Doe v. SmithKline Beecham Corp., 3-92-056-CV

• Citation: 855 S.W.2d 248
• Decision Date: 02 June 1993
• Docket Number: No. 3-92-056-CV,3-92-056-CV
• Parties: Jane DOE, Appellant, v. SMITHKLINE BEECHAM CORPORATION, SmithKline Beecham Clinical Laboratories, Inc., and The Quaker Oats Company, Appellees.
• Court: Court of Appeals of Texas

Page 248

855 S.W.2d 248

Jane DOE, Appellant, v. SMITHKLINE BEECHAM CORPORATION, SmithKline Beecham Clinical

Laboratories, Inc., and The Quaker Oats Company, Appellees.

No. 3-92-056-CV.

Court of Appeals of Texas,

Austin.

June 2, 1993.

Rehearing Overruled July 7, 1993.

Philip Durst, Wiseman, Durst & Tuddenham, Austin, for appellant.

Elizabeth M. Fraley, Scott, Douglass & Luton, L.L.P., Dallas, for SmithKline Beecham Corp. and SmithKline Beecham Clinical Laboratories, Inc.

Amanda Foote, Clark, Thomas, Winters & Newton, Austin, for The Quaker Oats Co., appellees.

Before CARROLL, C.J., and JONES and KIDD, JJ.

CARROLL, Chief Justice.

This case involves liability of an employer and a testing lab in connection with a pre-employment drug-screening test. Appellant, Jane Doe, the prospective employee, appeals from an adverse summary judgment. We will affirm the summary judgment in part and reverse and remand in part.

BACKGROUND

The Quaker Oats Company ("Quaker") offered Doe, a Master of Business Administration student, a job as a marketing assistant in its Chicago office at a starting salary of $49,000 plus a bonus of $4,000. The offer did not state a definite term of employment. Quaker's employment offer was conditioned on Doe (1) satisfactorily completing a drug-screening examination as required by Quaker policy and (2) providing documentation meeting the requirements of the Immigration Reform & Control Act of 1986. ¹ Doe had previously signed a "Pre-Employment Consent to Drug Screening" form required by Quaker. Quaker furnished Doe with a drug "testing package" that directed her to the Austin Occupational Health Center ("AOHC") ² where she completed the enclosed forms, including a questionnaire on recent medication use, and provided a urine sample. The only medication Doe listed on the pretesting questionnaire was her prescribed birth-control pills. ³ AOHC forwarded Doe's sample to SmithKline Beecham Clinical Laboratories, Inc. ("SmithKline") ⁴, the drug testing laboratory with which Quaker had contracted for its pre-employment screening.

Doe's sample tested positive for the presence of opiates. ⁵ SmithKline so informed Quaker, which, through its representatives, notified Doe by telephone that her employment offer had been rescinded because "she had tested positive for narcotics." Doe denied any illegal drug use and requested an opportunity to submit a second test sample. She was informed that, according to Quaker policy, the offer had been automatically rescinded and that her only recourse was to reapply for the position in six months.

During one of several telephone conversations between Doe and Quaker representatives, as a possible explanation for the positive test result, Doe stated that she had taken one of her roommate's prescription painkillers. She later retracted this statement and accounted for the fabrication regarding the painkillers as made "under extreme duress" and when she was "completely, essentially out of [her] mind." When Doe reapplied with Quaker, she was not hired for the stated reason of her misrepresentation of taking someone else's prescription medication.

Doe asserts that her positive test for opiates was the result of her consumption of several poppy seed muffins in the days before she provided her urine sample. It is undisputed that for several years before Doe's test, scientific literature on drug testing reported that ordinary poppy seed consumption could produce positive test results for opiates. Neither the pretesting forms nor any representative of Quaker, AOHC, or SmithKline inquired about Doe's consumption of poppy seed products or Doe initially brought suit against SmithKline and AOHC for negligence in the manner in which the drug test was conducted. After Quaker declined her reapplication, Doe added Quaker as a defendant. Doe alleged negligence on the part of SmithKline and Quaker in their: (1) failure to warn of the poppy seed danger, to inform her to refrain from poppy seed consumption before the test, or to inquire about consumption of poppy seeds on the pretesting questionnaire; (2) failure to review properly her test results or conduct additional tests to determine whether they indicated poppy seed consumption rather than illegal drug use; and (3) failure to retain and return her urine sample properly. Doe also urged that Quaker breached the employment contract by failing to provide her a reasonable opportunity to pass the drug test and that SmithKline tortiously interfered with that contract. Finally, Doe alleged slander and libel, claiming SmithKline and Quaker had compelled her to disclose her failure of the drug test to other prospective employers.

warned her to abstain from them before the test.

Quaker brought a counterclaim seeking attorney's fees for Doe's alleged breach of the waiver and release provisions of the "Pre-Employment Consent to Drug Screening." Each defendant moved for summary judgment. The trial court granted summary judgment and ordered that Doe take nothing by her claims against Quaker and SmithKline. The trial court also granted summary judgment for Doe on Quaker's counterclaim. Doe appeals by seven points of error from the take-nothing judgment. Quaker does not appeal the summary judgment on its counterclaim.

DISCUSSION AND HOLDING

The standards for reviewing a summary judgment are well established:

(1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

(3) Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

We will construe all summary-judgment evidence and inferences as favorable to Doe. Doe did not use any illegal drugs; the only possible explanation for her positive test is her consumption of poppy seed bakery goods. Had Doe known about the danger of poppy seeds causing a positive test, she would have avoided them or noted her consumption on the pretesting questionnaire, thereby passing the test, and becoming a Quaker employee. Quaker and SmithKline knew or had reason to know of the dangers of poppy seed consumption relative to drug testing. Neither Quaker nor SmithKline warned Doe of the danger or took any precautions to prevent a poppy seed mistake. Quaker's decision not to hire her on reapplication was based in part on her prior positive drug test. Doe did not take any of her roommate's prescription drugs, and made the misrepresentation about taking her roommate's painkillers in a moment of duress and emotional turmoil.

The question on appeal is not whether the summary-judgment proof raises a fact issue, but whether the summary-judgment proof establishes as a matter of law that no genuine issues of material fact exist as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). When the order does not give a specific reason for granting the judgment, the nonmovant, on appeal, must show why each ground asserted in the motion is insufficient to support the order. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Doe brought several claims under different legal theories against each defendant.

Doe urged four causes of action against Quaker--negligence, breach of contract, breach of a claimed duty of good faith and fair dealing, and defamation. She also brought four causes of action against SmithKline--negligence, tortious interference with contract, breach of a claimed duty of good faith and fair dealing, and defamation. To merit a summary judgment on each of her claims, Quaker and SmithKline had the burden of conclusively negating at least one essential element of each claim or establishing an affirmative defense as a matter of law. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

Release

Both Quaker and SmithKline argued on summary judgment that they were protected from liability by the release, waiver, and indemnity provisions of the "Pre-Employment Consent to Drug Screening" form Doe signed. Doe attacks this ground for summary judgment in her seventh point of error. Doe argues that the waiver is void as a matter of public policy, is invalid on its terms and under the circumstances, and is ineffective by its terms as a release of claims against SmithKline.

The waiver contained the following exculpatory language: "I consent to the release of the drug screen results to authorized Quaker representatives for appropriate review. I release and agree to hold harmless Quaker, its employees and its agents, from any liability to me based on the results of the drug screening." The dates appearing on the waiver indicate that Doe signed it during the recruiting and interview process and before Quaker made its offer to Doe.

As discussed more fully below, we conclude that Quaker is not liable as a matter of law on each of Doe's alleged causes of action. Accordingly, as to Quaker, we do not reach the question of whether the release is enforceable.

As to SmithKline, we have concluded below that SmithKline may be liable only under Doe's negligence and tortious interference with contract causes of action. We conclude that the waiver is unenforceable to shield SmithKline for several reasons. First, the release may well be void as a matter of public policy. Parties may contract to release future liability unless the agreement is unconstitutional, violates statutory law, or is against public policy. Allright, Inc. v. Elledge, 515 S.W.2d 266, 267 (Tex.1974). To...