Goodbye Substantial Contributing Factor: SJC Redefines the Massachusetts Causation Standard in Multiple Tortfeasor Cases

Creedon_Jresizedbtfitz_20140915_0129_Mby Jennifer A. Creedon and Stephanie M. Gazda

Legal Analysis 

In Doull v. Foster, 487 Mass. 1 (2021) (“Doull”), the Supreme Judicial Court (“SJC”) adopted a but-for factual causation standard as set forth in the Restatement (Third) of Torts (2010) and abandoned the substantial contributing factor test in matters involving multiple tortfeasors or multiple causes, except for toxic tort cases.

Background

Doull involved a medical malpractice claim against two medical providers for alleged negligent treatment of the Plaintiffs’ decedent. Dr. Richard Miller and Nurse Practitioner Ann Foster treated Laura Doull from 2008 to 2011. Foster provided Doull with progesterone cream in 2008 to treat perimenopause-related symptoms, which Doull used through the spring of 2011. Between March and May 2011, Doull complained of shortness of breath on three separate occasions, but Foster diagnosed it a symptom of Doull’s allergies and history of asthma. Doull suffered a stroke in May 2011 and another doctor diagnosed her with a pulmonary embolism and chronic thromboembolic pulmonary hypertension (CTEPH), a rare disease impacting the pulmonary artery and heart. Doull, 43 years old, died in 2015 from complications arising from CTEPH. Plaintiffs filed a complaint against Miller and Foster, alleging failure to obtain informed consent as to the potential risks of pulmonary emboli associated with the progesterone cream treatment and failure to properly diagnose and treat Doull for her symptoms of pulmonary emboli, leading to her premature death.

After the close of evidence at trial, the trial judge heard arguments concerning the disputed jury instructions. Plaintiffs argued for the application of the substantial contributing factor test. Under this test, to be found legally responsible for Doull’s injuries, the Defendants’ negligence need only be a substantial contributing factor in bringing about those injuries.[1] Defendants, on the other hand, sought a but-for causation instruction. Under this standard, even if they were found to be negligent, the jury would also have to find that Doull’s injuries would not have occurred but for their negligence. The trial court agreed that the but-for causation standard was the appropriate instruction.

The jury found that the Defendants did not fail to acquire informed consent from Doull regarding the progesterone cream. While the jury did find that Foster negligently failed to diagnose Doull’s pulmonary embolism and Miller failed to properly supervise Foster, it did not find this negligence was the “sole/but-for” cause of harm suffered by Doull under the trial court’s instruction.  

The SJC’s Decision

The main issues for the SJC to decide were, in a case involving multiple potential tortfeasors or potential causes of injury, whether the substantial contributing factor test may or must be used in lieu of the but-for standard 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.

The SJC held that the but-for standard is the proper standard in most negligence cases, as it allows the factfinder to separate the necessary causes from other conduct that, although negligent, did not cause harm.[2] Under the Restatement (Third) of Torts, the factfinder can determine whether a tortfeasor is a factual cause even in instances where the cause was small but necessary.[3] The but-for standard does not require that a defendant must be the sole factual cause of harm.[4] Rather, it keeps the focus on whether the harm would still have occurred absent the defendant’s conduct.[5] Where multiple causes are alleged, which is often the case, it is appropriate to instruct a jury that there can be more than one factual cause of harm.[6] By recognizing that multiple causes can exist, the but-for standard precludes the need for substantial contributing factor in the causation analysis.[7]

In this case, the SJC found that the trial court’s but-for instruction to the jury was proper. The jury ultimately determined that the Defendants did not cause Doull’s injuries, despite breaching their duty as medical providers by failing to diagnose the pulmonary embolism, because the evidence showed that the demonstrated harm would have resulted even in the absence of their negligence. Thus, no causal connection existed between the Defendants’ conduct and Doull’s harm.[8] 

Despite being accepted and used by Massachusetts courts, the SJC observed that not only does the substantial contributing factor test create confusion as it is both too strict and too lenient, it also invites the factfinder to skip the factual causation inquiry by deciding the negligent conduct is substantial without determining whether it was even the cause of the harm. [9] Furthermore, it inserts a high degree of subjectivity as to what is substantial.[10]

Although the SJC chose not to extend its decision to toxic tort cases, the Court indicated in a lengthy footnote that it would reconsider the substantial contributing factor test in an appropriate toxic tort case in the future.[11] The SJC acknowledged that, because of the unique features of toxic tort cases, including the number of defendants involved, latency period of the diseases, and exposure from multiple sources, there might be difficulties in using the but-for standard in such cases. Additionally, there might be factual and scientific limitations on a plaintiff’s ability to establish the requisite causal connection between the harm and an individual defendant. 

Concurring in the judgment, Justice Lowy, joined by Justice Gaziano, agreed with the outcome of the case. Nonetheless, the concurrence criticized the majority for abandoning decades of precedent to alleviate confusion that does not exist, arguing that the substantial contributing factor test usefully directs the factfinder’s attention to the conduct of the parties in determining legal responsibility.[12] While the but-for test looks at what might have been and whether the harm would have occurred but for a defendant’s conduct, the substantial contributing factor test looks at what actually happened and whether a defendant’s conduct played a role in the result.[13] 

Conclusion

Given that the substantial contributing factor test has been used for over 100 years, Doull represents a significant change in Massachusetts tort law. The SJC saw an opportunity to untangle complex causal determinations by eliminating the substantial contributing factor test. Prior to Doull, a court could utilize a jury instruction that encompassed a substantial contributing factor test in lieu of a “but for” test in a multiple tortfeasor case. However, the substantial contributing factor test was never intended to be a wholesale replacement of but-for causation. In this way, Doull represents a return to concepts central to tort law, including the but-for standard. The decision marks an effort by the SJC to have the trial courts give consistent instructions on causation standards, and for the factfinder to determine whether a defendant’s conduct was a cause of the plaintiff’s harm. 

[1] See O’Connor v. Raymark Industries, Inc., 401 Mass. 586, 589 (1988). O’Connor defined the core principles of causation, including substantial contributing factor. Id. at 591-92. The trial court instructed the jury to find whether the plaintiff was exposed to asbestos from the defendant’s product, and if so, determine whether such exposure substantially contributed to the cause of his mesothelioma. Id. at 588-89. The trial court noted that “[i]t doesn’t have to be the only cause, but it has to be a substantial contributing cause. … It means something that makes a difference in the result.” Id. at 589. The jury found that while the plaintiff was exposed to asbestos from the product, such exposure did not substantially contribute to the cause of his mesothelioma. Id. at 587. On appeal, the SJC found that by defining a substantial contributing factor as “something that makes a difference in the result,” i.e., a but-for cause of the plaintiff’s harm, this implied that “the plaintiff had the burden of proving that the defendant’s product contributed in fact” to the eventual outcome “in a legally cognizable manner.” Id. at 592. 

[2] Doull v. Foster, 487 Mass. 1, 10 (2021). 

[3] Section 26 of the Restatement (Third) of Torts: Physical and Emotion Harm (2010) states that negligent conduct must be a factual cause of harm, meaning the harm would not have occurred absent the conduct, in order for one to be held liable. Multiple causes are addressed in Section 27, which provides that “each act is regarded as a factual cause of the harm.” Comment c to Section 27 further explains that if a defendant’s conduct was fully capable of causing the harm, then they cannot escape liability merely because of the existence of another sufficient cause.

[4] Doull, 487 Mass. at 12, citing Restatement (Third) of Torts, § 26 cmt c. 

[5] Id. at 12-13.

[6] Id. at 13, n.13. The SJC also refers to the concept of “causal sets” introduced in the Restatement (Third) of Torts, Section 26, cmt. c, which are defined as “the group of actions or conditions that were necessary to bring about the harm.” Id. at 13, n.14. Where the factual harm is an aggregate of multiple causes, the Restatement suggests that it is a causal set. Id.

[7] Id. at 13.

[8] Id. at 11-12.

[9] Id. at 15. 

[10] Id.

[11] Id. at 17, n.22.

[12] Id. at 25, 27. 

[13] Id. at 26-27. 

Jennifer A. Creedon is a Partner at Martin, Magnuson, McCarthy & Kenney. Her practice encompasses a wide variety of products liability and business litigation matters. Jennifer authored an amicus brief in Doull v. Foster on behalf of the Massachusetts Defense Lawyers Association (MassDLA).

Stephanie M. Gazda is an associate attorney at Martin, Magnuson, McCarthy & Kenney. Stephanie focuses her practice on toxic tort, products liability, and general liability matters.


Reid v. City of Boston: Extending the Massachusetts Tort Claims Act’s Interpretive Complexity

by Andrew Gambaccini

Case Focus

The Legislature enacted the Massachusetts Tort Claims Act (“MTCA”), G.L. c. 258, §§ 1 et seq., to replace a crazy quilt of judicially created exceptions to governmental immunity and provide a “comprehensive and uniform regime of tort liability for public employers.” Lafayette Place Associates v. Boston Redevelopment Auth., 427 Mass. 509, 534 (1998). Since its initial enactment, what has developed is a further set of immunity principles, exceptions to those principles, and exceptions to the exceptions to the principles that has led to uncertainty for courts and practitioners, which continues with the decision in Reid v. City of Boston, 95 Mass. App. Ct. 591, rev. denied, 483 Mass. 1102 (2019).

The Evolution of Governmental Immunity in Massachusetts

Historically, the Commonwealth and its political subdivisions enjoyed broad governmental immunity protections based upon common law principles. See Cormier v. City of Lynn, 479 Mass. 35, 37-38 (2018) (citations omitted). Over time, a convoluted landscape of judicial exceptions to governmental immunity developed, triggering a 1973 request from the SJC that the Legislature create a statutory scheme authoritatively detailing the contours of governmental immunity. See Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-21 (1973). After a few years of legislative inaction, in 1977 the SJC made its intentions clear:  it would abrogate governmental immunity following the 1978 legislative session if the Legislature did not take definitive action. See Whitney v. Worcester, 373 Mass. 208, 210 (1977).

The MTCA followed, allowing for limited governmental tort liability as well as setting out the procedures through which claims were to be presented and pursued. The statutory scheme provides generally that public employers are liable for the negligent or wrongful acts or omissions of public employees acting within their scope of employment, while public employees are shielded from personal liability for negligent conduct. G.L. c. 258, § 2. At the same time, several statutory exceptions to the general waiver of governmental immunity were created. See G.L. c. 258, § 10.

It was not long before case nuances again created interpretive difficulties. In 1982, the SJC applied the “public duty rule” to protect governmental units from liability unless a plaintiff demonstrated that a duty breached was owed to that plaintiff, and not simply to the public at large. See Dinsky v. Framingham, 386 Mass. 801 (1982). Within a short time, the SJC endorsed a “special relationship” exception to the public duty rule, permitting governmental liability where a governmental actor reasonably could foresee both an expectation to act to protect a plaintiff and the injury caused by failing to do so. See Irwin v. Ware, 392 Mass. 745 (1984). When subsequent judicial gloss through the “public duty-special relationship dichotomy” failed to produce “a rule of predictable application[,]” the SJC announced its intention to abolish the public duty rule altogether. Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993) (Liacos, C.J. concurring); see also 414 Mass. at 514-15 (Wilkins, Abrams, J. concurring) and 523-25 (Greaney, J. concurring). The Legislature responded by amending the MTCA, most notably by adding six new § 10 exceptions, (e) through (j), to the general waiver of governmental immunity,modification that has done little to diminish the vexing complexities of governmental liability and immunity.

Reid v. City of Boston

Reid features the latest judicial foray into two of the knottiest statutory exceptions concerning governmental immunity, §§ 10 (h) and 10 (j). Plaintiff Reid received a call from her sister, during which the sister was heard asking someone to stop following her and why that person’s hands were behind his back. Knowing her sister had a troubled relationship with her boyfriend, Reid drove to her sister’s home, where she saw her sister’s boyfriend, Cummings. Reid engaged him in a conversation that was neither heated nor worrisome for Reid. As they spoke, Reid’s sister called 911 and reported that Cummings had threatened to kill her.

Three Boston police officers responded and came upon Reid and Cummings. The officers perceived the two to be speaking calmly, noted no injuries and saw no indication of either being armed, something both Reid and Cummings denied. As the inquiry continued, one officer  approached Cummings from behind, suddenly grabbed him and reached for his waist, intending to frisk Cummings for weapons. Cummings pushed the officer away, drew a firearm from his waistband and opened fire. The officers returned fire. Cummings was killed, one officer was shot in the leg and Reid also was shot in the leg by Cummings.

Reid sued the officers and the City. The Superior Court dismissed the claims against the officers, but the negligence claim against City proceeded to trial. Reid claimed that the attempt to frisk Cummings created a harm that otherwise did not exist, escalating a controlled encounter into a shootout, and that such negligence caused her injury. By special verdict form, the jury found the City liable, concluding the police pre-shooting negligence was a substantial contributing factor in causing Reid’s injury. The City filed a motion for judgment notwithstanding the verdict, arguing that it was immune pursuant both to G.L. c. 258, § 10 (h), which, among other things, immunizes municipalities from claims based upon failure to provide police protection, and § 10 (j), which, in part, forecloses claims against a governmental agency based upon a failure to prevent violence by a third party not originally caused by a government actor. The Superior Court denied the motion and the City appealed.

The Appeals Court affirmed the denial of the motion, turning away both of the City’s § 10 arguments. As to immunity for failure to provide police protection under § 10 (h), the tip of the City’s spear was Ariel v. Kingston, 69 Mass. App. Ct. 290 (2007). Ariel involved a plaintiff who was a passenger in a motor vehicle approaching an intersection where police officers were directing traffic in the vicinity of an accident. Proceeding with a green light, the driver of the plaintiff’s vehicle entered the intersection while contemporaneously an officer waved, against a red light, another vehicle into the intersection, leading to a collision. The Ariel Court determined that the town was immune pursuant to § 10 (h) because controlling traffic was a form of police protection to the public.

Analyzing the § 10 (h) exception in Reid, the Appeals Court stated that, while § 10 (h) “shields municipalities from claims where police officers negligently failed to prevent harm posed by third parties[,]” Reid’s “successful theory of liability was not that the police officers failed to protect her from a threat, but rather that the officer’s affirmative conduct created a danger that did not previously exist.” Reid distinguished Ariel by noting the officers directing traffic were providing police assistance to mitigate a dangerous condition while, in Reid, the officers encountered a calm situation and it only was police action that created the danger.

Concerning immunity for the failure to prevent violence by third parties not originally caused by government actors under § 10 (j), Reid avoided the intensely problematic determination of whether the officers’ actions “originally caused” Reid’s injury, instead drawing on a statutory exception to this immunity. Specifically, the Appeals Court found that subsection § 10 (j) (2)’s exception to immunity applied because the officer’s intervention had “place[d] the victim in a worse position than [s]he was in before the intervention[.]” In broad stroke, Reid concluded that the City could be liable because its officer had engaged in an “affirmative act” that contributed materially to create the danger from which the plaintiff sustained injury.

It long has been difficult to chart a predictable course through the statutory and judicial landscape of governmental immunity. Reid’s interpretation of § 10 (h) adds another layer of complexity to this area of law. While Ariel involved an officer engaging in the affirmative act of waving a car into a police-controlled intersection, there was no municipal liability in that case because the circumstance was “dangerous” however municipal liability existed in Reid because a police response to a 911 call featuring an allegation of domestic assault somehow took place in “calm” conditions. Further, because Reid passed on its opportunity to clarify §10 (j), including, for example, a discussion of factors relevant to determining whether the officers’ actions were the original cause of injury, §10 (j) remains a morass of cascading exceptions to the MTCA’s general waiver of immunity.

Cummings was armed and prepared to shoot. If he had fired before any attempt at a frisk, there seems little doubt that the City could not have been found liable. That Cummings made his choice to shoot after an officer tried to frisk him for purposes of weapon detection and disarmament rendered the City liable for Cummings’ shooting of Reid. In the last analysis, Reid’s interpretation of §§ 10 (h) and 10 (j) leaves the principles of governmental immunity as it found them – a complex, nuanced and often confusing “process of defining the limits of governmental immunity through case by case adjudication.” Whitney, 373 Mass. at 209-10.

Andrew Gambaccini is an associate at Reardon, Joyce & Akerson, P.C., where he focuses his practice in civil rights and the defense of law enforcement officers.