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Toxic Tort Litigation Forecast: The Current and Future State of Toxic Tort Litigation

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主页 观点 Toxic Tort Litigation Forecast: The Current and Future State of Toxic Tort Litigation

Matthew D. Jacobson, a partner in Reed Smith LLP’s Miami office, defends clients in mass tort litigation, class actions, and multidistrict litigation. He has handled toxic tort cases involving asbestos, ethylene oxide, mold, and water contamination. Matt’s practice also focuses on the legal issues associated with per- and polyfluoroalkyl substances (PFAS) and he is considered a thought leader on such issues, regularly speaking and advising on the topic.

Kevin M. Hara is a counsel in Reed Smith LLP’s San Francisco office where he concentrates his practice on product liability litigation and multidistrict and mass tort litigation. He has extensive experience in complex litigation and has handled a wide variety of aspects in the litigation lifecycle from initial pleadings, law and motion, and discovery through pretrial proceedings.

The legal landscape seems to be shifting, from traditional toxic torts to a new species of such claims. Plaintiffs used to target chemical manufacturers, mainly arguing that their products polluted a water supply or the air causing injuries to local residents. Plaintiffs have not necessarily switched their focus but are now asserting toxic tort claims against companies that manufacture consumer products, suppliers of chemicals, and even manufacturing plants. Accordingly, there are important implications for product manufacturers across the spectrum. This article examines how the toxic tort landscape is changing.

This article (1) provides a brief overview of traditional toxic torts; (2) discusses three “legacy” toxic torts, asbestos, talcum powder, and benzene; (3) discusses three emerging, toxic torts, PFAS, ethylene oxide, and automotive gasoline, for which—despite an absence of reliable scientific evidence of causation—there will likely be increased litigation; and (4) offers recommendations on risk mitigation strategies for companies who are potential targets for such litigation.

The past several years have seen an increase in litigation overall and in toxic tort litigation, attributable in part to more attorney advertising and litigation funding. In fact, the American Tort Reform Association determined attorney advertising increased nearly 40% between 2020 and 2024, stating “more than $2.5 billion were spent on more than 26.9 million ads across all analyzed mediums for legal services or soliciting legal claims” across the U.S.—more than double the amount spent on pizza advertisements, at $1.1 billion during that same time. (See American Tort Reform Association, “Legal Services Advertising in the United States 2020-2024,” March 2025 edition available at "Legal Services Advertising in the United States – 2020-2024".) Historical data indicates litigation of toxic tort cases could increase if the economy struggles due to the countercyclical nature between litigation and the economy, underscoring the importance of risk mitigation and litigation preparedness for at-risk companies. (See Michael McDonald, PhD, “Finance And Law: Recessions And Lawsuits,” Above the Law, July 26, 2016, available at "Finance And Law: Recessions And Lawsuits".) There is no certainty that this will occur over the next few years if the economy trends down, but it has in the past, and there is no reason for product manufacturers to refrain from taking appropriate protective measures or to hesitate on insisting on rigorous scientific evidence during litigation. (See Eric Hudson, “The Perils of Moline, Part II – Persistence Prevails in Re-Identifying Plaintiffs in Cosmetic Talc Article,” available at "The Perils of Moline, Part II – Persistence Prevails in Re-Identifying Plaintiffs in Cosmetic Talc Article"; Pecos River Talc LLC v. Emory, Action No. 4:24cv75, 2025 U.S. Dist. LEXIS 129703, at *17 (E.D. Va. July 8, 2025) (ordering defendant in trade libel action to disclose names of research subjects because the plaintiff “[was] entitled to the names to independently determine whether defendants acted with actual malice, including by ‘purposeful[ly] avoid[ing] the truth’” where plaintiff claimed subjects’ only exposure to asbestos was through use of talc when plaintiff expert deliberately falsified such evidence in other litigation).)