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Federal Law Does Not Preempt Airline Employee’s Negligent Drug-Testing Claim


Metropolitan News-Enterprise
Monday, September 15, 2003

Ninth Circuit Rules Federal Law Does Not Preempt Airline Employee’s Negligent Drug-Testing Claim

By a MetNews Staff Writer

The drug testing provisions of the 1991 Omnibus Transportation Employee Testing Act do not preempt a state-law tort action by an airline employee against a laboratory which negligently performed her urine drug test, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court, in an opinion by Judge Andrew J. Kleinfeld, declined to overturn a $400,000 jury award won by Delta Airlines flight attendant Yasuko Ishikawa. Ishikawa sued LabOne, Inc., after she was fired for failing a random urine drug screening.

She was later rehired. Evidence at trial established, the appeals court said, that LabOne used equipment which rounded off a key figure in the test report—creatinine—to a single integer, with the result that Ishikawa was classified as having provided a substitute, and possibly non-human, urine sample.

When a remaining part of the sample she provided was independently tested during the litigation, and the decimal portion of the result included in the calculation, the outcome was instead classified as a “dilute” specimen. Ishikawa admitted drinking substantial quantities of water and tea during the nine-hour flight from Portland to Tokyo that preceded the test.

Kleinfeld rejected the laboratory’s argument that the federal law preempts ordinary negligence actions based on testing conducted under its provisions. He noted that the law expressly limits its preemptive effect to “inconsistent” state laws.

“[W]e cannot see how the duty the state common law imposed, that LabOne test urine and report the results with due care, could be inconsistent with the federal guidelines, which require the same thing with more specificity,” Kleinfeld wrote. “It is not as though the state law had one creatinine standard, the federal program another. The district court invited and the plaintiff urged that the jury use the federal requirements to evaluate whether LabOne performed its duties with due care.”

Federal regulations applicable to the testing program also specifically provide that employees subjected to tests cannot be required to waive liability for negligence in how the tests are performed, the judge noted.

While Kleinfeld conceded that drug screening can be complex, the judge commented that the errors made by LabOne in handling Ishikawa’s urine sample “were down at the simple end of the spectrum, to the point of being crude.”

Judge M. Margaret McKeown, and U.S. District Judge Charles R. Breyer of the Northern District of California, sitting by designation, concurred.

The case is Ishikawa v. Labone, Inc., 01-35863.