Torts Class Notes 10/21/03




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.




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.


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