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The Necessary and Essential Elements of Toxic Torts: Proving Level of Exposure

Kristin Lausten Lawyer

Toxic tort cases are, at their core, a subset of negligence and product liability cases. As such, the standard elements of negligence and product liability must be proven. These include duty, breach, causation, and injury. Additionally, the causation must flow from the fact that the toxic substance was unreasonably dangerous or from a failure to provide adequate warnings. From this we can say that there are four necessary and essential elements to proving liability with respect to toxic torts:

  • That exposure to some toxic substance is harmful/can cause some particular disease or medical condition
  • That exposure at certain minimum levels over certain time periods will result in a particular disease or medical condition
  • That the plaintiff was exposed to the toxic substance at the minimum level or higher
  • That the plaintiff’s disease or medical condition was not caused by some other exposure or event

In this article, we focus on the third element: level of exposure. In future companion articles, we will discuss the other elements.

Sometimes level of exposure is a factual question and is adduced at trial from eyewitness testimony. For example, in the case involving Roundup weedkiller against Monsanto, the plaintiff Dewayne Johnson testified that he was exposed to glyphosate for years while working as a groundskeeper for a school district in California. According to his testimony, Mr. Johnson was exposed to the concentrated version of the weedkiller, that he prepared hundreds of gallons of the spray at least 30 to 40 times a year and, at least twice, spilled the chemicals resulting in him being entirely “soaked” in the Roundup concentrate. See news reports here and here.

Mr. Johnson claimed that his exposure caused him to develop non-hodgkins lymphoma, a form of cancer. The jury returned a verdict against Monsanto for $289 million.

Sometimes expert testimony is needed to prove or estimate the level of exposure. With respect to exposure to benzene, for example, see the case of Hall v. CONOCO INC., Case No. 17-6086 (US Court of Appeals, 10th Circuit 2018). In that case, plaintiff Hall was diagnosed with leukemia, and she attributed the disease to a ConocoPhillips refinery’s emissions of benzene. She lived near the Conoco refinery when she was a child and developed leukemia later in life. There was no issue with respect to the emissions of benzene by the refinery. However, there was also no direct evidence of the level of exposure. Unlike Mr. Johnson and Roundup, Hall could not testify to direct contact with the benzene or being covered “head to toe” in the chemical. As such, Ms. Hall’s attorneys had to use expert opinions to estimate her exposure.

In the Hall case, an expert called an “air-modeler” was used with respect to evidence of the level of exposure. Based on industry records and other metrics, the expert opined as to the highest hourly average-emission levels from the refinery. Based on geography, wind and weather patterns, the expert then opined as to his estimate of Ms. Hall’s level of benzene exposure, both in terms of concentration and in time increments. In general, the level of exposure is a function of the quantity of exposure and the number of times or length of exposure. In the Hall case, the air-modeler’s opinions were deemed reliable but the opinions of several other medical experts were excluded.

For a case here in Louisiana involving the release of sulfur dioxide, see Richardson v. American Cyanamid Co., 757 So. 2d 135 (La. App. 5th Cir. 2000). In 1992, there was a one-time emission of toxic sulfur dioxide from the American Cyanamid Company’s chemical facility located in Waggaman, Louisiana. The result was a cloud plume of smoke and chemicals that was blown westward by the prevailing winds. Various residents in the path of the plume claimed to have suffered long-term and debilitating medical conditions. However, several of the plaintiffs were dismissed by the trial court who held that their level of exposure was not sufficient. Again, expert testimony was needed since eyewitness testimony was not possible with respect to the exposure. And, again, the level of exposure was calculated based on the highest possible concentration over some time period. The trial court dismissed several of the plaintiffs because they had been exposed — according to the testimony — for “only a few minutes.” Even at the highest concentration opined by the experts, exposure for “only a few minutes” could not cause the medical conditions claimed.

Contact an Experienced Louisiana Toxic Tort Defense Lawyer

Need assistance? Have questions? Contact Kristin M. Lausten. We defend toxic tort cases in both state and federal courts throughout Louisiana. We use state-of-the-art technology and maintain relationships with a broad range of scientific and legal experts who are needed for defending toxic tort cases.

In addition, we provide legal consultation and planning so that you can decrease your risks of being sued for torts related to toxic substances.

The author may be contacted at:

Kristin M. Lausten

New Orleans, Louisiana
Telephone: 504.377.6585
E-mail: kristin@kristinlausten.com
Web: www.kristinlausten.com

This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.

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