COA allows negligence claim on drug tester

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ALBANY — New York’s highest court agreed Thursday to let a man sue a drug-testing company for what he claims was a false positive test for marijuana that cost him a promised job, prospective marriage and months of anguish when he was threatened with prison.

In a 4-3 decision, the Court of Appeals ruled that Eric Landon may pursue his negligence claim against Kroll Laboratory Specialists over the 2007 saliva analysis done under contract with Orange County. The majority said the lab has “a duty of care” toward its testing subject.

Landon obtained a blood test from a private lab the same day and later submitted to a county urine test, both of which were negative.

An attorney for Louisiana-based Kroll argued the test result wasn’t wrong but was based on a low testing threshold. Kroll sold its drug-testing unit to Inverness Medical Innovations in 2010.

“Without question, the release of a false positive report will have profound, potentially life-altering, consequences for a test subject. In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation,” Chief Judge Jonathan Lippman wrote. “The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that Kroll had a duty to the test subject to perform his drug test in keeping with relevant professional standards and that the existence of its contract with the county does not immunize the defendant laboratory.”

Judges Victoria Graffeo, Jenny Rivera and Sheila Abds-Salaam agreed.

In a dissent, Judge Eugene Pigott Jr. wrote that the majority “opens the door” for parolees, probationers, job applicants and others subject to drug and alcohol testing to sue independent, third-party drug labs. He said the four judges defined the lab’s duty too broadly.

Judge Susan Read sided with Pigott.

In a separate dissent, Judge Robert Smith said defamation law already provides a limited remedy for those who claim false positives on drug tests. “There is no good reason to invent a new tort,” he said.