Causation in Fact

Question 1

Cause In Fact: The “but for” Clause

Answer 1

“But for the defendant’s conduct would the plaintiff have been injured?”

Question 2

General Causation

Answer 2

Is the activity which defendant engaged in generally capable of causing that harm?

Question 3

Hoyt (1874): Meeting the Prepond. of Evi. Threshold w/General Causation

Answer 3

Court held; Due to the substantial history of chimney emitting sparks which have set fires to buildings around it, and the similar facts surrounding this case, combined they prove liability.

Question 4

Smith (’45): Too speculative = does not meet prepond. of evi. threshold.

Answer 4

Court held that P’s purely statistical prob. circ. evi. fails to provide a preponderance of evidence to make a credible causation claim.

Question 5

Specific Causation

Answer 5

When facts are not clear, did the act, product, etc. actually cause the harm? Benedictin Cases

Question 6

Daubert (’93): The creation of judicial hearings to determine if expert witness can be used

Answer 6

Until this case, expert witnesses were permissible if there expert technique was a generally accepted one within the scientific community, which made it very difficult for plaintiff’s b/c most pharma tort claims arise out of new reactions to new drugs.

Question 7

Sindell (’80): Market Share Theory

Answer 7

Court held that Pharma Companies are responsible for the % of market they share in the area of a negligent tort claim when it is filed and if it is successful.

Question 8

The Substantial Factor Test

Answer 8

When there are two or more causes which occur at the same, but b/c either one would have independently been a “but for” cause and you cannot separate, they are joined together under this test.

Question 9

BOP Shifting

Answer 9

In cases where the “but for” cause is not entirely clear but the P was harmed by either tortfeasor, the BOP is shifted to the D’s to prove which tortfeasor is either the “but for” cause or has more share of the harm caused.

Question 10

Summers (’48): If Dick Cheney had a clone hunting with him and the doc

Answer 10

Court; Even if only one gun caused the harm, since there is no way to prove which gun, they’re both held liable, and it’s on them to prove which one or both pay.

Question 11

Ybarra (’44): Patient cannot prove “but for,” with respect to who injured her during hospital visit, so the substantial test is applied. Also good ex. of Res Ipsa & BOP shifted

Answer 11

“Since injury could have only happened during operation, someone involved screwed up and since no way of knowing who, everyone in contact is liable.”

Question 12

Concurrent Causation Def (BOP shift to D as well)

Answer 12

Simultaneous Causes

Question 13

Dillon (’32): 2 potential causes occur at same time we ask “but for the claimed one, would P have avoided injury or much less injured

Answer 13

MTD denied, b/c court held, “Question of whether electric lines caused death or would fall have caused death, grave injury or mild injury is QOF for jury.

Question 14

Successive Causation (BOP shift to D as well)

Answer 14

One cause follows another

Question 15

Kingston (’27): One fire follows another within minutes, but D cannot prove that damage was caused by both and only nature caused the other.

Answer 15

Since NW fire was by nature, and D’s couldn’t prove that his alone wouldn’t have caused that much damage, he’s liable for all of it.

Question 16

Baker (’70): When successive event is too far removed

Answer 16

Court; P’s prior leg injury caused by D three months ago, was not a successive cause to leg amputation which was directly caused by an errant gun shot.