During oral arguments on January 4, 2023 in a conspiracy action for which an amicus brief authored by MMM&K’s Jennifer Creedon and Lauren Mankowski was submitted on behalf of the Massachusetts Defense Lawyers Association (“MassDLA”), the Supreme Judicial Court appeared willing to further explicitly limit the use of substantial contributing factor causation in civil cases and clarify that but-for causation is the necessary standard.
The case, Greene, et al. v. Philip Morris USA, Inc., involves two issues of great importance to the Massachusetts defense bar: first, whether a pair of statutes which set the rate for pre- and post- judgment interest at 12% in tort actions is a violation of constitutional due process, and second, whether the trial judge erred in not instructing the jury on but-for causation on plaintiffs’ conspiracy claims such that a new trial is warranted. These issues arose in the context of a plaintiff alleging her lung cancer was caused by a conspiracy perpetuated by Philip Morris that its light, low-tar cigarettes were not as hazardous as regular cigarettes. In the trial court, the jury awarded a verdict for plaintiff on the conspiracy count but found in favor of Philip Morris on plaintiff’s negligence and warranty counts; accordingly, as described below, the Court’s ultimate holding may be limited to conspiracy actions.
Based on the SJC’s solicitation of amicus briefs in September 2022 to help answer these questions, MassDLA filed a brief authored by MMM&K’s Jennifer Creedon and Lauren Mankowski and Cetrulo LLP’s Kyle Bjornlund. MassDLA’s brief argued that the 12% pre- and post-judgment interest rate in Massachusetts, unmodified in over 40 years, is a vestige of decades-old policy that no longer reflects modern realities and is an outlier among similarly situated jurisdictions which results in disparate, unfair outcomes for litigants of the Commonwealth. The brief further argued that, following the SJC’s seminal decision in Doull v. Foster that re-established the broad application of but-for as the proper causation standard, the trial court should have instructed the jury on this standard for plaintiff’s conspiracy claim. MMM&K’s Jennifer Creedon also authored MassDLA’s amicus brief in Doull, which was favorably cited and relied on by the Court in 2021. The Greene brief argued that substantial contributing factor, the causation instruction disfavored as a misued and confusing standard in Doull but given to the jury by the trial judge, should never be applied in intentional torts such as conspiracy claims. MassDLA’s amicus brief encouraged the SJC to apply but-for causation uniformly across a broad range of causes of action in
accordance with the Restatement (Third) of Torts to promote consistency and the interests of justice for litigants in the Commonwealth.
There were a great deal of questions from the bench over the course of oral argument in Greene. Notably, Justice Kafker referred to the substantial contributing factor language as “not helpful” and multiple justices appeared to dislike this standard. The justices also noticed how the Restatement (Third) of Torts really disfavors substantial contributing factor as a confusing standard and may ultimately hold that conspiracy actions also require but-for causation. Overall, although the Court may try to save the plaintiff’s verdict by holding the trial judge did not commit reversible error either due to potential waiver of the jury instruction issue by Philip Morris or finding that the instruction was not prejudicial because of the arguable presence some but-for-related language, we anticipate the SJC’s decision will reiterate for future cases that substantial contributing factor is inappropriate, especially in conspiracy cases. Lastly, the justices appeared sympathetic to the matter of pre- and post-judgment interest (especially as Philip Morris counsel explained they would currently be paying over $16 million in interest on a $2.5 million economic verdict) but are unlikely to hold the statutes unconstitutional; rather, the SJC’s opinion may prod the Massachusetts’ legislature to revisit the interest rate in the near future to resolve this issue.
MMM&K would like to thank law clerk Dominic Mazza for his immense assistance in the preparation of this amicus brief. Dominic Mazza, who is currently finishing his third year at Boston College Law School, played a critical role in researching and drafting the brief.
A copy of MassDLA’s amicus brief in Greene can be found here.
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