OPINION Guillermo M. Mendez, a pipefitter, lost his job after his random drug test yielded a positive result for cocaine. He sued the trade association that collected his biological samples and the drug testing laboratory that performed the test. The trade association, Houston Area Safety Council, Inc. (“HASC”), and the drug testing laboratory, Psychemedics, Inc. (“Psychemedics”), moved for summary judgment against Mendez. The trial court found that neither HASC nor Psychemedics owed a duty of care to Mendez, granted their summary judgment motions, and issued a take nothing judgment in favor of Psychemedics and HASC. Mendez appeals and contends that the trial court erred by finding that neither entity owed him a duty of care in their collection and analysis of his hair sample. We agree with Mendez and reverse the judgment of the trial court. Background Mendez was formerly employed by Turnaround Welding Services, Inc. (“Turnaround Welding”). Turnaround Welding’s customer, Valero, required that all workers assigned to its jobsite submit to a drug and alcohol screening. Mendez was assigned to Valero’s jobsite. HASC collects biological samples for testing for several employers. Pursuant to Turnaround Welding’s instructions, Mendez reported to HASC on September 15, 2016, to provide samples for drug and alcohol testing. While there, Mendez provided urine and hair samples and performed an alcohol breathalyzer test. A HASC employee collected Mendez’s hair sample and filled out Psychemedics’s Forensic Drug Testing Custody and Control Form. The form has a unique bar code and serial number used to ensure a test subject’s sample is not confused with another person’s sample. Mendez’s hair sample was taken from his chest because the hair on his head was too short for sampling. Mendez observed the HASC employee use a razor to cut the chest hair and place it in a piece of aluminum foil. The employee then placed the foil in an envelope called a “Sample Acquisition Card.” The card was sealed with a tamper-evident seal. The HASC employee placed a barcode sticker from the custody and control form on the card, Mendez initialed the card confirming it was his hair inside, and the employee placed the sealed card in a plastic bag. The plastic back was then sealed. which itself was then sealed. Mendez also signed the control form at the end of the collection process, certifying that he had provided the sample in the card, the sample was cut close to his skin, and he witnessed the HASC employee seal the sample in the card. The hair sample was sent to Pyschemedics’s laboratory for testing. Psychemedics is a drug testing laboratory that is licensed and certified to perform forensic toxicology testing by several entities, including the U.S. Department of Health & Human Services, Centers for Medicare & Medicaid Services, Clinical Laboratory Improvement Amendments, and the College of American Pathologists. It is licensed by several states, including Texas. Psychemedics’s testing services are used by a number of employers in their drug testing programs. Psychemedics uses a two-part test for cocaine detection. First, the hair sample is analyzed for the presence of cocaine through a screening process using an enzyme immunoassay test. If the result is negative, the test is reported as negative, and no additional testing is performed. If the result of the screening process is positive, the sample is considered “presumptive positive,” and a second analysis is utilized. The sample undergoes an extensive multi-wash procedure to rule out external contaminants and is tested using Liquid Chromatography/Mass Spectrometry/Mass Spectrometry, also known as “LC/MS/MS.” If the LC/MS/MS test does not detect the drug at or above the specified cutoff level of drug presence by concentration, the test is reported as negative. Mendez’s hair sample tested positive for cocaine at a level over three times the specified cutoff level for presence of cocaine in a hair sample. It also tested positive for cocaine metabolites, which are produced in the human body after ingestion of cocaine. A few days after drug testing, Mendez reported to work at Valero. After working two days, he was instructed by a Valero employee that he needed to submit to an additional drug screen. He provided a second hair sample on site on September 23, 2016. This sample was collected by DISA Global Solutions, Inc. (“DISA”) and used hair from his head rather than chest. The sample was sent to Psychemedics for testing and tested negative for cocaine. On October 7, 2016, Mendez was terminated due to the first positive drug test and told he could return to work if he “fixed the issue.” Mendez obtained a third hair follicle test at his own expense. This test was sent to a different laboratory and rendered a negative result. He was also provided an opportunity to rehabilitate through a substance abuse course and mental health services. Once he completed those programs, Mendez was permitted to return to work, but Turnaround Welding did not allow him to go back to work on Valero’s site. He was not assigned to a new jobsite and received unemployment compensation benefits for a few months before he found a new employer. Mendez sued HASC and Pyschemedics alleging that they were negligent in administering and analyzing the first hair follicle drug test and that as a result of their negligence, he lost his job. Psychemedics and HASC filed traditional and no- evidence motions for summary judgment. They each argued that they did not owe Mendez a duty of care under Texas law. They further argued that even if they did owe a duty of care, Mendez had no evidence that they breached any standard of care. The trial court heard oral argument on the traditional summary judgment motion concerning whether Psychemedics and HASC owed Mendez a duty of care. The court held that HASC and Psychemedics did not owe Mendez a duty of care, granted the motions for summary judgment, and dismissed Mendez’s claims with prejudice. Because the trial court decided no duty was owed, the trial court did not reach the issues of breach, causation, or damages. Mendez appealed. Summary Judgment A. Summary Judgment Standard of Review On appeal, Mendez challenges the propriety of the trial court’s take-nothing summary judgment on his negligence claims. We review summary judgments de novo. City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). As to the traditional grounds for summary judgment, HASC and Psychemedics bore the burden of showing that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); City of Richardson, 539 S.W.3d at 258–59. To meet this burden, Psychemedics and HASC were required to conclusively negate at least one essential element of each of Mendez’s negligence claims or conclusively prove all elements of an affirmative defense. See KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). “An issue is conclusively established ‘if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.’” Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017) (quoting Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998)). When reviewing the grounds for summary judgment, we take as true all evidence favorable to Mendez and indulge every reasonable inference and resolve any doubts in Mendez’s favor. Sommers v. Sandcastle Homes, 521 S.W.3d 749, 754 (Tex. 2017). Negligence and Legal Duty A negligence cause of action has three elements: (1) a legal duty, (2) breach of that duty, and (3) damages proximately resulting from the breach. See Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998); Ramirez v. Colonial Freight Warehouse Co. Inc., 434 S.W.3d 244, 249 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). While HASC and Psychemedics moved for summary judgment on both traditional and no-evidence grounds, the trial court granted their traditional motions for summary judgment on the issue of duty alone, without reaching breach, causation, or damages. The trial court specified that the “[c]ourt grants the traditional motions for summary judgment on the legal question of duty, finding that based upon current Texas common law that this court is required to follow the Defendants owed no duty of care to Plaintiff.” Accordingly, we review the summary judgment order on the question of duty, without reaching the other elements of a negligence claim.[1] Mendez alleges that HASC and Psychemedics owed him a duty of care (1) not to administer or analyze a hair follicle drug test they knew to be scientifically questionable; (2) to take reasonable precautions in the course of administering and analyzing a hair follicle drug test; (3) not to rely upon a hair sample drug test, as opposed to urinalysis, as the basis for a report of a positive drug test to his employer; (4) not to report the positive hair sample to his employer given the “questionable status” of the test. Texas Law Regarding Existence of a Duty The existence of a duty is a threshold issue in a negligence case. Helbing v. Hunt, 402 S.W.3d 699, 702 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). “A duty is a legally enforceable obligation to conform to a particular standard of conduct.” Id. (internal quotation and citation omitted). Whether a duty exists is a question of law. See Mission Petrol. Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003) (citing SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995)). We consider various interrelated factors in determining whether circumstances provide a basis for imposing a legal duty, “including the risk, foreseeability, and likelihood of injury weighted against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990), quoted in Mission Petrol., 106 S.W.3d at 710; see also RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 3 (2010) (“Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensure, and the burden of precautions to eliminate or reduce the risk of harm.”). Courts have also considered whether one party has superior knowledge of the risk or a right to control the actor whose conduct precipitated the harm. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); see also Helbing, 402 S.W.3d at 703 (stating that courts also consider “any other relevant competing individual and societal interest implicated by the facts of the case”). Preliminarily, Mendez casts his issue as one of first impression, contending that Texas courts have not decided whether third parties owe a duty of reasonable care in collection and analysis of drug tests that an employee is subjected to by his employer. HASC and Pyschemedics, citing SmithKline Beecham and Mission Petroleum, argue that the Texas Supreme Court has decided that third parties do not owe a duty to employees under similar circumstances. Mission Petrol., 106 S.W.3d at 710; SmithKline Beecham Corp., 903 S.W.2d at 351. While both cases address negligence claims arising from workplace drug testing, they are each distinguishable. In SmithKline Beecham, the plaintiff’s prospective employer contracted with SmithKline Beecham Clinical Laboratories, Inc. to perform its drug testing. 903 S.W.2d at 348. After the plaintiff’s urine tested positive for opiates, the employer withdrew its job offer. Id. Later, the plaintiff learned that consuming poppy seeds could lead to a false positive result and reapplied for the position, informing the prospective employer that she had taken one of her roommate’s Vicodin and had eaten several poppy seed muffins in the days before the test. Id. at 349. The employer again refused to hire her, this time citing her failure to disclose that she had taken Vicodin without a prescription. Id. The plaintiff sued the lab for negligence, claiming that it had breached a duty to disclose that ingestion of certain substances could cause a positive test result. The Texas Supreme Court held that an independent drug testing laboratory had no duty to warn job applicants that ingestion of poppy seeds or other substances could cause positive test results. Id. at 354–55. But the Court stated, “We emphasize that we have not considered whether a drug testing laboratory like [SmithKline] has a duty to use reasonable care in performing tests and reporting the results. [The plaintiff] does not claim such a duty in this case.” Id. at 355. In Mission Petroleum, the Court confronted the issue of “whether an employer owes a duty to an at-will employee to use reasonable care when collecting an employee’s urine sample for drug testing pursuant to DOT regulations.” 106 S.W.3d at 710. The Court rejected the notion that employers conducting in-house drug testing had a common-law duty to the employee based on the “significant avenues of redress” available under federal regulations. Id. at 713. These federal regulations are not at issue here. Our court has likewise ruled on a similar but not analogous issue related to third-party drug testing. In Sandoval v. DISA, Inc., our court upheld summary judgment in favor of a third-party administrator. Sandoval v. DISA, Inc., No. 01-17- 008646-CV, 2018 WL 6379665, at *7 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem. op.). Sandoval was employed by an industrial contractor in the petrochemical industry that had a drug, alcohol, and substance abuse policy. Id. at *1. Sandoval’s employer contracted with DISA to administer its drug and alcohol screening programs. Id. After he tested positive for cocaine, Sandoval sued DISA, the testing laboratories, and a medical review officer claiming, among other things, negligent sample collection and transport and negligent testing. Id. at *4. The trial court granted DISA’s motion for summary judgment. Id. at *4. On appeal, Sandoval argued that DISA owed a duty of care arising from a contractual or actual right of control that it exercised over the employer’s drug testing program, including when and how to test employee members. Id. at *7. We held that the undisputed evidence showed DISA did not assume any control over the collection or testing procedures and DISA had not assumed any extracontractual duty to either the employer or employees. Id. DISA’s conduct did not give rise to any duty to employees with respect to the implementation of the employer’s drug testing policy. Id. A close reading of Sandoval demonstrates that it is not applicable to the situation before us. Neither the Texas Supreme Court nor this court have determined whether a third party owes an employee a duty of reasonable care when conducting drug testing required by an employer. With this in mind, we consider Mendez’s claims against HASC and Psychemedics. Application of Law to Facts The gravamen of Mendez’s negligence claim lies in the specimen collection and testing procedures. He alleges that HASC had a duty to monitor collection procedures, and Psychemedics had a duty to monitor testing procedures to ensure accurate results. In reviewing whether HASC or Psychemedics owed a duty of care to Mendez, we read the record in the light most favorable to the non-movant, Mendez, with every reasonable inference favoring the non-movant and all doubts resolved against the movant. Sommers, 521 S.W.3d at 754. We do not determine whether Mendez has alleged facts to establish breach or causation, such as whether he has alleged facts to demonstrate that either HASC’s or Psychemedics’s actual collection and testing procedures caused a false drug test result. Applying the Phillips risk/utility factors here, we note that the risk, foreseeability, and likelihood of injury weigh in favor of imposing a duty on HASC and Psychemedics. Phillips, 801 S.W.2d at 525, quoted in Mission Petrol., 106 S.W.3d at 710. The Texas Supreme Court has acknowledged that “there is a serious risk that an employee can be harmed by a false positive drug test.” Mission Petrol., 106 S.W.3d at 714–15. Unlike in Mission Petroleum, there is no statutory or regulatory scheme that affords significant protection to employees like Mendez who are subject to random drug tests. Foreseeability of the risk is “the foremost and dominant consideration.” Phillips, 801 S.W.2d at 525 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 1987)); see also Nabors Drilling, U.S.A. Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (explaining that liability in negligence is grounded in public policy that holds individuals responsible for injuries caused by reasonably foreseeable consequence of their acts or omissions). Even when harm is foreseeable, as a general rule, “a mere bystander who did not create the dangerous situation is not required to become a good Samaritan and prevent injury to others.” Buchanan v. Rose, 159 S.W.2d 109, 110 (1942). Only when the party created the dangerous situation or when the party enjoys a special relationship with the other party giving rise to a duty will this general rule not apply. Id. HASC and Psychemedics argue against imposition of a duty because they did not enjoy a contractual relationship with employees like Mendez. But the risk to employees who submitted samples to HASC and Psychemedics was foreseeable. In this instance, HASC collected the specimen that was used to determine whether a positive result would be reported to Mendez’s employer. Psychemedics tested that specimen and reported its findings to Mendez’s employer. In general, both HASC and Psychemedics exercised control over an employee’s specimen during the testing process, and if either were negligent in collecting and testing specimen, it was foreseeable that the employee would likely suffer a direct economic injury, such as loss of employment. Haphazard or deficient collection methods on HASC’s part could contaminate samples for testing that could lead Pyschemedics to report inaccurate results. It is foreseeable that inaccurate results could lead to adverse employment consequences for employees.[2] Psychemedics’s process for testing hair samples creates a benchmark above which a sample is labeled “positive” and below which a sample is labeled as “negative.” Psychemedics, rather than the employer, decided the benchmarks and reported the results to the employer. While neither entity makes the ultimate employment decisions that result from the tests, each entity is responsible for using professional judgment to collect and deliver a test result. There is sufficient relationship between a specimen collector and a tested employee, such as Mendez, and between a laboratory and a tested employee to show that negligent collection or testing methods could foreseeably cause injury to a third-party employee. The third factor, likelihood of injury, is readily apparent. An employee who is terminated for a positive drug test faces immediate consequences, namely the loss of income and livelihood. He also faces long term, potentially career ending consequences. Many employment applications inquire about an applicant’s prior work history, including any instance of termination. Current employment will likely be terminated, and future prospects adversely impacted. See Webster v. Psychemedics Corp., No. 2010-01087-COA-R3-CV, 2011 WL 2520157, at *5 (Tenn. Ct. App. June 24, 2011) (holding that Psychemedics owed a duty of care to the employee it tested because as a company contracting with employers to perform substance abuse testing, Psychemedics “is aware that the likely effect of a false positive result is significant and devastating to the employee”). Mendez testified that the test result remains in his record and should he receive another positive result, he could face permanent inability to work pipefitting contracts. The injury has the potential to adversely impact both current and future employment. The social utility of drug testing, the magnitude of the burden of guarding against injury, and the consequences of placing the burden on third parties who collect and perform drug testing also weigh in favor of recognizing the duty of care. Mission Petrol., 160 S.W.3d at 710 (quoting Phillips, 801 S.W.2d at 525). Certainly, the social utility of ensuring that employees are able to perform their jobs drug-free is high, and employers have an interest in recruiting and retaining workers who are not under the influence of drugs. In this specific instance, a pipefitter under the influence of drugs could cause significant harm to himself or others while working near welders in a turnaround. He could also cause significant damage to property due to poor judgment caused by drug use. At the same time, the magnitude of the burden of guarding against negligent collection and assessment of biological samples is not insurmountable. Accuracy of collection and testing in this context is of paramount importance to the business success of both HASC and Psychemedics. HASC and Psychemedics have the greatest amount of control over the accuracy of their processes while employees subjected to their processes have little control over the procedures and methods used. Controlling their processes to ensure accurate results is a good business practice as employers have an interest in receiving accurate testing results. The burden of guarding against inaccurate results brings mere inconvenience to the testing and collection companies, while avoiding significant risk to those tested. Third-party drug testing companies are more likely to implement quality assurance measures to ensure accuracy if they owe a duty of care to an employee. The consequences of placing the burden on third parties weighs in favor of recognizing a duty. Without the recognition of a duty, drug testing companies are able to avoid liability for their own negligence. The collection company and the lab are more likely to implement their own measures to ensure the most accurate testing results if they owe a duty of care to an employee. HASC and Psychemedics are in the best position to guard against injury. They are solely responsible for the performance of the collection, testing, and quality control process. They are also better able to bear the burden financially than an individual employee harmed by a false positive report. We note that numerous other states have already recognized some duty running from drug testing companies to non-contracting individuals whose biological specimen were tested for the presence of drugs. See Shaw v. Psychemedics Corp., 826 S.E.2d 281, 284 n.5 (S.C. 2019) (noting trend across jurisdictions to recognize duty between testing companies and individual employees they test); Webster, 2011 WL 2520157, at *5–6 (Tennessee) (noting jurisdictions that have recognized the duty and holding that Psychemedics owed a duty of due care in administering a drug test to an employee); Sharpe v. St. Luke’s Hosp., 821 A.2d 1215, 1221 (Pa. 2003) (recognizing third-party entity’s duty of reasonable care in collecting and handling urine specimen for employment-related drug testing); Berry v. Nat’l Med. Servs., 205 P.3d 745, 751 (Kan. Ct. App. 2009), aff’d, 252 P.3d 287 (Kan. 2011) (distinguishing SmithKline Beecham and holding that testing service owed a duty of care to those whose specimens it tests to accurately report results); Duncan v. Afton, Inc., 991 P.2d 739, 745 (Wyo. 1999) (concluding drug testing company owed employee a duty of care in collecting, handling, and processing urine specimen). We hold that when an individual is required, as a condition of employment, to submit to drug testing, the law recognizes a duty to use reasonable care in collecting and processing biological samples between third-party collection and testing agencies and the employees they test. HASC and Psychemedics each owed a duty of care to Mendez. We note that the trial court granted summary judgment only on the issue of duty. For the court to reach the question of whether a duty is owed to Mendez by HASC or Psychemedics, Mendez was not required to demonstrate an actual failure or capability of producing a false result on the part of HASC or Psychemedics. We do not decide whether either entity failed to follow procedures or actually produced inaccurate results. The trial court, in deciding no duty existed, did not reach the question of whether Mendez alleged sufficient facts to create a genuine issue of material fact as to breach, causation, or damages. Therefore, we do not reach whether Mendez has alleged sufficient evidence to defeat summary judgment on those grounds. We sustain Mendez’s issue concerning duty and reverse the trial court’s summary judgment order. Conclusion We reverse the trial court’s summary judgment related to the issue of duty and remand for further proceedings in accordance with this opinion. Peter Kelly Justice Panel consists of Justices Kelly, Goodman, and Countiss.
