Loiacano v. DISA Global Solutions, Inc. et al

Filing 77

ORDER AND REASONS granting 42 Motion for Summary Judgment; dismissing as moot 49 Motion in Limine to Exclude Evidence. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID J. LOIACANO

CIVIL ACTION

VERSUS

NO. 14-1750

DISA GLOBAL SOLUTIONS, INC., ET AL.

SECTION "B"(2)

ORDER AND REASONS
Before the Court is DISA Inc.’s (“Defendant” or “DISA”) Motion
for Summary Judgment. (Rec. Doc. No. 42). DISA seeks dismissal of
all claims against it based upon the contention that Plaintiff has
produced no evidence of DISA’s negligence. Plaintiff filed an
opposition to the Motion. (Rec. Doc. No. 73). In his opposition,
Plaintiff relies on expert testimony to assert that DISA’s failure
to inquire about other medications taken caused Plaintiff to be
terminated by his employer. DISA then filed a Reply to Plaintiff’s
opposition, urging the Court to sanction the Plaintiff and his
expert “for their efforts to mislead this Court into accepting
testimony that is irrelevant and presented in bad faith.” (Rec.
Doc. No. 76). Also pending before the Court is DISA’s Motion in
Limine to Exclude Evidence. (Rec. Doc. No. 49).
IT IS ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine is
DISMISSED AS MOOT.

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I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, David J. Loiacano, filed the instant suit against

DISA, Psychemedics Corporation (”Psychemedics”), and Nsuela R.
Mukana, M.D. on August 1, 2014. Loiacano, a Louisiana resident,
invokes this Court’s diversity jurisdiction pursuant to 28 U.S.C.
Section 1332. (Rec. Doc. No. 1). Plaintiff claims that he was
terminated by his employer of 18 years, Valero Refining Company,
as a result of the unreasonable and unreliable drug screening
procedures used by Defendants. Furthermore, Plaintiff contends
that

Defendants’

failure

to

review

or

request

information

regarding his medical history contributed to the failed drug test
and his subsequent termination.
DISA is a nationally certified corporation in the business of
administering drug and alcohol screenings for its clients. DISA
contracts

with

administrative

companies
services

to

for

provide
drug

and

them

with

alcohol

third-party

screenings

of

employees. Generally, DISA’s role in the drug-screening process
consists of collecting the hair or urine, sending the specimen to
the

laboratory

along

with

documentation

reflecting

chain

of

custody, receiving the test results from the testing laboratory,
and, if the specimen tests positive for the presence of a specific
drug, confirming with the donor that there are no legitimate
reasons for the donor’s use of the drug, and, finally, reporting
the

test

results

to

the

designated

employer

representative.
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Psychemedics is a nationally certified and licensed drug-testing
laboratory that performs toxicology testing for Valero employees.
On January 6, 2014, Mr. Loiacano was instructed by his
supervisor to report for a random drug test. Mr. Harold Williams,
an employee of DISA, took a chest hair sample from Mr. Loiacano.
The sample was placed in an aluminum pouch, which was then placed
into a Sample Acquisition Card.

The card was then sealed with

evidence tape and signed by Mr. Loiacano. Mr. Loiacano testified
via deposition that he had no objection to the manner in which Mr.
Williams collected his sample, and that he had no doubt that it
was his hair placed in the aluminum pouch. The hair sample was
then tested by Psychemedics.
Psychemedics first conducted a screening process using an
immunoassay test. The screening of Mr. Loiacano’s sample came up
positive

for

Carboxy-THC—a

metabolite

that

is

formed

when

marijuana is ingested. Because the screening was reported as a
“presumptive positive,” Psychemedics then employed a second test.
Psychemedics

used

GC/MS/MS

equipment

to

perform

a

gas

chromatography and mass spectrometry test. This subsequent test
confirmed the positive screening result.
On January 10, 2014, Mr. Loiacano received a telephone call
from Dr. Mukana who informed him that his hair sample had tested
positive for marijuana. When Mr. Loiacano told Dr. Mukana that he
did not use marijuana, she recommended that he contact Valero’s
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Human

Resources

Department.

After

speaking

with

members

of

Valero’s HR Department, Mr. Loiacano’s original hair sample was
retested using part of the original split sample. This second test
also came back positive for marijuana. Mr. Loiacano then had
separate tests done at his own expense. Both of those tests—one a
urinalysis and one a hair sample test—came back negative.
On October 16, 2014, the Court granted Defendant Mukana’s
Motions to Dismiss for Lack of Personal Jurisdiction under Rule
12(b)(2) of the Federal Rules of Civil Procedure and for Failure
to State a Claim under Rule 12(b)(6). (Rec. Doc. No. 25). Both
DISA and Psychemedics filed Motions for Summary Judgment. (Rec.
Doc. Nos. 36 & 42). The Court originally granted Psychemedics’s
Motion for Summary Judgment as unopposed (Rec. Doc. No. 41), but
later granted a Motion for Reconsideration and a Motion to Extend
Deadline to File an Opposition. (Rec. Doc. No. 54). Since that
point, Plaintiff has repeatedly sought to continue proceedings and
extend deadlines for various reasons.
On October 1, 2015 this Court conducted a telephone status
conference with all parties’ counsel. Pursuant to that conference,
it was ordered that trial be continued pending the outcome of the
summary judgment motions. Plaintiff was given one week to respond
to Psychemedics’s Motion and just over four weeks to obtain an
expert and respond to DISA’s Motion. Plaintiff failed to timely
respond to Psychemedics’s Motion for Summary Judgment, instead
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moving to dismiss them as a party. That pending motion will be
resolved along with Psychemedics’s Motion to Fix Attorney’s Fees.
Plaintiff timely filed a response to DISA’s Motion, meaning only
DISA’s summary judgment motion requires resolution.
II.

THE PARTIES’ CONTENTIONS
DISA’s Motion for Summary Judgment contends that Plaintiff

has

no

evidence

of

negligence,

making

summary

judgment

appropriate. Loiacano’s Response Memorandum presents the expert
testimony of Dr. Edward G. Brown. In attempting to raise a genuine
issue of material fact regarding negligence, Plaintiff relies on
Dr. Brown’s assertion that the steroid Versed (which Loiacano
received two injections of for joint issues) has the same mass as
THC Metabolite. Loiacano presumably takes this to mean that Versed
could have caused a false-positive, and thus DISA’s failure to
question Mr. Loiacano about other medications led to the lab
overlooking the possibility of a false-positive and Mr. Loiacano’s
ultimate

termination.

In

reply,

DISA

contends

that

the

scientifically-flawed and immaterial testimony of Dr. Brown does
not create a fact issues sufficient to prevent summary judgment.
III.

LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, “summary judgment

is

proper

‘if

interrogatories,

the
and

pleadings,
admissions

on

depositions,
file,

answers

together

with

to
the

5

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

movant must point to “portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits’ which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323.
If and when the movant carries this burden, the non-movant
must then go beyond the pleadings and other evidence to establish
a genuine issue.

Matsushita Elec. Indus. Co. V. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). However, “where the non-movant
bears the burden of proof at trial, the movant may merely point to
an absence of evidence, thus shifting to the non-movant the burden
of demonstrating by competent summary judgment proof that there is
an issue of material fact warranting trial.” Lindsey v. Sears
Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994). Conclusory
rebuttals of the pleadings are insufficient to avoid summary
judgment.

Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d

1203, 1207 (5th Cir. 1993).
a. Loiacano’s Negligence Claim
6

In a negligence action, “the plaintiff has the burden of
proving negligence on the part of the defendant by a preponderance
of the evidence.” Hanks v. Entergy Corp., 944 So. 2d 564, 578 (La.
2006). “In order to determine whether a Plaintiff should prevail
on

a

negligence

claim,

Louisiana

courts

employ

a

duty-risk

analysis,” which involves five elements:
(1) proof that the defendant had a duty to
conform his conduct to a specific standard
(the duty element); (2) proof that the
defendant’s conduct failed to conform to the
appropriate standard (the breach element); (3)
proof that the defendant’s substandard conduct
was a cause-in-fact of the plaintiff’s
injuries (the cause-in-fact element); (4)
proof that the defendant’s substandard conduct
was a legal cause of the plaintiff’s injuries
(the scope of liability or scope of protection
element); and (5) proof of actual damages (the
damages element).
Long v. State ex rel. Dept. of Transp. And Dev., 916 So. 2d 87,
101 (La. 2005). As Plaintiff would bear the burden of proof at
trial, and Defendant’s Motion for Summary Judgment has pointed to
a lack of evidence with respect to each element of negligence,
Plaintiff now bears the burden of presenting competent summary
judgment proof that there is a genuine issue of material fact
warranting trial.
1. The Duty Element
Plaintiff contends that DISA, as the party responsible for
collecting the hair specimen, had the following duties: (1) to
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transfer the specimen and ensure proper chain of custody; (2) to
report the positive result to a qualified medical review officer
(“MRO”); and (3) to ensure that the MRO contacted Mr. Loiacano to
rule out possible alternate medical explanations for the positive
test. (Rec. Doc. No. 73 at 2). Plaintiff’s opposition focuses on
this third alleged duty—the MRO’s obligation to contact him to
rule out alternate medical explanations.
Plaintiff identifies two sources as the origin of the MRO’s
duty to investigate—LA REV. STAT. ANN. § 49:1007 and the National
Institute on Drug Abuse (“NIDA”) Guidelines. Plaintiff asserts
that, pursuant to § 49:1007, the “MRO shall contact the individual
who submitted the specimen as outlined in the NIDA guidelines,
before making a final decision to verify a positive result or
report that result to the employer.” (Rec. Doc. No. 73 at 2).
However, Plaintiff’s counsel blatantly ignores the fact that §
1007 was repealed by the legislature over ten years ago. LA REV.
STAT. ANN. §49:1007 (repealed by Acts 2004, No. 901, §2, eff. July
12, 2004). Other than outdated statutes, Plaintiff provides no
authority for the assertion that Louisiana law requires drug
testing to be in accordance with the NIDA guidelines. Moreover, §
1.1 specifically notes the guidelines’ applicability to federal
agencies only. 59 FR 29908-01 § 1.1. Therefore, Plaintiff has
failed

to

adequately

identify

the

duty

owed

by

DISA

to

Mr.

8

Loiacano. Nevertheless, assuming arguendo that DISA did owe Mr.
Loiacano

a

duty

to

investigate

in

accordance

with

the

NIDA

guidelines or another similar law, Plaintiff has also failed to
present sufficient evidence of breach and causation.
2. The Breach and Causation Elements
Plaintiff’s opposition to the summary judgment motion cites
§ 2.6 of the NIDA Guidelines to demonstrate DISA’s alleged breach.
Section 2.6 provides:
The role of the MRO is to review and interpret
positive test results obtained through the
agency’s testing program. In carrying out this
responsibility,
the
MRO
shall
examine
alternate
medical
explanations
for
any
positive test result. This action could
include conducting a medical interview with
the donor, review of the donor’s medical
history, or review of any other relevant
biomedical factors. The MRO shall review all
medical records made available by the donor
when a confirmed positive test could have
resulted from legally prescribed medication.
59 FR 29908-01 §2.6 (emphasis added). Plaintiff seemingly cites
this provision to argue that DISA breached its alleged duty by not
asking Mr. Loiacano about any other medications he had taken.
However,

the

above-cited

provision

does

not

stand

for

proposition that an MRO must ask the donor about other medications.
It

simply

requires

that

the

MRO

examine

alternate

medical

explanations and review medical records made available by the

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donor. Conducting a medical interview with the donor is simply one
potential, non-required method for the MRO to examine alternate
medical explanations. Therefore, the MRO’s alleged failure to ask
Mr. Loiacano about other medications would not qualify as a breach
if the MRO did not believe another medication could have caused
the positive result. Thus, the primary issue here is whether
another drug could have caused a false-positive.
DISA’s Motion for Summary Judgment relies on the testimony of
two experts. The first, Dr. Barry Sachs, is a certified MRO
retained by DISA. In the “Statement of Dr. Barry Sachs, D.O.,” Dr.
Sachs states that “the analysis of a donor’s specimen will not
yield

a

nonnegative

or

positive

result

for

the

presence

of

marijuana unless the donor has inhaled or ingested marijuana.”
(Rec. Doc. No. 42-3 at 1). Further, Dr. Sachs asserts that, based
on a review of the drugs reportedly taken by Mr. Loiacano in the
month prior to his drug-test (including steroids and an unnamed
drug for treatment of inflammation), “those drugs could not have
caused Mr. Loiacano’s hair sample to trigger a positive result on
a hair test.” (Rec. Doc. No. 42-3 at 3).
DISA also adopts the opinions of Dr. Carl M. Selavka, the
expert retained by Psychemedics for its summary judgment motion.
Dr. Selavka stated that “[t]he presence of the unique carboxy-THC
metabolite

could

have

been

caused

only

by

ingestion

of

the
10

hallucinogen THC (found in Marijuana) on multiple occasions.”
(Rec. Doc. No. 36-5 at 3). Additionally, Dr. Selavka notes that
though there are “pharmaceutical products which contain THC,” they
require a valid prescription. (Rec. Doc. No. 36-5 at 4) “Further,
there

are

no

known

medications

(such

as

steroids

or

growth

hormones) that cause endogenous creation of THC, and no other drugs
that are metabolized to form this hallucinogen or its unique
metabolite.” (Rec. Doc. No. 36-5 at 4). Therefore, according to
both experts cited by DISA, the drugs reportedly taken by Mr.
Loiacano could not have led to a false-positive, and only the
ingestion of the hallucinogen THC found in marijuana could have
produced the positive result.
In response, Plaintiff offers the expert report of Dr. Edward
G. Brown, who has a doctorate in Chemistry and over twenty years
of laboratory experience in organic chemistry. (Rec. Doc. No. 734 at 1). Dr. Brown asserts that Versed—the steroid Mr. Loiacano
received for joint issues—“is a chemical that can be hydrolyzed to
give a hydrolysis product that has a mass of 344 amu[, which] is
the same mass as is found for the THC metabolite that is the basis
of a positive test for THC when tested by GCMS.” (Rec. Doc. No.
73-4 at 1). Accordingly, Dr. Brown asserts that “it is possible
that this metabolite of Versed is the actual compound that was
incorporated into the hair sample

. . . and that no THC metabolite

11

was present in the hair sample.” (Rec. Doc. No. 73-4 at 1). Dr.
Brown does not address the contentions of Dr. Sachs and Dr. Selavka
that none of the drugs taken by Mr. Loiacano could have caused a
false-positive. Moreover, Dr. Brown does not contend that the
steroid taken by Mr. Loiacano is one of the few prescription drugs
mentioned by Dr. Selavka that contains THC. Rather, Dr. Brown
simply provides this Court with far-fetched possibilities for why
Mr. Loiacano’s sample tested positive for marijuana.
He testifies that Versed could be hydrolyzed to the same
weight as the metabolite found in the drug screening, that it is
possible the Versed was the actual compound in the hair sample,
and that it is possible that no THC was present in the hair sample.
However, Dr. Brown does not claim that the Versed was actually in
the hair sample, or that it actually hydrolyzed at the same mass
as the compound found in the hair sample. Thus, he provides no
reasonable basis to believe that his far-fetched hypothetical
actually took place. Furthermore, he provides no scientific basis
for countering the assertions of the other two experts that such
a drug could not lead to a false-positive. Instead, he offers the
very unscientific conclusion that if the Versed was the same weight
as the substance found in the hair sample, then it is possible
that it would be confused for THC.

12

Due to the speculative nature of Dr. Brown’s findings (not to
mention

the

reasonable

scientific

jury

could

unreliability
not

find

for

of

his

assertions),

Plaintiff

based

on

a

his

testimony. Thus, no genuine issue of material fact exists. See
Anderson, 477 U.S. at 248 (noting that a genuine issue of material
fact exists when a reasonable jury could return a verdict for the
nonmoving party); Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th
Cir. 1994) (“Testimony based on conjecture or speculation is
insufficient to raise an issue of fact to defeat a summary judgment
motion.”). As there is no genuine issue of material fact concerning
whether Versed or any other legal drug taken by Mr. Loiacano could
cause a false-positive, summary judgment is proper.
IV.

Conclusion

In light of the foregoing,
IT IS ORDERED that DISA’s Motion for Summary Judgment is
GRANTED.
IT IS FURTHER ORDERED that DISA’s Motion in Limine is
DISMISSED AS MOOT.
New Orleans, Louisiana, this 23rd day of November, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

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