IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA GENERAL CIVIL DIVISION ESTATE OF LISA McPHERSON, by and Section 11 CHURCH OF SCIENTOLOGY FLAG Defendants. _________________________________/ THE PLAINTIFF'S MEMORANDUM OF LAW IN RESPONSE TO
COMES NOW the ESTATE OF LISA McPHERSON and files its Response to the Request of Defendants to Exclude Evidence per Frye. The ESTATE would state that Frye is inapplicable to the opinions of the ESTATE'S experts since the Defendants' experts do not take issue with the scientific principles which form the basis of the opinions, and if they now do, there is no basis to assert that the ESTATE'S experts' opinions are premised upon new scientific principles. Therefore, the ESTATE requests attorney fees and costs incurred to respond to Defendants' motion. Dr. Zumwalt, the Past President of the National Association of Medical Examiners, stated in his attached letter of November 19, 2001 (Exhibit 1): Post mortem vitreous levels of urea nitrogen and creatinine are reliable for assessing pre-mortem dehydration. These tests have been accepted as scientifically valid for more than 20 years by forensic pathologists around the country. Dr. Coe's research is recognized internationally on diagnosing dehydration by the use of vitreous electrolytes. Dr. Derrick J Pounder, MB ChB, forensic pathologist and professor of forensic medicine at the University of Dundee, Scotland, UK, writes that "the analysis of vitreous humour from the eye taken at autopsy is an established method for the diagnosis of dehydration. The leading international authority in this field of post mortem biochemistry is Dr. John Coe...Post mortem blood is never used...Ketones are not necessarily found in dehydration..." Exhibit 9. The defense claims it could not find one case nationwide on using post mortem chemistries to ascertain ante mortem conditions. This is likely due to the fact that this science is not novel, it is based on biological and chemical principles as old as life itself, unlike the science of DNA. However, the Plaintiff did find one case which involves the use of vitreous to diagnose dehydration as the cause of death. Moore v. Massie, 1981 WL 6509 (Ohio App. 5 Dist.). Exhibit 10. Of course, Dr. Coe has testified many times using post mortem chemistries. The defense had one expert with similar expertise of John Coe, M.D. and Calvin Bandt, M.D., William Sturner, M.D., who co-authored a peer-reviewed article with Dr. Coe. The defense has withdrawn him. The Estate suspects that since his research is closely aligned with that of Dr. Coe and Dr. Bandt, he would never participate in denigrating his colleagues or his own noted research. The defense challenges the research of Drs. Coe, Bandt and Sturner with "experts" who have never published on the use of post mortem vitreous as the best reflection of antemortem serum conditions. The experts for the defense attack the validity and reliability of post-mortem chemistry analysis with statements such as "I don't do it and it doesn't make sense to me." That type of opinion should be stricken under Frye. I. SUMMARY OF ARGUMENT. The Defendants' experts recognize that vitreous chemistries are helpful. See Michael Baden's opinions discussed below. It is therefore not "junk science." They take issue with using it exclusively to diagnose dehydration as a cause of death. First, none of Plaintiff's experts use it exclusively. Second, contrary to the defense argument, there is plenty of evidence before and during the autopsy to diagnose death by dehydration. The vitreous simply measures the dehydration's severity. Therefore, the Frye motion filed by the Defendants is improper in that they raise issues that only go to the weight of the testimony, a subject for cross-examination, not a Frye test. [Ft. Harrison Hotel, 12/5/95: "majorly dehydrated...everything really dry. (Defendant, Janice Johnson, M.D., Scientologist).] [Hospital ER, 12/5/95: "And did she look dehydrated, yes.] [... hollow-eyed, skin very thin... " (former Defendant, David Minkoff, M.D., ER physician and Scientologist.)] Even with the above admission by defendant, Johnson, and by former defendant, Minkoff, the experts of Scientology, Michael Baden. M.D. and Cyril Wecht, M.D. , both forensic pathologists, opine Lisa McPherson was not dehydrated in appearance and therefore it is error to look at the post mortem chemistries. However, defense experts admit that vitreous electrolytes are the best indicators of antemortem blood electrolytes. They simply argue that the McPherson postmortem test results of fluid, although collected at autopsy in less than 14 hours after death, cannot be relied upon since the vitreous results conflict with physical findings at autopsy and the testimony of FLAG staff. They apparently ignore the testimony of Robert Davis, M.D., Joan Wood, M.D., David Minkoff, M.D., Janice Johnson, M.D., attendant staffer Rita Boykin, attendant staffer Heather Hof Petzold, the ER personnel, and the two autopsy technicians, Stodgell and Daerr. They also argue that the vitreous is unreliable since it was first tested 57 days after death. Defendants claim that waiting 57 days indicates that Dr. Davis and Dr. Wood did not suspect dehydration at the time of autopsy. However, Dr. Wood has testified that she told Dr. Davis to send out the vitreous for testing on December 6, 1995. He did send out the cerebral spinal fluid, but he forgot to send out the vitreous. She then reminded him to send it out in January 1996. (Exhibit 2 - Wood State Attorney Interview, 6/00, p49:25). The manner of storage complied with ARUP standards, i.e., kept frozen up to six months, which standard is Exhibit 72 to Flag's motion! Other tests conducted four years and six years later on the vitreous and spinal fluid, under the watchful eye of Alan Wu PhD., confirm the first test. Scientology has no credible evidence that the vitreous was improperly collected, stored, shipped, or tested. They argue chain of custody, when there are inventory records and shipping records. In fact, Scientology's experts all testify that they find no fault in the manner of testing or the results of the tests. They simply speculate that the samples must be faulty because the test results make no sense to them. That position is itself unscientific. The truth is the vitreous test results put the entire blame of the death of Lisa on the defendants. As will be seen below, the testimony of Scientology's own experts and the Exhibit articles and letters from pathologists support the theory and practice of vitreous testing and the science that vitreous testing is the most reliable test to objectively demonstrate objectively the severity of dehydration, i.e., electrolyte imbalance, which causes death. Under no circumstances did Lisa McPherson die from a pulmonary embolism because: - the microscopic slides show that there is no total occlusion of the left pulmonary artery. - the only clots present at autopsy were postmortem. - even if antemortem, clots only partially blocked small vessels of 1mm or less, while the left pulmonary artery is 15mm in diameter! - no physical evidence of dilation of right heart chamber or heavy lung. In order for a person to die from pulmonary blockage, there must be at least a 60% blockage of the total vascular bed per recognized textbooks on pulmonary problems and per the only pulmonologist who has testified in this case, Lawrence Repsher, M.D. Finally, there is abundant physical evidence from autopsy that demonstrates death by dehydration, a death that is not accidental but has been ruled a "homicide" by three independent medical examiners retained by the ESTATE, Drs. Coe, Bandt, and Spitz. II. NO NEED FOR A FRYE HEARING.
. . . pure opinion testimony, such as an expert's opinion that a defendant is incompetent, does not have to meet Frye , because this type of testimony is based on the expert's personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Profile testimony, on the other hand, by its nature necessarily relies on some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The jury will naturally assume that the scientific principles underlying the expert's conclusion are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. See Stokes, 548 So.2d at 193-94 ("[A] courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use."). (Emphasis added).Flanagan v. State , 625 So.2d 827 (Fla., 1993). The particular scientific test Scientology desires to have the court strike is the postmortem chemistry analysis, in particular, the vitreous testing at Wuesthoff Hospital Laboratory in January and February of 1996. Without this objective and demonstrable test result, the jury will simply hear experts subjectively express their "personal opinions" as to the presence and severity of dehydration in the cause of death of Lisa McPherson. The vitreous test result is the "picture" of the scene. Of course, Scientology has the right to challenge the scientific test, but it is being intellectually dishonest to take the position that postmortem vitreous testing is not generally accepted in the scientific community. Scientology can challenge the Estate's experts' credentials and the methods used for extraction, storage, transportation, and instrument testing. It can also try to persuade the jury that the specimens are too old to be reliable. However, this goes only to the weight of the testimony on cross examination, not to the science behind the opinions. No credible expert can state that vitreous is not generally accepted to assist and sometimes exclusively be relied upon for diagnosing dehydration.
8 I mean you have situations you (Dr. Michael Baden Deposition - Exhibit 4) This sums up Scientology's attempt to exclude the vitreous testing results. The issue is not whether vitreous electrolyte analysis to determine antemortem conditions is a new scientific principle. It clearly is not. Rather, Scientology attempts to exclude all the postmortem chemistries because the results conflict with Scientology's position on the physical evidence and theory of death. If there is a conflict between the physical findings and chemistry tests, which there is not, then that only goes to the weight of the evidence for cross examination. This is not the purpose of a Frye hearing. For this reason, the Estate requests attorney fees and all costs associated with the pursuit of the Frye hearing by FLAG.
The Frye evidentiary hearing is only necessary if the party is relying upon new scientific principles. Wells v. State, ___So.2d___, 26 Fla. L. Weekly D1658 (Fla 5 th DCA, July 6, 2001 - Exhibit 5) In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand. The trial judge has the sole responsibility to determine this question. The general acceptance under the Frye test must be established by a preponderance of the evidence. Ramirez v. State , 651 So.2d 1164, 1168 (Fla.1995), citing in Brim v. State, 695 So.2d 268 (1997 - Exhibit 6) The Frye court ruled: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye v. United States , 293 F. 1013, 1014 (D.C.Cir.1923). (Emphasis added). Brim v. State, 695 So.2d 268, 270 ( Fla., 1997 - Exhibit 7) In Brim , the court was concerned with the admissibility of DNA testing, which is a two part test. The first part simply relied "upon principles of molecular biology and chemistry," i.e., two samples look the same. The second step is the "calculation of population frequency statistics (which is) based on principles of statistics and population genetics. Accordingly, calculation techniques used in determining and reporting DNA population frequencies must also satisfy the Frye test." Since there were many methods used to calculate and determine frequencies, the court held that the selected method must be generally used. There is only one way to use vitreous analysis to determine antemortem values and that is the recognized way established by Dr. Coe. There is not a scintilla of argument raised by the Defendants that the ESTATE's experts' opinions as to the cause of death of Lisa McPherson from severe dehydration is based on any new scientific principle. Defendants merely argue the weight of the expert testimony, i.e., the Plaintiff's experts change their testimony, which they do not, or they conflict with each other, which they do not, or articles or portions of textbooks do not support the bases of the opinions expressed, which is also not correct. The reason to reject the Frye challenge is that the defense's argument has nothing to do with new or novel scientific principles. Dr. Baden sums up the defense position quite well when he says that it is novel because he does not use vitreous to assist in diagnosing dehydration.
23 Q. In any of their testimony in rendering(Baden Deposition - Exhibit 4) And as un-scientific as it gets, Dr. Baden simply refused to consider the many internally consistent postmortem chemistry results simply because it did not make any sense to him.
16 . . . What I'm However, Dr. Baden concedes as he must that vitreous is the best fluid to correctly reflect antemortem conditions.
1 A. I think what's fair is, when it comes to That is not the Frye test standard. In fact, just because Dr. Baden or Dr. Wecht, who as forensic pathologists, do not use vitreous to help diagnose dehydration, contrary to the text relied upon by the defense and the international community, does not mean that other pathologists in the forensic community do not use the science of postmortem chemistry analysis to diagnose dehydration. See exhibit 9. Consequently, the opinions of Drs. Baden and Wecht should be excluded under Frye . The medical journal articles relied upon by the Defendants actually support the opinions of the ESTATE's experts and show without question that novel scientific principles are not the basis of any of the opinions set forth by the ESTATE's experts. The position of Defendants is, therefore, so frivolous, devoid of any scientific issue in fact, that their pursuit of a Frye issue should mandate costs and attorney fees under '57.105, Florida Statutes. Furthermore, the Defendants' experts' attempt to refute the obvious and established scientific evidence by rank speculation should be excluded per Frye . It is not the focus of a Frye hearing to strike opinion evidence because the opposing party alleges it is based on "junk science." Rather, if an expert has an opinion to assist the trier of fact that is based upon "scientific information," then "[A]ny deficiencies in the experts' opinions are appropriate matters for cross-examination and consideration by the jury." David v. National Railroad Passenger Corporation , ___So.2d___, 26 Fla. L. Weekly D1996 (Fla. 2 nd DCA, Aug. 17, 2001 - Exhibit 8). As will be abundantly clear, the ESTATE's experts do not base their opinion on junk science or new scientific principles. Their opinions are based upon the physical evidence and medical science originating in 1923 on the stability of certain analytes that are determinative of electrolyte imbalance, a lethal condition brought on by profound dehydration. It is irrefutable that a majority of the community of forensic science accepts the use of vitreous chemistries to establish dehydration, when other physical findings suggest it or where other causes of death are ruled out and dehydration remains the only reasonable basis, or where anatomical findings are inconclusive. Attached are letters (Exhibit 9) from noted forensic pathologists and medical examiners working in major metropolitan areas who unquestionably state that vitreous is routinely used to diagnose dehydration: 1. Ross E. Zumwalt, M.D., Chief Medical Investigator State of New Mexico, Albuquerque, New Mexico; 2. Charles S. Hirsch, M.D., Chief Medical Examiner, Dept. of Health, Office of Chief Medical Examiner, New York, N.Y. 3. Brian D. Blackbourne, M.D.,County of San Diego Medical Examiner, San Diego, CA; 4. Michael Graham, MD., Chief Medical Examiner, City of St. Louis, MO; 5. Edmund R. Donoghue, M.D., Chief Medical Examiner, Chicago, IL.; 6. Boyd G. Stephens, M.D., Chief Medical Examiner, San Francisco, CA; 7. Marcella F. Fierro, M.D., Chief Medical Examiner, Commonwealth of Virginia, Richmond, Va.; 8. Garry F. Peterson M.D. Hennepin County Medical Examiner, Minneapolis, Minn; 9. Joseph Davis, M.D., Retired Chief Medical Examiner Miami-Dade County, Miami, FL; 10. Jeffrey Jentzen, M.D., Chief Medical Examiner, Milwaukee County, Milwaukee, Wisconsin; 11. Vernard I. Adams, M.D., Chief Medical Examiner Hillsborough County, Tampa, FL. 12. Derrick J. Pounder, MB, ChB, Pathologist, Professor of Forensic Medicine, University of Dundee, Dundee, Scotland The Defendants also attach letters from pathologists, FLAG'S Exhibit 59: Joseph P. Pestaner, M.D., of Baltimore, with a four-page C.V.; James A. Gibbs, M.D., of James A. Gibbs, Inc., who has no published works and owns and operates the California Cytology Center; Edward T. Konno, M.D., of Bloomfield Hills, Michigan, with a two-page C.V. and no publications; Roland Kohr, M.D. of Terra Haute, IN, with a four-page C.V. with nine publications, none involving postmortem chemistries; Michael S. Handler, M.D. of Overland Park, Kansas, with a 5 page C.V. and publications in diseases of issues not involved in this case; Mark A. Super, M.D., four and one-half-page C.V. with publications concerning no issue in this case; Fazlollah Loghmanee, M.D., eight-page C.V. with perhaps one journal article on issues involved in this case; Larry I. Giltman, M.D., of Dunwoody, GA., a hospital pathologist with a 27-page C.V. with publications with apparent inclusive articles of issues involved in this case; Jack Paston, M.D., of Saratoga Springs, NY, with a one-page C.V.; Arnold R. Josselson, M.D., of Fairfield, CA, with a four page C.V. and publications mostly on ballistics and no issues in this case. All of the above pathologists in FLAG'S Exhibit 59 opine that postmortem chemistries should not be exclusively relied upon to determine or diagnose cause of death. Those findings should first be used in comparison to the anatomical autopsy. The ESTATE's experts agree. Another reason why a Frye hearing should be considered improper in this case. As in this case, The importance of the postmortem chemistries is to assist in determining cause of death when the anatomical is absent a definitive cause or if the extent of a chemical cause such as dehydration, needs to be calculated. Without the postmortem chemistries, one could argue on the extent of the dehydration seen in the gross anatomical examination. With the postmortem chemistries being consistent and "glued" together with the physical test of osmolality, there is no question that the death of Lisa McPherson was caused not just by dehydration, but by "profound" or "severe" dehydration. The Defendants' falsely assert that there is no physical evidence of dehydration. However, testimony of FLAG staff establish Lisa was "majorly dehydrated" prior to death and at autopsy there were reported signs of dehydration in the autopsy protocol of the gross and internal examination. In addition, empirical evidence of dehydration is found in the autopsy pictures and the autopsy microscopic slides. In a Frye hearing, the Second DCA has set the issue as follows:
"the tests in question were sufficiently reliable to justify their admission." David v. National Railroad Passenger Corporation , ___So.2d___, 26 Fla. L. Weekly D1996 (Fla 2 nd DCA, Aug. 17, 2001) (Exhibit 8). III. DEFENDANTS' ATTACK Defendants allege the ESTATE's scientific medical opinions of its experts are based on new scientific principles. They attack the science of the evidence in five ways: 1. The specimens: 57 day old and four year old frozen vitreous, six year old refrigerated cerebral final fluid, (CSF), and four year old frozen serum are all too old to be reliable to reflect antemortem serum chemistries, and therefore, not acceptable in the forensic community. 2. It is not generally accepted in the forensic community to rely on postmortem chemistries exclusively to determine death caused by severe dehydration, "particularly when physical autopsy conflicts." 3. It is not generally accepted in the forensic community that dehydration is a risk factor for thrombosis. 4. The methodology (sic) of the testing done on the fluids, including the shipping, mishandling, storage, and chain of custody tested after stable biochemical life span expired is not generally accepted in the forensic community. 5. The testing instrument, the Beckman, is not designed or certified for testing postmortem chemistries. The above attacks are attacks against the weight of the evidence, something more appropriate for cross examination. David v. National Railroad Passenger Corporation , ___So.2d___, 26 Fla. L. Weekly D1996 (Fla. 2 nd DCA, Aug. 17, 2001) (Exhibit 8). Notwithstanding, the ESTATE will gladly meet its burden by the preponderance of the evidence in showing that its expert opinions in the above five areas are sound and based upon established scientific principles. IV.PHYSICAL EVIDENCE OF DEHYDRATION. Incredibly, the defense argues that there is no physical evidence of Lisa's dehydration. All of the evidence of dehydration comes from FLAG staff and records, as well as the physical autopsy. Contrary to the defense position, the ESTATE's experts do not rely exclusively upon the vitreous tests. Their opinions also rest on the following. 1. PRIOR TO AUTOPSY. The first indication of Lisa's dehydration came from MLO nurse, Judy Goldsberry-Weber, who testified that another Lisa attendant, librarian Alice von Grundelle, came to the MLO office asking about dehydration.
20 A. Alice VanGondell asked me -- she came into the MLO(Goldsberry-Weber deposition of March 28, 2000 - Exhibit 12) Weber estimates that Alice came to see her in the MLO about 10 days after the isolation watch began. (p407:17-20). This would make it around November 28, 1995. Von Grundelle had written a report dated November 22, 1995, stating that Lisa was very violent and that Lisa's breath was foul. (Log, Bates # FSO 00745-00746 - Exhibit 13.) Foul breath is a sign of uremia, i.e., too much urea in system that the kidneys are unable to discharge. She also wrote that Lisa looked sick with fever. Although Weber states above that Von Grundelle wrote a report on dehydration, no such report has been produced by the Defendants. A Knowledge Report has been produced, but it omits dehydration concerns. In fact, many reports of the attendants have not been produced. On a log written by Lisa attendant Rita Boykin, dated November 30, 1995, commencing at 9 p.m., there is an entry timed at 1 a.m., which would be December 1, 1995, and states that Janice Johnson had just visited and stated that Lisa needed a "quart of fluid." (Log, Bates # FSO 00149 - Exhibit 13.) At or around 9:15 a.m., Boykin writes that her co-attendant, Sylvia de la Vega, went Acompletely solid" and is crying in the corner refusing to help anymore because she just can't take it. Then later on December 1, 1995, at 11:00 a.m., Janice Johnson comes back to see Lisa and writes that Lisa needs "Needs 2L fluids when awake and attempt to feed." (Log. Bates # FSO 00214 - Exhibit 13.) Johnson formerly practiced anesthesiology in Arizona. The attendants never got 2liters of fluids down Lisa after that. (Petzold 6/9/98 interview at p81:19 - Exhibit 14.) "Attempt to feed" is also a statement of recognition that Lisa is not eating enough. Petzold noticed also that Lisa's mouth was dry. (p45:14, police interview of 4/10/97 - Exhibit 15.) The last several days Petzold said it was "alarming" (p38:24.) Heather was "frantic." (p45:03.) In addition to these particular indicators of dehydration, it is also undisputed that all guards were called off beginning December 1, 1995, because Lisa was no longer a threat, she had quieted down. Heather Hof Petzold wrote at least three reports to Kartuzinski, (p10:20, State Attorney interview, 6/9/98 - Exhibit 14), commencing on December 2, 1995, telling him that what they were doing for Lisa was not working, (Police interview of 4/10/97, pp34-35 - Exhibit 15). Heather noticed an obvious sharp decline in Lisa's physical condition the last 3-4 days. (p42:20 to 43:08 of police interview of 4/10/97 - Exhibit 15). Lisa was unable to walk the last 3-4 days, (State Attorney interview, 6/9/98, pp57-58 - Exhibit 14). Heather Hof Petzold's reports to Kartuzinski on the alarming decline of Lisa's health went unanswered. These reports, like others, have never been produced! Yet the Scientology experts want everyone to believe that Lisa looked the same on the day she died as she did one or three months earlier! All of this is evidence of dehydration written or testified about by FLAG staff neatly fits in the time frame dictated by the objective postmortem chemistry levels which indicate Lisa would be in an "uremic coma," not unconscious, but very somnolent, obtunded, and moribund around December 1, 1995, per Dr. John Coe and Dr. Calvin Bandt. Then on December 5, 1995 Janice Johnson finally returns to see Lisa in the early evening. She described Lisa's skin looking like a child's skin when it is dehydrated. (Johnson deposition at p299:18-20 - Exhibit 16 and Exhibit 17.) In her police statement of 5/29/96 (Exhibit 17), (before there was anything published on the cause of death), she said that on 12/05/95 Lisa was "very dehydrated at that point. . .ummm, very thin." She further states that Lisa was "majorly dehydrated... everything really dry...you know... mucous membranes get real... real dry. There's just this kinda... you know... sunken dehydrated look." (p40 of 5/29/96 police interview - Exhibit 17). Mucous membranes were dry. ( Johnson Deposition, p298:23 - Exhibit 16.) She admitted that Lisa's mouth was dry and therefore concluded Lisa was dehydrated. (p297:10.) Rita Boykin, who started attending to Lisa on November 23, 1995 until Lisa died, also admits Lisa looked very dehydrated and had lost a lot of weight. (p41:13, Boykin 6/29/98 state attorney interview - Exhibit 18). Dr. David Minkoff testified that Janis Johnson told him that Lisa had lost a lot of weight. (Minkoff Deposition, p83:23 - Exhibit 19). Even with this staggering concession by Rita Boykin and particularly Defendant, Johnson, of obvious severe dehydration before Lisa is taken to the hospital, the Scientology experts exclaim that the autopsy photographs show no signs of antemortem dehydration! When Lisa's body arrived dead at the ER, Patient Care Technician Willie Burdette at the New Port Richey Hospital removed Lisa's body from Johnson's van and noticed she was gray and emaciated with no vital signs and looked as if she had been dead for awhile. (Page 12 of Police investigative report attached as FLAG's Exhibit 2.) Head ER Nurse, Barbara Schmid, R.N., in comparing a live photograph of Lisa to what she remembered Lisa looking like in the ER said:
4 And if you could just take a look at this.(Schmid deposition of July 17, 1997 - Exhibit 20) Finally, former defendant, David Minkoff, M.D., a high ranking public Scientologist and the person who, without seeing Lisa, twice prescribed injectable Valium and a sedative, chloral hydrate, and who was the ER physician at New Port Richey Hospital who pronounced her dead, testified at deposition to the "shocking" physical condition of Lisa upon arrival in the ER.
14 Q Did you ask Janis Johnson why she wasn't up(David Minkoff, M.D., ER physician and Scientologist - Exhibit 19.) Dr. Robert Davis, M.D., the associate medical examiner under Joan Wood, M.D., performed the autopsy at 11:00 a.m. on 12/6/95 after Lisa was pronounced dead at 2151 hours on 12-5-95, i.e., 9:51 p.m., per one of the Defemdants' theories. Dr. Werner Spitz, Estate's expert forensic pathologist, has opined that based on the testimony of an attendant, Laura Arrunada, Lisa was likely dead in the bath tub in the hotel around 4 p.m. according to Arrunada's observing a relaxed sphincter muscle, evidence of neurological compromise. (Spitz Deposition, p348:1-3 - Exhibit 21.) According to FLAG, Lisa died 20-30 minutes before arriving at New Port Richey Hospital from the Ft. Harrison Hotel, or as the van driven by Janice Johnson entered the hospital parking lot. FLAG also alleges through staff executive, Paul Greenwood, that there was no pulse ten minutes after leaving the hotel, which would be 40 minutes before arriving at the hospital. Then again, another very high ranking FLAG representative, Mike Rinder, said in a televised interview, Lisa died inside the hotel. Dr. Minkoff testified that it is "probably possible" that Lisa died inside the hotel. (Minkoff Deposition, p100:2-6 - Exhibit 19.) 2. THE AUTOPSY: PHYSICAL FINDINGS OF DEHYDRATION
A. WEIGHT The Defendant experts opine that Lisa was very thin before she entered the hotel and did not lose weight while she was there. They also say that the scale at the medical examiner's office, which weighed Lisa at only 108 lbs. and was checked every day for accuracy, weighed Lisa in error. Dr. Wecht opines that Lisa was no way near 108 lbs at the time of her death just by eyeballing the autopsy photographs. The ESTATE's experts opine that the scale is correct. There is no evidence to suggest it is wrong, not even by looking at the autopsy photographs. Autopsy tech, Greg Daerr, also said they check the scale every morning to make sure it is accurate. (Daerr Deposition, p144:17-22 - Exhibit 22.) At the scene of the fender bender on November 18, 1995, EMS registered nurse, Bonita Portolano, called Lisa "voluptuous" and estimated her weight at 155 lbs. (Portolano Deposition, p31:07- Exhibit 23) In the ER of Morton Plant on November 18, 1995, both the ER nurse, Kimberly Brennan, and FLAG'S MLO nurse, Weber, estimated Lisa's weight at 140 lbs. (Brennan Deposition, pp43-44 - Exhibit 24, and Weber Deposition, p436:07 - Exhibit 12.) Even the Scientology staffers conclude that Lisa weighed between 140-150 lbs the first few days of her "stay" at the Ft. Harrison Hotel. Rita Boykin, an attendant with Lisa most of the time, estimated her weight at 140 lbs. (Boykin Deposition, p173:16 - Exhibit 25.) Guard Alfonso Barcenas, who brought Lisa protein shakes for many days and saw her nude, estimated her weight at 155 lbs. (Barcenas Deposition, p125:10 - Exhibit 26.) Attendant, Heather Hof Petzold, estimated the weight at 140-150 lbs. (Petzold Deposition, p31:13 - Exhibit 27.) Attendant, Laura Arrunada, said Lisa weighed 68 kilos, i.e., 150 lbs. (Arrunada Deposition, p274:20 - Exhibit 28.) Did Lisa lose weight? Janice Johnson admits that from the last time she saw Lisa on 12/01/95 to 12/05/95, Lisa had lost weight. (Johnson Deposition, p299:07 - Exhibit 16.) The vitreous results indicate profound dehydration. According to biochemical formula, Lisa would have lost up to 25% of her body weight in water loss per Dr. Bandt. At an average of 145 lbs in the beginning of her isolation in the hotel, Lisa's 25% water weight loss equals 36 lb. loss in 17 days, resulting in an end weight of 108 lbs on the day of her death. The scale is correct. The first autopsy technician who took Lisa's body out of the medical examiner's refrigerator, Claude Stodgell, called the investigator as soon as he noticed ".... some injury on the arms and it didn't sound familiar with our, you know, summary. It didn't go along with it and I called the investigator back. (Stodgell Deposition, p41:15-17 - Exhibit 29) ...." she seemed underweight for the story that was in my invest summary." (p42:16-17). "To me, she didn't look healthy, she didn't look -- she didn't look like my -- the story in the summary."(p43:5-7). " She just looked either dehydrated or just not healthy to me." (p47:1-2.) Stodgell called out the weight of Lisa's body to the other autopsy tech, Greg Daerr, "108 lbs.," who wrote it down on the autopsy checklist. "When someone is telling me the weight, I read it back, make sure I'm hearing them right." (Daerr Deposition, p244:15-17 - Exhibit 22.) Daerr testified that the autopsy picture is consistent with a weight of 108 lbs. (p261.) The pictures certainly do not show a 5'-9" woman weighing 150 lbs. (p262.) The first indication of dehydration is the height of 5 feet- 9 inches and weight of only 108 lbs. This is a very thin person, who had been seen weighing 140 lbs to 155 lbs 17 days earlier. There is no indication in the protocol that Dr. Davis questioned the accuracy of this weight read from the scale. Board certified pathologist, Werner Spitz M.D. who escaped Nazi Germany, testified that Lisa looked like she came from a concentration death camp. Dr. Spitz testified (Exhibit 21):
B. PHYSICAL GAUNTNESS, DRYNESS, AND CRUSTINESS From the very beginning of the autopsy, the technician knew that Lisa's appearance was not that of a "healthy person." As soon as Lisa's body was taken out of the refrigerator at the Medical Examiner's office, the autopsy technician, Claude Stodgell, first noticed that Lisa's weight did not conform to the investigative summary. (Stodgell Deposition, p42:17-18 - Exhibit 29.) "I believe she looked dehydrated to me or ....Emaciated." (p46:11-14.) Confirming the deposition testimony of Robert Davis, M.D., the written autopsy protocol reports signs of dehydration: - Hippocratic facies is present - Crusted blood is present at the nares. - Crusted brown dried material is present within the mouth, on the lips; - crusted (dried) material is present on the eyelids. - Right and left pleural cavities are free of fluid. - The pericardial cavity has 2 cc of pale clear fluid.. - The peritoneal cavity is free of fluid
Greg Daerr, who has done over 3,500 autopsies, was the autopsy technician assisting Dr. Robert Davis, M.D. during the autopsy and made the "Y incision" of the chest and abdominal body. Daerr testified (Exhibit 22):
15 And then once the autopsy was -- once we(Greg Daerr Deposition - Exhibit 22.) Daerr also took pictures during autopsy. Picture #26 is of the opened left lung with a dry outside. "...this, to me, looks like a dry, sticky appearance, the outside of this lung ... (Daerr Deposition, p197:22-25 - Exhibit 22.) Before the agents of Scientology privately contacted Dr. Robert Davis, his deposition was taken. He insisted upon having his deposition in his attorney's office. His attorney announced at the beginning that Dr. Davis would express no opinions. Quite odd for a medical examiner! However, Dr. Davis did express opinions, which he later changed 180 degrees after privately meeting with Scientology operatives and then privately meeting with Scientology experts, attorneys, and corporate representatives in Clearwater at Scientology headquarters. The defense makes much ado about the lack of any mention of skin turgor in the protocol. First, Dr. Minkoff reports that Lisa 's skin was "very thinned." Then in the deposition of Robert. Davis, M.D. , he testified (Exhibit 30) that he does not use the clinical term "turgor" as a sign for dehydration. (p33:14). Rather, he uses the term "Hippocratic facies" which he defines as
21 "facies" refers to a Contrary to the defense experts, Dr. Davis does not look for nor describe internally dry organs. (Davis Deposition, p35:18-24.37 - Exhibit 30)
9 the things that I emphasize are the Dr. Davis without question stated that the term "average nutritional status" appearing in the protocol is inconsistent with his term of significant dehydration: Hippocratic facies." (p207.) What is important is his opinion of "significant dehydration," which confirms Greg Daerr's testimony. ( Davis Deposition - Exhibit 30.)
20 I think dehydration was significant. I don't know that I And yet the defense amazingly attests that there is no physical evidence of dehydration! C. THE MICROSCOPIC SLIDES: KIDNEY DAMAGE. The defense argues there is no kidney damage. The microscopic slides of the kidney show damage caused by high protein intake or dehydration. See attached report (Exhibit 31) of renal pathologist, Agnes Fogo, M.D., retained expert by the ESTATE. D. EXTRACTION, STORAGE AND TESTING OF FLUIDS. Since it will be readily transparent that the first attack
of reliability
of vitreous is frivolous, Defendants then argue that ABecause
Accepted
Testing Procedures to Protect Against False Readings and
Contamination
were not Followed," all postmortem chemistry tests, including
the vitreous
results, must be excluded. This again goes to the weight of the
evidence.
Daerr, who has done over 3,500 autopsies, describes (Exhibit
22) his
routine of extracting the fluids:
22 A. I would -- because I do it the same every 1 minutes of autopsy.
...
13 Q. And do you know where it goes in the tox At 2 p.m. on the day of the autopsy, Daerr sent cerebral
spinal fluid
(CSF) to Wuesthoff Hospital laboratory per the written inventory
sheet.
(pp218-219.) He usually sends vitreous right after the autopsy,
but at
other times, he sends it out much later. (p222.) Daerr's
Deposition Exhibit
15 (Exhibit 22) is the Wuesthoff requisition form that he sent
out with
the vitreous sample on January 29, 1995, at the direction of Dr.
Davis
for sodium and chloride testing. (p224.) The vitreous was sent
"in a lab
pack overnight." (p229:20.) Then on 1/31/95 there is additional
request
by phone for additional testing of the vitreous at Wuesthoff.
(p226.)
The McPherson vitreous was tested by Barbara Capshaw at
Wuesthoff. She
recalled going to a seminar conducted by Dr. John Coe in
Sarasota, Florida
in 1994. She described Dr. Coe as "the leading authority on
vitreous from
cadavers." (Capshaw Deposition, p17:4-5 - Exhibit 32.) The
McPherson vitreous
was sent out at 2:00 p.m. on 1/29/96 in a sealed box and arrived
at Wuesthoff
in Rockledge, Florida, the next day at 10:30 a.m. (p28, Exhibit
26.) She
signs for it, (Exhibit 9 to Capshaw deposition. 29:9-10.) It
goes directly
into a locked toxicology lab refrigerator. (27:1-2.) The
specimens have
identification on the tubes from the medical examiner's office
to maintain
chain of custody. They remain in this tube throughout testing.
(p32.)
The sample was tested the next morning. (p41.)
Since 2/1/96, the remaining frozen vitreous at the medical
examiner's
office was tested by the state attorney with Dr. Bandt present
at the
lab owned and run by Scientology's expert, Fredric Rieders, M.D.
in Philadelphia
on November 30, 1999, and then at St. Anthony's Hospital in St.
Petersburg
on December 10, 1999. The CSF, sent to Wuesthoff on the day of
autopsy,
was finally tested at the request of the ESTATE and over defense
objections
at Orlando Regional Medical Center on October15, 2001. Those
results are
attached. (Bandt's Chart - Exhibit 33.) The results are all
consistent,
thus proving the reliability of the first vitreous testing.
What makes the vitreous testing consistent is the
osmolality of each
specimen, which is the "pi-mesen", i.e. the "glue." While the
testing
for electrolytes is a chemical test, the testing for osmolality
is a physical
test. In the best CSF sample, test tube #2, the osmolality was
500. In
the vitreous and serum tests of December 1999 it was 509. Note
that even
the defense has stated in depositions that Dr. Rieders tests in
November
1999 should not be considered since they were improperly done.
". . .that
some of the that was done at National Medical was not
appropriate in terms
of the methodology"... Because it did not mimic the studies that
were
actually performed by the Wuesthoff Laboratory. Point of fact
that some
of the studies that were done were dramatically different in
principle
from the studies were done at Wuesthoff". (Wu Deposition,
p16:24-17:11
- Exhibit 34.) However, that does not stop the defense from
using it in
their Frye motion. More evidence of intellectual
dishonesty!
Dr. Wu testified that the Beckman was an appropriate
instrument to use
to test vitreous. (p21:5-22:15.) He found no fault in the
testing at Wuesthoff.
(p23:1-6.) Although Dr Wu has never published on vitreous, he
does recognize
Dr. Coe as the expert on vitreous. (p28:14-22.) He concedes that
he does
not have as much expertise on vitreous as Dr. Coe and more
importantly,
he states that no expert on the defense does. (p27:23-28:5.)
Even though
Dr. Wu conveyed his opinion to Mr. Shaw of the inappropriate
testing of
Dr. Reiders before the December 1999 testing at St. Anthony, Mr.
Shaw
never conveyed this information to his pathologists, Dr. Baden
and Dr.
Wecht. (p30.) In fact, Dr. Wecht wrote his February 2000 report
relying
on this incorrect data, which was used to persuade the medical
examiner
to change her opinion on cause of death! Dr. Wecht just learned
that this
data was wrong the day before his depositions in 2001. Now the
Defendants
attempt to use this same incorrect data to persuade this court!
Dr. Wu's opinion is:
1. The vitreous results are in direct conflict with the
attendants'
records in the days prior to Lisa's death. (p46:7-9);
2. The urine results do not agree with the vitreous
results. (p46:11-12);
3. The autopsy protocol describing the various organs and
tissues. (p47:4-7);
4. The chain of custody records at Wuesthoff and the
medical examiner's
office as well as the storage conditions and circumstances of
the testing.
(p47:12-15 and p238:10-15.); and
5. The literature and Dr. Coe's writings do not report
urea this high.
(p47:22-25.)
All of the above arguments go to the weight of the
evidence. None of
it has to do with new scientific principles. The testing he
observed at
St. Anthony on the vitreous kept frozen since the day of autopsy
at the
medical examiner's office was done properly. (p50:5-6 and
p60:21:25.)
Dr. Wu agrees that osmolality above 300 is suggestive of
dehydration.
(p70:20.) Lisa's was 509.
Dr. Wu sums up his opinion that urea nitrogen of 300 is
too high. He
has never seen it. He has never read about it except for cases
of uremia.
Therefore, it makes no sense to him. Therefore, the results are
unreliable.
(pp98-99.) However, experienced physicians have seen urea that
is 300
and above with creatinine of only 2 or 3. (Ramirez Deposition,
p51:4-52:5
- Exhibit 35.) These patients are usually in a nursing home on
high protein
diet, but not drinking enough "free water," similar to Lisa
McPherson.
Dr Wu agrees that the vitreous is the most reliable and
therefore, the
vitreous sodium would reflect the true sodium level at the time
of death.
(Exhibit 34).
1 A. In -- most likelihood, yes. In -- better The vitreous was properly extracted at autopsy. (Wu
Deposition, p116:15-16
- Exhibit 34.) It was not improperly collected. (p117:6.) Dr.
Wu's first
major issue with the Wuesthoff testing is simply the age of the
specimen,
57 days. (p118:11.) It was stored properly with an inventory
sheet. (pp119-120:4.)
After the vitreous was refrigerated in the tox lab at the
medical examiner's
office for two days from autopsy and then tested, it then
remained frozen
per the testimony of the ME's toxicologists. (p127:11-12.)
However, Dr.
Wu has a problem with the vitreous being in a Sears' frost free
residential
freezer that goes through a defrost-thawing cycle, but has no
clue how
that would effect the test results. (p238:10-15.)
Even though the vitreous sample may have thawed and then
re-froze over
4 years, the sodium level would remain unchanged. (p125:12-13.)
He could
not identify one article that supported his assumption that
repeated freeze-thaw
cycles would significantly alter the levels of analytes in the
vitreous.
All he could say is that there are articles somewhere which
"discourage"
this for serum. (p128:2-5.) He does concede that urea does not
break down
either, but he is just not sure. (p130:4-12.) There are no
studies anywhere
in the world that would even suggest that urea breaks down with
freeze-thaw
cycles. (p130:17-18.) Chloride would also not change due to a
freeze-thaw
cycle. (p131:12-14.) Creatinine would go up if water content is
unchanged
and go down if there is evaporation. (p131:15-25.)
In comparing urine to vitreous, Dr. Wu concedes that
vitreous is more
reliable. (p134:4-6.)
Dr. Robert Davis and the ESTATE's experts, Drs. Bandt, Coe,
and Ramirez
emphatically state that for postmortem electrolyte analysis for
determining
the degree or presence of dehydration, urine is totally
unreliable.
The urine was placed in a cup, not a tube, because Daerr
extracted 15cc
of urine. It had a screw top cap. It was tested in 1997 at
Wuesthoff,
but by the time it was inspected by the defense in 2000, it had
completely
evaporated, thus indicating it was evaporating all along. No one
looks
to a single urine sample to prove or disprove dehydration. Even
Dr. Robert
Davis states that he did not know why urine was taken, since
vitreous
is the predominant fluid for testing for dehydration. ( Davis
Deposition, p107:5-24 - Exhibit 30.)
1 of problems in urine and part of the problem is you don't This opinion on the lack of reliability of the urine sample is
shared
by all experts for the plaintiff as well as all the literature.
ESTATE's
nephrologist, German Ramirez M.D., commented upon the known
unreliability
of urine (Exhibit 35):
Only the defense places great emphasis on unreliable post
mortem urine,
which was obviously subjected to 13 months of evaporation due to
its container.
Dr. Wu also conceded that postmortem serum is not reliable
to determine
dehydration because it naturally degrades after death. (Wu
Deposition,
p145:11-15 - Exhibit 34.)
He has no hard evidence that the vitreous samples were
contaminated,
he simply says that to him the test results do not make
"biological, pathological,
or clinical sense." (p147:1-2.) He believes the vitreous sample
was spiked.
(p150:8-10.) However, he is not saying that anyone at the
Pinellas medical
examiner's office spiked the sample. (p153:12-16.) Dr. Wu
concedes that
it is not appropriate to compare the vitreous sodium to the
serum sodium
levels because of the Donnan Equilibrium principle. (p157:2-7.)
Dr. Wu agrees that dehydration does increase the
hematocrit and that
an increase in the hematocrit does cause erythrocytosis.
(p163:1-7.) An
increase in urea
"can lead to dehydration and it can lead someone to be
very obtunded,
possibly comatose and unable to respond. We call this a uremic
coma."
(p163:10-13.)
The defense argues that without the presence of ketones,
there can be
no dehydration. Dr. Wu disagrees!
Even on cross examination by FLAG counsel, Dr. Wu said that
the lack
of ketones does not eliminate the likelihood of dehydration. The
lack
of ketones only means no "starvation ketosis." He believes that
the lack
of ketones makes dehydration "less scientifically likely."
(p229:6-12.).
Since Lisa was forced fed protein with a syringe, she did not
burn enough
carbohydrates to create sufficient number of ketones to be
detected by
instruments.
With the continued use of a syringe in an obtunded Lisa
McPherson, the
injection of protein powder and protein shakes would account for
the lack
of starvation ketosis and the increase of urea due to the lack
of "free
water" to perfuse the kidney. Thus severe dehydration results
per the
Estate's experts.
Only severe dehydration will increase chloride to 161. (Wu
Deposition,
p187:11-13 - Exhibit 34.) Evaporation did not increase the urea
to 300.
(p195:1-2.) The specific gravity of vitreous as tested by
Wuesthoff is
not in conflict with the vitreous sodium and chloride levels
indicating
dehydration. (p200.) Looking at the color of urine is not a good
indicator
of dehydration. (p201:1-2.) However, in the samples, osmolality
is a "critical
parameter for looking at dehydration." (p201:8-9.) The vitreous
osmolality
"was consistent with high urea." (p222:12-13.) The Plaintiffs'
experts
agree!
It was known in December 1999, by Drs. Baden and Wu, and
in particular
Dr. Rieders that the Wuesthoff stated specific gravity of the
vitreous
of 1.337 was simply a clerical mistake of reading the wrong side
of the
instrument and that the correct measurement was 1.011 vitreous
specific
gravity. (Wu Deposition, p202:15-16 - Exhibit 34.) Yet, in
January, 2000,
Dr. Rieders writes his report referring to the mistaken number
rather
than the known correct number in formulating his opinion, which
letter
is sent to the medical examiner to influence her decision to
change the
cause of death. This same known clerical mistake of vitreous
specific
gravity is also used in the opinion of Dr. Wecht in his February
2000
report sent to the medical examiner. Another instance of
intellectual
dishonesty by FLAG, not Dr. Wecht, since he also was deceived.
The gas chromatography test at the medical examiner's
office tested
the vitreous for alcohol. As part of that test, one ketone,
acetone, would
be detected if present in sufficient quantity for the test to
detect.
It was not detected. This test does not test for the other
ketones: "acetoacetic
acid, which is a ketone, and beta-hydroxybutyric acid, which is
not a
ketone, but it's considered a ketone body." (Wu Deposition,
p206:5-7 -
Exhibit 34.) Dr Rieders used the "dip stick" method for testing
for vitreous
ketones, volatile acetone, which is a more unreliable test
method than
gas chromatography. (p207.) Dr Wu concedes that since the urine
evaporated
at Wuesthoff, he cannot place any reliance in it or the other
samples.
(p231:10-16.) Yet, only the urine evaporated.
If Lisa was in a prolonged state of dehydration, Dr. Wu
"would expect
that she would be in a state of renal shutdown. That it is --
that the
natural sequella of prerenal azotemia, if it's not corrected in a
reasonably
quick fashion is renal failure." (Wu Deposition, p233:14-17 -
Exhibit
34.) He would expect evidence on the autopsy microscopic slides.
Dr. Fogo's
expertise as a renal pathologist provides opinions of such
objective evidence.
Dr. Wu did not have the benefit of her opinion at the time of
his deposition.
V. THE ESTATE'S EXPERTS' OPINIONS
A. THE OPINION
Make no mistake, the Plaintiff's experts rely on the
global evidence
in rendering their opinions. Dr. Coe, in his article and in his
deposition,
states that the vitreous test is "ancillary" to the rest of the
physical
evidence (Coe deposition, p49:7). The ESTATE's experts opine
that Lisa
McPherson died from severe dehydration which caused pre-renal
azotemia
leading up to renal failure. (Coe, Bandt, Spitz, Ramirez). There
is no
evidence of antemortem pulmonary emboli which occlude enough of
the vascular
bed to cause death. In fact, Plaintiff's pulmonologist, Lawrence
Repsher,
M.D., has opined that all lung clots are postmortem and in small
vessels.
(Repsher Deposition, p38). More importantly, if there was death
due to
pulmonary embolism, there would be dilated right heart chamber
and increased
lung weight, neither of which appear in the written autopsy
protocol,
pictures, or slides. (p114.)
B. THE EXPERTS' OPINIONS AND BASIS
The foremost expert in the world on post mortem
chemistries is John
I. Coe, M.D. He has been recognized as "a universally
acknowledged expert
on the body's chemistry following death." In re Matter of
Sybers,
583 N.W.2d 890 (Iowa S.Ct., 1998) (Exhibit 38). His C.V.
lists 42
articles and 8 textbooks. (Coe Deposition, p418 - Exhibit 36.) A
full
professor of pathology and medical examiner for 30 years, Dr.
Coe has
no equal. (See attached C.V. and his latest deposition excerpt
beginning
at page 414.) More importantly, he has been sited as a reference
in over
130 publications. Even Scientology's expert, Dr. Wecht, has
published
annual reports which included a review article on postmortem
chemistries
by Dr. Coe, who Dr. Wecht recognized as the pioneer in post
mortem chemistry.
There has never been a peer reviewed article that challenges the
validity
of Dr. Coe's work on vitreous being the best reflector of
antemortem serum
values. (Coe Deposition, p421 - Exhibit 36.) Over the years he
has put
on 4 hour workshops on postmortem chemistry analysis for the
annual meetings
of the College of American Pathology and the American Society of
Clinical
Pathology. (p424-428.) He has taught this science not only
nationwide,
but also in Europe.
1 embolus as described in the autopsy and as far as I can Dr. Coe has no problem with the McPherson vitreous aged 57
days or four
years due to his own research. Nor does he have a problem with
the testing
on a Beckman CX-7, an instrument he has used himself. (Coe
Deposition,
p462:21- Exhibit 36.)
1 five years later, but as much as a year later found no Dr. Coe explains why the vitreous is more reliable than any
other postmortem
fluid to determine antemortem serum levels for electrolytes.
Serum chloride
and sodium always go down after death. Dr. Coe sees no reason
why the
defrost cycle of the storage freezer would effect the vitreous
results,
especially the results of key dehydration indicators: sodium and
chloride.
(p464:9-11.) The key in vitreous analysis is to make sure the
sample's
potassium is under 15mmol/L. Lisa's was 13.9 mmol/L in 1996 and
14.8mmol/L
in 1999. This is the first confirming marker that the vitreous
is reliable.
(p425:18-24.) Dr. Coe also had a bio- statistician, Robert
Sherman, PhD.,
review and confirm the statistical basis of the research.
(p429:15-430:16.)
Not only was his research subject to this statistical analysis,
but the
research articles were peered reviewed for accuracy.
(p431:22-432:07).
Here is how Dr. Coe conducted his research which is
relevant to this
case:
1 of the time of dying, and preferably, if you could, get it
Dr. Coe explains another key marker for reliability of this
vitreous
testing: osmolality.
11 Q... is there any 1 same as the osmolality in the spinal fluid.
8 A But on the other hand, since it blended in Dr. Coe also opines that the urine is not reliable.
For this case, Dr. Coe researched his medical examiner cases
where the
cause of death was by dehydration. There was no finding of any
ketones.
(Coe Deposition, p445- Exhibit 36) Ketones were not detected
because:
"They simply were not
burning fat so
fast that it was not able to be metabolized all the way down to
the carbon
dioxide and water....they just didn't need that much for their
metabolism,
is what I think it amounted to. They were at rest, they were
elderly, they
weren't doing things, and they don't -- didn't require many
calories. And
they were able to burn the fat completely, getting the calories
they needed
to keep them alive as long as they stay alive, but then they --
you know,
they died of dehydration finally -- and electrolyte imbalance."
(p446.)
Lisa was at rest due to profound dehydration. She burned few
calories
so no ketones were produced in enough quantities to be measured.
The syringe
injection of substances containing protein also prevented the
production
of ketones and raised the urea.
Calvin Bandt, M.D. ran the clinical laboratory at the
Hennepin County
Medical Center in Minneapolis, where he collected over 6,000
vitreous
samples used by Dr. Coe in his research and peer reviewed
articles. It
is his opinion from day one, along with Dr Coe, that Lisa was
severely
dehydrated, which dehydration caused her to be in an "uremic
coma." This
is not a state of unconsciousness, to which Dr Baden and Dr
Wecht allude.
Rather it is a state of somnolence, of being obtunded or
moribund, as
Dr. Wu, Dr. Coe and Dr. Bandt describe.
15 she would 1 of bacterial growth and dried mucus and so on (Bandt deposition, June 5, 2001 - Exhibit 39.)
Dr. Bandt also relied upon testimony of the attendants and
the logs
that were produced in reaching his opinions. In particular, the
December
1, 1995 log of Janice Johnson, where she writes that Lisa needs 2
liters
of fluids, indicating to Dr. Bandt, that Dr. Johnson was very
concerned
about dehydration. (p661.)
Lawrence Repsher, M.D., pulmonologist and board certified
in critical
care, opined that there is no physical evidence in the written
autopsy,
pictures, or slides that Lisa died from a pulmonary embolism. It
is inconceivable
that the bruise on Lisa's left lower thigh, only 2-7 days old,
could cause
trauma to the popliteal vein. (Repsher Deposition, p233 -
Exhibit 37.)
Thrombi, which break off and cause emboli, can be antemortem or
postmortem.
(p123.) The primary lack of physical evidence is explained as
(Repsher deposition.)
There is no damage to the right heart chamber and the
lungs are light
and of equal weight. Therefore there cannot be death due to
pulmonary
embolism. The only cause of death is severe dehydration. Daerr
took autopsy
pictures during the autopsy at the direction of Dr. Davis. An
autopsy
picture, Picture #31, shows neck organs. Dr. Davis wanted that
picture
to show the hemorrhage, but this picture does not show a
pulmonary embolism.
(Daerr Deposition, p196:1-2 - Exhibit 22.)
Dr. Bandt concludes that the cause of death is pre-renal
azotemia caused
by severe dehydration. (Bandt deposition, p 663 - Exhibit 39.)
The azotemia,
(high nitrogen in the blood), itself does not cause death, it is
simply
a marker of severe dehydration. (p664.) Pulmonary emboli may
have contributed
to it. (p664.) Therefore, he would state the manner of death as
"probable
pulmonary embolus due to severe dehydration and medical neglect"
if there
is evidence of an occluding antemortem clot. (p666:1-2.) The
severe dehydration
would cause electrolyte imbalance and erythrocytosis. (p667.) He
would
expect to see acute tubular necrosis of the kidneys under
microscope,
since dehydration damages the cells not the organs. (p667.) As
the electrolytes
build up because the increased urea is not excreted and the
kidneys are
not being properly perfused, sodium, potassium, chloride, the
acid base
balance increases to the point of "uremic coma." "They start
accumulating
acids because they are not excreting the excess acids that the
body produces."
(p670.) The uremia produces a foul odor in the breath (p673),
which attendant
Von Grundelle described smelling on November 22, 1995. Paul
Greenwood,
Scientology executive, also told the police that he smelled a
foul odor
when he entered Lisa's room on December 5, 1995, to take her to
the hospital.
(See Flag's Exhibit No. 2, p4, of the Police Investigative
Report). Although
Dr. Bandt has diagnosed many deaths by dehydration, he has never
seen
"uremic frost", a white substance produced through perspiration
of urea,
if the person continues to sweat. (pp673-674.) He has seen many
instances
of babies dying from dehydration and the mothers claiming the
babies were
urinating when in fact it was watery diarrhea, common in cases
of dehydration.
(pp679-680.) Even with the Boykin report of 12/1/95 stating that
Lisa
urinated five times in the past 24 hours does not negate the
diagnosis
of prerenal azotemia. (p683.) Dr. Bandt found no errors in the
way the
vitreous was collected, stored, transferred, or tested. (p696,
p749, p750.)
Lisa's dehydration was progressive to the point of 4-6
days before death
she lost 12-20% of her body weight in water. (p704.) Normal
water intake
per day is around 1,500ml with urine output of 600-800ml per
day. (p706.)
Acute tubular necrosis, ATN, occurs when there is acute renal
failure
or during the normal dying process. Dr. Bandt was not able to
determine
if the tubular necrosis he saw microscopically was ATN or the
result of
the normal dying process. We do know from Dr. Fogo's review that
she did
not see ATN, but she definitely saw evidence of high protein
intake, dehydration,
or both. Dr Bandt did not believe that Lisa had ischemic renal
failure.
(p708:4-5.) On the day she died, Lisa was in the late stages of
prerenal
azotemia and renal failure, suffering from uremia, all from
dehydration.
(p709.) Prerenal azotemia is a form of renal failure. At the
very end
of her life, she probably was an ischemic, in the late stage of
renal
failure. (p711, p846.) At the time of death and shortly before,
Lisa was
no longer oliguric, (putting out small amounts of urine), but
rather anuric,
(putting out no urine at all.) (p718.) Contrary to the defense
argument,
no one states that Lisa's kidneys were shut down for ten days.
Dr. Bandt
states that they were not functioning very well. (P. 452:11).
Sodium and
potassium and chloride can be stable for years in an
unrefrigerated state.
(p726.)
Based on the chemistries and the autopsy results, Dr.
Bandt believes
that the attendants' testimony is "pure fantasy." (pp767-768.)
Dr. Bandt
has been previously qualified as an expert witness to testify on
cause
of death based on vitreous chemistries, but not strictly
electrolytes.
(p782.) Dr. Bandt, similar to the pulmonologist, Lawrence
Repsher M.D.,
could not find any evidence of a blood clot in the lung in the
major artery.
12 Q. And what is it from those slides you (Bandt Deposition - Exhibit 39.)
The clots were not attached to any vessel nor totally
occluding. (p816:21-22.)
Therefore, these clots would not result in death. Dr. Bandt also
explained
that there is no trauma in the popliteal vein.
1 body's microphages. The lack of evidence of death by pulmonary embolism simply
confirms
again that death was due to severe dehydration.
VI. THE SUPPORT OF THE SCIENTIFIC PUBLICATIONS
Not only do the many articles relied upon by the defense
support the
science of the Plaintiff's experts on cause of death and the
reliability
and use of vitreous, but there are more to be separately filed.
Let's
look at the defense exhibits.
A. DEFENSE Exhibits
On page 1635 of Exhibit 14, the article states that
embolism develops
particularly after "lengthy convalescence involving bed rest."
This is
also conceded by Robert Davis in both of his affidavits. What
caused the
bed rest? The only evidence as to a cause of Lisa's extensive
bed rest
is the profound dehydration caused by the recklessness of FLAG's
attendants
to insure she was adequately hydrated. There were two
physicians, at least
one had been previously licensed, who knew she was inadequately
hydrated.
Janice Johnson wrote on the December 1, 1995 log that Lisa
needed a quart
of fluids at 1:00 a.m. and then came back at 9:00 a.m. and said
she needed
2 liters of fluid as soon as she awoke. Johnson had just sedated
her with
a strong muscle relaxant of prescription magnesium chloride
followed by
5 capsules of prescription sedative, chloral hydrate!
In FLAG's Exhibit 16, Dr Bernard Knight refers to Dr. John
Coe as the
authority who is "best known in forensic pathology and his
writings should
be consulted for detailed information" on post-mortem chemistry.
Dr. Knight
comments on the reliability of vitreous humor as follows:
Some substances are more stable, however, and when results
are carefully
interpreted, considerable information can be obtained. Urea and
creatinine
are stable post-mortem, with little variation even up to 100
hours after
death, so the diagnosis of antemortem nitrogen retention is
quite reliable.
(At page 92.)
Dr. Knight, an authority relied upon by FLAG, cites to Dr.
John Coe
six times in his section on vitreous use and demonstrates that
vitreous
humor is reliable even if it is extracted 100 hours after
death.
Lisa's vitreous was extracted 13 hours after death if we believe
the story
of the attendants as to the time of death. Further, what Dr.
Knight is
referring to when he speaks of unreliable vitreous testing are
substances
that are not considered to help diagnose dehydration.
Dehydration is diagnosed
by examining the levels of elements such as urea nitrogen,
sodium, and
chloride. Dr. Knight states that these elements are very stable
in the
vitreous. That is why forensic pathologists test vitreous when
dehydration
is suspected. Postmortem urine and serum are not considered.
At page 93, found at FLAG's Exhibit 29, Dr. Knight states
that vitreous
is preferred over postmortem blood for chemical analyses. As
stated by
Dr. Coe, Dr. Knight agrees that if the vitreous potassium is
less than
15 mmol/l, then the vitreous sodium and chloride are reliable
for testing
electrolytes. Lisa's vitreous potassium was under 15mmol/l! Dr.
Knight
concludes that if the vitreous sodium is greater than 155,
(Lisa's
was 180), and the chloride is greater than 135, (Lisa's was
161), and
the urea is greater than 40, (Lisa's was 300), then this is
a "
reliable indication of antemortem DEHYDRATION. " (Emphasis
added.)
(At page 93.) Note there is no upper limit stated.
FLAG's Exhibit 21, the
St. Petersburg
Times article of March 9, 1997, correctly represents
Dr. John
Coe as the " worldwide expert on post-mortem chemistry
." In
addition to Dr. Coe, the Times sent the full autopsy
report with
the vitreous results of 2-01-96 to four other forensic
pathologists. Dr.
Ed Friedlander, the Chairman of the Pathology Department at the
University
of Health Sciences in Kansas City, Mo., is quoted as saying that
the attendants,
"even a lay person who was caring for her, has a lot of
explaining to
do." Dr. Friedlander did not express doubts about the vitreous
testing.
Rather he expressed doubts as to the veracity of the version of
events
by Scientology, who alleged that Lisa suddenly fell ill on the
last day
of her life. We now know this was false.
Also quoted is Dr. Ed Wilson, Deputy Medical Examiner of
the state of
Oregon and who sits on the Board of Directors of the National
Association
of Medical Examiners. In responding to FLAG's version of Lisa's
death,
Dr. Wilson said: "That's really hard to buy." All five
pathologists contacted
by the Times agreed with Dr. Wood's opinion that Lisa
was severely
dehydrated.
There has not been any change in either Dr. Wood's opinion
on severe
dehydration or the written physical findings at autopsy of
evidence of
dehydration, including that of Dr. Robert Davis in the
Scientology procured
affidavits, of sunken eyes and lack of fluid in the chest and
abdominal
cavities, confirmed by repeated vitreous testings.
Being the conservative and world renowned expert on
post-mortem chemistries,
Dr. Coe is quoted in the Times as saying with those
high levels
in the vitreous, the vitreous should be rechecked and it was.
Dr. Coe
is then quoted as saying:
The readings (of vitreous) indicate McPherson did not get
enough water
and suffered severe dehydration. The high nitrogen and chloride
readings
also point to dehydration. She was not getting fluids and
adequate medical
help.
Dr. Don Reay, Chief Medical Examiner in Seattle since
1975, opines that
the high level of vitreous creatinine indicates that the kidneys
could
have shut down. Dr. Reay also agreed with Dr. Wood that the
vitreous result
would support the opinion that this level of dehydration would
indicate
that Lisa was not receiving water for 5 to 10 days and being
unconscious
for up to 48 hours. Dr. Reay also opined that the absence of
fluids can
thicken the blood, which promotes clotting. This is known as an
increase
in blood viscosity leading to clotting. Not one doctor in this
case disagrees
with this well established medical science.
Dr. Michael Graham, Chief Medical Examiner of St. Louis
since 1989 and
secretary/treasurer of the National Association of Medical
Examiners opined
that the vitreous indicated she was dehydrated. More
importantly, he said
that though it is rare, he has seen this high levels of sodium
in fatalities.
The urea nitrogen levels were "out of whack," just as Dr Bandt
and Dr.
Coe have said in deposition in this case. However, what Dr.
Graham did
not know is that the attendants were orally administering with a
syringe
continuous protein powder and little "free water" which resulted
in the
high levels of urea, which further results in kidney failure per
Dr. Coe
and Dr. Bandt.
All of the pathologists contacted by the Times
opined as did
Dr. Wood that Lisa's death was not sudden. This is of course
contrary
to the testimony of the attendants. Even the corporate counsel
for FLAG,
Elliott Abelson, is quoted in the article as saying: "We never
said she
appeared fine" in the days leading up to her death, which
confirms the
testimony of Petzold, Boykin, and Johnson, but is contrary to
Arrunada's
testimony.
As the ESTATE'S experts conclude, Dr. Wilson stated in the
article that
"There should have been enough warnings that she should have
been taken
for medical care."
FLAG'S Exhibit 28, is an article written by Vincent J.
DiMaio, M.D.
and Dominick DiMaio, M.D. They rely in part on Dr. John Coe as
the authority
on vitreous. (Page 36.) On page 481, Doctors DiMaio state:
"Next to blood, the most important tissue for toxicological
purposes
is vitreous. In some ways, vitreous has an advantage over
blood
in that, caused by its acellular nature and relative
isolation,
it is less susceptible to biochemical changes and
contamination.
Because of this, valid electrolyte studies can be done on the
vitreous
that cannot be performed on the blood. . . . Analysis of
postmortem
blood for concentrations of sodium, potassium, and chloride
give erroneous
results. . . .Thus, one cannot use postmortem blood to
accurately determine
an individual's electrolyte status immediately prior to death.
Fortunately,
electrolyte abnormalities in living individuals are often
reflected
in the vitreous. Because vitreous levels of sodium and
chloride are
valid, this makes diagnosis of ANTEMORTEM ELECTROLYTE
IMBALANCES
POSSIBLE. (Emphasis added!)
"Because of the work of Dr. John Coe, the importance of
vitreous as
an agent in postmortem chemistry has been realized." Id. at
483.
"POSTMORTEM DIAGNOSIS OF DEATH CAUSED BY ELECTROLYTE
IMBALANCE DEPENDS
ON ANALYSIS OF THE VITREOUS FOR SODIUM, CHLORIDE, AND UREA
NITROGEN."
Id., at 483. Please note the Doctors DiMaio never, never, never mention the
use of
a grab specimen of post-mortem urine in considering electrolyte
imbalance.
As do the ESTATE'S experts, Doctors DiMaio reject the use of
postmortem
serum electrolytes to determine antemortem electrolyte
imbalance. They
also report that diarrhea is a cause of dehydration in infants,
not an
indicator of hydration as stated by the defense experts. (Page
484.)
The glaring results of the Times ' interview of
these pathologists
from major metropolitan areas is that not one questioned the
vitreous
results. Not one stated that vitreous could not be used as the
basis of
an opinion on diagnosis or causation. even though they knew from
the autopsy
date of 12-06-95 and the Wuesthoff Hospital Laboratory test
report of
2-01-096 that the vitreous was tested 57 days after autopsy and
extracted
13 hours after the historical death.
FLAG's Exhibit 35, a memo to Ben Shaw from FLAG'S expert,
J. Sebag,
M.D., makes reference to his personal studies of vitreous. It in
and of
itself is of no significance since it has no reference to any
research
per acceptable scientific methods, nor does it state what was
being tested
and for what purposes. It is simply a self-serving letter.
Further, his
writings concern living patients with eye disorders. He is not a
forensic
pathologists who routinely diagnoses causes of death. Dr. Sebag
is an
Ophthalmologist!
FLAG's Exhibit 36, a very short article by Alan McNeil
Ph.D., and others
from Auckland, New Zealand, cites John Coe three times and
opines that
"the concentrations of sodium, urea, and creatinine in the
vitreous humor
change little over time, which means that it is possible to use
these
specimens to make postmortem diagnoses of RENAL FAILURE,
SEVERE DEHYDRATION...
" (Emphasis added.) McNeil simply proposes a new method of
heating
to enhance the readings of these components.
FLAG's Exhibit 37, an e-mail from ARUP, and Exhibit 40, a
letter from
ARUP to Lee Fugate, counsel for FLAG, simply state that vitreous
is too
viscous to test "without dilution." Wuesthoff Hospital
Laboratory knew
this and diluted the vitreous 10 to one, the same thing Dr. Wu
and Dr.
Bandt did at St. Anthony's Hospital. ARUP also admitted that
vitreous
testing is not their specialty. (Exhibit 40.)
FLAG's Exhibit 51, an article by W.J. Jenkins, in 1952
opined that CSF
urea is reliable guide for antemortem urea values, since
pre-agonal and
postmortem changes are very small. (Page113.)
FLAG's Exhibit 53, an article by Frederick A. Jaffe in
1962 concluded
his research and opined that "for the purpose of electrolyte
determinations
the fluid (vitreous) can be kept for long periods of time
provided evaporation
is prevented." (Page 235.)
FLAG's Exhibit 55, an article by Walter W. Jetter, M.D.,
confirmed that
blood sodium and chloride fall after death. (Page 335.)
FLAG's Exhibit 58, is an article by William Sturner, M.D.,
an expert
for FLAG, who FLAG has withdrawn from this case. He is similarly
qualified
to discuss the general acceptance of the vitreous testing more
so than
any other expert that FLAG has put forth since he has researched
vitreous
as a forensic pathologist similar to Dr. John Coe. Yet FLAG has
withdrawn
him. The only inference to be drawn from this withdrawal is that
Dr. Sturner
would not attack the general acceptance of the research and
opinions of
Dr. Coe nor would he say that this science, forming the basis of
Dr. Coe's
and Dr. Bandt's opinions are novel. Dr. Sturner also cites to
Dr. Coe
as a reference authority on vitreous.
FLAG's Exhibit 61 is an article by John Fekete, M.D., in
1965, where
he researched 160 postmortem collections of blood and CSF. He
concluded
that postmortem blood urea nitrogen was stable.
"THEY (UREA) WERE WELL WITHIN NORMAL LIMITS IN PREVIOUSLY
HEALTHY
PERSONS WHO DIED SUDDEN ACCIDENTAL DEATHS. POSTMORTEM BLOOD
UREA NITROGEN
VALUES HIGHER THAN 100 MG. % ALWAYS INDICATED RENAL OR
EXTRARENAL
UREMIA. " (Page 973 -emphasis added).
Lisa's serum and vitreous urea nitrogen in 1999 was
355mg/dl and the
CSF urea nitrogen in 2001 was 358mg/dl, thus indicating renal
failure
or extrarenal uremia.
FLAG'S Exhibit 62 is an article by Vincent DiMaio, M.D.,
who references
Dr. John Coe, M.D. 6 times and William Sturner, M.D. once. He
writes that
"Vitreous humor (as opposed to serum)...has been accepted as
being of
use because of the ease with which the fluid can be obtained and
the
low risk of contamination. (p244, September 2001 of the
American
Journal of Forensic Medicine and Pathology, Vincent J.
DiMaio, M.D.,
EDITOR-IN-CHIEF.)
FLAG's Exhibit 67 is a guide to specimen collection in
live patients.
FLAG's Exhibit 68 is the article by F.V. Sander, 1923,
first opined
that "samples of human blood can be preserved for 5 to 6 days,
and the
values for non-protein nitrogen, urea, uric acid, creatinine,
creatine,
and sugar will have the same clinical significance as those
values
obtained by an immediate analysis of the blood. The
urea...creatinine...of
blood can be kept constant for at least 2 weeks (Page 15.)
FLAG'S Exhibit 71 is a letter from Frederic Rieders,
Ph.D., retained
by FLAG. His intellectual honesty is in serious doubt since he
conducted
improper testing of the vitreous and blood in November, 1999, by
using
different testing methods as Dr Coe warned against as early as
1972. Thus,
Dr Rieders wasted the samples. FLAG's chemical expert, Dr. Wu,
advised
Mr. Fugate to disregard this improper testing when they met with
Dr. Michael
Baden, M.D., in New York near Christmas of 1999. Yet Dr. Rieders
writes
his report in January of 2000, Exhibit 71, knowing that his
testing was
improper and that the only specimen he relies upon, the urine,
is not
a substance relied upon by experts in the published works who
determine
dehydration in postmortem vitreous, the only reliable substance
to test.
Further, the urine of Lisa was the only substance stored in a
cup with
a screw cap, with huge head space, which permitted continued
evaporation
for over a year after her death, thus resulting in obvious false
readings.
Dr. Rieders does not list one publication in vitreous nor is he
cited
once by any journal article on determining dehydration or the
reliability
of vitreous to determine antemortem values.
FLAG'S Exhibit 72 is the ARUP's guide to collection and
testing of specimens
in a clinical setting, i.e., testing on live people. It states
that urea
nitrogen is stable at ambient temperature for 24 hours, 3 days
if refrigerated,
and 6 months if frozen. Lisa's sample was refrigerated within 10
minutes
of extraction per the person who extracted it, Greg Daerr, who
then refrigerated
it in his autopsy refrigerator, which was then collected by the
toxicology
lab and refrigerated for two more days per Kirk Grates of the
Toxicology
department of the Pinellas Medical Examiner's office, who then
froze it
on December 8, 1995, until a part of it was thawed and sent to
Wuesthoff
for testing on January 29, 1996. Every Friday per his routine,
which would
be 12-8-95, Grates clears out the tox refrigerator and places
all samples
in the tox freezer. FLAG's Exhibit 77, Grates at 233:2-4. (See
also FLAG's
Exhibit 75, Memo of Chief Investigator, Larry Bedore.) Thus,
this procedure
even met the ARUP guidelines!
FLAG's Exhibit 80 is a letter from Dr. Bandt of 12/13/99
reporting on
the two tests of serum and vitreous in November and December of
1999.
He states that the osmolality of 509 represents severe
dehydration, since
anything above 300 is considered dehydration.
FLAG's Exhibits 82 to 91 are different references to
shipping specimens
of fluids. Ex. 91, ARUP, states that shipping in glass tubes
should be
avoided. Lisa's was shipped in plastic tubes. The samples of
vitreous
sent to Wuesthoff were put in a plastic tube in between
styrofoam in a
box and delivered by Airborne the next day. The sample was cold
since
it had come out of the glass storage tube just as it thawed. The
styrofoam
kept it cold. No one has said that in this case the extraction,
labeling
of the tubes, refrigerating, freezing, extracting a thawed
sample in a
plastic shipping tube, overnighting to Wuesthoff, and the
testing by Wuesthoff
or St. Anthony's or Orlando Regional Medical Center were wrong.
Only Dr.
Wu said the Sears refrigerator used by the medical examiner,
which had
a defrost cycle, "might" effect the vitreous reliability.
However, he
could not site to any journal article which would support his
speculation.
What cements the consistency of the samples is the osmolality.
Therefore
there is no evidence of questionable test results.
"...sodium, potassium, and chloride and urea are... very
stable..("for
years")...need not be refrigerated..." (Bandt 6-5-01 Deposition, Volume 5, pp726-727.)
FLAG's Exhibit 112 are letters from internal medicine
physicians who
opine that dehydration is not a risk factor for thrombus.
However, they
certainly concede that immobilization and stasis are risk
factors for
development of thrombus. For example, see letters of Dr.
Berkman, Dr.
Cohen, and Dr. Levin. However, Dr. Goldberg did in fact find
reports of
dehydration was a major contributing factor to thrombus
formation. In
the deposition of FLAG'S experts, they also conceded that (1),
dehydration
can cause stupor; (2), stupor can cause immobility; and (3),
immobility
can cause thrombus.
FLAG'S Exhibit 115 is Wintrobe's Clinical Hematology
, 9
TH Edition, 1993. There it states that dehydration from
any cause
results in "relative erythrocytosis," which is an "increase in
the total
number of red cells in the body as a result of... "loss of blood
plasma."
page 1245. This happens when there is "lower fluid intake,
marked loss
of body water, or both..." (Page 1249.) This is exactly the
testimony
of Dr. Bandt. The text then goes on to say that some symptoms
may include
"diminished mental capacity." (Page 1251.) In other words,
stupor. Relative
erythrocytosis is reported to cause thromboembolic disease. See
page 201
of FLAG's Exhibit 116.
FLAG's expert, Cyril Wecht, M.D. (Exhibit 40):
1 some stasis more related probably to the 18 Q. Is deep vein thrombosis a complication of 1 lying around immobilized, there would be an 25 A. Well, coma is the unconscious state caused
1 by uremia and uremia is a buildup of the nitrogenous
FLAG's Exhibit 117 is a reported case of a high school
wrestler in JAMA,
(JOURNAL of the AMERICAN MEDICAL ASSOCIATION, February 23,
1979.) There
the author stated:
"Rapid weight loss through dehydration...(results in)
[S]everal important
physiological changes....decrease in muscle strength, plasma
volume,
cardiac output, renal blood flow, and other body
functions...loss of
12% of his body weight (in one week)...rapid decrease in
plasma volume
that could be expressed as an increase in blood viscosity." This article stated that this was just one of many reporting
the same
problem with wrestlers dehydrating themselves to lose weight.
These prove
the medical opinion expressed by Dr. Coe and Dr. Bandt as to the
cause
of Lisa's popliteal thrombus and resulting pulmonary emboli
postmortem:
severe dehydration.
It also confirms weight loss due to dehydration. Here the
wrestler lost
12% in one week. Dr. Bandt stated that Lisa lost up to 25% water
body
weight from her two weeks or more of lack of proper hydration.
VII.
CONCLUSION
For the reasons above, the motion should be denied and
attorney fees
and costs incurred.
VIII. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been
furnished by hand-delivery this 28 th day of
November, 2001,
to the attached Service List.
____________________________________
KENNAN G. DANDAR, ESQ. The Defemdants experts are Alan Wu, PhD., a chemist who
runs a toxicology
lab for Hartford Hospital; Michael Baden, M.D. forensic
pathologist for
the New York State Police; and Cyril Wecht, M.D., forensic
pathologist
and coroner for Allegheny County, Pittsburgh, Pa.
There is no mention of trauma to the popliteal vein in
either the written
autopsy protocol nor in the deposition testimony of its author,
Robert
Davis, M.D.
Coe Deposition at p461:13. |
Scanning and proofreading by Deana Holmes -- HTML-ized by Rod Keller
Life and Death of Lisa McPherson