Lead Opinion
OPINION OF THE COURT
The issue presented by this appeal is whether plaintiff Eric Landon has stated a cause of action against defendant drug testing laboratory (Kroll) for the alleged negligent testing of his biological sample. Under the circumstances of this case, we find the complaint sufficient to withstand a motion to dismiss.
On December 17, 2007, Landon’s probation officer directed him to provide an oral fluid sample for testing. The sample was taken using an Intercept DOA Oral Specimen Collection Device, manufactured by Orasure Technologies, Inc. A simultaneous urine sample was not taken. Later the same day, Landon obtained an independent blood test, for the purpose of protecting himself from a potential false positive result. The blood test came back negative for illicit and controlled substances.
Kroll, however, detected the presence of cannabinoids in the oral sample exceeding a screen test cutoff level of 1 ng/ml. The laboratory generated a written report dated December 20, 2007 informing the probation department that Landon’s sample had screen tested positive for THC. The probation department then filed a violation of probation (VOP) proceeding, seeking to have Landon’s probationary sentence revoked and to have him incarcerated. The VOP petition alleged that Landon had violated two conditions of his probation in that he had tested positive for marijuana and he had falsely reported to his probation officer that he had not used drugs or alcohol.
Landon was arraigned on the VOP petition on January 2, 2008—one day before the term of his probation was set to expire. At that appearance, he provided the court and the probation department with the negative result from his independent blood test. He also submitted to a urine test at that time, which was likewise negative for THC. Nevertheless, the VOP proceedings went forward, requiring a number of court appearances during which the terms of his probation were continued. On March 20, 2008, the petition was withdrawn and the proceedings were terminated in Landon’s favor.
Plaintiff commenced this action alleging that Kroll had issued the report reflecting the positive test result both negligently and as part of a policy of deliberate indifference to his rights. The basis for his claim was that the screen test cutoff level employed by Kroll was substantially lower than that recommended by Orasure or by federal standards and that Kroll failed
Supreme Court granted Kroll’s motion to dismiss for failure to state a cause of action. The Appellate Division reversed, finding that the complaint stated a cause of action against defendant drug testing laboratory for the negligent testing of plaintiffs biological specimen, notwithstanding the absence of a contractual relationship between the parties (
It is well settled that “[i]n assessing the adequacy of a complaint under CPLR 3211 (a) (7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference” (J.P. Morgan Sec. Inc. v Vigilant
As a threshold matter, we must determine whether Kroll owed plaintiff a duty of care. We have observed that, “[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm” (Lauer v City of New York,
Although the existence of a contractual relationship by itself generally is not a source of tort liability to third parties, we have recognized that there are certain circumstances where a duty of care is assumed to certain individuals outside the contract (see Espinal v Melville Snow Contrs.,
Additionally, there are strong policy-based considerations that counsel in favor of finding that Kroll owed a duty to plaintiff under these circumstances. Without question, the release of a false positive report will have profound, potentially life-altering, consequences for a test subject. In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation. The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that Kroll had a duty to the test subject to perform his
The situation presented here is also distinguishable from that presented in Hall v United Parcel Serv. of Am. (
The result we reach today is in keeping with that of several other jurisdictions to recognize a duty in similar circumstances (see e.g. Berry v National Med. Servs., 292 Kan 917,
In addition, we reject defendant’s argument that plaintiff failed to allege that he has suffered a cognizable harm (see e.g. Martinez v Long Is. Jewish Hillside Med. Ctr.,
Finally, we note that this complaint includes much more than a simple declaration by the plaintiff that he did not use marijuana prior to the Kroll test. Rather, the allegations of a loss of freedom, in conjunction with his particularized claim that he passed two contemporaneous drug screens that utilized proper and scientifically reliable testing protocols, are sufficient to withstand a motion to dismiss. Further, we emphasize the procedural posture—although we find that there is a duty that runs from defendant laboratory to plaintiff and that plaintiff has stated a cause of action, we express no opinion as to the ultimate merits of his claim.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.
Dissenting Opinion
(dissenting). The majority’s opinion opens the door for probationers, parolees and others who are subject to mandatory drug testing in the criminal justice system, as well as job applicants and others who are subject to drug and alcohol testing, to bring tort actions against independent third-party drug laboratories based upon the results of such testing. Because the majority’s opinion defines duty too broadly, I dissent and would answer the certified question in the negative.
It is the County of Orange that had a contract with defendant Kroll Laboratory Specialists, Inc. to conduct analyses of oral fluid samples of probationers for the presence of illicit and/or controlled substances. Here, a sample was taken from plaintiff
There is no relationship between plaintiff and Kroll, contractual or otherwise. Kroll did not know that plaintiff was the person whose sample was being tested, nor did plaintiff know that Kroll was the one doing the test. The control was strictly with the Probation Department that took the actions here, including deciding to file a VOP petition.
Because it is seemingly offended by what occurred here, the majority creates a new cause of action against third-party drug testing laboratories for “negligent testing” (majority op at 3). But the complaint alleges, at most, that Kroll: (a) had a contract with the County; (b) complied with the terms of the contract; and (c) followed its own guidelines in determining that the level of cannabinoids in plaintiffs sample exceeded its cutoff.
Although the complaint takes issue with Kroll’s alleged negligent issuance of the report and “policy of deliberate indifference,” plaintiffs primary complaint is really directed at what the Probation Department chose to do with the Kroll results, even after the Probation Department was presented with the negative results of plaintiffs independent blood test and the urine test ordered by the court. Indeed, it was the Probation Department that, in its discretion, took plaintiffs oral fluid sample, failed to simultaneously take a urine sample, filed the VOP petition and, according to the complaint, “insisted that because of [Kroll’s] positive test report the VOP proceedings continue.” The Probation Department was in the best position—indeed the only one in any position—to determine how the VOP proceedings against plaintiff would be handled, and certainly not Kroll. Thus, in my view, any relief that plaintiff seeks is better directed at the Probation Department rather than an independent drug laboratory like Kroll which, for all intents and purposes, complied with its contractual obligations.
The majority relies on Espinal v Melville Snow Contrs. (
The majority tells us that this “negligent testing” cause of action “is in keeping with that of several other jurisdictions” that have imposed a similar duty (majority op at 7). But certain of the cases upon which the majority relies arise from jurisdictions that utilize the element of foreseeability in determining whether a duty is owed in the first instance (see Berry v National Med. Servs., Inc., 292 Kan 917, 920,
The other cases cited by the majority involve specific, narrow allegations of active negligence by the testing laboratory, such as mishandling, misidentifying or improperly collecting the specimen (see Drake v Laboratory Corp. of Am. Holdings,
The question whether a laboratory’s alleged mishandling, misidentification or improper collection of a sample will result in a laboratory being answerable in damages on the ground that such alleged misconduct launched a “force or instrument of harm” was, until now, an open one. But because the complaint in this case does not even come close to the allegations made by the test subjects in Drake, Sharpe, Coleman or Duncan, the majority’s “negligent testing” cause of action would certainly encompass those specific, narrow claims where the laboratory actually played a role in bringing about erroneous test results. And, unlike the laboratories in the cases cited by the majority, it is not alleged that Kroll misplaced plaintiffs sample, tested the wrong sample, improperly collected the sample or even reported inaccurate results. Kroll received the sample from the Probation Department, tested it as per its agreement with Orange County and apprised Orange County that the results exceeded its baseline cutoff. At most, the allegations in the complaint attack Kroll’s interpretation of the test results, and not the validity of the sample itself. Thus, even assuming all of the allegations in the complaint are true, Kroll owed no legal duty to plaintiff. If the County of Orange, once sued, chooses to commence a third-party action alleging a contract breach by Kroll, it may do so. But to allow plaintiff to pursue a cause of action in a case such as this opens the door to a host of allegations of a similar nature in areas too numerous to contemplate.
Dissenting Opinion
(dissenting). The law of defamation provides a remedy for people who claim that they have been falsely reported as testing positive for drugs. The remedy is subject to strict limits, but that is as it should be. There is no good reason to invent a new tort. Since plaintiff here has not pleaded a defamation claim—indeed, he sued after the statute of limitations for defamation (CPLR 215 [3]) had run—we should reinstate Supreme Court’s order dismissing the complaint.
“Injuries to an individual’s personal and professional reputation such as the injuries alleged here have long been compensated through the traditional remedies for defamation. Of course, this plaintiff cannot avail himself of those remedies, since they are circumscribed by rules of qualified privilege that, in closely analogous circumstances, foreclose recovery in the absence of a showing of malice or other culpable conduct beyond the level of ordinary negligence. Plaintiffs recovery thus depends upon our willingness to recognize a new tort cause of action, or to adopt substantial modifications of the existing defamation remedies.” (Id. at 32-33 [citations omitted].)
In Hall, we decided that no new judicially-created remedy was called for. I agree with the majority that Hall does not control this case. In Hall, we observed that there were “serious questions . . . about the accuracy and scientific validity” of lie detector tests (id. at 33), and recognized that “some governmental oversight and regulation may be desirable” (id. at 34). We decided, however, that the problem could be better dealt with by legislative than by judicial action. We relied in part on the existence of extensive federal regulation of lie detectors (id. at 34-36). This line of reasoning does not apply to the case now before us. But I would nevertheless reach the same conclusion here that we reached in Hall, because I see no reason not to apply in cases like this the time-tested rules that govern defamation actions.
It is of course true that someone who is falsely accused of being a drug user may suffer a grievous injury. The law of defamation provides a remedy for that injury, but the remedy is subject to an important limitation known as the “common interest” privilege. That privilege is described in the Restatement (Second) of Torts § 596:
“An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter*13 correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.”
Thus, when a speaker talks to those with a “common interest in a particular subject matter” about matters that the speaker “may reasonably believe” the listener is “entitled to know,” the privilege attaches (Peavy v WFAA-TV, Inc.,
As Hall implies, the common interest privilege protects defendants in cases involving the allegedly defamatory reporting of test results (see Chapman v Labone,
Since the common interest privilege applies, plaintiff could recover for defamation only upon a showing of “malice,” which may be made in either of two ways: by proving that the person who uttered the defamatory statement knew it was false or acted in reckless disregard whether it was false or not (a standard derived from New York Times Co. v Sullivan,
Undoubtedly, most plaintiffs who claim that they were falsely branded as drug users by a testing laboratory will fail to
The policy judgment underlying the common interest privilege is that the free flow of information among those with a common interest in a subject should be protected in all but cases of egregious wrongdoing (see Willis v Roche Biomedical Labs., Inc.,
The majority makes no attempt to explain why drug testing cases should not be governed by the rules that limit recovery for defamation. The majority says, correctly, that the consequences for a person falsely accused of drug use can be severe (majority op at 6), but that is true of anyone falsely accused of serious misconduct. It has long been the law that, where a common interest privilege applies to the communication in question, the plaintiff, however seriously injured, cannot recover without a showing of malice, and I see no reason to create a new tort that effectively nullifies that rule where the occasion for the suit is a drug test.
Order affirmed, with costs, and certified question answered in the affirmative.