Texas PJC Malpractice 2022

P RODUCTS L IABILITY —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS

PJC 70.1

PJC 70.1 Producing Cause—Products Liability “Producing cause” means a cause that was a substantial factor in bringing about the [ injury ] [ occurrence ], and without which the [ injury ] [ occurrence ] would not have occurred. There may be more than one producing cause. COMMENT When to use. PJC 70.1 provides a definition of “producing cause,” which is gen erally the proper causation standard for a strict liability submission. See Rourke v. Garza , 530 S.W.2d 794, 801 (Tex. 1975). Use of “injury” or “occurrence.” See PJC 71.1. Source of definition. See Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 46 (Tex. 2007). Causation in toxic tort cases. If the evidence shows that exposure to a toxic product was a cause of the injury or death in question, the plaintiff must prove that the exposure was a substantial factor in causing the injury or death but is not required to prove that the injury or death would not have occurred but for such exposure. See Bos tic v. Georgia-Pacific Corp. , 439 S.W.3d 332 (Tex. 2014); Borg-Warner Corp. v. Flores , 232 S.W.3d 765 (Tex. 2007). In such cases, the following definition of “pro ducing cause” should be submitted: “Producing cause” means a cause that was a substantial factor in bringing about the [ injury ] [ occurrence ]. There may be more than one producing cause. Deletion of “contributing” and “in a natural sequence.” Both “contributing” and “in a natural sequence” are omitted from the definition of “producing cause” above. The supreme court did not retain those words in its analysis. See Ledesma , 242 S.W.3d at 46. However, the court did not criticize either of those concepts, and it may be appropriate to retain one or both of those concepts in an appropriate case. Caveat—“unavoidably unsafe” products. The Committee expresses no opinion on the applicability of the producing-cause standard to “unavoidably unsafe” products involving a foreseeability element. Courts have recognized that certain products, though manufactured as designed and intended, are “unavoidably unsafe.” Manufac turers of such products—for example, prescription drugs—are generally not liable for resulting harm absent proof that the manufacturer knew or reasonably should have known of the risk of harm at the time of marketing. Restatement (Second) of Torts § 402A cmts. j, k; Restatement (Third) of Torts ch. 1 topic 2—Liability Rules Applica ble to Special Products, §6 (“reasonable instructions or warnings regarding foresee able risks of harm”); cf. Crocker v. Winthrop Laboratories , 514 S.W.2d 429, 433 (Tex.

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