Toxic Tort Litigation

• Pages: 281-320

CHAPTER 6

281

Toxic Tort Litigation

JOHN P. MANARD, JR. AND J. ALAN H ARRELL

I. Introduction

At its core, toxic tort litigation involves the exposure of people, ani-

mals, or property to toxic agents. Yet, that simple statement, though

accurate, fails to capture the scope of the dynamics such cases gen-

erate in our legal system once set in motion. This chapter, in neces-

sarily summary form, identifies and addresses the key issues.

While many types of companies find themselves as defendants

in toxic tort litigation, the most typical defendants come from the

petrochemical industry, engage in some form of manufacturing

that utilizes toxic substances, or are involved in the transportation

or marketing of such substances. Transportation accidents, plant

accidents, air emissions, and underground seepage give rise to

some of the cases, while others are premised on theories of prod-

uct liability.1

Common litigation characteristics and dynamics include large

numbers of plaintiffs, oftentimes in multiple locations, a heavy em-

phasis on causation (with a particular emphasis on issues of sci-

ence), activities that have spanned many years, and the evidentiary

issues (such as precise exposure measurements) inherently gener-

ated by such a span of time. The length of time involved also may

create issues regarding statutes of limitation. Cases can involve ge-

282 CHAPTER 6

ography as simple as the immediate area of an accident or as expan-

sive as multiple states and multiple sites.

Science looms large in these cases virtually every time. Work-

ing with experts in diverse scientific fields is the norm. Dealing with

admissibility is always an issue, and it often is dispositive, with the

courts having fashioned an array of tools to sort out good science

from bad.

At the risk of stating the obvious, cases involving large num-

bers of plaintiffs can be dangerous from the standpoint of financial

exposure and, generally, as a consequence, are of material impor-

tance to the companies that get drawn into them. These cases are

especially problematic because of the difficulties inherent in the true

comprehension of complex issues concerning multiple plaintiffs in

trials that inherently are long. That dynamic works significantly to

the disadvantage of defendants. For lawyers, these cases typically

involve dealing with multiple complicated issues simultaneously and

in concert with many other lawyers, sometimes in multiple courts.

Though commonly encountered issues are addressed in this chap-

ter, the one certainty is that an individual case will generate its own

unique issues and dynamics and will require creativity and flexibil-

ity by all involved.

II. Theories of Liability and Defenses

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 touches on the highlights of

some of the more prevalent causes of action beyond ordinary neg-

ligence, strict liability, and nuisance, as well as corresponding de-

fenses and trends.

A. Pleading Requirements

It bears noting at the outset that the U.S. Supreme Court’s recent

decision in Bell Atlantic Corp. v. Twombly2 arguably has altered the

landscape surrounding federal notice pleading. The Court granted

certiorari to consider the proper pleading standard for alleging an

antitrust conspiracy through parallel conduct, though the implica-

tions of the decision extend beyond the antitrust realm. The Bell

Atlantic Court recited the well-known mantra that “dismissal for fail-

Toxic Tort Litigation 283

ure to state a claim is not proper unless it appears beyond doubt that

the plaintiff can prove no set of facts which would entitle him to

relief,” and then stated, “this famous observation has earned its re-

tirement.”3 It continued, “[t]he phrase is best forgotten as an incom-

plete, negative gloss on an accepted pleading standard: once a claim

has been stated adequately, it may be supported by showing any set

of facts consistent with the allegations in the complaint.”4

A plaintiff now must demonstrate, through the allegations in the

complaint, more than the mere possibility of recovery and instead

show the plausibility of recovery. To comply with Federal Rule of

Civil Procedure 8(a)(2)’s pleading requirements and survive a Rule

12(b)(6) motion to dismiss, a plaintiff must allege “more than labels

and conclusions, and a formulaic recitation of the elements of a

cause of action will not do. . . . Factual allegations must be enough

to raise a right to relief above the speculative level.”5 In the context

of alleging conspiracy under Section 1 of the Sherman Act, for ex-

ample, the Court stated that such a claim “requires a complaint with

enough factual matter (taken as true) to suggest that an agreement

was made.”6 Facts must be pled that “are suggestive enough to ren-

der a § 1 conspiracy plausible. . . .”7

The Bell Atlantic Court’s emphasis on the need for a certain

degree of specificity in pleading before allowing potentially large

and costly antitrust actions to proceed is a theme that also could

ring true in toxic tort litigation. Given the breadth and expense of

such litigation, particularly when multiple plaintiffs and defendants

are involved, it is not difficult to conceive of courts using Bell At-

lantic as a basis for exercising a gatekeeper role, insisting that plain-

tiffs set forth more of a factual basis for their allegations before

allowing cases to get off the ground. Plaintiffs’ counsel may opt to

go the extra mile in detailing factual allegations to guard against

this possibility, or may find courts open to allowing the amendment

of pleadings when such detail is lacking. Of course, it also is pos-

sible that courts will not interpret Bell Atlantic as working a sea

change in the broader pleading landscape, thus reducing its practi-

cal impact on practitioners.8

B. Overview

Turning to specific theories of recovery, while traditional staples

such as negligence, strict liability, and nuisance will continue to