A mass tort can involve a single cause rather than a single incident. Thus, cases involving exposure to cigarette smoke are considered a mass tort even though there was no single incident.
As indicated previously, most mass tort litigation involves toxic torts. Thus, we'll focus on toxic tort rules in this discussion, but the rules apply generally to any mass tort.
Toxicity. One of the more difficult questions for business owners and others who face possible toxic tort liability is what constitutes a toxic substance. The dictionaries define "toxic" as poisonous. The Toxic Substances Control Act says that a toxic substance is any substance that is likely to result in injury to health or to the environment, which is quite a broad definition.
Today's widely accepted substance could be tomorrow's poster child for toxic tort lawsuits. At one point not too long ago, cigarettes, benzene, and asbestos were all widely used and widely accepted. Today, we accept that they all are harmful to human health.
The uncertainty of what constitutes a toxic substance can make assessing possible liability quite difficult. One theory gaining momentum in recent years is called microbiological contamination, or, more colloquially, the sick building syndrome. The idea is that mold contamination in poorly ventilated buildings causes health problems to those who work in the buildings. It's of concern to employers because it extends potential liability to those who wouldn't otherwise have thought that they had toxic tort liability exposure.
The Occupational Safety and Health Administration defines health hazard as any chemical for which there is statistically significant evidence that acute or chronic health effects may occur in exposed employees. Thus, an employer with sick building syndrome could face worker's compensation exposure from employees and toxic tort exposure from non-employees who use the building regularly, such as janitors, delivery people, independent contractors, cafeteria workers, etc.
Liability theories. In order to establish liability, injured parties have used a variety of legal theories. The most common one is probably under product liability. In this theory, the injured party alleges that the other party (makers, handlers, or users of the toxic substance) is strictly liable because it engages in an abnormally dangerous or ultra-hazardous activity. The injured party doesn't have to prove that the other party was negligent or careless; he or she need only prove that the toxic substance caused the injury complained of. In strict liability cases, the conduct of the injured party is not an issue. There is no balancing of fault in these cases; if the toxic substance caused the injury, the injured party is entitled to be made whole again.
Another theory used in toxic tort cases is trespass. In this theory, the injured party alleges that the other party caused injury by allowing a toxic substance to trespass onto the injured party's property. Ground water contamination cases are one example. Trespass cases can be based on intentional conduct or negligence, which means that the injured party may be entitled to punitive damages in addition to the damages that make the injured person whole again. It also may means that the injured party must prove that the other party's actions were negligent or careless in allowing the trespass. If the other party was not negligent or careless, the injured party generally cannot recover under this theory. Also, the injured person must have a possessory interest in the property in order to bring suit. Thus, only the owners or rightful possessors of the property can sue for trespass.
If the injured party is able to establish negligence or carelessness, he or she may be entitled to recover the cost of all medical care, rehabilitation costs, lost wages, loss of earning capacity, loss of enjoyment of life, and pain and suffering.
A third theory is nuisance, which involves an interference with the injured party's use and enjoyment of property. Nuisance might be used where there is an interference with the use of property but no actual trespass. An example is a toxic substance that produces a foul odor. Under nuisance law, the injured party must prove that the other party's conduct was unreasonable under the circumstances.
There are both public and private nuisance claims. Public nuisance claims involve interference with public lands or with dangers to public health. Not just any member of the public can sue, however. The injured party must show that he or she has a different injury than that suffered by the general public.
Some toxic tort cases involve simple negligence, which is the failure to exercise reasonable care. Simple negligence can be difficult to prove, especially where the dangers were not known or understood at the time the injured party was exposed to the toxic substance. An example of where negligence works best is where statutes establish standards for care, such as with statutes for handling chemicals, and the other party has violated those standards.
Defenses. Those sued for committing a toxic tort may have several possible defenses available to them. One is the statute of limitations. A statute of limitation is the time within which a lawsuit must be filed. If an injured party files suit after the time has expired, the suit will be dismissed. The defense arises in toxic tort suits relatively often because of the lapse in time between when a contamination takes place and discovery of the injury.
Some states provide that the statute of limitations begins to run from the date the injury occurred. Others provide that it begins to run from the date the injury is discovered. In Illinois, the statute of limitations for strict liability cases is two years from the date of injury.
Probably the strongest defense available to those who have been sued for committing a toxic tort is causation - the idea that the injuries were not caused by exposure to the toxic substance. Causation is still the biggest hurdle that injured parties have to overcome in toxic tort cases.
In some cases, it boils down to a battle between expert witnesses. The injured party's attorney will consult with toxicologists and others specialists to establish that the injuries were caused by exposure to toxins. Meanwhile, the other party's attorney will consult with toxicologists and other specialists to establish that the injuries were not caused by exposure.
The use of expert witnesses may give rise to other possible defenses, after the experts have examined the injured party or parties. For example, it could give rise to an argument that the injuries were caused by something other than the toxic substance or that the person isn't, in fact, injured.
Class actions. In most cases, toxic exposure affects a lot of people. Where many people are harmed, they often join together in a class action lawsuit (for more on class actions, see
Exposure. If someone is exposed to a substance, but shows no ill effects, can the person join the class action lawsuit and recover damages? The prevailing view today seems to be that they can join the suit on the theory that they have been damaged, even if only at a molecular level. Other courts have reached the opposite conclusion.