IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
NO. 92-2361
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ROBERT E. WILLIS,
Plaintiff-Appellant,
versus
ROCHE BIOMEDICAL LABORATORIES, INC.,
E.I. DU PONT DE NEMOURS & COMPANY,
GEORGE M. ALLISON, M.D., BILL PACE,
BILL BRINGHURST, MARTHA KIVLOVITZ,
Defendants,
ROCHE BIOMEDICAL LABORATORIES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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August 2, 1995
Before KING, JOLLY and PARKER1, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The original panel opinion in this cause, Willis v. Roche
Biomedical Laboratories, Inc., 21 F.3d 1368 (5th Cir. 1994), is
withdrawn and this opinion is substituted in its stead.
Robert E. Willis ("Willis") filed this action in Texas state
court on July 31, 1991, asserting negligence and defamation claims
arising out of a test of Willis's urine that resulted in a false
positive for methamphetamines. Willis brought action against Roche
Biomedical Laboratories, Inc. ("Roche"), the laboratory that
performed the urinalysis; E.I. du Pont de Nemours & Company ("Du
1
Judge Parker was the Chief Judge of the Eastern District
of Texas, sitting by designation at the time this case was
submitted.
Pont"), his employer; and four Du Pont employees, George M.
Allison, M.D., Bill Pace, Bill Bringhurst and Martha Kivlovitz.
(The Du Pont company and its employees are referred to collectively
as "the Du Pont defendants" or "Du Pont".)
On August 22, 1991, the Du Pont defendants, joined by Roche,
removed the action to federal court on the ground that Willis's
claim arose under the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185. The district court subsequently granted the Du Pont
defendants' motion to dismiss because Willis had failed to exhaust
his contractual remedies. Although Willis appealed from the order
of dismissal, that appeal has been previously dismissed and is not
now before this Court.
On June 29, 1992, the district court granted Roche's motion for
summary judgment and this appeal followed.
I. FACTS
The district court found that the following facts were
established by the summary judgment evidence. Neither party
disputes that this portion of the district court's opinion is
correct.
Plaintiff-Appellant Willis has been employed by Du Pont at its
LaPorte, Texas chemical plant since March 26, 1979 as a utility
helper. At all times relevant to this lawsuit, his employment was
governed by a collective bargaining agreement, which included a
substance abuse policy covering La Port plant employees. In July
1990, Du Pont, in alliance with the Union, instituted a random drug
testing policy.
2
Du Pont contracted with Roche to conduct the screening and
testing of urine samples provided by Du Pont in accordance with
strict protocol procedures in the contract.
On August 2, 1990, Du Pont ordered that Willis participate in
a random drug test, in accordance with its substance abuse policy.
The test was performed by Roche and a report was issued to Du Pont,
pursuant to a consent form signed by Willis. The report indicated
that Willis had tested positive for methamphetamine use. Willis
remained employed at Du Pont and continued to receive his regular
salary after Du Pont received Roche's report. Willis was placed on
restricted work duty and was sent to a physician. Willis was also
required to attend counseling sessions and to submit to follow up
testing.
On November 2, 1990, Roche informed Du Pont that Willis's drug
test had registered a "false positive." The false positive was the
result of the test confusing the presence of over the counter cold
medication with the presence of illegal methamphetamine in Willis's
urine. Upon learning of the mistake, Du Pont compensated Willis
for lost time and for medical expenses.
Willis brought suit for negligence, gross negligence, libel and
slander, contending that his damages included various aspects of
mental suffering and the loss of his good name and reputation. He
also claimed monetary damages, but acknowledged that Du Pont had
made monetary amends with regard to the payment of these sums in
the form of repayment for lost work time and reimbursement for
medical expenses.
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II. GOVERNING LAW
In its order denying Willis's motion to remand the case to
state court, the district court found that Willis's state law
claims were preempted by § 185 of the LMRA. If that is correct,
the questions before us are governed by substantive federal law.
Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13
L.Ed.2d 580 (1965) (substantive federal law applies to suits on
collective bargaining agreements covered by this section [§ 185].)
However, the court applied state law to the claims in its
memorandum opinion granting Roche summary judgment.
We hold that Willis's claims against Roche are not preempted by
the LMRA, because they do not require an interpretation of the
collective bargaining agreement for resolution. Rather, the
district court had pendant jurisdiction over these state claims,
and it appropriately applied Texas law.
III. STANDARD OF REVIEW
Willis challenges the district court's interpretation of Texas
law and its determination that no genuine issue of material fact
existed in the summary judgment record. We must review de novo the
district court's determination of state law. Salve Regina College
v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 1225 (1991) ("The
obligation of responsible appellate review and the principle of a
cooperative judicial federalism underlying Erie [R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)] require
that courts of appeals review the state-law determination of
district courts de novo.")
4
The standard of review at the appellate level of a district
court's grant of summary judgment requires the same analysis as
employed by the trial court. FED. R. CIV. P. 56(c) provides that
summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." The Supreme Court has held that
Rule 56 mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing sufficient to establish an essential element of that
party's case, and on which that party will bear the burden of proof
at trial. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The party moving for summary judgment
must initially demonstrate the absence of a genuine issue of
material fact. Id., 477 U.S at 323, 106 S.Ct. at 2553. If the
movant meets this burden, the nonmovant must go beyond the
pleadings and designate specific facts showing that there is a
genuine issue for trial. Id. 477 U.S. at 325, 106 S.Ct. at 2553-
54. "This burden is not satisfied with some metaphysical doubt as
to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence."
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(internal quotations and citations omitted). However, when the
parties have submitted evidence of contradictory facts, "the
evidence of the non-movant is to be believed, and all justifiable
5
inferences are to be drawn in his favor." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d
202 (1986).
This standard provides that the mere existence of some factual
dispute will not defeat a motion for summary judgment; Rule 56
requires that the fact dispute be genuine and material. First, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under
the governing law will preclude summary judgment. Id. 477 U.S. at
248, 106 S.Ct. at 2510. Second, a dispute about a material fact is
genuine if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party. Id.
IV. ANALYSIS
We now turn to the question of whether the district court
erred in granting Roche's motion for summary judgment in this
particular case.
A. WILLIS'S NEGLIGENCE CLAIM
To recover under a negligence cause of action, Willis must
establish that Roche owed a legal duty to him, and then, that Roche
breached the duty and that Willis suffered damages proximately
caused by the breach. See, e.g., Otis Engineering Corp. v. Clark,
668 S.W.2d 307, 312 (Tex. 1983). The district court held that
Roche owed no legal duty to Willis under Texas law to use
reasonable care in its administration of the drug testing of
Willis's urine sample. The district court found that Texas law was
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not sufficiently developed on the issue of a laboratory's liability
for negligent drug testing for a federal court to make an "Erie
prediction", and thus the court was forced to rely on the law of
negligence as it applies to physicians employed as independent
contractors. With the benefit of a recent pronouncement from the
Supreme Court of Texas, we now make the necessary Erie prediction.
Smithkline Beecham Corp. v. Doe, No. D-4131, slip op. (Tex. July
21, 1995).
In Smithkline, an employer rescinded a job offer because a
pre-employment drug test revealed the presence of opiates in the
plaintiff's urine. The plaintiff contended that the test result
was caused by consumption of poppy seed muffins and not by use of
any controlled substances. The employer informed Doe that her only
recourse was to reapply for employment with the company in six
months. She did and the company declined her re-application.
Doe sued, among others, the laboratory which conducted the
testing, claiming that the laboratory owed her a duty to warn that
poppy seeds could cause a positive test result. Reversing a court
of appeals decision, the Supreme Court of Texas held that this duty
did not exist. Smithkline, slip op. at 2. The court recognized
that Smithkline Beecham was an independent laboratory hired by the
employer to conduct drug screening tests. The court did not
consider the duties Smithkline Beecham owed the employer or the
duties the employer may have owed Doe. Rather, the court focussed
"exclusively on the relationship between the laboratory and the
person tested." Smithkline, slip op. at 8.
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The Texas high court noted that some jurisdictions had held
that a laboratory owes a duty to persons tested to perform its
services with reasonable care. Although distinguishing those
decisions from the failure to warn claims before it, the court
pointed out that whether an independent laboratory owes a duty of
reasonable care is a question on which "[n]o court of last resort
has spoken." Smithkline, slip op. at 9. In addition, the court
seemed to question the soundness of the decisions finding such a
duty.2 Reviewing decisions in a related context, the Texas court
also noted that "the only court of last resort in any American
jurisdiction to clearly consider the issue has held that no tort
duty to use reasonable care should be imposed on polygraph test
operators." Smithkline, slip op. at 10 (citing Hall v. United
Parcel Serv. of Am., 555 N.E.2d 273, 276-78 (N.Y. 1990)).
Although the Supreme Court of Texas emphasized in Smithkline
that it was not considering whether a drug testing laboratory has
a duty to use reasonable care in performing tests and reporting
results, we must consider what the court did say in determining
what Texas law is. Recognizing the risks inherent in making an
Erie "guess", we find that under current Texas law, Roche owed
Willis no duty of reasonable care in testing his urine for drugs.
2
. In particular, the court questioned this Court's earlier
opinion in the present case. Smithkline, slip op. at 9-10. We
do not agree that our earlier reliance on the Texas Court of
Appeals decision in Smithkline was unfounded. However, the Texas
Supreme Court's unfavorable references necessarily affect our
Erie analysis since we must predict what that court would have
done if presented with the same dispute.
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B. WILLIS'S DEFAMATION CLAIM
Second, Willis seeks damages arising from the publication of
the false positive test results. Roche responds that Willis signed
a consent form granting permission to release the results of such
tests to the company. The pertinent consent form language reads,
"I furthermore give (outside laboratory) my permission to release
the results of such tests to the company." (Record Vol.1., p.
252). However, we need not address whether this release was
effective because we agree with the district court's reasoning that
in any event Roche's communication was qualifiedly privileged.
The district court assumed arguendo, without holding, that
there was no valid consent and that the report was defamatory, but
found that Roche's publication was qualifiedly privileged, citing
Boze v. Branstetter, 912 F.2d 801, 806 (5th Cir. 1990). The
opinion reasons:
The privilege advances "the need for free
communication of information to protect business and
personal interests." Gaines v. CUNA Mut. Ins. Soc'y, 681
F.2d 982, 986 (5th Cir. 1982). In order for the moving
party to prevail on a summary judgment asserting this
privilege, however, an absence of malice must be shown.
Houston v. Grocers Supply Co., Inc., 625 S.W.2d at 801.
The only manifestation of malice established by
plaintiff stems from the very fact that the test results
were false. The law is clear, "'[m]alice is not implied
or presumed from the mere fact of the publication, nor
may it be inferred alone from the character or vehemence
of the language used, nor found from the falsity of the
statement alone.'" Houston Belt & Terminal Ry. Co. v.
Wherry, 548 S.W.2d at 754 (citations omitted). Plaintiff
has failed to demonstrate express malice or implied
malice. (Record Vol. 1., p. 424)
Willis does not directly challenge this holding, but it is not
entirely clear that he has abandoned his defamation claim. We
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nonetheless agree with the reasoning and conclusion reached by the
district court and hold that it was correct in granting Roche
summary judgment on the defamation claim.
V. CONCLUSION
The district court's order granting summary judgment in favor
of Roche is AFFIRMED.
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