Liability for Possible Wrongs: Causation, Statistical Probability and the Burden of Proof, in Symposium, The Frontiers of Tort Law (original) (raw)
Related papers
goldberg, Richard S., Perspectives on Causation …, 2010
forthcoming in Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (Hart Publishing, 2010) This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim's expected-albeit not yet materialized-harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person's risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to the victim to decide whether to recover for his or her expected harm, or else wait and see if the risk materializes and recover only if it does. We observe that allowing victims to make this choice might create a collective action problem. Because expedited compensation for a victim's expected harm erodes the wrongdoer's ability to compensate future claimants, victims would opt for an early recovery for expected harm even when their substantive remedial preferences are different. We demonstrate, however, that this problem can be resolved.
General Causation at a Crossroads in Toxic Tort Cases
Penn State Law Review, 2004
The author practices Causation: Is There a Need for Liability Reform?, 64 LAW & CONTEMP. PROBS. 5, 46 (2001) (contending that tort law may have to be modified to deal with the lack of understanding of the causal properties of toxic substances); Glenn Shafer, Causality: Causality and Responsibility, 22 CARDOZO L. REV. 1811, 1834 (2001) (relying on Berger, advancing a probability claim that a defendant should pay under certain circumstances regardless of the harm caused); Wendy E. Wagner, Choosing Ignorance in the Manufacture of Toxic Products, 82 CORNELL L. REV. 773, 852 (1997) (arguing that causation requirements should be reformed because they provide manufacturers with an incentive to remain ignorant about the hazards of their products); see also Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 174 (E.D.N.Y. 2001) (Hon. Jack B. Weinstein) (asserting that "[t]here is considerable merit in Profesor [sic] Margaret A. Berger's suggestion that traditional general causation proof is so difficult in toxic tort cases that it should not be required, but that alternative elements of the cause of action should suffice"). Regarding Blue Cross & Blue Shield of NJ., Inc., it should be noted that Berger's article articulating the noncausal model appeared as part of a Columbia Law Review symposium issue in tribute to Judge Weinstein. Moreover, Weinstein and Berger have collaborated. See JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 404.12[3] (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 1997). 3. See, e.g., In re Hanford Nuclear Reservation Litig. v. E. I. Dupont, 292 F.3d 1124, 1137 (9th Cir. 2002) (discussing "how epidemiological proof can be adapted to meet the 'more likely than not' burden of proof by requiring statistics to reflect a relative risk factor of 2.0 before a plaintiff can recover"); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1315 n.16 (11 th Cir. 1999) (stating that the threshold for concluding that a toxic substance more likely than not caused a disease is 2.0, because a relative risk greater than 2.0 implies a greater than 50 percent likelihood of causation); Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 591 (D.N.J. 2002) (asserting that causality may be inferred from an epidemiological assessment of relative risk, and therefore that "the threshold for concluding that an agent was more likely than not the cause of an individual's disease is a relative risk greater than 2.0") (quoting Michael D.
Is the Risk–Liability Theory Compatible with Negligence Law?
Legal Theory, 2005
David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy's Risk-liability theory, and that such an approach is a promising means both for understanding the moral basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law. We call these principles Fault and Causation, not because they define those concepts or explain them for us, but they show how the two pillars of negligence law-fault and causation-work in terms of rights, harm, and compensation. While clearly very rough, these two principles provide a reasonably neat explanation of negligence law. Moreover, one could readily extend this account to other forms of tort. For instance, in lieu of Fault we might suggest a "Trespass idea", to the effect that we have a right that others not intentionally interfere with our bodies in a direct manner. The conjunction of Trespass and Causation would give a simple picture of the tort of trespass. This simple picture could no doubt be criticised on many grounds. Our aim is not to engage in such criticism, but to attempt to support an alternative picture. We think the alternative has some advantages in explaining or justifying various ways in which we might adopt non-standard compensation practices. Consider first, the sorts of non-standard cases we are interested in: Multiple fault, single cause: In some well known cases, 1 it is clear that more than one party was at fault, and that one of those parties caused an injury through that fault. This can lead to a surprising difficulty for the injured party in seeking recovery: the presence of additional faulty parties makes it unusually difficult to establish that any one party was causally responsible for the harm. In effect, then, a wrongdoer benefits by being in the company of a similar wrongdoer at the time. Probabilistic cause: It may happen that a party is exposed to a risk of an injury occurring, the injury may subsequently occur, but it remain unclear whether it was caused by the negligence of the plaintiff or by other, non-tortious means. 2 Suppose, for instance, a defendant carelessly exposes plaintiffs to a carcinogen, thus increasing by 5% their chance of contracting cancer. Suppose, however, there is a preëxisting risk of 10% that an individual will get cancer from other causes. If a plaintiff develops cancer and mounts a claim against the defendant, they will struggle to show that the exposure to the carcinogen caused their injury. Nonetheless, in a large population, the defendant will most likely cause one third of the cancers that occur in the exposed group.
Causal Responsibility for uncertainty and risk in toxic torts
2010
Despite the exceptional nature of Fairchild v Glenhaven Funeral Services Ltd [2003]?1 AC 32, its formulaic application in low exposure mesothelioma cases has ramifications for the coherence and scope of causal responsibility for harm in the English law of negligence. Existing threshold conditions for its application are either so fluid that the exception could become the norm in all competing cause cases, or they are unacceptably arbitrary. While the formulaic application of the exception in grave harm toxic tort cases can be understood as a chemo-phobic over-reaction to risk, its application in low exposure cases – that is to say, where tortious exposures are less than unavoidable background environmental exposure – cannot be rationally justified. This article urges the Supreme Court of England in Sienkiewicz v Greif (UK) Ltd [2010]?2 WLR 951 and Willmore v Knowsley Metropolitan Borough Council [2009] EWCA 1211 Civ to adopt an overarching threshold condition delimiting the applicat...
Philosophy and Public Affairs, 25(3) (1996): 238–62, 1996
Standard theories of liability say that X is liable to Y only if Y was harmed, only if X caused Y harm, and (usually) only if X was at fault. This article offers a series of criticisms of each of these claims, and use them to construct an alternative theory of liability in which the nature of X's having imposed a risk of harm on Y is central to the question of when X is liable to Y, and for how much. The article ends with some conjectures on ignorance as an excusing condition.
Uncertain Causation in Tort Law
Cambridge: Cambridge University Press (343 pp.). ISBN: 978-1-107-12836-1., 2015
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.