In order to establish factual causation in the context of medicinal product liability, claimants must prove both general causation ("whether a substance is capable of causing a particular injury or condition in the general population") (10) and specific causation ("whether a substance caused a particular individual's injury").
As in the UK, US courts often bifurcate both specific and general causation elements (see Joseph Sanders, "The Controversial Comment C: Factual Causation in Toxic-Substance and Disease Cases" (2009) 44:4 Wake Forest L Rev 1029 at 1032).
In homicides, factual causation
occurs where a person's death would not have resulted 'but for' the original act or omission that ended in the death of the person.
Among his topics are defenses and privileges, negligence, factual causation
, failure to act, limited duty, products liability, immunities, trespass and nuisance, defamation, and invasion of privacy.
Prudential's concerns seem in part to have motivated recent developments in the approach courts take to factual causation
, such as the development of the concept of 'material contribution to risk' as the test of causation in cases of evidential uncertainty (37) and the effective circumvention of the rules on causation in Chester v Afshar.
In order to determine factual causation
, courts adopt the same "but for" test used in criminal cases: "but for" the defendant's tortuous conduct, would the claimant's loss have occurred.
117) See Russell Brown, "Material Contribution's Expanding Hegemony: Factual Causation
after Resurfice Corp.
If taken as a factual causation
test, one is forced to make sense of "but for.
1) By a 3:2 margin the court held that factual causation
in medical malpractice cases should not be resolved on a loss-of-chance basis.
Courts began to scrutinize the scientific evidence employed and to examine carefully the bases for an expert's opinion on factual causation
This problem, which is typically conceptualized as one of "reference classes", (120) is implicated in factual causation
Had she done so, the action would have proceeded as a simple question of uninformed consent, and the issue of factual causation
would have been a matter of assessing the credibility of her claim.