Pleading
STATE OF MICHIGAN
FORTY-FOURTH JUDICIAL CIRCUIT COURT LIVINGSTON COUNTY
FAMILY DIVISION
In the Matter of,
NAOMI BURNS, a minor. File No. 14-14708-NA
/
JURY TRIAL - DAY SIX
BEFORE THE HONORABLE MIRIAM A. CAVANAUGH - TRIAL COURT JUDGE
Howell, Michigan – Monday, October 27, 2014
APPEARANCES:
For the People: MS. BETSY SEDORE (P63839)
Livingston County Prosecutor’s Office
210 South Highlander Way
Howell, Michigan 48843
(517) 540-7781
Layer guardian ad litem: MR. ALEXANDER K. GARTHOFF (P73400)
Attorney at Law
211 East Grand River Avenue Suite 105
Howell, Michigan 48843
(517)540-0606
For respondent mother: MR. DENNIS L. BREWER (P59528)
Attorney at Law
2000 Grand River Annex
Brighton, Michigan 48114
(810) 227-7878
For respondent father: MR. MICHAEL J. CRONKRIGHT (P52671)
Kronzek & Cronkright PLLC
420 South Waverly Road Suite 100
Lansing, Michigan 48917
(517) 886-1000
TRANSCRIBED BY: Leah L. Hanna, CER 6218
Certified Electronic Recorder
(517) 540-7818
TABLE OF CONTENTS
WITNESSES: PAGE
DR. KHALED TAWANSY
Direct examination by Mr. Cronkright 6
Voir Dire by Ms. Sedore 14
Direct examination (continued) by Mr. Cronkright 15
Cross-examination by Mr. Garthoff 99
Cross-examination by Ms. Sedore 107
Redirect examination by Mr. Cronkright 152
MARK WHEELER
Direct examination by Ms. Sedore 160
Cross-examination by Mr. Cronkright 196
Cross-examination by Mr. Brewer 225
Cross-examination by Mr. Garthoff 236
Redirect examination by Ms. Sedore 239
Recross-examination by Mr. Brewer 243
BRENDA BURNS
Direct examination by Ms. Sedore 250
EXHIBITS:
None
Howell, Michigan.
Monday, October 27, 2014 - 8:42 a.m.
VIDEO OPERATOR: Calling the Naomi Burns matter case number 14-14708-NA.
THE COURT: All right. Good morning. Appearances please.
MS. SEDORE: Betsy Geyer Sedore on behalf of the People with Derek Schultz from DHS.
MR. GARTHOFF: Alexander Garthoff LGAL for he minor child.
MR. CRONKRIGHT: Good morning your Honor Michael Cronkright on appearing with and on behalf of respondent father.
THE COURT: All right. Good morning.
MR. BREWER: Good morning. Dennis Brewer on behalf of and with Brenda Burns respondent mother.
THE COURT: All right. Good morning. Okay. So are we ready to bring the jury in?
MR. CRONKRIGHT: Well Judge I thought we’d probably want to get Dr. Tawansy’s presentation working before we brought them in is that--and we’re plugged in to the system but I don’t know what has to happen on your end.
VIDEO OPERATOR: Okay.
MS. SEDORE: And I have one other question just as far as the order goes. Since it is his witness what order do we cross-examine? In the same way around so I’d be last or? That’s fine with me I just wasn’t sure.
THE COURT: Right we can just continue in the same order any objection?
MR. BREWER: None.
THE COURT: Mr. Brewer? Mr. Garthoff?
MR. GARTHOFF: No objection.
MS. SEDORE: Great.
MR. CRONKRIGHT: Okay can you put that on presentation slideshow? There you go.
DR. TAWANSY: It’s not on slide show. Let me--I don’t know why I’m having a hard time switching it. Slide--
MR. CRONKRIGHT: Put it on slideshow and see what happens. Okay.
THE COURT: All right are you ready?
MR. CRONKRIGHT: I just want to make sure this working. I think we’re ready your Honor.
THE COURT: Okay. So I’m going to instruct the jury that we’re going due to scheduling--for scheduling purposes we’re taking witnesses out of order and the respondent father is going to be presenting a witness. Okay. Let’s bring them in.
DEPUTY KERR: All rise for the jury.
(At 8:44 a.m., jury enters courtroom)
THE COURT: All right. Good morning. Thank you. Please be seated. For the record the jury is now present. Welcome ladies and gentlemen of the jury. So at this point due to some scheduling--due to scheduling we’re going to take a witness out of order. Respondent father is going to be presenting a witness here this morning. Okay. So just so you know. And then we’ll be switching back over to the petitioner’s case. Okay? All right. So Mr. Cronkright do you want to all your witness at this time?
MR. CRONKRIGHT: I do. And thank you your Honor. Good morning. Good morning jury panel. I would call with the Court’s permission Dr. Khaled Tawansy to the stand.
THE COURT: Okay. All right sir if you want to come on up. Before you get seated if you could raise your right hand here and be sworn.
VIDEO OPERATOR: Do you solemnly swear or affirm the testimony you’re about to give in this matter pending before the Court will be the whole truth and nothing but the truth?
DR. TAWANSY: Yes I do.
THE COURT: Okay. Go ahead and be seated and comfortable. Pull yourself up to the microphone. And if you could state your full name for the record.
THE WITNESS: My name Khaled Tawansy. I’m a medical doctor.
THE COURT: All right. I’m going to need you to spell that.
THE WITNESS: First name is K-H-A-L-E-D. Last name is T-A-W-A-N-S-Y.
THE COURT: All right. Thank you. Mr. Cronkright.
MR. CRONKRIGHT: May I proceed your Honor?
THE COURT: Please.
KHALED TAWANSY
called as a witness at 8:46 a.m., testified as follows:
DIRECT EXAMINATION
BY MR. CRONKRIGHT:
Q Good morning Dr. Tawansy.
A Good morning.
Q Dr. Tawansy I want to start by reviewing um, some of your background and expertise so I’m going to start out by asking you questions principally about you. You just told us that you were a medical doctor. Where are you licensed to practice medicine?
A Uh I’m--I currently have an active license to practice in California.
Q Okay. Have you been licensed in other jurisdictions?
A Yes.
Q Okay. What other jurisdictions?
A Michigan, Tennessee, Massachusetts, and um, British Columbia, Canada.
Q All right. Um, (inaudible) currently a practicing physician?
A Yes I’m a practicing ophthalmologist in southern--
Q Okay.
A --California.
Q So where did you obtain your your medical degree from?
A I obtained my MD in 1991 from the University of Michigan Ann Arbor.
Q And what year was that Doctor?
A 1991.
Q Have you been practicing as a medical doctor continuously since then?
A Yes I have.
Q Okay. Now um, was was Michigan then your first medical license? How did that work?
A Uh, actually California was my first medical license because I did my internal medicine residency at the University of California. But then I returned to Michigan doing ophthalmology residency at Henry Ford Hospital is when I obtained my Michigan license.
Q Okay. So um, is ophthalmology then something you become board certified in?
A Yes. I was board certified in ophthalmology after having completed the required residency training. I was board certified in I believe 1998.
Q Okay. And do you have any other board certifications that we should know about?
A No.
Q Okay. And so since 1998 have you continuously practiced ophthalmology?
A Yes.
Q Does your practice as it exists today have any particular focus or emphasis within ophthalmology?
A Yes. Um, after completely ophthalmology residency I did fellowship training in vitreoretinal diseases, disease of the retina and vitreous. First as a general vitreoretinal surgeon and then more specifically in the subspecialty of pediatric vitreoretinal diseases. And did specific fellowships in that area. In Massachusetts the Eye and Ear Infirmary. And since then I’ve--my practice has been focused on pediatric retinal disorders. Disorders of the back of the eye including retinal detachments, trauma, retinal hemorrhaging, inflammatory disorders that affect children anywhere from premature children to young adulthood.
Q So do you hold yourself out as an expert in pediatric retinal disorders?
A Yes I was one of the first people in the county to do fellowship training in this area. And um, it is the focus of my practice. And I do get referrals from all over the world and certainly from all over the western United States for this, for disease of this nature. So I do focus in terms of my practice also teaching and research work is dedicated to this area.
Q So you mentioned a couple of times I think that you did a fellowship. Now do you actually hold a subspecialty related to pediatric work or some kind?
A Well I did fellowship training in a vitreoretinal diseases um, so that’s an additional 18 months of subspecialty training. There’s no specific board for that area, but it is--I’m recognized has having done the training and being focused in this area.
Q Now are you a pediatrician?
A No.
Q Okay. All right. So as I understand it you’ve had some additional training in pediatric retinal disorders but your certification is um, as an ophthalmologist?
A Yes. In the field of ophthalmology there’s no uh, subspecialty boards. So the only board certifications in the field of ophthalmology in general.
Q Have you been qualified as courts as an expert witness either in ophthalmology or in pediatric retinal disorders?
A Yes in both.
Q And could you tell the jury approximately how many times you’ve been qualified as an expert?
A Over 100 times.
Q Okay. Um, and is most of that work in California?
A Uh I would say maybe 40 to 50 percent of it has been in California.
Q Uh, do you have an awareness or are you able to tell us how many states you’ve been qualified--how many state courts you’ve been qualified as an expert witness in?
A I can give you a rough number. Probably about 20 states.
Q All right. Okay. Have you been previously qualified as an expert witness in Michigan?
A Um, yes a long time ago.
Q All right. All right. Um, let’s talk a little bit Doctor about your practice. Do you have a hospital practice right now?
A My ho--my practice is based both in clinics and out of hospitals. I have uh, privileges at approximately 25 hospitals in southern and central California where I do consultations, take call, do visits to the emergency room, to the pediatrics wards, to the intensive care units. I do screenings for (indecipherable) retinopathy prematurity in many of those hospitals. We also have several clinical, clinic locations which are private clinic settings. The main one being on Los Angeles, but throughout central and southern California. We have multiple clinics that we also see patients on an outpatient basis.
Q And when you say we what are you referring?
A Uh, myself, my collogues. I have junior partners in my practice. We have nurses and assistants and a team of individuals dedicated towards managing these patients.
Q So generically when you say we you’re referring to other people in your clinic?
A Yes.
Q Okay. Now for the clinic--clinical work that you do is that mostly focused on children or is that all ages?
A We don’t have a age cutoff in our practice but many of our patients are preemie and I would say about 80 percent of the practice involves children.
Q And what about the--you said you had privileges at five hospitals.
A Twenty-five.
Q Twenty-five?
A Twenty-five.
Q Okay. I missed the two. So you have privileges in 25 hospitals. So do you go to all 25 hospitals?
A Yes. Some more regularly than others. Some of them just consult me when they have a difficult case. Others I do routine care like taking call and screening in the ICU’s, Neonatal ICU, the Pediatric ICU. But yes it does keep me busy.
Q So um, in regards to your hospital practice where--amongst those 25 hospitals how much of your work is focused on children there?
A Probably 80 percent.
Q Okay. Now Doctor focusing on that portion of your hospital practice that’s dealing with children do you on occasion um, get called to consult on child abuse or suspected child abuse cases?
A It is something that I do regularly.
Q Okay. Would you have any way of quantifying for us--say if we looked at the last five years for example do you have any idea how many child abuse related evaluations you’ve done?
A I would say it averages two a month.
Q Okay. So roughly 24 per year?
A Approximately yes.
Q Okay. And um, if we go back to your work as a testifying expert um, the uh, question I have for you Doctor is how does that break down--how much work is that--how much of your work is testifying on behalf of the state or on behalf of the prosecution?
A Approximately 40 percent of cases--maybe 30 to 40 percent of the cases that I’ve done have been on behalf of the prosecution. And 60 to 70 percent uh, on behalf of defense cases.
Q Okay. Now in this case obviously you’re here um, because the defense team hired you is that right?
A That's correct.
Q And you’re getting paid for your services?
A I believe so.
Q Okay.
A Yes.
Q In any event are you expecting to get paid for your services?
A Uh usually I do. Not always.
Q Okay.
A But um, it varies from case to case.
Q So is it normal for you as a practicing physician to get paid for your services?
A Um in terms of my clinical practice or in terms of this testimony?
Q Both.
A In my clinical practice yes I do have a pro bono clinic that we run once a week. But we do you know in the majority of cases get paid. As far as my testimony work it’s been about half and half. About 50 percent of the time we get paid.
Q All right. Thank you.
MR. CRONKRIGHT: Your Honor at this time I would move to qualify--or I would ask the Court to qualify Dr. Tawansy as an expert witness in ophthalmology and specifically in pediatric retinal disorders.
THE COURT: Any objections?
MS. SEDORE: I don’t object to the ophthalmology. I’m not certain about the pediatric retinal disorders.
MR. CRONKRIGHT: I would submit the witness for voir dire if anybody desires.
THE COURT: Do you want to voir dire? Would you like the opportunity?
MS. SEDORE: I guess--
THE COURT: Or do you want to make argument?
MS. SEDORE: Yeah I mean basically my argument is that if there’s no board certification for that subspecialty I understand that it’s the focus of his practice, but as to that being an area of expertise I’m not sure that that qualifies as something he can testify to as an area of expertise.
MR. CRONKRIGHT: I think the requirements of MRE 702 are met. If he’s qualified based on his experience, his education, and in this case he’s qualified based on both his experience and his education. He’s done a fellowship in pediatric retinal disorders. The fact that they don’t have a board for that doesn’t change the fact that he’s clearly an expert. It’s a substantial part of his practice. Um, and um, he’s well qualified so I--so under MRE 702 I think we’ve met the threshold.
MS. SEDORE: I do have further couple of questions for voir dire.
THE COURT: All right go ahead.
VOIR DIRE
BY MS. SEDORE:
Q So Doctor you’ve been qualified in Michigan one time? When was that?
A Um, it was approximately 10 years ago.
Q Okay. And what were you qualified as an expert in?
A In ophthalmology and in--you know I don’t remember. I think it was in ophthalmology and retinal disorders. I don’t think it was a pediatric case at that time.
Q But you’re not sure beyond ophthalmology what you were qualified as a witness is that correct?
A I’m routinely qualified as a pediatric retina specialist. Have taken care of more pediatric retina cases than anyone else in the western United States. Um, I’m a founding member of the Society of Pediatric Retina Specialists. I’m about as qualified as one can possibly be in this area.
THE COURT: Any, any other objection? Mr. Garthoff do you have any--
MR. GARTHOFF: No.
THE COURT: --objection?
MR. GARTHOFF: Anything else Ms. Sedore?
MS. SEDORE: No.
THE COURT: All right well I’m going to overrule the objection. He’ll be qualified in the area of ophthalmology specifically pediatric retinal disorders. All right. Go ahead.
MR. CRONKRIGHT: Thank you your Honor.
DIRECT EXAMINATION (CONTINUED)
BY MR. CRONKRIGHT:
Q Now Dr. Tawansy I want to turn your attention some to the case of Naomi Burns. Do you recall if there was a time when somebody in my office contacted you and asked you if you’d be willing to review this case?
A Yes I do.
Q And um, were material provided to you for your review?
A Yes.
Q Did those materials include the RetCam images and the fluorescein angiogram images for Naomi Burns?
A Yes they did.
Q And did it also include a substantial body of medical records?
A Yes.
Q Did the medicine records that were provided to you include the records from Naomi Burns 3-18 and 3-24 admit to the University of Michigan?
A Yes they did.
Q And did it also include the emergency room records from 3-16-2014 and 3-17-2014 St. Joseph Hospital?
A Yes that’s correct.
Q And were there various other records as well provided to you?
A Yes.
Q And did you review all of the records that were provided to you?
A Yes I did.
Q Do you also recall whether you’ve had an opportunity to see the radiographic studies that were done in this case at the University of Michigan?
A Yes.
Q And did the studies that you reviewed--the studies that you reviewed did that include um, a couple of different MRI’s for the University of Michigan?
A Yes.
Q And did it also include um, ultrasound testing that was done?
A Yes.
Q Did it also include um, bone scans in other words full body surveys--
A Yes.
Q --that were done just using ordinary x-ray techniques?
A Yes.
Q And did you review all of that material as well?
A Yes I did.
Q I understand. Now in your practice um, would it be normal for you to look extensively through all of that type of information if you were called upon to make a child abuse evaluation say in a hospital setting?
A Um, if I am um, looking at a case to, to ascertain whether there was potential child abuse or shaking injury, I would normally review all of that material. I would seek it out and review it. Many of these cases are ones where I’m making the first diagnosis.
Q Now in regards to the MRI findings did you uh review the actual images, did you review the reports, or was it both?
A Well I reviewed all of the reports and I looked at images. I don’t hold myself out as an expert in, in brain imaging but I do look at those images to get more insight into the case.
Q All right. Now um, one other question before we move on. Have you had opportunity to review some expert reports in--that aware produced by other potential defense experts?
A Yes.
Q Okay. So having said that before you arrived at your conclusion did you take all of that information into consideration?
A Um I don’t think I reviewed--I don’t think I used reports from other defense experts in my conclusions or in my thought process. But I did look at them.
Q Okay. So is that something--is that consistent with your normal practice for example in a hospital practice that you would look at the medical records but not, not outside expert opinions?
A Yeah I try to be as objective as possible and not be influenced by other opinions. So I try to look at the factual material and come up with my own thoughts on the case.
Q Okay. Now did you ultimately arrive um, at an opinion or a set of opinions that you’re prepared to talk about today?
A Yes I did.
Q Okay. So um, I would like to ask you just a couple preliminary questions before I delve into what your opinions may or may not be. But if I use the word diagnostic in the context of examining a case such as the Naomi Burns case do you know what the word diagnostic means?
A Um, well it means certain--you’re describing certain features that point to a certain diagnosis.
Q What about the word Doctor pathognomonic? Do you know what that means?
A Yes. Pathognomonic implies that when one sees a clinical finding that is very specific for a certain diagnosis so that that finding is directly correlated with that diagnosis such that if that finding is present that diagnosis and only that diagnosis is present and no other diagnosis can have that particular finding.
Q Okay. So uh not to be crass but for example if there was a case where a person um, was decapitated would that be diagnostic probably for a cause of death? That--is it that kind of a thing where you can look at something and just say well that just means with absolute certainly that this equals that? Is that--
A That’s what that term implies. It’s a term that used to be used more often in the field of medicine than it is now because we’re discovery more and more that findings are not always pathognomonic. There’s frequently exceptions. And there’s frequently multiple different diagnoses that can present with that original finding. So that term is not used nearly as much as it was as it was 20 years ago when I first started practicing.
Q So and you’re talking about the term pathognomonic?
A Yes.
Q And in terms of how you use words--because I think this is going to be important later on in your testimony--does the term diagnostic mean the same thing to you as the pathognomonic or something different?
A No we usually talk about differential diagnosis so we have a set of findings and we come up with a list of possible diagnoses that could fit that particular finding. And we usually weigh them in terms of probability and we create a list with the highest pr--probably usually on the top of the list and the lowest on the bottom. So we used differential diagnosis to look at a set of features that we find. Um, it’s rare to say okay this is pathognomonic. That implies that there’s only one possible diagnosis and nothing else should be considered.
Q There’s been some testimony in this case and probably in some of the reports that you read that the combination of retinal hemorrhages or perhaps the retinal hemorrhages in--along with the MRI findings in this case the subdurals and so forth that those things in of themselves are diagnostic for child abuse. So in that context what would you take the word diagnostic to mean?
A Well the way you’re using it implies that that diagnosis is being made in exclusion of all other potential--
MS. SEDORE: Judge I would say--
THE WITNESS: --diagnoses.
MS. SEDORE: --that that calls for speculation as to what another doctor--the other doctor already testified to what diagnostic means. So there’s really no reason for him to comment on someone else’s testimony so I would object as to that.
MR. CRONKRIGHT: Well I think he’s providing as a definition your Honor--
MS. SEDORE: He’s already defined it. Asked and answered.
MR. CRONKRIGHT: So I was clarifying the definition. I don’t know if that’s objectionable.
MS. SEDORE: I object because he’s asking him to comment on another witness’s testimony and another witness’s phraseology. She testified, she--he asked all about the definitions with her. I don’t think that it matters what he think she should mean. That’s not the same thing.
MR. CRONKRIGHT: Actually--
THE COURT: I agree if that’s what you’re asking--
MR. CRONKRIGHT: That’s not what I asked.
THE COURT: --that’s not proper.
MR. CRONKRIGHT: What I asked was very specific--
THE COURT: If you want--are you asking him what his definition of diagnostic and how he applies--uses or applies diagnostic in his practice?
MR. CRONKRIGHT: I asked him--
THE COURT: Is that what you’re asking him about?
MR. CRONKRIGHT: --what--I asked him what it would mean to him in the context of the medicine records that he reviewed if he read a statement from somebody that the retinal hemorrhages and the subdural hematomas were diagnostic of abuse. That’s what I asked him. How he would interpret that.
THE COURT: You’re asking him if someone said that?
MR. CRONKRIGHT: If that was in the records what would that mean to him yes.
THE COURT: Yes I don’t think it’s appropriate for you--for him to comment on testimony of other witnesses. If he wants to give his opinion as to whether he thinks that those injuries are diagnostic I’ll allow that. But to ask him to interrupt another doctor’s testimony here let’s move on.
BY MR. CRONKRIGHT:
Q Doctor in case you need to use it I’m going to approach and hand you my knit little device where you can scroll through your presentation and also um, there’s a red dot laser pointer on there as well.
A Okay.
Q All right. I want to start with um, asking you to um, explain the anatomy of the eye but limit it to things that we need to talk about in the Naomi Burns’ case. Because I don’t want to spend the whole day on an anatomy lesson. So tell us--if you’d walk through--(inaudible) that’s up on the board is this is a slide that you intended to use in your testimony today?
A Yes.
Q All right. Um, and can you tell us what we need to know in order to understand your assessment of the Naomi Burns case by reference to this slide?
A Certainly. This is a cross-section of the human eye and it works a lot like a camera. There are lenses in the front of the eye and aperture that focus the light. The light travels through the jelly cavity which occupies the bulk of of the core of the eye and this is focused on the membrane analogist to the film of the camera which is the retina. The retina is a multilayered structure that senses light and the photoreceptor which are further posterior part of the retina and process that light information and send it through fibers into the optic nerve. And the optic nerve sends that information to the brain. The optic nerve is bathed by cerebral spinal fluid which is um, the same fluid that bathes the rest of the brain. The retina has an important cir--circulation that involves the retinal vasculature, the arteries and veins. It’s actually the most metabolically active tissue in the eye. It has a second circulation called the choroid which is drawn in blue ink which nourishes the outer part of the retina and there’s a pigment layer that separated the retina and the choroid called the retinal pigment epithelium which I believe is--would be here. These cells right here that interdigitate with the photoreceptors. Um, the central part of the retina here is called the posterior pole and the peripheral part of the retina is more towards the front. There’s an equator sort of in the middle of the retina. And anything interior of the equator is considered peripheral. Anything posterior of the equator is considered central.
Q All right. So the diagram on the right--and this is gonna be my pointer for a minute and not yours--this diagram is this like a breakout of the retina?
A Yeah this is a cross-section of the retina here. Showing the multiple retinal layers, the pigment epithelium, the photoreceptors, the different nuclear layers and plexiform layers, the nerve fiber layer which is uh, the closest to the front and then there’s the internal limiting membrane and then the vitreous gel would be in front here. This is important when you’re considering retinal hemorrhages because depending on the location of the hemorrhage it will give a different appearance. For example if, if a hemorrhage occurs in the most superficial part of the retina which is called the nerve fiber layer these nerve fibers are are oriented in this direction sending sending their cells into the optic nerve. Their orientated radially and so an hemorrhage in that area will often be called a flame shaped hemorrhage, a nerve fiber layer hemorrhage because it’s--the blood is orientated in the same direction as the fibers. Whereas if you have hemorrhage that’s further deep in the retina within these deeper cellular layers these, these are columns that are oriented in this direction and so when blood seeps between these cells it has more of a dot or blot appearance. So intraretinal hemorrhages will have this dot or blot appearance. You can also have hemorrhage in front of the retina between the retina and the vitreous gel and that will look more like a smear because it will be blood that’s sandwiched between two films so it would be--it would kind of look like ketchup on cellophane. Um, and then you can have hemorrhages that are deeper under the pigment epithelium which usually are more a (indecipherable) and are slower to clear because the metabolism is different in this area and they tend to be more darkly pigmented.
Q So um, we’ve used some terms already before you got to the courthouse today. And maybe--I want to know if you can demonstrate where we would be looking for uh, for some of these things. So for example if we were to say that there are um, preretinal hemorrhages where would--where on the document would we find that demonstrated?
A So preretinal hemorrhages would be um, in front of the surface layer of the retina. Usually trapped between the gel and the internal limiting membrane--excuse me let me go back. Uh, usually trapped between the gel and the internal limiting memory. Sometimes people will think of sub ileum hemorrhage as preretinal. The internal limiting memory and the ileum is this--the most superficial layer of the retinal. It’s basically a continuation of the cells where their feet sort of butt into this filmy cellular membrane. So those, those types of hemorrhage tend to be boat shaped. They tend to look like um, the best analogy I have is if you took--if you put some ketchup down and then put a piece of cellophane over it it would look kind of in that shape. It would have distinct borders. It would be larger.
Q So in terms of the eye for someone who doesn’t know a lot about the complexity of the eye. The outside of the eye--I mean I can stick my finger under the eyelid and touch the outside of my eye. Is that where--or is that the approximate location where a subretinal hemorrhage would be found--
A No.
Q --right at the service?
A Not at all.
Q It’s deeper inside?
A This--none of these hemorrhages that we’re talking about are visible on the outside. The outside of the eye is the sclera and cornea. And there’s a mucus membrane called the conjunctiva that surrounds that. And you can get you know hemorrhages that look like ketchup on the outside of the eye. Sub conjunctiva hemorrhage. That is nothing to do with what we’re talking about. We’re talking about hemorrhages that only can be seen through a dialed pupil so with an ophthalmoscope where you’re looking at the retina or the back of the eye. The tissue that gives the red reflex to the eye and we’re looking the types of hemorrhages that occur in the back of the eye. In the setting of different diseases processes that include inflammation and trauma.
Q Okay. So if we’re talking about subretinal he--well let’s go back got the--where’s a preretinal hemorrhage going to be found?
A Preretinal hemorrhage is going to be found most superficial just between the gel and the retina. And it’s going to be overlying the retinal blood vessels. So typically a preretinal hemorrhage will cover the blood vessels so you cannot see any of the retinal vasculature through it. Okay. But it’s not; it’s not in the gel. If the blood was in the gel it would be give a diffusive capacity and you would not be able to see the retina so you can still see the retina around the preretinal hemorrhage, but it’s, it’s somewhere sitting on the retina trapped between the gel and the surface of the retina.
Q So we have RetCam photographs in this case is that right?
A That's correct.
Q So describe if you can by reference to this photograph where you put the camera in order to take pictures such as we have in this case?
A So the camera--it’s actually a contact camera so the camera sits on the cornea here and the pupil is dilated. And the camera acts like a Galilean telescope. It has--it um, has an inverted image of the retina in the back of the eye. So the lens is sitting right on the cornea here and the light is traveling to the back of the eye and being reflected and giving the image of the retina. And so we, when we look at it with that picture this is a cross-section picture. When we look at it with a retina--with the RetCam we’re looking from the pupil in and so we’re going to see a flat circle with the optic nerve in the middle of the circle and the retinal blood vessels radiating outward. I have a picture of that on the next--
Q Okay.
A --slide.
Q We’ll get to that in just a second. So from the position of the RetCam looking um, through a dilated pupil um--well actually I think I can ask a different question than that and get what I’m looking for. Where are on this diagram would the periphery be? Because we are talking about the concept in this case that perhaps retinal hemorrhages may extend to the ora--
A Right so different diseases processes will cause hemorrhages in different locations. Both in terms of the anterior posterior location and also the topographic uh location on the retina. So the, the central part of the retina is the macular. And the center part of where the blood vessels exit is the optic nerve. And the periphery is the ora serrata. The ora serrata is where the retina ends at the front part of the eye. And um, it’s just behind the ciliary body here. So this is the ora serrata and pretty much anything between the equator of the eye--the equator is if you drew a circle around--along the largest diameter of the eye. Anything further to the front would be considered peripheral. So between the ora serrata and the equator is the peripheral retina. Between the equator and the optic nerve and macula is the, is the more posterior retina.
Q All right um, and one last question before we move on. In this illustration um, it looks like there is red veins and then what almost appears to be white. What are the different colors illustrating?
A Well um, normally when we, when you draw anatomy you draw the retinal arteries as red and the veins as blue. Here it looks to me like um, the veins are drawn in white in this area. But the difference between the--when you look at the retina. The differences between the arteries and the veins, the veins are larger in caliber. They tend to be a little bit more dilated. And they fill on the angiogram later in the study.
Q So in any event this illustrates both, that both arteries and veins go uh, throughout the retina I that right?
A That's correct.
Q And um--
A The blood comes in through the art--arterial circulation, feeds the retina all the way to the periphery and then uh, feeds into capillaries. And then the capillaries feed into the veinals which feed into the veins. The pressure--the hydrostatic pressure within the arteries is significantly higher than the veins. So that makes a difference in different bleeding mechanisms.
Q All right. Are you able to show us what a normal infant eye looks like without any retinal hemorrhages?
A Yes. So this is a RetCam picture, just--here we’re looking at the eye in cross-section. But if we were to stand here and look directly through the pupil through at the optic nerve which is what the RetCam photograph does then this is what one see. It may be helpful to dim the lights a little bit. If that’s possible. But um in an eye that has a clear gel, in other words there’s no blood or impasse, there’s no cataract one can see directly towards the back of the eye, the retina, and here we see the retinal blood vessels. These are the major arcade arteries and vein in this area. Thank you that’s much better. And um, here they, they--the arteries leave the optic nerve, go to the periphery and then the blood comes back (indecipherable) veins. These are the large veins, the major veins, these four. This is a picture of the right eye. And this area right here is the macula. The macula is where there’s--the sharpest vision, the most detailed visual processing occurs here. And this area is generally devoid of vasculature. Um--
Q So this is an image looking through the dilated pupil all the way to the back and the circle--I’ll use my pointer for a second--this circle here is the optic nerve is that right?
A Yeah. And normally the optic nerve has sharp borders. It has a pink color, it has a central cup. This is a normal looking optic nerve. This is a normal looking macula. It tends to have a little greater pigmentation and a certain reflex that occurs. And you see also these sort of more irregular vessels um, more peripherally they’re apparent here. These are choroidal vessels. This is has to do with the circulation on the outside of the retina. The choroidal circulation which is the second circulation in the back of the eye. And you also notice that there’s a general color, this red hue, the red reflex. That is caused by the choroidal blood vessels and the pigment layer. The pigment epithelium which sits between the retina and the choroid give this sort of uniform red reflex.
Q So Doctor I would’ve jumped the gun and said that that right there which you’ve called the macula that that was a retinal hemorrhage so I obviously would’ve been wrong on that?
A That--this is not a hemorrhage. This is a little dark pigmentation here because the retina and the retinal pigment epithelium are thinner, but this is the normal pigmentation associated with the macula.
Q So do you have next in your presentation um, a comparative slide from Naomi’s RetCam?
A Yes I do.
Q Would you tell us what we’re seeing here and explain this--the significance of this?
A Sure. This, this is a RetCam picture. The same, the same technique exactly as was presented on the last slide. This is--it’s labeled as Naomi Burns and the imaging date of March 27th. This is a picture of her right eye. Umm, you see--
Q How do you know it’s the right eye?
A Okay. You know the right eye because when we’re looking at the eye um, the macula which is here is always temporal to the optic nerve.
Q Temporal meaning what?
A Meaning if you were--let’s say if we were looking at Naomi um, this would--this is her right eye, this would be right ear out here, and her nose would be here. So more lateral refers to temporal um, so uh the, the macula is always outside or more lateral to the optic nerve. That tells us this was the right eye. If it were a left eye the macula would be sitting over here if the optic nerve was there.
Q All right. And do you see retinal hemorrhages here?
A Yeah I see that the media is clear. There’s no vitreous hemorrhage.
Q What’s that mean vitreous--
A That means there’s no blood within the vitreous gel because if it were you would not be able to see this type of detail. So we see hemorrhages of--really two types of hemorrhages here in her right eye. We see these larger sort of more globular looking hemorrhages. Here’s one of them. Here’s another. A third. A fourth. Um, these--if you notice these hemorrhages they obscure the retinal vessels. One cannot see the retinal vessels through this hemorrhage. This is another example one. So these are pretrial hemorrhages. These are hemorrhages that are sandwich between the vitreous gel and the retina. These are--they’re larger and have this type of appearance. These are--
Q So are you--
A --preretinal hemorrhages.
Q Doctor are you saying that those hemorrhages that you just pointed out are preretinal or that you can determine that because the hemorrhage itself obscures the view of the vessel?
A Yeah. Based on the color of these hemorrhages, their shape, their location, and the fact that they obscure the underlying retinal detail entirely that tells me that those are preretinal hemorrhages.
Q Okay. And um, what else of significance do you use in this, in this--
A Okay. And then you see another set of hemorrhages which are more more smaller. They’re again concentrated sort of around the first bifurcation of the retinal vessels. And they’re deeper. You can see that you--that the retinal vessel here travels over this hemorrhage. You can see the retinal vessel clearly, but you see a hemorrhage underneath it. And these, these hemorrhages given their color, their smaller size, these would be called dot or blot hemorrhages commonly when we label these. And these are intraretinal hemorrhages. Given their color, their shape, and their distribution in size.
Q Now are there any--this is--it looks like ends in 621 on this image ending in 621 is there any subretinal hemorrhage that you can point out to us?
A I do not see any hemorrhage here that um, could definitely be called subretinal hemorrhage. Now sometimes uh, as the retinal hemorrhages and preretinal hemorrhages clear they tend to clear faster than subretinal hemorrhages. Subretinal hemorrhages tend to linger around more. And when you have a situation where you have a severe amount of hemorrhage. This is not severe. I would say this would be moderate. But if you have severe hemorrhages intraretinal and preretinal sometimes you might miss subretinal hemorrhages and sometimes those subretinal hemorrhages become--maybe become more apparent as the retinal hemorrhage and intraretinal hemorrhage clears. But actually here I have a pretty good view of all of the retina. I’m not, I’m not really um, missing significant detail and I see that really these hemorrhages are preretinal and intraretinal. And I don’t see any particular hemorrhage that I would, that I could easily call subretinal.
Q Doctor before we move on let me just--let me just pause here. Is part of your practice a surgical practice?
A Yes. It’s a--
Q You--
A --a heavy part of our practice.
Q Do you do a lot of retinal surgery?
A Yes.
Q On children?
A Yes.
Q Okay. How frequently do you do surgical surgery--surgical intervention on pediatric--in pediatric retinal cases?
A I do about 25 retina procedures a week. And at least half of them are on children.
Q Now is there anything about this photograph, this RetCam photograph that you would look at that and say this child is a candidate for surgical intervention?
A No this does not look like a surgical situation. I would, I would consider surgery if there was um, a significant amount of vitreous hemorrhage so that the hemorrhage blocked the view of the retina. Meaning that it would also block the patient’s view out. In a child you have to be concerned about visual development and the the possibility of developing a lazy eye also known as amblyopia so you don’t want to leave an eye without vision for a prolonged period of time. So if there was blood within the vitreous gel we want to evacuate it in order to restore vision. It would also enable us to see what’s going on diagnostically. Um sometimes there’s blood trapped within the macula either in the sub--subhyaloid or preretinal area or underneath the internal limiting membrane which is the most superficial part of the retina. There can be blood trapped in this area that’s another reason to evacuate hemorrhage or if there’s retinal detachment. But in this situation this child um, despite this aggressive looking distribution of hemorrhage uh this child with this pattern of hemorrhage should have relatively normal vision. In fact if you did not dilate this child you would not know that there was hemorrhages here based on the child’s visual behavior. And this pattern of hemorrhage being preretinal and intraretinal will clear very quickly within a matter of two weeks. The blood, the blood in many cases will be completely gone. And so there’s really no reason to intervene at this time on this patient.
Q Now you said uh, you used the word moderate that this was a moderate case. What does that mean?
A Meaning that the amount of hemorrhages that I see here are not that severe. In clinical practice I would say--you know if we had to describe the severity of hemorrhage on a scale of one to ten this would be about a four or five.
Q All right. Can you show us the next slide then from Naomi that you selected?
A Sure.
Q And I see from my uh, that it has the same number. So these don’t appear to be individually numbered slides?
A No I think maybe this is her medical record number I’m guessing.
Q All right.
A But uh this--now here again this is, this is a view of her left eye.
Q Okay.
A Because the optic nerve is here and the macula is here. So we’re looking at the left eye now. And you see again uh that the media is clear. This slide is a little bit out of focus um, so it looks a little granular but you see the optic nerve is pink, has a sharp border, a normal cup, you see the retinal vessels are normal in size and again you see a similar type of hemorrhage--really two types of hemorrhage present. Some of them are preretinal. And you should be able to tell now that this is a preretinal hemorrhage. This is a preretinal hemorrhage here. Maybe here. And then you’ve got some um, intraretinal hemorrhages which are deeper. You see that they are not as um, um, intense in terms of the color. This is a kind of maroon color. This is more of a red color. These are intraretinal hemorrhages and they’re blot shaped. They’re a little bit smaller. And you see their distribution. And we’re looking here at the central part of the eye. We’re looking at the optic nerve and the macula and a central view of the retina. We’re not seeing the periphery on these pictures.
Q Wait a minute what does that mean? Because um, to a layperson this would seem to be the periphery. I would be looking at the outside of the--
A No.
Q --photograph.
A No this I not a view of the periphery because if you--let’s go back for a second to this schema here. What we’re seeing here on that central picture you’re seeing the optic nerve and retina and you’re seeing about this much of the retina. You’re seeing the retina to his first bifurcation of vessels. So you’re seeing the central posterior pole area. There’s plenty of retina all the way to the periphery the ora serrata that are capture on these pictures and um, you really have to look more peripheral to see them. So this is a central picture because it’s really centered on the optic nerve and macula of the right eye. This is a central picture of the left eye. The optic nerve and macula. And we do have some more peripheral shots that we were able to find. Here this is a more peripheral view. And you notice that you don’t see the optic nerve on this view. You see the retinal blood vessels here. And they’re coming together here. So in this picture the optic nerve would be sitting right here.
Q Way down below the picture?
A Yeah. So you know these pictures--they all--this is not the edge of the retina. This is just the edge of the view of the camera. So what happened here is the photographer moved the camera so that they could get a more peripheral evaluation. And here you see um, there’s a little bit of change of color as you go more peripheral. It tends to look a little more grey. And that’s partly due to the color of the retina and partly due to the technique of the photograph. But importantly we notice here that most of these hemorrhages are sort of in the posterior pole and extend to about the first bifurcation of the retinal vessels. That’s where the bulk of them are. More peripherally you see that’s there really not as many hemorrhages far fewer than you see central. And this is a peripheral view of her left eye. And this is another peripheral view where you can see the optic--it’s not peripheral because you can still see the optic nerve. You see where the hemorrhages are concentrated around the first bifurcation of vessels and you see more peripherally that there tends to be less--much fewer hemorrhages in this case. That’s important because the distribution of the hemorrhage both in terms of how deep they are but also how peripheral they are can give us some insight into the mechanism of what caused them.
Q So, I think I need you to explain to the jury a little bit more of what we’re looking at using my pointer. I see this whole area here which as layperson when I look at that it looks to me like that’s just a bad spot in the film like for whatever reason the attempt didn’t work. Am I wrong on that?
A No you’re wrong. I mean this is, this quality is reasonable. Um, it is easier to see the central part of the retina than the periphery just due to the optics of the eye. The optics of the camera. But I can see having looked at many thousands of pictures like this. I can see the retina here even though you may think it’s uh impossible to see. I can see the retina here. I see like there may be a faint hemorrhage here. I see the choroidal circulation here. And it normally looks kind of dusky like this in the periphery. But it’s enough to show you like for example there is a hemorrhage right there. But I don’t see any hemorrhages in this area. There may be one there.
Q So what, what’s the significance before we move on um, what’s the significance of the hemorrhaging being lumped around the back part of of the eye? Or gathered or collected whatever term you would want to use.
A Well um, there are different disease mechanisms that can cause retinal hemorrhages. For example there are certain conditions that cause hemorrhaging greater in the periphery than the center. For example decompression hemorrhages and reperfusion hemorrhages um, and we’ll talk about these different mechanisms. But those two mechanisms tend to be associated with more peripheral hemorrhage than than central. Um, the, the hemorrhages that occur when you have an acute rise in intracranial pressure such as--if there’s a sudden rise in the pressure in the cerebral spinal fluid. For example if there was a subdural hematoma that occupies volume and raises the pressure or if there’s a blunt trauma that causes a hemorrhage or a cerebral aneurysm that causes acute rise in intracranial pressure well those hemorrhages tend to be more distributed centrally than peripherally because what happens--what’s happening in that case is that there’s an obstruction of venous outflow at the optic nerve here because the vessels are basically being pinched off by the high pressure and so the blood tends to be more concentrated centrally than than peripherally although it can extend to the periphery. The other important mechanism that we’re considering is shaking injury. With a shaking injury there’s angular acceleration and deceleration of the head. And movement of the gel relative to the retina. Normally the gel is adherent to the retina. And if the gel is moving back and forth causing sheering tension, sheering stress force is on the retina. Well that stress of the gel on the retina effects the entire retina from the optic nerve all the way to the periphery. So you would expect that the hemorrhages would be equally concentrated and the periphery is in the center.
Q In a shaking case?
A In a shaking case.
Q So you’ve shown us now four of Naomi’s slides but you actually in your review looked at all of them is that correct?
A Yeah I just picked some of the more representative ones to show.
Q Okay. So in your, in your review if I were to ask you to give me a curbside consult based on the RetCam photographs of Naomi Burns uh would you be able to look at this information and tell us um, what your differential diagnosis would be at that point? I mean do you typically when you see something like this have sort of a list of things that you think--
A Yes.
Q --you want to consider?
A Right.
Q And just would you explain to the jury by the way just because I use that term and I think you’ve used it now at least once. What is a differential diagnosis?
A Okay. Differential diagnosis refers to um, a list of um, medical conditions or medical diagnoses that have mechanisms that could result in these clinical features. So this is very popular--very much popularized by the show House. Where each episode is about a case with a differential diagnosis so if you’ve seen that show you may understand the process. You come up with a certain--a certain set of clinical findings. For example here we have hemorrhages that are moderate in severity. They’re distributed more central than periphery--peripheral. And they are preretinal and intraretinal and bilateral. So those are the clinical features at least if we’re just looking at the eyes. Not excluding the--there may be some information about the head, presence of subdural hematoma and so forth. So if we put all of those clinical features together on a list and then we say okay what disease mechanisms can we think of that could potentially cause tis pattern of bleeding plus the other clinical features, the seizures, the, the respiratory decline, the intracranial hemorrhage. So that process thinking--and this is really what physicians are paid to do is to take the clinical findings and think about what diseases mechanisms could cause those clinical findings. Put them in a list and weigh them in terms of severity. You know what is the most likely, what is the least likely. And you use the word pathognomonic. Pathognomonic means that there’s only one thing on your list and it absolutely is 100 percent that thing cause it’s the only thing that can explain these findings. That’s rarely the case. Most--more often the case um--
MS. SEDORE: Judge I’m sorry I’m going to object to the narrative response here. There hasn’t been a question for some time.
MR. CRONKRIGHT: I’m happy to ask a question your Honor.
THE COURT: All right. Go ahead. Let’s put a question in there.
BY MR. CRONKRIGHT:
Q So in any event Doctor at this point in the analysis with this type of a presentation in your clinic or in a hospital setting can you walk us through what the common things are to be on a differential diagnosis?
A Right. Okay. So I see this pattern of hemorrhages you know on a regular basis. And the most--you know I came up with this list. So this is my differential diagnosis based on looking at those hemorrhages. The first thing I would think of is an acute rise of intracranial pressure.
Q And acute means what?
A It means very rapid. So a sudden rise in intracranial pressure as it would occur with subdural hemorrhage. Uh would cause the pressure rise and the cerebral spinal fluid and would cause impairment of the circulation, the venous drainage out of the optic nerves as I showed you. That would result in a backpressure. It’s kind of analogist to pinching a hose that has water flowing. Well the hose might burst and some water--in this case blood--would leak out and most of that blood would be intraretinal and preretinal similar to the distribution that we see here. And um most of it would be concentrated in the posterior pole. Um, the central part of the retina. And we know that Naomi was at risk for having this type of process because she had, she had a vacuum delivery um, or a vacuum was used during her delivery and she had an enlarging head circumference which is a sign of, of subdural hematoma in a neonate or an infant a couple months old. So there was probably the presence of chronic subdural hematoma which was verified on the imaging studies. And in that situation there’s a high propensity for intracranial hemorrhage to occur. These rebleeding. And these can occur with minor accidents. And that has to do with the anatomy of the brain when it--when the head--the head is enlarged due to the presence of chronic blood. There tends to be vessels on stretch and neurovascular memories can grow and that causes a high propensity of rebleeding with minor accidents. And when that occurs there’s as I said an obstruction of venous drainage at the optic nerve and you get superficial and intraretinal hemorrhages more central than peripheral. So that--that picture that we saw is very compatible with this uh, mechanism. So this would be the number one thing on my differential diagnosis.
Q Let me ask you a couple of questions about about the number one thing which is the acute rise of intracranial pressure. Um, you said it was like pinching off a hose. Um, which is something probably most of us have done. What we don’t typically see though is that we pinch the hose and the hose explodes. So what’s the, what’s the mechanism here that makes so if you pinch off the hose, you have actual bleeding or hemorrhage inside of the eye?
A Well the retinal blood vessels are not like a hose. They don’t have the tensile strength in the wall, the strength to contain. So they don’t--the veins usually don’t form aneurysms. They tend to just leak blood. So one of the common things that one can see is if one includes a vein in the retina um, that rise in intravenous pressure will cause blood to seep out. This is a common thing that we see and you know the retinal vasculature behaves differently in the hose in that respect.
Q Okay. So what would be next on your differential diagnosis?
A Okay. So the next thing that I can think of is decompression hemorrhage. Um, decompression hemorrhage is when you have an elevated intracranial pressure and then it suddenly drops. And that sudden drop in pressure can cause bleeding within the retina. And we don’t know exactly how that occurs. But it’s something that we see regularly. We see it in cases uh, you know where the--there’s been an aneurysm in the head and the pressure is very high. And then you suddenly decompress it and you cause, you cause due to the sudden reperfusion or reestablish blood flow you can get superficial and intraretinal hemorrhages occurring. Um, and they occur form the center to the peripherally sort of uniformly. They can occur anywhere. They’re not associated with subretinal hemorrhage and they clear quickly with minimal long term damage to the retina. These are features that we saw in Naomi uh, there was no subretinal hemorrhage. The blood cleared quickly. And it was distributed from the center to the periphery. And she did have a procedure--actually on two occasions where the intracranial pressure was decompressed and that was when she had lumbar puncture procedures done. I believe on the 25th of March. So when she had a lumbar puncture procedure blood--I’m sorry a needle was placed through her lumbar spine into the cerebral spinal fluid and some of that fluid was removed. And that causes a sudden drop in pressure. And that can be associated with decompression hemorrhage.
Q Well I noticed here you’re using the word sudden. And on the last slide you used the word acute. Is that--
A Those are similar.
Q Same thing?
A Yes.
Q What’s the, what’s the significance of that if any because I guess I’m wanting to know why it has to be acute decompression or acute rise in intracranial pressure in order to make your differential diagnosis?
A Well uh, sudden slow rises and falls in pressure um, they are--they allow mechanisms to occur--homeostatic mechanisms to occur where you don’t have sudden bleeding happening. It needs to be a rapid rise in intracranial pressure to cause bleeding. If the pressure rose very slowly um, the arterial pressure in the vein--I’m sorry the arterial pressure in the retina, the venous pressure in the retia would sort of accommodate to that slow rise and you would not, you would not typically see retinal hemorrhages. Same thing here uh, if you have a very slow decompression process uh you’re not likely to see retinal hemorrhages occurring.
Q And and it seems a little confusing to me and maybe you can address this for me. It seems to me that if you’re talking about a decompression even and you’re actually reducing the pressure that taking the pressure off seems like a good thing to me and why would you get bleeding from that?
A Well you can think of it as um, a sudden--when you take the pressure off you allow a sudden inflow of blood into the retinal circulation. And um, the--there were some changes that happen when the circulation is impaired. There’s free radicals that are released. The vessels dilate. And in that setting if you suddenly reestablish flow and you--you’re basically kind of um, you know the high pressure in the head is kind of damming of the circulation. And so there’s kind of a back pressure of blood that sudden released with a decompression. And so you have a very exaggerated flow to an area that has not had flow for a while and those blood vessels are dilated and they have propensity to bleed at that time. It’s a very sudden event. And it just lasts for you know seconds.
Q Now you read Dr. Besirli’s uh, report where the RetCam photographs were taken correct?
A Uh-humph.
Q And my, my understanding is that at the time he took those photographs Naomi was sedated for purposes of the MRI already is that your understanding?
A Yes.
Q And um, then uh did you see in his report where he noted in the right eye that there were possible subretinal hemorrhages in the right eye?
A Yes.
Q Um, so if there was subretinal hemorrhage can we just check this one off this list? I mean is that how a differential diagnosis works?
A Well decompression hemorrhage would not typically cause hemorrhage in the subretinal space.
Q Okay.
A So decompression hemorrhages are typically superficial and intraretinal hemorrhages. Now it may be difficult at the outset to say for sure whether there’s subretinal hemorrhage because the preretinal hemorrhage and the intra hemorrhages might be in the way. But subretinal hemorrhages tend to take a lot longer to clear and they’re also associated with a reactive process in the pigment epithelium. Leaving some scaring. And so um, usually if that’s the case one can just wait and see if the blood clears completely and quickly and there’s no pigment reaction or no persisted of subretinal blood then you can say more comfortably that there was no subretinal hemorrhage. But with this decompression mechanism you would not expect to see subretinal hemorrhage. You would expect to see subretinal hemorrhage in a shaking baby mechanism which we’ll also talk about as part of the differential diagnosis.
Q All right. What’s next on your differential diagnosis?
A So the next thing one could consider is birth related hemorrhage. This child was approximately ten weeks old at the time that this--of the admission. And um, many children as they travel through the birth canal they can develop retinal hemorrhages especially if the, if the delivery was traumatic, if it was--it there was suction applied to the scalp. And a subdural hematoma. Many of those children will have preretinal hemorrhages. Those hemorrhages can can involve the posterior pole and the periphery. Again they are usually superficial. And it set--many people say that these usually clear within the first six weeks of life. But I’ve operated on many eyes that have had hemorrhages that were related to birth, that I followed since birth, and they haven’t cleared up to age four months or more. And so many of these cases I’ve actually had to operate to remove the blood. Um, so this is another potential cause for the retinal hemorrhage that they may have been there since her birth process, since it was a difficult birth with vacuum and was associated with subdural hematoma and an expanding head circumference over the first weeks of life.
Q All right. So let’s pause here. So far you’ve told us three things that would make it to your list, your differential diagnosis. Um, but now you have um, well let me back up. Typically your differential diagnosis is the things you’re thinking about at the beginning of your analysis correct?
A Yes.
Q And then you typically would do things to examine the case further and rule out whatever can be ruled out is that fair?
A That’s fair.
Q Okay. So um, at this point obviously you have an incredible amount of information about Naomi. Um, and are you now able to look at any of the things that you talked about and rule them out? For example the birth related uh hemorrhages? Can you rule that out?
A No. These are things that are on the differential diagnosis that I think are possible explanation for the retinal hemorrhages that that I cannot rule out based on the history or all of the clinical findings that were present. And so still at this moment I think these are possibilities.
Q Oh okay. So if the increased--or the um, sudden increase in intracranial pressure is still on your list?
A Yes.
Q And uh a sudden decompression is still on your list?
A Yes. And birth hemorrhages.
Q By the way going back to that first point before we move on to the next slide, with an increase in intracranial pressure that can be--I know you said it would be sudden or acute, but can it be transient? In other words can it can rise and fall at different times?
A Yes absolutely.
Q Is there a time period for which the increase in intracranial pressure must last in order for it to cause retinal hemorrhages? In other words does it have to get a certain point? Does it have to last a certain--
A No. The hemorrhages will occur suddenly. But the rise intracranial pressures is often responsible for the clinical deterioration of the child. The presence of seizures. Altered mentation. Uh vomiting. Um, and decreased respiratory status. These are all features that are often related to an elevation in intracranial pressure. So um, and there’s a certain amount of forgiveness in this system in a neonate because for example if there’s blood that that’s occurring there’s a certain reserve that so when it starts bleeding there isn’t usually a sudden pressure rise until the blood occupies a certain volume to accept the elasticity of the system and then further bleeding uh will cause a sudden rise. But that sudden rise within seconds will cause the retinal hemorrhage and if the pressure rise persists then you will get clinical deterioration. If it’s just an instant like that the baby will look normal and won’t present to the hospital.
Q All right. So um, before we move on I want to talk about timing of the three that you’ve told us already. Obviously you--I’m pretty clear that if it was birth related that at least they can last 11 weeks because that’s about how old Naomi was when the RetCam was done.
A Yes.
Q Do you--and that seems consistent with, with your report that you followed surgically or that followed from birth in patients and found the retinal hemorrhages still present at four months?
A Yes.
Q Okay. But what about the other two that are so far on our list? The sudden rise or the decompression related to intracranial pressure what are you able to tell us about um, timing? In other words if that were the case how long would I expect those retinal hemorrhages to last?
A Um, well with those two mechanisms the retinal hemorrhages are superficial and intraretinal predominantly. And those types of hemorrhages on average will clear within a matter of a few weeks. If they’re very severe it might take longer. And there’s always outliers but if the hemorrhage is preretinal or intraretinal it, it clears quickly whereas if there is subretinal hemorrhage uh the hemorrhage typically takes longer to clear.
Q And is that based on sort of an approach where um, or let me ask the question a different way. Can we scientifically with any validity look at retinal hemorrhages and tell when, when they first occurred?
A No not general. Generally not. Just by examining these hem--let me go back here. Just by examining these hemorrhages here intraretinal and preretinal these hemorrhages could’ve occurred yesterday or today or six eight weeks ago. They can still look the same. I cannot date with any type of precision how old these hemorrhages are.
Q But it’s cl--
A When they reach a certain age they might--the blood may start look white, but that’s generally not the case with intraretinal hemorrhages. That’s usually with vitreous hemorrhage. If it’s--if there’s vitreous hemorrhage that’s present for months the blood may turn white or grey. But the intraretinal hemorrhage.
Q Okay. So what’s next on your differential diagnosis Doctor?
A Okay. So another consideration is venous or sinus occlusion. Um, if you have occlusion of the draining veins either in the retinal circulation or the larger venous systems of sinuses in the head if there’s an obstruction or a clotting within those vasculature you can, you can intraretinal hemorrhage.
Q Let me pause and ask you to define some for us. What’s occlusion?
A Occlusion is a blockage or stoppage of flow.
Q So in, in this component of your differential diagnosis when you said venous occlusion are you talking about the veins in the eye or the veins elsewhere in the head?
A Both.
Q Okay.
A Because the veins in the eye will drain into the larger veins. So either uh, either drainage of a major vein in the eye or in uh elsewhere in the drain system as it leads to the heart an occlusion there may cause a rise in intravenous pressure which can be manifested as intraretinal hemorrhages and preretinal hemorrhages similar to what we’ve seen.
Q So when you use the word sinus here--
A Yes.
Q --is that like runny nose kind of sinus or what are we talking about?
A The sinuses are major venous collections within, within that--within the brain.
Q So sinus in this instances is a vein where other, other veins deliver blood to them--
A Yes.
Q --on their way back to the heart?
A You can think of it as a humongous vein.
Q So the larger veins?
A Yes.
Q So you have--on this differential diagnosis checkpoint you’ve got a restriction of floor in a vein or one of the, sinus areas?
A Right. So there’s some question amongst the radiologist whether a venous occlusion or a sinus occlusion was present. Um, the child did have an elevated platelet count which we call thrombocytosis which put her at risk for venous occlusive processes. And this type of venous occlusion can be associated with, with a, with a rapid elevation of intracranial pressure. And it can--and obstruction of venous drainage in the retina causing those retinal hemorrhages. And often in that situation one will see vascular dilation and tortuosity of the vessels. Dr. Besirli when he did his exam he suggested that there was vascular dilation and tortuosity so that may correspond to this mechanism. Uh usually the blood is distributed along the blood vessels can be central or peripheral and can mimic other forms of retinal hemorrhage.
Q Now you’re not a board certified radiologist or neuroradiologist or anything like that is that true?
A No I rely on them for--to help me with creating differential diagnosis and--
Q So as to the actual existence in Naomi of a um, venous occlusion am I better off asking that question to, to a radiologist?
A Yes.
Q Okay. So is this different than than the prior--actually two slides ago where you talked about a sudden increase intracranial pressure because it seems like this is another way of saying the same thing?
A Well it’s, it all may come down to a final common pathway or common mechanism. But this is another reason that she may have um, you know a reason for her to develop retinal bleeding is that if there was truly occlusion in some of the major venous systems that are draining the eye that will result in a similar type of mechanism where you know the veins are unable to drain. The pressure rises, the veins become dilated and tortuous. And then they start to bleed.
Q What’s the mechanism--because I think you said also that there could be a venous occlusion outside of the eye that could follow this path. What would the mechanism be outside of the eye or a venous occlusion would produce retinal hemorrhages?
A Well venous--if it’s a major sinus occlusion it can cause intracranial pressure rise.
Q Okay.
A And that can also be contributing via the first mechanism that I talked about.
Q Okay. So with the benefit of hindsight having reviewed everything that you have are you now able to check this one off the list?
A Uh it still is on the differential diagnosis because there’s still some question of whether she had sinus and venous occlusion and she did have thrombocytosis. So it’s lower on the differential diagnosis than the others that I mentioned, but it’s not--I cannot rule it out.
Q Okay. All right. What’s next on your list?
A Okay. Um, the next thing--consideration is reperfusion hemorrhage.
Q What’s that mean?
A Okay.
Q What’s reperfusion?
A So we see this in children that have loss of circulation to the head for a period of time and then the circulation is reestablished. For example if the blood pressure dropped for a long period of time. And I know that there was some some question in the field of whether her blood pressure was low or when she as hypertensive period of time. So this is a consideration. If the blood flow to the retina becomes compromised because the circulation--the systemic circulation is compromised. The retina becomes ischemic, in other words deprived of blood flow. And then the vessels dilate. And then when the blood flows reestablish you can get superficial and deep hemorrhages. These tend to be more peripheral than central. But this is another potential mechanism in this case.
Q Okay. What else doctor?
A Okay these are other things that are considered. Sepsis, sepsis means a bacterial infection. When she was first hospitalized this was a major diagnostic consideration for her. She had been vomiting and she looked critically ill. And there was a consideration of a bacterial infection. In fact she was started on broad-spectrum antibacterial and antiviral antibiotics because of this consideration. Well sepsis bacterial infection can involve the retina itself and it can cause clots to occur in the retinal vasculature circulation and it can cause a pattern of hemorrhages that very much mimics what we’ve seen so far.
Q So if Naomi was um, sick on the 16th of 17th of March before these RetCam pictures were taken could something about that, if she had a norovirus or some other virus or was somehow carrying a gastrointestinal infection that could contribute to retinal hemorrhages?
A If she has serious infection such that the cascade of events occurs that there’s blood in the systemic circulation and then immune complex formation and the body’s defensive reactive mechanisms to bacterial or other viral infection that can cause a distribution of hemorrhages that’s nearly identical to what we’ve shown in her pictures.
Q Okay. And I see you have Valsalva next what’s that?
A Valsalva and asphyxia these have to do with you know--Valsalva is a rise in intrathoracic pressure and this can happen if it’s in an adult it can happen if they lift something very heavy or they bear down like when they’re constipated. But a child can happen sometimes if they’re screaming uncontrollably and the intrathoracic pressure rises. It can impair you know venous drainage and cause a pattern of retinal hemorrhages. Usually not as extensive, but it has been seen and reported.
Q So in terms of the mechanisms we’re talking about something going on inside of the abdomen or the chest of the stomach or--
A Yes.
Q --that kind of thing?
A Right.
Q Okay.
A Again impairing the circulation. The drainage. The elevation of intrathoracic pressure, the vena cava pressurizes. There’s impairment of venous drainage.
Q And then I see you have shaking.
A Yes. Shaking injuries is definitely a consideration. Um, shaking injury is a completely different mechanism. It has to do with angular acceleration and deceleration of the head and of the eye. So the eye moves in a rotational direction and then sudden stops. And you can picture the eyeball sclera stopping but the gel which is also moving has connect energy and it continues to move and it causes rotational sheering stress on the retina. And that cause a variety of problems in the retina. One of them is hemorrhage okay? But the hemorrhage with with shaking injury tends to not be limited to just the, the preretinal and intraretinal spaces. It tends to occur deeper in the subretinal space. And is associated with a host of additional traumatic findings. Because the shaking stress causes such wide spread damage to the retina that the hemorrhage is only the tip of the iceberg. And as the hemorrhage one finds a lot of additional damage to the retina, retinal splitting, retinal pigment, optic nerve damage, avulsion to the vitreous base. And usually a characteristic pattern of hemorrhaging and retinal findings as the hemorrhage clears in those cases that are associated with significant visual and neurologic morbidity and long term reorganization of the retina. And I will show you cases that I’ve managed with that diagnosis where we can see these types of features very clearly. Now can you have shaking injury with just superficial retinal hemorrhages like we’ve seen in Naomi? It’s not the typical thing that I see as a clinician with a serious shaking injury. It’s not what, what I see when I make the diagnosis of shaking injury. It requires more than superficial hemorrhages. But I do believe that it’s possible if the shaking is very mild. That perhaps one could get superficial hemorrhages without deep retinal hemorrhages and other structure changes. But it’s not what I typically see.
Q All right. But in any event shaking in your early assessment would be on your differential diagnosis?
A Yes.
Q Okay. Um, and um, probably has been on countless occasions?
A Yes.
Q Okay. All right. Um, and then why is CPR on--
A Well I include that--I don’t think it really happened. I mean there was some recitation of the child in the field, but I don’t think that CPR is--really occurred. So I would probably throw this one off my differential after looking at the case.
Q Based on your review of the case you’d probably--
A Yes.
Q --rule that one out?
A Right.
Q Got it. Okay. And where do we go from there Doctor?
A So I’m gonna show you examples of cases that I’ve managed that have retinal hemorrhages and how they different. For example I mentioned that you can have hemorrhages related to birthing that persist. Here’s an example of a child who is four months old at the time of this examination who had, who required surgery for evacuation of this blood. This blood was sitting right in front of the macula and and not clearly and prohibiting vision and causing a lazy eye. This was at four months after vacuum delivery. So birth associated hemorrhages can last and they can look very similar to Naomi with this distribution of preretinal and intraretinal hemorrhages and they can be part of the differential diagnosis. And since no one examined her prior to that first examination on the 25th we don’t look if those hemorrhages preexisted. Um, this is an example of two year old who fell while running, it was a witness fall, it had blunt head injury and subdural hematoma rise in intracranial pressure. And you see distribution of hemorrhages that are preretinal and intraretinal. These are not nearly as as many as we saw in Naomi’s case. But I--this was just the only representative one that I had handy. But I’ve seen cases with very significant hemorrhage from short falls, long falls, running accidents, playground accidents that cause retinal hemorrhages superficial and intraretinal. Very similar to Naomi’s.
Q Okay.
A Um, this is a case of hemorrhages that I think are significantly more impressive that we--than we saw in Naomi’s case. And this was a 17 month old child who had a significant subarachnoid hemorrhage with an elevation in intracranial pressure. And there was a consideration of child abuse and I was asked to see the child initially at the bedside and I saw the child at the bedside and the child had a normal retinal examination at that time.
Q Meaning what?
A Meaning that there was no retinal hemorrhages, there was normal profusion. There was no evidence of hemorrhage whatsoever in the back of the eye.
Q So--just so I understand what I’m looking at here this looks to me that there are probably several dozen hemorrhages is that right?
A That’s right.
Q And there’s--what is the large--
A This is about a seven out of ten in terms of the severity scale. There’s a large you know preretinal hemorrhage right here in the macular region. And several--well numerous preretinal and intraretinal hemorrhages throughout the posterior pole. This is the right eye. This--this is the left and you see there’s severe retinal hemorrhages in the macula all the way to the periphery and this--these hemorrhages I noticed when I came back to examine the child after decompressive neurosurgery, during the neurosurgical procedure there was an incision of the dura and evacuation of a large volume of blood. And a sudden decompression of the, of the pressure in the cerebral spinal fluid.
Q All right. Let me ask you--
A And on follow up examination these hemorrhages were here. So I attributed these hemorrhages to the sudden decompression, the neurosurgical procedure, there was nothing, no hemorrhage present prior to that.
Q All right. Let me--can you back up to the prior slide for this--
A Uh-humph.
Q --17 year old--or 17 month old I’m sorry.
A Right.
Q So looking at all of these hemorrhages now this is obviously taken--all of these hemorrhages are taken with a RetCam correct?
A Yes.
Q Okay. And first examination was pre-decompression correct?
A Yes.
Q And your first examination was it under anesthesia?
A Uh no it was at the bedside. Neither of these were under anesthesia. This was not either.
Q This is not--this is--you can do a RetCam without anesthesia?
A That's correct.
Q Okay. So when--when you go back to the first examination um, without the use of a RetCam if these injuries or these hemorrhages had been present would you’ve been able to see them without the use of a RetCam?
A Absolutely.
Q And how do you do that?
A Well you dilate the pupil and you use an indirect ophthalmoscope which is a--it has a similar type of optics as the RetCam but it’s something that’s worn on the head. This is something that every ophthalmologist is trained to use. And it works as a Galilean telescope. There’s a condensing lens that one holds and when--shines the light through the ophthalmoscope--from the ophthalmoscope through the pupil and gets a reflex and it create an image on that condensing lens.
Q Now after the, the surgery which decompressed the head um, did you do a similar examination or did you go straight to the RetCam?
A No I did a similar examination and I found the hemorrhages and I wanted to document them so I went ahead and got these pictures.
Q So the purpose of the RetCam in this case wasn’t diagnostic but it was to document something that you had already diagnosed?
A Right.
Q Okay. And you’re testimony today is that this was a normal eye before the surgery and afterwards this is essentially what you found?
A Right.
Q And then how long after the surgery would this RetCam photo have been taken?
A Uh within 48 hours.
Q So within 48 hours you see this presentation?
A Yes.
Q And how does this compare to the retinal hemorrhages that Naomi had at the time the RetCam was taken?
A Well they’re similar but more severe.
Q This is a more severe case?
A More severe just a greater amount of hemorrhage. Larger preretinal hemorrhages, more numerous. Again they kind of vascular distribution. But some of them are intraretinal. Some of them are preretinal. Some of them are mixed. Like for example this hemorrhage has an intraretinal component, more peripheral and a central more glistening preretinal component.
Q So you would call this a multilayered retinal hemorrhage?
A I don’t like that term multilayered because it doesn’t specify what you’re talking about um, you know I would call this preretinal and intraretinal hemorrhage and possibly sub internal lifting membrane hemorrhage. I like to be very specific about where the hemorrhage is located. You know there’s not a subretinal component or a sub retinal pigmentation component which is significant in the context of angular acceleration deceleration shaking injury where you have those types of hemorrhages. So uh, you know yes it’s technically multilayered but I would not use that term to actually describe it in the medical records, because I want to be specific about what could potentially cause this hemorrhage.
Q But you would at least use the term that they’re bilateral because eyes were involved you showed us that correct?
A Yes bilateral, yes I would say.
Q Okay. What about extending to the periphery? How would you describe these--
A These hemorrhages did extent to the periphery as I recall. Although I don’t have very good periphery shots. It’s--this is a higher magnification shot showing, showing how--you can actually see there’s nerve fiber layer hemorrhages here. These are the flame shaped hemorrhages. These are the dot hemorrhages here. Some of them have white centers. This is a preretinal hemorrhage. Preretinal hemorrhage. Preretinal hemorrhage. I don’t see subretinal hemorrhage but of course as this blood clears it may be possible to see subretinal hemorrhages. But you know--so I would--these are --these are technically multilayered but I would call them preretinal sub internal living membrane, nerve fiber layer, and dot blot hemorrhages.
Q So in terms of um, severity I understand that this appears to you to be a more severe case um, than Naomi’s. but in terms um, the description itself is this substantially the same condition that--
A Yes.
Q --Naomi experienced?
A Essentially similar distribution of hemorrhages except here I see more flame shaped hemorrhages than hers and more numerous. But a similar type of location bilateral from central to peripheral um, superficial retina, intraretinal, and preretinal hemorrhage.
Q Okay. So is there any--because you had the opportunity to uh observe this child pre and post-surgery is there any other rational explanation for this presentation in this child other than retinal hemorrhage as a result of decompression?
A No there was no acute--other acute events or intervening event between my two examinations. It was just a major neurosurgical procedure with decompression. The child did not have coagulopathy or have any additional trauma or anything else that that--you know I scoured through the records and followed this child very carefully and--
Q Now you don’t you don’t have a RetCam in your office do you?
A I do.
Q You do?
A I do.
Q Okay. So is--were these pictures taken in your office?
A No this was taken in the hospital. I have a RetCam--one in my office, one in my truck and a lot of them in, so not all the hospitals that I service have them that’s why I keep one in the truck. But this hospital actually did not have a RetCam so I actually had to transport the RetCam and take--but I was so impressed by this that I wanted to make sure to document it.
Q All right. So you’re from California so I’m assuming your truck is not here?
A No.
Q All right so you--
A Sorry.
Q --couldn’t bring it in and show us the RetCam?
A No but these are taken directly off the RetCam.
Q All right. Okay. So in any event um, what I’m really trying to understand Doctor is--was this child continuously hospitalized from the time that you observed the child first time to--
A Yes.
Q --the time the RetCam photos were taken?
A Absolutely.
Q Okay. All right. So--
THE COURT: What we’re going to do Mr. Cronkright is we’re going to take a break right here.
MR. CRONKRIGHT: All right. Thank you your Honor.
THE COURT: For the morning. All right can we get the lights? Please hit the lights. All right ladies and gentlemen we’re going to to go ahead and take a mid-morning break. About 10 to 15 minutes. Please don’t talk about the case. All right. And see you back here in about 10 or 15 okay.
DEPUTY KERR: All rise.
(At 10:27 a.m., jury leaves courtroom)
THE COURT: Very good. The jury is no longer present. We’ll go ahead and break here for about 10 to 15 minutes. And Doctor you can go ahead and step down.
MR. CRONKRIGHT: Thank you Judge.
(At 10:28 a.m., court recess)
(At 10:50 a.m., court reconvenes)
VIDEO OPERATOR: Recalling the Naomi Burns matter case number 14-14708-NA.
THE COURT: All right. We’re back on the record. All the parties that previously appear continued to appear. We’re ready to bring the jury in?
MR. CRONKRIGHT: Your Honor if we can have just a moment. I just got an email. The Court’s unaware but Friday the Naomi had an ophthalmology visit and I just got an alert from my office that I’ve been emailed the results. I’m showing to counsel now. And I would just propose to let the Friday medical record be reviewed by the witness before we bring the jury in. it’s only a couple page document and it won’t take very long. But it’s the latest and newest. Dr. Besirli who is a witness for the prosecution potentially saw her Friday. So if we can just kind of get everybody up to speed on that just before we bring the jury in.
THE COURT: Any objection?
MR. GARTHOFF: Just those two pages?
MR. CRONKRIGHT: Let me look. That’s the cover. So yeah two pages.
MS. SEDORE: So you’re going to ask this witness about this?
MR. CRONKRIGHT: Yeah. Is there going to be an objection to that?
MS. SEDORE: Nope.
MR. CRONKRIGHT: Okay. Okay. Let me just--okay here you have page one which is the cover, fax cover. And then that’s the two pages. You got what you need?
THE WITNESS: Yep. Yes.
MR. CRONKRIGHT: All right. Dennis did you need to see this. I think we’re ready Judge.
THE COURT: All right. Ready to bring the jury in?
MR. CRONKRIGHT: Is that okay Dennis if we--
MR. BREWER: No problem.
MR. CRONKRIGHT: --bring the jury in?
THE COURT: Bring them in.
DEPUTY KERR: All rise.
(At 10:52 a.m., jury enters the courtroom)
THE COURT: All right. Welcome back. Please be seated. For the record the jury is now present in the courtroom. The Doctor’s back up on the witness stand. I would remind you sir that you’re still under oath okay?
THE WITNESS: Yes your Honor.
THE COURT: All right. Go ahead.
MR. CRONKRIGHT: Thank you your Honor.
BY MR. CRONKRIGHT:
Q Doctor in Naomi’s case was there another procedure besides the normal RetCam that was employed to visualize retinal hemorrhages in her eye?
A There was a fluorescein angiogram.
Q And what is that?
A The fluorescein angiogram gives detailed information about the circulation in the retina. And it can be helpful in the evaluation of these patients--well patients with a variety of retinal vascular diseases including retinal hemorrhages, potential trauma of various mechanism. So what it involves is injection of a fluorescein dye which is the same type of dye that’s in glow in the dark toys. It’s a simple food coloring. It’s injected intravenously. Travels through the circulation including the retina and using the RetCam imaging system with filters and a blue light one can um, image the retinal circulation in detail and look for features such as retinal circulation, areas of non-perfusion, areas of neovascularization which tend to leak. Abnormalities of the transmission of the light due to defects in the pigment layer can be visualized; areas of leakage, pooling, blockage can be analyzed. It can give us some additional very useful diagnostic information in the management of these cases.
Q Okay. And um, do you have some slides in your presentation from Naomi using this technique? Is that Naomi?
A Um, no actually this not Naomi. This is the same patient that I just um, that I just did the pictures for.
Q The postsurgical?
A Yes. This is the postsurgical patient. And this is um, uh a fluorescein angiogram demonstrating the circulation in the right eye. You can see those hemorrhages cause some blockage of the view. So this is like blocked florescent causes by um, that hemorrhage you can see, the distribution of the retinal vessels. The arteries and veins. And the sort of glassy florescent blush underneath from the choroid. You can see that there’s normal circulation in this patient. That’s an early shot and that’s a late shot. So this is a fluorescein angiogram of the same patient that had the decompression.
Q So using this technique is it too simplistic that what we’re, what we’re trying to learn is issues related to the blood flow in the veins?
A Yeah. We’re, we’re learning issues related to the location of the hemorrhage, the blood flow--excuse me--that’s occurring um, in the retina. Whether there’s any transmission defects or areas of blockage that relate to the pigment layer which is underneath the retina which is very important diagnostically. And and we’re looking at the capillary beds and areas of filling or non-filling extending from the posterior pole to the periphery.
Q Now have you actually diagnosed in your practice shaking for a young child?
A Yes I do it routinely and I have um, you know countless patients with shaking injury. Probably one of the largest clinical volumes of patients with shaking injury in my practice.
Q And are you able to approximate um, how many times in your clinical practice you have done an examination of a child and concluded that this was an acceleration deceleration injury?
A Yeah I’ve diagnosed hundreds of case of acceleration deceleration injury.
Q All right. Now um, when you use the word shaking like you did a minute ago are you including all of acceleration deceleration injuries or is that some kind of a subset? I’m trying to understand how and why you use the word shaking?
A Uh when I use shaking I refer to the type of retinal trauma that occurs with the sheering injury to the retina that occurs with angular acceleration deceleration of the head. So I’m not talking about for example a simple fall or um, you know that’s that’s an acceleration deceleration event. But I’m talking here specifically about shaking which is repetitive movement of the head back and forth with the gel carrying it’s kinetic energy back and forth against the retina and causing rotational sheering stress. That’s a very specific mechanism.
Q And then um, are there specific findings which are at least associated with shaking type injuries that um, that narrow the focus of your inquiry?
A Absolutely.
Q Can you tak--
A So--
Q Could you take us through that?
A So um, as I mentioned the trauma of shaking is much more significant than just the hemorrhage that one sees. And as the hemorrhage clears you can actually see more features of the damage caused by that sheering trauma. So these are features that when present um, individually or in combination and certainly the more of these you see the more it points to the diagnosis of shaking injury. You can’t say for sure in every case, but these are features of shaking that uh, that I look for to help make the diagnosis.
Q So if these are present then is it perhaps fair to say that you’re narrowing in on that?
A Yes.
Q That diagnosis rather--
A Yeah.
Q --than something else?
A Yeah when these are present that puts shaking injury on the top of the differential diagnosis--
Q I see.
A --when these features are present. So it would be much higher on that list.
Q All right. So let’s start with the top of this list then. What’s retinoschisis?
A Retinoschisis is splitting of the retina. I showed you that multilayered structure of the retina in the very beginning. And schisis denotes a cleft or a split within the retinol layer. Normally there’s potential spaces underneath the retina and in front of the retina but the retina itself stays as a cohesive indigitated cellular layer. When that is disrupted by sheering stress you have these pockets within the retina. They’re divisions within the retina, the retina splits. And that’s retinoschisis.
Q And how would you, how would you discover that? With that--is that something you can visualize on the RetCam?
A It can, it--yes. With the bedside examination um, and sometimes with fluorescein angiography uh and if in--more specific there’s also another test which is not commonly available called optical coherence tomography where you can actually visualize each cellular layer of the retina, but that’s usually not available in hospitals. But something that we can visualize is retinoschisis. Another feature is macular hole; macular hole is in the center part of the retina where the macula is I showed you that reflex in the beginning that you asked about. You thought it might look like a hemorrhage but it was actually the normal reflex. But sometime you can get a full thickness defect within the macula as a consequence of that trauma. You can also get degeneration of the pigment epithelium here for--the RPE means the retinal pigment epithelium. That’s that cellular layer that’s outside of the retina that I showed you on the first picture that layer of cells that was the furthest to the right just outside of the retina. That can be damaged with shaking injury. And that picture of degeneration is very typical. These pigmented cells are highly reactive and they, they develop clumps in areas of atrophy in response to that type of trauma. And even more severe cases when you have subretinal blood and pigment epithelium changes you can fibrosis. In other words scar tissues forming underneath the retina. Here’s an example of subretinal fibrosis occurring there. This looks very different than the normal retina here. There’s--excuse me--there’s scar--fibrovascular scar tissue underneath the retina here and pigment epithelium alternation.
Q So fibrosis is scar tissue?
A Yes.
Q Okay.
A (Indecipherable) scar cells. Um, and histologically these are reactive cells that react in response to the trauma and the disruption of the normal architecture. Um, as a consequence of the loss of cells the blood vessels start to narrow because the oxygen consumption in these cells is significantly less than in a normal healthy cell. So the metabolic activity goes down and the so blood vessels become intonated or narrow. And the optic nerve--
Q Well let me jump in for a minute. How would you know if the blood vessels were inundated?
A Well we can see them and then fluorescein angiogram’s very hopeful. And I’ll show you great demonstrations of that.
Q Okay.
A Uh you can also see optic atrophy because the nerve is comprised of fibers from the retina. The nerve gets damaged and instead of having a nice pink color like in this case or in previous cases it’ll turn chalky white. Like here. And this is a sign that the nerve and retina have been permanently damaged. And it is associated with a dismal visual prognosis when you see that.
Q Okay.
A Now this, this uh-- we talked--we touched about the location the hemorrhage in these different disease processes. We’ve talked about vitreous hemorrhage, subhyaloid hemorrhage, some membrane, and intraretinal hemorrhages. These are all hemorrhages that we’ve seen previously on the cases that I’ve shown you including Naomi’s cases. What’s more specific for shaking injury is blood that occurs underneath the retina and underneath the retinal pigment epithelium. And this blood has a different type of appearance uh, it’s darker and it hangs around longer and is associated with more widespread damage. And these features are more specific to shaking injury than these other forms hemorrhage which are intraretinal preretinal which can occur in a host of different things that I listed in my differential diagnosis.
Q So in terms of the hemorrhage itself the last two things, the ones that you’ve underlined are the things that help you to at least narrow down towards shaking as a potential diagnosis?
A That's correct.
Q Okay.
A When also she--sees evulsion of the vitreous base. In other words the gel, the gel as it moves back and forth becomes disinserted from its attachments to the retina.
Q Disinserted?
A Yeah. Normally the jelly cavity is directly connected--the gel is directly connected with firm adhesions. They’re adhesion molecules like fibronectin and so forth that hold the gel onto the retina. With repetitive trauma the gel becomes disinserted from the retina. And so one sees these features of the gel like the base of the gel is now avulsed from its normal attachments. And once these fibrous and degenerative process occurring within the gel itself. Now that’s harder to capture on a photograph, but it is easier to see intraoperatively or using a slit lamp biomicroscopy which we don’t have images of here.
Q All right.
A And then another feature--I’m sorry for the typo that should say peripheral non-perfusion. This is a feature that was discovered um, by my practice about ten years ago when we started doing um, fluorescein angiograms. We found that in case of shaking injury you get loss of circulation to the peripheries a secondary change.
Q Is that--
A We don’t exactly know why that happens but it is a consist finding that has been replicated by other groups.
Q And what is non-perfusion?
A Non-perfusion is lack of circulation. So I showed you this vascular pattern here. And you see there’s decent blood flow all the way to the periphery here in these cases. That will--I will show you stark contrasts to that on some of the cases of shaking injury where we’ve made the diagnosis of shaking and you see on the angiogram that there’s a loss of circulation peripheral.
Q All right so in terms of what some of these things looks like do you have that on the next slide?
A So here’s a case of a child that was diagnosed with shaking syn--injury by another practitioner. But these findings are non-specific. There’s preretinal hemorrhage and intraretinal hemorrhages here but they’re not very specific. But if you see--if you look at this eye, this eye has a splitting of of the retina with this fold occurring at the edge of the split and blood within these schisis cavity. So this is an example of macula schisis which is more specific for shaking injury than is um, the other features of just simple blood.
Q Now Doctor just so I understand terms because your list that we looked at a minute ago had retina schisis, retinoschisis, and now you’re talking about macular schisis is that--
A Yeah macular is the central part of the retina. So macula schisis just means retinoschisis within the macular.
Q The slide you just showed us just demonstrated that folding that happens when you have a macular schisis?
A Right.
Q Okay.
A Now here’s another example of an eye that had--was diagnosed with shaking, had vitreous hemorrhage that cleared but you see here long term changes you see optic nerve atrophy. You see this alternation in the pigment layer within the retina and the changes in the circulation in the periphery which are more characteristic of shaking injury and if you do fluorescein angiography as in this case this--
Q Wait a minute, wait a minute Doctor. Back up to that slide. Because you said we see here, um, optic nerve--
A Optic nerve atrophy. This is optic nerve is pale. This one and that one--
Q I don’t actually see see any optic nerve atrophy because I don’t what I’m looking for. So on this diagram what’s wrong? It looks like we’ve got the circle--
A That’s the optic nerve.
Q Yeah.
A Of the left eye.
Q Okay what’s wrong with it?
A You see how pale it is.
Q Okay.
A Compared to what we seen earlier with nice pink healthy looking nerves. This looks chalky.
Q Okay.
A It’s devoid of cells.
Q All right.
A That’s why it’s chalky. It’s got bad circulation. And you see that there’s some alteration in the pigment. You see this--there’s an area of hyperpigmentation here and hypopigmentation there in the macula.
Q And you can see that on angiogram as well?
A Yes. On the angiogram it shows it in even better detail. This is, this is part of beauty of fluorescein angiogram. And I really like doing this because it gives me so much more information. So you can see here um, and this case the florescence looks green and in the other case it looks white. But it’s really the same technique. It’s just a different different color. But you can see this area, this is kind of--we call it a geographic area of hyperfluorescents. So you see the fluorescein coming in from the choroid the vascular bed on the outside of the retina because of this pigment alternation within the retina here. So this is--because of the disturbance of the pigment epithelium and you can see it’s actually much more widespread than what I would have suspected just on the bedside examination of the RetCam photograph. You see this geographic pattern where the pigment epithelium has been disturbed and there’s been a window defect of hyperfluorescents. In other words increased transmission of fluorescein in these areas. And there’s other areas where the pigment is clumped and caused hyperfluorescents. You can also see in the circulation there’s some vascular abnormalities. There’s a lack of--this is the retinal circulation here and there are few little dilations, aneurysm changes within the vessels. And then further peripheral, there’s non-perfusion of the retina.
Q So is there anything like this going on in Naomi?
A No. I will show you Naomi’s fluorescein angiogram--
Q Okay.
A --towards--after I show you these cases. And I’ll demonstrate to you that the vascular circulation is intake. And that’s one of the reasons why Dr. Besirli did that study and he actually commented on the circulation being intake.
Q All right.
A Here’s a more severe situation where as the blood resolved in this case was also diagnosed with shaking injury, had irritability seizures, and intracranial hemorrhages diagnosed with shaking. As the blood resolved you see this, we call this fibrous, fibrosis or fibrosis metaplasia of the retina. This is disturbing and looks nothing like the original retina. It’s been completely reorganized with fiber--fibrous tissue. This is the type of reactive change that can occur to the retina after that type of stress injury.
Q Okay.
A Another example, this is the other eye of the same patient. And here you see that the optic nerve is pale. It’s atrophic. There’s subretinal fibrous this white change. The vessels are narrow. There’s pigment epithelial alteration with areas of pigment clumping and atrophy. You see them here. This is a very characteristic footprint of injury that happens after a shaking episode.
Q Okay.
A Here’s another example--oops excuse me--this is a child who was diagnosed as a shaking injury at six months. Developed seizures, developmental delay, and months later the right eye uh, I’m sorry the left eye has these fibrotic changes similar to the last cases that I’ve shown you. But there was a fresh hemorrhage in the right eye. You see there’s fresh blood here here. And as a consequence of this hemorrhage the caregivers were accused of having repeatedly shaken the patient. But actually if--when we do the fluorescein angiogram we see that that hemorrhage is actually caused as a secondary phenomenon because there’s non-circulation or non-perfusion of the peripheral retina so that as a consequence of the original shaking injury there’s lack of circulation to the periphery. And that causes secondary abnormal blood vessels on the retina which we call neovascularization. And that neovascularization is prone to cause hemorrhage. And this is one the reasons we flow patients with shaking injury very closely because they can get these secondary neovascular growths on the retina that can cause bleeding and that can actually lead to retinal detachment and traction. And so uh, one of the things that we do in managing patients with shaking is we do these fluorescein angiograms and if there is indeed peripheral non-perfusion we treat that with laser in a means of preventing this neovascularization and traction from occurring.
Q All right.
A Another example um, this is a three month who’s found in an acute coma with new and old intracranial hemorrhage. Had a clavicle fracture. Had vitreous hemorrhage in both eyes. And as it cleared it caused optic atrophy and subretinal fibrosis and pigment epithelial alteration. And on the angiogram that we did we saw these blind ending vessels with aneurysmal leakage. These little hot spots of fluorescein here where there’s more intense fluorescent. That’s because there’s leakage due to abnormal uh, permeability of those, those new blood vessels.
Q Now what’s the term blind ending vessels mean?
A You see the vessels here just stop abruptly. They don’t extent to the periphery. So this is one of the features of shaking injury on the angiogram. The vessels just stop short. And then further peripheral to that there’s no circulation. This is a consequence of the shaking trauma. As I mentioned earlier we don’t exactly know why this occurs. I have some hypothesis, this is a research topic of mine. But we do see this pattern with some regularity of non-filling of the circulation.
Q Okay.
A In the periphery.
Q Okay. Are we now ready to look at Naomi’s case and compare it to these images?
A Yeah. So I--I’ll just quickly show a couple more images. This is a optic atrophy, subretinal fibrous, and you can see here more clearly lack of circulation peripheral that circulation just stops and peripheral there’s vascular non-perfusion and areas of neovascularization. And then this is an example of a shaking case in the chronic situation. This child is now had a shaking injury at a few months of age and is now a teenager. And this is the type of footprint that the shaking trauma leads in the chronic situation as the child gets older. You can see there’s--this--all this pigment reaction, this--these are pigmentary changes. You can see severe optic atrophy. You can see subretinal fibrous. You see the pigment is clumped in some areas. And atrophic in others. In other words there’s clumping here and--in these areas and then loss of pigment of this area. And if you do an angiogram it reveals these--it reveals in more detail these areas of pigment clumping which is hyperfluorescence surrounded and then some areas of hyperfluorescence where the pigment is gone.
Q So is that eye that you showed us a moment ago is that permanently damaged?
A Yeah. This is, this child has been permanently damaged. And this is actually her better eye. This is a child that I see regularly in my, my clinic. And these are the changes one sees with chronic--you know chronic changes after a shaking injury. This child has barely count fingers vision is able to ambulate a room but has no ability to read.
Q Okay.
A Um, there’s more examples. More examples of pigment alternations that we’ve seen in the macular and the subretinal fibrotic changes. Now this is Naomi’s fluorescence angiogram. So Dr. Besirli did this study and it’s in contrast to--it’s a similar technique, the fluorescence angiogram to the cases that I just showed you. And unlike some of the cases I showed you where I waited for the blood to clear this, this angiogram was done in the acute setting. He had wanted to do it at one month of age but it was actually done immediately because she was having an MRI done at the same time so they just took advantage of the sit--of the anesthesia. So one can see here that there’s good profusion, there’s good filling of the retinal vasculature all the way out to the periphery. So you don’t see areas of non-perfusion in the periphery. And you don’t see any marked alternation to the pigment epithelium. You don’t see areas of pigment clumping. Or um, uh atrophy. So you don’t see zones of hyper and hyperfluorescence in the background. You do see these dark areas which we call block fluorescents that are due to the presence of blood. And here again you can distinguish between the location of the blood. These are preretinal hemorrhages that are covering the retinal circulation. And you don’t see the blood vessel underneath it whereas there’s deeper intraretinal hemorrhages here where you can see the circulation underlying it. Now subretinal hemorrhage would give a different angiographic pattern and I don’t particularly see subretinal hemorrhages in the fluorescence of either of these eyes. And in the periphery you see um, good filling all the way towards the edge of the retina, the ora serrata. So--
Q So based on these images let me, let me go back to your uh, your list of findings and just ask you which of these things are present on Naomi’s angiogram if you want to stick with the angiogram with this patient.
A Oh okay all right. Very good.
Q So um, the first thing you talked about was retina schisis. You see--in either this or the regular RetCam did you find any retina schisis?
A I don’t see any evidence of retina schisis based on the RetCam images or the fluorescence angiogram. And those examiners ophthalmologists who looked at Naomi did not, did not see retina schisis either.
Q What about macular hole?
A Macular hold was not present.
Q What about RPE degeneration?
A You see here the retinal pigment epithelium is intact. It has a uniform blush to the forseen. You see on the color photographs that there’s no areas of pigment atrophy or clumping so there is no retinal pigment epithelium degeneration.
Q What about fibrous--subretinal fibrous?
A Sub--that’s usually a chronic change as a result of subretinal hemorrhage. I don’t see any evidence of that on the pictures. We--these pictures were done in the acute settings, but we do have now a report months later showing by an exam that was done on Friday showing that she had normal retinal anatomy with no evidence of chronic changes such as subretinal fibrous.
Q Well and you’re referring to Naomi’s examination from last week?
A Yes.
Q Okay. So in regards to subretinal fibrous would you be able to see that on exam?
A Yes.
Q Well--
A For sure.
Q Okay. And that wasn’t noted in the report?
A That was not in the report.
Q What about vessel attenuation? Do you see any evidence of that?
A No these blood vessels look like--of normal caliber. The veinals are slightly more dilated than the arteries. This is a normal caliber distribution of blood vessels. You don’t see any dropout of the filling anywhere.
Q And what about optic atrophy? Do you see any any atrophy?
A The optic nerve looks pink and healthy and has good perfusion. So there’s no optic atrophy.
Q Okay. We’ve already talked about the hemorrhages themselves. I think vitreous avulsion was next on your list.
A Right. That’s something that would be hard to photograph. Its seen better clinically. But those who exam her found no evidence--they called I normal--they call the vitreous normal so I’m taking them at their word that there was no evidence of vitreous avulsion or degenerative changes.
Q Okay. And then the peripheral non-perfusion I think was the last thing on the list and it sounds like we’ve already talked about that. You don’t see that on angiogram?
A Yes. Correct.
Q Okay.
A There’s god profusion all the way to the periphery.
Q All right. So the things as listed I just went through are all things that would help you to narrow in on shaking like you’ve done hundreds of times before correct?
A Correct.
Q And what do you make of that fact that none of these things are present in Naomi’s case?
A Because none of these things are present we only have preretinal and intraretinal hemorrhage. And I gave you a list of potential causes of preretinal and intraretinal hemorrhages that include elevation of intracranial pressure. That include accidental trauma. That included reperfusion injury. That includes decompression. Sepsis. All of these things could cause this pattern of retinal hemorrhage that we see in Naomi. We don’t see any features that are specific to shaking injury. So it remains very low--shaking remains very low on my differential diagnosis in considering what caused these um, retinal hemorrhages. And certainly this pattern is not pathologic or diagnostic for shaking injury.
Q If instead of being an expert witness for the defense in this case you were seeing a case like this in your clinic or in the hospital setting in Los Angeles what would your input would be? Would it be different that it is now?
A Well I may consider other things for example genetic syndromes, leukemia. Um, other processes that can also cause retinal hemorrhages. The list that I gave you was fairly specific to Naomi based on what I saw in the history.
Q Now I want to zero in on just of couple of concepts. And I want to talk just about Naomi for a bit okay? So I noted in the report which is in evidence in the case, in this case that Dr. Besirli when he did the procedure under sedation indicated that the vessels were somewhat dilated and tortures?
A Yes.
Q Can you go back--earlier you gave us some images and show us--or maybe you can pick it up off the angiogram I don’t know--and show us what a tortuous--
A Well--
Q --(inaudible) looks like.
A There’s, there’s variability between individuals. So some individuals have more tortuous vessels than other. But what he’s talking about is these veins here have a little bit of, a little bit more dilation and a little bit more tortuosity than average. Especially in some of these areas.
Q So--but what is tortuosity? Is that like the corkscrew effect is that--
A Exactly. That means it’s kind of you know the vessels going back and forth in s serpentine fashion rather than being a straight vessel. So that finding um, is not something that we usually see in shaking injuries. Like I said it can be varying of normal. But it is also more common with vas--inclusive processes. So if you have um, you know occlusion of the venous drainage here due to a sinus thrombosis for example uh or a vein occlusion. One of the things you’d see besides retinal hemorrhages is you’d see--because of the back pressure you’d see the vessels become dilated and tortuous. It’s similar to what happens in patients who have, who have shunts in their arms for dialysis. They get, they get um, dilation and then tortuosity of the blood vessels.
Q When we go back to the concept of looking at a case like this and forming a differential diagnosis would it only be shaking or non-accidental trauma or would accidental trauma also be on your list?
A Well accidental trauma is definitely on the list. And statistically it’s more common than shaking injury because accidents happen to babies all the time. Even though only a minority of accidental head traumas will result in retinal hemorrhages and a majority of non-accidental trauma--traumas to the head will result in retinal hemorrhage because accidents are so prevalent in our society and fortunately shaking is not. So any case with retinal hemorrhages like this uh shaking--I’m sorry shaking is on the differential but non-accidental trauma is more common and non-accidental trauma can cause an acute rise in intracranial pressure by a subdural hematoma or by direct impact. And it cause a distribution of hemorrhages very similar to this.
Q So is there any rational thought process you could go through with the specific facts of Naomi Burns’ case to get to the point where you would say that this presentation of retinal hemorrhages is diagnostic for abuse?
A No I can’t. based on my experience with you know hundreds if not thousands of cases of, of pediatric and infantile retinal hemorrhages and the different clinical features of the retina that occurs in those different mechanisms I cannot group Naomi in the same group with all the patients that I have made the diagnosis of shaken baby syndrome with. Because we simply have--all we have here is some retinal and intraretinal hemorrhages. And no other features of shaken baby which I’ve tried to illuminate and show you examples of.
Q All right. One moment Doctor. So in terms of Naomi is today, I know you’ve read all of the medical records including her follow up eye examinations and specifically including the explanations and specifically including the examination that was done last Friday um, what are you--based on the information--well let me back up. You haven’t examined Naomi correct?
A No I have not.
Q Okay. But based on the examination--well I guess again let me back up. Is--when you look at the reports that you’ve seen in this case um, are you satisfied with the follow-up process that Naomi--Naomi’s gone through? I mean do you have a problem--
A Well uh, it--the--in the chart I assume--
MS. SEDORE: Judge I’m sorry I’m going to object. I’m not clear if he’s asking him as an ophthalmologist with the ophthalmological follow up or what question he’s actually asking.
MR. CRONKRIGHT: I’m happy to clarify your Honor.
THE COURT: All right go ahead. Rephrase.
BY MR. CRONKRIGHT:
Q So I mean I’m specifically focusing on the ophthalmology follow up that the records that you reviewed. And what I’m really trying to find out Doctor is does it look like the ordinary and appropriate follow up has occurred that--
A Well if Naomi did in fact have shaking injury and I believed that that’s what she had I would be following her more closely. I’d be concerned about secondary changes to the macular pigment epithelium and the circulation and the possibility of rebleeding and forming subretinal fibrous and traction. If I believed that shaking was really the mechanism--
Q And do you?
A --that play here. I do not believe that’s the case.
Q Okay.
A And the eye examines that were performed by the ophthalmologist on multiple occasion as recently as last Friday showed that she had normal pattern of visual behavior, normal fixation in following vision with both eyes, with no preference for fixture of one eye over the other. And has a completely normal looking dilated examination with healthy retinal vasculature um, healthy macular reflex. No vitreous degeneration. No pigmentary alterations. No scaring. And so uh, because of that the ophthalmologists are following her loosey. I think the recommended follow up period was eight months or something like that. So that’s appropriate when you believe that the child has a good prognosis and has no really permanent alternation. And um, so--and that’s what you would see with hemorrhages caused by some of these other mechanisms not by shaking.
Q Said another way you would expect that there be some permanent alternations in the eye if in fact Naomi had been subject--subjected to severe acceleration deceleration kind of event?
A Yes I would at least expect to see some optic atrophy at the very least and some pigment alternation in the retina which I do not see.
Q Thank you.
MR. CRONKRIGHT: Your Honor I turn the witness over for cross-examination.
THE COURT: All right. Mr. Brewer?
MR. BREWER: No questions your Honor.
THE COURT: All right. Mr. Garthoff.
MR. GARTHOFF: Thank you your Honor. Can we uh, bring the lights back up?
THE COURT: Sure.
MR. GARTHOFF: Thanks.
THE COURT: Want to hit the lights please? Thank you.
CROSS-EXAMINATION
BY MR. GARTHOFF:
Q Doctor you presented a sp--are you familiar with the National Child Abuse Defense and Resource Center?
A Uh yes.
Q Okay. How are you familiar with that?
A I was asked to give a lecture by one of their leaders this year.
Q Okay. And that was on the 17th of this month?
A That's correct.
Q Okay. Was any portion of this PowerPoint part of--I’m assuming you used a PowerPoint during that presentation.
A Yes I did.
Q Okay. Was any portion of this PowerPoint used in that PowerPoint?
A Uh--
MR. CRONKRIGHT: Objection to relevance. What difference does it make what PowerPoint he used in a conference?
THE COURT: Response?
MR. GARTHOFF: My thought is that his testimony has been constructed for this case and this case alone. I’m just curious if any of these other images were used any other time.
THE COURT: Well--
MR. CRONKRIGHT: I understood the objection. I just don’t know the relevance.
THE COURT: I’ll allow it. Go ahead.
THE WITNESS: Um, the--some of the images that were used for this presentation were also used the. I think the majority of the words slides have--are not from there although I can’t be sure of that.
BY MR. GARTHOFF:
Q And I mean the slide of the eye? I mean that’s a slide of an eye.
A Yeah that was not used then. You know I may have drawn from that talk and other talks. But this talk was specific for this patient.
Q Okay. Um, during that conference did you have conversations with the respondent father’s attorney about this case?
A Uh, not during the conference itself, but we did meet briefly outside of the conference proceedings.
Q Okay. Because he was--do you know if the respondent father’s attorney was also a speaker at that conference?
A He was speak--
MR. CRONKRIGHT: Objection to relevance.
MR. GARTHOFF: It goes to bias your Honor.
MR. CRONKRIGHT: That I’m biased being a speaker at the conference? What difference does that make?
MR. GARTHOFF: Well it goes to the witness’s bias if there is any.
MR. CRONKRIGHT: My speaking at a conference if I did that wouldn’t say anything about this witness’s bias. At least I can’t make that connection.
THE COURT: Why don’t the attorneys come on up?
VIDEO OPERATOR: Stay on the record?
THE COURT: Yes.
(At 11:34 a.m., bench conference begins)
MR. GARTHOFF: I didn’t know it would strike such a nerve.
THE COURT: Well let me ask, are you going to something like--what’s the relevance of Mr. Cronkright also speaking at the conference this goes to this witness’s--
MR. GARTHOFF: I just want to know--
THE COURT: --bias?
MR. GARTHOFF: I want to know how objective the witness is in his determination.
THE COURT: Do they--are you going to be--do you have some--do the parties go around presenting? I mean what--I guess I don’t want to say anything in front of the jury but what, what are you (inedible)?
MR. GARTHOFF: That that--
THE COURT: That that’s how they became affiliated?
MR. GARTHOFF: Yeah I don’t know if that’s how they did but I (inaudible) two weeks ago or a week and a half ago.
MR. CRONKRIGHT: Well I presented very similar stuff at the conference at Michigan SCAO training that I did for attorneys dealing with these kinds of cases. I mean I don’t understand why we’re talking to this witness about that at all. You know he can’t lay a foundation that we met at the conference so I just don’t know where this is going or what the suggestion is. If the suggestion is that I’m bias I supposed it’s probably true I am a defense attorney.
MS. SEDORE: Well it’s a defense conference that’s part of the point of what he’s making. It’s a defense conference.
MR. CRONKRIGHT: Everybody goes to conferences.
MS. SEDORE: It’s a defense conference. It wasn’t just a general conference.
THE COURT: That it goes--how is going--can--connect dots for me how is whether Mr. Cronkright spoke at the same conference go to this bias?
MR. GARTHOFF: Just that (inaudible) it’s a defense counsel. It’s (inaudible). It’s not an objective conference.
MR. CRONKRIGHT: Well--
MR. GARTHOFF: (Inaudible) almost lunch time let’s just--
THE COURT: All right.
MR. GARTHOFF: --keep going.
(At 11:36 a.m., bench conference ends)
THE COURT: Okay. Go ahead Mr. Garthoff. Let’s go ahead and move on.
MR. GARTHOFF: Thank you your Honor.
BY MR. GARTHOFF:
Q The examples that you were provided, proving to us on the slides um, Naomi did not have surgery correct?
A Um--
Q Eye surgery?
A Not--no she did not.
Q Okay. Are the examples that you provided some of the individuals were different in--were different ages than what Naomi was during her exams isn’t that true?
A Right. Some of them were in the chronic situation after the blood has cleared which I think is very helpful diagnostically to determine ideology.
Q All right. And the patients that--I’m assuming you have personal knowledge of the patients’ whose retinas we saw?
A Yes.
Q Is that--that’s fair okay. Um, they were of a different genetic makeup of Naomi?
A What do you mean by genetic makeup?
Q They have the same um--
A No two individuals are genetically same.
Q Okay.
A Unless they are identical twins.
Q Is there a different social history for the individuals whose eyes we saw in Naomi’s--
A Yeah every one of these cases has specific circumstances and has specific history yes.
Q Okay. And I’m assuming that would also go to a different medical history as well?
A Yes.
Q And different quality of care?
A Quality um, that’s kind of subjective comment. I can’t--I can’t--I mean certain patients had more intense treatment than others. I don’t regularly comment on quality of care.
Q Okay. I certainly don’t want you to answer something that you can’t answer.
A Sure.
Q Um, the--you’re talking about acceleration deceleration, a fall that can be acceleration deceleration correct?
A That's correct.
Q Okay. And--
A I was making a distinction between that and the shaking injury.
Q Right. Right. And a fall you said could be non-accidental or it could be accidental correct?
A Correct.
Q And if it was non-accidental that would be indicative of abuse isn’t that true?
A Well non-accidental trauma is sort by definition abuse.
Q And the fact that Naomi’s eye injuries seem to have healed that’s a good thing right?
A Well I didn’t see eye injuries that heal. For example subretinal fibrous is a healing (indecipherable) injury. That’s what that process is.
Q Okay.
A That was not present in Naomi. She just had retinal hemorrhages that cleared with time. If you want to use the word healing for that you can. That’s a colloquial sort of term. But um, she basically developed developed retinal hemorrhages and the hemorrhages went away. They were reabsorbed and it left nothing in terms of permanent damage that was at least visible or detectable by the ophthalmologists taking care of her or the images that were taken of her.
Q Okay. Does that mean that she’ll never develop any--I’m trying to find the right word--any eye problems as a result of the retinal hemorrhages that she did have?
A Well we can never say never in this field. But um, you know given that multiple exams have shown normal visual function um, absence of hemorrhage, normal antimony, um, that you know 99.9 percent tells me that she’s clinically normal and expected to have normal vision and function throughout the rest of her life. Now you could if you were so inclined put her through a certain battery of physiologic testing, electrophysiology, um, you know doing--you know you could do color discrimination you could endless number of tests looking for subtle irregularities and you might find that even in a completely normal person who has never had any retinal hemorrhage. Um, but short of that as far as a clinician in this are can tell she’s normal.
Q Okay. She’s normal--
A At this present time--
Q --at this present time--
A --and we’d expect it to stay that way throughout her life. Barring any you know any other problems that she may encounter.
Q Right. Okay. Thank you.
A Thank you.
THE COURT: All right. Ms. Sedore.
CROSS-EXAMINATION
BY MS. SEDORE:
Q All right. Doctor how much are you being paid for this review and testimony?
A Uh my usual um, fee to do cases like this is $500 an hour.
Q How much are you being paid for this case?
A I don’t know because I haven’t seen the bill generation. I don’t know exactly but that’s my usual fee. It’s never--I’ve never been paid more than about $12,000 for any case. Which--
Q Twelve thousand dollars.
A For any, for any case regardless of how long it took.
Q So you’re saying $500 per hour and is that just of what your view in your testimony or is that of your time?
A Uh that’s my review and testimony.
Q Okay. And where you--did you have to pay for the plane ticket here?
A No.
Q Did you have to pay to stay in a hotel here?
A No.
Q Do you get compensated for meals?
A Um, sometimes.
Q Do you know if you’re getting compensated for meals in this case?
A I actually don’t. I actually don’t.
Q Okay. How many times have you testified for either the prosecution or the petitioner on an abuse neglect type case in court as an expert?
A Probably a hundred times or so.
Q And how many times have you testified for the respondents or defense in such a case?
A It was my approximation that 60 to 70 percent of the time I was appearing on behalf of the defense.
Q So 60 to 70 percent of the time for defense?’
A Correct.
Q And (inaudible) for the prosecution is that what you’re saying, and that’s testifying as an expert?
A Yes.
Q All right. And uh, the conference that you just present at was a conference about defense of child abuse cases is that correct?
A That's correct.
Q And other than ophthalmology you have no other board certifications is that correct?
A That's correct.
Q Okay. You’re not certified in radiology?
A No.
Q And you’re not certified in hematology?
A Nothing but ophthalmology.
Q Okay. In your report in this matter you mentioned social records that you reviewed regarding Naomi’s case. What is that reference to?
A Um, I think it references social worker notes and may have referenced interviews with the family or social records that are included as part of the medical history.
Q And what training do you have that allows that to be part of your opinion?
A Well in medical school the social history is one of the key fundamental parts of any history and physical--
Q Why is that?
A Why is that? Because it’s relevant to the care--the diagnosis and management of any patient.
Q Especially in an infant right? Because an infant can’t talk correct?
A Well I don’t know especially in infants. Usually an infant has a smaller social history than an adult. Usually it’s not associated with smoking and past criminal behavior and so forth. So--
Q But their parents might be right?
A Yes. Yes.
Q And that would be important to you right?
A Um, rephrase the question I’m sorry.
Q Wouldn’t it be important in an infant as a patient to look at the social history of the parents or the caregivers?
A To a certain extent yes.
Q So which retinal disease does Naomi have?
A Well I think I gave you a differential diagnosis. A weighted differential diagnosis with what I thought was the most likely, the most likely one being retinal hemorrhages caused by an acute elevation in your cranial pressure.
Q An acute increase in intracranial pressure. Where does that come from in Naomi? What’s that caused by?
A Well she had a baseline and an enlarged head circumference. And she had um, the evaluation of intracranial hemorrhage. And so--
Q Let’s back up.
A --her--
MR. CRONKRIGHT: Well she needs to answer the question without interruption.
MS. SEDORE: Excuse me I don’t think--
THE COURT: You have an objection?
MS. SEDORE: All right. Never mind I’ll let him finish.
MR. CRONKRIGHT: My objection was she shouldn’t interrupt the witness in the middle of his answer. That’s my objection.
THE COURT: All right. Let him--
THE WITNESS: So she had--
THE COURT: --finish.
THE WITNESS: She had um, evidence of old intracranial hemorrhage and fresh intracranial hemorrhage so those are space occupying hemorrhages that raise the pressure.
BY MS. SEDORE:
Q So you’re talking about head circumference. What records did you review that you make that finding?
A Um, well I don’t recall specifically where in the medical records but I think it was stated more than once that head circumference had grown fairly rapidly in the first weeks of life.
Q I need more specific--do you have a specific timeline you’re referring to or what doctor said that in what record?
A I would have to review the whole record again to get that specific information.
Q And that’s really important to your first differential diagnosis isn’t it?
A Well who made the diagnosis at what point in time is not important--
Q No I’m saying--
A --to establish that the fact that she had you know enlarged head circumference at the time of admission. So you know the practitioners taking care of her when she was admitted found that she had an enlarged head circumference.
Q And you don’t know which doctors were--or what--
A I can’t name any of the doctors. I mean I don’t--
Q Do you even know what hospital?
A University of Michigan Mott Children’s Hospital. That I know.
Q But not St. Joe right?
A Well St. Joe’s as well.
Q So now you know where these are at? I’m trying to find out where you’re referring to.
A Well I do know where they are because I actually went to medical school right here at the University of Michigan.
Q No I don’t mean where the hospitals are. I mean where in the records--
A Oh um, no. you know I didn’t memorize the records. The records are you know very thick volume. Um, and no I don’t know exactly--I can’t point to a page number or doctors’ name.
Q You were very careful in your testimony to say that you didn’t see any--in Naomi’s retinal scans anything that could definitely be a subretinal hemorrhage.
A Yeah as I mentioned sometimes as blood clears subretinal hemorrhage because it clears more slowly becomes apparent. And sometimes you have preretinal hemorrhages that are covering subretinal hemorrhages so I’m very careful not to make assentation’s that you know might not be right. As the blood clears one can look for subretinal hemorrhages but I didn’t do that. But the ophthalmologists taking care of her did. And as recently as Friday they looked at her carefully and saw that there was no evidence of pigment reaction which you’d expect to see if subretinal hemorrhage was present.
Q Do you have to have evidence later of their something there for there to be subretinal hemorrhage? Is a subretinal hemorrhage every not leave a trace later?
A Uh rarely.
Q Possibly though?
A Everything is possible. I don’t recall case, but I think--I mean I wouldn’t say it’s impossible.
Q And you said that retinal hemorrhages you don’t call it healing you call it resolving right? They do resolve?
A Well yeah they get reabsorbed.
Q Do they all resolve?
A Does, does--a subretinal hemorrhage can or intraretinal hemorrhage can get reabsorbed. It can cause reactive changes like fibrosis like I showed you like pigment epithelium alterations. Those are the types of pattern of change that can occur.
Q But it doesn’t have to occur is that right?
A I don’t understand your question.
Q If a subretinal hemorrhage is present and it resolves does it have to leave a trace?
A In my clinical experience it does, but I can never say always.
Q Okay. And in um, when these retinal hemorrhages resolve does it change the the appearance of the retinal scans?
A Yes.
Q As they resolve it looks different right?
A Well as as the hemorrhage gets reabsorbed the skin looks pretty much normal after that. Or--I mean if there’s reactive changes then you would see that. If there is none then you would see a normal scan.
Q So in Naomi’s case the retinal scan imaging that you saw was from a specific date. Would it possibly have looked different if it was imaged three days before that?
A Um, three days before this?
Q Yes.
A It could’ve looked different. I mean--
Q How about a week before?
A I don’t know when these hemorrhages appeared so um, I don’t know if these hemorrhages were a week old or a day old. I can’t say. If the hemorrhages for example were caused by the lumbar puncture and the sudden decompression phenomena then they probably wouldn’t have been there prior to the 25th for example. I don’t know. We only have certain points of time where we have information. And we don’t have a continuous monitor of her retinal status.
Q Right. And in this case the caregivers are the only people that can give you a history of the child outside of the hospital correct?
A Um, anyone who had interaction with her could’ve given the history yeah. I don’t understand the question really.
Q Never mind. I’ll move on. These retinal hemorrhages you had testified and I was little confused because it seemed to be a contradictory. You said that the, the non-subretinal, so the intraretinal and the--what’s the other ones--
A Preretinal.
Q Preretinal they resolve quickly within two weeks. You said that right?
A In the majority of cases they can last, they can last for months. And--
Q And how is this--what--you were talking about you and your practice had seen them last four months?
A Yes.
Q How many patients was that?
A Um, well I have--all I can tell you is that I have a series of patients that I’ve operated on for non-clearing hemorrhages that were related to delivery. Now you know what percentage of the patients who have a difficult delivery end up in that situation I don’t know. Because these patients are referred to me after other ophthalmologists have seen them and the blood hasn’t cleared.
Q Do those patients with the long term lasting retinal hemorrhages have other medical conditions?
A Not necessarily.
Q Do--okay.
A I mean some of them--
Q You’re speaking--
A --well I can’t generalize about all the patients. I mean some of them will have other medical problems. They might have a persistent ductus arteriosus for example. They may have colic. They may have a rash. I don’t know. But I mean there wasn’t else that explained the retinal hemorrhages in those cases if that’s what you’re asking.
Q How many patients have you seen that have the retinal hemorrhages that you say are from birth and last many months?
A In my practice over the past ten years I’ve probably seen 30 such cases.
Q And this is your exclusive practice right? You do retinal ophthalmology? That’s your focus.
A I’m a retina surgeon with a focus on pediatric--
Q Right so--
A --retina.
Q --it’s not like you just see pediatric patients. You see people with retinal problems correct?
A That’s the majority of my practice.
Q And in ten years you’ve seen 30 cases that you would say are that?
A Yes.
Q Okay. And you can’t say what percentage that is right of your patients?
A I’m sorry what, what are you asking?
Q Can you tell us what percentage of your overall patients that that is?
A Of all the patients that I’ve seen with all different diseases what percentages of them are babies that had difficult delivers and retinal hemorrhages that last more than three months? Is that the question?
Q Yeah.
A Um, that’s a very--I mean probably half a percent. One percent.
Q You talk about shaking only in terms of trauma, non-accidental trauma. Are there other mechanisms of non-accidental trauma that might cause retinal hemorrhaging?
A Yes. Like for example a blunt head injury as in a fall or something--someone striking something blunt could cause a subdural hematoma and a retinal hemorrhages. But I have no way medically of distinguishing those hemorrhages and saying whether it’s non-accidental or non-accidental. Those hemorrhages look the same. So it’s the same mechanism from a medical prospective.
Q But in those cases there’s not the angular acceleration deceleration issue is there?
A In those cases the mechanism of hemorrhage is due to an acute rise in intracranial pressure. It’s not due to the sheering angular deceleration acceleration stress that causes those specific retinal changes that I mentioned to you. That list of multiple things.
Q Right. So that’s what I’m saying. Other than shaking there are other non-accidental traumas that can cause retinal hemorrhages right? That don’t have the same issues with this angular and the sheering and all of that that you’ve talked about?
A Yes you are correct. And I have no way of detecting whether it’s accidental or not in those cases.
Q And your differential diagnosis here were based on the retinal cam only?
A It was based on reviewing that thick volume of records and um, looking at the RetCam pictures and the angiogram. Looking at the clinical notes.
Q Well I thought that you testified earlier that this was based--your differential diagnosis was based on the retinal cam scans, but it’s not just based on the retinal cam. You’re saying that’s based on everything that you’ve reviewed in this case?
A Yeah I mean I included the medical history. For example um, you know leukemia is one source of retinal hemorrhages. They can look exactly like Naomi. In fact I have a slide of such case. Um, but I know for a fact she didn’t have leukemia because her blood smear was normal. So that was thrown out. So I relied on the medical history for that. There were a bunch of other things that were thrown out because of the medical history.
Q Okay. Now if anyone gets a lumbar puncture are they gonna get retinal hematoma--or retinal hemorrhaging? Sorry.
A Rephrase the question.
Q If any person gets a lumbar puncture are they going to suffer retinal hemorrhaging?
A Um, if they--in the majority of cases no, but if they have elevated intracranial pressure and they get decompression some of those cases will result in retinal hemorrhage.
Q Do you know what percent?
A I don’t think anyone knows.
Q Did you see any pictures from Naomi’s first ophthalmological exam at her bedside?
A Uh--
MR. CRONKRIGHT: Objection. It’s the form of the question. The question doesn’t have a good faith basis. There were no photographs from the first bedside exam.
THE WITNESS: Yeah that’s what I was gonna say.
MS. SEDORE: Well then he can answer that. I’m not trying to trick him. I’m asking him a question.
MR. CRONKRIGHT: Well that’s not--
THE COURT: You’re asking him if he’s reviewed any?
MS. SEDORE: Yes.
THE WITNESS: Well since the--
THE COURT: Hold on. Hold on Doctor.
MR. CRONKRIGHT: There has to be a good faith basis for asking a question like that. She knows that there are no photographs.
MS. SEDORE: I think he’s completely misinterpreting my question. I will rephrase it.
THE COURT: All right rephrase it.
BY MS. SEDORE:
Q Were there any pictures from the bedside ophthalmological exam on Naomi?
A Not to my knowledge.
Q Because you didn’t review any correct? You didn’t see any right?
A Well there was nothing in the records documenting that pictures were taken. There was no mention of them in the chart.
Q Right.
A And none were provided to me.
Q Did you read the report from the bedside ophthalmological examination?
A Yes.
Q Didn’t it talk about diffuse retinal hemorrhaging?
A Um, yes.
Q Multilayered?
A Uh those words were used yes.
Q Did it talk about the 360 idea of--or the peripheral all the way through the peripheral up to the ora serrata?
A Um, it did. But deference was made to Dr. Besirli who’s the local expert in determining that. So I relied more on his examination than on that one.
Q And what was different about Dr. Besirli’s examination than that one?
A Well it was more detailed. It was done under anesthesia. And it included RetCam images. It included skull depression. It included fluorescein angiography that was much more informative and done in a way that a retina surgeon would do it as opposed to the bedside examination with a child awake by a non-retinal specialist. So--
Q So you--in your experience you would sedate a patient at this age to try and get a good retinal scan correct?
A No I often don’t. I wouldn’t--
Q At this age 11 weeks?
A Yes even in a newborn. I do RetCam images in newborns all the time documenting pathologies. Sedation is not required.
Q Well why did you just say that was part of what you take as Dr. Besirli’s expertise? You just listed that.
A No I said that the examination that he did--
Q Yes.
A --was under sedation. So--
Q Correct. That’s a good thing right?
A Well it may--it’s not necessarily a good thing for baby because they’re under sedation. Is it--
Q Are you a pediatric specialist sir?
A Wait could you let me finish one question before answering next--asking the next one? It’s just--
Q Certainly Doctor.
A --basic respect.
THE COURT: Go ahead. Go ahead.
THE WITNESS: So most of the exams that I do are not associated with sedation but he--the baby was being sedated for another procedure so he took advantage of that by doing the exam at that time. So he was able to do more--a lot more than what was done at the bedside examination which was only a day before.
BY MS. SEDORE:
Q Okay. My question to you is there something negative as far as ophthalmological exam and findings about sedating a patient to do the RetCam exams?
A No the only negative thing is the potential risk to the baby from the sedation, the risk of infection, even death um, from sedating a child. But that’s--there’s nothing risky from an ophthalmologic viewpoint about it.
Q When you had--you were showing us the scan from the patient you had that had um, the retinal hemorrhaging lasting from birth trauma up to four months. What kind of birth trauma did that child have?
A Vacuum extraction and difficult delivery.
Q Can you give us more detail please?
A Well I mean the, the labor lasted multiple hours. Um, and there were you know more than one attempt at vacuum extracting the baby. Um, that’s about as much as I recall right now.
Q So you don’t know if the baby had a misinformed head when it actually came out due to the vacuum extradition or anything like that?
A The head was not misinformed--I mean I still see that child, the head is normal.
Q Well now the head is normal. I’m talking about at birth.
A Um, whether the misinformed at birth I didn’t--I would’ve remembered having read that. I never read that.
Q But all you can tell us otherwise is that it was a long birth and there was several attempts at vacuum assistance?
A Yes. Vacuum extraction.
Q Pardon me vacuum extraction.
A So some of your--
THE COURT: I’m going to go ahead and interrupt you there if that’s all right.
MS. SEDORE: Okay.
THE COURT: I’m going to go ahead and interrupt you there for--to break for lunch. So--because we’re past the new hour here I want to give the jurors enough of a break. Ladies and gentlemen I’m going to go ahead and let you go to lunch. You’re free to go about your business over the lunch hour. We’ll see you back here ready to go at 1:30. Okay. Remember not to talk about the case over the lunch hour. All right. You’re free to go. Enjoy your lunch.
DEPUTY DEGRUSH: All rise.
(At 12:03 p.m., jury leaves courtroom)
THE COURT: All right. Jury is no longer present. We’ll go ahead and break for lunch. We’ll be back here ready to go at 1:30.
MR. GARTHOFF: Thank you Judge.
MR. BREWER: Thank you.
MR. CRONKRIGHT: Thank you your Honor.
(At 12:04 p.m., court recess)
(At 1:34 p.m., court reconvenes)
VIDEO OPERATOR: Recalling the Naomi Burns matter file number 14-14708-NA.
THE COURT: All right. Good afternoon. Appearances please.
MS. SEDORE: Betsy Geyer Sedore on behalf of the People with Derek Schultz from CPS.
MR. GARTHOFF: Alexander Garthoff on LGAL for the minor child.
MR. CRONKRIGHT: Michael Cronkright your Honor appearing with and on behalf of Joshua Burns.
MR. BREWER: Good afternoon. Dennis Brewer on behalf of and with Brenda Burns.
THE COURT: All right. Thank you. Good afternoon. Okay so are we ready to bring the jury in?
MR. CRONKRIGHT: Yes your Honor.
MR. GARTHOFF: Yes.
THE COURT: All right. Let’s bring them in.
DEPUTY KERR: All rise.
(At 1:35 p.m., jury enters courtroom)
THE COURT: All right. Welcome back. Good afternoon. Please be seated. For the record the jury is now present here in the courtroom. We have the doctor back up on the witness stand. Sir I would remind you that you’re still under oath all right?
THE WITNESS: Yes your Honor.
THE COURT: I think we left Ms. Sedore was on cross. Go ahead.
MS. SEDORE: Thank you.
BY MS. SEDORE:
Q Doctor of the differential diagnoses that you did make in this case um, let’s just--actually--the acute rise of intracranial pressure. Is that something that is recurrent, that would happen again?
A It could if there were multiple episodes where the pressure spiked up. It could happen a second time.
Q What could cause the pressure to spike up in your opinion?
A Well um, any um, sudden space occupying lesion such as a hemorrhage or rupture of an aneurysm, a trauma uh with impact that causes the pressure to rise. Any of those, anything where there’s--the space is taken up intracranial that cause a rise in pressure could do that.
Q Okay. And in this case before Naomi had her first lumbar puncture wasn’t an MRI done to rule out intracranial pressure increase?
A Well um, the MRI cannot rule out--the MRI does not measure intracranial pressure so it doesn’t uh, completely rule it out. And--
Q Does it help to rule it out?
A I mean it did show that there was some large spaces around the brain. Possibly some chronic hemorrhage, possibly some acute hemorrhage superimposed on that. Um, it doesn’t preclude the possibility that the pressure in the intracranial either rose either before that MRI or after. So it’s not, it’s not really helpful in me deciding whether there was pressure acutely in her case.
Q What would’ve been helpful?
A Uh well things that aren’t practical. I mean if I had some type of pressure recording of intracranial space you know throughout--you know from birth to the point she was discharged I might be able to, to say something more.
Q Okay. How about your second in the list, decompression hemorrhage is that recurrent? Is that the kind of thing that would happen again?
A Uh if the circumstances were recreated then it could happen--there’s nothing to say that it couldn’t happen a second time.
Q And what circumstances do you think in your opinion crated that?
A Well if you have an elevated intracranial pressure and you suddenly decompress it as with a procedure that could result in that type of hemorrhage.
Q But you don’t really know how that would’ve happened here?
A Well in this case she had lumbar puncture procedures.
Q But you don’t know if she had increased intracranial pressure before that do you?
A Well she had volume, a volume occupying lesion so I pressure-you know as far as--as much as I can medically tell she had, she had acute neurologic symptoms. She had problems with mentation, problems with respiratory status, seizures, vomiting, these are all clinical signs of elevating intracranial pressure in a baby. So there was sufficient clinical evidence that there was um, a sudden change in her intracranial pressure and there was a space occupying lesion on the scan. So if you just put the story together what’s what was going on?
Q But you’re not a radiologist right?
A No but I can read the report as easy as any other physician.
Q So from reading the report is where you’re saying all these things from?
A Well I’ve looked at the report as well. But I don’t think there’s--
Q Did someone diagnosis Naomi as having increased intracranial pressure Doctor?
A Well she had symptoms of it. They--the diagnosis that was made was non-accidental trauma. But she had symptoms--
Q My question--I’m sorry but please answer my question. Did a doctor diagnosis her with increased intracranial pressure?
A Um, I don’t know. There were--I’d have to really look at all the records to see what all the diagnoses that were there. I don’t know if that was made or not.
Q Speaking of looking at the records. How many hours did you spend reviewing records and preparing your report for this case?
A Um, I have to double check but probably something like 15 hours.
Q How about venous sinus occlusion is that recurrent? Is that something that would happen again?
A Uh it could. It’s not usual for that to happen a second time. But it’s possible. She had thrombocytosis so that made her at risk for it. Um, so it could also be you know multiple venous occlusions. You know progressing in multiple locations.
Q And where besides thrombocytosis is it that you see any evidence of venous sinus occlusion in Naomi’s case?
A Well um, I didn’t see--I personally did not see evidence of it. I read about that possibility somewhere amongst her records. I know that she did have an evaluated platelet count and there was um, you know there was a consideration of that being a possibility. I don’t, I don’t know if it was positively diagnosed. I think a neuroradiologist or neurologist could speak to that more than I could.
Q All right to your knowledge she wasn’t diagnosed with that correct?
A To my knowledge it was part of the differential diagnosis just like I’m posing a list of differential diagnoses here.
Q To rule it out correct? From U of M. I’m speaking of her treatment not what your report is.
A Right. To my knowledge it was part of her differential diagnosis. I don’t know if it was conclusively ruled in or not but it was definitely considered.
Q And how about reperfusion--re--I don’t even know what that says. I’m sorry reperfusion something or other was number five.
A Okay.
Q What was your fifth differential diagnosis?
A Reperfusion hemorrhage.
Q Hemorrhage. Thank you. Sorry I can’t read my own handwriting. So is that something that would be recurrent?
A It could be if you had multiple episodes of lack of provision and reestablishment of perfusion it could.
Q And you said that’s based something on blood pressure drops and you I think testified that you thought she was, she had that some point that you read in the records?
A If there’s a lack of circulation and then the circulation is reestablished uh that could um, cause that type of mechanism. I do recall that um, she was you know intubated at one point because they were concerned about low circulation and the possibility of giving pressers and so forth. So she was critically ill at some point.
Q I’m so--I’m confused. You said she as intubated because of her blood pressure?
A Um, I read in the emergency room notes that they were concerned how critically ill she was and whether she as getting adequate perfusion and that was one of the reasons why they wanted to protect her airway.
Q For sepsis number six you had stated that that could be a possible cause of these retinal hemorrhages, it can mimic it right?
A Yes.
Q If the child was given antibiotics wouldn’t that take care of the sepsis?
A Uh not necessarily.
Q Could it?
A Uh I mean it wouldn’t make the hemorrhages disappear. If she was septic at some point in her course that ca--that certainly could have caused the retinal hemorrhages. Uh sepsis doesn’t just immediately go away once antibiotics are given. It takes time. The hemorrhages once they’re there they’re there. So I don’t really understand your question.
Q You said that sepsis if I understand your testimony correctly, sepsis is due to bacterial infection is that correct?
A That’s what sepsis means yes.
Q Okay. So giving a child antibiotics wouldn’t have any effect on that?
A That’s the treatment for sepsis.
Q Correct. So you’re just saying having sepsis causes retinal hemorrhages? Is that what you’re saying?
A Yeah that’s a standard--everyone in this field knows that sepsis can cause retinal hemorrhages yes.
Q Can cause retinal hemorrhages. How often?
A It’s a cause of retinal hemorrhage.
Q How often?
A I don’t have accurate statistics to say what percentage of sepsis cases have retinal hemorrhages. I don’t think that’s known.
Q This Valsalva thing that you spoke of with the rise and intrathoracic pressure from screaming is that what your testimony was? In an infant.
A It can cause--it can be caused by any sudden elevation in intrathoracic pressure.
Q And that can cause retinal hemorrhaging?
A Yes.
Q And that’s a child screaming?
A In an extreme case yes.
Q When you say extreme please define what you mean?
A Um, I just mean a lot of heaving screaming and bearing down. Uh so I have seen, I have seen children develop you know even in the nursery develop retinal hemorrhages from that type of mechanism. A child is inconsolable where one day I’ve done an exam and there were no retinal hemorrhages and then I come back and find that they’ve developed. And the only significant history is the child’s been screaming and inconsolable so that is--
Q (Inaudible). Go ahead sir.
A That is a potential cause.
Q Was there any evidence in Naomi’s records of her ever being inconsolable?
A Uh, not that I read.
Q And there was no CPR here correct?
A Correct.
Q And Naomi hadn’t had any surgery had she?
A Uh she had procedures like lumbar puncture but no no surgical procedures that I’m aware of.
Q Now when you were showing the slides and you were comparing--I believe it was one of your later slides. One of your patients that you had treated. I think it was toward the end and you were looking at the retinal hemorrhages. I believe you testified that those are basically the same as Naomi’s and they are to the periphery? But earlier you testified that Naomi’s were not to the periphery.
A Um, no--what I--this is a picture of Naomi right here. What I said, what I said was that her hemorrhages are more concentrated centrally than peripherally. And you know from the picture that I tried to show you a couple pictures of the periphery very early on in the talk--I can go back to them if you’d like. Um it was clear that there were some hemorrhages in the periphery but not as dense as in the center.
Q So--
A And I also mentioned that you know these are not hard and fast in terms of correlating the distribution of the hemorrhage with a particular disease process. But you know my, my knowledge is that with shaking injury the hemorrhages tend to be equally severe in the peripheries in the center.
Q But you would agree that there are hemorrhages in the peripheral correct?
A There are a few hemorrhages in the periphery. What I said is there’s a modest amount of hemorrhage more concentrated centrally than peripherally.
Q You also testified that you believe these--Naomi’s retinal hemorrhages were what you would call moderate.
A Yes.
Q Would they have looked--could they have looked severe if this was done a few weeks earlier?
A It’s possible if she had them a few weeks earlier and some of them have cleared since then it’s possible that they would’ve been more severe earlier.
Q Okay. So all you can say is from this one slice in time--
A That’s all the information that I have.
Q Right. Okay. That’s fair. And you never examined Naomi? Right?
A No in person no.
Q Did you ever examine her in some other way?
A Well I’ve examined her imagines. I’ve reviewed her history. But I’ve never met her.
Q And you had your comparison of a normal retina. Can you show us that one again?
A Certainly.
Q I’m sorry can you dim the lights just a little bit so the jury can see a little better? Sorry. Thank you. So in this, this is a normal infant eye right is that correct?
A That's correct.
Q Okay. And so I’m looking at the veins and the arteries that go out from the optic nerve here. They seem to be fairly straight. They don’t wobble the serpentine torsion type thing you were talking about with Naomi.
A Correct.
Q Is that correct?
A Correct.
Q Okay. Can we go to a slide of Naomi’s?
A Yes.
Q So with all those kind of hooks and (indecipherable) the veins are going out that’s not standard is that correct?
A Well what I mentioned is that there’s individual variations on that. But um, she does have some increased tortuosity over what I would describe as standard. It’s possible this could be a variation of normal. It’s also possible this could be reflective of some vascular inclusive process which has caused an elevation of intravenous pressure which is usually what causes this dilation in tortuosity. I also mentioned that this venous and tortuosity is not something that one finds in shaking trauma. It’s more compatible with a intravascular process where the pressure is elevated causing this type of vascular change. If anything in a shaking injury the vessels becomes more narrow over time rather than dilated.
Q You said that these could be from the um--(inaudible)--one moment. The venous and sinus occlusion could cause this is that what you said?
A Well venous occlusive disease is known to cause retinal vascular dilatation and tortuosity.
Q Okay. So that’s--
A And she was at risk for venous occlusive disease.
Q Why is that?
A Because she had a thrombocytosis and she was dehydrated. So um, you know--and there was--and she also had you know an expanded um, head circumference--
Q That’s--
A --these are all--
Q Go ahead.
A --risk factors for sinus thrombosis or venous thrombosis.
Q But you saw no actual evidence of sinus or venous thrombosis in her records other than what you just said?
A Well I think you just asked about that and I told you that I read about it and it was considered part of the differential diagnosis.
Q But that you don’t--
A But I don’t believe that it was definitively ruled in or out, but I would defer to a neuroradiologist about that.
Q Okay. You keep talking about the head circumference issue. What was the phrase that you just used? Increased?
A Yes.
Q What do you mean by increased head circumference?
A Well it was significantly greater than average. And it, it expanded relatively quickly over the first weeks of life.
Q And what records were you looking were you saw that?
A Um, records from her pediatrician the notes from both hospitals.
Q You had said in the first weeks of life is that correct?
A Yes.
Q So if she was born on January 7th when are you talking about?
A I don’t remember the exact dates, but just within the first weeks of life.
Q And when you say increased what do you mean? Bigger than normal, but that’s--is there a percentage that you look at? How are you talking about that?
A Well there’s a normal growth curve for body weight, head circumference in an infant. So I don’t remember the exact numbers for her. But let’s say you know at birth her head circumference was 50 percent of normal. Well you would expect someone at 50 percent of normal to stay, stay on the curve. There’s usually like a curve that escalates. And you expect them to stay you know somewhere within a standard deviation of normal of 50 percent as, as time goes on. If you see something where the child goes from 50 percent one week to 75 percent next week to 98 percent next week to 99 percent the next week you know that that’s not normal and that suggests that there’s some evolving intracranial process that’s associated with hemorrhage or volume expansion.
Q So what about your background allows you to testify about that? Are you a neurologist?
A Well I just told you what I, the information that I got from her medical records--
Q Are you giving an opinion as to her head circumference Doctor is what I’m asking you?
A Well what I’m telling you is that I read in the notes that her head circumference was elevated.
Q But you don’t know where you read that in the notes correct?
A I don’t--I can’t give you a particular reference. I mean if you wanted me to spend the time and review the notes all over again I could--I’m certain I could find that and indicate exactly where I got it from, but I did get that information from her medical history.
Q But you don’t know when in this whole process you got that information for her treatment right?
A When in this whole process--I don’t understand what--
Q Do you know--
A --you mean.
Q --where in her treatment history you claim that there is increased head circumference?
A I got it from reviewing the records.
Q Right. You don’t know what records?
A Well the records in her first weeks of life and and that information was reviewed again when she presented to the hospital. It’s part of the past medical history.
Q Well have you reviewed the recently Doctor?
A Um, I reviewed them when I was asked to review them. I don’t remember how long ago that was.
Q Is it your claim Doctor that when she presented at the ER at St. Joe's on 3-16 that they said that she had an increased head circumference?
A I don’t know exactly what, when that determination was made by which doctor.
Q So how are you basing your differential diagnosis on it?
A I’m not basing my differential diagnosis on her head circumference.
Q It’s part of your consideration--
A No I--
Q --is it not?
A She--it’s part of my consideration that she had retinal hemorrhages that could be attributable to a rise in intracranial pressure. Now that rise in intracranial pressure could be possible related to the high head circumference.
Q That you don’t know where it is. Okay. Does a facial bruising on an infant have anything to do with your diagnosis? Does that enter into your diagnosis in any way, shape, or form?
A No.
Q Why is that?
A Because I don’t know how it would relate to the retinal hemorrhages.
Q Injury to a child’s face has nothing to with the possibility of retinal hemorrhages?
A Uh, one can make hypotheses but it’s not a direct relationship between a bruise on the face and--
Q Would it matter--
A If you’re, if you’re suggesting that she had history of trauma that caused a bruise on the face and then also caused--a blunt injury to the head that caused intracranial pressurized or subdural hematoma it’s possible.
Q Did you read in the records about the description of her alleged fall off her dad’s lap?
A I did read that.
Q Is it your opinion that that caused these retinal hemorrhages?
A No.
Q Do you think those could have caused these retinal hemorrhages?
A Well um, you could um, look at it this way. If she had a preexisting subdural hematoma which there’s a high chance that she did given her birth history and her large head circumference that would’ve made her at higher risk for repeat bleeding with incidental trauma, and if this episode where she fell and was caught by the father qualifies as an incidental trauma then it could be a source of progressive subdural hematoma and rise in intracranial pressure which could lead to the retinal hemorrhages.
Q So you just said you didn’t think that the fall caused these, but they could?
MR. CRONKRIGHT: Objection. That’s a mischaracterization of his testimony.
MS. SEDORE: I’m trying to understand his testimony Judge.
THE COURT: I’ll allow it. Go ahead.
THE WITNESS: Can you repeat the question?
BY MS. SEDORE:
Q I asked you first do you think that the fall from the father’s lap caused these retinal hemorrhages and you said no.
A Well--
Q Right?
A --what I said is that if she had preexisting subdural hematoma then she would have been at risk for repeated bleeding. And that repeated bleeding could be exacerbated by any minor trauma which it sounds like this may have been one. Or it could’ve happened even spontaneously without any trauma.
Q It could’ve just happened all on its own that she got retinal hemorrhages? Without trauma?
A In the setting of a chronic subdural hematoma and a superimposed acute subdural hematoma you can get retinal hemorrhages. Just based on that alone without any additional need to explain that based on trauma.
Q What studies have there been that show that Doctor?
A Well there’s plenty of information in the literation saying that children with subdural hematoma--first of all it’s an underdiagnosed condition. There’s plenty of information suggesting that it happens especially after complicated deliveries. And there’s plenty of information stating that those children with that condition can develop spontaneous hemorrhages, very significant hemorrhages with minimal or no trauma.
Q Retinal hemorrhages or subdural hemorrhages?
A Subdural hemorrhages. And there is information that if you have an acute elevation intracranial pressure as caused by an acute subdural hemorrhage that you can end up with retinal hemorrhages.
Q Where is this literature Doctor? Where is that--what are you basing that on?
A Well I mean I can tell you that you know I have hundreds of cases in my practices number one. Number two the mechanism is well known. There’s--
Q Doctor I’m sorry my question was where in the literature is that? What are you talking about? What study?
A Well I’m not referring to a particular study.
Q Well what literature were you referring to?
A But I mean--this was first described over a hundred years ago in cases where there’s elevated intracranial pressure associated with subarachnoid or subdural hematoma that leads to retinal hemorrhages.
Q One moment Judge. Have you heard of the study by Schloff? S-C-H-L-O-F-F?
A What’s the title of the study?
Q Let’s see.
THE COURT: Do you need the light?
MS. SEDORE: That would be good Judge. I’m sorry yes.
THE COURT: Turn the light on please. Thank you.
BY MS. SEDORE:
Q Retinal findings in children with intracranial hemorrhage from 2002 published in ophthalmology.
A Yes I do recall reading that study.
Q Okay. And that was 57 non-abused children meaning we knew where their trauma came from and it was not inflicted on them, for intracranial hemorrhages right?
A Looking at intracranial hemorrhages yes.
Q And only two of the 57 had retinal hemorrhages is that correct?
A Yes. But there--may I look at the study with you? Because I’ll--
Q I don’t have the full study. I’ll let yon see what I’m looking at.
MS. SEDORE: May I approach Judge?
THE COURT: Yes.
THE WITNESS: Is this the abstract from the sturdy o what is this that I’m looking at?
MS. SEDORE: It’s not the study Doctor.
THE WITNESS: It’s not the study.
MS. SEDORE: No it’s not the study Doctor. It’s a summary of the study.
THE WITNESS: Okay so all I see here is a sentence saying a study by Schloff of 57 non-abused children hospitalized for intracranial hemorrhage revealed retinal hemorrhage in only two patients. Well um, it doesn’t say here whether these intracranial hemorrhages were acute. They’d have to be acute to cause a sudden rise intracranial pressure sufficient to cause retinal hemorrhages.
BY MS. SEDORE:
Q So they can’t be old to cause that? Right? Can’t be chronic?
A No no it has to be a sudden hemorrhage. It can’t be a slowly evolving hemorrhage. That will not cause retinal hemorrhages.
Q What about a chronic subdural hemorrhage that is older?
A A chronic subdural hemorrhage will not cause retinal hemorrhage. It will predispose the child to have further subdural hemorrhages and it will make the baseline situation such that the intracranial vault is already tense so that further bleeding will cause pressure spikes, but you’ll need to have an acute rise in intracranial pressure to cause the retinal hemorrhage.
Q Can I have that back?
A Yes ma’am.
Q So not a chronic subdural? That won’t cause it. Okay. Now you showed us in your slides an example--I believe there was one you showed of a two year who had an injury while running. Is that correct?
A Yes.
Q Can you go to that slide please? Thank you.
A Right there.
Q Okay. So the retinal hemorrhaging in this is only centrally located correct?
A It’s fairly central I would agree yes.
Q Doesn’t go out to the periphery?
A Yeah I don’t have a picture of the periphery but it’s, it’s mostly central and fewer in number than the rest of the cases.
Q Okay.
A But I have had cases of similar mechanism--
Q There’s no question before you Judge--or Doctor.
A Okay.
Q So you also had a slide of a 17 month old post neurosurgery um, that had an evacuation of a large amount of blood from their brain and that’s what caused that slide right?
A Yes.
Q Can you go to the slide please?
A Right here.
Q Okay. And that was after neurosurgery where blood was removed from within her brain--his or her or brain?
A Evacuation of intracranial hemorrhage yes.
Q Would the angiogram help rule out the occlusion issue?
A Um, maybe maybe not. If there was accurate assessment of the transient time which I did not see that that’s helpful. But it’s hard to definitively rule that in or out.
Q One moment your Honor. I believe you did testify--I just want to make sure I’m correct. You testified earlier that in the majority of cases um, I’m sorry--I’m sorry one moment. I thought you testified in the majority of--all right now I don’t want to misstate it. I’m sorry let me see if I can find my note. One moment. I apologize. Thank you. Oh actually I had a more specific question. As to Naomi’s you testified that again regarding subretinal hemorrhages that you didn’t see any you could easily call subretinal hemorrhages. Were there any that could be subretinal hemorrhages on Naomi’s RetCam Scans?
A I don’t think so. But we’re looking at this--I mean sometimes--thank you--sometimes subretinal hemorrhages are masked by preretinal hemorrhage or intraretinal hemorrhage. So I mean is it conceivable like in some of these larger dark areas there might be a subretinal competent to the hemorrhage? It’s conceivable. But I would’ve detected that if I were taking care of this child I would’ve filed the child as this hemorrhage cleared, the preretinal and intracranial hemorrhage cleared looking for subretinal hemorrhage which would linger around longer and cause reactive pigment reaction. Now I’m relying on the ophthalmologist’s notes seeing her in clinic to assess that because you know I didn’t follow her myself. But they report that the hemorrhages all cleared within a matter of weeks and that there was no pigment reaction and that the retina looked normal. So that would strongly suggest to me that subretinal hemorrhages were not present.
Q And is it your testimony that you cannot--you would not give any opinion as to the age of these hemorrhages? Any at all?
A Well they’re not years old for example. But I can’t say if this happened you know today or a week ago or two weeks ago. I wouldn’t be able to say.
Q Could you say it happened at birth?
A It’s possible--happening at birth means that she was 11 weeks old at this time. So you’re asking me could, could’ve--could these hemorrhages be 11 weeks old? Yes they could.
Q Is that likely?
A Um, I would say you know the majority of cases of--it really depends on where she started from. I mean if the hemorrhage was very significant at birth and you know a lot of it cleared but there’s still this much hemorrhage that’s certainly within possibility. And this much hemorrhage is--as I said is not enough to obscure vision or cause visual compromise. If, if this was the picture at birth then I would’ve expected it to improve some by 11 weeks. But as I mentioned there are cases where there’s hemorrhage that lasts much longer than that.
Q But you just said that if this was from birth you would’ve expected them to resolve within a couple of weeks?
A You’re misstating what I said.
Q I apologize Doctor.
A I said if it was significantly more hemorrhage at birth than this it’s possible that this could be the picture at 11 weeks. And I said if this was the picture at birth exactly like this then I would’ve expected to improve by 11 weeks.
Q Okay. That’s what I meant to say when I was trying to recap. Is it your opinion Doctor that you cannot diagnosis something as a shaking mechanism without sheering injuries to the retina and to the eye?
A Well that is the mechanism for retina hemorrhage and these other constellation of findings that we see in the back of the eye in a shaking case. It’s--it has to do with the angular acceleration and deceleration that causes sheering stress to the retina. So I mean it’s kind of the definition. So what you’re asking me is can you have shaking injury and not having sheering stress? Is that the question?
Q Well I’m confused because I thought you testified when defense was questioning you that the specific things you didn’t see in Naomi’s eyes were the sheering type injuries that you expect to see in shaking cases. Is that correct?
A What I testified is that there’s a list of features that you see with shaking. Shaking causes sheering stress.
Q Right.
A And with sheering stress you see hemorrhages but a lot more. You see retinoschisis, you see retinal pigment epithelial alternation, you see subretinal fibrosis, you see optic atrophy, vitreous base avulsion, peripheral non-perfusion, and macular holes, and we did not see any of those features in her case.
Q But you don’t see all of those features in every shaking case do you?
A No.
Q Okay.
A But some cases will have some of them and not others. Is that what you’re suggesting? Yes.
Q My question to you--you’re saying that the retinal hemorrhages themselves are--could be a sheering force injury basically is that right?
A I did say that. A very mild shaking injury could potentially mimic the other mechanism in terms of causing retinal hemorrhages that are strictly superficial intraretinal. And that I would have no way of knowing with 100 percent you know that that’s happened. That’s why shaking injuries still on the differential diagnosis although very low on the probability.
Q Okay. Now as to shaking as a mechanism doesn’t the level of what happens to the child’s eye depend on the number of times the baby is shaken?
A Possibly.
Q Does it depend on the number of instances of that happening over the baby’s life?
A Well--
Q For example one incident versus once a week.
A Repeated shaking once a week um, well if that were to happen you would expect to see you know blood of different ages. But you would still expect to see all of those pathologies that I, that I just listed on the case.
Q But my question is with one incident couldn’t you see less that you would with once a week of that kind of incident?
A Um, that--I don’t--that doesn’t seem logical to to think of it that way. I could say that you know a milder shaking event possibly could be associated with some preretinal intraretinal hemorrhages alone and that it’s hard to distinguish that from an acute elevation in intracranial pressure which is more common. And--
Q Thank you Doctor. That’s enough.
A Does that answer your question?
Q Yes it does.
A Okay.
Q Thank you.
MS. SEDORE: Nothing further.
THE COURT: Redirect?
MR. CRONKRIGHT: I just have a few questions Doctor.
REDIRECT EXAMINATION
BY MR. CRONKRIGHT:
Q I suppose I should start with did you have a good lunch?
A I did thank you.
Q Who bought your lunch?
A Uh I believe you paid for it Michael.
Q Now does anything about that make you more or less biased?
A I don’t think so.
Q All right. Um, we’ve--you’ve only put up a few of Naomi’s slides but as far as you understand have you reviewed all of the slides?
A All of the RetCam images that were provided yes.
Q Okay. Um, and that would include apparently this type of imagine and also the angiogram images is that right?
A Right. So I chose the ones that were in best focus and uh, some central and some peripheral and--that best represented what was going on.
Q Okay. Um, so if we were--if we were particularly going to look for subretinal hemorrhages and if we were going to look at the images that were--that didn’t sound good. This may test my tech skills here. One moment. All right that’s the best I can do without knowing what I’m doing.
A You could push slide show--
Q I don’t know how to get that full screen. What’s that?
A Push slide show. If you want to show the whole--
Q Slide show.
A From current slide to your left.
Q Thank you. So I believe your controller would still control that.
A Okay.
Q All right. Let’s go--this is just a beginning picture right?
A Correct.
Q And what we’re looking at here the visual strangeness is artifact in the photograph is that right?
A Yeah this is a view of the front of Naomi’s eyes, looking through the cornea you see the iris. And this is a non-contact picture so this was the camera that was held above eye before it was actually touching the cornea. When the camera touches the cornea then the light will go through the pupil and you’ll be able to see the retina. But here we’re looking at--this is an external shot. You see the lashes, you see the conjunctiva and the cornea--you see these little bubbles on the surface of the cornea this is uh, which is a medium that we used as a coupling agent to couple the lens to cornea. And this strange shape thing is just the light reflex off of the layer of gel which was applied to her eye.
Q All right.
A So this is all artifact.
Q Let me trade with you--I want to do this as quickly as you can. You have a button there?
A Okay.
Q All right. Okay. So on this slide we’re going to go straight through. Do you see anything that you think is questionable in terms of a subretinal hemorrhage?
A No I see preretinal hemorrhages; this pointer is not very good. I see preretinal hemorrhages centrally there. This doesn’t work.
Q That’s not helping you any?
A And I see some intraretinal hemorrhages more around the first bifurcation of vessels--
Q All right.
A You can just tell me in advance.
Q All right. Let’s go to the next slide.
A So, so these are preretinal, these are intraretinal. I don’t see anything that characteristically looks different than these two types of hemorrhages that I would be able to attribute--call subretinal hemorrhage. I would challenge anyone to do that. Um, same thing on this slide. These are preretinal hemorrhages. This is intraretinal hemorrhage.
Q Keep going.
A Again uh these hemorrhages are preretinal. This--the left eye now. And these are intraretinal hemorrhages.
Q Okay.
A Similar here preretinal hemorrhage, intraretinal hemorrhage, preretinal hemorrhage, preretinal hemorrhage. This is more peripheral and you can see that the concentration drops of the hemorrhages as you go peripheral--more peripheral.
Q Okay.
A This is in the right eye. Similar thing preretinal, preretinal, we’ve already seen these. Intraretinal hemorrhages. I don’t see anything that’s subretinal.
Q Okay.
A This is a little depression in the periphery.
Q By the way what is that? What does that mean sterile depression?
A The examiner is intending the eye wall. Usually with a Q-tip or depressor so that it brings the eye wall into view. This is a technique that retina specialists use to be able to see the periphery in more detail. This here is the ora serrate. The interior edge of the retina. This is where the retina ends. So you--
Q Okay.
A --can see that there’s you know a couple of hemorrhages here but they’re not as concentrated as in the posterior pole.
Q Okay. Next.
A Same thing here. These are actually dentate processes which occur at the ora serrata. So he’s getting--this is beyond the edge of the retina into the (indecipherable) area. And this is skull indentation.
Q Okay.
A And this is the posterior view and this is the periphery.
Q Do you use any subdural hemorrhages here?
A I do not.
Q All right. Keep going.
A Same thing here. This is a bit out of focus. I have a hard time with this particular slide interrupting it. But it’s--I don’t see anything that definitely points to um, subretinal hemorrhage.
Q Okay.
A This is exactly the same slide. These are just--I mean the only difference between these two slides is the angle--the camera’s tilted a little bit. These are all showing the same thing.
Q (Inaudible) retinal on that last one?
A Nothing subretinal that I could call subretinal here.
Q Okay. And here?
A Same.
Q Okay. Anything subretinal here?
A No.
Q All right. Anything subretinal here?
A No.
Q Why is this upside down?
A It’s not upside down. This is a view of the left eye and you’re looking at the inferior periphery. The optic nerve is high so we’re looking inferior to the optic nerve.
Q Okay.
A And there’s a little skull indentation there.
Q Okay. Anything subretinal?
A No.
Q All right. Keep going.
A We’ve seen this picture already.
Q Anything subretinal here?
A No. not in any of these.
Q Okay.
A So I don’t see anything that I would call a subretinal hemorrhage on any of these--
Q Okay.
A --pictures. Um, but again if I were following the patient I would check again once the intraretinal hemorrhages have cleared.
Q All right. Are we at the end of these regular RetCams?
A Yes.
Q Okay. All right. Let me recover my device. Thank you. Before you rendered your opinion you you examined all of those in the way you would with any other patient correct?
A Yes.
Q All right.
MR. CRONKRIGHT: I think that’s all I have your Honor. Thank you.
MR. BREWER: No questions.
THE COURT: Mr. Brewer any questions? Mr. Garthoff?
MR. GARTHOFF: No your Honor.
THE COURT: All right. Ms. Sedore any, anything else?
MS. SEDORE: No your Honor.
THE COURT: All right. I’ll go ahead and ask the members of the jury if you have any questions for this witness. If you want to write them down on a piece of paper, pass them to the bailiff. If you do go ahead and take a minute. Anyone? Is that no by all? All right. May this witness be excused?
MS. SEDORE: Yes.
MR. CRONKRIGHT: Yes your Honor.
THE COURT: All right. Thank you Doctor, you may step down.
MR. BREWER: He needs his laptop.
THE COURT: All right. We’ll go ahead and take just a quick break right here so we can disassemble equipment and whatnot and get our next witness lined up. Okay. So we’ll go ahead ladies and gentlemen give you a little bit of an early break here. We’ll only take about five minutes here. Okay?
DEPUTY KERR: All rise.
(At 2:26 p.m., jury leaves courtroom)
THE COURT: All right. The jury outside of the presence of the courtroom. So are we ready to go back into the People’s Petitioner’s case?
MS. SEDORE: Yes we are Judge.
THE COURT: Okay. And you’re prepared to call your next witness after the break?
MS. SEDORE: Yes Judge.
THE COURT: Okay. And do we need to do any further unplugging here?
MR. CRONKRIGHT: I think we’re good Judge. Thank you.
THE COURT: Okay. We’ll take about five minutes.
(At 2:27 p.m., court recess)
(At 2:32 p.m., court reconvenes)
COURT RECORDER: Back on the record in the Naomi Burns matter file number 14-14708-NA.
THE COURT: All right. Back on the record in this matter. All the parties that previously appeared continue to appear. And are we ready to bring the jury back out?
MS. SEDORE: We are Judge.
THE COURT: And any objection if the Court just instructs them that we are back into the petitioner’s case?
MR. CRONKRIGHT: That seems entirely appropriate.
THE COURT: All right. Let’s bring them in.
DEPUTY KERR: All rise.
(At 2:33 p.m., jury enters courtroom)
THE COURT: Okay. Welcome back. Please be seated. For the record the jury is now present in the courtroom. Ladies and gentlemen we’re now going to go back into the petitioner’s case. They will be calling their next witness.
MS. SEDORE: Thank you Judge. The People would call Mark Wheeler to the stand.
THE COURT: All right. All right Mr. Wheeler if you could go ahead and raise your right hand and be sworn here.
COURT RECORDER: Do you solemnly swear or affirm the testimony you’re about to give in this matter pending before the Court will be the whole truth and nothing but the truth?
MR. WHEELER: I do.
THE COURT: Go ahead and be seated and comfortable. And pull yourself up to the microphone and state your name for the record.
THE WITNESS: Mark Wheeler.
THE COURT: All right. And why don’t you go ahead and spell that for us?
THE WITNESS: W-H-E-E-L-E-R.
THE COURT: All right. Thank you. All right Ms. Sedore.
MS. SEDORE: Thank you.
MARK WHEELER
called as a witness at 2:34 p.m., testified as follows:
DIRECT EXAMINATION
BY MS. SEDORE:
Q Mr. Wheeler where are you employed?
A The Department of Human Services.
Q Okay. And do you work in a specific unit?
A I work with the Child Protective Services Unit.
Q How long have you worked with Child Protective Services?
A Almost three years now.
Q Okay. And what did you do before that?
A Foster care.
Q And how long did you do--through DHS or something else?
A Through the Department of Human Services.
Q Okay. And how long were you with DHS and foster care?
A Two years almost.
Q Anything before that with DHS?
A Uh no. I did contract work with the county as a parenting coach though.
Q A parenting coach?
A Yes ma’am.
Q Your voice is just a little soft so just try to speak up.
A Yeah sorry.
Q That’s okay. How long were you a parenting coach with the county?
A Oh not quite a year, it was prior to leaving for a different job to--actually I worked in a psychiatric hospital with children after the parenting coach.
Q Okay. So you’re in between the parenting coach and foster care you worked at a psychiatric hospital for children?
A Yes.
Q In what capacity?
A Childcare worker. I worked with their daily care and then also worked with group counseling and things like that.
Q Okay. And before your working with parenting coach and onward did you have a different career?
A I was a design engineer yes ma’am.
Q Okay. For like an automotive company?
A For--yes ma’am.
Q Okay. So this is kind of a second career?
A Yes ma’am.
Q Okay. And so I’m gonna take your attention to back--well not the beginning of this year. Around March of this year did you end up getting contacted regarding suspected child abuse involving a child named Naomi Burns?
A Yes ma'am.
Q When was your first contact and from whom?
A I was given the--of course through supervision we’re given our cases. So my first contact was when I was notified of the case on I believe March 27th.
Q Okay. And um, when you get that what information are you given?
A Uh, basically the allegations and some basic family information that were available.
Q And what do you do with that?
A Take the information and then go to meet with the family whether it’s in the home or wherever they are at the moment.
Q Okay.
A Try to meet with the child depending on the circumstances.
Q And so in this case were you able to go meet with the family?
A Yes ma'am.
Q And where did you do that?
A At the University of Michigan Hospital in Ann Arbor.
Q And what date did you first meet with them?
A Uh I believe it was the 31st of April.
Q Had you had nay telephone contact with them before that time?
A Not to the best of my knowledge. I can’t, I can’t recollect having telephone contact.
Q Okay.
A Other than to arrange to come and meet with.
Q Okay. Okay. And before you got involved at the U of M with the family was there any other CPS Department involved in that?
A Uh yes the, the county that the hospital is in they originally called their CPS but because of the way it works for State of Michigan the investigators for the county the child lives in not the county where the child is at or where the injury occurs. So the case went from that county to our county.
Q So it started with a different CPS worker from--
A Right.
Q --the county the hospital is in but then went to where they live correct?
A Yes ma’am.
Q Is that--okay. All right. And so you went met with the family on the 31st of March. Before you met with the family what information did you obtain about what was going on?
A Um, basically that there was a child with possible head injuries closed head injuries. Then this--I mean the basics that the father had stated that he had almost dropped her I believe was the other incident, part of it.
Q Did you review any medical record?
A Prior to seeing them no. I met--but I did meet with Dr. Mohr and hospital social worker prior to meeting the family.
Q So you did meet with Dr. Mohr and the hospital social worker before you met with the family?
A Yes ma’am.
Q And did you discuss the medical history with them?
A Uh yes ma’am.
Q And the concerns? Yes? All right. And um, so when you first meet the family in a general sense what is your job as a CPS investigator or worker?
A We have standard--you know we do an interview. Basic questions or background questions on the family. You know of course get their background, their birthdates and other pertinent information. And then we lead to meeting with and talking to them about you know what happened with the incident that lead to us having to be investigating.
Q Okay. And at the time that you first met with Dr. Mohr and the hospital social worker the two MRI’s and the ophthalmology examine about retinal hemorrhages had already been discovered correct?
A Uh yeah, but I believe they’re still being reviewed.
Q Okay. All right. And so um, when you met with the family where did you meet with them and who was with you?
A Well I met with the family they were in the room with baby Naomi. And there was Mr. and Mrs. Burns, um, their pastor his wife and some other congregational people. I’m not sure you know their nam--I did know their names but I don’t recollect their names.
Q Okay.
A I mean they gave me their names but I don’t recollect them.
Q All right. And so when you meet with the respondent mother and the respondent father what do you do?
A Introduce myself and then we had the people leave the room so we could met with the mother and then I met with the father after that. I also met with the preacher that was there with him.
Q And when you met with the mom you said you had everyone else leave the room. Was there anyone else present besides yourself and the mother?
A No ma’am.
Q Okay.
A Not that I recollect.
Q And then when you met with the father the same thing?
A Yes ma’am. Just myself and the father.
Q And then you also said you talked with their preacher was that--
A That was alone in a waiting area.
Q Okay. And was that Mr. Belcher?
A Yes.
Q Sound right?
A Yes ma'am.
Q Okay. Did you talk with his wife or just him?
A Just Mr. Belcher.
Q And you said that was in the waiting area but it was by himself?
A Right. I mean his wife did talk--I mean as far as an interview I only interviewed Mr. Belcher.
Q All right.
A Of course his wife and the others did talk.
Q Okay. So others talked to you as well, but not during those interviews?
A Right.
Q Okay. All right. And when you met with the mother what were your goals and what were you trying to find out?
A Just basically what she knew what happened how her child could be in the state it’s in. other than the background information I asked her what does she know, you know--
Q And what did she tell you?
A Um, basically she said that her husband had almost dropped the baby and in catching it had hurt--that’s how she--to the best of her knowledge that’s how the baby was hurt, baby Naomi was hurt.
Q Okay. And did you talk to her about um, the doctors findings about that or the concerns with that not matching up with this--the injuries?
A A little bit of that discussed. I mean she did discuss seeing a red mark--the baby having a red eye, a red mark on the face. I think there was a scratch or a line on the cheek that she had mentioned as far as the physical outside appearance of the baby.
Q Okay.
A And then we did discuss a little bit about, but I didn’t state to her that nothing matched I believe that was stated later with the doctor in the room.
Q Okay. So mostly you were just getting information from her?
A Yes ma’am.
Q Is that correct? Okay. And when she described what happened with the fall did she tell you what her husband had told her?
A Yes.
Q Did anything come up about hitting the baby’s head on anything besides his hand?
A No ma’am.
Q Okay. Do--when you do these kinds of meetings in general since there are more than one caregiver for this child do you ever ask each caregiver if they think that something more may have happened? I mean is that something that you look into?
A That is something at we do ask.
Q Okay. And did you--
A I can’t recollect whether I did that with this--in the initial meeting. I don’t recollect.
Q Okay. Did you do that later on though?
A I know I did talk to the husband when we were one on one and you know tried to be clear with him on what he was stating.
Q Okay. All right. And so you got information from Mrs. Burns about the alleged fall. Were there any other major medical concerns that she shared with you about the baby?
A None whatsoever.
Q Okay. And then when you talked with the father did he explain to you about the fall?
A Um, yeah he described what he said had happened.
Q Okay. And um, when he described what had happened did he mention anything about the baby hitting anything other than this hand?
A No ma’am.
Q Okay. And you said that you also tried to find out past history from the mother and the father. Did you ask the father about any prior incidents with domestic violence?
A Oh yes we did.
Q And did he tell you any?
A I believe there was none stated. I asked the mother about domestic violence.
Q And she said no as well?
A Yes ma'am.
Q Okay. And did you ask anything about any criminal contacts or is that not something--
A There are standard questions we ask. Criminal history, domestic violence, certain things, psychological concerns or anything like that. Addictions.
Q And did the father tell you of any addictions?
A No ma’am.
Q Okay. Any criminal history from the father that he told you of?
A I don’t have my notes for me to recollect whether he did. I think the only thing was maybe a DUI was mentioned.
Q Nothing relating to a domestic violence incident?
A No ma’am.
Q All right. And did he speak of anything regarding alcohol?
A Not that I recollect ma’am. I mean other than a DUI. I mean--
Q The DUI right. Okay. All right. And so then you spoke with a pastor without telling us what the pastor had told you what in general were you talking to him about?
A I was just trying to get his feeling on you know how well he knew the family, how long--because you know he was there as a support for them. Did they have everything they needed? All those sort of questions. And did he have any concerns or anything to share?
Q Okay. All right. And then the other people who were present talking to you were they asking questions or were they giving you information or what were they doing?
A Well I know, I know the pastor’s wife had given me some information that they had looked up online about um, injuries that can be caused that might look like abuse but aren’t abuse. She did give me a stack of stuff like that that they had researched which I did discuss with Dr. Mohr.
Q Okay. So they gave you a stack of stuff they found online?
A Yes ma’am.
Q About possibly other explanations?
A Other explanations.
Q Okay. And you did give that to Dr. Mohr?
A I, I discussed it with Dr. Mohr. I actually kept the--
Q Talked about it though.
A --stuff myself.
Q Okay. All right. And um, let’s see. At what point--well at the point that you first entered into this on the 31st was there already a safety plan in place at the hospital regarding the family visit?
A Yes ma’am.
Q Okay. And what was that safety plan at that point?
A That the child wasn’t left unsupervised.
Q I’m sorry the child what?
A The child wasn’t left unsupervised.
Q And how about nighttime overnight stays?
A The family to the best of my knowledge was allowed to be but once again that child wasn’t left unsupervised.
Q Okay. And at some point did the nighttime visits change or get suspended or however you want to call it?
A I don’t recollect the nighttime visits being changed. I just know there was discussions about--you know we have a primary, secondary plan and there was a discussion with them that you know--if there’s a concern for abuse we may need the child to temporarily stay with somebody. That was something that was discussed.
Q Okay.
A As far as the--
Q Cause the child was--
A --safety plan.
Q And the child was still in the hospital being treated at this point?
A Yes ma'am.
Q Okay. Um and did you get to see Naomi?
A Yes ma'am.
Q And what did you observe of Naomi when you first met her? Was that that same day?
A Uh yes ma’am.
Q Okay. What did you observe?
A She looked like a typical child. The mother was holding her so I couldn’t get a real good look at her. She did allow me to take a picture of baby Naomi.
Q Okay.
A Um, but I didn’t note any physical injuries that I could see on the outside.
Q Okay. All right. And so what happens next?
A Well I went into the room--I met with the doctors. We went into a room and introduced. I interviewed each of the three of them. Told them I was gonna talk to the doctor. I went back and met with the social worker, talked to the doctor. Um, that’s when I talked--discussed the paperwork that was given to me by the preacher’s--the pastor’s mother--I mean wife excuse me.
Q Okay.
A And then she said that she knows--she’s familiar with the situation that yes it could be--and we all were erring on caution to be honest with you. We, we--they didn’t fit the typical concerns we might have with a risk assessment. For some people you know the addictions, the domestic violence, the--those types of things. So we were erring on caution to say make sure everything--(inaudible) what Dr. Mohr says. She’s gonna continue looking at reevaluating the testing.
Q Okay. And at this stage I mean were you outright accusing them of abuse?
A Oh no.
Q You said you were being very careful. You said no?
A No ma’am.
Q Okay.
A I never outright accuse anybody of abuse.
Q Okay. And so tests were still being run and the results still pending on several things is that right?
A Yes ma’am.
Q Regarding Naomi. Okay. As a worker for Child Protective Services do you get some benefit if you make a decision as to a child’s placement one way or the other or--
A No ma’am.
Q Okay. All right.
A Creates more work.
Q What?
A It actually creates more work.
Q Okay. And so what do you do after you meet again with Dr. Mohr and the social worker?
A Well I discussed that he had talked about the injury and that’s when she was saying that she didn’t see that as--she talked about how she had discussed with--you know she brought it to his attention that doesn’t seem to fit the type modality to cause that injury. So we discussed--she had a baby doll in the office and we discussed maybe we could have him demonstrate what had happened and he could show us how the baby fell and maybe she could see something in that or I could see something in that that could lead to--
Q So at that point the intent of using the doll was just to try to understand the mechanism of what maybe had happened?
A Yes ma’am.
Q Okay. It wasn’t meant to incriminate or do anything like that at that point was it?
A No ma’am.
Q Okay. There was no law enforcement present correct?
A No ma’am.
Q And it wasn’t videotaped or anything like that?
A No ma’am.
Q So did you do that um, with the doll the same day?
A Yes ma'am.
Q Okay. So that would be 3-31?
A Yes ma’am.
Q Okay. And tell us where was that at?
A In hospital room.
Q In Naomi’s room?
A In baby Naomi’s room.
Q Who was present for the demonstration?
A Uh to the best of my knowledge the Belchers, the Burns, um, there was one other friend there that I can’t remember her name and then Dr. Mohr. And I thought the hospital social worker was there, but I was more focused on the family and that so I’m not sure if she was there or not at that time.
Q Are you sure as to whether or not Mrs. Burns was in the room during that?
A I thought Mrs. Burns was in the room, but I can’t say 100 percent she was. But I was pretty sure she was. I know Mr. Belcher was over on the other side--they have a little curtain partition that they pull out.
Q Okay.
A I know Mr. Belcher did not watch. He was actually on the other side of the curtain because I know after I witnessed it I walked about and Mr. Belcher was standing on the other side of the curtain I believe. Well he could have watched, but I assumed he didn’t because--
Q It looked like he didn’t.
A --he was on the other side of the curtain.
Q Okay. And so what is told to Mr. Burns about what you’re asking him to do?
A We just said we have you know the baby could you please just demonstrate to us how this happened so that we can kind of get an idea of the baby went through.
Q Okay. And so when that’s going on and you’re asking him about that you said you had not accused him of child abuse correct or his wife right?
A (Non-verbal response).
Q And they were still allowed to see Naomi just as long as there was supervision right?
A Yeah.
Q Okay. And so what was Mr. Burns' demeanor like when you first came in the room and with the doll to ask him to do that?
A Cooperative. Helpful.
Q And then what happens?
A Um, I mean as far as how he got the doll I don’t remember if Dr. Mohr gave him the door or what. I don’t--
Q Okay.
A And then he started talking and demonstrated what happened--excuse me I moved away from the microphone--what happened with the--with him and baby Naomi.
Q Okay. And how did he do that? Was he standing or sitting or something else?
A He was sitting down ma’am.
Q And what did he show you if you can describe for us?
A Um, you mean with the baby?
Q Uh-humph.
A Um, he said that he had her on I believe his left knee and his left hand on her back. And his right hand in the front torso area. And he was holding her on the knee like that before the phone call.
Q Okay. And then what happens?
A And then he said his wife had called and he grabbed the phone and talked to her while he was holding the baby. It’s not real clear and I’m sorry in my memory whether he--I believe it was when he was hanging the phone up. I don’t believe it happened when he was on the phone with her, but from my memory he was--he talked to his wife and then as he went to hang the phone up he showed himself reaching over and the baby started to fall forward.
Q Okay.
A And then he did a very--it was a surprising act. He swung real hard, real fast, caught the baby in the face and it went spinning head over heels, its socks flew off, its hat flew off, and it went at least three feet in the air and then it came down. He caught the baby or he said that’s not really what happened, that’s not how it happened and he showed us again.
Q Okay.
A And he put the baby on his lap like that before--
MR. CRONKRIGHT: Well I’m gonna object. My understanding is that he’s demonstrating with a doll and this witness is referring to it as a baby.
THE WITNESS: Oh the doll. Sorry baby doll.
THE COURT: So your objection is to his characterization of--
MR. CRONKRIGHT: Yes. Yes.
THE COURT: Well I don’t know that the Court can tell him how to testify. If you want--if you want to cross-examine him on that point I’ll allow it. But I’m--go ahead Mr. Wheeler.
BY MS. SEDORE:
Q None of this was with baby Naomi right?
A None of it was baby Naomi, but he was describing what happened with the baby.
Q Right. And he’s using--
A Using a baby doll.
Q --a doll. Okay. All right. So then you said he said well that’s not really what happened.
A That’s not quite what happened so he did the same thing with her on his lap, with his left hand behind her back again and this hand there. And then this time when she fell he did another real quick seeing up with his hand and grabbed her by the face and held her. and I got to be honest it almost was like somebody--
MR. CRONKRIGHT: Objection.
THE WITNESS: --catching a touchdown.
MR. CRONKRIGHT: Objection. He doesn’t--I mean I appreciate the fact that he wants to be honest, but if he’s gonna go into commentary rather than telling what happened which is what it sounds like then that would be non-responsive to the question of what happened.
MS. SEDORE: I think he was describing what he saw and his response to it. I think it’s relevant.
THE COURT: Are you saying it’s a narrative no or--
MR. CRONKRIGHT: No. I’m saying it’s--we’ve gone from a narrative description to a commentary. He said--I stood up and objected when he said well I’ve got to be honest and he was going to start describing his reaction or something. I don’t know what he was gonna describe. But he needs to stick to answering the question. That’s my objection. And the question was on something on the order of telling us what happened.
MS. SEDORE: It’s a present sense impression Judge.
THE COURT: All right. Well I’ll just, I’ll direct him to tell us what you saw. I think that was the question right?
MS. SEDORE: Right.
THE COURT: Correct? Okay. Go ahead.
BY MS. SEDORE:
Q And you said you grabbed the baby by the face and kind of held it by the face with one hand right?
A (Non-verbal response).
THE COURT: Is that a yes?
THE WITNESS: Yes ma’am.
THE COURT: All right.
THE WITNESS: Sorry.
THE COURT: I need you to answer out loud.
THE WITNESS: Usually I say yes.
BY MS. SEDORE:
Q Okay. And what was his demeanor during the first demonstration? Was it still calm and cooperative?
A Yes ma’am.
Q Okay. And how about during the second demonstration?
A Um, I know Dr. Mohr had made a comment about the force that he grabbed was very concerning. I don’t know if that had anything to do with it but he--I mean try not to put my feelings--he, he was happy he caught the baby.
Q Okay. All right. And so when he did the second one did he say that basically what had happened?
A Yes ma’am.
Q Did he ever say it was a complete fail?
A I don’t recollect.
Q The demonstration?
A I don’t recollect that.
Q Okay. All right. Did the demonstration cause you any concern as a CPS worker in this case?
A Yes ma'am.
Q And why is that?
A Because--well just as a--not even (indecipherable) the force that he showed to try and stop that child from slowly falling forward seemed very extreme to me. Almost like he--and if you want my opinion almost like he--
MR. CRONKRIGHT: No objection your Honor.
THE WITNESS: I thought she said what did it mean--
MR. CRONKRIGHT: This doesn’t call for--
THE WITNESS: --to you so--
MR. CRONKRIGHT: --opinion testimony--
THE COURT: Hold on. Hold on.
MR. CRONKRIGHT: There’s nothing that’s been asked of him that calls for opinion testimony.
MS. SEDORE: Well I did ask him--
THE COURT: Response?
MS. SEDORE: --how it affects his thoughts as a CPS worker in this case. I think it’s relevant.
THE COURT: All right so you’re asking him what was concerning to him--
MS. SEDORE: Yes.
THE COURT: --as the investigator?
MS. SEDORE: Right.
THE COURT: I’ll allow it. Go ahead.
THE WITNESS: I’m sorry can you--
MS. SEDORE: That’s okay. So I believe you had said what was a concern to you was the force with which he showed um, when she was falling?
THE WITNESS: Well yeah--what was concerning was that the baby was number one on his lap and it was falling forward and just the extensive force he used to grab that that it was very--it was as if he was trying to show that that baby--even though it didn’t hit anything he hit it hard enough to cause the injuries. That is what I felt.
BY MS. SEDORE:
Q That was the impression you had?
A That was the impression I got.
Q All right. Now without telling us what was said was there any comment in the room after the first um, the first demonstration?
A Only from Mr. Burns when he said he wanted to--that wasn’t quite it.
Q Okay. How about after the second?
A Dr. Mohr commented that he had comment.
Q All right. And so what happens after that?
A Um, Dr. Mohr made the comment and we kind of separated to be honest with you. I don’t recollect a whole lot after that baby--what he did after the baby you know as far as in the room.
Q Okay. Did you talk to the family more or no?
A I talked to them and we did talk about a safety plan.
Q Okay. And did the--did that change anything about the night visits at that time that you know of?
A Not that I know of.
Q Okay. And um, is that the last time you talked to the family that day?
A To the best of my knowledge after the safety play yes.
Q Okay. And the safety plan--what’s the point of the safety plan?
A The safety plan--once again I--even though it was concerning that still didn’t--you know still wasn’t sure that anything had happened so we make a safety plan that is in case while we’re doing the investigation we want to have a, as they had in the hospital where the child was being observed you know they didn’t have--so basically what the safety plan was to find someone a friend or family--we want family of course that’s the primary--any family close enough that the child could stay with and they said no, but the Belchers were like family to them so it was discussed that maybe they could stay--if the child--when the child released if we haven’t come to a--finish up the investigation yet just for a temporary time the child could stay with the Belchers.
Q Okay. So--
A And that of course once again they’d have to supervise any contact with the parents.
Q With the parents?
A Right.
Q Okay. And so did the baby get released to the Belchers at some point?
A Yes ma'am.
Q Okay. And do you know what date that was that the baby was released from the hospital to the Belchers?
A No ma’am I don’t.
Q Okay. And um, you had said when you were testifying that you primarily want family to be the people that take over at that point. Why is that?
A Well for the connection of the child. The family--and then also legally we can’t place with non-relatives. If for any reason that it was found that there was abuse or neglect and we had to place then we would have to take the baby from the Belchers because they weren’t family or any other friends. So that’s why we look for family because the child could stay in the family placement if it did go to that stage.
Q Okay. And so how long was the baby with the Belcher family if you know?
A Um, I want to say a little bit over a week.
Q Okay. Were there any further ER visits when they (sic) were with the Belchers?
A There were--not ER Visits no. there were scheduled doctor visits.
Q Scheduled appointments right?
A Yes.
Q Okay. And at some point does that change that the baby is with the Belchers?
A Yes ma'am.
Q Okay. Why is that?
A Um, when--like I said we waited for U of M Dr. Mohr an the U of M child protection team to make sure with all the testing and they came back to us and said that they saw what they believe--not what they believe, but what was indicative child abuse. That the retinal hemorrhaging in the head--trauma to the brain.
Q Okay. And do you know what date that was on?
A I’m sorry I might have to--
Q Okay. Would your notes help?
A They would, but the problem is I haven’t worked for the last--
Q Would your report help?
A I don’t know if that is in the petition you mean?
Q No the investigation report?
A Oh yeah that would help.
Q Okay.
MS. SEDORE: May I approach the witness Judge?
THE COURT: Sure.
MS. SEDORE: Why don’t you take a look through there and--to yourself--see if you can refresh your memory.
THE WITNESS: Okay. I apologize. I probably need to grab my glasses. I’m not reading every little bit as well as I can.
MS. SEDORE: Okay do you have your glasses somewhere in the--
THE WITNESS: They’re in your office. I apologize.
MS. SEDORE: Okay.
THE WITNESS: I didn’t plan on reading something.
MS. SEDORE: (Inaudible).
THE WITNESS: I apologize.
THE COURT: Sure.
THE WITNESS: I can read some of it but I can’t read the--
THE COURT: Where are they?
THE WITNESS: They’re--
MS. SEDORE: Just outside in the office there.
THE COURT: All right. Go ahead.
THE WITNESS: I apologize.
THE COURT: That’s okay.
THE WITNESS: Sorry about that.
THE COURT: All set?
THE WITNESS: Yes ma’am.
THE COURT: Okay.
THE WITNESS: Much better. It was on 4-3 to what I’m seeing in my notes I believe.
BY MS. SEDORE:
Q So April 3rd of this year?
A April 3rd.
Q Okay. And then the child was removed from the Belcher’s care at that point?
A Yes.
Q Okay. Where was the child put?
A The child was placed in a foster home because there was no family at the moment in the state. Or that they deemed--
MR. CRONKRIGHT: Objection. That’s non-responsive. The question--it was a simple question. Where was the child placed?
THE WITNESS: Foster home.
MR. CRONKRIGHT: She didn’t ask why or what the rationale was it’s just where.
THE COURT: Okay. Response?
MS. SEDORE: And why was the child placed with foster care instead of just allowed to stay with the Belchers?
MR. CRONKRIGHT: Objection. Relevance.
MS. SEDORE: It goes to the story of what happened Judge.
THE COURT: What’s the relevance to the placement to the issues before the jury?
MS. SEDORE: I’ll withdraw the question. I’m--
THE COURT: Well if you can make an argument for relevance I’d be happy to hear it but--
BY MS. SEDORE:
Q All right. So was the father allowed any visits with the child--
A Uh no ma’am.
Q --at that point? No? How about--
A Until court. I’d have to look at my notes for the court date when that was decided that the father would not be allowed.
Q Okay. And how about the respondent mother? Was she allowed any visits?
A Yes ma'am.
Q What kind?
A They continued.
Q What kind of visits did she have?
A Supervised parenting time.
Q Okay. All right. And did you ever have a discussion with Mrs. Burns or Mr. Burns in regards to once child abuse was found as a the diagnosis as to what could happen going forward?
A Yes ma'am.
Q Did you speak with Mrs. Burns about any kind of separation with Mr. Burns in any way?
A Yes ma’am.
Q Do you know when you did that?
A That would’ve been at the removal, 4-3 I believe.
Q Okay. And when you talked to Mrs. Burns about that what did you discuss?
A I told her how the prosecutor--the assistant prosecutor had talked with me about her concerns that um, if she stays with Mr. Burns that it could affect her ability to care for the child or have the child.
Q Okay. And did she have any response to that?
A I can’t recollect--I’ll be honest she was quite upset and understandably so with the situation of going there.
Q Okay. And can I see that report again? May I approach Judge?
A Yes.
Q Did you ever ask Mrs. Burns in your interactions with her about the fact that the demonstration didn’t seem to match what the injuries were per the doctor and ask her for any explanation or anything like that?
A I’ll be honest I can’t recollect if I did or not.
Q Would looking at your investigation report help?
A Always does. It’s been eight months.
MS. SEDORE: May I approach Judge?
THE COURT: Yes.
MR. CRONKRIGHT: Is there a particular page counsel?
MS. SEDORE: Eleven. Ten and eleven.
THE WITNESS: Thank you. All right. Now once again you’re asking?
BY MS. SEDORE:
Q Did you ever discuss um, with her what had happened and that it didn’t seem to match up with what Mr. Burns had said and if she had any explanation for it and what she thought?
A I know--once again I see where I talked to her about the injuries with Dr. Mohr and what Dr. Mohr had stated to her.
Q Is there anything about her reaction to what the father had said happened?
A There’s quite a lot here so I apologize.
Q Take your time.
A Um, now you’re talking about the actual incident?
Q Yes.
A I see where I--what she talked about.
MR. CRONKRIGHT: Well I’m gonna object to him reading from his report. I think this was--
THE WITNESS: Oh oh okay I’m sorry.
MR. CRONKRIGHT: --he was having his memory refreshed your Honor.
THE WITNESS: Thank you.
MR. CRONKRIGHT: So now it would be appropriate to find out if his memory is refreshed and to recover the report and ask him to testify from memory if he can.
THE COURT: All right. Any response or do you agree?
MS. SEDORE: No I agree.
THE COURT: Okay.
MS. SEDORE: That’s fine.
THE COURT: Go ahead.
THE WITNESS: No I agree I’ve--I don’t know if I can answer the question though.
MS. SEDORE: Can you put the report down? Okay.
THE WITNESS: She just--I mean all I see here--I mean in the initial part I’m not sure if that’s what--is that she stated that how he told her about the baby lurching forward.
BY MS. SEDORE:
Q But I mean did you ever say to her this doesn’t make sense? I mean did you ever go there with her?
A I just can’t recollect the actual meaning.
Q All right. Did you ever--
A But I know I’ve--
MR. CRONKRIGHT: Well right now there’s not a question being asked--
THE WITNESS: Yep I’m not sure.
MR. CRONKRIGHT: --or if she’s trying to.
THE COURT: Go ahead Ms. Sedore. If you want to phrase the question.
MS. SEDORE: May I approach Judge?
THE COURT: Sure.
THE WITNESS: I read two pages.
MS. SEDORE: (Inaudible). I’m--so did you ever talk to Mrs. Burns about her husband’s behavior with the baby?
THE WITNESS: Um--
MS. SEDORE: In general? Parenting--
THE WITNESS: Yes.
BY MS. SEDORE:
Q Okay. Did you ever ask her whether he lost his temper or anything like that with the baby?
A I’m sure I did, but I don’t recollect--
Q May I show--
A --the conversation.
Q --you again your report?
A I’m sorry it’s been months.
Q Specifically referring to page 11. If you would read--
A Thank you.
Q --this paragraph and see if that refreshes your memory. Does that refresh your memory at all as to what I’m asking?
A It does.
Q So when you were asking about whether he’d ever lose his temper with the baby and that kind of thing what did she tell you?
A She talked about how he was a perfect dad.
Q Okay. Did she believe anything bad had happened with Naomi and him?
A None whatsoever.
Q One moment Judge. Can I see that report again? I’m sorry.
A It’s still separated.
Q Okay. Do you remember talking to the father, Joshua Burns, on the 31st of March? You testified you talked to him.
A (Non-verbal response).
Q All right. And talking to him about all the different ER visits?
A Uh-humph.
Q Yes? Okay. And do you remember talking to him about the ambulance ride that they took the first time from their house to the University of Michigan for the first U of M admission?
A I remember talking about the ambulance ride. I can’t remember if it was the first admission or not.
Q Okay. And do you remember him talking about they had to stop somewhere along the way?
A Because the child wasn’t breathing.
Q Is that what he told you?
A I believe that was what he said.
Q Okay. Okay. And um, when he was talking to you about that ambulance ride do you recall whether he said that he mentioned the fall incident with those EMT’s?
A Yes ma’am.
Q That he did or didn’t?
A I, I recall him saying he--I mean I’m not answering--with--at least multiple people for the multiple visits.
Q Okay. What--so you don’t have an independent memory of what I’m asking?
A I don’t--of the EMT’s I do remember him saying he talked to the hospital at the emergency rooms so I can’t recollect if it was the EMT’s or not.
MS. SEDORE: May I approach?
THE COURT: Sure.
MS. SEDORE: Do you think looking at your report might help again?
THE WITNESS: I’m sure it will.
MS. SEDORE: Referring to page 12. Read to yourself the first paragraph there.
THE WITNESS: Yes ma’am. Thank you.
MS. SEDORE: Does that refresh your memory?
THE WITNESS: That he did mention that story to them as well.
BY MS. SEDORE:
Q So he told you that he talked to the EMT’s in the ambulance about the fall?
A Yes ma’am.
Q And he told you that they said something about that right?
A That he had said something about--
Q That they had responded to him and said something about that in the ambulance?
A I read where he says he mentioned it to them.
Q Okay.
A I guess I needed to read a little further.
Q Okay. That will refresh your memory. And that was regarding the ambulance ride where they stopped at Green Oak right?
A Okay.
Q That he talked to the EMT’s about the fall he said right? And he also said that they responded to him is that right?
A Right.
Q What did he tell you?
A He stated that they said--nothing he could do about--I mean I don’t--
Q Basically dismissed it?
A Yes.
Q Is that what he said to you? Okay. And as a Child Protective Services worker in a case where you’ve got an infant and there’s a diagnosis of child abuse from um, such as this what is this the concern for the future of the child? Why does CPS intervene at all?
A Well there’s concern for further injuries to the child to they’re not getting the care they need. There’s also concerns for secure attachment.
Q I’m sorry what was that last part?
A Secure attachment. With--an individual child needs a secure attachment with a consistent body there.
Q Okay. Can I get the rest of that?
A Yeah I was gonna--
MS. SEDORE: I have no further questions of this witness Judge.
THE COURT: All right. Mr. Cronkright.
MR. CRONKRIGHT: Thank you your Honor.
CROSS-EXAMINATION
BY MR. CRONKRIGHT:
Q Mr. Wheeler do you have any medical training at all?
A No sir.
Q So does that make it so when you are called to investigate a child abuse where most of the evidence is medical evidence did you have to rely on the medical doctors for their opinions?
A Yes sir.
Q That’s what you did in this case?
A Yes sir.
Q And that medical--the--well did you, did you get medical opinions from doctors?
A Yes sir.
Q More than one?
A Just the ones that were with the child protection team.
Q How many doctors did you get medical input from?
A The main doctor I got medical input from was Dr. Mohr.
Q Okay. And your filing of the petition in this case was primarily as a result of your interaction with Dr. Mohr correct?
A Correct.
Q My understanding is that um, you talked to Dr. Mohr several times correct?
A Yes sir.
Q And it was your and Dr. Mohr that decided together to do the--or to attempt the demonstration with the doll is that correct?
A Yes sir.
Q And the doll was a doll that was of the same size and weight and agility as Naomi is that right?
A No sir.
Q Well why didn’t you get some doll that actually--accurately represented Naomi’s size and approximate agility or rigidity and that kind of thing and the same weight and that kind of thing before you attempted a demonstration?
A The demonstration was a basic idea to see how the baby might have fell and how he reacted to it.
Q And the doll that you selected to use was the one that Dr. Mohr had in her office correct?
A Yes sir.
Q Is it fair to describe that as kind of a Raggedy Ann kind of doll?
A No sir.
Q Was it plastic? Was it--what was it?
A To my recollection a cloth body, stuff body with the plastic arms and heads and legs.
Q Well that sounds like Raggedy Ann to me. What’s what’s the problem with describing it that way?
A Because that’s your opinion. My opinion Raggedy Ann is a little sewn together cloth doll.
Q In the event that it was a cloth doll how much did it weigh?
A I don’t know. I know it was a few pounds but I didn’t weigh it.
Q Okay. And just because your voice is soft sir I’m not trying to be rude--
A I didn’t weigh it.
Q --but you said something about two pounds. Did you say something about--did you approximate how much it weighed?
A No I said approximately a few pounds.
Q A few pounds. Okay. And how much did Naomi weigh at that time?
A I don’t know sir.
Q Well you were the investigator right? On the case.
A Yes and I had that information available to me. But I don’t know off my head six months later what she weighed.
Q All right.
A In April.
Q Fair enough. Now you said that Joshua was um, was cooperative and you described his demeanor just before the first demonstration in fairly positive terms. Do you recall that?
A Yes sir.
Q Had you had prior interaction with him on that same day?
A Just the interview.
Q Pardon?
A The interview prior--
Q What interview?
A --to--you mean prior to the child? The baby--I mean the baby doll to be clear is that what you’re asking me?
Q Yeah. So let me clarify because I can see that you didn’t follow the question. So let me try again. Had you met with Joshua and had any face to face contact with Joshua earlier in the day--earlier than the time that you showed up in his room with Dr. Mohr to do the demonstrate?
A Yes I did the interview of him.
Q Okay. All right. And um, were you present when--on any occasion when Dr. Mohr um, interviewed Joshua and Brenda?
A I don’t believe--on her interview with them? I know she talked to them when I was with them. But I don’t remember her interviewing them.
Q Was that before or after your interview of Joshua?
A She just had interactions with him, talking. Like I said I don’t remember doing any interviews with me.
Q All right. I’m talking now about you. Did you do an interview with Joshua?
A Yes I did an interview with Joshua.
Q Okay. So um did you do an interview of Joshua and Brenda on the same day?
A Yes sir.
Q And both of those interviews occurred before the demonstration?
A Yes sir.
Q So the sequence is first you interviewed--well let me just ask you. Who did you interview first?
A Brenda sir.
Q And so you separated Brenda and Joshua?
A Yes sir. Well--
Q And that--then after you interviewed Brenda did you immediately interview Joshua?
A Yes sir.
Q I’m sorry?
A Yes sir.
Q Okay. And after that did you go up to Dr. Mohr’s office and discuss things with her?
A No sir. I also interviewed Mr. Belcher.
Q And then after that did you go up to meet with Dr. Mohr?
A Uh yes sir. Yes sir.
Q And then the two of you returned with the doll?
A Uh yes sir.
Q Okay. So the last contact--the time you showed up with the doll--the last contact that Joshua had with you had been a face to face interview?
A Yes sir.
Q Okay. And that was earlier the same day?
A Yes sir.
Q Okay. And you described both Brenda and Joshua as being cooperative during your investigation and interview of them which is part of your investigation?
A Yes sir.
Q Did you get the sense that Joshua was upset at the conclusion of the interview?
A No sir.
Q Okay. Did you think that by the time you were done interviewing him that he had an understanding that you were investigating him for child abuse?
MR. GARTHOFF: Objection it calls for speculation, what the respondent father thought.
MR. CRONKRIGHT: Well I’m happy to rephrase it and put it in his prospective. Thank you counsel.
THE COURT: All right you’re going to rephrase?
MR. CRONKRIGHT: Yes.
THE COURT: All right. Go ahead.
BY MR. CRONKRIGHT:
Q Based on anything that you observed or anything that you said would it be reasonable for Joshua to have concluded at that point that you were investigating him for child abuse?
A He knew we were doing an investigation for child abuse. I have--whether he took it upon himself I don’t know.
Q And in spite of that he continued to be cooperative by doing the demonstration with the doll?
A Yes sir.
Q Correct?
A Yes sir.
Q All right. Now the prosecutor asked you questions about your conversation with my client’s wife, with Brenda. Um, so I was a bit interested in that conversation because it seemed like maybe you were encouraging Brenda to divorce Joshua. Is that true?
A No sir.
Q Did you ever have a conversation with her where you indicated to her that she would be in a better position with Naomi if she would get Joshua out of her life?
A To separate from Joshua might be in her best interest yes sir.
Q So you indicated to her that she should separate but you didn’t indicate to her that she should divorce is that right?
A Correct sir.
Q Okay. And did you ever tell her in any of your conversations with her that Joshua’s attorney was gonna throw her under the bus?
A No sir.
Q Now when--at the time you filed your petition did you file a petition in this case?
A Yes sir.
Q Are you the petitioner?
A Yes sir.
Q Did you read the petition before you filed it?
A Yes sir.
Q Did you draft it or did somebody draft it for you?
A I drafted it.
Q Okay. When you sign the petition do you vouch for the accuracy of the information that’s in the petition?
A Yes sir.
Q I understand. All right. So at the time you filed the petition was it your position to the Court that Joshua should have no contact whatsoever with Naomi?
A Um, I can’t recollect sir.
Q Would reference to the petition help you answer that question?
A I assume so.
Q Pardon?
A I’m assuming so.
Q Okay.
A I don’t remember in my petition stating no contact with Joshua.
Q Okay.
A If that’s what you’re asking.
Q Did you show up at the first hearing where that issue was discussed with the Court for the first time?
A Yes sir.
Q Was that the position you took at the hearing that Joshua should have no contact with Naomi?
MR. GARTHOFF: Objection. Relevance.
MR. CRONKRIGHT: We’ve gone a long way down this road your Honor with both the guardian ad litem and the prosecutor uh with countless times of references to my client not having any contact with Naomi. I think at this point it should just be candidly stated with the witness that filed the petition.
MR. GARTHOFF: So it’s been asked and answered then.
MR. CRONKRIGHT: Not by this witness.
THE COURT: And what’s the objection? Relevance right?
MR. GARTHOFF: Relevance to the allegations that are in front of the jury.
THE COURT: All right. What’s the relevance of what contact this Court allowed following the filing of the petition? What’s the relevance for this jury?
MR. CRONKRIGHT: You know I think that probably the first day of testimony that was my, my objection, but all of this is here. It’s all in front of the jury. Once they opened that door then I, I think now whether it was relevant before it’s certainly relevant now because the jury has--
MS. SEDORE: Can we approach?
MR. CRONKRIGHT: --heard his testimony about it.
THE COURT: Sure. Come on up.
(At 3:26 p.m., bench conference begins)
A
(At 3:26 p.m. bench conference begins)
MS. SEDORE: I was trying to clarify are you talking about the reading of the petition? What are you talking about?
MR. CRONKRIGHT: I’m talking about the jury already knows that Joshua’s had no contact. That’s been asked by the prosecutor, that’s been asked by the guardian ad litem, we’ve had extensive discussion--
MS. SEDORE: It’s been asked by you as well.
MR. CRONKRIGHT: I don’t want there to be a suggestion that that was Joshua’s choice or his decision. You know--
THE COURT: What is the relevance to whether--that’s a court order. That a was a legal determination. What’s the relevance to what--
MR. CRONKRIGHT: Oh I didn’t--
THE COURT: --the--what orders this Court puts in place with regard to parenting time, supervised, unsupervised, or or the finding in the orders.
MR. CRONKRIGHT: I didn’t ask what was in the order Judge. (Inaudible).
THE COURT: Okay.
MR. CRONKRIGHT: That wasn’t my question. I asked what his position was to the court whether he was requesting that Joshua not have any contact with Naomi. I don’t want to leave the jury with some kind of a (inaudible) my client just choices not to see Naomi or go to her medical appointments or whatever. I mean they opened the door for this conversation. I’m surprised (inaudible) testimony.
MR. BREWER: (Inaudible).
THE COURT: Well do--I don’t know if it got obj--I don’t remember this being--questions being asked about this but I don’t remember if there were any objections.
MS. SEDORE: You asked your client about this. Or somebody did. You did. Or one of you did.
MR. CRONKRIGHT: I didn’t.
MS. SEDORE: You didn’t ask questions?
MR. CRONKRIGHT: I did.
MS. SEDORE: It must have been Mr. Brewer.
THE COURT: Somebody asked questions and it wasn’t us.
MR. CRONKRIGHT: I haven’t asked my client any questions so--
THE COURT: Somebody--
MS. SEDORE: Well then it was Mr. Brewer.
THE COURT: --somebody asked questions--
MR. BREWER: No I did not.
THE COURT: --about--to him--
MS. SEDORE: (Inaudible).
THE COURT: --(inaudible) to him whether he’s been allowed to see her.
MR. CRONKRIGHT: Yeah it’s the prosecutor and the guardian ad litem they both--
MS. SEDORE: I didn’t.
MR. CRONKRIGHT: --covered on it. They both covered it.
MR. BREWER: (Inaudible).
MR. CRONKRIGHT: They’ve been asked about foster care, they’ve asked about safety plan, they’ve asked about the Belchers. They’ve asked about whether the parents were allowed to visit at the Belcher’s home or whether Joshua or Brenda were allowed to visit since then. And all--they keep--
MS. SEDORE: How is that not appropriate in a case where you were calling everybody involved the accuser.
MR. CRONKRIGHT: Well--
MS. SEDORE: To establish that they did have contact.
MR. CRONKRIGHT: It’s either appropriate or it’s not. I’m not now complaining about--
THE COURT: Well what his parenting time has been is really not relevant. It’s not relevant. I understand why you want to ask about it (inaudible) my memory is not so good. I don’t remember it being really touched on--
MR. CRONKRIGHT: Oh this has been put into play ad nauseam by the guardian ad litem--
MR. BREWER: They both asked--
MS. SEDORE: Not ad nauseam.
MR. CRONKRIGHT: --and the prosecutor.
MR. BREWER: They asked bot my client--
MR. GARTHOFF: I asked one question.
MR. CRONKRIGHT: I agree that the prosecutor has asked more about that. This door is flung wide open by (inaudible).
MR. BREWER: (Inaudible).
MS. SEDORE: I’m not objecting okay?
THE COURT: We’ve got an objection.
MR. CRONKRIGHT: I thought we were dealing with the prosecutor’s objection. Whose objection is--
MR. BREWER: No I’m--
MR. GARTHOFF: I objected.
MR. CRONKRIGHT: I’m a little confused obviously.
THE COURT: It’s Mr. Garthoff’s objection as to relevance. And you want to ask it because you feel it’s been delved into on testimony of another witness.
MR. CRONKRIGHT: Ad nauseam that my client has been excluded from going to any medical appointments, that my client’s been excluded from having any parenting time, and so forth. All I want to ask him is what was your position going into this case. What were you asking about the Court? I’m not gonna ask about the court order.
THE COURT: (Inaudible).
MR. CRONKRIGHT: I have no idea what counsel is saying.
THE COURT: Well that’s not going to be mentioned here.
MR. GARTHOFF: That’s--well that’s what I’m worried about the question well why not?
MR. CRONKRIGHT: What--I still--we’re not hearing what’s being discussed. Let me try again.
MR. GARTHOFF: What I’m saying is that okay the next question, what was your position? Well there was no parenting time. Why was that? And then if he talks about termination that should not be in front of this jury at all. So--
MR. CRONKRIGHT: Oh yeah.
MR. GARTHOFF: --(inaudible) with okay well why not.
MR. CRONKRIGHT: You know well I thought that going in that we shouldn’t be talking anything beyond the petition. So I didn’t think we should be talking about parenting time or any of that stuff, but I’m not going to ask a termination question of this witness.
THE COURT: All right. Do you agree based on your memory you agree that perhaps you asked questions of--
MR. GARTHOFF: I asked one question I said have you seen Naomi since the removal date?
MS. SEDORE: That’s relevant for a different purpose.
MR. GARTHOFF: And he said no I haven’t seen her for six and a half months or six months or (inaudible).
THE COURT: Okay.
MR. CRONKRIGHT: There’s been more than--no I remember his one question I do.
MR. GARTHOFF: That’s what I asked.
MR. CRONKRIGHT: But there’s been many more questions than that--
THE COURT: Okay what was the relevance of that?
MS. SEDORE: That the baby hasn’t has any further problems since (inaudible).
THE COURT: All right that’s the relevance of why--
MS. SEDORE: I mean that’s part of it.
MR. GARTHOFF: I’d have to double check my note I mean--
THE COURT: (Inaudible).
MR. GARTHOFF: It’s a week ago.
THE COURT: And you don’t want them left with the impression that he by choice has (Inaudible)?
MR. CRONKRIGHT: Right.
MS. SEDORE: Why not just ask it that way?
MR. CRONKRIGHT: I just think I want a clear record. You know I mean once we put all this information in front of the jury I think a little bit of a follow up is appropriate.
THE COURT: Well I don’t want--did you ever follow up with your client or follow up with--
MR. GARTHOFF: No he didn’t.
THE COURT: --was that by choice? Did you ever follow up with dad as to why he hasn’t seen her?
MR. CRONKRIGHT: I haven’t asked my client a single question when he was on the stand.
MR. BREWER: (Inaudible).
MR. GARTHOFF: He was going to call him--
THE COURT: That’s right.
MR. GARTHOFF: --in his case in chief. So he could follow up.
THE COURT: Okay.
MR. BREWER: (Inaudible).
MR. CRONKRIGHT: All right so both Dr. Mohr and Mr. Wheeler have commented on their concerns going forward which directly affected my client. And I can’t just leave all of that unanswered.
THE COURT: Because I--I mean I guess I’m concerned I don’t want any type of sympathy or anything like that to play in here. What kind of contact he’s had with her really is not relevant to the issues that they’re deciding. I don’t want to keep opening because if you ask him this question then it opens the door for them to follow up. And really bottom line is that’s not, that’s not even relevant to what they’re considering.
MR. CRONKRIGHT: Judge that’s--I didn’t--I’m just responding to the questions that we’ve heard over the last week from--I think this is all already in play. You can’t put it all out there and then tell me I can’t talk about it. I mean that’s just not fair to the respondent father. He has to be able to have some kind reasonable answer to put it in prospective for the jury.
MS. SEDORE: He can call his client.
MR. CRONKRIGHT: What’s that?
MS. SEDORE: You can call your client.
MR. CRONKRIGHT: I understand that. I will. But I still have a witness on the stand that has some information that’s important to the equation.
THE COURT: So your question is is what Mr. Wheeler’s position is.
MR. CRONKRIGHT: Going--no--
THE COURT: What his position--
MR. CRONKRIGHT: Going into the filing of the case what was his position? What did he ask of the Court?
THE COURT: What--so I guess that’s my--what’s the relevance of what Mr. Wheeler’s position is?
MR. CRONKRIGHT: Because he’s the petitioner. He’s the one that made the decision to ask the Court to keep my client away from his baby.
THE COURT: But again that’s a legal issue.
MR. CRONKRIGHT: No the legal--
THE COURT: That’s a legal issue that the Court decides. Mr. Wheeler could’ve argued to return the baby back. I mean what’s the relevance of that?
MR. CRONKRIGHT: Well maybe that’s what he’s gonna--
THE COURT: The Court didn’t--the Court--
MR. CRONKRIGHT: --say that it was the court did that and it had nothing to do with him. But the--
THE COURT: What’s the relevance to the what’s in this petition? To whether this Court should take jurisdiction? Again (inaudible). All right this is what I’m going to do. I really think maybe the question should be to your client if you--because it was asked of your client. I guess if you want to go in and repair any--so the jury is not mislead--
MR. CRONKRIGHT: Well it was asked of Brenda, it was asked of Dr. Mohr. There was all sorts of questions. The door about what’s happened post-petition in this case we talked about medical appointments, we talked about parenting time, you know all it. This isn’t just a client question.
MS. SEDORE: Because it’s relevant. The same way you brought up her medical findings from Friday. That’s why we’re talking about it. We’re not trying to (inaudible). The question is that the child’s welfare and the status in the home is at issue.
MR. CRONKRIGHT: Okay. So Judge I actually asked Brenda if she had been to the follow up. I never mentioned my client other people brought that up. I was very careful not to go beyond that.
MS. SEDORE: (Inaudible). I don’t recall (inaudible).
MR. CRONKRIGHT: So the jury now knows that my client’s (inaudible), hasn’t had parenting time, that he didn’t go to medical appointments and all of that. At least--
THE COURT: And that’s why court order. I mean do you want me to give an instruction? That he’s had no contact because of court order?
MR. CRONKRIGHT: No Judge. I just want an answer to the question what was your position? You’re the petition--
THE COURT: I mean that will really clarify it.
MR. CRONKRIGHT: What’s that?
THE COURT: That will really clarify it.
MR. CRONKRIGHT: No I’m not asking--
THE COURT: I don’t really want to give that.
MR. CRONKRIGHT: Oh no that would be highly prejudicial far beyond what we’ve already experienced. What we’ve experienced is that this area--this whole area has been vetted further. Do you think there’s any juror that doesn’t know my client hasn’t seen his daughter in over six months? Do you think there’s any juror that doesn’t know he hasn’t made a single medical appointment? Is there any juror that doesn’t know that he hasn’t any parenting time? You know that--all that information came from your questions from counsel other than me.
THE COURT: Okay. So--
MR. CRONKRIGHT: So all I want to know--
THE COURT: But I guess--
MR. CRONKRIGHT: --is--
THE COURT: --it went without objection.
MR. CRONKRIGHT: Oh I don’t think so.
THE COURT: And now it’s being objected to.
MR. CRONKRIGHT: I don’t that went without objection. I think--
THE COURT: I think it did because I think I would’ve remembered that.
MR. CRONKRIGHT: Look if they opened the door they opened the door. If I open the door you’re gonna let them go, go through it. I understand. That’s what you just told me. But the objection (inaudible) I objected and they still opened the door. You can’t let them put evidence out there and not let me put it in prospective.
THE COURT: All right I’ll let you--I’ll give you this one question. Don’t go any further into it. I don’t want to go any further into what contact they’ve had or haven’t had since the orders have been in place. I’ll allow you a little bit of leeway this one question with Mr. Wheeler.
MR. GARTHOFF: All right.
THE COURT: All right.
MR. GARTHOFF: Thank you Judge.
(At 3:37 p.m., bench conference ends)
THE COURT: Go ahead.
BY MR. CRONKRIGHT:
Q Mr. Wheeler do you remember the question I put before you?
A Uh you would have to ask it again sir just so I’m clear.
Q I’m happy to. At the time of filing the petition what did you ask--what was your position? What did you ask the Court for in regards to any contact that my client might have with his daughter?
A We asked for no physical contact.
Q Okay. No supervised, no nothing.
A No contact.
Q Okay. Now you talked about my client that he told you that he had a DUI?
A Yes sir.
Q Did he also tell you that he had been sober for three years?
A Yes sir.
Q Okay. You remember that?
A I remember reading that in my petition.
Q Have you been in my client’s house?
A Yes sir.
Q Okay. Did you ever see any alcohol in his house?
A No sir not that I observed.
Q Okay. Did you--okay are--you’re qualifying your answer so did you use some alcohol or do you know--
A I didn’t go to his house to observe alcohol so I didn’t see any no.
Q Okay. So let’s do it this way Mr. Wheeler if you would please tell the jury everything you know about um, how much alcohol was in the house at about the time of the filing of the petition?
A None that I know of.
Q Okay. So you have no evaluation whatsoever that my client had any alcohol?
A Wasn’t seeking it.
Q Did you do a drug screen on my client?
A Not that I recall.
Q You don’t recall that?
A No sir.
Q Okay. Did you do a drug screen on Brenda?
A Not that I recall.
Q Okay. So there’s already been some testimony when Brenda Burns was on the stand that you drug screened both of them and that the results were negative. Are you disputing that?
A No I said not that I recall.
Q Okay.
MS. SEDORE: And Judge I’m sorry that’s an improper question. If he wants to refresh his memory with some sort of report he can do that. But to ask him to comment on someone else’s testimony is just simply (inaudible).
MR. CRONKRIGHT: I think I have a question out there and answer and then an objection after the answer is out there. So I’m happy--
THE COURT: Well I can strike the answer because if you’re asking him to comment on the testimony of somebody else. Ask him what he remembers and if he doesn’t recall it that’s it. Or if you want to refresh his recollection do that.
BY MR. CRONKRIGHT:
Q Do you recall Dr. Mohr telling you that um, Naomi had no brain injury?
A Dr. Mohr telling me Naomi had no brain injury?
Q Yes.
A No I don’t recall that.
Q Okay. Do you know if that’s in your report?
A I don’t recall it so I don’t know if it’s in my report that she had no brain injury.
Q Would it help if I could refresh your memory from your report? I’m gonna reference you to page six paragraph nine investigative findings. And specifically the second paragraph would you take a look at that.
A The MRI was normal, there were no--
Q Don’t read out loud please.
A Sorry.
Q Does that refresh your memory?
A Yes. It refreshes my memory that I probably wrote that but--
Q Did Dr. Mohr tell you there was no brain injury?
A Not that I recall no. and in fact it says 360 degrees of--around the brain after that.
Q Well sir did you write in your report the MRI was normal, there were no fractures and no brain injury? Is that--
A That is my report yes.
Q Okay. Where would that information have come from if uh, if not from Dr. Mohr?
A Typo I don’t know. Otherwise I don’t recall Dr. Mohr telling me there was no brain injury.
Q Okay. Why did you separate mom and dad when you interviewed um, when you interviewed them?
A It’s a standard procedure. I always separate the parents. We never interview them together.
Q Were you trained to do that during an investigation?
A Yes ma--yes sir.
Q Okay. Do you recall in your testimony earlier when the prosecutor was asking you questions saying that you were erring on the side of caution?
A Yes sir.
Q What does it mean when a trained investigator says that he’s erring? Can--
A Well number one because Dr. Mohr had stated that they did see the injuries and it was indicative to abuse. But that there was also concerns that the family had raised about birth trauma. So we were trying to be very sure that it wasn’t an early reading on abuse before anything was done so that’s what I mean. And she wanted to get the rest of the test results before she told me for sure she believed it was abuse.
Q What does the word error mean as you use it? Does that mean make a mistake?
A It means to avoid making a mistake. To be, be cautious.
Q To err means to avoid making a mistake?
A Yes.
Q Okay.
A Not error but err.
Q My understanding from your testimony was that um, that there was some kind of an attempt at a demonstration and then the doll went flying and then there was a discussion including from my client Joshua saying that that’s not how it happened correct?
A Correct.
Q Okay. And then there was another demonstration of sorts and he placed the child on his knee in similar fashion only this time he grabbed the doll’s face and that time the doll didn’t go flying correct?
A Correct.
Q And the doll didn’t go flying in your opinion because the doll couldn’t go flying because he had grabbed the doll’s face correct?
A Correct.
Q So he in essence corrected the, the problem from the previous demonstration by grabbing the doll’s face correct?
A Correct.
Q And--okay. And--so then he moved his hand rapidly but to keep the doll from flying he grabbed onto it does that sound fair?
A I believe so.
Q Okay. All right. And did he--and I’m a little confused about the conversation. Do you actually remember the conversation that happened after that?
A With him?
Q Do you remember the conversation in the room after he did the second attempt at demonstrating?
A There wasn’t much of a conversation that I recollect.
Q So then if there wasn’t much of a conversation is it fair to say that he didn’t say there that’s exactly the way it happened? Is that fair? He did not say that right?
A I’m sorry say that again.
Q He did not say words to the affect there that’s the way it happened correct? The second time.
A No he ended it like that’s how it did.
Q Say that again? He ended what?
A Well he, he didn’t try to say oops that was wrong like he did the first attempt. He stopped which made us believe that’s how he did it.
Q And was there further conversation at that point that um, was agitated or heated or anything like that?
A No sir.
Q Okay. During the second demonstration do you think that Brenda was in the room?
A Once again I was focusing on him and the child. I really--I’ll be honest with you I don’t recall if she was or not.
Q My understanding is that in your conversations with Dr. Mohr you learned that her opinion was that even that demonstration such as it was wouldn’t explain the injuries to Naomi correct?
A You’re staying that Dr. Mohr had said that she believed that even with that it wouldn’t cause injuries is--
Q That’s what I’m asking.
A Yes sir.
Q She did say that?
A She did state that.
Q Okay.
A I believe so.
Q So um, you’re a parenting coach?
A I was yes sir.
Q Okay. Would you as either a CPS investigator or parenting coach advise a parent upon learning that their child is falling towards a hard surface to just let the child collide with the surface? Would that be your advice?
A No sir.
Q Okay. How many times have you heard the story at this point from Joshua Burns of Naomi being on his knee and falling? How many times has he described that to you?
A Well we talked about it during the interview. He demonstrated a couple of times and of course when he was talking about the story he told me how he told the story to the emergency room and others. So he did tell me how he had told the story.
Q Your first contact or your first opportunity to um, to hear that story would’ve been at the second um, during the second admission to the University of Michigan correct?
A When I interviewed him yes sir.
Q That was the first time you heard that story?
A Yes sir.
Q Okay. Now you obviously--and by the way what was the date--I know you probably said that before, but was the date when you made first contact with them face to face?
A I believe it was March 31st.
Q And was that also the first time you saw Joshua or Brenda in your life?
A Yes sir.
Q And was that the first time you saw Naomi in your life?
A Yes sir.
Q Okay. So you have no personal knowledge about um, whether the fall from the Joshua’s lap happened exactly like he said do you?
A No sir.
Q Okay. And you actually have no personal knowledge about whether Naomi, Naomi suffered any abusive con--cont--on behalf of my client or by my client do you?
A I’m sorry you lost me when you stumbled.
Q I’m happy to repeat it or try again. Maybe I can ask a better question. You had no personal knowledge about whether Naomi was abused at all do you?
A No sir.
Q And if you don’t have personal knowledge about whether Naomi was abused you certainly don’t have any personal knowledge about whether Joshua Burns abused Naomi is that fair? Is that fair?
A Yes sir.
Q Okay. This is perhaps my last question Mr. Meeler--Mr. Wheeler because my understanding is and just tell me if I’m write or wrong. The vast majority of your understanding about this case is based on medical input from Dr. Mohr and her assertion based on her medical findings that Naomi must have been abused is that fair?
A Yes sir.
MR. CRONKRIGHT: That’s all I have your Honor.
THE COURT: Mr. Brewer.
CROSS-EXAMINATION
BY MR. BREWER:
Q I’m gonna start where Mr. Cronkright finished off. You had testified when answering some questions to Ms. Sedore that um, you were waiting for the medical information to come back before making a decision in this case is that correct?
A For more information yes sir.
Q Because in fact you wanted--because the only evidence of any abuse in this situation is the medical evidence is that correct?
A Yes sir.
Q Only the medical evidence obtained by Dr. Mohr and the child protection team at U of M?
A Correct sir.
Q That’s the only thing you based your decision on?
A And the medical evidence.
Q And you’ve testified that you’ve had no personal knowledge of Brenda or Joshua correct?
A No sir.
Q I’m gonna ask you the same question. You have no personal knowledge that Brenda Burns ever in any way abused Naomi Burns is that correct?
A No sir.
Q In fact Brenda has no criminal history does she?
A Not that I saw sir.
Q Michigan or any other state?
A No sir.
Q And to your knowledge has she ever even had any police contact outside of anything--
MS. SEDORE: Objection as to relevance--
MR. BREWER: --as it relates to this case.
MS. SEDORE: --Judge. Police contact how--
MR. BREWER: Well I believe the petition that this gentleman authored, signed, and presented to the court indicates that as a result of criminality, depravity, etcetera that Naomi should come under the jurisdiction of this court.
THE COURT: So Ms. Sedore your objection is to police contacts?
MS. SEDORE: Yes.
THE COURT: It was not objected to as to any criminal history--
MS. SEDORE: I’ll just withdraw my objection.
THE COURT: Okay.
MS. SEDORE: That’s fine.
THE COURT: All right. Go ahead.
BY MR. BREWER:
Q You don’t know of any occasion that Brenda Burns has ever had any contact with the police do you?
A Not that I know of no.
Q Did you receive any information that there was ever any domestic violence situations in the home of Brenda or Joshua here in Michigan or any other state that they lived?
A Nothing shared by them no.
Q Did you--I’m sorry?
A Nothing. No.
Q Did you look into that?
A There was no criminal history for domestic violence for her.
Q I’m saying as it relates to the two of them in their house. Did you ever do anything to look as to whether or not there were calls to the police and the police ever came out--
A Yes we do.
Q I’m sorry?
A Yes we look at the police history, police calls to the house.
Q And there wasn’t any was there?
A No sir there wasn’t.
Q Did you look outside of here in Michigan? Did you look in any other state that they lived?
A Yes sir.
Q You didn’t find any did you?
A No sir.
Q And you testified that you came to their home is that correct?
A Yes sir.
Q You didn’t go to specifically look to see if they had any alcohol or anything--
A No sir. Specific--the main thing was to see that the child have a safe environment in the house and to see where the actual incident happened so that Mr. Burns could show me where the incident happened.
Q Okay. And how did you find their home?
A Appropriate.
Q I’m sorry?
A They had a safe environment for the child. The baby had the baby’s needs there.
Q And did Naomi have a room upstairs?
A Yes sir.
Q Did you go throughout the whole house?
A I went through most of the house. Yes sir.
Q Now you referenced--you’ve been asked a couple of questions regarding conversation that potentially--and I guess is shouldn’t assume anything. The conversation that you had with Brenda about separating from Joshua I’m assuming he wasn’t present for that?
A No sir.
Q Now was this at the hospital in your initial contact?
A No sir.
Q Where did this conversation take place?
A At the Belcher’s home.
Q Do you know approximately when this conversation took place?
A Uh, whatever that date--April 7th or whatever date as on there that I read from earlier. I can’t recollect the exact date.
Q And do you know was anybody else present or was it just you and Brenda?
A Uh to the best of my knowledge Ms. Belcher was present at first but I don’t know if she was present when her and I talked.
Q And was it your testimony that the, the depth of the conversation was you need to separate from Joshua for this to be better for you?
A To be honest my concern--what we share is that the prosecutor had stated that there had been concerns where other case where the husband’s attorney controls the things and the wife’s attorney lets the husband’s attorney do it and that sometimes by her not looking out for her best interest and the other attorney looking out for the husband’s best interest it could affect her.
Q So this was--you went into this line of questioning based on advice from the prosecutor that they passed to you to ask to give to--
A Yes sir.
Q --Brenda? Now I believe it was your testimony that if I have this right I don’t want to put words in your mouth. Did you testify that the Burns’ did not fit the profile and that’s why you were waiting for the tests to come back from the medical team?
A We have a risk assessment and they were low on the risk assessment. That’s’ what I meant.
Q Because the reason why you asked questions about domestic violence in the home, you look into substance abuse issues and things like that those are signs that would raise your awareness and perhaps put the child at more risk?
A Those are risk yes sir.
Q And so--and you just testified that they scored low on that assessment?
A Yes sir.
Q Now you prepared a protective services investigation report is that correct?
A Yes sir.
Q And you did that based on the information you obtained during your investigation?
A Uh-humph.
Q Is that yes?
A Yes sir. Yep.
Q And you signed it and authorized that is that correct?
A Yes sir.
Q Now you indicate--well let me ask you this. Are the details in that, are the details in that report thorough and complete? Thorough and complete?
A As thorough and complete to the best of knowledge yes sir.
Q Okay. And uh there’s a portion of that where you kind of fill in the information right? It’s not narrative it’s more filling in a box and--
A Filling in a box.
Q Okay. So there’s a section that talks about who was interviewed is that correct?
A I believe so yes sir.
Q And the people who are denoted as caretakers is that the parents?
A (Inaudible).
Q Is that yes?
A Yes sir.
Q I saw you shake your head but--
A I’m sorry yes sir.
Q That’s okay. And then you also checked on here that the alleged victim was interviewed. The alleged victim is Naomi?
A That’s, that’s--number one we have to let them know that the victim was seen. That interview box is that we talked to the child but because she can’t be interviewed of her age, but I do have to acknowledge that I did see the child.
Q Okay.
A That’s part of my requirements.
Q Okay. Cause--
A No she wasn’t interviewed but yes she--
Q Because there’s also a spot where you can check no and then there’s a line--a space where you can say if not why not right?
A Uh on the computer I’m not sure.
Q Would it refresh your memory--
A I mean if--
Q --if showed you that?
A --it’s there I’m sure it’s there but--
Q Okay. So you could have said no too young to talk but I did see her?
A Yes sir.
Q And that would’ve satisfied your requirements?
A Yes sir.
Q Now there’s also a spot that says all siblings and you checked that box for yes?
A Yes.
Q Now there’s no other siblings?
A There’s no siblings.
Q So is there a reason why you didn’t check no and then explain no other siblings?
A Because some of that--when it prints out--we have a grouped together in there so once again it could’ve been an error. And number one--or number two it was just stating that I interviewed it.
Q Okay. Now you would agree that you’ve reviewed a host--or you did review a host of medical records?
A Yes sir.
Q And you have information that the Burns’ Joshua and Brenda took Naomi to both the emergency room more than once?
A Yes sir.
Q And to the walk-in clinic at IHA in Brighton?
A Yes.
Q And that was all between March 16th and March 24th is that correct?
A Yes sir.
Q And uh, did you have any information regarding the trip to U of M on March 24th?
A I had information on the hospital visits.
Q And how serious was the condition of Naomi to your knowledge on that last trip to the University of Michigan?
A Fairly serious because of the stop with the ambulance ride if that was--if I’m remembering correctly.
Q Okay. So it’s accurate to say that Josh and Brenda acted appropriately in taking Naomi to the hospital that day correct?
A Yes sir.
Q Um, and presumably from march 16th to March 24th as well correct?
A Yes sir.
Q Now did you have any information during the course of your investigation that Naomi did have an issue with failing to thrive early on in her--after her birth?
A I do. I recall an instance of that. I might be wrong, but I do recall that there was some birth trauma.
Q Well I’m not talking about birth trauma. I’m talking about after she was born and failing to thrive as it related to eating and feeding?
A I don’t recall any failure to thrive.
Q Do--you don’t remember any conversations about that?
A Not that I recall no.
Q And did you gather any information as to whether or not Naomi had gone to her normal uh, well child scheduled checkups?
A Yes and she did.
Q And were there any concerns as to her health at any of those?
A Not that I recall.
Q Outside of the perhaps failing to thrive?
A (Inaudible).
Q I’m sorry?
(At 4:15 p.m., court reconvenes)
COURT RECORDER: Back on the record in the Naomi Burns matter file number 14-14708-NA.
THE COURT: All right. We’re back on the record. All the parties that previously appeared continue to appear. Are we ready to bring the jury back in?
MS. SEDORE: Yes.
MR. GARTHOFF: Yes.
MR. CRONKRIGHT: Yes.
THE COURT: All right let’s bring them. And I think we left off Mr. Garthoff it was your turn.
MR. GARTHOFF: Thank you.
DEPUTY KERR: All rise for the jury.
(At 4:16 a.m., jury enters courtroom)
THE COURT: All right. Welcome back. Please be seated. For the record the jury is now present. Mr. Wheeler is still on the witness stand. Mr. Wheeler I would remind you that you are still under oath okay?
THE WITNESS: Yes.
THE COURT: Mr. Garthoff.
CROSS-EXAMINATION
BY MR. GARTHOFF:
Q Mr. Wheeler we heard some discussion about a 3200. Can you explain that process to us?
A As far as the risk assessments and--
Q Well somebody files a 3200 is that right?
A Right.
Q And it goes to where?
A To uh, well actually they send it to centralized dispatch and central dispatch decides what county will handle it.
Q Okay. And to the best of your knowledge that’s what happened in this case is that correct?
A Yes sir.
Q And as you said it came to you because you’re an investigator in Livingston County is--
A Yes.
Q --true? All right. So when you’re handled--handed this case do you have a duty to investigate the case?
A Yes sir.
Q Okay. Part--does part of that duty entail talking to any medical providers?
A Yes sir.
Q Okay. And when you spoke to the medical providers did you have any reason to doubt what they were telling you?
A No sir.
Q And after your first meeting with the respondent parents is that when you filed your petition? Immediately?
A No sir.
Q Okay. Why did you wait?
A Because there was more testing that we wanted to be clear on.
Q Okay. Did you want to rule out any other medical causes?
A Yes sir.
Q Okay. Um, now there’s been some talk about your investigative report. Is the investigative report--when you complete that do you complete it on a computer?
A Yes sir.
Q Okay. And as you’re filling in the blank--I’m assuming there are blanks on the computer, is the way that we see it printed the same as it is on the computer screen?
A Not always.
Q Okay. So if there’s a box that needs to be checked it may be appear on the computer screen than it does on the report? Is that fair?
A No the boxes will be--I mean as far as the formatting and how it prints out it’s not the same.
Q You said the formatting is not the same.
MR. CRONKRIGHT: I object your Honor. I don’t understand the relevance to the formatting to an investigative report on the computer for this case?
MR. GARTHOFF: There were questions--for clarification your Honor there’s questions about that I believe from respondent mother’s counsel about boxes that were checked about siblings, about interviews with the um, victim, and that Mr. Wheeler--what I thought he was trying to explain was how the formatting was different and I was just trying to get clarification on that.
THE COURT: All right. I will allow it. Go ahead.
BY MR. GARTHOFF:
Q So did you administer the oral swabs to the respondent parents?
A Yes sir.
Q Okay. Can you explain that? How that process works?
A There’s a packet that’s sealed, of course you explain to the parent, you ask them if they voluntarily will do a screen. Then if they agree to it there’s a packet that’s sealed. It has an oral swab in it and actually they stick it under their tongue and it’s got an indicator window on it. And after they’ve soaked it with enough salvia to where a good test can be taken it will turn blue. Once turns blue we cap it off and send it off to a testing agency.
Q Okay. Do you know what um, substances that oral swab tests?
A Uh, yes lots. I mean drugs, alcohol, multiple types of drugs, even they can check for synthetic drugs like K2 as well.
Q Okay. Is there a specific window that that test is good for if you know?
A They have a high and low--or a low window yes sir.
Q Okay. I guess what I’m trying--if you give somebody that test today for example do you know how far back it would detect substances?
A It’s--each substance is different, some substance like heroin will only stay in your system for a few days so and marijuana can stay in there for 30 days. So it--each substance has its own timing.
Q Okay. Do you know what the timing for alcohol would be?
A Off the top of my head I don’t recollect.
Q Okay. Now there was some questions to you about personal knowledge. Do you know who would best have personal knowledge about any abuse that a child would endure?
A The parents.
Q Thank you.
MR. GARTHOFF: No further questions.
THE COURT: Ms. Sedore any redirect?
MS. SEDORE: Yes just briefly.
REDIRECT EXAMINATION
BY MS. SEDORE:
Q When you were testifying about an assistant prosecutor who talked with you about the situation with the lawyer and all this stuff, was that a different APA or was that me?
A No it wasn’t you.
MR. CRONKRIGHT: Objection relevance.
MS. SEDORE: It’s relevant because they brought it up as though I’m a fact witness to something and I’m not.
MR. CRONKRIGHT: Well I think--I don’t think I brought it up. I don’t know who, who--
MS. SEDORE: It was brought up.
THE COURT: There were questions about it. I’ll allow it. Go ahead.
BY MS. SEDORE:
Q Was that me or a different prosecuting attorney in our office?
A It was a different attorney.
Q Do you know for sure when you did these drug tests of the Burns if you tested for alcohol specifically?
A No ma’am.
Q You don’t know or you did not?
A No we didn’t specifically test for alcohol.
Q Okay. So when you do these drug tests you have to actually request what kind of tests you want done is that right?
A Yes sir. Yes ma’am. Sorry.
Q And in this case you didn’t test for alcohol?
A No ma’am.
MS. SEDORE: Nothing further.
THE COURT: Any other questions?
MR. CRONKRIGHT: No your Honor.
THE COURT: Mr. Cronkright? Mr. Brewer?
MR. BREWER: No.
THE COURT: Mr. Garthoff?
MR. GARTHOFF: No your Honor. Thank you.
THE COURT: All right. Let me go ahead and ask the jury, ladies and gentlemen of the jury do you have any questions for this witness. If you do if you want to pass them down the bailiff. Anyone else? I’ll have the attorneys approach. Thank you.
(At 4:22 p.m., bench conference begins)
THE COURT: All right we’ve got one.
MR. CRONKRIGHT: Told you. We’ve been a long ways down that road. We’re there. I think you should ask the question.
THE COURT: Any objections?
MR. GARTHOFF: I mean--well I just--I mean he’s the CPS investigator so he hands off the case at some point. So I mean based on what he knows and at that point.
THE COURT: Well the question was asked of him what was his position at filing with regard to contact with dad. So I’m not surprised that now they’re wanting to know.
MR. CRONKRIGHT: Yeah I’m not sure if that’s in response to that or a response to everything else that we’ve heard. We don’t know that. The point is well taken.
THE COURT: (Inaudible) there were some other questions about was she told to separate. There was a line of questioning about (inaudible) from him--
MR. CRONKRIGHT: Right.
THE COURT: --and look out for her best interest. (Inaudible).
MR. CRONKRIGHT: Yeah.
THE COURT: Are there any objections?
MR. CRONKRIGHT: I’m not objecting.
MS. SEDORE: No.
THE COURT: All right. Okay.
(At 4:22 p.m., bench conference ends)
THE COURT: All right. Mr. Wheeler, would Mrs. Burns have custody of Naomi, of Naomi if she was not supporting Mr. Burns?
THE WITNESS: I can’t state that--I mean that would be the jury’s decision. I’m not sure if I’m here to (inaudible).
THE COURT: Well I can--I’ll reread it. Would Mrs. Burns have custody of Naomi if she was not supporting Mr. Burns?
THE WITNESS: Are--I guess if it’s talking temporary custody it could’ve happened yes ma’am.
THE COURT: What do you mean?
THE WITNESS: If she wasn’t with Mr. Burns she could’ve been. I’m just saying the Court could’ve given her temporary custody instead of the child being with another family. But then again it would’ve been with no contact with Mr. Burns like before.
THE COURT: Okay. So that would’ve been perhaps the position of the department?
THE WITNESS: Yes ma’am.
THE COURT: You would’ve considered that?
THE WITNESS: It would’ve been considered.
THE COURT: All right. Any follow up questions based on that question from the lawyers?
MR. BREWER: I do your Honor.
THE COURT: All right. Go ahead.
RECROSS-EXAMINATION
BY MR. BREWER:
Q But ultimately that decision is not up to you is it?
A No sir.
Q Ultimately that could’ve been up to the Court--
A Yes sir.
Q --correct? Okay.
THE COURT: Any other questions?
MR. CRONKRIGHT: No your Honor.
THE COURT: All right members of the jury do you have any additional or follow up questions based on that? All right we’ve got one. All right if the lawyers want to come up.
(At 4:25 p.m., bench conference begins)
MR. CRONKRIGHT: (Inaudible). So I have two questions in my mind and I’m thinking out loud. Is it--what he’s done in other cases is irrelevant. And two is in light of the tenor of the case (inaudible) object. I mean generally we would focus on Naomi and her case.
THE COURT: (Inaudible) how many cases (inaudible). So do you have an objection?
MR. CRONKRIGHT: I’m thinking.
THE COURT: Because it’s not relevant about this case because it’s asking about other case or--
MR. CRONKRIGHT: Well if I was gonna make an objection that would be the one to make.
THE COURT: Okay.
MR. CRONKRIGHT: What do you think?
MR. GARTHOFF: (Inaudible). No objection.
MS. SEDORE: I don’t object to it. It doesn’t matter because the reason I think they’re asking this is because you’ve intimated that this is some sort of witch-hunt basically and that’s why they’re asking this.
MR. CRONKRIGHT: So you are objecting--
MS. SEDORE: No I’m not objecting.
THE COURT: You’re objecting?
MR. GARTHOFF: No no.
MR. CRONKRIGHT: Okay that’s fine.
MR. BREWER: Can I think for a second?
THE COURT: Yes.
MR. BREWER: Ten seconds maybe.
MR. CRONKRIGHT: This is an exercise in group objecting Judge.
THE COURT: You’re objecting? Okay. You are objecting?
MR. BREWER: (Inaudible).
MS. SEDORE: What?
MR. BREWER: I’m jumping on the bandwagon as to relevance as to how (inaudible). People already testified--he already testified that (inaudible) because of the medical records. I mean they can decide--
THE COURT: I--
MR. BREWER: --(inaudible). It’s in the jury instructions too.
THE COURT: Do you want to make an argument that it’s relevant for people who want to ask it? Because I’ll listen to an argument for how it’s relevant. Because based on Mr. Brewer’s arguing I don’t see how--what they’ve done in other cases how that’s relevant.
MR. CRONKRIGHT: Can I read the question one more time? See if it says--
THE COURT: So unless somebody wants to--
MR. CRONKRIGHT: --anything different.
THE COURT: --make an argument for--
MR. CRONKRIGHT: (Inaudible).
MR. BREWER: (Inaudible).
THE COURT: --how it’s relevant.
MS. SEDORE: That’s my concern they’ve gone with the (inaudible) you’re the accuser you’re this your that. That’s why they’re asking that question. That’s why I think it’s relevant because--
THE COURT: Okay.
MS. SEDORE: --it goes to show that he’s not doing this on some wild goose chase on this one case. I don’t know what his answer is gonna be that’s my guess.
THE COURT: (Inaudible) medical records and filed a petition based on--
MS. SEDORE: Yeah.
MR. GARTHOFF: (Inaudible) his answer is no.
MS. SEDORE: Then that’s it.
MR. BREWER: (Inaudible).
THE COURT: Well they didn’t say absence of physical injury. They said absence of visible injury.
MR. BREWER: (Inaudible). Jury instructions (inaudible).
THE COURT: What’s (inaudible)?
MR. BREWER: (Inaudible).
MR. GARTHOFF: Is it after proofs?
MR. BREWER: Yeah.
THE COURT: There’s a (inaudible). There’s nothing that says absence of physical injury (inaudible). Well I don’t think there’s a jury instruction in--based on the argument made as to why they could be asking. I think that it could be relevant. I mean there has been some argument raised that they’re somehow being singled out. That was the argument in the opening--
MR. CRONKRIGHT: Wait a minute--
THE COURT: --and that’s where some question has gone to--
MR. CRONKRIGHT: I did refer to Dr. Mohr--
THE COURT: --is that they’ve somehow been treated in an untraditional manner. They were separated. They were interviewed separately blah, blah, blah. There is some of that insinuated.
MR. BREWER: (Inaudible).
THE COURT: He was asked if that was standard procedure. So I guess you know can’t obviously ask the juror what his relevance is, but that’s where this gets tricky but--
MS. SEDORE: I think that makes sense.
MR. BREWER: (Inaudible) asked (inaudible).
THE COURT: So how is it not fair to then ask if it could be protocol to file petitions in the absence of physical injury? The same argument could cut your way too.
MR. CRONKRIGHT: Yeah the question is why--
THE COURT: You can look at it the same way. If you want to ask standard questions about what they do in their investigation. The juror wants to know was this kind of petition standard as well.
MR. BREWER: (Inaudible).
MS. SEDORE: But then you guys went through and said you don’t have any personal knowledge of A, B, C, D, E, F, G, H, I, J, K so you’ve addressed it.
MR. BREWER: (Inaudible).
MS. SEDORE: That’s why they’re asking it.
THE COURT: All right I’m going to overrule your objection. I’m going to ask it.
(At 4:32 p.m., bench conference ends)
THE COURT: All right. Mr. Wheeler--
THE WITNESS: Yes your Honor.
THE COURT: How many cases have you filed a petition for abuse in the absence of visible physical injury?
THE WITNESS: I can’t give a number, but I know there had been cases where it’s--I mean I know I had one where there was--
MR. CRONKRIGHT: Well objection it--
THE WITNESS: --multiple internal--
MR. CRONKRIGHT: Objection.
THE WITNESS: --injuries.
MR. CRONKRIGHT: Calls--the answer only can be a number. When you ask how many--
THE WITNESS: I can’t give a number.
MR. CRONKRIGHT: --that’s the only possible answer.
THE COURT: All right. Any--let’s just answer the question asked. Let’s stick with that.
THE WITNESS: More than this one, but I can’t give a specific number.
THE COURT: Okay. All right. Any follow up from the attorneys based on that question?
MR. CRONKRIGHT: No your Honor.
MS. SEDORE: No.
MR. GARTHOFF: No.
THE COURT: All right. And do the jurors have any follow up based on that question? If you do if you want to write it down and hand it to the bailiff. If you have any follow up questions? Anyone? Is that no by all? Okay. All right. May this witness be excused?
MS. SEDORE: Yes Judge.
THE COURT: Okay. All right. Thank you Mr. Wheeler.
THE WITNESS: Thank you.
THE COURT: You’re free to go. All right Ms. Sedore--
MS. SEDORE: I actually have a brief recall of Mrs. Burns that I’d like to do.
THE COURT: All right. All right. Let’s go ahead and recall Mrs. Burns. If you want to come on back up. I’m going to have you again raise your right hand to be sworn here.
COURT RECORDER: Do you solemnly swear or affirm that the testimony you’re about to give in this matter pending before the Court will be the whole truth and nothing but the truth?
MS. BURNS: I do.
THE COURT: All right. Go ahead and be seated and comfortable. And just go ahead and state your name for the record.
THE WITNESS: Brenda Jean Burns.
THE COURT: All right. Thank you. Ms. Sedore.
BRENDA JEAN BURNS
recalled as a witness at 4:34 p.m., testified as follows:
DIRECT EXAMINATION
BY MS. SEDORE:
Q You understand you’re under oath still right?
A Yes.
Q Okay. And I believe it was your testimony from earlier when you testified that when you took the baby to St. Joseph’s for the first ER visit, which I think would be 3-16, does that sounds correct?
A Yes ma'am.
Q That you had said that Naomi had had some diarrhea?
A Yes ma’am.
Q And you’ve reviewed the medical records correct?
A I have.
Q One moment. And you’ve reviewed the medical records you said yes?
A That's correct.
Q Okay. Wouldn’t the doctor have noted that as a main claim?
MR. CRONKRIGHT: Objection.
MS. SEDORE: Okay I’m sorry that calls for speculation.
BY MS. SEDORE:
Q Well you are nurse also correct?
A That's correct.
Q Okay. And when you told the hospital at St. Joseph’s on the 16th that Naomi had diarrhea did you explain what you meant?
A I believe we said she had one loose stool that morning.
MS. SEDORE: May I approach the witness?
THE COURT: Sure.
BY MS. SEDORE:
Q I’ll have you look at this, does this appear to be a physician’s note from St. Joe Hospital from the 3-16 treatment date of Naomi?
A Yes.
Q Does it say anywhere on there that you all reported a loose stool for Naomi?
A No.
Q Can you explain that?
MR. CRONKRIGHT: Objection. The form of the question. She’s being asked to explain why the medical record doesn’t say something. How could she possibly comment that? She didn’t--
THE COURT: Response?
MR. CRONKRIGHT: --(inaudible) the record.
MS. SEDORE: All right I’ll rephrase the question.
THE COURT: Okay.
BY MS. SEDORE:
Q Doesn’t it say on there there were two large stools?
A Yes.
Q Was that correct?
A I believe that was an error. We told them one.
Q And you say it was not just a large stool, you said a loose stool?
A You know I can’t recall specifically but it was large and loose. I don’t--I’m saying I don’t recall specifically what I said, but we remember it as large as loose.
Q When you say we remember it what does that mean?
A Josh and I we changed her diaper.
Q Do you have an independent memory of what happened?
A Yes.
Q Okay. And you have reviewed the medical records right?
A I have yeah.
Q Several times. When you went back on the next date--I’m sorry may I approach? On the 17th back to St. Joe’s did you tell them that she had diarrhea again?
A We said a loose green stool.
Q Did you say anything about diarrhea?
A I believe we said loose, green. Maybe we said diarrhea but I understand from Dr. Mohr’s perspective it should be--
Q But this wasn’t Dr. Mohr right?
A Right.
Q This is a different doctor from a different hospital correct?
A That's correct.
Q One moment. And then when you--I’m sorry let me back up. On the 16th what doctor was it that you saw?
A Dr. Rebecca Hess.
Q And who did you see on the 17th?
A Dr. Patricia Wells.
Q And you knew Dr. Wells right?
A Absolutely did not know Dr. Wells. I never met her in my life. Never. That was something that Mark Wheeler wrote in his report but it wasn’t true.
Q So you even know what I’m referring to don’t you?
A I did read his report and I do not know Dr. Wells. I don’t. I worked in the adult ER. I’ve never been to the pediatric ER in my life.
Q Did you tell him that they were familiar with you in the ER?
A I said the hospital was familiar to me.
Q Familiar to you?
A Correct. Because I work there.
Q Ma’am is it your opinion that your husband didn’t do anything to your child?
A Yes.
MR. CRONKRIGHT: Objection. How is this--I think she covered all of this the first time she had her on the stand. I don’t, I don’t know how this is appropriate recall for this witness.
THE COURT: So the objection is that this has already been covered.
MR. CRONKRIGHT: Asked and answered. Yes.
MS. SEDORE: I don’t know--
THE COURT: Response?
MS. SEDORE: --that we asked this specific question.
THE COURT: All right. I’ll allow it briefly. Go ahead.
THE WITNESS: Can you ask the question again?
BY MS. SEDORE:
Q Is it your opinion that your husband didn’t do anything to your daughter?
A That is my opinion.
MS. SEDORE: Nothing further.
THE COURT: All right.
MR. CRONKRIGHT: I have no questions your Honor.
THE COURT: Any questions Mr. Cronkright? Mr. Brewer?
MR. BREWER: No.
MR. GARTHOFF: No your Honor.
THE COURT: All right. All right well I’ll ask the members of the jury if they--do you have any questions for this witness though recalled I don’t know if anything has come up during this portion of the testimony. All right that no by all? All right. May she be excused for now?
MS. SEDORE: Yes.
THE COURT: All right you may step down. Thank you.
THE WITNESS: Thank you your Honor.
THE COURT: All right. All right Ms. Sedore you may call your next witness.
MS. SEDORE: I don’t have any further witness present for today Judge.
THE COURT: All right. You do have additional witnesses?
MS. SEDORE: I do.
THE COURT: Okay. Starting tomorrow morning?
MS. SEDORE: Yes.
THE COURT: All right. All right. This seems like a good time to break anyway. Um, so we--I’ll ask the members of the jury we’ll break for the day. I ask you to not talk about the case. And again don’t talk about it. Don’t do any outside or independent research. Stay away from any news of media reports. We’ll see you back here ready to go at 8:30 tomorrow for a full day tomorrow. Okay.
DEPUTY KERR: All rise.
(At 4:41 p.m., jury leaves courtroom)
THE COURT: All right. I think I heard the door click. Jury is no longer present. The parties are prepared to appear again tomorrow morning 8:30 for a full day. And Ms. Sedore you’ll continue to call witnesses?
MS. SEDORE: Well Judge I’m looking at my list and the problem I have is similar to what the defense had with an expert. We have Dr. Besirli the ophthalmologist that can testify and I would like to put him in my case chief however he’s only available tomorrow afternoon. And as I look at this I don’t think there’s anyone else I want to call. So I don’t know if this is something where we can again go out of order or if you’re gonna instruct me in my rebuttal instead. Because at that point I would be done with my case in chief. So I don’t know how the Court or the parties want to (inaudible).
MR. CRONKRIGHT: So I think I’m hearing that there’s not going to be a witness here in the morning because--
MS. SEDORE: I think my last witness is Dr. Quint and I found today that I don’t think he can testify until the afternoon. So yes I don’t have any other witness for tomorrow other--
MR. BREWER: You said Besirli.
MS. SEDORE: I’m sorry Besirli. Besirli.
THE COURT: Okay.
MR. CRONKRIGHT: Okay.
THE COURT: Do--are you prepared to--
MR. CRONKRIGHT: Yeah I think I’m prepared to proceed and I have to respect the courtesy that I was granted so it seems like the only reasonable thing for me is to accommodate the prosecutor. She obviously accommodated me in taking something out of order so I have Dr. Scheller. He’ll be on the ground in Detroit in two hours.
THE COURT: Okay.
MR. CRONKRIGHT: Prepared to go in the morning. And so for the benefit of counsel that is who I would call to fill that gap. And then presumably once again I’ll turn it back over to the prosecutor if that’s agreeable to the Court.
MS. SEDORE: I appreciate it. I don’t object to that.
THE COURT: Any objections? So you have another witness who is from out of town, flying in today?
MR. CRONKRIGHT: Tonight yes.
THE COURT: Tonight.
MR. CRONKRIGHT: In order to testify in the morning.
THE COURT: And could be available--
MR. CRONKRIGHT: At 8:30 ready to.
THE COURT: --first thing in the morning. Okay. All right. Any objections to taking them out of order again tomorrow? We’ll accommodate this witness being here first thing and accommodate your witness for the afternoon. Okay.
MR. CRONKRIGHT: I know you’ve already addressed this with the jury but it would seem appropriate to at least tell the jury that these kind of things happen and it’s not unusual when you have medical experts and we’re trying to accommodate schedules so I would appreciate that instruction.
THE COURT: All right. Any objection?
MS. SEDORE: No.
MR. BREWER: No objection.
MR. GARTHOFF: No.
MS. SEDORE: Thank you Judge.
THE COURT: Okay.
MR. GARTHOFF: Thank you.
THE COURT: See you in the morning.
(At 4:44 p.m., proceedings concluded)
STATE OF MICHIGAN )
)
COUNTY OF LIVINGSTON )
I certify that this transcript, consisting of 259 pages, is a complete, true, and correct transcript of the testimony and proceedings in this case on Monday, October 27, 2014.
Dated: January 20, 2015
Leah L. Hanna CER 6218
204 South Highlander Way, Suite 2
Howell, Michigan 48843
(517) 540-7818
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