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U.S. judicial decisions.

Drug testing. An appellate court has ruled that an airline employee's state lawsuit against a drug testing lab is not preempted by federal law. The case, in which a lab was found negligent in analyzing a urine sample, was consistent with federal law and could not be preempted, according to the court.

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Yasuko Ishikawa, a Delta flight attendant, was flying from Japan to Portland, Oregon, on September 20, 1999. During the flight, Ishikawa was notified that she would be required to take a random drug test when the plane landed. Over the course of the nine-hour flight, Ishikawa drank several liters of water and tea. When the plane landed, she provided a urine sample for the drug test.

The drug testing laboratory, LabOne determined that the creatinine level in Ishikawa's urine was too low (at 5 mg/dL) and was not consistent with human urine. The lab reported that the sample had been diluted or substituted. Delta, in accordance with company policy, considered this a failure to submit to a drug test and fired Ishikawa.

The urine sample Ishikawa gave had been split so the second half of the sample was tested by another laboratory. The new test found that while the specimen was diluted, it was not substituted or invalid. The test found the creatinine level to be 5.3 mg/dL.

Ishikawa was rehired by Delta and the company paid her $68,920 in lost pay. Ishikawa then sued LabOne for negligence in handling her drug testing sample.

At the jury trial, evidence indicated that LabOne's computer system rounded the creatinine levels to an integer so the 5.3 level became 5. This was critical because a level 5 indicated substitution but 5.3 did not. The jury found that LabOne was negligent and awarded Ishikawa $400,000 in damages.

In appealing the decision, LabOne argued that Ishikawa could not bring suit in state court at all because federal law--the Omnibus Transportation Employee Testing Act of 1991--preempted any state claim.

The court found in favor of Ishikawa, finding that federal law prohibits state tort claims that are inconsistent with federal law. However, the court ruled LabOne did not provide evidence that Ishikawa was pursuing a lawsuit based on an inconsistent standard. In the written opinion of the case, the court noted: "We cannot see how the duty the state common law imposed, that LabOne test urine and report the results with due care, could be inconsistent with the federal guidelines, which require the same thing with more specificity. It is not as though the state law had one creatinine standard, the federal government another." (Ishikawa v. Delta Airlines, Inc., and LabOne, Inc., U.S. Court of Appeals for the Ninth Circuit, No. 01-35863, 2003)

Negligent training. The Mississippi Supreme Court has ruled that a retail store can be held liable for the acts of an untrained employee. In the case, a store manager pursued and assaulted a would-be shoplifter.

On March 19, 1999, Heather Gamble stopped by the Dollar General Store in Purvis, Mississippi, in order, she told the court, to purchase a new shirt. Gamble, a 19-year-old college student, said she looked around the store but didn't find anything she liked. Gamble then left the store and got into her car. As she was driving away, Gamble saw a Dollar General employee, Sheri Thornton, running up behind her car and writing something down.

When Gamble arrived at the Family Dollar store to continue her search for a shirt, she noticed that the individual from the Dollar General store had followed her and parked directly behind her car. Gamble asked Thornton what was going on. Thornton approached Gamble and asked what the girl had in her pants. Gamble patted her pockets but could find nothing wrong. Then, Thornton grabbed Gamble's underwear from the back and pulled them up. According to court testimony, Gamble realized at this point that she was being accused of shoplifting. Gamble denied the allegation and Thornton left, saying that she was satisfied that Gamble had not stolen anything.

Gamble went to the police station to report the incident. The officers who took the report noted that Gamble was upset and crying. Gamble told the police that she felt she had been assaulted and humiliated by the incident.

On April 6, 1999, Gamble filed a lawsuit against Dollar General store for assault, negligent training, intentional infliction of emotional distress, and punitive damages. The jury found in favor of Gamble and awarded her $75,000 in actual damages and $100,000 in punitive damages. Dollar General appealed the decision.

In the hearing before the Mississippi Supreme Court, Dollar General argued that it had a written shoplifting policy that stated that no employee should leave a store to pursue a shoplifter. The policy also warned that no employee should ever touch a suspected shoplifter. The store noted that Thornton read the policy and signed a release saying that she understood the policy. Attorneys for Gamble argued that Thornton had not received any training on the policy. Thornton, a regional manager, was required to go to other stores to train employees on shoplifting prevention. However, Thornton herself had not been trained. The court ruled that the jury verdict was reasonable "based on Dollar General's failure to show any training provided to Thornton other than handing her a manual."

However, in considering whether punitive damages should be awarded, the court noted that Dollar General did have a written policy and Thornton ignored this policy. The court ruled that because Thornton ignored the policy and pursued Gamble on her own initiative, punitive damages against Dollar General were inappropriate. (Gamble v. Dollar General Store, Mississippi Supreme Court, No. 2000-CA-01545-SCT, 2003)
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Title Annotation:case against Delta Airlines Inc's flight attendant
Author:Anderson, Teresa
Publication:Security Management
Geographic Code:1U5GA
Date:Jan 1, 2004
Words:951
Previous Article:ASIS Conference: International security management.
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