19&20: More Limited-Purpose Substitutes for the But-For Test
Wednesday, February 15, 2012
6:44 PM
Reading Notes:
TITLE, PAGE AND CITATION OF CASE:
Pennfield Corp v. Meadow Valley Electric, Inc.
PA, 1992
Page 127
Judge/Justice: Cavanaugh
FACTS: 1500 swine die from suffocation when a ventilator fails. Owner (Pennfield) sues
Meadow Valley for installing a defective electrical system. MVE joins suppliers claiming that
defective cable caused the failure, but does not identify which supplier caused the defective
cable.
PROCEDURAL HISTORY: Joinder dismissed with prejudice
ISSUE: Can MVE sue if it cannot determine which supplier provided the cable?
RULE: Where the conduct of two or more actors is tortious, and it is proved that the harm has
been caused to the plaintiff by only one of them, but there is uncertainty as to which one has
caused it, the burden is upon each actor to prove that he has not caused the harm. (Restatement
§433(b)(3))
HOLDING: Affirmed
REASONING:
 Requires that both (or all) actors be tortious. In this case, only one of the suppliers was a
tortious actor, but it is uncertain who. The other may not be tortious.
o Burden of proof remains on MVE
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Notes:
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Presumably, had both suppliers provided identically defective cables, the theory would
have been available to MVE
Dobbs wants to call it "alternative causation" rather than "alternative liability," because
only one of the actors caused the harm
Can be used against groups larger than two
Class Notes:
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Look for factors that make it likely that an exception will be applied
o Futile to find absolute rules when theory will be applied
As you get further from the established paradigm, the harder/less likely to apply
theory
Asbestos cases are messy because forces are not all operating simultaneously, with equal
likelihood of causing the injury
Supplier in MVE case says MVE hasn't even alleged that supplier has done something
tortious.
Summers v. Tice: both were tortious, one of them harmed him, and court argues that it's
more likely that the actors would know who caused the injury than the P
Different than a toxic waste case in which two different actors would both be
independently liable for polluting a water supply
Keep issues of causation and negligence separate: pleading that they both furnished the
defective cable doesn't mean they did
o Summers v. Tice: Plaintiff was able to establish both hunters were negligent
 No matter where you put the burden, you can't prove causation - only
negligence
o Here, we don't have enough evidence to shift the burden of proof to defendants
 Can't prove negligence
 Could if both provided identically defective cable (joint and severally liable)
o
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Reading Notes:
TITLE, PAGE AND CITATION OF CASE:
Poole v. Alpha Therapeutic Corporation
US District Court, IL, 1988
Page 131
Judge/Justice: Moran
FACTS: Plaintiff (decedent) suffered from hemophilia, which he treated with factor VIII from
various companies over his lifetime. Defendants produced the products he used, which they
obtained from blood donors. Because they failed to screen the blood, Plaintiff acquired HIV and
died of AIDS.
PROCEDURAL HISTORY: Plaintiff attempted to sue each defendant according to their relative
market share because he could not identify which company provided the tainted product.
ISSUE: Can the plaintiff use market share theory and force the burden of proof onto the
defendants to show they did not provide the tainted factor VIII?
RULE:
 Market Share Theory: If a plaintiff joins in the litigation the manufacturers of a
substaintial share of the defective product, the burden of proof shifts to the defendants to
demonstrate that they could not have supplied the product which caused the injury
 Concerted Action Theory: Plaintiffs must show that a tacit agreement existed among
defendants to perform a tortious act.
o Common design / plan
o Agreed to commit tortious acts
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Alternate Liability Theory: See above (Summers v. Tice)
HOLDING: Allow only the Alternate Liability Theory
REASONING:
 Market Share - refuse to adopt a new theory of tortious liability where the state has not
already done so (federal court)
 Concerted Action Theory - plaintiffs may have committed parallel or identical tortious
acts, but have not agreed to do so
 Alternate Liability Theory - Plaintiffs have successfully identified all of the possible
defendants, and courts have adopted the theory in those cases.
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Factor VIII (FVIII) is an essential blood clotting factor also known as anti-hemophilic factor
(AHF). In humans, Factor VIII is encoded by the F8 gene. Defects in this gene results
in hemophilia A, a well known recessive X-linked coagulation disorder.
Factor VIII participates in blood coagulation; it is a cofactor for factor IXa which, in the
presence of Ca+2 and phospholipids forms a complex that converts factor X to the activated
form Xa. The Factor VIII gene produces two alternatively spliced transcripts. Transcript variant
1 encodes a large glycoprotein, isoform a, which circulates in plasma and associates with von
Willebrand factor in a noncovalent complex. This protein undergoes multiple cleavage events.
Transcript variant 2 encodes a putative small protein, isoform b, which consists primarily of
the phospholipid binding domain of factor VIIIc. This binding domain is essential for coagulant
activity.
Patients with high levels of Factor VIII are at increased risk for deep venous
thrombosis and pulmonary embolism.
Notes:
Class Notes:
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Market Share liability - some, but not all, of the culprits must be found. But here, everyone
is present, so not an appropriate use of the theory. (Anderson thinks the court is wrong
that it precludes market share liability)
o Can use market share liability to divide damages
If a person contracts aids from just a single molecule, then only one person is liable alternative liability theory governs in this scenario
o On the other hand, if you don't contract AIDS until after significant exposure, then
combined forces case
Here, alternative liability is available to plaintiff, so no need to extend Illinois law for all
possible theories
Up to plaintiff to decide what theory is most appropriate, so no good reason why this
can't be both market share liability and alternative liability from a policy standpoint
Similar actions (parallel action) is not sufficient
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Seeking FDA approval together not enough, unless there's a cohesive business
model
Implicit v explicit agreement (Buchanan has explicit agreement)
Reading Notes:
TITLE, PAGE AND CITATION OF CASE:
Buchanan v. Vowell
COA Indiana, 2010
Page 134
Judge/Justice: Barteau
FACTS: Candice Vowell gets drunk at work. She and her mother drive home in separate cars
while talking to each other on their cell phones. She strikes a pedestrian (Jerry Buchanan, P) on
the way home, causing permanent brain damage. Both leave the scene of the crime.
PROCEDURAL HISTORY: Jerry alleges that the mother, Shannon, should have known that
Candice was impaired and should have known that talking to her on the cell phone would
impair her further. Trial court grants Shannon's motion for failure to state a claim for which
relief could be granted.
ISSUE: Did P fail to state a claim for which relief could be granted?
RULE: Plaintiff may show that D (Mother, Shannon) is liable for daughter's negligent acts if
Shannon is found to be acting in concert with Candice. Restatement Torts §876. A person will
be held liable if the joint tortious activity is the proximate cause of plaintiff's injuries.
HOLDING: Reversed and remanded
REASONING:
 They agreed to drive, and they agreed to talk on the phone. The two also fled the scene
together. Thus, Shannon encouraged the activity. It's possible a jury will find her liable.
 Shannon failed in her duty of reasonable care by distracting her daughter while she was
under the influence, even if she did not act in concert.
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Notes:
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Acting in concert by cooperation or participation makes both parties liable even if only
one could have committed the act
Mere knowledge is not enough - they must have intent or negligence
"Vicarious causal responsibility"
Class Notes:
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Shannon may be a but-for cause (Candice may not have run over a pedestrian had she not
been on the phone)
Concerted action theory: she encouraged Candice to drive home by discussing how to get
home after leaving the bar - they did not leave her car or take a cab, so they must have
agreed that Candice would drive.
Poole case - no agreement between the parties over tainted blood products
o Three independent businesses making the same product, but they aren't concerted
actors
What if there had been no discussion between Shannon and Candice? No concerted action
here, either. Each makes a decision independently, and without agreement
Drag race hypothetical: no explicit agreement, but two cars pull up to a stop light at the
same time. Both are held liable.
o The interaction itself constitutes the concerted action (one wouldn't race without
the other)
o Can't say that it is "parallel action" - wouldn't happen but-for the other party
Concerted actions here: Talking on phone, agreeing with Candice on way home
o Fleeing scene takes place after the accident happened. Confirms existence of
common plan? Maybe...
Injuries must occur after/during concerted action
o XCPN: injuries exacerbated after they flee the scene
 ** Kevin ** What's XCPN?
o The conversation agreement really is what nails them here
Court does not decide on the fact issue - only whether or not there is a fact issue as a
matter of law for which the P can claim relief
Reading Notes:
Limited-Purpose Substitutes for the Standard But-For Approach: The Lost Opportunity
Doctrine
TITLE, PAGE AND CITATION OF CASE:
Grant v. American National Red Cross
DC COA, 2000
Page 138
Judge/Justice: Farrell
FACTS: Calvin Grant undergoes blood transfusion during surgery and contracts hepatitis C.
Hospital and Red Cross screened the blood by standard procedure, which did not screen for
hep C (not yet positively identified at the time), but a surrogate ALT (alanine aminotransferase)
test existed. Red Cross decides ALT test failed cost-benefit analysis. All national suppliers
counseled against using it - high false positive and negative test rate and fails to detect vast
majority of cases.
PROCEDURAL HISTORY: Trial court rules P failed to present triable issues of fact on both
negligence and proximate causation; SJ for D.
ISSUE: Was the Red Cross negligent in not screening for ALT levels, depriving him of an
opportunity to avoid infection
RULE:
HOLDING: Affirmed
REASONING:
 P argues that "loss of chance" screening increased his likelihood of getting infected blood
by at least 30%
 Court only applies "loss of chance" theory in cases with a substantial possibility of a
different result (Fanc A patient with 70-90% chance of cure from bone marrow donor)
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
ALT: part of alanine biosynthesis, indicative of hepatic injury
 glutamate + pyruvate ⇌ α-ketoglutarate + alanine
Notes:
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Lost opportunity doctrine came from scientists' hesitation to provide causal relationships
with certainty, and instead provided probabilities that X caused Y.
Lost opportunity allows for calculation of damages using that percentage of probability (a
14% increase in likelihood of death = 14% of total damages)
Not in the restatement, rejected by a majority of jurisdictions, almost universally applied
to medical malpractice when it is accepted
Class Notes:
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P claims D's negligence was in depriving P of a 30% reduction in chance of contracting
Hep C. Therefore, no but-for case
o But-for the negligence, he would have had a better chance of avoiding it
If court decides that lost opportunity of survival has a 51% threshold, reduces the need
for hospitals to incentivize reasonable care
Reading Notes:
Apportioning damages according to causation
 Causation is all or nothing
 However, since people should only be liable for the consequences of their own actions,
damages should be apportioned only based on causation
 Sometimes it is impossible to sort out which injuries stemmed from which causes
 What happens when the defendant's tortious conduct was a cause in fact of some
significant part, but probably not all, of an inextricable tangle of injuries?
TITLE, PAGE AND CITATION OF CASE:
Holtz v. Holder
SC of AZ, 1966
Page 143
Judge/Justice: Udall
FACTS: Holtz and Holder are involved in a car accident. After the accident, another truck
owned by Carnation Company hits P. P is injured, but it was medically impossible to determine
which accident caused which injuries.
PROCEDURAL HISTORY: Jury instructed that each D was not liable as a matter of law for the
injuries caused by the other D, and only if it could be established that the injury was caused by
that D.
ISSUE: Should the jury have been instructed to apportion the damages according to the D's
relative negligence and relative liability for the injuries? Can two or more tortfeasors be held to
a joint and several liability for the entire damages or injuries suffered by the plaintiff because
the injuries are caused by separate acts of negligence, or should the negligent actors escape
liability altogether on an application of the general rule that an independent tortfeasor is liable
only for the harm caused by his act and the plaintiff must carry the burden of proving the
extent of damage or injury caused by each tortfeasor?
RULE: Single indivisible injury rule: it is more desirable, as a matter of policy, for an injured
and innocent plaintiff to recover damages in their entirety even if one of the tortfeasors ends up
paying more than his just share than it is to let both escape liability altogether.
HOLDING: Reversed and remanded
REASONING:
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Notes:
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Protects plaintiff from "uncollectability" - each tortfeasor contributes their share
Can allow for collection of all damages from one of the two tortfeasors in a car accident if
the second is uninsured
Policy is limited by the amount of time that lapses between the two accidents (10 minutes
OK, days are not)
Class Notes:
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Who was the but-for cause?
Trial court: Plaintiff was unable to show that Holder was but-for cause of injuries
o Defendants are only liable for the harms for which the are the but-for cause
Appeals court: trial court's mistake was thinking that P had to show but-for causation for each
injury individually
o Sounds a lot like the combined forces cases, where proof of but-for causation is not
required
o Each collision contributes to produce more harm combined than either would produce
by itself, so combined forces is not available
Single injury rule: multiple collision, indivisible injury
o Doctor's testimony that it was impossible to say which car accident caused the injury,
testimony only showed that injuries were indivisible (necessary)
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Necessary to occur in rapid sequence because there is no time to go to doctor in between the
two accidents
Risk to plaintiff - unless judge buys the indivisible injury rule, you just proved there is no way
to prove which injury was caused by which plaintiff
o Here, injuries caused by combination of negligent acts
Anderson thinks these rules could be reduced to a couple of principles rather than
different theories of causation
o Necessary to understand why they differ from each other
Combined forces, market share and alternative liability: applicable in cases in which we
know one defendant is not a but-for cause
o We impose liability even if we know they were not but-for cause
o Substitutes (or exceptions to but-for causation)
Combined forces - either of the plaintiffs would have caused harm without the other
(joint and several)
Alternative - one, and only one, is a but-for cause (joint and several)
Market Share - alternative liability with variations
o Divides up damages (severally only, based on market share
o Makes it possible to apportion damages even if not all actors are there
Concerted action is a different way of showing but-for causation, not a substitute
o The person participating in drag race is a "but-for" cause because the race would
not have taken place without him and his agreement
Lost opportunity is not a substitute for but-for
o Redefines what the D was but-for cause of
o Court holds defendant liable not for whole injury, but only for loss of chance that D
is responsible for
o Need to show but-for causation for lost opportunity