Legal Issues and Toxic Injury

A toxic injury lawsuit involves allegations by one or more plaintiffs that they were injured due to exposure to chemicals.  The defendants in these “toxic tort” cases might be employers (workplace injury), business and industry (environmental contamination), or manufacturers or suppliers of consumer products (injury from exposure to a product).  Depending on the type of injury, the case could be based on negligence, products liability, premises liability, or some other legal theory.  Regardless of the theory of the case, seeing a toxic injury lawsuit from the initial consultation with an attorney to a jury verdict is a long and difficult process.  It may require the hiring of several expert witnesses and the addition of other plaintiffs to form a class action suit.  This Help Center article offers information on what makes a “toxic tort” different from other personal injury cases, steps in the legal process, and tips on hiring an attorney to pursue your claim.


Proving a Toxic Injury Case

Toxic injury cases are difficult and expensive to prove.  The contingency fee system offers great opportunities for people who would otherwise not be able to hire a lawyer to receive legal representation.  The lawyers in these circumstances will only be able to get reimbursement for litigation expenses and fees for their services based on the amount of damages awarded (if any at all).  Therefore, personal injury lawyers and law firms must be aware of the economic realities of a case and decide whether they can afford to take it.  Even if the lawyer does take the case, he may have to open lines of credit or borrow money to pay for litigation expenses, even if there is no guarantee he will ever be paid.  For these reasons, there are several preliminary questions that you and your lawyer may discuss before he agrees to take the case:

Why do you think your condition is related to the substance?  This is a basic question, but it can also provide insight to how strong the case is.  For example, if you became ill after a chemical explosion at the factory where you work, causation will probably be easier to prove.  But if you have been having health problems for years and think they might be linked to your drinking water, causation could be more difficult to prove.

How serious is the damage?  Because toxic injury cases are expensive to litigate, there must be potential to recoup enough costs to both pay your attorney’s fees and costs and yourself.  If your health problems are minor, they are unlikely to result in a large award of damages.

What do experts in the field say about the substance?  If expert witnesses have already testified that a certain kind of injury is linked to a particular substance, this could be helpful to your case.  In addition to experts, your attorney may also research what government agencies have to say about the chemical and what the material safety data sheets indicate.

Are there other cases involving the same substance?  This is important for two reasons.  First, if a link between the chemical and the condition has already been established in another case, it could be easier and less expensive to do so in a new case.  Second, if other cases are ongoing, then there could be potential to join those cases and therefore share litigation resources among clients and lawyers.

Is a class action lawsuit possible?  Class action suits can make litigating an extremely complex case possible, because lawyers and clients share resources in order to achieve the same goal – a favorable verdict. However, the courts must designate a suit as a class action, and there is a complex set of legal rules regarding this designation.  There must be enough people affected by the injury to make a class, and the people in the class must have a common issue.  For example, a neighborhood’s contaminated drinking water could give rise to a class action suit because the people would have in common that they live in the same neighborhood and were injured by chemicals in the water.


Steps in the Legal Process

Once a toxic injury case is initiated, most of the costs will be spent hiring several expert witnesses.  The case will probably require a chemical expert, an epidemiology expert, a medical expert who can testify that the link between the chemical and the injury could be made generally, a medical expert who can testify that your condition can be linked to the chemical, and an industrial material expert, if necessary.  Other costs associated with a major toxic injury lawsuit are travel to and from depositions, document requests (sometimes receiving millions of pages in response), and hiring a court reporter to document depositions.  Much of the pre-trial process will consist of negotiation between the plaintiff’s attorneys and the attorneys for the defendant (which might be a large corporation with vast resources to defend a lawsuit).  If the attorneys cannot come to an agreeable settlement, the case will eventually end up at trial.  The entire process, from initial consultation with an attorney to receiving a verdict, can take years.


Finding the Right Attorney

Because of the complex issues associated with toxic injury cases and the resources needed to litigate them, it is important to find an attorney who has the resources to properly try the case.  Even if a small firm or solo practitioner initially takes the case, a larger law firm might need to be brought in at some point because of its financial and staff resources.  In addition to access to resources, the right attorney should also have experience in toxic injury litigation.

It is important to find an attorney for your case as soon as practicably possible after the injury.  First, you do not want to lose your chance to be compensated for injury because the statute of limitations for your claim has expired.  Second, there may be valuable evidence and witness statements that can be collected, the sooner the better.

Read the first article:  How to Stay Safe and Avoid Toxic Injury

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