Jan 9 Feedback

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I've been thinking about Prof. Nesson's comment today that it might be better if defendants had to prove that their actions didn't cause an injury once the plaintiff set out a plausible story that it might have and proved negligence. I can see a lot of reasons why such a change could have very bad consequences, but I don't think I articulated these concerns very well in class, so I wrote out my thoughts below, in case anyone would like to talk about them or tell me where I'm way off base. Thanks.

Why not shift the burden of proof on causation to defendant once a plausible story is formed by plaintiffs?

Perhaps a hypothetical would help us think about it.

Let’s say there’s a lot of leukemia in a particular community.

There are several plausible stories as to why there is so much leukemia.

These stories include:

a) Company A negligently put a carcinogen into the water.
b) Company B, which went bankrupt 20 years ago, negligently put a different carcinogen into the water.
c) Company C negligently put yet another carcinogen into the water.
d) Company D non-negligently put a carcinogen into the air.
e) The local government inadvertently built the schools or sidewalks or water systems near or using carcinogenic or contaminated materials.
f) The concentration of cases results from the unique genetic makeup of the population of the neighborhood.
g) The concentration is a result of an as-of-yet-unidentified viral agent.
h) The concentration is a rare, but entirely random, tragedy.
i) It cannot be determined with the current state of knowledge.

On the face of it, all of these (and potentially thousands more) are plausible stories. Specific facts could probably be summoned to make any of them even more plausible.

To the victims (and certainly to the plaintiffs lawyers), the most plausible stories are going to seem to be a) and c), at least partially because in thoses stories there is both negligence and someone to sue. Beyond mere monetary incentives, most people want to believe that there is a person or entity they can blame for their misfortune, and want still more to believe that there is something that they can do about it.

But if we find ourselves in a situation where causation cannot be proved or disproved for any of these plausible stories, which story gets the blessing of the Law Lord?

If we shift the burden to disprove causation to the defendant upon construction of a merely plausible story, but proof of this negative is impossible, then the Law Lord might be in the untenable position of blessing more than one mutually exclusive story.

Moreover, the Law Lord would thereby expose any negligent company to all manner of creative “plausible” liability claims. Not only would there be claims that the chemical in the water caused leukemia, but also autism, and ADHD, and irritable bowel syndrome, and chronic fatigue syndrome, and any number of maladies for which a causal connection has not been established, but for which causation has not yet been disproved. This may sound absurd, but such things can, do and have happened when the causation requirement is relaxed or poorly guarded.

The litigation over silicone breast implants is a good example. A whole host of truly horrendous conditions were blamed on the product, and the stories constructed by the plaintiffs and their lawyers were certainly plausible, but they never actual established with legitimate science that the products caused the harm. And subsequent scientific research has shown no connection at all between the products and the maladies, but because of the legitimacy the Law Lord gave to the plaintiffs’ stories that lacked any proof of causation, a least one giant corporation went bankrupt, thousands of women were frightened into unnecessary implant removal surgeries, and as with any even minor surgery, a small percentage of those women died of complications due to the unnecessary surgery.

Anyone else have thoughts on this?


Mike Redmond

Mike, As you point out, in the "Civil Action"-type cases the law is operating on the verge of what science knows, and there doesn't seem to be any definitive solution by which the law can determine liability. One of the things I took away from the class discussion was that the Law Lord or the courts, whichever you like, has to choose between two sets of risks. One risk is the wrong determination and false closure that you point out where the wrong party might pay for harm that was completely unrelated. On the other side, the system as it currently exists would risk failing to come to closure where there was actual harm from environmental pollutants and science had not yet figured it out.

Maybe one way of answering your problem related to the false closure is by saying that the amount that science knows about any given product could be a variable over which companies have control, and that putting the burden of proof on the company would cause them to invest more in research/testing while they are developing a given product. If the burden of proof shifting did cause this greater amount of research, it would not only eliminate the bad actors who may be dumping chemicals in their backyards without knowing the consequences, but it would also, perhaps, cause companies like the silicone breast manufacturers to have research on hand at the time when a suit was brought. Nesson seemed to imply that the evidentiary rule that the Law Lord uses for cases that are on the verge of scientific understanding could have some impact on the focus of the "Lord of Science" beforehand.

A second point to support burden-shifting from a narrative point of view would be that it requires defendants to engage with the narrative-generating machine in an affirmative way, rather than mostly playing defense to disrupt the plaintiff's narrative. I do take your point that people look for closure and are willing to find fault where none may be present, and I'm not sure how to answer that one...do you have further thoughts?

Mark Jensen


Thanks for engaging me on this. I've got a couple more thoughts...

On the closure front, I think the Law Lord/courts loose a great deal of credibility when they refuse to admit that story i) "It cannot be determined with the current state of knowledge" is sometimes the only reasonable "truth". The unrealistic demand for universal closure on a specific level creates a great deal less closure on a meta-level.

I also think you're overestimating the amount of control that companies have over the amount of information they have about their products. Shifting this burden would result in some greater amount of research, but a more common result would likely be that the extra expense of more research would make the potential innovation less economically viable, so society instead of more information on the new products, we simply get fewer new products, fewer new chemicals, fewer new vacinactions. Maybe we think this is a price worth paying, but we need to recognize that we can't just mandate knowledge without cost.

Furthermore, I seriously doubt that any research program would have involved disproving in advance that a new chemical doesn't cause increased risk of leukemia in fetuses when their mothers take hot showers with water contaminated with it. The number of potential maladies and potential variations on how those maladies might be caused borders on the infinite, so I'm not sure that a company would ever be able to gather the kind of knowledge such a burden shift suggests they ought to gather in advance.

Also, much of the knowledge of the Lord of Science gains about products effects on humans consists of knowledge that can be gathered, if at all, only after the product has been placed in widespead use. Science feels safe in telling us that silicone breast implants do not cause autoimmune disorders because the sample set of the thousands upon thousands of people who used the product with no ill effects. If the burden shift subjected the producers to liability until there was sufficient evidence to disprove causation, that evidence could never come to exist.

I'm all for getting rid of the bad actors who dump illegally - they should pay for their crimes and all the harms that those crimes caused, but without some evidence of causation between the harm and the crime, I don't see how this isn't just opportunistic scapegoating. If I dent your fender because I was tailgaiting, I should have to pay the traffic fine and pay for your fender, but I shouldn't have to pay for your therapy sessions unless there's some proof that my hitting you caused the trauma that sent you to the shrink. If the burden of proof is on me to disprove this causation, I don't see how it could be done. Can you think of a way?

Thanks, Mike