STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

DOCKET NUMBER 2023 CA 1307

BRADY BASS

VERSUS

DISA GLOBAL SOLUTIONS, INC., CONVENIENT CARE, L.L.C. D/B/A TOTAL OCCUPATIONAL MEDICINE, 413/. .RANDY B. BARNETT, D.O., AND PSYCHEMEDICS CORPORATION LJ JUL 2 4 2024 Judgment Rendered: ____ _

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, DIVISION 23 IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 661547

HONORABLE KELLY E. BALFOUR, JUDGE PRESIDING

Brian W. Harrell Attorney for Plaintiff-Appellant Metairie, Louisiana Brady Bass

Brian W. Capell Attorneys for Defendant-Appellee John S. Troutman DISA Global Solutions, Inc. William J. Heaton Lafayette, Louisiana and Holly H. Williamson, pro hac vice Michael Reed, pro hac vice Houston, Texas

BEFORE: THERIOT, PENZATO, AND GREENE, Jl.

GREENE, J.

Brady Bass, the plaintiff in this suit, appeals a summary judgment dismissing his

claims against DISA Global Solutions, Inc. ( DISA), the third-party administrator of his

employer's drug testing program. DISA answered the appeal. After review, we affirm

the judgment and deny the answer to the appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Bass was employed by Coastal Corrosion Control, Inc. (Coastal) as an onshore

laborer. In January 2017, Coastal instructed Mr. Bass to present to Convenient Care,

L.L.C, d/b/a Total Occupational Medicine ( TOM) for employment-related urine and hair

sample drug testing. Mr. Bass's urine test was negative, but his hair sample test returned

a positive result for marijuana use. According to Mr. Bass, the positive result for

marijuana was a false positive, which ultimately negatively impacted his ability to

maintain employment in the petrochemical industry.

Mr. Bass filed this suit against DISA, Coastal's third-party drug test administrator;

TOM, the drug testing collection facility; and Psychemedics Corporation ( Psychemedics),

the laboratory that performed the positive hair sample test. He alleged the defendants

negligently mishandled his hair sample and conducted the drug test in an unsanitary and

contaminated environment, resulting in the false positive drug test for marijuana. 1 Mr.

Bass alleged TOM collected the hair sample under the direction of DISA-trained and

managed employees at TOM's clinic and then sent the hair sample to Psychemedics for

chemical analysis. Mr. Bass also alleged the defendants defamed him by reporting and

publicizing the alleged false positive drug test result to national drug testing databases,

which prevented him from finding employment and caused him humiliation and

embarrassment. Mr. Bass sought damages resulting from the false positive drug test,

including lost employment, lost wages, lost benefits, loss of enjoyment of life, defamation,

and emotional pain and suffering.

In an original petition, Mr. Bass also named Randy B. Barnett, D.O., as a defendant. After the trial court dismissed Mr. Bass's claims against Dr. Barnett, Mr. Bass filed a first amended petition naming Jerome Cooper, D.O., as a defendant, identifying him as DISA's Medical Review Officer. Mr. Bass's claims against Dr. Cooper are not at issue in this appeal.

Specifically as to DISA, Mr. Bass alleged DISA breached its duty of care when it

contracted with and improperly allowed TOM and Psychemedics to improperly collect,

test, and analyze his hair sample, and falsely designate him as a drug user and as an

inactive-status employee, thereby making him ineligible to return to work within zero

tolerance petrochemical industry sites because of a false positive drug test. He further

alleged that, under its DISA Contractors Consortium Hair Testing substance abuse policy,

DISA had " the right of control of any aspect of its drug testing program," including when

to test a contractor's employee for drug usage, which employees would be chosen for

testing, and how the testing was performed. Mr. Bass also alleged DISA's publication of

his false positive test result in national employment drug testing databases constituted

defamation. 2

The three defendants separately filed motions for summary judgment seeking

dismissal of Mr. Bass's claims. This Court affirmed a summary judgment dismissing Mr.

Bass's claims against Psychemedics, finding Mr. Bass failed to present evidence of

Psychemedics's negligence, was not entitled to assert a negligence per se claim under

certain statutes and regulations, and failed to present evidence of Psychemedics's

unprivileged publication to a third party to support his defamation claim. Bass v. DISA

Global Solutions, Inc., 2020-0071 (La. App. 1 Cir. 12/30/20), 318 So.3d 909, writ denied,

2021-00147 ( La. 3/23/21), 313 So.3d 273 ( Bass I). This Court reversed a summary

judgment dismissing Mr. Bass's claims against TOM and remanded for further

proceedings, finding an expert's affidavit created disputed factual issues regarding the

validity and integrity of TOM's collection process. Bass v. DISA Global Solutions, Inc.,

2019-1145 ( La. App. 1 Cir. 6/12/20), 305 So.3d 903, writ denied, 2020-01025 ( La.

11/4/20), 303 So.3d 651 ( Bass II). And, this Court vacated a judgment denying DISA's

motion for summary judgment and remanded due to the trial court's failure to rule on

On August 6, 2018, the trial court signed a judgment granting DISA's exception of no cause of action, in part, as to Mr. Bass's claims against DISA for wrongful termination; violation of the Louisiana Drug Testing Statute, La. R.S. 49:1001, et seq.; constitutional due process violations; violation of HHS Mandatory Guidelines for Federal Workplace Drug Testing; violation of Department of Transportation regulations, 49 CFR § 40.149; interference with contract; violation of the Louisiana Human Rights Act; and violation of the Louisiana Employment Discrimination Law. This Court reversed the judgment, finding the trial court could not partially grant an exception of no cause of action and further finding Mr. Bass had stated a cause of action under the Louisiana Drug Testing Statute. Bass v. DISA Global Solutions, Inc., 2018-1102 ( La App. Cir. 11113/18), 2018 WL 5919688, writ denied, 2019-0377 (La. 4/29/19), 268 So.3d 1035. evidentiary objections before ruling on the motion. Bass v. DISA Global Solutions, Inc.,

2022-0957 (La. App. 1 Cir. 9/26/2022), 2022 WL 4463074.

In this appeal, we review a February 24, 2023 judgment granting DISA's re-set

motion for summary judgment and dismissing Mr. Bass's claims against DISA. In a related

appeal, our Docket Number 2024 CA 0024, we review a February 15, 2023 judgment

granting TOM's second-filed motion for summary judgment and dismissing Mr. Bass's

claims against TOM. On DISA's motion, this Court consolidated this appeal with Docket

Number 2023 CA 0024 for oral argument and submission only.

In a single assignment of error in his original appellate brief, Mr. Bass generally

asserted that the trial court erred in granting DISA's motion for summary judgment and

dismissing his claims against DISA. After DISA correctly pointed out that Mr. Bass's brief

was essentially void of substantive argument, Mr. Bass filed a reply brief in which he

argues there are genuine issues of material fact regarding whether DISA had a duty "to

accurately and reliably collect, report, publish and administrate the drug testing program

within the correct legal standards, guidelines, and policies," and whether "DISA's actions

in falsely publishing information regarding Brady Bass' alleged illegal drug use for third-

party companies to see is defamatory." We note that Mr. Bass does not assign error to

nor discuss the trial court's dismissal of his claims against DISA for invasion of privacy

and negligence per se, and as such, we consider these issues abandoned. See Uniform Rules - Courts of Appeal, Rule 2-12.4(6)(4).

DISCUSSION

Summary Judgment

An appellate court reviews the grant or denial of summary judgment de novo under

the same criteria governing the trial court's consideration of whether summary judgment

is appropriate. Bass I, 318 So.3d at 916; Bass II, 305 So.3d at 906. A court shall grant

a motion for summary judgment if the motion, memorandum, and admissible supporting

documents show there is no genuine issue of material fact and that the mover is entitled

Notwithstanding Mr. Bass's failure to raise these issues, we note that, in Bass I, this Court determined the trial court properly dismissed Mr. Bass's negligence per se claims because the Louisiana Drug Testing statute, Department of Transportation regulations, HIPAA, SAMHSA, and PHMSA guidelines did not apply to Mr. Bass's claims. See Bass I, 318 So.3d at 921-923.

to judgment as a matter of law. See La. C.C.P. art. 966(A)(3) and ( 4). The summary

judgment movant maintains the burden of proof. La. C.C.P. art. 966(0)(1). Nevertheless,

if the movant will not bear the burden of proof at trial on the issue before the court on

the motion, his burden is satisfied by pointing out an absence of factual support for one

or more elements essential to the adverse party's claim, action, or defense. Id.

Thereafter, the adverse party must produce factual support sufficient to establish he will

be able to satisfy his evidentiary burden of proof at trial. Id If the adverse party fails to

meet this burden, there is no genuine issue of material fact, and, if appropriate, the court

shall render summary judgment against him. La. C.C.P. arts. 966(0)(1) and 967(B).

Negligence

Because it is the substantive law that determines materiality in a summary

judgment setting, whether a particular fact in dispute is material can be seen only in light

of the substantive law applicable to the case. Bass I, 318 So.3d at 917. Mr. Bass's claims

against DISA are based on negligence and are subject to a duty/risk analysis. See Id.

To prevail at trial, Mr. Bass would have the burden of proving: ( 1) OISA had a duty to

conform its conduct to a specific standard ( the duty element); ( 2) OISA's conduct failed

to conform to the appropriate standard ( the breach element); ( 3) OISA's substandard

conduct was a cause in fact of his injuries ( the cause in fact element); ( 4) DISA's

substandard conduct was a legal cause of his injuries (the scope of duty element); and,

5) proof of actual damages ( the damages element). Id.

Generally, under Louisiana law, a person has a duty to conform his conduct to the

standard of care of an average reasonable man in like circumstances. Bass I, 318 So.3d

at 917; Bass II, 305 So.3d at 907. Thus, for OISA to have breached a duty, it first must

have owed a duty, and secondly, it must have acted unreasonably in performing that

duty. Bass II, 305 So.3d at 907. Whether OISA specifically owed a duty to Mr. Bass as

the administrator of Coastal's drug testing program requires explanation of its role as

such, as shown by the summary judgment evidence.

The Legislature recently amended La. C.C.P. art. 966, but those amendments are not applicable to this appeal. See 2023 La. Acts No. 317, § 1 ( eff. Aug. 1, 2023), and 2023 La. Acts No. 368, § 1 ( eff. Aug. 1, 2023); Jones v. Illinois Cent. R.R. Co., 2023-0457 ( La. App. 1 Cir. 11/3/23), 378 So.3d 104, 106, n.2.

Accordingly, we apply the version of La. C.C.P. art. 966 in effect on February 6, 2023, the date of the summary judgment hearing herein.

DISA'S Role as Coastal's Third-Party Drug Administrator

At the time of Mr. Bass's drug test, Coastal, his employer, had entered into a

Master Service Agreement ( MSA) with DISA to provide third-party drug testing

administrative services. Under the MSA, DISA agreed to perform drug testing for Coastal;

provide Coastal with a list of approved specimen collection centers; use laboratories

certified by the Department of Health and Human Services; provide positive drug test

results to DISA authorized Medical Review Officers ( MRO); maintain Coastal employee

records regarding drug screening status in DISA's online system; and, make such information available to Coastal.

As part of its administrative services, DISA developed a policy titled the DISA

Contractors Consortium Hair Testing Policy ( DCCHTP), which provided a standardized

substance abuse policy for participating owners and contractors, so that contractors'

employees could move between owner job sites without the requirement of repeated

drug testing to comply with differing standards. Under the DCCHTP, owners and

contractors ( like Coastal) could access a work-eligibility database that showed whether

an employee was compliant with a particular owner's substance abuse policy, thereby

allowing the owner and the contractor to staff a particular project with drug-free

employees. Employees who were compliant with the DCCHTP were listed as " active" in

the work-eligibility database, and those who were not compliant were listed as "inactive."6

An employee who failed a drug test could complete a rehabilitation program, and if he

thereafter passed a "return-to-duty" drug test, DISA would change his status to "active"

in the work-eligibility database. Owners and contractors could deny "inactive" employees

access to a plant site.

Relevant here, the DCCHTP first required the collection of Mr. Bass's hair sample.

In this case, TOM's employee, Matthew Guarisco, collected Mr. Bass's hair sample on

The MSA provided that it was for the sole benefit of DISA and Coastal, and that "no third party shall be deemed a third-party beneficiary" of the MSA. On appeal, Bass has not asserted that DISA's contractual duty to Coastal under the MSA to administer its drug program somehow created a duty owed to him as well. See Thibodeaux v. DISA Global Solutions, Inc., 18-651-SDD-RLB ( M.D. La. 11/03/03), 2020 WL 6479540, * 5 (rejecting an employee's argument that DISA's contractual duty to a contractor somehow trickled down" to the employee).

Under the DCCHTP, an employee could be listed as " inactive" for no test on file; a positive test; self- identification; failure to submit to a test; failure to follow rehabilitation requirements; or failure to consent to release test results or rehabilitation records.

January 16, 2017. After collecting the sample, the collector places it in a sealed container

and sends it to a laboratory for drug testing. In this case, Mr. Guarisco collected the

sample and sent it to Psychemedics for testing. If the laboratory determines the sample

is positive for prohibited substances, the results are sent to an MRO who reviews the

results and interviews the employee to determine if there may be a legitimate reason for

the positive result. In this case, Psychemedics determined Mr. Bass's hair sample was

positive for marijuana and sent the results to University Services-MRO. Dr. Jerome

Cooper, a University Services MRO, interviewed Mr. Bass and determined there was no

other legitimate explanation. After the MRO determines such, the MRO confirms the

result and reports it to DISA. In this case, Dr. Cooper confirmed Mr. Bass's positive result

and reported it to DISA. Upon receipt of an MRO's positive report, DISA designates the

employee as " inactive" in its database. In this case, DISA designated Mr. Bass as

inactive" and notified Coastal of Mr. Bass's positive drug test. Coastal temporarily moved

Mr. Bass into a warehouse to work.

After being told of his positive drug test, Mr. Bass asked DISA to submit another

hair sample for testing. Pursuant to the DCCHTP, DISA informed Mr. Bass that he could

pay to have the original sample re-tested but could not have a new sample tested. Eleven

days after TOM collected his first hair sample, Mr. Bass had a second hair sample taken,

which returned a negative result for marijuana use. Thereafter, he paid to have the

original sample re-tested. Psychemedics re-tested the original sample and sent it to

another laboratory, Omega Laboratories, for testing; both re-tests returned a positive

result for marijuana. Mr. Bass completed the DCCHTP rehabilitation program, and at

some point, Coastal returned him to his previous position.

Mr. Bass contends his original hair sample test was a "false positive," because it

was negligently mishandled and drug tested in an unsanitary and contaminated

environment. As earlier stated, he claims DISA breached a duty to him when it contracted

with and allowed TOM and Psychemedics to improperly collect, test, and analyze his hair

sample.

Evidence of DISA's Duty to Mr. Bass

We find Mr. Bass's arguments to be without merit, because there are no genuine

issues of material fact as to whether DISA had a duty to him to "accurately and reliably

collect" and test his hair sample. DISA, as the third-party administrator of Coastal's drug

testing program, did not owe a duty to Mr. Bass to control TOM's actions or

Psychemedics's actions.7 See Thibodeaux v. DISA Global Solutions, Inc., 18-651-SDD-

RLB ( M.D. La. 11/03/20), 2020 WL 6479540, * 4. Louisiana courts recognize that there

is no duty to protect against or control the actions of a third party unless a special

relationship gives rise to such a duty. Id. at 4, n. 67. Mr. Bass has not shown that DISA

had such a special relationship with either TOM or Psychemedics, under the DCCHTP or

otherwise. DISA did not collect Mr. Bass's hair sample and did not perform the laboratory

testing on Mr. Bass's hair sample. Accord Tilson v. DISA Incorporated, ( 5 th Cir. 9/10/20),

828 Fed.Appx. 193, 196 ( noting plaintiffs' failure to explain how DISA could be liable for

negligent collection or testing on a hair sample when DISA performed neither action).

Nor has Mr. Bass shown that DISA somehow assumed control over TOM's collection

process or Psychemedics's testing procedures. Although Mr. Bass alleges TOM's collector

was "DISA-trained and managed," the collector's deposition testimony clearly shows that

he was employed by TOM, not DISA, and that Psychemedics provided his collector

training, not DISA. Nor does Mr. Bass reference certain "legal standards, guidelines, and

policies," in the DCCHTP or otherwise, which merit the imposition of a duty upon DISA to

be responsible for the actions of other participants in the drug testing process. As other

courts have noted in similar cases, we are under no obligation to "scour the record looking

for issues of material fact." See Tilson, 828 Fed.Appx. at 197. Accordingly, we find DISA

did not owe a duty as a matter of law because Mr. Bass has failed to identify any disputed

As the collector of the hair sample for drug testing purposes, TOM had a duty to Mr. Bass to maintain the integrity of the hair sample. See Williams v. Gulf Coast Occupational Medicine, Inc., 2015-1130 ( La. App. 1 Cir. 2126116), 2016 WL 770376, * 4 & *5, n.5, writ denied, 2016-0577 ( La. 5/13/16), 191 So.3d 1056. Generally, see cases collected in 1 Empl. Privacy Law § 4.58, L. Camille Hebert, Negligence in testing process. ( Dec. 2023 update). As the testing laboratory, Psychemedics had a duty to Mr. Bass to analyze the sample in a reasonably scientific manner. See Bass I, 318 So.3d at 917; Elliott v. Laboratory Specialists/ Inc., 588 So.2d 175, 176 (La. App. 5 Cir. 1991), writ denied, 592 So.2d 415 (La. 1992). Generally, see 55 Causes of Action 2d 573, § 14, Beth Holliday, Causes of Action for Liability of Clinical Laboratories for Negligence (June 2024 update). However, these duties to not automatically apply to DISA as the third- party administrator of DISA's drug testing program.

factual issues as to duty. Accord Sandoval v. DISA, 01-17-00846-CV (Tex.App.-Hous. ( 1

Dist.) 12/6/18), 2018 WL 6379665, * 7 (finding DISA had no duty to ensure the accuracy

of an employee's drug test result by contracting to provide administrative services to his

employer).

Defamation

We likewise find no merit to Mr. Bass's argument that DISA defamed him by

falsely designating" him as a drug user and publishing his status as an " inactive"

employee, thereby making him ineligible to return to work in certain petrochemical

industry sites. 8

To prevail at trial on his defamation claim, Mr. Bass would have the burden of

proving: ( 1) a false and defamatory statement; ( 2) an unprivileged publication to a third

party; ( 3) fault by the publisher; and ( 4) resulting injury. Bass I, 318 So.3d at 923. Proof

of the truth of the alleged defamatory statement is a valid defense in a defamation suit.

See La. R.S. 13:3602; Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1105 ( La. 1988).

It is undisputed that Psychemedics and Omega Laboratories conducted multiple

tests of Mr. Bass's hair sample and all of those tests returned a positive result for

marijuana use. 9 Dr. Cooper, the MRO who reviewed Mr. Bass's Psychemedics test,

verified the positive result, and reported it to DISA. Pursuant to the DCCHTP, upon

receipt of the MRO's positive report, DISA designated Mr. Bass as " inactive" in its

database and notified Coastal. Neither DISA's reporting Mr. Bass's test as positive nor its

designation of him as " inactive" was false. Since truth is a defense to defamation, we

conclude the trial court correctly granted summary judgment to DISA on Mr. Bass's claim.

Accord Tilson, 828 Fed.Appx. at 197.

According to DISA, some owners operate " zero-tolerance" worksites and refuse to allow an " inactive" employee to work at their sites even if that designation later returns to "active." We note that Mr. Bass's negative test from a different hair sample taken eleven days after the first sample was taken does not create a disputed issue as to the accuracy of the previous positive test results. See Bass I, 318 So.3d at 921.

CONCLUSION

On de novo review, we conclude the trial court correctly granted summary

judgment in this case, because Mr. Bass has provided insufficient evidence to create a

disputed factual issue as to "whether DISA had a duty to accurately and reliably collect,

report, publish and administrate the drug testing program within the correct legal

standards, guidelines, and policies," and as to whether " DISA's actions in falsely

publishing information regarding Brady Bass' alleged illegal drug use for third-party

companies to see is defamatory." Absent evidence of the duty and falsity elements of

his claims, Mr. Bass's claims against DISA fail. See Williams v. Gulf Coast Occupational

Medicine, 2015-1130 ( La. App. 1 Cir. 2/26/16), 2016 WL 770376, * 3 ( noting that a

negative answer to any of the inquires of the duty-risk analysis results in a determination

of no liability).

DISA filed an answer to Mr. Bass's appeal, challenging the trial court's denial of its

objections to some of Mr. Bass's summary judgment evidence. Because that evidence is

immaterial to the issue of whether DISA owed a duty, and based on our affirmance of

the trial court's judgment, we conclude DISA's answer to the appeal is moot.

For the foregoing reasons, we affirm the trial court's February 24, 2023 judgment,

granting the motion for summary judgment filed by DISA Global Solutions, Inc., and

dismissing all of Brady Bass's claims against DISA Global Solutions, Inc. with prejudice.

We assess costs of this appeal to Brady Bass.

JUDGMENT AFFIRMED; ANSWER TO APPEAL DENIED AS MOOT.