MCBRIDE v. AMERICAN SUBSTANCE ABUSE PROFESSIONALS, INC. et al
MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/17/13. 1/18/13 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN SUBSTANCE ABUSE
PROFESSIONALS, INC., et al.
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
January 17, 2013
Thomas McBride (Plaintiff) brings this action in
negligence against National Diagnostics, Inc. (Defendant NDI).
Defendant NDI moved for summary judgment. For the reasons that
follow, the Court will grant the Motion for Summary Judgment (ECF
Plaintiff claims Defendant NDI was negligent in reviewing
drug-test results regarding Plaintiff’s urine sample. Defendant NDI
confirmed a determination that the sample tested positive for
cocaine, resulting in Plaintiff’s termination.
The Court states the following facts in the light most
favorable to Plaintiff and draws all reasonable inferences in
Plaintiff is a resident of Chesterbrook, Pennsylvania, and
a former United Parcel Service (UPS) package truck driver. He is
currently unemployed. McBride Dep. 66:17-20, ECF No. 56-2, Feb. 3,
2012. Defendant NDI is a third-party administrator that provides
comprehensive drug testing and medical review officer (MRO) services
whose corporate headquarters are located in Charlotte, North
Carolina. Compl. ¶ 5. On June 23, 2008, Defendant NDI entered into
an agreement with UPS to provide MRO services in reviewing and
reporting the results of UPS’s employee drug tests to UPS. See NDI
Substance Abuse Testing Services Agreement 1, 4.
Pursuant to the agreement, Defendant NDI performs these
services in accordance with a collective bargaining agreement (CBA)
between the Teamsters Local 623 Union, of which Plaintiff was a member
during his employment, and UPS. Id. at 1; CBA art. 35, § 3.17. The
CBA requires that UPS testing procedures be modeled on drug and
alcohol testing regulations issued by the Department of
Transportation for regulated transportation workers (DOT
Because of the consequences that a positive test result
has on an employee, UPS will employ a very accurate,
two-stage program. Urine samples will be analyzed by a
highly qualified independent laboratory which is
certified by the Department of Health and Human Services.
All samples will be tested according to DOT drug testing
requirements. Validity testing for the presence of
adulterants shall be conducted on all specimens, per HHS
CBA art. 35, § 3.2, Def.’s Mot. for Summ. J. Ex. B. Also relevant
here, the CBA requires that an initial drug test, or “screening test,”
must use an “immunoassay” to determine levels of drugs or drug
metabolites. The CBA additionally sets the threshold for a positive
cocaine test at 300 nanograms per millilitre (ng/ml). Id. § 3.3. After
the initial test, all specimens identified as positive must be
techniques, and the CBA sets the positive test threshold for cocaine
at 150 ng/ml. Id. § 3.4. Moreover, all drug-testing laboratories
selected by UPS must be certified by the Department of Health and
Human Services (HHS) and must comply with DOT regulations and the
procedures must be performed both pursuant to DOT-mandated random
testing and as follow-up testing for post-drug and post-alcohol
rehabilitation. Id. § 3.6.
Also required by the DOT, and, by extension, UPS and
Defendant NDI, are the following: (1) a standard DOT-approved urine
custody-and-control form supplied by the testing laboratory and
signed by the employee and by handling agents at all collections
facilities, id. § 3.14; (2) a Specimen Collection Checklist to be
used with the affected employees at the collection site by the person
collecting the urine sample from the employee, which checklist is
to be used at all locations, although “it is understood that failure
to use or the refusal to use the checklist does not invalidate a
properly conducted controlled substance testing procedure,” id. §
3.15,; and (3) specimen containers that must be sealed and forwarded
to an approved laboratory for testing, with the collector inspecting
the sample and checking its temperature before sealing the sample
container and placing a security label over the cap, which label is
then signed by the employee, id. § 3.16; see also McBride Dep.
46:3-10. Specimen handling from one authorized individual or place
to another must be conducted using chain-of-custody procedures. CBA
art. 35, § 3.15.
The CBA also governs MRO procedures. It requires MROs to
be a licensed doctor of medicine or osteopathy with knowledge of
substance abuse disorders, issues relating to adulterated and
substituted specimens, possible medical causes of specimens having
an invalid result, and applicable DOT regulations. Id. § 3.17.
Furthermore, MROs must keep current on DOT regulations and comply
Reviewing the results of UPS’s drug testing program; (2) receiving
all positive and negative drug test reports as prescribed under DOT
regulations and making all reports of drug test results to employers;
(3) within a reasonable time, notifying an employee of a confirmed
positive test result; (4) reviewing and interpreting each confirmed
positive test result in order to determine if there is an alternative
medical explanation for the specimen’s testing positive; and (5)
processing an employee’s request to re-test the sample, which must
be made within 72 hours of receipt of actual notice of a positive
test result.2 Id.
The MRO must perform the following functions as part of
the review of a confirmed positive test result: (1) Provide an
opportunity for the employee to discuss a positive test result; (2)
review the employee’s medical history and relevant biomedical
factors; (3) review all medical records made available by the
employee to determine if a confirmed positive test resulted from
legally prescribed medication or other possible explanations; and
(4) verify that the laboratory report and assessment are correct.
Id. If the MRO determines, after appropriate review, that there is
a legitimate medical explanation for the confirmed positive test
result, the MRO shall report the test to the employer as a negative.
Id. § 3.18. If, however, the MRO determines that there is no
legitimate medical explanation, he or she must report the positive
test result to the employer in accordance with DOT regulations. Id.
At the employee’s request, a second specimen of the urine
sample must be forwarded by the initial testing laboratory to an
independent and unrelated HHS-approved laboratory for a GC/MS
confirmatory testing of the presence of the drug. Id. § 3.15.
The relevant timeline of events in the case at hand is as
follows. In 1991, Plaintiff began working full-time as a delivery
driver for UPS. McBride Dep. 14:7-8. Plaintiff was provided with a
copy of UPS’s drug-testing policy and was familiar with the
procedures listed above. Id. at 20:17-22. As a requirement of
employment, Plaintiff was subject to random drug and alcohol tests.
Id. at 19:24-20:1. In June 2007, Plaintiff was cited for and
subsequently convicted of driving while intoxicated in New Jersey.
Id. at 11:20-12:8; see also Order & Certification, June 10, 2007.
As a result, Plaintiff’s driving privileges were suspended in New
Jersey for six months. McBride Dep. 22:24.
UPS soon learned of Plaintiff’s DWI conviction, placed him
on probation, and required him, as a condition of further employment,
to enter into a rehabilitation agreement wherein he agreed to
voluntarily submit to unannounced drug and alcohol tests. Id. at
23:24-25:20; Def.’s Mot. for Summ. J. Ex. D. These included both
breathalyzer and urine tests, provided simultaneously at each visit
to a testing center. McBride Dep. 42:6-14. By signing the agreement,
Plaintiff acknowledged that a future positive test result would
result in the termination of his employment. Def.’s Mot. for Summ.
J. Ex. D. During his probation, Plaintiff submitted to approximately
twenty random tests—all of which came back negative for drugs and
alcohol. McBride Dep. 37:14-38:13.
On October 30, 2008, Plaintiff reported to the Worknet
testing facility in Lester, Pennsylvania, where he normally went to
participate in testing. Id. at 41:9-16, 42:14-17. On that day,
Worknet was busier than usual and it took Plaintiff longer than he
expected to complete the test. Id. at 43:3-17, 46:18-23. However,
he did not experience any problem with the collection process. Id.
at 46:8-23. After providing a urine sample, Plaintiff signed a
custody and control form, which states:
I certify that I provided my urine to the collector; that
I have not adulterated it in any manner; each specimen
bottle used was sealed with a tamper-evident seal in my
presence; and that the information provided on this form
and on the label affixed to each specimen is correct.
Def.’s Mot. for Summ. J. Ex. E, Custody & Control Form. Plaintiff
also put his initials on the seal covering his urine sample.
McBride Dep. 46:3-10.
After Plaintiff submitted his urine sample, UPS delivered
it to Advanced Technology Network (ATN) to perform drug testing.
Theriault Dep. 11:6-10; 12:16-20. ATN is certified by the Substance
Abuse and Mental Health Services Administration (SAMSA) to perform
DOT-regulated tests such as those required by UPS. Id. at
16:19-17:18. ATN tested Plaintiff’s urine sample and concluded that
cocaine metabolites were present. Def.’s for Mot. Summ. J. Ex. G,
Test Results. Specifically, Plaintiff’s urine included 1065 ng/mL
of cocaine metabolites, far exceeding either the 300 ng/mL screen
cutoff or 150 ng/mL GC/MS cutoff set by the CBA. Id. Thus, ATN reported
Plaintiff’s test as positive for cocaine. Id.
ATN then forwarded Plaintiff’s test results to Defendant
NDI for review. Theriault Dep. 13:1-13. Dr. Elaine Theriault was the
MRO who reviewed Plaintiff’s positive result. Id. at 26:7-10. Dr.
Theriault first reviewed the chain-of-custody form and confirmed
that Plaintiff’s urine specimen was collected, labeled, sealed, and
released to ATN in accordance with the CBA and DOT regulations. Id.
at 22:3-18; see also Custody & Control Form. She then reviewed ATN’s
test results, which were signed by a certifying scientist, confirming
that Plaintiff’s urine sample was examined, handled, analyzed, and
reported by ATN in accordance with DOT-regulated testing
requirements. Theriault Dep. 21:9-12; Test Results.
After confirming that the chain of custody was not broken
and that the drug test was positive, Dr. Theriault contacted
Plaintiff by telephone to discuss the results with him. McBride Dep.
58:6-59:8; Theriault Dep. 27:1-14. Tara Male, an MRO assistant, was
also on the line and took notes during the interview, which were then
recorded onto an MRO Verification Interview Worksheet (Worksheet).
Theriault Dep. 26:13-27:14; Def.’s Mot. for Summ. J. Ex. L.,
Worksheet. Dr. Theriault asked him for information that might explain
the positive test result. Plaintiff responded that he had undergone
a dental procedure five days before the drug test. She also asked
him if it were possible that someone could have slipped cocaine into
his food or drink, and he agreed.3
After her discussion with Plaintiff, Dr. Theriault
considered his explanations and systematically ruled them out as
possibilities for the positive result. She determined that any
substance ingested during the dental procedure would not have
produced a positive result because cocaine metabolites can only be
detected in urine within 72 hours of cocaine use. Theriault Dep.
28:14-18. This observation applied whether, during the procedure,
Plaintiff was administered cocaine or some sort of derivative. Id.
at 84:9-12. Furthermore, she determined that no medication would have
caused a positive test result—the only substance that would trigger
a positive result is cocaine itself. Id. at 29:23-30:15. Because the
dental procedure occurred outside the 72-hour period, Dr. Theriault
ruled out Plaintiff’s dental procedure as a justification for his
positive test result.4
Dr. Theriault recalled, and Ms. Male confirmed in her
notes, that Defendant NDI admitted to using cocaine “several months
prior to the urine drug screen.” Theriault Dep. 27:17-19; Worksheet
3. However, Plaintiff denies making the admission and denies ever
knowingly using cocaine. McBride Dep 60:11-17; 85:15-16. As there
is a fact issue regarding the alleged statement, the Court will not
In his Second Amended Complaint, Plaintiff alleged that
Defendant NDI failed to consider the presence of Septocaine, a local
anesthetic given to Plaintiff during his dental procedure, as a
factor improperly influencing the drug test result. Second Am. Comp.
As for the possibility that Plaintiff unintentionally
ingested cocaine within the 72-hour period prior to the test, Dr.
Theriault said that she still would have reported the test as
positive, because, according to the CBA and DOT regulations,
unknowing use is not a legitimate medical explanation for a positive
result. Id. at 29:16-18; see also 49 C.F.R. § 40.151 (2012). After
ruling out all Plaintiff’s explanations, Dr. Theriault verified
Plaintiff’s test result as positive for cocaine. Id. 30:20-22;
During the conversation with Plaintiff, Dr. Theriault
offered him the opportunity to have his sample retested by a second
laboratory to ensure accuracy. Theriault Dep. 34:19-35:2. Plaintiff
requested the retest, and NDI directed ATN to forward the sample to
Laboratory Corporation of America (LabCorp), also a SAMHSA-certified
testing center, to conduct the retest. Id. LabCorp confirmed that
Plaintiff’s sample tested positive for cocaine. Id. LabCorp Test
Result, Def.’s Mot. for Summ J. Ex. N. After Defendant NDI received
the results, a representative reported the positive retest to
Plaintiff. Theriault Dep. 36:1-5. Defendant NDI also reported the
positive test results from both labs to UPS, Theriault Dep.
47:23-48:3-5, and on November 5, 2008, UPS terminated his employment.
¶ 23. However, Dr. Theriault concluded that Septocaine cannot cause
a false-positive result, Theriault Dep. 28:17-18, and Plaintiff
agrees with that determination. See Pl.’s Resp. 3.
McBride Dep. 50:1-3.
II. PROCEDURAL HISTORY
After Plaintiff’s union unsuccessfully grieved his
discharge through the procedure set forth in the CBA, he then filed
a complaint in this court against UPS and American Substance Abuse
Professionals (ASA) on October 28, 201. On January 20, 2010, ASA
submitted their answer along with affirmative defenses. On March 8,
2011, the Court granted UPS’s Motion to Dismiss with prejudice, as
Plaintiff did not oppose. On March 25, 2011, the Court granted
Plaintiff=s request to file an amended complaint to include Defendant
NDI. Plaintiff and ASA then stipulated to dismissing ASA on February
3, 2012. Therefore, Defendant NDI is the only remaining defendant
in this case. On June 13, 2011, Defendant NDI filed a Motion to
Dismiss, and the Court granted it with leave to amend the complaint
to clarify Plaintiff’s negligence claims. His second amended
complaint was filed on September 19, 2011, and Defendant NDI promptly
answered. After almost a year of discovery, Defendant NDI filed the
present motion for summary judgment. Plaintiff responded, and
Defendant NDI replied. The matter is now ripe for disposition.
III. LEGAL STANDARD
Summary judgment is appropriate if there are no genuine
disputes of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). “A motion for summary
judgment will not be defeated by ‘the mere existence’ of some disputed
facts, but will be denied when there is a genuine issue of material
fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581
(3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986)). A fact is “material” if proof of its existence
or nonexistence might affect the outcome of the litigation, and a
dispute is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S.
The Court will view the facts in the light most favorable
to the nonmoving party. “After making all reasonable inferences in
the nonmoving party’s favor, there is a genuine issue of material
fact if a reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.
2010). While the moving party bears the initial burden of showing
the absence of a genuine dispute of material fact, meeting this
obligation shifts the burden to the nonmoving party who must “set
forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250.
Federal courts sitting in diversity generally apply
substantive state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938). Here, the parties rely on Pennsylvania law in their written
submissions to the Court, which indicates their agreement that
Pennsylvania law governs Plaintiff’s negligence claims. Therefore,
the Court will apply Pennsylvania law in this case. See Advanced Med.,
Inc. v. Arden Med. Sys., Inc., 955 F.2d 188, 202 n.8 (3d Cir. 1992).
Defendant NDI moves for summary judgment on all
Plaintiff’s claims. For the reasons that follow, the Court will grant
the motion as to all claims.
In his claim for negligence, Plaintiff alleges that
Defendant NDI’s potentially negligent conduct includes: (1) failing
to ensure a proper chain of custody of the subject specimen; (2)
failing to communicate with Plaintiff and the testing facilities any
and all factors which could or did affect the testing; (3) failing
to take into account and eliminate any and all factors which may
improperly influence the tests; (4) failing to prevent testing
results of and/or reporting of a “false-positive”; (5) failing to
pre-test interview Plaintiff to rule out abnormalities which could
and/or did influence the tests; (5) failing to maintain and/or cause
to be maintained appropriate quality-control testing and/or
reporting mechanisms and/or protocols; (6) failing to comply with
governing procedures, regulations, protocols, and/or laws
concerning reporting and/or testing; and (7) failing to monitor
and/or control others’ compliance. Second Am. Compl. 4.
In his Response to Defendant NDI’s Motion for Summary
Judgment, Plaintiff argues that, although he has not put forth
sufficient direct evidence, the doctrine of res ipsa loquitur
nevertheless permits him to establish a negligence claim. Pl.’s Resp.
2-5, ECF No. 60. He further argues that Defendant NDI’s primary piece
of evidence, Dr. Theriault’s deposition, should be excluded because
it is hearsay and she does not qualify as an expert. Id. 5-8.
Plaintiff relies on res ipsa loquitur as a saving grace
to preserve his claims. He argues that the Court must accept his
testimony that he did not use cocaine before testing positive, and
that, therefore, the test must necessarily be a false positive
permitting an inference of negligence. This argument fails because
Plaintiff has not demonstrated that his injury does not normally
occur absent negligence and that all other reasonable causes of the
injury have been eliminated.
Res ipsa loquiter, meaning “the thing speaks for itself,”
is a rule of evidence whereby a plaintiff may advance his negligence
case even though the evidence is insufficient to establish the
elements of negligence. Instead of directly proving these elements,
the Plaintiff “proceeds by providing facts and circumstances
surrounding the injury that make an inference of the defendant’s
negligence reasonable.” Soufflas v. Zimmer, 474 F. Supp. 2d 737, 754
(E.D. Pa. 2007) (citing Togwood v. Owen J. Rogal, DDS, P.C., 824 A.2d
1140, 1146 (Pa. 2003)). Although usually serving as an inference upon
which the jury may rely, courts may apply it in analyzing motions
for summary judgment. See Soufflas, 474 F. Supp. 2d at 754; Parkinson
v. Guidant Corp., 315 F. Supp. 2d 741, 750 (W.D. Pa. 2004).
A plaintiff must satisfy three elements in order to permit
the Court to infer without sufficient direct evidence that Defendant
NDI caused Plaintiff’s harm: (1) the event is of a kind which
ordinarily does not occur in the absence of negligence; (2) other
responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence; and (3) the
indicated negligence is within the scope of the defendant's duty to
the plaintiff. Quinby v. Plumsteadville Family Practice, Inc., 907
A.2d 1061, 1071 (Pa. 2006) (quoting Restatement (Second) of Torts
§ 328D (1965)).
As to the first element, Plaintiff, relying only on his
deposition testimony, cannot establish that his drug test result was
not of a kind which ordinarily does not occur absent negligence. To
determine whether a nonmoving party’s deposition testimony alone is
insufficient to withstand summary judgment, the assertions must be
compared to the other evidence of record to determine whether they
are “sufficient for a rational factfinder to credit the plaintiff’s
testimony, despite its self-serving nature.” Johnson v. MetLife
Bank, N.A., No. 11-800, 2012 WL 3194405, at *5 (E.D. Pa. Aug. 7, 2012)
(citing Gonzalez v. Sec’y of the Dep’t of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012)).
There are two scenarios wherein res ipsa loquiter applies.
The first are situations that are inherently of the type which do
not occur absent negligence. In these extreme cases, a plaintiff need
not put forth any direct evidence to satisfy the doctrine’s first
element. Examples include a mysterious falling barrel, Byrne v.
Boadle, 2 H. & C. 722 (Exch. 1863), a rag mistakenly left inside a
surgery patient, Coleman v. Rice, 706 So. 2d 696 (Miss. 1997), and
“a human toe in the plug of chewing tobacco,” Quinby, 907 A.2d at
1076 (quoting William L. Prosser, Torts 212 (2d ed. 1955)).
The second scenario involves situations that may occur
absent negligence, but a specific issue in a plaintiff’s case changes
the situation from the norm so that it cannot occur without
negligence. The fact that a particular specimen is reported as
positive for illegal drugs does not itself suggest the occurrence
of negligence. But if a plaintiff were to point to evidence that the
drug-test result, although positive, would necessarily have to be
the consequence of an adulterant, for example, because it is
physically impossible for a living human being to produce such high
levels of the relevant substance, then the test result “speaks for
itself” that negligence was necessarily involved. See Edwin C. Tan,
NTSB Order No. EA-5032, 2003 WL 1611414 (March 2003).
The present case falls into this second variation of res
ipsa loquiter and thus Plaintiff is obligated to submit some evidence
that his specific drug test deviated from the norm. That his last
twenty drug-test results were negative is not sufficient to cast
doubt on the latest result, because Plaintiff has not shown that the
urine samples tested in the prior twenty tests were identical to the
urine sample which produced the positive result. This is true
particularly in light of the other evidence that shows Defendant NDI
followed all regulations in reviewing the result and communicating
with him. Therefore, Plaintiff has failed to show his drug test does
not normally occur absent negligence.
Additionally, Plaintiff has failed to rule out other
reasonable causes of the injury. In the telephone conversation with
Dr. Theriault to discuss the results of the drug test, he admitted
that someone could have slipped cocaine into his food or drink,
causing him to ingest the substance unknowingly. McBride Dep.
48:13-49:7. He has also failed to account for the actions of those
not within Defendant NDI’s control, such as the collection facility
or either of the two independent testing labs. Therefore, res ipsa
loquitur cannot save him from summary judgment.5
In Plaintiff’s reply brief, and for the first time, he
argues that: (1) given that Plaintiff contends he did not use cocaine,
the positive result is proof of Defendant NDI’s negligence under the
principle of res ipsa loquitur based on the testimony of Dr.
Theriault; and (2) at the same time, that the testimony of Dr.
Theriault should be excluded as either unqualified expert opinion
or inadmissible hearsay. His arguments are, of course,
contradictory. Plaintiff cannot both seek to exclude Dr. Theriault’s
testimony, which he himself elicited at deposition, while also
relying upon it to show negligence on the part of Defendant NDI.
Be that as it may, these arguments, considered
independently, have no merit. First, as discussed above, res ipsa
loquitur is not available to Plaintiff in this case. Second, Dr.
Theriault’s role in this case is both as a fact witness and as an
expert. As a fact witness, her role is to describe how the Defendant
NDI complied with the provisions of the CBA dealing with testing and
with DOT regulations. This she did, and Plaintiff apparently does
not dispute the accuracy of her testimony on this point. To the extent
that Dr. Theriault’s testimony explained her method of and reasons
for excluding other possible causes of the positive test result, this
does constitute “expert testimony” (which Plaintiff himself
elicited). However, the testimony is admissible in that Dr.
Theriault, by virtue of education and experience, is qualified to
render an opinion in the field of drug-testing analysis, based on
facts and data of record in this case. This opinion is reliably based
upon DOT regulations and it fits the facts of the case. See Fed. R.
Evid. 702; In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 751
(3d Cir. 1994) (holding that, under Rule 702, a witness may qualify
as an expert if three requirements are satisfied: (1) the witness
must have “sufficient knowledge, skills, and training in the relevant
field”; (2) the testimony must be the product of reliable principles
and methods; and (3) the testimony must fit the facts of the case
so that it assists the trier of fact).
Ultimately, Plaintiff’s claim appears to be that the
independent drug-testing laboratories were negligent in processing
Plaintiff’s urine sample, resulting in a false positive. Plaintiff,
however, chose not to pursue these potential defendants, and, having
failed to do so, cannot turn the instant Defendant NDI into an insurer
of any negligence which may have been committed by the independent
For the foregoing reasons, the Court will grant the Motion
for Summary Judgment.
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