This paper was originally presented at the
Southern Aerosol Technical Association (SATA) Fall Meeting.
plaintiffs also represent unnamed persons who are similarly situated).
Plaintiffs may allege actual injury; fear or increased risk of
future harm; a need for medical monitoring; emotional distress;
or diminution in property values.
Some toxic tort cases are well-founded, others are frivolous. In
between, most cases turn on a courtroom debate about liability,
exposure, “general causation” (the ability of a chemical to cause
the kind of injury alleged) and “specific causation” (the actual
cause of the plaintiff’s illness). This debate typically takes the form
of a battle of the experts, in disciplines unfamiliar to lay jurors
such as toxicology, epidemiology, product design, human factors,
chemical engineering or industrial hygiene. Trial often pits novel
theories against mainstream science.
It’s easy to allege injury from chemical exposure. Plaintiffs
typically rely on simplistic logic that may be appealing in our era
of chemophobia: the plaintiff is ill, his disease has been “linked”
to a chemical in the scientific literature, the defendant knew or
Few surprises can disrupt a business
more than a major lawsuit, and few
lawsuits can be more distracting or
more challenging than a toxic tort
suit. Every step of the way, your company’s
reputation and brand may be at stake—not
only in the courtroom but also with customers,
news media, directors, shareholders and
other industry members. Understanding
the legal issues and the larger playing field
can help you protect your product and your
company if and when lightning strikes.
What are toxic torts?
Toxic tort lawsuits allege that exposure to hazardous chemicals
has injured the plaintiffs or their property. These suits can arise
in each of the three ways that people encounter chemicals: in
consumer, occupational or environmental
settings. Plaintiffs may
allege negligence in the design
or manufacture of your product,
failure adequately to warn of any
hazards, misrepresentation of the
product or breach of express or
implied warranties. Even absent
any fault on your part, you may
be sued on the ground that your
product is allegedly defective and
inherently dangerous. If chemicals
from your manufacturing plant
escape into the environment,
you may be sued by neighboring
residents or businesses.
Toxic tort cases come in all
sizes. They may be single-plaintiff
cases, “mass torts” (naming
perhaps hundreds of plaintiffs) or
class actions (in which the named
14 Spray February 2018
Protecting your product
and your company
Toxic
Torts
CLIFFORD J. ZATZ
Crowell & Moring LLP