Preface to the Fifth Edition 6 results (showing 5 best matches)
- This Nutshell is now celebrating its twentieth anniversary. So it is appropriate that I take this opportunity both to reflect on the past twenty years of toxic torts and to look forward to what the future may bring. The proliferation of toxic tort cases has offered courts an unprecedented opportunity to rethink tort doctrine in a new light, and courts have been up to that challenge.
- In the Preface to the First Edition of this Nutshell in 1995, I noted that when I began teaching toxic torts eight years earlier “the field consisted of a sparse collection of mostly unrelated cases.” It is remarkable how far the field has come in such a short period of time, considering its basis in the typically slow-moving common law. Toxic tort law remains one of the most dynamic and provocative areas of the law and is truly evolving a new jurisprudence that is not entirely tort law, environmental law, or science law. More than ever, there is a need to synthesize the new developments into a discrete law of toxic torts. This book takes a step toward realizing that mandate.
- In each new edition of this Nutshell I have identified certain themes and patterns presented by the legal developments of the previous five years. Since the fourth edition was published in 2010, the cases have coalesced around the theme of public law/private law convergence. Although public law inserted itself into toxic torts from the very beginning—through federal preemption, OSHA, food and drug regulation, or any other of the many federal and state acts, regulations, and rules that affected and profoundly influenced the development of the corpus of toxic tort law—this convergence has become more prevalent, challenging, and complex in recent years. One example is the question whether the presence of low levels of contaminants in the environment, at levels below maximum contaminant levels set pursuant to federal law, could still form the basis for common-law claims such as nuisance and negligence. Such cases challenge the very basis of tort law by questioning what constitutes an...
- The past five years have also seen courts plumb the analytical depths of toxic tort law. As courts have struggled to develop legal approaches to the breadth of new problems, they have also plunged into the murkier issues in some detail. Rules need refinement, and the courts are in the process of both understanding the implications of the rules they have fashioned and defining their scope in individual cases. In the context of toxic tort actions for negligent infliction of emotional distress, for example, courts clinging to a physical injury requirement have had to adjust their definition of physical injury as the facts may warrant. Thus, objective indicia of the presence of a toxic substance in the plaintiff’s body may suffice even without symptoms of illness. The tug of the old and the exigencies of the new are often at odds as toxic tort law evolves.
- To an extent that was unforeseen twenty years ago, asbestos litigation continues to command a prominent place in toxic torts. As these cases continue to fill the courts in mass proportions, they have reached a critical juncture, at which courts must directly address a new flood of issues. Thus, for example, in the past courts generally rejected theories of “take-home” asbestos exposure by family members of workers exposed in the workplace. Now that these claims have not abated, courts have begun to bend in unanticipated ways, recognizing that traditional tort rules may need to be flexible to accommodate new kinds of injuries.
- Open Chapter
Chapter 1. Introduction to the Study of Toxic Torts 32 results (showing 5 best matches)
- The term “toxic torts” encompasses a wide variety of claims, both private and public. To some extent, characterizing this law as “torts” is a misnomer. A toxic tort action may be a civil lawsuit, an administrative action for clean-up of hazardous waste, a workers’ compensation claim, or any other of a multitude of actions. What do these actions have in common? What themes tie them together? And why should these particular kinds of actions—tort or otherwise—be treated as a separate category in the law? It is important initially to understand the answers to these questions and to comprehend the various contexts in which a toxic tort may arise. This chapter explores the characteristics of a toxic tort to provide the basis for a more detailed understanding of the kinds of claims and defenses that this book will discuss.
- The long latency periods associated with toxic tort claims generate many problems that are unusual in the standard tort action. For example, statutes of limitations and rules of accrual have needed to be modified to encompass toxic tort actions, in which the time of the defendant’s conduct and the discovery of the injury are separated by an expanse of time. Furthermore, the collection of evidence and even the identification of tortfeasors become more difficult with the passage of time due to missing or imperfect records and lapsed memories. Virtually every aspect of tort law has been challenged by the novel claims and scientific issues that are presented in a toxic tort action.
- In a conventional personal injury action, the testimony of a treating physician often is sufficient to establish the nexus between the defendant’s product or conduct and the plaintiff’s injuries. In toxic tort actions, the testimony of a treating physician on causation is often successfully challenged when unaccompanied by scientific studies. Thus, in the traditional motor vehicle accident, a plaintiff suffering from traumatic head injury typically will rely upon the treating physicians to describe the condition and to offer opinions from their professional knowledge and experience on the connection between the trauma and the patient’s brain damage and the degree of recovery expected. In contrast, in a toxic tort action, the treating physicians may know relatively little about the causation of the illness and, in some cases, may not even know of the exposure. Their task of treating the illness in some instances will be the same regardless of whether it was caused by exposure to a toxic
- Consequently, it is not unusual for a plaintiff in a toxic tort action to bring a claim for which evidence of cause-in-fact is lacking. Courts must decide whether or to what extent to allow such claims. The strongest evidence of causation in a toxic tort action is probabilistic evidence. Such evidence by its very nature can only demonstrate whether the particular substance to which the plaintiff was exposed was of producing the injury alleged. Probabilistic evidence cannot establish that exposure to the substance was the actual cause of the particular plaintiff’s injury. It merely deals in probabilities, never in certainty.
- The exposures that form the basis of toxic tort lawsuits often affect many people. On occasion, the numbers have reached into the thousands or tens of thousands. Some exposures occur at approximately the same time and under the same circumstances, as with the attacks of September 11, 2001 and their aftermath, when numerous persons were exposed to a toxic air mix of chemicals, asbestos, and other substances.
- Open Chapter
Chapter 3. Theories of Liability: Land-Based Claims 71 results (showing 5 best matches)
- Public nuisance continues to play an important role in toxic tort litigation even if its scope and applicability remain unclear. It is a viable claim for public entities and also for private individuals who meet the special injury requirement. Public nuisance merges features of public law with features of private litigation; as such, it exemplifies the characteristic convergence of public and private law in the law of toxic torts.
- Historically, the tort of trespass applies to intentional invasive actions that interfere with a person’s possessory interest in property. In this sense, it is distinguishable from nuisance, which provides a broader claim for interferences with property, as discussed in the next section. For trespass to exist, the defendant need not have actually entered onto the plaintiff’s property if the defendant caused the entry of a tangible substance onto the property. Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 53 (2d ed. 2014). Toxic torts have pushed the technical definition of such an invasion because toxic torts may involve microscopic substances in the air, water, or soil that invade the property of the plaintiff. Notwithstanding this new category of invasive substances, the case law indicates that the tort of trespass accommodates the evolution into toxic torts.
- Traditionally, a trespass action is maintainable even without a showing of harm, resembling a strict liability standard. Thus, nominal damages could be recovered by virtue of the invasion of the property alone. Toxic tort cases have called upon courts to interpret this principle in a different context from that in which the tort of trespass initially arose, as many toxic tort cases involve airborne particulates or invisible particles. In some instances, courts may be reluctant to allow traditional trespass claims under those circumstances.
- When a toxic tort action arises from the defendant’s activities on land, and/or affects the plaintiff’s interest in property, the relationship between private law and public law becomes clearest. The activities out of which such claims may arise can be quite diverse, from the disposal of hazardous waste to ordinary industrial activity. While the law of torts provides remedies for such injuries, the law has been asked to stretch traditional causes of action to fit the toxic tort context. In addition, federal and state laws regulate many activities on the land, and defendant companies may be subject to additional regulatory liabilities beyond the strict operation of tort law. Most notably, private toxic tort actions may be associated with clean-up liabilities pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. The private state-law actions are set forth in this Chapter, whereas a more detailed...
- A claim for private nuisance arises from the tortfeasor’s unreasonable nontrespassory interference with a private individual’s use and enjoyment of the individual’s property. Restatement (Second) of Torts § 821D-F (1979). Where there is entry on the plaintiff’s property, the plaintiff may have both a trespass claim and a private nuisance claim. In Scribner v. Summers, 84 F.3d 554 (2d Cir.1996), for example, the court held that barium contamination of the landowners’ property from an adjacent metal treatment facility constituted both a trespass and a private nuisance. In toxic torts, private nuisance claims tend to focus on pollution (air, water, ground), unpleasant odors, and loss of property value. Generally, the nuisance must be both substantial and unreasonable. This does not mean that the defendant’s conduct must be shown to be unreasonable (although it might be); rather, it must be unreasonable for the plaintiff to be required to tolerate the nuisance without compensation....toxic
- Open Chapter
Chapter 8. Causation 117 results (showing 5 best matches)
- Causation and harm are, of course, separate elements of a tort that must be proven by the plaintiff. In toxic torts, however, they are intertwined in complex ways. In one sense, injury is a prerequisite to causation, as the plaintiff must connect the exposure to some ultimate harm. But in toxic tort cases courts may be asked to recognize unprecedented new harms, with causation in dispute. These injuries—and their requested damages—will be more thoroughly explored in Chapter 9, . But a word about the interrelationship between legal injury and cause-in-fact is warranted at this juncture.
- A rapidly evolving type of novel scientific methodology with great relevance to toxic causation is toxicogenomics. In a general sense, toxicogenomics examines the interaction of genetics and environmental exposures. Genetics may inform the causation analysis in some ways that could have a profound impact on toxic tort law in the future.
- The goal of most toxic tort plaintiffs is to prove that the that the exposure caused the injury was sufficiently high to make up for the problems in demonstrating cause-in-fact. Probabilistic evidence such as statistical studies and published medical data is the most common form of evidence that toxic tort plaintiffs seek to introduce in support of their causation cases. This contrasts with the often exclusive reliance in traditional tort actions on direct medical evidence of the plaintiff’s condition. Although courts have been amenable to circumstantial evidence of all sorts in traditional tort actions, probabilistic evidence is often viewed in toxic tort actions with disfavor and even disdain.
- In toxic tort actions, the plaintiff usually cannot draw a direct factual connection between the defendant’s activity or product and the injury alleged. Latent disease, which characterizes toxic injury, is vastly different from traumatic or acute injury that is typical of the traditional tort claim, such as a motor vehicle accident. Consider the example presented in Allen v. United States, 588 F.Supp. 247 (D.Utah 1984), in which the court was confronted with claims of leukemia and other illnesses alleged to have been caused by exposure to radiation during the atomic testing program conducted by the United States Government. The court distinguished the toxic causation presented in the action from standard tort causation, stating:
- court announced a sweeping FRP test for causation in occupational toxic tort cases. The court stated: “A plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation by establishing: (1) factual proof of the plaintiff’s frequent, regular and proximate exposure to a defendant’s products; and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff’s condition.” Furthermore, in the absence of Bessemer’s records, the court held that the jury could rely upon the lay and expert testimony to establish the plaintiff’s exposures.
- Open Chapter
Chapter 5. Liability of Employers 64 results (showing 5 best matches)
- An often overlooked limitation on occupational disease claims is that they must be suffered by . This may seem obvious, but especially in the area of reproductive and genetic injury, persons related to the worker, such as a spouse or children, may claim to have been injured as a result of the worker’s employment exposure to toxic substances. For example, a child of a worker may suffer a birth defect that allegedly was caused by the worker’s exposure to a substance in the course of his or her employment. These third parties are limited to tort law—which may or may not provide recovery for the kind of claim brought and which may be subject to more stringent causation requirements than the work-relatedness requirement of workers’ compensation law—for a remedy.
- Issues of toxic exposures in the workplace present a paradigmatic public and private law model. The product liability theories discussed in Chapter Two often arise within the context of the workplace. But, as this chapter will explore, product liability typically is only an option for the injured worker outside of the employer-employee relationship. This chapter addresses liabilities that inhere directly in the employment relationship. Many of the rules that apply in the workplace are not rules that derive from the common law of torts, however. Legally, the workplace is primarily a public law forum, and statutory regulation and administrative law tribunals play prominent roles in the investigation of the impact of hazardous substances and the resolution of claims related to toxic exposures.
- These cases indicate that the traditional distinctions between intent to injure and reckless endangerment of the health of workers may become blurred in the toxic tort context. Notwithstanding these developments, however, most states continue to construe the intentional misconduct exception narrowly. Its use by an employee, therefore, as a means of bringing an independent action against the employer may be quite limited, depending upon the jurisdiction.
- The more restrictive approach is exemplified by Franklin v. Tedford, 18 So.3d 215 (Miss.2009). Employees of a furniture manufacturer brought claims for battery against their employer, claiming that the employer had intentionally exposed them to high levels of neurotoxic glue fumes. The Mississippi Supreme Court reaffirmed the intentional tort exception to exclusivity, but also reaffirmed state law requiring that the plaintiff show “actual intent to injure the employee.” The court ruled that fact questions existed in this case. . Bowden v. Young, 120 So.3d 971 (Miss.2013) (holding that the trial court should have dismissed the plaintiffs’ intentional tort claims against their employer law firm for failing to remediate toxic mold because actual intent to injure could not be shown). In Walston v. Boeing Co., 334 P.3d 519 (Wash.2014), the Washington Supreme Court employed the statutory “deliberate intention” standard in holding that knowingly exposing employees to asbestos did not...
- This exception is extremely limited in toxic tort actions. In general, it applies where an employer undertakes a duty to the employee that is independent of and separate from the employer-employee Duprey v. Shane, 249 P.2d 8 (Cal.1952) (applying the dual capacity exception where a chiropractor-employer allegedly negligently treated the employee for a work-related injury) (application of the doctrine confined by 1982 statute to a narrow class of actions). But in Ashdown v. Ameron Int’l Corp., 100 Cal.Rptr.2d 20 (Cal.Ct.App.2000), the court rejected the worker’s estate’s argument that the company was both his employer and a manufacturer of a hazardous product with a duty to warn about its dangers.
- Open Chapter
Chapter 10. Mass Toxic Torts 156 results (showing 5 best matches)
- Although procedures for certifying class actions exist under both federal and state law, this chapter employs the federal class action device, as set forth in Rule 23 of the Federal Rules of Civil Procedure, as a model for understanding the procedural requirements and issues inherent in the mechanism. The Agent Orange litigation, filed in 1979 and settled in 1984, was the first fully documented example of the use of the class action device in mass toxic tort litigation in federal court. As a result, the Agent Orange litigation gives a cradle-to-grave picture of a mass toxic tort class action, and even a glimpse into its legal afterlife. The action arose from the use of the herbicide 2, 4, 5-trichlorophenoxyacetic acid, commonly known as “Agent Orange,” in United States military operations during the Vietnam War. The course of the litigation demonstrated judicial efforts to manage the numerous complex procedural problems of a mass toxic tort, through the efforts initially of Judge...
- Most judicial efforts to settle mass toxic tort litigation have logged a considerable amount of time contemplating the appropriate treatment of indeterminate plaintiffs. Further, the use of aggregative procedures to resolve mass toxic tort litigation reflects the tension between the desire for individualized resolution of causation and the efficiency of collective resolution.
- While the class action device tends to be the most visible aggregative procedure, it is by no means the only one. Multidistrict litigation transfer in the federal courts and consolidation in both state and federal courts have been used very effectively for some mass torts. This Chapter offers a look at these aggregative procedures in the mass toxic tort context. Courts not only must decide whether the use of aggregative procedures will benefits the litigants, but also must choose which aggregative procedure is most appropriate in a particular type of litigation. But the court’s special role in mass litigation does not end at that point. The court is constantly involved in developing and executing case management procedures focused on the particular problems of the mass toxic tort case.
- Mediation can facilitate negotiation, particularly when the parties are entrenched in their positions. Traditional mediation methods may not be appropriate for mass toxic tort cases, but the nature of ADR is that it may be customized for the particular case and the particular set of problems presented. For example, mini nonbinding discovery may advance the case at the pretrial stage in ways that could lead to settlement or clarification of the issues for trial, saving overall time and costs. If mediation is incorporated into the case, it may be an opportunity to bring scientific expertise into the equation. A wisely chosen mediator knowledgeable in the science of the case could bring the parties together in a way that a judge in more formal proceedings could not. For a thoughtful argument on the uses of mediation in mass tort litigation, see D. Alan Rudlin,
- Toxic torts compound the above problems. Because statutes of limitations have been relaxed to accommodate latent disease claims, actions accrue later and later. This does not create the “wait-and-see” scenario of the bus accident, in which all plaintiffs were injured at the same time and some chose to sit out and wait for a favorable verdict, then come in and attempt to use collateral estoppel. Rather, in latent disease cases, many plaintiffs have no choice but to wait, as their illnesses will manifest at later dates. Further, in toxic torts, claims may arise from the same general conduct of the defendant, but the circumstances of the plaintiffs’ exposures may vary considerably. In Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5th Cir.1982), the court applied the rule of and found enough problems with allowing the use of offensive collateral estoppel that its utility in toxic tort litigation is seriously in question.
- Open Chapter
Chapter 6. Other Special Defendants 110 results (showing 5 best matches)
- The United States Government has waived its sovereign immunity for tort claims in limited circumstances. The Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) (West 2014), provides that the federal district courts shall have exclusive jurisdiction over claims for money damages against the United States alleging personal injury, wrongful death, or property damage as a result of a negligent act or omission by a Government employee within the scope of employment. Although the case law interpreting the Federal Tort Claims Act generally has developed outside of the context of toxic torts, several significant toxic tort cases have involved interpreting the Act and its exceptions.
- Insurance issues in toxic torts typically arise as matters of interpreting the provisions of comprehensive (or commercial) general liability (CGL) policies. As a matter of established law, the duty to defend the insured is broader than the duty to indemnify, although courts may become involved in both aspects. While discussion of all the issues raised by CGL policies in the context of toxic tort litigation is far beyond the scope of this book, a brief overview of some of the issues is useful here.
- These examples demonstrate the complexity of the issues related to state sovereign immunity. The World Trade Center issues show the difficulty courts have with applying immunity provisions developed in a completely different context to the aftermath of a massive toxic release caused by a terrorist attack. For a discussion of all aspects of the World Trade Center exposures, see Jean Macchiaroli Eggen,
- The DES experience pushed the problem of indeterminate defendants to the forefront of toxic tort litigation. The legal options weighed by the courts in the DES context formed the basis for arguments by plaintiffs in other toxic litigation contexts. Judicial resistance to collective liability only highlighted the unfairness to a plaintiff who had no means of determining the precise defendant responsible for his or her injuries. Courts continue to consider the traditional collective liability options and to create new options to resolve this fundamental unfairness without unduly burdening defendants.
- These brief examples demonstrate that new issues uncontemplated by the drafters of the CGL policies will continue to arise, thus requiring careful interpretation of the policy language. In addition, although the language of the pollution exclusion clause has changed, courts may be called upon to interpret both the old and new versions in the context of toxic tort actions. When the plaintiff alleges latent illness from an exposure that occurred years earlier, multiple insurers and policies could be implicated, depending upon the trigger of coverage used. Accordingly, the opportunity for numerous complex issues of coverage often presents itself in toxic tort insurance litigation.
- Open Chapter
Chapter 2. Theories of Liability: Products 146 results (showing 5 best matches)
- Failure to warn of the hazards of an allegedly toxic product is a separate product liability theory. It also constitutes a product defect, known sometimes as an “information defect.” The leading failure-to-warn case in the area of toxic torts is Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), previously discussed. A major difficulty in applying the developing law of warning defects to toxic torts is the unknowability of hazards at the time of the manufacture and sale of the product. Thus, an issue has arisen as to whether the seller may defend against the action on the ground that it did not know, nor could it have known, the consequences of the product’s use at the time of the plaintiff’s exposure. The general rule in almost all jurisdictions is that defendant product sellers may defend on this ground. This “state-of-the-art” defense is discussed in more detail under product defenses, . In light of this knowability requirement, the analysis of failure to warn
- Toxic tort claims stretch the law of product liability beyond its originally intended limits. Consequently, it is within the context of toxic tort actions that courts have been asked to apply certain product defenses in new ways. This has been particularly notable with respect to the unknowable character of many hazards at the time the product was sold. While this information is always relevant to negligence claims, and is usually relevant in product liability claims, dissenting arguments raise important policy questions about the role of strict liability in the tort system.
- A manufacturing, or production, defect relates to a product that was produced out of conformity with the product line’s design and the manufacturer’s intent. The classic example of a manufacturing defect is one of the cases in which a decomposed mouse was found in a bottle of soda. , Shoshone Coca-Cola Bottling Co. v. Dolinski, 420 P.2d 855 (Nev.1966). Although toxic tort actions may certainly arise from manufacturing defects, such claims are less frequent in the toxic tort context than are claims based on design defect or failure to warn. Nevertheless, a manufacturing defect claim may arise where, for example, a foreign chemical contaminates a batch of a particular product.
- Claims for defective design allege that all units in a product line present an unacceptable hazard to the ultimate user or consumer. The defect is designed into the product. In toxic tort cases, claims for defective design appear across many different kinds of products, including prescription drugs, cigarettes, chemical compounds, and a range of consumer products from drain cleaners to plastic baby bottles.
- No discussion of toxic torts would be complete without some mention of the reform movement. Tort reform has taken different shapes and has moved on several fronts, most notably various legislative initiatives both at the state and federal levels. It has generally taken the form of efforts to cap noneconomic damages and punitive damages and to narrow litigation, especially medical malpractice lawsuits and product liability litigation. Because of the heavy emphasis on product liability in the tort reform movement, this discussion of reform measures is included here in the chapter on toxic product liability. But tort reformers have also directed their efforts at tort litigation generally, and much of the discussion here applies to torts beyond product liability actions.
- Open Chapter
Chapter 7. Defenses 107 results (showing 5 best matches)
- The interface between private law and public law is a fundamental characteristic of toxic torts. Much of the conduct alleged in private toxic tort actions is regulated to some degree by public law mechanisms, embodied in statutes or regulations. To a great extent, private rights of action exist independently from the regulatory schemes. But occasionally, and increasingly, there is overlap between duties defined by public law, particularly federal statutes and their related web of regulations, and those defined by state common law. When this overlap is contradictory or creates sufficiently ambiguous obligations, the defendant may be able to assert a defense that the federal public law obligation preempts the operation of state common law. If the defendant is right, the preempted claims will be dismissed. This Chapter examines the impact of federal law on state common-law tort claims.
- The United States Supreme Court has been very active in the area of product preemption, with many cases arising from toxic or related tort actions. The seminal case in matters related to express preemption and toxic torts was Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). Although the case dealt directly and narrowly with the impact of two cigarette labeling acts on state tort law, the decision has proven to be far-reaching in its doctrinal scope. Indeed, ’s significance has not only touched all aspects of tobacco litigation—from smoker suits to environmental tobacco smoke suits to challenges to cigarette advertising—but also influenced tort litigation involving products other than tobacco.
- As the cases demonstrate, interpreting statutes of repose in the context of latent injuries in toxic tort actions is often problematic. The Illinois real property repose statute construed in was obviously intended for property damage claims and accidents, rather than disease claims. And product repose statutes contemplated accidents, rather than disease. Notwithstanding the poor fit between many toxic torts and statutes of repose, courts have tended to interpret repose statutes strictly unless a specific statutory exception applies. Thus, in Klein v. DePuy Inc., 506 F.3d 553 (7th Cir.2007), the Seventh Circuit refused to read a disease exception into the North Carolina statute of repose, emphasizing that a major purpose of the statute was to shield manufacturers from open-ended liability.
- court looked at another dimension of claim-splitting as well. Traditional rules of tort law allow a plaintiff to recover for all damages, past, present, and future, flowing from the actionable conduct of the defendant. The court noted, however, that traditionally future damages must be reasonably certain to be recoverable. The difficulty toxic tort plaintiffs would have proving the reasonable certainty of a future illness influenced the court in preferring a rule allowing claim-splitting.
- Res judicata, or claim preclusion, often presents a dilemma for plaintiffs and courts in toxic tort actions. This is because toxic injury does not present itself in the manner of traditional injuries. Take the example of asbestos-related disease. An asbestos worker, knowing he has been exposed to the substance and learning of the hazards associated with it, may first believe that he has a claim for fear of contracting asbestos-related disease or a claim for increased risk of contracting the disease, two types of claims discussed in Chapter Nine. The worker then may manifest asymptomatic pleural plaques in the lungs, a condition associated with exposure to asbestos. Subsequently, the worker may develop asbestosis, and ultimately, perhaps, suffer from mesothelioma, a form of cancer that is found in high rates in asbestos workers. If the worker chooses to bring an action when he suffers from asbestosis, but not yet from mesothelioma, will a subsequent claim
- Open Chapter
Chapter 9. Injuries and Damages 105 results (showing 5 best matches)
- Sometimes a toxic tort action is brought for a tort that was directly committed on a parent of the injured plaintiff prior to the plaintiff having been conceived. In recent years, the question of the liability of defendants for such preconception torts has arisen in the attenuated context of the “DES grandchildren” litigation. The classic DES case is one brought by a child of the woman who ingested the DES while pregnant with that child. This is essentially a prenatal tort—alleging that the tortious act of the defendant directly injured the plaintiff by an exposure in utero prior to birth. The grandchildren, however, cannot allege that they were exposed directly to the DES, thus causing courts to question their right to recovery.
- In the toxic tort context, most courts that recognize increased risk claims require the present manifestation of illness. For example, in Kelley v. Cowesett Hills Assocs., 768 A.2d 425 (R.I.2001), the court declined to allow a claim for increased risk of asbestos-related disease, stating the “the possibility of contracting cancer resulting from mere exposure to a carcinogen, although potentially increasing one’s risk of developing cancer, is too tenuous to be a viable cause of action.”
- Courts generally will not allow stigma damages in the toxic tort context unless there is proof of actual injury to the property or interference with use of the property. In Smith v. Kansas Gas Service Co., 169 P.3d 1052 (Kan.2007), the Kansas Supreme Court rejected a claim for stigma damages, even though the plaintiffs provided expert testimony showing a five percent loss of value of the homes located within one-quarter mile of a natural gas storage yard from which gas had been released. The plaintiffs had not provided evidence that their property had been contaminated or otherwise harmed by the release. In Adams v. Star Enterprise, 51 F.3d 417 (4th Cir.1995), the district court refused to allow stigma damages because the plaintiffs’ basis for the damages was merely public fears of future contamination. The plaintiffs made no allegations that they had experienced any actual odors, groundwater contamination, or other interference with their property. Moreover, as the Fourth Circuit...
- Some toxic tort plaintiffs have attempted to base negligent infliction of emotional distress claims on the concept of bystander liability. Dillon v. Legg, 441 P.2d 912 (Cal.1968) exemplifies the classic scenario for bystander liability, in which the plaintiff observes a close family member being physically harmed by the tortious conduct of the defendant. In , the mother of a young child saw the defendant’s vehicle strike and kill the child who was crossing the road. The mother was not physically harmed, nor was she ever in danger of being harmed. Courts that recognize bystander liability generally impose three requirements: (1) the plaintiff must have been present at the scene of the injury to the third person; (2) the plaintiff must be closely related to the injured person; and (3) the plaintiff must have suffered emotional distress contemporaneously with the event, and such emotional distress must be more serious than what would be expected of a disinterested observer. In toxic
- The United States Supreme Court also has expressed support for the physical injury requirement in toxic tort cases. In Metro-North Commuter Railroad v. Buckley, 521 U.S. 424 (1997), an asbestos-exposure case involving a claim for emotional distress damages under the Federal Employers Liability Act (FELA), the Court held that plaintiffs without physical disease or symptoms may not recover under FELA for emotional distress damages. In so ruling, the Court distinguished an earlier Supreme Court case, Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), in which the Court had ruled that a plaintiff suffering a “physical impact” may bring a claim for emotional distress absent a physical injury. The Court in stated that “physical impact,” as conceived in , did not encompass exposure to a substance that might cause a latent illness. The Court stated that such physical impact “does not include a simple physical contact that might cause a disease at a substantially later time—where...
- Open Chapter
Chapter 4. CERCLA Liability 83 results (showing 5 best matches)
- The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601–9675 (West 2014), is part of a broad federal scheme of regulation of industry. The enforcement provisions of CERCLA call attention to the fact that a toxic tort defendant may face an assault of actions on several fronts. Common-law torts may be only a portion of the defendant’s worries. Attorneys should prepare to advise and defend their clients in all these areas involving public, as well as private, law.
- The citizens suit provision permits persons to act as private attorneys general to remedy violations that have not otherwise been remedied under the other provisions of the Act. As such, in many ways it is the federal statutory complement to the public nuisance action. It is a dramatic illustration of the confluence of public and private remedies in the area of toxic torts. The citizens suit does not, however, authorize citizens to force a cleanup. Rather, it enables citizens to seek enforcement of a Government cleanup order. Additionally, CERCLA further restricts the ability of citizens to interfere with remedial action at a particular site. CERCLA § 113(h)(4) (providing that a citizens suit “may not be brought with regard to a removal where a remedial action is to be undertaken at the site”).
- To understand the potential CERCLA liability of clients who may also be defending separate toxic tort actions, the third-party defense and the innocent landowner defense are the most important.
- A PRP is liable for both Government response costs and private response costs. In addition, a PRP may be liable for natural resource damages and for health assessments pursuant to the Agency for Toxic Substances and Disease Registry, an agency within the Public Health Service established by CERCLA.
- This section makes clear that CERCLA was not intended to preclude individuals’ private rights of action for personal injuries and property damage. Thus, the remedial scheme in CERCLA operates separately from the tort remedies available under state law.
- Open Chapter
Outline 56 results (showing 5 best matches)
Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © West, a Thomson business 2000, 2005 © 2015 LEG, Inc. d/b/a West Academic
- Printed in the United States of America
- Open Chapter
Index Page 22 results (showing 5 best matches)
Acknowledgments 6 results (showing 5 best matches)
- Restatement (Third) of Torts: Liability for Physical and Emotional Harm, Copyright © 2010 by the American Law Institute. All rights reserved. Reprinted with permission.
- Restatement of Torts (Third): Apportionment of Liability, Copyright © 2000 by the American Law Institute. All rights reserved. Reprinted with permission.
- Restatement (Third) of Torts: Products Liability, Copyright © 1998 by the American Law Institute. All rights reserved. Reprinted with permission.
- Restatement (Second) of Torts, Vols. 1 & 2, Copyright © 1965 by the American Law Institute. All rights reserved. Reprinted with permission.
- Restatement (Second) of Torts, Vol. 3, Copyright © 1977 by the American Law Institute. All rights reserved. Reprinted with permission.
- Open Chapter
Table of Cases 42 results (showing 5 best matches)
- All Asbestos Cases Pending in the United States Dist. Court for the Dist. of Maryland, In re........467
- Agent Orange Prod. Liab. Litig., In re........209, 210, 212, 322, 433, 436, 498, 499
- Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., In re........465
- Asbestos and Asbestos Insulation Material Prods. Liab. Litig., In re........465
- Asbestos Litig., In re........59
- Open Chapter
Table of Statutes 47 results (showing 5 best matches)
Advisory Board 2 results
- Publication Date: July 17th, 2015
- ISBN: 9781628103519
- Subject: Toxic Torts/Hazardous Materials
- Series: Nutshells
- Type: Overviews
- Description: This work introduces the study of toxic torts and identifies the theories of liability related to both toxic products and environmental pollution. It also covers special defendants, such as employers, governmental entities, and government contractors; workers’ compensation; insurance coverage issues; key defenses such as statutes of limitations and preemption; causation and scientific evidence; and new theories of injury and damages. A chapter examines regulation of hazardous releases into the environment under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The work also addresses mass toxic torts and examines emerging actions related to nanotechnology and hydraulic fracturing.