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The Problems of Causation: An Accutane Example

January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.

The legal concept of causation is easily understood by simply asking the question – why did it happen? What made an event or injury occur? Typically the law employs a “but-for” test to help determine causality. The test follows that but-for (some event) then (some other event) would not have happened. Generally this test is fairly satisfactory such as in the case of a rear-end collision. But-for the following driver failing to keep proper lookout and apply his brakes timely, the collision into the rear of the vehicle in front would not have happened. Unfortunately, causation is not always so clear. Consider the instance of a house caught in between two separate forest fires, one to the east, and one to the west. Neither fire will necessarily be the “but-for” cause of the house burning down. But-for the fire to the west, the house will still burn down because of the fire to the east and vice versa.

Even when given a test for causation that seems satisfactory, most would be surprised at the theoretical difficulties in proving causation in simple circumstances. Suppose you are pushed in the back while walking down the stairs and subsequently fall and injure yourself. It seems obvious that the person pushing you caused your injuries correct? But what if you had the opportunity to grab handrails before falling and for whatever reason failed to do so? Could not your failure to act, be the cause your injuries? What if the stairs were not properly designed and as a result were difficult to navigate. Could the stair design be the actual cause of the fall?

A recent Accutane verdict in New Jersey highlights how proving causation can be a difficult task for plaintiffs. Generally in order to recover for an injury, a plaintiff needs to prove that an act (or omission) on the part of the defendant caused the plaintiff’s damages. The plaintiff generally must prove that the act or omission could cause an injury and must specifically prove that it did proximately cause his or her injury. In the New Jersey case,Greenblatt v. Hoffman-La Roche, the plaintiffs accused Hoffman-La Roche, the company that manufactured Accutane, of failing to warn them about side effects such as inflammatory bowel disease (IBD) and that the failure-to-warn caused their damages.

The New Jersey jury found against two of the plaintiffs awarding them nothing, and awarded the third plaintiff damages in the amount of 2 million dollars. The case was well publicized because actor James Marshall was one of the plaintiffs. Mr. Marshall played James Hurley on the television show, Twin Peaks, and was Louden Downey, one of the United States Marines charged with murder, in A Few Good Men. Based upon news reports following the trial, causation was the issue that kept the jury from awarding Mr. Marshall and the other losing plaintiff any money for their injuries.

Marshall, and other well known actors testified that IBD had hurt Marshall’s promising career However, according to news reports, Marshall conceded during trial that he had experienced intestinal problems before taking Accutane, but he also testified that the problems he continues to suffer from after taking Accutane are distinctly different from his earlier problems. The acknowledgment of prior intestinal issues may have been the reason why the jury denied Marshall recovery. The other losing plaintiff also had causation issues. Again, according to published reports, the jury believed that Accutane caused the plaintiff’s IBD, but also thought that she would have taken Accutane even if she had been warned about the potential for harm. Thus even though the jury believed that Hoffman-La Roche acted wrongly in failing to warn about the possibility of IBD, they did not award damages to the plaintiff. These cases are good examples of the multitude of ways that causation can be troublesome to prove. Not only does the plaintiff have to prove that Accutane generally causes IBD, but they also have to prove that in their particular circumstances Hoffman-La Roche’s failure to warn about IBD caused their injuries.

Despite the losing plaintiffs’ difficulties in proving that Accutane caused their injuries, the winning plaintiff in the New Jersey case successfully proved to the same jury that Hoffman-La Roche was liable for her injuries. In doing so, she joined all of the plaintiffs who previously prevailed against Hoffman-LaRoche, and who collectively have been awarded to date more than 45 million dollars.