Eric LANDON, Individually and on Behalf of all others similarly situated, Respondent,
KROLL LABORATORY SPECIALISTS, INC., Appellant.
[977 N.Y.S.2d 677]
Anderson & Ochs, LLP, New York City (Mitchel H. Ochs, Jason A. Stern and Michael J. Hasday of counsel), for appellant.
Eric Landon, pro se. Robert N. Isseks, Middletown, and Bloom & Bloom, PC, New Windsor (Kevin D. Bloom of counsel), on the brief, for respondent.
LIPPMAN, Chief Judge.
[999 N.E.2d 1122] The issue presented by this appeal is whether plaintiff Eric Landon has stated a cause of action against defendant drug testing laboratory (Kroll) for the alleged negligent testing of his biological sample. Under the circumstances of this case, we find the complaint sufficient to withstand a motion to dismiss.
In January 2002, Landon was convicted of second degree forgery and was sentenced to a five-year term of probation. One of the conditions of Landon's probation was a requirement that he submit to random drug testing. Pursuant to a contract with Orange County and/or the Orange County Probation Department (the County), defendant Kroll, a Louisiana corporation, was engaged to test oral fluid samples provided by probationers for the presence of illicit or controlled substances.
On December 17, 2007, Landon's probation officer directed him to provide an oral fluid sample for testing. The sample was taken using an Intercept DOA Oral Specimen Collection Device, manufactured by Orasure Technologies, Inc. A simultaneous urine sample was not taken. Later the same day, Landon obtained an independent [977 N.Y.S.2d 678] [999 N.E.2d 1123] blood test, for the purpose of protecting himself from a potential false positive result. The blood test came back negative for illicit and controlled substances.
Kroll, however, detected the presence of cannabinoids in the oral sample exceeding a screen test cutoff level of 1 ng/ml. The laboratory generated a written report dated December 20, 2007 informing the probation department that Landon's sample had screen tested positive for THC. The probation department then filed a violation of probation (VOP) proceeding, seeking to have Landon's probationary sentence revoked and to have him incarcerated. The VOP petition alleged that Landon had violated two conditions of his probation in that he had tested positive for marijuana and he had falsely reported to his probation officer that he had not used drugs or alcohol.
Landon was arraigned on the VOP petition on January 2, 2008— one day before the term of his probation was set to expire. At that appearance, he provided the court and the probation department with the negative result from his independent blood test. He also submitted to a urine test at that time, which was likewise negative for THC. Nevertheless, the VOP proceedings went forward, requiring a number of court appearances during which the terms of his probation were continued. On March 20, 2008, the petition was withdrawn and the proceedings were terminated in Landon's favor.
Plaintiff commenced this action alleging that Kroll had issued the report reflecting the positive test result both negligently and as part of a policy of deliberate indifference to his rights. The basis for his claim was that the screen test cutoff level employed by Kroll was substantially lower than that recommended by Orasure or by federal standards and that Kroll failed
to disclose those differences in its report. As alleged in the complaint, the screen test cutoff level recommended by Orasure is 3.0 ng/ml and the level recommended by the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) is 4.0 ng/ml— both of which are substantially higher than the 1 ng/ml used by Kroll. The complaint further stated that, despite applicable New York State Department of Health Laboratory Standards requiring samples to be subject to confirmatory testing through the use of gas chromatography-mass spectrometry, Landon's sample was not subject to any type of confirmation test before defendant reported a positive result. In addition, the complaint alleged that proposed revisions to SAMHSA guidelines contemplated requiring the taking of a urine sample, contemporaneous with the oral fluid sample, in order to protect federal workers from inaccurate results. The complaint maintained that Kroll knew of, and failed to disclose, the potential for false positive THC readings when oral fluid samples were tested without a simultaneous urine sample. Moreover, plaintiff alleged that the VOP petition was the result of systemic negligence in Kroll's substance abuse testing practices. He asserted that he was required to serve an extended term of probation, thereby suffering a loss of freedom, as well as emotional and psychological harm, and monetary loss in the form of attorneys' fees expended in defense of the VOP petition.
Supreme Court granted Kroll's motion to dismiss for failure to state a cause of action. The Appellate Division reversed, finding that the complaint stated a cause of action against defendant drug testing laboratory for the negligent testing of plaintiffs biological specimen, notwithstanding the absence of a contractual relationship between the parties ( [999 N.E.2d 1124] [977 N.Y.S.2d 679]91 A.D.3d 79, 934 N.Y.S.2d 183 [2d Dept.2011] ). The Court recognized the harm that could flow from a false positive test result and reasoned that the laboratory's duty ran only to a circumscribed category of individuals. The Appellate Division certified the following question for our review: " [w]as the opinion and order of this Court dated November 22, 2011, properly made?" ( 2012 N.Y. slip op. 64628[U], 2012 WL 516104 .) we answer the certified question in the affirmative.
It is well settled that " [i]n assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference"
( J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076  [internal quotation marks and citations omitted] ). Whether the plaintiff will ultimately be successful in establishing those allegations " ‘ is not part of the calculus' " ( see J.P. Morgan, 21 N.Y.3d at 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26  ).
As a threshold matter, we must determine whether Kroll owed plaintiff a duty of care. We have observed that, " [w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm" ( Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184  ). Here, while there is no contractual relationship between Kroll and Landon, the laboratory does have a contractual relationship with the County for the testing of biological samples.
Although the existence of a contractual relationship by itself generally is not a source of tort liability to third parties, we have recognized that there are certain circumstances where a duty of care is assumed to certain individuals outside the contract ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138-139, 746 N.Y.S.2d 120, 773 N.E.2d 485  ). As relevant here, such a duty may arise " where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm" ( Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citation omitted] ). This principle recognizes that the duty to avoid harm to others is distinct from the contractual duty of performance. Accepting the allegations of the complaint as true, Kroll did not exercise reasonable care in the testing of plaintiff's biological sample when it failed to adhere to professionally accepted testing standards and, consequently, released a report finding that plaintiff had tested positive for THC. The alleged harm to plaintiff was not ...