Berry v. National Medical Services, Inc.

205 P.3d 745, 41 Kan. App. 2d 612, 2009 Kan. App. LEXIS 143

• Court: Court of Appeals of Kansas
• Decided: April 3, 2009
• Docket: 99,953
• Status: Published

Opinions

McAnany, J.:

This case comes to us following the district court’s dismissal of plaintiff s amended petition for failure to state an actionable claim for either negligence or violation of the Kansas Consumer Protection Act. Resolution of the negligence claim turns on whether the defendants owed a duty to plaintiff under the facts alleged. Resolution of the Kansas Consumer Protection Act claim turns on whether plaintiff s claim is barred either because the action was not commenced within the period of the applicable statute of limitations or because plaintiff was not a party to any consumer transaction.

Kansas is a notice-pleading state. As a general rule, a petition need contain only “(1) [a] short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which the pleader deems such pleader’s self entitled.” K.S.A. 60-208(a). A legal theory for relief need not be detailed, so long as the petition apprises the defendant of the facts upon which the plaintiff claims to be entitled to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, we must assume all factual allegations in the amended petition are true and draw all reasonable inferences in favor of the plaintiff to determine if it states an actionable claim on any possible theory. See Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007); Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). Plaintiff asserts the following which we assume to be true for the purpose of our analysis:

The plaintiff, Judith Berry, was a registered nurse licensed to practice her profession by the Kansas State Board of Nursing (Board). Berry admitted to the Board that she had a problem with alcohol dependency. Accordingly, in August 2003 she agreed to participate in the Board’s Kansas Nurses Assistance Program (KNAP) pursuant to which she agreed to refrain from consuming alcoholic beverages and to submit to random testing to confirm her abstinence.

The Board contracted with defendant Compass Vision, Inc. (Compass), to serve as the third-party administrator of KNAP’s alcohol testing program. In turn, Compass engaged’defendant National Medical Services, Inc. (NMS), to provide alcohol testing for nurses in KNAP and to report its test results to the Board.

Ethyl glucuronide (EtG) is a metabolite of alcohol. The presence of EtG in urine reportedly provides proof of prior alcohol consumption, even after the alcohol itself has been eliminated from the body. Compass and NMS were leading proponents of EtG testing and touted EtG testing as the “gold standard.” Compass and NMS established 250 ng/ml (nanograms per milliliter) as the threshold for a “positive” test result. In other words, the presence of more than 250 ng/ml of EtG in a urine sample was reported to the Board as positive for the test subject having consumed alcohol. Further, Compass claimed that any EtG test result over 500 ng/ml conclusively proved intentional consumption of an alcoholic beverage by the test subject.

Published scientific literature as early as March 2004 disclosed that many ordinary products, including hand sanitizers used in hospitals throughout the country, contain ethanol, the use of which could result in positive EtG test results. Notwithstanding this information, the defendants continued to promote as valid and reliable their EtG test with its 250 ng/ml threshold for a positive result.

In January 2005, and again in June 2005, Berry submitted to random urinalyses and provided samples that were collected by Compass and analyzed by NMS. The test results for both samples were positive for Berry having consumed alcohol in violation of her KNAP agreement. Berry denies having consumed any alcoholic beverage that would account for the positive test results. In August 2005, the Board revoked Berry’s nursing license.

In this action Berry claims Compass and NMS were negligent in a number of respects, including in designing, implementing, promoting, and managing their EtG testing protocol. Among the various specific grounds for negligence, she asserts that Compass and NMS were negligent in “[ejstabhshing cutoffs over which test results would be reported as positive’ that were arbitrary and scientifically unreliable and invalid.” Further, Compass and NMS knew that because Berry was a participant in KNAP, her license to practice nursing would be in jeopardy if she tested positive. Berry also claims the conduct of Compass and NMS constitutes deceptive acts and practices contrary to K.S.A. 50-626 of the Kansas Consumer Protection Act (Act).

The district court, without analysis or explanation, sustained the defendants’ motions to dismiss.

Negligence Claim

In her negligence claim Berry does not assert that EtG is an inaccurate indicator for alcohol or that the defendants mishandled or misanalyzed her urine sample. Neither does she claim that they misreported the presence of EtG in her sample. She maintains only that because alcohol is present in everyday products like the hand sanitizers she used at her job, the defendants owed her a duty to avoid reporting false-positive results by adopting a minimum threshold which accurately indicates alcohol consumption instead of incidental exposure to alcohol. Further, she does not allege that the defendants failed to warn her or the Board of alternative sources of EtG, as the defendants seek to characterize her claim. Her claim is simply that the defendants set the threshold for a positive test result at a level that is arbitrary and scientifically unreliable.

The fundamental basis for the defendants’ motion with respect to the negligence count was that they owed no duty to Berry. Whether a legal duty exists is an issue of law over which appellate courts have unlimited review. Roe v. Kansas Dept. of SRS, 278 Kan 584, 592, 102 P.3d 396 (2004). As expressed by our Supreme Court in Blackmore v. Auer, 187 Kan. 434, 441, 357 P.2d 765 (1960),

“[a]n act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. (Pfalsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253).”

Three elements must be satisfied before a legal duty arises in Kansas. First, the plaintiff must be a foreseeable plaintiff, i.e., “within the range of apprehension.” Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983), disapproved on other grounds Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).

Second, the probability of harm must be foreseeable. OMI Holdings, Inc. v. Howell, 260 Kan. 305, 338, 918 P.2d 1274 (1996). “ ‘[T]he test of negligence ... is not whether the [defendant] should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result.’ [Citation omitted.]” 260 Kan. at 337-38; see Cerretti v. Flint Hills Rural Electric Co-op. Ass’n, 251 Kan. 347, 351, 837 P.2d 330 (1992). Foreseeability as referred to in these first two tests is

“ ‘ “a common-sense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. [Citation omitted.] An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.” ’ [Citation omitted.]” South v. McCarter, 280 Kan. 85, 103-04, 119 P.3d 1 (2005).

Third, there must be no public policy against imposing the claimed duty on the defendant. OMI Holdings, 260 Kan. at 338 (“A court may choose not to recognize the duty if the duty goes against public policy.”). But Kansas courts tread lightly on matters of public policy because the legislature is better equipped tó establish public policy. For example, in Ling v. Jans Liquors, 237 Kan. 629, 640, 703 P.2d 731 (1985), our Supreme Court deferred to the legislature and declined to impose liability on alcohol vendors for torts committed by inebriated patrons when the legislature had not enacted a dram shop act.

Berry easily satisfies the tests for a foreseeable plaintiff and foreseeable injury. Berry’s circumstances stand in stark contrast to the classic circumstances of Mrs. Pfalsgraf, who was standing on the railroad platform when a man carrying a package of fireworks attempted to jump onto a train which had started to move. A railroad employee, attempting to help the man, dislodged the package of fireworks, causing them to fall to the tracks and explode. The concussion caused scales on the platform many feet away to fall, striking Pfalsgraf. See Pfalsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928). Berry, on the other hand, was not a bystander but the direct and immediate object of the defendants’ conduct. Among those whom these defendants could foresee asserting a claim against them for negligent testing, Berry clearly stands at the front of the line.

The harm Berry alleges was equally foreseeable by the defendants. The testing services promoted and provided by these defendants could be used by private employers evaluating prospective employees, by licensing agencies such as the Board here, or by courts when dealing with criminal defendants. Errors in administering alcohol testing programs or reporting their findings could lead to a prospective employee being rejected by a private employer or, in circumstances such as those present here, a licensed professional being denied the opportunity to continue in his or her profession. In tire case of the courts, these errors could lead to the loss of personal freedom.

Here, the defendants solicited business from the Board to test nurses whose licenses were at risk because of claims of alcohol abuse. The defendants could clearly foresee that a positive test result could result in the loss of the test subject’s license. The exact harm Berry claims to have experienced here was a foreseeable consequence of negligence in the testing and reporting of the test results to the Board.

Finally, there is no public policy against imposing liability. We defer to our legislature in establishing public policy and find no expression by our legislature that urinanalysis providers are exempt from liability for their negligence in providing faulty results or interpretations. These defendants, as testing providers to the Board, do not argue that they are protected by sovereign immunity. We find no public policy that would immunize these defendants from the consequences of their actions. Therefore, the third element for establishing a duty has been satisfied.

In this regard we note the dissent’s public policy argument which is predicated upon the fact that this claim arose in the context of administrative proceedings to determine Beriy’s fitness to practice her profession. The dissent seems to confuse the wrongful conduct Berry complains of with the product of that wrongful conduct. The wrongful conduct in this action is the claimed negligence of Compass and NMS, not the action of the Board in revoking Berry’s nursing license. The consequence of this claimed negligence was the loss of Berry’s license and the damages that followed.

We conclude that under Kansas law Berry has alleged the breach of a recognizable duty, and she has pled a cause of action for which relief may be granted.

Appellate courts in other states have reached the same conclusion we reach today. See Stinson v. Physicians Immediate Care, 269 Ill. App. 3d 659, 646 N.E. 2d 930 (1995); Lewis v. Aluminum Co. of America, 588 So. 2d 167 (La. App. 1992); Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999).

Defendants, on the other hand, rely on Perez-Rocha v. Com., Bureau of Pro., 933 A.2d 1102 (Pa. Commw. 2007), as contraiy authority. There, the Pennsylvania Supreme Court affirmed the 3-year suspension of a medical doctor’s license. 933 A.2d at 1108. The issue before the court was the sufficiency of the evidence supporting the agency’s action, not whether the testing agency owed a duty to its test subject. Defendants rely on Perez-Rocha to establish the scientific reliability of EtG testing. The issue is not the reliability of the test itself, but the manner in which its results are reported. As we read Berry’s amended petition, she does not challenge the scientific basis for EtG testing, she merely claims that the defendants were negligent in establishing an arbitraiy and unreasonably low threshold for a positive test result. Perez-Rocha does not apply.

Defendants also rely on SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353-55 (Tex. 1995), which involved a preemployment drug screen which disclosed opiates in the applicant’s urine. The applicant claimed that she tested positive because she had eaten poppy seeds before the test. She alleged that the testing laboratory had a duty to inform her or her employer that poppy seed consumption could cause a false-positive test result. She also claimed that the lab should have asked her before the test whether she had eaten poppy seeds. In rejecting this claim, the Texas Supreme Court found that the duty the plaintiff advocated would require the testing lab to “inform each test subject not only of the possible effect of poppy seeds but of all possible causes of positive results other than using drugs.” 903 S.W.2d at 353. The court left open the question “whether a drug testing lab . . . has a duty to use reasonable care in performing tests and reporting the results.” 903 S.W.2d at 355.

SmithKline Beecham is not persuasive. Berry does not claim that the defendants had the duty to warn the Board of all the potential sources of EtG such as hand sanitizers. Rather, she alleges that the defendants were negligent in setting too low a threshold for a positive test result. The court in SmithKline Beecham was concerned that it was being asked to impose an unreasonable burden on testing entities by requiring them to inform each test subject of all possible sources and causes of positive test results. 903 S.W.2d at 353. The duty Beriy seeks us to declare here would have no such burdensome effect.

The defendants also rely on Willis v. Roche Biomedical Laboratories, 61 F.3d 313 (5th Cir. 1995), a case decided about a week after SmithKline Beecham, which was based on Texas substantive law. In Willis, Roche provided random drug testing for DuPont. Willis, a DuPont employee, tested positive for methamphetamine and was placed on restricted work duty and sent to a physician. Three months later Roche informed DuPont that the test had registered a false positive by confusing the presence of an over-the-counter cold medicine with illegal methamphetamine. Upon learning of the mistake, DuPont compensated the employee for lost time and for medical expenses. The Fifth Circuit Court of Appeals, without undertaking a foreseeability analysis, relied on SmithKline Beecham in affirming the district court’s entiy of summary judgment in favor of Roche on Willis’ negligence claim. 61 F.3d at 315-16. Since the holding in Willis is predicated entirely upon the decision in SmithKline Beecham, and since SmithKline Beecham is clearly distinguishable, we do not find Willis to be persuasive.

The other cases cited and discussed by the defendants, such as Caputo v. Compuchem Laboratories, Inc., 1994 WL 100084, at *3-4 (E.D. Pa. 1994) (unpublished opinion), and Vargo v. National Exchange, 376 N.J. Super. 364, 870 A.2d 679 (2005), also involved claims that the testing entity failed to inform the employer that the positive test result could be attributable to causes other than the presence of illegal drugs. As discussed earlier, these cases are distinguishable from the claims before us. Berry makes no claim that the defendants had the duty to inform the Board of all the possible sources for the metabolite found in her urine sample. She simply claims that the threshold for a positive test result was set in a negligent fashion.

Berry presents an actionable claim for negligence against these defendants. The district court erred in dismissing Berry’s amended petition for failure to state a claim.

Consumer Protection Claim

The defendants claim that Berry’s consumer protection claim is barred because it was not commenced within the period of applicable statute of limitations and because Berry’s claim does not involve a consumer transaction. We need only address the latter defense.

Berry claims in her amended petition that she was the victim of deceptive practices in a consumer transaction with the defendants. This claim calls for our de novo interpretation of the Act. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). In doing so, we give effect to the intent of the legislature as expressed through the language it employed. There is no need to speculate as to the legislature’s intent when confronted with a statute that is clear and unambiguous on its face. When considering such a statute, we will not read into it something not readily found there. See In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008).

The Act applies to “consumers” engaged in “consumer transactions” with “suppliers.” See K.S.A. 50-623(b); K.S.A. 50-624, comment (c); K.S.A. 50-626(a). A “consumer transaction” is the “sale, lease, assignment or other disposition for value of property or services . . . to a consumer.” K.S.A. 50-624(c). We assume arguendo that drug testing is a “service” contemplated by the Act. See Moore v. Bird Engineering Co., 273 Kan. 2, Syl. ¶ 4, 41 P.3d 755 (2002) (finding that an engineer who designed a bridge provided a service under the Act).

A close reading of Berry’s amended petition discloses the following allegations:

• Compass contracted with the Board to be the third-party administrator for the Board’s alcohol testing program for nurses.

• NMS contracted with the Board to do EtG testing of the nurses.

• NMS provided to the Board the results of alcohol testing.

• Nurses who abuse alcohol are required to submit to random urinalyses.

• Beriy agreed with the Board to submit to random testing.

• Berry submitted to random testing in January and June 2005.

In Count II of her amended petition Berry incorporates the foregoing facts and adds that she “purchased the defendants EtG test for allowable purposes under the act and is therefore entitled to an award of [damages].” This reference to a “purchase” seems to be a contradictory characterization of the transactions described in detail earlier in her amended petition. Her factual allegations disclose transactions between the Board and the defendants but not a consumer transaction between Berry and the defendants.

Nowhere in her amended petition does Berry allege facts one could characterize as her exchanging anything of value with the defendants to secure their services. The Act only applies to “consumer transactions,” which are “sales” or other “dispositions for value” of consumer goods or services. K.S.A. 50-624(c). Black’s Law Dictionary 1364 (8th ed. 2004), defines “sale” as the exchange of “a thing” for “a price in money paid or promised.” It defines “value” as the “money that something will command in an exchange.” Black’s Law Dictionary 1586.

While we liberally construe Berry’s amended petition in search of any viable theory of recovery, we cannot ignore the obvious import of her specific allegations and accept her mischaracterization of them in order to preserve a consumer protection claim that obviously does not arise from a consumer transaction. Accordingly, we conclude that the district court did not err in dismissing Berry’s consumer protection claim.

Affirmed in part, reversed in part, and remanded for further proceedings on the plaintiff s negligence claim.