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The federal scheme for the drug testing of transportation employees does not pre-empt a state common-law cause of action brought for a false positive drug test, an Eastern District of New York judge has ruled. Judge Frederic Block, ruling on an issue that has divided some circuit courts, found that the pre-emption language of the Federal Omnibus Transportation Employee Testing Act and rules passed to implement the act make clear that the federal government intended only to prevent state or local law from interfering with its drug testing regime. The ruling came in the case of Drake v. Laboratory Corp. of America Holdings, 02-CV-1924, the latest filing in the 10-year effort of former Delta Air Lines flight attendant Richard W. Drake to clear his name. Drake lost his job in 1993 because he allegedly failed a drug test required by OTETA. He claimed the test was a false positive, the result of a series of errors in handling the sample and the alteration of test results. He also claimed that the false positive contradicted other tests on the same sample, which clearly showed a lack of narcotics or adulterants in his system. When he was fired after refusing to resign, Drake claimed, he asked the defendants for records relating to his drug test, but he was told the records had either been lost or destroyed. After several rounds of litigation, including complaints to the Federal Aviation Administration, Drake was faced with the lab company’s motion to dismiss his federal claims. The company also argued that Drake’s state claims, which included negligence, spoliation and intentional infliction of emotional distress, were pre-empted by both OTETA and the language of rules adopted pursuant to the act by the FAA. Block said the only federal circuit courts to rule on the issue of pre-emption in the drug testing arena split on the issue. The 5th U.S. Circuit Court of Appeals, in Frank v. Delta Airlines Inc., 314 F.3d 195 (2002), found in favor of pre-emption. But the 9th Circuit, in Ishikawa v. Delta Airlines Inc., 343 F.3d 1129 (2003), just 10 weeks ago found that a state negligence claim against a testing lab was neither expressly nor impliedly pre-empted. Noting that district courts have also been divided on the issue, Block said there was “significant regulatory and legislative history, which neither Frank nor Ishikawa has plumbed” that addresses whether the FAA or Congress sought to pre-empt state common-law tort remedies. The FAA, in a 1987 statement leading up to the adoption of its pre-emption rule on drug testing in 1988, said, “This rule pre-empts any state or local law that would prohibit or limit drug testing required under the rule.” Thus, Block said, “the avowed pre-emptive purpose was not aimed at barring suits for common law torts; it was intended to prevent any state from prohibiting or limiting the drug testing required by the FAA.” Moreover, he said, Congress reinforced and confirmed these regulations when it passed OTETA in 1991. Block said a Senate report leading up to the passage expressed concern that the new statute and the FAA’s regulations on testing would be affected by several states that had passed limitations prohibiting or restricting drug testing. “In the present case, both the statutory and regulatory language, and their collective underlying purpose, compel the conclusion that neither the pre-emption provisions nor the drug testing regulations were expressly or impliedly intended to preclude any common law tort claims,” he said. ACCEPTABLE REMEDY After parsing the language of U.S. Supreme Court case law on the issue of pre-emption, Block said one key point is that state claims do not conflict with the federal regulatory scheme, and “what is common to all of Drake’s common law claims is that they need not be dependent on the violation of any particular regulation; rather, they could be separately actionable based on traditional state tort law.” “To hold otherwise would mean that drug testers would invariably be immunized from any compensatory liability for their misbehavior,” he said, because there is no private right of action for violation of drug testing regulations, and “constitutional claims will rarely be cognizable.” Block also noted that the sole recourse for a plaintiff under a strict pre-emption format would be to file a complaint with the FAA, which only has the power to proscribe future violations and cannot grant damages. “Given the egregious nature of a false positive test report, this is simply not an acceptable remedy,” Block said. “It is inconceivable that Congress would want to bar – and it has not – one who has been falsely accused of illicit drug usage from seeking common law compensation from those responsible for devastating his or her life.” Samuel O. Maduegbuna of Maduegbuna Cooper represented the plaintiff. Demetrios C. Batsides of Gibbons Del Deo Dolan Griffinger & Vecchione represented Laboratory Corp. of America Holdings. Jeffrey Hurd of Phelan Burke & Scolamiero represented Northwest Toxicology Inc. This article originally appeared in the New York Law Journal , a publication of American Lawyer Media.

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