Jurors in Illinois awarded 12 plaintiffs $72 million after finding a copper tubing manufacturer liable for emitting pollutants that caused the plaintiffs to develop cancer and other health issues.
The Cerro Flow Products lawsuit
Cerro Flow Products LLC owns and operates a copper smelting plant in Sauget, Illinois.
In simple terms, copper smelting plants remove impurities from copper concentrate by heating up the copper concentrate at very high temperatures.
In the 2000s, a number of people living in the area surrounding the Cerro Flow smelting plant were diagnosed with cancer. Many of the diagnosed began to suspect that their cancer was caused by the chemical compounds emitted by the plant.
In June 2009, more than 20 plaintiffs filed a lawsuit against Cerro Flow products. The lawsuit alleged that the manufacturer’s smelting plant had emitted dioxins and furans into the air for decades through its furnace and open-pit burning operations, and that these chemical compounds caused their cancers.
The lawsuit further alleged that Cerro Flow knew about the dangerous chemical compounds, but failed to warn residents in the area.
On October 15, 2021, after a 3-week trial in front of Illinois Circuit Judge Chris Kolker, the jury awarded the plaintiffs $24 million in compensatory damages and $48 million in punitive damages.
"The trial required a detailed and scientific explanation as to what dioxins are, how they cause cancer, and why they were a by-product of Cerro's daily operation for decades,” said plaintiffs’ attorney Lloyd M. Cueto. “Our plaintiffs are wonderful people who have faced tremendous adversity in their battles with cancer. Every one of them had the courage to testify at trial."
An additional 1,200 cancer-victim plaintiffs in Illinois have filed a subsequent lawsuit against Cerro Flow.
What is a toxic tort lawsuit?
A toxic tort lawsuit alleges that a toxic substance injured the plaintiff or their property.
Toxic tort lawsuits generally arise from 1 of the following situations:
- Occupational exposure. Workers who are exposed to toxic substances at work may be able to file a toxic tort claim. The most infamous example of occupational exposure is the millions of workers who were exposed to asbestos beginning in the 1930s.
- Pharmaceutical drugs. A toxic tort claim might arise when a consumer takes a pharmaceutical drug that is unreasonably dangerous or that has unintended side effects.
- Exposure in the home. When people breathe in or ingest toxic substances in their homes (such as toxic mold), a toxic tort claim might be appropriate.
- Consumer products. When people use consumer products that cause illness, a toxic tort claim might be appropriate. For example, hand sanitizers that cause permanent damage to the nervous system might result in a toxic tort claim.
It’s relatively rare for a toxic tort lawsuit to arise from a manufacturer releasing toxins into the air or water (although such cases tend to attract media attention when they happen). Nevertheless, these types of cases do happen from time to time, and they often involve copper smelting plants.
For example, in Opportunity, Montana, hundreds of residents joined a lawsuit alleging that the town’s copper smelting plant caused the plaintiffs and even their pets to develop cancer. The lawsuit settled for a confidential amount in 2019.
Similar lawsuits have been filed in Hayden, Arizona, and Tacoma, Washington, where the Asarco Company operates copper smelting plants.
Toxic tort lawsuits are typically based on negligence or strict liability.
In toxic tort cases where negligence is alleged, the plaintiff must establish the traditional elements of negligence:
- The defendant had a duty to act with reasonable care,
- The defendant breached their duty, and
- The breach was the cause of the plaintiff’s injuries.
For example, the plaintiff may argue that a copper manufacturer breached its duty to exercise reasonable care when it released a carcinogen into the air.
In toxic tort cases where strict liability is alleged, there’s no need to prove fault. Rather, the plaintiff need only prove that the activity causing the harm was “abnormally dangerous.”
In determining whether an activity is abnormally dangerous, courts typically consider the following factors:
- Existence of a high degree of risk of some harm
- The likelihood that the harm that results will be great
- Inability to eliminate the risk by exercising reasonable care
- The extent to which the activity is not common
- The inappropriateness of the activity to the place where it’s carried on
- The extent to which the activities value to the community is outweighed by its dangerous attributes
Regardless of the legal theory used, plaintiffs in toxic tort cases must prove causation. In other words, plaintiffs must establish that the toxic substance was the cause of their injury.
Proving causation is typically the most difficult part of a toxic tort lawsuit for 2 reasons.
First, the scientific community doesn’t always agree on whether a toxic substance causes a particular illness.
Second, the symptoms of exposure may not appear until years or even decades after the exposure, allowing the defense to make the argument that some other intervening factor actually caused the harm.
Notably, the federal Clean Air Act requires the Environmental Protection Agency (EPA) to set emission standards for certain hazardous pollutants emitted by smelters. However, many critics believe that the standards are not strict enough.
What to do if you’ve been injured by a toxic substance
If you suspect you’ve been injured as a result of exposure to a toxic substance, consider reaching out to an experienced personal injury attorney as soon as possible.
When it comes to toxic tort cases, time is of the essence. If you wait too long to contact an attorney, the statute of limitations may expire on your claim. What’s more, evidence will become increasingly more difficult to obtain and it will become more difficult to establish causation.