but ignored the warnings and exposed themselves to the toxic materials anyway. This defense is commonly raised since toxic materials are often accompanied by some “Warning” or “Hazard” sign.
  • Contributory/Comparative Negligence: If the plaintiff was negligent in a way that added to their injury, it could serve as a defense. In some states, the plaintiff may be restricted from filing suit, or their damages award will be reduced. This defense is not available in all jurisdictions.
  • Statute of Limitations: The plaintiff usually has a narrow time to file a lawsuit after discovering their injuries. When this time limit has expired, it is called “tolling the statute of limitations,” and the plaintiff can’t file their case anymore. This is important in a toxic torts claim because the effects of toxic exposure may not be uncovered until much later.
  • Statute of Repose: This is comparable to the statute of limitations, except that the plaintiff is given an absolute time limit to file their claim, regardless of when they uncover their injury. Most jurisdictions enforce statutes of limitation rather than statutes of repose.
  • Conflict of Laws: It may be a defense if the state, county, or city laws governing toxic torts directly conflict with federal laws.

Finally, a common way for a defendant to evade liability is to demonstrate that the injured party hasn’t established all the elements for the toxic tort offense. For instance, the plaintiff must prove that the defendant caused their injuries. While this is not technically an affirmative defense, a failure to establish causation can relieve the defendant of liability.

Do I Need a Lawyer for Help With Toxic Tort Defenses?

If you are involved in a toxic tort lawsuit, you may need the help of a skilled tort lawyer. Your lawyer can advise you on the laws in your state, particularly the rules regarding toxic tort defenses.

In the past decade, toxic tort claims have often resulted in very high damages awards for the plaintiffs, so you may wish to contact a lawyer if you’ve been involved in a case of toxic exposure.

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