Sunstein on "Causation in Tort"

The ever-prolific Cass Sunstein has a new book out from Harvard University Press, Worst-Case Scenarios; he also recently added a paper to SSRN, written with William Meadow of the University of Chicago Children's Hospital, entitled "Causation in Tort: General Populations Vs. Individual Cases." The abstract reads as follows:

To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.

Comments

[Roach]

I've always wondered what the best solution to this is. The L&E crowd would say, I suppose, that anything other than the prsent regime could lead to serious overdeterrence. Let's say the breast cancer risk is raised from 1/10 to 1/9 from a dietary supplement. That means of a population of victims out of 100, you go from 10 to, say, 11. So one more person is victimized. Previously no one could sue anyone. It was just background risk. But now all 11 can recover on the basis of the increased risk attributable to the defendant. This leads to the party that increased risk to becoming in effect a purveryor of social insurance to all eleven victims, since it can't be known which one was the extra one, and it's also social in the sense that a great proportion of the damages paid out are to people that would be harmed anyway.

I think there are a number of possibilities. You could allow all eleven to recover pro rata 1/11 total damages to have optimal deterrence. You also could say as a narrative matter: since the company in question undertook risk-increasing behavior negligently, the burden should shift to them to prove that the plaintiff was not the magic 11th person who would not have become sick "but for" the negligent behavior. This is like the famous Summers v Tice scenario. Unlike that one, though, the real world doesn't involve such a seemingly stylized scenario, but instead hundreds of causative factors including many that are not before the court and the factfinder.

The real solution might be (gasp!) statutory regulatory schemes in situations like this where it's hard retrospectively to say this defendant's actions caused this plaintiff's harm. Such a scheme should be coupled with compensation for aggrieved victims as well as optimal deterrence for malefactors.

[Joan A. Conway]

Roach:

I can't find fault with your blog!

The causative factors are never exactly known either!

Insight does not happen all at once.

Sometimes a related incident occurs that brings to mind a previous event, situation, or comment, and is revealed by the duplication of the sentiment, outcome, or response.

I try to replay just such happenings in my mind to see if a different response by me will change the result(s). And do you know what I find?

It is almost like the lesson(s) I learned will studying theatre and dramatics. If you are hostile to the group, they will love you. If you seek their approval, they will feel above you.

So, I now say to myself, "You blocks, you stones, Ohhhh, you hard hearts, knew you not Pompey?"

Shakespeare, Julius Ceaser