Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.
|CHAPTER X: ALLOCATION, INFERENCE, BURDENS, AND PRESUMPTIONS|
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D. Civil Presumptions and Rule 301
This case is an example of how one court sought to steer a middle course between the Thayer "bursting bubble" theory and the Morgan "burden shifting" theory. A serious drawback to the Hinds formulation is that it is difficult for court or jury to weigh the effect of a presumption on the one hand against inferences from evidence on the other. The case also summarizes the stage of the debate on the eve of the adoption of the Federal Rules of Evidence.
Answer and Analysis:
There are two possibly applicable common-law presumptions. The presumption in favor of continuing life (until 7 years after a person's unexplained disappearance) and the presumption against suicide may both be involved. Which presumption is the more powerful? In a Federal Court diversity case, the effect of a presumption is controlled by state law. FRE 302. For instance, if Maine law controlled (Matiinicus Island is in Maine), the effect of a presumption is to shift the burden of persuasion. Presumably the jury would be instructed that the plaintiff bears the burden of persuasion on proving the death of Alex Brown, and if the plaintiff failed to convince the jury by a preponderance of his death, the jury should find for the defendant. This presumption would seem to be in harmony with the basic burden of proof on the suit on the policy. Should it be mentioned at all. Would it confuse the jury?
Presumably on the double indemnity portion of the policy, the plaintiff would bear the burden of proof that the death occurred by sudden and accidental means. To the extent that the plaintiff would otherwise have to negative suicide, the presumption against suicide would entitle the plaintiff to an instruction that the burden of proving suicide would be on the defendant.
One wonders how the jury can be expected to keep track of these shifts in the burden of proof by virtue of these presumptions. Perhaps a special verdict would be of some help.
Step 1: Plaintiff offered evidence showing that she was a qualified woman who sought an available position, that the position was left open for several months, and that she was finally rejected in favor of a male. This evidence was sufficient to invoke a presumption of discrimination.
(a) What would have happened if there had
been no presumption and this was all the evidence that the plaintiff had?
Was the evidence offered by the Plaintiff in and of itself a sufficient basis
for finding discrimination, so that the plaintiffs case would survive a motion
for directed verdict by the defendant, or was the evidence offered by the
plaintiff an insufficient basis for a finding of discrimination, so that the
defendant would be entitled to a directed verdict at the close of the plaintiff's
Without the aid of any presumption the plaintiffs evidence is not sufficient. The defendant would be entitled to a directed verdict. The reason is that there are possible nondiscriminatory explanations for why the male was hired in preference to the plaintiff, and no basis in the evidence for eliminating such possible explanations either by assessing the credibility of the witnesses or by making non-arbitrary assessments of the circumstantial evidence.
The plaintiff has offered evidence of facts
which are highly suggestive of discrimination, yet insufficient by themselves
as a basis for finding discrimination. The presumption which is invoked by
proof of these facts, however, alters the procedural situation in a manner
that obliges the defendant to offer an explanation. Proof of the predicate
plus the absence of any explanation by the defendant could provide a sufficient
basis for a finding of discrimination.
(b) Who decides if the predicate for the presumption has been proved, and by what standard?
For purposes of deciding whether the plaintiff can survive a motion for directed verdict the judge decides. The judge should refuse to direct a verdict against the plaintiff if the plaintiff has offered proof sufficient to support a finding of the predicate of the presumption.
For purposes of deciding the ultimate issue, the jury (or factfinder) decides. Specifically, the jury will decide whether the plaintiff has proved the predicate to a preponderance. The consequences that will follow from this decision depend on the instructions that the judge gives, and these depend on whether the defendant has come forward with a nondiscriminatory explanation, as explored further below.
Hypothetical Std 2: Assume (contrary to the facts in Burdine) that the defendant does not come forward with an explanation. What happens then?
The Burdine Court says: "If the trier of fact believes the plaintiffs evidence and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case." That sounds straight-forward enough, but there is room for confusion. There was no jury in Burdine, thus there is a risk that the Court's opinion is not finely discriminating between the functions of judge as factfinder and the judge as lawfinder. Suppose there was a jury. The statement from Burdine suggests that the judge should put to the jurors the question of whether they found to a preponderance that the plaintiff had proved the predicate elements to the presumption, and instruct the jurors that if they so found, then they must (mandatory) find for the plaintiff.
There is a problem with this. The Conference Committee report to
FRE 301 states that a different consequence should follow, one that is
inconsistent with the Burdine Court's dictum that the judge should put the
case to the factfinder under mandatory instructions. The Conference Report
states: "If the adverse party offers no evidence contradicting the presumed
fact, the court will instruct the jury that if it fords the basic facts, it may
presume the existence of the presumed fact." This is clearly a permissive
approach, although no hint is given as to how a jury should go about
deciding whether to "presume" or not.
Actual Step 2: The defendant offered testimony that the Department of Labor wanted better efficiency, that the employees who had been terminated (including the plaintiff) did not work well together, and that the defendant thought that eliminating this problem would improve efficiency.
Was this evidence sufficient to satisfy the defendant's burden of production? Clearly yes. By presenting this evidence the defendant warded off the mandatory instruction (for clarity's sake, assume a formal separation of the lawfinding and factfinding functions). The decision whether the defendant has met his burden of production is made by the judge (as lawfinder). By what standard? The Burdine Court says that the defendant's evidence must raise a genuine issue of fact as to whether the defendant discriminated against the plaintiff.
Does the defendant have any burden of persuasion?
The Court is caught up in the assumption that there is only one. Thus it says,
"The plaintiff retains the burden of persuasion." But a functional analysis
of the process the Court describes shows that the defendant does have _a burden
of persuasion. If, when the case goes to the factfinder, the factfmder concludes
that the plaintiff has proved the predicate elements of the presumption of
discrimination, and concludes further that the defendant's explanation deserves
no credit (is a pretext), then the plaintiff wins. The defendant, then, has
the burden of persuading the factfmder that its nondiscriminatory explanation
is not a pretext. The key question, as we saw in the analysis of bursting
bubble presumptions, is, what happens when the defendant responds to the presumption
by introducing theoretically sufficient but incredible evidence. The answer
under the Burdine approach is that the case will reach the factfinder and
the defendant will lose.
What the Burdine Court succeeded in doing, although the language of the opinion leaves great room for confusion, is to prescribe the use of presumptions in way which does not change the standard of proof (the factfinder must still make an affirmative finding of discrimination), yet which imposes a burden of persuasion on the party disfavored by the presumption which rationalizes the way in which the presumption operates. In effect, the presumption does not change the standard of proof by which the factfinder decides the case, but does shift the assumption about discrimination so that the factfinder approaches the standard of proof from the disfavored party's side. The result is functionally equivalent to allowing a Title VII claim to be proved by proof of the predicate, and creating an affirmative defense on nondiscrimination; the plaintiff has the burden of proving the predicate to a preponderance; the defendant has the burden of proving the affirmative defense to the point of equipoise.
Another way of describing this same functional result is to say that the presumption as described in Burdine operates to create an assumption of discrimination which the defendant bears the burden of displacing, a burden which he can displace by introducing proof persuasive enough to move the factfinder from an assumption of discrimination at least to a state of indecision on the issue of discrimination.
The Burdine Court employed the language of the bursting bubble, but described the functional operation of an allocation-shifter, with the burden imposed on the defendant properly modulated.
The Major Ambiguity- What is a Prima Facie Case?
Lower courts should have recognized after Rurdine that the effect of the operation of a Burdine presumption was to ensure that the plaintiffs case would reach the factfinder, that is, would survive a motion for directed verdict by the defendant regardless of the defendant's response to the burdens imposed upon him by the presumption. The logic of this is that the plaintiffs evidence consists not only of the plaintiffs proof of the suggestive predicate facts but also the evidence of the defendant's response, whatever it is. If the factfinder does not credit the defendant's response, then that is sufficient to allow the plaintiff to win. Whether or not the fact finder credits the defendant's response is a matter to be determined by the factfinder on the merits, not by the judge by directed verdict.
Unfortunately the way in which the Court used the term "prima facie case" gave some commentators and courts the opportunity to argue that once the defendant has rebutted the presumption, the presumption vanishes and the plaintiff may not have sufficient evidence to reach the factf'mder. The Court says that the plaintiff invokes the operation of the presumption by proving a "prima facie case." "Prima facie case" can have two meanings (at least): it could mean that the plaintiff has proved enough to reach the jury, independent of any presumption. This is the way the term "prima facie case" is used in cases in which no presumptions are involved. Or it could mean that the plaintiff has proved enough to invoke the operation of the presumption. This was the way in which the Burdine Court used the term.
The Court made this usage explicit in footnote 7 of the opinion, (edited out of our text (sorry)):
The phrase "prima facie case" not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiffs burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J.Wigmore, Evidence sec. 2494 (3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title VII context we use "prima facie case" in the former sense.
Some courts and commentators have taken the last sentence of this footnote to mean that proof of the predicate facts plus the evidence generated by the operation of the presumption are not necessarily sufficient to carry the plaintiff past a motion for directed verdict. See e.g., Reeves v. General Foods, 682 F.2d 515 (5th Cir. 1982), which cites to and relies on Belton, Burdens of Pleading and Proof in Discrimination Cases. Towards a Theory of Procedural Justice, 34 VAND. L. REV. 1205, 1222 (1981). What the footnote should be taken as meaning is that proof of the predicate facts unaugmented either by the presumption or by the evidence generated by the operation of the presumption would not be sufficient to overcome a motion for directed verdict. The footnote does not purport to say what happens with respect to a directed verdict motion when the defendant augments the plaintiffs evidence by responding to the burden imposed on him by the presumption. The thrust of the opinion is that the case should reach the jury.
As a testing case, assume that the plaintiff
offers proof of the predicate facts thereby invoking the operation of the
presumption. The boss of the defendant organization then takes the stand and
testifies that he fired the plaintiff because she did not work well with others.
Assume that this would be a legally sufficient reason for dismissing her if
it was credited, but that in testifying to it, the boss exuded a lack of credibility.
Perhaps he looked at the jurors and winked when he testified to it.. Neither
plaintiff nor defendant offer any further evidence. Plaintiff does not even
bother to cross-examine the boss. How should the case be resolved?
The defendant has satisfied his burden of production. He has introduced admissible evidence which, if credited, would be legally sufficient. Does plaintiff lose by directed verdict because the presumption has been rebutted and the plaintiff has offered no further evidence? Or does the defendant lose after the case has been submitted to the factfinder because the factfinder is convinced that the defendant's explanation is a pretext?
The functional approach of Burdine strongly suggests that the defendant loses for the latter reason, and the language of Burdine should be interpreted to be consistent with this result. That means that proof of the predicate facts plus the evidence generated by the defendant's response to the presumption is sufficient to carry the case to the factfinder, and that the defendant may lose because the plaintiff can use the defendant's inability to present a persuasive nondiscriminatory explanation as a means to convince the jury that she has been discriminated against.
This case is of great importance in the study of Torts. Its importance to Evidence lies in its use of presumptions to accomplish the generation of a new substantive rule of tort law. The case is an excellent example of an issue-switching presumption, where the issue to which the litigation is switched expresses a new substantive rule of law generated by the court.
The traditional tort law would require a plaintiff to prove that a defendant was the cause in fact of the plaintiffs injury. The starting assumption with respect to the issue would be that the defendant is not the cause, and the plaintiff would then have the burden of showing to a preponderance that the defendant had caused the injury. The DES plaintiffs were unable to make this showing. Likewise, the DES defendants were, for the most part, unable to show that they were not the cause in fact of the plaintiffs injury. All that either could show, in most of the cases, was a circumstantial picture based on market share and market distribution that left great doubt as to any particular plaintiff and defendant.
In this situation, assignment of the burden of proof on the issue becomes decisive. The determinative issue therefore is the criterion for making the assignment. The Sindell court manipulates the assignment by means of a presumption. The determinative question therefore is, what is the predicate which must be proved to invoke the presumption?
Sindell makes it clearer than did previous cases that proof of the predicate need not be thought of as a rational way of proving the conclusion; presumptions can also be thought of as providing an alternate ground of decision when there is unresolvable doubt about the primary ground. The primary ground in Sindell is cause in fact. If either party could resolve that issue in its favor, then that issue would be decisive. In the absence of resolution either way, the Sindell court refuses simply to say the plaintiff loses. Instead the court generates an alternate, secondary ground of decision, namely proof of manufacture with damages proportioned to market share.
The rationality of this presumption should not be judged by asking whether it is rational to infer from proof of the predicate that the defendant was the cause in fact of the plaintiffs injury. The rationality of the presumption should not be judged by epistemological standards, but rather by the broader standards of policy by which any substantive rule of law is evaluated: Is it rational to require a company which manufactured a dangerous drug to pay damages in proportion to its market share to a plaintiff who can prove that the drug injured her but who cannot, for understandable reasons, prove which company manufactured the drug? This is a question of substantive justification theory, not of the rationality of inferences. Compare Problem - Last Carrier, above.
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