Date: Thu, 15 Feb 2007 2:54 PM

From: Benjamin Zipursky

Subject: Loss of chance

Richard:

I am quite attracted to this view, which essentially relies on two ideas:

(a) various pieces of concrete evidence (E.g., the position of the shooter relative to the victim, the kind of shot used, etc.) to generate a prima facie case of causation for the plaintiff;

(b) the inadequacy of naked statistics to rebut the prima facie case.

I think (a) is vitally important and have said so elsewhere.

My hesitation to jump into this camp rests on my uncertainty over what justifies (b). To say this is not that I disagree with (b), or to say that I think naked statistics are sufficient to prove an element. It is literally to say that it is important to state a theoretical ground for the inadequacy of naked statistics.

One of the more attractive ways to deal with some of the naked statistics puzzles is to say that a plaintiff must do better than this to justify a deviation from the status quo to justify the state cranking up its legal machinery to shift the loss. On the face of it, that does not work when it is the defendant who is trying to use naked statistics in support of the default position.

Another attractive way to justify the naked statistics bar in the plaintiff scenario is to say that naked statistics are really not sufficient to justify the factfinder in believing what the plaintiff asserts. Here again, I am skeptical that this transfers over to the defendant's case. Certainly, in a 100 person version of Summers v. Tice, the fact that it is 99% likely that it was not the defendant Tice seems to me to create a very good reason -- coupled, at least, with Tice's own testimony that it was not him -- to undercut the factfinder's belief that it was Tice. This would apply, in my view, even if the 99 other hunters (Simonsons) could make the same argument.

Ben Zipursky

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