Former Middletown man’s false-positive drug test leads to lawsuit

http://www.recordonline.com/news/20170205/former-middletown-mans-false-positive-drug-test-leads-to-lawsuit

A drug test can change your life.

Test positive one day for an illicit drug, and you can lose your job, or your kids, your marriage or your freedom.

He was two weeks from finishing probation for a felony forgery conviction. And then, a saliva drug screen showed a false-positive for marijuana.

“I was a guy that was, for the first and only time in his life, engaged to be married and become a stepfather to two young girls, was at the beginning of living and working in a perfect kind of town for me – Albany, and had career and business plans and opportunities stacked up and waiting to be activated by, and all timed, with one thing: the end of that probation sentence,” Landon said.

“And none of that ever got to happen.”

If not for Landon’s natural wariness – a trait that led him to get his own blood tests and to document everything – he would likely have gone to prison on that false-positive screen.

Instead, he’s David taking on a Goliath, and he helped make a new law.

Landon is suing the testing company, Kroll Laboratories LLC, in Orange County Supreme Court for negligence over its failure to follow established scientific and state standards for testing and reporting of results.

He is seeking damages for his loss of liberty and for emotional and psychological harm.

This negligence claim – that a testing lab has a “duty of care” or responsibility to the person being tested – did not exist in New York law until Landon’s case.

Jackie Lustig, the senior director of corporate communications for Alere Toxicology, which now owns Kroll, said the company does not comment on ongoing litigation.

Lawyer Mitchel Ochs of Manhattan-based Anderson & Ochs LLP, who represents Kroll in Landon’s lawsuit, did not respond to multiple phone calls and an email seeking comment on the case.

In legal papers and during in-court arguments, Ochs has argued that Kroll’s labs did everything they were supposed to do in processing Landon’s sample.

Kroll denies that Landon has suffered damage that can be recovered through a negligence claim.

“Our argument is that nothing we did was the legal cause of the harm he claims,” Ochs argued in court on Aug. 18, 2015, according to a transcript.

“It was the county that took our – our results. It was the county that decided to do additional testing. It was the county that decided to commence violation of parole (sic) proceedings.”

According to court papers, Kroll offered, at one point, to settle Landon’s claim for $100,000.

Landon said he turned down the offer on principle. He wants his day in court.

Orange County spokesman Justin Rodriguez said the county no longer uses Kroll or Alere.

Since 2012, probation has used instant tests – three different companies since then, as pricing changes and technology improves – to administer the roughly 4,000 drug tests the department conducts annually.

As of late January, about 2,400 people were on probation in Orange County – about 40 percent of them for felonies.

‘Fatally flawed’

Landon said his case is about the principle.

“I want every probationer to find out that they should get their own blood test,” he said.

Documents show that Landon’s Dec. 17, 2007 specimen, once screened, didn’t contain enough material for confirmation.

New York’s testing standards – which labs must follow to maintain a license to operate in the state, and which Kroll was obliged to follow by its contract with Orange County – require that an insufficient sample be discarded as “fatally flawed.”

If Kroll had followed those requirements, there would have been no extension of probation and no anguish, Landon argues.

In 2001, Landon was arrested on forged-prescription charges.

He says he had been prescribed opioids for intractable migraines and became dependent, but he makes no excuses for the crime.

He pleaded guilty to second-degree forgery, a felony, and was sentenced in January 2002 to five years of probation.

An early drug test showed positive for marijuana; Landon said that, too, was a false-positive.

He started getting his own blood tests immediately after every probation test.

False-positives can be caused by environmental exposure to a drug, or by medications. Confirmation testing weeds out those false alarms.

Dec. 17, 2007 was supposed to be Landon’s last probation appointment.

He had a full-time retail job and part-time funeral services work waiting for him upstate.

“I was laying the first row of bricks in the foundation in Albany, when everything was made different – and far worse – for me,” Landon said.

The probation officer asked him to take one last drug test, using the then-standard OraSure Intercept saliva swab kit.

Court documents show that Kroll notified the probation officer of the positive screen on Dec. 20, 2007.

She requested a confirmation test and filed paperwork to revoke probation, charging Landon with testing positive for marijuana and denying that he had used marijuana.

Kroll’s documentation shows that they could not perform the confirmation because the sample was insufficient.

Court of Appeals victory

On Jan. 2, 2008, Judge Jeffrey Berry extended Landon’s probation until the test issue could be resolved, despite Landon’s proof of clean blood test results and despite him passing a urine test that morning at the courthouse.

As the probation fight unfolded, Landon says, his relationship with his long-term girlfriend deteriorated.

Landon and his lawyer demanded a hearing.

In mid-March 2008, according to court papers, probation withdrew the revocation petition, and Judge Berry released Landon from probation.

Landon said he called a lawyer from the parking lot to start his lawsuit.

As the civil case began, Landon’s relationship with his girlfriend ended. He moved to Erie, Pa., hoping for a fresh start.

Lawyers Robert Isseks and Kevin Bloom filed a federal class-action lawsuit against Orange County, probation, the probation officer and her boss, and Kroll on behalf of Landon and others similarly situated.

That case was dismissed after they failed to amend a flawed complaint.

The lawyers then filed a new class action against Kroll in Orange County Supreme Court, but the court dismissed the claim, accepting Kroll’s argument that they were responsible only to the county.

By the time the state’s highest court was ready to hear his appeal, Landon had parted ways with Isseks and Bloom over strategy disagreements.

Landon argued his own case before the Court of Appeals on Sept. 3, 2013. His victory there resurrected his lawsuit.

Landon’s life revolves around the litigation.

He does his legal research at the Erie County, Pa., courthouse.

He writes his own briefs, investigates witnesses, and makes the six-hour drive to argue his case in court.

He has devoted his limited spare time and money to rescuing and caring for stray cats.

“I haven’t sat in a restaurant in eight years,” he said. “I haven’t been on a date. I haven’t been to a concert.”

His case survived bids by Kroll for dismissal in 2015 and again in November.

Landon lost his economic harm claim because he couldn’t document the expenses and losses, but Orange County Supreme Court Judge Catherine Bartlett ruled that his claims on loss of liberty and emotional harm will go forward.

Kroll appealed the latest ruling.

Landon’s case returns to court for a pretrial conference on March 30, when Judge Bartlett will likely set the trial date.

 

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