Trial Magazine

Environmental and toxic torts affect communities of color and low-income communities at higher levels for many reasons.¹ However, historically, these same people have faced an uphill battle when trying to hold negligent corporations accountable. For instance, in Bean v. Southwestern Waste Management Corp., members of a predominantly Black neighborhood in Houston applied for a preliminary injunction pursuant to 42 U.S.C. §1983 to stop a solid waste facility from being located near a high school that lacked air-conditioning.² The federal district court denied the preliminary injunction, finding that the plaintiffs did not show a substantial likelihood of proving that the decision to site the facility near the high school was discriminatory.³ And in Chester Residents Concerned for Quality Living v. Seif, residents in Chester, Pa., sued under Title VI of the Civil Rights Act of 1964 to stop the siting of a solid waste facility in their community, alleging that they were subject to disparate impact.⁴

In 2014, the city of Flint, Michigan, switched its water source from Lake Huron to the contaminated Flint River, exposing residents to unhealthy levels of lead.⁵ Individual claims, class action claims, and criminal complaints were filed.⁶ In 2020, the state of Michigan agreed to a $600 million settlement with the residents of Flint, which was approved in March.⁷

Whether on behalf of an individual, a neighborhood, or a group of people, these cases present many challenges—but they are fundamental to righting wrongs. Here are some tips to get started when handling toxic tort claims.

The Basics

Toxic torts arise in various scenarios, but a common theme is that they start with “exposure” to a substance. That exposure can be through polluted air, land, and water, as well as through toxic products. As in the cases briefly described earlier, minority and lower-income communities may be exposed to toxins in air, soil, and water due to waste management sites and other industrial facility sites near their homes.⁸ Companies often locate their facilities in or near minority communities resulting in “hazardous waste sites, polluting industrial facilities and other locally unwanted land uses [that] are disproportionately located in nonwhite and poor communities.”⁹ Siting decisions often are made based on the path of least resistance—that is to say, poor Black and brown people often have fewer resources and less political clout to put up a fight to siting decisions.

Toxins also have been found in various personal care products. In the Black community, for example, many individuals, especially women and girls, grew up using certain cosmetics and other personal care products, such as Johnson’s Baby Powder and Shower to Shower¹⁰ and hair relaxers and straighteners.¹¹

Some toxic tort claims are brought on behalf of children who are exposed to hazardous materials through their parents. This can happen, for example, when the mother is exposed to pesticides due to living in an older home or when there is repeated exposure to organophosphate insecticides. This can disproportionately affect communities of color when the home is not maintained by landlords in depressed areas.¹²

Many toxic tort cases also involve people who were exposed to chemicals in the workplace. For example, some of the cases involving the glyphosate-containing weed killer Roundup allege that exposure to this product caused the plaintiffs’ cancers.¹³ There even have been cases when parents may carry the toxins home from work and expose their families. A class action on behalf of California agricultural workers against Dow Chemical and its successor alleges that over 100,000 homes of workers in California are contaminated with the insecticide chlorpyrifos, harming the workers’ children.¹⁴

Initial Intake

Often your clients will not know exactly when they were exposed to the toxic substance or the amount or dose to which they were exposed. Do a thorough intake to determine which claims are viable at the start.

Typically, there are three types of clients: people who were exposed to a toxic substance and have an injury linked to that exposure, those who were exposed to a toxic substance but who have not yet shown an injury or symptoms, and those who have an injury that may be connected to a toxic exposure.¹⁵ Your approach should be case specific, but the initial questionnaire to clients should include the following requests for documents and information:

• medical history, including a list of all past and present symptoms
• employment history, including a list of co-workers
• information on where they have lived
• lifestyle habits, including smoking, alcohol, and drug use
• military service
• workers’ compensation history
• family medical history.

Also give potential clients a list of items to bring to the initial intake interview, such as

• proof of employment and wages
• income tax returns
• documentation of medical history
• relevant photographs
• in wrongful death cases, the death certificate
• the product or toxic substance itself, if it is still in their possession
• any packaging or containers for the product or substance.

If the plaintiff has a terminal illness, take steps to preserve the record, such as videotaping the plaintiff. In this situation, if time permits, take a preservation deposition in person or via videoconference.

Assessing the Exposure & Injuries

Many of the early toxic tort cases dealt with exposure to asbestos, which caused signature injuries, namely asbestosis, lung cancer, and mesothelioma.¹⁶ However, as more substances and products have been linked to negative health effects in recent years, it’s likely your client’s injury may come from nontraditional causes and may not be considered a signature injury.

In those situations, after gathering your client’s information and reviewing the records, consider ordering a medical examination to diagnose the cause of injury. Also hire a general causation expert, such as an epidemiologist, to find out whether the exposure to the substance is capable of causing your client’s disease. Keep in mind, you must prove the duration of exposure and concentration levels of exposure.

Identify the exposure. Once you conclude a toxic substance caused the injury, you must determine how your client was exposed: by inhalation (breathing in the toxic substance); by ingestion (drinking contaminated water or food); or dermally (absorbing the toxin through the skin). You must prove causation—that the exposure, at the concentration levels and duration levels determined, injured your client.

For clients who already have symptoms and an injury, the diagnosis and prognosis are critical. These are the baseline for any suit, and the plaintiff’s claims often rest on reported symptoms and their documentation.¹⁷ A complete medical history will support your efforts to eliminate prior unrelated physical problems, if possible; determine whether the exposure exacerbated a preexisting condition¹⁸; and identify symptoms that have a known etiology relating to the toxic substance in question.

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A careful review of medical, employment, military, and housing records can help fill in gaps in your client’s exposure time line.

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This history will also help document the progression of the plaintiff’s condition and its effect on the plaintiff’s ability to pursue daily activities and counter defense counsel’s theories of alternative causation.¹⁹ And a careful review of your client’s medical, employment, military, and housing records can help fill in gaps in your client’s exposure time line.

In addition to what you requested on the initial intake questionnaire, important documents, especially in cases involving workers, may include:

• Social Security records
• employer’s records
• workers’ compensation claims made by other employees (to help determine the frequency of illnesses or injuries in the work environment)
• in death cases, the decedent’s autopsy results, if available.²⁰

Identify the who & when. When investigating the exposure, document the type or brand of the product or substance at issue. Ask clients to bring in product packaging or receipts. Have your client share photos of themselves using the product—photos in social media posts also work well. You need to establish the amount, strength, volume, or dose, as well as the exposure duration, including accurate start and end dates. Identify all trade or brand names of the relevant product or substance. All of these are relevant in determining whether the toxin caused the injury and who released the toxic substance or placed it into the stream of commerce.

There can be varying levels of complexity depending on the type and source of exposure. You also must lock down the timing of your client’s exposure and at what point the client discovered that exposure may be linked to their injury or symptoms. Be ready to submit detailed declarations or offers of proof to show what your client learned and when and who they learned it from.

If the plaintiff alleges exposure occurred at the workplace, for example, gather names of all products the plaintiff remembers working with, the names of coworkers, and any information on union membership. Also gather information on other employees’ work sites and descriptions of the work they performed, as well as any safety measures provided on the job.

Gather information from your client about the area where they work, where they live, and the types of chemicals or pesticides used. Ask them to bring in clothing, water samples, and other items from their home so you can have these tested.

Working With Clients

Have an open dialogue with your clients about expectations. Your clients probably don’t realize that their personal life and injuries will be made public in court filings. Before discovery begins, and especially during deposition preparation, explain to your client that defense counsel is going to ask for the names of their family members; other people in their lives who know about the events underlying the case (including their injuries and disease); fellow employees; and more. But tell your clients that defense counsel is doing this to discover who the witnesses are.

There are also special considerations for plaintiffs who are from different socioeconomic backgrounds.²¹ At intake, ask about the client’s living situation, and set clear expectations for communications. For example, get an emergency contact in case your client’s living situation and phone service change.

Remember that your clients live with the impacts of the toxic exposure every day, and it is not uncommon for them to call regularly for an update. If your client has had to move out of their home due to toxic exposure, the case will be all that they can think about. When that happens, I try to work with my clients to find a therapist or free counselor to help them cope with their daily worries. Likewise, when I represent someone who has been sickened by a toxin, I find out who their care team is and how to get in touch with them if needed.

Many clients do not want to speak to staff, only to an attorney. Train your staff to set aside designated times to return client calls weekly and to help them understand that they will relay the message to the attorney. Also email or text your client periodically, and send a client update via the mail at least once a month—it goes a long way.

Be up front with your clients about what damages are available and how ascertainable they are. Potential damages include general damages, such as pain and suffering, fear of cancer, and emotional distress; special damages, such as medical expenses, future medical monitoring, property devaluation, and loss of income; and, depending on the facts of the case, punitive damages.

Give your clients homework so they are engaged in their case. In my firm, we give clients wage loss work sheets and cost tracking sheets, and we ask them to write a diary to the attorney to ensure their communication remains protected by privilege.²² However, each jurisdiction has a different view of work product and privilege so check the law in your jurisdiction to see what applies.²³

In some cases, I insist on the use of protective orders. In toxic exposure cases, the effects on the body can be devastating. If your client had a mastectomy or lost all their hair, for example, the last thing you want to do is share photos of them without a protective order. Having one in place helps you assure your client that their dignity will be preserved because sensitive items uncovered in discovery will be truly confidential.

In addition, when representing multiple family members in a toxic tort claim, even if there is no apparent conflict, have each party sign a waiver form. Schedule a joint meeting with them to discuss what confidentiality means, and send separate letters to each client addressing how each separate family unit has chosen to be represented.²⁴

By doing thorough research at intake and building a strong relationship with your clients, you can help them obtain justice after they are injured due to toxic exposure.

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Tiega-Noel Varlack is the founder of Varlack Legal Services in Hayward, Calif., and can be reached at tiega@varlacklegal.com.

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Notes

1. For more, see Danielle W. Mason, Environmental Justice for All, Trial, Jan. 2023, at 18.
2. Bean v. Sw. Waste Mgmt. Corp., 482 F. Supp. 673 (S.D. Tex. 1979).
3. Id. at 680.
4. Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 937 (3d Cir. 1997) (Private plaintiffs may maintain an action under discriminatory effect regulations promulgated by federal administrative agencies pursuant to §602 of Title VI of the Civil Rights Act of 1964.). The U.S. Supreme Court granted certiorari in that case but dismissed the case as moot when the landfill abandoned its plans to move to the area. Seif v. Chester Residents Concerned for Quality Living, 524 U.S. 915 (1998).
5. Amy Diaz, Flint Water Crisis Lawsuits Are Moving Forward: Here’s an Update, Flint Beat, Jan. 14, 2022, https://flintbeat.com/flint-water-crisis-lawsuits-are-moving-forward-heres-an-update/.
6. Id.
7. Mich. Dep’t Attorney General, Historic Flint Water Civil Settlement Approved by Genesee County Circuit Court, Mar. 21, 2023, https://www.michigan.gov/ag/news/press-releases/2023/03/21/historic-flint-water-civil-settlement-approved-by-genesee-county-circuit-court.
8. For more, see U.S. EPA, Environmental Justice Timeline, July 18, 2022, https://www.epa.gov/environmentaljustice/environmental-justice-timeline.
9. Jim Erickson, Targeting Minority, Low-income Neighborhoods for Hazardous Waste Sites, Mich. News, Jan. 19, 2016, https://news.umich.edu/targeting-minority-low-income-neighborhoods-for-hazardous-waste-sites/.
10. For more on the talc litigation, see Christopher M. Placitella, Dennis M. Geier, & Jared M. Placitella, A 30,000 Foot View of Cosmetic Talc Cases, Trial, Oct. 2020, at 34.
11. Che-Jung Chang et al., Use of Straighteners and Other Hair Products and Incident Uterine Cancer, 114 J. Nat’l Cancer Inst. 1636, 1638–1639 (Oct. 17, 2022), DOI: 10.1093/jnci/djac165. Cases have been filed across the country against manufacturers of the relaxers, and claims have been consolidated into an MDL in Illinois federal court. See In re Hair Relaxer Mktg., Sales Practices, and Prods. Liab. Litig., No. 1:23-cv-00818 (N.D. Ill. 2023).
12. Instead, the landlord sends an exterminator out, rather than making substantial upgrades to the property to prevent pests in the first place.
13. Tina Bellon, Monsanto Ordered to Pay $289 Million in World’s First Roundup Cancer Trial, Reuters, Aug. 10, 2018, https://tinyurl.com/mt82h8jm.
14. Compl., Calderon de Cerda v. Corteva, Inc., No. 20C-0250 (Cal. Super. Ct. Sept. 16, 2020). See also Don Thompson, Pesticide Caused Kids’ Brain Damage, California Lawsuits Say, Associated Press, July 12, 2021, https://tinyurl.com/29tjrann.
15. For more on toxic tort basics, see 57 Am. Jur. Trials 395 Handling Toxic Tort Litigation, Westlaw (database updated Feb. 2023).
16. Such injuries are known as “signature injuries” because they are so closely causally related to exposure to a particular substance. See also 1 Lawrence G. Cetrulo, Toxic Torts Litigation Guide §1:3, Westlaw (database updated Dec. 2022).
17. Allen v. United States, 588 F. Supp. 247, 406 (D. Utah 1984), rev’d on other grounds, 816 F.2d 1417 (10th Cir. 1987); Brenner v. Am. Cyanamid Co., 263 A.D.2d 165, 173 (N.Y. App. Div. 1999). See also In re TMI Litig. Cases Consolidated II, 911 F. Supp. 775, 806 (M.D. Pa. 1996).
18. Schimmenti v. Ply Gem Indus., Inc., 156 A.D.2d 658, 660 (N.Y. App. Div. 1989) (Plaintiff smoked two packs of cigarettes per day for 20 years and was allergic to feather pillows, mold, and spores. Given the many possible causes of injuries, urea formaldehyde could not be isolated as a causative agent.).
19. See, e.g., Michael Dore, 3 Law of Toxic Torts §22.19, Westlaw (database updated Mar. 2023) (Consider for inclusion on the medical questionnaire the following categories of disorders: “infectious diseases; tumors (both benign and malignant); glandular problems (including diabetes); blood disorders; nervous system problems; circulatory disorders; respiratory system afflictions; digestive system diseases; skin or tissue problems; muscular or skeletal conditions; genital problems; pregnancy or delivery difficulties; birth defects (including stillbirth); and mental afflictions.”).
20. A client authorization or subpoena will be necessary to gather these documents. However, in some cases, a public records act or Freedom of Information Act request may suffice if the information sought is held by the Social Security Administration or the sheriff coroner.
21. Matthew A. Shapiro, The Indignities of Civil Litigation, 100 B.U.L. Rev. 501, 501–02 (2020).
22. League of Cal. Cities v. Super. Ct., 194 Cal. Rptr. 3d 444, 451 (Cal. Ct. App. 2015) (“[W]hile the holder of the protection from disclosure granted by the attorney work product doctrine is the attorney, the client has standing to assert the work product protection on behalf of the attorney if the attorney is absent.”).
23. For example, see Towne Place Condo. Ass’n v. Phila. Indem. Ins. Co., 284 F. Supp. 3d 889, 894 (N.D. Ill. 2018) (“[P]rogress or status reports, investigation summaries, and general updates are generally not privileged merely because they were written by a lawyer to the client.”).
24. When representing multiple family members, at a minimum, follow the basic rule set out in Model Rules of Pro. Conduct r. 1.7 (Am. Bar Ass’n 2020).