NY Court Weighs Negligence Claim on Drug Tester

ALBANY, N.Y.—A man whose former probation was seemingly put in jeopardy is asking New York’s highest court for permission to sue a drug testing company, claiming a false positive test for marijuana cost him a promised job, prospective marriage, and three months of anguish when he was threatened with seven years in prison.

Eric Landon, arguing Tuesday on his own behalf at the Court of Appeals, said Kroll Laboratory Specialists failed to exercise reasonable care in analyzing his sample in December 2007 under contract with Orange County. He obtained a blood test from a private lab the same day that was negative and later submitted to a county urine test that also was negative.

His probation appointments were immediately increased from monthly to weekly, he said, adding that a confirmation urine test should have been done originally. “I spent at least $5,000 just going to probation because I had arranged for new employment and new housing in Albany,” he said.

Landon, 42, was nearing the end of probation for a felony conviction for a prescription drug forgery when the Orange County Probation Department ordered the random drug test. Probation officials then tried to revoke his probation and send him to prison, but eventually withdrew that petition after the negative test results.

Others have been locked up or lost custody of children from false positives, Landon said after the court hearing, adding he hopes his suit will become a class action.

Mitchel Ochs, attorney for Louisiana-based Kroll, said the company was doing drug testing under contract with Orange County from a saliva swab, a result he said wasn’t wrong, but was based on a low testing threshold. He argued that Landon lost no freedom and as a third-party testing subject has no basis for suing Kroll.

“There is a cause of action, it’s just not against my client,” Ochs said. “The cause of action is against the Probation Department.”

“Why shouldn’t it be against your client if you make a mistake that impacts the liberty of the person being tested?” Chief Judge Jonathan Lippman asked.

Ochs said Landon wasn’t jailed, and that negligence compensation is for physical harm to a person or property. That doesn’t apply here, he said.

Judge Robert Smith questioned whether a ruling in favor of Landon would result in many false claims that would be hard to deal with. He asked if the labs keep samples so they can prove positive tests.

Ochs said he didn’t know, but in this case Landon was able to challenge his results at the probation department.

“As a public policy point of view, you’re talking about employment, you’re talking about eligibility for certain programs this testing can affect,” Judge Eugene Pigott Jr. said. “Let’s assume there’s a cause of action, what does that do to people in your business or to people who do this testing?”

“Does it make you be more careful?” Lippman asked. “Would that be a bad thing?”

Kroll sold its drug-testing unit to Inverness Medical Innovations in 2010, Kroll spokeswoman Michelle Creeden said.