The answer is situation dependent. It largely depends upon whether or not the “insult” can be observed with the naked eye or not.
If somebody “insults” me with a bat to my leg and moments later my leg bends at the point of impact because my bone has broken, then, generally speaking, the fact that I could see the “insult” and see or feel the corresponding break in my bone means that I can use those observations of sight and feel to prove that the bat caused the injury – arguably, no expert testimony is required. So in the realm of a medical device caused injury, you may be able to prove “causation” with similar observations if the “insult” and injuries caused by the medical device can be similarly observed.
In the realm of toxic tort, however, the insults and injuries typically happen at the microscopic level meaning that the average person cannot testify about his or her observations with regard to the insult and injury. As a result, expert witnesses must be used to prove causation. In such instances, courts require the plaintiff to produce expert testimony to establish “General Causation,” “Specific Causation,” and in some instances “Substantial-Factor Causation.”
In toxic tort cases, we determine whether a plaintiff has proven causation by addressing three areas of inquiry: (1) General Causation: Does the toxin in question have the capacity to cause the type of injury sustained by the plaintiff? And if so, what dose, or amount of exposure, is required? (2) Specific Causation: Was the plaintiff’s injury actually caused by the toxin? (3) Substantial–Factor Causation: When multiple manufacturers contribute to a plaintiff’s exposure, was the toxin produced by the defendant a substantial factor in causing the plaintiff’s injury?
Given the foregoing, proving toxic tort causation is a complicated, fact intensive, and expensive endeavor. For example, counsel for the manufacturer of a drug will ask you to list all potentially toxic substances you have been exposed to in your lifetime (medications, hairspray, construction materials, gasoline, automobile parts, etc.). Counsel for the manufacturer will then ask that you or your experts explain why those other substances are not the cause of your alleged injury. Although those explanations can be given, the burden of responding is extremely time consuming and therefore expensive.
You should consult with an attorney to determine the burden associated with proving causation for injuries you believe were caused by a defective drug or medical device.
Written by:
Mark A. Fassold
Watts Guerra LLP
4 Dominion Drive, Bldg. 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
