As Seen on Jury Verdict Review & Analysis

Attorney(s) for Plaintiff:
Michael Jay Ferrin
Law Office of Michael Jay Ferrin
ferrinlaw.com

$5,500,000 VERDICT – MEDICAL CENTER NEGLIGENCE – FAILURE TO FOLLOW LAW RESULTING IN MISLABELING OF URINE SAMPLE – PLAINTIFF TERMINATED FROM EMPLOYMENT AS COMMERCIAL AIRLINE PILOT – LOSS OF PAST AND FUTURE EARNINGS.

Broward County, FL

The plaintiff, who was a commercial airline captain, lost his pilot certificates and his job in 2007, as a result of a urine specimen collected and labeled by the defendant medical center. The plaintiff alleged that the sample, which turned up positive for illegal drugs, was not his and that the defendant failed to follow federal Department Of Transportation (“DOT”) protocols causing his loss of employment. The defendant denied all allegations.

The plaintiff, a 36-year-old pilot for a major commercial airline at the time, was selected for a random drug and alcohol test on February 26, 2007, as required by the U.S. Department of Transportation (“DOT”) regulations. He was directed to appear at the defendant’s collection facility located in Fort Lauderdale, Florida, to submit a urine specimen.

The urine sample was split and tested by two separate non-party laboratories. Both returned the same results: extremely high levels of cocaine, morphine and heroin metabolites. The plaintiff denied ever using those drugs and contended that the defendant did not follow required protocols resulting in the wrong sample being labeled as his.

The plaintiff’s experts testified that the reported high concentration of the drug metabolites found in the plaintiff’s urine sample would indicate that the drugs were ingested within a two-hour period before the sample was given. Plaintiff’s counsel argued that it was impossible for the plaintiff to have taken the drugs because he was in the defendant’s waiting room for at least two hours before the urine sample was taken.

In addition, the plaintiff argued that there was a complete lack of evidence that the plaintiff showed any clinical signs of heroin or cocaine use during the 24-hour period before he gave the urine sample. Finally, the plaintiff introduced a medical/psychiatric evaluation, performed 30 days after the urine test, which concluded the plaintiff did not have a substance abuse problem. The subsequent evaluation included a hair follicle drug screen that confirmed no drug use for 60 days prior to the date of the urine sample.

The plaintiff claimed that, although he had a false positive reading that, as a matter of law, he could not introduce evidence to overcome the strong presumption the Federal Aviation Administration and the National Transportation Safety Board placed on the positive urine test. The plaintiff’s pilot certificates were revoked under the applicable regulations. The plaintiff unsuccessfully appealed the administrative action.

The plaintiff asserted that the defendant was negligent for not following the required protocols of the DOT for collection facilities as contained in the Code of Federal Regulations and mandatory published guidelines. As a result, the plaintiff claimed, he was permanently precluded from obtaining employment as an air transport pilot or any other safety-sensitive position, and that he suffered a significant loss of earnings.

The defendant maintained that the plaintiff failed to demonstrate any legitimate issue with the chain of custody of his urine specimen. The defendant argued that there was no evidence that it mishandled, mislabeled or violated DOT protocol in collecting and handling the plaintiff’s sample. The defense claimed that the urine specimen belonged to the plaintiff as he signed the labels and the form that stated the vials were sealed in his presence.

The defense unsuccessfully argued that there were several alternative explanations for the positive test results, including that the plaintiff had actually ingested the drugs.

The defense also contested the plaintiff’s wage loss claim and asserted that he was permitted to reapply for his pilot’s certificate after one year following the Emergency Order of Revocation, but he failed to do so. The plaintiff countered that, although the plaintiff could apply for a private pilot’s license, he was permanently prevented from ever returning to work as a commercial airline pilot.

The jury found that the defendant was negligent, and that negligence was a legal cause of damages to the plaintiff. The plaintiff was awarded $5,500,000 in damages. After the addition of pre-judgment interest, final judgment was entered on December 20, 2018 in the amount of $6,076,126. The defendant’s post-trial motion to set aside the verdict/directed verdict and new trial was recently denied. The plaintiff was granted entitlement to attorney fees and costs.

Reference

Swaters vs. Occupational Health Care of Florida, PA., d/b/a Concentra Medical Centers. Case no. CACE-10-013086; Judge Raag Singhal, 12-07-18.

Attorney for plaintiff: Michael J. Ferrin of Law Office of Michael Jay Ferrin in Delray Beach, FL.

Commentary

This case, dating back nearly nine years, was a long and hard-fought battle on behalf of the plaintiff. The plaintiff, age 36 at the time, asserted that the defendant mishandled/mislabeled his urine sample to create a false positive result thereby destroying his high-wage career as a commercial airline pilot.

The case was rigorously defended from every angle, including an unsuccessful argument that the issues had already been litigated and decided by the National Transportation Safety Board (collateral estoppel defense). The defendant also removed the case to U.S. District Court, but plaintiff’s counsel was able to have it remanded back to state court for trial.

Fairly early in the litigation, plaintiff’s counsel sought to unequivocally prove a case of mistaken identity by utilizing DNA testing and obtained a Circuit Court order for production of the plaintiff’s original frozen urine specimen from the testing labs involved. However, the order was subsequently quashed by the 4th District Court of Appeal, holding that federal regulations prohibit the Circuit Court from ordering production of the urine sample, unless authorized by DOT. DOT made a decision to neither grant nor deny the request, since doing so could interfere with the federal regulatory scheme (the regulatory action revoking the plaintiff’s pilot certificates had already been made final).

Accordingly, plaintiff’s counsel was required to prove the case at trial by other evidence including lack of clinical signs of drug use by the plaintiff and a subsequent negative hair follicle drug screening. The credibility of the plaintiff himself, no doubt, also played a major role in the jury’s ultimate decision in his favor.

The plaintiff served a proposal for settlement in the amount of $1,050,000 on December 6, 2010, that has resulted in an order finding that the plaintiff is also entitled to attorney’s fees, in an amount yet to be determined. The defendant’s only offer was $20,000 in the form of a proposal for settlement in 2012.

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