Thanks, Rick

While the Massachusetts SJC's (partial) rejection of the substantial factor test and adoption of the R3d's treatment of factual causation (including  independently sufficient as well as necessary conditions) and scope of liability is welcome, it misunderstands the multiple causal sets (NESS) analysis underlying R3d section 27 (the blackletter of which, however, uses ambiguous and defective but-for language that fails to distinguish duplicative from preemptive causation). In footnote 13, it states:

"The 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."  

The NESS causal sets analysis that is incorporated in the comments to (but not the blackletter of) R3d section 27 is a more inclusive test of causation that includes the but-for and independently-sufficient tests as corollaries but also encompasses unnecessary and non-independently-sufficient conditions (e.g., three independent drops of poison when only two are necessary). The latter situation existed in Paroline v US, where the USSC employed the NESS analysis but erroneously labeled it as a "legal fiction."

The SJC fails to explain clearly why this case is a multiple but-for cause situation rather than an overdetermined causation situation. Both the nurse practitioner, who  failed to diagnose Doull's pulmonary embolism, and the supervising doctor, who failed to supervise (and indeed seems to have left medical diagnosis and treatment entirely to the nurse), were found negligent by the jury, which, however, also found that neither's negligence was a cause under the provided but-for causation instruction. The doctor's failure to supervise, as apparently assumed by the SJC, presumably consisted of a failure independently to diagnose the pulmonary embolism or to ensure proper diagnosis by the nurse. But-for the nurse's negligence, there would have been a proper diagnosis. But-for the doctor's negligence, there would have been a proper diagnosis. Contrary to what Rick states in his blog, there were two negligent failures to diagnose. However, the SJC assumes the jury believed the defense expert's testimony that lack of a proper diagnosis was not a (but-for) cause of the subsequent seizure and death.

The Nebraska case cited by Harvey did not, I believe, address or adopt the R3d's treatment of factual causation, but rather agreed with the R3d and other courts that foreseeability should not be an aspect of duty but rather of breach. For a good discussion of that issue, addressing the law in the states as of 2011, including Nebraska, see Michael K. Steenson, Minnesota Negligence Law and the Restatement (Third) of Torts: Liability for Physical and Emotional Harms, 37 William Mitchell Law Review 1055 ([2011), available at: http://open.mitchellhamline.edu/wmlr/vol37/iss3/9.

Richard W. Wright

University Distinguished Professor Emeritus

Professor of Law Emeritus

Illinois Institute of Technology Chicago-Kent College of Law

https://www.kentlaw.iit.edu/faculty/richard-wright

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On Sun, Feb 28, 2021 at 9:04 AM Richard Peltz-Steele <rpeltzsteele@umassd.edu> wrote:

Dear colleagues,

For your information, the Massachusetts Supreme Judicial Court adopted the Third Restatement for causation Friday.  More detail:

State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers

Disclaimer: I recognize that this and other lists have engaged in more sophisticated discussions of causation.  For this blog post, I had my students in mind as audience, especially the ones next to take the bar, and I eschewed a comparative perspective.

The court's opinion is here.  I'm sure there will be ample commentary flowing out in the coming week.

March at last!

rick

Richard J. Peltz-Steele
Chancellor Professor, UMass Law School
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