Restatement (Third) of Torts: Causality and Risk Turned Upside Down

Would you believe that an act that was neither sufficient nor even necessary to produce an injury could still be considered a legal cause of it simply because it had exposed an injured plaintiff to risk? You need to read Restatement (Third) of Torts: Liability for Physical Harm. Wherever adopted it will expand liability in asbestos cases against those that almost certainly had nothing to do with plaintiffs’ injuries; it will extend asbestos litigation’s special rules to any claim for a cumulative or indivisible injury due to toxic exposure; and, it will do it by standing modern thinking about causality and risk on its head.

To understand why Restatement 3rd will change everything you need to read "The Insubstantially of the ‘Substantial Factor’ Test for Causation". Among the authors are the Reporters for the Restatement (Third) of Torts and they specifically examine the problem of causation in asbestos cases. They survey the landscape of modern attempts to deal with the issue and settle on Lohrmann, Rutherford, Greggand Flores as representative.

Concluding that Rutherford stands for the rule that "[p]laintiff need only prove that defendant contributed to the risk of disease by exposing the plaintiff to asbestos" the authors conclude: "[g]iven the reality of causal uncertainty, we believe the Rutherford solution to the problem is the best yet devised. The Rutherford approach of imposing liability for risk contribution is self correcting in the case of small doses, at least in jurisdictions with several liability. The defendant who contributes .05% of the dose to which the plaintiff was exposed will be liable for that same percentage of the plaintiff’s damages."

What’s wrong with that? Well they’ve conflated risk and causation. They’re defining cause as risk and risk as cause and imposing liability without regard to cause or even the degree of risk imparted. How so? By saying that dose, which is only an aspect of risk, is the measure of cause; and by saying that cause is simply the set of all proven doses (which is to say risks)- thus: 0.05% dose (risk) = 0.05% of the causation.

The authors make it clear that there is no lower limit above zero that could not be the basis for liability. Either each fiber was a necessary cause under the “straw that broke the camel’s back” view or each fiber was a member of some sufficient group or set of fibers thus satisfying the Restatements’ version of the NESS (Necessary Element of a Sufficient Set) test for causation. How do we know this? There is a “trivial-contribution exemption” that applies in situations where there are multiple sufficient causal sets but the authors state that this exemption does not apply in the asbestos context. How could that be so? They must have determined that asbestos doses are fungible and the disease the result of the dose such that the sufficient set of causes of say mesothelioma necessarily includes all asbestos exposures; and thus by extension, each fiber “a factual cause subject to liability”. Otherwise, calculating the answer to the "how many sufficient sets can we make out of the total dose" question would lead to the logical conclusion that it is impossible to say that any given defendant’s contribution to dose was causative. To be sure that can’t happen there’s Section 27.

If you doubt that each fiber can be a legal cause or still doubt that that there’s no lower limit of liability read section 27, especially comment f.

"Section 27. Multiple Sufficient Causes

If multiple acts occur, each of which alone would have been a factual cause under section 26 (what the Reporters say is the essence of causation, the "but for" test) of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

… comment f. The fact that an actor’s conduct requires other conduct to be sufficient to cause another’s harm does not obviate the applicability of this Section. Moreover, the fact that the other person’s conduct is sufficient to cause the harm does not prevent the actor’s conduct from being a factual cause of harm pursuant to this Section, if the actor’s conduct is necessary to at least one causal set."

Basically, this is just the old game of "How do you know asbestos caused his mesothelioma? Because he was exposed to a sufficient dose. But how do you know he had a sufficient dose? Because he got mesothelioma. How do you know that every exposure contributed? Because otherwise he wouldn’t have had a sufficient dose. But how much was needed for a sufficient dose? Enough to cause his mesothelioma.”

If courts adopt such a rule it’ll be a happy day indeed for plaintiffs’ lawyers. Their refrain, and that of their experts, that "every dose is causative because the risk doesn’t become zero until dose is zero" – the logical fallacy behind conflating risk and causation and behind the "one fiber" theory – will have become law; and the law will be deeply biased against defendants.

Next up, we’ll discuss causation and risk and why the reasoning in Borg-Warner v. Flores best captures the essence of American tort jurisprudence. Hint: "the risk reasonably perceived defines the duty to be obeyed" is best understood as being about risk and the reasonable man, and not about foreseeability.