Opinion
111138/02.
Decided April 12, 2006.
Charles Lim, Esq., Ellenberg Rigby, LLP, New York, NY, represented: Dr. Seymour Halpern.
Gregory J. Cannata, Esq., New York, NY. represented: Freddie Williams.
Melanie V. Sadok, Esq., Assistant Corporation Counsel New York, NY, represented: NYC Department of Health
On September 30, 2005 I directed that a framed issue hearing be held before this Court on the chain of custody of what was believed to be five blood serum samples of individuals found to be positive for Hepatitis C after testing by the New York City Department of Health ("DOH" or "the Department").
Some background here is necessary. During the year 2002, it came to the attention of the Department of Health that an unusually large number of elderly patients of the defendant, Dr. Seymour Halpern, were found to have contracted the Hepatitis B virus. This finding gave rise to a subsequent investigation by the Department in conjunction with the Center for Disease Control. Patients of Dr. Halpern were contacted and asked to submit blood samples, which were then forwarded to DOH for analysis. The blood was to be tested for 3 viruses, Hepatitis B, Hepatitis C and HIV. The latter test was conducted by a different division, and what happened to these samples is not relevant here.
Although two mailings were sent out to all 1044 patients in the defendant's database, which mailings offered free testing at the Riverside Health Center, and phone calls were made as well, ultimately only 257 patients agreed to B testing and 255 agreed to a test for C.
Of the samples tested for Hepatitis C, only seven were found to be positive. The "B" findings were more dramatic and determinative, as 37 acute cases and 4 chronic cases were identified. The final report issued by the Department on October 31, 2002 concluded that vis-a-vis the B virus, the "findings suggest that Hepatitis B was possibly transmitted by contaminated injections that included a combination of medications from multi-dose vials." The evidence to support this conclusion was then discussed. However, with regard to Hepatitis C, no such conclusions were reached because the percentage of positive findings, 7 out of 255 patients tested or 2.7%, was "consistent with the prevalence of Hepatitis C expected in the general population."
The consensus of medical opinion seems to be that the "C" virus is a more serious one than the "B" virus and can lead to death.
Freddie Williams, the plaintiff in this action and a patient of Dr. Halpern, unfortunately has been infected with both viruses and has so stated in his complaint against the defendant claiming the doctor's medical practices caused both conditions. However, the Hepatitis "C" virus can be one of several genotypes. Mr. Williams had his virus further tested and it has been identified as genotype 1A, which, according to at least one defense doctor expert in liver diseases, is the most common genotype particularly in the New York City area. The genotypes of the other positive samples are not known.
It was this information that prompted plaintiff's counsel to ask the Court to have these samples analyzed for their genotype, either by the City's lab or by release to an independent laboratory for that purpose. Before the motion was actually brought, however, there appeared to be some question as to whether these serum samples were still extant and continued to remain with the Department of Health's immunology lab. At first, when asked whether they still existed, counsel for the Department said they did not. However, in August of 2005, several months later, counsel indicated that samples had, in fact, been located, or at least 5 of the 7 had. At that time, an affidavit from Dolores Gallagher, Deputy Director of Technical Affairs for DOH, explained the circumstances of how the samples had been found.
The defendant then argued that the contrary positions of the Department as to the existence of the samples, as well as the more than 3 years that had elapsed from the time of the original testing, seriously led them to question the integrity of the samples. Counsel urged that from the scant explanation given by the Department, he believed a proper chain of custody, or how these samples had been preserved, was an issue that first had to be explored before further testing was considered.
I agreed and ordered the aforementioned hearing, which was held on four days, October 21, November 2, November 16 and December 22, 2005. The Department produced the following witnesses: Iqbal Poshni, Chief of Immunology at the Department's Public Health Laboratories; Deputy Director Dolores Gallagher; Alan Saul, a lab microbiologist in the Division of Immunology; Sharon Balter, an epidemiologist at the Department's Bureau of Communicable Disease where she is Director of Hepatitis and Waterborne Enteric Diseases; and Radish Persaud, a supervisor in the serology part of the Public Health Lab. After the conclusion of testimony, I said I wished to review it all before deciding how to proceed because I found some of it to be "contradictory or at the least confusing."
While this review was occurring, I received an affidavit from Dr. Poshni seeking to correct some of his testimony because the original, upon his reflection, was not accurate. The change was a significant one, as I noted in my interim decision of January 30, 2006.
Dr. Poshni now stated, contrary to what he had said earlier, that when he had described the cryovials that had been sent off to other labs without the names of patients and with new accession numbers on them, he had been wrong. He said he had confused those cryovials with ones sent off as part of a Hepatitis B study. As I remarked earlier, this was a change of significance for two reasons. First, both of his subordinates, Messrs Saul and Persaud, had testified that the small cryovials found did have the names of the patients as well as the original accession numbers. Second, Ms. Gallagher had testified that she had been able to confirm that the vials were the ones sought as being positive for Hepatitis C because they had the names and original accession numbers on them. Thus, while Dr. Poshni's original testimony was at odds with the testimony of other witnesses, his affidavit changed his testimony so that it would conform. Therefore, I concluded in my January 30 decision (at p. 3) that "I still felt the issue was unsettled as to the integrity of the process which of course is what chain of custody is all about."
I decided to visit the New York City Public Health Laboratory on Tuesday, February 14 with a court reporter to view the subject cryovials and accession log book myself. I advised counsel in advance what I was intending to do and that I would make a contemporaneous record of my observations on the record so that they would be able to read precisely what I had witnessed.
On February 14th, I did make such a visit, did make the anticipated observations (clad in white gown and purple gloves, since I picked up each of the now 9 cryovials in order to inspect each one closely) and did record all of my observations. I did this without stating the names listed on the vials to respect the subjects' confidentiality and then matched the names on the vials to the ones on the log book entries.
Over time, the number of vials located by the DOH increased from 5 to 7 to 9.
As pointed out by defense counsel in supplementary memos filed after the attorneys had read my observations, the most significant observations related to the appearance of the labels on the vials and certain, somewhat minor, discrepancies between the black looseleaf accession book entries that I had seen and redacted ones which had been brought into court and placed in evidence as Exhibit D.
The testimony regarding the accession book where entries of test results were placed also did not convince the Court for a variety of reasons that this book was a reliable record.
The labels, as I saw them, looked very different than the sample which had been brought into court by the Department, then represented by Persaud as an exact duplicate of the actual labels used on the vials. One label was admitted into evidence as Exhibit 2. Specifically, Exhibit 2 was a preprinted label with the words "name", "date of spec collection", "source", and "test requested" set out in black block print. What I saw and reported on the record was very different though arguably consistent with Saul's testimony that when he discovered the small vials, they had handwritten labels on them. The circumstances as to how these labels came to be was never explained. The vials had labels with no preprinting on them. The 9 labels were all similar to each other in size and color, although some had narrow red borders and some had blue ones. Exhibit 2 had no colored borders. The names and numbers that I saw were all handwritten in pen reported by Saul, in his testimony, to be his handwriting. There was no preprinted words on them as appeared on Exhibit 2. As for the looseleaf accession log book, there were several discrepancies, such as a date difference in the various columns.
All counsel were then invited to submit final argument, first the defendant, followed by plaintiff and the City, and concluded by a reply from defendant.
Discussion:
Inquiries involving chain of custody of evidence sought to be used in legal proceedings are made in order to insure that a proffered specimen has the same identity and is in the same condition as it was when first produced or seized from an individual. Buckhout v. Sansalone, 208 Misc. 491 (1955). In other words, there must be a certainty that the evidence used is truly what it is purported to be. Where that is not the case, then the entire integrity of the legal result reached is in question. This is so whether it is a criminal action [ People v. Julian, 50 AD2d 760 (First Dept, 1975)], a Family Court paternity proceeding [ Gina P. v. Stephon S., 7 AD3d 333 (1st Dept, 2004)], an administrative Article 78 proceeding [ Lewis v. New York State Racing and Wagering Board, 189 AD2d 621 (1st Dept, 1993)], or a civil personal injury tort action [Amaro v. City of New York, 40 NY2d 30 (1976)]. Also, regular and proper procedures must be followed and the proponent of the evidence must be prepared to show what happened to each specimen from the moment it was collected until the time it was proffered. Lugo v. Gaines, 83 AD2d 542 (First Dept, 1981).
After reviewing all of the testimony in this case here and the exhibits produced, as well as my own recorded observations, I cannot say that I have any certainty that the cryovials here proffered as containing Hepatitis C positive serum do actually contain serum from the designated patients or that the vials containing the serum were preserved in a regular and reliable manner. It should be noted that these collections of serum were made in the first half of 2002. The procedure was to first spin the blood to separate the serum and retain only the latter for testing. The serum then was allegedly aliquoted into smaller containers for testing and freezing. These smaller vials or cryovials were sometimes sent off to other laboratories for additional testing.
There was also testimony that the regular procedure at the lab was to preserve the vials for only 2 years unless needed for further testing. The testimony here by the three individuals actually involved in the testing and storing of the serum, Poshini, Saul, and Persaud, is replete with contradictions on the processes used and on how and who found these specimens in August of 2005 after they had been considered lost following a search in the spring, several months earlier. More than the contradictions, however, are the unanswered questions which abound. For example, why were these specimens aliquoted into cryovials and preserved, when the procedures called for their destruction after two years if they had not by then been sent out to another lab for testing? How did the cryovials find themselves in a freezer that was used by this Division and moved with them from the second to the eleventh floor and supposedly searched for but not found earlier? How was it that Saul happened to see them encrusted, presumably in more ice in August than at an earlier time, when he had supposedly searched the same freezer earlier? Or if this freezer had not been searched earlier, why not?
The account given by DOH witnesses was that the vials had been found in the course of deactivating this freezer. However, this testimony is not credible in light of the coincidence of the deactivation occurring just when the second search was ordered and undertaken. And why was Saul's handwriting on the labels, as opposed to the preprinted ones, and why does he say Persaud was with him when the vials were found when Persaud claims otherwise?
In Amaro, the Court precluded the use of a blood sample because it had been unaccounted for for over 36 hours while it was in the custody of the authorities after it had been taken from the plaintiff. In contrast, in Julian, suitcases containing marijuana and heroin were allowed to be used against a defendant charged with possession of these drugs 3 years after they had been seized in large part because the court found that the seals on the containers had not been tampered with and no other irregularities were found in the chain of custody. Yet two judges, in a sharp dissent, would have reversed the conviction because there was no explanation given as to how the suitcases had gotten to the police laboratory a second time where they were ultimately found, when they had been last seen in the property clerk's office.
The plaintiff argues in support of allowing the vials to be used for further testing that there has been no evidence that anyone actually tampered with these samples. And while that might be true here, it is not ultimately decisive ( Amaro v. City of New York). In this regard, the defendant suggests that there may have been pressure exerted on DOH employees to come up with the Hepatitis C vials to avoid embarrassment at losing them. And interestingly, the Department's position vis-a-vis the application by plaintiff to obtain and further test these vials has consistently been to oppose it on grounds of public policy, among others. Therefore, one could argue that their efforts to show a proper chain of custody is inconsistent with their opposition — hence removing a motive to find them. Then again, the employees engaged in the search may not have been privy to the Department's ultimate opposition. All of the above is speculative at best. In any event, motives to tamper one way or the other are not really relevant. What is relevant, however, is that the record in its entirety does not convince this Court that there was an unbroken chain of custody, necessary to ensure the integrity and the identity of the subject vials. Lewis v. New York State Racing and Wagering Board, 189 AD2d 621 (First Dept, 1993).
For these reasons, the motion by plaintiff for further testing of the alleged Hepatitis C positive samples is denied. This constitutes the decision and order of this Court.