Commonwealth v. Read — Trial ArchiveMarie Russell - Redirect/Recross
378 linesMR. ALESSI: Thank you, your honor.
JUDGE CANNONE: Okay.
MR. ALESSI: Thank you.
JUDGE CANNONE: Okay.
MR. ALESSI: May I, your honor?
JUDGE CANNONE: Yes.
MR. ALESSI: Thank you, your honor. I would like to have published what is in evidence, 201A, and then I'm going to proceed after that with 2011E. Okay, Dr. Russell, I have up this exhibit, and with regard to the questions of Attorney Brennan that he just asked about these alleged shards, can you tell the size of them from this depiction?
DR. RUSSELL: I don't even see any shards in that depiction.
MR. ALESSI: Can you read that slide and see the handwriting that is there?
DR. RUSSELL: Yeah, it looks like "clear [unintelligible] plastic collected from 7/18/18." There's another date over to the left side, and then it says "AMV62923."
MR. ALESSI: Right. And if Mr. Woll, you could go back — can you determine at all from this whether the shards are microscopic or not?
DR. RUSSELL: I cannot see any shards.
MR. ALESSI: All right, let's go to 2011E. With regard to this depiction, do you recognize what is in this depiction?
DR. RUSSELL: It looks like irregular red colored pieces of debris.
MR. ALESSI: Thank you. And do you recognize the ruler above those pieces?
DR. RUSSELL: I'm not sure if this is the same ruler as in the previous image, but there does appear to be a ruler.
MR. ALESSI: If we could go back to the previous slide — does that at all assist you in determining whether or not it's the same ruler?
DR. RUSSELL: Not exactly, but there are similarities.
MR. ALESSI: So let's go back — flip back to the next slide. Does what is up in black help you reach any conclusion about whether those pieces are microscopic in size or not?
DR. RUSSELL: Well, those are — again, I'd like to go back, but I think those might be 1/16th or 1/32nd of an inch if we're using the same edge of the ruler. Those pieces that are depicted are not microscopic because we can see them with our eyes, but they're extremely small.
MR. ALESSI: All right. So they're extremely small. You've asked — you want to go look back at the ruler. Does that further assist you in your analysis as to the size of these pieces?
DR. RUSSELL: So those look like they're maybe a 1/16th of an inch or less.
MR. ALESSI: Okay. So let's go back, Mr. Woll, one more time. So these pieces are a 1/16th of an inch or less. Correct?
DR. RUSSELL: Yes. If we're using the same ruler.
MR. ALESSI: So with regard to — and if we could, Mr. Woll, now go to exhibit one. Attorney Brennan asked you several questions with regard to whether those 1/16th of an inch or less pieces could cause these types of abrasions. You have addressed this issue, but I would like you to answer whether those pieces — 1/16th of an inch or less — could cause, now knowing the size, whether they could cause these abrasions, including with regard to this pattern.
DR. RUSSELL: I don't believe so.
MR. ALESSI: And with regard to that answer, how do you come to that conclusion? What is your thought process?
DR. RUSSELL: Okay, again, there are multiple parallel abrasions. So these pieces would need to be lined up in a certain configuration to cause those abrasions, and they'd have to be oriented in nearly the same direction, because many of these groupings of wounds — and if I may use the pointer — are oriented in this direction a little bit. Anatomically, a little inferior to superior, ever so slightly this way. So they're oriented in the same way. So not only would those abrasions be rather large for those tiny pieces of plastic or glass, but they'd have to be oriented in a certain way to cause those wounds.
MR. ALESSI: As an emergency department physician, as a forensic pathologist, what is the likelihood, if any, that those shards could cause those wounds? Let me ask it differently, Dr. Russell. Please state your evaluation and conclusion and the basis for it as to whether those shards of plastic, 1/16th of an inch or less, can cause those abrasions and wounds on the right arm of Mr. O'Keefe.
DR. RUSSELL: I do not believe that they could have caused those wounds.
MR. ALESSI: Is that a close call for you to come to that conclusion?
DR. RUSSELL: Not at all.
MR. ALESSI: Please keep that depiction up, Mr. Woll. You were asked numerous questions by attorney Brennan where he wanted you to go section by section by section and evaluate each — he grouped these, I think, five or six. Do you recall that questioning?
DR. RUSSELL: Yes.
MR. ALESSI: Is that a scientifically proper way to evaluate this wound to determine whether or not it is from a dog? Is that a proper methodology to look at each individual section only?
DR. RUSSELL: No.
MR. ALESSI: How is it improper to evaluate them that way under your methodology?
JUDGE CANNONE: Sustained.
MR. ALESSI: Dr. Russell, what is the proper way to evaluate the wounds on the right arm to determine whether or not they're caused from a dog?
DR. RUSSELL: To look at patterns, because individual wounds can vary, but the pattern is what is significant.
MR. ALESSI: And on your direct examination, did you go through this method that you just described — a pattern and pattern recognition? Did you go through that in some detail and discuss that?
DR. RUSSELL: Yes.
MR. ALESSI: Now, you were asked questions by attorney Brennan, and in his questions it was asserted that you don't have a published standard. Do you recall that questioning?
JUDGE CANNONE: I'm going to allow it.
MR. ALESSI: Do you recall the question asking whether you had a standard to reference for your methodology? You recall that questioning in reference to dog bite wounds?
DR. RUSSELL: Yes.
MR. ALESSI: And with regard to the question and assertion in the question with regard to a methodology, you referenced studies, and as part of your answer, do you recall that discussion with Mr. Brennan?
DR. RUSSELL: Yes.
MR. ALESSI: Are those studies peer-reviewed?
DR. RUSSELL: Yes.
MR. ALESSI: And give the name please — again, we had gone over on direct — but give the name of the lead authors of each of those studies.
DR. RUSSELL: Yes, so one of them was by Dr. De Munich, and the other one was Dr. Pollock. And by peer review I — that means that the article was reviewed by other physicians in those respective specialties of the authors.
MR. ALESSI: I'm sorry to interrupt you, Dr. Russell. Finish — the specialties of the authors.
DR. RUSSELL: Yes.
MR. ALESSI: We could take that down for a moment. Your honor, may I approach please?
JUDGE CANNONE: Okay.
MR. ALESSI: If I could have — your honor, for Madam Court Reporter, exhibits marked for identification PPP and QQQ — and I'll start with PPP if I could please. Thank you, Madam Court Reporter. May I present it? Thank you, Your Honor. Dr. Russell, you have before you PPP. Is that the study with the lead author Dr. De Munich?
DR. RUSSELL: Yes.
MR. ALESSI: Do you recall attorney Brennan in his questioning asserting that you had no basis and there was no support for your methodology of pattern recognition? Do you recall that discussion?
JUDGE CANNONE: Sustained.
MR. ALESSI: Do you recall questioning on cross-examination by attorney Brennan as to your basis for a methodology in terms of pattern recognition with regard to dog wounds? Do you recall that?
DR. RUSSELL: Yes.
MR. ALESSI: Can you please take a look at exhibit PPP for identification and identify whether there's any section in that study that talks about and documents the methodology that you use?
DR. RUSSELL: Yes. So this is an article that was published in the International Journal of Legal Medicine, and it is entitled "Forensic Approach of Fatal Dog Attacks: A Case Report and a Literature Review." And so it's several pages long, talks about a specific case, and then on page 298, there are some significant passages that I would like to read actually. So it says here: "Dogs have some very specific dental and maxillofacial features. They have 42 teeth, 20 in the upper jaw, 22 in the lower. Usually the mandibular dental arch is narrower and shorter than the maxilla" — and that means upper, you know, lower and upper; maxillary is the upper, maxilla — "and the shape of the dental arches varies among the different breeds.
DR. RUSSELL: There are natural gaps between the teeth that are attenuated or accentuated depending on the breed. The canine masseter-pterygoid complex is short and strong and its insertion on the mandible provides powerful mechanical advantage." So what that's talking about is the muscles, how powerful they are. And then it goes on to measure the forces.
MR. ALESSI: If you could find the location, if there's any in there with regard to pattern — is there any discussion about attributes and patterns in that study?
DR. RUSSELL: Yes. This next paragraph: "The above features attribute to the characteristics of dog bites. The maxillary teeth distal to the mandibular teeth allow the so-called scissor bite in which the dog can lock onto his prey. The tremendous force of the bite muscle complex can develop allows the dog to twist and tear and cause great damage. The injuries caused involve a combination of biting, crushing, tearing that result in characteristic patterns of punctures, lacerations, avulsions of the skin and soft tissue. Forensic pathologists noted the multiple torn wounds with adjacent puncture wounds — the so-called hole and tear combination — that's in this case.
DR. RUSSELL: The puncture wound, a round hole, is made by the canine tooth of either the upper or lower jaw on one side, that serves as an anchorage while the other teeth cut into the flesh causing stretching lacerations in the process of biting, shaking and tearing. This should be considered pathognomonic for dog bites, especially when accompanied by tissue defects and claw marks — the latter being narrow, superficial linear abrasions arranged parallel to one another, four or five in number and usually found in the vicinity of the bite. This pattern allows differential diagnosis with bites of other animals, which are not accompanied by pulling and shaking nor by the usage of prominent canine, and with stab wounds caused by sharp instruments."
MR. ALESSI: Does that study support or not support, in the literature, a pattern recognition methodology?
JUDGE CANNONE: That's sustained.
MR. ALESSI: What do you conclude from the language you just read in that study with regard to methodology of discerning dog bite wounds?
DR. RUSSELL: That pattern recognition is very important.
MR. ALESSI: Now, what I would like — if I could approach, your honor.
JUDGE CANNONE: Okay. Sure.
MR. ALESSI: If I could return this to Madam Court Reporter and please request exhibit QQQ for identification. Thank you, Madam Court Reporter. May I hand it to the witness?
JUDGE CANNONE: Yes.
MR. ALESSI: Thank you, your honor. I have now handed you what is marked for identification as exhibit QQQ. I would ask please — is that the Pollock study that you referenced in your direct and in your cross-examination?
DR. RUSSELL: Yes.
MR. ALESSI: Could you please — as you did with the De Munich study — can you please articulate just the relevant sections with regard to your reliance upon that study?
DR. RUSSELL: Yes. So this is an article from the Institute of Forensic Medicine at the University of Vienna.
MR. ALESSI: Is that a peer-reviewed study?
DR. RUSSELL: Yes.
MR. ALESSI: Please continue. Continue.
DR. RUSSELL: Okay. The title of the article is "Fatal Dog Bite Injuries." And there's a summary. It says the dog's front teeth — so let me preface this. This was talking about a deceased child. And they described the features. It says the dog's front teeth left marks of individual circular or scratch-like abrasions as well as slit-like skin severances of the skin arranged in curved lines. The pattern of the skin lesions largely corresponded to the anatomy of the dog's set of teeth. No tissue defects could be detected.
MR. ALESSI: And is there any other section of that study that references pattern and pattern recognition methodology? Any other words, any other section? And if so, could you please read them?
DR. RUSSELL: Yes. So on page 491, there's a section called "The Morphology of Dog Bite Injuries."
MR. ALESSI: What does morphology mean?
DR. RUSSELL: It means the shape. And so it goes on to say the anatomy of a dog's teeth is the key to interpreting injury findings. The particularly long cone-shaped pointed K9 teeth often create sharp-edged wound slits that can be mistaken for stab wounds. The bite mark on the skin is ideally a complete and congruent imprint of the front dental arch. Sometimes only the protruding K9 teeth are imprinted. If the shorter incisors leave an impression, smaller skin lesions — parenthesis, round pressure marks or streaky glide marks — can be found between the impact points of the canines. In practice, it is hardly expected that all six incisors of a jaw will act uniformly.
MR. ALESSI: I'm sorry, I didn't hear that sentence. Could you repeat that?
DR. RUSSELL: In practice, it is hardly expected that all six incisors of a jaw will act uniformly.
MR. ALESSI: Is that sentence relevant at all to what you've referenced as an incomplete bite?
DR. RUSSELL: Yes.
MR. ALESSI: How is it relevant?
DR. RUSSELL: Because if not all the teeth impact, then you get a partial bite. You know, you get irregular appearances. There's another sentence that's important here. A gap in the injury pattern can have several causes. Oblique biting — so what that means is not dead center on, but off to the side a little bit. Oblique biting. A biting curvature of the body surface, which we could have in this case around the arm, the edges of the arm.
MR. ALESSI: Mr. Woll, could you please put exhibit one back on the screen? And Dr. Russell, it would be helpful as you're discussing these items if you could determine whether or not what's discussed in that study is at all depicted in this exhibit.
DR. RUSSELL: Okay. So oblique — we discussed oblique biting, which is off at an angle. Curvature of the body surface. So here we have a body surface that's actually quite irregular. There's curvature down here. There's definitely curvature around the elbow. And so there's curvature around the bones. So curvature of the body surface can change the appearance of the wounds. Interposition of textiles — so that would be clothing.
MR. ALESSI: Is there an example of interposition of textiles in this case?
DR. RUSSELL: I don't think so. Well, was — does textiles mean clothing?
MR. ALESSI: Yes.
DR. RUSSELL: And I thought you meant in this article, but yes, there was textiles in this case. Mr. O'Keefe was wearing that hoodie sweatshirt. So interposition of textiles — and then it goes on to mention some other things which I don't think apply in this case, such as different tooth lengths, tooth loss, abnormal teeth.
MR. ALESSI: And is there any other aspect of that study that is relevant to your analysis and methodology with regard to evaluating the wounds in exhibit one?
DR. RUSSELL: You know, a lot of this article is relevant and I don't want to keep reading it, but if there is a section —
MR. ALESSI: Because then I'm going to have a few more questions once you're done identifying the most relevant sections of the article.
DR. RUSSELL: Yeah, this — and then there's one section — thank you. Oh yes, thank you. Then it does mention that in some victims, parallel scratch marks originating from clawed paws are found accompanying the injuries.
MR. ALESSI: And is there any other section that you believe supports your evaluation of the wounds on exhibit one?
DR. RUSSELL: No, I think that's it.
MR. ALESSI: All right. Thank you, your honor. May I approach?
JUDGE CANNONE: Yes.
MR. ALESSI: Thank you, Dr. Russell. Madam court reporter. So, do those studies — the de Munck and the Pollock — that you just referenced, do they support the methodology of pattern recognition that you applied in evaluating exhibit one?
DR. RUSSELL: Absolutely.
MR. ALESSI: And do they directly or indirectly support that methodology?
DR. RUSSELL: Directly.
MR. ALESSI: And is that medical literature peer-reviewed support or not for your pattern recognition methodology?
DR. RUSSELL: Yes.
JUDGE CANNONE: As to the form, Mr. Alessi.
MR. ALESSI: Do those studies — each of them, those peer-reviewed studies — support your pattern recognition methodology that you applied with regard to exhibit one?
DR. RUSSELL: Yes.
MR. ALESSI: Did those studies look solely at individual wounds, or did those studies' methodology look at the overall pattern to evaluate and discuss wounds from dogs?
MR. BRENNAN: Objection.
JUDGE CANNONE: Ask it differently.
MR. ALESSI: How did those studies evaluate wounds with respect to individual wounds and overall wounds? How did the studies evaluate those?
DR. RUSSELL: They described some individual wounds — there were numerous wounds — described some individuals, but they looked at the overall pattern to make recommendations.
MR. ALESSI: Was the overall pattern in those studies important or unimportant in the analyses and conclusions that those authors reached?
DR. RUSSELL: Important.
MR. ALESSI: Now let's switch topics. Attorney Brennan asked you about various considerations you made with regard to differential diagnosis. Do you recall those?
DR. RUSSELL: Yes.
MR. ALESSI: Let's just start with your differential diagnosis methodology. Describe whether or not you took into consideration additional information that was presented to you in determining whether your initial hypothesis was correct or not. Describe just generally that process and whether or not you took new information and retested your hypothesis. Describe that process that you undertook, just generally.
DR. RUSSELL: So in general, when a physician is presented with a set of circumstances, or wounds, or symptoms, or whatever, they come up with a possible diagnosis but have to consider other diagnoses as well. That's what a good physician does. They consider what they think is the most likely and then they go through a process of including and eliminating the other possibilities. Would you like me to give an example — like chest pain — or
MR. ALESSI: I'd like you to give an example of what you used here in this case as the application of that.
DR. RUSSELL: Well, okay. So I was just describing the overall process because if you narrow in on a diagnosis and never consider any other information, sometimes your diagnosis is going to be wrong. And so you have to allow for other information. And so I did that in this case. I examined the circumstances. I examined the wounds photographically and came up with my impression, but I also considered other possibilities. What else could cause those scratches or those abrasions?
MR. ALESSI: And did you honestly and scientifically consider those other possibilities as you continued to review the information — old and new information — in this matter?
DR. RUSSELL: Yes.
MR. ALESSI: And did that process allow you to avoid confirmation bias?
DR. RUSSELL: Yes.
MR. ALESSI: So in terms of that process, now let's go through some of the items that attorney Brennan discussed with you. He asked you several questions, one of which: did you evaluate news clips and audio clips? You remember that questioning? May I have a moment, your honor?
JUDGE CANNONE: Yes.
MR. ALESSI: Thank you. Dr. Russell, do you recall questioning by attorney Brennan with regard to some alleged clip with regard to a motor vehicle — the Lexus and the pedestrian in this case? Do you recall that discussion?
DR. RUSSELL: Yes.
MR. ALESSI: And attorney Brennan asked you about the slide presentation that Dr. Welcher did with regard to this supposed accident reconstruction. You remember those questions?
DR. RUSSELL: Yes.
MR. ALESSI: Mr. Woll, if you could please publish the slide from Dr. Welcher's presentation with the arm out and the glass in the back. Not that one. The one in this case of the Lexus and Dr. Welcher dressed up as Mr. O'Keefe with clothing in the back — toward the back of that slide presentation. Probably around 130-ish. 120. That's it. Yes. And what slide number is that?
DR. RUSSELL: 109.
MR. ALESSI: 109. So, Dr. Russell, can you see what is depicted on that slide?
DR. RUSSELL: Yes.
MR. ALESSI: Is that impact depicted on this slide — is that a clip or is that a direct impact to the arm?
DR. RUSSELL: I believe that that's a rather direct impact.
MR. ALESSI: Okay. So this is a direct impact. And now from your experience — and you were asked about this on cross-examination — a direct impact to the arm, assume as was discussed a motor vehicle, 6,000 lb Lexus going 24 miles an hour in reverse, with a direct impact on the arm. From your experience as an emergency medicine physician, what type of injuries would you expect to this arm?
DR. RUSSELL: So I would expect at least significant bruising. But I would also expect possible fracture, possible dislocation of portions of the arm.
MR. ALESSI: What portions of the arm would you expect fractures and dislocations?
DR. RUSSELL: Well, from this image, if it impacted that section of the arm and let me use my pointer right here. There's a very good possibility that there would be a radius and ulna fracture of the forearm, or an elbow fracture.
MR. ALESSI: Could you please stand up and, with your honor's permission, show where the radius and where the ulna bones are of the arm?
JUDGE CANNONE: The lights on, please. Thank you. You can keep the lights on.
DR. RUSSELL: So the radius and ulna are the two long bones in the forearm, right underneath the skin, and then they join with the humerus bone here in the upper arm at the elbow. And those — of course, these bones are very susceptible to fracture with a significant impact, and also the elbow would be susceptible to fracture.
MR. ALESSI: How about the hand?
DR. RUSSELL: The hand could be injured. It depends on where the hand was in relation, and also if there was a fall. There are other mechanisms that could contribute to a fracture from the actual fall onto the ground. So there could be a wrist fracture, digital fractures. It depends on the circumstances.
MR. ALESSI: Thank you. You may be seated. Thank you very much, Dr. Russell. From a direct impact to the arm, as you said, as is depicted here — what is the likelihood of there being any fracture to any bone?
JUDGE CANNONE: Sustained in that form.
MR. ALESSI: Do you have an opinion based upon a reasonable degree of medical certainty as to whether there would be any fracture to any bone?
DR. RUSSELL: I believe that there was a very high likelihood that there would either be a significant bruise, or a laceration, or a fracture of the bones.
MR. ALESSI: Now, let's go to — as I understand it, you have reviewed the autopsy report of — or excuse me, of Mr. O'Keefe?
DR. RUSSELL: Yes.
MR. ALESSI: And you've reviewed the file, the medical records files, correct?
DR. RUSSELL: Yes.
MR. ALESSI: Is there any indication at all of significant bruising to the right arm of Mr. O'Keefe?
DR. RUSSELL: No.
MR. ALESSI: With regard to the lower extremities, from what is depicted here — meaning this impact — did you evaluate the autopsy and the medical records to see what evaluation was done of the lower extremities?
DR. RUSSELL: Yes, a very extensive evaluation of lower extremities was done.
MR. ALESSI: What very extensive evaluation was done, and by whom?
PARENTHETICAL: [unidentified counsel]
JUDGE CANNONE: : May we break for lunch? All right. I'm going to send you out for lunch. Okay, we'll see you. : Yes. All right, Chrissy. Does that : help? All right.
DR. RUSSELL: By Dr. Scordi-Bello, and it was both an external and an internal examination of the lower extremities.
MR. ALESSI: Let's start with the internal examination by Dr. Scordi-Bello. Could you please describe what type of internal examination she performed?
DR. RUSSELL: Well, she opened up the legs —
JUDGE CANNONE: Sustained.
COURT OFFICER: Put us back in session. You may be seated.
JUDGE CANNONE: All right, Mr. Alessi, whenever you're ready.
MR. ALESSI: Thank you, your honor. Dr. Russell, we left off talking on the topic of differential diagnosis, and more specifically, we were talking about the lower extremity, the leg, and you were mentioning — we reoriented to attorney Brennan's questioning in the area. Could you please describe for the jury your basis of differential diagnosis with regard to the lower extremities and the leg, and specifically with regard to the autopsy's analysis of that area?
DR. RUSSELL: Well, the autopsy doctor did a very thorough evaluation of lower extremities, to include the external examination, which is very important, as well as an internal examination of the extremities — the tissues beneath the skin in both legs.
MR. ALESSI: And just briefly, how did she perform that internal examination beneath the skin to look at what was beneath the skin?
DR. RUSSELL: Well, to directly visualize those tissues, she had to open up the skin. So she opened up the skin in the legs from the buttocks right down to the bottom of the legs near the ankle, and then reflected — or folded back — the skin to examine if there were any injuries to the tissues underneath.
MR. ALESSI: Were there any injuries to the tissues underneath from that examination?
DR. RUSSELL: There were no injuries that she mentioned, nor any injuries that I saw on the pictures. And no injuries.
MR. ALESSI: Did that include analyzing whether there was any inflammation?
DR. RUSSELL: No. You can't tell about inflammation, but I specifically looked at the area adjacent to a very punctate little abrasion on the knee. And I looked underneath that area very carefully on the photograph, and there was nothing — no injury underneath, no bruising, no hemorrhage underneath that abrasion.
MR. ALESSI: With regard to that — how did you describe that punctate? I want to make sure I got it accurate — by the right knee?
DR. RUSSELL: Abrasion.
MR. ALESSI: Abrasion. Could you determine from that abrasion?
DR. RUSSELL: I could not.
MR. ALESSI: I have no further questions at this time, your honor.
JUDGE CANNONE: Okay.
MR. BRENNAN: May I inquire about scope?
JUDGE CANNONE: Yes. I'll see you at sidebar.
MR. BRENNAN: May I?
MR. BRENNAN: Dr. Russell, I asked you questions about your past testimony regarding methodology. And when I asked you those questions and showed you some of your transcripts, would you agree with me that you have testified that there is no recognized methodology on diagnosing dog bite wounds?
DR. RUSSELL: No. I believe I said that there was no standard methodology, or no standard guidelines, as to how to diagnose dog bite wounds.
MR. BRENNAN: There is no accepted practice directing you on what is appropriate and what is not appropriate to identify a wound as a dog bite. Is there?
DR. RUSSELL: There are no accepted standards.
MR. BRENNAN: When attorney Alessi had you look at a couple of case files from the Journal of Legal Medicine, let me ask you about that. You're not suggesting that those articles substitute for the absence of standards in identifying dog bites and photographs, are you?
DR. RUSSELL: Before standards are created, there are usually articles that have recommendations upon which the standards are subsequently based.
MR. BRENNAN: That wasn't my question.
JUDGE CANNONE: So we're going to listen to the question, please.
MR. BRENNAN: Those articles, whatever their value you think they are, they do not create a standard to apply for diagnosing or looking at a photograph and coming to a conclusion whether the abrasions are dog bites, do they?
DR. RUSSELL: Correct.
MR. BRENNAN: And so when he had you read pieces of these articles, had Mr. Alessi gone over these articles with you before?
DR. RUSSELL: Yes, we discussed them several months ago.
MR. BRENNAN: Did he point out parts of them he would like you to read?
DR. RUSSELL: I pointed out parts that I thought were significant in this article that was marked for identification. Parts of it are highlighted.
MR. BRENNAN: Who highlighted those parts?
DR. RUSSELL: Mr. Alessi highlighted those based on my recommendations.
MR. BRENNAN: So attorney highlighted the parts he wanted you to read to the jury.
DR. RUSSELL: Yes. And I believe they were the same parts that I read last time.
MR. BRENNAN: Could we have exhibit one, please? Now, regarding the Munich article, that was a case study on the unfortunate death of a young girl.
DR. RUSSELL: Yes.
MR. BRENNAN: Who was attacked by or bitten by up to three different dogs.
DR. RUSSELL: Yes.
MR. BRENNAN: And it was a neck wound from which she bled.
DR. RUSSELL: Yes.
MR. BRENNAN: Very unlike what you're looking at here.
DR. RUSSELL: Yes. But that's very typical of an article, scientific article. They will present a case study and then present the research behind what they have seen in other articles and make recommendations.
MR. BRENNAN: I'm not asking you to defend that it's different. I'm asking you if it is different.
DR. RUSSELL: Oh, it is different.
MR. BRENNAN: Very different, isn't it?
DR. RUSSELL: Yes.
MR. BRENNAN: That neck wound.
DR. RUSSELL: Yes.
MR. BRENNAN: Extraordinarily different.
DR. RUSSELL: Yes.
MR. BRENNAN: And so when you read this, let me ask you a couple questions. In this article, it talks about the characteristics of dog bites, doesn't it?
DR. RUSSELL: Yes.
MR. BRENNAN: And it talks about the maxillary teeth distal to the mandibular teeth allow the so-called scissor bite.
DR. RUSSELL: Yes.
MR. BRENNAN: So, when a dog clamps down, the teeth kind of go to the side to tear the skin.
DR. RUSSELL: I didn't interpret it that way.
MR. BRENNAN: No. Okay. A scissor bite is when a dog bites down.
DR. RUSSELL: Yes. I believe that what they were describing was the dog bites down and when it bites down it anchors. That means teeth on the bottom penetrate — puncture.
MR. BRENNAN: Yes, they can, but they don't always puncture. And then the top is a puncture. If you're going to scissor, it requires a puncture, doesn't it?
DR. RUSSELL: It's a mechanism. It's a movement — what they're describing is a move. In the way I read it, the way they described it is a movement like a scissor where it's open and it's closed. It doesn't mean anything about how deep they penetrate.
MR. BRENNAN: There are no scissor bites on that wound, are there?
DR. RUSSELL: I don't know. I see one or two things that show up what I think might be upper and lower. So, it could be.
MR. BRENNAN: Would you define any of those abrasions as scissor bites, Dr. Russell?
DR. RUSSELL: We talked earlier about how these marks here may be lower. I'm not going to define it. No, I can't say for sure that there's a scissor bite, but I see things that appear to be characteristics of upper and lower teeth.
MR. BRENNAN: I'm asking you about scissor bites. Please listen to my question. There is nothing on that wound that is consistent with scissor bites, is there?
DR. RUSSELL: I don't know.
MR. BRENNAN: Well, you're the expert. When you look at that, can you point whether there's any wounds that are consistent with scissor bites?
DR. RUSSELL: According to their definition, and that's not an accepted definition, but according to what they were describing, and I believe what they meant was an open and closing of the jaw as the scissor activity. I believe that there's possibly two areas where I see that.
MR. BRENNAN: You're now saying this article that you relied on on redirect examination is not an accepted authority.
DR. RUSSELL: I'm not saying it's not an accepted authority. It is a peer-reviewed article.
MR. BRENNAN: The injuries caused involve a combination of biting, crushing, and tearing. Do you see any crushing or tearing in those abrasions?
DR. RUSSELL: There's no crushing or tearing here, but that does not mean that there has to be crushing or tearing.
MR. BRENNAN: I'm reading your article. I'm just reading verbatim and asking you about it.
DR. RUSSELL: Yes. And I'm trying to explain so that nobody misunderstands this — crushing and tearing that result in characteristic pattern of punctures.
MR. BRENNAN: A puncture is when a tooth penetrates the skin and there's some depth to it. Correct?
DR. RUSSELL: Yes.
MR. BRENNAN: Show me one puncture — anyone — on that wound.
DR. RUSSELL: There are no punctures on this arm that I see. However, again, the wounds don't have to have every single characteristic. It depends on the force of the bite how the wounds are going to appear.
MR. BRENNAN: The injuries caused involve a combination of biting, crushing, and tearing that results in a characteristic pattern of punctures, lacerations, and avulsions. There are no punctures whatsoever in that wound. Would you agree with me?
DR. RUSSELL: I agree.
MR. BRENNAN: There are no lacerations in that wound. Would you agree with me?
DR. RUSSELL: I agree.
MR. BRENNAN: There are no avulsions in that wound. Would you agree with me?
DR. RUSSELL: I agree.
MR. BRENNAN: I'm just asking you the question, Dr. Russell. So you can maybe ask where specifically this study says the injuries involve a combination of biting, crushing and tearing that result in a characteristic pattern of punctures, lacerations and avulsions. They name three things that are characteristic traits of a dog bite. And you would agree not one of those three traits is present on the arm of Mr. O'Keefe. Would you agree with me?
DR. RUSSELL: I agree. However, in that case, those were dog bites that killed the victim. In this case, we do not believe that these dog bites killed the victim.
MR. BRENNAN: When they were discussing this article on the victim who was killed, do you realize when they were giving background, this background has nothing to do with the case study. This is general background I just read. Do you realize that they were investigating fatal dog bites? Do you realize that is not qualified in this article? You realize that?
DR. RUSSELL: I realized that they were commenting on fatal dog bites. This is not a case of a fatal dog bite.
MR. BRENNAN: This article, I'm going to show it to you. May I approach?
JUDGE CANNONE: Yes.
MR. BRENNAN: In the highlighted paragraphs that Mr. Alessi had you read, that is describing the background of dog bites, not this fatal attack. Would you agree with me?
DR. RUSSELL: The title of the — No, I don't agree.
MR. BRENNAN: Okay. I move to introduce this as an exhibit, please. Mr. Alessi.
MR. ALESSI: Is it 210?
MR. BRENNAN: In the other article that you read from that was highlighted as well. Who highlighted the portions you were to read?
DR. RUSSELL: Mr. Alessi.
MR. BRENNAN: It describes that teeth from a canine create a stab wound like skin laceration. They can do that, right?
DR. RUSSELL: They can do that.
MR. BRENNAN: Do you see any stab-like wound lacerations to Mr. O'Keefe's arm?
DR. RUSSELL: No.
MR. BRENNAN: It talks about punctures and again we've discussed this. There are zero punctures on Mr. O'Keefe's arm.
DR. RUSSELL: Correct. Correct.
MR. BRENNAN: You said that when somebody is in a collision that they can suffer injuries such as bruising or breaks.
DR. RUSSELL: Yes.
MR. BRENNAN: We've also discussed when a person is impacted by a vehicle, it can result in a variety of different injuries or no injury at all.
DR. RUSSELL: Correct.
MR. BRENNAN: There's a number of dynamic factors involved that are very difficult to assess and predict.
DR. RUSSELL: Correct. Correct.
MR. BRENNAN: And in this case, you did not do any accident reconstruction to try to identify the details of the mechanism of injury to John O'Keefe. Did you?
DR. RUSSELL: I did not do accident reconstruction.
MR. BRENNAN: And so having not done accident reconstruction, would you agree it's fair to say that you are not in an informed position to give an opinion as to how the injuries could or would have happened in this case.
DR. RUSSELL: I disagree.
MR. BRENNAN: Specifically, you were asked questions about the impact or collision in this case. How fast was the defendant's Lexus traveling when there may have been an impact in this case?
DR. RUSSELL: I understand possibly 24 miles an hour.
MR. BRENNAN: Who picked that number?
DR. RUSSELL: I have no idea.
MR. BRENNAN: Well, you heard it from somewhere and you've just given an opinion on it. Where is that number committed to or derived from?
DR. RUSSELL: I don't know.
MR. BRENNAN: Well, if you're going to give an opinion based on what you're portraying as facts to this jury, you should have some certainty about the source of your material, shouldn't you?
DR. RUSSELL: You know, I'm an ER doctor. So, in the ER, I've treated thousands of motor vehicle accident cases and most of the time I do not know what speed the vehicles were going at. I've never done accident reconstruction. I don't know any ER doctor that does accident reconstruction or is trained in accident reconstruction. It's not part of the job.
MR. BRENNAN: I totally agree, but you're giving opinions on behalf of Mr. Alessi, and that's why I'm pressing you on these issues.
MR. ALESSI: Objection.
MR. BRENNAN: Do you know — you don't know the movement of John O'Keefe before any potential strike or collision, do you?
DR. RUSSELL: I don't know the movement of most of the patients I've seen in my life before or immediately after the impact.
MR. BRENNAN: Of course, you wouldn't know the body angle because you weren't there, right? So, when you're asked to give an opinion whether this was a clip or a direct strike, you're really not in a position, having not been an accident reconstructionist and not having been there to give that type of information, are you?
DR. RUSSELL: I wasn't asked to give an opinion about whether this was a clip or direct strike. I was asked to give an opinion about whether these wounds were caused by a motor vehicle collision.
MR. BRENNAN: You would agree with me you are not in a position based on your opportunity to view evidence and your experience to give an opinion about what injuries would have occurred in this event?
DR. RUSSELL: No, I disagree.
MR. BRENNAN: And so, you think you can give an opinion about the extent of injuries even though you are agreeing not only you're not an accident reconstruction expert, you have no idea about the details of the collision in this case. Dr. Russell, is that true?
DR. RUSSELL: I have no details about the collision, about what happened during the collision.
MR. BRENNAN: You have no details about the body movement, the placement, the speed. You don't have any details that you know
DR. RUSSELL: Probably. Yes.
MR. BRENNAN: You mentioned bruising. What do you do to treat for a bruise? If someone has some type of pressing and the bruise before it really forms, what's the best way to treat it?
DR. RUSSELL: Well, it depends on the bruise. It depends on the location. It depends on whether or not there's continued bleeding in the soft tissues. It depends on whether there's compression of the blood vessels and the nerves underneath. And then, and of course
MR. BRENNAN: You ever prescribe ice?
DR. RUSSELL: Oh yes.
MR. BRENNAN: So if a person was lying prone in the cold winter on the front yard on the dirt and was being covered by snow, sub-32 degrees, and the body temperature were to drop from 98.6 to about 80 degrees, would that have a similar effect to ice on the area that may bruise?
DR. RUSSELL: Not exactly. Would you like me to explain?
MR. BRENNAN: I do. Okay.
DR. RUSSELL: Yes. So, as the snowflakes fall, yes, there will be a gradual lowering of the body temperature
MR. BRENNAN: Assume the weather is so cold that the cell phone battery on someone's iPhone begins to plummet regularly in degrees.
DR. RUSSELL: I have no idea.
MR. ALESSI: Objection, your honor.
JUDGE CANNONE: The objection is sustained. Thank you.
MR. BRENNAN: When you came to your conclusion considering what you see in this picture, and Mr. Alessi was asking you about fragments from a broken tail light — did you know or consider that Mr. O'Keefe, sometime around when he incurred these wounds, had a piece of glass stuck in his nose?
MR. ALESSI: Objection.
JUDGE CANNONE: Sustained.
MR. BRENNAN: Finally, Dr. Russell, you said during your differential diagnosis you consider information. You either weigh it, accept it, or you distinguish it and you disregard it. Correct.
DR. RUSSELL: Generally. Yes. Generally during your differential diagnosis, you've referred to a number of different people's studies, things that you haven't done yourself, but you've looked at other people's efforts.
MR. BRENNAN: One of the things you looked at was the deputy medical examiner from the Forensic Pathology Investigation Division of the Armed Forces, a person by the name of John C. Walsh. Correct.
MR. ALESSI: Objection, your honor.
JUDGE CANNONE: I'm going to allow that.
MR. BRENNAN: You like me to ask that again, Dr. Russell?
DR. RUSSELL: No, you don't have to ask it. I read that report. Yes.
MR. BRENNAN: And John C. Walsh is a doctor, correct?
DR. RUSSELL: I imagine. Yes, that's what it says.
MR. BRENNAN: And do you have any understanding that he works with the forensic pathology investigations division of the armed forces?
DR. RUSSELL: Yes.
MR. BRENNAN: And therefore his practice may be limited in scope.
DR. RUSSELL: Well, you are trying to qualify what he doesn't
DR. RUSSELL: Typically the medical examiners that work for the armed forces often have a specific practice that is limited in scope.
MR. BRENNAN: Do you know anything about Mr. Walsh and his practice?
DR. RUSSELL: No.
MR. BRENNAN: Why do you find the need to try to undermine the extent of his authority before you know anything? Why is that important?
MR. ALESSI: Objection.
JUDGE CANNONE: Sustained.
MR. BRENNAN: You don't know what his scope and practice is, do you?
DR. RUSSELL: No, but I always look at where the person works that writes a report, in terms of physicians and what their possible experiences are. Do they work in a medical examiner's
MR. BRENNAN: When you considered his opinions after his review of these materials, did you consider when he offered in his report that multiple abrasions ranging in size from 2 to 3 millimeters up to 7 cm were documented on the decedent's right arm? Yes, these injuries do not photographically appear to be nor are described as puncture bite wounds and thus are highly unlikely to be the result of an animal bite attack. The abrasions are non-specific. Abrasions occur as the body moves over a blunt or rough surface such as a skinned knee. Did you
DR. RUSSELL: I did. However, I don't know if he's ever had any experience with dog bite examinations. So I had to consider that and weigh it.
MR. BRENNAN: I have no further questions.
JUDGE CANNONE: Okay.
MR. ALESSI: Dr. Russell, there were questions with regard to highlighting of articles. Did I determine which parts were to be highlighted, or did I merely perform the function of highlighting the parts you wanted me to highlight because you didn't have a highlighting function with you traveling from California?
DR. RUSSELL: That is correct. It's the second one. With regard to these articles, you mentioned a methodology in
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained as to the form.
MR. ALESSI: Dr. Russell, what is the purpose? Let's just start with the Dunich article that was talked about, because these articles were discussed. What was the purpose of you citing those articles?
DR. RUSSELL: The purpose was to identify that pattern recognition is an important component in identifying wounds, and particularly in dog bite wounds. It did not mean that the victim had to have every single characteristic that was listed. It was focusing on things to look for and the patterns. It was not just that there's one individual wound that's going to be diagnostic, but that there are patterns for the physician to look for.
MR. ALESSI: In terms of — attorney Brennan asked you — oh, and so now with regard to the Pollock article — in terms of the Pollock article, is there any discussion in this article about whether the spectrum of injuries to which you can apply the mechanism in the methodology? Is there anything in there about whether the pattern of injuries can be diverse or whether they're all the same? Does Pollock speak to that?
DR. RUSSELL: He does.
MR. ALESSI: And what does Pollock say about whether or not the spectrum of possible injury forms, when you apply this methodology, can be diverse? What does he say?
DR. RUSSELL: Well, he mentions the actual surface of the body that is impacted, if there's any curvature to that surface, if there's any structures underneath that would affect the bite, and if there was material or textiles or fabric that were in between the bite and the skin, and there were other factors too.
MR. ALESSI: Okay. Thank you. Now lastly, what I'd like to cover is attorney Brennan discussed Dr. Walsh. May I approach, your honor?
JUDGE CANNONE: Okay.
JUDGE CANNONE: Why don't you bring the reports over?
PARENTHETICAL: [Inaudible.]
JUDGE CANNONE: Proceed.
MR. ALESSI: Did you show Mr. B—? He's the one who gave me —.
JUDGE CANNONE: Okay. I didn't know what you had. Yes. Thank you.
MR. ALESSI: So, may I hand the witness? May I stand here, your honor?
JUDGE CANNONE: Yes. Just step back a little bit. Yep.
MR. ALESSI: Dr. Russell, what I would like to do is to give the jury a fair —.
PARENTHETICAL: [Inaudible.]
JUDGE CANNONE: So, are you going to step up, Mr. P—?
PARENTHETICAL: [Inaudible.]
MR. ALESSI: Yes. Thank you, Dr. Russell. I am rehanding you this letter from Dr. Walsh, and what I am going to do — you just tell me if I do it correctly. I'm just going to read two paragraphs. Okay? And you just tell me if I'm reading it correctly. "In totality, the injuries documented in the autopsy report and photographs are non-specific and may be the result of a variety of different mechanisms. No additional information was provided regarding the possible circumstances or events surrounding the death. The absence of additional information prohibits the attribution of injuries and contribution of findings to a specific underlying cause of death." Did I read that correctly?
DR. RUSSELL: Yes.
MR. ALESSI: No further questions, your honor.
JUDGE CANNONE: Thank you, Dr. Russell. All right, Dr. Russell, you are all set.
DR. RUSSELL: Thank you.
JUDGE CANNONE: I'm going to have this marked for identification. Thank you.