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Deposition of Chief Medical Examiner for Broward County in Duragesic Lawsuit

Posted in Duragesic / Fentanyl

Here’s the deposition of Dr. Joshua Perper, the Chief Medical Examiner for Broward County, Florida.  Because he works for the county, he wasn’t a witness for either the plaintiff or the defendant.  But read his deposition and decide for yourself which side his testimony helped more.

JOSHUA A. PERPER, M.D. was called as a witness by the Defendants and, having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. AUCIELLO:

Q. Doctor, will you state your name for the record, please?

A. Joshua A. Perper, P-E-R-P-E-R.

Q. Sir, what is your present position?

A. I am chief medical examiner for Broward County.

Q. Doctor, I'll show you a document that we have just received that we will mark Defendant's Exhibit 1, which I believe is a curriculum vitae (handing).

(Thereupon, the said document was marked as Defendant's Exhibit No. 1 for identification.)

THE WITNESS: That's my curriculum vitae.

BY MR. AUCIELLO:

Q. Doctor, it's a very voluminous curriculum vitae. We won't go through it in detail, but just in a shorthand fashion, can you tell us about your education?

A. Okay. I have the foreign medical education. I have a medical degree from the Medical School of Hebrew University. I have a law degree from the law school of the same university. I have a master of science in forensic medicine from Johns Hopkins University.

More than 30 years I have been engaged in the practice of pathology and forensic pathology. From 1967 to 1972, I was an Associate Medical Examiner at the Office of the Chief Medical Examiner in Baltimore, Maryland. In 1972 to 1980, I was the Chief Forensic Pathologist for the Coroner of Allegheny County, Pittsburgh, Pennsylvania. From 1988, except for a few months, till 1994 I was the elected coroner for Allegheny County. From 1994 to the present, I am the Chief Medical Examiner for Broward County.

I am licensed to practice medicine in the State of Florida and I have active licenses in Pennsylvania and Washington, D.C.

I'm Board certified in anatomical and surgical and forensic pathology. I am a member of various medical associations. I used to be the chairman of the State Board of Medicine in Pennsylvania, both which regulates and analyzes physicians.

And in Pittsburgh, during my stay in Pittsburgh, I was clinical professor of pathology and a clinical professor of epidemiology and public health at the University of Pittsburgh.

And I was also for short time an adjunct professor of law at Duquesne University.

And in Florida I am a clinical professor of pathology and epidemiology at the University of Miami. I'm also clinical professor of pathology and epidemiology and public health at Nova University.

I wrote several books or chapters in books, approximately seven or eight, and I have more, about 120, publications in the field of pathology and forensic pathology.

Q. Doctor, I have your publications here in your CV. Would you characterize any of them as being primarily about issues in toxicology?

A. No, but there are toxicology-related subjects.

Q. Do you consider yourself an expert in toxicology, also?

A. No. However– No, I'm not a toxicologist. However, I know about the action of drugs involved and the interpretation of results in toxicology.

Q. Not just in this autopsy that we are going to talk about, how is toxicology done here at Broward County? Is it sent to an independent lab or is it done here?

A. Well, no. Well, both. In other words, it depends on the type of analysis. Most of the tests are done in our office. We have a Department of Toxicology, and Doctor Schueler is the chief toxicologist; therefore, if you have any questions which relate to the technical or to the scientific significance of the testing, he is certainly qualified to answer that.

Now, in certain cases, if there are drugs which we do not encounter them commonly or we don't have a method for them, because of that reason they might be sent to an outside lab.

MR. AUCIELLO: I'll show you right now a document we will mark as Exhibit 2 (handing).

(Thereupon, the said document was marked as Defendant's Exhibit No. 2 for identification.)

BY MR. AUCIELLO:

Q. I'll ask you if you can identify it (handing)

A. Yeah. This is my autopsy report in this case. And, in addition to that, I can see something else. You have some other number of records from the file–

Q. From your file; correct?

A. Yes.

–which include the investigation report by our medical examiner investigating, Linda Krivjanik; – she is still with us – a telephone note in relation to a telephone call which was received from the mother, Maxine Heller; a narrative information which comes from Transportation Service which is used in the evening hour or so, as people who take the information when somebody dies; a diagram of the body of the deceased;–

Q. This all relates to the autopsy of–

A. Just a moment. I'm not done.

–a list of the deceased's clothing and effects; the morgue intake receipt; Broward Removal Services form in which they indicate whom they transported to the office and the identification of the person. And then I believe there's a copy of prescription forms. And then there's a contact documentation from Adam Hendelson who want to speak as fast as possible with–

Q. Did you mean to say, Doctor, Lee Hendelson called instead of Adam Hendelson?

A. He called, yes. That's basically all.

This is yours; right (handing)?

Q. Yes. That will be the exhibit.

Doctor, did you do the autopsy on Adam Hendelson?

A. Yes.

Q. Is it your practice that you will do it personally or will you supervise someone else?

A. I do it personally.

Q. Did anyone assist you in the autopsy?

A. Yes.

Q. Who?

A. I don't remember. We never list the name of the autopsy technician because we have a number and they switch during the–they help more than one person.

Q. But there's no other pathologist; there would be a technician assisting you at the time?

A. Correct.

Q. Can you tell me what time the autopsy was done?

A. I can tell you that the autopsy started at 9:00 in the morning.

Q. Because I'll represent to you in some of the sheriff's department documentation they indicate that the autopsy was done at noon.

A. Well, it takes some time to do it, you know. You start the photography earlier. Both may be correct.

Q. So it could take up to three hours or longer?

A. Yes, three hours sometimes. Maybe, you know, I start at nine and then it takes more, you know.

Q. Do you have an independent recollection of the autopsy of Adam Hendelson?

A. No.

Q. Other than this report, have you reviewed anything in preparation for this deposition?

A. Just the file; that's all. I didn't review anything else.

Q. Did you speak to anyone in preparation for the deposition?

A. Yeah. I spoke with the toxicologist. We sat down and I spoke with the toxicologist.

Q. Who is the toxicologist?

A. Doctor Schueler, I just told you.

Q. You said that Doctor Schueler was the chief?

A. Yeah.

Q. It was, in fact, Doctor Schueler was the toxicologist?

A. Yeah. You asked me whom. Maybe somebody else signed on the report, but I spoke to Doctor Schueler, yes.

Q. Would you be able to tell me when the blood was drawn from the decedent?

A. At the time of the autopsy. The procedure is that the body is autopsied and then blood is taken immediately once the body is open. So within minutes or less from the opening of the body.

Q. If the autopsy began at nine, about what point–

A. No, no, no. When I say began, that does not mean that the cut was done at nine. What I'm explaining to you is there is a procedure. Immediately as the body is opened, within minutes, really, very few minutes, then blood is taken.

Q. Just so I'm not confused, though, we said it started at nine. What actually was done at nine?

A. I cannot tell you exactly. Usually photograph. It takes time to photograph. It takes time to prepare and so on. All this takes time.

Q. So you're not saying the first cut was made at nine?

A. No, I'm not saying that. And I don't recall when the first cut happened.

Q. Now, there's a name on the report named Michael Wagner as the toxicologist.

A. He is one of the senior toxicologists in Doctor Schueler's department.

Q. And are they physically located in this building we are in today?

A. No. They are just located in the adjacent building, which is connected to this one by corridor.

Q. Now, as a part of this autopsy, was any blood sample sent to any outside laboratory?

A. I don't think so, but let me see. No. Usually if there's blood sent to any laboratory, then it's attached–the results of the additional lab are attached. No, this were done in this laboratory, and that's what the signature indicate.

Q. Doctor, I notice on your copy of the toxicology report – not the one that's marked as an exhibit – there's some writing on the toxicology report.

A. Yeah. I told you that I discussed with Doctor Schueler and we decided those are the levels which– Okay. And I will indicate to you when the time comes when you ask me.

Q. As I understand the toxicology report, though, heart blood was tested. Correct?

A. Yes.

Q. And it was found positive for Citalopram?

A. Yes.

Q. Diazepam?

A. No, not exactly. It was a metabolite of Citalopram. Norcitalopram is a breakdown product of Citalopram.

Q. But Citalopram was positive and the Norcitalopram was positive?

A. Where is Norcitalopram?

Q. (Indicating.)

A. Correct.

Q. And the Diazepam was positive?

A. Correct.

Q. And the Diphenhydramine was positive?

A. Yes.

Q. The Nordiazepam was positive?

A. Yes.

Q. And these are metabolites?

A. Yes.

Q. And then Fentanyl was positive?

A. Correct. The Fentanyl was basically–there were two which were– The Citalopram was in the therapeutic level. The Diazepam was in the subtherapeutic level. The Diphenhydramine was in the subtherapeutic level. The Mirtazapine was elevated possibly low toxic level. And the Fentanyl was in the low toxic level. The level depends. It's usually between 3 and 28 nanogram, and the average is 8. And the concentration depends also on the way in which the drug is taken. In other words, if the drug is taken by application to the skin, it's at the lower level and if it's injected is at much higher level. If it's ingested it's also somewhere around in the 20's. So in this particular case the level is 9.42 nanogram per milliliter, so it's a low toxic level.

Q. Now, you said the average is 8?

A. Yes.

Q. Where does the average of 8 come from?

A. From those I gave you, the ranges between 3 and 28.

Q. Three and 28?

A. Right.

Q. But the low would be 3?

A. If it's more than 3, it's already in the toxic range, so that's the range.

Q. Now, do people become tolerant to opiates like Fentanyl?

A. Yes, they can.

Q. And would there be people that would be functioning with levels of Fentanyl in their blood that would otherwise be toxic to other people?

A. Yes.

Q. So you can have a range of 3 to 28 where one person might have a 16–

A. Well, the extent of toxicity varies, but it's clearly toxic. In other words, it's toxic. In other words, the person may be able to sustain better the toxic effect, but, you know, if it moves in a little effect or it's a question of performance, it's going to be a factor.

Q. Now, you also indicated that the Mirtazapine was in the low toxic range.

A. Correct, and we will go into that. But we found on the body a patch of Fentanyl, and in my body diagram there's a description of what was on the label. Here is the body diagram (indicating).

Q. Doctor, on that–

A. And it says here–

Q. You have written down what the patch says. Tell us what that is.

A. It says Duragesic patch 75 microgram per hour. Brackets, it says Fentanyl transderm system.

Q. And it was on the right arm? Is that what it says?

A. It's on the right arm also on the diagram. And I looked at the photograph with your associate and she could see it on the arm.

Q. Can you tell me on the arm where it was?

A. It was about mid arm, more or less.

Q. When you are saying mid arm, so the record is clear, between the shoulder and the elbow?

A. Maybe the best way is for you to–

You want to see it?

MR. AUCIELLO: Perhaps that's a good idea.

We can go off the record for this.

(Discussion off the record.)

BY MR. AUCIELLO:

Q. Doctor, would it be fair to describe the location of the patch as it's on the right arm? And when I say arm, I mean the portion of the arm between the shoulder and the elbow, midway between.

A. That's correct.

Q. As opposed to forearm?

A. Correct.

Q. Was there any other patch on the body?

A. No.

Q. Doctor, going back to the toxicology report, you took readings for metabolites of Citalopram and Diazepam.

A. Let me explain something. We did not take metabolites. We take blood and in the blood there are metabolites.

Q. Was there a Norfentanyl reading taken from the blood?

A. No, I don't see Norfentanyl. You will have to ask the toxicologist whether they– My understanding– They might check or might not; I'm not sure.

Q. You don't know why there's not a Norfentanyl reading?

A. No. There would be only Fentanyl. There were no metabolites probably because just there were no time for those to appear. But you have to ask them.

Q. Now, in the urine, what drugs were detected in the urine?

A. In the urine there was Salicylates. This is like aspirin. And then there was the Benzodiazepines. And then the other Diphenhydramine, which was in the blood, and then Mirtazapine, which was in the blood.

Q. The Diphenhydramine, is that the– I've seen, from the sheriff's investigation, that there was an over-the-counter medication called Sleep Aid.

A. Yes.

Q. Is that where the Diphenhydramine comes from?

A. I don't know. I'll have to look at the bottle. I don't know, on the record. But Diphenhydramine is a very common additive to a variety of drug: cough medication, sleeping medication, a variety of medication.

Q. And you can obtain Diphenhydramine without a prescription?

A. Yes.

Q. And, Doctor, I have to ask you questions about the toxicology report. Feel free to tell me what I should be asking the other–

A. If I don't know, I'll tell you. I'm very comfortable.

Q. There were other drugs that were listed as not detected. Does that mean they weren't there?

A. It means they were–the screen did not detect, yes.

Q. Is there a threshold where–

A. It also depends on the method of the drugs. Some drugs are more visible on other method than others.

Q. But on the heart blood that was tested, I mean, for instance, ethanol and–

A. If there's no ethanol, it means there's no ethanol, period, zero, because they would put even low level of ethanol would be there.

Let me see. The only thing which– Yeah, it says ethanol none detected; okay? If there are low levels, they will be listed.

Q. Obviously the blood was tested for these drugs that are identified on the report; correct?

A. Yes.

Q. What other drugs would the blood have been tested for?

A. They would be tested for opiates, it would be tested for basic neutral acid and basic drugs would be a screen for that.

Q. Is there documentation–

A. There's always documentation of the toxicology testing, which can be reviewed; in other words, graphs.

Q. Are they part of the record of your office? I didn't see them in here.

A. No. The toxicology report is– There's a separate toxicology file which you have access to if you want.

Q. Doctor, could you take us through the process of your autopsy? And feel free to look at your report and tell us what you found.

A. Okay. This was well developed, well nourished white male, who was 70 inches tall, weighed 170 pounds. The external examination revealed that there was overlying– I'm going to tell you only the positive findings.

Q. Fine.

A. Indicates that there was an overlying scar over a metal plate implant of the left hip. I felt this was from a trauma. Also a Fentanyl patch was present on the right arm and there were electrocardiogram lead pads on the chest and legs. There were no fresh needle marks or scar, indicating it had been a sedation, on the hands or arms or other location.

Internally, the body cavities were unremarkable, the neck was unremarkable, the heart was unremarkable, and the arteries of the heart were unremarkable. The lungs have evidence–they were heavy and had evidence of congestion and edema, which means excessive fluid in the air chambers. The liver was somewhat enlarged, 2,000. Usually normal is about 1,500, 1,700 grams.

Q. What does it signify?

A. It's congestion. I'll have to ask my secretary, because I always do microscopic examination, so it should be there.

And the only other things which I see–It says congestive hepatomegaly, means the liver is enlarged as a result of congestion. And also edema of brain, swelling of the brain, which is secondary to the drug. No other pathology; okay?

Q. And then at the time of the autopsy, the heart blood would have been drawn and given to the toxicologist and they would issue their report thereafter?

A. Yes.

Q. And at what point was their report issued?

A. What?

Q. At what point was the toxicology report issued?

A. On January 21st, 2004.

Q. Doctor, I noticed something. As you're looking at your report, the report marked Defendant's Exhibit 2, there are Roman numerals I through VIII with autopsy diagnoses and number V is blank.

A. It's probably a diagnosis which was not verified or was not present or a mistake; I don't remember.

Q. In my copy it has history–

A. I know. Because– We have a problem with HIPAA and we have to blank information of medical history which comes from record. I don't know how you got it, but you shouldn't have got it; okay?

Q. Okay. So in your report I see it appears that someone actually blanked it.

A. It's blank. It was probably sent to someone and it was made blank for that reason. Only the family has access to those.

Q. Now, Doctor, when you began this autopsy, would you have any clinical information available to you?

A. Usually we do it–try to do it, to have always something, information. But it depends on the case. In this particular case you don't have to have it necessarily, because you have the information of the investigator. So I don't remember. I might or might not.

Q. You were doing the autopsy beginning at 9:00 a.m. on the morning following his death when he was discovered at 3:00 a.m., so you didn't have medical records or documentation?

A. Probably not. But, you know, I may have it later on.

Q. But you had the sheriff's department narrative reports?

A. Not the sheriff's. Our own.

Q. Your own?

A. Yes.

Q. Your own investigation?

A. Right, which is partly based on the transportation service, plus additional investigation by our investigator.

Q. Now, would you personally have spoken to any of the police or EMS personnel on this case?

A. Not that I remember. I don't see a need in this particular case.

Q. Did you speak to any family members before doing the autopsy or–

A. No. That's not my procedure.

Q. Have you spoken to them since, to your knowledge?

A. In this, I remember there's a report here that I spoke to someone.

Q. There's a note in there that you had called–

A. There's a note that I spoke with someone. I don't remember now what. I just saw it.

Q. Lee Hendelson, I believe. Here it is, Doctor (indicating).

A. Yeah. So I explained to her– Yeah, I think there is a note here I spoke to someone. It says– This is 12/17/03. It says, “Doctor Joshua Perper talked (by telephone) with the family of Adam Hendelson to explain why the autopsy results are pending.”

And I think I saw another one in which I explained the swelling of the brain and stuff like that. Okay?

Q. Okay. So you spoke to them?

A. Yeah.

Q. Do you have an independent recollection of those conversations?

A. No. I speak with a lot of people.

Q. Have you spoken to their counsel?

A. I don't remember. Usually we write it in, but I don't recall.

Q. And, Doctor–

A. Usually if we speak to someone there's a note, but, you know, we are not perfect. Sometimes there may be no note.

Q. Doctor, what was your finding of the cause of death?

A. The cause of death was a combined drug overdose of Citalopram, Mirtazapine and Fentanyl.

Q. Is that still your conclusion?

A. Yes.

Q. Doctor, I'm going to ask you some questions about the drugs. If I'm asking you questions about toxicology or things you're not familiar with or outside of your area of expertise, feel free to tell me that I should ask them to someone else.

Doctor, would you agree that people or patients who have received long-term opiate treatment may have tolerances for those drugs?

A. Correct. But because your question–Just to make your question–put your question in the proper perspective, a diagnosis of combined drug overdose like in this case is made when there are drugs in amounts which are toxic or in combination can be toxic and there's no other overwhelming reason for their death. Sometimes there might be an additional diagnosis and then we are going to list their diagnosis either a primary diagnosis and the drugs are the secondary, or vice versa. If the level of drugs is very simple, very low, then we are stumped, we don't know what is going to happen.

Now, in this particular case this was a healthy person, except for the fracture of the hip for which he was on a number of pain medication, and there was no other explanation for the death. So, basically, if this person would not have those drugs on board, he would be walking today.

So the fact whether it is, you know–you know, people develop tolerance to opiate or develop tolerance to any one of the drugs in a combined drug overdose, it's irrelevant. It's also difficult to measure. There's no way to measure the respective contribution of each drug; they just work together. Obviously, if they are on the toxic level, as two of those were, then that's a reasonable conclusion within a reasonable degree of medical certainty they were effective in causing the death.

Q. Now, but as to, say, one's Fentanyl level, if one has a tolerance for Fentanyl, they could have a higher blood serum level of Fentanyl than someone like you or I who are not tolerant; is that correct?

A. That's true. Usually there is some tolerance to Fentanyl; right. But, again, tolerance is a function of many factors, which cannot be assessed at the time of the autopsy, which depends on the specific individual culpability to tolerance, his experience with the particular drug, and a variety of other factors.

Q. Are you familiar with any of the more current medical literature relating to Fentanyl tolerances?

A. I am familiar with Fentanyl in general. I don't know how recent, but I'm not– I think that if you have more specific question of this nature, Doctor Schueler, I'm sure, probably is more aware with the most recent literature than I am.

Q. Just general literature, if there were a study – I think this was done in Salt Lake City that measured the level of Fentanyl that was required to produce respiratory depression and found people had 17 nanograms per milliliter before they had that depression, would that be surprising to you?

A. It wouldn't be surprising. But there is reports on any kind of drug report different levels. I'm sure if I go in the literature from another situation the level is higher or the level is lower, because there is a great deal of variability.

Q. Do you know, if it's part of your history, how long Adam Hendelson had been using the drugs that you found in his system?

A. I don't think I have this information. Let me look. I don't know. The only thing which I know, he had a past medical history of a motor vehicle accident seven years ago which resulted in back and hip problems. So it might be as long as seven years or much earlier if he started recently to use Fentanyl.

Q. Can there be cross-tolerances between opiates; like if you develop a tolerance to morphine, you might also have a tolerance to Fentanyl?

A. I don't think that's cross-tolerance, but you can ask the toxicologist.

Q. If Adam Hendelson had been using Fentanyl patches of at least the 75 microgram per hour variety for many months before his death, would you expect him to have a tolerance?

A. Expect him to do what?

Q. If he had been using Fentanyl patches for months before his death, would you have expected him to develop a tolerance to Fentanyl?

A. To some extent. But, in my opinion, if the level is the toxic level as they are here, I think that there's no way that we can reasonably exclude the impact from Fentanyl in conjunction with other drugs.

Q. But in the abstract, a person who has–Not talking about Adam Hendelson, but in the abstract, a person who has a tolerance to Fentanyl could function with a level higher than ten?

A. Yes, except that people don't die in the abstract, they die in the concrete.

Q. And it was the absence of any other cause plus the combination of these drugs?

A. Correct. As I told you, my opinion is that there's a combination of three drugs. The toxic drugs, the drugs which are in toxic amounts, are more important than the one which are not, and the combination killed him.

Q. Doctor, are you familiar with a concept called post mortem redistribution when it comes to opioids?

A. Yes.

Q. Is that applicable to Fentanyl?

A. I don't know. I don't remember.

Q. Post mortem redistribution is more prevalent in heart blood than it is in peripheral blood; correct?

A. Correct.

Q. And the blood taken here was heart blood?

A. That's my understanding. Most likely.

Q. Would you agree that if post mortem redistribution applies to Fentanyl that it could then lead to the Fentanyl level being different when it was measured by toxicology than it was at the time of death?

A. I don't know the distribution of Fentanyl distributes itself again, but if it is, yes. Even if it would be, it's a drug which is very well known that it has impact on the respiratory center and that's one of its major impact area. But it would be less, yes.

Q. It would have been less at the time of death than it was when it was measured?

A. If it stays in redistribution, yes.

Q. And you are not familiar with the literature specifically about Fentanyl in post mortem redistribution?

A. I don't recall the redistribution, what the ratio of the redistribution. I don't know.

Q. Now, according to your investigator's report and the sheriff's indication, sheriff's information, it appears that Adam Hendelson was last seen alive between 4:30 and 5:00 p.m. the evening before your autopsy.

A. Yes.

Q. And your autopsy began at 9:00 a.m. and blood was drawn some time after 9:00 a.m., during the autopsy; correct?

A. Yes.

Q. So it would be accurate to say that there could have been as many as 15 hours between the death and the autopsy?

A. Possibly, yes.

Q. And rigor mortis had set in when he was found?

A. Yes.

Q. And that was indicated in some of your photographs, also.

A. Yes.

Q. You don't have an opinion as to how much the level of Fentanyl would have changed, been changed by post mortem redistribution?

A. No. You will have to ask the toxicologist.

Q. Now, when Mr. Hendelson was brought to your office, he was still wearing, as you showed me on the photograph, a Fentanyl patch; correct?

A. Yes.

Q. Now, would there be anything that would prevent his body from continuing to absorb Fentanyl–

A. Once he's dead there's no absorption of Fentanyl.

Q. Why do you say that?

A. Because the absorption requires circulation. In other words, the diffusion, nothing is going to carry the Fentanyl into the blood. The blood has to circulate for the substance to be absorbed in the blood.

Q. But would it penetrate the skin?

A. It might be, but it's not going to affect anything. It's not going to move from that area; there's no moving blood.

Q. So it would be your opinion that whatever Fentanyl would come in would stay in the spot where the–

A. Correct.

Q. Would it enter the blood that was stationary under the patch, the blood that's not circulating?

A. Not in my opinion.

Q. Why not?

A. Because you need– There are capillaries which collapse after death. That's why the person is pale when he dies. So I don't believe there would be any amount of blood of any significance which would permit this kind of exchange.

Q. Doctor, are you aware of any connection, in the literature, between suicides and the drug Celexa or Citalopram?

A. We saw suicide with a variety of drugs, including those, but I'm not aware of any connection.

Q. Are you aware of any connection between suicides in young patients and the drug Remeron or Mirtazapine?

A. Yes, we see suicide of people with that. What I'm saying is drugs which are affecting physiologically, if they are taking a large amount, they are going to cause death.

Q. I think my question is vague. I didn't mean– You have obviously seen suicides where these drugs have been used; correct?

A. Yes.

Q. Are you aware of people who use–the class of people using these drugs having a higher rate of suicide as opposed to people who aren't using these drugs?

A. In the moment when people are on antidepressant drugs, they are on the antidepressant drug because they are depressed, and people who are depressed have a higher rate of suicides, and the question is self answered.

Q. But you're not aware of a particular study that is out there relating to these drugs?

A. What I'm saying is, the rate of suicide in different groups varies according to so many factors. But that's true that people who are on antidepressant are depressed because that's the reason for they take the drugs. And because they are depressed, they have a higher rate of suicide, that's true.

Q. While we are on that topic, did you receive any history concerning Adam Hendelson's state of mind before he–

A. Yes. And I think that there is an information– If you look in the report which we have, I think it says that he was depressed, and that's a state of mind, for sure.

Q. I believe you– Go ahead, find what you were looking for.

A. It says– I think it says– Yes. It says here, “The decedent has remained disabled since the MVA,” which is the motor vehicle accident, “and recently has been depressed as he is unable to work.” So that's the extent I know. And it appeared, from what I read before, that he was not. In other words, apparently the fact that the disability of the accident prevented him from work, recently he was not able to work.

Q. And your report indicates, I believe you wrote, no known suicidal ideation.

A. Correct.

Q. But you did not have access to his medical records when you wrote that; correct?

A. I don't recall. As I said, we tried to get medical records. But I don't know. I just don't remember.

Q. And you wouldn't have been aware as to whether he was under the care of a psychiatrist at the time of his death?

A. No. But, you know, if he's depressed, then it's definitely possibility.

Q. You knew that he had been prescribed antidepressant drugs?

A. Yes.

Q. Now, had you been aware that he had been considered by a trained psychiatrist to have a suicidal ideation on at least three occasions in the last six months before his death, would that have been something you would have considered?

A. Yes. But then I would have to look at the levels of the drug. And usually people who commit suicide, the levels of the drugs are much higher. And that's one of the implicit determination of suicide. In other words, if you find a person who has very high levels of drugs, then it's a suicide, in the proper environment. If the drugs are in the low toxic level, it's unlikely to be suicide because of the very nature of the blood level.

Q. But it would have been a factor you would have considered had you had that information available?

A. In my determination, I consider everything.

Q. And if you had had information about this young man receiving news about his prognosis for his injured hip that was very disappointing just before this incident, would you consider that?

A. Yeah, but he would be again depressed. In other words, he's depressed. We know that. And if there's other news about his depression, he would be depressed. The fact is that the level of the drugs will not reach the level which you would consider them suicidal.

Q. Because you would expect someone to take a massive overdose if they were intending to–

A. That's right, because otherwise they know they are not going to die. Unless they do suicide conditional, which didn't happen here.

Q. Doctor, which of the drugs that were present in Adam Hendelson's system would cause CNS depression.

A. All the antidepressants can do that in proper amount.

Q. Would the Citalopram cause CNS depression?

A. Yes.

Q. And the Diazepam?

A. Yes.

Q. The Diphenhydramine?

A. Yes.

Q. The–

A. Each one of them, if it's in a toxic level. If it's in a low therapeutic level, it's unlikely. I always say when you get a multitude–several drugs like that, it's like stoning a person. Some of the stones are bigger, some of the stones are smaller, and if you hit the person, it's going to die. The same thing happens with the drugs.

Q. In the presence of certain drugs, even if therapeutic ranges in combination with the others, can be–

A. Sure, because it's an additional stone which adds to the big stones.

Q. And do certain drugs have, I believe they have been called, common metabolic pathways when they are in the body?

A. Correct. The liver is a common metabolic pathway for many drugs.

Q. And there are certain enzymes that metabolize certain drugs?

A. Right, and can be activated if they are used for a drug in the enzyme for some others.

Q. The Citalopram P450?

A. Right.

Q. For instance, Fentanyl would be, I believe, metabolized by the 3A enzyme?

A. I don't remember.

Q. Could it be a factor if multiple drugs were on board, as we say, with a particular patient and they were all being metabolized by the same enzyme?

A. Well, many times the enzyme would be activated, but the extent of activation varies.

Q. From patient to patient?

A. Correct.

Q. But this activation, if the enzyme was having to metabolize multiple drugs, would it affect the rate of metabolization?

A. What I'm saying is, you have to understand there are two things here. One is the rate of metabolism. The rate of metabolism means, if you have an activated enzyme, it's not going to be more effective in dissipating the level of a particular substance, so basically it doesn't matter for the purpose of determining the extent of intoxication. In other words, if, let's say, that you get an enzyme which is very effective in moving a particular drug, what it's going to mean is that when the person die, if enough time lapses, then you see lower level of those enzyme–of that particular chemical in the blood. But the level of the chemical in the blood, that's what determines the intoxication. The efficiency of the enzyme is not relevant, because it happens prior to that. Now, when he dies, that's the dose which killed him.

Q. But does the efficiency of the enzyme affect how long the drug remains in the system?

A. Yeah, but that's irrelevant for me.

Q. For you it's irrelevant?

A. For me it's totally irrelevant, because I don't care how long. I am looking what was the effective dose which kills him. If it's so effective than the zero concentration, it was effective in protecting him.

Q. Doctor, you received an inventory of the medications that were found by the sheriff's department in Adam's–

A. By whom?

Q. Did you receive an inventory of the medication that was found in Adam Hendelson's presence?

A. You have my entire file and you are free to look at it.

MR. AUCIELLO: Off the record.

(Discussion off the record.)

BY MR. AUCIELLO:

Q. Sir, within Exhibit 1 I find a document called Medication Intake Receipt (indicating).

A. Yes.

Q. What is this document? What does it signify?

A. I see that this is something which came from the pharmacy; okay? This is a Xerox page which on one face it has prescription, and there are five prescription, one is blank. And on the other side is medication intake receipt; however, it says–it looks like this was something which was done in our office. I thought initially that it's done at Walgreen or Eckerd, but it's done in our office because it has the medical examiner number. So that's a list which is prepared in our office.

Q. And Fentanyl is not on that list; correct?

A. Fentanyl is not on this list; correct.

Q. Doctor, you would have no way of knowing whether Adam Hendelson had used additional patches before– You saw the one 75 microgram patch when he was brought in. You have no way of knowing whether he utilized additional patches prior to death?

A. This information is not in the record. I have way of knowing. If I would like to know, I probably could.

Q. How would you do that?

A. Well, I would ask the family, you know, I would ask the investigator. But apparently we didn't do that.

Q. Doctor, again I'm skirting the edges of toxicology, but can you tell me how Mirtazapine contributes to Fentanyl's pharmacodynamic activity?

A. No, I cannot.

Q. Are you aware of any medical literature that suggests that patients that combine CNS depressants with Mirtazapine experience an exaggerated depression, CNS depression?

A. CNS depression? Not specifically. But, a general rule, I know that Mirtazapine has an effect on the central nervous system and on respiration, so it's, you know, a no-brainer that it could do that.

Q. It's a no-brainer that it would cause people who combine other CNS depressants to have more–

A. Right, to be more. That's obvious.

Q. And drugs like that could individually cause respiratory or nervous system toxicity?

A. Yes, if it's in the proper concentration.

Q. Would you say Adam Hendelson's death was a polydrug?

A. Yes.

Q. What does polydrug mean, just for the record?

A. Polydrugs means that more than a drug is responsible for either disease or death.

Q. Doctor, there is an error, I think, but I need you to go through it. I think there's a typographical error in your report. On page 577, the third paragraph, I suspect that's–

A. That's a mistake; right. We have very few hermaphrodites in our office.

Q. I would take it this paragraph is a mistake. Does that make you question anything else in your report?

A. No, absolutely not.

Q. Is this done– You dictate it as it happens?

A. No, because I don't dictate usually. Sometimes I have a form which is a fill-in form. Or the guy who did the typing forgot to eliminate it and I didn't observe that.

MR. AUCIELLO: Before we end this, I want to have a chance to talk to my co-counsel, but I have no questions right now, though.

MR. ANGWIN: Why don't we take a break and then I'll finish your exam and I'll be very quick.

(Thereupon, a brief recess was taken.)

MR. ANGWIN: Doctor Perper, thank you very much for giving us your time today. Just a couple of quick questions for you, sir.

CROSS-EXAMINATION

BY MR. ANGWIN:

In your role as Chief Medical Examiner for Broward County, are you often called to testify at court?

A. Yes.

Q. And within that role, both in civil cases like the one we are here about today and in criminal cases, are you often called upon to pronounce the cause of death in the case?

A. That's my function, yes.

Q. How many times would you say you've done that in your life, sir?

A. In my lifetime? Hundreds of times. Probably more. Thousands.

Q. And like in the case today, your job as the medical examiner was to examine Adam Hendelson and find out what caused his death?

A. Yes. No. I have two obligation. Well, I have more than that, but the two obligations which are central is to make a determination of the cause and manner of death, and that's what I did in this case.

Q. And you did that before there was a lawsuit filed?

A. Well, I don't know how–

Q. That was a poorly worded question.

A. The lawyers can do whatever they want, but my determination and my findings are made independently, obviously, of any kind of legal proceeding.

Q. Right. And you've never spoken to me before, have you, sir?

A. Not that I recall, no.

Q. And you're not being paid by anybody representing the family to give testimony today?

A. I am not paid by anyone except Broward County, which is my employer and whom you have to pay directly for this deposition. In other words, the fees for this deposition go to Broward County general fund.

Q. So, as far as medical experts go, you're not on anybody's side in this case. You're not on the plaintiff's side, you're not on the defense side; is that correct?

A. Yes. I am straight in the middle.

Q. And you're giving truthful and accurate testimony as the Chief Medical Examiner for Broward County?

A. Correct.

Q. In your role as Chief Medical Examiner, do you usually rely upon reports such as that from Doctor Schueler dealing with toxicological issues?

A. Absolutely.

Q. And do you have confidence that the reports he gives you are accurate and correct?

A. Yes, I have full confidence in Doctor Schueler and in the Department of Toxicology.

Q. And I would assume that the toxicological area of the lab that does the testing here, that's been certified somehow?

A. Yes.

Q. And that's qualified to give toxicological reports?

A. Correct. And it has quality control procedures.

Q. And that would include reports on drugs such as Fentanyl?

A. Yes.

Q. And you stated earlier you knew what Fentanyl was, but can you briefly tell me what your understanding of Fentanyl is as a drug?

A. Fentanyl is a medication which is used as basically control of pain. And the way in which it's done primarily is that apparently it neutralizes the perception of pain so people don't remember the painful experience. Also, it's a drug which has a high risk of respiratory impairment and, therefore, when it's done in hospitals or in medical environment, it's always required to have appropriate resuscitation methods. Obviously, it's done in clinical set-up, for people who have significant pain, as patches and, unfortunately, sometimes people die of that, especially when they take other drugs when they take patches.

Q. Now, you talk about patches. In your role as Chief Medical Examiner, have you seen other decedents who have been wearing Fentanyl patches?

A. Yes.

Q. And have those been Duragesic patches?

A. Yes.

Q. And you're aware that Duragesic is the prescription brand for a Fentanyl patch?

A. Yes.

Q. How many deaths have you seen at any point in your medical examiner career where persons died who were wearing a Fentanyl patch?

MR. AUCIELLO: Objection; form.

THE WITNESS: I don't have the slightest idea. But I saw them. It's not something which is extremely rare. It's not extremely common, but it's there.

BY MR. ANGWIN:

Q. Have you pronounced other causes of death, as a medical examiner, where Fentanyl was shown as one of the drugs involved in a polydrug death?

A. Yes.

Q. Have you pronounced causes of deaths where Fentanyl was found to be the only drug?

A. Yes.

Q. Do you know how many of those you've pronounced?

A. I don't have the slightest idea. As I said, it's not very rare, but it's not common, either.

Q. And I'm trying to quantify that some, because I'm–

A. I cannot quantify, because there's no way. I would have to invent numbers, and I don't do that.

Q. Are there records available in the Broward County office that would indicate the cause of death by drug?

A. We have computerized records. And I don't know if you can find them by specific drug. You can find them by the determination of the cause of death, which says multiple toxicity or multiple drug overdose, but then you will have to go to the actual record to see what is the particular drug involved.

Q. I think you testified earlier that in this case you took a post mortem heart blood sample for testing.

A. Yes. In two or three, we took– I remember that we took– Now I think we moved more toward the peripheral drug in order to prevent the argument that it's a distribution. We still do sometimes. But I think it was heart blood, yes.

Q. I'm not trying to change your testimony, but I'm just trying to figure out, is there something in the records to indicate it was heart blood or is that just your recollection?

A. I think that for that you have to cross-examine or examine the toxicologist, and he, in his record, will be able perhaps to have this. I don't remember. Sometimes he put it and, you know, I don't know if it's in every case. Now I have a form. At that time we didn't.

Q. Well, it says blood parenthesis heart on the toxicological screen. Does that indicate to you it was heart blood or does that indicate anything to you?

A. If it says heart blood, it's heart blood.

Q. I think that's part of the document that's already marked.

A. It says heart blood.

Q. Would that be a notation that you made or would that be something that someone else wrote in there, the heart blood notation?

A. I do not recall. I think at that time we took his heart blood and then we moved toward peripheral blood. If it says heart blood, it's heart blood.

Q. And even though you took heart blood, are you confident that you took a sufficient sample to do an adequate post mortem test?

A. Yes.

Q. I'd like you to look, if you can, at the toxicological screen from Adam Hendelson's autopsy.

A. Here, sir (handing).

Q. I'm looking at it, too. I'll let you look at that (handing). I have copy as well, sir. Thank you.

You've been asked some questions and had just mentioned the term “post mortem redistribution.”

A. Yeah.

Q. And I think you've been examined about that a little bit. I would assume that you had been asked about that term before the deposition today.

A. Correct.

Q. Am I correct that post mortem redistribution is a phenomenon where the post mortem drug level might be affected by certain factors?

A. Well, usually post mortem redistribution means that the blood concentration is elevated because of–

Can we stop for five minutes?

MR. ANGWIN: Sure.

(Thereupon, a brief recess was taken.)

BY MR. ANGWIN:

Q. I think we were looking at the toxicological analysis. I think you have it there in front of you.

A. I'm sorry?

Q. The toxicological report, the toxicology report.

A. Yes.

MR. ANGWIN: Which I don't know if we've marked yet the one that has his handwritten notes on it.

MR. AUCIELLO: No, but it's right there.

MR. ANGWIN: Let's mark that as Plaintiff's 1.

(Thereupon, the said document was marked as Plaintiff's Exhibit No. 1 for identification.)

BY MR. ANGWIN:

Q. Doctor Perper, just so it's at the same place in the record, the notes you made on this report, when were those notes made?

A. Today. I sat down today with the toxicologist and we discussed the case.

Q. When you say today, that was before your deposition?

A. Correct.

Q. And are the handwritten notes on here, are those in your handwriting?

A. No. Those are Doctor Schueler's handwriting.

Q. He's the chief toxicologist?

A. Yes, correct.

Q. When you went through and talked about therapeutic and subtherapeutic ranges, am I correct that therapeutic would be within the range that one would expect to be in the blood if a person were taking the medication as prescribed?

A. Correct.

Q. And subtherapeutic would be below that range?

A. Correct.

Q. And elevated would be above that range?

A. Correct.

Q. And you used the words “low toxic” and “possibly low toxic.” Can you first tell me what the phrase “possibly low toxic” means?

A. In other words, possibly low toxic means that it's a high level–really, the lowest toxic.

Q. And the Fentanyl you have marked as low toxic with a parenthetical 3-28 and then 8/3.

A. Right.

Q. Those look like the numbers.

A. No. It's point eight. It looks like a three, but it's an eight.

MS. VARGAS: 8.8.

MR. ANGWIN: Is that an eight?

THE WITNESS: Yes, it's an eight.

BY MR. ANGWIN:

Q. Do you know what the source was for those numbers?

A. If you look here, you will see it's an eight very clear (indicating).

Q. It's 8.8?

A. No. On the other side in handwriting it says.

Q. So it says 3-28. That's the range.

A. The first one is the range and the other one is the average, the medium.

Q. And the average is 8.8?

A. Yes.

Q. Do you know where you got those numbers or where the numbers–

A. Those are the numbers which Doctor Schueler took from the literature.

Q. Is that from Baselt?

A. I do not– You have to ask him.

Q. Are you comfortable that those numbers are proper numbers to use when reviewing post mortem Fentanyl samples?

A. Yes, they are. Yes. But, as I said, eventually if you look in the literature you may find other numbers. People vary their numbers.

Q. Is Fentanyl a very potent opioid?

A. I'm sorry?

Q. Is Fentanyl a very potent opioid?

A. Yes, it's a very powerful drug. Yes, as I said before.

Q. Is it more powerful than morphine? When I say more powerful, is it more powerful by–

A. They work in different way. You cannot–Like one is apple and one is, you know, pears. They are apples and oranges. They are different because they act in a different manner, so you cannot compare them in terms of their mechanism of action. The opiate acts on other receptors than Fentanyl. As I said, Fentanyl– Opiate actually decreases the pain. Morphine decreases the pain. The Fentanyl is basically a–it's creating an amnesia-like condition so people don't remember the pain.

Q. Would I be correct that Fentanyl by dose is given in smaller doses than morphine to achieve a therapeutic level?

A. Yes, that's correct.

Q. And Fentanyl is measured in the dose–the dosages are usually in much smaller increments because Fentanyl is a very powerful drug?

A. As I said, Fentanyl is a powerful drug. But its action are different from the action of morphine. You know, you cannot compare them.

Q. When we talked about post mortem redistribution, we talked about Fentanyl. Now, are any of the other drugs that are shown on the toxicology report potentially subject to post mortem redistribution?

A. Yes.

Q. Would that include Citalopram and Mirtazapine?

A. Yes.

Q. Am I correct, sir, that if one drug in a toxicology report is affected by post mortem redistribution, would you expect all the drugs in that report to be affected if they were subject to post mortem redistribution?

A. That's an interesting question, how the redistribution of a drug affects another, and I'm not sure that– I don't know. In other words, I don't know if you have several drugs which are involved in the redistribution whether they independently act in the process or one is influencing the other. I don't know. You will have to ask the toxicologist.

Q. Let's assume that the defense is correct, that the Fentanyl level in this sample was elevated due to post mortem redistribution. I want you to assume that for me. Would you then, as the Chief Medical Examiner for Broward County, expect that the Mirtazapine level and the Citalopram level would also be elevated due to post mortem redistribution?

A. I do not believe that the extent of redistribution is the same for different drugs and I do not know what is their relative, you know, in percentages. I cannot answer the question. You have to ask the toxicologist.

Q. That's for the toxicologist to answer?

A. Yeah. Hopefully he will know. I don't know.

Q. When you examined Mr. Hendelson's body, Adam's body, you found one Fentanyl patch on him, one Duragesic patch?

A. I found just one, yes.

Q. Did that patch appear to you to have been applied in the proper manner?

A. Yes.

Q. And what happened to that patch once your autopsy was done?

A. Well, there's a possibility that we kept it or we discarded it. There was never– We were never notified to keep it, so there's a good possibility that it was discarded. However, because there is a possibility that it was not discarded, I can check with my staff to see if it's still available. I can do that. But you have to remember something else, that according to the Florida law we don't have to keep evidence more than one year. We usually keep two years and sometimes even three, but if somebody notifies us, then we will keep it indefinitely until the legal issue is resolved. So I don't know. If we have it, we will be glad to make it available to the parties.

Q. Who would be the person we would ask that would know whether you have the patch?

A. I'll go to my secretary and I'll ask my secretary to ask the chief autopsy technician and they will look if we have such Fentanyl patch.

Q. Can you do that at the end of the deposition? Would you do that for us?

A. Sure. I don't know if they will be able to answer, but let me do that.

Q. All right, we'll do it now.

A. Sure.

(Thereupon, a brief recess was taken.)

BY MR. ANGWIN:

Q. While we are waiting to see if the patch is still around, Doctor, I wanted to go through a few more of the areas that you were asked about earlier.

Although several drugs were detected, am I correct the only significant, as far as relating to death, cause of death drugs you noted were the Citalopram, the Mirtazapine and the Fentanyl?

A. Those are the three major one, yes.

Q. And of those, the Citalopram was within therapeutic levels; is that right?

A. Correct.

Q. That means that's the level you would expect to have in a person's bloodstream if they were taking the medication?

A. Correct. But, as I said before, I gave you the example with the little stone, everybody contributes proportionately. When you have a number of drugs, obviously the one which are in higher concentration make a bigger contribution than the one in a lesser concentration, and there's no way for us to separate it.

Q. That was going to be my question. Of those three drugs, is there– Let me ask you this as a preface: Am I correct the proper protocol or at least an accepted protocol for medical examiners in listing cause of death when there are drugs that are involved is to list every drug that might have played a role?

A. When you make a determination and if you found a number of drugs, unless they are in extremely low amounts, minimal, we will list them as contributory in the context of a combined drug intoxication.

Q. And your job is not to pull out which of those you think is the most significant in those cases?

A. I cannot do it. You know, unless when it's in such– If one of them would have been in extremely lethal concentration, then, yes, I would say that that's one of them is in the lethal concentration.

Q. Let me ask you that. The Citalopram, that's not in a lethal concentration; is it?

A. That's correct. It's therapeutic; that's right.

Q. Therapeutic means people walking around taking Citalopram will have it in their blood?

A. Correct.

Q. The Mirtazapine, it says elevated possibly low toxic?

A. Which one?

Q. Mirtazapine.

A. Yes.

Q. The note I have here says elevated possibly low toxic.

A. Right.

Q. So is that– I'm trying to understand how that relates to therapeutic. Does elevated mean high therapeutic, is it supra therapeutic?

A. It mean that it's so elevated that it's probably low toxic already. In other words, it's a range. And you have one on the border which goes out most high therapeutic. It can be very low toxic and it's difficult to make the determination.

Q. Am I correct that the only drug on the toxicology screen that you know is definitively within the toxic range is the Fentanyl?

A. In the low toxic range; correct.

Q. But I'm correct, that's the only drug on there that's within the toxic range?

A. In the low toxic range. The other one is borderline. That's why it says “possibly.”

Q. I'm not trying to influence your answer; I just want to make sure I got my question right. Let me ask it this way, so you can answer: Of all the drugs listed on the toxicology report, which of those is in the range which you think is definitely toxic?

A. Fentanyl is definitely in the low toxic range. The range starts between 3 and 28; okay?

Q. Okay.

A. And anything above 3 is toxic. And the average is in the 8.–

Q. I see it says 8.8.

A. Right, 8.8. In this case this was 9.42. That's why we said it's in the low toxic range, because it's definitely above the average.

Q. Do you know what the therapeutic range for Fentanyl is for the dosage strength of patch Mr. Hendelson was wearing?

A. I don't remember. This, again, ask the toxicologist, because there's a table. I don't remember the table.

Q. In fact, the toxicologist could probably answer all these questions better–

A. Better than me, yes.

Q. Not that you are not qualified as a medical doctor, but that's more his expertise?

A. Correct. It's a question not of the impact of drugs; it's a question of the kinetics of the drugs. And he's more familiar with that, sure.

Q. You were also asked about Mr. Hendelson's physical condition. Am I correct that other than the fact he was dead he appeared to be a healthy young male?

A. Correct, except with the exception of the trauma.

Q. The trauma being the past trauma to his hip?

A. Correct.

Q. But that didn't have anything to do with his death, in your opinion?

A. That's correct. Zero. It didn't have anything to do with his death.

Q. And you looked at his heart and his brain and everything else and you found no other cause of death?

A. Correct.

Q. I think you said earlier but for the drugs you think that he would be walking around with us today.

A. That's exactly correct.

Q. And you were also asked a question of suicide. You did not rule this a suicide; am I correct?

A. No.

Q. And even if you had known that there was an anecdotal evidence that Mr. Hendelson had talked about suicide at some point in the past, knowing that today, would that change your opinion?

A. No. But it only would make me consider this, which would mean I would ask if there was any suicide note. But sometimes suicide note, people carry them for weeks and, you know, they don't act on them. I would definitely consider that and I would consider additional investigation to satisfy myself.

Q. If the evidence of suicidal ideation had been that he had expressed maybe twice thoughts about it at some point in time, months before he died, would those have been significant to you?

MR. AUCIELLO: Objection; form.

THE WITNESS: Everything would be significant for consideration, but this in the absence of high level of the drug would not prompt me to call it a suicide.

BY MR. ANGWIN:

Q. Sitting here today, is it still your opinion this was not a suicide?

A. That's correct.

Q. And we've been through several questions, but am I correct that your opinions before we started this deposition are the same as your opinions are now?

A. I didn't change my opinion.

MR. ANGWIN: Thank you. Those are all the questions I have.

MR. AUCIELLO: I have a couple of follow-ups.

REDIRECT EXAMINATION

BY MR. AUCIELLO:

Q. Doctor, is it true that anything over .1 milligrams is listed as toxic for Mirtazapine?

A. If you show me– I want to see. I don't remember.

Q. I'm just looking at something I happen to have. It's a medical examiner's listing from the North Carolina Office of the Chief Medical Examiner.

A. I don't remember. I never remember the table in the tabulation. I have to look at the tabulation which you use and answer your question.

Q. Doctor, earlier you said you believed you had done a microscopic exam, but there doesn't seem to be a–

A. Yeah. I'm going to ask my secretary, because I always do that, and I just have to check.

Q. And there would be tissue samples retained, also?

A. There might be. Again, we don't retain–Usually the retention period is one year and now we are four years. Usually we retain up to two, sometimes three, so this would be beyond the period of retention. But we may have them. If we have them–

MS. VARGAS: Will you notify my office, please?

THE WITNESS: I'm sorry?

MS. VARGAS: Will you notify my office?

THE WITNESS: Absolutely. Sure. Just remind me.

BY MR. AUCIELLO:

Q. There was some questioning about heart blood, but it was your testimony that at this time when this autopsy was done heart blood was being drawn?

A. That's my understanding.

Q. And the indication on the toxicologist screen, it was heart blood that was drawn?

A. That's correct.

Q. When your office went to the scene of the death, the sheriff's deputies had reported to us that the investigator from the medical examiner's office took possession of all the prescription drugs.

A. Yeah.

Q. Would those have been retained?

A. Yes. But, again, there's a period of retention. They are evidence and periodically we will destroy them. If you will write on a piece of paper what you want, we will check whether we have those things and we will certainly notify both of you, both sides, if we have it.

Q. When you examined the body, you did make a notation of the patch being present on the arm, as we discussed earlier.

A. Correct.

Q. Had there been anything unusual concerning the appearance of the patch, would that have been something you would have noted?

A. It depends how unusual. If it would be a minor defect on the inside of the patch, I wouldn't be able to see.

Q. Did you notice anything unusual or defective about the patch?

A. I did not see anything on the outside of the patch.

Q. Would you have removed the patch from the skin during the autopsy?

A. Yes. Yes, it is removed, for sure.

Q. And during the course of that you didn't notice anything significant enough to write down?

A. No. If it would have been a significant tear, I would see it; if it would be a minor tear, I may miss it.

Q. You were asked whether you had seen people who died who were wearing Duragesic patches. If you assume the patches–one intended recipient of a patch are end-stage cancer patients, it wouldn't be unusual for people to die with Duragesic patches on; would it?

A. No. That's correct. I'm not speaking of people who have cancer; I'm speaking about people who have Fentanyl as a cause of death. And in such situation in which they have Fentanyl patches and they have cancer, obviously we would look at the level of Fentanyl in the blood and try to make a determination whether it's a toxic one or not.

Q. And you earlier mentioned ingestion of patches. That would be through abuse, when people ingest Duragesic patches?

A. Well, they either put a lot of patches on their body, in which cases people put several patches and die. We saw cases in which people extract the Fentanyl from patches and they take them. Maybe we saw a few that inject, too.

Q. Doctor, the manila envelope marked “contaminated material” in your file, that is fingerprints?

A. Correct.

MR. AUCIELLO: I have no further questions.

MR. ANGWIN: Thank you, Doctor.

THE WITNESS: Thank you. And I waive signature.

(Thereupon, the deposition was concluded. Reading, subscribing and notice of filing were waived.)