"Risk Analysis in the Courts: A Roadmap for Risk Analysts"
Menu of 1998 Full-text Online Casebook
(Posters 3, 4)
ELEMENTS OF A CIVIL LAWSUIT
Anatomy of a Civil Case
BASIC ELEMENTS OF LIABILITY
For most personal injury (tort) cases, the plaintiff must prove each one of the following elements:
Wrongful Activity by the Defendant. Wrongful in this context does not mean bad or malicious. It includes defective products or liability for ultra-hazardous activities. (Go to Poster No. 5)
Causation. Did the wrongful activity of the defendant cause the plaintiff’s injury? (Go to Poster Nos. 6-8)
Harm. Did the plaintiff suffer one of the kinds of harm that the law recognizes as compensable? (Go to Poster Nos. 10-11)
LAW AND FACT, JUDGE AND JURY
Lawyers typically divide the issues to be resolved into questions of law and of fact. Questions of law are always resolved by a judge C the trial judge in the first in-stance, and later (and more authoritatively) by an appellate court. Determining what the facts are and how the rules of law apply to them is the province of the jury. For example, the legal rule of negligence means that a defendant may not impose unreasonable risks on a plaintiff. The judge explains this rule to the jury, and the jury then determines what precisely the defendant did (running a stop sign or failing to warn of the adverse effects of a drug) and whether that constitutes Aunreason-able@ behavior. In cases where there is no jury, the trial judge determines the law, finds facts, and applies the law to the facts.
ORDER OF TRIAL
The steps in a typical trial:
Complaint
\
Answer
\
Discovery
\
Motion to Dismiss or for
Summary Judgment
\
Verdict/Judgment
\
Motion for Judgment
notwithstanding
\
Verdict or for a New Trial
\
Appeal
Who uses the risk assessment evidence once it has been admitted, and when?
Judge: Dismissal/directed Verdict/j.n.o.v./new Trial
The plaintiff has failed to state a claim upon which relief can be granted; no jury could reasonably find in the non-moving party’s favor.
Judge: Summary Judgment
No triable question of fact remains in the case; the judge can resolve disputed issues as a matter of law.
Fact Finder: Judge or Jury
GENERAL STANDARD OF PROOF
Preponderance = more probably than not
This is sometimes expressed as 51% probability, but the test is not quantitative, and many questions of proof (for example, credibility) do not lend themselves to quantitative analysis.
In rare cases, a more stringent standard of proof clear and convincing evidence will apply. The criminal standard beyond a reasonable doubt is more demanding still.
The burden of meeting this standard of proof typically rests with the plaintiff. That is, it is the plaintiff’s job to persuade the fact-finder of the correctness of his or her position. Conversely, if the fact-finder is left in doubt, then the defendant (the party who does not have the burden of proof) prevails.
How do the legal standards of proof compare to scientific standards of proof?
Hodges v. Secretary of the Department of Health and Human Services, 9 F.3d 958 (Fed.Cir. 1993).
Must a plaintiff resorting to scientific proof of causation under a legal standard that it is more probably true than not true that a toxic exposure caused a disease meet a stringent scientific standard such as 95-percent certainty? Judge Newman, dissenting in Hodges v. Secretary of DHSS, focused on the distinction between legal probability and scientific certainty. The judge examined the legal consequences of probabilistic analysis and concluded that a causation relationship could be ascertained even from data possessing low confidence levels that may not attain statistical significance. Data bearing lower than 95% confidence might not support a conclusion about causation to a medical certainty, but could satisfy the more-likely-than-not legal standard used in civil litigation. In Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), the court recognized the Airrelevance@ of scientific certainty to Amore likely than not@ causation. In Rubanick v. Witco Chemical Corp., 593 A.2d 733, 747 (N.J. 1991), the New Jersey Supreme Court rejected requiring a level of scientific proof that was unavailable, and stated that:
[T]oxic tort litigation does not frequently encounter well established and widely accepted scientific theories of causation that can, at the level demanded by the scientific method, precisely delineate the causal path between the toxin and pathology.
The Childhood Vaccine Injury Act, the federal statute under which the plaintiffs brought their claim, requires that causation be proved by a preponderance of the evidence. This case was decided against the petitioner by a divided panel of the Federal Circuit. Judge Newman stated unequivocally that the burden of proof required by the Vaccine Injury Act, as well as general tort liability law, is not the 95% confidence level expected by scientists; instead, it is the greater-than-50% confidence level set by Congress. The special master who decided the case had discounted the petitioner’s medical evidenceC14 epidemiological studies that support general causation, or that the vaccine in question is capable of causing death in a child. Judge Newman’s dissenting opinion relied upon Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), as a basis to admit additional types of evidence. The U.S. Supreme Court stressed the obligation of the court to review the scientific reasoning and methodology of the epidemiological evidence, to evaluate the reliability of scientific expert opinions, and to weigh the totality of the evidence as applied to a particular case. Yet the proffered epidemiological evidence was not evaluated by the special master although it was the foundation for a plaintiff’s expert’s opinion. Expert opinion on specific, individual causation was inferred from the evidence on general causation together with clinical observations and a strong temporal association; the child’s death ensued less than four hours after vaccination.
The dissenting opinion in this case is preferred over majority rulings in other recent cases that distinguish between legal and scientific standards of certainty, such as Ferebee and Rubanick. Judge Newman’s arguments are more comprehensive and they place toxic risk assessment used in civil cases under a substantially reduced level of scientific certainty as compared to that expected in the scientific community or used in criminal prosecutions. [Roth-Nelson]
EVIDENCE
Proof in a civil trial is rigidly controlled to assure to the extent possible the reliability and pertinence of the evidence that is considered by the jury. The use of evidence is governed by rules of evidence, which are often (though not always) codified. In federal courts, the Federal Rules of Evidence apply, and many states have adopted the Federal Rules of Evidence (with some modifications) for use in state courts.
The evaluation of evidence for use in a civil trial involves two questions:
Is the Evidence Admissible?
This is the initial (or threshold) question whether the evidence may be considered at all. The judge makes this determination, often giving reasons, and the judge’s rulings on evidence are subject to appellate review.
How Much Weight Should Be Accorded the Evidence?
This question is the basis for the ultimate resolution of the case C whether the plaintiff has met the burden of proof. The jury makes this determination, usually implicitly by finding for one party or another.
Copyright © 2000.
John Applegate and Wendy Wagner.
Last modified September 27, 2000