CalBizLit has been to tons of medical and other expert depositions where someone, usually a co-defendant counsel, has asked a series of questions along the lines of "Now Doctor, can you say to a reasonable medical certainty that . . . " [fill in blank: this accident resulted in the need for future surgery, exposure to these chemicals caused this disease, there would have been a better outcome if the physician had met the standard of care, whatever]. In aweak moments, CalBizLit has even caught himself asking the same questions.
But CalBizLit knows what the California rule is in tort cases: In a case involving complex issues of medical causation, the plaintiff must show to a reasonable medical probability that the substance, the product, the negligence, the whatever, caused the present or future harm for which the plaintiff wants to be paid money. That's Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953; Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, Whitely v. Phillip Morris, Inc. (2004) 117 Cal.App.4th 635, Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71 and a bunch of other cases.
More after the jump.
Still, CalBizLit got curious about where this "reasonable medical certainty" business came from. So, I did a West Law search on the phrase "a reasonable medical certainty," and here's what I found: You get thirty-nine hits. But only eighteen of those are citeable -- the rest are either unpublished, depublished, or there's some other reason WL has put up a great big red flag. So excuse me, but I didn't read those.
Of the eighteen citeable cases, seven are criminal cases, which generally throw the phrase around without much discussion, one's a workers' compensation case and one's a goof-ball insurance coverage case -- trust me, it doesn't move the ball anywhere you care about. So that leaves nine cases.
Of those remaining nine cases that contain the phrase "reasonable medical certainty," we have Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, California's seminal case on fear of cancer and medical monitoring costs as damage elements, and the phrase appears there in the dissent. We have Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658, another medical monitoring case, which states without citing any authority whatsoever that "medical monitoring damages reimburse the specific cost of periodic medical testing which is proved by a reasonable medical certainty to be necessary." We have four medical malpractice cases involving loss of the chance to terminate the pregnancy resulting in birth of a genetically damaged child, and none of the cases hold that "certainty" is part of any legal standard. We have a couple of malpractice cases where some doctors had testified using the phrase, but the courts of appeal neither opined that it was necessary or discussed what it meant.
And we have another toxic tort case, Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 where, I kid you not, the Court of Appeal upheld a nonsuit where the trial court ruled that the plaintiffs hadn't proved causation "with reasonable or probable medical certainty," whatever in the world that means.
Where I'm going with this, I suppose, is that the defense can always construct an argument that something or other has to be proved to "a reasonable medical certainty," simply because this phrase is part of the loose legal lexicon and it's been done in the past. But if defense counsel want deposition testimony they can use at trial for a motion in limine, a motion for nonsuit, or for cross-examination, their best bet is to use the language that is clearly supported by the case law: "Doctor, can you state to a reasonable medical probability that exposure to these incredibly benign products caused Mr. Jones' injuries and disease?" Because frankly, it all comes down to the same thing: does the doctor/expert think, based on his or her scientific training and experience, that more probably than not there is causation?