Expert Strategies: Establishing Causation in Tort Cases

Carolyn Casey, J.D.

Written by
— Updated on March 31, 2021

Expert Strategies: Establishing Causation in Tort Cases

A successful tort case depends on establishing a few essential legal elements: duty, breach, causation, and damages. This third element—causation—can often prove tricky, especially for matters in pharmaceutical product liability and mass toxic tort litigation. In such cases where a plaintiff has been exposed to a dangerous pathogen or a defective drug, for instance, the causation bar becomes multipronged: general and specific causation. General causation relates to establishing that the product or substance at issue could cause the injury, while specific causation involves demonstrating how the substance caused the injury.

As the stakes for nailing down causation grow loftier, the role of experts also becomes increasingly crucial. Experts, when consulted correctly, can be key voices of authority to pinpoint the causation intricacies present in medical and toxic tort cases. Here, we examine the best practices for presenting expert testimony in tort cases and the relevant laws that dictate expert admissibility.

Determining Causation Starts Early

Scientific evidence is dense, complicated, and vital for proving causation. That’s why sourcing expertise in these areas is valuable right from the jump. From the very beginning of tort case preparations, collaborating with experts can help to point you in the right direction through technical, specialized case matters.

To demonstrate general causation, the right experts can help to identify impactful epidemiological studies or relevant literature. Industry experts can also help strategize on the research the opposing counsel could use to challenge your case theory. Early expert guidance contributes to a strong case foundation on which to flesh out all points of causation of your client’s injuries.

When it comes to specific causation, qualified scientific and medical experts can help guide your argument on how a certain product did in fact cause your client’s injuries. Specific causation requires acute subject matter knowledge—without engaging an expert, it’s like a shot in the dark. Expert-vetted causation ensures your argument can withstand trial and whatever rebukes your opposition may bring.

Even if early expert consultation uncovers a weak case for proving causation, this saves you and your client a great deal of time, stress, and resources. Whether the case outlook is good or bad, early and frequent expert collaboration can make all the difference in how your team chooses to proceed.

Expert Consultation on Novel Case Matter

For cases related to new or emerging matters—COVID-19, new drugs, or chemical compounds, for example—there may be a paucity of scientific and medical literature available. This presents a disadvantage for supporting your causation strategy and, ultimately, your expert’s testimony. This is especially relevant to a potential Daubert or Frye challenge. Under a Daubert challenge, an expert must demonstrate that their testimony is based on sound methodology and solid scientific research—or risk having testimony excluded. Whereas in states using the Frye standard, an expert’s opinion is admissible only if their opinion is generally accepted inside the relevant scientific field. In each of the expert admissibility challenge types, experts are up against large hurdles for presenting testimony in groundbreaking or novel cases.

As you build a tort case based on developing areas, expert input on what you can—or should—present in the courtroom is essential. Your causation theory will only hold up if an expert authority can back it up. In cases where medical or scientific literature hasn’t caught up yet, experts can also help you explore alternative causation theories with much stronger sources.

Sourcing the Most Effective Literature

Many lawyers find a point of pride in doing their own literature searches—and many are quite adept in doing this critical case research for tort cases. But for novel legal areas, literature searches are best left to the experts. Medical experts, for instance, are much better equipped for sourcing the most current and industry-accepted information on recent medical matters. A highly qualified expert is able to cut through those outlier articles or inconclusive studies that won’t help your case.

Experts also have members-only access to academic and scientific groups that publish papers on emerging and new findings. These trained professional experts can surface promising research from respected scientists that may prove helpful in groundbreaking cases that hinge on the most current medical or scientific issues. By working with experts on literature searches, you’re guided past the glut of emerging opinions and half-baked theories swirling around in the legal and scientific communities.

Know Your Expert Resources

With Expert Institute’s Case Clinic service, attorneys are connected to the right experts to help refine their tort case preparations. Speak with highly qualified medical experts to understand the industry research related to your case and work together to workshop a breadth of causation theories. Expert Institute-sourced experts can also help you highlight the most promising causation arguments or suggest alternatives when you face an uphill battle. Attorneys can also access custom literature searches, comprehensive medical record reviews, and roundtables with actively-practicing industry experts. For your next tort matter, give your causation theories a competitive edge with help from Expert Institute.

Collaborate with a top expert on causation theories for your next tort case. 

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