“Toxic tort suits” refer to personal injury cases that allege a harm, generally a physical injury, due to exposure to a toxic substance.[1] Toxic tort suits can cover a wide variety of toxic exposures, including those from toxic products, toxic fumes or materials in a workplace, and toxic discharges into the environment.[2] The latter can involve accidental and sometimes intentional releases of toxic or noxious substances into the air, into water bodies and wetlands, or onto land.
At Milling Benson Woodward L.L.P., our attorneys usually are associated with the defense of these claims, as oftentimes the issues of causation and actual damages remain a very real issue particularly when there are more than one possible source of a release; an employee has been exposed to toxic substances in a number of workplaces; a toxic substance occurs naturally; or, a toxic substance pre-existed a particular event or exposure.
One important area of toxic torts law involves mass torts with multiple claimants which often result in “class actions.” These are suits brought by a number of plaintiffs alleging similar injuries or damages as a result of a single event or a series of related events. In Louisiana, to constitute a “class,” representative plaintiffs are required to prove, pursuant to La. C.C.P. art. 591(B)(3), that “common questions of law or fact predominate over individual issues and that the class action is superior to any other method for resolving the controversy fairly and efficiently.[3] They also must establish the following:
- “numerosity”: the class is so numerous that joinder of all members is impracticable;
- “commonality”: there are questions of law or fact common to the class;
- “typicality”: the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) “adequacy of representation”: the representative parties will fairly and adequately protect the interests of the class; and, (5) “ascertainable criteria”: the class is or may be defined objectively in terms of ascertainable criteria.[4]
Our attorneys have successfully defended companies and their insurers in numerous class actions involving releases and spills of toxic or noxious gases and liquids. These include releases or spills of gasoline, naphtha, benzene, oil, natural gas and naturally occurring radioactive materials (“NORM”) and/or technologically enhanced radioactive materials (“TERM”). The firm’s attorneys have also successfully defended the state of Louisiana from claims for oyster lease damages resulting from freshwater diversion coastal restoration projects.[5]
Finally, Milling attorneys have also defended numerous individual claims for workplace exposure to toxic substances. These most often have involved silica or asbestos exposure. The latter often result in manifestation of diseases such as asbestosis and mesothelioma occurring long after exposure, requiring defense attorneys with experience in the investigation of the causes and symptoms in such cases.
As attorneys experienced in handling toxic tort cases, we understand both the science and the law including the burdens of proof and available defenses that govern occupational and environmental exposure to harmful chemicals. Please call to schedule a consultation to discuss your toxic tort case.
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