Big news--Toxic Tort Lawsuits Now Easier to Win in Michigan

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Toxic Tort Lawsuits Now Easier to Win in Michigan

By Saulius Mikalonis

December 22, 2009, 1:53PM

The Michigan Court of Appeals in a case called Genna v recently

ruled that plaintiffs alleging injury from exposure to mold did not

have to present an expert witness to prove that they had suffered

physical ailments as a result of exposure to mold. According to the

court, it was enough that mold was present and that the plaintiffs had

physical ailments that could be attributed to mold exposure, even

though they did not present a witness that could make a causal

connection between the exposure and the injuries that the plaintiffs

allegedly suffered. The court left it to the defendant to disprove

that the mold exposure did not cause the alleged illnesses.

One of the classes any first year law student must take is one

called " torts. " Torts is the area of law that describes lawsuits for

things like personal injury or property damage outside the realm of

contract law. To maintain a cause of action for a tort, the plaintiff

has the burden of proving (1) that the defendant owed a particular duty

to the plaintiff, (2) that the defendant breached that duty, (3) the

breach of that duty was the cause of an injury to the plaintiff, and

(4) that the plaintiff suffered damages as a result. Without any one

of these elements, there is no cause of action against a particular

defendant. If the plaintiff is able to present a prima facie case (there is

enough evidence to present to a jury according to a

judge), then the burden to disprove any of these elements falls upon

the defendant, but not before. This is basic tort law every first-year

student learns.

Of course, tort law is not as simple as all that, but I've described

the bare bones of it. The devil is in the details of each of the

required elements. The element that the Jenna v case deals

with is number three, the plaintiffs' burden to establish causation.

Normally, when dealing with complex scientific and medical detail, it

is necessary to rely on expert witnesses to provide the necessary

detail to juries, who likely do not have the necessary expertise in

complex cases.

The Genna Court, however, decided that it was not necessary to use

expert testimony to tie the plaintiffs' claims of illness to the type

of exposure, although often such a determination would need medical

testimony that can connect the exposure to a specific illness that the

plaintiff has suffered. The medical doctors who treated the Genna

plaintiffs could not state with a scientific medical certainty that the

plaintiffs suffered a direct harm as a result of mold exposure, but the

court determined that a lay jury could. It then required the

defendants to disprove the medical conclusion without it ever being

introduced by the plaintiffs in the first place.

As it stands now, the law in the State of Michigan is that in toxic

tort lawsuits, plaintiffs need not necessarily establish medical

causation with respect to their claimed injuries. It is enough that

they can prove that an exposure occurred and that their symptoms are

consistent with exposure to that type of toxic substance. This would

presumably hold true for mold exposures, as well as exposure to any

sort of substance or cause, even electromagnetic fields. This eases

the plaintiffs' burdens in such suits and makes them easier to win.

http://blog.mlive.com/green-blawg/2009/12/toxic_tort_lawsuits_now_easier.html