711
DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 476
1 HOWARD SCHWART Z,
2 called as a witness on behalf of the Plaintiff, having been
3 first duly sworn by the Clerk of the Court, was examined and
4 proceeded to testify as follows:
5 THE CLERK: Lower your hand and be seated.
6 Loud and clear voice state your name for the
7 record and spell your name please.
8 THE WITNESS: Dr. Howard Schwartz,
9 S-C-H-W-A-R-T-Z.
10 THE CLERK: Your business address.
11 THE WITNESS: 3201 Grand Concourse, Bronx, New 12 York 10468.
13 THE CLERK: Thank you.
14 THE COURT: Dr. Schwartz, I am going to ask you to
15 move that mic down a little bit. Keep your voice up and
16 speak towards it so everybody can hear you.
17 THE WITNESS: Thank you.
18 THE COURT: Mr. Pillersdorf.
19 DIRECT EXAMINATION
20 BY MR. PILLERSDORF:
21 Doctor, I promised everybody we will get you in and out 22 this afternoon.
23 A Thank you.
24 I know you are --
25 THE COURT: Just wasted 15 seconds.
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 477
MR. PILLERSDORF: Okay, Judge.
First question, are you a physician duly licensed to
practice in the State of New York?
A Yes.
Were you, in fact, hired and contacted by my office to
do an evaluation in the case?
A Yes.
And, in fact, what we talked about was doing something
that's known as a clinical pathological correlation?
10 A Yes.
11 Of the events that took place to Mr. Fasolas from an
12 accident that happened on the 11th in 20077 is that correct?
13 A Yes.
14 Before we go any further, and we will talk about your
15 qualifications in a minute, could you tell us what a clinical
16 pathological correlation is?
17 A Clinical pathological correlation is a well recognized
18 medical procedure in which a doctor examines pathology findings
19 done by the pathologist and correlates the findings of the
20 individual during life.
21 Now in normal examinations of every patient we take a
22 history, we also do an examination of a normal patient. Well,
23 with a clinical pathological correlation we also do a history
24 and also do an examination, but the history is usually taken
25 from a police report or comes from witnesses, if available; an
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 478
1 examination, however, is done by a review of the findings of the
2 pathologist. In this way we can learn what the experiences were
3 of an individual passing through a period just before death by
4 doing this clinical pathological correlation.
5 Okay. Doctor, I am going to ask you to assume for a
6 second that we are here because a tree or a limb or a heavy
7 piece of wood, all right, entered the cab of a Bobcat that Mr.
8 Fasolas was operating, all right, while seated in the machine,
9 all right, came in, we know from a police picture that I have
10 shown you, it came into the cab itself, made contact with him,
11 and we know from the police pictures shoved him up against the
12 back wall, all right, and ultimately killed him; is that
13 correct?
14 A Yes.
15 That's your understanding?
16 A Yes.
17 And the thing I asked you with this clinical
18 pathological correlation is, is it possible, within a reasonable
19 degree of medical certainty, to determine, all right, how long
20 he would have been conscious during this process, and what, if
21 any, sensations of pain he would have been feeling during this
22 process; can that be done within a reasonable degree of medical
23 certainty?
24 A Yes.
25 Is that what you actually do?
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 479
A That's exactly what I do, and that's what I did in this
case.
Have you done it before?
A I have done it many times before, yes.
Let's go into some of your qualifications.
You are a physician licensed to practice in the State
of New York; is that right?
A Yes.
Your original specialty was in a particular area of
10 medicine?
11 A Initially endocrinology and diabetes with a specialty
12 of obesity patients, and then became an assistant professor
13 later on in New York Medical College in psychiatry.
14 At this point I no longer have any academic
15 appointments in a medical school and my practice is focused
16 primarily in clinical work on internal medicine and primary
17 care.
18 Have you done any trauma work and emergency care --
19 emergency room care?
20 A Yes, I have. I have done that at Montefiore Medical
21 Center. And subsequently I do make examinations of patients at
22 home who have been injured or sick, and been doing that now for
23 the past 40 years, and including the present time.
24 Academic credential. Where did you do your
25 undergraduate work?
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 480
A I did my undergraduate at Columbia College and
graduated in 1952 with a BA degree.
And where did you go to medical school?
A In Brooklyn at Downstate Medical Center, State
University of New York.
Okay. And when did you get out of medical school?
A 1956 I graduated and became licensed to practice
medicine in 1957.
Now, after one graduates from medical school, what kind
10 of postgraduate training did you go through?
11 A Postgraduate training additionally at Montefiore
12 Medical Center in the broad variety of practice such as
13 neurology, cancer disease, trauma, orthopedics, urology, very
14 large variety of emergency medicine; first two years, where the
15 second year is focused more on internal medicine, first year is
16 more generalized.
17 Doctor, did you do an internship -- withdrawn.
18 When a physician graduates medical school they are an
19 M.D., but not a licensed physician. Did you do a particular
20 type or something known as a rotating internship?
21 A It was rotating or mixed internship.
22 Tell us what the rotating or mixed is?
23 A Rotating or mixed internship, as they were done at
24 Montefiore Medical Center, was to give a variety of experiences
25 to a doctor who already got an M.D. degree in trauma, neurology,
mkw I 716
DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 481
1 medicine, lung disease, tuberculosis, a variety of different 2 illnesses.
3 Did you do a residency after your internship?
4 A Yes, I did.
5 Where was that?
6 A Montefiore Medical Center, and I continued at Mount
7 Sinai.
8 And at Mount Sinai you were part of the Department of
9 Medicine; is that right?
10 A Yes.
11 And in '61 to '62 you were chief resident at
12 Montefiore?
13 A Montefiore Medical Center, yes.
14 Additional training, you have done work -- withdrawn.
15 Tell me from '59 to '61 did you do any additional 16 training?
17 A Yes, at The National Cancer Institute I did additional
18 work in research and clinical care of patients undergoing
19 research studies.
20 Did you also do work at The National Institute of
21 Health?
22 A Yes, The National Cancer Institute is part of The
23 National Institute of Health.
24 You are licensed; is that right?
25 Licensed to practice medicine as of 1957, continuously
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 482
to the present time.
Good enough. In medicine when one becomes a
specialist, is there a rank known as diplomate in the field?
A Yes.
Is diplomate basically the highest rank for someone in
that field?
A Yes.
To become a diplomate in any subspecialty what does one
have to do?
10 A Okay, if you are a diplomate in a subspecialty you
11 first have to become a diplomate in the specialty. As a
12 diplomate in the field of internal medicine you have to have the
13 knowledge, the training, the experience and also the ability to
14 pass both a written examination and oral examination in the
15 broad range of, in the case of internal medicine, endocrinology,
16 pulmonary disease, heart disease, neurology, the broad range of
17 systems throughout the body.
18 In fact did you become a diplomate of internal
19 medicine?
20 A I became a diplomate of internal medicine and was
21 recertified in, certainly medicine, in 1977.
22 You first became a diplomate in '63?
23 A Initially 1963.
24 Is there an exam that you take?
25 A Back in the 1970s there were voluntary recertifications
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 483
1 in which case a doctor is then asked to pass an exam again on
2 the modern developments at that time in the broad range of
3 internal medicine and subspecialties, also to pass an oral
4 examination as well. Nowadays it's required for doctors to do
5 that, in my days it was voluntary.
6 In fact, Doctor, again going back historically, you
7 received a AMA Physicians Recognition Award?
8 A Yes.
9 In July of last year; is that right?
10 A That's been pretty much continuously every three years
11 for having completed 150 hours of Category 1 credit from the
12 AMA, and that's like every three years I am then getting another
13 award for this kind of activity.
14 Included in your academic appointments, you told us
15 about Montefiore, where else have you been working?
16 A Montefiore Medical Center is the clinical appointment,
17 and the medical schools would be the Albert Einstein College of
18 Medicine initially in the early years, and New York Medical
19 College to follow where I received a professor of medicine and
20 also in psychiatry.
21 Have you had hospital appointments over the years that
22 you were practicing?
23 A Yes, the principal appointment is at Montefiore Medical
24 Center, but I have also had an appointment at Morrisania
25 Hospital, as long as it Was in existence, it's discontinued a
rtilcw . .ato.a: 719
DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 484
number of years later, also at North Central Bronx Hospital when
there was an additional with Montefiore Medical Center, when
they disaffiliated I no longer had the appointment at North
Central. Pelham Bay Medical Center, was not as a clinical
appoint at that point, I was doing risk management for Pelham
Bay General.
Are you a member of any professional societies?
A Yes, I am a member of The American Medical Association,
New York State Medical Society, Bronx County Medical Society and
10 The Endocrine Society, also a fellow of American College of
11 Chest Physicians.
12 What is a fellow in the American College of Chest 13 Physicians?
14 A A fellow in the American College of Chest Physicians is
15 a doctor has taken a special interest in diseases of the chest,
16 the heart, the lungs, the breasts, the bones, and is willing to
17 serve in that capacity as fellow, and I have been doing that for
18 the past 35 years.
19 Is there a difference between fellow and just a member
20 of one of these groups?
21 A Yes, there is a difference. The fellow is generally a
22 more advanced stage of involvement in the American College of
23 Chest Physicians, but I am not board certified as a
24 subspecialist in pulmonary disease. Pulmonary disease is part
25 of my certification in internal medicine.
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DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 485
1 Doctor, cut this quickly, have you published in the
2 past?
3 A Yes, I have.
4 Have you attended forums -- have you lectured at forums
5 in both medicine and doing just what you are doing here, in
6 other words, helping me, the jury at the request of a lawyer
7 determine some of these medical legal issues?
8 A Yes, clinical pathological correlation, certainly.
9 Have you done that -- tell us where you have done that
10 for?
11 A Clinical pathological correlations would be a variety
12 of places, Pelham Bay General Hospital, also forums at Kings
13 County with some of the attorneys involved with the district
14 attorneys office, and also Bronx County, and also in New York
15 County for the attorneys and individuals, judges as well, who
16 are dealing with issues of medicine where they need an updating
17 with regard to scientific progress with trauma patients, child
18 abuse cases, domestic violence cases, to look at the ways in
19 which we analyze the nature of their trauma, the nature of the
20 injury and make correlations between the clinical presentation
21 and the pathological findings.
22 Additionally I don't want to closeout the home team,
23 you also worked for, looking at your thing, the Queens County
24 DA's Office, helping them with this particular topic?
25 A Similar activity in the Queens County District
mkw rIPPEMn11111111.11.1r1 -0 ler • 11 r M. • . . •1111.11.11111 721
DR. SCHWARTZ - PLAINTIFF - DIRECT/BY MR. PILLERSDORF 486
Attorney's Office, yes, as I described before.
Published articles?
A Yes, I have published many articles, none on the
specific issues of this case.
MR. PILLERSDORF: Your Honor, at this point --
Since this medical consulting work how long have you
been doing that?
A Since the 1960s I have been doing medical consulting.
And generally if an attorney has a case where there is some
10 trauma or some other malpractice perhaps and I am asked to do a
11 review for them, that's been part of my experience since the
12 1960s.
13 And, Doctor, do you do these evaluations for
14 plaintiffs, in other words, attorneys bringing lawsuits?
15 A Yes, I do, I do for plaintiffs. I have also done
16 evaluations for the defense team as well, but I have only been
17 in court for defense on one occasion back in the 19808.
18 MR. PILLERSDORF: Your Honor, at this time I offer
19 Dr. Schwartz as an expert.
20 MR. BRAFF: Sidebar please.
21 THE COURT: Come up.
22 (Whereupon, a discussion was held off the record
23 at the sidebar.)
24 (Whereupon, the following was recorded and
25 transcribed by Jacqueline Granelli.)
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Dr. H. Schwartz - Plaintiff - Direct 487
1 THE COURT: Mr. Pillersdorf had asked the Court to
2 recognize the doctor as an expert, that may be necessary in
3 the Federal Court, it's not necessary in this court. All I
4 can do is permit him to testify based upon his
5 qualifications and to give his opinion, but the credibility
6 and the weight of his opinion is up to the jurors to
7 determine, not the Court.
8 DIRECT EXAMINATION
9 CONT'D BY MR. PILLERSDORF:
10 O Just before I get to the next question, you're also a
11 diplomate of the National Board of Medical Examiners and Medical
12 Society of Internal Medicine?
13 A That's correct, yes.
14 And you've worked in -- you've had experience in
15 emergency medicine, trauma and critical care?
16 A That is correct, yes.
17 O Let's get down to this case.
18 You were supplied certain materials and information, is
19 that correct?
20 A That's right.
21 Could you tell the jury what basically you were given?
22 A The materials provided was a police report with
23 photographs, also medical examiner's report with regard to this
24 case and also some deposition testimony of the mother. I
25 believe I saw some manuals that were provided by the Bobcat g " 723
488 Dr. H. Schwartz - Plaintiff - Direct
1 Company. Of course, I saw the death certificate. I believe
2 that was some photos also were taken of the decedent with
3 clothes as well as without clothes.
4 Q You've seen the photos. Did you have the opportunity
5 also to review I didn't hear the medical examiner's report?
6 A Yes, I read the medical examiner's report including the
7 autopsy.
8 Q Why don't we start with the autopsy report in clinical
9 pathological correlation this would be the findings, is that
10 correct?
11 A No.
12 Q The autopsy report?
13 A No. That is not findings of the pathologist. In this
14 case did not do a clinical pathological correlation.
15 Q I understand that. What do you call the medical
16 examiner's report?
17 A Medical examiner's report is a description of the
18 abnormalities that are observed by the pathologist. Based upon
19 what observed at autopsy, the pathologist has concluded that the
20 cause of death is compression of the torso without a clinical
21 pathologic correlation.
22 Q Okay. Now, let's -- what I'd like you to do is take us
23 to the autopsy.
24 MR. PILLERSDORF: Is it in evidence? What number
25 is that? is - irrallim•PM11
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Pals al-1 Nan- • . -Lai., 724
489 Dr. H. Schwartz - Plaintiff - Direct
1 MR. HAYT: It's 26.
2 MR. PILLERSDORF: This is our copy?
3 MR. HAYT: Yes.
4 MR. PILLERSDORF: All right.
5 O Do you have notes on your copy or the court officer has
6 the actual one that's in evidence, do you want to use that?
7 THE COURT: Just leave it there.
8 O Doctor, there is an exhibit, there is a court exhibit
9 that is the medical examiner's report. Make sure you separate
10 that and don't take that home by mistake.
11 The first thing they do in the autopsy is they do an
12 external examination. Could you tell us what their findings
13 were on external examination?
14 A External examination the body was a 28 year old man, 74
15 inches in length and weighing about 230 pounds.
16 74 inches is six foot?
17 A Six foot two weighing 230 pounds. There is a
18 description of the body being cold and with changes that took
19 place after death called livor mortis.
20 o All right. What is rigor mortis?
21 A Livor mortis is accumulation of blood in the dependent
22 sections of the body where the body is on the table. Rigor
23 mortis refers to the state of spasticity of the body. This
24 particular body did not have much stiffness, but there was livor
25 mortis which means it was an accumulation of blood postmortem. rimpo.nrr• F --•
ma =Nola 725
490 Dr. H. Schwartz - Plaintiff - Direct
All right. The next one is the general exterior. Head
has a normal overall configuration. Scalp, hair is brown
unremarkable distribution. Ears, eyes, nose and mouth have
4 unremarkable overall external configuration. Blood is present
at the external -- at right external ear canal and at the right
6 nostril and exudes slightly from those openings when the body
manipulated.
Next one says irides are hazel, the eyeballs.
A Pupils are hazel in color.
10 All right. Doctor, I'm going to do this backwards make
11 it quicker. I'm going to ask you hypothetically to assume if
12 you will, that we have a six foot two, 230 pound man in a
13 bobcat, all right. We're not even going to go into why or how
14 the tree got in there. But assume, if you will, that a sapling,
15 a branch, you've seen the pictures, all right, penetrates the
16 cab, strikes the individual at a point that's been determined by
17 the photographs, all right, pushes him, we've been told by
18 detectives up against the back, up and back to the point that
19 his shoulder pops out the back window and his head is compressed
20 against the front and when he's found by the first police
21 officer he's clearly deceased. Now, there are some pictures
22 that have been taken along the way which show the body in --
23 different parts of the body.
24 Again, we apologize to the jury.
25 I'm going to draw your attention to photographs and the IIMIN•MermPlie'ser-n" I I 1 •• • P• . ml - m - 0 aaMPINI19111
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491 Dr. H. Schwartz - Plaintiff - Direct
1 officer is going to get them for you. 25E and H.
2 MR. PILLERSDORF: And you don't have to look if
3 you don't want to.
4 We have a blowup of each of those so the jury can
5 see them.
6 THE COURT: Let's show them to counsel first so
7 they can confirm it is a blowup of the picture.
8 (Pause in the proceedings.)
9 THE COURT: Okay.
10 o I'm going to call your attention to 25E first.
11 A Okay 25E.
12 MR. PILLERSDORF: Actually, can I have 25F as
13 well. Let's start with 23F and then 25E and H. We'll
14 start with these three.
15 COURT OFFICER: 23F.
16 THE COURT: 23F. Question.
17 Q Doctor, looking at 23F, the picture of the decedent in
18 the cab of the bobcat.
19 A Yes.
20 Q We've been told by the police officer that that was the
21 position that he saw him when he arrived, all right. And I'm
22 going to point out to you various objects in the bobcat.
23 Assume, if you will, that this bar is what's called a safety
24 bar, all right, this bar is usually down in the operating -- not
25 usually in the operating position, is down in front of the g FINIPMEllminimr.-1— IM• . . WEI
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492 Dr. H. Schwartz - Plaintiff - Direct
1 operator's waist and upon being lifted we have been told it
2 breaks a magnetic field and will stop -- all hydraulic function
3 doesn't stop the function, but stops all the hydraulic function
4 which is the lifting of the bobcat arms and the movement of the
5 barrel and the movement forward or backwards of the bobcat.
6 Assume this is him in the cab. That's the first position.
7 Now, we then know, all right, from earlier pictures
8 MR. PILLERSDORF: Where are they?
9 MR. BRAFF: We're still on the hypothetical?
10 MR. PILLERSDORF: Yes.
11 (Pause in the proceedings.)
12 MR. PILLERSDORF: 24E.
13 THE COURT: 24E.
14 MR. PILLERSDORF: Yes.
15 THE COURT: Yes, so he has 24E.
16 MR. PILLERSDORF: One more. And 23Y.
17 A 23Y.
18 Q If you start looking at 23E which is the photograph
19 that shows the branch, limb, whatever we want to call it, the
20 wood object, in the cab from the side.
21 THE COURT: He has it.
22 MR. PILLERSDORF: Okay, good.
23 Now, assume, if you will, that through whatever
24 mechanism the tree has entered the cab, all right, has come into
25 the cab, has struck the plaintiff and then pushed him into a g •
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493 Dr. H. Schwartz - Plaintiff - Direct
position that we see one of his final positions in the blowup.
Now, can you trace for us when the tree first strikes the
3 plaintiff, all right, can you tell us what, if anything, the
plaintiff would experience and I'm going to ask you by using 25E
if you can tell us where the first impact is?
A Yes.
7 Q I have a blowup of 25E. This was taken at the scene,
8 but after obviously he was removed from the bobcat. From that
9 can you tell us based on a reasonable degree of medical
10 certainty, if you can, where the first impact of the wooden
11 objects of Mr. Fasolas was?
12 MR. BRAFF: Objection to the concept there was
13 more than one impact.
14 THE COURT: If any. The objection is overruled.
15 A With respect to the initial major impact to that body,
16 based upon the findings of the autopsy and the picture and the
17 police report that shows what was being done at this particular
18 time, the initial impact was to the abdomen and to his right of
19 his umbilicalis.
20 THE COURT: Which is the belly button.
21 A Just under the rib cage on the right.
22 Q Right here?
23 A Yes. You can see a scar at that particular point which
24 is a residue of the blunt trauma of the tree or limb or branch,
25 whatever you want to call it. As it's pressing into his body j9 PWIMIIIPw•wriTr
I.
$1111=t• •L. S r L 729
Dr. H. Schwartz - Plaintiff - Direct 494
1 lifting him up and impaling him against the back and top of the
2 bobcat. This is not a penetrating injury of a sharp item, it's
3
4 Let me go back a step.
5 MR. WATSON: The witness was in the middle of an
6 answer.
7 THE COURT: He can interrupt his answer if he
8 wants.
9 Q If I could, take it step by step, doctor so we all will
10 follow. The belly button which you gave a fancy -- that's this
11 thing?
12 A Yes.
13 Q All right. So that's not from the tree, that's from
14 birth?
15 A That's correct.
16 Okay. Now, when you say this is the first point, what
17 do you mean when you say nonpenetrating?
18 A It's a nonpenetrating injury. For example, a sharp
19 object penetrating the body goes into the skin, into the muscles
20 into the body. For example, if a person falls from a height and
21 falls onto a fence, that has a sharp bar and they become impaled
22 on a sharp bar. This is nonpenetrating, it's an injury where
23 you can see the bar in front of the body as it's hanging there
24 and the back of the body as well as it goes through the body.
25 In this case, it's a blunt injury and a force being exerted on ig Irlel'IMPIEFWErT - r
I
anisias =•I r .p. •amid& 730
495 Dr. H. Schwartz - Plaintiff - Direct
his abdomen by the tree.
Q All right. We've been told by the Bobcat people that
the fastest that they can go is seven miles an hour. That goes
-- the different speeds at different terrains would blunt injury
like that to the abdomen in your opinion within a reasonable
6 degree of medical certainty have an impact on either his
consciousness or his life?
A Yes.
9 Q What would that be?
10 A The individual experiencing the tree touching the
11 abdomen and started to press into the abdomen. The individual
12 would have a feeling of pain in the abdomen. It would be
13 transmitted up in the chest and if fracturing would be taking
14 place, additional pain would be experienced in the chest. And
15 also, if additional fracturing would be taking place, one would
16 also feel it in the head if there was a fracture. We know that
17 there was no fracture of the skull, there was no injury to the
18 brain. There was an attacked cardiovascular system. The heart
19 was pumping blood and there is proof in the autopsy that the
20 heart was pumping blood. This individual was in excruciating
21 pain, but also experienced terror before he died and you could
22 imagine yourself sitting in such a cab.
23 MR. WATSON: Objection, your Honor.
24 THE COURT: The objection is sustained as to
25 imagine yourself. g Mil-1r- , m
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mallnallamm 1.- I 731
Dr. H. Schwartz - Plaintiff - Direct 496
1 A This individual --
2 Q Let me go back a step. The tree limb makes contact we
3 know from the earlier pictures that -- actually, 23F, the tree
4 limb actually bends on itself. Do you have 23F there?
5 A 23F?
6 Q Yeah.
7 THE COURT: Question, sir.
8 MR. PILLERSDORF: Sure.
9 Q Looking at this picture I'm going to ask you to assume
10 hypothetically that ultimately the force was such that the tree
11 limb actually bent on itself. But my question would be, if we
12 look at a blowup of the actual impact -- okay, could you tell us
13 what was seen in this picture and what that tells you, this
14 being 25H?
15 A Which letter?
16 Q H, the close up of the injury.
17 A In 23H.
18 MR. HAYT: 25H.
19 A With respect to
20 Q 25H.
21 A Okay, 25H is a different picture. This is not 25H.
22 THE COURT: That's a blowup of that picture.
23 A Twenty-five H is a picture taken -- sorry, 251-I is the
24 one that you're holding and that -- 25H shows that the primary
25 impact to the abdomen was in that right upper quadrant and one 19
732
Dr. H. Schwartz - Plaintiff - Direct 497
could see the stretch marks in the abdomen from the stretching
of the abdomen as the tree was providing an extra force.
The speed must have been below seven miles per hour as
evidenced by the fact that the introduction of that tree into
the bobcat was slowing it down. These -- number seven implies
6 no resistance on the other end. But as the tree is coming in,
there is a resistance and that individual is -- now that tree is
8 now slowing the bobcat down so that the pressure is exerting
over a longer period of time.
10 Okay. These lines that you see here, what are those?
11 A Those are stretch marks during life from the pressure
12 being exerted by the tree.
13 When we say stretch marks, we know he never gave birth?
14 A That's correct.
15 What causes the stretch mark? Why does the tree cause
16 stretch marks?
17 A According to the autopsy there was evidence of severe
18 stretching, not distension, severe stretching of that abdomen.
19 As the tree was penetrating, as the tree was pushing into the
20 body. So the stretching of that skin caused the stretch marks
21 to be seen.
22 When you talk about the development of stretch marks it
23 didn't rip, is that correct?
24 A There was no major ripping here. This might have been
25 some superficial scratch. Though major ripping of the outside, is
733
498 Dr. H. Schwartz - Plaintiff - Direct
1 but there was ripping on the inside wall.
2 But when one looks at the skin and the stretching from
3 being pushed against it, does the fact that it didn't rip or
4 perforate tell us anything about the speed about which it was
5 being pushed?
6 A All we can say based upon the presence of the tree in
7 the bobcat, the speed must have been slower than seven miles per
8 hour.
9 Good enough. Now, following the autopsy report we know
10 he's first hit in this lower section of the abdomen. Can you
11 tell from the autopsy report the path that the damage took
12 before it killed him?
13 A Yes.
14 Let me interrupt for a second. Doctor, these this
15 pressure on the abdomen including the stretch marks is not fatal
16 into itself?
17 MR. BRAFF: Objection.
18 Do you have an opinion with a reasonable degree of
19 medical certainty as to whether the initial pressure into the
20 abdomen causing pushing back to the point that it causes stretch
21 marks but not ripping would be in and of itself fatal?
22 A I have an opinion that this particular impact with
23 stretching is compatible with an individual who is alert, aware
24 and consciously knowledgeable about the pain that's being
25 suffered. g
734
499 Dr. H. Schwartz - Plaintiff - Direct
Okay. That was the second part of my question. Is
this kind of pressing against the abdomen, the penetration --
the pushing against the abdomen to the point that you can
4 actually see stretch marks, is that a competent producing cause
within a reasonable degree of medical certainty of pain in the
individual?
A It's a cause of pain, but it's not a cause of death.
8 Okay. Now, according to the autopsy, as this pushes in
we know it first causes this abrasion I think to the abdomen, it
10 causes the push back to cause stretch marks, what's the next
11 organ or part of the body that feels the trauma?
12 A What feels the trauma next on the inside lining of the
13 abdomen, a tearing takes place there.
14 O When you say inside the abdomen, what do you mean?
15 A The abdomen has a wall, has an outside wall and inside
16 wall. You're looking at the outside wall, but there is also an
17 inside wall that's in the abdomen in front of the abdomen. That
18 inside wall is now tearing as the pressure is exerting in that
19 right upper quadrant of the abdomen.
20 O We have the outer layer of skin we see, all right, and
21 assume there are certain muscles in the skin?
22 A That's correct.
23 O And that's those stretch marks, behind is the?
24 A Inside wall. The inside wall is now lacerating and
25 being torn. g
735
500 Dr. H. Schwartz - Plaintiff - Direct
Is the tearing of the inside wall is that from this
pressure?
A It's pressure and also a painful experience on the
inside wall of the abdomen.
Q Now, is that -- you got that information from the
6 autopsy report?
A That's from the pathology findings.
Okay. They found a tearing. So the next level would
9 be a tearing of the inside wall to protect this. Is that within
10 a reasonable degree -- doctor, I'm going to ask all my
11 questions, I apologize for repeating it, if you have an opinion
12 within a reasonable degree of medical certainty that's our
13 requirement as to whether or not first the ripping of the -- is
14 that the periosteum, by the way?
15 A No. No. It's the inside wall of the abdomen.
16 Okay. I'm going to ask you within a reasonable degree
17 of medical certainty is ripping by this continued pressure of
18 the inside wall of the abdomen, one, a competent producing cause
19 of pain in an individual?
20 A Yes. The tear involves the muscles of the abdomen and
21 involves part of the peritoneal surface.
22 Q Is it a competent producing cause of death at this
23 point?
24 A Not at that point, no. The person is still alive.
25 There has been no interference with the individual's life. No is
736
501 Dr. H. Schwartz - Plaintiff - Direct
interference with the individual's awareness of what's going on
consciously.
In other words, the pressure that this damage to the
abdomen, the pressure that continued and ripped that lacerations
in the earlier wall within a reasonable degree of medical
certainty would not have knocked him rendered him
unconscious?
A Would not have rendered him unconscious now.
Is there information contained perhaps in the autopsy
10 that would confirm that?
11 A Yes.
12 Q All right. What is that?
13 A The confirmation is that the brain had an intact
14 cerebrovascular circulation.
15 0 I am going to interrupt you. Say that in English.
16 A The blood vessels, connections with oxygenated blood
17 between the heart and the brain were intact. So the brain was
18 aware of what was going on with pain that was taking place
19 inside of the body from the time that the tree limb or trunk hit
20 the abdomen as it began to travel into the pressure region being
21 described tearing the inside lining of the wall progressing up
22 towards the rib cage.
23 0 Okay. The next thing in your opinion within a
24 reasonable degree of medical certainty that would have felt the
25 force of this trauma? g
737
502 Dr. H. Schwartz - Plaintiff - Direct
1 A The next part that would have felt the force of the
2 trauma would be located in the chest. However, based upon the
3 autopsy finding there was a laceration observed in the back of
4 the liver and laceration in the back of the liver as the
5 pressure was being exerted, you would not see much bleeding from
6 the laceration because you're compressing the liver up against
7 the diaphragm, but as the pressure gets exerted into the lung,
8 the next finding is fracturing of the sternum and the ribs of
9 the right side of the chest which is a very painful experience
10 from the breaking of bones.
11 The sternum, the breastbone or breast plate?
12 A That's correct.
13 And ribs were fractured?
14 A Yes, the ribs, specifically the costal cartilage of
15 ribs five and six on the right, but also the back ribs posterior
16 fractures of rib seven. Anterior fractures of eight and nine,
17 in addition, the sternum from the pressure that was being
18 exerted by this tree.
19 Now, within a reasonable degree of medical certainty,
20 do you have an opinion as to whether or not the fractures of the
21 ribs themselves from pressure are a death causing incident?
22 A I have an opinion with a reasonable degree of medical
23 certainty that the crack of the ribs would not cause a person to
24 die. They would cause a person to be in pain, but it would not
25 cause a person to die. g
738
Dr. H. Schwartz - Plaintiff - Direct 503
At this point -- how about the laceration of the liver,
is that the liver, Doctor? When they say an organ
retroperitoneal, what does that mean?
A The organ would be behind the peritoneal contents.
5 However, there is a back laceration on the liver and front
laceration on liver and both of those lacerations are being
compressed by tree pressure going in. So neither one
contributing much to a bleeding since no blood vessels has --
large blood vessels has been torn and you're pressing into the
10 area of tearing of the liver, so the blood loss would be
11 minimal.
12 Now, as the piece of wood, the tree, the limb
13 penetrating, all right, there is a frontal pressure, anterior
14 pressure that's coming from the back, the back wall of the cab
15 and the rising motion, we know he gets lifted up, is that the
16 cause of the rear laceration of the liver?
17 A No. The rear laceration of the liver is just from the
18 tree limb pressing in. So that is the tree limb is pressing
19 into the abdomen and the diaphragm is now on one side of the
20 liver, the abdomen wall, the front side of the liver just that
21 squeezing between the two is enough to lacerate the back of the
22 liver.
23 Just so I understand, where is the liver?
24 A The liver is in the right upper quadrant. If you want
25 to look at the picture over there where you look at the right g •
NJ N M 739
504 Dr. H. Schwartz - Plaintiff - Direct
1 side of the body behind -- now down below a little further.
2 That's right. In that area plus another couple of inches in
3 that area just below the rib margin is where the liver is
4 located.
5 Back there?
6 A In that region.
7 O Liver fairly large organ?
8 A Large organ occupying the distance between
9 approximately the right wall of the body and approximately to
10 the area of the belly button.
11 O So this is all liver back there?
12 A Yes.
13 O But it's behind this?
14 A It's behind the wall of the abdomen. It's within the
15 peritoneal cavity, but it's behind the wall of the abdomen.
16 And now the ribs would be above that?
17 A The ribs would be above that. The diaphragm would be
18 separating the abdomen from the chest and the ribs would be
19 above the diaphragm.
20 Q Okay. And, again, would the liver laceration front and
21 back be considered within a reasonable degree of medical
22 certainty a fatal injury in and of itself?
23 A No, it's not a fatal injury at all.
24 Okay. Now, Doctor, we talk conscious pain and
25 suffering, being aware of pain and suffering, do you have an ig
740
Dr. H. Schwartz - Plaintiff - Direct 505
opinion up to this point if the patient, if -- no, it's not a
2 patient anymore, if Elias Fasolas in your opinion is aware of
these things happening?
A Based upon a clinical pathologic correlation of the
description, it is my opinion with a reasonable degree of
6 medical certainty, that he's aware of the pain, he is
7 consciously aware. He knows what's happening and is powerless
8 to help himself.
9 Q Okay. Doctor, the next injury that reaches this
10 person?
11 A After the liver, small bowel, mesentery, ribs, sternum,
12 up into the next area as his body is pressed against the back of
13 the bobcat and his head is pressed all the way down on his
14 chest. So on the left side of his cheek is zipper marks from
15 his clothing. At this point there is a very small cracking of
16 thyroid cartilage from that positioning.
17 Is that one of the last injuries to take place?
18 A It's last actual injury, but there is a lot of
19 congestion that's seen in both temporal regions and also in the
20 eyeball region from the increasing pressure within that abdomen,
21 within that chest and his efforts to probably remove himself
22 from the tree. In my opinion the extra congestion that's seen
23 in the temporal regions and eyeball region is secondary to the
24 pressure that he is he experiencing from that tree.
25 Q Does picture 25D, this is my copy, does that reflect 1 g I 741
506 Dr. H. Schwartz - Plaintiff - Direct
1 the extra cranial pressure?
2 A Which, are you --
3 Q 250. I don't know if she gave it to you yet. You
4 don't have it yet.
5 A 25D -- the 25D is showing something different from the
6 pressure.
7 What is that showing?
8 A In 250 what happens after a person actually dies is
9 that after death we become extremely acidotic, the acids
10 accumulate to a tremendous degree and accumulation of those
11 acids make it difficult for our blood to clot. And so what is
12 being seen here in 25D is that the blood having inadequate
13 ability to clot, leaking from his nose on the right side,
14 leaking from the ear on the right side. This is secondary to
15 congestion and postmortem change where bleeding is taking place
16 after the death of the patient postmortem.
17 This was taken when he was out of the cab. When he
18 reaches this point, when he has the bleed from the ear, this is
19 the point at which you believe that death took place?
20 MR. WATSON: Objection to the form, your Honor.
21 A He's dead.
22 To a reasonable degree of medical certainty, do you
23 have an opinion as to what -- when -- we can tell from the
24 photographs death took place?
25 MR. WATSON: Objection to the form. Counsel's g
742
Dr. H. Schwartz - Plaintiff - Direct 507
1 question with this photograph is when he is outside of the
2 cab. I don't think it's consistent with plaintiff's claim
3 in this case that death took place when the patient was
4 outside of the cab.
5 THE COURT: He can rephrase it. The doctor
6 testified that bleeding is postmortem, that bleeding takes
7 place after death.
8 MR. PILLERSDORF: All right. If you can show him
9 25C.
10 THE WITNESS: 25C.
11 Q Yeah. Tell us what's visible in 25C?
12 A What's visible in 25C is the head of Mr. Fasolas as he
13 has in his ears a device to mask sound. And you will see blood
14 staining on his right -- we're going towards his mouth and some
15 blood also is visible at his nose from postmortem bleeding while
16 he was still in the cab.
17 o Okay. Now, Doctor, you told us earlier that your
18 opinion within a reasonable degree of medical certainty was that
19 there was approximately five minutes or I'll let you answer the
20 question, but I believe you told us approximately five minutes
21 MR. WATSON: Objection, your Honor, it's a leading
22 question.
23 THE COURT: You are leading the witness, sir.
24 Objection sustained.
25 MR. PILLERSDORF: Okay. g
743
Dr. H. Schwartz - Plaintiff - Direct 508
1 O Doctor, do you have an opinion within a reasonable
2 degree of medical certainty of how long Mr. Fasolas based on
3 your review of the autopsy and photographs would have sustained
4 conscious pain and suffering before passing out and expiring?
5 A I have such an opinion. Based upon clinical pathologic
6 correlation, in my opinion the period of time that Mr. Fasolas
7 would have experienced a conscious awareness of pain and
8 suffering would be at least five minutes. The basis of that
9 opinion is the presence in the abdomen of 500 milliliters of
10 blood without there being much injury at all. In fact, no
11 injury at all to a major blood vessel. The areas within the
12 abdomen showing the 500 milliliters was coming from primarily
13 the lacerations on the wall on the inner lining of the abdomen.
14 The abdominal pressure on the liver was minimizing the bleeding
15 coming from the front and back lacerations. And so that
16 represents about one percent approximately of his experience and
17 considering that approximately 6 liters permitted times 10 would
18 be about 6,500 or say 5 liters per minute, 10 minutes later you
19 have 5,000 -- if I get that correct -- 5,000 liters -- yes,
20 5,000 liters.
21 THE COURT: I think you mean 5 liters, perhaps.
22 THE WITNESS: 5 liters per minute.
23 A Would be 5 liters. Ten minutes later it would be 500
24 liters. So 500 liters --
25 Q 500? is
744
Dr. H. Schwartz - Plaintiff - Direct 509
1 MR. WATSON: Judge, the witness is in the middle.
2 A It was approximately -- sorry, it's not 500 liters,
3 it's 500 milliliters which is approximately one percent of what
4 you'd expect the major -- if a major blood vessel had been torn.
5 So one percent you would have to multiply to 500 milliliters by
6 10 and come to 5,000.
7 Had he been in conscious awareness, that would be 10
8 minutes, but in my opinion he would not have conscious awareness
9 while the blood was being pumped in. Ten minute value in my
10 opinion it would be only in the first five minutes that he would
11 be consciously aware of the pain that he was suffering.
12 What happened after five minutes is that his body would
13 lapse into shock. And lapsing into shock he would continue with
14 the heart beating and brain continue to be nourished with blood,
15 but he would not be aware of what was going on around him after
16 five minutes. So my opinion is that within five minutes when he
17 had his conscious awareness of pain and suffering.
18 Q So then actual death would come almost about ten
19 minutes after, but he is not just aware of it for the past five?
20 MR. BRAFF: Objection. He testified --
21 THE COURT: You are leading, sir.
22 A It depends on how you define death. Theres was, used
23 to be the definition of death based upon cardiovascular death,
24 when the heart would stop you would say the person's heart and
25 breathing would stop, we would say the person's dead. But in l9
745
510 Dr. H. Schwartz - Plaintiff - Direct
1 the 1980s, our definition of death changed. So that in order to
2 enable people to donate organs it was no longer just
3 cardiovascular death, now the criteria became brain death. But
4 brain death takes a long time to take place, long after
5 cardiovascular has taken place. So that in life what we do to
6 maintain organs fresh for transplant we do artificial
7 ventilation, give IV fluids to maintain the life of the organs
8 intact. So that they can be transplanted to other people.
9 So the fact that a person is dead with brain death,
10 that would be much longer after ten minutes. I can't give you
11 an estimate, but that would be far in excess of the time that
12 the person is consciously aware. My opinion is that five
13 minutes would be realistic for conscious awareness.
14 And you're basing the five minutes on the amount of
15 blood that collected in the stomach area?
16 A The 500 milliliters in the peritoneal region which
17 represents only about a one percent of what you have. You'd
18 expect had there been this amount of blood, he must have had
19 effective cardiovascular circulation for approximately ten
20 minutes. But in my opinion he would not have had the
21 consciousness awareness for that ten minute period of time. In
22 my opinion he would become acidotic, gone into shock after about
23 a five minute period of time of being pressed up against the top
24 with the back. He would then lapse into unconsciousness.
25 Q Okay. Doctor, anything else that we get from the is I 746
511 Dr. H. Schwartz - Plaintiff - Direct
autopsy report that can help you or that was important to you in
making these decisions?
3 A In terms of making decisions, those were the main
findings.
So when they say the esophagus is unremarkable, that
6 means there was no damage to the esophagus?
A No actual damage from esophagus from the pressure.
Q When they say that the -- actually with the stomach,
9 they say the stomach has normal configuration and contains 250
10 ccs of thick, cloudy brown material with multiple relatively
11 large fragments of meat, some apparent pieces of potato skin and
12 small amount of onion like material is seen. That would have
13 been his last meal?
14 A Yes.
15 Okay The mucosus of the stomach mostly shows
16 autolytic changes, what does that mean?
17 A When they describe the lining, the inside lining of the
18 stomach which is the mucosal region, that's the part of the
19 stomach that touches the good food that we eat. The term talis
20 means cells had been disintegrating and disintegrating makes it
21 very difficult to observe under the microscope. What those
22 cells look like because the cells are integrating from death and
23 it's hard to distinguish what those cells looked like in life.
24 Q When you look at the brain analysis, 1460 grams, normal
25 size brain? is
' -171•111
a; 747
512 Dr. H. Schwartz - Plaintiff - Direct
1 A Yes.
2 Q All right. It says the surfaces are symmetrical where
3 paired and there are no focal lesions seen?
4 A No focal lesions means he did not sustain any brain
5 injury from the impact of the tree. The brain injury that took
6 place here was from within as a consequence of dying, as a
7 consequence of his body becoming a consequence of the acidosis
8 and life discontinuing, heart eventually stopping, lungs
9 stopping and now the brain is being deprived of oxygen. There's
10 no actual injury to the brain from that tree or the pressure.
11 O Does the fact that there is no actual injury to the
12 brain have any import on your analysis as to whether he was
13 conscious or not during this period?
14 A Yes, with a reasonable degree of medical certainty in
15 my opinion the intactness of blood supply to the brain and the
16 intactness of the brain, basis of my opinion that he had
17 conscious awareness of what was happening to him in his
18 environment before he died.
19 O When they look at his musculoskeletal evaluation, they
20 say except for the abdomen wall, skeletal muscles are
21 unremarkable. Except for the above described injuries, the
22 skeletal structures are unremarkable. All right, Doctor, do
23 those findings, are they consistent with the cause of death
24 being compression of the torso?
25 A No, it's not consistent with the cause of death being l9 m r
•
i
S e 748
513 Dr. H. Schwartz - Plaintiff - Direct
1 compression of torso. Its consistent with the person who as a
2 result of the compression developed acidosis from the death
3 process gradually affecting the body. He lingered and was able
4 to experience the dying process with pain and conscious
5 awareness until the acidosis and shock developed.
6 Doctor, in part of your works have you been asked to
7 discuss things such as preimpact terror?
8 A Yes.
9 Q Could you tell the jury what that is?
10 A Preimpact terror is an experience that we have no
11 control over, but when we see that we are in a situation of
12 imminent major injury or death and that's it's approaching
13 pretty quickly and we have no way to escape, inside of us there
14 is a terrible reaction of fear and anxiety. And such an
15 individual being aware of that is extremely uncomfortable and
16 consciously.
17 Q And that would start as soon as he became aware of the
18 tree entering?
19 A As soon as he became aware of the tree entering into
20 the cab, that experience and observing the tree coming closer to
21 Mm, that experience caused him to become extremely fearful,
22 filled with terror. And that experience went on even after the
23 pressure was exerted on his abdomen and he still had memory for
24 that fear and that terror.
25 Doctor, was there any indication from the photographs g
749
Dr. H. Schwartz - Plaintiff - Direct 514
1 that you got to look at -- 236 and F --
2 MR. PILLERSDORF: Do we have B?
3 A I have 23F.
4 Q 23B as in boy. Yes, I don't know if we gave you that
5 one yet. We did.
6 A 23B.
7 Q Sorry 25B?
8 MR. PILLERSDORF: 23F and 256.
9 MR. BRAFF: 256 as in boy. Can I see which one it
10 is, Gary?
11 MR. PILLERSDORF: Yes.
12 A 23F as in front. 25B that is boy.
13 Look at 25B as in boy. Is there any indication in
14 there that he was in some way trying to or was actively moving
15 as this process began?
16 A Yes, there is.
17 What is that?
18 A In 256 his left upper extremity is under the bar and
19 he's aiming towards the tree limb, and in my opinion it
20 represents his conscious effort to remove himself from this
21 impacting tree.
22 MR. PILLERSDORF: Your Honor, may that one be
23 published to the jury?
24 THE COURT: Show it to the jurors.
25 Once again, ladies and gentlemen, just take a look j9 - I • _.. -• - • VT
a • 750
515 Dr. H. Schwartz - Plaintiff - Direct
1 at this picture and pass it onto your next fellow juror.
2 Remember without saying anything.
3 (Whereupon, the photograph is being published to
4 the jury.)
5 Q 258 the left arm being under the joystick?
6 A The left arm is positioning towards the tree, that is
7 impacting into his and in my opinion represents his conscious
8 efforts to try and remove that tree that's impacting on his
9 abdomen.
10 Q And 23F --
11 THE COURT: They are still looking at the picture.
12 A 23F.
13 THE COURT: There is no question.
14 THE WITNESS: Thank you.
15 COURT OFFICER: Exhibit 256 has been published to
16 the jury.
17 Q And looking at 23F, Doctor, was it the -- Doctor, the
18 one that I have on the board, okay, the significance of the left
19 hand, its positioning and the position of the body, could you
20 tell us what that tells us?
21 A The positioning of the hand -- in the left hand in 23F
22 in my opinion is from his conscious efforts in trying to remove
23 the tree from his abdomen.
24 You see on the inner part of the right leg, all right,
25 there are -- could you tell us what that looks like to you, the i9 =illaiidlfralli Sit Ilal abr. I ME • 751
516 Dr. H. Schwartz - Plaintiff - Direct
markings?
A I see the right knee -- sorry, I'm not clear.
Q I'm looking at pants. There appears to be
discoloration on the pants. My question is, do you have an
opinion as to whether that was caused by this tree and a
movement by the individual?
MR. BRAFF: Objection, your Honor.
8 THE COURT: The objection is sustained.
GI Tell me is there any significance?
10 MR. BRAFF: I don't hear.
11 THE COURT: I don't see where that's a medical
12 question. Sustained.
13 Q Does it have any impact on your opinion that he was at
14 some point moving trying to get out of the way of this?
15 A No, it does not. No.
16 Q Okay. Good enough. Just let me finish up now, Doctor.
17 You've evaluated these cases on other occasions for other
18 lawyers?
19 A Many, yes.
20 Q You go to court periodically for lawyers?
21 A Yes.
22 Q You don't do it because of my good looks. You get paid
23 for that, is that correct?
24 A Yes.
25 Q Can you tell the jury what your going rate is? g m •••
q i • i Mi m M M M 752
Dr. H. Schwartz - Plaintiff - Direct 517
1 A It varies with the complexity and time. The initial
2 fee was $3,500 for the initial evaluation of the materials sent
3 to me and preparation of the report. Since that I did
4 additional work for Mr. Pillersdorf at a rate of $500 per hour
5 including today, anticipating two hours to that would be to an
6 addition of 10 hours at a rate of $500 per hour.
7 MR. PILLERSDORF: Good enough. No further
8 questions, your Honor.
9 THE COURT: Doctor, do you have a file in this
10 matter that you kept?
11 THE WITNESS: Yes, surely.
12 THE COURT: Do you have it with you?
13 THE WITNESS: I have only my report that I
14 authored. It's taken as a copy from my computer. It's not
15 the signed report, it's from my computer. The signed
16 report was sent to them. And I didn't bring anything else
17 because I assumed that everything else will be here in
18 court.
19 THE COURT: Give to Mr. Braff. He can look at
20 that.
21 Do you need a minute to look at his papers,
22 whatever he has?
23 MR. BRAFF: Sorry?
24 THE COURT: Do you need a minute to look at his
25 papers? polmle•Wwwww— I. •9•
..•
aS •iLesaieir • 753
518 Dr. H. Schwartz - Plaintiff - Cross Braff
1 (Pause in the proceedings.)
2 MR. BRAFF: It's okay.
3 THE COURT: Are you ready to question?
4 MR. BRAFF: Yes.
5 CROSS EXAMINATION
6 BY MR. BRAFF:
7 I have a few questions, Dr. Schwartz. You recognize
8 the significance of your testimony, what you're here for is to
9 determine, to give the jury your opinion as to how long after
10 this event took place he was conscious, right?
11 A That's correct.
12 Now, if he was conscious during that period of time
13 wouldn't you expect that he would have made some effort to get
14 out of the situation he found himself in?
15 A Certainly.
16 Do you see anything in any of pictures that show any
17 struggle he made to get out of there?
18 A Yes, you're looking at it. In fact right behind you.
19 I see that picture.
20 A In my opinion that's what it represents as the tree
21 limb is coming in, pushing him towards the back, in my opinion
22 the positioning of that left upper extremity is trying to -- he
23 is trying to remove himself from that chair there.
24 Q Sure there was one event, it wasn't that the tree came
25 in and then out. There was one event that compressed him and he j9 =
li 754
519 Dr. H. Schwartz - Plaintiff - Cross Braff
1 you say he was conscious for five minutes, do you see any effort
2 on his part to get out --
3 MR. PILLERSDORF: Asked and answered, your Honor.
4 Q Excuse me, to move out? I'm not talking what you might
5 initially do by putting your hand there. I'm talking about any
6 effort to get out?
7 A You have to do a clinical pathologic correlation that
8 looks at the autopsy findings and police report to come to such
9 a conclusion, You cannot only take once piece of information
10 and do a clinical pathologic correlation. You need historical,
11 you need the examination from autopsy so that the photos are
12 just a part of that clinical pathologic process
13 Q My question is, asi e rom this photograph which I
14 contend I look at differently from you, do you see any effort
15 that he tried to get out, that he struggled? Do you see in any
16 of the pictures, have you seen that he tried to do that which
17 would represent to us some effort, conscious effort to extricate
18 himself?
19 A You don't have a video of the
20 Do you see anything?
21 A I don't see a video here, no. There is no video.
22 Now, as you see he's got two earphones in each of his
23 ears, would you not imagine that in the five minutes you've told
24 me, was 300 seconds, some effort would have been made and they
25 might have fallen out. Here we find him dead and they are still ilrInarrer II I
4
-M
-e
P ' • .11. 1.• • • asalii 755
520 Dr. H. Schwartz - Plaintiff - Cross Watson
in his ears. Doesn't that more likely, Dr. Schwartz, dictate
2 that what you see is what happened to him and he was unconscious
3 and damaged and fatally, sadly fatally injured just at the same
moment that the tree hit him?
5 A No, that is not conscious at all. Wearing the pieces
6 in his ear in my opinion had nothing to do with his efforts to
free himself from the tree. His ears were not being factors
that were killing him. It was the tree that was killing him.
And so removing the ear piece would have had no effort, no value
10 whatsoever to free him from the tree limb.
11 Doctor, Doc
12 THE COURT: Doctor, the question is, I believe
13 that if there was some kind of struggle to get out would
14 the earphones have fallen out?
15 THE WITNESS: Not at all.
16 Q You don't think so?
17 A Not in my opinion with a reasonable degree of medica
18 certaint
19 MR. BRAFF: I have no further questions.
20 THE COURT: Mr. Watson.
21 MR. WATSON: Yes, sure. Thank you.
22 CROSS EXAMINATION
23 BY MR. WATSON:
24 Dr. Schwartz, my name is Scott Watson and I represent
25 one of the parties in this case. You and I have never met 19 gringlalipM=Mir •Im - • = _ r . • Amin"
.
I
alallalarilEm. .. —I 756
521 Dr. H. Schwartz - Plaintiff - Cross Watson
1 before?
2 A Don't think so. We may have.
3 You have testified a number of times over the years?
4 A Yes, sir.
5 Matter of fact, you have testified quit a bit against
6 doctors and hospitals and when I say hospitals you and I know
7 what I'm talking about nurses action in hospitals over the
8 years, is that right?
9 A In general both doctors and nurses and dentists and
10 hospitals, yes.
11 Q And you've called into question many times the actions
12 of nurses in various cases regarding hospital issues, is that
13 right?
14 A Sure.
15 Can I see that report that you have.
16 (Passing)
17 Now, do you agree withdrawn.
18 And by virtue of you having been in court a number of
19 times, you understand that under cross-examination the lawyers
20 are allowed to ask you yes, no, questions, under that?
21 A Yes, no or I don't know or you have to explain it.
22 You know that I'm allowed to ask you questions which
23 compel you to answer them yes or no or I can't answer, in that
24 fashion?
25 A Yes. jg I 757
522 Dr. H. Schwartz - Plaintiff - Cross Watson
1 o You are aware of that. Do you agree, sir, yes or no,
2 that there can be situations where death occurs instantaneously
3 and there is no pain and suffering, yes or no?
4 A That cannot be answered with a yes or no. I'd have to
5 explain it.
6 (Whereupon, the following is transcribed by Mary
7 Kate Waldron.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 g
758
523 Dr. Schwartz - Plaintiff - Cross Watson
1 CROSS-EXAMINATION (CONTINUED)
2 BY MR. WATSON:
3 Q So you cannot state yes or no that there are situations
4 where death can occur instantaneously; is that your testimony?
5 A I would have to explain it.
6 Q Do you agree, yes or no, sir, that someone can be
7 knocked unconscious immediately, yes or no, even though death
8 may not occur for several minutes later; do you agree with that,
9 yes or no?
10 A Yes, I do.
11 Okay. And that would be in a situation where there was
12 a severe blow; is that correct?
13 A Yes.
14 And you told us on direct examination this was a severe
15 impact, correct?
16 A Gradual impact that's pressing deeply into the abdomen,
17 that's a severe pressure but you don't know the speed of that
18 pressure. This impact is a slow impact pressure and would not
19 be a cause of death.
20 Right. I heard you say that Mr. Fasolas would have
21 observed the tree coming to him, you told us that, right?
22 A That's correct.
23 And while Mr. Fasolas observed the tree coming to him
24 what did he do, if anything?
25 A You don't have a video to explain what he did, all you jg rEMpaPre 11 • = • M = • Jo
diSinIlia- • Int al 759
524 Dr. Schwartz - Plaintiff - Cross Watson
1 have are the postmortem pictures.
2 In order for your opinion to be valid Mr. Fasolas would
3 have done something while he was observing the tree coming
4 towards him?
5 A In my opinion he had fear of what was about to happen.
6 And it is not an opinion with a reasonable degree of medical
7 certainty but it's a possibility that one of his actions was to
8 lift up that bar which would put the Bobcat into a neutral
9 position so it's a possibility --
10 MR. BRAFF: May I object and ask that be stricken.
11 He has no way of knowing whatsoever.
12 MR. PILLERSDORF: That's his opinion and
13 MR. WATSON: No, that is not his opinion.
14 THE COURT: He said it's not with a medical
15 certainty, so it's stricken.
16 MR. WATSON: Correct.
17 THE COURT: Jury will disregard.
18 MR. PILLERSDORF: He didn't say that Can we have
19 it read back?
20 THE COURT: No. Answer stricken Jury directed
21 to disregard it.
22 O You are familiar with the phrase defensive wounds?
23 A Yes, I am.
24 o And defensive wounds are consistent with someone
25 struggling when they have an impact? g I • • ••
Ii• IdEr M. A 760
525 Dr. Schwartz - Plaintiff - Cross Watson
1 A Not entirely, no. Defensive wound would be something
2 if someone comes at you with a knife and protect yourself from
3 injury, the knife may actually strike you and the individual who
4 is being struck with the knife may then strike back, so a
5 defensive injury is an injury that an individual gets in the
6 course of trying to protect himself from being injured.
7 Q You are aware of the fact that on March 11, 2007, sir,
8 there was a homicide team that went to the scene that day to
9 investigate this case right at that time; you are aware of that?
10 A I am not aware of it, I did not read the homicide
11 report.
12 Q Okay.
13 A I read the police report, I did not have the homicide
14 report.
15 Q You can agree that occurred long before you heard
16 anything about this incident?
17 A Of course.
18 Q And I would like you to assume, sir, that one of the
19 individuals that was part of the homicide team was someone by
20 the name of Scott Carter who wrote a report which indicates, no
21 obvious defense wounds, signed as a forensic investigator; did
22 you see that before?
23 A I never saw that report.
24 Q So this was a person -- withdrawn.
25 I would like you to assume that the lead homicide g WV. • I- • •I=1117111
I
'I aknilliabilM ' MI i I I. • • • alL 761
526 Dr. Schwartz - Plaintiff - Cross Watson
1 detective was on the stand yesterday and today and he told this
2 jury that he called in a 16 person team to the Fasolas property
3 on March 11, 2007 and that --
4 MR. WATSON: My enlargement is in the corner
5 there, may I get it while in the middle of this?
THE COURT: Go ahead.
7 MR. WATSON: Excuse me.
8 THE COURT: Is that blowup of one of the exhibits?
9 MR. WATSON: Yes. Which I showed Detective Rivera
10 earlier this morning.
11 Q I take it you have never seen this?
12 A I had not seen that particular chart, no.
13 Q Now, I would like you to assume that this scene log,
14 which Detective Rivera, who was the lead homicide detective
15 putting together this 16 person team who was on the scene that
16 day, one of these individuals Scott Carter is the forensic
17 investigator specifically assigned to this case by the lead
18 homicide Detective Rivera and this forensic investigator stated
19 as part of his report, no obvious defense wounds. You never saw
20 that report either?
21 A I never saw that report.
22 Q And you know as sure as you know your own name that
23 when the 16 person Suffolk County homicide team was on that
24 property --
25 MR. PILLERSDORF: Objection, your Honor. He g prIMMIIMMEIIIM • M=P- ii
Sanim • 4ana I • I - -I w:dina.. 762
527 Dr. Schwartz - Plaintiff - Cross Watson
characterizes and -- mischaracterized, there weren't 16
2 homicide detectives, we met one and the other guy was in
the hall.
THE COURT: Sustained.
MR. PILLERSDORF: And Carter
6 THE COURT: Objection sustained.
7 MR. PILLERSDORF: May the record reflect that
8 Carter --
THE COURT: Objection sustained. We don't need
10 speeches.
11 MR. PILLERSDORF: Judge.
12 Dr. Schwartz, I would like you to assume that the 16
13 person team called into the case on the property on that day,
14 one of them was a forensic investigator who stated in his report
15 that there were no obvious defense wounds, and you and I can
16 agree that you didn't see the scene log, didn't see the forensic
17 investigator's report; fair statement?
18 A I didn't see it, no.
19 o You must have known that those documents existed,
20 correct?
21 A I did not see it, I did not ask for it, it was not
22 relevant to why I was called into the case to evaluate pain and
23 suffering with respect to the clinical pathological correlation.
24 Q Right. But you are asked to evaluate conscious pain
25 and suffering? is = ••
= • . . 763
Dr. Schwartz - Plaintiff - Cross Watson 528
1 A Absolutely, conscious awareness before the actual
2 injury and during the injury, yes, absolutely.
3 Wouldn't it be relevant in your clinical pathological
4 correlation to see the documents that were created right then
5 and there by the people who came to investigate the case right
6 then and there, wouldn't that have some relevance?
7 A To some degree yes, and some degree no. I can explain
8 that, not with a yes or no.
9 No, I will give Mr. Pillersdorf a chance to ask you
10 about that.
11 You do admit that there would be some degree of
12 relevance to you; fair statement?
13 A Some relevance, yes.
14 But notwithstanding that, you must have known these
15 documents existed, you did not ask to see them prior to getting
16 on the witness stand and giving your opinion?
17 A It was -- I did not make a request, that's true. I was
18 not aware, first of all, that a homicide investigation took
19 place other than the police report, and I did not ask for the
20 homicide investigation, it was not the reason I was asked to do
21 a clinical pathological correlation.
22 I understand that, sir.
23 You've been working with lawyers since the '50s; is
24 that true?
25 A Since the 1960s. Actually there was one patient in the ig 1.11rnrolirrmir If ' - U. .
.E.M.ii-lesdad.. EV • - a AN_ I
764
529 Dr. Schwartz - Plaintiff - Cross Watson
1 hospital in 1958 was a lawyer who was a patient of mine who
2 asked me to review a case, I was a resident at the time and I
3 looked at it, it was a thyroid case; and one time I actually
4 testified that I reviewed it for the lawyer, but that was
5 obviously not as an expert.
6 0 I understand that, sir.
7 A 1965 or '66 was about the first time.
8 0 Okay. I will work with 1965 for the purposes of today?
9 A Sure.
10 0 You have been working with lawyers since 1965 with
11 regard to providing expert testimony; is that right?
12 A Yes, that's correct.
13 0 So that would be about 47 years; is that right?
14 A Yes.
15 0 And so I am sure you've been involved and seen
16 documents relating to hundreds and hundreds, if not thousands of
17 cases, true?
18 A I am not sure about thousands.
19 0 Hundreds?
20 A Hundreds, certainly.
21 0 And so you know the type of documents that are
22 generated with regard to cases; is that right?
23 A Yes.
24 0 And as a matter of fact you just told his honor you
25 bring to court your report only because you assume all the other jg . .1 a. I r mg"
r - Sabra 765
Dr. Schwartz - Plaintiff - Cross Watson 530
documents are here in court; fair statement?
A Sure.
Q One of the documents that's here in court is the report
by the forensic investigator that was made that day, March 11,
5 2007, and yet you get on the witness stand and you tell this
6 jury that you didn't ask for it, you didn't see it, you didn't
know it existed, and of course you had no conversation with
Mr. Pillersdorf about that whatsoever?
9 A I would have to explain it to you. That would not be
10 answerable with a yes or no.
11 Q Got it, Doctor, got it.
12 MR. PILLERSDORF: Can I see what you were
13 referring to out of the report?
14 MR. WATSON: Number 27, I believe. It's this one.
15 MR. PILLERSDORF: I don't have a copy.
16 MR. WATSON: You can have my copy. (Handing.)
17 Q So Mr. Fasolas was a six foot two man, weighing
18 approximately 230 pounds, sitting in the Bobcat; is that right?
19 A Yes.
20 Q And would you agree with me that the force that was
21 necessary to lift a 230 pound man back and upwards must have
22 been a severe impact?
23 A Severe, slow impact.
24 Q So do you agree, yes or no, sir, that the force
25 required to lift a 230 pound man off a chair, up and backwards 19 II 1 mL1 a m . i 1.. SIMI •Pc I 9111111111 I
.0.11.rdilia 766
Dr. Schwartz - Plaintiff - Cross Watson 531
is a severe force, yes or no?
A A severe force, yes.
And you've told us -- withdrawn.
We've heard that the Bobcat, the maximum speed for the
Bobcat is about seven or seven and a half miles, you will accept
that's been the testimony at least from one witness?
A Yes.
O You have no reason to quarrel with that?
A None.
10 O So if something is traveling at the rate of seven and a
11 half miles an hour, how much force -- and in your clinical
12 pathological correlation did you make any data or any notes or
13 any reports about how much force must have been impacted to lift
14 a six foot two, 230 pound man off the chair and backwards
15 towards the rear window, did you do any such studies?
16 A I would have to explain to you.
17 Just yes or no, Dr. Schwartz?
18 A I have to explain to you. Cannot be answered with a
19 yes or no.
20 O You can't tell us whether you did or didn't make any
21 studies of that?
22 A I would have to give you an answer, it has to be
23 explained, cannot be answered with a yes or no.
24 Simple question, Doctor.
25 A No, it's not because -- is .111.11. I. OPP11111111.71.111.1111.Na.. a li • La • J9 IN L =111111111
1
= r
- 767
Dr. Schwartz - Plaintiff - Cross Watson 532
1 Q No, no, no.
2 THE COURT: Next question.
3 THE WITNESS: Sorry.
4 Q When did you first have a discussion with
5 Mr. Pillersdorf about your testimony in court today?
6 A First discussion with Mr. Pillersdorf directly would be
7 probably around Thanksgiving of 2011.
8 In that first discussion, did Mr. Pillersdorf advise
9 you that one of the witnesses he was going to call was the
10 homicide Detective Rivera?
11 A No.
12 In that initial discussion with Mr. Pillersdorf, did he
13 advise you that there was a full police investigation report
14 from the day of the accident, yes or no?
15 A No.
16 Did Mr. Pillersdorf advise you that prior to the
17 autopsy that was performed on Mr. Fasolas, there were several
18 individuals who were actually on the property doing an
19 investigation of this case, yes or no?
20 A I don't understand your question.
21 Before the autopsy was done there was an investigation
22 on March 11th, the autopsy was done the next day, is that --
23 A March 12th is the autopsy.
24 Right. But prior to the autopsy being done there was
25 an investigation right then and there at the scene? g I IMIal J. L . Tamepops
• 768
533 Dr. Schwartz - Plaintiff - Cross Watson
A There was a police report.
2 Right.
3 A On March 11th, yes.
4 What I am asking you is this, when you first got
5 together with Mr. Pillersdorf to discuss your opinion, was any
6 part of the discussion about the initial reports made by the
7 police officers and related personnel on day one, yes or no?
8 A Yes, in terms of the police report that I read.
9 Okay.
10 A And my opinion of the police report that I read started
11 off with the time that the actual incident took place on that
12 particular day.
13 Okay. So the initial discussion you had with
14 Mr. Pillersdorf I take it from that answer, you were shown the
15 police report, just not the entire police report; is that right?
16 A I haven't seen the homicide report, but -- I saw the
17 police report, but not the homicide report.
18 So then you would have been aware of the fact in the
19 police report that Detective Rivera stated that the forensic
20 investigator Scott Carter arrived on the scene; you had been
21 aware of that?
22 A Yes.
23 And did you have any discussion with Mr. Pillersdorf on
24 the initial conversation about the role that the forensic
25 investigator plays at that time, yes or no? g
768
Dr. Schwartz - Plaintiff - Cross Watson 533
1 A There was a police report.
2 O Right.
3 A On March 11th, yes.
4 What I am asking you is this, when you first got
5 together with Mr. Pillersdorf to discuss your opinion, was any
6 part of the discussion about the initial reports made by the
7 police officers and related personnel on day one, yes or no?
8 A Yes, in terms of the police report that I read.
9 O Okay.
10 A And my opinion of the police report that I read started
11 off with the time that the actual incident took place on that
12 particular day.
13 Q Okay. So the initial discussion you had with
14 Mr. Pillersdorf I take it from that answer, you were shown the
15 police report, just not the entire police report; is that right?
16 A I haven't seen the homicide report, but -- I saw the
17 police report, but not the homicide report.
18 O So then you would have been aware of the fact in the
19 police report that Detective Rivera stated that the forensic
20 investigator Scott Carter arrived on the scene; you had been
21 aware of that?
22 A Yes.
23 Q And did you have any discussion with Mr. Pillersdorf on
24 the initial conversation about the role that the forensic
25 investigator plays at that time, yes or no? is •
dildiaarda. b 769
Dr. Schwartz - Plaintiff - Redirect 534
A No.
2 Never entered the discussion whatsoever?
3 A None.
4 MR. WATSON: I have no further questions.
5 THE COURT: Redirect.
6 MR. PILLERSDORF: Sure.
7 REDIRECT EXAMINATION
8 BY MR. PILLERSDORF
9 Q Letters RPA stand for --
10 MR. PILLERSDORF: Could I have 27. I will get the
11 real 27, that's what the police report is.
12 COURT OFFICER: (Handing.)
13 Q When you say you saw the police report, I am looking at
14 the document now, Ralph Rivera, the detective, signed this
15 report as Ralph Rivera, all right, and it's called a death
16 report, Police Department of County death report, it's not
17 called homicide, but you saw the typewritten report; is that
18 fair?
19 A I am not sure that I've seen what you are pointing out.
20 Q I will show it to you in a second.
21 A If I could look at it. I would have to look at it in
22 order to tell you if I ever saw it.
23 Q When you are talking about -- first of all, RPA stands
24 for registered physician's assistant; is that right?
25 A Yes, registered physician assistant. g ••=mmEP-=• ?m • =
=
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•
•
= 770
Dr. Schwartz - Plaintiff - Redirect 535
1 If those initials were annexed to Scott Carter's name,
2 we would know he is a physician's assistant?
3 A That's correct.
4 That would mean that the M.E. doesn't go to the scene,
5 the doctor doesn't go to the scene, he sends a physician's
6 assistant; is that correct?
7 A Whatever the mechanism. The RPA means registered
8 physician assistant.
9 In this particular case the RPA, the registered
10 physician assistant, wrote in a homicide report and -- assume if
11 you will when there is an unusual death it's the procedure of
12 the Suffolk County Police Department to send the homicide
13 detective to see if somebody impaled him with a tree, to see if
14 he was shot, if someone played with the machine, you can
15 understand that?
16 A Sure.
17 o And so they send a team. In fact, among the things
18 that the Detective Rivera told us is as soon as he got there he
19 sent some people home, he knew this was -- this didn't look like
20 a murder, all right?
21 A I'll assume that.
22 Q Most people don't use tree limbs as weapons unless you
23 are in Throne or something.
24 With that said -- with that said, when they talk about
25 the defensive wounds on a homicide report, and you gave the jg TN m •• _ momr 11.!
a
-1
= = -, 771
536 Dr. Schwartz - Plaintiff - Redirect
1 example if I guy comes with a knife you could push your hand
2 into the knife, those are defensive wounds; is that right?
3 A That's a defensive wound, yes.
4 Q There probably is no defense to a tree coming at you,
5 can't karate chop the tree away?
6 MR. BRAFF: Your Honor, please.
7 MR. PILLERSDORF; I will withdraw the question.
8 THE COURT: Overruled.
9 Q The fact that he says no defensive wounds on a homicide
10 report, does that have anything to do with your findings?
11 A Yes, it does. It's a very important finding. It
12 indicates that what was taking place was an injury that was not
13 being inflicted by some other person, and some other person was
14 not inflicting this injury in which case he might have had
15 defensive wounds. This injury was being inflicted by the tree
16 that was coming into his body. In such a case the terminology
17 defensive wounds has no relevance whatsoever.
18 Now, when we talk about force, all right, and the force
19 clearly was enough to enter the cab, touch Mr. Fasolas and
20 basically crush him to death; is that a fair statement?
21 A That's what happened, yes.
22 And that -- the force, am I correct, did not even
23 pierce his skin; is that correct?
24 A It was a blunt force of a gradual type because the tree
25 limb was slowing the cab down and so it was coming in slowly but 19 •1117r •• . F.11.11.1.1r.P.I.P1
•
asasska • • I • .1 . 772
537 Dr. Schwartz - Plaintiff - Redirect
1 slower than seven miles per hour.
2 So he is being compressed by a tree limb and your
3 testimony was from the position he was sitting in it looks like
4 he tried to move a little; is that a fair statement?
5 A He tried to remove the tree from his abdomen, yes.
6 o Put his hand there, didn't work, and the tree just
7 continued until it crushed him to death; is that right?
8 A That's correct.
9 O When you are pinned by a tree, with a reasonable degree
10 of medical certainty, a force that's ultimately going to
11 crush -- cause lacerations to your liver, bust a couple of your
12 ribs and push you up to the point that you die, all right, would
13 that be strong enough to push you so that you can't really move
14 move?
15 A Sure, of course.
16 O So would you agree, within a reasonable degree of
17 medical certainty, that he was pinned by the tree?
18 A Absolutely. In my opinion he was pinned by the tree,
19 yes.
20 And in a medical position you have an opinion for
21 having done this work before, he wasn't getting -- he wasn't
22 going to win against the tree; is that a fair statement?
23 MR. BRAFF: I didn't hear the question.
24 He wasn't going to win against the tree?
25 A That's correct he was not going to win against the g " • • mown,
luau •- I- I as. I I. • . aaltdae 773
538 Dr. Schwartz - Plaintiff - Redirect
1 tree.
2 Q Would it be a fair statement when the tree hit his
3 stomach and coming into him with enough force to ultimately lift
4 him up?
5 A That's correct, that's precisely what happened, he was
6 aware of it.
7 Aware of it and in pain, was there anything he could
8 do?
9 MR. BRAFF: Objection. How could he know that?
10 MR. PILLERSDORF: How can anybody know anything.
11 O Based upon --
12 THE COURT: The objection is sustained. Calls for
13 speculation.
14 MR. BRAFF: I object.
15 Within a reasonable degree of medical certainty, do you
16 believe that the tree entered the cab and slowly compressed him
17 against the top and killed him?
18 THE COURT: That's been asked and answered.
19 MR. BRAFF: Yes, thank you.
20 MR. PILLERSDORF: I have no further questions.
21 Wait, Paul has one.
22 (Whereupon, there was a pause in the proceedings.)
23 MR. PILLERSDORF: No, nothing.
24 RECROSS-EXAMINATION
25 BY MR. BRAFF: •
•
_ ialib10111s4p.as ••• ••• I. _mi. 4. • mIrmE4 774
539 Dr. Schwartz - Plaintiff - Recross Watson
1 Q Did you look at the pictures?
2 A I looked at the pictures, yes.
3 Q Did you see any picture at all that would allow for an
4 inference that this man, conscious for 300 seconds, made any
5 effort to drop the seat bar and move the Bobcat backward away
6 from the tree, you saw nothing, did you?
7 A That cannot be answered with a yes or no, but I have to
8 explain it to you.
9 o No, just answer my question. Did you see a photograph
10 that reflected he did anything while conscious to remove himself
11 from that situation?
12 A I would have to explain it to you.
13 No, sir. Just tell me yes or no?
14 A I am giving you, it cannot be answered with a yes or
15 no.
16 THE COURT: The answer is he cannot answer it.
17 Mr. Watson.
18 MR. WATSON: Sure.
19 RECROSS-EXAMINATION
20 BY MR. WATSON:
21 Let me see if I can understand your opinion The
22 Bobcat is going at about seven miles an hour and you say the
23 tree is coming slower than that; is that right?
24 A I didn't say that at all. The tree is slowing down the
25 Bobcat and it's not going seven miles per hour because it's a 19 Ilminui
m. -.0
, il 775
540 Dr. Schwartz - Plaintiff - Recross Watson
counter force in the opposite direction so that the Bobcat is
going much slower than seven miles per hour. There is no way to
tell you exactly how slow that Bobcat was going below
seven miles per hour.
But it is your opinion that the Bobcat was going much
slower than seven miles an hour; is that right?
A Absolutely because of the presence of the tree pressing
8
9 I believe you told us a moment ago the forensic
10 investigator Carter when he wrote down, no defensive wounds, are
11 you laboring under the assumption that Mr. Carter thought at
12 that time that there was an attack by an individual?
13 A I don't know what was in his mind, I wasn't there to
14 give such opinions what was in his mind.
15 You do know he was the specific person called in as the
16 forensic investigator with regard to this case?
17 A I will assume whatever you are saying is true.
18 When he wrote in his report, no defensive wounds, can
19 we at least agree you and I that he knew at the time that there
20 was not an attack by another person?
21 A I cannot answer yes or no. I have to explain.
22 You can't agree to that?
23 A No.
24 MR. WATSON: Thank you.
25 THE COURT: Anything else?
776
541 Dr. Schwartz - Plaintiff - Recross Watson
MR. PILLERSDORF: No.
THE COURT: Thank you, Doctor, you can step down.
3 THE WITNESS: Yes, thank you.
(Whereupon, the witness stepped down.)
MR. PILLERSDORF: No other witnesses for today.
THE COURT: All right, ladies and gentlemen,
that's going to do it for today.
As I told you when you first began I am going to
give you tomorrow off so you can attend whatever religious
10 functions you need to attend and we will resume Monday
11 morning. I ask you to be here at 9:15 at the usual place,
12 and have a very good Easter weekend.
13 Once again do not discuss the case amongst
14 yourselves or with anybody else, don't allow anybody to
15 discuss it with you. Do not visit any of the scenes
16 mentioned. Should you run into any of these attorneys,
17 parties or witnesses don't speak to them at all. Do not
18 yet form any opinion in regard to this matter.
19 Have a great weekend. See you Monday morning.
20 Thank you.
21 COURT OFFICER: All rise, jury exiting.
22 (Whereupon, the jury leaves the courtroom.)
23 THE COURT: This whole thing at the sidebar, do
24 you want to put anything on the record?
25 MR. WATSON: Yes. For the record, prior to g ME •
• i=
J