IN THE COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CIVIL DIVISION

DELL LIEBREICH, as Personal Representative of the Estate of LISA McPHERSON,

Plaintiff,

vs.

CHURCH OF SCIENTOLOGY d/b/a CHURCH OF SCIENTOLOGY,

FLAG SERVICE ORGANIZATION, INC.,

Defendant.

May 15th, 1997

10:04 a.m.

VIDEOTAPED DEPOSITION OF ROBERT D. DAVIS, M.D.

The above-styled cause came on for hearing before me, Julie L. Weston, Registered Professional Reporter and Notary Public, State of Florida at Large, at the time and place above indicated for the purpose of taking testimony.

APPEARANCES:

KENNAN G. DANDAR, ESQ. MORRIS "

Dandar & Dandar

Attorney for Plaintiff

Sandy Weinberg

Attorney for Defendant

LEE FUGATE, ESQUIRE DR. JOHN R. FEEGEL, ESQ.

Co-counsel for Defendant

ANNE F. CARLUCCI, ESQUIRE Cranshaw & Carlucci

Attorney for Dr. Davis

Also present: Ben Shaw

Rick Spector

Videographer

INDEX PAGE

DIRECT EXAMINATION BY MR. WEINBERG 3

CROSS-EXAMINATION BY MR. DANDAR 176

REDIRECT EXAMINATION BY MR. WEINBERG 257

CERTIFICATE OF REPORTER 265

(Court reporter's note: All exhibits referred to herein were retained by Mr. Weinberg)

MR. WEINBERG: This is the deposition of Dr. Robert D. Davis taken pursuant to a subpoena served on Dr. Davis and pursuant to a Notice of Deposition.

It's a deposition being taken in the case of Dell Liebreich versus the Church of Scientology, and present today for the Church of Scientology are John Fegel, Lee Fugate, myself, Sandy Weinberg, and Ben Shaw, and present for Dell Liebreich is Ken Dandar.

The deposition at Mr. Dandar's notice is being videotaped, as well as the court reporter.

If you could swear in the witness, I'd appreciate it.

MS. CARLUCCI: Mr. Weinberg, would you identify that I am in the room?

MR. WEINBERG: Oh, I apologize. And also Dr. Davis has with him Anne Carlucci, who is his counsel, and who has provided her offices for us to take this deposition in --

MS. CARLUCCI: Thank you.

MR. DANDAR: -- her new offices, actually. MS. CARLUCCI: Yes.

DIRECT EXAMINATION

BY MR. WEINBERG:

Q Could you state your name for the record, please.

A My name is Dr. Robert D. Davis.

Q And how are you currently employed?

A I'm employed by District Seven of the state medical examiner's system, which is to say Volusia County.

Q And you are a what?

A I'm an associate medical examiner.

Q Okay. Very briefly, could you describe your background that qualifies you to do what you're doing now, including your education and training?

A Okay. Following graduation from medical school, which was the University of Oregon, I had a rotating internship at Philadelphia General Hospital.

Following this, I had a four-year residency at the University of Vermont in anatomical and clinical pathology.

Following that, I was in the United States Navy as an active reservist stationed in Pensacola.

Following that, I was in -- was in practice doing general pathology in Naples, Florida, for a period of about a year.

Following that, I was in North Miami at North Miami General Hospital doing the same thing for a period of roughly a year.

Following that, I returned to the west coast, having come from there, and I was the pathologist and chief of pathology at a small hospital in Spokane, Washington, and I held that position for some eighteen years.

During that period of time, I was elected chief of staff and I was on the board of trustees.

During my education, I took and passed boards in anatomical pathology, clinical pathology and subspeciality areas of pathology; specifically, blood banking and forensic pathology.

At this time, I do forensic pathology.

Q And you were trained -- you actually did some training in forensic pathology or as a medical examiner in Texas; is that right?

A That's correct.

Q And where was that, exactly?

A That was at the Southwestern Institute of Forensic Sciences under Dr. Petty and that's -- physically, that's adjacent to Parkland Hospital.

Q Right. And you have your certifications. What certifications do you have so far as --

A I just mentioned them.

Q Oh, those are the ones that you just mentioned.

A Yes, sir.

Q Now there came a point when you were hired by the District Six medical examiner, is that right?

A There came a point?

Q In time.

A Yeah.

Q You went there and that was in 1991, approximately. A Yeah, right.

Q And you stayed there until --

A Just about this time last year.

Q So May of 1996.

A Yeah.

Q And starting in or about May of 1996, you were employed over here?

A That's right.

Q Okay. You were doing the same thing in District Six as you are here, associate medical examiner?

A Hmm-hmm. Yes, sir.

Q And approximately how many autopsies have you performed over the years? Any idea?

A Oh, boy. That's going to have to be a range, and I think it's -- I want to stay conservative. I would say at least twenty-five hundred.

Q Okay. Now did you perform the autopsy of Lisa McPherson? A Yes.

Q And did you do that on December 6th, 1995?

A To the best of my recollection.

Q Okay, well, I'll get a report here.

Let me show you what I'll have the reporter mark as our Exhibit One.

Now this has been provided to us by the medical examiner in District Six. It's entitled Report of Autopsy. It contains a number of pages, including an amended page four, which has been added recently, but let me show you this, ask you if you can identify it and if it indicates when the autopsy was done by you.

THE WITNESS: Okay. Could you repeat the previous question that Mr. Weinberg asked about the date?

BY MR. WEINBERG:

Q What I had asked is did you perform it on December 6th, 1995.

A Yes, on the 6th.

Q Okay. Now did you -- do you recognize any of the document I have shown you, which is Exhibit One?

A This is the format for this particular office relative to -- relative to the way that we do autopsies, and in glancing at this, this is -- in just looking at this, this is, to the best of my recollection, similar to the work product, at least initially, on Lisa McPherson.

Q Okay. Now if you look at this document, I'm going to turn to the second page and there is what is entitled a Protocol --

A Yes.

Q -- which begins on the second page and runs for four pages? A Hmm-hmm.

Q Now do you recognize the Protocol?

A Yes.

Q Did you prepare the Protocol? Did you dictate the Protocol?

A Well, I didn't -- this is not my work product. I didn't sign this case and I don't know that I can give you an absolute answer relative to everything that's in that Protocol. The person that signed it would be the one to answer the question as to the material present within that report.

Q All right, now, when you were in the office --

A Yeah.

Q -- you performed the autopsy yourself; is that right? A Yes.

Q After performing the autopsy, you dictated a draft of a Protocol; is that right?

A A draft, yes.

Q Is that right?

A A draft.

Q The draft of the Protocol is in a form similar to what is contained in Exhibit One?

A Similar.

Q Right. Is it identical?

A I couldn't say.

Q Do you know where the draft is?

A No, I don't -- I'm not certain that I do.

Q Okay. I'm not trying to be difficult. Let me see if I understand this.

When an autopsy is performed, after it's done --

A Yes.

Q -- the person that has done the autopsy typically dictates notes from the autopsy, which would be referred to as a Protocol; is that right?

A Well, different forensic pathologists may do things in different ways and I wouldn't want to leave the impression that the way I do things is the way that everyone does it. I ordinarily take notes and then dictate from my notes.

Q Is that what you did --

A And, yes, I do -- I do it after I get through with the case. Q Is that what you did in this case?

A Yes.

Q Okay. In addition to the Protocol, which is the body of the report that describes the observations and findings from the autopsy, is there typically a cover page that sets forth various conclusions that accompanies the report?

A You mean similar to this?

Q Yes.

A Yes.

Q Okay. In this case, did you dictate a draft of a cover page for the autopsy?

A I usually do. I don't have an independent recollection with regard to this particular case, since the main thing that needs to be done is to get the Protocol dictated, so, you know, I can't say I have an independent recollection of having categorically done that, but I ordinarily do.

Q Is there in any reason why you would not have done a draft of a cover page with regard to this autopsy?

A No.

Q Okay. let me show you what we'll have the reporter mark as Exhibit Two.

MS. CARLUCCI: Are we going off for a minute?

(WHEREUPON the proceedings were in recess from 10:17 a.m. until 10:18 a.m.)

MS. CARLUCCI: Thank you.

MR. WEINBERG: Okay, are you ready?

BY MR. WEINBERG: I have now handed you what we've marked as Exhibit Two and let me ask you if you recognize Exhibit Two as a draft that you prepared with regard to the cover page for the Report of Autopsy?

A That's -- that is quite consistent, yes -Q Okay. Now --

A -- as a draft.

Q Right.

Now in this -- on this document, there is some handwriting. Do you recognize the handwriting?

A Yes.

Q Is that your handwriting?

A Yes.

Q And do you know when you put that writing on there? Any idea?

A As for an exact time and date, no, but, ordinarily, it would probably be at the time that the case was fresh in my mind, i.e., to say around the time it was dictated and/or the Protocol comes back to me after it's been typed up.

Q Okay. And does that say, Rule out malnutrition, "slash" dehydration "dash" vitreous?

A Yes.

Q Now have you had an opportunity, before your deposition, to review Exhibit One, which is the Report of Autopsy?

A Yes.

Q Okay. And, specifically, did you read the Protocol?

A Yes.

Q And does it appear any different? I'm talking about the Protocol -not the first page, but the Protocol, itself -- does the Protocol appear any different than what you dictated -- what you recall dictating back in 1995, i.e., have there been any changes -- any meaningful changes made to them?

A I'm not sure that I can give an unequivocal answer to that. Can I look at this?

Q Sure.

Now there is one page --

A Yes, there is a difference.

Q -- that has been amended.

A I didn't amend it.

Q No, I understand that. There are two pages here. There is one page that is the original page four right there --

A Yeah.

Q -- and then there is an amended page as noted on the bottom. A I had nothing to do with this.

Q With the writing on the bottom.

A I had nothing to do with --

Q With the amendment.

A I had nothing to do with this writing and I don't independently recall the change of the two pages.

Q That's understandable, because there's already been testimony, in this case, from Mr. Bedore that this change of page four was not done until 1997. There was an additional test run.

A Oh, okay.

Q So I mean, what I'm really asking you is, if you look at the original Protocol as indicated by this document, Number One --

A Uh-huh.

Q -- does that appear to be substantial similar to what you dictated back in 1995?

MS. CARLUCCI: If you know.

THE WITNESS: It appears to be, yeah.

BY MR. WEINBERG:

Q Okay. Now who -- do you recall, in this case, dictating the Protocol, after the autopsy was completed, from your notes?

A In -- I think it's safe to say that in my career I have essentially always dictated after the Protocol. I mean -- I'm sorry -- dictated after I completed the autopsy.

Q Okay. And do you make hand-written notes or are they notes in a tape recorder?

A No, hand-written.

Q And where are those notes, do you know? A No.

Q Okay. Are these detailed notes?

A In my particular case, my format is quite detailed and has got essentially four pages.

Q Is it like a form that you fill in?

A Yeah, and it's a form that I picked up while I was a resident.

Q Okay. If you take Exhibit One as your guide here, can you tell us who -- how did you get to be assigned to do this autopsy, do you know?

A The way things worked in our office was that different people had -we essentially had a rotation and I was on a rotation at the time that this case came along and, therefore, it was my case.

Q There was no special assignment to you as opposed to someone else?

A Oh, no.

Q Did you receive any special assignment to you as opposed to someone else?

A Oh, no.

Q Did you receive any special instructions with regard to this particular autopsy?

A No.

Q Did you have any discussion with Dr. Wood before you performed the autopsy with regard to this particular autopsy?

A Not that I recall.

Q Did you have any discussions with the police before you performed the autopsy of Lisa McPherson?

A Not that I can recall.

Q Can you tell from the Protocol what time the autopsy was done; what time of day?

A We used a twenty-four-hundred-hour o'clock, so at 11 a.m. Q And how long did this autopsy take?

A Oh, I don't know.

Q Do you have a recollection?

A No.

Q Do you remember this autopsy?

A In -- I think, in doing autopsies, certain things may cross your mind about a particular autopsy, but if you ask the question do I remember the entire autopsy and the particulars of each individual aspect, I don't know that I can answer that.

Q That wasn't my question, because I can't remember what I did yesterday, you know, thoroughly, but you have some recollection of performing this particular autopsy.

A Yes.

Q The medical records indicate that Ms. McPherson died the evening before at around 9:30, 9:30 on December the 5th.

MR. DANDAR: Objection; that's not supported by any facts, in this case; lack of predicate.

BY MR. WEINBERG:

Q Is there any particular reason why this autopsy was not performed until thirteen or fourteen hours after the death?

A Well, ordinarily, in that particular office, the policy set by the chief was that if a person expired, then -- say during the evening or after hours -- okay -- after hours when there weren't the support personnel that were there during the day, it would be the next day.

Q You don't have any specific recollection what the reason for the delay was, but the experience was, is that if the death happened after five o'clock, then it might get done the next day; is that typically what would happen?

A Yes, that's right.

Q Who was present at the autopsy? You indicate on your Protocol, I believe, don't you?

A Yes. ID tech, John Grubb, of the sheriff's office.

Q And yourself, obviously?

A Myself and there would have been an autopsy assistant. Q And so John Grubb was not the autopsy assistant?

A Oh, no.

Q And what is an autopsy assistant?

A The autopsy assistant will help with regard to a variety of difficult tasks, it it's necessary, to -- I mean, to keep things orderly and clean, et cetera; to do things that I may ask him to do, et cetera.

Q What was the purpose of John Grubb being there? A I don't know. You'd have to ask John Grubb.

Q I'm asking for your recollection.

A I don't honestly recall.

Q What role do ID technicians from the sheriff's office play during autopsies, if any?

A Ordinarily, they are people that will take, oh, things like trace evidence, things like hair and/or whatever may be present and if there's any -- if there's any evidence, the -- that may be turned over by the pathologist, he will turn this over to a representative from the sheriff's office, ordinarily, in cases in which there is -- in which there can be a variety of circumstances.

If the cause of death is not -- is immediately obvious -- okay -- or if there's any question about anything, then that person can receive information and/or evidence which could be recovered, say, from a particular body or whatever.

Q Now do you have -- was there any evidence whatsoever that was retrieved or taken by Mr. Grubb to be present for the autopsy?

A No.

Q Okay. Now do you remember who the autopsy assistant was?

A We had -- no, I don't remember which of the two. We had two guys.

Q Do you remember what their names are?

A Claude Stodgel (phonetic), I think was one, and the other guy's name escapes me. I don't recall his name.

Q Did you perform the entire autopsy?

A Certain things are -- at least in that office -- were delegated as a matter of routine, and to my independent recollection -- I don't specifically recall, in this case -- but such things as obtaining vitreous, such things as obtaining urine or blood in some cases, which is a part of the autopsy, can be delegated to these people --

Q These --

A -- but it would be under my authority.

Q These are technician-type people?

A That's right, but they're there under my authority.

Q You are the -- you were the medical examiner that performed the entire autopsy; is that right?

A Yes.

Q Okay. Did you do all the sections? Do you know what I mean? A All the sections?

Q All the cutting in the autopsy.

A Yes.

Q You did all that?

A Yes.

Q You made all the incisions?

A The so-called Y-shaped incision, I don't personally recall. I mean, that's when you open the body, but I mean that's just to open the body.

Q Did Dr. Wood participate in the autopsy?

A I don't recall her presence, but I just don't recall one way or the other.

Q If another medical examiner had assisted in performing the autopsy, that would be something that you would typically have noted in your Protocol?

A Yes.

Q Okay. And your Protocol --

A And I -- and -- well, I'm sorry, go ahead.

Q And your Protocol, in this case, does not note that any other medical examiner or associate medical examiner participated in the autopsy, other than yourself, does it?

A No, but they can drop into the room from time to time. They can -- you know, there's nothing that precludes that, but, performance, no, I performed the autopsy.

Q Was this autopsy treated any different by they District Six office than others that you had participated in?

A Than any others?

Q Do you know what I mean by that? In other words, was this given special attention? special treatment? special interest?

A Any time -- I'm speaking now for myself -- any time I have a case where I am -- well, let's just take an example.

If there's a straightforward gunshot wound to the head, it's observed, this, that, the other thing. I go ahead and do the routine autopsy and so on.

In a case in which -- in which I wasn't -- I didn't feel comfortable necessarily with the information I had -- okay? -- then -- treat it differently? No. I wouldn't treat it differently, but my awareness I think would be -- would he heightened; that's all I can say.

Q My question, on this case, was this -- was this a routine autopsy?

A Yes.

Q Now you said that John Grubb from the sheriff's office was at the autopsy. Was anybody from the Clearwater Police Department at the autopsy?

A Okay. First of all, you have to realize I didn't -- I mean, I didn't sign this, and per what's said here, but the person that did sign it, there's no evidence that somebody else was.

Q Do you have any recollection of speaking with a Clearwater Police Department representative prior to doing the autopsy?

A Not that I recall.

Q Okay. Do you recall conversations with the Clearwater Police Department during the period after the autopsy?

A The police -- well, specifically recall conversations, no; however -well, no.

Q No?

Were you told, either before or after the autopsy, that Lisa McPherson was a scientologist? Did that come up?

A Yes, it did.

Q Did it come up before the autopsy?

A Yes.

Q And how did you learn that she was a scientologist, do you recall?

A We have investigators that interface on our behalf with appropriate people, be they hospital authorities, police, or whatever.

Q So one of your investigators told you?

A Well, what they do, they make notes, see, and ordinarily, we go over the notes that they make prior to doing the autopsy.

Q So the notes indicated that she -- that Lisa McPherson was a Scientologist?

A per my recollection, yes.

Q Okay. Did you discuss either -- did you discuss with Dr. Wood before the autopsy that Ms. McPherson was a scientologist?

A Not to the best of my recollection. I mean, I didn't have any reason to prior to anything. I mean, I didn't have a knowledge base, as a pathologist, if you see what I mean.

Q Did you have discussions with Dr. Wood after the autopsy regarding scientologists or scientology?

A No, I recall -- no, not that I can recall.

Q Do you recall any remarks by Dr. Wood regarding scientology or scientologists?

A Not as a specific thing. She -- I think everyone has ideas about things, but I don't recall any specific comments, no.

Q Do you recall that Dr. Wood has made disparaging remarks regarding scientology?

A She may have. I don't -- she -- I guess -- I wasn't sought -- I'm not -- I wasn't the kind of person to which she would seek things out and so I don't honestly recall.

Q Did it seem to make a difference to Dr. Wood that a scientologist or scientologists had something to do with this particular autopsy?

A Not to the best of my recollection.

Q Now when you do a Protocol, you try to be as thorough and accurate as possible; is that right?

A Attempt to.

Q In fact, I mean, that's what you described as the techniques which you sort of designated on your own probably from the training down in Texas, is that your notes are very detailed as to what you see and observe in an autopsy; is that right?

A Not totally. The notes are essentially pretty much an exact copy of the format from Dallas, so I mean -- I guess where I'm trying to modify your question, so that I can be exact, is that I didn't extensively change the format; the format is Dallas's.

Q The bottom line is, it's thorough and it attempts to identify everything that you consider to be important from your observations of the autopsy?

A That's what I try to do.

Q And would you be particularly careful and thorough when there is law enforcement interest or presence during the autopsy?

A I think I would go through the same format in the same way that's present here and there may be a greater or a lesser degree of information that would be present on all of my Protocols.

Q Okay. If you go to your Protocol -- and let's assume for a moment that what you have there is substantially similar to what you dictated.

By the way, is it your experience that there would be any material revision to Protocols that are are dictated by medical examiners?

A Mine, there certainly is.

Q Excuse me?

A Mine, there certainly is, yes. Q And the reason is what?

A Well, when -- okay. When I have the information that I feel I need -okay? -- I will go ahead and plug that in.

For instance, when I get through dictating the four pages, there's certain things that I don't have, okay? I don't have the things that, for instance, you mentioned on page four largely, okay?

Q The lab data.

A Yeah, and the microscopics, the toxicology and that stuff, and that can relate in -- and then at the same time, at that point -- okay? -- I try and handle a particular case or a piece of paper as infrequently as I can so it doesn't clutter things up.

In other words, if I have a quarter of a case, I'm not going to sit down and go through a quarter of a case, because then I've got to go through it three or four more times, if you follow me.

Q No, do I follow you. Let me change the question a little bit.

When you dictate a Protocol with regard to your external examination, your observation of what the body looked like when you get there, typically what you dictated is what would end up in the autopsy report. Someone isn't going to change that; right? Is that right, for the most part?

A Not necessarily.

Q Okay.

A That's --

Q Someone would go back who wasn't even present and change your depiction of your observations of the body?

MR. DANDAR: Objection; lack of predicate.

MR. WEINBERG: Go ahead.

THE WITNESS: It depends on who -- you know, if someone signs something, I have no way to know that may or may not have been done. I can't say that person X wouldn't change or alter something. I'm not saying it did or didn't happen. I don't know.

BY MR. WEINBERG:

Q All right, well, look at the External Examination. You had a chance to review that today or whenever you prepared for it.

When you began the autopsy, you found a white female who you described as normally developed; is that right?

A Yes.

Q And you described her as, quote, average nutritional status; is that right? Is that what you said?

A That's what this says. From my own independent recollection, I don't recall having used the -- having said that.

I mean, I -- you know -- but, I don't -- I think that leads back to the question of "can things be changed" and yes, they can be changed.

Q Well, what does -- when you use the words "average nutritional status", what does that mean? When a medical examiner uses those words, what does that mean?

A Okay. What it means to me is that a particular person is not at extremes; in other words, massively obese or emaciated.

Q That would be a person that would be well-nourished; right? A person of average nutritional status would be a person that was well-nourished; right?

A Yeah, I think so.

Q Okay. Now in describing the external examination here, if you look at that first paragraph of the Protocol, you do not say in there that her eyes are sunken, do you?

MS CARLUCCI: I'm going to put an objection of the record. This is Anne Carlucci for Dr. Davis.

I just need to make sure that the record is clear that we have not been provided a copy of Dr. Davis' original Protocol. He's not had an opportunity to review it prior to this deposition. he's not seen it since he left the medical examiner's office in District Six, and if he is asked questions regarding the particular Protocol of the final autopsy report which was authored and signed by someone else, I want it clear that the record should reflect that he has not had an opportunity to review his original document and compare it with the particular final document and any opinions that he offers with regard to this final document have to have that proviso on them.

He has no idea what his original Protocol said, other than from his independent recollection.

BY MR. WEINBERG:

Q Well, let's go to page four.

MR. DANDAR: And he doesn't have any original notes or anything? MS. CARLUCCI: That is correct. Everything was sent back.

BY MR. WEINBERG:

Q Let's go to page four; the original page four -- okay -- as marked at the bottom. See that?

A Original page four.

Q Right. At the top of that is the end of the four-page Protocol, okay?

Go back four pages and you'll see that the Protocol starts on page one and ends at the top of page four --

A Hmm-hmm.

Q -- all right?

And at the bottom, right after it says, "The brain is retained". there are three initials, RDD "colon" ME. Now who is RDD?

A That's me.

Q And who is ME?

A Marian Espisito.

Q Okay. Now does that indicate that you dictated those four pages before that? Is that what that indicates?

MS. CARLUCCI: I'm going to renew my objection to that question. We've already put on the record that he did not author this piece of paper and whether or not there have been any alterations from the original Protocol, we have no way of knowing.

MR. WEINBERG: Anne, I mean, I don't want to get into an argument, but I don't know how you can say he didn't author this -- the original Protocol.

MS. CARLUCCI: We don't know. We have no way of authenticating that that's the original Protocol.

MR. WEINBERG: That's what I'm trying to do here is show him his initials.

BY MR. WEINBERG:

Q Do you know why your initials would appear at the end of those four pages?

A Anybody's initials can appear. I think the key thing is who signs the case.

Q Well --

A I mean, because -- I mean --

Q Well, let's do it another way. You're not saying you didn't dictate a Protocol, are you?

A No.

Q You're not saying that you didn't dictate a section called External Examination, are you?

A No.

Q You're not saying you didn't dictate a section called Evidence of Treatment; is that right?

A No.

Q And you're not saying you didn't dictate a section called Evidence of Injury; is that right?

A That's right.

Q Or a section called Internal Examination; right?

A That's right.

Q Or Central Nervous System or Urinary System or Genital System or Hepatobilary System, Gastrointestinal Tract, Lymphoproliferative System, Muscolskeletal System or Miscellaneous. You're not saying you didn't dictate sections entitled that; is that right?

A That's right.

Q And you do recall also dictating a section called Brain After Fixation a period of time after you originally dictated a draft of the Protocol; is that right?

A Hmm-hmm.

MR. DANDAR: That's a yes; right? MR. WEINBERG: That's a yes.

BY MR. WEINBERG:

Q And you also remember dictating a section called Microscopic Description with regard to the lung. You remember doing that, too, don't you?

A Yeah, I believe so.

Q Okay. So it is -- so what you're not -- you're not saying that you didn't dictate a detailed Protocol with regard to what you did as the medical examiner on the autopsy of Lisa McPherson; is that right?

A That's right.

Q Okay. And you have looked at this four-page Protocol, at least the pages that end with the sections that have your initials in it, and from looking at them, they appear similar to what you dictated; is that right?

MR. DANDAR: Object to the form of the question. His initial only comes a the very end of page four.

MR. WEINBERG: No, the end of page four and then under Microscopic Description on page four.

MR. DANDAR: Well, correct, both on page four.

MR. WEINBERG: That's what I said.

THE WITNESS: Again, rephrase the -- repeat the question. BY MR. WEINBERG:

Q Yeah. The Protocol that you -- the draft of the Protocol that you dictated is similar in form and content to this document that I've put in front of you; is that right?

A It is similar in form, and as for the word "content", I didn't sign this and I don't know that there may or may not have been alterations.

Q You don't know whether there are any alterations.

A No.

Q Is there anything, from reading through the Protocol, that you can recall has -- was different when you first dictated it? Different in substance. I'm not talking about commas or quotation marks.

A I can't. I really can't recall.

Q Okay. Now did you indicate in your Protocol that your observations were that Ms. McPherson was severely dehydrated? Did you indicate that in the Protocol that you drafted?

A I -- to my recollection, I had a question of that and when that -- at least the way I do things if I question it -- there are certain studies that can be done.

Q Okay. Now did you, in your Protocol that you dictated, indicate -what are the indications of dehydration; severe dehydration that you would find in doing an examination of a body?

A I think that's a function of a particular pathologist. I know a number of people that use the word "turgor", which is basically looking at the skin. I don't use that, because it's a clinical term.

The -- I prefer, if I can, to refer to Hippocratic facies, and the reason is because there are multiple aspects to that.

Q Yeah. Well, what's Hippocratic facies while we're at it?

A Okay. First of all, "facies" refers to a particular facial appearance and it's a gaunt look, if you will. The skin is tight -- okay? -- to palpation or to feeling. You don't feel an abundance of soft tissue.

The orbits, which is to say the rims around the eyes are prominent,

okay? The globes or eyeballs tend to be sunken. The cheek bones are prominent. Right here -- (indicating) -- okay?

The cheeks tend to be sunken and the jaw -- mandible or jaw bones tend to be prominent.

And, as i say, to me, the word "gaunt" is a -- perhaps a word that lay people can relate to.

Q What else do you expect to find -- would you expect -- what I'm asking you is, what would you expect to find in an autopsy from observation of a person who would be characterized as severely dehydrated?

A That -- okay -- for one thing. You said "what else."

Certainly if there's crusting; for instance, if things -- if there's drying that is -- in other words, if secretions from organs or say -- for instance, say, from the nose or the mouth, if there's no obvious liquid and it appears dry, that would cross my mind.

Q What else?

A Those are the things that would alert me predominantly -- okay? -- to go ahead and raise that question, and in terms of - and I think, with those things, that would be enough, for me at least, to raise the question and to follow. If there were appropriate things that I could do from a supportive standpoint with regard to the autopsy, i.e., other tests, I would attempt to have those done.

Q Now in a person that was severely dehydrated, would you expect that, upon examination, the tissues and organs inside the body would be sticky, not smooth and glistening?

A That's possible, but, again, that's - to me, that's subjective.

Q Did you note any stick, not smooth and glistening organs of Lisa McPherson?

A To my independent recollection on my draft, I don't really recall.

Q If you found organs that were not smooth and glistening, in other words, that were sticky -- do you understand what I mean by a sticky appearance?

A Yes.

Q -- you would have noted that in your Protocol?

A Having noted these things externally would certainly alert me to the condition of possible dehydration and malnutrition and would have been probably, to me, of sufficient importance that I would have emphasized that over stickiness of capsules or of things like that.

Hippocratic facies, for instance, is far more obvious, in my opinion, than what you're talking about.

Q Well, but what -- there are degrees of dehydration, I take it; is that right, Dr. Davis?

A There's degrees, yes.

Q Right. Dr. Wood, earlier this year, went on national tabloid television and said, to a national TV audience, with regard to Lisa McPherson, that, quote, This is the most severe case of dehydration I have ever seen.

Now was this the most severe case of dehydration that you, Dr. Davis, had ever seen?

MR. DANDAR: Objection. There's another improper predicate. We don't know at what point in time you're asking this witness at what time he saw dehydration compared --

MR. WEINBERG: Are you objecting to the form of the question?

MR. DANDAR: Just a minute.

MR. WEINBERG: Well, fine, object to it and let's go on.

MR. DANDAR: -- as opposed to when Dr. Wood made that comment, at what point in time.

MR. WEINBERG: That's not a proper objection. If you want to make objections to form, fine, and then we'll go on and ask them.

MR. DANDAR: I made my objection.

MR. WEINBERG: Fine. You don't have to make a speech. BY MR. WEINBERG:

Q Do you understand my question?

A Yes, My style is not to use superlatives. I find -- to me -- so, I'm trying to answer your question, okay?

Q All right. If you had believed that this was the most severe case of dehydration you had ever seen, that would have been prominent in your autopsy Protocol, would it not?

A The -- the things that I emphasize are the Hippocratic facies, which are associated with significant dehydration and malnutrition; those are the things that I look at, and, to me, they are associated with -- I prefer to use the word "significant", perhaps. I don't want to get into -- go beyond that.

Q Well, is there a reason why you would not use the word "dehydration" in your protocol?

A I think you can -- I think you can -- again, that can be subjective, and I think you need a combination of different things to come to a particular conclusion in terms of say a front page, if you will.

Q Well, I don't know -- I don't quite understand that.

A person that is average of -- of average nutritional status would not be suffering from malnutrition, would they?

A Here's --

Q I mean, could you just answer that question and then explain it?

MS. CARLUCCI: If you can.

THE WITNESS: Well, I'm not sure that I necessarily can give a black and white answer to that.

BY MR. WEINBERG:

Q As to whether a person who is of average nutritional status was suffering from malnutrition?

A I would, again, refer to what I do recall dictating and putting in my draft, Hippocratic facies; that, to me, was a prominent thing because it has a variety of components to it and it, to me, is a flag to perhaps look at other things.

Q Did Dr. Wood discuss with you before going on national tabloid television?

A No.

Q Did she seek your support with regard to whatever opinions she was going to express on national television?

A No.

Q Did you watch the show?

A Yes, I did.

Q Did you discuss, at any time while you were still in the ME's office, with Dr. Wood your opinions with regard to the manner of death and/or cause of death of Lisa McPherson.

A No. At the time I left, the question was in the air, as far as I was concerned.

Q What question was in the air?

A As to what you just asked me.

Q What is the -- what is the descriptive term "manner of death"?

A Okay, "Manner of death" is what can be expressed or what is expressed on the death certificate and can consist of a variety of different situations.

Q Which are?

A Listed in -- and no particular order -- natural; suicide; homicide; accident; undetermined.

Q Okay.

A I mean, those are -- yeah, that's what I recall.

Q Okay. You did not reach a conclusion as to the manner of death in this case?

A I did not.

Q Well, did you discuss with Dr. Wood what the conclusion ought to be?

A No.

Q Did Dr. Wood -- did you overhear any discussions where Dr. Wood set forth her opinions as to the manner of death?

A No, I didn't.

Q Okay. Were you leaning toward one of the five?

A No. There were -- I take signing that death certificate very seriously and there were aspects to the case that I did not have and so I didn't feel that I could be responsible, and I take that very seriously and --

Q Did you tell -- I'm sorry, go ahead. A Well, I mean, that's it.

Q Did you tell that to anybody?

A Tell that to anybody?

Q Did you tell Dr. Wood that you weren't prepared to sign out the death certificate?

A Yes.

Q And what did she say?

A Oh, I don't recall. I don't think there was a particular -- you know, I don't honestly recall what she may or may not have said. She did not discuss the case with me and - but I didn't have circumstances, in particular, okay? I didn't have circumstances surrounding the case that would help me to the extent I needed it or I felt I needed it to be able to give a manner of death.

Q Well, what circumstances did you need?

A At the time I left the office, the police were involved and I did not have a police report.

At the time I left the office, as I recall -- and I don't recall the exact specifics, but there had been some material in the press and the -the press is not my bible.

I -- and the potential for innuendo, the potential for implications, the potential for a variety of things that could affect the manner just were not available at the time I left that office.

Q Well, was -- were you urged to make a conclusion as to a particular manner of death by the police?

A No.

Q Were you urged to make a conclusion as to a particular manner of death by Dr. Wood?

A No.

Q Was any pressure put on you to reach a particular conclusion in this case?

A I don't mean to be -- people don't tend to put pressure on me.

Q So the answer is no?

A No one put pressure on me -- okay -- to do whatever.

Q What I'm really asking you is, is was there -- did some friction or tension arise between you and either the police or Dr. Wood as to what should be done with the conclusions on this autopsy?

A No. The case was not signed out when I left.

Q Because you wouldn't sign it out.

A I didn't have the circumstances. It wouldn't be fair to the case and I'm not going to sign a death certificate when I don't know what's going on.

Q How long can one hold a death certificate or an autopsy before it's signed out?

A A death certificate can always be pending -- okay? -- and what I would usually do, if I had any question about anything -- and this would include such things, say, as getting back microscopics or what have you -- I would "pend" the case, and while I don't -- while I don't specifically recall, I probably "pended" this case, so --

Q What's that mean, "pended"?

A "Pend" means pending something. It means pending investigation, okay? It could mean pending receiving microscopic slides. It could be pending other tests -- okay? -- serologic tests, which is a bit way for saying looking for certain kinds of antibodies; a variety of things. Pending a bunch of things.

Q Well, you figured out, during your autopsy, what killed Lisa McPherson, didn't you?

A No.

Q Didn't you conclude that she died as a result of a pulmonary embolism?

A Oh, I think -- I think that I had impressions, but I mean that is the reason, okay?

The -- okay. How can I phrase this?

The wording of this front sheet is mandated by the chief medical examiner, okay?

Q Yeah.

A Now I have nothing to say about -- like say, for instance, this? Q This Final Anatomic Diagnoses?

A That's correct, see.

Now by comparison, where I was trained and the way I would do it, would be to use the word "provisional", okay?

Q Hmm-hmm.

A When I first came there, I did that, and I was told, We don't do that; don't do that in that office, but that's -- I didn't like that.

Q Now looking at Exhibit Two, is this a document which you prepared?

A It's got my -- this is my handwriting here. When you say "prepared" --

Q It's got your initials at the bottom of that Final Anatomical Diagnoses --

A Yeah.

Q -- right? A Yeah.

Q Now --

A Now, but your question. I don't recall doing something like this in any case.

Q You mean writing a circle on it?

A Yeah.

Q Well, someone may have done that after, but I'm just asking about the typing on this document, which is, other than the background information, what's typed on the document is "Final Anatomical Diagnoses", thromboembolus left main pulmonary artery, thrombosis of the left popliteal vein, multiple old and recent hematomas, extremities, and abrasion of the nose.

A Hmm-hmm.

Q Now -- did I read that correctly?

A Yes.

Q Now, what did you typically, when you would prepare the Report of Autopsy, once you started abiding by whatever Dr. Wood wanted in this office, what would end up under the Final Anatomical Diagnoses? I mean, what goes there?

A Okay. What goes there is the combination of the findings, i.e., the autopsy and the ancillary parts. We alluded previously to a variety of different kinds of tests.

Okay, those are the findings, and then there are, if appropriate, the circumstances, which is to say the history surrounding the particular situation and then correlation of that.

In addition, at least in my case, at that point, I would do the proofreading that you were questioning previously, okay?

Q All right. Not if you go to the final report that Dr. Wood signed off on, you'll see that those same Final Anatomical Diagnoses that you --

A Excuse me.

Q -- I'm sorry -- dictated are there and then in addition she adds "severe dehydration."

A Hmm-hmm.

Q Do you see that? Yes?

A Hmm-hmm.

Q Yes; is that right? Yes? A I'm sorry. Yes.

Q Yes. Okay.

You did not add "severe dehydration"; is that correct?

A That's correct.

Q Okay. Now, also, on the final Report of Autopsy, your draft has nothing for manner of death or immediate cause of death; is that right?

A That's right.

Q Hers says, "Manner of Death, Undetermined"; right?

A That's right.

Q And what does that mean to a medical examiner when you put "manner of death, undetermined"?

A I can't -- I don't want to be put in the position of speaking for all medical examiners.

Q Well, your experience in District Six.

A Okay. I strive to come to a conclusion amongst any of the other four if I can, okay? "Undetermined" will occur, and it may vary from office to office, maybe three to five percent, I'd say, maximum. I would hope other offices don't exceed that.

And what it may come down to is that you just cannot make a distinction amongst the other possibilities that I previously alluded to -- okay? -as to the cause of death -- I'm sorry -- as to the manner of death.

Q Now, eventually, then, in this case, would you have had to have chosen one of the five if you had stayed at the office and been responsible for signing out?

A I would eventually, yes.

Q And if you can't conclude what it is, then you put "undetermined"; is that what "undetermined" is?

A I can't speak for that, because I'm not privy to what transpired historically at that office.

Q I'm talking about you.

MS CARLUCCI: He's not asking you about -- this --

BY MR. WEINBERG:

Q I'm talking about you. If you can't figure out what it is, then you put "undetermined"; is that what you do?

A If I can't figure it out.

Q Okay. Now was there any discussion with law enforcement as to how you were leaning regarding the manner of death?

A No.

Q Was there any discussion with Dr. Wood as to how you were leaning with regard to the manner of death?

A Not that I recall.

Q Did you write any memos in the file reflecting your opinions or leanings with regard to the manner of death?

A I may have. I don't recall, specifically. Frankly, I just -- I honestly -- honestly don't recall.

Q Do you recall any discussions in the office between people in the office and law enforcement as to what the manner of death ought to be?

A Not formal discussions at all. The police from all jurisdictions frequently come by to discuss cases.

Q I'm talking about this case, though.

A In this case, I recall no format discussions. Off-the-wall opinions, everybody can have an opinion, but, I --

Q I don't know what a formal discussion with the police is. What I'm asking you is, is any discussions that you can recall with people in the office and people from the Clearwater Police Department as to the manner of death and the cause of death, in this case?

A I think there -- I think there probably were, but I didn't have sufficient information for me to feel comfortable with regard to differentiating amongst the remaining four.

Q Four manners you're talking about.

A Yes.

Q Now what do you recall the discussion consisted of with law enforcement concerning the manner and/or cause of death?

A Law enforcement does not get involved unless the death is, quote, suspicious, unquote, and that can cover a whole spectrum of different things, okay?

And, casual conversation only I think may have related to the fact that there were questions that were unanswered, particularly with regard to circumstances.

Q What were those questions and what were the circumstances?

A I think there was concern -- well, I don't really specifically recall. i do recall they had some questions, but as to what exactly they were, I'm not quite sure.

Q Who is "they"?

A Oh, I don't recall.

Q From the Clearwater Police Department?

A I don't know how many police there are in the department, you know, but, I mean, all over the place. There's cops also from different jurisdictions floating by.

Q Well, that's what I'm asking you --

A I mean, I'm not sitting there taking notes on who -- I mean, I don't -- you know, you don't have time to do that and still do your job.

Q Well, did Joan Wood have some questions that she raised with you regarding facts or circumstances?

A She -- not with me, no.

Q Well, in --

A I mean, I had -- you know, I was waiting for circumstances.

Q That's what I'm trying to get at. Waiting for what circumstances?

A I would liked to have had a formal police report, okay? I would have liked to have felt perhaps -- perhaps a greater degree of documentation concerning what happened to her, you know, when she was -- I guess from the time she was seen in -- or had this minor auto accident until the time of pronouncement of death.

Q Did you ask for information?

A I think that -- I, personally? No. Stuff went through the chief. Dr. Wood was the chief. And I feel that -- in other words, I didn't initiate a call to the police and ask them for anything.

What I'm to say, is that she was the -- she's the chief of the department and if there were any things that were set up ordinarily, she would do it and it may well be behind closed doors. I don't know.

Q Did you ask Dr. Wood to request documentation from the police?

A I didn't feel that I needed to. I expressed to her the fact that I did not have it and couldn't sign it out until I got it.

Q Was that in a personal conversation with her?

A Oh, it may have been in the hall; it may have been wherever. I'm not sure.

Q Did you tell her what you needed in order to be able to sign it out?

A I mean, she could figure that out. I mean, that's like me telling you, you know, what comes after A, B, C.

Q Did you do any investigation -- did you have any investigation done by anyone in the office --

A No.

Q -- regarding the circumstances. A No.

Q Why not?

A Well, why would I?

Q I'm asking you. I mean, you said you needed information to sign out the case. You all have investigators; correct?

A Well -- okay -- yes, we have investigators, but their investigation is, to an extent, associated with intake of information. It also can be associated with other situations and I don't personally recall, one way or the other, whether or not I asked an investigator perhaps -- okay? -to try and get any additional information. I just don't recall one way or the other.

Q Maybe you can try to explain it to me, because I'm a novice and you've obviously been doing this for a long time --

THE WITNESS: Excuse me, can I use the little boy's room?

MS. CARLUCCI: Let's take a break.

(WHEREUPON the proceedings were in recess from 11:26 a.m. until 11:35 a.m.)


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