This is an appeal from a decision by the reviewing board of the Department of Industrial Accidents (board) affirming a decision of an administrative judge finding that Theresa Canavan (plaintiff or employee) is temporarily unable to work and that her medical treatment is reasonable and necessary. The self-insurer, Brigham and Women’s Hospital (hospital), appealed from the board’s decision to the Appeals Court pursuant to G. L. c. 152, § 12,
1. Background. We set forth the factual background. The employee received her bachelor’s degree in nursing from Boston State College in 1980. In September, 1983, she began a full-time position as a nurse in the hospital’s recovery room where she worked until June, 1990, when she began working as a nurse in the hospital’s operating room. As an operating room
Dr. Laurentano, whose antibiotic treatment had proved only marginally effective for the employee, referred her to Dr. N. Thomas LaCava. The employee first met with Dr. LaCava in June, 1994. He became her treating physician and provided, by deposition, the expert medical testimony on her behalf at the workers’ compensation hearing. Dr. LaCava is a private practitioner, an instructor in pediatrics at the University of Massachusetts Medical School, a staff pediatrician at Holden District Hospital, St. Vincent Hospital, Worcester Hahnemann Hospital, and The Memorial Hospital, and is on the medical staff at University of Massachusetts Hospital. He is certified in pediatrics by the American Board of Medical Specialties and is certified in environmental medicine by the American Board of Environmental Medicine, a field not recognized by the American Board of Medical Specialties.
In response to the employee’s complaints, Dr. LaCava conducted an extensive medical examination. He took her medical history, performed an examination, and conducted a number of diagnostic tests. Dr. LaCava concluded that the employee suffered from arthritis, paresthesias, organic brain syndrome, chemical induced headaches, immunodeficiency, and multiple chemical sensitivities (MCS) secondary to chemical poisoning, which Dr. LaCava believed was caused by exposure during her employment at the hospital. He testified that MCS “is a systemic reaction of the body with multiple symptoms to multiple kinds
Dr. Donald D. Accetta testified by deposition for the hospital. Dr. Accetta’s testimony directly contradicted the conclusions reached by Dr. LaCava. Dr. Accetta is certified by the American Board of Allergy and Immunology. He is a private practitioner, a consultant in allergy at New England Medical Center, and the secretary of the New England Society of Allergy, and has served on the board of directors for both the New England Society of Allergy and the Massachusetts Allergy Society. Dr. Accetta examined the employee on two occasions. He testified that the employee’s condition was not caused by chemicals present in her work environment and that MCS is “not accepted as a diagnostic disease by mainstream allergists/immunologists and occupational medicine physicians.” Also, he testified that the course of treatment prescribed by Dr. LaCava is not accepted and not appropriate for the symptoms exhibited by the employee. Dr. Accetta diagnosed the employee as suffering from chronic nonallergic rhinitis caused by nonspecific stimuli that exist in the every day environment. He also stated that the employee’s symptoms have a psychogenic component.
After hearing testimony from the employee and a claims adjustor and reviewing the depositions of Dr. LaCava and Dr. Accetta, the judge concluded that the employee was totally unable to work as the continuing result of an injury (“being highly reactive to low levels of environmental chemicals”) that arose in the course of her employment and that the employee’s medical treatment, including intravenous vitamin C treatment, was reasonable and necessary. The judge made these determinations “based on the opinions of Dr. LaCava regarding disability and causal relationship.”
The primary issue presented by this appeal is whether the
2. Preliminary issues. Before reaching the merits of the hospital’s claim, we address two arguments of the employee. She contends that the hospital’s claim that MCS is not a scientifically reliable diagnosis is barred by the doctrine of judicial estoppel: the principle that “[a] party who has successfully maintained a certain position at a trial cannot in a subsequent trial between the same parties be permitted to assume a position relative to the same subject that is directly contrary to that taken at the first trial.” Paixao v. Paixao,
In a lawsuit separate from this action, the employee and others sued the hospital seeking common-law tort damages because of her affliction with MCS. See Niles-Robinson vs. Brigham & Women’s Hosp., Inc., Suffolk Superior Court. Civ. A. No. 96-4260-D (Jan. 2, 1997).
The employee’s argument, however, misconstrues the function of a motion to dismiss pursuant to rule 12 (b) (6). The purpose of a rule 12 (b) (6) motion is to determine whether, under any set of facts, a plaintiff would be entitled to relief. Nader v. Citron,
The employee also maintains that the hospital did not properly preserve its objection to the admission of Dr. LaCava’s testimony at the hearing. All the expert physician testimony was taken by deposition pursuant to 452 Code Mass. Regs. § 1.12(5) (1993). At each point during the deposition prior to Dr. LaCava’s offering a conclusion regarding the nature of the employee’s condition or the cause of the condition, the hospital’s attorney objected to his conclusion as lacking a foundation. The hospital’s attorney reiterated these objections in his written closing submission to the judge in which he explicitly referenced the reliability standards established in Commonwealth v. Lanigan, supra at 26. In our view the steps taken by the hospital’s attorney, in the context of a workers’ compensation hearing, were sufficient to preserve the admissibility of Dr. LaCava’s testimony for appellate review.
3. Lanigan analysis. Having determined that the hospital’s claim is properly before the court, we turn to whether the judge properly admitted Dr. LaCava’s testimony. As workers’ compensation proceedings are governed by the rules of evidence applicable in the courts of this Commonwealth, 452 Code Mass. Regs. § 1.11(5) (1993), our decision must be made pursuant to our rules concerning the admission of expert scientific testimony.
Prior to our decision in Commonwealth v. Lanigan, supra, we required that in most circumstances “the community of scientists involved [must] generally accept[] the theory or process” for it to be admitted in evidence. Commonwealth v. Curnin,
In order to account for this circumstance, we adopted in part the United States Supreme Court’s reasoning in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
In Commonwealth v. Vao Sok, supra at 797, we held that our review of a judge’s Lanigan decision is de novo. We recognized
The Court in Joiner held that a judge’s determination on the reliability of scientific testimony is no different from other evi-dentiary decisions by a trial judge that are reviewed on appeal under an abuse of discretion standard of review. Id. We agree with this conclusion. The advantage of applying a de novo standard of review for the admission of scientific testimony is that an appellate court may conduct a thorough review of the relevant scientific literature on a particular subject and reach a well-informed decision that will serve as precedent to guide trial judges in future cases. The shortcoming in this approach, however, is that it assumes that “the application of the particular scientific method would not vary from case to case and thus would be worthy of a judicial stamp of approval or rejection as a matter of law from an appellate court.” State v. Alberico,
Moreover, when considering novel scientific testimony there is often limited literature for an appellate court to examine to determine whether a scientific theory or method is reliable. This is part of the rationale for abandoning exclusive reliance on general acceptance under the Frye test. We recognized in the Lanigan case that a scientific method or theory could be so novel that it has not yet had time to appear in the scientific literature and thus to have gained general acceptance in the
4. Dr. LaCava’s testimony. The hospital challenges the reliability of Dr. LaCava’s opinions that (a) the employee suffered from MCS and (b) her MCS condition was caused by chemicals present in the hospital. The judge admitted both these opinions. We address the challenge to each opinion separately.
a. Diagnosis. The judge in a written opinion adopted Dr. LaCava’s opinion that “the employee is totally disabled due to being highly reactive to low levels of environmental chemicals,” i.e., she suffers from MCS. The Appeals Court concluded that the judge’s decision to admit Dr. LaCava’s diagnosis testimony was proper either under a Lanigan analysis or on an alternative basis. The court stated that “certain expert testimony based on personal observations, clinical experience, or generally accepted scientific techniques need not be subject to the Lanigan analysis.” Canavan’s Case,
We agree with this conclusion. There is no logical reason why conclusions based on personal observations or clinical experience should not be subject to the Lanigan analysis. “That a person qualifies as an expert does not endow his testimony with magic qualities.” Boston Gas Co. v. Assessors of Boston,
The Appeals Court held that the judge implicitly conducted a Lanigan analysis and properly admitted Dr. LaCava’s testimony that the employee suffered from MCS. Canavan’s Case, supra at 300-301. The court pointed to the judge’s findings that the diagnostic tests performed by Dr. LaCava were “generally accepted in the community of doctors who understand toxicity,” id. at 300, and that Dr. LaCava had knowledge, training, and experience and conducted diagnostic and laboratory tests on the employee to support its conclusion that Dr. LaCava’s MCS diagnosis was admissible. Id. at 301.
In his deposition testimony, Dr. LaCava stated that the tests he performed were accepted by doctors familiar with environmental toxicity
Dr. LaCava referred to “the literature” as confirming the
b. Causation. Our conclusion that the diagnosis testimony was improperly admitted disposes of this case; however, because of the importance of the question, we address the hospital’s contention that it was an error to admit the causation testimony. The judge concluded not only that the employee suffered from MCS but that it was caused by her work at the hospital. Specifically, Dr. LaCava agreed that “to within [szc] a reasonable degree of medical certainty” it was his opinion that her condition was “caused by the exposures of multiple chemicals that she has been exposed to at the [hospital] during the course of her employment.” Dr. LaCava admitted during cross-examination that there is medical uncertainty as to the cause of MCS. He acknowledged that MCS may be caused by many factors including genetics, metabolism, physical stress, or toxic exposures, and that causation may differ depending on the
Because understanding medical causation is “beyond the . . . knowledge of the ordinary layman . . . proof of if it must rest upon expert medical testimony.” Hachadourian’s Case,
The decision of the Industrial Accident Board is reversed.
So ordered.
(concurring). I accept the court’s decision to adopt an abuse of discretion standard for analyzing Lanigan decisions by trial judges. See Commonwealth v. Lanigan,
Finally, I agree with the court that the acceptance of expert testimony based on, among other things, personal observations or clinical experience, should, as a general proposition, be subject to a Lanigan analysis. I add two observations. First, in the absence of specific, concrete evidence suggesting unreliability, Lanigan should not be used to revisit areas where we have validated expert testimony based on properly conducted personal observations and clinical testing applying generally accepted scientific techniques. See generally Vassallo v. Baxter Healthcare Corp.,
Notes
Pursuant to G. L. c. 152, § 12 (2), a decision of the Industrial Accident Reviewing Board is reviewed in accordance with the standards expressed in G. L. c. 30A, § 14 (7) (á) - (d), (j), and (g). Scheffler’s Case,
In her common-law tort suit, the employee joined several other employees. One of these employees appealed from the Superior Court judgment. In affirming the judge’s decision to dismiss the suit, the Appeals Court noted that the hospital “argue[d] at length . . . that MCS is a questionable and highly debatable ‘injury’ which has not been deemed a valid medical condition or a form of disability under Federal law.” Niles-Robinson v. Brigham & Women’s Hosp., Inc.,
Title 452 Code Mass. Regs. § 1.11(5) (1993) provides that unless otherwise provided by G. L. c. 152 or 452 Code Mass. Regs. § 1.00, which are not relevant here, “the admissibility of evidence and the competency of witnesses to testify at a hearing shall be determined under the rules of evidence applied in the courts of the Commonwealth.”
The cases that provide an exception for opinions based on an expert’s personal observations were all decided without reference to the Lanigan decision. See, e.g., Commonwealth v. Gordon,
Application of the Lanigan test requires flexibility. Differing types of methodology may require judges to apply differing evaluative criteria to determine whether scientific methodology is reliable. In the Lanigan case, we established various guideposts for determining admissibility including general acceptance, peer review, and testing. Commonwealth v. Lanigan,
We caution that a judge’s application of the Lanigan test must not define the “relevant scientific community” so narrowly that the expert’s opinion will inevitably be considered generally accepted. If the community is defined to include only those experts who subscribe to the same beliefs as the testifying expert, the opinion will always be admissible. A relevant scientific community must be defined broadly enough to include a sufficiently broad sample of scientists so that the possibility of disagreement exists.
He testified that, among occupational physicians, doctors who treat diseases that occur in the workplace, fifty per cent of those doctors might invoke a psychological instead of an organic cause for the disorder.
This is especially true when, as in this case, another expert testifies that the methodology employed is specious.
The employee relies on Social Security disability cases to defend the judge’s decision to admit testimony regarding MCS. See Creamer v. Callahan,
In view of our decision, it is unnecessary to reach the other issue raised by the hospital: whether there was admissible evidence that the employee’s vitamin C treatment was reasonable and necessary.