[Note: Today I'm going to discuss an IPI 15.01 problem. In future columns, I'm going to write about other instructions and how to work with them. I have become a big proselytizer on the importance of jury instructions and I love presenting on them.]
It happened again, just the other day.
In a recent arbitration, plaintiff's treating physician connected the injury to the accident. Defense retained a well-qualified specialist to give another opinion. The defense doctor thoroughly read all of the records and wrote a lengthy report. He extensively detailed the past medical history. He carefully charted a complete chronology. He showed persuasively that the plaintiff had had many of the same issues even before the accident. He billed a small fortune for his work.
As an arbitrator, rendering an opinion on causation is one of the most difficult problems to face. What is causation? In a grand philosophical sense, everything is causally related to everything. A butterfly flaps its wings in China which starts a chain of events resulting in a flood in Iowa. The accident would not have happened but for a wiring defect which caused a car alarm to go off in the street at three in the morning which woke up the defendant who couldn't go back to sleep causing him to be slightly disoriented so he missed the turn or skipped a step in the procedure which caused the accident.
All we tell our juries (in Illinois Pattern Instruction 15.01) is, a "proximate" cause is "a cause that in the natural or ordinary course of events produced the plaintiff's injury."
So, first, the definition uses the word being defined. That's no help. Second, what in the world is "the natural" or the "ordinary" course of events? It sounds like a phrase lifted from the Declaration of Independence. Like, what are unnatural or un-ordinary courses of events? I couldn't begin to explain what this is supposed to mean. I have never heard anyone try to explain it. I've never heard it even referenced in a trial because it's just too abstract and vague to be of any help in determining one of the most important case issues.
Ironically, the Comments to IPI 15.01 say, "The Committee modified this instruction with the intent of making it more comprehensible and conversational." It's true that it used to be worse. We used to argue for hours whether the judge should select "a," "any" or "that" cause.
The last part of IPI 15.01, the long form, is clearly beneficial to plaintiffs: "It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury." This is great stuff for a plaintiff. As a note, long form/short form arguments are a frequent, mostly unavailing, ground for appellate review.
Getting back to the arbitration, when the defense doctor says, "not a significant contributing cause," the plaintiff naturally jumps up and says, so what?
The plaintiff correctly points out that the jury is not told to assess "significance." They are not to determine the amount of cause the defendant's conduct constitutes, or the degree of significance. IPI 15.01 says nothing about extent and neither do any other causation instructions.
To be of any assistance to the finder of fact, the defense doctor had to give one of two conclusions: either, that there were no new complaints and no change in the plaintiff's condition before and after the collision, or that the collision was not even a cause of the injuries claimed. Not even any little bit of the cause. Not one per cent. None.
Without one of those conclusions, nothing else the reviewing doctor says is determinative of causation. The accident was minor. The conditions were pre-existing. There were gaps in treatment, inconsistent complaints, a lack of objective findings.
Certainly, those findings affect damages. On the causation side, those findings relate to the second possible conclusion a reviewing doctor might make—no difference in the condition before the occurrence and after. Meaning, the accident caused no damages.
However, if there is any difference or any exacerbation or any change of any sort, a jury is supposed to find either that it is or is not causally related. That's a yes or no. It's not a "well sort of" or a "not really that much."
Of course, per IPI 3.08, the trier of fact doesn't have to pay any attention to any expert testimony. But the fact that a well-regarded expert, selected by the defense, carefully studied the entire chart and chose not to rule out the accident as a cause is a persuasive point.
In arguing "even just a little," trial judges are used to hearing about that deadly straw that broke the camel's back. It was just that one last straw that did it. Just that ever so tiny straw.
Here's where the defense might say. No, it wasn't that straw. That tiny straw did not break the poor camel's back. Rather, the reason our unfortunate camel needed forty-seven chiropractic treatments was because of the accumulated load. It was the other ten bundles of twenty thousand straws that did it. Even without that last straw, that camel was going nowhere. His back was already broken when that new forklift guy--you know, the guy who keeps sneaking out for a smoke-- tried to pile on that last shipment of quarter-ton bundles instead of calling for another camel because he was running so late.
A few other instructions are noteworthy to this discussion. IPI 12.04 relates to concurrent negligence of another person and IPI 12.05 is concurrent negligence of a thing ("outside agency"). They clearly tell the jury that if they find negligence and causation it is not a defense that something else may also have been a cause.
These instructions are a trade-off for the defense. On the one hand, they tell the jury something valuable for the plaintiff. They tell the jury not to refuse to find causation just because there were also other factors, essentially reinforcing the same idea from IPI 15.01 that plaintiff needs only "a little" causation from the defendant.
On the other hand, many defendants are quite willing to accept that benefit to the plaintiff in exchange for the other part of the instruction which gives the defense their sole proximate causedefense. The jury is not to find causation if they find something else is the "sole" proximate cause. That essentially highlights what is said in IPI 15.01 because it emphasizes that "only a little bit" still means some. It can't be none or the plaintiff loses. This is a great way for the defense to get the jury thinking about something other than the defendant's conduct. That darn car alarm. The careless camel loader.
Most judges are fairly open to allowing a sole proximate cause argument and letting the jury decide how far afield it goes. Still, it is the same where-do-you-draw-the-line problem facing whoever has to make the decision. Causation is just a tough problem that can't really be defined. It is especially tough in medical malpractice cases. A study might find more defense verdicts due to causation than negligence. That's almost certainly true in legal malpractice cases because of the case-within-a -case rule.
Meantime, I'm writing my opinion on this arbitration. You can probably guess the result.