Thursday, May 14, 2020

The Commonality of Causation

I hope everyone is navigating the pandemic healthy and (relatively) sane. I know I have not posted in a while, but I want to share with everyone a lecture I gave at Ohio Northern University School of Law discussing the causation element in mass tort cases. I focus specifically on the Roundup MDL in the Northern District of California. I really appreciate the sophisticated audience this blog attracts. Accordingly, I would love to hear your comments on the lecture, which can be found here. Below is the abstract:

This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School of Law, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is “common,” or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of that claimant. For that reason, courts have often refused to certify class actions, or have otherwise been reluctant to utilize collective procedures, where issues of causation predominate the proceedings. It is thought that in such cases plaintiffs are entitled to a more tailored, individualized hearing to accurately assess causation consistent with due process. This essay questions this common-sense notion that the issue of causation is an “individual” issue and argues that causation is actually much more “common” when one examines the causation element and its proof in greater depth. The essay concludes by suggesting ways in which the “commonality” of causation can be addressed in litigation to better fulfill the deterrence and compensation objectives of the litigation.

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