The Commonality of Causation

Abstract

This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School of Law, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is “common,” or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of that claimant. For that reason, courts have often refused to certify class actions, or have otherwise been reluctant to utilize collective procedures, where issues of causation predominate the proceedings. It is thought that in such cases plaintiffs are entitled to a more tailored, individualized hearing to accurately assess causation consistent with due process. This essay questions this common-sense notion that the issue of causation is an “individual” issue and argues that causation is actually much more “common” when one examines the causation element and its proof in greater depth. The essay concludes by suggesting ways in which the “commonality” of causation can be addressed in litigation to better fulfill the deterrence and compensation objectives of the litigation.

Keywords: Causation, MDL, Class Actions, Bifurcation, Common Issues

JEL Classification: K41