Rigby v. Clinical Reference Laboratory, Inc.

• Decision Date: 05 February 1998
• Docket Number: No. CIV. A. 97-2143-GTV.,CIV. A. 97-2143-GTV.
• Citation: 995 F.Supp. 1217
• Parties: Richard RIGBY, Plaintiff, v. CLINICAL REFERENCE LABORATORY, INC. and Trisource Health-care, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

Page 1217

995 F.Supp. 1217

Richard RIGBY, Plaintiff, v. CLINICAL REFERENCE LABORATORY, INC. and Trisource Health-care, Inc., Defendants.

No. CIV. A. 97-2143-GTV.

United States District Court, D. Kansas.

February 5, 1998.

David W. Hauber, Boddington & Brown, Chtd., Kansas City, KS, for Richard Rigby, plaintiffs.

Patrick J. Doran, Stephen S Brown, Niewald, Waldeck & Brown, P.C., Kansas City MO, Frank Saunders, Jr., Wallace, Saunders, Austin, Brown & Enochs, Chartered, Patrick F. Hulla, Overland Park, KS, for Clinical Reference Laboratory, Inc., Health Source, Inc., fka Creekwood Family Care Clinic, Trisource Healthcare, Inc. fka Health Source, Inc. fka Creekwood Family Care Clinic, defendants.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

Plaintiff brings this action alleging claims of breach of fiduciary duty, tortious interference with contract, fraud, conspiracy, breach of contract, negligence per se, and invasion of privacy, all of which arise out of his allegedly "false positive" drug test in March 1993. The case is before the court on the summary judgment motions of defendants Clinical Reference Laboratory, Inc. (Doc. 110) and Tri-Source Healthcare, Inc. (Doc. 78). For the reasons set forth below, the motions are granted.

I. Factual Background

The following facts are either uncontroverted or based on evidence viewed in a light most favorable to plaintiff. Facts that are immaterial or not properly supported by the record are omitted.¹

In March 1993, plaintiff Richard Rigby worked as a health physics technician for Power Systems Energy Services, Inc., an independent contractor working with the Wolf Creek Nuclear Operating Corporation (Wolf Creek) to provide radiological surveys. Although an Arkansas citizen at the time, plaintiff temporarily resided in Burlington, Kansas — the site of Wolf Creek's nuclear facility. While working at Wolf Creek, plaintiff was subject to the plant's "fitness for duty" program — a Nuclear Regulatory Commission mandated program requiring certain employees to undergo drug screening.

On March 16, 1993, one of plaintiff's supervisors contacted him at his apartment and instructed him to return to Wolf Creek for a "for cause" drug test. After arriving at the plant's screening area, plaintiff met with Jayne Barnhart Pearson, a Wolf Creek employee working in the access authorization program. Plaintiff then signed a consent form² and provided two urine samples for drug screening. Later that day, Wolf Creek officials suspended plaintiff's unescorted access to the facility. Plaintiff subsequently retained attorney Mark Mobley to appeal the procedures utilized in his drug test. In a March 19, 1993 letter to Wolf Creek, Mobley questioned both the manner in which plaintiff's specimens had been gathered and the way in which the chain of custody had been handled.

Although the drug tests were administered, and the resulting samples were initially handled by Wolf Creek personnel, the actual laboratory analysis was conducted by defendant Clinical Reference Laboratory, Inc. (Clinical). Clinical performed this service for Wolf Creek under a contract that specifically incorporates the provisions of both Wolf Creek's "fitness for duty" program as well as all applicable federal regulations pertaining to drug screens for nuclear industry employees. (Pl.'s Resp. to Clinical's Mot. for Summ. J., Boyce Ex. 14). If laboratory tests reveal the presence of drugs in a specimen at or above a specified "cut-off level," Clinical transmits the results to an independent Medical Review Officer (MRO).

Under the guidelines established in the "fitness for duty" program, the MRO is responsible for confirming all positive test results. This responsibility includes contacting test subjects when necessary and investigating any possible alternative medical explanations for the positive result. The MRO then forwards its findings to the appropriate Wolf Creek officials. Defendant TriSource Healthcare, Inc. (TriSource) provides MRO services to Wolf Creek pursuant to a contractual arrangement. (Pl.'s Resp. to TriSource's Mot. for Summ. J., Boyce Ex. 13).

On March 23, 1993, Clinical erroneously faxed the results of plaintiff's drug screen to Wolf Creek personnel. At some point shortly thereafter, Clinical forwarded the same information to TriSource. On March 26, 1993, Dr. Timothy Frey, a TriSource employee and MRO, advised plaintiff that one of his urine samples had registered a trace amount (specifically, seven nanograms/milliliter) of marijuana. (Pl.'s Resp. to TriSource's Mot. for Summ. J., Rigby Depo. at 72-73). The "regular" cut-off range for positive tests in Wolf Creek's urine collection policy was fifteen nanograms/milliliter, a fact of which plaintiff was aware at the time he received his test results. (Id. at 164).

In response to Dr. Frey's request for an explanation of the test, plaintiff insisted that he had not used any illegal drugs but expressed that he had been around a number of individuals smoking marijuana at a concert several days prior to the drug screen. (Id. at 74). Dr. Frey rejected this explanation and informed plaintiff that TriSource would be reporting his drug test as positive to Wolf Creek. (Id.). In this same conversation, plaintiff asserted to Dr. Frey that his drug test should be reported as negative because it fell under the fifteen nanogram threshold. (Id. at 164). Dr. Frey responded, however, that any amount of drugs in the specimen could be reported as positive. (Id.). Dr. Frey also told plaintiff that he assumed plaintiff's second drug test was negative inasmuch as only positive drug screens were forwarded to TriSource. (Id. at 74-75).

Also on March 26, 1993, Steven Boyce, a TriSource employee, spoke with Loren Bush, a Nuclear Regulatory Commission official working at the Wolf Creek facility. The two discussed how to handle urine specimens that are suspected of having been adulterated or diluted to prevent the detection of illegal drugs. Plaintiff implicitly alleges that the Boyce-Bush conversation alluded to his drug screen.

That same day, Dr. Christopher Kafka, another TriSource employee and MRO, phoned Wolf Creek and notified Jayne Barnhart Pearson that one of plaintiff's urine samples had tested positive for marijuana. Wolf Creek then revoked plaintiff's unescorted access to the facility. Four days later, Dr. Kafka followed up his telephone conversation with Pearson by sending a written report of plaintiff's drug screen to Wolf Creek.

During the first week of April 1993, plaintiff phoned an official at the Nuclear Regulatory Commission and complained that Wolf Creek had violated its testing procedures by reporting negative test results as positive. (Pl.'s Resp. to TriSource's Mot. for Summ. J., Rigby Depo. at 83-84). On April 6, 1993, plaintiff's counsel submitted a formal complaint to the Commission echoing the grievances that plaintiff had lodged over the phone earlier that week. Plaintiff maintains that the Commission never responded to his request for an investigation.

On April 28, 1993, plaintiff appealed the revocation of his unescorted access to Wolf Creek on the ground that "the proper procedures for conducting [his] urinalysis were not followed." (TriSource's Mot. for Summ. J., Ex. H). Approximately three weeks earlier, plaintiff's attorney had requested a copy of the drug testing procedures, the "pass-fail limits for marijuana nanograms," and the specific results of plaintiff's test. (Id., Ex. K). On May 6, 1993, Wolf Creek's Quality Assurance Manager contacted plaintiff and informed him that, after careful review, the denial of access decision had been affirmed. (Id., Ex. I). On May 13, 1993, plaintiff's attorney wrote to Wolf Creek's human resources manager and indicated that plaintiff would be appealing the Quality Assurance Manager's decision.³ This appeal was denied at an unspecified date thereafter, thereby exhausting plaintiff's administrative appeals. (Pl.'s Resp. to TriSource's Mot. for Summ. J., Rigby Depo. at 156).

In September 1995, plaintiff filed a lawsuit in this court against Wolf Creek. In that action, plaintiff alleged, inter alia, that both of his urine specimens had registered levels of marijuana below the minimum cut-off levels. (TriSource's Mot. for Summ. J., Ex. E at ¶¶ 21-23). He further averred that the confirmation of a positive drug screen based on his test results amounted to negligence and effectively terminated his employment in the nuclear industry. (Id. at ¶¶ 27-31). Plaintiff dismissed that case in October 1996 with prejudice.

On March 14, 1997, plaintiff filed the instant suit against Clinical. After securing leave of court, plaintiff amended his complaint on May 27, 1997 and added TriSource as an additional defendant.

II. Summary Judgment Standards

In deciding a motion for summary judgment, the court must examine any evidence tending to show triable issues in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984). A moving party is entitled to summary judgment only if the evidence indicates "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine factual issue is one that "can reasonably be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing" that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who "may not rest on mere allegations or denials of his pleading, but must...