Commonwealth v. Ortiz

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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.