Mendez v. Hous. Harris Area Safety Council, Inc.

• Decision Date: 29 April 2021
• Docket Number: NO. 01-19-00288-CV,01-19-00288-CV
• Citation: 634 S.W.3d 154
• Parties: Guillermo M. MENDEZ, Appellant v. HOUSTON HARRIS AREA SAFETY COUNCIL, INC. and Psychemedics, Inc., Appellees
• Court: Texas Court of Appeals

634 S.W.3d 154

Guillermo M. MENDEZ, Appellant

v.HOUSTON HARRIS AREA SAFETY COUNCIL, INC. and Psychemedics, Inc., Appellees

NO. 01-19-00288-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued April 29, 2021

Robert E. Goodman, Jr., Kilgore & Kilgore, PLLC, 3109 Carlisle Street, Dallas, Texas 75204, for Appellant.

Charles H. Hollis, The Kullman Firm, 1100 Poydras St., Ste. 100, New Orleans, LA 70163, Chris M. Knudsen, Michael T. Lewis, Serpe, Jones, Andrews, Callender & Bell, PLLC, America Tower, 2929 Allen Parkway, St. 1600, Houston, Texas 77019, for Appellees.

Panel consists of Justices Kelly, Goodman, and Countiss.

Peter Kelly, Justice

Guillermo M. Mendez, a pipefitter, lost his job after his random drug test yielded a positive result for cocaine. He sued the trade association that collected his biological samples and the drug testing laboratory that performed the test. The trade association, Houston Area Safety Council, Inc. ("HASC"), and the drug testing laboratory, Psychemedics, Inc. ("Psychemedics"), moved for summary judgment against Mendez. The trial court found that neither HASC nor Psychemedics owed a duty of care to Mendez, granted their summary judgment motions, and issued a take nothing judgment in favor of Psychemedics and HASC. Mendez appeals and contends that the trial court erred by finding that neither entity owed him a duty of care in their collection and analysis of his hair sample. We agree with Mendez and reverse the judgment of the trial court.

Background

Mendez was formerly employed by Turnaround Welding Services, Inc. ("Turnaround Welding"). Turnaround Welding's customer, Valero, required that all workers assigned to its jobsite submit to a drug and alcohol screening. Mendez was assigned to Valero's jobsite.

HASC collects biological samples for testing for several employers. Pursuant to Turnaround Welding's instructions, Mendez reported to HASC on September 15, 2016, to provide samples for drug and alcohol testing. While there, Mendez provided urine and hair samples and performed an alcohol breathalyzer test. A HASC employee collected Mendez's hair sample and filled out Psychemedics's Forensic Drug Testing Custody and Control Form. The form has a unique bar code and serial number used to ensure a test subject's sample is not confused with another person's sample. Mendez's hair sample was taken from his chest because the hair on his head was too short for sampling. Mendez observed the HASC employee use a razor to cut the chest hair and place it in a piece of aluminum foil. The employee then placed the foil in an envelope called a "Sample Acquisition Card." The card was sealed with a tamper-evident seal. The HASC employee placed a barcode sticker from the custody and control form on the card, Mendez initialed the card confirming it was his hair inside, and the employee placed the sealed card in a plastic bag. The plastic back was then sealed. which itself was then sealed. Mendez also signed the control form at the end of the collection process, certifying that he had provided the sample in the card, the sample was cut close to his skin, and he witnessed the HASC employee seal the sample in the card.

The hair sample was sent to Psychemedics's laboratory for testing. Psychemedics is a drug testing laboratory that is licensed and certified to perform forensic toxicology testing by several entities, including the U.S. Department of Health & Human Services, Centers for Medicare & Medicaid Services, Clinical Laboratory Improvement Amendments, and the College of American Pathologists. It is licensed by several states, including Texas. Psychemedics's testing services are used by a number of employers in their drug testing programs.

Psychemedics uses a two-part test for cocaine detection. First, the hair sample is analyzed for the presence of cocaine through a screening process using an enzyme immunoassay

test. If the result is negative, the test is reported as negative, and no additional testing is performed. If the result of the screening process is positive, the sample is considered "presumptive positive," and a second analysis is utilized. The sample undergoes an extensive multi-wash procedure to rule out external contaminants and is tested using Liquid Chromatography /Mass Spectrometry /Mass Spectrometry, also known as "LC/MS/MS." If the LC/MS/MS test does not detect the drug at or above the specified cutoff level of drug presence by concentration, the test is reported as negative.

Mendez's hair sample tested positive for cocaine at a level over three times the specified cutoff level for presence of cocaine in a hair sample. It also tested positive for cocaine metabolites, which are produced in the human body after ingestion of cocaine.

A few days after drug testing, Mendez reported to work at Valero. After working two days, he was instructed by a Valero employee that he needed to submit to an additional drug screen. He provided a second hair sample on site on September 23, 2016. This sample was collected by DISA Global Solutions, Inc. ("DISA") and used hair from his head rather than chest. The sample was sent to Psychemedics for testing and tested negative for cocaine.

On October 7, 2016, Mendez was terminated due to the first positive drug test and told he could return to work if he "fixed the issue." Mendez obtained a third hair follicle test at his own expense. This test was sent to a different laboratory and rendered a negative result. He was also provided an opportunity to rehabilitate through a substance abuse course and mental health services. Once he completed those programs, Mendez was permitted to return to work, but Turnaround Welding did not allow him to go back to work on Valero's site. He was not assigned to a new jobsite and received unemployment compensation benefits for a few months before he found a new employer.

Mendez sued HASC and Psychemedics alleging that they were negligent in administering and analyzing the first hair follicle drug test and that as a result of their negligence, he lost his job. Psychemedics and HASC filed traditional and no-evidence motions for summary judgment. They each argued that they did not owe Mendez a duty of care under Texas law. They further argued that even if they did owe a duty of care, Mendez had no evidence that they breached any standard of care.

The trial court heard oral argument on the traditional summary judgment motion concerning whether Psychemedics and HASC owed Mendez a duty of care. The court held that HASC and Psychemedics did not owe Mendez a duty of care, granted the motions for summary judgment, and dismissed Mendez's claims with prejudice. Because the trial court decided no duty was owed, the trial court did not reach the issues of breach, causation, or damages. Mendez appealed.

Summary Judgment

A. Summary Judgment Standard of Review

On appeal, Mendez challenges the propriety of the trial court's take-nothing summary judgment on his negligence claims. We review summary judgments de novo. City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 258 (Tex. 2018).

As to the traditional grounds for summary judgment, HASC and Psychemedics bore the burden of showing that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c) ; City of Richardson , 539 S.W.3d at 258–59. To meet this burden, Psychemedics and HASC were required to conclusively negate at least one essential element of each of Mendez's negligence claims or conclusively prove all elements of an affirmative defense. See KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015). "An issue is conclusively established ‘if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.’ " Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen , 525 S.W.3d 671, 681 (Tex. 2017) (quoting Childs v. Haussecker , 974 S.W.2d 31, 44 (Tex. 1998) ). When reviewing the grounds for summary judgment, we take as true all evidence favorable to Mendez and indulge every reasonable inference and resolve any doubts in Mendez's favor. Sommers v. Sandcastle Homes , 521 S.W.3d 749, 754 (Tex. 2017).

B. Negligence and Legal Duty

A negligence cause of action has three elements: (1) a legal duty, (2) breach of that duty, and (3) damages proximately resulting from the breach. See Praesel v. Johnson , 967 S.W.2d 391, 394 (Tex. 1998) ; Ramirez v. Colonial Freight Warehouse Co. Inc. , 434 S.W.3d 244, 249 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). While HASC and Psychemedics moved for summary judgment on both traditional and no-evidence grounds, the trial court granted their traditional motions for summary judgment on the issue of duty alone, without reaching breach, causation, or damages. The trial court specified that the "[c]ourt grants the traditional motions for summary judgment on the legal question of duty, finding that based upon current Texas common law that this court is required to follow the Defendants owed no duty of care to Plaintiff." Accordingly, we review the summary judgment order on the question of duty, without reaching the other elements of a negligence claim.¹

Mendez alleges that HASC and Psychemedics owed him a duty of care (1) not to administer or analyze a hair follicle drug test they knew to be scientifically questionable; (2) to take reasonable precautions in the course of administering and analyzing a hair follicle drug test; (3) not to rely upon a hair sample drug test, as opposed to urinalysis, as the basis for a report of a positive drug test to his employer; (4) not to report the positive hair sample to his employer given the "questionable status" of the test.

C. Texas Law Regarding Existence of a Duty

The existence of a duty is a threshold issue in a negligence case. Helbing v. Hunt , 402 S.W.3d 699, 702 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). "A duty is a legally enforceable obligation to conform to a particular standard of conduct." Id. (...