toxic tort

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A toxic tort is a subcategory of torts involving injuries to plaintiffs caused by toxic substances. Such cases are often brought under the doctrine of product liability. While toxic tort cases traditionally dealt with injuries arising from substances like Agent Orange and asbestos, toxic tort cases can also involve drug or pharmaceuticals, tobacco, and fossil fuels. To sustain a claim for damages in a toxic tort action, a plaintiff must show that: (1) he or she was exposed to a disease-causing agent of substance; (2) the defendant is legally responsible for the plaintiff's exposure; (3) the plaintiff has suffered or is currently suffering from the exposure; and (4) the plaintiff's injury was proximately caused by exposure to the disease-causing substance. 

Toxic tort cases may involve particular showings of causation. First, some jurisdictions, such as the District of Columbia, require that a plaintiff show both general and specific causation. That is, the plaintiff must show both that the toxic substance in question is harmful to people generally, and that the substance caused the plaintiff's specific injury. Expanding on this requirement, the Eleventh Circuit has held that a plaintiff must also demonstrate that level of exposure that is hazardous to human beings as well as the plaintiff's level of exposure. As a result, because of the technical nature of toxic torts, expert testimony is not only commonly used, but even required in some jurisdictions for such cases. 

Moreover, because of its importance, expert testimony is often a point of contention in toxic tort cases, and defendants will challenge the credibility of the plaintiff's expert witnesses. In deciding such disputes, courts follow a four-part test, known as the Daubert standard, to determine if the expert's opinion meets the standard of "scientific knowledge," and is therefore admissible. Under this test, the court considers whether: (1) the theory or technique can be tested; (2) the theory or technique is subjected to peer review and publication; (3) there is a known or potential rate of error; and (4) there is general acceptance within the scientific community. 

Because toxic torts, especially those that arise from environmental contexts, may affect a large number of people, they are sometimes subject to class actions and referred to as "mass toxic tort" cases. Indeed, even individual actions involving hazardous workplace exposure often involve multiple plaintiffs. 

[Last updated in October of 2021 by the Wex Definitions Team]