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Toxic-tort litigation presents defendants with a number of challenges. Sometimes the evidence in a case is from pioneers of the latest scientific discoveries. Sometimes facts are decades old. Sometimes old discovery responses — and responses that changed over the years — can become traps for the unwary lawyers of today. Less well-known are the problems arising from tort law’s requirement that jurors and judges make judgments regarding risk, foreseeability and causation in toxic-tort cases, even though human judgment often goes astray in those three areas. Several scientific studies have shown that jurors and judges are inclined to think that health risks associated with a product were greater than reported, that exposure to toxic materials was foreseeable and preventable, and a toxin caused an injury or disease. Because of these human errors in judgment, rulings in toxic-tort cases often favor plaintiffs. Generally, courts expect judges and jurors to calculate the care that a reasonable person should take by multiplying the risk of exposure to harm or illness by the possible damage that could result. On paper, it’s a relatively scientific, straightforward, exact calculation, but people — because of their emotions — aren’t very good at calculating risks. People overestimate small risks, underestimate large risks and are increasingly risk averse. Also, sometimes risks aren’t calculated at all. Rather, they are determined by reference to a number of mental shortcuts or heuristics. When the outcome associated with the use of a product, for instance, invokes dread, suffering and stigma, estimates of risk are overexaggerated. For example, because there is so much suffering and stigma associated with cancer, when jurors or judges hear that a product was a carcinogen, they overexaggerate the risk associated with exposure to it — regardless of the scientific calculation proving the exact amount of risk of harm involved when using that product. The same holds true if an injured person had no apparent knowledge or control over the risk, it took years for the negative effect to be discovered, or if the media heavily publicized the health hazards of exposure to a substance. For example, in the late 1970s, the media spotlight was on the Love Canal, a former chemical landfill upon which houses were built in the 1950s. At the time the people took up residence, they didn’t know what chemicals were in the landfill and the harmful effects of those chemicals. It allegedly took years for the physical side effects that some residents suffered to be linked to the chemical waste. But because the residents were seen as innocent victims who had no knowledge or control over the chemicals, and there was a barrage of media covering the story, the perception of risk was greater than what was borne out by the epidemiological studies of the people who lived there. To complicate matters, people’s knowledge of the outcome of exposure to a toxin skews their judgments — even when the risk can be calculated exactly using quantitative risk assessments and the people know the amount of risk. For example, in one experiment, a group of people was asked to rate the “riskiness” of a decision to proceed with an operation with an 8 percent risk of death. The group was told that the patient lived. A second group was asked the same question, but was told that the patient died. The second group ranked the risk far greater than did the first, both apparently ignoring the scientific data — that there was only an 8 percent risk of death — altogether. Even when all parameters are scientifically quantified, people miscalculate risk. Let’s look at another example. Assume that 1 percent of all women over the age of 50 have breast cancer. Mammography accurately detects breast cancer 90 percent of the time. The false-positive rate of mammography is 5 percent. A woman over the age of 50 has a mammogram positive for cancer. What is the probability that she actually has breast cancer? Only 15 percent. Judgments about foreseeability suffer similarly. By what is called hindsight bias, decisions about what was known or knowable are repeatedly distorted in favor of “they knew it all along.” Hindsight bias occurs when knowledge of what actually happened causes overestimation of how predictable the outcome was. The hindsight bias is particularly pernicious in that it increases the perception of how much care should have been taken and, in cases with severe outcomes such as cancer, increases the presumption of carelessness. In other words, the more awful the outcome, the more judges and jurors will think it was foreseeable — regardless of how improbable it might have appeared at the time. The hindsight bias is thought to have produced such a profound bias against defendants that there are more and more calls to change the way tort cases are tried. Some lawyers want a clear and convincing standard to replace the preponderance standard. Others want foreseeability abandoned altogether and replaced with an examination of regulatory compliance or industry standards. Yet another faction of lawyers proposes a separate liability phase of the trial without the plaintiff or anything else that might give clues about the outcome. Meanwhile, new research is revealing which approaches to “state-of-the-art” presentations exacerbate or ameliorate the bias. The law has no coherent method for assessing causation. Those engaged in writing The Restatement (Third) of Torts are only just beginning to wrestle with the issue, and toxic torts have made their effort more daunting. Judges and jurors are told to assess causation using terms such as “actual cause,” “but-for cause” and “cause-in-fact.” However, the terms are ill-defined, and the law gives no clear guidance for determining cause and attributing causation. Causation in a toxic-tort case involves a myriad of known, unknown, possible and contingent causes. Exposed and unexposed alike may get a disease, although most who are exposed will not. The diseases are multistage with the exposure at issue mediating perhaps but one step. Epidemiology provides part of the “why” of causation — a reasonable degree of belief that certain associations between exposure and disease are causal — but not the “how” of causation. The “how” of causation means knowing events at the molecular level. Elucidating such “how” mechanisms underlying disease provides even more causal evidence in the form of biomarkers of exposure and the import of viruses and genetic susceptibility. Fortunately, powerful tools in the form of probabilistic, or Bayesian, decision-making models that solve causation issues are available and being refined precisely for the purpose of answering this question: Was the act or omission of a defendant a cause of plaintiff’s disease? In toxic-tort cases, lawyers ask judges and jurors to make decisions they’re ill-equipped to make about poorly understood phenomena and to make those decisions with little guidance. Now science has discovered that people make erroneous judgments about risk, foreseeabilty and causation. At the same time, science is shedding light on the complex and myriad causes of diseases such as cancer. It’s time for the law to take into account these developments to decrease misjudgments when it comes to risk, forseeabilty and causation, and bring them into line with sound science. David A. Oliver is a partner in Porter & Hedges (www.porterhedges.com) in Houston, where his practice focuses on toxic-tort trial work. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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