Toxic Exposure in California

by Vikas Bajaj

Lumber Liquidators and Toxic Exposure

Lumber Liquidators paid two and a half million dollars to the California Air Resources Board to settle claims for potential toxic exposure that resulted from formaldehyde that was present in some of Lumber Liquidator’s laminate flooring products.

Several government agencies released a report that said exposure to formaldehyde in some of Lumber Liquidators products caused cancer.  Formaldehyde, a dangerous chemical often used as an embalming agent but also in the manufacture of many resins, has been shown to increase breathing problems, irritation, and was labeled a toxic air contaminant by California in 1992.

While two and a half million may seem like a large amount to the average individual, this deposit is only a fraction of the total amount spent on cancer research and prevention each year. In comparison, Lumber Liquidators made two hundred and sixty million in income in the first quarter of 2015.

The report regarding Lumber Liquidator’s laminate flooring originally came out in February of last year, but the report incorrectly stated the risk for cancer from the formaldehyde in laminate flooring was three times lower than the actual risk was originally believed to be.

To settle claims for this misstatement of information, Lumber Liquidators deposited money into California’s Air Pollution Control Fund for research. The formaldehyde in the composite wood came to issue because California’s Air Resources Board has adopted regulations to prevent the public from being exposed to toxins in wood products. This composite wood flooring is another product in a long line of products that have been manufactured with a toxin or chemical that is dangerous to humans.

While California has passed many regulations to inform consumers of dangerous of pollutants, the state still has a long way to go in the process of eliminating toxic exposure, especially when those toxins come from consumer products. According to the American Lung Association, California cities consistently rank as the top five most polluted cities in three distinct categories. Exposure to toxins in the air is high in California, but products that have dangerous chemicals or toxins add an additional layer of concern for California residents.

Toxic Exposure Tort Law in California

Toxic exposure tort claims exist when an individual has been exposed to a harmful substance or chemical. Government regulations are in place to ensure that the safest products and chemicals make it to consumer markets, however, sometimes the harmful elements of a chemical are not clear until much later after a chemical is developed.

Often when a harmful chemical or product is discovered, not just one person is affected. Sometimes, hundreds, if not thousands can suffer from the effects of exposure to a toxic chemical. This often requires individuals who have been exposed to join in a class action.

In a class action lawsuit, a large number of people with similar injuries will join together against one company. Before people can proceed in a class action a judge must approve this type of legal action because it often takes a lot of time in the courts, and uses many judicial resources. The process of joining or starting a class action lawsuit is difficult and should be done with the assistance of an attorney.

There are a variety of ways an individual may be exposed to a harmful chemical. This includes being exposed the chemical while on the job. This is what happened to many industrial workers in shipyards who were exposed to asbestos. Another way exposure may happen is if a consumer product has a harmful chemical, such as the toxins in lead paint.

While each case will be different on how exposure occurred and what the injuries are, toxic exposure cases in California generally require the plaintiff or plaintiffs somehow show that the substance or chemical they were exposed to is dangerous or harmful. This can be difficult because sometimes the effects of being exposed to a chemical do not immediately manifest.

The plaintiff must also show that they were actually exposed to a chemical. This is what is known as legal standing.

Third, the person who has been exposed to a chemical or toxin must also show that the chemical or substance actually caused their health problems or injuries. This is known as causation. Causation can be difficult to prove in toxic tort case because some substances may not be known to cause any medical problems.

Often, scientific expert testimony must be used at trial to prove that a chemical or toxin is indeed harmful. This differs from traditional tort cases because causation in these cases is generally left to the jury. The individual who is sick or injured not only has to prove that a particular chemical caused their injury, but also that a particular chemical or toxin came from a particular defendant.

Difficulties and Challenges in Toxic Exposure Cases: Who to Sue?

Often when an individual has suffered an injury or sickness form a chemical, he or she has to sue a large company or manufacturer. Often these companies have significant legal and financial resources making it difficult for individuals to proceed against them.

However, it may not just be companies who made a toxic product who are responsible. Distributors and manufactures are only some of the potentially many defendants that may exist in a toxic exposure case. Deciding who to sue in a toxic exposure case can be an incredibly complex decision that will ultimately affect the outcome of a case.

Time Concerns in Toxic Exposure Cases

In addition in determining who the proper party to sue is, timing may present an issue in an individual’s case. Sometimes after an individual is exposed to a chemical or toxin, it may take months or years for any symptoms to be present. In many other legal cases, there is something known as a statute of limitations. These statutes provide a window for when a claim can be filed. For example, if you are injured in a car accident, you have two year from the date you were injured to file your claim against the other driver.

Like many other areas of the law, toxic exposure in California has its own statute of limitations. In California for any injury or sickness that occurs as the result of being exposed to a chemical or toxic substance, the statute of limitations is two years from the date of an injury or two years from when the individual becomes, or should have become aware of the sickness or injury. While the statute provides some protection for individuals exposed to chemicals who do not immediately realize their symptoms, two years may still not be enough time for any illness to manifest.

California’s “Substantial Factor” Test

One of the most difficult elements to prove in a toxic exposure test is that the chemical or toxin played a substantial factor in the individual’s injuries or sickness. California courts have said that the risk of injury must be more than theoretical. For instance, a company cannot be held liable for toxic exposure merely if an individual fears becoming ill. There needs to be more concrete proof. However, California courts have read the word “substantial” broadly, and have only required the injury to be slightly more than negligible.

Injuries That Can Result From Toxic Exposure

The injuries or illnesses that may result out of exposure to toxic substances are incredibly varied. However, medical studies show that common illnesses from exposure to dangerous or toxic chemicals include respiratory problems including asthma and trouble breathing. Certain chemicals can also cause impairments, or permanent changes in neurological functioning. Certain toxins can cause loss of coordination, mobility, or feeling in limbs.

Other medical concerns that can arise from toxic exposure include skin disease and disorders, narcolepsy, and cancer in multiple parts of the body. Many of these illnesses and injuries do not display visible symptoms, so it can be hard to determine if an individual has suffered an illness form a toxic exposure or another event.

How to Recover in Toxic Tort Cases

Once liability has been established in a toxic exposure case, there are a variety of ways that an individual who was injured or becomes ill may recover. These recovery avenues include state and federal statutes. Some federal statutes, such as those established by the Environmental Protection Agency, allow plaintiffs to impose liability on owners and operators of hazardous facilities (in current news, where Lumber Liquidators did its manufacturing) and those who transport hazardous substances. However, proceeding under a federal statute can have its drawbacks, as some federal regulations do not allow the recovery of certain types of damages. California has developed similar state laws that allow for another way to recover.

Have You Developed an Illness From Exposure to a Toxic Chemical?

If you were exposed to a dangerous chemical or toxin either at work or in your home and believe you have been injured, contact us today. Injury Trial Lawyers, APC can help you prove your case and your injury. We have experience in toxic exposure cases and can help you determine who to pursue a claim against if you or a loved one becomes sick.

Tags: toxic exposure