On October 5, 2020, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in Seth Doull & Others v. Anna C. Foster, N.P. & Another, (SJC-12921). This case involves 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 main issue for the SJC to decide is whether, in a case involving multiple potential tortfeasors or potential causes of injury, “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.

An amicus brief submitted by the Massachusetts Defense Lawyers Association (“MassDLA”), penned by Martin, Magnuson, McCarthy & Kenney’s Jennifer Creedon and Stephanie Gazda, highlights that the substantial contributing factor test has never been intended as a wholesale replacement for but for causation, but 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). In O’Connor, the SJC defined a substantial contributing cause as “something that makes a difference in the result” and set forth the frequency, proximity and duration test, a touchstone of toxic tort law. 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 factual determination by the factfinder. The best approach to right the ship would be to adopt a “factual cause” of harm standard as provided in Sections 26 and 27 of the Restatement (Third) of Torts. 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 SJC seemed interested in the approach of the Restatement (Third) of Torts as highlighted in the MassDLA’s amicus brief. The Court agreed that O’Connor was good at the time, but courts have since lost their way. The causal sets under the Restatement (Third) of Torts could allow for the factfinder to determine whether a tortfeasor is a factual cause even in instances where the cause was small but necessary.

MMM&K would like to thank Law Clerks William Wehr and Anastasios Kiafoulis for their excellent work on this brief.