Among the actions taken by the ALI at the meeting in San Francisco this past week was the rejection of the need for the magic words "reasonable degree of medical certainty."
The following language was approved for Section 28(a) of the Restatement of Torts Third:
"Subject to Subsection (b), the plaintiff has the burden to prove that the defendant’s tortious conduct was a factual cause of the plaintiff’s physical harm."
Subsection (b) describes the circumstances under which the burden of proof is shifted to the defendants.
Comment (e) rejects the need for an expert to state an opinion to a "reasonable degree of medical [or scientific] certainty" or a "reasonable degree of medical [or scientific probability." The Comment states that "[t]here is a troubling inconsistency in imposing a higher threshold for the admissibility of expert testimony than is required for a party to meet the burden of proof" and that "the reasonable-certainty standard provides no assurance of the quality of the expert’s qualifications, expertise, investigation, methodology, or reasoning."
The Reporter’s Note cites with approval Judge Cain’s opinion in Bara v. Clarksville Mem’l Hospital Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002) ( holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.).
I tremendously enjoyed my first ALI meeting but I must say that six days in San Francisco is enough for me. I love the city but was very happy to get home last night and sleep in my own bed in my own home in the country, far from the constant sound of traffic and sirens and the constant flow of people.