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Abstract: Due to the difficulties of proving causation in most toxic tort suits, plaintiffs and defendants in toxic tort litigation have begun to develop and use scientifically sophisticated risk assessments as evidence in proving or disproving causation. This use has led to two new trends in tort liability. First, there is the trend in which risk assessment is used by plaintiffs to buttress claims for future injury or increased risk. Second, there is the trend in which risk assessment is used by defendants to establish that other factors caused, in whole or in part, plaintiffs’ injuries.
This article evaluates these two recent trends by describing and evaluating the applicable traditional legal doctrine, the recent case law establishing the trend, the manner in which risk assessment is used as evidence in the recent cases, the academic commentary on the trend, and the likely future development of the trend. After this evaluation, the article concludes that although use of risk assessment by plaintiffs to establish increased risk and by defendants to prove alternative causation is relatively recent, it has already had a substantial effect on tort liability and will continue such impact in the future, and therefore are of substantial risk to all possibly parties in such toxic tort litigation.
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