Pasternack v. Laboratory Corp. of America Holdings
2015 U.S. App. LEXIS 19935
| 2d Cir. | 2015Background
- Dr. Fred Pasternack, an FAA-certified pilot and Senior Aviation Medical Examiner, was selected for a DOT/FAA random urine drug test on June 5, 2007; his first specimen was insufficient and he left the collection site to see a patient, returning ~3 hours later to provide a sufficient sample that tested negative.
- The collector (LabCorp employee Theresa Montalvo) noted on the chain-of-custody form that Pasternack left and returned; a ChoicePoint Medical Review Officer (MRO) later designated the event a "refusal to test" and reported that to the employer and FAA.
- The FAA investigated, relying on alleged false statements by the collector, and revoked Pasternack's airman certificates and terminated his AME designation; administrative appeals (NTSB, D.C. Cir.) ultimately reversed or remanded, and Pasternack’s certificates were later reinstated and the refusal finding expunged.
- Pasternack sued LabCorp and ChoicePoint in federal court (diversity), asserting negligence, negligent misrepresentation, fraud, and injurious falsehood based on alleged failures to follow DOT/FAA testing regulations/guidelines and on false statements to investigators.
- The district court dismissed the claims; on appeal the Second Circuit considered two unsettled questions of New York law and certified them to the New York Court of Appeals rather than resolve them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAA/DOT drug-testing regulations/guidelines create a duty of care under New York negligence law | Pasternack: the DOT/FAA regulations and collection guidelines impose concrete duties (e.g., shy-bladder protocol, warning that leaving may be a refusal) and thus create a state-law duty actionable in negligence | LabCorp/ChoicePoint: federal regulations do not create a private right or state-law negligence duty; granting one would improperly convert regulatory violations into tort liability | Certified to NY Court of Appeals as a determinative, unsettled question of New York law (decision reserved) |
| Whether a plaintiff may establish the reliance element of fraud by showing a third party relied on defendant's false statements causing plaintiff harm | Pasternack: fraud can be proved when defendant's false statements to investigators (third parties) were relied on and caused plaintiff's injury | Defendants: New York fraud law requires plaintiff's own reasonable reliance; third-party reliance is insufficient under Second Circuit precedent | Certified to NY Court of Appeals as an unresolved, state-law question (decision reserved) |
Key Cases Cited
- Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209 (2d Cir. 2002) (elements of negligence under New York law)
- Drake v. Laboratory Corp. of America Holdings, 458 F.3d 48 (2d Cir. 2006) (federal DOT/FAA drug-testing regulatory scheme and refusal-to-test issues; courts reluctant to recognize private right for regulatory violations)
- Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1 (N.Y. 2013) (Court of Appeals allowed negligence claim against lab for mishandling sample leading to false positive)
- Darby v. Compagnie Nationale Air France, 96 N.Y.2d 343 (N.Y. 2001) (court's role in determining existence and scope of duty)
- Palka v. ServiceMaster Management Services Corp., 83 N.Y.2d 579 (N.Y. 1994) (duty-of-care is largely a legal, policy-laden question for courts)
- Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (N.Y. 1999) (elements of fraud under New York law)