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February 27, 2004.

DAVID HUGHES, Plaintiff,
CITY OF CHICAGO, an Illinois municipal corporation; QUEST DIAGNOSTICS, INC., a New Jersey corporation; and DR. HUGH RUSSELL, in his individual capacity and official capacity as Medical Review Officer of the Chicago Fire Department Defendants

The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District


Plaintiff David Hughes' complaint against Defendants City of Chicago ("City"), Quest Diagnostics, Inc. ("Quest"), and Dr. Hugh Russell raises various claims relating to a positive drug test that ultimately led to Hughes' termination from the Chicago Fire Department, For the reasons set forth below, we dismiss the case in its entirety.*fn1


  In 2001, the Chicago Fire Department hired Plaintiff David Hughes as a candidate paramedic. Hughes' employment contract required him to submit to random drug testing and provided that he could be terminated if any of his drug tests yielded a positive result. Page 2

  Defendant Quest Diagnostics is a corporation that contracts with the Chicago Fire Department to perform laboratory analysis of drug test samples submitted by fire department employees. In September 2001, Hughes provided a urine sample which was submitted to Quest for testing. Quest conducted two tests on the sample, both of which reflected that Hughes' morphine opiate level was 481 ng/ml, slightly above the 300 ng/ml cut off level set by the Chicago Fire Department. Defendant Dr. Russell, the Medical Review Officer for the Chicago Fire Department, reviewed and confirmed the results of Quest's test report. As a result of the positive tests, Hughes was fired from his candidate paramedic position on October 9, 2001. Hughes responded to his termination with the present action.

  The central focus of Hughes' eleven count complaint is the cut off level that the defendants used in testing for the presence of opiates in Hughes' sample. The parties agree that the actual testing of the sample was done with scientific precision; there are no questions surrounding chain of custody, the types of procedures used to perform the tests, or the accuracy of the 481 ng/ml result obtained. Rather, Hughes argues that the defendants' use of the 300 ng/ml cut off level for opiates was unacceptably low and contrary to scientific standards.

  It is widely accepted that drug tests can yield false positive results for low levels of opiates and codeine if the person being tested has recently ingested poppy seeds or some (perfectly legal) prescription drugs. See David W. Lockhard, Protecting Medical Laboratories From Tort Liability for Drug Tenting, 17 J. Legal Med. 427 (1996). For that reason, the federal government requires its employees to be tested using a 2,000 ng/ml cut off level. 49 C.F.R. § 40.87. The question presented in this case is whether the City of Chicago, the doctor who reviewed the test results, and the corporation which performed the testing can be held liable for their decision to treat Hughes' 481 ng/ml result as positive for opiates rather than adhering to the much higher cut off levels set by the Page 3 federal government and commonly used by other employers. Hughes also claims that the parties owed him a duty to: 1) warn him that eating certain foods could produce a false positive result; and 2) conduct further, more exacting tests that would have revealed whether his positive test was actually the result of illicit opiates.


  Subject matter jurisdiction was originally premised on Hughes' federal claims, including his allegations that the City had violated his Fourth Amendment right to be free from search and seizure (Count I), his Fourteenth Amendment right to due process under the law (Count II), and his Fourteenth Amendment right to equal protection under the law (Count III).*fn2 Hughes' complaint also raised two Illinois state law claims against the defendants, including negligence and tortious interference with an employment contract.*fn3 Jurisdiction over the state law claims was premised on 238 U.S.C. § 1367, which allows a federal court to assert supplemental jurisdiction over state law claims "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."

  On July 2, 2003, we dismissed all three of Hughes' federal causes of action as well as his state law tortious interference claim against Dr. Russell. However, we allowed Hughes to proceed with his common law negligence claims against the City, Dr. Russell, and Quest. Having dismissed Page 4 all of Hughes' federal counts, the issue now before us is whether we should continue to assert supplemental jurisdiction over the state law matters. Although district courts have considerable discretion in this context, the general presumption in the Seventh Circuit is that a court should dismiss without prejudice supplemental state law claims once all federal claims have been eliminated prior to trial. See Grace v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."). There are, however, several factors that a court should consider before taking such a step, including "considerations of judicial economy, convenience and fairness to litigants" as well as the novelty or complexity of the issues presented by the state law claims. United Mine Workers, 383 U.S. at 726.

  Pursuant to 28 U.S.C. § 1367(c), a federal court may decline supplemental jurisdiction over a claim that "raises a novel or complex issue of state law." See also Bilow v. Much Shelist Freed Denenberg Amenl & Rubenstein, P.C., 277 F.3d 882, 896 (7th Cir. 2001) (upholding a district court's decision to dismiss state law claims where the claims were "complex" and presented "undecided legal issues, best resolved by the Illinois state courts") (quoting district court); see also United Mine Workers, 383 U.S. at 726 ("[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law."). We must therefore consider whether Hughes' remaining negligence claims require a straightforward application of Illinois law or whether they present issues that have not been directly ruled upon by Illinois courts.

  To state a claim for negligence under Illinois law, a plaintiff must establish "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting Page 5 from the breach." DiBenedetto v. Flora Tramp., 605 N.E.2d 571, 573 (Ill. 1992). In this case, the central question is whether each of the individual defendants owed Hughes a duty of care to: 1) follow scientifically accepted standards in setting opiate cut off levels; 2) warn Hughes about the possibility that certain foods could result in a positive test; or 3) conduct more sophisticated tests to confirm the presence of illicit drugs in Hughes'sample. None of these questions have been directly ruled upon by any Illinois court.

  The most closely analogous case is Stinson v. Physicians Immediate Care, Ltd., in which an Illinois Appellate Court held that a testing facility owed a duty of care to perform drug tests in a reasonably competent manner. 646 N.E.2d 930 (Ill.App. Ct. 1995). That case dealt with a situation in which the laboratory had botched the technical analysis of the sample by failing to use "routinely followed precautionary procedures." Id. at 931. Thus, had the testing facility in this case (Quest) mixed up several samples or used unsterile equipment to perform the test, Illinois law indicates that Hughes could be successful in his negligence suit, at least with respect to Quest. However, Hughes does not allege negligence in the actual processing of his sample. Rather, he alleges negligence in the way the sample results (which he admits were technically accurate) were interpreted, in the amount of information given to him before the test, and in the failure to conduct a second type of test. Nor does Hughes allege negligence against the testing facility alone (as was the case in Stinson); he also argues that the City and Dr. Russell owed him a duty of care in interpreting his test results. In essence, Hughes is requesting that this court extend the duty conferred by the Illinois Appellate Court in Stinson to fit the facts of his case.

  Illinois courts have explained that, "[i]n considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant." Page 6 Gouge v. Central Illinois Pub. Serv. Co., 582 N.E.2d 108, 112 (Ill. 1991) (citations omitted). The present case would require us to perform this balancing act with respect to each of the three allegedly negligent actions as performed by each of the three named defendants, attempting to predict the outcome that the Illinois courts would reach. All of those inquiries would be conducted with very little guidance ...

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