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. 14-4101-cv ___________________________________________________________________________ _ 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 RESPONDENT LEXISNEXIS OCCUPATIONAL HEALTH SOLUTIONS INC. f/k/a CHOICEPOINT, INC. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ _ FREDERICK T. SMITH GINA R. MERRILL SEYFARTH SHAW LLP SEYFARTH SHAW LLP 1075 Peachtree Street, NE, Suite 2500 620 Eighth Avenue Atlanta, Georgia 30309-3958 New York, New York 10018 Tel.: (404) 885-1500 Tel.: (212) 218-5500 Fax.: (404) 892-7056 Fax.: (212) 218-5526 Attorneys for Respondent LexisNexis Occupational Health Solutions Inc. f/k/a ChoicePoint, 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: ChoicePoint, Inc. and its subsidiaries were acquired by Reed Elsevier, Inc. in September 2008. In connection with this transaction, ChoicePoint’s drug testing services were subsequently offered through LexisNexis Occupational Health Solutions Inc. LexisNexis Occupational Health Solutions Inc. no longer exists. The entity was wholly owned by LexisNexis Risk Solutions Inc., which is a wholly owned subsidiary of LexisNexis Risk Assets, Inc., which is a wholly owned subsidiary of LexisNexis Risk Holdings Inc. LexisNexis Risk Holdings Inc. is a wholly owned subsidiary of RELX Inc., the entity formerly known as Reed Elsevier Inc. RELX Inc. is a wholly owned subsidiary of RELX US Holdings Inc. The ultimate parent company of RELX US Holdings Inc. is RELX Group plc, which is jointly owned by RELX PLC and RELX NV. First Advantage Corporation acquired LexisNexis Occupational Health Solutions Inc. from LexisNexis Risk Solutions Inc. on February 29, 2013. The name of LexisNexis Occupational Health Solutions Inc. was changed to First Advantage LNS Occupational Health Solutions, Inc. on June 24, 2013. On July 1, 2015, First Advantage LNS Occupational Health Solutions, Inc. was merged into First Advantage Occupational Health Services Corp. 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. 45.) As noted by Drake, these provisions only demonstrate that "some tort claims arising from regulated drug testing wil l 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 respectful ly requests that this Court answer "No" to the First Certified Question. Date: April4,2016 Respectfully submitted, SEYFARTH SHAW LLP By: 7 Attorney for Defendant-Respondent LexisNexis Occupational Health Solutions Inc. 39