TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, January 8, 2010

Stapleton on Causation in Asbestos Cases

Jane Stapleton (Texas/ANU) has posted to SSRN The Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims.  The abstract provides:

For decades the volume of asbestos claims has been a unique and mesmerizing phenomenon. This historic wave of civil claims would never have been possible had U.S. common law courts not adopted two radical dispensations from orthodox rules for the proof of causation, tantamount to causal fictions, that enabled asbestos plaintiffs to establish against each defendant factual causation to the plaintiffs’ entire physical condition for which the defendant would, therefore, be jointly and severally liable. Yet these proof-of-causation doctrines have gone virtually unremarked by courts and the academy. What are these radical proof-of-causation doctrines? Why were they adopted? Why have they yet to face rigorous academic analysis? Why was the Products Liability Restatement silent about them? What might we learn from this apparently profound failure of the restatement process?

This Article is divided into six Parts. Part I describes how, in asbestosis cases, U.S. courts absolve plaintiffs from the requirement of proving the portion of the total injury for which each culpable exposer was responsible, and thereby, in effect, proceed on the fiction that asbestosis is an indivisible injury attracting joint and several liability. Part II investigates the origin of this indivisibility-of-injury doctrine in Borel v. Fibreboard Paper Products Corp, while Part III argues that this special proof-of-causation doctrine could apply to any cumulative condition that the court is prepared to hold is not “reasonably capable of being divided” on the available evidence.

Part IV describes a second, far more radical doctrine concerning proof of causation that U.S. courts developed in claims for asbestos-related cancer whereby a plaintiff is allowed to establish factual causation against a defendant merely by showing that the defendant’s tort exposed the plaintiff to a significant amount of asbestos and therefore to a significant risk of contracting an asbestos-related cancer. In effect, this allows the plaintiff to proceed on the basis that each significant exposure to the risks of asbestos was causally involved in the triggering of the cancer. Functionally, this doctrine is tantamount to the fiction that asbestos-related cancer is contracted by a threshold mechanism, which in turn explains why this doctrine is accompanied by a rule of joint and several liability. Part V argues that this exposure-to-risk doctrine, which allows proof of causation of a condition by merely proving exposure to the risk of that condition, could apply whenever a plaintiff sues for an indivisible condition (such as a cancer), the mechanism of which is unknown, and the defendant’s tort made a substantial contribution to the risk of that condition being contracted. Such a rule has a truly explosive potential in the field of toxic torts beyond asbestos. Part VI investigates why these two extraordinary proof-of-causation doctrines have been neglected by the parties to asbestos claims, the academy, and the American Law Institute itself.

(Via Solum/Legal Theory Blog)


January 8, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 7, 2010

CA: Schwarzenegger Focuses on Tort Reform

California Governor Arnold Schwarzenegger delivered his State of the State address yesterday.  At the top of his agenda sits tort reform.  Specifically, he seeks changes in the rules for class action and product liability suits, as well as a cap on punies.  LegalNewsline has the details.


January 7, 2010 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 6, 2010

Top 10 Recent SSRN Torts & Products Liability Downloads

The top 10 SSRN Torts & Products Liabiltiy papers uploaded over the last 60 days are:

Rank Downloads Paper Title
1 123 The Law Applicable to Secondary Liability in Intellectual Property Cases
Graeme B. Dinwoodie, Rochelle Dreyfuss, Annette Kur,
Date posted to database: November 9, 2009
2 79 Getting to Causation in Toxic Tort Cases
David E. Bernstein,
Date posted to database: December 21, 2009
3 74 Tort Liability Law of the People's Republic of China (2d official discussion draft December 21, 2008)
George W. Conk, Wang Zhu,
Date posted to database: November 11, 2009
4 71 Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims
Betsy Grey,
Date posted to database: November 4, 2009
5 64 Teaching with Emotion: Enriching the Educational Experience of First-Year Law Students
Grant H. Morris,
Date posted to database: November 22, 2009
6 63 Embedded Aggregation in Civil Litigation
Richard A. Nagareda,
Date posted to database: November 15, 2009 
7 55 The Assessment of Compensatory Damages for Medical Error by the Greek Courts: An Economic Analysis
Spyros Vliamos, Aristides N. Hatzis
Date posted to database: November 9, 2009
8 41 Imposing Tort Liability on Websites for Cyberharassment
Nancy S. Kim,
Date posted to database: November 18, 2009
9 37 The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein
Eric Claeys,
Date posted to database: December 17, 2009
10 36

Environmental Liability
Michael G. Faure,
Date posted to database: November 12, 2009


January 6, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 5, 2010

Twitter Libel?

In this week's Writ column, Julie Hilden analyzes the defamation suit recently filed against Kim Kardashian based on her "tweets" about the Cookie Diet.  A copy of the complaint is available here (pdf).


January 5, 2010 in Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 4, 2010

TN: Post Tort Reform Med Mal Filings Down 60%

In 2008, the Tennessee legislature passed a law requiring a third-party certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit.  In 2009, medical malpractice filings declined 60%.  Nashville Public Radio has the story.


January 4, 2010 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)