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Trial Transcript Vols. 10 -13
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3 *****
4 STATE OF UTAH, )
)
5 PLAINTIFF, )
) REPORTER'S TRANSCRIPT
6 VS. )
) CASE NO. 991700983
7 ROBERT ALLEN WEITZEL, )
)
8 DEFENDANT. )
9 *****
10
11 TRIAL - VOLUME 10 OF 21
12 JUNE 22, 2000
13 HONORABLE THOMAS L. KAY
14
15 *****
16 APPEARANCES:
17 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
18 MS. CHARLENE BARLOW
19 FOR THE DEFENDANT: MR. PETER STIRBA
MR. JOHN WARREN MAY
20
21
22
23
24
25
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1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 THE COURT: OKAY. WE ARE PRESENT WITHOUT THE JURY
3 TO DISCUSS SOME OF THE ITEMS THAT WE WERE DISCUSSING
4 YESTERDAY AFTERNOON.
5 OKAY. JUST FOR -- JUST FOR THE RECORD, THERE WAS A
6 CASE THAT I RAN ACROSS WHEN WE STARTED TALKING ABOUT THE
7 MENS REA OF A DEPRAVED INDIFFERENCE MURDER. THE CASE IS
8 STATE OF UTAH VERSUS BLUBAUGH, B-L-U-B-A-U-G-H, AND IT IS
9 904 P.2D 688, UTAH COURT OF APPEALS 1995.
10 IN THAT CASE -- IT'S ON PAGE EIGHT OF -- WELL, WE -- 0
11 LOOKS LIKE ONE OF THE THINGS OFF OF THE COMPUTER. IT TALKS
12 UNDER THE HEADING, INSUFFICIENCY OF EVIDENCE. IT SAYS,
13 "DEFENDANT WAS CONVICTED OF DEPRAVED INDIFFERENCE MURDER
14 PURSUANT TO UTAH CODE ANNOTATED 75 -- 76-5-203(1)(C). THE
15 ELEMENTS OF THIS OFFENSE ARE, ONE, ENGAGING IN CONDUCT
16 CREATING A GRAVE RISK OF DEATH TO ANOTHER THAT RESULTED IN
17 THE DEATH OF THAT INDIVIDUAL (THE ACTUS REUS).
18 TWO, KNOWING THAT THIS CONDUCT OR THE CIRCUMSTANCES
19 SURROUNDING THIS CONDUCT CREATED A GRAVE RISK OF DEATH TO
20 THIS INDIVIDUAL (THE MENS REA).
21 AND THREE, ACTING UNDER CIRCUMSTANCES EVIDENCING A
22 DEPRAVED INDIFFERENCE TO HUMAN LIFE, A QUALITATIVE JUDGMENT
23 TO BE MADE BY THE JURY IN DETERMINING THE EXTENT OF THE
24 DEFENDANT'S CONDUCT. IT IS NOT A DESCRIPTION OF THE MENS
25 REA INVOLVED IN THE COMMISSION OF THE CRIME, BUT AN
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1 EVALUATION OF THE ACTUS REUS.
2 SO IN ANSWER TO THE QUESTION THAT WE HAD YESTERDAY,
3 UTAH COURT OF APPEALS IS SAYING, KNOWING THAT THIS CONDUCT
4 OR THE CIRCUMSTANCES SURROUNDING THIS CONDUCT CREATED A
5 GRAVE RISK OF DEATH TO THE INDIVIDUAL IS THE MENS REA UNDER
6 THAT ASPECT. SO THAT WAS ONE OF THE ISSUES.
7 OKAY. ONE OF THE THINGS THAT I HAVE LOOKED AT,
8 PREVIOUSLY I HAVE RULED IN THIS CASE CONSISTENT WITH WHAT
9 MR. WILSON STATED THE STATE'S THEORY WAS REGARDING THAT
10 DR. WEITZEL ENGAGED IN A REGIMEN OF LARGE DOSES OF
11 MEDICATION THAT MADE THEM SLEEPY AND LETHARGIC AND THEN GAVE
12 THEM MORPHINE THAT KILLED THEM. THAT I HAD MENTIONED
13 EARLIER THAT IT WASN'T GOING TO BE QUOTED, TOTALITY OF THE
14 CIRCUMSTANCES AND THAT EVIDENCE OF POOR DOCTORING THAT
15 WEREN'T RELATED TO WHAT WAS THE ACTIONS THAT WERE CONSISTENT
16 WITH THE STATE'S THEORY, LED TO THE DEATHS. AND I GAVE THE
17 EXAMPLE OF X-RAYS, FAILURE TO TAKE AN X-RAY.
18 WELL, NOW WE'RE FACED WITH THIS ISSUE OF WHAT THE
19 EXPERTS CAN TESTIFY AND RULE 704(B). WHAT I'M GOING TO DO
20 IS THE FOLLOWING. I BELIEVE -- AND FROM WHAT WE DISCUSSED
21 YESTERDAY -- I BELIEVE THAT IT IS APPROPRIATE THAT EXPERTS
22 ARE GOING TO BE ABLE TO TESTIFY WHETHER DR. WEITZEL'S CARE
23 CAUSED OR DIDN'T CAUSE THE DEATH OF THESE FIVE PATIENTS.
24 SECONDLY, WHETHER DR. WEITZEL'S CARE AND TREATMENT OF
25 THESE FIVE PATIENTS WAS OR WAS NOT APPROPRIATE. AND IF THE
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1 EVIDENCE THE EXPERT IS GIVING IS THAT THE CARE WAS NOT
2 APPROPRIATE, THEN WHAT SHOULD HAVE BEEN THE APPROPRIATE
3 CARE.
4 NOW, I'M SAYING THAT ALL IN THE CONTEXT THAT, YOU KNOW,
5 I'M NOT CHANGING THE THING THAT, YOU KNOW, IF AN X-RAY WAS
6 NOT TAKEN HERE OR SOMETHING ELSE, THAT THAT'S GOING TO BE
7 COMING IN AS APPROPRIATE OR NOT APPROPRIATE CARE. IT HAS TO
8 BE LINKED TO WHETHER OR NOT -- WHAT LED TO THE DEATHS. AND
9 IF THE DEATHS ARE THE MEDICATION, MAKE SLEEPY, GIVE MORPHINE
10 TO KILL, IN THAT LIGHT. NOT GOING TO GIVE A BLANKET THING
11 SAYING EACH AND EVERY THING THAT I CAN IMAGINE, BUT X-RAYS
12 ARE THE EXAMPLE WE'VE USED PREVIOUSLY.
13 NOW, WHAT EXPERTS CANNOT TESTIFY IS NUMBER ONE,
14 DR. WEITZEL'S MENTAL STATE. UNDER RULE 704(B), THAT CAN'T
15 BE DONE. AND UNDER THE FEDERAL RULE 704(B) WHICH IS
16 IDENTICAL TO OUR RULE, UNDER SUBDIVISION B, THE COMMENT TO
17 FEDERAL RULE 704, IT STATES THIS: "THE PURPOSE OF THIS
18 AMENDMENT IS TO ELIMINATE THE CONFUSING SPECTACLE OF
19 COMPETING EXPERT WITNESSES TESTIFYING TO DIRECTLY
20 CONTRADICTORY CONCLUSIONS AS TO THE ULTIMATE LEGAL ISSUE TO
21 BE FOUND BY THE TRYER OF FACT."
22 THEN THEY GIVE THIS EXAMPLE THAT'S NOT OUR EXAMPLE, BUT
23 IT HAS TO DO WITH PSYCHIATRIC TESTING. IT SAYS, "UNDER THIS
24 PROPOSAL, EXPERT PSYCHIATRIC TESTIMONY WOULD BE LIMITED TO
25 PRESENTING AND EXPLAINING THEIR DIAGNOSIS SUCH AS WHETHER
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1 THE DEFENDANT HAD A SEVERE MENTAL DISEASE OR DEFECT AND WHAT
2 THE CHARACTERISTICS OF SUCH A DISEASE OR DEFECT, IF ANY, MAY
3 HAVE BEEN."
4 IN OTHER WORDS, INSTEAD OF SAYING HE'S INSANE OR HE'S
5 NOT INSANE, THEY COULDN'T TESTIFY ABOUT THAT. SO CONSISTENT
6 WITH THAT, CONSISTENT WITH THE CASE OF UNITED STATES VERSUS
7 WOOD, THEY CAN'T TESTIFY THAT DR. WEITZEL KNEW OR INTENDED
8 OR ACTED WITH DEPRAVED INDIFFERENCE. AND ALSO THEY CAN'T
9 USE LEGAL CONCLUSIONS UNDER THE PREVIOUS CASE, THE STATE
10 VERSUS TENNEY, OUR UTAH APPELLATE COURT CASE THAT SAYS RULE
11 704 IS NOT INTENDED TO ALLOW A WITNESS TO GIVE A LEGAL
12 CONCLUSION.
13 SO HOW THAT WOULD APPLY IS THAT I DO NOT BELIEVE THAT,
14 FOR EXAMPLE, UNDER THE DEPRAVED INDIFFERENCE ASPECT, IF
15 SOMEBODY ASKS, YOU KNOW, DID -- SHOULD HE HAVE KNOWN THE
16 RISK OF DEATH WAS GRAVE, EITHER THE QUESTIONS THAT ARE
17 PHRASED EITHER KNEW OR SHOULD HAVE KNOWN ARE NOT GOING TO BE
18 ASKED AND ARE NOT GOING TO BE ASKED BECAUSE THEY ARE THE
19 MENTAL STATE.
20 I BELIEVE -- THE POINTS CAN BE RAISED, FOR EXAMPLE,
21 WHAT DID HE DO. WAS THIS APPROPRIATE. IF IT WAS
22 APPROPRIATE TO GIVE ONE MILLIGRAM AND HE GAVE 20 MILLIGRAMS,
23 YOU KNOW, HE GAVE 20 TIMES AS MUCH. THAT'S NOT SAYING IT'S
24 A GROSS DEVIATION IN THE WORDS -- THE TECHNICAL WORDS OF THE
25 LAW, AND THAT'S WHAT A WITNESS CAN'T SAY, NO, THAT'S A GROSS
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1 DEVIATION. BUT HE CAN SAY HE GAVE 15 TIMES OR 5 TIMES OR HE
2 GAVE IT WHEN IT SHOULDN'T HAVE BEEN GIVEN.
3 AND SO THAT'S HOW I'M GOING TO DO THAT AND I'M BASING
4 THAT ON 704(B), U.S. VERSUS WOOD, AND THE COMMENT TO THE
5 FEDERAL RULE THAT I JUST READ.
6 ALSO THE COMMENT TO THE FEDERAL RULE STATES, WHERE IT
7 SAYS TO ELIMINATE THE CONFUSING SPECTACLE OF COMPETING
8 EXPERT WITNESSES TESTIFYING TO DIRECTLY CONTRADICTORY
9 CONCLUSIONS, IF SOMEBODY GETS UP THERE AND SAYS SHOULD KNOW
10 AND THEN THE OTHER PERSON SAYS, NO, THEY SHOULDN'T KNOW,
11 THAT'S EXACTLY WHAT IT DOES. AND WHEN WE TALK ABOUT
12 KNOWLEDGE AND THAT BEING AN ELEMENT OF ALL OF THESE CRIMES,
13 THEN I JUST THINK WE'RE GOING TO GET FAR AFIELD AND WE'RE
14 GOING TO CREATE NOTHING BUT AIR.
15 AND SO THAT IS WHAT I'M -- MY RULING'S GOING TO BE. IS
16 THERE ANY QUESTIONS BASED ON WHAT I'VE SAID?
17 MR. WILSON: JUST FOR CLARIFICATION, YOUR HONOR, IF
18 I WERE TO ASK THE EXPERT THE QUESTION, DO YOU HAVE AN
19 OPINION AS TO WHETHER OR NOT CERTAIN CONDUCT CREATED A GRAVE
20 RISK OF DEATH, ARE YOU TELLING ME THAT WOULD BE AN
21 INAPPROPRIATE QUESTION? I'M NOT SAYING THAT THE DOCTOR KNEW
22 OR SHOULD KNOW. I'M JUST SAYING IN THIS PARTICULAR PATIENT
23 DID THAT CONDUCT CREATE A GRAVE RISK OF DEATH?
24 THE COURT: WHAT IS YOUR VIEW OF THAT?
25 MR. STIRBA: I THINK THAT IS COUCHED IN TERMS OF A
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1 LEGAL CONCLUSION.
2 THE COURT: WELL, THEN I GUESS THE PROBLEM IS IT --
3 HOW WOULD THE STATE -- THE STATE MUST HAVE THE OPPORTUNITY
4 TO PUT ON EVIDENCE OF ITS CRIMES AND WHAT WE'RE TRYING TO
5 TALK ABOUT IS HOW DO WE AVOID USING LEGAL TERMS TO DO THAT.
6 AND SO IF THAT'S INAPPROPRIATE, DO YOU HAVE SOME OTHER
7 SUGGESTION? BECAUSE THAT'S WHAT WE'RE TALKING ABOUT.
8 THE THING THAT I'VE BEEN GOING THROUGH ALL NIGHT
9 LOOKING ALL THROUGH ALL OF THIS WAS SIMPLY, YOU NEED TO PUT
10 ON YOUR EVIDENCE OF THAT, BUT IT CAN'T BE COUCHED IN LEGAL
11 TERMS. BUT IT OUGHT TO BE ABLE TO SAY -- I MEAN, MY EXAMPLE
12 THAT I COULD SEE WAS LIKE ON MEDICATION. YOU KNOW, LIKE --
13 YOU KNOW, WHETHER IT WAS APPROPRIATE OR NOT. THAT IT
14 GROSSLY -- WAS IT A GROSS DEVIATION. YOU CAN SAY IT WAS 15
15 TO ONE. YOU DON'T SAY THE WORD GROSS DEVIATION. AND NOW
16 WE'RE ON THE EARLIER QUESTION ABOUT CAUSING A GRAVE RISK OF
17 DEATH.
18 MS. BARLOW: YOUR HONOR, THAT IS NOT MENS REA, DID
19 IT CREATE A GRAVE RISK OF DEATH. THE KNOWLEDGE OF IT WOULD
20 BE MENS REA.
21 THE COURT: DID HE KNOW.
22 MS. BARLOW: AND SO IT'S UNDER 704(A) ABOUT WHICH
23 AN EXPERT CAN OPINE.
24 THE COURT: OKAY.
25 MR. STIRBA: IF I MAY JUST COMMENT. THE WAY I LOOK
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1 AT THAT, JUDGE, IS THAT TO ME IT'S ARGUMENT. AND SO TO ASK
2 ESSENTIALLY AN EXPERT AN OPINION QUESTION WHICH IS
3 ESSENTIALLY JUST A REPACKAGING OF ULTIMATE ARGUMENT IS NOT
4 REALLY THE KIND OF FACT OR OPINION THAT IS GOING TO HELP THE
5 JURY. I MEAN, OBVIOUSLY THE EXPERT CAN TESTIFY AS TO THE
6 CONSEQUENCES THAT ENSUE FROM CERTAIN CONDUCT, IN THEIR
7 OPINION. BUT, FIRST OF ALL, TO COUCH IT AND EVEN ASK IT
8 THAT WAY IS I THINK INAPPROPRIATE BECAUSE THAT'S WHAT YOU
9 ARE GOING TO ARGUE.
10 IN OTHER WORDS, YOU GET THE FACTS OUT AND IF THE
11 WITNESS SAYS: LOOK, I THINK MY OPINION IS BY GIVING LET'S
12 SAY 200 MILLIGRAMS OF TRAZODONE AT THIS PARTICULAR TIME THAT
13 THAT WAS GOING TO SERIOUSLY COMPROMISE THIS PATIENT, AND
14 THAT IN THIS PARTICULAR INSTANCE I THINK THAT LED TO THEIR
15 DEATH. THAT'S WHAT AN EXPERT CAN TESTIFY TO.
16 AND THEN, OBVIOUSLY, COUNSEL GETS UP -- AND THERE'S
17 GOING TO BE INSTRUCTIONS TO THE JURY ON ALL OF THIS -- AND
18 THEY SAY OKAY, HERE'S WHAT THE EVIDENCE IS AND HERE'S WHY IT
19 CREATED A GRAVE RISK OF DEATH. I DON'T THINK AN EXPERT
20 NEEDS TO TESTIFY TO THAT IN THAT LEGAL WAY 'CAUSE THAT'S
21 ARGUMENT.
22 MR. WILSON: I DON'T THINK IT'S LEGAL ARGUMENT AT
23 ALL IN TERMS OF IT'S NOT -- YOU HAVE TO HAVE A STANDARD TO
24 BE ABLE TO EVALUATE THE EVIDENCE AND THE CONDUCT AGAINST.
25 AND IF THAT STANDARD IS THE STATE HAS TO PROVE EITHER AN
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1 INTENTIONAL, KNOWING ACT OR DEPRAVED INDIFFERENCE ACT WE
2 HAVE TO BE ABLE TO HAVE OUR EXPERTS OPINE AS TO THE DEGREE
3 OF RISK AND AS TO THE DEVIATION -- I WOULD SUBMIT TO THE
4 COURT -- AS TO THE DEVIATION FROM THE STANDARD.
5 NOW, YOU CAN FORM THE QUESTION IN A VARIETY OF WAYS AND
6 YOU CAN SAY TO THE EXPERT, DID THAT CREATE A RISK AND CAN
7 YOU CHARACTERIZE THAT RISK FOR US AS TO THIS PARTICULAR
8 PATIENT? YOU KNOW, THAT PARTICULAR CONDUCT. AND THEY CAN
9 OPINE ON THEIR EXPERT OPINION AS TO WHAT THE DEGREE OF RISK
10 WAS TO THIS PATIENT.
11 I THINK YOU HAVE A SITUATION THAT DEVELOPS WHERE YOU
12 HAVE A VARIETY OF CONDUCT THAT -- AND -- AND I UNDERSTAND
13 THE COURT'S FEELINGS ABOUT THE TOTALITY OF THE
14 CIRCUMSTANCES, BUT AS YOU PUT IN VARIOUS ASPECTS OF CONDUCT
15 UPON CONDUCT UPON CONDUCT UPON CONDUCT, THAT INCREASES THE
16 RISK TO THESE PARTICULAR PATIENTS.
17 NOW, MAYBE YOU WAIT TILL THE VERY END TO HAVE HIM OPINE
18 AS TO THE DEGREE OF RISK POSED TO THIS PATIENT AND YOU DO
19 NOT -- YOU DO NOT TALK ABOUT IT IN -- AS TO EACH ITEM OF
20 CONDUCT, BUT I THINK THAT IT SORT OF ROPES US IN IN TERMS OF
21 BEING ABLE TO PRESENT OUR CASE. AND I THINK WE'RE ENTITLED
22 TO FAIRLY PRESENT OUR CASE TO THIS COURT AND TO THE JURY AND
23 TO HAVE OUR EXPERTS OPINE. THIS IS A VERY TECHNICAL AND
24 COMPLEX CASE.
25 THE COURT: IT'S A VERY COMPLEX CASE. I'LL AGREE
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1 WITH THAT.
2 MR. WILSON: I APPRECIATE THAT, YOUR HONOR. AND I
3 THINK THEY NEED TO HAVE THE ABILITY TO HAVE THESE EXPERTS
4 NOT ONLY EDUCATE THEM AS TO THESE DRUGS, BUT ALSO EDUCATE
5 THEM AS TO THE STANDARD OF CARE OF THESE DOCTORS AND THESE
6 PHYSICIANS AS TO HOW THEY ARE SUPPOSED TO OPERATE.
7 NOW, OBVIOUSLY THE DEFENSE CAN COME IN AND PRESENT
8 EVIDENCE TO THE CONTRARY AND THAT'S WHAT A TRIAL IS ALL
9 ABOUT. AND SO I GUESS I'M A LITTLE BIT FRUSTRATED WITH
10 KNOWING WHERE I'M GOING, YOU KNOW, IN TERMS OF THE
11 INTERROGATING THESE WITNESSES AND I THINK WE'RE PROBABLY --
12 WE'RE PROBABLY JUST GOING TO HAVE TO TAKE IT ON A
13 CASE-BY-CASE BASIS AND ADDRESS IT AS WE GO.
14 THE COURT: WHAT I'M TRYING TO DO IS -- OBVIOUSLY,
15 ABSENT HAVING A SPECIFIC QUESTION PHRASED, WE CAN'T DO IT.
16 I MEAN, I THINK THE ISSUE THAT WE GOT TO YESTERDAY THAT WAS
17 HANGING US UP WAS THE KNOW OR SHOULD HAVE KNOWN, AND THE
18 MORE THAT I'VE LOOKED AT THAT, THE MORE THAT I'VE READ THE
19 CASES THAT YOU'VE SUBMITTED AND THE OTHER MATERIALS, IF I
20 WERE TO SAY -- IF THE JURY KEPT HEARING KNOW, KNOW, SHOULD
21 HAVE KNOWN, SHOULD HAVE KNOWN, THEN I BELIEVE THAT'S GOING
22 TO VIOLATE 704(B). AND I BELIEVE THAT IF YOU GOT A
23 CONVICTION ON THAT, THAT IT WOULD BE OVERTURNED. I MEAN,
24 THAT'S MY VIEW. BUT IF I'M WRONG, I'M WRONG. IF I ALLOW
25 THAT ALL IN, WE DID THIS, WHAT WE'RE DOING IS GOING TO BE IN
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1 VAIN.
2 MS. BARLOW: YOUR HONOR, I DON'T THINK WE HAVE ANY
3 PROBLEM WITH THAT. I THINK WE UNDERSTAND THAT PART FULLY
4 AND THAT'S MENS REA, THE WORD KNOW.
5 THE OTHER ISSUE THAT JUST NOW WE TALKED ABOUT AGAIN AND
6 I THOUGHT WE TALKED ABOUT YESTERDAY IS WHETHER HE CAN OPINE,
7 ANY WITNESS CAN OPINE, AS TO WHETHER IT CREATED A GRAVE RISK
8 OF DEATH, WHICH IS UNDER 704(A) WHICH IS AN ULTIMATE ISSUE.
9 BUT UNDER 704(A), AS LONG AS IT'S NOT MENS REA, WHICH THAT
10 IS NOT, IT DOESN'T SAY ANYTHING ABOUT WHETHER DEFENDANT KNEW
11 IT CAUSED --
12 THE COURT: BUT THE ISSUE EVEN UNDER 704(A) UNDER
13 STATE VERSUS TENNEY, THAT RULE 704 IS NOT GOING TO BE
14 ALLOWED -- INTENDED TO ALLOW A WITNESS TO GIVE A LEGAL
15 CONCLUSION. AND IF IT'S COUCHED A GRAVE RISK OF DEATH, AND
16 THAT'S EXACTLY THE JURY INSTRUCTION, THEN HOW IS THAT NOT
17 COUCHED IN A LEGAL CONCLUSION? THIS IS NOT AN ISSUE OF WHEN
18 A -- I AGREE WITH YOU. IT'S NOT AN ISSUE OF INTENT. IT'S
19 NOT AN ISSUE OF 704(B).
20 IT'S AN ISSUE THAT, ONE, NOW IS, CAN A WITNESS TESTIFY
21 IN TERMS OF LEGAL CONCLUSIONS? AND I AGREE WITH WHAT
22 MR. WILSON SAID. THE STATE NEEDS TO BE ABLE TO PUT ON THEIR
23 EVIDENCE AND I DON'T WANT TO HAMPER THEM PUTTING ON THEIR
24 EVIDENCE. I JUST DON'T WANT TO HAVE IT BEING A LEGAL ERROR
25 BECAUSE THE WAY THE QUESTION IS PHRASED. AND I'M ASKING
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1 BASICALLY IF ANYBODY HAS A SUGGESTION. I THINK YOU OUGHT TO
2 BE ABLE TO PUT THAT TESTIMONY ON ABOUT THE RISK OF DEATH.
3 IT'S JUST HOW IS THAT QUESTION GOING TO BE PHRASED. IF YOU
4 SAY, IS IT A GRAVE RISK OF DEATH AND THE LEGAL INSTRUCTION
5 IS GRAVE RISK OF DEATH, THEN IS UNDER STATE VERSUS TENNEY
6 THE WITNESS GIVING A LEGAL CONCLUSION?
7 MS. BARLOW: I UNDERSTAND, YOUR HONOR.
8 THE COURT: SO THAT'S --
9 MS. BARLOW: HOPEFULLY WE CAN PHRASE THEM SO WE
10 DON'T RUN AFOUL OF THAT.
11 THE COURT: ARE WE READY TO GO WITH THE WITNESSES?
12 THEN HAVE THE JURY COME IN.
13 MR. STIRBA: WE HAVE FILED SOME MEMORANDA
14 CONCERNING, I THINK, NURSE KAUFMAN AND SOME OF THE OTHER --
15 THE COURT: I APPRECIATE THAT. YOU KNOW, AFTER
16 WORKING ALL NIGHT ON THIS OTHER ISSUE AND THEN COMING HERE
17 THIS AFTERNOON, I UNDERSTAND, I HAVE BRIEFLY READ THROUGH
18 THOSE. I DON'T KNOW -- YOU KNOW, THE JURY IS HERE. I DON'T
19 KNOW IF WE'RE GOING TO ADDRESS THOSE BEFORE, YOU KNOW, WE
20 GET INTO THE WITNESS. I WOULD JUST AS SOON START THE
21 WITNESS AND THEN AT AN APPROPRIATE POINT I THINK WHAT I HAVE
22 MENTIONED IS THAT -- YOU KNOW, IS THIS JUST THE DR. FEHLAUER
23 MOTION THAT YOU ARE TALKING ABOUT? I'VE GOT ALL THE MEMOS.
24 MR. STIRBA: NO. WE FILED -- WE BASICALLY FILED
25 ONE CONCERNING NURSE KAUFMAN BECAUSE WE THINK SHE WAS IN THE
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1 COURTROOM IN VIOLATION OF THE COURT'S EXCLUSIONARY RULE AND
2 THEN THERE WAS SOME OTHER PROBLEMS IN TERMS OF ANY OF HER
3 TESTIMONY RELATING TO THESE -- THIS GRAPH OR THIS CHART OR
4 WHAT HAVE YOU.
5 THE COURT: WHO ARE WE STARTING WITH?
6 MR. STIRBA: I THOUGHT WE ARE STARTING WITH
7 KAUFMAN.
8 MR. WILSON: THAT'S CORRECT, YOUR HONOR. WE WERE
9 STARTING WITH KAUFMAN. I HAVEN'T HAD A CHANCE TO REVIEW
10 PLAINTIFF'S OBJECTION OR HIS MEMORANDUM IN SUPPORT OF THOSE
11 OBJECTIONS. I THINK IT'S IMPORTANT TO HAVE NURSE KAUFMAN
12 TESTIFY FOR TWO REASONS. FIRST OF ALL, WE PLANNED ON
13 INTRODUCING OUR EXHIBITS AND I THINK AS WE DEMONSTRATED IN
14 COURT YESTERDAY, SHE WAS THE INDIVIDUAL WHO PREPARED THOSE
15 EXHIBITS AND WE NEED TO HAVE A PREDICATE FOUNDATION SET ON
16 THOSE EXHIBITS.
17 AS TO HER PRESENCE IN THE COURTROOM, I DON'T THINK
18 THAT'S A VIOLATION OF THE EXCLUSIONARY RULE AT ALL IN THE
19 SENSE THAT AN EXPERT WITNESS IS ENTITLED TO BE IN COURT TO
20 LISTEN TO THE TESTIMONY AND TO HEAR IT AS IT COMES OUT IN
21 ORDER TO PROPERLY FORM THEIR OPINION. SO EVEN THOUGH THERE
22 WAS NO MENTION OF THAT AT THE TIME THAT WE INVOKED THE
23 EXCLUSIONARY RULE, I WOULD SUBMIT TO THE COURT THAT THAT'S
24 THE PURPOSE. SHE DOESN'T HAVE ANY KNOWLEDGE PERSONALLY OF
25 THE CASE. SHE ONLY HAS KNOWLEDGE AS TO WHAT THE MEDICAL
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1 RECORDS SAY AND WHAT THE NURSES HAVE OPINED AND THAT'S THE
2 PURPOSE OF HER TESTIMONY.
3 NOW, IN RESPECT TO THAT PARTICULAR PART OF THE
4 TESTIMONY, WE CAN POSSIBLY RESERVE THAT FOR REBUTTAL. BUT I
5 DON'T THINK THAT'S THE BASIS FOR EXCLUDING HER TESTIMONY
6 HERE IN COURT, PARTICULARLY AS IT PERTAINS TO THE
7 PREPARATION OF THIS TRIAL.
8 THE COURT: WELL, I GUESS THE OTHER -- DO YOU WANT
9 TO GO WITH YOUR OTHER RESPONSE?
10 MR. STIRBA: AND, YOU KNOW, I APOLOGIZE TO THE
11 COURT, BUT THIS JUST HIT US YESTERDAY FOR THE FIRST TIME AT
12 ABOUT 3 OR 4 O'CLOCK. WE WERE UP TILL 1:30 LAST NIGHT
13 TRYING TO DEAL WITH IT. NOW WE'RE WHERE WE ARE.
14 HERE'S THE ISSUE WITH KAUFMAN. THE EXCLUSIONARY RULE
15 WAS INVOKED. THE ONLY REQUEST FROM THE STATE WAS FOR MR. --
16 DETECTIVE MORRISON TO BE IN AND OUT OF THE COURTROOM. ALL
17 OF A SUDDEN AT SOME POINT NURSE KAUFMAN SHOWS UP AND SITS IN
18 THE TRIAL. I DON'T KNOW HOW MANY DAYS SHE WAS HERE. I
19 THINK SHE WAS HERE FOR A FEW DAYS. I DIDN'T EVEN KNOW WHO
20 SHE WAS UNTIL YESTERDAY. SHE WAS SITTING BACK THERE WITH AN
21 ATTORNEY FROM THE HOSPITAL.
22 AND, YOU KNOW, THE EXCLUSIONARY RULE WAS INVOKED. IT
23 WAS INVOKED. THERE WAS NEVER A REQUEST FROM THE STATE TO
24 HAVE HER SIT IN HERE. AND QUITE FRANKLY, THERE'S NO
25 EXCEPTION IN THAT RULE FOR EXPERTS. NOW, COUNSEL'S RIGHT.
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1 THERE ARE CERTAIN CIRCUMSTANCES WHERE YOU HAVE A SUMMARY
2 WITNESS. YOU COULD ASK PERMISSION FOR THE COURT TO HAVE AN
3 EXPERT --
4 THE COURT: HOLD ON. RULE 615(1)(C) SAYS A PERSON
5 WHOSE PRESENCE SHOWN BY A PARTY TO BE ESSENTIAL TO THE
6 PRESENTATION OF THE PARTY'S CAUSE, WHICH I USUALLY INTERPRET
7 AS AN EXPERT WITNESS --
8 MR. STIRBA: WELL --
9 THE COURT: I UNDERSTAND THEY HAVE TO SAY THAT'S
10 THE PERSON. BUT, I MEAN, THAT IS THE PROVISION THAT AN
11 EXPERT WITNESS CAN BE HERE.
12 MR. STIRBA: BUT AN EXPERT OF A CERTAIN KIND UNDER
13 CERTAIN CIRCUMSTANCES. I MEAN, THE RULE SAYS ESSENTIAL TO
14 THE PARTY'S CAUSE. IT JUST DOESN'T MEAN ANY OTHER EXPERT
15 CAN SIT BACK THERE WHO IS ESSENTIAL TO THE CAUSE.
16 USUALLY WHAT HAPPENS, JUDGE, IT'S ESSENTIALLY A SUMMARY
17 EXPERT WITNESS WHO'S GOING TO TESTIFY AT THE END HAVING SOME
18 SUMMARY OF THE EVIDENCE. AND I GUESS IT LOOKS BETTER IF
19 THEY CAN SIT IN COURT AND SAY I HEARD THE WITNESSES TESTIFY.
20 I'VE LOOKED AT ALL THE TRIAL EXHIBITS. THAT'S NOT
21 NURSE KAUFMAN AND NOBODY EVER SAID TO YOU THAT SHE'S
22 ESSENTIAL TO THE PRESENTATION OF THEIR CASE. AND QUITE
23 FRANKLY, IT COULD HAVE BEEN DEALT WITH. IT WASN'T. I THINK
24 WE'VE BE PREJUDICED BY THE FACT THAT THE EXCLUSIONARY RULE
25 HAS BEEN VIOLATED. THAT'S POINT ONE.
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1 POINT TWO IS EVEN MORE FUNDAMENTAL. WE GET TO THE SAME
2 THING. WE'VE REPEATEDLY -- WE GET AN EXPERT REPORT FROM
3 THIS NURSE. IT HAS NOTHING IN THERE, NOT ONE SCINTILLA OF
4 OBSERVATION ABOUT SUPPOSEDLY SOME GRAPH, ABOUT SOME
5 INTERPRETATION OF THE NURSES' NOTES, ABOUT SOME CATEGORY OF
6 LETHARGY TO RESPONSIVENESS. NOTHING. AND NOW, YOU KNOW,
7 JUST YESTERDAY FOR THE FIRST TIME WE LEARN THAT THIS IS WHAT
8 THIS NURSE IS GOING TO DO. SHE'S GOING TO COME IN HERE AND
9 SHE'S GOING TO SAY, I LOOKED AT THOSE NURSES' NOTES AND SHE
10 IS GOING TO PULL ONE LITTLE WORD OUT OF EACH ONE. SHE'S GOT
11 SOME FORMULA AND SHE IS GOING TO SOMEHOW PUT THIS INTO SOME
12 GRAPHIC FORM AND THAT'S ALL OKAY.
13 IT ISN'T OKAY. IT'S CLEARLY -- IT'S CLEARLY
14 INTERPRETATION OF THOSE RECORDS. IT'S CLEARLY CALLING ON
15 HER NURSING EXPERTISE. IT CLEARLY WAS NOT INDICATED IN HER
16 REPORT. AND IT'S CLEARLY IN VIOLATION OF THE COURT'S ORDER
17 WITH RESPECT TO EXPERTS THAT THEY NEEDED TO HAVE THOSE IN ON
18 THE 5TH OF MAY AND THAT IS NOT IN THERE.
19 SO THIS IS CONSISTENT WITH WHAT I'VE BEEN SAYING OVER
20 AND OVER AGAIN. THIS SHOULDN'T BE TRIAL BY AMBUSH. IT
21 SHOULDN'T BE JUST, YOU KNOW, DEFENSE SHOWS UP AND ALL OF A
22 SUDDEN THOSE EXHIBITS -- YOU KNOW, IT'S NOT LIKE THEY
23 HAVEN'T BEEN AROUND FOR A WHILE. IT'S NOT LIKE THE CONCEPT
24 HASN'T BEEN AROUND FOR A WHILE. I ASSUME IT HAS. WE
25 HEARD -- SIX DAYS AGO WE HEARD FEHLAUER WAS GOING TO TESTIFY
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1 AND THERE WAS A BUNCH OF EXHIBITS. I ASSUME THEY WERE ALL
2 PREDICATED UPON THE SAME CONCEPT, BUT ALL OF A SUDDEN THEY
3 GET TROTTED OUT AND BASICALLY HERE WE ARE.
4 I'M SAYING THIS NURSE CAN'T TESTIFY TO ANYTHING THAT
5 ISN'T IN HER REPORT AND WE'VE ALREADY ADDRESSED THINGS IN
6 HER REPORT WHICH WE THINK, QUITE FRANKLY, ARE NOT A MATTER
7 OF EXPERTISE, ARE IRRELEVANT AND SHE SHOULDN'T TESTIFY
8 CONCERNING.
9 BUT CERTAINLY IN TERMS OF THIS GRAPHIC -- AND MAYBE I
10 HAVEN'T EXPLAINED IT CLEARLY. BUT, YOU KNOW, WHAT THERE IS,
11 IS THERE'S SOME GRAPH ON THIS CHART. AND IT'S BASED UPON
12 NURSE KAUFMAN GOING THROUGH THE NURSES' NOTES AND SHE HAS --
13 LOOKS FOR WORDS LIKE LETHARGY, AGITATED, NON-RESPONSIVE.
14 AND THEN WHAT SHE DOES IS SHE ATTEMPTS TO CHARACTERIZE WHAT
15 LIKE, FOR EXAMPLE, SCREAMING MEANS. YOU KNOW, THAT IS
16 EITHER AGITATION OR SOMETHING ELSE OR WHATEVER THE NURSES
17 CHART. AND THEN SHE PUTS A POINT SCALE ON THERE AND THEN
18 SHE PUTS SOME GRAPH ON THE CHART, BASED UPON THIS POINT
19 SCALE. THAT'S ALL INTERPRETATION. THAT ALL RELIES
20 SUPPOSEDLY ON HER NURSING EXPERTISE AND NONE OF THIS WAS
21 DISCLOSED UNTIL JUST YESTERDAY.
22 AND THE FINAL THING IS, THE COURT HAS RULED IN THIS
23 CASE REPEATEDLY, AND I THINK ABSOLUTELY CORRECTLY SO, THAT
24 WE'RE NOT GOING TO HAVE PEOPLE INTERPRET WHAT THOSE NURSES'
25 NOTES MEAN UNLESS IT'S THE AUTHOR OF THOSE NOTES AND WE
2160
1 HAVE -- AND BASICALLY HAVE SOME CONTEXT FOR THE AUTHOR THEN
2 TO OBVIOUSLY SAY WHAT A WORD MEANS OR WHAT HAVE YOU. BUT
3 THIS IS PURE CHARACTERIZATION OF WHAT A WHOLE NOTE MEANS.
4 AND I THINK IT'S CLEAR IN THE EVIDENCE AS THE COURT HAS
5 HEARD IT, THESE PATIENTS CHANGE BY THE SHIFT, BY THE HOUR,
6 CERTAINLY BY THE DAY IN TERMS OF THE BEHAVIOR THAT THEY --
7 THAT THEY -- THAT THEY DISPLAY. AND THERE REALLY ISN'T ANY
8 RESPONSIBLE, FAIR WAY OF SORT OF CHARACTERIZING A DAY. IT
9 JUST ISN'T BECAUSE THEY'RE ALL OVER THE PLACE.
10 THE COURT: OKAY. BUT IS YOUR POINT THAT -- OKAY,
11 SHE SAT HERE THROUGH TRIAL WHERE SHE SHOULDN'T HAVE BEEN
12 HERE, BUT MORE IMPORTANTLY THAT UNDER 77-17-13 YOU SHOULD
13 HAVE GOTTEN A WRITTEN REPORT EXPLAINING THIS PROPOSED
14 TESTIMONY AND THAT WASN'T GIVEN?
15 MR. STIRBA: YES, ABSOLUTELY.
16 THE COURT: AND YOU'RE ARGUING -- YOU'RE ARGUING
17 WHETHER OR NOT THAT TESTIMONY OUGHT TO BE IN. AND THE POINT
18 IS THAT -- YOUR MAIN POINT IS BASICALLY YOU DIDN'T GET
19 NOTICE OF IT.
20 MR. STIRBA: THAT IS THE MORE IMPORTANT POINT IN
21 TERMS OF THE SUBSTANCE OF HER TESTIMONY.
22 THE COURT: ALL RIGHT. MR. WILSON, DO YOU WANT TO
23 RESPOND TO THAT?
24 MR. WILSON: TWO RESPONSES, YOUR HONOR. FIRST OF
25 ALL, THE TESTIMONY OF MISS KAUFMAN AS IT RELATES TO THE
2161
1 PARTICULAR EXHIBITS IS IN RELATIONSHIP TO HER REVIEW OF THE
2 MEDICAL RECORDS, AND THE FOUNDATION FOR THAT CAN BE PLACED
3 BEFORE THE COURT AS TO THE FACT THAT THIS IS A SUMMARY OF
4 THOSE MEDICAL RECORDS, IN -- IN RESPECT TO GOING OVER ALL OF
5 THE MEDICAL RECORDS, ALL OF THE NOTES.
6 IT IS NOT IN THE FORM OF EXPERT TESTIMONY. IT IS IN
7 THE FORM OF SUMMARIZING THE RECORDS FOR THE ABILITY TO
8 THE -- FOR THE JURY TO UNDERSTAND AND FOR THE OTHER EXPERTS
9 TO BE ABLE TO RELATE -- TO TESTIFY FROM THAT STANDPOINT.
10 AS TO THE PREJUDICE, I -- I FAIL TO SEE WHAT PREJUDICE,
11 AS COUNSEL HAS ARTICULATED IN RESPECT TO HER BEING PRESENT
12 DURING THESE PROCEEDINGS IN HER CAPACITY AS AN EXPERT
13 WITNESS, REGARDLESS OF THE FACT THAT WHETHER NOTICE WAS
14 PROVIDED AT THE TIME OF THE INVOCATION OF THE EXCLUSIONARY
15 RULE.
16 I WOULD SUBMIT TO THE COURT THAT THE RULE THAT THE
17 COURT HAS REFERENCED WOULD REQUIRE, I THINK, SOME -- SOME
18 DEMONSTRATION THAT THIS EXPERT -- IF SHE WERE GOING TO BE
19 PUT ON THE STAND AND OPINE TO -- TO SOMETHING THAT FACTUALLY
20 WAS NOT IN THE -- IN EVIDENCE AT THE PRESENT TIME, THEN
21 MAYBE -- MAYBE I COULD SEE THAT. WHERE IF SHE WAS GOING TO,
22 AS -- AS COUNSEL HAS COMPLAINED IN OTHER CASES THAT HE
23 WASN'T AWARE OF THIS PARTICULAR CONVERSATION, YOU KNOW, AS
24 TO -- RELATED BY THE WITNESS, I COULD SEE A LACK OF NOTICE
25 FROM THAT STANDPOINT.
2162
1 SHE'S NOT GOING TO OPINE TO ANYTHING DIFFERENT THAN
2 WHAT SHE PLACED IN -- IN THE ORIGINAL LETTER. THE ONLY
3 THING SHE'S GOING TO TESTIFY TO IS THAT SHE PREPARED THESE
4 PARTICULAR EXHIBITS. AND WE CAN HAVE A HEARING, IF THE
5 COURT DESIRES, AND PUT HER ON THE STAND OUT OF THE PRESENCE
6 OF THE JURY AND LET THE COURT SEE IF WE CAN MEET THAT
7 FOUNDATIONAL REQUIREMENT, THAT IT IS INDEED A SUMMARY.
8 THE COURT: WELL, HE'S STATING -- OKAY, WELL, FIRST
9 OF ALL, AS TO YOUR FIRST POINT ABOUT RULE 615, THERE IS A
10 CASE THAT I NOTICE UNDER THE ANNOTATION THAT SAYS, WHEN AN
11 EXCLUSION ORDER HAS BEEN VIOLATED, THE BURDEN IS ON THE
12 ACCUSED TO DEMONSTRATE THAT HE HAS BEEN PREJUDICED TO SUCH
13 AN EXTENT THAT A MISTRIAL SHOULD BE GRANTED.
14 AND THAT CITES THE CASE OF STATE VERSUS MCGRAPH,
15 749 P.2D 631 UTAH SUPREME COURT OF 1988. SO AS TO THAT
16 ISSUE, THAT'S THE BURDEN. IT SAYS THAT THE PERSON SAYING
17 THAT THERE HAS BEEN A VIOLATION HAS TO SHOW IN A CRIMINAL
18 CASE THAT HE'S BEEN PREJUDICED TO THE EXTENT THAT A MISTRIAL
19 SHOULD BE GRANTED. SO THAT'S -- THAT'S THE STANDARD.
20 AS TO THIS OTHER ISSUE, HE STATES THAT UNDER 77-17-13
21 THAT HE SHOULD HAVE RECEIVED NOTICE OF THE EXPERT'S
22 IDENTITY, BUT ALSO, "A WRITTEN REPORT RELATING TO THE
23 PROPOSED TESTIMONY." AND WHAT I UNDERSTAND HIM TO BE SAYING
24 IS THAT THIS ISSUE AS TO THIS -- WHAT SHE'S TESTIFIED ABOUT
25 THIS WAS NOT IN THAT REPORT.
2163
1 MR. WILSON: WELL, AND I THINK -- I THINK THAT'S
2 TRUE, YOUR HONOR. WHAT IS IN -- WHAT IS IN THE RECORD IS
3 THE EVIDENCE IN SUPPORT OF THE GRAPHS THEMSELVES. IT'S
4 NOTHING MORE THAN A SUMMARY UNDER RULE -- I THINK IT'S 1006.
5 AND SO IT'S NOT IN THE FORM OF EXPERT OPINION. ALL WE WERE
6 INTENDING TO ELICIT FROM HER WAS HOW DID YOU GO ABOUT
7 DEVELOPING THIS SUMMARY? AND HER TESTIMONY IS, I TOOK THE
8 MEDICAL RECORDS WHICH ARE ALREADY IN EVIDENCE -- AND -- AND
9 IT GOES TO THE WEIGHT, YOUR HONOR. IT GOES TO THE WEIGHT.
10 IT DOESN'T GO TO ADMISSIBILITY. SHE'S NOT TESTIFYING AS AN
11 EXPERT IN -- IN RESPECT TO THESE PREPARATION OF THESE
12 CHARTS. OUR OTHER EXPERTS WILL TESTIFY IN THAT CAPACITY AS
13 FAR AS THE DRUGS THAT ARE ADMINISTERED.
14 THERE'S NO QUESTION THAT IN THE RECORD EACH ONE OF
15 THOSE DRUGS IS REFERENCED AND THERE'S NO QUESTION THAT THE
16 EXPERT WILL OPINE AS TO THE -- AS TO THE DOSAGES THAT ARE
17 RECOMMENDED BOTH IN THE P.D.R. AND BOTH IN THE GERIATRIC
18 HANDBOOK.
19 THE COURT: WELL, I THINK HE'S TALKING -- I THINK
20 HE'S TALKING ABOUT THE BOTTOM HALF OF YOUR REPORT. I THINK
21 IT'S ABOUT WHETHER -- HOW ARE YOU CHARACTERIZING --
22 MR. WILSON: I THINK THAT -- THAT -- THAT
23 FOUNDATION CAN BE AGAIN SET FROM -- OR IS CONTAINED IN THE
24 MEDICAL RECORD. AND ALL SHE'S DOING IS REFERENCING IN THE
25 MEDICAL RECORD LEVELS OF ACTIVITY IN THE PREPARATION OF THAT
2164
1 CHART. AND THOSE -- THOSE CAN BE REFERENCED. THEY CAN BE
2 REFERENCED BY HER. IF YOU WANT TO GO THROUGH PAGE BY PAGE
3 OF THAT MEDICAL RECORD AND HAVE HER -- HAVE HER IDENTIFY
4 THOSE AREAS THAT SHE -- SHE INDICATED FIT THAT PARTICULAR
5 GRAPH, WE CAN DO THAT, YOUR HONOR.
6 THE COURT: OKAY. ALL RIGHT. ANYTHING FURTHER?
7 MR. STIRBA: YES, YOUR HONOR. THIS -- THIS IS -- I
8 THINK WE ATTACHED IT TO THE MEMO. IT'S SORT OF -- AND I
9 DON'T KNOW WHAT IT IS. I ASSUME IT'S HER -- HER--
10 THE COURT: WELL, IT'S NOT ATTACHED TO THE NURSE
11 KAUFMAN. IS IT ATTACHED TO --
12 MR. STIRBA: RIGHT. IT'S THE NURSE KAUFMAN MEMO.
13 AND IT'S THIS --
14 THE COURT: OKAY. IT'S ACTUALLY ATTACHED TO THE --
15 MR. STIRBA: TO THE CHRONOLOGY.
16 THE COURT: -- MEDICAL CHRONOLOGY.
17 MR. STIRBA: YES. YES, YOUR HONOR.
18 THE COURT: OKAY.
19 MR. STIRBA: AND -- AND SO, YOU KNOW, THAT'S NOT --
20 THAT'S INTERPRETATION. I DON'T SEE ANY PLACE AT ALL BY ANY
21 WITNESS, BY ANY STATEMENT, BY ANY MEDICAL RECORD WHERE
22 NORMAL IS SOMEHOW -- SOMEHOW DEFINED AS AWAKE IN DAYTIME,
23 ASLEEP AT NIGHT. THAT'S IN THERE. THAT'S HER
24 INTERPRETATION. THAT'S NOT JUST TAKING A FIGURE AND, YOU
25 KNOW, ADDING IT UP.
2165
1 AGITATED. SHE HAS A SCALE HERE. I'VE NEVER HEARD
2 ANYBODY TESTIFY -- YOU KNOW, LETHARGIC IS AT 1, AND THEN WE
3 GO UP 1.3., 1.6, TO NORMAL IS 2, 2.3. THAT'S ALL
4 INTERPRETATION. THAT'S ALL SOMEBODY'S CHARACTERIZATION OF
5 WHAT THEY ARE SEEING IN THE MEDICAL RECORDS AND IT'S ALL
6 ABOUT, PRESUMABLY, EXPERT OPINION OR OPINION PER SE.
7 AND THEN AS I'VE -- AS I'VE INDICATED, IT IS GROSSLY
8 MISLEADING -- GROSSLY MISLEADING TO SUGGEST -- AND I KNOW
9 THE COURT'S AWARE OF WHAT'S IN THOSE RECORDS. TO TAKE SOME,
10 YOU KNOW, ISOLATED EVENT IN THE COURSE OF ONE DAY, AND
11 YOU'RE GOING TO SAY IT'S A 1 OR A 1.3 OR 1.6. THOSE --
12 THOSE NOTES ALL HAVE TO BE READ IN CONTEXT. THEY ALL HAVE
13 TO BE READ AS -- AS A TOTALITY OF WHAT IS STATED THERE.
14 AND SO THIS NURSE ISN'T DOING A SUMMARY. A SUMMARY IS
15 WE HAVE 10 DIFFERENT INDICATIONS OF A MEDICATION BEING
16 GIVEN. SO A SUMMARY IS SOMEBODY SAYING MEDICATION GIVEN 10
17 TIMES. IT'S STRAIGHT FACTUAL. THERE'S NO INTERPRETATION.
18 THERE'S NO SPIN. THERE'S NO NOTHING. IT'S JUST YOU TAKE
19 THE FACTS AND YOU APPLY THEM AND EVERYBODY SAYS THAT'S A
20 SUMMARY.
21 THE COURT: OKAY. ARE YOU SAYING THAT'S WHAT THE
22 TOP HALF OF THAT CHART IS?
23 MR. STIRBA: MAYBE. WE HAVE PROBLEMS WITH THAT,
24 TOO. BUT THAT'S MORE CLOSELY RELATED TO A SUMMARY WHERE
25 YOU'RE SAYING, HERE'S THE MEDICATION THAT WAS GIVEN AND
2166
1 HERE'S HOW WE CHART IT OUT. THAT'S MORE CLOSELY RELATED TO
2 A SUMMARY. I HAVE PROBLEMS WITH THAT, TOO, IN TERMS OF
3 ACCURACY, BUT I'LL GET TO THAT LATER. BUT WHEN YOU START
4 TAKING A WHOLE DAY AND YOU'RE GOING TO SAY, WELL, I THINK AT
5 THIS POINT IN TIME OR ON THIS DAY THIS PERSON WAS A NUMBER
6 THREE OR A NUMBER TWO OR NUMBER A ONE, THAT'S ALL
7 INTERPRETATION. AND THE WHOLE POINT IS, THIS SHOULD HAVE
8 BEEN PROVIDED TO US WHEN WE GOT HER REPORT AND WE NEVER GOT
9 IT.
10 AND TO SUGGEST IT'S JUST A SUMMARY UNDER 1006 IS TO
11 ESSENTIALLY TREAT 1006 AS IF IT DOESN'T REALLY STAND FOR
12 SOMETHING. EVERYBODY KNOWS WHAT 1006 MEANS AND THAT IS IT'S
13 JUST A PURE FACTUAL RECITATION, PERIOD. AND WHEN YOU'RE
14 DEALING WITH THESE KINDS OF ISSUES AND THIS KIND OF GRAPHIC
15 AND THIS KIND OF INTERPRETATION AND THIS KIND OF WHATEVER,
16 THIS IS PURELY NOT SUMMARY OF ANYTHING. IT'S AN
17 INTERPRETATION. IT'S A CHARACTERIZATION AND IT'S AN
18 EDITORIALIZATION OF WHAT THOSE RECORDS SAY.
19 AND AS THE COURT HAS INDICATED WITH THE WITNESSES, THE
20 WITNESSES CAN'T CHARACTERIZE THOSE RECORDS. THEY ARE WHAT
21 THEY ARE. IF SOMEBODY WRITES A NOTE AND WE WANT TO ASK
22 THEM, WELL, WHAT DID YOU MEAN BY THIS? THAT'S FINE. BUT
23 THEY ARE WHAT THEY ARE.
24 AND TO SUGGEST -- FOR EXAMPLE, WE INDICATED ON MARY
25 CRANE WHICH IS ONE OF THE -- YOU KNOW, WE DIDN'T HAVE TIME
2167
1 TO GO THROUGH EVERY LITTLE ONE, BUT EVEN ON MARY CRANE WE
2 INDICATE IN OUR MEMO HOW -- THE WAY SHE HAS CHARACTERIZED
3 THAT IS -- IS COMPLETELY INCONSISTENT WITH WHAT IS
4 REPRESENTED THE WHOLE TOTALITY OF THE DAY. AND THAT'S THE
5 PROBLEM. EVERY ONE OF THESE PATIENTS EVERY DAY HAD ALL
6 KINDS OF ACTIVITY: SOMETIMES LETHARGIC, SOMETIMES ALERT,
7 SOMETIMES NOT RESPONSIVE. AND THESE ARE ALL DONE BY
8 DIFFERENT NURSES. THEY -- THEY WERE IN AND OUT ALL DAY.
9 AND TO SUGGEST THAT SOMEHOW YOU -- YOU CAN'T -- YOU
10 KNOW, YOU CAN DO THAT AS A SUMMARY, IT'S RIDICULOUS. YOU
11 CAN'T. IT'S ALL INTERPRETATION. AND THE COURT OUGHT NOT TO
12 ALLOW AN INTERPRETATION OF THESE RECORDS, EXCEPT IF SOMEBODY
13 SAID TO US, WHEN THEY SHOULD HAVE ON MAY 5TH, LOOK, WE GOT A
14 NURSE HERE. SHE'S GOING TO APPLY HER NURSING EXPERTISE AND
15 SHE'S GOING TO HAVE THIS KIND OF GRAPH AND YOU DEAL WITH IT.
16 WELL, THAT'S FINE. BECAUSE RIGHT NOW WE DON'T -- WE DON'T
17 HAVE ANYBODY TO DEAL WITH. WE HAVE NEVER KNOWN THIS WAS
18 PART OF THIS CASE UNTIL YESTERDAY. AND THAT'S COMPLETELY
19 INAPPROPRIATE AND INCONSISTENT WITH THE COURT'S ORDER. AND
20 I'D SUGGEST THAT WE OUGHT TO STICK TO THE FACTS. WE OUGHT
21 TO STICK WITH WHAT THE RECORDS SAY AND WHAT THEY MEAN AND
22 NOT TRY TO CHARACTERIZE IT OR SPIN THEM.
23 THE COURT: ANYTHING FURTHER, MR. WILSON?
24 MR. WILSON: YES, YOUR HONOR. FIRST OF ALL, IN
25 RESPECT TO THE RULE IN REGARDS TO THE NOTICE OF EXPERT, AS I
2168
1 UNDERSTAND IT, UNLESS THE STATE HAS ACTED IN BAD FAITH,
2 THE -- THE CORRECT RESOLUTION IS TO ALLOW A CONTINUANCE FOR
3 TIME FOR THE -- FOR THE DEFENSE TO PREPARE TO -- TO MEET
4 THAT SO-CALLED EXPERT TESTIMONY.
5 AGAIN, WE WOULD REITERATE THAT THE GRAPH ITSELF IS
6 BASED UPON VERIFIABLE INFORMATION THAT'S IN THE MEDICAL
7 RECORD ALREADY. AND IT'S BASED UPON STANDARDS THAT SHE CAN
8 TESTIFY TO AS TO HOW SHE DEVISED THAT PARTICULAR GRAPH.
9 I THINK THAT GOES TO THE WEIGHT OF THE TESTIMONY. I
10 THINK THE DEFENSE HAS ADEQUATE OPPORTUNITY TO -- TO EXAMINE
11 THIS PARTICULAR WITNESS AS TO HOW SHE WENT ABOUT DEVELOPING
12 THAT PARTICULAR GRAPH FROM THE MEDICAL RECORDS ITSELF AND TO
13 EXPLORE JUST WHAT DEFECTS, IF ANY, MIGHT BE IN THAT
14 PARTICULAR GRAPH.
15 I THINK FROM THE PURPOSES OF THEIR OBJECTION AS IT GOES
16 TO TODAY, THIS IS IMPORTANT FROM THE STATE'S CASE STANDPOINT
17 BECAUSE WE HAVE AN EXPERT PREPARED TO TESTIFY TODAY AND HE'S
18 PREPARED TO TESTIFY AS TO -- AS TO THOSE SUMMARIES.
19 HE'S ALSO PREPARED OTHER DOCUMENTS. I HAVEN'T READ
20 THROUGH THEIR -- THEIR MOTION. WE HAVEN'T HAD AN
21 OPPORTUNITY TO REALLY EXPAND ON IT OTHER THAN JUST HERE
22 FOR -- FOR A FEW SHORT MOMENTS, YOUR HONOR, FROM THAT
23 STANDPOINT.
24 SO I DON'T KNOW WHETHER THE COURT WOULD BE WILLING TO
25 LET US TAKE THE OPPORTUNITY RIGHT NOW TO -- TO MAYBE TAKE A
2169
1 BREAK FOR A FEW MINUTES AND ALLOW US AN OPPORTUNITY TO -- TO
2 REVIEW THEIR ARGUMENT AND THEN COME BACK AND MORE FULLY
3 ARGUE THIS, OR WHETHER THE COURT WANTS TO PROCEED WITHOUT
4 THE BENEFIT OF THESE EXHIBITS. I JUST THINK IT'S VERY
5 IMPORTANT TO OUR CASE, OUR ABILITY TO PRESENT OUR CASE
6 APPROPRIATELY. WE DON'T FEEL THAT THESE -- THESE CHARTS IN
7 ANY WAY MISREPRESENT THE -- THE FACTS THAT WE'VE DERIVED OUT
8 OF THE MEDICAL RECORD ITSELF.
9 MR. STIRBA: CAN I JUST SAY ONE THING ABOUT THAT?
10 'CAUSE THIS IS THE EASIEST THING TO DEAL WITH IN TERMS OF
11 THAT -- THAT LAST COMMENT. ENNIS ALLDREDGE, THE CHART
12 SHOWS, GOT HALDOL AND ATIVAN. AND IT HAS THESE -- PURPORTED
13 TO BE PILLS, AND THEY'RE KIND OF GOING UP LIKE THIS. AND
14 THEN THEY HAVE OVER HERE MORPHINE AND THEY HAVE NEEDLES,
15 REPRESENTING INJECTIONS.
16 YOUR HONOR, THE HALDOL AND THE ATIVAN THAT
17 MR. ALLDREDGE GOT WAS I.M. IT WAS AN INJECTION. IT WASN'T
18 A PILL. AND EVERY SINGLE TIME THEY USE IT SHOWING THE PILL,
19 IT'S WRONG. IT MISLEADS THE JURY.
20 AND SEE, I'LL TELL YOU, TO HELP THEM, I DON'T CARE IF
21 THEY WANT TO PUT THESE THINGS UP AT SUMMATION AND THEY SAY
22 OKAY, LADIES AND GENTLEMEN, HERE ARE THE FACTS, 'CAUSE I'M
23 GOING TO DO IT. I DON'T CARE IF THEY HAVE ANY EXHIBIT THEY
24 WANT SUMMARIZING WHAT THEY THINK THE EVIDENCE SHOWS IN
25 SUMMATION. THAT IS TOTALLY APPROPRIATE.
2170
1 BUT TO ACT LIKE THIS ARGUMENTATIVE, ONE-SIDED,
2 MISLEADING, INACCURATE CHART IS OF EVIDENTIARY VALUE AT THIS
3 POINT, I THINK IS INCONSISTENT WITH ALL THE RULES OF
4 EVIDENCE. AND THAT'S REALLY WHAT IT IS. THAT'S MY BIGGEST
5 PROBLEM WITH IT. IT'S REALLY NOT A DEMONSTRATIVE AID TO
6 ASSIST. IT'S MORE OF AN ARGUMENTATIVE TOOL WHICH YOU WILL
7 SEE AND SHOULD SEE IN SUMMATION. BECAUSE THEY'RE --
8 BASICALLY WHAT YOU'RE SAYING IS, THIS IS WHAT WE THINK THE
9 FACTS WERE. AND THEY CAN SAY WHATEVER THEY THINK THE FACTS
10 WERE BECAUSE I'M GOING TO SAY WHAT I THINK THE FACTS SHOW
11 AND I'M GOING TO HAVE MY OWN DEMONSTRATIVE AID.
12 BUT AT THIS JUNCTURE IN A TRIAL SETTING TO ACT LIKE
13 THIS IS SOMEHOW STRAIGHT FACTS, I JUST POINT OUT ONE VERY
14 FUNDAMENTAL FACT WHICH IS TOTALLY FLAWED ON THE EXHIBIT,
15 WHICH IS WHAT I -- AT LEAST WHAT I WAS PRESENTED LAST
16 NIGHT -- AND MISLEADS THE JURY.
17 THE COURT: OKAY. WHAT I WOULD SUGGEST IS IF YOU
18 WANT TO LOOK THROUGH THESE THINGS, I NEED TO LET THE
19 BAILIFFS KNOW TO TELL THE JURY THAT WE MAY BE A FEW MINUTES.
20 THEY'VE ALREADY REALIZED WE'VE BEEN 35 MINUTES.
21 SO I'M GOING TO TAKE A BREAK AND LOOK THROUGH THESE
22 THINGS AND THEN GIVE YOU A CHANCE TO READ THROUGH THESE
23 OTHERS. I'M NOT SAYING WE'RE GOING TO ARGUE ALL THOSE RIGHT
24 NOW. I'D LIKE TO RESOLVE THIS ISSUE ON THIS WITNESSES
25 FIRST.
2171
1 MR. STIRBA: THANK YOU, JUDGE.
2 (WHEREUPON, COURT'S IN RECESS.)
3 THE COURT: OKAY. WE'RE BACK ON THE RECORD AND THE
4 JURY IS NOT PRESENT.
5 OKAY. WE HAVE HAD AN ARGUMENT REGARDING THE TESTIMONY
6 OF NURSE KAUFMAN AS TO THE ISSUE OF WHETHER OR NOT THERE'S
7 BEEN A VIOLATION OF THE EXCLUSIONARY RULE.
8 AS I MENTIONED BEFORE, THE ANNOTATION THAT I READ
9 STATES THAT THERE HAS TO BE A PREJUDICE TO THE POINT -- TO
10 THE EXTENT THAT A MISTRIAL SHOULD BE GRANTED. I DON'T FIND
11 THAT AS TO THAT ISSUE.
12 THE OTHER QUESTION IS WHETHER OR NOT THIS REPORT, YOU
13 KNOW, CAN COME IN, OR INTERPRETATION OF PATIENT BEHAVIORS.
14 OKAY. ON THIS SITUATION, IT SEEMS TO ME THAT FROM OBSERVING
15 THE CHART YESTERDAY AND ALSO OBSERVING BOTH SIDES
16 DISCUSSIONS, I UNDERSTAND THAT WE HAVE PILLS -- I MEAN, ON
17 ONE PART OF THE CHART WE HAVE PILLS AND ON THE OTHER PART WE
18 HAVE LIKE A SYRINGE. THAT'S ONE ISSUE THAT'S BEEN
19 DISCUSSED.
20 THE OTHER ISSUE HAS BEEN WHETHER OR NOT THERE CAN BE
21 SOME SORT OF CHART UNDER THIS -- THIS AGITATED, NORMAL, AND
22 IT'S REALLY THE BOTTOM OF THE CHART OF EACH OF THESE
23 PATIENTS THAT SHOWS A GRAPH, BASED UPON THAT TYPE OF --
24 SHOWING AGITATED, 3; NORMAL, 2; LETHARGIC, 1, AND GOING FROM
25 2.6 TO 1.3 IN BETWEEN.
2172
1 NOW, I THINK IT'S WELL TAKEN THAT UNDER RULE 1006 OF
2 THE UTAH RULES OF EVIDENCE THAT THERE CAN BE -- IT SAYS,
3 "THE CONTENTS OF VOLUMINOUS WRITINGS, RECORDS OR
4 PHOTOGRAPHS -- RECORDINGS OR PHOTOGRAPHS WHICH CANNOT BE
5 CONVENIENTLY EXAMINED IN COURT MAY BE PRESENTED IN THE FORM
6 OF A CHART, SUMMARY, OR CALCULATION."
7 AND I BELIEVE THAT, YOU KNOW, THE IDEA OF THAT IS THAT
8 THAT IS EXACTLY WHAT IT IS. IT IS A SUMMARY AND IT'S NOT AN
9 ARGUMENT. AND I THINK RIGHT NOW WHAT WE HAVE, BASICALLY, IS
10 IF THIS IS ABLE TO COME INTO EVIDENCE, THIS EXHIBIT THAT
11 WE'RE DISCUSSING AS IT RELATES TO EACH ONE OF THE
12 INDIVIDUALS, THEN WHAT THAT'S GOING TO DO IS BASICALLY IT'S
13 NOT -- AND IT'S NOT A SUMMARY UNDER 1006 BECAUSE, FOR
14 EXAMPLE, JUST WITH THE MEDICATION, THERE ARE, YOU KNOW,
15 PILLS VERSUS SYRINGES, SYRINGES VERSUS PILLS, ET CETERA.
16 AND THAT -- YOU KNOW, I MEAN THERE'S NOTHING IMPROPER ABOUT
17 THAT, BUT IT'S NOT SUMMARIZING IT. IT'S SHOWING A -- IT'S
18 DISPLAYING MEDICATION IN DIFFERENT MANNERS.
19 SECONDLY, THIS ISSUE OF SOMEBODY TAKING THE MEDICAL --
20 MEDICAL RECORDS AND THEN STATING HOW THEY INTERPRET THEM AND
21 PUTTING -- ASSESSING A NUMBER TO THEM IS REALLY NOT A
22 SUMMARY OF WHAT HAPPENS. IT'S -- IT'S AN INTERPRETATION OF
23 WHAT HAPPENS.
24 YESTERDAY THERE WAS A -- A DISCUSSION REGARDING THE
25 MEDICAL EXAMINERS AND WHETHER THE AUTOPSY REPORTS SHOULD
2173
1 COME IN. ONE OF THE REASONS THE AUTOPSY REPORT DID NOT COME
2 IN, BESIDES BEING HEARSAY THAT THERE WASN'T AN EXCEPTION,
3 WAS THE ISSUE OF WHEN A WITNESS TESTIFIES AND THEN YOU HAVE
4 A WRITTEN SUMMARY OF THE WITNESSES' TESTIMONY THAT GOES TO A
5 JURY, THEN A JURY CAN PLACE MORE EMPHASIS ON THAT THAN ON
6 ANYTHING ELSE BECAUSE WHAT THEY'RE GIVEN IS SOMETHING IN
7 WRITING FROM ONE WITNESS THAT THEY DON'T HAVE FROM THE
8 OTHERS. THIS IS NOT A WRITTEN SUMMARY IN THE MANNER OF AN
9 AUTOPSY REPORT THAT WE HAD WITH OUR WITNESS YESTERDAY, BUT
10 IT REALLY IS A WRITTEN SUMMARY OF SOMEBODY'S INTERPRETATION.
11 AND TO ALLOW THAT TO GO INTO EVIDENCE WOULD EMPHASIZE THAT
12 UNDULY AND I'M NOT GOING TO ALLOW ANY EXPERT WITNESS TO GIVE
13 A REPORT THAT'S GOING TO COME INTO EVIDENCE THAT SAYS
14 THAT -- BASICALLY SUMMARIZES THEIR TESTIMONY.
15 SO AS TO THE SUMMARY -- THE WRITTEN SUMMARIES
16 THEMSELVES, THEY'RE NOT GOING TO BE ALLOWED INTO EVIDENCE
17 BECAUSE THEY CAN BE USED FOR ARGUMENT, THEY'RE TOTALLY
18 APPROPRIATE FOR ARGUMENT, BUT THEY'RE NOT GOING TO BE USED
19 AS EVIDENCE. IT'S NOT GOING TO COME IN AS EVIDENCE.
20 THE WITNESS CAN TESTIFY -- IF THERE'S SOMETHING SHE CAN
21 TESTIFY REGARDING WHAT SHE IS QUALIFIED TO TESTIFY ABOUT.
22 AND THE EARLIER RULINGS OF THE COURT THAT THAT EXHIBIT WILL
23 NOT COME IN FOR THE REASONS THAT I'VE STATED.
24 NOW, I'M NOT GOING TO DISCUSS ALL THESE OTHER ISSUES
25 RIGHT NOW UNLESS THERE'S SOMETHING THAT WE NEED TO DISCUSS
2174
1 THAT SOMEBODY CAN SEE IS COMING UP IMMEDIATELY.
2 MR. WILSON: WELL, I HAVEN'T HAD AN OPPORTUNITY TO
3 REVIEW IN FULL THE MATTER AS IT RELATES TO DR. FEHLAUER'S
4 TESTIMONY, YOUR HONOR, BUT WE DO HAVE OTHER EXHIBITS
5 PREPARED.
6 I GUESS MY QUESTION TO THE COURT WOULD BE THIS: FIRST
7 OF ALL -- AND THERE -- THERE WAS FURTHER EXPLANATION THAT
8 NEEDED TO BE MADE AS TO THE PREPARATION OF THOSE CHARTS.
9 FOR INSTANCE, THERE IS AN EXPLANATION AS TO WHY HALDOL WAS
10 IN THE PILL FORM RATHER THAN IN THE INJECTABLE FORM. BUT --
11 AND THAT COULD HAVE BEEN GIVEN BY MISS KAUFMAN IN HER
12 TESTIMONY, YOU KNOW, FROM THAT STANDPOINT.
13 THE COURT: BUT JUST ON THAT -- JUST ON THAT ISSUE.
14 IF YOU HAVE WHAT -- YOU SAY A SUMMARY AND THE SUMMARY IS
15 MEDICATIONS GIVEN TO A PATIENT, AND SO THEN YOU'VE GOT ONE
16 IN IT WITH A SYRINGE AND YOU'VE GOT ONE WITH A PILL, YOU
17 KNOW, YES, THAT'S PORTRAYING IT, BUT IT'S ALMOST LIKE -- YOU
18 KNOW, IT'S GIVING LIKE ONE'S A SYRINGE AND ONE'S A PILL.
19 NOW, IF YOU'RE REALLY SUMMARIZING IT YOU'D SAY THEY GOT
20 THIS MUCH OF THIS DRUG, HALDOL; THEY GOT THIS MUCH OF
21 MORPHINE OR THAT MUCH OF MORPHINE, AND IT WOULD BE AMOUNTS
22 AND IT WOULD BE A SUMMARY.
23 AND I GUESS THE PROBLEM THAT I SEE IS THAT EVEN ON THE
24 DRUGS THEMSELVES, I DON'T WORRY ABOUT THE HALDOL EXAMPLE IF
25 THAT WAS GIVEN BY ONE OR THE OTHER. IT'S JUST THAT IF'S
2175
1 IT'S GOING TO BE A SUMMARY, WE SAY HOW MUCH WAS GIVEN. AND
2 IF YOU WANT TO DO THAT IN A CHART FORM, I HAVE NO PROBLEM
3 WITH THAT AS A SUMMARY BECAUSE WE DO HAVE A LOT OF THE
4 MEDICAL RECORDS.
5 BUT IF YOU'RE GOING TO TAKE SOMETHING AND BASICALLY SAY
6 THIS IS -- THAT'S ASIDE FROM THE INTERPRETATION OF A PERSON
7 BEING LETHARGIC AND DO YOU GIVE THEM A 1.3 ON THAT DAY OR A
8 1.6. THAT'S A PERSON TAKING THE RECORDS -- THE RECORDS
9 DON'T DO THAT. THE RECORDS SIMPLY SAY WHAT THE WORDS ARE.
10 AND IF YOU HAD A CHART THAT SAID ON EACH DAY THESE ARE
11 THE WORDS, YOU KNOW, THAT'S A DIFFERENT SITUATION THAN
12 SOMEBODY SAYING SHE'S A 1.3 LETHARGIC INSTEAD OF A 1.6
13 LETHARGIC BECAUSE THAT'S HER TESTIMONY. IT'S HER TESTIMONY,
14 NOT -- AND SO IT'S NOT A SUMMARY. IT'S A SUMMARY OF HER
15 TESTIMONY AND THAT'S WHY IT SHOULDN'T GO -- JUST LIKE A
16 SUMMARY OF AN AUTOPSY REPORT, IT SHOULDN'T GO THERE BECAUSE
17 IT GIVES UNDUE INFLUENCE TO A JURY TO PUT MORE EMPHASIS ON A
18 WRITTEN FORM THAN THE OTHER.
19 NOW, WHAT'S WRONG -- YOU CAN PUT THAT UP THERE AND SAY,
20 LOOK, YOU KNOW, HERE'S -- YOU KNOW, THIS IS HOW THEY WERE
21 LETHARGIC. YOU KNOW, IN CLOSING ARGUMENT YOU CAN DO THAT,
22 BUT IS THAT A THING THAT GOES INTO THE JURY, YOU KNOW. I'M
23 SAYING --
24 MR. WILSON: WHAT ABOUT DURING -- AS A
25 DEMONSTRATIVE AID FOR THE PURPOSES OF OUR EXPERTS
2176
1 TESTIFYING?
2 THE COURT: OKAY. WHAT DO YOU SAY ABOUT THAT?
3 MR. STIRBA: SAME PROBLEM. IT'S NOT -- A
4 DEMONSTRATIVE AID CAN'T BE MISLEADING AND CONFUSING TO THE
5 JURY. IT'S THE SAME PROBLEM. AND -- AND NORMALLY A
6 DEMONSTRATIVE AID ISN'T USUALLY ENTERED INTO EVIDENCE
7 ANYWAY. IT CAN BE, BUT IT NORMALLY ISN'T. IT'S JUST
8 DISPLAYED TO THE JURY FOR PURPOSES OF ASSISTING THE
9 TESTIMONY AND ENLIGHTENING THE JURY.
10 THE COURT: WELL, THAT'S THE POINT, BUT I MEAN,
11 WHAT IS YOUR ARGUMENT? I MEAN, HE'S SAYING OKAY, USE IT AS
12 A DEMONSTRATIVE AID. DON'T INTRODUCE IT INTO EVIDENCE.
13 MR. STIRBA: IT'S NOT -- IT'S NOT A DEMONSTRATIVE
14 AID FOR ALL THE REASONS I'VE INDICATED. IT'S MISLEADING,
15 IT'S INACCURATE, IT -- IT HAS INTERPRETATION WHICH IS
16 IMPROPER IN THIS CASE, GIVEN THE SCHEDULING ORDER.
17 I MEAN, I COULD GO ON AND ON AND ON. I MEAN, SEE -- I
18 AGREE WITH THE COURT. WHAT WE DID AT THE PRELIMINARY
19 HEARING ON THE MEDICATIONS IS WE ACTUALLY DID HAVE A
20 SUMMARY, JUST LIKE THE COURT INDICATED, FOR WHAT MEDICATIONS
21 WERE GIVEN ON WHAT DAY AND THE DOSING LEVELS AND THE WHOLE
22 NINE YARDS. AND IT WAS JUST FACTUAL AND WE -- WE USED IT.
23 AND IN FACT, THEY HAVE A COPY OF IT.
24 I MEAN, THAT WAS A SUMMARY AND THAT'S -- THAT'S HOW WE
25 USED IT. BUT IT DIDN'T HAVE ANYTHING ELSE ON IT OTHER THAN
2177
1 JUST WHAT THE COURT IS INDICATING. AND I HAVE NO PROBLEM
2 WITH THAT KIND OF EVIDENCE OR THAT KIND OF DOCUMENT. AND IN
3 FACT, I THINK I SAW SOME OTHER DOCUMENTS WHICH I THINK ARE
4 GOING TO BE USED WITH THE EXPERTS WHICH YOU HAVEN'T SEEN US
5 COMPLAIN ABOUT BECAUSE, QUITE FRANKLY, THEY MAY BE HELPFUL
6 FOR PURPOSES OF THE TESTIMONY.
7 THE COURT: OKAY. MR. WILSON?
8 MR. WILSON: YOUR HONOR, IF I MIGHT.
9 THE COURT: YES.
10 MR. WILSON: IN TERMS OF THE ARGUMENT AS TO THE
11 DEMONSTRATIVE AID, COUNSEL REFERENCES A NUMBER OF ARGUMENTS
12 ABOUT THE MISLEADING -- AND I'M SURE COUNSEL CAN EXPLORE
13 THAT WITH THE EXPERT WHO'S TESTIFYING, AS IT RELATES TO
14 THOSE PARTICULAR GRAPHS, AND CAN EXPLORE FROM THE
15 STANDPOINT, DOES THIS -- THIS CHART ACCURATELY REPRESENT
16 WHAT YOU PERCEIVE TO BE IN THE MEDICAL RECORD FROM THAT
17 STANDPOINT.
18 SO I THINK IN THAT CONTEXT WE OUGHT TO BE ABLE TO -- TO
19 USE THEM BECAUSE THE EXPERTS HAVE REVIEWED THEM. THEY'VE --
20 THEY'VE ALREADY FELT AND EXPRESSED TO US THAT THEY'RE
21 CONSISTENT WITH THEIR REVIEW OF THOSE RECORDS. AND I THINK
22 UNDER THE CIRCUMSTANCES IT WOULD BE HELPFUL FOR THE JURY AND
23 I -- I'M SURE MR. STIRBA CAN ADEQUATELY POINT OUT ANY
24 DEFECTS THAT MIGHT BE IN THE DEMONSTRATIVE AID.
25 MR. STIRBA: JUDGE, WE'RE BACK -- WE'RE BACK TO THE
2178
1 SAME PROBLEM. JUST TAKE THE GRAPH. THE GRAPH IS AN
2 INTERPRETATION OF -- OF THESE RECORDS. I MEAN, IT'S THERE.
3 IT'S PART OF THE DOCUMENT. IT'S PART OF THE CHART. WHETHER
4 YOU CALL IT A DEMONSTRATIVE AID OR WHETHER YOU CALL IT
5 EVIDENCE, IT'S STILL INAPPROPRIATE TO PRESENT TO THE JURY IN
6 THE FASHION IT'S BEING PRESENTED.
7 IT'S THE SAME ISSUE WITH THE SYRINGES AND THE PILLS.
8 IT'S THE SAME PROBLEM. THAT IS NOT A FACTUAL RECITATION IN
9 A NEUTRAL WAY OF WHAT HAPPENED. IT'S ESSENTIALLY ARGUMENT.
10 IT'S A SKEWED CHART. IT'S A CHART THAT REPRESENTS WHAT THE
11 PROSECUTION WANTS THE JURY TO SORT OF GLEAN FROM THIS CASE.
12 AND TO THAT EXTENT, IT SHOULD BE USED IN ARGUMENT. THAT'S
13 WHERE ITS PLACE IS. AND THEY CAN HAVE ANY KIND OF THINGS
14 THEY WANT IN THERE. THEY CAN HAVE ANY SYRINGES THEY WANT,
15 ANY NUMBER OF PILLS. THEY CAN HAVE ANYTHING THEY WANT
16 BECAUSE THAT'S THEIR ARGUMENT.
17 BECAUSE NO MATTER WHETHER YOU USE IT FOR DEMONSTRATIVE
18 AID OR EVIDENCE, WHAT DIFFERENCE DOES IT MAKE. IT'S STILL
19 BEING DISPLAYED TO THE JURY. IT'S STILL BEING USED BY THE
20 EXPERTS, AND IT STILL HAS ALL THE SAME FLAWS. IN OTHER
21 WORDS, THE CHARACTER DOESN'T CHANGE REALLY BECAUSE YOU SAY
22 DEMONSTRATIVE AID VERSUS EVIDENCE. IT'S STILL THE SAME
23 PROBLEM.
24 THE COURT: OKAY. LAST WORD, MR. WILSON?
25 MR. WILSON: IF IT'S -- IT IT'S A DEMONSTRATIVE AID
2179
1 THAT AIDS THE EXPERTS IN BEING ABLE TO EXPLAIN THE TESTIMONY
2 TO THE JURY AS TO WHAT THESE VARIOUS ITEMS REPRESENT, I
3 THINK IT'S PERFECTLY APPROPRIATE IN THAT CONTEXT, YOUR
4 HONOR.
5 WE'RE NOT -- WE AGREE WE'RE NOT GOING TO OFFER IT INTO
6 EVIDENCE IN ITS PRESENT FORM. WE CAN -- WE CAN BLANK OUT
7 THE SYRINGES, YOUR HONOR, IF -- IF THAT WOULD BE MORE
8 ACCEPTABLE TO THE COURT. I REALIZE WE CAN'T BLANK OUT THE
9 PILLS RIGHT NOW, BUT I THINK THE EXPERTS CAN TESTIFY AS TO
10 WHAT THOSE DOSAGES REPRESENT. AND THEY'RE BASED ON THE
11 OTHER CHARTS THAT ARE GOING TO BE PUT INTO EVIDENCE.
12 MS. BARLOW: YOUR HONOR, I KNOW THAT WE JUST
13 BRIEFLY SHOWED IT YESTERDAY AND I JUST THOUGHT PERHAPS
14 RATHER THAN ARGUING IN A VACUUM I WOULD -- THIS IS THE
15 MOST -- THE SMALLEST ONE, AS IT WERE. AND SO THE COURT
16 WOULD SEE WHAT EXACTLY WE HAVE ON IT.
17 THE COURT: NO. I REMEMBER WELL THE BIGGER ONE
18 FROM YESTERDAY.
19 OKAY. ALL RIGHT. I'M GOING TO TAKE ONE FIVE-MINUTE
20 BREAK AND THEN WE'RE GOING TO MAKE A RULING ON THAT AND THEN
21 WE'LL START WITH THE WITNESS AND BRING THE JURY IN BACK.
22 (WHEREUPON, COURT'S IN RECESS.)
23 THE COURT: OKAY. WE'RE BACK ON RECORD WITHOUT THE
24 JURY BEING PRESENT.
25 OKAY. AS TO THESE CHARTS, USING THEM AS DEMONSTRATIVE
2180
1 AIDS, THIS IS WHAT I'M GOING TO ALLOW. FIRST OF ALL, I'M
2 GOING TO ALLOW AMOUNTS OF DRUGS GIVEN ON DAYS AS A SUMMARY,
3 YOU KNOW, FOR AN EXPERT WITNESS. THEY CAN DO IT. I'M NOT
4 GOING TO ALLOW -- IF YOU WANT TO COVER UP THE PART OF
5 SYRINGES AND JUST HAVE AMOUNTS OF DRUGS OR WHATEVER, THAT
6 CAN BE DONE.
7 THE BOTTOM PART, YOU KNOW, THAT TALKS ABOUT THIS, YOU
8 KNOW, INTERPRETATION, AS I VIEW IT, OF LETHARGY, IS GOING TO
9 BE COVERED. IF SOMEBODY WANTS TO TESTIFY REGARDING LETHARGY
10 ON A PARTICULAR DAY WHEN THIS MANY DRUGS WERE GIVEN AND
11 REFER TO THE RECORD, THEY CAN DO THAT AS A DEMONSTRATIVE
12 AID.
13 THE WHOLE CHART CAN BE USED IN CLOSING ARGUMENT. YOU
14 CAN SAY, HERE'S, YOU KNOW, WHAT YOU HEARD AND HERE'S WHAT
15 THE MEDICAL RECORDS SHOW, HOWEVER YOU WANT TO USE THAT. BUT
16 AS A DEMONSTRATIVE AID FOR THE WITNESSES AS THEY TESTIFY,
17 THAT'S WHAT I'M GOING TO -- TO ORDER.
18 SO CAN WE BRING THE -- THE JURY IN NOW THAT IT'S ALMOST
19 8:30?
20 MS. BARLOW: YOUR HONOR, I HATE TO SAY THIS, BUT --
21 WELL, AND MAYBE WHAT WE CAN HAVE IS SOMEBODY GO OUT AND, YOU
22 KNOW, PUT A PIECE OF PAPER OR SOMETHING OVER THESE THINGS.
23 BECAUSE WE WILL HAVE --
24 THE COURT: YOU CAN DO ANOTHER THING. YOU CAN --
25 YOU KNOW, USE A CHART AND DRAW THAT, YOU KNOW, AND SAY THE
2181
1 SAME THING. YOU KNOW, IF YOU WANT TO HAVE HER TESTIFY -- I
2 MEAN, I THINK AN EXPERT WITNESS CAN SAY ON THIS DAY THEY GOT
3 THIS MUCH DRUGS. ON THIS DAY -- THEY CAN DO A CHART THAT
4 WOULD, YOU KNOW, DEMONSTRATE WHAT THEY'RE TALKING ABOUT. I
5 DON'T HAVE ANY PROBLEMS WITH THAT.
6 MS. BARLOW: YOUR HONOR, PROBABLY WHAT WE CAN --
7 MISS GAYHEART IS HERE. MAYBE I CAN ASK THAT SHE TAKE THOSE
8 FIVE CHARTS OUT, GET A PIECE OF PAPER OR SOMETHING, COVER
9 OVER WHAT THE COURT DOESN'T WANT THE JURY TO SEE AT THIS
10 POINT.
11 IN THE MEANTIME, I CAN BE LAYING THE FOUNDATION FOR
12 DR. FEHLAUER.
13 THE COURT: OKAY. THAT'S FINE.
14 MS. BARLOW: WELL, SINCE WE'RE NOT GOING TO BE
15 INTRODUCING THEM AT THIS POINT, I GUESS WE WON'T HAVE MISS
16 KAUFMAN TESTIFY TO THEM. OKAY. I'M THINKING OUT LOUD.
17 THANK YOU.
18 THE COURT: OKAY. SO THAT -- THAT'S NO PROBLEM.
19 BUT CAN WE BRING THE JURY IN OR --
20 MS. BARLOW: I THINK SO.
21 THE COURT: I JUST WANT ALL OF YOU TO KNOW AS
22 ATTORNEYS THAT, YOU KNOW, IN TALKING TO OTHER JUDGES IN BOTH
23 THE STATE AND FEDERAL SYSTEM, NOBODY'S HAD A CASE WITH SO
24 MANY ISSUES HAVING TO BE DECIDED BY ONE SINGLE JUDGE IN A
25 CASE. SO I APPRECIATE THIS OPPORTUNITY. IT'S A -- IT'S A
2182
1 RARE, RARE PRIVILEGE.
2 (WHEREUPON, THE JURY ENTERS THE COURTROOM.)
3 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
4 IS PRESENT SO THAT MEANS IT MUST BE 8:30. JUST FOR YOUR
5 RECORD, I SENT YOU HOME ABOUT 12:30 YESTERDAY AND THE
6 ATTORNEYS AND I HAD TO DISCUSS MATTERS ALL AFTERNOON
7 YESTERDAY. AND WE STARTED, YOU KNOW, THIS MORNING AND SOME
8 OTHER ISSUES CAME UP THAT WE HAD TO RESOLVE. AND SO I COULD
9 HAVE EITHER BROUGHT YOU IN FOR FIVE MINUTES, TAKEN YOU OUT
10 FOR AN HOUR AND A HALF, OR JUST, YOU KNOW, KEPT YOU OUT
11 THERE.
12 SO I'M VERY SORRY ABOUT THIS AND HOPEFULLY WE CAN GO ON
13 NOW. WE ARE -- WE ARE STILL ON SCHEDULE SO I DON'T WANT YOU
14 TO FEEL THAT THIS DELAY IS MAKING YOU BE HERE MORE DAYS THAN
15 YOU NEED TO. SO APPRECIATE YOUR PATIENCE.
16 WOULD YOU LIKE TO CALL YOUR NEXT WITNESS?
17 MS. BARLOW: STATE CALLS DR. FEHLAUER.
18 CHARLES FEHLAUER,
19 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
20 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
21 DIRECT EXAMINATION
22 BY MS. BARLOW:
23 Q. WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE
24 RECORD?
25 A. IT'S CHARLES STEVEN FEHLAUER. LAST NAME IS
2183
1 F-E-H-L-A-U-E-R.
2 Q. AND IS STEVEN WITH A "V"?
3 A. IT IS.
4 Q. AND WHAT IS YOUR OCCUPATION?
5 A. I'M A PHYSICIAN.
6 Q. HOW LONG HAVE YOU BEEN A PHYSICIAN?
7 A. I WAS LICENSED IN 1986. THAT WOULD BE 14 YEARS.
8 Q. WHAT EDUCATION DID YOU RECEIVE FOR YOUR OCCUPATION?
9 A. I WENT TO THE UNIVERSITY OF UTAH FOR MY MEDICAL SCHOOL
10 TRAINING. I COMPLETED A THREE-YEAR RESIDENCY IN INTERNAL
11 MEDICINE AT THE UNIVERSITY OF UTAH AND A TWO-YEAR FELLOWSHIP
12 IN GERIATRIC MEDICINE AT THE UNIVERSITY OF UTAH.
13 Q. WHAT IS GERIATRIC MEDICINE?
14 A. GERIATRIC MEDICINE IS THE TREATMENT OF ADULTS WHO ARE
15 ELDERLY, AND THERE'S NO DEFINITE DEFINITION OF A PERSON
16 WHO'S ELDERLY, BUT GENERALLY SPEAKING OVER THE AGE OF 70.
17 Q. SO THOSE OF US WHO ARE 50 ARE NOT SENIOR CITIZENS YET?
18 A. NO, NOT YET.
19 Q. HAVE YOU RECEIVED ANY OTHER TRAINING OTHER THAN THE
20 EDUCATIONAL BACKGROUND THAT YOU'VE JUST TESTIFIED TO IN
21 YOUR -- IN YOUR FIELD?
22 A. WELL, I HAVE HAD NUMEROUS CONTINUING MEDICAL EDUCATION
23 EVENTS ON AN ANNUAL OR MORE THAN ANNUAL BASIS. I HAVE HAD
24 EXTENSIVE EXPERIENCE IN THE RESEARCH INTO PEOPLE WITH
25 GERIATRIC DISEASES, DEMENTIA AND DELIRIUM, WHILE I WAS A
2184
1 RESEARCH INVESTIGATOR AT THE SALT LAKE V.A. HOSPITAL'S
2 GERIATRIC RESEARCH, EDUCATION AND CLINICAL CENTER.
3 Q. DO YOU HAVE ANY PARTICULAR CERTIFICATIONS IN YOUR
4 MEDICAL FIELD?
5 A. YEAH. I'M CERTIFIED BY THE AMERICAN BOARD OF INTERNAL
6 MEDICINE BOTH IN INTERNAL MEDICINE AND IN GERIATRICS.
7 Q. WHAT'S INTERNAL MEDICINE?
8 A. INTERNAL MEDICINE IS THE MANAGEMENT OF DISEASES OF
9 ADULTS.
10 Q. DO YOU HAVE ANY OTHER CREDENTIALS OTHER THAN THESE
11 CERTIFICATIONS?
12 A. I HOLD NUMEROUS POSITIONS AS MEDICAL DIRECTOR FOR
13 NURSING FACILITIES, AN INPATIENT PSYCHIATRIC HOSPITAL, A
14 SENIOR MEDICAL CENTER. I HAVE BEEN AN ADVISORY MEMBER OF
15 THE UTAH ALZHEIMER'S ASSOCIATION FOR MORE THAN 10 YEARS.
16 I'M A MEMBER OF PROFESSIONAL SOCIETIES RELATIVE TO MY
17 MEDICAL DIRECTORSHIPS.
18 Q. HAVE YOU EVER PUBLISHED IN THE FIELD OF GERIATRICS?
19 A. YEAH, I HAVE NUMEROUS ABSTRACTS, JOURNAL ARTICLES AND
20 BOOK CHAPTERS RELATIVE TO THE FIELD OF GERIATRICS, QUALITY
21 OF CARE AND DISEASES OF THE ELDERLY.
22 Q. ARE YOU FAMILIAR WITH THE TERM PALLIATIVE CARE?
23 A. I AM.
24 Q. AND WHAT IS THAT?
25 A. PALLIATIVE CARE IS THE CARE OF SOMEONE WHO HAS A DISEASE
2185
1 TO WHICH THERE IS NO CURE AND/OR THE PRESENCE OF AN ILLNESS
2 WHICH IS FELT TO BE TERMINAL.
3 AND THE PURPOSE OF PALLIATIVE CARE IS TO PROVIDE THAT
4 PATIENT WITH THE HIGHEST LEVEL OF FUNCTION, HIGHEST LEVEL OF
5 RELIEF OF SUFFERING OR PAIN SO THAT THEY CAN LIVE A QUALITY
6 AND -- AND AS LONG A LIFE AS THEY -- AS THEIR TIME ALLOWS.
7 Q. DO YOU KEEP UP WITH LITERATURE IN THE FIELD OF
8 GERIATRICS?
9 A. YES. I'M ACTIVELY INVOLVED IN REVIEWING LITERATURE AND
10 REVIEWING MATERIALS RELATIVE TO MY PRACTICE.
11 Q. DO YOU HAVE ANY TEACHING RESPONSIBILITIES?
12 A. I'M CURRENTLY A CLINICAL ASSISTANT PROFESSOR IN THE
13 COLLEGE OF NURSING. IT'S A RESEARCH APPOINTMENT AND I HAVE
14 NURSING STUDENTS OCCASIONALLY. IN MY POSITION AT THE SALT
15 LAKE REGIONAL MEDICAL CENTER WE HAVE HOUSE STAFF TRAINING
16 PROGRAM IN FAMILY PRACTICE AND ON A DAILY BASIS WE TEACH
17 CLINICALLY WITH THE FAMILY MEDICINE RESIDENTS THERE. I'M
18 RESPONSIBLE FOR EDUCATING STAFF IN MY NURSING FACILITIES.
19 I'M RESPONSIBLE FOR OVERSEEING THE CARE OF RESIDENTS IN MY
20 NURSING FACILITIES, AND EDUCATING PHYSICIANS RELATIVE TO THE
21 QUALITY OF CARE THAT'S BEING DELIVERED. I'M RESPONSIBLE FOR
22 EDUCATING NURSING ASSISTANTS AND -- AND ADMINISTRATORS IN
23 THE QUALITY OF CARE AND THE CARE DELIVERED IN THE NURSING
24 FACILITIES, THE HOSPITAL, AND MY MEDICAL CLINIC.
25 I'VE ALSO CONTINUED TO LECTURE BOTH TO THE COMMUNITY
2186
1 AND TO MEDICAL PHYSICIANS, IN PARTICULAR IN THE LAST FIVE
2 YEARS RELATIVE TO DEMENTIA AND DELIRIUM. AND AS RECENTLY AS
3 JANUARY OF THIS YEAR I WAS A SPEAKER AT THE UNIVERSITY OF
4 UTAH'S INTERNAL MEDICINE CONFERENCE THAT THEY PROVIDE AS AN
5 UPDATE TO INTERNAL MEDICINE.
6 Q. WHAT HAS BEEN YOUR EXPERIENCE IN THE CARE OF DEMENTED
7 PATIENTS?
8 A. WELL, I'VE HAD EXTENSIVE EXPERIENCE. I ENTERED MY
9 FELLOWSHIP IN 1989 AND JUST SHORTLY THEREAFTER WAS THE
10 FELLOW IN CLINIC AT THE UNIVERSITY OF UTAH'S COGNITIVE
11 DISORDERS CLINIC.
12 Q. WHAT'S A FELLOW?
13 A. A FELLOW IS SOMEONE WHO HAS COMPLETED A RESIDENCY OR THE
14 FIRST STATE OF TRAINING AFTER MEDICAL SCHOOL. AND THEN A
15 FELLOWSHIP IS ADDITIONAL TRAINING AFTER YOU'VE COMPLETED
16 YOUR SPECIALTY TRAINING. SO I'M A SPECIALIST IN INTERNAL
17 MEDICINE AND I'M A SUBSPECIALIST IN GERIATRICS. AND AS A
18 FELLOW YOU GET THAT TRAINING AS A SUBSPECIALIST.
19 SO IN 19 -- IN ANSWER TO YOUR QUESTION, IN 1989 I BEGAN
20 SERVING AS THE FELLOW OR THE TRAINEE IN THE COGNITIVE
21 DISORDERS OR MEMORY DISORDERS CLINIC AT THE UNIVERSITY OF
22 UTAH AND CONTINUED THAT UNTIL 1991. AND THEN FROM '91 TO
23 '95 I WAS AN ATTENDING PHYSICIAN; THAT IS, SOMEONE
24 PRINCIPALLY RESPONSIBLE FOR THE CARE OF THE PATIENTS IN THAT
25 CLINIC.
2187
1 FOR A PERIOD OF THREE YEARS I WAS A PRINCIPAL ATTENDING
2 PHYSICIAN AT GARDEN TERRACE, WHICH IS A NURSING FACILITY
3 SPECIALIZING IN THE CARE OF ALZHEIMER'S PATIENTS. AND FOR
4 THE LAST FIVE YEARS I'VE BEEN THE PRINCIPAL ATTENDING
5 PHYSICIAN AND MEDICAL DIRECTOR OF NURSING FACILITIES IN THE
6 SALT LAKE COUNTY WHERE I'VE CARED FOR OVER 3,000 INDIVIDUALS
7 IN THE LAST FIVE YEARS AND 1,000 OF WHOM HAVE SUFFERED FROM
8 DEMENTIA.
9 Q. IN THE COURSE OF THIS TRIAL WE'VE HEARD THE PHRASE
10 "CLINICAL" IN RELATIONSHIP TO THE PRACTICE OF MEDICINE. CAN
11 YOU EXPLAIN WHAT THAT -- THAT PHRASE -- OR THAT TERM MEANS?
12 A. WELL, YOU COULD SAY IT'S DERIVED FROM IN THE CLINIC. IT
13 MEANS THAT YOU ARE IN THE CLINIC OR YOU ARE PROVIDING SOME
14 SORT OF CARE THAT RELATES TO DIRECTLY CONTACTING A PATIENT.
15 WOULD BE OPPOSED TO BEING A -- A RESEARCH POSITION WHERE
16 THE -- THE INTERACTION YOU HAVE WITH A PATIENT IS -- IS
17 MEANT TO BE -- TO DISCOVER SOMETHING OR TO TEST SOMETHING.
18 A CLINICAL PERSON IS A PERSON WHO -- WHO PROVIDES DIRECT
19 CARE AND ASSESSMENT TO PATIENTS.
20 Q. AND HAVE YOU DONE BOTH OF THOSE, BOTH CLINICAL AND
21 RESEARCH?
22 A. YEAH. MY POSITION AT THE SALT LAKE V.A. WAS AS A
23 RESEARCH INVESTIGATOR. IT'S AN APPOINTMENT THAT WAS
24 INCLUDED IN THE CENTER GRANT THAT THE V.A. RECEIVED AFTER MY
25 APPLICATION WITH THE OTHER DOCTORS WAS ACCEPTED IN 1991.
2188
1 AND IN THAT POSITION MY PRINCIPLE STUDY WAS INVOLVED IN
2 USING NURSING RECORDS TO DETECT PATIENTS WHO ARE CONFUSED
3 AND CONFUSED IN A WAY THAT INDICATED THAT THEY HAD A
4 SYNDROME CALLED DELIRIUM. AND THAT RESEARCH CONTINUED FOR A
5 PERIOD OF FOUR YEARS UNTIL I LEFT THE V.A. IN 1995.
6 Q. HAVE YOU HAD THE OCCASION TO REVIEW ANY RECORDS
7 REGARDING THE FIVE VICTIMS IN THIS CASE?
8 A. YES, I HAVE.
9 Q. AND WHAT REVIEW HAVE YOU DONE?
10 A. WITH RESPECT TO ALL FIVE OF THE CASES, I HAVE BEEN
11 SUPPLIED WITH INFORMATION FROM HOSPITALIZATIONS AND NURSING
12 FACILITY RECORDS, DOCTOR'S OFFICE NOTES, PRIOR TO THEIR
13 ADMISSION TO DAVIS HOSPITAL, AND I'VE BEEN PROVIDED WITH
14 RECORDS FROM DAVIS HOSPITAL ITSELF.
15 Q. DO YOU RECALL LOOKING AT RECORDS INVOLVING ELLEN
16 ANDERSON?
17 A. YES, I DO.
18 Q. ARE THERE ANY FOLDERS UP THERE?
19 MS. BARLOW: IF I MAY APPROACH, YOUR HONOR?
20 THE COURT: YES.
21 Q. (BY MS. BARLOW) DR. FEHLAUER, THIS IS A BINDER THAT'S
22 STATE'S EXHIBIT NUMBER 6. WOULD YOU LOOK THROUGH THAT
23 QUICKLY AND SEE IF YOU RECOGNIZE WHAT THAT IS?
24 A. BASED ON EACH OF THE TABS, THIS APPEARS TO BE THE RECORD
25 THAT I WAS SUPPLIED RELATIVE TO ELLEN ANDERSON'S STAY AT
2189
1 DAVIS HOSPITAL.
2 Q. IN FORMULATING AN OPINION, A MEDICAL OPINION, WHAT DO
3 YOU NEED TO KNOW TO FORMULATE A MEDICAL OPINION SAY AS TO
4 INJURY OR -- OR CAUSE OF DEATH OR SOMETHING OF THAT SORT?
5 A. IF I'M FORMULATING MY OWN MEDICAL OPINION, IF I'M
6 ATTEMPTING TO, FROM EXAMINATION OF THE PATIENT OR THEIR
7 RECORDS, TO FORMULATE AN OPINION AS TO WHAT'S WRONG OR
8 WHAT'S HAPPENED OR WHAT WAS THE CAUSE OF DEATH, I NEED TO
9 HAVE INFORMATION RELATIVE TO THE PATIENT'S HISTORY: WHAT
10 HAPPENED TO THEM OR WHAT ARE THEY COMPLAINING OF OR WHAT
11 HAVE OTHERS' OBSERVATIONS OF THEM BEEN? I NEED TO EXAMINE
12 THE PATIENT.
13 IT'S CRITICALLY IMPORTANT TO BE ABLE TO UNDERSTAND
14 WHAT'S WRONG TO ACTUALLY LAY HANDS ON A PATIENT, TO USE THE
15 SKILLS THAT I'VE BEEN TRAINED WITH TO DISCERN WHAT HAS
16 OCCURRED, WHAT ILLNESS OR INJURY IS PRESENT. AND THEN IN
17 MAKING AN ASSESSMENT AS TO WHAT'S WRONG, I OBVIOUSLY WOULD
18 USE ANCILLARY INFORMATION FROM LABORATORIES AND X-RAYS AND
19 OTHER STUDIES THAT MAY HAVE BEEN DONE TO FORM THE OPINION AS
20 TO WHAT'S WRONG AND THEN BE ABLE TO FORMULATE A PLAN AS TO
21 WHAT'S RIGHT.
22 IN THE ABSENCE OF BEING ABLE TO FORMULATE AN ACCURATE
23 ASSESSMENT, YOU CAN'T REALLY FORMULATE A PLAN AS TO WHAT'S
24 THE RIGHT THING TO DO FOR A RESIDENT.
25 Q. WHAT TYPES OF DOCUMENTS WOULD YOU USE OR REVIEW TO -- TO
2190
1 MAKE AN ASSESSMENT?
2 A. I GET ASKED THAT ALL THE TIME BY PEOPLE WHO ACCEPT
3 PATIENTS TO THE FACILITIES WHERE I WORK BECAUSE I'M
4 CONTINUOUSLY SAYING TO THEM, I NEED MORE INFORMATION. THE
5 ANSWER IS, I'LL USE INFORMATION THAT'S BEEN PROVIDED BY THE
6 PATIENT THEMSELVES IN HISTORY, BY THEIR FAMILY MEMBERS IN
7 HISTORY, BY OBSERVATIONS OF PROFESSIONALS. AND, OF COURSE,
8 I'LL USE INFORMATION FROM OUTSIDE PHYSICIANS OR HOSPITAL
9 RECORDS OR I'LL USE INFORMATION FROM AN OUTSIDE OR
10 INDEPENDENT LABORATORY, WHATEVER INFORMATION IS AVAILABLE
11 THAT I CAN MAKE USE OF TO ASSIST THE PATIENT MOST
12 APPROPRIATELY.
13 Q. NOW, WE'VE BEEN TALKING IN THE ABSTRACT THERE. LET'S
14 SHIFT SLIGHTLY TO THE CIRCUMSTANCE YOU HAVE WITH THESE FIVE
15 PEOPLE. WHAT -- WHAT DOCUMENTS DID YOU NEED TO REVIEW TO
16 FORMULATE ANY OPINION ABOUT WHAT HAPPENED IN THE CARE OF
17 THESE FIVE PEOPLE?
18 A. BECAUSE THE QUESTION PUT TO ME WAS WHAT HAPPENED, I
19 ASKED FOR INFORMATION IN ADDITION TO THE HOSPITAL RECORDS I
20 WAS INITIALLY PROVIDED WITH, BUT INFORMATION FROM PRIOR
21 HISTORY. AND IN PARTICULAR I WAS INTERESTED IN THE SIX
22 MONTHS OF MATERIAL THAT LED UP TO THEIR ADMISSION TO THE
23 DAVIS HOSPITAL. THE INFORMATION THAT WAS AVAILABLE FROM
24 THOSE SIX MONTHS THAT WAS SUPPLIED TO ME WAS NURSING
25 FACILITY AND HOSPITAL RECORDS AND A FEW DOCTORS' OFFICE
2191
1 NOTES.
2 Q. DID YOU EVER TALK TO ANY OF THE PATIENTS' FAMILIES?
3 A. NO.
4 Q. DID YOU HAVE IN THE RECORDS ANY INDICATION OF PRIOR
5 HISTORY THAT YOU WOULD HAVE NORMALLY -- IF THESE PATIENTS
6 WERE STILL ALIVE, THAT YOU WOULD NORMALLY HAVE GOTTEN FROM
7 EITHER THE PATIENT OR FROM THE FAMILY?
8 A. I'M NOT SURE I UNDERSTAND YOUR QUESTION.
9 Q. IS THERE ANYTHING IN THE RECORD THAT GAVE YOU HISTORY
10 THAT WOULD HAVE COME NORMALLY FROM A PATIENT OR THEIR
11 FAMILY?
12 A. YES.
13 Q. PARTICULARLY MAYBE I'LL HAVE YOU LOOK AT -- UNDER
14 NURSES' NOTES, FOR EXAMPLE, WITH ELLEN ANDERSON, A SERIES OF
15 PAGES THAT START WITH MED-00178. DID YOU REVIEW THAT
16 DOCUMENT?
17 A. YES.
18 Q. ARE YOU COMPARING TWO DOCUMENTS UP THERE?
19 A. I HAVE THE COPIES OF THE MATERIALS THAT I WAS GIVEN FROM
20 THE DAVIS HOSPITAL AND FROM THE NURSING FACILITIES BECAUSE
21 I'VE MADE NOTES ON THESE DOCUMENTS AND HIGHLIGHTED THEM TO
22 ASSIST ME IN PROVIDING INFORMATION. I WOULD LIKE TO MAKE
23 SURE THAT WHEN YOU ASK A QUESTION OF HOW I REVIEWED IT THAT
24 I CAN USE MY OWN NOTES AND -- AND STATE AFFIRMATIVELY THAT
25 THIS WAS A DOCUMENT I REVIEWED.
2192
1 Q. AND YOU'VE COMPARED THAT TO WHAT IS IN -- I GUESS IT'S
2 STATE'S EXHIBIT 6?
3 A. THE FIRST TWO PAGES ARE SIMILAR. I CAN GO THROUGH ALL
4 THE PAGES.
5 Q. NO. THAT'S FINE. I -- I JUST WANT TO MAKE SURE THAT
6 THAT IS ONE THING THAT HAD BEEN PROVIDED FOR YOU.
7 THE DOCUMENTS THAT YOU REVIEWED IN THIS CASE INVOLVING
8 THESE FIVE PEOPLE, ARE THEY THE TYPES USUALLY RELIED ON BY
9 EXPERTS IN THE FIELD?
10 A. YES.
11 Q. TO RENDER AN OPINION ABOUT WHAT HAPPENED?
12 A. YES.
13 Q. NOW, THE GENERAL PRINCIPLES THAT YOU WILL BE TESTIFYING
14 ABOUT TODAY, ARE THEY -- ARE THEY GENERALLY ACCEPTED IN THE
15 RELEVANT MEDICAL COMMUNITY?
16 A. YES.
17 Q. AND AS WE TALK SPECIFICALLY ABOUT THOSE WE'LL -- WE'LL
18 GET INTO WHAT THEY ARE. BASED ON THE -- ON YOUR EXPERTISE
19 AND THE REVIEW OF THE RECORDS, DID YOU FORM AN OPINION
20 REGARDING THE ADMISSION DIAGNOSIS -- THE ADMISSION AND
21 DIAGNOSIS OF SAY ELLEN ANDERSON?
22 A. MY OPINION RELATIVE TO THE STATE OF ELLEN ANDERSON
23 VARIES AS TO THE TIME THAT WE'RE SPEAKING OF. IF YOU'RE
24 SPEAKING OF THE DATE THAT SHE WAS ADMITTED, I'LL GIVE A --
25 CAN GIVE YOU AN OPINION AS TO WHAT I THINK WAS WRONG AT THAT
2193
1 POINT, IF YOU GIVE ME A DATE.
2 Q. OKAY. I BELIEVE THAT DATE WAS THE 29TH OF -- OF
3 DECEMBER.
4 A. MY REVIEW OF THE RECORD ON 29 DECEMBER, INCLUSIVE OF
5 MATERIALS BEFORE THAT, IF I'M ALLOWED --
6 Q. YES. WHAT MATERIALS -- WELL, YOUR OPINION AS OF THAT
7 TIME BASED ON ALL THE RECORDS THAT YOU REVIEWED.
8 A. MY OPINION, BASED ON ALL THE RECORDS REVIEWED, WAS THAT
9 ELLEN ANDERSON SUFFERED FROM SENILE DEMENTIA, AND THAT AT
10 THE TIME THAT SHE WAS ADMITTED TO DAVIS HOSPITAL ON THE 29TH
11 THAT SHE CLEARLY WAS DELIRIOUS FROM MULTIPLE POTENTIAL
12 CAUSES. THAT IN ADDITION TO THOSE TWO PRINCIPLE DIAGNOSES
13 AS THE REASON FOR HER BEING ADMITTED TO THAT FACILITY, THAT
14 SHE HAD A HISTORY OF HAVING FALLEN AND HAD A FRACTURE AND A
15 REPAIR OF A FEMUR FRACTURE -- OR WHAT PEOPLE CALL A HIP
16 FRACTURE. THAT SHE HAD ANXIETY DISORDER OF SOME NUMBER OF
17 YEARS DURATION. THAT SHE HAD OSTEOPOROSIS -- OR LOSS OF
18 BONE MINERAL, THINNING OF THE BONES. THAT SHE HAD
19 EXPERIENCED WEIGHT LOSS, AND THAT SHE HAD HAD A COMPRESSION
20 FRACTURES OF HER SPINE SOMETIME IN THE PAST. Leaves out CAD, CHF, and pneumonia.
21 Q. AND BASED ON YOUR REVIEW OF THE RECORDS, WERE ANY OF
22 THOSE DIAGNOSES THAT YOU MADE BASED ON THOSE RECORDS
23 LIFE-THREATENING AT THAT POINT?
24 A. NO.
25 MS. BARLOW: YOUR HONOR, IF I MAY HAVE THIS CHART
2194
1 MARKED AS AN EXHIBIT, PLEASE. I BELIEVE IT IS EXHIBIT
2 NUMBER 29.
3 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
4 MR. STIRBA: YOUR HONOR, I MAY NOT HAVE ANY PROBLEM
5 WITH THE EXHIBIT, BUT BEFORE IT'S DISPLAYED, COULD WE HAVE A
6 LITTLE FOUNDATION ABOUT WHAT IT IS AND WHAT IT PURPORTS TO
7 REPRESENT?
8 THE COURT: YES. WHY DON'T YOU GO AHEAD AND LAY A
9 FOUNDATION.
10 MS. BARLOW: I'D BE HAPPY TO DO THAT.
11 Q. (BY MS. BARLOW) DR. FEHLAUER -- NO. HOLD IT OVER JUST
12 FOR YOURSELF FIRST. HAVE YOU SEEN THIS CHART BEFORE?
13 A. YES.
14 Q. AND WHERE HAVE YOU SEEN IT?
15 A. THIS IS A CHART I PREPARED AND HAS BEEN PLACED ON THIS
16 BOARD DURING MY PREPARATION FOR TESTIMONY.
17 Q. AND WHERE DID YOU GET THE INFORMATION FROM THIS CHART --
18 THAT YOU PUT ON THIS CHART, EXCUSE ME?
19 A. THE INFORMATION FROM THIS CHART IS BASED ON LECTURES
20 THAT I GIVE TO COMMUNITY GROUPS, PHYSICIANS, NURSING STAFFS,
21 STUDENTS, RELATIVE TO UNDERSTANDING THE DIFFERENCE BETWEEN
22 DEMENTIA, A SYNDROME OF LONG DURATION ASSOCIATED WITH MEMORY
23 LOSS AND FUNCTIONAL LOSS; AND DELIRIUM, A SYNDROME OFTEN
24 OCCURRING IN DEMENTIA, BUT NOT EXCLUSIVELY, WHERE THE
25 PATIENT IS SUDDENLY WORSE, EXHIBITING SUDDEN CHANGES DURING
2195
1 A DAILY OR OTHERWISE TIME FRAME THAT'S REVERSIBLE AS OPPOSED
2 TO BEING PROGRESSIVE AND IRREVERSIBLE.
3 Q. DOES THIS ACCURATELY REFLECT THEN A SUMMARY OF WHAT YOU
4 ARE GOING TO TESTIFY TODAY?
5 A. YES.
6 MS. BARLOW: YOUR HONOR, I WOULD MOVE FOR ADMISSION
7 OF STATE'S EXHIBIT 29.
8 MR. STIRBA: YEAH. I HAVE AN OBJECTION AS TO
9 RELEVANCY, YOUR HONOR.
10 THE COURT: OKAY. IS THERE SOMETHING YOU CAN GO ON
11 AND THEN WE CAN -- OR IS THIS AT A POINT WHERE WE NEED TO --
12 MS. BARLOW: THIS IS PRETTY MUCH -- PRETTY BASIC,
13 YOUR HONOR.
14 THE COURT: OKAY. LADIES AND GENTLEMEN, WE WERE
15 HERE A HALF HOUR BEFORE WE TOOK THIS FIRST BREAK. AND IF
16 YOU WANT TO GO OUTSIDE TO TAKE A FIVE-MINUTE BREAK, I DON'T
17 THINK IT'S GOING TO BE MUCH MORE THAN FIVE MINUTES. SO THAT
18 JUST BE IN A PLACE WHERE WHEN THE BAILIFF NOTIFIES YOU TO
19 COME BACK IN, THAT YOU WILL COME IN.
20 DURING THIS BREAK REMEMBER IT'S YOUR DUTY NOT TO
21 CONVERSE AMONG YOURSELVES REGARDING THE CASE OR TO CONVERSE
22 WITH ANYONE ELSE ABOUT THE CASE OR TO ALLOW ANYONE TO
23 ADDRESS YOU REGARDING THE SUBJECT OF THIS TRIAL. AND -- AND
24 IT'S ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
25 THE CASE IS FINALLY SUBMITTED.
2196
1 SO IF YOU'LL JUST -- WE'LL BE IN RECESS UNTIL YOU'RE
2 NOTIFIED.
3 (WHEREUPON, THE JURY'S EXCUSED.)
4 THE COURT: YOU MAY BE SEATED. THE RECORD WILL
5 REFLECT THAT THE JURY HAS LEFT THE COURTROOM.
6 OKAY. WHAT IS THE -- WHERE ARE WE GOING WITH THIS AND
7 THEN WHAT IS THE OBJECTION?
8 MS. BARLOW: YOUR HONOR, I WAS GOING TO HAVE HIM --
9 HE'S GOING TO TESTIFY THAT WITH EACH ONE OF THESE PEOPLE
10 THERE WAS DEMENTIA, BUT OVERLYING THAT WAS DELIRIUM, BASED
11 ON HIS REVIEW OF THE RECORD.
12 HE WILL TESTIFY THAT DELIRIUM IS TREATABLE. HE WILL
13 TESTIFY THAT IT WAS NOT TREATED, THAT IT -- THAT IT FACTORED
14 INTO THE WHOLE DECLINE ALONG WITH THE MEDICATIONS.
15 ESPECIALLY -- HE'S GOING TO TESTIFY THAT DELIRIUM IS OFTEN
16 CAUSED BY -- OH, I CAN'T THINK OF THE WORD I WANT -- BY THE
17 MEDICINES THEMSELVES THAT -- THAT ARE USED FOR DEMENTIA AND
18 SPECIFICALLY THE MEDICINE -- THE MEDICATIONS THAT WERE USED
19 IN THIS CASE. AND THAT -- THAT THOSE MEDICATIONS CAN
20 CAUSE -- CAN CAUSE DELIRIUM.
21 AND THE WAY YOU TREAT THAT IS WHEN YOU SEE THE
22 DELIRIUM, YOU TAKE THEM OFF THE MEDICINES -- THE MEDICATIONS
23 TO SEE IF THE MEDICATIONS ARE CAUSING THE DELIRIUM. BUT
24 WHAT HAPPENED IN THIS CASE IS INSTEAD OF DIAGNOSING THE
25 DELIRIUM AND WITHDRAWING THE MEDICATIONS THAT CAN CAUSE THE
2197
1 DELIRIUM, THE MEDICATIONS WERE CONTINUED, SOMETIMES
2 INCREASED, AND -- AND THE SEDATING EFFECT OF THESE
3 MEDICATIONS LED TO THE DECLINE OF THESE PEOPLE UNTIL
4 EVENTUALLY THEY BECAME UNRESPONSIVE, COMATOSE. FAMILY
5 MEMBERS WERE TOLD THAT THEY WERE NEAR DEATH AND THEN
6 MORPHINE WAS ADMINISTERED.
7 AND THAT'S WHY THIS IS RELEVANT BECAUSE THE DELIRIUM
8 VERSUS THE DEMENTIA -- I MEAN, I DON'T KNOW THAT THERE'S ANY
9 QUESTION THAT THESE PEOPLE WERE DEMENTED, BUT DEMENTIA IS
10 NOT -- WHILE IT IS A TERMINAL ILLNESS -- IS NOT USUALLY A
11 SOON-TO-BE TERMINAL ILLNESS. It's always terminal.
12 AND SO THAT'S WHY THE DELIRIUM TESTIMONY WILL BE
13 SIGNIFICANT BECAUSE HE WILL TESTIFY THAT THE DELIRIUM IS
14 WHAT BROUGHT THEM TO THIS UNIT. THE DELIRIUM WAS NOT
15 TREATED IN AN EFFECTIVE -- IN AN APPROPRIATE MANNER AS THE
16 COURT -- THE TERM THE COURT USED -- WAS NOT TREATED IN AN
17 APPROPRIATE MANNER, AND SO THE CONDITION OF THESE PEOPLE
18 WORSENED AND WORSENED UNTIL FINALLY MORPHINE WAS
19 ADMINISTERED.
20 THE COURT: OKAY. ANY OBJECTION?
21 MR. STIRBA: YEAH. THIS IS WHERE I THINK WE GET
22 INTO THE TOTALITY PROBLEM. HE'S NOT TESTIFYING THAT
23 DELIRIUM CAUSED THE DEATH. DELIRIUM -- I MEAN, THE EVIDENCE
24 HAS BEEN OVERWHELMING IN THIS CASE ABOUT THE STATUS OF THESE
25 PATIENTS BY THEIR OWN TREATING PHYSICIAN BEFORE THEY WENT TO
2198
1 THE HOSPITAL. TO NOW ALLOW HIM TO TESTIFY, OH, BY THE WAY,
2 NOT ONLY WERE THEY DEMENTED, BUT I'M ALSO SAYING BASED UPON
3 A REVIEW OF THE RECORDS THEY WERE DELIRIOUS AS WELL, AND
4 THEN GO INTO ALL OF THAT, IT SEEMS TO ME THAT WE'RE INTO THE
5 AREA OF DEALING WITH WHETHER OR NOT THIS DOCTOR ENGAGED IN
6 SOME KIND OF CIVIL WRONGDOING AND NOT CRIMINAL WRONGDOING.
7 HE'S ALREADY TESTIFIED THAT HE THOUGHT THEY WERE
8 DELIRIOUS AS WELL AS DEMENTED ON ADMISSION. HE'S TESTIFIED
9 TO THAT. BUT HE CAN'T SAY, BECAUSE IT'S NOT -- IT'S NOT
10 LOGICAL TO SAY THIS -- THAT DELIRIUM CAUSED THE DEATH.
11 IF HE WANTS TO SAY THAT THE MEDICATIONS THAT WERE
12 PRESCRIBED THAT I SAW IN THE HOSPITAL WERE INAPPROPRIATE, I
13 MEAN, THEY WERE NOT THE CORRECT ONES, AND THE REASON WHY
14 THEY WEREN'T THE CORRECT ONES IS BECAUSE THEY WERE DELIRIOUS
15 AND NOT DEMENTED, I GUESS CONSISTENT WITH WHAT HAS BEEN
16 REPRESENTED TO THE COURT ABOUT THE THEORY AND WHAT I THINK
17 THE COURT SAID THAT CAN BE OFFERED, I THINK THAT'S PROPER.
18 BUT TO GET DOWN THIS PATH OF DELIRIUM VERSUS
19 DEMENTED -- WHAT DELIRIUM MEANS VERSUS DEMENTED, I MEAN, I
20 THINK IT'S IRRELEVANT TO THE ISSUES BEFORE THE COURT AND --
21 AND IT'S NOT A SITUATION WHERE HE'S GOING TO TESTIFY THAT
22 DELIRIUM CAUSED THE DEATH.
23 AND THERE ARE A NUMBER OF CRITICISMS THAT THIS DOCTOR
24 HAS OF DR. WEITZEL'S CARE, SOME OF WHICH MAY BE RELEVANT IN
25 THE MEDICATION WORLD, BUT SOME OF THEM ARE NOT RELEVANT FOR
2199
1 PURPOSES OF PRECISELY WHAT THIS CASE IS ALL ABOUT BECAUSE
2 THEN WE'RE INTO THE TOTALITY ISSUE, AND I'VE ADDRESSED THOSE
3 IN THE MEMO. THAT'S WHY I OBJECTED.
4 THE COURT: OKAY. MISS BARLOW?
5 MS. BARLOW: YES. THE COURT ORDERED THIS MORNING
6 THAT THE EXPERTS COULD GIVE AN OPINION AS TO WHETHER THE
7 CARE WAS OR WAS NOT APPROPRIATE, AND IF NOT, WHAT SHOULD
8 HAVE BEEN APPROPRIATE. AND THAT IS EXACTLY WHAT THIS
9 TESTIMONY IS RELEVANT TO. AND IT -- IT DOES TIE TO THE
10 MEDICATIONS DIRECTLY BECAUSE THESE --
11 THE COURT: OKAY. BUT IF IT'S A QUESTION THAT HE
12 MISDIAGNOSED -- I MEAN, WHAT I HEAR MR. STIRBA SAYING THAT
13 HE DOESN'T FIND INAPPROPRIATE, HIS POSITION IS THAT YOU CAN
14 SAY IS WHAT -- IS HOW DR. WEITZEL TREATED THIS PATIENT, WAS
15 THAT APPROPRIATE? AND HE CAN SAY NO, IT WASN'T. WHY WASN'T
16 IT APPROPRIATE? BECAUSE SHE REALLY HAD THIS INSTEAD OF
17 THAT.
18 MS. BARLOW: RIGHT.
19 THE COURT: OKAY. AND THEN -- AND TO TREAT, YOU
20 KNOW, THAT PERSON THEN WITH THESE DRUGS WAS INAPPROPRIATE.
21 OKAY. I DON'T THINK HE SAYS, YOU KNOW -- WHETHER HE DOESN'T
22 LIKE THAT OR NOT, HE SAYS HE'S AGREEABLE ON THAT. I GUESS
23 THE ISSUE IS, IF HE FAILED TO DIAGNOSE SOMETHING -- YOU
24 KNOW, THERE'S A FAILURE TO DIAGNOSE, OKAY, HOW DOES THAT
25 LEAD US? FAILURE TO DIAGNOSE DELIRIUM, HOW DOES IT LEAD TO
2200
1 MURDER WAS COMMITTED?
2 MS. BARLOW: FAILURE TO DIAGNOSE DELIRIUM -- YOU
3 KNOW, I'M NOT GOING TO SAY, WELL, DID HE FAIL TO DIAGNOSE
4 IT? FAILURE TO SEE WHAT WAS WRONG LEADS TO FAILURE TO
5 CORRECTLY TREAT -- APPROPRIATELY TREAT WHAT WAS WRONG LEADS
6 TO MEDICATIONS THAT ARE WRONG, AND THE MEDICATIONS LED TO
7 THE DEATH.
8 THE COURT: OKAY. BUT ALL OF THESE ISSUES THAT WE
9 HAVE TO PROVE, YOU KNOW, ALL THE MENTAL STATE, IF HE
10 DIDN'T -- IF HE IMPROPERLY OR DID NOT DIAGNOSE DELIRIUM, SO
11 HE WAS JUST A NEGLIGENT DOCTOR --
12 MS. BARLOW: NO, BECAUSE IT CRE -- THE NEXT STEP
13 WILL BE DOES THAT CREATE A RISK OF DEATH FOR THESE PEOPLE.
14 AND -- AND IT DOES BECAUSE NOT GIVING A DIAGNOSIS -- THE
15 DIAGNOSIS OF DELIRIUM WOULD MEAN THAT YOU WOULD TAKE THEM
16 OFF OF THESE MEDICATIONS. BY NOT DIAGNOSING THAT, HE DID
17 NOT TAKE THEM OFF THE MEDICATIONS. IN FACT, HE KEPT THEM
18 ON. HE -- HE INCREASED THE AMOUNTS, AND THOSE MEDICATIONS
19 LED TO THE SUPPRESSION OF RESPIRATION AND THE SUPPRESSION OF
20 THE CENTRAL NERVOUS SYSTEM, WHICH LED TO THE TERMINAL
21 COMATOSE STATE, AT WHICH TIME HE ADMINISTERED THE MORPHINE.
22 AND SO THAT -- THAT IS WHY IT'S RELEVANT. YOU KNOW,
23 I'M NOT SAYING HE WAS A BAD DOCTOR BECAUSE HE MISDIAGNOSED.
24 WHAT DR. FEHLAUER WILL TESTIFY TO IS THAT HERE IN THE
25 D.S.M., THIS DIAGNOSTIC AND STATISTICAL --
2201
1 THE COURT: I KNOW WHAT A D.S.M. IS.
2 MS. BARLOW: OKAY. THE D.S.M. HERE IN THE D.S.M.
3 IS DELIRIUM. HERE ARE THE -- THE SYMPTOMS OF DELIRIUM.
4 THOSE SYMPTOMS WERE PRESENT. DELIRIUM WAS NOT DIAGNOSED.
5 AND THEN UNDER THE D.S.M., HERE'S WHAT YOU DO FOR DELIRIUM.
6 ONE OF THE THINGS YOU LOOK AT VERY CLOSELY IS WHETHER
7 MEDICATIONS ARE CAUSING THE DELIRIUM. AND IF MEDICATIONS --
8 AND -- AND HOW DO YOU FIND OUT IF THE MEDICATIONS ARE
9 CAUSING THE DELIRIUM? YOU WITHDRAW THE MEDICATIONS. AND
10 THAT'S NOT WHAT HAPPENED HERE.
11 APPROPRIATELY, THE APPROPRIATE SITUATION AT THAT POINT
12 WOULD BE TO WITHDRAW THE MEDICATIONS TO SEE IF THAT'S
13 CAUSING THE DELIRIUM, WHICH IS THE ACUTE PROBLEM THAT
14 BROUGHT THEM TO THE HOSPITAL. AND IF YOU DON'T WITHDRAW THE
15 MEDICATIONS, BUT INSTEAD INCREASE THE MEDICATIONS -- AND
16 THEN HE WILL TESTIFY AS TO THE EFFECT ON THE ELDERLY OF
17 THESE MEDICATIONS.
18 AND THAT CLEARLY LEADS US TO THE FINDING -- I MEAN,
19 OKAY. I WILL ASK HIM, DID IT CREATE A RISK OF DEATH TO --
20 TO INCREASE MEDICATIONS INSTEAD OF DECREASE MEDICATIONS?
21 AND -- AND FROM THERE, YOU KNOW, GETS INTO -- I MEAN, IT
22 CONTINUES OUR THEORY OF THE CASE THAT MEDICATIONS -- --
23 OVERMEDICATION IS WHAT KILLED THESE PEOPLE.
24 THE COURT: OKAY. ANYTHING FURTHER?
25 MR. STIRBA: I JUST WANT TO SAY THIS, JUDGE. I
2202
1 THINK THE PROBLEM IS -- IT'S NOT THE ADDRESSING THE
2 MEDICATIONS. IT'S GOING DOWN THIS PATH OF DELIRIUM AS BEING
3 SOMEHOW RELEVANT TO THE DEATH. THE MEDICATIONS, AS I
4 UNDERSTAND IT, ARE RELEVANT TO THE DEATHS. IF THIS DOCTOR
5 WANTS TO SAY THE MEDICATIONS SHOULD NOT HAVE BEEN PRESCRIBED
6 BECAUSE IN MY OPINION THEY SUFFERED FROM DELIRIUM, I GUESS
7 HE CAN SAY THAT. I DON'T -- THAT'S NOT MY PROBLEM.
8 BUT GOING DOWN THIS EXTENSIVE PATH LIKE HE MISDIAGNOSED
9 OR HE DIDN'T SEE IT OR SOMETHING LIKE THAT, THAT'S WHERE I
10 HAVE A PROBLEM WITH THE QUESTIONING. I THINK IT SHOULD BE
11 POSED AFFIRMATIVELY IN TERMS OF: WOULD YOU HAVE PRESCRIBED
12 X ON SUCH AND SUCH A DAY?
13 AND THEN THE DOCTOR CAN SAY, I GUESS, NO.
14 WHY NOT?
15 BECAUSE I DON'T FEEL THAT WAS THE APPROPRIATE
16 MEDICATION BECAUSE I THOUGHT THEY WERE DELIRIOUS.
17 I MEAN, THAT IS NOT MY PROBLEM. IT'S GOING FURTHER IN
18 TERMS OF THE CONDUCT AND THE MISDIAGNOSIS -- OR THE APPARENT
19 MISDIAGNOSIS AND GOING DOWN THAT TRAIL WHERE I THINK WE
20 REALLY ARE LITIGATING A CIVIL CASE AND NOT A MURDER CASE.
21 MS. BARLOW: BUT CONDUCT HE CAN TESTIFY TO, YOUR
22 HONOR. I MEAN, THAT -- THAT'S NOT A VIOLATION OF 704.
23 THE COURT: NO, BUT I GUESS THE QUESTION IS
24 RELEVANCE. WHAT -- WHAT WE'RE TALKING ABOUT IS RELEVANCE
25 AND WHAT WE WERE TALKING ABOUT BEFORE AND WHAT I'VE SAID IS
2203
1 THAT IF SOMEBODY DIDN'T TAKE AN X-RAY, YOU KNOW, IS THAT --
2 WOULD THAT CAUSE THESE PEOPLE TO DIE? DID SOMEBODY -- YOU
3 KNOW, IF THEY ARE MISDIAGNOSIS -- IF THERE WAS A
4 MISDIAGNOSIS, DID THAT CAUSE SOMEBODY TO DIE?
5 MS. BARLOW: YOUR HONOR, IT -- IT'S NOT JUST --
6 IT'S NOTHING THAT YOU CAN SAY AT THIS POINT -- AND IT
7 WOULDN'T BE JUST AT THIS POINT THIS ONE THING CAUSED THE
8 DEATH, ALTHOUGH PERHAPS -- WELL, AND IT ISN'T. IT'S THE
9 OVERMEDICATION. BUT WHAT LED TO THE OVERMEDICATION IS
10 RELEVANT, AND I THINK THE JURY NEEDS TO BE INFORMED.
11 THE COURT: BUT -- BUT YOU'RE STARTING OUT --
12 AREN'T -- AREN'T YOU STARTING OUT WITH A NEGLIGENCE ISSUE?
13 IF YOU'RE SAYING THAT HE MISDIAGNOSED -- IF THIS WITNESS IS
14 GOING TO SAY HE MISDIAGNOSED THIS AS DEMENTIA WHEN IT WAS
15 DELIRIUM -- IS THAT WHAT HE'S GOING TO TESTIFY?
16 MS. BARLOW: I DON'T -- HE'S NOT GOING TO MAKE --
17 HE'S NOT GOING TO SAY THERE WAS A MISDIAGNOSIS.
18 THE COURT: WELL, WHY DO WE A BIG -- WHY DO WE HAVE
19 A BIG CHART ABOUT DEMENTIA AND DELIRIUM AND THE DIFFERENCES
20 BETWEEN THEM, AND HERE'S WHAT I GO OUT AND LECTURE ON.
21 MS. BARLOW: SO -- BECAUSE THE JURY -- THE JURY HAS
22 HEARD THE WORD DEMENTIA. YOU KNOW, THEY'RE GOING TO HEAR
23 THE WORD DELIRIUM. WHAT DOES THAT MEAN. THAT'S WHY WE HAVE
24 AN EXPERT HERE. WE HAVE AN EXPERT HERE TO EDUCATE THEM AS
25 TO WHAT DEMENTIA VERSUS DELIRIUM IS.
2204
1 THE COURT: OKAY. BUT WE GET BACK TO THE POINT
2 THAT WE HAVE TO HAVE SOME SORT OF INTENTIONAL CONDUCT TO
3 PROVE MURDER. AND YOU'RE SAYING THAT HOW WE GET TO THAT?
4 MS. BARLOW: OR KNOWING CONDUCT.
5 THE COURT: WELL, KNOWING CONDUCT. BUT IT'S NOT
6 KNOWING CONDUCT, IT'S NEGLIGENT CONDUCT IF A PERSON
7 MISDIAGNOSES DEMENTIA INSTEAD OF DELIRIUM.
8 MS. BARLOW: WELL, IT'S NOT AN INSTEAD OF. I MEAN,
9 OKAY, IT MAY BE NEGLIGENCE IF HE DOES IT WITH ONE PERSON,
10 BUT -- AND I CAN'T REMEMBER WHICH CASE IT IS IN OUR TRIAL
11 MEMORANDA, BUT -- NO, ACTUALLY IT'S -- IT'S THE WEINSTEIN
12 QUOTE, I BELIEVE, IN THE TRIAL MEMORANDUM ABOUT, YOU KNOW,
13 MAYBE ONCE IT HAPPENS IT MAY BE NEGLIGENCE, IT MAY BE A
14 MISTAKE, IT MAY BE INADVERTENCE, BUT WHEN YOU HAVE IN FIVE
15 CASES WITHIN A, YOU KNOW, JUST A SIX-WEEK PERIOD OF TIME,
16 WHERE THERE IS CLEAR EVIDENCE OF DELIRIUM AND EACH TIME THE
17 DEFENDANT JUST IGNORED -- AND AS A DOCTOR, HOLDING HIMSELF
18 AS A GERIATRIC SPECIALIST, HE SHOULD KNOW TO LOOK FOR
19 DELIRIUM. AND HE HOLDS -- SO -- SO WITH FIVE PATIENTS OVER
20 THIS SIX-WEEK PERIOD OF TIME, HE JUST DOESN'T -- I DON'T
21 KNOW IF HE DOESN'T SEE IT AND THAT WOULD PROBABLY BE
22 RECKLESSNESS --
23 THE COURT: OKAY. LET'S SAY WE HAD FIVE DEMENTED
24 PATIENTS --
25 MS. BARLOW: UH-HUH.
2205
1 THE COURT: -- AND HE SAYS OH, GEE. THEY ALL LOOK
2 DEMENTED TO ME, BUT, YOU KNOW, HE WAS WRONG. HE WAS WRONG
3 AND HE WAS NEGLIGENT BECAUSE HE SHOULD HAVE LOOKED UP
4 D.S.M.-III R. AND IF HE WOULD HAVE LOOKED UNDER DELIRIUM HE
5 WOULD HAVE SAID, OH, MY GOSH, WHAT I REALLY HAVE IS
6 DELIRIUM. INSTEAD OF SAYING, HEY, THESE GUYS HAVE DEMENTIA.
7 I REALLY KNOW THEY'VE GOT DELIRIUM, BUT I'M GOING TO SHOW --
8 I'M GOING TO TREAT THEM LIKE THEY'VE GOT DEMENTIA.
9 THOSE TO ME ARE TWO DIFFERENT ISSUES. ONE SHOWS
10 KNOWLEDGE AND INTENT. ONE SHOWS, HEY, HE WAS A BAD DOCTOR.
11 HE DIDN'T UNDERSTAND.
12 MS. BARLOW: WELL, AND YOUR HONOR, THEY MAY SHOW
13 THE SAME THING. BUT, I MEAN, IF WITH ONE PERSON, IF IT
14 HAPPENS WITH ONE PATIENT --
15 THE COURT: I KNOW, BUT IF YOU HAVE FIVE PATIENTS
16 THAT ARE EXACTLY THE SAME --
17 MS. BARLOW: AND THEY AREN'T EXACTLY THE SAME.
18 THE COURT: BUT, I MEAN, DEMENTIA VERSUS DELIRIUM.
19 MS. BARLOW: UH-HUH. IT'S NOT VERSUS. IT'S
20 DEMENTIA IN ADDITION TO DELIRIUM.
21 THE COURT: THEY ALL COME IN -- OKAY. BUT THEY ALL
22 COME IN HERE -- YOU KNOW, WHAT I'VE HEARD IS THAT THESE FIVE
23 PATIENTS BASICALLY CAME IN HERE, MOST OF THEM, FROM REST
24 HOMES. THEY WERE IN REST HOMES BECAUSE THEY WERE SUFFERING
25 EITHER ALZHEIMER'S OR DEMENTIA IN SOME FORM.
2206
1 MS. BARLOW: RIGHT.
2 THE COURT: IS THAT AGREED OR NOT?
3 MS. BARLOW: THAT'S AGREED. HE -- HE WILL --
4 THE COURT: OKAY. SO HE'S NOT --
5 MS. BARLOW: HE'S NOT GOING TO SAY THEY'RE NOT
6 DEMENTED.
7 THE COURT: YOU'VE GOT FIVE OLDER PEOPLE WHO ARE
8 SUFFERING FROM DIFFERENT FORMS OF DEMENTIA THAT COME IN
9 HERE. THEY'RE ALL -- LET'S SAY THEY'RE ALL IN THE SAME SORT
10 OF SITUATION. SO THAT SAY LIKE -- LET'S JUST SAY THIS. HE
11 SAYS THEY WERE MISDIAGNOSED. IT SHOULD HAVE BEEN DELIRIUM.
12 AND THEN THE JURY GOES IN THERE AND HOW DO THEY DEAL WITH
13 THAT. THE DOCTOR MISDIAGNOSED THEM, THEREFORE, HE MURDERED
14 THEM?
15 MS. BARLOW: NO, YOUR HONOR, BECAUSE THAT IS NOT
16 THE ONLY EVIDENCE. I MEAN, THIS IS JUST ONE PART OF THE
17 EVIDENCE.
18 THE COURT: I UNDERSTAND.
19 MS. BARLOW: AND WE -- AND WE HAVE TO -- YOU KNOW,
20 WE HAVE TO BUILD IT ONE UPON THE OTHER BECAUSE THIS IS NOT
21 SOMETHING THAT JUST ALL OF A SUDDEN A GUN WAS PULLED OUT AND
22 A SHOT WAS FIRED.
23 THE COURT: I UNDERSTAND THAT, BUT I MEAN, WHAT --
24 WHAT IS WRONG WITH ASKING THIS WITNESS, WAS IT
25 APPROPRIATE -- OKAY. WHAT YOU VIEWED -- YOU SAW THE RECORDS
2207
1 SIX MONTHS BEFORE, YOU SAW THE ADMISSION, AND YOU SAW THE
2 FIRST THING THAT DR. WEITZEL DID. WAS THAT APPROPRIATE?
3 NO, IT WASN'T APPROPRIATE.
4 WHY WASN'T IT APPROPRIATE?
5 BECAUSE IT REALLY WASN'T DEMENTIA. IT WAS DELIRIUM.
6 AND HE SHOULDN'T HAVE DONE THAT.
7 MS. BARLOW: AND THEN CAN HE EXPLAIN THE DIFFERENCE
8 BETWEEN DEMENTIA AND DELIRIUM?
9 THE COURT: WELL, BUT SEE, IF WE GET IN THE BIG
10 ISSUE --
11 MS. BARLOW: AND I'M FINE WITH THAT, YOUR HONOR.
12 THE COURT: -- ABOUT DEMENTIA AND DELIRIUM AND
13 MISDIAGNOSIS, THEN WE'VE GOT A NEGLIGENCE CASE.
14 MS. BARLOW: YOUR HONOR, I WILL -- I WILL BE HAPPY
15 TO ASK IT IN THAT WAY BECAUSE I THINK IT GETS US TO THE SAME
16 POINT THEN HE SHOULD BE ALLOWED TO --
17 THE COURT: CAN I SEE THE CHART, PLEASE?
18 MS. BARLOW: SURE.
19 THE COURT: THANK YOU.
20 OKAY. IN LIGHT OF WHAT -- IF HE ASKS THAT IT WAS
21 INAPPROPRIATE, AND THEN TO ILLUSTRATE HIS TESTIMONY HE SAYS
22 OKAY, HERE'S -- HERE'S DEMENTIA, HERE'S DELIRIUM, HERE'S WHY
23 I THINK IT WAS INAPPROPRIATE. WHAT IS YOUR RESPONSE TO
24 THAT -- AS TO THAT CHART SPECIFICALLY?
25 MR. STIRBA: WELL, IF WE'RE GOING TO PUT IT IN
2208
1 THAT -- IN THAT VEIN, YOUR HONOR, I THINK PROBABLY HE CAN
2 USE THAT TO ILLUSTRATE HIS TESTIMONY. I'M -- I'M JUST
3 CONCERNED ABOUT THE NEGATIVE, WHAT I'VE