Occasionally we see plaintiff-side experts attempt to opine, to a reasonable degree of medical certainty (or sometimes probability), that one of our clients’ products was a substantial factor – not in “causing” the purported injury, but in “increasing the risk” of that injury occurring. Such an opinion should be a red flag to any of our defense-side colleagues. It means that the plaintiff’s medical causation evidence is downright lousy.
It also means that a summary judgment motion on causation is probably appropriate. Causation allegations based only on “increased risk” are hallmarks of medical malpractice “lost chance” cases, not product liability. “Lost chance” is a medical malpractice concept derived from certain sections of the Second Restatement (§§321 and 323) applicable only where a pre-existing condition, not diagnosed in a timely fashion, gets significantly worse in the interim, and thereby arguably deprives the plaintiff of a “chance” for a cure. A number of courts have considered that “lost chance” to be a cognizable injury and have relaxed causation standards to permit recovery, because “but for” causation is virtually impossible to prove where the pre-existing condition was progressive to start
We have always maintained that, regardless of the validity of “lost chance” causation in medical malpractice, it’s simply not a product liability theory – since in product liability the product must actually have caused whatever injury that the plaintiff claims occurred. We’re thinking about one of our 50-state surveys on this issue, and we invite our readers to chime in on whether they think it would be helpful.
Overall, the “few and isolated references to loss of chance or opportunity are insufficient to conclude that the theory has been accepted in areas other than medical malpractice.” Alice Férot, “The Theory of Loss of Chance: Between Reticence & Acceptance,” 8 Fla. Int’nat’l U.L. Rev. 591, 624 (2013). So, for the time being, we only have time to work up a couple of states. One of these (no surprise) is Pennsylvania, where several of our bloggers practice, and which has recognized lost chance as a malpractice theory for quite some time. Another is California – home to a great deal of product liability litigation (and one of our bloggers). The law in both states is both clear and favorable, and it sets out in some detail the reasons why “lost chance” causation is incompatible with strict liability.
In Pennsylvania this theory of causation is allowed only in a medical malpractice cases where Restatement §323 applies – and requires that a provider of some service increase the risk of harm from a pre-existing condition. Hamil v. Bashline, 481 Pa. 256, 272, 392 A.2d 1280, 1288 (1978).
The doctrine of increased risk of harm is inapplicable absent the undertaking of a service either gratuitously or for consideration. Appellants’ allegations of negligence did not assert that [defendant] undertook to “render services” to [plaintiff], therefore a charge on increased risk of harm was not appropriate. Additionally, the doctrine presupposes an outside injury or source of negligence not concurrent with any alleged negligence by a defendant.
Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 107-08 (Pa. Super. 2002). See also Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182, 1185 (Pa. Super. 2000) (“increased risk” theory “limited . . . to cases where the issue is the adequacy of medical services”; legal malpractice case) (citation and quotation marks omitted); Marlin v. W.W. Babcock Co., 21 Phila. Co. Rptr. 383, 384 (C.P. Philadelphia Co. 1990) (an increased risk claim has “no place” in product liability action), aff’d mem., 599 A.2d 707 (Pa. Super. 1991).
The Third Circuit has likewise reached the same result, in a cigarette case where the plaintiffs attempted to equate product marketing with the “special undertaking” required by the Restatement:
Special-duty claims arise most often in the context of the provision of public or commercial services. Converting a company’s marketing into a special undertaking to inform the public about the known risks of its products would subject every manufacturer that advertises its products to liability for a “special duty” created by such marketing, and that duty would be violated by every material omission in such advertising. We are unwilling to so dramatically extend the scope of liability for a state-law cause of action.
Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir. 1999) (applying Pennsylvania law). See also In re Paoli Yard PCB Litigation, 35 F.3d 717, 761 n.31 (3d Cir. 1994) (same theory also not applicable to toxic tort cases) (applying Pennsylvania law).
Increased risk-type theories have also been asserted, and rejected, in Pennsylvania federal district courts. See Lempke v. Osmose Utilities Services, 2012 WL 94497, at *4 (W.D. Pa. Jan. 11, 2012) (courts “have invoked Section 323 in a variety of factual settings, but never in the context of a negligence-based products liability case”; “[d]esigning and producing a [product] is distinct from traditional notions of ‘service’”); Lobianco v. Eckerd Corp., 2004 WL 3009005, at *4 n.23 (E.D. Pa. Dec. 29, 2004) (increased risk “theory is limited to medical malpractice cases [and] is inapplicable to this [product liability] case”).
California has also decisively rejected “lost chance” causation in the product liability context. Indeed, California law is (for once) even more pro-defense on this point than Pennsylvania. “The ‘lost chance’ theory is essentially a relaxed standard of causation which reduces the plaintiff’s burden of proof from a probability to a substantial possibility that medical malpractice resulted in the loss of chance of survival.” Williams v. Wraxall, 39 Cal. Rptr. 2d 658, 666 (App. 1995). Recovery for a “lost chance” of avoiding injury that was less than 50% was outright rejected in Dumas v. Cooney, 1 Cal. Rptr.2d 584, 592 (App. 1991):
[W]e decline to establish a more lenient standard of causation. To do so would be contrary to sound logic, legal precedent, and public policy. It would unwisely encourage costly and unreasonable overtesting and overtreatment. . . . The uncertainty fostered by such a ruling would undoubtedly open the proverbial floodgates of our overburdened judicial system. We refuse to expand the circle of liability by abandoning established tort law principles of causation where there is only a mere possibility of detecting the [pre-existing condition].
Id. at 592 (citation and quotation marks omitted). Dumas remains the law. E.g., Uriell v. Regents of the University of California, 184 Cal. Rptr.3d 79, 87 (App. 2015) (recognizing Dumas rule; finding plaintiff met traditional 50%+ probability requirement). There are numerous recent unpublished California appellate decisions also following Dumas.
Dumas was recently applied in the product liability context in Hill v. Novartis Pharmaceuticals Corp., 944 F. Supp.2d 943, 959 (E.D. Cal. 2013). However, Hill went beyond Dumas and, even assuming that a lost chance claim could exist generally, refused to apply it to product liability cases:
[T]he lost chance doctrine, even when recognized, has been limited to medical malpractice cases. . . . [Plaintiff] has provided no authority − and the Court’s research reveals no authority − to suggest that the doctrine could conceivably apply in a products liability case where, as here, the plaintiff alleges that a pharmaceutical manufacturer’s failure to warn of risks associated with a prescription drug caused the plaintiff to develop a condition she would not otherwise have developed had she not taken the drug.
Finally, while we don’t have time right now to undertake a comprehensive nationwide search, our research for this post did turn up some cases from other states that, for the good of the order, we have collected, and are passing along:
Alabama: Williams v. Spring Hill Memorial Hospital, 646 So. 2d 1373, 1374-75 (Ala. 1994) (rejecting lost chance doctrine altogether).
Alaska: Crosby v. United States, 48 F. Supp.2d 924, 931 (D. Alaska 1999) (rejecting lost chance doctrine altogether).
Arkansas: Holt v. Wagner, 43 S.W.3d 128, 132 (Ark. 2001) (rejecting lost chance doctrine altogether).
Connecticut: Boone v. William W. Backus Hospital, 864 A.2d 1, 18 (Conn. 2005) (rejecting lost chance doctrine altogether).
District of Columbia: Grant v. American Nat’l Red Cross, 745 A.2d 316, 322 (D.C. 2000) (refusing to apply lost chance doctrine to “a claim that any provider of supplies or equipment used in medical treatment was negligent in manufacturing or processing the supplies”; “[t]o apply the loss of chance theory to cases such as these would virtually collapse the limitations that our decisions have set to the reach of proximate causation”).
Florida: Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984) (rejecting lost chance doctrine altogether).
Idaho: Manning v. Twin Falls Clinic & Hospital, Inc., 830 P.2d 1185, 1190 (Idaho 1992) (rejecting lost chance doctrine altogether).
Iowa: Wright v. Brooke Group Ltd., 652 N.W.2d 159, 177 (Iowa 2002) (agreeing with Third Circuit Steamfitters decision; only the “render[ing of] services to another” can possibly create §323 liability).
Kentucky: Kemper v. Gordon, 272 S.W.3d 146, 152-53 (Ky. 2008) (rejecting lost chance doctrine altogether).
Maritime Law: Bach v. Trident Steamship Co., 920 F.2d 322, 327 (5th Cir. 1991) (lost chance doctrine is “confined to medical malpractice cases”; rejected in maritime negligence action), vacated on other grounds, 500 U.S. 949 (1991).
Maryland: Fennell v. Southern Maryland Hospital Center, 580 A.2d 206, 214 (Md. 1990) (rejecting lost chance doctrine altogether).
Michigan: Mich. Comp. L. §600.2912a; Weymers v. Khera, 563 N.W.2d 647, 654-55 (Mich. 1997) (both rejecting lost chance doctrine altogether).
Minnesota: Fabio v. Bellomo, 504 N.W.2d 758, 762-63 (Minn. 1993) (rejecting lost chance doctrine altogether).
Mississippi: Ladner v. Campbell, 515 So. 2d 882, 888-89 (Miss. 1987) (rejecting lost chance doctrine altogether).
Nebraska: Rankin v. Stetson, 749 N.W.2d 460, 469 (Neb. 2008) (rejecting lost chance doctrine altogether).
New Hampshire: Pillsbury-Flood v. Portsmouth Hospital, 512 A.2d 1126, 1130 (N.H. 1986) (rejecting lost chance doctrine altogether).
New Jersey: Cipollone v. Liggett Group, Inc., 683 F. Supp. 1487, 1494 (D.N.J. 1988) (“[n]o product liability cases refer to the ‘lost chance’ doctrine”; “New Jersey courts have failed to apply the ‘lost chance’ rule in product liability cases”).
Ohio: Roberts v. Ohio Permanente Medical Group, Inc., 668 N.E.2d 480, 489 (Ohio 1996) (limiting lost chance to medical malpractice; “we stress that our decision today is limited in its scope and does not alter traditional principles of causation in other areas of tort law”).
Oklahoma: Hardy v. Southwest Bell Telephone Co., 910 P.2d 1024, 1025-26 (Okla. 1996) (“an action for loss of chance of survival may not be expanded to apply in an ordinary negligence action brought against one other than a medical practitioner or a hospital”); Alexander v. Smith & Nephew, P.L.C., 98 F. Supp.2d 1310, 1317 (N.D. Okla. 2000) (rejecting lost chance in product liability case under Hardy).
Oregon: Joshi v. Providence Health System Corp., 149 P.3d 1164, 1170 (Or. 2006) (rejecting lost chance doctrine altogether).
South Carolina: Jones v. Owings, 456 S.E.2d 371, 373-74 (1995) (rejecting lost chance doctrine altogether).
South Dakota: S.D. Cod. L. §20-9-1.1 (2012) (rejecting lost chance doctrine altogether).
Tennessee: Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (rejecting lost chance doctrine altogether).
Texas: Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 405-06 (Tex. 1993) (rejecting lost chance doctrine altogether); Solis v. Lincoln Electric Co., 2006 WL 1305068, at *7 (N.D. Ohio May 10, 2006) (“internal corporate policies to conduct rigorous testing of the safety of their products, and/or to conduct research on the health effects of their products, . . . do not translate into a §323 voluntary undertaking”) (applying Texas law).
Vermont: Smith v. Parrott, 833 A.2d 843, 848 (Vt. 2003) (rejecting lost chance doctrine altogether).
Virginia: Lowmack v. General Motors Corp., 967 F. Supp. 874, 881-82 (E.D. Va. (refusing to apply lost chance doctrine to product liability case; doctrine limited to medical malpractice), aff’d mem., 139 F.3d 890 (4th Cir. 1998) (“the district court correctly determined that the Virginia courts would not relax the ordinary requirements of proximate causation outside the medical malpractice context”).
Wisconsin: Beacon Bowl, Inc. v. Wisconsin Electric Power Co., 501 N.W.2d 788, 806 (Wis. 1993) (rejecting lost chance in electricity case; extending it “beyond the medical misdiagnosis and medical omission type of case would provide plaintiffs who are unable to produce sufficient evidence of a positive fact with a fallback position”).