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DAWN SMITH | Mass Torts
Toxic Torts: How Do I Prove Medical
Causation?
Atoxic tort is a personal injury claim for harm caused by exposure to a dangerous substance. is 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 ourworkenvironments,athomeandeveninourdrinking water. Traditional theories of tort liability and defenses ap- ply in these cases. us, before you take a case where your client claims he was injured from a dangerous substance, be certain you can nd quali ed experts and prove medi- cal 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 pre- pared for this determinative issue.
To establish causation in a typical personal injury case the plainti must prove the defendant’s conduct caused an event, and that the event caused the plainti to su er compensable damages. Burroughs v. Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). e plainti 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). How- ever, a plainti “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 speci c causation. Merrell Dow Pharm. v. Havner 953 S.W.2d 706, 714 (Tex. 1997). General causa- tion describes whether a substance is capable of causing a particular injury or condition in the general population, while speci c 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 plainti ’s injury. Id. Proving one type of cau- sation does not necessarily prove the other, and both are
needed for a plainti in a toxic-tort suit to prevail. Id. Ex- pert opinions must be supported by facts in evidence, not conjecture. Marathon Corp. v. Pitzner 106 S.W.3d 724, 729 (Tex. 2003)
e causal connection between the plainti ’s exposure and her injuries is always in dispute because we must prove the exposure caused the harm. In Texas, a plain- ti must show the defendant’s dangerous substance was a substantial factor in causing harm to the plainti . Bostic v. Georgia-Paci c Corp., 439 W.W.3d 332, 346. e court does not have absolute power to decide this dispositive is- sue.
“Some discretion must be ceded to the trier of fact in determining whether the plainti met the substantial fac- tor standard.” Id. at 346-347. Scienti c and medical evi- dence, such as epidemiological studies, used to establish general causation is o en complex and subject to varying interpretations. However, the use of scienti c evidence is one of the most powerful ways to deal with causation, from both the plainti and the defense side. For speci c causation, the plainti will need clear scienti c and medi- cal testimony from experts linking the toxic chemical and the illness or injury. From the defense aspect, medical tes- timony disputing the plainti ’s alleged exposure is vital to disqualifying a plainti ’s claim.
If you cannot prove medical causation your case is over – no matter how signi cant the injuries and damages. You need to make this determination during your investiga- tion if at all possible, as you will likely save your client the stress of litigation and your rm thousands if not hun- dreds of thousands of dollars and countless man hours necessary to prove the case.
DAWN SMITH IS LICENSED IN CALIFORNIA AND TEXAS AND IS THE MANAGING PARTNER OF SMITH CLINESMITH IN DALLAS, TEXAS. SHE HANDLES NATIONAL CASES INVOLV- ING TOXIC EXPOSURES AND DANGEROUS PRODUCTS. AS A CHILD, DAWN’S FAMILY INSPIRED HER TO HELP OTHERS, AND A SCHOOL TRIP TO THE SUPREME COURT DIRECTED HER TO A CAREER IN LAW. DAWN IMMEDIATELY BEGAN TRYING CASES AFTER LAW SCHOOL AND ACHIEVED OVER $60 MILLION IN VERDICTS AND SETTLEMENTS FOR HER CLIENTS. AFTER MOVING TO TEXAS AND MANAGING A DOCKET OF 500 ASBESTOS LAWSUITS, DAWN’S TRIAL TEAM ACHIEVED THE LARGEST SINGLE-PLAINTIFF ASBESTOS VER- DICT IN HISTORY, $322 MILLION.
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