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Alder v. Bayer Corp.11/26/2002
Supp. 2d 1217 (D. Colo. 1998). We address Porter only, finding a decision of the Colorado federal district court superfluous in the face of abundant federal Circuit Court of Appeals decisions.
In Porter, the court found a temporal relationship between ingestion of ibuprofen and kidney failure inadequate to support admission of causation testimony where experts admitted that they did not have sufficient knowledge to rule out other causes. 9 F.3d at 616. Although not directly overruled within the Seventh Circuit, this 1993 decision has been overshadowed by more recent cases from other jurisdictions. The Fourth Circuit Court of Appeals in Westberry held that "a temporal relationship between exposure to a substance and the onset of a disease or a worsening of symptoms can provide compelling evidence of causation." 178 F.3d at 265 (emphasis added). In Zachowicz v. United States, 140 F.3d 381 (2d Cir. 1998), the plaintiff's wife developed and ultimately died of primary pulmonary hypertension following ingestion of an accidently prescribed overdose of the drug Danocrine. Id. at 384. Evidence of causation rested solely on the testimony of two highly qualified experts. Id. at 385-86. Since overdoses of Danocrine had rarely occurred and never been studied, there was no documented connection between the drug and primary pulmonary hypertension. Id. at 385. Nevertheless, the Second Circuit held admissible expert testimony linking the overdose with the disease. Id. at 386-87. One expert based his causation conclusion "on the temporal relationship between the overdose and the start of the disease and the differential etiology method of excluding other possible causes." Id. at 385. He compared the course of Mrs. Zachowicz's disease with other drug-induced pulmonary illnesses. Id. at 385-86. The second expert testified as to the physiological effects that the components of Danocrine could be expected to cause. Id. at 386. The court held the challenged medical testimony admissible.
The Zachowicz court provided a thoughtful review of the theory of causation, stating:
" t is well established that causation 'may be proved by circumstantial evidence,' . . . and that ' he causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.'" Id. at 389 (quoting Shelnitz v. Greenberg, 509 A.2d 1023, 1027, 1028 (Conn. 1986)).
Drawing upon opinions of Chief Judge Cardozo in New York and Chief Justice Traynor in California, the court concluded:
f (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm. Id. at 390.
The court further noted that " here such a strong causal link exists, it is up to the negligent party to bring in evidence denying but for cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor." Id. at 390-91. In the instant case, AGFA's safety specifications mandated ten complete room air exchanges per hour precisely to reduce the risk of toxic chemical exposure. The alleged harm occurred in the absence of adequate air exchange. Under the reasoning of Zachowicz, this alone is sufficient to support causation and AGFA bears the burden of refuting the presumption of "but for" causation.
Individuals routinely feel the effects of a wide array of common phenomena whose mechanisms remain unex
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