A toxin is a substance that’s present in your air, water, soil, or elsewhere in your environment and that has a negative impact on your health.
A cough that doesn’t go away. An itchy rash that suddenly appears and you don’t know why. A neurological diagnosis that your doctor can’t explain. Any of these symptoms (and these are just examples) could be the result of exposure to a toxic substance.
A toxic tort is a personal injury claim for illness caused by exposure to a harmful substance.
Toxic tort claims originate from exposure at work, at home, through consumer products, and from pharmaceutical drugs and devices.
Here are some examples of substances that lead to common toxic tort claims:
| Toxin | Injury |
|---|---|
| Lead-based paint | Brain damage in children |
| Asbestos | Lung cancer, mesothelioma, other lung diseases |
| Solvents from dry cleaning processes | Brain and major organ damage |
| Toxic landfill waste | Leukemia and related blood conditions |
| Drugs and pharmaceuticals | Depends on the specific drug |
| Electromagnetic fields from utility wires or appliances | Cancer |
| Pesticides (such as dioxin and DDT) | Birth injuries |
| Radon gas | Lung cancer |
| Silica (silicon dioxide) | Silicosis lung disease |
| Mold | Difficulty breathing, skin irritation, eye irritation |
| Benzene | Lymphoma and leukemia |
5 common types of toxic tort claims
- Occupational exposure, which is when a worker is exposed to a dangerous substance in the workplace.
- Home exposure, which is when your residence contains substances like mold, lead-based paint, formaldehyde or other chemicals often present in wood or carpet fibers, and other hazards.
- Environmental exposure, where harmful substances enter the body through your water or the air you breathe.
- Pharmaceuticals, which might be unintended side effects from certain medications.
- Consumer products, including cosmetics, medical devices and implants, that contain harmful chemicals.
One of the major issues in toxic tort claims is that in many situations, symptoms don’t appear for years or decades after the exposure. Also, many of these chemicals are undetectable... you can’t smell, see or taste them. You might be diagnosed with a medical condition and be completely unaware that it could be linked to an exposure you experienced several years prior.
Examples of actions that might lead to a toxic tort lawsuit:
- A company illegally dumps waste that contaminates groundwater or air in the nearby community.
- A manufacturer produces defective medication that contains a toxic substance.
- A landlord of a residential property who paints over toxic mold or who fails to remove lead paint from the home before renting it to a tenant.
- The owner of an office building is aware that there’s asbestos in employee workspaces but fails to perform remediation.
- An employer doesn’t provide adequate personal protective equipment (PPE) to employees working with toxic substances or permits workers to be present on a worksite that has toxic hazards (for example, utility or construction workers).
Toxic torts and negligence in North Carolina
In order to successfully make a toxic tort claim, you must be able to prove 3 things:
- The substance was harmful or toxic.
- You were exposed to the substance.
- The substance caused you harm or illness.
Evidentiary issues in toxic tort cases
Toxic tort claims present certain challenges that don’t exist in other types of cases.
- Causation. In some toxic tort claims, it’s very difficult to trace the source of the toxin that caused the illness or injury. To meet the elements you need to prove your claim, you need to establish that your illness was caused by a specific toxin and that there was no intervening factor. In other words, you’d have to convince the court that there was no other chemical exposure that could’ve caused your illness and that your illness could not be caused another way. This can be especially difficult with certain types of cancers because we know that genetics and other lifestyle factors can cause some cancers. It’s not easy to prove that cancer was caused by exposure to a chemical — and even if the chemical has been proven to cause that cancer, you still have to prove that it caused your cancer.
- Stale evidence. As mentioned above, some evidence can “disappear” over time. In an accident case, this might be witnesses who become unavailable because they pass away, move out of the area, or even because they simply don’t remember what happened after a lengthy period of time. This is the same for a toxic tort, and it might also mean that certain documents or other physical evidence is no longer available.
- Science. Many personal injury cases rely on scientific evidence, whether it’s about a medical condition, the effects of road conditions, weather, or any number of other types of evidence. In a toxic tort, sometimes the experts rely on studies or research to evaluate whether a substance could have caused illness. Science changes all the time as studies continue to change the current beliefs on a variety of topics.
Experts rely on statistics to determine the safety (or harm) of various chemicals. Here are 2 such factors:
- Morbidity. This metric relies on incidence (the number of new cases of a disease or condition in a certain population during a specific time period) and prevalence (the total number of people with that disease or condition in the population at that particular time).
- Mortality. This is the proportion of the population who die of a specific disease or condition, calculated as a rate per 100,000 people during a specific year.
Although these statistics can help to evaluate diseases by people’s ages, genders, or racial and ethnic groups, they can also determine how environmental exposures can present a risk for certain groups or locations of people.
BPA can be introduced into the body in your food or beverages because it’s possible for the chemical to leach from the plastic into the food. This was particularly concerning for baby bottles.
In 2011, a settlement was made in a class-action lawsuit against Philips, which manufactures Avent brand baby bottles and sippy cups. Many retailers, like Walmart and Toys R Us, no longer sell products that contain BPA.
In 2012, the FDA banned BPA in containers and bottles designed for infants and young children. You probably see “BPA-free” on many plastic water bottles, dishes, and other food storage containers around your home.
The But For test
You must show that exposure is the “immediate cause” of your injury and that you wouldn’t be experiencing harm but for toxic exposure.
This is not an easy standard to meet for pollution exposure and toxic torts. For one thing, it’s hard to prove that a health condition like cancer was caused by a toxin. You probably need to show that you have no family history of the condition and that there’s no other environmental exposure besides the one that is the subject of the lawsuit.
The But For test links the cause of an injury to the damages: “But for the defendant’s negligence, would the plaintiff’s injury have occurred?” If the answer is “no,” then you might be able to pursue a toxic tort claim.
Statute of limitations for a toxic tort lawsuit
Every legal claim has a statute of limitations, which is the deadline by which your lawsuit must be filed. In North Carolina, most personal injury lawsuits have a 3-year statute of limitations. Normally, the 3-year period begins to run on the date you were injured. For an accident, this is easy because you know when the accident happened.
But a toxic tort claim might be different.
The statute of limitations begins to run on the date of discovery, or the date when you discovered or should reasonably have discovered that your injury was related to exposure to a toxin.
For example, if you were exposed to dangerous chemicals from smokestacks owned by a manufacturer in your neighborhood, you might not notice symptoms of illness right away. If you were diagnosed with lung disease 2 years later, and the disease is believed to be caused by the emissions from the smokestacks, your statute of limitations would have begun on the day you began to notice the symptoms that led to your cancer diagnosis.
In January 2018, a toxic tort class action lawsuit was filed on behalf of the residents along the Cape Fear River in North Carolina against defendant E.I. DuPont de Nemours Company.
Cape Fear River residents claimed they were suffering extensive health problems, including colon and stomach cancers and other issues (including property damage). Residents in the affected counties had among the highest concentrations of liver disease in the country, and averages of liver, pancreatic, testicular and kidney cancers are higher in those counties than state averages.
The lawsuit alleged that DuPont illegally discharged the chemical GenX into the Cape Fear River from DuPont’s Fayetteville Works plant. It further alleged that DuPont lied to the EPA and North Carolina state officials by saying that the chemical was being sent to an off-site incinerator for disposal when, in fact, it was not.
The chemicals in question, GenX and Nafion, are almost impossible to eradicate from the water supply once it has been contaminated. These chemicals bond with pipes, animals, plants, sediments, and microbes and cannot be filtered. In order to truly eliminate the contamination and risk, the municipalities would need extensive water filtration systems, along with the removal and replacement of plumbing and appliances inside each home, which could cost thousands of dollars per household.
This class action lawsuit seeks monetary damages for physical injury, property damage, reduced property values, and costs for filtering contaminated water and air.
A judge ruled in April 2019 that the plaintiffs’ lawsuit could continue for gross negligence, negligence, private nuisance, and trespass, in addition to future medical expenses.
What to do if you suspect that you’ve been injured by a toxic substance
These are very complicated and complex cases. If you have a diagnosis that you suspect is connected to exposure to a toxin, you should call a lawyer. Your doctor might be able to diagnose your condition, but might not be able to connect it to the substance that caused it.
For example, your doctor might provide you with a cancer diagnosis based on your symptoms and the doctor’s tests. And while your doctor might accurately diagnose you with leukemia, your doctor can’t know if you were exposed (and for how long, and in what quantity) to a substance that causes it.
Your lawyer can review your medical records in conjunction with other evidence of contamination or exposure and will work with experts to link your medical diagnosis to a specific substance, its cause or origin, and who or what the defendant should be.
The other thing to be wary of is preserving evidence. That’s why a lawyer should be your first call — not a previous employer, municipal official, landlord, or company chief who you suspect is responsible for contamination or exposure. If the exposure happened many years ago (or even if it was more recent), a person who’s responsible might easily dispose of or destroy documents that might be important evidence in a lawsuit. It’s better to have your lawyer conduct discovery than for you to try to gather evidence on your own.
You might remember Erin Brockovich, the movie about a woman (played by Julia Roberts) who built a huge case against an electric company that had contaminated water and caused a cancer cluster in California in the 1990s. The reason her story was so widely known (and why it became a movie) is because it was so unusual for a person to be able to “crack” a case like that on her own.
If you need a North Carolina toxic tort lawyer, use the Enjuris law firm directory to find the right person to handle your case.
See our guide Choosing a personal injury attorney.