The literature regarding the law-epidemiologic disconnect in causal proof is vast, non-conclusive and partisan. Some favor weakening the plaintiff’s burden in cases of ambiguous causation (when we don’t have enough objective scientific proof), even if bastardizing scientific requisites is necessary. Scientific purists, of course, object. Some suggest crafting novel legal causes of action, such as proportionate liability. Legal purists reject this approach. The conflict has been raging for decades and we are no closer to resolving the issue than when it was first raised some thirty years ago.
This research takes a novel approach at resolving the dilemma, trying to understand the divide from a cultural or ‘poetics’ perspective before even attempting to reconcile the disconnect. After discussing five conflicting decisions reaching contrary scientific conclusions regarding ‘specific’ and ‘general’ causation, and different legal resolutions regarding admissibility of expert testimony, I set forth a detailed discussion of the elements of ‘poetics,’ a method of examining how meanings get mangled across the communication-divide. Using this methodology I examine the cultural and linguistic dissonance of tort law and science. Then, with these tools in hand, I visit the poetics of law, epidemiology and medicine, only to discover not only a ‘poetic failure’ between the three disciplines, but internal discord within the field of epidemiology itself. Exposing faults within the foundational underpinnings of epidemiology highlights difficulties faced by the field, which, when incorporated into legal discourse, compromises legal outcomes. Once the flaws were exposed, I could propose options for legally valid and scientifically reliable resolution.
However, not until courts appreciate the inherent discord within epidemiology itself, recognizing resultant limitations in addressing multi-causation, both scientifically and legally, will we reach a point where far-reaching resolution is even on the event-horizon, and we are doomed to generating ever-conflicting opinions.
Billauer, Barbara P, The Causal Conundrum: Examining the Medical-Legal Disconnect in Toxic Tort Cases from a Cultural Perspective or How the Law Swallowed the Epidemiologist and Grew Long Legs and a Tail (July 31, 2017).