Jones, et al. v. City of Boston, Boston Police Department, et al.

MEMORANDUM in Support re MOTION for Leave to File third party complaint

D. Mass.October 12, 2007

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS C.A. NO. 05-CV-11832-GAO ____________________________________ RONNIE JONES, RICHARD BECKERS, ) WALTER R. WASHINGTON, WILLIAM ) E. BRIDGEFORTH, SHAWN N. HARRIS, ) EUGENE WADE, GEORGE ) C. DOWNING, JR., CLARARISE ) BRISTOW, and the MASSACHUSETTS ) ASSOCIATION OF MINORITY LAW ) ENFORCEMENT OFFICERS, ) ) Plaintiffs ) vs. ) ) CITY OF BOSTON, BOSTON POLICE ) DEPARTMENT, and KATHLEEN ) O’TOOLE, as she is Police Commissioner ) for the Boston Police Department, ) ) Defendants ) ____________________________________) DEFENDANT CITY OF BOSTON’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT AGAINST PSYCHEMEDICS CORPORATION I. BACKGROUND This case is based on claims made by individual officers and MAMLEO, an organization “represent[ing] the interests of all BPD law enforcement personnel and applicants of color” (First Amended and Supplemental Complaint, ¶ 24). Plaintiffs allege that the hair testing program in place at the BPD is “flawed” and results in “racially biased” results, and is unlawful because it has a disparate impact on officers and candidates of color, used despite the availability of alternative testing methods and procedures, and constitutes discrimination. (First Amended and Supplemental Complaint, ¶ ¶ 1, 2). Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 1 of 7 2 Plaintiffs specifically attack the validity of the hair test that is performed by Psychemedics Corporation, the laboratory that performs the hair drug test under contract with the City. See Plaintiffs’ Memorandum in Support of Plaintiff’s Motion to Compel, docket number 60, at page 2: “Psychemedics’s flawed, imprecise, unreliable, arbitrary, and racially biased drug test performed on hair samples (the “Hair Test”) is at the heart of this civil rights action…” Currently, the Plaintiffs’ Motion to Compel Psychemedics to produce its standard operating procedures is pending before the Court. The Court has scheduled a hearing on the pending discovery motions, including all motions to compel, for October 24, 2007. By agreement, the Court and the parties have divided the discovery events of the case into roughly two stages, the first dealing with issues impacting the claims common to all plaintiffs, and the issues peculiar to each plaintiff during the second. In so doing, the Court directed that the litigation was primarily concerned with the accuracy and validity of the hair drug test. See Electronic Clerk’s Notes for proceedings held before Judge George A. O’Toole Jr., entered on the docket on February 9, 2006: The court sets a status conference to take the temperature of the case as counsel proceed along with the idea being primarily to the science but to the extent that that requires knowing what happened to single people, aspects of reliability and so on. To date, none of the discovery conducted has involved the science of hair drug testing, and the parties have agreed that all expert discovery will be commenced only after the Court has ruled on the pending motions to compel. See Docket Number 44. The City and Psychemedics are parties to a contract for the provision of hair drug testing services. The contract contains an Amendment to the City’s standard contract that sets forth express indemnification provisions, in pertinent part as follows: Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 2 of 7 3 7.2 The Contractor shall bear all loss resulting from the Contractor’s wrongful or negligent acts or omissions before performance of services is completed and after performance of services if the service or work product fails to conform to specifications. …. 7.3 The Contractor shall assume the defense of and hold the City, its officers, agents or employees, harmless from all suits and claims against them or any of them arising from any wrongful or negligent act or omission of the Contractor, its agents or employees, in any way connected with performance under this Contract. … Contract 99-2807 (1998 – 1999) attached hereto as Exhibit A1. The City seeks leave, pursuant to Rule 14(a), to file a Third Party complaint against Psychemedics for indemnification and contribution. A copy of the proposed complaint is attached as Exhibit B. II. ARGUMENT A. Standard Of Review Federal Rules of Civil Procedure, Rule 14(a), provides that “At any time after the commencement of an action the defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or who may be liable to the third-party plaintiff for all or part of the plaintiff’s claim against the third-party plaintiff.” If the third-party seeks to file the third-party claim more than ten days after serving the original answer, the party must obtain leave of court upon notice to all parties to the action before so filing. F.R.Civ.P. Rule 14(a). Whether to allow that leave is a matter of discretion of the district court, which should allow impleader on any colorable claim of derivative liability that will not unduly delay or otherwise prejudice the ongoing proceedings. Lehman v. Revolution Portfolio, LLC, 166 F.3d 389, 393 (1st Cir. 1999). Among the factors to be considered by the district court is 1 The successor, annual contracts contain the same language, and are not reproduced herein since the substance of the contract is unchanged. Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 3 of 7 4 the merit or substance of the third party complaint. Davis et al. v. Protection One Alarm Monitoring, Inc., 2005 WL 3728711 (D.Mass.) 1. The Proposed Third Party Complaint is Meritorious As is clear in this case, the “heart” of the action is whether the testing procedures used by Psychemedics are reliable. The City’s liability to the Plaintiffs, if any, will only stem from a finding that Psychemedics’s procedures are, as Plaintiffs claim, flawed or unreliable. Pursuant to the contract between the City and Psychemedics, Psychemedics has expressly contracted to indemnify the City for any loss occasioned by its wrongful acts, omissions, or negligence. Thus, should there be a finding that Psychemedics protocols are insufficient in any respect, and should damages be charged against the City as a result, Psychemedics is contractually obliged to protect the City from those damages. Similarly, by statute, “whenever two or more persons are jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” G.L. c. 231B § 1(a). According to the interpretation by the Supreme Judicial Court, “the language of this statute requires that the potential contributor be directly liable to the plaintiff.” Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526 (1978). Because the basis of liability, if any, against the City would be only occasioned by a failure of Psychemedics’s testing procedures, Psychemedics is potentially directly liable to the Plaintiffs in this case. 2. Allowance Of The Third-Party Complaint Will Not Cause Prejudice or Delay Although fact discovery has been conducted by the parties, it is undisputed that all discovery related to the Psychemedics protocols and the science of hair testing, in general, has not yet commenced. Discovery in fact has been limited to Plaintiffs’ Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 4 of 7 5 examination of the various City officials who have been involved in the decision to implement hair drug testing, in union negotiations, and in the imposition of discipline upon notification of a positive test result. None of these discovery events touch upon the potential liability of Psychemedics, and it cannot claim any prejudice for not having appeared as a party defendant in the fact discovery component of this litigation. Allowing the City to file its third-party complaint will not occasion any delay in this action. As already discussed, expert discovery is held in abeyance with the Court’s permission pending the resolution of the outstanding motions to compel. Psychemedics is already a party to one motion, that addressing the ability of Plaintiffs to obtain the laboratory’s standard operating procedures. Thus, Psychemedics is likely to be intimately involved in expert discovery, at least to the extent that some or all of its laboratory procedures will be reviewed, and its scientists potentially deposed. Since none of these events have yet been scheduled, and since Psychemedics has been on notice and able to protect its interest since Plaintiffs subpoenaed their documents, no delay in this matter is anticipated if Psychemedics becomes a party defendant. 3. The Interests of Judicial Economy Favor Impleader The expert issues in this case are wholly related to the procedures used by Psychemedics in performing its hair drug testing. It makes sense for Psychemedics to be involved in this case not only as witness, but as a party fully able to participate in the anticipated expert discovery. Psychemedics is better poised to defend its standard operating procedures against Plaintiffs’ challenges than is the City, and allowing it to do so in this initial litigation could potentially eliminate the need for any successor litigation should the Plaintiffs’ prevail. If Psychemedics were not a party to this action, it is conceivable that a second litigation could result from this action, wherein the City invokes its right to indemnity under the contract, and Psychemedics challenges any Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 5 of 7 6 finding that its procedures were flawed. Any such finding may no be used as res judicata or collateral estoppel if Psychemedics did not have an opportunity to litigate the issue in the first action. Innovad Inc. v. Microsoft Corp., 260 F.3d 1326, 1334 (Fed.Cir.2001). Thus, it would be possible that the City would be forced to relitigate the same issues in subsequent litigation – needlessly, since the issues could be resolved definitively if Psychemedics were made a party to this action. III. CONCLUSION For the reasons stated herein, the City requests that the Court grant it leave to file a third-party complaint against Psychemedics Corporation in this action. Respectfully submitted, Defendants City of Boston, Boston Police Department, and Kathleen O’Toole By their attorney, __/s/ Mary Jo Harris_____________ Mary Jo Harris, BBO # 561484 Morgan, Brown & Joy, LLP 200 State Street Boston, MA 02109-2605 (617) 523-6666 Dated: October 12, 2007 CERTIFICATE OF SERVICE I, Mary Jo Harris, hereby certify that this document was filed through the ECF system on October 11, 2007, and that a true paper copy of this document will be sent to those indicated as non registered participants on the Notice of Electronic Filing by first class mail on the same date. DATED: October 12, 2007 _/s/ Mary Jo Harris_________ Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 6 of 7 7 Case 1:05-cv-11832-GAO Document 74 Filed 10/12/2007 Page 7 of 7 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 1 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 2 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 3 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 4 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 5 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 6 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 7 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 8 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 9 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 10 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 11 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 12 of 13 Case 1:05-cv-11832-GAO Document 74-2 Filed 10/12/2007 Page 13 of 13 Case 1:05-cv-11832-GAO Document 74-3 Filed 10/12/2007 Page 1 of 5 Case 1:05-cv-11832-GAO Document 74-3 Filed 10/12/2007 Page 2 of 5 Case 1:05-cv-11832-GAO Document 74-3 Filed 10/12/2007 Page 3 of 5 Case 1:05-cv-11832-GAO Document 74-3 Filed 10/12/2007 Page 4 of 5 Case 1:05-cv-11832-GAO Document 74-3 Filed 10/12/2007 Page 5 of 5