51:4 A Dose of Reality: The Struggle with Causation in Toxic Tort Litigation

Abstract

Asbestos litigation has a “tendency to reshape itself over time.” This Comment will argue that it is time for asbestos litigation to reshape itself once more. Asbestos litigation should align itself with the fundamentals of general tort and toxic tort causation theories. To achieve this realignment, judges should adhere to the judicial gate-keeping roles and exclude expert testimony that departs from both traditional toxic tort and scientific principles.

Part II briefly discusses what exactly asbestos is, along with the unique diseases and challenges that arise for victims injured by it. Part III explores both the tort and scientific theories embedded in toxic tort litigation, which provide a backdrop to examine just how far courts are willing to depart from these principles. Part IV discusses the special standards and tests courts developed, used, and continue to use in asbestos cases. Part V provides a starting point to reconcile general tort and evidentiary principles with the unique problems rooted in asbestos litigation.