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ALI Changed Expert Testimony Standard, But Should States Follow It?
We are both members of the American Law Institutes (ALI), an institution that's been around since 1923. Membership is made up of judges, practicing attorneys and legal scholars from both the United States and the international legal community. The ALI employs a deliberative process to gain insights into its various members' understanding and opinions of the law, then it drafts and publishes Restatements of the Law, model codes, and legal studies to promote, as the ALI Web site home page states, 'the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work.'
We have been reviewing the ALI's Tentative Draft No. 5 of the Restatement (Third) of Torts, Liability for Physical and Emotional Harm. The most salient thing at the moment in this lengthy document is the stub chapter ' Chapter 5, titled, 'Factual Cause' ' which has only one additional section in it, ' 28. Section 28 stated in its first paragraph the general rule that plaintiffs have the burden of proof, and in its second paragraph a version of the old Summers v. Tice (199 P.2d 1 (Cal.1948)) form of alternative causation.
There is only one comment under' 28, comment e, and that comment has very little to do with either of the black-letter paragraphs. Instead, comment e sought to abolish ' you heard that right, abolish' any requirement that an expert witness testify to a 'reasonable degree of medical certainty' or 'medical probability' or any of the similar formulations that courts have used for half a century or more to ensure that in-court expert witnesses use the same standards before a jury that they would use in their everyday practices.
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