Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
Legislative Ban (Mar. 5, 2009), available at https://perma.cc/GV98-DCB3. Does the existence of
toxins like Bisphenol A, which follow a different dose response curve, challenge the rationale
behind Judge Calabresi’s rule in Zuchowicz?
The actual Bisphenol A multidistrict litigation was dismissed on summary judgment on
the grounds that the plaintiffs failed to state a cognizable injury; the plaintiffs attempted to claim
damages for their purchase of BPA-containing products, not any medical injuries that resulted
from contact with BPA. In re Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., 687
F. Supp. 2d 897 (W.D. Mo. 2009). If a plaintiff did present a claim for damages based on
development disabilities caused by BPA, would you, as a judge, attempt to find creative means
(industry liability theories, statistical causation, judicially brokered settlements) to manage to get
relief for the plaintiffs? Or would you dismiss the case, believing that other branches of
government are best suited to manage such complex problems?
C. Lost Chances and Indeterminate Plaintiffs
A variation on the problem of statistical evidence arises when the plaintiff suffers a harm
that was likely to have happened even if the defendant had not acted in such a way as to increase
the risk of that harm still further. How can any such plaintiff show by a preponderance of the
evidence that, but for the defendant’s act, the injury would not have occurred? The classic case is
medical malpractice on patients with severe illnesses:
Herskovits v. Group Health Coop., 664 P.2d 474 (Wash. 1983)
This appeal raises the issue of whether an estate can maintain an action for professional
negligence as a result of failure to timely diagnose lung cancer, where the estate can show
probable reduction in statistical chance for survival but cannot show and/or prove that with timely
diagnosis and treatment, decedent probably would have lived to normal life expectancy.
Both counsel advised that for the purpose of this appeal we are to assume that the
respondent Group Health Cooperative of Puget Sound and its personnel negligently failed to
diagnose Herskovits’ cancer on his first visit to the hospital and proximately caused a 14 percent
reduction in his chances of survival. [The trial court granted summary judgment for the
defendant]. It is undisputed that Herskovits had less than a 50 percent chance of survival at all
times herein . . . .
The complaint alleged that Herskovits came to Group Health Hospital in 1974 with
complaints of pain and coughing . . . . In mid-1974, there were chest pains and coughing, which
became persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records
confirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with
cough medicine. . . . In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope
that the warm weather would help. Upon his return to the Seattle area with no improvement in his
health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion.
Within 3 weeks, Dr. Ostrow’s evaluation and direction to Group Health led to the diagnosis of
cancer. In July of 1975, Herskovits’ lung was removed, but no radiation or chemotherapy
treatments were instituted. Herskovits died 20 months later, on March 22, 1977, at the age of 60. .
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