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Deposition of Toxicologist in Duragesic Fentanyl Patch Lawsuit

Posted in Duragesic / Fentanyl

In any fentanyl lawsuit, there is likely to be at least one toxicologist called upon to testify on behalf of the plaintiff or the defendant.  This is the deposition of a toxicologist from the Hendelson Duragesic lawsuit.

THE COURT REPORTER: Do you solemnly swear to tell the truth, the whole truth and nothing but the truth in these proceedings?

THE WITNESS: I do.

THE COURT REPORTER: Please state your full name.

THE WITNESS: Dr. Harold Schueler.

BY MR. ANGWIN:

Q. Dr. Schueler, I appreciate your being here today. My name is Ed Angwin. We have spoken I think once before, but we are here about the Adam Hendelson case.

A. Yes.

Q. Let me ask you to start with, what is your present position?

A. I am the chief Toxicologist at the Broward county Medical Examiner's Office.

Q. How long have you been the chief Toxicologist?

A. For nine years.

Q. As a chief Toxicologist, can you generally describe what your duties are and your responsibilities?

A. I have administrative duties where I do job performance evaluations. I do budgetary duties. I also set policy and procedure, as well as doing some testing. I do drug testing on both postmortem samples and antemortem samples, postmortem samples being from the autopsies and antemortem being in the RDY program that we do. So I do blood or blood and alcohol testing.

Q. How long have you been involved generally in the area of toxicology?

A. For probably 18, 19 years.

Q. Did you bring a copy of your CV?

A. No, I did not.

Q. I did not ask you to. I don't want to have to go back through this, but do you have a current CV?

A. I can print one out very quickly.

Q. Instead of going through your educational background and where you worked before, do you think it will be easier to get that? Is that all listed on your CV?

A. Yes, it is.

MR. ANGWIN: Can we take a break and get that?

MR. AUCIELLO: Yes.

(A recess was taken.)

Q. Dr. Schueler, during the break did you go out and get a copy of your most current curriculum vitae?

A. Yes, I have.

MR. ANGWIN: We will attach that as Exhibit 1.

(Plaintiff's Exhibit 1 was marked for identification.)

Q. Does the curriculum vitae set out your educational and professional experience?

A. Yes.

Q. You have a BA and MS and a Ph.D. in chemis try?

A. Correct.

Q. I would assume that area of academics applies to the area you work in today?

A. Yes, it does.

Q. With regard to being a toxicologist, have you performed analysis on blood and tissue samples during most of the 18 years you have been a toxicologist?

A. Yes, I have.

Q. How many times have you performed blood analysis to determine the presence of drugs?

A. Probably thousands of times.

Q. You are comfortable with that?

A. Yes.

Q. We are here today about the case involving of Adam Hendelson. Tell me about your involvement in that case.

A. Until recently the only involvement I had was that I received a patch, a Fentanyl patch, which then I put into our secure storage area.

Q. When you said recently, was there further involvement in the case of a more recent nature?

A. Only the communications that I have had about testifying today on the case itself.

Q. Did you have any discussions with Dr. Joshua Perper with regard to the case?

A. I may have. I don't have any recollection or any notes for this particular case. In looking over the file, I don't have any notes that I took, but I may have discussed this with him, because I do that routinely on cases, I will consult with him.

Q. We have already deposed Dr. Perper. Is it your understanding that Dr. Perper was the physician who performed the autopsy in this case?

A. Yes.

Q. He is the chief Medical Examiner for Broward County?

A. Yes.

Q. This is going to reiterate what you just said, but in your role as Chief Toxicologist, do you often consult with him with regard to toxicological issues related to an autopsy?

A. Yes.

Q. Does Dr. Perper consult with you because of your expertise in areas such as analysis of blood and tissues?

A. Yes.

Q. Does Dr. Perper rely upon you on occasion to determine how to interpret the drug findings in blood or tissue samples?

A. Yes.

Q. Do you know if he did that in this case?

A. Not that I am aware of.

Q. If Dr. Perper testified that he did, would that be —

MR. AUCIELLO: Objection.

Q. Let me ask you to assume for purposes of this litigation in this deposition, that Dr. Perper has testified that he did consult with you with regard to the drug levels that were found in the postmortem analysis and shown in the toxicology report related to Adam Hendelson.

MR. AUCIELLO: objection. You are talking about when he did the autopsy or interpreted the autopsy or when he gave his deposition?

MR. ANGWIN: Thank you. I will clarify that.

Q. Prior to giving his deposition, Dr. Perper testified he consulted with you with regard to the toxicology report and the drug level shown on the toxicology report, and that was of course after he had rendered his findings and after the autopsy was completed.

MR. ANGWIN: Is that a correct characterization?

MR. AUCIELLO: That's correct. I agree.

Q. I am going to ask you, there is something here marked Defendant's Exhibit 12, which appears to me to be a toxicology report.

A. Yes.

Q. where did you get that?

A. First of all, the toxicology report is kept in the toxicology file. we have a file for each case that we do analyses for and in this particular case we have a file for Adam Hendelson. Our case number is BME 2003-1738 and we have the file with all the reports and DATA pertaining to this case.

Q. That's the file you brought today?

A. That is correct.

Q. Do you know how those Defendant's Exhibit markers got on there?

A. I believe the toxicologist who reviewed the case, Michael Wagner, was deposed on this case and at that time the defendant's markers were placed on the case.

Q. I think it was either done during Wagner's or possibly during Perper's deposition, but it was done during one of the depositions in this case.

With regard to the file, does this appear to be a complete and accurate copy of the file, a copy or original of the file?

A. Yes.

Q. Have you ever seen the toxicology report which is marked as Defendant's Exhibit 12 prior to today?

A. Yes.

Q. When was that?

A. Well, I know that during the day that Dr. Perper was being deposed, I was asked to recover the Fentanyl patch for this case, so I pulled the case file and at that time I looked over the case file and retrieved the Fentanyl patch for the case.

Q. Do you recall whether you ever looked at the drugs and/or the concentrations of drugs shown on the toxicology report in order to try and interpret or analyze the levels shown on that report prior to today?

A. I may have. Again, I do that frequently with Dr. Perper, that I look over toxicology reports. The report may have been in his office when he was looking over all the records and he may have asked me for an interpretation and I may have provided him with an interpretation.

Occasionally he will even ask me to write up a report on a complicated case, but in this particular case I did not find a written report, but it is possible, very possible that I spoke with him on this case.

Q. When I spoke with your office today, I asked your secretary to have you bring any reference books or references that you may have referred to in rendering a toxicological opinion, and you are saying in this case you aren't certain you did, but normally are there texts or treatises or other learned documents that you rely upon in analyzing or interpreting postmortem toxicological reports?

A. Yes.

MR. AUCIELLO: Objection. Form.

Q. I see one of those is Disposition of Toxic Drugs and chemicals in Man by Randall Baselt?

A. That is correct.

Q. Is that one of the texts that you rely upon as a toxicologist?

A. Yes.

MR. AUCIELLO: Objection. Form.

Q. Tell me how you rely upon that book.

A. Quite often if we want to understand what the drug levels may mean of a particular drug, this book will provide us a range of drug levels for therapeutic, toxic or lethal levels.

It also provides pharmacokinetic type parameters that we can use to interpret levels of drugs. If you have got a case or where a person may have survived for a period of time, we can look and try to maybe estimate how much a drug was at an earlier time or to try to equate a drug level in the blood to how much a person may have had to ingest to get to that level.

Q. The book you brought today, if I am reading correctly, is the seventh edition?

A. Yes, it is.

Q. Was there also a sixth edition?

A. Yes.

Q. Prior to the seventh edition, would you have relied upon the sixth edition?

A. Yes.

Q. One of the drugs at issue in the case today is a drug called Fentanyl. Are you familiar with the drug called Fentanyl?

A. Yes, I am.

Q. Can you tell me your understanding of what that drug is?

A. It's a fairly potent synthetic narcotic analgesic that has a short duration of action, but it is used mostly for pain, for treatment of pain, and it can be administered by a transdermal patch, by injection or orally.

Q. With regard to the case we are here about today, is it your understanding that Adam Hendelson was wearing a Duragesic patch at the time he died?

A. Yes.

Q. That's shown in the records. Do you understand that the active ingredient in Duragesic is Fentanyl?

A. Yes.

Q. There are other drugs listed on the toxicology report including Citalopram, Diazepam, Diphenhydramine, Mirtazapine, Norcitalopram. Is that the metabolized version of Citalopram?

A. Yes.

Q. Nordiazepam, and again that's the metabolite from Diazepam?

A. Yes.

Q. Fentanyl?

A. Yes.

Q. And then in the urine it looks like there is tests for Benzodiazepines?

A. The Benzodiazepines, which is a class of drugs, which includes the Diazepam and the Nordiazepam.

Q. Those drugs I just listed, are you familiar with all of those drugs?

A. Yes, I am.

Q. Are those drugs that you routinely see in toxicological findings that you review in your role as chief Toxicologist for Broward County?

A. Yes.

Q. You performed tests where you analyzed whether those drugs were present in blood or urine?

A. Yes.

Q. When we deposed Mr. Wagner, we went through to some extent the protocol that's followed by this lab in performing postmortem analysis on blood samples. You are familiar with the way this lab does that testing, am I correct?

A. Yes.

Q. Have you looked in this case at the manner in which the testing was done to determine whether the tests were done properly?

A. I did not review the case to the extent of signing off on the case, but I did look over the results, yes.

Q. Do they appear to you to be accurate and correct results?

A. Yes.

MR. AUCIELLO: Objection.

A. Yes.

Q. What Mr. Auciello is doing, he is objecting to certain of my questions, so it would help if you paused just for a brief moment after I ask a question to give him time to interject.

A. All right.

Q. Can I look through this for a moment?

A. Yes.

Q. This looks like Defendant's Exhibit 3. Are any of those notes yours?

A. No, they are not.

MR. AUCIELLO: When I say Defendant's Exhibit 3, that will be Defendant's Exhibit 3 I think to Wagner's deposition?

MS. VARGAS: No, Perper.

MR. AUCIELLO: okay, it was Perper.

Q. For the record, what is that document that is just referred to?

A. This is our narrative. It's called a narrative or the cover sheet that we use. It lists case information, name, case number, age, date of birth, race, sex, and well as the address or the residence of the deceased, the date of the incident and the location of the incident, if it is available, the date and the location of the death, if it is available, and then a brief summary or narrative describing the circumstances of the case.

Q. Thank you for your thorough answer.

(A recess was taken.)

Q. I appreciate you getting that for us right now, Dr. Schueler. In the interim I was going to ask you a couple of questions with regard to Fentanyl generally.

A. Okay.

Q. Have you been involved in other cases during your toxicology career where Fentanyl was detected in a blood sample?

A. Yes.

MR. AUCIELLO: Objection.

Q. Have you been involved in other cases — by the way, let him interject his objections, please.

Have you been involved in other cases where Fentanyl was involved in a postmortem blood sample?

MR. AUCIELLO: Objection.

A. Yes.

Q. Have you performed gas chromatography, mass spectrometry or other tests where you actually found Fentanyl present in postmortem blood samples?

MR. AUCIELLO: Objection.

A. Yes.

Q. Am I correct that the GCMS is the way that you would determine that?

A. Yes.

(A discussion was held off the record.)

MR. AUCIELLO: I will put an objection on the record to questioning to this witness about his opinions and about Fentanyl generally and Mr. Angwin agrees it can be a continuing objection so I can stop interrupting the doctor.

MR. ANGWIN: That's correct.

Q. Dr. Schueler, let me ask you a little aside on that. Have you ever testified in a civil or criminal matter in your role as chief Toxicologist of Broward County?

A. Yes, I have.

Q. Was that in civil cases or criminal cases or both?

A. Both.

Q. How many times, approximately, have you testified?

A. Hundreds of times.

Q. Was that testimony related to interpretation or verification of toxicological results?

A. Yes.

Q. Was there any other area that it was related to?

A. Just pertaining to issues involving forensic toxicology.

Q. Would you consider yourself an expert in the area of forensic toxicology?

A. Yes.

Q. Have you been designated as an expert or found to be an expert in forensic toxicology by any courts?

A. Yes.

Q. Have you ever tried to testify in a case as a forensic toxicologist where it was found that you were not an expert?

A. No.

Q. In any of those cases where you have testified, have you testified regarding the presence of Fentanyl in postmortem blood samples?

A. Not that I can recall.

Q. Is Fentanyl a drug that you see very often in your role as Chief Toxicologist?

A. I don't know how you define very often.

Q. That's a good question.

A. But we do see it. It's not a rare drug that we see very rarely, but then there are many drugs that we see quite frequently, so I would put this as one of the ones that we see several times a year.

Q. You see it often enough that you actually test for it here at the lab?

A. Oh, yes. It's one of the drugs — it's common enough that we include it as — when we calibrate our instrument, we have a blood that we spike with many drugs. We have about 60 drugs that we calibrate the instrument for and Fentanyl is one of them. So I would say it's one of the top 60 drugs that we see.

Q. Are you aware of an institution called National Medical services?

A. Yes.

Q. What is your understanding of what National Medical Services is?

A. It is a private laboratory that we actually contract with them on occasion, that we will send out samples to them to have them test to do toxicology testing.

Q. Does National Medical services have a reputation in the toxicological community?

A. Yes.

MR. AUCIELLO: Objection. Form.

Q. Can you tell me, sir, what that reputation is?

MR. AUCIELLO: Objection. It's a different objection.

A. National Medical Services was I believe one of the first laboratories that built their reputation on doing forensic toxicology work. Many laboratories do clinical toxicology, which is quite different. when you are dealing with postmortem samples, there are a lot of other issues that have to be taken into consideration and National Medical services developed the reputation because they did analyses on postmortem samples.

They also developed techniques and had equipment for doing the very esoteric drugs that are not seen that frequently. So many laboratories that didn't have the resources or the time to develop procedures for certain drugs that they may see only once in a long time, National Medical services was a resource that they could send samples to to have the testing performed by them.

Q. Because Broward County sends certain samples for this testing, am I correct to assume that you are confident that National Medical services can properly and accurately test blood samples?

MR. AUCIELLO: Objection.

A. Yes.

Q. Do you know Dr. Robert Middleberg?

A. Yes, I do.

Q. Do you know him personally or professionally?

A. Both.

Q. Do you have an opinion as to his qualifications in the toxicological field?

MR. AUCIELLO: Objection.

A. I think he is an excellent toxicologist and I believe him to be very knowledgeable, and I believe his interpretation of toxicology I respect highly because I feel that he does a very good job.

Q. To be fair, do you know Dr. Bruce Goldberger?

A. Yes, I do.

Q. Do you have an opinion as to his reputation?

MR. AUCIELLO: I am compelled to object even though —

MR. ANGWIN: That's why I asked him.

A. Likewise he is also an excellent toxicologist and I respect his opinions, and I believe he is a very knowledgeable toxicologist.

Q. Would that be correct, that your opinion is both Dr. Middleberg and Dr. Goldberger are well qualified, well respected forensic toxicologists?

A. Yes.

MR. AUCIELLO: Objection.

Q. Before we get on to looking at Dr. Perper's file, I wanted to ask you some general questions. We were discussing Fentanyl.

A. Yes.

Q. Have you ever been involved as a toxicologist in a case where the cause of death was listed as being caused by Fentanyl or involving Fentanyl?

A. Yes.

Q. Do you know approximately how many times you have been involved in such a case?

A. No, I do not know specifically, but I would have to say it's quite often.

Q. During your role as Chief Toxicologist, in the cases you have looked at where Fentanyl was involved, have you seen a range of postmortem Fentanyl readings from the blood samples?

A. Yes.

Q. Can you tell me the highest Fentanyl level you recall seeing in the blood sample?

A. Not right offhand. I believe it would be maybe close to 50 nanograms per mil.

Q. I assume that would be a pretty high one?

A. Yes. Now, I am capable of querying our database to see what levels we have seen in the past. That's a possibility, to actually query all Fentanyl cases for the last seven to eight years.

Q. If we were going to do such a query, who would be the person to contact for that?

A. Me.

Q. Can you tell me what file was just brought in to you?

A. We have, similar to the toxicology file, which keeps — this was separate from that. There is a separate file folder, which is from the investigations section, and it has or it contains all the information pertaining to the autopsy findings, the photographs, the investigator's notes, Dr. Perper's notes and just pretty much it includes everything, excluding the toxicology raw data.

Q. Dr. Schueler, I am not trying to limit you in any way, but we have both through Dr. Perper's deposition and Mr. Wagner's and have gone through a lot of this, so I know you are answering my question, I appreciate that, but I might want to cut you off on some of those explanations because we have been through that. We are not asking you to authenticate what this is.

Am I correct, this would be the file from Dr. Perper related to Adam Hendelson's autopsy?

A. Yes.

Q. Can you open it up and see if there is a toxicology report in there?

By the way, as you look through that, if there is anything that reflects your involvement in the case or refreshes your recollection, just let us know.

You are welcome to look through that, but the document you pulled out is the document I want to ask you questions on.

A. There is actually one other thing I also should note, that back on January 21 —

Q. Let me stop you right there. Are you looking at the outside of what we referred to as Dr. Perper's file?

A. Yes.

Q. Okay, thank you, sir.

A. On the outside, those are my initials and the date January 21, 2004 was placed on the outside of the file, which indicates that I took the toxicology report and placed it in this file and stamped it and dated it.

Q. It appears there is a stamp that says Tox Report Filed and there is a line and then it has the word Date under it?

A. Yes.

Q. Within that stamped area, are you saying that's your handwritten note saying that on 1/21/04 you put the toxicology report in this?

A. Yes.

Q. That's something you routinely do in your role?

A. No, that is not. The only time that I will place a toxicology report in here is if our secretary is out for a period of time and there may be a request for the report to be in the file in her absence. So this is not usual, but it does happen on occasion, where I will place the file on there, but it's only a clerical function.

Q. With regard to placing the toxicology report in what I am referring to as Dr. Perper's file, in all of the cases where Dr. Perper or another physician does an autopsy, is the toxicology report placed in the doctor's file?

A. Yes.

Q. I have asked you to pull out a document. We will mark that as Plaintiff's Exhibit 2. Does that appear to be the same toxicology report that you looked at that was in what I am referring to as the toxicology file?

A. Yes, it is.

Q. I will note that on the version you are looking at there are some handwritten notes. Do you see those?

A. Yes.

Q. Do you recognize that handwriting, sir?

A. That is my handwriting.

Q. Seeing that, does that indicate to you that at some point in time you looked at the toxicology report and made some type of determination with regard to the drugs that were found on the toxicology report?

A. Yes.

Q. Seeing that now, does that refresh your recollection as to when that occurred?

A. I can't give a specific date, but yes, I do recall in seeing this that I did discuss this with Dr. Perper.

Q. Would that have been prior to the time of his deposition?

A. Oh, yes.

Q. It was not done in conjunction with the autopsy?

A. No. As a matter of fact, I probably did this and took these notes around about the time that I put — sometimes after I consult with Dr. Perper and talk to him about it, if he is signing the report and making a decision, sometimes I will then take the report and stick it in the case file and stamp it right away.

So I can't say definitely, but that does happen to where I will actually take the report and put it in the investigator's file and stamp the front of the case file and initial and date it. So it's probably around the time of January 21, 2004.

Q. Regardless of when that occurred, you are comfortable that those are your notes and that that reflects your analysis of the postmortem drugs that were found in Adam Hendelson?

A. Correct, yes.

Q. That was something you did in consultation with Dr. Perper?

A. Yes.

Q. You stated earlier, but am I correct, Dr. Perper relies upon you often times and apparently in this case to explain to him the toxicological significance of drugs that are found in postmortem samples?

A. Yes.

MR. AUCIELLO: objection. Form.

(Plaintiff's Exhibit 2 was marked for identification.)

Q. We have just marked a copy of the toxicology report with your handwritten notes as Plaintiff's Exhibit 2. I am going to look at my copy and let you look at the original.

A. Okay.

Q. If you could slide that a little bit over so Mr. Auciello can see it.

First of all, let me ask you, there are notations written by certain drugs and there are not notations written by other drugs. What is the significance of that? For example, you wrote therapeutic by Citalopram, but there is nothing written by Norcitalopram.

A. The Norcitalopram we do not have a quantity. You will notice under the quantity headed concentration, we do not have a quantity for that. We did not quantify Norcitalopram. In other words, we do not have a standard in-house that would allow us to go about and actually get a number for the Norcitalopram, for the metabolite.

Q. That is probably a bad example for me. A better example would be by Nordiazepam, although there is a quantification under the concentration of less than 0.05 milligrams per liter, you don't have any handwritten notation that I see by that.

A. That, the Nordiazepam, I think at the time when I was discussing this with Dr. Perper, I was only giving him the ranges or the levels for the parent drugs that were found in the system and not the metabolite.

Q. I also note that you didn't write anything by the drugs that were detected in the urine.

A. Correct. For various reasons we do not quantify. You will notice again in the Concentration column there is no value, no concentration for the drugs in the urine, and levels, drug levels in the urine are really not useful in interpreting drug, the effects of the drugs.

Q. I'll note that on the left-hand side under specimen, by Blood there is a parenthetical that this has heart. Do you see that, sir?

A. Yes.

Q. Are you comfortable with analyzing results from heart blood in your role as chief Toxicologist?

A. I don't understand what you mean by comfortable.

Q. Is heart blood a source that you normally use or have normally used for blood samples and that you have tested in your role as chief Toxicologist?

A. We have moved away from using heart, heart blood.

Q. I am not trying to limit you, I am actually going to get to that question next, but back when this test was done you were using heart blood?

A. That is correct.

Q. And you were comfortable that that was the routine back at that time, that was the procedure?

A. Yes.

Q. We will come back to that area. I am sure Mr. Auciello will, so we are not trying to trap you into something there.

Let's go through these briefly if we can. First of all, you have written therapeutic, Subtherapeutic and other words by some of these drugs. Did you rely upon any source in reaching your determination as to what word to put beside the drugs that are shown in this toxicology report?

A. Probably just from my recollection, when I consult with Dr. Perper, quite often I may be in his office and I don't have the reference available, but I do try to correlate it to what we find at least in Baselt and other references.

Q. Let's go through these briefly. The first drug that I am noting on here is called Citalopram.

A. Yes.

Q. Do you know what that drug is?

A. Yes.

Q. What is that drug?

A. It's Celexa. It's a serotonin reuptake inhibitor.

Q. Is that an antidepressant?

A. It is an antidepressant.

Q. Is the word written beside that therapeutic?

A. That's correct.

Q. It says positive next to it, which means the drug was detected?

A. Yes.

Q. There is a concentration next to it. What is that?

A. It is 0.55 milligram per litre.

Q. There is another word written out to the right of that. What is that word?

A. That is also therapeutic.

Q. It looks to me you started to write things on the right side, saw you didn't have enough room and then you went back to writing them in the middle?

A. That's correct. That's what I did.

Q. Both of those say therapeutic. Is it your position that the level of Citalopram shown in this postmortem sample is a level within the therapeutic range?

MR. AUCIELLO: Objection.

A. Yes.

Q. From a toxicological point of view, what does the word therapeutic range mean?

A. Therapeutic would be the concentration of a drug in the blood that would correlate to if a person was prescribed a medication by a physician for a certain treatment and that person was compliant in taking the medication according to the prescription, they would receive or they would achieve blood levels that would be considered therapeutic.

Q. I think is sort of relevant, it is relevant for what we are about to go through, but is there sort of a scale you go through if a drug is present, for example — I guess the first would be it's not detected and then if it is detected in the low level you might use a word, I think there is a word subtherapeutic here.

I am not trying to limit you to that, but can you tell me if there is a range of words you used to describe the levels of drugs you find in no particular drug, but just the levels that you might find in a blood sample?

A. Yes.

Q. Can you tell me what that range is going from no drug up to the highest?

A. Okay. I start off usually saying none detected. Just because a drug is not detected doesn't necessarily mean that it couldn't be there below a detection limit, but it is, so I don't describe drugs usually as negative, but none detected.

When a drug is in a range that is very low, in a trace amount, we know it's present, but the level is lower than what would be considered or consistent with a therapeutic level, then I refer to that usually as subtherapeutic.

Usually I will use subtherapeutic, especially with drugs that are like seizure medications, where if a person is supposed to be taking an anti-seizure medication and we are looking at an autopsy as to whether or not a person may have had a seizure, it's very important to know whether or not the person was compliant, because a low level of drug or subtherapeutic level of a drug could be significant in those cases.

Then when a drug is in the range which would be expected for a person who is prescribed the medication for whatever condition and what the expected blood concentration should be for that dose, I refer to that level as being therapeutic.

Sometimes we will have cases where there is a drug that's higher than the therapeutic range, but it's — there are certain drugs that have a high therapeutic or high therapeutic index, where there is a wide range between a therapeutic dose or a toxic or lethal dose and sometimes drug concentrations will be in this area, this gray area that is in between, it will be higher than therapeutic but it will be less than reported toxic or lethal level, and usually I will refer to that as being elevated. It's just higher than therapeutic but we don't — it's in an area where there have been no reported toxic or lethal cases.

Then I go to the toxic level, which is a level at which a person could have severe side effects of coma, death even in some cases, but they usually exhibit symptoms that cause hospitalization or some kind of treatment for survival. People do survive at these levels, but like I mentioned, some people may die. So I refer to that as the toxic range.

Then the lethal range is generally when a person reaches that level, there is a good probability that a person will die from that concentration of the drug in the blood.

Q. Thank you very much, sir. That answered all of my questions.

So applying the ranges you just talked about and going through your notes here, I wanted to go through those briefly.

The Citalopram we just discussed. That's therapeutic.

It looks like Diazepam and Diphenhydramine were both subtherapeutic?

A. Correct.

Q. I got corrected by Mr. Wagner. I called those trace and he said trace is not the word we use anymore.

A. Yes.

Q. You explained that?

A. some laboratories still use the word trace, but we have opted to use subtherapeutic.

Q. On both Diazepam and Diphenhydramine, I will note that under the Concentration there is no actual number given, it just less than 0.05 milligrams per litre?

A. That is correct.

Q. Am I correct on both of those tests, 0.05 milligrams per litre would be the smallest calibrator you had used to test for the drug?

A. That is correct.

Q. When I say smallest calibrator, can you tell — lowest calibrator would be the better way. What is the lowest calibrator set forth when you do your drug analysis?

A. Actually depending upon the drug, the calibrator can be different. If we are looking at drugs where we are expecting low concentrations, the calibrators may be lower or the lowest calibrator may be lower, but routinely quite often or for most of the drugs, we use — we have to actually, before we do an analysis or when we do a batch of cases and we are doing an analysis, we have to run various concentrations on the instrument so that we can go ahead and create what we call a calibration curve.

So we run multiple bloods that were certified to be in our lab to be blank or free of drug. We add drugs to them at different concentrations, and the lowest concentration that we add would be 0.05 milligram per litre.

Q. Let me ask you why do you choose that as the lowest level, for example, in testing for Diazepam or Diphenhydramine?

A. Well, again, I said it depends on which drugs, because drugs like Fentanyl and xanax or Alprazolam we have lower calibrators. We have a lower calibrator for them, because the levels that we are looking for are going to be lower, but for these two drugs, anything below a 0.05 milligram per litre for Diazepam or Diphenhydramine would be considered subtherapeutic and something that we are not too concerned about.

Q. Would that be correct, that you set the lowest calibrator at the lowest level where you would find the drug to be significant if you found that concentration?

A. Yes.

Q. Anything below that you would not deem to be significant?

A. Correct.

Q. By the way, what is Diphenhydramine?

A. It's Benadryl, an antihistamine.

Q. If a person has less than 0.05 milligrams per litre of Diphenhydramine in their system, can you equate that with how much Benadryl a person might have taken in the 24 hours prior to their death?

MR. AUCIELLO: Objection.

A. No. Really, because we don't know. It could have been significant at one point in time and it came down. So to sort of back extrapolate without other information, no.

Q. The next drug I see there is called Mirtazapine?

A. Correct.

Q. I didn't ask you what Diazepam is. Do you know what Diazepam is?

A. It is Valium. It's a drug that's, you will notice in the urine where we have Benzodiazepines, the class of drugs for the benzodiazepines includes Valium, Diazepam, so it would be a CNS depressant drug that is used. It originally came out to induce sleep. It's a sedative hypnotic type agent.

Q. Mirtazapine, do you know what that drug is, sir?

A. It's Remeron. It's tetracyclic antidepressant drug.

Q. By that it looks like you have written elevated possibly low toxic. Did I read that correctly, sir?

A. Yes.

Q. Do you know what the therapeutic range for Mirtazapine is?

A. The therapeutic range is going to be more in the 0.01 to 0.09 range. I don't want to get confusing, but sometimes we report drugs in nanogram per millilitres. You will notice that for Fentanyl because the levels are lower. So usually for therapeutic doses of Mirtazapine, we can get down to like 10 nanograms per mill, which would be a 0.10 milligram per litre. So that's typically what you would expect to see in the therapeutic range.

Q. Is that something that's in Baselt or another source or is that something you know from your experience?

A. It is in various references, but it is also in Baselt.

Q. Is there a recognized lethal range for Mirtazapine?

A. When you say recognized, I am not sure —

Q. Recognized isn't the proper word. How about is there a lethal range that you rely upon?

A. Generally the levels are going to be higher. That's why I had mentioned for some drugs there is a wide range between therapeutic and toxic and lethal. For Mirtazapine those levels are going to be higher.

This level, the level that we found, 0.30 milligram per litre, falls in this gray area. It's much higher than the .1 and below, but then at the same time it's not in that toxic lethal range. I know that Baselt does have values for lethal doses of Mirtazapine and I believe they are on the order of like .8 and above.

Q. The next two drugs, the Norcitalopram and Nordiazepam, I think you said those are the metabolites of two different drugs and you didn't put anything by those?

A. Correct. The Nordiazepam level of less than 0.05 would be considered consistent with a parent drug being subtherapeutic.

Q. The next drug I will come down to is Fentanyl, and it looks like you have written low toxic (3-28) and then 8. —

A. I think that's the mean, the x with the bar over it would be the mean equals 28 — I'm sorry, equals 8.

Q. There is another parenthetical.

A. Correct.

Q. Let me ask you what do your notations indicate there?

MR. AUCIELLO: Objection.

A. I probably took this from Baselt indicating that in similar cases, again, the drug levels in individuals for Fentanyl can vary depending upon the mode of administration, so people who take the drug intravenously may have much higher levels of the drug.

I believe there is in the literature reported ranges for Fentanyl, people who use Fentanyl patches and the range was found to be toxic from or the cases reported were anywhere from 3 to 28 with the average being 8 nanogram per millilitre.

Q. what level was found in Adam Hendelson's blood?

A. 9.42 nanogram per millilitre.

Q. That would be above the mean toxic?

A. That is correct.

Q. Would you consider that to be in the lethal range?

MR. AUCIELLO: Objection.

A. Again according to Baselt, the idea is that anything over 3 can be considered toxic to lethal.

Q. I am going to ask you a little bit about then and then hopefully finish up quickly.

Let me premise this with one statement. Premise your answer to this on the assumption that Adam Hendelson died from some drug or combination of drugs. First of all, is that your understanding of the finding in this case?

A. Yes.

Q. You have got no dispute with that, do you?

A. No.

Q. Assuming that that's correct, and that's what Dr. Perper has said and that's what you have said, and really that's what every expert has said, which of the drugs noted in the toxicologic report do you consider to be the most significant with regard to the cause of death of Adam Hendelson?

MR. AUCIELLO: Objection. Form and foundation.

A. My opinion would be the Fentanyl.

Q. Is that by far the most significant drug to you as a toxicologist?

MR. AUCIELLO: Objection.

A. Yes.

Q. Although Dr. Perper listed, and properly listed Citalopram and Mirtazapine with the Fentanyl in there, is the Citalopram in a range that you would consider as a toxicologist to be lethal?

A. No.

MR. AUCIELLO: Objection.

Q. In fact it's in the therapeutic range?

MR. AUCIELLO: Objection.

A. Correct.

Q. Would the Mirtazapine itself be considered to be in the range that you consider to be lethal or toxic?

MR. AUCIELLO: Objection.

A. No.

Q. In combination with any drug other than the Fentanyl, singularly or in combination, any drug other than Fentanyl found in this toxicology report be considered to be lethal or toxic?

MR. AUCIELLO: Objection. Form.

A. No.

Q. Am I correct that as the Chief Toxicologist for Broward County, it is your opinion that the only drug indicated on this toxicology report that was actually involved in the death of Adam Hendelson was the Fentanyl?

MR. AUCIELLO: Objection.

A. Can you state that one more time?

Q. It was a bad question. You know what? I will withdraw that question. There is an old statement you can't ask too many questions or you shouldn't ask too many questions.

One of the issues in this case is whether the toxicology report accurately reflects the drug levels that were in Adam Hendelson's body at the time he died.

A. Yes.

Q. I think we sort of touched on that earlier when we started talking about the heart blood.

A. Correct.

Q. Am I correct that today the procedure in the Broward County Medical Examiner's Office is to do what is called a peripheral draw of blood?

A. Yes.

Q. By peripheral, that means to take it from a place other than the heart cavity?

A. Correct.

Q. Is there a reason for that, sir?

A. Yes.

Q. What is that reason?

A. It has been found really since about 198 — late 1980s, that drugs have the ability to get absorbed into the fats and the tissue mostly in the central cavity. That could be in the fat of the heart, in the liver, in the stomach, in many of the organs in the central region, because drugs do have the ability, they are soluble with fats and so they get into the fats.

Then upon death what ends up happening is these drugs then slowly can be leached out or they migrate out of the fat or the tissue and get into the blood of the surrounding or the blood that's in the surrounding organs. So heart blood values can be artificially higher than they were at the time of death.

Again, it depends on the drug. Different drugs have different mechanisms and the timeframe and some drugs don't exhibit what we refer to as postmortem redistribution, but quite a few drugs do.

Q. with regard to postmortem redistribution, I am going to go through the drugs that were listed on the toxicology reports having any possible involvement with Adam Hendelson's death and ask you about those.

The first of those is Citalopram. Is Citalopram subject or has it been found to be affected by postmortem redistribution?

A. Yes, I believe so.

Q. What about Mirtazapine?

A. I have not found any literature pertaining to Mirtazapine about postmortem redistribution, so I don't know.

Q. What about Fentanyl?

A. Yes.

Q. Diphenhydramine?

A. Yes.

Q. Diazepam?

A. Yes.

Q. I think we just listed every drug there other than you said you weren't sure about the Mirtazapine, correct?

A. Correct.

Q. I know there are various factors that some studies have looked at on postmortem redistribution, such as the time lag between the death and the time when the blood is taken, the condition the body is taken?

A. Yes.

Q. Again you mentioned where the blood is taken from?

A. Yes.

Q. Am I correct that there are numerous factors that may affect postmortem redistribution?

A. Yes.

Q. Am I is also correct that it is impossible to tell whether postmortem redistribution actually occurred in a case such as this one?

A. That is correct.

Q. So you don't know whether it occurred or not, do you?

A. No.

Q. Have you ever seen any studies with regard to postmortem redistribution of Fentanyl?

A. Just what has been reported in the literature and in Baselt.

Q. The only, I use the word study loosely, the only collection of data I have seen specific to Fentanyl is the study by Anderson and Muto?

MR. AUCIELLO: Objection.

Q. Have you seen that study?

A. I don't recall the authors.

Q. Have you studied anything in depth about potential postmortem redistribution of Fentanyl?

A. No, not particularly Fentanyl, but drugs in general.

Q. Let me ask you this. As a forensic toxicologist, because it is impossible to determine whether postmortem redistribution has occurred on any of the drugs in this case, are you comfortable relying upon the results you were given by your lab?

MR. AUCIELLO: Objection. Form and foundation.

A. For Fentanyl, the amount, even taking into consideration the postmortem redistribution, I would say that the level would still be significant.

Q. If postmortem redistribution did occur, and I am not saying it did, but if it did occur, would it be your opinion that it would have affected all of the drugs which are subject to postmortem redistribution and not just Fentanyl?

MR. AUCIELLO: Objection.

A. Yes.

Q. So all of the drugs, the results would be higher, including the Fentanyl, if indeed postmortem redistribution had occurred?

MR. AUCIELLO: Objection.

A. The results on our report would be higher?

Q. Yes.

A. Yes.

Q. Would that be a further basis for you to opine that the Fentanyl would then again be the only drug of significance with regard to the cause of death of Adam Hendelson?

MR. AUCIELLO: Objection. Form.

A. Yes.

Q. Thank you, sir.

A. You are welcome.

CROSS-EXAMINATION

BY MR. AUCIELLO:

Q. Doctor, are you disagreeing with Dr. Perper as to the cause of death?

A. No.

Q. So when Dr. Perper said it was a combination of these drugs that caused Adam Hendelson's death, you are not disagreeing with that?

A. No.

MR. ANGWIN: Objection to the form.

Q. Do you consider yourself qualified to disagree with Dr. Perper's conclusions as to cause of death?

A. Do I find myself qualified?

Q. Right.

A. There are occasions when I disagree with him in his cause, but he is the chief Medical Examiner who will make that determination.

Q. Okay.

A. I am the toxicologist. I know what the results are from toxicology, but he has the pathological findings, the microscopic slides. So he has an understanding of the entire picture.

Q. You don't disagree with him in this case?

A. No, I do not.

Q. Doctor, you acknowledge that there is postmortem redistribution as it relates to Fentanyl, correct, it does occur?

A. Yes.

Q. And is that the reason or one of the reasons why currently your office does not use heart blood, but instead uses peripheral blood?

A. Correct, yes.

Q. Using peripheral blood allows your findings as to drugs that are affected by postmortem redistribution to be more accurate, correct?

A. Correct.

Q. Conversely, the fact that heart blood is used, it undermines the reliability of the readings you get with Fentanyl, correct?

A. Correct.

MR. ANGWIN: I would like to interject a continuing objection to your whole line of questioning. I just don't want to interrupt.

I'm sorry, were you trying to say something, sir?

A. I was just going to make a clarification on postmortem redistribution. Most of the literature, you have to remember that all of the results in these values and these ranges were established before people started to realize about the artifact of postmortem redistribution, so a lot of these ranges are established from heart blood.

So what is I think more the issue is the accuracy. I think what you were saying is the accuracy of the value, the range or the spread is going to be much greater using a heart blood because the fact that the values, the concentrations can be much higher or lower depending upon the postmortem interval and things of that nature, but the actual numbers themselves, the ranges that were established in the literature for the most part early on were established from heart.

So what we are doing is we have a drug concentration that was determined in the heart blood and we are equating it to values in the literature that are probably most likely more established also in heart blood.

So the literature is catching up, but most of the studies that were done and most of the values are still reflective of heart blood concentration.

Q. But Doctor, are you able, using your own term, to back extrapolate a level of Fentanyl at the time of death using heart blood, a heart blood level taken after death?

A. No.

Q. Because there are multiple factors involved with postmortem redistribution, correct?

A. Yes.

Q. It would be where the blood is drawn, correct?

A. Yes.

Q. It would also be how much time passed between death and the drawing of the blood, correct?

A. Yes.

Q. None of those factors are accounted for in the literature?

A. Correct.

Q. You have the Baselt book in front of you. The Baselt book doesn't account for the factors in the literature?

A. No.

Q. You aren't able to tell us as you sit here today what Adam Hendelson's Fentanyl level was at the time of his death, correct?

A. Correct.

Q. You are able to tell us what his Mirtazapine level was, correct?

A. Well, to the same certainty that I have for the other drugs.

Q. I thought you indicated that Mirtazapine was not affected by postmortem redistribution.

A. I don't know. I haven't seen in the literature what we refer to as a blood femoral blood ratio. Usually what most studies are doing now is they are quantifying the drugs in heart blood, quantifying them in femoral blood and then giving a ratio to sort of give you feel as to how much drug may be redistributed.

Q. If we assume that Mirtazapine is not governed by the principles of postmortem redistribution, that postmortem redistribution does not occur with it at any noticeable level, would the .3 level found in Adam Hendelson's blood indicate that he took, would have had to have taken the prescribed amount of Mirtazapine?

MR. ANGWIN: Objection to form.

A. Again, these levels that I indicate that are elevated, quite often in live people when they take a serum of plasma, they measure it, the values can be low. Quite frequently there have been cases in the literature where they will report values for postmortem instances where people were on a drug as some type of therapy and that it's not, it doesn't contribute to the cause of death, but they are just values and this is where this drug level seems to fall. It's in an elevated level. It's not consistent with a therapeutic level, but it's not in the toxic lethal level.

Q. I guess that goes beyond my question. My question was simply does that reading indicate, if it was in fact the level that Adam Hendelson had at the time of his death, indicate that he took more than the prescribed amount of Mirtazapine?

MR. ANGWIN: The same objection.

A. It would be difficult to say.

Q. It's difficult to say with all these drugs, I like your word back extrapolate, to what the level was at the time of death, correct?

A. Yes.

Q. Is it true that there is an additive effect of these drugs?

A. To some extent.

Q. Which of the drugs listed are central nervous system depressants?

A. Well, the valium, which is a subtherapeutic level. Diphenhydramine and the Fentanyl. The Mirtazapine and the Citalopram are probably weak CNS depressants. They wouldn't be characterized as being CNS depressants, but they would have weak CNS depressant activity.

Q. But there are a number of CNS depressants that were in Adam Hendelson's blood when it was tested?

A. Yes.

Q. We talked about ranges such as the range in Baselt. Are you familiar with a concept related to opioids called tolerance?

A. Yes.

Q. Is that when a person is using opioids for a period of time, they may develop the ability to have a higher level in their bloodstream?

A. Yes.

Q. And in fact need a higher level to achieve the intended effect of reducing your pain?

A. Yes.

Q. Have you reviewed any studies concerning tolerance in patients using Fentanyl patches?

A. Not recently, but I do know that individuals do develop a tolerance and may require higher doses of Fentanyl.

Q. Are you familiar with literature by a doctors Davis and Swenson in which they refer to the Fentanyl challenge?

A. No, I am not familiar with that.

Q. Are you familiar with any case reports when the patients were noted to have extremely high blood levels due to tolerance using Fentanyl patches?

A. I am not familiar with that.

Q. Are you familiar with a document called a Tenet Blood Study which measured levels of various pain medications in a person's blood?

A. No.

Q. Is it within your field of expertise to determine where, how much tolerance may affect a person's susceptibility to respiratory depression?

A. We take that into consideration when we look at the levels, but again, it's very difficult. That's more from the history of the individual.

Q. so if people in the field of anesthesia determine that one patient requires 17 nanograms per millilitre before they go into respiratory depression, that doesn't translate to everyone?

A. That is correct.

Q. One patient could require, as you said, 3, another patient could require 28?

A. Yes.

Q. You don't have any knowledge of Adam Hendelson's history of using opioids so you can comment on how much or how little he was tolerant of opioids?

A. That is correct.

MR. AUCIELLO: Thank you, Doctor, I have no further questions.

REDIRECT EXAMINATION

BY MR. ANGWIN:

Q. I have three questions for you and I appreciate your time.

I think in response to Mr. Auciello's question, you stated that there were a number of drugs in the toxicology report found in Adam Hendelson's blood that exhibited for what we call CNS or central nervous system depressive qualities?

A. Yes.

Q. Even though there were several drugs, was there any drug of a significant level to you other than the Fentanyl with regard to CNS depression?

A. No.

Q. Is the amount of Fentanyl that was detected in Adam Hendelson's blood higher than the amount that you would expect to find from a person using a single Duragesic patch?

MR. AUCIELLO: Objection.

A. Yes.

Q. Significantly higher?

A. Yes.

Q. Last question. Is it your opinion —

A. I should also clarify that that would depend on the dose of the patch too, because the patch could be a different. There can be several different doses, from 25 microgram per hour I believe it is to 50 to 75 to 100.

Again from the literature, generally levels, blood levels with a person having the highest dose would probably be around 3 to 4 nanogram per millilitre using Duragesic patch.

Q. That's for a 100 microgram patch?

A. That would be for the 100 microgram patch.

Q. The number here is two or three times higher than that?

A. Correct.

Q. It is your opinion, Doctor, that Adam Hendelson died from a Fentanyl overdose?

MR. AUCIELLO: Objection.

A. Like Dr. Perper said, it would be a combined drug over-dose. When I put the Fentanyl as being low toxic, again the definition or my definition of toxic means that it's a level at which people could survive, but they may experience severe symptoms or symptomatology associated with that drug.

So the fact that we can't say that that drug alone could have caused the death, it wasn't a lethal level of Fentanyl, so it wasn't a lethal level that caused this death, but it was the Fentanyl along with the other drugs that would have that effect, and that's why I agree with Dr. Perper in saying it was a combined drug.

Q. I am not asking you to disagree with Dr. Perper by the way. My understanding of forensic toxicology is that in determining cause of death and in determining which drugs are significant, you list all the drugs that had any possible effect on the death; is that correct?

A. It depends.

Q. For example, in this case.

A. Yes, in this case it was the drugs that appeared to have the most significant contribution to the death, and in my opinion the Fentanyl is the drug that had the most significant contribution.

But again, because of the fact that an individual, taking into consideration the postmortem redistribution, taking into consideration the possible tolerance of an individual, the other drugs have to be somewhat worked in there because it is possible that a person could survive that level of Fentanyl.

Q. And we are not saying that that's a level that will kill everyone, that's not the question, the question here is whether it killed Adam Hendelson.

With regard to postmortem redistribution, am I correct that the correct statement would be Fentanyl may exhibit postmortem redistribution?

A. Yes.

Q. You are not sure if it does or doesn't in this case?

A. It has shown to exhibit postmortem redistribution, but again, those values can be less than 1 to greater than 1.

Q. Postmortem redistribution can actually lower the number, can't it?

A. In some cases yes.

Q. In this case, even though there are three drugs listed, I believe you testified earlier and it is still your opinion that the Citalopram and Mirtazapine are not at the level where they were together or independently have caused the death?

MR. AUCIELLO: Objection.

A. Correct.

Q. And absent the Fentanyl, Adam Hendelson, in your opinion, from the toxicology report, there is nothing in the blood that would have killed him?

MR. AUCIELLO: Objection.

A. Correct.

Q. Thank you.

MR. AUCIELLO: One question.

RECROSS-EXAMINATION

BY MR. AUCIELLO:

Q. To make sure the record is clear, you had nothing to do with the actual toxicology work done on this case?

A. Correct.

Q. The earliest involvement you had was to receive the report and stamp it as filed on the file jacket and put IT in there and initial it on January 21, 2004, correct?

A. Correct, and also probably consulting with Dr. Perper on it.

Q. If Dr. Perper testified that he consulted with you in anticipation of his deposition in this case, would that be consistent with your recollection?

A. No.

Q. Okay.

A. Because generally I don't consult with him. I consult with him more when he is making a determination on cause.

Q. Do you remember your conversation with Dr. Perper concerning this case?

A. Vaguely. I do recall, now that I look at this report, that it is possible that I was in his office. It was not a recent consultation with him, but it's more consistent with me back in 2004 meeting with him.

Q. You have a vague recollection of it?

A. Yes, because I do recall writing this down and I do recall making these statements to him.

MR. AUCIELLO: Okay, no further questions.

MR. ANGWIN: Thank you very much.

(The witness was excused.)

(At 12:00 noon the deposition was concluded.)