Texas Lab's License Suspended After Probe Into Pennsylvania Sex Assault Case

A Texas laboratory’s license to do drug testing in criminal cases has been suspended after an investigation found the lab submitted inaccurate test results and engaged in misconduct.

The lab, ExperTox, which is located in Deer Park near Houston, and its vice president and lab director, Ernest Lykissa, were faulted by the Texas Forensic Science Commission for their work in a Pennsylvania sexual assault case.

The investigation also found Lykissa violated state regulations by failing to obtain a forensic analyst license.

According to commission rules, ExperTox’s license will be withdrawn for two years. It has 30 days to appeal the ruling.

ExperTox managers did not respond to repeated phone calls and an email seeking comment.

A woman who answered the phone at the company said Lykissa was unavailable.

PHILADELPHIA CASE

The commission’s investigation started after a prosecutor in Philadelphia filed a complaint last year questioning ExperTox’s work in a case involving a police officer who was arrested in a 2019 sexual assault case.

At the time, police said the victim was a 21-year-old woman, according to NBC Philadelphia.

“He may have provided her without her knowledge some kind of intoxicant that rendered her unable to appraise what was actually going on,” Capt. Sekou Kinebrew said in an interview after the officer’s arrest.

The prosecutor hired a local company that contracted with ExperTox to analyze a sample of the victim’s hair, according to the commission’s report.

In February 2020, an ExperTox test found the hair tested positive for the drugs lidocaine and THC, the active ingredient in marijuana.

“If these drugs were administered to her without her consent, then that could constitute a drug-facilitated assault by the perpetrator,” the commission quoted Lykissa’s report as saying.

‘CLINICAL USE ONLY’

The initial report included the caveat, “CLINICAL USE ONLY, NOT FOR FORENSIC PURPOSES.”

Notified about the prosecutor’s complaint in January 2021, “Lykissa responded by email stating he was surprised because the case was clearly labeled as for only clinical purposes,” the commission said.

Lykissa also defended his work by telling investigators he remembered telling the prosecutor, “I do not want to testify in this case. I cannot offer you anything scientifically valid.”

But the prosecutor disputed Lykissa’s claim, telling investigators Lykissa told her the drugs were a “witch’s brew” and that “she got him.”

The report says Lykissa also told investigators he was not aware the hair testing would be used in a criminal case because it was submitted to him by an intermediary company without documentation.

But the commission report said “the record was clear” he knew it was in connection with a criminal prosecution and had communicated directly with the prosecutor.

The commission also received a second copy of the lab report which omitted the disclaimer that it wasn’t for scientific purposes.

The DA’s office paid an additional $1,315 for the new version of the report, which was identical to the original, except the one line about “clinical purposes” had been removed, the commission said.

COMMISSION HIRES EXPERT

The commission hired an independent expert to review the case.

The expert said ExperTox used unapproved testing procedures and that it “never should have issued” its report.

In fact, the positive result for lidocaine should have been negative using accepted standards, the expert said.

The expert also said the company’s “significant upcharge” for a “simple removal of the disclaimer…should raise some ethical concerns” for ExperTox.

WRONG TEST RESULT

In a July interview with investigators, Lykissa said “ExperTox does not have a forensically validated hair-testing method” and acknowledged the lidocaine test result in the Pennsylvania case was “well below” its own reporting threshold, the commission said.

Furthermore, ExperTox never produced its raw data validating its test, which the law requires labs to keep, the panel said.

Prosecutors dropped the rape case for lack of evidence.

“Since this is an active and open prosecution we have no further comment at this time,” spokeswoman Jane Roh said.

The defendant’s attorney did not return calls seeking comment.

COMMISSION FINDINGS

The commission, which is made up of seven scientists, a prosecutor and a defense attorney, voted two weeks ago that Lykissa and ExperTox engaged in professional misconduct, according to the report:

• Lykissa failed to obtain a forensic analyst license.
• The lidocaine results were “not based on any reliable validation work” and “should not have been issued.”
• The “interpretive opinion” was “unfounded and unsupported by accepted scientific principles.”
• Lykissa produced a “forensic version” of a clinical result for the payment of an additional fee with no changes to the report.

The commission withdrew accreditation for ExperTox “in the discipline of forensic toxicology.”

Other stakeholders should consider submitting any forensic analysis performed by ExperTox for an independent review, the commission said.

WACO CASE

Fort Worth defense attorney Christy Jack represents a former Waco daycare owner convicted in 2015 of murdering a child after Lykissa testified about the presence of Benadryl in hair samples of other children in her care.

The suspect won an appeal based on faulty jury instructions and is awaiting a re-trial.

Lykissa was set to testify in the new trial, Jack said, until she learned of the recent developments involving the Texas science commission and the Pennsylvania case.

“We were the ones who notified the prosecution of the problems with their witness,” Jack said.

Lykissa told the commission he worked on only about five similar cases.

But Jack said the lab’s troubles could affect numerous other cases in Texas and around the country.

"There's no telling how many cases his testimony, his questionable testimony, has affected,” Jack said.

According to ExperTox’s website, the company also does private drug testing for employers and other testing such as COVID-19.

The commission’s jurisdiction is limited to investigating labs’ work in criminal cases.

Separately, the commission obtained a document from the College of American Pathologists, which accredits labs nationwide, showing it put ExperTox on probation in May.

CAP started its own investigation after the Texas panel forwarded information about its concerns months earlier.

CAP’s probation notice, which was attached to the commission’s report, faulted ExperTox’s “lack of continuous compliance” with quality management standards.

CAP did not respond to an email for comment.

EXPERTOX PLANS TO APPEAL

Representatives for ExperTox said they plan to appeal the findings and work to maintain its accreditation. Their statement is below:

ExperTox disagrees with the Texas Forensic Science Commission’s investigative report and has retained counsel to pursue an appeal. At the designated time, the Company will respond to each of the report’s unsubstantiated findings and conclusions. In addition, the Company is working with the College of American Pathologists to maintain its longstanding accreditation. Accordingly, we do not have any comment outside of the recognized legal and administrative channels at this time.