Jottings By An Employer's Lawyer

Sunday, September 14, 2003

Oregon Allows Common Law Claim Against Lab For Negligent Drug Test

A Delta flight attendant's urine sample was found by a lab to be altered. Delta treated this as a refusal to test and fired her. The split sample when retested, saved the day for the attendant who was rehired by Delta and paid $68,920 in back pay and benefits. The first lab had either erroneously truncated or rounded the readings, either of which made a difference between an acceptable and unacceptable sample in this case. The Court rejected the lab's argument that her state negligence claim was pre-empted by federal law. The lab also sought to avoid paying the jury's award of $68,000 in back pay since it had been paid by Delta. Wrong again said the Court invoking Oregon's collateral source rule. Ishikawa v. Delta (9th Cir. 9/12/03) [pdf].

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