Shapiro Arato Argues Second Circuit Appeal of Pilot’s Case Against Drug Test Administrators
On June 2, 2015, Shapiro Arato LLP argued before the United States Court of Appeals for the Second Circuit on behalf of our client, Dr. Fred L. Pasternack, in his case against certain drug test administrators.
Dr. Pasternack is an accomplished physician. Until mid-2007, he was also a licensed pilot and served as an Aviation Medical Examiner for the Federal Aviation Administration. In June 2007, he was randomly selected for an FAA-mandated drug test. Although Dr. Pasternack dutifully reported to the testing facility and tested negative, the Medical Review Officer that reviewed Dr. Pasternack’s test results reported to the FAA that Dr. Pasternack had “refused” his test because he briefly left the facility to attend to a scheduled medical examination, even though the testing facility and his employer had permitted him to do so. The FAA revoked his airman certificates and terminated his Aviation Medical Examiner rights. After Dr. Pasternack successfully challenged the FAA’s actions through administrative proceedings, the FAA ultimately reinstated his airman’s certificates and Aviation Medical Examiner designation.
Dr. Pasternack brought civil claims under New York law against the testing facility and the Medical Review Officer. Dr. Pasternack claims that the testing facility was negligent in failing to explain the test procedures to him and in failing to warn him that leaving the facility could be deemed a refusal – as the governing regulations and drug testing guidelines required it to do. Dr. Pasternack claims that the Medical Review Officer negligently reported him as a refusal to the FAA because only Dr. Pasternack’s employer was authorized to make that determination under the governing regulations, and his employer – like the testing facility – had already allowed Dr. Pasternack to continue his test after he returned to the facility. Dr. Pasternack also claims that the testing facility intentionally lied to the FAA to cover up its own errors.
The district court concluded that any duty of care the defendants owed Dr. Pasternack was limited to “a mishandling of the plaintiff’s urine sample or improper testing,” that recognizing a duty in Dr. Pasternack’s case “would represent a significant extension of precedent,” and that the complaint otherwise did not state a valid cause of action. Accordingly, the court dismissed Dr. Pasternack’s claims on the pleadings. Our appeal argues that the district court erred because, among other things, the New York Court of Appeals recently held, in Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1 (2013), that drug test administrators owe their test subjects a broad duty of care and may be held liable in negligence for failing to fulfill their duty. Our appeal also argues that, under New York law, the district court wrongly dismissed Dr. Pasternack’s fraud claim against the testing facility and thus asks the Second Circuit to resolve a conflict between two of its prior decisions and the decisions of the New York Court of Appeals, which have long-permitted fraud claims based on misrepresentations made to a third party.