Irvin H. Dauphine, Jr. v. Disa Global Solutions, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-293

IRVIN H. DAUPHINE, JR.

VERSUS

DISA GLOBAL SOLUTIONS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. C-20185493-J
HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE
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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Charles G. Fitzgerald, and Gary J. Ortego,
Judges.

REVERSED AND REMANDED.

Pamela W. Carter
Quintairos, Prieto, Wood & Boyer, P.A.
9217 Jefferson Highway
New Orleans, LA 70123
(504) 527-5055
COUNSEL FOR PLAINTIFF/APPELLANT:
Irvin H. Dauphine, Jr.

John S. Troutman
Brian W. Capell
Liskow & Lewis
822 Harding Street
Lafayette, LA 70503
(337) 232-7424
COUNSEL FOR DEFENDANT/APPELLEE:
DISA Global Solutions, Inc., AKA DISA Inc.

Charles H. Hollis
The Kullman Firm
1100 Poydras Street, Suite 1600
New Orleans, LA 70163
(504) 524-4162
COUNSEL FOR DEFENDANT/APPELLEE:
Psychemedics Corporation

COOKS, Chief Judge.

Plaintiff, Irvine Dauphine, Jr., was hired in May of 2015 as an offshore

management professional for Supreme Services & Specialties, Inc. Supreme

contracted with DISA Global Solutions, Inc., to establish a drug testing program for

its employees. All employees upon hiring were required to enroll in the drug testing

databases. While employed by Supreme, Plaintiff was informed on August 10, 2017

that he had been selected for a random drug test. That same day, Plaintiff went to

AHS Youngsville Clinic where hair was cut from his arm by using a razor.

The hair collected at the AHS Youngsville Clinic was then sent to a

Pychemedics Corporation laboratory for testing. On August 16, 2017, Plaintiff was

notified the hair test came back positive for marijuana. Plaintiff was then informed

he was suspended from his employment. Plaintiff maintained he was shocked by

the test results as he had not used or been in the presence of marijuana to his

knowledge and went about trying to “clear his name.”

On August 17, 2017, Plaintiff stated he went to Secon in Lafayette for

independent hair and urine drug tests. According to Plaintiff, the results of these

tests were negative for any drugs. In hopes of getting his job back, Plaintiff sent the

drug test results to Supreme and DISA was made aware of the negative results.

Plaintiff also requested his employer allow a re-test of his hair specimen

sample. This was allowed though Plaintiff was required to pay the out-of-pocket

expenses for the re-test. Due to an insufficient hair sample from the August 10, 2017

hair collection, a new hair specimen was collected on August 22, 2017 at Med-Xcel

in Broussard, Louisiana.

On August 24, 2017, Plaintiff’s hair specimen was determined to be a negative

hair result. Psychemedics released that negative lab result on August 26, 2017.

University Services, who was the Medical Review Officer, confirmed the negative

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finding and contacted Supreme informing it the test was negative for drugs.

Plaintiff’s suspension was lifted and he returned to work on August 29, 2017.

The same day Plaintiff returned to work, DISA contacted Psychemedics and

requested they re-run the August 22, 2017 drug test as a confirmatory test rather than

an initial hair test. Psychemedics did as requested and subsequently determined it

would reverse Plaintiff’s original negative result to a positive result. Explaining the

confusion, DISA stated in its brief:

The level of metabolites [on the August 22 re-test] would not have been
considered positive on an initial screening, but a second test of a
specimen then at a later date uses a lower cut-off level, called limit of
detection, so that time alone does not turn a prior positive into a
negative. There was some internal confusion as to which cutoff level
was to be applied to the confirmation test, but once that was cleared up,
the test was properly reported as positive on August 31.

Plaintiff, who had returned to his job duties on August 29, 2017, was not informed

of the reversal of the re-test from negative to positive until September 8, 2017. He

was fired from his employment with Supreme on that same day.

Plaintiff filed a Petition for Damages on September 4, 2018, asserting the

erroneous hair test resulted in damages “including without limitation, lost

employment (past, present, and future), lost wages (past, present, and future), lost

employment benefits, loss of enjoyment of life, damaged credit rating, humiliation,

damaged reputation, defamation, defamation per se, punitive damages,

embarrassment, disrupted home life, disrupted/damaged marital relationship, lost

bonuses, lost medical benefits, lost earnings on retirement benefits, and emotional

pain and suffering.” Named as Defendants in the petition were DISA, AHS Walk-

in Clinic, Inc., Med-Xcel, Psychemedics, Dr. Barry Sachs (an individual and agent

of DISA, via designation as the Medical Review Officer), and Dr. Randy B. Barnett

(an individual and agent of DISA, via designation as the Medical Review Officer).

Pertinent to this appeal, both Psychemedics (on July 13, 2021) and DISA (on

October 1, 2021) filed peremptory exceptions of prescription, contending Plaintiff’s

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lawsuit was filed after the applicable one-year prescriptive period had run. Both

Psychemedics and DISA contended the prescriptive period began when Plaintiff was

suspended from his employment on August 16, 2017 and not when he was

terminated from his employment on September 8, 2017. Plaintiff filed an opposition

to the exceptions and a hearing on the matter was set for December 6, 2021. After

hearing oral argument, the trial court orally granted Psychemedics’ and DISA’s

exceptions of prescription. On December 13, 2021, the district court issued written

reasons granting the exception, opining that Plaintiff “knew or should have known

the facts upon which his cause of action is based after he received a false positive

test result of the sample that was submitted on August 10, 2017.” Plaintiff timely

appealed the trial court’s grant of the peremptory exception of prescription

dismissing his case with prejudice.

ANALYSIS

The peremptory exception of prescription is provided for in La.Code Civ.P.

art. 927. It is not disputed by the parties that Plaintiff’s claims are subject to the one-

year prescriptive period for delictual actions set forth in La.Civ.Code art. 3492. An

appellate court reviews the exception under the manifest error standard of review if

evidence is introduced in support or contravention of the exception. Dugas v. Bayou

Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. If not, the

appellate court “simply determines whether the trial court's finding was legally

correct.” Id. at 830.

The party urging the exception of prescription bears the burden of proving

facts sufficient to support the exception. Dauzart v. Fin. Indem. Ins. Co., 10-28

(La.App. 3 Cir. 6/2/10), 39 So.3d 802. “[T]he standard controlling review of a

peremptory exception of prescription requires that this court strictly construe the

statutes ‘against prescription and in favor of the claim that is said to be

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extinguished.’” Id. at 805 (quoting La. Health Serv. v. Tarver, 635 So.2d 1090, 1098

(La. 1994).

The timeline in this case is not disputed. Plaintiff was requested to submit to

a random drug test on August 10, 2017. Plaintiff complied with that request and was

informed on August 16, 2017 the hair sample he provided on August 10 came back

positive for traces of marijuana. On that date Plaintiff was suspended from his job.

Plaintiff then requested he be allowed to have a re-test of his hair sample performed,

which was allowed at Plaintiff’s expense. Due to an insufficient hair sample from

the August 10, 2017 hair collection, a new hair specimen was collected on August

22, 2017 from Plaintiff. On August 24, 2017, Plaintiff’s hair specimen was

determined to be a negative hair result. Psychemedics released that negative lab

result on August 26, 2017, which was confirmed by the Medical Review Officer,

and Plaintiff’s employer was informed the test was negative for drugs. Plaintiff’s

suspension was lifted and he returned to work on August 29, 2017. On the day

Plaintiff returned to work, DISA contacted Psychemedics and requested they re-run

the August 22, 2017 drug test using a different test. Plaintiff was not informed of

this unilateral action on the part of DISA and Psychemedics. After re-running the

test using lower cutoff levels, the result was changed to a positive finding. This

change was communicated to Plaintiff’s employer, who then terminated Plaintiff

from his employment on September 8, 2017.

Louisiana Civil Code Article 3492 provides that “prescription commences to

run from the day injury or damage is sustained.” DISA and Psychemedics argue that

Plaintiff suffered injury and damage when it was found he tested positive for

marijuana on August 16, 2017 and he was suspended from his employment. This

argument ignores the fact that Plaintiff was reinstated to his employment on August

29, 2017 after he was told by his employer that the results of his re-test were

negative. To Plaintiff’s knowledge the re-test came back negative as to any presence

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of drugs and he was allowed to return to work. At that point in time, Plaintiff had

no reason to believe he had any further employment problems stemming from the

August 10, 2017 positive test, because he had been exonerated by the re-test and

returned to full employment. DISA has attempted to explain the initial negative

result on the re-test by stating the hair specimen on the re-test was first tested as an

initial test rather than a confirmatory test, which uses a lower cutoff level. DISA

blamed this on “internal confusion as to which cutoff level was to be applied.”

Regardless of the reasons, it is important to note that none of this was known to

Plaintiff at the time he was informed of the negative result and his reinstatement to

work. He was only aware he had not tested positive, his suspension lifted and his

employment restored. Therefore, as of August 29, 2017, Plaintiff believed his

employment status had returned to what it was prior to his suspension. It was not

until September 8, 2017, that Plaintiff was informed the re-test had been reclassified

as a positive result and he would be terminated from his employment.

In Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La.1987)

(emphasis added), the Louisiana Supreme Court set forth the test for what constitutes

notice sufficient to mark the commencement of prescription:

Prescription will not begin to run at the earliest possible indication
that a plaintiff may have suffered some wrong. Prescription should
not be used to force a person who believes he may have been damaged
in some way to rush to file suit against all parties who might have
caused that damage. On the other hand, a plaintiff will be responsible
to seek out those whom he believes may be responsible for a specific
injury.

When prescription begins to run depends on the
reasonableness of a plaintiff’s action or inaction.

We find Plaintiff was not unreasonable in believing any employment

problems he incurred from the initial positive drug test was reconciled by the

negative finding he received initially on the August 22, 2017 re-test. His suspension

was lifted by his employer and he returned to work on August 29, 2017. We agree

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with Plaintiff that he was reasonable in relying on relied on Psychemedics’

laboratory finding, the Medical Review Officer’s confirmation of the negative

finding and his employer’s confirmation that all had been resolved when it reinstated

Plaintiff to his job duties on August 29, 2017. That did not change until he was

informed on September 8, 2017 that the re-test had been changed to a positive

finding and he was fired by his employer.

Similarly, in Eastin v. Entergy Corp., 03-1030, p. 4 (La. 2/6/04), 865 So.2d

49, 54, the Louisiana Supreme Court, in an age discrimination case, found that the

damages for purposes of prescription is sustained “at the earlier of the date the

employee is informed of his termination or his actual separation from employment.”

In this case, Plaintiff was informed and terminated from his employment on the same

date, September 8, 2017.

When the jurisprudence is coupled with the settled rule of law that a “court of

appeal strictly construe the statutes against prescription and in favor of the claim that

is said to be extinguished,” we find the trial court legally erred in granting the

exception of prescription in this case. See Dauzat, 39 So.3d at 805. Plaintiff’s suit,

filed on September 4, 2018, was timely.

DECREE

For the foregoing reasons, the judgment granting the exception of prescription

is reversed, and the matter is remanded to the trial court for further proceedings. All

costs of this appeal are assessed to appellants, Psychemedics Corporation and DISA

Global Solutions, Inc.

REVERSED AND REMANDED.

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