Legal And Scientific Perspectives On Causation In Mass Tort Litigation

The chapters in this volume arise from a conference held at the University of Aberdeen concerning the law of causation in the UK, Commonwealth countries, France and the USA. The distinguished group of international experts who have contributed to this book examine the ways in which legal doctrine in causation is developing, and how British law should seek to influence and be influenced by developments in other countries. As such, the book will serve as a focal point for the study of this important area of law. The book is organised around three themes - the black letter law, scientific evidence, and legal theory. In black letter law scholarship, major arguments have emerged about how legal doctrine will develop in cases involving indeterminate defendants and evidential gaps in causation. Various chapters examine the ways in which legal doctrine should develop over the next few years, in particular in England, Scotland, Canada and the USA, including the problem of causation in asbestos cases. In the area of scientific evidence, its role in the assessment of causation in civil litigation has never been greater. The extent to which such evidence can be admitted and used in causation disputes is controversial. This section of the book is therefore devoted to exploring the role of statistical evidence in resolving causation problems, including recent trends in litigation in the UK, USA, Australia and in France and the question of liability for future harm. In the legal theory area, the so-called NESS (necessary element in a sufficient set) test of causation is discussed and defended. The importance of tort law responding to developing science and observations from the perspective of precaution and indeterminate causation are also explored. The book will be of interest to legal academics, policy makers in the field, specialist legal practitioners, those in the pharmaceutical and bioscience sectors, physicians and scientists.

This discussion of causal uncertainty in tort liability adopts a comparative approach in order to highlight the important normative, epistemological and procedural implications of the various proposed solutions. Occupying a middle ground between the legal perspective and the philosophical views that are at stake when it comes to the resolution of tort law cases in a context of causal uncertainty, the arguments will be of great interest to legal scholars, legal philosophers and advanced tort law students.

A comparative account of the scientific and legal issues related to proof of causation in alleged cases of drug-induced injury, principally in the UK, Europe, and North America. In four case studies (DES, Bondoctin, vaccine damage, and the Gulf War Syndrome) the authors argue that current methods towards causation could be improved by using probabilistic approaches that give greater weight to epidemiological statistics, as refined by the application of Bayes' Theorem. The economic implications of the proposals are discussed. Distributed by ISBS. Annotation copyrighted by Book News, Inc., Portland, OR

Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof. While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article's unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts' adherence to traditional notions of causation against their critics. Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm. Part II discusses plaintiffs' attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs' exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation. Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans' well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant's products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.

Many workers in medicine, healthcare administration, science, and technology, no matter how strong their academic degrees or how distinguished their careers, find themselves baffled, frustrated, and even angered by their encounters with the law. Some of those occasions may lead to the need for a lawyer. But many of the bafflements and frustrations arise from ignorance about what the law is, including how it operates. Over more than a half century of inquiry into the relations between law and science, and through numerous conversations with physicians, scientists, and healthcare professionals whose work rests on technological development, the author realized that they often desire more knowledge about the operations of the law and the legal system. This book seeks to provide basic knowledge about the law in realms where these professionals often encounter it, primarily in areas where activities pose risks of personal injury. This book discusses two basic types of law: civil litigation and other remedies afforded to persons who ascribe injuries to the conduct or product of others, and direct regulation by the government of the levels of safety in those areas. Principal practical applications of this knowledge lie in ways to minimize risk, both in the primary sense and in efforts to avoid litigation over injuries, and in how to present arguments about policy to government officials who write laws and regulations.

Focusing on issues of vital importance to those seeking to understand and reform the tort system, this volume takes a multi-disciplinary approach, including theoretical economic analysis, empirical analysis, socio-economic analysis, and behavioral anal