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From:
[email protected] (Myra Dinnerstein)
Subject: SIDEBARS - July 24, 1995
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Date: Sun, 13 Aug 1995 02:48:39 GMT
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Sidebars from July 24, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: I'M JUST A LITTLE CONCERNED ABOUT THE BASIS OF
HIS EXPERT OPINION.
IS THIS ONE STUDY OF WATER QUALITY IN THE NECKAR
RIVER REGARDING PHOTODEGRADATION OF EDTA THAT IF WE DON'T KNOW
THAT IT IS THE SAME FORM OF EDTA, I DON'T KNOW THAT IT IS VALID
TO BASE AN EXPERT OPINION ON IT.
MS. CLARK: LET ME ADD TO THAT, PLEASE, BECAUSE THERE IS
ANOTHER ISSUE OF CONCERN WHICH I'VE CONFERRED ABOUT WITH THE FBI
WHICH IS THAT THIS SHOWS THE DEGRADATION OF EDTA WHEN IN WATER.
THERE IS A DIG DIFFERENCE BETWEEN THE BREAKDOWN OF
CHEMICALS IN WATER VERSUS IN DRIED STATE, AND THE STAINS WE ARE
TALKING ABOUT HERE ARE IN DRIED STATE, SO YOU HAVE A COMPLETE
IRRELEVANCE BETWEEN THE ARTICLE AND THIS.
THE COURT: WELL, YOU HAVE A DRIED STATE, PLUS YOU HAVE IT
BONDED WITH CALCIUM, SO IT IS A DIFFERENT SITUATION.
MR. BLASIER: LET ME --
THE COURT: THE POINT BEING I'M CONCERNED ABOUT YOUR
FOUNDATION.
LET ME LET THE JURORS GO.
MR. BLASIER: LET ME TELL YOU WHERE I'M DEPENDING WITH IT.
HE IS GOING TO SAY EXACTLY THE SAME THING AS THE
OTHER STUDY ON PHOTODEGRADATION, THAT THERE AREN'T ANY STUDIES ON
HIGH INTENSITY LAMPS, AND THE FBI SHOULD HAVE DONE THAT BECAUSE
THERE ISN'T ANY LITERATURE.
THE COURT: ALL RIGHT. ALL RIGHT.
OTHER POINT IS MY RECOLLECTION OF THE EDTA STUDY AND
THE WATER QUALITY OF THE NECKAR RIVER IS THAT WAS UV LIGHT THAT
THEY TESTED FOR.
MS. CLARK: UH-HUH.
THE COURT: NOT OTHER SPECTRUM, SO I THINK YOU NEED TO -- I
THINK THE LIGHT WE USED HERE WAS INFRARED; IS THAT CORRECT?
MS. CLARK: YEAH. WHEN THE SOCKS WERE VISUALIZED, YES.
MR. BLASIER: THE HIGH INTENSITY LIGHT IS NOT --
MR. COCHRAN: HIGH INTENSITY LIGHT.
MS. CLARK: WHAT HIGH INTENSITY LIGHTS? THEY USED INFRARED
AND NATURAL LIGHT.
MR. BLASIER: EVERY TIME THEY LOOKED AT IT UNDER THE
MICROSCOPE THERE WERE HIGH INTENSITY LIGHTS.
I WAS THERE WHEN IT WAS DONE.
MS. CLARK: YOU MEAN THE MICROSCOPIC?
MR. BLASIER: YEAH.
MS. CLARK: WHAT PERIOD OF TIME?
THE COURT: I THINK THERE ARE SOME FOUNDATIONAL ITEMS --
MS. CLARK: HE IS GOING TO ASK A SERIES OF SPECULATIVE
QUESTIONS, SAY WE DON'T KNOW WHEN IT BREAKS DOWN, WE DON'T KNOW
--
THE COURT: I'M SURE YOU WILL BRING THAT OUT ON
CROSS-EXAMINATION.
MS. CLARK: HE IS GOING TO DO THAT IN ORDER TO RAISE THE
SPECTRE OF SOMETHING THAT THERE IS NO EVIDENCE FOR.
MR. BLASIER: THEY SHOULD HAVE TESTED.
MR. COCHRAN: I UNDERSTAND THE FOUNDATION.
THE COURT: ALL RIGHT.
JUST SO YOU UNDERSTAND WHAT MY CONCERNS ARE AT THIS
POINT.
MR. BLASIER: OKAY.
MS. CLARK: OKAY.
THE COURT: HAVING TRAVELED EXTENSIVELY IN THE NECKAR RIVER
VALLEY.
MR. COCHRAN: WE CAN TELL.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
MS. CLARK: THIS IS A STUDY GOING BACK TO 1954 WITH
EQUIPMENT NOWHERE NEAR THE SENSITIVITY THAT WE HAVE TODAY, NO. 1.
NO. 2, WHAT THEY DID IS, THEY INJECTED THEM. THEY COULDN'T TAKE
IT BY MOUTH. I BELIEVE THEY INJECTED THEM.
IT WAS ONE-THOUSANDTH OF A DOSE THAT WE'RE TALKING
ABOUT TO PRODUCE -- CAN I GET AGENT MARTZ TO HELP ME WITH THIS.
(BRIEF PAUSE.)
MS. CLARK: ALL RIGHT.
THE CONDITIONS UNDER WHICH THE TESTING WAS DONE BEAR
NO RESEMBLANCE TO WHAT WE HAVE HERE NEITHER IN TERMS OF
SOPHISTICATION OF THE EQUIPMENT NOR IN TERMS OF WHAT THEY WERE
ABLE TO DETECT. THERE WERE PLENTY OF DETECTABLE LEVELS THAT WERE
UNSTATED IN THE ARTICLE. WE DON'T EVEN KNOW WHAT THEY WERE
BEYOND KNOWING THEY CERTAINLY DIDN'T HAVE A TEST FOR THE TRACE
LEVELS THAT WE HAVE NOW.
I THINK ALL THEY WERE ABLE TO DO IS ATTEMPT TO TRACE
IT IN THE URINE AND THE FECES AND THEY WERE UNABLE TO. THEY WERE
UNABLE TO DETECT FROM BLOOD GIVEN THE EQUIPMENT AND SENSITIVITY
THAT THEY HAD BACK THEN.
THE FACT THEY COULD OR COULD NOT DETECT WAS NOT --
THE CONDITIONS WERE NOT SUBSTANTIALLY SIMILAR AND THEIR EQUIPMENT
WAS NOT AS SOPHISTICATED AS WE HAVE TODAY TO RENDER THOSE
FINDINGS OF ANY AMOUNT IN 1995.
MR. BLASIER: ACTUALLY THE STUDY AT AN AMOUNT TWO PARTS PER
BILLION RATE IS MUCH MORE SENSITIVE THAN WHAT WE'VE USED HERE.
IT SHOWS WHAT THE ABSORPTION RATE IS OF EDTA. IT SHOWS THAT
BASED ON ABSORPTION RATES, FIVE PERCENT IS NOT ABSORBED IN THE
BLOODSTREAM AT ALL. AGENT MARTZ TOLD ME THAT HIMSELF.
THE COURT: EDTA IS NOT ABSORBED IN THE BLOODSTREAM? IS
THAT WHAT YOU'RE SAYING?
MR. BLASIER: IT IS, BUT VERY SMALL AMOUNTS. IT'S EXCRETED
VERY QUICKLY, PASSES OUT OF THE SYSTEM VERY QUICKLY.
MS. CLARK: WHAT IS THE DOCTOR'S TESTIMONY GOING TO BE
CONCERNING THE MAXIMUM LEVEL, AMOUNT THAT WOULD BE TOLERABLE?
MR. BLASIER: THAT GIVEN THE CFR PAPERS THAT SHE GAVE ME
SHOWING THE MOST YOU ARE ALLOWED TO PUT IN VARIOUS TYPES OF
SUBSTANCES, IT'S IN THE PARTS PER BILLION RANGE IF YOU ATE 100
PERCENT OF THE DAILY REQUIREMENTS EVERY DAY AND IF YOU WERE
TESTED IMMEDIATELY AFTERWARD AND IF EVERYTHING WAS ABSORBED
INSTANTLY.
MS. CLARK: WHAT DOES HE BASE THE OPINION IT WOULD BE PARTS
-- WHAT, ONE OR TWO PARTS PER BILLION WOULD BE THE MAXIMUM WE
COULD TOLERATE?
MR. BLASIER: IT'S NOT A MATTER OF TOLERATION. IT'S A
MATTER OF WHAT YOU HAVE IN YOUR SYSTEM GIVEN COMPLETE IDEAL
CIRCUMSTANCES.
MS. CLARK: WHAT DOES HE BASE THAT ON?
MR. BLASIER: CALCULATION OF HOW MUCH, PARTS PER MILLION IS
ALLOWED TO BE PUT IN FOOD.
MS. CLARK: WHAT CALCULATION DID YOU DO?
I HAVE NO PAPER WORK TO INDICATE IT'S DONE ANYTHING
LIKE THAT.
MR. BLASIER: I GAVE THEM TO AGENT MARTZ.
I TRIED TO FAX THEM TO YOU. THE MACHINE WASN'T ON.
IT'S AN EASY CALCULATION. YOU TAKE A CERTAIN
QUANTITY OF EDTA YOU START WITH AND YOU CAN CALCULATE HOW MUCH
YOU GET IN THE SYSTEM.
MS. CLARK: IS THIS SOME OTHER ARTICLE HE BASES IT ON?
MR. BLASIER: NO. THIS IS THE MAIN ARTICLE AND THE
CALCULATION IS EASY. I MEAN IT'S EASY FOR HIM. IT'S NOT EASY FOR
ME.
IT'S BASED ON THE ARTICLE THEY GAVE US. THIS IS THE
ONLY ARTICLE THAT TALKS ABOUT EDTA PASSING OUT IN THE
BLOODSTREAM.
MS. CLARK: THE PROBLEM IS, THE ARTICLE DOES NOT TALK ABOUT
--
THE COURT: DID THE DOCTOR PRODUCE A REPORT YESTERDAY?
MR. BLASIER: NO. I HAD SOMEBODY ELSE DO THE CALCULATIONS
WHICH I GAVE TO AGENT MARTZ, AND I BELIEVE --
MS. CLARK: I DON'T BELIEVE THAT'S TRUE. AND I HAVEN'T
SEEN THEM. SO I DON'T KNOW -- WE'RE GOING TO HAVE HIM
EXTRAPOLATE FROM AN ARTICLE BACK IN THE 50'S ON TESTING DONE --
THE COURT: COUNSEL, YOU ARE REPEATING YOURSELF.
MS. CLARK: ALL RIGHT.
THEY'RE EXTRAPOLATING FROM THAT CALCULATION I HAVEN'T
SEEN TO DETERMINE THAT THE NORMAL AMOUNT YOU WOULD FIND IN THE
BLOOD WOULD BE IN PARTS PER BILLION.
MR. BLASIER: ONE OTHER THING, JUDGE.
WE HAVE THAT DOCUMENT FROM THE ENVIRONMENTAL
PROTECTION AGENCY THAT SAYS THAT THE MOST YOU WOULD EXPECT IN
HUMANS IS TWO PARTS PER BILLION.
THE COURT: OKAY.
I'M GOING TO SUSTAIN THE OBJECTION ON 352 GROUNDS;
ALSO, DISCOVERY VIOLATION GROUNDS SINCE YOU DIDN'T TURN THIS
OVER.
MR. BLASIER: I DID. JUDGE, I DID.
THE COURT: YESTERDAY.
MR. COCHRAN: SO THE AGENT -- HE MISUNDERSTOOD. TELL HIM
AGAIN.
MR. BLASIER: I HAVE ANOTHER EXPERT I'M WORKING WITH THAT I
PROBABLY WILL NOT CALL, THAT I'VE ASKED TO DO SOME CALCULATIONS.
I GAVE THEM TO ROGER MARTZ YESTERDAY.
THE COURT: YESTERDAY, DID YOU GIVE IT TO COUNSEL?
MR. BLASIER: I TRIED TO FAX IT TO THEM. I'VE GOT THE
PROOF HERE. THEIR MACHINE WAS TURNED OFF.
THE COURT: SUSTAINED.
MS. CLARK: YOU DIDN'T GIVE IT TO ME YESTERDAY.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT.
WE'RE OVER AT THE SIDEBAR.
MISS CLARK, I CAUTIONED YOU TO BE CAREFUL EARLIER.
YOUR COMMENTARY ON THE TESTIMONY, I REALIZE YOU'RE ENJOYING
YOURSELF, BUT I'M WARNING YOU RIGHT NOW, WARNING YOU IN NO
UNCERTAIN TERMS, IF I SEE ANY MORE OF THAT COMMENTARY, THERE'S
GOING TO BE SEVERE SANCTIONS, AND I UNDERLINE THE WORD "SEVERE."
PROCEED.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: DOCTOR, WHAT'S YOUR SCHEDULE TOMORROW? WHEN
ARE YOU PLANNING ON LEAVING?
THE WITNESS: I HAVE TO GO BACK TO -- I HAVE TO GET A GOOD
NIGHT'S SLEEP BECAUSE ON THURSDAY, I FINALLY GOT A MEDICAL
APPOINTMENT, THOROUGH HEART EXAMINATION. I'VE HAD TWO
ANGIOPLASTIES, ONE IN DECEMBER, ONE IN APRIL.
THE COURT: WHEN ARE YOU AVAILABLE NEXT?
THE WITNESS: I CAN -- I AM SORRY. I WILL MAKE IT A POINT
IF THERE'S A FLIGHT ON THURSDAY AFTER THE EXAMINATION I HOPE
UNLESS, OF COURSE, I'M HOSPITALIZED, WHICH I DOUBT THAT, I WILL
FLY OUT HERE AND I'LL MAKE MYSELF AVAILABLE FRIDAY.
THE FOLLOWING MONDAY, I AND 14 OTHERS, FAMILY
MEMBERS, ARE TICKETED TO FLY TO VIENNA FOR A WEEK MEETING AND FOR
A FAMILY REUNION. I'M FROM VIENNA. AND I WOULD BE VERY, VERY
UPSET IF I COULD NOT HOLD THAT BECAUSE THIS IS THE ONLY CHANCE I
WILL HAVE TO TAKE MY FAMILY TO WHERE I WAS BORN. I ALSO HAVE
SOME MEETINGS SCHEDULED AT GENERAL HOSPITAL AT THE UNIVERSITY FOR
PRESENTATIONS.
THE COURT: HOW LONG ARE YOU GOING TO BE OUT OF TOWN?
THE WITNESS: AND I'LL BE BACK ON THE 9TH OR 10TH OF
AUGUST.
THE COURT: THE PROBLEM IS, WE'RE GOING TO BE QUITTING
FRIDAY AT 11:00 O'CLOCK SHARP BECAUSE I HAVE A PLANE TO CATCH AS
WELL.
HOW MUCH MORE?
MS. CLARK: ABOUT AN HOUR.
MR. BLASIER: I DON'T HAVE A LOT OF REDIRECT.
MS. CLARK: WE COULD FINISH THIS TOMORROW MORNING.
MR. BLASIER: HE CAN'T GET BACK IN TIME AND DO WHAT THE
DOCTOR TOLD HIM TO DO TO PREPARE FOR THIS TEST.
THE COURT: YEAH. HOW ABOUT IF ON FRIDAY WE STARTED AT
8:00 O'CLOCK?
MS. CLARK: HUH?
THE COURT: WE START AT 8:00 O'CLOCK.
MS. CLARK: WHEN?
THE COURT: FRIDAY.
MS. CLARK: I CAN'T.
THE COURT: YOU HAVE TO, MARCIA. YOU HAVE TO MAKE
ARRANGEMENTS. WE'VE MADE A LOT OF ACCOMMODATIONS FOR YOU. THE
REASON WE HAVE TO QUIT AT 11:00 O'CLOCK IS FOR MY REASONS. I
WOULD LIKE FOR YOU TO ACCOMMODATE ME IN THIS SITUATION.
MS. CLARK: I -- JUDGE, I WOULD LOVE TO, BUT -- CAN WE SEAL
THIS?
THE COURT: YEAH.
OFF THE RECORD.
(A CONFERENCE WAS HELD AT THE
BENCH, NOT REPORTED.)
THE COURT: OKAY.
FRIDAY MORNING, 8:00 O'CLOCK.
MS. CLARK: CAN WE MAKE IT 8:30?
THE COURT: MARCIA, 8:00 O'CLOCK, I WANT TO FINISH THIS
GUY.
MS. CLARK: WE WILL. 8:30. FROM 8:30 TO 11:00. WE WILL
FINISH HIM. WE'LL BE DONE.
THE COURT: PROMISE?
MS. CLARK: PROMISE.
MR. BLASIER: 8:30?
THE COURT: 8:30 ON THE DOT.
TOMORROW WE'LL HAVE MARTZ?
MR. BLASIER: WE'LL PUT HIM ON. THEN WE'RE GOING TO HAVE
HEARINGS ON MACDONELL.
MR. COCHRAN: WE THINK WE CAN FILL THE TIME ALTHOUGH WE'RE
LEAVING AT 4:00 ANYWAY AND -- 4:00 O'CLOCK TOMORROW?
THE COURT: TOMORROW IS 4:00 O'CLOCK.
MR. COCHRAN: I THINK WITH MARTZ, PERATIS AND MACDONELL.
MS. CLARK: WHAT ELSE ARE WE GOING TO DO ON MACDONELL?
MR. COCHRAN: OUR GUYS WILL BE HERE AND READY.
MS. CLARK: WE DON'T HAVE A REPORT FROM HIM INDICATING WHAT
HE WILL TESTIFY TO. SO WE NEED A 402 ON THAT.
AND GIVEN THE FACT THAT I BELIEVE THAT THE BLOOD
DRYING EXPERIMENT TO BE CLEARLY INADMISSIBLE, THAT LEAVES US WITH
NO ADMISSIBLE TESTIMONY IN ANY REPORT OR NOTES TO WHICH HE CAN
TESTIFY. SO WE HAVE NO IDEA --
THE COURT: I THOUGHT I RULED THAT HE COULD TESTIFY TO WHAT
HE OBSERVED.
MR. SCHECK: ACTUALLY WHATEVER GARY SIMS TESTIFIED TO.
THAT LOOKED LIKE BLOOD IS WHAT GARY -- YOU SAID HE COULD SAY.
MS. CLARK: I DON'T THINK GARY SAID THAT. I DON'T WANT TO
GET INTO THAT RIGHT NOW.
THE COURT: HE DIDN'T SAY IT LOOKED LIKE BLOOD. HE DIDN'T
SAY THAT. HE DIDN'T SAY THAT. HE SAID IT LOOKED LIKE A RED
POWDERY SUBSTANCE IS ALL HE SAID.
MR. BLASIER: SOMEBODY ELSE SAID --
MR. SCHECK: I THINK I DID.
MS. CLARK: DOESN'T MATTER FOR OUR PURPOSES RIGHT NOW.
THAT'S 10 MINUTES OF TESTIMONY. HE'S DONE. THAT'S
ALL THEY WANT TO CALL HIM FOR. SO --
THE COURT: OKAY.
DOCTOR, WE'LL SEE YOU FRIDAY. BE HERE AT 8:00
O'CLOCK, DOCTOR.
MR. SCHECK: WE HAVE THE GLOVE MOTION.
