Date: Sat, 28 Jul 2007 02:32

From: David Cheifetz

Subject: Causation Conundrum

Dear Colleagues:

I apologize if this is self-evident. I'm trying to work out the terminology.

In terms of the standard of proof, is this an accurate statement of what goes on under Fairchild/Barker or Resurfice -

General causation, as explained in US jurisprudence, necessarily satisfies the connection aspects of Barker/Fairchild and Resurfice whenever the faulty conduct in issue is sufficient to satisfy general causation.

That's because what happens is that the plaintiff is proving on a probability basis that the wrongful conduct increased the risk and then on a sufficiently strong possibility basis (necessarily less than 50%) that the material increase (from the background risk) in risk is sufficiently connected to the materialization of the harm which occurs. The last part has to be less than 50% or there is probability of actual contribution to injury.

That second connection - the risk-harm connection - is essentially what the US calls general causation, no? Valid scientific opinion that the antecedent is sufficient by itself, or in conjunction with other defined factors, in the general case to cause the harm, so that the court can than move to the question of whether the connection exists in the specific case before it?

But, if this analysis is accurate, haven't I just shown by another route that Fairchild/Barker and Resurfice deem the causation part of the tort analysis satisfied by the mere existence of general causation any time there is faulty conduct (which could be a cause of the harm based on general causation) and which, in fact, increased the risk of the occurrence of the harm that materialized. That is, I've shown by another route that Barker/Fairchild and Resurfice create liability based on fault without causation. I'm not sure I've said anything new that hasn't been said.

All criticisms welcome, on or off the list.

Thanks,
David

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