Torts Class Notes 10/20/03




But-for causation asks the question: Did the defendant’s negligent conduct cause the plaintiff’s harm?  But for the negligent conduct of the defendant, the plaintiff’s harm would not have occurred.


We don’t want defendants to be negligent; however, we won’t hold them liable if the harm would have happened either way.


On the other hand, we may hold some defendants liable if their negligence significantly increases a risk.


Kramer Service, Inc. v. Wilkins


Wilkins was cut by a piece of glass in a hotel.  It was found that the hotel’s negligence was responsible for the cut on his head.  Skin cancer developed at the site where the cut occurred.  The plaintiff wants to sue for both the cut itself and for the harm of the skin cancer.  There’s a correlation vs. causation problem here.  There are a lot of potential causes for cancer.  Maybe the cut on the head is one of the least likely.  The plaintiff would argue that it is a very strange coincidence that the cancer developed at the same site as the cut.


What was the expert testimony here?  It was that was possible, but not certain, that the cut caused the cancer.  This isn’t a high enough likelihood to get to the jury.  The defendant will argue that this isn’t the most likely explanation.


How is this case different than Reynolds (the fat lady falling down the steps)?  It could be argued that not lighting the stairs is far more likely to cause a fall than a cut could cause cancer.


There is an expert testimony issue here: the plaintiff’s expert says that there may be causation, while the defendant’s expert says there is no causation.


Wilder v. Eberhart


The plaintiff was under the defendant’s care for obesity.  The plaintiff had her stomach stapled.  Her esophagus was injured.  She sued for medical malpractice.


The plaintiff’s experts said that the injury could have only been caused one way.  The defendant’s experts were going to say that there may be other possible explanations.  The court did not allow the latter testimony, focusing on the idea that the explanations are only possible.


You can’t let the plaintiff control the case by having an expert who is willing to say that “this is the way it happened” and thus short-circuiting the defendant’s opportunity to explain alternative causes.  The explanation does have to add up to a rebuttal of the plaintiff’s case.


“In limine” means outside the presence of the jury.


Herskovits v. Group Health Cooperative of Puget Sound


This is a “pretty tricky little case”.  Herskovits died of lung cancer.  He was negligently misdiagnosed.  It is assumed that the failure to diagnose caused a 14 percent decrease in his chance of survival.  The question is whether, more likely than not, you lost your chance of living due to the defendant’s negligence.


In this case, the plaintiff was already mostly unlikely to survive.  It is fair to not allow anyone to collect if they have less than a 50 percent chance of surviving overall?  The court disagrees with this rule.  It argues that the negligent misdiagnosis is a substantial factor leading to the plaintiff’s death.


If you reduce a 49% chance of survival to 1%, you probably should be found liable for your negligence.  On the other hand, if you reduce the chance of survival from 49% to 48% or 2% to 1%, we may not want to hold the defendant liable or quite as liable.


This is a hard case.


Loss of chance


You can either show that (1) the harm was more likely than not, or (2) there was a loss of the chance that the harm would be avoided (less than 50%).


Daubert v. Merrell Dow Pharmaceuticals, Inc.


This is one of the few cases that made it to the Supreme Court.  The Supreme Court decision, however, is not the one in our book.


This case deals with what expert testimony we will allow in negligence suits.


This case supercedes an older rule that came from Frye: Expert testimony must be based on scientific principles that are generally accepted in the scientific community.


This was a suit against Merrell Dow alleging that one of their drugs caused birth defects.


What does a trial judge have to do with scientific testimony or evidence?  What criteria will a judge look at?  Under the new Daubert rule, the trial judge must be satisfied that the scientific knowledge is (1) helpful to the jury and (2) derived from a decent scientific method (based on “good grounds”).  This is a pretty broad standard.


The Supreme Court also gives some factors to be taken into account:


·        whether the theory or technique is generally accepted,

·        whether the theory has been subject to peer review,

·        whether the theory can be tested, and

·        whether the error rate is acceptable.


The Ninth Circuit also adds the question of whether the experts are testifying in their area of expertise.  The court noted that many of the plaintiffs’ expert witnesses had never done research on the drug in question.


So why does the court reject the experts in the present case?  The expert testimony had not been subject to peer review.  It didn’t meet several of the other qualifications either.


Is this case spurious?  Cole thinks so.


What courts are bound by Daubert?  Because the Supreme Court interprets the Federal Rules of Evidence, state courts are not bound unless they adopt the FRE.


Why is California tort law relevant here?  Why do we look at state tort law?  What kind of case is this?  Why could this have been filed in federal court?  It’s because the parties are diverse.


You can recover for increased risk of harm.  If you can establish by expert testimony that your risk of some harm is increased by a certain percentage, you can recover for that.  It’s really hard to prove, though.


Concurrent causes


The biggest problem with but-for causation is having two causes acting at the same time.  When two negligent forces act at the same time, how do you figure out liability?  How do you establish that either one is the but-for cause?


Hill v. Edmonds


The defendant left his truck in the middle of the road without lights.  The plaintiff ran into the truck.  The trial court originally blamed the plaintiff and said that contributory negligence bars recovery.


If both parties are negligent, how do you figure out causation?  The court finds that liability must be apportioned between the plaintiff and defendant.  In a comparative negligence case, if the plaintiff is more negligent than the defendant, the plaintiff generally won’t recover.


When two acts of negligence combine to cause some damage, each tortfeasor is liable even though either act alone wouldn’t have caused the injury.


Sue everybody, and have the jury apportion the liability.  If you have two forces acting at the same time and both forces are the possible cause, you just sue both and sort it out later.


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