Creosote Litigation: Understanding and defending the industrial and commercial uses

Aug 26, 2020 | Environmental, Toxic Tort

A new toxic tort lawsuit was recently filed against a railroad company in Houston, Texas.  Plaintiffs allege that the coal tar used by the railroad between 1950 and 1985 contained creosote that contaminated the air and ground of the railroad property and plaintiffs’ neighboring community.  According to the Federal government, creosote is a substance derived from tar from wood or coal and it has served as a wood preservative/pesticide approved for use in non-residential settings.  The Federal government considers creosote a probable human carcinogen linked to multiple forms of cancer. Exposure can occur through skin contact, breathing, and ingestion.  Plaintiffs in the Texas case allege that the railroad failed to warn of the creosote hazard and failed to adequately remediate the creosote hazard (citing cleanup permits that the railroad obtained from the state), which caused personal injuries and property damage.

Generally, to prove medical causation in a toxic tort case, a plaintiff must demonstrate that the substance at issue can cause a disease (general causation), and the plaintiff must prove that they were exposed to a sufficient dose of that substance and developed that same disease (specific causation).  Additionally, to prove property damage claims, a plaintiff must prove a substance existed on defendant’s property, and prove how that substance escaped defendant’s property (i.e., through soil, water, air) to plaintiff’s property such that it damaged their property.

Generally, there are certain factual and legal defenses available to defendants depending on whether a plaintiff pleads a theory of negligence, intentional tort, and/or strict liability.  In the instant case, there is an allegation that the railroad obtained permits to cleanup creosote on its premises, which suggests that there was creosote on the railroad premises.  However, the discovery phase has not had an opportunity to progress to discover all of the relevant facts, including the nature of any cleanup, and have experts submit their opinions based on their reviews of the relevant facts discovered during the discovery phase.

There are certified applicators and disposal protocols required when using creosote-based substances given the hazards of creosote.  Much like in asbestos litigation, a notorious toxic tort litigation, law firms defending clients in creosote cases must be familiar with the regulatory history and scientific literature to develop effective and dynamic defense strategies to defend their clients in the immediate case and potential future cases.

CMBG3 Law LLC has represented clients in toxic torts matters for many years. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information about the asbestos regulations referenced in this article, please contact Clifford V. Pascarella II, Esq. (email him or 617-279-8234).

Authored By:

Clifford V. Pascarella, Esq.

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