Toxic Torts

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TOXIC TORTS

In law, a tort is a wrongful act that causes harm and for which a court will provide a remedy. For example, a pedestrian injured by a careless driver may file a "tort action" (lawsuit) to recover compensation from the driver. A toxic tort is one in which the wrongful act consists of exposure to a toxic substance. This could occur in a variety of ways, such as an accidental release (e.g., a chemical spill or explosion), workplace exposure (e.g., to solvent fumes or asbestos), or harmful effects from medications or other consumer products.

Tort compensation, or damages, may be recovered for a variety of losses, including medical expenses, lost earnings, and pain and suffering. By shifting these costs from the victim to the wrongdoer, the tort system seeks to accomplish certain policy goals, including deterrence of harmful conduct and, where relevant, the promotion of public health and safety.

The injury in a toxic tort case may be "acute" (immediate)—fatal poisoning or burns to the skin are acute injuries. Classically, however, the injury involved in toxic tort litigation is a serious latent disease, such as cancer or birth defects, that may not develop until many years after the toxic exposure. In cases involving latent disease, there is virtually always a dispute over causation. The plaintiff has the difficult burden of proving that the disease resulted from the particular exposure, which may have occurred ten or twenty years earlier, rather than from some other cause (e.g., genetic inheritance, smoking, lack of exercise, diet, some other toxic exposure, or simply from "unknown causes").

Asbestos is one exception where medical science can positively trace the substance that caused a patient's cancer or other serious disease. As a result, huge tort recoveries have virtually closed down asbestos manufacturing in this country.

The potential for toxic tort liability can affect new products as well. A manufacturer may decide against the development and marketing of a dangerous product if tests show that the risk of injury—and therefore of tort liability—is too high. Sometimes, however, the specter of toxic tort litigation deters the manufacture of beneficial products, such as vaccines and other pharmaceuticals. In the 1980s and 1990s, numerous toxic tort suits alleged that the controversial drug Bendectin, prescribed for morning sickness during pregnancy, caused birth defects. Scientific evidence presented by the manufacturer persuaded the courts that Bendectin does not cause birth defects. Nevertheless, the manufacturer stopped producing Bendectin, reportedly due to the high cost of defending itself in repetitious litigation.

Courts can grant a variety of remedies in toxic tort cases that can benefit public health. For example, where toxic wastes leach from a disposal facility and contaminate a public water supply, a court can require the facility's owner to clean up the contamination, pay for an alternative safe water supply, and pay for medical care of anyone who develops disease from the contamination. Moreover, the desire to avoid tort liability may persuade facilities to exercise greater care to prevent the escape of toxic wastes.

Toxic tort lawsuits are sometimes initiated soon after a toxic exposure—especially a mass exposure—even though the plaintiffs have no physical symptoms of disease. Plaintiffs have argued, without much success, that they should receive present compensation because the exposure increases their risk of developing cancer in the future, and also for the emotional distress caused by their fear of future cancer. Courts have been more receptive to the argument that exposure victims should be compensated for the expense of periodic medical monitoring. Courts have reasoned that monitoring awards will foster early detection and treatment, which would help eliminate or mitigate future disease.

Russellyn S. Carruth

(see also: Asbestos; Public Health and the Law; Toxic Substances Control Act )