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Factual Causation in Toxic Tort Litigation: A Philosophical View of Proof and Certainty in Uncertain Disciplines

67 Pages Posted: 3 Mar 2010  

Danielle M. Conway

University of Maine School of Law

Date Written: 2002


The purpose of this article is to expose the ontologically proof-based requirements for factual causation created by the judiciary and imposed against toxic exposure plaintiffs. Part II first explains the differences between factual causation in traditional tort cases can factual causation in toxic tort cases, then determines that the “but for” paradigm of traditional tort cases is an unrealistic burden to toxic exposure plaintiffs resulting in the dismissal of meritorious toxic tort claims. Part II also will analyze the various threshold requirements for establishing factual causation and compares there requirements to determine the test that best balances the interests between toxic exposure plaintiffs and defendants. Part III discusses the burdens of proof for factual causation and illustrates the tension between legal standard of admissibility and sufficiency and scientific standards of reliability and certainty. Part III also argues that the tension between law and science and the dangers of summarily dismissing meritorious toxic tort claims requires courts to consider that: (1) toxic tort defendants receive unfair advantages over toxic tort plaintiffs in the current legal climate; (2) the judiciary has a responsibility to level the playing field between parties by establishing clear, defined, and fair procedural and substantive standards for admitting and weighing scientific evidence of factual causation; and (3) the judiciary must remain vigilant in propounding the corrective, distributive, compensatory, and deterrent purposes of the tort system. Finally, Part IV concludes that beyond scientific and medical certainties of proof of factual causation, philosophical and moral arguments exist which require the judiciary to recognize that toxic tort defendants should not be permitted to seek cover under varying yet stringent standards of proof for factual causation. As in any causal relationship, what is projected as a consequence is tested through experience.

Suggested Citation

Conway, Danielle M., Factual Causation in Toxic Tort Litigation: A Philosophical View of Proof and Certainty in Uncertain Disciplines (2002). University of Richmond Law Review, Vol. 35, No. 4, 2002. Available at SSRN:

Danielle M. Conway (Contact Author)

University of Maine School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

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