Take physical characteristics into account was

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weighs 250lbs? (Take physical characteristics into account) Was Defendant negligent? Would a reasonable RR light the stairwell? (run through the hand formula) -Was defendant negligence cause in fact? -Not lighting stairwell was a substantial factor in bringing about the fall (possibility that it might have occurred without defendant’s negligence is not sufficient to break the chain between the negligence and the injury Gentry v. Douglas Hereford Ranch, Inc -Man carrying gun tripped and gun shot woman in the head -Was ranch negligent? (did he trip over the steps?) - Could not prove whether he tripped over steps or not so cannot conclude cause in fact as a matter of law Kramer Service, Inc. v. Wilkins -Broken piece of glass hit plaintiff’s head and caused a cut then he developed cancer and now he sues that they were the cause of his cancer -Were the defendants the cause of the cancer? - Problem: do not know what causes cancer “The fact that he may have had some pre-existing susceptibility to emotional distress does not necessarily preclude liability if it can be shown that the conduct intensified the pre-existing condition of psychological stress” Bartolone v. Jeckovich -Man in car accident thereafter had a mental breakdown – this aggravated his schizophrenia -Must take plaintiff as he finds him and hence may be held liable for aggravation for prior conditions Herskovits v. Group Health Cooperative -Failure to timely diagnose lung cancer decreased his survival percentage by 14%. Cannot show that more likely than not that defendant was the cause of death because plaintiff would have died even if timely diagnosed. May be able to recover for the time and economic factors lost because of the late diagnosis - Takeaway rule: once a plaintiff has demonstrated that the defendant’s acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant rule -If you increase the risk of harm then you are liable for that increase but not for harm that would occur anyway – recover for time lost because of late diagnosis Daubert v. Merrell Dow Pharmaceuticals, Inc -Bendectin is prescribed to help combat morning sickness – it is alleged that the children born have birth defects of limb reduction -For the most part we do not know how birth defects come about
-Expert says that Bendectin can be the cause of the birth defects -Two part test to decide if expert testimony (1) We must determine nothing less than whether the experts testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science (2) We must ensure that the proposed expert testimony is relevant to the task at hand, i.e., that it logically advances a material aspect of the proposing party’s case.

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