Environmental Engineering Reference
In-Depth Information
pounds. Claims were, on occasion, filed against manufacturers of unvented
space heaters.
Claims have been filed, and continue to be filed, against landlords in
housing units where children have EBL levels and symptoms of lead poi-
soning. These allege that such exposures were due to the landlord's negli-
gence. Sellers and leasers of pre-1978 housing are liable if they fail to disclose
any known lead hazards to buyers/tenants. Sellers of residences who have
conducted radon testing are liable if they fail to disclose to buyers that radon
levels were elevated. Similarly, sellers of residences are liable if they fail to
disclose the known presence of any contamination problem that would pose
a health risk to the new owner.
The use of toxic torts to seek legal redress associated with indoor envi-
ronment problems poses significant challenges to would-be plaintiffs. Litiga-
tion is expensive, and if the case goes to trial, the outcome is unpredictable.
In most cases, individuals who allege injuries cannot afford the costs involved.
Their access to the courts is often facilitated by contingency fee arrangements
with trial attorneys who agree to accept the case with fees contingent on the
outcome of the claim. Typically a trial attorney would receive 25 to 40% of
settlement or jury awards after expenses are deducted. Expert witness fees,
environmental testing costs, and costs of discovery may be borne “up front,”
in whole or in part, by plaintiff's counsel or by the plaintiff.
Most (90+%) personal injury/property damage claims are settled with-
out going to trial. Such settlements reduce the burden on the courts and
costs to defendants, trial attorneys, and plaintiffs. In many cases, out-of-court
settlement provides an equitable resolution of claims. It also reduces the
often lengthy time period (up to 6 years) required to conclude a case, and
relieves the plaintiff of the emotional anxiety and vagaries of the trial process.
A successful outcome of a claim, particularly in court, requires more
than the truth of a claim that a wrong has been done to the plaintiff. The
legal process involves two parallel, but disparate, tasks on the part of those
involved. These are: determining the truth and dispensing justice and, not
surprisingly, winning and losing. Assuming that the case has merit, the
outcome will depend on the relative skill and preparation of plaintiff's and
defendant's counsel; the plaintiff's ability to testify, respond to cross-exam-
ination, and evoke jurors' empathy/sympathy; the abilities of the plaintiff's
and defendant's experts; the judge's ruling on the admissibility of witnesses,
evidence, and testimony; and the general attitudes of the jury pool in a given
judicial district toward toxic torts.
Plaintiffs have a variety of disadvantages when a case goes to trial.
Foremost of these is economics. In many cases, defendants have significant
resources to engage very capable defense counsel and expert witnesses.
Plaintiffs have two very different burdens of proof. Through the preponder-
ance of evidence, plaintiff's counsel must prove in personal injury cases that
the exposure caused the alleged injuries/health problems and that the defen-
dant was legally responsible. The defendant, on the other hand, only has to
raise sufficient uncertainty in the minds of jurors or the trial judge. Defense
