You be the Judge - Page 2

Glenn · #11 06-12-2005, 08:45 PM

The reduced burden of proof in civil court makes the lack of an expert even more conspicuous. In a criminal case it, it might be dangerous to put an expert on the stand because he would be forced to admit that there is no way to be certain that the drug caused the defect. With the reduced burden on the plantiff, though, the expert just has to say that it was more likely than not that the drug caused the defect, or that in his opinion, the drug probably caused the defect. The fact that they couldn't even get someone to testify to this makes their whole case look very shaky. Regardless, it is impossible to judge the merits of the case from a one page, possibly slanted summary.

The Armchair · #12 06-12-2005, 09:07 PM

I took it from the syllabus. That's really all there is to it, other than how the lower courts ruled. But if you can't judge the case, judge the facts given [img]/images/graemlins/smile.gif[/img]

OtisTheMarsupial · #13 06-12-2005, 09:45 PM

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It depends on what you are dismissing. They don't need to prove causation in order to prove negligence.

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That's not true. For negligence you must prove:
1. duty
2. breach of duty
3. causation of injury
4. injury

I think what you're confused about is that proof of causation here is not as strict as you're thinking. It's "clear and convincing" or "preponderance of the evidence."

OtisTheMarsupial · #14 06-12-2005, 09:55 PM

So, my verdict is

Procedurally, they lose because they couldn't convince the judge there was enough evidence even to be examined, but they might get another chance to come up with more evidence.

Based on the limited evidence they did present it sounds like a question for the jury, that is, they deserve at least a trial so the evidence could be weighed.

From my personal, biased standpoint, I think bastard doctors and medicine company! It makes me wonder why the doc didn't make her take two tests a week apart - I think that's standard in this type of situation.

The Armchair · #15 06-12-2005, 09:59 PM

[ QUOTE ]

Based on the limited evidence they did present it sounds like a question for the jury, that is, they deserve at least a trial so the evidence could be weighed.

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As it turned out, this did go to trial. The trial court ruled that they did not make out their prima facie case for negligence because of what I guess was a lack of proximate cause.

OtisTheMarsupial · #16 06-12-2005, 10:23 PM

you said it was granted summary judgment. Did they appeal? What's the cite?

The Armchair · #17 06-12-2005, 11:07 PM

I was going to wait until tomorrow, in hopes to get more replies.

OtisTheMarsupial · #18 06-12-2005, 11:58 PM

New Jersey, 1999???

trying not to spoil your surprise... it's... sooo... dificult...

2+2 wannabe · #19 06-13-2005, 12:20 AM

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The issue posed on this appeal is whether it is necessary to establish medical causation in a wrongful birth action that involves the prescription of drugs without adequate warning of the fetal risks posed by those drugs.

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what the hell is an issue?

youtalkfunny · #20 06-13-2005, 02:34 AM

My vote: case dismissed.