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SRA
Risk Science & Law Specialty Group |
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| 1999-2000
Online Casebook (Second Edition)
Rutherford et al. v. Owens-Illinois, Inc. Should the argument of increased risk, if successful, serve to meet the standard for "cause in fact" or, in other words, specific, individual causation? The main issue in Rutherford was whether the trial court erred in giving a jury instruction which shifted the burden of proof to an asbestos manufacturer to prove that its asbestos was not a substantial factor in causing the plaintiff's lung cancer. The California Supreme Court [67 Cal.Rptr.2d 16 (Cal. 1997)] held the burden-shifting instruction was improper. But, at the same time, the Court actually lessened a plaintiff's burden of proof of individual causation in toxic tort cases. The Court pronounced: [T]he jury should be told that the plaintiff's exposure to a particular product was a substantial factor in causing or bringing about the disease if in reasonable medical probability it contributed to the plaintiff's risk of developing cancer. In the case of an asbestos-containing product, plaintiff's exposure must have been a . . . . . . substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, . . . [T]he substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. The Court's opinion offered substantial relief to asbestos claims in particular. There would be no need to . . . . . . demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth. [P]laintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber. Rutherford had not been diagnosed with mesothelioma, a type of cancer which is caused by exposure to asbestos. Rutherford had lung cancer, which is caused not only by asbestos but by tobacco smoke as well. As the plaintiff had at least a 30-year history of smoking a pack of cigarettes a day, the jury found him to be much more at fault than Owens-Illinois—only 1.2 percent of total liability. The analysis and reasoning of the California Supreme Court logically applies to cases involving carcinogens other than asbestos, as well as other toxic injuries. The Court established a new, relaxed standard for causation in cancer cases and probably in other toxic injury cases as well. The plaintiff need not prove causation in fact. Where a potentially carcinogenic exposure was a relatively small but still a substantial factor in increasing only the risk of cancer, a requirement of individual causation will be met. [Contributed by Wayne Roth-Nelson, with credit to an article in the Los Angeles Daily Journal, October 29, 1997] |
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