This case about proof of medical causation should get some attention.

Plaintiff’s wife died while under Advanced Cardiac’s care. Its expert testified (the court having denied a motion in limine to exclude it) that Advanced didn’t cause the brain hemorrhage that killed her and that any number of other factors could have caused it. After a defense verdict, Plaintiff appealed.

Her argument was that the expert shouldn’t have been allowed to say what else “could” have caused the hemorrhage because doctors are allowed to testify only to what is medically probable.

The Court of Appeals holds that this applies to plaintiffs because they have the burden of proof. Defendants can elect merely to attack the plaintiff’s evidence, which can be done with possibilities. To require probabilities of defendants would shift the burden. The court concludes, citing and discussing cases from other jurisdictions, that this is the majority rule. Allowing the evidence was therefore not an abuse of discretion.

This is a pretty nice opinion. Its discussion of the facts is, by CA1 standards, commendably short. It dispenses with a standard-of-review paragraph, instead neatly mentioning the standard when stating its conclusion. And it manages to discuss a large number of cases in a brief and efficient way (which several of our judges seeming can’t). It would be ungrateful of us to point out that it has too many footnotes.

(link to opinion)