Whose Responsibility Is Causation?

Our friends from Faegre Drinker have not only once again come up with a great article, but also got us thinking about an issue of importance to our FVS brethren and sisters. The issue is causation in damages cases.

The article, titled "Missing the Mark: Summary Judgment Granted Where Plaintiff’s Experts Opine on Defect but Fail to Support Causation,"1 discusses the issue of proving causation in a product liability case. While the article is limited to product liability, those of us who provide expert testimony in damages cases in general realize that causation is an issue in all of those cases. And, in all of the cases, as indicated in the article, the plaintiff has the burden of proof as to the causation.

The case in the article, Slatowski v. Sig Sauer, Inc., 2024 U.S. Dist. LEXIS 42905, is a situation where the plaintiff was an ICE agent who was injured when his pistol  fired unintentionally during a marksmanship training exercise.2 The court ruled that expert testimony was necessary in order to substantiate causation and the plaintiff’s two experts failed to prove that. “Ultimately, Slatowski is a good illustration of a court keeping the individual elements of a claim separate and demanding that a plaintiff properly support each element with admissible expert evidence.”3 

If you are presenting damages in a case as an expert, you need to confirm with the attorney who is responsible for determining and presenting causation. Certainly, most of us would be unable to prove causation in a case such as Slatowski. In my experience, it is more often than not that I am not qualified to prove causation.  While an expert is likely needed to do so, that expert will often be a separate expert who can provide the proper technical testimony and support. As a damages expert, I always felt the need to have a discussion on the causation issue and what the attorney’s expectations in that regard might be of you. It would be a disservice to your client to have not covered this issue well in advance.

1 Eric M. Friedman and Dona Trnovska Gilliland, "Missing the Mark: Summary Judgment Granted Where Plaintiff’s Experts Opine on Defect but Fail to Support Causation," Faegre Drinker on Products.
Id. (I urge our readers to read the full article to get a more detailed review of the issues the experts faced and failed on.)