Superior Court of Massachusetts, Suffolk, Business Litigation Session
(with first initial, no space for Sullivan, Dorsey, and
Walsh): Kaplan, Mitchell H., J.
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFâS
MOTION FOR SUMMARY JUDGMENT
Mitchell H. Kaplan Justice of the Superior Court
Plaintiff Psychemedics Corporation (Psychemedics) developed a
hair follicle test designed to detect illicit drug use.
Beginning in 1998, the defendant City of Boston (City) and
Psychemedics entered into a series of contracts pursuant to
which the City purchased follicle testing services from
Psychemedics for use by the Boston Police Department (BPD).
The most recent of these contracts is still in force. The
test is administered to BPD officers and recruits. Beginning
in 2001, several BPD officers who tested positive for drugs
and were terminated by the BPD challenged their termination
in appeals to the Massachusetts Civil Service Commission
(CSC) and in court. Six officers were successful before the
CSC, and its decision was affirmed by the Superior Court and
then the Appeals Court. In 2017, the City demanded
indemnification from Psychemedics for the damages awarded
these officers and the costs that the City incurred defending
their claims under a provision that appears in all of the
contracts. In response, Psychemedics filed this action
seeking a declaration that the City is not entitled to
indemnification with respect to damages or defense costs
incurred as a result of the proceedings before the CSC or in
court. The case is presently before the court on
Psychemedicsâ motion for summary judgment. For the reasons
that follow, the motion is ALLOWED .
following relevant facts are taken from the summary judgment
record, read in the light most favorable to the City.
first contract between Psychemedics and the City was executed
in December 1998. Part of the contract was entitled
"Amendment to Standard Contract." Article 7.3 of
the Amendment provided:
The Contractor [Psychemedics] shall assume the defense of and
hold the City, its officers, agents or employees, harmless
from all suits and claims against them or any of them arising
from any wrongful or negligent act or omission of
[Psychemedics], its agents or employees in any way connected
with performance under this Contract.
provision appears in all of the contracts at issue in this
Between 2001 and 2006, ten BPD officers were terminated after
the hair samples that they submitted to Psychemedics tested
positive for cocaine. They appealed their terminations to
the CSC asserting that the hair test was not based on
scientifically sound and generally accepted methodology, that
the process used to collect and test their samples was
flawed, and that therefore they were not properly terminated.
Eight of these officers eventually joined in a separate
civil-rights lawsuit against the City and the BPD, which
alleged that the test had a disparate impact on people of
color. This action was filed in the Superior Court in July
2005, but removed to federal court. See Jones et al. v.
City of Boston et al., No. 1:05-cv-11832 (Jones
first evidence of any request by the City for financial
assistance in defending these claims appears in early 2006.
The BPD, apparently orally, asked Psychemedics to share in
the out-of-pocket costs to hire outside counsel to represent
the City in Jones . Psychemedics declined to do that
but offered to provide, at no charge, the services of its
scientific personnel and in house legal staff.
Several months later, in June 2006, the Cityâs Corporate
Counsel, William F. Sinnott, sent a letter to Psychemedics
that stated in part:
Article 7.3 of the contract between the City of Boston and
Psychemedics Corporation provides that Psychemedics
"shall assume the defense of and hold the City ...
harmless from all suits and claims against [it] arising from
the wrongful or negligent act or omission of
[Psychemedics]." The conduct alleged in the Plaintiffsâ
Complaint is wrongful or negligent conduct on the part of
Psychemedics Corporation. The Cityâs request that you share
in the cost of defending this suit is a reasonable one in
light of the alternative remedy provided for in the
contract [i.e., defense/indemnification]. I hope you
will reconsider your position.
dated June 9, 2006 (emphasis added). Psychemedics again
refused to share defense costs. As to Article 7.3,
As a matter of course, plaintiffs typically allege negligence
when their drug test result demonstrates the presence of an
illegal substance. However, no reasonable interpretation of
the Article 7.3 language would sweep in any allegation of
negligence or wrongful act with respect to our drug tests ...
[The] language [of the provision] only applies to instances
in which an act or ...