The Rules of the Game: What Recent Rulings Say About Courts’ and Regulators’ Differing Approaches to Establishing Causation for Chronic Health Risks

Abstract

Society uses different kinds of organizations to control chronic health risks, including regulatory agencies and courts. For the most part, the agencies attempt to reduce future risks through regulation and enforcement, while the courts apportion responsibility for past injuries through the tort system. Both, however, share a common data base, evaluate widely differing kinds of evidence, conduct fact-finding, follow published decision rules, and render judgments on causation. Recent court decisions that deny claims for alleged injuries from polychlorinated biphenyls, Agent Orange or Bendectin^R exposures have established a pattern regarding causation. The courts used standard legal procedures to deny recovery, such as questioning experts’ qualifications, evaluating scientific evidence, dismissing certain theories, and overturning a jury verdict. Collectively, the judgments diverge from conclusions that regulatory agencies typically would reach about causation, although both the courts and agencies would rely on the same scientific elements of a risk assessment, particularly where based on epidemiological data.