We are all familiar with the story of Solomon, who faced with the claims of two women for the custody of a baby ordered that the baby be split in half and a proportionate share be given to each claimant. One of the women, presumably the true mother, withdrew her claim so that the baby might be spared. Solomon recognized the spirit of maternal love and awarded the baby to this lady. Over the years other courts when faced with questions of multiple causation have struggled with a similar issue. Is it better to apportion or split the baby so that the claimant gets some remedy but not full justice? Or should the law and the wrongdoer take the victim as they find them, preserving the baby of justice?
Embry's expert commentary discusses the background of occupational disease law in Connecticut and the Connecticut Supreme Court's recent decision in Deschenes v. Transco, Inc., 284 Conn. 479, 935 A.2d 625, 2007 Conn. LEXIS 482 (2007).
Embry concludes that the proximate effects of the Deschenes decision are as unpredictable as the logic of the decision is cloudy. Some practitioners are suggesting that the case is self limiting both as a matter of practice and policy. The result could have been avoided if the evidence had shown that the emphysema preexisted the asbestosis, of if evidence had been produced showing that asbestos and the other work related dust the claimant was exposed to contributed to the causation of the chronic obstructive lung disease, or if the evidence had been made clear regarding the additive nature of the exposures and or pathology. In other words, if a case is presented as a lung injury claim rather than an asbestosis claim, the results will likely be different.
However, the fact that one can try a claim around bad law, is not an excuse for the creation of legal icebergs lurking to sink the unsuspecting. Additionally, faulty small decisions sometimes grow into faulty large lines of law. Indeed some are already arguing that the rational of the case be extended to substitute apportionment for substantial contributing factor across the board. Thus, the full effect of the decision is unknown and unpredictable.
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