Causation in Tort: General Populations vs. Individual Cases:

Abstract:
To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant’s conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently.

Such an assertion bears more than just a furrowed brow: the statistical likelihood of an event happening does not show the likelihood of the event happening?

“More probable than not” is a classical statistical analysis, but Sunstein and Meadow think it’s inappropriate to use statistics showing an event is more probable than not to prove that the event was more probable than not. That’s how we know important facts like  how Topamax causes birth defects and vinyl chloride causes cancer — facts which demonstrate liability.

Why would someone make such a disingenous argument?

Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk.

I see: to make it harder for those hurt by others to obtain justice.

It’s old-hat to speak of the military-industrial complex. But that wasn’t the only concern on Eisenhower’s mind:

The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present and is gravely to be regarded.

The whole speech is worth a read and frequent re-reads.