Day 27 - June 18, 2024

The court addressed the Commonwealth's motion to exclude Dr. Russell's proposed testimony. After hearing defense arguments about the timing of its disclosure and comparing other late-disclosed material, the judge found a Rule 14 reciprocal-discovery violation. The judge ordered a voir dire to determine the remedy and permitted the Commonwealth to examine Dr. Russell on any matters it considered necessary; the stated alternative was that she would not testify.

Dr. Marie Russell described her emergency-medicine and forensic experience, including work and publications involving dog bites, then testified that John O'Keefe's arm injuries appeared consistent with an animal attack, most likely a large dog. The court created a separate voir dire exhibit record for three arm photographs. On cross-examination, Russell acknowledged limited crash-reconstruction training, no pathology board certification, no written report, and a focused review of selected medical materials. In the court's own questions, she said she had not reviewed materials concerning Chloe's prior bite history or UC Davis DNA submission forms. The judge reserved whether Russell would testify.

The Commonwealth asked the court to exclude a late-disclosed defense witness under Rule 14, arguing that the timing of the disclosure, the materials provided, and the proposed opinions warranted exclusion. Defense counsel opposed exclusion, saying the witness came forward through an intermediary, the defense disclosed her promptly after deciding to use her, and her testimony would rebut the Commonwealth's anticipated evidence. The parties agreed her testimony could be limited to the animal-attack or dog-bite issue rather than motor-vehicle causation. Judge Cannone reserved her decision, told the Commonwealth to begin looking for a possible rebuttal expert, and then addressed the planned voir dire of Dr. Wolfe and Dr. Rentschler.

Dr. Daniel Wolfe described his accident-reconstruction qualifications and ARCCA's review of materials concerning the Lexus, John O'Keefe's injuries, and the incident. He said he handled vehicle-damage analysis while Dr. Andrew Rentschler handled injury analysis. Under questioning from the court and the Commonwealth, Wolfe said the federal agencies provided the materials and asked ARCCA to assess whether the evidence was consistent with a pedestrian interaction between O'Keefe and the Lexus; he said ARCCA did not choose the materials it received.

Dr. Andrew Rentschler described his biomechanics and accident-reconstruction background, ARCCA work, prior expert testimony, and the principles he uses to analyze injury causation. He said ARCCA's opinions were based on the materials listed in its report and its testing. In response to the court, he said his assignment included assessing how the injuries occurred and whether head and arm injuries could have resulted from contact with the Lexus.

The court heard argument over whether defense experts could offer the fourth conclusion in their report. The Commonwealth argued that conclusion fell within forensic pathology rather than the experts' qualifications; the defense argued it was within their expertise and differed from Trooper Paul's opinion. The judge said she would review the report more closely and issue a decision Thursday, while asking the Commonwealth to identify any scheduling effect if Dr. Russell were permitted to testify.