Braverman v. Bendiner & Schlesinger, Inc.

121 A.D.3d 353, 990 N.Y.S.2d 605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 6, 2014
• Docket: 2012-00451
• Status: Published

Opinions

OPINION OF THE COURT

Skelos, J.

In Landon v Kroll Lab. Specialists, Inc., (22 NY3d 1, 6-7 [2013]), the plaintiff sought to recover damages from a drug testing laboratory, alleging that it negligently reported his drug test as positive. The Court of Appeals, in affirming an opinion and order of this Court (see Landon v Kroll Lab. Specialists, Inc., 91 AD3d 79 [2011]), recognized that a drug testing laboratory had a duty to the subject of a drug test to adhere to relevant professional standards in performing such testing. The plaintiffs in this case similarly claim that they suffered adverse consequences when the positive results of drug tests, performed by the defendant Bendiner & Schlesinger, Inc. (hereinafter Ben-diner), were reported to drug treatment courts by the defendant drug treatment center, Daytop Village, Inc. (hereinafter Day-top). However, the plaintiffs in this case do not take issue with the manner in which the tests were performed or challenge the accuracy of the results reported. Rather, the plaintiffs assert that the testing met only clinical, not forensic standards, and that, accordingly, the results should not have been admitted as evidence in court. They argue that Bendiner and Daytop had a duty to label the drug test results or provide a disclaimer indicating that the results were only to be used for clinical, not forensic, purposes. We find this to be an unwarranted expansion of the duty set forth in Landon, and, therefore, affirm the judgment in favor of Bendiner and Daytop, dismissing the complaint.

The plaintiff Laurie Braverman was a respondent in a child protective proceeding commenced in the Family Court, Rock-land County, and the plaintiff Cindy Lohmeyer was a defendant in a criminal proceeding commenced in the County Court, Rock-land County. Both plaintiffs have well-documented histories of substance abuse, and were brought under the jurisdiction of the drug treatment courts established in Rockland County (see generally 22 NYCRR 43.1, 143.1-143.3). The plaintiffs each sought, and were granted, conditional supervision by these courts, according to which they voluntarily entered into a contract to abide by certain specified terms and conditions, including: abstinence from substance abuse, enrollment in a substance abuse treatment program, submission to random drug and alcohol testing, and the release of information from the treatment facility, such as the results of drug testing, to the supervising court or an ancillary agency. The plaintiffs each enrolled in a program at Daytop, a drug treatment center. They executed contracts and release forms, pursuant to which they acknowledged that enrollment at Daytop was voluntary, and authorized the release of information from Daytop to the relevant drug treatment court or its ancillary agencies.

Daytop contracted with Bendiner, a laboratory certified by the New York State Department of Health (hereinafter the NYSDOH), to perform specified drug testing. To the extent applicable here, the contract required Bendiner to perform clinical drug testing on oral fluid samples obtained by Daytop from its clients. The contract did not require Bendiner to perform forensic drug testing on the oral fluid samples. According to the permit issued by the NYSDOH under which Bendiner was operating at the time the subject testing was performed and reported, clinical testing was intended to “assist medical professionals in patient management,” whereas forensic testing “generated] results in a manner intended to insure acceptance into evidence in a court of law.” Among other things, forensic testing involves “protocols for specimen chain-of-custody and laboratory security.” The contract between Bendiner and Day-top prohibited Bendiner from reporting the results of its drug testing to any entity other than Daytop, and further provided that Bendiner would only perform confirmatory testing upon a specific request made by Daytop.

In conformance with the contract, Bendiner performed oral fluid testing on specimens collected by Daytop from the plaintiffs. The specimens obtained from the plaintiffs were positive for certain illegal drugs. Bendiner reported the results to Daytop, and, at Daytop’s request, Bendiner performed confirmatory gas chromatography and mass spectrometry testing. Day-top then reported the confirmed positive results of the testing done on Braverman’s sample to the drug treatment part of the Family Court, Rockland County, also known as the Rockland County Family Treatment Court. As a result, a violation petition was filed against Braverman, and the return of her children to her custody was delayed for approximately five months. Daytop also reported the confirmed positive results of the testing done on Lohmeyer’s sample to the drug treatment part of the County Court, Rockland County, also known as the Rock-land County Drug Court. Consequently, Lohmeyer’s participation in the drug treatment court program was terminated, and she was incarcerated for approximately five months.

The plaintiffs subsequently commenced this action to recover damages against Bendiner and Daytop. As clarified by the plaintiffs’ counsel during the course of the litigation, the plaintiffs do not challenge the manner in which Bendiner performed its clinical oral fluid testing. The plaintiffs acknowledged that Bendiner performed the testing “in a manner suitable for clinical purposes,” and that the “validity of its testing procedures” were not at issue. The plaintiffs alleged, however, that Bendiner was required, and failed, to label its oral fluid test results so as to indicate that the results were to be used for clinical purposes only. The plaintiffs relied on the opinion of Terry D. Hall, Ph.D., who averred that the reports of the test results issued by Bendiner were required to include the following disclaimer: “For Diagnostic Treatment Plan Development and Counseling Purposes Only: Not for Workplace or Forensic Purposes.” The plaintiffs further contended that Daytop was required to provide a similar disclaimer when reporting the results to the drug treatment courts. At its essence, the plaintiffs’ contention is limited, to wit: in the absence of such a label or disclaimer, the defendants failed to exercise reasonable care in reporting the positive drug test results.

Bendiner and Daytop separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. They argued that they had no duty to the plaintiffs to provide a label or disclaimer indicating that the results were to be used only for clinical purposes, and, in any event, that any breach of such a duty was not the proximate cause of the plaintiffs’ injuries.

The Supreme Court granted those branches of the defendants’ motions which were for summary judgment dismissing the complaint insofar as asserted against each of them. Relying on this Court’s opinion and order in Landon (91 AD3d 79), the Supreme Court concluded that Bendiner owed a duty of care to the plaintiffs, and noted that there was no authority establishing a “corresponding or analogous duty on the part of Daytop.” The Supreme Court did not determine whether or not Daytop had any such duty. Further, the Supreme Court did not make a finding that Bendiner breached a duty of care. Rather, it held that, in the event that there was any such wrongdoing by Ben-diner or Daytop, any breach of a duty of care was not a proximate cause of the plaintiffs’ alleged damages. In this respect, the Supreme Court determined that the unforeseeability of the outcome of the judicial proceedings in the neglect proceeding against Braverman and in the criminal action against Lohmeyer, particularly with respect to the admissibility of the drug test results, broke the chain of legal causation.

We agree that the defendants’ motions should have been granted and the complaint dismissed, but for a reason different from that relied upon by the Supreme Court. We conclude, more fundamentally, that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only. Thus, we affirm the judgment on that basis, without reaching the secondary question of proximate cause.

It is axiomatic that the breach of a duty owed by a defendant to a plaintiff is essential to recovery in a negligence action (see Pulka v Edelman, 40 NY2d 781, 782 [1976]; Palsgraf v Long Is. R.R. Co., 248 NY 339, 342 [1928]). In the absence of a legislative declaration, it is for the courts to determine, as a matter of policy, “whether the risk to which one person exposes another is within the protection of the law” and if so, to declare the existence of a duty (De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055 [1983]; see Lauer v City of New York, 95 NY2d 95, 100 [2000]; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]; Turcotte v Fell, 68 NY2d 432, 437-438 [1986]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 13-14 [2011]). In answering that question, the courts may consider “logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d at 585).

In Landon, this Court was “called upon to determine whether a drug testing laboratory may be held liable in tort to the subject of a drug test for negligently testing that subject’s biological specimen notwithstanding the absence of a formal contractual relationship” between the laboratory and the test subject (Landon, 91 AD3d at 80). The plaintiff in Landon alleged that the defendant laboratory had failed to use proper and scientifically reliable testing protocols and that, as a consequence, its testing yielded a false positive result, as compared to two contemporaneous drug screens performed by a laboratory selected by the plaintiff, which were negative.

In determining whether a duty was properly imposed upon the laboratory, this Court weighed the burden of imposing such liability against “the benefits of stemming negligent drug testing” (id. at 88). The Court recognized “[t]he importance attached to the results of drug tests” (id.), and opined that it was “paramount that incentives exist to minimize the risk of erroneous test results” (id. at 89 [emphasis added]). Accordingly, this Court held that “a drug testing laboratory may be held liable in tort to the subject of a drug test for failing to use reasonable care under the circumstances, notwithstanding the absence of a formal contractual relationship between the drug testing laboratory and the subject of the drug test” (id. at 90).

The Court of Appeals affirmed this Court’s opinion and order in London and reasoned that, accepting the allegations of the complaint as true, the laboratory’s “releas[e] [of] a report finding that plaintiff had tested positive for [drug use]” would constitute the “ ‘launching] [of] a force or instrument of harm’ ” (Landon, 22 NY3d at 6, quoting Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). The Court of Appeals also concluded that there were “strong policy-based considerations that counseled] in favor of finding that [the laboratory] owed a duty to plaintiff,” since “the release of a false positive report [would] have profound, potentially life-altering, consequences,” “[t]he laboratory [was] in the best position to prevent false positive results,” and “there [was] no apparent statutory remedy for a victim of negligence . . . caused by a false positive drug test” (Landon, 22 NY3d at 6, 7). Thus, the Court held that the laboratory had “a duty to the test subject to perform his drug test in keeping with relevant professional standards,” despite the lack of a contractual relationship (id. at 6-7).

London makes clear that there is a duty running from a drug testing laboratory to the subject of a drug test despite the lack of a contractual relationship between those parties. Further, it cannot be gainsaid that Daytop owes some duty of reasonable care to individuals it treats. The question presented here, as to both defendants, concerns the proper scope of that duty. More particularly, the question is whether the defendants’ duty of reasonable care includes the duty to label or place a disclaimer on a report, so as to indicate that the results are to be used only for clinical purposes.

Both the Court of Appeals’ decision and this Court’s decision in London focused on the laboratory’s alleged negligent performance of drug testing, which yielded false positive results. Further, the Court of Appeals described the duty imposed on a laboratory as a duty “to perform [a] drug test in keeping with relevant professional standards” (Landon, 22 NY3d at 6-7). Here, as previously explained, the plaintiffs acknowledge that the validity of Bendiner’s testing procedures is not at issue, and admit that the clinical testing was properly performed. Moreover, there are no professional standards implicated in this case. While the plaintiffs’ expert conclusorily asserted that the absence of a disclaimer or label was a departure from accepted scientific procedures, that contention is unsupported by reference to statutory, regulatory, or professional standards and, as such, it is without probative value (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Dmytryszyn v Herschman, 98 AD3d 715 [2012]). Thus, the duty set forth in London is not directly applicable in the present case.

Moreover, the reasoning employed in London cannot be extended to the present circumstances. The Court of Appeals, in imposing a duty upon the laboratory in favor of a party with whom it had no contractual relationship, relied, in part, upon the exception to the rule against such liability for conduct that constitutes launching a force or instrument of harm (see Landon, 22 NY3d at 6, citing Espinal, 98 NY2d at 141-142). However, in applying that exception in prior cases, the courts have distinguished between situations where a “putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm” and those in which such a party has merely “stopped where inaction is at most a refusal to become an instrument for good” (Moch Co. v Rensselaer Water Co., 247 NY 160, 167, 168, 169 [1928] [the defendant could not be held liable in tort because its “negligent omission” constituted only “the denial of a benefit,” not the launching of a force of harm]; see Church v Callanan Indus., 99 NY2d 104, 112 [2002] [“failure to install the additional length of guiderail did nothing more than neglect to make the highway . . . safer”]; see also Bono v Halben’s Tire City, Inc., 84 AD3d 1137, 1139 [2011] [defendant automobile repair shop’s failure to warn a party that his vehicle brakes could fail if he did not replace the master cylinder on his car did not constitute the launching of a force or instrument of harm]; Altinma v East 72nd Garage Corp., 54 AD3d 978, 980 [2008] [a defendant’s alleged negligent failure to warn the decedent’s employers regarding man-lift or elevator inspection requirements amounted to “a finding that (the defendant) merely may have failed to become ‘an instrument for good,’ which (was) insufficient to impose a duty of care”]). In other words, liability will not be imposed where a party’s conduct “is at most the denial of a benefit” (Moch Co. v Rensselaer Water Co., 247 NY at 169; see Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]).

Here, there being no claim that the defendants released a false positive drug test, the plaintiffs seek to hold the defendants liable for the mere denial of a benefit — a label or disclaimer as to the clinical nature of the results that would alert attorneys and courts to the inadmissibility of the test results as evidence in court (see Altinma v East 72nd Garage Corp., 54 AD3d at 980; see also Bono v Halben’s Tire City, Inc., 84 AD3d at 1139). Imposing liability upon the defendants for the failure to confer this benefit would enlarge the duty imposed in Landon in such a manner as to unduly extend the zone of liability (Moch Co. v Rensselaer Water Co., 247 NY at 168-169).

Further, we acknowledge that it was foreseeable, in light of the special conditions imposed by the respective drug treatment courts and the authorizations for release of records executed by the plaintiffs in connection with those proceedings and with the treatment at Daytop, that the results of the plaintiffs’ drug testing would be submitted to the relevant court. Nevertheless, “the boundaries of duty are not simply contracted or expanded by the notion of foreseeability” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d at 586; see Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]; Pulka v Edelman, 40 NY2d at 782). We must also consider “contractual assumptions of responsibility” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d at 585), and the nature of the plaintiffs’ relationship with the defendants, because “risk imports relation” (id. [emphasis omitted], quoting Palsgraf v Long Is. R.R. Co., 248 NY at 344).

The nature of the relationship between the plaintiffs and the defendants is a particularly important consideration in defining the scope of the duty of care in this case. Although “[l]iability in negligence may . . . rest on some . . . nondisclosure on the part of defendant by which plaintiff or a third party is misled,” to impose such liability “the relationship of the parties . . . must be such that . . . the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care” (Eiseman v State of New York, 70 NY2d 175, 187, 188 [1987] [internal quotation marks omitted]; International Prods. Co. v Erie R.R. Co., 244 NY 331, 338 [1927]). “The basis of liability is the fact that the . . . nondisclosure has led the person to whom it was made to forego [sic] action that might otherwise have been taken for the protection of the plaintiff ” (Eiseman v State of New York, 70 NY2d at 187).

There was no such relationship between the plaintiffs and Bendiner and Daytop in this case. In the absence of privity of contract between the plaintiffs and Bendiner, and the absence of an undertaking by Bendiner in its contract with Daytop requiring Bendiner to affirmatively label the test results as clinical in nature, there is nothing to reasonably suggest that Bendiner was taking action to protect any of the test subjects, including the plaintiffs, from the admission in court of the results of drug testing that was performed in accordance with accepted professional clinical standards. Accordingly, there was no basis for the plaintiffs to rely upon Bendiner for that purpose.

As to Daytop, the plaintiffs, like other clients at drug treatment centers, enrolled in Daytop seeking clinical help for their respective drug dependencies. Thus, although the plaintiffs enrolled in the Daytop program and agreed to random testing and the release of information in order to comply with certain conditions imposed by the drug treatment courts, they are, in essence, no different than those of Daytop’s clients who are not involved with the court system. They all want and need treatment. To treat the plaintiffs differently would be to cynically suggest that the plaintiffs attended Daytop only to avoid more severe sanctions, as opposed to enrolling for the salutary purpose for which the drug treatment courts were created, which is to provide an integrated program to address substance abuse issues. Daytop fulfilled its role by properly performing drug testing on the plaintiffs so as to monitor their treatment progress. There is nothing to reasonably suggest that Daytop undertook to protect the plaintiffs from a court’s consideration of the results of drug testing, which was performed in accordance with accepted professional clinical standards, or that the plaintiffs had a right to rely upon Daytop to so protect them.

Indeed, in Landon, the Court of Appeals specifically recognized that a drug testing laboratory was “in the best position to prevent false positive results ... in keeping with relevant professional standards” (Landon, 22 NY3d at 6-7). In the present context, however, it is clear that the social benefit to be gained by imposing the duty that the plaintiffs now suggest should be imposed upon the defendants is achieved by the nature of the adversarial process already in place. The plaintiffs, and others similarly situated, have the benefit of attorneys who are directly responsible for representing their interests in court, and the benefit of the members of the judiciary, who are the gatekeepers directly responsible for protecting the integrity of the court proceedings. Accordingly, there is no overriding social benefit to be achieved from imposing such a duty on laboratories and drug treatment centers beyond the duty to perform the tests in accordance with professionally accepted standards and to report the tests accurately.

My concurring colleagues recognize the significance of the role of counsel and the courts in preventing a court’s consideration, for evidentiary purposes, of test results that did not meet forensic standards, inasmuch as they conclude that counsels’ failures to investigate and object to the courts’ consideration of the drug test results, and the courts’ determinations to rely on those results, were so significant as to break the causal nexus between Bendiner’s and Daytop’s alleged negligence and the plaintiffs’ injuries. It would be incongruous to make the policy-laden decision to require laboratories and drug treatment centers to issue labels and disclaimers as to the nonforensic nature of drug test results in order to prevent the use of such tests in court and then to effectively absolve them of liability based upon the role of counsel and the courts in the gatekeeping process. The willingness of our concurring colleagues to so absolve a laboratory and drug treatment center from liability calls into question the utility of the duty they seek to impose. As this case demonstrates, that duty, under the analysis suggested by my concurring colleagues, would be illusory.

Moreover, as alluded to above, the performance and use of drug tests by laboratories and treatment centers are not limited to individuals who are the subject of court proceedings. Rather, many clinical drug test results are received by treatment centers for individuals who are simply seeking treatment independent of any court proceedings. To place a broad duty on laboratories and treatment centers that would only serve to protect a fraction of the population they serve fails to narrowly tailor the scope of duty so as to properly balance the social benefit of the duty with its costs and burdens (see generally Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 236 [2001]).

In sum, Landon cannot be read to affirmatively require a laboratory or drug treatment center to label drug tests or give a disclaimer so as to indicate that the tests are only to be used for clinical purposes. Thus, Landon does not dictate the result in this case. Further, since the social benefit of protecting the population of drug-test subjects who are involved with the drug treatment courts from having nonforensic drug tests admitted in court is satisfied by the adversarial process, it is inappropriate to extend the scope of the duty of a laboratory and drug treatment center to include the duty to provide such labels and disclaimers.

Accordingly, we affirm the judgment in favor of Bendiner and Daytop, dismissing the complaint, on the basis that they had no duty, as the plaintiffs allege, to label the plaintiffs’ drug test results, or to provide a disclaimer indicating that the results were to be used for clinical purposes only.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on appeal from the judgment (see CPLR 5501 [a] [1]).