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ROBERT S. CAPUTO, Plaintiff
vs.
COMPUCHEM LABORATORIES, INC., Defendant
 
Case:
CIVIL ACTION NO. 92-6123
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
February 23, 1994, Filed
 
Attorneys:
For ROBERT S. CAPUTO, PLAINTIFF: PEPPER, HAMILTON & SCHEETZ, PHILA, PA, RICHARD J. ORLOSKI, ORLOSKI & HINGA, ALLENTOWN, PA.
For COMPUCHEM LABORATORIES, DEFENDANT: MURRAY S. LEVIN, SARAH E. RICKS, PEPPER, HAMILTON & SCHEETZ, PHILA, PA.
 
Court:
TROUTMAN
 
Author:
The Hon. Justice E. Mac Troutman
 

In April, 1992, plaintiff in this action was offered employment at Air Products and Chemicals, Inc., Allentown, Pennsylvania, subject to passing a drug screening test. Plaintiff consented to the test and provided a urine sample which was sent to the defendant laboratory for analysis. In a report dated April 11, 1992, defendant transmitted to Air Products plaintiff's tests results, which indicated the presence of morphine in the sample. Within a few days of receiving the report, Air Products terminated plaintiff's employment.

Contending that he had never abused any controlled substance, including morphine, plaintiff here asserts claims for negligence and defamation against defendant Compuchem Laboratories based upon his loss of the employment opportunity at Air Products due to the allegedly false and defamatory report submitted by defendant.

Although, as noted in defendant's pending motion for summary judgment, there is no real dispute that the report by defendant was accurate in the sense that the test did show evidence of morphine, plaintiff nevertheless contends that because the indication of morphine was so weak, defendant should have reported the test result as negative absent an additional and more sophisticated test, which defendant did not use. Plaintiff further contends that federal regulations mandate the additional test, called a 6-MAM, and that when plaintiff was again tested in April, 1992, by an independent laboratory, the result was reported as negative. *fn1

Thus, the instant dispute centers on how the numerical results obtained from the standard and usual drug test used by both the defendant and still another independent laboratory, which later repeated the test on the same specimen and obtained the same numerical values, should have been reported. Since there is no dispute as to what the numbers actually were, the only question in this action is whether those numbers were appropriately interpreted by the defendant and appropriately reported as a positive drug test result.

The basis for plaintiff's contentions concerning the allegedly inaccurate reporting of test results which, admittedly, did indicate the presence of morphine, is the fact that common foods, such as poppy seed rolls, ingested prior to a drug test can cause some level of morphine to appear and that such level can even exceed the amount which defendant reported as a positive result of plaintiff's drug test. Hence, plaintiff contends that the additional and more sophisticated test ought to be performed when low numbers, such as those generated by plaintiff's test, are obtained by means of the usual and common test.

In other words, plaintiff is here contending, in effect, that he may have lost his job only because he ate something with poppy seeds in it on the day the employer chose to ask him to submit to a drug test due to the defendant laboratory's decision to report as a positive result, without further testing, even such a small amount of morphine as could indicate nothing more sinister than an addiction to poppy seed bagels.

Plaintiff asserts that reporting the drug test result as positive was both negligent and defamatory because defendant knew or should have known that the low level indication of morphine in plaintiff's initial test required independent corroboration before reporting a positive result to the employer, and further, that defendant knew or should have known that such independent corroboration could not be obtained from repeating the same tests as performed the first time, but required the different and more sophisticated test.

Defendant contends that it owed no duty to plaintiff upon which his negligence claim can be based, and that the undisputed accuracy of the test results eliminates any possibility of a defamation claim. In addition, defendant argues that it properly transmitted the results obtained from plaintiff's test to its client and further contends that there is no evidence of any negligence on the part of defendant in performing the drug test which resulted in plaintiff's termination by his employer. Finally, defendant asserts that there is no factual support for plaintiff's allegations that defendant actually reported that plaintiff failed the drug screening because of codeine abuse or that defendant's report to plaintiff's employer was otherwise false.

Plaintiff appears to be arguing, on the one hand, that defendant's report was false because it implied a judgment that the numerical value obtained via the test indicated substance abuse. In fact, the record reveals that the report issued to Air Products reported the laboratory's positive screening cutoff numbers for each of a variety of substances, the numerical value obtained from plaintiff's morphine test and the result, positive, obtained by comparing the number found in plaintiff's sample with the positive cutoff value used by the laboratory. (See, Defendant's Motion for Summary Judgment, Doc. #5, Exh. A-3). Since the number found in plaintiff's sample exceeded the minimum baseline value established and used by the laboratory for reporting test results as negative, the report necessarily indicated [*6] that plaintiff's test was positive for the presence of morphine. No additional meaning, such as a possible reason for such result, was ascribed to it by the defendant.

In the alternative, plaintiff appears to argue either that the defendant chose too low a number for the baseline, positive screening cutoff or that it was required to attempt to determine whether such a low positive result was due to substance abuse or to some other factor by performing an additional, more sophisticated test to assure that plaintiff would not be harmed because of the meaning which might be ascribed to a positive result by his employer. Conspicuously absent from plaintiff's arguments, however, is any basis for imposing such a broad duty upon the defendant.

Plaintiff attempts to support his claims against defendant by means of an expert report by Richard Marchese, a college chemistry instructor, who offered the opinion that a result such as that obtained from plaintiff's test should not have been reported as positive unless "verified" by means of the 6-MAM test, clinical evidence of opiate use or failure of the subject to offer a legitimate alternative explanation for the positive result. (See, Plaintiff's Answer to Defendant's Motion for Summary Judgment, Doc. #10, Exh. B).

In delineating the steps that should have been taken to verify the positive result, however, the expert is referring to standards imposed by federal regulations, which plaintiff has not established were applicable to defendant's handling of plaintiff's test. Moreover, even if such federal regulations are considered the standard by which drug-testing duties ought to be measured in all instances, the verification of positive test results as described by plaintiff's expert is to be accomplished by a Medical Review Officer (MRO) pursuant to those regulations, not by a testing laboratory. (Id.; Defendant's Reply Brief in Support of Motion for Summary Judgment, Doc. #11, Exh. B at 11980, 11985--11986, wherein the qualifications and duties of an MRO are described). Plaintiff has made no attempt to demonstrate that the defendant could or should have assumed the function of an MRO with respect to plaintiff's test results.

Indeed, it appears from the record that the test results were received and reviewed by medical personnel at Air Products, since the original Compuchem report was addressed to Dr. Lloyd Tepper and since a nurse identified as Coordinator of the Air Products Health Unit transmitted a request to the defendant to retest the specimen submitted by the plaintiff. (See, Doc. #5, Exh. A-3, A-15). Plaintiff offers no explanation or basis for asserting that liability ought to be imposed upon the defendant for failing to perform the duties of a Medical Review Officer while exonerating Air Products from any reviewing responsibility imposed by the federal regulations, notwithstanding the fact that his prospective employer apparently employs medical professionals who receive the drug test results. *fn2

Court can find no justification in the factual record or in the law for plaintiff's position that liability for either negligence or defamation can or should be imposed upon the defendant for accurately reporting a "lab positive" drug test without assuring that it was a "verified positive" result, i.e., that the testing laboratory should have fulfilled the function of a Medical Review Officer, or for some other reason should have assumed a duty to the plaintiff by notifying its client, Air Products, that the low positive number generated by plaintiff's test could have been attributable to causes other than illicit drug use. Similarly, we likewise find no legal or evidentiary support for plaintiff's implicit alternative theory that defendant had, or should have assumed, a duty to suggest to its client that the more sophisticated 6-MAM test ought to have been performed, or to perform such test on its own initiative.

Plaintiff's position in this case is particularly untenable in light of the unchallenged fact that the report from the defendant laboratory was absolutely accurate and disclosed, only to its client, the actual number obtained from plaintiff's sample for the morphine test, the baseline used by the lab to determine whether the test result should be reported as positive or negative, and the inescapable conclusion that the comparison of the two numbers indicates a positive result. It is difficult to understand plaintiff's contention that a defamation claim can arise from such circumstances.

Moreover, even if we were to agree that the defendant owed plaintiff some sort of duty to assure that the employer understood that the numerical result was a "weak" positive and, therefore, might not indicate substance abuse, we conclude that the fact that the report was transmitted to an employee at Air Products who bore the title "doctor" discharges any such hypothetical duty in that, as a matter of law, a reasonably prudent testing laboratory could thereby assume that the test results would be appropriately reviewed by knowledgeable medical personnel.

Although we might speculate that the recipient of the report could fail to appropriately review such test results, there is no basis for imposing upon the laboratory a duty to assure competent medical review of the results it obtains unless it has a contractual duty to do so. Here, however, there is absolutely no evidence to suggest that Air Products, plaintiff's employer and defendant's client, asked for or received an interpretation of the test in terms of whether the results thereof reflected drug use. It is clear from the record that the report transmitted by the defendant reflects nothing more than the obvious statement that the indisputably accurate number obtained from the test for morphine when compared to the baseline used by the laboratory showed a level of metabolite for morphine which exceeded the cutoff level for a positive result. There is likewise no evidence to suggest that the baseline value used by the laboratory was inappropriate. Indeed, such baseline is the same number mandated by the federal regulations cited and relied upon by plaintiff's expert witness. (See, Doc. #11, Exh. B at 11983).

Although it may be true, as plaintiff asserts, that the increasing use of drug testing for employment purposes raises serious questions concerning the duties owed by entities seeking and using the tests to current or prospective employees subjected thereto, the fact that there are reasons to be concerned about the uses, potential misuses or abuses of drug test results does not justify imposing additional and unprecedented duties upon a laboratory with the sole function of analyzing a sample and returning a report, particularly when such report is factually accurate.

Since we find no basis in the facts or the law for permitting liability to be imposed upon the defendant in this case, we will grant its motion for summary judgment and enter judgment in favor of defendant in the accompanying order.

And now, this 18th day of February, 1994, upon consideration of Defendant Compuchem Laboratories, Inc.'s Motion for Summary Judgment, (Doc. #5), plaintiff's response thereto, and upon hearing oral argument, IT IS HEREBY ORDERED that the motion is GRANTED.

 
Notes:

*fn1 The negative test to which plaintiff refers was performed several days later in April, 1992, and was not conducted on the same specimen used in the initial test by defendant. A still later test performed on the original specimen by an independent laboratory confirmed the results of the Compuchem tests. (See, Defendant's Motion for Summary Judgment, Doc. #5, Exh. A-24--A-26).

*fn2 Lest plaintiff assume from this passing remark that Court is suggesting that a cause of action lies against Air Products, we hasten to add that there appears to be no support whatsoever for the proposition that the cited federal regulations apply to any entity involved in this unfortunate incident.