Eric Landon,, Respondent,v.Kroll Laboratory Specialists, Inc., Appellant.BriefN.Y.September 3, 2013To Be Argued by ROBERT N. ISSEKS. ESQ. 15 Minutes Orange County Clerk's Index No. 9696/09 Appellate Division-Second Department Docket Number: 2010-02182 ~ourt of ~ppeaI~ a/the ~tate of ~etu ~ork ERIC LANDON, individually and on behalf of all others similarly situateq P fa intifJ-Respondent, -against- KROLL LABORATORY SPECIALISTS, INC. Defendant-Appellant BRIEF FOR PLAINTIFF-RESPONDENT ROBERT N. ISSEKS, ESQ. 6 North Street Middletown, New York 10940 (845) 344-4322 BLOOM & BLOOM, P.C. 530 Blooming Grove Turnpike New Windsor, New York 12553 (845) 561-6920 Attorneys for Plaintiffs-Respondents Robert N. Isseks and Kevin Bloom On the Brief TABLE OF CONTENTS TABLE OF AUTHORITIES.................... ....................................................... ii QUESTIONS PRESENTED.... . .. . ..... . . .. . .. . .. . . ...... . .... .. . . ... . . ... . ... ... . .... ... 1 PRELIMINARY STATEMENT ............................................................................. 1 STATEMENT ()F T~ <:LJ\IMS ........................................................ 2 ARG'UMENT ... ...................................................................................................... 9 Point 1 The Appellate Division <:orrectly Held that a Drug Testing Laboratory owes a Duty of Care to the Stbjects of its Drug Tests ........ ... 9 Point 2 The <:omplaint Alleges Legally <:ognizable Harm and Loss ...................... 19 <:ON<:LUSION ..................................................................................................... 23 . 1. TABLE OF AUTHORITIES CASES 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc, 96N.Y.2d280(2001) ...................................................................... 10 Barna v. Travis, 239 F.3d 169 (2d Cir.2001) .......................................... 21 Berry v. National Med. Servs., 41 Kan.App.2d 612,205 P.3d 745 [2009], affd. 292 Kan. 917, 257 P.3d 287 .................................................... 12,20 Central Trust Co., Rochester v. Goldmal1 70 A.D.2d 767 (4h Dept. 1079) ....... 23 Chapman v. Labone, 460 F.Supp.2d 989 [S.D.Iowa 2006] .......................... 12 Coleman v. Town o/Hempstead, 30 F.Supp.2d 356 [E.D.N.Y.1999] .......... 16, 18 Drake v. Lab. Corp. 0/ Am. Holdings, 2007 WL 776818, 2007 U.S. Dist. LEXIS 17430 [E.D.N.Y.2007], affd. 417 Fed.Appx. 84 ............................. 16 Duncan v. Afton, Inc., 991 P.2d 739 [Wyo. 1999] ........................... 12, 14, 15 Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 (2002) ............................ 17 Fugazy Travel Bur. v. Ernst & Ernst, 31 A.D.2d 924, 925 (18t Dept. 1969) ...... 23 Garlick v. Quest Diagnostics, Inc., 2009 WL 5033949, 2009 U.S. Dist. LEXIS 116452 [D.N.J.] ................................................ 12 Hall v. United Parcel Service 0/ America, Inc, 76 N.Y.2d 27 (1990) ......... 18, 19 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) ........................... 10 Hynes v. Patterson, 95 N.Y. 1 (1884) ................................................... 23 In re New York City Asbestos Litigatiol1 5 N.Y.3d 486 (2005) ..................... 17 11. Jones v. Morgan, 90 N.Y. 4 (1882) ...................................................... 23 Kennedy v. McKesson Co., 58 N.Y.2d 500 (1983) .................................... 19 Lando v. State o/New York, 39 N.Y.2d 803 ............................................ 19 Landon v. KrollLaboratory Specialists, Inc, 91 A.D.3d 79 (2rl Dept. 2011) ................................ 2,6,10,11, 12, 14, 15, 16 Lapidus v. New York, 57 A.D.3d 83 (2d Dept. 2008) ................................. 20 Meister v. New York State Atty. Gen., 2007 WL 2874363, 3 (W.D.N.Y. 2007) ... 21 Moch Co. v. Rensselaer Water Co., 247 N.Y. at 165 ................................. 10 Nehrenz v. Dunn, 593 So.2d 915 [La. 1992] ........................................... 12 Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579 (1994) ................... 10 Pena v. Travis, 2002 WL 31886175 (S.D.N.Y. 2002) ........................... 21,22 People v. Dougias, 94 N. Y.2d 807 (1999) . ... ... . .. . .. . .. ... . ... . ... . ....... .. ... ... .. 22 Quisenberry v. Compass Vision, Inc., 618 F.Supp.2d 1223 [S.D.Cal. 2007] ....... 12 Santiago v. GreyhoundLines, Inc., 956 F.Supp. at 151-152 N.D.N.Y.1997] ........................................................... ......... 16, 18, 19 Sharpe v. St. Lu:re's Hosp., 573 Pa. 90, 821 A.2d 1215 [2003] .............. 11, 12, 13 "" Shindler v. Lamb, 25 Misc.2d 810 (NY Sup. 1959), ajJd. 10 A.D.2d 826, 200 N.Y.S.2d 346 (1st Dept. 1960), ajJd. 9 N.Y.2d 621 (1961) .......................... 23 Signature Healt.~ Center, LLC v. State, 28 Misc.2d 543 (NY Ct. Cl. 2010) ....... 20 Stinson v. Physidans Immediate Care, Ltd.,269 Ill.App.3d 659, 207 IlI.Dec. 96, 646 N.E.2d 930 [1995] ........................................ 12,13,14 Stiver v. Good & Fair Carting & Moving, Inc, 9 N.Y.3d 253 (2007) .......... 16, 17 ... Ill. Webster v. Psychemedics Corp., 2011 WL 2520157, *6, 2011 Tenn. ApR. LEXIS 335, *19 [et.App. 2011] ............................... 11,12 STATE STATUTES NYS ePL §410.50(1) ..................................................................... 21 OTHER 25 e.J .8. Damages s 50 .... ......... ... ... ............... ......... . .. . ............ ..... . .. 23 Restatement, Torts, s 914 ................................................................. 23 . IV. QUESTIONS PRESENTED 1. Wheth"'!r a drug testing laboratory owes a duty of care to the subjects of its drug tests. The Appellate Division, Second Department answered this question in the affirmative. 2. Wheth~r the Complaint in this action alleges a legally cognizable loss or harm. The Appellate Division answered this question in the affirmative. PRELIMINARY STATEMENT Plaintiff-Respondent, Eric Landon ("Landon") commenced this lawsuit in the Supreme Court, Orange County, against Defendant-Appellant, Kroll Laboratory Specialists, Inc. ("Kroll"), individually and on behalf all of those who have suffered damages in New York as a result of Kroll's systemic negligence in its reporting of c~ral fluid drug test results for forensic purposes. Kroll moved to dismiss Landon's Complaint pursuant to CPLR Rule 321 1 (a)(7) on the ground that New York State does not recognize a cause of action in tort for the negligent reporting of a fa~se positive drug test. By Decision and Order dated January 11, 2010, the Supreme Court (Hon. David S. Ritter) granted the motion holding: The complaint fails to state a cause of action against the defendant (see Stiver v Good & Fair Carting and Moving, Inc., 9 NY3d 253; In re New York City Asbestos Litigation, 5 NY3d 486; Hall v United Parcel Service of America, Inc., 76 NY2d 27). To the extent that Coleman v Town of Hempstead (30 F Supp2d 356) holds to the contrary, it is not controlling on issues of ~tate law (see Marisich v Eastman Kodak Co., 244 AD 295). 1 (A-4) I Landon appealed and by Decision and Order dated November 22, 2011, the Appellate Divisi)n, Second Department reversed, holding "that a drug testing laboratory may be held liable in tort to the subject of a drug test for failing to use reasonable care under the circumstances, notwithstanding the absence of a formal contractual relationship between the drug testing laboratory and the subject of the drug test." Landon v. Kroll Laboratory Specialists, Inc., 91 A.D.3d 79, 90 (2d Dept. 2011). The Appellate Division further held that Landon's Complaint alleged a cognizable loss or harm. Landon, 91 A.D.3d at 91 ("To the extent that the defendant contends that the plaintiff failed to adequately plead actual injury or damages, its contention is without merit"). STATEMENT OF THE CLAIMS Kroll is a Louisiana corporation doing business in New York. At all times relevant to this action, Kroll has held a Permit for Comprehensive Forensic Toxicology issued by the New York State Department of Health and has been performing substance abuse testing services pursuant to contracts with the County of Orange and other institutions, agencies and businesses throughout the State of New York. See,!Complaint, at ~2 (A7). I Kroll also moved for dismissal pursuant to CPLR Rule 327 on the ground of forum non conver."iens. This alternative branch of Kroll's motion was denied as academic. (A4) 2 On January 28, 2002, Landon was convicted in the Orange County Court of forgery in the se:ond degree [N.Y.S. Penal Law § 170.10] and sentenced to a five- year term of probation. See, Complaint, at ~3 (A7-A8). One of the conditions of Landon's probation was that he submit to periodic and random drug testing at the direction of his probation officer. See, Complaint, at ~4 (A8). In December, 2007, during Landon's term of probation, the County of Orange had a cO!ltractual relationship with Kroll pursuant to which Kroll analyzed oral fluid samples obtained from probationers for the forensic purpose of ascertaining and reporting the presence or absence of illicit or controlled substances and thereby determining whether such probationers were in compliance with the terms and conditions of their sentences. See, Complaint, at ~5 (A8). Landon submitted such an oral fluid sample to his probation officer on December 17, 2007 (the "December 17th Sample"). See, Complaint, at ~6 (A8). No simultaneous urine sample was taken. See, Complaint, at ~8 (A8). The December 17th Sample was obtained from Landon by means of a collection device known as the Intercept DOA Oral Specimen Collection Device manufactured by Orasure Technologies, Inc., ("Orasure") and was sent to Kroll for analysis. See, Complaint, at ~~7-9 (A8-A9). On that same day, shortly after the taking of the December 17th Sample, Landon independently obtained a blood test in order to protect himself from a false positive and this independent blood test 3 n, showed that Landon was negative for illicit and controlled substances. See, Complaint, at ~1 0 (A9). The December 17th Sample was received at Kroll's facility from the Probation Depar~ment on or about December 20, 2007, at which time it was initially screened by Kroll to determine whether it contained any illicit or controlled substances. Such screening was performed by Kroll in accordance with its standard policy and practice of using the Micro-Plate EIA developed by Orasure to preliminarily determine whether the oral fluid contained drug material which exceeded a screening cutoff level for such drug. See, Complaint, at ~11 (A9). Upon such initial screening, the December 17th Sample was determined by Kroll to contain amounts of cannabinoids which exceeded Kroll's screen test cutoff level for such substant=es; to wit, 1ng/ml. See, Complaint, at ~12 (A9). By a written report dated December 20,2007, Kroll informed the Probation Department that the December 17th Sample screen tested positive for THC. See, Complaint, at ~19 (All) The Complaint alleges that Kroll's report to the Probation Department was issued negligentty and as part of a policy of deliberate indifference to the rights of Landon and others similarly situated in that: (1) Kroll's oral fluid screen test cutoff level for THC was substantially lower than Orasure's recommended screen test 4 cutofflevel for THC2 and Kroll failed to disclose this with its report; (2) Kroll's oral fluid screen test cutoff level for THC was substantially lower than the screen test cutoff level for THC proposed by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSAi and Kroll failed to disclose this with its report; (3) no simultaneous urine sample was taken from Landon on December 17, 2007, as proposed by SAMHSA,4 and Kroll failed to disclose this with its report; (4) Kroll's testing of the December 17th sample did not comply with the relevant N.Y.S. Department of Health Forensic Toxicology Laboratory Standards, including the requirement that no positive result may be reported unless the sample was subjected to confirmation 2 At the time the December 17th Sample was screened by Kroll, Orasure's recommended screen test cutoff level for THe was 3.0 ng/ml, or 2.0 ng/ml higher than the cutofflevel used by Kroll. See, Complaint, at ~13 (A9-AIO). 3 At that time, the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration's (SAMHSA'S) proposed screen test cutoff level for oral fluid for THC was 4.0 ng/ml, or 3.0 ng/ml higher than the cutoff level used by defendant. See, Complaint, at ~14 (AIO). 4 SAMHSA' S 2004 proposed revisions to its mandatory guidelines for Federal Workplace Drug Testing state that when an oral fluid sample is taken, in order to "protect Federal workers from incorrect test results for marijuana, a second biological specimen, a urine specimen, will need to be collected at the same time the oral fluid specimen is obtained." See, Complaint, at ~ 17 (A I 0). Prior to and during December, 2007, and at all times thereafter, Kroll has had actual and/or constructive notice that SAMHSA'S 2004 proposed revisions to its mandatory guidelines for Federal Workplace Drug Testing constituted the industry-wide standard for forensic drug testing. See, Complaint, at ~18 (AIO-AII). 5 testing,5 and Kroll failed to disclose this with its report; and (5) Kroll had knowledge of the potential for false positive readings for THC when using oral fluid without a simultaneous urine sample and failed to disclose this with its report.6 See, Complaint, at ~20 (AII-AI2). In sum, the Complaint alleges that Kroll (I) "undertook to perform forensic toxicology testing", (2) "was negligent in the performance of this undertaking" and (3) "did not use reasonable care under the circumstances, as evinced by the general customs and practices that others in the field of forensic toxicology testing would reasonably use in the same situation." Landon, 91 A.D.3d at 84-85. On or about December 20,2007, the Probation Department received Kroll's report of Landofi's purported positive drug screen result and filed a violation of probation ("VOP") petition with the Orange County Court seeking to revoke Landon's probationary sentence and have Landon resentenced to a period of 5 The NYS Department of Health Laboratory Standards for the holding of a Forensic Toxicology Laboratory Permit (specifically, Forensic Standards Nos. 6 and 21) required that the December 17th Sample be subjected to gas chromatography-mass spectrometry (GC:lMS) testing and confirmatory testing before being reported as positive. See, Complaint, a~ ~16 (AID) 6 Notably, Kroll's knowledge of the need for a simultaneous urine sample was memorialized in a letter written by Kroll to the U.S. Department of Health and Human Services in which"Kroll recommended against using oral fluid drug testing as an alternative to urine testing in the Federal Workplace Drug Testing program. Kroll stated in that letter that '