COPY IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT TASER INTERNATIONAL, CASE NO. 2006-11?7421 INC., C.A. NO. 24233 Plaintiff, vs. TRANSCRIPT OF PROCEEDINGS CHIEF MEDICAL EXAMINER VOLUME OF VII OF SUMMIT COUNTY, OHIO a/k/a LISA KOHLER, M.D. - (171' t: in?? ?g 3; qq?t (m ?e Defendant. aka? $5 H3 a: co ~k gun- ?.13 a; BE IT REMEMBERED that upon the trial of the above?entitled matter in the Court of Common Pleas, Summit County, Ohio, before the HONORABLE TED SCHNEIDERMAN, Judge Presiding, and commencing on Monday, April 21, 2008, the following proceedings were had: (TRIAL) C) e? r"~c4 Ema: :51, :51" "if r~ . a Eric G. Smead, RPR gyl; ?5 Official Court Reporter Q) WIN - 0 Summit County Courthouse CM: r: Akron, Ohio 44308 Eh? Q9 #33 w! .r ERIC G. SMEAD, RPR COPY APPEARANCES: JOHN R. MALEY, KATHLEEN M. ANDERSON, PATRICIA RUBRIGHT, MICHAEL J. DEFIBAUGH, JOHN F. MANLEY, Attorney at Law Attorney at Law On behalf of the Plaintiff TASER International. Attorney at Law Attorney at Law On behalf of City of Akron. Assistant Prosecuting Atty. On behalf of the Defendant. ERIC G. SMEAD, RPR I OPENING STATEMENTS: By Ms. Rubright: 2 By Mr. Maley: 11 By Mr. Manley: 28 WITNESSES: DIRECT CROSS REDIRECT RECROSS Steven Prough 39 67 78 John Ross 85 105 109 110 Vince Yurick 112 125 133 Mike Deihl 136 147 151 161 159 163 Willard T. Congrove 166 172 Robert Horvath 176 191 199 Kristine Albrecht 204 221 -- Denise Walsh (Via CD) 228 Michael Evans, 229 261 268 278 Robert Hoffman, M.D. 282 301 313 Jeffrey Ho, M.D. 326 382 398 Lisa Kohler, M.D. -- 413 447 George Sterbenz, M.D. 468 -- 494 Dorothy E. Dean, M.D. 522 Charles Love, M.D. 549 (Via CD) Mark W. Kroll, 551 569 579 581 ERIC G. SMEAD, RPR COPY WITNESSES: DIRECT CROSS REDIRECT RECROSS Richard Fogel, M.D. 582 (Via CD) Charles Wetli, M.D. 583 608 623 Michael Graham, M.D. 626 643 659 Patrick Smith (Via CD) 665 Vincent J.M. Di Maio 666 (Via CD) WITNESSES: Lisa Kohler, M.D. 690 726 727 734 Dorothy Dean, M.D. 739 752 754 George Sterbenz, M.D. 757 795 803 Barbara Sampson, M.D. 808 841 825 842 (Voir Dire) (816) CLOSING STATEMENTS: By Ms. Maley: 848 By Mr. Defibaugh: 863 By Mr. Manley: 871 ERIC G. SMEAD, RPR COPY JOINT EXHIBITS: RECEIVED (Marked by counsel unless noted) 1?22 Volume 1 202/668 23?32 Volume 2 204/668 33-89 Volume 3 227/668 90-92 Volume 4 673 93-103 Volume 5 673 (No Exhibits 104 149) 150?191 Previously Disclosed Exhibits (Articles) 1 Autopsy report for Dennis Hyde 668/838 2 Death certificate for Dennis Hyde 668 3 Photograph of Dennis Hyde taken by 668 officer of City of Akron 4 911 recording and transcript 668 5 Akron Police Department report of 668 investigation re: Dennis Hyde matter 668 6 EMS run report 668 7 EMS dispatch document 668 8 Interview with A. Constrock 1/5/05 668 9 Interview with Officer J. Ross 1/6/05 668 10 Interview with Officer A. Kelly 1/6/05 668 11 Interview with Officer P. Achberger 1/6/05 668 12 Interview with Officer D. Murphy 1/6/05 668 13 Interview with Officer R. Jackson 1/7/05 668 14 Interview with Officer R. Horvath 1/7/05 668 15 Interview with Officer V. Yurick 1/7/05 668 16 Interview with Officer W. Congrove 1/6/05 668 17 Interview with Officer J. Mousetes 1/7/05 668 18 Report of investigation Det. J. Elton 668 Re: 1/5/05 19 Report of investigation by Det. J. Elton 668 Re: 1/5/05 20 Interview with AFD Medic M. Deihl 1/13/05 668 21 Interview with AFD Medic S. Dort 1/13/05 668 22 Report of autopsy of Richard Holcomb 668/838 23 Death certificate for Richard Holcomb 668 24 Police diagram of the scene 668 25 Report of officer Christina Albrecht 668 26 Deposition transcripts of Deborah Hartman, 668 Jason Moore, Joseph Gaffney, Kim Miller, Daniel Shanaburger, Kerry Ann Helms, Jessica Herman, Adam O'Karma, Jamie Nutter 27 Springfield EMT/fire department records 668 28 Witness statements and transcript 668 Interviews re: Richard Holcomb ERIC G. SMEAD, RPR COPY JOINT EXHIBITSMicroscopic slides related to Holcomb Daily activity patrol log Dispatch print out Letter by Sherri Bevan Walsh 7/26/2005 Autopsy report for Mark McCullaugh Death certificate for Mark McCullaugh Vital statistics medical certification re: McCullaugh Bill of Particulars re: McCullaugh Photograph of Mark McCullaugh at booking Warnings re: Geodon and Ativan APD report 6/25/06 by Officer Yohe APD report 6/25/06 by Officer Lagasse Incident report 6/25/06 by Officer Shively APD report 6/25/06 by Officer Yohe APD report 6/27/06 by Officer Lietke APD report 6/27/06 by Lt. Christman APD checklist 7/11/06 by Lt. Pasko APD report 7/11/06 by Sgt. Leeser APD checklist 7/11/06 Field arrest/sums on for McCullaugh 8/7/06 Field arrest/summons for McCullaugh 7/10/06 Mental health unit S.C. Jail observation log APD report 7/11/06 by Officer Pearson Summa Health System medical records Supervisor's report of investigation 8/7/06 by Sgt. Lugenbeal APD report 8/7/06 by Officer Kabellar APD report 8/7/06 by Officer Gore APD report 8/7/06 by Officer Kianos APD report 8/7/06 by Officer Vavro APD incident report 8/7/06 by Officer Kianos APD investigation report 8/7/06 by Officer Kianos S.C. Jail mental health services 14 day evaluation progress note 8/15/06 Indictment of McCullaugh 8/18/06 Sgt. Brett Hadley report 8/20/06 Deputy B. Polinger report 8/20/06 AGMC medical records 8/20/06 S.C. report of supervisors deputies 8/20/06 S.C. Jail mental health services 14 day evaluation/progress note 8/20/06 Interview of Denise Walsh LPN Behavioral health services S.C. Jail treatment plan 8/8/06 ERIC G. SMEAD, RPR RECEIVED 668 668 668 668 668/838 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 668 COPY JOINT EXHIBITS: RECEIVED S.C. Jail consultation/physicians 668 orders/progress note 8/21/06 S.C. Jail blood pressure flow sheets 668 Intervention notes 8/06 668 S.C. sheriff's report by Officer Krendick 668 8/21/06 Det. Ed Gruska report 8/23/06 668 Det. Ed Gruska report 8/23/06 668 S.C. injury/illness report by Officer Krendick 668 8/23/06 S.C. injury/illness report by Officer 668 Lesnansky 8/29/06 S.C. injury/illness report by Officer Polinger 668 8/29/06 S.C. injury/illness report by Officer Murray 668 8/29/06 S.C. injury/illness report by Officer Martucci 668 8/29/06 S.C. injury/illness report by Officer Clark 668 8/29/06 S.C. injury/illness report by Officer Mayer 668 8/23/06 S.C. injury/illness report by Officer Gardner 668 8/29/06 S.C. injury/illness report by Officer Phillips 668 8/29/06 S.C. injury/illness report by Officer Burley 668 8/30/06 S.C. injury/illness report by Officer Rimedio 668 8/29/06 S.C. injury/illness report by Officer Kiser 668 8/30/06 S.C. injury/illness report by Officer Kline 668 8/30/06 Interview of Dr. G. Peterson 1/17/07 and S.C. 668 Jail record Photographs of McCullaugh's cell 668 Expert reports and CVs of D. Panescu, 673 Expert reports and CVs of A.L De Johngh 673 Curry, Expert reports and CVs of M.W. Kroll, 673 Expert reports and CVs of M. Neil Browne, 673 Expert reports and CVs of R.I. Fogel, M.D. 673 Expert reports and CVs of R. Huffman, M.D. 321/673 Expert reports and CV of M. Evans, 257/673 Expert reports and CV of D.M. Dawes, .D. 673 ERIC G. SMEAD, RPR COPY JOINT EXHIBITS: RECEIVED 98 Expert reports and CVs of C.J. Love, M.D. 673 99 Expert reports and CV of J. Ho, M.D. 397/673 100 Expert reports and CV of M. Graham, M.D. 663/673 101 Expert reports and CV of C.V. Wetli, M.D. 673 103 Expert reports an CV of B. Sampson, M.D. 673 150 Article Dynamic Emergency Medicine 369/674 161 Article Ultrasound Measurement 366/674 163 Article Absence of Electrocardiographic 358/674 167 Article Physiologic Effects of 354/674 Prolonged Conducted Electrical Weapon 168 Article Cardiovascular and Physiologic 349/674 173 Article Prolonged TASER Drive Stun 367/674 181 Article Physiologic Effects of 355/674 Prolonged Conducted Electrical Weapon 182 Article Respiratory Effect of Prolonged 351/674 183 Article Breathing Parameters 359/674 184 Article l5?Second Conducted Electrical 360/674 185 Article 15?Second Conducted Electrical 361/674 187 Article The Neuroendocrine Effects 364/674 190 Article - The State of Current Human 357/674 457 Video CD of Denise S. Walsh 674 458 Video CD of Charles J. Love, M.D. 674 459 Video CD of Richard Fogel, M.D. 674 460 Video CD of Patrick W. Smith 674 461 Video_CD of Vincent J.M. Di Maio, M.D. 674 JOINT EXHIBITS: MARKED 457 Video CD of Denise S. Walsh 228 458 Video CD of Charles J. Love, M.D. 550 459 Video CD of Richard Fogel, M.D. 582 460 Video CD of Patrick W. Smith 665 461 Video CD of Vincent J.M. Di Maio, M.D. 666 MOTIONS PAGE Plaintiff TASER International Rests 674 Plaintiff City of Akron Rests 674 Defendant Motion to Dismiss 675 Plaintiff City of Akron Motion to Limit Testimony of Drs. Kohler, Dean and Sterbenz 683 Defendant Renew Motion to Dismiss 844 Defendant Rests 845 ERIC G. SMEAD, RPR COPY 326 MORNING SESSION TUESDAY, APRIL 22, 2008 I THE COURT: Okay. You ready for your next witness? MR. MALEY: We are, Your Honor. Plaintiffs call Dr. Jeffrey Ho to the stand. THE COURT: Raise your right hand. JEFFREY HO, M.D. a witness, herein called on behalf of the Plaintiff as on direct examination, being first duly sworn as provided by law, was examined and testified as follows: THE COURT: Just have a seat behind you. And for the record just state your name. THE WITNESS: My name is Jeffrey Ho. Last name is spelled H?o. DIRECT EXAMINATION BY MR. MALEY: Good morning, Dr. Ho. How are you? Good morning, fine. Good. First, could you tell the court a little ERIC G. SMEAD, RPR COPY 327 bit about your personal background, where you live, what you do for a living. I live in the state of Minnesota. I work as an emergency physician, that's my primary full?time job, also as a deputy sheriff in the state of Minnesota, and an academic researcher for the University of Minnesota. You might want to move your chair up so just to be sure the judge can hear you. Okay. Are you as a medical doctor have you done scientific research on the effects of low?powered TASER electronic control devices on human beings? .I have. And have you done that over a period of years? I have. And have you done that with a number of different human volunteers? That?s correct. Approximately how many? Approximately five to 600. It climbs everyday because we're still collecting data. And have you done a number of different studies -and experiments? Yes, we have. ERIC G. SMEAD, RPR COPY 328 All right. We'll talk about those a little bit more. In terms of your educational background, could you please highlight for the judge your educational background, professional training, please. How far back would you like me to go? Let's start college and then professionally. College and medical were in California at Loma 'Linda University. Residency training was in emergency medicine at Hennepin County Medical Center in Minneapolis; fellowship training was there also, and law officers training was also in the state of Minnesota. MR. MALEY: In exhibit book number five that's there, and Your Honor, I will find it for Your Honor. You might already have it up here. Exhibit 5, tab 99. THE COURT: I have it. MR. MALEY: All right. BY MR. MALEY: At Exhibit 99, exhibit book five, joint exhibits, is this your declaration and your various reports in this matter? It appears to be that, yes. And if we were to turn back towards the end, ERIC G. SMEAD, RPR 329 about the last 12, 15 pages is your CV at the end of Exhibit 99? That's correct. -And is it an accurate CV at least as of the time the reports were done in this matter? It was accurate at the time the report was done, yes. And where do you currently practice? I practice at the Hennepin County Medical Center. And your day?to?day work at Hennepin County, that's Minneapolis; is that correct? That's correct. What are you engaged in on a day?to?day basis 'there? Day?to?day clinical practice is taking care of patients in the emergency department. Are you licensed in that state? Yes, I am, for medicine. Do you have any certifications? As far as? Any in your profession? Professional board certification in emergency medicine. All right. What other experience do you have with, for instance, military or law ERIC G. SMEAD, RPR COPY 330 enforcement-wise? I have nine years in reserve military experience in the Medical Corp and also law enforcement experience by way of being a licensed peace officer in the state. So you actually have served as law enforcement officer? I currently do so, yes. You still do? Yes. As well as a board certified emergency physician? That's correct. And you also have devoted substantial time in your professional career to researching TASER electronic control devices and their impacts on humans; is that correct? That's correct. Approximately 20 percent of my .protected time is devoted for research. THE COURT: What time? THE WITNESS: 20 percent of my full?time job, Judge, is devoted towards research, and so my niche of research is in this area. THE COURT: Are you doing the research from your hospital? ERIC G. SMEAD, RPR COPY 331 THE WITNESS: My hospital group, actually the way our hospital works is that all of the physicians that are there have approximately 20 to 25 percent protected time, and we are directed to find a niche area of research in something, and that happens to be the area that I have been able to choose. MR. MALEY: Exhibit 99, the CV portion of that, Your Honor, we move that into admission? MR. MANLEY: No objection. THE COURT: I think that was stipulated to. MR. MANLEY: That's correct. MR. MALEY: Thank you, Your Honor. THE COURT: So it's admitted. BY MR. MALEY: Now, Dr. Ho, let's talk about your research and studies and experience with low?powered TASER electronic control devices. First of all, why did you choose that area in terms of you had 'as I understand it, professionally within your organization you had various options you could have chosen; is that correct? ERIC G. SMEAD, RPR COPY 332 The field is wide open to choose whatever we would like to study with regard to human research. The reason I chose that was that at the time I was this was approximately four or five years ago now. This is an area that was unstudied and some answers needed to be found, and so this was a natural area for me to move -into because I had dual qualification in that. The work that you have done with respect to electronic control devices, have there been other scientists and medical doctors involved in some of those studies with you? Yes, there are. Are they all the same institution or are they at various hospitals and universities? They're at various institutions. Some of them started their training with me and have moved on 'to other places. Some of them have always been at other places, so we encompass a wide range of specialists in different areas. And beyond the work that you have done, and we'll talk about much of it this morning and try to highlight for His Honor, there are other doctors and scientists that have done research on the effects of electronic control devices on human ERIC G. SMEAD, RPR COPY 333 beings? There are, that's correct. .And are you studied in that research and literature? I'm sorry? Do you keep up with the work of others in the same area? Absolutely. And has it been four or five years now that you have been involved in doing specific research experiments and study in electronic control devices? 'That?s correct. Now, in terms of the work that you do in that regard, is that funded by a TASER manufacturer of one brand of electronic control devices? Partial funding comes from TASER International, that's correct. Is that unusual in terms of funding of research that a manufacturer would provide that funding? No, I would say that that was typical for most area of healthcare that study things. Are you employed by TASER International? I am not. The time that you spend, for instance, in this ERIC G. SMEAD, RPR COPY 334 matter testifying, doing your work with respect to this case, are you compensated hourly for thatthat kind of work for others as well? Have you done other consulting work? I have done other cases, yes. 'The source of your fees for your time, does that impact your opinions? Absolutely not. Has anyone involved in this case suggested what your opinions, findings, or conclusions should be? No. Now, with respect to the research that you have done with respect to electronic control devices, has anyone at TASER suggested what your findings, conclusions, or observations should be? Absolutely not. Are there of the various studies you have done, many of them are now published, is that correct? That's correct. And others are still moving down that path on peer review publication? ERIC G. SMEAD, RPR 335 It's an ongoing process, yes. Are there any studies that you have done with secret? 'respect to electronic control devices that are Secret as far as? In terms of they're not going to be made available to the public? NO, I would say that they are not made available some of them are not available yet because they haven't been published, but at some point our plan is to publish all of them. That's how the academic world works. THE COURT: What do you mean by "that's how the academic world works"? THE WITNESS: What I mean by that is if I were to disclose publically my research findings, I would not be able to get them published because they would consider that not new or novel information, so many of the research findings that we find in the lab, for instance, if I was to discover something today, I have to hold that sort of close and confidential until I can actually write it up and pass it through the peer review process. ERIC G. SMEAD, RPR COPY 336 THE But you're not responding to the other part of his question, that there are research projects that have been reported to the manufacturer but not to the public. THE WITNESS: I'm not sure I mean, we?re not concealing any information. Is that the question that's being asked? THE COURT: You used the word conceal. You're making an assumption. I'm not making that assumption. THE WITNESS: Okay. Ask the question again. THE COURT: I think we all know that like pharmaceutical products that we have discovered, the public has discovered there has been surveys, reports, research which they chose not to publish because it's not favorable to the manufacturer. THE WITNESS: And we have not done that. All of our findings have come to publication at some point. Although we have some that have not because we're still in the process of writing them. That's what I'm trying to get across. ERIC G. SMEAD, RPR COPY MR. MALEY: And that was my what I wanted to bring out, Doctor. The ones that have not yet been published are in the pipeline towards peer review publication; is that correct? That's correct. And are any of those unfavorable? No. 80 there is not some dark secret project that you were involved in that suggested that these devices kill people that has not come to light yet or would not come to light in the future; is that correct? No, that's correct. By the way, do you hold any holdings, any investments, mutual funds and stocks? I do. And do you have any holdings in TASER International? I do. Were you granted any options or particular ?specified preferred treatment? No, I was not. Did you make a decision on your own to invest in some shares of ERIC G. SMEAD, RPR COPY 338 That's correct. And you're not employed by is that correct? That's correct. Now, the other individuals who were involved in your research, looking at some of the reports Ithat we'll get out in a few moments, sometimes there seem to be as many as five to six other professionals involved in your research; is that correct? That?s correct, that's easily correct. I think it?s upwards of that sometimes. And is that common and typical in scientific research? Very much so. We work as a team, so there is it's not it's much bigger than one person can -do alone. All right. One of those individuals who will testify in this case is a Dr. Dawes. I know Dr. Dawes. All right. Is he affiliated with your hospital? He is not. Is he practicing in the state of Minnesota? No, he does not. Are you related to him in any way? ERIC G. SMEAD, RPR COPY 339 No, other than friends, acquaintances. .He actually practices in California; is that correct? That's to my knowledge, yes. Are there any controls that are in place that you can describe to the court that protect against bias in the work that you're involved in that involves TASER electronic control devices? Yeah, we actually have several. Before any project is able to go forward, we must pass it through at my institution what is called the ~institutional review board and that it?s a committee of people that examine the research, make sure it's ethical, make sure it meets certain standards and make sure we are managing any perception of conflict or anything like that or bias, as you say. And so in order to do that, one of the things that we have done has to you may have noticed on my work there is also Dr. James Minorpapers. He is a statistician who is ?a disinterested party in this. He is the holder of the data and the analyzer of the data, and he is sort of the overseer to satisfy those hearings that we have with the institutional review board. ERIC G. SMEAD, RPR COPY 340 Doctor, do you consider yourself an expert on emergency medical care? I do. And based on the research studies, experiments, and publications that you have done, do you consider yourself an expert on TASER electronic control devices? I do. Have you received exposures of those devices yourself? I have. Have you and you have published on those experiments that you have done, correct? Yes, that's correct. Are you familiar with the concept of excited _delirium? I am. Have you researched that subject? I have myself and my team has, yes. Do you consider yourself familiar about the scientific and medical literature on excited delirium? Yes. Let?s talk a little bit more about your research on electronic control devices. First, I think ERIC G. SMEAD, RPR COPY 341 you have indicated that much of that research has actually been on human subjects; is that correct? That's correct. And are these volunteers who are recruited and signed up to undergo this process? That's correct. They are -- I mean I would like to make a point: They're volunteers. They're not recruited. They're volunteers. All right. Has there also been some research that you have done that involved electronic ?control devices involving animals? Just recently, yes. And what was the circumstance of that recent animal study? The circumstance meaning? What was the subject of the research? We are looking right now at doing some methamphetamine trials, so basically methamphetamine in combination with TASER exposure. '13 that something that because of drug laws and ethics you're unable to do on human beings? That's correct. So that's been done on animals? That?s correct. ERIC G. SMEAD, RPR COPY that work underway? It is. And have there been any preliminary findings and conclusions that have come out of your work? MR. MANLEY: Objection, preliminary findings and conclusions. THE COURT: Had you MR. MANLEY: I'm objecting. THE COURT: For what reason? MR. MANLEY: He has been asking if there is any preliminary findings. THE COURT: I heard that. MR. MANLEY: He has not provided us with any preliminary finding of any studies with regard to THE COURT: Is this the report itself? MR. MANLEY: I don't believe so. THE WITNESS: Judge, I think if I could -- THE COURT: I'm not asking you. THE WITNESS: Okay. THE COURT: Sorry. Is it in the report? MR. MALEY: Your Honor, these are ERIC G. SMEAD, RPR MR. 343 new studies that he is involved in presently. I'm asking if there are any preliminary findings. THE COURT: I think he said yes. Did you say yes to that or haven't you answer that? THE WITNESS: That's correct, Your Honor. THE COURT: Yes, I will let that stand. Sustained. MR. Thank you, Judge. THE COURT: Are you going to ask another question about it? MR. MALEY: I certainly will, and I have a number of questions about a lot of the studies that you have done. THE COURT: The question is, I think in part, that's not within the confines of the report that you gave Mr. Manley. I think that's apparently true. MR. That?s correct. If I may preliminarily, Your Honor. MALEY: These studies are ongoing presently; is that correct? ERIC G. SMEAD, RPR COPY 344 That?s correct. And when you were first retained with respect to the Mr. Holcomb matter, were those studies underway? These particular studies we are talking about? Yes. ?It was not underway at that time, no. THE COURT: I think in fairness to, Mr. Manley, I'm going to sustain the objection. I guess there comes if I'm hearing you right, it comes as a surprise to you? MR. MANLEY: It does. MR. MALEY: That's fine, Your Honor. BY MR. MALEY: -In terms of the study that you have been involved in, Dr. Ho, are there more than 15 studies you have been involved in with humans? Yes. And I think you indicated more than 500 human subjects? Something to that effect, yes. Are you aware of any other scientists or medical professional who has been involved in the extent ERIC G. SMEAD, RPR COPY human studies that you have with respect to electronic control devices? I'm aware of other researChers of human studies but probably not to the number of human people that have gone through or folks that have gone through their volunteer trials, no. And you have devoted have you devoted hundreds of hours to these efforts? Easily. It's part of your ongoing practice? Yes, it is. And is your law enforcement background one of the reasons you're interested in the subject? I would say that's correct. Of the various tests that you have done and experiments, did any human beings die in any of those? No, absolutely not. .Were any of the humans ever in cardiac arrest? No. Were any in pulmonary deficit? No. From your experience as an emergency room medical doctor, board certified, were any at risk of death? ERIC G. SMEAD, RPR COPY 346 No, otherwise we would not have undertaken those. What I would like to do now, Dr. Ho, is highlight for the court some of those studies, and these would be at the binder behind to your right MR. MALEY: Your Honor, I'm going to hand you what is a binder called Plaintiff's Previously Disclosed Exhibits that we will be walking through several of these. These are not yet admitted, but they were disclosed and provided to Plaintiff's counsel. BY MR. MALEY: If you could first direct your attention to Exhibit I68. Okay. MR. MANLEY: 168? MR. MALEY: 168, do you have that? MR. MANLEY: I don't. MR. MALEY: Here. MR. MANLEY: Thank you. BY MR. MALEY: What I want to do initially, Doctor, is just catalog and highlight what some of these address. 168, is this a human study that you were involved in involving humans? ERIC G. SMEAD, RPR COPY 347 That's correct. .Addressing the cardiovasculare and physiological effects of conducted electric weapon discharge in resting adults? Yes. Did you undertake the scientific method in doing this study? Yes, we did. And what was basic conclusion well, step back. What was the basic experiment that you undertook here? 'The paper that you are referencing was our first -- this was our first trial, and so what we wanted to do with this was simply to take human volunteers and expose them to a TASER and find out what effect that has. We were not trying to look at any factor. We just wanted to simply see what effect was the TASER having on people from a physiologic and cardiovascular standpoint. And what were the there were human subjects involved? Yes, that's correct. And did they receive exposures to electronic control devices? ERIC G. SMEAD, RPR COPY 348 They did. At what sort of tools did you use to measure physiologic effect, cardiac effects? We used blood serum analysis of biomarkers, so standard things that we use in medicine to evaluate physiology. We also used EKG machines to look at both strips and 12-lead EKGs which tell us the electrical of the heart and also things like vital signs. In the conclusions it states in part that the TASER X26 "did not affect the recordable cardiac and electrical activity within a 24?hour period following a standard five?second application." Is that a conclusion you reached along with your colleagues? That's correct. We followed these folks for 24 hours after their exposure to ensure that no delayed issues came up. Were you able to detect any induced electrical We were not. Or significant direct cardiac cellulose damage? We were not. MR. MALEY: Move to admit Exhibit 168. ERIC G. SMEAD, RPR COPY 349 MR. MANLEY: We would object, Your Honor. It's just an article, a scientific article that this man has authored and suggests to the court that, you know, given the unique profiles of the three individuals here, it's of limited probative value. THE COURT: Are we still talking about this? MR. MANLEY: 168. THE COURT: 168. MR. MALEY: Yes, Your Honor. THE COURT: will allow it in. I'm not sure why I shouldn't. MR. MALEY: Thank you, Your Honor. BY MR. MALEY: Next, Dr. Ho, I will direct your attention to Exhibit 182 in the same binder. THE COURT: 172? MR. MALEY: 182, 182. THE WITNESS: Okay. MR. MALEY: And is this another publication of a study that you were a contributor to? Yes, that's correct. ERIC G. SMEAD, RPR COPY 350 .And did this involve some additional individuals or different individuals who were involved in the first study? Yes, it did. And did you undertake the scientific method in analyzing, studying the respiratory effect of prolonged electrical weapon application on human volunteers? Yes, we did. Did this involve a longer exposure than the first 'experiment that you were involved in? Yes, it was three times as long as the first. And it was a lS?second exposure? That's correct. And the methods that you employed, again, this was on human volunteers, correct? Yes, it was. And in terms of conclusions, it states the last page: We were unable to detect any respiratory impairment during either prolonged continuous or prolonged intermittent conducted electrical weapon exposure in this study population. Now, how did you monitor that? What we utilized on this was a formfitting mask attached to a breath analyzation machine, so it ERIC G. SMEAD, RPR 351 measures breath?by?breath analysis of everything that the subject inspires and expires, and there is nothing that's left to go out to the environment. Is that equipment that you used in other experiments to measure pulmonary function? Yes, it is. Accepted tool? Very much so. And this work was then summarized in this publication, correct? That is correct. MR. MALEY: Move to admit Exhibit 182. MR. MANLEY: NO Objection. THE COURT: It's admitted. MR. MALEY: Thank you, Your Honor. BY MR. MALEY: I would direct your attention next by the way, Dr. Ho, this was a 15?minute exposure. Have you also done research with longer exposures in measuring physiological effects? Sorry, this is 15 seconds. Sorry, 15 seconds. -15 seconds. And we have done longer than 15 ERIC G. SMEAD, RPR COPY 352 seconds, yes. And what's the longest that you have studied on a continuous exposure to a human volunteer? We have some exposures up to 45 seconds. And those those 45 seconds continuously? Yes. With the when you do these experiments do you have the probes on the chest? We have them in various areas but on the chest vfor some of them. For the court's understanding I take it that you don't fire the probe, you attach it for the experiments? We have done it both ways. Oh, you have. All right. And the 45?second exposure, was there physiologic equipment connected to the subjects to measure their performance? Yes, there was. ?And did you detect any as in the 15?second exposure, were there any respiratory problems under the 45?second exposure? No. In fact we find enhanced respiration during these exposures. You have experienced the device yourself, ERIC G. SMEAD, RPR COPY 353 correct? That?s correct. You have personally observed hundreds of volunteer subjects undergo exposures, correct? .That?s correct. And from your experience in doing those tests, do humans continue to respirate and breathe during TASER electronic control device exposures? Yes, they do. In every case that's what we have found. 167 is the next item. This is a study that was done? Hang on. This is another study that was done. All right. And this also involved a number of ?different researchers with you? That's correct. And were there any adverse effects on the humans that you studied in this report Exhibit 167? The only adverse effect that we could find was from the alcohol that was administered in this study. All right. And so in this study volunteers consumed alcohol That is correct. to test the effects, the interaction of the ERIC G. SMEAD, RPR 354 device with intoxication? That's correct. And they continued to breathe? They did. And their heart function continued? They did. MR. MALEY: Move to admit Exhibit 167. MR. MANLEY: No objection. THE COURT: So admitted. All three reports you have had an opportunity to examine and study? MR. MANLEY: Yes. THE COURT: Of course the court has. BY MR. MALEY: Direct your attention to Exhibit 181. Okay. Did this involve 44 volunteers? Yes, it did. And could you describe just generally for the court what the purpose of this particular study was? .Well, if you remember, the first study that we talked about was simply to find out what happens ERIC G. SMEAD, RPR COPY 355 with exposure to humans at rest. This study particularly was looking at the dynamics of exhaustion, and so what we wanted to find out is if we exerted persons and then exposed them to a prolonged TASER application, this was 15 seconds, also, was there something in combination there that we would find? And so you had the subjects physically work? Yes. All right. Was it on a treadmill? It was a series of anaerobic exercises which also included a sprint on the treadmill. And what you had various co-researchers involved in this project; is that correct? Yes, that's correct. IAnd what were your conclusions with respect to this study? Our conclusions were that once we were able to get them exhausted, and we would check their physiologic state at that point; application of TASER for 15 seconds did not change that condition any further. MR. MALEY: Move to admit Exhibit 181. MR. MANLEY: No objection. ERIC G. SMEAD, RPR COPY 356 THE COURT: All right. It's admitted. BY MR. MALEY: I direct your attention to Exhibit 190, 190. Was ?this a presentation publication that you had co?authored, made regarding electronic control devices? That's correct. And is this more of an overview of the device and various scientific and medical aspects of it? That?s correct. And did you present this at a conference? Yes, that's correct. In Germany? ?Yes. Have you presented at various conferences around the first around United States on electronic control devices? Yes. Have you done so internationally? Yes. Would these be other physicians and scientists for instance? They are also to well, other physicians and 'scientists, also to the military and police ERIC G. SMEAD, RPR 357 agencies and basically anybody who is interested. MR. MALEY: Move to admit Exhibit 190. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: By the way, Doctor, as we get through this list, I'll try to keep moving quickly, we are going to talk about your opinions in this particular case. The findings and conclusions that you offer in this case based in part upon these studies that you have done on humans? Yes, they are. I direct your attention to Exhibit 163. Was this a this is entitled absence of Electrocardiograph Change Following Prolonged Application of a Conducted Electrical Weapon in Physically Exhausted Adults. Is this a different study than the one we talked about before? This is a subset of that same study. All right. And these were 25 volunteers? That's correct. And you talk about electrocardiograph change. Is that the type of is that ERIC G. SMEAD, RPR COPY 358 That is correct. So these subjects were wired up with EKGs, exercised anaerobically, and then received an exposure of the electronic control device? That's correct. 'And how many seconds were they exposed? 15 seconds. And were there any electrocardiograph changes of significance that you found from this experiment? There were none. MR. MALEY: Move to admit Exhibit 163. MR. MANLEY: No objection. THE COURT: It is admitted. BY MR. MALEY: ?1 direct your attention to Exhibit 183, 183. Okay. This is entitled Breathing Parameters, Venous Blood Gases, and Serum Chemistries With Exposure to a New Wireless Projectile Conducted Weapon in Human Volunteers. This dealt with breathing? It did deal with breathing, yes. Venous blood gas, could you explain to the court what that means? That is blood tests where we check certain ERIC G. SMEAD, RPR COPY 359 parameters of blood drawn from a vein to ensure what the Ph status is of the person that we are examining, and Ph is just a measure of acid in the blood basically. All the research we have talked about so far was done with the approval of the Hennepin County Department of Emergency Medicine at your medical center; is that correct? I'm sorry, it's been with the approval of? Of your employer? Yes, that's correct. And what were the summary the results that you found for this experiment shown in Exhibit 183? We did not find any significant changes, nothing that would be clinically concerning. MR. MALEY: Move to admit Exhibit 183. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: Direct your attention to Exhibit 184 entitled 15?Second Conducted Electrical Weapon Application Does Not Impair Basic Respiratory Parameters Venous Blood Gases Or Blood Chemistries as MR. MANLEY: 184? ERIC G. SMEAD, RPR COPY 360 184. By the way at the bottom on this one there is a picture that shows a human volunteer; is that correct? That's correct. Does that show EKG leads attached to the human?s chest? That is correct. 'And the blue item on the face, is that the breathing apparatus? That is correct. That is the mask that they wear during the exposure. And then there on the right arm is there something to detect venous blood gases? The white portion of the elbow, that Yes. that is actually an area where we have drawn blood from. I believe that is a bandage. All right. And this study, did it find any detrimental impact from the lB?second exposure? It did not. MR. Move to admit Exhibit 184. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: ERIC G. SMEAD, RPR 361 Now, Exhibit 185 is entitled lS?Second Conducted Electrical Weapon Exposure Does Not Cause Core Temperature Elevation in Non?Environmentally Stressed Resting Adults. The attempt of this study was to determine core temperature, is that correct, in a human? It was to determine core temperature and also the effect the TASER would have on that temperature. And were there human subjects? _Yes. 21? Yes. Was the scientific method employed? Yes, it was. 1 Was there any material increase that you found from this study in the core body temperature from electronic control device exposure? There was not. MR. MALEY: Move to admit Exhibit 185. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: Now, Exhibit 186, another lS?second application, it's titled Conducted Electrical Weapon ERIC G. SMEAD, RPR COPY 362 Application Does Not Impair Basic Respiratory Parameters, Venous Blood Gases or Blood Chemistries and Does Not Increase Core Body Temperature. This describes the prior study, correct? It encompasses a portion of the prior study, yes. It expands on that protocol; is that correct? That's correct. ?Did they involve 18 subjects? It did. Was the scientific method employed? Yes, it was. Were there any material adverse impacts that you found physiologically from this study on the human subjects? There were none. MR. MALEY: Move to admit Exhibit 186. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: I direct your attention to Exhibit 187 entitled the neuro could you pronounce that? Neuroendocrine. Effects of the TASER X26 Conducted Electrical ERIC G. SMEAD, RPR COPY 363 Weapon as Compared to Oleoresin Capsicum. Close, Oleoresin Capsicum. 'Is that O.C. spray? That's correct. Is that the same as pepper spray? That's correct. So the technical name is the long name. That's also called O.C. spray, but many of us know it as pepper spray? That?s correct. What was the purpose of the Exhibit 187 study that you engaged in with human volunteers? The purpose of this was to examine markers of stress that humans can give off during different? stimuli, and the TASER was one of those, and so that's we basically wanted to check what those markers did during TASER exposure. And what were the summary or the conclusions that you reached? The collusions were that while you do get a slight raise in neuroendocrine markers from the TASER exposure, there are other things that actually make those markers go up quite a bit more and stay up for longer. Such as O.C. spray? ERIC G. SMEAD, RPR COPY 364 O.C. spray is one. We also check with grappling, so hand?to-hand combat on the ground, that type thing. So you compared a TASER exposure to another law enforcement restraint and found the TASER had less physiologic impacts from this study, correct? That's correct. You compared it also to physical activity? ~Physical physical restraint is actually what we were looking at. And you found did you find that the TASER had less impact than the physical restraint? Yes, that's correct. MR. MALEY: Move to admit Exhibit 187. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: ?1 direct your attention to Exhibit 161 entitled Ultrasound Measurement of Cardiac Activity During Conducted Electrical Weapon Application in Exercising Adults. Okay. Could you describe this had 37 subjects; is ERIC G. SMEAD, RPR COPY 365 that correct? That's correct. All human? That's correct. All right. And 15-second application of a electronic control device? That's correct. What was how was the ultrasound tool used in this experiment? Well, the ultrasound is a method for us to actually use realtime visualization of what the heart is doing. So as we have these people who have exercised to exhaustion and then we apply a TASER to them for 15 seconds, we are able to watch what the heart does in realtime during that lS?second application. So you're while they're receiving exposure, your research group was watching the heart on ultrasound? That's correct. And what were the results that you found from this human research study? We were able to, during all of these, watch what .the heart was doing. We did not see any concerning heart abnormalities. ERIC G. SMEAD, RPR COPY 366 MR. MALEY: Move to admit Exhibit 161. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: I direct your attention to Exhibit 173, 173, Doctor Okay. entitled Prolonged TASER "Drive Stun" Exposure in Humans Does Not Cause Worrisome Biomarker Changes. This involved how many subjects 'human subjects? 21. And in this subject they were exposed to drive stuns; is that correct? That's correct. Now, you have reviewed materials in, for instance, the Mark McCullaugh case that is part of the subject of this lawsuit; is that correct? That's correct. Is it your understanding that drive stuns were applied to Mr. McCullaugh as opposed to probes shooting through the wire? That's correct. And what was the length of the exposures from ERIC G. SMEAD, RPR COPY 367 drive stuns that were applied by your group in this experiment? I believe these were IO?second exposures. Were there any worrisome changes that you found in the serum biomarkers? MR. MANLEY: Objection. Worrisome, I don't know what that means. THE COURT: I mean is it something in the language of the report? MR. Yes, it is, Your Honor. I?m just trying expedite it. I can ask a different way if I you I will withdraw the question. BY MS. MALEY: Did you find any material of adverse impacts from this study on the drive stuns on human subjects? THE WITNESS: I can answer that? THE COURT: Sure. We did not. I direct your attention _1 MR. MALEY: Move to admit Exhibit 173. MR. MANLEY: No objection. THE COURT: Admitted. BY MR. MALEY: ERIC G. SMEAD, RPR COPY 368 Direct your attention to Exhibit 150 in the same binder. THE COURT: You're going to figure out these pages going back and forth, back and forth? MR. MALEY: Last one, Your Honor, Exhibit 150. THE WITNESS: Okay. BY MR. MALEY: All right. Exhibit 150, is it something that you contributed to Yes. along with other medical doctors? That is correct. All right. And it's entitled Confirmation of Respiration during Trapezial Conducted Electrical Weapon Application. What was how was this study done? This is a case report. It's not a particular study, but what this was was we have had many folks call us or write us and say, "Hey, we would like to look at this" or "we think that this is a certain theory that should be looked at." This was one of those where one of the areas that is taught to provide a drive stun is the ERIC G. SMEAD, RPR COPY 369 trapezius, which is up in the shoulder; and one of the theories that folks have brought up in the past is that if you apply a drive stun to this particular area perhaps can impact the person's ability to breathe, and so we wanted to examine that. And did you use a sonogram to do that? An ultrasound machine, yes. 'Ultrasound. And during the drive stun application was respiration continued? Yes, it was. Was Exhibit 150 recently published in the Society For Academic Emergency Medicine? Yes, it was, just a couple of days ago. So it's a published item that you and others contribute to regarding these devices, correct? Yes. MR. MALEY: Move to admit Exhibit 150. MR. No objection. THE COURT: AdmittEd. BY MR. MALEY: All right. Doctor, let's turn now having summarized the work that you have done on TASER electronic control device in humans, let's talk a ERIC G. SMEAD, RPR COPY 370 bit about your work in this particular case. What did you undertake in terms of review of materials with the three deaths in this matter, the Hyde death, Holcomb and McCullaugh? I reviewed everything that was provided to me. That include investigative reports? Again, I have a long list of things. I would have to actually look at my report to give you an exact. All right. And your report we were dealing with back at Exhibit 99, you have written reports that address each of these three incidents; is that correct? .That's correct. All right. What I would like to do for convenience is to direct you through each of the three. Let's start with Exhibit 99 Dennis Hyde, which there is a June 30, 2007 segment of your reports, Exhibit 99. It's about a third of the 1 way through, Exhibit 99. Okay. Do you see that? 'Yes. And is that does that summarize the analysis, ERIC G. SMEAD, RPR COPY 371 findings, and conclusions you reached with . 2 respect to Mr. Hyde's death? i 3 A. Yes. 4 THE COURT: Where are you at? 5 MR. MALEY: Your Honor, Exhibit 2 6 99, if I can. i 7 THE COURT: I have 99. 8 MR. MALEY: It's a little bit 9 back, if I may. 10 BY MR. MALEY: 11 Q. Okay. June 30, 2007 report addressing Mr. Hyde, 12 first of all, in your review of the toxicology . 13 and autopsy records did you find that therewere 14 drugs in Mr. Hyde's system postmortem? 15 A. Yes. 16 Q. And do you recall those being methamphetamine 17 A. Yes. 18 Q. and Oxycodone? 19 A. 'Yes. 20 Q. Are those drugs that you are familiar with as an 21 emergency medicine physicianHave you had experience with elicit drug . 24 overdoses in your practice as an emergency room 25 physician? ERIC G. SMEAD, RPR COPY 372 Yes. And do you understand methamphetamine to be potentially lethal? Yes. And the toxicology and medical literature support that? Yes. And the behavior that was described in Mr. with Mr. Hyde in the basement of that women's house on that morning, were there any things that you noted about Mr. Hyde's behavior as reported by witnesses on the scene that impacted your assessment of his demise? Well, his behavior was certainly very abnormal, and I guess it would be characterized as delirious by many. It was totally out of the ordinary. And the behavior he exhibited, was it consistent with methamphetamine intoxication? It could be, yes. Was it consistent with excited delirium? Certainly could be, yes. Was did you read reports of Mr. Hyde having a lacerated wrist? I remember him having a large laceration, yes. ERIC G. SMEAD, RPR 373 I'm going to show you Exhibit 3, a board, that has a picture of Mr. Hyde. There has been testimony in this case that this was in the basement after he was initially restrained for probe mode. Him having been shirtless, is that something that is common with excited delirium? Various states of public nudity and undress are definitely associated with, yes. The blood that is shown on Exhibit 3, is that consistent with the lacerated wrist? It?s consistent with a large laceration, yes. Now, Doctor, in the Hyde matter did you, after studying it, reach an opinion as to whether electronic control device application to Mr. Hyde contributed to his death? Yes, I did. And what is your opinion? .My opinion was that it did not have anything to do with his death. Do you draw on the scientific human research that you have done in part for that? Yes, absolutely. Was there evidence that you reviewed of activities that Mr. Hyde was engaged in after ERIC G. SMEAD, RPR COPY 374 electronic control device applications? I'm sorry. Would you say that again? In your review of the materials did you learn that there were any activities that Mr. Hyde was engaging in at a point in time after receiving applications of TASER electronic control devices? Yes. Talking? Yes. Resisting? Continuing to get up, yes. Let?s turn to Mr. Holcomb. If we go back to the very start of your report, Exhibit 99, August 17th, 2006, does this report, with a subsequent June 26th, 2007 update, address Mr. Holcomb's situation?- Yes. Did you learn did you undertake a similar review of the medical literature, medical .evidence in his demise and the investigative reports? That?s correct, yes. And did you review the toxicology results postmortem? I Yes, I did. ERIC G. SMEAD, RPR COPY 375 And did you learn that Mr. Holcomb postmortem had had methamphetamine and Ecstasy in his system? Yes, I did. Are those both lethal drugs? They can be. And is Ecstasy something that you have encountered professionally in the emergency room treatment? Yes. Do you have an opinion regarding Mr. Holcomb and whether TASER electronic control device contributed in any way to his death? Again, he had all the same conclusions as the prior case, no connection; Did you say no connection? No connection. And do you draw on your human subject research in part for that conclusion? Yes, that's correct. .Turning to Mr. McCullaugh's situation THE COURT: If you don't mind going on, where was where was the one you just talked about? MR. MALEY: At the very start of Exhibit 99, Your Honor. There were two ERIC G. SMEAD, RPR COPY 376 reports that address it, August 17th, 2006, which is the second page of Exhibit 99 after his declaration THE COURT: Okay. MR. MALEY: for Richard Holcomb, and following that there is an update June 26, 2007. So there are two reports that address that. THE COURT: Now, where is the third? BY MR. MALEY: Q. Now, directing your attention to Mr. McCullaugh's situation, in Exhibit 99 BY MR. MR. MALEY: And Your Honor, I would be easily able to find that for you, if I can be of assistance. THE COURT: Toward the back? MR. Towards the back, about two?thirds of the way back of Exhibit 99 before the CV. There we are, right there, Your Honor. MALEY: Have you found that, Dr. Ho? A. Yes, I have. Q. December 27, 2007? ERIC G. SMEAD, RPR COPY 377 Yes. All right. Now, is there within Exhibit 99 a similar written expert report you have prepared after undertaking review of the evidence available in the McCullaugh matter? Yes. And for reference point for McCullaugh matter as you recall being a 295?pound man in the jail cell? 1 do. .All right. And you undertook a similar analysis as you did with the other two; is that correct? That's correct. Was from Mr. McCullaugh's situation, we talked about this a little bit before, but it is your understanding from your review of the materials that drive stun applications were attempted? That's correct. Do you recall whether they were described by law enforcement as being effective or ineffective? 'Ineffective. Ineffective? Ineffective, yes. THE Wait a minute. You're saying which? ERIC G. SMEAD, COPY 378 THE WITNESS: I -- THE COURT: They were effective, weren't they? THE WITNESS: Well, I think what happened was when they were applied, he was continuing to resist and would get right back up and continue fighting. That's what I remember them. THE Okay. MALEY: -- THE COURT: You mean ineffective, effective that it stopped him? THE WITNESS: I don't think it was. THE COURT: You?re not saying like they missed the target? You're not saying that? THE WITNESS: I'm not suggesting they missed the target. THE COURT: Because they were right on the surface of the skin, wasn?t it? THE WITNESS: Correct, I'm suggesting they failed to take care of the ERIC G. SMEAD, RPR COPY 379 problem. THE COURT: Okay. Gotcha. BY MR. MALEY: And it was described by officers and materials you reviewed? Yes, that's correct. And in drive stun, does contact need to be made to the human for there to be an electrical circuit? Yes, there has. And that's on the surface in a localized area? Yes. And if someone is moving, can that make it difficult to keep an effective circuit? Very difficult sometimes, yes. Is that something you're familiar with as a law enforcement officer -- Yes. v? and TASER devices? Yes. And was it your understanding did you have any understanding as to whether Mr. McCullaugh was clothed or nude? I believe he was nude at some point. I don't .know when it started, but he was clothed. At ERIC G. SMEAD, RPR COPY 380 some point he was nude. In terms of the basic timeline of Mr. McCullaugh's situation, did that impact your opinions with respect to whether TASER contributed to his demise? Yes, definitely. And what is your understanding of the basic sequence of events from officers entering the cell, attempting the device on him, restraining him, nurse coming, O.C. spray being used later, and then a notification being an arrest? My memory of this was that it was quite that several minutes even up to I believe it was 20 or 30 minutes may have passed. Was do you have an understanding as to .whether well, was there an occasion where a nurse applied injected some drugs into Mr. McCullaugh, to your understanding? Yes, there was. And do you understand that to be sometime after TASER applications? I don't remember the exact point when that occurred. If that's what the evidence showed, would you have any basis to dispute it? ERIC G. SMEAD, RPR would not. Did you reach an opinion as to whether Mr. McCullaugh's demise was caused by TASER electronic control device applications in drive stun mode? .I'm sorry, restate that again. Yeah. Did you reach an opinion as to whether Mr. McCullaugh's demise was caused or contributed to by application of TASER device in drive stun mode? I reached an opinion that they were not connected. And was that based in part on the human research that you had done? Yes. 'Including in drive stun research? Yes. Was Mr. McCullaugh engaging in behavior that was consisted with excited delirium, based on your professional Opinion? Yes. 80, Doctor, in summary, your opinions in these matters, the TASER device contributed or did not contribute to their demise? Did not contribute. ERIC G. SMEAD, REP OPY 382 MR. MALEY: No further questions, Doctor. Thank you. Pass the witness. MR. DEFIBAUGH: No questions, Your Honor. THE COURT: Go ahead. MR. MANLEY: Thank you, Your Honor. CROSS-EXAMINATION BY MR. MANLEY: Good morning, Doctor. My_name is John Manley. I represent the Summit County Medical Examiner in this case and, Doctor, first of all, I would like to know, we went over quite a few studies that you have been involved in regarding testing on TASER electronic control devices on human beings. How many individuals would you say total there were, human volunteers, throughout the breathed of these studies that we have talked about? My entire research or just what was represented here? Just what was represented here today. I would have to count up each one. Can you give me a best estimate? ERIC G. SMEAD, RPR COPY would prefer to go up and count up each. I mean I don't know. I would have to count each one. Do you want to go do that? Take a minute to do that then. If that's what you would like me to do. I guess, if you can't give me a best estimate. Can you give me all the numbers that we were MR. MALEY: Certainly. THE WITNESS: Sorry, I didn't know I need to be this accurate. THE That's all right. Give me a chance to get up and walk around. BY MR. MANLEY: It's about 375. I'm sorry, Doctor. About 375 total human volunteers across the studies that Mr. Maley walked you through this morning? That's correct. Okay. 'Of those 375 human volunteers, any of those on methamphetamine? Not that they admitted to, Okay. Any of those on Ecstasy? Again, not that they admitted to. Any of those appear to be in an acutely ERIC G. SMEAD, RPR COPY 384 state? No. All these human volunteers appeared to you to be healthy individuals? Did they appear to me or were they actually healthy? Did they appear to you to be healthy individuals? They were walking, talking; yes, they appeared to be healthy. Mr. McCullaugh, with regard to his condition you indicate that his behaviors are consistent with excited delirium. You're aware that he was previously diagnosed with schizophrenia? Yes, I am. His behaviors would also be consistent with schizophrenia? Yes. You testified strike that. A11 of these studies were performed involving the they had their core issue the effect that TASER electronic control devices have under a number of under a number of situations, is that fair to say? Sure. How many studies have you performed for TASER ERIC G. SMEAD, RPR COPY 385 would you say overall? Studies I perform are not for TASER. They're actually for my own practice. They have involved TASER devices. And there are a lot of studies that you have done that happened to involved TASER devices? That's correct. How many studies have you done involving TASER devices? Again, I would have to add them up. Probably somewhere in the realm of 20, 30. And do you get compensated for studies involving TASER devices? I personally do not get compensated for those except for my employer because that's part of my academic protected time. You seem to have a lot of time, Doctor, to perform studies regarding use of TASER electronic control device, is that fair to say? That is fair to say. So your employer in Hennepin County, Minnesota is certainly willing to do that. You don?t get paid for these studies, though. Your speeches and presentations that you make throughout the world, is there any kind of ERIC G. SMEAD, RPR COPY 386 compensation that you're paid for those? I do get compensated for those, yes. And TASER compensates you for those? It depends on what they're asking me to provide through lectures. And how many lectures has TASER asked you to provide? Again, I don't know. Somewhere in the realm of 15, 20. And every time that you do that they compensate .you for your time? Yes. And you're paid for your travel expenses? Yes. You recently did you recently go to Japan to make a presentation? Last year, yes. And you have been to Germany to make a presentation for Yes. 'And you own TASER shares? I do. How many shares do you own? Approximately 4,000. So when the stock price of TASER rises, you ERIC G. SMEAD, RPR OPY 387 benefit? Sure. Do you continue to purchase TASER shares? I do. Do you trade TASER stock options? I do not. You're not a forensic pathologist? I am not. You're familiar with the product warnings put out by TASER International corporation that discuss individual susceptibilities, you have seen that language, individual susceptibilities? I have seen those, yes. You testified earlier that some of these study studies involving getting people exercising and then successfully deploying the X26 or having people consume alcohol and successfully deploying the X26, that you do this to see, is it fair to Isay, if there is something in combination that you might find? That?s correct. So it's fair to say that you implicitly understand that there are a number of factors that could be in existence any one point in time? That's correct. ERIC G. SMEAD, RPR COPY 388 It?s understandable you're unable to test for methamphetamine or illicit drugs with regard to -how it works they work in combination with successful deployments of X26s, correct? In humans, yes, that's correct. In humans. You referenced fleetingly earlier you?re hoping to get the study going involving the use of pigs. Why do you use pigs? Why are they the preferred alternative to human beings? Well, the study is actually going and it's not necessarily that pigs are the preferred 'alternative. In fact we are using sheep at my lab. I thought Mr. Maley on direct examination you indicated you're using pigs? MR. MALEY: I asked animals, John. MR. MANLEY: I'm sorry. BY MR. MANLEY: Is it fair to say that pigs are frequently used in experimentation when human beings are unable I do. to provide any data? Pigs are one of the animal models that are used, ERIC G. SMEAD, RPR COPY 389 yes, but there are others. On the case of Mr. Hyde there has been a lot of discussion about his methamphetamine ingestion. You understand and you would agree, would you not, Doctor, that methamphetamine there is no uniformly lethal level of methamphetamine? I'm aware that fatalities have been reported at various levels, that's correct. .No doubt about that. That's not quite what I'm asking. There is no uniform there is no level of methamphetamine that is uniformly lethal across the population? I believe that's correct. And same thing can be said for Ecstasy, no uniformly lethal dosage? Well, actually can I take that back? I believe that there is a level at some point that if you give a large enough level of whatever substance -it is you're talking about, it will be uniformly lethal. I just don't know what that is. We had Dr. Evans in here yesterday. He is a toxicologist. He testified that he did not believe that there is a uniformly lethal level with regard to methamphetamine or Ecstasy. Do you know Dr. Evans? ERIC G. SMEAD, RPR COPY not. You indicated you knew Dr. Dawes? I do know Dr. Dawes. -How do you know Dr. Dawes? He is part of my research team. Have you and Dr. Dawes testified as experts before on behalf of Have not. What about Dr. Kroll, do you know Dr. Kroll? I know Dr. Kroll. You and Dr. Kroll have testified before on behalf I just said I have not, but I'm not sure about "Dr. Kroll. You have not testified with Dr. Kroll in this case involving TASER International corporation? Not in court, no, no. I mean I have been deposed before. I'm not sure, but I think that's the same. How many times have you been deposed in cases involving TASER International corporation? Two, I believe. Twice? Twice. And how many times have you testified on behalf ERIC G. SMEAD, RPR COPY TASER International corporation? 'This would be number one right here. THE COURT: Is there somewhere in there you mentioned another case and maybe you made a report, is that what you did? THE WITNESS: I have made other reports. I have been deposed. THE COURT: On pending cases? THE WITNESS: Yes, but as far as courtroom testimony THE COURT: Got you. MR. MALEY: Did you provide a report in the Lomax case, Lomax vs. Las Vegas Police Department? I did, yes. The hypotheses that you had proposed on which you base your research model has been directed towards showing that the TASER electronic control device is safe, is that fair so say, that's your hypothesis? That would actually be the null hypothesis. That would be a what? A null hypothesis. Could you explain that to me? Sure. When you approach a research project or a ERIC G. SMEAD, RPR OPY 392 question, you're always interested in finding out what the effect is or what the effect isn't; and what the effect isn't would be the null, and so no, I don't think that that's I don't think that's how we approach our projects at all. But is it fair to say when you say the study involving the use of TASER electronic control device is a null hypothesis, you're starting off with the hypothesis that there would be no effect? No, I believe that's what you said. I think you said that I'm starting off with the TASER being safe; that would be the null hypothesis. What was the hypothesis then you start off with, Doctor? I'm sorry. It depends on what study you're talking about. We are looking for effect in various combinations, so if we are, for instance, studying intoxication, we are looking for what the effect is of TASER in combination with alcohol. I presume, Doctor, is it fair to say you demonstrated physiological changes in your experimental THE REPORTER: Excuse me, Mr. ERIC G. SMEAD, RPR COPY 393 Manley. -BY MR. MANLEY: I'm sorry. Doctor, the study that you referenced, have you demonstrated any physiologic changes in your experimental efforts associated with TASER deployment regardless of whether you characterize these physiological changes as quote/unquote clinically insignificant? THE COURT: Excuse me a second. Did you get that, Eric? THE REPORTER: Yes. 'If you read through our reports, what we report, we generally report a clinical significance as well as a statistical significance, and that's how things have to go through the peer review process. There is a difference between those two. BY MR. MANLEY: Okay. And you would agree in your studies that the successful deployment X26 appear to cause pain in the individuals? Yes, that's correct. And you would agree that the successful deployment of the TASER X26 appear to cause immediate muscle contraction? ERIC G. SMEAD, RPR 394 Again, it depends on how it?s applied. Some of the dry stun studies, no. What about the probe studies? The probe studies in general, yes, depending on where you put them, yes. Is it fair to say it seems to me, reading of the some of the literature, that the area of the chest near the heart is an area that users or law enforcement officers are adyised to try to avoid. I'm not aware of that. 11m not aware of something that says avoid the heart. Is there any concern that you have with regard to the distance between probe location and heart? I'm not sure I understand the question. Sure. Is there is there anything in your .studies that indicate that there is a greater likelihood of negative physiological effect when distance between the probes and the heart is shorter rather than longer? Well, in fact we are studying that right now, but we have not found we have actually put probes right over the heart in humans and have found that not to be the case. But you're continuing to study that right now, you said? ERIC G. SMEAD, RPR COPY 395 Well, it's going to be actually it?s that -portion of the project is over. That?s going to be reported next month at a conference. Okay. So as we stand here today there is no study out there that allows us to indicate that distance between probe and heart is can be a problem? Well, there is a study that's in my lab that tells me that it's not. I mean is it publicly available yet? Not till next month. Apparently it is for right now, you just lindicated? You?re asking me about that. In the Holcomb case you presumed that the initial you state that you presume that the initial following discharge that there wasn't an initial following discharge. Do you know for certainty what that would have been in Holcomb? I can't say with certainty, no. You referred to George Nichols in your report on Holcomb. Mr. Nichols, is it fair to say, was the expert for the Plaintiffs who also opined that the successful deployment of the TASER electronic control device did contribute to the death of Mr. ERIC G. SMEAD, RPR COPY 396 Holcomb; is that correct? MR. MALEY: Your Honor, I just impose an objection. His report was not allowed by federal court in that case. THE COURT: Well, is that person going to testify? MR. MALEY: No, he is not a witness, Your Honor. MR. MANLEY: Dr. Nichols is referenced in his expert report. THE COURT: Dr. Nichols? MR. MANLEY: Dr. Nichols. I just have a couple of questions, and I will move on. THE COURT: I'm not quite sure why you're asking him about this. Is it something MR. MANLEY: He was another doctor who had opined that. THE COURT: But this is not this doctor's opinion. You want him to say what another doctor said? MR. MANLEY: I will move on, Your Honor. THE COURT: Well, anyway. ERIC G. SMEAD, RPR COPY 397 MR. MANLEY: He just referenced it. THE COURT: If you took too long I?m sorry. MR. MANLEY: That's okay. THE COURT: I was so the record is clear, I will sustain the objection. I?m just trying to give you an opportunity. MR. MANLEY: Sure, I THE COURT: Some people accuse me of thinking out loud. That's one problem I have, I guess. I should not think at all. I should just say up or down. Okay. That got you off kilter anyway, didn't it? MR. MANLEY: No, that's fine. I'm almost done. THE COURT: That's encouraging. MR. MANLEY: I am concluded. Thank you, Judge. THE COURT: Okay. Any redirect? MR. Your Honor, briefly, first move to admit Exhibit 99, his full report that I admitted to move into admission previously. THE COURT: Okay, you have no ERIC G. SMEAD, RPR COPY 398 objection, I guess? MR. MANLEY: NO. THE COURT: Okay. I mean I guess at the end of this you're going to have a whole I guess most of the stuff is all going in, from what I gather? MR. MALEY: That's correct, Your Honor. Yes. THE COURT: I'm not going to hold you up on some technical thing as long as you get it altogether. MR. MALEY: Thanks, Judge. REDIRECT EXAMINATION BY MR. MALEY: Doctor, briefly, the reports you have gone ?through and were discussing and Mr. Manley was asking a few questions about it, you mention peer reviewed, and this current one is then going to go to conference, the materials that you've engaged in these studies go through a peer review process; is that correct? That's correct. And in the medical and scientific community can you briefly explain what that is? ERIC G. SMEAD, RPR COPY 399 Basically what that is is it's use of you submit your work in front of your peers, and they reevaluate it for things such as scientific merit, whether it's new or novel; important information, whether there is bias or anything like that that's come out in there; whether your conclusions and your science is valid, and they make recommendations for either changes or Isuggestions or something like that. And once you have made those changes to their satisfaction, it is considered approved by the peer review process, and it's okay for publication as scientific literature. Is that a form of quality control within the scientific community? Yes. The TASER electronic control devices, do you believe them, based on your research, to be safe for use on humans? So far we have not found that to be anything else other than. MR. No further questions. Thank you, Dr. Ho. THE COURT: I have a couple of questions. You know, I'm not my ERIC G. SMEAD, RPR COPY 400 question is not necessarily going to draw to what your report shows, what your research showed. I was curious, though, as to some of the basis. Now, these people that you had as volunteers, at least I think you said, what was it, 300, something like that, 375 I think said. I mean, how do you select these people? THE WITNESS: You know, it's actually a way that's worked out well for us. We our research group goes to instructional courses that TASER is teaching, and we simply are there and say anybody who would like to volunteer for one of our studies is free to do so. THE COURT: You mean learning how to use the devices? THE WITNESS: That's correct. THE But I mean, don't you have some questions about their medical health? THE WITNESS: We do make them fill out a medical questionnaire which is why when Mr. Manley asked me do they appear to ERIC G. SMEAD, RPR healthy, yes, they appear to be healthy. THE COURT: I'm not sure what they appear to be. THE WITNESS: Well, okay. That's what I was getting to is I can tell you what their medical history are, and some are indeed not healthy. THE COURT: Well, I mean would you would you have a volunteer go through it if the person has had, for example, previous heart surgery? THE WITNESS: We have had that, yes. THE COURT: Have you? THE WITNESS: Yes. THE COURT: And if you knew that the person's prone to heart attacks at that point, would you use him or her? THE WITNESS: Well, the interesting thing about heart attacks is we're not sure who is ever prone to one. I can't look THE COURT: What a good point. THE WITNESS: -- predict that. THE At risk? ERIC G. SMEAD, COPY 402 THE WITNESS: At risk, yes. I will admit we have excluded a couple of people based on them being on blood thinning medication, and we're afraid that what we're going to ask them to do is make them fall and start bleeding, but from the standpoint of them coming -1 THE COURT: You mean like blood thinner or something like that? THE WITNESS: Yes, exactly. But from them coming to class, the classes that they are at in general are suggested that they are going to receive a TASER exposure. Regardless if I'm there or not, we are simply asking them for permission to study their physiologic parameters before, during, and after their TASER exposure. I'm not controlling the exposure. THE But you understand and correct me, folks, if I'm misstating it, but if I understand what the medical examiner came up with is that she is not saying that the TASER caused the death. I think all three cases she is saying it may be a contributing factor. Did you get ERIC G. SMEAD, RPR COPY 403 that? THE WITNESS: That's the way I understand it. THE Can't you see it's a fact situation where the TASER discharge from a TASER could be a contributing factor? THE WITNESS: Oh, absolutely. And I have seen cases under such as that. For instance, you know, I will give you one. You know, somebody who has at a great height, and you use a TASER on them, and they fall, and they fall off a great height and become injured, I would think that is certainly a contributing factor. But in the cases that we have looked at here, these three, with regard to what their physiology was and what their behavior and all of this is well described in the medical literature, there are numerous cases that occur just like them every year where TASER is not involved at all; the departments don't have a TASER. So if you're looking at that from a, you know, a standpoint of what role does ERIC G. SMEAD, RPR 404 TASER play in this, based on what's available with the scientific literature, my answer has to be it doesn't play a role here. THE The one that comes to my mind is the one in the horse pasture. Is this Holcomb? MR. MANLEY: Correct. MR. MALEY: Correct, Richard Holcomb. THE COURT: Apparently it wasn't you remember the facts? THE WITNESS: I remember most of them, yes. THE Apparently a fairly short period of time after the probe that he collapsed and I guess died, do you remember that? THE WITNESS: I do remember that. THE COURT: And would you say if he would have immediately collapsed and died, the probe -- that he fell over and died, would you have a different opinion about that? THE WITNESS: You know, I may, but ERIC G. SMEAD, RPR 405 given, you know, you know THE COURT: I mean here it was fairly clean cut in that one. THE WITNESS: Well, except that of any of the cases, that's one of the most intriguing because that's the one where there was a cardiac defibrillator on the scene very quickly. I mean, it was right there. They were able to put this on Mr. Holcomb and figure out what he was in. If you apply electricity to somebody, we know in medical science that the will be one of two things, and he was in neither, and so that actually according to based on this defibrillator that they had on scene, so that?s one of the pieces of the puzzle that I took into account in making that report. THE COURT: Maybe we haven?t had testimony about that yet. Have we? MR. MALEY: Not in open court yet, Your Honor. THE WITNESS: Sorry, maybe I wasn't supposed ?w ERIC G. SMEAD, RPR COPY 406 THE COURT: That's okay. But you know from reading the reports. What's the significance of that? THE WITNESS: Well, the significance of that tells me if we know that application of electricity will make your heart do a certain thing, and in Mr. Holcomb's case application of a TASER did not make his heart do that THE COURT: How do we know that? THE WITNESS: Because the cardiac defibrillator was there at the scene and applied to him in very rapid fashion. THE COURT: I thought he had passed by that point. THE WITNESS: Well, clinically he was unconscious or unresponsive, but I don't think death had been declared at that point. In fact the officers were attempting to resuscitate him with the defibrillator. THE COURT: The other question I had that I thought Mr. Manley asked, I mean, I assume the TASER gives your school or your hospital, rather, a grant? ERIC G. SMEAD, RPR COPY 407 THE WITNESS: In some cases they have; yes, in order to_do certain research, yes. THE COURT: Well, they don't give them a general grant, THE WITNESS: No, it is per the proposed project. THE COURT: Okay. And how many times have they done that? THE WITNESS: One. THE COURT: Just one. And how much was that for? THE WITNESS: Well, currently we are in the process of using it. It is for about $100,000, and it?s this methamphetamine sheet that we are doing. THE But you must have had grants before you got that one, didn't you? THE WITNESS: I have had other grants from other folks other than TASER, if that?s what you're asking. THE COURT: I'm not sure what I'm asking. The portion that you just testified to have nothing to do with what you're talking about. I mean did they give ERIC G. SMEAD, RPR COPY 408 you grants for those to do those reports, the ones you testified to? THE WITNESS: So am I getting do I get a grant to generate a report? THE COURT: In the past? THE WITNESS: No, I do not. THE How is the money generated then? THE WITNESS: When I THE COURT: There must be some method that TASER pays you, the hospital, somebody. THE WITNESS: Yes. When I'm asked to write a report on something such as this case, this is done outside my employer. THE COURT: I understand. I?m not talking about your report as an expert I'm sorry, maybe I'm not clear in the three instances where somebody died. I'm talking about the reports that you spent an hour or so testifying about. THE WITNESS: Oh, okay. So how do I receive THE COURT: Studies, I should use the word studies. ERIC G. SMEAD, RPR COPY 409 THE WITNESS: So here is how my practice works: I'm looked as a full?time employee of my hospital group. About 60 percent of my time is spent seeing patients, and about 20 percent of my time is spent administrative. As a medical director I work for some EMS services and for some police departments. And then 20 percent of my time is in my research arena or my lab, and so all of that is encompassed under my job expectation of my primary employer. So my employer actually says, you know, Jeff, we want you to go to the lab and spend this much time studying these studies these. THE COURT: I got all that. THE WITNESS: So that's how I get paid everyday, if that?s your question. THE COURT: I assumed, maybe incorrectly, that TASER pays the money to the hospital or some other vehicle to help set off your time, your 20 percent time working on these studies. THE WITNESS: There are occasions where TASER will cover like, for instance, ERIC G. SMEAD, RPR COPY need an extra day in the lab, they will cover to they pay to have somebody cover my shift, but as far as a general grant that says we are going to do this THE COURT: Or donations, none of that? THE WITNESS: Well, you're giving me some ideas. As of right now, no. THE That's something to consider. All right. But you can't say to this court that you can duplicate these circumstances and make a conclusion on them? THE WITNESS: What I can -- THE COURT: Like I want to experiment with the gun, we take it to the firing range or someplace and fire the gun and we can tell something from that, right? THE WITNESS: Sure. And that?s exactly what we have done in our studies. THE COURT: But you haven't at least if I gather right, you haven't had the same circumstance with the drug use? THE WITNESS: What I would say is we have not had the exact same ERIC G. SMEAD, RPR COPY 411 circumstances described in all of these cases, but we have a very large preponderance of studies that are out there that are all pointing in the same direction, and so with that I'm pretty confident in the conclusions that we're coming to. Do I have every answer that is out there or have we answered every question that's answerable? No. And that's actually good because that's why I get to keep going to work everyday and doing the work that I do. THE COURT: Find more things for you to study. THE WITNESS: Absolutely. But we're now into this for four or five years, and we have done a boatload of work and come to a lot of conclusions on this. THE COURT: You can probably keep it going for a few more years. THE WITNESS: And then some. THE COURT: Okay. No more questions. Anything else? MR. MALEY: No, Judge, thank you. ERIC G. SMEAD, RPR COPY 412 MR. MANLEYE No, thank you. THE COURT: Thank you for your time. THE WITNESS: Thank you. (The witness was excused.) MR. MALEY: Take a break? Would this be a convenient time. THE COURT: I assume we still have witnesses. MR. MALEY: We do, Your Honor. THE Let?s make 15 minutes. Let's say 10 minutes to 11. MR. MALEY: Thank you. (A recess was had.) THE COURT: We are ready to proceed? Let's go. MR. MALEY: Yes, Your Honor. Plaintiff calls Dr. Lisa Kohler. THE COURT: Doctor, raise your right hand. LISA KOHLER, M.D. a Defendant, herein called on behalf of the Plaintiff as on cross?examination, being first duly sworn as provided by law, was examined and ERIC G. SMEAD, RPR COPY 413 testified as follows: THE COURT: You might have a different place to put that tag. THE WITNESS: Well, I hang it off there somewhere so I know I have got it. THE COURT: Okay. State your name for the record. THE WITNESS: Dr. Lisa Kohler, K?o-h?l-e?r. THE COURT: I thought you say you were calling her tomorrow? You're going MR. MANLEY: John Maley is calling her right now on cross. CROSS-EXAMINATION BY MR. MALEY: Good morning, Dr. Kohler. How are you? Good morning. Doctor, as the Chief Medical Examiner of Summit County you oversee the entire office; is that correct? That?s correct, yes. And while you still do somewhat of the autopsies yourself, you have other deputy medical examiners who do autopsies individually, correct? That's correct, yes. ERIC G. SMEAD, RPR 414 You don't do every autopsy in every Summit County death, correct? Correct. And in these three matters here, Mr. Hyde, Holcomb, and McCullaugh, you did not perform the autopsies, correct? That's correct. -And you did not perform or prepare the autopsy reports, correct? Correct. Which is standard practice that you can't do all of them, so your deputy does many of them? That is correct, yes. You have other administrative obligations as well, correct? Yes. And you were present during the Hyde, Holcomb, [and McCullaugh autopsies, correct, doing the autopsies themselves? Could you restate that, please? Certainly. The autopsies-themselves that were done on Mr. Holcomb Hyde, Holcomb, and McCullaugh, you did not perform the autopsies, true? I did not perform them, that's correct. ERIC G. SMEAD, RPR 415 'And you did not make any changes to the report of autopsy that was prepared by Dr. Sterbenz or Dean, correct? I did review the draft reports. I don't recall at this time any changes I may have made in any of those at that time. And sequentially we have the Hyde, Holcomb, and McCullaugh death, correct? That's correct. Dr. Sterbenz did the autopsy and the report on the Hyde death, correct? Yes, that's correct. And then Dr. Dean did the Holcomb autopsy and report? Yes. And then Dr. Sterbenz did the McCullaugh autopsy and report; is that correct? That's correct. And you didn't duplicate the work that they had ?already done; is that correct? That's correct. And you would expect Dr. Dean, for instance, in the Holcomb matter to be more knowledgeable about the Dean autopsy than you since she performed it, correct? ERIC G. SMEAD, RPR 416 Yes. Let's talk a little bit about your background, Doctor. You're a forensic pathologist, correct? That's correct. And you were board certified is it ten years ago? Yes. Did you have any training in electrical engineering, correct? That's correct. You are not a cardiologist? Correct. You are not an electrophysiologist? That's correct. You have no training in cardiology, correct? Aside from basic training during medical school, no, I do not. You have no training in electrophysiology, correct? Correct. At the time of these autopsy reports you did not consider yourself to be an expert on TASER electronic control devices, correct? Correct. You don't consider yourself an expert on ERIC G. SMEAD, RPR COPY 417 electronic control devices today, correct? That?s correct. You're not a toxicologist? No. You have never published any manuscripts, articles, treatises, or chapters or volumes regarding sudden death, correct? That's correct. Or on the subject of electrophysiology? Correct. Or.on cardiology? Correct. Or on electronic control devices? That's correct. Or on excited delirium? You are correct. And you do not know the electrical characteristics of a TASER electronic control device, correct? I do not know the physics behind it or the medhanisms, no. You don't know the amperage of an X26 TASER .discharge, correct? Off the top of my head, no, although I have available for review. ERIC G. SMEAD, RPR COPY 418 And you don't know the frequency or the wave forms, correct? Again, I have literature available, but I do not maintain that in my head. And you don't know the voltage that actually enters the human being from application of an X26 whether in probe mode or drive stun mode, correct? That's correct. You agree that high voltage in and of itself is not dangerous to the human body? MR. MANLEY: Objection. THE Wait a minute. You're objecting? MR. MANLEY: Yes. THE COURT: Overruled. If she can answer. Could you repeat? MR. MANLEY: I will rephrase it. And actually, Doctor, to be fair, you don't know whether high voltage in and of it itself is dangerous to the human body? I'm not familiar enough with the engineering aspects of it to state definitively. And you don't have a scientific, medical, or ERIC G. SMEAD, RPR COPY 419 engineering basis to say one way or the other, correct? Correct. You don't have any scientific, medical, or engineering evidence that TASER electronic control devices increase body temperature in humans, correct? I believe there are case reports out there indicating that, but I can't cite a particular one. And in your deposition you were unable to provide any information in response to that question, correct? ?That's correct, yes. And you don't hold the opinion that application of the TASER device to Mr. Hyde caused him to have a high fever, correct? No, I have not stated that. Now, in connection with Mr. Holcomb's demise your office issued a press release, correct? Correct, that's true. The press release had some language that was a little bit different than the autopsy report, do -you agree? Yes. It's geared toward educating the public as ERIC G. SMEAD, COPY what our findings are, so we tend to go away from the medical terminology and use lay terms. And that press release stated, quote, In summary Mr. Holcomb died from the effects of methamphetamine and Ecstasy which sensitized his heart to the effects of the TASER equipment that was required to subdue him. Do you recall that statement? That?s sounds familiar, yes. And you don't hold yourself out as an expert on drugs and they're sensitizing or desensitizing the heart, correct? On that specific aspect, no, I do not. And you have never researched methamphetamine and Ecstasy and their effect of sensitizing or desensitizing the heart to the effects of electronic control devices, correct? Although I have not done individual research, my basic medical training allows me to understand that the use of intoxicating drugs such as stimulants like you have mentioned can have negative cardiac effects. And are you aware that there has been studies that show that cocaine, for instance, can actually increase the fibrillation threshold in ERIC G. SMEAD, RPR COPY 421 hearts? That study has a flaw, as I see it, in that the anesthesia used is Isoflurane which is known to .have cardioprotective effects. Because of that issue I can't say whether there is truly a protective effect based on that study. You have never published on the subject of methamphetamine or Ecstasy and the sensitizing of those drugs on the heart, correct? No, I have not. Now, you don't hold yourself out as an expert in any Specialty dealing with the physiologic effects of a TASER deployment on the human body, -correct? Could you restate that, please? Yes. You do not hold yourself out and as an expert in any specialty dealing with the physiologic effects of the TASER deployment on the human body, correct? Correct. And prior to issuance of the Holcomb report, for instance, you yourself did not conduct any independent medical research, correct? ?We do not conduct independent medical research prior to certifying causes of death as a manner ERIC G. SMEAD, RPR COPY practice. And so no independent research occurred before the Hyde, Holcomb, or McCullaugh autopsy reports, correct? I Nor with any other cases that we certify, that's correct. Now, you remember, do you not, that you were contacted after one of these three deaths by a physician from Johns Hopkins Hospital - Yes. Dr. Hugh Calkins, an electrophysiologist? Yes. I don't recall whether he contacted me or if it was recommended that I contact him. Yes, there was a conversation. All right. And you did not consult with any cardiologist or electrophysiologist on any of the three autopsy reports in these matters, correct? A formal consultation, no. Now, let's talk a little bit about the drugs on 'board in several of these matters. You?re aware that methamphetamine is a stimulant? Yes. You understand it to be potentially fatal? Yes. And you understand that the consequences of ERIC G. SMEAD, RPR COPY 423 1 methamphetamine on a human can include irregular . 2 heartbeat? 3 A. Yes. 4 Q. Increased blood pressure? 5 A. 'Yes. 6 Q. Convulsions? 7 A. Possibly, yes. 8 Q. Death? 9 A. Yes. 10 Q. You're aware that there have been numerous deaths 11 in this country from methamphetamine? 12 A. Yes. . 13 Q. And you're aware there has been numerous deaths 14 in this country from Ecstasy? 15 A. Yes, there are numerous drug deaths, and there is 16 numerous intoxications at varying level of drug 17 concentration. 18 Q. And you're aware that among healthy teenagers 19 there have been deaths from Ecstasy and 20 methamphetamine? 21 A. Yes, there are. 22 Q. Now, your office has actually rendered a number 23 of autopsy reports independent of any TASER . 24 lapplications involving methamphetamine, 25 correct ERIC G. SMEAD, RPR COPY 424 That's correct. where methamphetamine has been found on its ?own to be the cause of death, correct? Yes. When there are no other intervening factors, it has been cited as the cause of death. And your office has rendered similar reports finding Ecstasy to be the cause of death in other matters that did not involve TASER applications, correct? Yes, there have been other situations. And cocaine as well? Correct, yes. Now, you believe that Mr. Holcomb's drug use was within the hours preceding his death, correct? That's correct, yes. You believe that to be true with Mr. Hyde as well, correct? Yes. Oxycodone can be fatal, correct? Yes, it can be. And that was in Mr. Hyde as well? Yes. It was at a level that is not uniformly lethal, and it is below the levels that are normally reported as lethal when combined with other drugs, but it can be. ERIC G. SMEAD, RPR COPY 425 And the Oxycodone was combined with methamphetamine in Mr. Hyde's situation, correct? Yes. Let's talk a little bit about excited delirium. We have had a little bit of testimony on that lfrom Dr. Evans and Dr. Hoffman. That's a term that you know to be an accepted forensic pathology term, correct? I wouldn?t say it's accepted. There is some dispute over it, but there are many forensic pathologists that do opine that excited delirium exists. And you recall in your deposition testimony I asked you that question and you agreed that it was an accepted forensic pathology term? -Yes. It's interchangeable from your perspective with the term drug Yes. And you believe Mr. Holcomb and Mr. Hyde were in drug?induced correct? Yes, I would agree with that. And you chose your office chose not to use the phrase excited delirium because there are other causes of excited delirium beyond just drug ERIC G. SMEAD, RPR COPY 426 intoxication, correct? Yes. We are trying to be more specific as to the ?etiology of the state of the individual. So excited delirium could be a larger umbrella, within it there is drug Yes. And there is illness? Yes. The drug?induced that Mr. Hyde and Mr. Holcomb were suffering from was not caused in your opinion by an electronic control device, correct? That's correct, yes. You believe that to have been caused, for instance, in Mr. Holcomb by the methamphetamine and the Ecstasy? Yes. The National Association of Medical Examiners, you're a member of that organization? Yes, I am. And they have a guide on manner of death lclassification, correct? They do. And that guide states that deaths due to the acute effects of a drug or poison such as alcohol ERIC G. SMEAD, RPR COPY 427 poisoning, excited delirium from acute cocaine intoxication, have traditionally been classified as accident, do you agree? When dealing with a situation where there are no additional forces, yes, that would be _traditionally considered an accident; however, they are not exclusive, and it's not an exclusive diagnosis if there are additional forces applied to that person that would go beyond the drug intoxication, such as if the person were shot with a weapon; then you could go on to homicide because the homicidal manner of death takes greater precedence over the accidental manner of death. But for acute illicit drug intoxication, -traditionally if that is the cause of death by itself, that's been determined by the NAME guidelines, to be accident, correct? Generally that would be true. All right. You recall a cocaine death that occurred during police restraint involving an individual named Solomon Dandridge? Yes, I'm familiar with the name. Your office determined that cause of death to be excited delirium from cocaine intoxication, ERIC G. SMEAD, RPR COPY 428 correct? That does sound correct, yes. Now, if someone is dying of excited delirium, defibrillation is usually ineffective, correct? Usually but not always. And a defibrillator Dr} Ho was mentioning this. Defibrillators in the last 20, 25 years have become common, for instance, implantable defibrillators, correct? Yes. Persons that are prone to can have a lsmall defibrillator implant in their chest; is that correct? Yes, that's true. And you're aware that, for instance, Dr. Kroll, one of our expert witnesses in this case, has spent many years designing those devices, correct? That?s my understanding, yes. And there are also now, and probably have them in this building, AEDs, which are automatic or -Automated Electronic Defibrillators; is that correct? Yes, that's correct. And these are devices that are in office ERIC G. SMEAD, RPR COPY 429 buildings or sports fields can be used on someone who might need that resuscitation, correct? That is correct, yes. All right. And those defibrillators when they?re applied to a human, the computer with the leads tracks the of the person?s heart, correct? .Yes, they do. Now, the literature on excited delirium holds that and concludes that defibrillation is usually ineffective in excited delirium deaths, do you agree? It is usually, but not always. And you don't have any basis to dispute that literature yourself, correct? No, I do not. Now let's turn for a minute to Mr. Vince Di Maio. 'Are you familiar with Dr. Di Maio? Yes, I am. And do you know him to be a forensic pathologist in Texas? Yes, he is. You have met him previously? Yes, I have. All right. You understand him to be well regarded in the forensic pathology field? ERIC G. SMEAD, COPY know that he is well known. I do not know how he is regarded in the field. I asked you that question in your deposition, and you agreed he was well regarded in the pathology field. At the time I answered at the depo, yes. Since that time I have had further discussions with individuals that would call that into question. Your office has several of his texts, correct? Yes, we do. And your office does not spend taxpayer moneys on unreliable texts, correct? bWe would not have; however, I don't know which of those would have been bought with taxpayer money and which of those are parts of private collections. Many of those books were purchased by my predecessor with his own funds, so I can't say if taxpayer money was spent. Dr. Di Maio has authored several texts in the area of forensic pathology, correct? Yes. Including texts on excited delirium? Yes. Your office consulted Dr. Di Maio's text in conjunction with doing the Holcomb autopsy ERIC G. SMEAD, RPR COPY 431 report, correct? I believe that was correct, yes. And that was done for support for the report, correct? That was done to get additional information on the report. Doctor, let's turn to some other questions. ?You're aware that sometimes people die in police custody and it's not because of anything that anyone did? That is correct. In?custody deaths have occurred throughout history, correct? Yes. Long before electronic control devices powered by two three?volt photocells, correct? That is correct. 'Do you know Dr. Warner Spitz? Yes. He is a forensic pathologist Yes. in Detroit? That is correct. All right. He is he a reputable forensic pathologist? ERIC G. SMEAD, RPR COPY know he is well known. I can't say specifically what his reputation would be. Do you have his text in your office? _Yes, I do. What is it entitled? Medical/Legal Investigations of Death. He is the editor. Doctor, are you aware that just last week we were for the first time provided from your office through your counsel with the medical examiner's file in the McCullaugh death? I don't know when that was actually produced. I will represent to you as an officer of the -court that it came last week, and Mr. Manley can correct me if I am wrong on that. Are you familiar with that file? I'm familiar with that exists in our office, yes. And your office has record retention requirements to contain and maintain those files, correct? Yes, we do. And that file contains a report from Dr. Warner Spitz, correct, regarding the McCullaugh death? That I do not know for certain. I have not ?looked through it thoroughly at this time. And Dr. Spitz's report concluded that ERIC G. SMEAD, RPR COPY 433 Dr. McCullaugh died of natural causes unrelated to the police, correct? That may be true. I have not read his report recently to recall the content. Your office hasn?t changed the McCullaugh autopsy report or death certificate at any point in time, has it? No, it has not. 'Doctor, let's talk a little bit about preparing autopsy reports. Do you agree that it is important to use medical and scientific principles in preparing autopsy reports? Yes, it is. Let's turn to the subject of blood, bleeding, and a term called exsanguination. Yes. Is that the medical terminology for bleeding to death? Yes, that is correct. Now, Mr. Hyde had a significant lacerated wrist, correct? Yes, he did have a laceration. Has your office concluded before in an autopsy report that a decedent bled to death? Yes. In situations where we can demonstrate that ERIC G. SMEAD, RPR COPY 434 there is a significant loss of blood and in the autopsy we see that the person is pale and there is very little blood remaining in the body, based on the circumstances in our findings we can rule exsanguination, and we have ruled that way. 'Humans can die from bleeding to death, you agree? Yes. And humans can die from the radial artery being severed, correct? They can, although it's a long process, requires some persistence. Have you ever seen a severed radial artery? Yes. And have you ever reached conclusions in autopsy report that the decedent attempted suicide? Yes. And have you ever found the decedent has committed suicide? Yes. On many occasions? Yes. And you have reached that conclusion where someone severed their radial artery, correct? I believe so, yes. Now, when someone bleeds to death, you don't know ERIC G. SMEAD, RPR 435 what the physiologic mechanism of death is, correct? I don't know the exact mechanism of that person; however, in the process of bleeding to death as you lose a significant quantity of your blood, it causes the heart to fail. And you don't know whether the person would go into ventricular fibrillation, for instance, correct? 'That's correct. You don't know whether they go into pulseless electrical activity, correct? That is correct. Now, in the Hyde case you don't know whether there was any attempt made by your office to measure the amount of blood loss, correct? I know that we did not measure the amount of blood loss because there is no scientific method to do so. IAnd you did not do anything to determine the amount of blood that was lost yourself, correct? As I just stated, correct. You do know do you know whether Mr. Hyde had prior to death lost a significant volume of blood? ERIC G. SMEAD, RPR COPY had lost blood. I do not know what your quantification is for significant. There was blood loss, and it was referenced on the death certificate. Doctor, have you seen Exhibit 3 during the trial, the photographs of Dennis Hyde from the basement? Yes, I saw that at the time of the trial; and I have also seen it previously in our office. All right. Did you see that prior to the autopsy report? Yes. Would you agree with me that there is significant blood on Mr. Hyde's body in that picture? I would say that there is blood staining on the body. I'm not going to quantify it as significant. You're not an expert on how much time would be required for someone to exsanguinate from transection of the radial artery, correct? It would depend upon so many factors it's not possible to state how long that would take in a particular person. But you're not an expert on that subject, correct? _That's correct. ERIC G. SMEAD, RPR COPY Dr. Sterbenz, correct? No. Correct statement? Correct. Would you agree that a grayish, ashy color to the skin indicates that a person is losing blood? Quite possibly, yes. By the way, Doctor, your office has not concluded in any cases that metabolic acidosis was the .cause of death, correct? That would be a mechanism of death rather than a cause of death, so it would be unlikely to certify a death as such. And you have been unable to make a diagnosis of metabolic acidosis postmortem, correct? Correct. Not just in these three cases but in any case, correct? Correct. "Now, let's talk a little bit about mental health. Can a person's prior mental health history be relevant in determining cause of death? Yes, it can. And if a person has a previous history, they can be predisposed to certain ERIC G. SMEAD, RPR COPY 438 conditions that might affect their health, correct? Yes, that is correct. Including cardiac correct? Correct. Let's talk a little bit about ventricular fibrillation. In the electrocution electrocution cases well, first of all, you have had some cases in your office involving electrocution, correct? Yes, high voltage and low voltage. And the electrocution cases to your understanding that when someone is electrocuted and dies, they usually go into ventricular fibrillation, correct? That is a frequent happening, yes, yes. don't know how long after ventricular fibrillation someone would die, correct? That?s correct. You don't know whether it would be seconds, hours, or days, correct? Correct. You don't have the background, education, training, or experience to render an opinion on that subject, do you? ERIC G. SMEAD, RPR COPY would depend upon the circumstances to _determine how long that happened. I can't say in general about that of time. And in your deposition previously you told me under oath that you didn't have the background, education, training, or ekperience to render an opinion on that subject, correct? I could not render it as a general basis, that is correct. Do you agree that electricity does not build up in the body, correct? -Yes. Now, you were present when Dr. Dean testified back in the Holcomb matter, correct, in deposition? At which Couple years back, the first deposition? At the first deposition in the wrongful death suit, no, I was not present. You?re aware that Dr. Dean testified in the Holcomb matter that MR. MANLEY: Is this the first deposition? MR. MALEY: Yes, I apologize. BY MR. MALEY: ERIC G. SMEAD, RPR COPY think you?re correct. I apologize. I misspoke. In the let me move forward. You don't have any scientific, medical, or engineering proof to support an opinion that application of a TASER device contributed to Mr. Holcomb's death, correct? Proof, no. But I do have scientific evidence and information that would suggest that it may have, yes. With respect to Mr. Hyde, your office offers the opinion that the TASER contributed to his death; is that correct? Correct. You don't know how the TASER device possibly contributed to Mr. Hyde's death, correct? .I don't know the exact mechanism that was elicited by the TASER weapon; however, I do have multiple ways in which the TASER could have contributed, and we do believe that it did. But you have testified previously under oath, did you not, that you did not know how the TASER contributed to his death, correct? I do not know the exact mechanism, that is correct. And you cannot state within reasonable degree of ERIC G. SMEAD, RPR COPY 441 _medical certainty how a TASER device might have contributed to Mr. Hyde's death? Again, I can't say specifically which mechanism was involved. Now, time in terms of an even such as a TASER application occurring sometime prior to another event occurring, in your assessment of these three deaths the time or temporal proximity is a faCtor that you rely on, correct? Yes, we have evaluated time factor. -And beyond temporal proximity there is no other medical or engineering or scientific evidence of an electronic control device causing Mr. Hyde?s death that you relied upon, correct? The temporal association is a large portion; however, there are basic forensic tenants that we have relied upon to show that they can have an effect. Direct your attention, if you could, Doctor, to your deposition of July 18th, 2006 that's in that Inotebook, if you could turn to page 89 and 90. Yes. And I asked you at the bottom of page 89, The Hyde autopsy report concluded that TASER electronic control device caused Mr. Hyde's ERIC G. SMEAD, RPR COPY 442 death? And you said: Yes, it was in combination with the acute methamphetamine intoxication. My next question: Again, was the temporal sequence of TASER application followed within some short period of time of Mr. Hyde going into arrest that led your office to conclude the electronic control device was the cause of death .in the Hyde situation? Answer: That is a portion of this decision. The next question I ask you: And there is no other medical, engineering, or scientific evidence of electronic control device causing Mr. Hyde's death, correct? What was your answer? I said correct. There Thank you. at the time I did not have the reports in front of me to refer to; however, we did have, as mentioned, basic forensic tenants that we used to make our correlation. And did I read that testimony and question accurately? You did, yes. Now, you're aware that Dr. Dean has testified that she could not say whether to any degree of ERIC G. SMEAD, RPR COPY 443 'reasonable certainty the TASER device contributed to Mr. Holcomb's death to as little as percent. Are you aware of that? MR. I'm going to object. Your Honor, the figure didn't counsel is suggesting that the figure came from Ms. Dean. It was a figure suggested by Mr. Maley at deposition. MR. MALEY: Which she admitted to, Your Honor. You?re going to hear that from her under oath. That will be tied up. THE COURT: Overruled. That was a statement because we cannot know the exact numerical contribution of an individual disease process or injury towards death. We do not quantify it. BY MR. MALEY: And you don't have any basis to dispute Dr. Dean's testimony about the .00000001 percent correct? As I just stated, that is correct. Thank you, Doctor. Let's talk about the subject of options that are available to medical examiners and coroners in issuing cause and manner of death determinations. ERIC G. SMEAD, RPR COPY 444 One option for the medical examiner is to state undetermined, correct? That is one of the available, yes. And you have had occasions where you have been unable to determine cause of death, correct? That's a different question, but yes, there have been times that I have determined the cause of death would be listed as undetermined. And that's been true, you have had some adult cases where you have listed cause of death to be undetermined, correct? I believe that's true, yes. And the NAME guide on manner of death states that undetermined is less than 50 percent certainty. Do you have any basis to dispute that? No. Cause of death is cause of death. Now, the medical examiner has an obligation to correct autopsy reports that need altered, correct? That is true, yes. Or to change or edit them, do you agree? Yes. And the National Association of Medical Examiners in its guidelines states the cases are seldom, if ever, truly closed because the conclusions may be ERIC G. SMEAD, REF COPY 445 changed based on new, relevant, and material information. Do you agree? That is true. We are held to that. You agree with Mr. Hyde's situation, for instance, let's talk about his restraint from law enforcement and the use of an electronic control device. You agree that the sooner Mr. Hyde received medical care there was a better prognosis for him, correct? That would be true, yes. He was in a serious health condition when officers arrived? Yes. Lacerated artery, correct? Correct. In delirium? Yes. He was at risk of death, do you agree? I would agree, yes. And the sooner medical care can be provided to him, the better the potential outcome, do you agree? I would agree, yes. And that's because he was in a state of ERIC G. SMEAD, RER COPY 446 intoxication as well, correct? Yes, he was. And bleeding, correct? That's correct. You?re aware that the and you have heard the testimony in open court that law enforcement could not get to him to restrain him initially because of behavior? Yes, that's my understanding. And you don't have any basis to dispute that, do you? No, I do not. And you don't have any basis to dispute the paramedic testimony that they could not get to him until he was restrained? I have nothing to dispute that. Now, Dr. Dean has testified under oath in deposition that she could not say that but for the TASER device Mr. Holcomb would have lived. Do you have any basis to dispute that testimony? It?s a situation that did not exist; therefore, .we cannot assess it, so we accept the statement as it stands. And you have not been in previous testimony disputed that testimony she made? ERIC G. SMEAD, RPR COPY don't dispute it, no. 447 MR. MALEY: Those are all questions I have. Thank you. THE COURT: Okay. You can step down. MS. RUBRIGHT: Your Honor, I have a few questions. THE COURT: You do? MS. RUBRIGHT: Yes. BY MS. RUBRIGHT: -Dr. Kohler, would you agree not all consecutive events are related to one another; is that correct? That's correct, yes. You indicated in your depositions that were taken in the Holcomb case that you did you became familiar with the Canadian research study on electronic control devices; is that right? Yes. And you became aware of that study after you ?issued the report of autopsy on the Hyde case? Yes, that would be correct. And in that Canadian research study you ERIC G. SMEAD, RPR COPY 448 acknowledge that there was no definitive evidence that exists that implicates a causal relationship between electronic control devices and death, isn't that correct? That is true, it does not state a causal relationship. And you conceded also not only that fact but also you conceded that you had no scientific or engineering evidence to contradict that study isn't that correct? At that time that, yes. IAnd that was after the Hyde death? Yes. You also have stated that you do not know whether or not methamphetamine desensitizes the heart to the effects of an electronic control device, isn't that correct? I don't recall that statement particularly of using the terminology desensitize versus sensitized correctly. Okay. If you want to go to your deposition from .2006, page 65, the question was asked: You don't hold yourself out as an expert on drugs and their sensitizing or desensitizing the heart, do you? Right. That is a correct reading. ERIC G. SMEAD, RPR COPY 449 1 Q. And your answer was that i . 2 A. Correct. 3 Q. that you do not know whether or not it 4 sensitizes or desensitizes? 5 A. No, I do not hold myself out as an expert. That 6 was the question. The answer to that was, No, I 7 do not hold myself out an expert as to whether or 8 not the drugs sensitize or desensitize the heart. 9 Q. You also stated that Dr. Sterbenz is the one who 10 actually did the autopsy and wrote the report of 11 autopsy; is that correct? 1 12 A. With regards to which case? . 13 Q. . With the Hyde case. 14 A. With the Hyde case, that is correct, yes. 15 Q. And if we look at the report of autopsy, it's 16 your signature that's on that report of autopsy; 17 is that right? 18 A. Both of ours appear. My signature appears on 19 most of the autopsies coming out of the office to 20 indicate that I have reviewed the findings and 21 I'm in agreement with those that have been 22 reported by my pathologists. 23 Q. ?So when your signature is on any report of . 24 autopsy, you agree with everything that's in that 25 report of autopsy, is that a fair statement? ERIC G. SMEAD, COPY 450 That is correct. And when you issued your report of autopsy on the Hyde death, you had in your possession all of the -interviews that were done of the police officers; is that correct? We had numerous interviews. I would have to assume that they are all of the interviews. I don't know that there are if I had everything or not. Did you review the interviews of the police officers who took the witness stand in this case, Officer Horvath? Yes, I have reviewed multiple witness statements 'regarding that. I can't say exactly which ones I have at this time frame. My question to you is did you re did you review the police officers who testified in front of you the other day, Officer Yurick, Officer Horvath, Officer Ross, did you read your reports before you issued the report of autopsy? I don't know at what point I read them. I have read them numerous times throughout this period since 2005 until today's date. I can't say when they were read, at what time in that time continuum. ERIC G. SMEAD, RPR are you telling me you might not have even .read them before you issued the report of autopsy? Word for word I probably did not read them. They were reviewed. They were also reviewed by my physician, Dr. Sterbenz. 'He read through them very thoroughly and would have discussed those issues with me at that time. You heard Paramedic Deihl testify in this courtroom; is that correct? Yes, I did. ?And you know that EMS was on scene during part of this struggle with Mr. Hyde; isn't that right? That is correct, yes. Didn't you feel that what the paramedics had to say about the condition of Mr. Hyde was very important? Yes. And we reviewed their EMS run sheets. We obtained that information. You had an EMS run sheet, and you reviewed that before the report of autopsy? -Yes, it was reviewed. You also had the individual interviews of Paramedic Dort and Paramedic Deihl, did you not? I believe there was a summation of what they ERIC G. SMEAD, RPR COPY 452 said. I don't recall right now if there were individuals off of each, specific one for Deihl and Dort, I don't recall. Do you know whether or not you reviewed the interviews of Paramedic Deihl and Paramedic Dort ?before you rendered your report of autopsy on Dennis Hyde? I don't have independent recall of every specific step I went on that case or any other case at this time. The information was there. I have seen it since. I cannot say specifically at what point in time I reviewed those. The information was reviewed prior to the determination as to the cause and manner of death. But you can't say whether you ever reviewed those statements and interviews from those paramedics before you signed them, you signed the report of autopsy? MR. Objection, asked and answered. THE COURT: Overrule. I don?t know if she did answer. I don't have direct recollection of when exactly in the time continuum those THE COURT: All she is asking you ERIC G. SMEAD, RPR COPY before. THE WITNESS: As I said, Judge, no disrespect, I don't recall when in the continuum. I read those specific reports. I reviewed very many reports over time, and I have reviewed numerous reports, especially recently, and I can't say complete with complete certainty that I looked at each word of those reports prior to the certification. Dr. Sterbenz was the primary person on those, and he would have done the in?depth review of the investigations. I would have looked at pieces of it during that time frame. I can't say with certainty I looked at the entire report at that time. RUBRIGHT: So your answer is no, you can't tell me whether you did or didn?t before you MR. MANLEY: Objection reported the autopsy on Hyde? MR. MANLEY: asked and answered. THE COURT: 1 think that is what ERIC G. SMEAD, RPR COPY saying. Overruled. You want to answer that question. My answer is as it stands. BY MS. RUBRIGHT: You made this statement in your deposition that based on your experience Hyde died because of a combination of drugs, electrical pulse incapacitation, and agitated behavior. Can you tell me what experience you ever had in the use of an electronic control device before the report of autopsy was issued on Dennis Hyde? We have had one case come through our office prior to that that we had direct experience with in which an individual was exposed to a TASER weapon. However, in that situation the individual was not controlled and was subsequently shot by the police. We had that opportunity to be aware of information and reviewed extensive information on TASER that was provided to me by the company as well by the Akron Police Department. So you're telling me you used the shooting case as your prior experience to render an opinion on the Hyde death? No. You asked if my experience was in electronic ERIC G. SMEAD, RPR COPY 455 icontrol device usage. That was case that we had had previously. As I stated before, we also had received extensive information on electronic control devices at the time we were making the decisions. So it would be the training as a forensic pathologist, my experience, as in my caseload, as well as the caseloads of my colleagues, in seeing how a weapon inflicts forces on an individual and cause physiologic stress on that individual which -coupled with other physiologic stress Doctor, I'm not asking you MR. MANLEY: Your Honor, if she could let the witness finish the answer to the question. THE COURT: I think it's a simple question. MS. RUBRIGHT: I think so, too. THE COURT: Why don't you repeat the question. MS. RUBRIGHT: Dr. Kohler, can you tell me what case was your prior experience with electronic control devices before Dennis Hyde? Just.tell me the name. Right now I don't recall the name. It was ERIC G. SMEAD, RPR COPY 456 mentioned in one of the previous deposition, I believe Mr. Johnson I don't recall the name or the case number. It has been mentioned in previous depositions. THE COURT: You're talking about the shooting case? THE WITNESS: Yes. BY MS. RUBRIGHT: And in this shooting case-you never deliberated about whether or not an electronic control device contributed to the death, because he was shot; isn't that right? In that situation we had another force that exceeded that of the TASER. He was shot, and the gunshot wound was the cause of death, yes. You made the statement that you have no idea whether physical exertion increases the hazards of methamphetamine use; is that correct? I don't recall that statement specifically, but if you have that in the deposition, I would agree to that. Well, I'm representing to you that is it in your '06 deposition at page 96, if you want to review that. THE COURT: What volume is that ERIC G. SMEAD, RPR COPY 457 one in? MS. RUBRIGHT: Your Honor, we didn't provide the deposition, I don't believe. We may have another copy. THE COURT: I thought you were going to tell me some black lined MR. MALEY: If you would like, we have them, Your Honor. Those are the depositions, if you would like them. THE They have been filed or not filed. MR. MALEY: They have not been filed. THE COURT: I guess I shouldn't look at them. The reference you had, before I forget to ask you, Ms. Ambrose Rubright MS. RUBRIGHT: Yes, Your Honor. THE COURT: You asked the medical examiner about a Canadian report? MS. RUBRIGHT: Yes. THE COURT: And were you also then cross?examined her about the deposition? Those are questions you had in the deposition? ERIC G. SMEAD, RPR COPY 458 MS. RUBRIGHT: That's correct, Your Honor. MR. MALEY: And, Your Honor, I stand corrected. All those depositions are of record. They were filed with our summary judgment motions. THE COURT: Oh. Maybe I can have the book back then. MR. MANLEY: You want to give him the book back? THE COURT: What page? MS. Your Honor, I'm going to withdraw instead of take the time. THE COURT: Where was the Canadian questions? MS. RUBRIGHT: It was a question about methamphetamine use. THE COURT: No, no. What page? MS. RUBRIGHT: It was on page 96. I'm withdrawing the question, Your Honor. I'm just withdrawing the question. THE COURT: I'm sorry. I'm talking about something that was asked and answered about five minutes ago. MS. RUBRIGHT: You mean the ERIC G. SMEAD, RPR 459 Canadian research study? THE Yes. MS. RUBRIGHT: It was in the 2006 deposition pages 62 through 65. THE COURT: That was my thank you very much. MS. RUBRIGHT: I'm sorry, Your Honor. I misunderstood what you were asking. THE COURT: You don't have to apologize. I may not have stated it clearly. Go ahead, please. BY MS. RUBRIGHT: Dr. Kohler, did you interview a single witness that was on scene at the death of Dennis Hyde before you issued your report of autopsy? I personally did not. Do you know whether anyone in your office interviewed any police officer, paramedic, or anyone at the scene of Dennis Hyde's death? My investigator would have communicated with individuals there. During the course of autopsy Dr. Sterbenz had the opportunity to speak with some of the police officers at that time. I don't know which of those may have been present ERIC G. SMEAD, RPR COPY the time. Q. Do you know what officers were at the autopsy of Dennis Hyde? A. The one that comes to mind is Detective Juanita Elton. Q. And was Detective Elton at the scene of Dennis Hyde, was she one of the officers responding to .that? A. No, she would not have been responding. I do not know whether she was present at the scene or not. Q. You made the statement that it does not matter to you when Hyde died, is that correct, the time of his death really doesn't matter to you? A. The exact time of death is really unknown at this point and the THE COURT: She asked you a different question. THE WITNESS: I?m leading to it, Your Honor. THE COURT: Okay. BY MS. RUBRIGHT: Q. It would go a lot quicker if you just answer the question. MR. MANLEY: Your Honor. THE COURT: Are we picking on the ERIC G. SMEAD, RPR COPY 461 witness? MR. MANLEY: I'm not going to make any characterizations, Judge, but if Ms. Ambrose would please just let the witness finish the answer. THE COURT: I think Ms. Ambrose is correct, I mean THE WITNESS: Could you repeat the question? I'm sorry. -BY MS. RUBRIGHT: Yes. You made the statement that it does not matter to you when Dennis Hyde died; is that correct? The exact moment of his death is not needed to be known in the situation. The fact that he died soon after the TASER is what we were looking for. So let's talk about soon. How did you come up with the time lapse between a TASER use and his death if you don't care what time he died? 'We don't know the exact time lapse in this situation. The whole situation was quite chaotic. We have times recorded on dispatch records. We have times that are recorded by the TASER weapons. These were for mathematics efforts; however, I can't say that ERIC G. SMEAD, RPR COPY 462 they were specifically reliable. We have paramedics giving times based on looking at their watch, and again I don't know how well coordinated those times are. So over a period of minutes there could be quite a variability in those recorded events, so I can't say specifically how long passed from the time of the last tasing applications to the time that the .individual died. You were THE COURT: Don't you typically accept the time frames that law enforcement people present to you? THE WITNESS: We accept them as being THE COURT: It sounds like a questioning. THE WITNESS: It's a general acceptance. It gives us an approximation. We can't say specifically that those times are correct. And, Your Honor, if you recall some of the other testimony we have had, they have stated that there are differences between what was recorded on the TASER ERIC G. SMEAD, RPR COPY 463 probes and what was the actual time, and there have been had to be some corrections there. THE COURT: But you certainly have outside limits, don?t you? THE WITNESS: We have an approximation. It's an approximation at best. I can?t say a particular time period at 1:02 point whatever a particular event definitively happened. I have gotten an approximation of minutes. I can't say exactly how many. THE COURT: But I have heard some of the experts for the Plaintiff that if it was contemporaneous with the death, that certainly was a contributing cause. They can see that. THE WITNESS: I believe it is contemporaneous. I believe the time frame we are talking about here is one of concern and a period of minutes following the application THE COURT: That's one of the disputes. What if it was 15 minutes went by from the last discharge of the TASER to ERIC G. SMEAD, RPR MS. 464 the person's death? THE WITNESS: I would still consider that as being a short time period. THE COURT: 15 minutes? THE WITNESS: Yes. THE COURT: But is it a significant time frame, whether it be 15 or five or one second? THE WITNESS: It's something that needs to be looked at in the overall appearance of the case. I can't say specifically. If we have a situation where someone is tasered, they fall and strike their head and get a head injury, it may take days for them to die. So you have to look at the time frame and its approximation and look at the victim situation that we have here, and we have I believe there are a period of minutes. I can't say specifically two minutes, five minutes, seven minutes. I do believe there is a period of minutes in each of these cases. THE COURT: Go ahead. RUBRIGHT: ERIC G. SMEAD, RPR COPY 465 Dr. Kohler, you didn't do anything or ask any questions or investigate what the time lapse was, isn't that correct? We reviewed the records, so we did do that portion. We did investigate by reviewing the records that they provided to us. You were provided with a computer printout from the Tasers, the actual guns that were used or the weapons that were used, from the three officers, you had the computer printout; is that right? Yes, we do. Did you assume that those were accurate times? We assumed that those are the times provided to us that the weapon was discharged. Did you assume that those were contemporaneous times, that it was not off at all? The times recorded on those discharges are different on the weapon as opposed to what?s on the printout. We have the time that was recorded on the individual weapons. We don't know how they were and there was a corrected time that one of the police officers created to say how when that happened Was that provided to you? That was provided. ERIC G. SMEAD, RPR COPY 466 Well, that officer testified, and his name is Steve Prough, and you sat here and heard him, didn't you? Yes. And Officer Prough stated that at 6:12:46 the last TASER probe cycle ended, that was the last cycle. Yes. Do you recall hearing that? I do recall that. And do you recall hearing Paramedic Deihl state that at 6:25 Dennis Hyde was alive and he had 28 ?respirations because he counted them and he looked at his watch? He looked at his watch. I don't know how that compares exactly to the dispatch times, but yes, those statements were stated and I agree. I didn't ask you about the dispatch times. You heard the testimony of those two witnesses, didn?t you? Yes, I did. Okay. So if we just do simple subtraction, 6:12 'and 6:25, that's 13 minutes, isn't it, Dr. Kohler? It would be 13 minutes assuming they are ERIC G. SMEAD, RPR COPY 467 time. That Paramedic Deihl's watch is That his watch is recording time at the same rate that the TASER is, and I can't say that for certain. It is a period of minutes. Let's say it's off two minutes. Which direction? -That it's actually less. Okay. Are you telling me that that time lapse does not matter to your opinion? In this situation it is still a period of minutes, and I believe that it does not play a major role in how we would determine these cases. MS. RUBRIGHT: I have no other questions, Dr. Kohler. THE COURT: Okay. Anything else? MR. MALEY: No, Your Honor, nothing of this witness. THE COURT: You can step down. Thank you, Dr. Kohler. (The witness was excused.) MR. MALEY: Like to call Dr. Sterbenz. THE COURT: Okay. Doctor, just ERIC G. SMEAD, RPR COPY 468 raise your right hand, first of all. GEORGE STERBENZ, M.D. a witness, herein called on behalf of the Plaintiff as on cross?examination, being first duly sworn as provided by law, was examined and testified as follows: THE COURT: Have a seat. And just for the court reporter state your full name. THE WITNESS: My name is Dr. George Sterbenz. THE COURT: Spell your last name, sir. THE WITNESS: S?t?e?r?b?e?n?Z. CROSS-EXAMINATION BY MR. MALEY: Good morning, Doctor. How are you today? Good morning. THE COURT: And you call him as on cross?examination? MR. MALEY: That's correct, Your Honor. BY MR. MALEY: Doctor, we have had occasion to Spend some time ERIC G. SMEAD, 469 together in depositions, correct? Yes. And you have given sworn testimony on prior occasions? Yes. You do not hold yourself out as an expert on TASER electronic control devices, correct? .Correct. You are not able to answer questions regarding characteristics of TASER electronic control devices, correct? Correct. You do not hold yourself out as an expert on electronic control devices regardless of manufacturer, correct? That's correct. And you're not an expert on the TASER brand X26 ?device, correct? Correct. And you don't hold yourself out as an expert on the effects of a TASER electronic control device on the human body, correct? Can you be more specific? Is there anything about the question you didn?t understand? ERIC G. SMEAD, RPR COPY 470 You state that I'm not an expert on the effects of the TASER device on the human body? That's correct. I asked you that question in your deposition, correct? That's essentially correct. And you answered no, that you were not holding yourself out as an expert'on the effects of a TASER electronic control device on the human body, correct? Correct. Now, you're not an expert on the effects, if any, of a TASER electronic control device on a human's arterial blood gases, correct? That?s correct. Or on human's pulmonary function, correct? That's correct. Or on the effect of such a device on a human's cardiac system, correct? That's correct. You're not qualified to render an opinion whether a TASER device can raise a human being's body temperature, correct? don't believe that is correct. But when I took your deposition under oath, you agreed with that statement, did you not? ERIC G. SMEAD, RPR COPY think there is experimental data that indicates that body temperature can be raised by the effects of a TASER device. You didn't cite any of that to me in your deposition, when I asked you, did you? THE COURT: Why don't you read to him what your question was and what he answered. MR. MALEY: I will do that, Your Honor. BY MR. MALEY: I direct your attention to your first deposition, Dr. Sterbenz, page 126. This is the deposition of June lst, 2007. Have you found page 126? Do -- I apologize. You may have the wrong notebook. That wouldn't match up, would it. Have you found page 126? Yes. I asked the question, line eight: Are you qualified to render an opinion as to whether a TASER device can raise a human body's temperature. What's the answer you gave at line 11? I stated, I believe the answer would be no. ERIC G. SMEAD, RPR COPY 472 Next I asked you: Have you ever researched the subject of whether a TASER device can elevate body temperature on a human? What was your answer? I stated, No. I said, I had not performed research. And I asked you next: Have you ever and you have never read a peer?reviewed scholarly publication that addresses the subject of whether TASER application can elevate the human body temperature? And you said, I don't recall at this time, correct? That's what I answered, yes. Now, you agree that forensic pathologists should not speculate? Yes. You agree that forensic pathologists should base their opinions on generally accepted medical principles? YES. -And forensic pathologists should base their opinions on generally accepted scientific principles? Yes. ERIC G. SMEAD, RPR 473 Doctor, let's talk a little bit about drugs. You would agree that someone who is intoxicated with illicit drugs that it would be appropriate for them to receive prompt medical attention? Yes. You agree there is no safe level of .methamphetamine intoxication in human beings? Yes. And if someone ingests the drug methamphetamine, they Should receive prompt medical attention, you agree? I agree that an individual is deserving of medical attention if they're using a drug illicitly, yes. Now, in Mr. Hyde?s situation in the basement you would agree that his behavior was agitated? 'No, I do not agree. Do you agree that he was in need of medical attention? You're asking me questions regarding Mr. Hyde? Mr. Hyde regarding issues that I was not present for. I can agree that others did interpret his behavior as such. Obviously I cannot give firsthand knowledge that Mr. Hyde was ERIC G. SMEAD, REF COPY 474 agitated or or specifically to Mr. Hyde's .mental state at the time in the basement on the day of his death because I was not there. And you have you have to rely on the firsthand witnesses, the officers, and the paramedics on the scene, correct, for that information? That is correct. And you have no reason to state that their observations were inaccurate, correct? Your question is I have no reason to state their observations are inaccurate? ?That's true. No, I cannot objectively confirm the accuracy of their statements. You have no reason to believe that their statements are inaccurate? And my answer is I have I am not able to confirm the accuracy of their statements. I cannot objectively confirm the accuracy of their statements. I don't have anatomic evidence at the time of autopsy that confirms the accuracy of their statements. I don't believe them to be specifically deceiving or lying in their statements. THE You?re getting a ERIC G. SMEAD, RPR COPY 475 pretty fancy answer, but don't you didn't you rely on their statements and other information in making your report? THE WITNESS: I absolutely do. I do have to rely on their statements in making my report. THE COURT: But you give me the impression like, well, maybe I shouldn't be relying on them. THE WITNESS: Well, very good point. I I do take into consideration their statements; however, there is two issues. Do I can I confirm that their statements are indeed absolutely accurate? I can't objectively confirm that, but, of course, I do consider their statements, and I have no reason to believe that their observations are intentionally inaccurate. THE COURT: Well, don't you do that everyday, every time you perform an autopsy? THE WITNESS: Every time, every time. I am given observation statements that are in part that individuals I trust are believing they're telling me what ERIC G. SMEAD, RPR COPY 476 they believe to be true. Some of that information is indeed true, and some is not exactly accurate, and I try to judge to what extent I can objectively confirm their statements with my autopsy observations. I attempt to look at the physical findings and to see to what extent I can objectively corroborate their statements and then make a decision as to what extent I need to interpret their statements versus the physical findings and formulate a final decision. BY MR. MALEY: Doctor, could you please turn to page 191 of your prior sworn testimony? Yes. Line 19, All right. And do you understand, we can quarrel with what words to use, that Mr. Hyde on occasion in the basement was acting wildly? Would you please read to the court the answer .you gave under oath? Yes. I understand that he was described as such, and I have no reason to believe that it is inaccurate. Thank you. Now, in the basement with Mr. Hyde ERIC G. SMEAD, RPR COPY 477 you agree he could not be given medical attention until he was restrained? I believe that is I do not know with certainty that he could not be given medical treatment until he was restrained. If indeed what is _described as him having violent behavior and agitated behavior, that would be consistent. Doctor, at page 191 of your deposition I asked you the question, line 25: Could Mr. Hyde be given medical attention prior to being captured, controlled, and/or restrained? At line three of page 192 what was your answer? Of course not. Thank you. Now, the TASER device was used by law -enforcement to bring Mr. Hyde under control, correct? Correct. Let's talk about excited delirium for a moment. You acknowledge and are aware that the National Association of Medical Examiners has a recognition of that entity of excited delirium, correct? Yes. Now, let's talk about blood and exsanguination. ERIC G. SMEAD, RPR COPY 478 ?Humans can die from exsanguination, agree? Yes. And someone who has a transection of the radial artery can potentially result in significant loss of blood, exsanguination, and death, correct? Exsanguination of the major artery can result in death, yes. Including the radial artery, correct? Including the radial artery. And where is the radial artery? .It is an artery in the arm. Including the wrist? Yes. Now, with respect to Mr. Hyde you did not specifically attempt to measure the volume of blood present at the scene in that home, correct? That is correct, I did not specifically extract the blood from his body and measure the volume. Now, let's talk about TASER involvement in this matter. It is your opinion that TASER is not an independent cause of death in Mr. Hyde's demise, true? True. Let's talk about timing. 'You don't know how long it was from the last TASER application until Mr. ERIC G. SMEAD, RPR 479 Hyde went into arrest, correct? There is that is correct, yes. And clearly the period of time has some significance, agree? Yes. And you don't have an opinion as to what the timeline is to determine whether a TASER is contributory or not contributory to a human's demise, true? I'm sorry, could you repeat that question? Certainly. You do not have an opinion as to the time duration at which you can say either that the TASER was causative contributory or was not causative contributory, that is the time period .from last application until a human's arrest? Your Honor, there is no time period from which an inflicted force that results in an injury and then later brings about or contributes to death would not be considered part of that mechanism of death. So if the TASER, for example, resulted in the individual falling down striking their head and receiving a head injury, that later results or contributes to their death 30 years later, that 'application of the TASER would still forensically ERIC G. SMEAD, RPR COPY considered even 30 years later. Certainly that is an acceptable principle. So 30 years later you would still list TASER as a contributory cause of death, is that your testimony? My testimony is if an injury is inflicted, and it does contribute to death, interval from the time of the infliction to the time of death is irrelevant. .I direct your attention to page 150 of your prior sworn testimony, Doctor. Please tell me when you found page 150. I will. Yes. Line nine: All right. Do you have an opinion as you sit here today as to the time duration of which you can say either that the TASER probably was causative or the TASER was probably not causative from the last TASER application on a human until arrest? You asked, On a human? I said, Yes. What was your answer at line 17? I have not rendered an opinion, and I don't have one currently. Thank you. You don't have an opinion as to ERIC G. SMEAD, RPR COPY 481 whether Mr. Hyde went into arrest within five seconds of the last TASER application, correct? That's correct. Or 60 seconds, correct? 'That's correct. Or five minutes, correct? That's correct. But you agree that the longer the period of time from the last application of an electronic control device until arrest that it's less likely that the device contributed to death? Once again, there is no definite period of time which would negate the inflicted effect of any force if that force can be shown to have a continuous sequence of events. Could you please turn to page 194 of your prior sworn testimony, Doctor? Have you found it? Yes. Line nine, question: Do you agree with the statement that the longer the period of time from the last application until arrest the less likely it is that TASER contributed to death? What did you answer under oath in your deposition? ERIC G. SMEAD, RPR COPY said, I would conform to that. And you said it twice, right, I would conform to that, I would conform to that, correct? Did I read that properly? Yes. Now let's talk about percentage contribution. You?re not able to state to a reasonable degree of medical certainty what percentage contribution an electrical pulse incapacitation contributed to Mr. Hyde's death, correct? That's correct. And same for Mr. McCullaugh, correct? That's correct. You will only contend there is some contribution, the bare minimum, some fraction of a percent, correct? At_the very least a fraction of a percent. You don't contend that the TASER device was greater than 25 percent of the cause of Mr. Hyde's death or Mr. McCullaugh's death, true? I haven't rendered an opinion as to what percentage that a TASER device contributed to Mr. Hyde's or Mr. McCullaugh's death. And so my statement would be true? Your statement is I agree that it's not 25 ERIC G. SMEAD, RPR COPY 483 percent. No. You do not contend that the TASER contribution was greater than 25 percent, agreed? I don't contend that it's any percentage. I haven't rendered an opinion as to any percentage of contribution. So you don't So it could be 25 percent, but I'm not saying that it is definitely 25 percent. And that's my questions of you, Doctor, and I can move through this quickly. I asked you these questions at your deposition, and you answered them. If you can answer again, I would appreciate it. Let's take ten percent, you don't contend that TASER contributed to ten percent contribution in Mr. Hyde's death, correct? Not ten percent. I haven?t made an opinion as to any percent contribution. THE COURT: I think he has answered. MR. MALEY: All right. It?s THE COURT: It?s noon. I don't know how much longer you?re going to be. Maybe we could break for lunch or not. ERIC G. SMEAD, RPR COPY 484 You're going to ask some questions? MS. RUBRIGHT: I will. MR. We probably have 15 minutes. THE COURT: The previous admonition I gave you applies. Let me just refer you have you shown him the stipulated facts, by the way? MR. MANLEY: Uh?huh. THE COURT: The doctor has seen them? MR. MANLEY: Uh?huh. THE We will be recessed until 1 o?clock. (A luncheon recess was had.) ERIC G. SMEAD, RPR