Beruflich Dokumente
Kultur Dokumente
rd
2013 AM SESSION ONLY, WAITING ON M
!r" #$% E#r%e&
C'$rt" Good morning.
C'$rt" Can you make your appearances?
Mr" #()*+" Yes. Good morning, your honor. Brian Panish for the plaintfs.
Mr" ,'&%e" Good morning, your honor. Kein Boyle for the plaintfs.
M*" C#+#(" Good morning. Kathryn Cahan for defendants.
M*" ,)(#" Good morning. !essica "te##ins Bina for the defendants.
Mr" #()*+" $ctually, (e gae them more than a (eek. $nd (e told you (hen (e (ere going to rest, and (e
did. &t doesn1t ma5er. & 'ust need to kno( 44
Mr" $t(#m" & (ould plan for ne+t (eek.
Mr" #()*+" 44 (hether (e should try to schedule for (itnesses on the ..th and .0th.
Mr" $t(#m" $nd & am trying to 44
C'$rt" *hen (ill you kno( on ?riday?
Mr" $t(#m" Certainly kno( (hen (e get here. Aideo that day.
Mr" #()*+" 9o court on )hursday.
Mr" $t(#m" Yes. *e hae argument on )hursday.
Mr" #()*+" *ell, no 'ury.
C'$rt" 3kay. "o ideo all day ?riday?
Mr" #()*+" Yeah. $ll right. "o let1s 'ust assume hypothetcally 44 & mean, there1s going to hae to #e some tme
(ith instructons, (ord form, arguments, tming of arguments. & (anted to talk a#out that. & don1t kno( if this
is the right tme or not.
C'$rt" *ell, & don1t kno(.
Mr" #()*+" & mean, & don1t (ant the arguments to go on for days and days.
C'$rt" 9o, it shouldn1t. & mean, there are some standard instructons in the area, right, in the cases?
Mr" #()*+" >ight.
C'$rt" "o in that case, there shouldn1t #e too much tnkering (ith the 'ury instructons.
Mr" #()*+" *e hae to go oer the erdict forms.
M*" ,)(#" )here are special instructons as (ell and t(eaking some of the ones (e su#mi5ed #efore #ecause
of the eidence, your honor. *e plan to su#mit ne( ersions.
Mr" $t(#m" )hat1s (hat (e (ere (orking on this (eekend, to look #ack through the entre record, see (hat
actually occurred, and compare that (ith the original, (hat (e proided, throughout the (eekend and
realiBing that the end is no(.
C'$rt" 9o. )hat happens.
Mr" #()*+" "o can & 'ust 44 is the court thinking a#out puCng 44 & (ould like to hae a limitaton on the tme of
arguments. "ame amount for #oth sides.
C'$rt" "o three and a half to four is (hat &1m hearing for argument. 2ae plaintfs 44 sounds like defendants
hae gone #ack to look at their 'ury instructons and do some reisions and restoratons. Plaintfs, hae you
had a chance to think a#out that?
Mr" ,'&%e" Yeah. *e didn1t hae ery many. & don1t recall if (e had any specials. But (e might 44 in looking at
(hat they hae, (e might propose a couple counter4specials. But our plan is to try to stck (ith caci as much as
possi#le.
M*" ,)(#" & think you had three or four specials.
Mr" ,'&%e" Yeah. *e had 44
C'$rt" *ell, hopefully it doesn1t sound like it (ill take too much argument.
Mr" #()*+" *e hae the erdict form.
Mr" ,'&%e" & think they1re going to 44
C'$rt" You think that1s (here the argument1s going 44
Mr" ,'&%e" & mean, & 44
Mr" #()*+" Based on (hat they1e su#mi5ed, (e hae a lot.
C'$rt" 3kay. 2ae you considered reising the erdict form?
Mr" $t(#m" *e are.
M*" ,)(#" Yes, your honor. *e1re going to #e proposing a reised erdict form (ith the t(eaked instructons. &
don1t think it (ill #e dramatcally diferent, #ut there (ill #e reisions.
Mr" ,'&%e" Your honor, if you recall, their erdict form (as a#out .7 pages long. $nd & think your honor
already indicated that the court didn1t #eliee they (ere going to go (ith all those <uestons.
Mr" #()*+" )hat1s going to #e their argument.
Mr" ,'&%e" )hat (ill #e argument.
M*" ,)(#" &f you recall, your honor, actually, #oth partes had the same num#er of <uestons, and & think your
honor (anted something slightly shorter. )here1s also another issue (ith the erdict form. &f you recall,
plaintfs needed to get a (aier from their minor clients regarding the fact that they (anted the damages to
#e 44 from all their clients, the damages apportoned indiidually for each client, as opposed to a lump sum,
and they (ere going to go get that (aier. & don1t kno( if that1s happened yet, other(ise the erdict form (ill
hae the damages payment in a lump sum.
C'$rt" & kind of remem#er something a#out that.
Mr" #()*+" Psa vs. Canavin 44 it1s Canavin vs. Psa is the case that (e1re proceeding under. *e1ll get the
appropriate agreement.
C'$rt" $ll right. %ake sure you gie that to me #ecause 44
Mr" ,'&%e" & think there1s an agreement #et(een the partes.
Mr" $t(#m" )here (as.
Mr" ,'&%e" )hey (ant a (aier from our clients.
Mr" $t(#m" &t (as agreed to, the (ay 44
Mr" #()*+" $nd the case is Canavin, c4a4n4a44&4n, vs. Psa, and it1s actually in the use note in the (rongful4
death instructon.
C'$rt" 3h, thank you. & can look that up, then.
M*" ,)(#" )he idea #eing, your honor, if you1re spliCng the damages from a lump sum, there1s argua#ly
conDict amongst each of the plaintfs, and they can certainly (aie that conDict, #ut they need to do so.
Mr" #()*+" $ctually, it1s the other (ay 44
C'$rt" "o you don1t ask on the erdict form for them to apporton the damages among the plaintfs or 44
Mr" #()*+" You do.
M*" ,)(#" 2istorically, your honor, it1s done as a lump sum. )hey (ant apportonment. )hat issue came up
#efore. $nd the case la( says you can hae apportonment, #ut you need a (aier.
Mr" #()*+" ?irst of all, it1s not historically done in lump sum, it1s historically done in apportonment so the
conDict doesn1t occur. But (e (ill get the (aier. )hat1s for us to do.
Mr" ,'&%e" Yeah, that1s for ours. Presuma#ly, #oth sides representng the indiiduals in the company might
hae their o(n conDicts.
C'$rt" >ight. )hat1s your concern. Eepends on ho( your clients (ant to do it.
Mr" ,'&%e" >ight.
Mr" #()*+" *e don1t (ant to hae a su#se<uent, assuming that happens, issue regarding that.
C'$rt" 3kay. &1ll read the use note. Eo you remem#er (hich 'ury instructon?
Mr" #()*+" & can ,nd it for you.
M*" ,)(#" Pro#a#ly /: 44 (hateer the one on (rongful death is. /:/. or /:F..
C'$rt" 3n the (rongful death.
Mr" $t(#m" $nd (e kno( (hat that1s like, haing done that for days startng and not startng for months
later. $nd so that1s (hy &1e indicated as soon as & kno(, &1m going to let you kno(. $nd you1ll certainly hae, at
a minimum, ,e days to do so.
Mr" #()*+" ?ie days? 3kay.
C'$rt" $ll right.
Mr" #()*+" $ll right. "o that1s )hursday.
Mr" $t(#m" ?riday morning. )hat (ould #e *ednesday startng. $nd & (ill stck to that, %r. Panish. & kno( &
(ill hae that.
C'$rt" 3kay. )he issue that & hae that & (anted to raise (ith you is &1e spoken to sergeant *heatcro@, (ho is
no( retred from the sherif1s department and no( does court security. $nd he has suggested to me 44 actually
suggested it a (hile ago, & 'ust haen1t raised it (ith you 44 is partal se<uester during the deli#eratons. $nd
that has a (hole procedure associated (ith it. $nd #efore & tell the 'ury that that1s (hat (e1re going to do, &
(anted 44 & stll call him sergeant *heatcro@, een though he1s retred 44 #ut to 'ust meet (ith you and to
descri#e 'ust to you (hat that procedure entails so that you can tell me if you hae any concerns or if you hae
any suggestons or critcisms or anything else. "ome of you may hae e+perience (ith that, and may#e you ,nd
some things (ork #e5er than others. 2e descri#ed it to me, #ut & think he should present it to you, and then
you can e+press your concerns to him, and if you hae concerns, & guess e+press them to me. But & (ant to stay
out of that. &t1s really a security issue. But & (ant you to hae informaton a#out ho( it (orks, and if you hae
an o#'ecton to it. & don1t kno( if you hae an o#'ecton to it no(, if you do.
Mr" #()*+" *ell, & think 44 (hen you say H"ergeant,H is that the gentleman that1s in charge of the court
security?
C'$rt" >ight.
Mr" #()*+" 3kay. *ell 44
C'$rt" 2ae you seen him? )all, thin guy?
Mr" #()*+" Yeah, & kno( (ho he is.
C'$rt" *heatcro@.
Mr" #()*+" & kno( (ho he is, retred from I.$.".3., and he is in charge of court security. *e1e 44 he1s #een
around. &1e seen him around.
C'$rt" 2e proides 44 he (as head of 'udicial security.
Mr" #()*+" $nd no( he1s in charge of eerything?
C'$rt" )he (hole thing.
Mr" #()*+" $nd he1s #een around during the trial. &1e spoken (ith him. & don1t kno( ho( you (ere planning
on 44 (as it that the la(yers (ould meet (ith him separate from the court, or (ould he come and meet (ith
the court? 2o( (ould you propose it?
C'$rt" Yeah. Because it1s security related and sensite, it1s something that isn1t going to #e made pu#lic. "o
it1s something the pu#lic isn1t going to kno( a#out. )hat1s the point of se<uestering. &t1s a partal se<uester,
not a full se<uester. & think you need to #e a(are of (hat that entails. %ay#e not the e+act details of it all, #ut
the general procedure. $nd if you hae any concerns a#out it, you can e+press your concerns or suggestons to
sergeant *heatcro@.
Mr" #()*+" "o is it the plan that (e (ould meet (ith the sergeant (ith the court, or #asically (hat is the
plan?
C'$rt" & (as 'ust going to hae him do a presentaton to you in the 'ury room and e+press to you (hat he1s
allo(ed to e+press to you. $nd you can tell him your concerns. & (asn1t going to #e inoled in it, #ecause,
frankly, & really 44 security is mostly their thing. & mean, they decide the security. *e hae ery li5le input. *e
hae some, #ut not a lot in terms of ho( it1s done.
Mr" $t(#m" & think pro#a#ly )hursday a@ernoon, your honor, #ecause )hursday morning is the argument. "o
if you (ant to e+plain )hursday a@ernoon.
Mr" #()*+" & got to go to 44 & hae to take my son to a 44 & (as going to ask if & could go to take him to a medical
appointment. "o & (ould #e happy to do any other tme. 3r defense could meet (ith him, and then (e could
meet (ith him and <ueston him. & mean, & hae some idea (hat he1s pro#a#ly going to say, #ut & (ould like to
talk to him a#out it.
C'$rt" 3kay. "o 44 #ut &1d really rather do it all kind of together 44
Mr" #()*+" 3kay.
C'$rt" 44 so you1re a(are (hat they1re saying and their concerns.
Mr" #()*+" 3kay. "o the :th? *e should #e ,ne to do it then.
Mr" $t(#m" You mean at the same tme (e1re doing the 'ury instructons, erdict form on the :th, .;th?
)hat1s ,ne.
Mr" #()*+" & mean, eery#ody should #e there together. )hen (e could take out an hour of tme and meet
(ith them.
Mr" $t(#m" )hat1s ,ne.
C'$rt" 3kay. "o the :th or .;th?
Mr" $t(#m" Jh4huh.
C'$rt" 3kay. &t shouldn1t take long, #ut, you kno(, & think you should #e a(are of (hat it entails.
Mr" $t(#m" Certainly, partcularly the fact it1s a partal se<uester. )hat comes in ery diferent forms, so &1d
like to hear (hat he has to say.
C'$rt" Yeah, and (hat they (ant to do. $nd they1e #een a(are of the issues that hae come up throughout
the trial. "o & think he has 44 at least from my discussions (ith him, he has a ery speci,c idea of ho( he thinks
it (ill (ork. $nd he1s done it #efore, so he1s a(are of ho( it (orks and (hat (orks. $nd if any of you hae any
suggestons or concerns, you can also raise them. "o, any(ay, 3K. "o the :th or .;th, then, &1ll hae him e+plain
44 meet (ith him in the 'ury room, and you can talk (ith him a#out it.
Mr" #()*+" "ure.
C'$rt" & don1t kno( ho( detailed he1s going to get (ith you, #ut & think he1ll gie you a general outline of ho(
it (ill (ork. $nd then he1ll hae to hae a discussion (ith the 'urors at some point, too.
Mr" #()*+" >ight. Because 44
C'$rt" But & (ant to run it #y you ,rst, to get that done, and then & can e+plain to the 'ury (hat1s going to
(ork. 3r he can e+plain to the 'ury. & (on1t e+plain. &1ll hae sergeant *heatcro@ e+plain it to them.
Mr" #()*+" )hat1s done priately, right?
C'$rt" &t (ill #e reported, #ut a sealed transcript. &t (ill hae to #e sealed, de,nitely, #ecause that1s
something 44 (e o#iously can1t hae people kno(. Eefeats the purpose of the se<uester, so 44
Mr" #()*+" $nd (ould the la(yers #e there (hen that (as done?
C'$rt" & don1t think so. & can ask if that1s something that the la(yers should #e 44 & don1t kno(. )hat1s a good
<ueston.
Mr" #()*+" *ell, & guess 44
C'$rt" & don1t kno(.
Mr" #()*+" *e can take that up (ith him (hen (e talk (ith him.
C'$rt" Yeah. 9eli1s 'ust raised (ith me, and you1re right, (e had a discussion (ith sergeant *heatcro@. )here
(ould #e details that (ould #e disclosed to the 'urors that (ouldn1t #e disclosed to counsel.
Mr" $t(#m" >ight.
C'$rt" "o she1s right. You (ould not #e present for that. & could #e present. &1m not sure & need to #e, #ut &
don1t think counsel (ill #e, so that ans(ers your <ueston.
Mr" #()*+" *ell, there (ill #e a record of it, though?
C'$rt" )here (ill #e a record. *e can seal it. $nd & guess if you had to look at it, you could, a@er the trial.
Mr" #()*+" *ell, &1m uncomforta#le (ith some third party, een though & kno( he1s head of security, talking
to the 'urors (ithout haing 44 (ho kno(s.
for propofol addicton, looking #ack at their case ,les, crunching the data on those, and it (as something he
(anted to put together and pu#lish, and he hadn1t #een a#le to do that yet #ecause he hadn1t had the
resources aaila#le. "o $-G Iie agreed to proide the funding necessary to complete the study. )hat (as
disclosed. &t (as disclosed (hen he su#mi5ed the study, consistent (ith the Journal Of Addicton Medicine
rules for pu#licaton. )he actual pu#lished artcle has a li5le #lur# at the end that says H)hanks to $-G Iie for
the unrestricted funding.H so that (as sort of phase &&. $nd all the three phrases are temporally distnct as (ell.
2e sort of ,nished the consultng (ork, he did the study, (hich (e funded #ut (as not part of consultng for
us. )hat (as something he #egan (orking on in 0;;8 and ,nished and su#mi5ed for pu#licaton in, & #eliee,
late 0;.0. $nd then in !anuary 0;./, (e retained him as a testfying e+pert to talk a#out life e+pectancy and
addicton generally and also to talk speci,cally a#out propofol addicton. 2is study doesn1t really relate to the
issues that he1s testfying a#out, #ut (e allo(ed full e+ploraton of it in his depositon to the e+tent if he read
anything during the consultng period, or looked at anything during the tme he (as (orking on his study that
added to his kno(ledge #ased on propofol, and he said there (as nothing speci,c that comes to mind, #ut (e
sort of opened the doors on that, let them e+plore it. )here1s no 44 this is not one of these cases (here
some#ody does, you kno(, modeling of an accident untl they get a really good model, and then they said all
the old stuf is consultng, and only this one good model for us is testfying. *e1re not shielding anything (ith
that. $t the same tme, the case la( is clear that someone1s (ork as a consultng e+pert, to the e+tent that it is
not co4e+tensie (ith their testfying (ork, does not lose (ork4product protecton (hen they1re conerted to a
testfying e+pert. Certainly, on a go4for(ard #asis, once someone is designated as a testfying e+pert,
eerything is open and fair game. $nd (e1re actually 44 #ecause there1s no there, there1s no secret or issue (ith
his consultng (ork, (e (ere pre5y generous (ith allo(ing plaintfs to e+plore that and talk a#out the kind of
(ork he did. $t the same tme, you kno(, (e o#'ected to discoery seeking his e4mail correspondence (ith us
during that tme, #ecause (e1re not re<uired to (aie the (ork4product priilege. *e didn1t (aie it. )here
(as no moton to compel a#out that. *e (ent through all of this the end of march, #eginning of $pril (hen
his depositon occurred. *e sent e4mails #ack and forth on the case la(, and it ended (ith an e4mail that & sent
saying H(ell, here1s our reading of the case la(.H there (as neer a moton to compel, neer an issue there.
C'$rt" %oton to compel?
Mr" #()*+" *hat?
M*" C#+#(" Eocuments relatng to his consultng ,le, to the e+tent that one e+ists, or correspondence from
the consultng phases of his (ork. $nd so (e think it (ould #e improper to raise that no(. )he other thing that
our moton in limine addresses is, (e hae no pro#lem (ith plaintfs talking a#out the fact that (e funded 44
$-G Iie funded the study, the amount that (as paid, ho( Er. -arley feels a#out haing the study pu#lished,
things like that. But (e think that their 44 and in fact their oppositon con,rms that they (ant to infer that
there1s some conDict of interest for Er. -arley in pu#lishing this study at a tme (hen he (as retained #y $-G
Iie in a consultng capacity. )he study (as su#mi5ed for pu#licaton prior to the testfying e+pert engagement
#eginning, although it (asn1t pu#lished untl later #ecause these things take a (hile. But it (as su#mi5ed for
pu#licaton #efore he (as retained as a testfying e+pert.
C'$rt" 3kay. &t (as pu#lished in 0;.0?
M*" C#+#(" &t (as march 0;./ it (as pu#lished.
C'$rt" 3h.
M*" C#+#(" 2e su#mi5ed it #ack in the fall of 0;.0, and it (as !anuary of 0;./ (hen (e asked him to testfy
for us.
that (as talking a#out (hat the indices (ere for a person (ho tends to fall in the category of a person using it.
&n looking into it, (e found a couple people, including Er. -arley, (ho (ere preeminent people on it. "o (e
reached out to him, sort of (orked (ith him, said, Hgie us some artcles, (hat do you kno( a#out it? Can you
ans(er these <uestons?H
C'$rt" But your interest in it (as generated #ecause 44
Mr" $t(#m" )he case.
C'$rt" 44 of the case.
Mr" $t(#m" $#solutely, no <ueston. )he case. )rust me, & (asn1t interested in it preiously. & hadn1t heard of
it preiously.
C'$rt" & think most of us hadn1t.
Mr" $t(#m" $nd so (e (ere talking to him, and at the tme (e (ere e+ploring a num#er of issues, and
during this tme (e (ere talking a#out studies, (hat studies e+isted, and there (ere some studies that (ere
talked a#out during the criminal trial, things a#out arious animals, sleep studies and stuf like that. $nd as (e
asked him a#out these types of studies and (hether he had #een inoled in them, he said, H(ell, &1e #een
doing them. &1e #een doing one for some tme on case studies that hae already e+isted. Been (orking on it
for years, #ut & don1t hae the funding to ,nish it at the moment. &n fact, if you all, or any medical facility you1re
aKliated (ith, are interested...H & said, H&1m not sure (e (ant to do that.H (e talked #ack and forth. &t turned
out to #e a de minimis amount, and it could #e something 44 not sure it (as 44 could #e something that 44
C'$rt" Could #e helpful.
Mr" $t(#m" 3r harmful. $nd at the tme (e (ere e+ploring eerything, not the least of (hich, (ere (e
going to hae counter4claims, all that kind of stuf. $nd (e said Hyeah, go ,nish it so (e can go ,nd out. "end
out the thing.H (e (ere not inoled in it, had nothing to do (ith it. &n the end, it didn1t #ecome something
releant to the testmony as an e+pert at all, #ut (e certainly didn1t kno( that going in, nor (as that the
reason (hy (e funded it. )he reason (e did it (as #ecause of the dearth of the studies. &t could #e useful or it
could #e harmful, and & didn1t (ant to ,nd us #eing in a place (here there (ould #e things out there #ad for
us or good for us.
M*" C#+#(" $nd, your honor, there (as no issue (ith them in<uiring a#out #ias, the study, funding. &n fact,
&1m intending to address that a fair amount on direct. But to the e+tent there (as a conDict of interest in the
'ournal pu#licaton standards #ecause not that there1s anything (rong (ith the artcle, not that the artcle1s
data is (rong or the analysis is incorrect, #ut that Er. -arley 44
C'$rt" )here is that concept, though, in funding research, right?
M*" C#+#(" >ight.
C'$rt" *hen you hae a, <uote, Hthe general concept of priate industry fundingH 44
M*" C#+#(" >ight.
C'$rt" 44 you kno(, Hresearch.H
M*" C#+#(" $nd he fully disclosed at the end of the artcle that (e proided unrestricted funding.
&mportantly, your honor, this is not a prospecte e+perimental study (here you say, & (ant to reach end point
+, as, you kno(, & (ant to sho( that propofol addicton is common in certain populatons or (hateer. )here1s
00 e+istng case ,les 44
C'$rt" >ight. Case studies.
M*" C#+#(" )here1s not a (ay to manipulate the data, een if you (anted to. $nd Er. -arley (ill say that there
(as no conDict of interest #ecause this is not like a drug company funding a study to get ?E$ approal for a
drug that it (ants to market and make money of of. *e1re not a repeat player in the pharmaceutcal industry.
&t 'ust doesn1t 44 there is no conDict, and he (ill e+plain that. But to allo( e+tensie cross4e+aminaton as to
(hether there (as a conDict, especially in light of the other testmony the 'ury has heard a#out, a diferent
kind of conDict of interest, it1s 'ust going to re<uire calling additonal (itnesses and an undue consumpton of
tme.
C'$rt" 3kay.
Mr" ,'&%e" )hank you, your honor. 3kay. ?irst of all, & don1t think the 44 let1s 'ust start (ith the conDict of
interest in the study. & don1t think the cross4e+aminaton on that is going to take ery long. &f you think it1s going
too long, you can stop us. But it1s ery clear, (hile he (as (orking as a consultant for $-G Iie in this litgaton,
he (as (orking on a study that he then 44 that (as funded #y $-G Iie, that he then pu#lished, that contrary
to (hat (as 'ust represented to the court, he test,ed e+pressly in his depositon that he relied on that study
and informaton learned (hile doing that study for his opinions in this case. )hat is a fact, it1s in our #rief, &
cited it, & <uoted it. & sho(ed it to you. )hat is a fact, 3K? 9o(, he is a mem#er of $.".$.%., the $merican
"ociety of $ddicton %edicine. 2e1s on the #oard. 2e1s #een on it foreer. )hat is the pu#licaton that pu#lishes
studies. &t1s a5ached to the #rief. &t1s called, "Addicton to propofol. A study of 22 treatment cases." no(, this
(as pu#lished a@er he (as disclosed as a testfying e+pert. &t (as (orked on (hile he (as a consultng e+pert.
2e clearly (as geCng paid #y $-G Iie for (ork on this litgaton (hile they (ere funding the study. 9o(, on
the last page of the study that 44 and (e (ere surprised to see on the last page of the study, it says, H)he
authors thank $-G Iie, IIC.H
C'$rt" 3kay. 2e (as #eing honest a#out the source of his funding.
Mr" ,'&%e" 2old on. Yes, 3K. Great. )he source of his funding. 2ere1s the pro#lem, your honor. )hat1s all (e1re
going to ask him a#out. *hat the $.".$.%. !ournal re<uirement states is, on the front page of the study you1re
supposed to say if you hae any conDict 44 &1m going to ,nish here, %s. Cahan, 'ust so you kno( 44 if there1s any
conDicts, and you1re supposed to put the source of the funding on the front page, #ut most importantly is the
conDicts. 9o(, a reader of this study is going to #e in the medical community, right? 3ne, they1re not going to
kno( (hat $-G Iie is #ecause, as they said, they1re not a repeat player, they1re a concert promoter.
C'$rt" *ell, they (ouldn1t kno( that if it (as on the front page or the last page.
Mr" ,'&%e" *ell, gie me a second, and &1ll ,+ it. But here1s (hat he said= rather than put it aKrmately in the
#o+ (here you1re supposed to put the conDict of interest, here1s (hat he (rote= Hthe author has no conDict of
interest.H (hat you1re supposed to (rite is= H)he funder of this study is $-G Iie, IIC. & am also (orking as an
e+pert (itness for $-G Iie, IIC, in a case a#out propofolH so the reader of this study 44 and that is clearly put
out in the standards. "o that1s the point. $nd the study1s already in eidence, the standards hae #een put into
eidence. &t clearly iolates the standards. & don1t (ant to do a mini trial on it. *e 'ust (ant to point out, Hhey,
Er. -arley, (hy didn1t you say 44 (hy didn1t you disclose in this paper that you (ere (orking for $-G Iie in a
litgaton?H that (ould #e like an e+pert doing a study for >.!. >eynolds to#acco company and not puCng on
there Hoh, #y the (ay, &1m their e+pert (itness in a litgaton.H that is pertnent informaton. &t1s clear. &t1s not a
trial (ithin a trial. &t goes to his honesty, his #ias. Goes to the efecteness of his study and that he relies on his
study for his opinion.
C'$rt" *hy didn1t the #oard point that out?
Mr" #()*+" Because they didn1t kno(.
Mr" ,'&%e" 2e1s on the #oard. & don1t kno(. 9o( & (ant to talk a#out consultng 44
Mr" $t(#m" *e kno( the ans(er.
C'$rt" Iet him ,nish.
Mr" #()*+" Can & say something on this point?
C'$rt" Yes.
Mr" #()*+" )he standards for pu#licaton 44 many artcles are taken out (hen this happens. )he standards are
in eidence of (hat he (as supposed to do. )he paper is in eidence. 2e clearly iolated the standard on
disclosure in a pu#lished artcle of his conDict of interest. )here1s no <ueston a#out that. )hat certainly goes to
the alidity of the study and his credi#ility as a (itness. 2e iolated the o(n standards for (hich this (as
pu#lished. )he editors haen1t #een not,ed.
Mr" ,'&%e" $nd, your honor, if it1s not a conDict, &1m sure he1ll tell us. 2e1s on the #oard of the $.".$.%., and he
can tell us (hy it1s not a conDict, #ut (e should #e a#le to point this out. 3kay. 3n his consultng security 44 and
this one really gets me ramped up 44 so they hired him as a consultant, right? )hey hired him in 44 the case (as
,led in "eptem#er of 0;.;. )hey hire him as a consultant in 0;.., right? )hey go all the (ay up, and they
disclose e+perts in ?e#ruary of 0;./, 3K? $t some point in tme 44 and Er. -arley doesn1t remem#er e+actly
(hen 44 and & put it all in the papers, and & put his <uotes. $nd he thought it (as strange. 2e didn1t understand
it. 2e got a call from them 44 and #y the (ay, (e think it (as shortly #efore the disclosure (as due. )he e+pert
disclosure (as due ?e#ruary 0;./. 2e got a call from them and they said, Hyou1re no longer a consultng
e+pert, you1re no( going to #e a testfying e+pertH, 3K? %agic, right? $nd no( (hat they1re trying to do is cut
us of from in<uiring a#out his t(o years of (ork. 9o(, %s. Cahan 'ust represented to the court there1s no
there, like there1s nothing they1re trying to hide. &f that1s the case, & don1t see (hy (e can1t ask. )he case that
they1re relying on is this natonal steel case. $nd (hat that case (as a#out, an e+pert (orked for a diferent
client in a consultng capacity. Eid a report. )here (as a su#se<uent litgaton. )his e+pert (as hired #y a ne(
client, and the plaintf in that case tried to get his report from the prior client. )he court in that case actually
held, H(ell, &1m going to do an in4camera reie(. )he trial court should do an in4camera reie(.H #ut this is so
#eyond that. )his is the same party in the same litgaton hired for purposes of litgaton, doing (ork for t(o
years, that they1re no( trying to cut of (ith a magic phone call conertng him from consultng to testfying.
9o( in eery trial, apparently you hire e+perts as consultng, then the day #efore disclosure, you say, Hyou1re
magically no( testfying, and no( the other party can1t ask for anything for t(o years.H that is outrageous.
)hey1re 'ust trying to game the system. $nd if there1s no there any(ay, (hy can1t & ask him a#out it? & asked
him if there (as a report in his depo. )hey tried to cut him of #ut he #lurted out, H& don1t remem#er.H so there
might not hae eer #een a prior report (e (ere trying to get. & 'ust (ant to ask him, Hhey, you (orked for
them for t(o years on propofolH 44 oh, & should also add he test,ed in his depo 44 and & cited it and gae it to
the court 44 that informaton he learned (hile consultng he relied on for his opinions.
C'$rt" You mentoned that.
Mr" ,'&%e" &t1s all fair game. "o 44 and also the study #efore. But he got #oth things= (hile doing the study he
got info he relied on, (hile doing consultng (ork he learned info he relied on. "o this is all his opinion. &1m
sorry &1m geCng so emotonal, #ut this is the most o#ious topic of cross4e+aminaton eer, #oth of these.
Mr" $t(#m" "ince (e1re doing the mode of Hramped upH here, & (ould like to make one some(hat collateral,
#ut & think it1s an important statement. )here is a period called discoery (here you get to do all kinds of stuf,
(hich includes #ringing motons to compel and eerything else. $nd the reason you do that is so (hen you get
to trial you can actually try the ma5er. )hroughout this case, plaintfs hae #een permi5ed to demand things
during trial that should hae #een demanded, (ere they going to do it, during discoery. $nd this is #ut the
latest e+ample. $nd & can go through the litany of (hat has occurred during this trial, doing additonal
discoery 44
C'$rt" *hat additonal discoery is he asking for?
Mr" ,'&%e" &1m not asking for anything. & 'ust (ant to ask him a#out the stuf.
Mr" $t(#m" &f he (anted to compel this material, if they (anted to go into this arena 44 this is something
that (e did #ack and forth at the tme. $nd (e said, Has a de,nite ma5er, no, you1re actually looking at the
case la( (rong, and let me e+plain to you the follo(ing,H (hich (e proided in march. $nd haing not heard a
(ord since doing that untl (e get here no(, and & (ould implore the court that things not #e permi5ed to
(ork this (ay. &f they (ere so ramped up on the issue, it (ould hae #een helpful if they (ould hae #een
ramped up in march #efore (e get to trial. & (ill let her do her argument. But & 'ust (anted to say, throughout
the course of this trial, eerything is #eing looked at ane( #y plaintfs. &t shouldn1t happen this (ay.
Mr" ,'&%e" Your honor, so (e can cut this of, &1m not asking for any e4mails #et(een Er. -arley and %r.
Putnam. %ay#e there1s some em#arrassing e4mail that %r. Putnam doesn1t (ant to come out. & don1t kno(.
*hat they1re trying to do is preent me from asking a#out the consultng (ork. )hat1s (hat (e1re talking
a#out here. )his isn1t a discoery moton. )his is cross4e+aminaton at trial. *e made the decision. $ll right.
)hey told us there (as nothing there any(ay, so (e didn1t #other the court (ith a moton to compel
documents, #ut & (ant to ask him a#out it.
M*" C#+#(" $nd (e hae no o#'ecton to them asking a#out it to the same e+tent that it (as asked a#out at
his depositon, (hich is, H(hat did you do as a consultng e+pert?H and at a high leel, he (ill say, H& got a
phone callH 44 and this is going to come out on direct 44 H& got a phone call. )hey said, 1hey, (e understand you
kno( a lot a#out propofol.1H he said, H(ell, to the e+tent any#ody kno(s anything, & do.H Hhey, can you put
together some materials for us? *hateer there is out there.H Hsure, & can do that.H Hsend them along.H that1s
the e+tent of the consultng relatonship. )here1s no report. )here1s no secrecy. )his idea of t(o years of (ork.
2e Billed, & think, /; hours of a consultng e+pert prior to #eing hired as a testfying e+pert. 2is (ork on this
study (as not in a consultng capacity for us. &t (asn1t in a testfying capacity for us. &t (as funded #y $-G Iie,
#ut it (as 44 that1s his (ork as a scientst, and it (as not part of the consultng scope of employment. $nd as
far as the study goes, they1re saying he should hae disclosed it on the front page. $nd (hen he comes in, he
(ill e+plain he disclosed (hat he (as supposed to disclose. )here1s a form you ,ll out (hen you su#mit
something for pu#licaton. )he informaton gets reforma5ed (hen it1s pu#lished. "o the fact that there1s not a
#anner #lack4#o+ (arning on the front page of the study as pu#lished, doesn1t mean that he didn1t follo( the
'ournal rules. 2e a#solutely follo(ed the 'ournal rules. $nd this smoking4gun footnote that says Hthere1s no
conDict of interest,H that1s #ecause there1s no conDict of interest under the standards. 2e1s on the #oard of the
$merican society of addicton medicine. 2e1s a fello( of the society. 2e kno(s (hat conDict of interest is in
this sphere, and he assessed it and determined there (as no conDict of interest. $nd so 44
C'$rt" &1m going to allo( the plaintfs to e+plore it. &f there1s no conDict, he can tell us there1s no conDict.
M*" C#+#(" 3kay.
C'$rt" $nything else?
Mr" ,'&%e" >eally #rieDy, your honor. *e (ere gien some e+hi#its today they intend to use. & don1t (ant to
(aste much tme. & (ant go through a couple of these. Eo you hae a set of these?
M*" C#+#(" & #eliee it (as handed up.
C'$rt" Yes. HPropofol for sleepH?
Mr" ,'&%e" Yeah. )hat1s the ,rst one.
C'$rt" "ays H>o(eH on it?
M*" C#+#(" )hat1s the #ig #oard (e #rought in last (eek that (e didn1t use (ith the doctor.
Mr" ,'&%e" )he only pro#lem & hae (ith that one, & think it can #e ,+ed <uick, if you look at the #o5om ro(,
on a couple of these, they hae like a dou#le leg that (ould indicate that there are things 44 that this happened
t(ice.
M*" C#+#(" 2uh4uh.
Mr" ,'&%e" Because other ones (ere a single leg.
C'$rt" You talking a#out the tny (ritng at the #o5om?
Mr" ,'&%e" *here it says, like, H#o+ of propofol.H
C'$rt" & don1t hae my glasses. & can1t 44
Mr" $t(#m" *e hae the #ig one here, your honor.
C'$rt" )hat1s all right. Iet me look at 44 3K. "o (hat a#out the t(o ro(s at the #o5om?
Mr" ,'&%e" *here it says, HLuinn for propofol.H the t(o on the further4most right.
C'$rt" *here it says, H>ogers trial transcriptH?
Mr" ,'&%e" 9o, no. &1m sorry. )he purple ro(. )he years 44
C'$rt" 3h, the purple ro(.
Mr" ,'&%e" "o the <ueston is, it1s (arnings to %ichael !ackson, and & don1t understand ho( this ,ts in (ith
(hat his opinion is. 2e test,ed at trial 44 & mean, sorry, at his depositon that he doesn1t #eliee %ichael
!ackson (as 44 he doesn1t hae enough informaton to kno( if he (as addicted to propofol. 2e may hae had a
physiological dependence and that ultmately (hat his opinion is (ith the ,nal slide is his prognosis is grae.
"o & 'ust don1t understand (hat all these (arnings to %ichael !ackson hae to do (ith the ultmate opinion in
the case. You kno( (hat & mean? *hat does it hae to do 44 and it1s 'ust argumentate.
C'$rt" &t is a li5le #it argumentate, #ut, any(ay.
M*" C#+#(" &t goes directly, your honor, to the life e+pectancy piece, and the (ay %r. !ackson (as using
propofol. 2e (as (arned repeatedly, Hthis is not safe,H Hthis is dangerous.H and the record is clear, he (anted
to pursue it year a@er year, tried to get it from a num#er of people. $nd so & think it ,ts into Er. -arley1s
testmony a#out life e+pectancy. $nd een though he doesn1t say there1s enough eidence that rises to the
leel (here he can #e, as a clinician, con,dent that there (as a#solutely an addicton, he does say there1s
a#use here, and this is part of the a#use, and it1s a reckless sense of one1s o(n health, and it1s part of his
opinion a#out %r. !ackson1s prognosis and life e+pectancy.
Mr" #()*+" &t1s argumentate as (arnings of %ichael !ackson. & mean, if he (ants to say this is eidence
supportng his opinion that he1s in grae risk, ,ne.
M*" C#+#(" *ell, they (ere all (arnings, your honor. $ll the testmony1s in the record.
Mr" ,'&%e" *arning1s a medical term. & mean, there1s (arnings on drugs, it1s the (hole 44 ?E$ gets inoled.
)o say Er. Cherilyn Iee saying that1s not something you should use at home is a (arning, or if Ee##ie >o(e
says, H*hat happens if you die?H &s that a (arning? &s that a medical (arning?
C'$rt" "ounds like a (arning.
Mr" $t(#m" &n terms of addicton, your honor, that1s precisely (hat it is. & think the 'ury understands (hat a
(arning is. But in terms of addicton, and in terms of one1s propensity, and, therefore, (hat the life e+pectancy
is, it goes to the issue of, you1re told not to do something, you1re (arned (hat the results (ill #e, and you do it
any(ay. )he recklessness issue is precisely (hat he (as talking a#out, and they (ere (arnings. You heard
(hat Cherilyn said. &t (as a (arning. You heard (hat Ee##ie >o(e said. "he said H9ot on my (atch, you1re not
doing this.H )hat1s a (arning. $nd one of the terms, he1s not going to heed the (arnings #y #oth those they
loe and the medical proiders, it1s going to the recklessness that forms his opinion.
Mr" ,'&%e" 9ot something he test,ed to in his depositon.
M*" C#+#(" &t is.
C'$rt" &1ll oerrule the o#'ecton. You can use the slide and use the (ord H(arning.H
M*" C#+#(" Your honor, can & step out a minute to adise the doctor a#out his rulings? )hank you.
Mr" $t(#m" )hank you, your honor.
J/RY ENTERS CO/RTROOM
2" 3kay.
A" 2ae thoughts a#out returning home there sometme.
2" $nd is 44 (hy is your license in 3regon inacte?
A" *hen you leae a state for a period of tme, if you hae a lo( pro#a#ility of returning, you inactate your
license, <uite frankly, for ,nancial reasons. $n acte license is more e+pensie.
2" &s there presently a #oard cert,caton for addicton medicine?
A" )here is.
2" $nd is it an $merican #oard of medical specialty #oard or some other #oard?
A" &t1s currently the $merican #oard of addicton medicine (ho underscores that specialty. $nd much like any
,eld, (hen it1s a ne( ,eld coming along, the $merican #oard of medical e+aminers doesn1t a#sor# you into
their fold, so to speak, untl there1s suKcient tme and training and e+perience and that sort of thing. %uch like
emergency medicine. *here emergency medicine (as .; or .0 years ago, (here there (as emergency
medical physicians, #ut there (as no a.#.m.e. Cert,caton. But there is a #oard, and &1m part of that
organiBaton, that1s helping moe addicton medicine for(ard so there (ill #e a fully4understood #oard. &t1s the
only #oard in addicton medicine, #asically, right no(.
2" $nd are you cert,ed under that #oard?
A" & am. & helped design the test and helped #ring that for(ard.
2" $re you currently #oard cert,ed in any other specialtes?
A" & am not.
2" $@er you completed your training, (hat did you do ne+t for (ork?
A" *ell, actually, & (as (orking (hile & (as in that addicton medicine training. & started of at a small
addicton facility in Georgia and (orked there for seeral years. )hat (as an eatng4disorder program as (ell as
a su#stance4a#use program. Eid that for three years. $nd then & (ent on to #e the medical director of a small
program in $tlanta called Park(ood 2ospital, (hich & did for seeral years. & then moed to a program for .G
years called >idgeie( &nsttute in $tlanta. )hat program has 44 it1s a large comple+, mult4tered program, that &
(as medical director for .G years. $nd then a@er that, & moed to a program called )al#o5 >ecoery Campus,
(here & (as a medical director for ,e years. $nd #oth those last t(o programs specialiBed in treatment of
addicted health care professionals and airline pilots.
2" "o let me 'ust make sure & got all the pieces of that.
A" &t1s a lot.
2" "o you 44 and in each of those three roles, you took care of patents (ith addicton disorders?
M*" C#+#(" $ppro+imately ho( many patents hae you seen and treated for addicton in the course of your
/; years, if you can estmate?
A" Personally hae #een the personal a5ending physician on pro#a#ly, & (ould guess, a thousand physicians.
$nd 44 a thousand patents. &1m sorry. 9ot all physicians. Because that1s 44 although & did that. & took care of all
types of indiiduals. $nd then in the facilites & superised the care for 44 my guess, it (ould #e north of G,;;;
patents.
2" 3kay. "o fair to say, you1e a lot of e+perience (ith people (ith addictons from all (alks of life, although
you hae a special focus on health care proiders?
A" >ight. &n all of those facilites, in those last t(o facilites, all types of patents can come, #ut (e (ould hae
kind of specialty programming for physicians. $nd (e (ould also 44 and 44 #ut & took care of house(ies and
people that (orked in all types of ,elds, and young adults, and that sort of thing as (ell. Yeah.
2" -er take care of any 44 (ithout telling me anything speci,c, hae you eer taken care of any irtually
(ealthy indiiduals?
A" Yes, & hae.
2" $ny famous people?
A" Yes. Luite a fe( 44 #oth of those facilites, #ecause (hen you get kno(n as a place doctors go, then the
doctors tend to refer their complicated cases to us. "o (e (ere (hat you (ould call a tertary care facility and
o@en (ould get people in the music or the 44 primarily music industry, #ut also some in the ,lm industry and
politcs, and that sort of thing.
2" "o outside side of your /; years of treatng patents, hae you also pu#lished scholarly (ork in the ,eld of
addicton?
A" & hae. &1m one of the authors of the $merican society of addicton medicine, that1s the parent
organiBaton, te+t#ook, and & hae contri#uted to seeral other pu#licatons that deal (ith types 44 (hat (e call
treatment typology, descri#ing the diferent types of treatment that are gien. $nd &1e pu#lished seeral
papers on understanding addicton and physicians. & also do a fair amount of training in that regard.
2" $nd the training, does that include presentatons to health care proiders and the general pu#lic?
A" $ll of the a#oe. 3ne of the things & found that & like to do is to speak and to train. $nd so & tend to
pont,cate more than & should.
2" $re you a#le to estmate a#out ho( many presentatons you1e gien oer the years?
A" G;, & (ould guess.
2" $nd hae you also spoken in the media a#out addicton?
A" & hae. &1e had some interestng e+periences in that regard. & (as consulted and interie(ed on t(o
specials called 44 they (ere called Hturning point.H they (ere prime tme, hour4long specials on addicton. 3ne
(as a#out the epidemic of heroin in high schools, one (as a#out su#stance a#use and ho( it1s changing its
character in the united states. )hat (as in the 1:;s. & also (as a consultant to 44 (hich (as actually a (onderful
e+perience 44 to Bill %oyers in a ,e4part series called Hclose to home,H (here he looked at the politcs and
science of addicton treatment. $nd (e (ere 44 our (ork (as kind of underscored in the treatment end, (hich
(as a (onderful e+perience (orking (ith that cre(.
2" $nd hae you also #een a guest on the 3prah *infrey sho(?
A" Yeah, & hae. &1e #een on the 3prah *infrey sho( t(ice, and that (as an interestng e+perience.
2" $nd in other media enues, other programs of that nature?
A" Yes.
2" $nd & think you mentoned you (ere a mem#er of the $merican society of addicton medicine. 2o( long 44
are you a fello(, also?
A" &1m a fello(, (hich #asically means (hen you get old there, they gie you this cert,caton saying Hyou1e
#een hanging around long enough, let1s gie you a fello(ship.H
2" $nd did you found the Georgia chapter of the $merican society of addicton medicine?
A" & did. $nd &1e #een on the #oard of a.s.a.m. .0 years. $nd (hen & (as part of that organiBaton, it (as 'ust
a Dedgling organiBaton. 9o( it1s really the primary oice of medicine concerning addicton issues. "o it1s #een
a (onderful e+perience to (atch that gro( oer the years.
2" Er. -arley, in the course of your (ork taking care of health care professionals (ith addicton issues, did you
come to learn anything a#out propofol and propofol addicton?
A" & did. $nd that (as 44 & did. )hat (as primarily #ecause & (as taking care of a lot of health care
professionals, and health care professionals are oer(helmingly the highest percentage of people that get into
trou#le (ith propofol and propofol addicton.
2" &s propofol 44 & understand that health care professionals are the ones that tend to hae propofol addicton,
#ut is propofol addicton common among health care professionals as an addicton disorder?
A" &t1s not. 3ur (ork sho(s that only 44 that een in health care professionals, appro+imately only ..6 percent
of them hae any e+perience or addicton to propofol. "o it1s unusual een in the health care professions.
2" $nd in your e+perience taking care of or #eing inoled (ith the care of thousands of patents, a#out ho(
many hae you seen that hae sufered from propofol addicton?
A" *e1e seen north of 0G, 06 cases. )he 44 and that formed the #asis of a study that (e did.
2" $nd that1s total oer /; years?
A" )hat1s total oer /; years. $lthough & do (ant to say that pro#a#ly there (ere tmes (hen, frankly, & missed
it, #ecause pro#a#ly there (ere people using the drug and not talking a#out it (hile they (ere in treatment
#ecause they (ere using other drugs.
2" Eid most of the patents that you see (ho hae propofol addicton hae other drugs of a#use as (ell?
A" $#solutely. Commonly alcohol, commonly opioids, commonly #enBodiaBepine drugs you1e #een hearing
a#out in this trial. "o rarely is anyone strictly using propofol. $ctually, &1e had may#e t(o cases, or, geeB,
pro#a#ly t(o or three cases 44 & don1t kno( the e+act num#er 44 that are propofol alone.
2" 2ae you personally eer had a case of someone a#using propofol (ho (as not a health care proider?
A" & hae not personally had a case that (as not a health care proider.
2" &s there a lot of literature, or at least scholarly literature, a#out propofol and the addictons?
A" )here1s not. )here1s a ery scant #ody of literature, especially a#out the addicton itself, its treatment,
something a#out the types of people that get it, ho( you #est help them. )hat literature is remarka#ly sparse.
2" *hy is that?
A" & think primarily it1s a num#ers game, the fact that there1s so fe( cases of it. $nd also there1s a tendency,
een if you1re a health care proider, to not talk a#out the propofol that you1re using, if you1re also using a drug
like fentanyl or alcohol or something like that. & think there1s also a tendency not to talk a#out it. $s & said
earlier, there1s also a #ias. & think patents dri@ing in and out of my treatment perhaps .; or .0 years ago, & did
an intake interie(, and & didn1t speci,cally ask the <ueston= Hdid you eer a#use or use propofolH pro#a#ly
untl the last .G years or so. -arly on, it (ould hae gone right oer my head. "o it1s also the fact that (e really
(eren1t looking for it.
2" &s there a consensus in the ,eld of addicton medicine that propofol is an addicte drug?
A" )here is a consensus, yes.
2" $nd is it that propofol is an addicte drug?
A" Yes. "orry a#out that.
2" "orry. &t1s one of those la(yer <uestons.
A" >ight. 3kay.
2" $nd you mentoned a couple minutes ago that you pu#lished a study a#out propofol addicton.
A" & did.
2" Can you 'ust tell us a li5le #it a#out that?
A" *ell, (hat (e did (as (e 44 this (as from our cases at the last place & (orked, the place called the )al#o5
recoery campus. &t (as one of those things, the other ,e physicians (ho (orked there, (e1d get a case in,
and (e1d scratch our heads and say, Hho( many of these hae you seen?H and so (hen & ,rst got there, (e
(ould (rite do(n case num#ers and kind of had a curiosity a#out it. $nd (e found that (hen (e (ere
looking, surprise, surprise, (e started ,nding more. $nd then at some point, one of the other physicians said
to me, Hyou need to pu#lish on that.H and, you kno(, & guess & follo( instructons. $nd so at that point (e
#egan to think a#out looking seriously at the data and ,guring out (hether (e could 44 you kno(, ho( you
learn in medicine is you get a #unch of cases, and you go #ack and look at them retrospectely and say, H(hat
did (e see there?H and that1s really the ,rst thing you do in research, is you say H(hat does it look like?H H(hat
are the presentatons?H H(hat do (e kno( a#out those types of people?H that sort of thing.
2" "o ultmately you put together a paper for pu#licaton. *as that paper pu#lished?
A" &t (as. &t (as pu#lished in the journal of addicton medicine, (hich is one of the #e5er 'ournals, and & (as
pleased to hae it do so.
2" $nd (as that a 44 ho( did you get funding for the (ork that (as necessary to pu#lish that paper?
A" Jp untl 44 as & said, earlier in the days, (e (ere 'ust kind of keeping track of the cases. $nd & (as a ?ull4
tme clinician seeing patents all day long, superising staf, didn1t really hae the tme to deote to that. $nd at
some point, during the 44 (hen & (as (orking (ith 31%eleny M %yers, the <ueston came up. & think & (as
speaking (ith %r. Putnam, and he said, H(ell, (hat do (e kno( a#out this?H and & said, H(ell, (e don1t kno(
much.H and he said, H(ell, ho( come?H and & said, H(ell, it1s 'ust not really (ell kno(n. &1e go5en a fe(
things.H and he said, H(ell, (ould it help if you kne( more?H and & said, Hyes.H and he said, H(ell, let us see
(hat (e can do to help you.H
2" $nd did there come a tme (hen $-G Iie agreed to gie you the funding to ,nish the study?
A" &t did.
2" Before that, this (asn1t the only thing you spoke to %r. Putnam a#out, right?
A" 3h, no. )his (as not the ,rst thing, no.
2" "o (hen did (e ,rst reach out to you to talk a#out propofol?
A" &t (as in appro+imately 0;.;, if my dates are right on that. 3r (as it 0;..? &t (as 0;... )hat1s right. &t (as
0;... & receied a call from %r. Putnam, and he said, you kno(, H(e need some help in understanding propofol
addicton.H
2" $nd it (as at or around that tme in early 0;..? Eoes that sound right?
A" )hat sounds right.
2" Eid 44 (ere you retained to help us learn a#out propofol?
A" )hat1s correct. )hat (as 44 the inital call (as, #ecause nothing is kno(n a#out it, you kno(, %r. Putnam
said, H(ell, (hat do you kno( a#out it?H and & said, H(ell, & don1t kno( much. & treated more patents than
anyone else.H and he said, H(ell, 3K.H so at that point (e (ent #ack and reie(ed the literature, and they
retained me as a consultant to reie( the literature, to take a look at the neurochemistry, ho( it (orks (ith
other drugs in the neurochemistry seCng to understand (hat (ere the other cases 44 (as there any literature
on (hat the cases looked like, (hat (as the lethality of the drug, ho( to+ic (as the drug. )hat sort of thing.
$nd & (as doing that kind of literature search for pro#a#ly si+ months, & (ould guess, of and on. *hen a
<ueston (ould come up, (e1d go #ack and forth (ith it.
2" $nd a#out ho( much tme oer that si+ months, ho( many hours do you think you spent in doing that
kind of (ork?
A" %y guess is a#out /; hours of, again, li#rary research, siCng the li#rary, reading 'ournals. $ctually e4
mailing colleagues, #ecause some of these things (ere pu#lished in 'ournals in Germany and Korea, and (e
had to get the actual artcles.
2" $nd did any of (hat you learned in that capacity form the #asis for something you1re going to #e ofering
an opinion on here in trial today?
A" 3nly 44 the only thing & learned at that point (as, & learned more a#out the neurochemistry from that (ork.
& learned more a#out the science of propofol. &1m a curious kind of guy, and it really helped me understand that
piece. "o in terms of my kno(ledge #ase, it e+panded my kno(ledge #ase.
2" But nothing speci,c that you learned that (as part of the #asis for an opinion you1re ofering here?
A" 9o.
2" $nd then at some point there (as another conersaton (ith %r. Putnam (here you said, you kno(, H&1m
(orking on this research, and & need someH 44 you kno(, H& don1t hae the resources right no( to pu#lish itH, is
that fair?
A" Yeah. &t (as a@er 44 say, it (as early 0;... &t (as pro#a#ly 44 it (as actually <uite a (ays do(n the road.
2" "ummer of 0;.0 sound a#out right?
A" )hat sounds a#out right.
2" $nd do you remem#er ho( much you told $-G Iie you (ould need to get the staf and resources
necessary to ,nish the study?
A" >ight. *hat they asked (as, you kno(, H(hat (ould it take?H so & put together a team of folks, my
coauthor, Er. )orin ?iner, a research assistant, statstcian, called up a couple editors. &1m not partcularly an
academic (riter, so & had to hire some#ody to type up the form, especially the statstcian. *e put together the
num#ers and sent a proposal of.
2" $nd the dollar amount, do you kno( ho( much that totaled?
A" )otal for all of us for a#out half a year1s (ork (as NG/,;;;.
2" $nd $-G Iie proided that money?
A" )hat is correct.
2" $nd did $-G Iie tell you anything a#out ho( they (anted the study to come out?
A" 9o.
2" Eid you agree to gie $-G Iie any informaton a#out your (ork as you (ere doing it?
A" 9o.
2" &n fact, did you tell $-G Iie that you (ouldn1t do that to us?
A" Yeah, a#solutely. & mean, that (as part of the decision. $nd, again, this is an academic paper, you kno(. &t1s
typifying propofol, and ho( it looks, and (hat it1s like. )hat sort of thing.
2" $nd so for that paper, you looked at e+istng case ,les, crunched num#ers, analyBed it, and (rote up
A" >eport on your ,ndings?
A" Yeah. )he #ulk 44
2" &1m sorry. & don1t mean to minimiBe the amount of (ork that1s inoled, it1s 'ust outside of my e+pertse.
A" )hat1s ,ne. )hat1s not a pro#lem. )he #ulk of the tme really (as spent going #ack in the archies of the
past 0; years in the treatment center and digging out charts and reading charts and all of us siCng do(n in the
#o(els of this place in the dark 44 it (as 44 you kno(, you 'ust read charts, and the charts are thick and only so
much that1s releant. "o (e spent tme reading all these charts and trying to ,nd other cases, (hich (e
actually did turn up a fe( more cases. Compiled all that informaton. $nd this (as patents that had already
#een treated, their outcomes had already #een determined years #efore. $nd (e decided (e (ere going to go
#ack for 0; years so (e could get an idea of not only, is this a common illness, so (e could get enough cases,
#ut has the incidence of the propofol addicton increased in health care professionals?
2" "o once $-G Iie agreed to proide funding, you didn1t discuss the (ork that you (ere doing?
A" 9o.
2" You didn1t sho( 44 did you sho( any dra@s of your paper to $-G Iie 44
A" 9o.
2" 44 or the la(yers or discuss it (ith us at all?
A" )he only discussion (as, Hho(1s it going?H and & 44 & (ould say some sort of grum#ling, (hining, Hthis is
takingH 44 no. )hat1s not true. &t (as, Hho(1s it going?H Hit1s going ,ne.H
2" $nd that (as HgoingH in terms of tming, not content?
A" )iming. Yeah. Yeah.
2" $nd did there come a tme (hen you completed a dra@ of the paper and sent it of to the 'ournal of
addicton medicine?
A" >ight. *e completed our ,rst dra@ 3cto#er of 44 some(here in 3cto#er of 0;.0.
2" 3kay. $nd (as there then some #ack4and4forth process to ,naliBe it for pu#licaton?
A" $#solutely. *hen you send something in to a peer4reie( 'ournal, you usually get it #ack, and the author 44
they get paid to look at it critcally. $nd so (e had to hae three full re(rites of the artcle. $nd, actually, it
improed the artcle dramatcally in doing that in its clarity.
2" $nd, again, did you discuss (ith us or the defendants anything a#out (hat (as in the artcle, or the
reisions you (ere making, or sho( us anything that you (ere (orking on 44
A" 9o.
2" 44 (hile you (ere doing it?
A" 9o.
2" $nd at some point 44 you said there (ere three full dra@s that you (ent through.
A" >ight.
2" *as it accepted ,nally for pu#licaton at some point?
A" Yes. -arly !anuary of 0;./ it (as accepted for pu#licaton.
2" $nd it (as su#mi5ed originally #ack in 3cto#er?
A" Yes.
2" $nd in that same #eginning of 0;./ tme period, did (e come #ack to you again and say, you kno(, H(e1d
#e interested in haing you come testfy as an e+pert in this caseH?
A" You did.
2" $nd (as that #ecause of 44 (ell, you may not kno( this. Iet me ask a #e5er <ueston. $t the tme that (e
asked you to #e a testfying e+pert (itness, had (e seen the pu#licaton that (as pu#lished?
Mr" ,'&%e" 3#'ecton. 9o foundaton.
C'$rt" 3erruled.
M*" C#+#(" Eid you send it to us?
C'$rt" You may ans(er.
A" 3K. &1m sorry. & didn1t hear. 9o, (e didn1t send it to you.
M*" C#+#(" 3kay. $nd it didn1t get pu#lished untl march of 0;./?
A" )hat1s correct.
2" But (e came to you and said, H(e1d like to hae you testfy as an e+pert (itness.H did (e hae you sign any
paper(ork at that point?
A" Yes. )here (as 44 &1m sorry. & don1t kno( the e+act 44 there (as some sort of a thing that allo(s
con,dentality of documents. &1m sorry & don1t kno( (hat you guys call it. But you had me sign that and said,
H#y the (ay, no( you1re an e+pert (itness.H and & 44 H3K.H
2" $nd the thing that (e had you sign, did (e hae you sign that so (e could send you materials from this
case?
A" Yeah. &1m sorry. & (asn1t clear a#out that. )hat1s e+actly (hy that (as signed.
C'$rt" *hen did that occur?
M*" C#+#(" !anuary 0;./.
A" yeah. )he end of !anuary.
M*" C#+#(" $nd (as that the ,rst tme you (ere proided any medical records or detailed informaton a#out
the eidence in this case?
A" Yes. )hat (as the ,rst tme & 44 & kne( hardly anything a#out the case #esides (hat & (ould read in the
media occasionally.
2" $nd did you agree to 44 you agreed to #e a testfying (itness for us?
A" & did.
2" $nd at (hat rate did you 44 (hat rate schedule did you set?
A" ?or record reie(, & think it (as /7G an hour, for depositon, it (as G;;, and to #e here today, it1s 8G; an
hour.
2" $nd that /7G an hour, is that the same rate you charged for the consultng (ork you did #ack in 0;..?
A" )hat1s correct.
2" 3kay. $nd a#out 44 since you1e #een asked to #e a testfying e+pert (itness, a#out ho( many hours hae
you (orked on this case?
A" )here1s an enormous num#er of charts. Pro#a#ly a#out 44 & (ould guess 8G to :; hours, & (ould guess.
Mr" ,'&%e" 3#'ect, your honor, if it1s calling for speculaton if he1s guessing, or if that1s his real testmony.
C'$rt" & think he said, Ha#out.H that1s an estmate. 3erruled.
Mr" ,'&%e" 2e said he (ould guess.
M*" C#+#(" $re you a#le to estmate?
A" 9o.
2" Eid (e talk a#out, generally speaking, (hat areas (e (anted you to ofer opinions in?
A" Yes, (e did.
2" 3kay. *hat are those areas, generally speaking?
A" Generally speaking, the issues (ere a#out (hether there (as addicton present of any su#stances in
%ichael !ackson1s history, my diagnostc impression of (hether that (as present. )he num#er t(o (as, if so,
(hich drugs? )he num#er three (as, you kno(, (hy do you hae that opinion? $nd then the last one (as,
ho( (ould this afect %ichael !ackson1s health and life going for(ard #ased upon the earlier conclusions?
2" 3kay. $nd (e1ll talk through each of those today. ?irst & (ant to 'ust coer (hat you looked at. "o generally
speaking, (hat types of materials did you reie( in order to reach your conclusions in this case?
A" & reie(ed medical records, although they (ere sporadic and scant. & mean, all the medical records came,
#ut stll, oer the length of tme, they (ere surprisingly short, & reie(ed testmony of many of the indiiduals
that had #een deposed preiously to my #eing retained, #oth physicians, people like %s. >o(e, & reie(ed
some hospital records, "anta YneB hospital1s records, & reie(ed interie(s or depositons (ith family. )hat sort
of thing.
2" 3kay. $nd at some point you also reie(ed some trial testmony a@er this trial had started?
A" Yeah. $@er the trial 44 &1m sorry. & thought you (ere talking a#out early on. Yeah.
2" $nd you said the medical records (ere scant. Eo you kno( (hether you (ere proided only a su#set of
the medical records that (ere aaila#le in this case or if there (ere only certain medical records aaila#le
coering certain tme periods?
A" >ight.
Mr" ,'&%e" 3#'ecton. 9o foundaton.
C'$rt" "ustained.
M*" C#+#(" Eid you ask to see all the medical records that (ere aaila#le in the case?
A" & did.
2" $nd do you hae any reason to #eliee that those (ere not proided to you?
A" & do not.
Mr" ,'&%e" 9o foundaton.
C'$rt" 3erruled.
M*" C#+#(" $nd did you 44 (as there an inital set of materials proided to you?
A" Yes, #ut in the olumes, & couldn1t tell you (hat (as in the inital and (hat (asn1t.
2" )hat1s 3K. &1m not going to 44 it1s not a test on that. But then did you get further materials at some later
point in tme?
A" Yes. )hey 'ust kept on coming.
2" $nd are you relying on some of the materials you1e reie(ed for opinions that you1re ofering here today?
A" & do. & did.
2" $nd do you hae a list up there (ith you of the materials 44
A" & do.
2" 44 that are most pertnent to your opinions?
A" & do. "ome(here in this stack.
M*" C#+#(" $nd if counsel (ould like, & can share a copy of that as (ell.
Mr" ,'&%e" )hank you.
M*" C#+#(" $nd can you 'ust read for us the medical records 44 you don1t hae to read the e+hi#it num#ers,
#ut 'ust the names of the medical records that you1re principally relying on for your testmony here today?
A" & (ill. )he Ba+ley Producton, ?arshchian Producton, ?orensic Consultants %edical Group Producton,
?ournier Producton, Gordon Producton, Klein records, Koplin Producton, Ietelier Producton, %etBger
Producton, %urray medical records, %urray I$PE &nterie(, 9utrimed 2ealthcare Producton, 3da#ashian
Producton, the PalluckO)adrissi Producton, )he "anta Bar#ara County "herif1s 3Kce Producton, "anta YneB
Aalley College 2ospital Producton, "asaki Producton, "asaki summary of treatments, "lait Producton, Aan
Aalin Producton, Coroner1s report and to+icology report.
2" $nd are there 44 is there depositon testmony that you reie(ed that1s also partcularly pertnent to the
opinions you1re ofering? $nd for the depositons, to the e+tent that they1e #een 44 e+cerpts of them hae
#een played at ideos in trial, hae you also reie(ed those depositons?
A" & hae.
2" Can (e list the depositons, and the 'ury (ill remem#er the ones they1e seen so (e don1t hae to do it
t(ice?
A" 3kay. $nd &1m 'ust going to read 44
2" )he (itness list?
A" 44 the (itness list, & guess, is that right? Er. Eaid $dams, -llen Brunn, Er. $limorad ?arshchian, Er. "tuart
?inkelstein, Eaid ?ournier, %aritBa "hulman Glassman, Er. "tephen Gordon, Prince !ackson, >andy !ackson,
%ichael Iaperru<ue, Cherilyn Iee, Er. $llan %etBger, Er. Christne Luinn, Er. 9eil >atner, Ee##ie >o(e, Er.
Gordon "asaki, Er. "co5 "aunders, Er. "idney "chnoll, Er. %yer "himelman, Er. Eaid "lait, Er. *illiam Aan
Aalin, Er. Carl Airgil, >oland *illiams.
2" &s there also trial testmony that you1e reie(ed that1s partcularly pertnent to the opinions that you1re
ofering?
A" You1re asking me to read that as (ell, & take it?
2" Yes, please, and then (e1ll #e done.
A" 3kay. Er. Charles CBeisler, Er. "idney "chnoll, Er. Petros Ieounis, Karen ?aye, Kenny 3rtega, )rais Payne,
%ichael Iaperru<ue, Katherine !ackson, Eaid ?ournier, Ee##ie >o(e, Prince !ackson, Er. Christne Luinn,
Cherilyn Iee, Eaniel $nderson, Christopher >ogers and >ichard "ennef.
2" "o in additon to all these materials that 44 #y the (ay, is that eerything that you reie(ed in the case?
A" 9o. 9o. &t1s 'ust 44 it1s a long list, #ut it seems like it (as a lot 44 &1m 'oking. )here (as a lot more.
2" 3kay. &n additon to those materials that you1e 'ust read for us, are you also relying on your educaton,
your training, your e+perience for the opinions that you1re ofering here today?
A" & am.
2" You said, H&1e had a chance to reie( the testmony of Er. Ieounis (ho test,ed here last (eek.H
A" Yes.
2" Eid you reie( the part of his testmony (here he talked a#out (hether %ichael !ackson sufered from
addicton?
A" & did.
2" &s the <ueston of (hether %r. !ackson sufered from addicton important to the opinions that you1re going
to #e ofering here today a#out risk factors that afected %r. !ackson1s life e+pectancy?
A" &t is.
2" Prior to looking at Er. Ieounis1s testmony, #ased on your o(n reie( of the records, had you already
come to an independent conclusion a#out (hether %r. !ackson sufered from any drug addicton?
A" & had.
2" $nd (hat (as your 44
Mr" ,'&%e" &1m going to o#'ect to the ne+t <ueston as #eing cumulate.
C'$rt" 3erruled.
A" %y opinions did not difer as to the drugs he (as addicted to.
Mr" ,'&%e" %oe to strike.
C'$rt" )he ans(er is stricken. )hat1s not 44
Mr" ,'&%e" %oe counsel #e admonished for elicitng that.
Mr" $t(#m" Your honor, she didn1t elicit that. "he asked a diferent <ueston.
C'$rt" "he asked a diferent <ueston. 2e elicited a diferent ans(er. "o you need to ask him <uestons 44 &
thought you asked the prior <ueston. 2e olunteered.
M*" C#+#(" HyesH or Hno,H did you come to a conclusion 44
C'$rt" *hy don1t you lead him at this point?
M*" C#+#(" 3kay.
Mr" $t(#m" )hank you, your honor.
M*" C#+#(" Eo you #eliee that %r. !ackson sufered from addicton to drugs of a#use that is diferent 44
C'$rt" 9o. )hat1s not leading.
Mr" #()*+" &t1s the same thing.
C'$rt" Iet1s go to side#ar.
3t+e 4'%%'5)(6 pr'-eed)(6 5#* +e#rd #t *)deb#r7
C'$rt" $ll right. $ leading <ueston, Hdid you come to the conclusion that he (as addicted to propofol?H
Mr" $t(#m" )hank you.
M*" C#+#(" & thought the o#'ecton 44
C'$rt" )hat1s the <ueston. *ell, #ecause of the nature of the ans(er that (as gien 44 and &1m not saying you
asked an inappropriate <ueston. & thought it (as o#ious (hat you (ere trying to ask, #ased on (hat (as
going on. Perhaps the (itness didn1t understand it. & said, Hgo ahead and lead him.H that1s (hat & meant. &
understand you didn1t kno( (hat to do. But no( that you kno( 44
M*" C#+#(" Yes.
C'$rt" Counsel didn1t o#'ect. & assume that (as the <ueston that & intended that she ask. You (eren1t going
to o#'ect on leading, #ecause & 'ust said you could lead.
Mr" ,'&%e" )hat1s e+actly right. & (as (orried that 44 & mean, that (hat they (ere trying to do (as hae t(o
separate opinions. Giing an opinion that %ichael !ackson (as addicted to opioids. "he ,rst #rought out it (as
#ased on Ieounis, #ut then there (as a series of <uestons to say he independently came to the same
conclusions.
C'$rt" >ight.
Mr" ,'&%e" )hat1s the pro#lem.
C'$rt" 3kay. $nd & sustained your o#'ectons, so 44
M*" C#+#(" $nd your honor, & (as 'ust confused a#out (hat they (ere o#'ectng to. & thought they didn1t
(ant me to elicit from him 44 & thought they (anted me to hae Er. -arley say & reie(ed Er. Ieounis, & don1t
disagree, let1s moe to the life e+pectancy piece. &1m happy to ask a ne( <ueston, (as he addicted to propofol.
C'$rt" >ight. $pparently the (ay you (ere trying to get him to do it (on1t (ork.
M*" C#+#(" >ight.
Mr" #()*+" "o the <ueston is= Hdo you hae an opinion as to (hether or not %r. !ackson (as addicted to
propofol?H
M*" C#+#(" Yes.
C'$rt" )hat (ay he (on1t #e confused and olunteer something else.
Mr" ,'&%e" >ight. & think his agreeing (ith the other guy1s opinion, he apparently is relying on Er. Ieounis1s
opinion later.
C'$rt" >ight. $nd & see the opinions that are sort of coming do(n the pike.
M*" C#+#(" Goes to life e+pectancy, so doesn1t go to this.
C'$rt" & understand.
M*" C#+#(" )hank you, your honor.
3t+e 4'%%'5)(6 pr'-eed)(6 5#* +e#rd )( 'pe( -'$rt7
C'$rt" 3kay. You may contnue.
M*" C#+#(" )hank you, your honor.
M*" C#+#(" Er. -arley, did you reach a conclusion as to (hether %r. !ackson (as addicted to propofol?
A" Yes.
2" $nd (hat (as your opinion?
A" )here (as insuKcient eidence to indicate that he (as addicted to propofol from in the medical records.
2" Eid you see eidence in the record that %r. !ackson a#used propofol?
A" & did.
2" $nd (hy do you say that?
A" )here (as 44 #ecause he (as gien propofol initally for appropriate medical procedures, #ut at some point
#egan seeking out physicians (ho (ould administer propofol to him in a methodical fashion, and #ecause it
(as causing diKcultes in his life as a result.
2" 3kay. $nd (e1ll come #ack to that. Eid you form an opinion a#out (hether or not %ichael !ackson1s
addicton and drug use afected his life e+pectancy?
A" & did.
2" $nd (hat is your opinion?
A" )hat it negately afected his life e+pectancy.
2" $nd (hat drugs do you #eliee %r. !ackson 44 strike that. Eo you hold that opinion to a reasona#le degree
of medical certainty?
A" & do.
2" $nd (hich drugs do you #eliee, to a reasona#le degree of medical certainty, created serious risks that
afected %r. !ackson1s life e+pectancy?
A" )hree categories of drugs= propofol, the opiate categories of drug or opioid category of drugs, and the
#enBodiaBepine category of drugs.
2" $re you ofering a num#er for %r. !ackson1s life e+pectancy?
A" &1m not.
2" $re you an actuary?
A" 9o.
2" "o is it fair to say that you1re not going to tell the 'ury that %r. !ackson had a 7G percent chance of liing a
certain num#er of years, or anything like that <uantfying his life e+pectancy?
A" 9o. $lthough & understand #asic statstcs, that is a ery complicated thing. & don1t kno( anything a#out
that.
2" $nd that1s outside your e+pertse?
A" )hat1s outside my e+pertse.
2" *ere you eer asked to come up (ith that kind of a num#er?
A" & (as not.
2" "o (hat e+pertse do you hae that1s releant to life e+pectancy?
A" & hae e+pertse in that /; years of e+perience in dealing (ith patents that hae addicton pro#lems and
their outcomes, and follo(ing them oer prolonged periods of tme. & certainly hae lots of e+perience in terms
of the literature of su#stance a#use, and the types of things (hich portend for negate outcomes (hich (ould
afect life e+pectancy. & hae e+pertse in understanding the efects of propofol on the #ody, and the efects of
not only acute #ut also prolonged afects of propofol on the #ody and ho( that might afect life e+pectancy. &
hae e+pertse in understanding (hat1s called a synergy or the interacton #et(een all of those drugs and ho(
that can afect life e+pectancy. $nd then #enBodiaBepines as (ell. $nd it comes from /; years of e+perience,
reading and (ritng in the literature, training other clinicians a#out this, and really follo(ing patents for
decades.
2" $s a clinician (ho treats patents, do you hear the term HprognosisH?
A" & do.
2" $nd (hat is a prognosis? Eo you use the term?
A" $ prognosis is something that physicians are al(ays called upon, (hether you go in and hae a 44 (hether
you hae a chest cold, or (hether you hae cancer. &t means the outcome of (hat1s going to happen ne+t. &t1s
predictng in the future (hat1s going to happen ne+t.
2" "o een though you1re not ofering a speci,c num#er, do you hae an opinion, to a reasona#le degree of
medical certainty, a#out (hat %r. !ackson1s prognosis (as in light of his drug use?
A" & do.
2" $nd at the tme of his passing, (hat (as %r. !ackson1s prognosis?
A" %r. !ackson1s prognosis (as grae in regards to his 44 the conse<uences to his life e+pectancy resultng from
his poly4su#stance dependence.
2" $nd (hat does Hgrae prognosisH mean?
A" Grae prognosis is a term (e use in medicine (hich means you talk a#out e+cellent, good, fair, poor and
grae. $nd those 44 it1s a scale that one uses to determine and to really impart to your patents (hat1s going to
happen in the future. $nd in %r. !ackson1s case, all of the data points to the fact that his prognosis (as grae.
2" Eid you put together some slides to use in your testmony here today?
A" & did.
2" 3kay. $nd do you hae a slide a#out 44 sort of summariBing your points a#out (hy %r. !ackson1s prognosis
(as grae?
A" & do. )hat1s the ,rst slide (e hae here.
M*" C#+#(" $nd & #eliee it (ill #e 44 it1s slide . in the set. & #eliee it1s e+hi#it ./,G6/. Put it up for counsel
#efore the (itness ,rst, please. $ny o#'ecton?
Mr" ,'&%e" 9o o#'ecton.
Mr" #()*+" $nd 'ust 44 &1m sorry. Could you tell us the e+hi#it num#er again?
M*" C#+#(" ./,G6/.
Mr" #()*+" )hank you.
M*" C#+#(" $nd can you 'ust e+plain (hat you1re saying in this slide?
A" Yes. )here are four categories that & felt contri#uted to his grae prognosis. )he ,rst is the inappropriate
use of propofol. )hat means the seCng and the set, and the reason that the propofol (as administered. )he
second one (as conse<uences of his opioid addicton, and ho( that (ould afect his prognosis. )he third item
is (hat1s called the synergy or interacton #et(een the drugs. $nd synergy 'ust means that the efect is not 'ust
addite, #ut there1s interacton #et(een the drugs in terms of outcome. $nd that synergy (orsens the
prognosis. $nd ,nally, e+tensie o#stacles that, tragically, %r. !ackson (ould hae to hae oercome een to
get into a state of recoery or remission of his illness, and those o#stacles, unfortunately, (ere large and
dauntng.
2" "o drug synergy, you said it1s not 'ust addite. People sometmes say H. plus . e<uals / in terms of
synergyH?
A" )hat1s one (ay of puCng it, yes.
2" "o the efect of c drug is 'ust the afect of drug . and drug 0, it1s something more than that?
A" >ight. $nd that1s (hy, (hen you go to the doctor, they ask you (hat drugs you1re on. Because drugs hae
interactons. &f drug a does this, drug # causes this, you put them together sometmes and get a third thing,
(hich can #e trou#lesome. $nd that1s actually a #ig pro#lem in medicine, especially today, #ecause people are
on so many drugs, and for good reason, if they1re on lots of these drugs, #ut there1s a negate efect (hen you
put them together.
2" Iet1s talk a li5le #it 44
M*" C#+#(" Pam, you can put that do(n.
M*" C#+#(" Iet1s talk a#out propofol. *hat is propofol?
A" Propofol is an anesthetc agent. &t (as initally released as (hat1s called an inducton agent to put you to
sleep #ut not to hold you to sleep. &nitally, that (as used to 'ust put you to sleep so they (ouldn1t hae to
hae a gas mask oer their face and hae it #e scary. $nd a@er it (as initally #rought on the market, it (as
then used for short4term procedures, and pre5y soon it (as used more o@en for longer term anesthetc
procedures, or for procedures (here you (ouldn1t go completely unconscious. *hat is called a t(ilight sleep.
&f you hae a partcularly painful oral surgery, you1re not completely asleep, you can gie a lighter dose, and
people (ould #e in a t(ilight sleep state. "o (hen it (as initally introduced, it (as 'ust an inducton agent. But
it (as found to #e so efecte and so (ell tolerated that its use kept on increasing, and anesthesiologists felt
that it (as a (onderful drug for anesthesia. $nd so it1s no( the most commonly popular 44 most commonly
used anesthetc agent (orld(ide.
2" Eoes that mean that propofol is safe?
A" *hen used in the proper seCng and set (ith the 44 #y the proper indiiduals, propofol is a safe drug.
2" Eid you reie( the testmony of nurse anesthetst, Eaid ?ournier, in this case?
A" & did.
2" Eid you see his testmony a#out the e<uipment re<uired to safely administer propofol?
A" & did. $nd, actually, (e hae a slide on that one.
M*" C#+#(" >ight. $nd Pam, &1d like you to put up, please, the slide %r. ?ournier used to talk a#out the safe
(ay to use propofol, (hich (as preiously marked as e+hi#it ./,F70.
Mr" ,'&%e" 3#'ect. )his (itness has neer administered propofol #efore.
C'$rt" 3erruled.
M*" C#+#(" $nd is this consistent (ith your understanding of (hat1s re<uired to safely administer propofol?
A" &t is. )here1s an e+tensie set of instruments and things, like the capnograph measures co0 leels. "o it
makes sure you1re actually #reathing properly and that sort of thing. "o all of these things hae #ecome the
standard (hen someone undergoes general propofol anesthesia.
2" &s there a diference that1s signi,cant to you in the e<uipment that1s re<uired to safely administer propofol
ersus the other types of drugs (e1e #een talking a#out in this case in terms of opioids and #enBodiaBepines?
A" Eiferent. 3pioids and #enBodiaBepine drugs, depending on the route of administraton, essentally re<uire
almost nothing in comparison to this kind of encyclopedic reference of things to use.
2" Eo you hae a slide of that as (ell?
A" & do. )hat1s the ne+t slide.
M*" C#+#(" )hat (ould #e 44 any o#'ecton to us puCng it up? &t1s no. / of the set4up.
A" *ell, yeah. )here are seeral things that stand out. )he ,rst is, it1s generally not aaila#le. You can1t go to a
pharmacy (ith a prescripton that says gie me propofol. >etail pharmacies don1t een carry it. &n contrast, if
you (orked in an operatng room, there are #o+es of propofol siCng in the corner #ecause it1s a li<uid, and
you can1t store it in small ials. &f you go in the operatng room, you1ll see #o+es stacked up in the utlity room.
"o access is high in the operatng theater #ut lo( in the general pu#lic. $nd those are the general issues that
are inoled in it. $ccess is a #ig issue.
2" $nd since (e hae the lunch #reak coming up, let1s pause on the predispositons you mentoned, so (e
can coer that so (e make sure & understand it #efore the #reak. You said you had a slide on that. &t1s slide no.
G?
M*" C#+#(" $ny o#'ecton?
Mr" ,'&%e" 9o o#'ecton.
A" & hae it as slide 6. "lide 6.
M*" C#+#(" &t1s this slide.
A" that slide, right.
Mr" ,'&%e" *hat1s the num#er?
M*" C#+#(" )hat (ill #e e+hi#it no. ./,G66.
Mr" ,'&%e" 3kay.
M*" C#+#(" Can you 'ust e+plain to us this steep dose4response process, please?
A" Yes, & sure can. &f you look on the le@, you can see (hat happens (ith #enBodiaBepine drugs, the
aliumO+ana+ types of drugs and (ith the opioid drugs, the o+ycodone, those sorts of drugs. *hat happens
along 44 & guess & don1t hae a pointer, #ut along this #ar you see that the efect changes in response to dose.
$nd as you increase the dose, you go from haing the efect that you (ant, to if you take too much of it, (hich
is (hat (e see in our culture today, people can actually take enough of the oral form of opioids to die,
o+ycodone, or something like that. But ,rst you #ecome unconscious, #ut you see ho( that cure is Dat. Eoes
that make sense?
M*" C#+#(" Your honor, may & approach to gie him a laser pointer?
C'$rt" Yes.
M*" C#+#(" $nd & (ill tell you, it (ill not (ork on that t screen #ut (ill (ork on that #ig display screen.
A" 3K. 2opefully & (on1t #lind myself here. 3n the right4hand side, you1ll see (hat happens in propofol. You
notce ho( the cure here is steep. )hat means (ith small changes in dose, the efect on the patent changes
dramatcally. 9o(, that1s 44 that means that if you1re in an operatng room, and someone is #eing gien
propofol 44 and this happens all the tme. )hey undergo anesthesia, and as they undergo anesthesia,
sometmes literally you1ll stop #reathing. $nd the anesthesiologist 'ust reaches oer and pushes the am#u #ag
a li5le #it, turns do(n the propofol 'ust a notch, and you1re ,ne. "o the fact that one stops #reathing on
propofol is 44 you kno(, it pro#a#ly happens 0; tmes a day in the operatng room (hen you1re undergoing
anesthesia, #ut #ecause you hae an anesthesiologist (ho is looking at all the instruments saying, Hoh, look, he
stopped #reathing.H they1ll turn do(n the propofol, gie a s<ueeBe to the am#u #ag, and you1ll start #reathing
spontaneously ery rapidly. 9o harm, no foul. 9o damage to the #ody. But that change, the small changes in
the dose, hae you moe from unconsciousness 44 (hich is, o#iously, (hat you (ant to #e (hen you1re haing
surgery, right? )he diference #et(een unconsciousness and death is ery narro(, a ery narro( range. $nd if
that (asn1t enough, from tme to tme, people1s responses to propofol (ill change #ased on ho( much sleep
you had the night #efore, your nutriton, ho( much cofee you drank. "o sometmes if you gae a dose + of
propofol to a person, they (ould go completely unconscious, other tmes you (ould gie that same dose to
that same person on a diferent day, and either nothing (ould happen, or they (ould go completely
unconscious and stop #reathing. "o not only is that dose response cure steep, #ut, also, people respond
diferently from tme to tme. )hat means the drug is 44 has to #e managed #y someone (ho has a really clear
idea a#out the efect of the drug, and to monitor that.
M*" C#+#(" $nd is that aria#ility from person to person and tme to tme (hy there1s no num#ers listed
under the dosage there?
A" Yeah. & mean, it1s 44
2" )his is 'ust an illustraton?
A" &t1s 'ust an illustraton. -+actly.
2" 3kay. But the idea is that there1s 44 a small change in the dosage of propofol can hae a #ig efect, more so
than opioids or #enBodiaBepines, is that fair?
A" $#solutely. $nd the reason it1s Da5er here is, as you increase the dose, you hae to hae (ider doses of
change that make you go from #eing a(ake and may#e hae no pain to #efore you go unconscious. )hat sort
of thing.
M*" C#+#(" & think this is pro#a#ly a good place to stop, if that1s 3K (ith your honor.
C'$rt" 3kay. .=/;, #ack to the courtroom. )hank you. 2ae a good lunch.
3t+e 0$r& e8)ted t+e -'$rtr''m #t 1290: p"m"7
C'$rt" !ust remem#er not to hae any discussions 'ust untl the 'ury is completely out of the room.
A" &1m sorry.
C'$rt" )hat1s 3K. %ost people don1t kno( that, #ut the la(yers are <uiet #ecause you need to stay <uiet.
A" 3K.