Being served with a toxic tort lawsuit is a serious legal matter for any company. Whether the claim involves exposure allegations related to asbestos, PFAS, benzene, silica, industrial chemicals, pesticides, or another hazardous substance, the decisions made in the first few weeks of litigation can have a substantial impact on the outcome of the case.
While toxic tort claims often involve extensive document discovery, expert testimony, multiple defendants, and allegations of long-term exposure spanning decades, it’s essential to develop an organized and proactive response from the outset. This can help preserve crucial evidence, protect legal defenses, and position the company for a positive outcome, while minimizing risk.
1. Consult with Legal Counsel Immediately
After being served with a complaint, the first priority should be engaging experienced toxic tort defense counsel. Early legal involvement can allow the company to evaluate the allegations, identify potential defenses, preserve privileged communications, and ensure compliance with litigation deadlines. An attorney can also address important threshold issues, such as:
- Whether the court has jurisdiction over the matter
- Whether the claims are barred by the applicable statute of limitations or statute of repose
- Whether the complaint sufficiently states a legal claim
- Whether contractual indemnification or insurance coverage may apply
A prompt and thorough legal analysis often identifies opportunities to narrow or dismiss claims before litigation moves forward.
2. Preserve Relevant Evidence
Once litigation is reasonably anticipated or has already been commenced, a company typically has a legal duty to preserve relevant evidence. Failure to do so can lead to allegations of spoliation, sanctions, adverse jury instructions, or other consequences that can impair a defense. Companies should work collaboratively with counsel to implement an appropriate litigation hold that may include preserving:
- Emails and electronic communications
- Safety manuals and written policies
- Material safety data sheets
- Industrial hygiene monitoring data
- Employee training records
- Exposure monitoring records
- Incident reports
- Environmental testing results
A toxic tort defense attorney can best identify which documentation and data should be preserved. Notably, a coordinated preservation effort can help protect both the company’s legal obligations and its ability to mount a strong defense.
3. Identify Applicable Insurance Coverage
Many companies have historical insurance policies that may cover toxic exposure claims, particularly when allegations involve exposures that occurred years or decades earlier. Any commercial general liability policies, excess and umbrella policies, historical occurrence-based policies, and environmental liability policies should be carefully reviewed to determine whether coverage is available. Providing timely notice to insurers is often key to preserving coverage rights and avoiding unnecessary coverage disputes.
4. Conduct an Internal Investigation and Scientific Assessment
An early internal investigation can help a company and its counsel understand the factual circumstances underlying the allegations while identifying documents, witnesses, and potential defenses in the case. Depending on the nature of the claims, an investigation may examine the following:
- The company’s operations during the relevant time period
- Products manufactured or supplied
- Materials allegedly involved
- Workplace safety practices
- Regulatory compliance efforts
- Exposure controls
- Employee responsibilities
- Prior claims involving similar allegations
At the same time, defense counsel often works with qualified scientific, medical, and industrial hygiene experts to evaluate critical issues such as the duration and intensity of any exposure, or whether exposure occurred at all. These experts can also assess whether exposure levels were capable of causing the claimed injury, identify potential alternative sources of exposure, and determine whether the available medical and epidemiological evidence supports causation. Identifying strengths and weaknesses in the plaintiff’s scientific evidence early can help shape discovery, expert strategy, and dispositive motions.
5. Develop a Strategic Discovery and Case Resolution Plan
Discovery in toxic tort litigation can involve thousands of pages of documents, numerous depositions, and multiple expert disclosures. Developing a coordinated discovery strategy early in litigation can help ensure a company responds efficiently while protecting its legal interests. Companies should also establish clear internal protocols for handling litigation-related communications and document requests to help ensure consistency and preserve applicable privileges throughout litigation.
As discovery progresses, a company and its counsel should continually evaluate opportunities to narrow the issues in the case or resolve the case entirely. Depending on the facts and procedural posture, this may include filing dispositive motions, challenging the admissibility of expert testimony, pursuing mediation, or negotiating a settlement when appropriate. These decisions should be informed by the strength of the scientific evidence, potential litigation costs, available insurance coverage, business objectives, and overall risk profile.
Early planning and ongoing case assessment can help reduce unnecessary litigation costs while strengthening the company’s overall defense strategy.
Contact an Experienced Toxic Tort Defense Attorney
If your company is facing toxic tort litigation, an early assessment of potential defenses can significantly influence the course of litigation. Cosmich provides strategic, results-driven representation to businesses facing complex toxic tort claims involving alleged exposure to hazardous substances. With coast-to-coast offices, our attorneys are equipped to handle complex matters involving multiple claimants across jurisdictions. Contact us to schedule a consultation to learn more about our capabilities.