Going To Law School

Yeah, that's kind of what I'm saying. Obviously the court found him liable. But there seems to be a huge cause-in-fact problem, not to mention proximate cause. Courts do shit wrong all the time.

as in, "the doctor's negligence did not proximately cause the murder because the predictions of murder are normally incorrect, and thus there's no real foreseeability to a patient comitting a murder who says they're going to do so." foreseeability being a component of the whole scope-of-the-risk test for legal cause. right???

Our torts professor said this result is huuuuuuuuuuuugely controversial, and now I'm seeing why.

Yeah, that's certainly one way you could argue it.

though if they got to causation, would they be assuming in their argument that "even if the doctor had the duty ..., causation isn't even met"

You might even be able to argue it on standard-of-care/risk-balancing analysis, i.e. "Expecting a psychotherapist to warn about every patient threat places a very high burden on the profession (particularly since it damages doctor-patient trust), and the probability of harm is very low since most patient statements about intent to do harm are never acted upon."

xpost, yeah I think it's always good to do the "even if" thing on an exam -- cover all bases.

Oh, like running it through a Hand Formula type thing? burden high, risk low though potential damages being huuuuuge.

yes exactly

what I'm annoyed about is, our last class was Friday ... and we had a shitload of new reading for Friday. and our exam is Wednesday! I've been studying since Saturday.

as in, this Wednesday. 4 free days to study. for a year's worth of torts. closed book.

yeah, my torts is closed book too. Honestly I'd rather take that one first. Feel much more ready for that.

Oh well, tomorrow I'm going to do the two practice exams we have for this guy and bone up on all this shit. I don't even hear my classmates debate duty, causation, etc., so hopefully a lot of them missed the fact that you have to establish these things before you can argue all the fun stuff.

Unless they have hornbooks or commercial guides that give them the inside info on this shit... I see everyone with those.

Does your prof do straight issue spotters?

Yeah, the exam is 2 big issue spotting questions. I already worked through a chunk or two, but not as a whole

It's funny how professors get hung up on certain things -- mine spent an inordinate amount of time on Ranson v. Kittner, Informed Consent and Reasonable Alternative Design.

I have no idea what that is

We spent most of our time on negligence in general (what is the standard of reasonable care? how do statutes affect this? how do circumstances play a role? parties? etc.), duty, and causation. Then we spent about a day on strict liability and a day on intentional harm. But I'd say 75% of the class was just duty and causation as principles.

I hope my other classmates missed the fact that market share liability is a doctrine of causation that must be argued after establishing duty and breach ... :{

Ranson v. Kittner = old case where a hunter accidentally shoots someone's dog thinking it's a wolf
Informed Consent = medical cases where plaintiff wouldn't have consented to certain treatment had they known certain things (usually the risks invovled)
Reasonable Alternative Design = products liability concept -- if you're claiming the design is defective, do you have to show that the company could have made it differently?

Oh, we did an informed consent case... Matthiest. On the syllabus it's under Negligence: Medical Malpractice, Industry Profession and Standards. As in,

I totally forgot about that one. Better revisit it :{}

oh well, that shit's for tomorrow

Guys, please don't cram right up until the exam. Give yourself a good night of sleep before it, and a good breakfast. I know I sound like an overbearing mom or guidance counsellor, but really...at this point, you're at a good place to write a good answer. Take today, and then go to bed reasonably early tonight.

And bathe, Burt. No one likes sitting next to the stinky guy in exams.

It's hard to sleep all that well, especially when they start using jackhammers outside my window at 7:00 am. and I have a groundfloor apartment. NYC's starting to piss me off

and I definitely still need to study ... if they have an Ybarra style res ipsa question on there, if I did nothing today I'd fail it. Time to study.

huh, tarasoff came up in one of my classes, too!

respondeat superior kind-of has a strict liability flavoring to it, right? the policy reasons being they want employers to do make every effort possible to ensure their employees are conducting themselves safely ... am I remembering this right?

nevermind, there are elements of foreseeability involved I think

My professor summed up Ybarra as the court creating a "duty to snitch" -- one party had to be found liable even if all could meet their burden, so the impetus was on the group to give up the individual responsible. The court found that clearly (by inference) one of the medical practitioners involved was responsible, and there was no other way to determine which one.

Yeah. Our professor talked about how that was a controversial decision, too, especially in Texas which basically said "fuck that shit".

We then spent two days debating how one could impose liability across the board on people who comitted the negligent act and those who did not... and I suppose it fit into how market share liability in the DES cases worked, too. Hmmm.

different from market share liability

Of course it's different, but it was the same principle at debate ... Ybarra was one of the central cases used by the plaintiff in Sindell v. Abbott

market share liability = everyone breached the standard of care in the exact same way by making the exact same product. All were negligent, but problem is you can't prove cause.

res ipsa in Ybarra = not all parties actually breached the standard of care

and I think the majority concluded that an almost Ybarra like solution would come about if they made the major market players liable ... in that they would file crossclaims to others in hopes of finding all the truly liable parties. As in, an impetus to find who's truly liable.

All weren't negligent in the DES cases ... you can't be negligent if you can't show causation, and since it's reasonable to assume only 1 manufacturer provided the drugs out of 200, then there are a lot of manufacturers who didn't directly cause the plaintiff's injury. It was one plaintiff suing for damages to her, not some across the board thing. (Hymowitz is the one where all the DES cases were revived by legislature)

Ybarra: "We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of his medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct."

All weren't negligent in the DES cases ... you can't be negligent if you can't show causation

Sorry, I'm speaking using a quirk of my professor, which is that he separates negligence in terms of conduct from liability. The way he uses it, negligence just = conduct that breaches the standard of care.

So what I mean is that all the manufacturers of DES breached the standard of care by making the same dangerous product.

Whereas not everyone in the operating room in Ybarra actually did anything wrong.

Oh, weird ... I mean yeah, they all breached a duty by falsely advertising a dangerous drug which they know was unsafe and ineffective as being safe and ineffective, but the argument was they couldn't all possibly be held as negligent, so I think the court chose the ones with the biggest market shares since they were the ones most likely to have caused the plaintiff's injury.

But if I remember that correctly, that's such a weird friggin decision ... like, using statistics to define causation, and isn't that no good?

yeah, Ybarra was declared as easily definable

and I think the majority concluded that an almost Ybarra like solution would come about if they made the major market players liable ... in that they would file crossclaims to others in hopes of finding all the truly liable parties. As in, an impetus to find who's truly liable.

Did they? I'm not sure about that. It would be awfully difficult to figure out who sold specific DES to a hospital a couple of decades earlier. Plus there's the problem that the specific manufacturer may not even be in business anymore.

Isn't it that liability is paid by all relevant manufacturers proportional to market share? I don't know -- we read Sindell but we didn't spend much time on market share liability beyond just teasing out a bunch of problems with it.

That was at the end of the majority opinion in Sindell ... it was about shifting the burden to show causation (like a modified Summers v. Tice), and they said it would inspire the manufacturers to file crossclaims to other manufacturers in order to find the real killer. I'll skim through it again, though I'm not sure how likely it is this type of question will show up on the exam.

xpost but I guess you're right -- market share liability would probably in some cases encourage cross-claims to determine true liability

yeah, I see what you're saying. In that way I guess it is a lot like Ybarra.

ugh, now I need to look up the ideas behind shifting the burden of causation :[]

How about this? I'll start throwing out random torts questions for you guys. Smaller ones, but they'll have some arguable points that might help.

A laundry delivery guy is on his route around 11:30. Having not eaten lunch, he decides to stop into a diner. His employer has not made any statement one way or the other about when or where their employees can take lunch, so long as their deliveries are made on time and to the right address. The delivery guy parks his car on the curb in front of the diner, but forgets to engage the park brake. The park gear fails, and the truck rolls down the hill on which it is parked, and is then hit by a drunk driver who crossed into the intersection illegally on a red light. The collision causes the truck to be pushed into a crowded intersection, where it hits a man crossing the crosswalk with the light. The man is killed instantly. His family brings a suit against the drunk driver, the truck driver, the the launder owner and the truck company. How would you apportion liability in this situation? Discuss. Assume that you are in a comparative liability jurisdiction.