Unclear Causation-in-Fact

In contrast to the clarity of general causation, proof that a plain­tiffs exposure to a specific product was a substantial cause of a specific alleged disease is troublesome for plaintiffs. Diseases such as lung cancer and gastrointestinal cancer have multiple causes. Provable exposure to a specific product at a particular worksite may appear to be insubstantial in relation to exposure to other products or to cigarette smoking. Disputes as to the diagnosis of the disease, the degree of impairment, and the prognosis for future dis­eases, especially cancer, can, and frequently do, arise. One doctor’s diagnosis of pleural thickening may be another doctor’s diagnosis of obesity.34

These disputes over specific causation and the nature and extent of damages are enough to generate triable issues of fact. Once a jury issue is involved, plaintiffs understandably want to present the entire context of the asbestos story, especially the evidence of suppression of knowledge of product dangers. Plaintiffs’ evidence, in turn, provokes defendants into presenting a state-of-the-art de­fense (i.e., a claim that defendants could not have known of the dangers of asbestos to plaintiffs at the time and in the circum­stances of plaintiffs’ exposure) in an attempt to neutralize plain­tiffs’ indictment of the asbestos industry. When the parties follow

to toxic chemicals will likely be transformed, and a major impact on the legal system can be expected. At the same time, easier identification of the toxic sub­stances simplifies the litigation,

33,  See, e.g., Rabin, Environmental Liability and the Tort System, 24 Hous. L. Rev.
27, 29 (1987). Damage caused by high doses of radiation also exhibits clear general
causation. See, e.g., Allen v. United States, 588 F. Supp. 247, 315-20 {D, Utah 1984).

34.  See,     e.g.,     Planteydt,     Observer     Variation     and     Reliability    of    the
Histopathological Diagnosis of Mesothelioma,
in Health Hazards, supra note 7, at
761 (in sixty-seven cases there was complete agreement in thirteen, nearly complete
agreement in thirty-one, reasonable agreement in six, and major disagreement in
eighteen during initial review; reevaluation reduced major disagreements to four
cases).

In Jenkins v. Raymark Indus., Inc., No. M-84-19S-CA (E.D. Tex. 1986), the special master’s data collection showed major disagreements about diagnosis, especially of the noncancer cases. For example, of 555 cases in which plaintiffs claimed proof of a diagnosis of asbestosis, defendants concurred in only 45 cases and reported evidence of lack of asbestosis in 329 of the cases. In the remaining cases, the defendants’ diag­nosis was either unavailable or uncertain. {Copy of slides on file at the Federal Judi­cial Center.)

Chapter II

this scenario, any savings of trial time based on the clarity of gen­eral causation disappear.