Toxic Tort Litigation

AuthorJ. Alan Harrell and Barbara L. Arras
Toxic Tort Litigation
J. Alan Harrell and Barbara L. Arras
Toxic tort litigation involves single or repeated exposure to a toxic agent. Many
cases arise from long-term exposure, such as a worker’s use of particular prod-
ucts over the course of a career. Other claims relate to one-time events, such as
a release from a chemical manufacturing facility. Common issues in both types of
cases include whether the substance to which the plaintiff was exposed is capa-
ble of causing the claimed ailment and, if so, whether the exposure duration is
sufficient for causation purposes. Accordingly, both sides regularly engage toxi-
cologists, epidemiologists, industrial hygienists, and other experts. Working with
experts who are well credentialed, follow methodologies that pass muster under
Daubert, and have a knack for relaying complex concepts to juries in a persuasive
and understandable manner, all become paramount considerations.
In long-latency cases, the availability of historical documents and records
retention issues can play a role. In cases involving a more recent fact pattern, the
same electronic discovery principles that permeate virtually all modern litigation
can move to the forefront. In many scenarios, defendants tend to work cooper-
atively, whether through a formal joint defense group or more informal means,
often without the co-defendant finger-pointing that sometimes exists in other types
of litigation. Companies that routinely find themselves as defendants in certain
types of litigation may also consider it helpful to use a national coordinating coun-
sel model to help ensure consistency of their approach to discovery, expert, and
overall strategic issues, simultaneously relieving some of the burden on in-house
counsel. Although certain types of toxic tort cases can follow similar patterns,
practitioners should also remain mindful of how individual cases invariably gener-
ate unique issues that require creativity and not a one-size-fits-all approach.
The authors wish to thank Gregory J. Reda and Lillian M. Grappe for their valuable research assistance.
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258 Environmental Litigation
The discussion that follows addresses a number of issues that can arise at var-
ious stages of toxic tort litigation. After first touching on key theories of liability
and defenses, this chapter covers common discovery issues; the emergence of
personal jurisdiction as an early battleground; the role of expert witnesses and the
related importance of causation assessment; and finally practical considerations
pertaining to settlement and trial.
An overview of all possible theories of recovery and corresponding defenses in
toxic tort litigation is beyond the scope of this chapter. However, the discussion
that follows covers the highlights of several causes of action, as well as corre-
sponding defenses and trends.
Routine standard bearers such as negligence and strict liability are prevalent
theories of recovery, including in chemical products liability cases. Causation
questions are critical under these theories, of course. In the personal injury and
exposure context (and as further discussed in section V of this chapter, “Sci-
ence”), for example, much energy is devoted to working with toxicologists and
other experts dueling over whether a particular contaminant and the extent of the
plaintiff’s exposure to it can and did cause the plaintiff’s injuries. Selection of a
well-qualified expert who can convey opinions to the trier of fact in layman’s terms
therefore becomes crucial. This is made all the more difficult by long-latency cases
in which symptoms may not manifest themselves until years after exposure.
Counsel and their experts may also seek to rely on regulatory risk assessment
to bolster their causation theories. A plaintiff may point to exposure above Agency
for Toxic Substance and Disease Registry (ATSDR) minimal risk levels (MRLs) for
a particular substance, for example, while defendants may counter that risk esti-
mates and corresponding agency exposure guidelines are built upon conserva-
tive assumptions and likely overstate the actual risk. Indeed, according to ATSDR,
“[e]xposure to a level above the MRL does not mean that adverse health effects
will occur.”1 Putting similar arguments into practice, the court in Molden v. Georgia
Gulf. Corp. granted the defendant’s motion for summary judgment on lack of phys-
ical injury, commenting that according to plaintiffs’ experts “the level of phenol
released into the atmosphere was not considered harmful based on prophylactic
standards set forth by various governmental and regulatory agencies.”2 The U.S.
Fifth Circuit Court of Appeal has observed that regulatory and advisory bodies
like the International Agency for Research on Cancer, the Occupational Safety and
Health Administration (OSHA) and Environmental Protection Agency (EPA) use
a threshold of proof that is “reasonably lower than that appropriate in tort law,
which ‘traditionally make[s] more particularized inquiries into cause and effect’
1. ATSDR MRLs (June 2017),
2. Molden v. Ga. Gulf. Corp., 465 F. Supp. 2d 606, 613 (M.D. La. 2006).
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Toxic Tort Litigation 259
and requires a plaintiff to prove ‘that it is more likely than not that another individ-
ual has caused him or her harm.’”3
The potential for toxicogenomics to play a growing role in the causation
debate also bears mention. Toxicogenomics involves the analysis of how partic-
ular substances affect genetic material. While a detailed discussion of the subject
is beyond the scope of this chapter, suffice it to say that proof of certain genetic
markers (1) may indicate a plaintiff was predisposed to develop a particular dis-
ease without regard to exposure to the substance at issue, (2) could instead be
characteristic of exposure, or (3) could indicate susceptibility to developing the
disease from exposure. Juries could potentially be receptive to such individualized
causation explanations, although this field is still developing and the correspond-
ing analysis could be cost prohibitive in some cases.
With the understandable emphasis on causation, litigants must still be mindful
not to lose sight of exactly what the plaintiffs contend the defendants did wrong,
no matter what label is placed on the theory of recovery. In other words, in a
chemical products liability case, is the claim that the product was unreasonably
dangerous for lack of an adequate warning? If so, why was the warning insufficient?
In cases involving claims that a product contained carcinogens, but was not so
labeled (such as claims that products with hydrocarbon solvent ingredients may
contain benzene as a contaminant), plaintiffs may attempt to demonstrate that the
federal Hazardous Communication Standard required certain carcinogen warnings
because the product contained more than 0.1 percent of the carcinogen at issue.4
In that event, the parties may focus on company or raw material supplier records
regarding product content and testing, as well as relevant literature on the typical
composition of the substances at issue, such as the percentage of benzene poten-
tially found in toluene during different time periods.
Plaintiffs who are able to prove exposure but not physical harm may pursue
medical monitoring claims, arguing that even in the absence of any current man-
ifestation of physical injury, they are entitled to compensation for future medical
monitoring to make an early diagnosis of exposure-related disease. In Meyer ex rel.
Coplin v. Fluor Corp., the Missouri Supreme Court described a medical monitoring
claim as seeking “to recover the costs of future reasonably necessary diagnostic
testing to detect latent injuries or diseases that may develop as a result of exposure
to toxic substances.”5 Whether such damages are recoverable without manifesta-
tion of physical injury varies from state to state. In Meyer, for example, the court
found that such damages are recoverable under Missouri law, while noting that it
was not creating a new tort. Rather, it was simply recognizing a compensable item
3. Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th 1996) (quoting Wright v. Williamette Indus., Inc., 91
F.3d 1105, 1107 (8th Cir. 1996)); Milward v. Acuity Specialty Prod. Grp., Inc., 969 F. Supp. 2d 101, 110 (D.
Mass. 2013), aff’d sub nom. Milward v. Rust-Oleum Corp., 820 F.3d 469 (1st Cir. 2016).
4. See Hazard Communication, 29 C.F.R. § 1910.1200.
5. Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 716 (Mo. 2007); Elsea v. U.S. Eng’g Co., 463
S.W.3d 409, 416–17 (Mo. Ct. App. 2015) (citing Meyer, 220 S.W.3d at 712).
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