
    COMMONWEALTH OF MASSACHUSETTS v. ELM MEDICAL LABORATORY, INC., ET AL
    Civ. A. No. 41839
    Superior Court Department Trial Court of the Commonwealth of Massachusetts
    January 29, 1981
    Bellotti, (AG), for the plaintiff.
    Phillip E. Pofcher for the defendant.
   MEMORANDUM AND ORDER ON THE MOTION OF THE DEFENDANT TO DISMISS CROSS-CLAIM

YOUNG, J.

This matter comes before the Court on the motion of the Department of Public Health (the Department) to dismiss the cross-claim asserted by Elm Medical Laboratory .(Elm). The Department moves to dismiss on the grounds that Elm has failed to state a cause of action, and that the Department, as an agency of the Commonwealth, is immune from liability because of the “discretionary function” and “intentional tort” exceptions to the Massachusetts Tort Claims Act. G.L. c. 258, § 10(b) and (c).1

On May 9,1980, the Attorney General of the Commonwealth commenced this action against Elm alleging that it was engaged in unfair or deceptive acts or practices in the operation of its medical laboratory, in violation of G.L. c. 9 3A, §4. The Attorney General initiated the action following a survey by the Department of Public Health and the U.S. Department of Health and Human Services which indicated erroneous findings in the PAP smear testing conducted by Elm. This Court issued a preliminary injunction on May 9, 1980, restraining Elm from performing the PAP tests, and Elm ceased doing business. On July 28, 1980, the Department was added as a party defendant to this litigation, and Elm filed this cross-claim.

In bringing its motion to dismiss, the Department alleges that the conduct complained of by Elm involves the performance of failure to perform discretionary functions, thus insulating the Department from suit urider remaining vestiges of the doctrine of governmental immunity. After the leading case of Whitney v. City of Worcester, 373 Mass. 208 (1977), governmental entities are immune from liability “[wjhen the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning. ...” Id. at 218. This Court agrees, and Elm apparently concedes, that the actions of the Department calling a “health alert” fall within the rubric of “discretionary” activities. In furtherance of its position the Department cites G.L. c. Ill, §5, authorizing it to conduct investigations and disseminate relevant information on matters of public concern.

In bringing its cross-claim, however, Elm relies upon G.L. c. 258, § 10(a), which .provides that the Tort Claims Act shall not apply to “any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation. ...” (emphasis added). Elm contends that the Department failed to exercise such due care when it issued the health alert, and when it allegedly refused to reinspect the laboratory. The parties do not cite and research does not disclose any Massachusetts cases dealing with this aspect of section 10(a). Thus it is appropriate to look to the decisions under the nearly identical provisions of the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The United States Supreme Court in Hatahley v. United States, 351 U.S. 173 (1956), construed the “due care” language of section 2680(a) to imply “at least some minimal concern for the rights of others.” Id. at 181. The Court decided that the officials in Hatahley were not exercising due care in their enforcement of federal law because they “proceeded with complete disregard for the property rights of the petitioners.” Id.

, In order to present an actionable claim under section 10(a) of the Massachusetts Tort Claims Act, Elm must plead or show .'í'.í’Vlírwáfiyl.-itiferfer'ehcé with advantageous rela- : f'to'ns or'interference with contractual relations; \ GX.. c. 25(5,. § f0(b) and (c). by way of affidavit that the Department failed to exercise due cafe in the preparation and issuance of the “Health Alert.” Thus far Elm has failed to' do so. The Department prior to the issuance of the alert and the request for the preliminary injunction. Conversely, Elm’s cross-claim consists of a number of conclusory allegations that fail to identify a potential lack of due care on the part of the Department. The Policy, of the Commonwealth favors the ¡amendment of pleadings, however, unless a iaoea-.reason appears for denying such a" |notioin. Castellucci v. United States Fidelity and Guarantee Co., 372 Mass. 288, 289 (1977).

Prior to the entry of an order, additional considerations require mention. Under Nader v. Citron, 372 Mass. 96 (1977), this Court must uphold a complaint against a motion to dismiss “if it appears thát théplaintiff may be entitled to any form of relief, even though the particular relief he has demanded and the theory oh which he seems to rely may not be appropriate.” Id. at 104. Aside from the potential claims discussed above, it is conceivable that thé defendant President of Elm, Mr. BaezGiangreco, may present a cause of action .'alleging violation of rights afforded him tinder G.L.. c. 1Í2, § § 1-1H-.1 II. Sections and 1.11 parallel aspects'of 42 U.S.C. ftfi?'-’íh^réating the right to a civil action ^itistarry-iperson or persons who interiere yvith the exercise of any constitutional sr statútory rights of another. Commentators have suggested that public release of shch health data without affording a prior ¡fearing to the entity most likely to be affected may violate the right to procedural 1ue process. Note, 85 Harv.L.Rev. 861; 164-870 (1972). See generally, Note, 'flealth Regulation of Naturally Hazardous p'ods: The FDA Ban on Swordfish,” 85 /igrv.L.Rev. 1025,1036 n.90. The statute provides safeguards against the unlawful action of individuals and no compelling reason exists to prohibit Mr. Baez-Giangreco from amending his cross-claim to join the individual representatives or supervisory officials of the Department of Public Health who may have directed or participated in the activities vvhich allegedly deprived Mr, Baez-Giangreco of. his' fights, See; e,g., Duchesne, v. Sugarman, 566 F.2d 817, 83.1 (2d Cir. 1977); Kedra v. City of Philadelphia, 454 F. Supp. 652, 674-675 (E.D. Pa. 1978).

In view of the foregoing, the following order shall enter. The Department’s motion to dismiss Elm’s cross-claim is allowed, but the defendants are afforded the opportunity to amend their pleadings within twenty days of the daté of this order (1) to plead sufficient facts which underlie its allegation that the Department failed to exercise due care in the execution of its statutory duty, and (2) to bring in as parties-defendant the actual officers involved in.the allegedly unlawful activity, against whom the individual defendant might have an action.

William G. Young

Justice of the Superior Court 
      
       is .appropriate to note the controversy; in. the ;.'f<^i%^;e£i¿f;tá -regarding the.pleadlng -.i^gú'lt'etTipnts gJfQ^i!igi?.;!-i;.ijlaifns upd^f-Fed. R. Ch&fi^tp)(2);The; tótjúíre's'great ápeciffííiív'ísh-alIegati'civil rights 't^ompiaint-, Seé.'fydgHcM. 'Hohn. 213,2.1.4n2ÍS.;3d Gir.' 1967); Jones v. McElroy, 429 F.Supp; 843í()$5ÍHihPá; 1977). Although the majority of the'fedéra'l\¿aaós do not subscribe to the theory that greater specificity fjj'; pleading is called for in civil rights cases, the,COBH'Swill dismiss a complaint as Insufficient where? allegations contained therein are vague or cj5i}$tT) sory. 2A Moore’s Federal Practice ¶-8.17 [4,1j,-'át'fc¡-178. Defendants should pay partlc'ular.attention to the pleading requirements of Mass. R. Civ. P. 8(a), should they determine that a civil rights action is appropriate in the present circumstances'.
     