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January 30, 1997

JOSE A. SANTIAGO, Plaintiff,

The opinion of the court was delivered by: MUNSON

 Defendants move for summary judgment in this case concerning the repercussions of an allegedly botched drug urinalysis. The court entertained oral argument on October 11, 1996 at its regular motion term in Syracuse, New York. The following constitutes the memorandum-decision and order of the court.


 The plaintiff in this matter is a bus driver by profession, having been first hired by the Trailways company in 1980. The defendant Greyhound Lines acquired Trailways in July 1987. At that time plaintiff was based out of New York City. Soon after the buy-out plaintiff requested and was granted a transfer to Albany.

 On September 16, 1988 plaintiff reported to the defendant Dr. Dominic J. Belmonte, who at that time maintained an occupational medicine practice under the name of Albany Industrial Physicians. Plaintiff was to undergo a routine physical examination and drug screen. Plaintiff had been similarly examined and tested when he was initially hired by Trailways in 1980, and every two years thereafter. Dr. Belmonte regularly performed these physicals and urinalyses for Greyhound drivers in the Albany area. Greyhound did not provide a procedures manual for drug tests performed on their employees. Although Dr. Belmonte's office collected the urine samples, they were commonly sent to various outside laboratories for testing. Some of those labs provided Dr. Belmonte with their own procedures manuals -- it appears that the codefendant Laboratory Specialists, Inc. ("LSI") did not.

 When a Greyhound employee came into Dr. Belmonte's office, the employee brought a chain of custody form, and plaintiff did so on that day. The top portion was completed by plaintiff's supervisor, District Manager Michael Hoffman. The middle portion was to be completed by the office collecting the urine sample (with a signature line for the driver producing the specimen), and the bottom portion was for the testing laboratory's results. The employee would check in with the receptionist, but he was not required to furnish photographic identification. A brief physical would be performed. Greyhound's testing laboratory, the defendant LSI, had provided Dr. Belmonte with some testing kits. The employee would fill a collection cup in a bathroom and then bring the cup to a desk where the urine was collected. The specimen was poured from the cup into a screw cap bottle. The bottle would be screwed shut, and then secured with tamper evident tape. A label or seal of some sort would be attached to the bottle. The employee was supposed to initial the label in the presence of one of the doctor's employees, who would put identification information on the label. The whole bottle would be placed in a plastic bag which would also be sealed with tamper evident tape. The chain of custody form would then be signed by the Greyhound employee and witnessed by one of the doctor's employees. The bag was put in a mailer along with the form, then placed in a lockbox for pickup by a courier.

 In plaintiff's case, everything went according to the normal procedure until he took the cup with the specimen sample in it out of the bathroom to the collection desk. Plaintiff arrived at 3:30 PM and was examined by a physician's assistant at Dr. Belmonte's office. After voiding in the cup, he took the specimen to the collection desk. Dr. Belmonte's office manager was at the desk and plaintiff put the cup down and left. It is disputed whether there were several cups of specimen there, or just the plaintiff's. After plaintiff left, Anthony Chouffi, one of Dr. Belmonte's employees who was responsible for collecting urinalysis samples, relieved the office manager and noticed that she had neglected to have plaintiff initial the bottle or complete the chain of custody form. Chouffi signed Santiago's name in the appropriate space then signed his own name in the witness space. The sample was put in a special mailer provided by LSI and sent out the following Monday, September 19, 1988.

 LSI, a Louisiana laboratory, had an agreement with Greyhound to perform all their urinalysis testing. LSI received the mailer with the chain of custody form which had been completed by Chouffi and the sealed plastic bag containing the sealed bottle of urine. There is no contention that LSI's testing was faulty. The sample tested positive for cocaine metabolites.

 Plaintiff turned down the offer and commenced suit. Plaintiff is suing Greyhound on the following theories: counts (1) and (3) -- national origin/ethnic/race discrimination under federal and state law; (2) breach of employment contract; and (4) and (5), two negligence/wrongful discharge theories. Plaintiff is suing LSI and Dr. Belmonte on negligence theories, counts (6) and (8) of the amended complaint. Dr. Belmonte is also being sued for negligent misrepresentation, count (7). All three defendants have cross-claimed for contribution or indemnification. Analysis commences below.


 The standards for granting summary judgment pursuant to Fed. R. Civ. P. 56 are governed by a familiar triumvirate of 1986 Supreme Court cases. The movant bears the initial burden of persuading the court that the record demonstrates "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Genuine issues exist if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Once a movant has carried her initial burden, the respondent "must do something more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In evaluating a summary judgment motion, the court must view the facts in the light most sympathetic to the nonmovant. Matsushita, 477 U.S. at 587 (quotation omitted). The district judge's inquiry is whether a triable issue exists with respect to the claim being moved upon -- that is, whether there is enough of a material dispute over key facts that the finder of fact could reasonably decide either way. See Anderson, 477 U.S. at 250.

 The motions of the various defendants are treated seriatim, starting with Dr. Belmonte's.

 A. Dr. Belmonte

 Dr. Belmonte argues in the first instance that plaintiff's negligence theories against him must fail because as a matter of law, a medical office owes no duty to a patient to perform a urinalysis competently. A finding of duty is naturally a prerequisite to negligence liability in New York. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99, 99-100 (N.Y. 1928). Duty is defined by the foreseeability of the plaintiff and by policy factors (including of course the relevant precedents), and is a legal question for the court to decide. Burke v. Warren County Sheriff's Dep't, 916 F. Supp. 181, 185-86 & n.4 (N.D.N.Y. 1996).

 For support of the specific proposition, Dr. Belmonte cites Hall v. United Parcel Service, a case in which the New York Court of Appeals refused to recognize a cause of action for the negligent administration of a polygraph test by a detective agency. 76 N.Y.2d 27, 555 N.E.2d 273, 556 N.Y.S.2d 21 (N.Y. 1990). *fn1" In Hall UPS hired a detective bureau to investigate a theft. The plaintiff and other UPS employees consented to undergo a polygraph examination. Plaintiff flunked the test and was forced to resign. The plaintiff brought suit, asserting inter alia that the detective bureau negligently administered the polygraph test. In a short memorandum the Fourth Department held that the detective agency owed no duty to plaintiff. 151 A.D.2d 984, 544 N.Y.S.2d 250 (N.Y. App. Div. 1989). After a much more comprehensive duty analysis, the Court of Appeals affirmed.

 The Hall court initially observed that "the problematic aspect of this case is not the absence of a contractual relationship between plaintiff and defendants, but rather the nature of the harm for which plaintiff seeks a remedy." 76 N.Y.2d at 32, 555 N.E.2d at 276, 556 N.Y.S.2d at 24. The nature of the harm for which the plaintiff was seeking relief -- viz. injury to personal and professional reputation -- was traditionally redressed through the tort of defamation. Id. Plaintiff however was precluded from asserting that cause of action because absent a showing of actual malice the detectives had a qualified privilege to disclose the polygraph results to the employer. 76 N.Y.2d at 32-33, 555 N.E.2d at 276-77, 556 N.Y.S.2d at 24-25.

 Finding little helpful precedent, the Court of Appeals resorted to policy factors to determine whether a new cause of action should be recognized. Social considerations did raise concern about the use of polygraph tests in the employment context. But Judge Titone, writing for the court, did not find those concerns dispositive:

The conclusion that some governmental oversight and regulation may be desirable, however, does not necessarily lead to the further conclusion that a new tort cause of action should be established to address the problem.

 76 N.Y.2d at 34, 555 N.E.2d at 277, 556 N.Y.S.2d at 25. The task of ameliorating social problems relating to the use of polygraph testing in employment situations was one best left to the legislature. The Hall court found significant the fact that several statutes provided some relief to persons aggrieved by unreliable polygraph examinations. See N.Y. Gen. Bus. Law § 74(1)(b) (McKinney 1988) (causes of action for the "wilful, malicious and wrongful" acts of private investigators allowed); N.Y. Gen. Bus. Law § 380-j(g) (McKinney 1996) (consumer credit reporting agencies cannot rely on polygraph or other lie detector tests). Even more persuasive was the lack of reference to polygraph tests in the labor code, despite the fact that "psychological stress evaluator" exams are expressly prohibited. See N.Y. Lab. Law §§ 734(1) & 735(1) (McKinney 1988). Applying the familiar maxim of expressio unius est exclusio alterius, the Hall court opined that the state legislature's proscription of some types of lie detectors, but not all, "suggests that this court should stay its own hand and refrain from crafting additional remedial measures." 76 N.Y.2d at 34-35, 555 N.E.2d at 278, 556 N.Y.S.2d at 26.

 Finally, the Court of Appeals found the Employee Polygraph Protection Act of 1988, Pub. L. 100-347, 102 Stat. 646 (codified at 29 U.S.C. §§ 2001-2009), particularly relevant to the decision of whether or not to recognize a new tort. That Act places many substantive restrictions on the use of polygraphs in the workplace, and authorizes civil and injunctive actions by the Secretary of Labor and private actions by aggrieved employees to enforce its provisions. The existence of this legislation strongly influenced the Court of Appeals to disapprove of the recognition of a new tort remedy.

 The Supreme Court of Texas relied partially on Hall in holding that a drug tester retained by an employer to screen a potential employee owes no duty to that employee to warn her about the possible effects of consuming poppy seeds prior to the test. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351-54 (Tex. 1995). The United States Court of Appeals for the Fifth Circuit subsequently interpreted SmithKline as support for the proposition that under Texas law the drug tester owes no duty of reasonable care to the employee. Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 316 (5th Cir. 1995). It should be noted that in both of these cases the laboratory performing the urinalysis was also responsible for collecting the sample, in contrast to the instant case.

 Authorities from other jurisdictions are mixed. The intermediate appellate courts of the state of Louisiana appear to disagree on whether an employee in plaintiff Santiago's position should be able to recover from a drug test administrator. See SmithKline, 903 S.W.2d at 351-52. Dr. Belmonte's codefendant, LSI, has convinced one Louisiana court to hold that a testing laboratory has no duty to competently analyze the urine of a plaintiff situated similarly to Santiago. Herbert v. Placid Refining Co., 564 So. 2d 371, 374 (La. Ct. App.), writ denied, 569 So. 2d 981 (La. 1990). The Herbert court analogized the action to one of negligent interference with contract, a tort not recognized in Louisiana. LSI has been less successful with two other intermediate courts. Nehrenz v. Dunn, 593 So. 2d 915, 917 (La. Ct. App. 1992); Elliott v. Laboratory Specialists, Inc., 588 So. 2d 175, 176 (La. Ct. App. 1991), writ denied, 592 So. 2d 415 (La. 1992); Lewis v. Aluminum Co. of Am., 588 So. 2d 167, 170 n.3 (La. Ct. App. 1991), writ denied, 592 So. 2d 411 (La. 1992). Nehrenz, Elliot, and Lewis were ostensibly distinguished from Herbert on the grounds that the last case did not involve a negligence charge; yet another Louisiana court has characterized this interpretation of Herbert as "doubtful," and this court concurs. Carter v. Smith, 607 So. 2d 6, 8 (La. Ct. App. 1992). In Lewis and Nehrenz LSI analyzed specimens collected by other offices. In Elliot and Herbert LSI both collected the samples and tested them.

 Maine's state court of last resort has declined to recognize any tort theory available to a plaintiff situated similarly to Santiago. Devine v. Roche Biomedical Labs., Inc., 637 A.2d 441, 447-48 (Me. 1993) (employer was the collector). The Eastern District of Pennsylvania has also refused to admit such a cause. Caputo v. Compuchem Labs., Inc., Civ. A. No. 92-6123, 1994 WL 100084, at *3 (E.D. Pa. Feb. 23, 1994), aff'd, 37 F.3d 1485 (3d Cir. 1994), cert. denied, 513 U.S. 1082, 130 L. Ed. 2d 636, 115 S. Ct. 733 (1995) (defendant tested but did not collect). Intermediate appeals courts in Illinois and Massachusetts, however, have allowed similar plaintiffs to proceed on negligence claims. Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 646 N.E.2d 930, 934, 207 Ill. Dec. 96 (Ill. App. Ct. 1995) (defendant was collector and tester); O'Connor v. SmithKline Bio-Science Labs., Inc., 36 Mass. App. Ct. 360, 631 N.E.2d 1018, 1020 (Mass. App. Ct.), review denied, 418 Mass. 1106, 639 N.E.2d 1082 (Mass. 1994) (defendant only tested sample; facts indicate chain of custody dispute). Cases from trial and intermediate appellate courts in Missouri, Ohio, and Delaware suggest that the cause of action is an available avenue for relief in the right circumstances. Irwin v. Wal-Mart Stores, Inc., 813 S.W.2d 99, 102 (Mo. Ct. App. 1991) (summary judgment to defendant on laboratory on absence of factual issues); Hall v. Bioquest Labs., Inc., Civ. A. No. 87 A-JL3, 1991 WL 138362 (Del. Super. Ct. June 17, 1991); see Powell v. Bethesda Hosp., Inc., 42 Ohio App. 3d 164, 537 N.E.2d 711 (Ohio Ct. App. 1988) (lab dismissed on lack of in personam jurisdiction).

 It is fair to say the case authorities are inconsistent. *fn2" And the Hall case, while persuasive and helpful, is not controlling. Polygraphs and urinalyses are distinct enough that this court believes the New York Court of Appeals would engage in fresh analysis to decide whether or not the common law of this state recognizes the action Santiago is attempting to pursue. This where Hall truly proves its value to the instant inquiry: by providing the model for answering the question.

 Of course the specific question before the court is whether Dr. Belmonte owed a legal duty to plaintiff in this matter. Issues concerning what dutiful obligations are owed to whom are commonly resolved by reference to relevant policy considerations. Palka v. Servicemaster Mgt. Servs., 83 N.Y.2d 579, 585, 634 N.E.2d 189, 192, 611 N.Y.S.2d 817, 820 (N.Y. 1994). As we have seen, the Hall court first examined social considerations recommending that judicial relief be available to redress the consequences of negligent polygraph exams, and found them strong. Counterbalanced against those interests though were state and federal statutes aimed at controlling abusive polygraph testing. This is the schedule this court will use.

 We begin by observing, as the Hall court did in relation to polygraphs, that drug screening has become commonplace in employment environments. Testing is performed

in 98% of all Fortune 200 companies. In a recent . . . survey of 1,151 employers. 77.7% of the employers acknowledged that they do some sort of drug testing. The surveyed companies reported testing 221,000 employees and 523,000 prospective employees in 1994.
David W. Lockard, Protecting Medical Laboratories from Tort Liability for Drug Testing, 17 J. Legal Med. 427, 427 (1996) (footnoted omitted).

 Partly due to governmental initiatives and partly to the perceived loss of productivity in American workers as a consequence of substance abuse, large companies drastically increased testing in the 1980s. Id. at 429-30. Indeed, drug testing itself has become big business: commercial laboratories earned a third of a billion dollars in testing revenue as early as 1990. Mark A. Rothstein, Workplace Drug Testing: A Case Study In The Misapplication of Technology, 5 Harv. J.L. & Tech. 65, 81 (1991).

 "Reasons have been advanced for curtailment or regulation of these tests," the Hall court offered, in relation to polygraphs. 76 N.Y.2d at 33, 555 N.E.2d at 277, 556 N.Y.S.2d at 25. The same is true for drug screening. Even though the National Institute on Drug Abuse (NIDA), an agency of the Department of Health and Human Services, has promulgated guidelines for drug testing since 1987, federal law does not generally require that laboratories and collection points utilized by private employers adhere to them. Shane J. Osowski, Comment, Urinalysis Drug Testing of Employees at Will: The Need For Mandatory Standards, 11 N. Ill. U.L. Rev. 319, 332 (1991). Those NIDA guidelines, incidentally, prescribe strict chain of custody rules. Id. at 329-30. It was reported that as of 1996 only ...

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