Norman Perlberger, Esquire Attorney Pro Hac Vice for Plaintiffs
POMERANTZ PERLBERGER & LEWIS LLP
21 South 12th Street, 7th Floor
Philadelphia, PA 19107
(215) 569-8866
nperlberger@ppl-law.com
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOANNE ELIZABETH CLEVELAND, : CASE NO. CV 07 5642 BZ
CYNTHIA DANIELS, LAURA FUJISAWA, :
CAROLINE HOWE and TRACEY MOORE : MEMORANDUM OF POINTS AND
Plaintiffs : AUTHORITIES IN OPPOSITION TO
: DEFENDANT NMS LAB’S
vs. : MOTION TO DISMISS PLAINTIFFS’
: AMENDED COMPLAINT
:
: [Fed.R.Civ.P. 12(b)(6)]
COMPASS VISION, INC. and :
NATIONAL MEDICAL SERVICES, INC. : Amended Complaint filed: January 9, 2008
d/b/a NMS LABS :
Defendants : Date: March 19, 2008
: Time: 10:00 a.m.
: Courtroom: G
__________________________________________: Judge: Hon. Bernard Zimmerman
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT NMS LAB’S MOTION TO DISMISS PLAINTIFFS’
AMENDED COMPLAINT
PLAINTIFFS WAIVE ORAL ARGUMENT
PLAINTIFFS’ MEMO OF P & A OPPOSING NMS MOTION TO DISMISS CASE NO. CV 07 5642 BZ
Case 3:07-cv-05642-BZ Document 36 Filed 02/19/2008 Page 1 of 25
TABLE OF CONTENTS
PRELIMINARY STATEMENT …………………………………………………….…….…... 1
STATEMENT OF FACTS …………………………………………………………….…….... 2
I. Procedural …………………………………………………………………...… 2
II. Pertinent Allegations of the Complaint ……………………………….……..… 2
ARGUMENT ………………………………………………………………………….…..… 10
I. Standard of Review ………………………………………………….……..… 10
II. The Complaint Alleges Viable Claims for Negligence …………….….…..…. 10
III. A Claim for General Damages Should be Allowed…………………………… 13
CONCLUSION …………………………………………………………………….……….. 20
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Case No. CV 07 5642 BZ
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
NMS LAB’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
Case 3:07-cv-05642-BZ Document 36 Filed 02/19/2008 Page 2 of 25
TABLE OF AUTHORITIES
Federal Cases
Everest & Jennings, Inc. v. American Motorist Insurance Co.
23 F.3d 226, 228 (9th Cir. 1994) ……………………………………………………….. 10
Garlick et al. v. Quest et al.
USDC, New Jersey, Case No. 06-cv-6244 …………………………………………….. 1
Lee v. City of Los Angeles
250 F.3d 668, 688 (9th Cir. 2001)…………………………………………….…….……. 10
Navarro v. Block
250 F.3d 729, 732 (9th Cir. 2001)……………................................................................... 10
Quisenberry v. Compass Vision et al.
USDC, Southern Dist. CA, Case No. 07 CV 1135 BEN AJB ………….………….…… 1
Wilson v. Compass Vision et al.
USDC, Northern Dist. CA, Case No. C07-3431 BZ ………..……….. 1, 2, 10, 13, 17, 19
State Cases
Allen v. Jones
104 Cal. App. 3d 207, 215 (Cal. App. 3 Dist. 1980 ………………………………….. 18
Branch v. Homefed Bank
6 Cal. App. 4th 793 (1992) …………………………………………………………….. 18
Friedman v. Merck & Co.
107 Cal. App. 4th 454, 484 (Cal. App. 2 Dist. 2003)………………………………. 18, 19
Molien v. Kaiser Foundation Hospitals
27 C3d 916 (1980) ……………………………………………..….. 13, 14, 15, 16, 18, 19
Perez-Rocha M.D v. Comm. Of Pa.
(Commonwealth Court of Pa., No. 2225 C.D. 2006)…………………….……… 11, 12, 13
Rowland v. Christian
69 Cal. 2d 108, 112 (1968) ……………………………………………………………… 1
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Case No. CV 07 5642 BZ
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
NMS LAB’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
Case 3:07-cv-05642-BZ Document 36 Filed 02/19/2008 Page 3 of 25
PRELIMINARY STATEMENT
The negligence claims made on behalf of the five plaintiffs, Joanne Elizabeth Cleveland,
Cynthia Daniels, Laura Fujisawa, Caroline Howe and Tracey Moore are very similar to the
negligence claim sustained against the same defendant, National Medical Services (“NMS”), in
the related Wilson case; wherein Your Honor has previously denied defendant’s 12 (b) (6)
Motion to Dismiss.1 The basis of defendant’s argument herein, that there is no duty under the
facts as pled, is the same as was made by the defendant and rejected by Your Honor in Wilson. It
is respectfully submitted that by the same reasoning, Your Honor should deny the instant motion
and allow the negligence claims of the plaintiff nurses and pharmacists herein. Plaintiffs
incorporate plaintiff’s arguments made in the Wilson response to NMS Labs’ motion to dismiss,
as if fully set forth herein. To avoid redundancy and respect Your Honor’s time, plaintiffs herein
will not rehash those arguments. Only where a new argument has been made, will it be addressed
herein.
The defendant has impertinently brought to Your Honor’s attention the “Not for
Publication” decision in Garlick et. al. v. Quest Diagnostics, Inc. et. al., an EtG lawsuit now on
appeal in the Federal District Court of New Jersey. The citation and argument of Garlick is the
basis of the concurrent Motion to Strike before Your Honor.2 Plaintiffs continue to assert that
1 December 27, 2007 “Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss and
Setting Case Management Conference” of the Honorable Bernard Zimmerman in Deborah Wilson v.
Compass Vision, Inc. and National Medical Services, Inc., d/b/a NMS Labs, Case No. C07-3431 BZ
2 Since this response is due prior to any decision in plaintiffs’ motion to strike, a short argument is made
that unlike in Your Honor’s opinion in Wilson and Judge Benitez’ reasoning in Quisenberry, with which
Your Honor agreed and adopted, no Rowland v. Christian analysis was made by Judge Cavanaugh in
Garlick. Moreover Judge Cavanaugh was under the incorrect assumption (page 10) that it was not alleged
that the defendants there “decided”… “what levels of EtG would be used to constitute positive results” In
the instant case, as in Wilson, there are clear allegations that the defendant set the cut offs too low. As
Your Honor wrote in footnote 5 of the Wilson opinion, “Plaintiff alleges that defendant negligently set the
EtG cut off level so low that plaintiff tested false positive twice.”
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Your Honor should not consider a “Not for Publication” opinion.
The plaintiffs herein have pled in their Amended Complaint so as to amplify the factual
bases for their claims for general damages, including injury to their reputations and credibility in
their professions (as nurses or pharmacists) and humiliation and emotional distress.3 The main
thrust of the argument made herein is to the appropriateness of allowing general damages.
STATEMENT OF FACTS
I. PROCEDURAL
Plaintiffs filed the original Complaint on November 6, 2007. On December 21, 2007 counsel
for NMS accepted service. Plaintiffs Amended Complaint was filed as of right on January 9, 2008,
prior to any responsive pleading being filed to the Complaint. On January 17, 2008, counsel for
NMS accepted service of the Amended Complaint. On January 29, 2007 defendant NMS filed the
instant motion in accord with Your Honor’s scheduling Order after the Case Management
Conference in the related Wilson case.
II. PERTINENT ALLEGATIONS OF THE AMENDED COMPLAINT
There are general allegations in the Amended Complaint made as to the defendant NMS, that
are pertinent to all five plaintiffs, as well as facts pled specifically to each plaintiff.
A. The General Allegations Relevant To This Motion Are That:
NMS, a drug testing laboratory, became a leading proponent of urine testing for ethyl
glucuronide as proof of the drinking of alcoholic beverages, touting the test as the “gold standard.”
3 A similar amplification was made in the Amended Complaint in Wilson, pursuant to Your Honor’s grant
of leave to file an Amended Complaint to articulate “allegations which might support an award of
emotional distress damages” as were made during oral argument in Wilson before Your Honor.
PLAINTIFFS’ MEMO OF P & A OPPOSING NMS MOTION TO DISMISS CASE NO. CV 07 5642 BZ
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NMS, without conducting adequate scientific or medical studies, negligently claimed and continues
to claim that EtG is not detectable in urine, at cut offs it set, unless an alcoholic beverage has been
consumed. The set cut-offs are arbitrary. The California Boards of Nursing and Pharmacy, on behalf
of nurses and pharmacists in their respective recovery programs, including plaintiffs Joanne
Elizabeth Cleveland, Cynthia Daniels, Laura Fujisawa, Caroline Howe and Tracey Moore, relied on
NMS’ claims as to the validity of the EtG test in instituting EtG testing. NMS performed the tests,
and reported and interpreted the results to the Boards, of the EtG testing upon nurses and
pharmacists, including the plaintiffs. NMS claimed and reported on their written report, that a result,
at or above the cut off, was proof that the person tested drank an alcoholic beverage, in violation of
their recovery. (Paragraphs 9, 10, 14, 19-21, and 23 of the Amended Complaint)
NMS knew that these plaintiffs would be in jeopardy of losing their licenses and jobs, and
would suffer damage to their credibility and reputations, if they were reported as testing positive.
(Paragraphs 31, 33, 34 and 35) On September 28, 2006, after hearings, the Substance Abuse and
Mental Health Services Administration (SAMHSA) advised that EtG testing, for use as proof that an
individual prohibited from drinking had truly been drinking, was scientifically unsupportable and
should not be used for disciplinary action. Despite this advisory and other warnings and information
on the invalidity of the EtG test, NMS continued and continues to promote its use to detect the
drinking of alcohol in those who are in recovery. (Paragraphs 26-31)
NMS by promoting, advertising, marketing, selling, and/or contracting with the licensing
boards, and/or utilizing, reporting and interpreting the EtG test to allegedly establish that the
plaintiffs consumed an alcoholic beverage, had a duty to use a reasonable degree of care to avoid
erroneous test results. Because of the obvious, foreseeable, serious and devastating consequences
(including, but not limited to damage to plaintiff’s reputation, credibility and emotional well being)
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of reporting that the results were positive (within cutoffs established by the defendants), defendants
had to use a reasonable degree of care to avoid erroneous test results to the foreseeable test subjects,
including the plaintiffs. (Paragraphs 32, 35)
NMS instead acted negligently and recklessly by: marketing their tests without conducting
adequate scientific or medical studies, establishing cutoffs over which test results would be reported
as “positive” that were arbitrary and scientifically unreliable and invalid, promoting the EtG test with
unsupported and false statements that a positive EtG test would unequivocally establish that the
subject individual had consumed alcoholic beverages, publishing warnings that the failure to conduct
such a test would be negligence on the part of an employer or licensing board, falsely asserting that
the EtG test was the “gold standard” in ferreting out former alcoholics or drug users who were
resuming or beginning to engage in prohibited alcoholic consumption in occupations requiring a “zero
tolerance”, falsely asserting that EtG is not detectable in the urine unless an alcoholic beverage has
been consumed, thereby concealing that incidental or involuntary exposure or consumption of
products containing alcohol could result in positive findings, failing and refusing to re-evaluate and
re-set cutoff limits at levels that were scientifically sound and reliable markers for detecting the
prohibited activity of alcoholic beverage consumption, and excluding other causes for their results,
failing to heed the warnings or cautionary advisories issued by Dr. Skipper, SAMHSA and others –
that the cutoff levels were unreliable and arbitrary, and that incidental use could trigger positive
results at levels at or above the cutoffs – and, instead, denying publicly and maintaining the warnings
were insufficient to discredit the EtG test and its cutoff limits, failing to protect the plaintiffs from
foreseeable substantial harm in the form of disciplinary and punitive measures, when their EtG test
systems were employed and relied upon for their accuracy and reliability, and utilizing, reporting and
interpreting the EtG results of plaintiffs to assert that plaintiffs were violating their recovery by
intentionally drinking alcoholic beverages. (Paragraph 36)
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It was foreseeable to NMS that false positive EtG results would severely damage the
reputation and credibility of nurses and pharmacists who were maintaining their recovery from
addiction, and that the apprehension of further false positives and the damage to their reputation
would cause severe anxiety and emotional distress to such professionals, who had spent years in
education to gain the right to practice their chosen profession, and who had in actuality maintained
their recovery by overcoming addictions in order to reestablish their reputations as competent
professionals. (Paragraph 37 )
Plaintiffs allege that the actions of NMS were wanton, reckless and outrageous. NMS’
actions concerning EtG and its sale of the testing program, as giving reliable and absolute proof
that a person had drank alcoholic beverages, were in reckless disregard of the lack of research
done and the damaging information that came to light about the test. (Paragraphs 23-30, 34, 36,
56, 72, 91, 107 and 122)
B. Specifically As To Each Plaintiff:
1. Joanne Elizabeth Cleveland - Nurse:
Despite working hard to regain her reputation by maintaining her recovery from pain
medication dependency for nearly two years, and her compliance with all aspects of her diversion
program, and despite her competently and soberly performing her job, NMS negligently performed
and interpreted four EtG tests as conclusive proof that Ms. Cleveland had violated her recovery
program by drinking alcoholic beverages. Ms. Cleveland continued to declare and maintain that she
had not drank alcoholic beverages in violation of her agreement, but she was labeled a liar, and not
believed, due to the actions of NMS, in maintaining that these EtG tests were proof that she had
drank alcoholic beverages. While in the program, Ms. Cleveland suffered severe apprehension and
anxiety from the fear of again having a false positive EtG test and from the possibility of suffering a
permanent stain on her license should she not be allowed to finish her program.
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As a result of the negligence and/or recklessness of NMS, Ms. Cleveland was not
allowed to work as a nurse for approximately four weeks and had her program extended. Eventually
Ms. Cleveland was forced to leave the diversion program when she was unable to afford unneeded
mandatory in-patient treatment, which the Board required as a result of her “positive” EtG tests, and
now faces at least three years of probation, with attendant costs, and the future loss of her license to
practice nursing. She now has damage to her reputation and credibility in her chosen profession and
a permanent stain on her license. The stain on Ms Cleveland’s license, her damaged reputation and
credibility, the apprehension that she would again have a false positive testing, and the probable
future revocation of her nursing license after years of education and commitment to her profession,
have caused plaintiff to suffer severe emotional distress, despite her knowing that she did not drink
alcoholic beverages and that these tests must have been false positives. Her monetary losses to date
total approximately $17,000 dollars.
(Paragraphs 39-56)
2. Cynthia Daniels - Pharmacist
Despite working hard to regain her reputation by maintaining her recovery from pain
medication dependency for nearly two years, and her compliance with all aspects of her diversion
program, and despite her competently and soberly performing her job, NMS negligently performed
and interpreted four EtG tests as conclusive proof that Dr. Daniels had violated her recovery
program by drinking alcoholic beverages. Dr. Daniels continued to declare and maintain that she had
not drank alcoholic beverages in violation of her agreement, but she was labeled a liar, and not
believed, due to the actions of NMS, in maintaining that these EtG tests were proof that she had
drank alcoholic beverages. While in the program, Dr. Daniels suffered severe apprehension and
anxiety from the fear of again having a false positive EtG test and from the possibility of suffering a
permanent stain on her license should she not be allowed to finish her program.
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As a result of the negligence and/or recklessness of NMS, Dr. Daniels was suspended
for over six months and not allowed to work as a pharmacist, had difficulty finding employment
after the suspension, was required to stay longer in the program and was required to have additional
testing. She now has damage to her reputation and credibility in her chosen profession and the threat
of a permanent stain on her license. The threat of a permanent stain on Dr. Daniels’ license, her
damaged reputation and credibility, the apprehension that she would again have a false positive
testing, and the possible future revocation of her pharmacy license after years of education and
commitment to her profession, have caused plaintiff to suffer severe emotional distress, despite her
knowing that she did not drink alcoholic beverages and that these tests must have been false
positives. Her monetary losses to date total approximately $120,000 dollars.
(Paragraphs 58-72)
3. Laura Fujisawa - Pharmacist
Despite working hard to regain her reputation by maintaining her recovery from pain
medication dependency for nearly two years, and her compliance with all aspects of her diversion
program, and despite her competently and soberly performing her job, NMS negligently performed
and interpreted six EtG tests as conclusive proof that Dr. Fujisawa had violated her recovery
program by drinking alcoholic beverages. Dr. Fujisawa continued to declare and maintain that she
had not drank alcoholic beverages in violation of her agreement, but she was labeled a liar, and not
believed, due to the actions of NMS, in maintaining that these EtG tests were proof that she had
drank alcoholic beverages. While in the program, Dr. Fujisawa suffered severe apprehension and
anxiety from the fear of again having a false positive EtG test and from the possibility of suffering a
permanent stain on her license should she not be allowed to finish her program.
As a result of the negligence and/or recklessness of NMS, Dr. Fujisawa has been
prevented from working as a pharmacist for over one year and was required to have additional
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testing and treatment. Dr. Fujisawa was terminated from her program as of about March 2007, and
faces revocation proceedings, for which she has had to hire an attorney. She now faces either years
of probation, with attendant costs, and/or the future loss of her license to practice as a pharmacist.
She now has damage to her reputation and credibility in her chosen profession and a permanent stain
on her license. The stain on Dr. Fujisawa’s license, her damaged reputation and credibility, the
apprehension that she would again have a false positive testing, and the probable future revocation of
her nursing license after years of education and commitment to her profession, have caused plaintiff
to suffer severe emotional distress, despite her knowing that she did not drink alcoholic beverages
and that these tests must have been false positives. Her monetary losses to date total more than
$105,000 dollars.
(Paragraphs 74-91)
4. Caroline Howe - Nurse
Despite working hard to regain her reputation by maintaining her recovery from pain
medication dependency for over a year, and her compliance with all aspects of her diversion
program, and despite her competently and soberly performing her job, NMS negligently performed
and interpreted seven EtG tests as conclusive proof that Ms. Howe had violated her recovery
program by drinking alcoholic beverages. Ms. Howe continued to declare and maintain that she had
not drank alcoholic beverages in violation of her agreement, but she was labeled a liar, and not
believed, due to the actions of NMS, in maintaining that these EtG tests were proof that she had
drank alcoholic beverages. While in the program, Ms. Howe suffered severe apprehension and
anxiety from the fear of again having a false positive EtG test and from the possibility of suffering a
permanent stain on her license should she not be allowed to finish her program.
As a result of the negligence and/or recklessness of NMS, Ms. Howe has had her
program extended; she was not allowed to work as a nurse for approximately 10 weeks; in January
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2007 she was prohibited from taking a nursing position that paid substantially more than what she
was then making; as of August 30, 2007 she had to leave her job with the Red Cross. She also has
been required to have additional testing, treatment and program attendance. She now has damage to
her reputation and credibility in her chosen profession and the threat of a permanent stain on her
license. The threat of a permanent stain on Ms. Howe’s license, her damaged reputation and
credibility, the apprehension that she would again have a false positive testing, and the possible
future revocation of her nursing license after years of education and commitment to her profession,
have caused plaintiff to suffer severe emotional distress, despite her knowing that she did not drink
alcoholic beverages and that these tests must have been false positives. Her monetary losses to date
total approximately $45,000 dollars.
(Paragraphs 93-107)
5. Tracey Moore - Pharmacist
Despite working hard to regain her reputation by maintaining her recovery from pain
medication dependency for over ten years, and her compliance with all aspects of her diversion
program, and despite her competently and soberly performing her job, NMS negligently performed
and interpreted one EtG test of 315 ng/ml as conclusive proof that Dr. Moore had violated her
recovery program by drinking alcoholic beverages. Dr. Moore continued to declare and maintain that
she had not drank alcoholic beverages in violation of her agreement, but she was labeled a liar, and
not believed, due to the actions of NMS, in maintaining that the EtG test was proof that she had
drank alcoholic beverages. Dr. Moore suffers from severe apprehension and anxiety from the fear of
again having a false positive EtG test and from the possibility of suffering a permanent stain on her
license should she not be allowed to finish her program.
As a result of the negligence and/or recklessness of NMS, Dr. Moore was suspended
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for one week and not allowed to work as a pharmacist, was ordered to test more often, and have
additional counseling. She now has damage to her reputation and credibility in her chosen profession
and the threat of a permanent stain on her license. The threat of a permanent stain on Dr. Moore’s
license, her damaged reputation and credibility in her chosen profession, the apprehension that she
would again have a false positive testing, and the possible future revocation of her nursing license
after years of education and commitment to her profession, have caused plaintiff to suffer severe
emotional distress, despite her knowing that she did not drink alcoholic beverages and that this test
must have been a false positive. Her monetary losses to date total approximately $4,000 dollars.
(Paragraphs 109-122)
ARGUMENT
I. STANDARD OF REVIEW
“A Rule 12 (b) (6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d
729, 732 (9th Cir. 2001) Review is limited to the contents of the complaint. Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001) A claim may be dismissed only if it appears beyond doubt
that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief.
Navarro, supra. In resolving 12 (b) (6) motions to dismiss, the Court must accept all of plaintiffs’
factual allegations as true and view all reasonable inferences in their favor. Everest & Jennings, Inc.
v. American Motorist Insurance Co., 23 F.3d 226, 228 (9th Cir. 1994)
II. THE COMPLAINT ALLEGES VIABLE CLAIMS FOR NEGLIGENCE
It is respectfully submitted that Your Honor has already decided the issue of whether
California Courts would find a duty on the part of defendant NMS to the persons in the position of
the plaintiffs, in the related Wilson case. While no new substantive arguments of significance have
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been made by defendant NMS to distinguish the instant claims, there are several new points made by
defendant that are either incorrect or out of context.
Defendant is incorrect in telling this Court that the Amended Complaint does not allege that
defendant NMS Labs breached any duty owed to the plaintiffs. Incorporated into each of the five
individual counts (one for each individual plaintiff) are the general allegations made in paragraphs
32, 35 and 36 of the Amended Complaint:
32. Defendants, by promoting, advertising, marketing, selling,
and/or contracting with the licensing board, and/or designing,
implementing, and managing the drug and alcohol testing program,
and/or collecting the urine samples and/or utilizing, reporting and
interpreting the EtG test to allegedly establish that the plaintiffs
consumed an alcoholic beverage, had a duty to use a reasonable degree
of care to avoid erroneous test results.
35. Because of the obvious, foreseeable, serious and devastating
consequences (including, but not limited to damage to plaintiff’s
reputation, credibility and emotional well being) of reporting that the
results were positive (within cutoffs established by the defendants),
defendants had to use a reasonable degree of care to avoid erroneous test
results to the foreseeable test subjects, including the plaintiffs.
Paragraph 36 and its subsections, detailed above in the relevant general allegations section of this
brief, allege how the defendant acted negligently and/or recklessly, i.e. breached the stated duty.
Perez-Rocha M.D v. Comm. Of Pa. (Commonwealth Court of Pa., No. 2225 C.D. 2006),
cited by the defendant, and attached as Exhibit 2 to its Request for Judicial Notice, is outdated and
inapposite. It is not determinative of whether or not a testing laboratory has a duty to a tested
individual. Whether or not one State Board was allowed, by the evidence then before it, to conclude
that the person who tested positive for EtG was in violation of her probation, is not relevant and has
no persuasive value to the issues before this Honorable Court in Defendant’s Motion to Dismiss.
The facts that were in evidence before the Court in Perez- Rocha are out of date with present
knowledge concerning the use of EtG testing. In that case, a three judge panel of the Pennsylvania
intermediate appellate court that hears appeals of decisions of governmental administrative hearings,
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upheld the decision of the Pennsylvania State Board of Medicine. The decision was based solely on
a review of the Board’s evidentiary hearing that took place in April, 2006. Perez- Rocha, page 7
That hearing predated the September 28, 2006 Substance Abuse and Mental Health Services
Administration (SAMHSA) Advisory on EtG testing that is quoted in Paragraph 30 of the Amended
Complaint.
Currently, the use of an EtG test in determining abstinence lacks
sufficient proven specificity for use as primary or sole evidence that an
individual prohibited from drinking, in a criminal justice or a
regulatory compliance context, has truly been drinking. Legal or
disciplinary action based solely on a positive EtG, or other test discussed
in this Advisory is inappropriate and scientifically unsupportable at this
time. These tests should currently be considered as potential valuable
clinical tools, but their use in forensic settings is premature.
This important recognition, of the inadequacy of the EtG test for the purpose of determining whether
the person testing positive was drinking, was not in evidence before the Board of Medicine, and was
therefore not part of the consideration of the Perez- Rocha decision.
Further proof of the opinion being out of date on the current knowledge concerning EtG
testing for use as proof of drinking, at the cut offs set by defendant NMS, is the suspension of the
test for use in monitoring physicians in diversion in Pennsylvania. Attached as Exhibit 1, is the
January 24, 2007 letter of the Medical Director of Physician’s Health Programs, sent out to
monitored physicians in Pennsylvania, serving notice that EtG testing was being suspended in
Pennsylvania.
Moreover the Perez- Rocha decision was based on the Frye test of general acceptance of the
EtG test in the scientific community. Whether the test was generally accepted at that time, does not
mean that there was no negligence by the defendant in promoting the test to reach that acceptance. It
also does not mean that it was not being negligently interpreted to the detriment of the plaintiffs. The
plaintiffs’ case herein is not dependent on whether the EtG test accurately tests for metabolites of
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alcohol, which is not disputed. The problem is that the omnipresence of alcohol in everyday products
in our society, limits the tests effectiveness in determining whether the presence of EtG in urine, at
the cut offs set by the defendant, is determinative of a person’s having drank an alcoholic beverage.
Thus whether the test is scientifically accurate in finding EtG in the urine of the tested person does
not exclude the negligent promotion and interpretation of the test in the context of the instant action.
Ironically, the Perez-Rocha decision provides evidence of defendant’s negligence in
promoting the use of EtG testing, since the Vice President of NMS laboratory operations, Anthony
G. Constantino testified at the medical board hearing that based on a positive finding at the then (and
now discredited) cut off of 250 ng/ml, Dr. Perez- Rocha must have drank in violation of her
probation. Perez- Rocha, footnote 2 on p.3, and p. 7
III. A CLAIM FOR GENERAL DAMAGES SHOULD BE ALLOWED
This Honorable Court has recognized that the finding of a duty and negligence action,
under the very similar facts of the related Wilson case, was an “issue of first impression” (Wilson
Order page 3) It is respectfully submitted that whether general damages are allowable should
also be treated as an issue of first impression. It is further submitted that just as foreseeability of
the harm is a major factor in the determination of whether to find a duty under the Rowland v.
Christian balancing test; the foreseeability of injury herein to credibility and reputation of the
plaintiffs and consequent emotional harm to them, should be determinative of the allowance of
general damages in this action.
A. California Law – Molien v. Kaiser Foundation Hospitals
It is not true, as argued by defendant, that under California law physical injury is
necessary for the allowance of emotional distress damages in a negligence action. The California
Supreme Court in Molien v. Kaiser Foundation Hospitals 27 C3d 916 (1980), in the context of
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an erroneously diagnosed infectious social disease, considered the question: “To what extent
should the law permit recovery of damages for the negligent infliction of emotional or mental
distress unaccompanied by physical injury?” The Court concluded: “As will appear, in the light
of contemporary knowledge we conclude that emotional injury may be fully as severe and
debilitating as physical harm, and is no less deserving of redress; the refusal to recognize a cause
of action for negligently inflicted injury in the absence of some physical consequence is therefore
an anachronism.” Molien at 918.
Mrs. Molien was negligently advised that she had syphilis. Mr Molien sued for his own
emotional distress and for his loss of consortium. The Court stated that “In the case at bar the
risk of harm to plaintiff was reasonably foreseeable to defendants. It is easily predictable that an
erroneous diagnosis of syphilis and its probable source would produce marital discord and
resultant emotional distress to a married patient's spouse…” ; but questioned whether the
husband could recover: “There remains the question whether plaintiff is barred from recovery by
the fact that he suffered no physical injury.” Molien at 923.
The Court explained: “The primary justification for the requirement of physical injury
appears to be that it serves as a screening device to minimize a presumed risk of feigned injuries
and false claims;” and “Although most courts still adhere to the early view, the scholars assert
that such artificial barriers to recovery are unnecessary.” Molien at 925, 926 In reviewing cases
in California that had allowed compensation the court stated:
Our courts have instead devised various means of compensating for the
infliction of emotional distress, provided there is some assurance of the
validity of the claim. As we have seen, physical injury, whether it occurs
contemporaneously with or is a consequence of emotional distress,
provides one such guarantee… Another arises when the plaintiff asserts
an independent cause of action apart from personal injury. Thus in a suit
against an insurer for damages resulting from its wrongful refusal to
settle a claim against the insured within the policy limits, the plaintiff
was permitted to recover for mental distress as well as for pecuniary loss.
We concluded: "Obviously, where, as here, the claim is actionable and
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has resulted in substantial damages apart from those due to mental
distress, the danger of fictitious claims is reduced, and we are not here
concerned with mere bad manners or trivialities but tortious conduct
resulting in substantial invasions of clearly protected interests." (citations
omitted)
Molien at 926, 927
The Court continued that the unqualified requirement of physical injury was not justified:
Although we recognize a need to guard against fraudulent claims, we are
not persuaded that the presently existing artificial lines of demarcation
are the only appropriate means of attaining this goal. As observed by
Presiding Justice Gardner in his concurring opinion in Allen v. Jones
(1980) 104 Cal. App. 3d 207 , 216 [ 163 Cal. Rptr. 445] , "In no other
area are the vagaries of our law more apparent than in the distinction
between mental and emotional distress accompanied by physical
manifestation and such discomfort unaccompanied by physical
manifestation."
The Hawaii Supreme Court confronted the issue forthrightly and
discarded the traditional rule that there can be no recovery for the
negligent infliction of emotional distress alone…
We agree that the unqualified requirement of physical injury is no longer
justifiable. It supposedly serves to satisfy the cynic that the claim of
emotional distress is genuine. Yet we perceive two significant difficulties
with the scheme. First, the classification is both overinclusive and
underinclusive when viewed in the light of its purported purpose of
screening false claims. It is overinclusive in permitting recovery for
emotional distress when the suffering accompanies or results in any
physical injury whatever, no matter how trivial. If physical injury,
however slight, provides the ticket for admission to the courthouse, it is
difficult for advocates of the "floodgates" premonition to deny that the
doors are already wide open: as we observed in Capelouto v. Kaiser
Foundation Hospitals, supra, 7 Cal. 3d at page 893 , "mental suffering
frequently constitutes the principal element of tort damages . . . ." More
significantly, the classification is underinclusive because it mechanically
denies court access to claims that may well be valid and could be proved
if the plaintiffs were permitted to go to trial.
The second defect in the requirement of physical injury is that it
encourages extravagant pleading and distorted testimony. Thus it has
been urged that the law should provide a remedy for serious invasions of
emotional tranquility, "otherwise the tendency would be for the victim to
exaggerate symptoms of sick headaches, nausea, insomnia, etc., to make
out a technical basis of bodily injury, upon which to predicate a parasitic
recovery for the more grievous disturbance, the mental and emotional
distress she endured." (Citations omitted)
Molien at 926-929
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The Court concluded, holding that whether a predictable emotional harm was serious
enough and genuine was a jury question and should not be screened by Courts at the pleading
stage :
In our view the attempted distinction between physical and psychological
injury merely clouds the issue. proof; whether the plaintiff has suffered a
serious and compensable injury should not turn on this artificial and
often arbitrary classification scheme…
As Justice Traynor explained in this court's unanimous opinion in State
Rubbish etc. Assn. v. Siliznoff, supra, 38 Cal. 2d at page 338 , the jurors
are best situated to determine whether and to what extent the defendant's
conduct caused emotional distress, by referring to their own experience.
…To repeat: this is a matter of proof to be presented to the trier of fact.
The screening of claims on this basis at the pleading stage is a usurpation
of the jury's function…
For all these reasons we hold that a cause of action may be stated for the
negligent infliction of serious emotional distress. Applying these
principles to the case before us, we conclude that the complaint states
such a cause of action. The negligent examination of Mrs. Molien and
the conduct flowing therefrom are objectively verifiable actions by the
defendants that foreseeably elicited serious emotional responses in the
plaintiff and hence serve as a measure of the validity of plaintiff's claim
for emotional distress. As yet another corroborating factor, we note the
universally accepted gravity of a false imputation of syphilis: by statute it
constitutes slander per se. ( Civ. Code, § 46 , subd. 2; Schessler v. Keck
(1954) 125 Cal. App. 2d 827 [ 271 P.2d 588]. )
Molien at 929- 931
Thus, in California, if there is sufficient foreseeability of emotional harm occurring as a
result of the defendants’ negligence, a claim for emotional distress should be allowed. It is a jury
question as to whether and to what extent the actions of the defendant caused the plaintiffs’
distress. There is no requirement of physical injury to establish the validity of a plaintiff’s claim
for emotional distress.
B. Applying Molien
It is respectfully submitted that the predictability of valid emotional harm in the instant case is at
least as strong as that in Molien. With the erroneous interpretation of a flawed drug test it is inevitable that
there will be injury to the tested person’s reputation. It is to be labeled a drunk, and at that a drunk who is
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unwilling to be truthful about their problem and who is therefore unfit for their work. Just as the
Court recognized about a false imputation of syphilis, a false imputation that one is an
unrepentant alcoholic unfit for their profession is also slander per se under California Civ. Code,
§ 46. A more powerful guarantee of emotional distress in the instant case is that the false
imputation is not second hand to one’s spouse, it is directly to the plaintiffs. Thus, the claimed
negligence is from “objectively verifiable actions” by the defendant that “foreseeably elicited
serious emotional responses” in the plaintiffs.
This distress for many of the plaintiffs was repeated over and over since they had
numerous false positives. Added is the fear of testing positive when you have no idea why it is
happening and when it may happen again. All of this with persons suffering from the illness of
addiction with fragile reputations to begin with, who when on the brink of victory, had the rug
pulled out from under them by the introduction of this faulty test into their program. For example
plaintiff Dr. Cynthia Daniels who after nearly two years of working hard to maintain her
recovery and regain her professional reputation, and within weeks of being eligible for transition
out of the program had four false positives that caused over six months of suspensions costing
her approximately $120,000.00. The genuineness of her emotional distress at her ruined
reputation cannot be questioned.
C. There Is No Requirement Under California Law That The Emotional Distress Be
“Highly Unusual”
As was argued before Your Honor, in Wilson, plaintiffs take issue with the reasoning of
Judge Benitez, concerning the claim for emotional distress damages, in the similar EtG
negligence case of Quisenberry. While Judge Benitez wrote “We cannot imagine a more
foreseeable harm than the harm that may result from inaccurate laboratory testing of individuals”
(Quisenberry Order page 7) ; he did not apply this reasoning when he dismissed the claim for
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emotional damages. With due respect to Judge Benitez, it is submitted that his dependence on
Allen v. Jones, 104 Cal. App. 3d 207, 215 (Cal. App. 3 Dist. 1980) and Friedman v. Merck &
Co., 107 Cal. App. 4th 454, 484 (Cal. App. 2 Dist. 2003) for the proposition that the emotional
distress must be “highly unusual as well as predictable” (Quisenberry Order page 9) is
unfounded. While the words “highly unusual” are found in Friedman, it is only in a quote from
Branch v. Homefed Bank 6 Cal. App. 4th 793 (1992). This quote, however, is an attempt by the
Lower Appellate Court panel in Branch to explain the holdings in Allen and Molien, neither of
which use those words or hold that the emotional distress must be “highly unusual” to be
recoverable.
Molien, being the definitive word from the California Supreme Court, specifically
addressed the need for California courts to stop screening out plausible and foreseeable claims
for negligent infliction of emotional distress at the pleading stage, on the basis of no physical
injury, where the risk of the emotional harm was foreseeable from objectively verifiable actions
of the defendant. To place a new hurdle, such as “highly unusual” emotional distress, not
specified by the Molien decision is against the specific directive of the California Supreme
Court.
The reasoning on which Judge Benitez distinguished the emotional distress in these false
positive Etg cases from the emotional harm in Molien is also flawed. He distinguished an
allowable claim, a husband of a patient misdiagnosed with syphilis, from a non allowable claim,
the false positive EtG drug test, on the basis that the EtG tested individual would know the result
was erroneous. This distinction in the scenario of employment drug testing is fatuous. As was
pled for all of the victims of this test, they successfully struggled against addiction, some for
years, with a regained reputation and professional credibility in sight; (The proverbial light at the
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end of a long dark tunnel). Then as a result of a flawed test; (A true biblical stumbling block in
front of the blind); they were labeled as drunks and liars, and prevented from working at their
chosen profession, despite knowing they had done everything asked of them to maintain their
recovery. Whether or not, as individuals, they know they are telling the truth, their world did not
believe them, their reputations were damaged and the humiliation from such treatment is clearly
foreseeable. The fact that it has happened to a substantial number of professionals gives added
guarantees to this Court of the validity of the emotional harm.
As argued before Your Honor in Wilson, this is obvious in the media circus now
revolving around Roger Clemens, the professional baseball player accused of taking steroids.
Whether or not he knows the accusation to be false, his reputation has been destroyed and many
are calling him a liar. If he is telling the truth, none would doubt his emotional distress and
anxiety from the injury to his reputation. In like manner there is genuineness to the claimed
emotional distress of the plaintiffs, even though they know the test was erroneous. The distress
comes from society’s judgment regardless of the truth.
D. Defendant’s Argument Is Unpersuasive
The cases cited by the defendant are all lower appellate court cases, not California
Supreme Court cases. Molien is the ruling precedent. Specifically, Friedman v. Merck & Co.,
107 Cal. App. 4th 454, is distinguishable. That court held that there was no duty as a matter of
law where the emotional distress claimed was unforeseeable since it was as a result of the vegan
plaintiff’s unique sensitivity to animal products in a perfectly good TB test. Here, as already
determined by Your Honor, there is foreseeable harm justifying a duty.
The emotional damages claimed are not incident to economic loss. They are the
foreseeable consequence from being labeled as a drug addicts and liars as a result of the false
positive EtG alcohol test, while truthfully maintaining recovery. The implication that they would
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lie about their recovery was humiliating, reasonably and foreseeably causing anxiety and
emotional distress. The stains on their licenses and its possible revocation and the uncertainty of
whether they would face another false positive despite not drinking added further anxiety and
insult. This invalid test caused a real and justified apprehension that they would no longer be
able to practice their chosen professions.
It would not be logical to recognize a duty due to an inevitable injury, and then not let the
plaintiff recover for that injury. NMS, by negligently promoting and interpreting faulty test, for
which they set cut off levels so low that many plaintiffs tested false positive numerous times,
caused the plaintiffs to be stigmatized as an incorrigible drug addicts, unfit to practice as nurses
and pharmacists. NMS should therefore be held accountable for the injuries flowing from the
loss of reputation and stigmatization, including emotional injuries. Defendant NMS’ motion to
dismiss plaintiff’s claims for emotional damages should therefore be denied.
CONCLUSION
For all the foregoing reasons set forth above, Plaintiff respectfully requests that this
Honorable Court dismiss the Motion of NMS to Dismiss Plaintiff’s Amended Complaint.
Dated:
Respectfully Submitted,
POMERANTZ PERLBERGER & LEWIS LLP
BY: /s/
Norman Perlberger, Esquire
Attorney Pro Hac Vice for Plaintiff
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Norman Perlberger, Esquire Attorneys Pro Hac Vice for Plaintiff
POMERANTZ PERLBERGER & LEWIS LLP
21 South 12th Street, 7th Floor
Philadelphia, PA 19107
(215) 569-8866
nperlberger@ppl-law.com
ehlewis@ppl-law.com
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOANNE ELIZABETH CLEVELAND, : CIVIL ACTION
CYNTHIA DANIELS, LAURA FUJISAWA, :
CAROLINE HOWE and TRACEY MOORE :
Plaintiffs :
:
vs. :
:
COMPASS VISION, INC. and : NO. CV 07 5642 BZ
NATIONAL MEDICAL SERVICES, INC. :
d/b/a NMS LABS :
:
CERTIFICATION OF SERVICE
NORMAN PERLBERGER, ESQUIRE, hereby certifies that service of Plaintiffs’ Memorandum
of Points and Authorities in Opposition to Strike Defendant National Medical Services, Inc.’s Motion to
Dismiss Plaintiffs’ Amended Complaint was made this date by ecf-filing to the following:
Catherine A. Salah, Esquire Christian Barrett Green, Esquire
Gordon & Rees, LLP Law Offices of Samuel G. Grader
275 Battery Street, Suite 2000 1680 Howe Street, Suite 350
San Francisco, CA 94111 Sacramento, CA 95825
/s/
NORMAN PERLBERGER, ESQUIRE
DATED: February 19, 2008
Case 3:07-cv-05642-BZ Document 36 Filed 02/19/2008 Page 25 of 25
