Commonwealth v. Read — Trial ArchiveDaniel Wolfe — Cross
1,156 linesCROSS-EXAMINATION BY MR. BRENNAN:
MR. BRENNAN: Good afternoon, Dr. Wolfe.
DR. WOLFE: Good afternoon.
MR. BRENNAN: When you testified on direct, you shared with the jury some of the work that ARCCA does.
DR. WOLFE: Correct.
MR. BRENNAN: Do you remember that?
DR. WOLFE: Yes.
MR. BRENNAN: And you had mentioned a couple of interesting things that you've done some work with the Department of Defense?
DR. WOLFE: Correct, yes.
MR. BRENNAN: The work with the Department of Defense, was that during your time or before you got there?
DR. WOLFE: That would have been prior to my employment, yes.
MR. BRENNAN: So when you were telling them about working with the Department of Defense, that really had nothing to do with you, that was ARCCA before you began working with them?
DR. WOLFE: ARCCA as a whole, yes, the work that we do, yes.
MR. BRENNAN: Not you.
DR. WOLFE: As I said, I wasn't involved specifically in that project, no.
MR. BRENNAN: And you mentioned that you did some stuff or your company does some things for the NHL?
DR. WOLFE: Yes.
MR. BRENNAN: You didn't tell us much more about what you do. There's other things that ARCCA does as far as clients, right?
DR. WOLFE: Certainly.
MR. BRENNAN: Did you share with us that you worked for lawyers and law firms?
DR. WOLFE: Yes, we do.
MR. BRENNAN: And you do litigation for insurance companies?
DR. WOLFE: Yes.
MR. BRENNAN: Is there any reason why you highlighted the Department of Defense that you don't do and the NHL, but you did share the rest of the stuff with us?
DR. WOLFE: That's just some of the prominent clients that we have.
MR. BRENNAN: Thank you. You provided a CV, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: And that's like a resume and tells us a little bit about your education, experience, you even highlight some of the things, your accomplishments?
DR. WOLFE: Yes.
MR. BRENNAN: You shared with us you've been the director of accident reconstruction at this company ARCCA since 2017?
DR. WOLFE: No, no, not since I started.
MR. BRENNAN: You started with ARCCA in 2017?
DR. WOLFE: Correct, yes.
MR. BRENNAN: When did you become the director of accident reconstruction?
DR. WOLFE: I think that would have been in in January 2024, so about a year and a half.
MR. BRENNAN: About a year and a half ago?
DR. WOLFE: Yes.
MR. BRENNAN: And you received your certification from ACTAR?
DR. WOLFE: Yes.
MR. BRENNAN: Did you pass the test on both parts the first time?
DR. WOLFE: I don't recall. I think it was the -- I had to retake I think the practical session in the afternoon.
MR. BRENNAN: You would recall something like that, wouldn't you? Did you pass both parts on the first try?
DR. WOLFE: Like I said, I think it was the second part I had to retake.
MR. BRENNAN: Well, this is a pretty important test, isn't it?
DR. WOLFE: Not really.
MR. BRENNAN: It's your certification.
DR. WOLFE: It is, but much of the concepts that are covered in it are very elementary.
MR. BRENNAN: Well, not so elementary. You had a hard time with part of it, didn't you?
DR. WOLFE: Well, with respect to the portion that I had to retake, it's a practical example where you have to reconstruct an accident, where you have to determine approach angles, departure angles, and it can be very sensitive to those inputs, and unfortunately, if you mess up one of your first angles and you carry out that calculation, then the whole problem is created wrong, even if you did all the math correct.
MR. BRENNAN: So we understand, it's the multiple-choice question part that's the easier part, correct?
DR. WOLFE: I don't know if it's easier, but there is a multiple part, a multiple-choice part.
MR. BRENNAN: There's a more practical part where you actually have to go out in the field and do assessments. It's kind of like the things that you did today.
DR. WOLFE: You don't go out into the field, no.
MR. BRENNAN: And when did you first take that second part that you took the test?
DR. WOLFE: I don't recall.
MR. BRENNAN: You don't remember when you took the test?
DR. WOLFE: No, I don't.
MR. BRENNAN: Suffice to say you took it again?
DR. WOLFE: Correct.
MR. BRENNAN: And ultimately, you passed both sections of that test?
DR. WOLFE: Yes.
MR. BRENNAN: In your CV, you listed your schooling and you list your degrees, don't you?
DR. WOLFE: Yes.
MR. BRENNAN: You mentioned some the things that you focused on your academic experience, don't you?
DR. WOLFE: Yes.
MR. BRENNAN: And you have publications?
DR. WOLFE: Correct.
MR. BRENNAN: Recenty, you did a publication regarding vehicle control history on Toyotas?
DR. WOLFE: Correct.
MR. BRENNAN: Vehicle control history is data that is stored in a vehicle?
DR. WOLFE: Yes.
MR. BRENNAN: And Toyota owns Lexus, correct?
DR. WOLFE: Correct.
MR. BRENNAN: So you have familiarity with vehicle control history, in fact, you have a publication on it?
DR. WOLFE: Yes.
MR. BRENNAN: In your entire resume, you only mentioned pedestrian collisions or that you were involved in pedestrian type events three times. Is there anything specific in your resume or your publications that show a published accomplishment, for example, in pedestrian collisions? Do you have any publications that have been peer-reviewed or published in that area?
DR. WOLFE: No, I don't have any publications in pedestrians.
MR. BRENNAN: You write or you note areas of specialties and you list a bunch: accident reconstruction, human factors, EVR, commercial vehicle, HVEDR, pedestrian bicycle accidents, nighttime visibility, and a number of others, correct?
DR. WOLFE: Correct.
MR. BRENNAN: Is there anywhere in your resume that notes particular classes that you've attended and completed regarding pedestrian collisions?
DR. WOLFE: No, I haven't taken any classes in that.
MR. BRENNAN: You haven't taken any classes on pedestrian collisions?
DR. WOLFE: No.
MR. BRENNAN: Have you ever taught regarding pedestrian collisions?
DR. WOLFE: No.
MR. BRENNAN: Have you ever been a speaker in a presentation about pedestrian collisions?
DR. WOLFE: Yes.
MR. BRENNAN: And is that listed in your resume?
DR. WOLFE: I don't list lectures or presentations, no.
MR. BRENNAN: You were asked questions about your involvement in this case, yes?
DR. WOLFE: Yes.
MR. BRENNAN: And you had shared with us that you, at the beginning, were working for a separate party or a third-party you said?
DR. WOLFE: Yes, another agency.
MR. BRENNAN: Another agency. And at some point, you came into court and testified last year?
DR. WOLFE: Yes.
MR. BRENNAN: And during the time before you came in and testified, you weren't wholly independent of the defense, were you?
DR. WOLFE: Well, certainly before all of our testing at the point in which we did all of our testing, reported analysis, as I mentioned on direct, I didn't know the Commonwealth or the defense in this case.
MR. BRENNAN: My question more precisely, before you testified, before you came into court and gave your testimony, you weren't totally independent from the defense, were you?
DR. WOLFE: No, I mean I had to communicate with them to be able to determine when to appear for testimony.
MR. BRENNAN: So you were communicating with them, yes?
DR. WOLFE: Yes.
MR. BRENNAN: And in fact some of the time that you spent, ARCCA actually billed the defense for and they paid that bill, didn't they?
DR. WOLFE: Eventually, after the trial, yes.
MR. BRENNAN: During that time -- you know what a sequestration order is, don't you?
DR. WOLFE: Yes.
MR. BRENNAN: Do you think that you're under a sequestration order today?
DR. WOLFE: Yes.
MR. BRENNAN: Did you talk to anybody about any of the prior testimony in this case before today?
DR. WOLFE: No.
MR. BRENNAN: How did you get here today?
DR. WOLFE: How did I get here today?
MR. BRENNAN: Yes.
DR. WOLFE: I took a car ride over from the hotel.
MR. BRENNAN: Who drove you?
DR. WOLFE: It was a driver. I don't know his name.
MR. BRENNAN: Who set up the car?
DR. WOLFE: It was -- it would've been someone on the defense team.
MR. BRENNAN: Was it like a limo?
DR. WOLFE: It was an SUV.
MR. BRENNAN: Was there anybody from the defense with you on the ride over?
DR. WOLFE: There were three young ladies in the backseat. I think they might've been interns and Mr. Wolk.
MR. BRENNAN: And who?
DR. WOLFE: Mr. Wolk. I think is it pronounced? Am I saying it wrong?
MR. BRENNAN: Have you discussed anything about this case before your testimony today as far as the trial?
DR. WOLFE: Before today?
MR. BRENNAN: Yes.
DR. WOLFE: Yes.
MR. BRENNAN: Have you discussed anybody's testimony in this case?
DR. WOLFE: Nobody's testimony, no.
MR. BRENNAN: That was different last year, though, because you testified last year, you did have discussions about testimony, didn't you?
DR. WOLFE: Not with the Commonwealth or the defense, no.
MR. BRENNAN: That's not what I'm asking, though. You did have discussions about testimony before you testified last year, right?
DR. WOLFE: Correct, yes.
MR. BRENNAN: And you know what a sequestration order is, don't you?
DR. WOLFE: Yes.
MR. BRENNAN: After you testified last year, the Court ordered you to provide all your text messages, all your communications with the defense, didn't they?
DR. WOLFE: Yes, earlier this year.
MR. BRENNAN: And when you were ordered to provide all of the actual verbatim communications with the defense, did you provide those communications?
DR. WOLFE: Yes, all of the records that I had at the time, I provided.
MR. BRENNAN: Well, not the records. You know what I'm getting at. Did you provide the communications?
DR. WOLFE: I provided everything I had in my possession, sir.
MR. BRENNAN: A text message isn't just a time and date. There's actually substance when you text somebody, isn't there?
DR. WOLFE: Correct.
MR. BRENNAN: And when you texted, how many texts do you think that you had the defense?
DR. WOLFE: From what I recall, I think it was around 50 texts that I sent.
MR. BRENNAN: It wasn't 100, you think it was 50?
DR. WOLFE: Well, I think was around 100 total in terms of back- and-forth, but it was I think 50 that I sent.
MR. BRENNAN: And during those texts, there's communications, conversations, correct?
DR. WOLFE: About logistics, yes.
MR. BRENNAN: Did you provide the content of those text messages when you were ordered to by the Court?
DR. WOLFE: Well, those text messages span from, I guess it would've been, April or so of 2024 through May to June of 2024. Ultimately, I think I received the Court's order in May of this year, April of this year. So it was a year after-the-fact and I had already deleted the texts at that point.
MR. BRENNAN: How many of those text messages did you delete?
DR. WOLFE: I just swiped the conversation so it would have been the whole conversation.
MR. BRENNAN: Not how you did it. How many of those 100 or so text messages did you delete, sir?
DR. WOLFE: It would've been the whole text chain. I didn't individually delete them. It just when you swipe, it just deletes the text chain.
MR. BRENNAN: After you deleted them, did you go into the recently deleted and then re-delete them so they were unavailable?
DR. WOLFE: I don't recall doing that.
MR. BRENNAN: Well, when you were asked to search your records for the text messages, did you do a thorough search to see whether you still had them or whether you destroyed them all?
DR. WOLFE: I checked my phone, and I also checked with my phone carrier.
MR. BRENNAN: So do you know if they were under the recently deleted part of your phone, or did you go and take that extra step and totally destroy them?
DR. WOLFE: From what I recall, I did not find any of the text messages, no.
MR. BRENNAN: Is there any reason why you deleted all of your text communications with the defense?
DR. WOLFE: Well, it's something that I routinely do. I work with attorneys and clients all the time, whether it's appearing for trial or inspections, and I don't have a habit of keeping the text chain that talks about logistics and things. It's just I routinely delete them after that communication is over with, and certainly after the prior proceeding, once it had concluded, there was no reason for me to preserve those.
MR. BRENNAN: Okay. And so at some point, you switched from text messages to another form of communication, didn't you?
DR. WOLFE: Yes, earlier this year.
MR. BRENNAN: And tell us a little bit about this new form of communication not text messages?
DR. WOLFE: So Mr. Jackson had indicated that he and his defense team utilized an application known as Signal for their communications amongst their defense team. Ultimately asked if I would also use that application to communicate, which I agreed to.
MR. BRENNAN: Is Signal an encrypted act?
DR. WOLFE: It's a secure encrypted app, yes.
MR. BRENNAN: It doesn't leave any records, right?
DR. WOLFE: I don't believe so, no.
MR. BRENNAN: Well, you have it. You're using it. Do you have any records from your Signal use?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to all that?
MR. BRENNAN: Do you have any records from your Signal use?
DR. WOLFE: I do not, no.
MR. BRENNAN: So you know full well that Signal is an encrypted app, it leaves no record?
DR. WOLFE: There maybe a setting that you can change. I just know that the way it was set up there was no record.
MR. BRENNAN: When you set yours up, you had no record?
DR. WOLFE: I don't know. I think it was default.
MR. BRENNAN: Have you ever checked your Signal app to see if you have any record of your communications pursuant to that court order?
DR. WOLFE: Well, I don't have the application anymore, but at the time, I did check the application.
MR. BRENNAN: Out of all these clients that you've had, how many times or how many clients do you use Signal with?
DR. WOLFE: This was the first time.
MR. BRENNAN: Have you used it since with other clients?
DR. WOLFE: Not yet, no.
MR. BRENNAN: Before you testified the last time, at the last proceeding, or should I say when you testified at the last proceeding, kind of like today, you attempted to portray yourself as totally independent, didn't you?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained in that form.
MR. BRENNAN: When you testified at the prior proceeding, did you attempt to portray yourself as totally independent?
DR. WOLFE: Yes.
MR. BRENNAN: The truth is before you testified, you were communicating with the defense and attempting the best you could to assist their cause, weren't you?
DR. WOLFE: I wouldn't characterize it that way.
MR. BRENNAN: So before you testified you wrote out questions that you thought could help that you should be asked when you testified, correct?
DR. WOLFE: So something I routinely do before testifying is prepare an outline of topics and questions that would best help be able to get out my opinions and analysis I undertook ultimately so that you all have an understanding of what I did.
MR. BRENNAN: So I'm asking you a question. You gave the explanation, but you're skipping over the answer to my question.
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. BRENNAN: So I'll ask you again, before you testified did you write out a list of questions that you wanted to be asked?
DR. WOLFE: Yes.
MR. BRENNAN: And when you listed out the questions, you also listed out the answers, didn't you?
DR. WOLFE: A general response. It wouldn't be verbatim to that.
MR. BRENNAN: I didn't see verbatim, but did you list out the answers to each and every one of the questions that you had prepared?
DR. WOLFE: Yes.
MR. BRENNAN: So for every question, there's an answer that you provided so that you could follow a script so to speak, yes?
DR. WOLFE: I wouldn't characterize it as a script.
MR. BRENNAN: One of the questions asks, "So not being able to inspect vehicles is something that is not uncommon in your line of work?" And your answer, "Absolutely not." You remember writing that out?
DR. WOLFE: Yes.
MR. BRENNAN: And then you put a footnote, a comment, and you said, "Not sure if you want to put this somewhere in the direct examination. I have a feeling they are going to argue I didn't personally inspect the vehicles. I had enough information from the material I reviewed so it wasn't necessary. Need to show the jury it doesn't matter in this case." Did you write that?
DR. WOLFE: Yes.
MR. BRENNAN: And when you're talking about they, "I have a feeling they are going to argue it. I didn't personally inspect the vehicle," who is they?
DR. WOLFE: That would be the Commonwealth.
MR. BRENNAN: And so when you were writing out these questions as is your routine, with the answers, is this the mark of independence to you?
DR. WOLFE: Well, I think again, whether the Commonwealth asked me that question or the defense asked methat question, my response would be the same. It wouldn't change depending on who called me to testify. There are a number cases by the time I get involved that the evidence has gone from the roadway. The vehicle is gone. So it's certainly not necessary to inspect a vehicle, and I wanted the jury to have an understanding that because I didn't physically inspect the vehicle, it didn't affect my analysis in the case.
MR. BRENNAN: So you think that showed independence?
DR. WOLFE: Yes.
MR. BRENNAN: And then you also had another question. "Would it be fair to say because you do a lot of nighttime visibility work in cases frequently involving pedestrians." Do you remember that?
DR. WOLFE: Yes.
MR. BRENNAN: And you said, "Yes. Unfortunately, there is a direct correlation between time of day and pedestrian fatalities." Is that true?
DR. WOLFE: Correct, yes.
MR. BRENNAN: And they happen more often in the day or at night?
DR. WOLFE: More often at night, yes.
MR. BRENNAN: Statistically speaking -- and by the way, this case involves nighttime, doesn't it?
DR. WOLFE: Correct.
MR. BRENNAN: "Statistically speaking, most pedestrian fatalities occur during the evening and night hours. So my specialty in the area of lighting and human factors results in a lot of my cases involving pedestrians?" Did you write that?
DR. WOLFE: Yes.
MR. BRENNAN: As a matter fact when you testified you shared that with the jury, didn't you?
DR. WOLFE: Correct. I've testified to that twice last year as well as this year.
MR. BRENNAN: In the notes that you wrote when you shared it last year and this year, was it an important point for the jury?
DR. WOLFE: I think so because it helped give -- aid them in understanding of my background of lighting and human factors, and as I mentioned earlier today, there's a direct correlation between time of day and pedestrian impacts, right. So my specialty in lighting and human factors results in me seeing many, many different types of pedestrian impacts.
MR. BRENNAN: So if it's important, why would you include a note, "If you don't want me to say this, that's fine." Why did you include a note to the defense that if they didn't want you to say something, that you thought was important, you would leave it out?
DR. WOLFE: Well, I didn't -- because I didn't want to confuse the jury about the statistic that just because we have inclement weather and dark lighting conditions, it doesn't automatically equal a pedestrian impact. Right. We have to look at the evidence and the damage to the vehicle and the injuries to determine whether or not the collision occurred, not the visibility.
MR. BRENNAN: So you weren't trying to mislead the jury? You were trying to help them because they wouldn't understand something you were trying to explain. Is that why you're phrasing this?
DR. WOLFE: I think at the end of the day, it was to help them understand my background, how it relates to seeing a lot of pedestrian impacts.
MR. BRENNAN: If something that's important and it helps the jury get to the truth, why would you offer to leave it out?
DR. WOLFE: Well, I didn't leave it out.
MR. BRENNAN: No, but you offered to. You would have if requested. Why did you invite -- excuse me -- why did you invite somebody else to interject in your independence and guide you to leave something out? Why did you provide that information to them?
DR. WOLFE: Again, because I didn't want them to get hung up on a statistic that just because we have more pedestrian impacts at night and in bad weather, that this alleged incident happened at night under bad weather to give it more weight, to weigh the evidence more because of that statistic.
MR. BRENNAN: Are you done?
DR. WOLFE: Yes.
MR. BRENNAN: If you make a mistake in court, under oath, would you take the affirmative step on your own and correct that mistake?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
DR. WOLFE: I would do my best to do that, yes.
MR. BRENNAN: When you say do your best, would you do that if you became aware of it?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it.
DR. WOLFE: Yes.
MR. BRENNAN: Before you testified in the preceding last year, there was a hearing that you testified in front of Her Honor and other people that were here, correct?
DR. WOLFE: Correct.
MR. BRENNAN: I wasn't here?
DR. WOLFE: No.
MR. BRENNAN: You were?
DR. WOLFE: Yes.
MR. BRENNAN: And you testified about your experience, didn't you?
DR. WOLFE: Correct, yes.
MR. BRENNAN: As you were sharing your experience with the Court, it was important for the Court to have an accurate understanding of what your experience was because it was being evaluated at that hearing, wasn't it?
DR. WOLFE: Correct.
MR. BRENNAN: And when you testified to the Court, you testified that you had been qualified as an expert to testify over 20 times, didn't you?
DR. WOLFE: I don't have the transcript. I believe I said approximately 20 times.
MR. BRENNAN: The reality is you hadn't. You've only testified and been qualified 11 times at that point?
DR. WOLFE: Correct. I misunderstood the question. I thought it also encompassed depositions so I added those to and approximated at 20.
MR. BRENNAN: And at some point when you realized you made a mistake in your testimony to the Court, you had a chance to come back when you testified last year and fix it to clarify the record, didn't you?
DR. WOLFE: Correct, which is why I provided a comment with the specific breakdown for clarification.
MR. BRENNAN: And when you came back and you testified under oath the second time, on the record under oath, did you clarify or fix your mistaken testimony that you provided and stated for the record?
DR. WOLFE: I don't recall being asked the question, no.
MR. BRENNAN: The question wasn't whether you were be asked. The question is did you take the affirmative step to fix the mistake that's under oath that you made?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it.
MR. JACKSON: Can we approach?
JUDGE CANNONE: Sure.
(Sidebar commences:
MR. JACKSON: I don't know what an affirmative step is.
DR. WOLFE: witness can't just affirmatively take steps. They have to be asked a question. He said he wasn't asked the question, which is fair --
JUDGE CANNONE: What do you say?
MR. BRENNAN: He knew about it, he acknowledged the mistake and he did nothing to correct it. So he left the Court with the impression that he had more experience than he really did. It's puffery or it's mistake, that's unchecked. Either way, he should have said it. He knew he made a mistake he would make an affirmative effort to fix it. He didn't do that.
MR. JACKSON: You have to be able to the ability to make an affirmative -- he's made his point, which is fair, but you can't take it a step further and say, "You should have stood up here, and said, 'I want to talk about something that I want to talk about.'"
JUDGE CANNONE: So you can do something else with --
MR. BRENNAN: I'll finish the --
JUDGE CANNONE: -- but I agree with Mr. Jackson --
MR. BRENNAN: -- and I'll move on.
end of sidebar.)
MR. BRENNAN: After your first testimony, you appreciated that you made a statement under oath that was wrong, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: In fact, you made a note, "I realized in my testimony I said about 20 times when you asked how many times I'd been qualified. I misinterpreted your question, which is my fault. I was looking at my D and T list. It's eleven trials, seven depositions, eighteen testimonies total. I'm not sure if you want to clear it up or just leave it." Are those your words?
DR. WOLFE: Yes.
MR. BRENNAN: Did you just leave it?
DR. WOLFE: I'm not responsible for asking the questions, sir.
MR. BRENNAN: Have you ever heard the term confirmation bias?
DR. WOLFE: Yes.
MR. BRENNAN: Do you know what confirmation bias is generally?
DR. WOLFE: Generally, yes.
MR. BRENNAN: Do you think that you suffer from any confirmation bias in this case?
DR. WOLFE: No.
MR. BRENNAN: Do you have any close family that supports one side over the other, not the facts and the data, but one side over the other?
DR. WOLFE: Close family?
MR. BRENNAN: Yes.
DR. WOLFE: Not that I'm aware of, no.
MR. BRENNAN: Your wife?
DR. WOLFE: My wife?
MR. BRENNAN: Yes.
DR. WOLFE: I don't really know what her thoughts are on the case.
MR. BRENNAN: May I approach?
JUDGE CANNONE: Yes.
MR. BRENNAN: Take a look at that document. Have you seen that before?
DR. WOLFE: No, I haven't.
MR. BRENNAN: You've never seen that before?
DR. WOLFE: No, I haven't.
MR. BRENNAN: I'll take it back. You're unaware of anything that may have influenced you to lean one way or another?
DR. WOLFE: Correct.
MR. BRENNAN: When you first took a look at some of the facts of this case, you had some information. Since then you received a lot more, haven't you?
DR. WOLFE: Correct, yes.
MR. BRENNAN: Part of your testimony today for this jury is to provide opinions that you do not think the holes in Mr. O'Keefe's clothes are consistent with some type of collision; is that fair to say?
DR. WOLFE: Yes.
MR. BRENNAN: In coming to that opinion, you relied on some of your testing that we saw in those videos, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: And that testing involves a hybrid three arm?
DR. WOLFE: Correct, yes.
MR. BRENNAN: A hybrid three arm is an arm for a crush dummy?
DR. WOLFE: Yes.
MR. BRENNAN: That's not the technical name, but that's what it's often referred to?
DR. WOLFE: Yes.
MR. BRENNAN: And you and Dr. Rentschler have been working together on this case, haven't you?
DR. WOLFE: Yes.
MR. BRENNAN: You've discussed ideas and shared thoughts?
DR. WOLFE: Yes.
MR. BRENNAN: In fact, you worked so intimately together, you know some of the things he's going to testify when he comes here to testify today, any time today, right?
DR. WOLFE: Yes.
MR. BRENNAN: And so some of the data that you shared and some of the opinions overlap with each other, wouldn't you say?
DR. WOLFE: Certainly. He's going to rely on a lot of that testing, yes.
MR. BRENNAN: When you were forming your opinion about the holes in clothes and potential abrasions to somebody's skin, all of those tests, all of those that you did were using a crash test dummy arm, weren't they?
DR. WOLFE: Yes.
MR. BRENNAN: In your report, you cite or Dr. Rentschler cites three different sources regarding testing, clothing, and skin, correct?
DR. WOLFE: I'm not sure.
MR. BRENNAN: Well, haven't you read his report?
DR. WOLFE: I skimmed it, but I don't know what the basis are for his opinions.
MR. BRENNAN: Did you see footnotes 24, 25, 26, 24 being skin tissue cuttability and its relation to lacerations and severity incidents, did you read that?
MR. JACKSON: Objection, Your Honor.
JUDGE CANNONE: Let's see if there's a foundation.
DR. WOLFE: No, I didn't read that reference.
MR. BRENNAN: Did you read 25 the book --
MR. JACKSON: Objection.
MR. BRENNAN: -- that is cited forensic pathology --
MR. JACKSON: Objection, Your Honor.
JUDGE CANNONE: I'm going to have you come to sidebar.
(Sidebar commences:
JUDGE CANNONE: Okay. What's your offer of proof?
MR. BRENNAN: The offer proof is being they've obviously worked together and shared information. These are all cited in Dr. Rentschler's reports regarding doing testing on clothing and arms for a comparative analysis whether it be abrasions, and all three of these studies using cadavers or sheep wool or skin.
COURT OFFICER: No talking at the sidebar.
MR. BRENNAN: None of them, none of them accept the idea of using a crash test dummy arm. So the basis, the foundation for his opinion is that he can say this is consistent with a collision is faulty based on their own references that they point in their materials in support of it.
MR. JACKSON: It's not their materials. It's Dr. Rentschler's materials. My problem is he's asking this witness to adopt Dr. Rentschler's findings, and he said, "I skimmed his report, but I don't know what his findings are." I have no problem with the foundational question. Obviously, I can't tell Mr. Brennan how to cross-examine, but if the question was, did you review any of the source material that Dr. Rentschler used, I'm guessing, from his first answer, he's going to say no and then we're done. I don't think it's appropriate for Mr. Brennan to start reading the names of the articles or the names of the books or the names of the treatises that he wants to impeach this witness with. There is a witness for this, and that witness is Dr. Rentschler and he's coming.
MR. BRENNAN: I have two things. If he hasn't read it, then I wouldn't read the content. That's why I moved on from 24. But I think he said he's generally familiar but doesn't know, I should be able to read the titles of it because I'm asking him what he knows. If he doesn't know it, I move onto the next one. If he does, I'll start quoting from it. If he denies all of them, then I'll ask him general questions about what is his basis for these, but I'm not going to start reading from 24 where he's already denied that he has any knowledge of it. But I have to read the title to familiarize him.
JUDGE CANNONE: I'm going to let you read the titles. I was concerned that he testified three times this morning, "You're going to hear about that from Dr. Rentschler." So it implies he knows what Dr. Rentschler is doing so there is a good faith basis for this. So I'll allow the titles, and if he is not familiar with them, or doesn't know anything, move on.
MR. BRENNAN: I will. Yes, Your Honor.
end of sidebar.)
MR. BRENNAN: Let me again ask you about this book that is cited in Dr. Rentschler's report. By the way, have you read Dr. Rentschler's report?
DR. WOLFE: As I mentioned, I skimmed through it.
MR. BRENNAN: So in all of your preparation with Dr. Rentschler, you merely skimmed his report? You didn't take time to read and study it?
DR. WOLFE: Well, none of my opinions are based on work that he did. He's undertaken a completely separate aspect of the analysis.
MR. BRENNAN: But that's not the question. The question I asked you was did you in working close with him take the time to study his report?
DR. WOLFE: As mentioned, I've seen it. I didn't read all the references and what he cited. I didn't do that.
MR. BRENNAN: Did you read his report?
DR. WOLFE: I did read the report, yes, but I didn't in depth go through each reference of what he was saying.
MR. BRENNAN: So you read his report?
DR. WOLFE: Yes.
MR. BRENNAN: And when you read his report, did you see there were footnotes for a number of different propositions that he made?
DR. WOLFE: I know that there were footnotes in the report, yes.
MR. BRENNAN: Well, on the issue of whether or not crash test dummies should be used during experiments as a basis for an opinion of whether abrasions can happen through cloth on an arm, wouldn't that particularly interest you since you were going to come in here and testify about it multiple times in front of this jury?
DR. WOLFE: Not sure I understand your question.
MR. BRENNAN: You knew you were going to come in here and suggest to the jury that you thought that these tests were inconsistent with causing any type of holes in clothing similar to Mr. O'Keefe's or abrasions on his arm. You knew that was going to be part of your opinion today, yes?
DR. WOLFE: Yes.
MR. BRENNAN: And as part of forming a valid opinion that people can rely upon, wouldn't you want to do as much study as possible on the background for that opinion before you gave it to a jury?
DR. WOLFE: I suppose, yes.
MR. BRENNAN: Well, you suppose. Don't you think if you come in here as an expert, the jury is relying on your background and education?
DR. WOLFE: Yes.
MR. BRENNAN: And they're relying on the fact that you're representing something definitively or what the opinions to a reasonable degree of certainty, you understand that, right?
DR. WOLFE: Yes.
MR. BRENNAN: And don't you think when you do that, that it's important that you have proper study and foundation before you come into court and give an opinion?
DR. WOLFE: Well, I will note that the ADT crash dummy is a generally accepted test device to use for not only assessing occupant forces in motor vehicle crashes, but also to assess impact forces. So the use of that device is certainly generally accepted.
MR. BRENNAN: When get uncomfortable with my question --
MR. JACKSON: Objection.
MR. BRENNAN: -- do you --
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. Sustained. Mr. Brennan, next question.
MR. JACKSON: I would ask to strike that.
JUDGE CANNONE: Strike that, jurors.
MR. BRENNAN: Let me ask you again. Don't you think as an expert it's important when you come in and you're going to present an opinion based on science or engineering or whatever you want to do that you study the basis for that opinion before you give it?
DR. WOLFE: Yes.
MR. BRENNAN: When you saw in Dr. Rentschler's references to this very issue about what should be used when you're doing a demonstration or a study on what would cause tears in clothing, weren’t you interested in the basis for those opinions?
DR. WOLFE: Well, again it was something where Dr. Rentschler and I worked together, and we were in agreement that we could utilize the ADT arm clothed.
MR. BRENNAN: When you decided, had an agreement that you would use that arm, did you read the book that he cites in support "Forensic Pathology Second Edition, Vincent J. DeMaio." Did you read it?
DR. WOLFE: No, I did not.
MR. BRENNAN: Did you brief it?
DR. WOLFE: No.
MR. BRENNAN: Did you peruse through it at all?
DR. WOLFE: No.
MR. BRENNAN: When you decided to come to this agreement, that's going to have a foundation for your opinions, did you look at footnote 26, "Understanding the acute skin injury mechanism caused by player surface contact during soccer, a survey and systematic review." Did you review that?
DR. WOLFE: No, sir.
MR. BRENNAN: Have you seen any articles that support the proposition that a hybrid three arm on a crash test dummy is appropriate to use when you're trying to provide a foundation for an opinion about whether or not tears can happen to the clothing or to abrasions to skin. Do you have any support for that in your report?
DR. WOLFE: Well, again, Dr. Rentschler is going to be addressing the -- you're shaking your head.
MR. BRENNAN: You keep --
MR. JACKSON: Objection.
JUDGE CANNONE: So I'm going to let him answer the question first, Mr. Brennan.
MR. JACKSON: Thank you.
DR. WOLFE: So as I mentioned, Dr. Rentschler is assessing the injuries to the arm, okay. He indicated to me that we could utilize the hybrid arm to assess the injuries to the arm.
MR. BRENNAN: So you have no independent experience or research or knowledge, not Dr. Rentschler, you, don't have any independent research or science or knowledge to support your idea, your theory, your opinion to this jury about the tears to the clothes and to the skin?
DR. WOLFE: I was relaying the observations from the testing that we conducted with the ATD. Ultimately, like I said, Dr. Rentschler it's my understanding that he will testify to the abrasions or the lacerations to the arm.
MR. BRENNAN: You've given multiple opinions about this to this jury, didn't you?
DR. WOLFE: Correct, yes.
MR. BRENNAN: I'll ask you one more time name -- I'll ask it this way. Name, other than someone called Dr. Rentschler, can you name the papers, the studies, the learned treatise, name the resource materials you relied on as the basis for those opinions that a hybrid three arm can be used in these types of demonstrations for the basis of that type of opinion?
DR. WOLFE: I certainly -- ATD crash test dummies can be used for impact testing, yes.
MR. BRENNAN: Not impact testing. We're talking about tears to clothes, abrasians to skin. Now I'm asking for the third time. Name one journal, one paper, one study that supports your proposition that supports you're relying on and the basis for your opinion in front of this jury today. Name one.
DR. WOLFE: I did not cite any in my report, no.
MR. BRENNAN: Can you think of one that you didn't cite?
DR. WOLFE: Not that I'm aware of, no.
MR. BRENNAN: You had mentioned on direct examination that when you first started looking at materials some time ago, at the beginning, you were unconstrained in the scope of your study; is that fair to say?
DR. WOLFE: Are we talking about 2023?
MR. BRENNAN: Yes, we are.
DR. WOLFE: Okay. Yes.
MR. BRENNAN: You were unconstrained. You could've done anything you wanted to.
DR. WOLFE: I don't know about anything.
MR. BRENNAN: When you said unconstrained, what did that mean?
DR. WOLFE: Well, the agency that retained us didn't ask us to do specific work per se or specific tests.
MR. BRENNAN: You didn't do any type of crash tests at that time, did you?
DR. WOLFE: Not like was demonstrated today, no.
MR. BRENNAN: Instead, you started a working theory that perhaps a glass was thrown at the rear taillight of the defendant's car?
DR. WOLFE: Yes.
MR. BRENNAN: Did someone suggest to you that was a theory?
DR. WOLFE: No.
MR. BRENNAN: It's just something that you and Dr. Rentschler thought up together?
DR. WOLFE: Based on the evidence that we had, yes.
MR. BRENNAN: When you thought up that as a potential theory, that's why you built the potato cannon?
DR. WOLFE: The pressurized cannon, yes.
MR. BRENNAN: Pressurized cannon. And you shot a glass at the rear taillight, yes?
DR. WOLFE: Yes.
MR. BRENNAN: You determined that at 37 miles per hour there would be similar damage?
DR. WOLFE: Yes.
MR. BRENNAN: And then you came into court last year, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: And you provided that opinion of consistency to the jury, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: You got up and you said that something to the effect that that speed is consistent with the damage?
DR. WOLFE: Yes.
MR. BRENNAN: Now, when you gave that theory last year to the jury, did you know about other evidence in this case? For example, if a glass was thrown at the back of a car, how would the bottom of the glass bounce off the car and land near Mr. O'Keefe's body?
MR. JACKSON: Objection.
JUDGE CANNONE: Ask it differently.
MR. BRENNAN: Did you consider when you came in last year and opined, gave your theory, about a glass being thrown at the taillight was consistent with the damage, did you think about how the glass was thrown at the rear taillight, the bottom of it bounced off the vehicle wherever it was and landed near Mr. O'Keefe's body?
DR. WOLFE: I'm aware that it was found near his body, yes.
MR. BRENNAN: And knowing that it was found near his body, you knew his body was found about 7 or 8 feet off the road, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: Knowing the bottom of the broken glass was found near his body 7 to 8 feet off the road, did you consider that somebody threw a glass and broke that taillight, did it cross your mind how the glass bounced to where the body ended up?
DR. WOLFE: No, I did not analyze that part of it.
MR. BRENNAN: If a glass was thrown and bounced off that car, did you consider how his sneaker got on the curb?
DR. WOLFE: No, I did not evaluate that.
MR. BRENNAN: If the glass was thrown at the car and broke the taillight, did you consider the debris field would have ended up on the lawn?
DR. WOLFE: Well, it's my understanding I think that there were plows that came in through that night, so I don't know that where the debris field was eventually found, if that's where it would have been at some point earlier.
MR. BRENNAN: Did you ever talk to Lieutenant O'Hara or anybody from the state police to see if the plows went all the way to the side of the yard or just down the middle? Did you look into that at all?
DR. WOLFE: No, I did not.
MR. BRENNAN: So did you give any careful consideration to if glass was thrown at the back of that taillight, how there would be a debris field on the front lawn of somebody's yard?
DR. WOLFE: I don't think that was a part of our scope. It was more or less to determine whether or not if the taillight was impacted by a projectile, like a glass, could you get generally consistent damage to that taillight. That was the objective of the test.
MR. BRENNAN: So when you came in and testified the last time, you weren't considering all of the other evidence that may not support that theory, were you?
DR. WOLFE: I think our objective was to determine whether or not the damage was consistent with an interaction with Mr. John O'Keefe, and could there be another mechanism to cause the taillight to break.
MR. BRENNAN: Is there a reason why you were backing off that opinion on direct examination today?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. BRENNAN: You weren't fully embracing that theory today, were you?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow that.
DR. WOLFE: I don't know if I agree with that.
MR. BRENNAN: In this case, you provided reports recently?
DR. WOLFE: Yes.
MR. BRENNAN: When did you provide the report, was it April 6?
DR. WOLFE: April 6?
MR. BRENNAN: Or was it May 6?
DR. WOLFE: I think it's May 7.
MR. BRENNAN: May 7.
DR. WOLFE: If I'm not mistaken.
MR. BRENNAN: So you provided a report on May 7, yes?
DR. WOLFE: Correct.
MR. BRENNAN: Do you know when this trial started?
DR. WOLFE: Early April.
MR. BRENNAN: You provided your PowerPoint, when did you provide your PowerPoint?
DR. WOLFE: I think it would've been Thursday of this week. Or, sorry, maybe Wednesday or Thursday.
MR. BRENNAN: Wednesday; is that fair?
DR. WOLFE: Yes.
MR. BRENNAN: In looking at pedestrian accidents, it's important to try, if you can, to understand the exact positioning of the body; isn't it?
DR. WOLFE: If a collision occurred, yes.
MR. BRENNAN: Okay. If a collision occurred, you can't always identify the exact position of the body, can you?
DR. WOLFE: No, often times it can be very difficult, yes.
MR. BRENNAN: You would want to know if there is a collision between a car and a pedestrian whether the person was fully impacted or if it was a clipping type; wouldn't you want to know that approach?
DR. WOLFE: That would certainly affect the trajectory, yes.
MR. BRENNAN: And you would want to know, if you could, the body posture and whether the person was standing up straight or crouching?
DR. WOLFE: If a collision occurred, yes.
MR. BRENNAN: Whether they were turning or standing straight or they had their arm out, that's helpful information, isn't it?
DR. WOLFE: It can be, but when we're talking about how quickly this impact duration is, right, if you recall back to the PowerPoint, where we're talking about a 10 millisecond window. So however the body is positioned at contact, that's how it's positioned. It's not going to be able to have any significant movement or change in orientation in that 10 millisecond window.
MR. BRENNAN: The position of the body can change the trajectory of the person who's getting hit?
DR. WOLFE: Sorry. Can you repeat the question?
MR. BRENNAN: The positioning of the body, the way it's positioned, that can change the trajectory if they're hit -- after they're hit, can't it?
DR. WOLFE: It can, yes.
MR. BRENNAN: Whether they're moving towards the vehicle or away from it could affect the trajectory, couldn't it?
DR. WOLFE: If they have some relative velocity, yeah.
MR. BRENNAN: Trying to determine the point of impact when you're looking at a scene, it's important when you use trajectory studies to know where the point of impact is, isn't it?
DR. WOLFE: If you're going to utilize studies that look at projection of pedestrians when you're contacted at the center of gravity and you get projected some distance, you can't rely on those studies. But you have to have an understanding of where the point of impact is and where the point of rest is.
MR. BRENNAN: If you don't have a point of impact, if you don't know the point of impact, that creates variables in your studies, doesn't it?
DR. WOLFE: Well, for talking, again, talking about those studies, they're not applicable when you are contacted, for instance, just a limb or you don't have a center of gravity hit. Those -- when you're talking about how far will a pedestrian get projected, if it's like, you know, a forward projection or what's known as like a wrap projection where the pedestrian wraps onto the hood and then becomes decoupled, those studies are applicable there, but when you're talking about where there's minimal overlap between the body and the center of gravity, then you're not -- you can't utilize those studies.
MR. BRENNAN: So you would want not want to know what the point of impact is?
DR. WOLFE: In this particular case, no, I don't think it would be helpful.
MR. BRENNAN: You would not want to know the body position?
DR. WOLFE: I don't think that it would be helpful in determining, because, again, we have to start with does the damage -- is it consistent with a collision.
MR. BRENNAN: So you would not want to know what the body's position is, that's what you're telling us, you don't want to know that?
DR. WOLFE: Well, if the evidence indicates that the contact is inconsistent, then that's kind of where the reconstruction stops. You can't -- you can't go do a point of impact and a point of rest if there was no contact.
MR. BRENNAN: So you don't want to know the body position?
MR. JACKSON: Objection.
JUDGE CANNONE: Can you answer that?
DR. WOLFE: I don't understand his question, Your Honor.
JUDGE CANNONE: Okay.
MR. BRENNAN: When you're doing studies, you don't want to know the body position?
MR. JACKSON: Objection.
JUDGE CANNONE: Can you answer that, Dr. Wolfe?
DR. WOLFE: Again, it depends on the type of impact. For the alleged contact in this case, you can't rely on those studies about impact location and point of rest. They're not applicable to this.
MR. BRENNAN: We're not talking about studies. As far as data, information, you, as the person doing tests, would you want to know the body position?
MR. JACKSON: Objection. This is five times, Your Honor.
JUDGE CANNONE: And this time we'll get an answer, and that'll be it.
MR. JACKSON: We've got an answer every single time.
JUDGE CANNONE: Okay. Can you answer that, Dr. Wolfe?
DR. WOLFE: I feel like I've answered it the best I can, Your Honor.
JUDGE CANNONE: Okay. Next question.
MR. BRENNAN: You don't like that question?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Move to strike.
JUDGE CANNONE: Strike -- jurors, disregard that.
MR. BRENNAN: When you were doing these video demonstrations, was it important to be as accurate as possible?
DR. WOLFE: Yes.
MR. BRENNAN: Data changes if information changes, right?
DR. WOLFE: Not sure I understand your question.
MR. BRENNAN: You want to be as precise as you can in ultimately having a conclusion regarding data, don't you?
DR. WOLFE: Yes.
MR. BRENNAN: Could I have PowerPoint page 12, please? Now, look at force on the bottom, the first letter F signifies force, correct?
DR. WOLFE: Correct.
MR. BRENNAN: And the last two letters, MA, signifies mass, yes?
DR. WOLFE: Correct.
MR. BRENNAN: That's a very important part of that equation, isn't it?
DR. WOLFE: Yes.
MR. BRENNAN: If you change the mass, it can change the whole analysis, can't it?
DR. WOLFE: I'm not sure I understand your question.
MR. BRENNAN: Let me make it more simple. When you did these tests, you chose an arm from a hybrid three crash dummy, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: Take that down, Ms. Gilman.
MR. BRENNAN: Now, when you made that choice, you knew that John O'Keefe's arm, based on the statistics and his weight of being 216 pounds, you knew that his arm weight would be 11.8 pounds, didn't you?
DR. WOLFE: Yes.
MR. BRENNAN: And you knew that he was six-foot-one tall?
DR. WOLFE: Yes.
MR. BRENNAN: When you decided to choose an arm in this case, you didn't choose the arm closest to his waist, did you?
DR. WOLFE: It was representative enough, yes.
MR. BRENNAN: It was representative enough?
DR. WOLFE: It was close enough, yes, sir.
MR. BRENNAN: Close enough. Wouldn't you want to get an arm most closely related to his actual weight?
DR. WOLFE: I don't know that you can have custom-made ATDs.
MR. BRENNAN: You probably can't custom make them, but they have one that's 12 pounds. You know that, don't you?
DR. WOLFE: Are you referring to the 95th percentile?
MR. BRENNAN: Yes, I am.
DR. WOLFE: Yes.
MR. BRENNAN: So there's a 12 arm. Mr. O'Keefe's is 11.86 according to the statistics. You know that, right?
DR. WOLFE: Yes.
MR. BRENNAN: You looked it up.
DR. WOLFE: Yes.
MR. BRENNAN: You didn't tell us that on direct though, did you?
DR. WOLFE: I don't believe I was asked that.
MR. BRENNAN: Instead of choosing the 12 pound arm which .12 difference, you chose a much lesser weight, didn't you?
DR. WOLFE: It was about 10 pounds, yes.
MR. BRENNAN: No, it wasn't about 10 pounds. It was less than 10 pounds. Let's be exact. You're a scientist. Let's be as precise as possible when you're talking about data. It was less than 10 pounds, wasn't it?
DR. WOLFE: I think according to the spec sheet, I think it's 9.4 pounds total.
MR. BRENNAN: How about 9.38.? You keep coming up a little bit. Nine point three eight pounds.
MR. JACKSON: Objection, Your Honor.
JUDGE CANNONE: Sustained in that form.
MR. BRENNAN: May I approach?
JUDGE CANNONE: Yes.
MR. BRENNAN: I'm showing you a photograph. Is that a photograph of your materials in this case?
DR. WOLFE: Yes.
MR. BRENNAN: In that photograph, it shows the arm that you used in your studies, doesn't it?
DR. WOLFE: Correct.
MR. BRENNAN: And it shows that that arm weighs 9.38 pounds, doesn't it?
DR. WOLFE: Yes.
MR. BRENNAN: And that is less then the 11.86 pounds of Mr. O'Keefe's arm, correct?
DR. WOLFE: Correct, yes.
MR. BRENNAN: You didn't put that photograph in your PowerPoint to make it clear to everybody you were using an arm that was a much lesser weight, were you?
DR. WOLFE: No, I didn't put that photograph.
MR. BRENNAN: I'd like to move this into evidence, please.
JUDGE CANNONE: Okay. Any objection, Mr. Jackson?
MR. JACKSON: No, Your Honor. Thank you.
MR. BRENNAN: With the Court's permission, I'd like to show this to the jury.
JUDGE CANNONE: Just give us a minute. Let Madam Court Reporter mark it.
(Whereupon Exhibit No. 217, Video, was marked as an exhibit.)
JUDGE CANNONE: Yes, now you can play it.
MR. BRENNAN: This is the arm that you used in all of your videos, right?
DR. WOLFE: Correct, yes.
MR. BRENNAN: And you can see -- can you zoom in, Ms. Gilman, on the weight, 9.38 pounds.
DR. WOLFE: Yes.
MR. BRENNAN: There's a bigger difference between 9.38 and 11.86 than there is to 12 and 11.86, isn't there?
DR. WOLFE: Correct, yes.
MR. BRENNAN: When you do the math, have you done the math before on this? When you do the math, it's 26 percent difference, isn't it?
DR. WOLFE: In terms of more force?
MR. BRENNAN: No, mass, weight, 26 percent?
DR. WOLFE: Okay.
MR. BRENNAN: Right.
DR. WOLFE: I'm going to trust you, yeah.
MR. BRENNAN: Do you have a calculator?
DR. WOLFE: I do.
MR. BRENNAN: Can you do it?
DR. WOLFE: Sure.
MR. BRENNAN: Okay. And before you do that, you took this from a -- you know Mr. O'Keefe is six-foot-one. You used a crash test dummy that what is the height on it?
DR. WOLFE: Well, the ATD I believe is five-seven. The rescue Randy I think is 6 feet tall.
MR. BRENNAN: We'll talk about the rescue Randy later. We have questions about Randy.
DR. WOLFE: Okay.
MR. BRENNAN: Let's talk about this five-foot-nine. You said five- seven. It's actually five-nine.
DR. WOLFE: Sorry. Five-nine, yes.
MR. BRENNAN: And it's 170 pounds?
DR. WOLFE: A hundred and seventy-one I believe
MR. BRENNAN: Mr. O'Keefe's not 170 pounds?
DR. WOLFE: No, not his whole body.
MR. BRENNAN: He wasn't five-foot-nine?
DR. WOLFE: Correct.
MR. BRENNAN: Okay. So when you do the math and you take the 9.38 pounds, based on the 171 pound doll, and you look at the percentage, doesn't it come out to 5.48 percent total body weight?
DR. WOLFE: Yes.
MR. BRENNAN: And so the difference when you look at it, that's a 26.3 percent difference from his actual weight, isn't it?
DR. WOLFE: Correct, yes.
MR. BRENNAN: And so I'm probably at the sixth grade level on this, but it isn't it very basic that the more something weighs the slower something has to go to have damage, and if something weighs less the other part that collides or the force has to go faster?
DR. WOLFE: The force is going to be greater if the mass is greater.
MR. BRENNAN: So if you throw a 5 pound rock into a window, you can throw it slower to cause the same damage if you had a 2 pound rock?
DR. WOLFE: I don't know if I agree with that analogy.
MR. BRENNAN: Would you agree that based on the 26 percent difference, in order to actually be accurate, to be specific, to be scientific, you then have to adjust the speeds that you presented on your demonstrations and you have to reduce the speed by 26 percent?
DR. WOLFE: I don't agree with that.
MR. BRENNAN: You don't agree with that. You think that having a lighter arm, so what you're telling us is having a lighter arm would cause the exact same amount of damage to the taillight studies as a heavier arm. Is that what you're telling us?
DR. WOLFE: Well, if you look at, for instance, the 29 mile an hour impact test, that's significantly more kinetic energy. So the momentum of a 6,000 pound vehicle moving at 24 miles an hour, 29 miles an hour, that's going to overcome whatever the mass is that it's hitting at that point.
MR. BRENNAN: You're sidestepping my question.
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Can we approach?
JUDGE CANNONE: Ask a question, Mr. Brennan. Just ask a question. No more comments.
MR. BRENNAN: My question is, are you telling us that having a lighter arm does not impact the damage in these tests as opposed to using the heavier arm?
DR. WOLFE: Certainly not in the field test, no.
MR. BRENNAN: And so you disagree that when you look at the weights of those arms, do you disagree there's a 26.3 percent difference?
DR. WOLFE: Yes.
MR. BRENNAN: You disagree?
DR. WOLFE: I'm sorry. What was your question?
MR. BRENNAN: Do you agree there was a 26.3 percent difference in the arm weight that you used as opposed to John O'Keefe?
DR. WOLFE: Yes, the hybrid arm compared to Mr. O'Keefe's arm, yes.
MR. BRENNAN: And you are denying that there needs to be an adjustment to your calculation because the mass, MA, is different, you're denying that?
DR. WOLFE: I think again if you're -- and this is something Dr. Rentschler I believe will talk about.
MR. BRENNAN: No, I want to talk to you. I don't want to talk to Dr. Rentschler.
DR. WOLFE: Well, because when you're addressing the forces for injury and the mechanisms for injury, right, you would account for the difference in the weight.
MR. BRENNAN: So you're saying that it makes no difference that you use an arm that is 26 percent lighter; is that what you're saying to us? A No, I don't think it would've made a significant difference especially if you look at, for instance, the -- if you're looking at the 95th percentile hand and the 50th percentile hand, they both weigh 1.25 pounds. They're the exact same weight. There's about a pound more roughly in the forearm, and a pound more distributed in the upper arm.
MR. BRENNAN: That's not my question. It's not whether it's significant or not. I'm asking you are you saying under oath right now that the 26.3 percent difference had no impact on the calculations in that setting, it had no impact at all?
DR. WOLFE: The calculations, yes, but in terms of the damage, no, I don't think that 1 pound difference when we're talking about something that's 6,000 pounds striking something that's -- quite frankly whether it's 9.4 or it's 11 something, it's not -- you're not going to get a difference in the damage.
MR. BRENNAN: So why didn't you have a 3 pound arm up there?
DR. WOLFE: Well, I think that's unreasonable, sir,
MR. BRENNAN: What's that?
DR. WOLFE: I think that's unreasonable.
MR. BRENNAN: What's the difference? It's a 6,000 pound car according to you. What's the difference between 26 percent or 40 percent?
DR. WOLFE: Well, I don't know if I agree with your percentage because, again, you're accounting for the whole part of the arm that goes up to here (demonstrating) which we did not strike that part.
MR. BRENNAN: How much lighter, 2 pounds, how many ounces?
DR. WOLFE: I'm sorry, what was your question?
MR. BRENNAN: How much lighter is it the arm that you used?
DR. WOLFE: In terms of a percentage?
MR. BRENNAN: No, in terms of the weight. The weight. Nine point three eight.
DR. WOLFE: Right.
MR. BRENNAN: And Mr. O'Keefe is 11.86, right?
DR. WOLFE: (Calculating) about 2.48.
MR. BRENNAN: And you're saying that makes no difference, none?
DR. WOLFE: Not in the observed damage at those speeds, no.
MR. BRENNAN: Why didn't you use a 5 pound arm, sir?
DR. WOLFE: I'm sorry. What was your question?
MR. BRENNAN: Why didn't you use a 5 pound arm?
DR. WOLFE: Again, I don't know that they can make a 5 pound ADT arm.
MR. BRENNAN: You didn't tell us when you did these studies, you didn't disclose in your PowerPoint that you used an arm that was much lighter than Mr. O'Keefe's arm, did you?
DR. WOLFE: I don't know that it was -- I didn't give the weight in the presentation, no.
MR. BRENNAN: Let's take a look at some of your testing. The first one was at ten miles per hour, test A. You remember that test, right?
DR. WOLFE: Yes.
MR. BRENNAN: Now, 10 miles an hour, if you had taken 26 percent off, would you agree it would change the actual speed from 10 miles per hour to 7.67 miles per hour, if you did out the math, you did it specifically, accurately, precisely, would you agree using the wrong arm you made the deductions and the calculations that that that 10 mile-per-hour crash would actually be 7.6 miles per hour?
MR. JACKSON: Objection.
MR. BRENNAN: Would you agree with that?
JUDGE CANNONE: I'm going to allow that.
DR. WOLFE: No, because again, the arm is going to get accelerated up to that speed. So the speed would still -- that mass would still be accelerated up to 10 miles per hour. Same thing with the vehicle testing. It's going to be given that weight difference, it's going to be accelerated up to that speed.
MR. BRENNAN: Now, you -- can you we see the video of test A, please?
(Video played.)
MR. BRENNAN: Now, this is your study 10 miles per hour I'm play with an arm that is 9.38 pounds, correct?
DR. WOLFE: Correct.
MR. BRENNAN: Mr. O'Keefe is 11.86 pounds, yes?
DR. WOLFE: Yes.
MR. BRENNAN: Now, this light on the end of this, you're trying to replicate the light on the back of a Lexus?
DR. WOLFE: Correct.
MR. BRENNAN: If a think a Lexus at 6,000 pounds hits a person, the Lexus isn't stopping automatically, is it?
DR. WOLFE: No, it would move at a common velocity with the arm.
MR. BRENNAN: It would continue to push forward through the arm, yes?
DR. WOLFE: It may, yes.
MR. BRENNAN: And the arm can push into the light before the body turns, yes?
DR. WOLFE: I don't know that I agree with that, no.
MR. BRENNAN: If the light on the Lexus, not at this speed, but if the light on the Lexus was broken or it breaks, and it hits the arm, it's not going to bounce off the arm. It's going to push through, isn't it?
DR. WOLFE: It's going to move at a common velocity with the arm.
MR. BRENNAN: And that would move not only the arm, it would move the person's body, wouldn't it?
DR. WOLFE: It may, yes.
MR. BRENNAN: It may push the body; it may throw the body?
DR. WOLFE: I don't know about throwing.
MR. BRENNAN: And the light, if broken, will continue to press against the arm until there's separation; isn't that fair to say?
DR. WOLFE: It could in some instances. Again, it depends.
MR. BRENNAN: It could but it's not always the same. It's a dynamic process, isn't it?
DR. WOLFE: It is dynamic, yes.
MR. BRENNAN: You could do the test many times and get very different results, couldn't you?
DR. WOLFE: I don't know that I agree with that.
MR. BRENNAN: Would you get the same result every time?
DR. WOLFE: I think you would get certainly similar results.
MR. BRENNAN: Every time?
DR. WOLFE: If you had the exact same impact location and scenes, yes.
MR. BRENNAN: Well, that's what I thought. What if the impact location moved a little bit, it could have changed?
DR. WOLFE: Well, is Dr. Welcher changing? I don't know. Again, I was relying on what he provided.
MR. BRENNAN: This is not Dr. Welcher. I'm asking you.
MR. JACKSON: Objection. This --
MR. BRENNAN: No, it's not --
JUDGE CANNONE: Okay. So, jurors, disregard that exchange between counsel. Next question.
MR. BRENNAN: If the body position changed, you may get a different result, isn't that fair to say?
DR. WOLFE: I was going after what Dr. Welcher represented in his report and analysis. We did testing to analyze his orientation that he had demonstrated in his report.
MR. BRENNAN: You don't like that question either?
MR. JACKSON: Objection, Your Honor.
JUDGE CANNONE: Sustained.
MR. BRENNAN: If the body position changed, it could change the result, true?
DR. WOLFE: I don't know what you mean by body position. Do you mean the whole body, the arm, what part of the body?
MR. BRENNAN: Let's start with the arm. If the arm position changes, it could change the results, couldn't it?
DR. WOLFE: Well, I'm not aware of any other orientation that Dr. Welcher provided his analysis report as to alternative orientations.
MR. BRENNAN: If the arm position changed, could it change the result?
DR. WOLFE: Yes. Again, presume if you don't have your arm on the taillight, then, yes, you will probably get a different result.
MR. BRENNAN: What if it's bent in a different way, could that change the result?
DR. WOLFE: Again, I haven't reviewed anything that indicates that there was a different orientation than Dr. Welcher is suggesting.
MR. BRENNAN: I'm asking you. You're a scientist, right? Look at me. I'm asking you. It's a general question. If you bend the arm, could it change the result?
DR. WOLFE: It could.
MR. BRENNAN: Okay. When a person, a pedestrian is struck, they are not held stationary on a harness, are they?
DR. WOLFE: No.
MR. BRENNAN: In this case, the crash test dummy is on a harness?
DR. WOLFE: Yes, he's supported.
MR. BRENNAN: Strapped?
DR. WOLFE: Yes.
MR. BRENNAN: By his hips or pelvis?
DR. WOLFE: Yes.
MR. BRENNAN: That's not in real life, that's not how a pedestrian is usually when they're, they're not strapped to a harness, are they?
DR. WOLFE: No. Again, the purpose of this test was to evaluate the arm. We're not looking at the whole body in this test.
MR. BRENNAN: And when we talk about injuries, the part of injuries is not just the impact, it's the dragging, in this case, from the car, isn't it?
DR. WOLFE: It could be, yes.
MR. BRENNAN: But when you put the dummy on a harness, restricting or restraining its movement, it is not going to replicate hitting somebody and their movement when they were dragged, is it?
DR. WOLFE: I don't know if I agree with that because it will replicate, again, when we're talking about that impact pulse of 10 milliseconds. It will replicate that, and that's ultimately what we're after is what's happening in that 10 millisecond window in terms of the contact, the damage, and the damage and the acceleration.
MR. BRENNAN: I know that's what you're after. What I'm asking whether you end it from the lights, unlike a Lexus, and the dummy is stationary, unlike a person, it affects the aftermath, the drag and the push after, doesn't it?
DR. WOLFE: Yes, the kinematics would be different likely if it's not restrained like that.
MR. BRENNAN: In real life, a pedestrian usually is not restrained, correct?
DR. WOLFE: Correct.
MR. BRENNAN: In real life, a 6,000 pound Lexus comes in contact with an arm doesn't usually stop on a dime, does it?
DR. WOLFE: No.
MR. BRENNAN: Could I have the photo from test A, please? And so there is no break, but there is a crack in this light that was the result of this experience where this light hits that restrained dummy, yes?
DR. WOLFE: Yes.
MR. BRENNAN: And this is at 10 miles per hour in your role, 7.67, if you take off the 26 percent weight?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to that form.
MR. BRENNAN: If we could move to test B, please. Now, this test is a similar test. It has the same limitations, doesn't it, this dummy is restrained at the pelvis?
DR. WOLFE: Yes.
MR. BRENNAN: Could you show the video, please? There's two videos. The first one.
(Video played.)
MR. BRENNAN: And was the dummy restrained by its head as well?
DR. WOLFE: Yes.
MR. BRENNAN: Was his arm restrained in any way?
DR. WOLFE: It was tethered, but it was free to move.
MR. BRENNAN: This test you have at 17 miles per hour with the arm that's 9.38 pounds, Mr. O'Keefe 11.86 pound arm, if you consider that 26 percent difference, wouldn't it be fair to say this test rather than replicates 17 miles per hour, it would actually replicate 12.6 miles per hour?
MR. JACKSON: Objection, Your Honor.
JUDGE CANNONE: Can you answer that?
DR. WOLFE: Not the way it's phrased, no.
MR. BRENNAN: And so looking at this test, test B, which you say is 17 miles per hour, can you do a calculation that is a 26 percent difference, or is that something that you don't think is fair?
DR. WOLFE: I don't think that would be a fair way to characterize it. Again, no matter what the mass is there, if you're accelerating it, if you're impacting it at 17, that arm is going to move at 17.
MR. BRENNAN: If the Lexus -- if this arm was 5 pounds, do you think the test would have the same exact result?
DR. WOLFE: If it's 5 pounds?
MR. BRENNAN: Yes.
DR. WOLFE: It would probably would be less damage.
MR. BRENNAN: It would be less damage. So to get this amount of damage, you would have to increase the weight, right?
DR. WOLFE: Sorry. What was your question?
MR. BRENNAN: To get this amount of damage, you couldn't use a five pound arm. There would be less damage with a 5 pound arm.
DR. WOLFE: Correct.
MR. BRENNAN: Right. Because the less weight you use, the less damage at that speed?
DR. WOLFE: Correct.
MR. BRENNAN: That's just how it works?
DR. WOLFE: Correct.
MR. BRENNAN: Okay. So in this test, if you could run that back, you have it restrained down near, there's no follow-through of the light or the body that's attached to that arm, correct?
DR. WOLFE: When --
MR. BRENNAN: And at this speed, you can see the shards of taillight. You can see them move, can't you?
DR. WOLFE: When you say move, you mean just?
MR. BRENNAN: Not stationary.
DR. WOLFE: Yeah, I mean they're moving from the taillight as they break.
MR. BRENNAN: Detached from the taillight?
DR. WOLFE: Correct, they're broken.
MR. BRENNAN: That would create a debris field, yes?
DR. WOLFE: Yes.
MR. BRENNAN: And you could see them floating in the air, some of them actually floating and then touching the sweater, do you see that? A Possibly. Some of it might be, again, some of that polyurethane foam.
MR. BRENNAN: Yep. Some might be, and why don't we play it again, so we can see clearly. Some might be taillight shards, too, right? That black object spinning, that's not foam, is it?
DR. WOLFE: No, it would not be.
MR. BRENNAN: That would be taillight shards, right?
DR. WOLFE: Correct.
MR. BRENNAN: And so even at this speed, you can see in this type of collision, there is significant -- bless you -- significant amount of taillight shards that are broken from the taillight and strewn into the air, yes?
DR. WOLFE: Well, there -- I think on one the slides I had, I think I showed the fragments that were left, and from what I recall, I think there was four pieces from the taillight from the lens.
MR. BRENNAN: If you could put that back up so Dr. Wolfe can see it again to the point of the collision.
(Video played.)
MR. BRENNAN: Even at this speed --
MR. BRENNAN: Go ahead.
(Video played.)
MR. BRENNAN: Stop.
MR. BRENNAN: You can see pieces, large, small, medium, maybe even microscopic are now breaking off from that taillight and being littered into the air, aren't they?
DR. WOLFE: Yes, there are pieces coming off.
MR. BRENNAN: If we could go to test C, please. Now in test C, you actually use only an arm; isn't that fair to say?
DR. WOLFE: Correct.
MR. BRENNAN: You don't use a body or crash test dummy?
DR. WOLFE: No.
MR. BRENNAN: You, in fact, this is not the 12 pound arm either. This is the 9.38 pound arm?
DR. WOLFE: Correct.
MR. BRENNAN: And when you do this test, you have the arm, it's basically an object suspended in the air, isn't it?
DR. WOLFE: Yes.
MR. BRENNAN: And you said, I think on direct examination, I think you said that this is the same as if it was on the dummy; is that your testimony?
DR. WOLFE: Well, in terms of, again, the amount of weight that would be interacting with the taillight, whether it's attached to the dummy or not, what's in direct contact is going to be the same.
MR. BRENNAN: Well, the fact that it's just floating up in the sky like that, it's very different than if what it was attached to a person or a dummy, isn't it?
DR. WOLFE: In terms of how it moves immediately after the impact, yes.
MR. BRENNAN: Not just how it moves, as far as the impact. Isn't it different?
DR. WOLFE: I don't know that I agree with that.
MR. BRENNAN: Well, wouldn't you say that in addition to the arm if you had another 200 plus pounds being held down by gravity that would affect the force that's acting on the arm?
DR. WOLFE: Well, the, arm again, is going to be accelerated, but the center of mass of the body is not going to see that acceleration.
MR. BRENNAN: You testified before in this case about the importance of the whole body and gravity?
DR. WOLFE: I'm sorry. What was your question?
MR. BRENNAN: Have you testified before in this case about the effect of gravity and the full force of the body as opposed to just an arm?
DR. WOLFE: Yes.
MR. BRENNAN: And do you remember whether you thought it important on a previous time you testified that there was significance to the arm would be attached to a 200 plus pound body, and there was an issue of gravity that would affect force?
DR. WOLFE: From what I recall, I think that had to deal with whether or not the pedestrian would be projected based upon an interaction with the arm or a full on center of gravity, right. When we're only hitting the arm, we're not hitting the CG of the body.
MR. BRENNAN: You did test B, and you claim it was at 17 miles per hour, test B?
DR. WOLFE: Correct.
MR. BRENNAN: And we saw the damage. This is at 15 miles per hour test C. Could you play this, please?
MR. BRENNAN: There might be a delay, so if you can fast-forward a little bit, please.
(Video played.)
MR. BRENNAN: How many times do you think that arm spun around?
DR. WOLFE: I don't know.
MR. BRENNAN: That's not what would happen to a person who got hit. Their arm wouldn't spin from through body like that, would it?
DR. WOLFE: Correct, it would not.
MR. BRENNAN: That many times?
DR. WOLFE: No.
MR. BRENNAN: Maybe the pull of their body weight, yes?
DR. WOLFE: I'm sorry. What was your question?
MR. BRENNAN: The pull of their body weight?
DR. WOLFE: The body weight, yeah, would affect the movement afterwards, yes.
MR. BRENNAN: Gravity, yes?
DR. WOLFE: Yes.
MR. BRENNAN: And so there's a reason why you do this test at 15 miles per hour. Is there a photo related to the damage to the taillight? There is a reason why at 15 miles per hour the damage is much different than the other test at 17 miles per hour, isn't there?
DR. WOLFE: Correct.
MR. BRENNAN: Because at 17 miles per hour, you have the dummy that is strapped by a harness from its pelvis when it's hitting the arm, it's affecting it much differently than just an arm floating in the air, yes?
DR. WOLFE: No, I don't agree with that. The primary reason there's a difference in the damage is because of the amount of the arm that is outstretched and interacting with the taillights. There's a difference in those two tests.
MR. BRENNAN: And so the body and the weight of the body you're saying has nothing to do with the amount of damage?
DR. WOLFE: Not in these tests, no.
MR. BRENNAN: So when somebody gets hit, does the body weight have anything to do with the damage, not just the area that gets hit, does the body weight affect it at all?
DR. WOLFE: Not in terms of the impact. The rest of the body, that's -- it's not going to matter if, for instance, only my hand like in that last test we just saw, it was the hand and the wrist. How much my stomach weighs, my head weighs is not going to affect the damage to that taillight in that interaction.
MR. BRENNAN: And by the way, this test you said 15 miles per hour. If you considered the 26 percent, you're only at 11.1 miles an hour; is that the right math?
DR. WOLFE: Again, I don't agree with that because if you look at the data, and you integrate the acceleration data to get the speed, right, that we saw on those plots, the hand basically gets up to I think it was 14 or 15 miles an hour. It reaches that common velocity of the vehicle.
MR. BRENNAN: Let's go to test F. On test F, you place the dummy more behind the vehicle, didn't you?
DR. WOLFE: Correct.
MR. BRENNAN: And when you tested, you put it more behind the vehicle. This is more of a full impact than it is a clipping, isn't it?
DR. WOLFE: Certainly, yes.
MR. BRENNAN: And when you put this dummy behind the car, this was not a legitimate crash test dummy. It was a different type of dummy, wasn't it?
DR. WOLFE: Yes, it's called a rescue Randy.
MR. BRENNAN: Rescue Randy. And that is not typically the type of dummy that you're going to use in a crash test, is it?
DR. WOLFE: I wouldn't agree with that.
MR. BRENNAN: You did the rescue Randy and crash test after you used the 12 pound arm or did you stick with the 9.38?
DR. WOLFE: The hybrid arm wasn't attached to the rescue Randy, and --
MR. BRENNAN: The hybrid arm was not; is that what you said, or it was?
DR. WOLFE: It was not, no, not in the full impact test.
MR. BRENNAN: Okay. So what was the weight of the arm on the rescue Randy?
DR. WOLFE: I don't know specifically the weight of the arm. I know that the total mass of the rescue Randy was 200 pounds.
MR. BRENNAN: Is the weight of the arm important when you're talking about impact to the arm?
DR. WOLFE: I don't think relative to the rest of the mass of the body. Q So now the mass of the body counts, but before it didn't?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained in that form.
MR. BRENNAN: If we can see test F you have some photographs. We'll start with the first one if we could. Now this is a direct hit?
DR. WOLFE: Correct.
MR. BRENNAN: This is simply a photo or a video? Could we go to the next one, please? So the rescue Randy is placed much further in the car than the other test that would be more similar to a clip, yes?
DR. WOLFE: Correct.
MR. BRENNAN: Next photo, please. And that is the result of the impact?
DR. WOLFE: Correct.
MR. BRENNAN: Do you see the debris field?
DR. WOLFE: Yes.
MR. BRENNAN: Is it near rescue Randy?
DR. WOLFE: Some of it is, yes.
MR. BRENNAN: It's spread out a little bit, yes?
DR. WOLFE: That's fair, yes.
MR. BRENNAN: But it's not right on his body; it's a distance from his body, yes?
DR. WOLFE: There may be some -- I can't tell from this photo, there may be some around his body, but, yes, there's also debris closer to the Lexus as well.
MR. BRENNAN: And this is the demonstration where you didn't turn on the videotape so we don't have the videotape?
DR. WOLFE: Correct. We had the false start, yeah.
MR. BRENNAN: What's that?
DR. WOLFE: We had the false start.
MR. BRENNAN: False start. Is there another picture after this? Those clothes, are there holes or tears in clothes?
DR. WOLFE: Yes, there's damage that's consistent with road rash when clothing or a body makes contact with a pavement and is grinding into the pavement.
MR. BRENNAN: The pavement's hard?
DR. WOLFE: Yes.
MR. BRENNAN: How about frozen ground, frozen dirt?
DR. WOLFE: Is that hard?
MR. BRENNAN: Yeah.
DR. WOLFE: I suppose it can be.
MR. BRENNAN: Well, do you have any doubt whether frozen ground in the Northeast in the winter is hard, hard as a rock?
DR. WOLFE: I haven't done any analysis to assess that.
MR. BRENNAN: And so seeing holes in those clothes, is what you would expect after Randy hits that hard ground, right?
DR. WOLFE: Are you talking about frozen grass or pavement?
MR. BRENNAN: I'm talking about Randy right now. These holes in the clothes are what you would expect after Randy hits the hard ground, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow that. Is that what you would expect?
MR. JACKSON: Your Honor, I need to approach on this.
JUDGE CANNONE: All right. Jurors, please feel free to stand up and stretch.
(Sidebar commences:
MR. JACKSON: The question is vague. Hard ground does not -- it obviously it confused the witness because he asked for clarification - are you talking about grass or asphalt.
JUDGE CANNONE: Okay.
MR. JACKSON: And he repeated the question hard ground.
JUDGE CANNONE: Okay. I wouldn't have come to sidebar for that.
MR. JACKSON: Well, I couldn't have explained it. I didn't think you wanted me to.
JUDGE CANNONE: No need to. The objection is overruled.
end of sidebar.)
MR. BRENNAN: So holes in the clothes is what you would expect after Randy hits the ground, yes?
DR. WOLFE: If there is prolonged sliding contact with the asphalt, certainly, you could expect to see tearing, large holes, material fraying, and even transfer of pavement material onto the clothing.
MR. BRENNAN: You've done no studies on hard ground like a front yard, have you?
DR. WOLFE: In terms of a pedestrian sliding on the grass?
MR. BRENNAN: And clothing tears, yes.
DR. WOLFE: No, sir.
MR. BRENNAN: If you could go back one slide. You see the debris field is near but not on Randy. Can you tell if there's any small pieces or microscopic pieces on or near Randy's clothes in the study that you took?
DR. WOLFE: No.
MR. BRENNAN: If I could go to test E, please. Test E you cite as having a speed of 24 miles per hour, correct?
DR. WOLFE: Correct.
MR. BRENNAN: And that's with an arm that is 9.38 pounds, yes?
DR. WOLFE: Correct.
MR. BRENNAN: I remind you Mr. O'Keefe's arm would be about 11.86 pounds, yes?
DR. WOLFE: Correct.
MR. BRENNAN: If you would reduce 26 percent, you would be at 17.8 miles per hour, wouldn't you?
MR. JACKSON: Objection.
JUDGE CANNONE: Are you doing math, Dr. Wolfe?
DR. WOLFE: I don't agree with his characterization, Your Honor.
JUDGE CANNONE: Okay. Next question.
MR. BRENNAN: I understand you don't agree, but if you took 26 percent off the 24 miles per hour, you come up to 17.8 miles per hour.
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow that.
MR. JACKSON: It's irrelevant.
JUDGE CANNONE: I'm going to allow that.
DR. WOLFE: That's what the calculation would yield.
MR. BRENNAN: On test E, there are some differences between your test and what would happen in real life, for example, there's a harness, correct?
DR. WOLFE: Correct.
MR. BRENNAN: And the harness prevents the dummy from being thrown?
DR. WOLFE: Correct.
MR. BRENNAN: The harness affects your ability or one's ability to see the study and see what the trajectory would be after impact, correct?
DR. WOLFE: Well, that wasn't the purpose of the study to assess the trajectory, sir.
MR. BRENNAN: I understand. I'm not trying to criticize, but it affects the ability to see the trajectory when dummies are on a harness, doesn't it?
DR. WOLFE: Yes.
MR. BRENNAN: Could we put up the first video on this, please. Photo 115.
(Video played.)
MR. BRENNAN: If you could stop it right there. And you can see the feet aren't as firmly planted on the ground as a person would be in most circumstances because of that harness, yes?
DR. WOLFE: Correct.
MR. BRENNAN: And that affects gravity, doesn't it?
DR. WOLFE: Affects gravity?
MR. BRENNAN: Well, when the car hits, the gravity, the weight of the dummy is less because it's held up by a harness, isn't it?
DR. WOLFE: Right. So gravity really, again, it's suspended at this point just above the ground.
MR. BRENNAN: The arms that's extended, is there a glass in that hand?
DR. WOLFE: No, that's not more weight in the hand.
MR. BRENNAN: So there's no object in the hand of any of these tests?
DR. WOLFE: No, because ultimately what would happen is because of the accelerometer being mounted on the palm of the hand, if you had a glass there, it would interfere with those measurements.
MR. BRENNAN: I understand why you didn't do it, but would you say it's fair to say that if a glass was in the dummy's hand on these tests, it could affect or change the damage?
DR. WOLFE: Well, if you add another, you know, I think the drinking glass we utilized for the testing last year I think was .7 pounds. So if you add another .7 or a pound to the hand, that hand contacts the liftgate taillight, you certainly could see damage to that taillight which we certainly didn't see on the subject vehicle.
MR. BRENNAN: So weight does kind of matter, right?
DR. WOLFE: It can, yes.
MR. BRENNAN: Not just .7 pounds but 2 and a half pounds can matter, too? Weight matters?
DR. WOLFE: Yes.
MR. BRENNAN: That's kind of like we were talking about for the last half-hour, weight matters in these tests, doesn't it?
DR. WOLFE: Correct. But you can't look at this in isolation just between damage, and you can't separate it from the injuries, right. What's going to happen to the body in terms of the injuries in a 24 mile an hour impact.
MR. BRENNAN: Does weight matter?
DR. WOLFE: In terms of the force?
MR. BRENNAN: And so we see this dummy with the arms stretched out, correct?
DR. WOLFE: Correct.
MR. BRENNAN: Okay. Can we play this.
(Video played.)
MR. BRENNAN: Stop right there. This isn't an approved crash test dummy, is it?
DR. WOLFE: The rescue Randy portion, no. It's not instrumented like a hybrid.
MR. BRENNAN: Is the arm the hybrid three?
DR. WOLFE: Yes, the arm is the hybrid three.
MR. BRENNAN: So you took -- in test F, you didn't put the hybrid three on Randy, but on this one you did?
DR. WOLFE: No, because you risk -- these ATD devices can range from 100,000 to 150,000 dollars, and you run the risk of destroying that equipment in a test like that.
MR. BRENNAN: So in test F, you put the hybrid on the Randy?
DR. WOLFE: It's just the rescue Randy in the last test.
MR. BRENNAN: On him?
DR. WOLFE: Correct.
MR. BRENNAN: In this one you have the hybrid arm on Randy?
DR. WOLFE: Correct.
MR. BRENNAN: So you're switching up between tests what pieces you're using, aren't you?
DR. WOLFE: I would say adding, but.
MR. BRENNAN: Adding and subtracting, one's off, one's on. One's Randy and one's hybrid, so you're switching?
DR. WOLFE: Yes.
MR. BRENNAN: Different result.
DR. WOLFE: Sir, I'm not sure I understand your question. Are you trying to say a different result between test F and this test because they're not the same test.
MR. BRENNAN: Oh, I understand. I understand. Can I have you come back to this a little bit more? Okay. You can let it run.
(Video played.)
MR. BRENNAN: Stop. You can see the shattered taillight moving and most of it's moving in the same direction, isn't it?
DR. WOLFE: Yes.
MR. BRENNAN: And that's what creates a debris field after a collision, doesn't it?
DR. WOLFE: Yes, I mean components will break off and fall to the ground, yes.
MR. BRENNAN: No since Randy is on a harness, he's not going to be thrown the same way as what would happen in real life, is he?
DR. WOLFE: Correct, and that wasn't the purpose of this test, sir.
MR. BRENNAN: I understand. When you chose 24 miles per hour, without the 26 percent reduction which will make it 17.8 miles per hour, when you chose 24 miles per hour because you had looked at the TechStream data that had been taken from the defendant's Lexus, right?
DR. WOLFE: Correct.
MR. BRENNAN: And when you looked at that data, you understood that during that event, 10 seconds of data is captured, yes?
DR. WOLFE: Yes.
MR. BRENNAN: But that doesn't define the whole event, does it?
DR. WOLFE: That only encompasses what was recorded.
MR. BRENNAN: And you said you chose 24 miles per hour because that was about the speed at the end of that 10 seconds?
DR. WOLFE: Correct.
MR. BRENNAN: You do realize at the end of that 10 seconds, the car, the defendant's Lexus was going faster, it was still accelerating, don't you?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it.
DR. WOLFE: From what I recall, the last data point I believe the throttle was still around 74 percent.
MR. BRENNAN: Well, ARCCA specializes in TechStream data, don't they?
DR. WOLFE: Yes.
MR. BRENNAN: So while looking at that, you would agree that at the end of the 10 seconds, the defendant's Lexus was increasing in speed?
DR. WOLFE: We don't know again beyond that data point what the data is.
MR. BRENNAN: At the end of that 10 seconds, the car was going up and not down in speed, yes?
DR. WOLFE: Correct.
MR. BRENNAN: You can't tell how much longer that car travelled for after that 10 seconds?
DR. WOLFE: Correct, we don't know.
MR. BRENNAN: So when you chose the 24 miles per hour space on the data point, it wasn't based on you believing that there was an impact at a certain speed, was it?
DR. WOLFE: No, and the triggering event itself is not a collision by definition, and nowhere in that data can you parse out whether or not any contact even occurred.
MR. BRENNAN: We know that.
DR. WOLFE: Okay.
MR. BRENNAN: My point is you can't tell how fast the vehicle was going if it was in a collision from that data, can you?
DR. WOLFE: Sorry. Can you repeat the question?
MR. BRENNAN: If that vehicle was in a collision, you wouldn't be able to tell from that vehicle what the speed was at the time of the collision?
DR. WOLFE: If contact allegedly occurred at some point in that data set, no, you would not be able to pick a row in that data and say this is where that collision occurred.
MR. BRENNAN: Or after that data set, you would have no idea?
DR. WOLFE: Outside of the data?
MR. BRENNAN: Yeah.
DR. WOLFE: No.
MR. BRENNAN: Okay. And so when you look at this experiment that you did, if you were to ask -- you said 24 miles per hour, that's not considering the 26 percent. If you were to add seven more miles per hour to this collision, would you expect more damage to that right taillight?
DR. WOLFE: Potentially, yes, but you're certainly getting into the realm of injury at that point.
MR. BRENNAN: I'm not asking about that. I'm asking you a simple question about damage. If you were to add seven miles per hour onto this test here, would you expect more damage to that right rear taillight?
DR. WOLFE: Yes.
MR. BRENNAN: Can you finished the video?
(Video played.)
MR. BRENNAN: Now I want to ask you some questions -- you can stop there. I'm going to ask you some questions. Can you bring it back right before the collision, please? The speed changes the result of this, doesn't it?
DR. WOLFE: In terms of the impact speed?
MR. BRENNAN: Yes, the impact speed can change the result of this, the damage to the right rear taillight, can't it?
DR. WOLFE: Correct.
MR. BRENNAN: And the angle of the arm can change the damage to that right rear taillight, can't it?
DR. WOLFE: It can, yes.
MR. BRENNAN: Did you take any pictures of the debris field after the impact from damage in the test E, did you take any photographs of the debris field?
DR. WOLFE: I believe so, yes.
MR. BRENNAN: Was it included in your materials that were provided to us?
DR. WOLFE: It should have been in all the test materials that was provided, yes.
MR. BRENNAN: Was the debris fields within a certain range, was it within a certain circle 10, 20, 30 feet?
DR. WOLFE: That sounds about right.
MR. BRENNAN: And so a debris field, although it might scatter, it almost forms kind of ring, doesn't it?
DR. WOLFE: It can, yes.
MR. BRENNAN: And it can inform that ring away from where the body lands, can't it?
DR. WOLFE: It can, yes.
MR. BRENNAN: And in this test which you say is 24 miles per hour without the reduction to 17.8 miles per hour, in this test, upon impact, there is a number of pieces of taillight that shatter, isn't there?
DR. WOLFE: Yes.
MR. BRENNAN: Did you count how many?
DR. WOLFE: About 19 pieces.
MR. BRENNAN: Nineteen pieces. Could you move forward just a little bit? When they break and scatter, some of them go up, some of them go down. Stop, please. Yes?
DR. WOLFE: Correct, yes.
MR. BRENNAN: Some of those come in contact with Randy's arm, yes?
DR. WOLFE: Correct.
MR. BRENNAN: Now, Randy being on a harness, it's not like real life when the Lexus goes, it could continue to push him with it, right? He can't go with the car or the Lexus because he's on a harness, yes?
DR. WOLFE: Correct. He's not going to move from that position.
MR. BRENNAN: Could you move forward. Do you see Randy's feet?
DR. WOLFE: Yes.
MR. BRENNAN: Do you see the right foot?
DR. WOLFE: Yes.
MR. BRENNAN: It's twisting, right?
DR. WOLFE: Correct.
MR. BRENNAN: Turning. Stop. Could you show the photo with the sneaker, please?
(Photograph displayed.)
MR. BRENNAN: When you were reaching your conclusions, that you offered to the jury today, did you consider this photograph?
DR. WOLFE: No.
MR. BRENNAN: Did you know that this sneaker was up against a curb in the area?
DR. WOLFE: Yes.
MR. BRENNAN: You didn't consider this at all?
DR. WOLFE: It wasn't a part of my analysis.
MR. BRENNAN: If we could go back to the video. You see the spinning rotation on the foot?
DR. WOLFE: Yes.
MR. BRENNAN: And the turn of the sneaker?
DR. WOLFE: Yes.
MR. BRENNAN: Okay. I want you to go back, Ms. Gilman, please, to the point of impact. In your studies, you would agree there can be a clip of a pedestrian that causes significant damage to the taillight where the pedestrian incurs no lower body injuries whatsoever, that can happen, can't it?
DR. WOLFE: Well, I don't know if I would describe this as a clip to the arm. This is a full on impact to the arm, so it's not a clip. Again, you saw it at the 15 miles per hour. I think that's more analogous to a clip or a sideswipe where the arm just kind of gets brushed out of the way. This I would say is a full on impact to the arm.
MR. BRENNAN: Okay. To use your words, in a full on impact like this, a pedestrian could be involved in a full on impact causing that amount of damage to the taillight that's reflected in this video, and suffer no lower body injuries, isn't that fair to say?
DR. WOLFE: I don't address injuries, sir.
MR. BRENNAN: Well, let's play it forward. Did you ever see Randy's knees hit the car?
(Video played.) Hips, ribs?
DR. WOLFE: I see the foot getting run over, but I don't see -- I don't think there was contact with the legs, no.
MR. BRENNAN: Would you agree that a pedestrian could be in this type of a collision and suffer no lower body injuries based on your presentation here?
DR. WOLFE: Sir, I don't address injuries. Biomechanics is not my area of specialty.
MR. BRENNAN: You said it's common in vehicle pedestrian collisions that there's this some kind of bumper displacement?
DR. WOLFE: Correct.
MR. BRENNAN: Did you said that?
DR. WOLFE: Yes.
MR. BRENNAN: All right. Bring it back to the beginning, please. Stop. Any bumper displacement in this collision?
DR. WOLFE: In this specific test, no.
MR. BRENNAN: You said that on direct you would expect there there would be some panel deformation. What does that mean?
DR. WOLFE: So if, for instance, let's say the hand is not contacting the taillight or a portion of it is contacting the liftgate, you could see deformation to that body paneling. A You said that you would expect to see, not that you could, what you said on direct is you would expect to see panel deformation? A Yes.
MR. BRENNAN: And you said in this case there was none, right? Talking about the defendant's Lexus. You said, "I would expect to see panel defamation in this case, and in this case, the defendant's Lexus, there was none." That's what you told us on direct?
DR. WOLFE: Correct.
MR. BRENNAN: Let's watch -- let's watch you video. Play ahead. Is there any panel deformation -- stop -- in this?
DR. WOLFE: No, sir.
MR. BRENNAN: So when you said on direct examination relative to the defendant's Lexus, you would expect panel defamation and there was none, there are examples, one that you gave us yourself, where there is a collision causing this amount of damage to the taillight when there's no panel deformation?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it.
MR. BRENNAN: Right?
DR. WOLFE: If I recall, I think you're referring to my prior testimony in another proceeding where I had not conducted this testing yet. So ultimately, that's part of the reason why this testing was conducted to evaluate that.
MR. BRENNAN: In this case, the damage to the right rear taillight, there's no panel defamation, is there?
DR. WOLFE: Correct, there is not.
MR. BRENNAN: When somebody is wearing a hat and they're involved in a collision similar to this, can their hat fall off?
DR. WOLFE: Potentially.
MR. BRENNAN: Did you look at photos, is there a photo of the hat, Ms. Gilman? Before you came to your opinions and conclusions, did you look at this photo and see a hat on the grass?
DR. WOLFE: I did review this, yes.
MR. BRENNAN: And did you give any consideration when you did your tests on whether the hat would come off Randy or any crash test dummy when you made that statement?
DR. WOLFE: No, that wasn't part of my evaluation.
MR. BRENNAN: Could I have photo 77, please? What's that, sir?
DR. WOLFE: So I don't know if you'll be able to see it in the photograph, but there was some material transfer from the jeans that the rescue Randy was wearing.
MR. BRENNAN: And so as a result of that impact, there was scuffing from Randy's jeans onto this exemplar Lexus?
DR. WOLFE: There was scuffing, yes.
MR. BRENNAN: Did you look at the defendant's photos of the defendant's Lexus?
DR. WOLFE: Yes.
MR. BRENNAN: To see --
DR. WOLFE: Sorry.
MR. BRENNAN: It's okay. To see if there was any scuffing in a very similar area?
DR. WOLFE: I don't recall it being at that portion of the vehicle close to the rear wheel.
MR. BRENNAN: Where did you see the scuffing on the defendant's Lexus?
DR. WOLFE: I think there was some scrapes along the wraparound section of the bumper cover.
MR. BRENNAN: The bottom part?
DR. WOLFE: Correct.
MR. BRENNAN: That's not a claim that's attributed to the collision, so I don't you to consider that. But did you see other scuffs a little higher up on the Lexus?
DR. WOLFE: I did, but I don't know those are -- those could certainly just be normal wear and tear to the vehicle.
MR. BRENNAN: Is that normal wear and tear?
DR. WOLFE: This, no, because we observed it in the test.
MR. BRENNAN: Could I have photo 153, please. Now, this is a photo without the hatchback up. This is just the lighting fixture, right?
DR. WOLFE: Correct.
MR. BRENNAN: Could you get a close-up? And you would agree if you went seven miles an hour faster, it would cause more damage to that, wouldn't it?
DR. WOLFE: Yes.
MR. BRENNAN: When the taillight is shattered and it spreads through the air, does it have the potential to impale a person, for example, on their nose?
DR. WOLFE: I'm sorry. Can you repeat the question?
MR. BRENNAN: In your test you saw that upon collision, there was a scattering of taillight that broke from the fixture, correct?
DR. WOLFE: Correct.
MR. BRENNAN: Would that -- those shards as they float or fly through the air, do they have the ability to impale a person on their face or even their nose?
DR. WOLFE: I think that would be unlikely.
MR. BRENNAN: And finally, we've discussed you now would agree with me that weight does matter, doesn't it?
DR. WOLFE: It can if it's significant, yes.
MR. BRENNAN: I have no further questions.
JUDGE CANNONE: All right. Mr. Jackson.
MR. JACKSON: Thank you, Your Honor. May I have just a moment?
JUDGE CANNONE: Yes.