Pasternack v. Lab. Corp. of America, 10 Civ. 4426 (PGG)

• Decision Date: 06 September 2012
• Docket Number: 10 Civ. 4426 (PGG)
• Parties: DR. FRED L. PASTERNACK, Plaintiff, v. LABORATORY CORPORATION OF AMERICA a/k/a LABCORP and CHOICEPOINT, INC., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

DR. FRED L. PASTERNACK, Plaintiff,

v.LABORATORY CORPORATION OF

AMERICA a/k/a LABCORP and CHOICEPOINT, INC., Defendants.

10 Civ. 4426 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 5, 2012

Dated: September 6, 2012

MEMORANDUMOPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Fred Pasternack commenced this action against Laboratory Corporation of America ("LabCorp") and ChoicePoint, Inc.¹ on June 3, 2010. The Amended Complaint includes claims for negligence, gross negligence, negligent misrepresentation, and fraud, as well as claims under Section 1983. (Dkt. No. 10) LabCorp answered the Amended Complaint, but ChoicePoint moved to dismiss. (Dkt. No. 16) In an August 1, 2011 Memorandum Opinion and Order, this Court granted ChoicePoint's motion to dismiss in its entirety. (Dkt. No. 22; Pasternack v. Laboratory Corp. of America, No. 10 Civ. 4426(PGG), 2011 WL 3478732 (S.D.N.Y. Aug. 1, 2011)). In September 2011, Plaintiff retained new counsel. (Dkt. No. 29)

Pasternack now seeks leave to file a Second Amended Complaint ("SAC"). In the proposed SAC, Pasternack attempts - as to ChoicePoint - to address the deficiencies that led to the dismissal of his negligence and gross negligence claims in the August 1, 2011 Opinion. As to LabCorp, the SAC again pleads negligence, gross negligence, negligent misrepresentation,and fraud. The SAC omits the Amended Complaint's Section 1983 claim, however, and adds a claim for "injurious falsehood." (Am. Cmplt.; SAC)

LabCorp does not oppose Pasternack's motion to file a Second Amended Complaint; ChoicePoint opposes Plaintiff's motion. For the reasons stated below, Pasternack's motion for leave to file a Second Amended Complaint will be granted as to LabCorp but denied as to ChoicePoint.

BACKGROUND

I. FEDERAL LAW GOVERNING THE DRUG TESTING OF AVIATION EMPLOYEES

Because the regulatory scheme governing the testing of aviation employees is critical to an understanding of Pasternack's claims, the Court includes a summary of that scheme and certain relevant regulations.

The Federal Aviation Administration ("FAA") and the U.S. Department of Transportation ("DOT") have issued regulations concerning the drug testing of aviation employees. The Second Circuit outlined the regulatory scheme in Drake v. Lab. Corp. of Am. Holdings. 458 F.3d 48 (2d Cir. 2006):

In the FAA Act, Congress granted the FAA broad authority over aviation safety, including the power to adopt regulations that it "finds necessary for safety in air commerce and national security." 49 U.S.C. § 44701(a)(5). Pursuant to this power, in 1988, the FAA promulgated regulations mandating that all aviation-industry employees who perform safety-sensitive functions be subjected to random drug-testing. See Anti-Drug Program for Personnel Engaged in Specified Aviation Activities, 53 Fed.Reg. 47024 (Nov. 21, 1988) (codified as amended at 14 C.F.R. pt. 121, App. I). The regulations set forth in great detail the "standards and components" that required drug-testing programs must include. See 14 C.F.R. pt. 121, App. I. They prescribe, among other things, the classes of employees that must be tested, 14 C.F.R. pt. 121, App. I § III, the substances for which they must be tested, id. § IV, the types of testing to be conducted (e.g., pre-employment testing, random testing, and post-accident testing), id. § V, and the length of time that records of required drug testing must be retained, id. § VI.

The FAA regulations incorporate by reference DOT regulations that set out detailed protocols to be followed by drug-testing laboratories. Seeid. § LB. (requiring thataviation employers comply with "Procedures for Transportation Workplace Drug Testing Programs," 49 C.F.R. pt. 40, published by the DOT). The DOT regulations provide, among other things, that laboratories must use chain-of-custody procedures to document each time a urine specimen is handled or transferred, see 49 C.F.R. § 40.83(b), that an employer's designated MRO [Medical Review Officer] must review and certify test results before the laboratory reports them to the employer, id. § 40.97(b); id. § 40.123, and that laboratories must report test results to an MRO in writing, id. § 40.97(b). Although they set out elaborate rules for conducting drug tests, the DOT regulations do not specifically address negligence on the part of drug-testing laboratories or otherwise establish the minimum standard of care to be exercised by laboratory personnel.

Drake, 458 F.3d at 56-57.

The dispute between the parties concerns the consequences of Pasternack's initial failure to provide an adequate urine sample when randomly chosen for a drug test, and his decision to leave the collection facility before the collection process was complete. Two DOT regulations explicitly provide that where an employee leaves a collection site before the collection process is complete, that conduct constitutes a "refusal to test":

40.193 What happens when an employee does not provide a sufficient amount of urine for a drug test?

(a) This section prescribes procedures for situations in which an employee does not provide a sufficient amount of urine to permit a drug test (i.e., 45 mL of urine).

(b) As the collector, you must do the following:

(1) Discard the insufficient specimen, except where the insufficient specimen was out of temperature range or showed evidence of adulteration or tampering (see § 40.65(b) and (c) ).

(2) Urge the employee to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. It is not a refusal to test if the employee declines to drink. Document on the Remarks line of the CCF [Custody and Control Form] (Step 2), and inform the employee of, the time at which the three-hour period begins and ends.

(3) If the employee refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is complete, you must discontinue the collection, note the fact on the "Remarks" line of the CCF (Step 2), and immediately notify the DER [Designated Employer Representative]. This is a refusal to test.

49 C.F.R. § 40.193 (emphasis added).

40.191 What is a refusal to take a DOT drug test, and what are the consequences?

(a) As an employee, you have refused to take a drug test if you:

...

(2) Fail to remain at the testing site until the testing process is complete. . . .

49 C.F.R. §40.191(a)(2).

II. PASTERNACK'S DRUG TEST

Pasternack is a physician and part-time pilot. (SAC ¶¶ 1, 3) From 1978 until February 2008, Pasternack was a Senior Aviation Medical Examiner ("AME") for the FAA, (Id. ¶ 10) In this capacity, Pasternack performed medical examinations that the FAA requires pilots to undergo in order to maintain certain certifications. (Id. ¶ 10) He also piloted chartered flights for Northeastern Aviation Corporation ("Northeastern"). (Id. at 11) Pasternack received compensation both as an AME and as a Northeastern pilot. (Id. ¶¶ 10-11)

Defendant ChoicePoint, Inc. provides, among other services, drug testing administration programs to both governmental and private entities. (Id. ¶ 4) Defendant LabCorp provides "specimen collection and laboratory drug testing services to private entities." (Id. ¶ 5) ChoicePoint entered into a contract with Northeastern in which it agreed to "help administer Northeastern's drug testing program." (Id. ¶ 16) LabCorp entered into a contract with ChoicePoint in which it agreed to "perform specimen collection and testing services, which included specimen collection and testing services for Northeastern." (Id. ¶ 17)

On June 1, 2007, Northeastern notified Pasternack that he had been selected for random drug testing. (Id. ¶ 18) On June 5, 2007, Pasternack appeared for drug testing at a LabCorp collection site located at 1317 Third Avenue in Manhattan at approximately 1:10 p.m. (Id. ¶ 19) Pasternack brought with him a pre-printed chain-of-custody form ("CCF") provided tohim by Northeastern, as DOT regulations require. (Id. ¶ 19) Pasternak "attempted to provide a urine sample," but was unable to produce "a sufficient amount of urine." (Id. ¶¶ 20) The LabCorp collector, Theresa Montalvo, instructed Pasternack to go to the waiting room. (Id. ¶ 22) Pasternack told Montalvo that he needed to leave the collection site in order to attend to a patient, but that he would return the following morning to provide an adequate sample. (Id. ¶¶ 23-24) Although DOT regulations require sample collectors such as LabCorp to tell a subject that "he or she is not permitted to leave the collection site and if they do so, that it will be considered a refusal to test," Montalvo did not so instruct Pasternack. (Id. ¶ 21 (quoting DOT Guidelines § 8.3)) Pasternack then left the collection site. (Id. ¶ 24)

Shortly after 4:00 p.m. that same day, Pasternack returned to the LabCorp facility. After calling Northeastern and obtaining permission to take a second urine sample from Pasternack, Montalvo noted on the CCF that "Dr. Pasternack had left and returned and also noted that Northeastern approved the second collection." (Id. ¶ 28) Pasternack then provided an adequate urine sample. (Id. ¶ 29) LabCorp analyzed the sample, which tested negative for prohibited drugs. (Id. ¶ 31) LabCorp sent the results, along with the CCF, to ChoicePoint. (Id. ¶ 31)

Dr. Melvin Samuels was the Medical Review Officer ("MRO") at ChoicePoint responsible for reviewing Pasternack's laboratory results. (Id. ¶¶ 31-32) DOT regulations provide that an MRO is "a licensed physician . . . who is responsible for receiving and reviewing laboratory results . . . and evaluating potential medical explanations for certain drug test results." 49 C.F.R. § 40.3. (Id. ¶ 32) Based on the CCF, MRO Samuels determined that Pasternack had left the collection site before the test was completed, and that this conduct constituted a "refusal to test." (Id. ¶¶ 35-36) On June 15, 2007, in response to an...