Episode 20. Chronologies vs. Fallacies

Developing an accurate timeline of events is an essential tool in evaluating causation, demonstrating alternative causes of harm, and defeating the logical fallacy that harm was caused by a prior event (ad hoc ergo propter hoc). In this episode of Coverage Counsel Is In, Robert Sallander provides examples of how to defend against the ad hoc ergo propter hoc fallacy.

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Transcript

Let's start with a little Latin. Add hoc, ergo, proctor hoc.

A logical fallacy that we find in the law all too often. Welcome back to another

episode of Coverage Counsel is in. This is your host Bob Salander and I'm happy to

be with you today. When we talk about liability we're talking about one element of

causation or causation is an element of establishing liability. And the causation

requirement finds its way into liability policies.

It might be because damages have to be because of property damage or bodily injury

or personal or advertising injury under the insuring agreement or it may be that the

damages have to arise out of a wrongful act. So there's always some species of

causation that we're addressing when we're addressing liability and liability insurance

coverage.

Causation though is defined in multiple different ways. The old way of defining it

was the but for test, but for X, Y would not have happened and that means

causation. More modern iterations of the causation requirement is,

was the act a substantial factor in bringing about the harm that's alleged.

And there can be multiple factors, so it doesn't have to be the only factor.

It just has to be a substantial factor, meaning it is something that contributed.

So we have in the law multiple definitions of causation and various tests for

causation. But the logical fallacy is always present.

Ad hoc ergo proctor hoc, which translated means after the thing,

therefore, because of the thing. This is a fallacy because not everything that

happens, happens because of the thing that went before it.

So you can't always say that a person got injured because the sun rose in the

morning. If they're injured during the day, that's after the fact of the sun rising

and we all know that after the thing in that instance does not mean because of the

fact. Of course, there are circumstances that are simple.

The defendant's car ran into the plaintiff. Therefore,

because of the collision, the plaintiff was harmed.

But life isn't always that simple and neither are lawsuits or the analysis of

causation. And that's why I think it's important in almost all cases to start with

a chronology. A chronology is an essential aspect to analyzing coverage.

And it's an essential element or tool to analyzing causation.

I'm going to give you two examples, one in the bodily injury context,

another in the property image context, where the issue of chronology or sequence

becomes extremely important in evaluating causation.

It's also worth keeping in mind that using the chronology helps you identify multiple

potential causes, which may be important where you have joint tort feasors,

or you have a situation where you can get contribution from another party.

Here's the bodily injury example. Consider a traffic collision.

At the scene of the accident, the ultimate plaintiff does not complain about any

injuries at all.

However, within let's say a year of the accident,

the plaintiff makes a claim for injury to his back and his spine where he's had to

undergo some disc fusion and is seeking damages for pain and suffering and of course

the cost of the medical treatment. The plaintiff alleges that the harm to his back

was caused by the accident because it happened where he experienced the pain and had

the surgery after the accident ad hoc ergo proctor hoc.

If you stop there and use the logical fallacy you've established that or at least

you would conclude that because of the accident, there was bodily injury and

therefore there's liability. From a coverage standpoint,

you're at least looking at the duty to defend because there's an allegation that the

bodily injury is because of the use of the auto.

But then we look a little deeper and we ask about the plaintiff's medical history.

Let's say we go back five, maybe ten years and find out that the plaintiff has

been complaining of back problems for years and that his doctors have been

recommending a spinal fusion of vertebrae. Now,

you've got a chronology that you can look at. You can go in and you can see the

first complaints of back pain, the diagnoses, the recommendations,

and how they all pre -existed the accident.

And it's not a logical fallacy to say if something pre -existed the accident,

it was not caused by the accident. With this chronology in place now the issue that

you're dealing with is not only what caused the plaintiff's injury or the need for

the surgery especially where the need for the surgery pre -existed the accident.

You're also talking about whether the accident was of a sufficient magnitude to

aggravate the pre -existing condition. We sometimes refer to that as the eggshell

skull situation. Then you're going to have an expert,

medical expert who testifies, well, this, the force of this

accident was

not adequate or was adequate to aggravate the condition and

part of that analysis will be based on the forces and the particular orientation of

the vehicles the weight of the vehicles the speeds those kinds of things But you

wouldn't get into those and you can't put them in proper perspective unless you have

the chronology. So enough on the bodily injury. Let's talk about property damage.

Imagine a construction defect case where the homeowner alleges that their home has

experienced damage because of differential movement of the foundation caused by soil

movement. The damage to the house is manifested by floors that may be out of level,

but most notably it'll be drywall cracks that don't follow seams,

diagonal cracks, or maybe sticking doors and windows or separations of building

elements. In the case, the plaintiff will say these cracks,

these sticking doors, these manifestations did

not happen until or did not exist until after the house moved.

But nobody's seen the house move. So now you need a chronology. Your chronology is

going to require a baseline.

A baseline in these situations is often a floor level survey.

Everybody assumes that there's no variation in the elevation of the floor at the

time the house is built and brand new, But that's not really the standard of home

construction Engineers will give you a standard such as one inch in variation over

ten feet Twenty feet something like that. So you'll need a you'll need an expert to

tell you what the standard is going to be

So then you look and you have a floor level survey done and see if there's a

variation of the one inch over 10 feet or not.

Then in your chronology, you chart the circumstances that could have caused the soils

to move. Factors that cause soils to move will be

example, which is usually not a factor, and if it is,

it causes movement almost immediately. More commonly, you might deal with the soils

becoming wet and expanding, or soils drying out and settlement occurring.

Then you ask, chronologically, did any of those events take place prior to the date

that the homeowner said the damage manifested. There might be other reasons for the

cracking or the separation such as wood drying out.

So then you want a chronology of did the builder use kiln dried lumber to construct

the house. Was the lumber exposed to moisture during the construction project?

What was the water content of the wood when it was used in the construction and

what is it today? I think you can see from these two examples why developing a

chronology becomes important. Now I want to give you one more context where a

chronology can really be Dramatically illuminating consider a coverage or bad faith

case The plaintiff insured alleges that the insurer should have undertaken the defense

and Failed to do so Your chronology has the date the defense was tendered you also

have on your chronology the date that the tender was rejected and the reasons why.

Frequently in these situations it'll be a lack of information.

The insurer does not have adequate information to make the coverage determination or

perhaps better stated, the insurer does not have adequate information to show that

there's a potential for coverage that triggers the duty to defend. The insurer will

then argue, well, if the insurer had done rudimentary investigation,

it would have learned of These facts that showed that there was a potential for

coverage. Here your chronology is going to be extremely important. First,

you want to look at what did the insured know? Did the insured know of the facts

that it is claiming the insurer should have found through investigation.

If so, the insured had an obligation to bring those facts to the attention of the

insurer and the insurer should not be responsible for its ignorance of facts that

the insured had but did not disclose. But what if the insured didn't know of them?

The question naturally arises, then, how does the insured know that a reasonable

investigation at the time of the disclaimer would have discovered those facts?

Then you're looking at the source of the facts. Who knew what, when? When were they

learned in the litigation? When did they come to the attention of any party or

expert and when were they disclosed to the insurer. All of those "when" questions

lend themselves to incorporation into a chronology. Then the chronology becomes a

demonstrative exhibit. You can put in front of the court or in front of a jury to

make the case why the insurer was not in bad faith and did not owe a duty to

defend at the time of the disclaimer. I recently used this technique in front of a

jury in a trial involving multiple plaintiffs who alleged they were sickened by an

adulterated food product put into the stream of commerce by my client. The client

had done a voluntary recall of its product at the urging of the FDA.

The plaintiffs in the case wanted to assert that because of the recall and the

FDA's preliminary determination that my client's product was adulterated,

The jury should conclude that these plaintiffs became ill from consuming my client's

product. Here's where the chronology came in. We looked at something called the

epidemiological curve developed by the FDA and the chronology of illnesses allegedly

related to the product. We compared that to the client's shipping records and

established that in more than 60 % of the cases where people became ill,

they were in places where the client's product was not available at the time of the

illness. Therefore, the plaintiff's ad Hock ergo proctor Hock argument which was my

clients must have become sick because they ate

the defendants product was disproven by showing that the defendants product was not

in the market or 60 % of the ill people were. In post trial interviews with the

jury, we found that this chronology and demonstration of the factual relationships on

a timeline was quite persuasive. So I guess a couple of takeaways from this podcast

are that in almost all cases, it's worthwhile to do a chronology that can help you

prove that just because a harm took place after some other event,

that event did not cause it. This can help you win a defense verdict,

it can help you win a declaratory relief and bad faith battle,

and it can help you show a jury Alternate causes that are more likely to have

resulted in the harm the plaintiff alleges than what the plaintiff is asserting

against your client. So remember, ad hoc, ergo -proptor hoc,

is a logical fallacy that can be exposed and defeated. Well,

thanks for tuning into this episode of Coverage Counsel is in. As always,

we appreciate you listening. If you have any topics or issues that you would like

us to cover, please let us know. And before I sign off,

a shout out to Kate Bridal and Josh Gilliland for their help in producing the

podcast, getting it put up on the appropriate platforms.

I really appreciate their help and thank them for all they do to make this podcast

successful. Until next time, this is Bob Sandlender signing off.