Steve D. Silin, trial lawyer and partner at Berman & Simmons

Shifting the Burden: Fairness for Injured Persons

As plaintiffs’ lawyers, we must recognize and work to overcome the fundamental injustice of situations in which the defendant’s own actions would otherwise serve to insulate him from liability due to a lack of proof. Courts are increasingly open to adopting ameliorative doctrines designed to avoid such a result. A thorough knowledge of these doctrines is critical to successfully representing a plaintiff in such cases and, perhaps more importantly, to anticipating those situations in which the basic principles underlying those rules may call for their novel application.

Historical Underpinnings
Most of us are familiar with Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). The Court held that two members of a hunting party who had negligently fired their guns in plaintiff’s direction could be held jointly liable for the resulting injury despite plaintiff’s inability to prove which of them had fired the shot that struck him. The court ruled that the innocent plaintiff should not be denied a remedy, and that the negligent defendants should bear the burden of uncertainty created by their own actions.

Other courts, including in Maine, have since followed the lead of Tice and recognized the injustice of imposing this strict burden of proof on plaintiffs in cases involving multiple tortfeasors independently causing an indivisible injury. InPaine v. Spottiswoode, 612 A.2d 235, 240 (Me. 1992), the Court held that where no apportionment is possible, each defendant is liable for the entire injury.

The rule of Paine was then extended in Lovely v. Allstate, 658 A.2d 1091 (Me. 1995) to the situation where a single defendant’s negligence combines with a preexisting condition to produce an indivisible harm.

Loss of A Chance
One argument still open for development by thoughtful plaintiffs’ lawyers arises in medical malpractice cases where the defendants’ negligent conduct in failing to diagnose or treat plaintiff’s preexisting condition, frequently cancer, has deprived the plaintiff of a less than fifty percent chance of survival or cure. In these cases, defendants have argued that the plaintiff cannot meet her burden of proof on causation by a preponderance. In response, several courts have developed some form of a relaxed causation or a “loss of a chance” rule. Under the former, plaintiff need only produce “[e]vidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition.” Scafidi v. Seiler, 119 N.J. 93, 108, 574 A.2d 398 (1990). Under the latter approach, plaintiff will recover the value of the lost chance of a more favorable outcome, even if it is less than fifty percent. Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E. 2d 819 (2008). The basis for both rules is that the defendant’s negligence has effectively made it impossible to know whether the plaintiff would have achieved a more favorable outcome in the absence of negligence.

Maine’s Law Court, while acknowledging the loss of a chance rule, has not yet adopted either it or the relaxed causation rule. Phillips v. Eastern Maine Medical Center 565 A.2d 306, 308 (Me. 1989). However, the Court’s application of the basic principles of fairness in the cases discussed above suggests that it will do so if presented with an appropriate opportunity.

Failure to Test
Another area in which the relaxed causation rule has been applied is in cases where the defendant’s negligent failure to order a diagnostic test that might have demonstrated the harm makes it difficult or impossible for plaintiff to prove causation.

Recurring Dangerous Conditions
Similar fairness concerns have been applied in contexts other than burden shifting to allow plaintiffs to overcome unreasonable burdens of proof on the elements of a cause of action. Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846 (Me. 1995) is a premises liability case in which the trial court, following the traditional liability rule, required that plaintiff show that the defendant had notice of a foreign substance on the floor. On appeal, the Law Court reversed, holding that the jury should have been instructed that where plaintiff can prove that the defendant created a foreseeably recurring dangerous condition, the defendant will be liable for failing to take reasonable steps to guard against resulting injuries even in the absence of proof of notice of a specific instance of danger. This development of the liability rules is consistent with the familiar rule of res ipsa loquitur, which permits an inference of defendant’s negligence if the event causing injury would likely not have occurred in the absence of such negligence.

Apportionment of Emotional Distress
It is important for plaintiffs’ lawyers to be alert to the opportunities to use the principles inherent in these rules to circumvent obstacles to proof, whether through burden shifting or drawing of inferences. Ward v. Washburn Forest Products, Cumberland County CD-03-48 (jury verdict, March 9, 2003) is another example where we achieved a recovery by shifting the traditional burden of proof. In that case, we were able to apply the principles inherent inLovely in the novel context of a case involving an accident in which plaintiff’s husband was killed when the car he was driving was struck by a logging truck that had come over the centerline. Plaintiff, a passenger, suffered some relatively minor physical injuries as well as the horror of witnessing her husband’s death. After the settlement of the wrongful death case, which necessarily included her claim for loss of consortium, Mrs. Ward went to trial on her separate injury case. Although she was entitled to damages for the emotional distress attendant to her physical injuries, any damages allocable to her witnessing her husband’s death were, under 18-A M.R.S.A. §2-804(b), subsumed in the wrongful death case. Although the jury was instructed that it could award damages only for the emotional distress arising from plaintiff’s own injuries and not from the witnessing of the death of her husband, and although the defendant argued that much of her emotional distress arose from seeing her husband’s death, the jury awarded $750,000. It was the important principle recognized in Lovely, imposing the apportionment burden on the defendant, that made the difference in the case.

Of course, our job is always to maximize compensation for our clients by creatively pushing for developments in jurisprudence in appropriate cases. We must be alert to the opportunities to use fairness principles to argue for changes in the law, particularly where a tortfeasor would otherwise be unfairly insulated from liability. By doing so, we will help injured people gain access to justice by expanding the opportunity for recovery and fair compensation.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.