Movies like “Erin Brockovich” and “A Civil Action” brought the stories of class-action environmental torts to the masses. While some elements regarding the difficulties of proving such cases are represented, these are Hollywood representations and liberties were taken. In reality, plaintiffs and the attorneys who represent them have a number of issues and roadblocks in litigating an environmental tort claim.
It wasn’t until the 1970s and 1980s that the federal government began to pass laws regulating pollution, and forcing those who pollute to take responsibility for their actions. These laws may sound familiar: The Clean Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act.
Since the establishment of these laws, environmental tort law has evolved to cover a variety of substances: hazardous workplace chemicals, asbestos, and even cigarettes and breast implants. Attorneys who litigate environmental tort cases have learned much from the recent successes in tobacco and breast implant litigation and have begun applying the tactics used in those cases to environmental torts.
Another major roadblock in the successful litigation of environmental tort cases is that injury may not appear for months or years after the exposure. A diagnosis may not follow for even longer after this, and this can cause both attorney and their clients to face difficulties in establishing causation. Of course, causation is one of the primary details that must be proven in any kind of civil litigation. When it comes to toxic exposure, causation is often the most difficult aspect of the case to prove.
In the simplest terms, a plaintiff must establish causation by showing evidence of:
● Exposure to a “specific product” that is manufactured by a particular defendant
o On a regular basis or over an extended period of time
o In proximity to where the plaintiff lived or worked
● Show that it is probable that the environmental toxin caused the injuries
One of the barriers affecting causation is that the defendant’s attorneys are often able to get scientific evidence brought forth by the plaintiff(s) excluded from evidence based upon the standards for scientific evidence created by the Supreme Court. This evidence may be excluded even though it is accepted by the scientific community at large.
Another roadblock is that many times the plaintiffs are people with few resources, litigating against a corporation with a team of attorneys. This also brings to mind the kind of tort reform being suggested that would make the losing litigant responsible for legal costs associated with the case. If such tort reform were passed, it would prevent many people from filing environmental torts.
Toxic tort cases can be some of the most difficult to prove, with many barriers in place that clearly skew favor towards the corporations. However, recent substantial successes such as the cases involving asbestos and cases involving tobacco companies bring to light the fact that toxic tort litigation is likely to continue to grow, both in those practicing environmental tort law and those seeking relief from injury.