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Statistics and 'Substantial Certainty'

By Jerome M. Staller, Ph.D. and Lawrence M. Santucci

An interesting case in New Jersey might provide an answer to a significant question on employers' liability under workers' compensation statutes and, by association, manufacturers' liability under defective-design theories. The issue: How does a plaintiff prove “substantial certainty” of injury in order to proceed under common law standards against the employer, as opposed to recovering under workers' compensation?

Workers injured in workplace accidents often make a claim against the manufacturer of equipment or machinery involved in the injury as well as against the employer; in virtually all jurisdictions an employer's liability is substantially limited by workers' compensation statutes. However, manufacturers of workplace equipment are not so protected, allowing the worker to sue the manufacturer under common law standards.

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