Causation in Fact Flashcards
“But for” test
A test for causation that asks whether a particular result would have occurred if it were not for a particular action.–> X is a necessary condition to P’s harm
Cause in Fact Burden of Proof
D’s negligence cause P’s harm by preponderance of evidence–>51% or greater!
Stubbs v. City of Rochester
But For Cause
• F: D mixes and contaminates water supply, P gets typhoid from drinking that water
• Holding: even though expert listed 9 causes of typhoid, P sufficiently proved that D’s contamination of the water supply was causative, thus should go to jury
• D argues that P must eliminate all other causes in order to recover, court disagrees
• Rule: If the kind of negligence in question causes the kind of harm in question and P establishes a reasonable certainty that it did lead to the harm, then the case may go to the jury
Anderson v. Minneapolis
Multiple Sufficient Causes: Substantial Factor
• • F: Two separate, negligently-started fires simultaneously arrive at the home of P. One started by Railroad, other actor unknown. No clear but for cause
• H: Where separate acts of negligence combine to directly cause a harm, each tortfeasor is liable for the entire harm, even though each act alone may not have caused it. Accordingly, if it is not clear who one of the tortfeasors is, the other tortfeasor is liable for the full injury.
• Look to substantial factor rather than but for cause. This is Restatement method for testing causation
Basko v. Sterling Drug, Inc.
Multiple Sufficient Causes: Substantial Factor
• F: P blinded by some combination of 3 drugs manufactured by D.
• Court recognized difficulty of establishing but for cause when each one independently could’ve caused blindness
• H: Causation would be satisfied if D’s negligence was substantial factor in producing the harm caused
Zuchowicz v. United States
Multiple Sufficient Causes: Substantial Factor
• F: P told to take 2x the maximum dose of drug for one month, subsequently diagnosed with PPH (rare and fatal disease); 2 experts testify for P saying that D’s negligence in prescribing the drug caused P’s disease
• H: Court properly admitted P’s expert testimony, says that there was sufficient evidence to support D’s negligence being substantial factor cause; overdose is sufficient for causation (that’s the purpose of FDA dosage guidelines)
o Test: Negligent act deemed wrongful because act increases a particular type of harm, then that very harm occurs–> then it’s up to negligent party to bring in evidence denying but for cause and that wrongful conduct had not been a substantial factor in causing harm. Otherwise, this is sufficient evidence to show that negligent behavior caused the harm.
o Burden shifting like RIL
Williams v. Utica College
Multiple Sufficient Causes: Substantial Factor
• F: Student sexually assaulted in room. Sued college b/c could’ve had better security
• Key issue: would better security have prevented the attack?
• H: Insufficient evidence that attacker couldn’t have made it into the building if there was better security (since attacker could’ve been a student)
• Retreated from burden shifting of Zuchowicz
• Three factors for whether P can meet burden of proof of causation based only on negligent act and inference:
(1) the existence of circumstantial evidence
(2) the relative ability of the defendant to explain what happened
and (3) a belief that an erroneous judgment against the plaintiff would be more harmful than an erroneous judgment for the plaintiff.
Lost Chance Doctrine
Matsuyama v. Birnbaum
• F: D treated P for 4 years, P experienced gastric pain, was smoker, D did not order any tests; comes back later moles appear, still orders no tests; finally orders test; positive; doesn’t order screening for gastritis or cancer; traumatic episode, P’s cancer finally discovered, dies shortly thereafter
• P’s expert testifies that D was negligent: high risk, low cost of diagnosis
• H: P can recover for pain and suffering and loss of chance – had 37.5% chance of survival when he was first symptomatic, that was reduced to essentially 0% when finally diagnosed (Cancer Stages data) thus can recover 37.5% of full wrongful death damages
• Previously, it was all or nothing recovery. If 51% chance of survival, then P dies, D was liable. If 49%, then even D negligence isn’t actionable.
• To prove loss of chance a plaintiff must prove, by a preponderance of the evidence, that the physician’s negligence caused the injury of diminished likelihood of a more favorable medical outcome
• ∴, theoretically this could apply to someone who lost chance to live but survived
• In loss of chance P bears burden of causation
Notes:
• Case doesn’t say what amount of loss is actionable. Can someone with 49% chance sue for loss of chance down to 45%?
• Some states have barred recovery for loss of chance; or barred when P survives
• Expressed concern about overwhelming use of statistics at trial can confuse the jury, can be unreliable – Fennell v. Southern Maryland Hospital
Lost Chance Damages Calculation
- If prob of survival was 100%, what would be allowable damages if P died?
- Calculate prob survival before malpractice
- Calculate prob survival after malpractice
- Subtract step 3 from step 2
- Multiply that percentage times full damages from step 1
Court limits loss of chance to med mal because there are good statistics to evaluate
Joint and Several Liability
• Jury will apportion % of blame between the D’s generally
• If held joint and several – any D can be on hook for 100% of damages
• Held several – then multiple D’s are liable, but not for all damages
o Under comparative negligence, D’s can obtain contribution from each other
• Purpose of J&S – deterrence (corrective justice) and compensation
• Most states have gotten rid of joint and several liability
Multiple Negligent Defendants
Summers v. Tice
• F: quail hunting case, 2 D’s fire simultaneously, hit Summers; can’t determine which D’s shot hit P because same gauge gun etc.
• H: Both defendants jointly and severally liable; would be unjust to exonerate both since both were negligent, so must hold both liable
• Burden on each D to prove that he did not cause the injury once negligence is established alternative liability theory b/c D has asymmetric/superior information than P (Ybarra, revisited)
Notes:
• Look to if D’s are acting in concert (e.g. street racing) or independently (Summers case)
Hymowitz v. Eli Lilly & Co.
Market Share Liability
• F: Ps injured by DES drug ingested by their mothers during pregnancy; discover latent DES effects; hard to ID the manufacturer because identical chemical composition, 300 manufacturers, pharmacies used mix of suppliers; long latency makes it hard for P’s to recall any characteristics of drug tablet, if applicable
• H: Uses market share liability for DES manufacturers – overall culpability approach
o Apportion liability based on % national market at time when mother took DES
o Alternative liability doesn’t work here because there was no concerted action, only parallel conduct (manufs worked independently) – all were FDA approved
o Manufacturer is severally liable only (no joint liability)
• D can be relieved of liability if they did not market DES for pregnancy use
• Liability apportioned based on risk created to the public
• Dissent – argues for joint and several so that P can recover fully (b/c some manufacturers have ceased to exist)
o Also would exculpate manufs whose pills were unique (e.g. dark red pill) and where P says they took different kind of pill (e.g. white round pill) or where pharmacy only stocked certain brand
• Note: here legislature had moved to revive the cause of action even though statute of limitations had expired
“substantial factor” test
A test for causation that asks whether a particular action played a substantial part in bringing about a particular result.–> D’s negligence necessary and sufficient cause of P’s harm
