Toxic Exposure Defenses Pt. 2

Posted by Tyler Pillay on November 16th, 2017

A previous article discussed three common defenses that are used by defendants in toxic tort litigation. It looked at the arguments and strategies that are often used by defendants such as manufacturers of pharmaceutical drugs, pesticides and chemicals. This article will discuss common affirmative defenses that are employed by toxic tort defendants in personal injury toxic exposure lawsuits.

Defendants can present evidence designed at refuting the claims of the plaintiff, however, in other situations defendants in the lawsuit can also make their own separate defenses which are referred to as affirmative defenses. In affirmative defenses the defendant argues that even if the plaintiff can prove a claim there is still some reason why the defendant should not be held legally responsible for the harm. Common affirmative defenses in toxic exposure litigation include the following:

•  Statute of limitations - an injured person is required to file a legal claim within a certain period of time; this period of time is referred to as the statute of limitations. In the event that a plaintiff waits too long to file his or her claim, the plaintiff is barred from filing a lawsuit. In toxic tort litigation because plaintiffs often bring lawsuits many years after the original injury occurred, the defendant can argue that the plaintiff did not bring the lawsuit in time and as a result even though the plaintiff has a valid claim the lawsuit must be dismissed. In most courts they use the ‘discovery rule’ in respect of statute of limitations. This rule basically determines that the clock does not start until the plaintiff discovers the harm that he or she has suffered; this is especially important in toxic tort cases as the plaintiff may not discover the harm he or she has suffered until years later when the first symptoms manifest. For example, in the case of mesothelioma, whereby a plaintiff can discover symptoms some fifteen years after the actual event. Further, it is possible for the statute of limitations to be ‘tolled’ or paused if the defendant tried to prevent the plaintiff from discovering the harm or in situations where the plaintiff is young or mentally disabled.
•  Statute of repose - in some states there are laws that set absolute time limits on when a plaintiff can sue for certain injuries or products without taking into consideration the plaintiff’s discovery of the harm. Such laws are referred to as statute of repose; and can be used as a defense in order to dismiss the lawsuit.
•  The assumption of risk - defendants often argue that the plaintiff knew of the dangers of the substance and understood the risks that were involved with exposure to it, but took the chance to engage in an activity that caused the exposure anyway. This is a common defense used by tobacco companies arguing that smokers know or should have known of the associated risks of smoking and as a result are said to have assumed the risk of any resulting illnesses.

For legal advice and representation with respect to personal injury toxic exposure claims, seek out a personal injury Anchorage attorney today

If you are looking for personal injury Anchorage attorneys, the author recommends Crowson Law Group.