         [Cite as Moreno v. ODACS, Inc., 2014-Ohio-5007.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




PETER MORENO,                                   :           APPEAL NO. C-130810
                                                            TRIAL NO. A-1303574
        Plaintiff-Appellee,                     :
                                                               O P I N I O N.
  vs.                                           :

ODACS, INC.,                                    :

      Defendant,                                :

and                                             :

QUEST DIAGNOSTICS INC.,                         :

    Third-Party Fact Witness-                   :
Appellant.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 12, 2014



Droder & Miller Co., LPA, Bradley A. Powell and Zachary D. Bahorik, for Plaintiff-
Appellee,

Perez & Morris, LLC, Robert Nichols, Caldwell Everson PLLC and D. Faye Caldwell,
for Third-Party Fact Witness-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Presiding Judge.

         {¶1}   Third-party fact witness Quest Diagnostics, Inc., (“QDI”) appeals the

trial court’s judgment denying its motion to quash plaintiff-appellee Peter Moreno’s

subpoena seeking the production of his urine sample for DNA testing. Because

federal law preempts the trial court’s order in this case, we reverse the trial court’s

judgment.

         {¶2}   Moreno was employed as a school bus driver by First Student in May

2009. Under the United States Department of Transportation (“DOT”) regulations,

Moreno was subject to random drug testing. In September 2012, Moreno submitted

to a random drug test at defendant ODACS, Inc.’s, facility in Cincinnati. Under DOT

regulations, ODACS collected Moreno’s urine specimen and split it into two

separately sealed tubes. Moreno wrote his initials on each of the sealed tubes. Both

tubes were sent to LabOne, Inc., a laboratory certified by the United States

Department of Health and Human Services (“HHS”). LabOne is a wholly owned

subsidiary of QDI. LabOne reported that Moreno’s urine specimen tested positive

for cocaine. Because of this result, Moreno was placed on administrative unpaid

leave.   At Moreno’s request, LabOne sent the second tube containing Moreno’s

specimen to another HHS-certified laboratory that also reported a positive result for

cocaine. At this time, Moreno’s employer fired him.

         {¶3}   Moreno sued ODACS, alleging that the collection facility was negligent

in collecting, handling, labeling, and/or transferring the specimen. He does not

contest the validity of the positive results from the drug test, but contends that the

specimen collected by ODACS did not contain his urine. Thus, Moreno requested




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                     OHIO FIRST DISTRICT COURT OF APPEALS



QDI to produce Moreno’s urine specimen for DNA testing. QDI refused, informing

Moreno that federal law prohibited QDI from releasing the specimen for DNA testing

absent consent from DOT’s Office of Drug and Alcohol Program Compliance

(“ODAPC”). ODAPC did not consent to QDI’s release of Moreno’s urine specimen.

       {¶4}   Because of QDI’s refusal, Moreno filed a subpoena requesting QDI to

produce his urine sample for identity testing. QDI moved to quash the subpoena.

Following oral arguments on the motion, the trial court denied QDI’s motion to

quash, and instead ordered QDI to produce the urine specimen for DNA testing.

QDI now appeals.

       {¶5}   In its single assignment of error, QDI contends that the trial court

erred in denying QDI’s motion to quash the subpoena. Specifically, QDI argues that

federal law expressly prohibits QDI from producing a urine specimen for identity

testing, and that this federal law preempts the state trial court’s order to produce

Moreno’s urine specimen. For the following reasons, we agree.

       {¶6}   The Federal Omnibus Transportation Employee Testing Act of 1991

(“FOETA”) directed the Secretary of Transportation to promulgate regulations

requiring random drug and alcohol testing for transportation workers in safety-

sensitive positions. See 49 U.S.C. 31306(b)(1)(A); 49 C.F.R. 382.305(a). Therefore,

the Federal Motor Carrier Safety Administration, a DOT agency, issued those

regulations (“the DOT regulations”), which subjected commercial drivers, including

school bus drivers, to random drug tests. See 49 C.F.R. 382.101 et seq. The DOT

regulations determine who is required to participate in the testing program and how

the testing is conducted. 49 C.F.R. 382.105; 49 C.F.R. 40.1. There is no dispute that




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Moreno was subject to random drug testing conducted according to these federal

regulations.

       {¶7}    Under the Supremacy Clause of the United States Constitution,

Congress has the power to preempt state law. Minton v. Honda of Am. Mfg., Inc., 80

Ohio St.3d 62, 68, 684 N.E.2d 648 (1997). Federal preemption of state law can occur

in three circumstances: (1) when Congress expressly preempts state law; (2) where

there is an actual conflict between federal and state law, or (3) “when the scope of a

[federal] statute indicates that Congress intended federal law to occupy a field

exclusively.” Kurns v. R.R. Friction Prods. Corp., __ U.S. __, 132 S.Ct. 1261, 1265-

1266, 182 L.Ed.2d 116 (2012). Additionally, “pre-emption may result not only from

action taken by Congress itself; a federal agency acting within the scope of its

congressionally delegated authority may pre-empt state regulations.”           In re

Miamisburg Train Derailment Litigation, 68 Ohio St.3d 255, 259, 626 N.E.2d 85

(1994); see Fidelity Fed. S. & L. Assn. v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct.

3014, 73 L.Ed.2d 664 (1982).

       {¶8}    In this case, both the statute authorizing the DOT regulations and the

DOT regulations themselves contain express preemption language. FOETA states:

“A State or local government may not prescribe or continue in effect a law,

regulation, standard, or order that is inconsistent with regulations prescribed under

this section.” 49 U.S.C. 31306(g). Similarly, the DOT regulations state that when

compliance with both state laws and the federal regulations is not possible, or when

the state laws are an “obstacle to the accomplishment and execution of any

requirement” in the DOT regulations, the state law must be preempted. 49 C.F.R.

382.109. See Clanin v. N. Am. Bulk Transp., S.D.Ohio No. CR 3-01-488, 2003 U.S.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Dist. LEXIS 4156 (Jan. 22, 2003) (Congress intended the DOT regulations to

preempt state law).

       {¶9}    Here, the DOT regulations specifically address the legality of Moreno’s

request for DNA testing on his urine specimen. The DOT regulations state “you must

not perform any tests on DOT urine or breath specimens other than those specifically

authorized by this part or DOT agency regulations [and] * * * a laboratory is

prohibited from making a DOT urine specimen available for a DNA test or other

types of specimen identity testing.” 49 C.F.R. 40.13(c). The regulations also state

that if a laboratory is ordered by a court to release a urine specimen contrary to the

regulations, the laboratory is required to “take necessary legal steps to contest the

issuance of the order (e.g., seek to quash a subpoena, citing the requirements of §

40.13).”   49 C.F.R. 40.331.    The Secretary of Transportation, in discussing the

prohibition against producing a urine sample for DNA testing contained in the DOT

regulations, specifically instructed a laboratory to state in its motion to quash a

subpoena that an order to produce a urine specimen for DNA testing is “contrary to

Federal law and subject to Federal pre-emption (under the existing preemption

provisions of [the DOT regulations]”). 65 Fed.Reg. 79462, 79511.

       {¶10} Based on the foregoing, we hold that the trial court’s order, requiring

QDI to produce Moreno’s urine sample for DNA testing, is preempted by the DOT

regulations.   Congress has expressly preempted any state law or order that is

inconsistent with the DOT regulations, and the DOT regulations specifically prohibit

a laboratory from making a urine sample available for DNA testing absent consent

from ODAPC. Therefore, the trial court erred by denying QDI’s motion to quash

Moreno’s subpoena.      See Quest Diagnostics, Inc., v. Swaters, 94 So.3d 635,




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                     OHIO FIRST DISTRICT COURT OF APPEALS



(Fla.App.2012) (holding that the trial court erred by ordering a laboratory, which

performed DOT drug testing, to produce a urine specimen for identity testing absent

the consent of ODAPC, in a negligence action against the laboratory).

       {¶11} Moreno argues that the trial court’s order was not expressly preempted

by the DOT regulations because QDI was able to properly comply with the DOT

regulations as well as the trial court’s order. In support of his argument, Moreno

cites to 49 C.F.R. 40.331(f) for the proposition that once a laboratory has moved to

quash a subpoena seeking the production of a urine sample for DNA testing, its

obligation under the DOT regulations is complete. Moreno also contends that after

QDI had moved to quash the subpoena and the trial court had denied the motion, the

DOT regulations then required QDI to produce the urine sample.             We do not

interpret 49 C.F.R. 40.331(f) in that way. 49 C.F.R. 40.331(f) states, in response to a

court order to produce a urine sample for DNA testing, that “[a laboratory] must take

necessary legal steps to contest the issuance of the order. * * * This part does not

require you to disobey a court order, however.” The Secretary of the DOT has

specifically talked about this last sentence, explaining that it was added simply

because the DOT did not intend to make a laboratory subject to a contempt citation

after a binding court order had been issued to produce a urine specimen.            65

Fed.Reg. 79462, 79511. But here QDI is still in the process of taking the “necessary

legal steps” to contest the trial court’s order to produce the urine specimen for

identity testing. QDI filed a timely appeal, which it had the right to do. Therefore,

QDI is not at a point in these legal proceedings where it can comply with the trial

court’s order without violating the DOT regulations.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12} Because the state court’s order in this case is preempted by federal

regulations, we sustain QDI’s single assignment of error.

       {¶13} The judgment of the trial court is therefore reversed, and the cause is

remanded with instructions to the trial court to quash Moreno’s subpoena, and for

further proceedings consistent with the law and this opinion.

                                               Judgment reversed and cause remanded.


HENDON and DEWINE, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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