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Drake v. Laboratory Corporation of America Holdings

September 3, 2009


The opinion of the court was delivered by: Block, Senior District Judge


On August 26, 2009, the Court issued an electronic order granting the motions for summary judgment filed by defendants Laboratory Corporation of America Holdings ("LabCorp"), Northwest Toxicology, Inc. ("Northwest") and David J. Kuntz ("Kuntz"). The following is a memorandum of the Court's reasons for that order.


On December 23, 1993, plaintiff, Richard W. Drake ("Drake"), was fired from his job at Delta Airlines ("Delta"), ostensibly because he had adulterated a urine sample taken in connection with a federally mandated drug test. Since then, he has steadfastly denied that accusation. The long history of his case against Delta, as well as the present case against the testing labs and other individuals involved in the test, is set forth in several decisions of this Court and the Second Circuit:

A. Drake v. Delta

Proceeding pro se, Drake sued Delta in 1994; as amended, his complaint alleged that Delta's administration of his drug test violated the Fourth Amendment and certain federal regulations, and that his termination was wrongful and did not comport with procedural due process.

The Court dismissed the amended complaint in its entirety, see Drake v. Delta Airlines, Inc., No. 94-CV-5944, 1997 WL 397498 (E.D.N.Y. July 10, 1997), but the Second Circuit reinstated Drake's claim that the test violated the Fourth Amendment, liberally construing his pro se pleadings to allege that he had not been randomly selected for testing. See Drake v. Delta Airlines, Inc., 147 F.3d 169, 171 (2d Cir. 1998) ("Drake's allegation that the October 28, 1993 test was not randomly administered is sufficient to make out a prima facie claim of unreasonableness."). Acting on the circuit court's suggestion, the Court appointed pro bono counsel, who diligently pursued the theory that Delta had targeted Drake because of his union activism. A jury returned a verdict in Drake's favor on that theory in 2004; however, the Court set it aside because Drake had failed to offer sufficient evidence that the test was not randomly administered. See Drake v. Delta Airlines, Inc., No. 94-CV-5944, 2005 WL 1743816 (E.D.N.Y. July 21, 2005), aff'd,216 F. App'x 95 (2d Cir. 2007).

B. Drake v. LabCorp et al.

The present lawsuit was filed in 2001 against (1) LabCorp and its employee, Kevin Wilson ("Wilson"); (2) Northwest and its employee, Kuntz; (3) ElSohly Laboratories, Inc. ("ElSohly"); and (4) Delta's Medical Review Officer ("MRO"), Dr. William H. Whaley ("Whaley"), and his professional association, West Paces Ferry Medical Clinic ("West Paces"). The complaint asserted federal claims under the Fourth and Fourteenth Amendments, as well as state-law claims for negligence, tortious interference, misrepresentation, negligent infliction of emotional distress, conspiracy and spoliation of evidence (the last of which was later withdrawn). The defendants moved to dismiss on numerous grounds, including lack of personal jurisdiction under Rule 12(b)(2), and failure to state a claim and the statute of limitations under Rule 12(b)(6); they further argued that Drake's state-law claims were preempted by the Federal Omnibus Transportation Employee Testing Act ("OTETA"), Pub. L. 102-143, 105 Stat. 917 (Oct. 28, 1991), and its implementing regulations.

On November 18, 2003, the Court dismissed Drake's claims under the Fourth and Fourteenth Amendments for failure to state a claim. See Drake v. Laboratory Corp., 290 F. Supp. 2d 352 (E.D.N.Y. 2003). Notwithstanding the dismissal of the federal claims, however, the Court elected to exercise jurisdiction over Drake's state-law claims and held that they were not, as the defendants had argued, preempted by federal law. See id. at 376; see also Drake v. Laboratory Corp., 323 F. Supp. 2d 449 (E.D.N.Y. 2004) (finding diversity jurisdiction and reaffirming decision to exercise supplemental jurisdiction even if diversity jurisdiction did not exist). On interlocutory review, the Second Circuit held that the state-law claims were preempted insofar as Drake claimed "that conduct addressed by the federal regulations is 'wrongful' under state law although it does not violate the federal regulations," Drake v. Laboratory Corp., 458 F.3d 48, 65 (2d Cir. 2006), but not insofar as he claimed "that he [was] entitled to relief under state law for the [defendants'] alleged violations of federal regulations." Id. at 63.

On remand, the Court addressed the defendants' other proffered grounds for dismissal. In a memorandum and order dated March 13, 2007 ("the March 13th M&O"), the Court dismissed all remaining claims, except the negligence claim, for failure to state a claim, see Drake v. Laboratory Corp., No. 02-CV-1924, 2007 WL 776818, at *2-*6 (E.D.N.Y. Mar. 13, 2007), and also held that it lacked personal jurisdiction over Wilson. See id. at *11. In addition, the Court addressed the statute of limitations issue, holding that the allegations of the complaint set forth a valid basis for tolling the statute:

If the Court were to consider the filing date only, it would dismiss Drake's negligence claim since it was asserted eight years after the date of injury (i.e., termination of employment). But Drake alleges that defendants ignored his requests for information and intentionally concealed their wrongdoing until February 2000, when the FAA directed them to produce documents related to the drug tests. Drake's allegations of defendants'purposeful concealment and his own due diligence during the period he wishes to toll are sufficient to state a claim for equitable estoppel; accordingly, the Court denies defendants' motion to dismiss on statute-of-limitations grounds and leaves the issue to be decided at trial.

Id. at *7.

Finally, on September 11, 2008, the Court dismissed all claims against Elsohly, Whaley and West Paces for lack of personal jurisdiction. See Drake v. Laboratory Corp., No. 02-CV-1924, 2008 WL 4239844 (E.D.N.Y. Sept. 11, 2008). Thus, the only remaining claim was Drake's claim that the actions of LabCorp, Northwest and Kuntz ...

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