Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment

Plaintiff's decedent started smoking in the early 1960s,
at age 13 or 14, with free samples of Kents.
(David Shay CC BY-SA 2.5 via Wikimedia Commons)

An error in jury instruction was small but crucial in a Massachusetts tobacco liability case, resulting in partial vacatur in the Appeals Court.

The plaintiff, decedent's representative, alleged design defect as cause of terminal lung cancer. The jury was instructed that the plaintiff had to prove the availability of a reasonable alternative design by the time the plaintiff was addicted.

That instruction described too tight a time frame, the court held. "[T]he jury should have been told to assess whether a reasonable alternative design existed at the time of distribution or sale."

The court explained:

If a manufacturer continues to make and sell a harmful and addictive product even though a safer alternative is available, the fact that the consumer is addicted to the product makes it more—not less—important for the manufacturer to adopt the available safer alternative. The purpose of anchoring liability to the point in time when the defective product is sold or distributed is to give manufacturers an incentive to create safer products [citing, inter alia, the Third Restatement of Torts].... Were we to adopt the defendants' view that liability should attach only up until the point in time a smoker becomes addicted to cigarettes, that incentive would be severely diminished, or even eliminated. Such a rule would in essence immunize cigarette manufacturers from liability to addicted persons even though they continue to sell or distribute defective products despite the availability of reasonable alternative designs. We see no reason to limit liability in this way, especially given the addictive nature of cigarettes, the speed with which smokers can become addicted to them, and the years—if not decades—thereafter during which a person continues to smoke and thus remains exposed to the dangers of cigarettes. In this regard, we note further that, as the expert testimony bore out, ... the degree or point of addiction to tobacco may be viewed as a continuum rather than a bright line. For this reason, it is all the more important that manufacturers be encouraged to produce safer, less addictive products at all points in time so as to increase the possibility that an addicted smoker be able to quit.

The court vacated the judgment in favor of defendants insofar as it arose from the erroneous instruction.

The case is Main v. R.J. Reynolds Tobacco Co., No. 20-P-459 (Mass. App. Ct. Apr. 8, 2022). Justice Gabrielle R. Wolohojian wrote the opinion for a unanimous panel.

'Error in judgment' jury instruction properly cuts room for doctor to escape liability for delay of surgery

Ischemic bowel in CT scan
(image by James Heilman, MD, CC BY-SA 3.0)

A doctor did not commit malpractice by awaiting test results before committing a patient to surgery for an ischemic bowel, even if permanent disability resulted from delay, the Massachusetts Appeals Court ruled before Memorial Day weekend.  The jury was properly instructed to allow leeway for error in judgment.

The plaintiff-patient presented at the emergency room at 1 a.m. in severe abdominal pain and with a history of gastric bypass surgery and hernia repair.  The defendant-doctor correctly suspected ischemic bowel, a blood blockage, and, at 3 a.m., sent the patient for a CT scan.  Based on the scan results, the doctor, at 4:23 a.m., ordered the patient to surgery, which commenced by 6:30 a.m.

The court summarized, "The main dispute at trial was whether [the doctor] acted within the standard of care by ordering the CT scan and waiting for the results, or whether he instead should have contacted a surgeon earlier."  On appeal from judgment entered for the doctor, the plaintiff charged that the jury was erroneously instructed to allow for error in the doctor's professional judgment.

Tracking model jury instructions (p. 5), the trial judge had instructed, inter alia:

"If, in retrospect, the physician's judgment was incorrect, it is not, in and of itself, enough to prove medical malpractice or negligence.

"Doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as that judgment does not represent a departure from the standard of care resulting in a failure to do something that the standard of care requires or in doing something that should not be done under the standard of care.

"In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the standard of care."

In affirming for the doctor, the court upheld the instruction.  The court reviewed a range of approaches in other states to "error of judgment" instruction in medical malpractice cases.  Hawaii and Oregon, for example, reject the instruction as posing too great a risk of confusion for the jury.  California accords with the Massachusetts position.  Other states, such as New York, use the instruction "only where there is evidence at trial that the physician chose from one of several medically acceptable alternatives."  In defense of the Massachusetts position, the court reasoned:

If properly formulated, such an instruction focuses the jury's attention on the standard of care, rather than the particular results in a case.  The instruction also recognizes the reality that, like all professionals, medical professionals need to make judgment calls between various acceptable courses of actions and they should not be found liable unless those judgment calls fall outside the standard of care.

The range of approaches demonstrates civil courts' long struggle with hindsight bias, especially in medical malpractice.  Hindsight bias is a natural human tendency to overestimate one's ability to make a decision correctly when viewing the decision as if in the past, ignorant of consequences, but from a perspective in the present, informed, in fact, by subsequently acquired information.  Shankar Vedantam talked about the problem on The Hidden Brain podcast in 2020.

Hindsight bias is not unique to medical malpractice, nor even to tort law.  Psychologists have documented hindsight bias in "accounting and auditing decisions, athletic competition, and political strategy," besides medicine.  As I wrote in a book on legal pedagogy in 2019, the cartoon South Park even invented a character, Captain Hindsight, to make fun of the human foible.  Hindsight bias inevitably contaminates every tort case, and countering it often is an appropriate strategy in legal argument and jury instruction.  For a juror, like any decision maker, it is difficult to reconstruct a past decision to the complete exclusion of undesired consequences.

The problem is exaggerated in the medical context because of the simplicity of the doctor-patient relationship.  A patient sees a doctor for one purpose, exclusively: to get better.  A doctor has one and only one job: to heal.  When healing is not the result that a patient experiences, and the jury has knowledge of that consequence, it is deceptively easy for jurors to confuse the doctor's failure to heal with a departure from the standard of care.  The Massachusetts instruction is designed to clarify the distinction for jurors.

The case is Paiva v. Kaplan, No. 19-P-1789 (Mass. App. Ct. May 28, 2021).  Justice Joseph M. Ditkoff authored the opinion of the unanimous panel that also comprised Justices Vuono and Milkey.  In a former post as general counsel of the District Court, Justice Ditkoff's responsibilities included drafting standardized jury instructions.