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McBride v. American Substance Abuse Professionals, Inc.

United States District Court, E.D. Pennsylvania

January 17, 2013

Thomas McBRIDE, Plaintiff,

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Matthew B. Weisberg, Weisberg Law PC, Morton, PA, for Plaintiff.

Robert C. Drake, Littler Mendelson, Philadelphia, PA, Nancy Delogu, Littler

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Mendelson PC, Washington, DC, for Defendants.


EDUARDO C. ROBRENO, District Judge.

Thomas McBride (Plaintiff) brings this action in negligence against National Diagnostics, Inc. (Defendant NDI). Defendant NDI moved for summary judgment. For the reasons that follow, the Court will grant the Motion for Summary Judgment (ECF No. 56).


Plaintiff claims Defendant NDI was negligent in reviewing drug-test results regarding Plaintiff's urine sample. Defendant NDI confirmed a determination that the sample tested positive for cocaine, resulting in Plaintiff's termination.

Plaintiff is a resident of Chesterbrook, Pennsylvania, and a former United Parcel Service (UPS) package truck driver. He is currently unemployed. McBride Dep. 66:17-20, ECF No. 56-2, Feb. 3, 2012. Defendant NDI is a third-party administrator that provides comprehensive drug testing and medical review officer (MRO) services whose corporate headquarters are located in Charlotte, North Carolina. Second Am. Compl. ¶ 5, ECF No. 45. On June 23, 2008, Defendant NDI entered into an agreement with UPS to provide MRO services in reviewing and reporting the results of UPS's employee drug tests to UPS. See NDI Substance Abuse Testing Services Agreement 1, 4.

Pursuant to the agreement, Defendant NDI performs these services in accordance with a collective bargaining agreement (CBA) between the Teamsters Local 623 Union, of which Plaintiff was a member during his employment, and UPS. Id. at 1; Def.'s Mot. for Summ. J. Ex. B., CBA art. 35, § 3.17, ECF No. 56-3. The CBA requires that UPS testing procedures be modeled on drug and alcohol testing regulations issued by the Department of Transportation for regulated transportation workers (DOT regulations):

Because of the consequences that a positive test result has on an employee, UPS will employ a very accurate, two-stage program. Urine samples will be analyzed by a highly qualified independent laboratory which is certified by the Department of Health and Human Services. All samples will be tested according to DOT drug testing requirements. Validity testing for the presence of adulterants shall be conducted on all specimens, per HHS requirements.

CBA art. 35, § 3.2. Also relevant here, the CBA requires that an initial drug test, or " screening test," must use an " immunoassay" to determine levels of drugs or drug metabolites. The CBA additionally sets the threshold for a positive cocaine test at 300 nanograms per millilitre (ng/ml). Id. § 3.3. After the initial test, all specimens identified as positive must be confirmed using gas chromatography/mass spectrometry (GC/MS) techniques, and the CBA sets the positive test threshold for cocaine at 150 ng/ml. Id. § 3.4. Moreover, all drug-testing laboratories selected by UPS must be certified by the Department of Health and Human Services (HHS) and must comply with DOT regulations and the above-mentioned requirements. Id. § 3.5. Employee-testing procedures must be performed both pursuant to DOT-mandated random testing and as follow-up testing for

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post-drug and post-alcohol rehabilitation. Id. § 3.6.

Also required by the DOT and, by extension, UPS and Defendant NDI, are the following: (1) a standard DOT-approved urine custody-and-control form supplied by the testing laboratory and signed by the employee and by handling agents at all collections facilities, id. § 3.14; (2) a Specimen Collection Checklist to be used with the affected employees at the collection site by the person collecting the urine sample from the employee, which checklist is to be used at all locations, although " it is understood that failure to use or the refusal to use the checklist does not invalidate a properly conducted controlled substance testing procedure," id. § 3.15; and (3) specimen containers that must be sealed and forwarded to an approved laboratory for testing, with the collector inspecting the sample and checking its temperature before sealing the sample container and placing a security label over the cap, which label is then signed by the employee, id. § 3.16; see also McBride Dep. 46:3-10. Specimen handling from one authorized individual or place to another must be conducted using chain-of-custody procedures. CBA art. 35, § 3.15.

The CBA also governs MRO procedures. It requires MROs to be licensed doctors of medicine or osteopathy with knowledge of substance abuse disorders, issues relating to adulterated and substituted specimens, possible medical causes of specimens having an invalid result, and applicable DOT regulations. Id. § 3.17. Furthermore, MROs must keep current on DOT regulations and comply with the DOT qualification training and continuing education requirements. MRO responsibilities include the following: (1) reviewing the results of UPS's drug testing program; (2) receiving all positive and negative drug test reports as prescribed under DOT regulations and making all reports of drug test results to employers; (3) within a reasonable time, notifying an employee of a confirmed positive test result; (4) reviewing and interpreting each confirmed positive test result in order to determine if there is an alternative medical explanation for the specimen's testing positive; and (5) processing an employee's request to re-test the sample, which must be made within 72 hours of receipt of actual notice of a positive test result.[2] Id.

The MRO must perform the following functions as part of the review of a confirmed positive test result: (1) provide an opportunity for the employee to discuss a positive test result; (2) review the employee's medical history and relevant biomedical factors; (3) review all medical records made available by the employee to determine if a confirmed positive test resulted from legally prescribed medication or other possible explanations; and (4) verify that the laboratory report and assessment are correct. Id. If the MRO determines, after appropriate review, that there is a legitimate medical explanation for the confirmed positive test result, the MRO shall report the test to the employer as a negative. Id. § 3.18. If, however, the MRO determines that there is no legitimate medical explanation, he or she must report the positive test result to the employer in accordance with DOT regulations. Id.

The relevant timeline of events in the case at hand is as follows. In 1991, Plaintiff began working full-time as a delivery driver for UPS. McBride Dep. 14:7-8. Plaintiff was provided with a copy ...

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