Commonwealth v. Read — Trial ArchiveElizabeth Laposata - Voir Dire
260 linesJUDGE CANNONE: So, we'll fix that during the luncheon break. [unintelligible] Mr. Yannetti [unintelligible]. All right. So, can we get Dr. Laposata in here? We'll do a very brief voir dire of her.
COURT CLERK: I'm going to step up, face the clerk, and raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
DR. LAPOSATA: I do.
JUDGE CANNONE: All right. Good afternoon, doctor.
DR. LAPOSATA: Good afternoon, your honor.
JUDGE CANNONE: We're going to do a brief voir dire. Okay?
DR. LAPOSATA: No problem. Thank you.
JUDGE CANNONE: All right. Mr. Jackson, foundation on just those two points, please.
MR. JACKSON: Sure. Your honor, for purposes of expediting, does the court wish for me to go through the foundation of the doctor's education, training, background and experience, which is going to take a minute?
JUDGE CANNONE: Yeah. No. Just focus on the foundation for the dog bites and focus on the foundation for what's been termed to be perhaps biomechanical engineering evidence — those two areas. And if there is support or methodology in Dr. Laposata's resume, point to exactly where that is.
MR. JACKSON: Okay. And I expect this whole voir dire should take no more than 15 minutes. I'll do my best, your honor. Dr. —, could you please state your name for the record? Spell your last name into the record, please.
DR. LAPOSATA: Yes. Dr. Elizabeth Laposata. That's spelled L-A-P-O-S-A-T-A.
MR. JACKSON: Dr. Laposata, what do you do for a living?
DR. LAPOSATA: I'm a medical doctor specializing in forensic pathology.
MR. JACKSON: Dr. Laposata, I'm going to move very quickly past the bulk of your training and experience over decades. I'm going to ask you a couple of quick questions. Where did you get your medical degree?
DR. LAPOSATA: The University of Maryland School of Medicine.
MR. JACKSON: And do you have any subordinate degrees to your medical degree?
DR. LAPOSATA: Yes, I have board certifications in anatomic and forensic pathology.
MR. JACKSON: How long have you had those board certifications?
DR. LAPOSATA: Like 35, 40 years.
MR. JACKSON: Have you ever worked as a medical examiner in any capacity?
DR. LAPOSATA: Yes, I have.
MR. JACKSON: Have you ever worked as a chief medical examiner for any agency or governmental agency or state?
DR. LAPOSATA: Yes, I have.
MR. JACKSON: Describe that for the court, please.
DR. LAPOSATA: Um, I was chief medical examiner for the state of Rhode Island for 12 years.
MR. JACKSON: How many autopsies would you say in general that you have conducted yourself?
DR. LAPOSATA: Uh, over 3,000.
MR. JACKSON: How many autopsies in your experience as a supervisor in one capacity or another would you say you've supervised over your tenure?
DR. LAPOSATA: Over 7,000.
MR. JACKSON: Of those 7,000 that you have supervised, have any of those dealt with motor vehicle incidents?
DR. LAPOSATA: Many.
MR. JACKSON: Have any of those dealt with motor vehicle and pedestrian incidents?
DR. LAPOSATA: Many.
MR. JACKSON: Give me an idea — if you have a number in mind — how many motor vehicle pedestrian autopsies you have been involved with, either directly or from a supervisory standpoint.
DR. LAPOSATA: Hundreds, over 500 at least.
MR. JACKSON: Do you have a significant background and training in the cause and manner of death?
DR. LAPOSATA: Yes, I do.
MR. JACKSON: Is that the main goal or the main job or duty performed by a medical examiner?
DR. LAPOSATA: Yes, it is.
MR. JACKSON: Is it also significant in terms of supervising other subordinate medical examiners who may work under your charge?
DR. LAPOSATA: Yes, you have to make sure they're doing it right.
MR. JACKSON: Is there a methodology that you have employed and that is standard in the industry to employ, including differential diagnosis and inferential thinking, in terms of coming to conclusions related to cause and manner of death?
DR. LAPOSATA: Yes.
MR. JACKSON: Can you explain that for the court briefly, please? I know you probably have a very lengthy explanation. Do it as briefly and as succinctly as you can.
DR. LAPOSATA: Certainly. To determine cause and manner of death, we look at scene investigation, autopsy findings, police and witness statements, and medical history. And using that information, we come up with a differential diagnosis — a list of things that might have happened to that person to cause them to die. And from that list, we see where all the science and all the data, which one it supports. So we've looked at several different things. I always told my staff, "How can we be wrong? What else could this be?" So you have to make what in medicine is called a differential diagnosis, and then see what the facts support.
MR. JACKSON: Did you employ a differential diagnosis in this case?
DR. LAPOSATA: Yes, I did.
MR. JACKSON: Do you have to be at the scene in order to understand or analyze information that you get in a police report or photographs or things of that nature?
DR. LAPOSATA: No. We use the police investigation and scene investigation, crime lab reports, photographs taken by the crime lab, by the police at the scene.
MR. JACKSON: Have you qualified as an expert forensic and anatomical pathologist in other courts in Massachusetts and other states?
DR. LAPOSATA: Yes, I have.
MR. JACKSON: Approximately how many times would you say you've qualified?
DR. LAPOSATA: Hundreds.
MR. JACKSON: I want to talk for a specific second about a specific area of interest for the court. Were you provided information and photographs of John O'Keefe's arm and his arm injuries, included with the rest of the autopsy information that you received?
DR. LAPOSATA: Yes.
MR. JACKSON: Were you asked to make a determination about the nature of the wounds specific to his right arm? I know that there are other injuries to Mr. O'Keefe, but I'd like to direct your attention to the right arm.
DR. LAPOSATA: Yes, absolutely. That's what the forensic pathologist does.
MR. JACKSON: Without telling me what your opinion was, were you able to come to an opinion or conclusion about the source of those injuries?
DR. LAPOSATA: Yes, I was.
MR. JACKSON: What methodology did you employ to come to that opinion or conclusion — or those opinions and conclusions?
DR. LAPOSATA: My experience and knowledge and training, along with the appearance of the wounds on the right arm, which fit a pattern. And then knowing that it fits a pattern, I can try to look for — okay, what is the item that caused this pattern? And that would be part of the differential diagnosis that I've used for many, many years in making diagnoses and determinations.
MR. JACKSON: Have you ever been trained in pattern recognition?
DR. LAPOSATA: Yes.
MR. JACKSON: In what capacity?
DR. LAPOSATA: Oh, as a forensic pathologist and medical examiner, a large amount of our work has to do with recognizing pattern injuries, because that's so important — it gives us an idea of what might have caused that injury. And then that's clearly of a lot of importance to the police and the investigators as they're trying to say, "Well, what could have caused that injury?" And so the forensic pathologist could say, "Well, I think it was X or Y." Then they can carry out their investigation armed with that information as to what might have caused the injury on the body.
MR. JACKSON: Is there such a thing in the world of pathologists as the medical literature or academic literature that deals with pattern recognition?
DR. LAPOSATA: Yes.
MR. JACKSON: Are you familiar with some or most of those publications?
DR. LAPOSATA: Absolutely.
MR. JACKSON: Have you ever taught classes on pattern recognition?
DR. LAPOSATA: Yes.
MR. JACKSON: At what level?
DR. LAPOSATA: At the medical school level.
MR. JACKSON: How often have you taught courses on pattern recognition?
DR. LAPOSATA: Oh, at least a handful.
MR. JACKSON: When was the last time you taught a course in pattern recognition?
DR. LAPOSATA: Um, let's see. Last month.
MR. JACKSON: Do any of the courses that you've either — well, let's take them one at a time. Have any of the courses that you've ever taken dealt with wound pattern recognition as it relates to animal wounds?
DR. LAPOSATA: It's part of our basic training and understanding as a forensic pathologist. The board exams we take test for that. Those injuries are described in our basic forensic pathology and medicine textbooks. They appear continually in our medical and scientific journals.
MR. JACKSON: Is that an important skill set to develop — wound pattern recognition as it pertains to animals — as a forensic pathologist?
DR. LAPOSATA: Absolutely.
MR. JACKSON: Do any of those academic courses that you've either taken, or reference works that you've just referred to, deal with dog bites and claw marks specifically?
DR. LAPOSATA: Oh, yes, they do.
MR. JACKSON: In the course or courses that you have taught related to wound pattern recognition, have you ever taught on the subject of dog bite wounds and the recognition of dog bite wounds?
DR. LAPOSATA: Yes, I have.
MR. JACKSON: When was the last time you did that?
DR. LAPOSATA: It would be in the course — in the medical school — several years ago.
MR. JACKSON: Doctor, with regard to dog bite wounds specifically, have you ever performed an autopsy that specifically dealt with dog bite wounds — known dog bite wounds?
DR. LAPOSATA: Yes.
MR. JACKSON: So you've seen them in person?
DR. LAPOSATA: Yes, I have.
MR. JACKSON: Have you ever been qualified in any court in the land, state or federal, on the issue of wound pattern recognition as it pertains to dog bites?
DR. LAPOSATA: Yes.
MR. JACKSON: When was that?
DR. LAPOSATA: The last one I can recall was a federal case involving questions of a police dog.
MR. JACKSON: Did you engage in a differential diagnosis to determine, in your expert opinion and conclusion, the source of those wounds that you saw?
DR. LAPOSATA: Yes.
MR. JACKSON: Did the court qualify you to speak on that issue in court?
DR. LAPOSATA: Yes.
MR. JACKSON: Did you in fact testify in furtherance of your opinions and conclusions in that case?
DR. LAPOSATA: I did.
MR. JACKSON: I want to turn for a second to motor vehicle accidents or motor vehicle incidents. Have you also performed autopsies on known motor vehicle pedestrian incidents?
DR. LAPOSATA: Yes.
MR. JACKSON: How many times would you say you've performed an autopsy on those issues?
DR. LAPOSATA: Hundreds, maybe even a thousand.
MR. JACKSON: Is that a relatively common occurrence — as sad as it may be — motor vehicle pedestrian incidents in the field of forensic pathology?
DR. LAPOSATA: Yes, it is unfortunately.
MR. JACKSON: Have you performed autopsies personally as well as supervised autopsies on motor vehicle pedestrian incidents?
DR. LAPOSATA: Yes.
MR. JACKSON: And what methodology do you employ in furtherance of coming to opinions and conclusions regarding cause and manner of death specific to motor vehicle pedestrian incidents?
DR. LAPOSATA: We look at the scene investigation. We look at what the motor vehicle looked like. We look at hospital records, the autopsy, and then try to understand how the injuries that the pedestrian sustained — what those mechanisms were and how the injuries show that that person interacted with the motor vehicle.
MR. JACKSON: In doing so — in coming up with injury mechanism analysis — is it important to look at and analyze the actual vehicle that is allegedly involved?
DR. LAPOSATA: Yes, you want to look at photographs of that or see it in person.
MR. JACKSON: Is that part of the normal methodology that is employed in the field?
DR. LAPOSATA: Yes, you must look at the photographs. You must see what the vehicle looks like.
MR. JACKSON: Do you also look at the other side of that handshake? In other words, look at the body of the individual — in your case, the decedent — in order to marry the two and determine whether or not the cause and manner of death had something to do with a motor vehicle impact?
DR. LAPOSATA: Absolutely.
MR. JACKSON: Describe that for us, please. What are some of the things that you look for that are part of the normal methodology that a forensic pathologist employs?
DR. LAPOSATA: Well, when we examine a fatality from a motor vehicle, we want to try to understand what led up to it, how the impact occurred, and then what happened after. So we would study information about the injuries to see if we can relate them to certain pattern injuries that would be on the car. There is also evidence of transfer of energy and injuries that can result from the transfer of energy. So using the
MR. JACKSON: So, using the body, looking at the scene and the vehicle, understanding the motions of the vehicle and how they would have produced or would not have produced certain injuries on the body. I'm going to take them one at a time. With regard to animal wounds or dog bites, were you able in this case — using differential diagnosis, using inferential thinking, and using the skills that you've developed over decades of your education, training, and background — were you able to, without telling me what the conclusion is, were you able to come to a conclusion or opinion as to whether or not the wounds that you saw on John O'Keefe's right arm were consistent or inconsistent with dog bite or claw marks?
DR. LAPOSATA: I was able to come to a definite scientific conclusion.
MR. JACKSON: And is that conclusion to a reasonable degree of medical certainty?
DR. LAPOSATA: Yes.
MR. JACKSON: Is it to a reasonable degree of scientific certainty?
DR. LAPOSATA: Yes, it is.
MR. JACKSON: Is it consistent with the training and methodology that you've employed over decades?
DR. LAPOSATA: It is.
MR. JACKSON: I'm going to ask you the same series of questions with regard to the motor vehicle incident. Did you review the autopsy report in an effort to look at John O'Keefe's entire body and all of the injuries that he sustained, not simply his right arm?
DR. LAPOSATA: I looked at everything.
MR. JACKSON: In doing so, were you able to come to an opinion or a conclusion as to the mechanism of injury and whether or not his injuries in total were consistent or inconsistent with a motor vehicle incident or impact?
DR. LAPOSATA: I was able to come to a scientific conclusion.
MR. JACKSON: And without telling me what that scientific conclusion is at this point, did you employ the same methodology that you've explained to the court earlier concerning differential diagnosis, inferential thinking, and decades of training — the education, training, and background that you've described to the court — in coming to your conclusions about whether or not the cause and manner of death was consistent or inconsistent with a motor vehicle impact?
DR. LAPOSATA: Yes.
MR. JACKSON: Your Honor, is there any area that I have not covered to the court's satisfaction?
JUDGE CANNONE: So, I'll let Mr. Brennan ask questions. I may have a couple of questions.
MR. BRENNAN: Good afternoon, Dr. Laposata.
DR. LAPOSATA: Good afternoon.
MR. BRENNAN: If we could start with dog bites. Did you have any specific training in wound pattern recognition regarding dog bites?
DR. LAPOSATA: Yes, it's in our literature — standard textbook. It's standard information that is needed to be a forensic pathologist.
MR. BRENNAN: When did you receive training regarding pattern recognition of dog bites?
DR. LAPOSATA: Beginning when I took my boards, starting in 1983.
MR. BRENNAN: And what did that entail?
DR. LAPOSATA: It entailed reading literature. It entailed reading the standard forensic pathology and medicine textbooks. And it is a subpart of understanding pattern injuries. Dog bite injuries are described in all our journals and all our standard forensic textbooks.
MR. BRENNAN: Other than reading about it when you were studying for your boards, did you have any practical experience where you were engaging in the field in pattern recognition analysis regarding dog bites?
DR. LAPOSATA: Yes, I've had many cases where there have been dog bite injuries.
MR. BRENNAN: When you were studying for your boards, were you doing that or after you —
DR. LAPOSATA: Well, completed. I'm telling you that it's such a basic part that during studying for boards it's a section that we study, and I of course had many cases since then.
MR. BRENNAN: Did you receive any education past reading literature for the boards where you took classes or seminars that taught specifically wound pattern recognition regarding dog bites?
DR. LAPOSATA: It's all part of wound pattern recognition, and it's usually included in literature. If there are lectures about patterned injuries, it's a subset of patterned injuries — like hammer injuries, like gunshot wounds, like baseball bat injuries. There's a huge number of types of patterned injuries that are part and parcel of what a medical examiner has to understand and diagnose.
MR. BRENNAN: Do you remember taking any specific classes or any specific training about wound pattern recognition relative to specifically dog bites?
DR. LAPOSATA: Yes, it's in all the literature that I keep up with.
MR. BRENNAN: Did you take any training or did you attend any classes that involved wound pattern recognition of dog bites?
DR. LAPOSATA: Yes, it's often included in our seminars and case reports.
MR. BRENNAN: Do you list any of those classes or seminars on your resume?
DR. LAPOSATA: Think that I took? No.
MR. BRENNAN: Can you identify one of those classes — where it was, when it was, who taught it, what the name of it was — regarding wound pattern recognition relative to dog bites?
DR. LAPOSATA: I can't give you a specific time and date.
MR. BRENNAN: Can you remember the name of the last class or seminar that you took or completed that has to do with wound pattern recognition relative to dog bites?
DR. LAPOSATA: I can't recall.
MR. BRENNAN: Is there anything in your report that identifies any of your specific education or training on wound pattern recognition as it relates to dog bites?
DR. LAPOSATA: It's in my CV. It's basic knowledge that a forensic pathologist has to have.
MR. BRENNAN: I will ask you about the CV, but Dr. Laposata, I just wanted to ask you about your report first. Is there anything in your report that points to any specific training relative to wound pattern recognition as to dog bites? Is there anything in your report that identifies that for us?
DR. LAPOSATA: In my report I put together the case of what happened to Mr. O'Keefe.
MR. BRENNAN: Okay. As far as your experience though, do you ever make any note in your report about your specific experience and training about wound pattern recognition for dog bites in your report?
DR. LAPOSATA: No, that's not appropriate.
MR. BRENNAN: In your CV, is there anywhere you can point to us where you've had specific training for wound pattern recognition relative to dog bites where we can see that on your CV?
DR. LAPOSATA: No, it doesn't say dog bite training specifically. No.
MR. BRENNAN: Do you have anything on your CV that specifically talks about wound pattern recognition for animals?
DR. LAPOSATA: Those are usually classified within other pattern recognition.
MR. BRENNAN: Do you have anything specific that would alert us in your CV that you've had such specific training on wound pattern recognition for animals?
DR. LAPOSATA: Other than that I've passed my board exams and have practiced for 40 years.
MR. BRENNAN: Have you provided a list of cases where you have testified in court specifically about wound pattern recognition of dog bites?
DR. LAPOSATA: I don't know if I have given a list. I don't keep those kinds of lists.
MR. BRENNAN: You mentioned one case about law enforcement dogs in federal court. When was that case?
DR. LAPOSATA: Several years ago.
MR. BRENNAN: How long would you say, if you had a guess?
DR. LAPOSATA: A couple years — around COVID time.
MR. BRENNAN: Did you testify in that case about law enforcement police dogs?
DR. LAPOSATA: I testified about an individual who had injuries and there was a question as to whether K9 Caper — who was the dog's name — inflicted any injuries on this person.
MR. BRENNAN: And this was in Boston federal court?
DR. LAPOSATA: Springfield.
MR. BRENNAN: Yeah. Boston, right? Is there a difference between law enforcement dog bites and domestic dog bites?
DR. LAPOSATA: Well, they have the same kind of dog jaw. They're taught differently, obviously.
MR. BRENNAN: Would the wound pattern recognition be the same or different if you were looking at it from a law enforcement dog perspective or a domestic dog perspective?
DR. LAPOSATA: The dog would be the same.
MR. BRENNAN: Do you have any other cases that you've testified about wound pattern recognition relative to dog bites?
DR. LAPOSATA: I've testified in hundreds of cases. I can't say that I remember any particular ones.
MR. BRENNAN: Would you be able to identify any of those for us today?
DR. LAPOSATA: No. Too many.
MR. BRENNAN: I'll ask you about accident reconstruction experience. And I mean this respectfully — you don't have a biomechanical or biomedical engineering background, do you?
DR. LAPOSATA: No, I'm not a mechanical engineer.
MR. BRENNAN: You're not certified by APAR or any of those type of organizations, are you, Doctor?
DR. LAPOSATA: No. I relate the injuries on the body to the motor vehicle.
MR. BRENNAN: Have you ever been to a car collision scene and investigated a car collision scene firsthand?
DR. LAPOSATA: Yes.
MR. BRENNAN: And when you've done that, do you have a chance to look at all of the physical materials, the properties?
DR. LAPOSATA: Well, when I go to a scene of a motor vehicle fatality, I look at the pieces that are scattered around. I look at the body. I look at bloodstain patterns. I look at damage to the car. And then the body would go back for the examination at the medical examiner's office. And there would be further examination of the scene by accident reconstructionists and examination of the automobile by specialists who could figure out what motor vehicles do. So it's a part of correlating the injuries to the vehicle.
MR. BRENNAN: You've never written an accident reconstruction report yourself, have you?
DR. LAPOSATA: No, that's not what I do.
MR. BRENNAN: I understand. In this case, what materials did you look at? Because I don't think your report mentions the materials that you studied. What materials did you study as the basis for any potential opinions regarding accident reconstruction?
DR. LAPOSATA: Well, so you would like for me to tell you everything I studied in this case?
MR. BRENNAN: Yes.
DR. LAPOSATA: I have my list here. Should I read?
MR. BRENNAN: That's fine by me.
DR. LAPOSATA: I studied the autopsy report, neuropathology report, toxicology, and associated paperwork from the medical examiner's office. I looked at — I studied 104 autopsy and neuropathology photographs, 70 additional autopsy photos taken by Trooper Watson. I studied Mr. O'Keefe's medical records from the Canton Fire Department and EMS run sheet. I studied the Good Samaritan medical records that also included 35 photographs of the body. I looked at evidence of Mr. O'Keefe's clothing — blue jeans, t-shirt, sweatshirt, boxers, and sneakers. I'm sorry. Um, I looked at photographs that were taken at the crime lab of various pieces of plastic, black, red, and clear. I studied photographs of the outside of Ms. Read's SUV as it was parked at the police garage.
DR. LAPOSATA: I studied the Canton police incident report, about a hundred photographs taken by Canton police of the outside scene. Um, so that gave me a very good idea of what happened in the [unintelligible].
MR. BRENNAN: Have you — were you involved in a case, first, Daniel Tomkins?
DR. LAPOSATA: Um, remind me about that. I've been involved in hundreds of cases.
MR. BRENNAN: Yes, you have. Um, this case was in Franklin County Superior Court. It was a case where you had an opportunity to present testimony regarding blood spatter, which you were qualified as an expert for.
DR. LAPOSATA: Um — I'm sorry. Well, that doesn't quite say what I did, but I remember the case you're talking about.
MR. BRENNAN: Did you attempt — or was there an attempt to have you qualified to talk about accident reconstruction in that case?
DR. LAPOSATA: No, I'm not an accident reconstructionist.
MR. BRENNAN: And do you remember whether or not there was an attempt that was denied to try to have you talk about accident reconstruction in that case?
DR. LAPOSATA: I have no idea. I'm not an accident reconstructionist.
MR. BRENNAN: Okay. Have you — do you have anything on your CV specifically that offers any background on accident reconstruction or accident reconstruction type classes or seminars?
DR. LAPOSATA: Uh, I don't think so.
MR. BRENNAN: All right. Thank you, Dr. Laposata.
DR. LAPOSATA: You're welcome.
JUDGE CANNONE: So can I just ask — Dr. Laposata, you said you've been involved in autopsies with dog bites. Yes. How many?
DR. LAPOSATA: Oh, I've — oh, I've done thousands of cases. Probably 50 or so. They don't — it's not always the cause of death. And then I've um supervised maybe 75 more where dog bites were involved in the case.
JUDGE CANNONE: When was the last one?
DR. LAPOSATA: Um, let's see. Probably two years ago.
JUDGE CANNONE: Okay. Any questions based on my questions? All right. You are all set. I'm going to ask you to step down. Dr. Laposata, we'll get to you sometime this afternoon. Thank you. I do want to give everybody a break, including counsel. Can we do less than five minute arguments on this?
MR. JACKSON: Judge, I'll make this very — [unintelligible] — eminently qualified to speak to both the issue of wound pattern recognition as it relates to dog bites specifically, as well as cause and manner of death as it relates to um vehicle pedestrian incidents or impacts. Uh, the doctor has an incredibly impressive resume, just a touch of which we reviewed during the course of this voir dire for her qualifications. But with regard to the dog bite specifically, she talked about the differential diagnosis that she undertakes — she undertook in this case. She talks about the inferential thinking that she undertook in this case.
MR. JACKSON: She talks about how that is the proper methodology in the scientific community, and specific to the forensic pathology community, in order to come to a determination about wounds and the source of wounds — i.e., was it a dog? Was it another animal? Was it another source? Uh, was it lacerations versus abrasions? Things of that nature. She's obviously done, as she indicated, thousands — if not climbing real close to 10,000 — autopsies that she's either supervised or conducted herself. She actually has, notably, as per the court's last question, she's actually undertaken personally, somewhere close to — I thought it was probably five — uh, autopsies herself dealing with dog bites.
MR. JACKSON: They're not always the cause of death, but sometimes it's attendant to the injuries that led to a different cause of death, but she's undertaken at least 50 — or that's what she estimates, 50 — of those autopsies herself. She's seen dog bites, she's seen dog wounds, she engages in pattern recognition. She also teaches classes on pattern recognition as it pertains to dog bites, and she's eminently qualified to speak to that. In this particular case, she has been able to come to an opinion and conclusion as to whether or not the injuries to John O'Keefe's arm are consistent or inconsistent with dog bites.
MR. JACKSON: And I expect that she would then give that opinion and conclusion to a reasonable degree of medical certainty and to a reasonable degree of scientific certainty as it relates to um her differential diagnosis and her ultimate conclusions concerning the automobile impact. Obviously, many, many more uh autopsies dealing with that, because it's more common. She also engaged in the exact same differential diagnosis. She has training — the sub-field of, or the sub-issue of, vehicle pedestrian impacts is included and subsumed within much of the medical literature that she's been taught on, going all the way back to the 1980s dealing with her boards. And she's consistently passed her boards. She's consistently kept up with the literature. She's consistently engaged in autopsies herself.
MR. JACKSON: So she has firsthand training. She also trains other medical professionals, other doctors, other medical examiners, and she supervises other medical examiners. She's been the chief medical examiner for an entire state. I cannot imagine somebody more eminently qualified to talk about the two subjects that she's been called to talk — well, she's called to talk about several other subjects, but these two subjects that are before the bench right now — than somebody with Dr. Laposata's qualifications. I will submit on the voir dire that we just completed.
JUDGE CANNONE: All right. Thank you, Mr. Brennan.
MR. BRENNAN: I do not think that Dr. Laposata has articulated the experience the way it's been summarized. She could not provide any specific training other than her boards and her references to literature. She could not articulate one single class or seminar that she took that pertained to differential diagnosis of dog bite injuries. She has no specific memory of having any type of experience in differential diagnosis as far as being in a training seminar or advanced education. She has the experience of a medical examiner who has seen what she believes to be dog bites in the past. She has no publications or references that she has studied the issue of differential diagnosis or pattern wound recognition relative to dog bites. If we look at the standard Dr. Russell employed, Dr.
MR. BRENNAN: Laposata does not have any of the merit to be an expert in dog bites. While she has taught, we did not hear about anything in particular that she has taught about specific pattern wound recognition analysis regarding dog bites. She is an experienced medical examiner, has a wealth of experience, past experience in autopsies, but she has no experience that is a basis for her as an expert in being a dog bite expert. Particularly, she mentions one case that she's testified in federal court that we've heard of today, and she has nothing whatsoever in her report or resume to establish that she has used, studied, and knows this methodology. In fact, her CV and her report don't have any basis for one to look at and see that she has any specific experience in dog bites. And so, Dr.
MR. BRENNAN: Laposata, from the Commonwealth's perspective, should not be able to give an opinion regarding or about whether or not the wounds on Mr. O'Keefe were caused by a dog. She simply does not have the training and experience and education and methodology to make her a so-called dog bite expert. Regarding accident reconstruction, she said it best — she is not an accident reconstructionist. She saw some of the materials in this case. Um, but it is a fraction of the materials in this case. She is not in a position to give an opinion whether or not the wounds are consistent with a broken taillight. There is nothing we see on her CV. There's nothing we see in her report.
MR. BRENNAN: There is nothing we heard on direct examination that she has any experience in breaking glass, breaking plastics, and the causation of wounds. It also overlooks the fact that the opinion that would be offered would extend beyond just the wounds on the arm. It would extend to a general opinion that he was not involved in a collision. And that's improper. There's no predicate or basis for it. And so, based on her testimony and absence of being able to provide any education or experience, she should not be able to testify about either of these two matters.
JUDGE CANNONE: Okay. Thank you. Okay.
MR. JACKSON: [unintelligible] Mr. Brennan suggests that she's only been qualified in one court. The federal judge that was handling that case qualified her as a dog expert in that case — not a small thing. Uh, that is a matter of fact, it's a very big thing for Dr. Laposata and her credentials. In addition, she indicated, contrary to what Mr. Brennan just suggested, she indicated that she has been training on wound pattern recognition as it pertains to dog bites for her entire career — not just when she was studying for her boards, but since she's been studying for her boards, and it's been constant and consistent throughout her entire career. She's made these differential diagnoses. She's seen the autopsies. Uh, she's seen the wounds during autopsies firsthand, probably 50 or more.
MR. JACKSON: She's supervised another 75 or more autopsies dealing with known dog bite wounds. She has the credentials. Uh, the court will recall that, for instance, Dr. Isaac Wolfe was called to testify by the Commonwealth. He had absolutely nothing no credentials whatsoever to talk about wound pattern recognition. He was a neurosurgeon and yet he was allowed over Mr. Alessi's objection to talk about and to discuss his opinions and conclusions as to the wound pattern on the back of John O'Keefe's head. Certainly Dr. Laposata brings much more to the table than Dr. Isaac Wolfe. I'm not comparing them. They're apples and oranges. Dr. Laposata — she doesn't have to be a sole dog bite expert to be an expert in dog bites. She doesn't have to be Dr.
MR. JACKSON: Russell, she just has to have that level of knowledge, that level of skill, that level of expertise that's beyond that of the average lay person in order to opine as an expert on a particular issue. She certainly brings that to the table as it pertains to dog bites. And I think her skill and her education, training, and background certainly speaks to the fact that she has that in spades with regard to motor vehicle pedestrian incidents.
JUDGE CANNONE: All right. Thank you. All right. I'll get you my ruling as soon as I can. So we're going to start back up at 2:00 and I expect to go straight through the rest of the afternoon. All right.
COURT OFFICER: Back to session. You may be seated.
JUDGE CANNONE: All right. I appreciate the court personnel waiting so that we could have that voir dire. It was helpful. All right. So my rulings are very similar to what they were this morning. So first of all, on the Daubert analysis regarding Dr. Laposata being able to testify as to the dog bite wounds, I find that she is not qualified. I'm not satisfied that the Daubert requirements have been met — specifically not just the experience but the reliability of the methodology she used and how it was applied. So based on that she cannot testify to the dog wounds and I want to take a minute to differentiate this testimony with Dr. Russell's. I found that Dr. Russell was an expert qualified to testify as to dog bite wounds mainly from her experience in the ER coupled with her being an ME. Dr.
JUDGE CANNONE: Laposata does not have that experience. I found that Dr. Russell's methodology was reasonable and was sufficient and I found that it was appropriately applied. Remember that Dr. Russell was published in the area here. So regarding pages 10 and 11, all of the text on Dr. Laposata's report on pages 10 and 11 that start with the injuries on Mr. O'Keefe's right arm are excluded. Now, moving on to the testimony regarding not being consistent with a motor vehicle strike. I find that Dr. Laposata's opinion on these not being the result of a motor vehicle collision exceed what is within her scope of expertise in some regards, not in all — in some regards significantly, like I said this morning. So on page 17, the first sentence is in.
JUDGE CANNONE: The second sentence — "tail lights are typically made of durable polycarbonate or acrylic plastic" — that is out. I know the Commonwealth objected to, but I'm letting in: "Mr. O'Keefe's patterned injuries on his right arm do not correspond to injuries that could have been produced by irregular fractured plastic pieces impacting the arm." She cannot say tail light but she can say that based on her experience. "His arm had no tissue bruising from impact." That also comes in in the next sentence. "Neither did his skin show any array of irregular, unpredictable, randomly scattered cuts and scrapes at various angles and depths." That's within her realm of expertise as a medical examiner.
JUDGE CANNONE: The next page, though — I may have said this morning that that first sentence — importantly, in review of that and review of the Tompkins case, that first sentence stays out, because to me it seems like that sentence depends on a biomechanical analysis. Factors such as speed and force and the position of Mr. O'Keefe. So that's — oh, I'm sorry. Page 18, the next page regarding the same subject matter. And a portion of the next sentence is also out: "This results in bruising or bleeding under the skin." That's out. But Dr. Laposata can testify that Mr. O'Keefe had no bruising on his arms or torso. And that's it for that sentence. "In particular, Mr. O'Keefe did not have bruises on his legs as shown by dissection of leg tissue and muscle at autopsy." That's it for that.
JUDGE CANNONE: And the conclusions are problematic to the extent that is consistent with this ruling and what we discussed on Friday. So that's it. That was just the text of her report. I have not begun to go through all of the —
MR. JACKSON: There's no PowerPoint with this, your Honor.
JUDGE CANNONE: Right. There is no — all right. Do you intend on displaying any of these photographs? I'm sorry. Do you intend on displaying any of the photographs that are in her report?
MR. JACKSON: Yes. I have to go through it now.
JUDGE CANNONE: All right. So you likely won't get to that today. We've — we've done important work, but we've wasted an awful lot of the jurors' time today. So I want to bring them in. And that — my suggestion is we have to finish, right? We're going to do that now. So that'll give you an opportunity to pull your thoughts together, right? And I expect what I would do — I will go through — that will take me a good amount of time. I will go through the part of her initial analysis that will not include any of the photos, but I may actually go through very specific — and I want to be as — okay. So let that — as possible. Let me know what you intend to put in. All right. And there's a lot of text describing the photos that is out, right? It's just hearsay. Dr. Welcher's PowerPoint was not objected to.
JUDGE CANNONE: There's a big difference. So let's — we'll deal with this — we'll deal with the photographs tomorrow. Okay. Thank you. And we're bringing the jurors in. Did the Commonwealth want to respond in any way?
MR. BRENNAN: No, thank you.
JUDGE CANNONE: Okay. And you have — there's a motion on Dr. Rentschler. We will give that — I haven't read it yet. We'll give that no more than five minutes tomorrow morning each side. This jury — you can tell just by looking at this jury, they're fed up.
MR. JACKSON: So the only thing I want to put on record — I do want the record to reflect that this is obviously over the defense objection. And I just want to make for the record a quick comment. The Commonwealth waited until June 5th to even bring this up, to file a motion regarding Dr. — and all reciprocal — That's number 45. Yes. And the Commonwealth was ordered to file whatever motions they wanted — whatever motions in limine they thought were appropriate — by March 7th. And they did not do that. They were supposed to be heard on March 18.
JUDGE CANNONE: Okay. So the jurors are coming in. We're going to mark the report and the CV for identification. I just need to know.
MR. JACKSON: You just made it. I made it. I wasn't — okay. The point is — go ahead real quick. The point is the Commonwealth has not explained the delay. So making this motion, and we're bound by the rules.
JUDGE CANNONE: So the basis of my ruling was not late disclosure. Okay. Late disclosure — late
MR. JACKSON: Um... disclosure. The Commonwealth says they push — that's not the court's — missing the point. It's the opposite. We got late disclosure. We got late disclosure that they were objecting. They had since March to object. They come in just before Dr. Rentschler testifies, and now they're sort of sandbagging this against us. So I want the record to be eminently clear.
JUDGE CANNONE: Very clear. Mr. Brennan, do you want to respond real quickly?
MR. BRENNAN: Your honor, we can always object even during trial for a foundational issue.
JUDGE CANNONE: And that's consistent with what my rulings were when I allowed other witnesses to testify — that the defense could object if the foundation weren't properly laid. So bring them in, please.