Tort litigation

Resolution of action items also has a legal dimension. In the US tort litigation system, there is an accepted concept that once management decision makers have knowledge of a hazard, there is an accompanying responsibility and duty to act to address that hazard. US OSHA enforcement representatives also apply the concept of repeat willful, in cases where there has been a previously identified hazard and the risk has not been reasonably mitigated. 

The nature of tort litigation precludes systematic empirical investigation of the effect of legal rules on behavior. Not all accidents result in litigation. In addition, not all litigation actually stems from accidents some cases stem from nonaccidents (i.e., fraud). Finally, not all litigation results in a court decision. 

Toxic tort litigation has several distinguishing characteristics, including issues of exposure, latency, prospective damages, causation, risk, and complex challenges involving expert testimony and multiplicity of parties. 

In toxic or environmental tort litigation, the plaintiff must prove that the defendant s product was a cause or a substantial factor contributing to her harm. In many cases, however, the evidence of direct causation is difficult to acquire. 

The standards for admissibility of expert testimony to prove causation clearly will continue to impact the future of toxic tort litigation. Therefore, an understanding of the Daubert decision and the continuing debate over the admissibility of expert scientific or medical testimony will benefit anyone dealing with toxic or environmental tort issues. 

By contrast, the critics of Frye proclaim that the test should be abolished because it bans useful groundbreaking studies or theories from the courtroom. Plaintiffs have argued that the people who have been harmed by exposure to toxic substances should not have to wait for proof of others being similarly hurt before they can receive relief. This argument is especially significant in the context of toxic tort litigation, where anecdotal (case) reports have been cited by some experts as evidence that a toxic substance causes a specific type of injury. 

Defendants in toxic tort litigation can and do assert a host of defenses in order to avoid liability. Some of these defenses substantively negate a specific cause of action, some limit claims against particular defendants, some arise in the law of procedure, some derive from the plaintiff s culpable conduct, and some arise because public law obligations can preempt the operation of common law. This chapter will conclude with brief descriptions of some of the important defenses that have been asserted in toxic tort cases. 

As noted in previous editions of this chapter, the law of toxic torts continues to develop. Traditional legal rules continue to be strained and stretched. The tension created by the juxtaposition of scientific uncertainty and unsettled law continues to impact toxic tort litigants. The emerging interface of genetic and environmental forces creates new challenges for the proof of causation and injury, and further complicates emerging concepts of latency between exposure and either onset or manifestation of injury. 

Black B and Lilienfeld DE (1984) Epidemiologic proof in toxic tort litigation. Fordham Law Review 52 732. 

In 2001 (the most recent year for which data are available), U.S. industry spent more on tort litigation than on research and development. 

Adoption of the basic precepts in such standards has many benefits and may protect users of the standard, while furthering the interests of affected businesses. However, the far-reaching implications of such standards in OSHA enforcement actions and in tort litigation also must be recognized. It is also essential to focus on the fact that such standards are voluntary, until such time as they are incorporated by reference into a binding regulation. Even reference to the ANSI ZIO standard... 

In Connecticut Coastal Fishermen s Association v. Remington Arms Co., Inc., 989 F.2d 1305 (C.A.2d 1993) the Connecticut Coastal Fishermen s Association sued Remington The Connecticut Coastal case pitted two user groups against each other in environmental toxic tort litigation. It was based on the 1976 Resource Conservation and Recovery Act (RCRA) which requires the ERA to ... 

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