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Bagnola v. SmithKline Beecham Clinical Laboratories

August 23, 2002

JAMES A. BAGNOLA, PLAINTIFF-APPELLANT,
v.
SMITHKLINE BEECHAM CLINICAL LABORATORIES, AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Sophia Hall, Judge Presiding.

The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Plaintiff, James Bagnola, appeals an entry of summary judgment in favor of defendants, SmithKline Beecham Clinical Laboratories (SBCL) and the City of Chicago (City) on his cause of action for spoliation of evidence. In 1991, the Chicago police department ordered plaintiff, a Chicago police officer, to submit to random drug testing. Plaintiff submitted two urine specimens, which were sent to SBCL for testing. Both specimens tested positive for cocaine. The superintendent of the Chicago police department (the Department) brought charges against plaintiff on September 4, 1992 seeking to discharge plaintiff from his position as a Chicago police officer for knowingly possessing cocaine. SBCL destroyed both urine specimens in February of 1994. On March 29, 1995, plaintiff filed in the Law Division of the Circuit Court of Cook County this cause of action for spoliation of evidence against the City and SBCL based on the destruction of the urine specimens. The Police Board of the City of Chicago (the Board) conducted an extensive evidentiary hearing regarding plaintiff's discharge from his position as a Chicago police officer. The hearing took place in May, June, July and August of 1995. In November 1995, the Board found that despite the destruction of the specimens, based on the positive drug tests, plaintiff violated police department rules and ordered him discharged. Plaintiff filed an administrative review in the circuit court, which upheld the Board's decision. Plaintiff appealed, and this court affirmed. Rodriguez v. Bagnola, 297 Ill. App. 3d 906 (1998).

Plaintiff's cause of action for spoliation of evidence against the City and SBCL alleges that because of the destruction of the urine specimens, plaintiff could not have the urine specimens independently analyzed and could not present an effective defense to the Department's charges. Defendants moved for summary judgment. The City argued it had no duty to preserve the specimens, collateral estoppel and res judicata barred plaintiff's cause of action and it was immune from liability. SBCL similarly argued that plaintiff's cause of action was barred and that it owed plaintiff no duty to preserve the specimens. The trial court granted the motions for summary judgment.

On appeal, plaintiff argues that the trial court erred in granting summary judgment because (1) the defendants had a duty to preserve the urine specimens; (2) neither the doctrine of collateral estoppel nor the doctrine of res judicata barred his cause of action; and (3) the City was not immune from liability for destruction of the specimens. We affirm.

BACKGROUND

On February 19, 1973, plaintiff became a Chicago police officer. Based on allegations of drug abuse, the Department ordered plaintiff to provide a urine specimen for drug testing on July 19, 1991. Consistent with Department rules, in July of 1991, plaintiff provided two urine specimens which were placed in separate bottles, A and B. Plaintiff was not able to provide enough urine to fill both bottles, so after filling bottle A, plaintiff drank some water and waited 35 minutes before providing the second sample, bottle B. Pursuant to a contract between SBCL and the City of Chicago, the Department sent bottle A to SBCL for drug testing. Bottle B remained with the Department for testing by a laboratory of plaintiff's choice, if sample A tested positive. SBCL performed two tests on bottle A. Both tests indicated that plaintiff had used cocaine within three days of the date of the urine specimen. A few months later, in September 1991, plaintiff requested that the Department send bottle B to SBCL for testing. This specimen also tested positive for cocaine. The bottle B urine specimen, however, contained a lower level of cocaine metabolites than the bottle A specimen. Although the contract between the City of Chicago and SBCL required SBCL to maintain all positive specimens for three years, SBCL destroyed both specimens in February 1994.

On September 3, 1992, the Department charged plaintiff with violating three Department rules based on the positive drug tests. On March 11, 1993, the Board dismissed the charges against plaintiff because the Department failed to advise plaintiff of his right to counsel before he submitted to the drug testing. The Department appealed this decision to the circuit court. While the appeal was pending, the supreme court held that police officers did not have a statutory right to be advised of a right to counsel before submitting to a drug test. Corgiat v. Police Board of the City of Chicago, 155 Ill. 2d 384, 391 (1993). On the basis of Corgiat, the circuit court vacated the Board's dismissal in 1993 and remanded the matter for a hearing on the superintendent's charges.

On March 2, 1994, Bagnola requested the production of both bottles from the Department. The Department responded that plaintiff would need to get those specimens directly from SBCL. Plaintiff was repeatedly advised that he should request the specimens from SBCL. Plaintiff's counsel informed the hearing officer that he first subpoenaed the records from the testing and the specimens in 1992. The hearing officer told plaintiff's counsel that only the circuit court could enforce the subpoena and order SBCL to turnover any additional materials. The record reflects that plaintiff's original production request and subpoena in 1992 only requested documents from SBCL. Neither that production request nor that subpoena requested production of the actual specimens from SBCL.

On October 26, 1994, plaintiff sent a notice of records deposition and subpoena to SBCL and requested the two specimens. SBCL provided both the plaintiff and the City the litigation packages for both the A and B specimens. SBCL notified plaintiff that both urine specimens A and B had been destroyed in February 1994. SBCL also reported that it did not have the procedural manuals for these tests because it routinely destroys these manuals one year after the test. Destruction of the urine specimens was contrary to the terms of the contract between SBCL and the City which required SBCL to keep all positive specimens for at least three years.

At the administrative hearing, the Department relied on the positive drug tests to prove that plaintiff violated Department rules. At the outset of the hearing on May 25, 1995, the plaintiff filed a lengthy motion in limine and to dismiss the charges. In that motion, plaintiff argued that the City and/or SBCL willfully and intentionally destroyed the A and B bottle specimens and that SBCL was the City's agent. The extensive evidence from the administrative hearing which took place over several days in 1995 is summarized in our previous decision and will not be repeated here except where necessary. See Rodriguez, 297 Ill. App. 3d 906.

We note that during the administrative hearing, plaintiff admitted to having a problem with cocaine in 1988 and an alcohol problem in 1991 for which he sought treatment. Plaintiff denied any drug use in July 1991. He testified that the positive drug test results were a mistake or possibly that his wife put cocaine in his food and he unknowingly ingested it. He explained that he was going through a "very rocky and ugly marriage breakup" and his wife did not want him to have custody of their child. During the administrative hearing, plaintiff argued that the City and SBCL, as its agent, had willfully and intentionally destroyed the A and B urine specimens which prevented him from analyzing the specimens and preparing an effective defense in the administrative proceeding.

Plaintiff also called as a witness Dr. Michael Evans, a toxicologist. Dr. Evans testified that the difference in cocaine metabolites between the two specimens indicated error in the testing; however, he could not demonstrate any error because both specimens had been destroyed. He testified that the initial results were erroneous due to the "nine-fold difference of cocaine metabolite between the two specimen bottles." Dr. Evans indicated that the tests were worthless because the manuals explaining the testing process had been destroyed by SBCL. In rebuttal, the Department called M.P. George, a director of forensic toxicology at the SBCL lab. M.P. George testified that the procedural manuals were not needed to evaluate the validity of the tests. He indicated that the differences in the level of cocaine metabolites could be explained by differences in the concentration of the two urine specimens which were taken 35 minutes apart and by the time delay in obtaining and testing bottle B.

On November 27, 1995, the Board found plaintiff guilty of the charges related to the positive drug tests and ordered him discharged. Specifically, the Board found that SBCL "inadvertently" destroyed the urine samples, that the "Superintendent cannot be faulted for SBCL's destruction of the evidence," and that plaintiff "had a full opportunity to test the B bottle and did so, producing a positive finding for the cocaine metabolites." The Board also found that SBCL's inadvertent destruction of the urine samples did not warrant dismissal of the charges. The Board found that plaintiff's constitutional rights were not violated in any way. The Board concluded that the presence of the cocaine metabolite was conclusive evidence of plaintiff's illegal possession of cocaine. Plaintiff filed a complaint for administrative review with the circuit court. The complaint sought reversal of the Board's decision. At the circuit court hearing on December 3, 1996, the court heard argument regarding the destruction of the A and B urine specimens. The circuit court affirmed the Board's decision and findings.

Plaintiff then appealed to this court. Rodriguez, 297 Ill. App. 3d 906. Plaintiff argued, in part, that the Board's decision was against the manifest weight of the evidence and that plaintiff's constitutional rights were violated because SBCL destroyed the A and B urine specimens. Rejecting plaintiff's claim that the Board's decision was against the manifest weight of the evidence, this court found that the case represented "a battle of the experts" and refused to disturb the credibility findings of the Board. Rodriguez, 297 Ill. App. 3d at 916-17. This court also concluded that the destruction of the urine specimens did not violate plaintiff's due process rights. In reaching this conclusion, this court noted the lack of any evidence that the specimens were destroyed intentionally or tampered with, that the Board found that the specimens were destroyed inadvertently, that plaintiff had an opportunity to test independently the urine specimen from bottle B and chose to send it to SBCL and that plaintiff "had ample opportunity to subpoena Sample A before it was destroyed." Rodriguez, 297 Ill. App. 3d at 917-18. The Board's decision to discharge plaintiff was affirmed. Rodriguez, 297 Ill. App. 3d at 922.

Plaintiff alleged in his separate lawsuit for spoliation of evidence which was filed in the Law Division in March of 1995 that both the City and SBCL had a duty to preserve the specimens and breached that duty in destroying them. Plaintiff alleged as a result of this destruction, he could not have the urine specimens independently analyzed and could not present an effective defense to the Department's charges. Defendants moved for summary judgment. In its motion, the City argued that it had no duty to preserve the specimens, that plaintiff's cause of action was barred by res judicata and collateral estoppel, and that the City was immune from liability. SBCL similarly argued that plaintiff's cause of action was barred ...


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