Nina Kohn Examines “Multiple Sufficient Causes” in the Context of COVID-19 Litigation

Nina Kohn (’03), Professor of Law and Faculty Director of Online Education at Syracuse University College of Law, contributed an article to the Petrie-Flom Center at Harvard Law School’s Bill of Health blog discussing how “multiple sufficient causes” may find new relevance in the context of Covid lawsuits, as the American Law Institute (ALI) reviews the theory in the Restatement Third of Torts (“COVID-19 and the Problem of Multiple Sufficient Causes,” Oct. 12). “The American Law Institute embraced the Anderson approach in Section 27 of the Restatement Third of Torts, which states: ‘If multiple acts occur, each of which … alone would have been a factual cause of the physical harm at the same time in the absence of other act(s), each act is regarded as a factual cause of the harm.’ Despite this, the ALI — as part of its work on another portion of the Restatement — is currently debating whether to bar recovery when the other cause is ‘non-tortious.’ . . . [I]f liability is not permitted to attach where one sufficient cause is ‘innocent’… we should expect more COVID-19 claims to go off the rails despite clear evidence of wrongdoing.”