McCormick Obtains Defendant's Verdict on Alleged Improper Drug Testing

12/17/2004- New England Jury Verdict Review & Analysis

 DEFENDANT'S VERDICT - ALLEGED IMPROPER DRUG TESTING - PLAINTIFF RECEIVES POSITIVE URINE TEST RESULT FROM SAMPLE COLLECTED BY DEFENDANT COMPANY - LOSS OF EMPLOYMENT - LOST WAGES.

Hampden County, Massachusetts

The plaintiff, an employee of an armored car company, was randomly tested for drugs according to his employer's policy. The defendant, a New York-based corporation, gathers urine samples for corporate customers' employees for random testing and delivers them to a lab for processing. The plaintiff brought suit against the defendant claiming that the defendant deviated from regulations by causing a false positive result for the plaintiff's sample.</b>

The defendant maintained that it followed all procedures "to the letter" and that the sample either was positive because there were drugs in the plaintiff's system, or because someone else in the chain of custody of the sample was negligent.

On the day in question, the plaintiff was told to report to the defendant for a urine test. The defendant collected a sample from the plaintiff and delivered it to an independent lab for testing. Several days later, the plaintiff was notified that his sample tested positive for the presence of morphine. The plaintiff claimed that he had not used morphine or ingested anything that would appear as morphine (such as Tylenol with codeine, cough medicine, certain kinds of food, etc.). The armored car company released the plaintiff from employment due to this test result.

The plaintiff presented to his primary care physician several days later, explained what had happened, and the physician advised the plaintiff to go to a lab for another test. The plaintiff provided a different lab with a urine sample which tested negative for morphine.

The plaintiff argued that he was wrongfully terminated from his job because of the improperly collected sample obtained by the defendant. The plaintiff also alleged that he had lost wages in excess of $50,000 and that he had been compelled to seek and obtain work in substantially lower-paying jobs subsequent to his release from employment due to the test result.

At trial, the plaintiff presented his primary care physician who stated that the plaintiff had told the physician what happened and that the physician had referred the plaintiff to a lab for a repeat test. The plaintiff's physician read the results from the second test in court. The plaintiff presented no other experts or witnesses.

The defendant argued that the Department of Transportation (DOT) maintains strict regulations with regard to the collection of samples for drug testing and that the defendant followed those regulations at all times in the collection of the plaintiff's sample. The defendant called the certified technician who had collected the plaintiff's sample on the day in question. The defendant's witness did not specifically remember the plaintiff, but gave precise, detailed testimony from recall, without notes, as to each step in the collection process. The defendant also called the president of the defendant company who testified that he is a certified technician and is certified to train others in the collection of samples for testing. The defendant's witness gave testimony as to the training procedures he employs to train technicians with regard to collection procedures and DOT regulations. The witness also stated that the defendant company collects samples for more than 500 different companies and that they have not had any prior issues with their sample collection.

The jury found no negligence by the defendant and returned a verdict in favor of the defendant.

REFERENCE
Martin vs. Safe Systems Corporation. Docket no. HDCV2002-00236; Judge Bertha D. Josephson, 9-14-04.

Attorney for defendant:
Jeffrey L. McCormick of Robinson Donovan, P.C. in Springfield, Mass.

COMMENTARY:

The issue of the chain of custody presented a stumbling block for the plaintiff in this case. The defendant pointed out that it only collects samples and does not test them. The defendant, therefore, could not be held responsible for the handling procedures followed by the lab which tested the sample. This case was remarkable in that the plaintiff brought action only against the defendant sample collector. The defendant pointed out that the plaintiff did not bring an action for negligence against the lab or against his employer for wrongful termination. Additionally, the plaintiff did not provide any testimony indicating that the defendant failed to follow protocol, but that subsequent parties in the chain of custody did follow procedures. The plaintiff did not provide evidence or testimony regarding handling of the sample after it left the custody of the defendant. Even more noteworthy, the defendant provided no testimony from a toxicologist or other medical expert to establish what can cause a false positive or as to the length of time a substance in the bloodstream would produce a positive test. Therefore, the defendant was able to argue that the plaintiff's subsequent negative test had little or no relevance to the case in the absence of expert testimony.

Conversely, the defense called strong witnesses including the technician that collected the plaintiff's sample. The defendant's technician had a great deal of experience and presented well on the stand delineating each and every step in the collection process from memory and unequivocally stating that he had never deviated from those steps in any sample he had ever collected. The defendant's employee stated that he did then and always does follow the DOT's protocols without variation. The defendant's technician testified that he sealed the sample in front of the plaintiff and then delivered it to the unaffiliated lab for testing. After that, the defendant successfully argued, the handling of the sample was out of the scope of the defendant's responsibility.

Contact Information:
Jeffrey L. McCormick, Esq. 
Telephone (413) 732-2301
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