“BUT FOR”

[Note:  This posting is a continuation of a report on the development of a civics unit of study.  This unit is directing students to formulate informed positions on a governmental topic:  ground rules overseeing tort law.  It is being developed in real time.  Writer wants to identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]

Finally, this blog can address more directly the legal concept of causation.  It turns out, causation is very important in determining liable negligence.  Legal analysis identifies two types of causation:  factual causation and legal causation.  This posting will review one and introduce the other. 

          Sometimes causation appears to be obvious; other times it is not.  There are times, because one tends to associate the sequence of events to indicate causation, that if one event precedes another, the first is the cause of the second.  This blog has already identified this proclivity as a source of potential illogical argumentation.  Here, the issue is ascribing legal responsibility for causing harm and one should remember getting it wrong can augment an already harmful event with another.

          A saying that helps identify a cause and effect relationship is “but for.”  Y would not have happened but for X.  In this arrangement, X is determined to have caused Y.  But this is not always easy to determine, and no court case illustrates this issue more than Daubert v. Merrell Dow Pharmaceuticals, a 1993 tort case.  And the harm in question could not be more serious, that of birth defects. 

In the years before this case there was a noticeable number of birth defects involving babies being born to women who had taken the drug Bendectin, which was produced and distributed by the defendant, Merrell Dow.  Here is part of the context of the case:  during those years, some women who consumed the drug did not give birth to babies with defects and, of course, not all birth defects in that time were to women who took this drug. 

So, in terms of causation, was the incidences of birth defects and the consumption of the drug happenstance or was there a cause and effect relationship?  That was the legal question in this case.  How to find out?  Here is what Cheng reports on how the plaintiff in Daubert attempted to prove causation:

          In Daubert, the plaintiff wanted to prove that Bendectin caused his birth defect.  But how could he do this?  One argument made by the plaintiff was a rather simple one – the plaintiff’s mother took Bendectin, and plaintiff suffered birth defects.  In addition, there were reports of other mothers who also took Bendectin, and also gave birth to children with birth defects.  This is anecdotal evidence; it’s based on individual anecdotes.  On one hand, you might say that inferring things from anecdotal evidence is pretty natural.  We do it all the time.  If you touch a pot and burn yourself, you suspect that the pot was hot and caused the burn.  A friend tells you she did the same thing.  You both conclude that touching a hot pot is a bad idea.  Anecdotal evidence of causation.  But anecdotal evidence can be dangerous and misleading stuff.  Why?  Well, because two things are associated with each other doesn’t mean that one thing caused the other.[2]

          Cheng goes on to point out that birth defects unfortunately happen regularly without taking this drug; that other chemicals could be to blame; or perhaps the reason the women took the drug in the first place – morning sickness – is causing the defects.

Central to the arguments of the plaintiff was testimony of experts to make the link between the drug and the defects.  This last factor provides the central precedent from this case.  It turns out the plaintiff’s experts testified that, yes, the drug caused the birth defects.  The eventual appeal decision concerning this argument was that the expert testimony was not accepted because the methodology these experts used were not those methods generally accepted by the scientific community.  This case, in other words, established a “high-bar” standard.

The point here is to give a sense of how difficult it is to establish factual causation.  It can be very difficult and tricky.  The disadvantage of taking on a corporate defendant, often a large corporation, is that it can secure top legal representation.  Those lawyers successfully questioned how the plaintiff’s experts arrived at their conclusions.  In terms of Daubert, the plaintiff’s experts used what is called epidemiological studies; i.e., observing the incidence and distribution of the phenomena in question – that being birth defects.[3]  Merrill Dow’s lawyers attacked this methodology.

That approach was not good enough, they claimed, and they were supported by the scientific community.  Before moving on, given the subject matter – birth defects – one should note that optional methodologies are highly limited.  It is not like studies can purposefully expose pregnant women to medications to see if birth defects will result in an experimental design. 

So, according to the Daubert standard, to establish factual causation, a plaintiff must employ findings that are arrived at by accepted methods.  By whom?  By the scientific community.  This reminds one of the authority professional customs enjoy in tort courts especially if the case involves a medical concern.

In summary, then, factual causation needs to be established by scientific information.  Usually, that would be obvious; one heavy automobile hits another due to negligence and someone is injured in the car hit, the scientific backing that the accident caused the injury is not debated.  But in some cases, as one finds in the Daubert case, the question can become quite complex. 

But, one needs to add, when the “but for” formula, even if unchallenged, is used, it doesn’t always arrive at liable causation.  For some cases, legal causation comes into play.  A person injured or somehow suffers a harm even if but for the acts of another party, he/she needs to consider the concerns of legal causation.  What is that?

In way of introducing this other form of causation, the tension between it and factual causation exists not in determining whether some event or factor caused the harm, but whether the factor or event was approximate enough to the harm. 

To give an example where legal causation might be a factor the following is offered:  a person negligently swings a baseball bat and hits another.  Surely, a clear case of liability exists for the injuries incurred by the victim.  But suppose that victim was to attend his daughter’s marriage that afternoon and since the injury precluded his attendance, the ceremony is delayed at some expense to the father and his family.

Surely, “but for” the accident, the father would have attended the wedding ceremony, but now cannot.  Is the “swinger” liable for those non-medical expenses?  This is a question of legal causation.  Events when they happen can and often do affect many consequences, some immediate to the harm and others more distant from the harm.  The next posting will further delve into this type of event and how they entail legal causation.

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[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

[2] Ibid., 310.

[3] Ibid.