Personal injury is a very broad field of law that covers many situations where one party is harmed by another. Sometimes, it is very easy to sort out exactly how the harm occurred. For instance, when a car accident happens and one vehicle hits another, a direct link can be drawn between the impact of the collision and the injuries that show up immediately afterward. In other cases, things become more complicated because injuries might not happen quite so visibly or might not occur immediately. Nowhere is this more true than in most toxic tort personal injury cases.
The phrase "toxic tort" usually refers to different types of tort cases that have one thing in common: the plaintiff alleges harm due to exposure to some kind of toxin (or chemical). Some specific instances where a plaintiff might be exposed to a chemical include:
These are just a few examples of situations where a person could suffer health problems stemming from exposure to a toxin.
A toxic tort case could be brought against a number of potential defendants, including a company that dumped the pollutants in the groundwater, a manufacturer of asbestos, a landlord who didn't properly make sure an apartment was free from mold or lead paint, or the manufacturer of a dangerous drug.
Those who are affected by toxic torts can usually recover damages through a personal injury lawsuit. The major exception to the ability to recover through a civil lawsuit is when a worker is injured by a toxin at work. Although his or her employer may have been directly responsible for the exposure that occurred, work-related injuries are not handled through the civil tort system. Instead, all of the 50 states in the US have passed legislation that creates an exclusive remedy through the workers' compensation system.
While a workers compensation claim is usually the sole remedy for on-the-job injuries, if a worker was injured by something like asbestos, which was manufactured by a third party, then the worker may be able to make a claim against the asbestos manufacturer in a standard civil lawsuit.
Claims for personal injury damages generally must be made within a set period of time after an injury or incident has occurred. This is usually a period of two or three years, although in some states it can be longer or shorter. The law that sets this deadline is called the statute of limitations.
One big issue that comes up in toxic tort cases often is that the injury may not show up right away. For instance, someone might be exposed to groundwater that has been contaminated, and they may develop cancer, but not until 10 years after the initial exposure took place. To deal with this problem, many states have something called a "discovery rule." Essentially, under this rule, the statute of limitations clock does not start ticking until the injury is known or reasonably should have been known.
Assuming that you are legally eligible to file a lawsuit and you wish to make a claim against the party who was responsible in the toxic tort action, there are several essential things that are required to be proven in the case. You need to:
Establishing a legal duty is usually pretty easy. For example, you can prove your landlord had a duty to provide you with a safe and habitable environment free of lead paint or mold; that your drug company had a duty not to make products that could seriously harm or kill you without warning you of any dangers; and that companies had a duty to local citizens not to dump chemicals into the ground to contaminate wells and land.
This, too, is often easy. The standard is going to vary based on the kind of case, however. Negligence is a common legal fault principle, and will look at whether a reasonable party may have been more careful. Evidence that a company broke the law, such as those companies who dump chemicals in violation of EPA regulations like CERCLA, and/or various clean air and water acts, can be good evidence of a breach of duty. If the claim is based on a defective drug, then strict liability might be used instead of negligence and will result in a defendant being considered to have breached his duty if there was a defect in the product even if the defendant wasn't careless.
This involves proving that the breach of legal duty was the direct, or proximate cause of the harm you are claiming to have suffered. This is often the most challenging aspect of any toxic tort claim.
This last step involves showing that you incurred an injury, had to pay medical bills, had to miss work, suffered pain or distress, and/or suffered other compensable damages.
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