(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Plaintiffs’ Trial Brief on Substantial Contributing Factor; There is No Apportionment of Causation (Espinosa)MEMORANDUM OF POINTS AND AUTHORITIES
This is a medical negligence action wherein the minor Plaintiff, KYLIE SMITH, suffered severe birth injuries. There will be expert testimony on the issue of causation. The defense may argue that the Plaintiffs must show by a reasonable medical probability that a defendant caused the injuries by a margin of 51%. The defense may argue that it can ask the expert to apportion the injury between factors that caused the injury. Then because the expert won’t do that, the defense then claims there is no testimony as to a reasonable medical probability. This is not the current state of the law in California.
Plaintiffs are not required to quantify the percentage on causation. Plaintiffs experts need only testify whether the events were a substantial factor (BAJI No. 3.76). The inability to pin down the exact extent to which defendants’ conduct contributed to the outcome is immaterial for the purposes of causation. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317-1318).) [I]t was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Id. at p. 1321.)
Consequently, Plaintiffs submit the attached jury instructions on causation correctly stating the law that apportionment of causation is not appropriate. (See Part 2 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
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