TOXIC TORTS

The area of “toxic torts” litigation encompasses a wide variety of issues, often including the complexities of “mass tort” litigation, products liability, and environmental actions. The term “toxic torts” is often misunderstood. Originally, this term was used in reference to chemical wastes being released by landfills and treatment facilities, with plaintiffs claiming injuries and property damages because of exposure to this “toxic soup.” However, the term has evolved and now refers to an alleged harmful exposure to chemical products, pharmaceutical drugs, mold, etc., as well as exposure to environmental contamination and industrial plant emissions. PCBs, styrene, benzene, silica, asbestos, polyurethane foam, latex, and countless other materials and products have been the subject of “toxic torts” actions. The plaintiffs’ bar is constantly searching for the “new” asbestos material, which will generate thousands of cases nationwide, involving hundreds (if not thousands) of potential defendants (and their insurance carriers).

Often, “toxic torts” actions involve claims of “latent” injuries, which are alleged to have developed years after the use of, or exposure to, the substance in question. Among the claims that are somewhat unique to “toxic torts” litigation are actions for “medical monitoring” and the potential application of a “two disease” rule.

The defense of “toxic torts” actions is usually very “fact intensive” and requires the development of exposure histories, exposures to other products and materials that may account for the injuries at issue, detailed medical histories, sales and product histories, the mechanism of medical causation, defending against such expert assertions as the “one hit” theory, the use of “holistic” treatments that are not accepted by the medical community and other “voodoo” medical theories and opinions expressed by plaintiffs’ experts.
The insurance coverage issues pertaining to “toxic torts” claims often involve unique issues, such as determining the “trigger” of coverage. The “continuous trigger” doctrine is used by many courts, especially with claims involving latent diseases and long periods of potential exposure. Often, the courts also have created apportionment systems/schemes, to spread the obligations among all insurers who find themselves “on the risk.”

As mentioned under the Mass Tort and Complex Litigation heading, McCormick & Priore, P.C.’s experience in the “toxic tort” field is extensive, ranging from claims by a single individual to claims being asserted on a nationwide basis.

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