Thursday, April 2, 2009
In the final panel of today, David Robertson (Texas) and Joe Sanders (Houston) discussed Causation in the Third Restatement. The panel was moderated by Wendy Parker (Wake Forest). Don Cowan (Ellis & Winters) and Steve Gold (Rutgers) provided commentary.
Robertson presented "Causation in the Third Torts Restatement: Three Arguable Mistakes" (pdf).
Robertson noted three disagreements with the R3 in the area of factual causation: (1) the shift from the substantial factor approach of R2's Section 432 to the causal set approach of the R3's Section 27; (2) the move of trivial contribution cases to proximate cause in Section 36; and (3) new comment d, which Robertson views as "jettisoning" the line of cases based on Anderson v. Minneapolis, St. P. & S.S.M. Ry., 179 N.W. 45 (Minn. 1920).
In the Q&A, Jane Stapleton (Texas) was "troubled" by Robertson's approach, and did not believe that rejection of the causal set approach provided a coherent approach where undifferentiated inputs contributed to the one harm.
In the Q&A, Bill Powers (Texas and co-Reporter for the R3) responded to Roberston's point about Anderson. In his view, causation is not a fact that exists in the world, it is the way we think about the world to handle every day problems. Mike Green (Wake Forest and co-reporter for the R3) likewise expressed his concern that we should not use common every day notion of "cause."
Ben Zipursky (Fordham) commented in the Q&A that the R3 does keep the substantial factor standard, but as part of proximate cause in Section 36. As Zipursky explained, "trivial" contributions are really the converse of "substantial:" contributions.
Sanders discussed "The Controversial Comment C" (pdf).
Sanders took on the issue of causation in toxic tort cases. First, Sanders explained the genesis of the controversy as whether to conceptualize specific & general causation as elements of the tort or as indicia of causation to consider. Sanders noted that the R3 takes the position that specific & general causation are not elements, under which each need to be proven. While he noted the truth of the position that there is but one causation element, he argued, that the R3 misleads because, as de facto matter, both need to be proven. Second, Sanders looked at the R3's distinction between admissibility (an evidence question) and sufficiency (a torts question). Disagreeing with the R3, Sanders viewed the issue as a "torts-evidence emulsion," where the two things never come apart. Sanders noted the increasing role of science in decisions on causation.
In his commentary, Gold first addressed Sanders' point on specific vs. general causation. Gold noted that comment c was controversial because it obliquely suggested that the plaintiff might not need to prove both specific and general causation.