Abstract

Proving causation in tort cases involving product liability and toxic substances is problematic and becomes more so as the complexity of scientific issues before the court increases. This essay addresses the issue of causal proof of harm in the legal setting, specific to toxic torts, with a focus on the Supreme Court's Daubert decision. It is argued that the "more likely than not" legal sufficiency standard has, at least in a number of cases , been replaced by a requirement that the evidentiary proof required in these complex cases is the showing of a statistically significant cause and effect relationship identical to that acceptable in scientific research. To replace the legal sufficiency requirement with a requirement of "scientific certainty" is to effectively restructure tort law and its evidentiary requirements. This restructuring results in adversely affecting the achievement of justice and ignores fundamental moral principles that form the foundation of tort law. Considerations of justice, whether they are derived from concepts of corrective justice or from pragmatic and utilitarian concepts as one might find in the economic efficiency theory of law, mandate a resolution to the problems shown in this essay. Legal scholars have previously made several recommendations for resolution and a model, based, in part, on one of these recommendations is proposed. The concept of 'due care' forms the basis for this model which would develop a new legal standard of strict liability for tort cases involving product liability and toxic substances. The standard involves the elimination of consideration of general causation and the reduction of specific causation to that of association or correlation, together with a failure on the part of the producer to show that appropriate scientific standards were met during the research and development process. A well-constructed standard would accomplish several worthwhile goals: increasing the efficiency of the tort system, increasing confidence in its fairness and effectively deterring unnecessary risk-imposing behavior without negatively impacting the manufacture of needed products