New York
New York lawyers serving the public good.

DIRECT EXAMINATION
DR. JOHN P. MORGAN

I.                   Qualifications

-        positions [Professor at CUNY Medical School; Associate Professor of Medicine and Adjunct Professor of Pharmacology at Mount Sinai]

-        licensed to practice medicine in New York State

-        board certified in internal medicine

-        specialized in clinical pharmacology and toxicology for the last 24 years (1969]

-        what is clinical pharmacology?

         [study of drug and medication response]

-        what is toxicology? [study of adverse

         effects of drugs and medication]

-        INTRODUCE CURRICULUM VITAE [EXH. N]

II.                Prior Expert Testimony

-        testified as expert witness on effects of various drugs on human body? [50+ times before numerous courts and administrative bodies]

-        testified as expert with respect to the Syva Laboratories "EMIT" urinalysis system? [12+ cases is NYS; 12 cases outside NYS]

-        previously qualified as expert witness in the areas of pharmacology and/or toxicology? [Yes]

III.             Urinalysis Methods

-        describe common methods currently used in analytical drug-screening technology

-        enzyme multiplied immunoassay techniques (EMIT)

-        radioimmunoassay (RIA)

-        thin-layer chromatography (TLC)

-        gas chromatography/mass spectrometry (GC-MS)

-        any of these systems marketed as a test to be performed on-site by personnel not primarily trained as laboratory workers (only EMIT]

IV.              EMIT Method

-        when developed [for morphine in 1972]

-        describe test methodology [USE EASEL]

-        have you written on this process [Yes. 1984 article]

-        drawbacks to the EMIT method where a drug or drug metabolite which resembles or interferes with EMIT assay is present in urine?

-        distinguish screening function from reliability

-        distinguish sensitivity from reliability

-        what is a "false positive"?

-        who conducted this?

-        describe search

-        results of search?

-        Search of wife

-        results of search?

-        You were taking prescription medication:

Medication

 

Purpose

Actifed

-

treatment of chronic sinus condition

Erythromycin

250 mg 4 x Daily

-

treatment of lung inflammation and/or low-grade pneumonia

Iron pills

-

treatment of anemic

condition

Dolobid

500 mg

-

treatment of pain resulting from lung inflammation

-        taking these drugs for how long? [5 days prior to visit]

-        RAMA order to provide urine specimen

-        who was Rama?

-        did you expect request for specimen?

-        why not surprised?

-        when did Rama make this demand? [March 14, 1988]

-        what did you tell Rama [agreed to test; on 4 medications, not 3]

-        what were names [Actifed, Erythomycin, Iron pills]

-        told Rama you didn't remember name of 4th medication

-        what did Rama say [said he'd call and check]

V.                 Misbehavior Report

-        served with Inmate Misbehavior Report on March 19, 1988 [SHOW EXH. 2]

-        charged with cocaine use

VI.              March 21 Conversation With Rama

-        Saw Rama in mess hall and asked if he ever called Medical Department to get name of other medication

-        Rama said they told him only 3 that you told him

VI.       March 22, 1988 Disciplinary Hearing

-        Lt. Simmons presiding officer

-        You pled not guilty to charge of "use of controlled substance"


1/4/93

DIRECT EXAMINATION
JAMES DALE

I.                   Background

-        age?

-        education?

-        married?

II.                Criminal Convictions

-        In March 1988, inmate at Fishkill C.F. for what criminal conviction? [Burglary]

-        length of sentence?

-        when released? [May 1989]

-        Any convictions for a felony after May 1989? [petty larceny in Manhattan; attempted murder/robbery ACD' ed; Feb. 1990 burglary?]

-           Are you currently incarcerated? [work release]

-        nature of work release program

-        for what criminal conviction?

-        nature of parole violation?

III.             Past Drug Use

-        What level of illegal drug use in March 1988? [None]

-        Prior to March 1988, ever been convicted of any crime involving drug use? [No]

-        Ever been enrolled in a drug treatment program? [Yes - after release in May 1989]

-        why [involvement with alcohol, heroin, acid, cocaine, marijuana]

-        After your release in May 1989, have you ever been punished as a result of giving a urine specimen which tested "positive" for drug use? [Yes - late 1989]

-        what drug? [heroin]

-        what treatment? [8 days in Beth Israel]

IV.              March 14, 1988 Incident

-        incarcerated at Fishkill C.F.

-        any prior disciplinary hearings? [No]

-        any prior charges of drug use? [No]

-        2 day family reunion trailer visit with wife (Lolita Dale)?

-        describe trailer visit

-        did you use any illegal drugs prior to visit? [No]

-        Strip search of Dale

-        what is "cross-reactivity"?

-        explain how this occurs (USE EASEL]

-        what is a major reason for occasional failure of EMIT results to be confirmed? ["false positive" reactions may occur due to reactive presence of other chemicals that bond to a particular antibody]

-        any doubt that EMIT method's reliability is affected in presence of other substances that bond to particular antibodies? [No]

-        is there scientific literature on this? [Yes]

V.                 James Dale

-        familiar with allegations in this case?

-        previously submitted affidavit in this case

-        ask you to assume that Dale had been consuming the following prescription drugs for 4-5 days prior to time his urine was collected:

         "Dolobid"; Actifed; Erythromycin; Iron pills

-        what is "Dolobid"? [diflunisal, an anti-inflammatory analgesic]

-        in your expert opinion, what effect could diflunisal have (either alone or in combo) had on the EMIT tests of Mr. Dale's urine specimen?

-        in your expert opinion, is an unconfirmed "positive" EMIT test result for cocaine a reliable indication of cocaine use, in the presence of a drug like diflunisal? [No]

VI.              Syva Laboratories Information

-        [SHOW EXH. M ]

-        agree with statement in Section 1 [READ)? [Yes]

-        agree with statements in Section 2 [READ)?

-        agree with statements in Section 9 [READ)?

VII.           Peranzo Decisions

-        familiar with the 1987 decision of Judge Sand and 1988 affirmance of the Court of Appeals in Peranzo v. Coughlin upholding use of EMIT tests? [Yes]

-        inconsistent with your view of EMIT methodology? [No - Judge Sand recognized problem of cross-reactivity (e.g., poppy seeds) and specifically noted importance of recording inmate medications]

-        You denied cocaine use during reunion visit with your wife ("I don't use coke")

-        Told Simmons of Rama's failure to list all medications [Tr. 3-6]

-        Told Simmons that one or more (or combo) of medications may have caused false "positive"

-        Simmons did not check the Emit-st product literature to see whether Dolobid (alone or in combo) could have caused false "positive" result

-        Simmons did not ask the corrections personnel who conducted the tests whether Dolobid could cause false positive

-        What did Simmons do? [asked nurse]

VIII.        Damages

-        found guilty by Simmons at end of hearing?

-        30 days in keeplock; loss of trailer visits, phone, commissary, package and movie privileges

-        describe keeplock

-        pain and suffering; mental distress [loss of sleep and appetite; depression]

IX.              March 1988 Hearing Result Expunged

-        Results of hearing expunged in July 1988

-        New York state agreed to do this

-        subsequent hearing in July 1988?

-        result

-        Superintendent reversed this determination

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