              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                       _____________________

                              NO. 92-2361
                         _____________________

          ROBERT E. WILLIS,
                                           Plaintiff-Appellant,

                versus

          ROCHE BIOMEDICAL LABORATORIES, INC.,
          E.I. DU PONT DE NEMOURS & COMPANY,
          GEORGE M. ALLISON, M.D., BILL PACE,
          BILL BRINGHURST, MARTHA KIVLOVITZ,
                                        Defendants,

          ROCHE BIOMEDICAL LABORATORIES, INC.,
                                         Defendant-Appellee.
___________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
___________________________________________________________________
                          August 2, 1995

Before KING, JOLLY and PARKER1, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:


     The original panel opinion in this cause, Willis v. Roche

Biomedical Laboratories, Inc., 21 F.3d 1368 (5th Cir. 1994), is

withdrawn and this opinion is substituted in its stead.

    Robert E. Willis ("Willis") filed this action in Texas state

court on July 31, 1991, asserting negligence and defamation claims

arising out of a test of Willis's urine that resulted in a false

positive for methamphetamines. Willis brought action against Roche

Biomedical   Laboratories,   Inc.   ("Roche"),   the   laboratory   that

performed the urinalysis; E.I. du Pont de Nemours & Company ("Du

     1
        Judge Parker was the Chief Judge of the Eastern District
of Texas, sitting by designation at the time this case was
submitted.
Pont"), his     employer;   and   four   Du   Pont   employees,   George   M.

Allison, M.D., Bill Pace, Bill Bringhurst and Martha Kivlovitz.

(The Du Pont company and its employees are referred to collectively

as "the Du Pont defendants" or "Du Pont".)

    On August 22, 1991, the Du Pont defendants, joined by Roche,

removed the action to federal court on the ground that Willis's

claim arose under the Labor Management Relations Act ("LMRA"), 29

U.S.C. § 185.    The district court subsequently granted the Du Pont

defendants' motion to dismiss because Willis had failed to exhaust

his contractual remedies.     Although Willis appealed from the order

of dismissal, that appeal has been previously dismissed and is not

now before this Court.

   On June 29, 1992, the district court granted Roche's motion for

summary judgment and this appeal followed.

                                  I. FACTS

      The district court found that the following facts were

established by the summary judgment evidence.               Neither party

disputes that this portion of the district court's opinion is

correct.

   Plaintiff-Appellant Willis has been employed by Du Pont at its

LaPorte, Texas chemical plant since March 26, 1979 as a utility

helper.    At all times relevant to this lawsuit, his employment was

governed by a collective bargaining agreement, which included a

substance abuse policy covering La Port plant employees.            In July

1990, Du Pont, in alliance with the Union, instituted a random drug

testing policy.


                                     2
    Du Pont contracted with Roche to conduct the screening and

testing of urine samples provided by Du Pont in accordance with

strict protocol procedures in the contract.

    On August 2, 1990, Du Pont ordered that Willis participate in

a random drug test, in accordance with its substance abuse policy.

The test was performed by Roche and a report was issued to Du Pont,

pursuant to a consent form signed by Willis.   The report indicated

that Willis had tested positive for methamphetamine use.     Willis

remained employed at Du Pont and continued to receive his regular

salary after Du Pont received Roche's report. Willis was placed on

restricted work duty and was sent to a physician.   Willis was also

required to attend counseling sessions and to submit to follow up

testing.

   On November 2, 1990, Roche informed Du Pont that Willis's drug

test had registered a "false positive." The false positive was the

result of the test confusing the presence of over the counter cold

medication with the presence of illegal methamphetamine in Willis's

urine.     Upon learning of the mistake, Du Pont compensated Willis

for lost time and for medical expenses.

   Willis brought suit for negligence, gross negligence, libel and

slander, contending that his damages included various aspects of

mental suffering and the loss of his good name and reputation.   He

also claimed monetary damages, but acknowledged that Du Pont had

made monetary amends with regard to the payment of these sums in

the form of repayment for lost work time and reimbursement for

medical expenses.


                                  3
                               II. GOVERNING LAW

      In its order denying Willis's motion to remand the case to

state court, the district court found that Willis's state law

claims were preempted by § 185 of the LMRA.              If that is correct,

the questions before us are governed by substantive federal law.

Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13

L.Ed.2d 580 (1965) (substantive federal law applies to suits on

collective bargaining agreements covered by this section [§ 185].)

However,   the    court     applied   state   law   to   the   claims   in    its

memorandum opinion granting Roche summary judgment.

   We hold that Willis's claims against Roche are not preempted by

the LMRA, because they do not require an interpretation of the

collective    bargaining      agreement    for   resolution.     Rather,      the

district court had pendant jurisdiction over these state claims,

and it appropriately applied Texas law.

                            III. STANDARD OF REVIEW

   Willis challenges the district court's interpretation of Texas

law and its determination that no genuine issue of material fact

existed in the summary judgment record.           We must review de novo the

district court's determination of state law.             Salve Regina College

v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 1225 (1991) ("The

obligation of responsible appellate review and the principle of a

cooperative      judicial     federalism   underlying     Erie   [R.    Co.    v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)] require

that courts of appeals review the state-law determination of

district courts de novo.")


                                       4
      The standard of review at the appellate level of a district

court's grant of summary judgment requires the same analysis as

employed by the trial court.         FED. R. CIV. P. 56(c) provides that

summary judgment "shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law."        The Supreme Court has held that

Rule 56 mandates the entry of summary judgment, after adequate time

for discovery and upon motion, against a party who fails to make a

showing sufficient to establish an essential element of that

party's case, and on which that party will bear the burden of proof

at trial.     Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). The party moving for summary judgment

must initially demonstrate the absence of a genuine issue of

material fact.       Id., 477 U.S at 323, 106 S.Ct. at 2553.           If the

movant    meets    this   burden,   the   nonmovant   must   go   beyond   the

pleadings and designate specific facts showing that there is a

genuine issue for trial.       Id. 477 U.S. at 325, 106 S.Ct. at 2553-

54.   "This burden is not satisfied with some metaphysical doubt as

to    the    material      facts,    by    conclusory    allegations,        by

unsubstantiated assertions, or by only a scintilla of evidence."

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(internal quotations and citations omitted).            However, when the

parties     have   submitted   evidence   of   contradictory      facts,   "the

evidence of the non-movant is to be believed, and all justifiable


                                      5
inferences are to be drawn in his favor."                Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d

202 (1986).

     This standard provides that the mere existence of some factual

dispute will not defeat a motion for summary judgment; Rule 56

requires that the fact dispute be genuine and material.            First, the

substantive law will identify which facts are material.                      Only

disputes over facts that might affect the outcome of the suit under

the governing law will preclude summary judgment.            Id. 477 U.S. at

248, 106 S.Ct. at 2510.      Second, a dispute about a material fact is

genuine if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party. Id.



                               IV. ANALYSIS

     We now turn to the question of whether the district court

erred in granting Roche's motion for summary judgment in this

particular case.

A.   WILLIS'S NEGLIGENCE CLAIM

     To recover under a negligence cause of action, Willis must

establish that Roche owed a legal duty to him, and then, that Roche

breached the duty and that Willis suffered damages proximately

caused by the breach.       See, e.g., Otis Engineering Corp. v. Clark,

668 S.W.2d 307, 312 (Tex. 1983).            The district court held that

Roche   owed   no   legal   duty   to   Willis   under    Texas   law   to   use

reasonable care in its administration of the drug testing of

Willis's urine sample. The district court found that Texas law was


                                        6
not sufficiently developed on the issue of a laboratory's liability

for negligent drug testing for a federal court to make an "Erie

prediction", and thus the court was forced to rely on the law of

negligence as it applies to physicians employed as independent

contractors.   With the benefit of a recent pronouncement from the

Supreme Court of Texas, we now make the necessary Erie prediction.

Smithkline Beecham Corp. v. Doe, No. D-4131, slip op. (Tex. July

21, 1995).

     In Smithkline, an employer rescinded a job offer because a

pre-employment drug test revealed the presence of opiates in the

plaintiff's urine.   The plaintiff contended that the test result

was caused by consumption of poppy seed muffins and not by use of

any controlled substances. The employer informed Doe that her only

recourse was to reapply for employment with the company in six

months.   She did and the company declined her re-application.

     Doe sued, among others, the laboratory which conducted the

testing, claiming that the laboratory owed her a duty to warn that

poppy seeds could cause a positive test result.    Reversing a court

of appeals decision, the Supreme Court of Texas held that this duty

did not exist.    Smithkline, slip op. at 2.   The court recognized

that Smithkline Beecham was an independent laboratory hired by the

employer to conduct drug screening tests.         The court did not

consider the duties Smithkline Beecham owed the employer or the

duties the employer may have owed Doe.   Rather, the court focussed

"exclusively on the relationship between the laboratory and the

person tested."   Smithkline, slip op. at 8.


                                 7
     The Texas high court noted that some jurisdictions had held

that a laboratory owes a duty to persons tested to perform its

services with reasonable care.       Although distinguishing those

decisions from the failure to warn claims before it, the court

pointed out that whether an independent laboratory owes a duty of

reasonable care is a question on which "[n]o court of last resort

has spoken."   Smithkline, slip op. at 9.   In addition, the court

seemed to question the soundness of the decisions finding such a

duty.2   Reviewing decisions in a related context, the Texas court

also noted that "the only court of last resort in any American

jurisdiction to clearly consider the issue has held that no tort

duty to use reasonable care should be imposed on polygraph test

operators."    Smithkline, slip op. at 10 (citing Hall v. United

Parcel Serv. of Am., 555 N.E.2d 273, 276-78 (N.Y. 1990)).

     Although the Supreme Court of Texas emphasized in Smithkline

that it was not considering whether a drug testing laboratory has

a duty to use reasonable care in performing tests and reporting

results, we must consider what the court did say in determining

what Texas law is.    Recognizing the risks inherent in making an

Erie "guess", we find that under current Texas law, Roche owed

Willis no duty of reasonable care in testing his urine for drugs.



     2
      . In particular, the court questioned this Court's earlier
opinion in the present case. Smithkline, slip op. at 9-10. We
do not agree that our earlier reliance on the Texas Court of
Appeals decision in Smithkline was unfounded. However, the Texas
Supreme Court's unfavorable references necessarily affect our
Erie analysis since we must predict what that court would have
done if presented with the same dispute.

                                 8
B.   WILLIS'S DEFAMATION CLAIM

     Second, Willis seeks damages arising from the publication of

the false positive test results. Roche responds that Willis signed

a consent form granting permission to release the results of such

tests to the company.    The pertinent consent form language reads,

"I furthermore give (outside laboratory) my permission to release

the results of such tests to the company."      (Record Vol.1., p.

252).     However, we need not address whether this release was

effective because we agree with the district court's reasoning that

in any event Roche's communication was qualifiedly privileged.

        The district court assumed arguendo, without holding, that

there was no valid consent and that the report was defamatory, but

found that Roche's publication was qualifiedly privileged, citing

Boze v. Branstetter, 912 F.2d 801, 806 (5th Cir. 1990).          The

opinion reasons:

              The privilege advances "the need for free
      communication of information to protect business and
      personal interests." Gaines v. CUNA Mut. Ins. Soc'y, 681
      F.2d 982, 986 (5th Cir. 1982). In order for the moving
      party to prevail on a summary judgment asserting this
      privilege, however, an absence of malice must be shown.
      Houston v. Grocers Supply Co., Inc., 625 S.W.2d at 801.
            The only manifestation of malice established by
      plaintiff stems from the very fact that the test results
      were false. The law is clear, "'[m]alice is not implied
      or presumed from the mere fact of the publication, nor
      may it be inferred alone from the character or vehemence
      of the language used, nor found from the falsity of the
      statement alone.'" Houston Belt & Terminal Ry. Co. v.
      Wherry, 548 S.W.2d at 754 (citations omitted). Plaintiff
      has failed to demonstrate express malice or implied
      malice. (Record Vol. 1., p. 424)

     Willis does not directly challenge this holding, but it is not

entirely clear that he has abandoned his defamation claim.        We


                                  9
nonetheless agree with the reasoning and conclusion reached by the

district court and hold that it was correct in granting Roche

summary judgment on the defamation claim.



                          V. CONCLUSION

    The district court's order granting summary judgment in favor

of Roche is AFFIRMED.




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