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Appellate Court Date: 2021.12.27
12:19:52 -06'00'
Porter v. Cook County Sheriff’s Merit Board, 2020 IL App (1st) 191266
Appellate Court JACK PORTER, Plaintiff-Appellant, v. THE COOK COUNTY
Caption SHERIFF’S MERIT BOARD; JAMES P. NALLY, in His Official
Capacity as Chairman of the Cook County Sheriff’s Merit Board;
BYRON BRAZIER, in His Official Capacity as Vice Chairman of the
Cook County Sheriff’s Merit Board; JOHN DALICANDRO, in His
Official Capacity as Secretary of the Cook County Sheriff’s Merit
Board; PATRICK BRADY, GRAY MATEO-HARRIS, KIM R.
WIDUP, VINCENT T. WINTERS, and JENNIFER E. BAE, in Their
Official Capacity as Members of the Cook County Sheriff’s Merit
Board; TOM DART, in His Official Capacity as Sheriff of Cook
County; TONI PRECKWINKLE, in Her Official Capacity as
President of the Cook County Board of Commissioners; and THE
COUNTY OF COOK, Defendants-Appellees.
District & No. First District, Second Division
No. 1-19-1266
Filed July 21, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 17-CH-04852; the
Review Hon. Anna M. Loftus, Judge, presiding.
Judgment Affirmed.
Counsel on Ronald A. Bobbitt, of Bobbitt & Associates, of Chicago, for appellant.
Appeal
Stephanie A. Scharf, George D. Sax, and Rebecca L. Ford, of Scharf
Banks Marmor LLC, of Chicago, for appellee Thomas J. Dart.
No brief filed for other appellees.
Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Justices Lavin and Coghlan concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Jack Porter, appeals from the trial court’s affirmance of the Cook County Sheriff’s
Merit Board’s (Board) decision to terminate Porter’s employment with the Cook County
Sheriff’s Office (CCSO) for testing positive for a cocaine metabolite. For the reasons that
follow, we affirm.
¶2 I. BACKGROUND
¶3 In May 2014, defendant Thomas J. Dart (Dart), Cook County sheriff, filed a complaint
against Porter with the Board. In that complaint, Dart sought the termination of Porter’s
employment as a Cook County correctional officer, on the basis that Porter tested positive for
benzoylecgonine, a cocaine metabolite, in violation of the rules, regulations, and general orders
of the Cook County Department of Corrections (Corrections). The Board held a hearing on this
complaint over the course of multiple days, during which numerous witnesses testified.
¶4 Lieutenant Michael Bryant of CCSO testified that in December 2013, he was assigned to
External Operations, which mans Corrections’ external posts, including overseeing inmates
while at hospitals and their transport. At the time, he was a watch lieutenant for his shift. Porter
was one of the employees that he supervised at that time, and Porter was assigned to Stroger
Hospital. On December 19, 2013, Bryant was notified that Porter had been selected to submit
to a random drug test. Bryant notified Porter that he had been selected, and Porter reported
immediately and provided his sample.
¶5 Robert Dombrowski, supervisor of the CCSO’s Drug Testing Unit (DTU), testified as
follows. On December 18, 2013, Porter was randomly selected by a computer program to
submit to drug testing, and on December 19, 2013, Porter was notified of that fact by one of
the technicians in DTU. Later that same day, technician Phillip Bianco collected a specimen
from Porter. At the end of each day, all of the specimens that had been collected, including
Porter’s, were shipped to Pharmatech, the testing laboratory, via UPS.
¶6 At the time Porter submitted his specimen, an internal control number (RT number) was
assigned to it by CCSO. The number assigned to Porter’s specimen was RT-13-1272.
Dombrowski explained that RT stood for “random test,” 13 referred to the year 2013, and the
last four digits referred to what number test it was CCSO had performed that year, i.e., the
1272nd test performed that year.
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¶7 Dombrowski identified Porter’s test results that he received from Pharmatech via e-mail.
He acknowledged those results indicated that Porter’s test identification number was RT-13-
1372. It should have been RT-13-1272. Dombrowski testified that the difference was a typo
and that—because Pharmatech worked off of the specimen ID number, not the RT number—
the error did not affect the chain of custody. The results Dombrowski received for Porter from
Pharmatech indicated that Porter tested positive for benzoylecgonine, a cocaine metabolite, but
did not reflect the quantitation—or the level of the metabolite in the urine. Upon receiving that
result, Dombrowski prepared a packet of paperwork and opened a case with the Office of
Professional Review (OPR).
¶8 OPR wanted the quantitation, so Dombrowski requested that information from
Pharmatech. In response, Pharmatech sent him a second report that reflected a quantitation of
3038 nanograms per millimeter. Dombrowski acknowledged that the bottom of the report said
“corrected,” but testified that whenever a second report is generated, it says “corrected.” He
also testified that when he had requested quantitations in the past, those reports indicated
“corrected” on the bottom.
¶9 After Dombrowski notified Porter of the positive results, Porter chose to exercise his right
to a retest and selected ACL Laboratories to perform the test. The results from ACL confirmed
that Porter’s specimen tested positive for benzoylecgonine. Dombrowski forwarded those
results to OPR as well.
¶ 10 Porter provided a list of prescription medication that he was taking at the time of the test,
but Pharmatech indicated that those medications were not known to cause a positive result on
a test for cocaine metabolites.
¶ 11 On cross-examination, Dombrowski acknowledged that in the comments section of the
testing notification form signed by Porter on the day he submitted his specimen, there was a
sticker with a barcode that read, “Bottle B (split).” Dombrowski explained that on the chain of
custody form, there are two preprinted stickers that have identical barcodes on them. One
sticker says Bottle A and the other says Bottle B. If the specimen were split, i.e., the single
specimen split into two separate bottles, the Bottle B sticker would be placed on the second
bottle. In 2013, however, CCSO did not split specimens. Rather, they would place the Bottle
A sticker on the specimen bottle and the Bottle B on the notification form. Thus, although the
notification form had the Bottle B sticker on it that said “split,” Porter’s specimen was not split.
¶ 12 Phillip Bianco, a technician with DTU, testified that on December 19, 2013, he collected a
urine specimen from Porter. He identified the testing notification form that he helped complete.
In the comments section of that form, he placed the Bottle B sticker from the chain of custody
form, which is provided to them by Pharmatech. He used the Bottle A sticker to seal the
specimen bottle. The number on the barcode of the stickers was the specimen ID used by
Pharmatech. Bianco testified that the “split” reference on the Bottle B sticker was there for
companies that used the forms in situations where they split specimens. DTU did not split
specimens, however, so the reference on the sticker did not mean anything with relation to
Porter’s specimen, and their office generally just ignored the reference. Porter’s specimen was
not split.
¶ 13 Alfonzo Hunter, a technician with DTU, testified that on December 19, 2013, he released
the specimens collected that day, including Porter’s, to the UPS courier to be shipped to
Pharmatech in San Diego, California. In doing so, the specimens, each sealed in their
respective specimen pouches, were removed from DTU’s storage refrigerator and place inside
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a courier bag that is specifically approved to transport specimens. The courier bag is then sealed
and a preprinted airbill is placed on the courier bag.
¶ 14 Daniel Cramer, an investigator with OPR, testified that in December 2013, he was assigned
the task of investigating the case against Porter. In doing so, he reviewed the documents he
received from DTU, verified Porter’s prescription history, learned from Pharmatech that
Porter’s prescription history was not the reason for the positive drug test, de-deputized Porter,
took Porter’s statement, and helped Porter complete the paperwork to obtain a retest. In his
statement, Porter denied (1) taking any prescriptions other than the ones he disclosed,
(2) ingesting or using cocaine, (3) taking any unknown pills or medications from others, or
(4) believing he was being sabotaged. He could not explain why his test came back positive
for a cocaine metabolite.
¶ 15 After the retest came back positive, Cramer wrote up his investigation based on the two
drug tests, Porter’s statement, and DTU’s documentation. Based on his investigation, Cramer
concluded that Porter violated the Cook County Drug-Free Workplace Policy and
recommended that Porter be separated from his employment with CCSO.
¶ 16 Thomas Aucoin, the vice president of Pharmatech, testified as an expert in toxicology.
Aucoin testified that, upon receiving samples for testing, they are checked into the lab, a
process that includes ascertaining that the seals on the samples are intact and that all the
paperwork matches the samples. At that time, each sample is assigned an internal tracking
number that is used by Pharmatech to track the sample while in the lab. The RT number
assigned to the sample by CCSO is recorded but not used by Pharmatech to track the sample
while in the lab.
¶ 17 After Porter’s sample was checked in, an initial screening test was run on a portion of the
sample to screen for amphetamines, barbiturates, benzos, cocaine metabolites, marijuana
metabolites, methadone, methaqualone, opiates, PCP, propoxyphene, creatinine/specific
gravity, oxidizing adulterants, and pH. Aucoin explained the initial screening test as follows:
“It’s an enzymatic assay, and what it does is it has antibodies to—to the drug classes.
So, for example, let’s use amphetamine. If one of the tests is supposed to be for
amphetamine-type compounds, the assay uses antibodies and antigens in the urine to
see if there’s any reactive to amphetamine-type compounds in the urine; and if it’s
reactive, it’s considered presumptive positive, meaning that there was activity in the
sample for an amphetamine-like compound, but until a confirmation’s done, we don’t
know specifically what that compound is. So it’s presumptive positive using EMIT, as
you described.”
Aucoin testified that to perform this test, the technician placed the sample in the instrument.
The instrument read the barcode on the sample, and the computer system, based on the barcode,
identified which tests to run on that sample and what cutoffs (i.e., minimum drug levels to
generate a positive result) to apply. Control samples were tested at the same time to ensure that
the instrument’s results were accurate. The instrument performed the tests, and the results were
reviewed by the technician. If the results were acceptable, they were reported back to the
computer system. The portion of the sample on which this initial screen was performed was
then destroyed. This initial screen on Porter’s sample was positive for cocaine metabolite.
¶ 18 Because the initial screening test on Porter’s sample produced a presumptive positive for
cocaine metabolite, a confirmation test was performed on the sample. To do that, another
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portion of Porter’s sample was prepared for a gas chromatography/mass spectrometry
(GC/MS) test. The prepared sample portion was then filtered. Before testing the filtered
portion, the instrument was calibrated and checked against control samples. Once the
instrument was calibrated, the gas chromatograph part of the instrument removed the drug
components from the urine through the application of heat. The gas chromatograph then
injected the drug components into the mass spectrometer, which applied electricity to the
components. That electricity split up the atomic structure of the compound, which created a
“fingerprint” for the component and allowed the instrument to identify the drug and the
concentration of it by its chemical structure. The results of this test on Porter’s sample were
positive for a cocaine metabolite in the amount of 3038.34 nanograms per milliliter.
¶ 19 Aucoin testified that the threshold/cutoff numbers for screening and confirmatory tests are
set by each client. Here, the threshold for cocaine metabolites on the screening test was 300
nanograms per milliliter and 150 nanograms per milliliter on the confirmatory test. Because
the 3038.34 nanograms per milliliter found on the GC/MS test exceeded the 150 nanograms
per milliliter threshold, the test was deemed positive.
¶ 20 The initial report from the GC/MS test was generated on December 26, 2013. The report
indicated that Porter’s RT number was RT-13-1372 and did not include a quantitation. Aucoin
reiterated that the RT number is not utilized by Pharmatech in any way, so the error in Porter’s
RT number had no bearing whatsoever on the test’s results; it was simply a data entry error.
Aucoin also testified that the reason the report did not contain a quantitation was because of
the way CCSO set up its account with Pharmatech. When each client establishes its account,
it makes an election as to whether to automatically receive quantitations with the lab results.
¶ 21 The following day, December 27, 2013, a second, “corrected” report was issued. That
report was labeled as “corrected” because someone had corrected the typo in the RT number
and added the quantitation. The report was not corrected because there was something wrong
with the test results. The results of the tests on Porter’s sample were sent to CCSO.
¶ 22 Aucoin identified Pharmatech’s litigation package for Porter’s sample, which is kept in the
ordinary course of business and consists of a compilation of paperwork that is generated,
produced, or received by Pharmatech in the course of testing the sample. In that litigation
package, Ken Kodama, who was the director of the Pharmatech laboratory at the time, was
identified as the “Responsible Person” under federal requirements. This meant that the
Substance Abuse and Mental Health Services Administration had interviewed Kodama,
reviewed his education and experience, and deemed him an expert witness in the field of
forensic toxicology.
¶ 23 In the litigation package, Aucoin identified a letter written by Kodama to the Assistant
General Counsel of CCSO. The purpose of that letter was to explain that while putting together
the litigation package, Kodama misread one of the signatures on the internal chain of custody
and printed the wrong name under the signature. He initially believed the signature to belong
to Zammany Kline, but later learned it was the signature of Andy Loc Ngo. Aucoin testified
that this misreading did not affect the test results in any way.
¶ 24 Aucoin confirmed that Kodama had informed CCSO that, to the best of Kodama’s
knowledge, Porter’s prescription medication would not cause him to test positive for a cocaine
metabolite. Aucoin also testified that he did not know of any studies or literature that showed
that a positive cocaine metabolite test at the level Porter tested could result from ingesting
airborne cocaine-based anesthetics or use of topical cocaine-based painkillers.
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¶ 25 Catherine Pangco, a laboratory screener with Pharmatech, testified that on December 23,
2013, she conducted the initial screening test on Porter’s sample by placing a portion of his
sample on the testing instrument, waiting for the instrument to perform the testing and print
the result, and providing the results to her supervisor. Porter’s sample tested positive for
cocaine. She also testified that she calibrates the instrument she uses for testing every day and
that her supervisor reviews those calibration results.
¶ 26 Andy Loc Ngo, a GC/MS operator with Pharmatech, testified that the GC/MS machines
used at Pharmatech are calibrated weekly through the use of an “autotune,” which detects
whether any of the machines’ parameters are out of the appropriate range. To run a GC/MS
test, Ngo places a tray of samples on the machine; makes sure the reagent, wash reagent, and
syringe are in place; and sets the machine to run. He then waits until the machine produces the
results for the control samples on the tray, so that he can be sure that the machine was operating
properly. If the controls test properly, he allows the machine to continue testing the remaining
samples on the tray.
¶ 27 Ngo testified that he conducted a GC/MS test on a portion of Porter’s sample and that it
tested positive for cocaine at 3038.34 nanograms per milliliter. He then submitted the result to
Kodama for review. Ngo also testified that the signatures on the internal chain of custody form
that Kodama mistook as the signatures of Zammany Kline were, in fact, his (Ngo’s).
¶ 28 Judith Kay Keene, a medical technologist with ACL Laboratories (ACL), testified as an
expert in toxicology. In January 2014, she was a certifying scientist and quality coordinator for
ACL. That month, ACL was asked to conduct a retest on Porter’s sample for benzoylecgonine.
ACL conducted a GC/MS test on it, which produced a positive result for benzoylecgonine at a
level of 5258 nanograms per milliliter. Keene testified that, although rare, it was possible to
have a 2000-nanograms-per-milliliter difference in results on a retest, especially if the sample
had been frozen and the sample was not thoroughly thawed or was not mixed before a portion
of it was removed, because drugs partition in strata in frozen urine.
¶ 29 Dart then rested.
¶ 30 Porter called Casandra Lewis to testify first. She testified that she was a circuit court judge
in the State of Illinois and that her mother and Porter’s mother were best friends. She testified
that she knew Porter “reasonably well” and that he was a dutiful son to his mother, a caring
and compassionate person, and a good caregiver. She also did not know him to be anything
but a truthful person.
¶ 31 Drella Savage, a retired Cook County circuit court judge, testified that she had known
Porter for 25 years, since she worked as a law clerk for Justice Blanche Manning, Porter’s aunt,
in the Illinois Appellate Court. She testified that Porter took care of his grandmother, uncle,
and aunt when they were older. Savage knew Porter to be courteous and kind, honest, and
upstanding. She heard good things from other judges regarding the work Porter performed in
the courtrooms. Overall, she believed him to have a good character for honesty, integrity,
compassion, being straightforward, keeping his word, and doing the things he was supposed
to do when he was supposed to do them.
¶ 32 Kim Pemberton, an officer with Corrections, testified that she was Porter’s partner at work
for 10 years. She believed him to be honest, kind, generous, and respectful. He was a loving
father and son, and she trusted him with her life. Porter was highly respected by the other
officers and had a good work ethic.
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¶ 33 Phillip Daniels testified that he was a retired officer with CCSO. At the time of his
testimony, Daniels had known Porter for over seven years. Daniels testified that Porter was
very conscientious and detailed. He was a stickler for “exact or precise things,” and Daniels
“wouldn’t trade him for nothing in the world.” When asked what Porter’s reputation for
truthfulness was, Daniels responded, “From everything that I know and from people that I’ve
dealt with him, he’s A-1.”
¶ 34 Percy Timberlake, a correctional officer with Corrections, testified that he had known
Porter for 24 years. He testified that Porter was a “stand-up guy” and a good man. He
characterized Porter’s reputation for truthfulness as a 9½ on a scale of 1 to 10.
¶ 35 John Bederka testified as an expert in toxicology. Bederka characterized Pharmatech’s
testing conducted on Porter’s sample as “not definitive” because the litigation package from
Pharmatech did not contain calibration curves for the GC/MS test. He also testified that the
large difference in results between the GC/MS test performed by Pharmatech and the GC/MS
test performed by ACL was, in his experience, inconsistent with the sample being the same at
both Pharmatech and ACL. He testified that, typically, if the results are not within 10% of each
other, one would want to examine if something had gone wrong in the chain of custody or
testing process. He later testified on cross-examination, however, that although it seemed
unlikely that the results would be higher in a sample that had been frozen, he could probably
be proven wrong in a study.
¶ 36 Bederka then went on to opine that there was a high probability that Porter had been
passively exposed to cocaine or Esterom, a drug that would produce a positive result for
benzoylecgonine, while working in hospitals and being in close proximity to hospitalized
inmates. Although Bederka could not say for certain whether cocaine-based drugs are utilized
at Stroger Hospital where Porter was assigned, he testified that they are commonly used in the
ear, nose, and throat field of medicine.
¶ 37 Porter testified next. He testified that he had worked for the CCSO for 27 years and was,
at the time of his testimony, assigned to the External Operations unit at Stroger Hospital. There,
his duties included searching and securing inmates as they arrived at the hospital; escorting
inmates to various clinics within the hospital, including dental, ear, nose, and throat, and same-
day surgery; searching and dressing inmates following their treatment; returning inmates to
holding after treatment; and providing relief to other officers. He testified that he often received
multiple assignments throughout his shift and would sometimes even be assigned to a different
hospital for all or part of the day.
¶ 38 During his shift on December 19, 2013, he was informed that he had been selected to
submit to a random drug test. He complied and submitted a urine sample that day. On
December 31, 2013, he received a phone call from Cramer, who told him that his drug test had
come back positive for prescription medications. Porter informed Cramer that he took
prescription medication and that he would fax a list of his medications to Cramer, which he
did.
¶ 39 On January 8, 2014, Porter received a phone call, telling him that he needed to report to
OPR, which he did. There, Cramer de-deputized Porter and informed him that the results of
his drug test did not match the list of prescription medication he had provided and that he had
tested positive for cocaine. Porter was in shock when he heard this because he did not do any
cocaine or any other prohibited drugs. Cramer informed Porter that he could elect to have his
sample retested, and Porter chose to do so. Pending the retest, Porter was permitted to continue
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working, but he was moved from Stroger Hospital to the compound outside the jail. He was
later suspended.
¶ 40 Porter denied ever receiving or being shown anything that demonstrated that the initial
screening test results exceeded 300 nanograms per milliliter. He also denied ever being given
any information regarding the results of his retest.
¶ 41 In rebuttal, Dart called Jerrold Leikin, the director of medical toxicology for North Shore
University Health Systems-OMEGA, to testify as an expert in medical toxicology. He testified
that he reviewed the lab documents from Pharmatech and ACL, the complaint, OPR’s file,
documents provided by Bederka, and Bederka’s hearing testimony.
¶ 42 Leikin testified that it was his opinion that it was not possible for a person to test positive
for benzoylecgonine at the level Porter did based on absorption of cocaine through the skin,
passive aerosol ingestion of cocaine, or topical Esterom use. He further testified that in his 17
years of working in emergency departments and administering medications that contained
cocaine, he never once tested positive for cocaine and was never aware of any doctor who had
tested positive for cocaine under such circumstances. In addition, at OMEGA, thousands of
occupational urine drug tests are performed each year, and only about 10 of them come back
positive for cocaine. If passive ingestion of cocaine could cause a person to test positive on a
drug test, Leikin would expect the number of positive cocaine tests each year to be hundreds
more. Leikin testified that it was his opinion within a reasonable degree of scientific certainty
that Porter used cocaine.
¶ 43 Leikin also testified that the difference in the Pharmatech and ACL GC/MS test results
were not an issue of clinical concern to him because in split specimens or specimens where an
additional portion was later taken for a retest, such variations could result from how the
specimen is stored. In his experience, he had seen different levels reported in tests and retests.
¶ 44 He also testified that an error in the specimen donor’s identification number would not be
considered a “fatal flaw” that would require the test and sample to be disposed of. Such an
error is not uncommon and is easily rectified. In fact, Leikin testified that he did not observe
any fatal flaws in this case.
¶ 45 Cramer testified again on rebuttal. He testified that he never told Porter that he tested
positive for prescription drugs. Rather, he asked Porter if Porter was taking any prescription
drugs. In his initial call with Porter following the test, he informed Porter that Porter had tested
positive, but did not inform him of what particular drug he tested positive for.
¶ 46 Finally, Eugene Youkilis, a toxicologist with Toxicology Resource Associates, testified as
a rebuttal expert in toxicology and drug screening protocol for Porter. He testified that he
reviewed the documentary evidence presented by Dart and the hearing testimony of Aucoin
and Keene. He testified that the contract between Pharmatech and CCSO required that the
specimens for drug testing be tested in a lab certified by the Substance Abuse and Mental
Health Services Administration that meets the standards in the Mandatory Guidelines for the
Federal Workplace Drug Testing Programs. Under those guidelines, laboratories are required
to have a “Responsible Person,” who is responsible for establishing the standard operating
procedures; ensuring that the people who perform the tests have the proper qualifications,
education, and experience; ensuring that specimens are stored and handled properly; and
ensuring that all chain of custody and quality control programs are strictly followed.
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¶ 47 He opined that proper drug screening protocol was not followed when Kodama included
an addendum in Pharmatech’s litigation package stating that he initially assumed a signature
on the internal chain of custody to belong to Zammany Kline, but the signature actually
belonged to Ngo and that, accordingly, the printed name on certain lines of the form should be
Ngo’s, not Kline’s. Youkilis testified that it was improper for Kodama—as lab director,
certifying scientist, and Responsible Person—to assume anything and to put someone else’s
name on a document. As a result, Youkilis would have considered the test results to be invalid.
¶ 48 Youkilis also opined that it was a deficiency in protocol that the GC/MS test results from
Pharmatech did not contain a signature indicating that they had been reviewed. Because there
was no evidence that the test results had been reviewed, in Youkilis’s opinion, they were
invalid.
¶ 49 In addition, with respect to the discrepancy in results between the Pharmatech and ACL
tests, he testified that although it is not uncommon for the levels of benzoylecgonine to
increase, the 73% increase in this case was well beyond the average of 10% found in peer-
reviewed studies. The increase in Porter’s test results also exceeded the 30% increases he had
personally observed in frozen samples. To him, that increase indicated that something was
wrong in the handling and testing process.
¶ 50 Finally, he characterized the error in the RT number on the December 26, 2013,
Pharmatech GC/MS test results report to be another error that, in combination with the others,
raised a question with respect to the integrity of Pharmatech’s handling of Porter’s test. That
error alone, however, did not constitute a fatal flaw.
¶ 51 On March 7, 2017, the Board issued its decision, finding that Porter had violated various
provisions of Sheriff’s Order 11.2.23.0 (effective date: June 28, 013), CCSO Drug-Free
Workplace Policy, Sheriff’s Order 11.2.20.0, and Cook County Sheriff’s Department Merit
Board Rules and Regulations. As a result, the Board ordered that Porter be separated from his
employment with the Department effective May 20, 2014.
¶ 52 On April 4, 2017, Porter filed a complaint for administrative review in the trial court. In
his brief in support of his complaint, Porter argued that the Board’s decision should be reversed
because the results of the testing were not valid. According to Porter, the test results from
Pharmatech were invalid because (1) there was no signature on them, confirming they had been
reviewed, (2) Kodama wrote the wrong name on the internal chain of custody form, and (3) the
RT number was incorrectly listed on the initial GC/MS results report. Porter also noted that
there was a question of whether the GC/MS tests conducted by Pharmatech and ACL were
performed on the same sample and that the UPS tracking information on the transport of
Porter’s sample referenced a date of November 15, 2013, but the sample was not given until
December 19, 2013. Porter also argued that the admission of the Pharmatech litigation package
without testimony from Kodama was erroneous because the litigation package contained the
hearsay opinions and statements of Kodama. Finally, Porter pointed out that numerous
witnesses had testified to his honesty and good character.
¶ 53 Porter also filed a supplemental brief in support of his complaint for administrative review.
In that supplemental brief, Porter argued that the Board’s decision was invalid because the
Board was not lawfully constituted in that two Board members had been appointed for terms
of less than six years.
¶ 54 In response, Dart argued, in relevant part, that the clerical errors in the RT number,
signature on the internal chain of custody form, and UPS airbill did not affect the validity of
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the test results in any way. In addition, Dart argued that the Pharmatech test results were
admissible under the business records hearsay exception and that even if they were not,
Aucoin, as an expert, could testify to the test results as a basis for his opinion that Porter’s
urine contained a cocaine metabolite. Finally, Dart argued that Porter did not meet his burden
of proving that the Board decision should be voided because the Board member who conducted
the hearing was properly appointed and because Porter did not demonstrate that there was not
a proper quorum of four Board members who rendered the decision against him.
¶ 55 Porter’s reply mostly reiterated the arguments raised in his initial brief in support of his
complaint. He did, however, raise for the first time the argument that there was no evidence
that Porter’s sample exceeded the 300 nanograms per milliliter threshold on the initial
screening test.
¶ 56 On May 10, 2018, the trial court issued an order in which it concluded that because the
Board was not lawfully constituted at the time it issued its decision against Porter, remand for
a new hearing was necessary. Despite this conclusion, the trial court addressed the question of
whether the Board’s decision was against the manifest weight of the evidence, concluding it
was not. In so concluding, the trial court rejected Porter’s contention that the test results were
rendered invalid by (1) the incorrect RT number on the initial GC/MS results report,
(2) Kodama’s printing of the wrong name under Ngo’s signature on the internal chain of
custody form, (3) the variation in results between Pharmatech’s and ACL’s GC/MS tests,
(4) the lack of confirming signature on Pharmatech’s GC/MS results, (5) the incorrect date on
the UPS airbill, and (6) the reference to a Bottle B and split sample on the drug testing
notification form. The trial court also rejected the notion that Porter tested positive as a result
of passive ingestion of cocaine and Porter’s argument that Pharmatech’s litigation package was
inadmissible.
¶ 57 Porter subsequently filed a motion to reconsider, arguing that his suspension and
termination were invalid because the Board was not properly constituted and because the
suspension exceeded the Board’s authority. Accordingly, he argued, he should be reinstated
with back pay. He also argued that the trial court’s conclusion that the Board’s decision was
not against the manifest weight of the evidence was erroneous because there was no evidence
that the results of the initial screen exceeded 300 nanograms per milliliter. On July 9, 2018,
the trial court denied Porter’s motion to reconsider.
¶ 58 On January 17, 2019, Dart filed a motion to reconsider. In it, he argued that the trial court’s
May 10, 2018, order should be reconsidered because case law issued after that order dictated
a conclusion that the Board’s decision was valid under the de facto officer doctrine. In
response, Porter argued that despite the issue of whether the Board’s decision was valid, there
remained a lack of evidence that the initial screening results did not indicate whether the
sample exceeded 300 nanograms per milliliter.
¶ 59 On May 30, 2019, the trial court granted Dart’s motion to reconsider, concluding that the
de facto officer doctrine applied and the Board’s decision was valid. With respect to Porter’s
argument regarding the quantitation of the screening results, the trial court stated that it had
already addressed and rejected this argument. Accordingly, the trial court recalled the matter
from the Board, vacated that portion of the May 10, 2018, order related to the Board’s
composition, reaffirmed its May 10, 2018, conclusion that the Board’s decision was not against
the manifest weight of the evidence, and affirmed the Board’s decision.
¶ 60 Porter then instituted this appeal.
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¶ 61 II. ANALYSIS
¶ 62 On appeal, Porter argues that (1) the Board’s decision was against the manifest weight of
the evidence because there was no evidence presented demonstrating that the results of the
initial screen exceeded 300 nanograms per milliliter, (2) Pharmatech breached drug testing
protocol, and (3) the trial court erred in admitting Pharmatech’s litigation package. For the
reasons that follow, we affirm.
¶ 63 In administrative review cases, we review the agency’s decision, not the trial court’s. Lopez
v. Dart, 2018 IL App (1st) 170733, ¶ 67. The standard of review to be applied depends upon
the issues raised on appeal. Contentions related to the agency’s findings of fact are reviewed
under a manifest-weight-of-the-evidence standard, while the imposed punishment will be
overturned only if it is arbitrary, unreasonable, or unrelated to the requirements of service. Id.
¶¶ 68, 75.
¶ 64 With respect to our review of factual determinations,
“we take the agency’s finding of fact as prima facie true and correct and will reverse a
factual finding only if, after viewing the evidence in the light most favorable to the
agency, we conclude that no rational trier of fact could have agreed with the agency’s
decision and an opposite conclusion is clearly evident. [Citations.] We will not reverse
an agency’s finding of fact merely because an opposite conclusion might be reasonable
or we might have ruled differently. [Citation.] If the record contains evidence to support
the agency’s decision, we must affirm that decision. [Citation.]” Roman v. Cook County
Sheriff’s Merit Board, 2014 IL App (1st) 123308, ¶ 67.
It is the agency’s job to assess the credibility of witnesses, resolve factual inconsistencies,
weigh the evidence, and determine where the preponderance of the evidence lies. Rodriguez v.
Bagnola, 297 Ill. App. 3d 906, 916 (1998). We now address each of Porter’s contentions in
turn.
¶ 65 A. Manifest Weight
¶ 66 Porter first argues that the Board’s finding that he violated CCSO policies against drug use
was against the manifest weight of the evidence because there was no evidence of the precise
quantitative results of the initial immunoassay screening and, more specifically, no evidence
that the results exceeded the 300-nanograms-per-milliliter threshold established by the contract
between CCSO and Pharmatech. Thus, according to Porter, the initial screen of his sample did
not exceed the specified threshold, and the subsequent GC/MS test should not have been
performed. We disagree that the Board’s findings in this respect were against the manifest
weight of the evidence.
¶ 67 Portions of the contract between CCSO and Pharmatech were introduced into evidence.
These excerpts detailed the testing procedures to be followed by Pharmatech. Specifically,
Pharmatech was required to first perform an initial immunoassay screening test on specimens.
The contract provided the specific cutoff levels to be used in determining whether a specimen
was negative for the tested-for drugs. The specified cutoff level for cocaine on the initial
screening test was 300 nanograms per milliliter. Specimens that met or exceeded this level
were considered positive. The contract further provided that all specimens that were identified
as positive in the initial screening were to be confirmed on a GC/MS test, using the levels
specified in the contract for that test. For cocaine, the cutoff level on GC/MS tests was 150
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nanograms per milliliter. The contract specifically provided that “[a]ll confirmations [on the
GC/MS test] shall be by quantitative analysis.” No such requirement was imposed on the initial
screening test. Although the GC/MS tests were required to produce quantitative results under
the contract, Pharmatech was not required to report those quantitative results to CCSO unless
and until CCSO requested them.
¶ 68 These contract provisions, coupled with Aucoin’s testimony that the initial screening test
only created a “presumptive positive,” make clear that the purpose of the initial screening test
was to weed out the negative specimens from those that could be positive once confirmed with
further testing. To do this, the contract provided that those specimens that contained cocaine
levels below 300 nanograms per milliliter on the initial screening test were considered
negative, while those that contained 300 or more nanograms per milliliter on the initial
screening test were considered presumptively positive. It was irrelevant what the specific level
is; the determinative factor was simply whether the level was below or above 300 nanograms
per milliliter.
¶ 69 Porter does not dispute this, but instead argues that, because there was no evidence of the
specific level of benzoylecgonine found on his initial screening test, the initial screening test
did not meet the 300 nanograms-per-milliliter threshold and further testing should not have
been performed. According to Porter, the Board’s conclusion to the contrary was against the
manifest weight of the evidence. We disagree. As an initial matter, the lack of a quantitative
result on the initial screening test does not necessitate a conclusion that Porter’s specimen
contained less than 300 nanograms per milliliter of benzoylecgonine; a lack of a quantitative
result simply means that the precise amount of benzoylecgonine in Porter’s sample was not
recorded. That question, however, does not need to be answered in order to conclude that Porter
violated CCSO’s rules against drug use. Rather, as discussed above, the relevant inquiry is
simply whether on the initial screening test, Porter’s sample contained 300 or more nanograms
per milliliter of benzoylecgonine, and the record supports such a conclusion.
¶ 70 Aucoin testified that the threshold for the initial screening test and the GC/MS tests are set
by the client (here, CCSO). In this case, the threshold was 300 nanograms per milliliter for the
initial screening test. He further testified that when the initial screening test was performed,
the sample was placed on the testing instrument. The instrument then read the barcode on the
sample, and the computer system, based on the sample’s barcode, identified which tests to run
on that particular sample and what cutoffs to apply. Control samples were tested at the same
time to ensure that the instrument’s results were accurate. No evidence contradicting this
testimony was presented. Based on this testimony from Aucoin, the Board could have
reasonably concluded that, because the testing instrument used the sample’s barcode to identify
and apply the appropriate drug cutoffs to the tests and because the instrument’s accuracy was
tested each time, the positive on Porter’s initial screening test necessarily meant that the level
of benzoylecgonine was at least 300 nanograms per milliliter. Accordingly, the Board’s finding
in this respect was not against the manifest weight of the evidence.
¶ 71 Although Aucoin’s testimony alone is sufficient to support a finding that the positive on
the initial screening test indicated that there was at least 300 nanograms per milliliter of
benzoylecgonine in Porter’s sample, we also note that two separate GC/MS tests performed on
Porter’s samples—one by Pharmatech and one by ACL—produced results that far exceeded
300 nanograms per milliliter. It would not be unreasonable for the Board to conclude that if
the sample tested positive at that high of a level on GC/MS tests—the “gold standard” drug
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test, according to Bederka—in amounts that far exceeded 300 nanograms per milliliter, then it
must also have tested positive (i.e., exceeded 300 nanograms per milliliter) on the initial
screening test.
¶ 72 Accordingly, we conclude that the Board’s finding that Porter violated CCSO’s policies on
drug use was not against the manifest weight of the evidence on the basis that no evidence was
presented on the specific quantitative results of the initial screening test.
¶ 73 B. Testing Protocol
¶ 74 Porter next argues that Pharmatech breached standard drug testing protocol in a number of
ways: failing to document that the GC/MS results were confirmed by Pharmatech’s
Responsible Person or a certifying scientist, listing the incorrect RT number on one of the
GC/MS results reports, and printing of the wrong name on the internal chain of custody form.
We disagree that these alleged breaches in protocol warrant reversal.
¶ 75 As an initial matter, we note that Porter fails to place these alleged breaches of protocol
within any type of legal framework or explain how or why they required the Board to reach a
different conclusion. In the section of his opening brief addressing these alleged breaches,
Porter simply recites the evidence that he believes supports his contentions that protocol was
breached. The only legal authority that Porter cites is authority for the proposition that “[w]hen
considering records generated by high-tech devices like computers, the foundation testimony
must satisfy the court that the sources of information, method and time of preparation were
such as to indicate its trustworthiness and justify its admission.” Yet, Porter does not actually
assert that the Board erred in admitting the test results on this basis. In his reply brief, Porter
contends for the first time that because the test results were not confirmed by Pharmatech’s
Responsible Person or a certifying scientist, his punishment of termination was arbitrary and
unreasonable. He does not, however, cite any authority or offer any explanation in support of
his contention that the alleged breaches of protocol rendered termination an inappropriate
punishment for violating CCSO’s policies on drug use.
¶ 76 Ultimately, Porter’s underlying contention seems to be that the alleged breaches in protocol
rendered the GC/MS test results from Pharmatech invalid. Nevertheless, his failure to articulate
and explain his contentions and his failure to support them with relevant legal authority are
sufficient to consider these contentions waived. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)
(requiring that the argument section of appeals briefs “shall contain the contentions of the
appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on”); Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804 (2009) (holding that “[t]he
failure to assert a well-reasoned argument supported by legal authority is a violation of
Supreme Court Rule 341(h)(7) [citation], resulting in waiver”); Thrall Car Manufacturing Co.
v. Lindquist, 145 Ill. App. 3d 712, 719 (1986) (stating that “A reviewing court is entitled to
have the issues on appeal clearly defined with pertinent authority cited and a cohesive legal
argument presented. The appellate court is not a depository in which the appellant may dump
the burden of argument and research.”). Moreover, Porter’s contention that his punishment was
arbitrary and unreasonable as a result of the alleged breaches of protocol is also waived because
he only raised it in his reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (“Points not
argued [in the opening brief] are forfeited and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing.”); McGinley Partners, LLC v. Royalty Properties, LLC,
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2018 IL App (1st) 172976, ¶ 26 (“It is well settled that a party may not raise an issue for the
first time in its reply brief.”).
¶ 77 Even putting aside the waiver, however, we do not believe that these alleged breaches of
protocol required the Board to conclude that Pharmatech’s GC/MS results were invalid or that
Porter did not violate CCSO’s policies on drug use. First, in his opening brief Porter claims
that Pharmatech failed to document that its Responsible Person (Kodama) or a certifying
scientist reviewed the GC/MS results by signing them. In his reply brief, however, Porter
contends that Kodama or a certifying scientist was required to review and certify every step
taken in the testing process by initialing or signing each step and then attesting to his or her
review with a signature. In both instances, Porter relies on the testimony of Youkilis. The scope
of the protocol Porter claims was required, however, is broader than that to which Youkilis
testified. Youkilis testified that there was no signature or initials on Pharmatech’s GC/MS test
results to indicate that they had been reviewed and that reviewing and initialing or signing such
test results was standard industry practice. He did not, however, testify that anything other than
test results needed to be documented as reviewed and certified by a lab’s Responsible Person
or certifying scientist.
¶ 78 In addition, with respect to the review and certification of test results, Youkilis’s testimony
indicated that the documentation of review could appear somewhere other than on the actual
test results report. Specifically, he referred to Pharmatech’s chain of custody form, which
included a line for “data review & disposal” and testified that there should be a signature on
there to show that the results were reviewed. He also referred to ACL’s “confirmation sheet”
as an example of proper certification of test results review. In the case of Pharmatech’s GC/MS
test results, the chain of custody form did, in fact, contain the signature of Ngo on the “data
review & disposal” line. We recognize that there was no evidence presented that Ngo is a
Responsible Person or certifying scientist. Nevertheless, such evidence does demonstrate that
Youkilis’s testimony that there was no signature on that line indicating review was not entirely
accurate.
¶ 79 More importantly, the first page of Pharmatech’s litigation package was a document that
listed Porter’s specimen identification number, his RT number, the date his specimen was
collected, the date Pharmatech received the specimen, the date the GC/MS results were
reported, and the fact that the results of the test were positive for benzoylecgonine. Directly
underneath that information was a line for Pharmatech’s Responsible Person’s signature.
Kodama signed that line and included his printed name next to the signature. The Board could
have concluded that Kodama’s signature as Pharmatech’s Responsible Person, directly under
Porter’s identifying information, relevant dates, and the GC/MS results, was intended to serve
as certification of Pharmatech’s positive result on Porter’s sample. Given that Youkilis’s
testimony suggested that certification of test results could take multiple forms, we see no
reason why Kodama’s signature on this form did not suffice.
¶ 80 Next, Porter argues that Pharmatech breached protocol when it recorded the wrong RT
number on the December 26, 2013, GC/MS results reports. The evidence at trial was that a
report of the Pharmatech GC/MS results was first issued on December 26, 2013. That report
listed Porter’s RT number as RT-13-1372, instead of RT-13-1272. The following day, on
December 27, 2013, Pharmatech issued a corrected report, which reflected the correct RT
number of RT-13-1272. Numerous witnesses testified that the RT number was assigned by
CCSO was not used in any way by Pharmatech to track Porter’s sample or results. Leikin
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testified that such an error was not uncommon, was easily rectified, and was not a “fatal flaw”
that invalidated the test results. Based on this evidence, we do not agree that the Board was
required to disregard Pharmatech’s test results.
¶ 81 We recognize that Youkilis testified that the concern with the incorrect RT number was
that it could cause CCSO to report the results to the incorrect employee and that he considered
this error to be a fatal flaw. As discussed above, however, the report was promptly corrected,
and Leikin testified that this error was not a fatal flaw. The Board was not required to credit
Youkilis’s testimony over Leikin’s, and we are not in a position to reweigh the evidence. See
Rodriguez, 297 Ill. App. 3d at 916. Leikin’s testimony and the evidence that the RT number
was not utilized by Pharmatech and the report was promptly corrected before the results were
reported to Porter is sufficient to uphold the Board’s decision to credit Pharmatech’s results.
¶ 82 Lastly, Porter argues that Kodama “manipulated” the chain of custody when he printed the
name of “Z. Kline” under Ngo’s signature on the internal chain of custody form. The evidence
was that Ngo signed his name on the internal chain of custody form in several places but did
not print or stamp his printed name under his signature. Kodama, in reviewing the form, read
Ngo’s signature as belonging to another technician named Zammany Kline. Accordingly,
Kodama printed “Z. Kline” under Ngo’s signatures. Kodama later discovered the error and
sent a letter to CCSO, clarifying that although Ngo’s signature was correct, Kodama had
misread the signature and printed the wrong name underneath. Ngo confirmed during his
testimony that he was, in fact, the technician that performed the GC/MS testing on Porter’s
sample and that he placed his signature on the chain of custody form. Leikin testified that he
did not observe any fatal flaws in this case.
¶ 83 Based on this evidence, we again find no reversible error in the Board’s decision to credit
Pharmatech’s GC/MS results. The evidence makes clear that this was not a situation where
Kodama fabricated a name to insert in the chain of custody where none was present or
attempted to change the signature from the correct one to someone else’s to hide an error.
Rather, the undisputed evidence was that Ngo, who performed the GC/MS test, signed his
name on the chain of custody in the required spots. He did not, however, print or stamp his
name below or next to his signature. Thus, when Kodama reviewed the chain of custody form,
he misread the name and printed the incorrect one below Ngo’s signature. Upon realizing his
mistake, Kodama clearly addressed and corrected the issue by sending a letter to CCSO and
by including the letter in the litigation package. There is no evidence of an attempt to conceal
or deceive on the part of Kodama, and the correct signature was always on the chain of custody
form. Accordingly, we conclude that the Board did not err in considering Pharmatech’s GC/MS
results.
¶ 84 Even assuming that these alleged breaches of protocol rendered Pharmatech’s GC/MS
results invalid, the positive GC/MS results from ACL were properly reviewed and certified,
according to Youkilis, and Porter makes no arguments that ACL committed any breaches in
protocol. Accordingly, the Board’s determination that Porter violated CCSO policies is
sufficiently supported by ACL’s test results.
¶ 85 C. Litigation Package
¶ 86 Porter’s final contention on appeal is that the Board erred in admitting into evidence
Pharmatech’s litigation package pursuant to the business records exception to the hearsay rule.
Illinois Supreme Court Rule 236(a) (eff. Aug. 1, 1992) provides:
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“Any writing or record, whether in the form of any entry in a book or otherwise, made
as a memorandum or record of any act, transaction, occurrence, or event, shall be
admissible as evidence of the act, transaction, occurrence, or event, if made in the
regular course of any business, and if it was the regular course of the business to make
such a memorandum or record at the time of such an act, transaction, occurrence, or
event or within a reasonable time thereafter. All other circumstances of the making of
the writing or record, including lack of personal knowledge by the entrant or maker,
may be shown to affect its weight, but shall not affect its admissibility.”
An agency’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
Wilson v. Department of Professional Regulation, 344 Ill. App. 3d 897, 907 (2003). An abuse
of discretion occurs when no reasonable person would take the view adopted by the Board.
See Trettenero v. Police Pension Fund of the City of Aurora, 333 Ill. App. 3d 792, 801 (2002).
¶ 87 Aucoin testified that the documents in Pharmatech’s litigation package were documents
that Pharmatech “generates or receives or produces in the process of testing the sample” and
that such documents were regularly kept in the course of Pharmatech’s business. Porter does
not dispute that the documents in the litigation package were regularly kept in the course of
Pharmatech’s business. Instead, he argues that they were not admissible because the business
records exception is premised on the assumption that in creating business records, “the motive
for following a routine of accuracy is great and the motive to falsify nonexistent.” Kimble v.
Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 414 (2005). According to Porter, in this case,
the documents in Pharmatech’s litigation package—primarily test results and chain of custody
documents—were not accurate or valid and, thus, not admissible under the business records
exception.
¶ 88 First and foremost, Rule 236(a) specifically states that all other circumstances regarding
the making of documents, other than the fact that they were kept in the regular course of
business and were made at the time of the event or within a reasonable time thereafter, affect
only the weight to be given the records, not their admissibility. None of these contentions by
Porter relate to the issue of whether the documents in the litigation package were made in the
regular course of business or when the records were made. Therefore, pursuant to the explicit
language of Rule 236(a), none of these contentions, even if true, have any effect on the
admissibility of the documents under the business records exception. Rather, these contentions
only go to the weight to be given to the litigation package documents.
¶ 89 Nevertheless, even putting that aside, we disagree that these contentions rendered the
results inaccurate or invalid and, thus, the litigation package inadmissible.
¶ 90 In support of his claim that the documents in the litigation package were not accurate,
Porter again argues that Kodama “perpetuated a lie, fraud[,] and breach of drug screen
protocol” when he committed “the abomination of altering and manipulating the chain of
custody” by printing “Z. Kline” under Ngo’s signature on the internal chain of custody form.
Porter also argues that the documents were inaccurate because the test results were not
confirmed according to drug testing protocol. These are the same arguments Porter made in
support of his independent claim that the test results were invalid, which we addressed above.
For the same reasons that we rejected these contentions above, we also find that they do not
warrant a conclusion that the Board abused its discretion in admitting Pharmatech’s litigation
package under the business records exception.
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¶ 91 Porter also argues that Pharmatech’s test results were invalid because the initial GC/MS
results report had the wrong RT number on it, the sticker placed on the drug testing notification
form said “Bottle B (SPLIT)” when Porter only gave a single sample, the results from the retest
performed by ACL were higher than the results from Pharmatech, and the UPS tracking
information did not reflect the date, time, or location of the pickup of Porter’s sample and
instead reflected a date of November 15, 2013, when Porter did not provide a sample until
December 19, 2013. None of these contentions persuade us that the Board abused its discretion
in admitting the litigation package.
¶ 92 First, we have already discussed above Porter’s contentions regarding the effect of the
incorrect RT number. That reasoning applies with equal force here.
¶ 93 Second, Porter’s contention that the sticker on the drug notification form suggests that a
split sample was taken when Porter only gave a single sample is meritless. Porter asserts that
he gave a single sample and every witness who testified on the matter—both for Dart and
Porter—agreed. Thus, there is no dispute here as to whether he gave a single sample. More
importantly, the hearing testimony clearly established that the sticker was provided on a
generic form from Pharmatech. Although originally designed for situations where a single
sample was split into two bottles, CCSO employees clearly testified that because they did not
split samples, the sticker for Bottle A was placed on the specimen bottle, while the sticker for
Bottle B was placed on the drug testing notification form for the sole purpose of utilizing the
barcode, which matched the barcode on the specimen bottle. The “Bottle B (SPLIT)” language
that appeared on the sticker had no meaning to CCSO or its employees. There was absolutely
no evidence presented to suggest that Porter’s sample was split or that he gave more than one
sample. In addition, Porter offers no argument as to how, even if his specimen was split, a split
sample would affect the validity of Pharmatech’s test results.
¶ 94 Next, Porter takes issue with the fact that the results from the retest performed by ACL
came back significantly higher than the results produced by Pharmatech. Although Youkilis
and Bederka thought such a disparity was suspicious, Leikin and Keene did not, and Keene
testified that such disparities can result where the specimen is frozen and then tested without
being completely thawed or thoroughly mixed. It was the Board’s job to resolve this disparity,
and it apparently resolved it in favor of Dart. We cannot substitute our judgment for that of the
Board. See Rodriguez, 297 Ill. App. 3d at 916.
¶ 95 Finally, Porter complains that the UPS tracking information did not include the date, time,
or location of the pickup of Porter’s specimen. He further complains that the preprinted airbill
listed a date of November 15, 2013, when Porter did not give his specimen until December 19,
2013. Porter does not explain how these facts render the test results invalid. Moreover, even
though the UPS information does not reflect the date, time, or location of pickup, Hunter
testified that UPS picked up Porter’s specimen on December 19, 2013, from DTU. Moreover,
DTU’s affidavit reflects that the specimen was released at 5 p.m. on December 19, 2013. The
UPS documentation reflects, and it is undisputed, that Porter’s specimen was then received at
Pharmatech on December 23, 2013. Accordingly, the fact that the UPS documents, in
particular, do not list the date, time, or location of pickup is irrelevant and meaningless.
Similarly, given that everyone agrees that Porter did not give his specimen until December 19,
2013, and that Pharmatech received it on December 23, 2013, the fact that the airbill—which
was printed before the courier arrived to pick up the sample—read November 15, 2013, is
irrelevant.
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¶ 96 We note that in his reply brief, Porter for the first time on appeal, argues that the first page
of the litigation package, which details the procedures followed by Pharmatech in conducting
the drug tests constituted testimony by Kodama, the admission of which violated Porter’s rights
to due process to cross-examine Kodama. Because Porter did not articulate this argument in
his opening brief, and instead made it for the first time in his reply, it is forfeited. See Ill. S.
Ct. R. 341(h)(7) (eff. May 25, 2018) (“Points not argued [in the opening brief] are forfeited
and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”);
McGinley Partners, LLC, 2018 IL App (1st) 172976, ¶ 26 (“It is well settled that a party may
not raise an issue for the first time in its reply brief.”). Moreover, the same information that is
found on that first page was testified to by Aucoin, whom Porter had ample opportunity to
cross-examine.
¶ 97 Finally, we observe that even if Pharmatech’s litigation package should not have been
admitted into evidence, there remained in evidence the test results from ACL, which confirmed
that Porter tested positive for benzoylecgonine. Porter has made no contention that ACL’s test
results were inadmissible, were invalid, or did not support a conclusion that he violated the
Department’s policies on drug use. Therefore, any error in the admission of Pharmatech’s
litigation package was harmless. See Cairns v. Hansen, 170 Ill. App. 3d 505, 511 (1988) (“A
party is not entitled to reversal based on rulings on evidence unless the error was substantially
prejudicial and affected the outcome of the trial.”).
¶ 98 In sum, Porter’s arguments regarding the accuracy and validity of the records in
Pharmatech’s litigation package go entirely to the weight to be given to the documents by the
Board, not their admissibility under the business records exception. Moreover, even if they did
have some relevance to assessing the admissibility of the documents, we find them to be
without merit. Accordingly, we conclude that Porter has failed to demonstrate that the Board
abused its discretion in admitting Pharmatech’s litigation package under the business records
exception. Even if Porter had demonstrated error in its admission, that error was harmless.
¶ 99 Before closing, we pause to observe that, in this particular case, the alleged missteps in the
testing procedure did not affect the validity of the Pharmatech results, were corrected, or were
overcome by other evidence that Porter tested positive. This, however, will not always be the
case. We caution Dart and CCSO to be diligent in attending to the details—and to expect the
same from their contractors—in these situations where individuals’ livelihoods are at stake.
¶ 100 III. CONCLUSION
¶ 101 For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.
¶ 102 Affirmed.
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