On 8/10/00, the NAM filed an amicus brief requesting a rehearing en banc to allow the Ninth Circuit Court of Appeals to reevaluate its initial holding in this toxic tort case. The current decision allows a plaintiff suing under California law to prove causation by merely demonstrating that exposure to a chemical or substance elevated their risk of illness, even if that elevated risk was only one in 100,000. This standard represents a radical and unwarranted departure from previous California law, which required that a defendant’s conduct be "a substantial factor in bringing about an injury."Allowing recovery when exposure slightly increases the possibility of injury, without requiring proof that it actually caused the injury, threatens to dramatically increase the liability of those who manufacture products sold in California. The NAM opposes this unnecessary and unreasonable expansion of traditional product liability principles.
The court issued an order on 9/19/01 withdrawing the controversial opinion.