On Approaches To Uncertain Causation In American Tort Law

Uncertain causation in tort law refers to the following situations:damage may be caused by the tortious conduct in question, or by other reasons, so that the victim cannot establish causation according to applicable standard of proof. While uncertain causation includes but not just limited to multiple tortfeasors, it’s extension is broader than "alternative causation" used by Chinese tort law scholars. It is hard to make choices in situations concerning uncertain causation---to compensate or not, to compensate all of the damage or only part of it, joint and several liability or several liability, resorting to tort law system or other compensation systems. Due to the great exploration and research to uncertain causation in American tort law, this essay discusses it thoroughly and tries to find out the better way for China.The general stance of uncertain causation in American law is that the plaintiff can not be compensated. It is determined by substantial standard, standard of proof and the allocation of burden of proof. Generally, there are two substantial standards in factual uncertain causation:the rule of "but for" and the special rule about multiple sufficient causes. They both require that tortious conduct must factually caused the harm. However, under the circumstances of uncertain causation, the fact that tortious conducts in question only possibly cause the harm leaves the standards unsatisfied. Moreover, the higher the standard of proof is, the higher probability of uncertain causation occurs. The allocation of burden of proof determines who will suffer the adverse influences. The standard of proof in America is preponderance of evidence and shall be shouldered by the plaintiff. Therefore, the plaintiff always cannot obtain relief if the common standards are followed, which is obviously unfair in many cases and frustrates the realization of the goal of damage prevention. In order to rectify this situation, American courts take two approaches in tort law systems:shifting the burden of proof and redefining damage.As concerns the shift of burden of proof, there are many doctrines as follows in American tort law. Firstly, presumption of causation and creative application of res ipsa loquitur shift the burden of producing evidence to the defendant in some states. Secondly, the doctrine of alternative liability which has been widely accepted in America shifts both the burden of production and persuasion to the defendant. The Restatement (Third) of Torts re-summarizes the doctrine on the basis of practices after the second. In order to apply that doctrine, the following preconditions must be satisfied: each conduct must be tortious, the connection between conduct and damage must be close, the damage is caused by some uncertain actor, the plaintiff joins all actors in action, and it is reasonable for the plaintiff’s inability to prove who caused the damage. As the development of tort law, the liability of actors has changed a lot. When multiple defendants are held liable pursuant to alternative liability, whether liability is several, joint and several, or some hybrid, depends on the law in the applicable jurisdiction. Thirdly, market share liability also shifts the burden of proof to the defendant. It is not widely applied in spite of great attraction. Beyond DES cases, the court refuses to apply the rule just because the products in question are irreplaceable.Moreover, the courts in America try to make a resolution by redefining damage. One approach is that more and more courts recognize the loss of chance for treatment as damage that should be compensated by the defendants proportionally in medical malpractice cases, which has been affirmed by the third restatement. The other approach is that in toxic torts, some courts permit the plaintiff to claim damages for medical monitoring expenses, fear of disease, and the expected value of risk increase before actually getting sick. The plaintiff overcomes the obstacles in uncertain causation and gains advantages in terms of time furthermore under this approach.We could draw references from the approaches to uncertain causation taken by American courts. Tort Liability Law of China has provided several presumption rules about causation, including alternative liability regulated in Article 10, presumption of causation prescribed in Article 66. As far as the author’s concern, we could learn something from the American law. In terms of alternative liability in Article 10, we should add another condition, i.e. It is reasonable for the plaintiff’s unable to prove who caused the damage. We should make a balance between Article 10 and Article 11 & 12. The tortfeasors under article 10 should bear several liability. In terms of the interpretation of Article 66, the plaintiff has to make a prima facie proof while what shall be proved can follow the way that toxic torts takes in America. The author insists that we should not transplant market share liability, because the doctrine is even immature in America and may be improperly applied in China.As far as loss of chance approach in medical malpractice cases, we shall pay more attention to its background. The rule of "all or nothing" is applied in America while proportional causation approach is adopted in China. By the conception of contribution, the probability of causing harm is turned into causation so that the plaintiff can be compensated accordingly. It is a good choice and we can get improvement in reference to the substantial content of loss of chance approach. But transplanting the approach as a whole is not recommended. Moreover,it is suggested to make a breakthrough to the current civil law by introducing medical monitoring damages in certain cases.