MOTION TO AMEND RESTATEMENT OF TORTS:
LIABILITY FOR PHYSICAL HARM
Sec. 28, Comment c
(Proposed Final Draft No. 1,
Hildy Bowbeer
I respectfully move that the membership of the ALI amend § 28, Comment c, of the Proposed Final Draft of the Restatement of Torts: Liability for Physical Harm by converting all but the first paragraph of the Comment into an ALI Reporters’ Study, similar to the decision that was made in connection with the ALI Reporters’ Study on Enterprise Responsibility for Personal Injury (April 15, 1991).
In the alternative, I move that the Comment be remanded to the Reporters with instructions to rewrite it to (i) eliminate intemperate language that rejects outright established case law on the criteria for admissibility of scientific evidence, (ii) omit language suggesting that the law has coalesced or should coalesce to the point of view held by the Reporters, when in fact the law in this area is very much in flux and is, and will continue to be, affected by developments in various scientific fields; (iii) set forth a neutral, objective description of the extant case law in this area; (iv) clarify that the Comment is not intended to erode or shift the burden of proof on the issue of causation; and (v) eliminate any attempt to describe in a few pages the underlying scientific and statistical principles that underlie these issues and that are addressed in the 622-page Reference Manual on Scientific Evidence published by the Federal Judicial Center.
The reasons for this motion are described at length in the accompanying memorandum.