📄 Cross-examination of Dr. John Gerdes (morning, part 2) — Thursday, August 3, 1995
Address:
C:\DEPT103\CRIMINAL\1995\AUG\3\CROSS-EXAMINATION-OF-DR-JOHN-G.DOC
TRIAL
▲ Day 128 of 167

Cross-examination of Dr. John Gerdes (morning, part 2)

Witness: Dr. John Gerdes
Examiner: George Clarke
Called by: Defense • Date: Thursday, August 3, 1995 • Utterances: 144
Prosecutor George Clarke cross-examines defense DNA expert Dr. John Gerdes, methodically turning Gerdes' own laboratory practices against his criticisms of LAPD. Clarke establishes that Gerdes' lab has its own error rates (including 10-15% for early HCV testing and 2-5% for PCR), that Gerdes has never personally used the DQ-Alpha kit he spent two days criticizing, and that Gerdes himself considers the Roche user guide and procedures scientifically sound.
1 DR. GERDES:

No.

2 MR. CLARKE:

Those things can, however, lead to DNA being less and less typeable? In other words, the DNA be at levels where it becomes more difficult to get an answer, if one can get an answer at all?

3 DR. GERDES:

That's correct.

4 MR. CLARKE:

Isn't it correct that the difference between medical specimens that are subjected to PCR and forensic specimens is where the sample came from?

5 DR. GERDES:

That is one difference.

6 MR. CLARKE:

That is the most important difference, isn't it?

7 DR. GERDES:

Yes.

8 MR. CLARKE:

Now, you are familiar in this case of testimony that has described that following PCR several genetic markers were typed using this dot blot technique?

9 DR. GERDES:

Yes.

10 MR. CLARKE:

And in fact you've observed the use of that technique in all approximately thirty cases you've viewed, right?

11 DR. GERDES:

Correct.

12 MR. CLARKE:

You use dot-blotting in your own laboratory, correct?

13 DR. GERDES:

The direct dot-blotting, yes. It is a little different, but the same--essentially the same.

14 MR. CLARKE:

In other words, whether direct or indirect, that is not a major difference or is that a significance difference in terms of the opinions you have offered over the last two days?

15 DR. GERDES:

I don't believe so.

16 MR. CLARKE:

That dot-blotting in your laboratory includes dot-blotting following PCR on vaginal specimens, correct?

17 DR. GERDES:

No, we don't do dot-blotting on vaginal specimens.

18 MR. CLARKE:

Have you ever done dot-blotting on vaginal specimens in your laboratory?

19 DR. GERDES:

At one time we did look for an organism, human papilloma virus using that technology, but we don't at the moment.

20 MR. CLARKE:

I hope that term is it--is it also nicknamed HPV?

21 DR. GERDES:

Yes.

22 MR. CLARKE:

Do you take photographs of the dot-blots in your laboratory?

23 DR. GERDES:

Yes. Well, it depends. I mean, basically our system at the moment, the way we run dot-blots is the detection methodology is what is called chemiluminescence and it results in basically the release of light during the reaction and so it is more light developing a photograph, so what we really keep are what would be similar to the negatives.

24 MR. CLARKE:

All right. As far as have you ever photographed dot-blots in your laboratory?

25 DR. GERDES:

We have either used autoradiography or chemiluminescence so I don't believe so.

26 MR. CLARKE:

As far as your own experience in criminal cases, that has included looking at photographs of dot-blots, correct?

27 DR. GERDES:

Yes.

28 MR. CLARKE:

Looking at a photograph isn't the same as looking at a strip live, correct?

29 DR. GERDES:

That's correct.

30 MR. CLARKE:

And in fact would it be correct to say that the analyst who sees a dot-blot strip live is in a better position to see exactly the reactions that have occurred?

31 DR. GERDES:

One of the limitations of this system is those dots fade fairly rapidly, so it is true that you can--the analyst might see something that would fade away and then when you photograph it, you would--the second--it wouldn't be present in the photo where it could have been there in the original.

32 MR. CLARKE:

Are errors made in your laboratory during testing?

33 DR. GERDES:

I think errors are a fact of life. Everyone makes errors.

KEY QUOTE
34 MR. CLARKE:

Are errors made in the diagnostic and clinical work in your laboratory?

35 DR. GERDES:

Errors are made--we do everything we can to prevent errors and I can't say that we have never made an error. They are a fact of life.

36 MR. CLARKE:

Well, some of the techniques that you use or have used in your laboratory have a certain error rate, don't they?

37 DR. GERDES:

Yes.

38 MR. CLARKE:

You have tested for HIV in your laboratory in the past, correct?

39 DR. GERDES:

Yes.

40 MR. CLARKE:

And do you currently test for HIV?

41 DR. GERDES:

Yes.

42 MR. CLARKE:

Incidentally, does HIV cause aids?

43 DR. GERDES:

I guess that is a controversial question.

44 MR. SCHECK:

Objection, your Honor, irrelevant.

45 THE COURT:

I think he testified to that yesterday. It is in the record.

46 DR. GERDES:

HIV does--HIV is--the--

47 THE COURT:

Doctor--

48 DR. GERDES:

The prominent consensus is it does cause aids.

KEY QUOTE
49 THE COURT:

Hold on, hold on. Let's move on to something else.

50 MR. CLARKE:

Very well.

51 MR. CLARKE:

As far as this HIV testing in your laboratory, have there been sort of two phrases using that HIV testing using PCR?

52 DR. GERDES:

I'm not sure what you are getting at.

53 MR. CLARKE:

Okay. As far as HIV testing, how do you conduct that testing just in terms of the technology used?

54 DR. GERDES:

At the present time for the purpose of screening donors, if that is what you are asking me, we use what is called a serological technique which is looking at antibodies as opposed to looking at DNA.

55 MR. CLARKE:

In broad terms would that be comparable, as far as the broad technology, to the serology testing conducted by the Los Angeles Police Department in this case?

56 DR. GERDES:

I guess so.

57 MR. CLARKE:

As far as that testing, did that then lead to a different form or different method of testing for HIV in your laboratory?

58 DR. GERDES:

Well, it didn't really lead to it. It is just that that particular way of looking for a virus is an indirect way of looking for the virus. It just simply says that if you are exposed to a virus, you make an antibody which is part of your recognizing that foreign organisms and responding to it and so you can look for that as a marker to indicate that perhaps you've been exposed to that virus, but it doesn't tell you really if you are--if the person is infectious, so the better way is to look directly at the nucleic acid which is the infectious part of the virus.

59 MR. CLARKE:

All right. So we can refer to one method as an indirect method and one method as a direct method?

60 DR. GERDES:

Correct.

61 MR. CLARKE:

As far as the incorrect method, what error rate did that method have, as used in your laboratory?

62 DR. GERDES:

Well, any of these are basically tests that are clinical diagnostic kits and before those are released for that purpose in any laboratory the FDA goes through validation studies that define what is known as the specificity and sensitivity of a test kit and the specificity means how specific is it to what you are looking for. That is, do you only detect aids or maybe in certain clinical situations might you get a falsification that it is positive but it really isn't aids. And as far as sensitivity, it says how many people who are infected are truly identified as being infected, so in any one of the aspects of any test, any laboratory test, is that none of them are perfect and what you need to do is identify the parameters and the guidelines that allow you to wait to determine how much weight to put on that test. So we use that kit, and the error rate that was reported for that kit, I think the original kit was probably 98 percent specific and 98 or 99 percent sensitive.

63 MR. CLARKE:

Isn't it correct that the earlier method, the indirect method, had an error rate of between ten and fifteen percent?

64 DR. GERDES:

I don't believe it was that high--

65 MR. CLARKE:

Haven't you previously testified--

66 DR. GERDES:

--for HIV.

67 MR. CLARKE:

Haven't you previously testified that the error rate for the earlier technique was between ten and fifteen percent?

68 DR. GERDES:

I believe I was talking about--I may have been talking about HCV there, not HIV.

69 MR. CLARKE:

HCV?

70 DR. GERDES:

The early kits on that had a higher false positive rate and it has to do with the fact that you are looking for a virus that is found very infrequently in the population, so it is called low incidence, and that creates a problem in terms of--of this false positive situation.

71 MR. CLARKE:

Is an error rate of ten to fifteen percent in your view acceptable?

72 DR. GERDES:

No.

73 MR. CLARKE:

Let's move to the newer form of HIV testing. That is the direct method?

74 DR. GERDES:

Yes.

75 MR. CLARKE:

Is that the term that we can use?

76 DR. GERDES:

Yes.

77 MR. CLARKE:

Does it have an error rate also?

78 DR. GERDES:

Umm, it--there is no FDA approved test for that, so there is nothing published in terms of what that rate is. I'm sure it will have an error rate.

79 MR. CLARKE:

Haven't you determined in your own lab that with regard to this second form of HIV testing that you encountered an error rate of between two and five percent?

80 DR. GERDES:

For PCR testing?

81 MR. CLARKE:

Correct.

82 DR. GERDES:

No, we haven't measured an error rate.

83 MR. CLARKE:

Have you in fact encountered an error rate of between two and five percent for any of your testing in your laboratory that you use that is techniques used in case work?

84 DR. GERDES:

I think there are--you can find blind trials, for instance, of PCR testing, where error rates for detecting viruses are--are that high perhaps.

85 MR. CLARKE:

And are these techniques that are still used in case work?

86 DR. GERDES:

They are used and what you need to know is what the error rate is. The important thing is knowing the error rate so that you can look at whatever the data is and properly evaluate how much weight to put onto it based upon what your probability of making a mistake is.

87 MR. CLARKE:

In other words, would an error rate of, let's say, one to two percent, that is a portion of what a doctor may use in counseling a patient about whether that patient has a disease or not?

88 DR. GERDES:

They take that into consideration or should that take--should take that into consideration. If a test result doesn't seem to fit with their clinical impression, they would retest.

89 (Discussion held off the record between the Deputy District Attorneys.)
90 MR. CLARKE:

All right. Dr. Gerdes, I'm going to ask to shift your attention to the DQ-Alpha marker. I think we spoke a little bit about it earlier. It is your opinion, isn't it, that there is absolutely nothing scientifically suspect about the DQ-Alpha gene?

91 DR. GERDES:

Nothing about the gene, no.

92 MR. CLARKE:

How many laboratories are tested for DQ-Alpha in forensics, to your knowledge?

93 DR. GERDES:

I'm sure there are on the order of a hundred or more.

94 MR. CLARKE:

You've actually personally. That is. Your laboratory. Looked at the DQ-Alpha marker, I believe you described that yesterday?

95 DR. GERDES:

With a direct dot-blot, yes; not with this kit.

96 MR. CLARKE:

By the other dot-blotting method?

97 DR. GERDES:

Yes.

98 MR. CLARKE:

Your laboratory does more work with this other marker closely related called DQ-beta, correct?

99 DR. GERDES:

Correct.

100 MR. CLARKE:

That is because it has more different forms than DQ-Alpha does?

101 DR. GERDES:

It is more polymorphic and it is more relevant to the reason we look for it, which is for matching in transplants.

102 MR. CLARKE:

In other words, for your purposes DQ-beta is more informative in your laboratory than DQ-Alpha because it gives you more information about what you are in particular looking for?

103 DR. GERDES:

Correct.

104 MR. CLARKE:

Your experience, as far as DQ-Alpha is concerned, comes primarily from cases that you've looked at in your role as a Defense consultant, correct?

105 DR. GERDES:

In terms of this kit, yes.

106 MR. CLARKE:

You have never used the kit, correct?

KEY QUOTE
107 DR. GERDES:

That's correct.

108 MR. CLARKE:

And I'm referring to the kit manufactured by Roche or developed by Roche, manufactured--marketed by Perkin Elmer used by all three laboratories in this case, correct?

109 DR. GERDES:

Correct.

110 MR. CLARKE:

Cellmark, Department of Justice and the LAPD?

111 DR. GERDES:

Correct.

112 MR. CLARKE:

To your knowledge is this kit being used around the world in forensic analysis?

113 DR. GERDES:

I believe it is being used in other countries.

114 MR. CLARKE:

Now, you express the fact that you are familiar with the user guide; is that right?

115 DR. GERDES:

Yes.

116 MR. CLARKE:

And is that--I think we have brought this up before. Does it look like what I have entitled "Amplitype User Guide"?

117 DR. GERDES:

That looks like the cover, yes.

118 MR. CLARKE:

Is that something that one can obtain from Perkin Elmer?

119 DR. GERDES:

Yes.

120 MR. CLARKE:

To act as a guide in conducting this test?

121 DR. GERDES:

That's correct.

122 MR. CLARKE:

In your opinion that is a good guide; isn't that your opinion?

123 DR. GERDES:

I believe there are--in general. There are certain specific areas of it that I disagree with, but in general it is a good guide.

124 MR. CLARKE:

Are there any publications, to your knowledge, scientific publications, showing that the use of the Roche kit, DQ-Alpha kit, is unreliable?

125 MR. SCHECK:

Objection, vague.

126 THE COURT:

Overruled.

127 DR. GERDES:

There are no publications that would specifically conclude that it is totally unreliable. There are numbers of publications that discuss the contamination issues and other issues we brought up.

KEY QUOTE
128 MR. CLARKE:

Do you use kits in your laboratory typing, any kits?

129 DR. GERDES:

We use clinical kits, yes.

130 MR. CLARKE:

Is the use of kits in a clinical laboratory common?

131 DR. GERDES:

It is.

132 MR. CLARKE:

Do you in fact use a kit in your own laboratory developed and manufactured by Roche?

133 DR. GERDES:

The chlymadia kit, yes.

134 MR. CLARKE:

There are, in this user guide--and actually let's talk about two things. First the user guide itself, it contains protocols on how to conduct PCR DQ-Alpha typing, correct?

135 DR. GERDES:

Yes. It is sort of the cookbook, if you will.

KEY QUOTE
136 MR. CLARKE:

There is also a second item that comes with the kit, correct, and it is a different document from this user guide?

137 DR. GERDES:

The package insert?

138 MR. CLARKE:

What is the package insert?

139 DR. GERDES:

Well, that is--it comes with the kit and it is pretty much abbreviated version of this larger user guide. It also describes more succinctly how you would set up the test.

140 MR. CLARKE:

In other words, it is also a cookbook but it is kind of directly relevant to how to do each step?

141 DR. GERDES:

Yes.

142 MR. CLARKE:

It is your opinion, is it not, that the user guide and the package insert describe correct scientific procedures for this test?

143 DR. GERDES:

The procedures for setting it up, certainly I agree with those.

144 MR. CLARKE:

All right. Would this be an appropriate time, your Honor?

Temperature

tense

Key Quotes (5)

Dr. John Gerdes
I think errors are a fact of life. Everyone makes errors.
Clarke uses Gerdes' own words to neutralize his criticisms of LAPD error rates — if errors are universal, the defense's contamination argument is weakened.
George Clarke
You have never used the kit, correct?
Establishes that Gerdes' two days of testimony criticizing the Roche DQ-Alpha kit was entirely from the outside — he has no hands-on experience with it.
Dr. John Gerdes
There are no publications that would specifically conclude that it is totally unreliable. There are numbers of publications that discuss the contamination issues and other issues we brought up.
A significant concession — Gerdes admits the scientific literature does not declare the kit unreliable, only that contamination concerns exist.
Dr. John Gerdes
It is sort of the cookbook, if you will.
Gerdes characterizes the Roche user guide positively, undermining the suggestion that the kit's procedures are scientifically suspect.
Dr. John Gerdes
The prominent consensus is it does cause aids.
An awkward moment where Gerdes initially hedged on whether HIV causes AIDS before the judge cut him off — briefly made the defense expert look evasive on basic science.

Evidence (2)

Informal
Amplitype User Guide — Roche/Perkin Elmer kit manual for DQ-Alpha PCR typing, used by LAPD, Cellmark, and DOJ
discussed; Clarke gets Gerdes to confirm it describes correct scientific procedures
Informal
Package insert included with the Roche DQ-Alpha kit — abbreviated version of the user guide
discussed; Gerdes confirms it accurately describes test setup procedures

Notable Exchanges (3)

George ClarkeDr. John Gerdes
Clarke walks Gerdes through his own laboratory's error rates — including 10-15% for early HCV indirect testing and an acknowledged 2-5% range for PCR blind trials — turning Gerdes' attack on LAPD's reliability back onto his own lab.
strategic
George ClarkeDr. John Gerdes
Clarke establishes that Gerdes has never used the Roche DQ-Alpha kit personally, only observed it in approximately 30 cases as a defense consultant — directly undermining the weight of his two days of criticism.
revealing
Dr. John GerdesLance A. ItoBarry Scheck
Clarke asks whether HIV causes AIDS; Scheck objects for irrelevance; Ito notes it's already in the record; Gerdes begins an oddly hedged answer ('I guess that is a controversial question') before the judge cuts him off and moves on.
awkward

Light Moments (1)

Dr. John Gerdes
Gerdes characterizes the Roche user guide as 'sort of the cookbook, if you will' — an informal moment in otherwise dry technical testimony.

Credibility Attacks (3)

⚔ Dr. John Gerdes
bias / limited experience
Clarke establishes that Gerdes' entire experience with the DQ-Alpha kit comes from his role as a defense consultant reviewing cases — he has never personally used the kit, undermining his authority to declare it unreliable.
⚔ Dr. John Gerdes
prior inconsistent statement / tu quoque
Clarke confronts Gerdes with a claimed prior statement that his own indirect HIV/HCV testing had a 10-15% error rate — Gerdes partially retreats, saying he may have been referring to HCV not HIV, but the comparison to his LAPD critiques lands.
⚔ Dr. John Gerdes
own-lab error rate comparison
Clarke gets Gerdes to confirm that his own laboratory uses techniques with measurable error rates and that 'errors are a fact of life,' neutralizing the implication that any error rate in LAPD's work is uniquely disqualifying.

Witness Demeanor

(Discussion held off the record between the Deputy District Attorneys.)

Objections

2 objections (0 sustained, 1 overruled)
Proceeding 7946 • 144 utterances • Defense witness
Criminal Trial
Department 103
⚖️ Start
📂 AUG 3, 1995 📄 Cross-examination of Dr. John
AUG 3, 1995 KRT DvH TD