Supreme Court of Texas

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No. 21-0496

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Houston Area Safety Council, Inc. and 

Psychemedics Corporation,

Petitioners,

v.

Guillermo M. Mendez, 

Respondent

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On Petition for Review from the

Court of Appeals for the First District of Texas

═══════════════════════════════════════

JUSTICE BOYD, joined by Justice Lehrmann and Justice Devine,

dissenting.

To its credit, this Court does not take lightly a request to 

recognize a common-law duty. For the most part, at least in recent years,

we have viewed the common law as sufficiently developed to address

those circumstances in which parties owe legal duties to each other and

those in which they don’t. See, e.g., Elephant Ins. Co. v. Kenyon, 644 

S.W.3d 137, 150–51 (Tex. 2022); Pagayon v. Exxon Mobil Corp., 536 

S.W.3d 499, 507–08 (Tex. 2017). Yet we have not rejected our 

longstanding recognition that “changing social standards and increasing 
2 

complexities of human relationships in today’s society” may “justify 

imposing a duty” the common law has not previously imposed. Otis

Eng’g Corp. v. Clark, 668 S.W.2d 307, 310 (Tex. 1983). It remains true 

today that, because our society and its standards are constantly 

changing, “the common law is not frozen or stagnant, but evolving, and 

it is the duty of this court to recognize the evolution.” El Chico Corp. v.

Poole, 732 S.W.2d 306, 310 (Tex. 1987) (citing Otis Eng’g, 668 S.W.2d at 

310); see also Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 457 (Tex. 

2012) (Willett, J., concurring) (“[W]e are called upon to reevaluate 

common-law rules, giving deference to stare decisis when warranted, 

but departing when the prior rule no longer furthers the interests of 

efficiency, fairness, and legitimacy.”).

We are asked in this case whether entities an employer hires to 

collect and test an employee’s biological samples for drug-testing 

purposes owe a legal duty to the employee to act reasonably in the 

performance of those limited services. As the Court explains, we have 

not previously addressed this question.1 To ensure consistency, 

1 Ante at ___. We held in SmithKline Beecham Corp. v. Doe, 903 S.W.2d 

347 (Tex. 1995), that an independent drug-testing laboratory did not owe “a 

person tested a duty to tell that person or the employer that ingestion of certain 

substances will cause a positive test result,” id. at 348, but we expressly 

“emphasiz[ed]” in that case that we were not considering “whether a drug 

testing laboratory . . . has a duty to use reasonable care in performing tests 

and reporting the results,” id. at 355. And we held in Mission Petroleum 

Carriers, Inc. v. Solomon, 106 S.W.3d 710 (Tex. 2003), that an employer did 

not owe a “duty to an at-will employee to use reasonable care when collecting 

an employee’s urine sample for drug testing pursuant to DOT regulations,” id.

at 710, but we again emphasized that the question of whether a third-party 

entity that collects employees’ samples owes a duty of care to the employees 

was “not before [the] Court,” id. at 711.
3 

predictability, and public confidence in the law and in this Court’s role 

in its development, we cannot address the issue by relying on our own 

personal, subjective views of whether a particular party should face the 

possibility of liability in particular circumstances, or even of what the 

law “should” be. Instead, our analysis must adhere to well-established 

considerations that have long guided and constrained this Court’s role 

as guardian of the common law. 

The parties here agree we should focus on such well-established 

considerations in this case, specifically—as explained below—on (1) the 

social, economic, and political questions the proposed duty presents, and 

(2) the laws and policies not only of this State, but of other states and of 

the United States. Guillermo Mendez, who urges us to recognize the 

proposed duty, does not argue that we have previously recognized the 

duty or that the duty falls within some general negligence duty owed by 

all. The Houston Area Safety Council and Psychemedics, who oppose the 

proposed duty, do not argue that we should abandon or revisit those 

well-established considerations.2 The Court thus properly limits its 

analysis to the arguments the parties have presented. But because I 

conclude the analysis necessarily leads directly to a recognition of the 

common-law duty proposed in this case, I must respectfully dissent.

2 In the trial court, the Safety Council and Psychemedics argued that 

Mendez could not establish any of the elements of a negligence claim: duty, 

breach, causation, or damages. The trial court granted summary judgment 

only on the ground that Petitioners did not owe Mendez a legal duty. The court 

of appeals held that Petitioners did owe Mendez a duty, and it remanded the 

case to the trial court without addressing breach, causation, or damages. See

634 S.W.3d 154, 163 (Tex. App.—Houston [1st Dist.] 2021). I too would address 

only the duty question and leave it to the trial court to consider the other 

elements in the first instance on remand.
4 

A. Social, economic, and political concerns

Our precedent first requires us to “weigh the ‘social, economic, 

and political questions and their application to the facts at hand’ to 

determine whether a duty exists and what it is.” Elephant Ins., 644 

S.W.3d at 145 (quoting Humble Sand & Gravel v. Gomez, 146 S.W.3d 

170, 182 (Tex. 2004)). We do this by considering several factors—

commonly referred to as the Phillips factors3—balancing “the risk, 

foreseeability, and likelihood of injury” against the “social utility of the 

actor’s conduct, the magnitude of the burden of guarding against the 

injury, the consequences of placing the burden on the defendant,” and 

considering “whether one party would generally have superior 

knowledge of the risk or a right to control the actor who caused the 

harm.” Id. (quoting Humble Sand & Gravel, 146 S.W.3d at 182).4 In this 

case, these factors weigh heavily in favor of recognizing the duty Mendez 

proposes.

1. Risk of injury

As the Court concedes, we have previously recognized the “serious 

risk that an employee can be harmed by a false positive drug test.” Ante

at ___ (quoting Mission Petroleum, 106 S.W.3d at 714–15). Other state 

supreme courts around the country have recognized it as well. See, e.g., 

3 See Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 

1990).

4 See also Pagayon, 536 S.W.3d at 504; Nabors Drilling, U.S.A., Inc. v. 

Escoto, 288 S.W.3d 401, 410 (Tex. 2009); New Tex. Auto Auction Servs., L.P. v. 

Gomez De Hernandez, 249 S.W.3d 400, 406 (Tex. 2008); Golden Spread 

Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289–90

(Tex. 1996); Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Phillips, 801 

S.W.2d at 525. 
5 

Shaw v. Psychemedics Corp., 826 S.E.2d 281, 284 (S.C. 2019) (noting 

that the “risk is especially great in at-will [employment] states”);

Landon v. Kroll Lab’y Specialists, Inc., 999 N.E.2d 1121, 1122 (N.Y. 

2013) (noting the “profound, potentially life-altering, consequences” of 

the drug-testing company’s actions); Berry v. Nat’l Med. Servs., Inc., 257 

P.3d 287, 291 (Kan. 2011) (observing that “inaccurately reported test 

results can have dire consequences on the livelihood of individuals”); 

Duncan v. Afton, Inc., 991 P.2d 739, 745 (Wyo. 1999) (noting the testing 

company “is aware that the likely effect of a false positive result is 

significant and devastating”). Indeed, as the Court explains, Mendez 

testified that he was barred from the jobsite after his positive test 

results, and a second positive result would prevent him from working in 

his profession at all. Ante at ___.5 

The Court concludes, however, that—similar to the U.S. 

Department of Transportation regulations that applied to the truckingcompany employer in Mission Petroleum—Petitioners’ internal 

procedures and licensing and certification requirements substantially 

mitigate the risks, and even make them “essentially non-existent.” Ante

at ___ (describing Psychemedics’ chain-of-custody reviews, verification 

reviews, opportunities to explain positive results and take a second test, 

5 The Safety Council and Psychemedics contend that the positive result 

of Mendez’s first test could not have caused Mendez to lose his job at 

Turnaround Welding Services because he quickly retested negative and 

completed other requirements, and Turnaround’s decision not to reassign 

Mendez to Valero or another job site cannot be attributed to the initial positive 

test result. This argument, however, addresses the issue of whether 

Petitioners’ conduct proximately caused Mendez’s alleged damages, not 

whether they owed Mendez a legal duty.
6

and washing and testing procedures, which governmental agencies 

“have evaluated and approved”).

In the most important respects, however, Petitioners have not 

shown that their procedures provide the kinds of protections we 

considered important in Mission Petroleum. There we noted not only 

that federal DOT regulations (as opposed to the entities’ own internal 

procedures) required the types of protections the Court recites, but also 

that they grant employees the right to complain and initiate 

administrative proceedings to challenge those procedures. Mission 

Petroleum, 106 S.W.3d at 714–15. Importantly, we noted that the DOT 

regulations grant the Federal Highway Administration authority to 

investigate alleged violations, “compel compliance, assess civil 

penalties, or both,” and “fashion relief to the complainant and ‘assure 

that the complainant is not subject to harassment, intimidation, 

disciplinary action, discrimination, or financial loss’ for having filed the 

complaint.” Id. at 714 (quoting 49 C.F.R. § 386.12). These remedies, we 

concluded, sufficiently enable employees to “protect themselves from 

harm,” without merely relying on the employer to comply with its 

internal procedures. Id.

Unlike the employer in Mission Petroleum, the Safety Council and 

Psychemedics have not pointed us to any governmental or external 

regulatory scheme that provides meaningful remedies on which 

employees may rely to prevent and mitigate the harm that foreseeably 

occurs when a drug-collection or drug-testing company negligently fails 

to comply with its internal procedures or regulatory mandates. And as 

we noted in Mission Petroleum, “[w]ithout these protections, the risk of 
7 

harm resulting from a negligently conducted urinalysis test would be 

great.” Id. at 715. Because those protections do not exist for those whose 

samples are collected and tested by third parties, rather than a DOTregulated employer, this factor weighs heavily in favor of recognizing 

the proposed duty.

2. Foreseeability and likelihood of injury

The Court merely “assume[s] that there is a significant likelihood 

that Petitioners could and did foresee the injury” Mendez suffered as a 

result of his positive drug test. Ante at ___. As its subsequent discussion 

reveals, however, we need not rely on an assumption to reach that 

conclusion. The specimen-custody-and-control form and the test-results 

report confirm that the Safety Council and Psychemedics knew that 

Mendez was being tested for employment purposes, so they cannot 

dispute that they could foresee that a positive test would cause Mendez 

economic harm. Like the risk factor, the foreseeability factor, which we 

have described as the “foremost and dominant consideration,” Phillips, 

801 S.W.2d at 525 (quoting Poole, 732 S.W.2d at 311), weighs heavily in 

favor of recognizing the proposed duty.

3. Social utility of drug testing

We must next balance the substantial risk, foreseeability, and 

likelihood of injury against the social utility of the Petitioners’ services. 

See Elephant Ins., 644 S.W.3d at 145. I agree with the Court that 

“[t]here is great social utility in drug testing employees, particularly 

those engaged in occupations that present substantial dangers to 

themselves, other employees, property, and the public.” Ante at ___. But 

the value of drug testing is only as great as the accuracy and reliability 
8

of the tests’ results. As the South Carolina Supreme Court has observed, 

the “significant public interest” is “in ensuring accurate drug tests 

because countless employees are required to undergo drug testing as a 

condition of their employment.” Shaw, 826 S.E.2d at 283 (emphases 

added). Because the social utility of employee drug testing is only as 

significant as the accuracy of that testing, this factor bears little weight 

against the recognition of a duty to act reasonably to ensure such 

accuracy.

4. Burden and consequences

In addition to the social utility, we must also consider the burden 

Petitioners would bear to guard against the foreseeable injury and the 

consequences of placing that burden on them. See Elephant Ins., 644 

S.W.3d at 145. The Court concludes that the burden and consequences 

would be great because Petitioners “contend” that recognition of the 

duty “will produce a flood of frivolous and burdensome claims against 

[third-party facilities] for every employee who receives a positive test 

result,” leading them to insist on indemnity agreements with their 

customers, increase their prices, or cease drug testing altogether. Ante

at ___. 

I agree we must carefully consider such consequences and give 

them great weight when they in fact exist. But Petitioners have failed 

to provide any evidence to support these contentions. As discussed 

below, several other states have recognized the proposed duty for 

twenty-odd years, and Petitioners have not suggested that any 

significant burden or parade of horribles has in fact occurred in those 

jurisdictions. Absent such evidence, we can only assume that Petitioners 
9 

and others like them have been able to comply with the duty of “ordinary 

care” in these other states, and they have offered no argument that they 

have faced a barrage of frivolous claims in those states. 

Psychemedics, in fact, vigorously contends that Mendez’s 

proposed duty is completely unnecessary because its testing procedures 

are essentially infallible, “there are no false positives with hair testing,” 

it has “never had a false positive,” and in over nine million tests, an error 

has “never happened.” But accepting the truth of these contentions, our 

recognition of the proposed duty will impose no more than a minimal 

burden because Psychemedics will never breach the duty. Psychemedics 

expresses fear that the duty’s mere existence will produce a wave of 

frivolous and burdensome claims, but our laws provide substantial 

protections, disincentives, and remedies against such claims.

The Court also accepts Petitioners’ suggestion that recognizing 

the proposed duty would “erode the at-will employment doctrine” 

because, “[i]f third-party entities can be liable for negligently collecting 

and testing employee drug samples, then employers who themselves 

collect or test such samples will ultimately face the same liabilities.” 

Ante at ___. But we already addressed that issue in Mission Petroleum, 

refusing to recognize the duty as to employers who collect or test their 

own employees’ drug samples, in part because the duty could undermine 

Texas’s fundamental at-will-employment doctrine because the 

employee’s claim concerned “the process by which [his employer] chose 

to terminate him.” 106 S.W.3d at 715.6 Even if we were to someday 

6 Relatedly, the Court also contends that recognizing a duty in this case 

would be inconsistent with Texas law because, in the context of defamation 
10

reconsider that reasoning (which no one here argues we should), our 

decision would (or, at least, should) be the result of our careful 

consideration of the well-established fundamental principles that 

govern our analysis, not a “consequence” of our decision in this 

distinguishable case.

5. Superior knowledge of risk and right to control

Our analysis of the social, economic, and political questions also 

requires us to consider which of the parties has superior knowledge of 

the risks and a superior ability to control those whose conduct may 

create those risks. See Elephant Ins., 644 S.W.3d at 145. Undoubtedly, 

claims, “Texas law recognizes a ‘qualified privilege’ that ‘protects a former 

employer’s statements about a former employee to a prospective employer.’” 

Ante at ___ (quoting Smith v. Holley, 827 S.W.2d 433, 436 (Tex. App.—San 

Antonio 1992, writ denied)). Setting aside the Court’s conflation of legal duties 

and privileges, the privilege on which the Court relies exists to protect the freespeech rights of those who may be responsible for the “honest communication 

of misinformation,” not the free-conduct rights of those whose affirmative 

actions cause the information to be incorrect. Pioneer Concrete of Tex., Inc. v.

Allen, 858 S.W.2d 47, 50 (Tex. App.—Houston [14th Dist.] 1993, writ denied) 

(quoting Kaplan v. Goodfried, 497 S.W.2d 101, 105 (Tex. App.—Dallas 1973, 

no writ). The privilege might provide a proper analogy if Mendez were suing 

the Safety Council and Psychemedics for falsely communicating that Mendez 

had tested positive for drugs, but that of course is not Mendez’s claim. 

According to Psychemedics, Mendez in fact did test positive for drugs, but 

according to Mendez, he did so only because the Safety Council negligently 

collected his sample or Psychemedics negligently performed the test. Texas law 

has never recognized a qualified privilege to protect against negligent conduct 

in any similar circumstances. Nor does the Court’s reliance on the economicloss rule justify its reasoning in this case. See ante at ___ (citing LAN/STV v.

Martin K. Eby Constr. Co., 435 S.W.3d 234 (Tex. 2014)). The lost wages Mendez 

seeks to recover constitute losses directly resulting from injury to him 

personally, not a “standalone economic loss” that resulted from “bodily harm 

to another or from physical damage to property in which he has no proprietary 

interest.” LAN/STV, 435 S.W.3d at 238–39.
11

Petitioners have far more knowledge of the specimen-collection 

and -testing processes than the employees whose specimens are 

collected and tested, and they are in a far better position to ensure that 

they act reasonably and use ordinary care when they engage in such 

activities. See Landon, 999 N.E.2d at 1124 (“The laboratory is . . . in the 

best position to prevent false positive results.”).

The Court finds it relevant, however, that Petitioners have no 

control over how an employer responds to a positive drug test and thus 

have no control over the harm the employee suffers as a result of that 

test. See ante at ___. But this concern relates to the question of whether 

a third-party company’s negligent handling of an employee’s sample 

proximately caused the employee’s harm—an issue we do not address in 

this case. Of course, there “may be more than one proximate cause of an 

injury,” and “a defendant’s act or omission need not be the sole cause of 

an injury, as long as it is a substantial factor in bringing about the 

injury.” Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 2017). Even if 

an employer’s reaction to a false-positive drug test is a proximate cause 

of the employee’s injury, any negligent conduct by an outside entity that 

produced the false positive also proximately caused the injury. The fact 

that the outside entity’s negligence may not be the sole proximate cause 

does not weigh against recognition of a duty to protect against such 

negligence. 

The Court also suggests that entities like Petitioners lack 

knowledge or control because they have no “direct relationship with an 

employee whose samples they collect and test.” Ante at ___; see Mission 

Petroleum, 106 S.W.3d at 710–11 (noting that Texas courts had rejected 
12

a laboratory’s duty of care because “drug-testing companies have a direct 

relationship only with the employer and not the employee”). But we have 

never required any contractual or other privity as a prerequisite to a 

negligence duty, and we may recognize such a duty under the Phillips 

factors even in the absence of a previously recognized “special 

relationship.” See Golden Spread Council, 926 S.W.2d at 292. An entity 

that collects or tests a client’s employees’ drug-test samples undeniably 

has a direct relationship with the samples themselves, and the duty 

Mendez proposes derives only from that relationship. Mendez does not 

propose a duty to the employee beyond the duty to act reasonably with 

regard to the entity’s relationship with the employee’s drug-testing 

sample.

In sum, I conclude that entities like Petitioners have superior 

knowledge of the risks and control over those whose conduct may create 

such risks. This factor, along with the significant risk, foreseeability, 

and likelihood of injury, substantially outweighs the impact that 

recognition of the proposed duty would have on the social utility of drug 

testing and the burdens and consequences the duty would place on such 

entities. 

B. Decisions of other jurisdictions

When deciding whether to recognize a common-law duty we also 

“take into account not only the law and policies of this State, but the law 

of other states and the United States, and the views of respected and 

authoritative restatements and commentators.” SmithKline, 903 S.W.2d 

at 351. The Court correctly observes that some “[l]ower courts around 

the country have split over the issue of whether third-party companies 
13

owe a common-law duty to their clients’ employees to use reasonable 

care in collecting and testing their drug-testing samples.” Ante at ___. 

But it ignores the fact that the “overwhelming majority” of courts that 

have addressed the issue have recognized such a duty, reflecting an 

“overall trend” throughout our nation’s courts. See Quisenberry v. 

Compass Vision, Inc., 618 F. Supp. 2d 1223, 1228 (S.D. Cal. 2007) 

(collecting cases); see also Cooper v. Lab’y Corp. of Am. Holdings, Inc., 

150 F.3d 376, 379–80 (4th Cir. 1998) (same).

This is particularly true when we consider decisions of the state 

courts of last resort. Only five of the highest state courts have addressed 

the issue—South Carolina, New York, Kansas, Pennsylvania, and 

Wyoming—but all of them have recognized the proposed duty’s existence 

under common-law negligence principles. See Shaw, 826 S.E.2d at 282 

(holding that under South Carolina law “a drug testing laboratory that 

has a contract with an employer to conduct and evaluate drug tests 

owe[s] a duty of care to the employees who are subject to the testing so 

as to give rise to a cause of action for negligence for failure to properly 

and accurately perform the test and report the results”); Landon, 999 

N.E.2d at 1124 (holding that under New York law a testing laboratory 

owed a negligence duty to a probationer who was required to participate 

in drug testing as a condition of probation); Berry, 257 P.3d at 291 

(holding that under Kansas law companies that collected and tested 

urine samples owed a negligence duty to an employee who provided 

sample); Sharpe v. St. Luke’s Hosp., 821 A.2d 1215, 1221 (Pa. 2003) 

(holding under Pennsylvania law that a hospital that collected drugtesting samples under contract with an employer owed a negligence duty 
14

to an employee who submitted samples); Duncan, 991 P.2d at 740 

(holding that a Wyoming company hired by the employer to collect urine 

samples from employees owed a negligence duty to employees “when 

collecting, handling, and processing urine specimens for the purpose of 

performing substance abuse testing”).

As the Court notes, shortly before we issued our decision in 

SmithKline, the United States Court of Appeals for the Fifth Circuit 

held that, under Texas law, an independent laboratory did owe a “duty 

to testees to use reasonable care in conducting its tests.” Willis v. Roche 

Biomed. Lab’ys, Inc., 21 F.3d 1368, 1372 (5th Cir. 1994), opinion 

withdrawn and superseded, 61 F.3d 313 (5th Cir. 1995). In making that 

“Erie guess,” the court relied primarily on the Texas court of appeals’ 

decision in SmithKline, despite the fact that SmithKline involved a 

proposed duty to warn against ingesting poppy seeds and not a proposed 

duty to use reasonable care in conducting the tests, and (as we noted in 

our decision in SmithKline) despite the fact that we had already granted 

review of the Texas court of appeals’ decision in that case. See id. at 

1372–73. 

After we decided SmithKline, however, the Fifth Circuit panel 

withdrew its opinion and changed its holding. See Willis v. Roche 

Biomed. Lab’ys, Inc., 61 F.3d 313, 313 (5th Cir. 1995). In its new opinion, 

the panel made an Erie guess that, under Texas law, a laboratory does 

not owe a legal duty “to persons tested to perform its services with 

reasonable care.” Id. at 316. The court acknowledged our recognition in 

SmithKline that “some jurisdictions had held that a laboratory owes a 

duty to persons tested to perform its services with reasonable care,” and 
15

that we distinguished those decisions “from the failure to warn claims” 

at issue in SmithKline. Id. Nevertheless, the panel concluded that our 

opinion in SmithKline “seemed to question the soundness of the 

decisions finding such a duty,” particularly by making “unfavorable 

references” to the panel’s original decision. Id. at 316 & n.2 (emphasis 

added). Although we had emphasized in SmithKline that we were not 

addressing “whether a drug testing laboratory . . . has a duty to use 

reasonable care in performing tests and reporting the results,” 903 

S.W.2d at 355, the Fifth Circuit panel nevertheless relied on our opinion 

to conclude that, under Texas law, the laboratory owed the employee “no 

duty of reasonable care in testing his urine for drugs,” Willis, 61 F.3d at 

316. 

As a result, the Fifth Circuit and its district courts have followed 

Willis’s holding, repeating that, under Texas law, an independent 

laboratory does not have a legal duty to a person whose specimens are 

tested to exercise reasonable care when conducting those tests. See, e.g., 

Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 730 (5th Cir. 2002); 

Brownlow v. Lab’y Corp. of Am., 254 F.3d 1081, 1081 (5th Cir. 2001); 

Martinez v. DISA, Inc., 435 F. Supp. 3d 747, 753 (W.D. Tex. 2020); Hinds 

v. Baker Hughes, Inc., No. MO-06-CV-134, 2007 WL 9710941, at *3 

(W.D. Tex. Sept. 28, 2007); Frank v. Delta Airlines, Inc., No. CIV.A. 3:00-

CV-2772, 2001 WL 910386, at *2 (N.D. Tex. Aug. 3, 2001). All of these 

courts, however, simply followed Willis, which in turn relied solely on 

SmithKline, which did not address the issue; and none of them 

considered the Phillips factors or conducted any other analysis of the 

policy issues underlying their holdings.
16

Although the Court does not perceive a national “consensus” on 

the issue, ante at ___, the decisions of our sister states’ highest courts 

reflect the “changing social standards and increasing complexities of 

human relationships in today’s society” that “justify imposing” the duty 

Mendez proposes. Otis Eng’g, 668 S.W.2d at 310. And, I must 

respectfully (yet regretfully) add, they reflect a far deeper analysis of the 

issue than the cursory review this Court applies today.

Conclusion 

This Court has “consistently made changes in the common law of 

torts as the need arose in a changing society.” Poole, 732 S.W.2d at 311. 

When prevailing norms favor a change in the law, it is this Court’s duty 

to recognize the tidal shift. See Sanchez v. Schindler, 651 S.W.2d 249, 

251–52 (Tex. 1983) (stating that the Court should, “in light of present 

social realities,” reconsider policy and “act in response to the needs of a 

modern society”). In the absence of protections of substantial statutory 

or regulatory schemes, employees subject to employment-related drug 

testing have no protection against negligently produced false positives. 

Applying our well-established guiding principles, I would hold that 

third-party entities that collect and test samples submitted by those 

employees owe the employees a common-law duty to act reasonably with 

regard to their handling of the samples. Because I would affirm the court 

of appeals’ judgment and remand the case to the trial court for further 

proceedings, I respectfully dissent.

 

 Jeffrey S. Boyd

 Justice
17

OPINION FILED: June 23, 2023