It is understood by the student whose Student Number is entered below that this examination is given and the student's response is made and submitted pursuant to the conditions of the Honor Code.
Student Exam No. ______________
UNIVERSITY OF MISSOURI-KANSAS CITY
SCHOOL OF LAW
Law #513 Professor Levit
Defamation, Privacy, Relational & Emotional Torts Winter Semester, 2000
Materials that may be used during examination: None. This is a closed book examination.
1. Read each question carefully and pay close attention to the facts and to what the question is asking you to do. Discuss all issues presented by a question. Remember to argue issues both ways. Do not engage in a discussion of issues not raised.
2. I have included all of the facts I think you will need to answer the questions. If a necessary fact is missing, please identify it in your answer and explain how it affects your conclusion.
3. Nothing is intentionally ambiguous. If anything about a question appears to be ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized.
4. Please write legibly, because I can only give credit if I understand what you write.
I can also only give credit for answers that are written in the bluebook.
5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You are penalized for an answer which is disorganized and confusing.
6. Unless otherwise specified, the applicable law is the law of this State, the State of Indifference, which consists of all cases in your casebook and any cases discussed in class.
7. This exam consists of 13 pages. TURN IN THIS EXAMINATION WITH YOUR BLUE BOOKS. It is an Honor Code Violation to fail to turn in the examination itself. Good luck!
Pete Lowry was a major and second in command to Police Chief Dana Stanley in the 125 person Police Department in Sweetwater County in the State of Indifference. His duties included hiring and training of new personnel; evaluation of personnel within the police department, reviewing and initiating disciplinary actions taken regarding police personnel, and acting as the chief liaison officer between the Police Department and all other law enforcement agencies and media. Police Chief Stanley reports to the Police Board of Commissioners.
The Police Department contracted with Afton Labs, a private, properly certified laboratory, to collect and analyze urine specimens of the department’s employees from time to time for drug and alcohol testing. In January of 2000 Lowry was randomly selected for the test in accordance with the Police Department’s substance abuse policy. Under the policy, those employees who worked in safety-sensitive positions were required to take random tests for drugs and alcohol. The Police Department employed a computerized random number generator to determine which employee would be tested and on what date the testing would occur. The policy called for an average of two tests per classified employee each calendar year.
An employee of Afton Labs supervised the collection of a urine specimen from Lowry and had him complete a medical history form on which he was to list all medications recently used. Lowry was not asked what foods he had eaten in the days prior to the test. The test of Lowry’s urine revealed the presence of opiates and Afton Labs reported these results to the Police Department. When the Police Department advised Lowry that his drug test was positive, he denied using illicit drugs. Lowry learned through his own research that eating poppy seeds can cause a drug test result positive for opiates and he attempted to attribute the test result to having eaten several poppy seed muffins in the days before the test. He told the Police Department this and asked that the Department have Afton Labs retest his sample.
A positive drug test can result from a variety of sources that do not indicate improper drug use, such as using an over-the-counter inhaler, ingestion of poppy seeds, or from inhaling second-hand marijuana smoke. But Afton Labs does not tell any test subjects of these problems because the more possibilities that are suggested to the person tested, the more explanations the person will have for positive results. Of the more than 4,000 persons Afton Labs has screened for drugs during its five years of operation for twenty different companies and departments, none besides Lowry has ever claimed a positive result due to ingestion of poppy seeds.
Based on Afton Labs’ report, Police Chief Stanley, according to police department policy, suspended Lowry without pay on February 1, 2000, pending an internal review by the Police Board of Commissioners. As part of the regular procedure for handling suspended employees, Police Chief Stanley told the officer in charge of the drug evidence lockers that Lowry was not allowed to have access to the evidence area until further notice. “We just don’t want any evidence disappearing,” Stanley winked.
Upon Lowry’s request, on February 3, 2000, Afton Labs gave an expert hired by Lowry a portion of his urine sample for re-testing. Lowry’s expert, a forensic toxicologist, confirmed that the test accurately identified opiates in his urine, but found several problems with Afton Labs’ testing procedures.
The expert stated that Afton Labs should have had a medical review officer re-examine Lowry’s urine specimen in light of the positive findings and his claim regarding the ingestion of poppy seed muffins in the days before the tests. He noted that while medical review officers are required by federal regulations for Department of Transportation and some other federally mandated tests, they are not required by most states, and this includes the State of Indifference. However, the expert explained that he believes it is improper not to have one for contested cases. The expert’s report further stated: “Certain types of poppy seeds, if consumed in sufficient quantity, can produce a positive result for opiates. Since the drug contained in these seeds (in minute quantity) is related to the opiates used by drug offenders, there is no way to completely eliminate this potential problem.” And the expert gave his opinion that it was improper for Afton Labs not to ask its test subjects what foods they had eaten in the several days before the test. The expert submitted this statement in an affidavit to the Police Board of Commissioners on February 15, 2000.
In reviewing Lowry’s case, the Police Board of Commissioners asked Afton Labs about having a medical review officer re-examine Lowry’s test specimen. Afton Labs replied that it did not employ a medical review officer to revisit positive findings because that would be extremely costly and Afton Labs would have to pass those costs on to its customers.
Lowry’s suspension pending a hearing and the reason for it – that he had used illegal drugs – were reported on February 18, 2000, by the local newspaper, the Times-Picayune, which cited “unnamed sources” as originating the story. The Times had actually heard the story from Stanley, who had called a reporter friend of hers one night from her home phone to give the friend a scoop, but who had insisted on anonymity. The Times-Picayune tried to reach Lowry for comment, but his telephone number was unlisted. After the administrative hearing before the Police Board of Commissioners, who simply did not believe Lowry’s “muffin defense,” Lowry’s employment was terminated on March 1, 2000.
Lowry subsequently sought work as a security guard. On March 8, 2000, Police Chief Dana Stanley received a telephone message from a prospective employer at a computer firm where Lowry had applied for a security position. Stanley’s secretary marked the message slip “Seeking Job Recommendation for Lowry.” Rather than risk saying something negative or just giving the minimal verification of name, rank and fact of dismissal that the Police Department policy allowed, Stanley did not return that call or any of the three subsequent calls from the computer firm. The computer firm did not make Lowry a job offer.
Lowry comes to your office and wonders whether he has any viable causes of action.
(1) Use only tort theories we have covered this semester (e.g., regarding his employment situation, sue only for common law tort claims, not for statutory employment or discrimination claims).
(2) Develop only those claims in which Lowry is the plaintiff. Caption each tort.
(3) Sue only parties who have been named in the facts (e.g., do not sue Lowry’s expert or the computer firm).
(4) Be sure to include possible defenses or responses that the defendants might raise.