Toxic Tort Lawsuits Now Easier to Win in Michigan
Tamara R Pearlman
December 22, 2009, 1:53PM
The Michigan Court of Appeals in a case called Genna v Jackson
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 Jackson 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.
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This is a big win for homeowners and apartment dwellers; not to
mention employees in buildings and schools with mold. It's only taken
7 years for us to make it this far...seems like an eternity. Tamara