14‐4101‐cv
Pasternack v. Lab. Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
(Argued: June 2, 2015 Decided: October 6, 2016)
Docket No. 14‐4101‐cv
DOCTOR FRED L. PASTERNACK,
Plaintiff‐Appellant,
v.
LABORATORY CORPORATION OF AMERICA HOLDINGS, AKA LABCORP,
CHOICEPOINT, INC.,
Defendants‐Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
WESLEY, HALL, and CHIN, Circuit Judges.
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Appeal from a judgment of the United States District Court for the
Southern District of New York (Gardephe, J.) dismissing plaintiff‐appellantʹs
claims against drug testing companies for purportedly mishandling a random
drug test. On November 17, 2015, we certified two questions to the New York
Court of Appeals. Based on the Court of Appealsʹ response, we affirm the
judgment of the district court.
AFFIRMED.
CYNTHIA S. ARATO (Daniel J. OʹNeill, on the brief),
Shapiro, Arato & Isserles LLP, New York,
New York, for Plaintiff‐Appellant.
ROBERT I. STEINER (Sean R. Flanagan, on the brief),
Kelley Drye & Warren, LLP, New York,
New York, for Defendant‐Appellee Laboratory
Corporation of America Holdings.
FREDERICK T. SMITH, Seyfarth Shaw LLP, Atlanta,
Georgia, for Defendant‐Appellee LexisNexis
Occupational Health Solutions Inc. (formerly
ChoicePoint, Inc.).
PER CURIAM:
This appeal challenges a judgment of the United States District
Court for the Southern District of New York (Gardephe, J.) dismissing plaintiff‐
appellant Fred Pasternackʹs claims against defendants‐appellees Laboratory
Corporation of America Holdings (ʺLabCorpʺ) and ChoicePoint, Inc.
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(ʺChoicePointʺ), drug testing companies, for purportedly mishandling a random
drug test.
On November 17, 2015, we certified two questions to the New York
Court of Appeals pursuant to Second Circuit Local Rule 27.2 and New York
Codes, Rules, and Regulations Title 22, § 500.27(a): First, whether drug testing
regulations and guidelines promulgated by the Federal Aviation Administration
(ʺFAAʺ) and Department of Transportation (ʺDOTʺ) create a duty of care for drug
testing laboratories and program administrators under New York negligence
law; and second, whether a plaintiff may establish the reliance element of a fraud
claim under New York law by showing that a third party relied on a defendantʹs
false statements resulting in injury to the plaintiff. See Pasternack v. Lab. Corp. of
Am. Holdings, 807 F.3d 14 (2d Cir. 2015). The Court of Appeals has now
answered those questions, see Pasternack v. Lab. Corp. of Am. Holdings, 27 N.Y.3d
817 (2016), and, therefore, we now consider the district courtʹs dismissal of
Pasternackʹs complaint in light of the clarification in New York law. We assume
the partiesʹ familiarity with the facts and record of prior proceedings, which we
reference only as necessary to explain our decision to affirm.
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In an opinion filed June 30, 2016, the Court of Appeals answered
both of our certified questions in the negative. Pasternack, 27 N.Y.3d at 826‐27,
828‐29. It held that (1) ʺregulations and guidelines that are ministerial in nature
and do not implicate the scientific integrity of the testing process do not create a
duty of care for drug testing laboratories and program administrators under
New York negligence law,ʺ id. at 826‐27, and (2) a plaintiff may not establish the
reliance element of a fraud claim under New York law by showing that a third
party relied on the defendantʹs false statements, id. at 828‐29. Pasternack moved
for reargument but the Court of Appeals denied the motion on September 20,
2016. Pasternack v. Lab. Corp. of Am. Holdings, No. 2016‐834, 2016 WL 5001229, at
*1 (N.Y. Sept. 20, 2016).
As New York law governs the substantive issues of liability in this
case, the Court of Appealsʹ authoritative rulings on New York law defeat
Pasternackʹs claims that (1) LabCorp and ChoicePoint breached a duty to him by
failing to comply with FAA and DOT regulations and guidelines, and (2)
LabCorp made false statements to federal investigators and those investigators
relied on those fraudulent statements resulting in injury to Pasternack.
Accordingly, the judgment of the district court is affirmed.
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