MA Changes Causation Standard in Civil Litigation: Toxic and Asbestos Standard Uncertain
For decades, plaintiffs in Massachusetts asbestos cases have used the substantial contributing factor test as a spear to justify suing dozens of defendants in asbestos cases. Due to the confusing language in the case law and jury instructions about substantial contributing factor causation, many plaintiffs’ attorneys argue to judges and jurors that every exposure to asbestos may be considered substantial. That spear, however, may soon be blunted. The Supreme Judicial Court (SJC) in Doull v. Foster held that the “substantial factor test is unnecessarily confusing and [courts must] discontinue its use, even in multiple sufficient cause cases.” Instead, “the traditional but-for factual causation standard is the appropriate standard to be employed in most cases, including those involving multiple alleged causes.” Despite writing at length about how the substantial factor test is an outdated legal standard being misapplied, the court declined to extend its prohibition to “asbestos and other toxic tort cases” because such a case was not before it. However, the court invited a challenge: “[i]n an appropriate case… we may consider whether to replace the substantial contributing factor test in these cases as well.”
Doull was from a medical malpractice case in which a 43-year-old woman died from chronic thromboembolic pulmonary hypertension (CTEPH) complications. The woman’s family, who brought the case, claimed that a nurse practitioner did not inform the decedent that the progesterone cream that the nurse practitioner prescribed could cause blood clots. She also allegedly failed to diagnose the decedent’s CTEPH. During the trial, the judge instructed the jury using the but-for standard for factual causation (i.e., “the Defendant[’s]… conduct was a cause of the Plaintiff’s harm… if the harm would not have occurred… but for the Defendant’s negligence”). The court did not instruct the jury about the substantial contributing factor standard, which the plaintiff argued was required because there were several possible causes and multiple potential tortfeasors. The SJC found no error in the court’s instruction.
Adopting the Restatement (Third) of Tort’s reasoning, which abandoned the substantial factor test, the SJC found that the but-for standard is the superior analytical framework in nearly all tort cases. (even in most multiple cause cases except, for now, in asbestos and other toxic tort cases). The court wrote that the but-for test enables the factfinder to “separate the necessary causes from conduct that may have been negligent but may have had nothing to do with the harm caused.” Moreover, the majority stressed that “there is no requirement that a defendant must be the sole factual cause of a harm.” Instead, “[t]he focus instead remains on whether, in
the absence of a defendant’s conduct, the harm would have still occurred.” The court noted that the Restatement (Third) approach is more straightforward. It allows a jury to excuse a defendant from liability when they determine the defendant’s conduct was merely trivial compared to other alleged causes. A concurrence argued for the court to keep the substantial factor test in all applicable cases because, in the justice’s opinion, there is not a legal reason for the change other than the Restatement (Third)’s change of heart.
However, despite the litany of issues the court enumerated with the substantial contributing factor test, the SJC did not extend its holding to asbestos and other toxic tort cases. The court declined to disturb its decision in “O’Connor v. Raymark Industries, Inc., 401 Mass. 586 (1988)] or the use of the substantial contributing factor instruction in those cases.” Nevertheless, [i]n
an appropriate case, however, [the SJC] may consider whether to replace the substantial contributing factor test in these cases as well.” The SJC noted that a “variety of approaches” in other jurisdictions have adopted different causation standards, and it will withhold its judgment until a “full brief and argument” are before it. Even so, the court stressed that “[o]ur hesitance, however, should not be taken as a continuing endorsement of the substantial factor approach in toxic tort cases…”
Nevertheless, the court’s decision does change jury instructions going forward even in asbestos cases. “In such cases, where there are multiple, simultaneous operating, sufficient causes, the jury does not have to make a but-for causation finding.” This is a departure from prior Massachusetts practice where the jury could decide whether a defendant was the but-for cause and a substantial contributing cause. The SJC prohibited giving these competing instructions because it led to confusion. In their place, the jury “should receive additional instructions on factual [but-for] causation…” in multiple cause and asbestos cases.
Consequently, attorneys defending corporations in the Massachusetts asbestos litigation must wholly reevaluate their defense strategies in light of this monumental decision. Doull presents the opportunity to forge a fairer system based on rationality rather than confounding semantics. Defense attorneys must review the various causation standards existing in other jurisdictions because the SJC has sent a clear message that it is open to adopting a new standard. In addition, defense strategies now must focus on causation with an eye towards abandoning the substantial factor test, while preserving issues under the current outdated rule.
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