The Use of Risk Assessment Evidence to Prove Increased Risk and Alternative Causation in Toxic Tort Litigation

FICC Quartly, Vol. 41, No. 95, Fall 1990

32 Pages Posted: 9 Sep 2009

See all articles by Gary E. Marchant

Gary E. Marchant

Arizona State University - College of Law

Michael S. Baram

Boston University - School of Law

Date Written: 1990

Abstract

Due to the difficulties of proving causation in most toxic tort suits, plaintiffs and defendants in toxic tort litigation have begun to develop and use scientifically sophisticated risk assessments as evidence in proving or disproving causation. This use has led to two new trends in tort liability. First, there is the trend in which risk assessment is used by plaintiffs to buttress claims for future injury or increased risk. Second, there is the trend in which risk assessment is used by defendants to establish that other factors caused, in whole or in part, plaintiffs’ injuries.

This article evaluates these two recent trends by describing and evaluating the applicable traditional legal doctrine, the recent case law establishing the trend, the manner in which risk assessment is used as evidence in the recent cases, the academic commentary on the trend, and the likely future development of the trend. After this evaluation, the article concludes that although use of risk assessment by plaintiffs to establish increased risk and by defendants to prove alternative causation is relatively recent, it has already had a substantial effect on tort liability and will continue such impact in the future, and therefore are of substantial risk to all possibly parties in such toxic tort litigation.

Keywords: Toxic Tort Litigation, Risk Assessment Evidence, Causation

Suggested Citation

Marchant, Gary E. and Baram, Michael, The Use of Risk Assessment Evidence to Prove Increased Risk and Alternative Causation in Toxic Tort Litigation (1990). FICC Quartly, Vol. 41, No. 95, Fall 1990. Available at SSRN: https://ssrn.com/abstract=1469704

Gary E. Marchant (Contact Author)

Arizona State University - College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States
(480) 965-3246 (Phone)
(480) 965-2427 (Fax)

Michael Baram

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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