MEMORANDUM IN SUPPORT OF MOTION TO AMEND
RESTATEMENT OF TORTS: LIABILITY FOR PHYSICAL HARM
SECTION 28,
Comment c
As Victor Schwartz has written, part of The American Law Institute’s mission is “to ‘restate’ areas of the common law. The ALI reviews the case law and distills it into a series of ‘black letter’ rules, followed by explanatory ‘comments,’ which are, in turn, followed by ‘Reporters’ Notes,’ which show the case law basis for the rule itself.” Victor E. Schwartz, The Restatement (Third) of Torts: Products Liability — The American Law Institute’s Process of Democracy and Deliberation, 26 Hofstra L. Rev. 743, 743 (1998). The proposed amendment to Comment c of § 28 of the Restatement Third of Torts: Products Liability represents a serious and dangerous shift away from that mission.
As demonstrated by its decision in connection with the two-volume Reporters’ Study on Enterprise Responsibility For Personal Injury (April 15, 1991), the ALI has heretofore shown a keen awareness of the difference between content appropriate to a Restatement and content more appropriate to a law review article or a “Reporters’ Study.” The ALI’s “Foreword” to Enterprise Responsibility For Personal Injury concisely describes the characteristics of such a study that distinguish it from a Restatement:
The Study addresses a complex array of legal problems in an area of law that has been controversial in one way or another for at least 50 years. . . . The Reporters’ Study suggests dozens of important changes . . . . These recommendations have been formulated on the basis of a broad view of these activities and the legal rules that have evolved in response to them. These include: the substantive rules of liability governing these activities; the procedures through which liability and compensation are determined, including civil litigation and administrative proceedings . . . .
Review of the proposals will make evident that most of them are controversial from one viewpoint or another. It is equally evident that the relationships of the proposals to each other, and the effects of implementing one or another set of them, involved complex assessments. In any case adequate comprehension of the proposals, and evaluation of their merits, will require careful and extended deliberation.
The Council of the Institute recognizes the depth of the research and analysis that have gone into the Reporters’ Study and its proposals. Even on preliminary examination it is clear that members of the Council have divergent views about the merits of the proposals and the procedures by which they should be further reviewed.
Like Enterprise Responsibility For Personal Injury, the recommendations of the Reporters reflected in Comment c deal with important, complex, and difficult issues, and the Reporters’ views are thought-provoking and worthy of consideration and debate. But the Comment is just that — the views and opinions of the Reporters — and not a Restatement. In short, Comment c, as currently drafted, cannot be said to “restate” the law; to the contrary, it goes out of its way to abjure key aspects of existing law. If the ALI were to adopt this Comment, it would undermine its reputation for “bring[ing] coherence, reason, and consistency to state judge-made law.” Schwartz, supra, at 743. As a result, I believe that this material is more appropriately captured in a Reporters’ Study.
At pages 483-84, the Comment begins a discussion of proof of causation, and states that:
Causation is a question of fact normally left to the jury, unless reasonable minds cannot differ. . . . Until the early 1980s, a qualified expert witness’s opinion that a toxic agent was a factual cause of the plaintiff’s disease was treated as sufficient evidence. A few celebrated cases and case congregations, such as the Agent Orange and Bendectin litigations, led some courts to distrust juries’ ability to resolve cases based on conflicting general expert-opinion evidence. Courts began to scrutinize the scientific evidence employed and to examine carefully the bases for an expert’s opinion on factual causation. Some courts then tried to develop bright-line rules based on science for adequate proof of factual causation. . . . [¶] These courts may be relying on a view that “science” presents an “objective” method of establishing that, in all cases, reasonable minds cannot differ on the issue of factual causation. Such a view is incorrect.
These statements reflect a fundamental misunderstanding and/or misstatement of the explicit rationale of the toxic tort cases referred to, such as the Agent Orange and Bendectin line of cases. For example, in Daubert II, Judge Kozinski squarely rejected the approach that the above language suggests was taken in the Bendectin litigation. Far from taking the position that good science always produces the same “objective” conclusions, Judge Kozinski was careful to explain that, under Daubert and the rules of evidence, a court’s proper function is often to “resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not ‘good science,’ and occasionally to reject such expert testimony because it was not ‘derived by the scientific method.’” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir. 1995).
More
troubling, these statements are the first steps down a slippery slope leading
to the inevitable conclusion that any
opinion rendered by a “scientist” is admissible and raises a question of fact
for the jury. Its adoption would mean a return to the days when the mere ipse dixit of
a self-declared expert was sufficient to state an actionable claim. See General Electric Co. v. Joiner, 522
This conclusion has been resoundingly rejected by the federal courts and a majority of states. The law is clear that, when the determination of causation cannot be made without the benefit of scientific evidence — as is true in every toxic tort case[1] — the jury never gets to consider the causation question unless the plaintiff can offer admissible scientific evidence.
Since 1993, when the United States Supreme Court decided Daubert, courts have taken seriously their
obligation to act as “gatekeepers” and to “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
The numerous federal and state courts and legislatures
that have adopted Daubert have agreed with and applied Daubert’s holding
that expert testimony is considered “reliable” when “the reasoning or
methodology underlying the testimony is scientifically valid.” Daubert, 509
Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science. [Citations.] But, in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i.e., “good grounds,” based on what is known.
Daubert, 509
In short, the Comment suggests that the courts that have engaged in a Daubert-type analysis or that have required certain minimum scientific evidence of causation were operating under incorrect assumptions about science and were wrong. If the Comment is adopted in its current form, it signals, if not shouts out loud, that the ALI is advocating that this substantial body of law be rejected and overruled.
The potential damage to fundamental principles surrounding proof of causation does not end here, however. In signaling that the threshold for admissibility of scientific evidence is influenced in a relativistic way by the difficulty of finding reliable evidence, the Comment suggests that the quantum of proof required may be on a similar sliding scale; in other words, that the ALI is endorsing a lessening of the plaintiff’s burden of proof, if not an outright shift to the defendant, wherever reliable evidence of causation is not available.
This troubling “sliding scale” approach is underscored by Comments such as the one appearing on page 484, lines 15-17: “Judgments about causation may also be affected by the comparative costs of errors, as when caution counsels in favor of declaring an uncertain agent toxic because the potential harm it may cause if toxic is so much greater than the benefit foregone if it were not introduced.” While it is true that policymakers may weigh the “comparative costs of error” against the perceived benefits of a product in deciding, for example, whether to ban or regulate a particular chemical on the basis of less-than-compelling evidence that it causes injury,[2] that has never been the standard for the courts’ judgments about causation for purposes of fixing legal liability for a specific injury. Those judgments must be objective and predictable.
It is generally accepted that plaintiffs must come forward with a minimum quantum of scientific evidence for their claims to go to the jury. See, e.g., Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349 (6th Cir. 1992) (in pre-Daubert case, the court affirmed summary judgment for the defendant because the scientific evidence, consisting mostly of animal studies, was insufficient as a matter of law to prove causation). Yet Comment c appears to advocate that these requirements be relaxed, and that any case in which plaintiffs can put forth any expert evidence relating to causation be allowed to go to the jury, or at least that the requirements should be relaxed where reliable evidence is difficult to come by.[3]
Such an approach sends the unmistakable message that the goal of the Comment is to assure that every injured person has the chance to tell his story to a jury, regardless of the absence of reliable evidence of causation. In the service of such a goal, there are only two choices — downgrade the quality of the causation evidence required, or shift the burden of proof. But the former choice pits the ALI squarely against the rules that govern the admissibility of expert evidence, namely Daubert and its analogues in state courts; the latter flies in the face of long-established, fundamental principles of common law. In either case, it turns the Comment into a policy paper and unequivocally propels the ALI and the Restatement outside of its traditional and appropriate role.
As is apparent from the discussion above, the Comment necessarily deals with questions of the admissibility of expert testimony that are properly the subject of state and federal rules of evidence and Daubert and its state counterparts. These questions should be outside the scope of the Restatement. The proposed amendment, while denying that it is doing so, unarguably seeks to disavow or even reverse the effects of Daubert and its progeny by redefining the quality, sufficiency, and scope of the evidence required to prove causation. The proponents of the amendment cannot change that fact by self-serving protestations that they are merely addressing matters of “substantive law,” not evidence.
The Reporters set themselves a monumental task in seeking to synthesize in 16 double-spaced pages the principles by which scientific evidence is evaluated, a task that was not only unnecessary to the project and unsuited to the role of the Institute, but simply impossible to do adequately in the time, space, and context allotted. The Federal Judicial Center Reference Manual on Scientific Evidence (2d ed. 2000), to which one of the Reporters contributed a 67-page article, devotes literally hundreds of pages to the subject of scientific evidence.
It is not surprising, then, that in the attempt to condense and simplify this complex topic in Comment c, much would be lost or mistaken in the translation. Comment c advocates the use of a more flexible approach in evaluating expert evidence relating to causation. The resulting analysis would certainly be flexible, but scientifically incorrect and in stark contrast to accepted epidemiological and scientific principles. For example:
Whether because of the insurmountable challenges of attempting to condense the complexities of epidemiology to a few pages, or perhaps because of an underlying value judgment that toxic tort cases must be allowed to go to the jury, the Comment’s tone, contents, and errors belittle the significance of epidemiology and valid scientific methodology in assessing causation.
4. Conclusion
The current draft of Comment c reflects a decided bias, at the expense of the law as it has developed, and at the expense of valid and generally accepted scientific principles. Whether or not by intention, its outcome would be to open the door to junk science — and, hence, to more and more dubious claims. Eschewing the objectivity that is required of our judicial system, the Comment seems to argue that the “precautionary principle” — proper in the regulatory context — must be extended to the common law tort arena. This approach is inappropriate to establish causation and liability, as many courts expressly have held. See, e.g., Allen v. Pa. Eng. Corp., 102 F.3d 194, 196 & 198 (5th Cir. 1996); Mancuso v. Consolidated Edison Co. of N.Y., Inc., 967 F. Supp. 1437 (S.D.N.Y. 1997), aff’d in part, rev’d in part, 216 F.3d 1072 (2d Cir. 2000); In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740, 781 (E.D.N.Y. 1984), aff’d in relevant part, 818 F.2d 145 (2d Cir. 1987).
Comment c does not restate the law as it currently exists or bring “coherence, reason and consistency” to the law. Instead, it represents a minority view that tries to jettison a considerable well-reasoned body of law under the imprimatur of the ALI. Like Enterprise Responsibility For Personal Injury, the views and recommendations of the Reporters reflected in Comment c deal with complex and controversial issues. They deserve to be aired, debated, and expounded upon. But they are not a Restatement. Capturing, indeed expanding, the content of this Comment c in a Reporters’ Study on this topic would be a far more appropriate and, in the end, valuable path.
[1] See, e.g., Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1215 (10th Cir. 2004) (where a fact “is beyond the experience and understanding of the average layman[,]” the “fact then must be proven by expert testimony”).
[2] See, e.g., Ethyl Corp. v. Envt’l Protection Agency, 541 F.2d 1, 27 (D.C. Cir. 1976) “Where a statute is precautionary in nature, the evidence difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge, the regulations designed to protect public health, and the decision that of an expert administrator, we will not demand rigorous step-by-step proof of cause and effect.”
[3] The Reporters themselves appear
to appreciate the importance of premising recovery for harm on reliable
evidence. See § 26, Comment n, which deals
with the issue of factual uncertainty in the context of recovery for lost
opportunity. The Comment indicates that the application of proportional
causation cannot be engaged without “reasonably good empirical evidence . . . about
the general statistical probability of the lost opportunity.”