BOSTON (Legal Newsline) – Deciding whether something was a “substantial factor” in causing harm, a favorite method of plaintiffs lawyers, is too confusing, the Massachusetts Supreme Court has ruled.
Justice Scott Kafker and his colleagues ruled Feb. 26 to instead instruct courts to use the “but-for” test for causation in negligence lawsuits, rejecting pleas by medical malpractice lawyers in a lawsuit that resulted in a defense verdict.
The case drew the attention of both the Massachusetts Academy of Trial Attorneys and the Massachusetts Defense Lawyers Association. The plaintiffs in it argued negligent treatment, including the use of a progesterone cream blamed for blood clots, led to a pulmonary embolism that killed Laura Doull, but the jury found that negligence was not a cause of it.
Doull’s lawyers claimed the treatment was a contributing factor to her health issues. The defense argued that they couldn’t prove that but for the treatment, Doull would not have suffered the embolism.
“In such cases where there are multiple, simultaneously operating, sufficient causes, the jury do not have to make a but-for causation finding,” Justice Kafker wrote.
“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.”
The court noted the ‘contributing factor’ standard has been used in the state, even with its approval. But it followed a Restatement from the American Law Institute that criticizes that standard as confusing in negligence cases.
Some justices concurred in the result but wrote separately to say the “substantial factor” test should continue to be used in cases with multiple causes.
Kafker also wrote in a footnote that the plaintiffs lawyers at Sobczak Law made unsubstantiated gripes about a perceived bias by the trial court judge, Mary-Lou Rup.
“The simple truth is the Trial Court gave the wrong instruction of law in order to guarantee a defense verdict,” they wrote in one of their appeals documents.
Kafker instead wrote that Rup, who has since resigned from the bench and has taken a job at Bulkley Richardson, exhibited patience and fairness throughout the trial.