Reynolds v. Texas & Pac. Ry. Co.
37 La. Ann 694 (1885).
Reynolds is the plaintiff who won in the trial court.
Question
Did the lack of lights in the stairway cause her to trip down the hallway?
Rule
If the negligence multiplies the related to event, there can be cause.
Holding
There was cause. Affirmed.
Facts
The plaintiff hurried to catch a train in the evening when they tripped down a stairway that had no handrails and was not lit. She sued for damages.
Analysis
The defendant was negligent (should have had lights and handrails) and there was cause. Although she could have tripped during the day, the defendant’s negligence increased the likelihood that the event would occur.
Takeaway
Although there may be other explanations, if the negligence increases the likelihood, then there can be cause.
Additional Notes
We don’t rely on post hoc and propter hoc: Just because Z came after Y, that does not mean that Y caused Z. The plaintiff has to prove that the negligence greatly multiplied their chances of injury.
You do not need to prove causation beyond all doubt, you just need to prove that “more likely than not” had there not been negligence, then there would have been no injury.
Criminal law = Beyond reasonable doubt
Torts = preponderance of the evidence “More likely than not”
Gentry v. Douglas Hereford Ranch, Inc.
290 Mont. 126 (1998).
Gentry is the plaintiff, spouse of the decedent. Lost in trial court and appealed.
Question
Was there cause?
Rule
Cause requires evidence where it can be reasonably inferred that the negligence conduct caused the injuries.
Holding
There is no evidence, judgment affirmed.
Facts
The plaintiff’s wife was at a friend’s cabin to help paint it while the defendant went hunting. He had returned to the car to fetch his rifle. On his way back he stumbled outside of the house as the plaintiff’s wife was coming out and was caught in the line of fire to the accidentally discharged weapon.
The defendant who tripped filed for bankruptcy and is no longer a part of this claim. So, the plaintiff argued that the ranch was negligent for not properly taking care of the property and that had it been taken care of, the stumble would never have happened.
Analysis
There is no cause because there is no evidence as to what caused the defendant to stumble. He could not recall if he had already reached the stairs, if he had tripped out of clumsiness, or if he had slipped on a rock. He had tripped several times before, but that was a state of his clumsiness. Because the evidence is lacking that the ranch’s state caused the trip, there can be no cause of action against them.
Takeaway
“The possibility of the existence of an event does not tend to prove its probability.”
Additional Notes
Bacon was sued but he declared bankruptcy so he is no longer a defendant. So, “Grandma is getting sued” from Bacon’s clumsiness.
So, what are the claims of negligence against the ranch? The steps had not been maintained. So, the plaintiff says that Bacon stumbled over the steps. In other words, it becomes essential to determine what caused Bacon to stumble. The issue is that Bacon did not remember what he stumbled on. Previously he had stumbled because he was clumsy (nothing to do with the stairs).
Previously he had said in an ex parte statement (on sided), that he thought it was the step. However, this evidence is minimal compared to the disposition.
The evidence here is speculative and so there can be no cause.
Kramer Service, Inc. v. Wilkins
184 Miss. 483 (1939).
Question
Did the injury cause the cancer?
Rule
For there to be an action on negligence, there needs to be actual cause.
Holding
No idea whether there was cause, judgment affirmed.
Facts
The plaintiff had received a cut from falling glass as they walked underneath a doorway. This cut did not heal and two years later the plaintiff developed skin cancer where the cut occurred.
He wanted a jury instruction saying that the cancer was caused by the cut meaning that the negligence of the falling glass would also apply to skin cancer damages. This instruction was refused.
Analysis
There were two expert witnesses. One said that there was 1/100 chance that cancer would have formed there and the other said that there was no chance. Because of this testimony and the fact that we do not know the exact cause of how cancer is formed, there is no way to determine whether the cut caused the cancer.
Additional Notes
There is no such thing as cancer being caused by a traumatic experience.
Defendants are allowed to provide testimony that makes the plaintiff’s burden difficult to prove a certain inference of cause. The defendant’s don’t need to prove these other things (probable), but only that they could happen (possible).
We also discuss informed consent here, recapping what we discussed about causation in Scott v. Bradford. That is, if the person was informed, they would not have consented.
Herskovits v. Group Health Cooperative of Puget Sound
99 Wash. 2d 609 (1983).
Herskovits is the plaintiff, lost in trial court and appealed.
Question
Did the negligence reduce the chance of survival enough to where it proximately caused the person to have no chance of survival?
Rule
We need to exam not only what did occur but also what might have occurred for causation.
Holding
The reduction was significant, there was cause. Reversed.
Facts
The plaintiff’s relation had a doctor’s visit where he was negligently cared for because they did not diagnose him with cancer. The failed diagnosis resulted in a 14% reduction of the chance of survival. He died. Testimony from the plaintiff said that had he been properly diagnosed, he would have had a 75% chance of survival. The defendant argued that he was going to die anyways, having less than a 50.1% chance of survival before the negligence. Originally, his chance of survival was 39% which reduced to a 25% of survival due to the negligence.
Analysis
The failure to diagnose brought about a substantial decrease in the chances of survival. Consequently, they can be found negligent and the cause, even if the subject had a minimal chance to begin with.
Takeaway
Even though they negligence did not more than likely cause the death, there was still cause because of the substantial decrease.
Loss of chance doctrine.
Additional Notes
The defendant’s argument is that the person would have died anyways because his chance of survival was less than 50.1% when the negligence took place.
This was the first case where the court said that a significant reduction can be actionable, even if the chance of survival was already under 50%.
How do we measure these damages? We ask what the actual negligence cost the plaintiff. These can include lost earnings and additional medical expenses. Additionally, one can claim damages from emotional distress (this is where most of the damage comes from). The reason why we don’t want to calculate the “full wrongful death” is because the doctor did not actually cause the death by that point. Another way to measure damages is to say, “here is the full amount for a wrongful death. The doctor reduced chance of survival by 14%. Therefore, the person can collect 14% of that full amount.”
Big takeaway:
- If chance of survival is under 50.1%, then the defendant can be liable for the significant decrease caused to the plaintiff.
- If the chance of survival is over 50.1% and then drops below that, then the defendant can be liable for the entire wrongful death of the plaintiff.
The above case is related to medical malpractice. How does this principle relate to legal malpractice? You have to prove two things. First, that the lawyer was negligent. Second, that the negligence caused the injury to the plaintiff. This second part is a challenge because quite often the client had not been that injured because they were already being paid for an injury (workers compensation. Would need to prove damages more than what workers compensation has paid).
Daubert v. Merrell Dow Pharmaceuticals, Inc.
43 F.3d 1311 (1995).
Need to know this case by name for the final.
Question
“Whether expert scientific testimony is admissible to prove that Bendectin caused the plaintiffs’ birth defects.”
Is there a link between this medicine and the birth defects? How do we prove that causation?
Rule
Rule 702. The evidence may be permitted if it is considered “helpful” to the case at hand.
Holding
Facts
Pregnant mothers were taking Bendectin as a deterrent to morning sickness. However, they claimed that the medication resulted in observable limb reduction of their children.
The expert testimony here was conducted by two expert witnesses who conducted a “reanalysis” of previous studies.
Analysis
The issue here is that the plaintiff experts had not taken steps to have the experiment peer reviewed. That is, other people should be able to replicate the material that they cover. Because this was not subject to peer review the question is whether it is reliable. The court here says no.
Additional Notes
The trial judge is the gatekeeper. That is, the testimony must be provided to the judge who will determine if the evidence is helpful or misleading to the jury.
What are some of the things that the judge should consider when determining if a case is admissible:
- Whether the theory or technique employed by the expert is generally accepted in the scientific community
- Whether it’s been subjected to peer review and publication
- If it can be and has been tested
- And whether the known or potential rate of error is acceptable.
Additionally, the court will consider whether the testimony developed out of pre-litigation research or if it was purely related to the litigation.
This has been very bad for plaintiffs. However, other state’s, such as Iowa, is more lenient on what kind of material is permissible at trial.
This case is about causation in scientific and medical cases. How do we establish causation in such complex cases? For instance, how can we prove that ingesting this drug caused the defect when countless others ingest without having the defect?
Epidemiological Proof
- Studies on human populations.
- This is taking an experimental group and comparing it to a control (think second hand smoking). If there is a difference between the experimental group and the control then there is a relative risk (RR). The higher the risk, the stronger the causal connection.
- However, there are problems to conducting these studies. First, there are ethical issues (can’t conduct experiments on humans that could be deemed harmful). Second, these studies are expensive (millions) with little incentive to conduct the study. These studies are conducted by people who are required by law to conduct these studies (i.e. pharmaceutical companies). Finally, these studies only provide general causation but does not answer specific causation. This means that we can determine that the there is a risk but we can’t determine if it was related to the event.
Animal studies
- These studies allow for greater control over the experiment.
- We can examine the tissue of the animal after they have died.
- Animals have a short life span so we can examine several generations
- However, there are other problems. First, there are ethical issues (animal cruelty). Second, there are variations of responses between interspecies. That is, something that affects a rat may not affect people the same way.
In Vitro (test tube)
- This is where we study cells and tissues.
- The problem with this is that fetal tissues are not fully developed and may react differently than fully developed humans.
Chemical structure activity analysis
- This means looking at the chemical structure of products that science has established as harmful. We can then compare this product to the chemical structure of the product we are studying. Using this information we can determine if the new product may be harmful.
- The issue here is that this is very technical and very small differences could have a huge impact.
Clinical differential diagnosis
- Medical analysis when people are already sick. This allows for doctors to eliminate the most likely causes and move down from most probable to least probable.
Hierarchy
- Epidemiological proof. Any negative evidence will result in the plaintiff losing.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
