On February 26, 2021, the Massachusetts Supreme Judicial Court ruled on the issue of causal determination in Seth Doull & Others v. Anna C. Foster, N.P. & Another (SJC-12921). The SJC’s groundbreaking decision adopted a factual cause of harm standard under the Restatement (Third) of Torts and abandoned the substantial contributing factor test, except in toxic tort cases. An amicus brief penned by MMM&K’s Jennifer Creedon and Stephanie Gazda on behalf of the Massachusetts Defense Lawyers Association (MassDLA) played an integral part in the SJC’s questioning during oral argument and the decision.
The case at bar involved a medical malpractice claim against two medical providers for alleged negligent treatment of the plaintiffs’ decedent with hormone-replacement drugs that caused her to develop pulmonary issues and lead to her premature death. At trial, the jury found both defendants separately and individually negligent but said negligence was not the “sole/but-for” cause of the harm under the trial court’s instruction. The issue on appeal was, in a case involving multiple potential tortfeasors or potential causes of injury, whether “substantial contributing factor” may or must be used in lieu of “but for” in the causation jury instructions and whether the Court should adopt a “factual cause” of harm standard, as provided in Sections 26 and 27 of the Restatement (Third) of Torts.
Based on the SJC’s solicitation of amicus briefs to help answer this question, the MassDLA filed a brief authored by MMM&K’s Jennifer Creedon and Stephanie Gazda, which urged the SJC to adopt a factual cause of harm standard. This would represent a return to concepts central to the law of torts, including the “but for” standard, and provide a comprehensive and objective approach to causation that will ensure consistent application. The brief also highlighted that the substantial contributing factor test has never been intended as a wholesale replacement for “but for” causation. Rather, it is a supplemental tool to help assess causation in a multi-defendant matter as illustrated in O’Connor v. Raymark Industries, Inc., 401 Mass. 586 (1988) (defining a substantial contributing cause as “something that makes a difference in the result”). Since O’Connor, courts have veered off course by relying on “substantial factor” as found in the Restatement (Second) of Torts and have failed to articulate the necessary concepts for causal determination by the factfinder.
In its decision, the SJC agreed that the Restatement (Third) of Torts would allow the factfinder to determine whether a tortfeasor is a factual cause even in instances where the cause was small but necessary. The but-for test would also permit the factfinder to separate the necessary causes from other conduct that, although negligent, did not cause harm. The focus would remain on whether, absent the defendant’s conduct, the harm would still have occurred. In the instant case, the SJC found that the jury instructions by the trial court embraced the Restatement (Third) of Torts and were proper as but-for causation applied under the facts.
The SJC abandoned the substantial contributing factor test in all cases except for toxic tort and asbestos cases. Notably, the SJC indicated in a lengthy footnote that “[i]n an appropriate case, however, we may consider whether to replace the substantial contributing factor test in these cases as well.” The Court acknowledged the variety of approaches taken in toxic tort cases as well as the idiosyncrasies that make them unique with regard to factual causation and therefore, determined that a decision to replace the substantial contributing factor in these cases would benefit from full briefing and argument.
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