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Full Opinion
=== Opinion ===
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12921
SETH DOULL1 & another2 vs. ANNA C. FOSTER & another.3
Franklin. October 5, 2020. - February 26, 2021.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Negligence, Medical malpractice, Causation, Standard of care.
Medical Malpractice, Standard of care, Consent to medical
treatment. Practice, Civil, Instructions to jury,
Amendment of complaint, Interrogation of jurors.
Civil action commenced in the Superior Court Department on
May 28, 2014.
The case was tried before Mary-Lou Rup, J., and a motion
for a new trial was considered by her.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Krzysztof G. Sobczak for the plaintiffs.
Tory A. Weigand for the defendants.
Jennifer A. Creedon & Stephanie M. Gazda, for Massachusetts
Defense Lawyers Association, amicus curiae, submitted a brief.
1 Individually, as personal representative of the estate of
Laura Doull, and as next friend of Troy Doull.
2 Megan Doull.
3 Robert J. Miller.
2
Brendan G. Carney, Thomas R. Murphy, Kevin J. Powers, &
Elizabeth N. Mulvey, for Massachusetts Academy of Trial
Attorneys, amicus curiae, submitted a brief.
KAFKER, J. Causation has been a continually contested
concept in tort law, confounding courts, commentators, and
practitioners. In this medical malpractice case, we are asked
once again to clarify our case law on causation, along with a
series of other issues that are more readily decided.
Specifically, we examine the use of two competing causation
standards: the traditional but-for causation standard and the
alternative substantial contributing factor standard. After
careful review, we conclude that the traditional but-for factual
causation standard is the appropriate standard to be employed in
most cases, including those involving multiple alleged causes.
This is the approach recommended by the Restatement (Third) of
Torts: Liability for Physical and Emotional Harm (2010)
(Restatement [Third]). In doing so, we conclude that the
substantial factor test is unnecessarily confusing and
discontinue its use, even in multiple sufficient cause cases.
Because the jury in this case were instructed using traditional
but-for causation principles, the instructions were proper. We
3
also reject all of the plaintiffs' other claims on appeal and
affirm the order denying a new trial.4
1. Background. We summarize the facts that could have
been found by the jury, reserving certain facts for later
discussion.
a. Facts. Between 2008 and 2011, Laura Doull was a
patient of Anna C. Foster, a nurse practitioner, and her
supervisor, Dr. Richard J. Miller (collectively, the
defendants). Miller, an internist, owned the medical practice
where Doull was a patient.
In August 2008, Doull had an appointment with Foster to
seek advice regarding perimenopause-related symptoms. Foster
prescribed Doull a topically applied, naturally derived
progesterone cream to treat the symptoms.5 Foster admitted that
she did not document any conversation that she had with Doull
about the risks and benefits of, or the alternatives to, the
progesterone cream, but she did testify that they discussed
alternatives to it. However, Foster stated that she did not
4 We acknowledge the amicus briefs submitted by the
Massachusetts Academy of Trial Attorneys and the Massachusetts
Defense Lawyers Association.
5 Progesterone is a hormone that humans naturally produce.
Supplementing the progesterone that the human body produces is a
form of hormone replacement therapy typically used to treat
menopause- or perimenopause-related symptoms. Progesterone
supplements come in both synthetic and naturally derived forms.
4
discuss the possibility with Doull that the progesterone cream
could cause blood clots because she did not consider this to be
a risk. Doull continued to use the progesterone cream through
the spring of 2011.
Earlier that spring, Doull had visited Miller's practice on
three separate occasions to complain about shortness of breath.
Doull met with Foster on each visit, and Foster performed a
physical examination of Doull each time. Doull had a history of
asthma and allergies. At the spring 2011 visits, Foster
diagnosed Doull's shortness of breath as a symptom of some
combination of these long-standing conditions. Miller did not
examine Doull during any of these visits.
In May 2011, Doull had a "seizure-like event" and was
transported to the hospital. At the hospital, she was diagnosed
with a pulmonary embolism, a condition where blood clots or
other substances block portions of the pulmonary arteries in the
lungs. A pulmonary embolism may cause shortness of breath as
well as chronic thromboembolic pulmonary hypertension (CTEPH), a
rare disease where pressure in the pulmonary artery increases
and causes the heart to fail. Indeed, that May, Doull was
diagnosed with CTEPH. A lung scan revealed that blood clots in
Doull's lungs were chronic.
In November 2011, Doull underwent surgery in an attempt to
remove the blockage from her lungs, but the procedure proved
5
unsuccessful. After the surgery, Doull was prescribed various
medications to treat the pulmonary hypertension that had
resulted from her CTEPH. None of these medications abated the
disease. In 2015, Doull died from complications arising from
CTEPH. She was forty-three years old.
b. Procedural history. Prior to her death, Doull and
various family members (collectively, the plaintiffs) commenced
this suit against the defendants, claiming negligence, failure
to obtain informed consent, and loss of consortium.6 Four months
before trial, the plaintiffs moved to amend their complaint to
include the manufacturer of the progesterone cream, Women's
International Compounding Inc. (WIC), as a defendant. The trial
judge denied the plaintiffs' motion.
At trial, the plaintiffs argued that Miller and Foster
failed to obtain informed consent from Doull concerning the
progesterone cream's risks and alternatives, that Foster failed
to diagnose Doull's pulmonary embolism during the spring 2011
visits, and that Miller failed to supervise Foster adequately
during all relevant times.
To support these claims, Dr. Paul Genecin, a primary care
internal medicine physician and the plaintiffs' expert witness,
testified that natural progesterone was not any safer than
6 Doull's estate continued to prosecute the claims after her
death, amending the complaint to add a wrongful death claim.
6
synthetic derivations of the hormone, and that the cream likely
caused Doull to develop blood clots. Genecin also testified
that Foster had failed to investigate adequately Doull's
shortness of breath complaints during the spring 2011 visits.
He testified that diagnosis of Doull's pulmonary embolism during
the spring of 2011 could have prevented the onset of CTEPH, and
that Miller's failure to supervise Foster's actions constituted
a breach of the duty of care.
Dr. Nicholas S. Hill, a pulmonologist and an expert for the
defense, testified that there was "no evidence anywhere that
indicates that progesterone cream applied to the skin increases
the risk of clotting." Hill also disagreed with Genecin's
assessment that Doull's CTEPH would have been preventable had
Foster diagnosed it during the spring 2011 visits.
Specifically, Hill testified that by the time Doull was
diagnosed with CTEPH in May 2011, the disease "had been going on
for a long time, probably months at least." According to Hill,
the chronic nature of Doull's blood clots meant that her outcome
would have remained the same had Foster diagnosed her with the
disease during the spring of 2011.
The jury returned a verdict for the defendants and answered
various special questions. First, the jury found that the
defendants had not failed to acquire informed consent from Doull
with respect to the progesterone cream. Second, although the
7
jury did find that Foster negligently failed to diagnose Doull's
pulmonary embolism, they found that this negligence was not the
cause of either the harms suffered by Doull after her seizure -
like event in 2011 or her death in 2015. Finally, the jury
found that Miller had been negligent in his supervision of
Foster, but that this negligence, too, had not harmed Doull.
Before the jury returned its verdict, the defendants filed
a motion to require judicial approval for postverdict contact
with jurors, which the judge granted. After the verdict, the
plaintiffs filed a motion for a new trial, which the judge
denied. The plaintiffs then appealed. We transferred the case
from the Appeals Court to this court on our own motion.
2. Discussion. "We review the denial of a motion for a
new trial for an abuse of discretion, bearing in mind that a
judge should exercise his or her discretion only when the
verdict is so greatly against the weight of the evidence as to
induce in his [or her] mind the strong belief that it was not
due to a careful consideration of the evidence, but that it was
the product of bias, misapprehension or prejudice" (quotation
and citation omitted). DaPrato v. Massachusetts Water Resources
Auth., 482 Mass. 375, 377 n.2 (2019).
a. Jury instructions. "In a civil trial, a judge should
instruct the jury fairly, clearly, adequately, and correctly
concerning principles that ought to guide and control their
8
action" (quotation and citation omitted). DaPrato, 482 Mass. at
383 n.11. "The judge is not bound to instruct in the exact
language of the [parties'] requests, however, and has wide
latitude in framing the language to be used in jury instructions
as long as the instructions adequately explain the applicable
law" (quotation and citation omitted). Id. When reviewing jury
instructions, an "appellate court considers the adequacy of the
instructions as a whole, not by fragments" (citation omitted).
Id.
The plaintiffs argue that they are entitled to a new trial
based on several allegedly erroneous jury instructions regarding
the defendants' negligence. We consider these claims in turn.
i. Jury instructions on causation. The plaintiffs claim
that the judge's instruction on the element of causation was
erroneous. The judge instructed the jury using a but-for
standard for factual causation. Specifically, the judge
instructed:
"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."
The plaintiffs argue that the judge was required to instruct the
jury on a substantial contributing factor standard, instead of
this but-for standard, because there were several possible
9
causes of -- and multiple tortfeasors involved in -- Doull's
injuries and death. The defendants disagree, contending that
the instruction given was consistent with both Massachusetts law
and the approach taken by the Restatement (Third). 7 Because the
plaintiffs objected to the instruction given by the trial judge,
we review for prejudicial error. DaPrato, 482 Mass. at 384.
We conclude that the but-for standard was the appropriate
standard in this case and therefore there was no error. We also
clarify infra how a jury should be instructed on causation in
negligence cases involving multiple potential causes of harm.
A. But-for causation. We begin with basic causation
principles. It is a bedrock principle of negligence law that a
defendant cannot and should not be held liable for a harm unless
the defendant caused the harm. See Wainwright v. Jackson, 291
Mass. 100, 102 (1935) ("The general rule is that one cannot be
held liable for negligent conduct unless it is causally related
to injury of the plaintiff"). See also Glidden v. Maglio, 430
Mass. 694, 696 (2000) (causation "is an essential element" of
proof of negligence). Causation has traditionally involved two
separate components: the defendant had to be both a factual
cause (or "cause in fact") and a legal cause of the harm. See
Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 45 (2009)
7 We also solicited amicus briefs on whether to adopt the
factual causation standard from the Restatement (Third).
10
("Liability for conduct obtains only where the conduct is . . .
a cause in fact of the injury and where the resulting injury is
within the scope of the foreseeable risk arising from the
negligent conduct"); Kent v. Commonwealth, 437 Mass. 312, 320
(2002), citing Wallace v. Ludwig, 292 Mass. 251, 254 (1935)
(negligent conduct must be both "cause in fact of the injury" as
well as "legal cause of the injury"). Legal causation is also
commonly referred to as "proximate causation." The Restatement
(Third) describes this aspect of the causation inquiry as
whether the defendant's conduct was within the "scope of
liability." See Restatement (Third) § 26 comment a (explaining
terminology changes from prior Restatements).
Generally, a defendant is a factual cause of a harm if the
harm would not have occurred "but for" the defendant's negligent
conduct. See W.L. Prosser & W.P. Keeton, Torts § 41, at 265
(5th ed. 1984) ("An act or an omission is not regarded as a
cause of an event if the particular event would have occurred
without it"). See, e.g., Hollidge v. Duncan, 199 Mass. 121, 124
(1908) (affirming determination that plaintiff's injuries would
not have occurred "but for the defendant's negligence"). See
also Reporters' Note to Restatement (Third) § 26 comment b
(collecting authorities demonstrating that "but-for test is
central to determining factual cause"). This long -standing
principle ensures that defendants will only be lia ble for harms
11
that are actually caused by their negligence and not somehow
indirectly related to it. See Callahan v. Cardinal Glennon
Hosp., 863 S.W.2d 852, 862 (Mo. 1993) ("Any attempt to find
liability absent actual causation is an attempt to connect th e
defendant with an injury or event that the defendant had nothing
to do with. Mere logic and common sense dictate[] that there be
some causal relationship between the defendant's conduct and the
injury or event for which damages are sought"). See also
Paroline v. United States, 572 U.S. 434, 452 (2014) ("If the
conduct of a wrongdoer is neither necessary nor sufficient to
produce an outcome, that conduct cannot in a strict sense be
said to have caused the outcome"); Price Waterhouse v. Hopkins,
490 U.S. 228, 282 (1989) (Kennedy, J., dissenting) ("Any
standard less than but-for . . . represents a decision to impose
liability without causation"). Another way to think about the
but-for standard is as one of necessity; the question is whether
the defendant's conduct was necessary to bringing about the
harm. Restatement (Third) § 26 comment b ("a factual cause can
also be described as a necessary condition for the outcome").
The majority of courts around the country and all three
Restatements have required but-for causation in most cases. See
Reporter's Note to Restatement (Third) § 26 comment a. See also
Restatement (Third) § 26; Restatement (Second) of Torts § 432(1)
12
(1965) (Restatement [Second]); Restatement of Torts § 432(1)
(1939).
Additionally, for the defendant to be liable, the defendant
must also have been a legal cause of the harm. This means that
the harm must have been "within the scope of the foreseeable
risk arising from the negligent conduct." Leavitt, 454 Mass. at
45. This aspect of causation is "based on considerations of
policy and pragmatic judgment." Kent, 437 Mass. at 320–321,
quoting Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637,
640 (1996). These considerations are separate and distinct from
factual causation. Kent, supra at 320. And, together, these
concepts identify which defendants can be held liable for
negligent conduct. This case focuses primarily on factual
causation.
B. Exceptions to but-for causation. There are several
situations in which a but-for standard does not work and has
been altered to avoid unjust and illogical results. See
Paroline, 572 U.S. at 452 ("tort law teaches that alternative
and less demanding causal standards are necessary in certain
circumstances to vindicate the law's purposes"). One is the
situation involving multiple sufficient (or overdetermined)
causes. See Restatement (Third) § 27 comment b ("Courts and
scholars have long recognized the problem of overdetermined harm
-- harm produced by multiple sufficient causes -- and the
13
inadequacy of the but-for standard for this situation"). The
classic example involves two separate fires merging and
destroying a house. See generally Anderson v. Minneapolis, St.
Paul & Sault Ste. Marie Ry. Co., 146 Minn. 430 (1920). If
either fire could have independently destroyed the home, then
neither fire could be a but-for cause of the harm (because the
home would have been destroyed by the other regardless), thereby
relieving each of liability under a but-for standard. To avoid
this unjust result, there must be a different causation standard
in these cases. See Restatement (Third) § 27 comment c ("A
defendant whose tortious act was fully capable of causing the
plaintiff's harm should not escape liability merely becaus e of
the fortuity of another sufficient cause"). These cases,
however, are exceedingly rare. Id. at § 27 comment b.
The first two Restatements devised an alternative causation
standard, with its own terminology, to address this specific
problem. In circumstances in which but-for did not work, they
treated defendants as a cause where their conduct was not a
necessary but-for cause but was rather a so-called "substantial
factor" in bringing about the harm. Specifically, they provided
that "[i]f two forces are actively operating, one because of the
actor's negligence, the other not because of any misconduct on
his part, and each of itself is sufficient to bring about harm
to another, the actor's negligence may be found to be a
14
substantial factor in bringing it about." Restatement (Second)
§ 432(2). The substantial factor terminology has, as explained
infra, proved confusing, as it seems odd to describe something
that may not have been a cause at all as a substantial factor.
Nonetheless, the terminology was devised to address the specific
problem of multiple sufficient causes where but-for causation
could not be proved. It was not intended to displace but-for
causation more generally. In circumstances other than multiple
sufficient causes, but-for causation was required for a
defendant to be held liable. Id. at § 432(1).
A number of courts, including this one, have also
recognized the difficulty of proving but-for causation in toxic
tort and asbestos cases. See O'Connor v. Raymark Indus., Inc.,
401 Mass. 586, 588-591 (1986); Morin v. AutoZone Northeast,
Inc., 79 Mass. App. Ct. 39, 42 (2011). See also, e.g.,
Rutherford v. Owens-Ill., Inc., 16 Cal. 4th 953, 958 (1997);
Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 353 (Tex. 2014).
In these cases, it can be difficult, if not impossible, for the
plaintiff to identify which particular exposures were necessary
to bring about the harm. See Matsuyama v. Birnbaum, 452 Mass.
1, 30 (2008);8 O'Connor, supra, at 588-589; Welch v. Keene Corp.,
8 Contrary to the concurrence's suggestion, we certainly are
not suggesting here that Matsuyama is an asbestos or toxic tort
case, as the sentence preceding the citation makes clear. For
15
31 Mass. App. Ct. 157, 162 (1991). It may be clear that a toxic
substance or asbestos caused the harm, and that the defendants
exposed the plaintiffs to the toxic substance or the asbestos,
but it may not be possible to determine which exposures were
necessary to cause the harm. In this situation, as in multiple
sufficient cause cases, the but-for standard is inadequate, as
it could allow all defendants to avoid liability despite their
negligent exposure of the plaintiffs to the substances, as it
may not be possible to prove which exposures were necessary to
bring about the harm and which were not. The substantial factor
test again fixes this problem by relaxing the causal requirement
and permitting liability in these circumstances.
Instead of limiting the substantial factor test to these
two contexts where but-for causation cannot be established,
however, the first two Restatements combined the substantial
factor terminology and the but-for causation requirement in a
confusing manner. The term "substantial factor" was employed
generally in negligence cases. In other words, a defendant
the sake of clarity, here is the language to which we are
referring in Matsuyama -- "The 'substantial contributing factor'
test is useful in cases in which damage has multiple causes,
including but not limited to cases with multiple tortfeasors in
which it may be impossible to say for certain that any
individual defendant's conduct was a but-for cause of the harm
. . . ." (emphasis added). Matsuyama, 452 Mass. at 30. This is
the point we are making here as well, which is why we included a
citation to Matsuyama.
16
could not be liable for negligence under the first two
Restatements unless the defendant was a "substantial factor" in
bringing about the harm. See Restatement (Second) § 431;
Restatement of Torts § 431. But to be a substantial factor, the
defendant also had to be a but-for cause of the harm in most
cases. See Restatement (Second) § 432(1); Restatement of Torts
§ 432(1). The sole exception to the but-for causation
requirement was for multiple sufficient cause cases. The result
was to merge and confuse the but-for standard and the
substantial factor test. It also blurred the line between
factual and legal causation. See Restatement (Third) § 29
comment a ("The 'substantial factor' requirement . . . in the
Second Restatement of Torts has often been understood to address
proximate cause, although that was not intended").
C. Multiple cause cases. Against this background, the
plaintiffs urge, and some of our prior cases suggest, that a
substantial contributing factor standard should be used whenever
there are multiple potential causes of a harm. We conclude,
however, that a but-for standard is the proper standard in most
negligence cases, as but-for causes can be identified and
conduct that had no causal effect can be excluded.
There is a significant difference between multiple
sufficient cause and toxic tort cases and other cases involving
multiple potential causes. In multiple sufficient cause cases,
17
the existence of two independently sufficient causes means that
we cannot identify a but-for cause even though there are
multiple tortfeasors who would have caused the harm on their
own. In the absence of one of the causes, the other cause would
still have been sufficient to bring about the harm. Similarly,
in toxic tort cases, although but-for causation may be
theoretically sound, it is nearly impossible for a plaintiff or
a jury to determine with any certainty which exposures were
necessary to bring about the harm and which were not. Using a
strict but-for standard in these cases may frustrate the ability
of plaintiffs to recover for negligent conduct that caused their
harm, because of the happenstance of multiple defendants
engaging in negligent acts each of which alone may be sufficient
to cause the harm, and the impossibility of proving which of the
negligent acts were but-for causes. Thus, if anyone is to be
held liable for these harms, there must be an exception to the
but-for standard. The concern uniting these two types of cases
is the great difficulty, if not impossibility, of identifying
but-for causes of the harm.
This concern is not present in most cases involving
multiple alleged causes, however. There is nothing preventing a
jury from assessing the evidence and determining which of the
causes alleged by the plaintiff were actually necessary to bring
about the harm, and which had nothing to do with the harm.
18
Indeed, this case shows that the but-for test works well even
when a plaintiff alleges that there are multiple causes of a
harm. Here, the plaintiffs alleged that the various negligent
acts of the defendants caused Doull's harm and eventual death.
The jury were instructed on a but-for standard.9 As explained
above, the purpose of this but-for standard is to separate the
conduct that had no impact on the harm from the conduct that
caused the harm. The jury ultimately did just that -- it
concluded that the defendants did not cause the harm even though
they committed a breach of their duties by failing to diagnose
her pulmonary embolism. Tort law has long made this causal
connection a prerequisite for imposing liability. Here, using a
but-for standard, the jury concluded that no such connection
existed between the defendant's conduct and Doull's harm and
death.10 This shows how, even in a case involving multiple
9 The judge instructed the jury that "[the] 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."
10Indeed, as described above, the defendants' expert
testified that Doull's outcome would not have been different
even if Foster had diagnosed her condition in May 2011. The
jury appear to have credited this testimony, as it would explain
why the jury concluded that Foster, despite her negligence, did
not cause Doull's harm. In this way, expert testimony will
often be significant in cases involving multiple potential
causes, as it will help the jury distinguish between causes that
were necessary to bring about the harm and causes that were not.
19
causes in which the plaintiffs argue it was error not to use the
substantial contributing factor test, the but-for standard did
what it is supposed to do and prevented the defendants from
being held liable where the jury concluded that they did not
cause the harm. Indeed, these types of cases, alleging multiple
causes, may be where the but-for test is most important and
useful, as it serves to separate the necessary causes from
conduct that may have been negligent but may have had nothing to
do with the harm caused.
One source of confusion is the mistaken belief that there
can only be a single but-for cause of a harm.11 Indeed, the
plaintiffs argue that the presence of multiple potential causes
here means that no one cause could be the "sole/but -for" cause.
But there is no requirement that a defendant must be the sole
factual cause of a harm. See Reporters' Note to Restatement
(Third) § 26 comment c ("That a party's tortious conduct need
only be a cause of the plaintiff's harm and not the sole cause
is well recognized and accepted in every jurisdiction"). See
also, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1739
(2020) ("[But-for causation] can be a sweeping standard. Often,
11For an example of this confusion, look no further than
the concurrence. The concurrence thinks that by instructing the
jury that there could be more than one but-for cause, we are
creating a whole new standard separate and apart from the but -
for standard -- a "but-for plus" standard. See post at .
20
events have multiple but-for causes"); June v. Union Carbide
Corp., 577 F.3d 1234, 1242 (10th Cir. 2009) ("A number of
factors [often innocent] generally must coexist for a
tortfeasor's conduct to result in injury to the plaintiff. . . .
That there are many factors does not mean that the defendant 's
conduct was not a cause").
In fact, there is no limit on how many factual causes there
can be of a harm. Restatement (Third) § 26 comment c ("there
will always be multiple . . . factual causes of a harm, although
most will not be of significance for tort law and many will be
unidentified"). The focus instead remains only on whether, in
the absence of a defendant's conduct, the harm would have still
occurred. See id. ("The existence of other causes of the harm
does not affect whether specified tortious conduct was a
necessary condition for the harm to occur"). This is not a high
bar. See id. at § 26 comment i ("Quite often, each of the
alleged acts or omissions is a cause of the harm, i.e., in the
absence of any one, the harm would not have occurred"). And
acknowledging the potential for multiple but-for causes
"obviates any need for substantial factor as a test for
21
causation." Reporters' Note to Restatement (Third) § 26
comment j.12,13
The terminology of the substantial factor standard also
leads to confusion. See Restatement (Third) § 26 comment j
("The substantial-factor test has not, however, withstood the
test of time, as it has proved confusing and been misused").
See also Sanders, Green, & Powers, The Insubstantiality of the
"Substantial Factor" Test for Causation, 73 Mo. L. Rev. 399, 430
(2008) (substantial factor test "gives no clear guidance to the
factfinder about how one should approach the causal problem" and
"permits courts to engage in fuzzy-headed thinking about what
12 Where multiple causes are alleged, it is appropriate to
instruct a jury that there can be more than one factual cause of
a harm.
13The Restatement (Third) introduces a novel concept
referred to as "causal sets," see Restatement (Third) § 26
comment c. This concept is suggested as a helpful way to think
of factual causation in a multiple cause case. It is not a
separate test and is meant to be used only if it is deemed to be
helpful. It is not an independent legal requirement. A causal
set is defined as the group of actions or conditions that were
necessary to bring about the harm. Id. ("[C]onceive of a set
made up of each of the necessary conditions for the plaintiff's
harm. Absent any one of the elements of the set, the
plaintiff's harm would not have occurred"). So, in cases where
the factual cause of a harm is an aggregate of multiple acts,
omissions, or conditions, the Restatement simply labels the
aggregate as a "causal set." It also explains that there may be
competing causal sets. See id. at § 27 comment f. Importantly,
it does not change the standard of causation -- a defendant
would still only be a factual cause if the harm would not have
occurred but for the defendant's actions.
22
sort of causal requirement should be imposed on plaintiffs"
[emphasis omitted]). Unsurprisingly, it has "few supporters."
Reporters' Note to Restatement (Third) § 26 comment j.14
The drafters of the most recent Restatement concluded that
the confusing terminology has rendered the substantial factor
test potentially both too strict and too lenient as a standard
14Indeed, as the Restatement points out, many scholars have
criticized the substantial factor test. See, e.g., Dorsaneo,
Judges, Juries, and Reviewing Courts, 53 S.M.U. L. Rev. 1497,
1528-1530 (2000) (substantial factor "render[s] the causation
standard considerably less intelligible"); Fischer, Insufficient
Causes, 94 Ky. L.J. 277, 277 (2005) ("Over the years, courts
also used the substantial factor test to do an increasing
variety of things it was never intended to do and for which it
is not appropriate. . . . [T]he test now creates unnecessary
confusion in the law and has outlived its usefulness");
Robertson, The Common Sense of Cause in Fact, 75 Tex. L. Rev.
1765, 1776 (1997) ("By using the term ["substantial factor"] in
three different senses, the Restatement [Second] of Torts has
contributed to a nationwide confusion on the matter");
Stapleton, Legal Cause: Cause-in-Fact and the Scope of
Liability for Consequences, 54 Vand. L. Rev. 941, 945, 978
(2001) ("The obfuscating terminology of legal cause, proximate
cause, and substantial factor should be replaced . . .");
Wright, Once More into the Bramble Bush: Duty, Causal
Contribution, and the Extent of Legal Responsibility, 54 Vand.
L. Rev. 1071, 1080 (2001). See also H.L.A. Hart & T. Honoré,
Causation in the Law 124 (2d ed. 1985) ("Little, however, seems
to be gained by describing, even to a jury, such cases in terms
of the admittedly indefinable idea of a 'substantial factor'");
W.L. Prosser & W.P. Keeton, Torts § 41, at 43-45 (5th ed. Supp.
1988) ("Even if substantial factor' seemed sufficiently
intelligible as a guide in time past, however, the development
of several quite distinct and conflicting meanings for the term
'substantial factor' has created a risk of confusion and
misunderstanding, especially when a court, or an advocate or
scholar, uses the phrase without indication of which of its
conflicting meanings is intended").
23
of factual causation. See Restatement (Third) § 26 comment j.
The use of the word "substantial" imposes a more demanding
standard than a traditional but-for standard. The current model
jury instruction in Massachusetts explains that "substantial"
means that the defendant's negligence was "not an insignificant
factor" and that "it must be a material and important ingredient
in causing the harm." Massachusetts Superior Court Civil
Practice Jury Instructions § 4.3.4(b) (Mass. Cont. Legal Educ.
3d ed. 2014). There may be policy reasons to impose a more
rigorous standard for factual cause than but-for causation, but
that was not the primary purpose of the substantial factor test.
See Restatement (Third) § 26 comment j.15 Limits on liability
have also been considered to be properly addressed through the
lens of legal causation, not factual causation. If a
defendant's conduct was necessary to bring about a harm, and the
harm would not have occurred without the defendant's conduct,
15 The concurrence argues that the substantial contributing
factor standard enhances the fairness of a negligence trial.
Post at . We are not sure why this is true, particularly
from the injured party's perspective, if both factual and legal
causation are otherwise satisfied. The injured party has
suffered a harm, and but for the defendant's conduct the harm
would not have occurred. Regardless, we historically address
the equities of recovery in the legal causation, not the factual
causation, inquiry. See Kent, 437 Mass. at 320–321.
24
that defendant should be treated as a factual cause of the
harm.16
Conversely, the confusing terminology has been found to
invite jurors to skip the factual causation inquiry altogether.
Although terms like "substantial factor" or "substantial
contributing factor" would seem to imply some level of causal
connection, their employment without a but-for causation
instruction in cases in which but-for causation can be
established invites the jury to skip this step in the analysis
and impose liability on someone whose negligence lacks the
requisite causal effect.17 See Reporters' Note to Restatement
(Third) § 26 comment j (substantial factor test "may unfairly
permit proof of causation on less than a showing that the
tortious conduct was a but-for cause of harm"). Absent a but-
for requirement, a jury presented with negligence that is
"substantial" may decide to impose liability without coming to
16If the cause is truly trivial, it can be excluded from
legal causation on that ground. See Reporters' Note to
Restatement (Third) § 26 comment j. See also Restatement
(Third) § 36. Again, the Restatement (Third) approach is more
straightforward, as it allows a jury to excuse a defendant from
liability on legal causation grounds where the defendant's
conduct is determined to be trivial. See Restatement (Third)
§ 36.
17In fact, we indicated in O'Connor, 401 Mass. at 591, that
in a case where a substantial contributing factor instruction is
given, it would be error for the judge to instruct the jury in a
way that requires it to find that the defendant was a but-for
cause of the harm.
25
terms with whether the negligence was even a cause of the harm.
As determining causation may be even more difficult where
multiple causes are alleged, we need to be sure juries do not
skip this step.
The use of substantial factor language also conflates and
collapses the concepts of factual and legal causation. See,
e.g., Strassfeld, If . . . : Counterfactuals in the Law, 60
Geo. Wash. L. Rev. 339, 355 (1992) (substantial factor approach
"smuggles noncausal policy considerations, which normally are
confined to the duty or proximate cause analysis, into the
analysis of factual causation," and thus it "is either
contentless, or it reintroduces and complicates [factual
causation]"). See also Reporters' Note to Restatement (Third)
§ 26 comment a ("The conflation of factual cause and proximate
cause by the Torts Restatements has been criticized since
shortly after the first Restatement of Torts was published") .
Instructing the jury to only consider "substantial factors" as
causes inserts a high degree of subjectivity as to what is
substantial and what is not, precisely the types of policy
considerations that animate our legal causation jurisprudence.
Such considerations, therefore, should not be incorporated into
the factual causation analysis as well.
If the substantial factor test is employed whenever
multiple causes are alleged, as the plaintiffs argue, the
26
potential for confusion is significant. Plaintiffs often allege
multiple causes of a harm. Restatement (Third) § 26 comment i
("Frequently, plaintiffs allege that multiple tortious acts or
omissions caused their harm. This is especially true in
negligence actions because of the flexibility of the reasonable -
care standard"). Moreover, defendants may inject further
complexity by alleging that the plaintiffs, another defendant,
or a nonparty caused the harm. If a substantial factor
instruction is required whenever there is more than one
potential cause, then the substantial factor standard could
supplant the but-for standard as the primary standard for
factual causation. What originated as an exception to but-for
causation would swallow the rule.
Finally, using a different causation standard in multiple
cause cases puts trial judges in difficult positions. Despite
the apparent overlap, these are different standards. There is
no simple, workable definition of "multiple causes" given that
many cases will involve multiple potential causes. Using the
substantial contributing factor test in this manner would mean
that judges would have to decide which instruction is
27
appropriate before instructing the jury, a task rife with
difficulty and potential error.18
In sum, although the substantial factor test has proved
useful in two specific situations, it has not been widely
adopted as the causation standard in all negligence cases and
has been abandoned by the Restatement itself. See Restatement
(Third) § 26 comment a.19
In light of the foregoing, 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. We see no reason
18The concurrence disagrees with our assessment, saying
instead that we are "abandon[ing] . . . our steady and
successful practice of applying substantial contributing factor
in torts cases involving all sorts of fact patterns." Post at
. Beyond the concurrence's own appraisal of the situation, it
is not clear what evidence, empirical or otherwise, there is
that the use of the standard has been "steady and successful."
Our review of the record here supports our concern that having
two standards places trial judges in a difficult position
regarding jury instructions. Indeed, when forced to decide
which standard to use, the experienced and capable trial judge
in this case observed, "Well . . . I know that the law has been
somewhat confused in some people's eyes . . . following the
Matsuyama decision."
19It appears that the majority of jurisdictions -- over
two-thirds -- require proof of but-for causation in the majority
of cases. At least one jurisdiction has replaced the
"substantial factor" standard with the Restatement (Third)
approach. See Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa
2009).
28
to depart from but-for causation in these cases.20 Thus, in the
majority of negligence cases, the jury should be instructed on
factual cause using a but-for standard as well as legal
causation. In this case, the judge did exactly that, making the
instructions proper.
D. Eliminating the substantial contributing factor test.
In addition to not extending the substantial factor test to all
cases involving multiple causes, there is good reason to replace
it with the standard proposed in the Restatement (Third) for
20The concurrence minimizes the numerous extensive
critiques of the substantial factor test. To counteract all of
this criticism, it relies on a passing positive reference to the
standard as "useful" in dictum in Matsuyama, 452 Mass. at 30,
which was focused on the utility of the standard when but-for
causation cannot be established. As we have explained today,
however, but-for causation works perfectly well in most cases,
including those involving multiple causes.
The concurrence also suggests that we are somehow simply
following academic fashion in adopting the Restatement (Third).
See post at . This statement ignores that the substantial
factor test originated with the Restatement and that the case
law the concurrence cites, including Matsuyama, has demonstrated
great respect for the development of the law as reflected by the
Restatements of Torts. See, e.g., O'Connor, 401 Mass. at 591-
592 (citing Restatement [Second] §§ 430, 431, and 433); Bernier
v. Boston Edison Co., 380 Mass. 372, 386 (1980) (citing
Restatement [Second] § 435); Quinby v. Boston & Me. R.R., 318
Mass. 438, 444 (1945) (citing Restatement of Torts §§ 431 and
433); Vigneault v. Dr. Hewson Dental Co., 300 Mass. 223, 229
(1937) (citing Restatement of Torts § 432). We turn to the
Restatement not because it is fashionable to do so, but because
the American Law Institute has struggled greatly with the
complicated question of causation in negligence cases and is
constantly trying to improve the legal standard in this area,
including recognizing its own errors in this regard.
29
multiple sufficient cause cases.21 If there must be an exception
to but-for causation in cases where the but-for standard fails,
we should simply recognize such an exception rather than
adopting an entirely different causation standard with confusing
terminology and unexpected difficulties. The approach proposed
by the Restatement (Third) does exactly that. See State v.
Tibble, 790 N.W.2d 121, 127 n.2 (Iowa 2010) (Restatement [Third]
21The issue of causation in toxic tort and asbestos cases
is not before us in this case. Therefore, we do not disturb our
decision in O'Connor or the use of the substantial contributing
factor instruction in those cases. In an appropriate case,
however, we may consider whether to replace the substantial
contributing factor test in these cases as well. There appears
to be a variety of approaches taken in these cases, and a
decision on whether to replace the substantial contributing
factor test would benefit from full briefing and argument.
The concurrence misunderstands the court's hesitance to
abandon the substantial contributing factor test in asbestos and
other toxic tort cases. As we have explained, because of the
unique features of these cases, there may be factual and
scientific limitations on a plaintiff's ability to establish the
requisite causal connection between the harm and an individual
defendant. Thus, a but-for standard has seemed ill-suited for
such cases.
It is simply not clear whether the concerns we have with
the substantial contributing factor test justify eliminating it
in these cases. Given the volume of these cases, their great
importance, and the idiosyncrasies that make them unique with
regard to factual causation, it would be unwise to apply our
holding to these cases as well without first having the benefit
of full briefing and argument. Our hesitance, however, should
not be taken as a continuing endorsement of the substantial
factor approach in toxic tort cases given the concerns we have
expressed today.
30
§ 27 is "straightforward rule" in multiple sufficient cause
cases).
Therefore, in the rare cases presenting the problem of
multiple sufficient causes, the jury should receive additional
instructions on factual causation. Such instructions should
begin with the illustration from the Restatement (Third) of the
twin fires example so that the complicated concept ca n be more
easily understood by the jury.22 After the illustration, the
jury should be instructed, "A defendant whose tortious act was
fully capable of causing the plaintiff's harm should not escape
liability merely because of the happenstance of another
sufficient cause, like the second fire, operating at the same
time." The jury should then be instructed that when "there are
two or more competing causes, like the twin fires, each of which
is sufficient without the other to cause the harm and each of
22 That illustration is as follows:
"Rosaria and Vincenzo were independently camping in a
heavily forested campground. Each one had a campfire, and
each negligently failed to ensure that the fire was
extinguished upon retiring for the night. Due to unusually
dry forest conditions and a stiff wind, both campfires
escaped their sites and began a forest fire. The two
fires, burning out of control, joined together and engulfed
Centurion Company's hunting lodge, destroying it. Either
fire alone would have destroyed the lodge. Each of
Rosaria's and Vincenzo's negligence is a factual cause of
the destruction of Centurion's hunting lodge."
Restatement (Third) § 27 comment a, illustration 1.
31
which is in operation at the time the plaintiff's harm occurs,
the factual causation requirement is satisfied." See
Restatement (Third) § 27 comment a. In such cases, where there
are multiple, simultaneously operating, sufficient causes, the
jury do not have to make a but-for causation finding. This
approach avoids the confusing terminology presented by the terms
"substantial factor" or "substantial contributing factor." It
also eliminates the risk of the judge instructing the jury on
the wrong standard, as this instruction supplements the but-for
standard without conflicting with it.23
We recognize that the substantial factor test is a familiar
standard in Massachusetts and that it has been used in the past,
arguably with our endorsement, albeit for specific purposes.
23The concurrence reads our opinion as providing "not one
standard of factual causation but many," including "basic but
for," "but for plus", and "the new instruction on [multiple
sufficient cause] cases." Post at . This is incorrect. See
parts 2.a.i.C and 2.a.i.D, supra ("in the majority of negligence
cases, the jury should be instructed on factual cause using a
but-for standard"; "in the rare cases presenting the problem of
multiple sufficient causes, the jury should receive additional
instructions on factual causation" [emphases added]). There is
no "but-for plus"; we merely make clear what nearly every other
jurisdiction recognizes -- that there is no requirement that a
defendant be the sole factual cause of the harm. See Reporter's
Note to Restatement (Third) § 26 comment c. With the exception
of toxic tort cases, see note 21, supra, and the exceedingly
rare multiple sufficient cause cases, the but-for standard will
be the standard for factual causation. The other instructions
we provide today merely clarify or expand on that concept in
appropriate cases.
32
See, e.g., Matsuyama, 452 Mass. at 30-31. That we have used
this standard before, however, does not automatically mean that
we should continue to do so. In fact, given that the
Restatements are the source of this standard, 24 the Restatement
(Third)'s own recent criticism and rejection of this standard
based on its confusing application provide good reason to
reconsider its use. Having thoroughly considered these
standards now, we conclude that the substantial contributing
factor test should no longer be used in most negligence cases.
ii. Jury instructions on standard of care and breach.
Next, the plaintiffs claim that the jury instructions improperly
emphasized reliance on expert testimony for establishing the
standard of care and breach regarding informed consent, citing
to the following portions of the jury instructions as
problematic:
"In determining the -- the standard of care that applied at
the time Nurse Practitioner Foster and Dr. Miller treated
Laura Doull you must -- you must consider the testimony of
the witnesses who offered their expert opinions on the
applicable standard of care. That is, Dr. Genecin, Dr.
Hill, Dr. Kenneth Miller and Dr. Potter. You do not decide
on your own what the standard of care is or should have
been, what it ought to have been. You must decide the
standard of care based on the testimony of those witnesses.
And obviously, as I said earlier, if there's conflict
between the -- their opinions as to what the standard of
24Early Massachusetts cases using a substantial factor
standard relied on the first Restatement. See, e.g., Quinby,
318 Mass. at 444; Vigneault, 300 Mass. at 229; McKenna v.
Andreassi, 292 Mass. 213, 218 (1935). We also relied on the
Restatement (Second) in O'Connor, 401 Mass. at 592.
33
care is, your role is to determine which opinion you credit
in that regard.
"You may also consider, and should also consider, any
medical resources that may have been available to Dr.
Miller and to Nurse Practitioner Foster during the time
period that they were treating Laura Doull as one aspect of
the skill and care required of them at the time. . . . You
make that determination [of the standard of care] from all
of the evidence introduced during the trial as well as, as
I said, you must take into account the -- the testimony of
the four medical experts and their testimony with regard to
what the standard of care was."
The plaintiffs contend that the trial judge was required to
instruct the jury that the standard of care could come from
regulations, specifically 244 Code Mass. Regs. § 9.04(5)
(2000),25 and that breach could be established through an
admission of fault. The plaintiffs conclude that the judge's
failure to instruct on these points led the jury to find that
the defendants had acquired Doull's informed consent regarding
the progesterone cream. Because the plaintiffs objected, we
review for prejudicial error. See Blackstone v. Cashman, 448
Mass. 255, 270 (2007). We conclude that the judge's
instructions were not erroneous.
25Title 244 Code Mass. Regs. § 9.04(5) states: "Full
Disclosure. When proposing any diagnostic or therapeutic
intervention which is beyond the scope of generic nursing
practice, an [advanced practice nurse] shall fully disclose to
the patient or to the patient's representative the risks and
benefits of, and alternatives to, such intervention and shall
document such disclosure in the patient's record."
34
A. Standard of care. "To prevail on a claim of medical
malpractice, a plaintiff must establish the applicable standard
of care . . . ." Palandjian v. Foster, 446 Mass. 100, 104
(2006). "In Massachusetts, 'it is entirely proper to offer in
evidence . . . [an official regulation] to show the relevant
standard of care.'" Campbell v. Cape & Islands Healthcare
Servs., Inc., 81 Mass. App. Ct. 252, 255 (2012), quoting Herson
v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 793 (1996).
See Mass. G. Evid. § 414 (2020) ("Safety rules, governmental
regulations or ordinances, and industry standards may be offered
by either party in civil cases as evidence of the appropriate
care under the circumstances"). However, a judge need not
instruct on a regulation if it is "not relevant to the facts of
[the] case." Boothby v. Texon, Inc., 414 Mass. 468, 483, 484
(1993) ("A judge need not instruct the jury on every spin th at a
party can put on the facts").
Focusing on what was disputed here regarding the informed
consent claims resolves the plaintiffs' issue with the adequacy
of the standard of care instructions. At trial, it was
undisputed that the defendants owed Doull a duty to inform her
about the material risks of, and alternatives to, the
35
progesterone cream.26 The parties disputed what constituted a
material risk of the treatment, with each side putting forth
conflicting expert testimony on whether natural progesterone
cream applied topically would increase the chances of developing
blood clots. It is unclear how further instruction on 244 Code
Mass. Regs. § 9.04(5), which speaks only generally of the duty
to inform, could have aided the jury in establishing the
progesterone cream's material risks.27 To establish these,
jurors would have had to look to expert testimony -- exactly
what the judge instructed them to do. Therefore, the standard
of care instructions did not prejudice the plaintiffs.
B. Breach. The plaintiffs' argument that the trial judge
erroneously failed to instruct the jury that breach could be
established through a defendant's admission is equally without
26In fact, the judge instructed the jury that "a medical
care provider owes to his or her patient the duty to disclose,
in a reasonable manner, all significant medical information that
the medical care provider possesses or reasonably should
possess[] that is material to an intelligent decision by the
patient whether to undergo a proposed course of treatment."
27The plaintiffs also, somewhat obliquely, point to other
policies and procedures offered in evidence as sources of the
standard of care, alleging that these, too, were improperly
overshadowed by expert testimony in the instruction. Because
the judge told the jurors to examine all of the evidence entered
during the trial when determining the standard of care, it is
unclear how the instructions were improper, let alone
prejudicial.
36
merit.28 "Testimony concerning conclusory admissions by a
malpractice defendant may suffice to sustain a jury's finding of
negligence if, from the admission, the jury 'could infer an
acknowledgment of all the necessary elements of legal
liability.'" Collins v. Baron, 392 Mass. 565, 568 (1984),
quoting Zimmerman v. Litvich, 297 Mass. 91, 94 (1937). Indeed,
we have said that "a doctor's admission that an injury was 'his
fault' sufficed to warrant a jury's finding of negligence. See
Collins, supra, citing Tully v. Mandell, 269 Mass. 307, 308-309
(1929). No such admission, however, is at issue here.
During her testimony at trial, Foster admitted that she did
not inform Doull that natural progesterone cream carried any
risk of blood clotting. Yet, this admission would not have been
sufficient to render Foster liable for failing to acquire
informed consent from Doull: the jury would have had to find
that natural progesterone cream carried a risk of causing blood
clots in order for Foster to have committed a breach of her duty
to inform Doull about the risk. Cf. Collins, 392 Mass. at 566
(defendant admitted that he "made a mistake during the
28The plaintiffs' argument on this point is difficult to
follow. They claim that the "erroneous instruction also spread
to the breach portion of the case, again with overemphasis on
experts." This is followed by discussion of Foster's admission
discussed infra. Consequently, we interpret this argument as a
claim that the judge ought to have instructed the jury that
Foster's admissions could establish breach.
37
hysterectomy," had severed plaintiff's ureter, and was at
fault). Whether the progesterone cream posed such a risk was a
matter that the jury would have had to turn to the experts'
testimony to determine. The jury instructions on breach, then,
were proper.
b. Motion to amend. The plaintiffs contend that their
motion to amend the complaint to add WIC as a defendant should
have been allowed. The judge denied the plaintiffs' motion on
the grounds that the discovery deadline had passed and the
plaintiffs had failed to explain why they had not added WIC
earlier.
"We review the denial of a motion to amend the complaint
for abuse of discretion." Dzung Duy Nguyen v. Massachusetts
Inst. of Tech., 479 Mass. 436, 461 (2018). Despite this
standard, "leave should be granted unless there are good reasons
for denying the motion." Mathis v. Massachusetts Elec. Co., 409
Mass. 256, 264 (1991). See Mass. R. Civ. P. 15 (a), 365 Mass.
761 (1974). "Such reasons include 'undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of the amendment . . . .'" Mathis,
supra, quoting Castellucci v. United States Fid. & Guar. Co.,
372 Mass. 288, 290 (1977).
38
The plaintiffs claim to have learned in November 2016 that
the defendants had ordered from WIC the progesterone cream that
Foster prescribed to Doull. The plaintiffs did not move to add
WIC as a party until April 2017, approximately five months after
making the discovery and four months before trial began. At the
time of their motion, the plaintiffs failed to explain the delay
or address that the discovery period had expired. Given these
facts, the judge's denial of the plaintiffs' motion was not an
abuse of discretion. See Mathis, 409 Mass. at 264-265 ("an
unexcused delay in seeking to amend is a valid basis for denial
of a motion to amend"); Castellucci, 372 Mass. at 292 ("When
trial is as imminent as it was in this case, a judge may give
weight to the public interest in the efficient operation of the
trial list and to the interests of other parties who are ready
for trial").
c. Posttrial contact with jurors. The plaintiffs argue
that the trial judge improperly granted the defendants' motion
to require judicial approval for postverdict contact with the
jurors. Considering the reasons for the plaintiffs' request to
initiate contact with the jurors, the judge's decision was
proper.
Attorneys are generally not required to seek court approval
before initiating postverdict contact with the jury. See
Commonwealth v. Moore, 474 Mass. 541, 551 (2016). An attorney
39
may not, however, initiate postverdict contact with the jury if
"the communication is prohibited by law or court order"
(emphasis added). Mass. R. Prof. C. 3.5 (c) (1), as appearing
in 471 Mass. 1428 (2015). See Moore, supra at 549 n.10 ("We do
not question that, when appropriate, a judge in a particular
case may restrict or even prohibit attorneys' unsupervised
communication with jurors postverdict; such a court order is
expressly contemplated by rule 3.5 [c] [1]"). A judge may bar
postverdict contact with the jury if the attorney seeks to
inquire "into the contents of jury deliberations and thought
processes of jurors." Id. at 548.
In response to the defendants' motion to require judicial
approval for postverdict contact with the jurors, the plaintiffs
explained that they sought to contact the jurors in order to ask
them "how they felt about [Miller's trial counsel] nearly
assaulting Dr. Genecin . . . on the witness stand and if they
would have felt differently if the attorney was male and witness
was female."29 These objectives fall far afield of anything
resembling a valid reason for approaching jurors and instead
appear to be aimed at "inquiry into the contents of jury
deliberations and thought processes of jurors and the
29In granting the defendants' motion, the trial judge noted
that no assault occurred and that the plaintiffs' suggestion
otherwise could distort the jurors' understanding of the
advocacy process.
40
impeachment of jury verdicts based on information that might be
gained from such inquiry." See Moore, 474 Mass. at 548. For
these reasons, the trial judge's concerns that the plaintiffs
would pry into the jurors' deliberations were warranted and the
prohibition on postverdict contact with the jury was
appropriate.
d. Additional claims. Finally, the plaintiffs make a
litany of arguments that cite few or no legal authorities,
contain cursory or no argumentation, or are unsubstantiated in
the record or reference no portions of the record at all.30
30The plaintiffs contend, for example, that if the trial
judge had admitted every publication they offered in evidence,
then "a different result on the informed consent questions would
have been likely." For this conclusion, the plaintiffs cite
once to Pfeiffer v. Salas, 360 Mass. 93, 99 (1971), but provide
no discussion of it. We further discern no abuse of discretion
in the trial judge's limitations on the use and reference to
certain drugs containing progesterone that were not demonstrated
to be the same as or sufficiently similar to the topical
progesterone cream used by Doull. Next, the plaintiffs make at
least nine different versions of the argument that the judge
systematically abused her discretion and deprived them of a fair
and balanced trial. For each iteration of this claim, the
plaintiffs fail to explain how the judge abused her discretion
or how it prejudiced them, resorting instead to vague
declarations that they were denied a fair trial. The plaintiffs
then turn to the judge's denial of their motion for judgment
notwithstanding the verdict on the defendants' affirmative
defenses. For this claim, the plaintiffs make no argument on
appeal at all, instead directing our attention to arguments they
made below. Finally, the plaintiffs argue that the judge abused
her discretion in various ways during the pretrial and discovery
processes. Again, these claims are made with scant argument.
More is required from appellate advocates.
2
These claims do not rise to the level of appellate argument.31
See Mass. R. A. P. 16 (a) (9), as amended, 428 Mass. 1603
(1999). We therefore do not consider them.32
3. Conclusion. For the foregoing reasons, we affirm the
judgment and the order denying the plaintiffs' motion for a new
trial.
So ordered.
31Because the plaintiffs' appeal raised nonfrivolous
issues, we reject the defendants' call to award appellate
attorney's fees and double costs. See Masterpiece Kitchen &
Bath, Inc. v. Gordon, 425 Mass. 325, 330 n.11 (1997) ("The
determination whether an appeal is frivolous is left to the
sound discretion of the appellate court . . ."). See also Avery
v. Steele, 414 Mass. 450, 455 (1993), quoting Allen v.
Batchelder, 17 Mass. App. Ct. 453, 458 (1984) ("An appeal is
frivolous '[w]hen the law is well settled, when there can be no
reasonable expectation of a reversal'").
32We cannot, however, pass over in silence the many
references made in the plaintiffs' brief to the trial judge's
supposed biases. At various points, the plaintiffs' counsel
insinuates or outright alleges that the trial judge was biased
toward the defendants. Indeed, the plaintiffs' brief conclu des
by noting of the causation issue: "The simple truth is the
Trial Court gave the wrong instruction of law in order to
guarantee a defense verdict." We have reviewed the transcript,
and the judge exhibited patience, rectitude, and fairness
throughout the trial. The record supports none of the
accusations found in the plaintiffs' briefs.
LOWY, J. (concurring, with whom Gaziano, J., joins). Today
the court abandons decades of precedent in an attempt to clarify
confusion that does not exist. Abandoning the substantial
contributing factor instruction in circumstances where there is
more than one legal cause of an injury will, in my view, inure
to the detriment of plaintiffs with legitimate causes of action
while not clarifying the existing law of causation. To be
clear, I agree that regardless of the test, the outcome in this
case is the same. Here, the jury found only one breach on which
to consider causation; this is the paradigmatic situation for
but-for causation.1 Yet for the following reasons, I would
maintain the current practice of applying the substantial
contributing factor test to multiple cause cases.
1. Current law. We have long applied the substantial
contributing factor test. See, e.g., Bernier v. Boston Edison
Co., 380 Mass. 372, 386 (1980); Tritsch v. Boston Edison Co.,
1 At trial, plaintiffs argued three theories of negligence:
(1) that Anna C. Foster and Richard J. Miller failed to acquire
informed consent from Laura Doull, (2) that Foster failed to
diagnose Doull properly during her spring 2011 visits, and (3)
that Miller was negligent in his supervision of Foster. The
jury eliminated informed consent as a possible theory, thus
leaving only the failure to diagnose and the negligent
supervision claims. These two theories of negligence shared
only one cause, because finding liability on the negligent
supervision claim hinged on the failure to diagnose claim.
Thus, although the judge should have initially instructed on the
substantial contributing factor test, failure to do so was
harmless.
2
363 Mass. 179, 182 (1973); Falvey v. Hamelburg, 347 Mass. 430,
435 (1964); Quinby v. Boston & Me. R.R., 318 Mass. 438, 444-445
(1945); Vigneault v. Dr. Hewson Dental Co., 300 Mass. 223, 229
(1938). References in our cases to causes being "substantial
contributing" factors even predate the test's modern formulation
in the Restatement of Torts (1939) and Restatement (Second) of
Torts (1965). See Wheeler v. Worcester, 10 Allen 591, 594, 597
(1865). In recent years, we have refined how the test is
applied to cause-in-fact problems. See Matsuyama v. Birnbaum,
452 Mass. 1, 30-31 (2008) (limiting substantial contributing
factor test to cases with multiple causes). Examination of the
test reveals why it has so long endured.
To begin, note how the substantial contributing factor test
mirrors the analysis of but-for causation. Save for the rare
instances where two or more causes are each alone sufficient to
produce a result, we have made clear that a substantial
contributing factor must actually make a difference as to
whether an event occurs in order to be considered a cause of it.
In O'Connor v. Raymark Indus., Inc., 401 Mass. 586, 592 (1988),
for example, we held that a jury must "distinguish between a
'substantial factor,' tending along with other factors to
produce the plaintiff's [harm], and a negligible factor, so
slight or so tangential to the harm caused that, even when
combined with other factors, it could not reasonably be said to
3
have contributed to the result." If the plaintiff cannot
demonstrate that the defendant's negligence substantially
contributed to the alleged harm, then the defendant cannot be
held liable. See id. at 587. Just as but-for causation does,
the substantial contributing factor test embodies a core
principle of tort law: only those who meaningfully contributed
to a person's harm should be liable for it.2 See Wainwright v.
Jackson, 291 Mass. 100, 102 (1935).
2 Semantics further proves the point. A substantial
contributing factor must first and foremost be a genuine factor.
It would be difficult to contemplate how conduct could
"substantially" contribute to an outcome and yet the outcome
would have happened without the conduct. See Black's Law
Dictionary 1728 (11th ed. 2019) (defining "substantial" as "1.
Of, relating to, or involving substance; material . . . . 2.
Real and not imaginary; having actual, not fictitious, existence
. . . . 3. Important, essential, and material; of real worth
and importance").
Other courts have echoed this sentiment. See, e.g., June
v. Union Carbide Corp., 577 F.3d 1234, 1239 (10th Cir. 2009)
("the ultimate legal standards in the two Restatements," one of
which advocates substantial contributing factor and other of
which advocates but-for cause, "are essentially identical");
Mitchell v. Gonzales, 54 Cal. 3d 1041, 1052 (1991) ("the
'substantial factor' test subsumes the 'but for' test");
Burnette v. Eubanks, 308 Kan. 838, 850-851 (2018) ("An act of
negligence which contributes to an accident must, of necessity,
have at least a part in causing the accident" [citation
omitted]). Hence, even critics of the substantial contributing
factor test concede that it works fine when clearly delineated:
the test implicitly subsumes within it the same requirements of
but-for cause. See Robertson, The Common Sense of Cause in
Fact, 75 Tex. L. Rev. 1765, 1781 (1997) ("As long as courts are
careful to explain that they are not adding a sixth requirement
-- but instead are either using the 'substantial factor' test
for cause in fact in lieu of the but-for approach or are using
4
Where the two tests part ways is in where they focus
jurors' attention. The substantial contributing factor test is
positive in outlook: it frames causation to have a juror start
by considering what actually happened, and whether the
defendant's actions played a part in producing the result. See
Restatement (Second) of Torts § 431(a). But-for causation, on
the other hand, begins not with what was, but with what might
have been: in order to determine whether what occurred was the
product of the defendant's action, the jury must determine how
the sequence of events would have played out in the absence of
this conduct. See Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 26 comment e (2010) (Restatement
[Third] of Torts).
Although this counterfactual framing may be straightforward
when the jury are considering only one theory of causation, I
fear that in cases with multiple causes it invites the jury to
get caught up in speculative combinations of "what if" and "if
only." See, e.g., Green, The Causal Relation Issue in
Negligence Law, 60 Mich. L. Rev. 543, 556 (1962) ("Tests of this
character have the same vice as any 'if,' or any analogy. They
take the eye off the ball"). See also Spellman & Kincannon, The
Relation Between Counterfactual ("But For") and Causal
the 'substantial factor' vocabulary to describe a general
approach to the legal cause issue -- no clear harm is done").
5
Reasoning: Experimental Findings and Implications for Jurors'
Decisions, 64 Law & Contemp. Probs. 241, 243-247 (2001)
(detailing how moral and other nonfactual factors enter into
jurors' considerations when engaged in counterfactual
reasoning). The substantial contributing factor test better
replicates how many people understand causation and thus avoids
this issue.
These considerations reveal not only why we recently said
that the substantial contributing cause test was "useful" in
cases with multiple causes, but also how the test promotes
fairness. Matsuyama, 452 Mass. at 30. As with the other
elements of a negligence claim, plaintiffs bear the burden of
proving causation. See Glidden v. Maglio, 430 Mass. 694, 696
(2000). In the sorts of byzantine fact patterns that often
arise in medical malpractice, toxic tort, and other tort cases
with multiple causes, an instruction on but-for causation
provides defendants with tools unavailable to plaintiffs. For
example, civil defendants in cases with multiple causes
sometimes "employ an 'empty chair' defense -- blaming the party
not on trial." Lind v. Domino's Pizza LLC, 87 Mass. App. Ct.
650, 665 (2015). This strategy is but one example of how but -
for causation encourages jurors to speculate about alternative
realities. An instruction on the substantial contributing
factor test, however, focuses the jurors attention directly on
6
what ought to determine legal responsibility: the conduct of
the parties.
2. The court's approach. The court abandons what has been
our steady and successful practice of applying the substantial
contributing factor test in torts cases involving all sorts of
fact patterns, not just in "twin fire" and toxic tort cases.
See, e.g., Renzi v. Paredes, 452 Mass. 38, 44 n.10 (2008)
(substantial contributing factor test proper in loss of chance
case where liability was premised on failure to diagnose); Morea
v. Cosco, Inc., 422 Mass. 601, 603 n.2 (1996) (jury found
defective product design not "substantial cause" of child's
death); Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6,
14 (1983) (jury could find liquor store's sale of alcohol to
minor was "substantial legal factor" causing cyclist's death) ;
Mullins v. Pine Manor College, 389 Mass. 47, 58, 62 (1983) (jury
could find that injury to rape victim was substantially caused
by college's negligent security).
Why the sudden about-face? Precedent does not dictate the
new direction, as recent affirmations of the substantial
contributing factor test attest. See, e.g., Renzi, 452 Mass. at
44 n.10. Practices, too, remain unaltered. See, e.g., Parsons
v. Ameri, 97 Mass. App. Ct. 96, 102 (2020) (jury instructed on
substantial contributing factor test in medical malpractice
case). Indeed, even the current Massachusetts Continuing Legal
7
Education Civil Practice Jury Instructions recognize our use of
the substantial contributing factor test in cases with multiple
causes. See Massachusetts Superior Court Civil Practice Jury
Instructions § 4.3.4(a) practice note (3d ed. 2014) (but-for
test is "suitable for use in the ordinary tort case without the
complexity of multiple causes or tortfeasors").
Only one thing has changed: the Restatements. Whereas
earlier Restatements embraced the substantial contributing
factor test, the Restatement (Third) of Torts has rejected it.
Compare Restatement of Torts § 431(a) and Restatement (Second)
of Torts § 431(a), with Restatement (Third) of Torts § 26.
Specifically, the Restatement (Third) calls the substantial
contributing factor test "confusing," concluding that, aside
from multiple sufficient cause cases, the test "provides nothing
of use in determining whether factual cause exists."
Restatement (Third) of Torts § 26 comment j. This position is
now the court's. What we very recently called "useful" is now
supposedly no longer so. See Matsuyama, 452 Mass. at 30.
Of course, we are not bound to follow old law when new
facts reveal that application is unworkable in our jurisdiction.
See Franklin v. Albert, 381 Mass. 611, 617 (1980). Yet such
facts are absent here. Notably, when the court discusses the
confusion that the substantial contributing factor test has
8
allegedly generated, citations to our cases drop off. 3 Instead,
the court replicates an abstract and academic discussion of the
problems that the Restatement (Third) of Torts found with the
standard.4 See ante at - . We should be "disinclined to
fix something that is not broken, even if [we] would have
constructed it differently in the first place." 5 Stonehill
College v. Massachusetts Comm'n Against Discrimination, 441
Mass. 549, 589 (Sosman, J., concurring), cert. denied sub nom.
Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against
Discrimination, 543 U.S. 979 (2004).
Furthermore, how much of the apparent confusion the court's
solution would dispel is unclear. Although the court criticizes
the substantial contributing factor test for requiring judges to
3 One of the court's citations to our cases is also
inaccurate. Matsuyama, 452 Mass. at 30, is a loss of chance
medical malpractice case; it is neither a toxic tort nor an
asbestos case, although the court lumps it in with those cases.
4 By way of explanation, the Restatement (Third) of Torts
catalogues various uses of the test across different
jurisdictions. The test appears to be more confusing when
comparing cases across jurisdictions -- which unsurprisingly
evince the sort of pluralism characteristic of the common law's
development -- than when comparing cases within a jurisdiction.
Regardless, absent from these comparisons is Massachusetts. See
Restatement (Third) of Torts § 26 comment j.
5 Other States have also successfully continued to apply the
substantial contributing factor test in recent years despite the
alternative presented by the Restatement (Third) of Torts. See,
e.g., O'Grady v. State, 140 Haw. 36, 46 (2017) (reaffirming use
of test in negligence cases).
9
determine how many causes are alleged in a case, the court
provides not one standard of factual causation but many. First,
there is basic but-for: as is currently the practice, in cases
where there is one alleged cause, jurors should be instructed on
but-for causation. See ante at - . Second, there is but-
for plus: in cases where there are more than one alleged cause,
it is "appropriate" to also inform the jurors that there can be
more than one but-for cause of a harm.6 See id. at note 12.
Third, there is the new instruction on the twin fires example:
in cases where there are multiple sufficient causes, jurors are
to be given a hypothetical scenario detailing a camping trip
gone wrong, told that "[a] defendant whose tortious act was
fully capable of causing the plaintiff's harm should not escape
liability merely because of the happenstance of another
sufficient cause, like the second fire, operating at the same
time" along with a follow-up explanation of this instruction,
and then sent to deliberate. See id. at . Fourth, and
finally, the substantial contributing factor test remains: for
all its purported confusion, the standard continues to work well
in toxic tort cases -- except for the fact that the court also
6 Even but-for plus presents an option within an option, as
the court implies by noting that it is merely "appropriate," not
necessary, for the trial judge to so instruct the jury in cases
where there are multiple alleged causes.
10
invites in a footnote overturning what it otherwise praises. 7
See id. at note 21.
The Restatements are owed respect. Our cases, however,
deserve more. See Mabardy v. McHugh, 202 Mass. 148, 152 (1909)
("Parties should not be encouraged to seek re-examination of
determined principles and speculate on a fluctuation of the law
with every change in the expounders of it"). The number of
tests the court provides is a tacit recognition of what our
cases have long understood: the but-for standard is useful, but
limited in its usefulness. Given that our cases have had
decades to refine this point, following them is the prudent
course.
7 Additionally, adopting a new approach to cause-in-fact
issues in torts will encourage litigants to press for its
application in other areas of the law beyond negligence, such as
commercial disparagement, defamation, and false representation.
See, e.g., HipSaver, Inc. v. Kiel, 464 Mass. 517, 537 (2013),
quoting Restatement (Second) of Torts § 633 comment g ("[w]hen
the loss of a specific sale is relied on to establish pecuniary
loss, it must be proved that the publication was a substantial
factor influencing the specific, identified purchaser in his
decision not to buy"); Murphy v. Boston Herald, Inc., 449 Mass.
42, 67 (2007) ("The judge properly instructed the jury: 'The
pain and suffering for which [the plaintiff] is entitle d to
recover in this action is the pain and suffering which the
defamatory statement was, or were, a substantial factor in
producing'" [alteration in original]); Reisman v. KPMG Peat
Marwick LLP, 57 Mass. App. Ct. 100, 112 (2003) ("It has long
been the law in Massachusetts that, where reliance on a
fraudulent misstatement is a substantial factor in the decision
to purchase and/or retain stock, the maker of a false
representation is liable for a subsequent loss in the value of
stock suffered in reliance on the false representation").
11
3. Conclusion. With so many pages of the Massachusetts
Reports already filled with the successful application of the
substantial contributing factor test, the court's conclusion
that the test is now unworkable defies experience and unravels
precedent. I fear that it does so at the price of fairness.
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