City of Topeka v. Lauck

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NOT DESIGNATED FOR PUBLICATION

No. 116,316

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF TOPEKA,
Appellee,

v.

NYLA S. LAUCK,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; JEAN M. SCHMIDT, judge. Opinion filed September 22,
2017. Affirmed.

Eric Kjorlie, of Topeka, for appellant.

Charles F. Kitt, chief of prosecution, and Seth Brackman, assistant city attorney, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and POWELL, JJ.

BUSER, J.: This is an appeal of Nyla S. Lauck's conviction for driving under the
influence of alcohol (DUI). On appeal, Lauck claims the district court committed
reversible error when it excluded the testimony of her expert witness, Shawn Parcells.
Parcells was prepared to testify about the effects that Lauck's asthma had on her
breathalyzer test results obtained by officers during her DUI arrest. Having carefully
considered the district court's order in limine, the record on appeal, and the parties'
appellate briefs, we affirm the district court's ruling and Lauck's DUI conviction.


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FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Lauck was convicted in the Topeka Municipal Court of DUI and driving
the wrong way on a one-way street. She appealed her convictions and sentences to the
Shawnee County District Court.

Prior to the de novo jury trial, the City filed a motion in limine to exclude the
testimony of Lauck's expert witness, Shawn Parcells. Prior to ruling on the motion, the
district court held an evidentiary hearing in accord with Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). As
described more fully in the analysis section, Parcells testified about his expert
qualifications and expert opinions regarding how the results of the Intoxilyzer 8000
breathalyzer machine could be affected by Lauck's asthmatic condition. For its part, the
City presented its own expert regarding the operation of the Intoxilyzer 8000.

After the hearing, the district court issued a very thorough and well-documented
order in limine which concluded: "Mr. Parcells shall not be allowed to testify in regard to
Ms. Lauck's physical condition on or about July 28, 2014, nor to render any opinions
regarding the reliability or implications of testing results of an Intoxilyzer 8000." Lauck
sought reconsideration of the order, but after a hearing the district court reaffirmed its
prior ruling. The evidentiary issue was also raised by Lauck during trial to no avail.

At trial, the jury found Lauck guilty of alternative counts of DUI and driving the
wrong way on a one-way street. With regard to the DUI conviction, the district court
sentenced Lauck to 30 days in jail and assessed a $1,070 fine.

Lauck appeals.


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ANALYSIS

On appeal, Lauck contends the district court erroneously excluded Parcells from
testifying at trial that Lauck's asthmatic condition resulted in a false positive Intoxilyzer
8000 reading. The State counters that the district court's evidentiary ruling was an
appropriate use of discretion because Lauck failed to demonstrate that Parcells was
qualified to offer relevant expert testimony.

In 2014, the Kansas Legislature amended the law relating to opinion evidence,
including K.S.A. 60-456(b). These amendments effectively abrogated Kansas courts'
long-held reliance on the test for scientific evidence from Frye v. United States, 293 F.
1013 (D.C. Cir. 1923), and adopted the federal standard under Federal Rule of Evidence
702 based on the principles of the landmark opinion in Daubert.

As amended, K.S.A. 2016 Supp. 60-456(b) provides:

"If scientific, technical or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue, a witness who is qualified as an
expert by knowledge, skill, experience, training or education may testify thereto in the
form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data;
(2) the testimony is the product of reliable principles and methods; and (3) the witness
has reliably applied the principles and methods to the facts of the case."

Appellate courts review de novo whether a district court performed its gatekeeper
role and whether the court applied the proper legal standard for admitting or excluding
the expert testimony. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en
banc) (applying Federal Rule of Evidence 702). On appeal, Lauck does not allege that the
district court failed to perform its gatekeeper role or used an improper legal standard.
Indeed, the district court correctly cited to K.S.A. 2016 Supp. 60-456(b) as the
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appropriate legal standard to use in considering whether Parcells' proposed expert
testimony was admissible at trial. As a result, these matters are not before us.

The question presented is whether the exclusion of Parcells' opinion testimony was
proper under K.S.A. 2016 Supp. 60-456(b). We review this question for an abuse of
discretion. State v. Seacat, 303 Kan. 622, 641, 366 P.3d 208 (2016); United States v.
Medina-Copete, 757 F.3d 1092, 1100-01 (10th Cir. 2014). A district court abuses its
discretion if (1) no reasonable person would take the view adopted by the court; (2) the
court's decision is based on an error of law; or (3) the court's decision is based on an error
of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Both parties agree the most relevant Kansas case relying on the Daubert standard
adopted by K.S.A. 2016 Supp. 60-456(b) is Smart v. BNSF Railway Co., 52 Kan. App. 2d
486, 369 P.3d 966 (2016). Our court in Smart was the first Kansas appellate court to fully
address and interpret K.S.A. 2016 Supp. 60-456(b) as amended. In this regard, our court
relied on Federal Rule of Evidence 702 and caselaw from the Tenth Circuit Court of
Appeals because K.S.A. 2016 Supp. 60-456(b) and the federal rule share similar
language. 52 Kan. App. 2d at 494; see State v. Johnson, 19 Kan. App. 2d 315, 318, 868
P.2d 555 (1994) (finding federal authority "uniquely persuasive" where Kansas' statute is
a "mirror image" of a federal rule).

Federal Rule of Evidence 702 requires a district court to insure that the proposed
expert testimony (1) has "a reliable basis in the knowledge and experience of [the
expert's] discipline," and (2) is "relevant to the task at hand." Daubert, 509 U.S. at 592,
597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L.
Ed. 2d 238 (1999) (finding that Daubert applies to all expert testimony). Before
considering whether an expert's testimony is reliable or helpful to the trier of fact,
however, "the district court generally must first determine whether the expert is qualified
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'by knowledge, skill, experience, training, or education' to render an opinion." Nacchio,
555 F.3d at 1241; see Fed. R. Evid. 702; K.S.A. 2016 Supp. 60-456.

The district court found that Parcells was not qualified to testify as an expert at
trial regarding his opinions:

"Based upon the testimony and exhibits the Court finds that although Mr. Parcells may
qualify by 'knowledge, skill, experience, training or education' in many areas of scientific
study relating to biological sciences, and thus, could assist the trier of fact [to] understand
a fact in issue—depending on the fact in issue—but he is not qualified to render an
opinion on the precise issue ultimately to be submitted to the jury, i.e. any testing results,
information, or data derived from the use of an Intoxilyzer 8000 machine administered to
Ms. Lauck on July 28, 2014." (Emphasis added.)

In support of the district court's legal conclusion that Parcells was unqualified to
state his expert opinions in this case, the district court found:

"1) Mr. Parcells does not qualify through education, experience, or training [to
have] the ability to diagnose or treat medical conditions in live persons, and therefore, is
not qualified to testify as to whether or not the defendant suffered from any specific
physical conditions, much less, any conditions that may affect [her] ability to successfully
provide an adequate breath sample for use in an Intoxilyzer 8000.
"2) Mr. Parcells is not qualified through education, experience, training, or
known facts or data as to the degree, if any, the defendant suffered from any respiratory
conditions such as asthma . . . at the time of the arrest and execution of the Intoxilyzer
8000 test.
"3) Mr. Parcells is not qualified through certification, education, personal
experience, or training in regard to the methodology and operation of an Intoxilyzer
8000, and therefore, is not qualified to provide an opinion as to whether or not restrictive
lung capacity respiratory conditions may affect—and to what extent—the accuracy of an
Intoxilyzer 8000 testing procedure.
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"4) Mr. Parcells is not qualified through education, personal experience, training,
or known facts or data to form an opinion that an increased airway bloodflow of lung
tissue exhibited by suffer[ers] from certain lung conditions will affect the percentage of
alcohol content in exhaled air, nor that such changes if such even exist, vary from
measurable blood alcohol percentages measurable by an Intoxilyzer 8000, his opinion
being speculative and based upon hearsay material from other sources."

With particular focus on Parcells' professional credentials, the district court noted:

"Mr. Parcells has a Bachelor of Science degree from Kansas State University
qualifying him as a pathology assistant, which was accompanied by a number of
internships and supportive service positions in various coroner offices. He has a Master's
degree in anatomy and physiology from a chiropractic college. He clearly does have
knowledge, skill, training, and education as a pathology assistant and experience in a
supportive position to physician pathologists, but is not a medical doctor nor licensed to
practice medicine."

On appeal, Lauck does not dispute the district court's recitation of Parcells'
professional credentials. Rather, Lauck emphasizes the importance of Parcells' work in
forensic sciences, including the collection and interpretation of slides of lung tissue at
autopsy, and that he is "a regular contributor as a forensic consultant to the Nancy Grace
Show on HLN." As a consequence, Lauck argues that Parcells' credentials are sufficient
"where we are talking about medical causation and effects of a medical condition
resulting in a false positive concerning the test for alcohol consumption."

We disagree with Lauck's contention. As the district court evaluated Parcells'
qualifications:

"It's not whether Mr. Parcells is an expert, the question is, is he an expert as to facts and
issues that are relevant to this case. The issue in this case is not the removal and analysis
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of tissue from dead bodies or cellular biology or things which he could look at a slide and
say based on—you know, I believe that this is the cell of such and such, et cetera."

While Parcells proposed to testify that certain pulmonary conditions could artificially
inflate the results of a breath test sample, there was no showing that Parcells had the
knowledge, education, or training to analyze or interpret what effect, if any, a particular
person's lung condition has on that individual's breath alcohol content as revealed by an
Intoxilyzer 8000.

Moreover, Lauck acknowledges that Parcells had no knowledge about the nature
or extent of her asthmatic condition or had any knowledge or expertise regarding the
workings of an Intoxilyzer 8000. At the Daubert hearing, Parcells testified that he
believed Lauck had asthma based on her physician's prescriptions for medications
Parcells asserted were often prescribed for individuals with asthma. Moreover, Parcells
said he would not testify about the Intoxylizer 8000 and "trust[ed] that the Intoxylizer
was working properly." On cross-examination, the City established that Parcells was not
certified to operate the Intoxylizer 8000 or any other kind of breathalyzer machine.

Parcells' expert opinion testimony required knowledge, skill, experience, training,
or education in how Lauck's breath, when sampled by an Intoxilyzer 8000 for the
presence of alcohol, would provide an inaccurate reading simply because of her
pulmonary condition. This opinion testimony required expert qualifications in both
pulmonary medicine and the science, operation, and testing parameters of breathalyzer
machines. Parcells' qualifications were lacking in both subject areas. We are convinced
the district court did not err in finding that Parcells was not qualified to testify as an
expert on the critical issue of Lauck's breath alcohol content at the time of her DUI arrest.

Given our conclusion that Parcells was not qualified to testify as an expert in this
case, Lauck's appeal necessarily fails. For the sake of completeness, however, we will
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also review the district court's ruling that Parcells' opinions were not reliable as expert
testimony.

As noted earlier, to determine if expert testimony is reliable, both K.S.A. 2016
Supp. 60-456(b) and Federal Rule of Evidence 702 require district courts to consider
whether (1) "the testimony is based on sufficient facts or data"; (2) it is "the product of
reliable principles and methods"; and (3) "the expert has reliably applied the principles
and methods to the facts of the case." Fed. R. Evid. 702(b)-(d).

When considering the reliability of scientific testimony in particular, courts often
consider (1) whether the theory has been tested; (2) whether the theory has been subject
to peer review and publication; (3) the known potential rate of error associated with the
theory; and (4) whether the theory has attained widespread or general acceptance.
Daubert, 509 U.S. at 592-94. These factors are not a "definitive checklist or test," and a
court's inquiry regarding reliability must be "tied to the facts" of the case. Kumho Tire
Co., 526 U.S. at 150.

At the Daubert hearing, Parcells testified that "[Lauck's] body [was] giving the
[breath] machine a reading that [was] different from a healthy, normal individual,
because of her pulmonary anatomy and physiology." Parcells attributed this variance to
Lauck's asthma, and stated that "studies have shown that asthmatics do give off a higher
reading in the breath test than what they truly have in their blood alcohol content."

Although Parcells claimed to base his theory on scientific studies, he specifically
referenced only two during his testimony. The first, a study from the United Kingdom in
the Journal of Respiratory Medicine, studied a breathalyzer machine that Parcells asserted
was similar to the Intoxilyzer 8000. According to Parcells, this study showed that people
with COPD and asthma "may have difficulty in providing evidential breath samples."
The second study referenced by Parcells was by Dr. Michael Hlastala published in the
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Journal of Applied Physiology, which Parcells characterized as a "[h]eavily" peer
reviewed source. Parcells testified this article was relevant to Lauck's case because it
discussed the potential for biological factors to "raise or lower" a person's breath alcohol.

The district court questioned the studies referenced by Parcells, as well as his
methodology, writing:

"[Parcells] asserts literature in the forensic/medical/biology field indicat[ing] that
persons suffering from lung diseases may not be able to provide adequate breath samples
to satisfy the testing protocols of an infrared spectrometer. He cites a fifteen year-old
article from the United Kingdom published in the Journal of Respiratory Medicine which
concluded that persons with lung diseases 'may have difficulty in providing evidential
breath samples using the Lion Intoxilyzer 6000 UK . . . .'
"The article was admitted at hearing only for showing what information he based
his opinion on and not that of [a] learned treatise nor any other basis of the truth of the
matter asserted therein. The article's relevance, even if considered to be a learned treatise,
has limited, if any, relevance in the instant case as there is insufficient information from
which to determine the similarity of the Lion Intoxilyzer 6000 UK and the Intoxilyzer
8000 nor the similarity of definition of what is considered to be an 'evidentiary
sample.' . . .
"Mr. Parcells then notes lung diseases and/or other chronic inflammatory
conditions are characterized by increased vascularity or bloodflow to surfaces of lung
tissue. His pathology training may qualify him to identify such inflammation conditions
in tissue samples and/or to describe how such process works. However, he then makes
what appears to the Court to be a theoretical leap to a conclusion unsupported by any
testing, data, literature, learned treatise, etc., that increased vascularity of the surfaces of
the lung tissue will cause the transfer of alcohol into expelled breath in proportions higher
than that existing in the coexisting alcohol/blood ratio. That specific concept is not
addressed by any of the works he provided as exhibits. It appears to the Court to be an
opinion formed more from suspicion or speculation than the product of reliable research
or data."
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We are persuaded that the district court was correct in concluding that Parcells'
testimony was not reliable. In particular, with regard to the facts and data upon which
Parcells based his opinion, we agree with the district court that Parcells' proffered
"opinion is his own creation, unsupported by facts or data gleaned from any type of
studies he performed or reviewed."

In summary, we hold the district court did not err in excluding Parcells' testimony.
First, Parcells was not qualified as an expert by knowledge, skill, experience, training, or
education to render an opinion on the issue of Lauck's breath alcohol content at the time
of her DUI arrest. Second, Parcells' proposed opinion was unreliable because it did not
meet the three requirements of reliability provided in K.S.A. 2016 Supp. 60-456(b).

Affirmed.