Canavan's Case,

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.
• Citation: 733 NE 2d 1042,432 Mass. 304
• Decision Date: 04 May 2000
• Parties: THERESA CANAVAN'S CASE.

432 Mass. 304
733 NE 2d 1042

THERESA CANAVAN'S CASE

Supreme Judicial Court of Massachusetts, Suffolk.

May 4, 2000.

August 17, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.

432 Mass. 305

Matthew J. Walko for the employer

Peter F. Brady, Jr., for the employee.

The following submitted briefs for amici curiae:

Bert Black, of Texas, & David Zoll & Donald D. Evans, of Virginia, & Robert E. McDonnell for Chemical Manufacturers Association & another.

Hugh F. Young, Jr., of Virginia, & David A. Barry & Susan A. Hartnett for Product Liability Advisory Council, Inc.

Eileen P. Kavanagh & Michael Riseberg for Massachusetts Defense Lawyers Association.

Martin S. Kaufman, of New York, & Michael E. Malamut for Marcia Angell & others.

COWIN, J.

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 arguing that the medical testimony provided through deposition by the plaintiff's doctor on diagnosis, disability, and causation was not based on reliable methodology pursuant to the standard set forth in Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994), and should not have been admitted by the judge. The Appeals Court held that the medical evidence was properly admitted and affirmed the plaintiff's award. Canavan's Case, 48 Mass. App. Ct. 297 (1999). We granted the hospital's application for further appellate review and reverse the board's decision.

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

432 Mass. 306

nurse, she was responsible for the safe care of patients during surgery, including preparing the room for surgery, caring for the surgical instruments, and assisting the surgeons. During the workers' compensation hearing, the employee testified that, while in the operating room, she was subjected to various chemicals including ethylene oxide, formaldehyde, and diesel fuel. On August 6, 1993, at the conclusion of a ten-hour day in the operating room, she experienced a severe headache, nasal congestion, and dizziness. She returned to work on August 9, 1993, but still suffered symptoms, including a fever, headache, and swelling of her nose and right cheek. After arriving at the hospital for work, she was referred to Dr. Arthur M. Laurentano who confirmed her symptoms and prescribed a course of antibiotics. At that time she was diagnosed as having chronic sinusitis and was determined to be disabled. The hospital accepted her medical condition and paid her workers' compensation benefits

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

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of chemicals, which may be chemically unrelated, which are commonly present in the every day working and living environment where that environment has not been meticulously cleaned up and had the chemical sources removed." Dr. LaCava stated that laboratory tests that he conducted provided evidence that the employee suffered from MCS. Dr. LaCava testified that the employee's injury was caused by chemical poisoning at her work environment and that MCS rendered her totally disabled. Dr. LaCava prescribed a course of treatment that required intravenous infusion of vitamins, in particular high doses of vitamin C, oral nutrient supplements, antibiotics, and heat and sauna therapy

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

432 Mass. 308

judge properly admitted Dr. LaCava's testimony regarding the diagnosis and the cause of the employee's disability, on which the judge relied for his ultimate determinations. The hospital maintains that the methodology used by Dr. LaCava to reach his opinion regarding MCS and its cause is not generally accepted in the medical field and is not otherwise reliable, and therefore his opinion is inadmissible under the principles set forth in Commonwealth v. Lanigan, supra.

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, 429 Mass. 307, 309 (1999), quoting East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623 (1996). The purpose of the doctrine is to prevent the manipulation of the judicial process by litigants. See Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184, (1998).

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).² The defendant filed a motion to dismiss the suit pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), contending that the employee could not maintain a common-law tort action because of the exclusivity provisions of the Workers' Compensation Act. A judge in the Superior Court agreed and dismissed the suit. Id. The employee contends that the hospital's argument in its rule 12 (b) (6) motion estops the hospital from now arguing that MCS is not a disease that is compensable under the Workers' Compensation Act.

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, 372 Mass. 96, 98 (1977). Thus, all factual inferences must be made in favor of the plaintiff. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). For purposes of its motion to dismiss, the hospital was required to assume that the employee had acquired MCS while at the workplace. By filing a motion to dismiss, the hospital was not admitting that the employee acquired MCS at work; it was only stating that, even if she had acquired MCS at work, she could not maintain an action for...