Doull v. Foster: Massachusetts Supreme Judicial Court Abandons Substantial Contributing Factor Test in Standard Tort Cases
Nora Saunders[i]
A long-established requirement of a successful negligence claim in Massachusetts is a finding of sufficient causation between the allegedly negligent act and the injury.[ii] However, the proper standard used to find adequate causation in Massachusetts has been historically unsettled.[iii] The Massachusetts Supreme Judicial Court (SJC), in Doull v. Foster, attempted to clear the air by essentially wiping out the substantial contributing factor standard—a standard that has been regularly employed in the Commonwealth for decades—for strictly a but-for causation standard, even in cases involving multiple potential causes of harm.[iv] The SJC abandoned decades of precedent, including its prior express endorsement of the substantial contributing factor test.[v] The decision to discontinue the use of the substantial contributing factor test for the but-for test is a seismic shift within tort litigation because these two causation standards turn on very distinct and unique principles—one on necessity, and one on meaningful conduct.
The substantial contributing factor test means a defendant is liable if their actions were a substantial contributing cause of the injury.[vi] The question presented to juries under this standard is usually whether a defendant’s conduct meaningfully contributed to the cause of the harm, and not if their conduct was the necessary cause of the harm.[vii] Historically, this standard has been applied in cases involving multiple potential tortfeasors, multiple sufficient causes of harm, and toxic tort/asbestos cases. Prior to Doull, this test was especially useful in cases involving multiple potential tortfeasors because it may be impossible to determine that any individual defendant’s conduct was a but-for cause of the harm, even though it may be shown that the defendants, in the aggregate, caused the harm.[viii]
Unlike the substantial contributing factor test—where a defendant’s conduct must simply make a “substantial” difference in the result—the but-for test is one of necessity.[ix] The but-for test heightens a plaintiff’s burden of proof by requiring a finding that the defendant’s conduct was necessary to bringing about the harm.[x] The questions becomes whether, absent the defendants conduct, the harm still would have occurred.[xi] As a result, the defendant’s conduct cannot simply have meaningfully contributed to the harm; rather, the conduct must be the necessary cause of the harm—without that conduct, the harm would not have occurred.
In Doull, the SJC held that the but-for standard is the appropriate causation standard to be used in the majority of tort cases going forward.[xii] In 2008, Laura Doull was seen by nurse practitioner, Anna C. Foster, who prescribed her a progesterone cream for perimenopause related symptoms.[xiii] After continuously using the cream for several years, Doull presented to Nurse Foster on three separate occasions in the spring of 2011 with complaints of shortness of breath, but was not examined.[xiv] In May 2011, Doull suffered a seizure-like event and was diagnosed with pulmonary embolism and chronic thromboembolic pulmonary hypertension which ultimately caused her untimely death in 2015.[xv]
Prior to her death, Doull and her family filed a medical malpractice action against Nurse Foster and the owner of her medical practice, alleging failure to obtain informed consent as to the potential risks of blood clots associated with the progesterone cream and failure to properly diagnose and treat Doull for her symptoms of pulmonary embolism.[xvi] At the close of evidence, and after hearing arguments over disputed jury instructions, the trial judge instructed the jury using a but-for causation standard, rather than the substantial contributing factor test as precedent suggested.[xvii] The jury found that the defendants were negligent in failing to diagnose the pulmonary embolism; however, her negligence was not the but-for cause of Doull’s death.[xviii] The plaintiffs appealed, arguing the substantial factor test should have been the causation standard instructed to the jury.[xix]
On appeal, the SJC considered whether, in a case involving multiple potential causes of harm, the substantial contributing factor test may be used in lieu of the traditional but-for standard. In a monumental holding, the SJC upheld the use of the but-for instruction by the trial judge and eliminated use of the substantial contributing factor test in like cases going forward.[xx] The decision rested on several primary bases.
First, the SJC noted that historically, Massachusetts cases that employed the substantial contributing factor test relied on language within prior Restatements as the source of the standard.[xxi] Given the Third Restatement’s own recent criticism and rejection of the standard, the SJC believed there was good reason to discontinue its use.[xxii] The court characterized the substantial contributing factor test as unnecessarily confusing and resulted in a standard that was both too strict and too lenient.[xxiii] Second, the SJC opined that the confusion produced by the substantial contributing factor test had swallowed the objective of the traditional but-for test—to only hold defendants liable for harms that are actually caused by their negligence and not somehow indirectly related to it.[xxiv] Specifically, the SJC reasoned that employment of the substantial contributing factor test without a but-for causation instruction invites the jury to skip a factual causation inquiry and impose liability on someone whose negligence lacks the requisite causal effect.[xxv] In support of this contention, the SJC wrote that “a jury presented with negligence that is ‘substantial’ may decide to impose liability without coming to terms with whether the negligence was even a cause of the harm.”[xxvi]
Adopting the Restatement Third’s approach, the SJC found that the but-for test resolves the issues presented by the substantial contributing factor test and 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.”[xxvii] Despite the catalogue of issues presented by the substantial contributing factor test enumerated in Doull, the SJC acknowledged the but-for test’s inappropriateness in the context of rare toxic tort cases, and declined to address its application.[xxviii] Resultantly, the court left the door open as to whether the substantial contributing factor test would still survive in toxic tort cases, but was sure to state that their hesitation “should not be taken as a continuing endorsement of the substantial factor approach in toxic tort cases.”[xxix] Because the court welcomed a challenge to the substantial contributing factor standard within toxic tort cases, it seems likely that the test is fast approaching its last act.
Although Doull was only a medical malpractice action, the SJC’s elimination of the substantial contributing factor test reaches far beyond the context of medical malpractice. In the majority of tort cases, the significant impact that electing the but-for test over the substantial factor test will have on verdicts to come is incontestable, and the jury’s verdict in Doull is demonstrative of such an effect.[xxx] In Doull the jury found Nurse Foster to be negligent, but not the but-for cause of Doull’s injury.[xxxi] Importantly, there was evidence to indicate that even if Nurse Foster had diagnosed the pulmonary embolism during Doull’s three visits, it would not have changed the outcome of Doull’s injury.[xxxii] Therefore, it is likely that the jury concluded Nurse Foster’s negligent failure to examine Doull was not the necessary cause that resulted in the harm. While entirely speculative, if instructed under the substantial contributing factor standard, it is not unreasonable to assume that the jury could have found Nurse Foster to be a substantial contributing factor of the injury because she prescribed the cream, failed to warn of its risks, and failed to exam Doull’s shortness of breath.
Advocates of the plaintiff’s bar in Massachusetts oppose the SJC’s holding in Doull, on the grounds that the test is firmly rooted in Massachusetts law, dating back to the turn of the twentieth century.[xxxiii] In an amicus brief filed by the Massachusetts Academy of Trial Attorneys, the Academy criticized the argument that the substantial contributing factor test has created confusion and loosened legal standards of causation, reasoning that neither the defendants nor the Massachusetts Defense Lawyers Association were able to cite a case in the Commonwealth to support such an argument.[xxxiv] Justice Lowy, writing for the concurrence, agreed, and questioned why the court suddenly engaged in an about-face and attempted to fix something that was not broken.[xxxv] Justice Lowy wrote: “Abandoning the substantial contributing factor instruction in circumstances where there is more than one legal cause of an injury will . . . inure to the detriment of plaintiffs with legitimate causes of action while not clarifying the existing law of causation.”[xxxvi] After the opinion was issued, plaintiff’s attorney Krzysztof Sobczak commented on how such a decision is detrimental to plaintiffs, stating “It makes it possible for defendants who are clearly negligent to avoid legal responsibility because they may not be the sole but-for cause of [injury].”[xxxvii]
As expected, when the defense bar discussed the SJC’s decision in Doull, the pendulum swung far in the opposite direction. Troy A. Weigand, who represented the defendants on appeal, called the substantial contributing factor test “problematic” because “specific conduct is either a cause in fact or it is not and is thus an all or nothing proposition. It is not evaluative, and it is not one of degree.”[xxxviii] In their amicus brief, the Massachusetts Defense Lawyers Association labeled the substantially contributing factor test as one “devoid of any objective standard or constant metric” which “unnecessarily imperils factfinder neutrality and subjects litigation to problematic uncertainty.”[xxxix]
The stark divide as to whether the SJC’s holding in Doull was appropriate—not only between plaintiff and defense attorneys, but also between the majority and concurrence—demonstrates how tremendous of an effect this opinion will have in tort cases in the Commonwealth. Although yet to be fully appreciated, the decision is likely to drastically change the outcome of verdicts and influence how many cases are actually brought to trial.[xl] Furthermore, although its effect on toxic tort cases is yet to be seen, litigators in that realm are surely preparing to engage in that battle soon. Moreover, the reasoning employed by the SJC as to why the substantial contributing factor test should be eliminated is likely to be used by litigants in other states, which could result in a nationwide erasure of a causation test that has been applied for over a century.
[i] Nora Saunders is an Articles Editor for the Suffolk University Law Review and J.D. Candidate in the Class of 2022.
[ii] See Wainwright v. Jackson, 195 N.E. 896, 897 (Mass. 1935) (noting negligent conduct only when causally connected); Glidden v. Maglio, 722 N.E.2d 971, 974 (Mass. 2000) (finding causation “an essential element” of proof of negligence).
[iii] See Doull v. Foster, 163 N.E.3d 976, 979 (Mass. 2021) (noting causation continually contested concept in tort law).
[iv] See id. at 979-80 (holding “but-for” causation test proper standard in most tort cases). In Doull, the SJC expressly stated that “we conclude that a but-for standard, rather than a substantial factor standard, is the appropriate standard for factual causation in negligence cases involving multiple alleged causes of the harm.” Id.
[v] See, e.g., Matsuyama v. Birnbaum, 890 N.E.2d 819, 842 (Mass. 2008) (employing substantial contributing factor test to case with multiple causes); Bernier v. Boston Edison Co., 403 N.E.2d 391, 400 (Mass. 1980) (holding negligence of other parties irrelevant to defendant’s liability if defendant’s negligence provided substantial factor); Tritsch v. Boston Edison Co., 293 N.E.2d 264, 266 (Mass. 1973) (holding jury could properly conclude defendant’s negligence substantial factor in bringing about plaintiff’s harm). In Matsuyama, the SJC went so far as to say that the substantial contributing factor test was “useful in cases in which damage has multiple causes, including but not limited to cases with multiple tortfeasors,” in now direct contradiction with its holding in Doull. Matsuyama, 890 N.E.2d at 842.
[vi] See, e.g., O’Connor v. Raymark Industries, Inc., 518 N.E.2d 510, 510-13 (Mass. 1988) (delineating proper jury instructions under substantial contributing factor test). Notably, there can be multiple substantial contributing causes of an injury. See id.
[vii] Compare O’Connor v. Raymark Industries, Inc., 518 N.E.2d 510, 510-13 (Mass. 1988) (describing basic principles of substantial contributing factor test), with Doull v. Foster, 163 N.E.3d 976, 983 (Mass. 2021) (articulating but-for causation).
[viii] See Matsuyama, 890 N.E.2d at 842 (defending use of substantial contributing factor test).
[ix] See Doull, 163 N.E.3d at 983 (describing necessity analysis inherent in but-for test).
[x] Id.
[xi] Id. at 987.
[xii] See id. at 979-80 (abandoning substantial contributing factor instruction in standard tort cases).
[xiii] Doull, 163 N.E.3d at 980 (chronicling factual background). Nurse Foster did not inform Doull of any blood clot related risks associated with the progesterone cream. Id.
[xiv] See id.
[xv] See id. at 981.
[xvi] See Doull, 163 N.E.3d at 980-81 (recounting procedural history). After her death, Doull’s family continued to prosecute the case and added a wrongful death claim. Id. at 981 n.7.
[xvii] See id. at 982 (illustrating basis for appeal).
[xviii] See id. at 981 (explaining nuances of jury’s verdict).
[xix] See Doull, 163 N.E.3d at 982 (specifying plaintiff’s reasoning for appeal).
[xx] See id. at 979-80.
[xxi] See id. at 992 (labeling Restatements the source of substantial contributing factor standard). See, e.g., Quinby v. Boston & M.R.R., 61 N.E.2d 853, 858 (Mass. 1945) (citing Restatement in support of substantial contributing factor analysis).
[xxii] See Doull, 163 N.E.3d at 992 (justifying elimination of substantial contributing factor standard); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26, comment j (2010) (criticizing substantial contributing factor test for uselessness in causation inquiry).
[xxiii] See Doull, 163 N.E.3d at 980 and 988. Notably, as the concurrence points out, when the court discusses the confusion that the substantial contributing factor test has allegedly generated, citations to Massachusetts cases drop off. See id. at 999 (Lowy, J., concurring) (expressing concerns in majority’s reasoning).
[xxiv] See Doull, 163 N.E.3d at 988-89 (noting substantial factor test collapses concepts of factual causation).
[xxv] See id. (illustrating risks posed by substantial contributing factor standard on jury’s inquiry).
[xxvi] See id. (highlighting prejudice inherent within substantial contributing factor test).
[xxvii] See id. at 986 (justifying adoption of but-for test).
[xxviii] See Doull, 163 N.E.3d at 984-85. In toxic tort cases, it may be impossible to determine which exact exposures to substances were necessary to cause the harm, consequently, the but-for standard would not work in such cases. Id.
[xxix] Id. at 990 n.22 (suggesting use of substantial contributing factor test in toxic tort cases ripe for debate).
[xxx] See Doull, 163 N.E.3d. at 997-98 (Lowy, J., concurring) (noting standards differ in how jurors focus and devote attention). Justice Lowy, in his concurrence, argued that the substantial contributing factor test appropriately focuses the juror’s attention directly on the conduct of the parties, whereas the but-for test encourages jurors to speculate about alternative realities. Id. Jurors with differing focuses are bound to deduce alternate conclusions.
[xxxi] See id. at 992 (majority opinion) (articulating jury’s verdict).
[xxxii] See Doull, 163 N.E.3d at 981 (describing defense expert testimony).
[xxxiii] See Brief for Massachusetts Academy of Trial Attorneys as Amici Curiae, Doull v. Foster, 163 N.E.3d 976 (Mass. 2021) (No. SJC-12921), 2020 WL 5983277 (defending continued use of substantial contributing factor test). See, e.g., Burke v. Hodge, 104 N.E. 450, 451 (Mass. 1914) (combined effect of two causes sufficient to find liability); Oulighan v. Butler, 75 N.E. 726, 728 (Mass. 1905) (finding of cause “may be found in contribution of two or more wrongdoers”); Corey v. Havener, 65 N.E. 69, 69 (Mass. 1902) (noting if both defendants “contributed to the injury, that is enough to bind both”).
[xxxiv] See Brief for Massachusetts Academy of Trial Attorneys as Amici Curiae at 22-23, Doull v. Foster, 163 N.E.3d 976 (Mass. 2021) (No. SJC-12921), 2020 WL 5983277 (arguing substantial factor test is time-tested principle of causation).
[xxxv] See Doull, 163 N.E.3d at 999 (Lowy, J., concurring) (cautioning precedent does not dictate majority’s new direction).
[xxxvi] See id. at 996 (Lowy, J., concurring) (pointing to consequences of abolishing substantial contributing factor test).
[xxxvii] See Pat Murphy, SJC Resets Tort Causation Standard in Med-Mal Case, Mass. Lawyer’s Weekly (Mar. 4, 2021), https://masslawyersweekly.com/2021/03/04/sjc-resets-tort-causation-standard-in-med-mal-case/ [https://perma.cc/4Q55-T2UK ] (offering commentary on Doull opinion).
[xxxviii] Id.
[xxxix] See Brief for Massachusetts Defense Lawyers Association as Amici Curiae at 19-20, Doull v. Foster, 163 N.E.3d 976 (Mass. 2021) (No. SJC-12921) (arguing but-for test offers crucial aspects of clarity and objectivity).
[xl] See Prouty v. Thippanna, No. 4:17-40126-TSH, 2021 WL 3620426 (D. Mass. Aug. 16, 2021) (applying Massachusetts law). In Prouty, plaintiff alleged injuries as a result of negligent care in a nursing facility. Id. at *1. Defendants argued that it was not their conduct that caused plaintiff’s injury, but rather, it was plaintiff’s own history of refusing care, poor nutrition, and lack of mobility. Id. at *3. During closing arguments, defense counsel made the following statement to the jury: “When the Court instructs you on the law, you will hear about causation. When you do, I want you to remember two words: but for. ‘But for’ means that but for [defendants], plaintiff would not have developed a pressure injury.” Prouty, 2021 WL 3620426, at *3 n.1. Plaintiff argued that these remarks improperly suggested that plaintiff was contributorily negligent. Id. at *3. The trial judge disagreed and held that defense counsel properly hewed to the but-for causation standard articulated in Doull, and properly asked the jury to consider weight of patient’s condition in determining whether her injuries would have occurred absent the alleged conduct. Id. Prouty represents one of the first instances where the implications of Doull are evident—defense counsel was able to suggest that absent the defendants conduct, the injury would still have occurred due to plaintiff’s own conduct. If instructed under the substantial contributing factor test, the jury may have found that the alleged negligent nursing home care was a substantial factor to cause the harm, despite plaintiff’s own conduct.