Commonwealth v. Read — Trial ArchiveGary Faller — Direct/Cross/Redirect/Recross
229 linesWhereupon, GARREY FALLER, M.D. having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: Whenever you're ready, Mr. Lally.
DIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good afternoon, sir.
DR. FALLER: Good afternoon.
MR. LALLY: Could you please state your name and spell your last name for the record?
DR. FALLER: Garrey Faller, F, as in Frank, A-L-L-E-R.
MR. LALLY: And, sir, that microphone in front of you, you can move that any way you wish. So if you want to bring it up or down, just the wand, itself. And what do you do for work, sir?
DR. FALLER: I'm a pathologist.
MR. LALLY: And where is it that you work?
DR. FALLER: I work at Good Samaritan Medical Center.
MR. LALLY: And how long have you been working as a pathologist at Good Samaritan?
DR. FALLER: Since November of 2015.
MR. LALLY: Now, if I could ask you just a few questions about sort of your educational background, starting with your undergrad. Where did you go to school and what, if anything, did you receive a degree in?
DR. FALLER: My undergraduate education, I went to Tufts University.
JUDGE CANNONE: Doctor, I'm going to ask you to put the microphone perhaps underneath your mouth and speak into it because in order to keep this room cool, we need to have these fans going. If they can't compete with you, we'll have to turn them off. So please speak loudly.
DR. FALLER: How am I now? Okay?
BY MR. LALLY:
MR. LALLY: Perfect.
DR. FALLER: Okay. So Tufts University undergraduate with a degree in biology.
MR. LALLY: And, after you received your degree in biology from Tufts, where did you go from there?
DR. FALLER: I went to Tufts Medical School in Boston for four years.
MR. LALLY: And, after you graduated from medical school, where did you go from there?
DR. FALLER: I went to a residency in pathology, anatomic and clinical pathology, at Tufts Medical Center. So I stayed within the Tufts system.
MR. LALLY: And how long was that residency?
DR. FALLER: That residence, at the time, a pathology residency was five years. It's now four years, I believe; but it's a five-year program. I finished the residency with a chief resident in pathology.
MR. LALLY: And then, following your residency, where did you go for work from there?
DR. FALLER: In 1996, I finished residency, and my first job was at Carney Hospital beginning the end of June of 1996.
MR. LALLY: And how long did you work at the Carney?
DR. FALLER: I am still on medical staff at Carney. So ever since I was transferred to help Good Samaritan Medical Center in 2015. My full-time job is at Good Samaritan now since 2015. But I still cover Carney every now and then.
MR. LALLY: And are you board certified?
DR. FALLER: I am board certified in both anatomic and clinical pathology.
MR. LALLY: Now, you've used that term and just if you could explain to the jury what your understanding of that term is as far as pathology and sort of the difference between anatomic pathology and clinical pathology.
MR. LALLY: Sure. Pathology, there are two subspecialties, I guess, in pathology. One is anatomic pathology, which is basically if you, as a patient, go to a hospital or have a biopsy, a tissue biopsy, or excision or anything like that, it comes to the pathology department. And an anatomic pathologist is responsible for making the diagnosis for that patient. So we abbreviate that as an AP, anatomic pathologist. So in residency, you can also train to become a clinical pathologist. A clinical pathologist is a pathologist who basically deals with -- to put it simply, if you have a blood test, that gets sent to the lab. We are essentially responsible for the quality and the safety of that blood test to help ensure the lab tests that are done on the specimens are accurate.
MR. LALLY: Now, with regard to your position at Good Samaritan, what is it that you do at Good Samaritan? What are sort of your duties and responsibilities in relation to that hospital?
DR. FALLER: I am the chief of pathology at Good Samaritan Medical Center. I'm also the laboratory medical director. So my job at Good Samaritan is to ensure, you know, quality of both the anatomic pathology side of things as well as the clinical pathology side of things. Ultimately, my job is to help ensure that any laboratory report coming from Good Samaritan is accurate.
MR. LALLY: Now, the lab at Good Samaritan where the testing is done, is that accredited?
DR. FALLER: Yes, it is.
MR. LALLY: And can you explain to the jury sort of what that accreditation means, who it's by and sort of what goes into that accreditation process?
DR. FALLER: We are accredited by the College of American Pathologists. We abbreviate that as CAP, if I mention that later, just so you know. And the accreditation process, the CAP, has been in business for 75 years or so. And they, according to their website, are the preeminent accrediting body for medical laboratories. So what that means is every two years we have an in-depth laboratory survey. That's every two years. And there are over maybe 3,000 elements, checklist requirements that the CAP will look at in our lab which ranges from anywhere for quality, quality control, making sure that we have enough staff members. Just about anything that can affect a laboratory result, there is essentially a checklist requirement that we need to fulfill and pass. So that's every two years.
MR. LALLY: And that accreditation, is that up to date as of now?
DR. FALLER: Yes, it is. We will be having another inspection. Our window opens in July. So it's coming up. We have a three-month window where the CAP can come any time unannounced.
MR. LALLY: And was that accreditation up to date prior to January 29th, 2022?
DR. FALLER: Yes.
MR. LALLY: Now, as far as the clinical portion of the lab, what are some of the things that get tested as far as -- what are some of the things that are tested for in the lab as far as blood work is concerned?
DR. FALLER: Many different things. As probably all of you know, when you go to a hospital or you have your blood tested and the physician is looking for different tests such as like sodium or potassium or chloride, some basic tests that if they show abnormality, it could help them, the clinician, make a diagnosis on you. So the most common things would be like a glucose, sodium, potassium chloride. Stuff like that.
MR. LALLY: Now, is there some sort of standard algorithm for things that are tested or does it sort of depend -- dependent on the patient's presentation?
DR. FALLER: I think it depends on the patient's presentation. There is no standard ordering test that one can order. So it depends mainly on what the doctor is thinking in his differential diagnosis. He will order a variety of different tests. Some tests are pretty standard when you go to a hospital. He might order the test that I just talked about, a CBC. They want to look at your complete blood count. So things like that. They want to look at your hemoglobin, hematocrit, maybe, sodium, potassium. Those are some of the really common tests that would get ordered in a hospital.
MR. LALLY: Now, as far as drugs of abuse including alcohol, is that something that's dependent upon the presentation of a patient to your facility?
DR. FALLER: I think an alcohol test or drug of abuse test is not a routine type of order or test. It all depends on if the clinician or primary care physician is suspecting it could be, you know, drugs of abuse or alcohol on board and they need to know if so to help treat the patient.
MR. LALLY: Would that also include sort of a patient that presents in regard to a mental health status ora Section 12, drugs of abuse? Would that be somewhat standard in relation to testing or blood work that's done in relation to that kind of patient?
DR. FALLER: As far as Section 12, I do not know if there is a standing order, a routine ordering process fora patient that is admitted to Good Samaritan under Section 12. So I'm not sure.
MR. LALLY: Would that be abnormal, though, as far as doing a blood-drawn test for alcohol and someone presenting on a Section 12?
DR. FALLER: I don't think so, no.
MR. LALLY: Now, with regard to a blood draw in the Good Samaritan Hospital with reference to testing for alcohol specifically, what, if any, sort of policies or protocols are in place in reference to that type of blood draw?
DR. FALLER: I think a test for blood alcohol, the phlebotomist pretty much has to run through the same protocol that he or she needs to follow for any type of blood test except for the fact that we do not want to use an alcohol swab to clean the area before the blood draw. In theory, if you use an alcohol swab and you're testing for alcohol, then you can, in theory, contaminate the blood sample with some of the residual fluid of the alcohol. Some people say if you let the alcohol swab dry for 30 seconds, it's not going to contaminate it. But we don't go by that process. We have it specifically in our policy never to use an alcohol swab when an alcohol test is ordered.
MR. LALLY: Now, in that vein, Doctor, with reference to Good Samaritan in the emergency department, what, if any, precautions have you or your facility taken in regard to those types of blood draws in testing for alcohol with regard to alcohol wipes being used?
DR. FALLER: My phlebotomy supervisor has removed essentially all, not 100 percent but all of the alcohol swabs down in the emergency room. So a phlebotomist, who perhaps could forget, which they shouldn't because we have competency policies for them -- so we have that in place where she's removed almost all of them so somebody can't mistakenly use a swab down in the emergency room.
JUDGE CANNONE: So keep your voice up again, please, Doctor, especially at the end of your sentences.
DR. FALLER: Sure.
JUDGE CANNONE: Thank you.
BY MR. LALLY:
MR. LALLY: And so, Doctor, the removal of those alcohol wipes from the emergency department at Good Samaritan, does that predate January 29th, 2022?
DR. FALLER: It's been in place for a long time. Before that, you know, it was a policy that they would use Betadine for swabbing. But that policy has been in place for a long time before that day in 2022.
MR. LALLY: You've spoken a little bit about as far as phlebotomists working within Good Samaritan. If you could just explain to the jury sort of what is a phlebotomist and what is it that they do?
DR. FALLER: A phlebotomist is any person who is trained to draw your blood when you come to a hospital. So they come in. We train people to draw the blood.
MR. LALLY: And, as far as with regard to phlebotomists at Good Samaritan, you mentioned that there are some proficiency testing or some protocols that they have to adhere to. Can you explain that a little bit more to the jury as far as what is involved in those?
DR. FALLER: So with anybody who works in the laboratory, per CAP checklist requirements and the government's requirements, there has to be competency policies and assessments on anybody who works in our laboratory, including phlebotomists. So any new phlebotomist, they get an initial training, and there is a -- they will get a training, and then they have to be assessed to make sure that they know what they need to do for their job, including knowledge of all policies. Then, after that, after initial training, our competency policy states that we need to assess them again at six months. We do the same thing, make sure they know what they are doing and then six months from that. So that's a year from when they started working for us, and then annually thereafter. So CAP is -- we have all of these competency policies for everyone to make sure the lab technicians know what they are doing. We also have competency policies for pathologists, as well. So it's all about making sure the final result that comes from our lab is a good quality.
MR. LALLY: Your Honor, may I approach the witness?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: So I'm showing you two sets of documents. If you could just look at those and then look up when you're finished.
DR. FALLER: (Witness complies.)
MR. LALLY: Just in general, do you recognize what those are?
DR. FALLER: Yes.
MR. LALLY: What do you recognize those to be?
DR. FALLER: They are two of our policies that we have for Good Samaritan Medical Center, one for the phlebotomists, one for our laboratory technicians. The first one is a patient preparation for specimen collection policy, which defines our policy for drawing the blood for the phlebotomist. The second is an alcohol policy which is one of thousands of policies that we have in the lab to describe how we -- our policy for alcohol testing. Every laboratory test in our hospital has a separate policy.
MR. LALLY: So everything from hematocrit to sodium to potassium chloride has its own policy; is that correct?
DR. FALLER: Correct.
MR. LALLY: And the policy you have before you, that's for alcohol testing?
DR. FALLER: Correct.
MR. LALLY: And those two policies that you have before you, were those policies what was in place on January 29th, 2022?
DR. FALLER: Correct. Yes.
MR. LALLY: May I approach again, Your Honor?
JUDGE CANNONE: You may.
MR. LALLY: The Commonwealth seeks to --
COURT REPORTER: I'm sorry. Could you repeat that?
MR. LALLY: Sure. The Commonwealth would seek to admit and introduce as the next two exhibits.
JUDGE CANNONE: Any objection?
MS. LITTLE: No objection, Your Honor.
JUDGE CANNONE: Do we have that ready for evidence?
MR. LALLY: I don't believe so.
JUDGE CANNONE: So these instead, Madam Court Reporter, will be the next two exhibits.
COURT REPORTER: Exhibits 107 and 108.
JUDGE CANNONE: Thank you.
MR. LALLY: I believe 107 is in reference to the alcohol testing and 108 would be in reference to the sample collection.
(Whereupon, documents re: alcohol were entered and marked Exhibit No. 107 in Evidence.)
(Whereupon, document re: specimen collection was entered and marked Exhibit No. 108 in Evidence.)
BY MR. LALLY:
MR. LALLY: I am just showing you a document as far as some medical records. Are you familiar with those records?
DR. FALLER: Yes.
MR. LALLY: Those records are in relation to a patient named Karen Read that visited the Good Samaritan on January 29th, 2022 is that correct?
DR. FALLER: Correct.
MR. LALLY: Now, with reference to -- may I approach again, Your Honor, just to --
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Directing your attention to a previously tabbed portion of those records, do you see a result for alcohol within those records?
JUDGE CANNONE: Mr. Lally, you have to keep your voice up.
BY MR. LALLY:
MR. LALLY: Let me say it again, sir. Doctor, with reference to those records and the page that I've opened up to, do you see a record in regard to a lab result for alcohol testing with regard to Ms. Read?
DR. FALLER: Yes.
MR. LALLY: And what is it reported as, sir?
DR. FALLER: It is reported at 93 milligrams per deciliter.
MR. LALLY: And is that, as far as milligrams per deciliter, is that a relatively standard way of reporting an alcohol result?
DR. FALLER: Yes, it is, in our hospital.
MR. LALLY: Could you explain to the jury sort of milligram per deciliter what that reading means as far as the metric that's used there?
DR. FALLER: Well, it means 93 milligrams of alcohol per deciliter of the blood.
MR. LALLY: If you could, explain to the jury sort of the testing process or the protocols that are in place at the Good Samaritan so that the blood is drawn by the phlebotomist and then what happens from there as far as the testing is concerned.
DR. FALLER: Okay. So in our --
JUDGE CANNONE: Before you do that, Doctor -- we might have to turn off the fans which we don't want to do -- I really need you to keep your voice up so that the court officer there, so that folks down there can hear you.
DR. FALLER: So at Good Samaritan, I can go through the process.
BY MR. LALLY:
MR. LALLY: Please.
DR. FALLER: The doctor will order the test. In the emergency room, we have two phlebotomists down in the emergency room. That test will print out. The order will print out down in the emergency room, and it will print out a label for the blood too. It will print out on that label the color of the blood to be ordered. It will also print out what on the label, what is to be tested in our lab. So that order will be seen by our phlebotomist in the emergency room. They will then locate the patient and perform the venipuncture, the blood draw and use the correct tube. They will go through their process of -- the number one -- one of the most important processes in testing somebody's blood is accurate patient identification. So within our policy, we ask the patient to state his or her first and last name and date of birth. We have them say it out loud to make sure we have two forms of identification. Once that's confirmed, there is also a bracelet on the patient. So we will match it up with a Good Samaritan I.D. number. So the first step is to make sure we have the correct patient. So then the phlebotomist has the order in front of her or him and uses the correct tube. Before drawing, they have to find the correct vein for the patient, which is usually in the forearm, antecubital fossa area. They will find that vein. They will cleanse the area with a nonalcohol swab which, in this case, the order was for alcohol.
JUDGE CANNONE: Doctor, I'm sorry. I'm going to stop you. I think the problem is that you are saying so much and your voice is fine and then it drops. It's fine and then it drops. Paul, can we turn the fans off, please? It's important that all of the jurors hear everything you say, Doctor.
DR. FALLER: Yes. Sorry. I'm trying.
JUDGE CANNONE: So speak into the microphone.
DR. FALLER: Okay. I'm going to bring it really close and hopefully you can turn it back on when I get better at this. So I'm sorry. It's hot. I'm hot too. So one is we make sure there is correct patient identification. We use the correct tube. We draw it. We don't use an alcohol swab. We use one that doesn't contain alcohol in that. Then the phlebotomist will then put the labels on the tube or tubes in front of the patient, then bring it back to his or her area, make sure they sign their name, initial their name on the tube, as well as the time. Then it will be put into a bag. And in the emergency room, it goes through a chute and goes directly to our laboratory for testing. Once we get it, that's called receiving the blood work. A technician, a lab tech in our lab, will scan -- there is a bar code on the label -- will scan it, and that will document the time that we received it.
They will also enter, manually enter, the name of the phlebotomist and the time of the blood draw so we will have accurate records of what we receive and the time. Once that's done, it's entered into our system. And then the technician will decide what needs to go next. In this case of an alcohol test, there is a green-top tube which has lithium heparin, has an anticoagulant in it. It's to prevent clotting. So we will get that tube; and, once it's entered, we will centrifuge it. And that is centrifuged for about 10 minutes or so, so that we can separate the layers of the blood. In the blood, when you first see blood, it's all red. There is no separation of the elements. But, within blood, there are red blood cells. There are white cells or inflammatory cells, and there is the liquid portion of the blood. So for alcohol testing, we need to -- there is an anticoagulant in it. And so we will centrifuge it to separate the different layers of the blood.
The different layers, the red cells, will go to the bottom, and the aqueous portion, or the plasma portion, will go to the top. And, when we test for blood alcohol in our lab, we are testing the aqueous portion, the plasma portion, of the blood. So that's why it's important for us to centrifuge it and separate the components. Once that is done -- that takes about 10 minutes or so, maybe a little bit longer, then that tube will be brought over to our machine, which is a Roche Cobas machine. And it will be put onto the machine, and that machine will test for the alcohol or whatever else is ordered on the patient. I think I've covered everything.
MR. LALLY: Now, with regard, sir, you've used the term a couple times as far as a centrifuge. Can you describe to the jury sort of what that is and how that instrument works?
DR. FALLER: Sure. The tube that we take is a blood tube, and we want to test the aqueous plasma portion of the blood, and the only way to get that plasma portion, or the watery solution of the blood, is we put it in the centrifuge, which will spin the blood at a rapid rate, something like 3300 rpms or so, which is fast. And it will separate the blood into those three layers. Also in the tubes that we use is a gel that comes in the tube that nicely separates the red blood cell component from the water or aqueous plasma component that keeps those two portions of the blood separate to make it easier for us to test on the machine.
MR. LALLY: Now, as far as the blood testing is concerned, is there a difference between sort of what's known as whole blood versus serum and plasma?
DR. FALLER: There is a difference. Whole blood is basically the whole blood. When somebody has a test drawn and if we test something on the entire blood without separating it, that would be whole blood. If we say we are testing on plasma or serum, we are actually separating the components of the blood by the centrifuge process.
MR. LALLY: Now, which of the two, as far as serum plasma versus the whole blood, which would record as far as a higher percentage of alcohol in the testing?
DR. FALLER: Alcohol, the answer would be plasma or serum would have a little bit higher blood alcohol content compared to whole blood.
MR. LALLY: As far as the separation that you're talking about, is there a specific area as far as the separation is concerned where alcohol tends to concentrate within?
DR. FALLER: Yes. Alcohol tends to go more into the watery or the aqueous component of the blood. So when we -- like serum or plasma has a 98-percent, reportedly 98- percent, water component. Whole blood, if you look at the whole blood overall, it has a lesser percentage. You know, if you look in the literature, it can be 86 percent or -- there is a range. So since alcohol tends to go to the watery components, if you measure alcohol like we do in hospitals on the serum or plasma, the value that we get will always be a little bit higher than total -- you know, than measuring on full blood.
MR. LALLY: Are you aware of through your training and experience sort of a conversion that can be done between sort of what's reported as the testing from the serum plasma to a whole blood count?
DR. FALLER: In the hospital, we are pretty much in the business of, you know, reporting alcohol in serum or plasma, and we are not in the business of, I guess, the legal aspects of alcohol testing because alcohol -- what I understand is that the alcohol legal limit in Massachusetts is 0.08 grams per deciliter. We don't make any conversions in a hospital. We are not in that business to do that. We just report on the serum percentage or the plasma level, and we don't make any attempts to do any official conversion to whole blood level. If we did, we would have to validate. We'd have to do many studies, and we're just not in the business for that.
MR. LALLY: I understand that's not how it's reported within your record or at your facility. My question is are you aware of a process by which you can sort of then mathematically convert from milligrams per deciliter to a gram?
DR. FALLER: I am aware of that. Recently, I had to read about it, but up until, you know, recently, I was not aware. So we're not in the business for whole blood. But there is a formula. I do know about it, and there is a -- if one wants to convert a serum or a plasma level to a whole blood, there are formulas that basically you need to -- it's a simple formula. But there is varying opinions on which formula can be used.
MR. LALLY: Now, as far as this specific patient, the defendant, Ms. Read, do you have any sense from the chart in front of you as far as sort of the timeline of when the blood was drawn to when it was tested and reported and things of that nature?
DR. FALLER: I think it was -- the order was 9:03 in the morning. Five minutes later -- it happened pretty fast. Five minutes later, the phlebotomist got the labels printed and five minutes after that, they went and drew it. It was very quickly. I don't have the numbers in front of me. But, ultimately, it was received in our lab, I think, 10 minutes after the order, the blood. Very quickly. And then the final result, when the alcohol level was reported in the computer system, was I think 50 minutes from the time of the order.
MR. LALLY: Thank you, sir.
MR. LALLY: May I approach to retrieve?
JUDGE CANNONE: You may.
BY MR. LALLY:
MR. LALLY: And that lab result was done pursuant to the testing and the policies and the protocols and everything in your lab was 93 milligrams per deciliter; is that correct?
DR. FALLER: Correct.
MR. LALLY: Thank you, Doctor. I have no further questions.
JUDGE CANNONE: Cross-examination?
CROSS-EXAMINATION BY MS. LITTLE:
MS. LITTLE: Good afternoon.
DR. FALLER: Good afternoon.
MS. LITTLE: You testified that, you know, hospitals are not in the legal business of calculating BACS. Do you recall that testimony?
DR. FALLER: Yes.
MS. LITTLE: And you'd agree that there are differences between screening tests that are conducted at hospitals and forensic tests that are done in labs, correct?
DR. FALLER: Correct.
MS. LITTLE: And the purpose of testing and sort of the clinical setting at a hospital is to assist in the quick diagnosis and treatment of a patient; is that right?
DR. FALLER: Yes. Correct.
MS. LITTLE: And so your priorities may be different than those if you are in a forensic lab where the goal is to ensure accuracy and reliability at all costs, correct?
DR. FALLER: I don't agree. Not correct.
MS. LITTLE: Well, hospitals use serum tests to screen for the presence of alcohol, correct?
DR. FALLER: Correct.
MS. LITTLE: And you'd agree that serum testing does not measure alcohol directly, but it actually measures the presence of NADH; is that right?
DR. FALLER: Correct.
MS. LITTLE: And NADH is the byproduct that is created when the body breaks down alcohol?
DR. FALLER: Correct.
MS. LITTLE: And the reason hospitals use a serum test rather than a whole blood test is because it's quick and efficient, and you can get test results within 20-ish minutes? Does that sound about right?
DR. FALLER: Correct.
MS. LITTLE: And you'd agree that NADH, which is what serum essentially tests for, can also be elevated by factors other than alcohol in the blood?
DR. FALLER: I'm not aware of that.
MS. LITTLE: Are you familiar with any medical literature that is found that NADH is created when the body has elevated either lactate or LDH in the system?
DR. FALLER: Correct. There are some in our policy. There are some factors that can lead to falsely elevated or falsely lowered serum alcohol. One is lactic acid or LDH. Another one is Waldenström macroglobulinemia, which is a hematological problem and other things that can interfere with not just any test but lipids, high levels of lipids or hemolysis or high levels of bilirubin. But our machines are very sophisticated now. If there are any elevations of, let's say, you know, hemolysis or lipids or bilirubin, the Roche machines will detect that and flag it as a possible interference, or it won't even let us result the tests. So with any test, there can be interferences, and I'm sure there can be interferences with the forensic way of testing, as well.
MS. LITTLE: Sure. And there are other causes of high levels of LDH and, therefore, NADH also include things like trauma, muscle weakness and loss of muscle tissue or abnormal tissue formation; is that correct? Have you read studies about that?
DR. FALLER: I haven't read those studies, no.
MS. LITTLE: Would you agree that there may be other sort of medical stressors or things that can't necessarily be captured by the technology but that could cause error in testing?
DR. FALLER: I don't understand that question.
MS. LITTLE: Well, you testified that there can be certain errors in testing. That's something that we see throughout all different types of certain scientific literature which includes ethanol testing?
DR. FALLER: Yes.
MS. LITTLE: And there are certain sort of factors that could cause a higher level of NADH that might not necessarily be picked up by the machines that you use at the hospital; is that correct?
DR. FALLER: I am not -- I mean, if there is, it's nota common phenomenon. Our methodology for doing many tests are based on this NADH enzyme methodology, and we have never had issues with it. I read a lot. I haven't read about, you know, major faults of our methodology for testing. Most hospitals, when we look at -- we actually have to do proficiency testing with any test that we do in a hospital. So three times a year, we get sent unknown levels of alcohol and five samples, to be accurate, three times a year. And we are able to look at not only our results and make sure they are correct, but we are able to look at, you know, what other hospitals are doing across the nation. So when I last looked, and it's held true for 10 years and maybe 20 years, is that of the, I think, 5,000 hospitals that are testing for alcohol, it's over 80 percent of them are using our methodology, which is the alcohol dehydrogenase and NADH. And I can't imagine, you know, why -- if there were any major issues with alcohol testing using that methodology, why would -- you know, it wouldn't be that high of a --
MS. LITTLE: Well, as you testified, the goal in a clinical setting, obviously, is to test for the presence of alcohol, but you're not in the business of trying to sort of calculate BAC, correct?
DR. FALLER: No, we don't. We don't.
MS. LITTLE: And so your goals are to make sure you're screening for the presence of alcohol but you're not quite as concerned with the precise amount that you might see in, for instance, a whole blood test ina forensic lab?
DR. FALLER: Well, we result in terms of in the serum. We know the Massachusetts laws. And laws across the nation are based on whole blood. But there are in the literature formulas that you can use if, you know, it were a medical legal case that one can use to convert our level to a blood alcohol. We don't do it ina hospital. We won't report a serum alcohol and then we don't do the conversion because it's a very rare event that a level will end up in court. But there are forensic lab people that can provide that formula.
MS. LITTLE: And, when you get a test result from a serum test, that information does not establish when alcohol was consumed, correct?
DR. FALLER: Correct.
MS. LITTLE: And so you're just looking at a specific point in time to say this is what the serum test reflects at 9:08 a.m. on January 29th, correct?
DR. FALLER: Correct.
MS. LITTLE: Thank you. No further questions.
JUDGE CANNONE: All right. Mr. Lally, any followup?
MR. LALLY: Just briefly.
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: As far as the interferences or anything that would lead to elevated levels from your view of Ms. Read's chart, was there anything like that present there?
DR. FALLER: I didn't see anything, no.
MR. LALLY: Any interferences would be accounted for in the sense that the machine would sort of vet them out and not result or not recorded in the chart if that were to occur; is that correct?
MS. LITTLE: Objection, Your Honor.
JUDGE CANNONE: Form of the question. I'll sustain the objection. You can ask it differently.
MR. LALLY: Sure.
BY MR. LALLY:
MR. LALLY: Dr. Faller, with regard to the interferences that you were talking about, what, if any, impact would that have on the results being reported?
DR. FALLER: If there were the three major things that could interfere with the result like high lipids, hemolysis or high bilirubin, our machine would flag that and we would have some information that the result may not be valid and sometimes we will record a result with a disclaimer or sometimes if those levels are so high, we won't record it at all. But, in this case, there were no flags.
MR. LALLY: Nothing further, Your Honor.
JUDGE CANNONE: Anything, Ms. Little, or are you all set?
MS. LITTLE: If I could have one moment, Your Honor?
JUDGE CANNONE: Sure.
(Whereupon, there was a brief pause.)
MS. LITTLE: All right. Just one moment, Your Honor. No further questions.
JUDGE CANNONE: All right. Dr. Faller, thank you. I'm sorry I gave you such a bad time about your voice.
DR. FALLER: Okay. I'm so sorry. Thank you.
JUDGE CANNONE: Thank you.
(Whereupon the witness was excused.)
JUDGE CANNONE: Your next witness, Mr. Lally?
MR. LALLY: Yes, Your Honor. The Commonwealth calls Mr. Nicholas Roberts to the stand. Your Honor, may we approach just while the witness is coming in?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So I just want to say that I came out into the courtroom at 1:20, thinking that if you hadn't figured out "SS" I would just take a look at it, and it was sitting there. So I assumed that was done. Why wasn't that done?
MS. LITTLE: I am so sorry. I thought you said 2:00 o'clock. So for some reason in my brain, I thought we were coming back from lunch at 2:00. So it's my fault. But I do have the redactions for you. They are sitting on my desk.
JUDGE CANNONE: All right. And you're in agreement with them?
MR. LALLY: I just need to -- I mean, I'm assuming I know what they are, but I just --
JUDGE CANNONE: All right. So this is what I try to avoid.
MR. LALLY: I know.
JUDGE CANNONE: All right. So what did you want to come to sidebar for?
MR. LALLY: Your Honor, just as far as I know there has been some opposition, and I was seeking a ruling from the Court as far as the admissibility of the results. If the Court wants, I can obviously bring the phlebotomist in, but I think the evidence is --
JUDGE CANNONE: Now, do you still have an objection? It sounded like you didn't really have an objection.
MS. LITTLE: No.
JUDGE CANNONE: Okay. So no objection. Okay. So we will go forward. Just move it along.
MR. LALLY: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded.)