U.S. DRUG TEST ACT DOES NOT BAR TORTS

The federal scheme for the drug testing of transportation employees
does not pre-empt a state common-law cause of action brought for a
false positive drug test, an Eastern District of New York judge has
ruled.

Judge Frederic Block, ruling on an issue that has divided some circuit
courts, found that the pre-emption language of Federal Omnibus
Transportation Employee Testing Act (OTETA) and rules passed to
implement the act make clear that the federal government intended only
to prevent state or local law from interfering with its drug testing
regime.

The ruling came in the case of Drake v. Laboratory Corp. of America
Holdings, 02-CV-1924, the latest filing in the 10-year effort of
former Delta Airlines flight attendant Richard W. Drake to clear his
name.

Drake lost his job in 1993 because he allegedly failed a drug test
required by OTETA. He claimed the test was a false positive, the
result of a series of errors in handling the sample and the alteration
of test results. He also claimed that the false positive contradicted
other tests on the same sample that clearly showed a lack of narcotics
or adulterants in his system.

When he was fired after refusing to resign, Drake claimed, he asked
the defendants for records relating to his drug test, but he was told
the records had either been lost or destroyed.

After several rounds of litigation, including complaints to the
Federal Aviation Administration, Drake was faced with the lab
company's motion to dismiss his federal claims. The company also
argued that Drake's state claims, which included negligence,
spoliation and intentional infliction of emotional distress, were
pre-empted by both OTETA and the language of rules adopted pursuant to
the act by the FAA.

Judge Block said the only federal circuit courts to rule on the issue
of pre-emption in the drug testing arena split on the issue. The 5th
U.S. Circuit Court of Appeals, in Frank v. Delta Airlines Inc., 314
F.3d 195 (2002), found in favor of pre-emption. But the 9th Circuit,
in Ishikawa v. Delta Airlines Inc., 343 F.3d 1129 (2003), just 10
weeks ago found that a state negligence claim against a testing lab
was neither expressly or impliedly pre-empted.

Noting that district courts have also been divided on the issue, Block
said there was "significant regulatory and legislative history, which
neither Frank nor Ishikawa has plumbed" that addresses whether the FAA
or Congress sought to pre-empt state common-law tort remedies.

The FAA, in a 1987 statement leading up to the adoption of its
pre-emption rule on drug testing in 1988, said, "This rule pre-empts
any State or local law that would prohibit or limit drug testing
required under the rule."

Thus, Block said, "the avowed preemptive purpose was not aimed at
barring suits for common law torts; it was intended to prevent any
state from prohibiting or limiting the drug testing required by the
FAA."

Moreover, he said, Congress reinforced and confirmed these regulations
when it passed OTETA in 1991. Block said a Senate report leading up to
the passage expressed concern that the new statute and the FAA's
regulations on testing would be affected by several states that had
passed limitations prohibiting or restricting drug testing.

"In the present case, both the statutory and regulatory language, and
their collective underlying purpose, compel the conclusion that
neither the preemption provisions nor the drug testing regulations
were expressly or impliedly intended to preclude any common law tort
claims," he said.

Acceptable Remedy

After parsing the language of U.S. Supreme Court case law on the issue
of pre-emption, Block said one key point is that state claims do not
conflict with the federal regulatory scheme, and "what is common to
all of Drake's common law claims is that they need not be dependent on
the violation of any particular regulation; rather, they could be
separately actionable based on traditional state tort law.

"To hold otherwise would mean that drug testers would invariably be
immunized from any compensatory liability for their misbehavior," he
said, because there is no private right of action for violation of
drug testing regulations, and "constitutional claims will rarely be
cognizable."

Block also noted that the sole recourse for a plaintiff under a strict
pre-emption format would be to file a complaint with the FAA, which
only has the power to proscribe future violations and cannot grant
damages.

"Given the egregious nature of a false positive test report, this is
simply not an acceptable remedy," Block said. "It is inconceivable
that Congress would want to bar -- and it has not -- one who has been
falsely accused of illicit drug usage from seeking common law
compensation from those responsible for devastating his or her life."

Samuel O. Maduegbuna of Maduegbuna Cooper represented the plaintiff.
Laboratory Corp. of America Holdings was represented by Demetrios C.
Batsides of Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Northwest
Toxicology Inc. was represented by Jeffrey Hurd of Phelan, Burke &
Scolamiero.