Torts Class Notes
Review
Daubert
provides a
new standard for courts to use in evaluating scientific evidence.
A
trial court judge is the gatekeeper.
If he or she doesn’t let in the scientific evidence that the plaintiff
or defendant want to present, it will have an impact on proof of causation.
This
seems like a daunting job for a trial judge.
But if we let juries decide such things, why not trial judges too?
Just
because the Supreme Court decided the case doesn’t mean it applies to all courts. Daubert applies to all federal courts
and those state courts that have adopted the Federal Rules of Evidence.
Herskovits
Under
the traditional rule, you must show at least a 50% loss of likelihood of
life. Under the rule of Herskovits,
you can partially recover for a less than 50% loss of likelihood. Survivors do not sue. As a practical matter, only the estates of
those plaintiffs who die bring suit.
In
order to sue under the “loss of chance” theory, the “loss of chance” must be
substantial: it can’t be 1% and probably can’t be 5%.
How
do you calculate the damages? You could
multiply the “loss of chance” times the full damages. In some jurisdictions, on the other hand,
it’s up to the jury. Still other
jurisdictions say that the chance lost is precisely the loss that should be
awarded.
Concurrent
causes
When
two separate acts of negligence combine to produce a single injury, each
tortfeasor is liable even though neither act alone would have caused the
injury.
What
if, due to your negligence, someone dies who was going to die soon anyway? Are you still liable? If so, how much compared to if they weren’t
going to die soon? You will be liable
for your negligence, but it might reduce the amount of the damages you’re
liable for. We won’t award damages for
your entire life as if you had a normal life expectancy.
Substantial
factor test – Anderson v. Minneapolis St. P. & S. St. M. R.R. Co.
Say
there is a negligent actor and an innocent actor. A fire that was started negligently by the
defendant combined with a fire of unknown origin. Is the railroad liable? Is the defendant’s fire a “but for” cause of
the plaintiff’s injury? Clearly no. We don’t know which fire did it, so how do we
decide who to hold responsible?
In
this case, the defendant is found 100% responsible. Is that the right result? Is that fair?
The
“but for” test doesn’t work when two actors are negligent and act at the same
time.