Eric Landon,, Respondent,v.Kroll Laboratory Specialists, Inc., Appellant.BriefN.Y.September 3, 2013To be Argued by: MITCHEL H. OCHS (Time Requested: 30 Minutes) Orange County Clerk’s Index No. 9696/09 Appellate Division–Second Department Docket No. 2010-02182 Court of Appeals of the State of New York ERIC LANDON, individually and on behalf of all others similarly situated, Plaintiff-Respondent, – against – KROLL LABORATORY SPECIALISTS, INC., Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ANDERSON & OCHS, LLP 61 Broadway, Suite 2900 New York, New York 10006 Tel.: (212) 344-3600 Fax: (212) 344-0970 Attorneys for Defendant-Appellant Date Completed: June 14, 2012 i TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 1. No Damages: ....................................................................................................................... 1 2. No Duty:.............................................................................................................................. 2 ARGUMENT .................................................................................................................................. 4 POINT I ...................................................................................................................................... 4 LANDON HAS NOT ALLEGED, AND CANNOT ALLEGE, THAT HE SUFFERED ANY HARM, MUCH LESS ONE COGNIZABLE IN NEGLIGENCE ....................................................................................... 4 POINT II ................................................................................................................................... 11 LANDON HAS NOT ALLEGED, AND CANNOT ALLEGE, THAT KROLL OWED IT A LEGAL DUTY AS REQUIRED BY LONGSTANDING NEW YORK LAW ........................................................................ 11 CONCLUSION ............................................................................................................................. 20 ii TABLE OF AUTHORITIES Cases Baez v. Jetblue Airways Corp., 2009 U.S. Dist. LEXIS 67020 (E.D.N.Y. Aug. 3, 2009) ..................................... 13 Brown v. New York City Health & Hosps. Corp., 225 A.D.2d 36, 448 N.Y.S.2d 880 (2d Dep’t 1996) .............................................. 9 Cooper v. Weissblatt, 154 Misc. 522, 277 N.Y.S.2d 709 (2d Dep’t 1935) ............................................. 11 Dirito v. Stanley, 203 A.D.2d 903, 611 N.Y.S.2d 65 (4th Dep’t 1994) .............................................. 8 Dombrowski v. Bulson, 79 A.D.3d 1587, 915 N.Y.S.2d 778 (4th Dep’t 2010), rev’d, 2012 N.Y. LEXIS 1244 (May 31, 2012) ........................ 1, 2, 3, 5, 6, 7, 8, 9 Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999) .................................................................. 3, 13, 14, 16 Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002) .......................... 17-18 Gary v. Flair Beverage Corp., 60 A.D.3d 413, 875 N.Y.S.2d 4 (1st Dep’t 2009) ................................................... 7 Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 555 N.E.2d 273, 556 N.Y.S.2d 21 (1990) .................................... 11 Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 548 N.E.2d 903, 549 N.Y.S.2d 365 (1989) ................................ 10 Jenkins v. New York, 1992 U.S. Dist. LEXIS 8279 (S.D.N.Y. June 15, 1992) ................................ 13-14 Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 467 N.E.2d 502, 478 N.Y.S.2d 838 (1984) .................................. 6 Johnson v. Kings County DA’s Office, 308 A.D.2d 278, 763 N.Y.S.2d 635 (2d Dep’t 2003) ........................................... 8 iii Johnson v. State of New York, 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638 (1975) ................................. 9 Landon v. County of Orange, 2009 U.S. Dist. LEXIS 64927 (S.D.N.Y. July 23, 2009) ..................................... 11 Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 881 N.E.2d 1187, 852 N.Y.S.2d 1 (2008) ........................................ 9 Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013, 568 N.Y.S.2d 981 (4th Dep’t 1991) ........................................ 13 Pasternack v. Lab. Corp. of Am., 2011 U.S. Dist. LEXIS 88311 (S.D.N.Y. Aug. 1, 2011) ................ 2, 3, 11, 15, 19 People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 267 N.E.2d 238, 318 N.Y.S.2d 449 (1971) .................................. 7 People v. Hale, 93 N.Y.2d 454, 714 N.E.2d 861, 692 N.Y.S.2d 649 (1999) .................................. 7 People v. Spragis, 5 A.D.3d 814, 772 N.Y.S.2d 628 (3d Dep’t 2004) .............................................. 16 Pope v. Saget, 29 A.D.3d 437, 817 N.Y.S.2d 1 (1st Dep’t 2006) ................................................. 8 Pu v. Bruni, 24 Misc.3d 1245A, 899 N.Y.S.2d 62 (Sup. Ct., N.Y. County 2009) ................... 10 Rosenzweig Trading Co., Inc. v. Feinstien, 103 N.Y.S.2d 515 (2d Dep’t 1951) ................................................................ 10-11 Sharpe v. St. Luke’s Hosp., 573 Pa. 90, 98, 821 A.2d 1215 (2003) ................................................ 2, 13, 14, 15 Sheila C. v. Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dep’t 2004) ............................................... 9 State v. Tresville, 1975 Ohio App. LEXIS 6602 (Ohio Ct. App., Cuyahoga County Feb. 6, 1975) .. 7 iv Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 646 N.E.2d 930 (Ill. App. Ct. 2d Dist. 1995) .............................................................. 2-3, 13, 14, 16 Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 878 N.E.2d 1001, 848 N.Y.S.2d 585 (2007) ......................... 17, 18 Tourge v. City of Albany, 285 A.D.2d 785, 727 N.Y.S.2d 753 (3d Dep’t 2001) ............................................ 8 Tryon v. Square D Co., 275 A.D.2d 567, 712 N.Y.S.2d 676 (3d Dep’t 2000) .......................................... 18 Ventricelli v. Kinney System Rent A Car, Inc., 45 N.Y.2d 950, 383 N.E.2d 1149, 411 N.Y.S.2d 555 (1978) .............................. 18 Webster v. Psychemedics Corp., 2011 Tenn. App. LEXIS 335, *12 (Tenn. Ct. App. June 24, 2011) ........................................................... 2, 13, 14, 15 Wolkstein v. Morgenstern, 275 A.D.2d 635, 713 N.Y.S.2d 171 (1st Dep’t 2000) ............................................. 8 Zahrey v. City of New York, 2009 U.S. Dist. LEXIS 8177 (S.D.N.Y. Jan. 7, 2009) ......................................... 17 PRELIMINARY STATEMENT Defendant-Appellant Kroll Laboratory Specialists, Inc. (“Defendant- Appellant” or “Kroll”), respectfully submits this Reply Brief in response to Plaintiff-Respondent Eric Landon (“Plaintiff-Respondent” or “Landon”)’s answering brief, and in further support of its appeal. Two, only just decided, and all-four-square, decisions – one (by this Court) determining that non-pecuniary “loss-of-freedom” damages are not recoverable in negligence under New York law, and the other (by the Southern District applying New York law) determining that no “duty” exists and, therefore, no negligence claim can be made out between test subject and testing lab for allegedly negligent test results – are dispositive of the issues presented by this appeal and in Kroll’s favor: 1. No Damages: This Court, in Dombrowski v. Bulson, 2012 N.Y. LEXIS 1244 (May 31, 2012), decided the same day Landon filed his answering brief, reversed the only damages case relied upon in the Appellate Decision in finding Landon’s “loss of freedom” damages were cognizable. In doing so, this Court reaffirmed that non- pecuniary “loss-of-freedom” damages are not recoverable, as a matter of New York law, in actions grounded in negligence. Id. at *6. This Court, in Dombrowski, distinguished between intentional torts (not alleged against Kroll), 2 on the one hand, and those based “on the failure to exercise skill or care,” on the other hand, concluding that “loss of freedom” damages are simply not recoverable in negligence. Id. 2. No Duty: In Pasternack v. Lab. Corp. of Am., 2011 U.S. Dist. LEXIS 88311 (S.D.N.Y. Aug. 1, 2011), decided after briefing and argument in the Appellate Division, the Southern District, applying New York law, held that, as a matter of New York law, no duty exists between a test subject (like Landon) and a remote testing laboratory (like Kroll), on allegations based solely, like here, on the interpretation of test results, and not the collecting and/or mishandling of the specimen. Id. at *35. Landon avoids any mention of Pasternack and/or Kroll’s discussion of it in his answering brief. Rather, in advocating for a new cause for liability in tort under New York law, Landon relies exclusively on out-of-state cases from Tennessee, Pennsylvania, Illinois, and Wyoming; but none of those cases even recognized the kind of duty New York law requires because (unlike New York law) none of their states’ laws requires the separate element of duty to state a negligence claim as long as the harm was otherwise alleged to be “foreseeable” (Webster v. Psychemedics Corp., 2011 Tenn. App. LEXIS 335, *12 (Tenn. Ct. App. June 24, 2011); Sharpe v. St. Luke’s Hosp., 573 Pa. 90, 98, 821 A.2d 1215, 1220 (2003); Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3 3d 659, 664, 646 N.E.2d 930, 933 (Ill. App. Ct. 2d Dist. 1995); Duncan v. Afton, Inc., 991 P.2d 739, 744 (Wyo. 1999)); all, moreover, either involved claims of negligence in the collecting and/or handling of the specimen (not the test results obtained) – a substantive distinction Pasternack itself makes under New York law – and/or did not involve claims against the testing laboratory at all; and, all involved the use of drug testing in the private employment context resulting in the loss of the test subject’s job without due process, not the reporting of drug test results to a probation department as part of the states’ overriding interest in overseeing the terms and conditions of probation. Both Dombrowski and Pasternack are dispositive, and on the precise legal grounds that Kroll advanced against the Complaint, i.e., no duty and no damage alleged. Rather than taking Kroll on directly, the bulk of Landon’s opposition papers relate primarily to the claimed merits of the Complaint’s class action allegations (Resp’t Br. at 8-91), Kroll’s alleged negligence (id. at 2-8), and whether Kroll’s negligence was the “but for” cause of Landon’s claimed harm (id. at 17), all separate and independent elements of Landon’s putative class action negligence claim, but all matters having nothing whatever to do with the basis of Kroll’s original motion to dismiss and/or the Appellate Decision. As to the legal deficiencies of those separate and distinct elements of Landon’s Complaint as 1 Citations (“Resp’t Br. at __”) are to the brief of Plaintiff-Respondent Eric Landon, dated May 30, 2012. 4 against which Kroll did move, i.e., “duty” and “damage,” Landon has little, if anything, substantive to say. ARGUMENT POINT I LANDON HAS NOT ALLEGED, AND CANNOT ALLEGE, THAT HE SUFFERED ANY HARM, MUCH LESS ONE COGNIZABLE IN NEGLIGENCE On opening, Kroll established that time-honored negligence law in New York requires a plaintiff to plead and prove that he suffered actual, direct, physical loss or damage to his person or property (see Opening Br. at 28-302). Kroll further demonstrated that whether or not the commencement and subsequent termination of VOP Proceedings – as and when brought and then discontinued – resulted in an extension of Landon’s probation term while he successfully pursued his due process rights (A 12-133), did not result in any damage or loss at all, much less direct physical damage or harm cognizable in a negligence action as a matter of law (see Opening Br. at 30-34). Landon argued below and again here, and the Appellate Division found, that Landon’s continuation of probation as well as the “threat” of incarceration if his probation was revoked – which, in fact, never happened – was 2 Citations (“Opening Br. at __”) are to the opening brief of Defendant-Appellant Kroll Laboratory Specialists, Inc., dated April 12, 2012. 3 Citations (“A __”) are to the Appendix on Appeal. 5 enough to constitute a “loss of liberty,” and that such loss would be recovered in negligence, relying on the Fourth Department’s decision in Dombrowski v. Bulson, 79 A.D.3d 1587, 915 N.Y.S.2d 778 (4th Dep’t 2010). Dombrowski involved a claim of malpractice against a former attorney for negligent representation resulting in plaintiff’s alleged wrongful conviction and imprisonment. 79 A.D.3d at 1588. Plaintiff sued and sought damages for his “loss of liberty” arising from his claimed wrongful four-year incarceration plus a period of post-release supervision. Id. The Appellate Division, Fourth Department, while recognizing the well-settled law that non-pecuniary damages were not recoverable in actions involving the negligence of an attorney, nonetheless held that such non-pecuniary losses, including “loss of liberty” and attendant emotional injuries, should be recoverable where the underlying matter is criminal, rather than civil in nature, but only to the extent the losses are directly attributable to plaintiff’s imprisonment. Id. at 1589-90.4 This Court, by Decision dated the same day Landon filed his answering brief, has now reversed, in its entirety, the Fourth Department’s decision in Dombroski, holding that non-pecuniary damages including, specifically, loss of 4 Kroll argued in its opening brief against the application of Dombroski as against all the other departments, as well as previous case law in the Fourth Department itself, in recognizing that non-pecuniary “loss of liberty” damages are recoverable in a negligence action (see Opening Br. at 33-34), as well as distinguishable because the plaintiff in Dombrowski was, in fact, incarcerated and Landon was not, and so Landon never suffered a “loss of liberty” as a matter of law, in any event. Id. at 35-36. 6 liberty damages, are not recoverable in actions involving negligence. Dombrowski v. Bulson, 2012 N.Y. LEXIS 1244, *6-7 (May 31, 2012). In reversing the Fourth Department, this Court recognized the longstanding general rule that non- pecuniary “loss of liberty” damages are not recoverable where the underlying claim is based on “the failure to exercise due skill or care” in the performance of a duty. Id. at *6. This Court specifically rejected the reasoning of the Fourth Department that the prohibition against the recovery of non-pecuniary damages, including loss of liberty damages, should be different where the negligence of an attorney involved a criminal matter, and the harm was the result of imprisonment: The Fourth Department in this case reached the opposite conclusion, finding a parallel between actions for malpractice in a criminal action and claims for false arrest and malicious prosecution . . . . Although the harm suffered by the claimant is the same – loss of liberty – we reject the argument that these types of actions are analogous. False arrest and malicious prosecution are intentional torts. Malicious prosecution, in particular, requires a showing that the proceeding was commenced against the claimant with actual malice . . . . It makes sense that the scope of recovery for deliberate torts is broader than for torts based on the failure to exercise skill or care (see e.g. Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 531, 467 N.E.2d 502, 478 N.Y.S.2d 838 (1984)) (“as a matter of settled law, tort liability is predicated on the nature of the act of the tort-feasor, not simply the injury of the victim”)). Id. at *5-6. 7 In the absence of any allegation that the plaintiff in Dombrowski had suffered any pecuniary loss, this Court held: We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety. Id. at *7. The same result obtains here. Even assuming for purposes of argument only that Landon has alleged an actual harm or loss,5 all of the damages he claims, i.e., “loss of freedom” and for the non-pecuniary “emotional and psychological harm,”6 and “attorneys’ fees,” arising out of and relating to Landon’s “loss of freedom” claims, are legally insufficient to support a negligence 5 Landon argues that a three-month extension of probation constitutes “a significant deprivation of his liberty” because a probationer remains in “the legal custody of the court” and because of the various conditions of his probation. See Resp’t Br. at 21, n. 12. However, this Court has explicitly held that a probationer remains “at liberty” regardless of the above-mentioned restrictions. See People v. Hale, 93 N.Y.2d 454, 464, 714 N.E.2d 861, 866, 692 N.Y.S.2d 649, 654 (1999); see also People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 382, 267 N.E.2d 238, 240, 318 N.Y.S.2d 449, 453 (1971) (“[when] all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned.”). Thus, Landon’s argument that somehow his situation is different because he had a set release date that was tolled to afford him due process rights is a distinction without a difference. See State v. Tresville, 1975 Ohio App. LEXIS 6602, *5 (Ohio Ct. App., Cuyahoga County Feb. 6, 1975) (“The extension of probation does not involve the possible loss of liberty. It merely continues in effect the same degree of conditioned liberty which existed previously.”) Notably, Landon fails to cite a single case holding that the conditions of probation, whether original or extended, implicate a “liberty interest.” 6 Landon did not brief his claim for emotional harm in the Appellate Division and would thus appear to have abandoned those damage claims. See, e.g., Gary v. Flair Beverage Corp., 60 A.D.3d 413, 875 N.Y.S.2d 4, 6 (1st Dep’t 2009) (“[P]laintiff’s failure to address this issue in its responding brief indicates an intention to abandon this basis of liability.”). 8 claim under New York law7, as this Court has just now recently reaffirmed. See Dombrowski, 2012 N.Y. LEXIS 1244 at *4-5 (citing Wolkstein v. Morgenstern, 275 A.D.2d 635, 637, 713 N.Y.S.2d 171 (1st Dep’t 2000) (“A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury.”); Dirito v. Stanley, 203 A.D.2d 903, 611 N.Y.S.2d 65 (4th Dep’t 1994) (affirming dismissal of damages claim for emotional pain and suffering “whether based on the negligence or breach of contract causes of action asserted in the complaint”)); see also Pope v. Saget, 29 A.D.3d 437, 443, 817 N.Y.S.2d 1, 5 (1st Dep’t 2006) (holding that there was no “actual pecuniary loss” where “the sum total of damages appears to have been non-pecuniary aggravation and attorney fees”); Tourge v. City of Albany, 285 A.D.2d 785, 786, 727 N.Y.S.2d 753, 755 (3d Dep’t 2001) (“Even if [attorney fees] were incurred, they do not constitute evidence that [plaintiff] lost something of economic or pecuniary value[.]”) 7 See, e.g., Johnson v. Kings County DA’s Office, 308 A.D.2d 278, 282, 284-85, 763 N.Y.S.2d 635, 638-39, 640 (2d Dep’t 2003) (holding that loss of liberty claims – and the “physical, psychological and emotional injuries arising from” the loss of liberty claims – cannot be recovered under a negligence theory). Notably, the Johnson Court makes the same point that this Court made in Dombroski: namely, that loss of liberty damages can only be obtained by alleging intentional torts. See Johnson, 308 A.D.2d at 284-85 (“A plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles of negligence * * * but must proceed by way of the traditional remedies of false arrest and imprisonment.”). Landon’s argument that Johnson and similar cases (see Opening Br. at 33-34) only apply to loss of liberty claims that “take the form of a false arrest or incarceration” (Resp’t Br. at 20), is now defeated by Dombrowksi, which involved both incarceration and a period of post-release supervision. See Dombrowksi, 79 A.D.3d at 1588. 9 Even assuming Landon’s claims for emotional injury were properly preserved, and leaving aside both this Court’s decision in Dombrowski, and previous case law holding that emotional injuries arising from a loss of liberty claim is not recoverable in negligence, the claim for such injury fails on its own where, as here, the plaintiff does not allege either any physical harm or the “extremely limited” circumstances under which recovery may be had for emotional harm in absence of such physical harm. Brown v. New York City Health & Hosps. Corp., 225 A.D.2d 36, 44, 448 N.Y.S.2d 880, 885 (2d Dep’t 1996). Plaintiff has not alleged either of the preconditions to recover for purely emotional harm, absent direct physical injury: that (1) the breach of the duty owed “unreasonably endanger[ed] the plaintiff’s physical safety, or cause[d] the plaintiff to fear for his or her own safety,” Sheila C. v. Povich, 11 A.D.3d 120, 130, 781 N.Y.S.2d 342, 351 (1st Dep’t 2004), and (2) that the psychological trauma of the alleged positive drug test caused him “ensuing psychic harm with residual physical manifestations.” (Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 881 N.E.2d 1187, 1189, 852 N.Y.S.2d 1 (2008) (citing Johnson v. State of New York, 37 N.Y.2d 378, 381, 334 N.E.2d 590, 592, 372 N.Y.S.2d 638, 641 (1975) (“Contemporaneous or consequential physical harm, coupled with the initial psychological trauma . . . provide[s] an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences.”)). 10 Finally, as Landon concedes in his brief, “the general rule in New York is that attorneys’ fees are not a recoverable damage[.]” Resp’t Br. at 22; see generally Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 548 N.E.2d 903, 904, 549 N.Y.S.2d 365, 366 (1989) (“attorney’s fees are incidents of litigation” and may not be collected “unless an award is authorized by agreement between the parties, statute, or court rule”). The “well recognized exception” Landon purports to invoke as a basis to claim a right to attorney’s fees (Resp’t Br. at 22) to avoid dismissal of his negligence claim, is inapposite. While to be sure there are limited cases that mention such an “exception,” all refuse to apply it unless the defendant is alleged to have acted with “malice” or committed some other “intentional tort” against the plaintiff, but not negligence. As explained in Pu v. Bruni, 24 Misc. 3d 1245A, 899 N.Y.S.2d 62 (Sup. Ct., N.Y. County 2009): [T]he rule is that a plaintiff ordinarily is not entitled to recover in a separate, subsequent action for the costs and expenses incurred in the prior action, even where the necessity for bringing the prior action was caused by the wrongful act of the defendant . . . . An exception is where the earlier litigation arises out of defendant’s acts of malice, in particular, actions involving malicious prosecution and false arrest, as well as those in which the recovery of attorney’s fees and expenses are permitted by statute or contract. (Citing Rosenzweig Trading Co., Inc. v. Feinstien, 103 N.Y.S.2d 515, 516 (2d Dep’t 1951) (“There was no showing of malice . . . to bring the case within the 11 exceptions[.]”); Cooper v. Weissblatt, 154 Misc. 522, 527-28, 277 N.Y.S.2d 709, 716 (2d Dep’t 1935) (such cost allowed only where occasioned by an intentional and malicious wrongful act).8 POINT II LANDON HAS NOT ALLEGED, AND CANNOT ALLEGE, THAT KROLL OWED IT A LEGAL DUTY AS REQUIRED BY LONGSTANDING NEW YORK LAW On opening, Kroll established and, by his answering brief, Landon either ignores or at least tacitly concedes, that the Complaint fails to state a cause of action under existing New York law (see Opening Br. at 1-4; Resp’t Br. at 9- 19); that, to this point, no New York case has ever recognized a claim of negligence between test taker and test subject, and those cases that have considered whether such a claim should be found to exist have refused to do so (see Pasternack, 2011 U.S. Dist. LEXIS 88311 at *34-36, Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 36, 555 N.E.2d 273, 278, 556 N.Y.S.2d 21, 26 (1990)); and, that all of the policy considerations traditionally taken into account by this Court in 8 Landon has not alleged, and cannot allege, intentional misconduct on Kroll’s part directed at him. Indeed, the Southern District of New York, in a separate action brought by Landon against the County of Orange (the “County”), related County officials, and Kroll, in the matter Landon v. County of Orange, 2009 U.S. Dist. LEXIS 64927 (S.D.N.Y. July 23, 2009), has already determined, in denying Landon’s claims grounded in malice under New York law, that all Kroll was alleged to have done was to provide test results to the County, which was solely responsible for the decision to bring, continue, and then terminate VOP proceeding against him. Id. at *23 (“[I]n light of the absence of any allegations regarding Kroll’s active participation or interest in the VOP proceeding against Plaintiff, Plaintiff has not stated a ‘plausible claim’ for malicious prosecution against Kroll.”). 12 determining whether to recognize a new cause for tort liability in the State augur against finding one in the circumstances here, involving a probationer, and the states’ overriding interest in overseeing the terms and conditions of his probation. See Opening Br. at 36-46. Landon, instead, counters by arguing that: (a) there is a “trend” based on selected out-of-state cases, from Tennessee, Pennsylvania, Illinois, and Wyoming, that have upheld claims by a test subject against a testing laboratory and this trend is a proxy for what this Court should now determine New York law to be (see Resp’t Br. at 11-15); and (b) the Complaint’s allegations against Kroll of negligence and “but for” causation are somehow enough to state a negligence claim under New York law. Id. at 17. Neither argument has merit; each is addressed in turn. All of the out-of-state cases upon which Landon relies are distinguishable, and in a dispositive way, on the facts as alleged, on the law and as a matter of New York’s public policy. First, and as more fully set forth in Kroll’s opening brief, all rely on the element of foreseeability to define the existence, and nature and scope, of duty, where long-settled New York law does not. See Opening Br. at 17-19. Second, even the selected out-of-state cases upon which Landon relies, back into a negligence claim under their state’s laws, only as long as there 13 otherwise is no public policy reason, in those states, against it. Webster v. Psychemedics Corp., 2011 Tenn. App. LEXIS 335, *8-10 (Tenn. Ct. App. June 24, 2011); Sharpe v. St. Luke’s Hosp., 573 Pa. 90, 96, 821 A.2d 1215, 1219 (2003); Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 664-65, 646 N.E.2d 930, 934 (Ill. App. Ct. 2d Dist. 1995); Duncan v. Afton, Inc., 991 P.2d 739, 745-46 (Wyo. 1999). Again, as set forth in further detail in Kroll’s opening brief, whatever policy concerns may, or may not, be implicated with respect to mandatory drug testing in the private employment context – which is the context of all the out-of-state cases – there is a strong public policy in New York against imposing liability on those, like Kroll, who, in the context of this case, make reports to government authorities as part of the state’s compelling interest in protecting the public’s health and safety, even if those reports it later turns out were, in fact, negligently made. See Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013, 568 N.Y.S.2d 981, 982 (4th Dep’t 1991) (“As a matter of public policy, there is no cause of action in the State of New York for negligent prosecution or investigation.”); see also Baez v. Jetblue Airways Corp., 2009 U.S. Dist. LEXIS 67020, n.4, *17-18 (E.D.N.Y. Aug. 3, 2009) (dismissing negligence claim brought against airline for reports made to TSA as against New York public policy: “[T]his rule also holds in cases where private defendants report plaintiffs to the police after conducting shoddy investigations.”); Jenkins v. New York, 1992 U.S. 14 Dist. LEXIS 8279, *23-24 (S.D.N.Y. June 15, 1992) (dismissing negligence claim based on false prosecution as against public policy of New York: “Plaintiffs cannot circumvent the well-established requirements of the false arrest and malicious prosecution causes of action by inventing new theories of negligence.”). Third, all of the out-of-state cases involve allegations of negligence directly related to the “collecting” and/or “mishandling” of the specimen. See Webster, 2011 Tenn. App. LEXIS 335 at *18 (Plaintiff alleged defendant drug testing laboratory “breached this duty of reasonable care in being negligent in handling the processing of [his] random drug screen.”); Stinson, 269 Ill. App. 3d at 660 (Plaintiff “alleged that the defendant [drug testing laboratory] had a duty to act with care in collecting and handling the specimen[.]”)9 Here, in contrast, the allegations of negligence against Kroll relate only to the interpretation of the test results, including, more particularly, the alleged misapplication of governing standards, a fact the court in Pasternack found dispositive both in distinguishing the trilogy of New York federal court cases upon which Landon and the Appellate Decision relied, and in dismissing the claim of negligence. In that connection, the 9 In fact, in two of the four cases upon which Landon relies, the plaintiff did not even assert any claims against the drug testing laboratory, only against the entities that collected / handled the specimens. See Sharpe, 573 Pa. at 93-94 (Plaintiff “alleged a plethora of failures on the part of the [defendant hospital] concerning its collection and handling of the urine specimen.”; Plaintiff “did not assert any claim against the entities that had performed the testing and reported the results[.]”); Duncan, 991 P.2d at 741, 744 (Plaintiff “contends that [collection company] negligently collected and handled his urine specimen.”; drug testing laboratory that “analyze[d] the specimens and report[ed] the results” not part of the lawsuit). 15 Pasternack Court distinguished “Drake III, Santiago, and Coleman [as all involving] a direct mishandling of plaintiff’s urine specimen[.]” Pasternak, 2011 U.S. Dist. LEXIS 88311 at *36. The alleged wrong in Pasternack, like the wrong alleged against Kroll,10 was not any direct mishandling of plaintiff’s specimen, but that the lab misinterpreted/misapplied alleged governing test standards. Id. In that case, the Pasternack Court held: [Plaintiff] has not cited any law demonstrating that such a misinterpretation can provide the basis for a negligence claim. Id. It follows, logically, if legally, that Pasternack, applying/interpreting New York law, would draw the same distinctions with respect to the out-of-state cases relied upon by Landon. Fourth, all of the out-of-state cases relied upon by Landon involve mandatory drug testing of private employees by their private employers resulting in immediate job loss without any due process rights or other recourse. See Webster, 2011 Tenn. App. LEXIS 335 at *10 (“[T]he law in this state is clear that an employee can be terminated on the basis of testing positive on a drug screen negligently performed by the testing facility.”); Sharpe, 573 Pa. at 98 (“the substantial harm deriving from inaccurate test results, which, in the context of 10 Plaintiff-Respondent alleged only that Kroll was negligent in failing to follow various proposed workplace standards and procedures for measuring and/or confirming the type of drug screening/testing performed. (A 9-12). Landon, otherwise, concedes that Kroll had nothing whatever to do with the collecting/handling/labeling/preserving of his specimen all, in fact, singularly the responsibility of the Probation Department. (A 8-9). 16 [Plaintiff’s] employment-related screening, allegedly took the form of a termination of gainful employment, would be a foreseeable consequence of a breach of the duty of reasonable care”); Stinson, 269 Ill. App. 3d at 664 (“the injury, that the plaintiff would be terminated from his employment, is not only foreseeable, but also is a virtual certainty in the event of a positive drug test result”); Duncan, 991 P.2d at 745 (“[Defendant] is aware that the likely effect of a false positive result is significant and devastating; employment will likely be terminated and future prospects of employment adversely impacted.”). Here, by contrast, the testing was done as part of the State’s overriding interest in matters involving public health and safety, including overseeing the terms and conditions of probation. Probationers, moreover, are afforded full due process rights, including, by law, the right to challenge the methods and/or results of any drug test in court. See, e.g., People v. Spragis, 5 A.D.3d 814, 815, 772 N.Y.S.2d 628 (3d Dep’t 2004) (recognizing that, at a probation hearing, a probationer can challenge “the reliability of the drug test,” or issues regarding the “competency” in “administer[ing] the test or read[ing] its results”). Landon, in fact, concedes, as he must, he was afforded those rights resulting in the full and complete dismissal of the charges against him and in his favor. (A 12-13.) 11 11 The very public policy considerations that underscore New York’s refusal to recognize a cause of action for negligent investigation are, in fact, well-illustrated by the distinctions between testing in the private sector and testing of those in the criminal justice system as part of the terms 17 Landon’s extensive discussion in his answering brief about the merits of his class action allegations (Resp’t Br. at 8-9), Kroll’s alleged negligence (id. at 2-8), and whether Kroll’s alleged negligence was the “but for” cause of Landon’s claimed harm (id. at 17), are all beside the point and wrong. Landon’s allegations, and the Appellate Division’s findings, about what Kroll did/failed to do, and the foreseeability and proximate cause and effect of Kroll’s alleged negligence (id. at 2-12, 17), may relate to other necessary and independent elements of Landon’s negligence claim, but have nothing to do with basis for Kroll’s motion addressed to other separate legal deficiencies of Landon’s claim (i.e., duty and damage). Landon attempts to distinguish this Court’s decisions in Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 878 N.E.2d 1001, 848 N.Y.S.2d 585 (2007) and Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), which dismissed claims of negligence, as requiring a different result where the alleged harm is the “but for” cause for the loss (see Resp’t Br. at 17). Landon’s argument is unavailing. First, whether or not and conditions of probation, where due process rights are afforded by the courts. See, e.g., Zahrey v. City of New York, 2009 U.S. Dist. LEXIS 8177, *75-76 (S.D.N.Y. Jan. 7, 2009) (dismissing plaintiff’s action against the State on the basis that “there is no cause of action in New York for negligent investigation of a crime”; noting that plaintiff had “ample opportunity to provide to police and others involved in his prosecution” any exculpatory facts in his possession.) Landon, in fact, includes allegations in the Complaint that he was afforded a full opportunity to provide exculpatory information to the Probation Department including, specifically, independent test results he undertook himself, and also separate, additional, testing by his probation officer (both indicating he tested negative) before the probation department, in its discretion, nonetheless determined to proceed with Violation of Probation Proceedings, and, then, later dropped those proceedings. (A 12-13.) 18 there is/was some cause and effect between Kroll’s alleged negligence and any claimed loss implicates the separate element of “proximate causation,” not the elements of “duty” and “damages” that are at issue on this appeal. Landon, moreover, misreads Stiver and Espinal to the extent that he cites them for the proposition that negligence “causation” can be established by “but for” allegations. New York law, in fact, is to the contrary. See, e.g., Tryon v. Square D Co., 275 A.D.2d 567, 572-73, 712 N.Y.S.2d 676, 681 (3d Dep’t 2000) (“While it certainly can be said that ‘but for’ the mill’s low voltage this tragic accident may not have occurred, this does not constitute legally sufficient proximate cause [for a negligence action]. As noted by the Court of Appeals, ‘because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.’”) (quoting Ventricelli v. Kinney System Rent A Car, Inc., 45 N.Y.2d 950, 952, 383 N.E.2d 1149, 411 N.Y.S.2d 555, 556 (1978)). Finally, to the extent Landon argues that drug testing constitutes/reflects the “launching of a force or instrument of harm” such that it falls within the very narrow exceptions discussed in Espinal – describing when a party may be found to have assumed a duty of care to a non-contracting third party – the Pasternack Court has considered and determined that this exception is not 19 applicable to a drug testing laboratory and test subject. See Pasternack, 2011 U.S. Dist. LEXIS 88311 at *30-36. In short, the order of the Appellate Division should be reversed, the order of the Supreme Court, Orange County, reinstated, the Complaint dismissed, and the certified question answered in the negative on ground that New York law does not recognize a duty in the circumstances alleged. 20 CONCLUSION For all the foregoing reasons, as well as those set forth in its opening brief, Kroll respectfully submits that it is entitled to an order from this Court: (a) reversing the order of the Appellate Division, Second Department, (b) reinstating the order of the Supreme Court, Orange County, dismissing the Complaint, on the merits, in its entirely, (c) answering the certified question in the negative, and (d) awarding it costs, including reasonable attorneys’ fees, together with such other and further relief as to this Court seems just and proper. Dated: New York, New York June 14, 2012 Respectfully submitted, ANDERSON & OCHS, LLP By: ______________________________ Mitchel H. Ochs Jason A. Stern Michael J. Hasday 61 Broadway, Suite 2900 New York, New York 10006 (212) 366-3600 Attorneys for Defendant-Appellant Kroll Laboratory Specialists, Inc.