Wrobleski v. Meyer
| Decision Date | 28 April 2015 |
| Docket Number | No. 2014AP956.,2014AP956. |
| Parties | Anthony W. WROBLESKI, Plaintiff–Appellant, v. Michael J. MEYER, M.D. and Bellin Health Care Systems, Inc., Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
Anthony Wrobleski appeals a summary judgment dismissing his negligence claim against Michael Meyer, M.D. (Meyer) and Bellin Health Care Systems, Inc. (Bellin). Wrobleski asserts the circuit court erred when it concluded there was no evidence that Meyer's alleged negligence—violations of numerous federal regulations governing the post-testing review process of samples that have tested positive for a controlled substance—caused Wrobleski's alleged damages. We agree with the circuit court that, given Wrobleski's inability to articulate any reason for the positive test result, let alone produce evidence linking the test result (and any corresponding damages) to any alleged act of negligence on Meyer's part, summary judgment for Meyer and Bellin was appropriate. Accordingly, we affirm.
¶ 2 As of April 6, 2012, Wrobleski was employed as an over-the-road commercial motor vehicle operator for America's Service Line, LLC (ASL). Pursuant to regulations promulgated or adopted under the Federal Omnibus Transportation Employee Testing Act of 1991 (FOTETA), codified at 49 U.S.C. § 31306, as such an operator, Wrobleski was required to undergo mandatory, periodic drug testing. See 49 C.F.R. § 382.305(a) (2011).2 The regulations place the onus for such testing on the employer. Id. Many employers use qualified service agents, like Bellin, to help fulfill their collection responsibilities under the law. See 49 C.F.R. § 40.15.3
¶ 3 After a laboratory has confirmed that a sample tested positive for a controlled substance, a medical review officer (MRO) is required to verify the result by conducting a “quality assurance review” of the testing process. 49 C.F.R. § 40.123(b). The MRO is a licensed physician who serves as an independent and impartial “gatekeeper” between testing laboratories and employers. 49 C.F.R. § 40.123(a). In addition to reviewing the test process and result, the MRO must determine whether there was a legitimate medical explanation for a positive test. 49 C.F.R. § 40.123(c).
¶ 4 On April 6, 2012, ASL notified Wrobleski he was randomly selected for drug testing. Wrobleski was directed to a facility operated by Bellin, ASL's service agent. The first sample of Wrobleski's urine was taken at approximately 11:04 a.m. The technician measured the sample's temperature and found it was more than seven degrees cooler than Wrobleski's body temperature. The technician directed Wrobleski to return to the waiting room until he could provide another sample. Wrobleski provided the second sample at approximately 12:36 p.m.
¶ 5 Bellin then sent the samples to LabCorp, a testing facility in Southaven, Mississippi. Both samples Wrobleski provided were tested. The first, out-of-temperature sample tested positive for marijuana metabolites in a quantity of 65 ng/mL. The MRO in this case, Meyer, subsequently canceled this test, apparently because of the temperature disparity. However, Wrobleski's second sample also tested positive for marijuana metabolites, this time at 99 ng/mL. Both test results exceeded the relevant “cutoff concentration” for a negative test result as established by FOTETA regulations. See 49 C.F.R. § 40.87.
¶ 6 On April 9, 2012, Meyer telephoned Wrobleski. Meyer told Wrobleski he tested positive for marijuana and asked whether Wrobleski could explain the test result. Wrobleski said he could not. Wrobleski alleges that during this conversation, Meyer failed to inform, or misinformed, Wrobleski of several matters required by FOTETA regulations. Specifically, Wrobleski alleges that Meyer:
¶ 7 Wrobleski also alleges Meyer failed to inform, or misinformed, him about matters relating to split specimen testing. In “split specimen” collection, the urine sample is divided into two containers, only one of which is tested initially. If the primary sample tests positive, the employee has the right to request that a second laboratory test the split sample. See 49 C.F.R. §§ 40.171, 40.175. Wrobleski alleges Meyer:
¶ 8 Wrobleski was ultimately terminated from ASL and filed the present lawsuit against Meyer and Bellin. Wrobleski alleged that he did not use marijuana at any time in 2012, and that the test result Meyer reported was a false positive.5 He also alleged that he had, in fact, requested split specimen testing, but that, to his knowledge, no such test was ever performed. Wrobleski alleged that Meyer's violation of federal regulations was actionable negligence that resulted in Wrobleski's wage loss and inability “to obtain full-time employment as an over-the-road commercial motor vehicle operator....”6 Because Meyer was a Bellin employee, Wrobleski also sought to hold Bellin responsible for Meyer's alleged negligence under the doctrine of respondeat superior.7
¶ 9 After Wrobleski commenced litigation, Meyer and Bellin, through defense counsel, informed Wrobleski that the split specimen was still available for testing and requested that Wrobleski consent to it being tested. Wrobleski refused, and Meyer and Bellin then filed a motion for summary judgment and a motion to compel Wrobleski to submit the split specimen for testing. The motion for summary judgment asserted that even if Wrobleski's allegations were correct, he failed to show any causal connection between the regulatory violations and his damages. This failure existed because Wrobleski could not explain how any of the alleged violations—all of which occurred after specimen collection and testing—could have produced the false positive, which itself caused all of his damages.
¶ 10 The circuit court granted Meyer and Bellin's summary judgment motion without directly addressing the motion to compel. The court concluded Wrobleski failed to provide any evidence demonstrating that Meyer's “alleged FOTETA violations were a substantial factor in Wrobleski being terminated.” Moreover, the court concluded that Wrobleski could, at best, only allege that a timely split specimen test might have exonerated him, given both that Wrobleski could not identify what caused the positive test result in the first instance, and his refusal to have the split specimen tested, even if belatedly. Wrobleski now appeals.
¶ 11 We review a grant of summary judgment de novo. Enea v. Linn, 2002 WI App 185, ¶ 11, 256 Wis.2d 714, 650 N.W.2d 315. Summary judgment must be granted to a moving party if there is no genuine issue of material fact for trial and that party is entitled to judgment as a matter of law. Chapman v. B.C. Ziegler & Co., 2013 WI App 127, ¶ 2, 351 Wis.2d 123, 839 N.W.2d 425 (citing Wis. Stat. § 802.08(2) ). The purpose of the summary judgment procedure is to “avoid trials where there is nothing to try.” Kasbaum v. Lucia, 127 Wis.2d 15, 24, 377 N.W.2d 183 (Ct.App.1985).
¶ 12 When reviewing a grant of summary judgment, we follow the same methodology as the circuit court. Preloznik v. City of Madison, 113 Wis.2d 112, 115–16, 334 N.W.2d 580 (Ct.App.1983). First, we examine the complaint to determine whether it states proper claims for relief. Chapman, 351 Wis.2d 123, ¶ 2, 839 N.W.2d 425. If so, and if the pleadings join issue on such claims, we then analyze the evidentiary record—including any affidavits, depositions, answers to interrogatories, and admissions—to determine whether there is any genuine issue of disputed fact that is material to those claims. Id. “In evaluating the evidence, we draw all reasonable inferences ... in the light most favorable to the non-moving party.” Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶ 40, 294 Wis.2d 274, 717 N.W.2d 781.
¶ 13 Here, Wrobleski appeals the circuit court's determination that he failed to demonstrate any causal nexus between his alleged damages and Meyer's alleged negligence (i.e., breach of the FOTETA regulations).8 Causation is an essential element of a negligence claim, see Gritzner v. Michael R., 2000 WI 68, ¶ 19, 235 Wis.2d 781, 611 N.W.2d 906, and a finding of cause “will not automatically flow” from the finding that a person breached a duty of care, see Fondell v. Lucky Stores, Inc., 85 Wis.2d 220, 226–27, 270 N.W.2d 205 (1978).
¶ 14 Causation is a “question of whether the breach of the duty is a substantial factor in causing the harm from which damages are claimed.” Id. at 227, 270 N.W.2d 205. A defendant's conduct is a...
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