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Duncan v. Afton11/30/1999
y holding that a testing laboratory owes no duty of care to an employee, Caputo v. Compuchem Laboratories, Civ. A. No. 92-6123, 1994 WL 100084 (E.D. Pa., Feb. 23, 1994), and Herbert v. Placid Refining Co., 564 So.2d 371, 374 (La. App.), writ denied, 569 So.2d 981 (La. 1990). Both of these cases reached their holdings with little or no duty of care analysis. Caputo refused to find that a drug tester owed any duty beyond providing an accurate report. Caputo, at *3. The laboratory reported a urinalysis as positive for morphine and the employer terminated plaintiff=s employment based upon this result. Claiming that the result was due to poppy seed consumption, the employee had an independent laboratory test the same specimen and confirmed the accuracy of the result. However, the positive result was at such a low level that, among other claims, plaintiff contended the laboratory had a duty either to corroborate the result by an additional test identified in federal regulations before reporting the positive result to the employer, or to ensure the employer properly interpreted the result. Caputo, at *2. The federal district court disagreed, finding it inappropriate to impose a duty on the laboratory to verify positive results or to notify the employer, and finding that neither the facts nor the law supported holding a laboratory negligent for accurately reporting a positive result without verifying the result. Caputo, at *3.
In Herbert, a Louisiana intermediate appellate court held that a testing laboratory had no duty to competently analyze the urine of a plaintiff. Analogizing the action to one of negligent interference with a contract, a tort not recognized in Louisiana, the court limited its analysis to a determination that no relationship existed between the plaintiff-employee and the testing laboratory that would justify imposing a duty. Herbert, 564 So.2d at 373-74. Other Louisiana intermediate appellate courts have specifically rejected the holding in Herbert, holding that a claim in general negligence exists based on a breach of a duty to perform drug tests in a competent and non-negligent manner. Nehrenz v. Dunn, 593 So.2d 915, 917 (La. App. 1992); Elliott v. Laboratory Specialists, Inc., 588 So.2d 175, 176 (La. App. 1991), writ denied, 592 So.2d 415 (La. 1992); Lewis v. Aluminum Co. of America, 588 So.2d 167, 170 n.3 (La. App. 1991), writ denied, 592 So.2d 411 (La. 1992).
When this Court has considered whether a duty should be imposed based on a particular relationship, we have balanced numerous factors to aid in that determination: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.
Ortega v. Flaim, 902 P.2d 199, 203, 206 (Wyo. 1995) (quoting Mostert, 741 P.2d 1090, 1094 (Wyo. 1987), citing to Gates v. Richardson, 719 P.2d 193, 196 (Wyo. 1986), quoting Tarasoff v. Regents of University of California, 551 P.2d 334, 342 (Cal. 1976)).
Afton contends that harm to Duncan is not foreseeable merely by its selection of urine as the subject of collection and analysis. Duncan disagrees, indicating evidence exists that urinalysis for alcohol content is unreliable and Afton negligently recommended it to Solvay. Duncan further contends that Afton negligently collected and handled his urine specimen. We find that Afton could foresee that impro
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