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16-P-1654 Appeals Court
COMMONWEALTH vs. LUCAS ORTIZ.
No. 16-P-1654.
Plymouth. January 8, 2018. - June 13, 2018.
Present: Blake, Neyman, & Ditkoff, JJ.
Sex Offender. Evidence, Sex offender, Expert opinion,
Scientific test. Practice, Civil, Sex offender. Witness,
Expert.
Civil action commenced in the Superior Court Department on
November 20, 2012.
The case was tried before Robert C. Cosgrove, J.
James J. Cipoletta for the defendant.
Christina L. Crowley, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. Following a Superior Court jury trial on the
Commonwealth's petition pursuant to G. L. c. 123A, § 12(b), the
defendant, Lucas Ortiz, was found to be a sexually dangerous
person (SDP) as defined by G. L. c. 123A, § 1, and was ordered
2
committed to the Massachusetts Treatment Center. On appeal, the
defendant claims that the trial judge improperly excluded the
results of a penile plethysmograph (PPG) exam conducted by his
retained expert. Concluding that the PPG was subject to
assessment for reliability under Commonwealth v. Lanigan, 419
Mass. 15, 26 (1994), and that the judge acted within his
discretion in finding that the defendant failed to show that the
absence of deviant arousal on the PPG as conducted by the
examining expert is a reliable basis for diagnosis or
predictions of future sexual dangerousness, we affirm.
Background. At the time of trial, the defendant was
thirty-nine years old. In 1992, when the defendant was
seventeen years old, he was a member of a Boy Scout troop.
During this time, he committed sexual offenses against four
younger Boy Scouts who were between the ages of eleven and
thirteen years old. During each of the offenses, the defendant
told the child that he had a son who was taken by kidnappers and
that his son's release would be facilitated by the child having
sexual intercourse with the defendant. In one of the offenses,
the defendant threatened the boy with a knife. In 1993, the
defendant committed an additional sexual offense against a
twelve year old boy using the ruse of conducting a physical exam
of the child as a condition to becoming a member of a gang.
3
As a result of these offenses, the defendant was convicted
of multiple counts of rape of a child and indecent assault and
battery on a child, and one count of assault by means of a
dangerous weapon. He was incarcerated for two years, and in
1995 he was released on probation. As a condition of his
probation, the defendant was ordered to have no unsupervised
contact with individuals under the age of eighteen.
Within six months of his release from incarceration, the
defendant befriended a fifteen year old boy. While alone in a
car with the boy, the defendant demanded that the boy perform
oral sex on him, and threatened him at knifepoint.1 The
defendant was found to have violated his probation on the
earlier offenses, and ultimately was convicted of indecent
assault and battery, assault and battery, and assault by means
of a dangerous weapon. The defendant continued to be
incarcerated through 2012, at which time the Commonwealth filed
the instant petition in anticipation of his release from
custody.
Pursuant to G. L. c. 123A, § 13(a), the defendant was
examined by two qualified examiners. Each of the examiners
prepared reports opining that the defendant was sexually
1 There was also evidence that the defendant was in the
unsupervised presence of a thirteen year old child during this
period of time.
4
dangerous pursuant to the statute and likely to reoffend
sexually. The qualified examiners each diagnosed the defendant
with pedophilia, as well as other sexual and personality
disorders relevant to his likelihood of reoffending.
The defendant was also examined by two experts retained by
him. A psychologist specializing in neuropsychology examined
the defendant and opined that he suffered from no diagnosable
mental illness. A second psychologist, Dr. Joseph Plaud, opined
that the defendant could not be diagnosed with a sexually-based
mental disorder or personality disorder.
Dr. Plaud's opinion relied in part on his examination of
the defendant using a PPG. He reported that when examined, the
defendant displayed sexual arousal to adult consensual sexual
scenarios, and did not display deviant arousal to children.
Prior to trial, the Commonwealth filed a motion to exclude
from evidence the results of the PPG test conducted by
Dr. Plaud, arguing that the test was not reliable and that,
regardless, the Commonwealth had not received timely notice of
the evidence.2 The trial judge conducted a Daubert-Lanigan
hearing midtrial.3
The defendant gave notice to the Commonwealth of the PPG
2
test and its results approximately two weeks prior to trial, and
provided Dr. Plaud's full report four days prior to trial.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
3
579 (1993); Lanigan, 419 Mass. at 26.
5
At the hearing, the defendant presented only the testimony
of Dr. Plaud. Dr. Plaud testified that the PPG is a device
designed to measure an individual's pattern of arousal in
response to different sexual stimuli. The device acts by using
a mercury and rubber band to measure changes in the tumescence
of the penis. When Dr. Plaud conducts testing, the device is
applied by the individual being tested, without his supervision.
The stimuli used in the exam are not standardized, and
Dr. Plaud testified that he had developed his own set. Although
many treatment programs use solely auditory stimuli, Dr. Plaud
uses both auditory and visual stimuli. Dr. Plaud conceded that
the test was subject to manipulation by intentional failure to
pay attention to the stimulus, but indicated that he had devised
certain measures to avoid this, such as requiring a subject to
respond to dots appearing on the screen at random intervals.
Dr. Plaud indicated that medications could affect test results
as well.
Dr. Plaud agreed that false positives and false negatives
are an issue with the PPG, and had previously written in an
article that the PPG has a false positive error rate of about
thirty-five percent. About one-third of sexual offenders show
no arousal pattern in response to the exam, and "the vast
majority of rapists" show no deviant arousal according to the
exam. Although Dr. Plaud testified that studies have correlated
6
deviant arousal as measured by the PPG with increased levels of
recidivism, he was not aware of any studies demonstrating that
lack of deviant sexual arousal was correlated with the absence
of reoffense.
Dr. Plaud testified that there are "thousands and thousands
and thousands" of studies using the PPG. During the hearing,
however, the defendant did not submit any scholarly articles in
evidence. Neither the machine itself nor photographs of it were
submitted to the court during the hearing, nor were the stimuli
Dr. Plaud used with the defendant. Dr. Plaud testified that he
administered the PPG to the defendant using fifteen stimulus
images. He was not aware of whether the defendant took any
medication that would affect the test results.
After the hearing, the judge excluded the PPG evidence,
issuing a written memorandum after the conclusion of the trial.
The defendant was permitted to call Dr. Plaud to testify without
discussing the PPG, and references to the PPG examination were
redacted from his written report.4
The defendant now argues that, in the circumstances of this
case, the Daubert-Lanigan standards are inapplicable in
considering the admissibility of the PPG evidence, and that,
4 Although Dr. Plaud ultimately testified at trial, the
portion of the transcript containing his testimony was omitted
from the record submitted to this court on appeal.
7
even if such standards applied, the PPG evidence was improperly
excluded.
Discussion. 1. Standard of review. "The judge serves as
a gatekeeper on the admission of expert opinion testimony."
Hicks's Case, 62 Mass. App. Ct. 755, 760 (2005). In making a
determination of whether expert testimony is sufficiently
reliable to be admitted before a trier of fact, a judge must
conduct "a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and
of whether that reasoning or methodology properly can be applied
to the facts in issue." Lanigan, 419 Mass. at 26, quoting from
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-
593 (1993). See Mass. G. Evid. § 104(a) (2018) ("The court must
decide any preliminary question about whether . . . evidence is
admissible").
Under Daubert-Lanigan, a judge "initially considers a
nonexclusive list of . . . factors [including] 'whether the
scientific theory or process (1) has been generally accepted in
the relevant scientific community; (2) has been, or can be,
subjected to testing; (3) has been subjected to peer review and
publication; (4) has an unacceptably high known or potential
rate of error; and (5) is governed by recognized standards.'"
Commonwealth v. Camblin, 478 Mass. 469, 475-476 (2017), quoting
8
from Commonwealth v. Powell, 450 Mass. 229, 238 (2007). See
Mass. G. Evid. § 702 (2018).
Daubert-Lanigan analysis must be flexible, and "[d]iffering
types of methodology may require judges to apply differing
evaluative criteria to determine whether scientific methodology
is reliable." Canavan's Case, 432 Mass. 304, 314 n.5 (2000). A
trial judge has "broad discretion to determine how to assess the
reliability of expert testimony." Palandjian v. Foster, 446
Mass. 100, 111 (2006). "[I]f the process or theory underlying
an expert's opinion lacks sufficient reliability or an expert
cannot provide a reliable factual basis for his conclusions, the
trial judge must exclude the opinion from reaching the trier of
fact." Commonwealth v. DiCicco, 470 Mass 720, 729 (2015),
citing Lanigan, 419 Mass. at 25-26.
"We review a judge's determination to admit or exclude
expert testimony under Daubert-Lanigan for an abuse of
discretion." DiCicco, 470 Mass. at 729. The proponent of
expert testimony, here the defendant, has the burden to
establish the reliability of the proffered testimony. Ibid.,
citing Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 n.41
(2010).
2. Automatic admissibility. Citing G. L. c. 123A,
§ 14(c), the defendant argues that the PPG evidence here at
issue should not have been subject to a Daubert-Lanigan analysis
9
in the first instance, as it was automatically admissible as a
portion of an expert report in an SDP case. We disagree.
To date, the Supreme Judicial Court has declined to
consider the reliability and admissibility of PPG testing, and
our decisional law has not yet addressed the question. See,
e.g., Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender
Registry Bd., 452 Mass. 784, 795 (2008). Because the PPG is
"not expressly made admissible by statute, nor . . . an
essential part of the qualified examiners' evaluation as set out
in the statute," evidence regarding it "must be independently
admissible." Gammell, petitioner, 86 Mass. App. Ct. 8, 15
(2014). See ibid. (PPG testing not per se admissible pursuant
to SDP statute). Thus, it "must undergo an assessment under the
standards of Daubert-Lanigan." Esteraz, petitioner, 90 Mass.
App. Ct. 330, 335 (2016). See id. at 334-335 (determination as
to admissibility at trial of actuarial tool used to estimate
probability of reoffense required Daubert-Lanigan hearing).
3. Application of Daubert-Lanigan. After a thorough
review of the record, we conclude that the judge did not abuse
his discretion in determining that the defendant failed to
establish the reliability of the PPG as used by Dr. Plaud.
First, we discern no error in the judge's finding that,
although the PPG appears to be commonly used as a tool in the
treatment of sex offenders, it is not generally accepted in the
10
clinical community for use in diagnosis. "In determining
whether experts generally accept the reliability of [scientific]
evidence, we may properly consider not only the testimony of
experts in the record before us but also articles written by
experts and the conclusions of other courts." Commonwealth v.
Kater, 388 Mass. 519, 527 (1983), citing Commonwealth v.
Vitello, 376 Mass. 426, 431 (1978).
Although Dr. Plaud conceded that opinions among experts
conflict as to the reliability of the PPG, he testified that the
test is nevertheless generally accepted and that there are
"thousands and thousands and thousands of studies utilizing the
PPG." After Dr. Plaud indicated that he could provide a
bibliography of research establishing the validity of the PPG,
the defendant asked for leave to provide it at a later time.
Although he was given permission to do so, the defendant
submitted neither the bibliography, nor any studies or other
scholarly literature.5 A judge is not required to "admit opinion
5 Among the few studies Dr. Plaud referenced by name during
the hearing was the "Hanson Bussière meta-analysis," which he
characterized as a significant study finding that the single
greatest predictor of sexual recidivism was deviant sexual
arousal, purportedly defined by the study as a sexual response
to children measured by PPG testing. The study was not
introduced by either party during the hearing, nor was this
aspect of Dr. Plaud's testimony challenged by the Commonwealth.
In future cases, parties should provide judges conducting
Daubert-Lanigan hearings with the studies principally relied
upon by their experts. To the extent that Dr. Plaud's testimony
was intended to reference Hanson & Bussière, Predicting Relapse:
11
evidence that is connected to existing data only by the ipse
dixit of the expert." Kumho Tire Co. v. Carmichael, 526 U.S.
137, 157 (1999), quoting from General Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997). Accord Canavan's Case, 432 Mass. at 315.
The defendant contends that reference made to the PPG in
the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V)
also establishes the general acceptance of the test among
clinicians. The DSM-V's description of the PPG, however, falls
short of endorsing its use for diagnosis, specifically
cautioning that the exam's "sensitivity and specificity of
diagnosis may vary from one site to another." Id. at 699. On
the whole, the DSM-V's language is not inconsistent with the
proposition that general acceptance of the test is limited to
its treatment applications.
A review of decisional law in other jurisdictions is not
to the contrary. Many courts have expressed serious concern as
to the reliability of the PPG. See, e.g., United States v.
Powers, 59 F.3d 1460, 1471 (4th Cir. 1995) (trial court did not
A Meta-Analysis of Sexual Offender Recidivism Studies, J.
Consult. & Clin. Psychol. 66(2): 348-362 (1998), it is evident
that the judge would have benefitted from comparing Dr. Plaud's
characterization of the meta-analysis with the text of the study
and would also have benefitted from viewing the 2004 update of
the meta-analysis. See Hanson & Morton-Bourgon, Predictors of
Sexual Recidivism: An Updated Meta-Analysis (Public Works &
Government Services Canada 2004).
12
abuse its discretion when it excluded PPG results because of the
test's failure to satisfy the "scientific validity" prong of
Daubert); Doe v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000)
(though useful in treatment, "courts are uniform in their
assertion that the results of [PPG]s are inadmissible as
evidence because there are no accepted standards for this test
in the scientific community"); United States v. Weber, 451 F.3d
552, 564-566 (9th Cir. 2006) (detailing serious concerns as to
the accuracy and reliability of PPG, while acknowledging its
potential value in treatment); Kirk v. State, 520 S.W.3d 443,
462-463 (Mo. 2017) (trial court did not abuse its discretion in
excluding PPG in sex offender civil commitment trial based on
lack of reliability and subject's ability to manipulate
results); North Carolina v. Spencer, 119 N.C. App. 662, 667-668
(1995) (trial court did not abuse its discretion in excluding
PPG based on reliability); Mitchell v. State, 420 S.W.3d 448,
452-454 (Tex. Ct. App. 2014) (endorsing the potential value of
PPG for treatment purposes, but expressing concern as to its
evidentiary reliability due to subject manipulation and lack of
uniform standards). The appellate cases cited by the defendant,
by contrast, are either largely inconclusive, see In re
Detention of Halgren, 156 Wash. 2d 795, 806 (2006) ("PPG
examination has not been accepted as, by itself, a predictor of
recidivism"), or inapplicable to our analysis based on diverging
13
State rules on the admissibility of scientific evidence. See
State v. Fullwood, 22 So. 3d 655, 656-657 (Fla. Dist. Ct. App.
2009) (declining to assess the reliability of PPG testing); In
re Commitment of Sandry, 367 Ill. App. 3d 949, 969-970, 976
(2006) (stating that "State courts that have rejected PPG
testing have done so due to problems with the test's
reliability," but allowing expert's opinion testimony as to
likelihood of recidivism, based in part on consideration of PPG
test results, as Illinois courts do not follow Daubert and their
judicial review of scientific evidence "does not include
reliability"); State v. Gallegos, 220 P.3d 136, 145 (Utah 2009)
(merely finding that, at trial on charges of enticing a minor,
defendant's pedophilia or lack thereof was relevant, without
deciding scientific validity of PPG test).
A lack of general acceptance does not end our inquiry into
reliability. The judge conducted a more generalized reliability
inquiry to determine whether the test has been shown "reliable
or valid through other means." Ready, petitioner, 63 Mass. App.
Ct. 171, 174 (2005). We find ample support in the record for
the judge's conclusion that the defendant did not establish the
reliability of the PPG using alternate methods.
At the outset, the PPG's lack of a standard set of stimuli
or agreed-upon standards for the testing creates, as the judge
found, a "major problem." For a test such as this, the stimuli
14
used are by definition intrinsic to the result produced. With
no standardized guidelines for either the content or even the
mechanism of stimulus (audio or visual), the reliability of the
procedure appears inherently dubious. See Ready, 63 Mass. App.
Ct. at 176-177 (variance in stimuli used in Abel Assessment for
Sexual Interest test studies eroded validity of the studies).
Indeed, the test has a significant error rate, according to
Dr. Plaud, with false positives above thirty-three percent, and
potential false negatives amongst "the vast majority of
rapists." See id. at 178 (judge found test's error rate of
twenty-one to thirty-two percent unacceptable).
Of similar concern is the test's vulnerability to
manipulation by the subject, who may opt to direct his thoughts
or attention elsewhere than intended by the examiner. Although
Dr. Plaud testified that he takes measures to avoid certain
types of test manipulation, the defendant did not present any
evidence suggesting that these measures have been studied, that
they have been determined to be effective, or that they are
generally accepted as effective by others in the clinical
community.
Finally, as the judge noted, the defendant did not offer
any evidence suggesting the PPG's value in proving a negative
proposition: that an absence of deviant response on the PPG is
correlated with an absence of sexual recidivism. He similarly
15
offered no evidence on the correlation between absence of
deviant response and absence of a relevant diagnosis.
Based on our review of the record before the judge, we
conclude that the judge did not abuse his discretion in
excluding the PPG examination results; it has not been
established that use of the PPG exam to show the likelihood of
sexual reoffense is generally accepted in the clinical community
or that a review of the Daubert-Lanigan factors favors admission
of evidence based on such an exam.
Judgment affirmed.