September 2017

This article is Part Three of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series.

A few months before the Barbuto opinion, see Parts 1 and 2, a Rhode Island court issued a summary judgment ruling making it easier for employees to claim employment discrimination resulting from their status as qualifying medical marijuana patients.  See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. May 23, 2017).  Judge Licht of the Rhode Island Superior Court issued an opinion in which he discussed the intent of Rhode Island’s General Assembly in enacting the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 §§ 21-28.6-1 et seq. (the “Hawkins-Slater Act” or “RIMMA”).  Plaintiff Christine Callaghan alleged that because she held a medical marijuana card, Defendants Darlington Fabrics Corporation (“Darlington”) and the Moore Company (collectively, “Defendants”) had discriminated against her with respect to hiring for an internship position.  See id. at 1.

The material facts forming the foundation of Ms. Callaghan’s claims were not disputed by the parties.  Plaintiff needed to complete an internship to fulfill the requirements of her Master’s program at the University of Rhode Island.  Id.  Ms. Callaghan’s professor directed her to Darlington, a division of Moore Company, where Plaintiff met with Darlington’s Human Resources Coordinator, Karen McGrath, on June 30, 2014.  Id.  After Plaintiff was required to sign a Fitness for Duty Statement, which acknowledged that she would have to take a drug test before being hired, Plaintiff advised Ms. McGrath that she held a medical marijuana card authorized by the RIMMA.  Id.

During a conference call on July 2, 2014, Ms. McGrath and a colleague asked Plaintiff whether she was currently using medical marijuana.  Plaintiff responded affirmatively, explained that she would test positive for marijuana, and informed Darlington’s employees that she was allergic to other pain medications and would neither use nor bring medical marijuana with her into the workplace.  Plaintiff did not receive an internship.

Plaintiff then filed a three-count complaint on November 12, 2014. Count I sought a declaration that the “failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user is a violation of the” Hawkins-Slater Act.  See id. at 2 Counts II and III sought damages: Count II alleged Defendants’ conduct violated the Rhode Island Civil Rights Act (RICRA), G.L. 1956 §§ 42-112-1 et seq.; and Count III alleged violations of the Hawkins-Slater Act due to employment discrimination.  See id.   Defendant moved for summary judgment on all three counts under Superior Court Rules of Civil Procedure 56.  Plaintiff filed a cross-motion for summary judgment on Counts I and III, and otherwise opposed Defendants’ motion on Count II.  See id. at 1.

The Court first endeavored to determine whether § 21-28.6-4(d) of the RIMMA, which provides that “No school, employer, or landlord may refuse to enroll, employ,
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Recently, the Texas Court of Appeals (1) upheld a jury’s finding of gross negligence and (2) explained how a trial court should calculate exemplary damages under Texas law, in The Goodyear Tire & Rubber Company, v. Vicki Lynn Rogers, et al., No. 05-15-00001-CV, 2017 WL 3776837 (Tex. App. Sep. 13, 2017).  In this case, the decedent, Carl Rogers, passed away from mesothelioma.  From 1974 to 2004, he worked as a tire builder at a Goodyear facility in Tyler, Texas, where he allegedly was exposed to asbestos from overhead insulation and from brakes in tire building machines located in the Tyler facility.  Mr. Rogers’ wife (as the representative of his estate) and two daughters sued his employer, The Goodyear Tire & Rubber Company (“Goodyear”), for wrongful death allegedly caused by Goodyear’s gross negligence.  Typically, workers’ compensation is the exclusive remedy for plaintiffs who attribute the cause of death to the negligence of a decedent’s employer.  However, Texas’ workers’ compensation law allows a plaintiff’s surviving spouse and heirs to recover exemplary damages when the employee’s death resulted from the employer’s gross negligence.

The jury found by clear and convincing evidence that Goodyear’s gross negligence caused Mr. Rogers’ mesothelioma, and ultimately, his death.  To calculate exemplary damages, the trial court asked the jury to determine plaintiffs’ past and future pecuniary loss, past and future loss of companionship and society, and past and future mental anguish.  In addition to making those findings, the jury assessed $15 million in exemplary damages, with 90 percent of the award apportioned to the widow and 5 percent to each daughter.  After the jury’s verdict, the trial court conducted its own calculation of damages according to section 41.008(b) of the Texas Civil Practice and Remedies Code, which lowered the total award to $2,890,000.  On appeal, Goodyear unsuccessfully challenged the jury’s finding of gross negligence, but prevailed in its challenge to the trial court’s calculation of exemplary damages, reducing the total award to $1,150,000.

To prove gross negligence, “a plaintiff must demonstrate, by clear and convincing evidence that: (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”  U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).

The Texas Court of Appeals first addressed the objective component of gross negligence, and described extreme risk as the likelihood of the plaintiff’s serious injury, rather than a remote or even high probability of minor harm.  While Goodyear conceded that mesothelioma is a serious injury, it argued the plaintiffs did not prove the likelihood of that injury.  To support this argument, Goodyear used the plaintiffs’ best evidence regarding dosage, which increased the risk of developing mesothelioma by 22 times over that of someone who was not
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This article is Part Two of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. Read Part One here.

The Supreme Judicial Court’s ruling in Barbuto marks a significant departure from case law arising under the medical marijuana laws of other states, and in particular, the way in which other courts have interpreted conflicting federal law related to the possession, use, cultivation or sale of marijuana.

The Federal Controlled Substances Act (“FFCSA”) prohibits any and all use of marijuana.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances, which includes all Schedule I drugs).  All elements of marijuana are encompassed within the FCSA’s definition of marijuana.  See 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”).  Significantly, the FCSA does not provide an exception for the use of medical marijuana or medical marijuana derivatives. Ergo, the use of medical marijuana and all associated materials, in any form whatsoever, are illegal under federal law.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances for all Schedule I drugs).

The FCSA’s blanket proscription of marijuana also carries over to federal disability law. The FCSA precludes employees (regardless of whether they are qualifying medical marijuana patients under state law) from commencing discrimination claims under federal law for adverse actions taking by employers as a result of medical marijuana use.  See 42 U.S.C. § 12210(a) (2012) (“For purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”); see also 21 U.S.C §§ 802(16), 812(c), 844(a) (establishing illegality of marijuana in any form).  If not for this clear federal embargo on such claims, employees would most likely seek relief through the Americans with Disabilities Act (“ADA”).  See 42 U.S.C. § 12112(b)(5)(B) (2012) (creating private cause of action arising under federal law for an individual with a disability who is denied “employment opportunities and is an otherwise qualified individual”).

The ADA provides a federal claim for disabled employees who are discriminated against in their place of employment because of a disability.  See 42 U.S.C. § 12102 (2012) (defining “disability” as
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Defendant The Raymond Co. saw its summary judgment victory overturned by California’s 4th District Court of Appeal in a surprising turn of events in its ongoing product liability case in San Diego Superior Court. In its July 2017 decision, the 4th District held that The Raymond Co. failed to meet its burden to show that the risk-benefit test applied to dismiss the claims made by plaintiffs Sandra and Kawika Demara.

The Demaras filed their lawsuit initially when Mr. Demara allegedly sustained injuries in 2011 as a result of alleged design defects in one of Raymond’s forklifts being operated at a warehouse in Carlsbad, California. According to their complaint, the Demaras alleged that a Raymond 7400 series forklift was backing up, changing direction, and turning, when the drive wheel ran over Mr. Demara’s foot and crushed it. The Demaras alleged in their complaint that Mr. Demara did not see the forklift or its warning light. As a result, he had to have multiple surgeries on his foot and remains permanently disabled with pain. In a single cause of action for products liability, the Demaras alleged strict liability on claims for defects in the design, manufacture, and warnings, and one claim for general negligence.

The San Diego Superior Court trial judge had previously granted Raymond’s summary judgment by deciding that the Damaras failed to raise a triable issue of material fact as to the issue of causation. The trial court also rejected the argument that the consumer expectation test ought to be applied as a matter of law and that even assuming the Demaras had raised a triable issue, Raymond had sufficiently applied the necessary elements of the risk-benefit test.

Rejecting the lower court’s ruling, 4th District Presiding Justice Judith McConnell concluded that the trial court’s conclusions were incorrect because the Demaras’ causation evidence was ample enough to defeat Raymond’s summary judgment motion. McConnell ruled that “in applying the risk-benefit test, [Raymond] failed to present sufficient evidence to shift the burden to plaintiffs to show a triable issue of material fact.”

The 4th District cited to the decision in Campbell v. GM Corp., (1982) 32 Cal.3d 112 for the general rule that under the consumer expectation test and the risk-benefit test, to prove a design defect claim, the plaintiff must show that the product at issue failed to perform safely and that this failure played a substantial role in causing the harm. Raymond’s summary judgment motion hinged on the argument that the Demaras failed to show that the design of the forklift played a substantial role in causing Mr. Demara’s injury. According to Justice McConnell, however, “[Raymond] presented neither evidence nor inferences from evidence to suggest that the design was not a substantial factor in bringing Demara’s injury.”

Justice McConnell went on further to state  “because the Defendants’ statement that the occurrence of the accident was not evidence of a defect that caused Plaintiff’s injuries is not a prima facie showing that Plaintiffs cannot prove causation,
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This article is Part One of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series

In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another, SJC-12226 (July 17, 2017), slip opinion[1], the Supreme Judicial Court of the Commonwealth of Massachusetts was confronted with Plaintiff Cristina Barbuto’s (hereinafter, “Plaintiff” or “Ms. Barbuto”) direct appeal of the Superior Court’s Decision to grant, in part, Defendant Advantage Sales and Marketing, LLC’s (hereinafter, “ASM”) and Defendant Joanna Meredith Villaruz’s (hereinafter, “Ms. Villaruz”) (collectively, “Defendants”), Motion to Dismiss her Complaint.  The Complaint flowed from Plaintiff’s termination from her employment with ASM as a result of her testing positive for marijuana in connection with a mandatory drug test.  See id. at 4.

Ms. Barbuto was offered and accepted a job from ASM in the late summer of 2014.  See id. at 3.  After she accepted the position, an ASM representative communicated to Ms. Barbuto that she would be required to take a mandatory drug test.  See id.  Ms. Barbuto advised the ASM employee that she would test positive for marijuana.  See id.  She further explained that she suffered from Crohn’s disease and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes, which rendered her a qualifying medical marijuana patient under Massachusetts law.  See id.  Ms. Barbuto advised the ASM employee that she did not use marijuana daily and agreed that she would not consume it before work or at work. See Barbuto, supra, slip opinion at 3.

Thereafter, the ASM representative advised her that such use would not preclude her employment at ASM, alerted her that this would be confirmed with ASM and later provided her with confirmation that her lawful medical use of marijuana would not be an issue with the company.  See id. at 4

On September 5, 2014, Ms. Barbuto submitted a urine sample for the mandatory drug test. On September 11th, she participated in an ASM training program wherein she received a uniform and her job assignment, and she later completed her first day of work—without use of marijuana before or during her shift.  See id.  Later that evening, Ms. Villaruz, ASM’s Human Resources representative, informed Ms. Barbuto that she was being terminated as a result of testing positive for marijuana and also advised Plaintiff that ASM did not care if Ms. Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”  See id.

After her termination, Plaintiff filed a verified charge of discrimination against Defendants with the Massachusetts Commission Against Discrimination (“MCAD”), which was later withdrawn prior to her filing of a Complaint in Superior Court.  See id. at 4-5.  The Complaint alleged six (6) distinct Counts: (1) handicap discrimination, in violation of G. L. c. 151B, § 4 (16); (2) interference with her
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