Commonwealth v. Read — Trial ArchiveElizabeth Laposata - Cross
708 linesMR. BRENNAN: Good afternoon, Dr. Laposata.
JUDGE CANNONE: Six minutes until the afternoon [recess].
MR. BRENNAN: Okay.
DR. LAPOSATA: Good afternoon. That's okay.
MR. BRENNAN: You wrote a report in this case, doctor.
DR. LAPOSATA: Yes.
MR. BRENNAN: Do you think that — based on your analysis — was Mr. O'Keefe thrust backwards? Is that what you determined, looking at his head injury?
DR. LAPOSATA: I didn't understand. You had your hand in front of your mouth.
MR. BRENNAN: Sure. I'm sorry.
DR. LAPOSATA: Yeah.
MR. BRENNAN: You talked about a head injury that Mr. O'Keefe suffered.
DR. LAPOSATA: Yes.
MR. BRENNAN: That caused his death.
DR. LAPOSATA: Yes.
MR. BRENNAN: Was that caused by being thrust backwards?
DR. LAPOSATA: The motion was upwards, then down.
MR. BRENNAN: Okay. And the way you just showed it, it could be a fall.
DR. LAPOSATA: Correct.
MR. BRENNAN: Did you have an opinion, looking at his wound, that he was thrust backwards?
DR. LAPOSATA: What do you mean, "thrust"? His body went backwards. There may have been some applied force to it. I don't know about "thrust." I'm
MR. BRENNAN: Asking if you have an opinion. Your words — do you have an opinion about "thrust"?
DR. LAPOSATA: What do you mean, "thrust"?
MR. BRENNAN: Did the forensic pathology diagnosis mean Mr. O'Keefe's body was thrust backward?
DR. LAPOSATA: If you want to say "thrust" as indicating movement that it went backwards, then you could say it was thrust.
MR. BRENNAN: May I approach?
JUDGE CANNONE: Yes.
MR. BRENNAN: Dr. Laposata, I'm showing you page two of your report. I'm just going to ask you to read it, not out loud, and then I can ask you the question after.
DR. LAPOSATA: Yes. Yes.
MR. BRENNAN: Are you familiar with that?
DR. LAPOSATA: Oh, absolutely.
MR. BRENNAN: So, Dr. Laposata, what did you mean when you described that Mr. O'Keefe's body was thrust backward from a standing position?
DR. LAPOSATA: I mean that he was standing upright and his body had momentum and went down and hit at the back of his head. So it was thrust backwards.
MR. BRENNAN: You cannot tell forensically how much momentum he had, can you?
DR. LAPOSATA: No, we don't do those analyses.
MR. BRENNAN: And you can't tell if anything caused that momentum based on the head injury, can you?
DR. LAPOSATA: What do you mean, "causing it"?
MR. BRENNAN: What caused his body to go backwards.
DR. LAPOSATA: Yes.
MR. BRENNAN: And so the amount of force causing him to go backwards — that's not something you can determine from the head wound, is it?
DR. LAPOSATA: No. I can't tell you the amount of force. It was significant, because he had the massive skull fractures.
MR. BRENNAN: Did you say it was significant?
DR. LAPOSATA: Yes. Significant force.
MR. BRENNAN: In modern medicine, there are a number of different machines that can help us see the brain — like a CAT scan, perhaps.
DR. LAPOSATA: Sure.
MR. BRENNAN: MRIs.
DR. LAPOSATA: Yes.
MR. BRENNAN: Would you agree that with modern medicine, the use of MRIs and CAT scans and other tools gives a clinician an equal, if not better, opportunity to examine the brain as actually cutting it and holding it in your hand?
DR. LAPOSATA: No. The actual gold standard is the pathology — to be able to have the brain in your hand, look at it with your naked eye. And we have conferences in the hospital where we meet with radiologists and say what we find at autopsy and see if their radiology was correct.
MR. BRENNAN: Can CAT scans and MRIs show contusions on the brain?
DR. LAPOSATA: Well, they might. Subarachnoid hemorrhages, subdural hemorrhages — yes, they can. Herniations, they can.
MR. BRENNAN: Do you have any doubt about modern medicine and the use of MRIs and CAT scans? Do you think they're inadequate in any way?
DR. LAPOSATA: Well, I'm not a clinician, so I don't use those to diagnose diseases in living patients.
MR. BRENNAN: Dr. Laposata, have you ever had any experience studying the brain in real time — clinically, going in and opening somebody's skull and treating the injury before the person dies?
DR. LAPOSATA: No, I'm not a neurosurgeon.
MR. BRENNAN: You don't have any neurological expertise, do you?
DR. LAPOSATA: I'm not a neurologist. I'm not a neurosurgeon. I'm a forensic pathologist.
MR. BRENNAN: Do you have any clinical experience at all where there's an acute head injury and you're making an effort to observe it and analyze the injury as it progresses in an attempt to save the person's life?
DR. LAPOSATA: I don't treat or diagnose living patients.
MR. BRENNAN: I understand. But as far as your background, have you ever had any clinical experience showing the progress of an actual brain injury in trying to treat it?
DR. LAPOSATA: I understand the physiology of what happens to the brain when it is impacted by something — whether it be a bullet, a boulder, a fall. So I know what happens to the body to cause the changes from that trauma. I don't treat people for those injuries.
MR. BRENNAN: In observing a brain that's in trauma and making determinations of how long it's viable, or whether the person will expire — do you know the process that a neurosurgeon would go through in order to fight to preserve or save the person? Do you know the step-by-step process that they would undertake?
DR. LAPOSATA: To do what?
MR. BRENNAN: To try to operate or save somebody from a head injury, from a brain injury.
JUDGE CANNONE: I'm going to allow it. [unintelligible]
DR. LAPOSATA: Well, it depends on what the brain injury is. If you have a head injury and you have bleeding on the brain that's pushing the brain one way or the other — it would be a subdural — then a neurosurgeon would come in and try to take that blood away so it doesn't compress the brain. So that's something that neurosurgeons do to treat head trauma. They can also put in drains into the ventricle of the brain, and that can relieve pressure in the brain, because brain swelling is a bad thing. So those are some of the things neurosurgeons do to treat brain injuries. And can they remove part of the skull to relieve pressure? Oh, yes, they can do that. It's called a craniotomy. They can take out part of the skull if they need to.
MR. BRENNAN: So there are a number of different steps that a neurosurgeon can take when someone suffers acute brain trauma to try to save the person, isn't there?
DR. LAPOSATA: Well, the job of any doctor is to try to save the human life if you treat living patients. So certainly a neurosurgeon would evaluate the patient and decide if there's any treatment needed that could improve the patient.
MR. BRENNAN: When you've had cases in the past as a medical examiner where there have been issues regarding brain injury, wouldn't you agree that you have sought outside consultation with people who have a higher degree of specialty in brain injury than you?
DR. LAPOSATA: Sometimes what we do is when we're examining the brain, we can call in for a conference and have a neuropathologist come in and review the brain with us.
MR. BRENNAN: And back when you were a medical examiner, you did that on a number of occasions, didn't you?
DR. LAPOSATA: Yes, that's routine.
MR. BRENNAN: The reason why is because there are different specialties in medicine, and some are different and separate from your specialty.
DR. LAPOSATA: Correct. Of course.
MR. BRENNAN: And a neurosurgeon or brain surgeon — it would be a different specialty than
DR. LAPOSATA: Yours. Yes.
MR. BRENNAN: And they're focused on the brain.
DR. LAPOSATA: Yes. A neurosurgeon does brain surgery.
MR. BRENNAN: And so, how many times in your career do you think that you've enlisted the help of neurosurgeons to take a look at brains to help you?
DR. LAPOSATA: I've never needed to speak with a neurosurgeon to look at a brain. Sometimes we call in a neuropathologist and we have a forensic neuropathology conference where we look at brains with the interns and residents.
MR. BRENNAN: How often would you call a neuropathologist?
DR. LAPOSATA: Oh, maybe once a month we would have a routine conference. And again, the neuropathologist is dealing with a person's brain after they already died.
MR. BRENNAN: Correct. So, it's not a clinical setting or a clinical experience of actually watching the brain at work and seeing the injury as it progresses.
DR. LAPOSATA: We don't do neuropathology like that on living people. The person is deceased.
MR. BRENNAN: You had an opinion to the jury today and you said that you believe that Mr. O'Keefe died within 15 minutes.
DR. LAPOSATA: Yes, I think that process would start within 15 or 20 minutes.
MR. BRENNAN: Is that to a reasonable degree of medical certainty, that opinion?
DR. LAPOSATA: Yes, based on the severity of the injury and the brain swelling.
MR. BRENNAN: You're aware that there are numerous level one trauma centers around the country that deal with brain injury, right?
DR. LAPOSATA: Sure.
MR. BRENNAN: And the idea is that people suffer all types of brain injury and if they are given medical attention in a reasonable amount of time, there's a chance they can be saved.
DR. LAPOSATA: Yes, it's possible, but many are so severe that they cause death no matter how fast they can get medical attention.
MR. BRENNAN: In fact, every day when people get the right attention or proper attention, they're brought to level one trauma centers around this country to try to help them or save them. Isn't that fair to say?
DR. LAPOSATA: I would hope so.
MR. BRENNAN: Do you think?
DR. LAPOSATA: Sure.
MR. BRENNAN: When you looked at Mr. O'Keefe's brain, obviously it's after he already expired, correct?
DR. LAPOSATA: Obviously. Yes.
MR. BRENNAN: And so you didn't have any clinical observation of the progress of his injury that night. Did you?
DR. LAPOSATA: I was not observing him. I did not observe how he got his injury.
MR. BRENNAN: When you gave an estimate — or you gave an opinion about how long he was alive for — are you aware that there are certain tests that are done by neurosurgeons when people are suffering brain injuries, when there's an attempt to save them?
DR. LAPOSATA: Sure.
MR. BRENNAN: Have you ever heard of a Gizma score?
DR. LAPOSATA: Glasgow, you mean?
MR. BRENNAN: No, but there's Glasgow — but you've heard of Gizma.
DR. LAPOSATA: It's — it's called the Glasgow coma score.
MR. BRENNAN: Have you ever seen the assessment that a level one trauma center goes through when they're trying to save somebody with a brain injury?
DR. LAPOSATA: I'm generally familiar with the emergency procedures to save somebody's life.
MR. BRENNAN: Have you ever read any statistical studies attempting to correlate brain injury with the time somebody would live for?
DR. LAPOSATA: I'm aware of that and I see that in my practice — people who have survived brain injuries and die of something else. Then I can look at the brain and understand how the brain can heal or react to injuries.
MR. BRENNAN: And many people who suffer a coup injury will go into a neurosurgery center and many of them pass after time, don't they?
DR. LAPOSATA: Now, every case is different, right? Some might live for an hour, hours, weeks, months, or survive the injury. It depends on the case.
MR. BRENNAN: In this case, you don't have any objective criteria to identify the amount of time Mr. O'Keefe would have lived if he had the appropriate help. Isn't that fair to say?
DR. LAPOSATA: I don't think it would have been effective because there were massive skull fractures to the base of the skull and there are cases where the amount of force and energy applied to the head causing skull fractures, breaking the neurons, causing the brain swelling — despite rapid medical treatment, those people cannot be saved. They can't effectively stop the brain swelling. Many people can't be saved.
MR. BRENNAN: Did you know that about one-third of them do get saved?
DR. LAPOSATA: I don't know what you're talking about. One-third of everybody has different sorts of injuries. One-third of what?
MR. BRENNAN: With a clivus fracture. Coup-contrecoup. Are you aware that one-third of those patients survive if they get the proper treatment?
DR. LAPOSATA: It depends on the amount of force.
MR. BRENNAN: Okay. Do — are you aware that a study would show — have you ever read a study by Isaac Wolf on clivus fractures?
DR. LAPOSATA: No.
MR. BRENNAN: Have you read any studies on clivus fractures?
DR. LAPOSATA: Clivus fractures. Yes, I understand what clivus fractures are. It's a part of the base of the skull.
MR. BRENNAN: Okay. And have you
DR. LAPOSATA: Oops.
MR. BRENNAN: Okay. Go ahead, please.
DR. LAPOSATA: Did you — Did you want to —
MR. BRENNAN: No, you go ahead.
DR. LAPOSATA: Oh, I'm sorry.
MR. BRENNAN: Have you read any studies that tell you that with the proper treatment, despite these potentially catastrophic injuries, one-third of patients can survive?
DR. LAPOSATA: No. But that's not the case we have here.
MR. BRENNAN: And so in this case, I asked if you had any objective criteria. You don't have any objective criteria about the progress of Mr. O'Keefe's wound that can be a basis for you to conclude that he would have died in 15 minutes. Isn't that fair to say?
DR. LAPOSATA: No. I understand what happens to the brain when it gets that sort of injury. I understand the time course and the physiology. I've seen hundreds of individuals who've had brain injuries. Some survive for a longer period, some die earlier, and it depends on the amount of force and the amount of brain swelling. And in Mr. O'Keefe's case, we had the massive skull fractures of the base of the brain and immediate swelling and subarachnoid and subdural. So, he had a large amount of force applied to his head which caused the brain swelling and the herniation and the progression of the brain stem down through the foramen magnum that stopped the brain. This is — it was a very forceful impact.
MR. BRENNAN: You examined his brain after you looked at photographs. You can't tell us objectively when his brain swelling started.
DR. LAPOSATA: It started immediately after impact.
MR. BRENNAN: And you can tell us what the progress of that brain swelling was by looking at his post-mortem photos.
DR. LAPOSATA: By looking at the — yes. The postmortem photos and the postmortem examination, I can tell the degree of force from the extensive skull fractures that were present.
MR. BRENNAN: What was the degree of force?
DR. LAPOSATA: It was medium to large.
MR. BRENNAN: Well, that's a wide range. What do you mean — quantify medium.
MR. JACKSON: Objection — comment.
JUDGE CANNONE: Ask the question, Mr. Brennan.
MR. BRENNAN: What does medium to large mean?
DR. LAPOSATA: Enough to cause a lot of fractures to the skull. He didn't just sit down and lie down. If he sat down and lay down, he probably wouldn't have fractured his skull. Correct. That's obvious.
MR. BRENNAN: Yes. Right. And so when you're telling us you can identify that he immediately died or died within 15 minutes, I'm asking you for objective criteria for you to give that opinion. I'm asking you what objective information you have. And so you said that there was a large amount of force.
DR. LAPOSATA: Correct. Sure. Correct.
MR. BRENNAN: Because there were massive skull fractures and there's a lot of energy transmitted to the brain —
DR. LAPOSATA: — starts swelling immediately.
MR. BRENNAN: How do you know this wasn't medium force and not large force?
DR. LAPOSATA: Because of the extensive number of skull fractures.
MR. BRENNAN: So are you saying it was medium or large force?
DR. LAPOSATA: Medium to large.
MR. BRENNAN: Okay. How much force is that? Can you quantify it?
DR. LAPOSATA: No.
MR. BRENNAN: What other objective criteria do you have to support your opinion that Mr. O'Keefe died within 15 minutes?
DR. LAPOSATA: My training and experience of seeing thousands of deceased people from head injuries and knowing some of their clinical course — when they get immediate medical treatment, they don't survive.
MR. BRENNAN: But you would agree many do.
DR. LAPOSATA: It depends on the case.
MR. BRENNAN: And in this case, you didn't have any opportunity to observe the progress of Mr. O'Keefe's injury that night.
DR. LAPOSATA: Correct.
JUDGE CANNONE: I'm going to allow that.
DR. LAPOSATA: I wasn't there. The body told me what happened to it.
MR. BRENNAN: You have no assessment of the development of his brain injury and how much time it took that night. Do you?
DR. LAPOSATA: I do. From understanding the significant skull fractures and the swelling of the brain and the compression of the brain stem — that all happened very rapidly because of the amount of force that caused all those skull fractures on the base of his skull that actually then hemorrhaged into his upper eyelids. That's a large amount of force.
MR. BRENNAN: Was gross edema found on his brain?
DR. LAPOSATA: I think it was swollen. Yes.
MR. BRENNAN: But was that a finding?
DR. LAPOSATA: Yes.
MR. BRENNAN: Where did you see that finding?
DR. LAPOSATA: Well, in order to have the herniation of the brain stem, the brain swells.
MR. BRENNAN: Where did you see that finding?
DR. LAPOSATA: I can't answer that. I just know it from understanding looking at the pathology.
MR. BRENNAN: So, at the end result, at some point, Mr. O'Keefe had gross edema. In order to get the brain stem hemorrhages, the only way you get that is because the brain has swelled — and there's no — after injury, tissue swells and there's no place for the brain to go when it swells except down into the natural hole in the bottom of the skull where the spinal cord goes down. So that's where the pressure goes. So that seeing the brain stem herniation tells you that the brain has swollen a lot, undoubtedly, but it doesn't tell you when it began to swell or the progress of that swell, does it?
DR. LAPOSATA: I don't know what you mean.
MR. BRENNAN: You see — inevitably, because of the swelling, there's the suffocation, but when you see that, you don't know when the swelling began or how quickly it progressed. You can't tell that from an autopsy.
DR. LAPOSATA: Yes, you can because of the severity of the skull fractures. I know there was a lot of force and that force applied causes you to go unconscious, then your brain swells. If there was just like one skull fracture, then that's a little bit different. But this was massive skull fractures on the base of the skull. So there's a lot of force applied. So I know, because there's a lot of force applied to cause the skull fractures, that the brain would swell rapidly.
MR. BRENNAN: You would be unable to identify the rapidity of the swelling if you don't know the amount of force. Isn't that fair to say?
DR. LAPOSATA: Well, I do know the amount of force because of the amount of skull fractures — in your words, medium to large force. Yes.
MR. BRENNAN: You've heard of periorbital ecchymosis?
DR. LAPOSATA: Yes.
MR. BRENNAN: And that's sometimes called raccoon eyes.
DR. LAPOSATA: Well, periorbital ecchymosis just means bleeding and bruising around the eyes.
MR. BRENNAN: And you saw the bruising around Mr. O'Keefe's eyes, didn't you, in the photographs?
DR. LAPOSATA: Well, this wasn't bruising caused by blunt force trauma to the eye. It was bleeding in the upper eyelid because the plates above the eye and the base of the skull were fractured — by the brain hitting them. So that's a result of basilar skull fractures and not the application of force directly to the eye.
MR. BRENNAN: Would you agree it takes a few hours for the bleeding to accumulate in the person's eyes?
DR. LAPOSATA: No. As soon as you break the skull bones and the heart's pumping, the blood comes out of those injuries. It starts to accumulate right away. It starts within minutes. You can see it.
MR. BRENNAN: So, you would disagree with the suggestion that it takes at least one to two hours for that bleeding to occur in the eyes. You disagree with that?
DR. LAPOSATA: I do disagree with that. It starts immediately.
MR. BRENNAN: Do you have any studies that you've relied on or literature or support for that?
DR. LAPOSATA: I understand the physiology of what happens when you get those skull fractures and the density of the blood vessels, and if your heart is pumping you pump the blood out of those broken blood vessels into this small area above the eye, and it can happen within minutes. Do
MR. BRENNAN: You have any studies or literature to support that?
DR. LAPOSATA: It's my training and experience. I can't cite you a particular article at this time. I could certainly go look it up and bring it to you.
MR. BRENNAN: Okay. Let me ask you questions about the wounds to the back of Mr. O'Keefe's head.
DR. LAPOSATA: Yes.
MR. BRENNAN: You see a linear abrasion.
DR. LAPOSATA: Yes.
MR. BRENNAN: Vertical lines.
DR. LAPOSATA: Yes.
MR. BRENNAN: Now, would you characterize this as a classic wound caused by falling backwards and landing on your head?
DR. LAPOSATA: What do you mean — every wound is different. Every wound is different. Sure. Every person's different. Every way you get injured is different. And so if somebody falls backwards on their head and suffers the basilar fracture, the wound from your perspective can look different. It depends on the impacting surface.
MR. BRENNAN: Wounds on the same surface — say two people fell on the same surface. Could they have different wounds on the back of the head if they suffered the same injury?
DR. LAPOSATA: In theory — well, if they fell, if they rotated their body, if you could reproduce something exactly, then you would see the same wound patterns.
MR. BRENNAN: This wound pattern is typical of falling backwards on a hard surface, isn't it?
DR. LAPOSATA: We know it's from falling backwards and striking something hard.
MR. BRENNAN: Can the frozen ground be hard?
DR. LAPOSATA: A frozen ground can be hard, but it doesn't fit the pattern in this injury.
MR. BRENNAN: We'll get to that. But is it hard enough to cause a basilar fracture?
DR. LAPOSATA: It can cause a skull fracture.
MR. BRENNAN: The frozen ground is different than a sheet of ice, right? It's not smooth and flat like a sheet of ice, is it?
DR. LAPOSATA: It could be, I guess.
MR. BRENNAN: Okay. You mentioned there's some granular patterns in this wound.
DR. LAPOSATA: Yes.
MR. BRENNAN: The area in front of 34 Fairview, the frozen ground. Do you know if there were any impediments in the lawn that was frozen — in the what? Oh, the lawn. Yeah. Yeah. Sorry.
DR. LAPOSATA: Yes. I saw the scene photographs when the snow was removed and it was like winter lawn grass. So it was some green, some brown that was pushed down and like straw that was going different directions, which wouldn't give you that pattern.
MR. BRENNAN: Did you see the exact area where Mr. O'Keefe last moved?
DR. LAPOSATA: I saw that general area and there were a lot of photographs.
MR. BRENNAN: Yes. You say general area. Can you tell us that you saw photographs of the spot where Mr. O'Keefe was lying when he was found?
DR. LAPOSATA: Yes, that general area.
MR. BRENNAN: Could you see the ground where his head was? Can you identify that?
DR. LAPOSATA: Yes. With the scene investigation, they shoveled the snow off of that area. And you had never
MR. BRENNAN: Had a chance to go out to that scene yourself. Did you?
DR. LAPOSATA: No, I just looked at all the photographs.
MR. BRENNAN: You cannot see what's under the grass and the dirt, can you?
DR. LAPOSATA: Well, dirt's under the grass.
MR. BRENNAN: Well, do you know if there's any rocks or impediments or bumps?
DR. LAPOSATA: It was a smooth surface covered with grass. The front lawn was a smooth surface. It was a flat surface. Flat, covered with grass.
MR. BRENNAN: Okay. And do you know what was under the grass? Whether it was any pebbles, rocks, debris?
DR. LAPOSATA: I didn't see any from the photo.
MR. BRENNAN: Correct. But you don't have any firsthand knowledge of that exact area where he ended — what the turf was like. Do you
DR. LAPOSATA: I saw photographs of that lawn where they removed his body from.
MR. BRENNAN: So you're relying solely on the photographs. Is that fair to say?
DR. LAPOSATA: Correct.
MR. BRENNAN: Do you know if Mr. O'Keefe was wearing anything that could cause abrasions when he landed, to cause that scraping pattern in addition to the linear abrasion?
DR. LAPOSATA: He did have a baseball hat on, but that would not cause that pattern.
MR. BRENNAN: The area of the abrasions, is that in the area of the level of where a baseball hat would be on the back of somebody's head?
DR. LAPOSATA: It could be.
MR. BRENNAN: Could be. If somebody hits the ground and falls backwards, can they slide? And if they're on an incline, what if they're thrust?
DR. LAPOSATA: Well, if you fall backwards on an incline, your body might move.
MR. BRENNAN: Well, what if you fall backwards on flat ground? Does the body — can it move after it falls?
DR. LAPOSATA: Not really. Maybe a little. From the momentum of the impact, it might move slightly, but not really.
MR. BRENNAN: So, when a person falls backwards and lands, you don't think the head has any room for movement?
DR. LAPOSATA: Not significant.
MR. BRENNAN: Well, not significantly. Maybe just a quarter inch, half inch.
DR. LAPOSATA: No, it's possible. Okay.
MR. BRENNAN: And did you see the scrapes around the wound on Mr. O'Keefe's head?
DR. LAPOSATA: Of course, I saw them. Yes.
MR. BRENNAN: And they're all within what — about an inch?
DR. LAPOSATA: What are you describing? What part are you describing? The tearing — the laceration of the scalp or the vertical abrasions?
MR. BRENNAN: The vertical abrasions.
DR. LAPOSATA: There were maybe an inch, inch and a half.
MR. BRENNAN: Inch, inch and a half. Do you think that if someone fell backwards and landed on the head, they could move an inch, an inch and a half?
DR. LAPOSATA: Well, he landed on something that had a ridge on it to cause the laceration in the scalp, and then with a little bit of movement, those vertical scratches were caused by some kind of pebbly surface.
MR. BRENNAN: You mentioned that the orbital bones were broken and you had opined and it was caused by the brain. Do you agree that a brain is very soft, consistent with, for example, tofu?
DR. LAPOSATA: Oh gross. What do you mean? It is soft. Is it that soft? Is that the texture of it? Well, it depends on what kind of tofu you have.
MR. BRENNAN: Okay. Okay. Do you think that the orbital could have broken from the break on the back of the skull and caused the orbital break instead of the brain?
DR. LAPOSATA: The orbital plate fractures. If you look at the base of the skull after you take the brain out, you can see the fractures go up from the back to the front into the orbital plate. Sometimes when you fall backwards, the brain can also slap those orbital plates and cause some damage. But I could trace the fractures from the point of impact along the base of the skull to the part of the skull over the eyes.
MR. BRENNAN: Do you think the base of the skull break, when it separates, could have caused those orbital fractures?
DR. LAPOSATA: I don't understand your question.
MR. BRENNAN: Okay. When Mr. O'Keefe incurred that head injury — the basilar fracture — do you think that the pressure, the damage from that basilar fracture, the separation, could have caused the orbital breaks in his eyes?
DR. LAPOSATA: Well, the fracture of the plates above the eye — when the blood is still pumping, there's a space there where the blood can come down into the upper eyelid.
MR. BRENNAN: So, you described the brain as causing that break. I'm asking you: could it have been from the basilar fracture — from the skull fracture?
DR. LAPOSATA: Yes. The fracture was caused by the impact to the back of the head, radiating to the front of the base of the skull.
MR. BRENNAN: So when you told us on direct it was from the brain that caused those fractures — was that just a summary, or is that to a reasonable degree of medical certainty?
DR. LAPOSATA: Well, sometimes the brain can also, in a fall, flap and hit those. But in this case, I could also see that the skull fracture started at the back and came to the front. But it could also be contributed to by the brain hitting those delicate bones.
MR. BRENNAN: I guess my question is: when you've provided the opinions generally of what you believe and what you've seen, are these general opinions? Are they actually specific opinions based on the facts of this case?
DR. LAPOSATA: Well, there are opinions based on my examination of this case, but all that's based on my 40 years of training and experience.
MR. BRENNAN: Well, you — when you told us about the brain causing those orbital fractures, you would agree with me, at least now anyways, that it very likely could have been the basilar fracture that caused those breaks.
DR. LAPOSATA: Yeah, both. It could have been both. Sure.
MR. BRENNAN: Okay. Could it have been just the basilar fracture?
DR. LAPOSATA: That's possible.
MR. BRENNAN: When you offered the opinion to a reasonable degree of medical certainty, had you considered the basilar fracture as the source of those breaks?
DR. LAPOSATA: Of course.
MR. BRENNAN: Is there a reason you didn't share that with us and you just said it was the brain?
DR. LAPOSATA: I had no reason not to share it.
MR. BRENNAN: Okay. Was there any depressed fracture to Mr. O'Keefe's skull?
DR. LAPOSATA: No.
MR. BRENNAN: Can you tell us a little bit about a depressed fracture? Depressed fracture is different than what we saw with Mr. O'Keefe, isn't it?
DR. LAPOSATA: A depressed fracture is when something fractures the skull and then pushes the skull and moves the skull inward. This just had a fracture, but it didn't move the skull inward.
MR. BRENNAN: And you've seen depressed fractures in your practice over 40 years, did you say?
DR. LAPOSATA: Of course.
MR. BRENNAN: In those 40 years, depressed fractures can happen from sharp objects.
DR. LAPOSATA: Sure.
MR. BRENNAN: Pointed objects.
DR. LAPOSATA: Sure.
MR. BRENNAN: If someone hit a person in the back of the head with enough force with, like, a hammer, for example, that could leave a depressed skull fracture, couldn't it?
DR. LAPOSATA: Certainly, you can hit somebody on the head with a hammer and cause the fracture, and then the continued force will move that fracture into the brain.
MR. BRENNAN: There was no depressed skull fracture in this case, was there?
DR. LAPOSATA: Correct.
MR. BRENNAN: You gave some opinions today about — well, you gave some opinions about wounds on Mr. O'Keefe's arm. I'd like to talk to you a little bit about that.
DR. LAPOSATA: Sure.
MR. BRENNAN: Could we have that photo brought up, please? Do you see all of those superficial abrasions?
DR. LAPOSATA: Yes, I see patterned injuries, right?
MR. BRENNAN: Would you agree that they're superficial abrasions?
DR. LAPOSATA: Yes, they go along the skin surface.
MR. BRENNAN: How many punctures would you identify in that photograph?
DR. LAPOSATA: Let's see. There may be some punctures like around the elbow. Consistent with the teeth puncturing. Most of them are the teeth scraping along the skin.
MR. BRENNAN: I'm not going to ask you what you believe the cause was. I'm going to ask you just about the wound. How many punctures do you see?
DR. LAPOSATA: Well, this doesn't show — there are other photographs which show more of them, but there's the little dot-like areas. You could call an area of skin puncture.
MR. BRENNAN: Can you tell us from this photograph how many punctures you would say are in that photo?
DR. LAPOSATA: I didn't count them.
MR. BRENNAN: Did you suggest that there was more than one puncture on that wound?
DR. LAPOSATA: I think I see more than one. Yes. Pardon me. I see more than one on there.
MR. BRENNAN: Okay. Could you give us a count of how many punctures you see?
DR. LAPOSATA: Well, without looking at all the photos, I couldn't give you a correct number.
MR. BRENNAN: Okay. You've written a report, haven't you?
DR. LAPOSATA: I — what?
MR. BRENNAN: You wrote a report.
DR. LAPOSATA: I did.
MR. BRENNAN: And in your report, you describe many of those abrasions as punctures, don't you?
DR. LAPOSATA: Yes.
MR. BRENNAN: And a puncture isn't just a scratch. A puncture is a penetration of the skin, isn't it?
DR. LAPOSATA: Yeah. A point-like penetration.
MR. BRENNAN: A puncture has a very specific medical meaning, doesn't it?
DR. LAPOSATA: Yes. It's a point-like penetration of the skin.
MR. BRENNAN: And according to you, there are many punctures in that wound.
DR. LAPOSATA: Yes, I can see one, two, three, four, six or seven.
MR. BRENNAN: Can medical professionals disagree on opinions about wounds and causes?
DR. LAPOSATA: I suppose they can.
MR. BRENNAN: You also gave some opinions that you did not believe that Mr. O'Keefe's scratches were caused by having some impact with broken pieces of plastic or glass.
DR. LAPOSATA: Correct. They weren't caused by that.
MR. BRENNAN: Broken plastic or glass can cause a number of different angled wounds, can it?
DR. LAPOSATA: It causes an array of irregular, random injuries.
MR. BRENNAN: It can have infinite different patterns, couldn't it?
DR. LAPOSATA: There's nothing to hold a wound from a broken shard to be north or south or east and west. It all depends on how the force is impacted on the body.
MR. BRENNAN: True. I'm not quite clear on your question. I'll try to do better. When you're talking about shards of broken glass or broken plastic, there is no set direction that they may cut somebody, is there?
DR. LAPOSATA: Well, it would depend on the case and how those occurred.
MR. BRENNAN: They can happen in many different forms as far as depth.
DR. LAPOSATA: Yes. Well, anything's possible.
MR. BRENNAN: How about length? What about length? Wouldn't that change? Couldn't that change depending on how the injury occurred? The length of the wound?
DR. LAPOSATA: Sure.
MR. BRENNAN: And in this case, you talked about your opinions of injury relative to a motor vehicle, didn't you?
DR. LAPOSATA: That was something I considered.
MR. BRENNAN: That's something you considered. Did you know much about the details of the motor vehicle in this case?
DR. LAPOSATA: Yes.
MR. BRENNAN: Okay. When you considered your differential diagnosis, did you consider whether there was any DNA on the vehicle?
DR. LAPOSATA: I didn't look at any of that. I'm sorry. I did not look at any DNA.
MR. BRENNAN: Did you know if there was any hair on the vehicle?
DR. LAPOSATA: I don't know.
MR. BRENNAN: Did you consider the scene itself where there may have been a debris field? Did you take a look at the debris field in this case?
DR. LAPOSATA: I know there were photographs of various pieces of plastic around the area where the body was found.
MR. BRENNAN: And do you remember where those pieces were found?
DR. LAPOSATA: Somewhat. Yes.
MR. BRENNAN: Did you have an opportunity to consider other evidence like a shoe in the area near where Mr. O'Keefe was found?
DR. LAPOSATA: I know one shoe was on his foot at the hospital, the other was at the scene.
MR. BRENNAN: Do you know if his hat stayed with him after he landed on the ground?
DR. LAPOSATA: The hat was in the area where his body was found.
MR. BRENNAN: Did you consider — did you take a look at his pants? The back of his pants.
DR. LAPOSATA: I looked at that. Yes.
MR. BRENNAN: Okay. What did you see when you saw the back of his pants?
DR. LAPOSATA: Well, because he had bled from the back of his injury and he was on a hospital gurney, some of that blood came down, so some of the blood was on the back of his pants.
MR. BRENNAN: Did you see anything else other than blood on the back of his pants?
DR. LAPOSATA: I don't remember. I'm sorry. I don't remember if I saw anything else.
MR. BRENNAN: Did you look, when you were doing your differential diagnosis, did you look at any evidence other than physical evidence? Did you look at any data evidence?
DR. LAPOSATA: I don't know what you mean, data.
MR. BRENNAN: Like data you would find on a cell phone?
DR. LAPOSATA: No.
MR. BRENNAN: Did you look at any of the data evidence from the defendant's Lexus?
DR. LAPOSATA: No. Other than looking at the contours of the back to see if it had impacted Mr. O'Keefe.
MR. BRENNAN: When you were doing differential diagnosis, did you look at any information that would tell you what the speed of that impact may have been or allegedly was?
DR. LAPOSATA: Well, it didn't hit him, so it doesn't matter.
MR. BRENNAN: Okay. So you didn't care to know anything about the car, the data in the car, because you had already formed your opinion.
DR. LAPOSATA: It did not hit him. So it was not relevant to my opinion. I could — by looking at the body — I could tell that there was no evidence of impact with a vehicle. So whether the vehicle was going slow or fast is not relevant.
MR. BRENNAN: And so you didn't — you didn't try to get any information about the speed of the vehicle. It was totally irrelevant to you.
DR. LAPOSATA: Correct.
MR. BRENNAN: And did you also disregard — well, let me ask you. Do you ever look at statements?
DR. LAPOSATA: I look at witness statements if they're available to me.
MR. BRENNAN: Were any of the defendant's statements made available to you?
DR. LAPOSATA: I did hear some of them.
MR. BRENNAN: Did you consider the ones that you heard?
DR. LAPOSATA: Of course.
MR. BRENNAN: Which ones did you hear?
DR. LAPOSATA: I really can't answer that. I don't know what — you'd have to give me an example.
MR. BRENNAN: You said that when Mr. O'Keefe was first incurred his injury, do you think that he was unconscious?
DR. LAPOSATA: Yes, I think that the severity of the impact made him immediately unconscious.
MR. BRENNAN: So if hypothetically Mr. O'Keefe incurred his injury sometime around 12:32, is it your opinion that he never moved again until he was moved physically by somebody else?
DR. LAPOSATA: Well, I don't know the exact time that he got the injury on the back of the head, but after that time he could not carry out any purposeful activity.
MR. BRENNAN: May I approach? Sidebar, Your Honor?
JUDGE CANNONE: Okay. All right. So jurors, rather than keep things — I'm going to excuse you for lunch. Lunch will be about 50 minutes or an hour. And when you come back, we'll go straight through the afternoon. We're going to do everything. Please follow me.
COURT OFFICER: Okay, thank you. Excuse me.
JUDGE CANNONE: All right. So, Mr. Brennan, if you can briefly tell me what it is you want to introduce through this witness.
MR. BRENNAN: To remind the court, on direct examination, the defense promoted Dr. Laposata's credentials, including specifying her successes with the Station nightclub fire and her running of her office. I have an audit from 2005, State of Rhode Island, Department of Health. In that audit, it paints a very different picture than was presented on direct examination. In that audit, they investigated the chief medical examiner and they compiled a history of statistics for the medical examiner, which was Dr. Laposata. There were no reports, incomplete reports, and unsigned reports of over 1,500 individuals between June 30th, 2000 to June 30th, 2005. So in that five-year period, there was an extraordinary number of individuals that weren't properly attended to, showing negligence, if not malfeasance.
MR. BRENNAN: It was recommended that the standards, policies, and practices of Dr. Laposata's office would need to change because of the extraordinary backlog of cases regarding autopsies. In addition, it was noted that the incomplete reports confirmed that there was significant concerns with the historical management practices of the medical examiner's office shortly after Dr. Laposata resigned. In addition, it was promoted that in the station nightclub fire, Dr. Laposata had a heroic effort. And in her testimony, she also noted that it was a failure — or implied there was a failure — because the medical examiner or somebody did not go to the scene to look at the turf in front of 34 Fairview Road. She suffered the same criticism for hours and hours after the station nightclub incident.
MR. BRENNAN: She was contacted with a request to come to the scene. She refused to come to the scene, did not appear for at least 17 hours. Directly on point to the claims that she's making against other people is the same conduct she engaged in on a more extreme scale. She testified in Commonwealth v. Tompkins. She was listed and testified as an expert, attempted to testify as an accident reconstructionist, which was denied. Inevitably, the court made conclusions. Actually, in that case, her efforts to be an accident reconstructionist were denied. Then she testified in a case called Patino. And in Patino, after testifying, she received great scrutiny and criticism from the court. The court noted on page 1025 of the transcript, when Dr.
MR. BRENNAN: Laposata gave the testimony, she knew the boy wasn't like this because he fell off a bed. She knew the mother was lying. She read the text messages and knew the defendant had beat the boy. The only reason I conclude that she offered such testimony was to distance the defendant from causing those bruises, setting up an argument against malice, but instead destroyed her credibility. On cross-examination, she came across as a hired gun. Sometimes it's seemingly small things that impeach a witness's credibility. Inevitably, on the credibility determination by the court, the court would agree the jury gave greater weight to the testimony of Dr. Gillson and Snelling than they did Dr. Laposata for the reasons I addressed previously.
MR. BRENNAN: The jury was justified in discounting her testimony and concluding the other doctors testified apparently impartial. While she appeared as a paid advocate, at least on this occasion, without imputing the witness's integrity, because that witness is known to the court. But in this case, when she testified, she was not credible. That's a direct credibility determination by another tribunal about her testimony. So, I would like to — and that's why I came to sidebar rather than ambush — to give the court notice that I'd like to get into the criticisms regarding her run as medical director that led to her resignation after she was audited and left 1,500 bodies unattended or incomplete.
MR. BRENNAN: Also get into the criticism she received for her handling, or lack of handling, of the station nightclub fire. And finally, get into the credibility — adverse credibility determination in the Patino case.
JUDGE CANNONE: So, I'm not familiar with the Patino case, so I'll need a copy of that.
MR. BRENNAN: Yes.
JUDGE CANNONE: All right. Mr. Jackson, I'll hear you.
MR. JACKSON: Thank you, Your Honor. First of all, Mr. Brennan said that the audit established that, as the chief medical examiner, the audit revealed that she left 1,500 bodies unattended — was his quote. Bodies unattended. That's absolutely not what happened in that situation. It was a political situation. The medical director for Rhode Island came in and took over. He began to change protocols and cut quality control. He said he did not want a second set of eyes on any of the reports — not the autopsies. There was never a suggestion, ever, that an autopsy was not performed efficiently and timely. Never. The reports that were attended to — the autopsies — it was a two-tiered set of criteria that Dr. Laposata put in place to establish quality control and quality assurance.
MR. JACKSON: First, the medical examiner conducts the autopsy and writes a report. Then the doctor herself — the chief medical examiner — because she is a perfectionist, determined that she was going to establish a protocol in which she would put eyes on every single report, hundreds and hundreds of reports per year. In doing so, she had to prioritize which reports were going to take priority — which ones were being subject to litigation, which ones were going to be subject to criminal cases, and which ones were never going to be subject to any review at all.
MR. JACKSON: For instance, if somebody was found — let's say, somebody without family, etc., found unidentified — there's no litigation attended to that report; she would put that report aside and get to that report after she dealt with the reports that were on sort of the front burner, if you will. By the way, none of the reports were ever not done. They were all completed. There were a small fraction of reports, according to the audit and according to Dr. Laposata herself, that had to take a back seat when the medical director came in in 2005. By the way, this is 25 years ago, right? These are autopsies that were performed, and the audit was performed for autopsies and reports dealing with the year 2000. It's 2025. This is 25 years ago when the new medical director came in for Rhode Island.
MR. JACKSON: He said, "I don't want any review of any of the reports, because it's more efficient and it's faster to get the reports out in a timely fashion." She resisted and said, "I will never, ever" — and she was published saying this — "I will never, ever sacrifice quality for speed. I want the highest quality coming out of this office." They had a difference of opinion. She walked away because he was asking her — the new medical director was asking her to sacrifice the quality of the conduct that she was undertaking as the chief medical examiner for the state of Rhode Island. So, it's a very different circumstance than was just suggested. No bodies were ever left unattended, ever. Certainly did not involve the other phrase that was just used — negligence and malfeasance.
PARENTHETICAL: [unclear]
MR. JACKSON: , Your Honor. The Tompkins case dealt with an issue dealing with accident reconstruction, which she's not undertaking. I'm not asking her, and she isn't saying that — I've excluded that part of it based partially on the Tompkins case, right? And I don't know anything about the Patino case.
MR. JACKSON: There's a backlog, and they had a very public political fight over it. Number two, with regard to the station nightclub fire, her staff was on location immediately. She, as the chief medical examiner, was there the same day. So that's of no legal moment. That's of no consequence. It certainly has nothing to do with her opinions and conclusions in this case. The Tompkins case — we've already talked about that in
MR. JACKSON: And what I would say is, given the fact — look, we don't know what the facts of that case were. We don't know what the trial was about. We don't know what the cross-examination was about. We don't know why she was called. We don't know what she looked at. We don't know why she was looking at what she did look at. We don't know why she didn't look at things that she might not have looked at. We don't know why her opinions and conclusions were ultimately rendered. We would have to have a trial within a trial, which I would be happy to undertake if someone gives me a file. Happy to do that, but I don't think we want to do that. I don't think the court wants to do that. Also, I will say I don't think that attacking this witness's credibility is in good faith by the Commonwealth. Mr.
MR. JACKSON: Brennan himself has hired Dr. Laposata personally, no fewer than four or five times — maybe it's three or four times — he knows her qualifications. He knows the quality of her work. He's actually undertaken to consult with her as a medical examiner and a consultant. So, I don't believe that these last two issues are in good faith. I don't believe the station fire has anything to do with anything, because she was late — according to Mr. Brennan — in coming to the actual location. She was there the same day, and she had an entire staff that was there immediately. And in terms of the audit, it's a 25-year-old political fight that isn't quite what Mr. Brennan made it out to be. So, I don't think any of these things are relevant for cross-examination. I'll submit.
JUDGE CANNONE: All right.
MR. BRENNAN: I just want to make a note that attorney Jackson has a way with words to just inflate or make things up. I have not hired Dr. Laposata four or five times, and that is just a mischaracterization he likes to do for the public. But the reality is I used her two times, and the last time I used her, I'm not going to disclose why anymore without her in the room. But the suggestion that somehow I'm endorsing the qualifications of this witness — I am not. That's what I'm going to say on the record.
PARENTHETICAL: [unclear]
JUDGE CANNONE: those now.
JUDGE CANNONE: Okay. So, the first two — the backlog issue, if we can call it that, with the ME's office — I'm going to allow the Commonwealth to get into that through questioning. Same with the station nightclub fire. Based on the testimony already in evidence, those two areas — and Mr. Jackson, without leading, you can certainly go back and rehabilitate her. But those two will come in. I'm not going to do anything with Tompkins, because I used it for the basis of keeping out what appeared to me to be mechanical biomechanical engineering opinions of this witness, and she's not qualified to do that. So, I have not read Patino. I will read it over the lunch break and see if we get anywhere with that. Okay. So I need a copy of that. I want you to give Mr. Jackson a copy as well.
MR. BRENNAN: I will.
JUDGE CANNONE: Okay. So, all right. I want to address the issue of the — okay. So, let's
MR. JACKSON: Sure. Can we mark them all as one A, B, C? I have no preference one way or the other. It's just three.
JUDGE CANNONE: Can I just have them marked for ID? Yeah. Yeah, you know what? Show me that one again, too, please. It's H quadruple H and I through I. All right. All right. Mr. Brennan, there's no objection to these coming in through another witness. So you agree that they'll be coming into evidence?
MR. BRENNAN: I'll stipulate.
JUDGE CANNONE: All right. And what's the objection to them coming in through Dr. Laposata?
MR. JACKSON: It's not part of her report or opinion. She's gone beyond reporting X-rays and giving an opinion. I think that suffices. I think it's beyond the scope of her testimony to begin with.
JUDGE CANNONE: Be gracious with it. Dr. Brennan — so you'll stipulate to them prior to Dr. Rentschler?
MR. BRENNAN: I will. So you can use them with Dr. Rentschler.
MR. JACKSON: I expected that I could because he certainly gives them his analysis and opinion, but I shouldn't be subject to the entry of evidence in the defense case. I understand she's a medical doctor. I don't — I cannot understand.
JUDGE CANNONE: So what do you want to ask her about them? Are these the X-rays that you reviewed?
MR. BRENNAN: Yes, that's it.
JUDGE CANNONE: Okay. Okay. So go ahead.
MR. BRENNAN: That's all I was going to ask. I won't have a problem. Okay. Yeah, I have no problem with that in that form. Literally — so the X-ray that we talked about a little bit earlier. Yes, this is the right hand. Yes, that's the arm. Sorry, forearm. Yes, that's the upper arm.
JUDGE CANNONE: All right. So they're cumulative, but if they're coming in anyway, I will let you put them in.
MR. BRENNAN: Thank you.
JUDGE CANNONE: All right. So the last thing is Dr. Rentschler. I need to hear argument from both sides.
MR. JACKSON: I have a new PowerPoint.
JUDGE CANNONE: So I'll hear both of you. Mr. Brennan, I'll hear you on your motion.
MR. BRENNAN: We've received the most recent update to Dr. Rentschler's PowerPoint. There are some additions, different analysis in that PowerPoint. This is within 24 hours of him testifying. There are opinions on page 6 and 8 of his May 7th, 2025 report. And there are a number of numbers that we have objections to. Dr. Rentschler just generally shouldn't be allowed to express opinions and conclusions about what he thinks about the case or about other witnesses.
JUDGE CANNONE: So I'm looking — I think at the new copy, the new one from today, page six. So what I have are just photos with measurements. I don't know what the testimony that corresponds with those corresponds to. I've read obviously the report of Dr. Rentschler from May 7th. That does not seem to detail everything, and that's no criticism. I'm just saying it's a scant report. So I don't know what the opinions are regarding these.
MR. JACKSON: I'm sorry. I didn't want to speak. I apologize. I just want to let the court know — based on suggestions last night, we significantly edited the entire thing. Literally every single slide that we had a problem with. A couple —
JUDGE CANNONE: I see that a lot of the hearsay has been removed. Thank you.
MR. JACKSON: I'm sorry. I can identify this report on that.
JUDGE CANNONE: All right. So what are you both — I'm going to hear from Mr. Brennan first. What are you objecting to as the report now stands? I have the most recent copy of the report now.
MR. BRENNAN: So, 9 through 27. Slides 9 through 27 or pages. Slides 9 through 27 now have Dr. Rentschler identifying and attempting to match different abrasions with different holes in Mr. O'Keefe's sweatshirt. And so basically what he is trying to do is to suggest that there are different amounts of abrasions relative to the amount of holes, or perhaps he might want to testify that the holes in the sweatshirt were in a different place on Mr. O'Keefe's arms than the abrasions. The reason why this is concerning is because there is no background for him regarding fabrics. This is a different and new opinion that we have not prepared or obtained an expert for. We probably have very little time to get somebody to rebut this analysis regarding fabrics.
MR. BRENNAN: I don't see anything in his CV or his history that allows him to equate the number of holes in fabric with the number of abrasions on somebody's arm. It does not consider or account that there could be multiple wounds from one hole or there could be holes that don't create wounds. So whatever the implication is going to be by Dr. Rentschler, we're not very sure, but it obviously would require some type of expertise which I do not think that Dr. Rentschler has a foundation for. So those are 9 through 27 generally. And then specifically I can run through quickly the individual objections I have. Slide six tries to define the theory of the alleged incident. Doesn't say whose theory it is. It implies it's the government. It's an improper suggestion.
JUDGE CANNONE: Hold on. Okay. So which of one, two, and three on six? One is objectionable?
MR. BRENNAN: What's the core issue of the case? It's an ultimate issue for the jury. An expert reconstructionist or a biomechanical engineer shouldn't be defining the core issue of the case. And then three — "first event is alleged contact between the rear of the Lexus and Mr. O'Keefe's right arm" — again, that's offering an opinion that doesn't have facts and evidence. Not in a position to draw that opinion.
JUDGE CANNONE: And is two okay? Moving to the whole slide?
MR. BRENNAN: I — no, on number six, all three of them shouldn't be there, asking what the core issues in the case are. Dr. Rentschler — no expert should be defining what the core issues in the case are. They should talk about their training, experience, any testing, observations, evaluation, and then give their opinions — not core issues in the case. All right. Slide nine outlines perhaps his process. The first step of the analysis: to determine if the arm injuries are consistent with the physical evidence, evaluate the abrasion, to compare the evidence. I suppose this is what he's done. This is one of the less offensive ones, although unnecessary. It doesn't provide an opinion. I could live with that.
JUDGE CANNONE: The next one — you could live with what? Number nine?
MR. BRENNAN: Okay. Number 23. Again, this gets into that new core opinion about trying to identify or compare the abrasions to the different wounds. I think the part that's objectionable is the words "measurements question mark." Not sure if it's implying failure of somebody else — seems to be an opinion, and I'm not sure of the context of it. 24 — the expert is trying to define what Dr. Welcher had done. It may be that he's saying he conducted his testing based on the position of Dr. Welcher's arm. I think that would be an appropriate comment, but it's not clear what they're saying. The pain transfer test number two is the only test noted with respect to the arm.
JUDGE CANNONE: So without the text, are you objecting to this slide?
MR. BRENNAN: No. Okay. 31 posits questions regarding ultimate opinions. I think it's inappropriate. And then 32 — I think it's improper because it ultimately endorses or vouches for the witness's credibility. I think he certainly can give an opinion that the evidence is inconsistent with the injuries to Mr. O'Keefe's arm, but I don't think it should be on the slide bolstering his opinion. 33 — again, it's posturing the weight of the evidence, and it's assigning the government to a particular study — one study. It's really a commentary on the government's case. It goes like this: number one, Dr. Welcher only did A, and second part, A is insufficient. So that's really what this is saying. It's commentary. It's hearsay. It's inappropriate. 34 — I think if one said that that's what he did — Dr.
MR. BRENNAN: Rentschler took a step to determine the kinematics of Mr. O'Keefe's arm during the alleged incident and asked how would this arm move — I think that would be appropriate, but he shouldn't be giving an opinion on what steps should have been taken by Dr. Welcher. Number two on slide 34 and number three — I don't have a problem with. The next one is 46. Again, this is bolstering the expert's opinion by putting it in writing on a slide. I think some of these opinions are appropriate for Dr. Rentschler to share with the jury, but his final ultimate opinion shouldn't be endorsed on a slide. 47 — again, this is self-endorsement of the success of his tests and giving his opinion about his success. Number one and two, I think, are inappropriate. Number three has really no context standing alone.
MR. BRENNAN: And number four — if he notes that's his next step, I wouldn't have a problem with number four. Okay. Slide 54 — again, number one gets into his opinions. Number two, he gives an opinion about a different expert, a medical opinion. And number three — it's again self-endorsement on his own opinions. So all these are opinions either bolstering himself or somebody else's work. I don't think it should be in a slide. 55 — I think it's accurate. I think it's proper testimony. I don't think it's proper for a slide. Same with 56. I don't know that he has the basis for number one. Number two, I don't have a problem with on slide 56. And number three — again, it's bolstering his opinion. So I think one and three are improper too. Slide 58 — I don't know what the basis for number one is.
MR. BRENNAN: I suppose we'll have to see. If these are Dr. Rentschler's views, I don't know how they're relevant to the Commonwealth case, but certainly I think he has the experience to make these conclusions, but it shouldn't be in a PowerPoint. He shouldn't be commenting on the reports of another expert in a PowerPoint. Number three and number four is ultimately an opinion that he's self-endorsing. 66. Again, it is an opinion. I don't think it's an admissible opinion and it shouldn't be in the slide. He's trying to draw a conclusion on what the jury should conclude based on the Commonwealth's evidence. He's not in a position to do that. 67, parts of this are objectionable. I think that he certainly could testify. He hasn't seen any simulation by Dr.
MR. BRENNAN: Welcher, but posturing it in a manner that suggests there should be doubt in some way is inappropriate. 68. I don't think Dr. Welcher's report was introduced and putting in a fraction of a report — I can't appreciate the significance of it. It's hearsay. Perhaps there's a reason he'll be able to point to the report or talk about the report. I understand that. But putting in a random page from a report is hearsay — should not be admissible. I don't know if there's going to be a conversation about trying to introduce the entire report, but one page will take it out of context. 72. I think the expert probably can — I think the expert has a basis for the opinion. I don't think the ultimate opinion should be in a PowerPoint because it's self-endorsing.
MR. BRENNAN: 74, again it's a conclusory opinion bolstering. Some of these can be said but shouldn't be in PowerPoints. Same thing with 75 and 76 — their ultimate conclusions. And so I'm not in agreement with all of the conclusions that the expert may try to introduce, but testifying about an ultimate opinion and putting it on a board to self-endorse shouldn't be permitted. And those are my objections.
JUDGE CANNONE: Okay, Miss Little.
MS. LITTLE: Thank you. Um, first of all — there be able to reference the PowerPoint?
JUDGE CANNONE: Yeah, that's fine.
MS. LITTLE: Thank you. I appreciate that. Um, first of all, there were no additions, just to be clear. The only changes that we made were directly in response to the objections — deleting their concerns as well as shortening some of the opinions. So those were the only changes. I just wanted to make clear there are no additional opinions. Um, with regards to slides — through — that was not one of the issues that was identified. They objected to slide — I do agree it's a new objection. Um, I just don't know, when there's an objection raised, how a biomechanical medical engineer is qualified to testify to tears and clothing.
MS. LITTLE: So this is directly about his testimony — it's going to be based on his knowledge of applied biomechanics, certainly — and I understand that, but some of the specifics that he says — I'm just saying I had a concern. So I understand it's new. I think we'll be able to satisfy the concern.
JUDGE CANNONE: All right, so we can come back to the fabric argument, or whether it's beyond his scope of expertise. But, Miss Little, if I can just ask you — and I can hear you later — I assume everybody wants lunch and we're coming back in at about twenty of — quarter of at the latest. Um, can you just explain to me why these slides — if Dr. Rentschler is permitted to express these opinions — why we also need them on slides? That's the problem I have.
MS. LITTLE: I think that's a great question. So I looked at that yesterday. So, which — um, which one? Because I did look last night at that and did not see it.
JUDGE CANNONE: Hold on one second. Is it a conclusion page? Hold on. Hold on. "...in this striking the rear posterior aspect of his head on ground." Okay. So if he's — so that is different than what I said he could be asked on his ultimate question, right? But it still came in.
MS. LITTLE: Was there — I'm sorry.
JUDGE CANNONE: All right. Because what I did note is that I was very careful to say exactly what the ultimate question could be from Mr. Brennan. In fact, there were objections. I sustained them twice. So I wrote out exactly what could be said, and Mr. Brennan asked a variation of the first one and there was no objection. So I didn't remember that this came in. All right. So I will take a look at that. What I would like to do, in the interest of time — so maybe we can talk about that in the conclusion page — but where he outlines everything else, there are so many pages with text that I may not have a problem with testimony regarding this. But why do we need testimony and text so much here?
MS. LITTLE: This is to assist the jury.
JUDGE CANNONE: It's what?
MS. LITTLE: To assist the jury.
JUDGE CANNONE: There's a significant amount of information —
JUDGE CANNONE: Okay.
MS. LITTLE: But I think having the PowerPoint will allow us to make this go so smoothly and quickly.
JUDGE CANNONE: All right. So I will look at these. Um, what I'll try and do is — if there are any changes in the first 15, I'll try and get those done during lunch, and then we can have this argument afterwards.
MS. LITTLE: I appreciate that.
JUDGE CANNONE: All right. All right. We'll see everybody no later than quarter of. Session may be seated. Right. The jury is coming over. I just wanted to tell you what I was able to do during the lunch break. So, Mr. Brennan, you argued for four points of admission regarding this witness. I'll allow in one and two. I've had a chance to look at four. I think I already told you I would not allow in three because I've already considered it. I've now looked at the fourth one, the case. Um, I'm not going to let you get into that during cross-examination. If the door is open and you think you can get into it after redirect, please come to sidebar. Thank you. And also, I had a chance to look at the actual exhibit regarding what came into evidence from Dr.
JUDGE CANNONE: Welcher — and Miss Little, contrary to what you said and what Mr. Alessi was nodding to, page 136 did not come into evidence. It's a blank page. So that PowerPoint did not come in. I had a chance to look at Dr. Rentschler's PowerPoint and — at least for now, maybe you can persuade me otherwise — any text that has hearsay on it that you say will help assist the jury: what I want to say is I think we have to give the jury some credit here. Okay? They have been listening to this case intently for weeks. I don't find that anything that you've recommended here comes in to assist the jury is necessary to assist the jury. So, before Dr. Rentschler testifies, those slides that were objected to that have text are out. No, not right now. You can look at it.
JUDGE CANNONE: Um, you can look at it while we're bringing the jury in. Mr. Alessi, please.
MR. ALESSI: 136, 137, and 138 are all blacked out.
JUDGE CANNONE: All right, the juror is here. The juror is on their way, right? Okay.
COURT OFFICER: All rise. Please be seated.
JUDGE CANNONE: All right, Mr. Brennan. Oh — never mind. I'm sorry. Thank you.
MR. BRENNAN: Good afternoon, Dr.
DR. LAPOSATA: Good afternoon.
MR. BRENNAN: Are you on the microphone? You are. You were asked on direct examination about your qualifications. You were a medical examiner for the state of Rhode Island. Is that fair to say?
DR. LAPOSATA: Yes. I was the chief medical examiner for — twenty years. Twelve years. I'm sorry. Twelve years.
MR. BRENNAN: When's the last time you worked as a medical examiner?
DR. LAPOSATA: Um, in 2005.
MR. BRENNAN: When's the last time that you conducted an autopsy?
DR. LAPOSATA: I've done probably a handful of autopsies — private autopsies — in my consulting practice. Since 2005,
MR. BRENNAN: Correct? When do you think the last time you did one is?
DR. LAPOSATA: Maybe four years ago.
MR. BRENNAN: Four or five years ago?
DR. LAPOSATA: Four or five years ago. Yes.
MR. BRENNAN: Okay. Since you left the medical examiner's office, have you had any specialized training in brain injuries?
DR. LAPOSATA: It's all part of keeping up with the medical literature and knowing the forensic pathology literature, reading medical literature. So it's a continuing endeavor to keep yourself educated with medical updates.
MR. BRENNAN: Since you left the medical examiner's office, have you had any specialized training in brain injuries?
DR. LAPOSATA: I've not gone to a course on brain injuries.
MR. BRENNAN: Since you left the medical examiner's office, have you taught any students on brain injuries?
DR. LAPOSATA: Yes.
MR. BRENNAN: Have you given any classes or seminars on brain injuries?
DR. LAPOSATA: Yes, I have. In coup contrecoup.
MR. BRENNAN: How many times have you experienced that as a medical examiner — that condition?
DR. LAPOSATA: I myself haven't experienced it, which was good, but in cases — hundreds of cases — it's a common injury.
MR. BRENNAN: You said you did differential diagnosis — that is, to exhaust any potential bias you have. Correct?
DR. LAPOSATA: Well, a differential diagnosis is to think how many ways can you get this finding, and it does help prevent bias.
MR. BRENNAN: Did you say on direct examination part of the benefit of differential diagnosis is to make sure that you don't have a bias?
DR. LAPOSATA: Yes. Yes.
MR. BRENNAN: In order to eliminate bias, you're supposed to look at all reasonable alternatives. Correct?
DR. LAPOSATA: Yes. That's part of it. Making a differential diagnosis.
MR. BRENNAN: So you don't just look at a person's body, come to a conclusion, and ignore other evidence. That would kind of defeat the purpose of differential diagnosis, wouldn't it?
DR. LAPOSATA: Well, you always have to look at all the evidence.
MR. BRENNAN: And so if you didn't look at all the evidence and you disregarded some of the evidence because you had already made up your mind, that really wouldn't be the proper study of differential diagnosis, would it?
DR. LAPOSATA: Right. I don't do that. I'm sorry, ma'am. I don't do that. I always look at all the evidence.
MR. BRENNAN: And would you look at all the evidence even if it was contrary to whatever opinion you want to give in court?
DR. LAPOSATA: Well, the evidence allows me to come to an opinion. So it's not like I decide on some opinion I want to give and then look for the evidence. The evidence is going to tell me what happened to the body.
MR. BRENNAN: So you would never say, "I don't need to look at that evidence," if it's presented to you. You'd look at it and study it and consider it in differential diagnosis.
DR. LAPOSATA: Sure. It may or may not apply, but I'd look at it.
MR. BRENNAN: Because if you did that and said, "Well, I don't need to look at this," and it was relevant evidence, that would defeat the whole idea of differential diagnosis. Correct?
DR. LAPOSATA: Well, you always want to look at all the evidence that's going to help you decide what happened to the body.
MR. BRENNAN: If you were to ignore relevant evidence because you already made your mind up, that could create some type of bias, even if you're not recognizing it. Correct?
DR. LAPOSATA: Well, I don't make my mind up. I make it up on all the evidence I have. Then if other evidence comes up later, I have to re-evaluate everything and consider that new evidence.
MR. BRENNAN: When you were talking about car collisions — I don't want to belabor the point — but you didn't major in physics, did you?
DR. LAPOSATA: In what?
MR. BRENNAN: You didn't major in physics, did you?
DR. LAPOSATA: No, I took physics, but no, I didn't major in it.
MR. BRENNAN: And the last time you took physics was probably what?
DR. LAPOSATA: Undergrad.
MR. BRENNAN: Correct. Thank goodness. You have no study in biomechanical engineering.
DR. LAPOSATA: No, I'm not a biomechanical engineer.
MR. BRENNAN: Understood. You never taught courses in accident reconstruction, have you?
DR. LAPOSATA: Only in terms of looking at the injuries on the body and showing how they could or could not have occurred from impact with a motor vehicle.
MR. BRENNAN: Have you taught classes in accident reconstruction?
DR. LAPOSATA: Only as far as it would affect the findings on the body.
MR. BRENNAN: Do you know what I mean when I say "accident reconstruction"?
DR. LAPOSATA: Well, accident reconstruction — and I'm telling you that my expertise in accident reconstruction is restricted to looking at the body and then understanding how impacts may or may not have occurred to the body. I don't take a car and look at mileage and such like that.
MR. BRENNAN: You don't do any studies of the actual vehicles. You're focused on the body.
DR. LAPOSATA: I'm focused on the body, but I also look at the vehicles to look at the points of impact that might be possible.
MR. BRENNAN: You do not have any advanced study in biomechanics, do you?
DR. LAPOSATA: No.
MR. BRENNAN: Okay. Now, you had mentioned that when you were in the medical examiner's office, you had a number of higher-profile cases.
DR. LAPOSATA: Well, every case is important because somebody's dead.
MR. BRENNAN: You pointed out some pretty specific ones on direct examination. Were those more important — the ones that were highlighted — or is that the same as every other case?
DR. LAPOSATA: I don't know what you're talking about.
MR. BRENNAN: Well, you had mentioned the EgyptAir crash, the Station nightclub fire. Those were highlighted or pronounced on direct examination. Are they equally important as every other case?
DR. LAPOSATA: Oh, absolutely. Every person is my patient.
MR. BRENNAN: You talked about some of your commendations. The Station nightclub fire — you received quite a bit of criticism on that, didn't you?
DR. LAPOSATA: Well, there was a flurry of negative press without any basis.
MR. BRENNAN: You had mentioned that a doctor — a medical examiner — should have gone out to the scene to look at the area where John O'Keefe was found to make observations. Did you suggest that in any way on direct examination?
DR. LAPOSATA: You have to know what the scene looks like, and usually that is documented in police reports and in police photographs, who document the scene.
MR. BRENNAN: The Station nightclub fire — that had numerous victims, didn't it?
DR. LAPOSATA: Yes. A hundred.
MR. BRENNAN: And you received criticism because you were repeatedly requested by emergency responders and police officials to come to the scene, and you received —
DR. LAPOSATA: That's incorrect. First of all, nobody called me to come to the scene, and medical examiners are not first responders. As soon as I got a call that there was that fire in the nightclub, my investigator went right to the scene and I was in constant communication with him throughout the early morning hours of that horrible accident. And I went into the medical examiner's office because I had to start getting ready to run our office 24 hours a day — to not only take care of the poor individuals who expired in the nightclub fire, but also the regular work of the medical examiners. So there was no need for me to go to the scene because I had my investigator there, and my job would be at the office to get things all set up to handle the influx of deceased.
MR. BRENNAN: Did you receive criticism that over 17 hours there was an effort to have you come to the scene, but you refused?
JUDGE CANNONE: I'm going to allow it in a different —
DR. LAPOSATA: Yeah, that's incorrect. Oh, I'm sorry.
MR. BRENNAN: Oh, no. I didn't mean to scare you.
JUDGE CANNONE: Okay, hold on for a second. Okay. Asking differently, Mr. Brennan, please. I'm going to allow it based on the ending. The ending was scary.
MR. BRENNAN: Did you receive criticism that for over 17 hours officials were asking you to come to the scene and you refused?
DR. LAPOSATA: It was untrue. It was printed in the newspaper. We looked up all the phone records and provided it to the newspapers and showed that nobody called me to go. I would have gone if I needed to. I had my investigator there. It was erroneous.
MR. BRENNAN: Was there other criticism in 2005 before you left the office?
DR. LAPOSATA: No, there was a flurry of stuff in the papers. There were union issues, new director of health, new governor. So, yeah, there was a little flurry of stuff which was not substantive.
MR. BRENNAN: So you inevitably did resign in 2005.
DR. LAPOSATA: Yes, because my budget was going to be cut and I knew that if I had to get rid of a medical examiner, we couldn't do a good job for the state. And I'd done it. I'd been chief for 12 years. I'd been on call 24 hours a day for 12 years, which was an honor, really. But if I couldn't do a good job — if we cut the budget, I had to get rid of a medical examiner — I couldn't serve the people of Rhode Island well. So I resigned.
MR. BRENNAN: Did you resign shortly after the audits and criticism?
DR. LAPOSATA: No.
MR. BRENNAN: Same year?
DR. LAPOSATA: I don't even remember.
MR. BRENNAN: Okay. After you resigned, you opened your own company?
DR. LAPOSATA: Yes. I started an independent consulting practice.
MR. BRENNAN: How much of your business is consulting?
DR. LAPOSATA: It's a consulting practice. Yep.
MR. BRENNAN: How much of your income?
DR. LAPOSATA: 100%. It's consulting.
MR. BRENNAN: Do you consult in both criminal and civil cases?
DR. LAPOSATA: Yes, I do.
MR. BRENNAN: What percentage of cases are criminal cases?
DR. LAPOSATA: It's maybe half and half. Half criminal, half civil. I don't keep track of it in that way, but that would be a guess. I'm sorry. I don't keep track of numbers of civil or criminal cases that I'm consulted in. If I had to give an estimate, it would be half and half. I've worked on over a thousand cases in my private company.
MR. BRENNAN: And fair to say you get compensated for your time.
DR. LAPOSATA: Yes, I get paid for my time.
MR. BRENNAN: Dr. Laposata, you had mentioned that there were some scratches that you had taken a look at on Mr. O'Keefe's body. If we could have exhibit 165, please. Now, would it be fair to say, Dr. Laposata, you do not know the genesis of that cut on Mr. O'Keefe's right eye?
DR. LAPOSATA: I do not know what caused it. I can tell you what didn't cause it, but I don't know what did cause it.
MR. BRENNAN: You said that was from blunt force.
DR. LAPOSATA: It's from application of blunt force to that little area that broke the skin.
MR. BRENNAN: When you were asked a question about whether that was consistent with a punch, you opined that it was consistent with a punch.
DR. LAPOSATA: Yes. It could be consistent with a punch.
MR. BRENNAN: You weren't saying it was consistent with a punch to a reasonable degree of medical certainty. Were you?
DR. LAPOSATA: That would be within my differential diagnosis. It could be consistent with all other types of blunt impact — many other types of blunt impact, couldn't it? That's correct.
MR. BRENNAN: Ground, perhaps?
DR. LAPOSATA: No. An object — if it was an object that could get into that area under the eyebrow. Yes.
MR. BRENNAN: You mentioned the spoiler on the back of Ms. Read's Lexus. Do you remember that?
DR. LAPOSATA: I remember that.
MR. BRENNAN: Do you know how tall John O'Keefe was?
DR. LAPOSATA: Um, he's around — 5'11, I think. 72 — something around in there.
MR. BRENNAN: No, he's closer to 6'1. Does that make sense?
DR. LAPOSATA: Sure.
MR. BRENNAN: Okay. And that spoiler on the Lexus, do you know how high off the ground that is?
DR. LAPOSATA: No.
MR. BRENNAN: Did you ever try to measure it or ask for photos or any information about that?
DR. LAPOSATA: No, I looked at the photos.
MR. BRENNAN: Did you ever ask for any measurements or try to take any measurements?
DR. LAPOSATA: No.
MR. BRENNAN: Could I have exhibit 166, please? Did you see this cut on Mr. O'Keefe's nose?
DR. LAPOSATA: Um, that — that's a scratch. It's not made by a sharp instrument. It's not a cut. It's a scratch.
MR. BRENNAN: Is there any scratches on the left side? Uh, do we have a photo of the left side, please? And that — you say that's a scratch, not a cut.
DR. LAPOSATA: Correct. Because a cut means it's made by a sharp thing like a knife, and a scratch is made by something that's kind of rounded, that has a little point on it but it's not sharp.
MR. BRENNAN: Okay. Do you have any information or basis to say where that scratch came from?
DR. LAPOSATA: No.
MR. BRENNAN: Did you do any differential diagnosis on that scratch?
DR. LAPOSATA: I don't know what caused that. There could be a number of things that caused it. There was no scratch on the right side of Mr. O'Keefe's nose.
MR. BRENNAN: I don't see one. No. Could you zoom in, Miss Gilman? So the only scratch is on the left side.
DR. LAPOSATA: There's — looks to be — well, that's not a good photograph because there's some blood obscuring the skin.
MR. BRENNAN: Yes.
DR. LAPOSATA: Um, my memory — if my memory serves me, there is a scratch on the left side of the nose and maybe a small scrape on the tip of the nose.
MR. BRENNAN: And we can go back to the left side. And you said that could not have been caused by a sharp object.
DR. LAPOSATA: Correct. It's not an incised wound. Incised wound means a bladed sharp cut. This is a scratch, not made by a blade.
MR. BRENNAN: Were you aware the defendant made a statement that she pulled a piece of glass from the defendant's nose?
DR. LAPOSATA: No.
MR. BRENNAN: And you would say that that wound is inconsistent with being caused by glass or a sharp object?
DR. LAPOSATA: It would not be caused by a blade. It could be caused by a piece of glass that was thick.
MR. BRENNAN: I thought before I offered you that statement, you had said that it could not have been caused by glass. Do you now have a different opinion?
DR. LAPOSATA: I don't remember saying it couldn't have been caused by glass.
MR. BRENNAN: Didn't you say it couldn't have been caused by glass or a sharp object?
DR. LAPOSATA: A sharp object — like — a sharp object — it's not an incised wound made by a blade. It could be caused by something sharper that's thicker but does not have a thin blade. So it could be caused by a thicker piece of glass.
MR. BRENNAN: If somebody is deceased, does any blood pressure from their heart still move in their body?
DR. LAPOSATA: No, they're dead.
MR. BRENNAN: If somebody removed a sharp object like glass from somebody's face, would they spurt blood if they've died?
DR. LAPOSATA: If you're dead, there's no blood pressure. So if you're dead and you remove something, there may be some superficial blood, but it's not going to have blood flow because your heart's not pumping blood out of the cut ends of the blood vessels. So it's not going to spurt.
MR. BRENNAN: If you pull something out of a person's skin if they've passed, you wouldn't get a spurt of blood from arterial pressure. I just want to ask you a very few questions about hypothermia.
DR. LAPOSATA: Sure.
MR. BRENNAN: You mentioned that Mr. O'Keefe's body temperature at the hospital was 80°.
DR. LAPOSATA: Yes.
MR. BRENNAN: And there's different ways to take somebody's body temperature, isn't there?
DR. LAPOSATA: Yeah, that was a rectal temperature. So that's a good representation of the body temperature.
MR. BRENNAN: Is the variance between a common practice of taking temperature by somebody's mouth and rectal — is it about a three or four degrees difference, or do you have a different experience?
DR. LAPOSATA: Um, it can be different. Um, a rectal temperature gives you a better internal body temperature. The oral temperature, if you're breathing in, or if you just had something cold in your mouth, may not register a proper temperature. So the rectal temperature is the preferred temperature for a medical diagnosis.
MR. BRENNAN: 98.6 is an important temperature, isn't it?
DR. LAPOSATA: Yeah, it's our usual normal body temperature.
MR. BRENNAN: And is there a standard? Is 95 degrees considered hypothermic?
DR. LAPOSATA: Um, clinically you would start to worry that the person might be experiencing bad effects of hypothermia at 95 degrees. At 95, you start to worry about it. And could some of the things that happen — is labored breathing —
MR. BRENNAN: Labored breathing? What about labored breathing? If someone is hypothermic, if they're 95 degrees, does it affect their breathing patterns?
DR. LAPOSATA: Not especially.
MR. BRENNAN: Okay. Does it affect the way their respiratory system works?
DR. LAPOSATA: No.
MR. BRENNAN: Does it have any effects on the human body if you're hypothermic at 95 degrees?
DR. LAPOSATA: Um, no. You're still okay.
MR. BRENNAN: If that temperature continues to decline, it starts to become dangerous, doesn't it?
DR. LAPOSATA: It can.
MR. BRENNAN: Mr. O'Keefe was evaluated at the hospital. His body temperature from a rectal reading was 80 degrees at about 6:37?
DR. LAPOSATA: Um, correct.
MR. BRENNAN: Did you know that before he got to the hospital, first responders had him in an ambulance?
DR. LAPOSATA: Of course.
MR. BRENNAN: Did you know they turned the heat up and put blankets on him and tried to provide warmth to him before he got to the hospital?
DR. LAPOSATA: Yes, that would be standard practice.
MR. BRENNAN: And that standard practice would usually add temperature to the person, wouldn't it?
DR. LAPOSATA: Well, it might. So it's possible it could, but it might not. It usually doesn't add that much.
MR. BRENNAN: I see. And so, inevitably, at 6:37, Mr. O'Keefe's body was 80°.
DR. LAPOSATA: Yes.
MR. BRENNAN: When he got to the hospital, his rectal temperature was 80°. So that is a drop from the standard, or what's expected, of 98.6 degrees. That's a drop of at least 18.6°.
DR. LAPOSATA: Yes.
MR. BRENNAN: You mentioned that Mr. O'Keefe, after suffering his head injury, would not have moved other than twitching.
DR. LAPOSATA: Correct. No purposeful movement.
MR. BRENNAN: Were you aware that he had an iPhone with healthcare data on it?
DR. LAPOSATA: No.
MR. BRENNAN: If there's no movement — assume for a second there's no movement of Mr. O'Keefe after 12:32:16. And he's found a little after 6 a.m. in the morning. That's about 5 hours or 5 and a half hours.
DR. LAPOSATA: Correct.
MR. BRENNAN: And if somebody is in the cold for 5 and a half hours, that's consistent with dropping from 98.6° to 80 degrees in body temperature, isn't it?
DR. LAPOSATA: If the person is dead. Yes.
MR. BRENNAN: If a person is outside in the cold and still alive, will their body temperature decrease?
DR. LAPOSATA: People can die of hypothermia, but that's not the case here.
MR. BRENNAN: Not the ultimate death, but if somebody's outside and they're alive and they're lying in the snow and it's below freezing, will they lose body temperature?
DR. LAPOSATA: They will, especially if they're not bundled up well.
MR. BRENNAN: And body temperature can drop from 2 and a half to four degrees an hour in a dead body.
DR. LAPOSATA: Okay. In a living person, it can drop one and a half degrees — no, no, no, no. A dead body at room temperature will usually lose body temperature at about 1 and a half degrees an hour. If a dead body is in a cold environment covered with snow — in avalanche environments, a dead body can cool at 4° per hour.
MR. BRENNAN: And so a person who is in cold conditions, starting to be covered by snow, less than freezing — they can lose body temperature when they're living, can't they?
DR. LAPOSATA: If — sure, you can. People die of hypothermia, but that's not the case here.
MR. BRENNAN: Well, someone could be alive, lose body temperature, and not die. That can happen, can't it?
DR. LAPOSATA: Yeah.
MR. BRENNAN: So if someone is in the cold — let's assume they're not dead for a second. They're in the snow, below freezing, not moving. Can that person lose body temperature if they're still alive?
DR. LAPOSATA: Sure. They just lie there. They can become hypothermic and die.
MR. BRENNAN: Even before they become hypothermic, can they lose body temperature?
DR. LAPOSATA: Well, losing body temperature makes you hypothermic. "Thermic" is temperature and "hypo" means below. So your temperature goes down and you're hypothermic because it's going down. And people can survive from being hypothermic if they get the right care.
MR. BRENNAN: Sure. And so in that 5 and a half hours, it is consistent with a person being outside in the cold, starting at 98.6 and ending at 80. That's consistent with being in the cold for 5 and a half hours, isn't it?
DR. LAPOSATA: For a dead body. Yes. That's how a dead body would cool in a snow-covered cold environment.
MR. BRENNAN: And it could also be consistent with somebody who is alive for some time and then dies.
DR. LAPOSATA: I don't understand your question.
MR. BRENNAN: Somebody could be out in the cold under the snow, sub-freezing. They could be alive for some time. Their body temperature could drop, and then when they pass and die, their body temperature could continue to drop, probably at a more rapid pace. That still fits within 5 and a half hours, doesn't it, Dr. Laposata?
DR. LAPOSATA: No. Because if someone can drop 4 degrees of body temperature in an hour — a dead body.
MR. BRENNAN: Yes.
DR. LAPOSATA: It would only take about a little over 4 hours if it was at 4° to go from 98.6 to 80.
MR. BRENNAN: Yes. Correct.
DR. LAPOSATA: Yes. So he was exposed to that cold environment for four to five hours.
MR. BRENNAN: If somebody was alive for a couple of hours — it's a lower rate, say they lose 3 degrees — and then after that couple of hours, they lose body temperature at 4°, that would still be consistent with a drop from 98.6 to 80 degrees, wouldn't it?
DR. LAPOSATA: No. You were saying a dead body cools in a cold environment at maybe 3 to 4 degrees an hour. And that has nothing to do with a living body and how long they can stay at a body temperature.
MR. BRENNAN: Do you disagree that somebody could be alive, lose body temperature out in the cold, freezing temperature below 32? They could lose body temperature at a certain rate, then pass out — pass, die — and then continue to lose body temperature. Is that possible?
DR. LAPOSATA: Anything's possible. Just what's important is what happened in this case.
MR. BRENNAN: I'm asking for your medical opinion though, rather than to be an advocate.
JUDGE CANNONE: Sustained. I'll strike that.
MR. BRENNAN: As far as Dr. —
JUDGE CANNONE: Would you listen to the question, please?
DR. LAPOSATA: Of course.
MR. BRENNAN: Thank you, your honor. As far as your medical experience, could somebody be alive outside in the cold below 32 degrees, not moving, covered by snow, still alive, and lose body temperature?
DR. LAPOSATA: Sure.
MR. BRENNAN: And then could they — after an hour or two hours — could they then die and continue to lose more body temperature?
DR. LAPOSATA: Sure.
MR. BRENNAN: You mentioned your opinion about injury on Mr. O'Keefe, and at one point you said that his injury was inconsistent with a tail light, and you said because there was no damage from the bumper. Do you remember saying that?
DR. LAPOSATA: Um, I don't think I said it quite that way.
MR. BRENNAN: Okay. Do you remember how you said it?
DR. LAPOSATA: No.
MR. BRENNAN: Do you remember discussing or raising the issue of a bumper as part of your equation that the injury to Mr. O'Keefe was inconsistent with the injuries?
DR. LAPOSATA: Um, he has no injuries on him that are consistent with being hit by the back of the SUV. That includes the spoiler. That includes the bumper.
MR. BRENNAN: Okay. If we could play video E, please. I want to ask you, Dr. Laposata, have you seen this video before?
DR. LAPOSATA: No.
MR. BRENNAN: Okay. Thank you. You can take that down. Did you see anything in that video that would suggest any contact between that mannequin and the vehicle's bumper?
JUDGE CANNONE: I'm going to see you at sidebar on this for just a minute, please. All right. So, jurors, I am going to strike the last bit of questioning of this witness and the video as it goes to this witness. All right.
MR. BRENNAN: Dr. Laposata, after you received materials, did you ever ask for any additional materials?
DR. LAPOSATA: Um, let's see. I always make sure I have all the scene investigation, autopsy, medical records, police and witness — and witness statements. So I felt I had a pretty complete database. Um, I didn't get the X-rays until a couple weeks ago, so that was delayed. That was newer. Yes.
MR. BRENNAN: You said a medical examiner has to make a determination in 90 days. Is that the rule?
DR. LAPOSATA: The — when you work in a medical examiner's office, when you get a deceased in, our national standards want us to have the autopsy report completed and all the associated tests done within 90 days.
MR. BRENNAN: Can investigations — or the additional accumulation of evidence — happen after that 90 days?
DR. LAPOSATA: Oh, sure.
MR. BRENNAN: Okay. Thank you, Dr. Laposata.
JUDGE CANNONE: Yes, I'm sorry. It's okay, Dr. — Hold on. Jurors, when I strike something, that means disregard it. And what I've struck through this witness — the video that you just saw and some of the testimony — means that if it's in evidence, it's in evidence, but it is not part of your consideration with this witness. Okay. All right. Go ahead, Mr. Jackson.