Articles Posted in toxic torts

I am a resident of Geneva, NY, and a personal injury lawyer with experience in “toxic torts”.  I have been following closely the developments regarding the high lead and arsenic levels in the area surrounding the old foundry in Geneva. It is a sad, unfortunate mess.  I feel deeply for the foundry neighbors, especially those who have had children grow up in the area.  If nothing else, the anxiety and fear must be overwhelming.  Many blame — and have filed notices of claim against — our government officials (DEC, Department of Health, etc.) for having failed to notify them of high toxin levels years ago when they first found out about it.  Longtime residents’ worry, fear, and anger are visceral.

As a lawyer, I wish I could bring them good news, some hope that our justice system will eventually bring fair and equitable compensation to those affected.  Unfortunately, I can’t. I have been approached by several Genevans to represent them against the City, the State, DEC and other governmental entities, but have declined.  One of the reasons I have declined is that the plaintiffs (the residents and property owners in the contaminated zone) are unlikely to prevail with their claims against the City, State, DEC, etc.  I am not saying the cases are hopeless, or that winning is impossible, but I can say without a doubt that the cards are stacked against the claimants.  Let me explain.

What Is A “Toxic Tort” and Who Can Be Sued?

One thing you godda love about lawsuits is “discovery”. It’s what goes on right after you sue and the party you sued answers. Then you get to ask them to turn over almost any document relevant to the claims or defenses. Almost any document that has any possible relevance at all is game.

And sometimes you turn up some real gems. It’s what I call “getting the goods”.

Think about the lawsuits in the 70’s against Big Tobacco. Imagine finding – hidden in the reams of papers turned over to you – internal reports admitting that Big Tobacco manipulated nicotine levels to “hook” smokers to their dangerous product. Or that they knew their product caused cancer even as they denied it publicly.  It’s a “gocha” moment! How much money is that kind of evidence worth at trial!?

I read in the Pop Tort that Erin Brockovich appeared on HLN’s Dr. Drew Show to talk about the cluster of Tourette’s like symptoms hitting teenagers in Leroy, NY. It turns out that in 1971 a train derailed and dumped tons of cyanide and TCE, which was never cleaned up, in the area where these kids have gone to school all these years. Brockovich’s skeptics are saying, hey, if this spill happened all the way back in 1971, why are kids turning out with these symptoms only now? Her response is that there have been similar symptoms in the past, but back then these kinds of ailments were not consistently reported or diagnosed, and also back in the early days of the spill, many parents told their kids not to drink the water around the school area.

This brings to light one of the main hurdles New York toxic tort lawyers face: Proving “causation”. It is often easy to prove negligence in causing the spill, or in failing to properly clean it, but how do you prove that exposure to the toxic substance caused your client’s cancer, or Tourette’s syndrome, or other ailment, when those diseases or syndromes appeared many years later? You will probably find experts in the field who will hold that opinion, but many times the evidence they rely on is not firmly established, and defendants’ experts will say, hey, wait a minute, lots of other stuff can cause cancer or Tourette’s-like symptoms, and your proof that this spill caused it is merely speculative! Many judges will toss the case before it ever gets to a jury.

But that doesn’t mean you can’t win one of these cases, and it especially doesn’t mean that the toxins emitted by corporate America are not killing us and making us sick. They are, and we known, and they know it. The only question is, can we prove it in court. . . .

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