How Do I Prove Exposure In a Toxic Tort Case?

A big challenge in a toxic tort case can be showing that the plaintiff used (or was exposed to) a harmful chemical or other dangerous substance.

Toxic tort claims are fairly unique among injury cases, and often involve a complex interplay of science, medical records, and personal injury law. In this article, we'll:

  • provide an overview of toxic tort cases
  • discuss key issues related to causation, and
  • focus on methods for proving that you used (or were otherwise exposed to) the dangerous material at the heart of your case.

What Is a Toxic Tort?

Considering the variety of chemicals and potentially-dangerous substances the average person gets exposed to in a lifetime, the list of harmful material that could give rise to a toxic tort claim is almost endless. But most often the exposure comes from:

  • consumer products
  • the environment
  • the home
  • the workplace, and
  • pharmaceutical drugs.

In the vast majority of toxic tort lawsuits, plaintiffs will rely on one or more of the following legal theories to hold the defendant—usually the manufacturer of the product or chemical, or an employer—liable for illness, injury, and other damages:

Regardless of the specific legal argument relied upon, most plaintiffs will—to some extent—need to prove the following elements:

  • the substance was dangerous
  • the plaintiff was exposed to the substance
  • the defendant anticipated or had control over the plaintiff's exposure to the substance, and
  • the exposure caused the plaintiff's claimed injuries.

The remainder of this article will focus on the "exposure" element. For more details on all aspects of these kinds of cases in the employment setting, see our article on injury claims for chemical exposure on the job.

Proving Exposure to a Toxic Substance

In some toxic tort cases, proving exposure to a harmful substance is fairly straightforward. For instance, the link between long-term exposure to asbestos and the development of mesothelioma is well-established, so if you can show an employment history that includes decades spent working with or around asbestos, the defendant probably isn't going to put up much of a fight on the exposure issue.

In toxic tort cases involving a product like Roundup weed killer, the plaintiff might have receipts showing purchase of the product for use at home; or work orders, job protocols, or invoices if Roundup was used on the job. Empty or partially used bottles of Roundup might also come in handy. But when a plaintiff has been diagnosed with non-Hodgkin's lymphoma or some other form of cancer, it's unlikely that Bayer (maker of Roundup) will expend resources on the issue of whether the plaintiff actually used Roundup.

In other kinds of toxic tort cases, there are tests that can confirm the presence of a harmful substance in the body, or signs of current or previous exposure. But these methods of proving exposure aren't always enough to win a toxic torts case. That's because, even though some illnesses are strongly linked to a particular toxin, there's still a chance the illness could be caused by something else.

Then there's the fact that depending on the substance and the amount of exposure, it might take years before the plaintiff gets sick, and can link their illness to their exposure to the dangerous substance. Or, they may have no way to prove how much of the dangerous substance they came into contact with. To get around this, a plaintiff might rely on the use of genetic biomarkers.

A genetic biomarker is a pattern in DNA that relates to the cause of susceptibility to a disease or illness. Depending on the disease and the nature of the toxin, the presence of certain genetic biomarkers can not only prove exposure, but also levels of exposure.

Another method of proof involves direct or indirect evidence of exposure. For example, let's say a plaintiff has developed a form of cancer that they believe came from exposure to benzene over 20 years as a gasoline refinery worker. This plaintiff must show not only that they were exposed to benzene, but the amount of exposure that was typical over the course of a workday, week, month, year, etc. Here, they might submit evidence illustrating what a typical day on the job is like and how much contact the typical refiner worker has with gasoline and related refining products.

The plaintiff, as well as other workers, might testify that for at least six hours each day, they had gasoline on their hands, arms, face, and skin. Then the plaintiff would show that the gasoline on the workers' skin for six hours each day contained high levels of benzene. Next, the plaintiff would have an expert witness testify as to how quickly the skin would absorb the benzene from the gasoline.

If you think you might have a viable toxic tort claim, it might make sense to have a lawyer assess your case and identify your best path forward. Learn more about finding the right lawyer for you and your injury case.

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