Destroying Phantom Causes through Aggressive Motion in limine Practice
posted on February 13th, 2008 in Causation by clintPhantom causation defenses kill meritorious medical malpractice cases everyday across the nation. It is the dragon that must be slayed before the trial even starts. There is a way to do it. First, you should be aware of Mitchell v. Ensor, 2002 WL 31730908 (Tenn.Ct.App.), in which the issue for review was whether the defense expert could testify as to alternate causes of the plaintiff’s condition. The plaintiff asserted that the physician expert’s admission that he did not know the specific cause of the plaintiff’s condition rendered his testimony speculative. The plaintiff also contended that the defense expert’s “alternate cause” theories were based on a possibility rather than a probability. Thus, the plaintiff moved to exclude the defense expert’s testimony regarding causation. In a strange opinion, the Court of Appeals concluded that defendants in medical malpractice actions may introduce expert testimony of possible causes of injury as a means to rebut the plaintiff’s theory of causation. Importantly, the defendant need not prove another cause. He only has to convince the trier of fact that the alleged negligence was not the legal cause of injury. In proving such a case, a defendant may produce other possible causes of the plaintiff’s injury. The result is that plaintiffs must be prepared to inquire about phantom causes during discovery in order to prevent a surprise at trial. Note that this is an unreported decision.
In contrast, the Supreme Court in Hunter v. Ura, 163 S.W.3d 686 (Tenn.2005) held that a plaintiff can exclude these phantom causes before trial. The plaintiff may invoke McDaniel v. CSX to exclude “possible alternative causes” by challenging the reliability of the defendant’s alternative cause theory. Thus, the effect of Hunter is an eviscerated Mitchell ruling. Possible phantom causes of injury can be fought in limine. The lesson from Hunter is that effective motion practice in advance of trial can make the phantoms vanish.