Opinion
No. FST FA 05 4004889 S
Memorandum Filed March 23, 2007
Evidence — Expert Testimony — Scientific Evidence — Porter Hearing Is Required Prior to the Admission of Gas Chromatography/Mass Spectrometry Test Results of the Presence of Illegal Drugs in a Human Hair Sample. Although the use of the gas chromatography/mass spectrometry test to determine the presence of illegal drugs in a single, properly-prepared human hair follicle has been sufficiently accepted in the scientific community to permit admission without a "Porter"reliability hearing, the procedures for selecting and preparing a sample for submission to GC/MS testing, and the interpretation of the results of such a test, have not been sufficiently accepted to permit admission without a Porter hearing. Therefore a Porter reliability hearing is required prior to the admission of GC/MS test results to determine the presence of illegal drugs in a hair sample.
This is the first reported case in Connecticut on the subject of hair follicle testing for drugs.
FACTS
The plaintiff, in this contested dissolution of marriage action, filed a Motion for Hearing dated February 15, 2006 addressing the issue of the scientific reliability of hair testing for drugs of abuse. On December 14, 2005 this court commenced an evidentiary hearing under State v. Porter, 241 Conn. 57, 66 (1997). After considerable expert testimony was presented and legal argument furnished, this court concluded, during the midst of the hearing, that it had enough information to perform its "gatekeeper" function. On April 6, 2006 the undersigned denied the plaintiff's Motion for Hearing in an oral decision. This court found that the first hair test was a presumptive test and required a Porter hearing. Since the second confirmatory test, the GC/MS test (Gas Chromatography/Mass Spectometry), was performed, this court found that no Porter hearing was needed on either the first or second test. This court found that the GC/MS confirmatory test is the "gold standard" and has been accepted by peer reviewed research to be scientifically reliable.
On April 20, 2006 the plaintiff filed this instant Motion for Clarification and Reconsideration. In that motion the plaintiff conceded the scientific reliability of the GC/MS test by stating: "The Plaintiff stated to the Court on December 14, 2005 she was not challenging the scientific reliability of GC/MS testing. Rather, the Plaintiff was raising as an issue that because the protocols and methodologies employed in the entire hair testing process had not been scientifically validated, general acceptance within the relevant scientific community of hair testing for drugs of abuse did not exist, thereby necessitating the need for a hearing under State v. Porter." The plaintiff further claimed in her April 20, 2006 Motion for Clarification and Reconsideration a request for this court to review, under this court's "gatekeeper" function, the following issues: "(1) the methodology for hair collection; (2) the methodology for hair sample preparation; (3) the interpretation of hair test result, specifically testing thresholds; or (4) the control of external contamination."
At the request of this court the plaintiff filed a further pleading entitled: "Plaintiffs Response to the Court Re Hearing Under State v. Porter" dated January 10, 2007. The plaintiff listed in more detail the specific "procedures, tests and protocols claimed to be at issue in an analysis of the scientific reliability of hair testing for drugs of abuse." Four numbered paragraphs were set forth, each containing sub-paragraphs, essentially restating in more detail the issues outlined above in the plaintiff's April 20, 2006 Motion for Clarification and Reconsideration.
The "Defendant's Response to the Court: Re Hearing Under State v. Porter" dated March 5, 2007 was filed. It noted the general acceptance within the scientific community of the Gas Chromotography/Mass Spectometry as a confirmatory test for the detection of drugs. The defendant's response further stated: "Any challenges to the methodology or procedures go to the weight, not to reliability or admissibility of the scientific evidence." This court has read all the submitted pleadings by counsel, read the cited cases, conducted independent research and reviewed peer reviewed articles, all in fulfillment of its "gatekeeper" function under State v. Porter on the above-stated issues independent of the GC/MS issue already resolved by the court. The plaintiff's Motion for Clarification and Reconsideration is being decided by this court without a hearing in fulfillment of this court's "gatekeeper" function.
DISCUSSION OF LAW
"At present, Connecticut nominally follows the Frye rule. . . We believe that. . . the Daubert reliability approach will provide structure and guidance to what has now been a potentially confusing and sparsely defined area of legal analysis in our state jurisprudence. . . Accordingly, we conclude that the Daubert approach should govern the admissibility of scientific evidence in Connecticut." State v. Porter, supra, 241 Conn. 66-68; State v. Kelly, 256 Conn. 23, 72-73 (2001). "Under Daubert, before proffered scientific evidence may be admitted, the trial court must determine whether the proffered evidence will `assist the trier of fact.'. . . This entails a two part inquiry: whether the reasoning or methodology underlying the scientific theory or technique in question is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. . . In other words, before it may be admitted, the trial judge must find that the proffered scientific evidence is both reliable and relevant." State v. Kelly, supra, 256 Conn. 73.
This invokes the commonly referred to "gatekeeper" function of the trial court. Certain scientific techniques are so well accepted that no State v. Porter hearing is necessary for their admissibility. Such evidence is admissible and deficiencies in the procedures or measurement techniques will then be the subject to cross-examination. Any inaccuracies or deficiencies demonstrated by the evidence will go to the weight not the admissibility of that evidence. This is essentially the defendant's claim as to the non-GC/MS issues raised by the plaintiff.
No testing of hair for drugs of abuse has been discussed by any Connecticut court. Another hair test, "the technique is so well established that it does not require a hearing under Porter or Frye we note that testimony based on the technique has been admitted in Connecticut courts for many years." State v. Reid, 254 Conn. 540, 549 (2000). (See the five cited Connecticut cases cited in State v. Reid supporting microscopic hair analysis.) "We conclude that microscopic hair analysis is not the type of evidence that we contemplated in Porter to be subject to the Daubert test. Accordingly, a hearing as to the admissibility of the evidence was not required by Porter, and the trial court properly admitted the evidence." Id., 549; State v. West, 274 Conn. 605, 627-38 (2005). (See citations from other jurisdictions at Id., 635.)
"Some scientific principles have become so well established that a threshold admissibility analysis is not necessary for admission of evidence thereunder. . . Evidence derived from principles would clearly withstand such an analysis, and thus may be admitted simply on a showing of relevance. . . Thus, we exclude from the Porter standard the very few scientific principles that are so firmly established as to have attained the status of scientific law and properly are subject to judicial notice." Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 169 (2004).
"Certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not scientific for. . . purposes of our admissibility standard for scientific evidence, either before or after Porter was decided. . . Thus, even evidence with its roots in scientific principles, which is within the comprehension of the average juror and which allows the jury to make its own conclusions based on its independent powers of observation and physical comparison, and without heavy reliance upon the testimony of expert witness, need not be considered scientific in nature for. . . purposes of evidentiary and admissibility." State v. West, supra, 274 Conn. 631; State v. Balbi, 89 Conn.App. 567, 572 (2005) (the horizontal gaze nystagmus evidence has been held to satisfy the Porter standard and no further Porter hearings are needed. See State v. Commins, 83 Conn.App. 496, 508 (2004)); State v. Perkins, 271 Conn. 218, 230 (2004) (a Porter hearing is not required for an expert to testify on alcohol's effect on one's central nervous system since these scientific principles are so well established).
DISCUSSION OF ISSUES
The plaintiffs motion raises three issues: (1) Is the collection, testing and measurement in hair follicle testing for drug abuse scientific? (2) Have such procedures been found by any jurisdiction to be so well established that no Porter/Daubert hearing need be conducted? and (3) Should this court exercise its "gatekeeper" function under Porter and require a Porter evidentiary hearing? This court discusses these three issues.
(1) Is the collection, testing and measurement in hair follicle testing for drugs of abuse scientific? Among the issues raised by the plaintiff in her January 10, 2007 Response are: the devices utilized in collecting the hair sample; the type and location of the body hair sample to be utilized for testing based on the different types of hair found on the human body; the identification and use of the solution to wash hair samples to remove contamination; the retention of the wash solution for analysis; the use of the enzyme linked immunosorbant assay (ELISA) presumptive test for hair analysis when this ELISA test has only been approved for urine analysis; the establishment of threshold values and/or cutoffs; the detection of drug or metabolic concentration.
This court concludes that the underlying issues on laboratory procedures are rooted in scientific analysis. A similar issue was ruled on in October 2006. In Prentice v. Dalco Electric, Inc., 280 Conn. 336 (2006), the trial court erred when it permitted expert testimony by a forensic engineer in a personal injury negligence case involving a falling ladder.
Similarly, we recognized in Porter that a critical postulate that underlies the Porter factors and indeed underlies the entire Porter analysis [is that] in order for the trial court, in the performance of its role as the gatekeeper for scientific evidence, properly to assess the threshold admissibility of scientific evidence, the proponent of the evidence must provide a sufficient articulation of the methodology underlying the scientific evidence. Without such an articulation, the trial court is entirely ill-equipped to determine if the scientific evidence is reliable upon consideration of the various Porter factors. Furthermore, without a clear understanding as to the methodology and its workings, the trial court also cannot properly undertake its analysis under the fit requirement of Porter, ensuring that the proffered scientific evidence, in fact, is based upon the reliable methodology articulated.
Prentice v. Dalco Electric, Inc., supra, 280 Conn. 344-45.
The expert in Prentice had to determine the amount of force required to move the ladder. This analysis required the use of physics, the accumulation of certain factual data and the completion of mathematical calculations. The expert had to know the wind speed, the weight of the ladder and the co-efficient of friction applicable to the ladder and the aluminum edge of the defendant's roof. The trial court concluded that the forensic engineer's opinion testimony did not require "a preliminary gatekeeper Porter validly assessment." "Additionally, the trial court ruled that a Porter hearing was not required because, although Strauss' testimony was rooted in scientific principles, it was not the sort of scientific evidence that would place the jury in the position of abandoning common sense and sacrificing independent judgment to the expert's assertions based on his special skill or knowledge." Id., 347. The Supreme Court reversed finding that Strauss' expert forensic testimony was "scientific evidence within the meaning of Porter, and that the trial court abused its discretion by permitting Strauss' expert opinion testimony without first assessing the validity of the methodology underlying his opinion as part of a Porter hearing." Id., 347
Indeed, an understanding of how to apply the sciences of physics and mathematics is necessary to determine the amount of force required to dislodge the defendant's ladder from the building, and whether that force could have been exerted by the prevailing winds in Meriden on the day of the accident, and the average person does not possess such an understanding. Id., 349. In light of our previous conclusion that Strauss' opinion on the effect of the wind was "scientific evidence" for the purposes of a Porter analysis, the trial court was obliged to hold a hearing and the plaintiff was obliged to explain the methodology underlying Strauss' opinion. This information was necessary to assess the scientific reliability and validity of Strauss' opinion.
Id., 352.
In the absence of such a validity assessment by the trial court in its role as gatekeeper, the jury in this case was confronted with a scientific conclusion, from an individual qualified as a scientific expert and presumably rooted in scientific principles, when in fact the opinion had no basis in science and was derived from the expert's limited experience with the particular factual situation at issue. The trial court's failure to characterize Strauss' testimony as scientific evidence and to carry out its role as a gatekeeper by conducting a Porter hearing, constituted an abuse of its discretion.
Id., 356.
The Supreme Court concluded Prentice by discussing methodology.
Under Porter, however, it is the methodology itself that is subject to a validity assessment. See Maher v. Quest Diagnostics, Inc., supra, 269 Conn. 179. Accordingly, if the stated methodology, apart from its foundational physical laws, is not accessible to the jury, as was the case here, the trial court is required to conduct a validity assessment pursuant to Porter.
Id., 357-58.
In particular, as we stated in Maher v. Quest Diagnostics, Inc., supra, 269 Conn. 181, the "critical postulate" underlying the entire Porter analysis is that "the proponent of the evidence must provide a sufficient articulation of the methodology underlying the scientific evidence. Without such an articulation, the trial court is entirely ill-equipped to determine if the scientific evidence is reliable [and] also cannot properly undertake its analysis under the fit requirement. . . ensuring that the proffered scientific evidence, in fact, is based upon the reliable methodology articulated."
Id., 351, fn. 12.
We note that in this case, Strauss did not state a methodology for his opinion, other than his experience as a professional engineer, which made it impossible for the trial court to evaluate whether the methodology was reliable and whether the expert opinion was in fact, derived from and based upon that methodology. . .
Id., 357, fn. 17.
It is the methodology of the hair follicle testing that the plaintiff is claiming is scientific. This court agrees with the plaintiff.
(2) Have such procedures been found by any jurisdiction to be so well established that no Porter/Daubert hearing need be conducted? No such case has been cited in any of the memoranda on file. This court's independent research has not been able to locate such authority. The answer to this question must be: No.
(3) Should this court exercise its "gatekeeper" function under Porter and require a Porter evidentiary hearing on the issues raised by the plaintiff in its above-mentioned pleadings?
In order to answer that question, this court again reviewed the documents presented to this court by counsel as well as answers provided by the scientific community. If peer review articles demonstrate some problems with the collection, testing and measurement procedures, a Porter hearing must be held.
This court has reviewed a number of articles published in the scientific community in regards to collection, testing and measurement procedures to test human hair samples for illegal drug use. These scientific articles support the following findings: The use of human hair samples to test for illegal drug use is of recent vintage. Most hair tests are conducted in the employment context with a majority using the radioimmunoassay testing procedures. Already found by this court to require a Porter hearing. Hair has a different growth rate depending on where located on the human body. The exact mechanism by which drugs are incorporated into hair is still subject to debate. The extent of external contaminants of hair samples from such sources as sweat, smoke, dust or vapors has not reached a consensus level. Some washing procedures have failed to remove such external contaminants. The radioimmunoassay test has been determined not to be useful for the immediate detection of drug use, nor to determine drug use in a specific day even a group of days. Governmental crime labs in the past have not performed hair analysis for drug content. One article stated that: "There are a variety of analytical methods for detecting and quantifying metabolites in hair. No specific method or combination of methods has been accepted as a benchmark or standard." There appears to be a consensus that there are five steps in the hair testing procedure: (1) collecting the hair sample; (2) washing the hair sample to eliminate external contaminants; (3) extracting drugs by dissolving the hair; (4) performing radioimmunoassay to determine the quantity of drugs present; and (5) confirming drug positive results by secondary testing; Drug and metabolite concentrations vary according to the anatomical origin of the hair tested. There is no consensus on the type wash material to be used to remove external contaminants from the hair sample. Some washing can produce a false positive for certain drug metabolites. There are no uniform procedures for the dissolution and extraction of the hair samples. Some dissolution and extraction procedures do not yield uniform results. There is a lack of standardized cutoff levels for quantifying radioimmunoassay results in hair samples. The interpretation of radioimmunoassay results remains controversial. One article stated: "While the detection of the compounds in the hair, and to some degree their quantification, is not controversial, the interpretation of the measure is." The effect of race, gender and age on hair samples is not known, variation of hair samples can be affected by cosmetics. The exact mechanism by which hair incorporates drugs has not yet been conclusively determined. There is no sure method of eliminating false positives due to external sources of contamination when interpreting the results. There are no uniform standards that the amount of the drug ingested positively correlates with the quantity of the drug detected. The effect of different hair color or the rate of absorption of drugs in an individual hair is not known. Artificial hair coloring may change the results. Passive exposure to drugs can lead to a false positive result. The method of removing hair from the body and how it affects the results remains unknown in, i.e., plucking, removing hair with the root, removing hair without the root, cutting with different tests. In 1990 the U.S. Food and Drug Administration concluded that the radioimmunoassay procedure was "an unproven procedure unsupported by the scientific literature or well-controlled studies and clinical-trials."
CONCLUSION
The court in this Memorandum of Decision discusses and resolves the three following issues raised by the plaintiff in her Motion for Clarification and Reconsideration dated April 20, 2006 and Plaintiffs Response to the Court Re Hearing under State v. Porter dated January 10, 2007:
(1) Is the collection, testing and measurement on hair follicle testing for drug of abuse scientific?
This court answers: Yes
(2) Have such procedures been found by any jurisdiction to be so well established that no Porter/Daubert hearing need be conducted?
This court answers: No
(3) Should this court examine its gatekeeper function under Porter and require a Porter evidentiary hearing?
This court answers: Yes
The case in chief is on trial in the Regional Family Trial Docket in Middletown. The trial commenced on January 8, 2007 and is scheduled through May 2007. This court already commenced a State v. Porter hearing and took evidence on December 14 and 15, 2005. Due to other Tauck matters considered by the parties and the court to be more pressing, the Porter hearing did not resume. Before the conclusion of the Porter hearing this court, under its gatekeeper function, determined that the conducting of the secondary GC/MS test, removed the need for a Porter hearing. This court rendered its oral decision on April 6, 2006.
The Plaintiff's Motion for Clarification and Reconsideration Re Denial of Motion For Hearing Under State v. Porter dated April 20, 2006 having been presented to this court, said motion is granted and the court orders that a Porter hearing be held on the issues raised therein and in the Plaintiffs Response dated January 10, 2007. This court is willing to continue the Porter hearing or to assign the Porter hearing to the RFTD trial judge. All counsel can so stipulate as to which judge should conduct this Porter hearing, subject to the approval of the RFTD trial judge. Failing that stipulation and approval by the RFTD trial judge, this matter is referred by the undersigned to the RFTD trial judge to determine which judge will conduct this Porter hearing.