T o x i c T o r t s a n d E n v i r o n m e n ta l L a w
Reining in the
Substantial Factor
Test for Causation
Enough Is Enough
By Michele R. Kendus
and Lucas W.B. Chrencik
“[The] invasion of one’s
mind by ready-made
phrases… can only
be prevented if one is
constantly on guard
against them, and every
such phrase anaesthetizes
a portion of one’s brain.”
George Orwell, Politics and
the English Language, 1946.
How much is enough? Plaintiffs’ attorneys say “enough is
enough” in a matter of fact way to urge that any exposure
will do. Defense attorneys say “enough is enough, already!”
in exasperation at the ludicrous lengths to which the “substantial factor” test for causation is taken.
So how do we rein in the experts, judges,
and juries to a sensible causation analysis? We must first be certain that we are on
guard against the ready-­made phrase “substantially contributing factor” uttered by
plaintiffs’ counsel and their experts in various forms like “substantial contributing
cause,” “substantially contributed to,” or
“was a substantial factor in causing.”
As the Pennsylvania judiciary has pointed
out: “Just because a hired expert makes a legal conclusion does not mean that a trial
judge [or defense attorney] has to adopt it…
if it is devoid of common sense… suppose an
expert said that if one took a bucket of water and dumped it into the ocean, that was
a ‘substantial contributing factor’ to the size
of the ocean.” Gregg v. V-J Auto Parts, Inc.,
596 Pa. 274, 286, 943 A.2d 216, 233 (2007)
(quoting Summers v. Certainteed Corp., 886
A.2d 240, 244 (Pa. Super. Ct. 2005)).
Courts and legal scholars alike have recognized misuse and abuse of the substantial factor test, to the extent that some argue
against its continued application. See Sanders, Joseph, et al., The Insubstantiality of the
“Substantial Factor” Test for Causation, 73
Mo. L. Rev. 63 (2008). Indeed, the Restatement (Third) of Torts: Liability for Physical
and Emotional Harm, §26 (2010), seems to
have abandoned the substantial factor test.
Recognizing these potential and actual
shifts in the law, a toxic tort defense attorney must have a firm grasp on the factual
and legal principles of causation to prevent
the case from being shoved into the substantial factor corner if it doesn’t belong
there. Likewise, the savvy defense attorney will understand the theories of factual
and legal causation in order to build an
effective defense against attempts to relax
the burden of proof under the substantial
factor test. This article provides the legal
backdrop and a case example to build such
effective defenses.
Causation Analysis—
Back to the Basics
The first step in a proper causation analy-
■ Michele R. Kendus is a partner and Lucas W.B. Chrencik is an associate at Goodell, DeVries, Leech &
Dann LLP in Baltimore. Ms. Kendus defends clients facing toxic tort, pharmaceutical, medical product liability, and medical malpractice claims. Mr. Chrencik focuses his practice in product liability and medical malpractice defense and is a member of the Young Lawyers Committee.
© 2013 DRI. All rights reserved.
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T o x i c T o r t s a n d E n v i r o n m e n ta l L a w
sis is to distinguish between “factual causation” and “legal causation.” The Restatement
(Third) of Torts: Liability for Physical and
Emotional Harm, §26 (2010), explains that
“[tort­ious] [c]onduct is a factual cause of
harm when the harm would not have occurred absent the conduct.” The familiar
“but for” test is the standard for determining factual cause, which is also described as
Legal scholarshave
argued against continued
use of the substantial
factor test due to the
“overuse, abuse, and the
confusion generated by it.”
a necessary condition for the outcome. Id. at
cmt. b. Legal cause is described by the theory of proximate causation: the harm complained of must be the direct result of the
risks presented by the tortious conduct. Restatement (Third) of Torts: Phys. & Emot.
Harm, §29 (2010). Many jurisdictions “have
historically followed the so-called ‘but for’
causation-­in-­fact test, that is, ‘to constitute
proximate cause there must be such a natural, direct, and continuous sequence between the negligence act [or omission] and
the [plaintiff’s] injury that it can reasonably be said that but for the [negligent] act
[or omission] the injury would not have occurred.’” Stahl v. Metro. Dade County, 438
So. 2d 14, 17–18 (Fla. Dist. Ct. App. 1983)
(citing Pope v. Pinkerton-­Hays Lumber Co.,
120 So. 2d 227, 230 (Fla. Dist. Ct. App. 1960),
cert. denied, 127 So. 2d 441 (Fla. 1961), relying on Seaboard Air Line Ry. v. Mullin, 70
Fla. 450, 70 So. 467, 470 (1915)). “This has
proven to be a fair, easily understood and
serviceable test of actual causation in negligence actions.” Id.
The substantial factor test initially arose
to address specific situations involving
multiple sufficient causes where the “but
for” test fails to find liability. The classic
case, Anderson v. Minneapolis, St. Paul &
Sault Ste. Marie. Ry. Co., 146 Minn. 430, 179
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N.W. 45 (1920), first applied the substantial
factor test to a situation where two separate fires (one natural and one the result of
negligence) merged and burned the plaintiff’s property, but either fire alone would
have been sufficient to cause the identical harm. In that case, the “but for” test
would have reached an unfair result, so the
court applied the rationale that if the negligently set fire “was a material element”
in the property destruction, the tortfeasor
would not escape liability. Id. at 439, 179
N.W. at 49.
The Restatement adopted the substantial
factor test, stated in Restatement (Second)
Torts as the standard by which a defendant’s conduct will be deemed a cause of
the plaintiff’s injuries:
The actor’s negligent conduct is a legal
cause of harm to another if
(a) his conduct is a substantial factor in
bringing about the harm, and
(b) there is no rule of law relieving the
actor from liability because of the
manner in which his negligence has
resulted in the harm.
Id. (citing Restatement (Second) of Torts
§431 (1965); see also Borg-­Warner v. Flores,
232 S.W.3d 765, 770 (Tex. 2007) (“[w]e have
recognized that “[c]om­mon to both proximate and producing cause is causation in
fact, including the requirement that the
defendant’s conduct or product be a substantial factor in bringing about the plaintiff’s injuries.”); Moeller v. Garlock Sealing
Technologies, LLC, 660 F.3d 950, 953 (6th
Cir. 2011) (“[t]o prevail on a negligence
claim, Kentucky law requires a plaintiff
to prove that a defendant’s conduct was a
substantial factor in bringing about the
harm.”). Comment a to the Restatement
explains that the test was meant to add an
additional element to the “but for” test,
stating that “it is not enough that the harm
would not have occurred had the actor not
been negligent… the negligence must also
be a substantial factor in bringing about
the plaintiff’s harm.” Restatement (Second)
of Torts §431 cmt. a (1965). Comment b
explains that the test is not intended to supplant the “but for” analysis in cases where it
is clear that the harm was caused by either
the actor’s negligence or some other cause,
and “the harm is not due to the combined
effects of both.” Id. at cmt. b. Section 432(2)
of the Restatement (Second) adopts the
Anderson analysis where two forces, one
negligent and the other not, are each sufficient to bring about the same harm, and
both are actively operating “the actor’s negligence may be found to be a substantial
factor” in causing the harm. Restatement
(Second) of Torts §432(2) (1965).
While some courts confine the substantial factor test only to those situations
involving multiple sufficient causes, and
maintain the “but for” test to determine
factual causation, others have expanded it
to supplant the “but for” test. Legal scholars have argued against continued use of
the substantial factor test due to the “overuse, abuse, and the confusion generated
by it.” See Restatement (Third) of Torts:
Phys. & Emot. Harm §26 cmt. j (2010);
see also Sanders, supra. The Restatement
commentators note that “[t]he ‘substantial factor’ rubric is employed alternately
to impose a more rigorous standard for
factual cause or to provide a more lenient
standard” in a way that is inconsistent
with the test adopted in the Restatement
Second of Torts §431. Id. These authors
convincingly argue that all situations can
be resolved under a “but for” analysis with
the incorporation of comparative responsibility, comparative contribution, and
modification of joint and several liability
to determine degrees of liability without disturbing the idea that “causation
in fact is an all-­or-­nothing proposition…
specific conduct is either a cause in fact,
or it is not.” Restatement (Third) Torts:
Phys. & Emot. Harm §26 cmt. j, Reporter’s
Note (2010) (quoting Waste Magmt., Inc.
v. S. Cent. Bell Tel. Co., 15 S.W.3d 425, 433
(Tenn. Ct. App. 1997)).
The “Substantiality” Requirement
Although not uniformly recognized,
important to the concept of the “substantial factor test” is the notion that the effect
of the allegedly negligent conduct must rise
above the level of something that is merely
“more than nothing.” Dixon v. Ford Motor
Co., 206 Md. App. 180, 195, 47 A.3d 1038,
1048 (2012). See also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162
(4th Cir. 1986) (rejecting plaintiff’s argument in an asbestos case that any evidence
of workplace exposure raises a jury question as to whether the product contributed to the plaintiff’s disease, requiring
instead a showing of more than a casual or
minimum contact with the product). The
Commentary to Restatement (Second) of
Torts §431 elaborates on the substantiality requirement:
The word “substantial” is used to denote
the fact that the defendant’s conduct has
such an effect in producing the harm
as to lead reasonable men to regard it
as a cause, using that word in the popular sense in which there always lurks
the idea of responsibility, rather than in
the so-called “philosophic sense,” which
includes every one of the great number
of events without which any happening
would not have occurred. Each of these
events is a cause in the so-called “philosophic sense,” yet the effect of many of
them is so insignificant that no ordinary
mind would think of them as causes.
Restatement (Second) of Torts §431 cmt.
a (1965).
Notwithstanding this “substantiality”
requirement, some courts have accepted
plaintiffs’ position that evidence of any
exposure to the product at issue is sufficient to meet their burden of persuasion on
causation, as long as an expert will repeat
the “substantial contributing factor” mantra. In Flores, prior to being reversed by
the Texas Supreme Court, the Texas Court
of Appeals had stated “[i]n the context of
asbestos-­related claims, if there is sufficient evidence that the defendant supplied
any of the asbestos to which the plaintiff
was exposed, then the plaintiff has met
the burden of proof.” Borg-­Warner Corp. v.
Flores, 153 S.W.3d 209, 213 (Tex. App. 2004)
rev’d, 232 S.W.3d 765 (Tex. 2007) (emphasis added). Reversing, the Texas Supreme
Court in Borg-­Warner Corp. v. Flores, 232
S.W.3d 765 (Tex. 2007), held that a plaintiff
in an asbestos case may not “simply establish that ‘some’ exposure occurred.” Id. at
773. “Because most chemically induced
adverse health effects clearly demonstrate
‘thresholds,’ there must be reasonable evidence that the exposure was of sufficient
magnitude to exceed the threshold before
a likelihood of ‘causation’ can be inferred.”
Id. The court required the plaintiff to show
the threshold amount of asbestos exposure needed to cause asbestos related injuries and a showing that the plaintiff was,
in fact, exposed to that threshold amount.
Thus, the court rejected the theory that “‘if
the plaintiff can present any evidence that
a company’s asbestos-­containing product
was at the workplace while the plaintiff
was at the workplace, a jury question has
been established as to whether that product proximately caused the plaintiff’s disease.” Id. (citing favorably to Lormann v.
Pittsburgh Corning Corp., 782 F.2d 1156,
1162 (4th Cir. 1986)). Put another way, the
Flores court required the plaintiff to prove
the dose of the plaintiff’s exposure, and
that such dose was sufficient to cause some
injury.
Like the Texas Supreme Court, other
courts have begun to tighten the “relaxed”
standard of proof born from the too broad
application of the substantial factor test.
Plaintiffs may find that they can no longer
easily meet their burden of proof through
the mere evidence of unmeasured exposure and the opinion of an expert who is
simply parroting the ready-made phrase
“substantial contributing factor.” Instead,
these courts are requiring that the plaintiff provide evidence to quantify exposure
and establish that the level of exposure was
sufficient to cause injury.
For example, two cases recently out of
the courts of Pennsylvania and Maryland
have elaborated on the type of evidence
that plaintiffs must provide in order to permit the jury to determine the question of
whether exposure to a product caused an
individual’s injury. Like Flores, both cases
deal with asbestos exposure and whether
a plaintiff’s expert may testify that ‘any
exposure’ constitutes a substantial contributing factor to the plaintiff’s injury.
In Betz v. Pneumo Abex, LLC, 44 A.3d 27
(Pa. 2012), the plaintiff sought to offer the
so-called “each and every asbestos fiber”
expert opinion that:
Asbestos-­related mesothelioma, like
other diseases induced by toxic exposures, is a dose response disease: each
inhalation of asbestos-­containing dust
from the use of products has been shown
to contribute to cause asbestos-­related
diseases, including mesothelioma. Each
of the exposures to asbestos contributes to the total dose that causes mesothelioma and, in so doing, shortens the
period necessary for the mesothelioma
to develop…. [E]ach exposure to asbestos is therefore a substantial contributing factor in the development of the
disease that actually occurs, when it
occurs.
Id. at 31. The trial court excluded plaintiff’s causation expert, appreciating the
trial court’s common sense question “if
all [that plaintiff’s expert] could say is that
a risk attaches to a single asbestos fiber—
[how is it] that he could also say that such
risk is substantial when the [plaintiffs] may
have been (and likely were) exposed to millions of other fibers from other sources including background exposure [?]” Id. at 55.
The Pennsylvania Supreme Court affirmed
the trial court on the grounds that the
opinion was not only fundamentally at
odds with the substantial factor test, it was
also at odds with the expert’s own concession because “one cannot simultaneously
maintain that a single fiber among millions
is substantially causative, while also conceding that a disease is dose responsive.”
See id. at 56. The court further reasoned:
We do not think it is a viable solution
to indulge in a fiction that each and
every exposure to asbestos, no matter
how minimal in relation to other exposures, implicates a fact issue concerning substantial-­factor causation in every
‘direct-­evidence’ case. The result, in our
view, is to subject defendants to full
joint-­a nd-­several liability for injuries
and fatalities in the absence of any reasonably developed scientific reasoning
that would support the conclusion that
the product sold by the defendant was a
substantial factor in causing the harm.
Id. at 56–57.
In a similar more recent opinion, Maryland’s Court of Special Appeals precluded
an expert’s opinion that “every exposure
to asbestos is a substantial contributing
cause and so [ ] exposure [to the defendant’s product] would be a substantial
cause even if [the plaintiff] had other exposures.” Dixon v. Ford Motor Co., 206 Md.
App. 180, 196, 47 A.3d 1038, 1047 (2012).
The court reasoned:
Like the closely-­related concept “proximate cause,” the term “substantial
contributing factor” goes beyond the
logically simple question of whether the
defendant’s action (or inaction) was a
“necessary” or “sufficient” condition of
harm to the plaintiff. Both proximity
and substantiality describe whether “the
defendant’s conduct has such an effect in
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producing the harm as to lead reasonable men to regard it as a cause, using
that word in the popular sense, in which
there always lurks the idea of responsibility[.]” Restatement (Second) of Torts
§431 (1965). Where the question of causation is probabilistic, “substantiality”
and “responsibility” necessarily imply
some test of magnitude, viz., how much
Courts are requiring
that the plaintiff provide
evidence to quantify
exposure and establish that
the level of exposure was
sufficient to cause injury.
must exposure have increased one’s risk
of harm in order to hold the responsible
party liable?
…
If risk is our measure of causation, and
substantiality is a threshold for risk,
then it follows—as intimated above—
that “substantiality” is essentially a burden of proof. Moreover, we can explicitly
derive the probability of causation from
the statistical measure known as “relative risk,” as did the U.S. Court of
Appeals for the Third Circuit in DeLuca
v. Merrell Dow Pharmaceuticals, Inc.,
911 F.2d 941, 958 (3d Cir. 1990), in a
holding later adopted by several courts.
For reasons we need not explore in
detail, it is not prudent to set a singular
minimum “relative risk” value as a legal
standard. But even if there were some
legal threshold, [plaintiff’s expert] provided no information that could help the
finder of fact to decide whether the elevated risk in this case was “substantial.”
Id. at 193–95, 47 A.3d at 1046–47. Because
the plaintiff’s expert’s opinion that “every
exposure to asbestos is a substantial contributing cause” implied only that the
plaintiff’s exposure to asbestos increased
her risk of developing mesothelioma by
“more than nothing,” such an “infinitesi-
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mal change in risk cannot suffice to maintain a cause of action in tort.” Id. at 196, 47
A.3d at 1047. Accordingly, the Maryland
Court of Special Appeals “join[ed] with
several other courts in requiring quantitative epidemiological evidence” before permitting the jury to determine the question
of whether the plaintiff’s exposure caused
her injuries. Id. at 197, 47 A.3d at 1048 (citing Bland v. Verizon Wireless, L.L.C., 538
F.3d 893, 898 (8th Cir. 2008); Lindstrom v.
A-C Product Liability Trust, 424 F.3d 488,
498 (6th Cir. 2005); Mitchell v. Gencorp Inc.,
165 F.3d 778, 781 (10th Cir. 1999); Moore v.
Ashland Chem. Inc., 151 F.3d 269, 278 (5th
Cir. 1998)) (emphasis added).
The potential impact of these holdings
on future toxic exposure cases is, for obvious reasons, huge. Attorneys must continue to provide the court with a thorough
analysis of factual causation to persuade
the court not to stray from the intent of
the substantial factor test to limit, not
expand, liability. Under the proper analysis, courts will no longer permit plaintiffs to shirk their burden of proof through
nothing more than their expert’s readymade phrase “substantial contributing factor.” Courts will demand that plaintiff’s
experts quantify the exposure and the
injury (or increase in risk of injury) caused
by the exposure to assist the jury in determining whether the exposure was a substantial contributing factor in causing the
plaintiff’s alleged injuries.
Such a requirement only makes sense,
because it removes from the purview of the
expert an issue that ought to be within the
sole purview of the fact finder. The concept
of a “substantially contributing factor” is
not one typically considered by physicians
in a clinical setting to describe the etiology
of disease. Indeed, every expert who parrots the words should be put to the test in
deposition: “Doctor, in your clinical practice have you ever gone about the task of determining if a certain factor ‘substantially
contributed to’ a patient’s disease?” The answer will undoubtedly be a wide-eyed “No.”
The expert should next be made to explain
what, then, he means when he utters those
words. The answers compiled in various
depositions in our practice range from “my
wife who is a lawyer explained that it meant
each exposure must be capable of causing
the same injury” to “according to Webster’s,
it is something that is measurable, significant and that things would be different
absent it,” and even the patently incorrect
“greater than 50 percent.”
Case Example
Investigation and Case Work Up
Before ever asking whether an exposure is
a substantial factor in causing injury, discovery should be designed to define the
injury, establish the onset of injury, quantify dose, and establish what particular
injury occurs at certain doses. This inquiry
will guide whether a substantial factor
analysis is appropriate at all, or whether a
stronger and more effective defense can be
made that the exposure was not responsible
for any injury, or only for a distinguishable
part of the injury. This requires close work
with defense experts and careful review
of any prior testimony from the plaintiff’s experts who may have described what
injury occurs at particular doses. Additionally, exhaustive investigation of medical
and other records to establish pre-­exposure
level of functioning and a chronology of
other exposures or causative factors is key.
As a case example, we present our experience dealing with experts in lead paint
litigation filed by plaintiffs who allege that
they were exposed to lead at a young age
(typically between birth and six years old)
from homes in Baltimore that contained
deteriorated lead-based paint. In these
cases, the plaintiffs claim that the lead
exposure caused them to suffer a loss in
intelligence quotient (IQ) and other neurocognitive deficits, academic and vocational difficulties and, ultimately, loss of
earning potential.
In many lead cases, the plaintiff lived in
or visited numerous properties containing
lead-based paint during the time that blood
lead levels were measured. Blood lead levels (BLLs) are routinely checked by pediatricians as a screening measure between
the ages of 18 months and three years,
expressed in micrograms per deciliter (“µg/
dl”). Because the cases raise issues of multiple exposures to lead, as well as other factors that impact cognitive development,
courts generally utilize the substantial factor test to determine whether exposure at
an individual defendant’s property caused
the plaintiff’s alleged injuries. See Bartholomee v. Casey, 103 Md. App. 34, 56, 651 A.2d
908, 918 (1994) (“Where the conduct of a
defendant was a substantial factor in bringing about the suffering of an injury, such
conduct will be deemed to have “caused”
the injury.”) (citing W. Page Keeton, et al.,
Prosser And Keeton On Torts, §41, at 266–
68 (5th ed. 1984 & Supp. 1988)).
Typically, in an effort to meet the
requirements of the substantial factor test,
plaintiffs rely on the testimony of medical
doctors. These experts offer expert opinions that the epidemiological literature
finds an association between lead exposure and decreased IQ, as well as other
neurocognitive functioning (general causation). The experts then simply extrapolate from the general literature to opine
that the individual plaintiff’s IQ would
have been higher, and the neurocognitive
deficits would not have been as significant
if the plaintiff had not been exposed to
lead. The experts typically apply a formula
to calculate how many IQ points the individual lost based on his or her peak BLL.
The medical expert will also offer a typical opinion that any house identified where
the plaintiff lived or visited is a “substantial contributing factor” to both the elevated BLLs and neurocognitive deficits.
The cases raise several questions regarding 1) whether the overall lead exposure
caused or substantially contributed to cognitive deficits, 2) whether an individual
defendant’s property caused or substantially contributed to the elevated blood lead
levels, and then 3) whether an individual
defendant’s property caused or substantially contributed to the cognitive deficits.
The case example will focus on the second
and third questions concerning the individual defendant’s contribution.
In our case, a plaintiff filed a claim
against several defendant property owners, and ours was the only one financially
viable to defend the claim. The evidence
developed through discovery established
chronology and documented blood lead
levels, with our client’s property identified
as Property B (see Table 1, page 66).
It was anticipated that the plaintiff’s
medical expert would opine in typical form
that each property lived in or visited by the
plaintiff was a “substantial contributing factor” to the elevated blood lead levels and resultant neurocognitive deficits, including IQ
loss. A careful assessment of the facts de-
veloped in discovery prior to the expert’s
deposition revealed that this was a case
that might not deserve to get shoved into
a substantial cause corner, since the peak
blood lead level of 18 µg/dl occurred prior
to the plaintiff ever setting foot at the client’s property. Our argument would be that
our client could not be a cause in fact at all,
at least for the decreased IQ, if the expert
opined that the IQ loss was determined by
the peak blood lead level. Knowing that in
our jurisdiction the case would nonetheless
be analyzed under the substantial cause rubric, we carefully set the stage to instruct
the court why there can be no factual bases
for the expert’s substantial cause opinions.
The Expert Deposition
Armed with the knowledge from review of
prior testimony that the expert had previously calculated IQ loss based on peak blood
lead levels, and with the carefully detailed
residential chronology learned through
discovery, the deposition questions built a
sequence to establish the expert’s opinion
that Property B did not cause or contribute
to the earlier blood lead levels, including
the peak, and that Properties A and C did
contribute to all of the blood levels. The expert’s opinion on loss of IQ was elicited as
expected, based on peak BLL. The expert
was also asked to detail the other neurocognitive deficits that he believed were caused
or contributed to by the lead exposure. He
was pushed to identify specific deficits described from the report of neurocognitive
testing, and to provide his basis in the literature to say that a causal relationship had
been established between that particular
deficit and lead exposure. Concessions were
also obtained regarding other factors that
are causally associated with IQ loss and the
specific neurocognitive deficits. Ultimately,
he conceded that he could not say to a reasonable degree of medical probability that
absent his lead exposure as a whole, plaintiff would not have any of the neurocognitive deficits identified. Rather, he could only
say that the lead exposure “contributed to
his having them or exacerbated them.”
When the expert fell into the anticipated
mantra of “substantially contributed,” he
was asked to provide his definition of
“substantial contributing factor,” which
he testified meant “of consequence.” It was
also known from prior testimony that the
expert could not say within a reasonable
degree of medical probability that injury
occurs at a blood lead level of 5 µg/dl or
under, so we obtained the same testimony
regarding threshold for injury—or in the
expert’s terms the level that is “of consequence.” Finally, the expert was asked to
quantify the blood lead level caused by the
plaintiff’s exposure to Property B—which
Under the proper
analysis,courts will no
longer permit plaintiffs to
shirk their burden of proof
through nothing more
than their expert’s readymade phrase “substantial
contributing factor.”
he, of course, could not do.
The testimony obtained set the stage
for a motion to exclude the expert’s baseless opinions. Because the expert conceded
that he could not measure what the plaintiff’s blood lead level would have been from
exposure to Property B alone, there is no
factual basis for him to leap to the conclusion that the property “substantially” contributed to plaintiff’s blood lead levels and
resultant injuries. It is equally conceivable
that the plaintiff’s exposure at Property B,
where the highest documented BLL was
15 µg/dl contributed only 1, 2, 3 or 4 µg/dl
(causing no injury at all) and that the ongoing exposure from the other properties
accounted for the entire levels up to at least
10 µg/dl. Additionally, if the contributing
properties alone caused the BLLs to elevate
consistently to a level over 5 µg/dl, then the
injury was sustained even if the plaintiff
had not been exposed to Property B.
With regard to the IQ loss, this is again
an important lesson in distinguishing
when “substantial factor” is or is not the
correct test. It simply cannot be said that a
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tributing factor” to an injury that occurred
prior to the exposure. There should be no
question that the defendant cannot be held
liable for that defined injury.
Focusing the argument on factual causation, the fact finder in this case could determine based on the facts that exposure from
Property B had no effect or negligible effect
on the plaintiff’s BLLs and injuries—and
the expert offered nothing that permitted
him to leap to the opposite conclusion, presented in the guise of his opinion. The stage
was set, therefore, to argue that he should
not be permitted to offer his naked opinion
that exposure at the property “substantially
contributed” to anything. Once the opinion
Table 1. Property B Chronology
Date of
Level
Residential Address
Testing
(mcg/dl)
­(undisputed by the parties)
1/19/93
10 (v)
Property A
6/14/93
17 (c)
Property A
8/27/93
18 (c)
Property A
10/1/93
14 (v)
Property A
3/29/94
11 (v)
Property A
4/29/94
11 (c)
Property A
1/30/95
10(c)
Property A
5/3/95
10(c)
Property B
8/7/95
13 (c)
Property B
1/30/96
15(c)
Property B
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Visitation Properties
(undisputed by the parties)
Property C
Property C
Property C
Property C
Property C
Property C
Property C
Property A and C
Property A and C
Property A and C
is excluded, the plaintiff is without the necessary evidence to meet his burden of proof.
Conclusion
Legal scholars and the courts alike are recognizing that the “substantial factor test”
has been so loosely applied that it has
strayed far from its original intent, and
many are prepared to reverse that course.
Defense attorneys must continue the push
to rein in the relaxed standards on plaintiffs’ burden to prove causation. A common sense approach to causation issues
that urges the courts to move back to the
basics of factual and legal causation analysis provides the framework by which plaintiffs should be required to quantify just
how much is enough before the question of
causation can ever reach a jury. We must be
on guard, and we must place the courts on
guard, so that the minds of the legal community do not become anesthetized by the
ready-made phrase “substantial contributing factor.”