Maher v. New Orleans Police Department

788 So. 2d 1250, 2000 La.App. 4 Cir. 1751, 2001 La. App. LEXIS 1697, 2001 WL 670144
CourtLouisiana Court of Appeal
DecidedMay 30, 2001
DocketNo. 2000-CA-1751
StatusPublished
Cited by1 cases

This text of 788 So. 2d 1250 (Maher v. New Orleans Police Department) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maher v. New Orleans Police Department, 788 So. 2d 1250, 2000 La.App. 4 Cir. 1751, 2001 La. App. LEXIS 1697, 2001 WL 670144 (La. Ct. App. 2001).

Opinion

I,WALTZER, Judge.

STATEMENT OF THE CASE

Clifford Maher, an officer of the New Orleans Police Department (NOPD) with permanent status, appeals from a decision of the Civil Service Commission (the Commission), City of New Orleans, denying his appeal from his termination by NOPD 1 [1251]*1251Finding no error of fact or law in the Commission’s decision, we affirm.

STATEMENT OF FACTS

The parties agreed that Maher’s termination was based on a positive drug screen for cocaine. The test was administered in connection with Maher’s having filed a report of an employment-based injury. Maher alleged that the test result was a “false positive”, caused by his dentist’s having administered Lidocaine less than forty-eight hours prior to the drug test.

Sergeant Lawrence Miller, an NOPD sergeant operating as an investigator for NOPD’s Public Integrity Division, testified that as a result of a drug test | ^administered in connection with NOPD’s substance abuse testing policy, Maher tested positive for cocaine metabolites. NOPD conducted a Bureau Chief hearing, as a result of which Maher was terminated from his position with NOPD. Sergeant Miller attempted unsuccessfully to contact Maher’s dentist, Roberto Llopis, prior to submission of the report. Maher did not offer any other mitigating factors, and was directed to address the “false positive” issue with the City’s medical review officer, Dr. Warren McKenna. Subsequently, Sergeant Miller spoke with Dr. Llopis, who challenged Dr. McKenna’s expertise but did not offer a scientific refutation of Dr. McKenna’s opinion.

Ronnie Calhoun, a medical office assistant employed by the Tulane University Hospital and Clinic testified that, among his duties in the Employee Health and Occupational Medicine department, he performs drug screens. The hospital’s methodology and chain of custody of the specimen are not at issue herein.

Stacey Nash, screening supervisor' for Kroll Laboratory, testified that he reviews data packs that come off the chemistry analyzer, reviews calibration control on patient samples and determines which samples go on for further testing. A suspect sample is any sample whose quantitation is considered positive according to manufacturer and client guidelines. Suspect samples are re-tested. He identified Maher’s sample as suspect, requiring further testing for opiates and benzoylecgonine, the main urinary metabolite of cocaine.

| .-¡Cynthia Howard, an extractor at Kroll Laboratory, testified that she matches the bar code on a specimen tube with the number on the aliquot sheet, then breaks down the sample to go on the testing machines. She extracted the drug, returned it to temp storage, put it in a vial, put it in a heat block for thirty minutes (derivatized it) and matched it with the sample of Maher’s specimen. This was the second phase of the drug test.

Patricia Pizzo, Director of Toxicology for Laboratory Specialists Inc. (LSI), was accepted by both counsel as an expert in toxicology. She identified the internal and external chain of custody documentation, copies of analytical data, instrument maintenance record, and copy of the final report provided to the City of New Orleans with her signature as certifying scientist and her curriculum vitae. She reviewed all the analytical data and signed out a positive report on Maher’s drug test. The test discovered benzoylecgonine, which Pizzo identified as the primary metabolite of cocaine.

Pizzo reviewed a letter from Dr. Llopis, in which he said that he administered the following drugs to Maher on the evening of 6 July 1999: 144 mg of 2% Lidocaine 1:100,000 Epinephrine. He also prescribed Amoxicillin 500 mg, Vicodin E.S. for pain when not on duty, and Orudis 75 mg for pain when on duty. Pizzo testified that neither Lidocaine, Epinephrine, Vico-din, Amoxicillin nor Orudis would test positive for cocaine. According to Pizzo, the samples are molecularly and structurally different and give a different gas chroma[1252]*1252tography/mass spectrometry (GC/MS) fragmentation pattern. In her ^opinion, there is no way these drugs could show up as positive for benzoylecgonine. She testified that her opinion is supported in the pharmacological literature in CRC’s publication, “Mass Spectral Data of Drugs,” which lists very specifically the GC/MS fragmentation patterns. Both the Hewlett Packard and National Bureau of Standards mass spectral libraries clearly indicate that Lidocaine will not give the same fragmentation pattern as benzoylecgonine. To the same effect is “Pharmacology of Drugs” by Goodman and Gillman, which explains the breakdown of drugs, “The Isolation and Identification of Drugs” by E.C.G. Clark, and “Pharmacology of Drugs” by Dr. Ronald Basil. According to Pizzo, there are a number of publications that explain the metabolic pathways of the various anesthetic-type drugs such as cocaine and Lidocaine. She denied that there are “caine” products that cause false positives. She also testified that the metabolite for cocaine would clear the body within approximately twenty-four to forty-eight hours, depending chiefly on the amount of fluids consumed by the person tested.

Maher testified that he has been an NOPD employee for twenty-five years, and has not been disciplined within the last three years. According to Maher, he saw Dr. Llopis on 6 July 1999 and was injected with Lidocaine and “cut on”. He returned to work the next day and, while working, he hit his knee on a car bumper. The next day he was in increased pain, went back to the Fourth District Police Station and reported the injury to his supervisor, Lt. William Johnson. Lt. Johnson referred him to Sergeant John Gagliano, who typed a first report of injury. Maher |fitestified that he knew at that time he would have to take a drug screen before he could be treated, and had no problem with that policy. He gave a specimen, poured it into a cup and sealed it.

Maher identified a letter of 21 July 1999 from Dr. Warren McKenna of the City of New Orleans Health Department advising that Maher’s urine sample contained ben-zoylecgonine, a cocaine metabolite, as determined by immunoassay and confirmed by GC/MS. Maher paid for an independent drug test on 29 July 1999, the results of which were negative.

Sergeant Cyril Davillier, a thirty-two year veteran of the NOPD, testified that he worked with Maher for several years and asked for him to work in his narcotics unit. According to Sergeant Davillier, Maher was a good, dependable officer. Officer Wallace Dennis, a twenty-seven year NOPD veteran, testified that he was Maher’s co-worker for eight to ten years and his friend for thirty years. During that time, he knew Maher to be a dedicated officer who did all the jobs to which he was assigned.

The case was left open for Dr. Llopis’ testimony; however, Maher did not offer that testimony.

STANDARD OF REVIEW

In Smith v. New Orleans Police Department, 99-0024, pp. 5-6 (La.App. 4 Cir. 9/22/99), 743 So.2d 834, 837-838, writ denied, 99-3242 (La.1/14/00), 753 So.2d 221, this Court set forth the standard of appellate review regarding civil service disciplinary cases as follows:

In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984). First, as in other civil matters, deference will be given to the factual conclusions of the Commission.

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788 So. 2d 1250, 2000 La.App. 4 Cir. 1751, 2001 La. App. LEXIS 1697, 2001 WL 670144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maher-v-new-orleans-police-department-lactapp-2001.