Toxic torts are often triggered by an unexpected or serious medical diagnosis. Asbestos, for instance, can cause illnesses up to and including cancer—but most people who develop asbestos-related illnesses don’t show any symptoms for decades after an initial exposure. Other toxins, like those contained in household cleaning products, can have much more immediate effects. 

If you’ve been injured by a toxin exposure, you may not have to bear the burden of recovery alone. Here’s what you need to know about the process of filing a toxic tort: 

Step 1: Assess Your Standing

You can only file a toxic tort if you have standing to sue. 

In a legal context, having the “standing” to sue simply means that you have a good reason to sue somebody else. You can establish standing in many different ways. However, in most toxic tort cases, you will almost always be required to prove: 

  1. You have suffered an injury as a result of a toxic exposure; and
  2. You have established a connection between your injury and another party, such as a former employer, absentee landlord, or negligent business. 

Not everybody who is injured by toxins will be able to establish these criteria. 

As a general rule of thumb, it’s typically best to talk to lawyer who has experience handling toxic torts. Most attorneys offer free consultations, where you’ll have the chance to ask questions and get a preliminary opinion on your potential options for recovery. 

Step 2: Prepare the Outline of an Argument

If you haven’t already filed a toxic tort, nobody can tell you exactly what you will and won’t need to win your case. 

However, many toxic torts raise similar questions—questions you’ll probably be expected to answer, whether at trial or during negotiations with an ex-employer’s insurance company. These questions typically necessitate that you be prepared to establish all of the following elements: 

  1. The substance you allege caused your injuries is toxic or otherwise hazardous.
  2. You have been exposed to the substance. 
  3. You sustained damages as a result of your exposure. 

Establishing these elements is not as simple or as straightforward as it may seem. 

Even if you know that you were exposed to a toxin like asbestos or lead, you’ll need to present compelling evidence that exposure to a particular substance was the cause of your injuries. 

Since some toxin-related diseases take decades to develop, it can be very difficult to definitely trace causation back to an individual employer or property—especially if your exposure wasn’t recent. 

Step 3: Investigate and Collect Evidence 

Evidence in toxic torts can take many forms. These may include, but are not limited to, the following: 

  • Your medical notes and diagnoses
  • Your employment history 
  • Your military service record, if any
  • Scientific studies and research articles detailing a connection between a substance and your illness
  • Testimony from a medical expert, such as an experienced doctor 
  • Testimony from  an industry expert, who could provide information on standard practices as well as probably sources of exposure

Oftentimes, if an exposure has occurred in the distant past, obtaining evidence can be frustrating, if not downright impossible. Some law firms have addressed this issue by creating comprehensive exposure databases, which can be used to identify probable sources of toxins exposures. 

Step 4: Discovery

After you or your attorney have assessed your standing, collected evidence, and prepared an argument, you may be eligible to file a lawsuit against the person, or party, who caused your injuries. 

Serving a lawsuit to a defendant typically acts as a catalyst for one of the most important stages in the litigation process: discovery.  

Discovery is a formal process where both parties in a lawsuit—you, and the defendant—exchange information and evidence relevant to your case. On one hand, discovery means that opposing counsel has access to all of your evidence. But, on the other, it provides an excellent opportunity to dig for old records, suppressed communications, and internal correspondence. 

However, discovery isn’t automatic, and it’s common for both parties to file pre-trial motions designed to either suppress or accelerate different elements of the discovery process. 

Step 5: Pre-Trial Motions

A pre-trial motion is any request made to the court before trial that has the potential to impact or influence the outcome of your case. 

Filing pre-trial motions is normal and expected in toxic tort claims. Some of the most common pre-trial motions include: 

  • Motions to dismiss a lawsuit 
  • Motions to suppress certain types of evidence
  • Motions to change the venue for your lawsuit (e.g., from a state court to federal court)
  • Motion for a summary judgment

Step 6: Settlement Negotiations

The overwhelming majority of all lawsuits are resolved before they ever go to trial. 

Negotiations can be informal or highly structured. In some states, engaging in alternative dispute resolution (ADR) processes like mediation and arbitration is required by law in certain toxic torts. 

If you and the defendant reach an agreement, called a settlement, then attorneys for both parties will ask the court to dismiss the lawsuit. Settlements must typically be approved by the court; they are binding resolutions that can be enforced if either party’s obligations aren’t met.  

Some people who have exposed to toxins may not even need to initiate negotiations: depending on the circumstances of your exposure, you may easier, less adversarial ways of recovering compensation. These options could include disability claims or applications to an asbestos trust. 

The Final Step: Trial

Trial is the least likely outcome for most lawsuits. But it is important to understand.

However, if the defendant has even the slightest doubt about the veracity of your claims or the quality of your evidence, they may refuse to engage in negotiations—especially if they’ve faced few toxic torts and are reluctant to set a precedent that could prompt others to come forward. 

But, if and when negotiations fall flat, a toxic tort will eventually move to trial. In some cases, it can take years for a high-stakes claim to actually make its way in front of a judge and jury. 

Most trials are formal proceedings that consist of common elements, occurring in the following order: 

Jury Selection

Jury selection is the process of selecting the jurors who will hear your case. 

Jury selection can be a fairly complicated affair, as attorneys for both sides will strive to ensure that none of the jurors have had experiences or hold beliefs or biases that could affect their ability to make an impartial decision. 

Opening Statements 

After a trial begins, both parties will have the opportunity to present an opening statement. Opening statements set the scene for jurors, introducing them to essential arguments and giving them a general idea of what to expect in later stages. Courts in some states may restrict what can and cannot be said in an opening statement. 

Witness Testimony and Cross-Examination

Once both parties have shared their opening statements, they will begin presenting evidence in favor of their respective positions. Each side takes turns doing this—unlike in the movies, attorneys cannot interrupt one another to contest facts. The cross-examination of witnesses will only happen after evidence has been presented. 

Closing Arguments, Deliberation, and Verdict

The last stage in a toxic torts before the jury departs for deliberation is closing arguments. 

Closing arguments will usually emphasize strong evidence and address any perceived weaknesses or flaws in the opposing counsel’s arguments. Once both sides have concluded their closing arguments, the jury will depart for deliberation, which could take minutes, hours, or days. 

After the jury has finished deliberating, they will return to court and report their verdict. 

Appeals

If either side believes that the court has reached an erroneous conclusion, and they have evidence to support their argument, they may be able to appeal the decision. For example, you could file an appeal if your case is dismissed. Likewise, if the defendant disagrees with the size of your award or the reliability of your evidence, they have a right to appeal, too.