Tilson et al v. DISA, INC. et al

Filing 106

RULING granting in part and denying in part 45 Motion to Dismiss Plaintiffs' Fifth Amended Complaint. Signed by Judge Shelly D. Dick on 6/26/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TILSON, ET AL.

CIVIL ACTION

VERSUS
17-240-SDD-EWD
DISA, INC., ET AL.

RULING
Before the Court is a Motion to Dismiss Plaintiffs’ Fifth Amended Complaint
(“Motion”) filed by Defendant Clinical Reference Laboratory, Inc. (“Defendant” or
“CRL”).1 Plaintiffs Emile Tilson, Jr. (individually referred to as “Tilson”) and Debra
Tilson (individually referred to as “Mrs. Tilson”) (collectively referred to as “Plaintiffs”
or “Tilsons”) have filed an Opposition to Defendant’s Motion to Dismiss Plaintiff’s Fifth
Amended Complaint (“Opposition”) to which the Defendant has filed a Reply.2 The
Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343.

Oral argument is

unnecessary. For the following reasons, the Motion shall be GRANTED IN PART and
DENIED IN PART.
I.

FACTUAL BACKGROUND3
Tilson was employed by Turner Industries ("Turner") as a boilermaker,

pipefitter, and member of the reactor crew who worked at the Exxon petrochemical
plant in Baton Rouge, Louisiana. Tilson was subject to a work-related random drug

1

Rec. Doc. 45.
Rec. Docs. 65 & 73.
3
Rec. Doc. 42, Fifth Supplemental and Amending Complaint.
2

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test. A Turner employee collected Tilson’s urine specimen, and sent it to CRL, an
independent testing lab, for testing.
After an initial test and a second confirmatory test, CRL reported to Turner’s
Medical Review Officer ("MRO") that Tilson's urine tests reflected the presence of
marijuana metabolite at a concentration of 14 ng/mL. The marijuana concentration
reporting threshold ordered by Turner was 10 ng/mL In other words, Turner required CRL
to report as “positive” results above 10 ng/mL. Turner terminated Tilson as a result of the
test results.
On March 6, 2017, Tilson filed suit in state district court against DISA Global
Solutions, Inc. ("DISA"), Psychemedics Corporation, and Clinical Pathology Laboratories,
Inc. ("CPL")4 alleging various claims arising from the collection, testing, and reporting of
the workplace drug test. On November 15, 2017, Tilson filed a "Fifth Supplemental
and Amending Petition for Damages" against CRL and co-defendants DISA, Exxon,
and Dr. Randy Barnett.
Tilson alleges that CRL was hired “to perform the urine drug test and the
confirmation second test on Mr. Tilson’s urine specimen. CRL allegedly falsely
reported that Mr. Tilson‘s sample tested positive for the presence of marijuana, a
prohibited substance."5 Tilson alleges that CRL violated state and federal workplace
drug testing rules, specifically the Louisiana Drug Testing Statutes (“LDTSA”),6 the
U.S. Department of Transportation's ("DOT") Procedures for Workplace Drug and

4

DISA is a third-party administrator for drug testing that reports the results of drug tests from specimens
analyzed by a laboratory and reported by a Medical Review Officer. Rec. Doc. 27.
5
Rec. Doc. 42 at 6.
6
La. R.S. 49:1001-1021.

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Alcohol Testing Programs,7 the Pipeline and Hazardous Materials Safety
Administration’s ("PHMSA") drug and alcohol testing program,8 and the U.S.
Department of Health and Human Services ("HHS") Mandatory Guidelines for federal
drug testing. Tilson claims that CRL negligently interpreted or failed to exclude other
causes for Tilson's marijuana positive test result and defamed Tilson. Tilson also
alleges a violation of his civil rights under the 5th and 14th Amendments, invasion of
privacy, “interference with his employment;" and violations of HIPAA, the Americans
with Disabilities Act, the Louisiana Employment Discrimination Law, and the
Louisiana Human Rights Act. Tilson seeks damages for wrongful termination, loss of
earnings, emotional and psychological pain and suffering, and injury to his reputation.
Mrs. Tilson asserts loss of consortium and damages for emotional and psychological
pain and suffering.
II.

LAW AND ANALYSIS
A. Motion to Dismiss Standard
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all

well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”
The Court may consider “the complaint, its proper attachments, documents
incorporated into the complaint by reference, and matters of which a court may
take judicial notice.”

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead ‘enough facts to state a claim to relief that is plausible on its face.’” In

7
8

49 C.F.R. § 40.1, et seq. ("Part 40").
49 C.F.R. § 199.1, et seq.

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Twombly, the United States Supreme Court set forth the basic criteria necessary
for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
However, “[a] claim has facial plausibility when the plaintiff pleads the factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” In order to satisfy the plausibility standard,
the plaintiff must show “more than a sheer possibility that the defendant has acted
unlawfully.” “Furthermore, while the court must accept well-pleaded facts as true,
it will not ‘strain to find inferences favorable to the plaintiff.’”

On a motion to

dismiss, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation.”
B. Negligence Claims
Tilson alleges that "Defendants owed [him] a duty to undertake and perform
random drug tests in compliance with company guidelines, practices, and procedures
along with Louisiana and Federal law."9 Tilson alleges that CRL owed breached
statutory duties arising under LDTSA, DOT and PHMSA drug testing regulations. In
a negligence action under Louisiana law, Tilson bears the burden of proving duty,

9

Rec. Doc. 42 at 9.

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breach, causation and damages.10 Whether a duty exists is a question of law.11
1. LDTSA12
Tilson alleges CRL breached its "statutory duty," under LDTSA, inter alia,
because his drug test results were not reviewed by an MRO prior to his termination.
In direct contradiction of this claim, Tilson's Complaint concedes that an MRO
reviewed his laboratory test result. Tilson’s claim that CRL breached LDTSA for
failure to submit test results to an MRO is far from plausible.
CRL concedes that LDTSA “provides mandatory procedures for covered
employers in conducting workplace drug testing,”13 but CRL contends that, because
Tilson was working at a petrochemical plant, LDTSA is inapplicable. By its express terms,
the LDTSA does not apply "to ·any person, firm, or corporation engaged or employed in
the exploration, drilling, or production of oil or gas in Louisiana or its territorial waters."14
Although the Complaint alleges that Tilson, employed by Turner, worked at the Exxon
petrochemical plant, this allegation alone is insufficient to permit the Court to conclude
that Tilson or the Exxon workplace was “engaged or employed in the exploration, drilling,
or production of oil or gas.” While affidavits or other summary judgment evidence may
establish this as a fact, the Court’s analysis on a Motion to Dismiss is confined to the four
corners of the Complaint.

10

Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So. 2d 70, 74 (citing Buckley v. Exxon Corp., 390
So. 2d 512, 514 (La. 1980)).
11
Barrie v. V.P. Exterminators, Inc., 625 So. 2d 1007, 1015 (La. 1993); see also Kadlec Med. Ctr. v.
Lakeview Anesthesia Assocs., No. 04-0997, 2005 U.S. Dist. LEXIS 10328, at *16 (E.D. La. May 19,
2005).
12
Louisiana Drug Testing Statute La. R.S. 49:1001, et seq.
13
Rec. Doc. 45-1 at 7.
14
La. R.S. 49:1002(H).

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CRL further argues that, even if LDTSA applies, Louisiana does not recognize a
claim for wrongful termination resulting from a drug test performed in violation of the
LDTSA; thus, Tilson fails to state a claim for relief as a matter of law. CRL cites to cases
which hold that the LDTSA does not supplant or otherwise create an exception to
Louisiana’s employment at-will doctrine.15 An employer's failure to follow the statutory
requirements does not provide basis for claim of wrongful termination. The cases cited by
CRL hold that LDTSA does prohibit an employer from terminating an employee at-will.
The Court does not find these cases applicable to Tilson’s claims against CRL, an
independent testing lab. While an employer may find shelter from the LDTSA under the
employment at will doctrine, CRL does not. The LDTSA would be rendered meaningless
if the employment at will defense were extended to third parties who collect, test, and
report workplace drug tests.
Tested against the rigors of FRCP Rule 12(b)(6), Tilson’s claim that the LDTSA
imposes a duty on CRL survives dismissal. The Motion to Dismiss Tilson’s negligence
claim arising out of the LDTSA is DENIED.
2. Federal Statutes
Plaintiff alleges “upon information and belief” that CRL breached duties arising
under federal workplace drug testing regulations, namely DOT, PHMSA and HHS
workplace drug testing regulations. Tilson inartfully intermingles PMHSA and DOT
regulations and makes no specific allegations regarding HHS regulations. The Court

15

Sanchez v. Ga. Gulf Corp., 02-904 (La. App. 1 Cir. 11/12/03), 860 So. 2d 277, 282- 83; Narcisse v. Turner
Indus. Grp., LLC, No. 11-2659, 2012 U.S. Dist. LEXIS 60533, at *8 (E.D. La. Apr. 30, 2012) (dismissing
claims against employer for violation of the drug testing statute).

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dismisses claims asserted under HHS regulations for failure to state a claim. The Court
evaluates separately Plaintiff’s claims that PMHSA and the DOT regulations create a legal
duty on CRL.
a. PMHSA
Tilson alleges that he is a covered employee under PMSHA based on his job duties
at the Exxon facility.16 PHMSA regulations require operators of certain pipeline facilities
to test covered employees for the presence of prohibited drugs and alcohol.17 CRL moves
dismissal asserting that “PHMSA regulations apply to pipeline operators, not workplace
drug testing laboratories like CRL.”18 In opposition to the Motion to Dismiss, Tilson argues
that he “does not fall under the exceptions in § 199.2(c)(1) because the chemical facility
[where he works] transports petroleum gas/catalyst mixtures via pipeline and is not a
master meter system.”19 Tilson cites to extra-record information to support his
argument.20 As previously stated, on a Motion to Dismiss, the inquiry is whether the
allegations in the Complaint plausibly state a claim for relief. The Court’s analysis is
limited to the allegations in Complaint. The Complaint makes no factual allegations which
would bring CRL within the scope of the PMSHA drug testing regulations. Accordingly,
Plaintiff’s negligence claims related to PMHSA shall be DISMISSED.

16

Rec. Doc. 42 at 9.
49 C.F.R. § 199.1.
18
Rec. Doc. 45-1 at 8 (citing 49 CFR § 199.2(a)).
19
Rec. Doc. 65 at 5.
20
See
Exxon
Mobil,
2017
Baton
Rouge
Chemical
Plant
http://cdn.exxonmobil.com/~/media/global/files/us-refineries/2017_brcp_fact_sheet.pdf.
17

Fact

Sheet,

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b. DOT Regulations: Negligent Interpretation of the Sample
Tilson argues “CRL improperly used the initial cut-off level of 20 ng/mL and the
confirmation cut-off level of 10 ng/mL” and that under the DOT regulations “the required
cut-off levels for marijuana are 50 ng/mL for the initial test and 15 ng/mL for the
confirmation test.”21 Thus Tilson argues that his urinalysis should have been reported as
negative, and that CRL’s failure to abide the federal regulations caused his harm.
CRL moves dismissal arguing that, even if Tilson is a covered employee under the
regulations, CRL is not Tilson’s employer and owed no duty to test or report results in
accordance with DOT cut-offs. CRL argues that since it is not Tilson’s employer, CRL had
no duty to “make a determination of whether Tilson's urine specimen was required to have
been tested pursuant to the provisions of DOT or PHMSA regulations.”22 Plaintiff
concedes that “Tilson’s urine specimen was collected as a non-federal specimen.”23 The
Court finds that, as matter of law, CRL has no duty under Louisiana law to test his nonfederally regulated urine specimen pursuant to DOT drug testing regulations. The
employer is the drug tester. Where the employer specifies the parameters of the clinical
test and, as in the case, the laboratory performed the test and reported findings as
instructed by the employer, if the choice of testing parameters was negligent, the
negligence is attributable to the employer, not the testing lab.24 Tilson’s Complaint fails to
make a plausible claim of negligence for non-compliance with DOT testing regulations

21

Rec. Doc. 65 at 5.
Rec. Doc. 45-1 at 9.
23
Rec. Doc. 65 at 5.
24
Hale v. Smith/Kline Beecham Clinical Labs., No. 98-55218, 1999 U.S. App. LEXIS 31373, at *1 (9th Cir.
Nov. 24, 1999).
22

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and CRL’s Motion to Dismiss negligence claims allegedly arising from DOT regulations is
GRANTED.
3. Negligent Specimen Collection
The Plaintiffs’ Fifth Amended Complaint fails to distinguish claims made against
the three defendants against whom allegations are made.25 To the extent that Plaintiffs
assert a claim of negligent specimen collection against CRL, the Complaint fails to state
a claim. There are no allegations in the Complaint which would allow the Court to plausibly
find that CRL performed any act other than testing the sample, collected by others, and
reported the results. CRL owed no duty to Tilson relative to the collection of the sample
by others.26
4. Negligent Failure to Exclude Alternative Explanations for the Positive
Findings
Tilson alleges, again without specificity, that "Defendants" failed "to evaluate the
possibility of cross-reactivity with prescription medications,”27 failed to ask Tilson about
his medications, failed to consult with Tilson prior to reporting his results, and "did not
examine alternate medical explanation or legitimate medical reasons for the false positive
result."28 The Court finds that CRL owed no duty to Tilson to inquire about or consider

25

Rec. Doc. 42. The Fifth Amended Complaint alleges claims in globo against DISA Global Solutions,
Inc., Randy Barnett. D.O., and Exxon Mobil Corp. d/b/a Exxon Mobil Chemical Co.
26
Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 154-55 (N.D.N.Y. 1997) (testing laboratories
owe no duty to provide collectors with procedural guides on how to collect specimens or to examine
the chain of custody form for irregularities); Blakeman v. Emergency USA, 83 Va. Cir. 269, 275-76 (Cir.
Ct. 2011) (testing laboratory had no duty to review actions of the specimen collector).
27

 Rec. Doc. 42 at 7.  

28

Id.

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other information.29 Tilson's negligence claims against CRL arising from the collection of
his urine specimen, reporting and interpretation of the test results fails as a matter of law.
C. Defamation
To state a claim for defamation, Tilson must allege facts which would allow the
Court to plausibly find (1) a false and defamatory statement; (2) an unprivileged
publication to a third-party by CRL; (3) fault (negligence or greater) on the part of CRL;
and (4) resulting injury.30 Tilson's only specific allegations as to CRL are that CRL tested
Tilson's urine specimen and "falsely reported" to Turner’s designated MRO that his urine
specimen "tested positive for the presence of marijuana".31
Plaintiff’s allegation of false reporting are not plausible considering the Court’s
ruling that the DOT cut-off regulations do not impose any duty on CRL to report Tilson’s
test results as negative. There is no allegation that the result, using the lower employer
mandated cut-offs was false or inaccurate. Since Plaintiff cannot plausibly demonstrate
falsity, his defamation claim fails and the Motion to Dismiss the defamation claim is
GRANTED.
D. HIPAA
Again, devoid of specificity, Tilson alleges that "Defendants" violated his rights
under HIPAA. HIPAA regulates covered entities with access to individuals' identifiable
health care transaction records and imposes penalties for improper disclosure of
confidential medical information.32

However, only the Secretary of the U.S.

Department of Health and Human Services, and in certain circumstances state

29

Cooper v. Lab. Corp. of Am. Holdings, 181 F.R.D. 312, 320-22 (D.S.C. 1997) (no duty regarding
interpretation, specifically no duty to inform employer of alternate reasons for positive test results), aff'd on
other grounds, 150 F.3d 376 (4th Cir. 1998).
30
Costelb v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 139 (quoting Trentecosta v. Beck, 96-2388
(La. 10/21/97), 703 So.2d 552, 559).
31
Rec. Doc. 42 at 6.
32
Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (citing 42 U.S.C. § 1320d-1); 42 U.S.C. § 1320d-o.

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attorneys general, have the authority to enforce HIPAA and alleged violations of the
statute.33 There is no express or implied private cause of action to enforce violations
of HIPAA provisions.34 The Motion to Dismiss is GRANTED and Tilson’s HIPAA claim
is dismissed as a matter of law.
E. Constitutional Due Process Claims
Tilson alleges that his workplace “drug testing was in violation of the Due Process
Clause of the 5th and 14th amendments."35

There is no allegation that any act or

omission by CRL constitutes state action.36 The Plaintiffs’ constitutional violation claims
fail as a matter of law. The Motion to Dismiss the constitutional claims is GRANTED.
F. Employment Discrimination Claims
Tilson claims violations of the ADA, Louisiana Employment Discrimination Law
("LEDL"), and the Louisiana Human Rights Act ("LHRA'').37 These acts prohibit
discrimination by an employer.38 There is no allegation that CRL was Tilson’s employer.
To the contrary, Plaintiff pleads, and it is undisputed that Turner was his employer. The

33

42 U.S.C. § 1320d-5(d) (1)-(3)).
Id. n 24; see also, Dominic J. v. Wyo. Valley W. High Sch., 362 F. Supp. 2d 560, 572 (M.D. Pa. 2005)
("No federal court reviewing the matter has ever found that Congress intended HIPAA to create a private
right of action.")(quoting Swift v. Lake Park High Sch. Dist. 108, No. 03-5003, 2003 WL 22388878 at *4 (N.D. Ill.
Oct. 21, 2003)).
35
Rec. Doc. 42 at 7.
36
Johnson v. Fred's Stores of Tenn., 115 F. App'x 196, 198 (5th Cir. 2004) (noting an employee in the
private sector cannot make out a due process violation against an employer in the private sector in the
absence of evidence that the employer's acts are somehow attributable to government); Jones v. City of
Jackson, 203 F.3d 875, 880 (5th Cir. 2000) ("The Fifth Amendment applies only to violations of
constitutional rights by the United States or a federal actor."); Pellerin-Mayfield v. Goodwill Indus., SELA,
Inc., No. 02-3774, 2003 U.S. Dist. LEXIS 16462, at *8-9 (E.D. La. Sep. 12, 2003) ("It is a well-settled tenet
of federal law that state action is a condition precedent to a claim under the Fourteenth Amendment." (citing
US v. Stanley, 109 U.S. 3, 11 (1883) ("Individual invasion of individual rights is not the subject matter of the
[Fourteenth] Amendment."))).
37
Rec. Doc. 42 at 11.
38
E.E.O.C v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) ("The ADA prohibits an employer from
discriminating against a 'qualified individual with a disability on the basis of that disability.’" (quoting 42
U.S.C. § 12112(a))); La R.S. 23:302(2)(defining employer within the meaning of Louisiana' s antidiscrimination statute).
34

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Plaintiff’s employment discrimination claims against CRL fail as a matter of law, and the
Motion to Dismiss is GRANTED on these claims.
G. Tortious Interference Claims
To the extent Tilson asserts asserting a tortious interference with business
relations claim against CRL, the claim fails as a matter of law. To state a claim for
tortious interference with business relations under Louisiana law, the plaintiff must
allege facts demonstrating that CRL improperly and maliciously influenced others not
to deal with him.39 The gravamen of Tilson's claims is that CRL should have used a
higher confirmatory testing cut-off level for marijuana than the 10 ng/mL cut-off
requested by Turner. As stated, the Court finds that CRL had no duty to use any
higher threshold reporting. Thus, as a matter of law, CRL’s reporting the presence of
marijuana metabolites in Tilson’s urine sample is not improper or malicious
interference with his employment. There is no allegation that CRL acted maliciously
in the reporting of Tilson’s test results to Turner's designated MRO. Absent plausible
factual allegations of malice, ill will, or spite, the claim fails and the Motion to Dismiss
is GRANTED.
H. Loss of Consortium Claim
Mrs. Tilson alleges she suffered, including loss of enjoyment of life, lost
medical benefits, loss of consortium, and emotional pain and suffering as a result of
CRL's testing of Tilson's urine specimen. A claim for loss of consortium is derivative

39

Bogues v. La. Energy Consultants, Inc., 46,434 (La. App. 2 Cir. 8/10/11), 71 So. 3d 1128, 1134-35
(Louisiana law protects a businessperson from "malicious or wanton interference," although it permits
"interferences designed to protect legitimate interests of the actor") (citing Dussouy v. Gulf Coast Inv. Corp.,
660 F.2d 594 (5th Cir. 1981)).

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of the predicate tort claim.40 As to each of Tilson’s claims dismissed herein, Mrs.
Tilson’s loss of consortium claims are dismissed and the Motion to Dismiss is
GRANTED in part and DENIED in part.
Signed in Baton Rouge, Louisiana on June 26, 2018. 

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

40

Ferrell v. Fireman’s Fund Ins. Co., 96-3028, (La. 7/1/97), 696 So.2d 569, 576. 

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