Plaintiff was an employee of Solvay Minerals. Solvay contracted with Afton and other defendants to provide drug testing services. Plaintiff was selected at random for testing as part of a company drug testing protocol. Defendant is in the business of administering drug tests and delivering the samples to a testing laboratory. Defendant's employee administered the test to plaintiff and there were several irregulatities in the administration of the test, including questions about the chain of custody and the conditions for collecting and preserving the sample. The test analysis indicated a very high urine alcohol content (.32) and plaintiff was fired. He sued defendant for negligence in handling and processing the urine sample. He made the telling claim that he would have had to be drunk to the point of incapacity to have such a high urine alcohol. This was impossible because the test was done 10 hours into his shift which had been completed until that point with no problems and which provided no opportunity for him to have access to alcohol. The trial court dismissed, finding that defendants' owed plaintiff no duty, being only in a contractual relationship with the employer and not having otherwise formed a physician-patient relationship with the plaintiff. The Wyoming Supreme Court reviewed as a case of first impression.
There being no specific statute governing liability for drug testing, the court looked to common law principles. The defendants argued that lack of privity of contract should bar plaintiff's action. The court found that while privity was still a valid issue in contract actions, Wyoming has abandoned it in actions based on negligence and related actions, such as products liability. After conducting a valuable review of national precedent cases on liability for drug testing, the court found that the applicable standard was its traditional 8 part test for tort liability:
"(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved."
As the court worked its way though the analysis, it found that the critical issue was issue of preventing future harm. Negligent actions by the defendant pose a great risk of harm to the plaintiff. Moreover, they are impossible to correct by the subsequent testing laboratory or the employer because both must rely on the defendant's records about the handling of the sample. The court found that defendant should be liable for negligence in handling test samples, and that this was consistent with precedent in other jurisdictions. This is a valuable case for its analysis of issues in third party immunity and testing in general and its careful review of precedent.
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