Willis v. Roche Biomedical Laboratories, Inc.

United States Court of Appeals,
Fifth Circuit.
No. 92-2361.
Robert E. WILLIS, Plaintiff-Appellant,
v.
ROCHE BIOMEDICAL LABORATORIES, INC., E.I. du Pont de Nemours &
Company, George M. Allison, M.D., Bill Pace, Bill Bringhurst,
Martha Kivlovitz, Defendants.
Roche Biomedical Laboratories, Inc., Defendant-Appellee.
June 6, 1994.
Appeals From the United States District Court for the Southern
District of Texas.
Before KING and JOLLY, Circuit Judges, PARKER,* District Judge.
ROBERT M. PARKER, District Judge:
Robert E. Willis ("Willis") filed this action in Texas state
court on July 31, 1991, asserting negligence and defamation claims
arising out of a test of Willis's urine that resulted in a false
positive for methamphetamines. Willis brought action against Roche
Biomedical Laboratories, Inc. ("Roche"), the laboratory that
performed the urinalysis; E.I. du Pont de Nemours & Company ("Du
Pont"), his employer; and four Du Pont employees, George M.
Allison, M.D., Bill Pace, Bill Bringhurst, and Martha Kivlovitz.
(The Du Pont company and its employees are referred to collectively
as "the Du Pont defendants" or Du Pont.)
On August 22, 1991, the Du Pont defendants, joined by Roche,
removed the action to federal court on the ground that Willis's
*
Chief Judge of the Eastern District of Texas, sitting by
designation.
1
claim arose under the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185. The district court subsequently granted the Du Pont
defendants' motion to dismiss because Willis had failed to exhaust
his contractual remedies. Although Willis appealed from the order
of dismissal, that appeal has been previously dismissed and is not
now before this Court.
On June 29, 1992, the district court granted Roche's motion
for summary judgment and this appeal followed.
I. SUMMARY OF CASE FACTS
The district court concluded that the following facts were
established by the summary judgment evidence; and neither party
disputes that this portion of the district court's opinion is
correct.
Plaintiff-Appellant Willis has been employed by Du Pont at its
La Porte, Texas chemical plant since March 26, 1979 as a utility
helper. At all times relevant to this lawsuit, his employment was
governed by a collective bargaining agreement, which included a
substance abuse policy covering La Porte plant employees. In July
1990, Du Pont, in alliance with the Union, instituted a random drug
testing policy.
Du Pont contracted with Roche to conduct the screening and
testing of urine samples provided by Du Pont in accordance with
strict protocol procedures in the contract.
On August 2, 1990, Du Pont ordered that Willis participate in
a random drug test, in accordance with its substance abuse policy.
The test was performed by Roche and a report issued to Du Pont,
2
pursuant to a consent form signed by Willis. The report indicated
that Willis had tested positive for methamphetamine use. Willis
remained employed at Du Pont and continued to receive his regular
salary after Du Pont received Roche's report. Willis was placed on
restricted work duty and was sent to a physician. Plaintiff was
also required to attend counseling sessions and was required to
submit to follow up testing.
On November 2, 1990, Roche informed Du Pont that Willis's drug
test had registered a "false positive" (for methamphetamine use).
The false positive was the result of confusing the presence of over
the counter cold medication with the presence of illegal
methamphetamine in Willis's urine. Upon learning of the mistake,
Du Pont compensated Willis for lost time and for medical expenses.
Willis brought suit for negligence, gross negligence, and
libel and slander—contending that his damages included various
aspects of mental suffering and the loss of his good name and
reputation. He also claimed monetary damages, but acknowledged
that Du Pont had made monetary amends with regard to the payment of
these sums in the form of lost work time repayment and
reimbursement for medical expenses.
II. GOVERNING LAW
In its Memorandum Opinion and Order denying Willis's motion to
remand the case to state court, the district court found that
Willis's state law claims were preempted by § 185 of the LMRA. If
that is correct, the questions before us are governed by
substantive federal law. Republic Steel Corp. v. Maddox, 379 U.S.
3
650, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965) (substantive federal law
applies to suits on collective bargaining agreements covered by
this section [§ 185].) However, the court below applied state law
to the claims in its Memorandum Opinion granting summary judgment
to Roche.
We hold that Willis's claims against Roche are not preempted
by the LMRA, because they do not require an interpretation of the
collective bargaining agreement for resolution. Rather, the
district court had pendant jurisdiction over these state claims,
and it appropriately applied Texas law.
III. APPLICABLE STANDARD OF REVIEW
Willis challenges the district court's interpretation of
Texas law and its determination that no genuine issue of
Defendant's negligence existed in the summary judgment record. We
review de novo the district court's determination of state law.
See Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217,
113 L. Ed. 2d 190 (1991) ("The obligation of responsible appellate
review and the principle of a cooperative judicial federalism
underlying Erie [Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.
817, 82 L. Ed. 1188 (1938) ] require that courts of appeals review
the state-law determination of district courts de novo."). The
standard of review at the appellate level of a district court's
grant of summary judgment requires the same analysis as employed by
the trial court. See FED.R.CIV.P. 56(c). Legal questions raised
by a grant of summary judgment are reviewed de novo.
To recover under a negligence cause of action, the plaintiff
4
(here, Willis) must establish that the defendant owed a legal duty
to the plaintiff, and then, that the defendant breached this duty,
and that damages proximately caused by this breach were suffered by
the plaintiff. See, e.g., Otis Engineering Corp. v. Clark, 668
S.W.2d 307, 312 (Tex.1983). The first question in a negligence
case such as this one—whether a duty from the defendant toward the
plaintiff exists—is obviously a pure legal issue, reviewed by this
Court de novo. The second question, whether any such duty was
breached by the defendant, is a more nuanced "legal" issue for de
novo review by this Court; it is a legal issue only to the extent
the district court decided that, as a matter of law, the plaintiff
had failed to establish the existence of a material issue of
genuine fact on the breach question. See, e.g., Jones v. Southern
Marine & Aviation Underwriters Inc., 888 F.2d 358, 360 (5th
Cir.1989) ("For summary judgment to be granted, the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with any affidavits, must demonstrate that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.").
The party moving for summary judgment under Federal Rule of
Civil Procedure 56 (here, Roche) bears the burden of establishing
that its opponent has failed to raise a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 2553, 91 L. Ed. 2d 265 (1986). Rule 56 first imposes a burden
of production on the moving party to make a prima facie showing
that it is entitled to summary judgment. In a case in which the
5
nonmoving party bears the ultimate burden of persuasion at
trial—such as this case—the movant might satisfy its burden
shifting obligation by either: (1) submitting evidentiary
documents that negate the existence of some material element of the
opponent's claim or defense; or (2) demonstrating that the
evidence in the record insufficiently supports an essential element
of the opponent's claim or defense. If (and only if) the movant
satisfies this prima facie obligation, the movant will have
sufficiently "shifted" the summary judgment burden to the
nonmovant—to demonstrate that summary judgment is actually
inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-
327, 106 S. Ct. 2548, 2552-55, 91 L. Ed. 2d 265 (1986); Lavespere v.
Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178-179 (5th
Cir.1990), cert. denied, --- U.S. ----, 114 S. Ct. 171, 126 L. Ed. 2d
131 (1993).
Of course, "[s]ummary judgment procedure is properly regarded
not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed "to secure
the just, speedy and inexpensive determination of every action.' "
Celotex, 477 U.S. at 327, 106 S.Ct. at 2555 (quoting FED.R.CIV.P.
1; and citing William W. Schwarzer, Summary Judgment Under the
Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.
465, 467 (1984)). Nevertheless, just as settled is the principle
that, when viewing summary judgment motions, courts must be
vigilant in determining whether either an inference or
circumstantial evidence might suffice to create the existence of a
6
factual dispute about the claims—lest courts "use summary judgment
as a "catch penny contrivance to take unwary litigants into [their]
toils and deprive [the litigants] of a trial [to which they are
actually entitled].' " Fontenot v. Upjohn, 780 F.2d 1190, 1197
(5th Cir.1986) (quoting William W. Schwarzer, Summary Judgment
Under the Federal Rules: Defining Genuine Issues of Material Fact,
99 F.R.D. 465, 466 (1984), which in turns quotes Whitaker v.
Coleman, 115 F.2d 305, 307 (5th Cir.1940)). See also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91
L. Ed. 2d 202 (1986) ("at the summary judgment stage the judge's
function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial."); id. at 251-252, 106 S.Ct. at 2511-12 ("the
inquiry ... is ... whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.").
Indeed, a court's determination of a summary judgment
motion—whether there exist genuine issues of material fact—requires
deference to the nonmoving party. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158-159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970)
(any doubt as to the existence of a genuine issue for trial should
be resolved against the moving party); United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) ("[o]n
summary judgment the inferences to be drawn from the underlying
facts ... must be viewed in the light most favorable to the party
opposing the motion."). See also e.g., Jones v. Southern Marine &
7
Aviation Underwriters Inc., 888 F.2d 358, 360 (5th Cir.1989) ("fact
questions are considered with deference to the nonmovant.");
Archie By Archie v. Illinois Central Gulf Railroad Co., 709 F.2d
287, 288 (5th Cir.1983) ("In reviewing a district court's grant of
summary judgment, we are required to consider the evidence "in the
light most favorable to the party resisting the motion.' ")
(quoting Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th
Cir.1983); FED.R.CIV.P. 56); In re Japanese Electronic Products
Antitrust Litigation, 723 F.2d 238 (3rd Cir.1983) ("[i]f ... there
is any evidence in the record from any source from which a
reasonable inference in the [nonmoving party's] favor may be drawn,
the moving party simply cannot obtain a summary judgment...."),
rev'd on other grounds sub nom. Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986). Or, as Justice White explained in his "majority fifth
vote," concurring opinion in Celotex Corp. v. Catrett, 477 U.S.
317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986):
[T]he movant must discharge the burden the Rules place upon
him: It is not enough to move for summary judgment without
supporting the motion in any way or with a conclusory
assertion that the plaintiff has no evidence to prove his
case.
A plaintiff need not initiate any discovery or reveal his
witnesses or evidence unless required to do so under the
discovery Rules or by court order. Of course, he must respond
if required to do so; but he need not also depose his
witnesses or obtain their affidavits to defeat a summary
judgment motion asserting only that he has failed to produce
any support for his case. It is the defendant's task to
negate, if he can, the claimed basis for the suit.
Celotex, 477 U.S. at 328, 106 S.Ct. at 2555 (emphasis added).
Moreover, it is especially difficult for a defendant to
8
prevail on a Rule 56 summary judgment motion when the motion is
based on the assertion that there is no factual dispute with regard
to an issue of negligence—inasmuch as those questions (i.e., of
whether the defendant used reasonable care relative to a task in
issue) are in general regarded as being within the special
competence of the jury. 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, CIVIL 2d, § 2729 (Supp.1993).
See also Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d
167, 178 (5th Cir.1990) ("this court has consistently declared that
"the use of summary judgment is rarely appropriate in negligence or
products liability cases, even where the material facts are not
disputed.' ") (quoting Trevino v. Yamaha Motor Corp., 882 F.2d 182,
184 (5th Cir.1989); other citations omitted), cert. denied, ---
U.S. ----, 114 S. Ct. 171, 126 L. Ed. 2d 131 (1993); see also Gauck
v. Meleski, 346 F.2d 433, 437 (5th Cir.1965) ("Because of the
peculiarly elusive nature of the term "negligence' and the
necessity that the trier of fact pass upon the reasonableness of
the conduct in all the circumstances in determining whether it
constitutes negligence, it is the rare personal injury case which
can be disposed of by summary judgment, even where historical facts
are concededly undisputed.").
IV. ANALYSIS
We turn now to the question(s) of whether the district court
erred in granting the defendant's motion for summary judgment in
this particular case.
A. DID ROCHE OWE WILLIS A LEGAL DUTY IN NEGLIGENCE?
9
Willis first challenges the district court's determination
that Roche owed no legal duty to Willis under Texas law to use
reasonable care in its administration of a drug test of Willis's
urine sample. We agree with Willis that the district court erred
in ruling no such duty existed.
The district court's holding was predicated on the conclusion
that Texas law was insufficiently developed on the specific issue
of a laboratory's liability for negligent drug testing for a
federal "Erie court" to predict, and thus that the court was forced
to rely on the law of negligence as it applies to physicians
employed as independent contractors. However, the law of Texas is
indeed sufficiently clear for Erie court prediction purposes on the
specific issue of a drug testing laboratory's duty to testees to
use reasonable care in conducting its tests. See, e.g., Doe v.
SmithKline Beecham Clinical Laboratories, Inc., 855 S.W.2d 248
(Tex.App.—Austin 1993) (Carroll, C.J.) (writ of error granted Feb.
2, 1994).
In the recent Texas Court of Appeals case we deem
determinative on the question of duty presented in this
case—SmithKline, supra: an employer rescinded a job offer it had
made to Plaintiff Doe, because of a "false positive" generated by
the defendant outside laboratory relative to Doe's urine sample.
The drug laboratory in SmithKline used the same testing technology
as was used by Roche in Willis's case—a combination of the initial
"screening" "EMIT" test and the "confirming," more sophisticated
(and more reliable) "GC/MS" test), which mispurported that Doe used
10
opiates.1 Doe's only recourse was to reapply for employment with
the company in six months; but the company declined Doe's
reapplication. The SmithKline Texas intermediate appellate court
opinion reverses a trial court summary judgment ruling in favor of
the laboratory.
As the Texas Court of Appeals explains in SmithKline:
The Texas Supreme Court has described the existence of a
"duty" [in negligence cases] as follows: "[I]f a party
negligently creates a situation, then it becomes his duty to
do something about it to prevent injury to others if it
1
It is common for most drug testing programs to
differentiate between screening and confirming tests.
The most accurate tests are expensive, slow and require
highly trained personnel. This makes them unsuitable
for large scale drug screening. The practice has
developed of using an inexpensive test designed for
maximum sensitivity as a screening test, followed by a
sophisticated confirming test. Screening tests are
designed to yield fewer false-negative results, since a
negative result will end the testing process. By far
the most frequently used screening test is the Enzyme-
Multiplied Immunoassay Technique (EMIT). * * *
* * * The principal disadvantages of the EMIT test
are that adulterated urine samples can produce
universally false-negative results and other
prescription and nonprescription drugs may cross react,
causing false-positives. * * *
* * * [Gas Chromatography/Mass Spectrometry (GC/MS) is
a commonly-used "confirming" test]. This is probably
the most accurate drug testing tool. * * * GC/MS
instrumentation is usually automated and under computer
control, with the instrument's operational parameters
available for storage, printout, and evaluation. Data
generated from GC/MS instruments can easily be reviewed
by independent third parties. Within the scientific
community, it is generally accepted that if positive
screening test results are confirmed by a GC/MS test,
no false positives should occur.
Douglas L. Stanley, Employee Drug Testing, 61 JOURNAL OF THE
KANSAS BAR ASSOCIATION 19 (Jan. 1992) (citing Reliability of
Urine Drug Testing, 258 JAMA 2587-2588 (1987)).
11
reasonably appears or should appear to him that others in the
exercise of their lawful rights may be injured thereby." More
recent cases have described duty as a function of several
interrelated factors—the risk, foreseeability, and likelihood
of injury weighed against the social utility of the actor's
conduct—of which the foremost and dominant consideration is
the foreseeability of the risk. If a risk is foreseeable, it
gives rise to a duty of reasonable care.
SmithKline, id. at 255 (quoting Buchanan v. Rose, 159 S.W.2d 109,
110 (Tex.1942); and citing Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole,
732 S.W.2d 306, 311 (Tex.1987); Otis Engineering Corp. v. Clark,
668 S.W.2d 307, 312 (Tex.1983); Corbin v. Safeway Stores, Inc.,
648 S.W.2d 292, 296 (Tex.1983)). Pursuant to these interrelated
factors of consideration, SmithKline holds that a drug tester owes
a duty of reasonable care to the person whose bodily fluids are
assayed for traces of illegal drugs (the drug testee):
As stated in [the Texas Supreme Court's case,] Otis, "changing
social conditions lead constantly to the recognition of new
duties." Otis, 668 S.W.2d at 310. If any individual has "at
least partially created the danger" in issue, he is under an
affirmative duty to act. El Chico, 732 S.W.2d at 306. We
conclude that SmithKline is not merely an innocent bystander,
but rather, it partially created a dangerous situation. As
information services become more prevalent in our society, the
information providers should be held accountable for the
information they provide. Such information should be complete
and not misleading. Credit-reporting agencies have long been
held to the exercise of due care in securing and distributing
information concerning the financial standing of individuals,
firms, and corporations. See e.g., Bradstreet Co. v. Gill, 72
Tex. 115, 9 S.W. 753, 757 (1888). * * *
* * * It is foreseeable that employers would interpret a
raw result showing a positive opiate test result as
exclusively indicating illegal or illicit drug use and would
not consider the possibility of ... anomalies.
SmithKline, id. at 255-256. The evidence before the district court
indicates that Willis's employer (Du Pont) may well have
12
interpreted the Roche-administered test results in such an
"exclusively indicative" manner. One of the items of evidence the
district court deemed determinative for purposes of granting
Defendant-Appellee Roche's motion for summary judgment was a
submitted attachment to a Du Pont employee handout, dated December
18, 1989, which "assures" potential testees-employees that Du Pont
was "confident that all positive results will be as accurate as
science permits." (Record, Vol. 1., p. 274).
Opinions of the Texas Courts of Appeal are "indicia of state
law," which should be followed by the federal courts sitting as
"Erie courts" absent a "strong showing that the state supreme court
would rule differently." Lavespere v. Niagara Machine & Tool
Works, Inc., 920 F.2d 259, 260 (5th Cir.1990) (emphasis added;
citations omitted), cert. denied, --- U.S. ----, 114 S. Ct. 171, 126
L. Ed. 2d 131 (1993). And the fact that the Texas Supreme Court has
granted a writ of error in SmithKline, and thus will review this
case, does not represent such a "strong showing that the state
supreme court w[ill] rule differently [from the SmithKline Texas
Court of Appeals]." Indeed, we deem the SmithKline court's basic
reasoning as to the existence of the drug testing laboratory's duty
to be quite soundly based on established Texas law, regardless of
the fact that SmithKline represents the first reported Texas case
to directly address the particular question of the duties of drug
testing laboratories to testees. SmithKline is certainly a better
representative of relevant Texas law than is the line of physician
liability cases on which the district court relied.
13
We deem it relevant as well that several other courts
addressing the particular issue of whether a negligence duty runs
from the drug testing laboratory to testees have deployed the same
analysis exhibited in SmithKline. In Elliott v. Laboratory
Specialists, Inc., 588 So. 2d 175 (La.App. [5th Cir.] 1991), writ
denied, 592 So. 2d 415 (La.1992), for example, the Louisiana Court
of Appeals affirms an award of $25,000 in damages to a testee
against the drug testing company administering the test, as the
testing company was found to have failed to conform with
appropriate and proper testing methodology. Like the Texas Court
of Appeals in SmithKline, the Elliott court explains that to hold
a testing laboratory does not owe the testee a duty to analyze his
or her bodily fluid in a scientifically reasonable manner would
work an abuse of fundamental fairness and justice. The Elliott
court explains that such a laboratory should be held responsible
for its conduct, as the risk of harm in our society to an
individual because of a false-positive drug test is so significant
that any individual wrongfully accused of drug usage by his or her
employer is properly within the scope of protection under the law.
Elliott, id.; see also Lewis v. Aluminum Co. of America, 588 So. 2d
167 (La.App. [4th Cir.] 1991), writ denied, 592 So. 2d 411
(La.1992); Nehrenz v. Dunn, 593 So. 2d 915 (La.App. [4th Cir.]
1992). See generally Douglas L. Stanley, Employee Drug Testing, 61
JOURNAL OF THE KANSAS BAR ASSOCIATION 19 (Jan. 1992) (noting that "[t]he
most accurate [drug] tests ... require highly trained personnel;"
and "within the scientific community, it is generally accepted that
14
if positive screening test results are confirmed by a GC/MS test"
[i.e., the type of test used by Roche in this case], "no false
positives should occur "; and reporting that, in light of these
facts, a state court jury in Kansas has held Roche liable to a
testee plaintiff for its improperly administered GC/MS testing of
the plaintiff's urine—which faulty administration resulted in the
generation and reporting of a false positive for plaintiff's
illegal drug use) (emphasis added) (citing a relevant Journal of
the American Medical Association (JAMA) article on the proposition
about the generally reliable GC/MS drug testing technology:
Reliability of Urine Drug Testing, 258 JAMA 2587-2588 (1987)). See
generally also Canipe v. National Loss Control Service Corp., 736
F.2d 1055 (5th Cir.1984) (reversing the district court's grant of
summary judgment for the defendant in a negligence action brought
(under Tennessee law) by an injured machine operator against the
corporation which had contracted with the machine operator's
employer to provide safety inspections and related
accident-prevention services at the plant where the machine
operator worked, because, inter alia, of the existence of genuine
issues of material fact as to whether the defendant corporation
performed its undertaking negligently, and as to whether such
negligence proximately caused the machine operator's injury), cert.
denied, 469 U.S. 1191, 105 S. Ct. 965, 83 L. Ed. 2d 969 (1985).
In sum, we hold that under current Texas law, Roche owed
Willis a duty of reasonable care in conducting tests on Willis's
urine sample for illicit drug use by Willis, for use by Willis's
15
employer in decisionmaking relative to Willis's employment
conditions.
B. DID ROCHE FULFILL ITS DUTY TO EXERCISE REASONABLE CARE IN
TESTING WITH RESPECT TO WILLIS?
The district court held too that, even assuming Roche owed a
duty of care to Willis, Roche fulfilled that duty and thus could
not have been negligent. We conclude that the summary judgment
evidence discloses otherwise.
As the party moving for summary judgment, Roche has the
initial burden of submitting evidentiary documents comprising a
prima facie showing that it is entitled to summary judgment.
Lavespere, supra, 910 F.2d at 178. Roche met this initial burden
by producing summary judgment evidence in the form of an expert
affidavit—from Dr. Paula Childs, a laboratory director at
Roche—that responds to and negates the allegations set out in
Willis's complaint, including Willis's allegations concerning
Roche's use of "the most advanced" (GC/MS) testing technology
available, and its administration of that technology (the use of a
particular chemical in the application of the GC/MS technology).
Hence, the burden was "shifted" to Willis to go beyond his
pleadings, and set out specific facts—supported by evidence—to show
summary judgment was not appropriate, because genuine fact issues
exist. Lavespere, supra. To this end, Willis attached to his
affidavit a Du Pont memorandum, which states: (1) Roche had
discovered a potential problem with methodology used to confirm
positive tests for methamphetamines; (2) that it appeared that
this problem was isolated to Roche and to the confirmation of
16
methamphetamines; and (3) that it appeared the problem began in
June 1990. This evidence and the inferences from it, viewed in the
light most favorable to Willis, indicate that something unique to
Roche's application of the GC/MS testing technology resulted in a
Roche problem with confirming positive test results. Although the
memorandum gives no indication of exactly when Roche discovered a
problem existed, read in the light most favorable to Willis, it
suggests that Roche knew or should have known of a problem with its
methodology as early as June 1990—two months before Roche tested
Willis's urine specimen. Summary judgment evidence further
discloses that Roche lost its National Institute on Drug Abuse
(NIDA) certification because of the disproportionately high level
of false positives generated by its particular administration of
the GC/MS methamphetamine tests.
Willis has therefore called into (genuine, material) question
whether Roche used due, reasonable care in testing Willis's urine
sample. See, e.g., Humphreys v. PIE Nationwide, Inc., 723 F. Supp.
780 (N.D.Ga.1989) (holding that material issues of fact, precluding
summary judgment, existed as to whether the defendant employer had
followed the proper chain of custody procedures in connection with
the handling of the plaintiff's urine sample for drug testing
purposes). Roche's summary judgment argument that it was using
"the most advanced" testing technology available when it tested
Willis's sample—and therefore could not, as a matter of law, be
held to have used anything but reasonable care in its testing of
Willis's urine sample—provides it with no summary judgment shield
17
against the obvious genuine issue of material fact in this case as
to how it actually administered or deployed this technology
relative to Willis's urine sample. Roche's argument is akin to the
obviously untenable position that there could not be a genuine
issue of material fact about whether a driver of an automobile in
a car crash was negligent in her operation of the vehicle, simply
because the vehicle is generally recognized in the automobile
industry as the safest of all cars currently sold. See generally
Canipe v. National Loss Control Service Corp., 736 F.2d 1055 (5th
Cir.1984) (reversing the district court's grant of summary judgment
for the defendant in a negligence action brought by an injured
machine operator against the corporation which had contracted with
the machine operator's employer to provide safety inspections and
related accident-prevention services at the plant where the machine
operator worked, because, inter alia, genuine issues of material
fact existed as to whether the defendant corporation performed its
undertaking negligently and whether such negligence proximately
caused the machine operator's injury), cert. denied, 469 U.S. 1191,
105 S. Ct. 965, 83 L. Ed. 2d 969 (1985).
In sum: longstanding, bedrock summary judgment
principles—from the days when summary judgment was a relatively
disfavored judicial device, and continuing through the Supreme
Court's 1986 "trilogy" of summary judgment cases liberalizing the
utilization of the device2—are to the effect that fact questions
2
See Matsushita Electric Industrial Co. v. Zenith Radio, 475
U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202
18
are considered with deference to the nonmovant, inferences to be
drawn from the underlying facts must be viewed in the light most
favorable to the party opposing the motion, and, in general,
genuine issues of material fact are to be left for reasonable
resolution by the fact-finder. Under any principled summary
judgment analysis, the record in this case demonstrates the
existence of genuine issues of material fact as to Roche's
negligence in conducting a urinalysis for drug use on Willis's
urine sample which resulted in a "false positive." The issue is
not whether we (or the district court) think(s) Plaintiff will or
will not prevail at trial. The issue is whether there exist
genuine, material fact issues for resolution by the trier of fact.
And whether Roche fulfilled its duty of reasonable care when it
tested Willis's urine for methamphetamine use is a genuine,
material, disputed fact issue on the record before us. Drawing all
reasonable inferences in favor of Summary Judgment Nonmovant
Willis, as we must, we conclude that the record in this case
contains evidence from which a jury could reasonably conclude that
Roche was negligent in the manner in which it administered the
generally reliable GC/MS drug testing technology relative to
Willis's urine sample, and that such negligent application of this
test technology proximately caused injury to Willis. Accordingly,
we hold that the district court erred in concluding that there was
no genuine issue of material fact for fact-finder resolution as to
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986).
19
whether Roche fulfilled its duty to Willis.
C. REGARDING WILLIS'S NEGLIGENCE DAMAGES; OR, DID WILLIS FAIL TO
PLEAD A VIABLE THEORY OF RECOVERY?
Appellee Roche has also argued on appeal that affirmance of
the district court's entry of summary judgment is necessary because
Willis failed to even plead a viable cause of action under Texas
law. Roche relies on the Texas Supreme Court's recent opinion in
Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993), for the proposition that
Texas does not recognize a cause of action for negligent infliction
of emotional distress.3
While it is true that the Texas Supreme Court holds in Boyles
that "there is no general duty not to negligently inflict emotional
distress[,]" the Boyles court also carefully explains that its
"decision does not affect a claimant's right to recover mental
anguish damages caused by defendant's breach of some other legal
duty." Boyles, 855 S.W.2d at 597. Simply put: Boyles does not
overrule Texas law generally developing negligence duties,
breaches, and damages—which law constitutes the type of case Willis
pleaded and controls the question of whether there exist or do not
exist genuine issues of material fact in this case. Indeed, the
Boyles court even emphasizes that it does not disturb the
"negligent infliction of emotional damage" caselaw concerning
3
In Boyles, the plaintiff, a college student, brought an
action against her sexual partner for negligent infliction of
emotional distress she suffered due to various people seeing a
videotape of her and Boyles engaged in sexual intercourse, filmed
by Boyles. Allegedly, ten of Boyles's friends were shown the
tape, and gossip about it spread to Kerr's friends as well as
other students at the university she attended.
20
duties derived from special business relationships. Boyles, id.,
855 S.W.2d at 597. See Stuart v. Western Union Tel. Co., 66 Tex.
580, 18 S.W. 351 (1885) (failure of telegraph company to timely
deliver death message); Billings v. Atkinson, 489 S.W.2d 858
(Tex.1973) (telephone company employee's invasion of a service
subscriber's privacy); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904
(Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref'd n.r.e.)
(funeral home's negligent handling of a corpse).
Roche's attempts to make a legal mountain out of the Boyles
molehill notwithstanding, all Boyles holds is that Texas law does
not "impose legal duties based solely on a personal relationship,
even an intimate one." Boyles, 855 S.W.2d at 600 (emphasis added).
Roche's legal obligation to use due, reasonable care in testing
Willis's urine sample for drug use arises out of the assumption for
consideration by the testing laboratory of the task of
drug-testing, and the fact that it is clearly foreseeable that if
this testing task is misconducted (no matter how advanced the
general test technology so administered might be) the testee will
sustain cognizable injury. This narrow duty is fundamentally
dissimilar from the amorphous duty not to negligently inflict
emotional distress at issue in and rejected by the Texas Supreme
Court in Boyles.
D. DOES WILLIS HAVE A CAUSE OF ACTION AGAINST ROCHE FOR DEFAMATION?
Finally, Willis has sought damages from Roche for the
latter's publication of the false positive test results to Willis's
employer. Roche has responded that Willis signed a consent form,
21
granting permission to release the results of such tests to Du
Pont. The form reads: "I furthermore give (outside laboratory) my
permission to release the results of such tests to the company."
(Record Vol. 1., p. 252).
However, in Texas, a purported consent and waiver that does
not expressly release liability for negligence does not constitute
an effective release from liability for negligence. Texas has
adopted the "express-negligence" doctrine, which requires any
purported indemnity agreement to expressly state that it applies to
"negligence" in order to be deemed effective as a release for
negligence liability. See, e.g., Doe v. SmithKline Beecham, 855
S.W.2d 248 (Tex.App.—Austin 1993).4 We thus hold that the form at
issue in this case is insufficient to release Roche from liability
for publication of negligently obtained false positive results.
Still, the district court (citing Boze v. Branstetter, 912
F.2d 801, 806 (5th Cir.1990)) also decided that, even without a
valid consent and in light of a "defamatory" report, Roche's
defamatory publication was nonetheless qualifiedly privileged. The
district court's analysis in this respect follows:
Th[is] privilege advances "the need for free
communication of information to protect business and personal
4
The waiver at issue in SmithKline contained the following
exculpatory language, which the SmithKline court holds inadequate
to shield SmithKline from liability for its negligence—in light
of the "express-negligence" doctrine: "I consent to the release
of the drug screen results to authorized Quaker representatives
for appropriate review. I release and agree to hold harmless
Quaker, its employees and its agents, from any liability to me
based on the results of the drug screening." Doe v. SmithKline
Beecham, 855 S.W.2d 248, 253 (Tex.App.—Austin 1993) (Carroll,
C.J.) (writ of error granted Feb. 2, 1994).
22
interests." Gaines v. CUNA Mut. Ins. Soc'y, 681 F.2d 982, 986
(5th Cir.1982). In order for the moving party to prevail on
a summary judgment asserting this privilege, however, an
absence of malice must be shown. Houston v. Grocers Supply
Co., Inc., 625 S.W.2d [798] at 801 [Tex.App.1981].
The only manifestation of malice established by plaintiff
stems from the very fact that the test results were false.
The law is clear, " "[m]alice is not implied or presumed from
the mere fact of the publication, nor may it be inferred alone
from the character or vehemence of the language used, nor
found from the falsity of the statement alone.' " Houston
Belt & Terminal Ry. Co. v. Wherry, 548 S.W.2d [743] at 754
[Tex.Civ.App.1976] (citations omitted). Plaintiff has failed
to demonstrate express malice or implied malice.
Record Vol. 1., p. 424. We agree with this reasoning and
conclusion by the district court; and hold therefore that the
trial court was correct in granting Roche's motion for summary
judgment on Willis's defamation claim.
V. CONCLUSION AND ORDER
For the foregoing reasons: the portion of the district
court's Memorandum Opinion and Order granting summary judgment to
Roche on Willis's negligence-in-testing claim is REVERSED and
REMANDED for further proceedings consistent with this Opinion; and
the portion of the district court's Memorandum Opinion and Order
granting summary judgment to Roche on Willis's defamation claim is
AFFIRMED.
It is Hereby So Ordered.
E. GRADY JOLLY, Circuit Judge, dissenting:
As Judge Parker's opinion properly notes, the bottom-line
question in the present case is whether the district court erred in
granting the defendant's motion for summary judgment. After a
careful review of the applicable law and the relevant parts of the
23
record, I am convinced that the trial court committed no error.
Because the summary judgment evidence produced by Willis was
insufficient to support a jury finding of negligence on the part of
Roche, I respectfully dissent.
The initial—and fundamental—problem with the majority opinion
is that it views the district court's grant of summary judgment
through the old and scratched lens of ancient summary judgment law
as it stood before the Supreme Court's 1986 summary judgment
trilogy, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). Although the motion for summary
judgment was harshly viewed and strongly discouraged prior to
1986,1 the Supreme Court made clear in Celotex that summary
judgment should not be regarded as a disfavored procedural
shortcut: Summary judgment is "an integral part of the Federal
Rules ... which are designed "to secure the just, speedy and
inexpensive determination of every action.' " Celotex, 477 U.S. at
327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.Proc. 1).
Although the majority begrudgingly pays muffled lip service to
the current law on summary judgment, it makes clear its disfavor
for such principles at the very beginning of its opinion,
intimating that we should be particularly wary of this grant of
1
1 STEVEN A. CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW §
5.04, at 5-26 (2d ed. 1992).
24
summary judgment. First, the majority states that courts must be
careful not to " "use summary judgment as a "catch penny
contrivance." ' " See slip op. at 4542. This particular fear of
summary judgment finds its roots in a 1940 Fifth Circuit case.2
Furthermore, the primary and more recent case on which the majority
relies, Fontenot v. Upjohn, used this language specifically to
emphasize that courts should not be so suspicious of summary
judgment—the "early disposition of baseless claims and defenses is
insistent and well founded." Fontenot, 780 F.2d at 1197. After
the trilogy, it is clear that "[o]ld dicta urging unusual restraint
are no longer valid." 1 CHILDRESS & DAVIS, supra note 1, § 5.04, at
5-48.
Next, the majority states that summary judgment should not be
applied in negligence cases. See slip op. at 4544. Again,
however, its support for this dubious overstatement is tenuous:
The Wright & Miller citation noted by the majority in turn cites a
North Carolina state court case as its authority,3 and the
majority's other citation, Gauck v. Meleski,4 dates back to 1965.
Furthermore, even though we repeated this sentiment in a more
2
The majority cites Fontenot v. Upjohn Co., 780 F.2d 1190,
1197 (5th Cir.1986) (quoting William W. Schwarzer, Summary
Judgment Under the Federal Rules: Defining Genuine Issues of
Material Fact, 99 F.R.D. 465, 466 (1984), which in turn quotes
Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940)).
3
See 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2729 (Supp.1993) (citing Smith v. Selco
Products, Inc., 96 N.C.App. 151, 385 S.E.2d 173, 175 (1989)).
4
346 F.2d 433, 437 (5th Cir.1965).
25
recent case, Lavespere v. Niagara Mach. & Tool Works, Inc.,5 we
went on to uphold the district court's grant of summary judgment in
that case, noting that the determinative question is whether there
is sufficient evidence to support a jury finding in favor of the
nonmovant. If there is insufficient evidence, a jury can decide no
question, no matter how "inherently normative" the question may be.
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d at 178-79;
see also Fontenot, 780 F.2d at 1196 (summary judgment was
appropriate in defective design case).
Ultimately, the majority concludes that Willis has "called
into question" whether Roche was negligent in its testing of
Willis's urine sample. Slip op. at 4547. Again, however, the
majority's focus is outdated. There is no doubt that some
questions do remain unresolved in the scant record before us, but,
in the light of the summary judgment law applicable today, those
questions are not the question.6 After Celotex, the question is
whether the parties to the suit have satisfied their respective
evidentiary burdens. In the present case, the answer is no:
Willis simply did not carry his burden.
5
910 F.2d 167, 178-79 (5th Cir.1990), cert. denied, --- U.S.
----, 114 S. Ct. 171, 126 L. Ed. 2d 131 (1993).
6
"[T]he Court now frames the primary issue in summary
judgment motions not as whether enough evidence exists to raise
an inference to be resolved at trial, but whether sufficient
evidence in the pretrial record exists to allow the plaintiff to
win at trial or to survive a motion for directed verdict, were
one based on the facts in the pretrial record. That is a higher
threshold for nonmovants to survive a summary judgment motion
than was expressed in prior Supreme Court cases." 1 Childress &
Davis, supra note 1, § 5.04, at 5-32.
26
In Lavespere we stated that a movant for summary judgment can
satisfy his initial burden by "submit[ting] evidentiary documents
that negate the existence of some material element of the nonmoving
party's claim or defense." Lavespere, 910 F.2d at 178. In the
present case, Roche produced summary judgment evidence, in the form
of an expert affidavit, that specifically and completely responded
to, and negated every allegation set out in Willis's complaint.
Thus, Roche made a prima facia showing that it was entitled to
summary judgment, and the summary judgment burden then shifted to
Willis to show that a genuine, material issue of fact remained for
trial.
In order to carry this responsive burden, Willis was required
to go beyond his pleadings and produce evidence that would have
supported a reasonable jury in returning a verdict in his favor.
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Willis's evidence
should have contained "specific facts,"7 because Anderson provides
that if the pretrial evidence "is merely colorable" or "is not
significantly probative," summary judgment should be granted.
Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. When the
nonmoving plaintiff comes forth with unspecific, insufficient
evidence, the court must grant the summary judgment because, in
that case, only an irrational trier of fact could return a verdict
in the plaintiff's favor. Matsushita, 475 U.S. at 587, 106 S.Ct.
at 1356 ("Where the record taken as a whole could not lead a
7
Fed.R.Civ.Proc. 56(e); see Matsushita, 475 U.S. at 587,
106 S.Ct. at 1356; Lavespere, 910 F.2d at 178.
27
rational trier of fact to find for the nonmoving party, there is no
"genuine issue for trial.' " (emphasis added)).
In an attempt to meet his burden, Willis produced the
following evidence:
1. Roche discovered a potential problem with methodology used
to confirm positive tests for amphetamines;
2. it appeared that this problem was isolated to Roche and to
the confirmation of amphetamines; and
3. it appeared the problem began in June 1990.
Judge Parker states that this evidence, "read in the light most
favorable to Willis ... suggests that Roche knew or should have
known of a problem with its methodology as early as June 1990."
Slip op. at 4547. Willis's evidence, however, "suggests" no such
conclusion, much less offers and evidentiary proof, either direct
or circumstantial.8 In all due respect, no rational court would
hold Roche liable in negligence based on this scant and
disconnected evidence.
As the majority has noted, it is a "longstanding, bedrock
summary judgment principle[ ]" that we must construe the evidence
presented, and any reasonable inferences therefrom, in the light
most favorable to the nonmovant. This standard, however, does not
allow, much less require, that we draw strained and unreasonable
inferences in favor of the nonmovant. In the present case, in
8
Nowhere in Willis's briefs does he argue that Roche should
have known of a problem with its methodology as early as June
1990, which is the theory of negligence advanced by majority
opinion. Thus, the majority not only supplies speculative
evidence to fill the evidentiary gaps left by Willis, but it
supplies his theory of negligence as well. The wonder is whether
there remains any role for Willis's lawyer.
28
order for a jury to return a verdict in favor of Willis, it would
either have to make an unsupported leap in logic or rely on
speculative evidence that certainly is not included in the summary
judgment record. Thus, based on the record evidence standing
alone, no reasonable juror could conclude that Roche failed to use
due care.
The essence of Willis's failure is that his evidence simply
fails to go far enough to establish negligence. In other words,
Willis's summary judgment evidence may, to be sure, leave open the
possibility that Roche was negligent, i.e., nothing in the evidence
forecloses the possibility that Roche should have known that its
testing methodology was unreliable. But Willis was required to do
"more than simply show that there is some metaphysical doubt as to
the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at
1356. A "merely colorable" claim is not enough. Anderson, 477 at
249-50, 106 S. Ct. at 2511. Instead, Rule 56 demands that Willis
set out "specific facts" pointing to some act of negligence on the
part of Roche. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356;
Lavespere, 910 F.2d at 178.
Willis, however, came forth with no such minimally required
evidence. Willis identified no single negligent act of Roche or of
anyone else. Instead, the extent of Willis's evidence was that
anomalies had resulted from Roche's drug testing procedures, that
Roche had discovered the problem, and that Roche had its NIDA
certification revoked because of excessive false-positive results.
Willis's evidence detailing the problem that Roche discovered
29
(i.e., that the chemical agent CHFB reacted with ephedrine and
pseudoephedrine to produce a false positive result) may well prove
the cause of his anomalous drug-test results, but it in no way
supports a finding of negligence on the part of Roche.9
In sum, I find that the majority has taken this weak,
factually-unsupported case, and has back filled the facts and
engineered the applicable law at every turn in order to reverse the
district court's judgment and to remand the case. Even the legal
basis for this negligence claim is anything but settled under Texas
law.
As it was presented in the district court, and as it is now
presented to us, this is a meritless case that was wholly
appropriate for summary judgment. I would affirm.
9
Willis's failure in this regard presents yet another basis
for affirming the district court's grant of summary judgment on
Willis's defamation claim. See slip op. at 4550-51. Willis's
evidence will not support an essential element of his defamation
claim—that is, Willis cannot show that Roche published
information that it should have known was false. See Durham v.
Cannan Communications, Inc., 645 S.W.2d 845 (Tex.App.—Amarillo
1982, writ dism'd).
30