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How Does Proposition 65 Impact My Toxic Tort Claim?

Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, allows a private individual, instead of the Attorney General (if the Attorney General declines to pursue the claim), to pursue a claim against an entity for exposure to toxic substances. However, you are required to follow specific notice procedures before you can get approval to pursue the claim as a private individual. It’s a concept known as the private attorney general. If you don’t follow those notice procedures, it will prohibit you from filing a lawsuit on your own, so it’s crucial to have an attorney to help guide you through that process.

California lists toxic substances that fall under Prop 65, and that list is updated yearly. It’s essential to stay on top of the list if you’re pursuing litigation. Recently, any litigation has been suspended concerning a chemical called acrylamide because the Attorney General got involved. There are some issues as to whether this chemical is automatically created during all high-temperature cooking, such as deep-frying. Studies seem to show that the exposure amount needed to generate cancer in mice was astronomical. That’s why all litigation regarding this chemical has been suspended pending the outcome of a particular case.

To pursue a Prop 65 claim, you have to follow the notice procedures, including sending a 60-day notice to the Attorney General, and get a certificate of merit from the Attorney General to pursue a claim by yourself as an individual on behalf of the Attorney General.

What Are Some Common Defenses To Toxic Tort Claims That Must Be Overcome?

Some of the defenses to toxic tort claims are the same defenses you see in any personal injury case, which would include the statute of limitations and medical causation. More specific defenses are related to products and product liability, such as product identification. For example, in asbestos litigation, generally if you cannot identify the particular product that you used that contained asbestos, you cannot make a recovery. You have to identify the product that contains the toxic substance, or you won’t be able to make a recovery unless you can prove it through other circumstantial evidence.

Another defense includes what’s known as the state of the art or duty to warn: if when the product was manufactured, no one knew it was dangerous, then they don’t have a duty to warn. In other words, if they, later on, find out that Product A is very harmful to somebody’s health but nobody knew that at the time that Product A was being manufactured, that’s a defense.

In addition, there are what are known as product and government specifications. Although this defense has been weakened over the years, the government specifications were used extensively in asbestos litigation concerning asbestos-containing parts used on Navy ships. The defense would argue that these parts were made to the specifications set forth by the government and, therefore, were entitled to a level of qualified immunity. Over the years, that argument has been severely weakened because it came to light that the manufacturers of these products that contained asbestos would frequently tell the Navy that they knew what the specifications should be and how to meet them. It wasn’t, in fact, the government telling them what the specifications needed to be.

An additional defense classified as a superseding or intervening event is called a sophisticated purchaser. A sophisticated purchaser is someone who knows about the product and knows that it is dangerous. Therefore, when they get injured from it, they are essentially held to a different standard. This is very similar to the learned intermediary rule that you find in medical malpractice and pharmaceutical litigation.

Finally, there are three other defenses that they like to cite: contributory negligence, assumption of the risk, and product misuse. All of those are about shifting the liability back to the individual for either negligently or improperly using the product or knowing that the product was dangerous and assuming some risks. Bleach is a good example because it’s a product that can’t be made safer, and that’s why they put warnings on it. There is a level of assumption of the risk if you use bleach and manufacturers can hide behind these defenses, as well.

For more information on Impact of Prop 65 on Toxic Tort Claims in CA, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (855) 675-2901 today.

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