                  United States Court of Appeals,

                             Fifth Circuit.

                              No. 92-2361.

              Robert E. WILLIS, Plaintiff-Appellant,

                                     v.

 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.

                             June 6, 1994.

Appeals From the United States District Court for the Southern
District of Texas.

Before KING and JOLLY, Circuit Judges, PARKER,* District Judge.

     ROBERT M. PARKER, District Judge:

     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

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

     *
      Chief Judge of the Eastern District of Texas, sitting by
designation.

                                     1
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. SUMMARY OF CASE FACTS

     The district court concluded that the following facts were

established by the summary judgment evidence;     and 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

La Porte, 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 Porte plant employees.    In July

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

testing policy.

     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 issued to Du Pont,


                                  2
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.                   Plaintiff was

also required to attend counseling sessions and was required to

submit to follow up testing.

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

test had registered a "false positive" (for methamphetamine use).

The false positive was the result of 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, and

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   lost   work    time   repayment      and

reimbursement for medical expenses.

                                II. GOVERNING LAW

       In its Memorandum Opinion and 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.


                                           3
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 below applied state law

to the claims in its Memorandum Opinion granting summary judgment

to Roche.

     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. APPLICABLE STANDARD OF REVIEW

        Willis challenges the district court's interpretation of

Texas    law   and    its   determination   that    no   genuine   issue    of

Defendant's negligence existed in the summary judgment record.              We

review de novo the district court's determination of state law.

See Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217,

113 L.Ed.2d 190 (1991) ("The obligation of responsible appellate

review and the principle of a cooperative judicial federalism

underlying Erie [Railroad 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.").                 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.       See FED.R.CIV.P. 56(c).      Legal questions raised

by a grant of summary judgment are reviewed de novo.

        To recover under a negligence cause of action, the plaintiff


                                      4
(here, Willis) must establish that the defendant owed a legal duty

to the plaintiff, and then, that the defendant breached this duty,

and that damages proximately caused by this breach were suffered by

the plaintiff.    See, e.g., Otis Engineering Corp. v. Clark, 668

S.W.2d 307, 312 (Tex.1983).      The first question in a negligence

case such as this one—whether a duty from the defendant toward the

plaintiff exists—is obviously a pure legal issue, reviewed by this

Court de novo.     The second question, whether any such duty was

breached by the defendant, is a more nuanced "legal" issue for de

novo review by this Court;    it is a legal issue only to the extent

the district court decided that, as a matter of law, the plaintiff

had failed to establish the existence of a material issue of

genuine fact on the breach question.         See, e.g., Jones v. Southern

Marine &    Aviation   Underwriters       Inc.,   888   F.2d   358,   360   (5th

Cir.1989) ("For summary judgment to be granted, the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with any affidavits, must demonstrate that there is no

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

entitled to judgment as a matter of law.").

        The party moving for summary judgment under Federal Rule of

Civil Procedure 56 (here, Roche) bears the burden of establishing

that its opponent has failed to raise a genuine issue of material

fact.    See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.

2548, 2553, 91 L.Ed.2d 265 (1986).         Rule 56 first imposes a burden

of production on the moving party to make a prima facie showing

that it is entitled to summary judgment.            In a case in which the


                                      5
nonmoving      party    bears       the   ultimate      burden     of    persuasion      at

trial—such      as    this    case—the      movant     might     satisfy    its    burden

shifting    obligation         by    either:          (1)   submitting      evidentiary

documents that negate the existence of some material element of the

opponent's     claim     or    defense;          or   (2)   demonstrating        that    the

evidence in the record insufficiently supports an essential element

of the opponent's claim or defense.                   If (and only if) the movant

satisfies      this    prima     facie     obligation,       the   movant       will    have

sufficiently         "shifted"      the    summary      judgment        burden    to     the

nonmovant—to         demonstrate      that       summary     judgment      is    actually

inappropriate.         See Celotex Corp. v. Catrett, 477 U.S. 317, 323-

327, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986);                       Lavespere v.

Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178-179 (5th

Cir.1990), cert. denied, --- U.S. ----, 114 S.Ct. 171, 126 L.Ed.2d

131 (1993).

     Of course, "[s]ummary judgment procedure is properly regarded

not as a disfavored procedural shortcut, but rather as an integral

part of the Federal Rules as a whole, which are designed "to secure

the just, speedy and inexpensive determination of every action.' "

Celotex, 477 U.S. at 327, 106 S.Ct. at 2555 (quoting FED.R.CIV.P.

1;   and citing William W. Schwarzer, Summary Judgment Under the

Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.

465, 467 (1984)).        Nevertheless, just as settled is the principle

that,   when    viewing       summary      judgment     motions,        courts   must     be

vigilant     in       determining         whether      either      an    inference        or

circumstantial evidence might suffice to create the existence of a


                                             6
factual dispute about the claims—lest courts "use summary judgment

as a "catch penny contrivance to take unwary litigants into [their]

toils and deprive [the litigants] of a trial [to which they are

actually entitled].' "     Fontenot v. Upjohn, 780 F.2d 1190, 1197

(5th Cir.1986) (quoting William W. Schwarzer, Summary Judgment

Under the Federal Rules: Defining Genuine Issues of Material Fact,

99 F.R.D. 465, 466 (1984), which in turns quotes Whitaker v.

Coleman, 115 F.2d 305, 307 (5th Cir.1940)).        See also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986) ("at the summary judgment stage the judge's

function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine

issue for trial.");     id. at 251-252, 106 S.Ct. at 2511-12 ("the

inquiry ... is ... whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.").

Indeed,   a   court's     determination   of   a     summary   judgment

motion—whether there exist genuine issues of material fact—requires

deference to the nonmoving party.     See Adickes v. S.H. Kress & Co.,

398 U.S. 144, 158-159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)

(any doubt as to the existence of a genuine issue for trial should

be resolved against the moving party);      United States v. Diebold,

Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ("[o]n

summary judgment the inferences to be drawn from the underlying

facts ... must be viewed in the light most favorable to the party

opposing the motion.").    See also e.g., Jones v. Southern Marine &


                                  7
Aviation Underwriters Inc., 888 F.2d 358, 360 (5th Cir.1989) ("fact

questions    are   considered   with    deference     to   the    nonmovant.");

Archie By Archie v. Illinois Central Gulf Railroad Co., 709 F.2d

287, 288 (5th Cir.1983) ("In reviewing a district court's grant of

summary judgment, we are required to consider the evidence "in the

light most    favorable    to   the    party   resisting    the    motion.'    ")

(quoting    Trevino   v.   Celanese    Corp.,   701    F.2d      397,   407   (5th

Cir.1983);    FED.R.CIV.P. 56);       In re Japanese Electronic Products

Antitrust Litigation, 723 F.2d 238 (3rd Cir.1983) ("[i]f ... there

is any evidence in the record from any source from which a

reasonable inference in the [nonmoving party's] favor may be drawn,

the moving party simply cannot obtain a summary judgment...."),

rev'd on other grounds sub nom. Matsushita Electric Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538

(1986).     Or, as Justice White explained in his "majority fifth

vote," concurring opinion in Celotex Corp. v. Catrett, 477 U.S.

317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):

     [T]he movant must discharge the burden the Rules place upon
     him: It is not enough to move for summary judgment without
     supporting the motion in any way or with a conclusory
     assertion that the plaintiff has no evidence to prove his
     case.

          A plaintiff need not initiate any discovery or reveal his
     witnesses or evidence unless required to do so under the
     discovery Rules or by court order. Of course, he must respond
     if required to do so;      but he need not also depose his
     witnesses or obtain their affidavits to defeat a summary
     judgment motion asserting only that he has failed to produce
     any support for his case.     It is the defendant's task to
     negate, if he can, the claimed basis for the suit.

Celotex, 477 U.S. at 328, 106 S.Ct. at 2555 (emphasis added).

      Moreover, it is especially difficult for a defendant to

                                       8
prevail on a Rule 56 summary judgment motion when the motion is

based on the assertion that there is no factual dispute with regard

to an issue of negligence—inasmuch as those questions (i.e., of

whether the defendant used reasonable care relative to a task in

issue)   are   in   general   regarded           as    being   within   the   special

competence of the jury.           10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER         AND

MARY KAY KANE, FEDERAL PRACTICE   AND   PROCEDURE, CIVIL 2d, § 2729 (Supp.1993).

See also Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d

167, 178 (5th Cir.1990) ("this court has consistently declared that

"the use of summary judgment is rarely appropriate in negligence or

products liability cases, even where the material facts are not

disputed.' ") (quoting Trevino v. Yamaha Motor Corp., 882 F.2d 182,

184 (5th Cir.1989);       other citations omitted), cert. denied, ---

U.S. ----, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993);                   see also Gauck

v. Meleski, 346 F.2d 433, 437 (5th Cir.1965) ("Because of the

peculiarly     elusive   nature         of   the      term   "negligence'     and   the

necessity that the trier of fact pass upon the reasonableness of

the conduct in all the circumstances in determining whether it

constitutes negligence, it is the rare personal injury case which

can be disposed of by summary judgment, even where historical facts

are concededly undisputed.").

                                   IV. ANALYSIS

      We turn now to the question(s) of whether the district court

erred in granting the defendant's motion for summary judgment in

this particular case.

A. DID ROCHE OWE WILLIS A LEGAL DUTY IN NEGLIGENCE?


                                             9
      Willis first challenges the district court's determination

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

reasonable care in its administration of a drug test of Willis's

urine sample.     We agree with Willis that the district court erred

in ruling no such duty existed.

     The district court's holding was predicated on the conclusion

that Texas law was insufficiently developed on the specific issue

of a laboratory's liability for negligent drug testing for a

federal "Erie court" to predict, and thus that the court was forced

to rely on the law of negligence as it applies to physicians

employed as independent contractors.              However, the law of Texas is

indeed sufficiently clear for Erie court prediction purposes on the

specific issue of a drug testing laboratory's duty to testees to

use reasonable care in conducting its tests.                   See, e.g., Doe v.

SmithKline Beecham Clinical Laboratories, Inc., 855 S.W.2d 248

(Tex.App.—Austin 1993) (Carroll, C.J.) (writ of error granted Feb.

2, 1994).

     In     the   recent     Texas   Court        of    Appeals    case   we   deem

determinative     on   the     question      of        duty   presented   in   this

case—SmithKline, supra:        an employer rescinded a job offer it had

made to Plaintiff Doe, because of a "false positive" generated by

the defendant outside laboratory relative to Doe's urine sample.

The drug laboratory in SmithKline used the same testing technology

as was used by Roche in Willis's case—a combination of the initial

"screening" "EMIT" test and the "confirming," more sophisticated

(and more reliable) "GC/MS" test), which mispurported that Doe used


                                      10
opiates.1    Doe's only recourse was to reapply for employment with

the   company   in    six   months;   but   the   company    declined   Doe's

reapplication.       The SmithKline Texas intermediate appellate court

opinion reverses a trial court summary judgment ruling in favor of

the laboratory.

      As the Texas Court of Appeals explains in SmithKline:

           The Texas Supreme Court has described the existence of a
      "duty" [in negligence cases] as follows:       "[I]f a party
      negligently creates a situation, then it becomes his duty to
      do something about it to prevent injury to others if it

      1
          It is common for most drug testing programs to
             differentiate between screening and confirming tests.
             The most accurate tests are expensive, slow and require
             highly trained personnel. This makes them unsuitable
             for large scale drug screening. The practice has
             developed of using an inexpensive test designed for
             maximum sensitivity as a screening test, followed by a
             sophisticated confirming test. Screening tests are
             designed to yield fewer false-negative results, since a
             negative result will end the testing process. By far
             the most frequently used screening test is the Enzyme-
             Multiplied Immunoassay Technique (EMIT). * * *

                  * * * The principal disadvantages         of the EMIT test
             are that adulterated urine samples can         produce
             universally false-negative results and         other
             prescription and nonprescription drugs         may cross react,
             causing false-positives. * * *

             * * * [Gas Chromatography/Mass Spectrometry (GC/MS) is
             a commonly-used "confirming" test]. This is probably
             the most accurate drug testing tool. * * * GC/MS
             instrumentation is usually automated and under computer
             control, with the instrument's operational parameters
             available for storage, printout, and evaluation. Data
             generated from GC/MS instruments can easily be reviewed
             by independent third parties. Within the scientific
             community, it is generally accepted that if positive
             screening test results are confirmed by a GC/MS test,
             no false positives should occur.

      Douglas L. Stanley, Employee Drug Testing, 61 JOURNAL OF THE
      KANSAS BAR ASSOCIATION 19 (Jan. 1992) (citing Reliability of
      Urine Drug Testing, 258 JAMA 2587-2588 (1987)).

                                      11
      reasonably appears or should appear to him that others in the
      exercise of their lawful rights may be injured thereby." More
      recent cases have described duty as a function of several
      interrelated factors—the risk, foreseeability, and likelihood
      of injury weighed against the social utility of the actor's
      conduct—of which the foremost and dominant consideration is
      the foreseeability of the risk. If a risk is foreseeable, it
      gives rise to a duty of reasonable care.

SmithKline, id. at 255 (quoting Buchanan v. Rose, 159 S.W.2d 109,

110   (Tex.1942);    and   citing   Greater       Houston   Transp.   Co.   v.

Phillips, 801 S.W.2d 523, 525 (Tex.1990);          El Chico Corp. v. Poole,

732 S.W.2d 306, 311 (Tex.1987);      Otis Engineering Corp. v. Clark,

668 S.W.2d 307, 312 (Tex.1983);          Corbin v. Safeway Stores, Inc.,

648 S.W.2d 292, 296 (Tex.1983)).         Pursuant to these interrelated

factors of consideration, SmithKline holds that a drug tester owes

a duty of reasonable care to the person whose bodily fluids are

assayed for traces of illegal drugs (the drug testee):

      As stated in [the Texas Supreme Court's case,] Otis, "changing
      social conditions lead constantly to the recognition of new
      duties." Otis, 668 S.W.2d at 310. If any individual has "at
      least partially created the danger" in issue, he is under an
      affirmative duty to act. El Chico, 732 S.W.2d at 306. We
      conclude that SmithKline is not merely an innocent bystander,
      but rather, it partially created a dangerous situation. As
      information services become more prevalent in our society, the
      information providers should be held accountable for the
      information they provide. Such information should be complete
      and not misleading. Credit-reporting agencies have long been
      held to the exercise of due care in securing and distributing
      information concerning the financial standing of individuals,
      firms, and corporations. See e.g., Bradstreet Co. v. Gill, 72
      Tex. 115, 9 S.W. 753, 757 (1888). * * *

           * * * It is foreseeable that employers would interpret a
      raw result showing a positive opiate test result as
      exclusively indicating illegal or illicit drug use and would
      not consider the possibility of ... anomalies.

SmithKline, id. at 255-256. The evidence before the district court

indicates   that    Willis's   employer     (Du    Pont)    may   well   have


                                    12
interpreted   the    Roche-administered      test   results    in   such    an

"exclusively indicative" manner.         One of the items of evidence the

district   court    deemed   determinative    for   purposes   of   granting

Defendant-Appellee     Roche's   motion    for   summary   judgment   was   a

submitted attachment to a Du Pont employee handout, dated December

18, 1989, which "assures" potential testees-employees that Du Pont

was "confident that all positive results will be as accurate as

science permits."     (Record, Vol. 1., p. 274).

      Opinions of the Texas Courts of Appeal are "indicia of state

law," which should be followed by the federal courts sitting as

"Erie courts" absent a "strong showing that the state supreme court

would rule differently."         Lavespere v. Niagara Machine & Tool

Works, Inc., 920 F.2d 259, 260 (5th Cir.1990) (emphasis added;

citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 171, 126

L.Ed.2d 131 (1993).     And the fact that the Texas Supreme Court has

granted a writ of error in SmithKline, and thus will review this

case, does not represent such a "strong showing that the state

supreme court w[ill] rule differently [from the SmithKline Texas

Court of Appeals]."     Indeed, we deem the SmithKline court's basic

reasoning as to the existence of the drug testing laboratory's duty

to be quite soundly based on established Texas law, regardless of

the fact that SmithKline represents the first reported Texas case

to directly address the particular question of the duties of drug

testing laboratories to testees.      SmithKline is certainly a better

representative of relevant Texas law than is the line of physician

liability cases on which the district court relied.


                                    13
      We    deem     it   relevant        as   well    that       several     other     courts

addressing the particular issue of whether a negligence duty runs

from the drug testing laboratory to testees have deployed the same

analysis     exhibited       in    SmithKline.             In    Elliott     v.     Laboratory

Specialists, Inc., 588 So.2d 175 (La.App. [5th Cir.] 1991), writ

denied, 592 So.2d 415 (La.1992), for example, the Louisiana Court

of Appeals affirms an award of $25,000 in damages to a testee

against the drug testing company administering the test, as the

testing      company      was     found    to       have    failed      to    conform       with

appropriate and proper testing methodology.                          Like the Texas Court

of Appeals in SmithKline, the Elliott court explains that to hold

a testing laboratory does not owe the testee a duty to analyze his

or her bodily fluid in a scientifically reasonable manner would

work an abuse of fundamental fairness and justice.                                 The Elliott

court explains that such a laboratory should be held responsible

for its      conduct,       as    the   risk    of    harm      in    our    society    to    an

individual because of a false-positive drug test is so significant

that any individual wrongfully accused of drug usage by his or her

employer is properly within the scope of protection under the law.

Elliott, id.;        see also Lewis v. Aluminum Co. of America, 588 So.2d

167   (La.App.       [4th    Cir.]      1991),       writ       denied,      592    So.2d    411

(La.1992);         Nehrenz v. Dunn, 593 So.2d 915 (La.App. [4th Cir.]

1992). See generally Douglas L. Stanley, Employee Drug Testing, 61

JOURNAL   OF THE   KANSAS BAR ASSOCIATION 19 (Jan. 1992) (noting that "[t]he

most accurate [drug] tests ... require highly trained personnel;"

and "within the scientific community, it is generally accepted that


                                               14
if positive screening test results are confirmed by a GC/MS test"

[i.e., the type of test used by Roche in this case], "no false

positives should occur ";         and reporting that, in light of these

facts, a state court jury in Kansas has held Roche liable to a

testee plaintiff for its improperly administered GC/MS testing of

the plaintiff's urine—which faulty administration resulted in the

generation and reporting of a false positive for plaintiff's

illegal drug use) (emphasis added) (citing a relevant Journal of

the American Medical Association (JAMA) article on the proposition

about   the   generally      reliable    GC/MS     drug    testing    technology:

Reliability of Urine Drug Testing, 258 JAMA 2587-2588 (1987)). See

generally also Canipe v. National Loss Control Service Corp., 736

F.2d 1055 (5th Cir.1984) (reversing the district court's grant of

summary judgment for the defendant in a negligence action brought

(under Tennessee law) by an injured machine operator against the

corporation    which   had    contracted      with   the    machine       operator's

employer      to   provide       safety        inspections          and      related

accident-prevention       services      at   the   plant    where    the    machine

operator worked, because, inter alia, of the existence of genuine

issues of material fact as to whether the defendant corporation

performed its undertaking negligently, and as to whether such

negligence proximately caused the machine operator's injury), cert.

denied, 469 U.S. 1191, 105 S.Ct. 965, 83 L.Ed.2d 969 (1985).

     In sum, we hold that under current Texas law, Roche owed

Willis a duty of reasonable care in conducting tests on Willis's

urine sample for illicit drug use by Willis, for use by Willis's


                                        15
employer    in   decisionmaking     relative      to   Willis's     employment

conditions.

B. DID ROCHE FULFILL ITS DUTY TO EXERCISE REASONABLE CARE IN
     TESTING WITH RESPECT TO WILLIS?

     The district court held too that, even assuming Roche owed a

duty of care to Willis, Roche fulfilled that duty and thus could

not have been negligent.         We conclude that the summary judgment

evidence discloses otherwise.

         As the party moving for summary judgment, Roche has the

initial burden of submitting evidentiary documents comprising a

prima facie showing that it is entitled to summary judgment.

Lavespere, supra, 910 F.2d at 178.          Roche met this initial burden

by producing summary judgment evidence in the form of an expert

affidavit—from    Dr.    Paula    Childs,    a    laboratory      director   at

Roche—that responds to and negates the allegations set out in

Willis's    complaint,   including    Willis's     allegations      concerning

Roche's use of "the most advanced" (GC/MS) testing technology

available, and its administration of that technology (the use of a

particular chemical in the application of the GC/MS technology).

     Hence, the burden was "shifted" to Willis to go beyond his

pleadings, and set out specific facts—supported by evidence—to show

summary judgment was not appropriate, because genuine fact issues

exist.     Lavespere, supra.      To this end, Willis attached to his

affidavit a Du Pont memorandum, which states:                  (1) Roche had

discovered a potential problem with methodology used to confirm

positive tests for methamphetamines;             (2) that it appeared that

this problem was isolated to Roche and to the confirmation of

                                     16
methamphetamines;      and (3) that it appeared the problem began in

June 1990.    This evidence and the inferences from it, viewed in the

light most favorable to Willis, indicate that something unique to

Roche's application of the GC/MS testing technology resulted in a

Roche problem with confirming positive test results.       Although the

memorandum gives no indication of exactly when Roche discovered a

problem existed, read in the light most favorable to Willis, it

suggests that Roche knew or should have known of a problem with its

methodology as early as June 1990—two months before Roche tested

Willis's     urine   specimen.   Summary   judgment   evidence   further

discloses that Roche lost its National Institute on Drug Abuse

(NIDA) certification because of the disproportionately high level

of false positives generated by its particular administration of

the GC/MS methamphetamine tests.

     Willis has therefore called into (genuine, material) question

whether Roche used due, reasonable care in testing Willis's urine

sample.    See, e.g., Humphreys v. PIE Nationwide, Inc., 723 F.Supp.

780 (N.D.Ga.1989) (holding that material issues of fact, precluding

summary judgment, existed as to whether the defendant employer had

followed the proper chain of custody procedures in connection with

the handling of the plaintiff's urine sample for drug testing

purposes).     Roche's summary judgment argument that it was using

"the most advanced" testing technology available when it tested

Willis's sample—and therefore could not, as a matter of law, be

held to have used anything but reasonable care in its testing of

Willis's urine sample—provides it with no summary judgment shield


                                   17
against the obvious genuine issue of material fact in this case as

to   how   it   actually    administered   or   deployed   this   technology

relative to Willis's urine sample. Roche's argument is akin to the

obviously untenable position that there could not be a genuine

issue of material fact about whether a driver of an automobile in

a car crash was negligent in her operation of the vehicle, simply

because the vehicle is generally recognized in the automobile

industry as the safest of all cars currently sold.           See generally

Canipe v. National Loss Control Service Corp., 736 F.2d 1055 (5th

Cir.1984) (reversing the district court's grant of summary judgment

for the defendant in a negligence action brought by an injured

machine operator against the corporation which had contracted with

the machine operator's employer to provide safety inspections and

related accident-prevention services at the plant where the machine

operator worked, because, inter alia, genuine issues of material

fact existed as to whether the defendant corporation performed its

undertaking negligently and whether such negligence proximately

caused the machine operator's injury), cert. denied, 469 U.S. 1191,

105 S.Ct. 965, 83 L.Ed.2d 969 (1985).

      In    sum:           longstanding,   bedrock     summary     judgment

principles—from the days when summary judgment was a relatively

disfavored judicial device, and continuing through the Supreme

Court's 1986 "trilogy" of summary judgment cases liberalizing the

utilization of the device2—are to the effect that fact questions

      2
      See Matsushita Electric Industrial Co. v. Zenith Radio, 475
U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202

                                      18
are considered with deference to the nonmovant, inferences to be

drawn from the underlying facts must be viewed in the light most

favorable to the party opposing the motion, and, in general,

genuine issues of material fact are to be left for reasonable

resolution by the fact-finder.                Under any principled summary

judgment    analysis,   the    record    in       this   case   demonstrates       the

existence    of   genuine   issues    of      material      fact   as    to    Roche's

negligence in conducting a urinalysis for drug use on Willis's

urine sample which resulted in a "false positive."                      The issue is

not whether we (or the district court) think(s) Plaintiff will or

will not prevail at trial.           The issue is whether there exist

genuine, material fact issues for resolution by the trier of fact.

And whether Roche fulfilled its duty of reasonable care when it

tested   Willis's   urine     for   methamphetamine          use   is    a    genuine,

material, disputed fact issue on the record before us. Drawing all

reasonable   inferences     in   favor       of   Summary    Judgment        Nonmovant

Willis, as we must, we conclude that the record in this case

contains evidence from which a jury could reasonably conclude that

Roche was negligent in the manner in which it administered the

generally    reliable   GC/MS    drug    testing         technology     relative    to

Willis's urine sample, and that such negligent application of this

test technology proximately caused injury to Willis.                    Accordingly,

we hold that the district court erred in concluding that there was

no genuine issue of material fact for fact-finder resolution as to



(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986).

                                        19
whether Roche fulfilled its duty to Willis.

C. REGARDING WILLIS'S NEGLIGENCE DAMAGES;               OR, DID WILLIS FAIL TO
     PLEAD A VIABLE THEORY OF RECOVERY?

       Appellee Roche has also argued on appeal that affirmance of

the district court's entry of summary judgment is necessary because

Willis failed to even plead a viable cause of action under Texas

law.       Roche relies on the Texas Supreme Court's recent opinion in

Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993), for the proposition that

Texas does not recognize a cause of action for negligent infliction

of emotional distress.3

       While it is true that the Texas Supreme Court holds in Boyles

that "there is no general duty not to negligently inflict emotional

distress[,]" the Boyles court also carefully explains that its

"decision does not affect a claimant's right to recover mental

anguish damages caused by defendant's breach of some other legal

duty."       Boyles, 855 S.W.2d at 597.           Simply put:     Boyles does not

overrule       Texas   law    generally        developing    negligence      duties,

breaches, and damages—which law constitutes the type of case Willis

pleaded and controls the question of whether there exist or do not

exist genuine issues of material fact in this case.                      Indeed, the

Boyles      court   even     emphasizes    that    it   does    not   disturb    the

"negligent      infliction     of   emotional      damage"     caselaw    concerning


       3
      In Boyles, the plaintiff, a college student, brought an
action against her sexual partner for negligent infliction of
emotional distress she suffered due to various people seeing a
videotape of her and Boyles engaged in sexual intercourse, filmed
by Boyles. Allegedly, ten of Boyles's friends were shown the
tape, and gossip about it spread to Kerr's friends as well as
other students at the university she attended.

                                          20
duties derived from special business relationships.              Boyles, id.,

855 S.W.2d at 597.    See Stuart v. Western Union Tel. Co., 66 Tex.

580, 18 S.W. 351 (1885) (failure of telegraph company to timely

deliver death message);        Billings v. Atkinson, 489 S.W.2d 858

(Tex.1973) (telephone company employee's invasion of a service

subscriber's privacy);      Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904

(Tex.Civ.App.—Houston       [14th    Dist.]    1969,    writ   ref'd    n.r.e.)

(funeral home's negligent handling of a corpse).

      Roche's attempts to make a legal mountain out of the Boyles

molehill notwithstanding, all Boyles holds is that Texas law does

not "impose legal duties based solely on a personal relationship,

even an intimate one."      Boyles, 855 S.W.2d at 600 (emphasis added).

Roche's legal obligation to use due, reasonable care in testing

Willis's urine sample for drug use arises out of the assumption for

consideration    by   the     testing      laboratory    of    the     task   of

drug-testing, and the fact that it is clearly foreseeable that if

this testing task is misconducted (no matter how advanced the

general test technology so administered might be) the testee will

sustain cognizable injury.           This narrow duty is fundamentally

dissimilar from the amorphous duty not to negligently inflict

emotional distress at issue in and rejected by the Texas Supreme

Court in Boyles.

D. DOES WILLIS HAVE A CAUSE OF ACTION AGAINST ROCHE FOR DEFAMATION?

      Finally,     Willis    has    sought    damages   from   Roche   for    the

latter's publication of the false positive test results to Willis's

employer.   Roche has responded that Willis signed a consent form,


                                      21
granting permission to release the results of such tests to Du

Pont. The form reads: "I furthermore give (outside laboratory) my

permission to release the results of such tests to the company."

(Record Vol. 1., p. 252).

         However, in Texas, a purported consent and waiver that does

not expressly release liability for negligence does not constitute

an effective release from liability for negligence.           Texas has

adopted the     "express-negligence"   doctrine,   which   requires   any

purported indemnity agreement to expressly state that it applies to

"negligence" in order to be deemed effective as a release for

negligence liability.     See, e.g., Doe v. SmithKline Beecham, 855

S.W.2d 248 (Tex.App.—Austin 1993).4     We thus hold that the form at

issue in this case is insufficient to release Roche from liability

for publication of negligently obtained false positive results.

         Still, the district court (citing Boze v. Branstetter, 912

F.2d 801, 806 (5th Cir.1990)) also decided that, even without a

valid consent and in light of a "defamatory" report, Roche's

defamatory publication was nonetheless qualifiedly privileged. The

district court's analysis in this respect follows:

          Th[is]   privilege   advances   "the   need   for   free
     communication of information to protect business and personal

     4
      The waiver at issue in SmithKline contained the following
exculpatory language, which the SmithKline court holds inadequate
to shield SmithKline from liability for its negligence—in light
of the "express-negligence" doctrine: "I consent to the release
of the drug screen results to authorized Quaker representatives
for appropriate review. I release and agree to hold harmless
Quaker, its employees and its agents, from any liability to me
based on the results of the drug screening." Doe v. SmithKline
Beecham, 855 S.W.2d 248, 253 (Tex.App.—Austin 1993) (Carroll,
C.J.) (writ of error granted Feb. 2, 1994).

                                  22
     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 [798] at 801 [Tex.App.1981].

          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 [743] at 754
     [Tex.Civ.App.1976] (citations omitted). Plaintiff has failed
     to demonstrate express malice or implied malice.

Record   Vol.   1.,   p.   424.    We    agree   with   this   reasoning   and

conclusion by the district court;            and hold therefore that the

trial court was correct in granting Roche's motion for summary

judgment on Willis's defamation claim.

                           V. CONCLUSION AND ORDER

     For the foregoing reasons:              the portion of the district

court's Memorandum Opinion and Order granting summary judgment to

Roche on Willis's negligence-in-testing claim is REVERSED and

REMANDED for further proceedings consistent with this Opinion; and

the portion of the district court's Memorandum Opinion and Order

granting summary judgment to Roche on Willis's defamation claim is

AFFIRMED.

     It is Hereby So Ordered.

     E. GRADY JOLLY, Circuit Judge, dissenting:

     As Judge Parker's opinion properly notes, the bottom-line

question in the present case is whether the district court erred in

granting the defendant's motion for summary judgment.                After a

careful review of the applicable law and the relevant parts of the


                                        23
record, I am convinced that the trial court committed no error.

Because the summary judgment evidence produced by Willis was

insufficient to support a jury finding of negligence on the part of

Roche, I respectfully dissent.

      The initial—and fundamental—problem with the majority opinion

is that it views the district court's grant of summary judgment

through the old and scratched lens of ancient summary judgment law

as it stood before the Supreme Court's 1986 summary judgment

trilogy, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);                       Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986);      and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986).              Although the motion for summary

judgment was harshly viewed and strongly discouraged prior to

1986,1    the    Supreme   Court   made    clear     in   Celotex   that       summary

judgment     should    not   be    regarded     as   a    disfavored    procedural

shortcut:       Summary judgment is "an integral part of the Federal

Rules ... which are designed "to secure the just, speedy and

inexpensive determination of every action.' " Celotex, 477 U.S. at

327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.Proc. 1).

      Although the majority begrudgingly pays muffled lip service to

the current law on summary judgment, it makes clear its disfavor

for   such      principles   at    the   very   beginning      of   its    opinion,

intimating that we should be particularly wary of this grant of


      1
      1 STEVEN A. CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS          OF   REVIEW §
5.04, at 5-26 (2d ed. 1992).

                                          24
summary judgment.          First, the majority states that courts must be

careful    not   to    "    "use   summary    judgment   as   a   "catch    penny

contrivance." ' "          See slip op. at 4542.     This particular fear of

summary judgment finds its roots in a 1940 Fifth Circuit case.2

Furthermore, the primary and more recent case on which the majority

relies, Fontenot v. Upjohn, used this language specifically to

emphasize that courts should not be so suspicious of summary

judgment—the "early disposition of baseless claims and defenses is

insistent and well founded."           Fontenot, 780 F.2d at 1197.          After

the trilogy, it is clear that "[o]ld dicta urging unusual restraint

are no longer valid."         1 CHILDRESS & DAVIS, supra note 1, § 5.04, at

5-48.

     Next, the majority states that summary judgment should not be

applied in negligence cases.             See slip op. at 4544.             Again,

however, its support for this dubious overstatement is tenuous:

The Wright & Miller citation noted by the majority in turn cites a

North    Carolina     state    court   case   as   its   authority,3   and    the

majority's other citation, Gauck v. Meleski,4 dates back to 1965.

Furthermore, even though we repeated this sentiment in a more



     2
      The majority cites Fontenot v. Upjohn Co., 780 F.2d 1190,
1197 (5th Cir.1986) (quoting William W. Schwarzer, Summary
Judgment Under the Federal Rules: Defining Genuine Issues of
Material Fact, 99 F.R.D. 465, 466 (1984), which in turn quotes
Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940)).
     3
       See 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2729 (Supp.1993) (citing Smith v. Selco
Products, Inc., 96 N.C.App. 151, 385 S.E.2d 173, 175 (1989)).
     4
        346 F.2d 433, 437 (5th Cir.1965).

                                        25
recent case, Lavespere v. Niagara Mach. & Tool Works, Inc.,5 we

went on to uphold the district court's grant of summary judgment in

that case, noting that the determinative question is whether there

is sufficient evidence to support a jury finding in favor of the

nonmovant. If there is insufficient evidence, a jury can decide no

question, no matter how "inherently normative" the question may be.

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d at 178-79;

see   also   Fontenot,    780    F.2d   at    1196   (summary     judgment    was

appropriate in defective design case).

      Ultimately, the majority concludes that Willis has "called

into question" whether Roche was negligent in its testing of

Willis's urine sample.          Slip op. at 4547.         Again, however, the

majority's   focus   is   outdated.          There   is   no   doubt   that   some

questions do remain unresolved in the scant record before us, but,

in the light of the summary judgment law applicable today, those

questions are not the question.6             After Celotex, the question is

whether the parties to the suit have satisfied their respective

evidentiary burdens.       In the present case, the answer is no:

Willis simply did not carry his burden.


      5
      910 F.2d 167, 178-79 (5th Cir.1990), cert. denied, --- U.S.
----, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993).
      6
      "[T]he Court now frames the primary issue in summary
judgment motions not as whether enough evidence exists to raise
an inference to be resolved at trial, but whether sufficient
evidence in the pretrial record exists to allow the plaintiff to
win at trial or to survive a motion for directed verdict, were
one based on the facts in the pretrial record. That is a higher
threshold for nonmovants to survive a summary judgment motion
than was expressed in prior Supreme Court cases." 1 Childress &
Davis, supra note 1, § 5.04, at 5-32.

                                        26
     In Lavespere we stated that a movant for summary judgment can

satisfy his initial burden by "submit[ting] evidentiary documents

that negate the existence of some material element of the nonmoving

party's claim or defense."       Lavespere, 910 F.2d at 178.          In the

present case, Roche produced summary judgment evidence, in the form

of an expert affidavit, that specifically and completely responded

to, and negated every allegation set out in Willis's complaint.

Thus, Roche made a prima facia showing that it was entitled to

summary judgment, and the summary judgment burden then shifted to

Willis to show that a genuine, material issue of fact remained for

trial.

     In order to carry this responsive burden, Willis was required

to go beyond his pleadings and produce evidence that would have

supported a reasonable jury in returning a verdict in his favor.

Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.           Willis's evidence

should have contained "specific facts,"7 because Anderson provides

that if the pretrial evidence "is merely colorable" or "is not

significantly   probative,"     summary    judgment   should   be   granted.

Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511.                    When the

nonmoving   plaintiff   comes    forth    with   unspecific,   insufficient

evidence, the court must grant the summary judgment because, in

that case, only an irrational trier of fact could return a verdict

in the plaintiff's favor.       Matsushita, 475 U.S. at 587, 106 S.Ct.

at 1356 ("Where the record taken as a whole could not lead a


     7
      Fed.R.Civ.Proc. 56(e); see Matsushita, 475 U.S. at 587,
106 S.Ct. at 1356; Lavespere, 910 F.2d at 178.

                                    27
rational trier of fact to find for the nonmoving party, there is no

"genuine issue for trial.' " (emphasis added)).

       In    an    attempt   to   meet   his   burden,   Willis   produced   the

following evidence:

       1. Roche discovered a potential problem with methodology used
            to confirm positive tests for amphetamines;

       2. it appeared that this problem was isolated to Roche and to
            the confirmation of amphetamines; and

       3. it appeared the problem began in June 1990.

Judge Parker states that this evidence, "read in the light most

favorable to Willis ... suggests that Roche knew or should have

known of a problem with its methodology as early as June 1990."

Slip op. at 4547.        Willis's evidence, however, "suggests" no such

conclusion, much less offers and evidentiary proof, either direct

or circumstantial.8          In all due respect, no rational court would

hold       Roche   liable    in   negligence    based    on   this   scant   and

disconnected evidence.

       As the majority has noted, it is a "longstanding, bedrock

summary judgment principle[ ]" that we must construe the evidence

presented, and any reasonable inferences therefrom, in the light

most favorable to the nonmovant.           This standard, however, does not

allow, much less require, that we draw strained and unreasonable

inferences in favor of the nonmovant.               In the present case, in

       8
      Nowhere in Willis's briefs does he argue that Roche should
have known of a problem with its methodology as early as June
1990, which is the theory of negligence advanced by majority
opinion. Thus, the majority not only supplies speculative
evidence to fill the evidentiary gaps left by Willis, but it
supplies his theory of negligence as well. The wonder is whether
there remains any role for Willis's lawyer.

                                         28
order for a jury to return a verdict in favor of Willis, it would

either have to make an unsupported leap in logic or rely on

speculative evidence that certainly is not included in the summary

judgment record.     Thus, based on the record evidence standing

alone, no reasonable juror could conclude that Roche failed to use

due care.

     The essence of Willis's failure is that his evidence simply

fails to go far enough to establish negligence.     In other words,

Willis's summary judgment evidence may, to be sure, leave open the

possibility that Roche was negligent, i.e., nothing in the evidence

forecloses the possibility that Roche should have known that its

testing methodology was unreliable.   But Willis was required to do

"more than simply show that there is some metaphysical doubt as to

the material facts."    Matsushita, 475 U.S. at 586, 106 S.Ct. at

1356.   A "merely colorable" claim is not enough.   Anderson, 477 at

249-50, 106 S.Ct. at 2511.    Instead, Rule 56 demands that Willis

set out "specific facts" pointing to some act of negligence on the

part of Roche.   See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356;

Lavespere, 910 F.2d at 178.

     Willis, however, came forth with no such minimally required

evidence. Willis identified no single negligent act of Roche or of

anyone else.     Instead, the extent of Willis's evidence was that

anomalies had resulted from Roche's drug testing procedures, that

Roche had discovered the problem, and that Roche had its NIDA

certification revoked because of excessive false-positive results.

Willis's evidence detailing the problem that Roche discovered


                                 29
(i.e., that the chemical agent CHFB reacted with ephedrine and

pseudoephedrine to produce a false positive result) may well prove

the cause of his anomalous drug-test results, but it in no way

supports a finding of negligence on the part of Roche.9

       In   sum,   I   find   that   the    majority   has    taken   this   weak,

factually-unsupported case, and has back filled the facts and

engineered the applicable law at every turn in order to reverse the

district court's judgment and to remand the case.                 Even the legal

basis for this negligence claim is anything but settled under Texas

law.

       As it was presented in the district court, and as it is now

presented     to   us,   this   is   a     meritless   case   that    was    wholly

appropriate for summary judgment.               I would affirm.




       9
      Willis's failure in this regard presents yet another basis
for affirming the district court's grant of summary judgment on
Willis's defamation claim. See slip op. at 4550-51. Willis's
evidence will not support an essential element of his defamation
claim—that is, Willis cannot show that Roche published
information that it should have known was false. See Durham v.
Cannan Communications, Inc., 645 S.W.2d 845 (Tex.App.—Amarillo
1982, writ dism'd).

                                           30
