and i realize counsel are a little complicated here on the i hope you'll help us by reminding us who you represent and we certainly will your honor and to simplify this a little bit i won't i will be very long and will reserve some time for my coll name's mark louis i represent dr terence mcgee and kim mcgee they were the defendants in the underlying action an adverse verdict was of course entered against them the the primary issue before the court today is whether or not dr mckee owed a legal duty to the plaintiffs in connection with a workplace drug test mr or dr mcgee rather was a third party there the question of whether a duty exists is of course a question of law the burden on proving the duty is on the plaintiffs the plaintiffs of asserted two forms of duty first that there was an assumed duty under washington law and they point to the robbers as city of seattle case and secondly the ninth circuit common law the ninth circuit common law we suggest does not exist with respect to the assumed duty we don't believe that there is an assumed duty and we think that the robb case stands for the directly opposite position where we do not assume duties we don't manufacture them in retrospect  the closest pronouncements we have on these principals coming from the state of washington are from a series of cases in the late ninety's and early two thousand which culminates in the judy vs hanford case and w difference i don't think it does and i don't think it does if you were just a chemist qualified certified to do to do what he did here you would you be making exactly the same argument not if you were a chemist if for instance if you were still a health care provider because washington law adopts specific classifications for health care providers what what what does being a health care provider have to do he wasn't a health care provider here he was nothing in that in that in that role here sure in that is conceded there is no r c w seven seventy claim it's not under the medical malpractise act but if you look at judy versus hand for instance what judy tells us is that when an individual with medical expertise comes in they have a narrow potential field of duties that they might owe to someone downstream like an employee like mr king and what hanford tells us in that case where they were they acting in a medical capacity no in so but the plaintiffs made both claims they made a r c w seven seventy claim under the medical malpractise act and then as a as a fallback position they asserted a general negligence claim and what the hanford vs judy court said is that there might be liability to the employer under these circumstances but we've never extended the duty far enough to reach to a third party who's involved in doing a pre employment physical what judy does say is that there are circumstances under which a third party could nevertheless be held liable but those would be in a situation where the individual say that but but certainly there could be causes of action available by the hospital for incorrectly performing the employment physical it wasn't asserted in this client this case but certainly it's a potential cause of action let me ask you a little bit different question i read another washington cases phillida of f e m a insurance versus l t k consulting which is a case about an engineer who undertook some contractual obligations but before undertaking the contractual obligations was sued just under general toward duty and that engineer was held to have a duty i'm not is this any different than that i'm not familiar with that specific case but at the trial court level we did cite berg versus shannon and wilson which is essentially the same argument which is there were uphill landowners and downhill land owners and there was an assertion that the engineer a geotechnical engineering firm that did an analysis of that upward land owed a duty to the downhill landowners and the court decided that in the absence of privity in the absence of a direct relationship there was no duty well but i guess in this particular case what the washington supreme court said was that engineers who undertake engineering services in this state are under a duty of reasonable care and the duties relate to everything that the engineer might do and the only question was what is the scope and i guess they would in fact said in that particular case the scope would include somebody like in this case the plaintiff in engineering of course the one distinction i would draw without having read the case is that i understand the scope concern because when you have an engineer you're building something that's available and accessible to everyone and so i'm sure there are well but in this particular and that's the reason why in reading that case i see myself the list seems to say there is a duty here and the scope is easy to make because there's no question that your client was doing something that this particular if you will the plaintiff had every bit of a chance to rely on what that person was doing but mr king in this instance was not a direct beneficiary of dr mckee's actions he wasn't entitle vote for but that was that was very easy to see a by everybody i mean everybody knew exactly what was going on whatever to was going to be the law with respect to k and if mcgee said king is clear king was clear and if he said king is king is is guilty here then king was guilty and every everybody knew that well including d mcgee i would respectfully disagree because i think that the employer still had the opportunity to do a fitness for duty examination they could have taken king at his word they could have given him a separate just as he was doing at his work once once dr mcgee had done had done this and said there's no way that the tylenol three can explain the levels of morphine coating in his system then you take king at his word and say when king requests a supplemental examination or says this test is absolutely wrong i've been a good employee then you perform another test or consult with another doctor it's a hospital they have doctors available and doctors were deposed in this case so even if even if dr mcgee had gone back to the office and flipped a coin to decide whether or not the levels were high were too high understood but i think it's a saying it's the same sort of situation i think it's the same that's the reason i put you with this case affiliated af am this seems to talk about a duty which is outside of the contract which has more with what is the general duty of someone who based on the state having given him the authority to do what he has to do water is duties and and here and engineers in the same kind of position is this doctor and they said it's a general duty to everyone and all we're talking about then is what's the scope and i didn't think there was any question about the scope here because everybody knows everybody's well aware this is the task that's going to make a difference and this is the explanation that's going to go out i'm sort of back and backed into a corner on the scope issue not being familiar with that case and i'd i'd rely on my earlier argument to suggest that engineers and individuals who perform medical examinations for employers have a different scope of individuals that they deal with that they examined and the employers that they report to with that said i'm i'm well over my dr mcgee as i understand your argument is an independent contractor yes and there was no evidence but nonetheless he was brought to the party by you right by o h s yes they hired him as an independent contractor to read no we're talking then about a parent agency yes your honor so the plaintiff relied on the existence of the agency to his detriment and in this case there is nothing in the record that mr knew what they dead it looks like you've got some cases it looks like you've got some support there but the sort of striking development is that is the shift between a second restatement of the third restatement which it appears that reliance has been dropped from the third restate cases in washington that are now relying on the third restatement i'm not aware of any your honor and i gassed up the only comment i have towards the third restatement is that it's important to be mindful that this was a negligence based case and the vast majority of the apparent authority cases come up in either a transactional or contractual context and that you've got to cause the one claiming apparent authority to actually subjectively believe that they have the authority nor are you really arguing that they must be such that the claim of the actual subject of release relief is objectionably reasonable well judge we've made all of those arguments that our briefing and to the extent we've done that we are relying on that however for looking at the core issue here i believe it is the reliance issue and that's our primary argument ok appeal against garfield hospital so i'll be speaking for about twelve minutes today than on the court's questions i'd first like to address the issues raised by dr mcgee regarding duty dr mcgee relied heavily on the judy v hanford environmental case and that case is very distinguishable from this case and that under this case we have not brought our cause of action under our c w seven seventy which is a medical negligence cause of action we have alleged that d had a common law duty and that that common law duty is what he violated so really you're suggesting there is no statutory duty here yes your honor under seven  seventy we agree that under seven seventy there may not be a statutory duty and that is why we did not plead the claim that we brought it is a common cause of action common and really the cases that i think are most on point when we look at an washington case it's a ninth circuit case i don't i don't care what california i don't even care what nevada things are even if i live there but that's i would like to know whether it's a washington case is not a washington ok i don't know why the common law does does washington except the common law duties honored by the ninth circuit in other states are just making an example that there has been and what does washington say about common law duties washington when they talk about the common law did i would point your honor to the is king county and it turns on foreseeability is the harm forseeable and in this case we had our expert dr paul answer testify that there was a duty and that it was foreseeable and then we had dr mcgee through his own testimony testify that it is foreseeable that based upon his interpretation of the urine drug screen is either positive or negative an individual will either retain their position gain employment or be terminated and so really that's where the common law duty comes in is foreseeability is it foreseeable that if you are negligent and interpret in a urine drug screen that that will have consequences to the donor is there a different duty as it relates to a doctor in washington than any other given the capacity of what this doctor did i mean that's the only thing that worries me because i found i mean i looked at  mean those are cases where the affiliated as engineers not really about a doctor and i'm just wondering if that therefore if there's some differentiation to be made as to common law negligence then well i think the difference the differentiation lies in and one how it's been plugged into really the fact that dr mcgee isn't necessarily a health care provider in this situation he's more akin to an engineer and that he has interpreted drug test results he had no hands on interaction with my client he did have interaction over the telephone but he didn't have hands on interaction such as a surgeon would have with a patient or an orthopedist or some sort of practitioner in a clinical setting would have a hands on approach and there and that's were seven seventy lies but we didn't bring it under seven seventy were brought out of the common law and so under the common law it's a foresee ability test is it foreseeable that this this violation of your duty would cause harm and in this case we have the testimony of dr mcgee as well as the testimony of our expert on m r o paul answer who said yes it is foreseeable that when i'm interpreting these tests i know that oftentimes the employers employ ability and future employment lies with me and the interpretation as to whether or not they have a positive drug test they have a negative drug test so for those reasons you know we believe that it was properly submitted to the jury and that the jury did make a correct verdict in that dr mcgee had a duty he breached that duty and that that duty caused damages to mr king and so we would ask that at least deciding whether we should have granted summary judgment prior to getting to the jury are we just yes we are and i agree i point to judge rice's opinion that he found that there was a duty and then you know i believe that that was also supported by the jury verdict but i agree we're not here looking at the jury verdict with regards to an agency i think your honour's hit it right on the head here when we're talking about not the first or second prong but whether there was detrimental reliance this this elusive third prong if you will of whether or not it applies or doesn't apply and i would suggest that it does not apply the restatement third has taken that out as washington bound itself to the third restatement question that's a that's a that's a question of you know who prepared of invited error of waiver it's a question of anything but washington law so what does washington law tell us about reliance i've read a number of cases in which washington ha required proof of reliance and cited the restatement second what washington cases indicate that washington would change course and now follow the  i think that you need to look at the ranger case and all the other cases that are set in our brief i'll be fair i've looked at those cases and i don't think any one of them says washington dops a restatement third reef third third comes along and changes all of that it seems to me do i get to second guess washington but only if washington adopts the recycler this is this is a this is this is model law it's not it's not binding on washington right right and i understand i think i think really the bigger issue here is i think the facts as we're flushed out a trial show that doctor or that my client mr king if we do go down the reli i've just adding one more part to the whole i didn't see any reliance here well i think the reliance comes in that my client was reliant on dr mcgee and also i know it just by and through their communications and so  i can understand you're going to get through the first two prongs based on the communications in fact i've even got it down there but reliance you're not going to get through it on that what communication says that he relied that he relied on the actions of oh it just yes detriment well he it was really his inaction if you will of not seeking a third opinion not going to dr mcgee directly and giving him the additional information everything went through the if washington requires proof of reliance i'm having a very difficult time seeing where you relied on what we just prayed and i agree just for timing purposes i like to move on if i may two or three other is s so we've also got an appeal against garfield county who is out on summary judgment garfield county public hospital district and so really garfield county has responded to our motion and said  really we were up on the ninth circuit years ago on call site immunity and they've brought a motion for summary judgment was granted by judge rice finding that the law of the case truckin applied and we believe that judge rice's decision that was in the air and the reasons why we believe that are because it was a qualified immunity analysis and as this court knows a qualified immunity analysis is really a two step process one was there a due process right that was violated or a constitutional right violated and two was that right clearly sample that it could result in terminations notice of that as well that your client had the opportunity explain the drug past to the three hospital administrator zz and a medical review officer that your client had an opportunity submitted to tional information that was sufficient to process therefore no constitutional violation not a matter of no notice no constitutional violation and therefore i'm unity and therefore the hospital at least as to those particular claims there's no way to get to the hospital because all or employees are immune  read the decision a little differently and i read the decision as you know you can you can address qualified immunity on prong one or on problems and they address that on prong one why would they say this as i read that and i think you're referring to the after where they say there is no clearly established right then they go through and say here are the arguments counsel presented and as to whether or not there was due process and whether it was violated i think that is dicta that's not it's  cornerstone of the case and will strike that it's not a cornerstone of the opinion the opinion is based upon that there was no clearly established right and therefore qualified immunity applied so i think that the court can reach the ultimate decision that qualified immunity does apply without getting to the first prong of whether or not the due process right was actually violated and the court actually when you look at the dissent in that case and we look at judge rice's opinion which was initially appeal there  difference of opinion as to whether or not we agreed with you that the law that we hadn't clearly decided that there was no violation want to explain to me why you think that was a violation i think the violation comes in and that we know that a public employee has a as a liberty interest in his continued employment and when you publicly publish stigmatise information then your liberty interest in i e a name clearing hearing kicks in and in this case there was a february twenty second meeting with the hospital administr o but there was no decision yet that had been made as to whether or not he would be terminated and more importantly my client was not given the actual levels of the urine sample and that's important because the levels dictate how much you've ingested how much time has passed whether their abusive levels whether their therapeutic levels pursuant to his prescription and so the case law says you need to have a meaningful notice an opportunity to be heard well i would suggest it cannot be a meaningful opportunity to be heard if you're fighting in the dark as to what you're what you're arguing against he didn't have the levels he didn't have any of the evidence that the hospital was relying upon and so it's really disingenuous to say that's a meaningful opportunity to be heard when he doesn't have a real opportunity to respond to anything that's going on because he doesn't have the quote the quantitative levels and that's really the crux of this once we've got the quantitative levels our experts are toxicolog everyone says oh yeah those are therapeutic levels those are in accordance with your prescription dr mcgee himself even said in hindsight looking at this those are therapeutic levels so once he had that key piece of information then it becomes a meaningful opportunity but without that i would suggest it's not a meaningful opportunity and that was the only opportunity that he had and you only you just have to show a violation of due process to show this you have to show which your policy well that goes into whether or not mr craig is a policymaker and so on and so forth i think that and the case law supports this that you can have a single isolated incident you can have a very single isolated incident jantina no you had a case recently came over says county of volusia where you had a police officer handcuffing incident and that was a single isolated incident that can rise to the level of lack of training and deliberate it a deliberate indifference i think that's what we have here  garfield handbook does not identify by name or otherwise any name clearing pre term a nation hearing at all and so i do think that there is a complete lack of training on behalf of the hospital and its staff with regards to this issue and you're suggesting that the lack of training you allege is sufficient without any pattern of behavior to suggest that deliberate and this indifference yes i am your honor because this this one is the best case or i think the best case is really the i mean when i say i looked at your i looked at your situation and i said to myself they're saying that there's paid a year they got one one behavior at all as all it's play i'd and then general if i'm going to find deliberate indifference it's got to be a behavior a pattern of behavior and you're suggesting one problem that you're alleging is wrong no prior behavior equals deliberate indifference yes and i am under the good morning your honour's i'm susan trotman i rest represent garfield county public hospital district the respondent and the cross appeal brought by mr king the question under the law of the case doctrine is whether a prior panel of this court addressed the first prong of the qualified immunity test did it decide as judge smith suggests that mr king received a constitutionally sufficient hearing in relation to the drug test and his terminations i began where judge smith began with the factual description that's provided by the panel and then point to the last sentence in that paragraph it's the first paragraph on page three of the memorandum the last sentence reads various arguments that plaintiff was not provided sufficient process are not persuasive that's a double negative it means that king was mr king was provided sufficient process because there can be no i mean if so you mean a simple liability under section one thousand nine hundred three unless there's a constitutional violation that should be the end of it mr king tries to escape the obvious import of that sentence by arguing that it's dec that it's not picked up the prior panel addressed both prongs of the qualified immunity out analysis the opinion was joined by a majority mr king can't escape the conclusions reached by the majority simply because the panel could have decided the qualified immunity question on the second prong it could have but it didn't chose to address both that there are that sentence in that that but the whole question really is is it the door is it not because if it isn't you win if it is and what if it is  i was still argue that the memorandum in total addresses the second prong because it's not just that one sentence but if you're saying the whole first prong conclusion is dicta then the second argument that the hospital presents is there still no municipal liability because there is no you know simple policy you can assume that there's a constitutional violation the hospital still is entitled to summary judgment because there is no evidence of policy the two arguments made by mr king in that regard are number one mr craig it was a policy maker he clearly wasn't you start with interesting point nowhere in the district court argument was it suggested by mr king that the board had any they didn't raise the ratification theri he didn't argue that the board  knew about approved or ratified the terminations of mr king so number one that argument is not properly before this court but to answer your question there's no evidence in fact the evidence is to the contrary the board didn't know about mister king's terminations in advance did not approve the terminations it couldn't have ratified the terminations so the board is the policy maker but they're completely divorced from this whole scenario but mr galloway proceeds then to talk about training do you answer is  argument the argument more generally is that there was a policy of and in action or omission and the two missions pointed to are the lack of training and the lack of a written policy with respect to training the only thing mr king points to is the testimony of the three individual administrators who all said they didn't know what a name clearing hearing w that personal ignorance of a legal term does not show institutional deliberate indifference it doesn't go to the question of training at all it just shows that these three individuals did not know the meaning of that particular term the facts and in fact the facts show that the hospital did provide an opportunity to be heard its employees understood that employees have a right to be heard and the grievance policy that set out in the employee handbook specifically says that an employee has a right to it peel and satisfactory c e o decision to the board that didn't happen in this case so i think i'm getting off from your training question but you you addressed a question he did not address so i'm getting to the training ok he says failure train in this instance is deliberate indifference and he needs no pattern of behavior and that how is the best case for  him i think my response focuses more on what the deliberate and different standard really means it's a very strict standard and ordinarily yes there has to be some sort of so that the employee employer is on notice of the potential of constitutional violations and in this case there's absolutely no evidence of a pattern or even a single prior due process violation because the case says that the employee or the plaintiff must show that the employer was on act actual or constructive notice of the potential for constitutional violations it's not simply the first the easiest way to do that if the show it's happened before therefore you should have known and your should have fixed it that's not present in this case so the question is is there some sort of constructive notice that arises that the hospital should have known that this might happen and the answer to that is no because the situation involving mr king was extremely unique there's no way the hospital could have known and anticipated and prevented a certified m r o from negligence a neg negligently certifying a drug test result that's that's the problem with this hearing according to mr king and i mean there's just it's not like for example an excessive force case where there that might be something that the the police department would anticipate we couldn't anticipate the situation well there's no record there's notice me there's no evidence in the record that you could have anticipated that it there's no evidence in the record and just i guess as a matter of common sense there's there's there's no way to anticipate someone else's negligence and and prevent it  in conclusion that this court should affirm the district court's decision granting summary judgment to my client for two reasons the first is the law of the case doctrine and the second is the absence  simple policy thank you i'll be brief and i ran over time is of the essence just quickly that i think we're really back here to was there a constitutional violation and here there clearly was because you can't have a meaningful notice an opportunity to be heard if you don't have the quantitative levels which as soon as we got those quantitative levels it was shown the negligence which would have undon policy what would he have thought what would he have done at that second hearing well at that point he had been at that point he had been terminated and so he had the quantitative levels and so we know what he would have done as he would have had the quantitative levels and he would counsel for the argument cases submitted