Re: Re: Fw : Edelman.pdf (application/pdf Object)

[Guest guest]

Jeanine,

Yep. Now you are talking " probable cause " . A more recent opinion that is

based more on logic is the Michigan ruling in the case:

_http://statecasefiles.justia.com.s3.amazonaws.com/documents/michigan/court-

of-appeals-published/20091215_C285746_53_285746.OPN.PDF_

(http://statecasefiles.justia.com.s3.amazonaws.com/documents/michigan/court-of-a\

ppeals-publishe

d/20091215_C285746_53_285746.OPN.PDF)

" Proving causation requires proof of both cause in fact and proximate

cause. Case v

Consumers Power Co, 463 Mich 1, 6 n 6; 615 NW2d 17 (2000). “Cause in fact

requires that the

harmful result would not have come about but for the defendant’s negligent

conduct.†Haliw v

City of Sterling Heights, 464 Mich 297, 310; 627 NW2d 581 (2001). Cause in

fact may be

established by circumstantial evidence, but such proof “must facilitate

reasonable inferences of

causation, not mere speculation.†Skinner v Square D Co, 445 Mich 153,

163-164; 516 NW2d

475 (1994). A plaintiff must present substantial evidence from which a

jury may conclude that

more likely than not, but for the defendant’s conduct, the plaintiff’s

injuries would not have

occurred. Id. at 164-165. A mere possibility of such causation is not

sufficient; and when the

matter remains one of pure speculation and conjecture, or the

probabilities are at best evenly

balanced, it becomes the duty of the court to direct a verdict in favor of

the defendant. Id. at 165

(citation omitted). Normally, the existence of cause in fact is a question

for the jury to decide,

but if there is no issue of material fact, the question may be decided by

the court. Holton v A+

Ins Assoc Inc, 255 Mich App 318, 326; 661 NW2d 248 (2003).

Defendant urges this Court to adopt the requirement that, in order to

prove causation in a

toxic tort case, a plaintiff must show both that the alleged toxin is

capable of causing injuries like

those suffered by the plaintiff in human beings subjected to the same

exposure as the plaintiff,

and that the toxin was the cause of the plaintiff’s injury. They urge this

Court to find that direct

expert testimony be required to establish the causal link, not inferences.

We decline to adopt this

requirement. There is no published Michigan case law on this subject. "

As far as contributing cause, one could argue that smoking weakens the

immune system and weakened immune systems make one more susceptible to mold.

Or, one could argue that the sky is always blue on Tues and this was the

contributing factor that should be used to sell doubt of causation as to

probable cause, and if you have a slick enough attorney and a goofy enough

judge...that argument might just fly in the courts.

Someone should write a book of all the absurd rulings that have been made

over this issue in the past 7 years. Blue Sky Tuesday is not that far from

reality.

In a message dated 6/1/2010 7:47:38 A.M. Pacific Daylight Time,

jeaninem660@... writes:

my point is that it shouldn't be. many things could weaken the lungs.

many jobs are a lung hazard, you have a choise to work there or not.

let's say a judge had weakened lungs from being in a fairly sick court

house for many years, his job, his choise.

ignorance is no excuse,right?

than say he got very much sicker from a roof leak at his home and ended up

like us.

are they going to say, you dont get a dime because you choise to work in a

old dusty contaminated court house for 20 years before your exposure and

it may have weekend your lungs and even though the lung damage is probably

the best known effect of mold exposure we are not giveing you a dime because

you may have had weakened lungs before your exposure. and inless he had

some doctors report of problems with the lungs prior to his exposure, who can

say if his lungs were weakened or not. that assumeing, I thought things

had to be proven.

if someone smoked before their mold exposure and had a very physical job

and had no lung problems,no medical records of lung problems, how can you

possably say it was a factor.

>

>

> Pages 5, 8, 22 and 23 for educational purposes looked pretty good in

explaining the concepts of contributory and comparative negligence. In some

jurisdictions, if the court finds you 1% at fault you cannot recover one

penny.

>

> One could make the analogy of asbestos to mold and take it from there.

And the factor of smoking which the defense will bring in. It can be a

harsh rule. This is where I was going with the earlier posted case from

2000. Some cases can be very old and yet be " good law " that the court will

rely on.

>

> This is not an attack on smokers, it is there to show smoking as an

impediment to " recovery " of damages in a Water Damaged Building.

>

> This is not legal advice.

> --

>

> Objet: Edelman.pdf (application/pdf Object)

> À: " ginloi " <ginloi@...>

> Date: Mardi 1 juin 2010, 5h53

>

>

>

>

>

>

> _http://lawreview.wustl.edu/inprint/85/1/Edelman.pdf_

(http://lawreview.wustl.edu/inprint/85/1/Edelman.pdf)