Private laboratories and drug treatment centers have no duty to disclose that their testing meets only clinical and not forensic standards, a Brooklyn appellate panel has held.
In a lengthy opinion Wednesday, the Appellate Division, Second Department, declined to expand on a 2011 decision, Landon v. Kroll Laboratory Specialists, 91 AD3d 79 (2011), which held that a man whose probation was impacted by an erroneous drug test could pursue a negligence claim against the private lab that performed the test, despite the lack of any contractual relationship between the laboratory and the subject of the test.
The ruling means that drug court defendants can be deprived of their liberty and respondents in family court matters can be stripped of their parental rights on evidence that may not meet the heightened standards usually applicable in legal proceedings, according to an attorney for the plaintiffs.
Braverman v. Bendiner & Schlesinger, 2014 NY Slip Op 05618, involved two women who were adversely affected by indisputably accurate drug tests performed by a state-certified lab.
One of the women was the target in a child protective proceeding in Rockland County. The other was a criminal defendant, also in Rockland County. Both were enrolled in the Daytop Village drug treatment center, both underwent drug testing by the now-closed Bendiner & Schlesinger lab, and both failed their tests.
Based on the test results, the woman in the Family Court matter lost custody of her children for five months and the drug court defendant was thrown out of the program and incarcerated for several months.
Neither of the women challenged the accuracy of the test results. Rather, they claimed that the laboratory, in reporting the results, had a duty to advise that it had conduced only a “clinical” test, and did not follow the stricter chain-of-custody and related procedures required for a “forensic” test. The women argued that the laboratory should have included a disclaimer that the tests were conducted solely for diagnostic and counseling purposes, and not for workplace or forensic purposes.
Supreme Court Justice Thomas Walsh in late 2011 held that Bendiner did indeed owe a duty of care to the plaintiffs, but dismissed the case on the grounds that the lab’s failure to include a disclaimer was not the proximate cause of the alleged injury.
On Wednesday, the Second Department upheld the dismissal of the lawsuit, but rejected Walsh’s conclusion as to the duty of care.
Justice Peter Skelos (See Profile), in the main opinion, said the relief sought by the plaintiffs would have required an “unwarranted expansion” of Landon, a decision that the Court of Appeals upheld by a slim 4-3 margin (see Landon v. Kroll Lab., 22 NY3d 1, 2013).
“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,” Skelos said in an opinion joined by justices Reinaldo Rivera (See Profile) and Sheri Roman (See Profile). “Imposing liability on the defendants for the failure to confer this benefit would enlarge the duty imposed on Landon in such as manner as to unduly extend the zone of liability.”
Skelos found “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.”
Justices Thomas Dickerson (See Profile) and Plummer Lott (See Profile) supported the result, but would have imposed on both the lab and the drug treatment center the duty to disclose the clinical nature of the tests.
Dickerson and Lott, however, agreed with the trial court that the failure to disclose was not the proximate cause of the injuries and therefore the plaintiffs were not entitled to relief. They suggested that the plaintiffs’ attorneys and the trial judges were to blame.
“The failure of plaintiffs’ attorneys to investigate the nature of the test results and object to their consideration by the drug treatment courts, and those courts’ determinations to credit the probative value of the results of those drug tests, were independent acts far removed from the alleged negligence of the defendants in failing to label the test results,” Dickerson wrote in a concurring opinion joined by Lott. “Accordingly, I conclude that the acts of the attorneys and the judges were superseding acts, breaking the causal nexus.”
In response, Skelos said 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.”
He added: “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.”
The appeal was argued before Skelos, Dickerson, Lott and Roman. Rivera was vouched in for the decision.
Attorneys Robert Isseks of Middletown and Kevin Bloom of Bloom & Bloom in New Windsor represented the plaintiffs on the appeal. Jacqueline Mandell, a partner at Kaufman Borgeest & Ryan in Valhalla argued for Bediner & Schlesinger. Michael Brown and Edward Benson, both partners at Nicolletti Gonson Spinner in Manhattan, represented Daytop Village.
Mandell said the ruling is “absolutely the right decision.”
“There shouldn’t be any liability against the lab my office represents, whether it is a determination that there is no duty of care to issue a disclaimer or warning, or whether it’s a determination that the adversarial process breaks the chain of causation,” Mandell said. “We argued both those issues on the appeal and we are pleased that, although divided, the court obviously adopted all of our arguments.”
Isseks said he plans to seek leave to the Court of Appeals.
“The issue the Court of Appeals should decide is whether or not the drug testing laboratory has a duty to warn that its clinical tests should not be used for forensic purposes, and whether that duty comes within the Court of Appeals holding in Landon,” Isseks said.
Isseks said the holding in Landon that laboratories must report accurately presupposes that they must also report thoroughly. Neglecting to disclose that the testing was not carried out under forensic standards constitutes a procedural failure, he said.
As a result of Braverman, Isseks said, criminal defendants could be incarcerated and parents lose their parental rights on evidence that would not normally be admissible in court.