Proximate causation

1. Proximate causation

2. Proximate causation • Cause in fact • A reasonable connection between the Δ’s negligence and the π’s injuries/ damages • “But for” causation – Δ’s conduct must be “a” cause of π’s damages, although not the only or last or nearest cause

3. But how far does‘proximate’ causation go?

4. What if Δ’s conduct poses risk of harm to “A,” but it is “B” who is injured; “B” was not threatened by Δ‘s conduct; and Δ could not have foreseen or anticipated injury to person in “B’s” situation.

5. Palsgraf v. Long Island R. R.

6. NY train station - 1927Mrs. Palsgraf L.I. R.R. employee

7. NY train station - 1927

8. NY train station - 1927

9. Proof of proximate causation • Evidence of reasonable connection, or ‘but for’ relationship, between negligent conduct and injury requirement by expert testimony • Need for expert testimony • “Value of a chance” cases

10. Intervening causation • Conduct is not cause of another’s injuries if, in order to cause such injuries, it was necessary that conduct combine or join with an intervening cause which also contributed to cause the injuries. • Intervening cause = one which would not have been reasonably foreseen by reasonably careful person under same or similar circumstances.

11. Intervening causation • Radiologist • Assume emails or faxes report to PCP – but doesn’t personally speak to PCP • Assume PCP fails to check email or fax – catastrophic injury/death • Does PCP’s conduct exonerate radiologist? (Williams v. Le276 Va. 161, 662 S.E.2d 73 (2008))

12. Expert Testimony Junk Science OR Legitimate Expert

13. Daubert v. Merrell Dow • US Supreme Court decision in 1993 • National litigation against manufacturer of Bendectin • Claim that Bendectin (Rx’d for treating pregnancy-related N&V) was teratogenic (caused birth defects) • Articulated standards for evaluating admissibility of scientific and expert testimony • Applicable in all federal courts; generally accepted throughout U.S. – some states (e.g. Colorado) apply slightly different standard • Intent: to loosen standards and allow admission of legitimate conflicting opinions for jury’s consideration

14. Role of Judge “Gatekeeper to prevent admission of ‘junk science’”

15. Gatekeeper Function - Generally • Not intended to exclude new or novel science, or evidence based on new testing, techniques or theories – even if not ‘generally accepted’ • Not intended to turn judges into jurors or pseudo-scientists • Court not to weigh or choose between conflicting scientific opinions or reach its own opinion • Court not to be concerned with the reliability of the conclusions … provided generated by valid methods, principles, and reasoning

16. Gatekeeper Function - Generally • Rather….intended to prevent jury from considering speculation or ipse dixit dressed in the garb of scientific opinion • Screening to keep unreliable “junk” science out of the courtroom • Preliminary screening to assure “reliability” of methodology or technique which underlies opinion

17. Gatekeeper Function Issue 1 • Is this person an “expert” • Liberal standard • Not expert simply by self-anointing; must show that by reason of knowledge and/or skill and/or experience and/or training and/or education, this person have the requisite expertise to offer opinion she/he is offering

18. Gatekeeper Function Issue 2 • Reliability • The touchstone of reliability is “whether the reasoning or methodology underlying the testimony is scientifically valid” • Not expert simply by self-profession. Must show by reason of knowledge and/or skill and/or experience and/or training and/or education, does this person have the requisite expertise to offer opinion she/he is offering??

19. Gatekeeper Function Issue 2 • Reliability • Factors to be considered: • Whether technique can be and has been tested (but testing not prerequisite to admissibility). • whether technique has been subject to peer review and publication • the existence and maintenance of standards controlling the operation of the technique

20. Gatekeeper Function Issue 2 • Reliability • Factors to be considered: • Frequency and type of error generated by the technique • whether such evidence has been received in previous cases to support or dispute merits of particular scientific procedure • Consideration of the “totality of the circumstances”

21. Gatekeeper Function Issue 2 • Reliability • For example: Testimony by expert phrenologist about predictions of future behavior based on skull shape (General Elect. Corp. v. Joiner, 522 U.S. 136, 154 n.6 (1997))

22. Gatekeeper Function Issue 2 • Reliability • For example: • Testimony about Def’s future dangerousness by expert hired by prosecution who observed at trial, considered facts of offense and Def’s conduct at trial (Def did not testify) (Flores v. Johnson, 210 F.3d 456, 458 (5th Cir.2000)(Garza, C.J., concurring)

23. Gatekeeper Function Issue 3 Relevance • “Does it Fit?” • Expert testimony “fits” the subject matter if it assists the jury in understanding the evidence or to determine a fact in dispute • Is there a valid connection to the pertinent inquiry? • The proposed testimony must speak clearly and directly to an issue in dispute in the case.

24. Gatekeeper Function Issue 4 • Unfair prejudice • Weigh probative value of evidence against risk of unfair prejudice to party against whom offered

25. Example: • Brachial plexus injury after vaginal delivery complicated by shoulder dystocia • Expert testimony by OB’s that maternal propulsive forces caused BP injury -- not excess traction on fetal head; that BP injury occurred before OB’s delivery maneuvers • Trial court excluded expert testimony b/c intrauterine ctx theory not testable or quantifiable • Reversed (Estate of Eicher v. Ford, __P.3d__, 2008 WL 5173615 (Colo.App.2008))

26. Example: • Std for admissibility ≠ which causation theory more likely. • Opinion supported by peer-reviewed literature & data • Expert opinion may properly be derived from scientific “process of elimination” • testing (or data showing ‘test-a-bility’ of expert’s theory) not required • Prospective analysis of data not required; retrospective analysis suffices

27. Example: Analysis: • testimony re intrauterine causes of brachial plexus injuries was helpful to the jury because it was not clear how BP injury happened • expert testimony assisted the jury because it offered contrary medical opinions from which the jury could choose the theory it found more convincing-that BP injuries can only occur from traction, or alternatively, that BP injuries can be caused by an intrauterine injury

28. Example: Analysis: • Although contested, there is reliable medical literature that there can be intrauterine causes of BP injuries that occur without the negligence of the physician • Expert’s theories were based on reliable scientific principles, which can come out of his personal experience in the area • The probative value of such evidence outweighs any risk of prejudice. (Luster v. Brinkman, 205 P.3d 410 (Colo.App.2008))

29. Bottom line – Judge’s function Nothing requires court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” General Electric v. Joiner, 522 U.S. 136, 142 (1997) Ultimately, the trial court is granted leeway when it determines how to evaluate expert testimony before trial.

30. Bottom line – jury’s function Assuming proposed expert testimony rises above the level of bare speculation, conjecture or pseudo-science which is unsupported by any data or literature, it is likely to be admitted, and it is the jury’s job to sort out competing or contradictory expert opinions

31. Bottom line – jury’s function Where competing evidentiary theories exist, it should be jury’s function to consider what weight should be given to all parts of the evidence, including resolving conflicts, inconsistencies, and disputes in the evidence. (Ford, supra)

32. Bottom line – attorneys’ role There is liberal standard of admissibility which is intended to be balanced by “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” (Shreck v. People, 22 P.3d 68, 78 (Colo.2001))

33. Level of “certainty” or “probability” required for expert opinions “When one admits that nothing is certain one must, I think, also add that some things are more nearly certain than others.” Bertrand Russell

34. “Reasonable Medical Probability”“Reasonable Medical Certainty” -Most states and federal court require that expert testimony be based on “reasonable medical probability” or “reasonable medical certainty” ■ “Medical expert testimony regarding causation based upon possibility or speculation is insufficient; it must be stated as being at least ‘probable,’ in other words, more likely than not.” (Scott v. Kahn, 2009 WL 3298160 (Neb.App.2009)). ■ The phrase originated in Chicago sometime between 1915 and 1930 and spread throughout other states due to adoption of models included in a best-selling manual on trial technique. … [N]o consensus exists as to its meaning . . . and most courts have rejected any mandatory formulaic expressions of medical certainty or probability as a prerequisite to the admissibility of expert medical testimony. (People v. Ramirez, 153 P.3d 371, 376 n.6 (Colo.2007)). -Colorado: “Reasonable medical probability” or “reasonable medical certainty” is not prerequisite for admission of expert testimony. Even if testimony is expressed with less than certainty, such as, “I think” or “It is possible,” or “consistent with,” it is admissible. (People v. Ramirez, 153 P.3d 371 (Colo.2007)).