Personalized Toxic Tort Litigation?
Proving causation in toxic tort litigation has bedeviled practitioners and courts for decades. Current work in the field of toxicogenomics, however, is closing in on ways to refine the practice, enabling a much more targeted approach to analyzing how a particular environmental hazard may have caused a particular plaintiff’s injury. Move over, personalized medicine. Personalized toxic tort litigation may be just around the corner.
What is a Tort? Tort cases are those in which the plaintiff claims to have been injured by the defendant’s negligent (or, rarely, intentional) misconduct. The best known examples are automobile accident and medical malpractice cases. In a toxic tort case, the plaintiff (or, often, a whole class of plaintiffs) claims that a sickness or injury is the result of exposure to some dangerous substance that the defendant negligently or intentionally put into the environment—the hundreds of thousands of asbestos cases that have been filed, for example.
Causation and Toxic Torts. In all tort cases, the plaintiff must show that the defendant’s conduct was what the law calls the “proximate cause” of his or her injury. This is especially tricky in a toxic exposure case. The plaintiff must prove two kinds of causation: that the substance in question can cause the kind of injury the plaintiff suffered (general causation), and that the substance did in fact cause this plaintiff’s injury (specific or individual causation). Proving specific causation is usually where the difficulties for the plaintiff arise.
