Friday, August 26, 2011

Toxic Trouble

Blanchard v. Goodyear Tire & Rubber, Co., 2011 VT 85.

Plaintiff in today’s case suffers from a rare form on non-Hodgkin’s lymphoma, a cancer that has attacked his central nervous system.  Plaintiff blames his condition on exposure to the known carcinogen benzene, which possibly leaked from Defendant’s plant in Windsor, across the gully, and into the ball field where Plaintiff spent most of the waking hours of his youth.

This is a negligence case, but more particularly, it is the type of negligence case known as a toxic tort where a plaintiff claims injuries and damages from exposure to environmental pollutants.  To understand the issues in this type of case it is probably best to highlight what the strengths of Plaintiff’s claim are before looking at his weaknesses. 

The elements in a negligence claim are duty, breach, causation, and damages.  In Plaintiff’s case, his strongest case can be made for damages.  Plaintiff is clearly sick with a life threatening disease.  He can also make a strong case for duty.  Goodyear had a duty, in the most basic sense, not to dump carcinogens into the stormwater drains that led to the local ball field.

After that, unfortunately, Plaintiff’s case starts to fall apart.  The big problem is that there is no way of knowing how much benzene Goodyear had at its property or how much actually migrated to the ball field.  Plaintiff testified that the outfield was often oily with a foul smelling substance that seemed to come from the Goodyear plant.  But he cannot show what this substance was, how much of it was present, or even what his level of exposure to the substance was.  Goodyear apparently did not use benzene in its process, but it admitted that benzene was likely present in some of the gas and oil products that it used.  Goodyear has no record of dumping the material into a stormwater drain, and there is no evidence to show what might have migrated down the gully. 

Alone, these gaps might not be too significant.  The SCOV is generous in allowing cases to proceed on circumstantial and deductive evidence.  They are particularly mindful that such issues are common in toxic tort cases where the incident of exposure and the discovery may be separated by thirty or forty years.  The problem here comes down to Plaintiff’s other weak point, causation.

Plaintiff has two causation burdens to meet in this case.  The first is a general causation burden—is benzene a significant and highly likely cause of this type of cancer—and specific—is benzene the probable cause of Plaintiff’s cancer.  On both elements, Plaintiff cannot muster enough evidence, according to the SCOV, to get the issue to the jury.

The issue of causation is the difference between probability and possibility.  Probability means that something is likely to happen.  It is a 51% chance of success.  It is not a guaranteed or even strongly successful chance, but a better-than-even standard.

Possibility is the mere chance something will happen.  It does not mean that there is a good chance, just that it is not impossible. 

In causation analysis, probability is king.  You do not get a case to a jury until you can establish that defendant’s actions probably caused plaintiff’s injuries.  In this case, Plaintiff could not muster expert witness testimony sufficient to meet the burden. 

The SCOV goes a brief, but thorough, analysis to look into different possible theories that Plaintiff could try to get to the jury including a differential diagnosis (where the doctors eliminate every other possible cause), but it keeps coming back to the same central problems.  Plaintiff cannot establish if or how much benzene he was exposed to and he cannot establish benzene as the sole or even primary cause of his cancer.  He can create inferences for both and can certainly argue that both are possible, but he cannot patch together the essential chain of that makes them more probable than not.

This leads the SCOV to the inexorable conclusion that Plaintiff’s case is incomplete and affirms the trial court’s grant of summary judgment.  While it does not diminish Plaintiff’s health situation, it does mark the end of any attempt he can make to hold Goodyear liable for his injuries.

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