United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendant Michelle
Reulet's Motion to Exclude or Limit the Government Expert
Testimony and Evidence (Doc. 905). The government responded
(Doc. 909). Ms. Reulet has since pleaded guilty and is no
longer pursuing this issue. But her two co-defendants, Terrie
Adams and Craig Broombaugh, have joined her motion (Doc. 930)
and those two defendants have standing to pursue Ms.
Reulet's Motion. For reasons explained below, the court
denies defendants' Motion.
Motion asks the court to exclude or limit testimony of two of
the government's expert witness: Dr. Daniel Willenbring
and Dr. Jordan Trecki. The court already has overruled a
challenge to Dr. Willenbring's testimony in its earlier
Rule 702 Order addressing the government's experts. Doc.
546 at 22-23. And the court did not find anything new in
defendants' current motion to warrant “a second
swing at excluding this witness's opinions.” Doc.
941 at 3. But, for Dr. Trecki, the court determined that
defendants' Motion previewed issues implicating the
court's gatekeeping obligations. Specifically,
“Chief Judge Armijo's order in United States v.
Stockton raise[d] meaningful concerns about several
aspects of Dr. Trecki's opinions.” Id. at
2. And, the Stockton Order was not available when
the court issued its earlier Rule 702 Order. So, consistent
with its Rule 702 obligations, the court directed the
government to have Dr. Trecki appear for a pretrial
evidentiary hearing where: (a) he could address whether any
of the concerns raised in the Stockton order apply
here; and (b) submit to adverse questioning by defense
counsel. The court limited defendants' questioning
strictly to Rule 702's foundational requirements. The
court conducted this hearing on February 3, 2017.
hearing, Dr. Trecki testified about the methodology he had
used to render opinions as a pharmacologist for the DEA. At
trial, the government will rely on Dr. Trecki's
testimony, in part, to prove that the substances listed in
the Indictment are controlled substance analogues
(“CSA”). A CSA is a substance:
(i) the chemical structure of which is substantially similar
to the chemical structure of a controlled substance in
schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic
effect on the central nervous system that is substantially
similar to or greater than the stimulant, depressant, or
hallucinogenic effect on the central nervous system of a
controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person
represents or intends to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system that is
substantially similar to or greater than the stimulant,
depressant, or hallucinogenic effect on the central nervous
system of a controlled substance in schedule I or II.
21 U.S.C. § 802(32)(A). Specifically, Dr. Trecki will
testify about prong ii, the “effects” provision.
This prong turns on any stimulant, depressant, or
hallucinogenic effect of a substance on the central nervous
system and whether any such effect is substantially similar
to or greater than the stimulant, depressant, or
hallucinogenic effect of a controlled substance. Dr.
Trecki's testimony at the hearing focused on the
methodology he used to form his opinions about the substances
identified in the Indictment in this case.
Trecki testified that when the DEA identifies a new substance
needing to be tested, his first step is collecting research
and literature about the substance. Dr. Trecki searches many
sources, including the internet, existing patents about the
substance, published and unpublished articles about the
substance, and resources for the substance available at the
National Institute on Drug Abuse.
Dr. Trecki studies the Structure-Activity-Relationship (SAR)
of the substance. This test studies the substance's
molecular structure. Dr. Trecki testified that the SAR is a
predictive test. In other words, after studying the SAR tests
of the substance and comparing it to the SAR of a scheduled
substance, he can opine what effect-stimulant, depressant, or
hallucinogenic-the substance likely will have. Dr. Trecki
testified that the SAR studies have been found reliable and
that they are widely accepted in the pharmacological
community as a means to predict a substance's effect.
next step of Dr. Trecki's methodology uses in
vitro binding tests and in vitro functional
tests on the substance. The phrase “in vitro,
” Latin for “in glass, ” means that these
tests are conducted in a petri dish. The in vitro
binding tests determine the affinity or attraction of the
substance to bind to particular brain receptors. The in
vitro functional tests determine, on a molecular level,
whether the substance will affect the brain or block an
effect on the brain. In scientific terms, this test
determines whether the substance acts as an agonist or an
antagonist. After in vitro testing, Dr. Tecki
testified that he can opine what effect- stimulant,
depressant, or hallucinogenic-the substance likely will have.
Dr. Trecki testified that this type of testing is widely
accepted in the pharmacological community for predicting a
next step of Dr. Trecki's methodology uses in
vivo, or “in life” testing. Dr. Trecki
testified that these tests are conducted on rodents. He
testified that he studies two different kinds of
tests-“in vivo locomotor” tests and
“in vivo drug discrimination” tests.
Locomotor tests use infrared beams to measure whether a
substance has had a stimulant or depressant effect on the
rodents. Drug discrimination tests involve giving rodents the
substance and determining if rodents can differentiate
between it and a controlled substance. Dr. Trecki testified
that in vivo testing permits him to opine about the
effect a substance will have. Dr. Trecki testified that this
testing has been found reliable and is widely accepted in the
pharmacological community for determining a substance's
Dr. Trecki's uses case reports to compare the effect of
substances to controlled substances. Dr. Trecki testified
that this testing has been found reliable and is widely
accepted in the ...