0001
 1   
 2             IN THE COURT OF COMMON PLEAS
 3                CUYAHOGA COUNTY, OHIO
 4   - - - - - - - - - - - - - - - - - - - - -x
     C. JEAN THOMPSON, Individually and as    :
 5   Administratrix of the Estate of
     Robert Thompson, Deceased,               :
 6   
                 Plaintiff,                   :
 7   
                                              :
 8               -against-                    Index No.
                                             CV 07622712
 9   MARK MELAMUD, M.D., MARK MELAMUD,
     M.D., L.L.C.,                            :
10                                            :
                 Defendants.
11                                            :
     - - - - - - - - - - - - - - - - - - - - -x
12   
13           DEPOSITION of CHARLES V. WETLI, M.D., taken
14   by Plaintiff at Continental Airlines, President's
15   Club, LaGuardia Airport, Flushing, New York, on
16   Thursday, October 23, 2008, commencing at 12:55
17   o'clock p.m., before Annette Forbes, a Certified
18   Shorthand (Stenotype) Reporter and Notary Public
19   within and for the State of New York.
20   
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25   
0002
 1   
 2   A P P E A R A N C E S:
 3   
               BECKER & MISHKIND
 4                   Attorneys for Plaintiff
                     Skylight Office Tower
 5                   1660 West Second Street, Suite 560
                     Cleveland, Ohio  44113
 6   
               BY:   HOWARD D. MISHKIND, ESQ.
 7   
 8   
               BONEZZI, SWITZER, MURPHY, POLITO
 9             & HUPP CO. LPA
                     Attorneys for Defendants
10                   1300 East Ninth Street, Suite 1950
                     Cleveland, Ohio  44114-1501
11   
               BY:   STEVEN J. HUPP, ESQ.
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0003
 1                          Wetli
 2   C H A R L E S   V.     W E T L I , called as a
 3          witness, having been first duly sworn by
 4          Annette Forbes, a Notary Public within
 5          and for the State of New York, was
 6          examined and testified as follows:
 7   DIRECT EXAMINATION
 8   BY MR. MISHKIND:
 9           Q     Would you please state your name
10   for the record?
11           A     Dr. Charles Wetli, W-E-T-L-I.
12           Q     How are you today, Doctor?
13           A     Good.
14           Q     Good to meet you.
15           A     Thank you.
16           Q     Doctor, you obviously know that
17   I'm here to take your deposition in connection
18   with the case that was filed by the estate of
19   Robert Thompson against Dr. Melamud.
20                 I know you have had your
21   deposition taken multiple times and have
22   testified extensively, but you and I have never
23   met before, true?
24           A     True.
25           Q     I will try to, as I go through the
0004
 1                          Wetli
 2   deposition, give you sort of an indication where
 3   I'm going next so that we can try to move along
 4   as efficiently as we can.
 5                 To the extent that my questions
 6   aren't obvious or clear, tell me, "Howard, I
 7   don't understand," I will rephrase the question
 8   or I will let the court reporter read it back.
 9                 Is that fair?
10           A     Fair.  Thank you.
11           Q     I'm sure you know, but I will say
12   it anyway.
13                 I am intending to rely upon the
14   answers that you give under oath today when this
15   case proceeds to trial in a matter of four or
16   five weeks, so I want to make certain when I
17   leave here today that I have all the opinions
18   that you hold and intend to provide at trial, as
19   well as the basis for those opinions.  So stay
20   with me on the question.
21                 I will let you respond fully.  I
22   will not cut you off during the course of an
23   answer, and try to do the same with me if I am
24   in the middle of a long question, like my
25   dissertation now before we even begin.
0005
 1                          Wetli
 2                 Fair enough?
 3           A     Fair enough.
 4           Q     Doctor, I'm going to show you two
 5   documents which I marked previously, prior to
 6   the deposition.
 7                 One is Plaintiff's Exhibit 1 and
 8   it's dated March 8, 2008.
 9                       (Report dated 3/8/08 to
10               James Stephenson from Dr. Wetli was
11               marked as Plaintiff's Exhibit 1 for
12               identification, as of this date.)
13   BY MR. MISHKIND:
14           Q     If you could just take a quick
15   look at that and confirm on the record that this
16   is, in fact, the report that you wrote to, I
17   think it was to Jim Stephenson of Mr. Hupp's
18   office?
19           A     (Perusing document.)  That is
20   correct.
21           Q     Is that your one and only expert
22   opinion report that you have written in this
23   case?
24           A     Yes.
25           Q     I presume that since January --
0006
 1                          Wetli
 2   since March 8, 2008 when you prepared this
 3   report, you have not written any other reports;
 4   is that correct?
 5           A     That is correct.
 6           Q     And I'm going to show you what I
 7   have marked as Plaintiff's Exhibit 2, and that
 8   is a CV of yours as of January 2, 2008, 29 pages
 9   in length.
10                       (Curriculum vitae of Charles
11               V. Wetli, M.D. was marked as
12               Plaintiff's Exhibit 2 for
13               identification, as of this date.)
14           Q     Is that the most current edition
15   of your CV that you have available?
16           A     (Perusing document.)  For all
17   practical purposes, I think since then I have
18   made one or two additional, one or two minor
19   additions, but that would be about it.
20           Q     Is there actually a physical
21   updated CV that you have provided since this
22   January 2, 2008 edition?
23           A     Not that I provided, but I can
24   e-mail the most current one to Mr. Hupp.
25           Q     Okay.  So you have prepared one,
0007
 1                          Wetli
 2   but have not disseminated it or provided it to
 3   anyone at this point?
 4           A     Correct.
 5                 For example, I was elected to the
 6   Executive Committee of the National Association
 7   of Medical Examiners.  I think that was added
 8   back in September.
 9                 That's about the only change.
10           Q     If you wouldn't mind sending an
11   e-mail to Mr. Hupp, but for purposes of our
12   meeting today, Plaintiff's Exhibit 2 is pretty
13   up to date, with perhaps a couple of minor
14   modifications?
15           A     Exactly.
16           Q     Are there any publications or
17   presentations that you have provided that are
18   not reflected in your CV?
19           A     Yes.
20                 I don't usually put down
21   presentations on my CV unless they are
22   peer-reviewed presentations.
23           Q     When was the last time you
24   provided any type of non-peer-reviewed
25   presentation?
0008
 1                          Wetli
 2           A     Last August.
 3           Q     Are there any non-peer-reviewed
 4   presentations or publications that you have
 5   either written or presented since you prepared
 6   this January 7, 2008 CV?
 7           A     Well, yes.
 8                 I have given non-peer-reviewed
 9   presentations to various organizations during
10   the course of this year, but I normally don't
11   list those on my CV.
12           Q     Give me an example of what would
13   be a non-peer-reviewed presentation or
14   publication?
15           A     Last one I did was to the
16   Institute of Law Enforcement Administration in
17   Plano, Texas on investigation of sudden death in
18   police custody.
19                 Early in the year I did a
20   presentation to the New York State Association
21   of County Coroners and Medical Examiners
22   regarding the medical examiner and organ and
23   tissue transplantation.
24           Q     I know that next week you are
25   going to be presenting on excited delirium in
0009
 1                          Wetli
 2   Las Vegas.
 3                 Would that be one of the
 4   presentations that would be reflected on your CV
 5   or would that be one of those that would not
 6   typically be reflected?
 7           A     It would not be reflected.
 8                 The only ones that are reflected
 9   are formal presentations to an organization such
10   as the National Association of Medical Examiners
11   and the American Society of Clinical
12   Pathologists, where these are peer reviewed and
13   approved prior to the presentation.
14           Q     Is that excited delirium
15   presentation in Las Vegas, is that still going
16   forward with you as one of the presenters?
17           A     As of this moment it may be
18   jeopardized because I may have to testify in a
19   trial in Riverside, California that day.
20                 If that trial gets moved, then I
21   will be presenting in Las Vegas.  If not, I will
22   have to miss the lecture and testify at trial.
23           Q     I want to ask you a couple of
24   questions about your CV, and you can certainly
25   refer to it if you need to, but you probably
0010
 1                          Wetli
 2   will be able to answer it without.
 3                 Tell me, what are Check samples,
 4   C-H-E-C-K samples?
 5           A     Check samples are a series of
 6   educational publications by the American Society
 7   of Clinical Pathologists.
 8                 The format is a presentation of a
 9   case history with usually photographs and
10   possibly a microscopic slide followed by a
11   series of questions.
12                 And that is then followed as a
13   discussion of the various topics.  The actual
14   case presentation is usually a springboard for
15   discussion of various injury patterns or disease
16   processes.
17                 And it is then followed by
18   questions which the subscriber may use for
19   continuing medical education credit.
20           Q     How would I as a lay person go
21   about obtaining one or more of the Check samples
22   that you have referred to in your CV?
23           A     You could call the American
24   Society of Clinical Pathologists and give them
25   the title, the year of publication and they
0011
 1                          Wetli
 2   should be able to provide it to you.
 3           Q     When would be the last
 4   presentation, peer reviewed or otherwise, that
 5   you gave to a non, to a medical group, as
 6   opposed to speaking to lawyers?
 7           A     This past August I spoke to the
 8   Florida Association of Medical Examiners.
 9           Q     You have lectured to groups of
10   lawyers?
11           A     Yes.
12           Q     You have also lectured on and
13   perhaps prepared a number of these Check samples
14   on serving as an expert witness, correct?
15           A     Correct.
16           Q     How many times would you say you
17   have given presentations where the topic was the
18   pathologist as an expert witness?
19           A     I gave it seven times for the
20   American Society of Clinical Pathologists
21   workshops and perhaps another eight or ten or 12
22   times to informal groups or formal groups,
23   but -- basically I remember but to members in
24   the association, another time to staff at Stony
25   Brook Medical School pathology department, that
0012
 1                          Wetli
 2   type of thing.
 3           Q     You have in front of you a file.
 4                 Tell me what's in that manila
 5   file.
 6           A     In this file is all my notes and
 7   records of the case at hand.
 8           Q     Does that contain all of the
 9   information that you have been provided that
10   forms the basis of your opinions?
11           A     Yes.  Of course, I did not bring
12   the x-rays.  I did not bring the microscopic
13   sections, but I have notes of those in here.
14           Q     My understanding is that there was
15   one slide of the colon; is that correct?
16           A     That is correct.
17           Q     I'm sorry, I reached across.
18                 May I?
19           A     No problem.
20           Q     Thank you.
21                 Doctor, thank you for allowing me
22   to look through your file.  I just want to
23   clarify a couple of things.
24                 It looks like you were originally
25   contacted by an attorney by the name of Patrick
0013
 1                          Wetli
 2   Quallich, Q-U-A-L-L-I-C-H, from Mr. Hupp's
 3   office?
 4           A     Yes.
 5           Q     You ultimately wrote a report to
 6   Mr. Stephenson from Mr. Hupp's office.
 7                 Do you recall ever talking to or
 8   communicating with Mr. Stephenson?
 9           A     I don't have an independent
10   recollection of that.
11                 Usually I will make a notation in
12   my file somewhere, notes of whatever I spoke to
13   somebody about, would be on one of the cover
14   letters or it could be in a notation somewhere
15   in my notes.
16           Q     Doctor, what I'm going to do in a
17   moment, I'm going to go off the record and mark
18   for identification, we will return the original
19   to you, but for the record, there appear to be
20   three pages of handwritten notes.
21                 Are these notes in your
22   handwriting?
23           A     Yes.
24           Q     Were these made when you reviewed
25   the case initially or were they a continuous
0014
 1                          Wetli
 2   process?
 3           A     Mostly the writing, the notes are
 4   made when I finish reviewing the initial
 5   materials of the case, and sometimes I will have
 6   a conversation with the attorney, I will add to
 7   it, which I apparently did not in this case.
 8                 So the first two pages are
 9   basically everything after I reviewed the
10   initial materials and the subsequent page are
11   notes of what I observed by looking at tissues
12   of the microscope.
13           Q     Just to be clear, I said the first
14   two pages.
15                 The first pages, which are yellow
16   legal pads, when they are photocopied, they are
17   not going to look yellow.
18                 The third of the pages to be
19   marked Plaintiff's Exhibit 3, the third page
20   will contain your review after looking at the
21   postmortem slides, correct?
22           A     Correct.  Microscopic, correct.
23           Q     I see, in addition to the
24   information that's referenced in your report
25   dated March 8, 2008, it appears that you have
0015
 1                          Wetli
 2   been sent a copy of a report of Dr. Eisner,
 3   which was marked as an exhibit at the time of
 4   his deposition in August, and you have portions
 5   of Dr. Eisner's discovery deposition.
 6                 Is that true?
 7           A     True.
 8           Q     Would that be the only additional
 9   information that you would have received from
10   Mr. Hupp's office after writing your March 8th
11   report?
12           A     That is correct.
13           Q     On Dr. Eisner's report there is an
14   area that is circled with a question mark that
15   says "to experience abdominal bloating and sharp
16   abdominal pain," and you have a question mark
17   next to that, correct?
18           A     Correct.
19           Q     When did you mark that in red with
20   a question mark?
21           A     This morning.
22           Q     While you were meeting with Mr.
23   Hupp?
24           A     No, before.
25           Q     And tell me the reason that you
0016
 1                          Wetli
 2   marked that with a question mark.
 3           A     Because all the materials that I
 4   reviewed, there was never any mention of sharp
 5   abdominal pain, so I don't know where he got
 6   that information from, but it's certainly not
 7   from anything that I reviewed.
 8           Q     You weren't provided with
 9   Mrs. Thompson's deposition?
10           A     That's correct.
11           Q     And you had not seen Dr. Melamud's
12   deposition, correct?
13           A     Correct.
14           Q     Certainly with regard to the
15   issues in this case, just so that we can strike
16   off certain areas, you are not going to be
17   providing standard of care testimony in this
18   case.
19                       MR. HUPP:  I will stipulate
20               he absolutely will not testify as to
21               the standard of care.
22           Q     For the record, you understand
23   that you are not providing standard of care
24   opinions, correct?
25           A     That is correct.
0017
 1                          Wetli
 2           Q     As to the history that occurred
 3   prior to or the conversations that occurred
 4   prior to Mr. Thompson arriving by ambulance at
 5   the South Point Hospital in terms of what that
 6   conversation consisted of, other than seeing the
 7   hospital records and the, well, looks like the
 8   hospital records from South Point, the death
 9   certificate and the autopsy, you don't have any
10   other source of history relative to what was
11   said by the patient, correct?
12           A     That is correct.
13           Q     Do you recall what information Dr.
14   Melamud reflected in the hospital records after
15   the patient had already arrested?
16           A     I don't recall that specifically.
17                 I remember reading the hospital
18   records, but I don't think I particularly
19   focused on who wrote what.
20           Q     And in terms of the issues in this
21   case, as to whether or not the patient had
22   bloating or abdominal pain prior to presenting
23   to the hospital, is that of any significance as
24   it relates to the opinion that you have in this
25   case?
0018
 1                          Wetli
 2           A     No.
 3           Q     Doctor, were you just provided
 4   with Pages 19, 26, 27, and 28 of Dr. Eisner's
 5   deposition?
 6           A     No, I was provided with the entire
 7   deposition.
 8           Q     Tell me why you only brought those
 9   pages with you today.
10           A     Because that's all that interested
11   me.
12           Q     And on Page 19 you put a little
13   bracket with a checkmark where the question was
14   asked:
15                 "So even if you were to believe
16   from Melamud's testimony about bloating and
17   about the inability to pass gas, you still
18   believe during that conversation the standard of
19   care required him to send Mr. Thompson to the
20   emergency room?"
21                 And the answer was, "Yes."
22                 And the question was, "Why?"
23                 And then he went on to talk about
24   why he should have been sent to the emergency
25   room.
0019
 1                          Wetli
 2                 Is this testimony of any
 3   significance as it relates to the opinions that
 4   you are qualified to provide and intend to
 5   provide at the trial of this case?
 6           A     No.
 7           Q     Is there anything in these pages
 8   that is of any relevance or materiality to the
 9   opinions that you hold in this case?
10           A     Not really, no.
11           Q     Other than the balance of the
12   deposition of Dr. Eisner, which you didn't bring
13   with you, and the x-rays and the slides, is
14   there anything else that you did not bring with
15   you today?
16           A     No.
17           Q     Is there anything that has been
18   removed from your file during your
19   pre-deposition meeting with Mr. Hupp?
20           A     No.  Except the only thing that
21   would have been removed is when I go through
22   medical records, for example, just like I do
23   through the depositions, I only retain the pages
24   that I want.
25                 So frequently I will be given a
0020
 1                          Wetli
 2   stack of medical records that might be two feet
 3   high and I will keep ten pages.
 4           Q     Well, you have with you, you have
 5   the toxicology results from the autopsy, you
 6   have pictures from the autopsy and you have some
 7   of the labs?
 8           A     Correct.
 9           Q     And certain pages from the
10   hospital records.  And the highlighting in the
11   records, I presume, was provided by you?
12           A     Correct.
13           Q     I noted that when you reviewed the
14   case you said that you didn't see the actual
15   x-ray report of the abdomen.
16                 I presume at some point in time
17   you have been provided with that?
18           A     I don't recall it.  I remember
19   reading about it in the medical records.
20                 The only report I remember seeing
21   is a portable chest x-ray talking about the
22   endotracheal tube being in proper position, but
23   I don't recall seeing the actual abdominal
24   report in there.
25                 I did look at the x-ray myself.
0021
 1                          Wetli
 2           Q     Aside from the x-ray, and we will
 3   talk about the actual interpretation, did you
 4   believe that you were provided with a full set
 5   of records by Mr. Hupp's office?
 6           A     I believe so, yes.
 7           Q     And the set of records that were
 8   provided by you, just so the record is clear,
 9   did not have a copy of the radiologist's
10   interpretation of the x-ray that was taken when
11   Mr. Thompson arrived in the hospital going into
12   the, after midnight on the 16th?
13           A     Correct.  I don't recall seeing it
14   and something I probably would have, like I know
15   I would have retained, so I have to presume it
16   was not there.
17           Q     I'm going to show you, Doctor, the
18   report that was actually in the hospital records
19   which apparently was not provided to you.
20                 I just want to confirm that this
21   report, for the record, that was interpreted by
22   a radiologist by the name of Kerry Sullivan of
23   the chest and abdomen showing the interpretation
24   by this radiologist of a large amount of free
25   intraperitoneal air and then it says the
0022
 1                          Wetli
 2   findings were discussed with Dr. Gliner.
 3                 If you could just take a look at
 4   that case and confirm for me on the record that
 5   this is the first time that you are actually
 6   seeing the radiologist's interpretation of the
 7   film?
 8           A     May I see my records for a second,
 9   my hospital records?
10           Q     Absolutely.
11                       MR. MISHKIND:  Off the
12               record.
13                       (Discussion off the record.)
14                       (Seven-page document,
15               including report of Dr. Wetli and
16               handwritten notes, was marked as
17               Plaintiff's Exhibit 3 for
18               identification, as of this date.)
19                       MR. MISHKIND:  We are now
20               back on the record.
21   BY MR. MISHKIND:
22           Q     Let me state that Plaintiff's
23   Exhibit 3, Doctor, what the court reporter has
24   done is put an exhibit sticker on actually your
25   report, which is three pages, and then the fax
0023
 1                          Wetli
 2   transmission page where you faxed it to
 3   Mr. Stephenson and then the three pages of
 4   notes.
 5                 So Exhibit 3 actually will be
 6   seven pages in length, we are in agreement on my
 7   statement?
 8           A     That's fine.
 9           Q     Thank you.
10                 With regard to the x-ray report
11   that was taken by the radiologist of the
12   abdomen, when you were provided with the
13   hospital records, were you provided with that
14   x-ray report?
15           A     Only half of it.  The portable
16   film of the chest about an endotracheal tube,
17   but the rest of it about the abdomen, no.
18           Q     So the part where the radiologist
19   interpreted the abdomen and found that the bowel
20   gas pattern is relatively gasless, but there is
21   a large amount of free intraperitoneal air, when
22   you were provided with the records, you were not
23   provided with this page of the record, correct?
24           A     That is correct.
25                       MR. MISHKIND:  I suppose,
0024
 1                          Wetli
 2               just for completeness, we will go
 3               ahead and mark this as Plaintiff's
 4               Exhibit 4.
 5                       (X-ray report was marked as
 6               Plaintiff's Exhibit 4 for
 7               identification, as of this date.)
 8           Q     Just so we can trace things,
 9   Plaintiff's Exhibit 4 is a copy of the
10   radiologist's report that shows the
11   intraperitoneal air which up until this point in
12   this case you had never seen this report,
13   correct?
14           A     It does not show intraperitoneal
15   air, but it's a report claiming that there is
16   intraperitoneal air present.
17           Q     Let me rephrase.
18                 This is presumably, by presumably,
19   a board certified radiologist or at the very
20   least a radiologist by the name of Kerry
21   Sullivan who at the time, on April 15, 2004,
22   interpreted the film from a clinical standpoint
23   and provided this official interpretation of the
24   x-ray of the abdomen, correct?
25                       MR. HUPP:  Objection.
0025
 1                          Wetli
 2           A     Correct.
 3           Q     And we can agree that's an
 4   official interpretation by the radiologist that
 5   was communicated to Dr. Gliner and looks like to
 6   Dr. Mars, was made a part of the hospital
 7   record, shows his interpretation, his being the
 8   radiologist, that there is a large amount of
 9   free intraperitoneal air, correct?
10           A     That is correct.
11           Q     I know I may be beating a dead
12   horse with a stick, but you never saw this
13   report prior to moments ago?
14           A     Correct.
15           Q     I want to go back for a moment and
16   talk about your CV and your background and your
17   current practice again.
18                 I told you, I will sort of let you
19   know where I am segueing just to move things
20   along.
21                 I know that you have or had board
22   certification of anatomical, clinical and
23   forensic pathology?
24           A     Correct.
25           Q     Do you maintain all three
0026
 1                          Wetli
 2   certifications?
 3           A     Correct.
 4           Q     Tracing you back to your roots, I
 5   understand that you first worked in the medical
 6   examiner's office in Miami, Florida?
 7           A     Correct.
 8           Q     And that was up until 1977?
 9           A     No.
10           Q     Up until what year was it?
11           A     Actually, I worked for two months
12   at the medical examiner's office in the summer
13   of 1973 and then returned to the medical
14   examiner's office in September of 1977, where I
15   remained at that office until February of 1995.
16           Q     That's when you took the position
17   with Suffolk County?
18           A     In New York, correct.
19           Q     Which is Long Island?
20           A     Eastern Long Island.
21           Q     And you retired in 2006 from the
22   Suffolk County Medical Examiner's Office,
23   correct?
24           A     Correct.
25           Q     And have you worked as a medical
0027
 1                          Wetli
 2   examiner since 2006?
 3           A     No, not as a medical examiner, no.
 4           Q     It actually looks like, was it
 5   July of 2006 that you officially retired?
 6           A     No, August 14th.
 7           Q     Who replaced you?
 8           A     Dr. Ivan Milewski,
 9   M-I-L-E-W-S-K-I.
10           Q     Have you ever worked in a hospital
11   as an anatomical or a clinical pathologist?
12           A     Yes.
13           Q     When?
14           A     Cedars of Lebanon Hospital, Miami,
15   Florida from September 1976 to September 1977.
16                 Prior to that I was an anatomic
17   pathologist in the United States Army.
18           Q     Since September of 1977, have you
19   worked in a hospital setting as an anatomical or
20   a clinical pathologist?
21           A     No.
22           Q     When you worked for Suffolk
23   County, you were also director of forensic
24   science for Suffolk County, correct?
25           A     Correct.
0028
 1                          Wetli
 2           Q     Correct me if I am wrong, but in
 3   looking at your CV and studying about you, it
 4   appears that your major interest as a forensic
 5   pathologist has been in the area of drug-related
 6   deaths and deaths in police custody?
 7           A     Correct.
 8           Q     You have also had an interest in
 9   the impact of Afro-Caribbean religions on
10   forensic investigations, correct?
11           A     Correct.
12           Q     You have served as an expert as it
13   relates to the study of the religion of
14   Santeria, correct?
15           A     Correct.
16           Q     And Santeria has -- why don't you
17   tell me what Santeria is?
18           A     Santeria is a religion of African
19   origin which was modified when the slaves were
20   brought to the new world and created,
21   essentially created in the new world, basically
22   Cuba, as well as central and South America,
23   predominantly Cuba, an amalgamation of numerous
24   African religions which are now formed into one
25   religion, which translates into a saint -- a
0029
 1                          Wetli
 2   phenomenon whereby the African deities are
 3   created in the images of Catholic saints.
 4           Q     Do you still believe in the
 5   religion of Santeria?
 6           A     I don't believe in any religion.
 7           Q     Are you an atheist?
 8           A     Yes.
 9                       MR. HUPP:  Let me object,
10               move to strike any discussions of
11               religions with the witness.
12                       I don't believe it's proper
13               for cross-examination.
14                       MR. MISHKIND:  The objection
15               is noted.
16           Q     Do you believe in the principles
17   of Santeria?
18                       MR. HUPP:  Objection.
19           A     No, I don't believe in the
20   principles of any religion.
21           Q     There have been matters that you
22   have testified in as it relates to sacrificing
23   animals?
24           A     Correct.
25           Q     Which was part of the worship by
0030
 1                          Wetli
 2   those that follow Santeria, correct?
 3           A     And several other
 4   African/Caribbean religions, as well, that's
 5   correct.
 6           Q     Do you recall testifying in a case
 7   about the Church of Lukumi, Bobaloo versus the
 8   City of Hialeah?
 9           A     Yes.
10           Q     Do you recall whether or not your
11   opinion in this case was accepted or rejected by
12   the Court?
13                       MR. HUPP:  Objection.
14                       Move to strike.
15           A     I have heard that the judge
16   decided not to accept the testimony.
17           Q     Doctor, just while we are on that
18   topic, have there ever been any other occasions
19   where your opinion, as it relates to a topic
20   that you were testifying to, was rejected by a
21   court of law?
22                       MR. HUPP:  Objection.
23           A     Not that I know of.
24                 I wasn't aware of that one until a
25   few months ago really.
0031
 1                          Wetli
 2                 There is an interesting comment on
 3   that, by the way.
 4           Q     I have read the whole thing.
 5           A     You know about the judge?
 6           Q     I don't.  But the opinion is
 7   pretty self-explanatory.
 8                 Anyway, let's move on.  We could
 9   talk about that perhaps at another time.
10                 The professional organizations
11   that you are no longer a member of, I think you
12   put those in brackets or with some designation
13   that you are no longer a member of those
14   professional organizations.
15                 Did you voluntarily resign from
16   those organizations or were you, in any of them
17   were you asked to leave the organization?
18           A     No, never.
19                 I voluntarily left them for one
20   reason or another.
21           Q     Do you know any of the
22   pathologists, any pathologists from Cuyahoga
23   County?
24                 Do you know any of the
25   pathologists from the coroner's office in
0032
 1                          Wetli
 2   Cuyahoga County?
 3           A     I know Dr. Balraj.
 4           Q     And Dr. Balraj signed the autopsy
 5   in this case, correct?
 6           A     Correct.
 7           Q     Do you know anyone else from the
 8   coroner's office in Cuyahoga County other than
 9   Dr. Balraj?
10           A     Not offhand.  I'm not sure who is
11   there now.
12           Q     Dr. Miller, do you know Frank
13   Miller?
14           A     No.
15           Q     How did you know Dr. Balraj or how
16   do you know Dr. Balraj?
17           A     I have seen him at various
18   meetings.
19           Q     Did you find her to be a competent
20   pathologist?
21           A     I can't say one way or the other.
22   She seems to be competent.
23                 I have disagreed with her a number
24   of times on conclusions, but she seems to be
25   competent, yes.
0033
 1                          Wetli
 2           Q     How many times have you actually
 3   disagreed with Dr. Balraj?
 4           A     Three or four perhaps.
 5           Q     Have you served as an expert
 6   witness in those three or four cases?
 7           A     In one of them I know I did.  I
 8   don't know about the others.
 9                 The others I believe either
10   settled or evaporated somehow.
11           Q     Doctor, off the record we were
12   talking about Santeria for a moment, but you
13   actually wrote a forward in one of the books on
14   Santeria, as well, correct?
15           A     Correct.
16           Q     Now, I was starting to ask you
17   about Dr. Balraj and the Cuyahoga County
18   coroner's office.
19                 Putting this case aside, there
20   have been other cases where you have been asked
21   to review the coroner's verdict and autopsy
22   protocol and ultimate cause of death as deemed
23   by the coroner's office in Cuyahoga County,
24   correct?
25           A     Correct.
0034
 1                          Wetli
 2           Q     I think you told me before when
 3   you testified in more than one matter on three
 4   or four occasions you have disagreed with the
 5   cause of death as determined by the coroner's
 6   office?
 7           A     As I recall, yes.
 8                 I remember only testifying once,
 9   but I believe there were a couple of occasions
10   where I did not agree with the conclusions that
11   were drawn by her office.
12           Q     And you wrote reports indicating
13   why it was that you disagreed with it?
14           A     I don't recall.
15                 I probably did for the case I
16   testified on, but I don't recall if I did or not
17   for the other cases.  I may have, I just don't
18   recall.
19           Q     Tell me about the other case
20   before we get into Thompson's.
21                 When was that other case that you
22   disagreed with the coroner's office?
23           A     It was about two or three years
24   ago, I believe.
25           Q     Did you ultimately give a
0035
 1                          Wetli
 2   deposition in this case?
 3           A     No, I testified in trial.
 4           Q     Was that a criminal case or a
 5   civil case?
 6           A     Civil case.
 7           Q     Who was the attorney that you
 8   worked for in that case?
 9           A     Ron Wilt, W-I-L-T.
10           Q     At that time Mr. Wilt was with the
11   law firm of Buckingham Doolittle?
12           A     Correct.
13           Q     And Mr. Wilt was representing a
14   defendant in this case, correct?
15           A     Correct.
16           Q     What was the cause of death that
17   the coroner's's office had indicated?
18           A     I believe it was asphyxia.
19           Q     And what did you conclude the
20   cause of death was?
21           A     That he died from his underlying
22   natural diseases, which I don't recall what they
23   were offhand.
24                 In my opinion, it was a natural
25   death, it was not an asphyxial death.
0036
 1                          Wetli
 2           Q     Do you recall the name of either
 3   the decedent or the physician or the hospital
 4   that Mr. Wilt was defending?
 5           A     No.  It wasn't a hospital.  I
 6   believe it was a nursing home.  And I don't
 7   recall the name of the nursing home, nor do I
 8   recall the name of the decedent on that.
 9           Q     Was it in Cuyahoga County that the
10   case went to trial?
11           A     I'm not familiar with the
12   geography.  The trial was held in Canton, Ohio.
13           Q     That was probably Stark County,
14   Stark County Court?
15           A     I have no idea.
16           Q     Do you remember the name of the
17   attorney that was representing the patient and
18   in the nursing home?
19           A     No.
20           Q     The other cases besides the
21   Thompson case that you disagreed with Dr.
22   Balraj, were those all civil cases?
23           A     Yes.
24           Q     Do you remember the names of any
25   of the attorneys that you were consulted by in
0037
 1                          Wetli
 2   connection with those cases?
 3           A     I believe one of the cases was
 4   with Ron Wilt, and I believe there was another
 5   case or two that I don't recall who it was.
 6           Q     Is it your testimony that in
 7   Mr. Wilt's case, in the case that he hired you,
 8   you testified at trial, but you don't recall
 9   giving a deposition?
10           A     That's correct.
11           Q     In the other cases, at least one
12   of them for Mr. Wilt, you disagreed with the
13   Cuyahoga County Coroner's Office, but you do not
14   believe you testified by deposition or at trial?
15           A     That's correct.
16           Q     Do you believe that you wrote a
17   report for that other case?
18           A     I don't recall.  I may have, I
19   just don't recall.
20           Q     I know that you keep an index or a
21   book of your cases, a logbook of your cases?
22           A     Correct.
23           Q     And you still do that?
24           A     Yes.
25           Q     Do you have your logbook with you
0038
 1                          Wetli
 2   today?
 3           A     No.
 4           Q     I had issued a notice to take
 5   depositions, which asked for you to bring with
 6   you certain items, one of which would be any
 7   medical literature that you have reviewed which
 8   supports the opinions or any medical literature
 9   that you will comment on at trial.
10                 And I don't see any medical
11   literature with you today.
12                 Is there any medical literature
13   that you intend to reference as being supportive
14   of any of the opinions that you hold in this
15   case?
16           A     At this moment I don't intend to.
17   If I am asked to between now and the trial date,
18   yes, but if I am not asked, I won't.
19           Q     I understand.  That's why I asked
20   in terms of arriving at the opinions that you
21   wrote in your report, you didn't do any medical
22   research to locate any literature that might
23   support your opinions?
24           A     No.
25           Q     Since the time of your report and
0039
 1                          Wetli
 2   up until now, have you come across any
 3   peer-reviewed journals or sections in any well
 4   respected pathology texts, either forensic or
 5   otherwise, that you would cite to me as
 6   supporting any of the opinions that you hold in
 7   this case?
 8           A     Well, I have a whole file on the
 9   subject of articles, peer-reviewed articles that
10   would support my position, but I did not
11   specifically reference any of those in coming to
12   my conclusions or in writing my opinion.
13           Q     As you sit here right now, there
14   are no specific journal articles or references
15   that you have relied upon in part to support
16   your opinions?
17           A     Correct.
18           Q     Nor are there any issues as you
19   are sitting here right now that you intend to
20   reference as being supportive of the opinions
21   that you hold, that you intend to give at the
22   trial of this case?
23           A     That's correct.
24           Q     Did Mr. Hupp or someone from his
25   office provide you with a copy of this notice to
0040
 1                          Wetli
 2   take deposition?
 3           A     No.
 4           Q     If you were asked to bring
 5   literature that supports the opinions that you
 6   hold in this case or intend to provide at the
 7   trial of this matter, would you have brought any
 8   literature with you?
 9           A     That's a two-part question.
10                 The first part of the question,
11   could I have brought literature with me to
12   support my position, the answer is yes.
13                 Do I intend to use any of this at
14   trial, the answer is no.
15           Q     Your logbook of cases, when was it
16   last updated?
17           A     It's continually being updated as
18   I do work on cases and those cases come in.
19                 I keep track of my time in that
20   logbook basically.
21           Q     I'm sorry?
22           A     I keep track of the time in the
23   logbook for billing purposes, if nothing else.
24           Q     But that logbook also reflects the
25   name of the case, the name of the attorney?
0041
 1                          Wetli
 2           A     Yes.
 3           Q     The courtroom?
 4           A     Not the courtroom, no.
 5           Q     The location of the case, I should
 6   say?
 7           A     Yes.
 8           Q     What I would ask you to do is to
 9   provide your most recent logbook to Mr. Hupp.
10                 Will you do that?
11           A     No.
12           Q     Why?
13           A     No reason to.
14                 My logbook, I have to look at
15   that.  I use it every day.
16                 I'm not going to copy it, no.
17                 You are talking about a fairly
18   thick book.  If you could be more specific as to
19   what you really want, I could probably help.
20           Q     Have you ever testified in federal
21   court?
22           A     Yes, a number of times.
23           Q     You had to provide a Rule 26
24   disclosure statement, correct?
25           A     Correct.
0042
 1                          Wetli
 2           Q     That was based upon information
 3   from your logbook?
 4           A     No.
 5           Q     What did you use to come up with
 6   the Rule 26 disclosure statement?
 7           A     I have the opinion letter, the
 8   curriculum vitae, fee schedule, list of court
 9   testimony since 1995.
10           Q     Current as of what?
11           A     As of today.
12           Q     Would you provide Mr. Hupp with
13   your most recent Rule 26 disclosure statement?
14           A     Sure.
15           Q     Just for the record, you are
16   telling me that you would refuse, absent a court
17   order, to produce the logbook on your cases?
18           A     Yes.
19           Q     Have you ever been subpoenaed or
20   required to produce the logbook?
21           A     Nobody has ever asked me before.
22           Q     I'm the first lawyer that ever
23   asked you for a logbook?
24           A     Correct.
25           Q     Has anyone ever seen your logbook?
0043
 1                          Wetli
 2   Has the attorney on the other side of the case,
 3   have they ever seen your logbook?
 4           A     No.
 5           Q     Has the attorney that hired you
 6   ever seen your logbook?
 7           A     No.
 8                 The only thing that ever happened,
 9   as far as any logbook is concerned, I have been
10   asked if I would Xerox or copy one page
11   pertaining to that particular case, but not for
12   all the cases I have had.
13           Q     How long have you been keeping
14   that logbook?
15           A     Since 1995.
16           Q     Are you critical of the coroner's
17   office in this case in terms of the methodology
18   used in performing the gross and microscopic
19   examination upon Mr. Thompson?
20                       MR. HUPP:  Objection to the
21               form of the question.
22                       Go ahead.
23           A     I have certain criticisms of the
24   autopsy, yes.
25           Q     Do those criticisms, do they rise
0044
 1                          Wetli
 2   to the level of feeling as if, do they rise to
 3   the level of stating that the autopsy was not
 4   done in accordance with reasonably accepted
 5   standards for a pathologist?
 6                       MR. HUPP:  Objection.
 7                       Go ahead.
 8           A     That's a pretty broad question,
 9   actually.
10                 There are no, as far as I know,
11   there are no published standards as far as the
12   actual autopsy is concerned, as far as technique
13   and that type of thing is concerned.
14                 It's a very hard question to
15   answer.  You say a pathologist.  You are also
16   including in there hospital based pathologists
17   and so it's really impossible to answer the
18   question.
19           Q     I'm going to ask you when we get
20   into the autopsy specific questions relative to
21   areas that you have, what I refer to as
22   criticisms, and maybe we will be able to tackle
23   it when we get to talking about the autopsy,
24   okay?
25           A     Okay.
0045
 1                          Wetli
 2           Q     Your report is written with an
 3   address of 2 Berkery Place, B-E-R-K-E-R-Y?
 4           A     Correct.
 5           Q     Is that your home address?
 6           A     Yes.
 7           Q     What is your professional address?
 8           A     Same thing.  I have a home office,
 9   basically.
10           Q     Do you share that home office with
11   someone else?
12           A     My wife on occasion.  She will use
13   it.  That's it.
14           Q     What about Geetha Natarajan?
15           A     That's my wife.
16           Q     Is it Geetha?
17           A     Geetha.
18           Q     Geetha Natarajan is a retired
19   Middlesex, New Jersey medical examiner?
20           A     Right.
21           Q     Do the two of you operate a
22   business from your home?
23           A     No.
24           Q     Since you retired in 2006, as a
25   medical examiner, do you perform autopsies?
0046
 1                          Wetli
 2           A     I can and I have.
 3           Q     How many since August of 2006 --
 4           A     One.
 5           Q     -- have you performed?
 6           A     One.
 7           Q     Where was that?
 8           A     In New York.  Long Island.
 9           Q     You were hired as a private
10   pathologist to do an autopsy?
11           A     Correct.
12           Q     Were you hired because the medical
13   examiner or the coroner in New York City
14   wouldn't do an autopsy in that case?
15           A     No.
16           Q     What was the reason, as you
17   understood it, that you were hired as opposed to
18   the coroner or the medical examiner doing the
19   autopsy?
20           A     It was not a medical examiner's
21   case.
22           Q     By statute?
23           A     Correct.
24           Q     What did you determine in that
25   case to be the cause of death?
0047
 1                          Wetli
 2           A     Heart disease.
 3           Q     Was there any litigation that was
 4   involved in that matter?
 5           A     Yes.
 6           Q     Who did you testify for in this
 7   case?
 8           A     I didn't.
 9           Q     Did you give a deposition?
10           A     No.
11           Q     Did you write or prepare an
12   official autopsy report?
13           A     Yes.
14           Q     Was that then filed as an official
15   record in New York City?
16           A     No.
17           Q     What happened when you provided, I
18   guess what I would refer to as a private
19   autopsy, what happens with the report?
20           A     It goes to the attorney.
21           Q     So it was an attorney that asked
22   you to do the autopsy?
23           A     Correct.
24           Q     Was this relative to an insurance
25   claim?
0048
 1                          Wetli
 2           A     No.
 3           Q     Do you know what the purpose of
 4   doing the private autopsy was, other than it
 5   wasn't deemed to be a coroner's case?
 6           A     It was medical malpractice
 7   litigation and this was for the plaintiff's
 8   attorney, whose internal medicine consultant
 9   wanted to know more details about the type of
10   heart disease.
11           Q     How long ago was that, sir?
12           A     About a year.
13           Q     Since August of 2006, with this
14   one autopsy aside, have you performed any other
15   autopsies?
16           A     No.
17           Q     Do you have hospital privileges at
18   any hospitals currently?
19           A     No.
20           Q     When is the last time you had
21   privileges, either courtesy admitting or
22   otherwise, at a hospital?
23           A     1976.
24           Q     Are you licensed to practice
25   medicine?
0049
 1                          Wetli
 2           A     Yes.
 3           Q     Would that be in New Jersey or New
 4   York?
 5           A     I have active medical licenses in
 6   the States of New York and New Jersey and an
 7   inactive medical license in the State of
 8   Florida.
 9           Q     Do you currently practice
10   medicine?
11                       MR. HUPP:  Objection to the
12               form of the question.
13                       Go ahead.
14           A     If performing autopsies is
15   considered the practice of medicine, in that
16   sense, yes.
17                 In reality, most of my time today
18   is spent as a consultant.
19           Q     Is it fair to say that with the
20   exception of the one autopsy that you did, all
21   of your work since you have retired has been in
22   connection with consulting on legal cases?
23           A     Yes.
24           Q     So essentially 100 percent of your
25   income currently is from doing work as a private
0050
 1                          Wetli
 2   consultant?
 3           A     Except for retirement income, yes.
 4           Q     I'm not asking about that.
 5                 Other than your retirement income,
 6   your earned income now is 100 percent from
 7   serving as someone who is hired as a consultant
 8   in connection with your forensic pathology work?
 9           A     Correct.
10           Q     To provide opinions as it relates
11   to causes of death?
12           A     Correct.
13           Q     Do you have a name for your
14   business?
15           A     No.  Sole proprietor.
16           Q     You are not board certified in
17   radiology, correct?
18           A     Correct.
19           Q     You have never practiced as a
20   radiologist?
21           A     No.
22           Q     Did you do a residency in
23   radiology?
24           A     No.
25           Q     A fellow in radiology?
0051
 1                          Wetli
 2           A     No.
 3           Q     Ever sit for any certifications as
 4   a radiologist?
 5           A     No.
 6           Q     Have you ever worked, at any time
 7   since becoming licensed to practice medicine, in
 8   a hospital as a radiologist?
 9           A     No.
10           Q     And certainly you do not hold
11   yourself out as an expert in the field of
12   radiology, correct?
13           A     Correct.
14           Q     You are not board certified in
15   internal medicine?
16           A     Correct.
17           Q     Never practiced as an internist?
18           A     Correct.
19           Q     Same with regard to
20   gastroenterology?
21           A     Correct.
22           Q     Same with regard to infectious
23   disease?
24           A     Correct.
25           Q     Same with regard to general
0052
 1                          Wetli
 2   surgery?
 3           A     Correct.
 4           Q     Same with regard to neurology?
 5           A     Correct.
 6           Q     All of those areas where you said
 7   same with regard to, you have never completed an
 8   internship or residency or fellowship in any of
 9   those areas, correct?
10           A     Correct.
11           Q     Never practiced as a surgeon or an
12   infectious disease physician or a
13   gastroenterologist or radiologist?
14           A     Or neurologist, correct.
15           Q     I just wanted to see if you were
16   listening to me.
17           A     I know.
18           Q     And I take it you do not hold
19   yourself out as an expert in those areas?
20           A     Correct.
21           Q     Have you published anything, per
22   reviewed or otherwise, that would relate to the
23   subject of deaths from or associated with
24   nocturnal seizures?
25           A     I don't believe so.
0053
 1                          Wetli
 2           Q     Have you ever --
 3           A     Excuse me.
 4           Q     Go ahead.
 5           A     Are you counting expert opinion
 6   reports?
 7           Q     No, I'm talking about
 8   peer-reviewed or non-peer-reviewed articles that
 9   you have written, not for lawyers, but for
10   educating other physicians.
11           A     The answer to that is no.
12           Q     Have you served as an expert in
13   other cases where you have written reports
14   relative to the association of nocturnal
15   seizures and death?
16           A     Yes.
17           Q     On how many occasions?
18           A     Two reports and a third case in
19   which there was no report, that I recall.
20           Q     In those two cases that you wrote
21   reports relative to nocturnal seizures, was it
22   your opinion that the nocturnal seizure was the
23   cause of death?
24           A     Yes.  Complications of those
25   seizures, yes.
0054
 1                          Wetli
 2           Q     Such as perhaps like aspiration?
 3           A     Such as an acute psychotic
 4   reaction.
 5           Q     Were any of those cases in
 6   connection with excited delirium?
 7           A     Yes.
 8           Q     Were both of those cases in
 9   connection with excited delirium?
10           A     Yes.
11           Q     Where were those cases, where did
12   the patients die, what state?
13           A     Colorado and Tennessee.
14           Q     Will those cases be reflected in
15   your Rule 26 disclosure?
16           A     The one from Colorado will not be.
17   I don't believe the one from Tennessee will
18   either.
19                 I don't think I gave a deposition
20   in this case.  It hasn't gone to trial yet.
21           Q     Have you written reports in both
22   of those cases?
23           A     Yes.
24           Q     Do you know in the Tennessee case
25   whether or not your report was exchanged with
0055
 1                          Wetli
 2   the other attorney?
 3           A     I presume it was, but I don't know
 4   for sure.
 5           Q     Let me just ask you about the
 6   Colorado case because to the extent that your
 7   report has not been produced in that other case,
 8   I don't want to put you in a situation where you
 9   may be considered a consultant and not having
10   been identified as a trial witness.
11                 So on the Colorado case, tell me
12   who was the attorney that you wrote the report
13   for?
14           A     I honestly don't remember.
15           Q     Did you say your deposition was
16   taken in that case?
17           A     No, it was not.
18                 It settled before the deposition
19   was taken.
20           Q     Do you remember the name of the
21   party?
22           A     I'm sorry.  My deposition was
23   taken in this case, I believe.  Yes.  My
24   deposition was taken in this case.
25           Q     And the name of the lawyer?
0056
 1                          Wetli
 2           A     I don't remember.  That I don't
 3   remember.
 4                 I remember the name of the victim
 5   was Gates, G-A-T-E-S.
 6           Q     Was that in Denver, Colorado?
 7           A     No.  I believe it was near Denver,
 8   I think it was like north of Denver.  I don't
 9   remember the city.
10           Q     Can you help me out with any
11   identifying information other than the case is
12   in Colorado in terms of that case?
13           A     Not offhand, I can't, no.
14           Q     Would you have that information in
15   your logbook?
16           A     Sure.
17           Q     So that without you providing me
18   with the logbook, which I have yet to arm
19   wrestle you to get, will you at least provide
20   the name of the attorney and perhaps the name of
21   the case for that.
22                 And then see if you have been
23   identified as a witness that will be called in
24   the Tennessee case and, if so, would you provide
25   me with the name of the attorney and the name of
0057
 1                          Wetli
 2   that case?
 3                       MR. HUPP:  This is limited
 4               to the seizures causing death cases?
 5                       MR. MISHKIND:  Yes.
 6           A     So you are asking me to provide
 7   you with the names in both cases and the
 8   attorneys in both cases?
 9           Q     Right.  After checking to make
10   sure that you have been identified in the
11   Tennessee case as someone that's going to be
12   called as a witness.
13           A     You can call the attorney and you
14   can ask him that question.
15           Q     That's true.  I don't want to have
16   anything -- in fairness to you, Doctor, I don't
17   want to put that on the record.
18                 If you give me the name of the
19   attorney off the record, I can check and see
20   whether you have been identified as an expert,
21   unless you want to blurt out his name on the
22   record.
23                 But I think we both would agree
24   until it's been determined if he has been
25   identified and I --
0058
 1                          Wetli
 2                       MR. HUPP:  Let's go off the
 3               record for a second.
 4                      (Discussion off the record.)
 5                       MR. MISHKIND:  On the
 6               record.
 7   BY MR. MISHKIND:
 8           Q     Looking at your CV, Doctor, it
 9   looks like the last time you did any work at the
10   request or on behalf of the government in some
11   connection would have been in 1998, other than
12   in your official capacity as a medical examiner?
13           A     No.
14           Q     When is the last time you believe
15   you did any consulting on behalf of the
16   government more recently than 1998?
17           A     I do consulting all the time with
18   the government.
19                 I do Corporation Counsel of New
20   York.
21           Q     Sorry?
22           A     Corporation Counsel for New York
23   City, for Chicago.  I'm not sure how to answer
24   your question.
25                 I do a lot of consulting work with
0059
 1                          Wetli
 2   the Defenders Association, both federal and
 3   state level.
 4                 So I'm not sure exactly what you
 5   want, what you are inquiring about.
 6           Q     When was the last time you
 7   testified as an expert witness in any
 8   governmental matters, where the United States
 9   government or local or state government was
10   pursuing a matter that required your expertise?
11           A     Probably a month or so ago.
12           Q     Where was that?
13           A     New York City.
14           Q     What was that in connection with?
15           A     Civil case involving Corporation
16   Counsel.  Corporation Counsel was defending New
17   York.
18           Q     When you say Corporation Counsel
19   that was defending New York City, what does that
20   mean?
21           A     Corporation Counsel attorneys are
22   the ones that defend the municipality, in this
23   case, New York City.
24           Q     Was that a police case involving a
25   police death?
0060
 1                          Wetli
 2           A     No.
 3           Q     Was it a police issue, were the
 4   police involved in this case?
 5           A     Yes.  Police were involved.  It
 6   was a death involved, but it was not at the
 7   hands of the police.
 8           Q     You wrote the Atlas of Forensic
 9   Pathology?
10           A     Correct.
11           Q     Are there two different atlases
12   that you have written?
13           A     No.  One book entitled Practical
14   Forensic Pathology, which is predominantly
15   directed at hospital pathologists who find
16   themselves having to handle forensic cases, that
17   was the Atlas of Forensic Pathology.
18           Q     Doctor, this excited delirium that
19   I mentioned before, there is controversy, is
20   there not, as to whether or not excited delirium
21   is real?
22           A     No.
23           Q     Are you saying that all medical
24   examiners agree that there is evidence based,
25   scientific evidence to support excited delirium
0061
 1                          Wetli
 2   as a real phenomenon?
 3                       MR. HUPP:  Objection.
 4           A     It's in the literature.  There is
 5   only one medical examiner that I know of that
 6   says it doesn't exist.
 7                 But as far as I know, everybody
 8   else acknowledges it.  It's a psychiatric
 9   diagnosis and it's in the literature.
10           Q     What about the American Medical
11   Association, does it recognize it as a cause of
12   death?
13           A     I have heard it doesn't.
14                 Again, I don't know, the American
15   Medical Association publishes a list of accepted
16   diagnoses.  It's a political organization.  I
17   could care less what it says.
18           Q     You could care less what the
19   American Medical Association says?
20           A     Yes, about that issue anyway.
21           Q     Are you aware of any other medical
22   examiners or physicians that disagree with your
23   opinion that excited delirium is a recognized
24   cause of death?
25                       MR. HUPP:  Objection.
0062
 1                          Wetli
 2           A     I don't know.
 3                 I know it's a topic of discussion
 4   and peer review presentations at the National
 5   Association of Medical Examiners meetings.
 6                 I'm sure that a lot of cases I
 7   look at that I frequently put are of excited
 8   delirium in association with restraint or
 9   conducted electrical weapons or something like
10   that.
11           Q     And many times these excited
12   delirium issues come up in the setting where a
13   patient, where a decedent had been previously
14   restrained or under some type of physical
15   influence or physical restraints by police,
16   correct?
17           A     Police, citizens or medical
18   personnel, yes.
19           Q     And you have testified in your
20   position that excited delirium is a recognized
21   cause of death, correct?
22           A     Correct.
23                       MR. HUPP:  Objection.
24           Q     And it's been in cases where there
25   has been evidence of some restraint or physical
0063
 1                          Wetli
 2   force that had been exerted by police on the
 3   decedents, correct?
 4           A     Police, medical personnel and
 5   citizens and the struggle and the restraints is
 6   part of the syndrome, not entirely.
 7                 For example, the cases where
 8   people jump off buildings, drown or get hit by
 9   cars are generally not excited delirium, even
10   though they might be the proximate cause of
11   their death.
12           Q     You have heard people that are on
13   the opposite side of your position on the
14   excited delirium argue that your position is
15   that the physical restraint exerted by the
16   decedent was just a coincidence as opposed to it
17   being the proximate cause of the decedent's
18   death, correct?
19                       MR. HUPP:  Let me show a
20               continuing objection to this line of
21               questioning for relevancy purposes.
22                       Go ahead, Doctor.
23           A     I didn't understand the question.
24           Q     I will share with you a quote and
25   you tell me whether you have heard this before.
0064
 1                          Wetli
 2                 "Why doesn't excited delirium
 3   happen when somebody is not restrained?  Do you
 4   know what it means it was a coincidence?  I do
 5   not believe in coincidences."
 6                 Have you heard that statement made
 7   before?
 8           A     No, not that I recall.
 9           Q     Are there those that take the
10   position that excited delirium is an
11   extraordinary coincidence?
12           A     I have never heard that, no.
13           Q     And you certainly, as someone that
14   lectures and presents yourself as an expert on
15   excited delirium, keep up with the literature in
16   this area, correct?
17           A     Sure.
18           Q     You have not seen articles or
19   references to your opinion as being just
20   coincidental or extraordinarily coincidental
21   that the force that had been exerted by the
22   police or the trauma that had been exerted by
23   the police was just coincidental as opposed to
24   being the cause of the patient's death?
25           A     There are those who think
0065
 1                          Wetli
 2   restraining someone in a prone position as the
 3   cause of death, but that has not been documented
 4   in a number of peer-reviewed literature, it's
 5   been debunked.
 6           Q     Other than the reports that you
 7   have written on that nocturnal seizure in the
 8   cases that we are going to talk about that you
 9   are going to get information on in Colorado and
10   Tennessee, have you written on the topic of
11   sepsis-related deaths?
12           A     Not that I recall, no.
13           Q     Have you ever written or lectured,
14   peer reviewed or otherwise, so is it fair for me
15   to put that all in a category in terms of
16   professional presentations?
17           A     Sure.
18           Q     On the topic of peritonitis
19   leading to abdominal compartment syndrome?
20           A     No.
21           Q     Have you ever written, lectured,
22   provided peer-reviewed or non-peer-reviewed
23   information that would relate to complications
24   of peritonitis leading to sepsis, leading to
25   SIRS, leading to death?
0066
 1                          Wetli
 2           A     No.
 3           Q     What is SIRS?
 4           A     I just heard the term a little
 5   while ago.  It's not a term I'm familiar with.
 6   Something about sudden death from sepsis,
 7   something like that.  It's a clinical term.
 8           Q     And a clinical term would not be
 9   relevant to you as a forensic pathologist, true?
10           A     No, that's not true.  Clinical
11   terms are important.
12           Q     But you are not familiar with what
13   SIRS is?
14           A     No.
15           Q     Have you testified in Cuyahoga
16   County in a courtroom other than for the case
17   that we referred to with regard to Mr. Wilt?
18                       MR. HUPP:  That wasn't in
19               Cuyahoga County.
20           Q     That's correct.  Stark County.
21                 Have you ever testified in
22   Cuyahoga County, Cleveland, Ohio?
23           A     Yes, I believe so.
24                 I'm not sure.  I testified most
25   recently in Ohio, I believe it was, I know I
0067
 1                          Wetli
 2   flew into Cleveland, I believe it was Cleveland
 3   where I testified.
 4           Q     Was it in a civil case or criminal
 5   case?
 6           A     Civil.
 7           Q     Who were you working for?
 8           A     City of Akron.
 9           Q     That would probably be Summit
10   County, but you may have flown into Hopkins and
11   then --
12           A     I don't recall.  You are
13   absolutely right, now that I recall.
14                 Someone picked me up at the
15   airport and drove about 40 minutes or so to go
16   to wherever I had to go.
17           Q     That was a civil case?
18           A     Right.
19           Q     What was the case about?
20           A     The Summit County medical examiner
21   had three cases of excited delirium where they
22   issued a certificate of death with a
23   contributory cause of the application of
24   conducted electrical weapons.
25                 And the City of Akron and Taser
0068
 1                          Wetli
 2   International Corporation sued the Summit County
 3   medical examiner for that reason.
 4           Q     And the essence of your testimony
 5   was what?
 6           A     That the conducted electrical
 7   weapons did not have any contribution to the
 8   death.
 9           Q     In terms of medical malpractice
10   cases, I know you testified well over 1,000
11   times, perhaps over 2,000 times throughout your
12   career in primarily criminal cases, correct?
13           A     Up to 1995, that's correct.
14           Q     Since 1995 you have testified in
15   civil cases on average of how many times a year?
16                 Just to make it easy, when I say
17   testified, you can include deposition and
18   courtroom testimony?
19           A     You will see that when you get my
20   Rule 26 report I would say about two dozen times
21   a year.
22           Q     What?
23           A     Two dozen times a year deposition
24   reports.
25                 I'm sorry, I'm probably lumping
0069
 1                          Wetli
 2   criminal cases in there, too.
 3           Q     Medical malpractice cases where
 4   there was an issue of standard of care and then
 5   ultimately whether the standard of care or the
 6   negligence on the part of the doctor was the
 7   proximate cause of death, on how many open cases
 8   have you served, been hired by one side or the
 9   other in those types of cases?
10           A     It's not unusual that I'm involved
11   with medical malpractice cases, but not
12   involving the standard of care.
13                 It's usually involving causation,
14   not standard of care I will testify about.
15           Q     I know you are not going to
16   provide standard of care.
17           A     Right.
18           Q     You don't spend more than
19   50 percent of, in fact, you don't spend any of
20   your professional time in the active clinical
21   practice of medicine?
22           A     Correct.
23           Q     And haven't for years and years
24   and years?
25           A     Correct.
0070
 1                          Wetli
 2           Q     But I'm talking about where there
 3   was an issue of was a doctor or hospital or a
 4   nurse or a nursing home negligent leading to a
 5   death.
 6                 How many times have you been an
 7   expert in those cases on the issue of cause of
 8   death or causation?
 9           A     I don't really know.
10                 All I know is that I frequently
11   deal with medical malpractice cases, but I never
12   keep track of how many I average.
13           Q     In terms of the percentage when
14   you are testifying, what percentage is on behalf
15   of the defendant, such as Dr. Melamud in this
16   case, as opposed to a patient?
17           A     All I can say is in civil cases
18   about 60 percent of the time for the defense and
19   40 percent of the time for the plaintiff.
20           Q     Since you have retired from the
21   medical examiner's office, have the number of
22   cases that you have received for your forensic
23   witness service, has that increased?
24           A     No.  It's been about the same.
25           Q     So 60 percent of the time you are
0071
 1                          Wetli
 2   being retained by a defense attorney, 40 percent
 3   of the time you are being retained by a
 4   plaintiff's attorney?
 5           A     In civil cases, right.
 6           Q     How many new cases do you get a
 7   year in the civil area?
 8           A     I don't know, because I never
 9   count them that way.  I get about a hundred, a
10   little over a hundred cases a year, both
11   criminal and civil.
12           Q     Can you tell me what percentage of
13   those cases are civil?
14           A     Probably 85 percent.
15           Q     Have you ever in the State of Ohio
16   served as an expert witness for a plaintiff's
17   attorney in any medical, in any civil cases?
18           A     I honestly don't know.  I may
19   have.  I may not have, I don't know.
20           Q     As you are sitting here right now,
21   are there any that come to mind?
22           A     No.  Well, excuse me.  The Summit
23   County case was a plaintiff.
24           Q     On behalf of the City of Akron?
25           A     Correct.
0072
 1                          Wetli
 2           Q     What about in private litigation
 3   where a family was bringing a claim against a
 4   doctor or hospital or a nursing home in the
 5   State of Ohio, any cases that you can think of
 6   that you have served as an expert in that
 7   capacity?
 8           A     Not that I recall.  I may have, I
 9   just don't know.
10           Q     Your name, is it provided through
11   any expert witness companies?
12           A     No, not to my knowledge.
13           Q     Do you have an internet site?
14           A     No.
15           Q     Can you tell me what the American
16   Institute of Forensic Education is?
17           A     I'm not sure.
18                 I think it's an organization of
19   forensic nurses and they made me an honorary
20   member or something like that.
21                 I have done work for the
22   Organization of Forensic Nurses in the case that
23   I recall.
24                 Otherwise, I don't know.
25           Q     You don't advertise?
0073
 1                          Wetli
 2           A     No.
 3           Q     Have you ever advertised?
 4           A     No.
 5           Q     Has your medical license ever been
 6   suspended, revoked or called into question?
 7           A     No.
 8           Q     Have you ever been the subject of
 9   any disciplinary investigation before any local,
10   state or national medical board?
11           A     No.
12           Q     Your charge for testifying at
13   trial for a full day away from New York, what do
14   you charge?
15           A     Doesn't matter for how long, full
16   day or not, it's $4,000 a day.
17           Q     I'm sorry, what?
18           A     $4,000 for a day with court
19   testimony.
20           Q     And if you come to Ohio to
21   testify, is that what you have charged in the
22   past for a full day?
23           A     For five minutes or full day, does
24   not matter.  It's $4,000.
25           Q     How long has it been $4,000 for
0074
 1                          Wetli
 2   the full day?
 3           A     Several years.
 4           Q     Has the amount that you charge
 5   gone down?
 6           A     No.
 7           Q     $4,000 for a full day has been, if
 8   anything, it was less than that before, you
 9   increased it at some point?
10           A     Correct.
11           Q     And per hour, how much do you
12   charge to review cases?
13           A     $450.
14           Q     For deposition, how much do you
15   charge per hour?
16           A     It's flat rate of $1,875 and $450
17   an hour for anything after four hours.
18           Q     When did that become flat rate?
19           A     Several years ago.
20           Q     Several as in when?
21           A     Three or four years ago.
22           Q     What was it before that, has it
23   always been a flat rate?
24           A     I honestly don't remember.
25                 I finally came up with a half day
0075
 1                          Wetli
 2   rate basically because that's usually what it
 3   would take me for a deposition.
 4                 It's standard flat half-day rate
 5   and 450 for anything after four hours.
 6           Q     Have you kept track of the time
 7   that you put in on this case?
 8           A     Yes.
 9           Q     Do you know how many hours you
10   have put in in total up until you and I met for
11   the first time?
12           A     It would be about 15 hours.
13           Q     Doctor, your report, which is
14   marked as exhibit, it's actually marked twice,
15   as Exhibit 1, and then attached to Exhibit 3, do
16   you stand by the opinions that you expressed in
17   your report?
18           A     Yes.
19                       MR. HUPP:  Time out.
20                       (Whereupon, at 2:20 o'clock
21               p.m., a recess was taken to 2:30
22               o'clock p.m.)
23                       (The deposition resumed with
24               all parties present.)
25   C H A R L E S   V.     W E T L I,  resumed and
0076
 1                          Wetli
 2          testified further as follows:
 3   BY MR. MISHKIND:
 4           Q     Was there any information, Doctor,
 5   that you had requested of counsel that you have
 6   not received?
 7           A     No.
 8           Q     Is there any additional
 9   information that you felt you needed in order to
10   arrive at the opinions that you have arrived at?
11           A     No.
12           Q     Is there any additional
13   information that you would have liked to have
14   had that would have further supported your
15   opinions?
16           A     Yes.
17           Q     What?
18           A     A more detailed, again, this is
19   about the autopsy itself, which I think should
20   have been done or not done, including certain
21   photographs.
22           Q     Including what?
23           A     Certain photographs.
24           Q     Photographs of what?
25           A     Of internal photographs of the
0077
 1                          Wetli
 2   abdominal cavity.
 3           Q     And what might those have shown?
 4           A     The lack of peritonitis.
 5           Q     Or the existence of peritonitis?
 6           A     I don't believe so, no.  I don't
 7   believe there was any peritonitis here.
 8           Q     If you are looking at the, and
 9   there is one slide for the colon, correct?
10           A     Correct.
11           Q     And presumably what you looked at,
12   and so it should be the same thing that any
13   qualified pathologist, whether it be a coroner
14   or perhaps even a gastric pathologist should
15   see, correct?
16           A     Not a coroner, but a gastric
17   pathologist, yes.
18           Q     Do you have any special training
19   in the area of gastric pathology?
20           A     No.
21           Q     But suffice it to say what you
22   would see on that slide, and there is one slide
23   for the colon, looking at the area of where the
24   perforation of the colon was, what you should
25   report from a scientific standpoint in terms of
0078
 1                          Wetli
 2   the level of necrosis, if any, the level of any
 3   microscopic evidence of, well, the evidence of
 4   microscopic findings in the colon, what you
 5   should report should be the same thing that
 6   anybody else looking at it objectively should
 7   report, correct?
 8           A     Correct.
 9           Q     Again, when we get to the autopsy
10   questions, we will talk about that.
11                 But aside from photographs of the
12   peritoneum --
13           A     Correct.
14           Q     -- is there anything else that you
15   would like to have seen that you believe would
16   have been helpful to your opinions?
17           A     Yes.
18           Q     What else?
19           A     Examination of the inside of the
20   mouth and of the tongue.
21           Q     We can agree, can we not, that at
22   the time of autopsy, whether it was ignored or
23   not, there is no description by the individual
24   that did the autopsy of any lacerations or
25   injury that one would expect to see if a patient
0079
 1                          Wetli
 2   has a seizure that is significant enough to
 3   cause death, correct?
 4           A     No.  You may not find any bite
 5   marks or injuries if a person dies from a
 6   seizure, but it was obvious that it was not
 7   looked it.  It was totally ignored.
 8           Q     On what basis do you say it was
 9   obviously ignored?
10           A     Because she did a neck dissection
11   in situ.
12           Q     So I'm clear, when the patient was
13   put into the coroner's office, the coroner had
14   the full patient and was able to do a gross
15   examination of the patient?
16           A     Of course.
17           Q     And then there is a microscopic
18   exam, correct?
19           A     Correct.
20           Q     Other than the report that you
21   have, you had the slides which are the
22   microscopic findings, correct?
23           A     Correct.
24           Q     So the gross description by the
25   coroner, you have no way of saying whether or
0080
 1                          Wetli
 2   not the gross findings by the coroner were
 3   accurate or inaccurate, correct?
 4           A     I will have to take their word for
 5   it, correct.
 6           Q     Do you have any basis as you sit
 7   here now that the gross anatomical findings as
 8   described by the coroner are inaccurate?
 9           A     No.
10           Q     Did you see any evidence of injury
11   to the lips or to the tongue, lacerations, cuts,
12   bruises from the moment the patient was seen by
13   the EMS attendant all the way to the hospital
14   and up to the time of death that would be
15   consistent with what generally is seen with a
16   patient who has suffered an epileptic seizure?
17           A     First of all, I don't know that
18   people who have epileptic seizures always bite
19   their tongue or have injuries, they frequently
20   don't.
21                 But there is absolutely no
22   description anywhere of the tongue or of the
23   mouth.
24           Q     But can we agree also that there
25   is no description of any injury seen by anyone
0081
 1                          Wetli
 2   of the tongue or the mouth that would be
 3   consistent with what may be associated with a
 4   patient who has suffered a convulsive seizure?
 5           A     The records are totally silent on
 6   examination of this area or description of this
 7   area.
 8           Q     Can we agree that one of two
 9   conclusions can be reached, that all the
10   doctors, the EMT folks that saw this patient
11   either examined those areas and didn't find
12   anything clinically significant by way of cuts,
13   lacerations or bruises that would be consistent
14   with an epileptic seizure or no one examined
15   those areas to determine whether or not there
16   were cuts or bruises to those areas?
17           A     Correct.  You can't tell.
18           Q     You would expect, would you not,
19   that if there was a cut or a bruise or a
20   laceration, that is not infrequently seen in
21   patients who have an epiletpic seizure that
22   those findings are reported at least by one of
23   the multiple caregivers, correct?
24           A     I don't really know.  I have
25   never, I really don't know.  I don't know if
0082
 1                          Wetli
 2   they looked.
 3           Q     But we don't see any clinical
 4   evidence by anyone that encountered this patient
 5   from the moment he was found in his bed at home
 6   up until the time of his death of anything in
 7   the mouth, the face, the tongue, the lips, that
 8   would be consistent with some type of trauma
 9   that occurred during a seizure?
10                       MR. HUPP:  Objection.
11                       Asked and answered.
12                       Go ahead.
13           A     The records are totally silent in
14   making that judgment.
15           Q     I recognize that there is nothing
16   that shows it, but there's also no indication
17   that there is any injury to those areas,
18   correct?
19           A     Nothing says it was even examined,
20   so you can't say anything about injury one way
21   or the other.
22           Q     Are you suggesting on the record
23   that everybody involved in this case failed to
24   examine those areas?
25           A     They apparently, they didn't
0083
 1                          Wetli
 2   describe it.
 3           Q     That's your opinion, that
 4   everybody from the EMS to the emergency room all
 5   the way through the time that he was pronounced
 6   failed to examine those areas?
 7           A     It would appear that way.  At
 8   least they didn't describe it one way or the
 9   other.
10           Q     That's your opinion as an expert
11   witness in this case, that they failed to
12   examine those areas, including the coroner
13   failed to examine?
14           A     The coroner certainly did.
15           Q     Let's go back.
16                 Before he died, your opinion is
17   based upon your review of the case, that the
18   EMT, the emergency room doctors, the nurses, the
19   attending, the consultants all failed to examine
20   the lips and the tongue and the face for any
21   evidence of lacerations or injuries that would
22   be consistent with a patient experiencing a
23   seizure; is that your testimony?
24           A     Yes.  But I just want to check one
25   consultant case before I answer.
0084
 1                          Wetli
 2           Q     Go right ahead.
 3           A     Right.  Doesn't seem like anybody
 4   looked in the mouth or specifically the tongue
 5   for any injuries suggestive of a seizure
 6   disorder.
 7           Q     And that in your opinion would be
 8   an incomplete examination?
 9                       MR. HUPP:  Conjecture.
10                       Go ahead.
11           A     Not necessarily.  Depends what
12   people are looking for and what they are doing.
13                 I don't think it's necessarily an
14   incomplete examination.  It's something that I
15   would like to have seen, but wasn't done.
16                 I'm not saying that it's, I think
17   it's certainly something that should have been
18   done by the coroner, but I can't answer the
19   question.
20           Q     Certainly, Doctor, if someone
21   suspected along the way that the patient had had
22   a seizure significant enough to have caused him
23   to experience anoxic or hypoxic injury, you
24   would expect that a thorough and comprehensive
25   exam would include looking at the tongue, the
0085
 1                          Wetli
 2   mouth, the lips, to see if there was any sign of
 3   stigmata, of a seizure?
 4           A     Only the coroner or medical
 5   examiner.  I would not expect that of a
 6   clinician.
 7           Q     Anything beside the, what you have
 8   told me about relative to the autopsy that you
 9   would like to have seen to further solidify, if
10   you will, the opinions that you hold in this
11   case?
12           A     Just the examination of the tongue
13   and the photographs of the abdominal capacity.
14           Q     Anything else that you wish you
15   had been provided with that would have been of
16   some benefit?
17           A     I don't think so.
18           Q     Have you ever worked with Mr.
19   Hupp's office before?
20           A     Yes.
21           Q     On how many cases?
22           A     I believe there are two cases
23   prior to this.
24           Q     Sorry, two, sir?
25           A     Two cases, I believe.
0086
 1                          Wetli
 2           Q     Was this fine gentleman seated to
 3   your right the attorney or was there another
 4   attorney from Bonezzi, Switzer, Murphy, Polito
 5   & Hupp?
 6           A     I honestly don't remember.
 7           Q     Have you met Mr. Hupp before?
 8           A     Just today, first time.
 9           Q     This is the third case for his
10   office.
11                 Whether he was involved in the
12   case, the other cases, you just don't know?
13           A     Correct.
14           Q     Do you remember the names of the
15   other attorneys that were involved?
16           A     No, not offhand.
17           Q     Are any of these cases still
18   pending?
19           A     No, not that I know of.  I think
20   this is the only one that's still active.
21           Q     In those other cases were you
22   brought in to provide testimony that refuted the
23   findings or the conclusions of the coroner?
24           A     I don't recall.
25           Q     Do you remember anything about
0087
 1                          Wetli
 2   those other cases?
 3           A     No.
 4           Q     Did you provide deposition
 5   testimony in those other cases?
 6           A     I don't believe so.
 7           Q     Did you write reports in those
 8   cases?
 9           A     I don't recall.
10           Q     In your log of cases that you
11   won't give me unless I arm wrestle with you, you
12   will have --
13           A     I can find those, I usually keep
14   cases.
15                 I would say I keep, obviously I
16   keep cases that are currently active, not a
17   logbook, but basically a file cabinet for at
18   least five years, and if a case is still active
19   before that, I will keep that case as well.
20                 So if the case in 2002 has been
21   resolved, I wouldn't have a record of the case.
22   I would have a record of it as far as the
23   citation goes and who I spoke with, that type of
24   thing, I wouldn't have anything on file.
25           Q     But on your log of cases though,
0088
 1                          Wetli
 2   if you and I were sitting in your house looking
 3   at your log of cases and look back, would you be
 4   able to discover who from Bonezzi, Switzer,
 5   Murphy, Polito & Hupp you had worked for?
 6           A     Oh, yes.
 7           Q     And that wouldn't be that much of
 8   a problem for you --
 9           A     No, I could find out.
10           Q     -- to find that information?
11                 And it would also have the name of
12   the case?
13           A     Correct.
14           Q     So that you can do?
15           A     Yes.
16           Q     That you will do for me?
17           A     If you wish.
18           Q     I wish.  Thank you.
19                 You don't know any of the experts
20   in this case, do you, by way of reputation or
21   personally?
22           A     No, just Dr. Balraj, that's all.
23           Q     And Dr. Melamud, the
24   gastroenterologist in this case, you don't know
25   him?
0089
 1                          Wetli
 2           A     No.
 3           Q     Never met him, never talked to
 4   him?
 5           A     No.
 6           Q     Can we agree, based upon your
 7   review of this case, that Mr. Thompson
 8   experienced a colonic perforation?
 9           A     Yes.
10           Q     And you saw that clonic
11   perforation on the slide from the coroner's
12   office, correct?
13           A     Correct.
14           Q     What is the definition of
15   peritoneal effusion?
16           A     Fluid in the abdominal cavity.
17           Q     I'm sorry?
18           A     Fluid in the abdominal cavity.
19           Q     Was this serous fluid?
20           A     It appears to be.
21           Q     Give me your definition of
22   peritonitis?
23           A     Inflammation of the peritoneum.
24           Q     You believe, believe that
25   Mr. Thompson experienced peritoneal effusion,
0090
 1                          Wetli
 2   but not peritonitis?
 3           A     Not exactly.
 4                 He did not experience diffuse
 5   peritonitis, he experienced focal localized
 6   peritonitis at the point of perforation.
 7           Q     That's what you saw when you
 8   looked at the slide?
 9           A     Correct.
10           Q     That's what you are basing your
11   opinion on, correct?
12           A     Not entirely.
13           Q     What are you basing your opinion
14   on?
15           A     The photographs of that
16   perforation.
17           Q     The photographs of the perforation
18   at the time of the colonoscopy?
19           A     No, autopsy, of the autopsy.
20           Q     I think they are in your file, are
21   they not?
22           A     Yes.
23                       MR. HUPP:  I think that's a
24               copy.
25           Q     Doctor, what we are looking at are
0091
 1                          Wetli
 2   photographs from the coroner's office.
 3                 You have Mr. Hupp's set and these
 4   look like laser color copies that you have with
 5   an identification on it from the autopsy which
 6   was performed on April 17, '04?
 7           A     Correct.
 8           Q     And there is a No. 252250.
 9                 What does that represent?  Is that
10   just the case number?
11           A     Should be the excision number,
12   yes.
13           Q     There are two photographs?
14           A     Excision of the colon.
15           Q     Would this be from the gross, in
16   other words, this is what was excised from the
17   colon as opposed to what was seen under the
18   microscope?
19           A     This is a segment of the colon
20   that has the perforation, what was seen on the
21   micro section of this area.
22                 That number, 252250, I have no
23   idea what that is.  The autopsy, sorry, that's
24   the case number.  It was different than the
25   autopsy number.  Okay.
0092
 1                          Wetli
 2           Q     Are you able to tell by looking at
 3   these two photographs whether or not this is
 4   areas of the distal descending colon, the
 5   sigmoid colon or the anus?
 6           A     It's not anus, but that's as far
 7   as I could tell.  Could be anywhere else on the
 8   colon.
 9           Q     And do you see on either of these
10   photographs evidence of the perforation?
11           A     Yes.
12           Q     And is it better shown on, for
13   lack of a better -- on the second of the two
14   photographs which are stapled?
15                       MR. HUPP:  If you want to
16               mark those A and B, you would keep
17               his set with the transcript.
18                       MR. MISHKIND:  Please mark
19               these Plaintiff's 5A and B.
20                       (Photographs were marked as
21               Plaintiff's Exhibit 5 for
22               identification, as of this date.)
23           Q     We have had marked the two
24   photographs.
25                 Just so I'm clear, are these the
0093
 1                          Wetli
 2   only photographs that you have been provided by
 3   counsel for Dr. Melamud from the autopsy?
 4           A     Correct.
 5                 I saw one facial view earlier, but
 6   it was not provided to me.  Mr. Hupp had it in
 7   his file, showed it to me, that was it.
 8           Q     A facial view from the autopsy?
 9           A     Correct.
10           Q     So the two photographs that you
11   have of the colon are either of the distal
12   descending or the sigmoid, but those are the
13   only two photographs that you have been provided
14   of the colon, correct?
15           A     Correct.
16           Q     And A, 5A, does that show the
17   perforation?
18           A     Yes.
19           Q     And does 5B show the perforation?
20           A     Yes.
21           Q     Does either photograph show it
22   better than the other?
23           A     No.
24                 It's perhaps easier to see in B,
25   but they are clear in both.
0094
 1                          Wetli
 2           Q     Will you be providing testimony in
 3   this case as to when the actual perforation of
 4   the colon established itself?
 5           A     No, except to say that based on
 6   the fact that you have an inflammatory reaction,
 7   it did not occur, it had to occur within
 8   probably several hours.
 9                 The perforation had been there for
10   several hours at least prior to his death.
11           Q     Are you able to give me, to a
12   reasonable degree of medical probability, how
13   long it was that the perforation existed prior
14   to his arrest at home?
15           A     I honestly don't think it occurred
16   prior to his arrest.  It probably occurred after
17   his arrest.
18           Q     He arrested at about 12:30 a.m.?
19           A     Correct.
20           Q     And you believe that the
21   perforation that is demonstrated on Exhibits 5A
22   and 5B did not occur until after his arrest; is
23   that your testimony?
24                       MR. HUPP:  Objection.
25           A     Correct, because the inflammatory
0095
 1                          Wetli
 2   reaction indicates that it's a matter of hours
 3   old, not days old.
 4           Q     I just want to be clear.
 5                 You recognize, Doctor, having
 6   testified as many times as you have, that it's
 7   important that you be clear and concise with
 8   regard to your opinions as it relates to this
 9   case, correct?
10           A     Correct.
11           Q     Having said that, I will accept
12   your answer.
13                 We can agree, can we not, I want
14   to go through an area now of what I think you
15   and I will agree upon, okay?
16           A     Okay.
17           Q     There's probably going to be some
18   other areas that we disagree with.  I am going
19   to start with the areas of agreement.
20           A     Okay.
21           Q     From your review of the autopsy,
22   the microscopic, the description in the gross
23   anatomical and everything that you have seen in
24   the records, Mr. Thompson likely did not suffer
25   a myocardial infarction as a cause of his death?
0096
 1                          Wetli
 2           A     That is correct.
 3           Q     Mr. Thompson did not suffer a
 4   pulmonary embolism as a cause of his death?
 5           A     Correct.
 6           Q     No evidence that he had a PE,
 7   correct?
 8           A     Correct.
 9           Q     No evidence that his arrest was
10   caused by an infarction or a heart attack,
11   correct?
12           A     Correct.
13           Q     We can agree that when
14   Mr. Thompson arrived at South Pointe in the
15   emergency room via the ambulance that he was in
16   full arrest?
17           A     No.  He was in full arrest, but
18   then was resuscitated.
19           Q     He was found in asystole?
20           A     Correct.
21           Q     Do you know how long he was down
22   and in asystole before he was resuscitated?
23           A     I don't know that.
24                 I would probably go back and look,
25   but I don't know offhand.
0097
 1                          Wetli
 2           Q     Do you know as a pathologist how
 3   long it takes for a patient who is in asystole
 4   without the ABCs of resuscitation and the return
 5   of perfusion to suffer anoxic or ischemic brain
 6   damage?
 7           A     I don't know the answer to that.
 8   I know people who are resuscitated fairly
 9   quickly can still have evidence of ischemic
10   brain damage.
11           Q     Do you know generally how long it
12   takes in terms of minutes before one would
13   conclude that the patient likely would have
14   suffered some degree of anoxic or hypoxic injury
15   after an arrest?
16           A     Probably two to four minutes.
17           Q     Is it fair to say that you don't
18   know temporally how long he was down in asystole
19   or some other electrical disassociation before
20   he was resuscitated?
21           A     Correct.
22           Q     Can we agree that according to the
23   emergency room doctors that the diagnosis, when
24   Mr. Thompson arrived, was that he had suffered a
25   respiratory arrest?
0098
 1                          Wetli
 2           A     I believe they said that, yes.
 3           Q     Can we agree also that the
 4   emergency room physician's assessment was that
 5   Mr. Thompson had experienced sepsis?
 6           A     I don't recall that, no.
 7           Q     Do you have the emergency room
 8   records?
 9                       MR. HUPP:  What page are you
10               looking at?
11           Q     Doctor, do you see in the
12   emergency room records under the assessment
13   there is a question mark, septic?
14           A     Correct.
15           Q     And we will talk about the white
16   blood cell count of 2.0 in a moment, but we can
17   also agree that the emergency room labs show
18   that his WBC was 2.0, correct?
19           A     Correct.
20           Q     Is it important in terms of your
21   opinion the cause of death, and I presume you
22   still hold to the opinion that his death was
23   caused by a seizure?
24           A     Correct.  There is evidence,
25   abundant evidence to support that cause of
0099
 1                          Wetli
 2   death.
 3           Q     I'm not asking whether there is an
 4   abundance.
 5                 You still hold to the opinion that
 6   he suffered a seizure?
 7           A     Correct.
 8           Q     Was the seizure then followed by
 9   some other physiological occurrence that led to
10   his death or did he suffer, in your opinion, a
11   seizure of the kind of magnitude that was
12   sufficient enough to cause him to arrest?
13           A     Correct.
14           Q     Was there any type of an
15   aspiration event that you see that was
16   precipitated as a result of the seizure?
17           A     No.
18           Q     Is it important, in terms of
19   supporting your opinion, that he suffered a
20   seizure of a significant magnitude, enough to
21   cause his brain injury and ultimately his death,
22   is it important to whether or not he had a
23   respiratory or a cardiac arrest?
24           A     In cases of sudden, unexpected
25   death in epilepsy, it has been shown that these
0100
 1                          Wetli
 2   are cardiac deaths.
 3                 It's hard to separate them out,
 4   but basically it seems to be a cardiac event
 5   more than anything else.
 6           Q     Sudden, unexplained?
 7                       MR. HUPP:  Unexpected, he
 8               said.
 9           Q     Unexpected, I know there is a --
10           A     SUDEP.
11           Q     That is a diagnosis of exclusion,
12   true?
13           A     Wrong.  No.
14           Q     Doctor, can you cite me any
15   literature anywhere that would indicate that a
16   diagnosis of SUDEP, sudden unexplained --
17           A     You mean unexpected.
18           Q     Let me get that article.
19                 Sudden, unexplained death in
20   epilepsy.
21           A     Sudden unexpected death in
22   epilepsy.
23           Q     That's SUDEP, is the acronym,
24   right?
25           A     Correct.
0101
 1                          Wetli
 2           Q     And you define it as sudden what?
 3           A     Unexpected death in epilepsy.
 4           Q     You don't define it as sudden
 5   unexplained death in epilepsy?
 6           A     Of course not.
 7                 Epileptic seizure is a cause of
 8   death, it's explained.
 9           Q     Have you ever heard of sudden
10   unexplained death in epilepsy?
11           A     Never.
12           Q     Are you familiar with the New York
13   University, is it Langone, L-A-N-G-O-N-E,
14   Medical Center?
15           A     No.
16           Q     Am I using a term sudden
17   unexplained death in epilepsy that you are, that
18   you have never heard of before?
19           A     Correct.  Never heard of it.
20           Q     And you are not familiar with the
21   New York University Comprehensive Epilepsy
22   Center?
23           A     I believe I am familiar with that,
24   yes, but not the name you gave me.
25           Q     Sudden explained death in epilepsy
0102
 1                          Wetli
 2   is a mysterious rare condition better known as
 3   SUDEP, S-U-D-E-P.
 4                 You have never heard that?
 5           A     That's not the term a medical
 6   examiner would use, because it's explained, it's
 7   not unexplained.
 8                 From the clinical point of view,
 9   maybe it's unexplained, but not from a medical
10   examiner point of view.
11           Q     From a clinical standpoint, by
12   definition, do you know whether SUDEP,
13   S-U-D-E-P, is invoked only under circumstances
14   where a clear cause of death, other than
15   epilepsy, is absent?
16           A     From a clinical point of view?
17           Q     Yes.
18           A     I don't know.  I have never
19   diagnosed from a clinical point of view.
20           Q     Tell me about Mr. Thompson's
21   history of seizures that you came to learn about
22   in your review of this case.
23           A     Not much.  All I know is that he
24   had a history of seizure and that he was being
25   treated with Dilantin.
0103
 1                          Wetli
 2           Q     When was the last time, based upon
 3   your review of the records, that he had had a
 4   seizure?
 5           A     I don't have any record of that,
 6   except possibly in June of '03, but it was fully
 7   documented, didn't really describe it as a
 8   seizure, described two falls, which might have
 9   been due to seizures, maybe not, but did not
10   appear to be well defined or followed up on.
11           Q     Do you have an opinion in this
12   case as to whether or not Mr. Thompson's alcohol
13   consumption caused or contributed to his demise?
14           A     My opinion, no evidence that it
15   contributed to his demise.
16           Q     Even though he did have a history
17   of alcohol, we can agree that it's not relevant
18   to the opinions that you hold as it relates to
19   cause of death?
20           A     Correct.
21           Q     It did not cause or contribute to
22   his death?
23           A     Correct, as far as I know.
24           Q     In terms of his seizures, do you
25   know what caused him to experience his seizures?
0104
 1                          Wetli
 2           A     No.
 3           Q     Do you know whether they were drug
 4   induced or otherwise?
 5           A     No, I don't.
 6           Q     Do you know whether there was a
 7   medication that had been given that caused him
 8   to experience seizures?
 9           A     I have no idea what the cause of
10   seizures was.
11           Q     Do you know whether Mr. Thompson
12   suffered a condition known as idiopathic
13   epilepsy?
14           A     I don't know.
15                 The records that were provided
16   said that he had a history of seizures.  Whether
17   it's idiopathic or traumatic, I don't know.  I
18   have no idea.
19           Q     Had he ever had, to your
20   knowledge, a clonic or grand mal seizure?
21           A     I have no idea.
22           Q     Doctor, do you know from a
23   clinical standpoint whether or not sepsis can be
24   a sufficient enough trigger to cause a patient
25   to experience a seizure?
0105
 1                          Wetli
 2           A     I believe it could.
 3           Q     And have you seen that in your
 4   experience where patients who experience,
 5   develop an infection and meet the criteria of
 6   being septic, that that can be enough of a
 7   trauma, if you will, or a stressor to cause a
 8   patient who has a seizure disorder to experience
 9   a significant or potentially life-threatening
10   seizure?
11                       MR. HUPP:  Objection.
12                       Go ahead.
13           A     I have never heard of that, I have
14   never seen it.
15           Q     Are you suggesting that sepsis is
16   not from a pathophysiologic standpoint a
17   sufficient enough stressor as to cause a patient
18   to experience a seizure?
19           A     I don't know.  You have to ask a
20   neurologist.
21           Q     Do you know if your opinion is
22   correct what caused Mr. Thompson to experience
23   his seizure that you believe was a direct and
24   proximate cause of his death?
25           A     Do I know what caused it, what
0106
 1                          Wetli
 2   triggered it?  No, I don't.
 3           Q     The x-ray report that I showed to
 4   you indicates that he had a large amount of free
 5   air in his abdomen, true?
 6           A     True.
 7           Q     And that if the radiologist is
 8   correct, is consistent with what one would
 9   expect to see after a perforation in a patient
10   who has peritonitis, true?
11           A     True.
12           Q     I think you mentioned that your
13   assessment of the case was that Mr. Thompson's
14   death was not caused by coronary artery disease?
15           A     Correct.
16           Q     While he may have had some changes
17   in the coronary arteries, they weren't
18   significant enough to have been a substantial
19   contributing factor in his death, correct?
20           A     Correct.
21           Q     Had he survived this event and not
22   died, he didn't have, in your opinion,
23   significant underlying coronary artery disease
24   that would have been a significant risk for
25   morbidity or mortality, correct?
0107
 1                          Wetli
 2           A     Correct.
 3           Q     We have already talked about no
 4   evidence of contusions or lacerations on the
 5   tongue or the lips, which aren't always seen,
 6   but is not infrequently seen in patients who
 7   have seizures, true?
 8           A     Correct.
 9           Q     I think you said to me that you
10   felt that this was most likely a cardiac arrest
11   as opposed to respiratory arrest?
12           A     Yes.
13                 The literature I have read
14   basically said when you have sudden death from
15   an epileptic seizure that somehow interferes
16   with the rhythm of the heart and causes it to go
17   to a standstill, I don't know the mechanism, I
18   think it's being worked out, but I'm not
19   positive.
20           Q     Would you defer to a clinician in
21   terms of assessing whether or not this patient
22   suffered a respiratory or a cardiopulmonary
23   arrest?
24           A     No, not particularly, because he
25   had to be there to witness it in order to
0108
 1                          Wetli
 2   determine that.
 3                       MR. HUPP:  Objection.
 4           Q     In the records, are you aware of
 5   the fact that the physicians that treated this
 6   patient referenced that he experienced a
 7   respiratory arrest?
 8           A     That's what they say, yes.
 9           Q     You would disagree with them, that
10   is the doctors that were treating him at the
11   hospital?
12           A     Absolutely.
13           Q     And that would be Dr. Gliner, Dr.
14   Mars, and there was also another doctor, a --
15   well, without going through all the names.
16                       MR. HUPP:  I want to object
17               to the use of Dr. Mars, but he
18               didn't say that.
19           Q     In the event that was indicated in
20   the record, to save time, that he experienced
21   respiratory arrest, you disagree?
22           A     I don't agree or disagree.  There
23   is no way they could possibly know.
24           Q     If they opined that he suffered
25   respiratory arrest, you believe that they had
0109
 1                          Wetli
 2   insufficient basis to arrive at that opinion?
 3           A     Absolutely.  Unless he is on a
 4   monitor and they witness it, there is no way to
 5   tell.
 6           Q     Would you agree that a white blood
 7   cell count of two is consistent with
 8   overwhelming sepsis?
 9           A     It can be, yes.
10           Q     I think you stated in your report
11   that he experienced rhabdomyolysis characterized
12   by release of myoglobin into the blood plasma,
13   correct?
14           A     Correct.
15           Q     And do you know what the treatment
16   is of a patient for rhabdomyolysis?
17           A     Only in general terms.  I'm not in
18   the treatment field, but basically it's a lot of
19   hydration.
20           Q     When the patient has
21   rhabdomyolysis, you went on to give them
22   aggressive early hydration?
23           A     Again, the type of treatment in
24   the field, as I recall, it's only treatment.
25           Q     Can we agree by the time
0110
 1                          Wetli
 2   Mr. Thompson was resuscitated by the EMS he had
 3   already experienced muscle damage secondary to
 4   the arrest?
 5           A     Well, secondary to the seizure.
 6           Q     Well, second to whatever it was
 7   that caused him to arrest?
 8           A     That was the seizures, correct.
 9           Q     In your experience, it was the
10   seizure?
11                 Whatever the invoking condition
12   was that caused him to arrest, by the time the
13   EMS arrived, can we agree that he likely already
14   had skeletal muscle damage that would be
15   consistent with the release of the myoglobins?
16           A     I believe that had already
17   occurred or was beginning to occur at that time.
18   However, just to clarify, cardiac arrest by
19   itself does not cause rhabdomyolysis.
20           Q     I'm not suggesting by my question
21   that it was cardiac arrest or respiratory arrest
22   or a combination.
23                 I'm saying that he was in
24   asystole.  He was in some state of arrest when
25   EMS arrived?
0111
 1                          Wetli
 2           A     Correct.
 3           Q     And we can agree, can we not, that
 4   more likely than not, and you know what the
 5   standard is, we can't prove to an absolute
 6   certainty, but more likely than not, at that
 7   point when Mr. Thompson was arrested and then
 8   the EMS came to the house, that he was already
 9   beginning to experience the release of
10   myoglobins into his blood plasma?
11           A     Correct.
12           Q     He was already experiencing at
13   least the early stages of rhabdomyolysis?
14           A     Correct.
15                       MR. HUPP:  Off the record.
16                       (Discussion off the record.)
17           Q     Doctor, in terms of the likelihood
18   of Mr. Thompson surviving, had he suffered the
19   seizure that you believe was significant enough
20   and the proximate cause of his death, if he had
21   been in the hospital two to three hours before
22   he suffered that seizure with aggressive fluid
23   resuscitation and other measures to provide
24   perfusion, are you qualified to testify as to
25   whether or not those measures more likely than
0112
 1                          Wetli
 2   not would have saved his life?
 3           A     I can't answer that.
 4           Q     Can we agree, even though you
 5   can't say to a probability, that based upon your
 6   knowledge, training and experience, that his
 7   chances of survival with aggressive fluid
 8   resuscitation and appropriate perfusion
 9   measures, his chances of survival would have
10   been better than experiencing the seizure at
11   home without any medical attendance at the time
12   of the event?
13                       MR. HUPP:  Objection.
14                       Move to strike.
15           A     I don't think so.
16                 I think that the latest things I
17   have read about SUDEP means that the entire
18   sector shuts down right away.
19                 Certainly if fluid perfusion is
20   not going to resuscitate him to any degree, is
21   not going to prevent damage from the
22   rhabdomyolysis, although it might attenuate it
23   to some degree.
24                 As far as I know, there is no
25   indication that even if it happened in the
0113
 1                          Wetli
 2   hospital that he would still survive.
 3           Q     Now, Doctor, SUDEP that you apply
 4   has to do with post mortem explanations for
 5   death?
 6           A     Correct.
 7           Q     The SUDEP that I'm referencing to
 8   you, the sudden unexplained death from epilepsy,
 9   death in epilepsy, you are not familiar with?
10           A     Never heard of it.
11           Q     You are not familiar with it being
12   a diagnosis from a clinical standpoint, a
13   diagnosis of exclusion?
14           A     That's a contradictory statement,
15   because if it's from a clinical standpoint, it
16   means that the patient is alive.
17                 And a clinician, the job of the
18   clinician is not to determine the cause of
19   death, that's the job of the medical examiner
20   and forensic pathologist.
21           Q     I know, but we are talking about
22   Mr. Thompson as a live patient.  And what you
23   are suggesting is that SUDEP is a post mortem
24   explanation for death?
25           A     Well, it's an explanation for
0114
 1                          Wetli
 2   death.  It's an explanation for death.
 3           Q     What I am saying to you, because
 4   I'm hearing this definition of SUDEP for the
 5   very first time, I am saying to you that if
 6   clinically those people, they are live patients,
 7   if they came in to refute or to rebut what you
 8   had to say about SUDEP and said SUDEP, sudden
 9   unexplained death in epilepsy is only invoked
10   where there is the absence of a clear cause of
11   death, you would not be able to dispute that,
12   would you?
13           A     Of course I can.
14                       MR. HUPP:  Objection.
15           Q     Well, you may have an opportunity
16   to do that, Doctor, at the trial.
17           A     I look forward to it.
18           Q     Because I'm hearing this for the
19   very first time, I can guarantee you that it can
20   be refuted.
21           A     I can guarantee it's not going to
22   be.
23           Q     Through rebuttal or direct
24   testimony, I want it clear, the record should be
25   very clear, I will have expert testimony to
0115
 1                          Wetli
 2   refute the validity, refute what you are telling
 3   me.
 4           A     That's fine.
 5                       MR. HUPP:  You haven't
 6               produced a report.
 7                       MR. MISHKIND:  I'm telling
 8               you that --
 9                       MR. HUPP:  I will bring you
10               a rebuttal witness.
11                       MR. MISHKIND:  That's fine.
12                       MR. HUPP:  You know about
13               this one.
14                       MR. MISHKIND:  I haven't
15               thrown in SUDEP.
16                       MR. HUPP:  So take it to the
17               judge, that's fine.
18                       MR. MISHKIND:  I just want
19               the record to note that.
20           Q     Let's talk about Dilantin, which
21   is part of your opinions.
22                 You comment that his Dilantin
23   level at 1:21 a.m. was 3.9?
24           A     Correct.
25           Q     Can we agree his Dilantin levels
0116
 1                          Wetli
 2   were drawn after he had received 2,500 cc's of
 3   fluid?
 4           A     I don't know.
 5           Q     And if his Dilantin levels were
 6   drawn after he had received 2,500 cc's of fluid,
 7   would that affect the Dilantin levels?
 8           A     It would reduce it a little bit,
 9   yes.  I don't know by how much though.
10           Q     Do you know whether 2,500 cc's of
11   fluid would impact a patient's WBC?
12           A     I don't know.  I don't think so.
13           Q     So the WBC of 2, you have no
14   reason to dispute that as being consistent with
15   overwhelming sepsis, do you?
16           A     Oh, yes, absolutely.
17           Q     Why?
18           A     Because the indication is this was
19   happening in the emergency room and appears to
20   be a diluted sample based upon the other values
21   that we have, along with that WBC, including low
22   hemoglobin and hematocrit, which consistently
23   elevated itself without blood transfusions.
24           Q     The temperature of the patient,
25   what was the patient's temperature?
0117
 1                          Wetli
 2           A     I don't know.
 3           Q     If the patient's temperature, body
 4   temperature in the early morning hours after he
 5   arrived was in the 35 centigrade range, and he
 6   had a WBC of 2.0, if, in fact, that was not
 7   diluted but was accurate, those would be two
 8   classic markers for a patient who is in sepsis,
 9   true?
10           A     Well, it could certainly be
11   consistent with that, yes.
12           Q     According to the records, did you
13   see that he took 400 milligrams of his Dilantin
14   that morning?
15           A     I believe that, yes, that morning,
16   correct.
17           Q     When he had, before his
18   colonoscopy?
19           A     Before his colonoscopy, right.
20           Q     What was his Dilantin level prior
21   to his arrest if it was 3.9 if it was taken at
22   1:21?
23           A     There is no way to know.
24           Q     What was his Dilantin level a
25   month before?
0118
 1                          Wetli
 2           A     I don't know.
 3           Q     Is it important to know whether a
 4   patient who has a low Dilantin level such as
 5   3.9, whether or not the patient typically runs
 6   subtherapeutic?
 7           A     No, not for my purposes, no.
 8           Q     In terms of invoking a seizure, do
 9   you believe that the 3.9 Dilantin level in the
10   emergency room is a factor that aids in your
11   opinion that he had a seizure?
12           A     Sure.  It's one part of the
13   picture.
14           Q     I want you to assume in this case
15   that Mr. Thompson's Dilantin level a month
16   before was 6.4.
17                 Do you know what the normal
18   therapeutic levels are?
19           A     I believe it's 10.  I would have
20   to look it up.
21           Q     If a patient who is
22   subtherapeutic, even with Dilantin of
23   300 milligrams or 400 milligrams, do you know
24   whether all those patients suffer seizures?
25           A     No.  You would have to ask a
0119
 1                          Wetli
 2   neurologist that question.
 3           Q     And, in fact, if the Dilantin
 4   level of 3.9, before the 2,500 cc's of fluid had
 5   been given, if that Dilantin level was 6, 6.4,
 6   consistent with what it had been a month before,
 7   can you explain to me why he suffered a seizure
 8   that you believe was significant enough to kill
 9   this man, yet didn't kill him, didn't cause him
10   to seize, didn't cause him any ongoing seizure
11   problems during the weeks leading up to this
12   arrest?
13                       MR. HUPP:  Objection.
14           A     There is no way to answer that.
15   It's like saying why does a person drop dead of
16   a heart attack today, not yesterday?
17                 There is no way to answer that.
18   All I can say is it's part of a classic
19   situation as far as SUDEP being a sudden death,
20   a person with a history of epileptic seizures
21   characteristically, they are subtherapeutic, no
22   level of anticonvulsants.
23           Q     In terms of the significance of
24   the Dilantin level of 3.9 and whether or not
25   that Dilantin level, in light of this patient
0120
 1                          Wetli
 2   and this patient's history, of being
 3   subtherapeutic and this patient's history of
 4   responding to his Dilantin, would you defer to a
 5   clinician in terms of whether or not that 3.9 in
 6   the emergency room was clinically significant or
 7   not as being evidence that he had a seizure on
 8   the night in question?
 9           A     No, I would not.
10           Q     So, again, if an expert comes in
11   and testifies that 3.9 is clinically
12   insignificant in a patient such as Mr. Thompson
13   who did not have ongoing seizures, who was on
14   Dilantin, who ran subtherapeutic, and that the
15   3.9 level would not be significant enough to
16   have invoked the seizure theory, you would
17   disagree with that?
18           A     Absolutely.
19           Q     Do you know how common it is for
20   patients to have a history of seizures, whether
21   it's invoked or provoked by medication or
22   otherwise, how common it is for patients who
23   have been walking around functioning normally,
24   yet are chronically subtherapeutic?
25           A     I have no idea.
0121
 1                          Wetli
 2           Q     And that wouldn't be important to
 3   you in this case from a live patient to know
 4   whether or not he suffered a seizure on the
 5   night in question?
 6           A     I'm taking a lot of evidence into
 7   account.  All I can say is that subtherapeutic
 8   levels of anticonvulsants are typical in sudden
 9   death in epilepsy.
10           Q     You don't know what the typical
11   dose of Dilantin is, do you?
12           A     Not offhand.
13           Q     In your review of the case, did
14   the EMS attendants indicate that Mr. Thompson
15   suffered a seizure?
16           A     No.
17           Q     Are EMS attendants in your
18   experience, maybe you don't have such
19   experience, are they usually qualified to be
20   able to get information either by way of history
21   or clinical exam to determine whether or not the
22   patient's arrest was precipitated by seizure?
23                       MR. HUPP:  Objection.
24                       Move to strike.
25           A     I would have no idea about that.
0122
 1                          Wetli
 2                 I would imagine they could get a
 3   history of epilepsy from somebody, but I don't
 4   think they would make a diagnosis of a case from
 5   epileptic seizure unless it was witnessed by
 6   somebody.
 7           Q     I want to be clear what you
 8   gathered in this case.
 9                 No one described seeing a
10   convulsing patient at any time prior to his
11   losing consciousness?
12           A     Correct.
13           Q     I asked you this, but I want to be
14   clear.
15                 Is it your testimony that a
16   patient that has overwhelming sepsis secondary
17   to peritonitis with a white blood cell count of
18   2, that that is not sufficient enough to have a
19   stressor to cause a seizure?
20           A     I know I never accepted that as
21   causing seizures.  I don't know.  It's beyond my
22   expertise.
23                       MR. HUPP:  If you want to
24               take a break, I'm going to change my
25               flight.
0123
 1                          Wetli
 2                       (Discussion off the record.)
 3           Q     In your report you indicate that
 4   Mr. Thompson had a relatively empty colon at the
 5   time of the colonoscopy, correct?
 6           A     Correct.  Well, not relatively.
 7   Empty is empty.
 8           Q     We can agree, can we not, that
 9   though he had an empty colon that's because he
10   had a bowel prep before the colonoscopy, true?
11           A     Correct.
12           Q     And even though you are not a
13   clinician, you know, generally speaking,
14   patients that have colonoscopies, unless it's
15   done under an emergency circumstance, have
16   cleansed themselves, correct --
17           A     Correct.
18           Q     -- prior to the colonoscopy?
19           A     Correct.
20           Q     But we can agree, Doctor, that
21   simply because someone has a empty colon, that
22   does not mean that there is an absence of
23   bacteria in the colon?
24           A     Correct.
25           Q     And, in fact, the prep and the
0124
 1                          Wetli
 2   colonoscopy doesn't eliminate the normal
 3   bacteria that exists in the colon, correct?
 4           A     All I could say is it's not likely
 5   to be sterile, but I don't know.
 6                 I mean, the bacterial count is
 7   obviously diminished a great deal.  I would
 8   imagine normal flora would be there.  That's
 9   about as far as I can go with it.
10           Q     Can we agree colonoscopy does not
11   eliminate the normal bacteria that exists in the
12   colon, true?
13           A     I would presume so.  I don't know
14   if that makes sense.
15           Q     He was not placed on any
16   antibiotics post colonoscopy that would kill
17   bacterial growth?
18           A     Correct.
19           Q     From the time this process was
20   completed, up until the time that he was
21   arrested, we can agree just from an medicine
22   standpoint that he would continue to produce the
23   normal bacterial flora in the colon even though
24   he may not have eaten anything at all, correct?
25           A     Correct.
0125
 1                          Wetli
 2           Q     And during the 18-hour period from
 3   10:00 o'clock or so until 12:00 midnight when he
 4   arrested, even though he may have been empty
 5   other than some sips of water, during that
 6   period of time do you know, if you don't, I will
 7   accept it, whether the patient is going to build
 8   up any fecal contents in the colon that are
 9   delivered from the small intestine, even though
10   the patient had a clean bowel prep and didn't
11   eat anything during the day?
12           A     There may have been some
13   interjection of fecal material, it's entirely
14   possible.
15                 There could have been something
16   from the small intestine.
17           Q     Your opinion in this case was that
18   he had no lab data to support peritonitis,
19   correct?
20           A     Correct.
21           Q     Or sepsis?
22           A     Correct.
23           Q     Again, when he arrived in the ER,
24   if the WBC of 2.0 is reliable, that is
25   consistent with infection?
0126
 1                          Wetli
 2                       MR. HUPP:  Objection.
 3                       Asked and answered several
 4               times.
 5                       It's consistent with it,
 6               yes.
 7           Q     And if it's accurate, then 2.0 WBC
 8   would be consistent with overwhelming infection,
 9   correct?
10           A     If it's accurate, yes, it's
11   consistent with that.
12                 It's consistent with other things,
13   too.
14           Q     What else?
15           A     Laboratory error.  Taken by
16   itself, it would just be the patient has a low
17   white count.  There's a chance he has a low
18   white count for an unknown reason.  That's it.
19           Q     You looked at the x-ray and you
20   didn't see any peritoneal air?
21           A     In my opinion, it wasn't there.
22   It was apparently confirmed by the autopsy.
23           Q     But the clinicians that saw this
24   patient, the radiologists that interpreted the
25   x-ray, all of them while he was alive saw
0127
 1                          Wetli
 2   evidence of intraperitoneal air, correct?
 3           A     No, that's not correct.  Only the
 4   radiologist did.
 5                 The radiologist interpreted the,
 6   that there was air in the peritoneal cavity.
 7   And the clinicians took that at face value.
 8           Q     Do you feel in terms of
 9   interpreting an x-ray that you are more
10   qualified than or equally qualified to interpret
11   an x-ray in terms of whether or not there is air
12   that can be consistent with peritonitis than a
13   radiologist?
14           A     Oh, no.  I would defer to a
15   radiologist until the autopsy proved him wrong.
16           Q     How did the autopsy prove him
17   wrong?
18           A     There was no air.  There was
19   fluid, sorry.  There is fluid.
20           Q     Well, I am not talking about
21   fluid.
22                 Your testimony is that without
23   air, your opinion is the radiologist was wrong?
24           A     Correct.
25           Q     And everybody that relied on the
0128
 1                          Wetli
 2   radiologist's interpretation was led the wrong
 3   way?
 4           A     Absolutely.
 5           Q     Can we agree that Mr. Thompson was
 6   experiencing metabolic acidosis when he arrived
 7   in the emergency room?
 8           A     I don't know.  I didn't look at
 9   that.
10                 I know he was acidotic, but I
11   didn't pay attention to his respiratory
12   metabolic.
13           Q     Dr. Gliner describes Mr.
14   Thompson's condition to Dr. Denholm,
15   D-E-N-H-O-L-M, as being in respiratory failure.
16                 Do you take issue with Dr. Gliner?
17           A     No, that's a clinical judgment.
18           Q     Dr. Denholm opines that
19   Mr. Thompson was in septic shock.
20                 Do you have any basis to disagree
21   with that?
22           A     Absolutely.  There was no evidence
23   of septic shock.
24           Q     So Dr. Denholm is wrong also?
25           A     Right.  There is no evidence of
0129
 1                          Wetli
 2   sepsis.
 3           Q     Okay.
 4                 If, in fact, he had acute
 5   peritonitis, he had a WBC of 2.0, he had a body
 6   temperature of 35, are those not classic signs
 7   of a patient who is septic?
 8           A     Gram negative sepsis.
 9           Q     And he had gram negative sepsis,
10   right?
11           A     He absolutely did not.
12           Q     He did not have gram negative
13   peritonitis?
14           A     He did not have gram negative
15   sepsis, he had a blood culture.
16           Q     Doctor, do you have to have
17   positive blood cultures to invoke sepsis?
18           A     Don't have to, no.
19           Q     The absence of a positive blood
20   culture does not rule out sepsis?
21           A     Doesn't rule it out, no.
22           Q     In fact, Doctor, in this case we
23   can agree, even though you are not a clinician,
24   although you are providing opinions that go back
25   and forth between a dead person and a live
0130
 1                          Wetli
 2   person, but in a patient who has been put on
 3   antibiotics before the blood cultures are drawn,
 4   you know from your knowledge, training and
 5   experience that that impacts the reliability of
 6   blood cultures, doesn't it?
 7           A     Of course.
 8           Q     Doctor, in this case were you
 9   aware of the fact that the patient was on two
10   different antibiotics before the blood cultures
11   were drawn?
12           A     No, I wasn't.
13           Q     If, in fact, he was on antibiotics
14   before the blood cultures were drawn, can we
15   agree that one cannot use the negative blood
16   cultures as a factor to say he wasn't septic?
17           A     That's true.
18           Q     So if we eliminate the blood
19   cultures, but if we accept the WBC, if we accept
20   the conclusions of the clinician that he had
21   acute peritonitis, and that his body temperature
22   was 35, would those all be consistent with a
23   patient who is septic?
24                       MR. HUPP:  Objection.
25           A     Just based on clinical
0131
 1                          Wetli
 2   assessments, yes.
 3           Q     Were you aware of the fact that
 4   the defendant in this case, Dr. Melamud, was of
 5   the opinion that Mr. Thompson had air in the
 6   peritoneum consistent with a colon perforation?
 7           A     I'm not sure if he had that
 8   opinion or not, I don't know.
 9           Q     Certainly if he testified to that,
10   that it was his opinion that the abdominal films
11   taken at the hospital showed intraperitoneal air
12   consistent with colon perforation, would you
13   have any basis to dispute the defendant's
14   testimony?
15                       MR. HUPP:  Objection.
16           A     Absolutely.
17           Q     Because of the way that you
18   interpreted that film, correct?
19           A     No.  Because of the autopsy.
20           Q     But you also said that you looked
21   at the film, you didn't see any intraperitoneal
22   air?
23           A     It's not intraperitoneal air.  I
24   could see it would be interpreted that way.
25                 The autopsy showed the changes
0132
 1                          Wetli
 2   seen in the x-ray were, in fact, due to fluid,
 3   not air.
 4                 The autopsy, in other words,
 5   showed the radiologist was in error.
 6           Q     I take it, Doctor, you have no
 7   opinion in this case that giving a patient a
 8   Fleet's enema helped Mr. Thompson?
 9           A     I have no opinion about that one
10   way or the other.
11           Q     In being thorough and complete in
12   this case, did you look to see what the
13   ingredients are of a Fleet's enema and whether
14   or not that was contributory to his arrest?
15           A     It doesn't really matter.  He died
16   from a seizure.
17           Q     I understand that's your opinion.
18           A     Right.
19           Q     You recognize that there may be
20   those that disagree with you?
21           A     Of course.
22           Q     And you have testified and have
23   been called in frequently to provide testimony
24   to refute coroners, correct?
25           A     I have done that, yes.
0133
 1                          Wetli
 2           Q     And you recognize that the autopsy
 3   that was performed was done by the county with
 4   no issues of finding anything to help Dr.
 5   Melamud or to help the family, their job was to
 6   objectively and honestly report findings,
 7   correct?
 8           A     Correct.
 9           Q     And until you came up with your
10   opinion that the coroner was wrong, you have not
11   seen anything written that would refute the
12   coroner's verdict, have you?
13           A     No.
14           Q     I want to talk about the elevated
15   myoglobin.
16                 You said that that would be
17   consistent with the seizure theory?
18           A     Right.
19           Q     That would also be consistent with
20   muscle damage caused by a number of factors that
21   would cause decreased tissue perfusion, correct?
22           A     I don't know that, no.
23           Q     Are you saying that that's
24   incorrect?
25           A     No, I'm not saying it's incorrect.
0134
 1                          Wetli
 2   I'm saying I have never seen it.
 3                 For example, people have had
 4   cardiac arrest, have had increased myoglobin.  I
 5   have not seen that.
 6           Q     Were you aware, I understand you
 7   don't treat live patients, I understand that,
 8   but can you tell me whether myoglobin, an
 9   increase in myoglobin is seen in patients who
10   have experienced systemic inflammatory response
11   syndrome?
12           A     I have no idea.
13           Q     If I showed you literature that
14   supported the concept of myoglobin, which is
15   damaged or death of skeletal muscle, releasing
16   the accelerated level of toxins into the blood
17   plasma, that can be caused by a number of
18   factors, including, but not limited to, sepsis,
19   would you be able to refute that?
20           A     Not at all.
21           Q     Or systemic inflammatory response?
22           A     No.  I have an idea.
23                 If somebody measured it, observed
24   it, I would accept it.
25           Q     What about a patient who has acute
0135
 1                          Wetli
 2   peritonitis and experiences necrosis of the
 3   bowel, can the process of necrosis cause the
 4   release of myoglobins into the blood?
 5                       MR. HUPP:  Objection.
 6                       Hypothetical.
 7           A     Not to my knowledge.  I have never
 8   heard of it.
 9           Q     Can CPR contribute to the release
10   of myoglobins?
11           A     Again, I have never heard of that
12   happening.  I am not familiar with any
13   literature about it.
14                 Again, it's not something I have
15   actually researched either.
16           Q     So if experts came in to refute
17   your opinions and testified that muscle damage
18   caused by a bowel perforation and necrosis of
19   the bowel can cause release of myoglobins, you
20   would have no basis to refute that, would you?
21                       MR. HUPP:  Objection.
22           A     No.  That is an overstatement, no.
23                 In this case I definitely believe
24   the air has many etiologies and can be
25   multifactorial in adult patients, yes.
0136
 1                          Wetli
 2           Q     I think you told me you are not
 3   familiar with the relationship between bacterial
 4   sepsis and rhabdomyolysis?
 5           A     I am not aware of any association
 6   between that.
 7           Q     If I showed you trial literature
 8   that shows that there is a relationship between
 9   bacterial sepsis and rhabdomyolysis as one of
10   the etiologies, that would be the first time
11   that you would be seeing that literature?
12           A     Correct.
13           Q     Let's talk about it.
14                 Do you know whether intraabdominal
15   sepsis can be fatal?
16           A     Of course it can.
17           Q     Can intraabdominal sepsis, can it
18   cause a condition known as abdominal compartment
19   syndrome?
20           A     That's a clinical term I'm not
21   familiar with.
22                 I know vaguely what it is, but it
23   doesn't have anything to do with my opinion.
24           Q     None of the documents that you
25   looked at on the autopsy, by way of the autopsy
0137
 1                          Wetli
 2   protocol, the coroner's verdict or the slides,
 3   support the opinion that you have that the
 4   patient died of a seizure, correct?
 5           A     Could you repeat that for me?
 6           Q     Sure.  I'm concentrating on the
 7   autopsy.
 8                 Is there anything that you as a
 9   pathologist, that's what you do, you look at
10   gross descriptions and you look at microscopic
11   excisions?
12           A     Right.
13           Q     Is there anything in the autopsy
14   that supports the opinion that the patient died
15   of a seizure?
16           A     No.
17           Q     One slide for the total colon,
18   right?
19           A     Correct.
20           Q     And it's your opinion, Doctor, in
21   looking at the slide that the perforation did
22   not cause any peritonitis?
23           A     No.  Caused focal peritonitis
24   surrounding the area of the perforation.
25           Q     And this was merely an incidental
0138
 1                          Wetli
 2   finding, not contributory to his death?
 3           A     Correct.
 4           Q     Your opinion is that had he not
 5   had his colonoscopy on that day with a
 6   perforation of his colon, more likely than not
 7   he was going to suffer a seizure that would have
 8   been significant enough and harmful enough that
 9   he was going to die?
10           A     There was no way of predicting
11   when he is going to have a fatal seizure, no.  I
12   don't think it has anything to do with the
13   colonoscopy.
14           Q     I'm saying in this particular
15   setting, if he had not had the colonoscopy with
16   the colonoscopic polypectomy in the removal of
17   three different areas and the various sequelae
18   that led up to him being admitted to the
19   hospital, it's your opinion that he was, on that
20   particular day, he was going to die and that the
21   colonoscopy had absolutely nothing to do, in
22   terms of contributing, with the clinical picture
23   that led to his arrest and death?
24           A     Correct.
25           Q     It was purely coincidental,
0139
 1                          Wetli
 2   correct?
 3                       MR. HUPP:  Objection.
 4           A     Correct.  The seizure had
 5   absolutely nothing to do with the colonoscopy,
 6   nothing that I can see anyway.
 7           Q     But to answer my question, as we
 8   talked about very early on, this was one of
 9   those cases that it was purely coincidental that
10   he had a perforation of the colon, in your
11   opinion, it had 100 percent nothing to do with
12   causing his death, correct?
13           A     Correct.
14                 In my opinion the perforation came
15   after his cardiac arrest.
16           Q     So the perforation would have
17   occurred at least 18 hours after the
18   colonoscopy?
19           A     All I can say is that the
20   microscopic features of the perforation indicate
21   it's a matter of hours old, not days old.
22           Q     Well, how many hours would you
23   say?
24           A     It's impossible to really know.
25   My best estimate is probably five or six hours.
0140
 1                          Wetli
 2           Q     Before his death?
 3           A     Well, yes, before he was
 4   pronounced dead.
 5           Q     So if we take the time of his
 6   death and go back five or six hours before that,
 7   that's when you believe he perforated?
 8           A     Correct.
 9           Q     And that's when you believe he
10   developed focal acute peritonitis?
11           A     In that one area, no where else.
12           Q     And all of that was five or six
13   hours before he died, in your professional
14   opinion in this case?
15           A     Correct.
16           Q     Take a look at the autopsy and we
17   will be close to being done, Doctor.
18                 Trying to keep Steve as satisfied
19   as possible.
20                       MR. HUPP:  I wouldn't be a
21               pain.  I have been closed out of the
22               airport, had to spend the night.
23                       Sorry to be a pain.
24           Q     The gross internal examination by
25   the coroner's office, we can agree, can we not,
0141
 1                          Wetli
 2   that it showed 1,000 cc's of amber fluid in each
 3   pleural cavity?
 4           A     That's only one pleural.
 5           Q     Each pleural cavity.  That's 2,000
 6   cc's, correct?
 7           A     Correct.
 8           Q     With 1,000 cc's of amber fluid in
 9   the peritoneal cavity with diffuse greenish
10   yellow exudate, correct?
11           A     Correct.
12           Q     And exudate and the description,
13   we can agree, yellow exudate, that is consistent
14   with, for lack of a better term, that is pus,
15   right?
16           A     Right.
17           Q     It was clear, it was transudate,
18   correct?
19           A     Correct.  No.  Exudate means pus.
20   If the fluid is clear, even with it on the
21   colon, it doesn't say anything about the fluid
22   being clear or otherwise.
23           Q     I think we said the same thing,
24   with it being a greenish yellow exudate, that is
25   consistent with pus, correct?
0142
 1                          Wetli
 2           A     Correct.
 3           Q     And pus is infection, correct?
 4           A     Correct.
 5           Q     Now, on the gross anatomical
 6   description, is there any basis upon which you
 7   can dispute the coroner's description of the
 8   2,000 cc's in the pleural cavity and the 1,000
 9   cc's in the peritoneal cavity with different
10   fluids, greenish, yellow exudate?
11           A     The quantities I cannot dispute,
12   the diffuse greenish yellow exudate is vague.  I
13   don't know where this is.
14                 If it's peritonitis, I would
15   expect to see it in the surfaces of the colon,
16   the liver, of the intestine, and it was not
17   described as that.
18           Q     Would that be another area where
19   you would say that the description of the gross
20   anatomical findings by the coroner is
21   inconsistent with what you see on the
22   microscopic examination of the perforation?
23           A     Oh, no.  That would be consistent
24   in that particular area but, for example, if you
25   look at your A5, Plaintiff's 5A, the only other
0143
 1                          Wetli
 2   area of exudate happens to be right at the
 3   perforation, there is nothing else in the
 4   description.  The remainder of the organs does
 5   not describe what you find in peritonitis.
 6                 I have no idea where she is
 7   describing diffuse exudate, whether it's in the
 8   fluid, whether it's on the surface.
 9                 She describes the liver and fluid
10   sanguinous encapsuled.  Same thing with the
11   spleen.  There no other descriptions of exudate
12   anywhere.
13           Q     Continuing with the gross
14   anatomical description, in the digestive she
15   describes 300 cc's of blackish green liquid,
16   correct?
17           A     In the stomach, correct.
18           Q     Then there is a .6 centimeter
19   perforation of the colon.
20                 Can you tell whether or not that
21   .6 centimeter perforation of the colon is what
22   we are looking at in Exhibits 5A and 5B?
23           A     That's my impression also, yes.
24                 Also it's mentioned small, large
25   intestine is grossly normal, which is not a
0144
 1                          Wetli
 2   picture of peritonitis.
 3           Q     The margins, going back to what I
 4   was asking, the margins of the perforation show
 5   erythema and greenish yellow exudate again on
 6   the gross description.
 7                 Again, we are looking at
 8   photographs, okay, and this particular one is a
 9   laser photo.
10                 The coroner is looking at the body
11   describing the margin showing erythema and
12   greenish yellow exudate, that description, that
13   descriptive term would be consistent with a
14   patient that has peritonitis, correct?
15           A     No.  It's consistent with a
16   patient that has a perforation.
17           Q     And if a perforation, in the area
18   of the perforation, if there is a greenish
19   yellow exudate, pus, upon inspection, correct?
20           A     No, not necessarily.  Not
21   necessarily.  It just means inflammation.
22                 You can get the same reaction with
23   a chemical irritation or you can get it with
24   necrosis, a situation particularly dire, it does
25   not necessarily mean infection.
0145
 1                          Wetli
 2           Q     What do you believe the greenish
 3   yellow exudate is that the coroner is describing
 4   in the colon?
 5           A     It's pus.
 6           Q     And are you suggesting that that
 7   is not evidence of peritonitis?
 8           A     No.  It's evidence of a
 9   perforation.
10                 You are saying peritonitis, I
11   assume you mean diffuse peritonitis.  There is
12   diffuse peritonitis, and you can have focal
13   peritonitis.  There is a distinction between
14   focal peritonitis and diffuse.
15                 Mr. Thompson did not have diffuse
16   peritonitis.
17           Q     When you looked at the slides and,
18   again, I know you don't have the slides with
19   you, but if you were looking at them in
20   reporting them objectively and candidly, like we
21   would expect anyone looking at it to do, you
22   would have seen necrotic tissue in the colon?
23           A     Correct.
24           Q     Do you remember seeing necrotic
25   tissue?
0146
 1                          Wetli
 2           A     Yes.
 3           Q     And that would have sort of
 4   denoted a hole, if you will, in the colon,
 5   correct?
 6           A     Correct.
 7           Q     You can't really appreciate that
 8   looking at the specimen that's in Exhibit 5A,
 9   can you?
10           A     Sure.  It's right there.
11           Q     But seeing it under the microscope
12   versus looking at it from a gross standpoint?
13           A     Yes, right.  A microscope helps a
14   lot, yes.
15           Q     How long ago did you look at those
16   slides?
17           A     This morning.
18           Q     When you looked at the slides
19   again, did you see neutrophils?
20           A     Yes.
21           Q     You saw necrosis and you saw
22   neutrophils.
23                 And did you see inflammatory
24   response consistent with peritonitis in the area
25   that is near the perforation?
0147
 1                          Wetli
 2           A     In the area of perforation, yes.
 3           Q     Do you think neutrophils are
 4   evidence of inflammatory response?
 5           A     By definition.
 6           Q     And can we agree that there is
 7   evidence on that slide of exudate on the serosa
 8   of the colon?
 9           A     Yes, in that one area.
10           Q     And, again, in that one area of
11   exudate from the neutrophils, that's all
12   consistent with peritonitis, correct?
13           A     With focal peritonitis, correct.
14           Q     All we have is that area, we
15   didn't have any other slides of any other areas
16   to look at, correct?
17           A     Correct.
18           Q     But your testimony is that looking
19   at the slide and the degree of injury or
20   necrosis, and necrosis is death of tissue,
21   correct?
22           A     Correct.
23           Q     Looking at the degree of injury
24   and necrosis and the inflammatory response that
25   you saw on the microscope, that those findings
0148
 1                          Wetli
 2   are not consistent with what one might describe
 3   as fulminant peritonitis?
 4           A     That is correct.
 5           Q     So if someone that is equally
 6   objective and candid about their examination
 7   were to come in, looking at the same slides that
 8   you looked at, and said that there is evidence
 9   microscopically at a cellular level, that is
10   consistent with a fulminant peritonitis as
11   opposed to a localized peritonitis, you would
12   disagree with that?
13           A     Oh, no.  If you are looking with
14   tunnel vision at a microscope, that's all you
15   are looking at, I couldn't tell you whether it's
16   diffuse, fulminant or focal.  You can't tell
17   from a microscope.
18                 The only way you could tell that
19   is if a section was taken of the bowel also away
20   from the perforation.
21                 Obviously sections were taken of
22   only the perforation because that was the only
23   place where there was inflammation.  They saw
24   inflammation.
25           Q     If someone is looking at autopsy,
0149
 1                          Wetli
 2   the description of the microscopic findings, and
 3   described that as fulminant peritonitis, is that
 4   a description you would disagree with?
 5           A     Absolutely.  Looking at the
 6   description of the digestive tract, it does not
 7   describe peritonitis.
 8                 In fact, the peritoneum does not
 9   even describe --
10           Q     Ultimately, Doctor, the cause of
11   death by the coroner's office describes anoxic
12   encephalopathy, that is a lack of oxygen that
13   causes an injury to the brain, right?
14           A     Correct.
15           Q     Acute ischemic cerebral infarct,
16   what is that?
17           A     Same thing, basically.
18           Q     And acute peritonitis, correct?
19           A     Correct.
20           Q     And cardiopulmonary arrest, what
21   is cardiopulmonary arrest?
22           A     It's a meaningless term that says
23   that the heart stopped and the lungs were not
24   breathing anymore.
25           Q     Following the colonoscopy and
0150
 1                          Wetli
 2   polypectomy with perforation on the descending
 3   colon, in terms of cause of death, in this case
 4   I take it you disagree with the coroner's cause
 5   of death?
 6           A     Of course.
 7           Q     And can a small perforation of the
 8   colon cause peritonitis, even localized
 9   peritonitis, significant enough to cause a
10   patient to become septic?
11           A     Sure.
12           Q     And can that sepsis become
13   significant enough to lead to a patient dying?
14           A     Yes.
15           Q     We talked about abdominal
16   compartment syndrome.
17                 You are not familiar with that?
18           A     Not really, no.  That's a clinical
19   assessment.
20           Q     Doctor, let me ask you this.
21                 I think I have gone through,
22   without going line and verse through your
23   report, I think I have gone through the opinions
24   that you have as it relates to the autopsy, the
25   cause of death and I think we have touched on
0151
 1                          Wetli
 2   the clinical aspects that you refuted vis-a-vis
 3   the x-ray findings, the blood, and then
 4   ultimately why you felt that the patient had a
 5   nocturnal seizure that caused the patient's
 6   death.
 7                 Have we, from what you can tell,
 8   have we covered the opinions that you hold in
 9   this case and the basis for those opinions?
10           A     Yes.
11           Q     Now, in terms of nocturnal
12   seizures, nocturnal to me means nighttime?
13           A     Correct.
14           Q     How long, in your understanding of
15   nocturnal seizures, at what point in time are
16   patients asleep that experience nocturnal
17   seizures sufficient enough to kill them?
18           A     No idea.
19           Q     Can you cite me to any articles in
20   your bailiwick, either in forensic pathology
21   that talk about nocturnal seizures being the
22   cause of death?
23           A     Oh, sure.  There are many articles
24   on that usually in the sense that, as we
25   described it, the frustrating fact is that you
0152
 1                          Wetli
 2   don't find anything that would account for the
 3   seizure.
 4           Q     You don't consider that to be a
 5   diagnosis of exclusion?
 6           A     First of all -- no.  First of all,
 7   you have a history of seizure.
 8                 Secondly, you have the level of
 9   anticonvulsants and for support you also have
10   the bitemarks on the tongue, if they happen to
11   be present, pulmonary edema, things like that.
12                 You have a whole constellation of
13   things that you typically see, none of which by
14   themselves are diagnostic.
15                 If you have a person that has got
16   severe heart disease, at the same time you may
17   have difficulty deciding whether the diagnosis
18   is epileptic seizure, if he died from the
19   epileptic seizure or heart disease.  You may not
20   be able to distinguish it.
21           Q     I am going to wrap things up.
22                 Have we covered your opinions?
23           A     Yes.
24           Q     The basis for your opinions?
25           A     Yes.
0153
 1                          Wetli
 2           Q     Have I been fair to you in terms
 3   of allowing you to explain things to me?
 4           A     Absolutely.
 5           Q     When are you scheduled next to
 6   testify in any matter?
 7           A     Friday.  Not tomorrow, the 28th.
 8           Q     Civil or criminal case?
 9           A     Civil.
10           Q     Where?
11           A     New York City.
12           Q     On behalf of?
13           A     Defense.
14           Q     In what type of case?
15           A     Police shooting.
16                       MR. MISHKIND:  Okay.  No
17               further questions, Doctor.
18                       THE WITNESS:  Thank you.
19                       (Whereupon, at 4:10 o'clock
20               p.m, the deposition was concluded.)
21   
22   
23   
24   
25   
0154
 1   
 2                    C A P T I O N
 3   
 4   The Deposition of CHARLES V. WETLI, taken in the
 5   matter, on the date, and at the time and place set
 6   out on the title page hereof.
 7   
 8   
 9   It was requested that the deposition be taken by
10   the reporter and that same be reduced to
11   typewritten form.
12   
13   
14   It was agreed by and between counsel and the
15   parties that the Deponent will read and sign the
16   transcript of said deposition.
17   
18   
19   
20   
21   
22   
23   
24   
25   
0155
 1   
 2                C E R T I F I C A T E
 3   
 4   STATE OF________________________________:
 5   COUNTY/CITY OF_______________________________:
 6   
 7   Before me, this day, personally appeared
 8   CHARLES V. WETLI, who, being duly sworn, states
 9   that the foregoing transcript of his/her
10   Deposition, taken in the matter, on the date, and
11   at the time and place set out on the title page
12   hereof, constitutes a true and accurate transcript
13   of said deposition.
14   
15                         _________________________
16                             CHARLES V. WETLI
17   
18   
     SUBSCRIBED and SWORN to before me this___________
19   day of _____________, 2008, in the
20   jurisdiction aforesaid.
21   
22   
23   
24   _______________________      _____________________
25   My Commission Expires             Notary Public
0156
 1   
 2               DEPOSITION ERRATA SHEET
 3   RE:
     FILE NO.
 4   CASE CAPTION:    Thompson   vs.   Melamud
 5   DEPONENT:  CHARLES V. WETLI
     DEPOSITION DATE: October 23, 2008
 6   
     To the Reporter:
 7   I have read the entire transcript of my Deposition
     taken in the captioned matter or the same has been
 8   read to me.  I request for the following changes
     be entered upon the record for the reasons
 9   indicated.
     I have signed my name to the Errata Sheet and the
10   appropriate Certificate and authorize you to
     attach both to the original transcript.
11   __________________________________________________
     __________________________________________________
12   __________________________________________________
     __________________________________________________
13   __________________________________________________
     __________________________________________________
14   __________________________________________________
     __________________________________________________
15   __________________________________________________
     __________________________________________________
16   __________________________________________________
     __________________________________________________
17   __________________________________________________
     __________________________________________________
18   __________________________________________________
     __________________________________________________
19   __________________________________________________
     __________________________________________________
20   __________________________________________________
     __________________________________________________
21   __________________________________________________
     __________________________________________________
22   __________________________________________________
     __________________________________________________
23   __________________________________________________
24   SIGNATURE:_______________________ DATE:___________
25               CHARLES V. WETLI
0157
 1   
 2   
 3                     I N D E X     P A G E
 4   Witness               Direct
 5   CHARLES V. WETLI        4
 6   
 7                         EXHIBITS
 8   Plaintiff's
     Exhibits                 Description           Page
 9   
10   1      Report dated 3/8/08 to James            5
            Stephenson from Dr. Wetli
11   
     2      Curriculum vitae of Charles V. Wetli,   6
12          M.D.
13   3      Seven-page document, including report  22
            of Dr. Wetli and handwritten notes
14   
     4      X-ray report                           24
15   
     5      Photographs                            92
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0158
 1   
 2                       C E R T I F I C A T E
 3   STATE OF NEW YORK  )
 4                      ) ss.
 5   COUNTY OF NEW YORK )
 6                       I, ANNETTE FORBES, a Certified
 7               Shorthand (Stenotype) Reporter and
 8               Notary Public of the State of New
 9               York, do hereby certify that the
10               foregoing Deposition, of the witness,
11               CHARLES V. WETLI, taken at the time
12               and place aforesaid, is a true and
13               correct transcription of my shorthand
14               notes.
15                       I further certify that I am
16               neither counsel for nor related to any
17               party to said action, nor in any wise
18               interested in the result or outcome
19               thereof.
20                       IN WITNESS WHEREOF, I have
21               hereunto set my hand this 3rd day of
22               November, 2008.
23                       _____________________________
24                         ANNETTE FORBES, CSR, RPR
25