Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2009

Lorie Garlick v. Quest Diagnostics In
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1079




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                                                                 NOT PRECEDENTIAL


                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 08-1079
                                     _____________

       LORIE GARLICK; TINA L. SCHROEDER; JOY SCOTT; BRYAN E.
   BLEDSOE; WENDY R. BRODY; KELLY BUCKLEY; G. GEOFFREY CRAIG;
     GAY CUMMINS; MARSHA A. DIENELT; BETH GIBSON; MICHELLE J.
    GILLUM; ROBIN M. GREEN; KRISTIE SMITH; JILL WELTON; RICHARD
                           P. PACZYNSKI,
                                       Appellants

                                             v.

           QUEST DIAGNOSTICS INC; NATIONAL MEDICAL SERVICES INC,
                             doing business as NMS Labs;
           LABCORP, a Subsidiary of Laboratory Corporation of America Holdings;
                        DTS, also known as Drug Test Systems;
                  FIRSTLAB, a Subsidiary of FHC Health Systems Inc;
                               COMPASS VISION INC;
             FIRST ADVANTAGE, Division of The First America Corporation;
                            JOHN DOE CORPORATIONS


                      On Appeal From the United States District Court
                                 for the District of New Jersey
                                       (No. 06-cv-06244)
                      District Judge: Honorable Dennis M. Cavanaugh

                                Argued November 18, 2008

    Before: BARRY and CHAGARES, Circuit Judges, and COHILL,* District Judge


       *
        Honorable Maurice Cohill, Jr., Senior District Judge for the United States District
Court for the Western District of Pennsylvania, sitting by designation.
                               (Filed: February 6, 2009)


Norman Perlberger (argued)
Pomerantz & Perlberger
21 S. 12th St., Room 700
Philadelphia, PA 19107
Counsel for Appellants

John C. Farrell
John J. Hare
Eric A. Weiss
Jonathan D. Weiss
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut St.
Philadelphia, PA 19103
Counsel for Appellee National Medical Services Inc.

Lauri A. Mazzuchetti
Kelley, Drye & Warren
200 Kimball Dr.
Parsippany, NJ 07054

Robert I. Steiner
Kelley, Drye & Warren
101 Park Ave.
New York, NY 10178
Counsel for Appellee LabCorp

Peter J. Hoffman
Eckert, Seamans, Cherin & Mellott
50 S. 16th St.
2 Liberty Pl., 22d Fl.
Philadelphia, PA 19102


Roman Lifson
Christian & Barton
909 E. Main St.

                                          2
1200 Mutual Bldg.
Richmond, VA 23219

Todd L. Schleifstein (argued)
Greenberg Traurig
200 Park Ave.
Florham Park, NJ 07932
Counsel for Appellee FirstLab

Peter J. Gallagher
Todd L. Schleifstein (argued)
Philip R. Sellinger
Greenberg Traurig
200 Park Ave.
Florham Park, NJ 07932
Counsel for Appellee First Advantage

D. Faye Caldwell (argued)
Caldwell & Clinton
1001 Fannin St., Ste. 1000
Houston, TX 77002

Austin A. Evans
Joseph E. O’Neil
Lavin, O’Neil, Ricci, Cedrone & DiSipio
190 N. Independence Mall W., Ste. 500
Philadelphia, PA 19106
Counsel for Appellee Quest Diagnostics Inc.

Alan C. Milstein
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddonfield Rd., Ste. 311
Pennsauken, NJ 08109

Todd L. Schleifstein (argued)
Greenberg Traurig
200 Park Ave.
Florham Park, NJ 07932
Counsel for Appellee Compass Vision Inc.



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                                      _____________

                                 OPINION OF THE COURT
                                     _____________


CHAGARES, Circuit Judge.

       Lorie Garlick and her co-appellants appeal from the District Court’s order

dismissing their complaint with prejudice for failure to state a claim upon which relief can

be granted. We will vacate and remand.

                                              I.

       Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts.

       Garlick is a healthcare worker with a history of alcohol abuse.1 As part of her

rehabilitation, she voluntarily submitted to testing designed to convince her medical

licensing board that she no longer drinks alcoholic beverages. The board used a test that

detects the presence of a substance called ethylglucuronide (EtG) — produced when

alcohol is consumed — in a subject’s urine. The presence of more than a certain amount

of EtG yields a “positive” result; otherwise the result is “negative” for alcohol

consumption. One of Garlick’s tests came back positive, and the board disciplined her.

Garlick, however, claims she has been sober throughout her rehabilitation



       1
        All of the plaintiffs are similarly situated in the respects discussed in this and the
preceding paragraph. For simplicity, then, the remainder of this opinion will refer only to
Garlick, rather than to “Garlick and her co-appellants” or some equivalent thereof.

                                              4
       Garlick sued the laboratories that developed the test and the third-party

administrators (TPAs) that collected the specimens and reviewed the results in order to

weed-out false positives. She does not argue that the test samples were mishandled or

that the test does not accurately detect the presence of EtG. Rather, she argues that the

test, properly performed, has an unreasonably high likelihood of generating a false

positive for alcohol consumption

       Quest Diagnostics Inc. (Quest), one of the laboratories, and its co-appellees moved

to dismiss on the ground that Garlick failed to state a claim upon which relief may be

granted. The District Court granted the motion, and Garlick filed this appeal.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

       The courts of appeals have broad authority to manage cases in ways that maximize

efficiency and fairly vindicate the interests of the parties. Along these lines, 28 U.S.C. §

2106 provides:

              The Supreme Court or any other court of appellate jurisdiction may affirm,
       modify, vacate, set aside or reverse any judgment, decree, or order of a court
       lawfully brought before it for review, and may remand the cause and direct the
       entry of such appropriate judgment, decree, or order, or require such further
       proceedings to be had as may be just under the circumstances.

Particularly relevant here, the courts of appeals have the inherent authority sua sponte to

order a district court to grant a plaintiff leave to amend her complaint where portions of



                                              5
the pleading are less than pellucid in ways that frustrate application of the relevant law.

See Mittleman v. United States, 

, 417 (D.C. Cir. 1997) (sua sponte

remanding case to district court with instructions to allow plaintiff to “refine” negligence

and emotional distress claims).

       This case calls for the exercise of that authority. The structure of the complaint is

inherently complex. Garlick has sued two groups of defendants and makes distinct yet

inter-related negligence claims against each. And the substance of those claims may raise

issues of first impression in many of the relevant state-law tort regimes. These features of

the case made it especially important for Garlick to have pleaded her right to relief with

precision. Yet, the language of the complaint, taken together with the arguments made to

this Court (in the briefs and at oral argument), suggest that she instead took a somewhat

scattershot approach.2

       For example, Garlick claims that the EtG cutoff — separating positive from

negative results — was set arbitrarily. Thus, determining who set those baselines may be

critical. The complaint alleges that “Defendants” set the baselines. Appendix 58 (Compl.

¶ 93(b)). Garlick’s opening brief explains that this allegation refers to all defendants

acting in concert. Appellants’ Br. at 18. Yet, at oral argument, Garlick stated repeatedly



       2
         We are not holding Garlick to any pleading standard other than that provided in
Federal Rule of Civil Procedure 8(a). We merely note that, because Garlick’s claims
appear to be somewhat novel and nuanced, she may, in order to meet that standard, have
to include greater explanatory detail than if she were alleging a mine-run slip-and-fall
injury or some other garden-variety tort based upon a very simple fact pattern.

                                              6
that the laboratories alone — not the TPAs — set the cutoff. Garlick effectively concedes

that this lack of precision permeates her pleading. Her opening appellate brief is littered

with footnotes tacitly admitting that her original complaint is murky in multiple respects

by repeatedly offering to amend her complaint in order to clarify her allegations. See

Appellants’ Br. at 6 n.2 (“Plaintiffs are able to amend, if it is deemed necessary by this

Court, to clarify this allegation in the instant complaint.”), 8 nn.4 (“Plaintiffs are able to

amend, if it is deemed necessary by this Court, to make this allegation in the instant

complaint.”) & 5 (“Plaintiffs are able to amend, if it is deemed necessary by this Court, to

clarify these allegations in the instant complaint.”), 11 n.6, 21 nn.8 (“If this allegation is

not clearly stated in the complaint it can be made by amendment.”) & 10, 24 n.11.

       The sprawling nature of the case before the District Court further muddied the

waters. Garlick’s complaint included a hodgepodge of seven theories of recovery:

negligent misrepresentation, fraudulent misrepresentation, products liability, breach of

warranty, negligence, breach of fiduciary duty, and violation of the New Jersey Consumer

Fraud Act. Garlick’s brief represents that five of these seven counts were withdrawn and

that she is not appealing the District Court’s ruling regarding a sixth count. Appellants’

Br. at 3 n.1. Garlick is now pursuing only her negligence claim. We believe that the

District Court should have the first opportunity to resolve this narrower controversy.

       To sum up, Garlick’s claims are “not clear enough for us to apply the pertinent

[law],” in this case various bodies of state tort law. 

. We will



                                               7
exercise our discretionary authority to give Garlick the opportunity to “refine [them] into

clear enough terms” such that the District Court may do so in the first instance. 

                                            III.

       For the reasons articulated above, we will vacate the District Court’s judgment and

remand the matter to the District Court with instructions to allow Garlick a reasonable

amount of time to amend her complaint.




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