Doctor Fred L. Pasternack, Appellant,v.Laboratory Corporation of America Holdings,, et al., Respondents.BriefN.Y.June 1, 2016To be Argued by: FREDERICK T. SMITH (Time Requested: 15 Minutes) CTQ-2015-00004 United States Court of Appeals for the Second Circuit Case No. 14-4101cv Court of Appeals of the State of New York DOCTOR FRED L. PASTERNACK, Plaintiff-Appellant, – against – LABORATORY CORPORATION OF AMERICA HOLDINGS a/k/a LABCORP, CHOICEPOINT, INC., Defendants-Respondents. BRIEF AND COMPENDIUM FOR DEFENDANT-RESPONDENT LEXISNEXIS OCCUPATIONAL HEALTH SOLUTIONS INC. FREDERICK T. SMITH (Pro Hac Vice Pending) SEYFARTH SHAW LLP 1075 Peachtree Street, NE, Suite 2500 Atlanta, Georgia 30309 Tel.: (404) 885-1500 Fax: (404) 892-7056 GINA R. MERRILL SEYFARTH SHAW LLP 620 Eighth Avenue New York, New York 10018 Tel.: (212) 218-5500 Fax: (212) 218-5526 Attorneys for Defendant-Respondent LexisNexis Occupational Health Solutions Inc. April 4, 2016 DISCLOSURE STATEMENT Pursuant to New York Court of Appeals Rule 500.1(f), Defendant- Respondent LexisNexis Occupational Health Solutions Inc. states that the following entities are either LexisNexis’ parents, subsidiaries, or affiliates: LexisNexis Occupational Health Solutions Inc. no longer exists. The entity was wholly owned by LexisNexis Risk Solutions Inc., which was wholly owned by LexisNexis Risk Assets, Inc., which in turn was wholly owned by LexisNexis Risk Holdings Inc. Reed Elsevier Inc. wholly owned LexisNexis Risk Holdings Inc. Reed Elsevier Inc. was indirectly wholly owned by Reed Elsevier Group plc, which was owned equally by two parent companies, Reed Elsevier PLC and Reed Elsevier, NV. STATUS OF RELATED LITIGATION The status of related litigation to this proceeding as of April 4, 2016 is as follows: On November 17, 2015, the United States Court of Appeals for the Second Circuit reserved decision regarding Plaintiff-Appellant Fred Pasternack’s appeal from judgments of the United States District Court for the Southern District of New York dismissing Pasternack’s claims against Defendants-Respondents. Additionally, the Second Circuit certified the following questions of law to the New York Court of Appeals: (1) whether drug testing regulations and guidelines promulgated by the FAA and DOT create a duty of care for drug testing laboratories and program administrators under New York negligence law; and (2) whether a plaintiff may establish the reliance element of a fraud claim under New York law by showing that a third party relied on a defendant’s false statements resulting in injury to the plaintiff. In response to Pasternack’s written request to modify certain portions of the Second Circuit’s November 17, 2015 decision, the Second Circuit issued an amended decision on November 23, 2015. The Second Circuit has not issued any rulings or orders since November 23, 2015. TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS ........................................................................................ 3 I. THE PARTIES ................................................................................................ 3 II. CONTRACTS RELATING TO NORTHEASTERN, LEXISNEXIS, AND LABCORP ............................................................................................. 4 III. PASTERNACK LEFT A DRUG TESTING FACILITY BEFORE HE PRODUCED A SUFFICIENT URINE SPECIMEN ...................................... 4 IV. A MRO DETERMINED THAT PASTERNACK REFUSED TO SUBMIT TO A DRUG TEST BECAUSE HE LEFT THE COLLECTION SITE BEFORE THE TEST WAS COMPLETED ................ 6 V. PASTERNACK’S CHALLENGE TO THE FAA’S ACTIONS .................... 7 VI. PROCEDURAL HISTORY ............................................................................ 9 ARGUMENT ........................................................................................................... 12 I. POINT I. – THE COURT SHOULD REJECT PASTERNACK’S REQUEST TO REFORMULATE THE FIRST CERTIFIED QUESTION ................................................................................................... 12 II. POINT II. – MROS DO NOT OWE TEST SUBJECTS A DUTY OF CARE ............................................................................................................. 15 A. The 2013 Landon Decision Does Not Establish That MROs Owe Test Subjects A Duty of Care Under New York Common Law ...................................................................................................... 17 1. The 2013 Landon Decision ....................................................... 17 2. Neither Landon Nor Any Other Case Establishes A Duty Of Care Regarding MRO Duties .............................................. 17 3. The New York Supreme Court’s Decision In Braverman Demonstrates The Inapplicability Of Landon To This Case ........................................................................................... 22 B. Pasternack’s Public Policy Arguments Do Not Demonstrate That MROs Owe Test Subjects A Duty Of Care ................................ 24 ii C. Pasternack Cannot Establish A Duty Of Care In Accordance With DOT Regulations ........................................................................ 29 1. There Are No DOT Regulations Supporting Pasternack’s Claim That MROs Owe A Duty To Test Subjects ................... 29 2. The DOT Regulations And Guidelines Do Not Independently Give Rise To A Duty Of Care........................... 37 CONCLUSION ........................................................................................................ 39 iii TABLE OF AUTHORITIES Page(s) Cases Baker v. Abo, No. Civ. 01-1248 JRTJSM, 2003 WL 21639151 (D. Minn. July 2, 2003) ................................................................................................................... 20 Balistrieri v. Express Drug Screening, LLC, No. 04-C-0989, 2008 WL 906236 (E.D. Wis. Mar. 31, 2008) ........................... 21 Berry v. Nat’l Med. Servs., Inc., 205 P.3d 745 (Kan. Ct. App. 2009) .................................................................... 20 Berry v. Nat’l Med. Servs., Inc., 257 P.3d 287 (Kan. 2011) ................................................................................... 20 Braverman v. Bendiner & Schlesinger, Inc., 990 N.Y.S.2d 605 (2d Dep’t 2014) ............................................................... 22, 23 Chapman v. LabOne, 460 F. Supp. 2d 989 (S.D. Iowa 2006) ............................................................... 21 Coleman v. Town of Hempstead, 30 F. Supp. 2d 356 (E.D.N.Y. 1999) .................................................................. 21 Drake v. Lab. Corp. of Am. Holdings, 458 F.3d 48 (2d Cir. 2006) ............................................................... 25, 33, 38, 39 Drake v. Laboratory Corp. of America Holdings, No. 02-CV-1924 (FB) (RML), 2007 WL 776818 (E.D.N.Y. Mar. 13, 2007) ................................................................................................. 21, 38, 39 Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999) .................................................................................. 20 Eiseman v. State, 70 N.Y.2d 175 (1987) ................................................................................... 15, 16 Elliott v. Lab. Specialists, Inc., 588 So. 2d 175 (La. Ct. App. 1991) .................................................................... 21 iv Ferguson v. Wolkin, 499 N.Y.S.2d 356 (1986) .............................................................................. 28, 29 Garlick v. Quest Diagnostics, Inc., No. 06-cv-6244 (DMC), 2009 WL 5033949 (D.N.J. Dec. 14, 2009) ................ 20 Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicecenter of Haverstraw, Inc., No. 02 Civ. 0504(RCC), 2005 WL 550940 (S.D.N.Y. Mar. 9, 2005) ............................................................................................................. 37, 38 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2011) ............................................................................. 15, 16, 30 Huerta v. Pasternack, Docket SE-18133RM, NTSB Order No. EA-5615, 2012 NTSB LEXIS 4 (N.T.S.B. Feb. 13, 2012) ....................................................................... 8 Keene v. Wiggins, 69 Cal. App. 3d 308 (4th Dist. 1977) ................................................................. 33 King v. Garfield Cnty. Pub. Hosp. Dist. No. 1, 17 F. Supp. 3d 1060 (E.D. Wash. 2014) ............................................................. 20 Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1 (2013) ......................................................................................passim Landon v. Kroll Laboratory Specialists, Inc., 934 N.Y.S.2d 183 (2d Dep’t 2011) ..................................................................... 18 Lauer v. City of New York, 95 N.Y.2d 95 (2000) ........................................................................................... 15 Lewis v. Aluminum Co. of Am., 588 So. 2d 167 (La. Ct. App. 1991) .................................................................... 21 Logan v. Bennington Coll. Corp., 72 F.3d 1017 (2d Cir. 1995) ............................................................................... 30 Long v. Forest-Fehlhaber, 55 N.Y.2d 154 (1982) ................................................................................... 37, 38 v Lopes v. Rostad, 45 N.Y.2d 617 (1978) ......................................................................................... 37 Lynn v. Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002 (Fla. Dist. Ct. App. 1997) ........................................................ 20 Martinez v. Lewis, 942 P.2d 1219 (Colo. App. 1996) ....................................................................... 33 McSweeney v. Rogan, 618 N.Y.S.2d 430 (2d Dep’t 1994) ..................................................................... 37 Medical Ctr. of Cent. Ga., Inc. v. Landers, 274 Ga. App. 78 (2005) ...................................................................................... 33 Muhlhahn v. Goldman, No. 102846/10, 2011 N.Y. Misc. LEXIS 4376 (N.Y. Sup. Ct. Aug. 18, 2011), rev’d on other grounds, 939 N.Y.S.2d 420 (2012) ...................... 31, 35 In re New York City Asbestos Litig., 5 N.Y.3d 486 (2005) ........................................................................................... 14 Ney v. Axelrod, 723 A.2d 719 (Pa. Super. Ct. 1999) .................................................................... 33 Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928) ........................................................................................... 27 Pasquaretto v Long Island Univ., 964 N.Y.S.2d 599 (2d Dep’t 2013) ..................................................................... 15 Pasternack v. Huerta, 513 F. App’x 1 (D.C. Cir. 2013) ........................................................................... 9 Pasternack v. NTSB, 596 F.3d 836 (D.C. Cir. 2010) .............................................................................. 8 Phillips v. McClellan St. Assocs., 691 N.Y.S.2d 598 (3d Dep’t 1999) ..................................................................... 16 Phillips v. Quality Terminal Servs., LLC, No. 08-v-6633, 2009 WL 4674051 (N.D. Ill. Dec. 4, 2009) .............................. 21 vi Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223 (S.D. Cal. 2007) .............................................................. 20 Ragsdale v. Mount Sinai Med. Ctr. of Miami, 770 So. 2d 167 (Fla. Dist. Ct. App. 2000) .......................................................... 20 Rodriguez v. Lab. Corp. of Am. Holdings, 13 F. Supp. 3d 121 (D.D.C. 2014) ...................................................................... 20 Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144 (N.D.N.Y. 1997) ..................................................................... 21 Sharpe v. St. Luke’s Hosp., 821 A.2d 1215 (Pa. 2003) ................................................................................... 20 Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 522 N.Y.S.2d 343 (3d Dep’t 1987) ............................................................... 30, 35 Siotkas v. LabOne, Inc., 594 F. Supp. 2d 259 (E.D.N.Y. 2009) ................................................................ 21 Solomon v. New York, 66 N.Y.2d 1026 (1985) ................................................................................. 15, 26 Spiker v. Sanjivan PLLC, No. CV-13-00334-PHX-GMS, 2013 WL 5200209 (D. Ariz. Sept. 16, 2013) ....................................................................................................... 21, 26 Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659 (2d Dist. 1995) ................................................................... 21 Teller v. Prospect Heights Hosp., 280 N.Y. 456 (1939) ..................................................................................... 37, 38 Warshaw v. Concentra Health Servs., 719 F. Supp. 2d 484 (E.D. Pa. 2010) .................................................................. 20 Webster v. Psychmedics Corp., No. 2010-01087-COA-R3-CV, 2011 WL 2520157 (Tenn. Ct. App. June 24, 2011) ..................................................................................................... 20 Williams v. Amtrak, 16 F. Supp. 2d 178 (D. Conn. 1998) ................................................................... 20 vii Statutes 42 U.S.C. § 1983 ...................................................................................................... 10 Federal Aviation Act ................................................................................................ 24 Omnibus Transportation Employee Testing Act of 1991 ........................................ 30 Other Authorities 49 C.F.R. Part 40 ...................................................................................................... 30 49 C.F.R. § 40.27 ..................................................................................................... 38 49 C.F.R. § 40.33(a) ........................................................................................... 27, 30 49 C.F.R. § 40.121(b)(3) .................................................................................... 27, 30 49 C.F.R. § 40.123 ....................................................................................... 31, 32, 33 49 C.F.R. § 40.123(a) ............................................................................................... 30 49 C.F.R. § 40.123(d) ........................................................................................ 32, 34 49 C.F.R. § 40.123(e) ......................................................................................... 31, 33 49 C.F.R. § 40.151 ............................................................................................. 31, 35 49 C.F.R. § 40.151(b) .............................................................................................. 35 49 C.F.R. § 40.191(a)(2) ...................................................................................... 8, 36 49 C.F.R. § 40.193 ................................................................................................... 35 49 C.F.R. § 40.193(b)(3) .......................................................................................... 36 49 C.F.R. § 40.355(i) ......................................................................................... 31, 34 49 C.F.R. § 40.355(o) .............................................................................................. 34 Federal Rules of Civil Procedure Rule 54(b) ........................................................... 11 viii CERTIFIED QUESTIONS 1. Whether drug testing regulations and guidelines promulgated by the FAA and DOT create a duty of care for drug testing laboratories and program administrators under New York negligence law.1 2. Whether a plaintiff may establish the reliance element of a fraud claim under New York law by showing that a third party relied on a defendant’s false statements resulting in injury to the plaintiff. 1 Pasternack has requested that the First Certified Question be reframed to address whether the common law duty of care recognized in Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1 (2013) applies to FAA-mandated drug tests, and, if yes, whether the FAA and DOT regulations and guidelines supply the relevant standards. (App. Brf. at 6, 21-26.) As set forth in Argument Section I, infra, LexisNexis opposes this request. Although LexisNexis does not object to the First Certified Question as written, LexisNexis has proffered an alternative Question should the Court wish to reformulate it. INTRODUCTION The instant litigation seeks redress for the consequences that befell Plaintiff- Appellant Fred Pasternack (“Pasternack”), a physician and part-time air pilot, after he left a drug testing site without producing a sufficient urine sample and was deemed to have refused to take a random drug test. Defendant LabCorp conducted the drug test and submitted a chain-of-custody form (“CCF”) to LexisNexis’ Medical Review Officer (“MRO”) stating, in relevant part, that Pasternack left the drug testing site and then returned. Thereafter, LexisNexis’ MRO determined that, based on the CCF, Pasternack refused to submit to a drug test because he left the collection site before the test was completed, and notified Pasternack’s employer and the Federal Aviation Administration (“FAA”) regarding the same. Pasternack alleges that LabCorp engaged in negligent conduct when it purportedly failed to follow U.S. Department of Transportation (“DOT”) regulations and guidelines pertaining to “shy bladder” scenarios and failed to tell Pasternack about the consequences of leaving the facility. Separately, Pasternack claims that LexisNexis’ MRO engaged in negligent conduct when he failed to follow two DOT regulations that allegedly prohibited the MRO from reporting the refusal to test and required him to conduct an investigation regarding such. Despite LabCorp’s and LexisNexis’ vastly different roles in this case, Pasternack attempts to comingle their actions into a single “drug test 2 administrator” role in arguing that this Court’s decision in Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1 (2013) controls and establishes that both parties had a duty of care to test subjects. (App. Brf. at 26-27 n.10.) The use of the singular term “drug test administrator,” however, merely constitutes Pasternack’s intentional distortion of the scope of the 2013 Landon decision. Landon simply stands for the proposition, under the circumstances presented, that a drug testing laboratory has a duty to a test subject to adhere to professionally accepted testing standards. Contrary to Pasternack’s repeated assertion, by no means should the Court’s finding that a laboratory owes a duty to apply proper testing procedures extend to a MRO’s conclusion that an employee’s departure from a drug testing facility constitutes a refusal to test, as is the situation here. Accordingly, Pasternack has failed to identify a single binding case, regulation, guideline, public policy consideration, or industry standard that stands for the proposition that MROs owe test subjects a duty of care. Indeed, a finding that MROs have a duty of care to test subjects would represent a significant extension of precedent. For these reasons and those stated below, the Court should determine that MROs do not owe a duty of care to test subjects. Lastly, given the inapplicability of Landon to Pasternack’s claims against LexisNexis, the Court should reject Pasternack’s attempt to reformulate the First Certified Question. Rather, the Second Circuit’s First Certified Question is 3 appropriate as drafted. To the extent the Court may wish to reframe the First Certified Question, LexisNexis respectfully requests the Court to reformulate it to solely address the MRO’s actions at issue in this litigation. Even if the Court declines to reformulate the First Certified Question, however, there is no support for Pasternack’s claim that DOT regulations support the creation of a duty of care for MROs. STATEMENT OF FACTS I. THE PARTIES Pasternack is a physician and part-time pilot. (A51 ¶¶5-6, A116 ¶3.) Pasternack became a licensed pilot in 1965. (A51 ¶6, A118 ¶11.)2 Pasternack has been an attending physician at Lenox Hill Hospital in New York since 1979. (A51 ¶5, A117 ¶8.) In 1978, Pasternack was designated as a Senior Aviation Medical Examiner (“AME”), which permitted him to perform medical examinations of pilots as required by the FAA. (A51-A52 ¶8, A118 ¶10.) Pasternack also worked for Northeastern Aviation Corporation (“Northeastern”) for decades, piloting chartered flights. (A52 ¶9, A118 ¶11.) 2 Discovery has not commenced in this case. Accordingly, LexisNexis accepts the factual allegations set forth in Pasternack’s Amended Complaint and Proposed Second Amended Complaint as true solely for the purposes of this brief. 4 LexisNexis 3 provides, among other things, drug testing administration programs to both governmental and private entities. (A52 ¶12, A116 ¶4.) LabCorp provides, among other things, specimen collection and laboratory drug testing services to private entities. (A53 ¶15, A117 ¶5.) II. CONTRACTS RELATING TO NORTHEASTERN, LEXISNEXIS, AND LABCORP Northeastern entered into a contract with LexisNexis for LexisNexis to help administer Northeastern’s drug testing program, including performing the functions of a MRO as a service agent for Northeastern. (A119 ¶16.) 4 Additionally, LabCorp entered into a contract with LexisNexis to perform specimen collection and testing services for Northeastern. (A119-A120 ¶17.) III. PASTERNACK LEFT A DRUG TESTING FACILITY BEFORE HE PRODUCED A SUFFICIENT URINE SPECIMEN On June 1, 2007, Northeastern notified Pasternack that he had been selected for random drug testing. (A52 ¶11, A120 ¶18.)5 On June 5, 2007, Pasternack went 3 Reed Elsevier Inc. acquired ChoicePoint Inc. and all of its subsidiaries in September 2008. In connection with this transaction, ChoicePoint’s drug testing services were offered by the entity known as LexisNexis Occupational Health Solutions Inc. 4 Pasternack’s assertion that LexisNexis “administer[ed] the [drug testing] program as a whole” (App. Brf. at 7) is a distortion of his own allegations and a misguided attempt to impose a duty on LexisNexis based on an exaggerated interpretation of the duty of care found to exist by the Court in Landon. 5 There is no factual support for Pasternack’s claim that he piloted airplanes for Northeastern and an aerial advertising business at the time of his drug test in 2007. (App. Brf. at 6; A167 ¶10.) To the contrary, Pasternack’s Second Amended Complaint clearly states that “he was not piloting airplanes under Part 135 of the Federal Aviation Regulations (14 C.F.R. Part 135) or performing any other safety-sensitive function for Northeastern” as of June 1, 2007. (A168 ¶16.) 5 to LabCorp’s collection site at approximately 1:10 p.m. with a pre-printed CCF that Northeastern had given to him, as required by DOT regulations. (A53 ¶14, A120 ¶19.) After Pasternack submitted a urine sample to Theresa Montalvo, a LabCorp collection worker, Montalvo told Pasternack that he had not produced a sufficient amount of urine and instructed him to wait in the waiting area. (A53 ¶17, A120- A121 ¶¶20, 22.) Pasternack initially went to the waiting area, but he had an appointment with a patient and did not think it was likely that he would be able to produce a sufficient urine sample before his appointment. (A53 ¶18, A121 ¶23.) Pasternack informed Montalvo that he would need to leave but would return later to provide the urine sample. (A53 ¶18, A121 ¶24.) Montalvo advised Pasternack that she would need to notify Northeastern that he was leaving the collection site, and Pasternack responded that she was free to contact Northeastern and that he would be back the following morning. (A54 ¶19, A121 ¶24.) Pasternack then left the LabCorp facility. (A54 ¶19, A122 ¶27.)6 Pasternack claims that – despite his 30 years of experience as an AME for the FAA – he “did not know that leaving the collection site after failing to provide 6 Given that Pasternack left the LabCorp facility without producing a sufficient amount of urine, Pasternack’s unsupported claim that he appeared and “cooperated with the test” should be disregarded. (App. Brf. at 1.) 6 a sufficient sample could constitute a refusal to test,” and that had he known of “the consequences of departing the facility, [he] would have not left… until he either had provided a sufficient urine sample or had otherwise complied with the shy bladder procedures” in accordance with the DOT guidelines. (A118 ¶10, A120-A122 ¶¶21, 26.) Later that same day at approximately 4:00 p.m., Pasternack returned to LabCorp. (A54 ¶20, A122 ¶28.) Montalvo spoke to the General Manager for Northeastern, who authorized Montalvo to take a second urine sample from Pasternack. (A54 ¶20, A122 ¶28.) Pasternack provided a sufficient quantity of urine for the second sample. (A54 ¶21, A122 ¶29.) Montalvo noted on the CCF that Pasternack left and returned to the collection site, and that Northeastern approved the second collection. (A76-A77 ¶¶161-62, A122 ¶28, A124 ¶36.)7 Pasternack’s specimen tested negative for prohibited drugs. (A54 ¶21, A123 ¶31.) IV. A MRO DETERMINED THAT PASTERNACK REFUSED TO SUBMIT TO A DRUG TEST BECAUSE HE LEFT THE COLLECTION SITE BEFORE THE TEST WAS COMPLETED Pasternack’s test results and the CCF were sent to Dr. Melvin Samuels, a MRO employed by LexisNexis, for his review. (A54 ¶22, A123 ¶31.) Dr. Samuels determined that Pasternack had refused to submit to a drug test because he 7 Montalvo did not note Pasternack’s alleged “temporary departure” on the CCF. (App. Brf. at 15; A171 ¶¶26, 29.) Rather, Montalvo noted that Pasternack had “left and returned.” (A171 ¶26.) 7 left the collection site before the test was completed. (A54-A55 ¶22, A124 ¶35.) Pasternack alleges that LexisNexis “made this determination based on the isolated portion of [] Montalvo’s notation on the CCF that [Pasternack] had left and returned.” (A124 ¶36.) LexisNexis asked Montalvo to complete a Memorandum for the Record. (A78 ¶175, A124 ¶36.) On June 15, 2007, LexisNexis submitted a form to Northeastern reporting that Pasternack was a “refusal to test.” (A55 ¶24, A125 ¶38.) 8 Upon information and belief, LexisNexis also notified the FAA that Pasternack purportedly refused a drug test. (A125 ¶40.) The FAA sent two investigators to interview Montalvo regarding the circumstances of Pasternack’s test. (A125 ¶41.) In November 2007 and February 2008, the FAA revoked all of Pasternack’s airman certificates and terminated Pasternack’s AME designation for his “refusal to submit to a random drug test.” (A56 ¶25, A126-A127 ¶45.) V. PASTERNACK’S CHALLENGE TO THE FAA’S ACTIONS Pasternack appealed the termination of his AME designation, which was denied. (A56 ¶26.) He also challenged the FAA’s revocation of his airman certificates, and obtained a hearing before an administrative law judge (“ALJ”). (A56 ¶26, A127 ¶46.) The ALJ and the National Transportation Safety Board (“NTSB”), however, upheld the revocation. (A56 ¶26, A127 ¶46.) Pasternack 8 This case does not involve a “false positive drug test report,” contrary to Pasternack’s claims. (App. Brf. at 1.) 8 then appealed the NTSB’s determination to the United States Court of Appeals for the District of Columbia. (A56 ¶26, A127 ¶46.) The D.C. Circuit found that the NTSB’s determination was not supported by substantial evidence, vacated the decision, and remanded to the NTSB. (A56 ¶26, A127 ¶46); Pasternack v. NTSB, 596 F.3d 836, 838-39 (D.C. Cir. 2010).9 On September 2, 2010, the NTSB remanded the case to Chief ALJ William E. Fowler to make, clarify, and expound upon credibility determinations, findings of fact, and conclusions of law. (A214-A227.) In an April 8, 2011 decision, the ALJ affirmed the FAA administrator’s order revoking Pasternack’s airman certificates, concluding that he had “refused to take a DOT drug test under the provisions of 49 C.F.R. § 40.191(a)(2)” and “by virtue of his refusal… has demonstrated that he lacks the qualifications required to hold, and exercise the privileges of, any certificate or rating issued under [Federal Aviation Regulations] Part 61.” (A229-A250.) The NTSB affirmed the ALJ’s April 8, 2011 decision in all respects and denied Pasternack’s petition for review on February 13, 2012. Huerta v. 9 The NTSB did not affirm the ALJ’s findings in favor of the FAA “primarily” on Montalvo’s testimony that Pasternack “rushed” out of the facility before she could explain the DOT Regulations and Guidelines, contrary to Pasternack’s claim. (App. Brf. at 17.) In fact, the NTSB also considered that the ALJ found no fatal flaw in how the testing process was conducted based, in part, on testimony from LexisNexis’ MRO and chief MRO. (A211.) Likewise, the NTSB relied on the ALJ’s credibility determination against Pasternack’s contention that he was not told by LabCorp personnel, and did not perceive, that he could not leave the LabCorp facility before he completed the collection process. (Id.) 9 Pasternack, Docket SE-18133RM, NTSB Order No. EA-5615, 2012 NTSB LEXIS 4, at *32-33 (N.T.S.B. Feb. 13, 2012). In a March 22, 2013 summary order, however, the D.C. Circuit reversed the NTSB’s decision, vacated its order, and granted the petition for review. Pasternack v. Huerta, 513 F. App’x 1, 2 (D.C. Cir. 2013).10 Thereafter, Pasternack claims that the FAA “reinstated [his] airman’s certificates and AME designation and expunged his record of any reference to a drug test refusal.” (App. Brf. at 19.) VI. PROCEDURAL HISTORY On June 3, 2010, Pasternack filed his initial Complaint against LabCorp and LexisNexis in the United States District Court for the Southern District of New York, in which he brought eleven separate causes of action. (A14-A49.) In Pasternack’s initial Complaint, he brought claims for fraud and negligence against LexisNexis. (A42-A47.) On August 5, 2010, LexisNexis submitted a request for a pre-motion conference seeking leave to file a motion to dismiss Pasternack’s claims against LexisNexis. (Case No. 10-cv-4426 (S.D.N.Y.), Dkt. No. 40 pp. 16- 18.) In that request, LexisNexis outlined various deficiencies in Pasternack’s Complaint. (Id.) In response, Pasternack filed an Amended Complaint on August 13, 2010 in which he asserted four separate claims against LexisNexis: Count X 10 In accordance with Section 500.1(h) of the Rules of Practice of the Court of Appeals of the State of New York, copies of cited decisions that are not officially published are attached in LexisNexis’ Compendium herein. 10 for fraud, Count XI for general negligence, Count XII for gross negligence, and Count XIII for violating 42 U.S.C. § 1983. (A50-A88.) On October 15, 2010, LexisNexis filed a Motion to Dismiss Counts X, XI, XII and XIII of Pasternack’s Amended Complaint. (Case No. 10-cv-4426 (S.D.N.Y.), Dkt. Nos. 16-17.) On August 1, 2011, United States District Court Judge Paul G. Gardephe granted LexisNexis’ motion and dismissed all claims asserted by Pasternack against LexisNexis in his Amended Complaint. (A89- A114.) Accordingly, the District Court directed the Clerk of Court “to terminate [LexisNexis] as a defendant.” (A114.) On August 3, 2011, Pasternack submitted a letter to the Court asking for leave to replead and amend his Amended Complaint. During a status conference on August 5, 2011, the Court granted Pasternack permission to file a motion for leave to file a Second Amended Complaint. On September 23, 2011, Pasternack filed his Notice of Motion and Memorandum of Law in Support of His Motion to File a Second Amended Complaint. (Case No. 10-cv-4426 (S.D.N.Y.), Dkt. No. 30.) In an attempt to cure the various deficiencies in his prior pleadings, Pasternack proposed to bring two claims against LexisNexis in his Second Amended Complaint, negligence and gross negligence. (A132-A135.) Only LexisNexis opposed Pasternack’s motion. (Case No. 10-cv-4426 (S.D.N.Y.), Dkt. No. 34; A140.) 11 On September 6, 2012, District Court Judge Paul G. Gardephe denied Pasternack’s motion to file a Second Amended Complaint as it related to LexisNexis. (A139-A163.)11 On September 12, 2012, Pasternack filed his Second Amended Complaint against LabCorp. (A164-A182.) On June 5, 2013, LabCorp filed a motion to dismiss Pasternack’s Second Amended Complaint. (Case No. 10- cv-4426 (S.D.N.Y.), Dkt. Nos. 56-58.) On October 24, 2013, Pasternack filed a motion pursuant to Rule 54(b) of the Federal Rules of Civil Procedure for reconsideration of the District Court’s August 1, 2011 and September 6, 2012 decisions relating to LexisNexis. (Case No. 10-cv-4426 (S.D.N.Y.), Dkt. Nos. 62-63.) Pasternack sought to extend the limited holding in the Court’s 2013 Landon decision to the situation at bar, thus resurrecting his negligence claims against LexisNexis. (Case No. 10-cv-4426 (S.D.N.Y.), Dkt. No. 63 pp. 6-7, 13-23.) On September 29, 2014, District Judge Paul G. Gardephe denied Pasternack’s motion for reconsideration, and granted LabCorp’s motion to dismiss the Second Amended Complaint. (A251-A287.) In its Memorandum Opinion and Order, the District Court ruled, in relevant part, that the Court of Appeals’ decision 11 Pasternack claims that the District Court dismissed his negligence claims despite the Court’s 2013 ruling in Landon that drug test laboratories owe their test subjects a common law duty of care. (App. Brf. at 2.) This is but one of many factual inaccuracies in Pasternack’s brief. The District Court dismissed Pasternack’s negligence claims and denied Pasternack’s motion to file a Second Amended Complaint as it related to LexisNexis before this Court issued the Landon decision. (A89-A114, A139-A163.) 12 in Landon did not constitute an “intervening change in the law” warranting consideration of the District Court’s prior orders. (A271.)12 The Clerk of Court entered a judgment on September 30, 2014, and closed Pasternack’s case. (A288- A289.) On October 29, 2014, Pasternack timely appealed the District Court’s decision. (A290.) On November 17, 2015, the Second Circuit reserved decision and certified two questions of law to this Court. (A314-A315.) The Second Circuit amended its opinion on November 23, 2015. (A292.) On December 17, 2015, this Court accepted the Second Circuit’s certified questions of law. (A316- A317.) ARGUMENT I. POINT I. – THE COURT SHOULD REJECT PASTERNACK’S REQUEST TO REFORMULATE THE FIRST CERTIFIED QUESTION13 The Second Circuit’s First Certified Question is as follows: [W]hether drug testing regulations and guidelines promulgated by the FAA and DOT create a duty of care for drug testing laboratories and program administrators under New York negligence law. 12 Contrary to Pasternack’s claim, the District Court did not rule that “negligence claims under New York law cannot be ‘premised solely’ on an alleged violation of federal regulations or guidelines.” (App. Brf. at 19; A271.) Rather, the District Court ruled that Landon did not address the issue of whether negligence claims under New York law can be premised solely on an alleged violation of federal regulations or guidelines and, thus, did not constitute an “intervening change in the law” warranting reconsideration of the District Court’s prior orders. (A271.) 13 The Second Certified Question relates to fraud, a claim that is only pending against LabCorp. Accordingly, LexisNexis solely addresses the First Certified Question herein. 13 (A314.) Pasternack has requested the Court to modify the First Certified Question to the following: Whether the common-law duty of care that this Court recognized in Landon – that drug testing laboratories and program administrators owe each test subject a duty “to perform his drug test in keeping with relevant professional standards” – applies to FAA-mandated drug tests, and, if so, whether the FAA and DOT regulations and guidelines supply the relevant standards. (App. Brf. at 6, 26.) Given the inapplicability of Landon to MROs, the Court should reject Pasternack’s request to modify the First Certified Question for review with respect to his negligence claims against LexisNexis. (App. Brf. at 5, 21-26.) 14 As further discussed in Section II(A), infra, Landon makes no reference to MROs and, thus, does not state that MROs owe a duty to care of test subjects. The Court should not credit Pasternack’s distorted view of the scope of Landon by accepting his proposed reformulated question. LexisNexis does not object to the Second Circuit’s First Certified Question as written. Should the Court wish to reformulate the First Certified Question, however, LexisNexis proposes that the Question be reformulated to individually address LabCorp’s and LexisNexis’ differing conduct. As currently framed, the First Certified Question presents an overbroad view of the purported duties of care at issue, and does not specify the particular actions by LexisNexis’ MRO that 14 LexisNexis offers no opinion as to whether the Court should accept Pasternack’s reformulated question with respect to LabCorp’s role in this litigation. 14 Pasternack challenges through his negligence claims (i.e., LexisNexis MRO’s report regarding Pasternack’s refusal to test and the MRO’s alleged failure to investigate the facts surrounding the refusal to test). (App. Brf. at 15-16.) Given that Pasternack is required to show that LexisNexis owed a “specific duty” to him, the First Certified Question could be reformulated to address the particular actions at issue. In re New York City Asbestos Litig., 5 N.Y.3d 486, 493 (2005) (“A specific duty is required because otherwise, a defendant would be subjected ‘to limitless liability to an indeterminate class of persons conceivably injured’ by its negligent acts”). Additionally, the Court may wish to reformulate the First Certified Question to address the fact that although DOT regulations do not independently create a duty of care, a negligence claim can be supported by DOT regulations. Given these considerations, LexisNexis proposes the following reformulated question with respect to the First Certified Question: Whether a duty of care exists under New York law with respect to Medical Review Officers’ investigation and reporting of “refusal to test” results in accordance with standards set forth in drug testing regulations promulgated by the DOT.15 Even if the Court declines to accept LexisNexis’ reformulated question, however, there is no case law, public policy consideration, or industry practice 15 Given that Pasternack does not allege that LexisNexis negligently failed to follow any DOT guidelines or FAA regulations or guidelines, LexisNexis omits any reference to DOT guidelines or FAA regulations or guidelines in its proposed reformulated question. 15 demonstrating that MROs owe test subjects a duty of care in accordance with DOT regulations under New York negligence law, as set forth below. See Section II, infra. II. POINT II. – MROS DO NOT OWE TEST SUBJECTS A DUTY OF CARE To establish a prima facie case of negligence, a plaintiff must show that: (1) the defendant owed a duty to him; (2) the defendant breached that duty; and (3) an injury proximately resulted from that breach. Solomon v. New York, 66 N.Y.2d 1026, 1027 (1985). “Absent a duty of care, there is no breach, and without breach there can be no liability.” Pasquaretto v Long Island Univ., 964 N.Y.S.2d 599, 601 (2d Dep’t 2013). The existence of a legal duty presents a question of law for the court. Eiseman v. State, 70 N.Y.2d 175, 189 (1987). In order to establish a duty of care, the plaintiff “must show that a defendant owed not merely a general duty to society but a specific duty to him.” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2011); Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000) (“[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm”). As discussed in Hamilton: Courts traditionally fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. 16 96 N.Y.2d at 232 (internal quotations omitted). While moral and logical judgments are significant components of the duty of care analysis, New York courts are “also bound to consider the larger social consequences of [its] decisions and to tailor [its] notion of duty so that the legal consequences of wrongs [are limited] to a controllable degree.” Eiseman, 70 N.Y.2d at 187 (internal quotations omitted). Evidence of industry practices and standards may also demonstrate a duty of care. Phillips v. McClellan St. Assocs., 691 N.Y.S.2d 598, 599 (3d Dep’t 1999) (affirming summary judgment for defendant on plaintiffs’ negligence claims when plaintiffs relied on conclusory assertions as to relevant industry standards). Pasternack claims that LexisNexis breached its duty of care to investigate and report his drug test results with reasonable care as measured by specific DOT regulations. (App. Brf. at 1-3, 15-16, 20-21.) There is not a single binding case, public policy consideration, or industry practice establishing, however, that MROs like LexisNexis owe test subjects a duty of care. Accordingly, as demonstrated below, this Court should determine that DOT drug testing regulations do not support or establish a duty of care for MROs under New York negligence law. 17 A. The 2013 Landon Decision Does Not Establish That MROs Owe Test Subjects A Duty of Care Under New York Common Law 1. The 2013 Landon Decision In Landon, the plaintiff was subject to mandatory drug testing as part of the conditions for his probation, and brought suit against the drug testing laboratory, Kroll, for negligently conducting his drug test and subsequently reporting an erroneous positive test result. 22 N.Y.3d at 3-5. In affirming the appellate court’s finding that the plaintiff stated a cause of action against the drug testing laboratory, even in the absence of a contractual relationship between the parties, the Court emphasized the “strong policy-based considerations” in favor of finding that Kroll owed a duty to the plaintiff under these circumstances, where the plaintiff “faced the loss of freedom associated with serving an extended period of probation.” Id. at 6-7. The Court’s finding was centered on its view that Kroll, in its role as a drug testing laboratory, had a duty to perform the drug test “in keeping with relevant professional standards” and was in the best position to prevent false positive results, and the lack of a contract between Kroll and the plaintiff did not immunize Kroll from liability where its mistake allegedly caused the plaintiff the severe harm of the loss of his freedom. Id. 2. Neither Landon Nor Any Other Case Establishes A Duty Of Care Regarding MRO Duties Throughout this litigation, Pasternack has repeatedly tried to stretch the Court’s decision in Landon to cover the role of LexisNexis’ MRO. (App. Brf. at 18 20-21, 27-29.) As correctly noted by the District Court, however, Landon has no application to the MRO actions at issue in this litigation. (A158) (stating that the Supreme Court’s decision in Landon v. Kroll Laboratory Specialists, Inc., 934 N.Y.S.2d 183 (2d Dep’t 2011) was not applicable to Pasternack’s claims because it involved improper testing, a “classic example[] of negligence”); (A271) (“The underlying conduct at issue in [the Court’s 2013 Landon decision] – the misapplication of industry-wide drug testing standards resulting in a false positive result – remains a ‘classic example[] of negligence.’ [LexisNexis’] alleged negligence, however, does not relate to a violation of industry-wide standards for specimen evaluation”) (internal citations omitted). Notably, Landon makes absolutely no reference to MROs’ purported duty to perform their services with reasonable care. (App. Brf. at 3, 6, 20, 26-27.) To the contrary, Landon only focuses on the duty of care assigned to drug testing laboratories. 22 N.Y.3d at 6-7. Indeed, Pasternack appears to concede this point given his admission that “this Court has already recognized that drug testing laboratories owe their test subjects a duty of care grounded in the common law” in accordance with Landon. (App. Brf. at 21 (emphasis added); see also App. Brf. at 20 (“[t]his Court expressly recognized this broad duty in Landon, where it held that a test subject can sue for negligence when a laboratory fails to perform its drug testing duties in accordance with the relevant professional standards”) (emphasis 19 added); see also App. Brf. at 23 (Landon “explain[s] the ‘strong policy-based considerations’ for recognizing a drug tester’s duty of care to its test subjects”) (emphasis added).)16 In fact, the Court in Landon made clear that its finding regarding a duty of care owed by Kroll to the plaintiff was “under these circumstances,” namely a drug testing laboratory’s failure to adhere to professionally accepted testing standards that had the consequence of extending a test subject’s probation sentence. Landon, 22 N.Y.3d at 6-7 (emphasis added).17 Moreover, unlike the plaintiff in Landon, Pasternack does not allege that LexisNexis failed to adhere to industry-wide drug testing standards resulting in a false positive test. Rather, Pasternack alleges that LexisNexis breached its purported duty to him by failing to comply with two DOT regulations concerning reporting and investigating “refusal to test” results. (App. Brf. at 15-16.) As the District Court correctly concluded, the 2013 Landon decision does “not address the issue of whether negligence claims under New York law can be premised solely on 16 Landon does not stand for the broad proposition that the applicable standard of care in all drug testing cases is “in keeping with relevant professional standards.” (App. Brf. at 37.) As discussed in Landon, this standard of care only applies to the role of drug testing laboratories. 22 N.Y.3d at 10. 17 Contrary to Pasternack’s claim, the dissent in Landon did not affirmatively state that the duty of care should be limited to cases involving “specific, narrow allegations of active negligence by the testing laboratory, such as mishandling, misidentifying or improperly collecting the specimen.” (App. Brf. at 29 n.11.) Rather, the Landon dissent merely utilized this language when referring to case law cited by the majority. Landon, 22 N.Y.3d at 10. 20 an alleged violation of federal regulations or guidelines.” (A271.) Given that Landon does not address the specific facts at issue in this case, it is inapplicable. Additionally, relying on a lengthy list of string citations from other jurisdictions, Pasternack attempts to apply the duty of care assigned to laboratories, as set forth in Landon, to the separate actions of MROs. (App. Brf. at 29-30, 32- 33.) Not a single cited case, however, demonstrates that MROs owe their test subjects a common law duty of care in reviewing drug test results. (Id.) Rather, like Landon, all of the cited cases focus on the mishandling of specimens or other improper testing practices – classic examples of negligence – not duties owed by physicians who review employees’ refusal to test results in their capacity as MROs. (Id.)18 18 King v. Garfield Cnty. Pub. Hosp. Dist. No. 1, 17 F. Supp. 3d 1060, 1068-69, 1071-73 (E.D. Wash. 2014) (negligence claim based on improper testing procedures); Rodriguez v. Lab. Corp. of Am. Holdings, 13 F. Supp. 3d 121, 125-26 (D.D.C. 2014) (same); Warshaw v. Concentra Health Servs., 719 F. Supp. 2d 484, 505-06 (E.D. Pa. 2010) (same); Garlick v. Quest Diagnostics, Inc., No. 06-cv-6244 (DMC), 2009 WL 5033949, at *2, 9 (D.N.J. Dec. 14, 2009) (negligence claim based on report and interpretation of test results at arbitrarily set cutoffs as sole proof of professional alcohol abuse; determining that Texas law would decline to find a duty of care applicable to the defendants); Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223, 1226 (S.D. Cal. 2007) (negligence claim based on low reporting limit for alcohol testing); Baker v. Abo, No. Civ. 01-1248 JRTJSM, 2003 WL 21639151, at *1 (D. Minn. July 2, 2003) (negligence claim based on improper testing procedures); Williams v. Amtrak, 16 F. Supp. 2d 178, 180 (D. Conn. 1998) (same); Webster v. Psychmedics Corp., No. 2010-01087-COA-R3- CV, 2011 WL 2520157, at *1-2 (Tenn. Ct. App. June 24, 2011) (same); Berry v. Nat’l Med. Servs., Inc., 205 P.3d 745, 748-49 (Kan. Ct. App. 2009) & Berry v. Nat’l Med. Servs., Inc., 257 P.3d 287, 289-90 (Kan. 2011) (negligence claim based, in relevant part, on report and interpretation of test results at arbitrarily set cutoffs as sole proof of alcohol abuse); Sharpe v. St. Luke’s Hosp., 821 A.2d 1215, 1217 (Pa. 2003) (negligence claim based on improper testing procedures); Ragsdale v. Mount Sinai Med. Ctr. of Miami, 770 So. 2d 167, 168 (Fla. Dist. Ct. App. 2000) (same); Duncan v. Afton, Inc., 991 P.2d 739, 740 (Wyo. 1999) (same); Lynn v. Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002, 1003-04 (Fla. Dist. Ct. App. 1997) (same); 21 For example, Pasternack repeatedly claims that Drake v. Laboratory Corp. of America Holdings, No. 02-CV-1924 (FB) (RML), 2007 WL 776818, at *2-3 (E.D.N.Y. Mar. 13, 2007) establishes that “New York would recognize a common- law duty of care on the part of drug test administrators who administered” FAA- and DOT-related drug tests. (App. Brf. at 30, 32.) The negligence claim at issue in Drake, however, only related to the mishandling of a urine specimen, and not the overreaching duty of care that Pasternack is attempting to create for MROs. 2007 WL 776818, at *2-3. Thus, despite Pasternack’s efforts to comingle the duty of care applicable to laboratories with the responsibilities of MROs, Pasternack has failed to identify a single binding case standing for the proposition that a common law duty of care for MROs exists under New York law. Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 660 (2d Dist. 1995) (same); Elliott v. Lab. Specialists, Inc., 588 So. 2d 175, 175 (La. Ct. App. 1991) (same); Lewis v. Aluminum Co. of Am., 588 So. 2d 167, 168-69 (La. Ct. App. 1991) (same); Siotkas v. LabOne, Inc., 594 F. Supp. 2d 259, 262 (E.D.N.Y. 2009) (same); Coleman v. Town of Hempstead, 30 F. Supp. 2d 356, 357-59 (E.D.N.Y. 1999) (same); Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 146-47 (N.D.N.Y. 1997) (same); Spiker v. Sanjivan PLLC, No. CV-13-00334-PHX-GMS, 2013 WL 5200209, at *1, 9-10 (D. Ariz. Sept. 16, 2013) (same); Phillips v. Quality Terminal Servs., LLC, No. 08-v-6633, 2009 WL 4674051, at *1-4 (N.D. Ill. Dec. 4, 2009) (same); Balistrieri v. Express Drug Screening, LLC, No. 04-C-0989, 2008 WL 906236, at *2-3 (E.D. Wis. Mar. 31, 2008) (negligence claim based on drug testing facility’s alleged effect on the plaintiff’s inability to produce a urine sample); Chapman v. LabOne, 460 F. Supp. 2d 989, 1001 (S.D. Iowa 2006) (negligence claim based on improper testing procedures). 22 3. The New York Supreme Court’s Decision In Braverman Demonstrates The Inapplicability Of Landon To This Case The Supreme Court of New York, Appellate Division’s decision in Braverman v. Bendiner & Schlesinger, Inc., 990 N.Y.S.2d 605 (2d Dep’t 2014) demonstrates the error in Pasternack’s reasoning that the Landon decision establishes that drug testing administrators owe testing subjects a duty of reasonable care throughout the testing process. (App. Brf. at 3, 27, 29, 37.) Specifically, in Braverman, the plaintiffs enrolled in a drug treatment program at defendant Daytop Village, Inc. in accordance with the terms of their conditional supervision contracts with the drug treatment courts. 990 N.Y.S.2d at 607-08. Daytop contracted with defendant Bendiner & Schlesinger, Inc. to perform specified drug testing. Id. at 608. Bendiner performed oral fluid testing on specimens collected by Daytop from the plaintiffs, which tested positive for certain illegal drugs. Id. Bendiner reported the results to Daytop and, at Daytop’s request, performed confirmatory testing. Id. Daytop reported the positive results to the drug testing courts, which resulted in a delay of child custody for one plaintiff and incarceration for the other plaintiff. Id. The plaintiffs filed an action for damages against Bendiner and Daytop, claiming, in relevant part, that Bendiner was required, and failed, to label its oral fluid testing results so as to indicate that the results were to be used for clinical purposes only. Id. at 608-09. The plaintiffs relied on a Ph.D.’s opinion, 23 who averred that the reports of the test results issued by Bendiner were required to include a specific disclaimer. Id. at 609. Affirming the dismissal of the plaintiffs’ complaint, the court ruled that the plaintiffs’ claims constituted an “unwarranted expansion of the duty set forth in Landon” and that Bendiner did not owe a duty of care to the plaintiffs. Id. at 607, 609-11. Specifically, the court ruled that Landon was not applicable because it solely focused on the duty of care regarding the performance of drug testing, which was not at issue in Braverman. Id. at 610-11. Further, the court noted that the plaintiffs could not show that they were denied anything more than a benefit, i.e., a label that would alert attorneys and courts to the inadmissibility of their drug test results. Id. at 611-12.19 Similar to the plaintiffs’ unsuccessful arguments in Braverman, Pasternack cannot establish that LexisNexis owed a duty to him when it provided advice to Northeastern and allegedly the FAA regarding Pasternack’s refusal to test. Like the plaintiffs in Braverman, Pasternack has erroneously attempted to take Landon’s limited ruling regarding the duty of care owed by laboratories for accurate testing procedures and stretch it to encompass every single step of the testing process. Although Pasternack may claim that, unlike the plaintiffs in Braverman, he has 19 Contrary to Pasternack’s claims, Braverman does not stand for the overbroad proposition that federal regulations and guidelines should be used as the standard of care. (App. Brf. at 38.) 24 cited regulatory standards supporting his position, the regulatory authority that Pasternack cites does not, in fact, support his claims. See Section II(C), infra. B. Pasternack’s Public Policy Arguments Do Not Demonstrate That MROs Owe Test Subjects A Duty Of Care Pasternack also asserts that Landon, which relates to drug testing as a condition of an individual’s sentence of probation, should apply equally to FAA- and DOT-related drug tests and other undefined drug tests for public policy reasons. (App. Brf. at 3, 6, 26, 31-32.) Pasternack ignores the fact, however, that Landon merely relates to the duty of care for laboratories, and not MROs. See Section II(A), supra. Thus, Pasternack’s argument puts the cart before the horse with respect to his negligence claims against LexisNexis - it is irrelevant whether Landon applies equally to FAA- and DOT-related drug tests given that Landon does not apply to MROs’ conduct. Regardless, aside from his inadmissible speculation and conjecture, Pasternack fails to proffer any authority in support of his belief that a duty of care must be directly imposed on MROs for moral, societal, or logical reasons. (App. Brf. at 31-32.) Even assuming that Pasternack bases his theory on DOT guidelines, to permit Pasternack’s claims to proceed solely on the basis of such guidelines would, as the District Court noted, “give test subjects a private right of action for violation of that regulation, cloaked in the form of a state law negligence claim” in essence. (A161 n.7.) Based on the fact that the Federal Aviation Act 25 (“FAAct”) “does not provide a private right of action for violations of FAA drug- testing regulations,” Pasternack must identify a basis in New York law for his claims against LexisNexis. Drake v. Lab. Corp. of Am. Holdings, 458 F.3d 48, 64 (2d Cir. 2006).20 Furthermore, even assuming that the five policy-based factors in Landon have any application to MROs’ conduct (which they do not), such policy factors do not establish that MROs owe a duty of care to test subjects. (App. Brf. at 33-37.) Specifically, Pasternack contends that, in accordance with Landon, LexisNexis is liable to him for “launch[ing] …[a] force or instrument of harm,” and a “false report of a failed FAA or DOT drug test ‘will have profound, potentially life- altering, consequences for a test subject.’” (Id. at 3, 33, 35.) Pasternack further claims that a test administrator is in the “best position” to prevent harm to a test subject. (Id. at 35.) In making these claims, however, Pasternack ignores that the injury to him, the loss of his airman certificates and resulting loss of compensation, was caused by the legal determination of the FAA and the ALJ, reached after the FAA’s investigation of Pasternack’s conduct at the LabCorp collection site, and not by 20 LexisNexis acknowledges that Pasternack has not asserted – and cannot assert – a private right of action under the DOT regulations and guidelines. (App. Brf. at 43-45.) Indeed, such a claim would fail given Pasternack’s complete failure to establish that MROs owe test subjects a duty of care under New York common law in accordance with DOT regulations. See Section II(C), infra. 26 LexisNexis’ minor role and the attenuated relationship between it and Pasternack. Pasternack must demonstrate that he suffered injury as a result of LexisNexis’ conduct. Solomon, 66 N.Y.2d at 1027. Pasternack’s Amended Complaint and Proposed Second Amended Complaint, however, state that the FAA and ALJ – not LexisNexis – made the legal conclusions that Pasternack’s conduct constituted a “refusal to test” under the applicable regulations resulting in his injury. (A56 ¶¶25-26, A126-A127 ¶¶45-46; see also A162.) In relying on Landon for support, Pasternack fails to recognize that the Court in Landon specifically found that the laboratory was “in the best position to prevent false positive results” and the subsequent extension of the plaintiff’s probation, by adhering to widely recognized professional testing standards. Landon, 22 N.Y.3d at 6 (emphasis added). Here, the FAA and the ALJ were in the best position to prevent the loss of Pasternack’s certificates and compensation because it was their legal determinations that caused the alleged injuries to Pasternack.21 21 As discussed in Section II(A), supra, Spiker is not applicable given that it focuses on a negligence claim based on improper testing procedures, not MRO duties relating to a “refusal to test” result. (App. Brf. at 36, 40, 45.) Moreover, contrary to Pasternack’s belief, Spiker does not state that MROs are required to “balance between safety interests and the protection of employees from unfair consequences of the process.” (Id. at 36.) Rather, Spiker states that the Secretary of Transportation attempted to reach such a balance when mandating MRO review. 2003 WL 5200209, at *12. 27 Additionally, although Pasternack claims that LexisNexis’ purported harm to him was “not remote or attenuated,” he fails to cite to any relevant support22 for his conclusory claims that LexisNexis could have reasonably foreseen the negative consequences of its purported negligence due to its familiarity with the DOT regulations or “should have foreseen [] that [its] actions might lead the FAA to revoke Pasternack’s airman certificates.” (App. Brf. at 34-35.) Regardless, the Court in Landon held that the plaintiff suffered harm by the positive test result because it directly caused the extension of his probation and the necessity for him to defend himself in court proceedings. Landon, 22 N.Y.3d at 6. Here, however, Pasternack is missing any causal connection, direct or otherwise, between LexisNexis’ MRO’s review of his test results and the FAA’s decision to revoke his licenses, which resulted in his harm. Indeed, the FAA could have made any determination regarding Pasternack’s licenses upon its investigation of his conduct after receiving his test report. Thus, Pasternack’s argument and additional claim that the “possibilit[y] of danger” entitled him to protection wholly fails. (App. Brf. at 34-35); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 346 (1928) (dismissing plaintiff’s negligence claim when it would have “entail[ed] liability for any and all consequences, however novel or extraordinary”). 22 For the reasons set forth in Section II(C)(1), infra, 49 C.F.R. §§ 40.33(a) and 40.121(b)(3) are inapplicable. (App. Brf. at 34.) 28 Pasternack also asserts that, pursuant to Landon, he should be able to pursue negligence claims against LexisNexis because he has no statutory remedy for his economic injuries, including lost income and the fees and costs he incurred pursuing his administrative remedies. (App. Brf. at 3, 36.) Landon, however, only stated that there was “no apparent statutory remedy for a victim of negligence whose injury was caused by a false positive test,” not for a refusal to test case such as Pasternack’s. Landon, 22 N.Y.3d 1 at 7 (emphasis added). This is but one more example of Pasternack’s improper attempt to stretch the holding of Landon to cover his claims. In summary, despite his repeated attempts, Pasternack has failed to demonstrate that Landon creates a duty of care for MROs or that the duty of care set forth in Landon should be applied equally to FAA- or DOT-mandated tests based on public policy considerations. To the contrary, to hold that MROs owe a duty of care to test subjects could have prodigious implications, opening the floodgates to baseless claims against MROs when a donor’s explanation for his conduct, whether it be leaving a collection site, attempting to provide an adulterated or substituted specimen, failing to sign testing forms, or other disruptive behavior, is rejected by a MRO. See, e.g., Ferguson v. Wolkin, 499 N.Y.S.2d 356, 358 (1986) (in malpractice action, ruling, in relevant part, that physician did not owe plaintiff a duty of care regarding his medical report to 29 plaintiff’s employer due to public policy considerations). Indeed, negligence actions would lie whenever a physician is engaged for expert opinion in any potentially adversarial situation. Id. If a MRO could be held liable for his review and report regarding a laboratory’s test results, few physicians would ever be willing to render such opinions for fear of negligence or malpractice claims. Id. Given that the social consequences of extending the duty of care to MROs would have deleterious results, the Court should decline such an extension. C. Pasternack Cannot Establish A Duty Of Care In Accordance With DOT Regulations 1. There Are No DOT Regulations Supporting Pasternack’s Claim That MROs Owe A Duty To Test Subjects Given the inapplicability of the 2013 Landon decision and the absence of any persuasive public policy factors, the DOT regulations at issue in this litigation provide the only potential remaining support for Pasternack’s claim that MROs owed a duty of care to test subjects. Specifically, Pasternack alleges that FAA and DOT regulations supply the relevant standards for a duty of care. (App. Brf. at 26, 37-40.) Additionally, Pasternack claims that the “FAA’s and DOT’s purposes are self-evident in the particular provisions at issue in [this] case,” and that such regulations and guidelines “prevent MROs from making critical determinations about test subjects that are beyond MROs’ medical expertise.” (Id. at 40 n.14.) 30 The Argument section of Pasternack’s brief, however, fails to pinpoint the specific FAA or DOT regulations or guidelines that support his contentions.23 Instead, Pasternack cites to the Omnibus Transportation Employee Testing Act of 1991 and Federal Register publications that generally explain why the FAA adopted DOT regulations and the purpose for such. (App. Brf. at 10, 15-16, 39-40, 42.) As previously explained, in order to establish a duty of care, a plaintiff “must show that a defendant owed not merely a general duty to society but a specific duty to him.” Hamilton, 96 N.Y.2d at 232. Pasternack’s vague reliance on such generalized materials wholly fails to establish any specific duty of care owed to him. Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 522 N.Y.S.2d 343, 346-47 (3d Dep’t 1987) (dismissing plaintiff’s complaint where plaintiff failed to demonstrate a common law duty of care and did not allege a specific regulatory violation that would have constituted some evidence of negligence); Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1029 (2d Cir. 1995) 23 Unlike Pasternack’s cited authority, Pasternack has failed to provide a single regulation or guideline citation in the Argument section of his brief supporting his claim that MROs owe drug test subjects a duty of care, much less provide an explanation as to why such specific regulations or guidelines support his claims. (App. Brf. at 25-26 & n.9.) 49 C.F.R. § 40.33(a) relates to collectors, not MROs, and 49 C.F.R. § 40.121(b)(3) merely states that MROs must be knowledgeable about and keep current regarding any changes to 49 C.F.R. Part 40, the MRO guidelines, and the DOT agency regulations applicable to the employers for whom MROs evaluate drug test results. (App. Brf. at 34.) Likewise, Pasternack’s reliance on 49 C.F.R. § 40.123(a), which merely states that MROs must act “as an independent and impartial ‘gatekeeper’ and advocate for the accuracy and integrity of the drug testing process,” fails for the reasons set forth below. (App. Brf. at 36.) 31 (affirming summary judgment in defendant’s favor on plaintiff’s negligence claims where plaintiff’s claim that defendant breached a duty of care was too vague). Additionally, Pasternack cites to three specific DOT regulations in his Statement of Facts (i.e., 49 C.F.R. §§ 40.123(e), 40.355(i), and 40.151). (App. Brf. at 15-16.) Given Pasternack’s failure to provide any legal argument as to the applicability of such DOT regulations, his argument should be deemed waived. Muhlhahn v. Goldman, No. 102846/10, 2011 N.Y. Misc. LEXIS 4376, at *29 (N.Y. Sup. Ct. Aug. 18, 2011), rev’d on other grounds, 939 N.Y.S.2d 420 (2012) (refusing to consider argument when it was not support by legal authority). Even assuming that Pasternack’s cited DOT regulations24 can be considered by the Court, the DOT regulations make it abundantly clear that MROs do not owe any duties of any nature to test subjects. Specifically, with respect to 49 C.F.R. § 40.123(e), Pasternack claims that LexisNexis’ MRO should have conducted an investigation regarding his refusal to test. (App. Brf. at 16.) Subsection (a) of Section 40.123 describes general responsibilities that MROs have in connection with DOT drug testing programs. To the extent the responsibilities approach the realm of specific duties owed to any party, they are explicitly set forth in Section 40.123. For example: 24 For ease of review, the relevant DOT regulations relating to MROs’ conduct are included in LexisNexis’ Compendium herewith. 32 (b) Providing a quality assurance review of the drug testing process for specimens under your purview. This includes, but is not limited to: * * * (2) Providing feedback to employers, collection sites and laboratories regarding performance issues where necessary; and (3) Reporting to and consulting with the [Office of Drug and Alcohol Policy Compliance] or a relevant DOT agency when you wish DOT assistance in resolving any program issue. * * * (e) You must act to investigate and correct problems where possible and notice appropriate parties (e.g., HHS, DOT, employers, service agents) where assistance is needed, (e.g., cancelled or problematic tests, incorrect results, problems with blind specimens). (f) You must ensure the timely flow of test results and other information to employers. 49 C.F.R. § 40.123 (emphasis added). Pasternack fails to recognize or deliberately ignores the undisputed fact that there is only one reference to employees in Section 40.123, and this regulation – 49 C.F.R. § 40.123(d) – clearly demonstrates that Pasternack’s assertion that he was owed a duty by LexisNexis’ MRO is without merit as a matter of law. Specifically, Section 40.123(d) states “[w]hile you provide medical review of employees’ test results, this part does not deem that you have established a doctor- patient relationship with the employees whose tests you review.” 49 C.F.R. § 40.123(d). Thus, to the extent Section 40.123 could provide the basis for a duty owed to a specific party, the only plausible conclusion is that a duty is not owed to 33 Pasternack. See, e.g., Drake, 458 F.3d at 53 n.4 (“Federal Regulations require aviation employers to appoint a licensed physician as a MRO to review drug test results on behalf of the employer”) (emphasis added); Medical Ctr. of Cent. Ga., Inc. v. Landers, 274 Ga. App. 78, 82-83 (2005) (ruling that OSHA regulation did not create legal duties running from physicians who perform employment examinations to examinees; because independent physician performing an OSHA- required examination “was a stranger to [plaintiff’s] relationship with his employer, [plaintiff could not] rely on that regulation as the source of a legal duty in his negligence action against” independent physician).25 Moreover, any obligation imposed by 49 C.F.R. § 40.123(e) is too vague to serve as the basis for a negligence action. Indeed, although Section 40.123(e) states that a MRO must “investigate and correct problems where possible and notify appropriate parties (e.g., HHS, DOT, employers, service agents),” there is no reference to employees anywhere in the list of “appropriate parties.” Rather, as noted above, the only reference to “employees” in the entirety of Section 40.123 is 25 See also Keene v. Wiggins, 69 Cal. App. 3d 308, 313-14 (4th Dist. 1977) (affirming dismissal of plaintiff’s malpractice claim, and ruling that where doctor conducts an examination of an injured employee solely for purpose of rating the injury for an employer’s workers’ compensation insurance carrier, the doctor is not liable to the examinee for negligence in making that report); Ney v. Axelrod, 723 A.2d 719, 722 (Pa. Super. Ct. 1999) (court was “not willing to create a theory of liability for negligent doctors or medical laboratories that have contracted with third parties for employment-related testing” because “[s]uch causes of action do not identify a substantial harm to an identifiable and readily discernable class of plaintiffs such that [the court felt] compelled to create liability based on a public policy rationale”); Martinez v. Lewis, 942 P.2d 1219, 1222-23 (Colo. App. 1996) (ruling that because patient did not rely on physician for treatment, care, or advice, physician was not liable for professional negligence regarding the report he prepared for plaintiff’s insurance company). 34 made in 49 C.F.R. § 40.123(d), which is inapplicable. Pasternack’s reliance on 49 C.F.R. § 40.355(i) is equally futile. Pasternack argues that 49 C.F.R. § 40.355(i) prohibited LexisNexis from reporting and making a determination regarding his “refusal to test.” (App. Brf. at 15.) It is plainly obvious, however, that this regulation could not possibly create a duty of care owed to him. In fact, the clear and unambiguous language of Section 40.355(i) states that a determination than an employee has refused a drug test is “a non- delegable duty of the actual employer.” 49 C.F.R. § 40.355(i). Accordingly, Northeastern, as Pasternack’s employer, could not delegate this duty to LexisNexis. Instead, as a service agent, LexisNexis was expressly permitted under 49 C.F.R. § 40.355(i) to “provide advice and information to employers regarding refusal-to-test issues.” Id. This is exactly what LexisNexis did – provide advice to Northeastern regarding Pasternack’s refusal to test. To the extent Pasternack alleges that the determination that he refused to test was incorrect, the regulations provide that “the actual employer remains accountable to DOT for compliance, and [the service agent’s] failure to implement any aspect of the program… makes the employer subject to enforcement action by the Department.” 49 C.F.R. § 40.355(o). Thus, Pasternack has failed to establish that LexisNexis or its MRO owes any legal duty of care to him. 35 Lastly, although Pasternack states that 49 C.F.R. § 40.151 stands for the proposition that a MRO should not make factual determinations that do not depend on its medical knowledge and training, this provision is irrelevant given that it does not form the basis for his negligence claims in his Amended Complaint or proposed Second Amended Complaint. (App. Brf. at 15; A80-A82 ¶¶186-196, A133-A134 ¶¶78, 84.) Moreover, 49 C.F.R. § 40.151 does not support Pasternack’s assertions. Even assuming that Pasternack is referring to § 40.151(b), this provision only limits a MRO’s ability “to make decisions about factual disputes between the employee and the collector concerning matters occurring at the collection site that are not reflected on the CCF.” 49 C.F.R. § 40.151(b) (emphasis added). Pasternack’s claims against LexisNexis do not relate to any factual disputes between Pasternack and LabCorp; rather, his claims are based on the MRO’s decision to solely review comments on the CCF. (A124 ¶36.)26 The DOT regulations, of course, address what is to happen when an employee does not provide a sufficient amount of urine for a drug test. See 49 C.F.R. § 40.193. Section 40.193(b) states that in such situations: 26 Pasternack also alleges in his Statement of Facts that LexisNexis “omitted [] relevant information in its report to the FAA and to Northeastern.” (App. Brf. at 16.) Aside from failing to argue this point in the Argument section of his brief, Pasternack also fails to cite to any regulatory authority or case law establishing that LexisNexis was actually required to disclose additional information, much less establish that LexisNexis had a duty of care to Pasternack with respect to its alleged affirmative obligation to report such facts. Muhlhahn, 2011 N.Y. Misc. LEXIS 4376, at *29; Simon, 522 N.Y.S.2d at 346. 36 *** (b) As the collector, you must do the following: *** (3) If the employee refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is complete, you must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER. This is a refusal to test. 49 C.F.R. § 40.193(b)(3) (emphasis added). At this point, the collection and testing process stops (or should have stopped), and there is no responsibility that flowed to Dr. Samuels and LexisNexis other than to acknowledge what is plainly obvious under the DOT regulations given Pasternack’s uncontroverted admission that he did indeed leave the testing site before providing a sufficient urine specimen. (A54 ¶19, A122 ¶27); see also 49 C.F.R. § 40.191(a)(2) (“As an employee, you have refused to take a drug test if you… [f]ail to remain at the testing site until the testing process is complete”). Thus, Pasternack’s naked assertions of LexisNexis’ purported legal obligations to him under DOT regulations do not provide the Court with a basis under any standard to determine that LexisNexis owed him a duty of care. 37 2. The DOT Regulations And Guidelines Do Not Independently Give Rise To A Duty Of Care Lastly, Pasternack has failed to identify a shred of legal support establishing that the DOT regulations and guidelines, in and of themselves, independently give rise to a duty of care. (App. Brf. at 3-4, 41-43.) To the contrary, it is well-established that a violation of a regulation is not negligence per se but merely “some evidence” of negligence that a jury may consider in rendering its verdict. Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160 (1982) (“[t]his, of course, is reinforced by the principle, long and firmly established in New York, that the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is merely some evidence which the jury may consider on the question of defendant’s negligence”) (internal quotations omitted); Teller v. Prospect Heights Hosp., 280 N.Y. 456, 460-61 (1939) (“[v]iolation of a rule of the Industrial Board … constitutes merely some evidence which the jury may consider on the question of defendant’s negligence, along with other evidence in the case which bears on that subject”).27 Given that Pasternack fails to point to any facts – 27 Pasternack’s reliance on Lopes v. Rostad, McSweeney v. Rogan, and Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicecenter of Haverstraw, Inc. is misplaced. (App. Brf. at 41.) Specifically, as Pasternack admits, the negligent conduct at issue in Lopes was based on a statute, not a regulation. 45 N.Y.2d 617, 623 (1978); (App. Brf. at 41.) Furthermore, the court in McSweeney ruled that the ordinance at issue imposed a duty that could give rise to tort liability given other court rulings regarding similar ordinances. 618 N.Y.S.2d 430, 431 (2d Dep’t 1994). Here, however, Pasternack has failed to identify a single binding court case establishing that DOT regulations impose a duty of care on MROs. Lastly, the court in 38 other than LexisNexis’ purported violation of the DOT regulations – establishing a duty of care, he has failed to establish that MROs owe a duty of care to test subjects. Contrary to Pasternack’s wide-sweeping assertions, Drake, 458 F.3d at 64, does not state that a violation of DOT regulations, standing alone, is sufficient to support a negligence claim in accordance with the FAAct and DOT regulations baring employers and test administrators from requiring employees to waive their civil claims. (App. Brf. at 42-43.) Such a claim would transform Pasternack’s claims from a negligence to a negligence per se theory, which is not permitted for regulatory claims. Long, 55 N.Y.2d at 160; Teller, 280 N.Y. at 460-61. Rather, the court in Drake merely determined that state law claims premised on regulations may survive a preemption claim if they do not substantially “interfere with the consistency and uniformity of the federal regulatory scheme.” 458 F.3d at 63. Likewise, although the FAAct’s “savings clause” and the waiver prohibitions set forth in 49 C.F.R. § 40.27 establish that some negligence claims based on drug testing may be proper, Pasternack has failed to demonstrate that such provisions open the door for plaintiffs to file any negligence claim they desire, including those for which no duty of care applies. (App. Brf. at 12, 42-43, Goodyear determined that the defendant had a duty to comply with fire prevention and building code and OSHA regulations that specifically governed the storage and transport of gasoline. No. 02 Civ. 0504(RCC), 2005 WL 550940, at *3 (S.D.N.Y. Mar. 9, 2005). There are no specific regulations, however, governing MRO’s duty of care to test subjects. 39 45.) As noted by Drake, these provisions only demonstrate that “some tort claims arising from regulated drug testing will be viable.” Drake, 458 F.3d at 61. Given Pasternack’s failure to establish that MROs owe a duty of care to test subjects, his reliance on FAAct and the DOT waiver regulations is mistaken. CONCLUSION Despite Pasternack’s improper efforts to stretch the holding of Landon to encompass the actions of MROs, no legal or regulatory authority exists establishing that MROs owe test subjects a duty of care under New York common law above and beyond that which is owed to the general public. Without such a duty, Pasternack’s negligence claims against LexisNexis are doomed. For these reasons and those stated above, LexisNexis respectfully requests that this Court answer “No” to the First Certified Question. Respectfully submitted, SEYFARTH SHAW LLP By: ______________________________ Attorney for Defendant-Respondent LexisNexis Occupational Health Solutions Inc. Date: April 4, 2016 COMPENDIUM Subpart G - Medical Review Officers and the Verification Process § 40.121 Who Is qualified to act a. an MRO? Pale 28 0(101 To be qualified to act as an MRO in the DOT drug testing program, you must meet each of the requirements oflhis section: (a) Credenl;als. You must be a licensed physician (Doclor of Medicine or Osleopalhy). (fyou are a licensed physician in any U.S., Canadian, or Mexican jurisdiction and meet the other requirements oflhis section, you are authorized to perform MRO services with respect to all covered employees, wherever they are located. For example, if you arc licensed as an M.D. in one state or province in the U.S., Canada, or Mexico. you are not limited to performing MRO functions in that state or province, Bnd you may perform MRO functions for employees in other states or provinces without becoming licensed to practice medicine in the other jurisdictions. (b) Basic knowlcdge. You must be knowledgeable in the following areas: (\) You mUSI he knowledgeable about and have clinical experience in controlled substances abuse disorders. including detailed knowledge of alternative medical explanations for labol'1ltOl')' confirmed drug lest results. (2) You musl be knowledgeable about issues relaling to adulterated and substituted specimens as well as the possible medical causes of specimens havin& an invalid result. (3) You must be knowledgeable about this part, the DOT MRO Guidelines, and the DOT agency regulations applicable to the employers for whom you evaluate drug test results, and you must keep current on any changes to these materials. The DOT MRO Guidelines document is available from ODAPC (Department of Transportation, \200 New Iersey Avenue, SE, Washington DC, 20590, 202-366-3784, or on the ODAPC web site (htlp·/Iwww.do\.govlostldaocl. (c) QualificatioD Training. You musl receive qualification trainin, meeting the requirements of this paragraph (c). (1) Qualification training must provide instruction on the followin, subjects: (j) Collection procedures for urine specimens; (ii) Chain of custody, reporting, and retordkccping; (iii) Interpretalion of drug and validity lests results; (iv) The role and responsibilities of the MRO in the DOT drug lesling program; (v) The inle",ction with other participants in the program (e.g., DERs, SAPs); and (vi) Provisions oflhis part and DOT agency rules applying to employers for whom you review lest results, including changes and updates to this part and DOT agency rules, guidance, interpretations, and policies affecting the performance ofMRO functions, as well as issues that lYfROs confront in canying out their duties under this part and DOT agency rules. (2) Following your completion of qualification training under pangraph (c)(\) of this section, you must satisfactorily complete an examination administered by a nationally-recognized MRO certification board or subspecialty board for medical practilioncrs in the field of medical review afOOT-mandated drug tests. 1lte examination must comprehensively COVer all the elements of qualification training listed in paragraph (c)(\) of this section. (3) The following is the schedule for qualification training you must meet: (i) [fyou became an MRO before August 1,2001, and have already met the qualification training requirement, you do not have to meet it again. (ii) If you became an MRO before August I, 2001, but have not yet met the qualification training requirement, you must do 50 no latcr Ihan January 31, 2003. (iii) If you become an MRO on or .ncr August 1,2001, you must meet the qualification training requirement before you begin 10 perform MRO functions. (d) Regua1ification T@jnjng. During each fivc.ycar period from the date on which you satisfactorily completed the ex"mination under paracraph (c)(2) of this section or have successfully completed the required continuing education requirements which were mandatory prior to October I, 2010, you must complete rcqualification training. (\) This requalification training must meet the requirements of the qualification training under paragraph (c)(I) of this section. (2) Following your completion of rcqualification training, you must satisfactorily complete an examination administered by a nationally-recognized MRO certification board or subspecialty board for medical practitioners in the field of medical review afDOT -mandated drug lests. The examination must comprehensively cover all the elemcnts of qualification lraining listed in paragraph (c)(\) ofthis seelion. POKe 29 or 101 (e) Documentation. You must maintain documentation showing that you currently meet all requirements of this section. You must provide this documentation on request to DOT agency representatives and to employers and ClTPAs who are using or negotialing to use your services. [65 FR 79526. Dec. 19.2000. as amended al66 FR41951. Aug. 9. 2001; 73 FR 33329. June 12.2008; 75 FR49862. August 16. 2010] § 40.123 What are the MRO's responsibilities in the DOT drug testing program? As an MRO, you have the following basic responsibilities: (a) Acting 85 an independent and impartial "gatekeeper" and advocate for the accuracy and integrity of the drug testing process. (b) Providing a quality assurance review of the drug testing process for the specimens under your purview. This includes, but is not limited to: (I) Ensurin, Ihe review oflhe CCF on all specimen collections fOflhe purposes of determining whelher there is a problem Ihal may cause a lest 10 be cancelled (see U40.199-40.203). As an MRO. you are nOI required 10 review laboralory internal chain of custody documentation. No one is permitted to cancel a test because you have not reviewed this documentation; (2) Providing feedback to employers, collection sites and laboratories regarding perfonnance issues where necessary; and (3) Reponing 10 and consullin, wilh Ihe ODAPC or a relevanl DOT agency when you wish DOT assislancc in resolving any program issue. As an employer or service agent, you are prohibited from limiting or attempting to limit the MRO's access to DOT for this purpose and from retaliating in any way against an MRO for discussing drug testing issues wilhDOT. (c) You must determine whether there is alcgitimate medical explanation for confirmed positive, adulterated, substitulcd. and invalid drug leslS results from Ihe labonllory. (d) While you provide medical review of employees' lest results. Ihis pan docs nol deem lhal you have eslablished a doctor.patient relationship with the employees whose tests you review. (e) You must act to investigate and correct problems where possible and notify appropriate parties (e.g., InIS, DOT, employers, service agents) where assistance is needed, (e.g., cancelled or problematic tests, incorrect results, problems wilh blind specimens). (I) You must ensure Ihe limely flow of lest resullS and olher information to employers. (g) You must prolccllhe confidenlialily of lhe drug lestin, informalion. (h) You must perform all your funclions in compliance wilh Ihis pan and other DOT agency regUlations. § 40.125 What relationship mayan MRO have with a laboratory? As an MRO, you may not enter into any relationship with an employer's laboratory that creates a conflict of interest or the appearance of a conflict ofinlerest with your responsibilities to that employer. You may not derive any financial benefit by having an employer usc 8 specific laboratory. For examples of relationships between laboratories and MROs that the Department views as creating 8 conflict of interest or the appearance of such a conflict, sec §40.101(b). § 40.127 What are Ihe MRO's rUDetioDs in reviewing negative test resuits? As Ihe MRO. you must do lhe following wilh respecllo negative drug lest resullS you receive from a laboralory. prior 10 verifying lhe result and releasin, it 10 lhe DER: (a) Review Copy 2 of the CCF to determine if there arc any fatal or correctable errors that may require you to iniliale corrective aClion or 10 cancellhelesl (sec §§40. i99 and 40.203). CCF. (b) Review the negative laboratory test result and ensure that it is consistent with the infonnation contained on the (c) Before you report a negative test result, you must have in your possession the following documents: (I) Copy 2 oflhe CCF. a legible copy ofil, or any olher CCF copy conlaining Ihe employee's signalure; and (2) A legible copy (fa .. pholocopy, ima&e) of Copy I oflhe CCF or Ihe eleclronic laboralOf)' results repon lhat conveys the negative laboratory test result. (d) if the copy of the documenlalion provided 10 you by Ihe colleclor or labonllory appears uncI ..... you must requestlhallhe colleclor or laboralOf)' send you a legible copy. (e) On Copy 2 of the CCF, place a check mark in the "Negative" box (Step 6), provide your name, and sign, initial, or stamp and date the verification statement. (I) Repon the result in a confidenlial manner (see §§40.163-40.167). (g) Staff under your direct, personal supervision may perform the administrative functions oflhis section for you, bUI only you can cancel a lest. If you cancel a laboralOf)'-Confirmed negalive result. check lhe ''Tesl Cancelled" box (Slep 6) on Copy 2 of the CCF, make appropriate annotation in the "Rcmarks"linc, provide your name, and sign, initial or stamp and date the verification statement. (1) On specimen results that are reviewed by your starr, you are responsible for assuring the quality of their work. '-.300flOI (2) You are required to personally review at least S percent of all CCFs reviewed by your staff on a quarterly basis, includine all results that required a corrective action. However, you need not review marc than SOO negative results in any quarter. (3) Your review must, as a minimum, include the CeF, negative laboratory test result, any accompanying cOrTeClivc documents, and the report senl lo the employer. You must correct any errors that you discover. You must take Bclion as necessary to ensure compliance by your staff with this part and document your corrective action. You must attest to the quality assurance review by initialinc the CCFs that you review. (4) You must make these CCFs easily identifiable and retrievable by you for review by DOT agencies. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001] § 40,129 What are the MRO'. function. In reviewing laboratory confirmed non-negative drug test results? (a) As the MRO, you must do the following with respect to confirmed positive, adulterated, substituted, or invalid drug tests you receive from a laboratory, before you verify the result and release it to the DER: (I) Review Copy 2 of the CCF to determine if there are any fatal or correctable errors that may require you to cancel the test (see U40.199 and 40.203). Staff under your direct, personal supervision may conduct this administrative review for you, but only you may verify or cancel a test. (2) Review Copy I of the CCF and ensure that it is consistent with the information contained on Copy 2, that the test result is legible, and that the certifying scientist signed the form. You are not required to review any other documentation generated by the laboratory during their analysis or handling of the specimen (e.g., the laboratory internal chain of custody). (3) Ifthe copy of the documentation provided to you by the collector or laboratory appears unclear, you must request that the collector or laboratory send you a legible copy. (4) Excep1 in the circumstances spelled out in §40.133, conduct a verification interview. This interview must include direct contact in person or by telephone between you and the employee. You may initiate the verification process based on the laboratory results report. (5) Verify the test result, consistent with the requirements of §§ 40.135 through 40.145, 40.159, and 40.160, as: (i) Negative; or (ii) Cancelled; or (iii) Positive, andlor refusal to test because of adulteration or substitution. (b) Before you repon a verified negative, positive, test cancelled, refusal to tcst because of adulteration or substitution, you must have in your possession the following; documents: (I) Copy 2 of the CCF, aleeible copy of it, or any other CCF copy containing the employee's signature; and (2) A legible copy (fax, photocopy, image) of Copy I ofthe CCF, containing the certifying scientist's signature. (c) With respect to verified positive test results, place a checkmark in the "Positive" box in Step 6 on Copy 2 of the CCF, indicate the drug(s)/metaboJite(s) verified positive, and sign and date the verification statement. (d) If you cancel a laboratory confirmed positive, adulterated, substituted, or invalid drua test report, check the "test cancelled" box (Step 6) on Copy 2 or the CCF, make appropriate aMotatlon in the "Remarks"line, sign, provide your name, and date the verification statement. (e) Report the result in a confidential manner (see §§40.l6340.167). (I) With respect to adulteration or substitution test results, check the "rerusal to test because:" box (Step 6) on Copy 2 of the CCF, check the "Adulterated" or "Substituted" box, as appropriate, make appropriate aMolation in the "Remarks" line, sign and date the verification statement. (g) As the MRO, your actions concerning reportine confirmed positive, adulterated, Or substituted results to the employer before you have completed the verification process arc also governed by the stand~down provisions of §40.21. (I) Ifan employer has a stand-down policy that meets the requirements of §40.21, you may report to the DER that you have received an employee's laboratory confirmed positive, adulterated, or substituted test result, consistent with the terms of the waiver the employer received. You must nOi provide any further details about the test result (e.&-, the name of the drug involved). (2) Iftheemployer does not have astand-down policy that meets the requirements of§40.21 ,you must not inform the employer that you have received an employee's laboratory confirmed positive, adulterated, or substituted test result until you verify the test result. For example, as an MRO employed directly by a company, you must not tell anyone On the company's staff or management thal you have received an employee's laboratory confirmed test result. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 FR 35971, June 25, 2008; 75 FR 59107, September 27, 2010] § 40.131 How does the MRO or DER notify an employee of the verification process after receiving laboratory confirmed non-negative drug test results? (a) When, as the MRO, you receive a confirmed positive, adulterated, substituted, or invalid test result from the laboratory, you must cOolact the employee directly (i.e., actually talk to the employee), on a conrodeolial basis, to determine hae310(lOI whether the employee wants to discuss the test result. In making this contact, you must explain to Ihe employee that, ifhe or she declines to discuss the result, you will verify the test as positive or as a refusal to test because of adulteration or substitution, as applicable. (b) As Ihe MRO, staITunder your personllsupervision may conducllhis inilial conlacl for you. (1) This starr contact must be limited to scheduling the discussion between you and the employee and explaining the consequences of the employee's dcclinine to speak with you (i.e., that the MRO will verify the test without input from the employee). If the employee declines to speak with you, the staff person must document the employee's decision, including Ihe dale and lime. (2) A staff person must not gather any medical information or infonnation concerning possible explanations for the test result. (3) A staff person may advise an employee to have medical infonnation (e.g., prescriptions, infonnation forming the basis ofa leeitimate medical explanation for a confirmed positive test result) ready to present at the interview with the MRO. (4) Since you are required 10 speak personally wilh Ihe employee, flce·lo-face or on Ihe phone, your staIT must nol inquire iflhe employee wishes 10 speak wilh you. (c) As Ihe MRO, you or your 51aff musl make reasonable efforts 10 reach the employee allhe day and evening telephone numbers listed on the CCF. Reasonable efforts include, as a minimum, three attempts, spaced reasonably over a 24-hour period, to reach the employee at the day and evening telephone numbers listed on the CCF.1f you or your staff cannot reach the employee directly after making these efforts, you or your 5tafT must take the following steps: (I) Document the efforts you made to contact the employee, including dates and times. If both phone numbers arc incorrect (e.g., disconnected, wrong number), you may take the actions listed in paragraph (cX2) oflhis section without wailing Ihe full 24·hour period. (2) Conlacllhe DER, instrucling Ihe DER 10 cOnl8cllhe employee. (i) You must simply direct the DER to infonn the employee to contact you. (ii) You must not inform the DER that the employee has a confirmed positive, adulterated, substituted, or invalid test result. (iii) You must document the dates and times of your attempts to contact the DER, and you must document the name of the DER you contacted and the date and time of the contact. (d) As the DER, you must attempt to contact the employee immediately, using procedures that protect, as much as possible, Ihe confidenlialilY of the MRO's requesllhallhe employee conlacllhe MRO.lfyou successfully conlacllhe employee (i.e., aelually lalk 10 the employee), you musl documenllhe dale and lime ofthe conlacl, and inform the MRO. You musl inform Ihe employee thaI he or she should conlKllhe MRO immedialely. You mustllso inform the employee of the consequences of failing 10 eonllcllhe MRO wilhin Ihe nexl 72 hours (see §40.133(aX2)). (1) As the DER, you must not inform anyone else working for the employer that you arc seeking to contact the employee on behalf oflhe MRO. (2) If, as the DER, you have made all reasonable effons to contact the employee but failed to do so, you may place the employee on temporary medically unqualified status or mcdicalleave. Reasonable efforts include, as a minimum, three attempts, spaced reasonably over a 24-hour period, to reach the employee at the day and evening telephone numbers listed on the CCF. (i) As the DER, you must documonllhe dales and limes ofthese efforts. (ii) If, as the DER, you are unable 10 conlacllhe employee wilhin Ihis 24·hour period, you mU5lleave a message for Ihe employee by any pl1lcliclble means (e.g., voicemail.e·mail.leller) 10 contacllhe MRO and inform Ihe MRO oflhe date and time of this attempted contact. [65 FR 79526, Dec. 19,2000, as amended al66 FR 41952, Aug. 9, 2001; 68FR 31626, May 28, 2003; 69 FR 64g67, Nov.9, 2004; 73 FR 35971, June 25, 2008] § 40.133 Without interviewing the empioyee, under what circumstances may tbe MRO verify a test result as positive, Dr as a refu.allo le.t because of adulteration or .ubstltutlon, or as cancelled because Ibe lesl was invalid? (a) As the MRO, you nonnally may verify a confirmed posilivelesl (for any drug or dru& metabolile, inclodin& opiates), or as a refusal to test because of adulteration or substitution, only after interviewing the employee as provided in §§40.13S~0.14S. However, there are three circumstances in which you may verify such a result without an interview: (1) You may verify a lesl result as a posilive or refusal 10 lesl, as applicable, ifthe employee expressly declines Ihe opportunity to disc:uss the test with you. You must maintain complete documentation of this occurrence, including notacion of informing, or anempting to infonn, the employee of the consequences of not exercising the option to speak with you. (2) You may verify a test result as a positive or refusal to test, as applicable, if the DER has successfully made and documented a contKt with the employee and instructed the employee to contact you and morc than 72 hours have passed since the lime Ihe DER contacled the employee. (3) You may verify a test resuh &s a positive or refusal to test, as applicable, if neither you nor the DER, after making and documenting all reasonable efforts, has been able to contact the employee within ten days ofthe dale on which Ihe MRO receives Ihe confinned lest result from the laboralory. Plae 32 orlOI (b) As the MRO, you may verify an invalid test TCSUIt as cancelled (with instructions to recollect immediately under direct observation) without interviewing the employee. as provided at § 40.159: (I) If the employee expressly declines the opportunity to discuss the test with you; (2) If the DER has successfully made and documented a contact with the employee and instructed the employee to contact you and man: than 72 hours have passed since the time the DER contacted the employ~ or (3) If neither you nor the DER, after making and documenting all reasonable efforts, has been able to contact the employee within ten days ofthe date on which you received the confirmed invalid test result from the laboratory. (c) As the MRO. after you verify a test result as a positive or as a refusal to test under this section. you must document the date and time and reason. following the instructions in § 40.163. For a cancelled test due to an invalid result underthis section, you must follow the instructions in § 40.159(aX5). (d) As the MRO, after you have verified a test result under this section and reported the result to the DER, you must allow the employee to present infonnation to you within 60 days oflhe verification to document that serious illness. injury, or other circumstances unavoidably pretluded contatt with the MRO andlor DER in the times provided. On the basis of such information, you may reopen the verification. allowin, the employee to present information concerning whether there is a legitimate medical explanation of the confirmed test result. [65 FR 79526, Dec. 19,2000, as amended at 73 FR 35971,1une 25, 2008) § 40.135 What does the MRO tell the employee at the begInnIng of the verification Interview? (a) As the MRO, you must tell the employee that the laboratory has determined that the employee's test result was positive. adulterated. substituted. or invalid. as applicable. You must also tell the employee orthc drugs for which his or her specimen tested positive, or the basis for the finding of adulteration or substitution. (b) You must explain the verification interview process to the employee and inform the employee that your decision will be based on information the employee provides in the interview. (c) You must explain that. if further medical evaluation is needed ror the verification process. the employee must comply with your request for this evaluation and that failure to do so is equivalent of expressly declining to discuss the test result. (d) As the MRO. you must warn an employee who has a confinned positive, adulterated. substituted or invalid test that you are required to provide to third panics druC test result information and medical infonnation affecting the pcrfonnance of safetY·5ensitive duties that the employee gives you in the verification process without the employee's consent (see §40.327). (I) You must give this warning 10 the employee beron: obtaining any medical inrormation 85 part ofthc verification process. (2) For purposes ofthis paragraph (d), medical information includes information on medications or other substances affecting the perfonnance of sarety.sensitive duties that the employee reports using or medical conditions the employee reports having. (3) For purposes of this paragraph (d), the persons to whom this information may be provided include the employer, a SAP evaluating the employee as pari oflhe return to duty process (see §40.293(g», DOT, another Federal safety agency (e.g .• the NTSB). or any state sarety agency as required by state law. (e) You must also advise the employee that, after infonning any third party about any medicalion the employee is using pursuant to a legally valid prescription under the Controlled Substances A<~ you will allow 5 days for the employee to have the prescribing physician contact you to determine ifthe medication can be changed to one that does not make the employee medically unqualified or docs not pose a significant safety risk. If, as an MRO. you receive such inrormation from the prescribing physician. you must transmit this inrormation to any third party to whom you previously provided inrormation about the safety risks ofthe employee's other medication. [65 FR 79526, Dec. 19,2000, as amended at 66 FR41952, Aug. 9, 2001) § 40.137 On what basIs does the MRO verIfy test results InvolvIng marijuana, cocaIne, amphetamIne., or PCP? (a) As the MRO, you must verify a confirmed positive lest result ror marijuana, cocaine, amphetamines, and/or PCP unless the employee presents a legitimate medical explanation for Ihe presence oflhe drug(sYmetabolite(s) in his or her system. (b) You must offer the employee an opportunity to present a legitimate medical explanation in all cases. (c) The employee has the burden of proof thai a legitimate medical explanation exists. The employee must present inrormation meeting this burden at the time orthe verification interview. As the MRO. you have discretion to extend the time available to the employee ror this purpose ror up to five days berore verifying the test result, if you determine that there is a reasonable basis to believe that the employee will be able to produce relevant evidence concemine a legitimate medical explanation within that time. (d) If you determine thaI the", is alegitim"'e medical explanation, you must verify the test result as negative. Otherwise. you must verify the test result as positive, Paae lJ 0(101 (e) In detennining whether a legitimate medical explanation exists, you may consider the employee's use of a medication from a foreign country. You must exercise your professional judgment consistently with the following principles: (1) Therc can be a legitimate medical explanation only with respect to a substance that is obtained legally in a foreign country. (2) There can be a legitimate medical explanation only with respect co a substance thac has 8 legitimate medical use. Use ofa drug of abuse (e.g., heroin, PCP, marijuana) Or any other substance (sec §'IO.151(!) and (g» that eaMOt be viewcd as having a lecitimate medical usc can ncver be the basis for a lccitimatc medical explanation, even if the substance is obtained legally in a foreign country. (3) Use of the substance can fonn the basis of a legitimate medical explanation only if it is used consistently with its proper and intended medical purpose. (4) Even if you find that there is 8 legitimate medical explanation under this patalraph (c) and verify a test negative, you may have a responsibility to raisc fitness-for-duty considerations with the employer (see §40.327). § 40.139 On what basis does the MRO verify te.t re.ults Involvln& opiates? As the MRO, you must proceed as follows when you receive a laboratory confirmed positive opiate result: (a) Ifthe laboratory confirms the presence of 6-acetylmorphine (6-AM) in the specimen, you must verify the test result positive. (b) In the absence of6-AM, if the laboratory confirms the presence of either morphine or codeine at 15,000 ng/mL or above, you must verify the test result positive unless the employee presents a legitimate medical explanation for the presence orthe drug or drug metabolite in his or her system, 8S in the case of other drugs (see §40.137). Consumption of food products (e.g., poppy seeds) must not be considered a legitimate medical explanation for the employee having morphine or codeine at these concentrations. (c) For aU other opiate positive raullS, you musl verify a confinned positive rest result for opiates only if you determine that there is clinical evidencc, in addition to the urine test, ofunButhorized usc of any opium, opiatc, or opium derivative (i.e., morphine, heroin, or codeine). (I) As an MRO. it is your responsibility to use your best professional and ethical judgment and discretion to determine whether there is clinical evidence of unauthorized usc of opiates. Examples of infonnation that you may consider in making this judgment include, but are not limited to, the following: (i) Recent needle tracks; (ii) Behavioral and psychological signs of acute opiate intoxication or withdrawal; (iii) Clinical history of unauthorized use recent enouch to have produced the laboratory test resule; (iv) Use ofa medication from a foreign country. Sec §40.137(e) for guidance on how to malte this determination. (2) In order to establish the clinical evidence referenced in paracraphs (e)(1 )(i) and (ii) of this section, personal observation ofthc employee is essential. (i) Thereforc, you, as the MRO, must conduct, or cause another physician to conduct, a face·to-face examination or the employee. (ii) No facc·to-face examination is needed in establishing the clinical evidence referenced in paragraph (c)(I)(iii) or (iv) of this section. (3) To be the basis ofa verified positive result for opiates, the clinical evidence you find must concern a drug that the laboratory found in the specimen. (For example, if the test confirmed the presence of codeine, and the employee admits 10 unauthorized use of hydro cod one, you do not have grounds for verifying the test positive. The admission must be for the substance that was found). (4) As the MRO, you have the burden of establishing that there is clinical evidence of unauthorized use of opiates referenced in paragraph (c) oflhis scction. If you cannot make this detennination (e.g., there is not sufficient clinical evidence or history), you must verify the test as negative. The employee does not need to show you that a legitimate medical explanation exists if no clinical evidence is established. [65 fR 79526, Dec. 19,2000, as amended at 7S fR 49862, August 16,2010; 77 FR 26473, May 4, 2012) § 40.141 How docs the MRO obtain Information for the verification decision? As the MRO, you must do the following as you make the determinations needed for a verification decision: (a) You must conduct a medical intervicw. You must review the employee's medical history and any other relevant biomedical factors prcsented to you by the employee. You may direct the employee to undergo further medical evaluation by you or anOlher physician. (b) Ifthe employee asserts that the presence of a drug or druB metabolite in his or her specimen results from taking prescription medication, you must review and take all reasonable and necessary steps to vcriry the authenticity of all medical records the employee provides. You may contact the employee's physician or other relevant medical personnel for further infonnation. § 40.143 (Reserved) Plge34oriOI § 40.145 On what basis does the MRO verify test results Involving adulteration or substitution? (a) As an MRO, when you receive a laboratory report that a specimen is adulterated or substituted, you must treat that report in the same way you treat the laboratory's report ofa confirmed positive test for a drug or drug metabolite. (b) You must follow the same procedures used for verification ofa confirmed positive test for a drug or drug melabolile (see §§40.129-40.135, 40.141, 40.151), excepl as olherwise provided in Ihis seclion. (c) In the verification interview, you must explain the laboratory findings to the employee and address technical questions or issues the employee may raise. (d) You must ofTer the employee the opportunity to present a legitimate medical explanation for the laboratory findings with respect to presence oflhe adulterant in, or the creatinine and specific gravity findings for, the specimen. (e) The employee has the burden or proof that there is a legitimate medical explanation. (1) To meet this burden in the case of an adulterated specimen, the employee must demonstrate that the adulterant found by the laboratory entered the specimen through physiological means. (2) To meet this burden in the case ora substituted specimen, the employee must demonstrate that he or she did produce or could have produced urine through physiological means, meeting the creatinine concentration criterion of less Ihan 2 mg/dL and Ihe specific gravily ofless Ihan or equal 10 1.0010 or grealerlhan or equal 10 1.0200 (see §40.93(b)). (3) The employee must present information meeting this burden at the time of the verification interview. As the MRO, you have discretion to extend the time available to the employee for this purpose for up to five days before verifying the specimen, if you determine that there is a reasonable basis to believe that the employee will be able to produce relevant evidence supporting a legitimate medical explanation within that time. (f) As the MRO or the employer, you are not responsible for arranging, conducting, or paying for any studies, examinations or analyses to detennine whether a legitimate medical explanation exists. (g) As Ihe MRO, you musl exereise your best professional judgmenl in deciding whelher Ihe employee has established a legitimate medical explanation. (I) If you determine that the employee's explanation does not present a reasonable basis for concluding that there may be a legitimate medical explanation, you must report the test to the DER as a verified refusal to test because of adulteration or substitution, as applicable. (2) If you believe that the employee'S explanation may present a reasonable basis for concluding that there is a legitimate medical explanation, you must direct the employee to obtain, within the five-day period set forth in paragraph (e)(3) oflhis seclion, a further medical evaluation. This evalualion musl be performed by a licensed physician (Ihe "referral physician"), acceptable to you, with expertise in the medical issues raised by the employee's explanation. (The MRO may perform Ihis evalualion ifthe MRO has appropriale expertise.) (i) As the MRO or employer, you are not responsible for finding or paying a rererral physician. However, on request orthe employee, you must provide reasonable assistance to the employee's effons to find such a physician. The final choice of the referral physician is the employee's, as long as the physician is acceptable to you. (ii) As the MRO, you must consult with the referral physician, providing guidance to him or her concerning his or her responsibilities under this section. As pan of this consultation, you must provide the following information to the referral physician: (A) TIlallhe employee was required 10 lake a DOT drug lesl, bUllhe laboralory reported Ihallhe specimen was adulterated or substituted, which is treated as a refusal to tcst; (B) The consequences of the appropriate DOT agency regulation for refusing to take the required drug test; (C) Thallhe referral physician must agree 10 follow Ihe requiremenls of paragraphs (g)(3) Ihrough (g)(4) oflhis section; and (D) That the referral physician must provide you with a signed statement orhis or her recommendations. (3) As the referral physician, you must evaluate the employee and consider any evidence the employee presents concerning the employee's medical explanation. You may conduct additional tests to determine whether there is a legitimate medical explanation. Any additional urine tests must be performed in an HHS-certified laboratory. (4) As Ihe referral physician, you musllhen make a wrillen recommendation 10 Ihe MRO aboul whelher the MRO should determine that there is a legitimate medical explanation. As the MRO, you must seriously consider and assess the rererral physician'S recommendation in deciding whether there is a legitimate medical explanation. (5) As the MRO, if you determine that there is a legitimate medical explanation, you must cancel the test and inform ODAPC in writing of the determination and the basis for it (e.g., referral physician's findings.. evidence produced by Ihe employee). (6) As Ihe MRO, if you delermine Ihallhere is nol a legilimale medical explanalion, you musl report Ihe lesllo Ihe DER as a verified refusal to test because of adulteration or substitution. (h) The following are examples of types of evidence an employee could present to support an assertion ofa legitimate medical explanation for a substituted result. (I) Medically valid evidence demonstrating Ihallhe employee is capable of physiologically producing urine meeting the creatinine and specific gravity criteria of §40.93(b). (i) To be regarded as medically valid, Ihe evidence musl have been galhered using appropriale methodology and controls to ensure its accuracy and reliability. Pile JS 0(101 (ii) Assertion by the employee that his or her personal characteristics (e.g., with respect to race, gender, weight, diet, working conditions) are responsible for the substituted result docs not, in itself, constitute a legitimate medical explanation. To make a case that there is a legitimate medical explanation, the employee must present evidence showing that the cited personal characteristics actually result in the physiological production ofurinc meeting the creatinine and specific gravity criteria of §40.93(b). (2) Information from a medical evaluation under paragraph (g) of this section that the individual has a medical condition that has been demonstrated to cause the employee to physiologically produce urine meeting the creatinine and specific gravity criteria of §40.93(b). (i) A finding or diagnosis by the physician that an employee has a medical condition, in itself, does not constitute a legitimate medical explanation. (ii) To establish there is a legitimate medical explanation, the employee must demonstrate that the cited medical condition actually results in the physiological production of urine meetine the creatinine and specific gravity criteria of §40.93(b). [65 FR 79526, Dec. 19,2000, as amended at 68 FR 31626, May 28, 2003; 69 FR 64867, Nov.9, 2004) § 40.147 [Reserved) § 40.149 May the MRO change a verified drug test result? (a) As the MRO, you may change a verified test result only in the following situations: (I) When you have reopened a verification that was done without an interview with an employee (see §40.133(d)). (2) If you receive information, not available to you at the time ofthe original verification, demonstrating that the laboratory made an error in identifying (e.g., a paperwork mistake) or teSling (e.g., a false positive or negative) the employee's primary or split specimen. For example, suppose the laboratory originally reported a positive lest result for Employee X and a negative result for Employee Y. You verified the test results as reported to you. Then the laboratory notifies you that it mixed up the two test fCSUltS, and X was really negative and Y was really positive. You would change X's test result from positive to negalive and contact Y to conduct a verification interview. (3) If, within 60 days of the original verification decision- (i) You receive information that could not reasonably have been provided to you at the time of the decision demonstrating that there is a legitimate medical explanation for the presence of drug(sYmctabolite(s) in the employee's specimen; or (ii) You receive credible new or additional evidence that a Iceitimate medical explanation for an adulterated or substituted rcsuh exists. E.'Compk to Pgragraph fDU]): If the employee's physician provides you a valid prescription that he or she failed to find at the time of the original verification. you may change the test result from positive to negative if you conclude that the prescription provides a legitimate medical explanation for the drug(s)l metabolite(s) in the employee's specimen. (4) If you receive the information in paragraph (a)(3) of this .. ction after the 60-day period, you must consuit with ODAPC prior to changing the result. (5) When you have made an administrative error and reported an incorrect result. (b) If you ehange the resuit, you must immediately notify the DER in wriling, as provided in §§40.163-40.165. (e) You are the only person permitted to change a verified test result, such as a verified positive test result or a detennination that an individual has refused to test because ofaduhcration or substitution. This is bcc:ausc, as the MRO. you have the sale authority under this pan to make medical determinations leading to 8 verified test (e.g .• a detcnnination that there was or was nOl a legitimate medical explanation for a laboratory test result). For example. an arbitrator is not pennittcd to overturn the medical judgment of the MRO that the employee failed to present a legitimate medical explanation for a positive, adulterated, or substituted test result of his or her specimen. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 FR 35971, June 25, 2008) § 40.151 What are MROs prohIbited from doIng as part of the verification process? As an MRO, you arc prohibited from doing the following as part of the verification process: (a) You must not consider any evidence from tests of urine samples or other body fluids or tissues (e.g., blood or hair samples) that are not collected or tested in accordance with this part. For e.ample, if an employee tells you he went to his own physician. provided a urine specimen, sent it 10 a laboratory, and received a negative test result or a DNA test result questioning the identity of his DOT specimen, you arc required to ignore this test result. (b) It is not your function to make decisions about factual disputes between the employee and the collector concerning maders occurring at the collection site that are not reflected on the CCF (e.g., concerning allegations that the collector left the area or left open urine containers where other people could access them). (c) It is not your function to determine whether the employer should have directed that a test occur. For example, if an employee tells you that the employer misidentified her as the subject of a random test, or directed her to take a reasonable suspicion or posl.accident test without proper grounds under I DOT agency drug or alcohoJ reguJation, you must inform the employee chat you caMot playa role in deciding these issuC5. '.J60(101 (d) It is not your function 10 consider explanations or confirmed positive, adulterated, or substituted test results thai would nOl, even if true, constitute a legitimate medical explanation. For example, an employee may tell you that someone slipped amphetamines into her drink at a party, that she unknowingly ingested a marijuana brownie, or that she traveled in 8 closed car with scvcral pcople smoking crack. MROs arc unlikely to be able to verify the facts of such passive or unknowing ingcstion stories. Even if true, such stories do not present I legitimate medical cxplanation. Consequently, you must not declare a test as negative based on an explanation of this kind. (e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule 1 of the Controlled Substances Act. (e.g., under a state law that purports to authorize sueh recommendations, such as the "medical marijuana"laws that some states have adopted). (f) You must not accept an assertion of consumption or other usc of a hemp or other non-prescription marijuana- related product as a basis for verifying a marijuana test negative. You also must not accept such an explanation related to consumption of coca teas as a basis for vcrifying a cocaine test result as negative. Consuming or usin, such a product is not a legitimate medical explanation. (g) You must not accept an assertion that there is a legitimate medical explanation for the prescnce of PCP, 6-AM, MDMA, MDA, or MDEA in a specimen. (h) You must not accept, as a legitimate mcdical explanation for an adulterated specimen, an assertion that soap, bleach, or glutaraldehyde entered a specimen through physiological means. There are no physiological means through which these substances can enter a specimen. (i) You must noc accept, as a legitimate medical explanation for a substituted specimen, an assertion that an employee can produce urine with no detectable creatinine. There are no physiological means through which a person can produce I urine specimen having this characteristic. (65 FR 79526, Dec. 19,2000, as amended at 66 FR 41952, Aug. 9, 2001; 75 FR 49863, August 16,2010] § 40.153 How doe. Ihe MRO notify employees of their rlghllo a Ic.1 oflhe .pllt spe.lmen? (a) As the MRO, when you have verified a drug test as positive for a drug or drug metabolite, or as a refusal to test because of adulteration or substitution, you must notify the employee of his or her right to have the split specimen tested. You must also notify the employee of the procedures for requcstinc a test of the split specimen. (b) You must inform the employee that he or she has 72 hours from the time you provide this notification to him or her to request a test of the split specimen. (c) You must tell the employee how to contact you to make this request. You must provide telcphone numbcrs or other information that will allow the cmployee to make this request. As the MRO, you must have the ability to receive the employee's calls at all times during the 72 hour period (e.g., by use of an answering machine with a "time stamp" feature when there is no one in your office to answer the phone). (d) ¥ou mUSl tell the employee that ifhe or she makes this ",quest within 72 hours, the employer must ensure lhat the test takes place, and that the employee is not required to pay for the test from his or her own funds before the test takes place. You must also telilhe employee lhat the employer may seck reimbursement for tho cost ofthotCS1 (sec §4O.173). (e) ¥ou mUSltelithe employee that additional tests of the specimen (e.g., DNA tests) are not authorized. § 40.155 What does Ihe MRO do when a negative or positive test result Is al.o dilute? (a) When the laboratory reports that a specimen is dilute, you must, as the MRO, "'pon to the DER that the specimen, in addition to being negative or positive, is dilute. (b) ¥ou must check the "dilute" box (Step 6) on Copy 2 of the CCF. (c) When you report a dilute specimen to the DER, you must explain to the DER the employer's obligations and choices under §40.197, to include the requirement for an immediate recollection under direct observation if the creatinine concentration of a negative-dilute specimen was greater than or equal to 2mg/dL but less than or equal to SmgldL (d) lfthe employee's recollection under direct observation, in paragraph (c) of this section, results in another negativc-dilute, as the MRO, you must: (1) Review the CCF to ensure that there is documentation that the recollection was directly observed. (2) Ifthe CCF documentation shows that the rocollcotion was directly observed as "'quired, report this result to the DER as it negative-dilute result. (3) If CCF documentation indicates that the recollection was not directly observed as required, do not report I result but aeain explain to the DER that there must be an immediate recollection under direct observation. [65 FR 79526, Dee. 19,2000, as amended at 66 FR 41952, Aug. 9, 2001; 68 FR 31626, May 28, 2003; 69 FR 64867, Nov.9, 2004; 73 FR 35971, June 25, 2008] § 40.157 (Re.erved[ P1ae 37 orlOI § 40.159 Whal doe. Ihe MRO do when a drullesl result Is Invalid? (a) As Ihe MRO, when Ihe laborolory reports lhallhe lesl resull i. an invalid resull, you must do Ihe following: (I) Diseuss Ihe laboralory resulls wilh a certifying seienlisllo delermine iflh. primary specimen should b.'eSled aI anolhes HHS certified laboralory. If,h.lab .... ,ory did not conlacl you as required by §§ 40.91 (.) and 40.96(c), yoo muSl contact che laboracory. (2) Ifyoo and Ih.laboralory have delermined Ihal no further leSling is necessary, conlacl the employee and inform the employee that the specimen was invalid. In contacting the employee, use the procedures set COMh in § 40.131. (3) Aft.r explaining th.limits ofdisclosur. (see §* 40.13S(d) and 40.327), you must determine ifthe employee has a medical explanation for the invalid result. You must inquire about the medications the employee may have taken. (4) If the employee gives an explanation that is acceptable, you must: (i) Place a check mark in the "Test Cancelled" box (Step 6) on Copy 2 of the CCF and ent.r "Invalid Result" and "direct observation collection not required" on the "Remarks" line. (ii) R.pon 10 the DER that the '''' is cancelled, the reason for cancellalion, and that no further action is required unless a negative tese result is required (i.e., pre·empkJymcnt t retum-to-duly, or follow·up tests). (iii) Ifa nes_live test result is required and the medical explanation concerns _ situation in which the employee has a permanent or long-term medical condition that precludes him or her from providing a valid specimen, as the MRO, you must follow the procedures outlined at § 40.160 for determining if there is clinical evidence that the individual is an illicit drug user. (5) If the employee is unable to provide an explanation and/or a valid prescription for a medication that interfered with the immunoassay test but denies having adulterated the specimen, you must: (i) Place a check mark in the "Test Cancelled" box (SI.p 6) on Copy 2 ofthe CCF and enter "Invalid Result" and "direct observation collection required" on the "Remarks" line. (ii) RepOt110 the DER that the test is cancelled, Ihe r.ason for cancellation, and that a second collection must l21ce place immediately under direct observation. (iii) Instruct the employer to ensure that the employee has the minimum possible advance notice that he or she must go to the collection site. (6) Wh.n the le51 result is invalid because pH is great.r than or equal to 9.0 but less than or equal 10 9.5 and the employee has no other medical explanation for the pH, you should consider whether there is evidence of elapsed time and increased temperature that could account for the pH value. (i) You are authorized to consider the cemperalure conditions that were likely to have existed between the lime of collection and transportation orlhe specimen co the laboratory, and the length of time between the specimen collection and arrival at the labonuory. (ii) You may talk with the collection site and laboratory 10 discuss time and temperature issues, including any pertinent information re&arding specimen stance. (iii) If you determine that time and temperature account for the pH value, you must cancel the test and take no further action, as provided II paragraph (a)(4) of this section. (iv) If you determine that time and temperature fail to account for the pH value, you must cancel the test and direct another collection under direct observation, as provided at paragroph (a)(S) ofthis section. (b) You may only report an invalid test result when you are in possession ofa legible copy of Copy I oflhe CCF. In add ilion, you must have Copy 2 ofthe CCF, a lecibl. copy of iI, or any other copy of the CCF containing lhe employee's signature. (c) If the employee admits to havin. adulterated or substituted the spctimcn, you must, on the same day, write and sign your own Slatem.nt of what the employee told you. You must then report a refusal to test in accordance with §40.163. (d) If the employee admits to usin& a drug, you must, on the same day, write and si&" your own statement of what the employee told you. You must then report that admission to the DER for appropriate Bclion under DOT Agency regulations. This tcst will be reported as cancelled with the reason noted. (e) Ifth. employe.'s recolleclion (required at parograph (a)(S) of this section) results in anolher invalid result for the same reason as reported Cor the first specimen, as the MRO, you must: (1) Review the CCF to ensure that there is documentation that the recollection was directly observed. (2) If the CCF review indic ... s thallhe recolleclion was direcdy observed as required, docum.nt thaI theemployee had another specimen with an invalid result for the same reason. (3) Follow the recording and r.porting procedures at (a)(4)(i) and (ii) oflhis .. ction. (4) If a n.,aliv. result is r.quired (i.e., pr.·.mploymen~ retum-to·duty, or follow-up lestS), follow the proc.dures at § 40.160 for determining if there is clinical evidence that the individual is an illicit drug user. (5) If the recollection was not direccly observed as required, do not report a result but again explain to the DER that there must be an immediate recollection under direct observation. (f) Iflhe .mployee's recollection (requir.d at paragroph (a)(S) of this section) results in anoth.r invalid result for a different reason than that reported for the first specimen, as the MRO, you must: (I) Revi.w Ihe CCF to ensure Ihal there is dOCUmenlalion that the recollection was directly obs.rved. (2) If the CCF revi.w indicates Ihal the recollection was directly observed as required, document that the employee had another specimen with an invalid result for a different reason. Pale 38 or 101 (3) As Ihe MRO, you should nol conlacilhe employee 10 discuss Ihe rcsull, bUI ralher direellhe DER 10 eonduel an immediate recollection under direct observation without prior notification to the employee. (4) nlhe CCF documenlation indiealts Ihallhe rccollcclion was nol direclly observed as required, do nol repon a result but again explain to the DER that there must be an immediate recollection under direct observation. (g) If, as the MRO, you receive a laboratory invalid result in conjunction with a positive, adulterated, andlor substituted resull and you verify any of those R:5ults as being a positive and/or refusal to test, you do nOC report the invalid result unless the split specimen fails to reconfirm the result(s) oflhe primary specimen. [65 FR 79526, Dec. 19,2000 as amended al 73 FR 35972, June 25, 2008; 75 FR49863, Augusl16, 2010] § 40.160 What does the MRO do when a valid test result cannot be produced and a negative result 15 required? (a) If a yalid 1051 resull cannol be produced and a negaliYe resull is required, (under § 40.159 (a)(5)(iii) and (e)(4)), as the MRO. you must determine if there is clinical evidence that the individual is currently an illicit drug user. You must make this determination by personally conducting, or causing to be conducted, a medical evaluation. In addition, if appropriate, you may also consult with the employee's physician to eather information you need to reach this determination. (b) [fyou do nol personally conducllhe medicalevalualion, as Ihe MRO, you muslensure Ihal one is conduCled by a licensed physician acceptable to you. (c) For purposes of this section, the MRO or the physician conducting the evaluation may conduct an alternative test (e.g., blood) IS part of the medically appropriate procedures in determining clinical evidence of drug use. (d) If the medical evaluation reveals no clinical evidence of drug use, as the MRO, you must report this 10 the employer as a negative lest result with written notations regarding the medical el{amination. The report must also state why the medical euminalion was required (i.e .. either the basis ror the determination that a permanent or long4enn medical condition exists or because the recollection under direct observation resulted in another invalid result for the same reason, as appropriate) and (or the detennination that no signs and symptoms of drua usc: exist. (I) Check "NegaliYe" (Slep 6) on Ihe CCF. (2) Sign and dalelhe CCF. (e) If the medical evaluation reveals clinical evidence of drug use, as the MRO, you must n:port the result to the employer as a cancelled test with written notations regarding the results of the medical examination. The report must also state why the medical examination was required (i.e., either the basis for the determination that a pennanent or long-term medical condition el{ists or because the recollection under direct observation resulted in another invalid result for the same reason, as appropriate) and state the reason for the determination that signs and symptoms of drug use exist. Because this is a cancelled test, it does not serve the purpose of an actual negative test result (i.e., the employer is not authorized to allow the employee to begin or resume performing safety-sensitive functions, because a negative test result is needed for that purpose). [73 FR 35972, June 25, 2008) § 40.161 What does the MRO do when a drug tost specimen Is rejected for testing? As the MRO, when the laboratory reports that the specimen is rejected for testing (e.g., because of a fatal or uncorrected flaw), you must do the following: (a) Ploce a check mark in Ih. "TCSI Cancelled" bo. (Slcp 6) on Copy 2 oflhe CCF and cnler the reason on Ihe HRcmarks" line. (b) Repon to Ihe DER Ihallhe 1051 is cancelled and Ihe reason for concellalion, and Ihal no funher aclion is required unless a negative test is required (e.g., in the case o( a pre-employment, return-la-duty, or follow-up test). (c) You may only report a test cancelled because of a rejected for testing test result when you arc in possession of a legible copy of Copy I oflhe CCF.[n addilion, you muSl have Copy 2 oflhe CCF, a legible copy Ofil, or any oIher copy of the CCF containing the employee's signature. § 40.162 What must MROs do with multiple verlned results for the same testing event? (a) Ifthe testing event is one in which there was one specimen collection with multiple verified non-negative res"IIs, as the MRO, you mIlS( repon Ihem 01110 !he DER. For example, if you verified Ihe specimen as being pasiliYe for marijuana and cocaine and as being 8 refusal to test because the specimen was also adulterated, as the MRO, you should repon Ihe posiliv .. and the refusal 10 Ihe DER. (b) If the testing event was one in which two separate specimen collections (e.g., a specimen out of temperature range and the subsequent observed collection) were sent to the laboratory, as the MRO, you must: (1) If both specimens were verified negative, report the result as negative. (2) If either ofthe specimens was verified negative and the other was verified as one or more non-negative(s), report the non-negative result(s) only. For example, if you verified one specimen as negative and the other as a refusal to ICSI bccauselhe second specimen was SUbsliluled, as Ihe MRO you should repon only Ihe refusal 10 the DER. P .. c390flOI (i) Iflhe first specimen is reponed as negative, but the result of.he second specimen has not been reponed by the laboJ11tory. as the MRO. you should hold - not r.port - the result ofth. first specim.n until the ~ult of the second specimen is received. (ii) If the first sp.cimen is reported as non·negative. as the MRO. you should repan the result immediately and not wait to receive the result of the second specimen. (3) If both specimens were verified non·negative, repon all oflhe non-negative results. For example, if you verified one specimen as positive and the other as a refusal to lest because the specimen was adulterated, as the MRO, you should r.port the positive and the r.fusal ~ults to the DER. (c) As an exc.ption to paragraphs (a) and (b) of this s.ction. as the MRO. you must follow proc.dures at § 40.159(1) wh.n any v.rifi.d non·n.gative result is also invalid. [73 FR 35972. Jun. 25. 2008) § 40.163 How does the MRO report drug test results? (a) As the MRO. it is your responsibility to repan all drug test results to the employer. (b) You may usc a sign.d or stamped and dat.d I.gibl. photocopy of Copy 2 of the CCF to r.port test results. (e) If you do not report test results using Copy 2 of the CCF for this purpose, you must provide. written r.port (e.g., a lener) for each test result. This report must, IS a minimum, include the following information: (I) Full name, as indicated on th. CCF. of the .mploye. test.d; (2) Specimen ID number from the CCF and the donor SSN or .mploy •• ID number; (3) Reason for the tcst. if indicated on the CCF (e.g .• random. post·accident); (4) Oat. of the coll.ction; (5) Oat. you received Copy 2 of the CCF; (6) Result of the test (i. •.• positiv •• n.Bative. dilute. refusal to test. test cancell.d) and the date the result was verifi.d by the MRO; (7) For v.rifi.d positive t.sts. the drug(s)/m.tabolite{s) for which the test was positiv.; (8) For cancelled tests, the reason for cancellation; and (9) For refusals to test, the reason for the refusal detennination (e.g., in the case of an adulterated test result, the name of the adult.rant). (d) As an .... ption to the reporting r.quir.ments of paragraph (b) and (e) of this section. the MRO may report negative results using an electronic data file. (I) If you rt::port negatives usine an electronic data file, the report must contain, as a minimum, the infonnation specified in paragraph (c) of this section. as applicable for negative test results. (2) In addirion, the report must contain your name, address. and phone number, the name of any person other than you reporting rhe results, and the date the elecrronic results report is released. (.) You must r.tain a signed or stamped and dat.d copy of Copy 2 of the CCF in your reconls.lfyou do not use Copy 2 for reporting results, you must maintain a copy of the signed or stamped and dated letter in addition to the signed or stamped and dated Copy 2. If you usc the electronic data file to report neptives, you must maintain a retrievable copy of that report in a format suitable for inspection and auditing by a DOT representative. (I) You must not use Copy I of the CCF to report drug test results. (g) You must not provide quantitative valuesto the DERor ClTPA for drug or validity test results. However. you must provide th. t.st information in your possession to a SAP who consults with you (se. §40.293(g». (h) You must maintain reports and records related to negatives and cancelled results for one year; you must maintain reports and records related '0 positives and refusals for five years. unless otherwise specified by applicable DOT agency regulations. [66 FR 41952. Aug. 9. 2001. as am.nded 75 FR 49863. August 16.2010; 75 FR 59107. Scptemb.r27. 2010; 76 FR 59578. S.pt.mber 27. 201l) § 40.165 To whom doe. the MRO transmit reports of drug test results? (a) As the MRO. you must report all drug test ~ults to the DER, except in the cin:umstanccs provided for in ~40.J45. (b) If the .mploy.r .Iects to receive reports of results through a ClTPA, acting as an intermediary as provided in §40.34S. you must report the results through the designat.d ClTPA. § 40.167 How are MRO reports of dru& results transmltt.d to the employer? As the MRO or CITP A who transmits drug test results to the .mployer. you must comply with the following requirements: (a) You must report the results in a confidenlial maMcr. (b) You must transmit to the DER on the same day the MRO verifies the result or the next business day all v.rified positive lest results, results requiring an immediate collection under dim:1 observarion, aduhcrated or substituted specimen results, and other refusals to test. PIP 40 of 101 (I) Direct lelephone contacl with Ihe DER is the preferred melhod ofimmediale reporting. Follow up your phone call with appropriate documentation (see §40.l63). (2) You are responsible for identifying yourselfto the DER, and the DER must have a means to confirm your identi fication. (3) The MRO's report Ihal you Illmsmilio Ihe employer must conlain all ofthe information required by §40.163. (c) You mustlransmit Ihe MRO's report(s) of verified lest5lo Ihe DER so thai the DER receives it within two days ofverification by Ihe MRO. (1) You must fax, courier, mail, or electronically transmit a legible image or copy of either the signed or stamped and daled Copy 2 Orlhe written report (see §40.163(b) and (c». (2) Negalive ... ults reported electronically (i.e., compuler dala file) do not require an image of Copy 2 or Ihe wrinen report. (d) In transmitting test results, you or the CfTfA and the employer must ensure the security of the transmission and limit access to any transmission, storage, or retrieval systems. (e) MRO reports are not subject to modification or change by anyone other than the MRO, as provided in §40.149(c). [65 FR 79526, Dec. 19,2000, as amended al66 FR 41953, Aug. 9, 2001) § 40.169 Where is other information concerning the role of MROs and the verification process found in this regulation? You can find more information concerning the role ofMROs in several sections of this part: §40.3-Definition. §§40.47-40.49-Correclion of form and kit errors. §40.67-Role in direct observation and other atypical test situations. §40.83-Laboralory handling of falal and correctable flaws. §40.97-Laboralory handling oftesl resuits and quanlitative values. §40.99-Authoriution of longer laboratory retention of specimens. §40.101-Relationship with laboratoriesi avoidance of conflicts ofinterest. §40.10S-Notification of discrepancies in blind specimen results. §40.171-Request for lest of splil specimen. §40.187-Action concerning split specimen test results. §40.193-Role in "shy bladder" situations. §40.195-Role in eancelling tests. §§40.199-40.203-Documenling errors in lestS. §40.327-Confidenliality and relea .. of information. §40.347-Transfer of records. §40.353-Relalionships with service agents. Subpart H - Split Specimen Tests § 40.171 How does an employee request a test of a spUt specimen? (a) As an employee, when Ihe MRO has notified you that you have a verified posilive drug test andlor refusal 10 test because of adulteration or substitution, you have 72 hours from the time of notification to request a test of the split specimen. The request may be verbal or in writing. If you make this request to the MRO within 72 hours, you trigger the requirements of this section for a test of the split specimen. There is no split specimen testing for an invalid result. (b)(I) If, as an employee, you have not requested a test of the splil specimen within 72 hours, you may present to the MRO information documenting that serious injury, illness, lack of actual notice of the verified test result, inability to contact the MRO (e.g., there was no one in the MRO's office and the answering machine was not working), or other circumstances unavoidably prevented you from making a timely request. (2) As the MRO, if you eonclude from Ihe employee's information that there was a legitimate reason for Ihe employee's failure to contact you within 72 hours, you must direct that the test of the split specimen take place,just as you would when there is a timely request. (e) When the employee makes a timely request for a lest of the split specimen under paragraphs (a) and (b) ofthis section, you must, as the MRO, immediately provide written notice to the laboratory that tested the primary specimen, directing the laboratory to forward the split specimen to a second HHS-certified laboratory. You must also document the date and time of the employee's request. [65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35973, June 25, 2008) Pille 43 arlO I (iv) If you determine that there is not a legitimate medical explanation for the adulterated andlor substituted test result, you must take the following sleps: (A) Report the test to the DER and the employee as a verified ",fusal to test. Infonn the employee that he or she has 72 hours to request a test of the primary specimen to determine if the adulterant found in the split specimen is also prescnt in the primary specimen andlor to determine if the primary specimen meets appropriate substitution criteria. (B) Except when the request is for a test of the primary specimen and is being made to the laboratory that tested the primary specimen, follow the procedures of §§ 40.153, 40.171, 40.173, 40.179, 40.181, and 40.185, as appropriate. (C) As the laboratory that tests the primary specimen to reconfinn the presence of the adulterant found in the split specimen andlor to determine that the primary specimen meets appropriate substitution criteria, report your result to the MRO on a photocopy (faxed, mailed, scanned, couriered) of Copy I of the CCF. (D) If the test of the primary specimen reconfinns the adulteration and!or substitution finding ofthe split specimen, as the MRO you must report the result as a ",fusal to test as provided in paragraph (a)(2) ofthis section. (E) If the test of the primary specimen fails to reconfinn the adulteration and/or substitution finding of the split specimen, as the MRO you must cancel the test, following procedu,", in paragraph (b) ofthis section. (d) Categorv4: The laboratory failed to reconfirm one or more but not all of the primary specimen results, and also reported Ihat the split specimen was invalid, adulterated, and/or substituted. As the MRO, in the case where the laboratory reconfirmed one or more of the primary specimen result(s), you must follow procedures in paragraph (a) of this section and: (I) Report that the split was also reported as being invalid, adulterated, and!orsubstituted (as appropriate). (2) Inform the DER to take action only on the reconfinned result(s). (e) Category 5: The split specimen was not available for testing or there was no split laboratory available to test the specimen. As the MRO, you must: (1) Report to the DER and the employee that the test must be cancelled and the reason for the cancellation; (2) Direct the DER to ensure the immediate recollection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection; and (3) Notify ODAPC of the failure to reconfirm using the fonnat in Appendix 0 to this part. <0 For all split specimen results, as the MRO you must in Step 7 of Copy 2 of the CCF: (I) Report split specimen test results by checking the "Reconfinned" box and/or the "Failed to Reconfirm" box, or the "Test Cancelled" box, as appropriate. (2), Enter your name, sign, and date. (3) Send a legible copy of Copy 2 of the CCF (or a signed and dated letter, see § 40.163) to thcemployer and keep a copy for your records. Transmit the document as provided in § 40.167. [65 FR 79526, Dec. 19,2000, as amended at 66 FR41953, Aug. 9, 2001; 68 FR 31626, May 28, 2003; 73 FR 35973, June 25,2008; 75 FR 59108, September 27, 2010) § 40.189 Where Is other Information concerning split specimens found In this regulation? You can find more information concerning split specimens in scveralsections of this part: §40.3-Definition. §40.65-Quantity of split specimen. §40.67-Directly observed test when split specimen is unavailable. §§40.71-40.73-Collection process for split specimens. §40.83-Laboratory accessioning of split specimens. §40.99-Laboratory retention of split specimens. §40.1 03-Blind split specimens. §40.l 53-MRO notice to employees on tests of split specimen. §§40.193 and 40.201-MRO actions on insufficient or unavailable split specimens. Appendix D to Part 40-Repon fonnat for split specimen failure to reconfirm. Subpart I-Problems in Drug Tests § 40.191 What Is a refusal to take a DOT drug test, and what are the consequences? (a) As an employee, you have refused to take a drug test if you: (1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a ClTPA (see §40.61(a»; (2) Fail to remain at the testing site unlil the testing process is complete; Provided, That an employee who leaves the testing site before the testing process commences (see §40.63 (c» for a pre-employment test is not deemed to have refused to test; (3) Fail to provide a urine specimen for any drug test required by this part or DOT agency regulations; Provided, That an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see §40.63 (c» for a pre-employment test is not deemed to have refused to test; Pqc440fi01 (4) In the case ofa directly observed or monitored collection in a drug test, fail to pennit the observation or monitoring of your provision of a specimen (see 0§40.67(1) and 40.69(g»; (5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medicale.planation for the failure (see §40.193(d)(2»; (6) Failor decline to take an additional drug test the employer or collector has directed you to take (sec, for instance, §40.197(b»; (7) Fail to undergo a medical examination or evaluation, as directed by the MRO as pan ofche verification process, or as directed by the DER under §40.193(d).ln the case ofa pre.employment drug test, the employee is deemed to have refused to test on this basis only if the pre.employment test is conducted following a contingent ofTer of employment. If there was no contingent otTer of employment, the MRO will cancel the test; or (8) Fail to cooperate with any part ofthe testing process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process, fail to wash hands after being directed to do so by the collector). (9) For an observed collection, fail to follow the observer's instructions to raise your clothing above the waist, lower clothing and underpants, and to tum around to pennit Ihe observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process. (10) Possess or wear a prosthetic or other device that could be used to interfere with the collection process. (II) Admit to the collector or MROthat you adulterated or substituted the specimen. (b) As an employee, if the MRO reports that you have a verified adulterated or substituted test result, you have refused to take a drug test. (c) As an employee, if you refuse to take a drug test, you incur the consequences specified under DOT a,ency regulations for a violation o(thosc DOT agency regulations. (d) As a collector or an MRO, when an employee refuses to participate in the part ofthe testing process in which you are involved, you must terminate the ponion oflhe testing process in which you are involved, document the refusal on the CCF (includin&. in the case ofthe collector, printing the employee's name on Copy 2 of the CCF), immediately notify the DER by any means (e.g., telephone or secure fax machine) that ensures that the refusal notification is immediately received. As a referral physician (e.g., physician evaluating a nshy bladder" condition or a claim ora legitimate medical explanation in a validity testing situation), you must notify the MRO, who in tum will notify the DER. (I) As the collector, you must note the refusal in the "Remarks"line (Step 2), and sign and date the CCF. (2) As the MRO, you must note the refusal by checking the "Refusal to Test" box in Step 6 on Copy 2 of the CCF, chcclOng whether the specimen was adulterated or substituted and, if adulterated, noting the adulterant/reason. If there was another reason for the refusal, check "Other" in Step 6 on Copy 2 oftbe CCF, Bnd note the reason next to the "Other" box and on the "Remarks" Hnes, as needed. You must then sign and date the CCF. (e) As an employee, when you refuse to take a non .. DOT test or to sign a non·DOT form, you have not refused 10 take a DOT test. There arc no consequences under DOT agency regulations for refusing to take a non· DOT test. (65 FR 79526, Dec. 19,2000, as amended at 66 FR 41953, Aug. 9, 2001; 68 FR 31626, May 28, 2003; 71 FR 49384, Aug. 23,2006; 73 FR 35974, June 25, 2008; 75 FR 59108, September 27,2010] § 40,193 What happens when an employee does not provide a 5urnclent amount afurln. for. drug test? (a) This section prescribes procedures for shuations in which an employee docs not provide a sufficient amount of urine to permit a drug test (i.e., 4S mL ofurinc). (b) As the collector, you must do the following: (1) Discard the insufficient specimen, except where the insufficient specimen was out oflemperature range or showed evidence of adulteration or tampering (see §40.65(b) and (c». (2) Urge the employee to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or untillhe individual has provided B sufficient urine specimen, whichever occurs first. It is not a refusal 10 test if the employee declines to drink. Document on the Remarks line of the CCF (Step 2), and inform the employee of, the lime at which the three·hour period begins and ends. (3) If the employee refuses to make the aUempt to provide a new urine specimen or leaves the collection site before Ihe colleclion process is complete, you must discontinue the collection, note the fact on the "Remarks" line of the CCF (Step 2), and immediately notify the DER. This is a refusal to test. (4) If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, you must discontinue the collection, note the fact on the "Remarks"line of the CCF (Step 2), and immediately notify the DER. (5) Send Copy 2 oflbe CCFto the MRO and Copy 4 to the DER. You must send or fax these copies to the MRO and DER within 24 hoo" or the ne.t business day. (c) A:5 the DER, when the collector informs you that the employee: has not provided a sufficient amount of urine (see paragraph (b)(4) of this section), you must, after consultin, with the MRO, direct the employee to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen. (The MRO may perform this evaluation ifthe MRO has appropriate e.pertise.) Pale 45 or 101 (I) As the MRO, if another physician will perform the evaluation, you must provide the other physician with the following informal ion and instructions: (i) That the employee was required to take a DOT drug lest, but was unable to provide a sufficient amount of urine to complete the testj (ii) The consequences ofthe appropriate DOT &geoey regulation for refusing to take the required drug test; (iii) That Ihe referral physician must agree 10 follow lhe requirements of paragraphs (d) Ihrough (g) of this seclion. (2) [Reserved] (d) A5 the referral physician conductin, this evaluation, you must recommend that the MRO make one oflhe following detenninations: (I) A medical condilion has, or wilh a high degree ofprobabililY could have, precluded Ihe employee from providing a sufficient amounl of urine. A5lhe MRO, if you accept this recommendation, you must: (i) Check "Test Cancelled" (Slep 6) on Ihe CCF; and (ii) Sign and dale Ihe CCF. (2) There is not an adequale basis for determining lhal a medical condilion has, or wilh a high degree ofprobabilily could have, precluded the employee from providing a sufficient amount of urine. A5 the MRO, if you accept this recommendation, you must: (i) Cheek Ihe "Refusal 10 Tesl" bo. and "Olhcr" box in Slep 6 on Copy 2 ofthc CCF and nOie Ihe reason ne.llo the "Other" box and on the "Remarks" lines, as needed. (ii) Sign and dalelhe CCF. (e) For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunclion) or a medically doeumented pre-e.isting psycholo~cal disorder, bUI does not include unsupported assenions of"situational anxiety" or dehydration. (I) As the referral physician making the evaluation, after compleling your evaluation, you must provide a written statement of your recommendations and the basis for them to the MRO. You must not include in this statement detailed information on the employee's medical condition beyond what is necessary to explain your conclusion. (g) If, as the referral physician making this evaluation in the case of a pre.cmployment test. you determine that the employee's medical condition is a serious and permanent or long-term disability that is highly likely to prevent the employee from providing a sufficient amount of urine for a very long or indefinite period oftimc, you must set forth your determination and the reasons for it in your wrilten statement to the MRO. As thc MRO, upon receiving such a report. you must follow the requirements of §40.19S, where applicable. (h) As the MRO, you must seriously consider and assess the referral physician's recommendations in making your dctcnnination about whether the employee has a medical condition that has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine. You must rcpon your determination to the DER in writing as soon as you make it. (i) As the employer, when you receive a repon from the MRO indicating that a test is canc:elled 85 provided in paragraph (d)(I) ofthi"ection, you lake no further action with respect to the employee. The employee remains in Ihe random testing pool. [65 FR 79526, Dec. 19,2000, as amended al66 FR41953, Aug. 9, 2001; 75 FR 59108, September 27, 2010] § 40.195 What happen. when an Individual Is unable to provide a sufficient amount of urine for a pre- employment follow-up or retum-Io-c!uty t •• t because of a permanent or long-term medical condition? (a) This section concerns a situation in which an employee has a medical condition that prctludcs him or her (rom providing a sufficient specimen for a pre-cmployment follow-up or retum-to-duty test and the condition involves a permanent or long-term disability. As the MRO in this situation, you must do the following: (1) You must determine if there is clinical evidence that the individual is an illicit drug USer. You must make this determination by personally conducting, or causing to be conducted, a medical evaluation and through consultation with the employee's physician andlor Ihe physician who conducled the evaluation under §40.193(d). (2) !fyou do not personally condUCI the medical evaluation, you must ensure that one is conducted by a lieensed physician acceptable to you. (3) For purposes ofthis section, the MRO or Ihe physician conducling the evalualion may conduct an alternalive test (e.g., blood) as part ofthe medically appropriate procedures in determining elinical evidence of drug usc. (b) ]fthe medical evaluation reveals no clinical evidence of drug usc, as the MRO, you must report the result to the employer as a negative lest with written notalions regarding resulls ofbolh the evaluation conducted under §40.193(d) and any further medical ellamination. This report must state the basis for the determination that a permanent or long-term medical condition exists, making provision of a sufficient urine specimen impossible, and for the determination that no signs and symptoms of drug use exist. (I) Cheek "Ne,ative" (Step 6) on Ihe CCF. (2) Sign and date the CCF. (c) tflhe medical evaluation reveals clinical evidence of drug usc, as the MRO, you must report the result to the employer as a cancelled lest wilh written notations regarding results of both lhe evaluation conducted under §40.193(d) and any funhcr medical examination. This report must state that 8 permanent or long-term medical condition exists, making Pllle46orlOI provision or a sufficient urine specimen impossible, and state the reason for the determination that signs and symptoms of drug usc exist. Because this is a cancelled test, it docs not serve the purposes ofa negative test (i.e., the employer is not authorized to allow the employee to begin or resume perfonning safety-sensitive functions, because a negative test is needed for that purpose). (d) For purposes of this section, permanent or long-tenn medical conditions arc those physiological, anatomic, or psychological abnormalities documented as being present prior to the attempted collection, and considered not amenable to correction or cure for an extended period of time, if ever. (I) Examples would include destruction (any cause) of the glomerular filtration system leading to renal failure; unrepaired traumatic disruption of the urinary tract; or a severe psychiatric disorder focused on gcnito-urinary matters. (2) Acute or temporary medical conditions, such as cystitis, urethritis or prostatitis, though they might interfere with collection for a limited period of time, cannot receive the same exceptional consideration as the pcnnanent or long- term conditions discussed in paragraph (d)(I) ofthis section. [65 FR 79526, Dec. 19,2000, as amended at 66 FR 41953, Aug. 9, 2001) § 40.197 What happens when an employer receives a report oC a dilute specimen? (a) As the employer, if the MRO informs you that a positive drug test was dilute, you simply treat the test as a verified positive tcst. You must not direct the employee to take another test based on the fact that the specimen was dilute. (b) As an employer, ifthe MRO informs you that a negative test was dilute, take the following action: (1) lfthe MRO directs you to conduct a recollection under direct observation (i.e., because the creatinine concentration of the specimen was equal to or greaterthan 2mgldL, but less than or equal to 5 mgldL (see §40.155(c», you must do so immediately. (2) Otherwise (Le., if the creatinine concentration of the dilute specimen is greater than 5 mgldL), you may, but arc not required to, direct the employee to take another test immediately. (i) Such recollections must not be collected under direct observation, unless there is another basis for usc of direct observation (see §40.67 (b) and (c». (U) You must treat all employees the same for this purpose. For example, you must not retest some employees and not others. You may, however, establish different policies for different types of tests (e.g., conduct retests in pre- employment situations, but not in random test situations). You must inform your employees in advance of your decisions on these mailers. (c) The following provisions apply to all tests you direct an employee to take under paragraph (b) of this section: (1) You must ensure that the employee is given the minimum possible advance notice that he or she must go to the collection site; (2) You must treat the result of the test you directed the employee to take under paragraph (b) ofthis section-and not a prior test-as the test result of record, on which you rely for purposes of this part; (3) If the result ofthe test you directed the employee to take under paragraph (b)(I) ofthis section is also negative and dilute. you arc not permitted to make the employee take an additional test because the result was dilute. (4) lfthe result ofthe test you directed the employee to take under paragraph (b)(2) of this section is also negative and dilute, you arc not permitted to make the employee take an additional test because the result was dilute. Provided, however, that if the MRO directs you to conduct a recollection under direct observation under paragraph (b)( 1) of this section, you must immediately do so. (5) If the employee declines to take a test you directed him or her to take under paragraph (b) of this section,the employee has refused the test for purposes of this part and DOT agency regulations. [68 FR 31626, May 28,2003; 69 FR 64867, Nov.9, 2004; 73 FR 35974, June 25,2008] § 40.199 What problems always cause a drug test to be cancelled? (a) As the MRO, when the laboratory discovers a "fatal flaw" during its processing of incoming specimens (sec §40.83), the laboratory will report to you that the specimen has been "Rejected for Testing" (with the reason stated). You must always cancel such a test. (b) The following are "fatal naws": (I) There is no printed collecto"'s name and no collecto"'s signature; (2) The specimen ID numbers on the specimen bottle and the CCF do not match; (3) The specimen bottle seal is broken or shows evidence of tampering (and a split specimen cannot be redesignated, see §40.83(g»; and (4) Because of leakage or other causcs, there is an insufficient amount or urine in the primary specimen bottle for analysis and the specimens cannot be redesignated (see §40.83(g». (c) You must report the result as provided in §40.161. Paae 47 or 101 § 40.201 What problems always cause a drug test to be cancelled and may result In a requirement for another collection? As the MRO, you must cancel a drug test when a laboratol)' reports that any of the following problems have occurred. You must inform the DER that the test was cancelled. You must also direct the DER to ensure that an additional collection occurs immediately, if required by the applicable procedures specified in paragraphs (a) through (e) of this section. (a) The laboratol)' reports an "Invalid Result." You must follow applicable procedures in §40.159 (recollection under direct observation may be required). (b) Thelaboratol)' reports the result as "Rejected for Testing." You must follow applicable procedures in §40.161 (a recollection may be required). (c) The laboratory reports that the split specimen failed to reconfirm all of the primary specimen results because the drug(s)/drug metabolite(s) were not detected; adulteration criteria were not met; and! or substitution criteria were not met. You must follow the applicable procedures in § 40.187(b)- no recollection is required in this case, unless the split specimen creatinine concentration for a substituted primary specimen was greater than or equal to 2mg/dL but less than or equal to Smgl dL, or the primary specimen had an invalid result which was not reported to the DER. Both these cases require recollection under direct observation. (d) Thelaboratol)' reports that the split specimen failed to reconfirm all ofthe primal)' specimen results, and that the split specimen was invalid. You must follow the procedures in § 40.187(cXI) - recollection under direct observation is required in this case. (e) The laboratory reports that the split specimen failed to reconfinn all oflhe primary specimen results because the split specimen was not available for testing or there was no split laboratory available to test the specimen. You must follow the applicable procedures in § 40.1 87(e) - recollection under direct observation is required in this case. (f) The examining physician has detennined that there is an acceptable medical explanation of the employee's failure to provide a sufficient amount of urine. You must follow applicable procedures in §40.l93(d)(I) (no recollection is required in this case). [65 FR 79526, Dec. 19,2000, as amended at 73 FR 35974, June 25, 2008) § 40.203 What problems cause a drug test to be cancelled unless they are corrected? (a) As the MRO, when a laboratory discovers a "correctable flaw" during its processing of incoming specimens (see §40.83), the laboratory will atlempt to correct it. If the laboratory is unsuccessful in this attempt, it will report to you that the specimen has been "Rejected for Testing" (with the reason stated). (b) The following is a "correctable flaw" that laboratories must attempt to correct: The collector's signature is omilted on the certification statement on the CCF. (c) As the MRO, when you discover a "correctable flaw" during your review oflhe CCF, you must cancel the tcst unless the flaw is corrected. (d) The following arc correctable flaws that you must attempt 10 correct: (I) The employee's signature is omitted from the certification statement, unless the employee's failure or refusal to sign is noted on the "Remarks" line ofthe CCF. (2) The certifying scientist's signature is omitted on Copy I oflhe CCF for a positive, adulterated, substituted, or invalid test result. (3) The collector uses a non·Federal form or an expired CCF for the test. This flaw may be corrected through the procedure set forth in §40.205(b)(2), provided that the collection testing process has been conducted in accordance with the procedures of this part in an fD-IS-certified laboratory. During the period of October I, 2010 - November 30,2011, you are not required to cancel a test because of the use of an expired CCF. Beginning December I, 2011, if the problem is not corrected, you must cancel the test. [65 FR 79526, Dec. 19,2000, as amended at 66 FR41954, Aug. 9, 2001; 75 FR 59108, September 27, 2010; 76 FR 59578, September 27, 2011) § 40.205 How are drug test problems corrected? (a) As a collector, you have the responsibility of trying to successfully complete a collection procedure for each employee. (1) If, during or shortly after the collection process, you become aware of any event that prevents the completion of a valid test or collection (e.g., a procedural or paperwork error), you must try to correct the problem promptly, if doing so is practicable. You may conduct another collection as part of this effort. (2) If another collection is necessary, you must begin the new collection procedure as soon as possible, using a new CCF and a new collection kit. (b) If, as a collector, laboratory, MRO, employer, or other person implementing these drug testing regulations, you become aware of a problem that ean be corrected (see §40.203 ), but which has not already been corrected under paragraph (a) of this section, you must take all practicable action to correct the problem so that the test is not cancelled. Pare 48 0001 (1) If the problem resulted from the omission of required information, you must, as the person responsible for providing that information, supply in writing the missing information and a statement that it is true and accurate. For example, suppose you are a collector, and you forgot to make a notation on the "Remarks" line of the CCF that the employee did not sign Ihe certificalion. You would. when Ihe problem is called 10 your anenlion, supply. signed stalemenl that the employee failed or refused to sign the certification and that your statement is true and accurate. You must supply this information on the same business day on which you are notified oftbe problem, transmitting it by fax. or courier. (2) If Ihe problem is Ihe use of a non·F.d.ral form or an expir.d F.d.ral form, you musl provide a sign.d statement (i.eo, a memorandum for the record). It must state that the incorrect form contains all the information needed fOf a valid DOT drug test, and that the incorrect form was used inadvertently or as the only means of conducting 8 test, in circumstances beyond your control. The stalement must also list the steps you have taken to prevent future usc of non· Federal forms or expired Federal forms for DOT tests. For this flaw to be corrected, the test of the specimen must have occurred at a :mfS~enified laboratory where it was tcsted consistent with the requirements of this part. You must supply this information on the same business day on which you arc notified of the problem, transmiuinl it by fu or courier. (3) You must maintain the written documentation ofa correction with the CCF. (4) You must mark Ihe CCF in such a way ( •. g .• stamp noling correclion) as 10 make it obvious on lhe face oflhe CCF that you corrected the flaw. (c) If the correction docs not take place, as the MRO you must cancel the test. [65 FR 79526. Dec. 19.2000. as am.nd.d al66 FR 41954. Aug. 9. 20011 § 40.207 What Is the effee! of a cancelled drug test? (a) A cancelled drug test is neither posilive nor negative. (1) A5 an employer. you must not attach 10 a cancelled test the consequenccs ofa positive test or other violation of a DOT dIU, lesling regulation ( •. g.. removal from a safcty·sensitiv. posilion). (2) M an employer, you must not usc a cancelled test for the purposes ofa negative test to authorize the employee 10 perform safety·sensitive functions (i.e., in the case ofa pre-employment, rdum·to-duty, or follow-up test). (3) However, as an employer, you must not direct a recollection for an employee because a test has been cancelled, except in the situations cited in paragraph (a)(2) oflhis section Of other provisions of this part that require another test to be conducl.d ( •. , .• §§40.159(a)(5) and 40. 187(b)(2). (c)(I). and (.». (b) A canc.lI.d lesl does nol counlloward compliance wilh DOT .. quir.m.nls ( •. , .• b.ing appli.d loward Ihe number of tests needed to meet the employer'S minimum random testing rate). (c) A cancell.d DOT ICSI docs nOl provide a valid basis for an .mployer 10 conduct a non·DOT lesl (i. •.• a ICSI und.r company aUlhoriIY). [65 FR 79526. Dec. 19.2000. as am.nd.d al7J FR 35975. June 25, 2008] § 40.208 What problem requIres corrective action but does not result In the canc.Uatlon of. test? (a) If, as a laboratory, collector, employer, or other person implementing the DOT drug testing program, you become aware that the specimen temperature on the CCF was not checked Dnd the "Remarks" line did not contain an entry regarding the temperature being out of range, you must take corrective action, including securing a memorandum for the record explaining the problem and taking appropriate action to ensure that the problem does not recur. (b) This .lTOr does nol resull in Ih. cancellalion oflhe lesl. (c) As an employer or service agent, this error, even though not sufficient to cancel a drug test result, may subject you 10 enforcement action under DOT agency regulations or Subpart R of this part. [66 FR41954. Aug. 9. 2001] § 40.209 What procedural problems do not result in the canceUatlon of a test and do not requIre corrective action? (a) As a collector, laboratory, MRO, employer or other person administering the drug testing process, you must document any errors in the testing process of which you become aware, even if they are not considered problems that will caus. a lesllO be cancelled as list.d in Ihis subpart. Decisions aboullh. ullimale impacl of lhes •• rror.; will b. d.l.rmined by olh.r adminislralive or I.gal proceedings, subjecllo \he limitalions of paragraph (b) oflhis se.lion. (b) No p.rson concerned with lhe tesling process may clccla .. a tesl cancelled based on an .rror lhal docs nol have a significant adverse effect on the righl oftbe employee to havc a fair and accurate test. Matters that do not result in the cancellation of a lest include, but arc not limited to, the following: (1) A minor administrative mistake (e.g., the omission of the employee's middle initial, a transposition of numbers in Ih •• mployee·s social securily numb.r.lhe omission oflh. DOT Agency in SI.p 1·0 oflhe CCF.) (2) An .rror Ibal does nol alf.cl.mployee proleclions und.r Ihis part ( •. g .• Ih. colleclo~s failu"lo add bluin, agcnllo Ihe 10il.1 bowl. which adversely alfeclS only lhe abilily oflhe colleclor 10 d.lccllampcring wilh Ih. specim.n by Ih •• mployee); (3) The colleclion of a specim.n by a collector who is .. quired 10 have been lrained (see §40.33). bul who has nol met this requirement; Plac49oftOI (4) A delay in the collection process (sec §40.61(a»; (5) Verification of a test result by an MRO who has the basic credentials to be qualified as an MRO (sec §40.121(a) through (b» but who has not met training andlor documentation requirements (see §40.121(c) through (e»; (6) The failure to directly observe or monitor a collection that the Nle requires or permits to be directly observed or monitored, or the unauthorized usc of direct observation or monitoring for a collection; (7) The fact that I lest wasconducled in a facility thai docs not meet lhe requirements of §40.41; (8) If the specific name oflhe cOlirier on the CCF is omitted or erroneOlls; (9) Personal identifying information is inadvertently contained on the CCF (e.g., the employee signs his or her name on Copy I); or (10) Claims that the employee was improperly selected for testing. (c) As an employer or service agent, these types of errors, even though not sufficient to cancel a drug test result, may subj~t you to enforcement action under DOT agency regulations or action under Subpan R of this pan. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 FR 59108, September 27, 2010] Baker v. Abo, Not Reported In F.Supp.2d (2003) 2003 Wl21639151 KeyCilc Yellow Flng - Negative Trenlmenl Distinguished by Miller v. Redwood Toxicology Labonuory, Inc., D_Minn ., September IS. 201 J 2003 WL 21639151 Only the Westlaw citation is currently available. United States District Court, D. Minnesota. Shawn George M. BAKER, Plaintiff, v. Osama S. ABO, individually; National Medical Review Offices, Inc.; John Doe, an unknown individual, and ABC Company, an unknown legal entity, Defendants. No. Civ. 01-1248 JRTJSM. I July 2,2003. Altorncys and Law Firms Jay D. Olson and Lawrence H. Crosby, Crosby & Associates, SI. Paul, MN, for plaintiff. Carolin J. Nearing and Robert Mahoney, Gemghty, O'Loughlin & Kenney, SI. Paul, MN, for defendant National Medical Review Offices, Inc. MEMORANDUM OPINION AND ORDER TUNHEIM,J. *1 Plaintiff Shawn Baker worked for the Star Tribune from 1976 until he was terminated on October 1,1999, as a result of a positive drug tesl. Plaintiff brought this action against National Medical Review Offices (NMRO) alleging that NMRO failed to use appropriate procedures when collecting his sample, but nonetheless reported the positive result to his former employer, the Star Tribune. I Plaintiff asserted claims of negligence, breach of contract, and violation of conSlitutional rights. Plaintiffis no longer pursuing the breach of contract or conslitutional claims, therefore those claims are dismissed with prejudice. For the reasons discussed below, defendant's motion for summary judgment on the remaining claims is gmnted, and the negligence claims arc also dismissed with prejudice. BACKGROUND Plaintiffhas a "Class B" driver's license, and drove trucks for the Star Tribune. The Star Tribune has a policy prohibiting illegal drug use, the violation of which is a ground for tennination. Plaintiff tested positive for marijuana on two occasions in 1995, and he docs not dispute those results. Plaintiffs employment was terminated as a result of those two positive drug teSls, but plaintiff was reinstated under a "last chance agreemenl." The agreement stated that plaintiffs employment would be terminated permanently if he tested positive for drugs again. On September 21, 1999, plaintiff was randomly chosen for drug testing. At the time, the Star Tribune engaged NMRO to conduct the collection process and test the collected sample. Plaintiff was familiar with the process because he had been tested on at least two prior occasions, and he complains that there were several irregularities in the testing process. Plaintiff noticed the following irregularities: (I) the cup used to collect the sample was not packaged in a protcctive, sealed wmpper when it was given to him; (2) the NMRO employee who handed the cup to plaintiff had his index finger in the cup as he handed it over to plaintiff; (3) and plaintifrs usual testing number was not the number used to identify the specimen. 2 Because the collection kit was unwrapped, plaintiffrequested a different kil. The NMRO employee said that all the kits had been opened, and insinuated that plaintiff was refusing to tesl. Plaintiff responded that he was not refusing to teSl, and provided a urine sample using the previously opened kit. 3 Plaintiff claims that he has not smoked or used marijuana since 1995. However, three days after the teSl, on September 24, 1999, plaintiff was informed that the sample had teSled positive for marijuana. NMRO asked plaintiff if he wanted them to test the split sample, and plaintiff declined. 4 Plaintiff inslead requested permission to provide a new sample, but the Star Tribune and NMRO denied his requcsl. He also calied his personal physician to requeSl a teSl, but his physician was unavailable. Plaintiff was terminated on October I, 1999. That same day, plaintiff went to an independent testing facility where he submitted a urine specimen for testing. 5 The result was negative. Plaintiff was unemployed for about a year following his termination ITom the Star Tribune. He alleges that he WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. eaker v. Abo, Not Reported In F.Supp.2d (2003) 2003 WL 21639151 lost his pension and has been unable to find comparable employment. *2 Plaintiff filed a grievance with his union, which the union did not pursue. Plaintiff then filed this action against the Star Tribune and amended the complaint to include claims against NMRO. The Star Tribune moved for judgment as a maUer of law or summary jUdgment, which was granted. 6 ANALYSIS I. Standard of Review Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a maUer oflaw." Fed.R.Civ.P. 56. Only disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby. IlIc .. 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.ld. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party.ld. The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a rnaUer of law. Celotex Corp. v. Catrett. 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetlla Casllalty & SlIrety Co., 612 F.2d 1076, 1077 (8 th Cir.1980). However. the nonmoving party may not merely rest upon allegations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc .. 285 F.3d 688, 691 (8 th Cir.2002). I I. Negligence Plaintiff must establish evidence of duty, breach, causation, and injury to maintain his negligence claim. Louis v. Louis. 636 N.W .2d 314, 318 (Minn.2001) ("A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (I) the existence ofa duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach ofthat duty being the proximate cause of the injury."). For the purposes of this motion, defendant does not dispute that it owed a duty to plaintiff, that the duty was breached, or that plaintiff suffered an injury. 7 The primary issue the Court resolves, therefore, is causation. Ahhough the parties focus on causation, each frames the issue differently. Defendant contends that to survive summary jUdgment, plaintiff must offer evidence that would allow a reasonable fact-finder to detennine that the claimed testing irregularities caused the positive result. Expert evidence is required, defendant argues, because the potential causes of false positive drug tests are beyond the expertise of the ordinary juror. Plaintiff fonnulates the issue somewhat differently, and argues that because the test was conducted in violation of federally-mandated testing procedures, the test should have been voided and his employer never infonned of the test result. Plaintiff essentially makes a causation per se or strict liability argument- asserting that where testing procedures are not followed, testing companies are liable for all subsequent injuries, regardless of the effect of the irregularity on the test resuh. *3 Consistent with this argument, plaintiff contends that expert testimony is not required in this case, and points to cases from other jurisdictions to support that argument. In particular, he urges the Court to examine Hodel v. Director oj Revenlle. 61 S.W.3d 274 (Mo.Ct.App.2001). 8 In Hodel. a school bus driver was tenninated after testing positive for marijuana. He challenged the resuh, arguing that the testing procedure "wasn't what [he] was used to." The claimed irregularities included a failure to properly seal the collection boUle and initials on the boUle that were not plaintiffs. Plaintiff apparently did not offer any expert testimony regarding the possible cause of the false positive. The reviewing court detennined that the concems about contamination or the possibility that the sample was not plaintiffs provided adequate evidence for the trial court to discount the test result. Hodel. however, does not support plaintiffs argument that the reporting itself, rather than the false resuh, amounts to actionable negligence. Instead, the Hodel court specifically contemplated the causation element, and did not rest on a WESTLAW © 2016 Thomson Reuters. No claim to origtnal U.S. Government Works. 2 Baker v. Abo, Not Reported In F.Supp.2d (2003) 2003 WL 21639151 strict liability theory. If plaintifrs theory were corrcct, the court in Hodel would have needed to go no further than recognizing the irregularity and the adverse employment action. Indeed, were plaintiffs theory viable, there would be no need for any further action in this case because under plaintiffs rationale, every positive drug test where there was any irregularity in the testing procedure-however minor- would result in liability for the testing company. Plaintiffs theory has not been accepted by courts in Minnesota, and the Court has not found support for such a theory in other jurisdictions. See, e.g .. Christensen v. Northern Slates Power Co .. 25 N.W.2d 659, 661 (Minn.1946) (rejecting post hoc ergo propter hoc theory in dispute regarding what killed fish in plaintifrs lake); Donovoll v. Bioject, Inc., No. C8-OO- 1112, 2001 WL 243096 (March 13, 2001 Minn. Ct.App.) (plaintiff must prove causation in strict liability action just as in negligence action). Because the Court rejccts plaintifrs "strict liability" or "causation per se" theory, the Court next determines whether the evidence plaintiff has presented, including testimony from a medical doctor, could support a finding that the defendant'S actions caused the false positive. While the Court is mindful that issues of causation often involve questions of fact and "seldom can be disposed of on a motion for summary judgment," Moe v. Springfield Milling Corp .. 394 N.W.2d 582,585 (Minn.Ct.App.1986) (quotation omitted), summary judgment may be appropriate where the nonmoving party has failed to point to any evidence that would allow the jury to reasonably find for the nonmoving party. DLH. Inc. v. Russ. 566 N.W.2d 60, 71 (Minn.l997) (citingAllderson v. Liberty Lobby. Inc .. 477 U.S. 242, 252 (1986)); DeCourcyv. TnlSlees a/Westminster Presbyterian Church. Inc .. 134 N.W.2d 326. 328 (1965). *4 Causation must be established beyond the point of speculation, DeCourcy. 134 N.W.2d at 328, but expert testimony is not always required. See Stahlberg v. Moe, 166 N.w.2d 340, 345 (Minn.t969); see also Smith v. Runk, 425 N.W.2d 299, 301 (Minn.Ct.App.1988). Instead, expert testimony is necessary only where the "question involves obscure and abstruse medical factors such that the ordinary layman cannot reasonably possess well-founded knowledge of the matter and could only indulge in speculation in making a finding." Gross v. Victoria Station Farms. Inc., 578 N.W.2d 757, 762 (Minn.1998) (quoting Bernloehr v. Central Livestock Order Buying Co .. 208 N.W.2d 753, 755 (Minn.l973)). For example, expert testimony was not required in a medical malpractice case that relied on a "slip and fall" theory. See Tousignant v. St. Lauis Co .. Minn., 615 N.W.2d 53, 59-60 (Minn.2000) (holding that no expert testimony was required where elderly plaintiff claimed that nursing home failed to restrain her and she fell and broke her hip as a result). In contrast, expert testimony is required where the causation issues involve qucstions beyond the ken of ordinary lay witnesses. For example, expert testimony was required where the question was what caused the onset of lameness in a show horse, because ordinary lay people arc not versed in horse Inmeness or horse anatomy. Gross, 578 N.W.2d at 762. Similarly, where plaintiffs claimed that they were injured by exposure to nitrogen dioxide gas from the engine exhaust of DO icc resurfacing machine, expert testimony was required. Anderson v. Cit yo/Coon Rapids. 491 N.W.2d 917. 920 (Minn.Ct.App.1992). For the purposes of this motion, the Court accepts as true plaintifrs contention that he did not smoke or usc marijuana prior to the September 21 test. However, plaintiff must point to some testimony or evidence that would allow a reasonable fact-finder to determine that defendant'S negligence caused thc false positive result. Plaintiff has submitted the expert affidavit of Dr. Michael Rath, who opined that "a collector cannot, under any circumstances, place the collector's hand or finger into the collection container since this may skew the test." Dr. Rath did not opine that such a breach could have caused the positive result in this test. Plaintiff testified at a deposition that he saw nothing in the transparent collection cup, and saw nothing on the collector's finger. Plaintiff also docs not assert that the sample was somehow switched, instead he admits that the collector accurately wrote plaintifrs identification number on the "Custody and Control" form. In sum, plaintiff simply has failed to allege facts that would allow a reasonable fact-finder to determine that defendant's negligence caused the false positive. III. Defendant Abo Plaintiff has also brought claims against Osama S. Abo, individually. It docs not appear from the record that defendant Abo has been served in this maUer. Pursuant to Federal Rule of Civil Procedure 4(m}. the Court will dismiss the defendant Abo ifplaintiff does not show proof of service, or good cause for the failure to serve. Plaintiff has ten (I O) days from the date of this Order to effectuate service or inform the Court of good cause for the delay. WESTLAW © 2016 Thomson Reuters. No claim 10 original U.S. Government Works. 3 Baker v. Abo, Not Reported In F.Supp.2d (2003) 2003 WL 21639151 ORDER *5 Based upon the foregoing, the submissions of the panics, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that: 2. Plaintiff has ten (10) days from the date of this Order to effectuate service on defendant Abo or inform the Coun of good cause for the delay. Upon expiration of the ten days, the Clerk of Coun is directed to enter judgment in favor of defendant and against plaintiffifplaintiffhas failed to comply with the terms of this Order. I. Defendant National Medical Review Office's motion for summary judgment [Docket No. 45] is GRANTED. Plaintiffs claims against National Medical Review Offices, Inc. arc DISMISSED WITH PREJUDICE. All Citations Not Reponed in F.Supp.2d, 2003 WL 21639151 Foolnotes 1 Plaintiff also sued the Slar Tribune. On March 30, 2002, the Court dismissed all claims againsl the Star Tribune. 2 3 4 5 6 7 8 Although plaintiff asserts that the testing number was not his usual number, he does not in this motion assert that the sample that tested positive was not his, or that somehow a switch occurred after he provided the sample. The record Indicates that plaintiff placed his initials over the tamper evident seal, and signed the Custody and Controt Form. In addition, the number on the form correctly set forth plaintiffs employee number. Plaintiffs amended complaint sets forth a claim that the sample was not his, however, this theory of liability is not discussed in the instant motion. Further, based on the evidence plaintiff has produced, no reasonable fact-finder could find that the sample which tested positive did not belong to plaintiff. Plaintiff was aware that a refusal to test is equivalent to a failed test. Pursuant to federat regulations, NMRO collects a specimen boUle and a split specimen boUte. The sample from the specimen bottle is tested first. If the result is positive, a confirmation test Is run; if that second test confirms the positive result, the employee may request that the remaining "split specimen" be tested as well. As noted, plaintiff had attempted to submit a new sample prior to October 1, but there was some confusion about who could order the re-test, and who would have to pay for it. Plaintiffs negligence and breach of contract claims against the Tribune were barred by a collective bargaining agreement because they were not brought within six months. Plaintiffs constitutional claims were foredosed for lack of a private right of action. Whether defendant testing companies owe a duty to employees is not a settled question under Minnesota law, and the Court notes contrary authority in other jurisdictions. Compare Ragsdale v. Mount Sinai Med. Ctr., 770 SO.2d 167 (Fla.Ct.App.2000); Elliot v. Laboratory SpeCialists, Inc., 5BB So.2d 175 (La.Ct.App.1992) (drug testing company owed duty of care to emptoyee) Herbert v. Placid Refining Co., 564 So.2d 175 (La.Ct.App.1991) (drug testing company owes no duty of care to employee, only to employer). The trend, and In the Court's view, the better result, is to recognize a duty. See Cooper v. Laboratory Corp. of America Holdings, 150 F.3d 376, 379 (4 th Clr.199B) (recognizing trend). See also Mission Petroleum Carriers, Inc. v. So/omon,_ S.W.3d _ (Texas 2003) (employers who conduct drug testing pursuant to Department of Transportation regulations owe no duty of care to employees). Plaintiff also relied on Mission Petroleum Carriers, Inc. v. Solomon, 37 S.W.3d 4B2 (Tex.Ct.App.2000). After oral arguments were heard In this case, however, the Mission Petroleum case was reversed by the Texas Supreme Court, see Mission Petroleum Carriers, Inc. v. SoIomon,_ S.w.3d _ (Texas 2003). The Mission Petroleum case does not support plaintiffs argument. End of Document e 2016 Thomson Reuters, No claim to original U,S. Government Works. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 8allslrlerl v. Express Drug Screening, LLC, Nol Reported In F.Supp.2d (2008) 2008 WL 906236 2008 WL 906236 Only the Westlaw citation is currently available. United States District Court, E.D. Wisconsin. Joseph A. BALISTRIERI, Plaintiff, v. EXPRESS DRUG SCREENING, LLC, Union Pacific Railroad Company, Defendanls. No. 04-C-0989. I March 31, 2008. Attorneys and Law Firms John S. Bishof, Jr., Law Office of John Bishof PC, Chicago, IL, for Plaintiff. Wayne M. Yankala, Mingo & Yankala, Aaron R. Berndt, Brian D. Baird, Patrick D. McNally, Borgelt Powell Peterson & Frauen SC, Milwaukee, WI, Victor E. Plantinga, Rose & De Jong, Brookfield, WI, for Defendants. ORDER GRANTfNG IN PART AND DENYING IN PART DEFENDANT UNION PACIFIC RAILROAD COMPANY'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT EXPRESS DRUG SCREENING, LLC'S, MOTION FOR SUMMARY JUDGMENT C.N. CLEVERT, JR., District Judge. • I Plaintiff, Joseph A. Balistrieri, instituted this case against Union Pacific Railroad Company (UPR) and Express Drug Screening, LLC (EDS) on October 12, 2004. UPR was Balistrieri's employer and EDS administered drug and alcohol testing of UPR employees. In his Amended Complaint, Balistrieri alleges (I) various acts of negligence by both defendants (Counts II, III); (2) violation of the Americans with Disabilities Act, 42 u.s.c. § 12101, et. seq., by UPR (Count I); (3) vicarious liability against UPR for EDS's negligent conduct (Count IV); (5) willful and wonton misconduct by UPR (Count V); and wrongful discharge by UPR (Count VI). 1 This court has jurisdiction over Balistrierils federal claim pursuant to 28 U.S.C. § 1331 and may exercise supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367. Now pending before the court are separate summary judgment motions filed by EDS and UPR. I. BACKGROUND Joseph Balistrieri was employed by UPR as a locomotive engineer. (Am.CompI.1I 12.) As a consequence, his employment and pursuant to 49 C.F.R. § 20140(b),2 he underwent random drug and alcohol testing in May 1997, October 1999, May 2000, and April 2003. (Balistrieri Dep. at 7-9.) On July 26, 2003, Balistrieri was again selected to undergo a random drug and alcohol test. (Am.CompI.1I 13.) That test was administered by Theretha King, owner, manager, and employee of EDS. (ld. 11 16.) King had administered similar tests to Balistrieri previously. (Balistrieri Dep. at 10-11 .) Title 49, Part 40, of the Code of Federal Regulations governs the procedures for drug and alcohol testing for transportation employees. Sections 40.63 and 40.193 have been raised by the parties as applicable to this case. Relevant portions of these sections are the following: § 40.63 What steps does the collector take in the collection process before the employee provides a urine specimen? As the collector, you must take the following steps before the employee provides the urine specimen: (b) Instruct the employee to wash and dry his or her hands at this time. You must tell the employee not to wash his or her hands again until after delivering the specimen to you .... (c) Select, or allow the employee to select, an individually wrapped or sealed collection container from collection kit materials. Either you or the employee, with both of you present, must unwrap or break the seal of the collection container. You must not unwrap or break the seal on any specimen bottle at this time .... (d) Direct the employee to go into the room used for urination, provide a specimen of at least 45 mL, not flush the toilet, and return to you with the specimen as soon as the employee has completed the void. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Ballstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 (I) Except in the case of an observed or a monitored collection ... neither you nor anyone else may go into the room with the employee. (2) As the collector, you may set a reasonable time limit for voiding. '2 (e) You must pay careful attention to the employee during the entire collection process to note any conduct that clearly indicates an attempt to tamper with a specimen (e.g., substitute urine in plain view or an attempt to bring into the collection site an adulterant or urine substitute) .... § 40.193 What happens when an employee does not provide a sufficient amount of urine for a drug test? (a) This section prescribes procedures for situations in which an employee does not provide a sufficient amount of urine to permit a drug test (i.e., 45 mL of urine). (b) As the collector, you must do the following: (2) Urge the employee to drink up to 40 ounces offtuid, distributed reasonably through a period of up to three hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. It is not a refusal to test if the employee declines to drink. Document on the Remarks line of the CCF (Step 2), and inform the employee of, the time at which the three-hour period begins and ends. (4) If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, you must discontinue the collection, note the fact on the "Remarks" line of the CCF (Step 2), and immediately notify the DER. The July 26, 2003, testing consisted of a Breathalyzer test and a urine screening. (Am.Compl.~ 16.) The urine sample was to be collected in a women's bathroom at UPR's Butler's Freight Yard in Milwaukee, Wisconsin. (Am.Compl.~~ 15,21) The bathroom consisted of two rooms: a locker room area and a bathroom area, separated by a door. (Nahulak Dep. at 38.) Inside the bathroom area were a sink and one toilet enclosed by a stall with a door. (Balistrieri Dep. 19-20.) Testing began at 8:00 a.m. with Balistrieri's breathalyzer test conducted at about 8:04 a.m. (Am.Compl.~ 15, 17.) Around 8: 10 a.m ., King asked Balistrieri if he was ready to provide a urine sample, to which he replied he was not. (Id. ~ 18.) King then informed him that he had three hours to provide a urine sample, (Yakala Aff. Ex. 4 at 185), and that he should let her know when he is ready, (Am.Compl.~ 18). Balistrieri then went to the Yard Master's office, in the same building, for a cup of coffee. (Balistrieri Dep. 32-33.) Around 10:00 a.m., King approached Balistrieri, in the nearby lunchroom, and asked ifhe was ready to provide a urine sample. (Bishof Aff. Ex. 4 at 209-10.) He responded that he was not ready and asked King if she had "anything to do that day." (Id.) She replied that she had a family function to attend. (Id.) At about 10:30 a.m., Balistrieri returned to the bathroom area and informed King that he had to urinate. (Balistrieri Dep. 45.) At that time, King provided Balistrieri a collection container. (Am. Compl. ~ 19, Balistrieri Dep. 30.) Balistrieri then went into the toilet stall. King gave some general instructions to Balistrieri while he was in the stall. (Balistrieri Dep. 48.) This attempt was unsuccessful. (Id at 52.) Balistrieri then exited the stall; King was in the restroom when he exited. (Id) He proceeded to the nearby lunchroom and drank water. (Id at 53.) While in the lunchroom, Balistrieri and his supervisor, John Nahulak, discussed the testing. (Id) At about 10:56 a.m., Nahulak warned Balistrieri that he had only fifteen minutes left to provide a urine sample. (PI.'s Br. in Opp. to UPR Mot. for Summ. J. 3.) After that conversation, Balistrieri returned to the bathroom area and made a second attempt to provide a urine sample; again without success. Balistrieri left the stall, returned to the lunchroom for more water, and after n few minutes, returned a third time to the restroom. (Balistrieri Dep. at 59-60.) While he was making his third attempt, he overheard King and Nahulak talking, but was not sure if they were in the bathroom or right outside the door. Nahulak then stated to Balistrieri "[ylou have six minutes. If you don't' go, you are going to be fired." (Id at 61.) '3 At 11:10 a.m., King notified Balistrieri that the testing period ended and that his failure to provide a sample was considered a refusal. 3 (Am.Compl.lI 26.) Following the testing, Balistrieri received a Notification of Certificate Suspension from his supervisor at UPR for non-compliance with FRA regulations due to his failure to provide a urine sample. (Id 1128.) On July 31,2003, he received a Notice of Formal Investigation from UPR, (Id ~ 31), and on September 12, 2003, a formal investigation was conducted, (Id ~ 32). During that period, Balistrieri saw Dr. Basil Jackson, who, on WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Ballstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 August 8, 2003, concluded that Balistrieri sufTers from "shy bladder syndrome." (Balistrieri AfT. ~ 17.) On September 20, 2003, Balistrieri was terminated from his employment with UPR and notified that his engineer certificate was revoked for thirty days for refusing to submit to a federal random drug test. (Am.Compl.~ 33.) The decision to tenninate was appealed by Balistrieri's union representative to UPR's Director of Labor Relations, Terry M. Stone, on November 4, 2003. (Stone Aff. ~ 2 and Ex. I). In addition, Balistrieri appealed UPR's decision to revoke his engineer certificate to the Federal Railroad Administration's (FRA) Locomotive Engineer Review Board (LERB). On February 27, 2004, Balistrieri signed a leniency reinstatement agreement with UPR and returned to work without back pay. (Am.Compl .~ 69.) On June 24, 2004, the LERB, in a decision titled "Review and Determinations Concerning the Union Pacific Railroad Company's Decision to Revoke Mr. J.A. Balistrieri's Locomotive Engineer Certificate," upheld UPR's revocation of Balistrieri's certificate for refusal to take a random drug test. (Stone AfT. Ex. 2.) Balistrieri did not appeal the LERB's decision under 49 C.F.R. Part 240. Balistrieri filed this law suit on October 12, 2004. On November 29, 2005, UPR moved for declaratory judgment, arguing that the Agreement signed by Balistrieri bars this suit. This court denied that motion on April 6, 2006. In addition, on March 31, 2006, American Family Mutual Insurance Company filed an intervenor complaint asking to be relieved of any duty to indemnitY or defend its insured, EDS. This court permitted American Family to intervene on June 16,2006, and on August 31, 2007, granted its motion for summary judgment dismissal. The defendant's now move, separately, for summary judgment against Balistrieri. II. DISCUSSION Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrell, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the initial burden of demonstrating that it is entitled to summary judgment. Id. at 323. Once this burden is met, the nonmoving party must designate specific facts to support or defend its case. Id. at 322-24. '4 In analyzing whether a question offact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.C!. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some factual dispute does not defeat a summary judgment motion; however, there must be a genuine issue of material fact for the case to survive.ld. at 247-48. ~~Material" means that the factual dispute must be outcome- determinative under governing law. Contreras v. City of Chicago, 119 F .3d 1286, 1291 (7th Cir. I 997). Failure to support any essential element ofa claim renders all other facts immaterial. Celotex, 477 U.S. at 323. A "genuine" issue of material fact requires specific and sufficient evidence that, if believed by a jury, would actually support a verdict in the nonmovant's favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A. Union Pacific Railroad Company's Motion for Summary Judgment I. Americans With Disabilities Act Claim In his Amended Complaint, Balistrieri claims that UPR violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by "discriminating against plaintifT because of his disability, paruresis, commonly known as "shy bladder syndrome." (Am.Compl.~ 36.) However, in responding to UPR's motion for summary judgment, Balistrieri appears to have realized critical failings in his original ADA claim. His Briefin Opposition to UPR's Motion for Summary Judgment creatively restructures the ADA claim; he now asserts that UPR (erroneously) regarded him as "disabled" due to a drug and alcohol use and then failed to reasonably accommodate that (nonexistent) disability. Both premises are addressed below. The ADA urequires covered entltlcs, including private employers to provide 'reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship.' WESTLAW © 2016 Thomson Reulers No claim to onginal U.S. Government Works. 3 Banotrlerl v. Expreos Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 " Toyota Motor MIg., Ky., Inc. v. Williams, 534 U.S. 184 193, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (ciling 42 U.S.C. § 12112(b)(5)(A)). A "qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id (ciling § 12111 (8)). The word "disability" is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." § 12102(2). To be considered disabled under subsection § 12102(2)(A), the plaintiff"must initially prove that he or she has a physical or mental impairment." Toyota Motor MIg.. 534 U.S. at 194. In addition, the impairment must "substantially limit" the plaintiff in a "major life activity." While no agency has been expressly authorized to interpret the term "disability" as used in the ADA, the EEOC has promulgated regulations on the subject, and courts have used these regulations as guideposts. See id; see also Squibb v. Mem'l Med Or., 497 F.3d 775, 781 n. 2 (7th Cir.2007) (noting that the Seventh Circuit "continues to use the guidance provided by the regulations, while acknowledging that they cannot 'obscure the ADA's demanding standard for qualifying as disabled.' " (quoling EEOC v. Sears. Roebuck & Co .• 417 F.3d 789, 800-01 (7th Cir.2005)). ·5 Under the fedeml regulations, a substantial limitation is one in which the individual "is unable to perform such an activity or is ·significantly restricted as to the condition, manner or duration under which [he] can perform it, as compared to an average person in the general population." Squibb. 497 F.3d at 781 (quoting 29 C.F.R. § I 630.2(j)(1)). The regulations interpret "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(1 ). Other considerations in deciding whether a person is disabled under the ADA include' "the nature and severity of the impairment, the duration and expected dumtion of the impairment, and the permanent or long term impact or the expected permanent or long term impact of or resulting from the impairment. I " Kampmier v. Emeritus Corp., 472 F.3d 930, 937 (7th Cir.2007) (quoling 29 C.F.R. § 1630.2(j)(2)(i)-(iii». Applying these provisions to the case at hand, the court cannot conclude that Balistrieri's shy bladder syndrome qualifies him as disabled under § 12102(2)(A) of the ADA. There is no evidence in the record that the condition limits significantly his ability to care for himself, perform manual tasks, or engage in other major life activities. Balistrieri appears to acknowledge, as his Brief in Opposition to UPR's Motion for Summary Judgment makes no reference to "shy bladder syndrome" as a disability under the ADA, and he provides no support for such a proposition. (PI.'s Br. in Opp. to UPR Mot. for Summ. J. 6.) However, as hinted above, Balistrieri's new strategy asserts that he qualifies as disabled under ADA § 12102(2)(C). Under that provision, uindividuals who are 'regarded as' having a disability are disabled within the meaning of the ADA." SlIlIon v. UniledAir Lines. 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). An individual may qualifY under § 12 J02(2)(C) if "(I) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities." Sullon, 527 U.S. at 489. In other words, the defendant must have an erroneous belief that the plaintiff has a substantial limiting impairment when (I) the individual does not have such an impairment, or (2) the individual has an impairment but it is not so limiting. See id The Supreme Court has observed that the purpose of this subsection was to "cover individuals rejected from a job because of the myths, fears and stereotypes associated with disabilities." Id. at 489-90 (qlloting 29 C.F.R.App. § 1630.2(1)). Balistrieri submits that "the actions of the defendant against the plaintiff are those resulting from a clear belief that Mr. Balistrieri was a drug andlor alcohol user. When in fact he was not ." (PI.'s Br in Opp. to UPR's Mot. for Summ. J. 7.) He further asserts that § 12114(b)(3) protects him under these circumstances. That section provides that individuals "erroneously regarded as engaging in [illegal drug] use, but [ ] not engaging in such use" are not excluded from the definition of qualified individual with a disability under the Act. He argues that if UPR "would have made a reasonable accommodation to the plaintiff regarding the testing of drugs, defendant would have gotten proofthat plaintiffwas drug and alcohol free." ·6 Assuming for the moment that UPR treated Balistrieri as a substance abuser, Balistrieri still must qualifY as an individual with a disability to be protected under the ADA. I ndeed, he provides no mtionale for how being tagged as a WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Banstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 substance abuser qualifies him as disabled or how his failure to provide a urine sample is based on a disability. 4 Having an erroneous belief that an individual is a substance abuser is not itselfa violation of the ADA; UPR had the responsibility and authority to test Balistrieri for substance use and abuse, as sanctioned by the ADA. See § 12114(e). 5 As there is no argument that Balistrieri is actually "disabled" or regarded as "disabled" under the ADA, his ADA claim is dismissed. 2. State Law Tort Claims a. Preemption of Tort Claims by the Federal Railroad Safety Act UPR asserts that Balistrieri's common law claims of negligence (Count II), negligence through vicarious liability (Count IV), willful and wonton misconduct (Count V), and wrongful discharge (Count VI) are preempted by the Federal Railroad Safety Act (FRS A). "FRSA was enacted in 1970 to promote safety in all areas of railroad operations and to reduce railroad-related accidents and to reduce deaths and injuries to persons ...... CSX Transp., Inc. v. Eastenl'ood, 507 U.S. 658, 662, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); see also 49 U.S.C. § 20101. Under the FRSA, the Secretary of Transportation is given broad authority to "prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103. Section 20140 of the FRSA authorizes the Secretary to "prescribe regulations and issue orders ... related to alcohol and controlled substances used in railroad operations." These regulations permit random and periodic testing of all railroad employees in safety-sensitive positions for use of controlled substances and alcohol. § 20140(b)(I) (A), (2). The extent that the FRSA preempts state law is governed by § 20 I 06 which provides as follows: § 20 I 06. Preemption (a) National uniformity of regulation. (I) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. (2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety mailers), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order- (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order ofthe United States Government; and (C) does not unreasonably burden interstate commerce. '7 (b) Clarification regarding State law causes of action. (I) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party- (A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject malter as provided in subsection (a) of this section; (B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or (C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2). (2) This subsection shall apply to all pending State law causes of action arising from events or activities occurring on or after January 18,2002. The doctrine of preemption derives from the Supremacy Clause of the U.S. Constitution. State law is preempted when Congress expressly declares its intention to preempt state law; when Congress, by implication through the structure and purpose of the law, demonstrates its intent to preempt state law; and where state law directly connicts with federal law such that a party cannot comply with both laws. See English v. Gen. Elec. Co .. 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Federal regulations can preempt state law if the agency issuing the regulations is acting within the scope of its authority. Fid. Fed. Savings & Loan Ass'n v. de WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Ballslrlerl v. Express Drug Screening, LLC, Nol Reported In F.Supp.2d (2008) 2008 WL 906236 la Cllesta. 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Further, legal duties imposed on railroads by the common law may be preempted if "federal regulations substantially subsume the subject matter of the state law." Eastenl'ood, 507 U.S. at 664. However, "in the interest of avoiding unintended encroachment on the authority of the states," courts are reluctant to find preemption in a federal statute relating to subjects traditionally governed by state law. Id This is particularly true where, as here, express savings clauses surround a preemption clause. See id In determining whether the state law is preempted, "the ultimate touchstone is congressional purpose." Fijih Third Bank ex rei. Trust Officer v. CSX Corp .• 415 F.3d 741, 746 (7th Cir.2005). If the statute includes an express preemption clause, the court's focus in statutory construction is on the plain language of the clause. Eastemood, 507 U.S. at 664. Federal courts have wrestled with the scope of FRS A's preemption clause over state common law claims. See e.g .. Lllndeen v. Canadian Pac. Ry. Co. (Lundeen I). 447 F.3d 606,613 (8th Cir.2006); Chapman v. LabOne. 390 F.3d 620, 623 (8th Cir.2004); Peters v. Union Pacific R.R. Co .. 80 F.3d 257 (8th Cir.1996); Frank v. Delta Airlines Inc .• 314 F.3d 195 (5th Cir.2002) (considering similar preemption issues related to FAA regulations); Fijie v. Cooksey. 403 F.Supp.2d 1131, 1135 (M.D.Fla.2005). In response to courts' varying interpretation of the preemption clause, Congress recently added subsection (b) to the statute in August 2007 through the Implementing Recommendations of the 911 1 Commission Act of 2007, Pub.L. No. 110-53, Title XV, Subtitle B, § 1528, 121 Stat. 453. 6 The Conference Report for the Act notes that subsection (b) was added to "clarifY the intent and interpretations of the existing preemption statute and to rectifY the Federal court decisions related to the Minot, North Dakota accident that are in conflict with precedent." H.R.Rep. No. 110-259, at 351 (2007). "It clarifies that 49 U.S.C. 20106 does not preempt State law causes of action where a party has failed to comply with the Federal standard of care established by a regulation or order," and "nothing in 49 U.S.C. 20106 creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action." Id '8 The court decisions referred to by Congress relate to a freight train derailment on January 18, 2002, near the city limits to Minot, North Dakota. The derailment resulted in the release of over 220,000 gallons of anhydrous ammonia into the surrounding environment. See. e.g .• Lllndeen 1 .• 447 F.3d 606 (finding FRSA preempts state law negligence claims); Lllndeen v. Canadian Pac. Ry. Co. (Lllndeen /I). 2007 U.S. Dist. LEXIS 7839, at • 2-3, 2007 WL 465703 (D.Minn. Feb. 2,2007) (same); Mehl v. Canadian Pac. Ry .. 417 F.Supp.2d 1104 (D.N.D.2006) (same). In Lllndeen I. the Eighth Circuit concluded that the FRSA completely preempted plaintiffs' negligence claims with respect to the derailment and toxic release, and remanded the case to the district court. At issue were federal regulations that established a specific inspection protocol including how, 49 C.F.R. § 213.233(b), when, §§ 213.233(c) & .237(a)-(c), and by whom, §§ 212.203, 213.7 & .233(a), track inspections must be conducted; the regulations establish a national railroad safety program intended to promote safety in all areas of railroad operations, § 212.101(a); federal and state inspectors determine the extent to which the railroads, shippers, and manufacturers have fulfilled their obligations with respect to, among other things, inspection, § 212.10 I (b) (I); and railroads face civil penalties for violations, § 213 App. B. 447 F.3d at 614. The court found that plaintiffs' negligent inspection claims were preempted because "it is both clear the regulations at issue are intended to prevent negligent track inspection nationally and contain no savings clause (so there is thus no indication the FRA meant to leave open a state law cause of action)." Id The Eighth Circuit contrasted its decision in Lllndeen 1 with its previous holding in Chapman v. LabOne. 390 F.3d 620. In Chapman. the court declined to find preemption of common law claims alleging negligent drug testing because "the applicable statute and regulations concerning drug testing do not establish an intent to preempt the substantive common law at issue." Lllndeen I. 447 F.3d at 613. Key to its holding in Chapman was an anti-waiver provision [49 C.F.R. § 219.II(d) 1 providing for a "private right of action for a person aggrieved by negligence in the analysis of a drug test, and the absence of an alternative cause of action militates against a finding of complete preemption," Id. (qlloting 390 F.3d at 629). The lack of such an anti- WESTLAW © 2016 Thomson Reuters. No claim 10 original U.S. Government Works. 6 Ballstrlerl v. Express Drug Scrsenlng, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 waiver provision in the regulations governing railroad track inspections demonstrated no such solicitude for state law.ld. at 614. Here, the plain language of § 20106(b) and the legislative history indicate Congress' intent to preserve certain state common law causes of action. Further, the standard of care established in the regulations governing drug and alcohol testing appears to be ordinary negligence under state law. For example, 49 C.F.R. § 219.1 I(d) prevents an employer from requiring an employee to "waive liability with respect to negligence on the part of any person participating in the collection, handling, or analysis of the specimen or to indemniry any person for the negligence of others." 7 Further, 49 C.F.R. § 40.27, provides that "[An employer] must not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO and SAP services.)". This conclusion is further supported by Congress' intent to "rectify" the decisions in Lundeen, Mehl, and similar cases that found federal preemption of state law negligence claims under the FSRA, and its express instruction that no alternative federal cause of action exists. See H.R.Rep. No. I 10-259, at 35 I (2007). '9 UPR argues that, should this court follow Chapman and hold that claims related to drug testing are not preempted by federal law, employers are nonetheless excluded from liability under 49 C.F.R. § 219.II(d). it is true that § 219.1 I(d)'s prohibition on liability waivers focuses on "any person participating in the collection, handling, or analysis of the inspection"; and the Chapman court, in dicta, recognized a distinction between employers and others involved in the collection process. See 390 F.3d at 628 (noting that the anti- waiver provision "is directed to negligence on the part of others involved in the collection, handling, and analysis of specimens"); Smeltzer v. Medtox Labs., 2006 WL 2095468, at "7 n. I I (D.Minn. July 27, 2006) (noting in a footnote that Chapman "excepted from consideration whether 'an employer is vicariously liable for a laboratory's improper testing procedures' "), However, given (1) Congress' intent that the claims at issue are not preempted by federal law, (2) the Supreme Court's guidance that courts should be reluctant to find federal preemption of subjects traditionally governed by state law (which includes negligence claims), and (3) regulations imposing liability on the employer, see 49 C.F.R. §§ 40. I 1,8 40.15,9 40.27, this court is reluctant to find that employers cannot, based on federal preemption, be held liable for negligence related to drug and alcohol testing. Because Balistrieri asserts causes of action uunder State law seeking damages for personal injury 10 ... alleging that a party-(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation," § 20106(b), his claims are not subject to federal preemption by the FSRA. b. Preemption of Claims Due to Failure to Exhaust Administrative Remedies UPR next alleges that Balistrieri's claims should be dismissed because he "failed to exhaust available administrative remedies-not once but twice-in bargaining away any labor claim under the Railway Labor Act (RLA) and then refusing to appeal the FRA's LERB's June 17,2004 Decision relating to his certification claim." (Def. UPR's Br. in SUpp. Mot. Summ. J. 20.) However, neither assertion supports summary judgment in UPR's favor. First, UPR points out that under the FSRA, 49 C.F.R. Part 240, Subpart E sets forth a three-level dispute resolution system uin which a person denied engineer certification may obtain a fresh determination by the FRA of whether a railroad's decision was correct." Carpenter v. J&;fineta, 432 F.3d 1029, 103 I (9th Cir.2005). UPR argues that Balistrieri failed to exhaust his FSRA administrative claims because he did not appeal the June 17,2004, decision ofthe LERB, which affirmed UPR's finding of a violation pursuant to 49 C.F.R. Part 240.119. It In general, "[w]here reliefis available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts; and until that recourse is exhausted, suit is premature and must be dismissed," Peters v. Union Pac. R.R., 80 F.3d 257, 262 (8th Cir.1996). Part 240 of title 49 of the Code of Federal Regulations governs the qualifications and certification of locomotive engineers. Hence, it governs the eligibility of an engineer to hold a certificate based on compliance with alcohol and drug testing procedures, see § 240.119, and dispute resolution procedures, see § 240.401-.411. Section 240.403 provides that an employee may obtain review of a urailroad's decision to deny certification, deny recertification. or revoke certification," by filing a petition with the LERB. Following the decision of the LERB, a party may appeal by requesting an administrative hearing under § 240.409. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works 7 Balistrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WI. 906236 Failure to request a hearing within the applicable time makes the determination of the LERB the final agency decision. § 240.407. '10 For support, UPR points to Peters v. Union Pacific Railroad Co .. 80 F.3d 257. In Peters. the Eighth Circuit dismissed Peters' state law conversion claim because it was preempted by the FSRA and he failed to exhaust administrative remedies under Part 240. In that case, UPR termimated Peters' employment for violating federal regulations and suspended his engineer certification for one month. Peters' union appealed the decision under the collective bargaining agreement, and six months later, pursuant to a leniency reinstatement agreement, Peters was reissued his certificate and returned to work. 80 F.3d at 261. He then sued UPR for conversion based on its refusal to return his certification after the one-month suspension period. The court found that the FSRA governs engineer certification, and Peters' claim was predicated on a certification dispute; thus, the claim was preempted by the FSRA. Id. at 262. Thus, the court upheld the district court's dismissal of the action because Peters failed to exhausl the dispute resolution procedures under Part 240 which are set up to handle certification disputes.ld. at 262-63. Here, Balistrieri sought relief from the LERB prior to executing the leniency reinstatement agreement with UPR. On June, 17, 2004, the LERB issued a decision affirming UPR's finding that Balistrieri violated Part 240 by failing to provide a urine sample and affirming UPR's decision to revoke his certification. Although Balistrieri had executed the leniency reinstatement agreement and his employment and certification had been restored by the time the LERB issued its decision, it is undisputed Balistrieri did not pursue the appeal procedures available under Part 240. The circumstances of Peters arc, however, sufficiently distinguishable from this case such that UPR cannol succeed on its preemption/exhaustion argument. Most important, while both cases involve questions of engineer certification, Balistrieri's stale law claims, unlike Peters' conversion of certificate claim, are not preempted by Ihe FSRA. Anti- waiver and employer liability clauses associated with drug and alcoholtesling, including 49 C.F.R. §§ 219 .11(d), 40.27, 40.15(c) and 40.11, recognize an employee's private right of action for claims arising from testing procedures. Further. the recently added 49 U.S.C. § 20106(b) specifically saves from preemption state law causes of actions alleging personal injury for a party's failure "to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation." To preempt Balistrieri's claims based on his failure to exhaust 49 C.F.R. Part 240 administrative remedies would require rcading an exception for railroad employees into § 20 106(b) and ignoring the anti- waiver and employer liability clauses provided in the federal regulations governing drug and alcohol testing. UPR's second asserted grounds for barring Balistrieri's claims based on failure to exhaust administrative remedies is that employer-employee drug testing programs are "minor disputes" under Ihe RLA and subject to mandatory arbitration before Ihe National Railroad Adjustment Board (NRAB). 45 U.S.C. § 153. Balistrieri did not seek review of his labor claims by the NRAB and according to UPR, his state law claims must be dismissed. Additionally, Balistrieri admitted he agreed to withdraw his RLA claims pursuant to the leniency reinstatement agreement. (PI.'s Mot. for Leave to File First Am. Compl. 11 7.) 'II "Congress enacted the RLA, 45 U.S.C. § 151 et seq., to prevent disruptions of interstate commerce caused by labor disputes. 45 U.S .C. § 151 a. The Act facililates that legislative purpose by imposing mandatory procedures for resolving disputes between railroads and their employees involving collective bargaining ('major disputes') or grievances ('minor disputes')." National R.R. Passenger Corp. v. Int'l Ass'n of Machinists & Aerospace Workers, 915 F.2d 43, 49 (lSi Cir. I 990). Minor disputes exist "when the resolution of the plaintiffs claim requires interpretation of the CBA [collective bargaining agreemenl)." Brown v. !If. Cent. R.R. Co. 254 F.3d 654, 658 (7th Cir.2001); see also Cokr v. Trans World Airlines. Inc .. 165 F.3d 579, 583 (7th Cir.1999) (stating that "[t)he distinguishing feature of a minor dispute is that the dispute can be conclusively resolved by interpreting the existing CBA"). If a claim is properly characterized as a minor dispute, it is subject to arbitration under the RLA. Id. However, if a plaintiffs claim "is grounded upon rights which stem from some source other than the CBA (such as state law), the claim will be preempted if it cannot be adjudicaled without interpreting the CBA, or if it can be "conclusively resolved" by inlerpreting Ihe CBA. Id. (citing Haw. Airlines v. Norris. 512 U.S. 246, 261-62, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994»; see also Norris. 512 U.S. at 262 ("[E)ven if dispute resolution pursuant to a collective bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without WESTLAW © 2016 Thomson Reuters. No claim to original U.S Government Works. 8 Ballstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2006 WL 906236 interpreting the agreement itself, the claim is independent of the agreement .... ") For support, UPR points to Milam v. Herrlin. 819 F.Supp. 295, in which the district court found the plaintiil's state tort law claims preempted by the RLA. In that case, the plaintiff was subject to random urinalysis pursuant to 49 C.F.R. § 219 and the CBA between plaintiil's union and the defendant. The rates of pay, rules, and working conditions of [plaintiil's] employment are governed by the collective bargaining agreement ("the Agreement") entered into between [the defendant] and [plaintiil's union], which was formed according to and is governed by the provisions of the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (the "RLA"). [The defendant's] Substance Abuse Policy and [the applicable rule] of the Rules of the Operating Department ("the Department"), which restrict an employee's use of alcohol and controlled substances, are deemed by past practice to be part of [the defendant's] collective bargaining agreements. ld at 299. The plaintiff was terminated following an allegedly false-positive urine test; he brought suit contending the false- positive result was due to the defendant's negligence. The court found that the plaintiff could not prove his claims of negligence and resulting emotional distress "without referring to the terms and conditions of his employment as they are set forth in [49 C.F.R.] Part 219 and the [collective bargaining] Agreement." Hence, the claims "could be resolved through interpretation ofthe existing Agreement by arbitration before the adjustment board" and were preempted by RLA. ld at 305. '12 To succeed on its claim that the RLA preempts Balistrieri's state tort claims, UPR must show that Balistrieri was covered by a collective bargaining agreement, that the RLA governed dispute resolution under the agreement; and that Balistrieri could not prove his claim without reference to the terms of the agreement. Unlike the litigants in Milam, neither party in this case presents specifics of an applicable CBA that governs (or does not govern) the claims at issue. To adopt UPR's position would require this court to assume the content of the applicable CBA. See 49 C.F.R. 219.104 ("Nothing in this part may be deemed to abridge any additional procedural rights or remedies not inconsistent with this part that are available to the employee under a collective bargaining agreement the Railway Labor Act, or (with respect to employment at will) at common law with respect to the removal or other adverse action taken as a consequence of a positive test result in a test authorized or required by this part."). Nowhere in UPR's Proposed Findings of Fact, Brief in Support of Motion for Summary Judgment, or Reply Brief in Support of Motion for Summary Judgment does it point to specific provisions of an applicable collective bargaining agreement or provide citations to the record such that the court may interpret the CBA, as required for preemption under Hawaii Airlines v. Norris, 512 U.S. at 261_62. 12 See also Elgin. Joliet & E. Ry. Co. v. Bllrley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945) ( "[A minor dispute under the RLA] relates either to the meaning or proper application of a particular provision [of a collective bargaining agreement] with reference to a specific situation or an omitted case."). Because RLA preemption requires interpretation of the collective bargaining agreement, and UPR does not fulfil its burden to present evidence for this court to determine that the claims at issue could be resolved by inlerpreting the applicable CBA, Balistrieri's tort claims may not be dismissed based on RLA preemption. B. Express Drug Screening, LLC's Motion for Summary Judgment Of the multiple claims included in Balistrieri's amended complaint, only Count 111 is specifically directed at EDS. Count 111 of the amended complaint charges EDS with negligence in violating its duty of care under the circumstances and causing Balistrieri injury. Balistrieri argues that breach of King's duty of care caused his failure to produce a urine specimen, which foreseeably resulted in his loss of employment. The court is mindful that in Wisconsin, "summary judgment is rarely appropriate in negligence cases due to the multitude of factual issues which need to be resolved by the jury." Jakubiec v. Cities Service Co .. 844 F.2d 470, 473 (7th Cir.1988); Gracyalny v. Westinghollse Elec. Corp., 723 F.2d 1311, 1316 (7th Cir.1983) ("Thus, summary judgment is rarely appropriate in negligence cases." (citing Ceplina v. S. Milwallkee Sch. Bd., 73 Wis.2d 338, 343, 243 N.W.2d 183, WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 Ballstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 185 (1975)). To grant summary judgment on a Wisconsin negligence claim, *13 the court "must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that [the defendants] failed to exercise ordinary care." The concept of negligence is peculiarly elusive, and requires the trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances, "even where historical facts are concededly undisputed." Ordinarily, this is not a decision for the court. Alvarado v. Sersch, 2003 WI 55, ~ 29, 262 Wis.2d 74, ~ 29, 662 N.W.2d 350, ~ 29 (internal citations omitted). With this hurdle in mind, the elements of negligence and defendant's arguments in favor of summary judgment are addressed below. In Wisconsin, "[t]he elements ofa negligence claim are: (I) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiffs injury, and (4) actual loss or damage resulting from the injury." Gritzner v. Michael R .. 2000 WI68, ~ 19,235 Wis.2d 781, ~ 19,611 N.W.2d 906, ~ 19 (citations omitted). "The first element, a duty of care, is established under Wisconsin law whenever it was foreseeable to the defendant that his or her act or omission to act might cause hann to some other person." Id at, 20, 235 Wis.2d 781, ~ 20, 611 N.W.2d 906, ~ 20 (citations omitted). "At the very least, every person is subject to a duty to exercise ordinary care in all of his or her activities." Id. 235 Wis.2d 781, ~ 20, 611 N.W.2d 906, ~ 20 (citation omitted); see also Stephenson v. Universal Alelrics. Inc., 2002 WI 30, ~ 16,251 Wis.2d 171, ~ 16,641 N.W.2d 158, ~ 16 ("Thus, when determining the existence ofa duty, the primary question we ask is not whether the defendant has a duty to take (or refrain from) certain actions, but whether the defendant's actions (or lack thereof) were consistent with the general duty to exercise a reasonable degree of care under the circumstances.") The parties dispute whether EDS owed a duty to Balistrieri. However, as noted above, in Wisconsin "everyone owes a duty of ordinary care to all persons" under the circumstances. See Alvarado. 2003 WI 55, , 27, 262 Wis.2d 74, ~ 27, 662 N.W.2d 350, ~ 27. 13 With that in mind, consideration must be give to whether EDS breached a duty of ordinary care to Balistrieri. Balistrieri points to alleged violations of the applicable federal regulations governing drug and alcohol testing by EDS as evidence of negligence. Specifically, he asserts that EDS committed "one or more of the following negligent acts or omissions in violation of the Department of Transportation Urine Specimen Collection Guidelines, the FRA [Federal Railroad Administration] Compliance Manual, 49 C.F.R. § 40 et. seq., and other violations": I. Failed to monitor plaintiff or designate someone to monitor him during the waiting period; *14 II. Failed to begin the collection procedure until approximately 10:30 plaintiff was first given a specimen container. Instead, Ms. King started the waiting period at 8:10 a.m. and ending it at 11:10 a.m. when the waiting period should have expired at I :30 p.m.; III. Continually pressured the plaintiff to urinate by 11:10 a.m. orhe would fail; IV. Failed to give him any advice concerning drinking fluids; V. Being physically present in the collection room with plaintiff each time plaintiff attempted to provide a urine specimen; VI. Allowing a collector of opposite gender to be present at the collection site; VII. Allowing plaintiffs supervisor to enter the restroom and have a discussion with the plaintiff while the plaintiffwas attempting to provide a urine specimen .... (Am.Compl.~ 49.) 14 Balistrieri states that as a direct result of these acts and omissions, he suffered loss of income, emotional distress, and other injuries. (Am.CompI.9-10). EDS counters these assertions as lacking a causal connection to his injury. It submits that Balistrieri's testimony contradicts his claims, as he cannot point to a specific action by EDS that was the cause of his failure to provide a urine sample on July 26, 2003. Given the Wisconsin Supreme Court's deference for jury determinations as to breach and cause in negligence cases, see Alvarado, 2003 WI 55, ~ 29, 262 Wis.2d 74, , 29, 662 N.W.2d 350, ~ 29, the court will dispose only of those assertions in which the record demonstrates clearly that there is no genuine issue of material fact and that no reasonablejury could find for Balistrieri. WESTLAW © 2016 Thomson Reuters. No claim to original U S. Government Works. 10 Ballstrlerl Y. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2006 WL 906236 Balistrieri first contends that EDS was negligent for failing to monitor him during the sample collection period. Whether EDS failed to monitor Balistrieri is immaterial to his negligence claim. Such a requirement is designed to prevent the employee from subverting the testing procedures and submitting an altered sample. In this case, there is no issue concerning an altered urine sample as no sample was submitted. Next, Balistrieri indicates that King failed to announce the starting of the three-hour time limit for him to provide a urine sample and that the collection period was to begin only after his first attempt to provide a sample at 10:30 a.m. This assertion finds no support in the record. Balistrieri admitted that he was asked for a urine sample at or immediately near 8:10 a.m., (Am.Compl.~ 18), and he acknowledged that King notified him at 8:10 a.m. that he had three hours to produce a sample, (Yakala Aff. Ex. D. at 185).15 According to 49 C.F.R. § 40.61, which requires that when the employee arrives for testing, the tester must: "(b) Ensure that, when the employee enters the collection site, you begin the testing process without undue delay. For example, you must not wait because the employee says he or she is not ready or is unable to urinate .... " Third, Balistrieri's assertion that King "continually pressured the plaintiff to urinate" also lacks support in the record. Balistrieri admitted that other than King telling him how much time he had left, he was not pressured by King. (Balistrieri Dep. 64, 76.) Because federal regulations required Balistrieri to provide a sample within three hours, such a notification would be expected and cannot be considered unreasonable "pressure." In addition, Balistrieri mischaracterizes the record by proffering as a fact that "King told plaintiff she was in a hurry [to complete his collection period] because she had to attend a family function." (PI.'s Additional PPFOF ~ 23) However, the transcript of the September 12, 2003, Formal Investigation, to which Balistrieri points to in support ofthis proposed fact, indicates that around 10:00 a.m., after King asked Balistrieri if he was ready to provide a sample, Balistrieri asked if she had anything to do that day. King's reply was "Yes. She had a family function to attend." (Bishop. Aff. Ex. 4 at 209-10.) 'IS Balistrieri's fourth assertion that EDS is negligent for not advising him to drink fluids, also lacks support in the record. The record demonstrates that Balistrieri was familiar with the testing procedure because of previous testing, understood that drinking water generally facilitates urination, and he attempted to drink water for that purpose. (See Balistrieri Dep. 21-22.) Regardless, there are genuine issues of material fact as to Balistrieri's fifth, sixth, and seventh assertions that preclude granting summary judgment on those contentions. With regard to Balistrieri's fifth negligence contention, there are disputes as to when and if King was present in the restroom when Balistrieri was attempting to provide a sample. EDS points to Balistrieri's deposition testimony that he could not state for certain that King remained in the restroom area after he shut the toilet stall door. (Balistrieri Dep. 49, 55, 56-59.) On this point, Balistrieri states that for his first attempt at or near 10:30 a.m., King was present in the restroom, near the sink, when he entered the stall and when and exited the stall. While it is true that Balistrieri cannot claim that King did not exit the restroom area and return later, a reasonable inference, which the court must take in Balistrieri's favor, is that she remained in one place the entire time. There are similar disputed facts regarding King's whereabouts during Balistrieri's other attempts to provide a urine sample, as King testified that she was not in the restroom area during any attempts to provide a urine sample. (King Dep. 40, 49, 59.) Resolution of these questions of fact is not permissible on summary judgment. Balistrieri's sixth claim relating to King's gender is intertwined with his fifth claim regarding her presence in the restroom.1t is true that King was the collector during previous tests when Balistrieri provided a sample in the allotted time. As noted previously, it is also true that Balistrieri could not affirmatively claim that King's gender was the cause of his failure to provide a sample on July 26, 2003. However, because the surrounding circumstances are of a personal nature, the court is not willing to conclude that EDS is entitled to judgment as a matter of law on this point. Resolution ofthis issue requires a "trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances." Alvarado, 662 N.W.2d at 357. Additionally, Balistrieri's claim that King was negligent for permitting Nahulak to enter the restroom or speak to him also involves a factual dispute. Nahulak testified that he did not believe he ever entered the restroom and that his conversation with King, which Balistrieri states he overheard, occurred outside the restroom area. (Yakala Aff. Ex. B at 23). King also testified that Nahulak never entered the restroom. (King Dep. 60.) Hence, this claim remains unresolved. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 Ballstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 Nevertheless, EDS argues that this court should bar Balistrieri's claims based on public policy concerns. Public policy considerations that may preclude liability include the following: '16 (I) the injury is too remote ITom the negligence; (2) the injury is too wholly out of proportion 10 Ihe tortfeasor's culpability; (3) in relrospecl il appears 100 highly eXlraordinary that Ihe negligence should have resulted in Ihe hartn; (4) allowing recovery would place too unreasonable a burden on the lortfeasor; (5) allowing recovery would be too likely to open Ihe way for fraudulent claims; [or] (6) allowing recovery would enler a field Ihat has no sensible or just slopping point. Grilzner. 2000 WI68,' 21 235 Wis.2d 781, ~ 21, 611 N.W.2d 906, , 21. However, in most cases, Uthe better practice is to submil Ihe case 10 the jury before delertnining whether Ihe public policy considerations preclude liabililY. Only in Ihose cases where the facts are simple 10 ascertain and the public policy questions have been fully presented maya court review public policy and preclude liability before triaL" Alvarado. 2003 WI 55, ~ 17-18, 262 Wis.2d 74, ~ 17-18, 662 N. W .2d 350, ~ 17-18. In support of ils public policy argumenl, EDS asserts Ihal (I) Balistrieri's claims primarily concern UPR's conduci and Ihat il would be unreasonable 10 hold EDS liable for discriminatory aclions by UPR relaled 10 Balistrieri's condition; (2) Ihe injury is out of proportion 10 EDS's cUlpability; (3) Ihe alleged negligent conduci is 100 remote to cause his injuries; and (4) allowing recovery would place an unreasonable burden on EDS. In response, Balislrieri maintains thai public policy favors holding EDS liable as the risk of hartn in nol following Ihe federal regulalions is significant. As menlioned earlier, Ihere are factual disputes Ihal are material to Balistrieri's negligence claims. Wisconsin law favors U a full factual resolulion before applicalion of a public policy analysis," Alvarado. 2003 WI 55, ~ 20, 262 Wis.2d 74, ,20,662 N.W.2d 350, , 20, and, therefore, EDS's requesl Ihat this court limil ils liability at this stage of the proceedings musl be rejecled. To sum up, EDS is entitled to summary judgment with respect to Ihe claims Ihal EDS was negligenl in (I) failing to monitor Balistrieri during the lesling process; (2) failing to begin the three-hour lesling limit at 10:30 a.m. or failing to infortn Balistrieri of the beginning of Ihe Ihree-hour period; (3) continually pressuring Balistrieri to produce a urine sample; and (4) failing 10 give Balistrieri advice on drinking fluids as raised in Count 111. On the olher hand, a different result is as to Balistrieri's remaining assertions. Balistrieri's claims that EDS was negligent with regard 10 (I) King's presence in the restroom during his attempls 10 provide a sample; (2) EDS was negligent in pertnitting a person of the opposite gender to conduct Ihe testing; and (3) EDS was negligenl in failing to prevent Balistrieri's supervisor from talking to Balistrieri during lesting. The parties remain at odds respecting these maners, and therefore ajury will have 10 decide what occurred as well as the reasonableness of EDS's conduct under the circumstances. '17 Further, because many of the grounds asserted by Balimieri's in support of his negligence claim againsl EDS are included in his claim of negligence against UPR (Count 11), the court will grant UPR's motion for summary judgmenl in part and deny it in part for Ihe reason discussed above. Therefore, IT IS ORDERED Ihal UPR's Motion for Summary Judgment as 10 Count I of Ihe Amended Complaint is gran led and Balistrieri's Americans with Disabilities Act claim is dismissed. IT IS FURTHER ORDERED Ihal UPR's Motion for Summary Judgmenl as to Counlll ofthe Amended Complaint is granted in part and denied in part. IT IS FURTHER ORDERED thai UPR's Motion for Summary Judgment as to Counts IV, V, and VI of Ihe Amended Complaint is denied. IT IS FURTHER ORDERED that EDS's Motion for Summary Judgment is gran led in part and denied in part. All Citations Not Reported in F.Supp.2d, 2008 WL 906236 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 Balls!rlerl v. Express Drug Screening. LLC. No! Reported In F.Supp.2d (2008) 2008 WL 906236 Footnotes 1 Count VII of the Amended Complaint sought declaratory judgment that the February 19, 2004, Leniency Reinstatement Agreement between Balistrieri and UPR did not preclude Balistrieri from bringing the current causes of action against UPR. This court addressed that matter in its order dated April 6, 2006. 2 3 4 5 49 U.S.C. § 20140(b)(1)(A) requires the Secretary of Transportation to establish a drug and alcohol testing program that includes random testing of "all railroad employees responsible for safety-sensitive functions." It is undisputed that Balistrieri fell under this regulations in his employment with UPR. Pursuant to 49 C.F.R. 240.119(c)(4)(iv)(A), failure to provide a urine sample is treated the same as a refusal for the purposes of suspending or revoking engineer certification. The ADA provides that "the term 'qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acls on the basis of such use." § 12114(a). Further, even if substance abuse was a ground for disability, Balistrieri does not argue that his inability to provide a urine sample was related to such a disability. Cf. Buckley v. Consolidated Edison Co. of N. Y .• 155 F.3d 150 (2nd Cir.1998). 42 U.S.C. § 12114(e) provides: (e) Transportation employees. Nothing in this title shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transportation of authority to- (1) test employees of such entities in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and (2) remove such persons who test positive for illegal use of drugs and on-duty impairment by alcohol pursuant to paragraph (1) from safety-sensitive duties in implementing subsection (c). 6 This provision was added by Congress after the parties submitted their briefs on this motion. 7 See also Chapman, 390 F.3d 627 ("We agree with the Ninth Circuit that 'negligence is a state common law tort, and it would make no sense for the regulation to prohibit requiring the employee to waive negligence claims if those claims were preempted and could not be made." (quoting Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1133, as amended, 350 F.3d 915 (9th Cir.2003)); see also Drake v. Lab. Corp. of Am. Holdings, 290 F.Supp.2d 352,373 (E.D.N.Y.2003). 8 49 C.F.R. § 40.11 states "(a) As an employer, you are responsible for meeting all applicable requirements and procedures of this part. (b) You [the employer] are responsible for all actions of your officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations." 9 49 C.F.R. § 40 15(c) states "You [the employer] remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent." Of note, while this subsection further notes that if the employer violates "this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions," such a provision does not therefore mean an employer is excused from negligence claims. 10 The court does not doubt that Balistrieri presents a claim for personal injury. According to Black's Law Dictionary, common usage of the term "personal injury" implies a broad range of injuries, "including any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as libel or slander ... and mental suffering." Black's Law Dictionary 786 (6th ed.1991). In all relevant claims, Balistrieri asserts that he has suffered mental suffering and loss of income. (Compl.8-13.) 11 49 C.F.R. § 240.119(c)(iv)(4) provides that "In the case of a refusal or failure to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative, the refusal or failure shall be treated for purposes of ineligibility under this paragraph in the same manner as a violation of- (A) § 219.102, in the case of a refusal or failure to provide a urine specimen for testing." 12 UPR instead notes the following: "Nowhere within his opposition brief does Balistrieri contend that his challenge to the drug testing policies was not governed by the RLA. Balistrieri's violation of 49 C.F.R. Part 240 (the Impetus for the LevelS discipline) can be "conclusively resolved" by interpreting the CBA because Balistrieri has not presented an argument illustrating how anyone of his common law claims hinge on anything other than the established drug testing policies." (Def. UPR's Rep. Br. 10). It further notes that that Balistrieri admits he was subjectlo random testing in accordance with his "terms of employment." However, as noted above, UPR provides no reference or record citation to the applicable collective bargaining agreement provisions, which is necessary for RLA preemption. The decisions cited by UPR in its Brief in Support of Motion for Summary Judgment reference applicable provisions of a governing collective bargaining WESTLAW © 2016 Thomson Reuters. No claim to anginal U.S. Government Works. 13 Ballstrlerl v. Express Drug Screening, LLC, Not Reported In F.Supp.2d (2008) 2008 WL 906236 agreement in concluding that a dispute is a "minor dispute" subject to RLA arbitration. See, e.g., Allied Pilots Ass'n v. Am. Airlines, Inc., 898 F.2d 462, 464 (5th Cir.1990); Local Union No.2000, Int'l Bhd. of Teamsters, AFL-C/O v. Nw. Airlines, 21 F.Supp.2d 751,754 (D.Mich 1998); Taylor v. Am. Airlines, 943 F.Supp. 1164, 1168 (D.Mo.1996). 13 Balistrien directs the court to an Illinois court decision that held a drug testing laboratory owed a duty to the plaintiff employee based on the foreseeability and magnitude of the possible injury to the plaintiff due to negligently reported positive drug test results.' Stinson v. Physicians Immediate Care, Ltd., 269 III.App.3d 659, 207 III.Dec. 96, 646 N.E.2d 930, 933 (III.Ct.App.1995). However, as EDS correctly points out, the Illinois duty analysis is inapposite here. Under Illinois law, existence of a duty "depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Stinson, 207 III. Dec. 96, 646 N.E.2d at 933; see also Gouge v. Cent. III. Pub. Servo Co., 144111.2d 535,542, 163 III. Dec. 842, 582 N.E.2d 108 (111.1991). Under Wisconsin law, "conduct is negligent if it involves a forseeable nsk of harm to anyone. In Wisconsin, the doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability." Bowen V. Lumbennens Mut. Cas. Co., 183 Wis.2d 627, 644, 517 N.W.2d 432, 439 (1994). Likewise, the court also rejects EDS's assertion that its duty is limited to UPR or the public at large, see 49 C.F.R. § 219.1 ("The purpose of this part is to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.'), as Balistrien is asserting a claim of ordinary negligence under Wisconsin law. 14 In addition, Balistneri charges that EDS failed to comply with 49 C.F.R. § 40.63 by not requesting identification, not instructing him to empty his pockets, and not instructing him to wash his hands. (PI.'s Mem. in Opp. to Mot. for Summ. J. 9.) The court disposes of any arguments or potential arguments that EDS's alleged failure comply with those requirements establishes liability for negligence. Such precautions are in place to prevent employees from subverting the testing procedures or submitting an altered sample and are immaterial to Balistnen's claim. Balistnen also asserts that EDS was negligent by not "reassuring and encouraging" him during testing. (PI.'s Mem. in Opp. 9.) The court is unclear how could EDS should have fulfilled this alleged duty and as such refuses to entertain the Idea that EDS owed such comfort to an employee. 15 The transcnptofthe September 12, 2003, Formal Investigation on Balistrien's suspension due to failure to produce a unne sample reveals the following exchange between J. T. Nezworski, UPR's Manager of Terminal Operations, and Balistneri: "Question [by Nezworski to Balistneri]: But at 8:10 a.m. you were notified, I take it by, the tester Miss King that you had three hours from 8:10 to produce a sample? Answer [by Balistrien): Yes.' End of Document ~ 2016 Thomson Reuters, No dalm to original U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 r KcyCite Yellow FlIlS - Negalive Treatment Dhllnguhbcd by Posternack v. laborntory Corp. of America, S.D.N.Y.. September 6, 2012 2007 WL 776818 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Richard W. DRAKE, Plaintiff, v. lABORATORY CORPORATION OF AMERICA HOLDINGS, Kevin Wilson, Northwest Toxicology, Inc., David J. Kuntz, Elsohly Laboratories, Inc., Dr. William H. Whaley, and West Paces Ferry Medical Clinic, Defendants. No. 02-CV-1924 (FB)(RML). I March 13, 2007. Altorneys and Low Firms Sam O. Maduegbuena, Esq., Maduegbuena Cooper & Ekperigin, LLP, New York, NY, for Plaintiff. D. Faye Caldwell, Esq., Caldwell & Clinton P.L.L.C., Houston, TX, for Defendants Laboratory Corporation of America Holdings and Kevin Wilson. Jeffrey Hurd, Esq., Phelan, Burke & Scolamiero, LLP, Albany, NY, for Defcndants Nonhwest Toxicology, Inc. and David J. Kuntz. Jehje Dejong, Esq., Devin Spellman Barren, LLP, Smithtown, NY, for Defendant EISohly Laboratories, Inc. Ira Rosenstein, Esq., Orrick, Herrington & Sutcliffe LLP, New York, NY, for Defendants William H. Whaley and West Paces Ferry Medical Clinic. MEMORANDUM AND ORDER BLOCK, Senior District Judge. *\ Familiarity with the procedural history of this action and the related litigation involving Deha Air Lines, Inc. ("Deha") is presumed. See Drake v. Laboratory Corp., et aJ .. 290 F.Supp.2d 352 (E.D.N.Y.2003) (holding state-law claims not preempted and cenifying issue for interlocutory appeal); id. at 353-56 (reviewing history of Deha litigation); Drake, No. 04-0137 (2d Cir. Mar. 4, 2004) (denying defendants' petitions for leave to proceed with interlocutory appeal, and questioning Courtls jurisdiction over remaining state- law claims); Drake, 323 F.Supp.2d 449 (E.D.N.Y.2004) (retaining jurisdiction over state-law claims and re-cenilYing preemption issue for interlocutory appeal); Drake, 458 F.3d 48 (2d Cir.2006) (affirming). In sum: Plaintiff Richard W. Drake ("Drake") filed a complaint alleging, inter alia, state common law claims; defendants moved to dismiss those claims pursuant to Fed.R.Civ.P. 12(b)(6) on the ground of preemption; the Coun held that they were not preempted, but twice certified the question for interlocutory appeal. See Drake, 290 F.Supp.2d at 376; 323 F.Supp.2d at 456. The Second Circuit accepted the Coun's second cenification and affirmed. See Drake, 458 F.3d at 51-52. Before the Second Circuit ruled on the preemption issue, defendants Laboratory Corporation of America ("LabCorp"), Kevin Wilson ("Wilson"), Nonhwest Toxicology ("Nonhwest"), David J. Kuntz ("Kuntz"), EISohly Laboratories ("EISohly"), William H, Whaley ("Whaley") and West Paces Fcrry Medical Clinic ("West Paces Ferry") med a second Rule 12(b)(6) motion to dismiss, assening that (I) substantively, Drake's state-law claims were not cognizable, (2) Drake's claims were barred by collateral estoppel, and (3) Drake's claims were barred by the statute of limitations. Defendants Wilson, Whaley, West Paces Ferry and EISohly also moved to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. Ahhough these motions were fully briefed in November 2004, see Docket Entry Nos. 96-111, the Coun elected, in the interest of judicial economy, to postpone their disposition until the Sccond Circuit ruled on the prcemption issue. The Second Circuit issued its preemption decision on July 19, 2006. See Drake, 458 F.3d 48. It explained that "Drake may seek state-law remedies for violations of the federal regulations," but noted that "[i]f Drake is assening that conduct addressed by the federal regulations is 'wrongful' under state law although it does not violate the federal regulations, such claims are preempted." [d. at 65. With respect to Drake's negligence claim, the circuit coun ruled that it was preempted only "to the extent that it refers to 'standards and protocols' other than those in federal regulations." [d. With respect to his negligent misrepresentation claim, the coun held that it was not WESTlAW © 2016 Thomson Reuters. No claim to original U.S. Govemmenl Works. Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 preempted. See id. 65-66. The court did not address Drake's other state-law claims-tortious interference, negligent infliction of emotional distress, civil conspiracy, and prima facie tort. *2 In light of the circuit court's preemption rulings, defendants' other proffered grounds for dismissal arc now meet for disposition. I For the reasons stated below, the Court grants in part and denies in part defendants' motions 10 dismiss. I. Failure to State a Claim A. Negligence A finding of negligence "may be based only upon the breach of a duty. If ... the defendant owes no duty to the plaintiff, the action must fail. Although juries determine whelher and to what ex lent a particular duty was breached, it is for the courts first to dctcnnine whether any duty exists." Darby v. Compagnie Nat'l Air Frallce, 96 N.Y.2d 343, 347 (2001) (citations omilled). The New York Court of Appeals has not had occasion to delermine whether a drug-testing facility owes a duty of care to a non-contracting employee. Nonetheless, two district courts within Ihe Second Circuit have held that it would recognize such a duty and, accordingly. a common law cause of action for negligence. See Coleman v. Town oj Hempstead, 30 F.Supp.2d 356, 365 (E.D.N.Y.1999) (laboratory may be liable under negligence theory since it owed plaintiff duty to maintain urine sample in chain of custody and preserve specimen for retesting); Santiago v. Greyhound Lines, Inc .. 956 F.Supp. 144, 153 (N.D.N.Y.1997) (doctor had duty to collect employee's specimen with due care). More recently, the Appellate Division, First Department, held: While a contractual obligation, slanding alone, will generally not give rise to lort liability in favor of a third party, the Court of Appeals has identified three circumslances in which a duty of care to non- contracling Ihird parties may arise out of the contractual obligation or the performance thereof ... (I) where the contracting party, in failing to exercise reasonable care in the execution of the contract, creates an unreasonable risk of harm to others, or exacerbates that risk; (2) where a plaintiff delrimentally relies on Ihe defendant's continued performance of a contraclual obligation; and (3) where the contracting party comprehensively agrees 10 assume and displace the promisee's safety-related obligations. Fernandez v. Otis Elev. Co .. 772 N.Y.S.2d 14, 17 (1st Dep't 2004) (inlemal quotation marks and cilations omilled) (citing Espinal v. Melville Snow Contractors, lnc., 98 N.Y.2d 136, 140 (2002)). Drake alleges that (I) "Delta entered into a contract with defendants with respect to the collection, testing, handling and or analysis of urine samples," Compl. , 125; (2) "Delta also contracted with defendant Whaley to perform the federally-mandated duties of Medical Review Officer ("MRO") for Delta," id. , 27; (3) "Wilson was the Certirying Scientist with respect to the initial testing, handling and! or analysis of Drake's urine sample by LabCorp," id. 1 17; (4) LabCorp negligently sent some other employee's drug test results 10 Delta and Whaley, "who was and is an employee, owner, officer, and agent of ,., West Paces Ferry," id. " 23, 46; (5) LabCorp and Whaley sent a sample of someone else's urine sample to Northwest, see id. , 53; (6) Northwest accepted and improperly documenled this sample and conveyed false results to Delta and Whaley, see id_ " 55, 56; (7) Northwest sent the remainder of the sample to EISohly, who tested it and "coneveyed unsubstantiated and improper speCUlation about the sample 10 Delta and Whaley," id. ~, 57, 60, 61; and (8) Kuntz at Northwest re- tested the sample without proper documentation or control, and transmitted the results to Delta, see id. 165, 66. *3 With respect to defendants LabCorp, Wilson, Northwest, Kunlz, EISohly and Whaley, these allegations are sufficient to support a claim of negligence under either (I) the district courts' interpretation of the duty of care owed under New York law, see Coleman, 30 F.Supp.2d at 365; Santiago, 956 F.Supp. at 153, or (2) the First Department's holding in Fernandez, 772 N.Y.S.2d at 17 ("[AJ duty of care to non- contracting third parties may arise ... where the contracting party, in failing to exercise reasonable care in the execution of the contract, creates an unreasonable risk ofhann to others, or exacerbales that risk .... "). Drawing "all reasonable inferences" in favor of the non- moving party as required under Rule 12(b)(6), Board oj WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 Educ. of Pawling Central School Dist. v. Schutz. 290 F.3d 476, 479 (2d Cir.2002), the Court holds that Drake also states a claim against West Paces Ferry under the doctrine of respondeat superior by alleging (I) that Deha contracted "with defendants with respect to the collection, testing, handling and or analysis of urine samples," Compl. ~ 125, and (2) that Whaley was an agent and employee of West Paces Ferry, id. ~ 23. See Lundberg v. State. 25 N.Y.2d 467, 470 (1969) ("[A]n employer will be liable for the negligence of an employee committed while the employee is ... doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly. over the employee's activities."). B. Tortious Interference "[Tlhe elements of a tortious interference claim are: (a) that a valid contract exists; (b) that a 'third party' had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; and (d) that the breach resuhed in damage to the plaintiff." Albert v. Lolesen. 239 F.3d 256, 274 (2d Cir.2001). The parties do not dispute that Drake was an at-will employee ofDeha. In cases involving at-will employment contracts, the New York Court of Appeals has upheld complaints in actions seeking damages for interference when the alleged means employed by the one interfering were wrongful as consisting of fraudulent representations, or threats, or as in violation of a duty of fidelity owed to the plaintiffby the defendant by reason of a relation of confidence existing between them. Absent some such misconduct, no liability has resuhed to one whose actions have induced nonpcrfonnance of a contract deemed to be voidable and thus unenforceable. Guard-Life Corp. v. S. Parker Hardware Mfg. Corp.. 50 N.Y.2d 183, 194 (1980) (internal citations omitted). 1295 (2d Cir .1996) (citing Kosson v. Algaze. 610 N.Y.S.2d 227,228-29 (1st Dep't 1994), afJ'd. 84 N.Y.2d 1019 (1995)). Ahhough Drake alleges that Whaley "abdicate[d] to Deha's management his federallymandated duty to make a final decision on the drug test," Compl. ~ 63, he makes no claim that Whaley ever acted without Deha's approval; accordingly, the claim against Whaley would have to be dismissed. *4 With respect to the remaining defendants, Drake alleges that "Whaley negligently and knowingly conspired with testing laboratories, defendants LabCorp, Northwest and EISohly and Deha employees and agents to improperly use the DOT drug testing to get rid of Drake." Compl. ~ 102. Under New York law, "[a]lIegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort," Alexander & Alexander of New York. Inc. v. Fritzen. 68 N.Y.2d 968, 969 (1986)(intemal quotation marks and citations omitted); accordingly, Drake must allege that one of the defendants actually committed tortious interference before he can connect the actions of the others. To this end, Drake alleges: By falsely and improperly indicating to Deha that Drake had aduherated his urine sample, supplying false and misleading information about the resuhs of Drake's drug test to Deha, and by improper communications with Deha, defendants wrongfully interfered with the performance of Drake's continued contract of employment, causing Drake to be dismissed from his employment with Deha. Compl. ~ 113. This allegation, as well as the separate allegations upon which it is based, see id. ~~ 35-66, support Drake's claim that defendants acted negligently in processing his urine sample. See supra Part I.A. They are insufficient, however, to state a claim for tortious interference since, by definition, "the interference must be intentional, not merely negligent or incidental to some other, lawful, purpose." Alvord and SWiji v. Stewart M. Muller Const. Co .• Inc .. 46 N.Y.2d 276, 281 (1978). Absent any allegation of wrongful means that would satisfY the standard in Guard Life, 50 N.Y.2d at 194, the claim against the remaining defendants Since Whaley was an agent of Deha (as Medical Review must also be dismissed. Officer or "MRO"), he could not be a "third party" liable for tortious interference unless he "exceeded the bounds of his ... authority." See Finley v. Giacobbe. 79 F.3d 1285, C. Negligent Misrepresentation WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 "[nhe elements for a negligent misrepresentation claim are that (I) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he ... should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment." Hydro Investors, Inc. v. Trafalgar Power Inc .. 227 F.3d 8, 20 (2d Cir.2000). In cases where the representation was not made directly to the plaintiff, the New York Court of Appeals has "required actual privity, or something approaching privity, such as conduct on the part of defendant linking defendant to plaintiff which evinces defendant's understanding of plain tift's reliance." Eiseman v. State. 70 N.Y.2d 175, 188 (1987). Nonetheless, a "[plaintiff] cannot claim reliance on alleged misrepresentations of which [he] was unaware." See Securities Investor Protection Corp. v. BDO Seidman. L.L.P .. 95 N.Y.2d 702, 709 (2001). *5 As an element of an action for negligent misrepresentation," [r]clinncc ... connotes something more than simply a bare hope or anticipation; in order that liability result from a negligent statement the words communicated must be 'words upon which others were expected to rely and upon which they did act or failed to act to their damage.' " Home Milt. Ins. Co. v. Broadway Bank and Tn/st Co .. 53 N.Y.2d 568, 578 (1981) (citation omitted). Accordingly, it is not sufficient that the plaintiff was adversely affected by the defendants' misrepresentation; whether the defendants' words were communicated directly to the plaintiff or to a third party, the plaintiff must have relied upon them-by acting or failing to act upon them-to his detriment. See Antonio.1S v. Mllhammad. 673 N.Y.S.2d 158, 159 (2d Dep't 1998) (holding arrestees could not maintain action against county detectives and assistant district attorneys where arrestees did not rely to their detriment on any information provided by them); Williams v. State. 456 N.Y .S.2d 491, 493 (3d Dep't 1982) (dismissing claim because "claimant did not rely upon the State's mispresentation, the Deputy Sheriff did"). Drake alleges that defendants made false representations to Delta, see Compl. ~ I 19; he does not allege that defendants made any false representation directly to him. In order to state a claim for negligent misrepresentation, then, Drake would have to allege that he was either in privity with defendants, or that defendants' conduct evinced an understanding that Drake would rely on their representations to Delta. See Eiseman. 70 N.Y.2d at 188. Drake fails to allege either. Although he alleges that his continued employment depended upon defendants' accurate reporting, see Compl. ~ 129 ("Defendants' misrepresentations were relied upon by Delta to terminate Drake's employment."), Drake has failed to allege that he even knew about the misrepresentations at the time he was fired, much less that he relied upon them to his detriment. D. Negligent Infliction of Emotional Distress A plaintiff may establish a claim for negligent infliction of emotional distress under either the "bystander" theory or the "direct duty" theory: A plaintiff may recover for a purely emotional injury under the 'bystander' theory when: (I)[he] is threatened with physical harm as a result of defendant's negligence; and (2) consequently [he] suffers emotional injury from witnessing the death or serious bodily injury of a member of [his] immediate family .... Under the 'direct duty' theory[,] a plaintiff has a cause of action ... if [he] suffers an emotional injury from defendant's breach of a duty which unreasonably endangered [his] own physical safety. Mortise v. United States, 102 F.3d 693, 696 (2d Cir. I 996) (citations omitted). Since Drake does not allege that defendants' negligence resulted in a threat of physical harm, or that defendants' breach of duty endangered his physical safety, his claim must be dismissed. E. Prima facie Tort *6 Drake's first asserted a claim for prima facie tort in his opposition papers, see PI.'s Mem. of Law in Opp'n at 40-41; it does not appear in his complaint. Even if it were asserted in the complaint-or the Court granted leave to amend to include it-the claim would nonetheless fail under Rule 12(b)(6). "The requisite elements of a cause of action for prima facie tort are (I) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful." Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43 (1985)_ Since Drake does not allege that defendants intended to cause his tennination, see supra Part I.B (discussion of WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 tortious interference claim), he fails to state the first element of the claim. F. Civil Conspiracy As discussed above, U a mere conspiracy to commit a tort is never of itself a cause of action .... Allegations of conspiracy are pcnnitted only to connect the actions of separate defendants with an otherwise actionable tort." Alexander. 68 N.Y.2d at 969 (internal quotation marks and citations omitted). "Since a civil conspiracy cause of action requires a showing of intentional conduct, negligence cannot serve as the underlying tort." Rosell v. Brown & Williamsoll Tobacco Corp .. 782 N.Y.S.2d 795, 795 (2d Dep't 2004). Only Drake's negligence claim survives defendants' motion to dismiss; accordingly, Drake cannot proceed on a claim for civil conspiracy. II. Collateral Estoppel According to the New York Court of Appeals, the doctrine of collateral estoppel: precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party .... [T]he issue must have been material to the first action or proceeding and essential to the decision rendered therein, and it must be the point actually to be determined in the second action or proceeding such that a different judgment in the second would destroy or impair rights or interests established by the first. Ryan v. New York Telephone Co .. 62 N.Y.2d494, 500 (1984) (internal quotation marks and citations omitted). Defendants argue that Drake's claims, insofar as they arc based on alleged violations offederal drug testing regulations, are barred since they have already been decided by the Second Circuit. See Drake v. Delta Air Lilies. IlIc.. 147 F.3d 169, 170-71 (2d Cir.1998) (finding no implied private right of action for airline employees to enforce federal drug testing regulations). Yet Drake's surviving claim for negligence under New York law is not based on the circuit court's determination of that issue, as acknowledged by the Second Circuit in its recent decision. See Drake, 458 F.3d at 64 ("Because remedies are not addressed by the FAA regulations, the state law under which Drake seeks remedies for violations of the regulations does not 'cover the subject matter' of the regulations."). Moreover, several facts underlying the present case were not even known to Drake or the courts at the time of that decision. Accordingly, collateral estoppel does not apply. III. Statute of Limitations A. Standard of Review *7 "Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affinnative defense in a pre·answer motion to dismiss[, which] is properly treated as a Rule 12(b)(6) motion to dismiss .... " Ghartey v. St. John's Qlleens Hosp .• 869 F.2d 160, 162 (2d Cir.1989); see also F.D.I.C. v. Pelletreall & Pelletreall. 965 F.Supp. 381, 388 (E .D.N.Y.i997) ("While a statute-of-limitations defense may be raised in a motion to dismiss under Fed.R.Civ.P. 12(b)(6), such motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his ciaim which would entitle him to relief." (internal quotation marks and citation omitted)). B. New York Statute of Limitations and Tolling In New York, the statute of limitations for negligence is three years. See N.Y. C.P.L.R. § 214; see also Green v. Emmanllel African Methodist Episcopal Chllrch. 718 N.Y.S.2d 324, 324 (1st Dep't 2000) (applying three-year statute of limitations). The statute runs from the date of the injury, not the date the injury was perceived. See Fleet Factors Corp. v. Werblin. 495 N.Y.S.2d 434, 436 (2d Dep't 1985) (citing Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300 (1936».2 The statute of limitations may be tolled, however, under the theory of equitable estoppel. "New York ... use[s] the label 'equitable estoppel' to cover the circumstance[ ] where the defendant conceals from the plaintiff the fact that he has a cause of action._ .. " Pearl v. City of Long Beach. 296 F.3d 76, 82 (2d Cir.2002) (internal quotations and citation omitted). "[A] defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from tiling a timely action .... [D]ue diligence on the part of the WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 plaintiff in bringing his action is an essential element for the applicability of the doctrine of equitable estoppel, to be demonstrated by the plaintiff when he seeks the shelter of the doctrine." Simcuski v. Saeli. 44 N.Y.2d 442, 448-50 (1978). "The determinative factor is whether there is purposeful concealment." Kammddin v. Desmond. 741 N.Y.S.2d 559, 561 (2d Dep't 2002). C. Facts Drake submitted a urine specimen to his employer Delta on October 28, 1993. See CampI. , 32. The specimen was initially tested by Compuchem (LabCorp's predecessor in interest), see id. '39, and subsequently tested by Northwest, see id. ,~ 55-56,64; Drake alleges that defendants improperly documented their testing procedures and that the positive test results for adulterants were false, see id. " 51, 53-55, 61. Delta terminated Drake's employment on December 28, 1993. See id. ~ 70. On September 29, 1994, Delta sent Drake documents from Compuchem that described Drake's urine sample as "unsuitable for testing." Drake Decl., Ex. B (Drug Testing Custody and Control Form). In the same correspondence, a Delta representative wrote that "[w]hile Delta does have other documents concerning that test, those documents pertain to Delta's personnel policies and the discipline that was imposed in this situation." Id. (Letter). *8 Drake filed this action against defendants on December 28, 200 I, alleging that: (I )[f]ollowing the termination of his employment, [he] promptly requested [that] Delta and defendants provide him with all records relating to his ... drug test," CampI.' 71; (2) "[d]efendants failed and refused to provide ... the required documentation, until the Federal Aviation Authority ('FAA') directed defendant Whaley and Delta in February 2000, to produce same," id. ~ 72; and (3) "in order to conceal their wrongful acts, all the defendant laboratories (LabCorp, Northwest and EISohly) intentionally destroyed or claim to have lost all records of the testing," id. , 73. In opposition to the present motions, Drake further alleges that he requested records from Compuchem in letters dated October 25, 1994, and September 16, 1996, and that he received no response. See Drake Decl. " 8, 9; id .. Exs. C and D (Letters). D. Analysis If the Court were to consider the filing date only, it would dismiss Drake's negligence claim since it was asserted eight years after the date of injury (i.e., termination of employment). But Drake alleges that defendants ignored his requests for information and intentionally concealed their wrongdoing until February 2000, when the FAA directed them to produce documents related to the drug tests. Drake's allegations of defendants' purposeful concealment and his own due diligence during the period he wishes to toll are sufficient to state a claim for equitable estoppel; accordingly, the Court denies defendants' motion to dismiss on statute-of- limitations grounds and leaves the issue to be decided at trial. See Kat= v. Goodyear Tire & Rubber Co .• 737 F.2d 238, 243 n. 2 (2d Cir.1984) ("Where the statute of limitations operates as an affirmative defense ... issues offact as to the application of that defense must be submitted to the jury."). IV. Personal Jurisdiction Defendants Wilson, Whaley, West Paces Ferry and EISohly argue that Drake's claims against them should be dismissed for lack of personal jurisdiction. "Eventually, ... the plaintiff must establish [personal] jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial." Marine Midland Bank. MA. v. Miller. 664 F.2d 899, 904 (2d Cir.1981). Nonetheless, the Second Circuit has held that: In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. Id. (citations omitted). "If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials." Id.; see also In re Magnetic Audiotape Anti/nlst Litigation. 334 F.3d 204, 206 (2d Cir.2003) ("Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction."); PDK Labs Inc. v. Friedlander. 103 F.3d 1105, 1108 (2d Cir.1997)("A plaintiff facing a Fed.R.Civ.P. 12(b)(2) motion to dismiss made before any discovery need only allege facts constituting WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Drake v. Laboratory Corp. of America Holdings. Not Reported In F.Supp.2d (2007) 2007 WL 776818 a prima facie showing of personal jurisdiction."). Where the issue is addressed on the affidavits submitted. "ail ailegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintifrs favor. notwithstanding a controverting presentation by the moving party." A.l. Trade Finance. Inc. v. Petra Bank. 989 F .2d 76. 79-80 (2d Cir.1993) (citation omitted). *9 Although a court "will not draw 'argumentative inferences' in the plaintifrs favor," Robinson v. Overseas Military Sales Corp., 21 F.3d 502. 507 (2d Cir.1994) (citation omitted). the Second Circuit has held that limited discovery may be necessary to develop plaintiffs ailegations of jurisdiction prior to a finding that plaintiff failed to make a prima facie showing. See In re Magnetic, 334 F.3d at 207-08 (holding district court improperly denied plaintiffs opportunity to engage in limited discovery prior to dismissal for lack of personal jurisdiction); see also APWU v. Potter, 343 F.3d 619.627 (2d Cir.2003) ("[A] court should take care to give the plaintiff ample opportunity to secure and present evidence relevant to the existence of jurisdiction," (internal quotation marks and citation omitted)). Accordingly. district courts within the Second Circuit have ordered jurisdictional discovery where the plaintiff made less than a prima facie showing. but "made a sufficient start toward establishing personal jurisdiction." Uebler v. Boss Media, 363 F.Supp.2d 499. 506 (E.D.N.Y.2005) (internal quotation marks and citation omitted); see also Smit v. Isiklar Holding A.S., 354 F.Supp.2d 260. 263(S.D.N.Y.2005) ("[A] court may order limited discovery targeted at the missing jurisdictional clements. if plaintiff has shown that such an exercise would serve tojil/ allylloles in its showing." (internal quotation marks and citation omitted»; Aerotel, Ltd. v. Sprint Corp .. 100 F.Supp.2d 189. 194 (S.D.N.Y.2000) (denying motion to dismiss to permit plaintiff to take jurisdictional discovery despite plaintifrs "conclusory" allegations). A. New York Long-Arm Statute uPcrsonal jurisdiction of a federal court over n non-resident defendant is governed by the law of the state in which the court sits-subject, of course, to certain constitutional limitations of due process." Robinson, 21 F.3d at 510. New York's long-arm statute provides. in rclevant part: [A] court may exercise personal jurisdiction over any non- domiciliary, or his executor or administrator, who in person or through an agent: I. transacts any business within the state or contracts anywhere to supply goods or services in the state; or ••• 3. commits a tortious act without the state causing injury to person or property within the state ...• if he ... (ii) expects or should reasonably expect the act to have consequences in the statc and derives substantial revenue from interstate or international commerce; or N.Y. C.P.L.R. § 302(a). For purposes of section 302(a)(I), a non-domiciliary "tmnsacts business" when he "purposefully avails [himself] of the privilege of conducting activities within [New York]. thus invoking the benefits and protections of its laws." McKee Electric Co. v. Raliland-Borg Corp .. 20 N.Y.2d 377. 382 (1967) (quoting Hanson v. Dellckla. 357 U.S. 235. 253 (1958)). Plaintiffs claim must arise out of that business activity. See McGowan v. Smith, 52 N.Y.2d 268. 272 (1981) ("Essential to the maintenance of a suit ... is the existence of some articulable nexus between the business transacted and the cause of action sued upon."). *10 For the purposes of section 302(a)(3)(ii). "New York courts have looked to both the absolute amount and percentage of a defendant's interstate income in determining whether that income is substantial." Traver v. Officille Meccaniche Tosllci SpA, 233 F.Supp.2d 404. 413 (N.D.N.Y.2002) (internal quotation marks and citation omitted). District courts within the Second Circuit agree that "the time the complaint was filed ... is relevant in determining whether the defendant meets the 'substantial revenue' prong of § 302(a)(3)(ii)." but have "consider[ed] a period of years around the time that the complaint was filed. rather than only that one particular year. in determining whether the defendant derives substantial revenues from interstate or intemational commerce." Id. at 413-14 (citing cases considering defendants' revenue over three or four·year period). B. Federal Due Process Requirements Once the Court determines there is a statutory basis for exercising jurisdiction under New York law. it must then assess whether exercising personal jurisdiction over the non· domiciliary defendant comports with due process. The due process test consists of both a "minimum contacts" inquiry WESTLAW © 2016 Thomson Reuters. No ctaim to original U.S. Government Works. 7 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 and a "reasonableness" inquiry. See Metropolitan Life Ins. Co. v. Robertson-Ceca Corp .. 84 F.3d 560, 567 (2d Cir. I 996). Wilh respeel 10 Ihe firsl inquiry, Ihe Supreme Coun has drawn a distinction between uspecific" jurisdiction and "general" jurisdiction. Specific jurisdiction exists when "0 Statc exercises personal jurisdiction over a defendant in a suit arising OUI of or relaled 10 Ihe defendanl's conlacls wilh Ihe forum." Helicopteros Naciollales de Colombia. S.A. v. Hall. 466 U.S. 408,414 n. 8 (1984). Generaljurisdiclion is based on Ihe defendant's general business conlacts with Ihe forum stale, and pennits a coun to exercise jurisdiction in a case where Ihe subject matter of the suil is unrelaled 10 Ihose contacls. See id. 01415 n. 9. Since general jurisdiclion is nol related 10 Ihe evenls giving rise 10 Ihe SUil, Ihe Supreme Coun has imposed a more stringent minimum contacts lest by requiring Ihe plainliff 10 demonslrale Ihe defendanl's "conlinuous and systematic general business contacts" with the forum statc. Id.aI416. The second inquiry osks "whelher Ihe assenion of personal jurisdiclion com pons with 'tradilional nOlions offoir play and subslanlial juslice' -Ihal is, whether it is reasonable under the circumSlances of Ihe particular case." Metropolitan Life. 84 F .3d al 567 (ciling Illternational Shoe Co. v. Washington. 326 U.S. 310,316 (1945». The Supreme Court hos held that the coun musl evoluole Ihe following faclors .s part of this "reasonableness" analysis: (I) Ihe burden Ihal Ihe exereise of jurisdiclion will impose on Ihe defendonl; (2) the interesls of Ihe forum slale in adjudicoting Ihe case; (3) Ihe plaintiffs interest in oblaining eonvenienl and effeclive relief; (4) the interstate judicial system's interest in oblaining Ihe most efficient resolulion oflhe conlroversy; and (5) Ihe shared interest of Ihe states in furthering substantive social policics. *\\ Id. (ciling Asaili Metallndlls. Co. v. SlIperior COllrt. 480 U.S. 102, 113-14(1987). C. Wilson Drake alleges Ihat Wilson is: (I) "an agenl of LabCorp ... which has New York offices"; ond (2) "0 fully engaged conspiralor involved in all aspecls of Ihe illegal aClions surrounding Drake's testing." PI.'s Mem. of Law in Opp'n al 30 (ciling Decl. of Samuel O. Maduegbuna ("Madu.Decl."), Exs. 3 (documents received from Delta's counsel in Feb. 2000), 13 (Jetter from Wilson 10 Whaley dOled Nov. 4,1993». Nowhere in Drake's submissions docs he allege Ihal Wilson personally transacted business in New York as required under section 302(0)(1); 10 allow discovery on Ihis issue would be to draw an impcnnissiblc "argumentative inference" in Drake's favor. See Robinson. 21 F.3d at 507. Nor has Drake "made a sufficienl start toward establishing personal jurisdiclion" under seclion 302(aX3)(ii) that would support limited discovery, see Uebler v. Boss Media. 363 F .Supp.2d at 506: Although Ihe parties do not dispule that LabCorp has derived substantial revenue from interstate commerce, the "revenues from interstate commerce derived by [3 corporalion] cannol be aUribuled 10 [ils non-domiciliary employee]." PC COM,lnc. v. Protean. Inc .. 906 F.Supp. 894, 906 n. 10 (S.D.N.Y. I 995)( ciling Lehigh Valley Indus .. Inc. v. Birellballm. 389 F.Supp. 798, 805 (S.D.N.Y.), aff'd, 527 F.2d 87 (2d Cir. I 975». Finally, Drake's ollegalions of conspiracy are not sufficient 10 support the Court's exercise of personal jurisdiclion over Wilson or ony of the olher defendonlS. While Drake cites several dislricl court decisions for Ihe proposilion Ihat acls committed in New York by Ihe co-conspirator of an out- of-stale defendanl pursuanl 10 Ihe conspiracy may subjecl Ihe oUI-of-slale defendanl to personal jurisdielion in New York, see. e.g .. Chrysler Capital Corp. v. Celltllry Power Corp .. 778F.Supp. 1260, 1266 (S.D.N.Y.1991) (same, citing N.Y. C.P.L.R. § 302(a)(2», Ihol rule is inapplieable 10 Ihe present case because (I) Drake does nOlallege Ihal any oflhe defendanls committed a lort in New York, and (2) Drake's only surviving claim is negligence, for which there can be no conspiracy under New York low. See infra Part I.F. D. Whaley and West Poees Ferry To support the Court's exercise of personal jurisdiction over Whaley, Drake olleges thaI Wholey (I) "earned subslantial income ($36,000) from his duties as Delta's [Medical Review Officer]," and (2) "knowingly involved himself with Ihousonds of New York employees and Iheir leSIS, for financial gain." PI.'s Mem. of Law in Opp'n al 29 (ciling Madu. Decl., Ex. 33 (Dep. of Dr. William Whaley daled Apr. 30, 2002». Drake docs nol dispule Ihal Whaley worked as Delto's MRO "from I 9881hrough May, 2001," orlhol Wholey was no longer employed by Delta 01 the lime the aclion wos commenced in December 2001. Decl. of Dr. William H. Whaley ("Whaley Decl.") , 5. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Governrnent Works. 8 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 *12 None of Drake's submissions contain an allegation that Whaley tronsacted business within New York; on the controry, Droke's primary claim against Whaley is that he was negligent in documenting the testing of Drake's urine sample by laborotories outside New York. See. e.g .. CampI. ~~ 53 ("labCorp, in concert with ... Whaley, sent an aliquot of someone else's urine sample to Northwest ... claiming that [it] was obtained from Droke."). Accordingly, the Court cannot exercise personal jurisdiction over Whaley pursuant to section 302(a)( I). Droke's allegations do demonstrote, however, that he has "made a sufficient start toward establishing personal jurisdiction" under section 302(a)(3)(ii). See Uebler v. Boss Media. 363 F.Supp.2d at 506. Droke alleges that Whaley committed negligence outside New York, see supra Part I.A, and, by claiming that Whaley "knowingly involved himself with thousands of New York employees," he also alleges that Whaley should have reasonably expected his negligence to have consequences in New York (i.e., Drake's tcnnination), Under the doctrine of respondeat superior, these reasons arc also sufficient to make a similarly sufficient start with respect to West Paces Ferry. Unclear from Drake's allegations, though, is whether these defendants' income from controcts with Delta-or from any other source-constituted "substantial revenue from interstate or international commerce" around the time the action was tiled. The Court therefore orders limited discovery on personal jurisdiction over Whaley and West Paces Ferry, including discovery as to whether the exercise of personal jurisdiction over those defendants would comport with due process. E. EISohly Droke alleges that EISohly "was and is a corporotion doing or tronsacting business within this judicial district," CampI. , 21, and directs the Court's attention to a statement on EISohly's website that the laborotory holds a New York Department of Health lab Director Permit. See id. (citing Madu. Decl., Ex. 29 (website printout». These facts arc insufficient for purposes of section 302(a)( I) because Droke does not allege that EISohly's business activities in New Yark gave rise to the negligence claim, nor does he dispute that "all communications regarding this case ITom and to EISohly have been outside the State of New York." Def.'s Mem. of law in Support of Mot. to Dismiss at II (citing Ex. D (Analysis of Split Specimen». As with Whaley, however, Droke's allegations regarding EISohly may prove sufficient to establish a prima facie showing of personal jurisdiction under section 302(a)(3) (ii) after further discovery. Droke succeeds in alleging that (I) EISohly committed negligence outside New York, see CampI. ~ 61 ("EISohly reported negative findings for the presence of drugs and adulteronts in Droke's alleged urine sample, but nevertheless conveyed unsubstantiated and improper speculation about the sample to Delta and Whaley."); (2) the negligence caused injury to Droke in New York; and (3) EISohly derived some income ITom interstate commerce (e.g., as a Mississippi company, providing services to Delta, a Georgia company) around the time the action was filed. Limited discovery, however, will be needed to determine whether EISohly could have reasonably expected that its negligence would have consequences within New York, and whether its income from interstate commerce is "substantial." The Court therefore orders limited discovery on personal jurisdiction over EISohly, including discovery as to whether the exercise of personal jurisdiction over EISohly would comport with due process. CONCLUSION '13 Defendants' motion to dismiss Droke's claims for tortious interference, negligent misrepresentation, negligent infliction of emotional distress, and civil conspiracy is granted pursuant to Fed.R.Civ.P. 12(b)(6); Drake's claim for prima facie tort, even if properly asserted in his complaint, would also fail under Fed.R.Civ.P. 12(b)(6). All claims against defendants Wilson are dismissed for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). Droke may pursue his negligence claim against labCorp, Northwest, Kuntz, EISohly, Whaley and West Paces Ferry. The parties are directed to proceed to discovery before the assigned magistrote judge on the issues of negligence and personal jurisdiction over EISohly, Whaley and West Paces Ferry. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2007 Wl 776818 WESTLAW © 2016 Thomson Reulers. No claim 10 original U.S. Government Works. 9 Drake v. Laboratory Corp. of America Holdings, Not Reported In F.Supp.2d (2007) 2007 WL 776818 Footnotes 1 Further applicalion of the circuit court's preemption rulings may be necessary at trial. See Drake, 458 F.3d at 66 ("On remand ... and as the litigation proceeds, Drake will continue to be precluded from developing theories of recovery that are incompatible with the FAA's drug testing program."). 2 If not dismissed. Drake's claims for negligent infliction of emotionat distress and tortious interference would also be subject to a three-year statute of limitations. See, e.g., Augeri v. Roman Calholic Diocese of Brooklyn, 639 N.Y.S.2d 640, 641 (4th Dep't1996) (negligent infliction of emotional distress); Mannix Induslries, Inc. v. Anlonucci, 594 N.Y.S.2d 327. 329 (2d Dep't) (tortious Interference), appeal dismissed wilhoul opinion, 82 N.Y.2d 846 (1993). Drake's claim for negUgent misrepresentation would be subject to a six-year statute of limitations. See, e.g., Milin Phannacy, Inc. v. Cash Regisler Sys .• lnc .. 570 N.Y.S.2d 341, 341-42 (2d Dep't 1991). End of Document e 2016 Thomson Reuters. No claim to original U.S, Government Works. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 f KeyCite Yellow Flllg· Negative Treatment Distinguished by Animal Hasp. ofNashull.lr.c. v. Anlcch Diagnostics, D.N.H.. May 17,2012 2009 WL 5033949 Only the Westlaw citation is currently available. NOT FOR PUBLICATION United States District Court, D. New Jersey. Lorie GARLICK, Tina L. Schroeder, Joy Scott, Bryan E. Bledsoe, Wendy R. BRody, Kelly Buckley, G. Geoffrey Craig, Gay Cummins, Marsha Dienelt, Beth Gibson, Michelle J. Gillum, Robin M. Green, Richard P. Paczynski, Kristie Smith, Jill Welton, Plaintiffs, v. QUEST DIAGNOSTICS, INC., National Medical Services, Inc., d/b/a Nms Labs, Labcorp, a Subsidiary of Laboratory Corporation of America Holdings, Dts a/k/a Drug Testing Systems, First Lab, a Subsidiary of FHC Health Systems, Inc., Compass Vision, Inc., First AdvantagE Division of The First American Corporation and "John Doe" Corporations, Defendants. Civil Action No. 06-cv-6244 CDMC). I Dec. 14, 2009. West KeySummary • Health y.. Employment Under California law, third-party administrator and testing laboratory hired by state medical board to conduct test used to detect alcohol consumption owed a duty of reasonable care to test subjects when promulgating and administering tests to assess subjects' compliance with workplace alcohol policies. Subjects alleged that the test was advertised as conclusively indicating alcohol consumption if the subject tested at a level above the cut-off rate, but subjects claimed that the test set forth an extremely low reporting limit which resulted in false positives and inaccurate test results. Cases that cite this headnote Attorneys and Law Firms Norman Perl berger, Pomerantz, Perlberger & Lewis, LLP, Bala Cynwyd, PA, for Plaintiffs. Austin A. Evans, Lavin O'Neil Ricci Cedrone & Disipio, Eileen Lampe, Eckert Seamans Cherin & Mellott LLC Two Liberty Place, Philadelphia, PA, Joseph E. O'Neil, Lavin, O'Neil, Ricci, Cedrone & Disipio, Ml. Laurel, NJ, Eric Arthur Weiss, Jonathan D. Weiss, Marshall, Dennehey, Warner, Coleman & Goggin, PC, Cherry Hill, NJ, for Defendants. OPINION DENNIS M. CAVANAUGH, District Judge. *. This mailer comes before the Court upon motion by Defendants Quest Diagnostics, Inc. ("Quest"), National Medical Services, Inc. dlbla NMS Labs C"NMS"), Compass Vision, Inc. (nCompass"), First Hospital Laboratories, Inc., a subsidiary of FHC Health Systems, Inc. ("FirstLab") (collectively "Defendants") to dismiss the Amended Complaint of Plaintiffs Lorie Garlick, Tina L. Schroeder, Joy SCOll, Bryan E. Bledsoe, Wendy R. Brody, Kelly Buckley, G. Geoffrey Craig, Gay Cummins, Marsha A. Dienelt, Beth Gibson, Michelle J. Gillum, Robin M. Green, Richard P. Paczynski, Kristi Smith and Jill Welton (collectively "Plaintiffs") pursuant to FED. R. CIV. P. 12(b)(6). I. BACKGROUND Plaintiffs are a class of licensed, or formerly licensed, health care professionals and former alcohol abusers. t Plaintiffs are, or were, licensed to practice in several states including California, Kansas, Pennsylvania. Texas, Indiana and Oklahoma. See Plaintiffs' Amended Complaint ("Complaint") ~~ 2-6. As part of Plaintiffs' respective recovery plans they were to abstain from consuming alcoholic beverages. To monitor their consumption of alcohol, the state medical licensing boards required Plaintiffs to submit to ethyglueuronide, or "EtG" testing. EtG is a metabolite of WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 Wl 5033949 alcohol, and its detection can provide evidence of alcohol consumption as much as five days after consuming an alcoholic beverage. Complaint 1 46. Plaintiffs, however, allege that a variety of factors, including ordinary products such as hand sanitizer (routinely used in hospitals), and other factors such 8S agc, sex and certain medical conditions. may contribute to positive EtG results. Complaint 11 30. In light of these factors, Plaintiffs assert that EtG test subjects may test positive without having consumed alcohol. The licensing boards monitored Plaintiffs' alcohol consumption by contracting with third-party administrators ("TPAs"), Compass and FirstLabs, to collect urine samples for EtG analysis. The samples were tested by one of the two laboratory Defendants, Quest and NMS. The TPA Defendants provided the services of Medical Review Officers ("MRO") for alcohol and drug screening programs in the United States. The TPA Defendants interpreted Plaintiffs' EtG tests results and reported to the licensing boards. Complaint 11 24. Plaintiffs tested positive for EtG despite the fact that all Plaintiffs claim that they had not consumed alcohol. Plaintiffs sued the laboratory Defendants that developed the test, and the TPAs that reviewed the results. Plaintiffs brought this action in December 2006, alleging a wide variety of claims. Plaintiffs subsequently withdrew all of their claims except for negligence and breach of fiduciary duty. On December 28, 2007, this Court dismissed both causes of action for failure to state a claim. Plaintiffs appealed, and the Third Circuit determined that the initial pleadings were insufficient for a court to properly assess Plaintiffs' claims. See Garlick v. Quest Diagnostics. Inc .. 2009 U.S.App. LEXIS 2562, at ·7, 2009 WL 282021 (3d Cir.NJ.2009). The Third Circuit remanded, and directed Plaintiffs to amend their claims. The Court observed that, *2 Garlick has sued two groups of defendants and makes distinct yet inter-related negligence claims against each. And the substance of those claims may raise issues of first impression in many of the relevant state-law tort regimes. These features of the case made it especially important for Garlick to have pleaded her right to relief with precision. Yet, the language of the complaint, taken together with the arguments made to this Court (in the briefs and at oral argument), suggest that she instead took a somewhat scallershot approach. Garlick's claims are not clear enough for us to apply the pertinent [law), in this case various bodies of state tort law. We will exercise our discretionary authority to give Garlick the opportunity to refine [them) into clear enough terms such that the District Court may do so in the first instance. Id. In light of this decision, Plaintiffs amended their Complaint on March 13,2009. With the benefit of revised pleadings, this Court will consider whether Plaintiffs have stated a claim upon which relief can be granted. Plaintiffs assert that the EtG test, even when properly performed, has an unreasonably high likelihood of gcnerating a false positive for alcohol consumption. 2 In their Amended Complaint, Plaintiffs assert that Quest and NMS were negligent in "promoting, advertising, marketing, selling, reporting, interpreting and selling arbitrary cutoffs for EtG drug testing for alcohol abuse." 3 For example, Plaintiffs allege that Quest falsely advertised that "EtG is not detectable in urine unless an alcoholic beverage has been consumed," and that NMS was negligent in claiming that "any value above 250 nglmL indicates alcohol consumption" and that the test was "validat [ed)." Plaintiffs allege that these statements are contrary to scientific evidence, and that the two testing labs were, therefore, responsible for selling unreliable EtG cut-off levels for the alcohol tests. Plaintiffs also contend that TPA Defendants, Compass and FirstLab, were negligent in their "promoting, advertising, markcting, selling and contracting with professional licensing boards for EtG testing, and their designing, implementing, and managing professional drug and alcohol testing programs using the EtG test, and reporting and interpreting the EtG test at the arbitrarily set cutoffs as sole proof of professional alcohol abuse." For example, Plaintiffs alleged that Compass erroneously asserted that EtG results of 500 ngl mL conclusively proved intentional consumption of alcohol. Plaintiffs argue, then, that the four Defendants were negligent in designing and implementing the test. On April IS, 2009, Defendants moved to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(bX6) for failure to state a claim. II. STANDARD OF REVIEW WESTLAW © 2016 Thomson Reuters. No claim 10 original U.S. Government Works. 2 Garlick v. Quo.1 Dlagnosllcs, Inc., Nol Roportod In F.Supp.2d (2009) 2009 WL 5033949 In deciding a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintilT. See Warlh v. Seldin, 422 U.S. 490, SOl, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Tn/mp HOlels & Casino Resorls, Inc .. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.1998). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears beyond doubt that no relief eould be granted "under any set of faets which could prove consistent with the allegations," a coun shall dismiss a complaint for failure to state a claim. Hishan v. King & Spalding. 467 U.S. 69, 73, 104 S.C!. 2229, 81 L.Ed.2d 59 (1984). In Bell Alla",ic Carp. v. Twombly the Supreme Coun clarified the Rule 12(b)(6) standard. 550 U.S. 544, 127 S.C!. 1955, 167 L.Ed.2d 929 (2007). Specifically, the Coun "retired" the language contained in Conley v. Gibson. 355 U.S. 41, 78 S.C!. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in suppon of his claim, which would entitle him to relief."ld. at 1968 (citing Conley. 355 U.S. at 45-46). Instead, the Supreme Coun instructed that "[fJactual allegations must be enough to raise a right to relief above the speculative leveL" Id. at 1965. *3 Ultimately, the question is whether the claimant can prove a set of facts consistent with his or her allegations that will entitle him or her to relief, not whelher thai person will ultimalely prevail. Semerenko v. Cendant Corp .. 223 F.3d 165,173 (3d Cir.2000). III. DISCUSSION Plainliffs assen negligence claims againsl all Defendanls. 4 The basic elemenls of a negligence claim are common to all Plainliffs. PlainlilTs must plead: (I) a duty owed 10 PlaintilT by Defendanl; (2) a breach of that duty; and (3) an injury 10 Plainliff resulting from Defendanl's breach. See Bilt- Rite Contractors. Inc. v. Archilecil/ral SII/dio, 581 Pa. 454, 866 A.2d 270, 280 (Pa.2oo5); Siddons v. Cook, 382 N.J.Super. I, 887 A.2d 689 (App.Div.2oo5); Rhodes v. Wrighl, 805 N .E.2d 382, 385 (Ind.2004); Williamson v. City 0/ Hays, 175 Kan. 300, 64 P.3d 364, 372 (Kan.2003); Arliglio v. Corning Inc .. 957 P.2d313, 1318 (CaI.l998); Krokowskiv. Henderson Nat'l Corp., 917 P.2d 8, II (Okla.1996); Grealer HOl/stin Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. I 990). Defendanls firslargue Ihat PlaintilTs' negligence claims must fail because laboratories and third-pany adminislrators do nol owe a duty of care to test subjects. Next, Defendants argue that even if PlaintilTs can make out a claim for negligence, their claims must fail because all communications from Defendants to the state medical boards are privileged, and therefore cannot be used to suppon PlaintilTs' cause of action. A, NEGLIGENCE-DUTY OF CARE The first question before this Coun is whelher laboratories nnd third-pany administrators hired by n slale medical board to conduci alcohollcsling of health care professionals owe a duty of care to Ihe individuals being tesled. As previously determined, this Coun will apply the law of the Plaintiffs' home states: California, Kansas, Pennsylvania, Texas, Indiana and Oklahoma. 5 The Coun will assess the applicable law of each state in tum. I. CALIFORNIA The Coun finds that California would recognize a duty ofcare owed from Defendants to Plaintiffs. As a number of recent decisions have eonlTonted the precise question before this Coun, the cases are wonh discussing at length. In QI/isenberry v. Compass Vision, Inc., 618 F.Supp.2d 1223 (S.D.CaI.2007), the plaintilT assened a negligence claim against a laboratory and TPA. Plaintirrs complaint alleged that '~he EtG program ran by Defendants for purposes of testing nurses for substance abuse sets fonh an extremely low reponing limit." Jd . At 1226. 6 As a result of the unreliably low cut-off, "individuals who consume ordinary products such as a mouthwash [could potentially have] fail[ed] the test." Id. The Coun determined that laboratories and TPAs owe a duty to the individuals whose specimens they test at the request of others (i.e., employers). Jd. 1230-31. Although the Coun noted that couns ncross the country were split on the issue, it determined that a duty existed. See id. at 1228. In addition to reviewing analogous case law, the Coun conducted its own duty analysis, selling fonh a number of factors to be considered in determining whether a duty exists: *4 (I) the foreseeability of harm to the plaintilT; (2) the degree of cenainty that the plaintiffsulTered injury; (3) the eloseness of the connection between the defendant's conduct nnd the injury; (4) the extent to which the transaction WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Garlick v. Cluest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 was intended to atTect the plaintitT; (5) the extent of the burden to the defendant and consequences to the community of imposing a duty of care; (6) the moral blame attached to the defendant's conduct; (7) the availability, cost, and prevalence of insurance for the risk involved; and (8) the policy of preventing future harm. Id. at 1229-30 (internal citations omitted). The Court placed special emphasis on the first factor-the foreseeability of the harm-and explained that to determine whether a duty exists, California courts reject "overly rigid common Jaw formulations ... in favor of allowing compensation for foreseeable injuries caused by a defendant's want of ordinary care." /d. at 1228 (citations omitted). They observed that "[w]e cannot imagine a more foreseeable harm than the harm that may result from inaccurate laboratory tcsting of individuals ... [as testing] is often a pre-requisite to being hired, promoted, or even continuously employed." Id. at 1230. The Qllisenberry Court found that the second, third, fourth and fifth factors were also satisfied. Jd. It was undisputed that Plaintiff has sutTered injury-suspension and potential loss of nursing license. [d. There was a clear connection between Defendants' conduct and Plaintiffs injury; in fact, Defendants fully intended that the testing would have an etTect on PlaintitT and similarly situated individuals. Id. As to the remaining factors, the Court found "that any potential burden on Defendants is outweighed by the need to protect thc public from the consequences of erroneous laboratory test results ... [and t]o hold otherwise would mean to deprive thousands of individuals from an opportunity to challenge or receive any recourse for the repercussions they may suffer due to negligently performed laboratory teSis producing erroneous or inaccurate test results." [d. (emphasis added). The laboratory, Quest, had a duty to reasonably administer the EtG tests, and the TPA, Compass, had a duty to exercise reasonable care in the "design, implementation, and management of drug and alcohol testing programs." Id. at 1226. Based on the duty analysis in Qllisenberr),. Plaintiffs, here, contend that California would recognize a negligence cause of action against Defendants. 7 PlaintitTs 81so rely on Wilson v. Compass Vision, Inc., 2007 WL 4570613 (N.D.Cal. Dec.27, 2007) (unpublished) and Cleveland v. Compass Visioll. IIIC., 2008 WL 576755 (N.D.Cal. Feb.29, 2008) to assert that a duty of care exists in under the facts of this case. The Wilson Court confronted facts nearly identical to those in Qllisenberry. The plaintitT, a registered nurse, contended that she was wrongfully suspended and terminated when she tested positive for opiates after consuming poppy seeds. She asserted that the Defendants, introduced an "unfit test onto the marketplace and breached their duty to use a reasonable degree of care to avoid erroneous test results by promoting. advertising, marketing, selling, andlor conlrncting wilh the licensing board, andlor designing. implementing, and managing the ... alcohol testing program ... andlor utilizing the EtG test to allegedly establish that the plaintiff consumed an alcoholic beverage." *S The Wilson Court observed that Quisenberry addressed a question of first impression, and found its analysis to be well-reasoned. In doing so, the Wilson Court rejected the defendants' argument that they owed no duty to the plaintiff because they did the tests at the request of the California Board of Registered Nursing. 8 The Wilson Court rejected "Defendants' argument that promoting and conducting a flawed test is distinguishable from cases where laboratories mishandled test specimens or the reporting of test results, thereby negating their duty to plaintitT, is unpersuasive." Id. at • I. The Court went on to explicitly adopted the reasoning in Qllisenberry, and determined that the defendants owed a duty to the plaintiff, and that she, accordingly, stated a viable claim for negligence. Defendants, here, respond that the Qllisenberry. Wilson and Cleveland Courts ignored "existing California law on this very issue," and improperly found a duty. Specifically, Defendants point to Merrill v. Qllest Diagnostics. Inc .. 2003 WL 21490019 (CaI.CI.App. June 30, 2003) (unpublished). This Court docs not agree with Defendants that Merrill stands for the proposition that no duty exists to Plaintiffs in these circumstances. The facts in Merrill are substantially ditTerent from those here. There, an employer contracted a third party to perform drug testing. The third party subcontracted out portions of the work, namely specimen collection and testing. Specimen collection was performed by Integratest, and diagnostic laboratory services were performed by Quest Laboratories. The plaintitT tested positive, and asserted that the false positive was the result of collection mistakes on the part of Integrates I. The plaintitT asserted that Quest had a duty WESTLAW © 2016 Thomson Reuters. No claim 10 onginal U.S. Government Works. 4 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 to investigate collection mistakes on the part of Integratest. Therefore, the precise question before the Merrill Court was whether the laboratory (Quest) "negligently failed to investigate the alleged collection mistakes" made by another party (Integratest) that was retained to perfonn collection services. The Merrill Court declined 10 adopt such a duty. This resuh, however, does not indicate that no duty exists in the case before this Court. Here, there is no dispute as to whether the samples were collected or analyzed properly. Nor is there a question as whether a party was required to take the additional steps of investigating errors on the part of another party involved in the testing process. Instead, the question here is whether promoting and perfonning the EtG test in its current fonn is negligent. This Court does not find that the Merrill case compels a result different from that of Quisenberry. Wilson and Cleveland. This Court finds that California recognizes a duty of reasonable care owed from third-party administrators and testing laboratories to test subjects when promUlgating and administering tests to assess compliance with alcohol policies. 2. KANSAS *6 Plaintiffs assert that their negligence claim is cognizable under Kansas law, and rely on a state appellate court case, Berry v. Nat'l Med. Servs .. 41 Kan.App.2d 612, 205 P.3d 745 (2009)_ The Court agrees, and finds that Kansas recognizes a duty owed from Defendant laboratories and TPAs to Plaintiffs. The Berry Court, like the cases discussed in Section III.A.I, supra, involved facts nearly identical to those here. Plaintiff "assert[ed] that Compass and NMS were negligent in [e]stablishing cutoffs over which test results would be reported as positive that were arbitrary and scientifically unreliable and invalid." Berry, 41 Kan.App.2d at 615- 16, 205 P.3d 745. The issue before the Court, as here, was whether laboratories and TPAs owed a duty to a plaintiff who falsely tested positive for EtG. Id. at 614-16, 205 P.3d 745 ("Resolution of the negligence claim turns on whether the defendants owed a duty to plaintiff under the facts alleged"). The Court observed that [t]hree elements must be satisfied before a legal duty arises in Kansas. First, the plaintiff must be a foreseeable plaintiff, i.e., within the range of apprehension. Second, the probability of hann must be foreseeable. [T]he test of negligence ... is not whether the [defendant] should have anticipated the particular act from which the injury resuhed, but whether it should have foreseen the probability that injury might resuh .... An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in hann. Third, there must be no publie policy against imposing the claimed duty on the defendant. Id. at 6 16--18, 205 P .3d 745 (internal citations omitted). The Court found that the plaintiff easily satisfied the first two elements- she was a foreseeable plaintiff (as one of the test subjects), and the hann was foreseeable (a licensed professional automatically being denied the opportunity to continue in her profession). Further, the Court detennined that public policy considerations did not require that Defendants be shielded from liability. 9 As such, the Court "conclude[d] that under Kansas law Berry has alleged the breach of a recognizable duty, and she has pled a cause of action for which relief may be granted." Id. at 619,205 P.3d 745. 10 This Court agrees with the result and analysis in Berry. and detennines that Kansas law recognizes a duty owed from laboratories and TPAs to test subjects. 3. PENNSYLVANIA Plaintiffs assert that Pennsylvania recognizes a claim for negligence under the facts here, and rely, in particular, on Sharpe v. St. Luke's Hasp., 573 Pa. 90, 82 I A.2d 1215 (2003) (unpublished). The Sharpe case is not as precisely on point as the cases discussed above with respect to California and Kansas law. This Court, nonetheless, finds that the duty analysis conducted by the Supreme Court of Pennsylvania in Sharpe. indicates that Defendants owe Plaintiffs a duty of reasonable care to test subjects in promoting and applying alcohoVdrug tests. *7 The Sharpe Court considered whether a hospital, which was contracted by a third-party employer to collect samples for drug testing, owed a duty of care to test subjects in collecting and handling urine specimens for employment- related drug testing. II The Court conducted a duty analysis consisting of five factors: "(I) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the hann WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution." Id. at 96, 821 A.2d 1215. Regarding the first factor, the Court held that the relationship between the Hospital and the plaintiff justified the imposition of a duty of reasonable care upon the Hospital "despite the absence of a contract between the two parties." Id .. Specifically, the Court noted that the third-party test administrator (i.e., the hospital) "was aware of the purpose of the urine screening" and "should have realized that any negligence with respect to the handling of the specimen could harm [the plaintiffs] employment." [d. at 1219; see a/so Kagan v. Har/ey Davidson, Inc .. 2008 U.S. Dist. LEXIS 63932, at 58- 60, 2008 WL 3874824 (E.D.Pa. Aug. 19,2008). The Court went on to explain that "although privity of contract may not have existed, the plaintiITwas known to the defendant, and, when the defendant analyzed the plaintiffs specimen, it knew that negligent testing could wrongfully identify the plain tilT as a drug user." Id. (internal citation omitted). The Court also determined that the remaining factors weighed in favor of finding a duty on the part of the TPA. As to the second and third factors, the court explained that, "while the [TPA],s participation in the drug testing process certainly has social utility, the substantial harm deriving from inaccurate test results, which, in the context of [the plaintiffs] employment-related screening, allegedly took the form of a termination of gainful employment, would be a foreseeable consequence ofa breach of the duty ofreasonable care." Id. at 98. Regarding the fourth factor, the Court noted that the TPA was in the best position to ensure accurate results from the testing. Id. Finally, as to the last factor, the Court observed that "the increase in mandatory employment- related drug screening and the potential ramifications of false-positives create a substantial public interest in ensuring that the medical facilities involved in the testing exercise a reasonable degree of care to avoid erroneous test results occurring because of negligence." Id. at 99. The analysis and rationale applies equally here. Failure to act reasonably in developing and administering drug tests is likely to cause the same foreseeable results that the Court confronted in Sharpe. Defendants rely on Caplilo v. Compllchern Lab .. 1994 U.S. Dist. LEXIS 2191 (E.D.Pa. Mar. 21, I 994)(unpublished), for the proposition that a drug testing laboratory owes no duty to an employee being tested. This Court finds such reliance to be misplaced. As an initial matter, the decision was issued nearly a decade prior to the Supreme Court of Pennsylvania's decision in Sharpe. In any case, the facts before this Court are distinguishable. The plaintiff in Caplilo contended that the entity conducting the drug tests had a duty to inform the employer of the various non-controlled substances that, if consumed, could lead to a false positive. Here, in contrast, Plaintiffs claim that the threshold for a positive test result was ascertained and applied in a negligent fashion. The Copula decision, then, is not instructive to the case here. *8 Based on the duty analysis conducted in Sharpe, this Court finds that Plaintiffs have plead a cognizable claim for negligence under Pennsylvania law. 4. TEXAS PlaintiITs contend that there is no binding precedent in Texas as to whether a duty exists under the facts of this case, and urges this Court to find that a duty in light of the duty analyses set forth with regard to the other jurisdictions. See Section III.A .(1)-(3), sllpra. Defendants respond that in several analogous cases, Texas courts have declined to impose a duty. This Court agrees with Defendants. In SrnilhKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex.1995), an employer rescinded a job offer after a pre- employment drug test by Smith Kline revealed opiates in the plaintiff's urine. The plaintiff contended that the test result was caused by consumption of poppy seed muffins and not by use of any controlled substances. Id. at 348. The Court considered whether (I) SmithKline was negligent in failing to warn the plaintiff or her employer of potential causes for false positive results, and (2) whether the plaintiff could sustain a negligence claim against Smith Kline for allegedly overstating the accuracy of such tests to her employer. The SmithKline Court noted that no precedent existed for imposing a duty to warn of potential non-contraband causes for positive results, as sought by Plaintiff. Id. at 353. The Court also conducted its own duty analysis, weighing factors such as risk, foreseeability, likelihood of injury and the burden imposed on the defendant. !d. The Court declined to impose a duty and focused "exclusively on the relationship between the laboratory and the person tested." Id. at 351. PlaintiIT, additionally, asserted that SmithKline could be found negligent in "creat[ing] a benchmark above which a sample was labeled as 'positive' and below which a sample was labeled as 'negative' [because] SmithKline used its professional judgment in order to decide where that benchmark should be." Id. at 361 (1. Gammage, dissent). WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 Moreover, as here, the plaintiff noted that Smith Kline's "promotional literature advertised that a positive finding indicated, with virtual certainty, evidence of drug use." Id. The plaintiff argued that by making these statements the defendant negligently misrepresented the accuracy of the drug tests. Jd. at 354. Although the Court did not address the question on the merits, it indicated that the plaintiff would not have been able to show that a duty existed. See id. at 361 (noting that the defendant conclusively negate[d] at least one of the essential clements [Le., duty element] of ... the plaintiffs cause[ ] of action."). In short, the SmithKline Court implied that it would not find a duty arising from the testing laboratory to drug test subjects under the circumstances of that case. In Willis v. Roche Biomedical Laboratories. 61 F.3d 313, 316 (5th Cir.1995), the Fifth Circuit was required to make an "Erie prediction" as to whether a laboratory owes a duty to specimen donors to use due care in conducting drug tests under Texas law. See generally note 5, sllpra. Relying on the SmithKline decision of the Texas Supreme Court, the Firth Circuit found that Id. *9 [a]lthough the Supreme Court of Texas emphasized in SmithKline that it was not considering whether a drug testing laboratory has a duty to use reasonable care in perfonning tests and reporting results, we must consider what the court did say in determining what Texas law is. Recognizing the risks inherent in making an Erie "guess", we find that under current Texas law, Roche owed Willis no duty of reasonable care in testing his urine for drugs. More recently, in Mission Petro/ellm. 106 S.W.3d at 710, a plaintiff argued that the Court should "recogniz[e] a common law duty [on the part of the employer] to use reasonable care in collecting urine samples ... because an employee's need for protection from a flawed drug-test result outweighs the magnitude of the burden of guarding against this injury." Id The Texas Supreme Court found that the employer did not have a duty. The Court relied on the factors set forth in Greater HOllston Transportation Co. v. Phillips, 80 I S. W .2d 523, 525 (Tex.1990), and explained that courts consider "several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." Although the facts of Mission Petro/ellm are different from those here, the decision appears to indicate that Texas law does not recognize a duty of care owed from a third party testing laboratory to a test subject. Id. The Texas Supreme Court, nonetheless, observed that "Courts in other jurisdictions are split on whether a testing laboratory owes a duty to third-party employees when collecting or analyzing urine samples." Id. (collecting cases). t2 The Court noted that Texas Courts "reject a laboratory's duty of care, emphasizing generally that drug-testing companies have a direct relationship only with the employer and not the employee." Id.; see a/so Frank v. De/ta Airlines, Inc .. 2001 U.S. Dist. LEXIS 11341, at °2- °5 , 2001 WL 9J0386(N.D.Tex. Aug. 3, 2001), rev'd on other grollnds, 314 F.3d 195 (5th Cir.Tex.2002). In light of the existing case law in Texas, and the decision of the Texas Supreme Court in Mission Petro/ellm. this Court predicts that the Texas Supreme Court would decline to find a duty of care under the circumstances of this case. 5. INDIANA & OKLAHOMA Neither party extensively discusses the law of Indiana or Oklahoma to assess whether a duty of care would exist in the particular scenario before this Court. Generally, however, the law of the two states apply similar analysis to the jurisdictions discussed above. See Lowery v. Echostar Satellite Corp .. 2007 Okla. LEXIS 67, at °1 1- 13, 2007 WL 1475350 (noting the key considerations for courts in determining whether an individual is owed a duty of care; emphasizing the foreseeability factor); Ig/ehort v. Bd. of COllnly Comm'rs. 60 P.3d 497, 502 (Okla.2002) (same); Webb v. Jarvis, 575 N.E.2d 992, 995 (lnd.1991) (noting that courts consider "( I) the relationship between the parties; (2) the reasonable forseeability of harm to the person injured, and (3) public policy concerns" to determine whether a duty of care exists.); Stapinski v. Walsh Constmction Co .. 178 Ind.App. 623, 383 N.E.2d 473, 476 (1979), vacated on other grollnds, 272 Ind. 6,395 N.E.2d 1251 (1979). Accordingly, Plaintiffs urge that these Indiana and Oklahoma courts would reach a result similar to the courts in California, Kansas and Pennsylvania. See Sections III.A.( I )-(3), sllpra. This Court agrees, and finds the reasoning of the courts' in Quisenberry, Wi/son. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 Berry. and Sharpe to be compelling. This Court further notes these cases best reflect recent developments in the case law of courts confronted facts similar (or, indeed, completely analogous) to those here. This Court, therefore, finds that Defendants owe a duty of care to Plaintiffs under Indiana and Oklahoma law. See Sections III.A.( I )-(3), supra. *10 In conclusion, Defendants owe Plaintiffs a duty of reasonable care in promoting and administering alcohol tests under the laws of California, Kansas, Pennsylvania, Indiana and Oklahoma. The Court must decline to find such a duty under Texas law. B. QUASI-JUDICIAL PRIVILEGE Having decided that Defendants owe Plaintiffs a duty of care under certain states' tort law regimes, this Court must address Defendants' second contention- that Plaintiffs' claims cannot be maintained as a result of quasi-judicial privilege. Defendants argue that all communications from Defendants to the individual state medical boards are privileged, and therefore cannot be used to support Plaintiffs' claims. The case that Defendants most heavily rely upon is Brown v. Lab One. Inc .. 2007 U.S. Disl. LEXIS 98354, at ·3, 2007 WL 6199913 (D.Nev. July 10,2007), aiJ'd. 313 Fed. Appx. 952 (9th Cir.2009). In BrolVn. a Nevada District Court construing Texas law, considered Plaintill's tort claims against a laboratory for allegedly reporting a false positive test result to the state medical board. Id. The Court determined that all statements made to the Texas Medical Board were privileged, as it is a quasi-judicial body. Jd. at ·20. Therefore, the defendant laboratory's communications to the medical board were privileged and plaintiff was unable to use the communications as a basis for any tort claim. Id. The Court ruled that "[b ]ecause all of Plaintiffs claims are based on Defendants' communications to the Board or their testimony at the [in-court] criminal adjudication, the privilege bars all of Plaintill's claims." /d. This Court finds that BrolVn. and the application of judicial privilege more generally, does not operate as a complete bar to Plaintiffs' claims here. Even assuming that all of Defendants' statements to the medical review boards (or statements made in anticipation of the board proceedings) are privileged, Plaintiffs' claims could still proceed, because their claims are not based exclusively on such statements. Unlike Brown, Plaintiffs' claims here are based upon Defendants' actions and statements associated with the establishment and promotion of EtG testing that has lead to false positives. The conduct that led to the alleged harm in this case did not occur within the context of a quasi-judicial proceeding. Instead, Plaintiffs here allege that Defendants "published statements and claims promoting the absolute reliability and validity of EtG in detecting alcohol abuse, in promotional materials, on websites, in published articles and in statements by their sales personnel." Complaint ~ 48. For example, Plaintiff alleges that Quest falsely advertised that "EtG is not detectable in urine unless an alcoholic beverage has been consumed" and Compass asserted that EtG results of 500 nglmL conclusively proved intentional consumption of alcohol. Complaint ~~ 48- 58. Plaintiff alleges that Defendants made these statements (and a number of similar statements) directed to the efficacy of EtG testing. Many of such statements occurred prior to the initiation of any medical board proceeding and cannot, then, be privileged. *11 In BrolVn. the Court determined that as "all of Plaintiffs claims [we]re based on [the TPAs' and laboratories'] communications to the Board or their testimony at the criminal adjudication, the privilege bars all of Plaintill's claims, regardless of how Plaintiff has labeled the claims." 2007 U.S. Disl. LEX IS 98354, at ·20,2007 WL 6199913 (D.Nev. July 10,2007) (emphasis added). In contrast, here, Plaintiffs rely on communication that Defendants made outside the scope of medical board proceedings to support their negligence claim. This Court cannot conclude that the application of quasi- judicial immunity applies to Defendants' allegedly tortious conduct in its entirely. t3 Accordingly, Plaintiffs can state a cognizable claim of negligence against Defendants. IV. CONCLUSION For the reasons stated above, Defendants' motion to dismiss is denied as to the California, Kansas, Pennsylvania, Indiana and Oklahoma Plaintiffs, and Defendants' motion to dismiss is granted as to the Texas Plaintiffs. All CUatlons Not Reported in F.Supp.2d, 2009 WL 5033949 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 Footnotes 1 The class of Plaintiffs includes medical doctors, pharmacists, nurses and a physical therapist. See Plaintiffs' Complaint at mI 2-6. 2 Plaintiffs do not argue that the test samples were mishandled or that the test does not accurately detect the presence of EtG. 3 For example, Plaintiffs allege that, contrary to scientific evidence, Quest falsely advertised that "EtG is not detectable in urine unless an alcoholic beverage has been consumed," Plaintiffs assert that NMS was negligent In claiming that "any value above 250 ng/mL indicates alcohol consumption" and that the test was "validat[ed]." Mostlmportanlly, Plaintiff allege that the two testing labs were responsible for selting unreliable EtG cut-off levels for the alcohol tests. 4 As a federal district court silting in diversity, this Court appties the choice of law rules of New Jersey, the forum state. See Klaxon Co. v. StentorElec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). As explained In this Court's choice of law analysis in Garlick v. Quest Diagnostics, Inc., 2007 U.S. Dist. LEXIS 95160, at '6-10, 2007 WL 4592276 (D.N.J. Dec. 28, 2007), the Court will apply the state law of each Plaintiffs home state. The parties do not dispute that the substantive law of Plaintiffs' home states should be applied. 5 Where there is no guidance in the state's tort law regime regarding whether Plaintiffs' cause of action would be recognized under the facts of this case, the Court must make an "Erie guess" as to whether a potential cause of action exists. See, e.g., Highlands Ins. Co. v. Hobbs Group, LLC, 373 F.3d 347, 351 (3d Clr.2004) (noting that a where state's high court had not squarely addressed whether a legal duty exists under the particular circumstances of the case, under Erie principles [federal courts applying state law] must predict whether that court would recognize such a duty under the circumstances presented"). In dOing so, "the federal court may consider a wide range of reliable sources, Including relevant state precedents, analogous decisions and reasoned dicta, as well as the policies and doctrinal trends Informing and emerging from those decisions." Id. at351 (internal citations omilted). 6 The two defendants are also defendants in the action before this Court-Quest and Compass, a laboratory and TPA, repectively. 7 Testing laboratories and TPAs may be found negligent for mishandling an individual's specimen, as failure to take reasonable care can result In erroneous results causing harm to test subjects. Id. at 1230. By the same rationale, according to the QuIsenberry Court laboratories and TPAs may also be liable for administering a test which does not accurately Indicate that a test subject violated of an alcohol abstinence policy. 8 The Wilson Court noted that "Defendants' argument that promoting and conducting a flawed testis distinguishable from cases where laboratories mishandled test specimens or the reporting oftest results, thereby negating their duty to plaintiff, is unpersuasive," 9 The Court explained: [T]he defendants solicited business from the Board to test nurses whose licenses were at risk because of claims of alcohol abuse. The defendants could cleariy foresee that a positive test result could result in the loss of the test subject's license. The exact harm Berry claims to have experienced here was a foreseeable consequence of negligence in the testing and reporting of the test results to the Board. [T]here is no public policy against Imposing liability. We defer to our legislature In establishing public policy and find no expression by our legislature that urinanalysis providers are exempt from liability for their negligence In providing faulty results or interpretations. Berry, 41 Kan.App.2d at618, 205 P.3d 745. 10 Defendants do not seriously altemptto distinguish Berry from the case here. Instead, in their Reply Brief, they assert that a petition for review has been filed, and they "anticipate" that the decision will be overturned. This Court, however, finds the Berry Court's reasoning to be sounds, and note that the decision is In accord with the California law discussed above. 11 Here, unlike the Quisenberry and Berry cases discussed above, the plaintiff asserted that the defendant was negligent in the handling and care of her specimen-not that the drug test itself was Improper. Nonetheless, the case is substantially analogous to the case before this Court, and was issued by the highest court in Pennsylvania. This Court, then, heavily relies on the Sharpe Court's duty analysis in making an Erie prediction as to the recognition of Plaintiffs case under Pennsylvania law. 12 The facts of Mission Petroleum are substantially different from those here, and the Court's application of the Phillips risk! utility balancing test would necessarily be different under the facts of this case. This fact notwithstanding, the Mission Petroleum Court's statement regarding the current state of Texas duty of care law, albeit In dicta, appears to indicate that the Texas Supreme Court would not recognize a duty here. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 Garlick v. Quest Diagnostics, Inc., Not Reported In F.Supp.2d (2009) 2009 WL 5033949 13 Defendanls' claim of privilege as 10 particular evidence-i.e .. certain slalemenls made la, or In anticipation of, the medical board proceedings·need nol be decided here. The Court. at this time, only observes Ihat many of Defendants' allegedly negligenl actions are nol in any way relaled to the medical board proceedings. Such actions cannol be construed as quasi-judicial in nalure. and Iherefore are not privileged. End of Document 0 2016 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2016 Thomson Reulers. No claim to original U.S. Government Works. 10 Goodyear Tire & Rubber Co. v. Klrk's Tire & Auto ...• Not Reported In ... 2005 WL 550940 KeyCile Yellow Flag - Negative Treatment Judgment Amended by Goodyear Tire & Rubber Co. v. Kirk's Tire & Auio Servicecenler of Haverstrnw, Inc.. S.D.N.Y., January 3, 2006 2005 WL 550940 Only the Westlaw citation is currently available. United States District Court, S.D. New York. THE GOODYEAR TIRE & RUBBER COMPANY, Plaintiff, v. KIRK'S TIRE & AUTO SERVICECENTER OF HAVERSTRAW, INC., Defendant. No. 02 Civ. 0504(RCC). I March 9, 2005· OPINION & ORDER CASEY,J. "I Plaintiff Goodyear Tire & Rubber Company ("Goodyear" or "Plaintifl") brings this suit for negligence and breach of contract against its sublessee Defendant Kirk's Tire & Auto Servicecenter of Haverstraw, Inc. ("Kirk's" or "Defendant"). Both parties have moved for summary judgment. For the reasons explained herein Plaintifl's motion is granted and Defendant's motion is denied. I. Background Unless otherwise noted, the following facts arc not in dispute. Goodyear leased the property located at II Route 9W, West Haverstraw, New York ("the Property"), from Allen Frost and the Estate of Seymour Frost (the "Frost-Goodyear Lease"). Def. 56.1 Statement (hereinafter "Def. 56.1") ~ I; see also Frost-Goodyear Lease, at Delguyd Aff. Ex. I. Thereafter, Goodyear subleased the Property to Kirk's (the "Goodyear- Kirk's Sublease"). Complaint ~ 5; see also Goodyear-Kirk's Sublease, at Delguyd Aff. Ex. 2. At all relevant times, Kirk's operated a tire and motor vehicle service center on the Property. Def. 56.1 ~ 8. On January 23, 1999, the building on the Property was completely destroyed by fire. Def. 56.1 ~ 12. Plaintiff alleges an employee of Kirk's caused the fire by draining fuel from a vehicle into an open container. Complaint ~ II. The Goodyear-Kirk's Sublease provided: Sublessee [Kirk's] hereby covenants and agrees to indemnify, save and hold Sublessor [Goodyear] and the premises free, clear and harmless from any and all liability, loss, costs, charges, penalties, obligations, expenses, attorneys' fees, litigation, jUdgments, damages, claims and demands of any kind whatsoever in connection with, arising out of or by reason orany violation of law, ordinance or regulation by Sublessee, its agents, employees, servants .... Goodyear-Kirk's Sublease ~ 13. The Sublease also explained that the "Sublessor [Goodyear] is not the owner of the premises but has possession by virtue of its Basic Lease, dated August 5, 1965, a copy of which Basic Lease will be delivered to Sublessee upon request ...... 56.1 ~ 9 (quoting Goodyear-Kirk's Sublease ~ I). The Sublease further stated: The applicable terms and conditions of such Basic Lease shall be binding on Sublessee in the same manner and with like effect as if fully set forth herein, it shall be the intention of the parties hereto that Sublessor shall be reimbursed by Sublessee for all costs and expenses incurred by Sublessor with respect to such Basic Lease (including, but not limited to, real estate taxes, assessments and insurance costs). /d. ~ 9 (quoting Goodyear-Kirk's Sublease, I). Accordingly, in addition to rent, Kirk's owed Goodyear "[a] monthly charge representing one-twelfth (1I12th) of estimated annual cost of Fire and Extended Coverage Insurance on said premises." Goodyear-Kirk's Sublease, 2. Goodyear contends that nothing in the Sublease indicates this charge was an insumnce premium for a fire insurance policy specifically covering the Property. Pltf. Response to Der. 56.1 ~ 5. "2 With respect to its insurance of the Property, pursuant to the Frost-Goodyear Lease, Goodyear contracted: WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Goodyear Tire & Rubber Co. v. Klrk's Tire & Auto ...• Not Reported In ... 2005 WL 550940 at its expense. [to] carry Fire and Extended Coverage Insurance on the demised premises to the full replacement value thereof, with proceeds payable to Lessor [Frost]. Lessee [Goodyear], and! or any mortgagee ... as their interests appear and Lessee [Goodyear] will, upon request, furnish to Lessor [Frost] a Certificate showing the issuance of such coverage. Frost·Goodyear Lease 1 6. Accordingly, Goodyear obtained a certificate of insurance demonstrating that Allianz Insurance Company hod issued a policy ("Allianz Fire & Extended Coverage Policy") to Goodyear to cover the "full replacement value" of the Property, with a "nil" deductible. Def. 56.1 ~ 6 (quoting Certificate of Insurance, at Sweetman Apr. 9, 2004 Aff. Ex. B); see also Carr. Decl. Ex. 4 (Allionz Fire & Extended Coverage Policy declaration page demonstrating $1.00 premium for three year period and $1,000,000 policy limit). Goodyear submits that because it leases thousands of properties in the United States and abroad, it is most efficient to insure them all under one global policy. See Eldrich Carr, Goodyear Global Risk Manager, Decl. ("Carr.Decl.") 1 4; Carr Decl. Ex. 3 (Allianz Global Policy declaration page indicating $3,449,502 premium for one year period); see also Def. 56.1 1 15; Pltf. Response to Def. 56.1 ~ 8. Goodyear claims that the Allianz Fire and Extended Coverage Policy it secured pursuant to the Frost·Goodyear Lease was a "fronting" policy. Carr Decl. ~ 6. While on its face it provided $1 million in coverage for a $1.00 premium, Goodyear contends that when it is interpreted as pan of Goodyear's overall insurance program it should be read as "exist[ing] primarily for the purpose of issuing certificates [of insurance]." Id. "Allianz's exposure [under the Fire and Extended Coverage Policy] was fully reinsured under a reinsurance agreement (the "Reinsurance Agreement") between Allianz and Goodyear's wholly·owned insurance subsidiary, Wingfoot Insurance Company." Id ~ 8; see also Carr Decl. Ex.6 (Reinsurance Agreement). Pursuant to the Reinsurance Agreement, Wingfoot would be responsible for any of Allionz's exposure based on policies it issued to Goodyear, and Wingfoot's obligation to Allionz was, in tum, guaranteed by Goodyear. Carr Decl. ~~ 9·11; see also Carr Decl. Ex. 8 (Guaranty Agreement). Goodyear contends any claim it submitted under the Allianz Fire and Extended Coverage Policy would have triggered Wingfoot's obligation to Allianz and Goodyear's guaranty of Wingfoot. such that "Goodyear did not and would not have submitted a claim to Allianz under the Fire and Extended Coverage Policy." Carr Decl. ~ 12; see also Angelo Natoli Dep. Tr. 64:20·65:6; 66: 1·66:9 (Goodyear's Risk Manager testifying that pursuant to the Allianz Fire and Extended Coverage Policy, Allianz would recover the amount it paid on a claim from Goodyear), at Sweetman Apr. 9, 2004 Aff. Ex. G; see also Natoli Dep. Tr. 67: 1·5; 13·20 (explaining Goodyear paid Frost directly to avoid the "whole pay, get back, pay, get back regimen"), at Sweetman Apr. 9, 2004 Ex. H. *3 The net effect of Goodyear's insurance program was that it did not have any coverage for the first $250,000 in losses and was covered for only 50% of the losses over $250.000. Carr Decl. ~ 17; see also Def. 56.1 ~ 15. Goodyear claims that it incurred a total of$507,466.89 in costs for replacement of the property, t $128,733.45 of which was covered by insurance. Accordingly, Goodyear seeks recovery from Kirk's of the $378,733.45 balance. II. Discussion A. Summary Judgment Standard Summary judgment is appropriate only where "the pleadings, depositions t answers to interrogatories. and admissions on file. together with the affidavits. if any. show that there is no genuine issue as to any material fact and that the moving pony is entitled to a judgment as a matter of low." Fed.R.Civ.P. 56(c); see also Security Ins. Co. oj Hartford v. Old Dominion Freight Line Inc .. 391 F.3d 77, 82 (2d Cir.2004). The party moving for summary judgment bears the burden of demonstrating that no genuine factual dispute exists. Old Dominion. 391 F.3d at 83. The coun must resolve all ambiguities and draw all possible factual inferences in favor of the pony opposing summary judgment. Anderson v. Liberty Lobby. Ille .. 477 U.S. 242, 250 (1986). "If as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing pony, summary judgment is improper." Gumma v. Vii/age oJDepew. 75 F.3d 98. 107 (2d Cir.l996). B. Negligence Claim Goodyear moves for summary judgment on its claim that on employee of Kirk's negligently caused the fire that destroyed the building on the Property. Kirk's argues that WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Goodyear Tire & Rubber Co. v. Klrk's Tire & Auto ...• Not Reported In ... 2005 WL 550940 Goodyear's negligence claim must fail because its sole legal duty to Goodyear arose out of a contract. "It is a well- established principle that a simple breach of contract is not to be considered a tort IIl1less a legal dllty independent of the contract itself Iras been violated . .. Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382. 389 (1987) (emphasis added); cf Int'l Ore & Fertilizer Corp. v. SGS Control Servs .. Inc .. 38 F.3d 1279, 1283-84 (2d Cir.1994) (finding defendant's duties to plaintiff arose solely from their contractual relationship and dismissing negligence claim). Here. however. Kirk's owed Goodyear a duty independent from the Sublease. i.e., a duty to comply with the New York State Uniform Fire Prevention and Building Code and Occupational Safety and Health Act ("OSHA") regulations. As an automotive service station in New York, Kirk's was required to comply with New York Uniform Fire Prevention and Building Code as explained in the governing "reference standard." See 9 N.Y.C.R .R. § 1250.1 (defining "reference standard" as U o specification, codc, rule, guide or procedure ... recognized and accepted as authoritative" and noting "compliance with applicable provisions of a reference standard shall constitute compliance with the code"); 9 N.Y.C.R.R. § 1250.3 (listing reference standard 47-2 NFPA Bulletin 30A as governing automotive and marine service stations). The reference standard requires automotive service stations to store gasoline only in closed containers. See NFPA Bulletin 30A. at § 2-3.1 (" "[N]o Class I liquids shall be stored within any service station building except in closed containers ...... ). at Loomba Decl. Ex. 17. Additionally. OSHA regulations govern the storage and transport of gasoline. Most notably, the regulations explain that Class I liquids, including gasoline. may be used only where there are no open flames or other sources of ignition within the possible path of vapor tmvel. See 29 e.F.R. § 1910.106(e)(2)(iv)(c); see also 29 e.F.R. § 1910.106(0)(3) (defining automotive service station); 29 e.F.R. § 1910.106(g)(I)(v) (outlining requirements for portable containers holding Class I liquids). *4 The parties do not contest that "the fire was caused by an employee and/or agent of Kirk's who was draining fuel from a vehicle into an open container." Complaint ~ II; see also Answer ~ 7 (admitting pamgraph II of Complaint). Witnesses for both Goodyear and Kirk's testified that the Kirk's employee drained the gasoline near an open flame of a water heater. See Bruce Guttenplan Dep. 19: 16-21, at Loomba Dec!. Ex. 16 ("Our insured [Kirk's] was making a repair involving the draining of gasoline from the gas tank. And apparently in draining the gasoline the fumes reached some ignition source possibly hot water heater which ignited the vapors and caused the fire."); W.e. Schweizer Report at p. 8. at Loomba Reply Decl. Ex. 18 ("Due to statements by the occupants (workmen) in the building, it is this firm's opinion that the most probable source of ignition was the pilot light of the hot water heater located in this garage area."); Eammon Kirk Dep. 100:14-24, at Loomba Reply Dec!. Ex. 19 (testifying to his understanding that the hot water heater ignited the gasoline fumes to cause the fire). Accordingly. there can be no dispute that a Kirk's employee violated provisions of the New York Uniform Fire Prevention Code and OSHA regulations. and thereby negligently caused the fire. See NFPA Bulletin 30A. at § 2-3.1 (proscribing the storage of gasoline in open containers); 29 C.F.R. § 1910.106(e)(2)(iv)(c) (proscribing the draining of gasoline near open flames); see also Battista v. United States, 889 F.Supp. 716, 721-22 (S.D.N.Y.1994) (finding defendant was negligent based on its violation of OSHA regulations). Summary judgment on the issue of Kirk's negligence is thereFore granted in favor of Goodyear. C. Contract Claim Goodyear contends that summary judgment in its favor on its contract claim is appropriate because Kirk's agreed to indemnity it for losses caused by its employees' violations of laws, ordinances, or regulations. Goodyear-Kirk's Sublease , 13. Kirk's disagrees and argues that summary judgment in its favor is appropriate pursuant to the terms of the Sublease, which provided Kirk's was not obligated to repair the Property if it was damaged by fire. See Kirk's-Goodyear Sublease, 14. Additionally, Kirk's claims it should be allowed to enjoy the benefits of the insurance covemge it paid for and not be bound by Goodyear's decision to pay Frost directly instead of submitting the claim to Allianz. The Second Circuit has instructed that" '[i]f the court finds that the contract is not ambiguous it should assign the plain and ordinary meaning to each term and interpret the contmct without the aid of extrinsic evidence' and it may then award summary judgment." Int'I Mliiti/oods Corp. v. Commercial Union Ins. Co .. 309 F.3d 76. 83 (2d Cir.2002) (quoting Alexander & Alexallder Servs. Inc. v. These Certain Undenvriters at Lloyd's London, 136 F.3d 82, 86 (2d Cir.1998». The contract provision in question here is straightforward. Kirk's agreed to indemnity Goodyear for losses caused by its employees' violations of "law, ordinance or regUlation." Goodyear-Kirk's Sublease, 13. As explained above. there is no question that a Kirk's employee draining gasoline into an open container violated New York WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Goodyear Tire & Rubber Co. v. Klrk's TIre & Auto .... Not Reported In ... 2005 WL 550940 Code provisions and federal OSHA regulations. Therefore, pursuant to the clear terms of the Sublease, Kirk's must indemnify Goodyear for its losses and obligations. Id. *5 Kirk's claims it did not know the details of Goodyear's insurance program prior to this litigation and assumed the monthly insurance payments it made compensated Goodyear for an insurance policy on the Property. Kirk's belief that Goodyear was not adequately forthcoming about its insurance program does not create an issue of material fact here. Although the elements of Goodyear's self-described insurance program are somewhat complicated, see Carr Decl. ~~ 6-17, there is no dispute that the net effect of this program caused Goodyear to pay Frost the full replacement value, see Carr Decl. Ex 12 (checks from Goodyear payable to Frost); see also Def. 56.1 ~ 15 (acknowledging Goodyear' insurance program). Kirk's does not dispute the amount Goodyear expended in that regard. See Carr Decl. Ex 12 (checks from Goodyear payable to Frost); Carr Decl. Ex. 13 (check and receipts for Goodyear's costs). Further, Kirk's does not dispute that, pursuant to Goodyear's insurance program, only $127,733.45 of the full replacement value would be covered by Goodyear's insurance. Def. 56.1 ~ 15. Accordingly, the Court grants summary judgment in Goodyear's favor in the amount of $378,733.45 and tinds it unnecessary to address Goodyear's remaining arguments. In reaching its conclusion, the Court dispenses with Kirk's argument that it cannot be liable because it was not obligated to repair the Property if it was destroyed by tire. Paragraph fourteen of the Sublease states, in part, that "[ e]xcept to the extent the Basic Lessor assumes such obligations, Sublessee will ... surrender the premises to Sublessor in as good condition and repair as when received, ... damage by ... fire ... excepted." Goodyear-Kirk's Sublease ~ 14. Contrary to Kirk's assertions, "a contract will not be construed to exempt a party from liability for his negligent acts unless such intention is expressed in unequivocal tenns," Galante v. Hathaway Footnotes Bakeries. 6 A.D. 142, 147 (4 th Dep't 1958) (construing similar repair provision in lease and dismissing defendant's argument that the provision immunized him from liability for damages arising out of tire he caused); see also Jaylynn. Inc. v. Star Supermarkets. IlIc .. 348 N.Y.S.2d 85, 87 (1973) (same); N.Y. Jur. Contracts § 274 (2005) (same). Here, the Sublease expressly makes Kirk's liable for its acts in violation of code or regulation. See Goodyear-Kirk's Sublease ~ 13; see also Doctors Assocs. v. Distajo. 66 F.3d 438, 452 (2d Cir.l995) (noting contracts must be read as a whole) (citing Restatement (Second) of Contracts § 202(2». Accordingly, the repair provision of paragraph fourteen neither precludes summary judgment in Goodyear's favor nor dictate summary judgment in Kirk's favor. Additionally, contrary to Kirk's assertions the Court does not tind that Goodyear paid Frost as a volunteer. Pursuant to the Frost-Goodyear Lease, Goodyear was contractually obligated to insure the Property for its fully replacement value. Frost-Goodyear Lease ~ 6. To the extent the Allianz Fire and Extended Coverage Policy did not cover that amount, Goodyear was responsible for the difference. Ptf. Response to Def. 56.1 ~ 5. III. Conclusion *6 For the reasons explained above, Plaintiffs motion for summary judgment is granted and Defendant's motion for summary judgment is denied. The Clerk of the Court is to enter judgment in Plaintiffs favor in the amount of $378,733.45. Thereafter, the Clerk is asked to close the case. So Ordered: All Citations Not Reported in F.Supp.2d, 2005 WL 550940 1 Goodyear paid Frost $503.076.05. the replacement value of the Properly, pursuant to the terms of the Frost-Goodyear Lease. Carr Decl. ~ 18. Goodyear Incurred additional costs related to the fire In the amount of $4.390.84. Carr Decl. Ex. 13. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2016 Thomson Reulers. No claim to original U.S. Government Works. 4 Page I LexisNexis® Cara Muhlhahn, Plaintiff, against Andrew Goldman and NEW YORK MEDIA LLC, Defendants. 102846/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY 32 Misc. 3d IU2(A); 938 N. y'S.2,1 228; 2011 N. Y. Mise. LEXIS 4376; 2011 NY Slip Op SI683(U) August 18,2011, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS. PUBLISHED IN TABLE FORMAT IN THE NEW YORK SUPPLEMENT. SUBSEQUENT HISTORY: As Corrected Sep· tember 28, 20 II. Reversed by, Motion granted by, Comploint dismissed at Muhlhalm v. Goldman. 93 A.D.3d .f18, 939 N. Y.S.2d .f20, 20/2 N. r. App. Div. LEXIS IS08 (N.r. App. Div. lSI Dep'l, Mar. 1.2011) PRIOR HISTORY: Muhlhahn v. Goldman, 2011 N. r. Misc. LEXIS 4315 (N. r. Sup. Ct., Aug. 18, lOll) HEADNOTES [00228] der--Opinions. [0 I 242A] Libel and Sian- COUNSEL: [0.01] For Defendonts Andrew Goldman and New York Media, LLC: Miller Korzenik Sommers LLP, New York, New York. For Plaintiff Cara Muhlhahn: Catafago Law Firm, P.C., New York, New York. JUDGES: Hon. Joan M. Kenney, J. OPINION BY: Joan M. Kenney OPINION Joan M. Kenney, J. In this pre-answer motion to dismiss an action for defamation, defendants Andrew Goldman (Goldman) and New York Media, LLC (NYM) seek an Order dis- missing the complaint, pursuant to CPLR 3211 (a) (I) ond (a) (7). Alternatively, movants seek an Order con- verting this application, pursuant to CPLR 3211 (c), to a motion seeking dispostive relief. FACTUAL & PROCEDURAL BACKGROUND Goldman is contributing editor of NYM and the au- thor of an article entitled, Exlreme Birlh, published in NYM in or about March of 2009 (the Article) (see Ex. "A" annexed to Complaint, Ex. "A"). The Article fea- tures plaintiff Cara Muhlhahn (Muhlhahn), who is a cer- tified nurse midwife specializing in home birth labor and delivery. Prior to the publication of the Article, Muhlhahn was featured in a documentary entitled The Business of Being Born (BOBB). BOBB documents, among others, Muhlhahn and her practice as a home birth midwife, while examining the broader debate surrounding at-home births, [0··2] hospital births, and the practice of mid- wifery generally. After BOBB was released, Muhlhahn also authored a memoir entitled, Labor of Love. The Ar- ticle quotes portions of the memoir and makes reference to BOBB. Muhlhahn alleges in the summons and complaint that thirteen statements published in the Article (herein- after referred to as [Challenged Statements No.I-13]) form the basis of her claim for defamation against de- fendants (see complaint, Ex. uA" attached to notice of motion 11 II). Muhlhahn alleges that Challenged State- ments # 1-13 are not only "false and defamatory" (see Page 2 32 Misc. 3d I 242(A), 0; 938 N.Y.S.2d 228, .. ; 2011 N.Y. Misc. LEXIS 4376, 0 .. ; 2011 NY Slip Op 51683(U) complaint 1 II), but are also "libelous per so and dispar- aged [Muhlhahn) in her trade, business and profession [sic) ... " (See complaint tiS.) Additionally, Muhlhahn alleges that these statements were made "with actual malice andlor a reckless disregard for the truth" (see complaint ~ 14). Defendants published the Article following Gold- man's interview of Muhlhahn and others. The print ver- sion of the Article includes the subtitle: "The fearless- some say too fearless- new leader of the home-birth movement." [Challenged Statement #1) In its online publication, the Article includes the metatag: "Is Midwife Cara Muhlhahn [0003) Too Fearless in Her Home-Birth Advocacy?" [Challenged Statement #2) The Article identifies Muhlhahn as "the most visible proselytizer of the home-birth movement." According to the Article, BOBB "presents a horrifically plausible por- trayal of a hospital childbirth system gone insane, of la- bor turned into a medical pathology ... " and points to the "shocking rise in C-sections" which "has done noth- ing to improve infant or maternal-mortality statistics." The Article then notes: "More than anything else, BOBB de-radicalized homebirth, conflating it with garden-variety natural childbirth and allowing Muhlhahn, largely unchallenged, to argue for its safety." [Challenged Statement #3) The Article describes Muhlhahn as the "eminently reasonable alternative" to hospital births. However, the Article also states that Muhlhahn does not practice like a "typical" midwife and that Muhlhahn's "[p)ersonal ex- perience has led her to dismiss many of what she calls the myths' that are taught in school as the bedrock of safe practice," The Article also states that: "[Muhlhahn) regularly does vaginal births after C-Section at home and has even home delivered the riskiest births, breaches, and twins." [Challenged [0··4) Statement #4) In the Article, Goldman describes his personal expe- rience in recalling how he and his newly pregnant wife considered where to give birth to their son. After his wife was diagnosed with lupus, which Goldman asserts is considered "high risk" in obstetrical tenns, Goldman recalls navigating the "enonnous and impersonal hospital practice" where, "without the chart the doctor wouldn't have known whether we were there to have a baby or take her lunch order." In contrast, Goldman describes an initial consultation between Muhlhahn, Goldman, and his wife, in Muhlhahn's home office. Goldman was "touched by her interest and impressed by the amount of time she was willing to devote to our case," and states his belief that "Muhlhahn was different." "[B)ut I was concerned by [Muhlhahn's) lack of ex- perience with lupus and mystified by her reaction when Robin brought up the idea of delivering with a highly recommended midwife who delivers the babies of high-risk patients at St. Vincent's. Muhlhahn rolled her eyes, 'You might as well go with an obstetrician: she scoffed." [Challenged Statement #5) After a brief description of Muhlhahn's philosophy of home birth versus the experience of [0··5) using a hospital, the Article then describes the experience of Ms. Sandra Garcia (Garcia) and her husband, Mr. Jeff Wise (Wise), under Muhlhahn's care: "But labor is an unpredictable thing, and sometimes the experience is more nightmarish than poetic. Muhlhahn's patient Sandra Garcia was one week overdue when her water finally broke on a Sunday night in early November. She labored that night and through the next day assisted by her husband, Jeff Wise, and her doula, a former NYU postpartum nurse who was now working for Muhlhahn. (Muhlhahn, busy with another labor, ap- peared only sporadically.)" [Challenged Statement #6]. The Article describes Garcia's 72-hour labor. After the birthing doula attempted prematurely to deliver Gar- cia's baby and possibly increased Garcia's risk of infec- tion: "The doula had somehow misjudged her progression. Still, Muhlhahn wasn't concerned." [Challenged State- ment #7) After nearly 72 hours of labor, the Article describes the situation as it was recounted by Wise,: liThe doula had gone home to rest. It was getting dark. They had no instrument to check the baby's heart rate. His wife's face was pallid, her knees and elbows raw from supporting her weight during the [···6) contractions. The apart- ment reeked of vomit and urine from her catheter." The Article also quotes Wise as stating: " How long is too long for a woman to be in labor?' Wise demanded to know when Muhlhahn finally re- turned to the apartment that night. Never,' Muhlhahn replied flatly." [Challenged Statement #8) After reiterating Muhlhahn's philosophy which is to "[t]rust the wisdom of the body to send the baby out when itls rcady," the Ankle describes Muhlhahn's even· tual acquiescence to send Garcia to St. Vincent's Hospital (St. Vincent's). The Article quotes Garcia as saying, "It was a feeling of, Oh my God. Here are people in their white lab coats who know what they're doing, and there's Page 3 J2 Misc. 3d 1242(A), '; 938 N.Y.S.2d 228, "; 2011 N.Y. Misc. LEXIS 4376, "'; 2011 NY Slip Op SI683(U) equipment and medicine here.'" Eventually, Garcia's ba- by was delivered by C-section. The Article then describes the nature of Muhlhahn's relationship with St. Vincent's hospital. In contrast to Muhlhahn's claim that 51. Vincent's is her "backup hos- pital," the Article quotes: " St. Vincents is [Muhlhahn's] dump,' says one for- mer obstetrics resident who's treated Muhlhahn's trans- fers. She could say any hospital is her backup, because no hospital is ever going to deny a woman care. She'd bring her patients ["'7] in, holding their hands, find out we were going to have to do 8 section, and then she's out the door. To me, that's a dump.' Other doctors on the floor have referred to her transferred patients as train wrecks'" [Challenged Statement #9]. On the issue of hospital privileges to midwives by St. Vincent's, the Article states: "Muhlhahn claims that she could have privileges at St. Vincent's as well, but she prefers not to be encum- bered by the hospital's restrictions. I actually like legiti- macy. I don't enjoy being an outlaw,' she says. [Chal- lenged Statement # I 0] This statement is immediately followed by: "But there are ways in which she has made herself an outlaw of sorts- by not canying malpractice insurance, for instance. I think she's dangerous,' says a member of the obstetrics staff at St. Vincent's. You need to be ac- countable. Something bad is going to happen with her approach to management. Bad things happen to all of us'" [Challenged Statement #11] The Article also claims: "Though it is required by law for every midwife in New York to have one, Muhlhahn also doesn't have a signed practice agreement with a physician, a document that outlines the parameters of a midwife's care and pro- tocols ['''8] under which a mother would automati- cally risk out' of home birth" [Challenged Statement #12] . The Article describes the impact of BOBB on Muhlhahn's practice: ''Thanks to BOBB, the last 24 months have been the busiest in the dozen years since she first set up a solo practice in the bedroom of her Stuy Town apartment" and concludes: "Recently, Muhlhahn has more than tripled the number of births she takes on, to ten a month" [Chal- lenged Statement # 13] ARGUMENTS Defendants argue that this motion to dismiss should be granted and the complaint dismissed because Chal- lenged Statements # I - 13 are (I) not defamatory as a matter of law as they are either (I) not capable of defam- atory meaning, (ii) non-actionable opinion, andlor (iii) true statements, admitted by Muhlhahn herself, or (iv) a "fair index" of the Article; and 2) barred by the "single instance rule." Plaintiff contends that the instant motion should be denied because: I) Muhlhahn has pled a valid claim for libel per se; 2) it is improper for this Court to consider any of defendants' exhibits and the Goldman affidavit as they constitute inadmissible documentary evidence; and 3) converting the instant motion to a motion for summary judgment ['''9] is procedurally premature since dis- covery in this action is yet to begin. DISCUSSION The standards of review on a motion to dismiss un- der either CPLR 3211 (a) (I) or (a) (7) are well-settled. "[nhe pleading is to be afforded a "liberal construction" (CPLR 3026). Where the motion to dismiss is brought under CPLR 3211 (a) (I) based on documentary evi- dence, "[the motion] may be appropriately granted only where the documentary evidence utterly refutes plain- titl's factual allegations, conclusively establishing a de- fense as a matter of law" (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314.316. 774 N.E.Zd 1190, 746 N. Y.S.2d 858 {2002} citing Leon v Marline:, 8~ NYU 83, 88, 638 N.E.2d 511, 614 N. Y.S.2d 972 {19U}}. Further more, "to be considered documentary, the evidence in- terposed must be unambiguous and of undisputed au- thenticity" (Fontanella v John Doe, 73 AD3d 78, 84-86, 898 N.Y.S.2d 569 (1010j). In the procedural context of a motion to dismiss brought under CPLR 3111 (a) (7) for failure to state a claim, "[the court must] accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martine:, 84 NY2d 83, 87-88, 638 N.E.2d 511, 614 N.Y.S.2d 972 {1994}}. ["'10] "[I]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the com- plaint must be deemed to sufficiently state a cause of action (see O'Loughlin v Patrolmen's Benev. Ass'n of City of New York, Inc .• 178AD2d 117,117, 576N.y'S.2d 858 {1st Dept 1991} quoting Silsdoifv Levine, .19 NY2d 8. 12, ~49 N.E.ld 716,462 N. Y.S.2d 822 {/983j). At the outset, this Court must address the admissi- bility of the evidence under either a CPLR 3111 (a) (I) or (a) (7) standard which have been submitted by de- fendants in support of the instant motion. Namely, de- fendants attach the affidavit of Goldman (Goldman affi- davit) (affidavit of Andrew Goldman, dated August 12, Page 4 32 Misc. 3d 1242(A), '; 938 N.Y.S.2d 228, .. ; 2011 N.Y. Misc. LEXIS 4376, , .. ; 2011 NY Slip Op 51683(U) 20 I 0, attached to notice of motion). Defendants also at- tach as exhibits to the Goldman affidavit thirteen (13) "highlighted" or clipped audio and video interviews be- tween Goldman and inter alia Muhlhahn (interview clips) (see Ex. "E" attached to notice of motion), as well as excerpts 1T0m Muhlhahn's book, "Labor of Love" ("La- bor of Love" excerpts) (see Ex. "0" attached to notice of motion). According to the Goldman affidavit, both the interview clips and "Labor of Love" excerpts are true and accurate (see Goldman affidavit 1 9, ~ 13, ~ 7). Defend- ants ['''II] also attach the full-length version of BOBB (see Ex. "F" attached to notice of motion) and purported print-outs of Muhlhahn's midwifery practice's website (Muhlhahn's website) (see Ex. "B" attached to notice of motion). In his affidavit, Goldman swears that the attached version of Muhlhahn's website and annexed version of BOBB are also true and accurate (see Gold- man Affidavit ~ 4, ~ 10). Defendants' contention that the Goldman affidavit falls under the definition of "documentary evidence" pursuant to 3211 (a) (I), is without merit. Unlike other forms of acceptable "documentary evidence" (see e.g. 150 Broadway NY Assocs .• L.P. v Bodner. 1-1 AD3d 1.4. 78-1 N Y.S.2d 63 [lSI Depl 200-l) [lease]; Bronxville Knolls. Inc. v Websler Town Clr. Partnership. 221 AD2d 2-18. 2./8. 634 N Y.S.2d 62 [lSI Depl 1995} [integrated mortgage and note]; Casamassima v Casamassima. 30 AD3d 596. 596. 818 N Y.S.2d 233 [2d Depl 2006} [ir- revocable trust]). an affidavit, by its very nature, cannot conclusively establish a defense as a matter of law (see Weil. GOlshal & Manges. LLP V. Fashion BOlllique of Shorl Hills. Inc .. 10 ADJd 267.271. 780 NY.S.2d 593 [lsI Depl 200-l}). Moreover, the Goldman affidavit's self-serving assertions that the attached exhibits are "true and accurate" cannot ['''12] conclusively dispose of Muhlhahn's defamation claims when they are admittedly "highlighted" portions and "excerpts" of recorded state- ments allegedly made by Muhlhahn in various forums. As such, they cannot serve as the proper means of au- thentication pursuant to the exacting standard of CPLR 32 I I (a) (I) (see e.g. Springer v Almonlaser. 75 AD3d 539. 5-10. 904 N. Y.S.2d 765 [2010) ["The newspaper articles, printouts of web pages, and transcripts of radio and television interviews" submitted in support of de- fendants' motion to dismiss plaintift's defamation claims pursuant to CPLR 3211 (a) (I) were not of "undisputed authenticity," and thus, did not qualifY as "documentary evidence"]). Alternatively, defendants contend that this Court may properly consider the Goldman affidavit and the motion exhibits for consideration of their application to dismiss, pursuant to CPLR 321 I (a) (7). However, it is well-settled that affidavits "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" (Rovello v Orofino Realty Co., Inc .. -10 NY2d 633. 636, 357 N.E.2d 970. 389 N. Y.S.2d 314 [1976}). This argument is similarly unpersuasive as defendants must meet the burden of showing that the self-serving statements ["'13] of the Goldman affida- vit and "highlighted" portions of the exhibits "conclu- sively establish" that Muhlhahn has no cause of action for defamation (see Sokol v Leader. 74 AD3d 1180. 1181-1182.904 N.Y.S.2d 153 [2d Depl2010}[Rovello as applied in defamation case where documentary evidence failed to "conclusively establish" defense as a matter of law]). It should be noted that most, if not nearly all, of the Challenged Statements are asserted by defendants to be true as allegedly demonstrated by the exhibits they annex to the Goldman affidavit. Defendants contend that plain- tift's failure to dispute the purported truth of certain statements in the exhibits conclusively establish that the statements are true. However, since plaintiff "will not be penalized because [s]he [is not required to make an] evi- dentiary showing in support of [her] complaint" (RoveJlo. 40 NY2d al 636 [1976}), defendants have misplaced plaintift's burden at this stage of the litigation (see Pezhman v City of New York, 29 AD3d 164, 168, 812 N Y.S.2d 14 [lsI Depl 2006) [reversing trial court's deci- sion dismissing former teacher's defamation claims based on plaintift's failure to contest the truthfulness of alleged defamatory statements in opposition to ["'14] a mo- tion to dismiss pursuant to CPLR J21 I (a) (I), (7), since plaintiff properly denied the truth of said statements in her complaint]). Even disregarding the factual allegations asserted in the Goldman affidavit and the motion exhibits, this Court must address whether the Challenged Statements them- selves are libelous per se as a matter of law in this pre-answer motion to dismiss. "Whether particular words are defamatory presents a legal question to be resolved by the court in the first in- stance" (Golub v Enquirer/Slar Group. 89 NY2d 1074, 1076. 681 N.E.2d 1282, 659 N. Y.S.2d 836 [1997}). On a motion to dismiss a claim for libel on the ground that the offending statement is not defamatory, the court must determine whether the contested statements are reasona- bly susceptible of a defamatory connotation" (Ava v NYP Holdings. Inc., 6-1 AD3d 407, -112, 885 N.Y.S.2d 247 [lSI Depl 2009}). "The words must be construed in the con- text of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory mean- ing, they are not actionable and cannot be made so by a strained or artificial construction" (Aronson v. Wiersma, 65 NY2d 592. 593, 483 N.E.2d 1138. 493 N. Y.S.2d 1006 [l985}). However, where the ["'15] language is sus- ceptible of more than one meaning, that is enough to say Page 5 32 Misc. 3d I 242(A), '; 938 N.Y.S.2d 228, "; 2011 N.Y. Misc. LEXIS 4376, '''; 2011 NY Slip Op SI683(U) that a reasonable basis exists for a defamatory construc- tion since "it becomes the [trier of fact's] function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader" (see Arrigoni v. Velella, 110 AD2d 601, 603, 488 N.Y.S.2d 18-1 {/st Dept I 985J quoting James v Gannell Co .. Inc., -10 NY2d -115, -119, 353 N.E.2d 8U, 386 N. Y.S.2d 871 (1976J). Defamation is the "making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the middle of right thinking persons, and to deprive him of their friendly intercourse in society" (Dillon v City of New York, 261 AD2d 3-1, 38, 70-1 N. Y.S.2d I (1st Dept 1999J). Generally speaking, defa- mation can take one of two ronns· slander, which is de- famatory matter addressed to the ear, or libel, which is defamatory matter addressed to the eye" (Ava v NYP Holdings, Inc .. 6-1 AD3d 407, 412, 885 N. Y.S.2d 2-17 {/ st Dept 2009J). Libel is broken down into two discrete forms -- libel per se, where the defamatory statement appears on the face of the communication, and libel per quod, where no defamatory statement is present on its face but ["'16] a defamatory import arises through reference to facts extrinsic to the communication (id., 64 AD3d at 412). A statement is defamatory on its face when it "tends to expose the person to hatred, contempt or Dversion, or induce an evil or unsavory opinion of him in the minds of a substantial number of the community" (Geraci v Probst. 15 NY3d 336, U5. 938 N.E.U 91 7, 912 N. Y.S. 2d -18-1 (2010]), or when it suggests improper performance of her duties or unprofessional conduct (Chiavarelli v Williams, 256 AD2d III, 113, 681 N. Y.S.2d 276 {1st Dept 1998J citing Goilib v Enqllir- er/Star Grollp. 89 NY2d 107-1, 1076, 681 N.E.2d 1282, 659 N. Y.S.2d 836 (1997J). Where the challenged statement is alleged to be de- famatory because it reflects negatively on a person's profession or business, it is not enough for the chal- lenged statements to be "a general reflection upon plain- tiffs character or qualities" (see Goilib v Enqllirer/Star Grollp, 89 NYU 1074, 1076, 681 N.E.2d 1282, 659 N.Y.S.2d 836 (1997J). Rather, "the statement must be made with reference to a matter of significance and im- portance for that purpose" (Liberman v Gelstein, 80 NYU -129, -136, 605 N.E.2d 3-1-1, 590 N. Y.S.U 857 {/992J). Moreover, "the mere expression of unhappiness with another's professional work is not defamatory" or where the alleged defamatory statement is "of a kind incompatible with ["'17] the proper conduct of plain- tiffs business" (Aronson v. Wiersma, 65 NY2d 592, 593, -183 N.E.2d 1138, -193 N. Y.S.2d 1006 (1985J). Since falsity is a necessary element of a libel claim, and only facts are capable of being proven false, it fol- lows that a libel action cannot be maintained unless it is premised on published assertions of fact (see Guerrero v Corvo, 10 AD3d 105, III, 779 N. Y.S.2d 12 (1st Dept 2004]), On the other hand, a "pure opinion," which is non·actionable, is a statement which is either accompa- nied by a recitation of the facts on which it is based or which does not imply that it is based on undisclosed facts (Gross v New York Times, 82 NY2d 146, 153,623 N.E.2d 1163,603 N. Y.S.2d 8/3 (1993J). This Court has to determine whether the challenged statements are non·actionable opinion or assertions of fact (Silverman v. Clark, 35 AD3d I, /4, 822 N. Y.S.2d 9 (1st Dept 2006J). In distinguishing between the two, the Court of Appeals has set fonh the specific factors to be considered: (I) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding ['''18] cir- cumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact (see Brian v Richardson, 87 NYU 46, 49, 660 N.E.2d 1126, 637 N. Y.S.2d 347 (1995J) . The Court of Appeals cautions, that sifting through a communication for the purpose of isolating and identi- lYing assertions of fact should not be the central inquiry (Brian, 87 NY2d at 51) , Instead, the Court should look to the over-all context in which the assenions were made and determine on that basis whether the reasonable read- er would have believed that the challenged statements were conveying facts about the libel plaintiff' (Guerrero v. Corvo, 10 AD3d 105,112,779 N. Y.S.2d 12 (1st Dept 200-1]). Finally, the Court is guided by the principle that even in cases where a statement constitutes opinion, such opinions will lose their protection and become actionable where the "statement of opinion" implies that it is based upon facts which justilY the opinion but are unknown to the readers (see Steinhilber v Alphonse, 68 NYU 283, 289, 501 N.E.2d 550, 508 N. Y.S.2d 901 (l986J) , These "mixed opinions," are actionable not because of the fal- sity of the opinion itself, but rather because of the impli- cation that the speaker knows certain facts, IInknown to his alldience, which ['''19] support his opinion and are detrimental to the person about whom he is speaking (see id emphasis added). Conversely, mere opinion that is accompanied by the recitation of facts on which it is based, are ordinarily not actionable because 118 proffered hypothesis that is offered after a full recitation of the facts on which it is based, is readily understood by the audience as conjecture" (see Gross v New York Times. 82 NY2d 146, 153, 623 N.E.U 1163, 603 N.Y.S.2d 813 (1993J). In applying the foregoing standard to each of Page 6 32 Misc. 3d 1242(A), '; 938 N.Y.S.2d 228, "; 2011 N.Y. Misc. LEXIS 4376, "'; 2011 NY Slip Op 51683(U) the Challenged Statements, this Court finds Challenged Statement # ) 1 and # 2J constitute non-actionable opin- ions as a matter oflaw. Namely, the phrase "Fearless" or "too fearless" lacks precise meaning and cannot be shown to be true or false. "Is Midwife Cara Muhlhahn Too Fearless in Her Home-Birth Advocacy" 2 "The fearless, some say too fearless, new leader of the home-birth movement." Similarly, nothing in Statement #3,' is reasonably susceptible to have a defamatory meaning within the context of the Article's discussion of the controversy regarding home birth generally, the suggestion that Muhlhahn is unchallenged in her position for home-birth safety does not subject her to the kind of "evil opinion" ["'20] by a reasonable reader (Geraci, J 5 NY3d al 345 [20/0)). Further, it does not negatively portray her busi- ness or profession. Even assuming argllendo, that said Statement #3 is reasonably susceptible to have a defam- atory connotation, Statement #3 taken in its entirety, is non-verifiable opinion. As courts "will not strain to find defamation where it does not exist" (see Dillon, 26/ AD2d al 38), this Court concludes that Statement #3 is not actionable. 3 "More than anything else, BOBB de-radicalized home birth, conflating it with gar- den-variety natural childbirth and allowing Muhlhahn, largely unchallenged, to argue for its safety." Challenged Statement #4' could be perceived to have a reasonably susceptible defamatory meaning. It is a verifiable fact that Muhlhahn has worked with women who have had "risky" histories or pregnancies (Le., "vaginal births after cesareans," "breeches," and "twins"), and read in connection with the Article's description of Muhlhahn's "midwifery practice" as "atypical," this Court finds that a reasonable reader could conclude that said statement, if false, reflects negatively on Muhlhahn's profession. 4 "She regularly does vaginal births after C-section at home ["'21] and has even home-delivered the riskiest births, breeches, and twins." Muhlhahn also sufficiently states a cause of action sounding in defamation for Challenged Statement #5. n' Namely, and in the context of a consultation in which Goldman and his pregnant wife consider employing Muhlhahn in her professional capacity, the assertion that Muhlhahn has a "lack of experience with lupus" is rea- sonably susceptible to be defamatory in meaning (see Guerrero v. Carva. /0 AD3d /05, 1/2, 779 N. Y.S.2d /2 [/Sl Depl 200.1}). To the degree that these statements were expressions of Goldman's opinion of Muhlhahn's knowledge of pregnant women with lUpus, it is not pro- tected because Goldman's opinions were clearly meant to be understood as based on facts known to Goldman, but unknown to the reader (see e.g. Pontarelli v Shapero, 23/ AD2d -107, -11/-4/2, 647 N.Y.S.2d /85 [/Sl Depl /996)). 5 "But I was concerned by her lack of experi- ence with lupus and mystified by her reaction when Robin brought up the idea delivering with a highly recommended midwife who delivers the babies of high-risk patients at St Vincent's. Muhlhahn rolled her eyes, you might as well go with an obstetrician,' she scoffed," Challenged Statement #6' is also actionable. The as- sertion ["'22] that Muhlhahn appeared "only sporad- ically," viewed against the backdrop of providing mid- wifery services to Garcia, who experienced the ordeal 72 hours of labor, can be reasonably susceptible to more than one meaning. Namely, and according Muhlhahn her every favorable inference at this stage of the litigation, an average reader may conclude that the statement im- plies that Muhlhahn acted in a manner unfit for her pro- fession (see GO/lib, 89 NY2d al /076). Similarly, 6 "But labor is an unpredictable thing, and sometimes the experience is more nightmarish than poetic. Muhlhahn's patient Sandra Garcia was one week overdue when her water finally broke on a Sunday night in early November. She labored that night and through the next day as- sisted by her husband, Jeff Wise, and her doula, a former NYU postpartum nurse who was now working for Muhlhahn. (Muhlhahn, busy with another labor, appeared only sporadically.)" Challenged Statements #7' and # 8' are also suffi- cient on their face. Stated within the same context as Challenged Statement #6, an average reader may rea- sonably conclude that Muhlhahn's alleged lack of super- vision over the doula in the Garcia case, and alleged lack of concern for her ['''23] client's condition are suffi- cient to suggest Mulhahn's performance of her profes- sional duties was in some way improper. These state- ments relate directly to whether Muhlhan's management ofa "nightmarish" labor was appropriate and implies that Gracia's birthing doula was working under Muhlhahn's supervision. Challenged Statements #7 and #8 are rea- sonably susceptible to a defamatory meaning because they imply that Muhlhan acted unprofessionally and was indifferent to her client's medical needs (see Liberman, 80 NY2d aI436). Page 7 32 Misc. 3d I 242(A), '; 938 N.Y.S.2d 228, "; 2011 N.Y. Misc. LEXIS 4376, "'; 2011 NY Slip Op 51683(U) 7 "The doula had somehow misjudged her progression. Still, Muhlhahn wasn't concerned." 8 "How long is too long for a woman to be in labor?' Wise demanded to know when Muhlhahn finally returned to the apartment that night, Nev- er,' Muhlhahn replied flatly." Defendants' argument that Challenged Statements # 6, #7 and #8 are barred under New York's "single in- stnnce rule," is unconvincing. Under New York's "single instance rule," a plaintiff cannot allege libel for language that charges a professional with ignorance or mistake on 8 single occasion, but does not accuse her of general in- competence, ignorance, or lack of skill (Bowes v Magna Concepls, Inc" 166 AD2d 347.348-349.561 N. Y.S.2d 16 [lsi Depl 1990)). ["'24) In Bowes, the First Depart- ment dismissed a defamation claim brought by the for- mer editor of a publication company for stating that plaintiff had written an earlier article in which "her facts [were) jumbled and [she) failed to investigate those facts [in that case)" (/66 AD2d 01348). The "single instance" rule does not apply, to state- ments regarding conduct evidencing a lack of profes- sional character so serious that the plaintiff would be unfit for her profession (Daniel Goldreyer. Lid. v Van de Welering. 217 AD2d 434. 437. 630 N. Y.S.2d 18 {lSI Depl 1995)). In considering the context of Muhlhahn's han- dling of the Garcia labor and delivery, this Court finds that an average reader could reasonably conclude that Challenged Statements #6, #7 and #8 allege instances of misconduct in the course of Muhlhahn's professional duties. Construed "not with the close precision expected from lawyers and judges but as they would be read and understood by the public to which they are addressed" (see Novemberv. Time, Inc ... 13 NY2d 175.178-179.194 N.E.2d 126. 244 N. Y.S.2d 309 (l963j). When combined with the Article's description of Muhlhahn's home birth philosophy, this Court cannot apply the "single instance" rule to Challenged Statements #6-9 (see ["'25) Arm- slrong v Simon & Schusler. Inc .. 85 NY2d 373, 379, 649 N.E.2d 825.625 N. Y.S.2d 477 n 5 {I 995j). The statement that "[Muhlhahn would) bring her pa- tients in, holding their hands, find out we are going to have to do a section, and then she is out the door," con ... tains assertions of particular actions based on facts that reflect a lack of concern by Muhlhahn for her clients in the event of a need for medical intervention (Challenged Statement # 9' ) (see Pe:hman v City 0/ New York, 29 AD3d 164. 168. 812 N. Y.S.2d 14 [lsi Depl 2006j). 9 " St. Vincent's is her dump,' says one former obstetrics resident who's treated Muhlhahn's transfers. She could say any hospital is her back- up, because no hospital is ever going to deny a woman care. She'd bring her patients in, holding their hands, find out we were going to have to do a section, and then she's out the door. To me, that's a dump.' Other doctors on the floor have referred to her transferred patients as "train wrecks" (see Complaint attached as Ex. "A" at- tached to notice of motion). Although defendants argue that this portion of Chal- lenged Statement #9 is not libelous because it conveys nothing about Muhlhahn's actual practice as a midwife, this Court finds this reading as too limited. In the ["'26) immediate context of Muhlhahn's handling of the Garcia case and Garcia's statement regarding hospital staff, "who know what thetre doing" the average reader may reasonably conclude that said portion portrays Muhlhahn's healthcare practice in a negative light (see e.g. GI/errero. 10 AD3d 01112). Upon any reasonable view of the stated facts, Muhlhahn has also adequately pled a cause action sounding in defamation in reference to Challenged Statement # 10" (see O'Loughlin v Palrolmen's Benev. Ass'n oJCity a/New York, Inc .• 178 AD2d 117, 117,576 N. Y.S.2d 858 [lsi Depl 1991)). Because Muhlhahn ad- mitted to not having hospital privileges at SI. Vincent's (whether on her own volition or otherwise), this is a veri- fiable assertion and said Statement is followed immedi- ately by "it is required by law for every midwife in New York to have one," (meaning having hospital privileges). When read within the context of a discussion of Muhlhahn's midwifery practice(s), said Statement can be reasonably susceptible to a disparaging interpretation of Muhlhahn's profession and business (see Eql/inox Mgl. Group. Inc. v Guardian Life Ins. Co. oj America. 28 AD3d 246.246,813 N.Y.S.2d 403 (lSI DepI2006)). 10 "Muhlhahn claims that she could have ['''27) privileges at St. Vincent's as well, but she prefers not to be encumbered by the hospital's restrictions. I actually like legitimacy. I don't en- joy being an outlaw,' she says." Similarly, Muhlhahn has sufficiently pled a claim for libel per se with reference to Challenged Statement #11." This Court is unpersuaded by defendants' conten- tion that, viewed within the allegedly broader debate surrounding home birthing versus giving birth in a hos- pital, the phrase "oullaw of sorts" constitutes non·actionable opinion. Rather, the tenn "outlaw" cou· pled with the alleged fact that Muhlhahn is not covered by malpractice insurance policy, may be reasonably con- strued to reflect negatively upon plaintifi's professional conduct (see Gall/b. 89 NY2d /076). II "But there are ways in which she has made herself an outlaw of sorts- by not carrying mal- practice insurance, for instance. I think she's Page 8 32 Misc. 3d 1242(A), *; 938 N.Y.S.2d 228, **; 2011 N.Y. Misc. LEXIS 4376, ***; 2011 NY Slip Op 51683(U) dangerous,' says a member of the obstetrics statT at St. Vincent's. You need to be accountable. Something bad is going to happen with her ap- proach to management. Bad thi ngs happen to all or us;" Challenged Statement #12" also sufficiently pleads a cause of action. As an assertion of fact that Muhlhahn does not [***28] have a practice agreement with a li- censed physician, which is alleged to be required by law, could lead the average reader to conclude that plaintiff flouts the law. Moreover, these inferences implicate Muhlhahn's business or profession (see also Equinox,28 AD3d al 246; see e.g. Sprewell v NYP Holdings, Inc., I Mise 3d 847, 772 N. Y.S.2d 188 [Sup CI. NY County 2003J). 12 "Though it is required by law for every midwife in New York to have one, Muhlhahn al- so doesn't have a signed practice agreement with a physician, a document that outlines the param- eters of a midwife's care and the protocols under which a mother would automatically risk out'of home birth." This Court finds that Challenged Statement #13" is not actionable. Although the assertion that Muhlhahn accepts a certain number of clients a month is easily ver- ified, such a fact, when taken with in its usual meaning is not defamatory. Since statements cannot be libelous per se if the reference to an extrinsic fact is necessary to give Challenged Statement # 13 a defamatory meaning. Consequently, Muhlhahn's claim against Challenged Statement #13 is hereby dismissed (Aronson v Wiersma, 65 NY2d al 59-1). 13 "Recently, Muhlhahn has more than tripled the number [***29] of births she takes on, to ten a month." Finally, defendants argue that the Challenged Statements classify the Article as a "fair index," but have failed to provide any legal support for their argument, therefore it shall not be discussed herein. Defendants also seek alternative relief, pursuant to CPLR 3211(c) . . Defendants wish to convert the instant motion, to an application pursuant to CPLR 3212, (sum- mary judgment). This branch of the motion is denied. Due to (I) the change in the procedural posture of the case as a result of this Court's partial denial of the origi- nal motion; (2) because it is well within defendants' dis- cretion to make an additional dispositive motion, after discovery has been completed, and the note of issue filed, so they do not suffer any prejudice at this juncture; and (3) this Court's denial of the instant application is discre- tionary (Giannelli v SI. Vincent's Hosp. and Med. Ctr. of New York, 160 AD2d 227, 232, 553 N.Y.S.2d 677 [lsI DepI1990J). Accordingly, it is: ORDERED that defendants Andrew Goldman and New York Media LLC's motion to dismiss is granted, in part; and it is further ORDERED that the following statements pled in the complaint as defamatory are dismissed: "The fearless-some [***30] say too fearless-new leader of the home-birth movement." "Is Midwife Cara Muhlhahn Too Fearless in Her Home-Birth Advocacy?" "More than anything else, BOBB de-radicalized homebirth, conflating it with garden-variety natural childbirth and allowing Muhlhahn, largely unchallenged, to argue for its safety,lI "Recently, Muhlhahn has more than tripled the number of births she takes on, to ten a month." And it is further ORDERED that the remammg statements in the complaint alleged as defamatory shall remain; and it is further ORDERED that defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further ORDERED that the parties are to appear for a pre- liminary conference in Room 304 at 71 Thomas Street, New York, New York on September 15, 20 II, 9:30 A.M. Dated: August 18, 20 II ENTER Hon. Joan M. Kenney Page I LexisNexis® FRED LEROY PASTERNACK, PETITIONER v. MICHAEL P. HUERTA, ACT- ING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND NA- TIONAL TRANSPORTATION SAFETY BOARD, RESPONDENTS No. 12-1111 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT S13 Fe,l. App. ... I; 2013 U.s. App. LEXlS 16802 March 22,2013, Filed PRIOR HISTORY: [**1] On Petition for Review of an Order of the National Transportation Safety Board. Pasternack v. NTSB. 596 F.3d 836. 389 U.S. App. D.C. 266.2010 U.S. App. LEXIS 4035 (2010) COUNSEL: For Fred Leroy Pasternack. Petitioner: Elizabeth Mae Candelario, Yodice Associates. Frederick, MD; Kathleen Ann Barbara Yodice, Esquire, Law Of- fices of Yodice Associates, Frederick, MD. For Michael P. Huerta, Acting Administrator, Federal Aviation Administration, Respondent: Agnes M. Rodri- guez, Esquire, Federal Aviation Administration, (FAA) Enforcement Division, AGC-300, Washington, DC. JUDGES: Before: GARLAND, Chief Judge, KA- V ANAUGH, Circuit Judge, and EDWARDS, Senior Circuit Judge. OPINION [*1] JUDGMENT This cause was considered on a petition for review of an Order of the National Transportation Safety Board ("NTSB" or "Board") and was briefed and argued by counsel. The court has accorded the issues full consider- ation and has determined they do not warrant a published opinion. See D.C. CtR. R. 36(d). It is ORDERED AND ADJUDGED that the Order of the Board is hereby vacated and the petition for review is granted. In 2008, the Federal Aviation Administration C:FAA") is~ued. an order revoking the airline transport pIlot and flIght Instructor certificate and ground instruc- tor certificate of Petitioner Dr. Fred Pasternack on the ground ["2] that Dr. Pasternack allegedly "refused" to take a mandatory drug test. The NTSB upheld the revo- cation order, and Dr. Pasternack petitioned this court for review. After briefing and oral argument, the court va- cated the Board's decision because it was not supported by substantial evidence. Pasternack v. NTSB. 596 F.3d 836. 389 U.S. App. D.C. 266 (D.C. Cir. 20/0). Following a remand of the case. the Board again upheld punitive sanctions by the FAA against Dr. Pasternack. See gener- ally Hllerta V. Pasternack ("Order'~. NTSB Order No. EA-5615, 2012 NTSB LEXIS -I. 2012 WL [*2] 562137 (Feb. 13. 2012). Dr. Pasternack now challenges the Board's 2012 Order. On June I, 2007. Dr. Pasternack received a notice from his employer, Northeastern Aviation Corporation. that he had been randomly selected for drug testing. Several days later, he reported to a LabCorp collection facility but was unable to provide a sufficient urine sam- ple for the test. After a conversation with a testing center "collector," Dr. Pasternack left the facility and returned several hours later. Although the testing facility was of- ficially closed when he returned, he was permitted to enter and provide an adequate sample. The sample tested negative for drug use. The exact circumstances [**3] under which Dr. Pasternack left and returned to the test- ing facility were contested by the parties. Under applicable agency regulations, a failure to remain at a testing facility until completion of a drug test constitutes a "refusal" to test. See 49 C.F.R. § Page 2 513 Fed. Appx. I,'; 2013 U.S. App. LIDOS 16802," -10.191 (0)(2). There is no dispute that Dr. Pasternack left the testing facility before the testing process was com- plete. However, the FAA concedes that leaving with permission does not constitute a refusal. Br. for Resp't at 48. Dr. Pasternack does not contest the legality of the regulation. Rather, he asserts that he received implicit permission to leave the testing facility and return. None- theless, the Board rejected Dr. Pasternack's claim that he had implicit permission to leave the testing facility. We review NTSB decisions under the arbitrary and capricious standard and treat the Board's factual findings as "conclusive" if they are supported by substantial evi- dence. See 5 U.S.c. § 706(2)(A); 49 U.S.c. § 46110(c); Garvey v. NSTB, 190 F.3d 571, 577, 338 U.S. App. D.C. 82 (D.C. Cir. 1999). "If there is no substantial evidence to support the Board's reasoning ... its order must be vacated." Van Dyke v. NTSB. 286 F.3d 59-/.598.351 U.S. App. D.C. 82 (D.C. Cir. 2002). After ["4] careful re- view of the record in this case, we find that the Board's conclusion, that Dr. Pasternack lacked permission to leave the testing facility and, thus, "refused" a mandatory drug test, fails for lack of substantial evidence. We hold that, considering the entire record, substantial evidence docs not support the NTSB's determination that the col- lector did not impliedly give Dr. Pasternack permission to leave. We are therefore constrained to reverse the de- cision of the Board, vacate its Order, and grant the peti- tion for review. Pursuant to Rille 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or peti- tion for rehearing en bonc. See FED. R. App. P. 41(b); D.C. CIR. R. -11(0)(1). Phillips v. Quality Terminal Services, LLC, Not Reported in F.Supp.2d (2009) 2009 WL 4674051 2009 WL 4674051 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division. Wendell PHILLIPS, Plaintiff, v. QUALITY TERMINAL SERVICES, LLC, d/b/a Quality Terminal Services, Inc., a Colorado limited liability company, Burlington Northern Santa Fe Corporation, a Delaware corporation, Psychemedics Corporation, a Delaware corporation, Defendants. No. oB-cv-6633. I Dec. 4, 2009· West KeySummary Labor and Employment (i- Drug Testing A prospective employee failed to state a negligence claim, as the employer did not owe a duty to the employee with respect to drug tests performed by third party laboratories. Therefore, the employer was not negligent for an allegedly false positive drug test performed by the laboratory. Cases that cite this headnote Attorneys and Law Firms Howard Marks, Frank T. Davenport, Michael Aaron Zalay, Berger, Newmark & Fenchel, P.C., Chicago, IL, for PlaintifT. James A. Fletcher, Jeremy M. Berman, Ronald A. Lane, Fletcher & Sippel, LLC, John Phillip Burke, Daniel J. Mohan, Stephanie Ann Cantrell, Daley, Mohan & Groble, PC, Chicago. IL, Ethel J. Johnson, Shook, Hardy & Bacon, L.L.P., Houston, TX, for Defendants. MEMORANDUM OPINION AND ORDER ROBERT M. DOW, District Judge. *1 PiaintifT, Wendell Phillips ("Phillips"), filed a seven-count amended complaint [25] against Defendants Quality Terminal Services, LLC ("QTS"), BNSF Railway Company ("BNSF") I, and Psychemedics Corporation ("Psychemedics") on March 27, 2009. All ofPlaintifTs claims arise out of a 2008 drug test which resulted in the termination of Plaintiffs employment with QTS. Before the Court is Defendant BNSF's motion to dismiss [30] all claims against it- which consist of various state law tort claims- pursuant to Fed.R.Civ.P. 12(b)(6). The Court has jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. For the reasons stated below, the motion [30] is granted in part and denied in part. I. Background 2 PlaintifT resides in Bellwood, Illinois. Compl. ~ i. In May 2000, PlaintifTwas hired by QTS, a Colorado limited liability company that provides transportation. freight and railroad services throughout parts of the United States, to work at QTS's intermodal facility operations located in Cicero, Illinois ("the Cicero facility"). Id. ~ 8. PlaintifT worked as a spotter, hostler driver, hitch inspector and securement verifier at QTS. Id ,~ 8- 9. During his employment with QTS, PlaintifT was a member of Union Local 705, which had a collective bargaining agreement with QTS.Id. ~, 92, 94. QTS conducted at least six random drug tests on PlaintifT during his employment. all of which returned negative results. Id. ~ Ii. In the spring of 2008, PlaintifT learned that BNSF, a rail carrier operating throughout parts of the United States, would be taking over QTS's operations at the Cicero facility in 2009. Id. , 12. BNSF, which was aware of the collective bargaining agreement between QTS and Union Local 705 (id. ~ 96), invited QTS employees to apply with BNSF to fill the positions that were to be vacated by QTS in 2009.1d. ~ 13. On June 25, 2008, PlaintifTapplied to bean intermodal equipment operalor with BNSF. Id. ~ 14. At BNSF, an intermodal equipment operator acts as a hostler driver, hitch inspector andlor securement verifier. Id. On July 23, 2008, PlaintifT attended an orientation held by BNSF in Countryside, Illinois. Id. ~ 15. At the orientation, WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Phillips v. Quality Terminal SelVlces, LLC, Not Reported In F.Supp.2d (2009) 2009 Wl4674051 BNSF informed the applicants that they would be required to submit to a pre-employment drug test. Id t 16. Plaintiff agreed to submit to the drug test, and, during the July 23 orientation, BNSF (or an agent acting on its behalf) cut a length of hair from Plaintiffs chest for drug testing. Id ~ 17. BNSF claims that Plaintiffs hair sample was sent to a laboratory at Psychemedics, a biotechnology company located in Culver City, California that provides drug testing services for businesses.ld . ~ 18. On August 15,2008, Plaintiff received a letter from BNSF extending to him a conditional offer of employment to join BNSF as an intermodal equipment operator at the Cicero facility. Id 1 19. The August 15 letter stated that the offer was "contingent on the favorable outcome of a pre-employment background screening," including a "hair analysis drug screen." Id at Ex. A. On August 29, 2008, Plaintiff received an e-mail from a company called Comprehensive Health Services, Inc. with the subject line "BNSF Applicant Notification philips, wendell." Id ~ 20, Ex. B. The e-mail stated: "You recently applied to BNSF for the position of Crane Director. You failed a test provided by another vendor- EMS!." Id 1 20, Ex. B. '2 At or about the same time, Plaintiff received a phone call from Dr. Joseph Thomasino, who informed Plaintiff that his pre-employment drug test results were positive. Id 121. During his phone call with Dr. Thomasino, Plaintiff insisted that there was a mistake or the results were wrong because he did not use cocaine. Id 1 22. Plaintiff further requested that either a second test be performed on the remaining hair sample, or that the remaining hair be sent to him so that he could have a second test performed. Id However, Dr. Thomasino denied this request. Id Additionally, Plaintiff requested that Dr. Thomasino provide him with a copy of the test results.ld ~ 23. Dr. Thomasino instructed Plaintiff to put his request in writing and fax it to Dr. Thomasino. Id ~ 24. Plaintiff did as instructed but has not yet been provided with a copy of his test results. Id 125. On September 2, 2008, Plaintiff went to Advanced Occupational Medicine Specialists in Bellwood, Illinois, a local drug screening facility, to have another hair sample taken for drug testing purposes. Id " 26-27. Advanced Occupational Medicine Specialists sent the chest hair sample taken from Plaintiff to Quest Diagnostics in Atlanta, Georgia, for testing.ld ~ 27. On September 5, 2008, Quest Diagnostics performed a drug test on the hair sample, and reported that the results were negative. Id '28. At some time prior to September 5, 2008, BNSF informed QTS of Plaintiffs positive pre-employment drug test result andlor provided it with a copy of the test results. Id 1 29. BNSF also instructed QTS to forbid Plaintiff from entering the Cicero facility or returning to work. Id. On September 5,2008, QTS informed Plaintiffby hand delivered letter that he was restricted from the property because of the pre-employment drug test results. Id. , 30. The letter also stated that BNSF would lift the restriction if Plaintiff completed a company-sponsored substance abuse program. Id In response, Plaintiff offered the results of the drug test done by Quest Diagnostics, and requested that he be given another opportunity to retake the drug screening test. Id ,/31. Around this time, Plaintiff called a BNSF representative and informed him that the preemployment test results were incorrect, and that Plaintiff had another drug test performed by Quest Diagnostics, which produced a negative result. Id , 32. Plaintiff also requested that the remaining hair sample from the Psychemedics' drug test be retested. Id. The representative informed Plaintiff that his remaining hair sample had been destroyed and was not available for retesting. Id ,/33. Both QTS and BNSF refused to consider the results from the test performed by Quest Diagnostics, refused to retest Plaintiff, and either refused to retest the remaining hair sample to confirm the original test results, or destroyed the remaining hair sample. Id '/ 34. QTS again offered to remove the restriction if Plaintiff completed a substance abuse program. Id '/ 35. '3 Plaintiff agreed to participate in the substance abuse program. Id ~ 36. At the first meeting, Plaintiff showed the results of the Quest Diagnostics drug test to a QTS representative or the program moderator. Id The QTS representative told Plaintiff that unless he admitted to having a drug problem and agreed that the Psychemedics' test results were accurate, he would not be allowed to complete the substance abuse program, he would never work for QTS again, he would never get a job with BNSF, and he would never work in the railroad industry again. Id ,/37. Plaintiff refused to state that he used cocaine or that the Psychemedics' test results were valid.ld 1 38. Plaintifflost his job with QTS. Id Plaintiff asserts various state law tort claims against BNSF based on its involvement in the drug testing and the subsequent termination of his employment with QTS, including a negligence claim (Count IV), a defamation WESTLAW © 2016 Thomson Reuters No claim to original U.S Government Works. 2 Phillips v. Quality Terminal Services, LLC, Not Reported In F.Supp.2d (2009) 2009 WL 4674051 claim (Count V), and a tortious interference with contractual relations claim (Count VI). PlaintitTalso seeks to hold BNSF liable for the allegedly negligent acts of Psyche medics (Count II). II. Legal Standard on a Rule 12(b)(6) Motion A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relieP' (Fed.R.Civ.P. 8(a)(2», such that the defendant is given "fair notice of what the • •• claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson. 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegalions in the complaint are true. E E 0. C. v. Concentra Health Servs .• Inc .. 496 F.3d 773, 776 (7th Cir.2007)(quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintitT must allege facts that, when "accepted as true, • • • ~state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, - U.S.--,--, 129 S.Ct. 1937,1949,173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintitT pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal. 129 S.Ct. at 1949. "[O]nce a claim has been stated adequalely, it may be supported by showing any set of facts consistent with the allegations in lhe complaint." Twombly. 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintitTand all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005). 111. Analysis A. Negligence Claims '4 Counts II and IV of the first amended complaint purport to state negligence claims against Psychemedics and BNSF. To stale a claim for negligence, PlaintitT must allege that BNSF owed a duty of care to PlaintitT, BNSF breached lhat duty, and that breach proximately caused the PlaintitT damage. See Iseberg v. Gross. 227 1I1.2d 78, 86~ 87,316 III.Dec. 211,879 N.E.2d 278, 284 (111.2007). Each of Plaintiffs negligence claims is predicated, at least in part, on federal regulations promulgated under the Federal Rail Safety Act ("FRS A"), 49 U.S.C. § 20101 et seq. Therefore, a brief overview of the FRS A and the cited regulations is necessary. Congress enacted the FRSA to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Under the FRSA, the Secretary of Transportation is authorized to promulgate and issue regulations and orders for every area of railroad safety. 49 U.S.C. § 20103(a); see also Burlington Northern and Santa Fe Ry. Co. v. Doyle, 186 F.3d 790, 794 (7th Cir.1999). The Secretary regulates rail safety through the Federal Railroad Administration ("FRA"). Doyle, 186 F.3d at 794. The FRA has promulgated numerous regulations pertaining to railroad safety, including regulations regarding drug and alcohol testing of transportation employees. See 49 C.F.R. § 219.501 (requiring preemployment drug testing of certain transportation employees); 49 C.F.R. § 40.1 et seq. (setting forth procedures for transportation workplace drug and alcohol testing programs). The regulations require that, before "perform[ing] covered service for n railroad," "covered employee[s] * • • undergo testing for drugs." 49 C.F.R. § 219.501. Under the regulations, a ~~covered employee" is "n person who has been assigned to perform service in the United States subject to the hours of service laws (49 U.S.C. ch. 211 )," which includes train employees (49 U.S.c. § 22103), signal employees (49 U.S.C. § 21104), and dispatching service employees (49 U.S.C. § 22105). PlaintitTalieges, and BNSF concedes, that BNSF is a rail carrier as defined by 49 U.S.C. § 20102, and consequently is subject to the safety and drug testing regulations promulgated by the FRA. I. Count II-BNSF's Alleged Liability for Psychemedics' Negligence Count II, while nominally a negligence claim against Psychemedics based on its alleged failure to properly and accurately perform and report the results of PlaintiITs drug test, also seeks to hold BNSF liable for Psychemedics' alleged negligence. PlaintitT alleges that Psychemedics is an expert in the field of drug testing and, as such, owes a "duty to properly and accurately perform and report the results of its drug tests." Cmplt. , 55. Illinois case law recognizes that a "drug-testing laboratory owes a duty of reasonable care to persons whose specimens it tests for employers or prospective employers." Stinson v, Physicians Immediate WESTLAW © 2016 Thomson Reuters. No claim to onginal U.S. Government Works. 3 Phillips v. Quality Terminal Services, LLC, Not Reported In F.Supp.2d (2009) 2009 Wl46740S1 Care. Ltd, 269 III.App.3d 659, 207 II1.0ec. 96, 646 N.E.2d 930, 934 (III.App.2d Oist.i995); see also Palonis v. Jewel Food Stores. Inc .. 383 F.Supp.2d 1072, 1074 (N.O.lII.2005). Plaintiff further alleges that he never used cocaine, and therefore Psychemedics breached this duty by reporting that Plaintiff failed the drug tesl. Finally, Plaintiff alleges that he was injured as a result of the breach. Thus, Plaintiff has stated a legally cognizable negligence claim against Psychemedics. '5 The question with respect to BNSF's motion to dismiss is whether BNSF can be held vicariously liable for Psychemedics' alleged negligence. Illinois law provides that the negligence of one person will be imputed to another only where a master/servant, principal/agent or employer! employee relationship exists. See Moy v. COllnty o/Cook. 159 1I1.2d 519, 203 1II.0ec. 776, 640 N.E.2d 926, 928 (111.1994) ("[T]o impute the negligence of one person to another, such persons must stand in a relation of privity and there is no such thing as imputable negligence except in those cases where such a privity as master and servant or principal and agent exists") (quoting Palmer v. Miller, 380 III. 256, 43 N.E.2d 973 (111.1942»; Alms v. Ball"', 343 III.App.3d 67, 277 IIl.0ec. 757, 796 N.E.2d 1123, 1129 (1II.App.Ct. 1st Oist.2003) (same). Here, the parties dispute whether Psychemedics acted as BNSF's agent or as an independent contractor. If Psychemedics was BNSF's agent, BNSF "is liable for the acts of [Psyche medics] performed within the scope of the agency." Gomien v. Wear- Ever Aillminum, Inc .. 50 1I1.2d 19,276 N.E.2d 336 (111.1971). By contrast, if Psychemedics is an independent contractor, BNSF "will not be held vicariously liable for [its] tortious acts or omissions" unless BNSF retained "control over the operative details of [Psychemedics'] work." Madden v. Paschen, 334111.0ec. 31 5, 916 N.E.2d 1203,2009 WL 3161787, at "14 (III.App.Ct. 1st Oisl. Sept. 30, 2009); see also Aguirre v. Turner Const. Co .. 582 F.3d 808, 815 (7th Cir.2009) (noting that under Illinois law, "no liability will be imposed on the employer or general contractor unless the evidence shows the employer or general contractor retained control over the 'incidental aspects' of the independent contractor's work") (citation omitted). "The test of agency is whether the alleged principal has the right to control the manner and method in which work is carried out by the alleged agent and whether the alleged agent can affect the legal relationships of the principal." Chemtool, Inc. v. Lubrication Tech .. Inc .. 148 F.3d 742, 745 (7th Cir.1998) (citing cases). Although there is no rigid rule for determining whether an agency or an independent contractor relationship exists, the four major factors to consider are: (I) the right to control the manner in which work is performed; (2) the method of payment and whether taxes are deducted; (3) the level of skill required to perform the work; and (4) furnishing of necessary tools, materials and equipmenl. Lang v. Silva, 306 III.App.3d 960, 240 1II.0ec. 21, 715 N.E.2d 708, 716 (III.App.CI. 1st OisI.1999). The right to control the manner in which work is performed is considered the "hallmark of agency ." Kaporovskiy v. Grecian Delight Foods, Inc., 338111.App.3d 206, 272l1l.Oec. 453, 787 N.E.2d 268, 272 (III.App.Ct. 1st OisI.2oo3). Conversely, an independent contractor undertakes to produce a certain result, but is not controlled in regard to how that result is achieved. Lang. 240 1I1.0ec. 21, 715 N.E.2d at 716. "The existence and scope of an agency relationship are questions of facl." Tribel/ v. BNC Mortgage, Inc. et al., 2008 WL 162755, at "4 (N.O.lII. Jan.17,2008). '6 Under the federal pleading standard, Plaintiff is not required to plead facts which would establish agency. See Caterpillar, Inc. v. Usinor Industeel, 393 F.Supp.2d 659, 670 (N.0.1II.2005). Rather, to plead the existence of an agency relationship, a plaintiff must allege some factual predicate to create the inference of agency. Tribel/, 2008 WL 162755, at "4. Plaintiff does not expressly plead the existence of an agency relationship between Psychemedics and BNSF in his comploinl. The complaint also contains no facts from which the Court can reasonably infer the existence of such a relationship. In support of his theory that BNSF is liable for Psychemedics' alleged negligence, Plaintiff alleges that, under the FRA regulations regarding drug testing of transportation employees, BNSF "is responsible for meeting all applicable procedures and requirements of workplace drug testing and is responsible for the actions of its officials, representatives, and agents in carrying out the requirements of the DOT agency regulations." Cmpll. ~ 59. Plaintiff further alleges that Psychemedics performed the drug test at issue, and that BNSF "chose to rely upon and authorize Psychemedics to perform drug tests." Id ~ 60. These allegations do not give rise to an inference that BNSF exercised any degree of control over the manner in which Psychemedics performed the drug test. Therefore, Count II is dismissed as to BNSF for failure to state a claim. As noted above, Plaintiff alleges that BNSF is liable for Psychemedics' alleged negligence by virtue of the DOT drug testing regulations. Even assuming that the regulations subject BNSF to liability for Psychemedics' conduct, that WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Phillips v. Quailly Terminal Services, LLC, Not Reported In F.Supp.2d (2009) 2009 WL 4674051 fact does not establish that Psychemedics is BNSF's agent for purposes of Illinois tort law. Moreover, to the extent that Plaintiff is arguing that the regulations imposed a duty on BNSF to ensure that Psychemedics complied with the regulations, as discussed below, Plaintiff cannot show that the regulations impose such a duty. 2. Count IV-Negligence by BNSF The negligence claim set forth in Count IV is based on the federal regulations discussed above. According to Plaintiff, the drug testing regulations promulgated by the FRA impose various duties on employers, including BNSF. 3 Plaintiff further alleges that BNSF breached those duties by, imer alia. failing to ensure that the testing standards utilized satisfied the standards prescribed by 49 C.F.R. § 40.1 el seq., failing to ensure that the results of drug test were not released to third parties, failing to notily Plaintiff of his right to test the split specimen, and failing to cancel the results of the drug test when the split sample was not available and the test sample was improperly destroyed. BNSF contends that the regulations at issue do not impose any duties on it with respect to Plaintiff because the position for which Plaintiffwas applying- that ofintermodal equipment operator- is not subject to 49 C.F.R. § 40.1 el seq. As discussed above, the regulations govern the drug testing of ucovered employees"- meaning train employees (49 U.S.C. § 22103), signal employees (49 U.S.C. § 21104), and dispatching service employees. According to BNSF, intermodal equipment operators perform tasks related to the loading of trailers and containers on or off chassis and railcars in the railyard, and cannot be considered train employees, signal employees, or dispatching service employees. Plaintiff alleges that an intermodal equipment operator is equivalent to a hostler driver (Cmplt.~ 14); that a hostler is a covered employee under the regulations (id. ~ 10); and that as a hostler driver for QTS he was considered and treated as a covered employee (id. ~ II). Taking these allegations as true, as it must at this stage, the Court finds that Plaintiff has sufficiently alleged that he was applying for a job as a ucovered employee" within the meaning of the regulations, such that the requirements set forth in 49 C.F.R. § 40.1 el seq. apply. -7 BNSF further argues that, even if the regulations do apply to Plaintiff, his negligence claim must fail because there is no private cause of action against a railroad based on noncompliance with the requirements of 49 C.F.R. § 40.1 el seq. In support of this position, BNSF cites 49 C.F.R. § 219.17(b), which provides: "Nothing in this part * * * [clreates a private right of action on the part of any person for enforcement of the provisions of this part or for damages resulting from noncompliance with this part." While BNSF is correct that 49 C.F.R. § 219.17(b) establishes that no private right of action exists under the regulations, the inquiry does not end there. Under Illinois law, the violation of a regulation, ordinance, or statute designed to protect human life or property is primafacie evidence of negligence, meaning it is evidence that can be rebutted by proof that the person acted reasonably under the circumstances. See Camp v. TNT Logislics Corp., 553 F.3d 502, 506 (7th Cir.2009) e'ln a common law negligence action, a violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence; the violation does not constitute negligence per se . .. ) (quoting Abbasi ex rei. Abbasi v. Paraskevoulakos. 187 1II.2d 386, 240 1II.0ec. 700, 718 N.E.2d 181, 185 (111.1999)). In other words, "if a statute defines what is due care in some activity, the violation of the statute * * * presumptively establishes that the violator failed to exercise due care." Cuyler v. U.S .. 362 F.3d 949, 952 (7th Cir.2004) (citation omitted). Here, Plaintiff contends that 49 C.F.R. § 40.1 el seq. defined BNSF's duty of care. But, as the Seventh Circuit explained in Cuyler. "the statutory definition [of the standard of carel does not come into play unless the tort plaintiff establishes that the defendant owes a duty of care to the person he injured * * *, because tort liability depends on the violation of a duty of care to the person injured by the defendant's wrongful conduct." [d. (citations omitted). Put differently, the existence ofa duty and the breach of a duty are distinct concepts. See Granl v. Soulh Roxana Dad's Club. 381111.App.3d 665, 319111.0ec. 780, 886 N.E.2d 543, 551 (1II.App.Ct. 5th Oist.2008) ("The existence of a duty does not equate to a breach of duty. The two concepts are distinct and must be considered separately."). Consequently, the violation of a regulation is evidence of a breach only if an underlying duty exists. And "the mere fact that a statute defines due care does not in and of itself create a duty enforceable by tort law." Cuyler. 362 F.3d at 952. See also Recio v. GRMHA Corp., 366 III.App.3d 48, 303 1I1.0ec. 208, 851 N.E.2d 106, 115 (111.2006) ("where a statute or ordinance did not create a private right of action, its violation would only be relevant to whether the defendant 'had acted with less than reasonable care' [but ilt would not have the effect of creating a duty to [the plaintifl] where none existed"); Ross v. Doe Julie. Inc .. 341 III.App.3d 1065, 275 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Phillips v. Quality Terminal Services, LLC, Not Reported In F.Supp.2d (2009) 2009 WL 4674051 1Il.Dec. 588, 793 N.E.2d 68, 75 (IlI.App.CI. I st Ois1.2003) ("While alleged violations of codes which do not contain language creating a statutory duty may be evidence of failure to exercise reasonable care, the violations do not create a duty where none otherwise exists. " " " Accordingly, the alleged violations of these safety regulations and standards cannot create a duty ."). ·8 Here, Plaintiffs negligence claim is premised on duties that he claims the federal drug testing regulations impose on BNSF. However, as the cases above iIIustrale, Ihose regulalions cannol impose any duties on BNSF thai did nol exist at common law. This Court is aware of no common law dUly imposed on employers with respecl 10 drug lesls performed by third party laboralories, and Plaintiff has not identified any applicable common law dulies. Because Plainliff has failed to allege thai BNSF owed him a duty, BNSF's motion to dismiss is granled as 10 Count IV. B. Count V-Defamation In Counl V, Plainliffbrings a defamation claim againsl BNSF. To state a claim for defamation under Illinois law, a plainliff must allege Ihat Ihe defendanl made a false statement about the plaintiff, that Ihere was an unprivileged publicalion of the statement 10 a third party, and that Ihe publicalion damaged the plainliff. Ptasznik v. St. Joseph Hasp .. 464 F.3d 691, 698 (71h Cir.2006). Here, Plainliff alleges Ihat BNSF made a false slalemenllo a Ihird party when it informed QTS thai Plaintiff had failed Ihe pre-employmenl drug lesl. Plainliffalso alleges Ihat he suffered damages because he 1051 his job as a result of the communication. BNSF responds that Plaintiff cannol establish the false stalement element of a defamalion claim because Plaintiff did in faci fail Ihe drug lest, such that any stalement 10 that effeci was not false. "[T]rue statemenls cannot support a claim for defamalion" because "[t]ruth is an absolute defense 10 defamation." Hnilica v. Rizza Chevrolet. Inc .. 384 IlI.App.3d 94, 323 IlI.0ec. 454, 893 N.E.2d 928, 931 (lII.App.CI. I 51 Oist.2008). A defendanl needs only to show the "subslantial lrulh" of the alleged slatement 10 establish this defense. J. Maki Canst. Co. v. Chicago Regional Council of Carpenters, 379 1Il.App.3d 189, 318 IlI.0ec. 50, 882 N.E.2d 1173 (1II.App.CI.2d OisI.2008). Subslanlial trulh is demonslrated when Ihe defendant has shown that the "gist" or "sling" oflhe alleged defamatory stalement is lrue.ld "While delermining 'substantial trulh' is normally a question for Ihe jury,lhe question is oneoflaw where no reasonable jury could find that substantiallruth had nol been established." Id In support of ils claim Ihat Plaintiff failed the drug test, such that any statemenl to that effect was not false, BNSF points to two exhibits attached to Plainliffs Amended Complainl; namely, the email Plaintiff received advising him that he failed the drug test, and the letter Plainliff received from QTS staling Ihal BNSF had reported Ihat Plaintiff failed Ihe drug tesl. According to BNSF, these documents establish that Plaintiff did in fact fail the drug screen. "A cause of action can be dismissed if a plainliff more or less concedes the essenlial trulh of Ihe allegedly defamalory slatement or if Ihere is no basis for a reasonablejury 10 find that the plaintiffs defamalory slatement was not subslanlially lrue even as framed in plainliffs own allegations." Medallion Products, Inc. v. H.Cr.V .. Inc .. 2007 WL 1022010, at "3 (N.O.IlI. March 29, 2007) (citing Clark v. Maurer, 824 F.2d 565, 566 (71h Cir.1987». But here Plaintiff alleges that the results of the drug test were incorrect and thai BNSF's slatement was false. AI this early slage, the Court finds no basis to conclude that a reasonable jury could not find Ihal the reported drug results were wrong and that BNSF's statement to QTS was false. For these reasons, BNSF's motion to dismiss is denied as to Count V. 4 C. Count VI-Tortious Interference with Contractual Relations ·9 Count VI alleges a tortious inlerference with contractual relalions claim against BNSF. To slale claim for tortious interference with contractual relations, Plaintiff must allege that a valid and enforceable contract existed, that BNSF was aware of the contract, that BNSF intentionally and unjustifiably induced a breach of the contract, and that Plaintiffsuffered damages as a result. See Cody v. Harris, 409 F.3d 853, 859 (7th Cir.2005). Here, Plaintiff bases his tortious interference with contractual relations claim on the collective bargaining agreement between QTS and Local Union 70S, which he alleges constituted a valid and enforceable contract regulating his employment relationship with QTS. Additionally, Plaintiff alleges that BNSF was aware ofthis employment relationship and the collective bargaining agreement, that BNSF induced a breach of this contractual relationship when it barred Plaintiff from entering the Cicero facility, and that, as a result of these actions, Plaintiff was terminated by QTS, which in tum resulted in a loss of salary, advancement opportunities, and employee benefits. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Phillips v. Quality Terminal Services, LLC, Not Reported In F.Supp.2d (2009) 2009 WL 4674051 BNSF moves to dismiss Count VI on mUltiple grounds. First, BNSF contends that Plaintiff was an at-will employee of QTS, and therefore, had no valid and enforceable employment contract with QTS on which to base a tortious interference with contractual relations claim. BNSF is correct that, under Illinois law, "[a)n action for tortious interference with contractual relations is not the proper vehicle for a discharged [at-will employee) seeking to recover damages." Canel and Hale, Ltd v. Tobin. 304 III.App.3d 906, 238 1II.0ec. 64, 710 N.E.2d 861, 871 (1II.App.Ct. 1st Oist.1999). Rather, an action for tortious interference with a contract that is terminable at will is classified as one for intentional interference with prospective economic advantage. See id ; Storm & Associates. Ltd v. C/lclllich. 298 III.App.3d 1040, 233 1II.0ec. 101, 700 N.E.2d 202, 210 (III.App. I st Oist.1998). However, to the extent that Plaintiff was an at- will employee (which he appears to concede 5), the fact that Count VI of the complaint is captioned "Tortious Interference with Contractual Relations" is not fatal to Plaintiffs tortious interference claim. See Albiero v. City of Kankakee. 122 F.3d 417, 419 (7th Cir.(997) (stating that a complaint is not required to set out a legal theory, and that "[h)aving specified the wrong done to him, a plaintiff may substitute one legal theory for another without altering the complaint"); Williams v. Senif[. 342 F.3d 774, 792 (7th Cir.2003) ("the complaint need not identifY a legal theory, and specifYing an incorrect theory is not fatal"); Evers v. Astrlle, 536 F.3d 651, 658 (7th Cir.2008) ("the characterization or labeling of claims by the pleader is not controlling"). Therefore, the Court will consider whether the complaint states a claim for tortious interference with a prospective economic advantage. The elements of such a claim are: (I) Plaintiffs reasonable expectation of entering into a valid business relationship; (2) defendant's knowledge of the plaintiffs expectancy; (3) purposeful interference by defendant that prevents the plaintiffs legitimate expectancy from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference. Fellhaller v. City of Geneva. 142 1II.2d 495,154 1I1.0ec. 649, 568 N.E.2d 870 (111.1991). With respect to the third element, "a plaintiff must show not merely that the defendant has succeeded in ending the relationship or interfering with the expectancy, but· •• [that) the defendant has committed some impropriety in doing so." Dowd & Dowd, Ltd v. Gleason, 352 III.App.3d 365, 287 IIIoOec. 787, 816 N.E.2d 754, 768 (III.App.Ct. I st Oist.2004). '10 Here, Plaintiff has alleged facts that he had an existing employment relationship with QTS and a reasonable expectation of continued employment. "Until tenninated, [a) relationship created by a contract terminable at will is subsisting and will presumptively continue in effect so long as the parties are satisfied." Id Consequently, "[s)uch a relationship is sufficient to support an action for tortious interference." Id Plaintiff also alleges the following: (I) that BNSF was aware of the employment relationship, (2) that BNSF prohibited Plaintiff from entering the Cicero facility despite knowing that doing would cause QTS to fire Plaintiff, and (3) that QTS in fact fired Plaintiff because he was barred from entering the Cicero facility. BNSF contends that Plaintiff cannot allege the third element of a tortious interference claim- interference by defendant- because BNSF simply restricted Plaintiff from entering the Cicero facility until he successfully completed a company sponsored substance abuse program. The Court disagrees; prohibiting Plaintiff from entering his place of employment is sufficient interference with Plaintiffs employment relationship. BNSF's argument regarding the fourth element of a tortious interference claim-damages to the plaintiff resulting from defendant's interference- is likewise unavailing. According to BNSF, its action did not result in Plaintiffs tennination; rather, Plaintiff was terminated for refusing to participate in a QTS substance abuse program. The Complaint alleges that Plaintiff was terminated after refusing to admit to drug use as part of the substance abuse program (Cmplt.~ 38) and that he was terminated because he was unable to enter the Cicero facility (id ~ 102, 287 1I1.0ec. 787, 816 N.E.2d 754). Taking all the allegations as true, the Court finds that Plaintiff has sufficiently stated a claim for tortious interference with a prospective economic advantage, including alleging that he was damaged as a result of BNSF's actions. Finally, BNSF contends that its conduct was privileged because it was acting pursuant to its business interest in having a drug free workplace, and therefore Plaintiff must establish that BNSF's actions were unjustified or were done with actual malice. A defendant's interference is privileged where "the defendant was acting to protect an interest which the law deems to be of equal or greater value than the plaintiffs contractual rights." HPI Health Care v. MOllnt Vernon Hospital. 131 1II.2d 145, 137 1II.0ec. 19, 545 N.E.2d 672, 677 (111.1989). Where a defendant's interference is privileged, the plaintiff bears the burden of pleading and proving that the defendant's conduct was unjustified or malicious. Id. Uln the context of a suit for tortious interference with a prospective economic relationship, the WESTLAW © 2016 Thomson Reuters. No claim to onglnal U.S. Government Works. 7 Phillips v. Quality Terminal Services, LLC, Not Reported In F.Supp.2d (2009) 2009 WL 4674051 tenn "malicious' does not carry the ordinary meaning of vindictive or malevolent; it means intentionally and without justification." Delloma v. Consolidation Coal Co .. 996 F.2d 168,171 (7th Cir.1993). 'II The federal notice pleading standard, not Illinois's fact pleading requirement, applies to Plaintill's tortious interference claim. See Hefferman v. Bass. 467 F.3d 596, 599 (7th Cir.2006) ("The Federal Rules of Civil Procedure apply to all cases filed in federal court, no mailer what the basis of subject mailer jurisdiction."). Under Rule 8 and the federal regime, U[n]otice is what counts. Not facts; not elements of 'causes of action'; not legal theories." Id at 600. Although the complaint does not use specifically the words umalicious" or "unjustified," it alleges facts that, if proven, could show that BNSF's conduct was unjustified. In particular, PlaintifT alleges that he told a BNSF representative that the drug test results were incorrect, and informed BNSF about the negative result of the September 5th drug test performed by Quest, but that BNSF nevertheless refused to allow him to access the Cicero facility without undergoing a substance abuse program. For these reasons, the Court finds that PlaintifT has stated a claim for tortious interference with a prospective economic advantage. However, the Court concludes that PlaintifT has failed to state a contractual relations claim. As noted above, PlaintifT appears to concede that he was an at will employee, which would foreclose such a claim. Even assuming PlaintifT is not an at will employee, any tortious interference with contractual relations claim based on the collective bargaining agreement would be preempted by the Labor Management Relations Act ("LMRA"). See Kimbro v. Pepsico. Inc., 215 F.3d 723, 727 (7th Cir.2000) (holding that a suit by an employee against his employer alleging tortious interference with a collective bargaining agreement is preempted by the LMRA because interpretation of the contract is necessary to resolution of the dispute). Therefore, BNSF's motion to dismiss Count VI is granted as to the contractual relations claim and denied as to the prospective business interest claim. V. Conclusion For the reasons stated above, BNSF's motion to dismiss [30) is granted with respect to Count II, Count IV, and the tortious interference with contractual relations claim in Count VI. BNSF's motion to dismiss is denied as to Count V and the tortious interference with a prospective business interest claim set forth in Count VI. All Citations Not Reported in F.Supp.2d, 2009 WL 4674051 Footnotes 1 As BNSF notes in its motion to dismiss. it was improperly sued as Burlington Northern Santa Fe Railway Company. 2 3 For purposes of Defendant's motion to dismiss. the Court assumes as true ail well-pleaded allegations set forth in the amended complaint See. e.g., Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir.2007). "A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." Fed.R.Civ.P. 10(c). Therefore, the Court also will consider the exhibits to Plaintiffs complaint. Specifically. Plaintiff alleges that BNSF had a duty under 49 C .F.R. § 219.701 to ensure thatthe testing standards utilized satisfy the standards prescribed by 49 C.F.R. § 40.1 et seq. Plaintiff further alleges that BNSF had a duty not to release the results of drug tests to third parties (citing 49 C.F.R. § 40.321), and to notify Plaintiff of his right to test the split specimen and to cancel the results of the drug test when the split sample was not available and the test sample was improperly destroyed (citing 49 C.F.R. §§ 40.153, 40.187(d), 40.201(e)). 4 Plaintiff also alleges that the communication at issue accused him of criminal activity, Cmplt. 11 88, arguing that the possession and use of cocaine is a criminal offense. In Illinois. defamatory statements imputing the commission of a criminal offense give rise to a defamation per se cause of action. meaning actual damages to the plaintiffs reputation are presumed. Walker v. Braes Feed Ingredients. Inc., 2003 WL 1956162. at '2 (N.D. III. April 23, 2003). Here, Plaintiff also pleads damage to his reputation. Cmplt. 1188. Therefore, Plaintiff appears to be alleging claims for defamation per se and defamation per quod. BNSF raises an innocent construction defense under Anderson v. Vanden Dorpel, 172 1I1.2d 399, 217 III. Dec 720,667 N.E.2d 1296 (111.1996). Under the innocent construction doctrine. which "applies only to actions for defamation per se [,J' , , even if a statement fits within one of the recognized defamation per se categories, recovery is precluded if the statement reasonably can be given an Innocent construction." Anderson, 217111.Dec. 720, 667 N.E.2d at 1301-02. In order to determine whether a statement can be innocently construed, a court must consider the statement "in context. with the words and the implications therefrom given their natural and obvious meaning." Id. at 1302 (quoting WESTLAW © 2016 Thomson Reuters. No claim to onginal U.S. Government Works. B Phillips v. Quality Terminal Services, LLC, NDt RepDrted In F.Supp.2d (2009) 2009 VVL 4674051 Chapski v. Copley Press, 92 1I1.2d 344, 65 1I1.0ec. 884, 442 N.E.2d 195 (111.1982)). Based on the complaint alone, the Court cannot evaluate the full context in which the statement at issue was made, and therefore cannot determine at this early stage whether the statement may reasonably be innocently Interpreted. BNSF of course remains free to assert such a defense to Plaintiffs defamation per se claim at summary judgment when the record has been more fully developed. 5 Plaintiff states in his response that 'technically speaking, BNSF may be correct' that he was an at-will employee. [40, at 10J. End of Document C 2016 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 361ER Cases 1120 2013 WL 5200209 Only the Westlaw citation is currently available. United States District Court, D. Arizona. Steven SPIKER and Denise Spiker, husband and wife, Plaintiffs, v. SANJIV AN PLLC, an Arizona professional limited liability company dba Buckeye Medical Clinic; Karen Padilla; John Doe Padilla; Wal-Mart Stores Incorporated, a Delaware corporation; Wal-Mart Transportation LLC, a foreign LLC; Wal-Mart Associates Incorporated, a Delaware corporation; Stephen Kracht, D.O.; and EScreen Incorporated, a Delaware corporation, Defendants. No. CV-13-00334-PHX-GMS. I Sept. 16, 2013. ORDER G. MURRAY SNOW, District Judge. *1 Ali Defendants move to dismiss Plaintiffs' Second Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6). (Docs.19, 20, 21.) For the reasons specified below, the Motion of Defendant Wal- Mart is granted in part and denied in part, the Motion of Defendants BMC and Padilla is denied, and the Motion of Defendants eScreen and Dr. Kracht is granted in part and denied in part. I BACKGROUND This case arises out of an employee drug test that revealed the existence of banned substances and led to the termination of the employee. Plaintiff Steven Spiker was employed as a truck driver for Defendant Wal- Mart for approximately seven years.2 (Doc. 14, Sec.Am.Compl.~ 31.) Truck drivers are subject to the Federal Omnibus Transportation Employee Testing Act (the "FOTETA") and the implementing Department of Transportation ("DOT') regulations. 49 U.S.c. §§ 45101, el seq. Defendant eScreen, a Third- Party Administrator ("TPA"), provided bundled drug testing services to Wal- Mart. (Doc. 14 ~ 8.) eScreen handled the selection, hiring. training, andlor supervision of collection sites and medical review officers ("MROs"). (Id. ~~ 10-11.) On September 2, 2011, Mr. Spiker was directed by Wal- Mart to submit to a random DOT drug test at a coliection site, Defendant Buckeye Medical Clinic ("BMC"). (Id. ~ 34.) Mr. Spiker reported to BMC and provided a urine specimen to BMC's employee, Defendant Karen Padilla. (Id. ~~ 35, 37- 38.) At the time, the Complaint alieges that Padilla was not credentialed or trained pursuant to the DOT regulations. (Id. ~ 38.) Padilla affixed a tamper-evident seal on Mr. Spiker's specimen bottle after Mr. Spiker initialed it. (Id. ~ 37.) Padilla prepared the specimen, completed a Custody and Control Form ("CCF") that Mr. Spiker certified, and sent the specimen and the CCF to a laboratory. Padilla's handling of Mr. Spiker's specimens led to them being contaminated or mistakenly identified. (Id. ~ 69.) At the laboratory, the specimen tested positive for banned substances. (Id. ~ 43; Doc. 20- 1, Ex. I.) Defendant Stephen Kracht, D.O., the MRO, reviewed the CCF and the laboratory's findings but did not discover any flaws therein. (Doc. 14 ~ 39.) Upon receiving notice of the positive drug test report, Mr. Spiker complained about the report and the drug testing process to Defendants but they did not invalidate the report. (Id. ~ 45.) As a result of the report, Wal- Mart terminated Mr. Spiker's employment. (Id. ~ 46.) Further, Mr. Spiker's commercial driving record on tile with the DOT was impacted negatively by the drug test. (Id. ~ 48.) He is now subject to additional restrictions and requirements from the DOT. (Id. ~ 50.) Prior to his termination, Spiker earned an annual salary ofS92,500 with additional health and retirement benefits. (Id. ~ 31.) Foliowing his termination, Mr. Spiker was unemployed for approximately eight weeks. (Id. ~ 51.) Although he found new employment, it was at a lower salary of $45,000 and a lower level of health and retirement benefits. (Id. ~ 52.) *2 Mr. Spiker and his wife, Denise Spiker, brought an action against Defendants in the Maricopa County Superior Court on April 6, 2012. (Doc. 1- 3.) The Spikers had named Clinical Reference Laboratory as a Defendant in the original state court complaint but removed the party in their amended complaint. (Docs. 1- 1, 1- 3.) Dr. Kracht removed the action to this Court on February 14,2013, and ali Defendants stipulated to the removal. (Doc. I.) On April 2, the Spikers tiled a Second Amended Complaint (the "SAC") alieging claims of negligence against ali Defendants and negligent training and WESTLAW © 2016 Thomson Reuters. No claim to onglnal U.S. Government Works. 1 Spiker v. SanJlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 36 IER Cases 1120 supervision against Wal- Mart, eScreen, and BMC. (Doc. 14 ~, 58- 80.) All Defendants now move to dismiss the SAC. DISCUSSION I. MEET AND CONFER The Court ordered the Parties to "meet and confer prior to the filing of a motion to dismiss to determine whether it can be avoided ." (Doc. 3 at I.) The Court further ordered that "motions to dismiss must contain a certification of conferral indic.ting that the parties have conferred to determine whether an amendment could cure. deficient pleading, .nd have been un.ble to .gree th.tthe ple.ding is curable by a permissible .mendmenl.. .. Motions to dismiss that do not cont.in the required certific.tion .re subject to be stricken on the Coun's motion." (ld at 1- 2.) Defendants BMC, Padilla, eScreen, and Dr. Kracht did not attach a certification of conferral to their Motions. After the Spikers alerted the Court to that deficiency in their Response, Defendants attached a joint certification to their Reply briefs. (Doc. 36-1, Ex. 10.) In this circumstance, and because the requirement is new, the Court will review the adequacy of the certification. In the certification, Defendants contend that they participated in Ulengthy and numerous discussions with Plaintiffs' counsel with respect to deficiencies in Plaintiffs' [First Amended Complaint] prior to filing of their Motions to Dismiss." (ld at 2.) Defendants funher contend th.t.1I panies p.rticipated in a conference call on March 2, 2013,to discuss each pany's respective issues with the First Amended Complaint and whether any deficiencies could be cured through amendment. The Spikers argue, however, that at the time of the March 2 conference, Wal- Man was the only pany that had filed a Motion to Dismiss and only issues that penained to that Motion were discussed at the conference; none of the issues presented in Defendants' other Motions were raised at that time. In addition to the March 2 conference, Defendants state that eScreen and Dr. Kracht have had "numerous other phone calls and exchanged multiple emails with Plaintiffs' counsel on other deficiencies with Plaintiffs' [First Amended Complaint]." (ld) At the end of this exchange, "the parties agreed to disagree as to some other issues of law with the understanding that each party would be filing motions to dismiss after [the SAC] was filed." (ld) "3 Although the Parties dispute what issues were raised in the March 2 conference, it is not disputed that Defendants have conferred with the Spikers regarding deficiencies in the First Amended Complaint and that the Spikers have once amended their Complaint in response to those conversations. Defendants may not have informally raised every issue peninent to the Complaint that is raised in their Motions but the obligation to meet and confer does not include an obligation to assist the Spikers in carefully drafting a second amended complaint. The Court finds that the Defendants complied with their obligation to meet and confer with the Spikers prior to filing their Motions and will consider the merits of Defendants' arguments. II. LEGAL STANDARD Rule 12(b)(6) is designed to "test the legal sufficiency ofa claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than "Iabels and conclusions" or a "formulaic recitalion of the elements ofa cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speCUlative level." Bell All. Corp. v. Twombly, 550 U.S. 544,555 (2007). While"a complaint need not contain detailed factual allegations ... it must plead 'enough facts to state a claim to relief that is plausible on its face.' " Clemens v. DoimlerChrysler Corp .. 534 F.3d 1017, 1022 (9th Cir.2008) (quoting Twombly. 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (citing Twombly. 550 U.S. at 556). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id When analyzing a complaint for the failure to state a claim under Rule 12(b)(6), "[a]1I allegations of material fact are taken as true and construed in the light most favorable to the nonmoving pany." Smith v. Jackson. 84 F.3d 1213, 1217 (9th Cir.1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and ilconclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Parelo 11. FDIC. 139 F.3d 696, 699 (9th Cir.1998). III. EXHAUSTION WESTLAW © 2016 Thomson Reuters. No claim to original U.S . Government Works. 2 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WI. 5200209, 36IER Cases 1120 The general rule is that parties must exhaust prescribed administrative remedies before seeking relieffrom the federal courts. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992) (internal citations omitted); Minor v. Cochise Cnty.. 125 Ariz. 170, 172,608 P.2d 309, 311 (1980) ("It is a well recognized principle of law that a party must exhaust his administrative remedies before appealing to the courts."). The rule "is a salutary one allowing agencies to exercise their expertise, to correct their own errors, and to provide relief that may be both swifter and more satisfactory than relief available through more formal litigation." Payne v. Peninsula Sch. Dist .. 653 F.3d 863, 878 (9th Cir.201 I) cert. denied, 132 S.C!. 1540, 182 L.Ed.2d 161 (2012). "Notwithstanding these substantial institutional interests, federal courts are vested with a virtually unflagging obligation to exercise the jurisdiction given them. McCarthy, 503 U.S. at 146 (internal quotation marks and citation omitted). Therefore, exhaustion may not be required "in some circumstances even where administrative and judicial interests would counsel otherwise." /d "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt v. Terhune, 315 F.3d 1108, I I 19-20 (9th Cir.2003). ·4 Wal-Mart contends that Mr. Spiker did not exhaust his administrative remedies before seeking relief from this Court. One of these remedies is to complain to the Chief Safety Officer of the Federal Motor Carrier Safety Administration (the "FMCSA ") that a "substantial violation" of the FOTETA and the DOT regulations is occurring or has occurred within the preceding 60 days. See 49 C .F.R. § 386.12(a). A substantial violation is defined as "one which could reasonably lead to, or has resulted in, serious personal injury or death." /d The Officer has the discretion to initiate proceedings and investigate the complaint if it meets that standard. /d § 386.12(b). The other administrative remedy is that an employee may request a test of the split specimen within 72 hours of being notified by the MRO that the employee has a verified positive drug test. /d § 40.171 (a). The Supreme Court has recognized that the interests of the individual may weigh heavily against requiring administrative exhaustion before filing suit if "Bn administrative remedy may be inadequate because of some doubt as to whether the agency was empowered to grant effective relief." McCarthy, 503 U.S. at 147. Mr. Spiker was not able to obtain relief from the FMC SA by filing a complaint pursuant to Section 386.12. WalMart's alleged negligence did not amount to a "substantial violation" or relate to a "fatal flaw" under Section 40.199 triggering cancellation of Mr. Spiker's drug test. The remedy would not redress a complaint of negligence below that level. Further, even if Mr. Spiker had requested a split specimen test from the MRO it would not have accounted for the alleged flaws in his drug test that supposedly led to a positive result: the mislabeling or belated sealing of his specimens. Had Mr. Spiker pursued administrative remedies before filing suit rather than afterwards, they would have proven futile. The inadequacy of the remedies to redress the alleged conduct are further evidenced by an FMCSA letter sent to Mr. Spiker in response to his July 8, 2012 request for an administrative hearing. An FMCA Associate Administrator replied on August 7 that "the FMCSA does not offer administrative hearings to challenge positive drug test results." (Doc. 29- I, Ex. A.) More importantly, he explained that "[t]he only person who can change the outcome of a DOT drug test is the [MRO]" but that "[Mr. Spiker's] noncompliant allegations involving the collector are not sufficient, even if proven, to cancel the DOT positive drug test result." /d He advised Mr. Spiker to instead consider pursuing civil litigation if he had evidence to support his allegations. /d On May 14,2013, the Office of the General Counsel of the DOT confirmed that Mr. Spiker had exhausted remedies provided by the DOT regulations. (Doc. 29-1, Ex. B.) Because the administrative remedies were inadequate to address the Spikers' negligence claims against Wa1-Mart, Mr. Spiker was not required to exhaust them before filing this action. The Spikers may seek relief for Wal- Mart's alleged negligence in this Court. IV. WRONGFUL TERMINATION ·S Wal- Mart asserts that the Spikers' claims of negligence and negligent training and supervision against it amount to a wrongful termination claim. The Spikers refer to wrongful termination in their SAC and Mr. Spiker's termination is the alleged harm related to Wal- Mart's conduct. Accordingly, Wal- Mart argues, the Spikers' allegations should be considered under the Arizona Employment Protection Act (the "A EPA") and the requirements to state an AEPA claim under A.R.S. § 23- 1501. The Spikers do not base their claims on the circumstances in which Mr. Spiker was terminated. Instead, they allege that Wal- Mart was negligent in implementing a drug testing program and in supervising and training its service agents which led to a false positive drug test and Mr. Spiker's WESTLAW © 2016 Thomson Reuters. No claim 10 original U.S. Government Works 3 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 361ER Cases 1120 tennination.ln other words, the Spikers allege that Mr. Spiker was tenninated based on a wrongful drug test and that Wal- Mart's negligent conduct was the cause of the wrongful drug test. Therefore, the Spikers' negligence claims against Wal- Mart are just that. To the extent the Spikers allege wrongful tennination in their SAC, (see Doc. 14 , 31), they have disavowed such a claim in their Response to Wal- Mart's Motion, (Doc. 29 at21), and it is dismissed without prejudice. V. NEGLIGENCE A. Preemption The Supremacy Clause provides that the United States Constitution and the laws promulgated through its procedures are the supreme law of the land. See U.S. Const. Art. VI, cl. 2. Federal law may preempt state law under the Supremacy Clause in three ways: (I) Congress expressly preempts state law; (2) Congressional intent to preempt is inferred from the existence of a pervasive federal regulatory scheme; or (3) state law connicts with federal law or its purposes. English v. General £lee. Co .• 496 U.S. 72, 78- 79 (1990). "[T]he purpose of Congress is the ultimate touchstone in every pre-emption case." Medtronic. Inc. v. Lohr. 518 U.S. 470, 485 (1996). (internal quotation marks and citation omitted). Federal regulations, such as those at issue here, have the same preemptive effect as federal statutes. See Capital Cities Cable. Inc. v. Crisp. 467 U.S. 691, 699 (1984). Nevertheless, a presumption against the pre-emption of state police power regulations applies to state common law tort claims. Cipollone v. Liggell Group. Inc .. 505 U.S. 504, 518 ( 1992). I. Express Preemption uBecause the FOTETA contains an express preemption clause, we focus in the first instance on the plain language of the statute, because it necessarily contains the best evidence of Congress' pre-emptive intent." Chapman v. Lab One. 390 F.3d 620, 625 (8th Cir.2004). The Act and the regulations implementing it contain express preemption clauses. The Act states, in relevant part: A state or local government may not prescribe or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed IInder this section However, a regulation prescribed under this section may not be construed to preempt a State criminal law that imposes sanctions for reckless conduct leading to loss oflife, injury, or damage to property. '6 49 U.S.C. § 31306(g) (emphasis added). The DOT regulations provide: (a) Except as provided in paragraph (b) of this section, this part preempts any State or local law, rule, regulation, or order to the extent that: (I) Compliance with both the State or local requirement in this part is not possible; or (2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this part. (b) This part shall not be construed to preempt provisions of State criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees, employers, or the general public. 49 C.F.R. § 382.109 (emphasis added). The Secretary of Transportation has stated that "the purpose of preemption is to avoid the confusion and expense of inconsistent requirements for employers or testing entities that operate in several States and to prevent interference with the functioning of the Federal program by extraneous, burdensome requirements that may defeat its purpose and benefits by making effective implementation difficult or impossible." Rector v. LabOne. Inc.. 208 F.Supp.2d 987, 992 (E.D.Ark.2002) (quoting Limitation on Alcohol Use by Transportation Workers. 59 Fed.Reg. 7302, 7317 (Feb. 15, 1994)). "[A] party claiming preemption under this statute has the burden of demonstrating that the putatively preempted law is 'inconsistent' with the federal regulations." Ishikawa v. DeltaAirlines.lnc .• 343 F.3d 1129, 1132, opinion amended on denial ofreh 'g. 350 F.3d 915 (9th Cir.2003). The Spikers assert claims of negligence and negligent training and supervision against WaJ.-Mart. They contend that Wal- Mart breached its duty to exercise reasonable care during the process of implementing and administering a drug testing program, collecting urine samples, preserving a valid chain of custody, andlor otherwise ensuring accurate drug test results. Further, the Spikers allege that Wal- Mart breached its duty to exercise reasonable care during the course of training and supervising BMC and its employees, and ensuring that those WESTLAW © 2016 Thomson Reuters. No claim to onginal U.S. Government Works. 4 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209, 361ER Cases 1120 employees were properly credentialed in accordance with Ihe DOT regulalions. In ils Response to Wal- Mart's Motion, the Spikers maintain that their claims "arise enlirely out of negligence by Wal- Mart during the selection, training, and supervision of its collection site, BMC.") (Doc. 29 at 21.) The Ninth Circuil has not addressed whether a state law tort claim brought against an employer based on a drug test conducted by a third party is preempted by Ihe FOTETA. 4 The issue then is whether Ihe Spikers' negligence claims against Wal- Mart seek to impose standards inconsistent with the DOT regulations or serve as an obstacle to the accomplishment and execution of their requirements. See 49 U.S.C. §§ 382.109(a)(2), 31306(g). The Spikers' claims are based on a theory that Wal- Mart was negligent in implementing and administering its drug testing program and in selecting, training, and supervising the specimen collection site, BMC, and its employees. The DOT regulations state that "[e)ach employer shall ensure that all alcohol or controlled substances testing conducled under this part complies with the procedures sel forth in [Part 40)." Id § 382.105. The regulations, however, "expressly contemplale[ ) employer delegation of responsibility for many aspeclS of testing." Carroll v. Fed Exp. Corp.. 113 F.3d 163, 166 (9th Cir.l997). S '7 In that regard, an employer may discharge its responsibilities for ensuring its drug testing program comports with the regulations either by (I) administering its own program within the guidelines of 49 C.F.R. § 40 or (2) hiring qualified service agents to perform testing, see id § 40.15. Carroll, 113 F.3d at 166 n. 2 (citing to prior versions of these provisions). In 2001, the DOT revised Part 40 and added provisions regarding an employer's responsibility to ensure that its service agents comply with the regulations. Section 40.11 states Ihot an employer is "responsible for all actions of [its) officials, representalives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations." Further, the revised Part 40 states that an employer is "responsible for ensuring that the service agents [it) uses meet the qualifications set forth in this part (e.g., § 40 .121 for MROs)." 49 C.F.R. § 40.15(b). It goes on to state that "[an employer) remain[s) responsible for compliance with all applicable requiremenls of this part and other DOT drug and alcohol lesting regulalions, even when [il) use[s) a service agenl." Id § 40.15(c). But before publishing Ihe revisions, Ihe Secretary clarified that the new provisions do not require employers "to have active monitoring responsibilities with respect to service agents, though employers may choose 10 monilor their service agents' performance." Dept. of Transp., Procedures for Transp. Workplace Drug alld Alcohol Testillg Programs. 65 FR 79462-0 I al 79484 (December 19, 2000). Rather, employers are required "simply to make sure Ihat service agents meet regulalory qualificalions. To this end, employers may ask 10 see documentation from service agents, who are obligated to provide it." Id. Requiring an employer, Ihrough common law tort liability,to supervise and train service agents would thus be inconsistent with Ihe DOT regulations. Further, Ihe regulalions sel out a remedial process if a service agenl does not comply with Ihe same in which the DOT may impose sanctions on Ihe employer. 49 C.F.R. § 40.15(c). "State law cannot 'enlarg[e) orenhanc[e)' the regulations 10 impose burdens more onerous than those of the federal requiremenls on maMers addressed by the federal regulations." Drake. 458 F.3d at 65 (quoling Americall Airlilles, Illc. v. /l'olells, 513 U.S. 219, 233 (1995)) (preempting claims asserting Ihat conduci addressed by drug testing regulations was Uwrongful" under state law though that conduct did not violate Ihe regulations). WalMart hired service agents to administer and conduct its drug testing program. To the extent the Spikers seek to hold Wal- Mart liable for negligenl supervision and lraining of those agents, such claims are expressly preempted by the FOTET A and dismissed wilh prejudice. The Spikers also allege Ihat Wal- Mart was negligenl in failing to ensure that BMC was credentialed in accordance with the DOT regulations. As an employer, Wol- Mart is required 10 "ensur[e) that the service agents [il) uses meet Ihe qualifications sel forth in [the regulations)." 49 C.F.R. § 40.IS(b). Wal- Mart acknowledges that it is obliged "to choose accredited service agents." (Doc. 37 aI5.) Therefore, the Spikers' claim that WalMart was negligent in fulfilling thot requirement is nol inconsislent with the regulations. That claim is not expressly preempted by the FOTETA. 2. Implied Preemption *8 Wal- Mart asserts Ihollhe Spikers' claims are preempled due 10 extensive federal regulation in Ihe arena of drug testing of transportation employees. "[P)reemption may be inferred when federal regulalion in 0 particular field is so pervasive as 10 make reasonable Ihe inference Ihat Congress len no room for the Slates to supplement it. In such cases of field preemplion, Ihe mere volume and complexity of federal regulations demonstrate nn implicit congressional intent to displace all state law." Aguayo v. U.S. Balik. 653 F.3d 912, WESTLAW © 2016 Thomson Reulers. No claim 10 onginal U.S. Governmenl Works. 5 Spiker v. San)lvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WI. 5200209. 36IER Cases 1120 918 (9th Cir.2011) eerl. denied, 133 S.Ct. 106, 184 L.Ed.2d 23 (2012) (internal quotation marks and citation omitted). In its Motion, Wal- Mart largely argues for implied preemption regarding the Spikers' claim that Wal- Mart was negligent in training and supervising BMC. (See Doc. 21 at 6--10.) But as stated above, those claims are expressly preempted by the FOTETA. The remaining claim against Wal- Mart is that it was negligent in verifYing that BMC was qualified to serve as a drug tesling agent. "[O]rdinarily when Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when the provision provides a reliable indicium of congressional intent with respect to state authority there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislalion." Ishikawa, 343 F.3d at 1133 (internal alterations and citation omitted). In Ishikawa. the Ninth Circuit stated that Ihe FOTETA's provision thaI expressly preempts state laws inconsistent with the Act, 49 U.S.C. § 3 \306(g), "impl[ies] that Congress intentionally did not preempt state law generally." Id. (internal citation. Id. Accordingly, the court held that the "common law duty to exercise reasonable care to avoid harming people by negligence applies" 10 drug testing of employees unless the imposition of such a duty is inconsistent with the FOTETA. Although Ishikawa involved the FAA's implementing regulations, the same rationale applies to the DOT regulations at issue here. Therefore, there is no implied preemption of the Spikers' claim that Wal- Mart was negligent in ensuring that BMC was a qualified service agent. 6 7 B. PRIMA FACIE CASE Defendants BMC and Padilla, Dr. Kracht, and eScreen move to dismiss the Spikers' negligence claims against them. In Arizona, a plaintiff must prove four elements to state a prima facie case for negligence: "( I) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, 150 P.3d 228, 230 (2007) (internal citations omitted). The existence of a duty is a matter of law for the Court's determination. Id. (internal citations omitted). The other elements, including breach and causation, are factual issues usually decided by thejury.ld. (internal citations omitted). I. Duty '9 "Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained." Id. (internal citations omitted). Whether a duty exists is a mailer of law for the Court to decide. Lips v. Seollsdale Heallheare Corp., 224 Ariz. 266, 268, 229 P.3d 1008, 1010(2010).lftheCourt holds that no duty exists, "the defendant is not liable even though he may have acted negligently in light of the foreseeable risks." Markowilz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985); see Gipson, 214 Ariz. at 143- 44. In determining the whether a duty exists, "the question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Markowilz, 146 Ariz. at 356. The Arizona Supreme Court has held that a duty of care may arise from. among other sources, special relationships based on contract, family relations, or conduct undertaken by the defendant, public policy to prevent future harm, or the existence of a statute criminalizing conduct. Gipson, 214 Ariz. at 145--46 (internal citations omitted). Foreseeability of hann, however, is not a factor to be considered when making determinations of duty.ld. at 144; Rilehie v. Krasner, 221 Ariz. 288, 298, 211 P.3d 1272, 1282 (Ct.App.2009). In detennining the existence of a duty, Uthe requirement of a formalized relationship between the parties has been quietly eroding" in Arizona. Sianley v. McCarver, 208 Ariz. 219,221 - 22,92 P.3d 849, 851- 52 (2004) (internal citations omilled). "When public policy has supported the existence of a legal obligation, courts have imposed duties for the protection of persons with whom no preexisting relationship existed." Id. In addition, courts may consider "the reasonable expectations of parties and society generally. the proliferation of claims , the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of now channels of liability." Werlheim v. Pima Cn/y., 211 Ariz. 422, 427, 122 P.3d 1,6 (Cl.App.2005) (internal citations omitted). Whether service agents, such as collectors and their employees, MROs, and thirdparty administrators, owe a duty of care to an employee whose specimen they collect and test at the request of an employer is an issue of first impression in Arizona. "In the absence of controlling forum state law, a federal court sitting in diversity must use its own best judgment in predicting how the state's highest court would decide the case." Takahashi v. Loomis Armored Car Serv .. 625 F.2d 314, 316 (9th Cir.1980) (internal citations omitted). WESTLAW © 2016 Thomson Reuters No claim to onginal U.S. Government Works. 6 Spiker v. SanJlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WI. 5200209. 36 IER Cases 1120 "In so doing, a federal court may be aided by looking to well-reasoned decisions from other jurisdictions." (Id .) (internal citations omitted). While Arizona courts "are not bound by the law as announced in other jurisdictions, [they) may look to those jurisdictions for guidance on this issue." State v .. Emerson. 171 Ariz. 569, 571, 832 P.2d 222, 224 (Ct.App.1992); Shulansky v. Michaels. 14 Ariz. 402, 405, 484 P.2d 14, 17 (Ct.App.1971) ("[The court) may therefore look to decisions from sister states in search of common law rules.") (internal citations omitted). The Court will analyze the existence of a duty of reasonable care in relation to each type of service agent in tum. i. BMC and PadillA '10 In their Motion, BMC and Padilla do not challenge the existence of a duty of care to Mr. Spiker. The existence of a duty, however, must be determined prior to addressing the question of whether there was a breach of that duty causing the alleged harm. Therefore, the Court considers whether BMC and Padilla owed a duty of care to Mr. Spiker. Upon receiving a specimen from an employee, B collector prepares the specimen for testing and completes a CCF to record the chain of custody until the specimen is sent to a laboratory for testing. See generally 49 C.F.R. §§ 40.41-40.73. Arizona courts have not addressed whether a collector owes a duty to an employee whose specimen it prepares. But other jurisdictions recognize a duty of care that extends either from a collector or laboratory to an employee even if that service agent performs its role at the request of an employer. See Cooper v. Lab. Corp. of Am. Holdings. Inc., 150 F.3d 376, 379 (4th Cir.1998) (collecting cases); Santiago v. Greyhound Lines, Inc .. 956 F.Supp. 144, 152 (N.D.N.Y.1997); Quisenberry v. Compass Vision. Inc .. 618 F.Supp.2d 1223, 1228- 31 (S.D.CaI.2007); Chapman v. Labone. 460 F.Supp.2d 989, 1001 (S.D.lowa 2006). But see, e.g .. Tricoski v. Laboratory Corp. of Amer., 216 F.Supp.2d 444, 445-46 (E.D.Pa.2002); Ney v. Axe/rod. 723 A.2d 719, 722 (Pa.Super.Ct.1999). The rationale in cases that hold that a laboratory owes a duty of care to an employee is germane to the issue of whether a collector owes a similar duty. Both collectors and testers are required to ensure the integrity and accuracy of the drug testing process and must be qualified to do so. See 49 C.F.R. § § 40.31, 40.81. In Ishikawa. an employee alleged that a laboratory's negligence in conducting her drug test led to her termination. 343 F.3d at 1130- 31. Importantly, after holding that the employee's negligence claim was not preempted, the Ninth Circuit noted that the "common law duty to exercise reasonable care to avoid harming people by negligence" applied to a laboratory'S testing and reporting of results related to an employee'sspecimen.ld at 1134. Along with authorities in other jurisdictions, Ishikawa demonstmtes that in Arizona a collector owes a duty of care to an employee whose specimen it prepares. Arizona courts consider the state's public policy to prevent future harm in determining whether a duty of care exists. Gipson, 214 Ariz. at 145 (citing Stanley. 208 Ariz. at 221). Public policy warrants the imposition of a duty on collectors to prepare specimens with reasonable care. There is great risk of harm to an employee from a specimen that is prepared in a negligent manner. See £Iliolt v. Lab. Specialists, Inc .. 588 So.2d 175, 176 (La.Ct.App.I99I) (finding that the "risk of hann in our society to an individual because of a false-positive drug test is so significant that any individual wrongfully accused of drug usage by his employer is within the scope of protection under the law"). As is the case for Mr. Spiker, an employee may be terminated if there is a false positive drug test report. The employee may also be significantly hindered in his or her efforts to find other employment because of the report. Further, a collector is in a better position "to guard against the injury" as it is solely responsible for the preparation of specimens. See Stinson v. Physicians Immediate Care, Ltd. 269 III.App.3d 659, 664- 65 (III .Ct.App.1995) (applying that rationale to alaboratory's position in the process). In addition, the collector, which is compensated for preparing the specimens, "is better able to bear the burden financially than the individual wrongly maligned by a false positive report." Id '11 If there was no duty of care imposed on a collector, numerous employees would be left without an opportunity to redress a drug test based on a negligently prepared specimen and the severe consequences for employees from a false positive report resuiting from such a test. Importantly, the DOT regulations contemplate the existence of claims brought by employees against service agents such as collectors. Employers and service agents are prohibited from requiring an employee "to sign 8 consent, release, wBiver of liability. or indemnification agreement with respect to any part ofthe drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO, and SAP services)." 49 C.F.R. §§ 40.27, 40.355(a). Thus, public policy supports holding a collector "accountable to the individuals whose specimens it [collects)." Quisenberry, 618 F.Supp.2d at 1230 (internal citation omitted). WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Spiker v. SanJlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 361ER Cases 1120 ii. Dr. Kracht As an MRO for eScreen, Dr. Kracht was responsible for reviewing Mr. Spiker's specimen. Under the DOT regulations, an MRO provides a quality assurance review of the drug testing process for the specimens under the MRO's purview. 49 C.F.R. § 40.123(b).ln that role, an MRO evaluates the CCF for each specimen to determine whether there is a naw that may cause a test to be cancelled, determines whether there is a legitimate medical explanation for confirmed positive drug test results, and provides feedback to employers, collection sites and laboratories regarding performance issues where necessary. Id. § 40.123(b)(I)-(2), (c). Dr. Kracht contends that he did not owe a duty of care to Mr. Spiker because in reviewing Mr. Spiker's positive drug test, he acted for the benefit of Mr. Spiker's employer, Wal- Mart, and not for benefit of Mr. Spiker. In support, Dr. Kracht relies on Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (CI.App.1995), in which the plaintiff brought a negligence claim against a psychologist that conducted an independent medical examination of the plaintiff on behalf of his employer's workers' compensation carrier. The court held that the psychologist did not owe the plaintiff a duty of care because "a medical malpractice suit such as this will lie only when there was a doctor/patient relationship creating a duty to act for the patient's benefil." Id. at 391. In Diggs v. Ari=ona Cardiologisls. Ltd.. however, the Arizona Court of Appeals characterized the holding in Hafner as on the U narrow basis" that ua doclor who conducts an independent medical examination and does not ·intend to treat, care for or otherwise benefit the employee' has no duty to that person." 198 Ariz. 198,201,8 P.3d 386, 389 (CI.App.2000) (quoting Hafner. 185 Ariz. at 392). The Court further noted that Hafner "states that because the defendant rendered no treatment, the relationship between the parties was so attenuated that, for policy reasons, the plaintiff was not entitled to protection." Id. *12 Hafner is inapposite in these circumstances. This case involves a termination based on a drug test that the Spikers claim was negligently reviewed by the MRO assigned with the responsibility to verify drug test results. Under the federal regulations, an MRO such as Dr. Kracht is to "act [ 1 as an independent and impartial 'gatekeeper' and advocate for the accuracy and integrity of the drug testing process." 49 C.F.R. § 40.123(a). The MRO provides a conclusive check by validating all drug test results that he or she receives from the laboratory. In fact, an employer may not remove an employee from the performance of safety-sensitive functions until the MRO has completed verification of a positive drug test resull. One of the reasons for requiring such verification is to avoid the "unfair stigmatization of an employee as a drug user." Dep. of Transp., Procedures for Transp. Workplace Drllg and Alcohol Tesling Programs, 65 FR 79462-01 at 79463. In mandating MRO review, the Secretary attempts to reach a "regulatory balance between safety interests and the protection of employees from unfair consequences of the process." Id at 79464. Thus, the MRO review prO<:ess is in part for the benefit for the employee. Even if it was not, there is a relationship between the MRO and an employee whose specimen the MRO reviews entitling the employee to protection under the law. Further, the Court has determined that a collection site owes a duty to an employee; there is no reason to distinguish a MRO that verifies a drug test based on the specimen from the site that collects the specimen. Both types of service agents playa vital role in ensuring that test results are reported accurately to employers as such results are "often a pre-requisite to being hired, promoted, or even continuously employed." Quisenberry. 618 F.Supp.2d at 1230 (noting that in cases of inaccurate reporting, "[ e]mployees can lose their jobs, and job applicants can miss out on an opportunity to be considered for a new position or 8 well~deserved promotion."). Therefore, the Court concludes that an MRO owes a duty of care to an employee whose specimen the MRO reviews. iii. eScreen The Spikers assert that as a TPA of Wal- Mart's drug testing program, eScreen was responsible for selecting, hiring, training, andlor supervising the site that collected the drug test specimens from employees, and the MROs that verified drug test results. The Spikers seek to hold eScreen primarily liable for failing to ensure that BMC and its employees were properly credentialed and trained pursuant to the DOT regulations and vicariously liable for Dr. Kracht's allegedly negligent review and verification of the drug test results. eScreen contends that any duty of care in selecting a collector that employed personnel who were properly credentialed and trained ran only to Wal- Mart and not Mr. Spiker. In administering the drug testing program on behalf of an employer, a TPA plays a critical role in ensuring that the service agents that conduct the tests comply with the DOT regulations. The regulations themselves do not make distinctions among service agents and state that "[a]s a service agent, the services you provide to transportation employers WESTLAW © 2016 Thomson Reuters No claim to 0li9inal U.S. Governmenl WOlks. 8 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 361ER Cases 1120 must meet the requirements of ... the DOT agency drug and alcohol testing regulations." 49 C.F .R. § 40.341. As discussed above, there are suffiecient reasons to hold service agents accountable to employees for proper drug testing even if they are serving employers. Thus, taking the allegations in the SAC as true, the Court holds that eScreen owed a duty of care to Mr. Spiker. 2. Breach i. Standard or Care '13 "[N)egligence is conduct which falls below the standard established by law for the protection or others against unreasonable risk of harm." Restatement § 282. Even if a person owes a duty of care to another, it is a distinct issue whether the standard of reasonable care has been met in a particular case. That standard has been defined as "[w)hat the defendant must do, or must not do ... to satisfY the duty." Gipson v. Kasey, 214 Ariz. 141, 143, 150 P.3d 228, 230 (2007) (internal citations omitted). Whether the defendant has met the standard, or in other words, whether there has been a breach of duty, is an issue of fact determined by the specifics of the individual case. Id The Court may, however, "rule as a matter or law when no reasonable juror could conclude that the standard of care was breached .... " Grajilli- Valenzllela ex rel Grajilli v. City of Phoenix. 216 Ariz. 454, 458, 167 P.3d 711, 715 (Ct.App.2007) (internal quotation marks and citations omitted). The standard of reasonable care may be established by (I) statute or regulation; (2) adopted by the Court from a statute or regulation; (3) established by judicial decision; or (4) applied to the facts of the case. Restatement § 285. Here, the conduct or service agents is governed by the FOTETA and DOT regulations. The Restatement states that a court may adopt as the standard of care the requirements ofa statute or regulation whose purpose is exclusively or in part: (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results. Restatement § 286; see Tellez v. Saban, 188 Ariz. 165, 169, 933 P.2d 1233, 1237 (Ct.App.1996) (citing the Restatement elements). The purpose of a statute may be determined by reference to its title, preamble, detailed provisions, or history, among other sources. Restatement § 286 cmt. f. The express purpose of the FOTETA is "to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles." 49 C.F.R. § 382.101. Further, the implementing regulations were prescribed by the DOT "[i)n the interest of commercial motor vehicle safety." Id § 31306(b). As discussed above, the regulations aim to achieve a regulatory balance between safety interests and the protection of employees. The purpose of the regulations, however, is to protect the public at large and not to protect employees such as Mr. Spiker who are tested according to the requirements set out therein. The regulations do not set out the minimum standard of care to determine whether there has been a breach of the duty of care owed to an employee. See Drake, 458 F .3d at 57 ("Although they set out elaborate rules for conducting drug tests, the DOT regulations do not specifically address negligence on the part of drug-testing laboratories or otherwise establish the minimum standard of care to be exercised by laboratory personnel."). '14 Service agents generally "owe[ ) a duty of reasonable care to persons whose specimens [they) test[) ror employers or prospective employers." Stinson v. Physicians Immediate Care, Ltd .. 269111.App.3d 659, 665 (1995); see Ishikawa. 343 F .3d at 1134 (noting that "the "common law duty to exercise reasonable care to avoid harming people by negligence" applies to service agents). Further, ror those with special skills or training, the standard of care imposes "the higher obligation to act in light of that skill, training, or knowledge." Stanley. 208 Ariz. at 224. The DOT regulations state that service agents must ensure "the services [they] provide to transportation employers ... meet the requirements orthis part and the DOT agency drug and alcohol testing regulations." 49 C.F.R. § 40.341. The regulations also require service agents to be qualified and their personnel to meet training requirements as outlined therein. See. e.g., id §§ 40.33 (collector), 40.41 (collection sites), 40.121(MRO). Thus, service agents must act with reasonable care in light of that training when conducting drug tests. Although the DOT regulations do not set out the minimum standard of care and a violation of their requirements is not negligence per se, the regulations provide guidance as to the standard of reasonable care. WESTLAW © 2016 Thomson Reuters. No claim to Original U.S. Government Works. 9 Splkerv. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209, 36 IER Cases 1120 ii. BMC and Padilla In their SAC, the Spikers allege that BMC and Padilla failed "to ensure that Mr. Spiker's sample was validly collected, labeled, stored, shipped, andlor tested." (Doc. 14 ~ 36.) The factual allegations are (I) that Padilla did not place a tamper- evident seal onto Mr. Spiker's specimen bottle before Mr. Spiker initialed it as required by Section 40.71, (id ~ 37), and (2) that Padilla was not properly credentialed and trained as collectors as required by Section 40.33, (id. ~~ 38,75- 77). BMC and Padilla contend that the Spikers' allegation that Padilla affixed the seal after Mr. Spiker initialed it is controverted by Mr. Spiker's certification on a CCF. Defendants attach that CCF to their Motion. The certification on the signed CCF by Mr. Spiker states: "I certifY that each specimen bottle used was sealed with a tamper-evident seal in my presence." (Doc. 20--1, Ex. I.) Even if the Court were to consider the CCF on a motion to dismiss, Mr. Spiker's certification directly contradicts the Spikers' allegation in the SAC that Padilla affixed the seal on the specimen after Mr. Spiker initialed it. Further, the SAC can be read to allege that regardless of the CCF certification, the seals were not affixed in Mr. Spiker's presence. These factual disputes are not properly determined at this stage of the proceedings. BMC and Padilla contend that even if Padilla did not follow the mandated procedure, the labeling and sealing were "substantially correct" so that her deviation does not amount to a breach. Defendants assert that incorrect sealing is a mere "procedural error" and is not one of the four Ufatal flaws" the DOT regulations list that require a drug test to be cancelled. See 40 C.F.R. § 40.199. 8 Although the regulations are not dispositive as to what conduct constitutes a breach, they are persuasive as to reasonable behavior in this highly regulated area of drug testing. A drug test is not cancelled even if the employee does not initial the tamper-evident seals at all; rather, the collector is required to note this failure to initial in the "Remarks" line of the CCF and complete the collection process. Id § 40.71. The proper sealing of a specimen, however, is essential to the chain of custody process that ensures the integrity of the specimen. See § 40.199(3) (stating that one of the fatal flaws is a broken specimen bottle seal or evidence of tampering with the seal). The collector is held to the higher obligation to act in light of mandated training to properly seal drug test specimens. Further, the CCF requires the collector to attest to the fact that the specimen was sealed in accordance with the DOT regulations. (See Doc. 20--1, Ex. I.) If there is no such attestation, the test is cancelled by the MRO. Id § 40.199(1). Because proper sealing procedure is important to maintain a reliable chain of custody and incorrect sealing is alleged in the SAC, the alleged facts thus state a breach of the duty of reasonable care. '15 The Spikers also allege that Padilla was not properly credentialed and trained as a collector as required by the DOT regulations. Only collectors that meet the training requirements set out in the regulations are authorized to collect specimens for DOT drug testing. Id § 40.31(a)-(b). Section 40.33 lists several training requirements for collectors including qualification training, an initial proficiency demonstration, refresher training, error correction training, and documentation. In light of the public policy embodied in the regulations to require all collectors to be qualified, Defendants' duty of reasonable care obliges them to comply with those requirements. The SAC alleges facts to make the reasonable inference that Padilla did not comply with the training requirements. For example, the Spikers allege that Padilla did not follow the sealing procedure outlined in the regulations and that she was not properly credentialed and trained when she collected Mr. Spiker's specimen. BMC was allegedly responsible for supervising and training Padilla. Therefore, the Spikers, at this point, have sufficiently alleged that BMC and Padilla breached their duties of care. iii. Dr. Kracht As discussed above, the MRO serves an important role in ensuring the reliability of the drug testing program. The Spikers allege that Dr. Kracht breached his duty of care by not fulfilling his oversight function under the regulations as to Mr. Spiker's specimen. Assuming Dr. Kracht's duty to Mr. Spiker obligated him to fulfill that function, the Spikers' allegations are conclusory and do not provide factual allegations to draw the inference that Dr. Kracht breached his duty. The Spikers allege that Dr. Kracht (I) "failed to take reasonable steps to execute his duties as MRO and failed to ensure that Mr. Spiker's urine sample was validly collected, labeled, stored, shipped andlor tested", (Doc. 14 ~ 39); (2) "did not satisfY the required credentials, basic knowledge, training, and responsibilities outlined in the federal regulations", (id ~ 40); (3) "failed to act as an 'independent and impartial gatekeeper and advocate for the accuracy and integrity of the drug testing process' ", (id ~ 41) (quoting 49 C.F.R. § 40.123(a)); (4) "failed to properly investigate obvious discrepancies in the chain of custody of Mr. Spiker's urine sample", (id ~ 64); and (5) "failed to WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209, 36 IER Cases 1120 properly investigate obvious problems with the credentials and training of BMC's employees, including Defendant Padilla", (id ~ 65). But there are no allegations as to how Dr. Kracht failed in these respects. The Spikers do not state how Dr. Kracht lacked the requisite credentials or training and failed his gatekeeping role, what discrepancies he failed to investigate, or what "obvious problems" he overlooked as to the qualifications ofBMC's employees. The only plausible "discrepancy" in the chain of custody to which the Spikers may be referring is the incorrect sealing by Padilla discussed above. But during a quality assurance review of specimens, the MRO is charged only with reviewing the CCF "for the purposes of determining whether there is a problem that may cause a test to be cancelled." 49 C.F.R. § 40.123(b)(I). The Spikers do not aliege that Dr. Kracht failed to review the CCF, ignored one of the four fatal flaws that would require a test to be cancelled, or that the CCF was lacking in any respect. Although the regulations do not determine the standard of care, the MRO is their creation. They do not make the MRO responsible for reviewing any and ali discrepancies in the chain of custody. Because the Spikers do not aliege other facts that Dr. Kracht breached his duty, their negligence claim against him is dismissed with leave to amend. iVa eScreen °16 The Spikers aliege that eScreen was negligent in selecting, hiring, and training andlor supervising BMC, Padilia, and Dr. Kracht. The Spikers have alleged facts that BMC and Padilla breached their duties of reasonable care through incorrect sealing and lack of training. Because the Spikers also allege that eScreen handled the selection, hiring, training, andlor supervision of BMC, they aliege facts that eScreen breached its duty of care to supervise and train BMC and Padilla. As to Dr. Kracht, however, the SAC does not sufficiently allege that he breached his duty of reasonable care; therefore, it does not state a negligence claim against eScreen for its supervision of Dr. Kracht. 3. Causation Arizona law holds that causation exists "if the defendant'S act helped cause the final result and if that result would not have happened without the defendant's oct." Ontiveros v. Borak. 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983) (internal citation omitted). Defendant's act need not have been a "large" or "abundant" cause of the final result; there is liability if the result would not have occurred but for defendant's conduct, even if that conduct contributed "only a little" to plaintiffs injuries. Id. (internal citation omitted). Plaintiff need only present probable facts from which the causal relationship reasonably may be inferred. Robertson v. Sixpence Inns of Am .. Inc .. 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990) (internal citation omitted). The Spikers allege causation. They allege that Padilla's incorrect sealing and lack of training caused Mr. Spiker's specimens to be contaminated or mistakenly identified, resulting in a false positive drug test. That test led to Mr. Spiker's termination of employment. Further, eScreen's and BMC's alleged failure to properly supervise and train Padilla led to her misconduct. Because the Spikers allege causation, they state a prima facie case for negligence against eScreen, BMC, and Padilla. VI. OTHER PLEADED CLAIMS BMC and Padilla contend that the Spikers have not stated claims for defamation and negligent infliction of emotional distress. The Spikers aliege in their SAC that "Defendants' negligence also ... defamed Mr. Spiker's public and professional reputation" and that "Defendants' negligence has caused ... emotional distress ...... (Doc. 14 ~ 53- 54.) In their Response, the Spikers state that they do not allege claims for defamation or negligent infliction of emotional distress. Those terms are alleged in the SAC as damages relating to Defendants' negligent conduct and not as separate claims. To the extent the SAC purports to state claims for defamation and negligent infliction of emotional distress, they are dismissed from this action. CONCLUSION The FOTETA preempts the Spikers' claims against Wal- Mart for negligent training and supervision but does not preempt their claim that Wal- Mart was negligent in selecting qualified service agents to implement its drug testing program. As to the negligence claims against the service agents, the agents owed a duty of reasonable care to Mr. Spiker. The SAC does not allege that Dr. Kracht breached his duty of care. It does allege that Padilla, eScreen, and BMC, through their deficient supervision and training of Padilla, breached that duty. Padilla did not foliow the proper sealing procedure outlined in the DOT regulations and was not trained by eScreen and BMC pursuant to the regulations. The SAC further alleges that the incorrect sealing and lack of training WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 Spiker v. Sanjlvan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 361ER Cases 1120 caused Mr. Spiker's injury, namely, a false positive drug test report and subsequent termination from employment. The Spikers thus state claims of negligence against eScreen, BMC, and Padilla, but not against Dr. Kracht. IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State a Claim of Defendants Buckeye Medical Center and Padilla (Doc. 20) is denied. '17 IT IS THEREFORE ORDERED that the Motion to Dismiss of Defendants Stephen Kracht, D.O., and eScreen (Doc. 19) is granted in part and denied in part. The claims against Defendant Kracht are dismissed with leave to amend. If Plaintiffs do not move to amend the Second Amended Complaint as to their allegations against Defendant Kracht within thirty (30) days, the Clerk of the Court is directed to terminate Defendant Kracht from this action. IT IS FURTHER ORDERED that the Motion to Dismiss Second Amended Complaint of Wal- Mart (Doc. 21) is granted in part and denied in part. All Citations Not Reported in F.Supp.2d, 2013 WL 5200209, 361ER Cases 1120 Footnotes 1 The request for oral argument by Defendants BMC and Padilla is denied because the Parties have had an adequate opportunity to discuss the law and evidence, and oral argu ent will not aid the Court's decision. See Lake at Las Vegas Investors Grp. v. Pac. Malibu Dev .• 933 F.2d 724, 729 (9th Cir.1991). 2 3 4 The Court takes as true the allegations contained in the Spikers' Second Amended Complaint at this stage of the litigation. Smith v. Jackson. 84 F.3d 1213. 1217 (9th Cir.1996). The Spikers contend that they are "merely seeking to hold Wal-Mart and the other Defendants accountable for their negligent failure to comply with specific federal regulations." (Doc. 29 at 20.) But looking "only at the face of the Complainf, Van Buskirk v. Cable News Network, Inc., 284 F.3d 977. 980 (9th Cir.2002). the Spikers bring claims against Wal-Mart for negligence in conducting the drug testing process and for negligent selection, training, and supervision of the service agents that conducted the drug testing. Thus. the Court will not interpret the Spikers' request as one for "relief under state law for [Wal-Mart's) alleged violations of federal regulations." Drake, 458 F.3d at 65. In suits maintained against laboratories conducting drug tests. the Ninth Circuit and other jurisdictions have held that negligence claims are not preempted. See, e.g., Ishikawa, 343 F.3d at 1133-34; Chapman, 390 F.3d at 627; cf. Drake v. Lab. Corp. of Am. Holdings. 458 F.3d 48. 65 (2d Cir.2006) (preempting claims based on substantive state common law standards but not claims requesting state law remedies for violations of federal law). In Ishikawa, an airline employee brought a negligence claim against a drug test laboratory for negligently handling her test specimen. 343 F.3d at 1130. The Ninth Circuit held that the FOTETA did not preempt the claim because its anti-waiver provision provides that "[t)he employee may not be required to waive liability with respect to negligence on the part of any person participating n the collection. handling. or analysis of the specimen." Id. at 1133 (citing 49 C.F.R. § 40.25(1)(22)(ii) (1998)). The court reasoned that "[n)egligence is a state common law tort. and it would make no sense for the regulation to prohibit requiring the employee to waive negligence claims if those claims were preempted and could not be made. This [anti-waiver provision) implies that such claims exist and are not preempted." Id. The court did not find implied preemption because "[d)espite the sensitivity and federal concern with urine testing ..... The common law duty to exercise reasonable care to avoid harming people by negligence applies [to such testing)." Id. at 1134. The anti-waiver provision central to the Ninth Circuit's preemption analysis in Ishikawa did not apply to an employer that delegates the drug testing process to a third party. The provision applied to "negligence on the part of any person participating in the collection. handling. or analysis of the specimen." Id. at 1133 (internal citation omitted) c emphasis added). In 2001, the DOT amended the regulations to state that an employer auld not require a waiver of liability "with respect to any part of the drug or alcohol testing process (including. but not limited to, collections, laboratory testing, MRO and SAP services)." 49 C.F.R. § 40.27. That provision. however, was enacted "to ensure that an employer, acting on behalf of a service agen~ could not require such a waiver." Chapman, 390 F.3d at 627. The Chapman court further noted that another court "had not takeTnj into account the anti-waiver provision" In its analysis because that case involved an action against an employer and the provision "is directed to negligence on the part of others involved in the collection. handling. and analysis of specimens." Id. at 628 (emphasis added). Wal-Mart was not "involved in the process of collection and analysis". id. at 627; the Spikers allege that BMC and eScreen conducted the drug test and WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 Spiker v. San/Ivan PLLC, Not Reported In F.Supp.2d (2013) 2013 WL 5200209. 361ER Cases 1120 reported the results to Wal-Mart. Thus the reasoning in Ishikawa, also followed by Chapman, that negligence claims are not preempted because of the anti-waiver provision, is inapposite as to the Spikers' claims against Wal-Mart. 5 In Carroll, the Ninth Circuit noted that under the regulations, an employer bears responsibility, inter alia, for the following: maintaining records for purposes of inspection by the Federal Highway Administrator, 49 C.F.R. § 382.401 ; testing a minimum annual percentage of drivers, id, § 382_305; testing a driver when the employer has reasonable suspicion he or she has violated the prohibitions on controlled substances, id_ § 382_307; and testing driver-applicants before hiring or using them, id_ § 382,301 , 113 F_3d at 166 n_ 2_ (citing to prior versions of these provisions), 6 In its Reply, Wal-Mart also argues that the Spikers' claims are preempted by the AEPA, A.R.S, § 23-2501 , et seq, But the Court need not consider that argument because it was not made in the Motion, See Delgadillo v, Woodford, 527 F,3d 919,930 n, 4 (9th Cir,2008) ("Arguments raised for the first time in [the] reply brief are deemed waived."), 7 Wal-Mart contends in its Reply. that to the extent the Spikers claim reputational damages against Wal-Mart based on the positive drug test result. that claim is preempted by the DOT regulations The Court also declines to consider that contention because it was not included in the Motion_ 8 The following are the fatal flaws: (1) There is no printed collecto~s name and no collecto~s signature; (2) The specimen 10 numbers on the specimen boltle and the CCF do not match; (3) The specimen boltle seal is broken or shows evidence of tampering (and a split specimen cannot be redesignated. see § 40,83(g)); and (4) Because of leakage or other causes, there is an insufficient amount of urine in the primary specimen boltle for analysis and the specimens cannot be redesignated (see § 40_83(g)), 49 C,F,R. § 40_199, End of Document C) 2016 Thomson Reuters. No daim to original U.S. Government Works. WESTLAW © 2016 Thomson Reuters, No claim to original U,S. Government Works, 13 Page I LexisNexisf> FRED LEROY PASTERNACK, PETITIONER v. MICHAEL P. HUERTA, ACT- ING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND NA- TIONALTRANSPORTATION SAFETY BOARD, RESPONDENTS No. J2-I1 II UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 513 Fed. Appx. I; 20/3 U.S. App. LEXIS 16802 March 22, 2013, Filed PRIOR HISTORY: [**1] On Petition for Review of an Order of the National Transportation Safety Board. Pasternack v. NTSB. 596 F.3d 836. 389 U.S. App. D.C. 266.2010 U.S. App. L£XIS ./035 (2010) COUNSEL: For Fred Leroy Pasternack. Petitioner: Elizabeth Mae Candelario, Yodice Associates. Frederick, MD; Kathleen Ann Barbara Yodice, Esquire, Law Of- fices of Yodice Associates, Frederick, MD. For Michael P. Huerta, Acting Administrator. Federal Aviation Administration, Respondent: Agnes M. Rodri- guez. Esquire, Federal Aviation Administration, (FAA) Enforcement Division, AGC-300, Washington. DC. JUDGES: Before: GARLAND, Chief Judge, KA- V ANA UGH, Circuit Judge, and EDWARDS. Senior Circuit Judge. OPINION [*1] JUDGMENT This cause was considered on a petition for review of an Order of the National Transportation Safety Board ("NTSB" or "Board") and was briefed and argued by counsel. The court has accorded the issues full consider- ation and has determined they do not warrant a published opinion. See D.C. GiR. R. 36(d). It is ORDERED AND ADJUDGED that the Order of the Board is hereby vacated and the petition for review is granted. In 2008, the Federal Aviation Administration ("FAA") issued an order revoking the airline transport pilot and flight instructor certificate and ground instruc- tor certificate of Petitioner Dr. Fred Pasternack on the ground [""2] that Dr. Pasternack allegedly "refused" to take a mandatory drug test. The NTSB upheld the revo- cation order, and Dr. Pasternack petitioned this court for review. After briefing and oral argument, the court va- cated the Board's decision because it was not supported by substantial evidence. Pasternack v. NTSB. 596 F.3d 836. 389 U.S. App. D.C. 266 (D.C. Cir. 2010). Following a remand of the case, the Board again upheld punitive sanctions by the FAA against Dr. Pasternack. See gener- ally Huerta v. Pasternack ("Order'? NTSB Order No. EA-5615. 2012 NTSB L£XIS 4. 2012 WL [*2] 562137 (Feb. 13.2012). Dr. Pasternack now challenges the Board's 2012 Order. On June I, 2007, Dr. Pasternack received a notice from his employer, Northeastern Aviation Corporation, that he had been randomly selected for drug testing. Several days later, he reported to a LabCorp collection facility but was unable to provide a sufficient urine sam- ple for the test. After a conversation with a testing center "collector," Dr. Pasternack left the facility and returned several hours later. Although the testing facility was of- ficially closed when he returned, he was permitted to enter and provide an adequate sample. The sample tested negative for drug use. The exact circumstances [**3] under which Dr. Pasternack left and returned to the test- ing facility were contested by the parties. Under applicable agency regulations, a failure to remain at a testing facility until completion of a drug test constitutes a "refusal" to test. See 49 C.F.R. § Page 2 SJ3 Fed. Appx. I,· ; 2013 U.S. App. LIDOS 16802,·· -10. 191(a)(2}. There is no dispute that Dr. Pasternack left the testing facility before the testing process was com- plete. However, the FAA concedes that leaving with permission does not constitute a refusal. Br. for Resp't at 48. Dr. Pasternack does not contest the legality of the regulation. Rather, he asserts that he received implicit permission to leave the testing facility and return. None- theless, the Board rejected Dr. Pasternack's claim that he had implicit permission to leave the testing facility. We review NTSB decisions under the arbitrary and capricious standard and treat the Board's factual findings as "conclusive" if they are supported by substantial evi- dence. See 5 Us.c. § 706(2)(A}; 49 US.c. § -I61/0(c}; Garvey v. NSTB, 190 F.3d 571, 577, 338 U.S. App. D.C. 82 (D.C. Cir. 1999). "If there is no substantial evidence to support the Board's reasoning ... its order must be vacated." Van Dyke v. NTSB, 286 F.3d 594,598,351 U.S. App. D.C. 82 (D.C. Cir. 2002). After [··4] careful re- view of the record in this case, we find that the Board's conclusion, that Dr. Pasternack lacked permission to leave the testing facility and, thus, "refused" a mandatory drug test, fails for lack of substantial evidence. We hold that, considering the entire record, substantial evidence does not support the NTSB's determination that the col- lector did not impliedly give Dr. Pasternack permission to leave. We are therefore constrained to reverse the de- cision of the Board, vacate its Order, and grant the peti- tion for review. Pursuant to Rille 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or peti- tion for rehearing en ballc. See FED. R. App. P. 41 (b); D.C. CIR. R. -II (a)(I) . Websterv. Psychemedlcs Corp., Slip Copy (2011) KcyCile Yellow Flag - Negative Treatment Dlsllngulshed by Pasternack v. Labomlory Corp. of America, S.DN.Y I Seplember6,2012 2011 WL 2520157 Only the Westlaw citation is currently available. SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee. Admiral WEBSTER v. PSYCHEMEDICS CORPORATION. 1 NO.201O-01087-COA-R3-CV. I Dec. IS, 2010 Session. I June 24, 2011. Appeal from the Circuit Court for Monroe County, No. V- 06304P; Lawrence H. Puckett, Judge. Attorneys and Law Firms Brian E. Nichols, Loudon, Tennessee, and J. Timothy Bobo and Ryan C. Edens, Clinton, Tennessee, for the appellant, Admiral Webster. Charles H. Hollis, New Orleans, Louisiana, and Elmer E. White, III, Birmingham, Alabama, for the appellee, Psychemedics Corporation JOHN W. McCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR. and D. MICHAEL SWINEY, JJ.,joined. OPINION JOHN W. McCLARTY, J. *1 The plaintiffs employment was terminated by the employer for violation of the company's drug testing policy. The plaintiff alleged negligence against the defendant, a biotechnology company with independent laboratory facilities providing hair testing for the detection of drugs and providing drug-testing services to the plaintiffs former employer. The trial court granted the defendant's motion for summary judgment. The plaintiff appeals. We reverse. I. BACKGROUND The plaintiff, Admiral Webster, was hired as a production technician by TRW Koyo Steering Systems Company in January of 200 I. At the time of his hire, Mr. Webster was advised of the substance abuse policy during a training session and signed a document acknowledging the random drug testing program. Prior to March 2004, it appear.; that TRW's interest in the company was bought out by Koyo Corporation of U.S.A. ("Koyo"). Koyo revised the substance abuse policy and required Mr. Webster to sign an Acknowledgment and Consent Form whereby he agreed to hold Tennessee Koyo and its agents harmless from any liability arising in whole or in part from any act of negligence by any of them in connection with collection of specimens, testing, and use of the results of said testing in connection with [his] employment.... Mr. Webster signed the form on March 4, 2004. On August 3, 2005, Mr. Webster was informed by his supervisor and Koyo's company nurse that he had been randomly selected to submit for drug testing. Mr. Webster went to the nurse's station located on Kayo's premises and provided a sample of hair from his underarm for testing. While at the nurse's station, Mr. Webster completed and signed Koyo's Substance Abuse Testing Voluntary Notification form, but he mistakenly dated the form August 3, 200 4 as opposed to August 3, 200 5. After providing a photo ID for proof of identification, Mr. Webster signed the custody and control form certifying that he voluntarily provided the sample and acknowledging that the collection procedures were followed. Pam Nichols, Koyo's nurse, also signed the custody and control form; she mistakenly dated the form August 1, 2005, as opposed to August 3, 2005. The defendant, Psychemedics Corporation ("Psychemedics"), is a biotechnology company with independent laboratory facilities providing patented hair testing for the detection of drugs. Psychemedics' testing services are used by a number of employers in their drug testing programs. In a release, Mr. Webster agreed as follows: WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Webster v. Psychemedlcs Corp., Slip Copy (2011) I consent to the testing of the sample by Psychemedics Corporation and 10 Ihe release of Ihe results 10 Ihe named lesl result recipient. I hereby release Psychemedics Corporalion, its officers, employees, agents and represenlalives from any and all liabililies arising from Ihe reporting of my results to the authorized recipient and Ihe recipienl's use Ihereof. After Mr. Websler's hair sample was collected by Ms. Nichols, it was placed in a piece of aluminum foil; the foil wilh Ihe hair sample was placed in a sample acquisilion card and sealed. Mr. Websler inilialed Ihe card after il was sealed. The card was Ihen placed in a plaslic bag Ihal was sealed wilh lamper-evidenl tape. Mr. Websler placed his inilials on Ihe lape and daled il Augusl3, 2005. *2 The lesl result on Ihe hair sample was posilive for Ihe presence of cocaine. Mr. Websler was informed on Augusl 8, 2005, and was escorted from Koyo's facilily. The very day he was lerminated, Mr. Webster went 10 his family physician, Peter Stimpson, M.D., and provided n urine sample. A test was conducled on the urine sample by Medtox Laboralories, Inc. ofSt. Paul, Minnesola. The urine lesl result daled August 15, 2005, was negalive. On Augusl 16,2005, Mr. Websler provided a hair sample for testing at Ihe Tennessee Drug & Alcohol Consortium in Alcoa, Tennessee. Quest Diagnostics of Allanla, Georgia, conducled Ihe lesl and ils Augusl 17, 2005 report indicaled Ihe lest results were negalive. Alleging Ihal he was Ihe viClim of a "false posilive," Mr. Webster sued his employer and Psychemedics for negligence, defamalion, and breach of contract. The negligence claim againsl Psychemedics is Ihe subject of this appeal. Psychemedics moved for summary judgmenl on the basis Ihal Mr. Webster lacks sufficienl probalive evidence 10 subslanliale Ihe essenlial elemenls of his claims. The trial court gran led Psychemedics' motion for summary judgment upon finding that while Psychemedics owed a dUly of care 10 Koyo's employee, Mr. Websler had waived his claim by agreeing 10 the exculpalory clauses. Mr. Websler filed this limely appeal. II. ISSUES The issues presenled by Mr. Webster are as follows: I. Was Ihe trial court correcl in its determination Ihal Psychemedics owed a dUly of care 10 Mr. Websler? 2. Did Ihe trial court correctly granl summary judgmenl 10 Psychemedics on Ihe basis Ihat Ihe exculpalory clauses do nol violale public policy and are enforceable as 10 Psychemedies? An addilional issue presenled by Psychemedics is the following: 3. As a mailer of law, did Mr. Websler offer sufficient evidence to eSlablish negligence on Ihe part of Psychemedics? III. STANDARD OF REVIEW Tenn. R. Civ. P. 56.04 provides that summary judgmenl is appropriale where: (I) there is no genuine issue with regard 10 Ihe malerial facls relevant 10 Ihe claim or defense conlained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); and (2) Ihe moving party is entitled to judgmenl as a mailer of law on Ihe undisputed facls. See Anderson v. Standard Register Co .• 857 S.W.2d 555, 559 (Tenn. I 993). In Hannan v. Alltel PI/bl'g Co .• 270 S.W.3d 1 (Tenn.2008), Ihe Tennessee Supreme Court clarified Ihe moving party's burden of proof in a summary judgment motion. A moving party who seeks 10 shift the burden of produclion to the non-moving party who bears Ihe burden of proof at lrial must either: (I) affirmalively negale an essenlial elemenl of Ihe non-moving party's claim; or (2) show that Ihe non- moving party cannol prove an essenlial elemenl of the claim allrial.Jd. at 5. According 10 the Court, when a party seeking summary judgmenl has made a properly supported motion, Ihe burden shifts 10 Ihe non-moving party 10 sel forth specific facls establishing Ihe existence of disputed, material facls which must be resolved by the trier of fact. Jd.; see Byrd. 847 S.W.2d a1215; Robinson v. Orner. 952 S.W.2d 423, 426 (Tenn. I 997). The non-moving party may nol simply rest upon the pleadings, but musl offer proof by affidavits or olher discovery materials (depositions, answers to interrogatories, WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Webster v. Psychemedlcs Corp., Slip Copy {2011} and admissions on tile) to show that there is a genuine issue for trial. If the non-moving party does not so respond, then summary judgment, if appropriate, shall be entered against the non-moving party. Tenn. R. Civ. P. 56.06. *3 There is no presumption of correctness for summary judgments on appeal. See City of TlIllahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn. 1997). This court must view all of the evidence in the light most favorable to the non- movant and resolve all factual inferences in the non-movant's favor. Lllther v. Compton. 5 S.W.3d 635,639 (Tenn.J999); MII"'heim v. Knox County Bd. ofEduc .. 2 S.W.3d 927, 929 (Tenn. I 999). When the undisputed facts, however, support only one conclusion, then the moving party is entitled to judgment as a mailer of law and a summary judgment will be upheld. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn.1998); McCall v. Wi/der. 913 S.W.2d 150, 153 (Tenn. I 995). IV. DISCUSSION A, Drug Tesliug, Duty of Care, and Public Policy The doctrine of employment at-will is a longstanding rule in Tennessee which recognizes the right of either the employer or the employee to terminate the employment relationship at any time for good cause, bad cause, or no cause at all, without being guilty of a legal wrong. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn.1997); Cianlon v. Cain- Sloan Co., 677 S.W.2d 441, 443 (Tenn.1984). Tennessee courts have continued to uphold the viability of the rule, recognizing the need for employers to retain a great deal of discretion in employing and discharging employees. See Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 923 (Tenn. I 990); Chism v. Mid-Solllh Milling Co., 762 S.W.2d 552, 556 (Tenn. I 988). By statute and case law, however, some restrictions have been imposed upon the right of an employer to terminate an at-will employee. Stein. 945 S. W .2d at 7 I 7. The reasons for such restrictions have been based on well-defined public policy. For example, in Tennessee any right to terminate an employee for service on a jury has been eliminated. Chism. 762 S.W.2d at 555- 56 (see Tenn.Code Ann. § 22---4---108(1). There are restrictions upon employment or tcnnination for discriminatory reasons involving race, creed, col Of, sex, age, religion, national origin, or handicap. Chism. 762 S.W.2d at 555- 56 (see Tenn.Code Ann. §§ 4--2 1---401 (a), 8- 50---103). In order to state a claim for such relief, it must be shown that a clear violation of some well-defined and established public policy has occurred. Examples cited by the Chism Court included dismissals for refusal to commit peojury, insistence on obeying a lawful subpoena, insistence on giving truthful testimony, honoring a subpoena to jury duty, and failing to seek release from jury duty. Chism. 762 S.W.2d at 556. Other examples given were the refusal to falsify records or to acquiesce in illegal conduct. Jd. This court in Slein v. Davidson Holel Co., No. Ol - A-{)I- 9509-CV-{)0407, 1996 WL 230196 (Tenn.Ct.App.1996), a wrongful discharge case, stated that "Davidson's policy of terminating employees who test positive for drugs does not violate any public policy known to this court. To the contrary, Tennessee's public policy is in total opposition to drug use in the workplace." 1996 WL 230 I 96, at ·6. The Tennessee Supreme Court affirmed our decision in Slein and commented that there is "no well-defined public policy which is violated by a private employer discharging an at-will employee who tests positive for drug use on a random drug test." Slein v. Davidson Hotel Co .• 945 S.W.2d 714, -- (Tenn .1997). *4 In Hackney v. DRD Managemenl, Inc., No. EI999-02107- COA- R3- CV, 2000 Tenn.App. LEXIS 205 (Tenn.Ct.App.E.S. March 3 I, 2000), this court held as follows: Tennessee case law has described the employment-at-will doctrine as allowing the employer or the employee to terminate the employment relationship at any time for any reason .... ••• ... We conclude that the public policy evidenced by the Drug- Free Workplace Programs Act is dismissal of employees for drug use. We are not inclined to extend public policy to include a requirement that all private employers who perform drug testing on at-will employees comply with chain of custody procedures. ... In Tennessee, there is no constitutional, statutory or regulatory provision which clearly evidences a public policy in favor of accuracy in drug testing for private employers. Hackney, 2000 Tenn.App. LEX1S 205, at ·16---19 (citations omilled). WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Webster v. Psyche medics Corp., Slip Copy (2011) Accordingly, Ihe law in Ihis slale is clear Ihal an employee can be lerminaled on Ihe basis of lesling posilive on a drug screen negligenlly performed by Ihe lesling facilily. See Stein, 945 S .W.2d al 719. This court is aware of no common law duly imposed on employers wilh respecl 10 subslance abuse lesling performed by Ihird party laboralories. Significanlly, Ihe appeal before us docs nol involve an employer. Ralher, il concerns a negligence action against a laboratory. In this matter, we must decide whether Psychemedics, the company hired by Koyo 10 perform random drug lests, owed a duty of reasonable care to Mr. Websler, Koyo's employee. To suslain a negligence claim under Tennessee law, a plaintiff must show that the defendant owed a duty 10 the plaintiff; a breach of that duty; an injury or loss; causation in fact; and proximate, or legal, cause. Coin v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998); Miller v. Niblack. M.D .• 942 S. W .2d 533, 542 (Tenn.Ct.App.1996). Thus, in order 10 succeed on a claim of negligence, Mr. Webster is required 10 prove: (I) a dUly of care owed to him by Psychemedics; (2) conduct on the part of Psychemedics falling below the applicable slandard of care thai amounts to a breach of that duly; (3) and injury or loss; (4) causation in fact; and (5) proximate, or legal, cause. McClung v. Delta Square Ltd., Inc., 937 S.W.2d 891, 894 (Tenn.l996). The queslion of whelher a duty exists is one of law and "requires consideration of whether 'such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others-or, more simply, whelherthe interestoflhe plaintiff which has suffered the invasion was entilled to legal protection at the hands of the defendant.'" Coin, 966 S .W.2d 34, 39 (Tenn.l998)(quoting Prosser and Keeton on Torts § 37 at 236 (5th ed. I 984)). See also Duncan v. Afton, Inc .. 991 P.2d 739, 742 (Wyo.l999). Duty is defined as "the legal obligation owed by defendant to plaintiff to conform 10 a reasonable person slandard of care for the prolection against unreasonable risks of harm," and a duty exists "if defendant's conduct poses an unreasonable and foreseeable risk of harm." McCallv. Wilder, 913 S.W.2d 150, 153 (Tenn.1995). A risk is unreasonable where "the foreseeable probability and gravity of harm posed by the defendanl's conduci oUlweigh the burden upon defendant 10 engage in altern alive conduct Ihat would have prevenled Ihe harm." Id. This requires consideration of a number of factors, including "the foreseeable probability of the harm or injury occurring; the possible magnitude of the pOlential harm or injury; the importance or social value of the activity engaged in by defendant; Ihe usefulness of the conduct of the defendant; the feasibility of alternative, safer conduct and the relative costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and the relative safety of alternative conduct." Id. '5 Relying on the at-will employment doctrine, Psychemedics argues that Mr. Webster can have no negligence claim against it for facilitating conduct for which the at-will employer cannot be held liable. Some courts in olher stales have refused 10 impose a duty on the testing entity. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex.1995); Willis v. Roche Biomedical Labs., Inc .. 61 F.3d 313, 316 (5th Cir.1995) (applying Texas law); Frank v. Delta Airlines, Inc .. 2001 WL 910386 (N.D.Tex.2001) (finding laboratory owed no duty of care 10 employee); Herbert v. Placid Ref Co .. 564 So.2d 371, 374 (La.Ct.App.1990) (holding laboralory owed employee no duty to properly analyze test sample); Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex.2003) (indicating that Texas law docs not recognize a duty of care owed from a Ihird party lesting laboratory to a test subject). In other jurisdiclions, courts have recognized some duty of care of testing facilities to employees drug-tesled at Iheir employers' behest. SeeSlinson v. Physicians Immediate Care. Ltd .. 646 N.E.2d 930, 934 (III.Ct.App.l995) (holding that although the plaintiff could not recover on the basis of a contractual duty, "[t]here need not be a contract between the plaintiff and the defendant for the defendant to owe a tort duty); Nehrez v. Dunn, 593 So.2d 915, 917- 18 (La.Ct.App.1992) (finding laboralory owes employee a duty 10 perform lest in competent manner); Elliol/ v. Laboratory Specialists, Inc .. 588 So.2d 175, 176 (La.Ct.App.1991) (holding that employee who was discharged based on a drug test result could assert a claim for negligence against the drug lesting laboratory that conducled the test, rejecting the contention of the laboratory that it owed no duty of care to the employee because its contractual arrangement was with the employer); Santiago v. Greyhound Lines, Inc .. 956 F.Supp. 144, 152- 53 (N.D.N.Y.1997) (holding that it was appropriate to recognize a duty of care on the part of the drug testing laboratory and would have allowed the plaintiff to proceed with a negligence claim had there been any evidence of negligence in the lesting process); Duncan v. Afton, Inc .. 991 P.2d 739, 745 (Wyo. I 999)(holding company owed a duty of reasonable care 10 an employee required to WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Webster v. Psychemedlcs Corp., Slip Copy (2011) submit to testing; risk of hann to an employee of a false positive test is both foreseeable and significant; company derives a financial benefit from testing and has the ability to hire and train competent personnel; company was in better position to bear costs of improperly perfonned test than wronged employee and imposition of duty of care would create incentive to avoid future hann); Ishikawa v. Delta Air Lines. 149 F.Supp.2d 1246 (D.Or.2001); Ragsdale v. Mount Sinai Med. Ctr. oJMiami, 770 So.2d 167 (Fla.DisI.CI.App.3d Dis1.2000) (holding medical center that contracted with employer to conduct drug testing of employees owes a duty of reasonable care to employees, as hann to employees was foreseeable if drug test results were erroneously reported as positive.); Chapman v. LabOne. 460 F.Supp.2d 989, 1001 (S.D.lowa 2006) (holding under Iowa law that a drug testing laboratory owes a duty of care to employees subjected to drug testing, because laboratory could anticipate the hann that could result to employees as a result of negligent conduct in processing samples); Coleman v. Town of Hempstead, 30 F.Supp.2d 356 (E.D.N.Y 1999) (finding that drug testing laboratory owed a duty of care to employee because of the devastating hann that can be caused because of an inaccurate test result and the fact that employers tend to have undue confidence in the results); Sharpe v. St. Luke's Hospital, 821 A.2d 1215 (Pa.2003) (finding hospital drug testing lab that contracted with plaintiffs employer to collect samples had a duty of reasonable care to the employee; recognized substantial public interest in ensuring that care is exercised in connection with employment related drug testing; refused to uphold grant of summary judgment in negligence action, holding that it was up to the jury to detennine whether testing lab had breached duty); Warshaw v. Concentra Health Services, 719 F.Supp.2d 484 (E.D.Pa .2010) (holding employee had stated a claim for negligence based on drug testing service's failure to meet duty of care; defendant should have foreseen that its negligence would hann plaintiffs employment and defendant was in the best position to ensure the non-negligent processing and reporting of test results and to limit its liability by acting reasonably; rejected defendant's argument that employee could not show any causation between the drug test resuhs and the tennination of the plaintiffs employment finding that there was a genuine issue of material fact as to whether such a connection existed); Balistrieri v. Express Drug Screening. LLC. No. 04-C-0989, 2008 WL 906236 (E.D.Wis.2008) (allowing negligence action against drug testing laboratory); Smith v. Diamond Offshore Managemelll Co., No. Civ. A. 03- 2024, 2003 WL 23095586, *7- 8 (E.D.La.2003); Quisenberry v. Compass Vision. Inc., 618 F.Supp.2d 1223 (S.D.CaI.2007) (laboratories owe a duty to the individuals whose specimens they test at the request of others); Berry v. Nat 'I Med. Servs., 205 P.3d 745 (Kan.Ct.App.2009) (finding that Kansas law recognizes a duty owed from laboratories to test subjects); Palonis v. Jewel Food Stores, Inc., 383 F.Supp.2d 1072, 1074 (N.D.lII.2005) (concluding that a laboratory owes a duty of reasonable care to persons whose specimens it tests); Williams v. National Railroad Passenger Corp., 16 F.Supp.2d 178, 18- 82 (D.Conn.l998) (allowing employee who was discharged for failing a drug test to sue the facility for negligence in perfonning the test). *6 In this action, Mr. Webster alleges that as an expert in the field of drug testing, Psychemedics owed "a duty of reasonable care" to persons whose specimens it tests for employers. He alleges that he never used cocaine, and therefore Psychemedics "breached this duty of reasonable care in being negligent in handling the processing of [his] random drug screen." Mr. Webster alleges that he was injured as a result of the breach. The trial court in the instant case found that Psychemedics owed a duty of care to Mr. Webster in undertaking his drug test at the request of the employer Koyo. The court based its conclusion on Tennessee common law regarding the legal duty owed by one party to another and its application to drug-testing companies. See Coin v .. City of Savannah, 966 S.W.2d 34, 29 (Tenn.1998); Saulsberry v. Laboratory Corp. of America, No. W2000-02826-COA- R3-CV, 2001 WL 912824 (Tenn.Ct.App.W.S., Aug. 6, 2001). The trial court also referenced the other jurisdictions that have established a duty of care in similar circumstances. In Saulsberry, an action by an employee against a laboratory for damages resulting from his discharge from employment due to the alleged negligence of the laboratory in perfonning a random drug test, allowed a negligence action against a laboratory to proceed. The employee's specimen tested positive for cocaine and he was discharged from his employment. The employee sued the laboratory that conducted the test, alleging negligence in the testing procedure that resulted in a false report. We reversed the trial court's grant of summary judgment on the negligence claim, finding that a genuine "dispute of material fact" needed to be resolved regarding whether there was a lack of reasonable care to provide correct laboratory results. Saulsberry, 2001 WL 912824, at *5. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Webster v. Paychemedlc. Corp., Slip Copy (2011) We agree with the conclusion of the trial coun that Psychemedics owed a duty of due care in administering the drug test to Mr. Webster. When an individual is required, as a condition of cmployment, to submit a sample for testing, a duty of care is imposed between the professional testing entity and the employee. As a company contracting with employers across the country to perform substance abuse testing, Psychemedics is aware that the likely effect of a false positive result is significant and devastating to an employee; employment will likely be terminated and future prospects of employment adversely impacted. Laboratories like Psychemcdics are in the best position to guard against injury, as they are solely responsible For the performance of thc tcsting and the quality control process and are better able to bear the burdcn financially than the employee harmed by a false positive report. B. EXCULPATORY CLAUSES The trial court found that Mr. Webster waived his negligence claim against Psychemedics by agreeing to exculpatory clauses required by Psychemedics and Koyo. The coun determined that the exculpatory clauses signed by Mr. Webster were not void against public policy and were enforeeuble as waivers of Psychemedics's liability, despite the duty it owed to Mr. Webster in handling, reviewing, and reponing his drug test. The trial court concluded that there was no public policy consideration against such exculpatory clauses evident in thc public regulation of companies who conduct drug testing on behalf of Tennessee employers. *7 When Mr. Webster submitted his hair sample for testing, he signed the following release: hereby release Psychemedics Corporation, its officers, employees, agents and representatives from all liability arising from the reporting of my results to the authorized recipient and the recipient's use thereof. In our view, this language merely releases Psychemedics from liability "arising from the reporling of [Mr. Webster's) results," not from its alleged negligent handling and testing of the hair sample. (Emphasis added). See Lewis v. Federal Reserve Bank. No. Civ. A. 04-1452,2004 WL 2035006, at °2 (E.D.La. Sept. 10, 2004). Thus, this eXCUlpatory clause is ineffective as to the issue before us. The other release provides as follows: I agree to hold Tennessee Koyo and its agents harmless from any liability in whole or in part from any act of negligence by any of them in connection with collection of specimens, testing, and use of the results of said lesling in connection with my employment.. .. (Emphasis added). This release only applies to Psychemedics iF it is found to be Kayo's agent. The surrounding facts and circumstances dClcnnine whether onc is an agent of another or an independent contractor. See Uniled Siaies v. Boyd. 363 S.W.2d 193,200 (Tenn. I 982). As noted in Boyd, "[t)he mere placing of terms such as agent or independent contractor in the contract does not make them such in law." Id. The principal distinction in the law between one who functions as an agent with that of one who functions as an independent contractor is based on "the extent of the control exercised" over the agent or independent contractor "in the performance of his work." Boyd, 363 S.W.2d at197. The long- settled test in Tennessee for agency is "whether the principal has a right to control the conduct of the agent with respect to matters entrusted to the agent." Sodexho Managemenl, Inc. v. Johnson, 174 S.W.3d 174, 178 (Tenn.2oo5). Thc "right of control is the primary or cssential test of an agency relationship without which no agency exists. The same standard applies when the agency relationship is implied: the right of the principal to control the agent's conduct or the actual exercise of such control is the essential test." Id. (quoting Nidiffer v. Clinchfield RR. Co .. 600 S.W.2d 242, 245 (Tenn.Ct.App.1980). In Boyd, the Tennessee Supreme Court observed that [g)enerally the distinction between the relation of principal and agent and employer and independent contractor is based on the extent of the control exereised over the employee in the performance of his work, he being an independent contractor if the will of the employer is represented only by the result, but an agent where the employer's will is represented by the means as well as the result. WESTLAW © 2016 Thomson Reuters. No claim 10 original U.S. Government Works. 6