City of Littleton and CCMSI v. Industrial Claims Appeals Office, Julie Christ, and Michelle Parris 2012COA187 (November 1, 2012)

Radiation causes cancer; does being a firefighter also cause cancer? Causation is never that simple, as this 68 page opinion and dissent demonstrate. In this case, a firefighter gets brain cancer and claims it was related to his employment and the hazardous chemicals to which he was exposed on the job. The central issue on appeal is what evidence the fire district must present to prove that being a firefighter did not cause the cancer? In a typical toxic tort case, the burden would be on the firefighter. But in Colorado there is a special statute that shifts the burden to the employer to prove that the employment could not have caused cancer, and that it did not cause cancer in this firefighter. The court found the employers’ evidence did not meet that burden because it could not disprove the presumption that employment-related exposure to toxic substances was the source of the cancer.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA1494-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8721&courtid=1

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1 Comment

Filed under Evidence, Government, Personal Injury, Torts, Workers Compensation

One response to “City of Littleton and CCMSI v. Industrial Claims Appeals Office, Julie Christ, and Michelle Parris 2012COA187 (November 1, 2012)

  1. This is a workers’ compensation case. So the ultimate question is whether the employee’s medical bills will be paid by workers’ compensation because the injury was related to the employment. Both the majority and dissenting opinions spent a significant amount of time addressing the nature of causation, in which exposure to a toxic substance is alleged to be the source of cancer with a long latency period. In particular, the majority opinion explained in detail both traditional toxic tort causation standards, the evidence necessary to prove causation, and the ways in which those evidentiary standards are reversed under the Firefighter Statute.

    The key to this case is understanding that typically the most difficult fact a plaintiff must prove is a link between exposure to a substance and cancer. Under the common law, a plaintiff must show general causation—a particular substance is capable of causing cancer — and specific causation—the plaintiff was exposed to the particular substance, and it actually did cause the cancer for which the claim is made.

    But firefighters are exposed to unknown substances over a period of time, in unknown doses, which may or may not target the particular organ that is cancerous. The Firefighter Statute at issue in this case creates a presumption that firefighters are exposed to cancer-causing substances, and if the firefighter gets cancer, it was this exposure that caused the cancer. Additionally, it puts the burden on the employer to show that the cancer did not result from exposure to cancer-causing substances on the job. The majority holds that absent evidence that all potential employment-related causes for the cancer could be ruled out, the employer is responsible for the care and treatment of the employee.

    The dissent disagrees that an employer must rule out all potential alternate causes of the cancer to overcome the presumption that the substances to which a firefighter is exposed cause cancer. The dissent would formulate the presumption more narrowly by assuming that firefighting activities were capable of causing the particular cancer at issue. That is, if the cancer at issue could not be caused by any of the substances that a firefighter could be plausibly exposed to on the job, then it should not be presumed that exposure to any substance caused the particular cancer at issue.

    In this case, the firefighter had a particular form of brain cancer. The scientific evidence shows that the only known factor that increases the chance of getting that form of brain cancer is ionizing radiation, such as would be found after an atomic explosion or therapeutic dose of radiation focused on the head. Under the dissent’s analysis, if the firefighter has not been plausibly exposed to either source of radiation on the job, then it would be reasonable to conclude that the firefighter’s cancer was not caused by his employment as a firefighter. If that conclusion is supported by the evidence, which the dissent would find it was, then the presumption created by the statute is overcome, and the employer has successfully claimed that the cancer was not related to the job.

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