Causation in Louisiana Toxic Tort Cases
Written by Kristin Lausten
In general, to prove negligence in Louisiana, a plaintiff must provide evidence of the standard elements of negligence – duty, breach, causation, and injury/damage. The plaintiff bears the burden of proof and each element must be proven by a preponderance of the evidence. This article focuses on the causation element with a particular focus on toxic tort cases.
Louisiana Law of Negligence: Proving Causation
Under Louisiana case law, a cause is a legal cause in fact if it has a proximate relation to the harm which occurs. See Butler v. Baber, 529 So.2d 374 (La. Supreme Court 1988). A “proximate relation” exists if the following conditions are met:
- Any event in natural and continuous sequence;
- Unbroken by any intervening event that;
- Produces the result complained of and;
- That said result would not have occurred but for the event in question.
With respect to an accident and an injury, if there is more than one cause of the injury, then the defendant’s acts/conduct must have been a “substantial factor” generating the harm/injury. Often medical expert testimony is necessary to properly prove causation. Expert testimony is generally needed when causation is complex and not within the normal and customary knowledge of a jury. Expert testimony is not ALWAYS necessary. For example, if the allegation is that injury was caused by an accidental discharge of a firearm, it is probably unnecessary to have an expert testify that the bullet caused the injury.
In defending a case based on lack of causation, each piece of causation can be challenged. That is, one may argue that there is no “natural and continuous sequence,” that there was an intervening cause or multiple causes, etc.
Two Components of Causation for Toxic Torts
With respect to toxic tort litigation, case law has established that a plaintiff must prove two components of causation – general and specific causation. See Pick v. American Medical Systems, Inc., 958 F.Supp. 1151 (E.D. La.1997). “General causation” refers to whether the toxic substance at issue is capable of causing a particular injury or condition, while “specific causation” refers to whether the toxic substance caused injury to the specific individual involved in the case. Common sense and the case law make it clear that a plaintiff cannot sustain his or her burden of proof with general causation proof alone; the plaintiff must establish specific causation.
In general, that means the plaintiff must prove exposure and that the exposure actually led to the illness, disease or medical condition. Exposure can be shown by direct or circumstantial evidence. Direct evidence is something like “I touched or breathed in the substance.” Circumstantial evidence is something like: “… the toxic substance was released into the air, I was in the location and breathed in the air, I contracted the condition related to having the toxic substance in one’s lungs, therefore, it is more probable than not that I was exposed to the toxic substance.”
As a matter of good defense, it is wise to argue that expert testimony is needed with respect to both general causation and specific causation. However, the case law seems to only require expert testimony with respect to the general causation. See Bradford v. CITGO Petroleum Corp., Case No. No. 17-296 (consolidated with other cases) (La. App. 3rd Cir. January 10, 2018). In Bradford, the Court of Appeals rejected arguments by CITGO that the plaintiffs had not sufficiently proven general and specific causation related to a massive oil and gas spill in 2006. The court noted expert testimony showed general causation — various petroleum substances led to specific medical ailments. The court also noted that more than sufficient evidence was provided of specific exposure and also of specific medical causation.
Contact an Experienced Louisiana Toxic Tort Defense Lawyer
Need assistance? Have questions? Contact Kristin M. Lausten. Our legal team defends toxic tort cases in both state and federal courts throughout Louisiana. We use state-of-the art technology and maintain relationships with a broad range of scientific and legal experts who are needed for defending toxic tort cases.
In addition, we provide legal consultation and planning so that you can decrease your risks of being sued for torts related to toxic substances.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
Telephone: 504.377.6585
E-mail: kristin@kristinlausten.com
Web: www.kristinlausten.com
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.