What s the Chance? Causation Issues in Tort Law

What s the Chance? Causation Issues in Tort Law Prof. Michael D. Green, Wake Forest Law School Profs. John Church and Bill Corbett, LSU Law Center I. THE BASIC STANDARDS A. But-for Causation The basic standard of causation in tort law is but-for causation. The usual formulation or statement of that standard, with the burden of persuasion is, It is more probable than not that but for the breach the harm would not have occurred. 1. National: THE RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM 26 states the standard as follows: Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under 27. 2. Louisiana courts often refer to the standard of causation as substantial factor, but define this as but-for causation: For example, the Louisiana Supreme Court stated as follows in Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1089 (La. 2009): In Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962), we stated that conduct is a Page 1 of 10

cause-in-fact of harm to another if it was a substantial factor in bringing about that harm. Id. at 302. Elaborating on that pronouncement of law, we stated negligent conduct is a substantial factor if the harm would not have occurred without the conduct, i.e., but for defendant's conduct, plaintiff would not have sustained injury. Thereby, we equated the two concepts of substantial factor and necessary antecedent. Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970). Cause-in-fact is usually a but for inquiry which tests whether the injury would not have occurred but for the defendant's substandard conduct.... The cause-infact issue is usually a jury question unless reasonable minds could not differ. Cay v. State, 631 So. 2d 393, 395-96 (La. 1994). A good way to understand this inquiry is imagine rewinding a DVD to the time of the defendant s negligent act, removing that act from the DVD and then replaying it. If the plaintiff does not suffer the harm in the hypothetical replaying, the negligence was a cause in fact-ofthe harm. David W. Robertson, The Common Sense of Cause in Fact, 75 Tex. L. Rev. 1765, 1770-71 (1997). B. Other, Lower Standards of Causation 1. National: THE RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM 27: If multiple acts occur, each of which under 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm. a. Multiple sufficient causes generally. This Section applies whenever there are two or more competing causes, each of which is sufficient without the other to cause the harm and each of which is in operation at the time the plaintiff's harm occurs. When an actor's tortious conduct is such a cause, it nevertheless would not be a factual cause if factual causes were limited to the definition in 26: even without that tortious conduct, the harm would still have occurred because of the Page 2 of 10

competing cause. Nevertheless, courts have long imposed liability when a tortfeasor's conduct, while not necessary for the outcome, would have been a factual cause if the other competing cause had not been operating. 2. Louisiana: Louisiana courts sometimes seem to be applying a causation standard lower than but-for: This case appears to be a close one on the issue of cause-in-fact. It is likely that this accident might have occurred had Benoit, who already owned a weapon, never been commissioned. Thus, it is impossible to say with any degree of certainty, but for the sheriff's conduct, this accident would not have happened. Nonetheless, inasmuch as the sheriff's actions can be said to have appreciably enhanced the chance of the accident occurring, they are a cause-in-fact of the accident. Roberts v. Benoit, 605 So. 2d 1032, 1052 (La. 1992) (on reh g). Note, by analogy to causation in toxic torts, if the sheriff s conduct slightly more than doubled the risk of harm, it would satisfy the preponderance standard of proof. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM 28 cmt. C(4). II. SHIFTING BURDEN: BURDEN SHIFTS TO DEFENDANTS TO DISPROVE CAUSATION A. National: started with Summers v. Tice, 199 P. 2d 1 (Calif. 1948) (two hunters shooting in direction of third hunter and third was hit in eye and lip by shotgun pellets). THE RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM 28: (a) Subject to Subsection (b), the plaintiff has the burden to prove that the defendant's tortious conduct was a factual cause of the plaintiff's harm. Page 3 of 10

(b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff's harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants. B. Louisiana applies a shifting burden on causation to legal malpractice cases: Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109 (La. 1982). III. LOST CHANCE A. National: 1. Acceptance: Started with Herskovitz v. Group Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983) and Prof. Joseph H. King, Jr. s article, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L. J. 1353 (1981). RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM 26 Comment n: n. Lost opportunity or lost chance as harm. A number of courts have recognized a lost opportunity (or lost chance) for cure of a medical condition as a legally cognizable harm. This new characterization of harm permits recovery when adherence to traditional categories of legally cognizable harm and rules of proof of causation would not. Under the preponderance-of-the-evidence standard, plaintiffs fail in their burden of proving factual causation if they do not introduce evidence that proper care more likely than not would have cured or otherwise improved their medical condition. Thus, courts traditionally have required that a plaintiff show that the probability of a better outcome was in excess of 50 percent. Plaintiffs who do provide such proof, of course, recover the entirety of their damages. Page 4 of 10

Concomitant with this reconceptualization of the harm for a plaintiff unable to show a probability in excess of 50 percent is an adjustment of the damages to which the plaintiff is entitled. Rather than full damages for the adverse outcome, the plaintiff is only compensated for the lost opportunity. The lost opportunity may be thought of as the adverse outcome discounted by the difference between the ex ante probability of the outcome in light of the defendant's negligence and the probability of the outcome absent the defendant's negligence. These decisions are a response to inadequate (and unavailable) information about what would have been the course of a specific patient's medical condition if negligence, typically in failing to diagnose, refer, or otherwise provide proper treatment, had not occurred. Lost chance thus serves to ameliorate what would otherwise be insurmountable problems of proof, i.e., proving what would have happened to the plaintiff or plaintiff's decedent if proper medical care had been provided. Among courts that are inclined to modify the law in this area in response to the difficulties of proof, recognizing lost opportunity as harm is preferable to employing a diluted substantialfactor or other factual-causation test, thereby leaving recovery to the unconstrained inclination of any given jury and providing some fortunate plaintiffs with a full measure of damages for their physical harm while denying any recovery to others. For courts adopting lost opportunity, however, Restatement Second, Torts, 323 does not supply support for such a reform, for the reasons explained in the Reporters' Note to this Comment. The lost-opportunity development has been halting, as courts have sought to find appropriate limits for this reconceptualization of legally cognizable harm. Without limits, this reform is of potentially enormous scope, implicating a large swath of tortious conduct in which there is uncertainty about factual cause, including failures to warn, to provide rescue or safety equipment, and otherwise to take precautions to protect a person from a risk of harm that exists. To date, the courts that have accepted lost opportunity as cognizable harm have almost universally limited its recognition to medical- Page 5 of 10

malpractice cases. Three features of that context are significant: (1) a contractual relationship exists between patient and physician (or physician's employer), in which the raison d'être of the contract is that the physician will take every reasonable measure to obtain an optimal outcome for the patient; (2) reasonably good empirical evidence is often available about the general statistical probability of the lost opportunity; and (3) frequently the consequences of the physician's negligence will deprive the patient of a less-than-50-percent chance for recovery. Whether there are appropriate areas beyond the medicalmalpractice area to which lost opportunity might appropriately be extended is a matter that the Institute leaves to future development. Recognizing a lost opportunity for cure is not strictly a matter of factual causation; rather, it reconceptualizes the harm. Once the harm is reconceptualized as the lost opportunity, the factual-cause inquiry changes. See Comment f. Both because the lost-opportunity doctrine is one involving the definition of legally cognizable harm and because it has been confined to medical malpractice, a specialized area of negligence liability outside the scope of this Restatement, the Institute takes no position on this matter, leaving it for future development and future Restatements. 2. Rejection: Reasons to reject lost chance theory were articulated by the Texas Supreme Court in Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 405-06 (Tex. 1993): Unless courts are going to compensate patients who beat the odds and make full recovery, the lost chance cannot be proven unless and until the ultimate harm occurs.... Hence, legal responsibility under the loss of chance doctrine is in reality assigned based on the mere possibility that a tortfeasor's negligence was a cause of the ultimate harm.... That damages for loss of chance may be reduced to some degree is ultimately beside the point. * * * * Page 6 of 10

Furthermore, assuming we adopt the loss of chance doctrine in the context of this medical malpractice action, it is doubtful that there is any principled way we could prevent its application to similar actions involving other professions. If, for example, a disgruntled or unsuccessful litigant loses a case that he or she had a less than 50 percent chance of winning, but is able to adduce expert testimony that his or her lawyer negligently reduced this chance by some degree, the litigant would be able to pursue a cause of action for malpractice under the loss of chance doctrine.... We see nothing unique about the healing arts which should make its practitioners more responsible for possible but not probable consequences than any other negligent actor. B. Louisiana: 1. Recognized in Hastings v. Baton Rouge Gen. Hosp., 498 So. 2d 713 (La. 1986). 2. Method of valuation: fact finder determines value of lost chance without multiplication of percentage chance by wrongful death damages. Smith v. State, Dep t of Health & Hosps., 676 So. 2d 543 (La. 1996). The Court in Smith rejected the idea that it was changing the standard of causation: Allowing recovery for the loss of a chance of survival is not, as the court of appeal suggested, a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the defendant's negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that distinct loss. Smith, 676 So. 2d at 547. The Court s explanation would mean that a plaintiff who lost a chance of survival, but ultimately survived could recover for the lost chance. Louisiana has such a case: Claudet v. Weyrich, 662 So. 2d 131 (La. App. 4 th Cir. 1995). Page 7 of 10

3. Lost chance of a better outcome: Hargroder v. Unkel, 888 So. 2d 953 (La. App. 2d Cir. 2004) (lost chance of better recovery from a stroke), writ denied, 893 So.2d 874 (La. 2005); Graham v. Willis-Knighton Med. Ctr., 699 So. 2d 365 (La. Cir. 1997) (lost chance of saving a limb); Bianchi v. Kufoy, 53 So. 3d 530 (La. App. 3d. Cir. 2010) (post-surgical care of patient took away or diminished patient's chance for a better recovery from his surgery). IV. CAUSATION IN INTERSECTING THEORIES OF RECOVERY The issue is illustrated by Libersat v. J&K Trucking, Inc., 772 So. 2d 173 (La. App. 3d Cir. 2000), writ denied, 789 So. 2d 598 (La. 2001). Plaintiff asserted that truck driver was negligent in executing turn and hitting plaintiff. Evidence established that driver was not negligent. Plaintiff argued for jury to be instructed on negligent hiring because trucking company had hired driver with bad driving record. The court stated as follows: After a review of the record, this Court finds that the trial court's instructions regarding Patterson's possible liability are an accurate reflection of the law. Patterson, as Mr. Mitchell's employer, would be liable for his actions under the theory of respondeat superior. If Mr. Mitchell breached a duty to the Appellants, then Patterson is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.... The court did not err in using its discretion to omit Appellants' requested jury instructions regarding negligent hiring and training because they were not appropriate in this case. Libersat, 772 So. 2d at 179. V. PROBLEM (for discussion) Imagine that a drug manufacturer fails to warn of the risks of diabetes that its drug poses. The drug increases the risk of contracting diabetes by 25%. Page 8 of 10

Part 1: A patient who has taken the drug, but has not yet been diagnosed with diabetes, sues the drug manufacturer for failure to warn. Part 2: A patient who has taken the drug and contracted diabetes sues the drug manufacturer for failure to warn. The probability that the drug caused plaintiff s diabetes is 20%, i.e., 25 (those with diabetes due to the drug) / 125 (total population with diabetes). Part 3: Suppose that the probability in Part 2 is 60% rather than 20%? Should there be liability in any of the three parts? If so, for how much? A. National: 1. Rejection of recovery for increased risk: Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997) (decision based on Federal Employers Liability Act); DeStories v. City of Phoenix, 744 P.2d 705 (Ariz. Ct. App. 1987) (asbestos-exposed workers without disease could not recover); Capital Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky. 1994). But cf. Mauro v. Raymark Industries, Inc., 561 A.2d 257 (N.J. 1989) (holding that plaintiff could recover for increased risk of future disease but only when there was sufficient proof that the disease was more likely than not to occur). 2. The conflict between the academics and the courts. Academics championing proportional liability, especially when the probability is 50% or less. Compare, e.g., David Rosenberg, The Causal Connection in Mass Exposure Cases: A Public Law Vision of the Tort System, 97 HARV. L. REV. 849 (1984) with, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1315 n.16 (11th Cir. 1999) (breast-implant case; relative risk of 2.0 is the threshold for an inference of specific causation; relative risk of 1.24 is insufficient); Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1320 (9th Cir. 1995) (applying California law) (requiring that plaintiff demonstrate a relative risk of 2.0); In re Breast Implant Litig., 11 F. Supp. 2d 1217 (D. Colo. 1998) (plaintiff must demonstrate more than a doubling of risk of disease by defendant s agent); Pick v. Am. Med. Sys., Inc., 958 F. Supp. 1151, 1160 (E.D. La. 1997) (stating that a relative risk of 2.0 implies a 50% probability of specific causation, but acknowledging that a study with a lower relative risk is admissible, if not sufficient to support a verdict on causation); Sanderson v. Int l Flavors & Fragrances, Inc., 950 F. Supp. 981, 1000 (C.D. Cal. 1996) (relative risk of 2.0 is a threshold for plaintiff to Page 9 of 10

prove specific causation); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1403 (D. Or. 1996) ( plaintiffs must be able to show a relative risk of greater than 2.0 ). Page 10 of 10