Second Circuit certifies two novel questions to New York's highest court (updated 1/5/16)

Pasternack v. Lab. Corp. of Am. Holdings, No. 14-4101-cv (2d Cir. Nov. 17, 2015).

 Specimen bottles (credit: Steven Depolo / flickr)

Specimen bottles (credit: Steven Depolo / flickr)

Fred Pasternack, a physician and part-time commercial pilot, was selected for an FAA-mandated random drug test. When he arrived at LabCorp’s testing site, he was told that he hadn’t provided enough urine and had to wait. Pasternack was supposed to see a patient soon, though—could he leave and come back? There was no objection. Pasternack left, returned three hours later, and provided a urine sample that tested negative. And yet LabCorp determined that when Pasternack left to see a patient, it counted as a “refusal to test.” 

As a result, the FAA revoked Pasternack’s pilot’s license. After seemingly interminable litigation with the FAA, Pasternack eventually got his license back—but he remains understandably angry at LabCorp, the company that caused the mess in the first place by saying he had refused to be tested. Pasternack has sued LabCorp for negligence and fraud under New York law. 

This suit presents fascinating questions of law. Did LabCorp owe Pasternack a duty of care, particularly in light of the duties that LabCorp had under federal drug-testing regulations? And does Pasternack have a valid fraud claim when it was the FAA, rather than Pasternack himself, that relied on LabCorp’s allegedly false statements? These are novel questions of state law that the Second Circuit is unwilling to answer. So it certifies these questions to New York’s highest court. 

Ill be sure to post an update if the New York Court of Appeals accepts the certified questions and issues an opinion.

UPDATE: The New York Court of Appeals has accepted the certified questions, which it will answer after further briefing and argument.