Full Statute Name: West's Florida Statutes Annotated. Title XLV. Torts (Chapters 766-774). Chapter 773. Equine Activities.
This Florida statute provides that an equine activity sponsor, an equine professional, or any other person shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities. Liability will not be limited by statute, however, where the equine professional or sponsor knew the tack or equipment was faulty, failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, owns or is otherwise in lawful possession of the land or facilities where the injury is attributable to a known dangerous latent condition, commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, or intentionally injures the participant. Posting of warning signs alerting participants to the limitation of liability by law is also required.
(1) "Engages in an equine activity" means riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or any person assisting a participant or show management. The term "engages in an equine activity" does not include being a spectator at an equine activity, except in cases where a spectator places himself or herself in an unauthorized area.
(2) "Equine" means a horse, pony, mule, or donkey.
(a) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting.
(b) Equine training or teaching activities or both.
(c) Boarding, including normal daily care of an equine.
(d) Riding, inspecting, or evaluating an equine belonging to another by a purchaser or an agent, whether or not the owner has received monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser to ride, inspect, or evaluate it.
(e) Rides, trips, hunts, or other equine activities of any type, no matter how informal or impromptu, that are sponsored by an equine activity sponsor.
(f) Placing or replacing horseshoes or hoof trimming on an equine.
(g) Providing or assisting in veterinary treatment.
(4) "Equine activity sponsor" means an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to: pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs, and activities, therapeutic riding programs, stable and farm owners and operators, instructors, and promoters of equine facilities, including, but not limited to, farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held.
(a) The propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them.
(b) The unpredictability of an equine's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals.
(c) Certain hazards such as surface and subsurface conditions.
(d) Collisions with other equines or objects.
(7) "Participant" means any person, whether amateur or professional, who engages in or any equine that participates in an equine activity, whether or not a fee is paid to participate in the equine activity.
Laws 1993, c. 93-169, § 88. Amended by Laws 1997, c. 97-102, § 1182, eff. July 1, 1997; Laws 2000, c. 2000-354, § 29, eff. July 1, 2000.
Except as provided in s. 773.03, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in s. 773.03, no participant nor any participant's representative shall have any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.
Laws 1993, c. 93-169, § 89. Amended by Laws 1999, c. 99-3, § 93, eff. June 29, 1999.
(1) This section applies to the horseracing industry as defined in chapter 550.
Laws 1993, c. 93-169, § 90. Amended by Laws 1997, c. 97-102, § 1183, eff. July 1, 1997; Laws 2000, c. 2000-354, § 30, eff. July 1, 2000.
(a) Post and maintain one or more signs which contain the warning notice specified in subsection (2). These signs shall be placed in a clearly visible location near to where the equine activity begins. The warning notice specified in subsection (2) shall appear on the sign in black letters, with each letter to be a minimum of 1 inch in height, with sufficient color contrast to be clearly distinguishable.
(b) Give the participant a written document which the participant shall sign with the warning notice specified in subsection (2) clearly printed on it. Said written document may be used in lieu of posting the warning on the site of the equine activity sponsor's or equine professional's facility, and shall be given to any participant in an equine event not on the location of the equine activity sponsor's or equine professional's facility.
Laws 1993, c. 93-169, § 91.
Nothing in ss. 773.01-773.05 shall be construed to limit in any way the limitation of liability granted to private citizens who allow the public to use their land for recreational purposes, as provided in s. 375.251.
Laws 1993, c. 93-169, § 92. Amended by Laws 1999, c. 99-3, § 94, eff. June 29, 1999.
(1) As used in this section, the term “equine” has the same meaning as provided in s. 773.01.
(c) Any other publicly owned or controlled property.
(3) A trainer, instructor, supervisor, or other person may not knowingly rent or lease an equine to be ridden by a child younger than 16 years of age unless the child possesses a helmet meeting the requirements of this section or the trainer, instructor, supervisor, or other person renting or leasing the equine supplies the child with a helmet meeting the standards of this section.
(4) A parent or guardian of a child younger than 16 years of age may not authorize or knowingly permit the child to violate this section.
(5) A person who violates subsection (3) or subsection (4) commits a noncriminal violation, punishable as provided in s. 775.083.
(c) Engaged in an agricultural practice or pursuit.
Added by Laws 2009, c. 2009-105, § 3, eff. Oct. 1, 2009.


Furthermore, Appellants correctly argue the Examiner’s reliance on routine optimization is improper. Modifications that would have been known to a person of ordinary skill are irrelevant to whether a reference anticipates a claim under 35 U.S.C. § 102. Titanium Metals Corp. v. Banner, 778 F.2d 775, 780 (Fed. Cir. 1985) (“[A]nticipation under § 102 can be found only when the reference discloses exactly what is claimed and that where there are differences between the reference disclosure and the claim, the rejection must be based on § 103 which takes differences into account.”) Still further, even under 35 U.S.C. § 103(a), the failure to provide sufficient evidence “that one skilled in the art would necessarily have appreciated the advantageous effects of providing a nitride insulating film in a semiconductor device within the claimed range” (App. Br. 13) renders a rejection based on obviousness improper.
1713 Ex Parte Palaniswamy 13882068 - (D) KRATZ 103 3M INNOVATIVE PROPERTIES COMPANY DUCLAIR, STEPHANIE P.
Without any explanation as to how or why the references would be combined to arrive at the claimed invention, we are left with only hindsight bias that KSR warns against. . .[,] we cannot allow hindsight bias to be the thread that stitches together prior art patches into something that is the claimed invention.
Furthermore, for most of the claims, we are not persuaded that Appellants’ evidence of allegedly unexpected results rebuts this prima facie case of obviousness. To support a contention of nonobviousness, evidence of unexpected results must be commensurate in scope with the claims. In re Grasselli, 713 F.2d 731, 741 (Fed. Cir. 1983) (Where rebuttal evidence compared catalysts containing sodium to prior art, court held evidence insufficient to rebut prima facie case of obviousness because experiments limited to sodium were not commensurate in scope with claims, which were directed to certain catalysts containing an alkali metal.). The requirement that the evidence be commensurate in scope with the claimed invention must be applied on a claim-by-claim basis. See MeadWestVaco Corp. v. Rexam Beauty and Closures, Inc., 731 F.3d 1258, 1264—65 (Fed. Cir. 2013) (noting district court erred by failing to treat broader claims differently than narrower claims when considering objective evidence of non-obviousness).
Claim 16 — This claim recites a “plurality of connections between [the] third sheet and [the] fourth sheet. . . whereby [the] third sheet is constrained to expand . . . from [the] fourth sheet.” Appellants argue that the plurality of connections are not shown in the art and that the whereby clause must be considered. App. Br. 26-27. The Examiner argues that the whereby clause is functional language that does not define any structure and thus does not distinguish over the prior art, citing to In re Mason, 244 F.2d 733 (CCPA 1957). Ans. 10. We disagree with the Examiner’s claim interpretation. Claim 16 positively recites a plurality of connections and further recites that the connections are distributed so that the third sheet expands a limited distance from the fourth sheet when the chamber is inflated. The Examiner has failed to provide an adequate showing of where this structural limitation of the plurality of connections is found in either Anderson or Clark. Accordingly, because all of the limitations are not shown to be contained in the references cited, this rejection will not be sustained.


§ 235-5 Procedure for complaint of violation.
§ 235-6 Violations and penalties.
Taxicabs — See Ch. 210.
Towing — See Ch. 217.
Any motor vehicle that is incapable of normal operation which is not located on a premises licensed as a junkyard under a certain ordinance of the Township of Mullica under Chapter 140 of the Code of the Township of Mullica, Atlantic County, New Jersey, entitled "Junkyards."
Includes partnerships and corporations. Masculine gender shall include the feminine and the neuter genders; and the single number shall include the plural number.
No more than one inoperative motor vehicle shall be kept, stored or maintained on any land and premises situate in the Township of Mullica, County of Atlantic and State of New Jersey.
Notwithstanding the provisions of § 235-2 of this chapter, such commercial enterprises as a gas station, an automobile repair shop or a new or used car dealer shall be permitted to store in open storage on said business premises not more than nine inoperable motor vehicles owned by the proprietor of said enterprise which are not in the process of being repaired.
For the purpose of § 235-3 of this chapter, any inoperable motor vehicle not owned by a person operating a business set forth in § 235-3 of this chapter, located on said business premises shall not count against said nine-car limitation. Anyone maintaining that an inoperable motor vehicle which is stored on his premises is not owned by him, shall have the burden of providing ownership by a third party. Any vehicle stored on said premises more than 90 days shall be considered for all purposes of this chapter as owned by the proprietor of the business.
No business qualifying within the provisions of § 235-3 of this chapter shall store more inoperable motor vehicles within the nine-car limitation as hereinabove set forth than one inoperable motor vehicle for every 1,000 square feet of open storage space available on the premises of said business. This section shall not be construed in any way as enlarging said nine-car limitation but shall limit said nine-car limitation for any business qualifying within the provisions of § 235-3 of this chapter which does not have a total of 9,000 square feet of open storage space of the premises.
Any individual desiring to complain of a purported violation of this chapter shall make said complaint in writing to the office of the Township Clerk of the Township of Mullica. Upon said complaint's being made to the Township Clerk, he shall, as soon thereafter as is convenient, notify the Zoning Officer of the complaint and the premises complained of. The Township Clerk shall make an appropriate record of the time and date when the Zoning Officer is so notified. Within seven days after the Zoning Officer is notified of the complaint by the Township Clerk, he shall either serve a notice upon the owner or occupant of the premises to remove the violating vehicle from the premises or shall report in writing to the Township Clerk that he has investigated the premises. The owner or occupant of the premises so served with a notice to remove an inoperable vehicle or vehicles shall have 15 days from the date he is served with said notice to remove the vehicles in violation from the premises. Upon the Zoning Officer's serving said notice upon an alleged violator, he shall, within two days from the date of service, notify the Township Clerk of the time and date said notice was served. Should the violating vehicle or vehicles not be removed before the 16th day after the service of said notice, the Zoning Officer shall immediately file a complaint under this chapter with the Clerk of the Mullica Township Municipal Court.
This chapter shall be enforced by the Zoning Officer of the Township of Mullica, and said Zoning Officer shall be the complainant of all complaints made under this chapter. Nothing contained within the first subsection of this section shall be construed to prohibit or impair in any way the right of the Zoning Officer to make a complaint under this chapter on his own initiative. In any proceeding brought by the Zoning Officer in cases other than those initiated through an individual complaint, the Zoning Officer shall, upon becoming aware of the violation, immediately serve a notice upon the owner or occupant of the premises to remove the violating vehicle or vehicles from the premises. The owner or occupant of the premises so served with a notice to remove an inoperable vehicle or vehicles shall have 15 days from the date he is served with said notice to remove the vehicle or vehicles in violation from said premises. Should the violating vehicle or vehicles not be removed before the 16th day after the service of said notice, the Zoning Officer shall immediately file a compliant under this chapter with the Clerk of the Township of Mullica Municipal Court.
Any person violating or failing to comply with any of the provisions of this chapter shall, upon conviction thereof, be subject to the payment of a fine not exceeding $200 or to imprisonment for a period not exceeding 90 days or not more than 30 days' community service, provided that the court shall have the power, in its discretion, to impose a sentence of both fine, community service and imprisonment not exceeding the maximum limits herein fixed. Each succeeding violation shall be construed to be a new violation.


text:
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.
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.
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.
- 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.
19 contributed to pulmonary embolism.
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.
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.
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).
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.
6 balance contributed or caused her death in any way.
8 of spinal fluid findings, in my opinion.
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.
6 was taken into -- from the body.
1 make a diagnosis of death due to dehydration.
However, Dr. Baden concedes as he must that vitreous is the best fluid to correctly reflect antemortem conditions.
6 is. Spinal fluid is somewhere in between.
9 itself to make that diagnosis.
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.
2. Charles S. Hirsch, M.D., Chief Medical Examiner, Dept. of Health, Office of Chief Medical Examiner, New York, N.Y.
11. Vernard I. Adams, M.D., Chief Medical Examiner Hillsborough County, Tampa, FL.
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.
"the tests in question were sufficiently reliable to justify their admission."
When determining whether to admit expert testimony about a new scientific theory, courts in Florida employ a four-step process. Once a court discerns that expert testimony would assist the jury, a point not contested in this appeal, it must then conduct a Frye hearing to "decide whether the expert's testimony is based on a scientific principle or discovery that is 'sufficiently established to have gained general acceptance in the particular field in which it belongs.' " Ramirez v. State , 651 So.2d 1164, 1167 (Fla.1995) (quoting Frye ). In order to make this determination, the court should generally conduct an evidentiary hearing. As the Ramirez court noted, "a hearing on the admissibility of novel scientific evidence is an adversarial proceeding in which conflicting evidence is presented to the trial judge as the trier of fact." Id. at 1168; see also Brim v. State , 779 So.2d 427, 434 (Fla. 2d DCA 2000) (" Brim II ") (explaining that "a trial judge involved in a Frye hearing must listen to the scientific evidence and resolve any disputed question of fact using the same method employed in any other nonjury hearing."); but see U.S. Sugar Corp. v. Henson , 26 Fla. L. Weekly D1062 (Fla. 1st DCA Apr. 20, 2001) (remarking that Ramirez does not mandate an evidentiary hearing on Frye issues).
Because our record indicates there is some debate in the scientific community about whether repetitive motion can cause carpal tunnel syndrome, we point out that the circuit court's role is to determine whether the "basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim I , 695 So.2d at 272. However, as the Brim I court went on to observe, this test does not require unanimity in the scientific community.
It is clear that scientific unanimity is not a precondition to a finding of general acceptance in the scientific community. People v. Dalcollo , 282 Ill.App.3d 944, 218 Ill. Dec. 435, 445, 669 N.E.2d 378, 387 (1996). Instead, general acceptance in the scientific community can be established "if use of the technique is supported by a clear majority of the members of that community." People v. Guerra , 37 Cal.3d 385, 208 Cal.Rptr. 162, 183, 690 P.2d 635, 656 (1984). "Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value...." People v. Leahy , 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 678, 882 P.2d 321, 336-37 (1994). Therefore, while a "nose count" is not alone sufficient to establish general acceptance in the scientific community, such acceptance likewise need not be predicated upon a unanimous view.
David v. National Railroad Passenger Corporation , ___So.2d___, 26 Fla. L. Weekly D1996 (Fla 2 nd DCA, Aug. 17, 2001) (Exhibit 8).
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.
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.
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.
4 you know, I gave her the definition of that.
6 about, gave her that and let her evaluate.
10 affirmative, yes, I had.
20 she wrote up a report.
1 privilege I have is what she asked me.
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.
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!
4 And if you could just take a look at this.
6 when she was brought in on December 5th of 1995?
7 A She did not.
9 depicted in that picture?
11 Q And did you notice any blood around her chin?
12 A Dried blood around her mouth.
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.
15 front with you in describing her physical condition?
20 you know, it's shocking.
6 McPherson when you first saw her?
14 Q Describe that for me.
19 Q Did her appearance shock you?
8 Johnson, Okay, bring her up?
13 Q (By Mr. Dandar) Go ahead.
16 A Too far. Too dangerous.
19 you have told her to call 911?
20 A I would have told her to call 911.
22 the whole -- the whole sort of Gestalt picture.
23 Q Did she look to you to be dehydrated?
25 Q Sunken face and eyes?
4 with. And did she look dehydrated, yes.
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.
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 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.
11 this person looks like somebody who came out of Auschwitz.
18 A Yes, that is my opinion.
- Crusted blood is present at the nares.
- 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..
19 internally. All her organs seemed to be very dry.
22 Q. And who said that?
4 conversation with Dr. Davis?
6 case, it looked dry inside.
7 Q. Okay. Now, which organs looked dry?
18 yourself as you sit here today was dry internally.
19 MR. DANDAR: Same objection.
24 dry appearance to them.
1 that would be, what that looks like?
6 pasty look when they are dry.
18 dry, and then the top of the liver.
11 say she was below.
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.
24 feeling. You don't feel an abundance of soft tissue.
5 mandible or jaw bones tend to be prominent.
18 appears dry, that would cross my mind.
14 get into -- go beyond that.
22 as an immediate cause of death.
10 A But, no, I don't think I can.
16 to my having any vitreous results.
1 things, I don't know that I'd put it foremost.
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.
7 tube and then extract vitreous from the other eye.
10 keep it. It's still worth testing.
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 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).
2 probability than not we can conclude that, yes.
5 was when it was tested?
7 sodium concentrations are more stable.
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.
8 it is not as easy to over-interpret vitreous.
11 have to have the context of the person.
Only the defense places great emphasis on unreliable post mortem urine, which was obviously subjected to 13 months of evaporation due to its container.
The defense argues that without the presence of ketones, there can be no dehydration. Dr. Wu disagrees!
25 to satisfy the dehydration, then, yes, it's possible.
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.
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.
14 of being mentally confused, came out 17 days later dead.
19 dehydration was a significant factor.
24 not going to say that it wasn't truly pulmonary embolus.
5 obstruction of that, but at least no more than that.
14 time that it occurs, even though it doesn't involve both.
16 obstruction of the total pulmonary blood flow.
23 Q -- and compared it with a fresh sample?
3 Q Why -- why do you think that is?
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).
23 A We got it as close to dying as possible.
2 even closer than that, and occasionally we could.
Dr. Coe explains another key marker for reliability of this vitreous testing: osmolality.
8 goes, the more severe the dehydration is.
18 nitrogen at 300 too.
1 same as the osmolality in the spinal fluid.
Dr. Coe also opines that the urine is not reliable.
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.
20 is the condition of her mouth.
21 She has extremely poor oral hygiene.
22 You can see crusted material on her teeth.
3 picture of poor oral hygiene.
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.
17 A. Well, these were very small vessels.
15 was a pulmonary embolus?
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.
The lack of evidence of death by pulmonary embolism simply confirms again that death was due to severe dehydration.
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.
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!
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.
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.
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."
"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.
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 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. "
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 67 is a guide to specimen collection in live patients.
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..."
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.
2 immobilization than to the actual chemical changes.
4 stupor and the coma?
2 increased incidence of deep vein thrombosis.
3 Q. Can you give me a layman's term of stupor?
15 a deeper state of unconsciousness.
"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.
For the reasons above, the motion should be denied and attorney fees and costs incurred.
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.
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.

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