Categories: Product Liability

Toxic Torts Update

TASA ID: 3987

There are some new up ticks and trend lines within the areas of product liability and personal injury case work. Even for those who have been focused on one area of this specialized litigation, this summary will add to your awareness of things to come.

Asbestos-induced mesothelioma is still a source for litigation.  The wave of secondary exposures (such as "take home" exposures) has finally hit the shore and is becoming common in court rooms across the land.   More and more asbestos-induced lung cancers that are more challenging cases to prove are now being filed with great frequency. However, these cases still have not targeted the more important group of absent co-defendants, the tobacco industry. It is well known that lung cancer rates rise dramatically and disproportionately in asbestos-exposed smokers.  That combination of defendants, if it should ever come to pass, will ultimately mean that even deeper pockets will be drawn into the problem they helped to create. Soon to make an entrance are cases from asbestos diseases originating from simple non-occupational exposures in office buildings, public access buildings and shopping malls.

The general landscape of litigation targets has slowly evolved to include more health-related indoor air quality and mold issues, pharmaceutical and medical device suits, petroleum and solvent-related occupational and end-user exposures and diseases, cigarette and tobacco smoke illnesses, and a growing number of "Chinese wall board" personal injury and cost-recovery suits.

Though the governmental authorities, Chambers of Commerce, and oil industry have done a superb job of keeping the expected damages from public scrutiny, the after effects of the BP Gulf oil spill are beginning to finally be realized.   The outlook is grim for the longterm.  The affected area and the extent of environmental, food chain and business impact continues to reverberate and expand well beyond the shores of Louisiana and Mississippi.  Businesses in that region continue to fail at higher rates and property values have continued to drop even lower.  Long term Gulf fisheries and marine life have been irreparably damaged in the view of many scientists.  Large expanses of underwater marine life have sickened and vanished. 

Though the government has professed the safety of Gulf seafood, still open to question are the long-term effects on human health, reproduction, and cancer rates linked to the multitude of toxic and carcinogenic petroleum components and their bioaccumulation.  Those compounds are considered substantially contributory to, and can be causally related to such medical outcomes as leukemias, lymphomas, cancers of the liver, kidneys, gastrointestinal tract, nervous system, and possible birth defects.  The long term dietary ingestion of such compounds, even at low levels, has never been thoroughly assessed or addressed by EPA and others as it relates to this spill and its aftermath and may yet add a new wave of plaintiffs in years to come.  BP has not reportedly been honoring its promises to fully pay all of those claimants in a timely fashion as was publicly promised and expected.  Other companies and individuals may also be liable in this episode.

Suits will surely surface from the Fukushima nuclear power reactor incident. Though we haven't seen any direct linkage in U. S. courts to the post-earthquake radiation releases, it is being researched.  Sometime in the future, it is expected that predictable increases in thyroid and other cancers will become legal issues tied to the increased global radiation dispersed from this avoidable tragedy.

Laboratory personnel are also now a recognized risk group. Multi-plaintiff toxic torts from laboratory-related cases are on the upswing. Other groups at risk are finally emerging from long latency or incubation periods for disease development.  These include research chemists in petrochem and organic chemistry laboratories; float-sink coal testing chemists; forensic scientists (and others in law enforcement and fire fighting) working in less-than-safely-designed labs or in meth lab field work; and clinical chemists exposed to chemicals, radiation, and diseases.  This group even extends to high school and university science lab teachers exposed to chemicals, radiation, and asbestos.  Besides laboratory workers, we also have seen cases of instrument repair technicians developing asbestos-related illnesses from the instruments they had worked on. 

We are looking at such groups who have now developed higher risks for the development of cancers and other serious illnesses. A lack of proactive OSHA regulatory enforcement to prevent those past exposures in laboratories is finally emerging as a contributory factor in the broad industry-wide practice of using hazardous materials in laboratory equipment and other products without providing accurate warnings about the consequences or how to handle them. Those companies involved with the manufacture or sale of them are now regular defendants in many legal actions across the U.S.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

This article represents the views of the author, a chemist, risk assessor and industrial hygienist.  It is derived from his extensive legal case experience as an expert witness from 1980 to 2012.
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