IN THE MATTER OF R.J DEPARTMENT OF CORRECTIONS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1334-08T3

IN THE MATTER OF R.J.,

DEPARTMENT OF CORRECTIONS.

________________________________

April 13, 2011

Argued October 14, 2010 Decided

Before Judges Fisher, Simonelli and Fasciale.

On appeal from the State of New Jersey Civil Service Commission, CSC Docket No. 2009-273.

Betty M. Ng, Deputy Attorney General, argued the cause for appellant New Jersey Department of Corrections (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ng, on the brief).

Stuart Ball argued the cause for respondent R.J. (Stuart Ball, L.L.C., attorneys; Mr. Ball and Charles I. Auffant, on the brief).

PER CURIAM

This appeal involves the removal of respondent R.J. from his employment as a corrections sergeant with appellant New Jersey Department of Corrections (DOC) based on a random drug screen, which resulted in a positive test for cocaine. In a January 17, 2008 decision, the Merit System Board (MSB), now known as the Civil Service Commission (Commission),1 adopted the initial decision of an administrative law judge (ALJ) reversing R.J.'s removal and reinstating him with back pay and other benefits. In a September 25, 2008 decision, the Commission denied the DOC's request for reconsideration. We conclude the decisions are not supported by sufficient, credible evidence in the record and are arbitrary, capricious and unreasonable. We, therefore, reverse.

R.J. began his career as a corrections officer in 1988. In 2003, he became ill and was subsequently diagnosed with HIV/AIDS. He takes a "cocktail" of medications several times each day to treat his illness. Those medications, along with his illness, negatively affect his immune system, making him susceptible to respiratory infections and bronchitis that require him to take additional medications.

On February 17, 2006, the DOC selected R.J. for a random drug screen pursuant to the Attorney General's Law Enforcement Drug Testing Policy (the Drug Testing Policy). R.J. reported to the Special Investigation Division of East Jersey State Prison for testing. A senior investigator gave R.J. the necessary paperwork to complete prior to the drug test, including the DOC Drug Screening Program Monitor booklet. As required, R.J. wrote his social security number and name on the top of the booklet and signed the Drug Testing Employee Notice and Acknowledgment form. He also completed a medical questionnaire, which required him to list all medications he had ingested within the last thirty days. Due to limited space on the questionnaire, R.J. listed only three medications, but he verbally advised the senior investigator that he "had a lot of medication." The senior investigator did not recall whether he gave R.J. an extra sheet to list additional medications.

R.J. voided in two specimen collection containers and followed the proper procedure to mark and identify each. The DOC delivered one specimen to the New Jersey State Toxicology Laboratory for analysis, and stored the other in a secured freezer. According to the Drug Testing Policy, the State Toxicology Lab "constitute[s] the sole facility for the analysis of law enforcement drug tests. Law enforcement agencies are not permitted to use any other facility or laboratory for purposes of analyzing urine specimens."

Using a fluorescence polarization immunoassay analysis, the State Toxicology Lab tested R.J.'s specimen for the following substances and their metabolites: amphetamine/methamphetamine, barbiturates, benzodiazepine, cannabinoids, cocaine, methadone, phencyclidine, and opiates. R.J.'s specimen tested positive for cocaine and negative for all other substances including opiates.

The Drug Testing Policy requires that specimens testing positive for a controlled substance undergo a gas chromatography/mass spectrophotometry (GC/MS) test to confirm the presence of the controlled substance. If the GC/MS test confirms the presence of a controlled substance, a medical review officer at the State Toxicology Lab must compare the test results with the subject's medical questionnaire to determine whether any medication listed would explain the test results. If there is no such explanation, the medical review officer issues a report indicating that the specimen tested positive for a controlled substance.

The GC/MS test of R.J.'s specimen confirmed the presence of benzoylecgonine, the metabolite2 of cocaine, in an amount exceeding thirty-five times the cut-off level.3 The medical review officer issued a report confirming that the specimen tested positive for cocaine. R.J. had LabCorp., an independent State-approved laboratory, test his second specimen. This test also confirmed the presence of benzoylecgonine in R.J.'s specimen.

The DOC has a zero-tolerance policy for illegal drugs; any employee testing positive shall be terminated. As a result of R.J.'s positive test result, the DOC filed a Preliminary Notice of Disciplinary Action against R.J. seeking his removal for conduct unbecoming a public employee, that is, for the use, possession or sale of a controlled dangerous substance.

R.J. submitted a letter from his treating physician, James Greenman, M.D., who asked the DOC to conduct further testing to determine whether the medications Truvada and Kaletra, which R.J. regularly ingested, were present in the specimen. R.J. believed a mix-up in the urine specimen must have occurred, as he denied using cocaine. The DOC performed no further testing, and there is no evidence it was required to do so.

Dr. Greenman noted in a second letter that in the past, R.J. took antibiotics containing amoxicillin, Biaxin, cephaiexin and Zithromax, and cough medicines containing codeine. The doctor did not state within a reasonable degree of medical or scientific certainty, and cited no authority to support his statement that "[i]t is known that the ingredients in some of these medications can give false-positive cocaine urine tests." Further, he did not testify at the hearing before the ALJ.

After a departmental hearing on June 27, 2006, the DOC sustained the charges. It filed a Final Notice of Disciplinary Action against R.J. removing him from his position. R.J. appealed, and the matter was transferred to the Office of Administrative Law for a hearing as a contested case.

Dr. Robert Havier, head of the State Toxicology Lab, testified for the DOC as an expert in forensic toxicology. Based on his education and experience, the doctor concluded within a reasonable degree of scientific certainty that: (1) R.J.'s specimen tested positive for cocaine because R.J. ingested cocaine; (2) there is no medication or drug other than cocaine that tests positive for benzoylecgonine; (3) codeine would never test positive for cocaine because it is an opiate and the two are chemically different compounds; (4) the GC/MS test "would absolutely eliminate the possibility" of a false positive result; and (5) there is "no way" the GC/MS test could result in a false positive.

R.J. did not challenge the testing methodology, the chain of custody or procedures used in this case. Rather, over the DOC's objection, he attempted to cast doubt on the test results through the testimony of Dr. James Oleske, who is a professor of pediatrics, pathology and preventive medicine, not a toxicologist. Although the doctor's testimony was limited to the diagnosis and treatment of HIV/AIDS and drugs used to treat that condition, he testified beyond his area of expertise. For example, he had no experience whatsoever with the inter-relationship between cocaine and the medications used to treat HIV/AIDS. His only experience was with opiates; however, R.J. tested negative for opiates.

Also, Dr. Oleske admitted that: (1) the GC/MS test is the definitive test for metabolites of drugs; (2) "no one knows . . . definitively right now whether the drugs that someone who has HIV is taking could or could not cause what's considered a false positive test on the urine versus having a test that would be normally negative become positive[;]" (3) it was "possible" that the multiple prescription drugs HIV patients use can affect the outcome of screening and confirmatory tests; (4) it is unknown whether "the interactions of the multiple drugs that people are taking as they affect the body and the drugs themselves as their metabolites may cause a false positive result[;]" (5) the drugs used to treat HIV have not been tested for a metabolite of cocaine; and (6) "in patients on multiple drugs, we don't know [the effects on metabolism] because we haven't evaluated the interactions of the multiple drugs patients are on[.]"

Dr. Oleske also admitted he knew of no drugs that have been shown to metabolize into cocaine; the medications R.J. ingested are not cocaine; and he did not know if any of R.J.'s medications contain metabolites of benzoylecgonine. More importantly, the doctor admitted that "it's probably more likely 51 percent" that R.J. had ingested cocaine.

Despite his admissions and the limits of his expertise, Dr. Oleske concluded it cannot be confirmed within a reasonable degree of medical certainty based on a single urine test that R.J. had ingested cocaine. He also concluded the DOC should have conducted further confirmatory testing, including a blood test.

In her initial decision, the ALJ erroneously concluded that "[t]he real issue in this case is whether the test results were affected by [R.J.'s] disease, his body's reaction to that illness and the interaction of the cocktail of medications that he was taking." The real issue, however, was whether the DOC proved by substantial, competent and credible evidence that R.J. ingested cocaine. See N.J.A.C. 1:1-15.5(b); N.J.A.C. 10A:4-9.15(a).

Compounding this error was the ALJ's factual findings and legal conclusions based on Dr. Greenman's letters and Dr. Oleske's testimony. As for Dr. Greenman, the ALJ found his letters indicated the DOC did not conduct additional testing and "'[i]t is known that the ingredients in some of [the medications the doctor identified that R.J. had been taking] can give false-positive cocaine urine tests.'"

As for Dr. Oleske, the ALJ acknowledged, "[h]e stated several times that medical science could not confirm with a reasonable degree of medical certainty that [R.J.]'s test results were due to his ingesting cocaine, rather than as a result of one or a combination of drugs that he was taking in order to survive." She also acknowledged Dr. Oleske "is not aware of any prescription drug that would produce the metabolite of cocaine in the urine," and "[h]e emphasized that the scientific community does not yet know the [e]ffect of taking the cocktail of drugs used in treating [HIV/AIDS] on the body and its organs." Nevertheless, she found the doctor's testimony "very compelling" and concluded the DOC "failed to prove by a preponderance of the competent, relevant and credible evidence that [R.J.] was guilty as charged of ingesting cocaine."

The ALJ also found credible R.J.'s testimony that he had told the senior investigator about additional medications he did not remember or know how to spell and did not list on the medical questionnaire.4 She further found the medical review officer's review to be flawed because he did not have a complete list of R.J.'s medications. Citing no supporting authority, and contrary to the Drug Testing Policy (which only permits initial and GC/MS tests), the ALJ adopted Dr. Oleske's testimony that the DOC should have conducted additional confirmatory testing, such as a blood test.

The MSB accepted and adopted the ALJ's factual and credibility findings and legal conclusions. It, too, relied on Dr. Greenman's letters and Dr. Oleske's testimony and recommended that the DOC conduct further testing, such as a blood test, if R.J. is subjected to random drug tests following his reinstatement.

The DOC sought reconsideration based on a certification from Dr. George Jackson, a pathologist and certified forensic toxicologist, stating that none of R.J.'s medications would have interfered with the initial or GC/MS test results. The Commission declined to consider the certification as new evidence, noting, however, that it would not change the outcome because the ALJ found R.J.'s testimony denying ingestion of cocaine to be credible. This appeal followed.

On appeal, the DOC contends the decision to reinstate R.J. was arbitrary, capricious and unreasonable, and not supported by substantial, credible evidence in the record. The DOC argues the ALJ and MSB improperly relied on Dr. Oleske's speculative and scientifically unsupported net opinion about the effects of HIV/AIDS medications on urine test results, and improperly ignored the substantial, credible evidence that none of R.J.'s medications contain cocaine and R.J. had ingested cocaine.

Our role in reviewing a final administrative agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial, credible evidence in the record, or in violation of express or implicit legislative policy. Taylor, supra, 158 N.J. at 656-57. We must, therefore, determine whether the agency's findings could have reasonably "'been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Id. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). If we find sufficient, credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes, supra, 109 N.J. at 588; Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981).

If, however, our review of the record satisfies us that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Taylor, supra, 158 N.J. at 657.

Although not raised by the DOC, we first note that Dr. Greenman's letters, on which the ALJ made factual findings, were hearsay. Although hearsay evidence is admissible in a hearing before an ALJ, findings and conclusions based on such hearsay must be supported by a residuum of legally competent evidence in the record. N.J.A.C. 1:1-15.5(b), DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 85 (App. Div. 2001). As the Supreme Court stated,

a fact finding or a legal determination cannot be based upon hearsay alone. Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony. But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it.

[Weston v. State, 60 N.J. 36, 51 (1972).]

There is no residuum of legal and competent evidence in the record supporting the hearsay conclusions in Dr. Greenman's letters. Thus, it was error for the ALJ to have made factual findings based on those hearsay letters, and further error for the MSB to adopt those findings.

More importantly, the ALJ's and MSB's reliance on Dr. Oleske's testimony was clearly mistaken and erroneous. N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." See also N.J.A.C. 1:1-15.9(b). "Thus, an expert 'must possess a demonstrated professional capability to assess the scientific significance of the underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached.'" Anderson v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 72 (App. Div. 2010) (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991)).

Admissibility turns on three basic requirements:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[Hisenaj v. Kuehner, 194 N.J. 6, 15, 17 (2008).]

At issue here are the second and third requirements -- whether Dr. Oleske's testimony was sufficiently reliable in the field of scientific research to be admitted and whether he had sufficient expertise to offer the testimony.

When the scientific-reliability of an area of expertise is in dispute, reliability may be established in one of three ways: (1) "an expert in a particular field testifies that the scientific community in that field accepts as reliable the foundational bases of the expert's opinion"; (2) scientific "'literature reveals a consensus of acceptance regarding a technology[,]'" and "[s]o long as 'comparable experts [in the field] accept the soundness of the methodology, including the reasonableness of relying on [the] underlying data and information[;]'" and (3) existing judicial decisions have "announce[d] that particular evidence or testimony is generally accepted in the scientific community." Id. at 17 (citation omitted).

Dr. Oleske's testimony fails to satisfy any of these factors. There is no scientific evidence whatsoever that R.J.'s medications, either individually or in combination, could have affected the test results in any way or produced a false positive for cocaine. In this regard, it was irrelevant that the medical review officer lacked a complete list of R.J.'s medications -- there are no medications, including all of those R.J. ingested, that are known to produce a false positive for cocaine.

Dr. Oleske also lacked the special knowledge, skill, experience or training to offer an opinion in this case. "Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002). An expert's "'requisite knowledge can be based on either knowledge, training or experience.'" Ibid. (quoting Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988)). Dr. Oleske had no knowledge, skill, experience, training, or education relating to the interaction between R.J.'s medications and cocaine or its metabolites. His only experience was with opiates, for which R.J. tested negative.

Dr. Oleske's testimony constituted a net opinion, which is grounded on speculation and not facts. The net opinion rule is the corollary of N.J.R.E. 703 and forbids the admission of an expert's conclusions into evidence that are not supported by factual evidence or other data or based merely on unfounded speculation. State v. Townsend, 186 N.J. 473, 494 (2006); Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990). "[T]he net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Townsend, supra, 186 N.J. at 494 (quoting Rosenberg, supra, 352 N.J. Super. at 401).

Although the administrative rules give an ALJ latitude in admitting evidence, an expert's opinion must still be based on factual evidence. N.J.A.C. 1:1-15.9(b). A witness's expertise qualifies him or her to take facts and form opinions based on those facts, not to offer a factually unsupported opinion. Bowen v. Bowen, 96 N.J. 36, 50 (1984); see also Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (indicating that the probative weight of an expert's opinion can rise no higher than the underlying facts); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (holding that an expert's opinion "must be based on a proper factual foundation"), certif. denied, 146 N.J. 569 (1996). Moreover, there must be a scientific basis, as well, for an expert's opinion. State v. One Marlin Rifle, 319 N.J. Super. 359, 370 (App. Div. 1999). When an expert's opinion is merely a bare conclusion unsupported by factual evidence, it is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

Dr. Oleske's testimony was based solely on unfounded speculation, without any supporting scientific facts or data. The doctor had no idea how medications used to treat HIV/AIDS interact individually or in combination with each other and pointed to no studies confirming their effects on drug testing. See Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div.) (finding an impermissible net opinion where expert established no specialized knowledge and made no reference to objective or toxicological studies or publications), certif. denied, 200 N.J. 207 (2009); Nolan v. First Colony Life Ins., 345 N.J. Super. 142, 155 (App. Div. 2001) (finding impermissible net opinion when expert offered no factual predicates or explanation to support his opinion).

As a result, we conclude the ALJ's and MSB's findings based on Dr. Oleske's testimony were clearly mistaken and erroneous and the record lacks substantial, credible evidence supporting the reversal of R.J.'s removal. Rather, the substantial credible evidence in the record shows, by a preponderance, there is no drug other than cocaine that tests positive for benzoylecgonine, the GC/MS test would absolutely eliminate the possibility of a false positive result, and R.J. tested positive for cocaine because he ingested it.

R

1 Effective June 30, 2008, the Commission was reconstituted and assumed the duties of the Department of Personnel and the MSB. N.J.S.A. 11A:11-2b.

2 A metabolite results from the chemical breakdown of a drug by the body for purposes of excretion.

3 100 ng/ml is the GC/MS cut-off level for benzoylecgonine. R.J.'s urine contained 3573 ng/ml of benzoylecgonine.

4 We reject R.J.'s argument that this credibility finding alone warrants affirmance.