Scientific Uncertainty and Causation in Tort Law

By Geistfeld, Mark | Vanderbilt Law Review, April 2001 | Go to article overview

Scientific Uncertainty and Causation in Tort Law


Geistfeld, Mark, Vanderbilt Law Review


INTRODUCTION

Tort cases involving scientific uncertainty frequently present courts with a difficult causation issue. In the paradigmatic case, the available scientific evidence indicates that a substance might be hazardous, but does not establish that the substance is hazardous.1

When presented with such evidence, courts must decide whether the plaintiff has adequately proven that her injury was tortiously caused by the substance.

This causal issue potentially arises whenever we do not fully understand how a substance interacts with the body and produces an adverse health outcome. We do not, for example, adequately understand the etiology of cancer.2 To assess whether a substance may cause injuries with unknown etiology, we observe health outcomes in populations of animals exposed to large amounts of the substance, study the biochemical effects of the substance on cells, organs, and embryos, and compare the substance's chemical composition to other known health hazards.3 Though informative, these studies usually cannot determine whether the substance is hazardous. That determination typically requires a large-scale study comparing the incidence of adverse health outcomes in groups of exposed and non-exposed individuals, or comparing the incidence of exposure across injured and healthy groups. These epidemiological studies are expensive, time-consuming, and require that a large number of people be exposed to the substance. Without such study, however, the hazardous properties of the substance often cannot be established with existing scientific methods. Consequently, substances are often introduced into the environment before there is conclusive scientific evidence regarding their health hazards. How should this scientific uncertainty affect the tort rights of an individual who has been exposed to such a substance and has the type of injury, such as cancer, that is plausibly attributable to the substance in light of the available scientific evidence?

After the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,4 an increasing number of courts have held that causation must be established by epidemiological evidence showing that a population of individuals exposed to the substance faced at least twice the risk of suffering the injury in question.5 According to these courts, such epidemiological studies are the only reliable evidence showing that the substance more likely than not caused the plaintiffs injury.6 Numerous commentators criticize this evidentiary requirement, arguing that it is inconsistent with fundamental tort principles, particularly when applied to substances that have not been subjected to epidemiological study.7 According to these critics and others, the lack of conclusive scientific evidence, and the unfairness of placing the burden of factual uncertainty on plaintiffs, require the adoption of special rules, such as placing the burden on a defendant manufacturer to prove that its product is not hazardous.8

The vast majority of potentially hazardous substances have not been subjected to epidemiological study,9 creating an evidentiary gap of potential concern to the tort system.10 In some important contexts involving evidentiary gaps, application of ordinary rules would undermine tort norms, so the tort system has adopted special rules to redress the inequity.ll An important question, then, is whether cases of scientific uncertainty involve the type of problem that justifies a special evidentiary rule for establishing causation.

As Part I shows, the critics of the epidemiological evidentiary requirement have not justified a special rule for cases of scientific uncertainty. Part II then explains why there is no need to adopt new evidentiary rules in the products liability context. In the paradigmatic case involving cancer, for example, tort liability can be imposed on product sellers for not adequately warning about the scientific evidence suggesting that the product is carcinogenic.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Scientific Uncertainty and Causation in Tort Law
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.