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In re Canavan8/17/2000
conduct a Lanigan analysis to determine whether Dr. LaCava relied on a reliable methodology to determine that chemical exposures caused the employee's MCS, it was an error to admit the opinion.
The decision of the Industrial Accident Board is reversed.
So ordered.
GREANEY, J. (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, 419 Mass. 15 (1994). I understand the words "abuse of discretion" also to encompass an error of law. When I wrote the opinion in Commonwealth v. Vao Sok, 425 Mass. 787 (1997), the jury "was still out" on whether the standard for these decisions should be de novo or one of abuse of discretion-error of law. Since Vao Sok was decided, the United States Supreme Court in General Elec. Co. v. Joiner, 522 U.S. 136 (1997), and numerous other courts, have adopted an abuse of discretion-error of law standard. The clear weight of authority is now on the side of that test. I agree that we should follow the weight of authority on the issue, particularly because most evidentiary rulings by trial judges are governed by the abuse of discretion-error of law standard. Further, and perhaps more importantly, the application of the standard will make little difference in how an appellate court decides a hard science Lanigan-type case. The goal of Lanigan, as was the goal of the preceding tests, is to keep unreliable (or so-called "junk") science from fact finders, thereby reducing the prospect of the return of verdicts or the rendition of decisions of dubious validity. Where new hard science is involved, an appellate court will always take a hard look at the trial judge's decision to admit or exclude the evidence. And, as the cases illustrate, the appellate court will not hesitate to substitute its judgment for that of the trial judge, if the judge has erred in ruling on the evidence by finding it either reliable or unreliable. Thus, the Vao Sok case (reversing a motion judge's improper exclusion of DNA evidence), and this case (reversing the improper admission by an administrative judge of expert medical testimony), would be decided the same under either a de novo or an abuse of discretion-error of law standard.
Finally, I agree with the court that the acceptance of expert testimony based on, among other things, personal observations and 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., 428 Mass. 1, 15 n.15 (1998). Second, I expect that Lanigan will have little application to expert testimony in the so-called "soft" sciences, such as psychology and sociology, which are highly dependent on information derived from such sources as personal observations, clinical assessments, and statistical data. It is here, more than anywhere else, that an appellate court will defer to a trial judge's exercise of discretion, once the judge makes a decision as to the reliability of the process or theory underlying the proffered opinions and the relevance of the opinion to a matter in issue.
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