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Russo v. International Drug Detection, LLC

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

ANTHONY RUSSO
v.
INTERNATIONAL DRUG DETECTION, L.L.C. AND PSYCHEMEDICS CORPORATION

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 757-153, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, ANTHONY RUSSO T. Carey Wicker, III J. Alex Watkins Donald L. Hyatt, II

          COUNSEL FOR DEFENDANT/RESPONDENT, INTERNATIONAL DRUG DETECTION, L.L.C. Christopher J. Kane Gerard J. Gaudet

          COUNSEL FOR DEFENDANT/RELATOR, PSYCHEMEDICS CORPORATION Charles H. Hollis Allison A. Fish

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore

          ROBERT A. CHAISSON JUDGE

         In this case arising out of workplace drug testing, Psychemedics Corporation seeks this Court's supervisory review of a January 10, 2018 trial court judgment denying its motion for summary judgment. For the following reasons, we grant Psychemedics' writ application, reverse the trial court ruling, grant summary judgment, and dismiss this matter as to Psychemedics with prejudice. FACTS AND PROCEDURAL HISTORY

         Mr. Anthony Russo, a communications technician who services offshore oil platforms and installations, filed a petition for damages on January 20, 2016 against International Drug Detection, LLC ("IDD") and Psychemedics, wherein he alleged that on or about July 7, 2015, he and approximately 200 other individuals, prior to transportation to an offshore oil platform, underwent sample hair collection at a temporary collection station set up at a heliport for the purposes of drug testing. The temporary collection station was set up by IDD personnel who proceeded to collect samples for breathalyzer alcohol testing, oral fluid drug testing, and hair drug testing. These samples were then sent to laboratories operated by Psychemedics for testing. On July 18, 2015, Mr. Russo was informed that the hair sample collected by IDD and tested by Psychemedics tested positive for marijuana usage. Mr. Russo was immediately removed from the oil platform and banned for life from all work at the facilities of the owner of the oil platform. In his petition, Mr. Russo alleges that IDD and Psychemedics breached a duty of care to him under La. C.C. arts. 2315 and 2316 in negligently reporting that he had a positive drug test result.

         Specifically, with regard to Psychemedics, Mr. Russo alleged that the company was negligent for failing to ensure that it only tested and reported on samples taken from individuals using accepted methods to prevent cross-contamination, failing to prevent cross-contamination in its own testing facilities, and/or reporting test results with known or substantially certain catastrophic results on Mr. Russo's career and income without seeking a second sample and performing confirmatory testing. Mr. Russo also alleged that Psychemedics was negligent in failing to inform all recipients of the drug test results on his July 7, 2015 hair sample that subsequent drug test results on hair samples collected from him on July 20, 2015 came back negative for marijuana usage. Mr. Russo seeks recovery of damages for injuries he suffered as a result, including emotional distress, past, present, and future lost income, limitation of present and future employment opportunities, and injury to his reputation.

         IDD and Psychemedics both filed motions for summary judgment seeking to have all of Mr. Russo's claims against them dismissed with prejudice. Psychemedics argued that Mr. Russo could not provide evidence in support of his claims that it was negligent in the handling or testing of the hair sample or negligent in the reporting of the test results. In opposition to this motion for summary judgment, Mr. Russo argued that Psychemedics failed to meet the standard of care, which is SAMHSA certification.[1] The trial court denied both IDD's and Psychemedics' motions for summary judgment, finding that there existed genuine issues of material fact concerning the collection procedures and methodology utilized in the matter, as well as whether or not any duty owed to Mr. Russo was breached in testing the hair sample and timely reporting the results. Psychemedics filed a writ application for supervisory review by this Court. Pursuant to the recently enacted requirement of La. C.C.P. art. 966(H), we assigned the case for briefing by the parties and heard oral arguments.[2]

         DISCUSSION

          A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.; Dillenkofer v. Marrero Day Care Ctr., Inc., 16-713 (La.App. 5 Cir. 5/24/17), 221 So.3d 279, 282.

         To state a claim for negligence under Louisiana law, Mr. Russo bears the burden of proving the following elements by a preponderance of the evidence: (1) Psychemedics had a duty to conform its conduct to a specific standard; (2) Psychemedics breached that duty; (3) Pyschemedics' substandard conduct was the cause-in-fact of Mr. Russo's injuries; (4) Psychemedics' substandard conduct was a legal cause of Mr. Russo's injuries; and (5) actual damages to Mr. Russo. See Stead v. Swanner, 12-727 (La.App. 5 Cir. 5/16/13), 119 So.3d 110, 117.

         In support of its motion for summary judgment, Psychemedics offered an affidavit of Dr. Thomas Cairns, a document custodian and senior scientific advisor for Psychemedics at its drug testing laboratory, who testified as to Psychemedics' FDA-approved testing procedures and methodology and that the chain of custody for Mr. Russo's sample was not compromised. Dr. Cairns also testified that Psychemedics' laboratory, which has the largest and oldest hair-testing program of any laboratory in North America, is licensed or certified to perform forensic toxicology drug testing by the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Clinical Laboratory Improvement Amendments, and the College of American Pathologists, in addition to various other certifications and licensures. Psychemedics also offered the affidavit and expert report of Dr. Carl Selavka, a forensic scientist who testified that Psychemedics' hair testing conducted on samples collected from Mr. Russo provided evidence of multiple uses of marijuana during an extended period from late April 2015 to the end of June 2015, which was not scientifically refuted by oral fluid or urine ...


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