The Law Court Affirms a Jury’s Ability to Infer Causation from Adequate, Reliable Evidence
In a 2009 decision, Addy v. Jenkins, the Law Court threw into question a jury’s ability to infer causation when a plaintiff cannot remember specifically how or why he was injured—at least according to a strong dissent by Justice Silver. Justice Silver questioned whether the Law Court had overruled prior precedent allowing a jury to infer how and why a plaintiff tripped and fell from evidence of where she fell—for instance through testimony the plaintiff, walking down stairs covered with torn linoleum, had tripped on a specific spot where torn linoleum was located. (Thompson v. Frankus, 115 A.2d 718 (Me. 1955)).
Seven years after Justice Silver’s dissent in Addy v. Jenkins, the Law Court responded in Estate of Smith v. Salveson, 2016 ME 100. It specifically noted that precedent like Thompson v. Frankus is still good law, and affirmed a jury’s ability to infer causation with an appropriate foundation.
How much and what kind of evidence is enough to allow a jury to infer causation when a plaintiff cannot remember how or why the injury occurred? Careful analysis of Law Court cases through the years demonstrates the importance of building a strong evidentiary foundation through direct and circumstantial evidence, physical evidence, eyewitness testimony, and expert opinion when necessary.
I think of this evidentiary foundation as the who, what, when, and where of proof of causation; who being other witnesses, what being physical evidence of the defect causing injury, when being proof the defect existed at the time of injury, and where being direct contact with the specific defect. Estate of Smith v. Salveson affirms that when a plaintiff’s attorney develops adequate, reliable evidence of these elements, the jury may still exercise its traditional role in inferring how and why an injury occurred.
Evidentiary Privilege Distinguished from ‘Confidentiality’: The Law Court Sheds Light on a Distinction with a Difference
The plaintiff in Pinkham v. Dep’t of Transportation claimed the Department (DOT) paid him unfairly for property taken to widen U.S. Route 1A in Ellsworth. (Pinkham, 2016 ME 74). He sought to discover the DOT’s appraisals of all other property taken for the same road-widening project. The DOT objected that appraisals were confidential by statute, and the trial court agreed.
On appeal, the Law Court held it was erroneous to conflate confidentiality in the context of a request under Maine’s Freedom of Access Act (FOAA), with privilege in the context of the “closed universe” of litigation. The statute protected records from disclosure to the general public in response to a FOAA request, but it did not protect against the discovery request of a litigant.
As the Law Court explained, even confidential information is presumptively discoverable in litigation, unless an evidentiary privilege applies. Privileges arise from relationships society deems worthy of protection—such as that between spouses, or a doctor and patient—and are created by statute only when the statute expressly identifies documents as privileged, or states they are not subject to subpoena, discovery, or use as evidence in a legal proceeding.
Pinkham provides useful guidance to plaintiffs’ attorneys for discovery of otherwise confidential information.