CAUSE-IN-FACT GENERAL RULE: WITHOUT WHICH NOT TEST—Plaintiff must show that more likely than not, without the negligence of the Defendant, the harm would not have occurred. Problem in attorney malpractice cases: proving causation and harm—must show that without attorney’s malpractice, client would have won case and for how much. Example: Negligence in not informing client of ADR—client must show that he would have pursued ADR if informed, that other party would have agreed to do same, and what result would have come of ADR process. MORE LIKELY THAN NOT
Reynolds v. TX & Pac. RR 1885: Fat lady rushed out of passenger car trips on poorly-lit stairs. Defendant argues that lady could have fallen in daylight. Rule: Mere possibility that event might have happened without negligence will not break chain of causation when negligence greatly multiplies chance of accident or negligence is of a character which naturally leads to its consequence. Kramer Services v. Wilkins 1939: Glass falls from door, cuts Plaintiff’s head, cancer develops there later; Rule: causation is not possibility but probability. Expert testimony must reveal that it is more likely than not that cancer resulted from cut.
♦ EXPERT TESTIMONY Proof of causation may require expert testimony if it involves understanding beyond ordinary person. Tests for admissibility of expert testimony: → Frye Test: scientific evidence admissible if based on scientific technique generally accepted as reliable within scientific community. → Daubert Test: Part I: Expert testimony must reflect scientific knowledge, derived by scientific method, resulting in “good science.” Indicators: theory generally accepted by scientific community, theory can and has been tested, potential rate of error is known and acceptable, theory has been subject to peer review, and research conducted independent of litigation. Part II: Expert testimony must fit case and be “helpful” to finder of fact.
NEGLIGENCE
Indicators: must be valid scientific connection to pertinent inquiry. In case of causation, theory must reveal that there is a “more likely than not” relationship between Defendant’ conduct and harm caused.
Daubert v. Merrell Dow Pharmaceuticals 1995: Benedictin babies bring suit for birth defects; no liability because experts failed to show that drugs more than doubled the risk of defect in Plaintiffs. Policy: requiring “more likely than not” rather than “increase in risk” standard protects Defendant from paying for harm he did not cause.
EXCEPTIONS TO WITHOUT WHICH NOT TEST: PROBABILITY NOT REQUIRED ♦ LOSS OF CHANCE TO LIVE Unlike other causation cases in which proof of probability equals liability for 100% of damage, here actor is liable, when his act or omission increased risk of decrease in victim’s chance of survival, for the value of the percentage decreased. Damages = (% reduction in chance of survival) x (value of life). → If original chance of survival before encounter with actor’s negligence was higher 50%, then actor may be liable for full damages—i.e. full value of life lost.
Herskovitz v. GHC of Puget Sound 1983: Both parties concede that negligence of physician caused 14% decrease in chance of survival when failed to diagnose lung cancer; MD pays 14% of value of life.
♦ TWIN FIRES (EACH ACTING INDEPENDENTLY WOULD HAVE CAUSED LOSS) If either of two causes would have independently caused the loss, Plaintiff may merely prove that Defendant’s negligence was a substantial factor in Plaintiff’s loss.
Anderson v. Minneapolis RR 1920: A fire started in bog by spark from train combined with independent fire and destroyed Plaintiff’s property. Rule: No “but for” causation required since damage was result of two actively operating forces, only one of which the defendant had control or was responsible for. Need only prove that Defendant’s force was substantial factor in damage.
♦ TWIN GUNS (EACH ACTING INDEPENDENTLY MIGHT NOT HAVE CAUSED LOSS) If either of two negligence causes could have caused loss, shift to each Defendant the burden of proving that he did not cause the loss. If burden not met by either, there is joint and several liability.
Summers v. Tice 1948: Defendants’ negligently fired at quail in direction of Plaintiff; one bullet struck him in eye. Rule: Because Defendants acted in concert, jointly causing harm and making identification of faulty party impossible, burden of exoneration is shifted to each to absolve himself if he can.
NEGLIGENCE
Hills v. Edmonds 1966: Plaintiff passenger in car which collided with tractor truck that was parked in middle of road on stormy night with no lights. Two Defendants, which acting together created cause-in-fact, but whose individual negligence would not have caused the harm—driver of truck not paying attention and owner of truck who left it in road. Rule: Each is responsible for enti re result.
♦ ENTERPRISE LIABILITY Small number of alternate negligent causes, all before the court, and delegation of safety standards to a trade association. Hall v. Du Pont: ♦ MARKET SHARE LIABILITY Large number of alternate negligent causes and manufacturers of a substantial percentage before the court. Sindell v. Abbot Laboratories 1980:
NEGLIGENCE