The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Charles Palonis brought suit against Jewel Food
Stores, Inc., Local No. 710 of the International Brotherhood of
Teamsters, and Concentra Medical Centers, alleging breach of
contract against Jewel, breach of the duty of fair representation
against Local 710, and negligence against Concentra. The case is
before the Court on Concentra's motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons stated
below, the Court denies Concentra's motion.
We take the facts from Palonis' complaint. In 1986, Jewel hired
Palonis to work as a truck driver. Pursuant to a collective
bargaining agreement with Jewel, Local 710 is the exclusive
representative of the company's truck drivers. According to the complaint, on August 4, 2004, a Jewel
supervisor sent Palonis to Concentra for a drug test. Palonis
alleges that Concentra's lab technician breached laboratory
protocol by failing to seal in Palonis's presence the bottle
containing his urine sample and by failing to seal the bag in
which the sample was to be maintained. After the drug test,
Palonis registered an objection with his Jewel supervisor.
Palonis alleges that a physician employed by Concentra contacted
him on August 9, 2004 and informed him that the sample may have
been adulterated. The following day, Palonis's supervisor
directed him to return to Concentra for a second test.
Palonis proceeded to Concentra for a second test as directed.
Once again, he alleges, problems arose in the collection of the
urine sample. Palonis contends the technician breached the chain
of custody by improperly opening the sample vials and placing
them near other open vials. The technician denied Palonis'
request to disregard the test and to administer a new test.
Concentra later reported to Jewel that Palonis had tested
positive for cocaine. Palonis contends the test result or test
report was false. When he returned to work, he registered an
objection regarding the second drug test. Palonis then had his
own treating physician administer a drug test, which he says came
back negative for narcotics.
Jewel ultimately terminated Palonis based on the positive test
result reported by Concentra. Palonis filed a grievance, which
was denied. This action followed. Palonis has sued Jewel for
improper termination in violation of the collective bargaining
agreement, Local 710 for improperly handling his grievance
against Jewel, and Concentra for negligence.
Palonis has sued Concentra for negligence in collecting,
handling, and testing his urine samples and in reporting the results to Jewel. Compl. ¶¶ 34-35.
Concentra has moved to dismiss based upon 735 ILCS 5/2-622, which
requires that in any case in which the plaintiff seeks damages
for injuries or death "by reason of medical, hospital, or other
healing art malpractice," the plaintiff's attorney must, among
other things, attach to the complaint a report of a qualified
health professional knowledgeable in the relevant issues who has
determined that there is a reasonable and meritorious cause for
filing the case.
Palonis argues that section 2-622 is a state procedural rule
that should not be applied in federal court in a non-diversity
case. We need not address that question, for even if section
2-622 applies in federal court, it does not bar Palonis's claim.
Palonis makes a claim of ordinary negligence against Concentra.
A drug-testing laboratory like Concentra owes a duty of
reasonable care to persons whose specimens it tests for employers
or prospective employers. See Stinson v. Physicians Immediate
Care, Ltd., 269 Ill. App. 3d 659, 665, 646 N.E.2d 930, 934
Palonis's claim against Concentra does not involve "healing art
malpractice." The statutory phrase "healing art" has been defined
by Illinois courts as covering the "`branch of learning dealing
with the restoration of physical or mental health.'" Milos v.
Hall, 325 Ill. App. 3d 180, 183, 757 N.E.2d 654, 657 (2001)
(quoting Lyon v. Hasbro Inds., Inc., 156 Ill. App. 3d 649, 653,
509 N.E.2d 702, 706 (1987)). Concentra's alleged negligence does
not arise from application of a "healing art"; rather it acted in
the context of an employer-mandated drug test given for purposes
of determining Palonis' eligibility to continue working, not
(from what we can determine) for the purpose of diagnosing or
treating him. There is no contention that Concentra was negligent
"while attempting to restore [Palonis] to normal mental or
physical condition." Milos, 325 Ill. App. 3d at 184, 757 N.E.2d at 657
(finding that section 2-622 did not apply to claim arising from
pathologist's inaccurate preparation of autopsy report).
In construing an Illinois statute like section 2-622, a court
may consider "the reason and necessity for the legislation, the
evils it was designed to remedy, and the objects and purposes the
[legislature] sought to achieve." Eads v. Heritage Enterprises,
Inc., 204 Ill. 2d 92, 103, 787 N.E.2d 771, 776 (2003). Section
2-622 was adopted in 1985 as part of an effort to ameliorate a
perceived crisis in medical malpractice litigation; the
legislature hoped to reduce the number of medical malpractice
suits that were filed. Id.; Miller v. Rosenberg,
196 Ill. 2d 50, 60-61, 749 N.E.2d 946, 953 (2001). It is relatively
self-evident that Palonis's claim against Concentra has no
relationship whatsoever with the perceived ill that the Illinois
legislature had in mind when it enacted section 2-622.
Though the Court has found no Illinois cases dealing with the
application of section 2-622 to a claim of negligence in
administering a drug test for employment purposes, the court in
Williams v. Nat'l RR Passenger Corp., 16 F. Supp. 2d 178 (D.
Conn. 1998), considered the application of a similar Connecticut
statute to a claim by an Amtrak employee similar to the claim
Palonis has made. The Connecticut statute required the plaintiff
to submit a certificate of good faith in any action for personal
injury claimed to have resulted from "the negligence of a health
care provider." The statute's purpose, like that of section
2-622, was to deter the filing of baseless medical malpractice
claims. See id. at 181. The court held that the statute did not
apply to the plaintiff's claim. Central to its ruling was the
fact that medical malpractice cannot exist in the absence of the
plaintiff's consensual consultation with a health care
professional for medical treatment and/or advice. Id. By
contrast, the plaintiff in Williams was compelled to provide a urine sample for purposes not of medical treatment, but for drug
testing for the benefit of the employer. Id. The same is true
in the present case.
For these reasons, the Court concludes that section 2-622 does
not apply to Palonis's ...