Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
JUSTICE, CHANGES IN THE STANDARDS FOR ADMITTING EXPERT EVIDENCE IN FEDERAL CIVIL CASES
SINCE THE DAUBERT DECISION (2001). Overall, the percentage of torts cases in federal court
resolved by trial has fallen from 16.5% in 1963 to 2.2% in 2002. While all subject areas have
seen declines in the percentage of cases resolved by trial, torts have experienced a
disproportionate drop. Torts cases constituted 55% of all federal trials in 1962; today they make
up only 23% of trials. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related
Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 466 (2004).
4. Agent Orange. The U.S. military used an herbicide called Agent Orange in the Vietnam
War to eliminate the foliage that provided cover to North Vietnamese forces. From 1965 to 1970,
thousands of American soldiers and millions of Vietnamese civilians were exposed to the
herbicide. Throughout the 1970s, evidence began to accumulate that Agent Orange was highly
toxic, linked to cancer and other conditions in people exposed to the substance and birth defects in
their children. In 1979, veterans filed a lawsuit against the manufacturers of Agent Orange, and
their cases were consolidated into a single multi-district litigation in New York. Agent Orange
was a classic indeterminate plaintiff case; the herbicide may well have increased the risk of some
injuries, but it was difficult to say exactly how much risk it added and even harder to identify
which plaintiffs would not have suffered their injuries without Agent Orange. The lawsuit
dragged on for years until Judge Jack Weinstein was assigned to the case. Brilliant and daring
(and controversial), Judge Weinstein wielded all the tools he was allowed to use, and possibly
some he wasn’t, to pressure the parties into a settlement. The $180-million compensation fund
created for the plaintiffs was one of the largest and most complex mass tort settlements the
country had seen. Judge Weinstein then dismissed the claims of the veterans who had opted out
of the class on summary judgment, concluding that they had failed to establish that Agent Orange
was the cause of their injuries. The dismissal came despite multiple credentialed expert witnesses
for the plaintiffs testifying about studies contending that Agent Orange may have caused the
harms the plaintiffs suffered. Critics have contended ever since that Weinstein delved into
questions of the applicability and reliability of the studies that were properly left for a jury. For a
detailed account, see Peter Schuck’s classic treatment, Agent Orange on Trial (1987).
5. Bisphenol A. Bisphenol A (BPA), a ubiquitous industrial chemical in plastics, food
packaging, baby bottles, and other areas, cuts against the conventional dose-response wisdom.
While standard toxicology studies indicated that Bisphenol A is safe, new studies that look at
significantly lower doses of Bisphenol A show that Bisphenol A may have harmful effects in
infants. U.S. FOOD AND DRUG ADMIN., Bisphenol A: Use in Food Contact Application, Mar.
2013, available at https://perma.cc/2KBA-K3QX. Unlike almost all drugs (such as Danocrine,
the drug in Zuchowicz), Bisphenol A is actually more likely to cause harm when consumed in
small doses by infants because the hormone receptors of infants are more likely to confuse
Bisphenol A for estrogen when it is present in very low doses, but not when it is present in the
higher doses tested in the traditional toxicological studies. A confounding difficulty in measuring
the effect of Bisphenol A is that most people are exposed to low doses of Bisphenol A through
hundreds of daily interactions with packaging, plastics, or even paper receipts. Frederick S. vom
Saal & Claude Hughes, An Extensive New Literature Concerning Low-Dose Effects of Bisphenol
A Shows the Need for a New Risk Assessment, 113 ENVIRON. HEALTH PERSPECT. 926 (2005). In
2008, major manufacturers of baby bottles voluntarily removed Bisphenol A from their products,
due to public pressure, as the FDA continued to study the issue. Press Release, Conn. Attorney
Gen. Office, Attorney Gen. Announces Baby Bottle Makers Agree to Stop Using BPA; Calls for
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