Psychemedics Legal Cases

PARTIAL LISTING OF THOSE CASES DEMONSTRATING JUDICIAL ACCEPTANCE OF THE PSYCHEMEDICS HAIR ANALYSIS METHOD

Employment Cases

In U.S. v. Sullivan, Alameda USCG (July 2009), the defendant was convicted of cocaine use in a court martial proceeding based upon Psychemedics hair drug test results and urine results.

In U.S. v. Redmond, Offutt AFB (April 2009), the defendant was convicted of marijuana use and discharged as a result of Psychemedics hair sample analysis.

In U.S. v. Yox, Andrews AFB (July 2008), based upon Psychemedics’ hair sample analysis, the defendant admitted to and plead guilty to cocaine use.

In the Matter of New York Police Department Disciplinary Trials, Case Nos. 82337/06; 82251/06 ; 82184/06; 82283/06; 83905/08; (2008) and Case Nos. 83711/08 and 84301/08 (2009), NYC police personnel were found to have ingested illegal drugs detected by Psychemedics hair analyses. During these trials, evidence of Psychemedics’ US FDA cleared test methods, laboratory certifications and licensure, as well as peer-reviewed publications describing the Psychemedics test procedures provided scientific bases for the judges’ findings.

In City of New York Civil Service Commission Action Item No. C06-865-A (December 6, 2006), the City Civil Service Commission affirmed the NY police department’s (NYPD) determination that an applicant (appellant) was not qualified for position of Police Officer after cocaine was detected in hair samples analyzed by Psychemedics laboratory. The Commission evaluated Psychemedics’ wash procedures to differentiate between cocaine ingestion versus external contamination and affirmed that the appellant was disqualified since the hair samples tested positive for cocaine.

In The City of New York Disciplinary Proceedings, Case No. 79863/04 (July 2006), the trial commissioner ruled that a police officer had ingested cocaine as determined by the Psychemedics hair sample analysis. The commissioner rejected the theory proffered by the Respondent that ingestion of an antibiotic caused the positive result, since that concern does not apply to the FDA-cleared screen test used by Psychemedics (the theory relates to urine screen tests manufactured more than a decade ago by another company). The commissioner also found that Psychemedics’ 5-step washing process negated the possibility that hair externally exposed to hair could cause a positive result.

In City of New York Civil Service Commission Action Item No. C06-529-A (2006), a police applicant was disqualified as a result of testing positive for cocaine based upon Psychemedics hair analysis.

In Samad Ali v. Raymond Kelly, Case No. 102749 (2004), the Supreme Court of the State of New York upheld the termination of a probationary police officer through the use of Psychemedics Corporation’s hair analysis drug test. In the decision, the Court ruled that the officer’s subsequent urine test, which allegedly tested negative, did not refute the positive hair test results since the urine test merely shows that cocaine was not ingested within 48 – 72 hours prior to the test.

In Stewart v. International Truck and Engine Corp., Case No. 01 C 2756, (U.S.D.C., Northern Dist. IL, July 2, 2002), the plaintiff alleged that hair testing for drugs of abuse had an adverse impact on African Americans. The United States District Court granted summary judgment in favor of International Truck and Engine Corp. and dismissed the case, finding that “…Stewart has simply rested on his allegations that defendant’s practice of using hair samples has a
disparate impact. Stewart has presented no statistical evidence in support of his disparate impact claim, and this lack of statistical evidence is fatal to Stewart’s disparate impact claim.”

Scott v. The City of New York, et al., Civil Action No. 98-CV-1902 (ERK), (U.S.D.C., Eastern Dist. NY, March 21, 2001), a case involving a claim of constructive discharge based on race and gender, was dismissed via summary judgment. In making its decision, the court relied on the plaintiff’s hair test result, which was positive for marijuana, as well as plaintiff’s prior admission of use.

In Jones et al. v. City of Chicago, Civil Action No. 99 C 8201, (U.S.D.C., Northern Dist. IL, November 28, 2000), a case involving claims of race bias in hair testing, the United States District Court granted summary judgment in favor
of the City of Chicago and dismissed the case. The Court found that not only was some of the evidence inadmissible, but also that “the remaining admissible evidence would be insufficient for a trier of fact to find that the [Psychemedics] hair test is more likely to result in false positive results for African-American applicants than for white applicants…”

In Cruse v. Whirlpool Corp., Civil Action No. 99-2129, (U.S.D.C., Dist. AR, June 23, 2000), the United States District Court found no merit to plaintiff’s allegations that the Psychemedics hair test, (“RIAH”), was racially biased against African Americans and, as such, granted the defendant’s motion for summary judgment. “Summary judgment is not appropriate unless all the evidence points toward one conclusion…”(citing Hardin v. Hussman Corp., 45 F. 3d 262 (8th Cir. 1995)). The defendant’s expert stated, through written testimony, that “there is absolutely no scientific support for the notion that plaintiff’s test result could be positive because of her race.” The court considered the plaintiff’s failure to offer any statistical evidence in support of her claim of racial bias in granting the defendant’s motion.

In Gregory Hicks et al. v. City of New York et al., Index No. 119154 (1999), the Supreme Court of the State of New York upheld the termination of three officers through the use of Psychemedics’ hair analysis drug testing.

In Brinson v. Howard Safir, et al., 680 N.Y.S. 2d 500, 255 A.D. 2d 247, (N.Y.A.D. 1 Dept. 1998), the New York Supreme Court Appellate Division upheld the lower court’s determination of the accuracy of Psychemedics hair testing performed on an NYPD officer. Subsequent to this decision, the plaintiff filed suit in federal court, (E.D.N.Y. Civil Action No. 98-CV-2784 (ERK)(JMA)), claiming, in part, that he had not been afforded procedural due process before he was terminated from his position. The court, in granting the defendants’ motion for summary judgment, found that the plaintiff was afforded, and took advantage of, every opportunity to appeal his dismissal. The court also referenced the
Appellate Division’s holding that “there was reasonable suspicion to order the testing…and there was no reason to doubt the accuracy of the test results.”

In Matter of Brown v. City of New York, 250 AD2d 546, 673 NYS2d 643, (1998), the New York Supreme Court Appellate Division affirmed the New York Police Department’s discharge of a New York City police officer for failure to pass a Psychemedics hair analysis drug test. Claims of contamination and inadequacies of testing were determined to be devoid of merit.

In Nevada Employment Security Department et al. v. Cynthia Holmes, 914 P.2d 611 (Nev. 1996), the Nevada Supreme Court held the following with regard to a stand alone Psychemedics hair test utilized to deny unemployment benefits:

We acknowledge that there are, arguably, no certainties in science. See Daubert v. Merrell Dow Pharmaceuticals, Inc., ___U.S.___, 113 S.Ct. 2786, 2795 (1993). Nonetheless, we conclude that RIA [hair] testing especially when coupled with a confirmatory GC/MS test, is now an accepted and reliable scientific methodology for detecting illicit drug use.

…we conclude that Holmes’ ingestion of cocaine, subsequently proven by the RIA screening and confirmatory GC/MS test constitutes misconduct within the definition of NRS. 612.385.

In Bass v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission. 627 So.2d 1321 (Fla. Dist. Ct. of Appeals, 1993), the plaintiff, a corrections officer, appealed from the decision of a hearing officer that her criminal justice certification should be revoked based on a positive urinalysis. The Court in Bass held that evidence of a negative Psychemedics hair analysis was erroneously excluded and that “the radioimmunoassay analysis of human hair to determine cocaine use is generally accepted in the scientific community.” On remand, the hearing officer disregarded the hair analysis results as well as a subsequent negative urinalysis result and again recommended the revocation of the plaintiff’s certification. The plaintiff appealed a second time in Bass v. Fla. Dept. of Law Enforcement, 712 So. 2d 1171 (Ct. App. Fla 1998), in which case the Court affirmed the ruling of the lower court holding that hair analysis should be admitted, as it is “precisely the tool which is used when there is a claim of error in a urinalysis for cocaine.”

In Koch et al. v. Harrah’s Club, 5 IER Cases 1295, 1990 WL 448060 (Nev. Dist. Ct.), the court determined that the employer’s mandatory drug testing policy, which includes Psychemedics radioimmunoassay (RIAH) hair screen test, is valid and does not constitute an unlawful invasion of privacy. If the RIAH hair screen
test is positive, a second type of test, namely mass spectrometry, confirms the RIAH screen test results.

In addition, in 2006 New York Police Department hearings upheld the termination of two officers based on drug positive test results obtained using Psychemedics hair test methods.

Parole Revocation

In United States v. Medina, 749 F. Supp. 59 (E.D. N.Y. 1990), the court ordered a hair test to determine if a probationer, in a parole revocation hearing, had violated his parole by utilizing drugs in the preceding months. In revoking parole, after a positive Psychemedics hair test, the court found that:

Extensive scientific writings on RIAH hair analysis establish both its reliability and its acceptance in the field of forensic toxicology when used to determine cocaine use.

In his decision, Judge Weinstein, the author of a treatise on evidence, analyzed the admissibility of hair analysis in the Medina case under the Federal Rules of Evidence as well as the older Frye evidence standard and concluded hair analysis was admissible under both. In addition, Judge Weinstein took judicial notice of extensive writings that support the acceptance of the reliability of RIAH.

Unemployment Insurance Appeal Board/Administrative Law Judge Decisions

The decisions of the Department of Labor to deny benefits to claimants who are terminated after receiving positive hair test results for drugs of abuse are routinely upheld by Administrative Law Judges and the State’s respective appeal or review boards. The decisions are upheld based on the established reliability of Psychemedics’ hair analysis, which is demonstrated in numerous peer reviewed scientific publications.

In the Matter of Claimant, Pennsylvania Unemployment Compensation Board of Review, Appeal 10-09-F-9637 (2011) and In the Matter of Claimant, Pennsylvania Unemployment Compensation Board of Review, Appeal 10-09-F-A579 (2011), the Psychemedics drug test results revealed that the respective Claimants tested positive for marijuana and testimony was presented regarding the testing procedures and chain of custody that the referee found credible.

In the Matter of Claimant, Louisiana Appeals Tribunal Docket No. C01016 AT 2008 (7/11/08), the Tribunal concluded that the testimony and evidence in this case indicates the claimant was terminated after failing a pre-employment drug test, relying on claimant’s hair test, which was positive for the presence of methamphetamine. In making its decision, the Tribunal stated that claimant was “well aware that the conditions of his employment depended on his passing a drug test [and] concluded that his actions were beyond what an employer has a right to expect of an employee and a deliberate violation of the drug policy.” Citing R.S. 23; 1601(10). The hair test relied upon by the Tribunal was conducted by the Psychemedics Corporation laboratory.

In the Matter of Claimant, Wisconsin Appeal Tribunal Decision, Hearing No. 05607159MW (11/22/05) the Court concluded that the claimant’s (employee) misconduct discharge was justified based on the Psychemedics hair test result, which was positive for the presence of cocaine.

In the Matter of Claimant, Wisconsin Appeal Tribunal Decision, Hearing No. 05607158MW (11/15/05) the Court concluded the misconduct discharge was just, since the substantial and credible evidence showed that the claimant tested positive for cocaine. “The positive results from initial screenings were confirmed by highly accurate mass spectrometry analysis,” both of which were conducted by Psychemedics. “Certified [lab] reports also indicate that the employer and laboratory personnel followed proper chain of custody procedures to insure that the specimens tested were those of the employee.”

In the Matter of Claimant, Wisconsin Appeal Tribunal Decision, Hearing No. 05606948MW (10/20/05) the Court determined that the claimant was discharged for misconduct connected with his work based upon the Psychemedics hair test result, which was positive for the presence of marijuana.

In the Matter of Claimant, State of New York Unemployment Insurance Appeal Board, A.L.J. Case No. 305-06949 (10/19/05), the Appeal Board affirmed the initial determination by the Department of Labor that the claimant be disqualified from receiving benefits because the credible evidence establishes that the claimant tested positive for cocaine in violation of the employer’s drug policy. In reaching its decision, the Appeal Board relied on the claimant’s hair test result conducted by Psychemedics Corporation.

In the Matter of Claimant, Wisconsin Appeal Tribunal Decision, Hearing No. 05200695EC (05/24/05) reversed the Wisconsin Department of Workforce Development’s initial benefit determination. In reaching this conclusion, the Appeal Tribunal relied on Psychemedics’ hair testing methods and stated “[t]he tests were conducted by a laboratory [Psychemedics]that was reputable in the skill and testing conducted. The laboratory has been certified by several states and the Food and Drug Administration of the federal government. Several courts have found that the type of testing performed by the laboratory was an accepted and reliable scientific methodology for detecting illegal drug use.”

Likewise, in another Wisconsin Appeal Tribunal Board decision the Court stated, “[t]he test was performed by a reputable laboratory [Psychemedics] licensed in several states … [and] … cleared by the Federal Food and Drug Administration.” In the Matter of Claimant, Hearing No. 05200958EC, p. 2, WI Appeal Tribunal
Decision (07/08/05) (reversing Wisconsin Department of Workforce Development determination).

In the Matter of Claimant, State of New York Unemployment Insurance Appeal Board, A.L.J. Case No. 105-03225 (5/09/05), the Appeal Board affirmed the decision of the Department of Labor that the claimant be discharged for legal misconduct for failing a reasonable suspicion drug test. In making its decision, the Appeal Board relied on the claimant’s hair test result (conducted by Psychemedics Corporation), which was positive for cocaine. The Appeal Board found that the claimant produced no compelling evidence that other substances he was taking produced a false reading.

In the Matter of Claimant, State of New York Unemployment Insurance Appeal Board, A.L.J. Case No. 005-03930 (3/11/05), the Appeal Board concluded that a proper chain of custody was followed by Psychemedics Corporation with respect to the claimant’s (employee’s) hair sample, that the claimant tested positive for the use of cocaine, and therefore the claimant lost his employment through misconduct and under disqualifying circumstances. Regarding the chain of custody, the Board stated that when the hair sample arrived at Psychemedics’ lab, the lab technicians checked the chain of custody, gave the sample a lab ID number, and tested the sample for the presence of drugs. Once the sample was found positive for cocaine, the lab decontaminated and then tested a second portion of the initial sample. The second sample also tested positive for cocaine and metabolites and, in light of the positive result for cocaine, the claimant was discharged.

In the Matter of Claimant, Louisiana Appeals Tribunal Docket No. N02312 AT 2004 (2/14/05), the Tribunal affirmed the decision that the claimant be discharged for legal misconduct for failing a random drug test. In making its decision, the Tribunal relied on the claimant’s hair test result (conducted by Psychemedics Corporation), which was positive for cocaine.

In the Matter of Claimant, New York Appeal Board No. 477610 (4/7/00), the Unemployment Insurance Appeal Board upheld the determination of the Administrative Law Judge, (A.L.J. Case No. 097-08521), in affirming the decision of the Department of Labor to disqualify a probationary police officer, (“claimant”), from receiving benefits. The claimant was disqualified after his termination due to willful misconduct. The claimant submitted to a hair test, which results were positive for cocaine use. The claimant argued that either the hair sample was contaminated due to his exposure to crack cocaine vapors, or that he “passively ingested” small amounts of cocaine. The Appeal Board found that due to the fact that the claimant’s results showed a cocaine level 4-8 times the cutoff level and that benzoylecgonine, a cocaine metabolite, was also detected, it was unlikely that the claimant “passively ingested” cocaine. The Appeals Board recognized that it had previously been demonstrated to the Board successfully that Psychemedics’ laboratory’s washing techniques eliminated the issue of external contamination.

In re Claim of Claimant, B 95-02542-000 (1996), the State of Ohio Unemployment Compensation Board of Review, (“Board of Review”), overturned the Hearing Officer’s ruling that the claimant was discharged without just cause and was entitled to benefits. The Board of Review found that expert testimony demonstrated the reliability of the Psychemedics hair test, which detected quantities of marijuana in the claimant’s hair.

In the Matter of Claimant, Nevada Appeal Case No. R7-1908 (1997), the Nevada Office of Appeals, citing the Holmes and Medina cases discussed above, found that Psychemedics RIAH testing is a valid drug testing methodology and concluded that RIAH testing, when coupled with a confirmatory test, is now accepted and reliable scientific methodology for detecting illicit drug use. Based

on these test methods, the Claimant tested positive for marijuana use and was ineligible for benefits.

See also In the Matter of Claimant, State of New York, A.L.J. Case No. 006-07163 (2006); In the Matter of Claimant, State of New York, A.L.J. Case No. 099-17766 (1999); In the Matter of Claimant, State of New York, S.S.A. No. 120-42-0562 (1998); In the Matter of Claimant, State of Indiana, Case No. 93-1BA-110B (1994); and In the Matter of Claimant, State of New York, Index No. 121899 (1998).

Arbitrations

In the Matter of Valero Refining Company Arbitration Case No. __________, (September 2010), the arbitrator ruled in favor of the Company based upon a cocaine positive hair test analysis by Psychemedics’ laboratory.

In the Matter of Valero Refining Company Arbitration Case No. 183000116006, (September 16, 2007), the arbitrator ruled that the Company did have cause for termination of the employee based on the cocaine positive hair test analysis performed by Psychemedics’ laboratory. The arbitrator found that the Company was reasonable in terminating the employee (who worked in a safety-sensitive position, in a safety-sensitive environment) when that employee tested positive for cocaine in a test performed in accordance with the terms of a collective bargaining agreement.

In the Matter of the Valero Energy Corporation Arbitration Re 691600223006, Baton Rouge, LA (November 28, 2006), the arbitrator ruled in favor of the employer, stating that “the authenticity and chain of custody of the lab [Psychemedics] testing done on the samples … were compelling and persuasive.” Under Louisiana law the claimant could be terminated at any time as long as that discharge was not based on any discriminatory or illegal motive. “The evidence is quite compelling that the drug test results and analysis by Psychemedics to Valero indicate [the claimant] had violated the terms of [employment]” and the termination was not illegal and/or discriminatory.

In Whirlpool Corporation and IUE, Local 808, (2006), the arbitrator accepted as accurate and reliable Psychemedics’ test results, stating “Psychemedics subjected the grievant’s hair sample to the most rigorous scientific testing processes available including mass spectrometry analysis.” The arbitrator also noted that “the U.S. Food and Drug Administration is a neutral governmental body with expertise on the necessary protocols and methodologies laboratories must follow to produce valid test outcomes. Since FDA has certified Psychemedics’ hair testing procedures as accurate and reliable, the Arbitrator finds that its test results merit acceptance…”

In Fraternal Order of Police, Lodge 5 and City of Philadelphia, Case No. 14-390-002180-03 (2005), the arbitrator found just cause to dismiss the police officer based upon Psychemedics’ positive drug test for cocaine. The arbitrator ruled that the City need not prove the means by which the illegal drug entered into the Grievant’s body. Rather, “…where there is a positive, confirmatory test on record , the City’s burden under the just cause standard has been fulfilled.”

In International Truck & Engine Co. and International Union United Automobile Aerospace and Agricultural Implement Workers of America, Local 6, Grievance Nos. 150, 211, and 212, (2001), the arbitrator ruled that a positive Psychemedics hair test was a proper basis for the termination of an AAAIW covered employee on a Last Chance Agreement. The arbitrator stated “…there is no basis on which to reject the finding of substantial cocaine usage …The inescapable conclusion is that Grievant violated a condition of the Last Chance Agreement as he was unable to pass the drug screen.”

In City of Boston and Boston Police Patrolmen’s Association, Case No. 16-1352 (2001), the arbitrator held that the reduction of cut-off levels for the confirmation of safety-net samples is scientifically reasonable and ensures the accuracy and integrity of the test.

Hair testing has been upheld consistently in arbitrations between United States Steel and its unions

Hair analysis has also been upheld in arbitrations between Anheuser-Busch, Inc. and its unions:

Hair analysis was also upheld in US Steelworkers Local 4134 & Lone Star Steel Co., Case No. D22-96 (1997); Battle Mountain Gold Co. & Operating Engineers Local 3 (1998); Cooper Tools and United Automobile, Aerospace, Agricultural Implement Workers of America, AFL-CIO, Local 1774, Grievance No. 005 (2000); and United States Steel, a Division of USX Corp. and United States Steelworkers of America, Local 1014, Case Nos. USS-41, 820 (2001) and USS-43, 080 (2003), as well as In the Matter of Employee and Kraft Foods, Fullerton, CA and In the Matter of Employee and Kraft Foods, Tulare, CA (2007).