Opinion
2020 CA 0071
12-30-2020
Brady BASS v. DISA GLOBAL SOLUTIONS, INC., Convenient Care, L.L.C. d/b/a Total Occupational Medicine, Randy B. Barnett, D.O., and Psychemedics Corporation
Pamela W. Carter, Sarah N. Cancienne, Francine M. Giugno, New Orleans, Louisiana, Counsel for Appellant Plaintiff—Brady Bass George Hardy Robinson, Jr., Lafayette, Louisiana and Holly H. Williamson, W. Michael Reed, Houston, Texas, COUNSEL FOR APPELLEES DEFENDANTS—DISA Global Solutions, Inc. and Randy B. Barnett Ann M. Halphen, L. Adam Thames, Baton Rouge, Louisiana, Counsel for Appellee Defendant—Convenient Care, L.L.C. d/b/a Total Occupational Medicine Charles H. Hollis, Allison A. Fish, New Orleans, Louisiana, Counsel for Appellee Defendant—Psychemedics Corporation
Pamela W. Carter, Sarah N. Cancienne, Francine M. Giugno, New Orleans, Louisiana, Counsel for Appellant Plaintiff—Brady Bass
George Hardy Robinson, Jr., Lafayette, Louisiana and Holly H. Williamson, W. Michael Reed, Houston, Texas, COUNSEL FOR APPELLEES DEFENDANTS—DISA Global Solutions, Inc. and Randy B. Barnett
Ann M. Halphen, L. Adam Thames, Baton Rouge, Louisiana, Counsel for Appellee Defendant—Convenient Care, L.L.C. d/b/a Total Occupational Medicine
Charles H. Hollis, Allison A. Fish, New Orleans, Louisiana, Counsel for Appellee Defendant—Psychemedics Corporation
Before: Whipple, C.J., Welch, and Chutz, JJ.
WELCH, J. The plaintiff, Brady Bass, appeals a trial court judgment granting the defendant's, Psychemedics Corporation ("Psychemedics"), motion for summary judgment and dismissing all claims against it. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Bass—employed in the oil and gas industry as an onshore laborer by Coastal Corrosion Control, Inc. ("Coastal"), a pipeline integrity company—averred that on January 16, 2017, Coastal directed him to present at Convenient Care, L.L.C. d/b/a Total Occupational Medicine ("Total") for the administration of a random employment-related urine and hair sample drug test. Bass also underwent a breathalyzer test for alcohol use. The results of Bass's breathalyzer and urine tests were negative; however, Bass's hair sample test returned a positive result for marijuana use. Based on the positive drug test result, Coastal removed Bass from his onshore laborer position and moved him to a warehouse position, working less hours.
As of October 2018, Coastal employed Bass as a technician.
On September 18, 2017, Bass filed a petition for damages against defendants Psychemedics, DISA Global Solutions, Inc. ("DISA"), Dr. Randy B. Barnett, D.O., and Total. Bass averred that the defendants negligently mishandled his hair sample and conducted the drug test in an unsanitary and contaminated environment, which he alleged resulted in a false positive drug test result for marijuana. Bass contended that his hair sample was collected by Total under the direction of DISA-trained and managed employees and that the Total employees then sent the hair sample to Psychemedics for chemical analysis. Bass further alleged that the defendants defamed him by reporting and publicizing the alleged false positive drug test result to national drug testing databases, which prevented him from finding employment and caused him humiliation and embarrassment. Bass sought damages resulting from the alleged false positive hair sample drug test including, but not limited to: lost employment, lost wages, lost benefits, loss of enjoyment of life, defamation, and emotional pain and suffering.
Dr. Barnett filed a declinatory exception raising the objection of lack of personal jurisdiction, which the trial court granted, dismissing all of Bass's claims against Dr. Barnett. Subsequently, Bass filed a first amended petition for damages naming Dr. Jerome Cooper, D.O., as defendant.
Bass thereafter filed a first amended petition and alleged that all the defendants were jointly liable to him for "all of the damages resulting from the negligently administered drug testing and false positive hair drug testing." Specifically, Bass alleged that Psychemedics negligently tested his hair specimen and falsely reported the test result as positive because the result was below DISA's approved cut-off levels. Additionally, Bass asserted that Psychemedics defamed him by publishing the test results in its VECTOR database, a national database that Bass alleged sends alerts to contractors and employers in his occupational field concerning employees that are not in compliance with standard industry substance abuse policies. Bass further alleged that Psychemedics "negligently tested a hair sample collected and transported in violation" of the Substance Abuse and Mental Health Services Administration ("SAMHSA"), National Institute on Drug Abuse, and Federal Workplace Guidelines, and that Psychemedics's alleged violation of these state statutes and federal regulations constituted acts of negligence per se.
Through this amended petition, Bass sought to substitute the amended petition in place of the original petition.
Bass further alleged that Psychemedics's publishing of his test results to VECTOR constituted a violation of the Health Insurance Portability and Accountability Act ("HIPAA"), contending that his drug test results were "protected health information" under 45 C.F.R. § 160.103.
SAMHSA is a government agency within the U.S. Department of Health and Human Services ("HHS") that is responsible for oversight of HHS-certified laboratories operating under the mandatory guidelines for federal workplace drug testing programs.
Bass further averred that Psychemedics trained and certified Total's specimen collectors "on the methods, protocols, and procedures for obtaining, gathering, and/or collecting specimen[s] for drug testing[.]" According to Bass, he requested to have a second sample taken and tested by an independent laboratory "to refute the original drug test," but was denied the opportunity. Thus, on January 27, 2017, he submitted a second hair and urine sample to J&B Industries in order "to prove his innocence." This second sample was tested by Omega Laboratories and returned a negative result for any drugs.
After answering Bass's first amended petition, Psychemedics filed a motion for summary judgment, seeking dismissal of all of Bass's claims against it. Psychemedics argued that summary judgment was proper because Bass could not bring forth any evidence to prove a negligence claim or a claim for any other unlawful conduct against Psychemedics "with respect to the drug testing procedures used in testing his hair sample[.]" Bass opposed Psychemedics's motion for summary judgment, contending that Psychemedics breached its duty to properly test his hair sample with the appropriate cut-off levels and to not publish false and defamatory statements about Bass in its VECTOR database.
Following a hearing on September 9, 2019, the trial court orally granted Psychemedics's motion for summary judgment. Thereafter, on October 17, 2019, the trial court signed a judgment in accordance with its oral ruling, granting summary judgment in favor of Psychemedics and dismissing all of Bass's claims against Psychemedics, with prejudice. Bass devolutively appealed the trial court's October 17, 2019 judgment, designating portions of the record on appeal.
STANDARD OF REVIEW
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553 (La. App. 1st Cir. 7/18/18), 255 So. 3d 16, 21, writ denied, 2018-1397 (La. 12/3/18), 257 So. 3d 194. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover may meet this burden by filing supporting documentary evidence consisting of pleadings, a memorandum, affidavits, depositions, answers to interrogatories, certified medical records, stipulations, and admissions with the motion for summary judgment. See La. C.C.P. art. 966(A)(4). The mover's supporting documentary evidence must prove the essential facts necessary to carry the mover's burden. Jenkins v. Hernandez, 2019-0874 (La. App. 1st Cir. 6/3/20), 305 So. 3d 365, 369–71, writ denied, 2020-00835 (La. 10/20/20), 303 So. 3d 315. Thus, in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Crockerham v. Louisiana Med. Mut. Ins. Co., 2017-1590 (La. App. 1st Cir. 6/21/18), 255 So. 3d 604, 608.
Once the motion for summary judgment has been properly supported by the moving party (i.e., the mover has established the material facts through its supporting documentary evidence), and the mover has made a prima facie showing that the motion for summary judgment should be granted, the mover does not have to negate all of the essential elements of the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). See also Babin v. Winn-Dixie Louisiana. Inc., 2000-0078 (La. 6/30/00), 764 So. 2d 37, 39 ; TD Auto Fin., LLC v. Myles, 2019-498 (La. App. 3rd Cir. 1/15/20), 289 So. 3d 108, 112. If the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover need only point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). See also La. C.C.P. art. 966, Comments--2015, Comment (j). The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, that he will be able to satisfy his evidentiary burden of proof at trial: prove the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). If the non-moving party fails to produce sufficient factual support in its opposition sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, La. C.C.P. art. 966(D)(1) mandates the granting of the motion for summary judgment. Babin, 764 So. 2d at 40.
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Janney v. Pearce, 2009-2103 (La. App. 1st Cir. 5/7/10), 40 So. 3d 285, 289, writ denied, 2010-1356 (La. 9/24/10), 45 So. 3d 1078. Simply showing the presence of disputed facts is insufficient if there is no legal issue presented by those contested facts. See Franklin Credit Mgmt. Corp. v. Gray, 2007-1433 (La. App. 4th Cir. 1/14/09), 2 So. 3d 598, 603, writ denied, 2009-0476 (La. 4/17/09), 6 So. 3d 795. A "genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. A fact is "material" when its existence or nonexistence may be essential to a plaintiff's cause of action under the applicable theory of recovery. Kasem v. State Farm Fire & Cas. Co., 2016-0217 (La. App. 1st Cir. 2/10/17), 212 So. 3d 6, 13.
Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Georgia-Pacific Consumer Operations, LLC, 255 So. 3d at 22. Bass's claims against Psychemedics are based in tort; specifically, upon Psychemedics's alleged negligence, negligence per se, and defamation of Bass. In his first assignment of error, Bass argues that the trial court erred by finding no genuine issues of material fact.
NEGLIGENCE
Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Brewer v. J.B. Hunt Transport, Inc., 2009-1408, 2009-1428 (La. 3/16/10), 35 So. 3d 230, 240. In order for liability to attach under the duty-risk analysis, the plaintiff must prove the following separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard of care (the breach of the duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs’ injuries (the cause-in-fact-element); (4) the defendant's substandard conduct was a legal cause of the plaintiff injuries (the scope of the liability or scope of the protection element); and (5) actual damages (the damages element). Jenkins, 305 So. 3d at 371–72.
To carry its burden on summary judgment as the mover, Psychemedics must first establish the material facts through its supporting documentary evidence. Because Psychemedics will not bear the burden of proof at trial on Bass's negligence cause of action, Psychemedics does not have to negate all of the essential elements of Bass's negligence cause of action—it has only to point out the absence of factual support for one or more of the elements essential to Bass's negligence cause of action. See La. C.C.P. art. 966(D)(1). Accordingly, Psychemedics argues that Bass cannot produce factual support for at least two essential elements of his negligence claim: that Psychemedics failed to conform it s conduct to the appropriate standard of care (the breach of the duty element); and that Psychemedics's alleged substandard conduct caused a false-positive result in a hair sample that Bass contends should have tested negative for marijuana (the cause-in-fact-element).
Generally, under Louisiana law, a person's duty toward another can be simply stated as the obligation to conform to the standard of conduct of an average reasonable man under same or similar circumstances. Elliott v. Laboratory Specialists, Inc., 588 So. 2d 175, 176 (La. App. 5th Cir. 1991), writ denied, 592 So. 2d 415 (La. 1992). For Psychemedics to have breached any duty, first one must be owed; and secondly, Psychemedics must have acted unreasonably to cause a false-positive result in Bass's hair sample. See Elliott, 588 So. 2d at 176.
In support of its motion, Psychemedics submitted the expert affidavit of Dr. Ryan Paulsen, a document custodian and senior analytical chemist for mass spectrometry at Psychemedics. Dr. Paulsen testified as to Psychemedics's FDA-approved drug testing procedures and methodology, and that the chain of custody for Bass's hair sample was not compromised. Dr. Paulsen also stated that Psychemedics's laboratory, which has the largest and oldest hair-testing program of any laboratory in North America, is licensed or certified to perform forensic toxicology drug testing by HHS, Centers for Medicare and Medicaid Services, Clinical Laboratory Improvement Amendments, and the College of American Pathologists, in addition to various other certifications and licensures. Dr. Paulsen indicated that "Psychemedics continues to serve as the reference laboratory for proficiency testing conducted by the Society of Hair Testing," and that "Psychemedics has received United States and foreign patent protection for its hair tests and processes."
Dr. Paulsen explained that Psychemedics utilizes a two-part, FDA-approved hair sample drug test for marijuana detection. First, a hair sample is analyzed for the presence of cannabinoids through a screening process using an immunoassay test. If marijuana is detected, the tested hair sample is a "presumptive positive," and a second test is performed on the hair sample for confirmation of the initial positive test result. For the confirmation test, the sample goes through a multi-wash procedure to rule out external contaminants, and is tested using Gas Chromatography /Mass Spectrometry /Mass Spectrometry ("GC/MS/MS"). According to Dr. Paulsen, when this wash procedure is used, persons who legitimately come into contact with drugs on a regular basis cannot have false positives due to contamination. In such instances, the drug test will only return a positive result if Carboxy-THC, a metabolite of marijuana, is found at or above a specified cut-off level. Dr. Paulsen indicated that Carboxy-THC is a metabolic marker produced in the human body after marijuana is ingested and is not found in marijuana or marijuana smoke.
Dr. Paulsen testified that typically, as in Bass's case, Psychemedics does not collect the hair sample. Instead, the hair sample is collected by a separate and distinct organization, typically selected by the employer in the case of an employment-related drug test. During the collection process, the collector and the donor complete a number of forms documenting the collection process, including identifying the donor ("Custody and Control Form") and filling out the Sample Acquisition Card ("SAC"). The collector then collects a hair sample and places the sample in an aluminum foil packet that is folded and placed in the SAC envelope. The SAC envelope is sealed with a tamper-evident plastic integrity seal and is initialed and dated by the collector. The donor initials a statement on the SAC indicating that the sample was taken from him. The SAC is then placed in a tamper-evidence plastic pouch together with the Custody and Control Form, and the pouch is sealed and initialed by the donor. The collector forwards the samples to Psychemedics by overnight carriers.
Dr. Paulsen confirmed that Bass's hair sample was collected by an employee of Total. Psychemedics received Bass's hair sample from Total on January 17, 2017. Following the industry standard protocols, Psychemedics confirmed that the tamper-proof seal on the plastic pouch containing Bass's sample was intact. Psychemedics then unsealed the plastic pouch and reviewed the Custody and Control Form. Psychemedics confirmed that the initials on the tamper-proof seal matched the initials on the SAC and Custody and Control Form. Psychemedics also confirmed that the SAC and Custody and Control Form had the same barcode number. Psychemedics concluded that the chain of custody was intact and proper.
Dr. Paulsen stated that a portion of Bass's sample was screened using the immunoassay test and determined to be presumptive positive for marijuana. Accordingly, another portion of Bass's sample was subjected to the vigorous wash cycle and subject to confirmatory testing by GC/MS/MS, which confirmed the presence of marijuana. After Bass was notified of his positive drug test by DISA, he requested that his January 16, 2017 sample be re-tested. At DISA's request, Psychemedics sent a portion of Bass's January 16, 2017 sample to Omega Labs for retesting on February 2, 2017. Omega Labs independently tested Bass's sample and reported that the sample was positive for marijuana. Psychemedics also conducted its own internal reconfirmation testing, and Bass's sample again tested positive for marijuana.
Our de novo review of the evidence submitted by Psychemedics in support of its motion for summary judgment demonstrates that Psychemedics established, through the expert testimony of its forensic toxicologist, the industry standard for the drug testing of hair samples; specifically, the two-part FDA-approved drug test for marijuana detection. Psychemedics further established that it followed the industry standard for drug testing Bass's hair sample it received on January 17, 2017, from Total. Accordingly, the burden shifted to Bass to produce factual support that he will be able to satisfy his evidentiary burden of proof at trial on his negligence cause of action: that Psychemedics failed to conform its conduct to the appropriate standard of care (breach of the duty element); and that Psychemedics's alleged substandard conduct in testing his hair sample caused a false-positive result (the cause in fact element). See La. C.C.P. art. 966(D)(1).
In opposition, Bass argues that genuine issues of material fact exist as to whether Psychemedics acted negligently in collecting and testing his hair sample; whether Psychemedics breached its duty owed to Bass to ensure that his hair sample was collected without contamination, by a trained collector, with reliable analysis, and with an error-free report; and as to Psychemedics's hair sample drug testing methodology. Specifically, Bass contends that genuine issues of material fact exist as to whether the positive hair drug test belonged to him or someone else; whether missing donor initials destroyed the chain of custody and rendered the hair specimen invalid; and whether the hair sample collected by the Total employee was contaminated.
The evidence Bass submitted in support of his opposition demonstrates that on January 16, 2017, Bass provided a hair sample to Total, which Total collected and packaged for shipping to Psychemedics for drug testing. Bass signed the Psychemedics Custody and Control Form and initialed the SAC. Psychemedics's expert, Dr. Paulsen, testified that the chain of custody in the handling of Bass's hair sample taken on January 16, 2017 was unbroken and that there was no misidentification or cross-contamination of his sample with any others at the Psychemedics's laboratory. Bass also submitted evidence to demonstrate that his initials were missing from his hair sample. However, this evidence actually demonstrates that his initials were missing from his hair sample that was transferred by Psychemedics to Omega on February 2, 2017, after Bass requested, through DISA, that his January 16, 2017 hair sample be retested by a different lab. Bass obviously would not have been present when his hair sample was transferred from Psychemedics's California lab to Omega's lab. Accordingly, Bass has presented no evidence to create a genuine issue of material fact as to whether his initials were missing from his January 16, 2017 hair sample, and whether such omission destroyed the chain of custody and rendered his hair specimen invalid. Furthermore, Bass has presented no evidence of a genuine issue of material fact that the positive hair drug test results belonged to him versus someone else.
Psychemedics objected to eleven exhibits offered by Bass in opposition—exhibits 2, 5, 6, 7, 12, 14, 19, 20, 21, 24, and 26—in its timely-filed reply memorandum in accordance with La. C.C.P. art. 966(D)(2). The trial court denied Psychemedics's objection as to exhibit 2—Bass's petition and first amended petition for damages. Under La. C.C.P. art. 966(A)(4), pleadings are included in the list of documents that may be filed in support of or in opposition to a motion for summary judgment. The trial court sustained the remainder of Psychemedics's objections and did not consider exhibits 5, 6, 7, 12, 14, 19, 20, 21, 24, and 26 in deciding summary judgment. No party raised the trial court's exclusion of exhibits 5, 6, 7, 12, 14, 19, 20, 21, 24, and 26 as an issue on appeal; accordingly, we will not consider those exhibits in our de novo review of the evidence.
Furthermore, although several of Bass's other exhibits do not appear to constitute competent evidence for purposes of summary judgment, Psychemedics did not object to those exhibits’ admissibility. Under La. C.C.P. art. 966(D)(2), the court must consider non-objected to evidence. See Mariakis v. N. Oaks Health Sys. , 2018-0165 (La. App. 1st Cir. 9/21/18), 258 So. 3d 88, 96.
Bass testified in his deposition that while it was an employee of Total, not Psychemedics, who collected his hair sample, it was Psychemedics that provided the online training course to the Total employee for the collection of hair samples to be sent to its California lab for drug testing. Psychemedics contends, however, that it is not responsible for the actions of an employee of an independent, third-party company like Total, over which it may exercise no control. The general rule under Louisiana law is that an employer is not liable for the torts committed by an independent contractor in the course of performing his contractual duties; however, there is an equally well-established exception to that rule in that an employer may be liable if it maintains the right to supervise or control the activity in question. Fonseca v. City Air of Louisiana, LLC, 2015-1848 (La. App. 1st Cir. 6/3/16), 196 So. 3d 82, 87. See also Hughes v. Goodreau, 2001-2107 (La. App. 1st Cir. 12/31/02), 836 So. 2d 649, 655-59, writ denied, 2003-0232 (La. 4/21/03), 841 So. 2d 793. In his deposition, when asked, "[d]o you have any information that Psychemedics contaminated or mislabeled your sample?", Bass responded, "[n]o, sir." Bass has not provided any evidence to create a genuine issue of material fact as to whether Psychemedics exercised control over Total employees regarding the hair sample drug testing collection process. Because Psychemedics has no part of the collection of hair samples, there is no evidence to prove the existence of a genuine issue of material fact as to whether Psychemedics contaminated Bass's hair sample.
Bass also argues that the negative urine test he received from Omega Labs has greater validity and accuracy than the positive hair sample test he received from Psychemedics. Bass offered the affidavits Robert Swotinsky, M.D., and Richard Parent, Ph.D., DABT, FATS, RAC, ERT. Dr. Swotinsky, a board-certified occupational medicine physician and a certified medical review officer who interprets drug test results for hair and urine samples, stated that the "use of hair for workplace drug testing remains controversial" and that there "is no industry standard for hair drug testing." Dr. Swotinsky opined that "urine [is] the specimen of choice, the gold standard, for workplace drug testing." Dr. Parent, a board-certified toxicologist, stated that "the reliability of hair testing as determinate of marijuana use is in question," and that there "is a lack of consensus on hair testing within the scientific community regarding the reliability of hair testing because of concerns with contamination and passive exposure."
Bass also offered the expert affidavit and report of J. Michael Walsh, Ph.D. (exhibit 6). Psychemedics objected to exhibit 6 in its timely-filed reply memorandum in accordance with La. C.C.P. art. 966(D). The trial court sustained the objection and did not consider exhibit 6 in deciding summary judgment. No party raised the trial court's exclusion of exhibit 6 as an issue on appeal; accordingly, we will not consider that exhibit in our de novo review of the evidence.
However, neither Dr. Swotinsky nor Dr. Parent identified an industry standard for drug testing hair samples, nor did the experts offer any opinions that Psychemedics breached that standard. Likewise, the experts did not denounce Psychemedics's hair sample drug testing procedure, but offered general opinions as to hair drug testing that were void of facts to establish their conclusions. Bass's expert affidavits do not raise any genuine issues of material fact and are insufficient to rebut Psychemedics's evidence establishing the industry procedure for hair sample drug testing, its accuracy, reliability, and specifically, whether Psychemedics breached the industry standard in the testing of Bass's hair sample.
Furthermore, we note that the results of a different lab test on a different type of biological sample does not create a genuine issue of material fact as to whether the results of Psychemedics's thrice-confirmed positive hair sample drug test results were inaccurate due to any negligence on Psychemedics's part. Simply showing the presence of disputed or conflicting facts (here, a negative urine test vs. a positive hair sample test) is insufficient if there is no legal issue presented by those contested facts. See Franklin Credit Mgmt. Corp., 2 So. 3d at 603.
Based on the foregoing, we find that Bass has presented no evidence to support his claim that Psychemedics acted negligently in the receiving and handling of his hair sample for employment-related drug testing. Additionally, Bass has presented no evidence to show that Psychemedics was negligent in the actual drug testing conducted on his January 16, 2017 hair sample. For these reasons, we affirm the portion of the trial court's judgment granting Psychemedics's motion for summary judgment and dismissing Bass's negligence claims.
NEGLIGENCE PER SE
Bass additionally asserts claims against Psychemedics under the doctrine of negligence per se ; specifically, Bass raised claims that Psychemedics violated Louisiana's drug-testing statute ("LDTS"), La. R.S. 49:1001, et seq. ; Department of Transportation ("DOT") regulations; Health Insurance Portability and Accountability Act ("HIPAA") guidelines; SAMHSA guidelines; and Pipeline and Hazardous Materials Safety Administration ("PHMSA") guidelines.
The doctrine of negligence per se has been rejected in Louisiana. Faucheaux v. Terrebonne Consol. Govt., 615 So. 2d 289, 292 (La. 1993). The violation of a statute or regulation does not automatically, in and of itself, impose civil liability. Instead, civil liability is imposed only if the act in violation of the statute is the legal cause of damage to the other. The courts conduct the negligence duty-risk analysis to determine whether liability arises as a result of a statutory violation. Robinson v. Wayne and Beverly Papania and Pyrenees Investments, LLC, 2015-1354 (La. App. 1st Cir. 10/31/16), 207 So. 3d 566, 576, writ denied, 2016-2113 (La. 3/13/17), 216 So. 3d 808.
Psychemedics contends that Bass's negligence per se claims fail as a matter of law. Psychemedics argues that LDTS expressly states that it does not apply to "any person, firm, or corporation engaged or employed in the exploration, drilling, or production of oil or gas in Louisiana or its territorial waters." See La. R.S. 49:1002(H). Psychemedics points out that in his deposition, Bass testified that his employer, Coastal, was a pipeline integrity company that takes readings on oil and gas pipelines related to the production of oil in Louisiana. Accordingly, Psychemedics maintains that LDTS does not apply to Bass and thus, those claims fail as a matter of law. As to Bass's claims under DOT regulations, HIPAA, SAMHSA, and PHMSA, Psychemedics relies on the applicable statutes and case law to maintain that those regulations do not apply herein. Psychemedics did not violate those statutes and regulations. Psychemedics argues that PHMSA's drug testing regulations only apply to "operators of pipeline facilities," not drug-testing laboratories. See 49 C.F.R. § 199.1. Additionally, Psychemedics points out that SAMHSA only applies to urine sample drug testing of federal employees, that DOT drug-testing regulations only apply to urine sample drug testing, and that there is no private cause of action under HIPAA.
Based on our de novo review of the law and evidence, we find that LDTS does not apply to Bass's claims against Psychemedics. LDTS specifically states that it "shall not apply to any person, firm, or corporation engaged or employed in the exploration, drilling, or production of oil or gas in Louisiana or its territorial waters." La. R.S. 49:1002(H). In his deposition, Bass testified that his former employer, Coastal, was a pipeline integrity company that takes readings on oil and gas pipelines related to the production of oil in Louisiana. Because Coastal is a "firm" or "corporation" that is "engaged...in the exploration, drilling, or production of oil or gas in Louisiana," LDTS is inapplicable to Bass's claims. Therefore, Bass's arguments relying on LDTS are without merit.
We further find that SAMSHA and DOT regulations both only apply to urine tests—not hair tests—so those guidelines and regulations also do not apply to Bass's claims. Under DOT regulations found at 49 C.F.R. § 40.210, "[o]nly urine specimens screened and confirmed at HHS certified laboratories ... are allowed for drug testing under this part." Moreover, HHS's SAMHSA guidelines provide "the scientific and technical guidelines for federal workplace drug testing programs and established standards for certification of laboratories engaged in urine drug testing for federal agencies." Mandatory Guidelines for Federal Workplace Drug Testing Programs, 82 Fed. Reg. 7920-01. It is clear that Bass was not employed in a "federal drug-free workplace" as required under the regulation; as such, we agree that these provisions do not apply to him. Additionally, Bass's own expert, Dr. Swotinsky, stated that SAMHSA guidelines "permit testing of urine specimens, only." As such, these regulations do not apply to hair testing, and Bass's arguments relying on the DOT and SAMHSA guidelines in support of his claims are without merit.
Bass argued that DISA drug-testing guidelines and procedures must mirror DOT regulations. In support of his argument, Bass cited to what was attached to his opposition and labeled as exhibit 19, which purports to be DISA's substance abuse policy. However, as discussed in n.6, supra , Psychemedics objected, in its timely-filed reply memorandum, to Bass's exhibit 19, which the trial court excluded. As noted by the trial court, exhibit 19 is not competent summary judgment evidence because it lacks authentication. See Lilly v. Allied Health Care , 2007-0590 (La. App. 1st Cir. 6/6/08), 991 So. 2d 1096, 1099, writ denied, 2008-2081 (La. 12/12/08), 996 So. 2d 1117.
HIPAA regulates covered entities with access to individuals’ identifiable health care transaction records and imposes penalties for improper disclosure of confidential medical information. Tilson v. DISA, Inc., No. CV 17-240-SDD-EWD, 2018 WL 3132607, at *4 (M.D. La. June 26, 2018), citing Acara v. Banks, 470 F. 3d 569, 571 (5th Cir. 2006) and 42 U.S.C. § 1320d -o. However, there is no express or implied private cause of action to enforce violations of HIPAA provisions. Tilson, 2018 WL 3132607 at *4 ; Acara, 470 F. 3d at 571. Accordingly, we are constrained to find that Bass's claims premised upon HIPAA are also without merit.
In fact, "only the Secretary of the [HHS], and in certain circumstances state attorneys general, have the authority to enforce HIPAA and alleged violations of the statute." Tilson , 2018 WL 3132607 at *4.
Moreover, PHMSA regulations require operators of certain pipeline facilities to test covered employees for the presence of prohibited drugs and alcohol. 49 C.F.R. § 199.1. As noted above, Psychemedics contends that because it is the drug-testing laboratory, and not the operator of a pipeline facility, PHMSA does not apply. As such, we agree that the burden then shifted to Bass to produce factual support, through the use of proper documentary evidence attached to his opposition, establishing the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art 966(D)(1). In his opposition, Bass failed to rebut this argument or present any legal basis or evidence that Psychemedics was required to comply with the provisions of PHMSA. Accordingly, Bass failed to meet his burden of showing that Psychemedics was liable for a violation of PHMSA. We therefore affirm the portion of the trial court's judgment granting Psychemedics's motion for summary judgment and dismissing Bass's negligence per se claims.
DEFAMATION
Bass has also raised defamation claims against Psychemedics. Due to their chilling effect on the exercise of freedom of speech, defamation actions have been found particularly susceptible to summary judgment. Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So. 2d 669, 686. Summary judgment, being favored in the law, is a useful procedural tool and an effective screening device to eliminate unmeritorious defamation actions that threaten the exercise of First Amendment rights. Kennedy, 935 So. 2d at 686. Defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Barber v. Willis Communications, Inc., 2017-0658 (La. App. 1st Cir. 12/29/17), 241 So. 3d 471, 475. Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Further, if even one of the elements is found lacking, the cause of action fails. Bindom v. Kirby, 2018-0009 (La. App. 1st Cir. 4/23/19), 276 So. 3d 550, 555.
By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. In Louisiana, defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Bindom, 276 So. 3d at 555. Words that expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Bindom, 276 So. 3d at 555.
As to Bass's defamation claims, Psychemedics argues that Bass "cannot establish a genuine dispute of material fact as to whether his positive test result was inaccurate." Accordingly, Psychemedics contends that Bass cannot establish falsity or that Psychemedics was negligent or at fault in testing his hair sample, both of which are fatal to his defamation claim. In support of its motion for summary judgment, Psychemedics alleges that by signing the "Donor Certification and Authorization for Release of Test Results," Bass explicitly consented to the publication of his results to a third party, namely the VECTOR database.
The "Donor Certification and Authorization for Release of Test Results" states:
I provided the sample in the Sample Acquisition Card (SAC), the sample was cut close to the skin, and I witnessed the collector seal the sample in the SAC. I consent to the testing of the sample by ... Psychemedics ... and to the release of the results to the authorized recipient.
If I am submitting my sample at the request of a ... VECTOR ... participant, I authorize [Psychemedics] to make available information about my test results to any and all VECTOR participants.
In opposition, Bass contends that "a material fact exists as to whether Psychemedics had the valid consent under Louisiana privacy laws" to Psychemedics breaching his privacy and publishing the hair test result in the VECTOR database. Bass avers that Psychemedics broadcast "that [he] was a drug-user" to "every oil company and every contractor in the Deep South" and that he "did not consent to the release of disputed, faulty, challenged, and flawed results."
We find the instant case is comparable to Lewis v. Fed. Reserve Bank of Atlanta-New Orleans Branch, No. CIV.A. 04-1452, 2004 WL 2035006, (E.D. La. Sept. 10, 2004). In Lewis, the plaintiff brought defamation and negligence claims against Psychemedics stemming from a positive drug-test result. Similar to the instant case, the plaintiff signed a release that purported to release "Psychemedics Corporation, its officers, employees, agents, and representatives from any and all liabilities arising from the reporting of my results to the authorized recipient...." Based on this release, Psychemedics argued that it was free from liability for any alleged negligence. However, the court found that the language only released Psychemedics from liability, which might arise from reporting the results, not from any alleged negligence. Lewis, 2004 WL 2035006 at *2.
In the instant case, Bass signed a release that stated, "[i]f I am submitting the sample at the request of a ... VECTOR ... participant, I authorize Psychemedics Corporation to make available information about my test results to any and all VECTOR participants." Similar to Lewis, we find that this language released Psychemedics from liability premised upon reporting his results to the VECTOR database.
Accordingly, Psychemedics made the requisite evidentiary showing that it is entitled to summary judgment in its favor as a matter of law. Because Bass is unable to establish the third element of defamation, namely that there was an unprivileged publication to a third party, his defamation claims fail. See Bindom, 276 So. 3d at 555. Therefore, we find no merit to Bass's assignment of error as it relates to the dismissal of his defamation claims on summary judgment.
WEIGHING EVIDENCE AND MAKING CREDIBILITY DETERMINATIONS IN DECIDING SUMMARY JUDGMENT
In his second assignment of error, Bass argues that the trial court erred in weighing the testimony of its expert, Dr. Parent. In his third assignment of error, Bass contends that the trial court erred in making a credibility determination "in disregarding" the affidavit of his expert, Dr. Swotinsky. In determining whether an issue is "genuine" or a fact is "material," courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Kasem, 212 So. 3d at 13.
In its oral reasons for ruling, the trial court stated that in considering Dr. Parent's expert affidavit, it noted that Dr. Parent did not address the issues before the court, thereby failing to create a genuine issue of material fact:
AND THEN I'VE GOT DR. PARENT WHO QUESTIONS THE ACCURACY OF CERTAIN STATEMENTS BY [PSYCHEMEDICS] IN THEIR MOTION FOR SUMMARY JUDGMENT. WHETHER OR NOT THAT FDA APPROVAL IS SUBSTANTIAL ENOUGH, WHETHER OR NOT THE FBI HAS ACTUALLY VALIDATED THIS WASH PROCEDURE, AND HE DISAGREES OR QUESTIONS WHETHER THIS PROTOCOL HAS BEEN ACCEPTED OR ACKNOWLEDGED BY THE U.S. SUPREME COURT. NONE OF THEM ADDRESS ISSUES OF FACT THAT I HAVE TO DECIDE.
There is nothing in the record nor in the trial court's reasons to indicate that it gave Dr. Parent's affidavit less weight than other evidence submitted in support of or in opposition to Psychemedics's motion for summary judgment. The trial court merely found that Dr. Parent's affidavit did not create a genuine issue of material fact.
As to Dr. Swotinsky's affidavit, the trial court stated:
AND LIKE SWOTINSKY SAYS THAT THIS IS OFTEN WHAT'S DONE IN URINE, IT WAS NEVER ASKED FOR.... HE TALKS ABOUT A LACK OF A STANDARD PROTOCOL FOR HAIR ANALYSIS, BUT DOESN'T ALLEGE THAT THERE WAS ANY BREACH OR ANY NEGLIGENCE ON THE PART OF [PSYCHEMEDICS] IN PERFORMING ITS TEST. AND HE MAKES SORT OF A [CONCLUSORY] STATEMENT, "WELL, THEY FAILED TO ELIMINATE ANY CONTAMINATION." BUT HE DOESN'T SAY HOW. HE DOESN'T SAY WHY. AND THEN GIVES THE OPINION, "WELL, SINCE HIS URINE TEST THAT DAY WAS NEGATIVE AND HIS HAIR TEST THAT DAY WAS POSITIVE, MORE WEIGHT SHOULD BE GIVEN TO THE URINE THAN TO THE HAIR TEST." AND I THINK THAT'S PREPOSTEROUS FOR THE REASONS STATED EARLIER. HE STATES CERTAIN CONCLUSIONS BUT VOID OF ANY FACTS THAT WOULD ESTABLISH THOSE CONCLUSIONS. AND I DON'T THINK THAT HIS AFFIDAVIT SERVES TO RAISE A GENUINE ISSUE OF MATERIAL FACT.
There is nothing in the record nor in the trial court's reasons to indicate that it disregarded Dr. Swotinsky's affidavit. The trial court clearly considered his affidavit and provided extensive reasons as to why it found that Dr. Swontinsky's affidavit failed to raise any genuine issues of material fact. For the foregoing reasons, we find no merit in Bass's second and third assignments of error.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court's October 17, 2019 judgment, granting summary judgment in favor of the defendant, Psychemedics Corporation, and dismissing the claims of the plaintiff, Brady Bass, against Psychemedics, with prejudice. Costs of this appeal are assessed to the plaintiff, Brady Bass.
AFFIRMED.
Whipple, C.J. dissents and assigns reasons.
WHIPPLE, C.J., dissenting in part.
The majority opinion herein affirms the trial court's judgment granting summary judgment in favor of the defendant, Psychemedics Corporation, and dismissing the claims of the plaintiff, Brady Bass, against Psychemedics, with prejudice. On the record before us, I disagree, particularly with respect to Bass's negligence claims against Psychemedics.
I agree that Psychemedics made an initial prima facie showing that the motion for summary judgment should be granted by demonstrating that it acted reasonably in obtaining Bass's hair sample and following its standard testing procedures. Thus, once Psychemedics put forth this evidence showing that it acted reasonably under the circumstances regarding the proper chain of custody and that it tested the hair sample under the appropriate procedures, the burden shifted to Bass to produce factual support sufficient to establish the existence of a genuine issue of material fact such that Psychemedics was not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1).
The majority concludes that "the results of a different lab test on a different type of biological sample [do] not create a genuine issue of material fact" as to whether Psychemedics's test results were inaccurate due to any negligence on Psychemedics's part. In my view, the fact that a negative urine test resulted from a sample collected on the same day and tested by a different laboratory, Clinical Reference Laboratory, creates a genuine issue of material fact which precludes summary judgment. There is no competent evidence before us on review of the summary judgment that explains or distinguishes the two types of drug tests or establishes that the inconsistent results resolve all genuine issues of material fact. Although the trial court relied on "standing knowledge" to conclude that drugs "metabolize[ ] in ... urine a lot faster than it does in ... hair[,]" standing knowledge is not competent evidence on summary judgment. See LSA-C.C.P. art. 966(A)(4) and (D)(2). Accordingly, because there is nothing in the record to demonstrate that the two tests are distinguishable, I find that the conflicting test results are sufficient to create a genuine issue of material fact as to whether or not Psychemedics negligently tested Bass's hair sample. For these reasons, I respectfully dissent in part from the majority's opinion herein and would reverse the portion of the trial court's judgment that granted the motion for summary judgment as to Bass's negligence claims against Psychemedics and remand to the trial court for further proceedings.
In his opposition, Bass cited to a Wikipedia webpage to establish the length of time from the last drug usage each test can detect drugs; however, this statement is not competent evidence on summary judgment and was not considered in my review of the motion. See LSA-C.C.P. art. 966(A)(4) and (D)(2).
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