14‐4101‐cv Pasternack v. Lab. Corp.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2014

(Argued: June 2, 2015 Decided: October 6, 2016)

Docket No. 14‐4101‐cv

DOCTOR FRED L. PASTERNACK,

Plaintiff‐Appellant,

v.

LABORATORY CORPORATION OF AMERICA HOLDINGS, AKA LABCORP, CHOICEPOINT, INC.,

Defendants‐Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: WESLEY, HALL, and CHIN, Circuit Judges. ______

Appeal from a judgment of the United States District Court for the

Southern District of New York (Gardephe, J.) dismissing plaintiff‐appellantʹs claims against drug testing companies for purportedly mishandling a random

drug test. On November 17, 2015, we certified two questions to the New York

Court of Appeals. Based on the Court of Appealsʹ response, we affirm the

judgment of the district court.

AFFIRMED.

CYNTHIA S. ARATO (Daniel J. OʹNeill, on the brief), Shapiro, Arato & Isserles LLP, New York, New York, for Plaintiff‐Appellant.

ROBERT I. STEINER (Sean R. Flanagan, on the brief), Kelley Drye & Warren, LLP, New York, New York, for Defendant‐Appellee Laboratory Corporation of America Holdings.

FREDERICK T. SMITH, Seyfarth Shaw LLP, Atlanta, Georgia, for Defendant‐Appellee LexisNexis Occupational Health Solutions Inc. (formerly ChoicePoint, Inc.).

PER CURIAM:

This appeal challenges a judgment of the United States District

Court for the Southern District of New York (Gardephe, J.) dismissing plaintiff‐

appellant Fred Pasternackʹs claims against defendants‐appellees Laboratory

Corporation of America Holdings (ʺLabCorpʺ) and ChoicePoint, Inc.

‐ 2 ‐ (ʺChoicePointʺ), drug testing companies, for purportedly mishandling a random

drug test.

On November 17, 2015, we certified two questions to the New York

Court of Appeals pursuant to Second Circuit Local Rule 27.2 and New York

Codes, Rules, and Regulations Title 22, § 500.27(a): First, whether drug testing

regulations and guidelines promulgated by the Federal Aviation Administration

(ʺFAAʺ) and Department of Transportation (ʺDOTʺ) create a duty of care for drug

testing laboratories and program administrators under New York negligence

law; and second, whether a plaintiff may establish the reliance element of a fraud

claim under New York law by showing that a third party relied on a defendantʹs

false statements resulting in injury to the plaintiff. See Pasternack v. Lab. Corp. of

Am. Holdings,

(2d Cir. 2015). The Court of Appeals has now

answered those questions, see Pasternack v. Lab. Corp. of Am. Holdings,

(2016), and, therefore, we now consider the district courtʹs dismissal of

Pasternackʹs complaint in light of the clarification in New York law. We assume

the partiesʹ familiarity with the facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

‐ 3 ‐ In an opinion filed June 30, 2016, the Court of Appeals answered

both of our certified questions in the negative. Pasternack, 27 N.Y.3d at 826‐27,

828‐29. It held that (1) ʺregulations and guidelines that are ministerial in nature

and do not implicate the scientific integrity of the testing process do not create a

duty of care for drug testing laboratories and program administrators under

New York negligence law,ʺ

at 826‐27, and (2) a plaintiff may not establish the

reliance element of a fraud claim under New York law by showing that a third

party relied on the defendantʹs false statements,

at 828‐29. Pasternack moved

for reargument but the Court of Appeals denied the motion on September 20,

2016. Pasternack v. Lab. Corp. of Am. Holdings, No. 2016‐834,

, at

*1 (N.Y. Sept. 20, 2016).

As New York law governs the substantive issues of liability in this

case, the Court of Appealsʹ authoritative rulings on New York law defeat

Pasternackʹs claims that (1) LabCorp and ChoicePoint breached a duty to him by

failing to comply with FAA and DOT regulations and guidelines, and (2)

LabCorp made false statements to federal investigators and those investigators

relied on those fraudulent statements resulting in injury to Pasternack.

Accordingly, the judgment of the district court is affirmed.

‐ 4 ‐