Toxic Torts in a Nutshell
Author:
Eggen, Jean Macchiaroli
Edition:
6th
Copyright Date:
2019
21 chapters
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Preface to the Sixth Edition v 3 results
- It has only been three years since the publication of the fifth edition of this Nutshell, but the toxic tort landscape is rapidly expanding to a limitless horizon. Beneath that landscape, however, are some shifting geological plates, largely in the area of public law. These shifts include efforts by the federal government to reduce regulation—including environmental regulation and drug approval requirements—and a move to minimize the role of science, including the impact of climate change, in regulatory decision making. The amended Toxic Substances Control Act, 15 U.S.C.A. §§ 2601–2697 (West 2018), effective in 2016, is yet to be fully addressed by the Environmental Protection Agency or the courts. And some observers have noted a weakening of the rule of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), which requires courts to defer to an agency’s own interpretation of a statute that is silent or ambiguous on a particular question, provided that the...In
- I have previously emphasized the need to synthesize the many new developments in toxic tort law into a cohesive doctrine, as a branch of tort law having its own rules that address its own discrete problems. This process has begun, with courts, the American Law Institute, and state legislatures all contributing to it. What is clear is that the role of the courts will continue to be instrumental in resolving the issues posed by toxic torts litigation. This Sixth Edition provides a summary of these ongoing developments, including the interaction between public and private law. In addition, it identifies new legal issues emerging in toxic tort litigation. These new issues may be broad—such as applying the law of public nuisance to opioid litigation—or narrow—such as determining whether a medical monitoring class action may be based upon levels of the chemical in the class members’ blood. These emerging issues are always intriguing, challenging, and provocative.
- Opioid litigation, talc litigation, generic drug litigation, take-home toxins, PFOAs. These are just a few of the toxic torts that have emerged in recent years and which present their own unique set of challenges for the judicial system. In addition, the staples of toxic tort litigation are showing no signs of waning: environmental pollution, asbestos product liability, and cigarettes, including the legal issues raised by the proliferation of e-cigarette usage.
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Chapter 1 Introduction to the Study of Toxic Torts 1 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 only 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 the 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 physical damage, her pain and suffering, 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...
- The problems of causation outlined above, and discussed in greater depth in Chapter 8, render it necessary for the parties to a toxic tort action to focus closely on establishing or refuting a legally and factually cognizable connection between the exposure alleged and the injury suffered by the plaintiff. In a conventional tort action, causal connections could be established to the jury by circumstantial evidence on matters often within the jury’s knowledge and experience. The scientific and medical nature of toxic torts, however, requires the presentation of evidence about which few laypersons have the requisite level of knowledge or experience.
- Toxic tort actions involve substances as diverse as asbestos, consumer products, prescription drugs, chemical compounds, radiation, and hazardous waste. The harm claimed is equally diverse. Claimants may seek compensation for personal injuries or property damage. But claimants may also seek to recover for diminished value of property, impaired quality of life, or for the costs of cleaning up a contaminated site. In general, however, toxic tort claims involve the release of and exposure to—or threatened release of—one or more substances alleged to be “toxic.” The definition of what is “toxic” may vary, depending upon the context in which it appears. Generally, the use of the term in legal circles is looser than its use in medical or scientific circles. A broad, workable definition is given in the Toxic Substances Control Act (TSCA),
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Chapter 3. Theories of Liability: Land-Based Claims 97 88 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.2016). Toxic torts have challenged 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.
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Chapter 8. Causation 339 126 results (showing 5 best matches)
- A rapidly evolving type of 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 near 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 (via expert testimony) 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.
- 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.
- 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 succinct explanation offered in , 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:
- Nearly every toxic tort case involves a dispute over the admissibility of the scientific evidence, not only due to challenges to the validity of the evidence proffered, but also due to questions about the relationship of the evidence to the specific plaintiff. Judges have become more aware of and conversant in the issues of scientific evidence, and close judicial scrutiny of the scientific studies on which expert testimony is based has become a staple of toxic tort litigation.
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Chapter 10. Mass Toxic Torts 463 175 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 , 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 Pratt and later Judge Weinstein. While recent...
- and the Agent Orange product liability litigation are just two examples of courts working to find an acceptable solution to the unique problems presented by mass toxic tort litigation. Most judicial efforts to resolve 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 presents a look at some of these aggregative procedures in the mass toxic tort context. Courts not only must decide whether the use of aggregative procedures will benefit 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—either voluntary or court-ordered—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,
- Because tort law is a matter of high state interest, even generally recognized tort concepts have been subject to idiosyncratic interpretations and applications that vary from state to state. These state-to-state variations create an additional layer of complications when toxic tort actions have been aggregated. The claims of the individual plaintiffs may be subject to different state laws and, therefore, different tort rules. This may lead to conflicting results among similar claims that have been aggregated in one forum.
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Chapter 5. Liability of Employers 177 65 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 2 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—or seeking enhanced benefits in those states that have such provisions—may be quite limited, depending upon the jurisdiction.
- This exception is extremely limited in toxic tort actions. In general, and where recognized, it applies when an employer undertakes a duty to the employee that is independent of and separate from the employer-employee relationship. (applying the dual capacity exception where a chiropractor-employer allegedly negligently treated the employee for a work-related injury) (subsequently, dual capacity doctrine confined by statutory amendment to a narrow class of actions). But, more relevant to toxic torts, in , the court rejected the worker’s estate’s argument that the company was both his employer and a manufacturer of a hazardous product with an actionable duty to warn about its dangers.
- . 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,” not merely negligence, gross negligence, or recklessness. The court ruled that fact questions existed in this case. (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 employed the statutory “deliberate intention” standard in holding that knowingly exposing employees to asbestos did not constitute intentional conduct. The court pointed out that asbestos exposure is not certain to cause any disease; rather, it merely creates a risk of disease....
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Chapter 6. Other Special Defendants 215 114 results (showing 5 best matches)
- 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.
- The United States Government has waived its sovereign immunity for tort claims in limited circumstances. The Federal Tort Claims Act,
- Insurance companies are significant participants in toxic tort litigation. In contrast to a single event—such as a tree falling on a home or a single product exploding—toxic torts typically extend over a long period of time, presenting unique challenges for insurers. Such claims are often referred to as “long-tail claims.” As defendants seek to interpret their liability insurance agreements as expansively as possible so as to be covered for the activities involved in the underlying lawsuit, their insurers seek to both limit coverage and shift liability to other parties and insurers related to the case. Assume an action in which an asbestos worker suffering from asbestos-related disease files suit against twenty manufacturers of asbestos insulation products. The insurer or insurers of each defendant manufacturer will attempt to shift liability for the full amount of damages onto the other defendants and their insurers. Moreover, where a single defendant was insured by multiple...
- 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, where appropriate, 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 or decades 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.
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Chapter 2 Theories of Liability: Products 19 153 results (showing 5 best matches)
- 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.
- 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.
- 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. . 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.
- Warranty claims are creatures of the law of contracts, and in particular the law of sales. Before plaintiffs were allowed to sue in tort for defective products, warranty claims were the most important type of claim for injuries from products. Plaintiffs continue to assert implied warranty claims in many toxic tort actions, typically along with negligence and strict product liability claims, and such claims remain prominent in the toxic product plaintiff’s arsenal. (asserting warranty claims along with strict product liability claims, negligence, and fraud). Some courts, however, merge claims for implied warranties with design or manufacturing defect claims on the theory that they are mirror images of one another, the former in contract and the latter in tort. , which states: “[A] well-coordinated body of law governing liability for harm to persons or property arising out of the sale of defective products requires a consistent definition of defect, and that the definition properly...
- The law of toxic torts has several provenances. One major source has been the relatively new law of product liability. Another major source has been the more traditional law of torts related to the land, such as nuisance and trespass. A third source has been the public-law arena of environmental and occupational regulation. Chapters 2, 3, and 4 look at these topics. This Chapter will focus primarily on claims against sellers of products. Where appropriate, the discussion will take note of the areas in which interaction between tort law and public law is inevitable.
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Chapter 7. Defenses 281 116 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. Sometimes a federal statute will expressly preclude common-law actions. To a great extent, however, 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.
- 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 traditional product repose statutes also 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 , 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.
- 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 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.
- 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 9. 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 for mesothelioma be barred by...
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Outline 54 results (showing 5 best matches)
Chapter 9. Injuries and Damages 403 113 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 injured plaintiff’s conception. A preconception tort involves an alleged negligent act by the defendant toward the plaintiff’s parent prior to the plaintiff being conceived. The time frame between exposure and conception could be short or decades-long. Courts generally analyze these cases on foreseeability grounds, either as a matter of duty or of proximate cause. Courts are divided as to the legal treatment of preconception claims. A few courts addressing this type of claim have allowed it. In , the court allowed a cause of action by the father of twins born with genetic defects. The twins’ mother had ingested birth control pills prior to the twins’ conception, and the complaint alleged that the birth control pills had caused an alteration in the mother’s chromosomal structure that led to the genetic defect in her children.
- In the 1980s and 1990s, when plaintiffs were first struggling to find cognizable claims based upon risk of disease, these claims for compensatory damages based upon risk seemed appealing. But most jurisdictions have rejected them, at least where the plaintiff has no present manifestation of illness. The United States Supreme Court’s decision in , may cause some to conclude that increased risk claims run afoul of Article III’s injury-in-fact standing requirement. In , the Court stated, however, that the requirement of “ ‘[c]oncrete’ [injury] is not . . . necessarily synonymous with ‘tangible.’ ” Furthermore, the Court stated that “the risk of real harm” may sometimes satisfy the requirement that that the injury be “concrete and particularized.” Indeed, the Court provided examples from tort law to support its statement: “For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure.
- In the toxic tort context, most courts that recognize increased risk claims require the present manifestation of illness. For example, in
- Some toxic tort plaintiffs have attempted to base negligent infliction of emotional distress claims on the concept of bystander liability. 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 tort cases, plaintiffs have sometimes...
- The United States Supreme Court also has expressed support for the physical injury requirement in toxic tort cases. In , 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, , 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 that substance, or related circumstance, threatens no harm other than that disease-related risk.” The difficulty with...
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Copyright Page 6 results (showing 5 best matches)
- 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.
- Printed in the United States of America
- © West, a Thomson business 2000, 2005
- © 2015 LEG, Inc. d/b/a West Academic
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Chapter 4. CERCLA Liability 137 87 results (showing 5 best matches)
- 42 U.S.C.A. §§ 9601
- 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. (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.
- Although toxic tort defendants may be subject to numerous federal and state statutes and regulations, CERCLA plays a unique role. CERCLA is primarily focused upon cleanup of hazardous substances that have been released into the environment and hazardous substance emergencies, whereas many federal environmental statutes tend to focus on the ongoing regulation of various enterprises and activities by means of permits or other standards and requirements. When CERCLA was enacted in 1980, Congress debated but rejected the option of including a provision for a private right of action for personal injuries. Consequently, CERCLA contains no private right of action for damages for persons who claim to have been injured by the releases encompassed by the statute, although it does contain a savings clause that recognizes the rights of private individuals to pursue their tort claims under state law. CERCLA § 310(h)
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Index 555 22 results (showing 5 best matches)
Acknowledgments ix 7 results (showing 5 best matches)
- Restatement (Third) of Torts: Intentional Torts to Persons (Tent. Draft No. 1 April 8, 2015), © 2015 by the American Law Institute. All rights reserved. Reprinted with permission.
- Restatement (Third) of Torts: Liability for Physical and Emotional Harm, Copyright © 2010/2012 by the American Law Institute. All rights reserved. Reprinted with permission.
- Restatement (Third) of Torts: 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.
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Table of Cases xxi 69 results (showing 5 best matches)
- Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, In re, 57
- New York City Asbestos Litigation, In re (Dummitt v. A.W. Chesterton), 81
- All Asbestos Cases Pending in the United States District Court for the District of Maryland, In re, 518
- Accutane Litigation, In re, 387
- “Agent Orange” Product Liability Litigation, In re, 229, 231, 234, 353, 479, 483, 551, 552
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Table of Statutes xli 66 results (showing 5 best matches)
Table of Rules xlix 10 results (showing 5 best matches)
- Publication Date: October 25th, 2018
- ISBN: 9781640202368
- 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 the procedural issues that accompany them. Substantial updates include liability for “take-home” toxins; sovereign immunity under the Federal Tort Claims Act and the government contractor defense; preemption of generic drug claims; and the any-exposure theory of causation.
In addition to the complete update, the Sixth Edition also contains new material on the following:- Bare metal defense in asbestos litigation
- Talc litigation
- Opioid litigation
- Impact of U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court on personal jurisdiction over drug manufacturers in product liability cases
- Impact of U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins on standing
- The 2018 proposed amendments to Fed. R. Civ. P. 23 covering class action notice and settlements
- Flint, Michigan, contaminated water litigation
- PFOA/PFOS litigation
