A toxic tort is a personal injury claim for harm caused by exposure to a dangerous substance. This can be an environmental toxin or a defective drug. Toxic torts can arise in a wide variety of situations including exposure to pharmaceuticals, asbestos or other toxins in our work environments, at home and even in our drinking water. Traditional theories of tort liability and defenses apply in these cases. Thus, before you take a case where your client claims he was injured from a dangerous substance, be certain you can find qualified experts and prove medical causation. You will absolutely face a Daubert challenge in every one of these cases as well as motions for summary judgment on causation. Plan ahead to ensure you are prepared for this determinative issue.
To establish causation in a typical personal injury case the plaintiff must prove the defendant’s conduct caused an event, and that the event caused the plaintiff to suffer compensable damages. Burroughs v. Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). The plaintiff must then show the causal link between the event and the injury by competent evidence. Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007). When expert testimony is necessary, the testimony must show the causal connection between the defendant’s negligence and the injuries and it cannot be based on mere conjecture, speculation or possibility. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). Evidence of causation proven by a medical expert’s opinion must rest in reasonable medical probability. Tex. R. Evid. 703; Crye, 907 S.W.2d 497, 500 (Tex. 1995). However, a plaintiff “is not required to establish causation in terms of medical certainty nor is he … required to exclude every other reasonable hypothesis.” Hospadales v. McCoy, 513 S.W.3d 737; quoting Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex. App. Houston 14th dist. 1994).
Causation in a toxic tort case is discussed in terms of general and specific causation. Merrell Dow Pharm. v. Havner 953 S.W.2d 706, 714 (Tex. 1997). General causation describes whether a substance is capable of causing a particular injury or condition in the general population, while specific causation describes whether a substance caused a particular individual’s injury. Id. In many cases it is impossible to present direct evidence that the substance caused the plaintiff’s injury. Id. Proving one type of causation does not necessarily prove the other, and both are needed for a plaintiff in a toxic-tort suit to prevail. Id. Expert opinions must be supported by facts in evidence, not conjecture. Marathon Corp. v. Pitzner 106 S.W.3d 724, 729 (Tex. 2003)
The causal connection between the plaintiff’s exposure and her injuries is always in dispute because we must prove the exposure caused the harm. In Texas, a plaintiff must show the defendant’s dangerous substance was a substantial factor in causing harm to the plaintiff. Bostic v. Georgia-Pacific Corp., 439 W.W.3d 332, 346. The court does not have absolute power to decide this dispositive issue.
“Some discretion must be ceded to the trier of fact in determining whether the plaintiff met the substantial factor standard.” Id. at 346-347. Scientific and medical evidence, such as epidemiological studies, used to establish general causation is often complex and subject to varying interpretations. However, the use of scientific evidence is one of the most powerful ways to deal with causation, from both the plaintiff and the defense side. For specific causation, the plaintiff will need clear scientific and medical testimony from experts linking the toxic chemical and the illness or injury. From the defense aspect, medical testimony disputing the plaintiff’s alleged exposure is vital to disqualifying a plaintiff’s claim.
If you cannot prove medical causation your case is over – no matter how significant the injuries and damages. You need to make this determination during your investigation if at all possible, as you will likely save your client the stress of litigation and your firm thousands if not hundreds of thousands of dollars and countless man hours necessary to prove the case. Dawn Smith