Mesothelioma Lawyers Blog
According to a recent article from the National Law Review, the state of Florida joined a group of states that are making it more difficult to prove causation in mesothelioma lawsuits. The first thing to discuss is what the term causation means in this context.
In any mesothelioma lawsuit, the primary claim is filed under a negligence theory. This is true even though we may be dealing a specific claim such as a failure to warn of a known danger. In any negligence case, there are four elements. The first element is whether the defendant owed a duty of care to the plaintiff. The second element is whether the defendant breached a duty of care, assuming one was owed. The next element is known as causation and the fourth element is the amount of damages, if any, the defendant’s breach of a duty of due care caused the plaintiff.
As our Boston mesothelioma attorneys can explain, under our legal system, in its most broad sense, we are asking whether or not the defendant’s breach of duty caused the plaintiff’s injuries. However, the element of causation is further broken down into what is called actual or “but for causation” and what is known as proximate causation. To say something is the actual cause of plaintiff’s injuries means that the damages would not have happened but for the defendant breach.
One classic example form an old case is if a person goes to see his doctor to get a vasectomy, and the man later has a child because the operation was not done properly. If his child later crashes as car into a pedestrian, it is true, that the child would not have been born had the vasectomy been performed properly. However, it would be ridiculous to hold a doctor liable for this car accident, because it is so far removed in time. For this reason, we would say the doctor was the actual cause but not the proximate cause. In Massachusetts, and most of the U.S., proximate cause is much more crucial than actual cause in proving a negligence case.
In Florida, as discussed in this article, legislature has worked to increase the difficulty in proving causation in mesothelioma cases by rejecting the doctrine that any exposure is enough to prove that asbestos caused plaintiff’s injuries. They are saying it does not pass the Daubert standard which involves the use of expert testimony.
In some cases in the past, juries have held and courts have affirmed that if the plaintiff could prove that there was any exposure to asbestos caused by the defendant, that was enough to establish the claim and award damages. In order to prevent this and require what is known as cumulative exposure, they are rejecting the any exposure theory of proof. However, much of this comes down to an attempt to set public policy, since these companies were knowingly harming people, and the victims actually developed mesothelioma. There is not much hard science to support the position that any exposure is not enough, but that is a concerning trend in some parts of the country.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Additional Resources:
Florida Tightens the Reins on Proving Causation in Asbestos Claims, September 21, 2016, By Walter G. Latimer, National Law Review
More Blog Entries:
Grant v. Foster Wheeler, LLC – Proof of Asbestos Defendants’ Products as Proximate Cause of Injury, July 5, 2016, Boston Mesothelioma Lawyer Blog