BOSTON (CN) – In the first civil lawsuit arising from the Amherst drug lab scandal, the First Circuit questioned the liability a lab supervisor might owe for letting chemist Sonja Farak’s abuses go on so long.
The judges repeatedly returned to one incident in which the supervisor, James Hanchett, discovered a suspicious beaker at Farak’s workstation but concluded that another chemist must have brought her daughter to work and that the daughter had used the beaker for a science experiment.
“I’m baffled” by that, said U.S. Circuit Judge David Barron. “I just find that shocking.”
“Are children routinely allowed inside state drug labs?” asked an incredulous-sounding U.S. Circuit Judge Sandra Lynch.
The case hinges on whether Rolando Penate can show that his now-vacated drug conviction is the result of Hanchett’s deliberate indifference to his clearly established legal duty to criminal defendants.
Barron told Penate’s lawyer, Luke Ryan of Sasson Turnbull in Northampton, Massachusetts, “it’s not obvious” that such a duty existed at the time.
“And that’s a problem for you,” Barron added.
Farak had worked at the Massachusetts drug lab from 2004 until early 2013 when it was discovered that she had been stealing drug samples and performing her work almost daily while under the influence of methamphetamine, LSD, cocaine and other substances.
As a result of her misconduct, the state’s highest court eventually threw out nearly 8,000 criminal drug cases involving some 11,162 individual defendants.
Penate had spent five years, seven months and 12 days in prison after evidence from Farak’s lab led to his conviction for selling heroin. He is suing for symbolic damages of $5,712,000, claiming Hanchett took a “laissez-faire” attitude toward supervision and made virtually no effort to secure samples, check on chemists’ work, or prevent errors.
For instance, when Hanchett discovered a container of methamphetamine that had been watered down to hide how much was missing, he assumed that it had simply “degraded” and didn’t investigate further.
Though a federal judge refused to dismiss the case, the First Circuit appeared doubtful Monday that it was clearly established at the time that lab chemists and supervisors owed a duty to criminal defendants in the same way that prosecutors and police officers do. They asked Ryan repeatedly if he could cite any previous cases establishing such a duty.
“Not with that level of specificity,” he admitted.
“Well, you have to have that level of specificity,” replied U.S. Circuit Judge Bruce Selya, an 85-year-old Reagan appointee. “You can’t just approach it from 10,000 feet.”
“Our cases are nowhere near as broad as that,” added Lynch, who was appointed by President Clinton.
Ryan answered that when the facts are truly egregious, a duty can be clearly established even if there are no prior cases. “If the Department of Social Services were selling children into slavery,” he said, that would violate a legal duty even if there were no prior cases addressing the issue.
The judges were also skeptical that Hanchett’s hands-off approach amounted to deliberate indifference.
Ryan noted that Farak herself had stated that Hanchett provided “no oversight” of the lab. “But no oversight is not enough,” responded Barron, an Obama appointee.
Carelessness alone “doesn’t get you to deliberate indifference,” Lynch added.
The judges also suggested, however, that Penate might have somewhat better luck with his state-law claim for intentional infliction of emotional distress.
Assistant Attorney General Joshua Jacobson argued Monday that the state-law claim should be dismissed along with the federal civil rights claim because “it’s essentially the same claim.”
“No, it isn’t,” interrupted Selya, who said Hanchett could have violated state law even if he didn’t violate federal law.
Barron noted that the court could reject the federal claim but allow the lower court to decide whether to proceed on the state-law claim.
“You could do that,” Jacobson conceded.
The judges gave no indication when they might issue a decision.
The Amherst incident was the second major scandal in Massachusetts involving misconduct by a drug lab employee. In 2017, some 21,839 drug convictions were overturned as a result of faulty testing by chemist Annie Dookhan at the Hinton State Laboratory.
In a lawsuit resulting from that scandal, a federal judge ruled that Dookhan’s lab supervisors could be sued for negligence because they ignored reports that she was falsifying results and never investigated her techniques even though she claimed to have tested as many as five times more samples than her colleagues. That case went to trial and resulted in a defense verdict.
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