Abstract

The meaning of cause in civil law differs from its meaning in scientific applications. Civil law is a dispute resolution process and must reach a decision attributing an observed harm to the defendant’s acts or omission at the conclusion of a trial. In contrast, when the evidence in favor of a causal relationship is not conclusive, scientists can carry our new studies designed to resolve open issues. Courts often require plaintiffs in tort cases to prove that “but for” the acts or omissions of the defendant, they would not have suffered harm. In cases arising in securities law and in fraud or misleading advertisement cases, plaintiffs only need to show that the defendant’s actions or inactions were “material” to their suffering a loss. A very current case concerning a different statistical error will also be discussed. The first case is one where plaintiffs, who suffered loss of smell after using a product lost all tort law cases requiring “but for” causality, while investors prevailed in a securities law case using the “materiality” criterion: Was the information about adverse reports the company withheld material” to a potential investor? Many nations have laws protecting the trademarks of well-known products from infringement and from competitors from advertising that misleads potential consumers. Such ads might make some consumers believe the product was made by the competitor instead of the or that the competitor’s product is superior. Consumers are also protected against misleading advertisements that induce them to purchase items that are inferior to what is advertised. Properly conducted surveys can show that a reasonable fraction of consumers is misled by the ads. The use of a survey in the case against Trump University which concerned the issue of whether the misleading advertisement, vastly exaggerating Mr. Trump’s involvement with the University, material to a potential student’s decision to enroll. Survey evidence was used to demonstrate that a reasonable fraction of potential students was misled. The decision to accept the survey noted the difference between surveys designed to satisfy the but for criteria. The case was settled for $25 million in 2016. A current case concerns the casual assumption of independence in a recent Federal Appeals court decision. The potential impact may be substantial as it is likely to make it more difficult for plaintiffs to obtain a preliminary injunction, to temporarily stop a business fraud or scam until the trial is over (which can take several years in civil cases.)