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How two hypothetical camp fires changed negligence trials in Massachusetts.

By Gregory J. Fleming, Esq.

The Massachusetts Supreme Judicial Court (“SJC”) reversed decades of precedence concerning negligence claims with multiple alleged causes and has instructed lower courts to charge juries, except in toxic tort and asbestos claims, that they are to use the “but-for” standard when a plaintiff has alleged multiple causes of negligence.  This decision abandons the often confusing substantial factor test, in which a plaintiff must show that the negligent act was a substantial contributing factor in bringing it about and without which the harm would not have occurred, in an attempt to focus juries’ on the factual and legal causes of harm, the former which was believed to be disregarded by juries in their deliberations due to their confusion as to factors they were to consider as part of the substantial factor test.

In Doull vs. Foster, Mass., No. SJC-12921 (Feb. 26, 2021), the estate of a deceased patient brought a medical-malpractice action against a nurse practitioner and her employer alleging that the nurse practitioner prescribed the patient a cream to treat the patient's symptoms which unfortunately caused a bad reaction.  More specifically, the cream caused the patient to develop a pulmonary embolism and chronic thromboembolic pulmonary hypertension (“CTEPH”).  The estate alleged that the nurse practitioner failed to obtain informed consent from the patient to use the cream despite the cream's risks, that the nurse practitioner failed to diagnose the patient's pulmonary embolism, and that the patient died from CTEPH complications.  Following a trial, the jury returned a defense verdict for all defendants. 

The plaintiff appealed the verdict arguing that the judge’s jury instruction was faulty with regard to element of causation.  Specifically, the judge instructed as follows:

“With regard to this issue of causation, the Defendant in question's conduct was
a cause of the Plaintiff's harm, that is Laura Doull's 
harm, if the harm would not
have occurred absent, that is but for the Defendant's negligence. In other
words, if the harm would 
have happened anyway, that Defendant is not liable.”

On appeal, the SJC examined the use of two competing causation standards - the traditional “but-for” causation standard and the alternative “substantial contributing factor” standard - and concluded that the traditional “but-for” factual causation standard is the appropriate standard to be employed in most cases, including those involving multiple alleged causes.  The Court also concluded that the substantial factor test is unnecessarily confusing and its use is to be discontinued, even in multiple sufficient cause cases.

 The SJC followed the guidance in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which states “Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.” Restatement (Third) of Torts: Phys. & Emot. Harm § 26 (2010).  “If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.”  Id. at § 27.

 The example provided by the Restatement was so instructive that the SJC has mandated that it be used a supplemental jury instruction in the cases which present multiple sufficient causes for the alleged negligence.  The new supplemental jury instruction describes a scenario where two individuals start two independent camp fires which engulf a hunting lodge, destroying it.  As either fire alone would have destroyed the lodge, each tortfeasor’s negligence was a factual cause of the destroyed hunting lodge.

 The SJC recognized that plaintiffs would likely feel that a “but-for” test would deprive them of justice if juries are unable to find any one defendant as the cause of their harm.  To alleviate these concerns, the Court reaffirmed that there is no limit on how many factual causes there can be of the alleged harm.  The focus instead remains only on whether, in the absence of a defendant's conduct, the harm would have still occurred.

By eliminating the substantial factor test, the SJC has presented a clear and consistent test on which the issue of negligence will be decided.  With only one test to implement, courts will be more consistent in their jury charges, which in turn, should lead to less jury confusion.  This will also assist attorneys on both sides to be able to better evaluate their cases as they will be able to focus on what facts support but-for causation standard, rather than guessing if the actions of each defendant was a “substantial factor” in the plaintiff’s damages.  Unfortunately, we do not feel that this clarity will lead to more courts granting motions for summary judgment when but-for negligence is not present, and still expect that courts will allow plaintiffs to put their case to a jury whenever negligence has been alleged.  Most importantly, however, it must be noted that if the substantial factor test can be essentially eliminated from the relevant subset of negligence cases, any longstanding legal principal can be subject to change. ♦

HAMEL MARCIN DUNN REARDON & SHEA, PC

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