Check Your Charge–“Producing Cause” No Longer Efficient or Exciting

Patrick J. Dyer

            For most folks, the concept of “producing cause” has probably never been either efficient or exciting.  But for civil trial lawyers, the concept has for decades been defined using those exact terms, at least until now.  In Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007), the Texas Supreme Court tossed out the old definition embraced in the Texas Pattern Jury Charges and adopted a more modern definition.

            “Producing cause” is the causation standard that has long applied in products liability cases.  It differs from “proximate cause” in that “producing cause” does not require foreseeability.  PJC 70.1 of the Texas Pattern Jury Charges defines “producing cause” as “an efficient, exciting, or contributing cause that, in a natural sequence, produces the occurrence [or injury].  There may be more than one producing cause.”  This is essentially the definition given to juries for more than 40 years. 

            In Ledesma, the defendant challenged the definition as an incorrect statement of Texas law.  The Supreme Court agreed.  The old definition, the Court stated, is “incomplete and, more importantly, provides little concrete guidance to the jury.  Juries must ponder the meaning of ‘efficient’ and ‘exciting’ in this context.  These adjectives are foreign to modern English language as a means to describe a cause, and offer little practical help to a jury striving to make the often difficult causation determination in a products case.” 

            Instead, juries should be instructed that “producing cause” is that cause which is “a substantial factor in bringing about an injury, and without which the injury would not have occurred. There may be more than one producing cause.”  This formulation better conveys the two essential components of “producing cause:” “(1) the cause must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one without which the event would not have occurred.”

            Although the opinion addressed the definition only within the context of a products liability case, the new definition will likely be used in other types of cases which also use the “producing cause” standard.  The Texas Deceptive Trade Practices Act is the most notable of these. 

March 14, 2008