Case Study: Burden of Proof for Personal Injury Causation

Focused federal and state personal injury cases on whether plaintiffs could meet burden of proof on causation as a preliminary matter.  The plaintiffs in each case alleged that their cancers or neurological problems were due to a historic release of chlorinated solvents to groundwater.  One plaintiff asserted a drinking water exposure through a municipal system.  The second asserted exposure via vapor intrusion.   In each case, causation was, as a practical matter, the dispositive issue.  If the plaintiff could not carry his burden of proof on causation, his claim would fail.  If, however, the plaintiff carried his burden, the defendant company would need to evaluate seriously its litigation risk.  DGS was therefore able to convince the judge in each case to limit initial pretrial proceedings to causation, in particular (i) can exposure to the solvent at the levels claimed cause the disease at issue? and (ii) if so, was this plaintiff’s disease caused by his exposure?  With the help of experts in hydrogeology, toxicology and epidemiology in each case, and an expert on indoor air in the second case, DGS submitted motions in each case, which sought to exclude the plaintiffs’ experts on Daubert grounds, and sought entry of summary judgment for the defendant company.  In each case, shortly before their response briefs were due, the plaintiffs voluntarily dismissed their claims with prejudice and without any settlement payment from the defendant company. 

(Partners:  Gail Wurtzler, Richard Holme and Adam Cohen)