Those who suffer personal injury due to the negligence of another party typically have the right to pursue financial restitution, or damages, in a civil court of law. Damages in toxic tort cases may come in several different forms for successful plaintiffs. The two most common types of damages include compensatory damages—which may include both special damages and general damages—and punitive damages.
Compensatory damages in toxic tort cases often include medical expenses, often after exposure that leads to some biologic dose of toxins to an individual’s system. These medical expenses may comprise of both diagnosis and treatment of their medical condition, hospitalization, and counseling stemming from their condition. Medical expenses for toxic tort plaintiffs may include both past medical expenses as well as reasonably certain future medical expenses; running the gamut from medicines and hospital services to nursing care and medical attendants.
Some toxic tort cases necessitate a special type of relief called medical monitoring costs. Medical monitoring refers to diagnostic testing that is believed necessary due to the fact that certain exposed populations could be at risk for future development of latent diseases due to tortious exposure to toxic substances. The medical monitoring is hoped to either prevent diseases entirely, or at least lead to early detection so that treatment can limit the damage done to any exposed victims.
Another common form of compensatory damages stems from plaintiffs being forced to miss work due to either temporary or permanent injuries related to toxic exposure. Nearly all courts allow this type of toxic tort damages to be sought by exposure victims. This can encompass both past lost wages and loss of earning capacity in the future. Lost wages, which are considered a form of special damages, must be set out specifically in a measurable manner. Courts typically employ a simple formula which multiplies the monthly salary of the victim by the amount of work they have missed due to their related injury.
Loss of earning capacity, on the other hand, is a general damage and thus can be argued in a more general manner. Any awards for future lost income are obviously speculative on their face, and it is just about impossible to calculate them with complete certainty. However, courts will take into consideration factors such as the plaintiff’s age, life expectancy, habits, health, occupation, skill, experience, talents, training, and relevant industry standards such as advancement opportunities.
Other types of damages may include an increased risk of disease, emotional distress, loss of consortium (awarded to the spouse of a tort victim for the loss of intangible items like “affection,” “society,” or “companionship”), and pain and suffering. Damages for pain and suffering are often difficult to measure, and are often up to a jury to decide. Many courts will not allow the awarding of pain and suffering until and only if a “disabling consequence” of a toxic exposure has occurred.
One other important form of damages in toxic tort cases relates to the wrongful death of an exposure victim. These types of damages may be sought by the surviving dependents of a deceased victim. Wrongful death claims are typically filed as a separate cause of action and damages will relate to the loss of support to the dependents caused by the decedent’s death. Regardless of the type of damages sought, however, exposure victims will often benefit from consulting with an experienced toxic tort attorney in order to give their case the best chance at success possible.
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Source: “Theories of Liability and Damages in Toxic Tort Cases” document provided by The Dysart Law Firm, p.c.