Toxins

Contents


    Executive Summary

    Different toxins lead to different chemical risks. There are four categories of toxic exposure: chemical, biological, physical, and radiological. Toxins are routinely used in the manufacturing and agricultural industries. Liability issues can include alleged violations of federal or state law, negligence, or bodily injury.

    Toxins present intricate and often unexpected issues. The number and variety of risks from exposure to toxins are many and varied. Injuries can be problematic to diagnose and proving causation challenging. Damages are large and difficult to calculate. Applicable laws and regulations are complicated and change frequently. Insurance must be carefully examined and purchased. Litigation is expensive. Overall, the stakes are enormous and indications are that they will continue to escalate.

    Background

    Toxins and their related chemical risks fall under four general categories:

    • Chemical toxicants include substances such as lead, mercury, chlorine gas, methyl alcohol, most medications (which can be poisonous in large amounts), and certain chemicals found in the environment. Unlike biological agents, chemical toxicants are not capable of reproducing themselves.
    • Biological toxicants are toxic substances produced by microorganisms, animals, and plants; they have the capability to cause harmful effects when inhaled, ingested, injected, or absorbed. This category includes viruses, fungi, protozoa, and bacteria.
    • Physical toxicants are substances that interfere with biological processes, such as coal dust or asbestos fibers which can cause disease if inhaled or ingested.
    • Radiation toxicity results from exposure to radioactive substances.

    Toxins and chemical risks vary greatly in severity. Many products in everyday use are manufactured with toxins, including plastics, coatings, detergents, synthetic fibers, and more. The agricultural industry relies on certain products like herbicides, insecticides, fungicides, and fertilizers to produce food. Toxic industrial chemicals are manufactured, transported, and used throughout the world.

    Injuries and Damages

    A toxic injury takes place when chemicals or other toxins upset the normal functioning of the human body. The negative effects can include nausea, headache, convulsions, coma, or death. “Acute toxicity” refers to short-term exposure to a toxin. “Chronic toxicity” denotes long-term exposure. Damage can occur in individual organs or in bodily systems such as the neurological, hematological, dermatological, renal, respiratory, renal, gastrointestinal or reproductive systems. Exposure to a toxin can also result in cancer or birth defects. It can be difficult to establish whether the toxic exposure caused the injury complained of, however, because the effects of toxins can mimic common illnesses such as influenza. Common symptoms of exposure to toxins might include diarrhea, itching, rashes, anemia, exhaustion, shortness of breath, or infertility and miscarriage.

    Legislation and Regulation

    Toxins are governed by many agencies and considerable legislation. The Environmental Protection Agency controls human and environmental exposures to chemical substances, and the manufacturing and distribution of industrial chemicals. The Toxic Substances Control Act is the primary law for managing chemicals; it governs the manufacturing, processing, distribution, use, and disposal of commercial and industrial chemicals and was updated by amendment on June 22, 2016. The Pipeline and Hazardous Materials Safety Administration, which falls under the Department of Transportation, regulates hazardous materials transportation. The Pollution Prevention Act deals with the control of industrial pollution at is source. Other existing laws and regulations address a variety of areas, including reporting on chemical data as related to exposure, existing and new chemicals in use, pollution prevention, compliance monitoring, waste cleanup enforcement, and export and import rules.

    Liability and Insurance

    Defendants in toxic exposure cases are likely to include companies and workplaces that use or manufacture toxic substances, distributors, and government agencies. Liability issues related to toxins and other chemical risks are many, including breach of product liability law (warning defect), negligence, violation of federal acts, property damage, reckless endangerment and other areas. Most companies that store or handle potentially toxic materials purchase Comprehensive General Liability (CGL) insurance as well as a separate environmental liability policy, because CGL policies normally exclude pollution claims.

    A range of coverage issues arise in toxic exposure cases, such as “occurrence” requirements and the application of “owned property” and other exclusions. The most consistent and difficult hurdle for those seeking coverage lies in proving that exposure to a particular toxin caused a particular injury.

    Litigation

    Litigation of toxic exposure cases is extraordinarily expensive. A lawsuit for injury caused by exposure to toxic substances is often brought as a class action suit for personal injury and may seek large damages. Proving causation is usually complex because the injuries might not manifest themselves immediately and damages might not be visible. Discovery demands are extensive. Any number of entities with any relationship to the toxins may be sued, such as the manufacturer of the offending chemical, the company that improperly disposed of the chemical, or the landlord that did not remove a chemical. Commonly litigated types of toxic tort claims may involve mining sites, solvents, drywall, coal combustion, solvents, lead, mold, and many more.

    Future Outlook

    There is no indication that the risks of toxins will be curbed any time soon, partly because the use of chemical, biological, physical and radioactive toxins is necessary for many industrial and manufacturing processes. Litigation and the accompanying insurance coverage issues will continue until, or if, these toxins can be removed from products and processes. Given the high stakes in toxic tort cases, insurers must stay aware of the science of toxins as well as legislative developments.

    In the News

    2024

    2023

    • US mother accuses GE and Bayer of causing son’s cancer - Carey Gillam, The Guardian (08/17/2023)
      A Massachusetts mother has filed a lawsuit blaming widespread PCB pollution by General Electric (GE), Monsanto and its German owner Bayer, and several other companies for causing her nine-year-old son to develop leukemia and suffer repeated debilitating medical treatments.
    • EPA orders Norfolk Southern to clean up toxic derailment - John Seewer and Michael Rubinkam, The Associated Press (02/22/2023)
      The U.S. Environmental Protection Agency ordered Norfolk Southern on Tuesday to pay for the cleanup of the East Palestine, Ohio, train wreck and chemical release as federal regulators took charge of long-term recovery efforts and promised worried residents they won’t be forgotten.

       

    • Ohio Train Derailment Puts Scrutiny on Norfolk Southern - Esther Fung, The Wall Street Journal (02/14/2023)
      Norfolk Southern Corp. is facing scrutiny from regulators, public officials and residents as cleanup and environmental-monitoring efforts continue in a small Ohio town after the derailment of a train carrying hazardous chemicals.

       

    • Monsanto sued again as Contra Costa County and 17 cities seek damages over legacy of toxic PCBs - Shomik Mukherjee, East Bay Times (02/03/2023)
      Contra Costa County and 17 of its cities are suing Monsanto Co. to force it to clean up pollution from a chemical coolant the former agriculture giant produced for decades that seeped into the bay waters and led state officials to advise against eating striped bass and other types of fish.

       

    2020

    2019

    2018

    • Bayer : Weedkiller Lawsuits Mount At Bayer - Ruth Bender , MarketScreener (11/14/2018)
      Bayer AG disclosed another jump in the number of lawsuits alleging the German company's recently acquired weedkillers cause cancer, elevating an issue that has wiped billions off Bayer's market valuation. . . . Lawsuits from 9,300 plaintiffs were pending at the end of October compared with 8,700 at the end of August, Bayer said Tuesday. Plaintiffs claim that Roundup weedkillers, which Bayer acquired in its takeover of Monsanto Co., made them ill and that Monsanto knew or should have known of the risks but failed to warn adequately.
    • Cancer patient who was awarded $289 million in Monsanto trial says he'll take $78 million instead - Holly Yan, CNN (11/01/2018)
      The payment is $211 million less than he expected, but Dewayne Johnson said he'll take it. . . . After months of legal drama, the terminally ill cancer patient has agreed to a reduced award of about $78 million from the agrochemical giant Monsanto, a sharp decrease from a jury's $289 million verdict. . . . Still, Monsanto's parent company says it will appeal. . . . Johnson, a former school groundskeeper, won a monumental case against Monsanto, claiming the company's famous weed killer Roundup gave him terminal cancer.
    • Lawsuit demands 3M pay for PFC medical studies nationwide - Josephine Marcotty, Star Tribune (10/08/2018)
      An unusual federal lawsuit against 3M Co. and other manufacturers of a widely used nonstick chemical demands that the companies pay for nationwide medical studies to measure its health impact on hundreds of millions of people who now carry it in their blood. . . . The class-action lawsuit was filed last week in U.S. District Court in Ohio by an attorney widely known for his successful litigation against E.I. duPont de Nemours and Co. and other companies that made or used nonstick compounds known as perfluorinated chemicals, or PFCs. The compounds were used for decades in firefighting foams, Teflon, Scotchgard and other products and wound up contaminating drinking water in parts of Ohio and West Virginia as well as several eastern Twin Cities suburbs.
    • 'The world is against them': new era of cancer lawsuits threaten Monsanto - Sam Levin and Carey Gillam, The Guardian (10/08/2018)
      “It’s like a serial killer, but it’s a product,” said Brooks, 57, who has a pending case against Monsanto, alleging that her husband’s use of the company’s popular weedkiller at their home led to his fatal disease. “It’s unconscionable … I don’t see how they can win. The world is against them.” . . . Brooks said she cried when she learned that a jury had ruled in favor of Dewayne “Lee” Johnson, the terminally ill former school groundskeeper who became the first person to take Monsanto to trial over Roundup. The verdict stated that Monsanto “acted with malice”, knew or should have known its chemical was dangerous, and failed to warn consumers about the risks. . . . Monsanto has filed an appeal, and a hearing is scheduled for Wednesday in San Francisco. The stakes are high for Monsanto and Bayer, the German pharmaceutical giant that acquired the company earlier this year. Energized by the Johnson win, a snowballing series of courtroom challenges are now threatening the legacy and finances of the corporations – and the future of a chemical that is ubiquitous around the globe.
    • Lawsuit: 3M knew chemicals were toxic - Eric Fleischauer, Decatur Daily (09/16/2018)
      3M Co. has known for more than 35 years that chemicals it discharged into the Tennessee River were toxic, and for more than 14 years that treatment plants were not removing the chemicals from drinking water, according to a lawsuit filed by a Lawrence County resident with kidney cancer. . . . The latest claim filed against 3M and its subsidiary Dyneon LLC, Daikin America Inc. and the West Morgan-East Lawrence Water Authority highlights allegations 3M knew of the hazards associated with non-stick industrial chemicals used in its Decatur plant, yet continued to dispose of them in ways that led to river contamination. . . . The complaint was filed last week in federal court by Deanna Arnold, who was diagnosed in August 2017 with kidney cancer, according to the lawsuit. It alleges West Morgan-East Lawrence knew its drinking water was unsafe for years before taking steps to remove the chemicals, which traveled 13 miles downstream before entering its water supply.
    • Bayer's Monsanto faces 8,000 lawsuits on glyphosate - Reuters (08/23/2018)
      The number of U.S. lawsuits brought against Bayer’s newly acquired Monsanto has jumped to about 8,000, as the German drugmaker braces for years of legal wrangling over alleged cancer risks of glyphosate-based weedkillers
    • California jury awards $289 million to man who claimed Monsanto's Roundup pesticide gave him cancer - GEOFFREY MOHAN, LA Times (08/10/2018)
      A San Francisco jury on Friday found Monsanto liable for a school groundskeeper’s lymphoma that he said developed after years of applying the company’s trademarked Roundup weed killer. . . . The $289-million verdict in San Francisco County Superior Court is certain to add momentum to a multi-front battle to ban Roundup’s main active ingredient, glyphosate. The compound is applied to millions of acres of crops, many of which have been genetically modified to withstand the herbicide.
    • Lowe’s Drops Paint Strippers Blamed in Dozens of Deaths - Eric Lipton, NY Times (05/29/2018)
      Lowe’s, the large home improvement retailer, announced Tuesday that it will no longer sell paint strippers that contain the chemicals methylene chloride and NMP, which have been blamed in dozens of accidental deaths. . . . The Obama administration, in its final days, concluded that the two chemicals represented “unreasonable risks” and moved to ban them for use as paint strippers. But the Environmental Protection Agency has not enacted the ban
    • Families sue school, state, Monsanto over chemical pollution - SALLY HO, AP (01/03/2018)
      Families who say they were sickened at a school outside of Seattle have filed a lawsuit against local officials and agrochemical giant Monsanto, claiming they allowed the school site to grow toxic with the use of the now-banned industrial chemicals known as PCBs. . . . The parents and children say their health deteriorated while the students attended Sky Valley Education Center, an alternative K-12 school in Monroe, Washington. The lawsuit was filed Tuesday in King County Superior Court. . . . The 36 people suing have reported suffering ailments like bloody noses and severe headaches that disappeared when school was out, and long-term thyroid, gastrointestinal and skin problems, among other health problems. They also claim that other teachers, children and parents not represented in the lawsuit developed cancers that in some cases lead to their deaths. . . . The Monroe School District rejected the claim that officials were negligent in maintaining and inspecting the property, saying that it has "aggressively and proactively" worked to clean up possible pollution since air quality concerns were first raised in 2013. . . . Patricia Buchanan, the district's attorney, said in an email that officials consulted with experts, tested and cleaned all potentially effected fixtures and replaced and retrofitted parts of the buildings. Buchanan also said that recent testing showed no detectable levels of PCBs. . . . PCBs, or polychlorinated biphenyls, were used in industrial and commercial applications. In many schools built or remodeled before 1980, PCBs were used in fluorescent lights, flooring adhesives, paint, ceiling tiles and caulking around doors and windows. According to the U.S. Environmental Protection Agency, PCBs have been shown to cause a variety of health problems, including cancer in animals as well as effects on the immune, nervous and reproductive systems.

    2017

    • Trump administration delays bans of toxic solvents - Cheryl Hogue, Chemical and Engineering News (12/20/2017)
      The Trump administration is delaying the Environmental Protection Agency’s plans to ban high-risk uses of three hazardous solvents.
      Those plans took shape in the waning days of the Obama administration. That’s when EPA proposed the ban on methylene chloride and N-methylpyrrolidine (NMP) in paint strippers and trichloroethylene (TCE) in aerosol spray degreasers, spot-cleaning agents in dry cleaning, and vapor degreasing. These uses put people at risk for cancer and neurodevelopmental effects, the agency determined. . . . If finalized, the restrictions would mark the first time EPA has prohibited uses of a commercial chemical in more than a quarter-century. In addition, they would be the first such regulations since Congress amended the Toxic Substances Control Act (TSCA) in 2016 to boost EPA’s authority to control high-risk uses of chemicals. . . . However, the Trump administration on Dec. 14 quietly said it will indefinitely postpone finalizing the planned ban of TCE uses and, at some unspecified time in the future, recast the proposed regulations for methylene chloride and NMP. Such changes could include withdrawing the proposals on methylene chloride and NMP, leaving the two chemicals unregulated.
    • Minnesota AG's lawsuit asks: What did 3M know about PFCs?, - Josephine Marcotty and Jennifer Bjorhus, Star Tribune (11/27/2017)
      Gary Paulson has always wished he knew more about the toxic chemicals that once leached into his well from a landfill 1,000 feet from his Lake Elmo home. . . . At 71, he has survived four bouts of cancer and mused often about neighbors who also fell ill over the years. "Thank God Karen is OK," he said of his wife. . . . Paulson and other east metro residents from Woodbury to St. Paul Park, who for decades have lived with contaminated drinking water, are being swept up in what may prove to be the final reckoning between the state of Minnesota and one of its oldest, most esteemed corporations. . . . Unlike the residents, 3M Co. knew a great deal about those chemicals, it turns out. They're compounds it manufactured and dumped at several sites around Washington County, according to documents filed last week in a lawsuit by Minnesota Attorney General Lori Swanson. . . . A stark report from a Harvard University researcher hired by Swanson concludes that 3M knew about the chemicals' possible health risks as early as the 1970s, and purposely avoided doing the research that would have provided the state and the company's neighbors with more information about them. . . . The company "either closed its eyes to the evidence, or chose purposely not to find it," said Philippe Grandjean, a leading researcher on the chemicals who reviewed many of the thousands of internal 3M documents. "It's remarkable," he said, "how little and how late 3M's knowledge was publicly disclosed."
    • Lawsuit alleges tainted water caused cancer - Evan Belanger, DecaturDaily.com (11/19/2017)
      Alleging exposure to toxic chemicals in their drinking water caused cancer and other health problems, 24 area residents have filed a federal lawsuit against three companies and a local utility. . . . The lawsuit is the latest in a series of legal actions related to the industrial chemicals perfluorooctane sulfonate (PFOS) and perfluorooctanic acid (PFOA) in the Tennessee River. . . . Last year, the Environmental Protection Agency issued a health advisory indicating that even trace amounts of the two chemicals in drinking water — as little as 70 parts per trillion over a lifetime of exposure — presented potential health risks, including certain types of cancer, thyroid problems, and immune system effects. . . . Defendants named in the suit include the West Morgan-East Lawrence Water and Sewer Authority, which issued a temporary no-drink warning last year when levels of the two chemicals rose above EPA recommendations.
    • Toxins in widespread use excluded from EPA chemical review - MATTHEW BROWN, AP (ABC NEWS) (10/25/2017)
      Spurred by the chemical industry, President Donald Trump's administration is retreating from a congressionally mandated review of some of the most dangerous chemicals in public use: millions of tons of asbestos, flame retardants and other toxins in homes, offices and industrial plants across the United States. . . . Instead of following President Barack Obama's proposal to look at chemicals already in widespread use that result in some of the most common exposures, the new administration wants to limit the review to products still being manufactured and entering the marketplace.
    • The E.P.A.’s Top 10 Toxic Threats, and Industry’s Pushback - ERIC LIPTON, New York Times (10/21/2017)
      The Environmental Protection Agency has published a list of 10 toxic threats it will evaluate first under a law passed last year intended to crack down on hazardous chemicals. They are among 90 chemicals identified by the agency that may harm children, damage nerve tissue, cause cancer, contaminate the environment, accumulate in the bloodstream or show up in consumer products. As the review begins, industry and other interest groups are urging the E.P.A. to limit any restrictions.
    • Monsanto sold banned chemicals for years despite known health risks, archives reveal - Arthur Neslen, The Guardian (08/10/2017)

       .Monsanto continued to produce and sell toxic industrial chemicals known as PCBs for eight years after learning that they posed hazards to public health and the environment, according to legal analysis of documents put online in a vast searchable archive. . . . More than 20,000 internal memos, minutes of meetings, letters and other documents have been published in the new archive, many for the first time. . . . Most were obtained from legal discovery and access to documents requests digitised by the Poisen Papers Project, which was launched by the Bioscience Resource Project and the Center for Media and Democracy. Chiron Return contributed some documents to the library. . . . Bill Sherman, the assistant attorney general for the US state of Washington – which is suing Monsanto for PCB clean-up costs potentially worth billions of dollars – said the archive contained damning evidence the state had previously been unaware of.

    • Groups Praise Law Banning Flame Retardants in Furniture - MARINA VILLENEUVE, AP (US News (08/04/2017)

      Firefighters and national chemical safety groups said they hope the nation follows Maine’s  lead in passing a tough flame retardants law that the chemical industry lobbied against. . . .Lawmakers on Wednesday overrode Republican Gov. Paul LePage's veto of a law supporters say will reduce firefighters' exposure to carcinogens. Starting in 2019, Maine will prohibit the sale of new upholstered furniture made with materials that contain more than 1 percent of a flame-retardant chemical.

    • A Sacramento State chemical spill has lab techs questioning their workplace safety - Diana Lambert, The Sacramento Bee (05/28/2017)
      A chemical spill at Sacramento State last year has led to questions about whether the university is putting its lab workers at risk from exposure to hazardous substances. Some lab employees say they work in areas so poorly ventilated that acidic fumes corrode metal and rubber, and two workers claim that exposure to these substances and others may have led to their inability to have children. "Our whole stockroom is rusting and rubber bands last only about two weeks before they pulverize, and that is the norm for us," said lab manager Barbara Coulombe, 49. "If something needs to be protected, like our respirators, we keep them in plastic bags and put them in Tupperware."

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