Robert Rothfeder, MD

8                    ROBERT KEITH ROTHFEDER,
       9        CALLED BY THE DEFENDANT, HAVING BEEN FIRST DULY
      10         SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
      11                      DIRECT EXAMINATION
      12    BY MR. STIRBA:
      13    Q.  DOCTOR, WOULD YOU STATE YOUR FULL NAME AND SPELL YOUR
      14    LAST NAME, PLEASE.
      15    A.  ROBERT KEITH ROTHFEDER, THAT'S R-O-T-H-F-E-D-E-R.
      16    Q.  AND WHERE DO YOU RESIDE, SIR?
      17    A.  I RESIDE IN SANDY, UTAH.
      18    Q.  AND WHAT DO YOU DO FOR A LIVING?
      19    A.  I'M A PHYSICIAN.  I SPECIALIZE IN EMERGENCY MEDICINE.
      20    Q.  AND COULD YOU TELL US, PLEASE, YOUR EDUCATIONAL
      21    BACKGROUND IN THE FIELD OF MEDICINE.
      22    A.  YES.  FOLLOWING GRADUATION FROM COLLEGE AT RUTGERS
      23    UNIVERSITY IN 1969, I ATTENDED MEDICAL SCHOOL AT THE
      24    UNIVERSITY OF MINNESOTA MEDICAL SCHOOL IN TWIN CITIES.  I
      25    GRADUATED FROM MEDICAL SCHOOL IN 1974 AT WHICH TIME I


                                                                       3244



       1    RELOCATED TO SALT LAKE CITY.  AND IN SALT LAKE I DID AN
       2    INTERNSHIP AND RESIDENCY IN INTERNAL MEDICINE AT THE LDS
       3    HOSPITAL AND UNIVERSITY OF UTAH SYSTEM FROM 1974 THROUGH
       4    1977.  FROM 1977 ON I'VE BEEN IN PRIVATE PRACTICE.
       5    Q.  AND GENERALLY, WHAT DOES YOUR PRIVATE PRACTICE ENTAIL?
       6    A.  IT'S CHANGED SOMEWHAT OVER THE YEARS.  FROM '77 THROUGH
       7    '94 I PRACTICED EMERGENCY MEDICINE FULL-TIME AT THE LAKEVIEW
       8    HOSPITAL IN BOUNTIFUL.  AND EMERGENCY MEDICINE IN THAT
       9    SETTING CONSISTED OF A HOSPITAL BASED PRACTICE WHERE I WOULD
      10    SEE PATIENTS IN THE EMERGENCY DEPARTMENT WHO PRESENTED WITH
      11    USUAL EMERGENCIES.
      12    Q.  HAVE YOU PREVIOUSLY TESTIFIED IN COURTS IN THE STATE OF
      13    UTAH AS A MEDICAL EXPERT?
      14    A.  I HAVE IN THE STATE OF UTAH AND ELSEWHERE.  MOST OF MY
      15    TESTIMONY HAS BEEN WITH REGARD TO ISSUES SUCH AS CAUSE OF
      16    DEATH AND AFFECT OF INJURIES UPON LATER LIFE.
      17    Q.  DO YOU HAVE ANY BOARD CERTIFICATIONS?
      18    A.  BOARD CERTIFICATION IN EMERGENCY MEDICINE.
      19    Q.  AND PERHAPS SINCE YOU'VE STATED IT A FEW TIMES, MAYBE
      20    YOU COULD TELL US, PLEASE, WHAT EMERGENCY MEDICINE ENTAILS.
      21    A.  I CAN.  ACTUALLY, EMERGENCY MEDICINE IS A RELATIVELY NEW
      22    MEDICAL SPECIALTY.  WHEN I WAS IN RESIDENCY TRAINING THERE
      23    WAS NOT SUCH A SPECIALTY RECOGNIZED AND POSSIBLE EMERGENCY
      24    DEPARTMENTS WERE SERVICED BY PHYSICIANS IN A VARIETY OF
      25    SPECIALTIES WHO WOULD -- WHO WOULD ROTATE AND TAKE DAYS


                                                                       3245



       1    COVERING THE EMERGENCY ROOM.
       2         WELL, IT TURNED OUT THAT THAT WAS LESS THAN IDEAL.  YOU
       3    MIGHT HAVE A PEDIATRICIAN TAKING CARE OF AN ADULT SURGICAL
       4    PATIENT AND THAT TYPE OF THING.  SO IN ABOUT THE EARLY AND
       5    MID '70S IT BECAME RECOGNIZED THAT A BETTER SITUATION WOULD
       6    BE TO HAVE PHYSICIANS WHO SPECIALIZED IN EMERGENCY MEDICAL
       7    TREATMENT TO WORK SOLELY IN EMERGENCY DEPARTMENTS AND THAT'S
       8    EVOLVED OVER TIME TO THE CURRENT STATUS WHERE IN
       9    METROPOLITAN AREAS PHYSICIANS THAT WORK IN HOSPITAL
      10    EMERGENCY DEPARTMENTS SPECIALIZED IN THAT.
      11         THE TYPICAL -- THE TYPICAL PATIENTS THAT ONE WOULD SEE
      12    DURING AN AVERAGE SHIFT IN THE EMERGENCY DEPARTMENT WOULD BE
      13    ABOUT 50/50 IN TERMS OF PATIENTS WITH MEDICAL ILLNESSES
      14    VERSUS PATIENTS WHO HAVE SUFFERED INJURIES.  AND AMONG THOSE
      15    PATIENTS WITH MEDICAL ILLNESSES, IT WOULD PRETTY MUCH COVER
      16    THE SPECTRUM IN TERMS OF WHAT THEIR PROBLEM WAS.  THEY COULD
      17    BE HAVING HEART TROUBLE OR A STROKE OR A KIDNEY PROBLEM OR A
      18    LIVER PROBLEM OR PSYCHIATRIC PROBLEM.  THEY COULD BE MALE,
      19    FEMALE, YOUNG, ELDERLY, IN BETWEEN, BASICALLY ANYTHING THAT
      20    YOU COULD THINK OF THAT MAKES SOMEBODY ILL BRINGS THEM TO
      21    THE EMERGENCY ROOM.  SIMILARLY, THE TRAUMA PATIENTS WOULD BE
      22    A HOST OF THINGS ANYWHERE FROM PEOPLE CUTTING THEIR FINGERS
      23    WASHING DISHES WHO NEEDED TO BE SEWN UP, TO KIDS BREAKING
      24    THEIR WRISTS, TO LIFE-THREATENING MULTIPLE TRAUMA IN MOTOR
      25    VEHICLE ACCIDENTS.


                                                                       3246



       1         SO IN A NUTSHELL, THAT'S WHAT -- THAT'S WHAT THE
       2    PRACTICE OF EMERGENCY MEDICINE IS ABOUT.  AND DURING MY
       3    CAREER, I WOULD SAY THAT IN THE AVERAGE SHIFT THERE WOULD BE
       4    AT LEAST ONE TO TWO PATIENTS COMING IN WHO HAD
       5    LIFE-THREATENING PROBLEMS AND WHO WERE AT RISK OF DYING IN
       6    THE NEXT FEW MINUTES OR HOURS.
       7    Q.  HAVE YOU IN YOUR CAREER TREATED PEOPLE WITH ACUTE
       8    INJURIES OR ACUTE CIRCUMSTANCES?
       9    A.  WELL, THOUSANDS, TENS OF THOUSANDS MAYBE.
      10    Q.  AND COULD YOU TELL US, PLEASE, GENERALLY THE KINDS OF
      11    ACUTE CIRCUMSTANCES OR INJURIES THAT YOU HAVE ADDRESSED AS
      12    AN EMERGENCY PHYSICIAN?
      13    A.  CERTAINLY.  AMONG THE MEDICAL PATIENTS, THE MOST COMMON
      14    ACUTE CIRCUMSTANCES WOULD BE CARDIAC HEART PROBLEMS.  PEOPLE
      15    COMING IN WITH CHEST PAIN, MANY OF WHOM WOULD TURN OUT TO
      16    HAVE HAD HEART ATTACKS, SOME OF THOSE HEART ATTACKS WITH
      17    COMPLICATIONS.  THE OTHER PATIENTS PRESENTING WITH CHEST
      18    PAIN WOULD TURN OUT TO HAVE PNEUMONIAS, WHAT WE CALL
      19    PULMONARY EMBOLI, THAT IS BLOOD CLOTS THAT GO TO THE LUNG
      20    WHICH ARE LIFE-THREATENING, STROKES WHICH ARE ALSO
      21    LIFE-THREATENING ARE VERY COMMON IN THE SENIOR CITIZEN AGE
      22    GROUP.
      23         OTHER MEDICAL CONDITIONS THAT WERE COMMON WOULD BE
      24    PROBLEMS WITH DIABETES AND THE COMPLICATION THEREOF, ASTHMA,
      25    INTESTINAL PROBLEMS, ABDOMINAL PAIN AS A PRESENTING


                                                                       3247



       1    COMPLAINT IS PROBABLY ALMOST AS COMMON AS CHEST PAIN AND
       2    THOSE PATIENTS WOULD HAVE THINGS LIKE APPENDICITIS,
       3    GALLBLADDER DISEASE, ULCER DISEASE, BLEEDING ULCERS.  A
       4    NUMBER OF THESE PATIENTS WOULD BE IN POTENTIALLY
       5    LIFE-THREATENING SITUATIONS.  I MEAN, IT GOES ON AND ON.  I
       6    COULD SPEND A LOT OF TIME BUT THAT'S THE TYPE OF THING.
       7         MEDICALLY WE WOULD SEE ACUTE PSYCHIATRIC EMERGENCIES,
       8    SUICIDE ATTEMPTS WHERE PEOPLE TAKE OVERDOSES OF MEDICATION
       9    AND OTHER SUBSTANCES.  IN TERMS OF TRAUMA, LACERATIONS,
      10    FRACTURES, MULTIPLE TRAUMA, BLUNT TRAUMA TO THE CHEST OR
      11    ABDOMEN WHICH IS LIFE-THREATENING, PENETRATING TRAUMA TO THE
      12    CHEST OR ABDOMEN WHICH WOULD INCLUDE GUNSHOT WOUNDS, KNIFE
      13    WOUNDS, PENETRATING INJURIES FROM OTHER PROJECTILES, FROM
      14    MOTOR VEHICLE TRAUMA, HEAD INJURIES RESULTING IN
      15    UNCONSCIOUSNESS, COMA, ET CETERA, ET CETERA, BLEEDING INSIDE
      16    THE HEAD, SUBDURAL HEMATOMAS.  AND ON TOP OF THAT YOU HAVE A
      17    WHOLE HOST OF EMERGENCIES THAT ARE SEEN ONLY IN PEDIATRIC
      18    PATIENTS.  YOU SEE A NUMBER OF EMERGENCIES THAT ARE SEEN
      19    ONLY IN GYNECOLOGIC PATIENTS, MISCARRIAGES, VAGINAL
      20    BLEEDING, ET CETERA, ET CETERA, ET CETERA.
      21    Q.  IN THE CONTEXT OF YOUR PRACTICE, HAVE YOU CARED FOR AND
      22    TREATED A GERIATRIC POPULATION?
      23    A.  NOWADAYS IN THE EMERGENCY ROOM A LARGE PERCENTAGE OF
      24    PATIENTS COMING INTO THE EMERGENCY ROOM ARE GERIATRIC
      25    PATIENTS, PATIENTS WITH MULTIPLE EXISTING MEDICAL PROBLEMS;


                                                                       3248



       1    HEART PROBLEMS, DIABETES, OLD STROKES, INFECTIONS AND SO
       2    FORTH, WHO COME IN WITH SOME ACUTE CHANGE THAT REQUIRES
       3    EVALUATION SUCH AS A NEW COMPLAINT OF PAIN, CHANGE IN MENTAL
       4    STATUS, THAT TYPE OF THING.  AND ACTUALLY, FREQUENTLY THOSE
       5    PATIENTS PRESENTING WITH CHANGE IN MENTAL STATUS, CHANGE IN
       6    COMFORT ARE FOUND TO HAVE AN ACUTE MEDICAL PROBLEM WHICH HAS
       7    PRECIPITATED THE BEHAVIORAL CHANGE.
       8    Q.  DEFINE FOR US WHAT YOU MEAN BY AN ACUTE CHANGE OR AN
       9    ACUTE MEDICAL STATUS.
      10    A.  WELL, THE ACUTE BEHAVIORAL CHANGES THAT YOU'LL SEE WILL
      11    BE THAT THE PATIENT WILL COME FROM THE HOME OR NURSING HOME
      12    AND THEY'LL SAY THEY'RE NOT COMMUNICATING ANYMORE, YESTERDAY
      13    THEY WERE COMMUNICATIVE, WE COULD HAVE A CONVERSATION, TODAY
      14    THEY WON'T ANSWER ME OR THEY -- THEY ARE DISORIENTED, THEY
      15    ARE GOING THROUGH TIMES WHERE THEY DON'T KNOW WHERE THEY
      16    ARE, THEY WON'T EAT, THEY WON'T DRINK, THEY'VE SUDDENLY
      17    BECOME INCONTINENT OF URINE OR OF STOOL.  THEY BECOME --
      18    THEY BECOME NOT ALERT, NOT REACTING TO THEIR CIRCUMSTANCE
      19    AND THEN A HOST OF -- A HOST OF MEDICAL TYPES OF SIGNS AND
      20    SYMPTOMS; THEY ARE BREATHING RAPIDLY, THEY ARE MOANING IN
      21    PAIN, THEY ARE RUNNING A FEVER, THEIR PULSE IS RAPID,
      22    THEY'RE COUGHING, ET CETERA, ET CETERA.
      23    Q.  IS THERE -- IS THE GERIATRIC POPULATION PARTICULARLY
      24    PRONE IN YOUR EXPERIENCE TO ACUTE MEDICAL CHANGES?
      25    A.  VERY MUCH SO.


                                                                       3249



       1    Q.  AND WHY IS THAT DOCTOR?
       2    A.  WELL, THEY ARE FRAGILE.  THEY ARE FRAGILE, THEY ARE --
       3             MR. MAJOR:  WELL, YOUR HONOR, WE'RE GOING TO
       4    OBJECT.  WE WOULD LIKE AN OPPORTUNITY TO VOIR DIRE THIS
       5    WITNESS AND WE MAY WANT TO DO IT OUTSIDE OF THE JURY.  WE
       6    HAVE SOME CONCERNS ABOUT HIS QUALIFICATIONS AND ABOUT
       7    FOUNDATION THAT'S BEEN LAID HERE.
       8             THE COURT:  WELL, I DON'T KNOW IF ALL THE
       9    FOUNDATION HAS BEEN LAID.
      10             MR. STIRBA:  NO, WE'RE JUST LAYING IT, I THOUGHT.
      11             THE COURT:  WELL, DO YOU WISH --
      12             MR. STIRBA:  WELL, I WOULD CERTAINLY -- I MEAN, IF
      13    THEY WANT TO VOIR DIRE THE WITNESS, GO RIGHT AHEAD AT THIS
      14    POINT.
      15             THE COURT:  OKAY.
      16                     VOIR DIRE EXAMINATION
      17    BY MR. MAJOR:
      18    Q.  DOCTOR, YOU JUST -- YOU INDICATED YOU WORK IN THE
      19    EMERGENCY ROOM; IS THAT CORRECT?
      20    A.  PARDON ME?
      21    Q.  YOU ARE AN EMERGENCY ROOM PHYSICIAN?
      22    A.  CORRECT.
      23    Q.  AND THAT'S SOLELY WHAT YOUR EXPERTISE IS IS WORKING IN
      24    THE EMERGENCY ROOM?
      25    A.  I WOULDN'T SAY THAT'S SOLELY MY EXPERTISE.


                                                                       3250



       1    Q.  BUT IN WORKING IN THE EMERGENCY ROOM GENERALLY A PATIENT
       2    COMES IN WITH ACUTE PROBLEMS, YOU CURE THE ACUTE PROBLEM; IS
       3    THAT CORRECT?
       4    A.  YOU SOMETIMES CURE THEM AND YOU SOMETIMES DON'T.
       5    Q.  YOU DON'T.  BUT ONCE YOU'VE STABILIZED A PATIENT THEN
       6    THEY ARE SENT TO OTHER AREAS IN THE HOSPITAL LIKE THE I.C.U.
       7    OR SOME OTHER AREAS OF THE HOSPITAL OR SENT HOME; IS THAT
       8    CORRECT?
       9    A.  SOMETIMES.
      10    Q.  OKAY.  AND SOMETIMES YOU ARE ABLE TO CURE THEM AND THEY
      11    HAVE NO FURTHER PROBLEM; IS THAT CORRECT?
      12    A.  CORRECT.
      13    Q.  YOU DON'T HAVE ANY EXPERIENCE AS PART OF YOUR E.R.
      14    TRAINING OR YOUR EMERGENCY ROOM TRAINING, YOU DON'T DO ANY
      15    LONG-TERM CARE FOR PATIENTS, DO YOU?
      16    A.  NO, THAT'S INCORRECT.  ACTUALLY, MY PRESENT PRACTICE, I
      17    DIDN'T REALLY GET A CHANCE TO TALK ABOUT THAT, BUT FROM
      18    ABOUT '94 THROUGH THE PRESENT --
      19    Q.  BUT I'M JUST ASKING AS A AN EMERGENCY ROOM PHYSICIAN  --
      20             MR. STIRBA:  YOUR HONOR, HE WAS ANSWERING A
      21    QUESTION THAT COUNSEL PUT TO HIM AND I BELIEVE HE'S ENTITLED
      22    TO DO THAT.
      23             THE COURT:  ANSWER THE LAST QUESTION AND ASK THE
      24    NEXT QUESTION.
      25    Q.  (BY MR. MAJOR)  MY QUESTION WAS:  AS AN EMERGENCY ROOM


                                                                       3251



       1    PHYSICIAN, YOU DON'T ENGAGE IN LONG-TERM CARE?
       2    A.  THAT'S CORRECT, WHEN I'M PRACTICING IN THE EMERGENCY
       3    ROOM I DON'T ENGAGE IN LONG-TERM CARE.
       4    Q.  AND YOU DON'T ENGAGE IN GERIATRICS, IS THAT CORRECT, YOU
       5    DON'T HAVE TRAINING IN GERIATRICS CARE AS FAR AS DEALING
       6    SOLELY WITH OLDER PATIENTS?
       7    A.  WELL, AS I TESTIFIED, A LARGE PERCENTAGE OF THE CLINICAL
       8    WORK I DO INVOLVES ELDERLY PATIENTS.
       9    Q.  AND DOES THAT INVOLVE WITH TRAFFIC ACCIDENTS AND ACUTE
      10    TYPE SITUATIONS LIKE THAT?
      11    A.  SOME OF IT DOES.
      12    Q.  OKAY.  WELL, LET ME ASK YOU THIS BECAUSE I GUESS MR.
      13    STIRBA WILL, BUT I'LL SAVE HIM THE TROUBLE.  BUT WHAT HAVE
      14    YOU DONE AFTER 1994?
      15    A.  WELL, I'VE CONTINUED TO WORK IN THE EMERGENCY ROOM
      16    DEPARTMENT BUT I ALSO HAVE A PRIVATE PRACTICE IN SALT LAKE
      17    CITY WHERE I SEE PATIENTS IN MY OFFICE TWO DAYS A WEEK THAT
      18    I FOLLOW LONG TERM, MOST OF WHOM HAVE BEEN INJURED IN MOTOR
      19    VEHICLE ACCIDENTS AND HAVE CHRONIC PAIN PROBLEMS.
      20    Q.  RIGHT.  AND ACCORDING TO YOUR CURRICULUM VITAE, THAT IS
      21    BASICALLY WHAT YOU DEAL WITH IS AS INDICATED LIMITED TO THE
      22    EVALUATION AND REHABILITATION OF MOTOR VEHICLE-RELATED
      23    TRAUMA; IS THAT CORRECT?
      24    A.  THAT'S CORRECT.
      25    Q.  SO YOU ARE NOT TRAINED OR HAVE ANY EXPERIENCE IN


                                                                       3252



       1    GERIATRICS?
       2    A.  I'VE ALREADY TESTIFIED IN TERMS OF WHAT --
       3    Q.  WELL, I MEAN SPECIFIC TRAINING.  ANY EXPERTISE IN
       4    GERIATRICS?
       5    A.  I'VE TESTIFIED AS TO WHAT MY EXPERTISE IS.  IT'S NOT
       6    DIFFERENT THAN TAKING CARE OF MOST PATIENTS.
       7    Q.  DO YOU HAVE ANY TRAINING OR EXPERTISE IN PHARMACOLOGY?
       8    A.  I DO AS IT RELATES TO THE CLINICAL PRACTICE I'VE HAD, AS
       9    OTHER PHYSICIANS DO.
      10    Q.  AND ANY TRAINING -- AGAIN, NO TRAINING OR EXPERTISE IN
      11    PSYCHIATRY?
      12    A.  PSYCHIATRY IS PART OF WHAT I DO.
      13    Q.  BUT YOU ARE NOT A TRAINED PSYCHIATRIST?
      14    A.  I'M NOT -- I DON'T SPECIALIZE AS A PSYCHIATRIST, THAT'S
      15    CORRECT.
      16    Q.  AND YOU HAVE NO SPECIAL TRAINING OR EXPERTISE IN PAIN
      17    MANAGEMENT?
      18    A.  I WOULDN'T SAY THAT.
      19    Q.  WELL, OTHER THAN AS JUST A REGULAR DOCTOR IN YOUR
      20    REGULAR PRACTICE?
      21    A.  WELL, AS A REGULAR DOCTOR IN MY REGULAR PRACTICE I SEE
      22    REGULAR PATIENTS WHO HAVE CHRONIC PAIN.
      23    Q.  BUT YOU DON'T HOLD YOURSELF OUT AS AN EXPERT IN THAT
      24    AREA?
      25    A.  I PROBABLY DO.


                                                                       3253



       1             THE COURT:  OKAY.  MR. STIRBA?
       2             MR. MAJOR:  YOUR HONOR, BASED ON THAT, HIS
       3    CRITERIA, THE STATE BELIEVES HE'S NOT A QUALIFIED EXPERT TO
       4    BE TESTIFYING ABOUT THESE PATIENTS.  NUMBER ONE, THEY ARE
       5    GERIATRIC --
       6             THE COURT:  WELL, LET'S -- IF WE'RE GOING TO HAVE
       7    AN ARGUMENT, LADIES AND GENTLEMEN, I'M GOING TO HAVE YOU
       8    JUST TAKE A SHORT BREAK.  IF YOU WANT TO GO OUTSIDE, THAT'S
       9    FINE BUT BE IN A PLACE WHERE THE BAILIFF CALLS YOU THAT
      10    YOU'LL BE ABLE TO COME IN IN A FEW MINUTES.
      11         SO DURING THIS BREAK IT'S YOUR DUTY NOT TO CONVERSE
      12    AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO
      13    BE ADDRESSED BY ANY OTHER PERSON ON ANY SUBJECT OF THE
      14    TRIAL.  IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
      15    UNTIL THE CASE IS FINALLY SUBMITTED TO YOU.  SO IF YOU'LL --
      16    WE'LL CALL YOU WHEN WE'RE READY.
      17               (WHEREUPON THE JURY WAS EXCUSED.)
      18             THE COURT:  OKAY.  PLEASE BE SEATED.  THE RECORD
      19    WILL REFLECT THAT THE JURY HAS LEFT THE COURTROOM.  MR.
      20    MAJOR, IF YOU WOULD LIKE TO MAKE YOUR MOTION.
      21             MR. MAJOR:  YOUR HONOR, OUR MOTION, BASED ON THE
      22    VOIR DIRE AND WHAT WE HAVE HERE BASED ON THE WITNESS'S
      23    CURRICULUM VITAE AND SO FORTH, WE DON'T BELIEVE THAT HE
      24    QUALIFIES AS AN EXPERT IN THIS PARTICULAR CASE.  HE'S AN
      25    EMERGENCY ROOM PHYSICIAN.  AS AN EMERGENCY PHYSICIAN HE HAS


                                                                       3254



       1    VERY LITTLE EXPERTISE OR EXPERIENCE IN LONG-TERM CARE WHICH
       2    ALL OF THESE PATIENTS WERE.  NONE OF THESE PATIENTS WERE
       3    EMERGENCY ROOM TYPE CASES.  I MEAN, THERE'S BEEN NO EVIDENCE
       4    OTHER THAN MAYBE ELLEN ANDERSON THAT THEY CAME IN WITH ANY
       5    TYPE OF ACUTE PROBLEMS.  ALL OF THE PROBLEMS DEVELOPED LATER
       6    ON.
       7         HE HAS NO EXPERTISE IN GERIATRIC, PSYCHIATRY, HE WOULD
       8    NOT HAVE ANY EXPERTISE IN THE USE OF PSYCHOTROPIC DRUGS.  HE
       9    WOULD HAVE NO EXPERTISE IN PAIN MANAGEMENT OTHER THAN WHAT
      10    HE HAS DONE AS A GENERAL PHYSICIAN.  AND I THINK IS WHAT
      11    THIS COURT HAS BEEN HOLDING BOTH THE STATE'S SIDE AND IN THE
      12    OTHER WITNESSES IS THEY HAVE TO HOLD THEMSELVES OUT TO
      13    SOMETHING BEYOND JUST WHAT A NORMAL DOCTOR WOULD BE ABLE TO
      14    DO.  AND IN THIS PARTICULAR CASE, I DON'T THINK THAT THIS
      15    MR. ROTHFEDER -- OR DR. ROTHFEDER, I SHOULD SAY, I
      16    APOLOGIZE, HAS THAT EXPERTISE.  HE'S AN EMERGENCY ROOM
      17    PHYSICIAN, HE DEALS WITH ACUTE PATIENTS WHERE THEY COME IN,
      18    HE DEALS WITH THEM AND THEY ARE OUT.  IN HIS PRIVATE
      19    PRACTICE HE DEALS WITH TRAUMA, PEOPLE INVOLVED IN TRAFFIC
      20    ACCIDENTS.  NONE OF THESE PATIENTS HAD TRAFFIC ACCIDENT
      21    INJURIES, NONE OF THESE PATIENTS HAD THAT TYPE OF INJURY.
      22         THE TESTIMONY IS THESE PATIENTS CAME IN AND GRADUALLY
      23    OVER A PERIOD OF TIME THEIR HEALTH DETERIORATED AND WHAT
      24    CAUSED THAT DETERIORATION IS THE ISSUE BEFORE THIS JURY.
      25    BUT THIS DOCTOR DOES NOT HAVE THE EXPERTISE TO TESTIFY


                                                                       3255



       1    CONCERNING THOSE PARTICULAR ISSUES.
       2             THE COURT:  SO IS IT YOUR POSITION UNLESS A PERSON
       3    IS BOARD CERTIFIED IN GERIATRICS OR PSYCHIATRY THEY CAN NOT
       4    BE AN EXPERT WITNESS IN THIS CASE?
       5             MR. MAJOR:  WELL, THAT'S WHAT THE COURT -- WHEN WE
       6    HAD BEEN DEALING WITH SOME OF THE STATE'S WITNESSES, I
       7    BELIEVE THAT'S WHAT THE COURT HAS BASICALLY BEEN HOLDING
       8    WHEN WE BROUGHT IN SOME OF OUR DOCTORS --
       9             THE COURT:  WERE ALL OF YOUR EXPERTS GERIATRIC
      10    SPECIALISTS?
      11             MR. MAJOR:  WELL, WE DIDN'T CALL A GERIATRIC --
      12    FEHLAUER WAS OUR GERIATRIC SPECIALIST AND HE QUALIFIED
      13    THAT'S WHAT HE DID, THAT'S WHAT HIS CURRICULUM VITAE HAS
      14    TOTALLY DEALT WITH.  DR. HARE WAS A PHARMACOLOGIST OR
      15    TOXICOLOGIST, PAIN MANAGEMENT SPECIALIST, HE HAS ALL OF THE
      16    TRAINING, BOARD CERTIFICATIONS IN THOSE AREAS.
      17    DR. CROOKSTON WAS A PSYCHIATRIST WHO DEALT IN ALL THOSE
      18    AREAS.  AND I MAY BE MISTAKEN, BUT I RECALL THERE MAY HAVE
      19    BEEN SOME LIMITATIONS ON HOW FAR OUR -- MOTIONS BY THE
      20    DEFENSE ON HOW FAR THOSE EXPERTS THEMSELVES COULD GO BEYOND
      21    THEIR PARTICULAR FIELD.  I MEAN, WE DEALT WITH THOSE MOTIONS
      22    NUMEROUS TIMES AND NOW THE DEFENSE IS BRINGING A DOCTOR IN
      23    HERE WHO DOESN'T HAVE ANYWHERE NEAR THE QUALIFICATIONS BUT
      24    YET WE'RE JUST RAISING THOSE SAME ISSUES THAT THE DEFENSE
      25    DID.


                                                                       3256



       1             THE COURT:  LET'S FIND OUT WHAT THIS WITNESS CAN
       2    TESTIFY.  WHAT IS YOUR RESPONSE?
       3             MR. STIRBA:  WELL, FIRST OF ALL, YOUR HONOR, I
       4    DON'T THINK THE COURT HAS EVEN RULED WITH RESPECT TO
       5    LIMITING THE SCOPE OF ANY OF THE TESTIMONY OF THE STATE'S
       6    WITNESSES IN TERMS OF WHAT THEY TESTIFIED TO.
       7             THE COURT:  THE ONLY THING THAT I HAVE RULED ABOUT
       8    REGARDED THE -- WHETHER THERE WERE THINGS THAT WERE ASKED
       9    OPINIONS OUTSIDE OF WHAT WERE IN THEIR REPORTS.
      10             MR. STIRBA:  THAT'S EXACTLY RIGHT AND I THINK
      11    THAT'S THE ONLY OBJECTION YOU HEARD FROM THE DEFENSE.  THE
      12    ARGUMENTS MADE BY COUNSEL, AND I DID CROSS SOME OF THEIR
      13    WITNESSES ON THIS VERY ISSUE ABOUT THEIR EXPERTISE, I THINK
      14    IT'S ARGUMENT.  IT GOES TO WEIGHT, NOT NECESSARILY TO
      15    WHETHER HE'S QUALIFIED.
      16         HE'S GOING TO TESTIFY AS A CAUSE OF DEATH EXPERT, YOUR
      17    HONOR.  HE'S NOT TESTIFYING IN SOME GREATER VAIN THAN THAT.
      18    AND I THINK SOMEBODY WHO HAS HIS QUALIFICATIONS IS
      19    INORDINATELY QUALIFIED AND UNIQUELY QUALIFIED GIVEN THE
      20    FACTS OF THESE CASES TO TESTIFY AS TO CAUSE OF DEATH.  I
      21    MEAN OBVIOUSLY HE'S TREATED THOUSANDS OF PEOPLE IN VERY
      22    SIMILAR CIRCUMSTANCES AND I THINK THAT ANY OTHER ISSUE ABOUT
      23    WHETHER OR NOT HE HAS A PARTICULAR EXPERTISE IN MEDICINE OR
      24    HE DOESN'T OR WHAT HAVE YOU REALLY GOES TO CROSS-EXAMINATION
      25    AND GOES TO ARGUMENT AND GOES TO WEIGHT.


                                                                       3257



       1         HE'S ALREADY TESTIFIED HE IS QUALIFIED AS AN EXPERT
       2    BEFORE IN THE STATE OF UTAH.  I WILL GO ON TO ASK HIM IF
       3    HE'S QUALIFIED AS AN EXPERT SPECIFICALLY RELATING TO CAUSE
       4    OF DEATH IN OTHER COURTS IN THE STATE AND I'LL PROFFER TO
       5    THE COURT THAT HE WILL TESTIFY THAT HE HAS AND HE HAS THE
       6    REQUISITE MEDICAL EXPERIENCE AND TRAINING TO DO THIS.
       7         AND AS FAR AS SOME OF THE REPRESENTATIONS THAT WERE
       8    JUST MADE ABOUT HIS QUALIFICATIONS, I HEARD WHAT HE WAS
       9    ASKED AS YOUR HONOR DID AND I THINK HE ANSWERED THOSE
      10    QUESTIONS, THAT HE HAD ALL OF THOSE THINGS THAT ESSENTIALLY
      11    WERE ASKED OF HIM, EITHER IN HIS CLINICAL PRACTICE PRESENTLY
      12    OR IN HIS PRACTICE AS AN EMERGENCY ROOM PHYSICIAN AND
      13    EVERYTHING ELSE IS JUST ARGUMENT.
      14             THE COURT:  OKAY.  WHAT IS YOUR RESPONSE IF THIS
      15    PERSON IS ON CAUSE OF DEATH, NOT ON GERIATRICS OR PSYCHIATRY
      16    OR PAIN MANAGEMENT, BUT CAUSE OF DEATH?
      17             MR. MAJOR:  WELL, IF HE CAN DEAL WITH CAUSE OF
      18    DEATH, THE PROBLEM THAT I HAVE WITH THAT IS PART OF THE
      19    CAUSE OF DEATH AT LEAST FROM THE POINT OF VIEW FROM THE
      20    STATE WOULD BE THE PSYCHOTROPIC DRUGS AND THE OVERDOSING
      21    OF -- AND THE USE OF THE MORPHINE.  IF THIS WITNESS DOES NOT
      22    HAVE THE EXPERTISE AS A PSYCHIATRIST OR AN EXPERTISE IN THE
      23    AREA OF GERIATRICS IN DEALING WITH GERIATRICS, I DON'T
      24    BELIEVE HE CAN TESTIFY TO THE CAUSE OF DEATH IF HE DOESN'T
      25    KNOW THE AFFECTS OF CERTAIN PSYCHOTROPIC DRUGS.  AND I DON'T


                                                                       3258



       1    BELIEVE HE'S BEEN ABLE TO SAY HE'S HAD THE EXPERTISE IN
       2    DEALING WITH THAT PARTICULAR AREA.
       3             THE COURT:  WELL, ARE YOU CLAIMING THAT HE DOES NOT
       4    HAVE THE REQUISITE HELP UNDER RULE 702 TO ASSIST THE JURY ON
       5    CAUSE OF DEATH WHETHER HE CAN ASSIST THEM ON ALL THE OTHER
       6    ISSUES?
       7             MR. MAJOR:  YES.  BECAUSE, NUMBER ONE, YOUR HONOR,
       8    IN ORDER TO DO THAT, YOU HAVE TO BE ABLE TO HAVE THE
       9    EXPERTISE AND I DON'T BELIEVE HE'S BEEN ABLE TO EXPRESS THE
      10    FACT THAT HE HAS THAT EXPERTISE THAT IN FACT HE CAN HELP THE
      11    JURORS.
      12             THE COURT:  WELL, WHO DO YOU CLAIM CAN GIVE A CAUSE
      13    OF DEATH -- WHO CAN BE A CAUSE OF DEATH EXPERT IN THIS, JUST
      14    THE MEDICAL EXAMINER?
      15             MR. MAJOR:  NO.  YOU COULD HAVE SOMEONE WHO HAS
      16    EXPERTISE AND HAS HAD TRAINING AS DR. FEHLAUER DID IN THE
      17    GERIATRIC TREATING.  YOU CAN HAVE SOMEONE WHO CAN DISCUSS
      18    THE SPECIFIC DRUGS THAT WERE GIVEN IN THIS CASE.  DR. HARE
      19    WHO WAS A TOXICOLOGIST WHO CAN TALK ABOUT THE EFFECTS,
      20    CUMULATIVE EFFECTS THAT THE DRUGS HAVE ON THESE PATIENTS.
      21    YOU HAVE DR. CROOKSTON WHICH IS A PSYCHIATRIST WHO CAN DO
      22    THE SAME TYPE OF THING ON THOSE TYPE OF THINGS, SPECIFICALLY
      23    FOR PSYCHIATRY PATIENTS, SPECIFICALLY FOR ELDERLY PATIENTS
      24    AND SPECIFICALLY IN THE REALM OF THE USE OF THE DRUGS THAT
      25    ARE PRESENT.


                                                                       3259



       1             THE COURT:  OKAY.  SO A DOCTOR WHO WORKS WITH
       2    PEOPLE WHO COME TO THE EMERGENCY ROOM WHICH HE HAS TESTIFIED
       3    ARE SOMETIMES DISORIENTED, SOMETIMES HAVE PSYCHIATRIC
       4    PROBLEMS, HAVE OTHER PROBLEMS, PEOPLE WHO COME AND I ASSUME,
       5    WE HAVEN'T HEARD THIS YET, BUT I ASSUME PEOPLE DIE IN THE
       6    EMERGENCY ROOM, THAT HE HAS SEEN THOSE FROM WHATEVER CAUSES,
       7    WHETHER THEY WERE TRAUMATIC CAUSES OR MEDICAL CAUSES AS HE'S
       8    DEFINED THEM AND THAT PERSON KIND OF WORKS DAY IN AND DAY
       9    OUT WITH DEATH CANNOT TESTIFY AS TO CAUSE OF DEATH, IS
      10    THAT --
      11             MR. MAJOR:  NOT IN A SITUATION WHERE WE ARE WE HAVE
      12    HERE BECAUSE THESE ARE LONG-TERM PATIENTS WHO HAVE HAD
      13    TREATMENT OVER THE LONG TERM.  AND IN MOST EMERGENCY
      14    SITUATIONS THE SITUATION IS VERY ACUTE.  YOU BRING THE
      15    PATIENT IN, THE SITUATION IS ACUTE AT THAT POINT IN TIME,
      16    YOU TREAT IT OR DON'T TREAT IT, ONCE IT'S TREATED THE
      17    PATIENT GOES ON.
      18         OUR CONCERN IS HE HAS NO EXPERTISE IN BEING ABLE TO SAY
      19    OVER THE LONG-TERM CARE OF THESE PATIENTS, THIS IS THE
      20    SITUATION.  I MEAN, IF THIS WAS A SITUATION WHERE THE
      21    PATIENT HAD COME IN ON A AUTOMOBILE ACCIDENT, THE REST HOME
      22    HAD RUSHED THEM DOWN TO THE EMERGENCY ROOM OR THE UNIT HAD
      23    RUSHED THEM DOWN TO THE EMERGENCY ROOM AND SAID, HEY, WE
      24    THINK THIS AND THIS AND THIS HAS HAPPENED AND THEN THEY
      25    DIED, I THINK HE WOULD BE QUALIFIED.  BUT WHERE YOU HAVE


                                                                       3260



       1    PATIENTS WHO HAVE BEEN IN A UNIT FOR WEEKS AND ALL OF THESE
       2    OTHER GERIATRIC, ALL OF THESE AGE THINGS APPLY, I DON'T
       3    THINK THAT HE WOULD BE QUALIFY TO TESTIFY TO THAT, YOUR
       4    HONOR.
       5             THE COURT:  OKAY.  WELL, RULE 702 OF THE UTAH RULES
       6    OF EVIDENCE STATES IN REGARD TO TESTIMONY BY EXPERTS, "IF
       7    SCIENTIFIC, TECHNICAL OR OTHER SPECIALIZED KNOWLEDGE WILL
       8    ASSIST THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO
       9    DETERMINE A FACT IN ISSUE.  A WITNESS QUALIFIED AS AN EXPERT
      10    BY KNOWLEDGE, SKILL, EXPERIENCE, TRAINING OR EDUCATION MAY
      11    TESTIFY THERETO IN THE FORM AN OPINION OR OTHERWISE."
      12         AS TO HIS QUALIFICATIONS, WHAT FOUNDATION HAS BEEN LAID
      13    AND THE VOIR DIRE, I'M GOING TO OVERRULE THE OBJECTION.  I'M
      14    GOING TO ALLOW HIM TO TESTIFY AS TO CAUSE OF DEATH.  ALL THE
      15    THINGS THAT YOU BROUGHT OUT GO TO THE WEIGHT WHETHER THE
      16    JURY OUGHT TO REGARD OR DISREGARD HIS TESTIMONY.  BUT
      17    WHETHER HE HAS BACKGROUND AND EXPERIENCE IN CAUSE OF DEATH,
      18    I FIND THAT HE DOES.  SO I'LL ASK THE JURY -- THE BAILIFF TO
      19    BRING THE JURY BACK IN.
      20             MR. STIRBA:  BEFORE WE DO THAT, JUDGE, CAN I HAVE
      21    AN UNDERSTANDING NOW, ARE WE OKAY WITH THE BINDERS?
      22             MR. MAJOR:  I HAVE NO OBJECTION.  ARE WE ACTUALLY
      23    ADMITTING THEM?
      24             MR. STIRBA:  OH, NO, NO.  I'M JUST GOING TO USE
      25    THEM --


                                                                       3261



       1             THE COURT:  THEY ARE GOING TO BE HANDED OUT TO THE
       2    JURORS, COLLECTED AFTER HIS TESTIMONY NOT BE AN EXHIBIT.
       3             MR. STIRBA:  THAT'S RIGHT.  THAT'S EXACTLY CORRECT.
       4             THE COURT:  OKAY.  THAT'S THE BASIS.  IS THERE ANY
       5    PROBLEM WITH THAT?
       6             MR. MAJOR:  NO, NO, OBJECTION.
       7             MR. MAY:  SHOULD I JUST PUT THEM ON THE CHAIR
       8    BEFORE THEY COME IN?
       9             THE COURT:  THAT'S PROBABLY FINE AND YOU CAN
      10    EXPLAIN WHAT WE'RE DOING.
      11             MR. STIRBA:  YOUR HONOR, MAY I APPROACH?
      12             THE COURT:  THANK YOU.
      13          (WHEREUPON THE JURY ENTERED THE COURTROOM.)
      14             THE COURT:  PLEASE BE SEATED, LADIES AND GENTLEMEN.
      15    THE RECORD WILL REFLECT THAT THE JURY IS PRESENT, THERE HAVE
      16    BEEN DISTRIBUTED TO YOU SOME EXHIBITS THAT ARE GOING TO BE
      17    USED TO HELP YOU TO FOLLOW ALONG WITH THIS WITNESS'S
      18    TESTIMONY.  THEY ARE GOING TO BE USED FOR ILLUSTRATIVE
      19    PURPOSES.  YOU ARE GOING TO BE ABLE TO READ ALONG AS THIS
      20    WITNESS HAS TESTIFIED ON DIRECT AND CROSS-EXAMINATION AND
      21    THEN THEY'LL BE COLLECTED AFTER BUT RATHER THAN -- IS THIS
      22    TO AVOID SHOWING --
      23             MR. STIRBA:  RIGHT, I THINK IT EXPEDITES THE WHOLE
      24    PROCESS, YOUR HONOR.
      25             THE COURT:  ALL RIGHT.  SO THAT'S WHAT THOSE ARE


                                                                       3262



       1    THERE FOR.  ALL RIGHT.  IF YOU WOULD LIKE TO CONTINUE.
       2             MR. STIRBA:  THANK YOU.
       3                  DIRECT EXAMINATION, CONT'D
       4    BY MR. STIRBA:
       5    Q.  DOCTOR, THE QUESTION I HAD POSED TO YOU WAS:  THE
       6    GERIATRIC POPULATION, IS IT PARTICULARLY PRONE TO THE
       7    DEVELOPMENT OF ACUTE MEDICAL PROBLEMS?
       8    A.  AND I ANSWERED THAT THAT'S CORRECT.
       9    Q.  YES.  AND WOULD YOU TELL US, PLEASE, WHY THAT IS?
      10    A.  YES.  THIS POPULATION OF PATIENTS IS TYPICALLY VERY
      11    FRAGILE DUE TO BOTH ADVANCED AGE AND TO COEXISTENT DISEASE
      12    AND MANY OF THESE PATIENTS WILL HAVE MULTIPLE ORGAN SYSTEM
      13    DISEASE.  FOR INSTANCE, THEY'LL HAVE HEART PROBLEMS, THEY'LL
      14    HAVE CENTRAL NERVOUS SYSTEM PROBLEMS FROM THINGS LIKE
      15    PREVIOUS STROKES, DEMENTIA, ALZHEIMER'S AND SO FORTH.
      16    THEY'LL HAVE CIRCULATORY PROBLEMS IN ADDITION TO THEIR
      17    HEART.  THEIR BLOOD VESSELS GOING TO THE VARIOUS PARTS OF
      18    THE BODY WILL BE NARROWED FROM DISEASE.  THEY CAN HAVE
      19    GASTROINTESTINAL PROBLEMS, KIDNEY PROBLEMS.
      20         MOST ELDERLY PATIENTS HAVE ALTERED IMMUNE SYSTEMS SO
      21    THAT THEY RESPOND DIFFERENTLY TO INFECTION THAN YOUNGER
      22    PATIENTS.  AND IN GENERAL, COEXISTENT CONDITIONS THAT WOULD
      23    BE TRIVIAL OR CERTAINLY NOT REQUIRE IMMEDIATE MEDICAL CARE
      24    IN YOUNGER PATIENTS, THINGS LIKE BLADDER INFECTIONS AND
      25    DEHYDRATION, CAN CAUSE EXTREME CHANGES IN THE GERIATRIC


                                                                       3263



       1    POPULATION AND IN FACT BE LIFE-THREATENING AND
       2    THAT'S....THAT TYPE OF A PHENOMENON IS SEEN ALL THE TIME.
       3    Q.  IS THERE A RELATIONSHIP BETWEEN THE WORK THAT YOU HAVE
       4    DONE IN YOUR MEDICAL PRACTICE AND YOUR EXPERTISE IN
       5    DETERMINING CAUSE OF DEATH?
       6    A.  WELL, I BELIEVE SO.  UNFORTUNATELY IN AN EMERGENCY ROOM
       7    PRACTICE PATIENTS DIE IN THE EMERGENCY ROOM.  PATIENTS DIE
       8    MINUTES OR HOURS AFTER BEING ADMITTED TO THE HOSPITAL FROM
       9    THE EMERGENCY ROOM.  AND WHEN THE PATIENT COMES INTO THE
      10    EMERGENCY ROOM WITH A PARTICULAR PROBLEM, THE WAY WE START
      11    IS TO TAKE A HISTORY AND INVESTIGATE WHAT THEIR STATUS IS
      12    BEFORE THEY ARRIVE, WHAT THEIR KNOWN MEDICAL PROBLEMS ARE,
      13    WHAT MEDICATIONS THEY ARE TAKING, WHAT THEIR RECENT SYMPTOMS
      14    ARE.  THEN ONE EXAMINES THE PATIENT, DOES TESTS AND PUTS
      15    EVERYTHING TOGETHER TO TRY TO DETERMINE WHAT COMBINATION OF
      16    CIRCUMSTANCES HAS LED TO THE ACUTE EVENT AND THE --
      17    SOMETIMES THE ACUTE EVENT RESULTS IN DEATH, AND IN THOSE
      18    CIRCUMSTANCES, IT'S NECESSARY FOR US TO MAKE A DIAGNOSIS OR
      19    AT LEAST A DIFFERENTIAL DIAGNOSIS.
      20         A DIFFERENTIAL DIAGNOSIS IS TO LIST THE THINGS THAT
      21    POSSIBLY CAN BE CAUSING OR CONTRIBUTING TO THE ACUTE EVENT.
      22    AND, IN FACT, IT IS NOT AT ALL UNCOMMON FOR US TO BE ASKED
      23    TO CERTIFY THE DEATH AND SIGN THE DEATH CERTIFICATE WHEN THE
      24    PATIENT EXPIRES IN THE EMERGENCY ROOM AND I'VE DONE THAT, IF
      25    NOT HUNDREDS OF TIMES, MANY, MANY DOZENS OF TIMES WHERE I'VE


                                                                       3264



       1    BEEN THE ONE TO CERTIFY THE CAUSE OF DEATH.
       2    Q.  HAVE YOU PREVIOUSLY BEEN QUALIFIED AS AN EXPERT IN THE
       3    COURTS IN UTAH ON THE QUESTION OF CAUSE OF DEATH?
       4    A.  I HAVE.
       5    Q.  AND COULD YOU TELL US, PLEASE, HOW YOU GO ABOUT
       6    GENERALLY DETERMINING A CAUSE OF DEATH?
       7    A.  IN THE SITUATION YOU JUST REFERENCED AS AN EXPERT?
       8    Q.  YES.
       9    A.  YES.  THE WAY THAT'S TYPICALLY DONE IS TO GO THROUGH ALL
      10    OF THE MEDICAL RECORDS AND OTHER DOCUMENTS THAT REFERENCE
      11    THE CASE.  SO WHAT I WOULD DO WOULD BE TO LOOK AT THE
      12    MEDICAL RECORDS FROM THE TREATMENT FOR WHATEVER THE ACUTE
      13    EVENT WAS, LOOK AT THE MEDICAL RECORDS THAT CAN BE OBTAINED
      14    REGARDING ALL OF THE PAST MEDICAL HISTORY, AS FAR BACK AS
      15    THEY CAN BE OBTAINED, TO REVIEW -- REVIEW TESTS AND X-RAYS
      16    AND OTHER DIAGNOSTIC PROCEDURES.  AND FREQUENTLY IT'S
      17    POSSIBLE TO ACTUALLY HAVE THE -- TO HAVE THE X-RAY FILMS OR
      18    THE SCANS OR THOSE TYPES OF MATERIALS TO ACTUALLY PHYSICALLY
      19    REVIEW IN ADDITION TO THE DICTATED REPORT BY WHATEVER
      20    RADIOLOGIST REVIEWED THAT.
      21         IF AN AUTOPSY HAS BEEN PERFORMED ON THE DECEDENT, THEN
      22    I REVIEW THE AUTOPSY REPORT.  AND IN CERTAIN CIRCUMSTANCES
      23    THERE IS INVESTIGATIVE REPORTS AND OTHER MATERIALS THAT WILL
      24    ASSIST PIECING TOGETHER HISTORICAL DATA UPON WHICH IT'S
      25    POSSIBLE TO FORM AN OPINION.  ONCE IN A WHILE, WHEN


                                                                       3265



       1    APPROPRIATE, I'LL INTERVIEW PEOPLE THAT WERE INVOLVED IN THE
       2    CASE IF THEY HAVE SOMETHING TO CONTRIBUTE BEYOND THE REVIEW
       3    OF THE RECORDS, BUT THAT'S -- IT VARIES A LOT CASE BY CASE,
       4    BUT THAT IN ESSENCE IS THE PROCESS THAT I GO THROUGH IN
       5    FORMING AN OPINION IN TERMS OF CAUSE OF DEATH.
       6    Q.  IN THIS PARTICULAR CASE, YOU HAVE BEEN RETAINED AS AN
       7    EXPERT TO RENDER AN OPINION CONCERNING CAUSE OF DEATH; IS
       8    THAT RIGHT?
       9    A.  THAT'S CORRECT.
      10    Q.  AND YOU ARE AWARE THAT AN AUTOPSY OR AUTOPSIES HAVE BEEN
      11    DONE AND REPORTS CREATED BY THE MEDICAL EXAMINER'S OFFICE?
      12    A.  I ATTENDED TWO OF THE AUTOPSIES PERSONALLY AND REVIEWED
      13    ALL FIVE OF THE AUTOPSY REPORTS GENERATED BY THE UTAH STATE
      14    MEDICAL EXAMINER.
      15    Q.  AND TELL US WHAT SIGNIFICANCE THE ATTENDANCE AT THE
      16    AUTOPSIES AND THE REVIEW OF THE REPORTS HAS IN TERMS OF YOUR
      17    OPINION AS TO CAUSE OF DEATH.
      18    A.  THE ATTENDANCE AT THE AUTOPSY AND THE REVIEW OF THE
      19    REPORTS ALLOWS ME TO LOOK AT SPECIFICALLY WHAT THE ANATOMIC
      20    FINDINGS WERE AT AUTOPSY.  SO THAT BY ATTENDANCE, I CAN
      21    ACTUALLY LOOK AND BY REVIEW OF THE REPORTS, I CAN SEE
      22    SECONDHAND WHAT THE STATUS OF THE VARIOUS ORGANS AND TISSUES
      23    WERE AT AUTOPSY.  FOR INSTANCE, WHAT THE CONDITION OF THE
      24    HEART WAS, WAS IT NORMAL, WAS IT ABNORMAL, WAS THERE AN
      25    ARTIFICIAL VALVE IN THERE, WERE THE CORONARY ARTERIES


                                                                       3266



       1    NORMAL, WHAT'S THE CONDITION OF THE BRAIN, WHAT'S THE
       2    CONDITION OF THE LUNGS, WHAT'S THE CONDITION OF ALL OF THE
       3    OTHER ORGANS, WHAT'S THE CONDITIONS OF THE SKELETAL SYSTEM.
       4         AND SO BASICALLY WHAT YOU ARE DOING IS IS YOU ARE --
       5    YOU'VE GOT THE OPPORTUNITY TO LOOK DIRECTLY AT WHAT THE
       6    STATUS OF THE PATIENT IS ANATOMICALLY AND THAT'S A LITTLE
       7    BIT DIFFERENT THAN PHYSIOLOGICALLY.  PHYSIOLOGICALLY MEANS
       8    HOW THE BODY, THE MACHINE FUNCTION AND THERE ARE CERTAIN
       9    THINGS YOU CAN DETERMINE BY AUTOPSY REGARDING PHYSIOLOGY AND
      10    OTHERS YOU CAN'T.  BUT THE AUTOPSY BASICALLY GIVES YOU THE
      11    OPPORTUNITY TO REVIEW THE STATUS OF THE ANATOMY OF THE ORGAN
      12    AND TISSUES OF THE DECEDENT.
      13    Q.  CONCERNING THE FIVE PATIENTS IN THIS CASE, HAVE YOU
      14    REVIEWED ANY MEDICAL HISTORY PRIOR TO THEIR ADMISSION TO THE
      15    DAVIS HOSPITAL?
      16    A.  I'VE REVIEWED A RATHER LARGE FILE OF DOCUMENTS ON THE
      17    FIVE PATIENTS COMBINED.
      18    Q.  COULD YOU TELL US, PLEASE, IS THE REVIEW OF MEDICAL
      19    HISTORY IMPORTANT FOR PURPOSES OF DETERMINING CAUSE OF
      20    HEALTH?
      21    A.  IT IS.
      22    Q.  AND TELL US, PLEASE, WHY.
      23    A.  THE REVIEW OF THE MEDICAL HISTORY GIVES YOU AN IDEA
      24    BEYOND WHAT CAN BE DETERMINED FROM THE ANATOMIC FINDINGS AT
      25    AUTOPSY IN TERMS OF FUNCTIONALLY WHAT'S GONE ON WITH THESE


                                                                       3267



       1    PATIENTS IN THE PAST.  WHAT KIND OF DISEASES THEY'VE
       2    SUFFERED, WHAT KIND OF SURGERIES THEY'VE HAD, WHAT KIND OF
       3    PROBLEMS HAVE THREATENED THEIR HEALTH AND WHETHER THEY
       4    RECOVERED FROM THOSE COMPLETELY OR PARTIALLY OR NOT AT ALL.
       5    THE MEDICAL HISTORY AND THE RECORDS THAT REFLECT THAT REALLY
       6    GIVES YOU THE BEST PICTURE OF WHAT THEIR STATE OF HEALTH WAS
       7    OVER THE PERIOD OF TIME REFLECTED BY THE RECORDS.
       8    Q.  HAVE YOU HAD EXPERIENCE IN THE USE OF MORPHINE?
       9    A.  IT WOULD BE A RARE DAY IN MY HOSPITAL PRACTICE THAT I
      10    DIDN'T HAVE THE OPPORTUNITY TO USE MORPHINE ON A PATIENT.
      11    Q.  AND HAVE YOU -- IN TERMS OF YOUR OPINION, HAVE YOU
      12    CONSIDERED THE EFFECTS OR LACK THEREOF OF MORPHINE
      13    CONCERNING THESE FIVE PATIENTS?
      14    A.  I HAVE.
      15    Q.  AND COULD YOU GENERALLY JUST TELL US, PLEASE, THE
      16    RELATIONSHIP OF MORPHINE IN TERMS OF YOUR EVALUATION OF
      17    THEIR CIRCUMSTANCE?
      18             MR. MAJOR:  WELL, YOUR HONOR, WE'RE GOING TO OBJECT
      19    IF WE'RE TALKING ABOUT THEIR OVERALL CIRCUMSTANCES OR ARE WE
      20    TALKING ABOUT THEIR CAUSE OF DEATH?
      21             MR. STIRBA:  I CAN REPHRASE IT, YOUR HONOR.
      22             THE COURT:  OKAY.
      23    Q.  (BY MR. STIRBA)  IN TERMS OF THEIR CAUSE OF DEATH.
      24    A.  I SPECIFICALLY LOOKED AT THE RELATIONSHIP OF THE
      25    MORPHINE THAT THEY RECEIVED AND THEIR DEATHS.


                                                                       3268



       1    Q.  YOU REFERENCED YOUR EXPERIENCE IN THE USE OF MORPHINE,
       2    COULD YOU BE MORE SPECIFIC GENERALLY HOW YOU HAVE USED IT
       3    AND YOUR EXPERIENCE WITH IT?
       4    A.  YES.  MORPHINE IS THE...SOME PEOPLE MIGHT REFER TO IT AS
       5    THE GOLD STANDARD BUT IT'S THE TIME-HONORED DRUG FOR RELIEF
       6    OF PAIN AND WE USE IT IN A WIDE VARIETY OF CIRCUMSTANCES FOR
       7    VARIOUS PATIENT PROBLEMS.  AND, FOR INSTANCE, MORPHINE --
       8    MORPHINE IS GIVEN ALMOST INVARIABLY IN PATIENTS WHO ARE
       9    SUFFERING HEART ATTACKS.
      10             MR. MAJOR:  YOUR HONOR, I THINK THIS GOES BEYOND
      11    THE SCOPE OF THE QUESTION.
      12             THE COURT:  DO YOU WANT TO --
      13             MR. STIRBA:  SURE.
      14    Q.  (BY MR. STIRBA)  HOW IS IT USED, DOCTOR, HOW IS
      15    MORPHINE USED?
      16    A.  IT'S USED FOR PAIN RELIEF IN SITUATIONS THAT REQUIRE IT.
      17    Q.  FOR EXAMPLE, IS IT USED IN CERTAIN CIRCUMSTANCES
      18    CONCERNING CARDIAC DYSFUNCTION?
      19    A.  IT IS.  IT'S INVARIABLY USED WHEN PATIENTS ARE SUFFERING
      20    A HEART ATTACK AND IT'S USED ACTUALLY FOR TWO PURPOSES TO --
      21    IT RELIEVES THE PAIN AND IT PRODUCES -- MORPHINE HAS A
      22    CERTAIN EUPHORIC EFFECT.  PATIENTS SUFFERING A HEART ATTACK
      23    ARE UNDER A SEVERE AMOUNT OF BOTH PHYSICAL AND EMOTIONAL
      24    STRESS BOTH OF WHICH CONTRIBUTE TO THE WORKLOAD ON THE
      25    DAMAGED HEART, AND MORPHINE IS USED SPECIFICALLY TO RELIEVE


                                                                       3269



       1    THE PAIN AND THE STRESS ASSOCIATED WITH THAT ACUTE HEART
       2    CONDITION.
       3    Q.  NOW, DOCTOR, UP THERE IN FRONT OF YOU YOU HAVE FIVE
       4    BINDERS WHICH ARE THE EXHIBITS IN THIS CASE.  THEY ARE THE
       5    MEDICAL RECORDS FOR EACH ONE OF THE PATIENTS AND YOU ALSO
       6    HAVE IN FRONT OF YOU A WHITE BINDER.
       7    A.  I DO.
       8    Q.  GENERALLY, COULD YOU TELL US, PLEASE, IN TERMS OF THE
       9    WHITE BINDER, WHAT IS CONTAINED IN IT?
      10    A.  THE WHITE BINDER CONTAINS PORTIONS OF MEDICAL RECORDS
      11    FROM EACH OF THE FIVE PATIENTS THAT ARE INVOLVED IN THIS
      12    CASE.
      13    Q.  AND WHAT RELEVANCY DO THOSE PORTIONS OF THE MEDICAL
      14    EXHIBITS HAVE IN TERMS OF THE OPINION THAT YOU ARE ABOUT TO
      15    RENDER?
      16    A.  THEY ARE RELEVANT BOTH IN TERMS OF THE PRE-EXISTING
      17    MEDICAL CONDITIONS THAT WERE SUFFERED BY THESE PATIENTS
      18    WHICH I'VE TESTIFIED I TOOK INTO ACCOUNT IN FORMING MY
      19    OPINIONS, AND THEY ALSO REFERENCE EVENTS THAT WERE GOING ON
      20    DURING THE HOSPITALIZATIONS AT THE DAVIS HOSPITAL LEADING UP
      21    TO THE DEMISE OF THESE PATIENTS.
      22    Q.  I WANT TO DIRECT YOUR ATTENTION TO PATIENT ELLEN
      23    ANDERSON WHICH IS THE FIRST TAB IN THE BINDER.
      24    A.  OKAY.
      25             MR. MAJOR:  YOUR HONOR, I HATE TO INTERRUPT AND I


                                                                       3270



       1    DO APOLOGIZE TO THE COURT.  I'VE HAD A CHANCE TO LOOK AT THE
       2    BINDER AND WE DO HAVE SOME PROBLEMS WITH THAT BINDER THAT WE
       3    WOULD LIKE TO ADDRESS BEFORE WE GET INTO IT TOO FAR.
       4             THE COURT:  OKAY.  THEN YOU GET ANOTHER BREAK AND
       5    THINK OF THIS AS YOUR LAST BREAK FOR THE MORNING AND SO WHY
       6    DON'T YOU JUST LEAVE THE BINDERS AND YOUR NOTE PADS JUST ON
       7    YOUR CHAIRS.
       8         DURING THIS TIME, IT'S YOUR DUTY NOT TO CONVERSE AMONG
       9    YOURSELVES OR TO CONVERSE WITH OUR ALLOW YOURSELVES TO BE
      10    ADDRESSED BY ANY OTHER PERSON ON ANY SUBJECT OF THE TRIAL
      11    AND IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
      12    THE CASE IS FINALLY SUBMITTED TO YOU, SO IF YOU WILL TAKE A
      13    BREAK AND THEN WHY DON'T WE HAVE YOU COME BACK AT 11.
      14               (WHEREUPON THE JURY WAS EXCUSED.)
      15             THE COURT:  ALL RIGHT.  PLEASE BE SEATED.  THE
      16    RECORD WILL REFLECT THE JURY HAS LEFT THE COURTROOM.  OKAY,
      17    WHAT IS THE PROBLEM?
      18             MR. MAJOR:  YOUR HONOR, THE PROBLEM IS SOME OF THE
      19    RECORDS THAT ARE CONTAINED IN THIS BINDER ARE BEYOND THE
      20    SCOPE OF WHAT WAS GIVEN TO US IN THE DOCTOR'S PROFFER, I
      21    GUESS YOU'D SAY.  IF I HAVE A COPY OF WHAT DR. ROTHFEDER
      22    PROVIDED US, HE SAID ALL THE PATIENTS UNDER THE CARE OF DR.
      23    WEITZEL AT NORTH DAVIS HOSPITAL GEROPSYCH UNIT FROM
      24    DECEMBER 1995 AND JANUARY 1996.  INCLUDED IN THE MEDICAL
      25    RECORDS FOR EACH PATIENT ARE ADMISSIONS AND DISCHARGE


                                                                       3271



       1    SUMMARIES, PHYSICIAN'S ORDERS AND PROGRESS NOTES, NURSES'
       2    NOTES, CONSULTATION REPORTS, MEDICATION SUMMARIES AND
       3    MEDICAL DIRECTIVES, MASTER CARE PLANS AN HE GOES ON.
       4    THERE'S NOTHING HERE INDICATING THAT HE WAS OR WAS INTENDING
       5    TO REVIEW ANY OTHER RECORDS OUTSIDE OF THE HOSPITAL.
       6         OUR PROBLEM IS THAT THE ELLEN ANDERSON, I WAS JUST
       7    LOOKING AT THIS, YOUR HONOR, THERE IS MEDICAL RECORDS FROM
       8    DR. WILDING'S OFFICE IN BRIGHAM CITY THAT WERE NOT PART OF
       9    THE RECORDS THAT WERE AT THE DAVIS NORTH HOSPITAL.  IF WE
      10    HAD KNOWN THIS DOCTOR WAS GOING TO TESTIFY TO THESE THINGS,
      11    WE WOULD HAVE HAD AN OPPORTUNITY TO CALL DR. KELLER.
      12    BECAUSE ONE OF THE THINGS THAT'S LISTED IN HERE IS THE LAST
      13    THING WE TALKED ABOUT EARLIER WHERE THEY HAD GIVEN ELLEN
      14    ANDERSON AN X-RAY AND SAID THERE WAS A POSSIBLE TUMOR ON HER
      15    LUNG.  IF WE HAD KNOWN THAT DR. ROTHFEDER WAS GOING TO BE
      16    TESTIFYING ABOUT THAT AND USING THAT AS PART OF HIS REASON
      17    FOR DETERMINING DEATH, WE WOULD HAVE CALLED DR. KELLER AS
      18    PART OF OUR CASE IN CHIEF AND HAD HIM ACTUALLY CLARIFY WHAT
      19    THAT NOTE MEANS.  WE'RE BASICALLY HERE ON SURPRISE.  BASED
      20    ON THE RECORD THAT WE HAD, WE ASSUMED THE ONLY RECORDS HE
      21    HAS REVIEWED WERE THE RECORDS FROM DAVIS NORTH MEDICAL.
      22             THE COURT:  OTHER THAN WHAT YOU'VE JUST TALKED
      23    ABOUT ELLEN ANDERSON, IS THERE ANY OTHER --
      24             MR. MAJOR:  I HAVE JUST LOOKED THROUGH HERE, YOUR
      25    HONOR, AND APPARENTLY THERE'S A NUMBER OF OTHERS.  IF I


                                                                       3272



       1    MIGHT JUST FLIP TO HERE REAL QUICK.  IF THE COURT LOOK UNDER
       2    JUDITH LARSEN I BELIEVE THERE'S SOME THAT ARE MARKED C.H.
       3    WHICH I BELIEVE IS FROM COTTONWOOD HOSPITAL.  THERE'S SOME
       4    MEDICAL RECORDS FROM N.H. IN ENNIS ALLDREDGE'S FILE, AND SO
       5    WE JUST FEEL THAT BASED ON THE COURT'S RULINGS IN THE PAST
       6    ON GOING BEYOND THE SCOPE OF WHAT THE EXPERT HAS PROVIDED,
       7    THAT THIS IS BEYOND THE SCOPE.
       8             THE COURT:  OKAY.  YOUR RESPONSE?
       9             MR. STIRBA:  YES.  I'M NOT SURE WHAT BEYOND THE
      10    SCOPE MEANS IN THIS CONTEXT.  EVERYTHING IN THE BINDER,
      11    JUDGE, IS IN EVIDENCE IN THIS COURTROOM.  IN FACT, MANY OF
      12    THESE VERY SAME DOCUMENTS HAVE BEEN REFERRED TO WITH RESPECT
      13    TO TREATING PHYSICIANS AND THE STATE'S OWN EXPERTS.  THIS IS
      14    ACTUALLY -- THESE ARE EXHIBITS IN THIS COURTROOM.  I NEVER
      15    UNDERSTOOD THAT THE COURT SAID THAT THE EXPERT HAD TO TELL
      16    COUNSEL EACH AND EVERY DOCUMENT THAT THEY WERE GOING TO
      17    REVIEW, MUCH LESS AN EXHIBIT IN THIS CASE FOR PURPOSES OF
      18    ASSISTING WITH THEIR OPINION.
      19         AND IN FACT, YOU MAY RECALL THAT A NUMBER OF THE
      20    EXPERTS FROM THE STATE TESTIFIED ABOUT EITHER LOOKING AT
      21    HISTORICAL RECORDS OR NOT LOOKING AT HISTORICAL RECORDS.
      22    AND, QUITE FRANKLY, THERE ISN'T REALLY ONE EXPERT THAT HAS,
      23    WITH ANY GREAT DEAL SPECIFICITY, EVER ADDRESSED PRECISELY
      24    WHAT THEY WERE LOOKING AT.  IN FACT, WE HAVE HEARD TESTIMONY
      25    FROM THE STATE'S EXPERTS ABOUT DOCUMENTS -- AND SEE THIS IS


                                                                       3273



       1    THE PROBLEM.
       2         I'M DEALING WITH THE EVIDENCE.  I'M NOT DEALING WITH
       3    COMING IN THE COURTROOM, YOU KNOW, ON THE DAY OF THE -- ON
       4    THE DAY OF THE HEARING AND STICKING THESE THINGS IN FRONT OF
       5    MY FACE, WHICH IS WHAT HAPPENED WITH THEIR EXPERTS AND
       6    FEHLAUER COMES IN WITH A GERIATRIC DOSAGE HANDBOOK WHICH
       7    ISN'T IN HIS REPORT, HE NEVER TOLD ME ABOUT IT AND THEY COME
       8    IN WITH THESE DEMONSTRATIVE AIDS AND DO YOU SEE ME GET TOO
       9    EXCITED ABOUT IT?  NO.  AND I'LL TELL YOU WHY IS BECAUSE THE
      10    IMPORTANCE IS THE OPINION.  YOU ASSUME THE EXPERTS OBVIOUSLY
      11    ARE GOING TO PERHAPS CONSULT ADDITIONAL SOURCES.  OBVIOUSLY
      12    NOBODY KNEW BACK ON THE 5TH OF MAY PRECISELY WHAT THE
      13    EXHIBIT WERE GOING TO BE IN THIS -- IN THIS TRIAL FOR
      14    PURPOSES OF DIVINING WHAT ALL SHOULD BE LOOKED AT.
      15         AND ALL DR. ROTHFEDER IS DOING IS SAYING, OKAY, HERE IS
      16    MY OPINION.  AND BY THE WAY, THE VERY EVIDENCE THAT HAS BEEN
      17    ADMITTED IN THIS COURTROOM, WHICH IS THE MEDICAL HISTORY,
      18    WHICH IS OBVIOUSLY TREMENDOUSLY IMPORTANT IN TERMS OF
      19    UNDERSTANDING THESE PATIENTS, HAS CERTAIN INFORMATION IN IT
      20    WHICH IS PROBATIVE AND RELEVANT TO WHAT I'M GOING TO OPINE.
      21    AND IT'S QUITE A BIT DIFFERENT -- THIS IS QUITE A BIT
      22    DIFFERENT APPROACH THAN HAVING EXPERTS COME IN AND TALK
      23    ABOUT BOOKS AND TALK ABOUT CHARTS AND TALK ABOUT ALL -- ALL
      24    MATTER OF THINGS WHICH WERE NEVER IN THE REPORT, WERE NEVER
      25    REFERENCED IN THE REPORT, WERE NEVER IDENTIFIED IN THE


                                                                       3274



       1    REPORT.  AND I EMPHASIZE ONCE AGAIN, DID YOU SEE DEFENSE
       2    COUNSEL GETTING TOO EXCITED ABOUT IT?  NO, BECAUSE OBVIOUSLY
       3    WHAT THE IMPORTANCE IS IS THE OPINION.
       4         AND THE DOCUMENTS -- NO, THERE'S NO EXPERT REPORT, YOUR
       5    HONOR, THAT I'VE EVER SEEN OR I'VE EVER HEARD OF THAT
       6    REQUIRES A SPECIFIC CONCRETE DELINEATION OF EVERY LITTLE
       7    ITEM THAT SOMEBODY HAS LOOKED AT FOR PURPOSES OF RENDERING
       8    OPINION.  THAT'S JUST NOT THE WAY THE LAW IS PRACTICED.  AND
       9    I WOULD SUBMIT THAT WE'RE DEALING WITH THE EXHIBITS.
      10    THERE'S NOTHING IN THIS WHITE BINDER THAT ISN'T IN EVIDENCE
      11    IN THIS COURTROOM.
      12         DR. WILDING, FOR EXAMPLE, YOU MIGHT RECALL, THAT HAS
      13    COME UP ALREADY BEFORE THE JURY AT LEAST TWO OR THREE TIMES
      14    AND, IN FACT, DR. CROOKSTON TALKED ABOUT IT, BECAUSE HE WAS
      15    OF THE OPINION -- AND THIS WASN'T IN HIS REPORT EITHER,
      16    ABOUT THE CIRCUMSTANCES OF THE PULMONARY COMPLICATIONS THAT
      17    MS. ANDERSON HAD ON ADMISSION AND I ASKED HIM ABOUT WHETHER
      18    OR NOT IF THAT PULMONARY COMPLICATION PRE-EXISTED HER
      19    ADMISSION, WOULD THAT BE SIGNIFICANT TO HIM AND HE SAID,
      20    WELL, I HAVEN'T REVIEWED THE HISTORY.  BUT WE TALKED ABOUT
      21    DR. WILDING'S RECORDS AND THE FACT THERE WAS AN X-RAY DONE
      22    ON NOVEMBER 18TH OF 1995, WHICH SHOWS SHE HAD PNEUMONIA.
      23    BUT HERE HE IS TESTIFYING ABOUT IT AND WE'RE TALKING ABOUT
      24    THE EVIDENCE AND I'M ENTITLED TO CROSS HIM ON IT AND HE'S
      25    TELLING ME THINGS THAT AREN'T IN HIS REPORT AND, YOU KNOW,


                                                                       3275



       1    YOU GO ON.
       2         IT ISN'T A PERFECT WORLD AND THIS CERTAINLY IS NOT
       3    ANYTHING THAT ANYBODY CAN CLAIM -- HOW CAN YOU POSSIBLY
       4    CLAIM SURPRISE WHEN YOU ARE DEALING WITH THE EXHIBITS WHICH
       5    HAVE BEEN IN EVIDENCE IN THIS COURTROOM PROBABLY FOR THE
       6    LAST TWO WEEKS?  I MEAN -- AND AS FAR AS IF THERE'S A
       7    NECESSITY NOW TO CALL SOMEBODY, THERE IS A REBUTTAL CASE.
       8    AND I ASSUME IN THAT REBUTTAL CASE, IF THERE ARE ISSUES THAT
       9    COME UP THAT TRULY NEED SOME KIND OF EXPLANATION, I'M SURE
      10    THOSE WITNESSES WILL BE AVAILABLE.  WE WENT THROUGH THIS
      11    BEFORE WITH WILDING AND AS I UNDERSTOOD, THE ARGUMENT WAS
      12    SURPRISE THEN AND AS I UNDERSTOOD THE COURT BASICALLY SAYING
      13    WILDING IS A TREATING PHYSICIAN OF ELLEN ANDERSON, SHE IS
      14    NAMED ON YOUR WITNESS LIST.  HOW COULD YOU POSSIBLY BE
      15    SURPRISED THAT ALL OF A SUDDEN DR. WILDING'S RECORDS ARE
      16    GOING TO SHOW UP IN THIS COURTROOM?
      17         SO IN ANY EVENT, JUDGE, RESPECTFULLY, THIS IS ALL THAT
      18    IS CONTAINED IN HERE IS THE EVIDENCE.  THERE'S NOTHING ELSE,
      19    THERE'S NO SURPRISE.  AND DOCTOR -- IN OTHER WORDS, LOOK AT
      20    THIS WAY, JUDGE, I CERTAINLY THINK I COULD DO THIS:  IF THIS
      21    WHITE BINDER IS A PROBLEM, I COULD ALWAYS ASK HIM -- I COULD
      22    TAKE SOME EVIDENCE RIGHT NOW AND I COULD WALK IT OVER AND WE
      23    COULD SPEND ALL THE HOURS OF HIM GOING THROUGH STUFF AND I
      24    COULD PUT IT ON THE ELMO, AND AS LONG AS IT'S WITHIN THE
      25    PURVIEW OF THE OPINION, I COULD ASK HIM ABOUT IT.  IT'S


                                                                       3276



       1    PERFECTLY PROPER.  JUST LIKE HE COULD HAVE SAT BACK THERE IN
       2    THE BACK OF THE COURTROOM AND LISTENED TO ALL THIS TESTIMONY
       3    AND COME IN AND SUMMARIZE IT.  BECAUSE EACH ONE OF OUR
       4    REPORTS SAYS I THINK WHAT APPROPRIATELY IT SHOULD HAVE SAID,
       5    AND THAT IS, AND I THINK THE COURT WILL APPRECIATE THIS,
       6    IT'S NOT OUR CASE IN CHIEF.  WE'RE NOT THE PROPONENT.
       7         IT'S MUCH EASIER TO PREPARE AN EXPERT REPORT AS A
       8    PROPONENT.  THE DEFENSE OBVIOUSLY HAS TO SAY, THIS IS WHAT
       9    OUR GUYS ARE GOING TO SAY, BUT GUESS WHAT?  THINGS ARE GOING
      10    TO HAPPEN IN THE TRIAL, THINGS MAY COME UP WITH THE
      11    PROSECUTION WITNESSES WHICH OBVIOUSLY WE NEED TO REACT TO.
      12    THERE'S NO WAY WE COULD POSSIBLY ANTICIPATE EVERYTHING.
      13    AND, QUITE FRANKLY, THIS ISN'T REALLY ANY DIFFERENT THAN
      14    WHAT WE PUT IN OUR REPORT OTHER THAN WE HAVE NOW ENCOMPASSED
      15    THE ACTUAL EVIDENCE IN THIS TRIAL, WHICH WE COULD NOT HAVE
      16    KNOWN ON THE 5TH, TO ASSIST THE JURY AND TO ASSIST
      17    DR. ROTHFEDER FOR PURPOSES OF WHAT HE'S GOING TO SAY.  SO I
      18    WOULD SUBMIT IT, YOUR HONOR.
      19             THE COURT:  OKAY.
      20             MR. MAJOR:  QUICKLY A RESPONSE, YOUR HONOR.  I
      21    BELIEVE IT'S OUR UNDERSTANDING, AND MAY BE -- I MAY BE
      22    MISTAKEN ON THIS.  BUT MY UNDERSTANDING IS THESE DOCUMENTS
      23    WERE OBTAINED AFTER WE RECEIVED THE EXPERT REPORT AND MAYBE
      24    I'M MISTAKEN ON THAT, BUT I -- WE MADE SIMILAR ARGUMENTS AND
      25    I GUESS WE COULD MAKE THE SAME ARGUMENT MR. STIRBA IS MAKING


                                                                       3277



       1    ON THIS PARTICULAR CASE WITH NURSE CALVERT.  THIS COURT
       2    WOULD NOT ALLOW HER TO TESTIFY AS AN EXPERT OPINION BECAUSE
       3    HER TESTIMONY AS TO WHAT WAS ON THE CHART WENT BEYOND WHAT
       4    WAS TOLD ON HER REPORT.  EVERYTHING THAT SHE HAD ON THAT
       5    CHART THAT SHE WAS GOING TO TESTIFY TO HAD BEEN ADMITTED
       6    INTO EVIDENCE, IT FOLLOWED THE EXACT SAME LINE --
       7             THE COURT:  NO.  BUT WHAT SHE WAS -- YOU KNOW, I
       8    GUESS THE THING THAT I'M CONCERNED ABOUT IS THAT, YOU KNOW,
       9    IF YOU ARE MAKING AN ARGUMENT, MAKE IT, YOU KNOW, TO ME AND
      10    DON'T MAKE IT TO THE PRESS.  I MEAN, WHAT YOUR ARGUMENT IS
      11    SAYING IS THAT, GEE, JUDGE, YOU'VE DONE IT THIS WAY AND THEN
      12    YOU ARE NOT DOING IT THAT WAY.  I'LL TELL YOU RIGHT NOW
      13    WE'RE TALKING ABOUT TWO DIFFERENT THINGS.
      14         EARLIER IN THIS CASE ON EXPERT REPORTS I SAID IF THEY
      15    ARE GOING TO TESTIFY ABOUT AN OPINION THAT IS NOT IN THEIR
      16    REPORT, IT'S NOT GOING TO HAPPEN.  AND IF THIS INDIVIDUAL
      17    EXPERT WITNESS OR ANY OTHER DEFENDANT'S EXPERT WITNESS IS
      18    GOING TO TESTIFY ABOUT AN OPINION THAT ISN'T IN THEIR
      19    REPORT, IT ISN'T GOING TO HAPPEN.  NOW YOUR ARGUMENT IS NOT
      20    THAT IT'S OPINION.  YOUR ARGUMENT IS HE SAYS HE REVIEWED
      21    THESE DOCUMENTS AND NOW HE'S GOT OTHER DOCUMENTS THAT ARE
      22    ALL IN EVIDENCE AND THAT WE'VE RECEIVED.
      23             MR. MAJOR:  NO.  WHAT I'M ARGUING, YOUR HONOR, IS
      24    THAT HIS OPINION THAT WE RECEIVED IN HIS REPORT ONLY WAS
      25    BASED ON THE MEDICAL RECORDS FROM THE DAVIS NORTH HOSPITAL.


                                                                       3278



       1    HE IS NOW COMING INTO THIS COURT BASING HIS OPINION ON
       2    OUTSIDE RECORDS THAT WERE NOT LISTED IN HIS REPORT AND IS
       3    NOT THE SAME -- THIS WOULD NOT BE THE SAME REPORT BECAUSE
       4    HE'S BASED HIS REPORT NOW ON OUTSIDE RECORDS THAT WERE NOT
       5    CONSIDERED AT THE TIME HE GAVE THIS REPORT.  SO THIS IS NOT
       6    AN ACCURATE REPORT IF YOU ALLOW THAT OTHER INFORMATION IN.
       7             THE COURT:  WELL, I SEE THE THINGS BEING TWO
       8    TOTALLY DIFFERENT THINGS.  ONE IS, IS THERE A DIFFERENT
       9    OPINION?  AND WITH NURSE KAUFMAN -- YOUR EXAMPLE, AS NURSE
      10    KAUFMAN STATED ON HER CHART THAT'S AT THE ON THE BOTTOM OF
      11    ALL OF THOSE 20 TO 32, IT WAS THAT SHE HAD GONE THROUGH THE
      12    RECORDS, THEN MADE AN INTERPRETATION OF A LETHARGY TO
      13    AGITATION STAGE FROM A ONE TO A THREE AND HAD MADE THAT.
      14    THERE WAS NOTHING ABOUT THAT -- AND THEN SHE WAS GOING TO
      15    GIVE THAT AS HER OPINION.  IT WASN'T THAT SHE HAD REVIEWED
      16    THE RECORDS THAT WAS THE PROBLEM.  IT WAS THAT THAT ISSUE
      17    WASN'T IN THE OPINION RECORD -- I MEAN, THE OPINION REPORT
      18    THAT YOU HAD GOTTEN BEFORE TRIAL.
      19         THIS WITNESS IN WHAT YOU HAVE READ, WHAT YOU ARE
      20    TELLING ME IS THAT HE SAID HE'S DONE THIS.  AND DURING YOUR
      21    ARGUMENT, I LOOKED THROUGH ALL OF THE EXPERT REPORTS THAT
      22    HAVE BEEN SUBMITTED TO ME EARLIER AND MOST PEOPLE SAY, I'VE
      23    LOOKED AT THE RECORDS ON THESE PEOPLE, I'VE REVIEWED THE
      24    MEDICAL RECORDS OR SOME OF THEM SAYS I'VE REVIEWED THE
      25    RECORDS AT THE HOSPITAL, YOUR EXPERTS, AND THEN THEY CAME IN


                                                                       3279



       1    AND THEY TESTIFIED ABOUT THINGS BEYOND THAT.  ARE YOU SAYING
       2    THAT WHAT MR. STIRBA JUST SAID, DON'T GIVE THEM THE WHITE
       3    BINDER BUT THEN GIVE IT TO HIM HERE AT TESTIMONY AND HE
       4    CAN'T TALK ABOUT IT?
       5             MR. MAJOR:  AND I MAY BE MISTAKEN BUT I UNDERSTOOD
       6    THE TESTIMONY FROM OUR EXPERT WITNESSES WAS BASED ON -- AS
       7    FAR AS THE MEDICAL RECORDS, WAS BASED ON CROSS-EXAMINATION.
       8    IT WAS NOT SOMETHING THAT WE OURSELVES HAD SUBMITTED TO THE
       9    DOCTOR, BUT I MAY BE MISTAKEN ON THAT, YOUR HONOR.  BUT WE
      10    WOULD SUBMIT IT.
      11             THE COURT:  OKAY.  WELL, ON THE BASIS OF THE ISSUE
      12    OF WHETHER THIS IS BEYOND HIS OPINION AND THE EXPERT REPORT
      13    AND HOW I'VE PREVIOUSLY RULED, YOU KNOW, WHAT HE HAS
      14    REVIEWED, IF HE HAS REVIEWED THINGS THAT ARE NOT IN THE
      15    RECORD AND IS NOT PART OF THE EVIDENCE IN THIS CASE, I WOULD
      16    NOT ALLOW THAT.  BUT WHAT HE HAS REVIEWED IS DOCUMENTS THAT
      17    ARE IN EVIDENCE AND HE IS NOT -- IT'S NOT A DIFFERENT
      18    OPINION, IT'S WHAT HE'S REVIEWED, AND ON THE BASIS OF THAT,
      19    HE CAN TESTIFY ABOUT IT.  HOW IS OUR COURT REPORTER DOING ON
      20    FINGERS?  OKAY.  LET'S TAKE A TEN-MINUTE BREAK.  WE'LL JUST
      21    TELL THE JURY IT WILL BE ABOUT TEN MINUTES.
      22                  (A BRIEF RECESS WAS TAKEN.)
      23             THE COURT:  PLEASE BE SEATED.  THE RECORD WILL
      24    REFLECT THAT THE JURY IS BACK.  MR. STIRBA, IF YOU WOULD
      25    LIKE TO CONTINUE.


                                                                       3280



       1             MR. STIRBA:  THANK YOU, YOUR HONOR.
       2    Q.  (BY MR. STIRBA)  DOCTOR, DIRECTING YOUR ATTENTION TO
       3    THE BINDERS IN FRONT OF YOU, SPECIFICALLY PATIENT ELLEN
       4    ANDERSON --
       5             THE COURT:  PARDON ME.  IF I COULD JUST -- THE JURY
       6    HAS JUST ASKED A QUESTION THAT WHEN THE PROJECTOR IS NOT ON
       7    THAT THOSE LIGHTS BE TURNED OFF.  I GUESS IT'S GIVING A
       8    GLARE AND SOME THINGS.  OKAY.  DOES THAT TAKE CARE OF IT?
       9    ALL RIGHT.  THANKS.
      10    Q.  (BY MR. STIRBA)  DOCTOR, WE WERE -- YOU HAVE THE
      11    BINDERS IN FRONT OF YOU --
      12    A.  I DO.
      13    Q.  -- CONCERNING THE PATIENT ELLEN ANDERSON?  DO YOU HAVE
      14    AN OPINION AS TO THE CAUSE OF DEATH OF ELLEN ANDERSON?
      15    A.  I DO.
      16    Q.  AND WHAT IS YOUR OPINION?
      17    A.  I BELIEVE THAT MRS. ANDERSON DIED OF PNEUMONIA WHICH HAD
      18    BEEN PRESENT FOR SOME TIME SUPERIMPOSED ON OLD AGE AND A
      19    CARDIAC CONDITION.
      20    Q.  DO YOU HAVE AN OPINION AS TO WHETHER OR NOT MORPHINE
      21    CAUSED OR CONTRIBUTED TO HER DEATH?
      22    A.  I DO.
      23    Q.  AND WHAT IS THAT OPINION?
      24    A.  I DO NOT BELIEVE THAT THE MORPHINE EITHER CAUSED OR
      25    CONTRIBUTED TO HER DEATH.


                                                                       3281



       1    Q.  NOW IF YOU GO INTO THE WHITE BINDER, THERE ARE SOME
       2    DOCUMENTS FROM THE EVIDENCE RELATING TO THE CIRCUMSTANCES OF
       3    PATIENT ELLEN ANDERSON.  AND SPECIFICALLY IF YOU COULD LOOK
       4    AT THE FIRST PAGE WHICH IS A PROGRESS NOTE MED-172, DO YOU
       5    HAVE THAT IN FRONT OF YOU?
       6    A.  I DO.
       7    Q.  AND IT SAYS, 12/30/95 DR. WEITZEL WRITES IN THE SECOND
       8    PARAGRAPH, HE PUTS A: PROBABLE M.I., RECOMMEND AUTOPSY.  P:
       9    WILL RELEASE TO FAMILY.  DID THAT RECORD HAVE ANY
      10    SIGNIFICANCE TO YOU FOR PURPOSES OF YOUR OPINION AS TO HER
      11    CAUSE OF DEATH?
      12    A.  IT DID.
      13    Q.  AND TELL US, PLEASE, WHAT SIGNIFICANCE IT HAD.
      14    A.  IT APPEARS TO ME THAT DR. WEITZEL IN THIS RECORD IS
      15    OPINING ON WHAT MIGHT HAVE CAUSED HER DEATH.  I RECALL THAT
      16    THIS PATIENT DIED VERY SHORTLY AFTER SHE WAS ADMITTED TO THE
      17    HOSPITAL.  AND ONE OF THE THINGS THAT HE'S CONSIDERING --
      18    WHAT HE'S CONSIDERING AS PROBABLE IS AN M.I.  AN M.I. MEANS
      19    MYOCARDIAL INFARCTION AND MYOCARDIAL INFARCTION IS A
      20    TECHNICAL TERM FOR AN ACUTE HEART ATTACK.
      21         HE REFERENCES THAT THE ELECTROCARDIOGRAM THAT WAS
      22    PERFORMED ON ADMISSION WAS ABNORMAL AND, IN FACT, I REVIEWED
      23    THAT ELECTROCARDIOGRAM AND IT WAS ABNORMAL.  IT SHOWED
      24    RHYTHM ABNORMALITIES, RAPID HEART RATE, IRREGULARITY OF THE
      25    RHYTHM AND WHAT WE CALL T-WAVE CHANGES.


                                                                       3282



       1    Q.  AND PERHAPS IF I COULD STOP YOU RIGHT THERE.  IF YOU
       2    FLIP IN THAT BINDER, IF YOU FLIP ABOUT FOUR PAGES AFTER THE
       3    INITIAL PROGRESS NOTE, YOU DO HAVE THE REPORT OF THE E.K.G.;
       4    IS THAT RIGHT?
       5    A.  THAT'S RIGHT.
       6    Q.  AND THAT WOULD BE NUMBER 173?
       7    A.  THAT'S CORRECT.
       8    Q.  AND TELL US HOW YOU INTERPRET THAT REPORT.
       9    A.  I INTERPRET THE REPORT CONSISTENT WITH THE ACTUAL
      10    WRITTEN INTERPRETATION ON THE REPORT BY THE -- IT LOOKS LIKE
      11    DR. BURTENSHAW AND THERE'S A SINUS TACHYCARDIA.
      12    Q.  WHAT IS THAT?
      13    A.  THAT MEANS THAT THERE'S A RAPID HEART RATE WELL ABOVE
      14    NORMAL.  THE HEART RATE IS 107.  A NORMAL HEART RATE WOULD
      15    TYPICALLY BE IN THE 70'S AND SO THAT THE NORMAL PACEMAKER OF
      16    THE HEART IS RACING IN RESPONSE TO SOME KIND OF MEDICAL
      17    PROBLEM AND THERE'S A MARKED SINUS ARRHYTHMIA.
      18    Q.  WHAT IS THAT?
      19    A.  WHAT THAT MEANS IS THAT THE ACTUAL RHYTHM IS NOT
      20    REGULAR, IT'S IRREGULAR.  SO SOMETHING IS IRRITATING THE
      21    PACEMAKER TO CAUSE THE RAPID RATE AND THE IRREGULAR RATE.
      22    Q.  IT ALSO SAYS THAT THERE'S A NONSPECIFIC O T-WAVE
      23    ABNORMALITY, WHAT IS THAT?
      24    A.  THERE'S NON -- IT ACTUALLY SAYS NONSPECIFIC T-WAVE
      25    ABNORMALITY AND THAT C -- THAT'S A C AT THE END OF


                                                                       3283



       1    NONSPECIFIC.
       2    Q.  THANK YOU.
       3    A.  THE T-WAVE IN THE ELECTROCARDIOGRAM REPRESENTS
       4    REPOLARIZATION OF THE VENTRICLE, THE BIG MUSCULAR PART OF
       5    THE HEART.  ELECTRICALLY WHAT HAPPENS IS THE HEART -- FOR
       6    EACH BEAT, THE HEART DISCHARGES ELECTRICALLY AND THEN KIND
       7    OF RECHARGES AND DURING THE RECHARGING PROCESS SOMETHING IS
       8    WRONG BECAUSE THE MORPHOLOGY, THE FORM OF THE T-WAVE IS
       9    ABNORMAL.  SO THERE'S SOMETHING WRONG WITH THE
      10    REPOLARIZATION OF THE CONDUCTING SYSTEM.
      11         AND OF INTEREST AS WELL IS THERE'S LOW VOLTAGE Q.R.S.
      12    THE Q.R.S. REFERS TO THE PORTION OF THE TRACING WHERE THE
      13    VENTRICLE, AGAIN THE BIG MUSCULAR PUMP, DISCHARGES.  AND
      14    NORMALLY THERE'S -- NORMALLY THE AMPLITUDE, THE SIZE OF THE
      15    Q.R.S. WAVE, IS OF A CERTAIN SIZE.  IN THIS CASE THEY ARE
      16    LITTLE TINY Q.R.S.'S AND IT'S KIND OF -- THE ANALOGY WOULD
      17    KIND OF BE LIKE A BATTERY THAT DOESN'T HAVE ALL OF ITS
      18    JUICE.  FOR WHATEVER REASON, THE VENTRICLE ELECTRICALLY
      19    DOESN'T HAVE ALL THE JUICE IT SHOULD HAVE AND THERE'S --
      20    THIS IS REFLECTED BY LOW VOLTAGE.
      21    Q.  IS THIS FINDING IN THIS E.K.G. THAT WAS DONE ON PATIENT
      22    ANDERSON CONSISTENT WITH A CARDIAC DYSFUNCTION?
      23    A.  IT IS.  IT'S CONSISTENT WITH THE HEART NOT OPERATING
      24    NORMALLY ELECTRICALLY.
      25    Q.  NOW, I WANT TO TURN NEXT TO THERE'S SOME NURSES' NOTES


                                                                       3284



       1    190 AND 191 AND I WANT TO SKIP OVER THEM FOR THE TIME BEING
       2    AND TURN TO 174.  AND THAT IS A REPORT DONE OF A CHEST
       3    X-RAY; IS THAT RIGHT?
       4    A.  THAT'S CORRECT.
       5    Q.  AND TELL US, PLEASE, WHAT SIGNIFICANCE IF ANY THAT HAS
       6    TO YOUR OPINION THAT PATIENT ANDERSON DIED AS A RESULT OF
       7    PNEUMONIA.
       8    A.  THIS WAS -- THE CHEST X-RAY DATED 12/30/95, THIS WAS
       9    MRS. ANDERSON'S ADMISSION CHEST X-RAY AND IT'S ABNORMAL.
      10    THERE IS CONSOLIDATION AND AN INFILTRATIVE PROCESS IN THE
      11    BASES OF BOTH LUNGS.  AND THE REPORT STATES THAT THIS
      12    CONSOLIDATIVE DENSITY IS SUGGESTIVE OF A BILATERAL
      13    INFILTRATE PROCESS SUCH AS PNEUMONITIS PNEUMONIA VERSUS
      14    PULMONARY EDEMA, WHICH IS FLUID IN THE LUNGS FROM HEART
      15    FAILURE OR BLEEDING.
      16         NOW, UNDERSTAND WHEN ONE LOOKS AT A CHEST X-RAY AND ONE
      17    SEES A SHADOW, IN OTHER WORDS, NORMALLY THE LUNG IS FULL OF
      18    AIR, IT DOESN'T HAVE FLUID IN IT.  WHEN ONE SEES A SHADOW ON
      19    THE LUNG, THAT REPRESENTS FLUID IN THAT PORTION OF THE LUNG
      20    RATHER THAN THE AIR THAT'S SUPPOSED TO BE THERE.
      21         USUALLY, IN MOST CASES, JUST GENERALLY SPEAKING LOOKING
      22    AT A CHEST X-RAY, IT'S NOT POSSIBLE TO TELL DEFINITIVELY
      23    FROM LOOKING AT THE FILM WHETHER THAT FLUID, THAT INFILTRATE
      24    REPRESENTS INFECTION, IN OTHER WORDS, PUSS, FLUID FROM
      25    INFECTION FROM PNEUMONIA OR WHETHER IT REPRESENTS FLUID SUCH


                                                                       3285



       1    THAT WE CALL PULMONARY EDEMA WHICH IS JUST BASICALLY BLOOD
       2    TYPE FLUID BACKING UP FROM A CONGESTIVE HEART, OR FOR THAT
       3    MATTER, WHETHER IT REPRESENTS A TUMOR OR SOMETHING ELSE.
       4    ALL YOU KNOW IS THERE'S FLUID RATHER THAN AIR IN THE LUNG
       5    THAT'S ABNORMAL AND IT REQUIRES CLINICAL CORRELATION, OR IN
       6    THIS CASE AN AUTOPSY TO DETERMINE WHAT THAT FLUID THAT YOU
       7    ARE SEEING ON THIS TWO-DIMENSIONAL CHEST X-RAY ACTUALLY
       8    REPRESENTED.
       9    Q.  DO YOU RECALL IN TERMS OF YOUR REVIEW OF THE AUTOPSY
      10    REPORT, DID THAT HAVE ANY RELATIONSHIP TO THE OPINION THAT
      11    YOU HAVE EXPRESSED?
      12    A.  WELL, IT DID.  THE AUTOPSY SHOWED THAT AN AREA OF THIS
      13    FLUID IN THE LUNG, IN THE LEFT LUNG BASE WAS, IN FACT,
      14    PNEUMONIA.  SO IN RETROSPECT, KNOWING THAT THERE WAS
      15    PNEUMONIA THERE, ONE CAN GO BACK AND LOOK AT THIS X-RAY AND
      16    SAY, WELL, THE FLUID THAT -- THE FLUID THAT WAS SEEN, THE
      17    INFILTRATE, THE DENSITY THAT WAS SEEN IN THAT AREA WAS, IN
      18    FACT, PNEUMONIA, INFECTION.
      19    Q.  NOW IF YOU WOULD TURN PAST THE E.K.G. REPORT, PAST --
      20    THERE'S A MEDICATION ADMINISTRATIVE RECORD, YOU'LL COME
      21    TO -- IT HAS AT THE BOTTOM WILD-2.
      22    A.  I SEE IT.
      23    Q.  AND CAN YOU TELL US WHAT THIS IS?
      24    A.  YES.  THIS IS -- THIS IS A PHYSICIAN NOTE, A PROGRESS
      25    NOTE OR WHATEVER YOU WANT TO CALL IT, SIGNED BY A PHYSICIAN


                                                                       3286



       1    AND I BELIEVE IT'S ACTUALLY DR. KELLER, IF I'M NOT MISTAKEN
       2    WHO SIGNED THIS.  AND THIS WAS DATED NOVEMBER 18TH, '95,
       3    MAYBE FIVE, SIX WEEKS PRIOR TO THE HOSPITAL ADMISSION.  AT
       4    WHICH TIME MRS. ANDERSON WAS IN THE BOX ELDY COUNTER -- BOX
       5    ELDER COUNTY PIONEER MEMORIAL NURSING HOME AND THIS IS -- SO
       6    THIS IS A DOCTOR'S NOTE EVIDENCING HER CONDITION AT THE TIME
       7    THAT THE DOCTOR WAS SEEING HER IN THE NURSING HOME.
       8    Q.  AND I NOTICE UNDER DOCTOR'S OBSERVATION AND NEW FINDINGS
       9    TOWARDS THE BOTTOM THERE'S A STATEMENT RELATING TO AN X-RAY
      10    AND THEN AN ARROW IT SAYS, POSSIBLE LUNG TUMOR.
      11    A.  RIGHT.
      12    Q.  WHAT SIGNIFICANCE DOES THAT HAVE?
      13    A.  WELL, THE DOCTOR APPARENTLY HAD LOOKED AT AN X-RAY IN
      14    WHICH THERE WAS A DENSITY, AN INFILTRATE.  WHEN DR. KELLER
      15    LOOKED AT THAT, ONE OF HIS CONCERNS WAS THAT MAYBE THIS WAS
      16    A TUMOR.  AS I HAD SUGGESTED BEFORE, LOOKING AT THE FILM,
      17    SUCH AN INFILTRATE COULD BE TUMOR OR PNEUMONIA OR HEART
      18    FAILURE SO HIS CONCERN AT THIS POINT IN TIME IS, HEY, MAYBE
      19    THIS IS A LUNG TUMOR THAT WE'RE LOOKING AT.  AND, IN FACT,
      20    THE DISPOSITION IN HIS MIND TO FIND OUT WAS, HE'S GOING TO
      21    CHECK ON THE REPORT FROM THE RADIOLOGIST TO SEE WHAT THE
      22    RADIOLOGIST HAS TO SAY ABOUT IT, WHAT HE THINKS IT IS BASED
      23    UPON THE X-RAY APPEARANCE.
      24    Q.  NOW, IF YOU TURN ACTUALLY ANOTHER PAGE TO WILD-27?  IT
      25    WOULD NOT -- NOT THE NEXT PAGE BUT THE PAGE AFTER THAT.


                                                                       3287



       1    A.  YES, I SEE THAT.
       2    Q.  AND WHAT IS THAT?
       3    A.  THERE'S ACTUALLY TWO THINGS ON THE PAGE.  THERE'S AN
       4    X-RAY REPORT OF THIS X-RAY THAT WE'VE JUST TALKED ABOUT
       5    DATED 11/18/95.  BELOW THAT THERE'S...IT LOOKS LIKE A
       6    URINALYSIS RESULT.  DO YOU WANT ME TO COMMENT UPON THE X-RAY
       7    REPORT?
       8    Q.  YES, THAT'S WHAT I'M ASKING YOU ABOUT.
       9    A.  ALL RIGHT.  THE RADIOLOGIST WHO READ THIS NOTED THAT
      10    THERE IS INCREASING ATELECTASIS AND/OR PNEUMONIA IN BOTH
      11    LUNG BASES AND HIS IMPRESSION WAS BIBASILAR ATELECTASIS
      12    AND/OR PNEUMONIA, RIGHT GREATER THAN LEFT.  AND SO BASICALLY
      13    WHAT THE RADIOLOGIST HERE IS SAYING IS I GUESS INFERENTIALLY
      14    HE'S NOT REALLY CONSIDERING THAT THIS IS A TUMOR BUT IS
      15    SAYING THAT THIS IS EITHER ATELECTASIS, WHICH IS ACTUALLY
      16    COLLAPSE OF SEGMENTS, OR PNEUMONIA OR BOTH.
      17    Q.  AND WHAT SIGNIFICANCE DOES THIS FINDING HAVE, IF ANY,
      18    CONCERNING YOUR OPINION THAT THE CAUSE OF DEATH WAS
      19    PNEUMONIA?
      20    A.  WELL, I THINK THAT THIS INDICATES THAT -- LET'S WORK
      21    BACKWARDS.  WE KNOW AT AUTOPSY THAT THE PATIENT HAD
      22    PNEUMONIA.  WE NOW KNOW THAT THE X-RAY THAT WAS TAKEN ON
      23    ADMISSION JUST SHORTLY PRIOR TO HER DEATH ON DECEMBER 30TH
      24    CONTAINED AN INFILTRATE THAT IN RETROSPECT WAS PNEUMONIA.
      25    AND IT WOULD CERTAINLY APPEAR TO ME AT LEAST THAT THE


                                                                       3288



       1    INFILTRATE SEEN SIX WEEKS PRIOR ON NOVEMBER 18TH, '95 WAS
       2    PNEUMONIA AS WELL.  SO MY IMPRESSION WOULD BE THAT THERE WAS
       3    PNEUMONIA INFECTION SMOULDERING IN THAT LUNG WHICH
       4    ESSENTIALLY WAS UNTREATED FROM AT LEAST NOVEMBER 18TH, '95
       5    AND PROBABLY EARLIER UNTIL THE PATIENT DIED.
       6    Q.  NOW, I NOTICE ON THIS REPORT THERE'S ALSO A FINDING THAT
       7    THE AORTA IS VERY TORTUOUS.  WHAT DOES THAT MEAN?
       8    A.  THE AORTA IS TORTUOUS.
       9    Q.  TORTUOUS, I'M SORRY.
      10    A.  WHAT THAT MEANS IS THE NORMAL AORTA, THE AORTA BEING THE
      11    BIG ARTERY THAT COMES OUT OF THE HEART AND BRANCHES TO
      12    SUPPLY BLOOD TO THE ENTIRE BODY, THE NORMAL AORTA IS IT
      13    LOOPS UP AND THEN DOWN --
      14             MR. MAJOR:  YOUR HONOR, I THINK WE'RE GOING TO
      15    OBJECT AT THIS POINT IN TIME.  I THINK THIS IS BEYOND HIS
      16    QUALIFICATIONS.  HE'S TALKING ABOUT CARDIAC, HEART ATTACK, I
      17    DON'T THINK HE'S QUALIFIED TO TESTIFY TO THAT.
      18             THE COURT:  WELL, THE QUESTION WAS WHAT DOES THE
      19    WORD MEAN.
      20             MR. STIRBA:  YEAH, MEAN IN THE CONTEXT OF HIS
      21    FINDING.
      22             THE WITNESS:  WHAT IT MEANS IS THAT RATHER THAN
      23    GOING UP AND DOWN IN A NORMAL RELATIVELY STRAIGHT FASHION,
      24    THE AORTA FORMS A MUCH GREATER CURVE.  AND WHAT THAT
      25    INDICATES IS THAT THERE'S DISEASE IN THAT AORTA, THERE'S


                                                                       3289



       1    ARTERIOLOSCLEROSIS IN IT.  IF THERE WASN'T, IT WOULDN'T BE
       2    TORTUOUS.
       3    Q.  (BY MR. STIRBA)  NOW, IF YOU TURN BACK TO THE X-RAY
       4    WHICH IS MED-174 REPORT DONE AT THE HOSPITAL A FEW PAGES
       5    BACK.
       6    A.  OKAY.  I HAVE IT.
       7    Q.  UNDER IMPRESSION AFTER IT TALKS ABOUT THE PNEUMONITIS,
       8    IT SAYS, HEART APPEARS ENLARGED WITH AORTA TORTUOUS AND
       9    CALCIFIED.  IS THAT A CONSISTENT FINDING WITH THE PREVIOUS
      10    X-RAY?
      11    A.  IT IS.  I DON'T BELIEVE THEY MENTIONED CALCIFICATION IN
      12    THE OTHER BUT IT'S EASY TO SEE WHEN IT'S PRESENT.  AND WHAT
      13    HAPPENS IS WHEN THERE'S DISEASE IN THE ARTERY, CALCIUM FORMS
      14    IN THE LINING WHICH YOU CAN SEE ON X-RAY.  ADDITIONALLY, THE
      15    HEART IS ENLARGED WHICH MEANS THAT IT'S FAILING TO SOME
      16    DEGREE, THERE'S A DEGREE OF PUMP FAILURE GOING ON.
      17    Q.  NOW, ARE THOSE TWO X-RAY FINDINGS CONSISTENT WITH YOUR
      18    OPINION?
      19    A.  YES.
      20    Q.  AND HOW SO?
      21    A.  WELL, MY OPINION WAS THAT MRS. ANDERSON DIED FROM
      22    PNEUMONIA SUPERIMPOSED ON OTHER MEDICAL PROBLEMS.  ONE OF --
      23    PROBABLY THE MOST SIGNIFICANT OF WHICH WAS CARDIOVASCULAR
      24    DISEASE.  AND THIS IS EVIDENCE, MORE EVIDENCE THAT HER HEART
      25    WAS ABNORMAL, NOT ONLY ELECTRICALLY AS SEEN IN THE


                                                                       3290



       1    CARDIOGRAM BUT IN TERMS OF PUMP FUNCTION AS EVIDENCED BY THE
       2    ENLARGEMENT.  AND ADDITIONALLY, SHE HAD BLOOD VESSEL
       3    DISEASE, HER AORTA WAS DISEASED AND CALCIFIED.  AND SO
       4    WE'VE -- YOU'VE GOT SIGNIFICANT COMPROMISE OF THE HEART AND
       5    LUNGS AND THAT'S BAD.
       6    Q.  IF YOU'LL TURN A FEW PAGES PAST THE DR. KELLER NOTE THAT
       7    WE -- WHICH IS WILD-2.
       8    A.  OKAY.
       9    Q.  AND AFTER THAT THERE'S SOME TYPEWRITTEN NOTES, IT SAYS
      10    WILD-4 AT THE BOTTOM.
      11    A.  YES.
      12    Q.  AND IF YOU LOOK AT 11/15/95 THERE IS "A".  WHAT DOES
      13    THAT "A" STAND FOR?  IT SAYS O AND THERE'S --
      14    A.  YEAH.  "A" STANDS FOR ASSESSMENT, I THINK.
      15    Q.  WHAT DOES THAT MEAN?
      16    A.  THAT MEANS WHAT YOUR OPINION IS, HOW YOU PUT IT
      17    ALTOGETHER BASED UPON THE FINDINGS.
      18    Q.  AND IT STATES THERE PATIENT WITH DEPENDANT EDEMA/MILD
      19    CONGESTIVE HEART FAILURE/COUGH.  DOES THAT FINDING BY
      20    DOCTOR -- IT'S NOT CLEAR WHETHER THAT WAS -- WELL, YEAH --
      21    A.  DR. WILDING.
      22    Q.  -- D.W., THERE'S THE INITIALS THERE BY DR. WILDING --
      23    SIGNIFICANT TO YOU FOR PURPOSES OF YOUR OPINION?
      24    A.  IT IS.
      25    Q.  AND HOW SO?


                                                                       3291



       1    A.  IT'S FURTHER EVIDENCE CLINICALLY THAT THIS PATIENT IS
       2    SUFFERING FROM HEART FAILURE.  WHEN THE PUMP FAILS AND
       3    STARTS TO BACK UP, FLUID ACCUMULATES IN THE LUNG AS I
       4    DESCRIBED THAT WE CALL PULMONARY EDEMA, BUT IT ALSO
       5    ACCUMULATES IN THE TISSUES BECAUSE OF FAILURE OF THE RIGHT
       6    VENTRICLE AS WELL, BACKING UP FROM THE RIGHT VENTRICLE.  AND
       7    WHAT IS SEEN THERE WHEN THE -- WHEN THINGS BACK UP THROUGH
       8    THE VENOUS SYSTEM, THE VEINS, IS DEPENDENT EDEMA.
       9         DEPENDENT MEANS WHATEVER PORTION IS DOWN SUBJECT TO
      10    GRAVITY.  TYPICALLY IN AMBULATORY PEOPLE THAT'S GOING TO BE
      11    THE FEET AND ANKLES.  IN SOMEBODY WHO IS BEDRIDDEN, THAT MAY
      12    BE IN THEIR BACK AS THEY ARE LYING DOWN.  BUT THIS PATIENT
      13    HAD DEPENDENT EDEMA WHICH MEANS THAT THERE'S FAILURE OF THE
      14    RIGHT SIDE OF THE HEART.
      15         ADDITIONALLY, SHE HAS COUGH WHICH WOULD BE CONSISTENT
      16    WITH PULMONARY EDEMA OR CONSISTENT WITH PNEUMONIA FOR THAT
      17    MATTER.  SHE STARTED ON -- AND THE DOCTOR GOES AHEAD AND
      18    TREATS HER FOR CONGESTIVE HEART FAILURE, FOR PUMP FAILURE.
      19    Q.  WHY DO YOU SAY THAT?
      20    A.  WELL, BECAUSE HE STARTS HER ON LASIX WHICH IS A POTENT
      21    DIURETIC, PROBABLY THE MOST COMMON DRUG USED TO TREAT HEART
      22    FAILURE.  SO HE'S STARTING HER ON LASIX TO TRY TO GET RID OF
      23    SOME OF THIS FLUID THAT'S ACCUMULATING.  HE'S ALSO GIVING
      24    HER POTASSIUM BECAUSE LASIX LIKE MANY OTHER DRUGS IS NOT
      25    WITHOUT RISK.  ONE OF THE RISKS IS POTASSIUM DEPLETION WHICH


                                                                       3292



       1    THEN CAUSES CARDIAC IRRITABILITY WHICH CAUSES RHYTHM
       2    DISTURBANCES WHICH CAN CAUSE DEATH AND IT'S NECESSARY TO
       3    REPLACE THE POTASSIUM WHICH IS GOING TO BE DEPLETED BY THE
       4    LASIX AND THIS IS PRETTY STANDARD TREATMENT OF CONGESTIVE
       5    HEART FAILURE.  THIS IS WHAT I WOULD DO IN THE E.R. OR
       6    ANYBODY ELSE WOULD DO FOR THIS CONDITION.
       7    Q.  IS CHEST PAIN A SYMPTOM OF CONGESTIVE HEART FAILURE OR
       8    CORONARY ARTERY DISEASE?
       9    A.  YES.
      10    Q.  AND JUST BRIEFLY, WHY DOES ONE EXPERIENCE CHEST PAIN IF
      11    ONE HAS CONGESTIVE HEART FAILURE?
      12    A.  THERE'S A NUMBER OF REASONS.  WHEN SOMEONE HAS
      13    CONGESTIVE HEART FAILURE, THE HEART DOES NOT DELIVER NORMAL
      14    AMOUNT -- BECAUSE OF THE PUMP FAILURE, THE HEART DOESN'T
      15    DELIVER NORMAL AMOUNTS OF BLOOD AND OXYGEN TO THE VARIOUS
      16    ORGANS IN THE BODY, ONE OF WHICH IS THE HEART ITSELF.  THE
      17    HEART SUPPLIES ITSELF WITH BLOOD AND OXYGEN.  IF THERE'S
      18    PUMP FAILURE, CARDIAC FAILURE, THEN THE HEART ITSELF WON'T
      19    GET ENOUGH BLOOD AND THAT WILL CAUSE CHEST PAIN, IT'S CALLED
      20    ANGINA.  ADDITIONALLY, WHEN THERE'S CONGESTIVE HEART FAILURE
      21    THERE'S DILATATION, ENLARGEMENT OF THE HEART AND THE BLOOD
      22    VESSELS AND THAT ITSELF CAN CAUSE PAIN.  SO CHEST PAIN IS A
      23    COMMON FINDING.
      24    Q.  IF YOU'LL TURN A COUPLE OF PAGES THEN TO A DOCUMENT.
      25    IT'S PHYSICIAN ORDERS.


                                                                       3293



       1    A.  I SEE IT.
       2    Q.  AND YOU'LL SEE DOWN UNDER 11/18/95 IT APPEARS THERE WAS
       3    AN ORDER FOR NITROSTAT TO BE REPEATED EVERY FIVE MINUTES,
       4    TWO TO THREE -- MAYBE IT'S TWO, I CAN'T READ IT -- TO THREE
       5    TIMES FOR CHEST PAIN.  DO YOU KNOW WHAT NITROSTAT IS?
       6    A.  I DO.
       7    Q.  AND WHAT IS NITROSTAT?
       8    A.  NITROSTAT IS ONE OF THE NITROGLYCERIN PREPARATIONS AND
       9    IT'S SPECIFICALLY USED TO TREAT CHEST PAIN THAT'S DUE TO
      10    CORONARY INSUFFICIENCY, TO NOT GETTING ENOUGH BLOOD TO THE
      11    HEART ITSELF.  SO IT WOULD APPEAR THAT THE PHYSICIAN WHO
      12    ORDERED THE NITROSTAT BELIEVED THAT THE PATIENT'S CHEST PAIN
      13    WAS FROM INADEQUATE BLOOD SUPPLY BACK TO THE HEART ITSELF
      14    AND HE'S TREATING HER FOR THAT, FOR CARDIAC CHEST PAIN.
      15    Q.  IF YOU COULD NOW PLEASE, DOCTOR, TURN TO THE NEXT
      16    SECTION OF THE BINDER WHICH IS PATIENT MARY CRANE.  DO YOU
      17    HAVE THAT IN FRONT OF YOU?
      18    A.  I DO.
      19    Q.  COULD YOU TELL US PLEASE, DOCTOR, IF YOU HAVE AN OPINION
      20    AS TO THE CAUSE OF DEATH OF MARY CRANE?
      21    A.  I DO.
      22    Q.  AND WHAT IS YOUR OPINION?
      23    A.  I BELIEVE THAT MRS. CRANE DIED OF INFECTION WHICH LED TO
      24    A CONDITION THAT WE CALL SEPSIS WHICH WAS -- FOR WHICH SHE
      25    WAS PREDISPOSED BASED UPON NUMEROUS MEDICAL CONDITIONS AND


                                                                       3294



       1    WHICH SUPERIMPOSED ON THOSE MEDICAL CONDITIONS LED TO HER
       2    DEMISE.
       3    Q.  DO YOU HAVE AN OPINION AS TO WHETHER MORPHINE CAUSED OR
       4    CONTRIBUTED TO HER DEATH?
       5    A.  I DO.
       6    Q.  AND WHAT IS YOUR OPINION?
       7    A.  MY OPINION IS THAT MORPHINE NEITHER CAUSED NOR
       8    CONTRIBUTED TO HER DEATH.
       9    Q.  TELL US WHY YOU SAY THAT.
      10    A.  THIS LADY WAS VERY, VERY ILL IN THE HOSPITAL.  HER
      11    CONDITION WAS SUCH THAT WHEN SHE BECAME SEPTIC HER DEMISE
      12    WAS IMMINENT AND SHE WAS PERHAPS THE MOST ACUTELY ILL OF THE
      13    PATIENTS THAT ARE BEING CONSIDERED HERE.  SEPSIS IS A LETHAL
      14    CONDITION AND UNLESS SHE WERE TREATED EXTREMELY VIGOROUSLY
      15    AND AGGRESSIVELY, SHE WOULD HAVE NO CHANCE OF SURVIVING EVEN
      16    WITH AGGRESSIVE TREATMENT.  IN MY OPINION, THE ODDS OF HER
      17    SURVIVING THIS EPISODE WERE VERY POOR.
      18    Q.  NOW, THE FIRST PAGE OF THIS SECTION IT'S A REPORT OF
      19    CONSULTATION AT THE BOTTOM 236 AND THERE ARE SOME
      20    IMPRESSIONS IDENTIFIED THERE.  I WANT TO DIRECT YOUR
      21    ATTENTION TO NUMBER SEVEN WHICH SAYS, HISTORY, RIGHT
      22    CEREBRAL VASCULAR ACCIDENT, RIGHT THALAMIC REGION, 11/90
      23    WITH RESIDUAL LEFT HEMIPARALYSIS.  GENERALLY, WHAT IS THAT
      24    FINDING AND DID THAT FINDING HAVE ANY SIGNIFICANCE TO YOU
      25    FOR PURPOSES OF YOUR EVALUATION OF THIS PATIENT?


                                                                       3295



       1    A.  THE FINDING INDICATED THAT IN NOVEMBER OF '90 THIS
       2    PATIENT HAD SUFFERED A STROKE, CEREBRAL VASCULAR ACCIDENT IS
       3    DOCTORESE FOR STROKE ON THE RIGHT SIDE.  IT ALSO INVOLVED
       4    THE RIGHT THALAMIC REGION WHICH IS A CRITICAL PART OF THE
       5    BRAIN AND IT LEFT THIS PATIENT WITH PARALYSIS ON THE LEFT
       6    SIDE OF HER BODY THEREAFTER.  THE RIGHT SIDE OF THE BRAIN
       7    CONTROLS MOTOR FUNCTION ON THE LEFT SIDE OF THE BODY THAT'S
       8    WHY SHE'S GOT THE PARALYSIS ON THE LEFT.  AND SO SHE HAD --
       9    SHE HAD A DEGREE OF WEAKNESS OF PARALYSIS ON THE LEFT.
      10         OF IMPORTANCE IS THE FACT THAT THE BRAIN FOLLOWING THIS
      11    STROKE HAS BEEN IRREPARABLY DAMAGED, IT'S NO LONGER -- IT'S
      12    NO LONGER NORMAL.  SECONDLY, IT INDICATES THAT SHE'S AT
      13    GREAT RISK FOR SUBSEQUENT SIMILAR EVENTS.  SOMETHING WRONG
      14    WITH HER CIRCULATORY SYSTEM WAS SEVERE ENOUGH TO CAUSE HER
      15    TO STROKE FIVE YEARS PRIOR TO THIS HOSPITALIZATION AND IS A
      16    SIGNIFICANT DEBILITATING FACTOR.
      17    Q.  I WANT TO ALSO DIRECT YOUR ATTENTION TO 12 UNDER
      18    IMPRESSION AND IT STATES, CARDIAC SILHOUETTE ENLARGEMENT BY
      19    PORTABLE A.P. CHEST X-RAY, POSSIBLY SECONDARY TO
      20    HYPERTENSIVE CARDIOVASCULAR DISEASE UNKNOWN LEFT VENTRICULAR
      21    FUNCTION, WHAT DOES THAT MEAN?
      22    A.  IT MEANS THAT SHE'S GOT AN ENLARGED HEART ON THE
      23    PORTABLE CHEST X-RAY.  A PORTABLE CHEST X-RAY IS PERFORMED
      24    USING A DIFFERENT TECHNIQUE THAN THE -- THAN THE CHEST X-RAY
      25    IN THE DEPARTMENT.  AND THE DIFFERENCE IS THAT IN THE


                                                                       3296



       1    PORTABLE TECHNIQUE, THE X-RAY TUBE IS PLACED IN FRONT OF THE
       2    BODY AND THE FILM BLADE IS PLACED IN THE BACK.  WHEN YOU DO
       3    IT IN THE DEPARTMENT IT'S VICE-VERSA AND ON THE PORTABLE
       4    THERE IS SOME -- BECAUSE OF THAT POSITIONAL DIFFERENCE, YOU
       5    CAN GET SOME APPARENT ENLARGEMENT OF THE HEART.  THAT'S WHAT
       6    YOU'VE GOT HERE.
       7         WE ACTUALLY TALKED ABOUT ENLARGED HEART ON CHEST X-RAY
       8    WITH MRS. ANDERSON.  BUT WHAT'S GOING ON HERE IS SHE'S GOT A
       9    BIG HEART ON THE CHEST X-RAY AND HE'S CONCERNED THAT THAT
      10    BIG HEART IS SECONDARY TO HYPERTENSIVE CARDIOVASCULAR
      11    DISEASE.  WHAT THAT MEANS IS HEART DISEASE FROM CHRONIC HIGH
      12    BLOOD PRESSURE.
      13    Q.  IS THAT FINDING IMPORTANT OR SIGNIFICANT TO YOU FOR
      14    PURPOSES OF YOUR OPINION CONCERNING HER CAUSE OF DEATH?
      15    A.  YES.
      16    Q.  AND TELL US, PLEASE, WHY THAT IS.
      17    A.  WELL, IF YOU'VE GOT A PATIENT WITH THE ACUTE PROBLEMS
      18    THAT MRS. CRANE DEVELOPED, INFECTION AND SEPSIS, IF ONE HAS
      19    A NORMAL HEART, THEY WILL HANG ON LONGER OR HAVE A BETTER
      20    CHANCE OF SURVIVING THAT ACUTE SEPSIS OR INFECTION WITH
      21    TREATMENT THAN SOMEONE WITH A DISEASED HEART.  SO WHEN YOU
      22    SUPERIMPOSE THE ACUTE EVENT ON SOMEBODY WHO ALREADY HAS A
      23    BAD HEART, IT MAKES IT THAT MUCH MORE LIKELY THAT THEY ARE
      24    GOING TO SUCCUMB TO THE ACUTE INFECTION AND SEPSIS.
      25    Q.  IF YOU WOULD TURN TO THE NEXT PAGE WHICH WOULD BE 243,


                                                                       3297



       1    DO YOU HAVE THAT IN FRONT OF YOU?
       2    A.  I DO.
       3    Q.  AND I'LL DIRECT YOUR ATTENTION TO THE NOTE DOWN THAT'S
       4    AT 1/1 OF '96, APPARENTLY NOTED BY -- WRITTEN, RATHER, BY
       5    LYNN LONG A NURSE.  WHAT SIGNIFICANCE DID THAT NOTE HAVE TO
       6    YOU IN TERMS OF YOUR OPINION?
       7    A.  THIS LADY TURNED OUT TO HAVE A RECTAL VAGINAL FISTULA.
       8    THIS NOTE APPEARS TO BE ONE OF THE EARLIER, MAYBE THE
       9    EARLIEST REFERENCE IN THE RECORD TO THE EXISTENCE OF THAT
      10    MOST UNPLEASANT CONDITION.  AND WHAT WAS HAPPENING IS THAT
      11    THEY NOTICED THAT THERE WERE FECES IN THE VAGINA WHERE THEY
      12    ARE NOT SUPPOSED TO BE AND THE ONLY WAY THEY COULD HAVE
      13    GOTTEN THERE WAS IF THERE WAS A FISTULA, A COMMUNICATION, AN
      14    OPENING BETWEEN THE VAGINA AND THE RECTUM, AND THAT'S
      15    OBVIOUSLY OF GREAT CONCERN.  AND QUITE APPROPRIATELY, AN
      16    ON-CALL GYNECOLOGIST, A DR. HALL IT WOULD APPEAR, WAS CALLED
      17    TO ASK HIS OPINION OR HIS OR HER OPINION ON HOW TO PROCEED
      18    AND THAT DOCTOR ADVISED GETTING A CONSULT IN THE MORNING.
      19         THIS IS AT 8 O'CLOCK IN THE EVENING SOMEBODY SEES THE
      20    FECES, BECOMES APPROPRIATELY ALARMED, CALLS THE DOCTOR AT
      21    8 O'CLOCK AT NIGHT, WHAT DO WE DO.  THE DOCTOR RESPONDS,
      22    WELL, SINCE THE PATIENT'S VITAL SIGNS AT LEAST AT THIS POINT
      23    IN TIME APPEAR STABLE, THE VITAL SIGNS, I.E., TEMPERATURE
      24    BLOOD PRESSURE AND SO FORTH, IT'S SAFE TO WAIT UNTIL THE
      25    NEXT MORNING FOR HER TO BE PHYSICALLY SEEN BY A CONSULTANT.


                                                                       3298



       1    IF SHE WERE UNSTABLE, THEY PROBABLY WOULD HAVE HAD TO COME
       2    IN, YOU KNOW, RIGHT AWAY.
       3    Q.  IF YOU TURN TO THE NEXT PAGE OR ON THE NEXT DAY THERE'S
       4    A NOTE 1/2 OF '96 GYNECOLOGICAL CONSULT NOTE, DO YOU SEE
       5    THAT?
       6    A.  I DO.
       7    Q.  AND THAT IS A REPORT OF THE GYNECOLOGIST WHO SAW PATIENT
       8    MARY CRANE AT THAT TIME; IS THAT RIGHT?
       9    A.  RIGHT.
      10    Q.  HE SAYS DOWN TOWARDS THE BOTTOM 25 -- PROBABILITY 25 TO
      11    35 PERCENT BY TREATING WITH BROAD SPECTRUM -- AND IT LOOKS
      12    LIKE A.B.S. FOR ANTIBIOTICS AND LOW-RESIDUE DIET.  WHAT
      13    SIGNIFICANCE IS IT THAT HE IS SUGGESTING TREATMENT BY A
      14    BROAD-SPECTRUM ANTIBIOTIC?
      15    A.  WELL, INITIALLY HE'S -- HE HAS TO CONSIDER WHETHER
      16    IMMEDIATE SURGERY IS REQUIRED AND HE TALKS ABOUT THAT A
      17    LITTLE BIT.  HE INDICATES THAT IN HIS MIND THERE IS A 25 TO
      18    35 PERCENT CHANCE THAT THIS COULD HEAL WITHOUT SURGERY.  AND
      19    WHAT WOULD BE CRITICAL TO ANY CHANCE OF THAT HEALING WOULD
      20    BE GETTING HER ON ANTIBIOTICS FOR TWO PURPOSES; ONE, TO SEE
      21    IF THOSE TISSUES WHICH BY DEFINITION ARE INFECTED CAN HEAL.
      22    AND, TWO, TO PREVENT THE INFECTION FROM GETTING WORSE.
      23    Q.  IF YOU TURN TO THE NEXT PAGE 245 TO THE LEFT-HAND SIDE
      24    IT LOOKS LIKE A NOTE ON 1/3/96 AND THE ONE IT SAYS,
      25    LOW-FIBER, LOW-RESIDUE DIET.  I GUESS THAT'S CONSISTENT WITH


                                                                       3299



       1    WHAT THE GYNECOLOGIST SUGGESTED?
       2    A.  RIGHT.
       3    Q.  AND THEN, TWO, IT SAYS, PLEASE HAVE DR. DIENHART MADE
       4    AWARE OF GYNECOLOGIST RECOMMENDATION, GIVE HIM MY, IT LOOKS
       5    LIKE BEEPER NUMBER AND THEN IT'S CROSSED OUT AND IT SAYS
       6    PHONE NUMBER, CAN'T READ THAT, SO HE CAN CALL ME IF
       7    NECESSARY, THANKS, ROBERT WEITZEL AND THEN THERE'S AN ENTRY
       8    OVER THERE ON 1/3/96 AT 1100, DR. DIENHART'S SECRETARY
       9    NOTIFIED OF PHONE NUMBER, LYNN LONG, R.N.  WHAT DOES THAT
      10    TELL YOU?
      11    A.  WHAT THAT TELLS ME IS THAT --
      12             MR. MAJOR:  OBJECTION, YOUR HONOR, I THINK THAT
      13    CALLS FOR A CONCLUSION ON THE PART OF THIS WITNESS.  IT'S
      14    BEYOND THE SCOPE OF HIS ABILITY --
      15             MR. STIRBA:  IT'S PERHAPS INARTFULLY ASKED, YOUR
      16    HONOR.  I'LL REPHRASE THAT QUESTION.
      17             THE COURT:  REPHRASE THE QUESTION.
      18             MR. STIRBA:  YES.
      19    Q.  (BY MR. STIRBA)  DOES THIS HAVE ANY SIGNIFICANCE FOR
      20    PURPOSES OF YOUR OPINION THAT MARY CRANE DIED OF SEPSIS?
      21    A.  IT DOES.
      22    Q.  AND TELL US PLEASE WHY THAT IS.
      23    A.  IT INDICATES TO ME THAT DR. WEITZEL IS CONCERNED
      24    REGARDING THE ACUTE SITUATION SUCH THAT HE WANTS DR.
      25    DIENHART WHO IS THE INTERNIST, THE SPECIALIST IN INFECTIOUS


                                                                       3300



       1    DISEASES, TO BE MADE AWARE OF THE GYNECOLOGIST'S
       2    RECOMMENDATION SUCH THAT DR. DIENHART WOULD THEN ORDER
       3    APPROPRIATE MEDICATION IN THE FORM OF ANTIBIOTICS.  THERE'S
       4    AN ISSUE HERE IN TERMS OF CHOICE OF THE CORRECT ANTIBIOTIC
       5    AND STANDARD PRACTICE WOULD BE TO GIVE THE CONSULTANT WHO
       6    SPECIALIZES IN THAT MORE THAN THE PSYCHIATRIST THE FIRST
       7    SHOT AT CHOOSING THE ANTIBIOTIC, AND THAT'S WHAT'S GOING ON
       8    HERE.
       9    Q.  THEN IF YOU WOULD TURN TWO PAGES, ACTUALLY, AT 248
      10    THERE'S AN ORDER AT THE TOP 1/5/96, 1330, TELEPHONE ORDER
      11    DR. WEITZEL AND IT SAYS, ONE, KEFLEX 250 MILLIGRAMS Q.I.D.
      12    P.O.  WHAT DOES THAT MEAN?
      13    A.  KEFLEX IS A COMMONLY USED BROAD-SPECTRUM ANTIBIOTIC,
      14    CEPHALEXIN IS THE CHEMICAL NAME.  DR. WEITZEL IS ORDERING
      15    250 MILLIGRAMS OF IT TO BE GIVEN ORALLY FOUR TIMES A DAY.
      16    FOR WHATEVER REASON, THE ANTIBIOTIC HAD NOT PREVIOUSLY BEEN
      17    ORDERED AND BY THE 5TH, DR. WEITZEL HAS DECIDED THAT HE WILL
      18    INITIATE THE ANTIBIOTIC TREATMENT THAT WAS RECOMMENDED BY
      19    THE GYNECOLOGIST SEVERAL DAYS PRIOR AND HE DID SO AND THAT'S
      20    A -- THAT'S A TOTALLY REASONABLE CHOICE OF ANTIBIOTIC FOR
      21    THIS CONDITION IN MY OPINION.
      22    Q.  NOW, IF YOU TURN TO THE NEXT PAGE 249, THERE ARE
      23    MULTIPLE ENTRIES ON THAT PAGE.  BUT DIRECTING YOUR ATTENTION
      24    TO THE WRITING ON THE RIGHT-HAND SIDE IT APPEARS THAT WE'RE
      25    AT 1/7/96 AT 3:10 IN THE AFTERNOON AND THERE'S A MED


                                                                       3301



       1    CONSULT, DO YOU SEE THAT?
       2    A.  I DO.
       3    Q.  AND IT SAYS, ASKED TO SEE BY DR. WEITZEL.  IN REVIEWING
       4    THAT CONSULT, DID THAT HAVE SIGNIFICANCE CONCERNING YOUR
       5    OPINION THAT PATIENT MARY CRANE DIED AS A RESULT OF SEPSIS?
       6    A.  IT DID.
       7    Q.  AND TELL US PLEASE WHY YOU SAY THAT.
       8    A.  OKAY.  THE NOTE IS A LITTLE DIFFICULT TO READ BUT HIS
       9    WRITING IS MUCH MORE LEGIBLE THAN MINE.  BUT IT'S -- AS BEST
      10    I CAN INTERPRET IT SAYS, ASKED TO SEE BY DR. WEITZEL,
      11    POSSIBLE SEIZURE, TEN SECONDS.  DOCUMENTS -- DOCUMENTS OTHER
      12    THINGS GOING ON ONE OF THAT IS VERY SIGNIFICANT IS AN
      13    ELEVATED WHITE BLOOD COUNT AND ABNORMAL ELECTROLYTES,
      14    MARKEDLY SO.
      15    Q.  WHAT IS THE SIGNIFICANCE OF AN ELEVATED WHITE BLOOD
      16    COUNT AT THIS TIME?
      17    A.  THE WHITE BLOOD COUNT INDICATES -- THE BLOOD COUNT IS
      18    ONE OF THE PRIMARY TESTS THAT WE DO TO MAKE A DIAGNOSIS OF
      19    INFECTION.  AND IN GENERAL, AN ELEVATED WHITE BLOOD COUNT
      20    INDICATES INFECTION AND A CHANGE IN -- THERE'S A NUMBER OF
      21    DIFFERENT TYPES OF WHITE BLOOD CELLS.  A CHANGE FROM THE
      22    NORMAL PERCENTAGE OF THOSE WHITE BLOOD CELLS FURTHER
      23    INDICATES INFECTION AND, IN FACT, INDICATES BOTH THE ACUITY
      24    AND THE SEVERITY OF THE INFECTION.
      25         WHAT'S REALLY REMARKABLE TO ME IN THIS PARTICULAR CASE


                                                                       3302



       1    IS THE FACT THAT THESE PATIENTS SUCH AS MRS. CRANE WHO WERE
       2    GERIATRIC AND COMPROMISED BY MULTIPLE PROBLEMS THAT WE'VE
       3    DISCUSSED, FREQUENTLY HAVE DIFFICULTY ELEVATING THEIR WHITE
       4    BLOOD COUNT IN RESPONSE TO INFECTION.  THE BODY PRODUCES THE
       5    WHITE BLOOD CELLS TO TRY TO KILL THE GERMS AND SOMETIMES THE
       6    WHITE BLOOD COUNT WON'T HELP IN ELDERLY PATIENTS, BECAUSE
       7    UNLIKE YOUNGER PEOPLE, IT WON'T ELEVATE IN RESPONSE TO
       8    INFECTION.
       9         THE FACT THAT IN THIS CASE THE WHITE BLOOD COUNT WENT
      10    UP TO 15,000 SOMETHING, AND EVEN MORE SIGNIFICANTLY, THAT
      11    THE PERCENTAGE OF WHAT WE CALL THE P.M.N.'S, THE
      12    POLYMORPHONUCLEAR CELLS WHICH ARE THE REAL AGGRESSIVE
      13    INFECTION FIGHTING ONES ARE GREATER THAN 92 PERCENT --
      14    SOMETHING LIKE 92 PERCENT -- WOULD INDICATE TO ME THAT
      15    THERE'S A VERY SERIOUS INFECTION HERE AND PROBABLY A
      16    CONDITION WE CALL SEPSIS.
      17    Q.  NOW YOU ARE REFERRING TO A LAB, ARE YOU NOT, WITH THOSE
      18    FINDINGS?
      19    A.  I AM, YES.
      20    Q.  MAYBE IF WE CAN TURN, PLEASE, TO THE LAB YOU ARE
      21    REFERRING TO WHICH IS A FEW PAGES BEYOND DR. DIENHART'S NOTE
      22    IT'S 261, MED-261.
      23    A.  OKAY.
      24    Q.  AND WHAT IS THAT A STUDY OF?
      25    A.  YOU HAVE A GOT ACTUALLY TWO LAB REPORTS, 261 AND 264.


                                                                       3303



       1    Q.  WHY DON'T WE DEAL WITH 264 FIRST.
       2    A.  OKAY.
       3    Q.  BECAUSE THAT'S THE ONE THAT I THINK IS RELEVANT TO YOUR
       4    WHITE BLOOD CELL COUNT TESTIMONY.
       5    A.  RIGHT.
       6    Q.  JUST WALK US THROUGH THAT IF YOU WILL, PLEASE.
       7    A.  I WILL.  IF YOU LOOK AT THE COLUMN ON THE RIGHT WHERE IT
       8    SAYS NORMAL RANGE UNITS, ONE WILL SEE THAT THE NORMAL RANGE
       9    FOR WHITE BLOOD CELL COUNT IS 4.8, THAT'S 4800 TO 10,800.
      10    AND, IN FACT, IF YOU LOOK AT THE TWO PREVIOUS BLOOD COUNTS
      11    THAT WERE DONE ON MRS. CRANE ON THE 28TH OF DECEMBER AND THE
      12    1ST OF JANUARY, BOTH OF THOSE WERE IN FACT WITHIN THE NORMAL
      13    RANGE, 8800 AND 9400.
      14         LOOKING FAR LEFT, WHICH WOULD BE THE MOST RESENT RESULT
      15    YOU SEE A 15.0, THAT MEANS THAT THE WHITE BLOOD COUNT WAS
      16    15,000.  THERE IS A CAPITAL H NEXT TO IT WHICH IS A LITTLE
      17    THING THAT THE COMPUTER GENERATES TO KIND OF CLUE THE
      18    PHYSICIAN IN CASE HE MISSED IT OR SOMETHING THAT THAT'S HIGH
      19    AND, IN FACT, IN THIS CONTEXT IN THIS PATIENT TO ME THAT'S
      20    ALARMINGLY SO.
      21    Q.  AND INDICATIVE OF WHAT?
      22    A.  SEVERE INFECTION.
      23    Q.  AND THEN IF YOU'LL GO DOWN THAT COLUMN WE GET TO A
      24    COLUMN IT LOOKS LIKE, IT SAYS, SEGS AND THEN A PERCENTAGE.
      25    A.  RIGHT.


                                                                       3304



       1    Q.  WOULD YOU WOULD YOU WALK US THROUGH WHAT THE
       2    SIGNIFICANCE OF THAT FINDING IS IN THAT TEST REPORT DATED
       3    JANUARY 5, '96?
       4    A.  YES.  SEGS ARE THE TYPES OF CELLS THAT I REFERRED TO AS
       5    P.M.N.'S, IT MEANS THE SAME THING AND THEY ARE JUST
       6    INTERCHANGEABLE NAMES.  OF THE WHITE BLOOD CELLS THERE'S
       7    SEGS, THERE'S LYMPHOCYTES THERE'S MONOCYTES AND THERE'S
       8    EOSINOPHILS. AND IF YOU LOOK OVER ON THE RIGHT, YOU'LL SEE
       9    THE NORMAL PERCENTAGES OF THOSE TYPES OF CELLS AMONG, YOU
      10    KNOW, THE 100 PERCENT OF WHITE BLOOD CELLS AND THE SEGS ARE
      11    INVARIABLY THE MOST COMMON.  NORMAL RANGE IS 36 TO
      12    66 PERCENT AND ON DOWN.
      13         NOW, YOU CAN SEE, IN FACT, THAT -- THIS IS KIND OF
      14    INTERESTING, THAT ON ADMISSION HER PERCENTAGE OF SEGS WAS
      15    WITHIN THE NORMAL RANGE, 59 PERCENT.  ON THE 1ST, EVEN
      16    THOUGH THE TOTAL WHITE BLOOD COUNT WAS WITHIN THE NORMAL
      17    RANGE, 8800, THE SEGS WERE ELEVATED.  THIS IS ACTUALLY THE
      18    FIRST SUBTLE CLUE THAT AN INFECTIOUS PROCESS IS
      19    ACCELERATING.
      20    Q.  AND THAT'S THE DAY WHEN IT'S FIRST DOCUMENTED OF THE
      21    FISTULA; IS THAT RIGHT?
      22    A.  CORRECT, THAT'S RIGHT.  SO IT'S COINCIDENT WITH THAT.
      23    AND SO WHAT THAT MEANS IS THAT THE INFECTION IS JUST GETTING
      24    ROLLING AND THE FIRST SIGN AND THIS IS QUITE COMMON IS THAT
      25    THE TOTAL WHITE BLOOD COUNT IS NORMAL BUT THE PERCENTAGE OF


                                                                       3305



       1    SEGS IS ELEVATED.
       2         BY THE 5TH, THE PERCENTAGE IS 91.2 PERCENT AND I DON'T
       3    THINK I'VE EVER SEEN IN THE HUNDREDS OF THOUSANDS OF WHITE
       4    COUNTS I'VE SEEN ONE ABOVE ABOUT 93 OR 4 PERCENT.  AND WHAT
       5    THAT MEANS IS THAT THERE'S SEVERE INFECTION PRESENT AND
       6    LIKELY SEPSIS WHICH MEANS THAT THE INFECTION HAS BECOME
       7    BLOOD BORN AND IS TAKING OVER THE BODY.  AND WHEN YOU LOOK
       8    AT A WHITE COUNT LIKE THIS WHAT IT MEANS IS YOU'VE GOT
       9    SOMEBODY WHO IS IN EXTREME DANGER OF DYING VERY, VERY SOON.
      10    Q.  NOW IF YOU --
      11             THE COURT:  OKAY.  YOU ARE GOING TO BE A LITTLE
      12    LONGER.
      13             MR. STIRBA:  YES, I AM, JUDGE, CERTAINLY.
      14             THE COURT:  LADIES AND GENTLEMEN, IT'S NOON SO
      15    LET'S TAKE OUR LUNCH BREAK NOW TO 1:30.  AND DURING THAT
      16    TIME REMEMBER IT'S YOUR DUTY NOT TO CONVERSE AMONG
      17    YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE
      18    ADDRESSED BY ANYONE ON THE SUBJECT OF THIS TRIAL AND IT'S
      19    YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE
      20    IS FINALLY SUBMITTED TO YOU AFTER YOU'VE HEARD ALL THE
      21    EVIDENCE.  ALSO REMEMBER NOT TO LISTEN TO ANY RADIO,
      22    TELEVISION, NEWS REPORTS OR NEWSPAPER MAGAZINE REPORTS ABOUT
      23    THE TRIAL.  SO WE'LL SEE YOU BACK HERE AT 1:30 AND JUST
      24    LEAVE ALL THESE BINDERS AND THINGS ON THE CHAIRS.
      25               (WHEREUPON THE JURY WAS EXCUSED.)


                                                                       3306



       1             THE COURT:  YOU MAY BE SEATED AND THE RECORD WILL
       2    REFLECT THAT THE JURY HAS LEFT.  YOU CAN TAKE YOUR SEAT DOWN
       3    THERE YOU DON'T NEED TO SIT THERE IF YOU WANT.
       4             THE WITNESS:  THANK YOU, YOUR HONOR.
       5             THE COURT:  OKAY.  WE INDICATED OR I INDICATED
       6    EARLIER THAT THERE WAS A MOTION THAT WAS FILED, A MOTION FOR
       7    SANCTIONS BASED ON PLAINTIFF'S VIOLATIONS OF COURT ORDERS
       8    AND UNPROFESSIONAL CONDUCT.  DO YOU WISH TO ADDRESS THAT AT
       9    THIS POINT?
      10             MS. BARLOW:  YOUR HONOR, COULD WE DO THAT AFTER
      11    LUNCH?  I'VE BEEN -- IT'S ADDRESSED TOWARDS ME AND I'VE BEEN
      12    INVOLVED IN THE PRESENTATION OF EVIDENCE THIS MORNING AND I
      13    WOULD APPRECIATE A CHANCE TO LOOK AT IT.
      14             THE COURT:  OKAY.
      15             MR. STIRBA:  IN FACT, JUDGE, IT'S NOT -- IT'S
      16    SOMETHING THAT WE CAN ADDRESS WHEN IT'S CONVENIENT FOR
      17    COUNSEL AND THE COURT SO WHENEVER THAT IS AND IF IT'S NOT --
      18             THE COURT:  WHAT TIME DO YOU WANT TO DO IT?
      19             MS. BARLOW:  I WOULD IMAGINE 15 MINUTES WOULD BE
      20    LONG ENOUGH TO COVER IT IF YOU WANT TO DO IT AT 1:15.
      21             THE COURT:  WILL THAT GIVE YOU ENOUGH TIME?
      22             MR. STIRBA:  I -- QUITE FRANKLY, JUDGE, IS THIS
      23    SOMETHING MAYBE WE COULD DEAL WITH MAYBE RIGHT AT THE END OF
      24    THE DAY OR RIGHT FIRST THING IN THE MORNING BECAUSE --
      25             THE COURT:  OKAY.  WOULD YOU CARE?


                                                                       3307



       1             MS. BARLOW:  WELL, IT'S HIS MOTION AND I WOULD
       2    REALLY LIKE TO GET IT ADDRESSED.
       3             MR. STIRBA:  WELL, FINE, 1:15.
       4             THE COURT:  OKAY.  LET'S GO 1:15 AND BE BACK HERE
       5    AT THAT TIME.
       6            (WHEREUPON A LUNCH RECESS WAS TAKEN.)
       7
       8
       9
      10
      11
      12
      13
      14
      15
      16
      17
      18
      19
      20
      21
      22
      23
      24
      25


                                                                       3308



       1         (WHEREUPON THE AFTERNOON SESSION BEGINS.)
       2             THE COURT:  OKAY.  WE'RE BACK ON THE RECORD OUTSIDE
       3    THE PRESENCE OF THE JURY.  IT LOOKS LIKE OUTSIDE THE
       4    PRESENCE OF ALL THE PUBLIC.  NOBODY IS HERE.
       5         THERE HAS BEEN A MOTION FILED THAT'S ENTITLED A MOTION
       6    FOR SANCTIONS BASED ON PLAINTIFF'S VIOLATIONS OF COURT
       7    ORDERS AND UNPROFESSIONAL CONDUCT.  SO, MR. STIRBA, THAT'S
       8    YOUR MOTION?
       9             MR. STIRBA:  YES, YOUR HONOR.  THANK YOU.  I DIDN'T
      10    FILE THIS LIGHTLY.  I'LL TELL YOU WHY I DID FILE IT.  IT
      11    SEEMS LIKES THERE'S A REPEATED PATTERN IN THIS CASE OF
      12    EITHER ASKING QUESTIONS DIRECTLY CONTRARY TO WHAT THE COURT
      13    HAS ALREADY RULED; ASKING QUESTIONS WHOSE ONLY PURPOSE IS TO
      14    POTENTIALLY INJECT SOME PREJUDICIAL AND EXTRANEOUS
      15    INFORMATION IN FRONT OF THE JURY; OR TO SOMEHOW SOUR, FOR
      16    THE PRESS'S, I GUESS, GOOD, THE PUBLICITY IN THIS CASE
      17    AGAINST THE DEFENDANT.  YOU KNOW, I'M WILLING TO PUT UP WITH
      18    IT FOR SO LONG THEN I FEEL I HAVE TO DO SOMETHING.
      19         I'M FULLY AWARE, PROBABLY AS AWARE AS ANYBODY, THAT
      20    THESE PROCESSES AND TRIALS ARE DIFFICULT.  THAT OBVIOUSLY
      21    PEOPLE DO AND SAY THINGS SOMETIMES COMPLETELY INADVERTENTLY,
      22    JUST THROUGH THEIR OWN EMOTIONAL WEARINESS OR EXCITEMENT OR
      23    WHAT HAVE YOU.  THAT'S NOT WHAT I'M TALKING ABOUT.
      24         I AM CONCERNED, FOR EXAMPLE, THAT WHAT PRECIPITATED
      25    THIS WAS A QUESTION YESTERDAY ABOUT MORPHINE.  I REALLY


                                                                       3309



       1    DON'T THINK THERE'S BEEN ANY QUESTION ABOUT WHAT IS ON OR
       2    OFF LIMITS WITH RESPECT TO MORPHINE IN THIS CASE.  COUNSEL
       3    ASKED TWO QUESTIONS.  ONE I LET GO, ABOUT WAS THERE ANY
       4    MORPHINE BEFORE.  PROBABLY BECAUSE I WAS ASLEEP.  THE OTHER
       5    TIME I JUST THOUGHT, WELL, NO, I'M NOT GOING TO LET THAT ONE
       6    GO.  IT'S CLEAR THAT THAT'S NOT EVEN PART OF THE CASE.  THE
       7    ONLY PURPOSE TO ASK THE QUESTION, THE ONLY PURPOSE I COULD
       8    SEE, WAS TO SOMEHOW INJECT SOMETHING BEFORE THIS JURY.
       9         I DON'T WANT A MISTRIAL.  WE'RE AT THE POINT WHERE
      10    WE'VE GONE THROUGH THIS FOR HOW MANY WEEKS, HOW MANY
      11    WITNESSES, HOW MUCH HAS BEEN GOING ON.  WE'RE GETTING TO
      12    THAT CUSP WHERE WE'LL HAVE A DIFFICULT TIME.  THAT WAS A
      13    MISTRIAL QUESTION YESTERDAY, AS FAR AS I WAS CONCERNED.
      14    THIS IS ON TOP OF THE OTHER THINGS WE INDICATED IN THE
      15    ORDER.  I THINK IT WAS ABSOLUTELY, COMPLETELY, BEYOND THE
      16    PALE OF ANY RATIONAL REASON THAT I COULD EVER SEE FOR A
      17    LAWYER TO STAND UP, WHEN THE PRESS IS ALL OVER THIS THING,
      18    IN OPEN COURT, WITHOUT ANY ADVANCE WARNING, AND SAY WE WANT
      19    TO MAKE A PROFFER.  AND THEN PROFFER WHAT WAS ESSENTIALLY --
      20    WHAT WAS PROFFERED TO YOUR HONOR, WHICH EVENTUALLY ENDED UP
      21    AS THE HEADLINE, APPARENTLY, IN ONE OF THE PAPER