From Deana Holmes on http://www.lisamcpherson.com URL for this memorandum http://www.lisamcpherson.com/final_frye_brief.htm IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA GENERAL CIVIL DIVISION

ESTATE OF LISA McPHERSON, by and through the Personal Representative, DELL LIEBREICH

Plaintiff,

vs. Case No. 00-5682-C1 Section 11 CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC.; JANIS JOHNSON; ALAIN KARTUZINSKI; and DAVID HOUGHTON,

Defendants. _________________________________/



THE PLAINTIFF’S MEMORANDUM OF LAW IN RESPONSE TO DEFENDANTS’ FRYE HEARING AND ESTATE’S REQUEST FOR ATTORNEY FEES AND COSTS

COMES NOW the ESTATE OF LISA McPHERSON and files its Response to the Request of Defendants to Exclude Evidence per Frye. The ESTATE would state that Frye is inapplicable to the opinions of the ESTATE’S experts since the Defendants’ experts do not take issue with the scientific principles which form the basis of the opinions, and if they now do, there is no basis to assert that the ESTATE’S experts’ opinions are premised upon new scientific principles. Therefore, the ESTATE requests attorney fees and costs incurred to respond to Defendants’ motion. Dr. Zumwalt, the Past President of the National Association of Medical Examiners, stated in his attached letter of November 19, 2001 (Exhibit 1):

Post mortem vitreous levels of urea nitrogen and creatinine are reliable for assessing pre-mortem dehydration. These tests have been accepted as scientifically valid for more than 20 years by forensic pathologists around the country.

Dr. Coe’s research is recognized internationally on diagnosing dehydration by the use of vitreous electrolytes. Dr. Derrick J Pounder, MB ChB, forensic pathologist and professor of forensic medicine at the University of Dundee, Scotland, UK, writes that "the analysis of vitreous humour from the eye taken at autopsy is an established method for the diagnosis of dehydration. The leading international authority in this field of post mortem biochemistry is Dr. John Coe...Post mortem blood is never used...Ketones are not necessarily found in dehydration..." Exhibit 9. The defense claims it could not find one case nationwide on using post mortem chemistries to ascertain ante mortem conditions. This is likely due to the fact that this science is not novel, it is based on biological and chemical principles as old as life itself, unlike the science of DNA. However, the Plaintiff did find one case which involves the use of vitreous to diagnose dehydration as the cause of death. Moore v. Massie, 1981 WL 6509 (Ohio App. 5 Dist.). Exhibit 10. Of course, Dr. Coe has testified many times using post mortem chemistries.

The defense had one expert with similar expertise of John Coe, M.D. and Calvin Bandt, M.D., William Sturner, M.D., who co-authored a peer-reviewed article with Dr. Coe. The defense has withdrawn him. The Estate suspects that since his research is closely aligned with that of Dr. Coe and Dr. Bandt, he would never participate in denigrating his colleagues or his own noted research. The defense challenges the research of Drs. Coe, Bandt and Sturner with "experts" who have never published on the use of post mortem vitreous as the best reflection of antemortem serum conditions. The experts for the defense attack the validity and reliability of post-mortem chemistry analysis with statements such as "I don’t do it and it doesn’t make sense to me." That type of opinion should be stricken under Frye.



I. SUMMARY OF ARGUMENT.

The Defendants’ experts recognize that vitreous chemistries are helpful. See Michael Baden’s opinions discussed below.[1] It is therefore not "junk science." They take issue with using it exclusively to diagnose dehydration as a cause of death. First, none of Plaintiff’s experts use it exclusively. Second, contrary to the defense argument, there is plenty of evidence before and during the autopsy to diagnose death by dehydration. The vitreous simply measures the dehydration’s severity. Therefore, the Frye motion filed by the Defendants is improper in that they raise issues that only go to the weight of the testimony, a subject for cross-examination, not a Frye test. Ft. Harrison Hotel, 12/5/95: "majorly dehydrated...everything really dry. (Defendant, Janice Johnson, M.D., Scientologist).

Hospital ER, 12/5/95: "And did she look dehydrated, yes. ... hollow-eyed, skin very thin... " (former Defendant, David Minkoff, M.D., ER physician and Scientologist.)



Even with the above admission by defendant, Johnson, and by former defendant, Minkoff, the experts of Scientology, Michael Baden. M.D. and Cyril Wecht, M.D. , both forensic pathologists, opine Lisa McPherson was not dehydrated in appearance and therefore it is error to look at the post mortem chemistries. However, defense experts admit that vitreous electrolytes are the best indicators of antemortem blood electrolytes. They simply argue that the McPherson postmortem test results of fluid, although collected at autopsy in less than 14 hours after death, cannot be relied upon since the vitreous results conflict with physical findings at autopsy and the testimony of FLAG staff. They apparently ignore the testimony of Robert Davis, M.D., Joan Wood, M.D., David Minkoff, M.D., Janice Johnson, M.D., attendant staffer Rita Boykin, attendant staffer Heather Hof Petzold, the ER personnel, and the two autopsy technicians, Stodgell and Daerr. They also argue that the vitreous is unreliable since it was first tested 57 days after death. Defendants claim that waiting 57 days indicates that Dr. Davis and Dr. Wood did not suspect dehydration at the time of autopsy. However, Dr. Wood has testified that she told Dr. Davis to send out the vitreous for testing on December 6, 1995. He did send out the cerebral spinal fluid, but he forgot to send out the vitreous. She then reminded him to send it out in January 1996. (Exhibit 2 - Wood State Attorney Interview, 6/00, p49:25).

The manner of storage complied with ARUP standards, i.e., kept frozen up to six months, which standard is Exhibit 72 to Flag’s motion! Other tests conducted four years and six years later on the vitreous and spinal fluid, under the watchful eye of Alan Wu PhD., confirm the first test. Scientology has no credible evidence that the vitreous was improperly collected, stored, shipped, or tested. They argue chain of custody, when there are inventory records and shipping records. In fact, Scientology’s experts all testify that they find no fault in the manner of testing or the results of the tests. They simply speculate that the samples must be faulty because the test results make no sense to them. That position is itself unscientific. The truth is the vitreous test results put the entire blame of the death of Lisa on the defendants. As will be seen below, the testimony of Scientology’s own experts and the Exhibit articles and letters from pathologists support the theory and practice of vitreous testing and the science that vitreous testing is the most reliable test to objectively demonstrate objectively the severity of dehydration, i.e., electrolyte imbalance, which causes death. Under no circumstances did Lisa McPherson die from a pulmonary embolism because: ! the microscopic slides show that there is no total occlusion of the left pulmonary artery.

! the only clots present at autopsy were postmortem.

! even if antemortem, clots only partially blocked small vessels of 1mm or less, while the left pulmonary artery is 15mm in diameter!

! no physical evidence of dilation of right heart chamber or heavy lung.

In order for a person to die from pulmonary blockage, there must be at least a 60% blockage of the total vascular bed per recognized textbooks on pulmonary problems and per the only pulmonologist who has testified in this case, Lawrence Repsher, M.D. Finally, there is abundant physical evidence from autopsy that demonstrates death by dehydration, a death that is not accidental but has been ruled a "homicide" by three independent medical examiners retained by the ESTATE, Drs. Coe, Bandt, and Spitz.



II. NO NEED FOR A FRYE HEARING.

. . . pure opinion testimony, such as an expert's opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert's personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Profile testimony, on the other hand, by its nature necessarily relies on some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The jury will naturally assume that the scientific principles underlying the expert's conclusion are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. See Stokes, 548 So.2d at 193-94 ("[A] courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use."). (Emphasis added). Flanagan v. State, 625 So.2d 827 (Fla., 1993).

The particular scientific test Scientology desires to have the court strike is the postmortem chemistry analysis, in particular, the vitreous testing at Wuesthoff Hospital Laboratory in January and February of 1996. Without this objective and demonstrable test result, the jury will simply hear experts subjectively express their "personal opinions" as to the presence and severity of dehydration in the cause of death of Lisa McPherson. The vitreous test result is the "picture" of the scene.

Of course, Scientology has the right to challenge the scientific test, but it is being intellectually dishonest to take the position that postmortem vitreous testing is not generally accepted in the scientific community. Scientology can challenge the Estate’s experts’ credentials and the methods used for extraction, storage, transportation, and instrument testing. It can also try to persuade the jury that the specimens are too old to be reliable. However, this goes only to the weight of the testimony on cross examination, not to the science behind the opinions. No credible expert can state that vitreous is not generally accepted to assist and sometimes exclusively be relied upon for diagnosing dehydration. 244 8 I mean you have situations you

9 mention, supposing the death is unknown, then would 10 vitreous be helpfully. And I said yes, it could 11 be. In this instance we have a cause of death. She 12 died of pulmonary embolism. So it isn't an unknown 13 cause of death. 14 And what's being added here is vitreous is 15 being added to try and challenge an existing cause 16 of death by saying instead of dying of pulmonary 17 embolism secondary to car accident, whatever, she 18 died of dehydration which may or may not have been 19 contributed to pulmonary embolism. (Dr. Michael Baden Deposition - Exhibit 4)

This sums up Scientology’s attempt to exclude the vitreous testing results. The issue is not whether vitreous electrolyte analysis to determine antemortem conditions is a new scientific principle. It clearly is not. Rather, Scientology attempts to exclude all the postmortem chemistries because the results conflict with Scientology’s position on the physical evidence and theory of death. If there is a conflict between the physical findings and chemistry tests, which there is not, then that only goes to the weight of the evidence for cross examination. This is not the purpose of a Frye hearing. For this reason, the Estate requests attorney fees and all costs associated with the pursuit of the Frye hearing by FLAG.

The Frye evidentiary hearing is only necessary if the party is relying upon new scientific principles. Wells v. State, ___So.2d___, 26 Fla. L. Weekly D1658 (Fla 5th DCA, July 6, 2001 - Exhibit 5) In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand. The trial judge has the sole responsibility to determine this question. The general acceptance under the Frye test must be established by a preponderance of the evidence. Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995), citing in Brim v. State, 695 So.2d 268 (1997 - Exhibit 6)

The Frye court ruled:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). (Emphasis added). Brim v. State, 695 So.2d 268, 270 ( Fla., 1997 - Exhibit 7)



In Brim, the court was concerned with the admissibility of DNA testing, which is a two part test. The first part simply relied "upon principles of molecular biology and chemistry," i.e., two samples look the same. The second step is the "calculation of population frequency statistics (which is) based on principles of statistics and population genetics. Accordingly, calculation techniques used in determining and reporting DNA population frequencies must also satisfy the Frye test." Since there were many methods used to calculate and determine frequencies, the court held that the selected method must be generally used. There is only one way to use vitreous analysis to determine antemortem values and that is the recognized way established by Dr. Coe. There is not a scintilla of argument raised by the Defendants that the ESTATE’s experts’ opinions as to the cause of death of Lisa McPherson from severe dehydration is based on any new scientific principle. Defendants merely argue the weight of the expert testimony, i.e., the Plaintiff’s experts change their testimony, which they do not, or they conflict with each other, which they do not, or articles or portions of textbooks do not support the bases of the opinions expressed, which is also not correct. The reason to reject the Frye challenge is that the defense’s argument has nothing to do with new or novel scientific principles. Dr. Baden sums up the defense position quite well when he says that it is novel because he does not use vitreous to assist in diagnosing dehydration. 163 23 Q. In any of their testimony in rendering 24 opinions, do any of their opinions involve novel 25 scientific evidence? 1 A. Well, I think the novel scientific 2 evidence, yes, in my opinion, is trying to use the 3 vitreous in this case to make a diagnosis that Lisa 4 McPherson was severely dehydrated when she died or 5 that in any way the status of her electrolyte 6 balance contributed or caused her death in any way. 7 I think that's a novel use of vitreous findings or 8 of spinal fluid findings, in my opinion. (Baden Deposition - Exhibit 4)

And as un-scientific as it gets, Dr. Baden simply refused to consider the many internally consistent postmortem chemistry results simply because it did not make any sense to him.

188 16 . . . What I'm

17 saying is there's some alteration or some 18 abnormality in what's in those containers that 19 occurred over time. That I don't know why they're 20 -- why they're bad specimens, but they don't make 21 sense. If they don't make sense, something's 22 wrong.

194 1 And I don't know why it doesn't 2 make sense, but it doesn't. And I think that we're 3 being asked to use a technology that's being put to 4 a new use and hasn't been proven in this regard, 5 both in dehydration and the length of time since it 6 was taken into -- from the body.

197 24 I think vitreous can be useful in 25 determining hydration. They're not sufficient to 198 1 make a diagnosis of death due to dehydration. 2 What I'm saying is I've never read in the 3 literature, and there is no published study on it if 4 it doesn't happen, a diagnosis that somebody died, 5 died of dehydration, based only on vitreous, which 6 is sufficient to say everybody else who's taken care 7 of her is lying

However, Dr. Baden concedes as he must that vitreous is the best fluid to correctly reflect antemortem conditions. 206 1 A. I think what's fair is, when it comes to 2 electrolytes, that because the electrolytes change 3 so quickly after death in the blood, that vitreous 4 is a better indicator of electrolytes, if they're 5 taking the vitreous right after death, than blood 6 is. Spinal fluid is somewhere in between.

207 5 It isn't widely used 6 at all for electrolytes because -- number one, and I 7 think it's very unusual to try to use it to make a 8 diagnosis of dehydration, and it's not sufficient by 9 itself to make that diagnosis.

244 8 I mean you have situations you 9 mention, supposing the death is unknown, then would 10 vitreous be helpfully. And I said yes, it could

11 be. In this instance we have a cause of death. She 12 died of pulmonary embolism. So it isn't an unknown 13 cause of death.

That is not the Frye test standard. In fact, just because Dr. Baden or Dr. Wecht, who as forensic pathologists, do not use vitreous to help diagnose dehydration, contrary to the text relied upon by the defense and the international community, does not mean that other pathologists in the forensic community do not use the science of postmortem chemistry analysis to diagnose dehydration. See exhibit 9. Consequently, the opinions of Drs. Baden and Wecht should be excluded under Frye. The medical journal articles relied upon by the Defendants actually support the opinions of the ESTATE’s experts and show without question that novel scientific principles are not the basis of any of the opinions set forth by the ESTATE’s experts. The position of Defendants is, therefore, so frivolous, devoid of any scientific issue in fact, that their pursuit of a Frye issue should mandate costs and attorney fees under '57.105, Florida Statutes. Furthermore, the Defendants’ experts’ attempt to refute the obvious and established scientific evidence by rank speculation should be excluded per Frye. It is not the focus of a Frye hearing to strike opinion evidence because the opposing party alleges it is based on "junk science." Rather, if an expert has an opinion to assist the trier of fact that is based upon "scientific information," then "[A]ny deficiencies in the experts' opinions are appropriate matters for cross-examination and consideration by the jury." David v. National Railroad Passenger Corporation, ___So.2d___, 26 Fla. L. Weekly D1996 (Fla. 2nd DCA, Aug. 17, 2001 - Exhibit 8).

As will be abundantly clear, the ESTATE’s experts do not base their opinion on junk science or new scientific principles. Their opinions are based upon the physical evidence and medical science originating in 1923 on the stability of certain analytes that are determinative of electrolyte imbalance, a lethal condition brought on by profound dehydration. It is irrefutable that a majority of the community of forensic science accepts the use of vitreous chemistries to establish dehydration, when other physical findings suggest it or where other causes of death are ruled out and dehydration remains the only reasonable basis, or where anatomical findings are inconclusive. Attached are letters (Exhibit 9) from noted forensic pathologists and medical examiners working in major metropolitan areas who unquestionably state that vitreous is routinely used to diagnose dehydration: 1. Ross E. Zumwalt, M.D., Chief Medical Investigator State of New Mexico, Albuquerque, New Mexico;

2. Charles S. Hirsch, M.D., Chief Medical Examiner, Dept. of Health, Office of Chief Medical Examiner, New York, N.Y.

3. Brian D. Blackbourne, M.D.,County of San Diego Medical Examiner, San Diego, CA;

4. Michael Graham, MD., Chief Medical Examiner, City of St. Louis, MO;

5. Edmund R. Donoghue, M.D., Chief Medical Examiner, Chicago, IL.;

6. Boyd G. Stephens, M.D., Chief Medical Examiner, San Francisco, CA;

7. Marcella F. Fierro, M.D., Chief Medical Examiner, Commonwealth of Virginia, Richmond, Va.;

8. Garry F. Peterson M.D. Hennepin County Medical Examiner, Minneapolis, Minn;



9. Joseph Davis, M.D., Retired Chief Medical Examiner Miami-Dade County, Miami, FL;

10. Jeffrey Jentzen, M.D., Chief Medical Examiner, Milwaukee County, Milwaukee, Wisconsin;

11. Vernard I. Adams, M.D., Chief Medical Examiner Hillsborough County, Tampa, FL.

12. Derrick J. Pounder, MB, ChB, Pathologist, Professor of Forensic Medicine, University of Dundee, Dundee, Scotland

The Defendants also attach letters from pathologists, FLAG’S Exhibit 59: Joseph P. Pestaner, M.D., of Baltimore, with a four-page C.V.; James A. Gibbs, M.D., of James A. Gibbs, Inc., who has no published works and owns and operates the California Cytology Center; Edward T. Konno, M.D., of Bloomfield Hills, Michigan, with a two-page C.V. and no publications; Roland Kohr, M.D. of Terra Haute, IN, with a four-page C.V. with nine publications, none involving postmortem chemistries; Michael S. Handler, M.D. of Overland Park, Kansas, with a 5 page C.V. and publications in diseases of issues not involved in this case; Mark A. Super, M.D., four and one-half-page C.V. with publications concerning no issue in this case; Fazlollah Loghmanee, M.D., eight-page C.V. with perhaps one journal article on issues involved in this case; Larry I. Giltman, M.D., of Dunwoody, GA., a hospital pathologist with a 27-page C.V. with publications with apparent inclusive articles of issues involved in this case; Jack Paston, M.D., of Saratoga Springs, NY, with a one-page C.V.; Arnold R. Josselson, M.D., of Fairfield, CA, with a four page C.V. and publications mostly on ballistics and no issues in this case.

All of the above pathologists in FLAG’S Exhibit 59 opine that postmortem chemistries should not be exclusively relied upon to determine or diagnose cause of death. Those findings should first be used in comparison to the anatomical autopsy. The ESTATE’s experts agree. Another reason why a Frye hearing should be considered improper in this case. As in this case, The importance of the postmortem chemistries is to assist in determining cause of death when the anatomical is absent a definitive cause or if the extent of a chemical cause such as dehydration, needs to be calculated. Without the postmortem chemistries, one could argue on the extent of the dehydration seen in the gross anatomical examination. With the postmortem chemistries being consistent and "glued" together with the physical test of osmolality, there is no question that the death of Lisa McPherson was caused not just by dehydration, but by "profound" or "severe" dehydration. The Defendants’ falsely assert that there is no physical evidence of dehydration. However, testimony of FLAG staff establish Lisa was "majorly dehydrated" prior to death and at autopsy there were reported signs of dehydration in the autopsy protocol of the gross and internal examination. In addition, empirical evidence of dehydration is found in the autopsy pictures and the autopsy microscopic slides. In a Frye hearing, the Second DCA has set the issue as follows:

"the tests in question were sufficiently reliable to justify their admission." Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA, 1969 - Exhibit 11)



When determining whether to admit expert testimony about a new scientific theory, courts in Florida employ a four-step process. Once a court discerns that expert testimony would assist the jury, a point not contested in this appeal, it must then conduct a Frye hearing to "decide whether the expert's testimony is based on a scientific principle or discovery that is 'sufficiently established to have gained general acceptance in the particular field in which it belongs.' " Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (quoting Frye ). In order to make this determination, the court should generally conduct an evidentiary hearing. As the Ramirez court noted, "a hearing on the admissibility of novel scientific evidence is an adversarial proceeding in which conflicting evidence is presented to the trial judge as the trier of fact." Id. at 1168; see also Brim v. State, 779 So.2d 427, 434 (Fla. 2d DCA 2000) ("Brim II ") (explaining that "a trial judge involved in a Frye hearing must listen to the scientific evidence and resolve any disputed question of fact using the same method employed in any other nonjury hearing."); but see U.S. Sugar Corp. v. Henson, 26 Fla. L. Weekly D1062 (Fla. 1st DCA Apr. 20, 2001) (remarking that Ramirez does not mandate an evidentiary hearing on Frye issues). . . . Because our record indicates there is some debate in the scientific community about whether repetitive motion can cause carpal tunnel syndrome, we point out that the circuit court's role is to determine whether the "basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim I, 695 So.2d at 272. However, as the Brim I court went on to observe, this test does not require unanimity in the scientific community.



It is clear that scientific unanimity is not a precondition to a finding of general acceptance in the scientific community. People v. Dalcollo, 282 Ill.App.3d 944, 218 Ill. Dec. 435, 445, 669 N.E.2d 378, 387 (1996). Instead, general acceptance in the scientific community can be established "if use of the technique is supported by a clear majority of the members of that community." People v. Guerra, 37 Cal.3d 385, 208 Cal.Rptr. 162, 183, 690 P.2d 635, 656 (1984). "Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value...." People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 678, 882 P.2d 321, 336-37 (1994). Therefore, while a "nose count" is not alone sufficient to establish general acceptance in the scientific community, such acceptance likewise need not be predicated upon a unanimous view. David v. National Railroad Passenger Corporation, ___So.2d___, 26 Fla. L. Weekly D1996 (Fla 2nd DCA, Aug. 17, 2001) (Exhibit 8).



III. DEFENDANTS’ ATTACK

Defendants allege the ESTATE’s scientific medical opinions of its experts are based on new scientific principles. They attack the science of the evidence in five ways: 1. The specimens: 57 day old and four year old frozen vitreous, six year old refrigerated cerebral final fluid, (CSF), and four year old frozen serum are all too old to be reliable to reflect antemortem serum chemistries, and therefore, not acceptable in the forensic community.

2. It is not generally accepted in the forensic community to rely on postmortem chemistries exclusively to determine death caused by severe dehydration, "particularly when physical autopsy conflicts."

3. It is not generally accepted in the forensic community that dehydration is a risk factor for thrombosis.

4. The methodology (sic) of the testing done on the fluids, including the shipping, mishandling, storage, and chain of custody tested after stable biochemical life span expired is not generally accepted in the forensic community.

5. The testing instrument, the Beckman, is not designed or certified for testing postmortem chemistries.

The above attacks are attacks against the weight of the evidence, something more appropriate for cross examination. David v. National Railroad Passenger Corporation, ___So.2d___, 26 Fla. L. Weekly D1996 (Fla. 2nd DCA, Aug. 17, 2001) (Exhibit 8). Notwithstanding, the ESTATE will gladly meet its burden by the preponderance of the evidence in showing that its expert opinions in the above five areas are sound and based upon established scientific principles.



IV. PHYSICAL EVIDENCE OF DEHYDRATION.

Incredibly, the defense argues that there is no physical evidence of Lisa’s dehydration. All of the evidence of dehydration comes from FLAG staff and records, as well as the physical autopsy. Contrary to the defense position, the ESTATE’s experts do not rely exclusively upon the vitreous tests. Their opinions also rest on the following. 1. PRIOR TO AUTOPSY.

The first indication of Lisa’s dehydration came from MLO nurse, Judy Goldsberry-Weber, who testified that another Lisa attendant, librarian Alice von Grundelle, came to the MLO office asking about dehydration. 402 20 A. Alice VanGondell asked me -- she came into the MLO 21 office because I was there by myself. And she 22 wanted to know what a person -- how a person would 403 1 act if they didn't get enough liquids or enough to 2 eat. 3 So I got out some of the books I had and let -- 4 you know, I gave her the definition of that. 5 Dehydration was what she specifically asked me 6 about, gave her that and let her evaluate. 7 I -- she asked me if -- in my nursing if I had 8 ever taken care of people that had a dehydration 9 problem and how they behaved, and I gave her an 10 affirmative, yes, I had. 11 And it was not uncommon for them to behave 12 irrational for a short period of -- give them 13 enough fluids or whatever, you know, you get help 14 and turn -- you can turn it around in a matter of 15 hours was what I -- in my previous experience it 16 had happened. 17 And I said, "If you have concerns, you need to 18 let it be known what your concerns are to the 19 proper people." At which time I do know she said 20 she wrote up a report. 21 And I don't know where -- you know, I wasn't 22 privileged to where it happened. That's the only

404 1 privilege I have is what she asked me. (Goldsberry-Weber deposition of March 28, 2000 - Exhibit 12)

Weber estimates that Alice came to see her in the MLO about 10 days after the isolation watch began. (p407:17-20). This would make it around November 28, 1995. Von Grundelle had written a report dated November 22, 1995, stating that Lisa was very violent and that Lisa’s breath was foul. (Log, Bates # FSO 00745-00746 - Exhibit 13.) Foul breath is a sign of uremia, i.e., too much urea in system that the kidneys are unable to discharge. She also wrote that Lisa looked sick with fever. Although Weber states above that Von Grundelle wrote a report on dehydration, no such report has been produced by the Defendants. A Knowledge Report has been produced, but it omits dehydration concerns. In fact, many reports of the attendants have not been produced. On a log written by Lisa attendant Rita Boykin, dated November 30, 1995, commencing at 9 p.m., there is an entry timed at 1 a.m., which would be December 1, 1995, and states that Janice Johnson had just visited and stated that Lisa needed a "quart of fluid." (Log, Bates # FSO 00149 - Exhibit 13.) At or around 9:15 a.m., Boykin writes that her co-attendant, Sylvia de la Vega, went Acompletely solid" and is crying in the corner refusing to help anymore because she just can’t take it.

Then later on December 1, 1995, at 11:00 a.m., Janice Johnson comes back to see Lisa and writes that Lisa needs "Needs 2L fluids when awake and attempt to feed." (Log. Bates # FSO 00214 - Exhibit 13.) Johnson formerly practiced anesthesiology in Arizona. The attendants never got 2liters of fluids down Lisa after that. (Petzold 6/9/98 interview at p81:19 - Exhibit 14.) "Attempt to feed" is also a statement of recognition that Lisa is not eating enough. Petzold noticed also that Lisa’s mouth was dry. (p45:14, police interview of 4/10/97 - Exhibit 15.) The last several days Petzold said it was "alarming" (p38:24.) Heather was "frantic." (p45:03.) In addition to these particular indicators of dehydration, it is also undisputed that all guards were called off beginning December 1, 1995, because Lisa was no longer a threat, she had quieted down. Heather Hof Petzold wrote at least three reports to Kartuzinski, (p10:20, State Attorney interview, 6/9/98 - Exhibit 14), commencing on December 2, 1995, telling him that what they were doing for Lisa was not working, (Police interview of 4/10/97, pp34-35 - Exhibit 15). Heather noticed an obvious sharp decline in Lisa’s physical condition the last 3-4 days. (p42:20 to 43:08 of police interview of 4/10/97 - Exhibit 15). Lisa was unable to walk the last 3-4 days, (State Attorney interview, 6/9/98, pp57-58 - Exhibit 14). Heather Hof Petzold’s reports to Kartuzinski on the alarming decline of Lisa’s health went unanswered. These reports, like others, have never been produced! Yet the Scientology experts want everyone to believe that Lisa looked the same on the day she died as she did one or three months earlier! All of this is evidence of dehydration written or testified about by FLAG staff neatly fits in the time frame dictated by the objective postmortem chemistry levels which indicate Lisa would be in an "uremic coma," not unconscious, but very somnolent, obtunded, and moribund around December 1, 1995, per Dr. John Coe and Dr. Calvin Bandt. Then on December 5, 1995 Janice Johnson finally returns to see Lisa in the early evening.

She described Lisa’s skin looking like a child’s skin when it is dehydrated. (Johnson deposition at p299:18-20 - Exhibit 16 and Exhibit 17.) In her police statement of 5/29/96 (Exhibit 17), (before there was anything published on the cause of death), she said that on 12/05/95 Lisa was "very dehydrated at that point. . .ummm, very thin." She further states that Lisa was "majorly dehydrated... everything really dry...you know... mucous membranes get real... real dry. There’s just this kinda... you know... sunken dehydrated look." (p40 of 5/29/96 police interview - Exhibit 17). Mucous membranes were dry. ( Johnson Deposition, p298:23 - Exhibit 16.) She admitted that Lisa’s mouth was dry and therefore concluded Lisa was dehydrated. (p297:10.) Rita Boykin, who started attending to Lisa on November 23, 1995 until Lisa died, also admits Lisa looked very dehydrated and had lost a lot of weight. (p41:13, Boykin 6/29/98 state attorney interview - Exhibit 18). Dr. David Minkoff testified that Janis Johnson told him that Lisa had lost a lot of weight. (Minkoff Deposition, p83:23 - Exhibit 19). Even with this staggering concession by Rita Boykin and particularly Defendant, Johnson, of obvious severe dehydration before Lisa is taken to the hospital, the Scientology experts exclaim that the autopsy photographs show no signs of antemortem dehydration!

When Lisa’s body arrived dead at the ER, Patient Care Technician Willie Burdette at the New Port Richey Hospital removed Lisa’s body from Johnson’s van and noticed she was gray and emaciated with no vital signs and looked as if she had been dead for awhile. (Page 12 of Police investigative report attached as FLAG’s Exhibit 2.) Head ER Nurse, Barbara Schmid, R.N., in comparing a live photograph of Lisa to what she remembered Lisa looking like in the ER said: 28 4 And if you could just take a look at this. 5 Did Lisa McPherson look like -- her face look like that 6 when she was brought in on December 5th of 1995? 7 A She did not. 8 Q Okay. Was her face thinner than what's 9 depicted in that picture? 10 A It was. 11 Q And did you notice any blood around her chin? 12 A Dried blood around her mouth. (Schmid deposition of July 17, 1997 - Exhibit 20)

Finally, former defendant, David Minkoff, M.D., a high ranking public Scientologist and the person who, without seeing Lisa, twice prescribed injectable Valium and a sedative, chloral hydrate, and who was the ER physician at New Port Richey Hospital who pronounced her dead, testified at deposition to the "shocking" physical condition of Lisa upon arrival in the ER. 100 14 Q Did you ask Janis Johnson why she wasn't up 15 front with you in describing her physical condition? 16 A Well, that was the gist of the conversation 17 with some -- you know, I wasn't happy. I was appalled, 18 and I was very upset, and I was very -- I was very 19 upset. It was horrible. It was terrible. It was B 20 you know, it's shocking.

89 5 Q Can you describe the appearance of Lisa 6 McPherson when you first saw her? 7 A She was moribund. She was draped over a 8 wheelchair with her legs out to one side and her arms 9 and head hanging over the other side. And she was not 10 moving, she was not breathing, and she looked like a 11 classic picture, if you look in an infectious textbook, 12 of what meningococcemia looks like. Looks just like 13 that. 14 Q Describe that for me. 15 A. It's skin hemorrhages generalized in a person

16 that looks like they're in shock, which is hollow-eyed, 17 skin very thin, wasted, very severely acute 18 cardiovascular collapse. 19 Q Did her appearance shock you? 20 A Very. 21 Q Did her appearance look at all as to what you 22 anticipated after you finished your phone call with 23 Janis Johnson? 24 A No. 25 Q Had Janis Johnson given you an accurate 90 1 representation of the physical condition of Lisa 2 McPherson as you saw when she was wheeled in, with the 3 exception that she was breathing and alive when she 4 called you B ... 7 Q (By Mr. Dandar) -- would you have told Janis 8 Johnson, Okay, bring her up? 9 A No. . . . 13 Q (By Mr. Dandar) Go ahead. 14 A No. 15 Q Why not? 16 A Too far. Too dangerous. 17 Q Would you have even told Janis Johnson to get 18 her in a vehicle and drive her to the hospital, or would 19 you have told her to call 911? 20 A I would have told her to call 911.

95 18 Q What signs, if any, did Lisa McPherson have on 19 her body that caused you to assume she had septic shock 20 or overwhelming infection? 21 A The skin hemorrhages, the appearance, sort of 22 the whole -- the whole sort of Gestalt picture. 23 Q Did she look to you to be dehydrated? 24 A Yeah. 25 Q Sunken face and eyes? 96 1 A Yeah. ... 97 3 A (By Deponent) Okay, the term I'm not familiar 4 with. And did she look dehydrated, yes. (David Minkoff, M.D., ER physician and Scientologist - Exhibit 19.)



Dr. Robert Davis, M.D., the associate medical examiner under Joan Wood, M.D., performed the autopsy at 11:00 a.m. on 12/6/95 after Lisa was pronounced dead at 2151 hours on 12-5-95, i.e., 9:51 p.m., per one of the Defemdants’ theories. Dr. Werner Spitz, Estate’s expert forensic pathologist, has opined that based on the testimony of an attendant, Laura Arrunada, Lisa was likely dead in the bath tub in the hotel around 4 p.m. according to Arrunada’s observing a relaxed sphincter muscle, evidence of neurological compromise. (Spitz Deposition, p348:1-3 - Exhibit 21.) According to FLAG, Lisa died 20-30 minutes before arriving at New Port Richey Hospital from the Ft. Harrison Hotel, or as the van driven by Janice Johnson entered the hospital parking lot. FLAG also alleges through staff executive, Paul Greenwood, that there was no pulse ten minutes after leaving the hotel, which would be 40 minutes before arriving at the hospital. Then again, another very high ranking FLAG representative, Mike Rinder, said in a televised interview, Lisa died inside the hotel. Dr. Minkoff testified that it is "probably possible" that Lisa died inside the hotel. (Minkoff Deposition, p100:2-6 - Exhibit 19.)





2. THE AUTOPSY: PHYSICAL FINDINGS OF DEHYDRATION A. WEIGHT

The Defendant experts opine that Lisa was very thin before she entered the hotel and did not lose weight while she was there. They also say that the scale at the medical examiner’s office, which weighed Lisa at only 108 lbs. and was checked every day for accuracy, weighed Lisa in error. Dr. Wecht opines that Lisa was no way near 108 lbs at the time of her death just by eyeballing the autopsy photographs. The ESTATE’s experts opine that the scale is correct. There is no evidence to suggest it is wrong, not even by looking at the autopsy photographs. Autopsy tech, Greg Daerr, also said they check the scale every morning to make sure it is accurate. (Daerr Deposition, p144:17-22 - Exhibit 22.) At the scene of the fender bender on November 18, 1995, EMS registered nurse, Bonita Portolano, called Lisa "voluptuous" and estimated her weight at 155 lbs. (Portolano Deposition, p31:07- Exhibit 23) In the ER of Morton Plant on November 18, 1995, both the ER nurse, Kimberly Brennan, and FLAG’S MLO nurse, Weber, estimated Lisa’s weight at 140 lbs. (Brennan Deposition, pp43-44 - Exhibit 24, and Weber Deposition, p436:07 - Exhibit 12.) Even the Scientology staffers conclude that Lisa weighed between 140-150 lbs the first few days of her "stay" at the Ft. Harrison Hotel. Rita Boykin, an attendant with Lisa most of the time, estimated her weight at 140 lbs. (Boykin Deposition, p173:16 - Exhibit 25.) Guard Alfonso Barcenas, who brought Lisa protein shakes for many days and saw her nude, estimated her weight at 155 lbs. (Barcenas Deposition, p125:10 - Exhibit 26.) Attendant, Heather Hof Petzold, estimated the weight at 140-150 lbs. (Petzold Deposition, p31:13 - Exhibit 27.) Attendant, Laura Arrunada, said Lisa weighed 68 kilos, i.e., 150 lbs. (Arrunada Deposition, p274:20 - Exhibit 28.)

Did Lisa lose weight? Janice Johnson admits that from the last time she saw Lisa on 12/01/95 to 12/05/95, Lisa had lost weight. (Johnson Deposition, p299:07 - Exhibit 16.) The vitreous results indicate profound dehydration. According to biochemical formula, Lisa would have lost up to 25% of her body weight in water loss per Dr. Bandt. At an average of 145 lbs in the beginning of her isolation in the hotel, Lisa’s 25% water weight loss equals 36 lb. loss in 17 days, resulting in an end weight of 108 lbs on the day of her death. The scale is correct. The first autopsy technician who took Lisa’s body out of the medical examiner’s refrigerator, Claude Stodgell, called the investigator as soon as he noticed ".... some injury on the arms and it didn't sound familiar with our, you know, summary. It didn't go along with it and I called the investigator back. (Stodgell Deposition, p41:15-17 - Exhibit 29) ...."she seemed underweight for the story that was in my invest summary." (p42:16-17). "To me, she didn't look healthy, she didn't look -- she didn't look like my -- the story in the summary."(p43:5-7). "She just looked either dehydrated or just not healthy to me." (p47:1-2.) Stodgell called out the weight of Lisa’s body to the other autopsy tech, Greg Daerr, "108 lbs.," who wrote it down on the autopsy checklist. "When someone is telling me the weight, I read it back, make sure I'm hearing them right." (Daerr Deposition, p244:15-17 - Exhibit 22.) Daerr testified that the autopsy picture is consistent with a weight of 108 lbs. (p261.) The pictures certainly do not show a 5'-9" woman weighing 150 lbs. (p262.)

The first indication of dehydration is the height of 5 feet- 9 inches and weight of only 108 lbs. This is a very thin person, who had been seen weighing 140 lbs to 155 lbs 17 days earlier. There is no indication in the protocol that Dr. Davis questioned the accuracy of this weight read from the scale. Board certified pathologist, Werner Spitz M.D. who escaped Nazi Germany, testified that Lisa looked like she came from a concentration death camp. Dr. Spitz testified (Exhibit 21): 42 9 A Well, all you need to do is look at the photographs of her 10 on the day she died and you will realize that there is B 11 this person looks like somebody who came out of Auschwitz. 12 Q So you -- so it's your opinion that the autopsy photos 13 looks like a concentration camp victim that came out of 14 Auschwitz? 15 A The B 16 Q First answer that question. Is that your -- Is that your 17 opnion? 18 A Yes, that is my opinion.

43 5 A I did not mean malnourished, necessarily. I cannot 6 determine nutritional status by the looks of her body. The 7 body is made of a very high percentage of water. She is 8 dehydrated and it shows and it's indicated in the autopsy 9 report and it showed by chemical test and the photographs 10 confirm



B. PHYSICAL GAUNTNESS, DRYNESS, AND CRUSTINESS

From the very beginning of the autopsy, the technician knew that Lisa’s appearance was not that of a "healthy person." As soon as Lisa’s body was taken out of the refrigerator at the Medical Examiner’s office, the autopsy technician, Claude Stodgell, first noticed that Lisa’s weight did not conform to the investigative summary. (Stodgell Deposition, p42:17-18 - Exhibit 29.) "I believe she looked dehydrated to me or ....Emaciated." (p46:11-14.) Confirming the deposition testimony of Robert Davis, M.D., the written autopsy protocol reports signs of dehydration: !Hippocratic facies is present !Crusted blood is present at the nares. !Crusted brown dried material is present within the mouth, on the lips; !crusted (dried) material is present on the eyelids. !Right and left pleural cavities are free of fluid. !The pericardial cavity has 2 cc of pale clear fluid.. !The peritoneal cavity is free of fluid[2]

Greg Daerr, who has done over 3,500 autopsies, was the autopsy technician assisting Dr. Robert Davis, M.D. during the autopsy and made the "Y incision" of the chest and abdominal body. Daerr testified (Exhibit 22): 126 15 And then once the autopsy was -- once we

16 did our Y incision and went through all the

17 specimens and looked at organs, we did note that B

18 a comment was made about how dry she appeared to be

19 internally. All her organs seemed to be very dry.

20 There weren't -- they weren't a real wet look to

21 them.

22 Q. And who said that?

23 A. Both of us were just kind of talking about

24 it because we -- we're always looking for fluid in

25 the cavities so -- and usually you see some bodies

127 1 just have a wet appearance to them and some bodies

2 don't and this body had a very dry appearance to it

3 internally.



128 2 Q. All right. Now -- and you have, as you

3 sit here today, a specific recollection of that

4 conversation with Dr. Davis?

5 A. When we were -- we were talking about the

6 case, it looked dry inside.



7 Q. Okay. Now, which organs looked dry?

8 A. Just everything in general just looked

9 dry.





129 16 Q. Now, what I'm asking is your specific

17 recollection. Tell us specifically what you recall

18 yourself as you sit here today was dry internally.

19 MR. DANDAR: Same objection.

20 A. As we opened -- as we opened, made the Y

21 incision and opened the cavity, it appeared to be

22 dry. There was no fluid in the chest cavities and

23 down in the abdominal, and the organs just had a

24 dry appearance to them.

25 Q. And what is a -- can you describe what



130 1 that would be, what that looks like?

2 A. The organs -- well, if you have organs

3 that are -- if the chest is full of fluid, all the

4 organs are going to be dripping wet, and then

5 they -- it's kind of a tacky -- kind of a tacky

6 pasty look when they are dry.

.... 24 I'm just

25 saying when -- when the incision was made, the



131 1 overall look looked dry and it looked tacky and we

2 noted that there wasn't any fluids in the cavity,

3 which I mean it was real dry. Usually you'll

4 see -- there might be -- it's not uncommon, you'll

5 have a few ccs of fluid in the pericardial sac, a

6 wet appearance.



..... 20 But what I was

21 talking about is the chest cavities, if they B

22 they have a dry appearance, all the ribs, like in

23 this case.

132 . . . 20 And if we have a case where

21 there is no fluid, which is -- you shouldn't have

22 fluid but they still should have a wet appearance,

23 and this was no fluid and a very dry looking

24 appearance.

134 . . . 15 I could

16 see the lungs had a dry looking appearance to them

17 and the intestines seemed -- that whole area seemed

18 dry, and then the top of the liver.





141 8 Q. She was average nutritional status, wasn't 9 she? 10 A. I wouldn't say she was average, I would 11 say she was below. (Greg Daerr Deposition - Exhibit 22.)

Daerr also took pictures during autopsy. Picture #26 is of the opened left lung with a dry outside. "...this, to me, looks like a dry, sticky appearance, the outside of this lung ... (Daerr Deposition, p197:22-25 - Exhibit 22.) Before the agents of Scientology privately contacted Dr. Robert Davis, his deposition was taken. He insisted upon having his deposition in his attorney’s office. His attorney announced at the beginning that Dr. Davis would express no opinions. Quite odd for a medical examiner! However, Dr. Davis did express opinions, which he later changed 180 degrees after privately meeting with Scientology operatives and then privately meeting with Scientology experts, attorneys, and corporate representatives in Clearwater at Scientology headquarters. The defense makes much ado about the lack of any mention of skin turgor in the protocol. First, Dr. Minkoff reports that Lisa’s skin was "very thinned." Then in the deposition of Robert. Davis, M.D., he testified (Exhibit 30) that he does not use the clinical term "turgor" as a sign for dehydration. (p33:14). Rather, he uses the term "Hippocratic facies" which he defines as 33 21 "facies" refers to a 22 particular facial appearance and it's a gaunt look, if you 23 will. The skin is tight -- okay? -- to palpation or to 24 feeling. You don't feel an abundance of soft tissue. 25 The orbits, which is to say the rims around the 34 1 eyes, are prominent, okay? The globes or eyeballs tend to 2 be sunken. The cheek bones are prominent. Right here -- 3 (indicating) -- okay?

4 The cheeks tend to be sunken and the jaw -- 5 mandible or jaw bones tend to be prominent. 6 And, as I say, to me, the word "gaunt" is a -- 7 perhaps a word that lay people can relate to 14 Certainly if there's crusting; for instance, if 15 things -- if there's drying that is -- in other words, if 16 secretions from organs or say -- for instance, say, from 17 the nose or the mouth, if there's no obvious liquid and it 18 appears dry, that would cross my mind.

Contrary to the defense experts, Dr. Davis does not look for nor describe internally dry organs. (Davis Deposition, p35:18-24.37 - Exhibit 30) 37 9 the things that I emphasize are the

10 Hippocratic facies, which are associated with significant

11 dehydration and malnutrition; those are the things that I

12 look at, and, to me, they are associated with -- I prefer

13 to use the word "significant", perhaps. I don't want to

14 get into -- go beyond that.

Dr. Davis without question stated that the term "average nutritional status" appearing in the protocol is inconsistent with his term of significant dehydration: Hippocratic facies." (p207.) What is important is his opinion of "significant dehydration," which confirms Greg Daerr’s testimony. (Davis Deposition - Exhibit 30.)



105 20 I think dehydration was significant. I don't know that I 21 can be unequivocal relative to it versus a thromboembolism 22 as an immediate cause of death.

134 9 Q Am I correct that you did not make a final 10 determination that the pulmonary embolism was as a result 11 of a thrombosis in the left popliteal vein; is that 12 correct? 13 A That's correct.

229 1 Q Based upon what you know now, are you able to say 2 or not say that the embolus was the cause of death for Lisa

3 McPherson? .... 185 10 A But, no, I don't think I can. 11 Q Why did you write in or put in "rule out 12 malnutrition/dehydration"? 13 A Because of the Hippocratic facies and because of 14 the unclear nature in my mind of the crusting that I 15 mentioned in a number of places, and, again, this was prior 16 to my having any vitreous results. 17 Q Are the vitreous results consistent with 18 dehydration? 19 A Profound -- they're consistent with significant 20 dehydration. 21 Q And is the crusting that you noted in the 22 Protocol consistent with the vitreous findings of 23 dehydration? 24 A. The crusting is, to me, a nonspecific kind of 25 thing and is of some value. You know, in a hierarchy of 186 1 things, I don't know that I'd put it foremost.

13 Q What about the crusted brown material on the lips 14 and mouth? 15 A That could be -- that could be associated with 16 dehydration. 17 Q As well as the crusted dry material on the 18 eyelids? 19 A Could be.

216 9 It's not obligatory that you're going to die 10 because you've got an embolus to your lung, unless it's a 11 saddle embolus.

And yet the defense amazingly attests that there is no physical evidence of dehydration!

C. THE MICROSCOPIC SLIDES: KIDNEY DAMAGE.

The defense argues there is no kidney damage. The microscopic slides of the kidney show damage caused by high protein intake or dehydration. See attached report (Exhibit 31) of renal pathologist, Agnes Fogo, M.D., retained expert by the ESTATE.



D. EXTRACTION, STORAGE AND TESTING OF FLUIDS. Since it will be readily transparent that the first attack of reliability of vitreous is frivolous, Defendants then argue that ABecause Accepted Testing Procedures to Protect Against False Readings and Contamination were not Followed," all postmortem chemistry tests, including the vitreous results, must be excluded. This again goes to the weight of the evidence. Daerr, who has done over 3,500 autopsies, describes (Exhibit 22) his routine of extracting the fluids: 301 6 A. What I would do is put it in a separate 7 tube and then extract vitreous from the other eye. 8 And if that eye was clear, I would keep that 9 vitreous. If both of them were the same, I would 10 keep it. It's still worth testing. 238 22 A. I would -- because I do it the same every 23 time, I -- like I said, as soon as I draw the 24 vitreous, the blood and urine, I put it directly in 25 the refrigerator, which is probably the first 10 239 1 minutes of autopsy. ... 13 Q. And do you know where it goes in the tox 14 lab? 15 A. They stick it in their refrigerators or I 16 don't know if they put it in the freezer then or 17 refrigerator but they -



At 2 p.m. on the day of the autopsy, Daerr sent cerebral spinal fluid (CSF) to Wuesthoff Hospital laboratory per the written inventory sheet. (pp218-219.) He usually sends vitreous right after the autopsy, but at other times, he sends it out much later. (p222.) Daerr’s Deposition Exhibit 15 (Exhibit 22) is the Wuesthoff requisition form that he sent out with the vitreous sample on January 29, 1995, at the direction of Dr. Davis for sodium and chloride testing. (p224.) The vitreous was sent "in a lab pack overnight." (p229:20.) Then on 1/31/95 there is additional request by phone for additional testing of the vitreous at Wuesthoff. (p226.)



The McPherson vitreous was tested by Barbara Capshaw at Wuesthoff. She recalled going to a seminar conducted by Dr. John Coe in Sarasota, Florida in 1994. She described Dr. Coe as "the leading authority on vitreous from cadavers." (Capshaw Deposition, p17:4-5 - Exhibit 32.) The McPherson vitreous was sent out at 2:00 p.m. on 1/29/96 in a sealed box and arrived at Wuesthoff in Rockledge, Florida, the next day at 10:30 a.m. (p28, Exhibit 26.) She signs for it, (Exhibit 9 to Capshaw deposition. 29:9-10.) It goes directly into a locked toxicology lab refrigerator. (27:1-2.) The specimens have identification on the tubes from the medical examiner’s office to maintain chain of custody. They remain in this tube throughout testing. (p32.) The sample was tested the next morning. (p41.)

Since 2/1/96, the remaining frozen vitreous at the medical examiner’s office was tested by the state attorney with Dr. Bandt present at the lab owned and run by Scientology’s expert, Fredric Rieders, M.D. in Philadelphia on November 30, 1999, and then at St. Anthony’s Hospital in St. Petersburg on December 10, 1999. The CSF, sent to Wuesthoff on the day of autopsy, was finally tested at the request of the ESTATE and over defense objections at Orlando Regional Medical Center on October15, 2001. Those results are attached. (Bandt’s Chart - Exhibit 33.) The results are all consistent, thus proving the reliability of the first vitreous testing. What makes the vitreous testing consistent is the osmolality of each specimen, which is the "pi-mesen", i.e. the "glue." While the testing for electrolytes is a chemical test, the testing for osmolality is a physical test. In the best CSF sample, test tube #2, the osmolality was 500. In the vitreous and serum tests of December 1999 it was 509. Note that even the defense has stated in depositions that Dr. Rieders tests in November 1999 should not be considered since they were improperly done. ". . .that some of the that was done at National Medical was not appropriate in terms of the methodology"... Because it did not mimic the studies that were actually performed by the Wuesthoff Laboratory. Point of fact that some of the studies that were done were dramatically different in principle from the studies were done at Wuesthoff". (Wu Deposition, p16:24-17:11 - Exhibit 34.) However, that does not stop the defense from using it in their Frye motion. More evidence of intellectual dishonesty!

Dr. Wu testified that the Beckman was an appropriate instrument to use to test vitreous. (p21:5-22:15.) He found no fault in the testing at Wuesthoff. (p23:1-6.) Although Dr Wu has never published on vitreous, he does recognize Dr. Coe as the expert on vitreous. (p28:14-22.) He concedes that he does not have as much expertise on vitreous as Dr. Coe and more importantly, he states that no expert on the defense does. (p27:23-28:5.) Even though Dr. Wu conveyed his opinion to Mr. Shaw of the inappropriate testing of Dr. Reiders before the December 1999 testing at St. Anthony, Mr. Shaw never conveyed this information to his pathologists, Dr. Baden and Dr. Wecht. (p30.) In fact, Dr. Wecht wrote his February 2000 report relying on this incorrect data, which was used to persuade the medical examiner to change her opinion on cause of death! Dr. Wecht just learned that this data was wrong the day before his depositions in 2001. Now the Defendants attempt to use this same incorrect data to persuade this court! Dr. Wu’s opinion is: 44 23 A. My principle opinion is that the vitreous humor

24 testing for urea nitrogen is more likely than not

25 artifactual.





His basis for this opinion is that 1. The vitreous results are in direct conflict with the attendants’ records in the days prior to Lisa’s death. (p46:7-9);

2. The urine results do not agree with the vitreous results. (p46:11-12);

3. The autopsy protocol describing the various organs and tissues. (p47:4-7);

4. The chain of custody records at Wuesthoff and the medical examiner’s office as well as the storage conditions and circumstances of the testing. (p47:12-15 and p238:10-15.); and

5. The literature and Dr. Coe’s writings do not report urea this high. (p47:22-25.)

All of the above arguments go to the weight of the evidence. None of it has to do with new scientific principles. The testing he observed at St. Anthony on the vitreous kept frozen since the day of autopsy at the medical examiner’s office was done properly. (p50:5-6 and p60:21:25.)

Dr. Wu agrees that osmolality above 300 is suggestive of dehydration. (p70:20.) Lisa’s was 509. Dr. Wu sums up his opinion that urea nitrogen of 300 is too high. He has never seen it. He has never read about it except for cases of uremia. Therefore, it makes no sense to him. Therefore, the results are unreliable. (pp98-99.) However, experienced physicians have seen urea that is 300 and above with creatinine of only 2 or 3. (Ramirez Deposition, p51:4-52:5 - Exhibit 35.) These patients are usually in a nursing home on high protein diet, but not drinking enough "free water," similar to Lisa McPherson. Dr Wu agrees that the vitreous is the most reliable and therefore, the vitreous sodium would reflect the true sodium level at the time of death. (Exhibit 34). 115 23 Q. So, you would agree, then, that the number at the 24 time of death, would be higher in the serum for sodium than 25 the 149? 116 1 A. In -- most likelihood, yes. In -- better 2 probability than not we can conclude that, yes. 3 Q. And would you then think that the sodium in the 4 vitreous of 180 would be higher at the time of death than it 5 was when it was tested? 6 A. Potentially, but it is true that the vitreous 7 sodium concentrations are more stable.



The vitreous was properly extracted at autopsy. (Wu Deposition, p116:15-16 - Exhibit 34.) It was not improperly collected. (p117:6.) Dr. Wu’s first major issue with the Wuesthoff testing is simply the age of the specimen, 57 days. (p118:11.) It was stored properly with an inventory sheet. (pp119-120:4.) After the vitreous was refrigerated in the tox lab at the medical examiner’s office for two days from autopsy and then tested, it then remained frozen per the testimony of the ME’s toxicologists. (p127:11-12.) However, Dr. Wu has a problem with the vitreous being in a Sears’ frost free residential freezer that goes through a defrost-thawing cycle, but has no clue how that would effect the test results. (p238:10-15.) Even though the vitreous sample may have thawed and then re-froze over 4 years, the sodium level would remain unchanged. (p125:12-13.) He could not identify one article that supported his assumption that repeated freeze-thaw cycles would significantly alter the levels of analytes in the vitreous. All he could say is that there are articles somewhere which "discourage" this for serum. (p128:2-5.) He does concede that urea does not break down either, but he is just not sure. (p130:4-12.) There are no studies anywhere in the world that would even suggest that urea breaks down with freeze-thaw cycles. (p130:17-18.) Chloride would also not change due to a freeze-thaw cycle. (p131:12-14.) Creatinine would go up if water content is unchanged and go down if there is evaporation. (p131:15-25.) In comparing urine to vitreous, Dr. Wu concedes that vitreous is more reliable. (p134:4-6.) 144 14 Q The sample itself, is there 15 something that you know about that's inside that sample that 16 shows that it was degraded from death to testing at 17 Wuesthoff? 18 A. You're talking about vitreous or are you talking 19 about blood? 20 Q. Vitreous. Vitreous. 21 A. No.

Dr. Robert Davis and the ESTATE’s experts, Drs. Bandt, Coe, and Ramirez emphatically state that for postmortem electrolyte analysis for determining the degree or presence of dehydration, urine is totally unreliable.

The urine was placed in a cup, not a tube, because Daerr extracted 15cc of urine. It had a screw top cap. It was tested in 1997 at Wuesthoff, but by the time it was inspected by the defense in 2000, it had completely evaporated, thus indicating it was evaporating all along. No one looks to a single urine sample to prove or disprove dehydration. Even Dr. Robert Davis states that he did not know why urine was taken, since vitreous is the predominant fluid for testing for dehydration. (Davis Deposition, p107:5-24 - Exhibit 30.) 107 25 you can run into a variety

108 1 of problems in urine and part of the problem is you don't

2 know when that urine got there. You don't know how long it

3 was there.

4 Urine comes from kidneys and the function of

5 kidneys is largely to concentrate, which is a big word for

6 saying it sucks stuff out and puts it in much greater

7 amounts, so that it's very easy to over-interpret urine and

8 it is not as easy to over-interpret vitreous.





This opinion on the lack of reliability of the urine sample is shared by all experts for the plaintiff as well as all the literature. ESTATE’s nephrologist, German Ramirez M.D., commented upon the known unreliability of urine (Exhibit 35): 192 7 And finally they radicalize them by just looking 8 at the urine, and they say urina exmeditaries, the urine is 9 a whore. Okay? That is basically the conclusions. In 10 other words, the urine can deceive you very easily. So you 11 have to have the context of the person.



Only the defense places great emphasis on unreliable post mortem urine, which was obviously subjected to 13 months of evaporation due to its container. Dr. Wu also conceded that postmortem serum is not reliable to determine dehydration because it naturally degrades after death. (Wu Deposition, p145:11-15 - Exhibit 34.)

He has no hard evidence that the vitreous samples were contaminated, he simply says that to him the test results do not make "biological, pathological, or clinical sense." (p147:1-2.) He believes the vitreous sample was spiked. (p150:8-10.) However, he is not saying that anyone at the Pinellas medical examiner’s office spiked the sample. (p153:12-16.) Dr. Wu concedes that it is not appropriate to compare the vitreous sodium to the serum sodium levels because of the Donnan Equilibrium principle. (p157:2-7.) Dr. Wu agrees that dehydration does increase the hematocrit and that an increase in the hematocrit does cause erythrocytosis. (p163:1-7.) An increase in urea "can lead to dehydration and it can lead someone to be very obtunded, possibly comatose and unable to respond. We call this a uremic coma." (p163:10-13.) The defense argues that without the presence of ketones, there can be no dehydration. Dr. Wu disagrees!



180 21 If someone is able to suffer dehydration without 22 starvation, that is to say totally deprived of water, both 23 in the food -- I'm sorry -- deprived of water but yet gets 24 adequate food, and that food does not contain enough water 25 to satisfy the dehydration, then, yes, it's possible.

Even on cross examination by FLAG counsel, Dr. Wu said that the lack of ketones does not eliminate the likelihood of dehydration. The lack of ketones only means no "starvation ketosis." He believes that the lack of ketones makes dehydration "less scientifically likely." (p229:6-12.). Since Lisa was forced fed protein with a syringe, she did not burn enough carbohydrates to create sufficient number of ketones to be detected by instruments.

With the continued use of a syringe in an obtunded Lisa McPherson, the injection of protein powder and protein shakes would account for the lack of starvation ketosis and the increase of urea due to the lack of "free water" to perfuse the kidney. Thus severe dehydration results per the Estate’s experts. Only severe dehydration will increase chloride to 161. (Wu Deposition, p187:11-13 - Exhibit 34.) Evaporation did not increase the urea to 300. (p195:1-2.) The specific gravity of vitreous as tested by Wuesthoff is not in conflict with the vitreous sodium and chloride levels indicating dehydration. (p200.) Looking at the color of urine is not a good indicator of dehydration. (p201:1-2.) However, in the samples, osmolality is a "critical parameter for looking at dehydration." (p201:8-9.) The vitreous osmolality "was consistent with high urea." (p222:12-13.) The Plaintiffs’ experts agree! It was known in December 1999, by Drs. Baden and Wu, and in particular Dr. Rieders that the Wuesthoff stated specific gravity of the vitreous of 1.337 was simply a clerical mistake of reading the wrong side of the instrument and that the correct measurement was 1.011 vitreous specific gravity. (Wu Deposition, p202:15-16 - Exhibit 34.) Yet, in January, 2000, Dr. Rieders writes his report referring to the mistaken number rather than the known correct number in formulating his opinion, which letter is sent to the medical examiner to influence her decision to change the cause of death. This same known clerical mistake of vitreous specific gravity is also used in the opinion of Dr. Wecht in his February 2000 report sent to the medical examiner. Another instance of intellectual dishonesty by FLAG, not Dr. Wecht, since he also was deceived.

The gas chromatography test at the medical examiner’s office tested the vitreous for alcohol. As part of that test, one ketone, acetone, would be detected if present in sufficient quantity for the test to detect. It was not detected. This test does not test for the other ketones: "acetoacetic acid, which is a ketone, and beta-hydroxybutyric acid, which is not a ketone, but it's considered a ketone body." (Wu Deposition, p206:5-7 - Exhibit 34.) Dr Rieders used the "dip stick" method for testing for vitreous ketones, volatile acetone, which is a more unreliable test method than gas chromatography. (p207.) Dr Wu concedes that since the urine evaporated at Wuesthoff, he cannot place any reliance in it or the other samples. (p231:10-16.) Yet, only the urine evaporated. If Lisa was in a prolonged state of dehydration, Dr. Wu "would expect that she would be in a state of renal shutdown. That it is -- that the natural sequella of prerenal azotemia, if it's not corrected in a reasonably quick fashion is renal failure." (Wu Deposition, p233:14-17 - Exhibit 34.) He would expect evidence on the autopsy microscopic slides. Dr. Fogo’s expertise as a renal pathologist provides opinions of such objective evidence. Dr. Wu did not have the benefit of her opinion at the time of his deposition.

V. THE ESTATE’S EXPERTS’ OPINIONS A. THE OPINION

Make no mistake, the Plaintiff’s experts rely on the global evidence in rendering their opinions. Dr. Coe, in his article and in his deposition, states that the vitreous test is "ancillary" to the rest of the physical evidence (Coe deposition, p49:7). The ESTATE’s experts opine that Lisa McPherson died from severe dehydration which caused pre-renal azotemia leading up to renal failure. (Coe, Bandt, Spitz, Ramirez). There is no evidence of antemortem pulmonary emboli which occlude enough of the vascular bed to cause death. In fact, Plaintiff’s pulmonologist, Lawrence Repsher, M.D., has opined that all lung clots are postmortem and in small vessels. (Repsher Deposition, p38). More importantly, if there was death due to pulmonary embolism, there would be dilated right heart chamber and increased lung weight, neither of which appear in the written autopsy protocol, pictures, or slides. (p114.)

B. THE EXPERTS’ OPINIONS AND BASIS

The foremost expert in the world on post mortem chemistries is John I. Coe, M.D. He has been recognized as "a universally acknowledged expert on the body's chemistry following death." In re Matter of Sybers, 583 N.W.2d 890 (Iowa S.Ct., 1998) (Exhibit 38). His C.V. lists 42 articles and 8 textbooks. (Coe Deposition, p418 - Exhibit 36.) A full professor of pathology and medical examiner for 30 years, Dr. Coe has no equal. (See attached C.V. and his latest deposition excerpt beginning at page 414.) More importantly, he has been sited as a reference in over 130 publications. Even Scientology’s expert, Dr. Wecht, has published annual reports which included a review article on postmortem chemistries by Dr. Coe, who Dr. Wecht recognized as the pioneer in post mortem chemistry. There has never been a peer reviewed article that challenges the validity of Dr. Coe’s work on vitreous being the best reflector of antemortem serum values. (Coe Deposition, p421 - Exhibit 36.) Over the years he has put on 4 hour workshops on postmortem chemistry analysis for the annual meetings of the College of American Pathology and the American Society of Clinical Pathology. (p424-428.) He has taught this science not only nationwide, but also in Europe. 450 7 Q What are the factors that you relied upon 8 in forming your opinion as to the cause of death of Lisa 9 McPherson? 10 A Well, a combination of the history; what I 11 understood at the autopsy, and that -- that comprised part 12 of the history for me; in other words, I was receiving a 13 story of a person who was sent into an institution because 14 of being mentally confused, came out 17 days later dead. 15 The autopsy report indicated dehydration in 16 certain aspects of it, the description, and then the 17 postmortem chemistries were an ancillary, an important 18 ancillary, I will admit, in making me think that 19 dehydration was a significant factor. 20 There was a discussion of a formation of a 21 thrombus in the -- in the popliteal vein and a pulmonary 22 embolus, and I can only say that when we had the chance to 23 examine the microscopic, I couldn't support that, but I'm 24 not going to say that it wasn't truly pulmonary embolus. 25 What I would say is that the pulmonary 451 1 embolus as described in the autopsy and as far as I can 2 tell on the pictures that were shown, I never did get 3 completely oriented, indicates no more than an obstruction 4 of the left pulmonary artery, if it indicates a total 5 obstruction of that, but at least no more than that. 6 And on that basis, in the absence of 7 dehydration or some other factor, I would not expect that 8 to be fatal. It was therefore my ultimate conclusion that 9 dehydration was the underlying cause, which by itself 10 could be responsible for the death, or that that may have 11 been hastened by the development of popliteal vein 12 thrombosis with a pulmonary embolus as a -- as a kind of a 13 terminal event in somebody who's critically ill at the 14 time that it occurs, even though it doesn't involve both. 15 It's not a saddle -- saddle embolus. It's not involving 16 obstruction of the total pulmonary blood flow.



Dr. Coe has no problem with the McPherson vitreous aged 57 days or four years due to his own research. Nor does he have a problem with the testing on a Beckman CX-7, an instrument he has used himself. (Coe Deposition, p462:21- Exhibit 36.)

459 20 Q Have you ever tested vitreous that was more 21 than two months old -- 22 A Oh -- 23 Q -- and compared it with a fresh sample? 24 A Yes, I have tested vitreous. I've tested 25 it as much as a year later. I don't have anything four or 460 1 five years later, but as much as a year later found no 2 significance difference. 3 Q Why -- why do you think that is? 4 A Well, if it's sealed and frozen, and that's 5 the way ours were stored, why would they change on the 6 substances that we're after? Now, some things will change 7 when they're frozen, but we're not talking about just 8 everything. I'm right back to the five or six basic 9 things I'm after, and we exclude glucose. But sodium, 10 chloride, urea nitrogen. . . Potassium. (p460:19.)





Dr. Coe explains why the vitreous is more reliable than any other postmortem fluid to determine antemortem serum levels for electrolytes. Serum chloride and sodium always go down after death. Dr. Coe sees no reason why the defrost cycle of the storage freezer would effect the vitreous results, especially the results of key dehydration indicators: sodium and chloride. (p464:9-11.) The key in vitreous analysis is to make sure the sample’s potassium is under 15mmol/L. Lisa’s was 13.9 mmol/L in 1996 and 14.8mmol/L in 1999. This is the first confirming marker that the vitreous is reliable. (p425:18-24.) Dr. Coe also had a bio- statistician, Robert Sherman, PhD., review and confirm the statistical basis of the research. (p429:15-430:16.) Not only was his research subject to this statistical analysis, but the research articles were peered reviewed for accuracy. (p431:22-432:07). Here is how Dr. Coe conducted his research which is relevant to this case: 424 7. But if we had a specimen that was drawn in 8 a period so that the vitreous potassium was under 15 we 9 felt safe in saying that the vitreous sodium and the 10 vitreous chloride stayed the same and were representative, 11 as far as we could tell from the hospital cases that we 12 studied in association with postmortem chemistries, that 13 elevated values represented elevated values while they 14 were alive, and severely depressed values were showing up 15 also after they were dead. And that was done in 16 association with studying the electrolytes in living 17 individuals at the end of their life, to be compared with 18 postmortem vitreous. 19 Q So you had the -- you had the blood 20 results, the serum results of the electrolytes of the 21 hospital patients while they were dying, and you were able 22 to compare those results with the -- 23 A We got it as close to dying as possible. 24 We -- we would not take anything that was over 12 hours, 25 and we tried to eliminate those and get it within 6 hours 425 1 of the time of dying, and preferably, if you could, get it 2 even closer than that, and occasionally we could.

Dr. Coe explains another key marker for reliability of this vitreous testing: osmolality. 436 3 .osmolality is going to turn out to be quite 4 high on this case in part based on the very high urea 5 nitrogen. One -- if one gets an osmolality that exceeds 6 300 you begin to wonder about the presence of dehy -- boy, 7 it's time I went home -- dehydration. And the higher it 8 goes, the more severe the dehydration is.

9 But in this case it's not just the 10 dehydration that's making this -- this marked elevation; 11 it's this increase in the urea nitrogen. And it's -- as 12 it's going up it's making a more and more concentrated

13 solution, which is forcing the osmolality constantly 14 higher, and so we're getting up to values of over 500 -- 15 or 500, not over it, necessarily, but 500, which is very 16 unusual. Again we have something that's unusual. But 17 then we rarely run into a situation where we have urea 18 nitrogen at 300 too.

438 11 Q... is there any 12 significance that the serum and vitreous osmolality tested 13 on the same day at St. Anthony's Hospital in December of 14 '99 is 509 and the cerebrospinal fluid, the clearest 15 sample, test tube number 2, tested in October 2001, 16 osmolality of 500? 17 A Yes. That, I think, is very important. And 18 it is critical to me in demonstrating that we're dealing 19 actually with, whatever the cause, totally abnormal 20 laboratory values that I can only interpret as being due 21 to dehydration. And there's an internal consistency. In 22 other words, we expect the osmolality to be the same no 23 matter what we're checking, and we're -- and that's what 24 we're finding. We're finding the osmolality in the 25 vitreous is the same as the osmolality in the serum is the 1 same as the osmolality in the spinal fluid.

439 8 A But on the other hand, since it blended in 9 with the other two, it just gives further support to 10 the -- what I call the internal consistency of the 11 results.

Dr. Coe also opines that the urine is not reliable.

442 2 I think it may have become a normal urine 3 because of evaporation, which would force up its specific 4 gravity, which would force up its osmolality both. And 5 part of it I base on the historical fact that at the end 6 of five years, when they go to look at the cup, it's 7 empty, which is demonstrating we're having some loss of 8 fluid.



For this case, Dr. Coe researched his medical examiner cases where the cause of death was by dehydration. There was no finding of any ketones. (Coe Deposition, p445- Exhibit 36) Ketones were not detected because: "They simply were not burning fat so fast that it was not able to be metabolized all the way down to the carbon dioxide and water....they just didn't need that much for their metabolism, is what I think it amounted to. They were at rest, they were elderly, they weren't doing things, and they don't -- didn't require many calories. And they were able to burn the fat completely, getting the calories they needed to keep them alive as long as they stay alive, but then they -- you know, they died of dehydration finally -- and electrolyte imbalance." (p446.)





Lisa was at rest due to profound dehydration. She burned few calories so no ketones were produced in enough quantities to be measured. The syringe injection of substances containing protein also prevented the production of ketones and raised the urea. Calvin Bandt, M.D. ran the clinical laboratory at the Hennepin County Medical Center in Minneapolis, where he collected over 6,000 vitreous samples[3] used by Dr. Coe in his research and peer reviewed articles. It is his opinion from day one, along with Dr Coe, that Lisa was severely dehydrated, which dehydration caused her to be in an "uremic coma." This is not a state of unconsciousness, to which Dr Baden and Dr Wecht allude. Rather it is a state of somnolence, of being obtunded or moribund, as Dr. Wu, Dr. Coe and Dr. Bandt describe.





654 4 but I think at least in 5 the last two days, that she would have been in 6 the last stages of uremic coma, that she would 7 have probably been responsive, she could have 8 moved around, that she would have been 9 extremely weak, that she would have been very 10 confused, that she would have been very 11 somnolent, she would not be very active, she

12 would not be very verbal. Those are the 13 primary things.

15 she would 16 have looked very much like she looks in that 17 one autopsy picture where she has the 18 endotracheal tube in her mouth, and one of the 19 things in there that fits very well with that 20 is the condition of her mouth. 21 She has extremely poor oral hygiene. 22 You can see crusted material on her teeth. 23 This -- this is very common in people who are 24 in a very obtunded state, that they aren't 25 able to swallow very well, and they get a lot 655 1 of bacterial growth and dried mucus and so on 2 in their mouth, and it's a very typical 3 picture of poor oral hygiene. (Bandt deposition, June 5, 2001 - Exhibit 39.)

Dr. Bandt also relied upon testimony of the attendants and the logs that were produced in reaching his opinions. In particular, the December 1, 1995 log of Janice Johnson, where she writes that Lisa needs 2 liters of fluids, indicating to Dr. Bandt, that Dr. Johnson was very concerned about dehydration. (p661.) Lawrence Repsher, M.D., pulmonologist and board certified in critical care, opined that there is no physical evidence in the written autopsy, pictures, or slides that Lisa died from a pulmonary embolism. It is inconceivable that the bruise on Lisa’s left lower thigh, only 2-7 days old, could cause trauma to the popliteal vein. (Repsher Deposition, p233 - Exhibit 37.) Thrombi, which break off and cause emboli, can be antemortem or postmortem. (p123.) The primary lack of physical evidence is explained as 114 16 you don't 17 die from pulmonary embolism without having a 18 dilated right heart chambers and increased lung 19 weight. (Repsher deposition.)

There is no damage to the right heart chamber and the lungs are light and of equal weight. Therefore there cannot be death due to pulmonary embolism. The only cause of death is severe dehydration. Daerr took autopsy pictures during the autopsy at the direction of Dr. Davis. An autopsy picture, Picture #31, shows neck organs. Dr. Davis wanted that picture to show the hemorrhage, but this picture does not show a pulmonary embolism. (Daerr Deposition, p196:1-2 - Exhibit 22.)

Dr. Bandt concludes that the cause of death is pre-renal azotemia caused by severe dehydration. (Bandt deposition, p 663 - Exhibit 39.) The azotemia, (high nitrogen in the blood), itself does not cause death, it is simply a marker of severe dehydration. (p664.) Pulmonary emboli may have contributed to it. (p664.) Therefore, he would state the manner of death as "probable pulmonary embolus due to severe dehydration and medical neglect" if there is evidence of an occluding antemortem clot. (p666:1-2.) The severe dehydration would cause electrolyte imbalance and erythrocytosis. (p667.) He would expect to see acute tubular necrosis of the kidneys under microscope, since dehydration damages the cells not the organs. (p667.) As the electrolytes build up because the increased urea is not excreted and the kidneys are not being properly perfused, sodium, potassium, chloride, the acid base balance increases to the point of "uremic coma." "They start accumulating acids because they are not excreting the excess acids that the body produces." (p670.) The uremia produces a foul odor in the breath (p673), which attendant Von Grundelle described smelling on November 22, 1995. Paul Greenwood, Scientology executive, also told the police that he smelled a foul odor when he entered Lisa’s room on December 5, 1995, to take her to the hospital. (See Flag’s Exhibit No. 2, p4, of the Police Investigative Report). Although Dr. Bandt has diagnosed many deaths by dehydration, he has never seen "uremic frost", a white substance produced through perspiration of urea, if the person continues to sweat. (pp673-674.) He has seen many instances of babies dying from dehydration and the mothers claiming the babies were urinating when in fact it was watery diarrhea, common in cases of dehydration. (pp679-680.) Even with the Boykin report of 12/1/95 stating that Lisa urinated five times in the past 24 hours does not negate the diagnosis of prerenal azotemia. (p683.) Dr. Bandt found no errors in the way the vitreous was collected, stored, transferred, or tested. (p696, p749, p750.)

Lisa’s dehydration was progressive to the point of 4-6 days before death she lost 12-20% of her body weight in water. (p704.) Normal water intake per day is around 1,500ml with urine output of 600-800ml per day. (p706.) Acute tubular necrosis, ATN, occurs when there is acute renal failure or during the normal dying process. Dr. Bandt was not able to determine if the tubular necrosis he saw microscopically was ATN or the result of the normal dying process. We do know from Dr. Fogo’s review that she did not see ATN, but she definitely saw evidence of high protein intake, dehydration, or both. Dr Bandt did not believe that Lisa had ischemic renal failure. (p708:4-5.) On the day she died, Lisa was in the late stages of prerenal azotemia and renal failure, suffering from uremia, all from dehydration. (p709.) Prerenal azotemia is a form of renal failure. At the very end of her life, she probably was an ischemic, in the late stage of renal failure. (p711, p846.) At the time of death and shortly before, Lisa was no longer oliguric, (putting out small amounts of urine), but rather anuric, (putting out no urine at all.) (p718.) Contrary to the defense argument, no one states that Lisa’s kidneys were shut down for ten days. Dr. Bandt states that they were not functioning very well. (P. 452:11). Sodium and potassium and chloride can be stable for years in an unrefrigerated state. (p726.) Based on the chemistries and the autopsy results, Dr. Bandt believes that the attendants’ testimony is "pure fantasy." (pp767-768.) Dr. Bandt has been previously qualified as an expert witness to testify on cause of death based on vitreous chemistries, but not strictly electrolytes. (p782.) Dr. Bandt, similar to the pulmonologist, Lawrence Repsher M.D., could not find any evidence of a blood clot in the lung in the major artery. 814 17 A. Well, these were very small vessels. 18 They were not large arteries, they were in 19 vessels that would more likely be classified 20 as arterioles rather than arteries, they were 21 that small

815 12 Q. And what is it from those slides you 13 saw yesterday, which of the slides did you 14 rely on in concluding that the cause of death 15 was a pulmonary embolus? 16 A. None. (Bandt Deposition - Exhibit 39.)



The clots were not attached to any vessel nor totally occluding. (p816:21-22.) Therefore, these clots would not result in death. Dr. Bandt also explained that there is no trauma in the popliteal vein. 836 9 . . . first of all, there's no 10 evidence of inflammation in the wall of the 11 vein, and that is usually why trauma causes B 12 is a direct cause of venous thrombosis, is 13 there's trauma to the vein wall, sets up an 14 inflammatory reaction, disrupts the 15 endothelium, and the blood tends to clot and

16 adhere to the wall of the vessel. There's no 17 evidence of that. 18 Secondly, there's no evidence of 19 older trauma because if there is trauma that 20 deep, then there should be bleeding in there 21 at the time of the trauma, and within a few 22 days after hemorrhage into particularly fatty 23 tissue, you start seeing hemosiderin, which is 24 deposits of an iron protein that derive from 25 the breakdown of the red blood cells by the

837 1 body's microphages.



The lack of evidence of death by pulmonary embolism simply confirms again that death was due to severe dehydration.

VI. THE SUPPORT OF THE SCIENTIFIC PUBLICATIONS Not only do the many articles relied upon by the defense support the science of the Plaintiff’s experts on cause of death and the reliability and use of vitreous, but there are more to be separately filed. Let’s look at the defense exhibits. A. DEFENSE Exhibits

On page 1635 of Exhibit 14, the article states that embolism develops particularly after "lengthy convalescence involving bed rest." This is also conceded by Robert Davis in both of his affidavits. What caused the bed rest? The only evidence as to a cause of Lisa’s extensive bed rest is the profound dehydration caused by the recklessness of FLAG’s attendants to insure she was adequately hydrated. There were two physicians, at least one had been previously licensed, who knew she was inadequately hydrated. Janice Johnson wrote on the December 1, 1995 log that Lisa needed a quart of fluids at 1:00 a.m. and then came back at 9:00 a.m. and said she needed 2 liters of fluid as soon as she awoke. Johnson had just sedated her with a strong muscle relaxant of prescription magnesium chloride followed by 5 capsules of prescription sedative, chloral hydrate! In FLAG’s Exhibit 16, Dr Bernard Knight refers to Dr. John Coe as the authority who is "best known in forensic pathology and his writings should be consulted for detailed information" on post-mortem chemistry. Dr. Knight comments on the reliability of vitreous humor as follows: Some substances are more stable, however, and when results are carefully interpreted, considerable information can be obtained. Urea and creatinine are stable post-mortem, with little variation even up to 100 hours after death, so the diagnosis of antemortem nitrogen retention is quite reliable. (At page 92.) Dr. Knight, an authority relied upon by FLAG, cites to Dr. John Coe six times in his section on vitreous use and demonstrates that vitreous humor is reliable even if it is extracted 100 hours after death. Lisa’s vitreous was extracted 13 hours after death if we believe the story of the attendants as to the time of death. Further, what Dr. Knight is referring to when he speaks of unreliable vitreous testing are substances that are not considered to help diagnose dehydration. Dehydration is diagnosed by examining the levels of elements such as urea nitrogen, sodium, and chloride. Dr. Knight states that these elements are very stable in the vitreous. That is why forensic pathologists test vitreous when dehydration is suspected. Postmortem urine and serum are not considered.

At page 93, found at FLAG’s Exhibit 29, Dr. Knight states that vitreous is preferred over postmortem blood for chemical analyses. As stated by Dr. Coe, Dr. Knight agrees that if the vitreous potassium is less than 15 mmol/l, then the vitreous sodium and chloride are reliable for testing electrolytes. Lisa’s vitreous potassium was under 15mmol/l! Dr. Knight concludes that if the vitreous sodium is greater than 155, (Lisa’s was 180), and the chloride is greater than 135, (Lisa’s was 161), and the urea is greater than 40, (Lisa’s was 300), then this is a "reliable indication of antemortem DEHYDRATION." (Emphasis added.) (At page 93.) Note there is no upper limit stated. FLAG’s Exhibit 21, the St. Petersburg Times article of March 9, 1997, correctly represents Dr. John Coe as the "worldwide expert on post-mortem chemistry." In addition to Dr. Coe, the Times sent the full autopsy report with the vitreous results of 2-01-96 to four other forensic pathologists. Dr. Ed Friedlander, the Chairman of the Pathology Department at the University of Health Sciences in Kansas City, Mo., is quoted as saying that the attendants, "even a lay person who was caring for her, has a lot of explaining to do." Dr. Friedlander did not express doubts about the vitreous testing. Rather he expressed doubts as to the veracity of the version of events by Scientology, who alleged that Lisa suddenly fell ill on the last day of her life. We now know this was false. Also quoted is Dr. Ed Wilson, Deputy Medical Examiner of the state of Oregon and who sits on the Board of Directors of the National Association of Medical Examiners. In responding to FLAG’s version of Lisa’s death, Dr. Wilson said: "That’s really hard to buy." All five pathologists contacted by the Times agreed with Dr. Wood’s opinion that Lisa was severely dehydrated.

There has not been any change in either Dr. Wood’s opinion on severe dehydration or the written physical findings at autopsy of evidence of dehydration, including that of Dr. Robert Davis in the Scientology procured affidavits, of sunken eyes and lack of fluid in the chest and abdominal cavities, confirmed by repeated vitreous testings. Being the conservative and world renowned expert on post-mortem chemistries, Dr. Coe is quoted in the Times as saying with those high levels in the vitreous, the vitreous should be rechecked and it was. Dr. Coe is then quoted as saying: The readings (of vitreous) indicate McPherson did not get enough water and suffered severe dehydration. The high nitrogen and chloride readings also point to dehydration. She was not getting fluids and adequate medical help. Dr. Don Reay, Chief Medical Examiner in Seattle since 1975, opines that the high level of vitreous creatinine indicates that the kidneys could have shut down. Dr. Reay also agreed with Dr. Wood that the vitreous result would support the opinion that this level of dehydration would indicate that Lisa was not receiving water for 5 to 10 days and being unconscious for up to 48 hours. Dr. Reay also opined that the absence of fluids can thicken the blood, which promotes clotting. This is known as an increase in blood viscosity leading to clotting. Not one doctor in this case disagrees with this well established medical science.

Dr. Michael Graham, Chief Medical Examiner of St. Louis since 1989 and secretary/treasurer of the National Association of Medical Examiners opined that the vitreous indicated she was dehydrated. More importantly, he said that though it is rare, he has seen this high levels of sodium in fatalities. The urea nitrogen levels were "out of whack," just as Dr Bandt and Dr. Coe have said in deposition in this case. However, what Dr. Graham did not know is that the attendants were orally administering with a syringe continuous protein powder and little "free water" which resulted in the high levels of urea, which further results in kidney failure per Dr. Coe and Dr. Bandt. All of the pathologists contacted by the Times opined as did Dr. Wood that Lisa’s death was not sudden. This is of course contrary to the testimony of the attendants. Even the corporate counsel for FLAG, Elliott Abelson, is quoted in the article as saying: "We never said she appeared fine" in the days leading up to her death, which confirms the testimony of Petzold, Boykin, and Johnson, but is contrary to Arrunada’s testimony. As the ESTATE’S experts conclude, Dr. Wilson stated in the article that "There should have been enough warnings that she should have been taken for medical care." FLAG’S Exhibit 28, is an article written by Vincent J. DiMaio, M.D. and Dominick DiMaio, M.D. They rely in part on Dr. John Coe as the authority on vitreous. (Page 36.) On page 481, Doctors DiMaio state:

"Next to blood, the most important tissue for toxicological purposes is vitreous. In some ways, vitreous has an advantage over blood in that, caused by its acellular nature and relative isolation, it is less susceptible to biochemical changes and contamination. Because of this, valid electrolyte studies can be done on the vitreous that cannot be performed on the blood. . . . Analysis of postmortem blood for concentrations of sodium, potassium, and chloride give erroneous results. . . .Thus, one cannot use postmortem blood to accurately determine an individual’s electrolyte status immediately prior to death. Fortunately, electrolyte abnormalities in living individuals are often reflected in the vitreous. Because vitreous levels of sodium and chloride are valid, this makes diagnosis of ANTEMORTEM ELECTROLYTE IMBALANCES POSSIBLE. (Emphasis added!) "Because of the work of Dr. John Coe, the importance of vitreous as an agent in postmortem chemistry has been realized." Id. at 483. "POSTMORTEM DIAGNOSIS OF DEATH CAUSED BY ELECTROLYTE IMBALANCE DEPENDS ON ANALYSIS OF THE VITREOUS FOR SODIUM, CHLORIDE, AND UREA NITROGEN." Id., at 483. Please note the Doctors DiMaio never, never, never mention the use of a grab specimen of post-mortem urine in considering electrolyte imbalance. As do the ESTATE’S experts, Doctors DiMaio reject the use of postmortem serum electrolytes to determine antemortem electrolyte imbalance. They also report that diarrhea is a cause of dehydration in infants, not an indicator of hydration as stated by the defense experts. (Page 484.)

The glaring results of the Times’ interview of these pathologists from major metropolitan areas is that not one questioned the vitreous results. Not one stated that vitreous could not be used as the basis of an opinion on diagnosis or causation. even though they knew from the autopsy date of 12-06-95 and the Wuesthoff Hospital Laboratory test report of 2-01-096 that the vitreous was tested 57 days after autopsy and extracted 13 hours after the historical death. FLAG’s Exhibit 35, a memo to Ben Shaw from FLAG’S expert, J. Sebag, M.D., makes reference to his personal studies of vitreous. It in and of itself is of no significance since it has no reference to any research per acceptable scientific methods, nor does it state what was being tested and for what purposes. It is simply a self-serving letter. Further, his writings concern living patients with eye disorders. He is not a forensic pathologists who routinely diagnoses causes of death. Dr. Sebag is an Ophthalmologist! FLAG’s Exhibit 36, a very short article by Alan McNeil Ph.D., and others from Auckland, New Zealand, cites John Coe three times and opines that "the concentrations of sodium, urea, and creatinine in the vitreous humor change little over time, which means that it is possible to use these specimens to make postmortem diagnoses of RENAL FAILURE, SEVERE DEHYDRATION..." (Emphasis added.) McNeil simply proposes a new method of heating to enhance the readings of these components. FLAG’s Exhibit 37, an e-mail from ARUP, and Exhibit 40, a letter from ARUP to Lee Fugate, counsel for FLAG, simply state that vitreous is too viscous to test "without dilution." Wuesthoff Hospital Laboratory knew this and diluted the vitreous 10 to one, the same thing Dr. Wu and Dr. Bandt did at St. Anthony’s Hospital. ARUP also admitted that vitreous testing is not their specialty. (Exhibit 40.) FLAG’s Exhibit 51, an article by W.J. Jenkins, in 1952 opined that CSF urea is reliable guide for antemortem urea values, since pre-agonal and postmortem changes are very small. (Page113.)

FLAG’s Exhibit 53, an article by Frederick A. Jaffe in 1962 concluded his research and opined that "for the purpose of electrolyte determinations the fluid (vitreous) can be kept for long periods of time provided evaporation is prevented." (Page 235.) FLAG’s Exhibit 55, an article by Walter W. Jetter, M.D., confirmed that blood sodium and chloride fall after death. (Page 335.) FLAG’s Exhibit 58, is an article by William Sturner, M.D., an expert for FLAG, who FLAG has withdrawn from this case. He is similarly qualified to discuss the general acceptance of the vitreous testing more so than any other expert that FLAG has put forth since he has researched vitreous as a forensic pathologist similar to Dr. John Coe. Yet FLAG has withdrawn him. The only inference to be drawn from this withdrawal is that Dr. Sturner would not attack the general acceptance of the research and opinions of Dr. Coe nor would he say that this science, forming the basis of Dr. Coe’s and Dr. Bandt’s opinions are novel. Dr. Sturner also cites to Dr. Coe as a reference authority on vitreous. FLAG’s Exhibit 61 is an article by John Fekete, M.D., in 1965, where he researched 160 postmortem collections of blood and CSF. He concluded that postmortem blood urea nitrogen was stable. "THEY (UREA) WERE WELL WITHIN NORMAL LIMITS IN PREVIOUSLY HEALTHY PERSONS WHO DIED SUDDEN ACCIDENTAL DEATHS. POSTMORTEM BLOOD UREA NITROGEN VALUES HIGHER THAN 100 MG. % ALWAYS INDICATED RENAL OR EXTRARENAL UREMIA." (Page 973 -emphasis added).

Lisa’s serum and vitreous urea nitrogen in 1999 was 355mg/dl and the CSF urea nitrogen in 2001 was 358mg/dl, thus indicating renal failure or extrarenal uremia. FLAG’S Exhibit 62 is an article by Vincent DiMaio, M.D., who references Dr. John Coe, M.D. 6 times and William Sturner, M.D. once. He writes that "Vitreous humor (as opposed to serum)...has been accepted as being of use because of the ease with which the fluid can be obtained and the low risk of contamination. (p244, September 2001 of the American Journal of Forensic Medicine and Pathology, Vincent J. DiMaio, M.D., EDITOR-IN-CHIEF.) FLAG’s Exhibit 67 is a guide to specimen collection in live patients. FLAG’s Exhibit 68 is the article by F.V. Sander, 1923, first opined that "samples of human blood can be preserved for 5 to 6 days, and the values for non-protein nitrogen, urea, uric acid, creatinine, creatine, and sugar will have the same clinical significance as those values obtained by an immediate analysis of the blood. The urea...creatinine...of blood can be kept constant for at least 2 weeks (Page 15.)

FLAG’S Exhibit 71 is a letter from Frederic Rieders, Ph.D., retained by FLAG. His intellectual honesty is in serious doubt since he conducted improper testing of the vitreous and blood in November, 1999, by using different testing methods as Dr Coe warned against as early as 1972. Thus, Dr Rieders wasted the samples. FLAG’s chemical expert, Dr. Wu, advised Mr. Fugate to disregard this improper testing when they met with Dr. Michael Baden, M.D., in New York near Christmas of 1999. Yet Dr. Rieders writes his report in January of 2000, Exhibit 71, knowing that his testing was improper and that the only specimen he relies upon, the urine, is not a substance relied upon by experts in the published works who determine dehydration in postmortem vitreous, the only reliable substance to test. Further, the urine of Lisa was the only substance stored in a cup with a screw cap, with huge head space, which permitted continued evaporation for over a year after her death, thus resulting in obvious false readings. Dr. Rieders does not list one publication in vitreous nor is he cited once by any journal article on determining dehydration or the reliability of vitreous to determine antemortem values. FLAG’S Exhibit 72 is the ARUP’s guide to collection and testing of specimens in a clinical setting, i.e., testing on live people. It states that urea nitrogen is stable at ambient temperature for 24 hours, 3 days if refrigerated, and 6 months if frozen. Lisa’s sample was refrigerated within 10 minutes of extraction per the person who extracted it, Greg Daerr, who then refrigerated it in his autopsy refrigerator, which was then collected by the toxicology lab and refrigerated for two more days per Kirk Grates of the Toxicology department of the Pinellas Medical Examiner’s office, who then froze it on December 8, 1995, until a part of it was thawed and sent to Wuesthoff for testing on January 29, 1996. Every Friday per his routine, which would be 12-8-95, Grates clears out the tox refrigerator and places all samples in the tox freezer. FLAG’s Exhibit 77, Grates at 233:2-4. (See also FLAG’s Exhibit 75, Memo of Chief Investigator, Larry Bedore.) Thus, this procedure even met the ARUP guidelines! FLAG’s Exhibit 80 is a letter from Dr. Bandt of 12/13/99 reporting on the two tests of serum and vitreous in November and December of 1999. He states that the osmolality of 509 represents severe dehydration, since anything above 300 is considered dehydration.

FLAG’s Exhibits 82 to 91 are different references to shipping specimens of fluids. Ex. 91, ARUP, states that shipping in glass tubes should be avoided. Lisa’s was shipped in plastic tubes. The samples of vitreous sent to Wuesthoff were put in a plastic tube in between styrofoam in a box and delivered by Airborne the next day. The sample was cold since it had come out of the glass storage tube just as it thawed. The styrofoam kept it cold. No one has said that in this case the extraction, labeling of the tubes, refrigerating, freezing, extracting a thawed sample in a plastic shipping tube, overnighting to Wuesthoff, and the testing by Wuesthoff or St. Anthony’s or Orlando Regional Medical Center were wrong. Only Dr. Wu said the Sears refrigerator used by the medical examiner, which had a defrost cycle, "might" effect the vitreous reliability. However, he could not site to any journal article which would support his speculation. What cements the consistency of the samples is the osmolality. Therefore there is no evidence of questionable test results. "...sodium, potassium, and chloride and urea are... very stable..("for years")...need not be refrigerated..." (Bandt 6-5-01 Deposition, Volume 5, pp726-727.)

FLAG’s Exhibit 112 are letters from internal medicine physicians who opine that dehydration is not a risk factor for thrombus. However, they certainly concede that immobilization and stasis are risk factors for development of thrombus. For example, see letters of Dr. Berkman, Dr. Cohen, and Dr. Levin. However, Dr. Goldberg did in fact find reports of dehydration was a major contributing factor to thrombus formation. In the deposition of FLAG’S experts, they also conceded that (1), dehydration can cause stupor; (2), stupor can cause immobility; and (3), immobility can cause thrombus. FLAG’S Exhibit 115 is Wintrobe’s Clinical Hematology, 9TH Edition, 1993. There it states that dehydration from any cause results in "relative erythrocytosis," which is an "increase in the total number of red cells in the body as a result of... "loss of blood plasma." page 1245. This happens when there is "lower fluid intake, marked loss of body water, or both..." (Page 1249.) This is exactly the testimony of Dr. Bandt. The text then goes on to say that some symptoms may include "diminished mental capacity." (Page 1251.) In other words, stupor. Relative erythrocytosis is reported to cause thromboembolic disease. See page 201 of FLAG’s Exhibit 116. FLAG’s expert, Cyril Wecht, M.D. (Exhibit 40): 242 19 Q. Doesn't dehydration cause stasis of the 20 blood? 21 A. No. Again, except if you have an extreme 22 case, and somebody then is immobilized by virtue of 23 the stupor, coma, associated with dehydration, and 24 the kidneys begin to fail, again, in such a state a 25 lot of things are possible, and you might then get 243 1 some stasis more related probably to the 2 immobilization than to the actual chemical changes. 3 Q. And the immobilization being caused by the 4 stupor and the coma? 5 A. Yes. Then, by definition, you're just not 6 moving.

244 18 Q. Is deep vein thrombosis a complication of 19 psychiatric stupor? 20 A. No, other than a relationship to 21 immobilization. It's not the psychiatric nature, 22 but if there's stupor that results in prolonged 23 immobilization and no passive manipulation and 24 massaging of the muscles, especially of the calves 25 and so on, then I think, as in any person who is

245 1 lying around immobilized, there would be an 2 increased incidence of deep vein thrombosis. 3 Q. Can you give me a layman's term of stupor? 4 A. Stupor is a degree of unconsciousness but 5 short of coma. Stupor means that you cannot 6 respond, and there are gradations. As you go into a 7 stupor state, you still may have some degree of 8 consciousness, but in which you really have pretty 9 much lost your motor coordinative skills, your 10 sensory perceptive abilities, and mental acuity is 11 markedly dull, and then that keeps moving more into 12 a state unconsciousness, immobility, and then if the 13 condition causing it is unrelenting and irreversible 14 or is not reversed, then can go into coma, which is 15 a deeper state of unconsciousness. 16 Q. In laymen's terms can you define for me 17 uremic coma? . . . 25 A. Well, coma is the unconscious state caused 246 1 by uremia and uremia is a buildup of the nitrogenous 2 waste products in the body to such a point that they 3 become markedly elevated and cause that cerebral 4 dysfunction that leads to coma. It's the waste 5 products.

FLAG’s Exhibit 117 is a reported case of a high school wrestler in JAMA, (JOURNAL of the AMERICAN MEDICAL ASSOCIATION, February 23, 1979.) There the author stated: "Rapid weight loss through dehydration...(results in) [S]everal important physiological changes....decrease in muscle strength, plasma volume, cardiac output, renal blood flow, and other body functions...loss of 12% of his body weight (in one week)...rapid decrease in plasma volume that could be expressed as an increase in blood viscosity."

This article stated that this was just one of many reporting the same problem with wrestlers dehydrating themselves to lose weight. These prove the medical opinion expressed by Dr. Coe and Dr. Bandt as to the cause of Lisa’s popliteal thrombus and resulting pulmonary emboli postmortem: severe dehydration. It also confirms weight loss due to dehydration. Here the wrestler lost 12% in one week. Dr. Bandt stated that Lisa lost up to 25% water body weight from her two weeks or more of lack of proper hydration.

VII. CONCLUSION For the reasons above, the motion should be denied and attorney fees and costs incurred.





VIII. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by hand-delivery this 28th day of November, 2001, to the attached Service List.

____________________________________ KENNAN G. DANDAR, ESQ. DANDAR & DANDAR, P.A. 5340 West Kennedy Blvd., Suite 201 Post Office Box 24597 Tampa, Florida 33623-4597 813-289-3858/FAX: 813-287-0895 Florida Bar No. 289698 Attorney for Plaintiff



-------------------------------------------------------------------------------- [1]The Defemdants’ experts are Alan Wu, PhD., a chemist who runs a toxicology lab for Hartford Hospital; Michael Baden, M.D. forensic pathologist for the New York State Police; and Cyril Wecht, M.D., forensic pathologist and coroner for Allegheny County, Pittsburgh, Pa. [2]There is no mention of trauma to the popliteal vein in either the written autopsy protocol nor in the deposition testimony of its author, Robert Davis, M.D. [3]Coe Deposition at p461:13.