What happened? (Zuchowicz 2x drug dose, then change back to single dies – of complications) What would have happened had acted with due care? Δ What was the untaken precaution? (Grimstad husband drowns before – wife gets rope) Would it have changed the outcome? RUN THE COUNTER FACTUAL Exposure to harmful substance (Gen Elec v. Joiner PCB) – Substance substance that is responsible for – Δ Source is the source – Δ Exposure was exposed and it caused the condition – Π Mechanism usually wrong (find a group exposed to high levels) – “signature” Admissibility of scientific evidence Frye only accepted” scientific data – “generally Daubert district court discerns when scientific evidence is adequate to – establish a causal chain Lost chance Herskovits v. Group Health Cooperative misdiagnosed lung cancer – Proportional below 50% (ex full if above 50% ante), Fennel 0/1 with discontinuity at 50% – Calculation: Joint Causation Multiple Sufficient Causes – Summers v. Tice Guy shot by one of two – Δ Fire Cases RTT §27 if multiple acts exist, each of which would have been a factual – cause under §26, each is regarded as the factual cause of the harm RST §433a Apportionment of harm to causes damages are apportioned – – when there is a reasonable basis for determining the contributions. No apportionment for other harms. Temporal distinction most courts will only hit the first cause – RAE hit the cause for rent according to the time delay before the – second Market share liability Sindell/DES Name most or all of tortfeasors as (substantially all manufacturers at the Δ time) Products must be identical and share the same defect (fungible) is unable to ID which through no fault of her own Δ apportionment unless a can show market share rata Δ Skipworth Lead is not a fungible good – PROXIMATE CAUSE Generally cause which, in natural and continuous sequence, produces injury without – which the injury would not have occurred Substantial Factor Test showing negligent conduct was a substantial factor in – Δ’s bringing about harm Π’s Run counter-factual and excuse if the outcome is the same Δ
What happened? (Zuchowicz – 2x drug dose, then change back to single dies of complications) What would have happened had Δ acted with due care? What was the untaken precaution? (Grimstad – husband drowns before wife gets rope) Would it have changed the outcome? RUN THE COUNTER FACTUAL Exposure to harmful substance (Gen Elec v. Joiner – PCB) Substance – substance that Δ is responsible for Source – Δ is the source Exposure – Π was exposed and it caused the condition Mechanism – usually “signature” wrong (find a group exposed to high levels) Admissibility of scientific evidence Frye – only “generally accepted” scientific data Daubert – district court discerns when scientific evidence is adequate to establish a causal chain Lost chance Herskovits v. Group Health Cooperative – misdiagnosed lung cancer Proportional below 50% (ex ante), full if above 50% Fennel – 0/1 with discontinuity at 50% Calculation: Joint Causation – Multiple Sufficient Causes Summers v. Tice – Guy shot by one of two Δ Fire Cases RTT §27 – if multiple acts exist, each of which would have been a factual cause under §26, each is regarded as the factual cause of the harm RST §433a – Apportionment of harm to causes – damages are apportioned when there is a reasonable basis for determining the contributions. No apportionment for other harms. Temporal distinction – most courts will only hit the first cause RAE – hit the cause for rent according to the time delay before the second Market share liability Sindell/DES Name most or all of tortfeasors as Δ (substantially all manufacturers at the time) Products must be identical and share the same defect (fungible) is unable to ID which Δ through no fault of her own rata apportionment unless a Δ can show market share Skipworth – Lead is not a fungible good PROXIMATE CAUSE Generally – cause which, in natural and continuous sequence, produces injury without which the injury would not have occurred Substantial Factor Test – showing Δ’s negligent conduct was a substantial factor in bringing about Π’s harm Run counter-factual and excuse Δ if the outcome is the same
Torts_Epstein_Fall_2011.docx