Malone, Patrick: Cross-examination of a neonatologist expert on his factual mistakes

This was a cross-examination of Edward Karotkin, a Virginia neonatologist, in a birth injury trial in Roanoke, Virginia. The baby had suffered intra-uterine bleeding just before birth from a needle stick with an amniocentesis procedure that was intended to determine if she was mature enough to deliver.
Q. Sir, you agree that your job is to be objective?

A. That is correct, yes.

Q. You are not, it wouldn’t be appropriate for you to cherry pick certain little pieces of evidence from the record and ignore other things that just inconveniently don’t fit with your opinion. Right?

A. No, I don’t think I have done that in this review, no.

Q. It wouldn’t be right, would it?

A. It wouldn’t be right, no, sir.

Q. It wouldn’t be right to misread things in the record and draw inappropriate conclusions from them, would it?

A. That’s correct.

Q. Let’s start with the MRI business. Actually let me start first with this: We’ve got a stack, where is the other, we’ve got a stack of the University of Virginia records for the first two months of this baby’s life. You went through all of them?

A. I believe I did.

Q. And they were important to you in forming your opinions?

A. Yes, they were.

Q. So you pretty much relied on all of them to a greater or lesser extent.

A. Yes. I would say I probably relied more on the prenatal and the records that immediately surrounded the delivery of the baby, but I certainly did review the records from the University of Virginia, yes.

Q. And relied on them as well?

A. Yes.

Q. Okay. So the opinion about the MRI, now, let me ask you preliminarily, is that your deposition that I see in front of you?

A. I believe it is a deposition from August 31st, 2009.

Q. Okay. So you’ve looked at it recently?

A. Yes.

Q. To prepare for today?

A. Yes, I have.

Q. Did you see any errors in there?

A. I think there were a couple of errors, yes.

Q. Kind of embarrassing ones, weren’t they?

A. Well, no. I recognize them as errors and no one is perfect.

Q. Okay. Well, one error is that you are totally changing your opinion on the MRI. True?

A. It may be. I may not have had access to some of the depositions and some of the records that I reviewed after this deposition.

Q. Well, sir, in your deposition you told us, let me show you what you said.

A. What page are you referring to?

Q. I will get there in one second, 53. Question and answer, “What is it about the report of the scan that causes you to think this was consistent with an infarct rather than an hypoxic ischemic event?” Here is your answer. By the way, today you are saying yes, it is an hypoxic ischemic event. Correct?

A. Yes.

Q. At the deposition completely the opposite. Right?

A. But I think, can I just say —

Q. Let’s just finish, this. Okay?

A. Sure.

Q. Answer, “Well, I think it was the description of the MRI being in the parietal occipital area. And again, in my experience as a neonatologist, if there had been an asphyxial event prior to delivery and in the hours prior to delivery, there would be more of a global insult rather than a discrete insult in the parietal occipital area. In my experience in the severely asphyxiated baby, for whatever reason, the hypoxic ischemic damage is all over the brain rather than confined to one particular area, as it is in this case in the parietal occipital area.”

Question: “Is that an opinion that this is more consistent with an infarct than an hypoxic ischemic event an opinion that you hold to a reasonable degree of medical probability?”

“Yes, it is.”

Question: “And it is based simply on reading the report of the radiologist?”

Answer: “That is correct.” So you are not even competent to read MRI images?

A. Oh, I admitted that for sure.

Q. Okay. The jury yesterday saw MRI images that showed damage all over this baby’s brain. You are aware of that?

A. Yes.

Q. Did Mr. Peake tell you that?

A. Yes, he did.

Q. So he told you, now we have got to move off of that opinion about there being focal injury.

MR. PEAKE: Excuse me.

MR. MALONE: I’ll restate it.

MR. PEAKE: Your Honor, I think it must be clear, I didn’t tell him.

THE COURT: He knows what is going on.


Q. You realize that there is absolutely no support now. And in fact, it is a little embarrassing for you to stick with what you said before about a focal injury to this baby rather than a global injury consistent with loss of oxygen due to loss of blood. True?

A. Let me qualify my opinion, if I can. I think when I gave this deposition four years ago, I didn’t have access to all of the reports and all of the depositions.

Q. You had all of these.

A. I am not too sure. Are those all of the depositions?

Q. No. I am talking about the University of Virginia records.

A. Well, I may have had those, but I think in retrospect, and I misread when he said a discrete area in the parietal, occipitoparietal area. I thought that report referred to an infarct which was not so global in nature.

Q. You just misread the report.

A. Well, I may have misread it, but certainly in rereading it, I think —

Q. Within the University of Virginia records, if you had looked at them carefully, you could have seen that the pediatric neurologists who were taking care of this baby all saw that this was an injury on the MRI that looked like oxygen deprivation from low blood flow. Didn’t you see that, sir?

A. Yes.

Q. Well, did you see that before you formed this opinion that that was wrong?

A. You know, I don’t recall.

Q. Let me show you what I am talking about here. Way too many pieces of paper here. University of Virginia, page 249, neuro consult after the MRI. All of these records were available to you a long time ago, before you gave your deposition. MRI with bilateral, BL. Posterior medial infarcts, extensive. Probably, two zeros means secondary to or caused by, right?

A. That’s correct.

Q. Probably caused by anoxia low flow. That is low blood flow. Right?

A. That’s correct.

Q. And so when you are changing your opinion today about this MRI report, and it is solely on your reading of this report which you’ve already admitted that you messed up once, now you are telling us that somewhere in this report it tells us the timing of the injury conveniently was before the amniocentesis. That’s what you are trying to say.

A. I think there is evidence that it was before. I think other experts have said it was before the amniocentesis.

Q. You are not allowed to talk about what other experts say. You know that. You know the rules of court. You have been around this track many times. But let me ask you this, though. Did you happen to read Dr. Zimmerman, the defense neuroradiologist?

A. I believe I did, yes.

Q. He said there was a range of time. You don’t remember that?

MR. PEAKE: I object, Your Honor. I don’t think he can get into something that is not in evidence at this point. Dr. Zimmerman has not testified in this case.

MR. MALONE: He said he read depositions and he is relying on them.

THE COURT: Side bar.

MR. MALONE: I can drop it. Let’s go with this MRI thing.

Q. So in your deposition, you gave us no opinion about the timing of this injury based on this MRI report. True?

A. I don’t think I was asked.

Q. Sir, you were asked the basis of your opinions while you thought that this baby had some injury that preceded the amniocentesis, weren’t you?

A. My understanding of the reading of these MRIs is that you cannot be so precise as to time it within a matter of hours and it is usually a time period of several days where you may be able to predict when it happened.

Q. Sure. And the timing here is it could have been November 5th from the MRI because it is imprecise. True?

A. And it could have been November 2nd or 3rd as well.

Q. Okay. But if it could have been November 5th and it could have been November 2nd, then it doesn’t matter, does it?

A. It does matter to me because it is consistent with either the 2nd or 5th. I think the other evidence would indicate that it occurred closer to the 2nd, 3rd, or 4th rather than the 5th.

Q. We will get to that. But at least with the MRI you got to admit it is a tie ball game.

A. I think the MRI would be consistent with an injury that happened on the 5th, but maybe just as consistent with an injury that happened on the 2nd, 3rd or 4th.

Q. Show me where in this MRI report it says anything about the timing of the injury.

A. I don’t think it says anything about timing of the injury. It is just based on —

Q. But something you made up?

A. Not something I made up. But I think in reading the literature of MRI reports in this particular kind of circumstance, I think the evidence would indicate that you cannot time it precisely, that there is a window of days not hours where you can time the onset of the injury.
Q. Didn’t you try to tell this jury on direction examination that this MRI supported the opinion that the injury occurred before the amniocentesis?

A. I think I did. I think it does support it.

Q. Now you are saying it could maybe not support it.

A. I said taken in context with all of the other evidence it does, in fact, support that the injury, I can’t disallow or ignore the other evidence in the case of the dark blood on the second pass of the amniocentesis, the baby’s Apgars and everything else.

Q. Let’s stick with one thing at a time. Okay? Now, let’s talk about cherry picking. On the newborn record, and you told us about, you know, mild to moderate resuscitation. You left out one thing, didn’t you? What was this baby’s oxygen saturation on room air after she had had half an hour of oxygen and after she had had the bag valve mask?

A. I don’t recall her being in room air a half-hour after the resuscitation. You would have to show me the record. I thought she had a saturation of around 45 percent, but I thought at that time she may have been in some oxygen.

Q. Well, the jury heard yesterday from the nursery nurse that they removed the baby just quickly from oxygen to see what her saturation would be on room air; and that’s appropriate. Right?

A. Yes.

Q. Just quickly.

A. Yes.

Q. And in fact, it was at 7:45 p.m. it was 37 to 45 percent saturation. Correct?

A. Correct.

Q. If she had stayed on room air, she would have died.

A. Well, I am not so sure she would have died, but certainly we can recognize that those saturations require some therapy.

Q. Not compatible with life to have an oxygen saturation of 37 to 45 percent.

A. Well, I wouldn’t say not compatible with life. It certainly requires intervention. And I think given in this setting, too, that there may be other explanations as to why the saturations were low. I am not saying nothing to get concerned about — certainly I think they did respond appropriately to the saturation — but in patients who have poor perfusion we know that the pulse oximeter does not always read accurately. So the documentation of that may have been artificially reading low.

Q. Sheer speculation.

A. I am just saying that just, this is just a known fact. It is not speculation. It happens all the time in patients.

Q. It is sheer speculation that this baby had a 37-percent oxygen saturation only because the machine wasn’t working.

A. That is not speculation at all. It is very commonly seen in patients, particularly who are hypovolemic or who are anemic and in the immediate stabilization period.

Q. Oh, and she was hypovolemic. You left that totally out of your opinion, didn’t you?

A. Well, I don’t think anybody asked me about it, but she was hypovolemic. I didn’t mean to leave it out.

Q. Well, hypovolemic, low blood volume, they had to pump her up repeatedly. Right?

A. Well, they gave fluid boluses, yes, at least on two occasions before transfer.

Q. More than two.

A. Three occasions, yes.

Q. In fact, she couldn’t hold up her blood pressure after the first two and so that is why Dr. Stickley bolused her again.

A. That’s correct.

Q. She had a low blood pressure.

A. She did have a low blood pressure.

Q. That is not consistent with an injury two or three days earlier, is it, sir?

A. Well, it may be. It certainly may be.

Q. You are saying that a baby has failed to, and you know the concept that we all do, if we bleed and we don’t get a transfusion, our blood vessels suck up the fluid.

A. Interstitial fluid.

Q. The interstitial fluid, and restore volume.

A. They have a tendency to do that, yes.

Q. They do that within hours?

A. (Nods head.) Perhaps several hours, yes.

Q. Several hours. And by the time passage of several hours, it is usually a normal amount of volume. True?

A. Or near to normal, true. Certainly it is an attempt on the organism to reestablish a normal blood volume, yes.

Q. One of the reasons you said in your deposition that you thought the resuscitation was essentially no big deal was that you said the baby was happy after all of this. Do you remember that?

A. I think that is something I think referred to the mother in retrospect in looking at the records. It was very misleading the way it was written in the chart.

Q. Actually what you, you mentioned it twice. I am going to show you what you said.

MR. PEAKE: Well, Your Honor, first of all, he has to ask him, he hasn’t testified inconsistently. He doesn’t just get to show his deposition. There has to be some
inconsistent testimony.

Q. You relied, in part, on the fact that this was a quote, happy baby, didn’t you?

A. Well, the way “happy” was written —

Q. Can you just answer the question?

A. I am going to answer it. The way happy was written —

THE COURT: Just answer it now, yes or no, did you rely on that language.

THE WITNESS: Initially I did, yes.

THE COURT: All right. You will be given an opportunity to explain. Go ahead.

MR. MALONE: May I just show him what he said so we have it in context?


Q. “Baby was described after the resuscitative efforts as, quote, being happy. The resuscitation was relatively uneventful. The baby only required some positive pressure ventilation for two or three minutes and some oxygen and responded very well.”
And then on another page, I won’t bother showing the jury, you referred again to the baby being happy. Right?

A. That’s correct.

Q. Okay. And here is what the record says on who was happy. This is the newborn record with the Apgars that we have looked at. There is a section in just about any newborn record on the subject of bonding. Right, sir?

A. There may be, yes.

Q. Bonding is mom and baby, dad and baby bonding together?

A. That’s correct.

Q. It is psychologically very important?

A. That’s correct.

Q. And that is why you document it. If you had a mom in there who had no interest in the baby, they might want to call Social Services or whatever, and you know, get some involvement. Right?

A. Sure, sure.

Q. So bonding here, length of time two to three minutes. Persons present, father of baby. Response to infant, happy. That is what you misread.

A. That’s correct.

Q. Okay. You said that it was important to understand the cause of a child’s injury in order to develop a treatment plan.

A. I did, yes.

Q. If there has been recent loss of volume that hasn’t yet stabilized, the doctors would be more concerned about giving fluid and then eventually maybe blood transfusions as opposed to a remote event.

A. I would say by and large that is true, yes.

Q. And in this case you have already told us that one of the things that was important to you or that you relied on was the baby’s assessment when she got to the University of Virginia. True?

A. Correct.

Q. You looked, didn’t you, for some doctor in the record who would support your opinion that this mother had had some previous bleeding in her detachment of her placenta and that that caused all of this baby’s problems. You looked, didn’t you?

A. I looked, and I think as I recall from the admission note there was a note that this baby was born to a mother that had a placenta abruption, that was their assessment as well.

Q. Yeah. Actually you totally misread that one, too. Let me show you what the admission assessment was of David Kaufman. Do you know who Dr. Kaufmann is, David Kaufman?

A. I don’t know him, no.

Q. He is a neonatologist at the University of Virginia.

A. Um-um.

Q. Let’s look at what he said.

MR. MALONE: Do you want me to approach on this, Your Honor?

THE COURT: Yes, I think so.

MR. MALONE: I would be happy to.

THE COURT: Counsel, let’s touch base for just a second. Members of the jury, are you all right?


(A bench conference was had out of the presence and hearing of the jury and the court reporter.)


Q. The single most important record that you would want to see to see contemporaneously what people thought at the time would be the admission assessment because down the road, you know, information gets distorted and people change what they, you have seen that before, you go back to the core source.

MR. PEAKE: I object to the form of that question. He can ask about the record and explain —

THE COURT: He is just trying to lay a foundation. Objection overruled. Restate your question.


Q. The admission assessment is an important piece of data. Correct?

A. It can be important, but certainly not any more important than the events that happened prior to the transfer or prior to –

Q. Let’s stay on subject now. The admission assessment, University of Virginia, the little girl has been helicoptered there after this, you know, you claim mild to moderate resuscitation event. She did need intensive care, you admit that.

A. She did subsequently, yes.

Q. And Dr. Stickley was right to send her to the University of Virginia.

A. Yes, he was.

Q. So Dr. Kaufman’s assessment, this is so early in the case that they don’t have Marissa’s name on there. That is a typical thing, you say “Baby Girl Simpson”?

A. That could be, yes.

Q. November 6th, 2001, “I have reviewed the history, discussed the perinatal history.” Perinatal means the events surrounding the birth. Right?

A. That’s correct.

Q. “And current condition of the baby with the referring physician Dr. Stickley. Arrange the neonatal transport, discuss transport management with the transport clinician. Examined the baby myself, reviewed the following tests,” and he refers to arterial blood gas. Correct?

A. That’s correct.

Q. Hematocrit, HCT?

A. Correct.

Q. Complete blood count?

A. Correct.

Q. Electrolytes?

A. That’s right.

Q. And chest x-ray. “This is a 2977 gram baby.” That is the same as 6 pounds 9 ounces. I only know that because I had a cheat sheet.

A. Yes.

Q. “2977 gram baby born 37 weeks of gestation. This is 37-week AGA infant.” That AGA means appropriate for gestational age. Right?

A. That’s correct.

Q. And that means she is not big, not small, in a good range, in an appropriate range.

A. For that gestational age, correct.

Q. “Delivered by stat C-section after complication of acute blood loss from amniocentesis when needle came in contact with placenta.” You saw that Dr. Kaufman wrote that?

A. I did.

Q. And you rejected it?

A. I did.

Q. You know more than Dr. Kaufman knew at the time?

A. That doesn’t comport with what the findings were prior to transporting. I think if you look through that UVa chart there is another admission and history physical which would indicate that this baby had a placental abruption. I don’t know who it was written by, but it was in the early days of her admission.

Q. I am going to ask you to point it out for me since it is so important to you. Do you have it?

A. I don’t have it with me. I hope Mr. Peake can find it.

Q. “At C-section amniotic fluid was noted to be grossly bloody.” You knew that. Right?

A. Yes.

Q. Okay. How did that amniotic fluid get to be grossly bloody, by the way?

A. Well, I assume the needle went through the placenta. What you have to do in certain circumstances, and that there was some blood as that needle came back out, and there was probably some blood in the amniotic fluid as well.

Q. Interesting. So now you agree that the fluid was bloody in the amniotic sac because of the amniocentesis.

A. Well, I think it was both, blood from the amnio perhaps and from the old blood which was described as occurred during the second pass of the needle.

Q. How does that work?

A. Well, I think if you look at the testimony that after —

Q. I am talking anatomically. How does that work?

A. Well, the needle would go through the abdominal wall and through the placenta and into the amniotic fluid and you withdraw fluid.

Q. Right.

A. And with that fluid would be whatever is in the amniotic fluid, old blood, maybe some new blood.

Q. But how did the old blood get into an intact amniotic sac? That is my question.

A. I think you can see that with an abruption.

Q. Okay. I will get back to that in a minute. Let me finish this. So he talks about the baby’s condition, and we don’t need to go through all of that. Infant, the, what they did to revive the baby, maternal history. Here is the physical exam he is talking about, color is pale, there is good perfusion. It says the baby is still pale many hours after birth. Right?

A. According to that note, yes.

Q. Well, you don’t have anything to contradict it, do you?

A. No. I just said according to that note the baby was described, yes.

Q. He is looking for birth defects and he doesn’t see any birth defects. Right?

A. That’s correct.

Q. He writes down what the issues are and under perinatal compromise, “Mild to moderate, bloody amniotic fluid after amniocentesis with anemic child requiring fluid resuscitation for hypotension.” Right?

A. That is correct.

Q. So his gestalt on the whole case was that the child got anemia from the amnio and that is why she needed the fluid resuscitation at birth because she had low blood pressure.

MR. PEAKE: I object to that. He can’t infer from what is written here what Dr. Kaufman’s thought process was.

MR. MALONE: I am sorry we don’t need testimony from counsel on this. I can ask the witness the question.

MR. PEAKE: That is my objection, Your Honor, as it is formulated.

THE COURT: Objection sustained. The way it is phrased calls for speculation. You can ask him the fact of his opinion.


Q. A normal reading of that is that, and your reading of that is that the child developed anemia from the bleeding from the amnio. That is why she needed the fluid resuscitation because she had low blood pressure at birth.

A. That is what it says there. I don’t think there is evidence that there was continued, active bleeding after the amniocentesis. As I said before —

Q. Okay.

A. — it was a little bit of bleeding.

MR. PEAKE: Your Honor, do not cut him off in the explanation.


Q. Go ahead.

A. That a, when the biophysical profile was done at 9:30 or about an hour after the amniocentesis, there was no evidence of any active bleeding. I would anticipate and I would expect that if continued bleeding occurred to the point where to cause this baby to become anemic and distressed, you would have seen it during that study.

Q. But then that gives you zero explanation for why the baby needed fluid resuscitation at birth because she had a low tank of gas.

A. Well, I think you could explain that by the events of a partial abruption or the events that happened on the 2nd or 3rd or 4th of November prior to the amniocentesis.

Q. You already told us that it only takes hours to restore from the interstitial fluids.

A. I didn’t, you may not get a complete restoration, but it may take more than just a couple of hours.

Q. Days?

A. It might. I don’t have what happens in utero, but it certainly might.

Q. So you don’t know what happens in utero so it is just pure speculation?

A. I don’t know if anybody has that data as to how long it takes for a blood volume to equilibrate in a fetus in utero two or three days prior to delivery. I just don’t think that data is available.

Q. All right. So, you are saying he is just wrong?

A. I don’t see the evidence for coming to that conclusion. I don’t find any evidence that there was active bleeding after the amniocentesis. In fact, the evidence is quite the opposite, that there was no active bleeding.

Q. And then on his second page he talks about his plans, and the second item he puts is “Anemia, acute blood loss after amniocentesis, hematocrit 27 at birth, monitor hematocrit with transfusions if clinically indicated.” Right?

A. Again, I don’t know what the procedure is, but I distinctly remember reading in another admission history and physical, and I don’t know who it was by, where it specifically mentioned abruption of the placenta at University of Virginia in the day or two after this baby’s admission. And given time — I have my records in the car — I can get them for you if you would like.

Q. I’ve got dozens of pages to show you that talk about the amniocentesis.

A. I have a tab.

Q. I will let you do that at the break. We will let you do that at the break. Let’s see. This reminds me of one other thing. You said you, as a neonatologist, would get involved in counseling moms who have difficult birth situations. Right?

A. Typically we do, yes.

Q. And even after birth?

A. Correct.

Q. And so did anybody ever counsel Marsha Simpson, We think you had a placental abruption and it could increase the risk for a future baby problem?

A. I don’t recall that happening. I don’t know what happened, whether the obstetricians talked with her. There was no neonatologist involved in this care. It was a general pediatrician.

Q. It didn’t happen, did it?

A. I don’t think the part —

Q. There are two options on it not happening, the counseling. One is these guys derelicted their —

MR. PEAKE: I am going to object here, Your Honor.

THE COURT: Sustained. Calls for legal conclusion.

MR. PEAKE: This goes to what we have been dealing with for a long time in this case.

THE COURT: I don’t think you want to go there.

MR. PEAKE: I think he already has, Your Honor. We would like to be heard after this witness rests. It has gone too far.


Q. Okay. So let’s talk about the —

THE COURT: Let’s take a recess now, let’s do that. Members of the jury, you take about ten minutes.

THE COURT: Mr. Malone, you may proceed with the witness.

MR. MALONE: Thank you, Your Honor.


Q. You had a chance to go out in your car and check the records?

A. I did, yes.

Q. And the record that you found that had the most information about a possible placental abruption is this one here?

A. Well, there are actually two records. This one and then there was one I think that was related to a radiological procedure that in the assessment said placental abruption as well.

Q. That radiology thing was just a brief note, and you couldn’t tell if it was history or what it was. Right?

A. It was just on the report, yes, that’s correct.

Q. It wasn’t an evaluation of anybody’s placenta?

A. It was not.

Q. Now, on this note here you are relying on this top part here?

A. Well, I think what struck me as the top part, which at least considered the possibility of an abruption, it says “during amniocentesis.” And again, I did not find any evidence of abruption during the amniocentesis.

Q. Well, let’s take a quick look at it. We are doing this as the Judge said, just to get the basis of whether you have a good basis for your opinions. The part you circled there, let’s talk a little bit about how these consultation requests were. This is a request from a, whoever that is in the upper left corner, the requesting physician. Right?

A. That’s correct.

Q. To the consultant service, it looks like pediatric neurology maybe?

A. Maybe peds renal or peds ren.

Q. The fact that there is a number here, 6197, that is usually a designation that the requesting physician who has written the top part is a resident in training. True?

A. Well, I am not sure that is always true. We all have numbers, attendings and residents have numbers assigned to them for the purpose of paging and per dictation. At least in our hospital every physician, every nurse practitioner has a number.

Q. Well, in any event, what you are relying on is this part here that says, “Reason for consultation, requests 37-week infant born by crash C-section secondary to abruption during amniocentesis with likely anoxia-related”

A. “Seizures” it looks like.

Q. “Anoxia-related seizures and clinical evidence of ATD,” that is that acute tubular necrosis, the kidney damage. Right?

A. Correct.

Q. That is referring to some kidney valves?

A. Yes.

Q. The BUN and creatinine?

A. Correct.

Q. Now, what the consultant wrote, I guess you have not paid attention to?

A. I have.

Q. What the consultant wrote was, “Infant was delivered by crash C-section at outside hospital after suffering acute blood loss during when amniocentesis needle came in contact with placenta. At delivery amniotic fluid was grossly bloody and infant was pale and floppy. Apgar is 5, 5, and 9.” So in terms of whether this record really helps you to support your opinion that other people were thinking about the possibility of a placental defect, it is kind of a tie ball game, isn’t it?

A. Yes. I am just saying it raised the issue of whether there was, in fact, an abruption. I didn’t find any evidence that there was any bleeding related to the amniocentesis.

Q. Sure. But the, and even with, even what both of them said is they are not talking about a remote event, they are talking about an event after an amniocentesis.

A. Well, again, just because it is there doesn’t mean it happened. I think there is a strong potential that this is an erroneous conclusion and it got carried on in the UVA records in perpetuity. I think there is very little evidence that this baby had an injury related to an amniocentesis for the reasons I said before.

Q. Right. Now, let’s go to the reasons that you said about this being a prior detachment or abruption of the placenta. Okay?

A. Okay.

Q. Now, the first reason you gave us on your list of reasons, if I remember right, was that the —

MR. MALONE: And Mr. Peake, we have dealt with this issue about the —

MR. PEAKE: I did not have a chance to talk to Dr. Karotkin. Can I just approach?

THE COURT: Let’s take —

MR. PEAKE: I can just tell him, one second.

MR. MALONE: That is fine.

THE COURT: Members of the jury, we will let Mr. Peake talk to the witness for just a moment. This is part of the side bar that happened. Was I right? This is, again, something that doesn’t affect your deliberations and shouldn’t be considered. This is a housekeeping way of shoving things through and keeping things moving within the parameters that this law has established.

(Pause in the proceedings while Mr. Peake and the witness were outside of the courtroom.)


Q. Okay. So this reason number one that you gave us was you were relying on evidence that Mrs. Simpson, the weekend before the Monday morning amniocentesis, had cramping pain.

A. That’s correct.

Q. Okay. You got that from Dr. Roberts. True?

A. That is correct.

Q. Mrs. Simpson testified both in her deposition and at trial that she had back pain but no cramping pain over that prior weekend. Were you aware of that?

A. I was aware of that, yes.

Q. And you saw in the record of November 5th, the record of the amniocentesis, that it mentioned that immediately after the amniocentesis she has cramping back pain.

A. I believe that is true, yes.

Q. And she testified that she had huge cramping pain right after that amniocentesis. I will just ask you to accept that, you can imagine.

A. I think that is probably true, yes.

Q. Okay. So if she didn’t have cramping pain the prior weekend, that would undercut one of the key bases of your opinion.
A. Well, yes and no. Again, in my experience, women that have an abruption frequently present with lower back pain.

Q. We are talking about cramping pain was what you said you were relying on. Now you are changing it to back pain?

A. I am just saying back pain and/or cramping pain.

Q. Women get back pain all the time late in pregnancy. They are carrying around a heavy baby.

A. I am just saying it is not proof of an abruption, but certainly taken with all of the other evidence it certainly supports my opinion that there was an event related to an abruption or partial abruption prior to the amniocentesis.

Q. Even if she had no cramping pain?

A. Correct, yes.

Q. So any woman who has back pain late in pregnancy — well, skip that. Now, let’s talk about the anatomy of a placental abruption and where it happens. Let me do my own little diagram. This will probably be somewhat laughable, but here is the question I want to ask you. As I understand the anatomy, and you correct me if I am wrong, here we’ve got an amniotic sac and we have a baby inside here. And we’ve got an umbilical cord that connects up here to a placenta which is outside the amniotic sac. Right?

A. Correct.

Q. And then when these blood vessels or when the umbilical cord leaves the amniotic sac, by the way, there is a tight connection, otherwise the mom would be leaking amniotic fluid all the time. Right?

A. Correct.

Q. So what happens is everything kind of fans out in terms of blood vessels and we’ve got, up here we’ve got the mom’s uterus, and actually the uterus should be in a tight connection with the placenta. It has to be for life. Correct?

A. Correct.

Q. What happens in the placental abruption is on the mom’s side, you’ve got baby’s side next to the amniotic sac. You have got the mom’s side next to the uterus. Right?

A. Correct.

Q. Let me show you, this is a little better. So this connection right here, here we’ve got the placenta being in tight connection with the uterus, which is necessary for the baby.

A. Okay.

MR. KRASNOW: Can everybody see this now?


Q. In a normal situation. Right?

A. Correct.

Q. Okay. Now, to get an abruption, you get a detachment of the placenta up here and you start developing basically a sac of blood in between the uterus and the placenta. And it is what they call a potential space that then fills with blood. Right?

A. Correct.

Q. And I think as you told us the mom, it is usually maternal bleeding. Right?

A. Most of the time it is. It can be fetal bleeding, but my experience and I think the literature would indicate it was mostly maternal blood.

Q. As I remember your theory was that this was likely maternal bleeding and then mom developed low blood pressure and then that caused the lack of perfusion to the baby.

A. Something like that, yes. There was some event that occurred related to the abruption that interfered with the blood flow and oxygen delivered to the baby.

Q. Okay. But mom losing is blood. Right?

A. Typically, yes. There may be some blood loss from the baby as well.

Q. Sure, I understand. I understand. So here is, and let’s just take a quick look at what you identified for me a second ago when the jury was out, the standard diagrams of what a placental abruption can look like in a uterus. And what we have here, for example, on the, this illustration, by the way, there is three or three-and-a-half of them here, Frank Netter was a famous medical doctor who, actually I guess he went to medical school drawing rather than writing notes and people realized his talent and he became an —

A. An illustrator rather than a practicing physician.

Q. Okay. So Dr. Netter has written up these illustrations for us. They basically are showing us three different abruptions that are abruptions significant enough to cause injury to a baby. You don’t care about ones that are little tiny ones. Right?

A. Well, to me they seem like exaggerated abruptions for sure. I think there certainly is potential for much smaller abruptions to cause a problem as well.

Q. Well, you have got to lose enough blood
one way or the other for either the baby to lose enough blood or the mom to lose enough blood to cause loss of blood flow to the baby. Right?

A. No, that is correct, but I think you could still do that with a much smaller abruption than seems to be illustrated here.

Q. But you don’t know the size of the abruption that would be, say the minimize size to cause injury?

A. I don’t know, no.

Q. Okay. And actually a frequent sign of abruption is mom starts bleeding out of her vagina.

A. I don’t know how frequently, but certainly that is a sign of an abruption, yes.

Q. The only way that you can get an abruption and not have the mom bleeding is if somehow, it is like in this upper right area where this blood is and that is squeezed into a space where the baby is blocking the passage outside, to the outside world?

A. Again, here you can see the abruption is lower and is not coming through the vagina as well.

Q. Well, either one. But the point is you have got to have a cork in the bottle to prevent the blood from —

A. I would say as a generalization, sure.

Q. Okay. So we have no vaginal bleeding here. Right?

A. That’s correct.

Q. We have no signs, no evidence of mom having low blood pressure.

A. I think that’s correct, yes.

Q. And we have no signs of mom having a low blood count before this baby was born, do we?

A. I don’t recall what the matter of her hemoglobin was, I don’t recall that it was particularly low, no. I think it was low normal.

Q. Isn’t that a thing you would want to see?

A. Well, again, typically if her hematocrit were 42 or 43 and then it was down to 30, then you could anticipate based on that progression that there was some anemia. I don’t recall offhand what her hematocrit was.

Q. She has on, the only hematocrit that we have that is taken before the baby is born is right here. Now, she’s got, let’s look at the highlighted one. You see she’s got one on November 5th at 11:25 in the morning, and then right above that at 5 a.m. After the baby is born November 6th, she has another one. Right?

A. That is correct.

Q. So she has lost a little blood from the surgery, the C-section. Do you see that?

A. Yes.

Q. So it is a little on the low side after the baby is born, you see she has got a hemoglobin of 11 and a hematocrit of 31.7. Right?

A. That’s correct.

Q. And then we see the normal range being hemoglobin 12 to 16, hematocrit 36 to 46. By the way, just so we avoid confusion, these are adult norms, not baby norms.

A. I understand that, yes.

Q. Right?

A. Right.

Q. Okay. So now we look at her hemoglobin, which is taken about an hour or so after the biophysical profile. It is in the normal range, right, 13?

A. Just barely.

Q. And her hematocrit is also in the normal range.

A. Just barely over normal.

Q. Okay. Women often run lower hematocrits than men do. True?

A. That is true.

Q. Okay. So this doesn’t give you any evidence that mom has enough bleeding to cause such a loss of her own blood perfusion that her baby would have suffered a massive injury like this.

A. Well, what you could reason is that her normal hematocrit was 42, 43, or 44 and it bled down to 36. I am just saying that is a possibility. I am not saying it is —

Q. Speculation?

A. That is a possibility.

Q. Speculation, sir, isn’t it? I am just looking for an explanation.

MR. BATTEN: Your Honor —


Q. It is not an opinion that you can hold within a reasonable degree of probability because you didn’t look into what her normal hemoglobin or hematocrit was, did you?

A. You are just asking for possibilities. That is certainly a possibility.

Q. I am just trying to ask for what the real basis of the opinion is. So that is that one. Now, and by the way, a mom who is losing so much blood that she is losing perfusion to her baby, wouldn’t you expect her to faint or show some other signs of, you know, something serious going on?

A. I don’t think necessarily she would, number one. She is in bed in labor or prodromal labor. Number two —

Q. Sir, she was active all weekend long.

A. I am talking about in the hospital when her hematocrit was done on the 5th.

Q. No, we are talking about your theory of the prior weekend mom losing so much blood that she lost, that the baby lost blood flow. And yet we have a mother who by her testimony, her mother Pearlie testified, her husband testified, perfectly normal weekend, she is running around, nobody is feeling faint, nobody has got any problems.

A. Well, again, in my view you can still loculate or bleed a significant amount of blood behind the placenta. Might not affect the mother’s condition, she may feel perfectly normal, but may affect perfusion to the baby. It would, in my view, take more than 2 or 3 or 400 ccs of blood for her to have symptoms of being faint and tired.

Q. And you just don’t know.

A. I am just saying that is certainly a good possibility.

Q. Now, here is my other question going back to my little diagram here. If we have an amniotic sac that is totally intact when the baby is born and then Dr. Terry opens it up and he sees grossly bloody fluid, not outside the sac, but inside the sac. Right?

A. Correct.

Q. And we know the baby has been swallowing blood during the day of November 5th.

A. Correct.

Q. So tell me, how does that blood in the placenta from outside here get into the intact amniotic cavity —

A. Well, it is something —

Q. — unless there has been a needle stick and then there has been bleeding caused inside the amniotic sac?

A. Well, I have seen blood in the amniotic cavity without a needle stick being performed. And my assumption is that it breaks through somewhere between the integrity of the area behind the placenta and the amniotic sac.

Q. Your assumption is. You have absolutely no —

A. I am saying I have seen dark blood, I have seen clotted blood in the amniotic fluid at Cesarean section absent amniocentesis.

Q. But you have also seen amniocentesis that, where the patient develops so much bleeding that they have to have an emergency delivery.

A. I have not seen that, no.

Q. Well, you know about it, don’t you?

A. I think it is very, very rare.

Q. It does happen.

A. It can happen. It is very rare. In this situation, there is evidence that there was no bleeding an hour after the amniocentesis was done. I think it is hard to postulate that bleeding continued over the next 10 or 11 hours if there is no evidence of active bleeding at an hour after the amniocentesis was performed.

Q. But one thing missing from your whole line of testimony, because you told us you weren’t qualified, is the baby’s neurological cry for help, which namely the fetal heart tracings, are something you just don’t consider one way or the other because you are not qualified. Right?

A. I didn’t say I didn’t consider them. I don’t feel qualified to read them. I would certainly regard them based on an expert’s reading of them, but I don’t feel qualified to read them.

Q. You know that the baby’s heart rate lost variability during the day.

A. I am not so sure of that. I can’t testify that it did or didn’t. I am not convinced it did.

Q. All right. Well, you are not convinced because you have no independent way to tell. Right?

A. I think you would have to rely on the experts for reading those monitoring strips.

Q. Well, actually couldn’t you also just look at the, what the nurses wrote and what Dr. Lambert and Dr. Badillo noted about poor variability, loss of variability? Did you see all of that in the record?

A. I did, yes.

Q. Are you saying that Dr. Badillo and the nurses were wrong when they thought there was loss of variability in this baby?

A. I am not saying that they are wrong. I am just saying just because there is loss of variability doesn’t necessarily mean there is an absolute indication to proceed to Cesarean section.

Q. That is not your area.

A. Well, you are asking me about it.

Q. No, I am asking about the basis for an opinion that something had happened some prior day as opposed to on this very day.

A. Um-um.

Q. And I thought you said that everything was hunky-dory after the biophysical profile and therefore that is another reason why the bleeding must have been —

A. I said everything was fine from the bleeding standpoint, that there was no evidence of any bleeding after the amniocentesis.

Q. Okay. Now, one more thing on this placental abruption thing. Assuming it happened, there is no way that this thing went away from the weekend of November 4th or 3rd, whatever, until delivery. It doesn’t happen that way, it doesn’t get reabsorbed or something to —

A. No, I wouldn’t think so, not in a short period of time.

Q. So if she had a placental abruption on November 3rd or 4th, she would still have had it an November 5th?

A. I would think that would be true, yes.

Q. Have you seen pictures of abrupted placentas, have you seen an abrupted placenta itself?

A. Yes.

Q. It is usually pretty obvious if it has been bad enough to cause enough bleeding that it hurts the baby.

A. Again, I am not an expert when it comes to that, but certainly the ones I have seen have been pretty remarkable.

Q. Remarkable, pretty obvious.

A. Yes.

Q. Okay. Let me show you a quick picture. Tell me if this is kind of like the ones you have seen. This is Plaintiffs 3 marked for identification.

A. I think that is along the lines of what I have seen.

MR. MALONE: Okay. I will move that into evidence.

MR. PEAKE: Your Honor, we object to that being shown to the jury right now until we can deal with it.


THE COURT: Mark it for identification and I will consider it at a later time.

MR. MALONE: If I can ask just a little more foundational stuff.


Q. What we are seeing on this is a large area over on the left side of this photograph of the placenta where it is kind of, well, you tell me.

A. It looks like old clotted blood.

Q. Old clotted blood. And it is dark and ugly?

A. Well, it is interesting.

Q. To use my layman’s expression.

A. It is dark and coagulated. I wouldn’t describe it as ugly.

Q. It doesn’t look healthy. We will leave that for now. Here is my other question. If she had
the abruption before she got to that amnio, and by the way, do you have any theory why the baby would have a completely normal heartbeat before the amnio if it had already been hurt?

A. Well, I think there is a potential, again —

Q. Are we talking possibilities or probabilities?

A. I think in this situation there it is a probability that the baby sustained an injury and then recovered to the point where the heart rate was normal just prior to the amniocentesis; that there was some catastrophic event that occurred on the 2nd, 3rd, or 4th which affected the baby’s kidneys and brain, and the baby had some degree of recovery prior to the amniocentesis.

Q. You don’t know enough about fetal heart rates to know whether a brain damaged baby can put out a heartbeat that looks absolutely normal with normal accelerations and normal variability, do you, sir?

A. Well, again, in general I know that a completely devastated baby from the neurological standpoint would probably have a fixed heart rate and would not be able to respond to —

Q. Flat line?

A. Flat line, yes.

Q. Okay. But you don’t know any evidence that a baby can sustain a severe enough injury to have brain and kidney damage and yet somehow after that show a nice, bouncy, and variable and accelerative heartbeat?

A. Again, I think it depends on the degree of brain damage. I think in this situation there was not total brain damage. In the situations that I have been involved in where there is complete brain damage, these babies don’t recover from the neurological standpoint. They are essentially brain dead. I think this baby did have some degree of neurological activity. I think she is doing reasonably well 10 or 11 years later.

Q. Is she?

A. She is not in a completely vegetative state, let me put it that way.

Q. Of course, you have never met the child.

A. I have not. I have seen descriptions. I am saying she is not in a completely vegetative state.

Q. Well, I guess that is something. But here is the other thing I wanted to ask you. She’s, you say it is your opinion that if she had this detachment or abruption over that prior weekend, it is still going to be there on November 5th. Right?

A. It should be, yes.

Q. Okay. And we know it is in what they call an anterior placenta, here is the belly, here is the feet down here, here is the mother’s head. Right?

A. That is what is described as an anterior placenta, yes.

Q. The doctor’s ultrasound wand is going right up here. Correct?

A. Correct.

Q. And he is holding the wand, moving the wand around, Dr. Roberts was moving the wand around, looking for a pocket of fluid.

A. That’s correct.

Q. If there had been a pocket of blood there, especially a large enough pocket of blood that it would have caused severe brain and kidney damage to a baby it should have been visible.

A. Again, you are asking the wrong person. I am not an expert when it comes to reading them. You are putting me on the spot. I know from my reading of them —

Q. That is my job.

A. — for these kind of patients that sometimes abruptions are very hard to determine by ultrasound, so —

Q. Especially if the placenta is down on the bottom of the uterus. Right?

A. Again, I can’t offer you expert opinion when it comes to the likelihood of detecting an abruption by ultrasound.

Q. Okay. Well, didn’t it seem curious to you that we had in this case, even after Dr. Roberts did his ultrasound thing, we had what I guess in layman’s terms you could call a surveillance video that went on for half an hour or more of that mom’s placenta and uterus and everything inside. There were hundreds of images taken. There were 20 or so that had been preserved in the records, and yet there isn’t a single sign of anything detached in that placenta. Didn’t that seem odd to you?

A. Again, to me it didn’t. I am not expert in reading those studies and I didn’t feel I was qualified to determine how common or how rare that would be.

Q. I thought you said you read Dr. Filly’s testimony.

A. I did, yes.

Q. And he showed how the placenta is up here, the uterus is up here, and then all of the images he looked at absolutely no evidence of any placental abruption.

A. That’s correct.

Q. So basically what you are postulating is a huge but invisible injury.

A. Well, I am not sure I would put it that way. I am postulating that there is some event that occurred on the 2nd, 3rd, or 4th which was significant enough to cause this baby to have decreased blood flow, decreased oxygen to the brain and kidneys to cause this injury. It was more likely that it occurred during that time period than appeared after the amniocentesis or prior to delivery.

Q. All of this grossly bloody fluid in here and the baby swallowing the blood and vomiting up the blood, that is just coincidence? That is from the amnio that it is coincidence?

A. I don’t think it is from the amnio. I think it is from the abruption, whatever happened on the 2nd, 3rd, or 4th.

Q. How did it get into the amniotic cavity without breaking the membrane?

A. Well, I think it had to break the membrane to get into there, it had a leak in there somewhere.

Q. But we had intact membranes at birth according to Dr. Terry.

A. Well, you can still have intact membranes but still have some kind of leak which has sealed over or intermittently open.

Q. Right. That is not your area of

A. No.

MR. MALONE: That is all I have.