903 S.W.2d 347 (Tex. 1995), D-4131, SmithKline Beecham Corp. v. Doe

• Citation: 903 S.W.2d 347
• Party Name: SMITHKLINE BEECHAM CORPORATION and Smithkline Beecham Clinical Laboratories, Inc., Petitioners, v. Jane DOE, Respondent.
• Case Date: July 21, 1995
• Court: Texas Supreme Court

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903 S.W.2d 347 (Tex. 1995)

SMITHKLINE BEECHAM CORPORATION and Smithkline Beecham

Clinical Laboratories, Inc., Petitioners,

v.

Jane DOE, Respondent.

No. D-4131.

Supreme Court of Texas.

July 21, 1995

Argued March 8, 1994.

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Elizabeth M. Fraley, R. Scott Fraley, Dallas, for petitioners.

Philip Durst, Austin, for respondent.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, CORNYN, ENOCH and OWEN, Justices, joined.

Increasingly within the past decade, the policy of employers in this country has been to screen employees and prospective employees for drug usage. Employers frequently retain independent laboratories to perform drug screening tests. This case requires us to begin to define these laboratories' legal responsibility to persons tested.

Plaintiff's pre-employment drug test revealed the presence of opiates in her urine, and as a result her job offer was withdrawn. Her complaint is not that the test was performed improperly or that the result was incorrect, but that the result was due to her having eaten poppy seeds and not to any use of drugs. Plaintiff contends that the testing laboratory should have informed her and her prospective employer that eating poppy seeds could cause a positive test result. Thus, the principal issue we must decide is whether an independent drug testing laboratory hired by an employer to test prospective employees for drugs owes a person tested a duty to tell that person or the employer that ingestion of certain substances will cause a positive test result. We hold that this duty does not exist.

Plaintiff also alleges that the drug testing laboratory breached other duties to her and intentionally interfered with her offer of prospective employment. We conclude that the laboratory has breached no duty to plaintiff, but that there is a factual dispute regarding her tortious interference claim.

I

Plaintiff, who refers to herself in this litigation by the pseudonym Jane Doe, suffered an adverse summary judgment in the trial court. We therefore review the record in the light most favorable to her, and in that light, the facts are as follows.

Doe, a 24-year-old graduate student studying for a master's degree in business administration, was offered employment by The Quaker Oats Company as a marketing assistant. In accordance with company policy, one of the conditions on Quaker's written offer was Doe's satisfactory completion of a drug screening examination. Quaker's policy stated: "Any individual whose test results are positive and who did not disclose current medications will not be eligible for hire."

Quaker contracted with SmithKline Beecham Clinical Laboratories, Inc. to perform its drug testing. SBCL assured Quaker that its test results were accurate, and Quaker relied upon these assurances. SBCL gave Quaker copies of its promotional materials, but Quaker did not keep them, and so the record does not reflect which of these materials Quaker either did or did not see. At one time SBCL's advertising brochure contained the following statement:

Although most laboratories can offer some form of drug testing at what seems like a good price, the hallmark of a responsible, quality-conscious laboratory is its ability to

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offer a complete testing system, a system that focuses not only on the assays themselves, but on each transaction in the drug-testing process. [SBCL] has designed a comprehensive drug-testing system that extends from specimen pickup by our own specially trained couriers through proper reporting of results and long-term retention of test records. What this simply means is that a positive result from [SBCL] can be accepted with virtual certainty as evidence of drug use.

Contrary to an assertion in the court of appeals' opinion, 855 S.W.2d 248, 256, there is no evidence that Quaker ever saw this statement, but as we have said, neither is there evidence that Quaker did not see the statement. SBCL's advertising materials no longer contain the quoted passage but do state: "A confirmed positive result offers virtually 100 percent assurance that the specified drug is actually present in the urine specimen." SBCL later revised its promotional materials to state:

In addition, certain types of poppy seeds, if consumed in sufficient quantity, can produce a positive result for opiates. Since the drug contained in these seeds (in minute quantity) is related to the opiates used by drug offenders, there is no way to completely eliminate this potential problem.

Quaker directed Doe to a health center where a urine specimen was taken. There Doe completed a medical history form on which she was to list all medications recently used. The only item Doe listed on the form was birth control pills for which she had a prescription. Doe was not asked what foods she had eaten. The health center sent Doe's urine sample to SBCL for testing. The test revealed the presence of opiates in Doe's urine. SBCL reported this result to Quaker.

When Quaker advised Doe that her drug test was positive, Doe denied using illicit drugs and attempted to attribute the test result to having taken Vicodin, a pain medicine prescribed for her roommate. Since Doe had not listed Vicodin on her medical history form, and since by her own admission she had taken a prescription drug for which she did not have a prescription, Quaker did not accept Doe's explanation. Doe later confessed to Quaker that she had not taken Vicodin and that she had lied because she was, in her words, "under extreme duress" and "completely, essentially out of my mind."

Meanwhile, Doe learned through her own research that eating poppy seeds can cause a drug test result positive for opiates. Doe informed Quaker of this and said that in the days before the test she had eaten several poppy seed muffins which must have caused her positive test result. Quaker nevertheless withdrew Doe's offer of employment in accordance with its policy and advised her that her only recourse was to reapply for a position after six months. When Doe reapplied, Quaker refused to hire her on the grounds that she had not told the truth about taking Vicodin.

Doe asked Quaker to have SBCL return her urine specimen, and Quaker complied, but SBCL was unable to locate it, although according to SBCL's contract with Quaker it should have been preserved. Nevertheless, Doe now concedes that the test was properly performed and the result was accurate--that is, opiates were found in her urine at the levels shown in the report.

We assume for present purposes that Doe's positive test result was due not to any use of drugs but to her ingestion of poppy seeds, which she would not have eaten had she known of their effect on the test. There is no dispute that a person's ingestion of poppy seeds in sufficient quantities will result in the presence of morphine and codeine in his or her urine for a few hours, as established by the several authorities referenced in the margin. ¹ SBCL was aware of this and

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knew that its test could not distinguish between poppy seed ingestion and drug use. SBCL did not convey this information to Quaker or Doe. SBCL and Doe never communicated with each other before her test results were reported to Quaker. Quaker would have considered the information important and might have investigated Doe's result more fully if it had known, but its ultimate decision to withdraw Doe's offer consistent with its policy might have been the same. Of the more than 4,000 persons Quaker has had screened for drugs, none besides Doe has ever claimed a positive result due to ingestion of poppy seeds.

Doe sued SBCL and its parent, SmithKline Beecham Corp. (together, SmithKline), for negligence, breach of the duty of good faith and fair dealing, defamation, and tortious interference with a prospective contract. Doe also sued the health clinic, which was later dismissed from the case, and Quaker. The trial court granted summary judgment for SmithKline and Quaker. The court of appeals affirmed the summary judgment for Quaker but reversed the summary judgment for SmithKline on Doe's negligence and tortious interference claims. 855 S.W.2d at 248. SmithKline applied to this Court for writ of error, and Doe filed an application conditioned on SmithKline's application being granted. We granted both applications. 37 Tex.Sup.Ct.J. 427 (Feb. 2, 1994).

SmithKline complains of the reversal of its summary judgment on Doe's claims of negligence and tortious interference. Doe complains of the affirmance of the summary judgments for Quaker and SmithKline. While the case has been pending in this Court, Doe and Quaker have settled. Doe has also withdrawn her point of error complaining of summary judgment for SmithKline on her defamation claim. As a result, the only issues which remain are whether SmithKline was entitled to summary judgment on Doe's claims for negligence, tortious interference, and breach of the duty of good faith and fair dealing. We address each in turn.

II

Doe's pleadings contain the following allegations of negligence against SmithKline:

Defendants ... were negligent, grossly negligent, and/or deliberately indifferent to the rights of plaintiff, in, at least, the following ways:

1. Failing to inform plaintiff before she undertook the urinalysis drug test that poppy seeds are a known cause of positive test results and could lead to her failing the drug test.

2. Failing to inform prospective employers and/or test recipients that poppy seeds are a known cause of positive test results and could lead to a positive test result for opiate use.

3. Failing to instruct plaintiff that, because poppy seeds can alter a drug test result, to abstain from eating poppy seeds or disclose this fact to any defendant.

4. Failing to inquire about whether the plaintiff ingested any poppy seed foods within a reasonable period before her urinalysis test was...