3.Pure Several Liability: 16 states have; only hold ∆s liable for their fault %.D.π can choose who to recover from.E.∆ from whom π collects full judgment can seek indemnityor contribution from other joint tortfeasors.1.Contribution: arises when one pays for more than share and seeks contribution from others.2.Indemnity: One who is without fault but compelled by operation todefend himself against the wrongful act of another; recovers from the wrongdoer the entire amount of loss.F.Where the act of a single TF was sufficient to cause some but not all of harm to π and another TF’s conduct contributed some other harm to π, Cts.require divisibility and separate judgments.1.Action in concert, successive injuries, and indivisible harms such as death and fire are indivisible.2.This burden of proving apportionment of damages rests rests upon ∆s. Fugere v. Pierce.Types of Joint and Several Liability:1.Acting in Concert2.Vicarious Liability3.Independent actors cause an indivisible harmLoss of Chance of RecoveryI.Permitted in Med. Mal. cases. Matsuyama v. Birnbaum.A.A theory of injuryB.Originally was all or nothing rule, only allowed for πs who had >50% chance prior to med. mal.C.To determine damages,1.Fact Finder first calculates total amount of damages allowable under wrongful death claim, or in the case of med. mal. not resulting in death, the full amount of damages allowable for the injury.2.FF must calculate π’s chance of survival or cure immediately preceding the Med. Mal.17
3.FF must then calculate the chance of survival or cure that π has as result of the med. mal.4.FF must subtract the amount derived in step 3 from amount derived in step 2.5.FF must then multiply amount determined in step 1 by the % calculated in step 4 to derive proportional damages award for loss of chance.D.24 states have some form, 16 reject, and rest have not decided.Using Scientific and Technical EvidenceI.particularly important in toxic tort cases, where π must introduce sophisticated scientific evidence to establish general and specific causationII.In toxic tort cases, π’s generally relied on 4 different typos of studies to prove causationA.Epidemiological studies: Measures consequences of exposure in human population (best proof of causation, but such studies are costly and sometimes impractical)B.Structure-Activity Analysis: Examines substance with similar chemical structuresC.In vitroresearch: studies effects of a substance in living cells, bacteria, or animal embryos.D.Animal Bioassay (in vivo) study: Measures effects of a substance on laboratory animals under controlled conditions.III.Seeks to quantify how much the incidence of the disease can be attributed to a substance by establishing relative risk (describes strength of association)IV.Relative risk of 2.0 or greater is generally sufficient to prove more likely than not the disease was caused by substance.