Toxic Tort

In the past, toxic tort litigation typically pitted individual plaintiffs with their small and ill-financed attorneys against large and well-financed corporate defendants. All too often, the plaintiffs’ small firms found themselves unable to bear the costs associated with hiring experts and preparing for trial. In the novel A Civil Action, Jonathan Harr chronicles the mythic legal battle between the rich, evil corporation and the poor, helpless plaintiffs with their highly leveraged attorneys, committed to doing right no matter what the cost.

Today, a new and less-publicized genre of toxic tort case has evolved and arguably leveled the toxic tort playing field. The complaint that a deserving plaintiff has been denied relief because of a well-financed corporate defense is theoretically no more common than the complaint that undeserving plaintiffs and their attorneys have caused defendant corporations to settle with plaintiffs for large sums, not based upon any real fear of an adverse outcome, but merely to avoid the high costs of preparation for trial and especially of discovery, which involves costs measurable not only in dollars but also in business disruption and negative publicity. Law firms are building their resources upon multimillion-dollar settlements of asbestos and tobacco suits. The movie Erin Brockovich recounts the famous story of the largest settlement ever paid in a direct-action lawsuit in United States history: $333 million, paid by Pacific Gas & Electric to settle a case involving injuries allegedly resulting from exposure to hexavalent chromium. These plaintiffs’ attorneys may travel by private jet and give little thought to a seven- or eight-figure investment in personal injury litigation.

The attorneys at Stephens & Stephens have helped corporations faced with the prospect of toxic tort litigation, and have helped to resolve toxic tort cases while minimizing and at times avoiding the often significant costs associated with litigation and settlement. In recognition of the potential for groups of plaintiffs with weak cases to extract large and undeserved settlements, courts have begun to require toxic tort plaintiffs to show proof, in admissible form, of exposure pathways and of causation of an actual injury. Proof of causation is very difficult in toxic tort actions, and the Daubert motion challenging the science supporting the cause of action can bring litigation to a screeching halt. Sometimes, statute of limitations defenses may be developed through simple discovery techniques which reveal that a plaintiff knew or should have known of an asserted injury long ago. Where numerous plaintiffs file one action, each plaintiff with damages unrelated to those of the other plaintiffs can be required to file a separate action, pay separate filing fees, and have his or her action tried separately from the others. Even the inconvenience of a few hundred dollars is enough to deter some plaintiffs from filing or continuing an action. The new federal class action legislation is an important development for toxic tort litigation, and will likely prevent many claims from being filed in otherwise plaintiff-friendly state courts.

The old toxic tort paradigm involved corporations represented by large firms and plaintiffs represented by small firms. Stephens & Stephens is part of a shift by large cost conscious corporations toward representation by small well-qualified firms. This shift, while originally driven by cost concerns, endures today not because firms like Stephens & Stephens are cheaper, but because they understand the problems of today’s corporations and are better able to handle complex toxic tort litigation consistent with corporate priorities and goals.