Com. v. ELM Medical Laboratories, Inc.

Decision Date24 July 1992
Docket NumberNo. 90-P-1378,90-P-1378
Citation33 Mass.App.Ct. 71,596 N.E.2d 376
PartiesCOMMONWEALTH v. ELM MEDICAL LABORATORIES, INC., et al. 1
CourtAppeals Court of Massachusetts

W. Paul Needham, Boston, for defendants.

Susan Papanek McHugh, Asst. Atty. Gen., for the Com.

Before KASS, JACOBS and GILLERMAN, JJ.

GILLERMAN, Justice.

In October, 1979, Nancy Ridley, the director of the laboratory regulation program at the Massachusetts Department of Public Health (DPH), inspected the facilities of ELM Medical Laboratories, Inc. (ELM). 2 The business of ELM was to perform laboratory tests in anatomic and clinical pathology, including tests in Pap smears. 3

The results of the inspection were not satisfactory to Ridley. Additional information was gathered, in consequence of which the Attorney General on May 9, 1980, filed a complaint against ELM and Baez (see note 1, supra) alleging that ELM's medical testing procedures, and other acts and omissions, constituted unfair or deceptive acts or practices in violation of G.L. c. 93A, § 2. A preliminary injunction was sought and obtained, the effect of which was to shut down the Pap smear testing procedures of ELM. ELM, Baez and Attianese filed a cross-claim against DPH, Ridley and Alfred L. Frechette, Commissioner of Public Health, alleging tortious conduct and asserting Federal and State civil rights violations.

The Commonwealth's complaint and the cross-claim were tried to a jury in June and July of 1986, more than six years after the complaint was filed. The judge directed a verdict for DPH on the cross-claim against it, and he submitted special questions to the jury on the Commonwealth's c. 93A claims and on the surviving cross-claims against Frechette and Ridley. The jury found that ELM, Baez and Attianese had each violated G.L. c. 93A, and they found for Ridley and Frechette on the cross-claims. Motions for a new trial were denied, and judgment was entered imposing civil fines against Baez and Attianese and a permanent injunction barring them from participating in the management of a clinical laboratory.

On appeal ELM, Baez and Attianese claim that there were erroneous instructions to the jury, that the directed verdict in favor of DPH was error, and that the judge abused his discretion in imposing civil fines and a permanent injunction. 4 We affirm the judgment.

First we recapitulate some needed background facts which, on the considerable documentary and testimonial evidence, the jury would have been warranted in finding.

Following the October, 1979, inspection referred to above, Ridley conducted a more extensive review of ELM's records. The review revealed, inter alia, that with only two cytologists ELM was performing sixty thousand screenings per year. The recommended standard maximum number of screenings per cytologist per year was ten thousand to twelve thousand.

There was a follow-up, joint Federal-State, inspection on April 22, 1980. This revealed numerous unacceptable procedures. 5 The investigators concluded on May 2, 1980, that "the probability of misdiagnosis of cytology cases is extremely high for this laboratory ... [and that] the laboratory's cytology operation should be considered an imminent health hazard and cytologic diagnosis should cease."

Because much of ELM's work was not subject to Federal regulation, DPH contacted the Attorney General's office, and suit was brought on behalf of the Commonwealth.

Meanwhile ELM was informed by letter dated May 22, 1980, that, for all the reasons set out in the letter, HCFA (see note 2, supra) had terminated ELM's Federal certification for Pap smear testing effective June 7, 1980, that notice of the termination would be published in a local newspaper explaining the reasons for the action, and that the termination, and the reasons therefor, would also be made known to the users of ELM's services.

As a result of their findings, HCFA and DPH issued a "Health Alert" dated July 2, 1980, at a joint press conference held by the two agencies. The release published a list of physicians and clinics who referred Pap smears to ELM for testing during the preceding four years, and it included the warning that "[a]ny woman who has had a Pap smear taken by any of these physicians or clinics should contact them promptly to determine if rescreening is necessary.... [S]ome women could be at risk because their Pap smear slides were improperly screened or actually misread.... [W]e believe that at least several hundred women are not aware that they are at some unnecessary risk of having abnormal, pre-cancerous or cancerous condition." The release did not mention either Baez or Attianese.

1. The directed verdict in favor of DPH on the cross-claim. Count one of the cross-claim alleged negligence in conducting the inspections of ELM's laboratories and in releasing the "Health Alert." In count two it was alleged that the acts described in count one, and certain other acts, were all designed to intimidate and coerce Baez and Attianese and deprived them of their rights to due process, all in violation of 42 U.S.C. § 1983 (1988) and G.L. c. 12, §§ 11H and 11I.

We first address the primary issue in this case, the motion for a directed verdict against DPH in respect of count two-- claims arising out of the State Civil Rights Act. 6 The trial judge disagreed with the motion judge and ruled that the enactment of G.L. c. 12, §§ 11H and 11I, did not constitute a waiver of the State's sovereign immunity, and the Commonwealth defends the trial judge's decision in this court. Neither this court nor the Supreme Judicial Court has, to our knowledge, decided whether the State, or a department of the State, is a "person" for purposes of G.L. c. 12, §§ 11H and 11I.

The Commonwealth argues that much of the language of the State Civil Rights Act was borrowed directly from the Federal Civil Rights Act, and therefore Massachusetts courts should follow Federal decisions in deciding interpretive issues under the State act. The United States Supreme Court in Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989), held that a State agency is not a "person" for purposes of § 1983 when suit is brought in a State court. 7 Therefore, the argument goes, we should reach the same result under the State Civil Rights Act. 8

The Supreme Judicial Court has relied on Federal decisions in concluding, in an action under the State Civil Rights Act, that a qualified immunity is available to public officials performing discretionary functions. See Duarte v. Healy, 405 Mass. 43, 46, 537 N.E.2d 1230 (1989). But the court has not yet adopted all the decisions of the United States Supreme Court under § 1983, see id. at 47, 537 N.E.2d 1230. More to the point, the decision of the United States Supreme Court in Will v. Michigan Dept. of State Police, supra, preserving the sovereign immunity of States and their agencies, was substantially influenced by considerations of federalism. See id. 491 U.S. at 65, 109 S.Ct. at 2308 (if Congress intends to alter the "constitutional balance between the States and the Federal Government," it must do so by unmistakably clear language).

We must decide the question under our own jurisprudence. We conclude, for a number of reasons, that the Commonwealth is not a "person" for purposes of c. 12, §§ 11H and 11I. 9

Neither the language of the statute nor its legislative history supports the argument that the Commonwealth is a "person." Certainly the use of the word "person" does not call for that result, for that word is not ordinarily construed to include the State. See Kilbane v. Secretary of Human Servs., 14 Mass.App.Ct. 286, 287-288, 438 N.E.2d 89 (1982), where the authorities are collected. See also Will v. Michigan Dept. of State Police, 491 U.S. at 64, 109 S.Ct. at 2308 ("in common usage, the term 'person' does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it"). The definition of a "person" in G.L. c. 4, § 7, cl. twenty-third, includes such nonanimate entities as corporations, societies, associations and partnerships but not the Commonwealth or its departments.

The statute's legislative history is not to the contrary. Reviewing that history, the Supreme Judicial Court in Batchelder v. Allied Stores Corp., 393 Mass. 819, 821, 473 N.E.2d 1128 (1985), observed that "[t]he Legislature passed this statute to respond to a need for civil rights protection under State law. Deprivations of secured rights by private individuals using violence or threats of violence were prevalent at the time.... The statute encompassed private action where otherwise 'State action' would be required" (emphasis added; footnote omitted).

More importantly, there is no reason to believe that the Legislature intended, by the enactment of G.L. c. 12, §§ 11H and 11I, to waive sovereign immunity. While the Act itself "admits of no immunities," Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 251-252, 485 N.E.2d 673 (1985), the Supreme Judicial Court has ruled that certain immunities are available under the act. See id. at 252, 485 N.E.2d 673. See also Duarte v. Healy, 405 Mass. at 48, 537 N.E.2d 1230. The decisive inquiry in this case is whether the Legislature, in enacting the statute, "intended to abrogate a tradition of ... [sovereign] immunity rooted in history and based upon sound considerations of public policy." Chicopee Lions Club v. Dist. Attorney for the Hampden Dist., supra 396 Mass. at 252, 485 N.E.2d 673.

There can be no doubt of the age and strength of the doctrine of sovereign immunity in this Commonwealth. In 1977, the Supreme Judicial Court observed, "Massachusetts is one of only five remaining States which retain the common law [governmental] immunity at both the State and local levels." Whitney v. Worcester, 373 Mass. 208, 212, 366 N.E.2d 1210 (1977). 10 Where, as here, the...

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