Academic journal article Defense Counsel Journal

Conning the IADC Newsletters

Academic journal article Defense Counsel Journal

Conning the IADC Newsletters

Article excerpt

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them.

Common Pitfalls of General Causation Proof

Writing in the May 2004 newsletter of the Toxic and Hazardous Substances Litigation Committee, D. Ferguson McNiel III and Alan B. Daughtry of the Houston office of Vinson & Elkins discuss proof in toxic tort and drug cases:

Two causation principles apply in tort cases. General causation concerns whether a substance is capable of causing a particular injury or condition in the general population, while specific causation determines whether a substance actually caused a specific individual's injury or condition. Reference Manual on Scientific Evidence 444 (Federal Judicial Center, 2d ed. 2000); Merrell Dow Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). In most toxic tort and drug cases, direct scientific experimentation cannot be used to determine specific whether a substance potentially causes an injury or condition. Plaintiffs therefore will attempt to establish general causation circumstantially by showing that the incidence of disease or injury is sufficiently elevated owing to exposure to a substance. See generally

Daubert v. Merrell Dow Pharmaceuticals Inc., 43 F.3d 1311, 1320 n.13 (9th Cir. 1995) (on remand).

General causation

Plaintiffs cannot avoid the general causation requirement. The substance must be capable of causing the plaintiff's injury or condition. Many plaintiffs have attempted to bypass the need for this indirect general causation proof by relying on a differential diagnosis--a clinical process whereby a doctor determines what caused a plaintiff's symptoms by ruling out alternative possible causes. This happened in Heller v. Shaw Industries Inc., 167 F.3d 146, 156 (3rd Cir. 1999), and In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 755, 758 (3rd Cir. 1994).

Some courts have held that a differential diagnosis--typically coupled with a strong temporal association between exposure and onset of symptoms--may supplant the need for general causation proof that a substance is capable of causing an injury or condition. See, e.g., Turner v. Iowa Fire Equipment Co., 229 F.3d 1202, 1208-09 (8th Cir. 2000); Heller, 167 F.3d at 154-55; and Zuchowicz v. United States, 140 F.3d 381, 385, 389-90 (2d Cir. 1998). But this approach puts the cart before the horse. One must be able to "rule in" a putative cause before reaching a causal conclusion by ruling out other causes. See Michael B. Kent Jr., Daubert, Doctors and Differential Diagnosis: Treating Medical Causation Testimony as Evidence, 66 DEF. COUNS. J. 525, 532 n.2 (1999).

The trend in drug and toxic tort cases is to require general causation proof: a differential diagnosis is indicative of only specific causation. See, e.g., Goebel v. Denver & Rio Grande Western Railroad Co., 346 F.3d 987, 998 (10th Cir. 2003) (reliable differential diagnosis admissible given "valid showing of general causation"); Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1211 (10th Cir. 2002); Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986, 989 (8th Cir. 2001); Meister v. Medical Engineering Corp., 267 F.3d 1129, 1131 (D.C. Cir. 2001); Black v. Food Lion Inc., 171 F.3d 308, 312-14 (5th Cir. 1999); Cavallo v. Star Enterprises, 892 F.Supp. 756, 771-72 (E.D. Va. 1995), aff'd on same grounds, rev'd on other grounds, 100 F.3d 1150, 1159 (4th Cir.); Coastal Tankships U.S.A. Inc. v. Anderson, 87 S.W.3d 591, 608-09 (Tex. App.--Houston [14th Dist.] 2002, pet. denied). See also Joseph Sanders & Julie Machal-Fulks, The Admissibility of Differential Diagnosis Testimony to Prove Causation in Toxic Tort Cases: The Interplay of Adjective and Substantive Law, 64 LAW & CONTEMP. …

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