Proximate causation
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
But how far does‘proximate’ causation go?
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.
Palsgraf v. Long Island R. R.
NY train station - 1927
Mrs. Palsgraf
L.I. R.R. employee
NY train station - 1927
NY train station - 1927
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
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.
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. Le
276 Va. 161, 662 S.E.2d 73 (2008))
Expert Testimony
Junk Science
OR
Legitimate Expert
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
Role of Judge
“Gatekeeper to prevent admission of ‘junk science’”
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
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
Gatekeeper Function Issue 1
 Is this person an “expert”
 Liberal standard
 Not
expert simply by selfanointing; 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
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 selfprofession. 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??
Gatekeeper Function Issue 2
 Reliability
 Factors to be considered:
Whether technique can be and
has been tested (but testing not
prerequisite to admissibility).
2. whether technique has been
subject to peer review and
publication
3. the existence and maintenance of
standards controlling the
operation of the technique
1.
Gatekeeper Function Issue 2
 Reliability
 Factors to be considered:
Frequency and type of error
generated by the technique
5. whether such evidence has been
received in previous cases to
support or dispute merits of
particular scientific procedure
6. Consideration of the “totality of
the circumstances”
4.
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))
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)
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.
Gatekeeper Function Issue 4
 Unfair prejudice
 Weigh probative value of
evidence against risk of
unfair prejudice to party
against whom offered
 Brachial plexus injury after vaginal
Example:
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))
 Std for admissibility ≠ which
Example:




causation theory more likely.
Opinion supported by peerreviewed literature & data
Expert opinion may properly be
derived from scientific “process of
elimination”
testing (or data showing ‘test-ability’ of expert’s theory) not
required
Prospective analysis of data not
required; retrospective analysis
suffices
Example:
Analysis:
1. testimony re intrauterine causes of
brachial plexus injuries was helpful
to the jury because it was not clear
how BP injury happened
2. 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
Example:
Analysis:
3. Although contested, there is
reliable medical literature that
there can be intrauterine causes of
BP injuries that occur without the
negligence of the physician
4. Expert’s theories were based on
reliable scientific principles, which
can come out of his personal
experience in the area
5. The probative value of such
evidence outweighs any risk of
prejudice.
(Luster v. Brinkman, 205 P.3d 410 (Colo.App.2008))
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.
Bottom line – jury’s function
Assuming proposed expert
testimony rises above the
level of bare speculation,
conjecture or pseudoscience 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
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)
Bottom line – attorneys’ role
There is liberal standard of
admissibility which is
intended to be balanced by
“vigorous crossexamination, presentation
of contrary evidence, and
careful instruction on the
burden of proof.” (Shreck v.
People, 22 P.3d 68, 78 (Colo.2001))
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
“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 bestselling 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)).