Toxic Substances Information Center
Challenges in a Toxic Tort Case
As a plaintiff in a toxic tort case, you must prove that it is more likely than not that the defendant caused your injuries. Because of the unique nature of many toxic tort claims, this can be a difficult task, even if you are suffering from a serious illness. Contact an experienced personal injury attorney at James F. Humphreys & Associates, L.C. in Charleston, West Virginia to learn more about the available remedies for your injury from a toxic substance exposure.
Causation
The most difficult element to prove in any toxic tort case is causation. To win a toxic tort case, you must be able to show that the defendant's acts or omissions are the proximate cause of your injuries. Proving this can be challenging because:
- You may not be able to identify the exact substance that caused your injury. Many toxic substances create symptoms that can be attributed to a number of causes, and not one specific disease or illness. Even if you have a known disease, like cancer for example, there may be a number of potential causes for the disease (such as heredity) besides exposure to the toxin, making it difficult to conclusively prove a causal link to the exposure.
- You may not be able to identify a particular party responsible for your injury. The party could be deceased, the company could have gone out of business, or more likely, the injury could have been caused because of the acts of several parties. In response to this problem, some courts have begun to accept alternate theories for liability that permit plaintiffs to name groups of defendants, and in some cases, entire industries, when it cannot be known which party is primarily responsible for the injuries.
Unlike many other tort cases where the plaintiff can testify about his or her injury and explain how the defendant caused it, in toxic tort cases, plaintiffs have to rely on the testimony of scientific and medical experts to explain what their injuries are, how they occurred and why the defendants are responsible.
Latency Periods
In addition to causation problems, the latency period between when exposure occurred and when symptoms of the disease or illness become known can be a considerable amount of time. For example, in cancer cases, the latency period between exposure and detection of the disease can be as long as 40 years. Such a long period of time between the two events can make it easier for defendants to argue intervening or contributing factors caused the disease and not their acts. Additionally, the latency periods can make it more difficult to identify and locate defendants.
Characteristics of Toxic Substances
The general characteristics of hazardous substances also can make it difficult for a plaintiff to establish the extent and duration of exposure. Many hazardous substances are invisible, tasteless and odorless, so an injured party may be unable to pinpoint when exposure occurred, the amount of exposure or whether the exposure was isolated or recurring. Unlike many other types of personal injury cases in which the cause and effect of the injury is immediate and known, in toxic tort cases, the cause and effect are much more difficult to ascertain.
Conclusion
For all of these reasons, if you think that you have been injured by a toxic exposure, it is vitally important to find a toxic tort lawyer to advise and represent you. Without experienced representation, you may be unable to recover compensation for your injuries. Contact James F. Humphreys & Associates, L.C. in Charleston, West Virginia to speak with an experienced toxic tort attorney about your available options. There are limits on the amount of time you have to file a lawsuit, so do not delay in seeking legal advice.
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