305 So.3d 903
La. Ct. App.2020Background
- Plaintiff Brady Bass underwent employer-ordered urine, hair, and breathalyzer tests on January 16, 2017; breath and urine were negative but the hair test was positive for marijuana.
- Bass sued Total Occupational Medicine (Total), DISA, Psychemedics, and others, alleging Total negligently collected and handled his hair sample (unsanitary conditions, lack of donor initials, potential mislabeling) causing a false-positive result.
- Total moved for summary judgment, submitting the collector Matthew Guarisco’s deposition describing standard collection steps (gloves, wiping table, showing envelope contents, sealing, donor initials on chain-of-custody) and arguing Bass had no factual proof of breach or causation.
- Bass opposed with his deposition and an expert affidavit from Dana Way, a forensic scientist, opining that collection errors (including missing donor initials) undermined sample integrity and raised doubt about the test result.
- The trial court granted Total’s summary judgment, but the First Circuit reversed and remanded, holding the court improperly weighed evidence/credibility and had to consider the admitted expert affidavit, which together created genuine issues of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Total breached the standard of care in collecting the hair sample | Bass: collection was unsanitary, protocol not followed, likely contamination/mislabeling | Total: collector followed protocol; no factual proof of breach | Reversed — Bass’s deposition plus admitted expert affidavit create a triable issue of fact |
| Whether collection errors could cause a false-positive (causation) | Bass: expert opines collector errors undermine validity and could explain inconsistent results | Total: no evidence linking collection errors to a false-positive; retest/chain-of-custody evidence supports validity | Reversed — expert affidavit and record raise sufficient doubt to preclude summary judgment |
| Admissibility and weight of expert affidavit (Dana Way) on summary judgment | Bass: Way’s affidavit is admissible and shows collection/chain-of-custody problems | Total: affidavit relies on incorrect/incomplete facts and should be excluded or disregarded | Court must consider the affidavit once admitted; Total’s objection was overruled and not timely reviewed, so the appellate court considers it and finds it creates a fact issue |
| Whether the trial court improperly made credibility determinations | Bass: trial court improperly discredited Way and weighed testimony | Total: trial court found affidavit insufficient to create an issue | Appellate court: trial court erred by weighing evidence and making credibility calls on summary judgment; must assume affidavits credible and remand |
Key Cases Cited
- Reynolds v. Bordelon, 172 So. 3d 607 (La. 2015) (de novo review standard for summary judgment)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (standards for admissibility of expert testimony)
- Thompson v. Center for Pediatric & Adolescent Medicine, L.L.C., 244 So. 3d 441 (La. App. 1st Cir. 2018) (admitted expert affidavit must be considered on summary judgment and court may not weigh credibility)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So. 2d 226 (La. 2000) (formal defects in affidavits are waived absent timely objection)
- Adolph v. Lighthouse Prop. Ins. Corp., 227 So. 3d 316 (La. App. 1st Cir. 2017) (timing of objections to expert affidavits in summary judgment practice)
- Elliott v. Laboratory Specialists, Inc., 588 So. 2d 175 (La. App. 5th Cir. 1991) (negligence duty measured by reasonable-person standard)