12.Defense Medical-Expert Admissibility Hearing — Decision Reserved
135 linesBAILIFF: Court is back in session. You may be seated.
COURT CLERK: Your Honor, for the purpose of the record, we return back to the matter of Commonwealth versus Lindsay Clancy. All parties are present excluding the jury.
THE COURT: All right. Well, what I wanna do was hear the arguments in regards to the defendant's motion for permission to call witnesses. I know that this was filed this morning, but it's kind of hand in glove with issues that were raised a couple of weeks ago. Same, at least mentioned the same witnesses. So I'm gonna hear first from the Com... first from the defendant, then I'll hear from the Commonwealth. I will probably take it under advisement and review some of the other documents. But I wanna make this decision as soon as I can, so everybody kinda can plan on how they go based on the decision. So Mr. Reddington, let me hear you first on this.
MR. REDDINGTON: Thank you. Your Honor, obviously I don't have to belabor the obvious. This is a murder trial. Very serious business. And we've all been working very hard on the discovery, which as you can tell is voluminous. Hundreds and hundreds and hundreds of pages of state police interviews. And I mentioned, you know, about with the government, they have cops. They have people going out and interviewing. They have videos. They have chemists. They have detectives. They have local cops. They want a cup of coffee, they can send five cops down the street to get one. I'm it, except for my son, Patrick, who helps me out getting coffee, all right? And the reason I sound frustrated is that they're objecting two weeks ago because they need time to review, to cross-examine doctors on very basic items of evidence that are there. Items of evidence. Not one of those witnesses is adding or bringing anything new to the discovery, if you will. And not by way of excuse, but, you know, I am a sole practitioner. In the past, May, June, July, in the past three months I've had a murder, a rape, and two back-to-back federal trials that ended one week before we empaneled on this case.
MR. REDDINGTON: I have worked really hard to pull this case together with expert witnesses, civilian witnesses, private investigators been investigating. I provide everything to them as soon as I get it, and they have been doing the same with me. I haven't objected to one thing that they have off— They put an AutoCAD computer animated display disk on my desk last week. I didn't complain about it, run to you and try to exclude it. I said, "Fine, no problem." Put it in my pile and move on. That's it. So to suggest that they need time to be able to cross-examine both... I've had trials with both of these prosecutors. They're both experienced. They're very, very familiar with the trial of major criminal cases. I feel that they're more than capable of being able to cross-examine, for example, number one, Dr. Vulfovich, who is a board-certified emergency medicine physician.
His report indicates that he has taken a look at South Shore Hospital, he's taken a look at the Brigham and Women's Hospital, he's taken a look at the photographs. That's their evidence. That's all he looked at. And all he's doing is basically what all of their South Shore doctors came in and testified to as to the nature of the injuries, in his opinion, the type of injury that she suffered. Talking about the injuries to the right and left wrist, as well as the neck. In his opinion, dealing with suicide attempts, that it's a legitimate suicide attempt. There's no secrets, there's nothing new that they have to prepare to cross-examine him on. Dr. Laposata is a doctor that is well known to most of us, and I've been using Dr. Laposata's fine services for the past decade or longer. I know that both of these attorneys are familiar with her. She's not bringing anything new to the table.
She's bringing her opinion based upon their evidence as to the medical records, X-rays, all of the rest of the indicia of the injury that she suffered. Now they're talking about Lindsay going out, hanging off of a window, and then doing, like I said, the Spiderman slide down the side of the house, apparently. Absolutely ridiculous. She dove out that window, she hit her head, and she suffered what Dr. Laposata refers to as a Jefferson fracture of the spine that is very, very, very typical for this type of an injury. When somebody dives into the shallow end of a pool, they get that injury, unfortunately. When somebody, you know, kids are on a boat and they're drunk and they du— one of 'em jumps off a mast into the shallow end of the water off of Cape Cod, they get that type of injury. Superman, when he gets thrown off the horse, six feet high, same injury. That's all.
MR. REDDINGTON: She's not bringing any esoteric theory to this case that they need time to prepare. Interestingly enough, the Brigham and Women's Hospital records do make reference to the Jefferson fracture right from jump. She also assists me, as she always does, on autopsy photographs, any indicia of injuries, and it's her opinion that if they try to say that there are bruises to these little babies that were inflicted by her, they're absolutely wrong, and Dr. Laposata would indicate that these are consistent with either EMT—God bless those, those first responders, but they were in a panic and they're trying to take care of these kids and pick them up and run them up to their trucks and vehicles. So, and other, obviously the intra-ossous injection into the legs, the shins, the thighs, all of these bruises are from medical intervention. Not Lindsay Clancy. That's what she would testify to. That's it. They don't need time to prepare to cross-examine for that. Finally, I have Dr. Condie. Dr.
Condie signed even better than a report. He signed an affidavit. And again, it's based upon medical records that we all have. Way back when this case first started, the government presented the case to the grand jury. First thing I said to Lindsay was, "Sign a release. Let the government give all the medical records. We'll all have access to 'em." This case is obviously gonna be predicated upon the medical records, psychiatric records. We signed every release. They got every document and had them into the grand jury. I got copies, they have copies. Condie would testify to the horrific, in his opinion, failure to comply with the standard of care that would govern psychiatrists, psychologists, Dr. Tufts, who's gonna be testifying tomorrow, Nurse Practitioner Jollotta, the other individual from the McLean Hospital, all records that they've had for years. So they don't need time to prepare for cross-examination.
So weeks ago, counsel, after I gave them copies of all of these reports and affidavit—strike that, I'm sorry—the reports I just got and I just sent them, the affidavit from Condie they already have, I disclosed to them what my opinion would be of the opinions from these, these doctors that would be testifying then, and the report carries that out. I suggest to the court that to strip Lindsay's ability to present evidence in support of her defense—number one, it would not be in the interest of justice. How... I'd like to hear a DA stand up and say, "In the interest of justice in this case, because weeks ago we got this information and we're not prepared to testify, to cross-examine the testifying witnesses," I think even Your Honor would agree is a disingenuous argument.
MR. REDDINGTON: She came in and said to you, "Ugh, Rule 14 matters, and it applies to the government just as it applies to the defense, and therefore, you should exclude these witnesses." Well, if I messed up, and it's my trial schedule that caused me to not be able to have written reports of the stuff that they've had for years to prepare to cross-examine these witnesses, then it's my fault, and it deprives her of effective assistance of counsel because that would then deprive her of her defense. This is a pathologist, an emergency room doctor, and a doctor who would testify to the standards that would apply to these doctors that they're gonna call as their witnesses, which is another interesting fillip, if you will, where they're calling Tufts, Jollotta, the other individuals from McLean, all treating physicians of her that are all lined up to come in and testify against her on this case. Fine, bring it, but at least give me the ammunition to counter it.
THE COURT: Let me ask you this. Let me kinda go backwards. In regards to Dr. Condie, the affidavit really speaks more towards the standard of care.
MR. REDDINGTON: That's right. He's not, he's not giving an opinion of criminal responsibility.
THE COURT: Right, but I'm struggling to see how that comes in. Now, maybe—
MR. REDDINGTON: Well, he's the—
THE COURT: Right.
MR. REDDINGTON: ... doctor that I'm using for—
THE COURT: Right.
MR. REDDINGTON: ... toxicology.
THE COURT: That's what I figured. But though, the reason I'm asking that is, I'm not sure in this case is the standard of care necessarily as relevant as to in regards as opposed to causation. Do you know what I mean? The—
MR. REDDINGTON: Well, yeah. I think the standard of care does speak to causation.
THE COURT: Why?
MR. REDDINGTON: He doesn't have to use it as standard of care. He can use it as his opinion as to the first doctor that he spoke to, she spoke to, Dr. Tufts, when she presents with a bipolar 1 presentation, and then Tufts prescribes an SSRI to her, which flies in the face of any rational psychiatrist and what they would prescribe and do. He's more than qualified to testify.
THE COURT: No, that's a different question, and that may be more admissible than someone saying, "Oh, I've found what the standard of care, and I find that this violates it." If we have got an expert who says, "Listen, I am qualified. I looked at these records. I disagree with that treatment," I'd be more inclined to allow that than than to get into the standard of care, which is obviously consistent more with the civil world.
MR. REDDINGTON: I understand that.
MR. REDDINGTON: So with that, I can reach out to Dr. Condie and have him delete reference to standard of care in his report and address the actual treatment, as to an opinion as to its appropriateness. But again, on the issue that they're raising that they need time to prepare to cross-examine, I don't think that lies when, even if he revises his report by removing standard of care.
THE COURT: Well, let me ask you this, 'cause I haven't had an opportunity. This is probably what I'm gonna have to look at tonight. Is Dr. Condie adding anything to the expert disclosures that have already been made? 'Cause I know there's disclosures—
MR. REDDINGTON: I'm well aware of. He's taking the medical records, Tufts, Jollotta, McLean Hospital, and just commenting on the care and the treatment that was presented to her as a patient looking for—
THE COURT: Right.
MR. REDDINGTON: ... for help. That's all he's doing. He's not adding anything. He's talking about the prescriptions that were provided to her, the SSRIs, the antipsychotics, the benzodiazepines, all of that. That's what his opinion is predicated upon, which is all of the prescriptions that the government has already introduced into evidence and is well aware of.
THE COURT: Right. Right, I understand, but I know that there was, the parties have already exchanged reports.
THE COURT: Well, and, you know, months ago, and I know that everybody did that. What I... And I haven't had a chance to review specifically the defendant's reports. And I don't... Is there an expert who's going to address these kinda issues already?
THE COURT: Oh.
MR. REDDINGTON: Dr. Condie was my toxicologist and my treating phys— not treating, but physician that would give an opinion as to the appropriateness of the treatment that she received, especially as it relates to the prescriptions. I mean, Dr. Laposata is a pathologist. She has nothing to do with it. Dr. Zeizel is a psychologist. He has nothing to do with it. Dr. Resnick is a psychiatrist specializing in infanticide. He's not addressing that issue, and nor is Dr. Spinelli, who is a postpartum, you know, postpartum depression, postpartum psychosis expert. So Dr. Condie is my expert for toxicology and the care, level of care that she received—
THE COURT: All right.
MR. REDDINGTON: ... which guts the defense if their—
THE COURT: Right.
MR. REDDINGTON: ... argument that they need time to cross-examine or prepare—
THE COURT: Right.
MR. REDDINGTON: ... results in an exclusion.
THE COURT: Okay. Commonwealth.
MS. SPRAGUE: Thank you, Your Honor. With regard to Dr. Condie, one of my points is going to be that his affidavit addresses the standard of care, which is more of the civil issue, but you've already addressed that with defense counsel's pivot that he would then instead—testify about the treatment of the defendant in toxicology. Looking at the affidavit in which he outlines his qualifications, he's not a toxicologist. He's a physician licensed here in Massachusetts. He's done a residency in general psychiatry, child and adolescent psychiatry, and forensic psychiatry, but he's not a toxicologist. And also, it's not just us having all the same records that makes for cross-examination to be fundamentally fair. There's more to cross-examination than just having the underlying data. It's also knowing more about the expert, being able to look into their publications and their prior testimony, and being able to prepare to rebut anything that they might testify to.
And where we have this late disclosure, which was one week prior to trial starting, that's fundamentally unfair to the Commonwealth. And I think what Dr. Condie would be testifying to, if it's just limited to her treatment and what was prescribed to her, that's covered by the other three experts that defense already has. They all talk about her treatment, the prescription she was on, and the effects those had on her. So I think that would be redundant, and it would be unfair to the Commonwealth to add this fourth expert to talk about the same things that the other three experts are going to talk about when we haven't had a chance to prepare for this particular expert. For Dr. Laposata, what we have is a two-and-a-half page letter to Attorney Reddington outlining her thoughts, but it doesn't say what her opinions are based on. It doesn't say which materials she's reviewed and what she's relying on, so I would suggest that it's an insufficient report. And again, with the delayed disclosure, for example, she talks about Jefferson—Jefferson fracture causing the injuries. Well, if we had this information previously and knew this is what they were going to argue, we could have obtained our own expert to talk about the mechanism of injury and Jefferson, Jefferson fractures and all of those things. But we weren't told until a week before trial that she would even potentially be a witness, and then we get this report on July 26th—
THE COURT: Yes.
MS. SPRAGUE: … That's a two-and-a-half page letter.
THE COURT: But didn't we have multiple trauma surgeons, neurosurgeons, who've testified, who treated her? Couldn't, couldn't... So I would just ask, is that consistent with, and that's pretty much what I'm looking at, Dr. Laposata's note. I'm not sure I would allow in opinions regarding whether or not it's a serious suicide or not, but she does indicate it's consistent with landing on a individual's head.
MS. SPRAGUE: Well, Your Honor, we had a trauma surgeon from the South Shore Hospital testify who said that the injuries that Ms. Clancy sustained were a level one, and she had to be transported to another—
THE COURT: Right.
MS. SPRAGUE: ... hospital, where doctors who were trained in those injuries could operate on her. So we didn't think that she would have the knowledge and the training and experience to testify about the nature of those injuries and how they occur. The trauma surgeon from Brigham and Women's Hospital is with the military and is overseas in the Middle East and so was unavailable. But had we known that this was going to be an issue and they were going to allege this particular type of fracture, we would have endeavored to get another expert in replace of the doctor who treated her at Brigham and Women's. But we didn't know that this would even be an issue until a week before trial. And again, this report, this letter is dated July 26, and it doesn't tell us which records, which reports, or which—what medical journals or training or anything that these opinions are based on.
THE COURT: Well, that could be done by voir dire. I mean—
MR. REDDINGTON: Could I—
THE COURT: The Commonwealth, the Commonwealth has at least inferred through their case that this was not a serious suicide attempt, right? I mean, and there's—
MS. SPRAGUE: No.
THE COURT: ... there's questions about she—whether or not somebody's hanging outside the window or not.
MS. SPRAGUE: We—
THE COURT: And so why wasn't this an issue that the Commonwealth could have anticipated would come up?
MS. SPRAGUE: The position of the Commonwealth isn't that it wasn't a serious suicide attempt. It's that the methods that were chosen were insufficient to achieve the goal. And the reasons for that, we would argue in our closing, I don't think we have to disclose that theory at this point, but we've never said it wasn't a serious suicide attempt. We've never said it was a fake suicide attempt. What we've endeavored to develop from the testimony is that the methods that were chosen were methods that would be unsuccessful, but we're not saying it wasn't a serious attempt. And I think the reasons for that will become clearer when the doctors give their testimony. But it's our position that she was attempting to kill herself that night, and there are various reasons and factors where she was unsuccessful in killing herself but successful in killing her children.
THE COURT: But there's been all kinds of testimony regarding, there seems to be a dispute of whether or not she's hanging from the windowsill or goes out headfirst. There's some testimony that's been raised, even with the blood experts and things, that she may have been hanging from the windowsill. Dr. Laposata, it seems what they're seeking, Your Honors, is those injuries are consistent with somebody who lands on their head.
MS. SPRAGUE: So would the court allow us to call a witness who's not on our witness list to rebut that evidence?
THE COURT: Yeah, I would consider that. Sure.
MR. REDDINGTON: Yeah, I would have no problem with that.
THE COURT: Yeah. And this is kinda what, you know, why— we— I didn't make a decision on this earlier, 'cause we have to kinda see how the case develops. And this issue of how this injury occurs is certainly, it's either been specifically and explicitly raised or inferred in multiple questions. You know, even to the length of, to the part— you know, the cuts and things like that. It's been over and over and over. So if the Commonwealth seeks to get somebody to rebut that, I would strongly consider that. In regards to Dr. Laposata's opinion, we may need a voir dire in regards to. But I wouldn't imagine the voir dire would take that long. It would be, you know, "Did you view, you know, the X-rays?" I mean, that kind of an injury is probably pretty clear on the X-rays or the MRIs.
MS. SPRAGUE: If we could get a list from defense counsel on what she's basing her opinion on so we can have our witness review the same material.
MR. REDDINGTON: I can tell you right now, it's just simple. It's just the South Shore Hospital medical records, Brigham and Women's medical records that have already been discussed with the jury.
THE COURT: Why don't we do this, just so it's clear, 'cause when a witness is on the stand, it's much easier to have something in writing to say, "Is this what you relied on?" So if you could get from Dr. Laposata what she is relying upon to form that opinion, like I said, I'm inclined to allow that opinion. And I would allow then the Commonwealth to present a rebuttal witness if they seek to.
MS. SPRAGUE: And just note our objection to—
THE COURT: Sure.
MS. SPRAGUE: … that. But also, the third expert, what we have here is a letter dated August fourth that's a page and a half that's not even signed, by, I believe it's Dr.—
MR. REDDINGTON: Vulfovich.
MS. SPRAGUE: … Vulfovich.
THE COURT: Yeah.
THE COURT: I'm more concerned with that, is whether or not the opinion is admissible. The opinion as I see it is he's reviewed the medical records, and it's his opinion this was commonly— these are injuries that commonly observed in the, quote, "serious suicide attempts."
MR. REDDINGTON: We could delete serious.
THE COURT: Yeah. I mean, I— or even suicide attempts. That— that's an opinion—
MR. REDDINGTON: Well, I think their doctors waxed eloquently about suicide and whether or not it's—
THE COURT: Right.
MR. REDDINGTON: … I mean, they—
THE COURT: But, but—
MR. REDDINGTON: We can delete serious.
THE COURT: … but I'm just concerned that— how are we gonna kinda parse out what he looked at? A hundred other cases, and then we go through into all of those. So I'm gonna have to take a look. That's one I'm gonna take under advisement for sure. That doesn't mean he may have other opinions I'm gonna have to look at. I think he talked about some of his observations as an emergency room doctor, I think, didn't he?
THE COURT: Yeah, I'm more reluctant to allow in that individual's opinion that this was a suicide attempt.
MR. REDDINGTON: So the South Shore doctors were able to talk about, you know, superficial, superficial, as we've heard for a week now. But his opinion that it's consistent with what he's observed in his emergency room treatment is not admissible?
THE COURT: No, that's not what I'm saying.
MR. REDDINGTON: Oh, I'm sorry.
THE COURT: What I'm saying is that he can't necessarily give the opinion, "I've looked at this. It's my opinion this was a suicide attempt." But he can certainly testify, "I've looked at the cuts. These are," you know, the phrase superficial, I think that's been kinda mixed up in this whole thing too. That seems to be more of a medical term, as opposed to, that—
MR. REDDINGTON: Well, no. They basically beat it—
THE COURT: Yeah.
MR. REDDINGTON: … to death with not being a medical term until we were able to show that, in fact, it's a deep—
THE COURT: Right.
MR. REDDINGTON: … it was deep.
THE COURT: Right.
MR. REDDINGTON: Three point five and two. Okay.
THE COURT: Yeah. I mean, if you wanna call this doctor, he's gonna say, "That's a significant cut."
MR. REDDINGTON: Okay.
THE COURT: That's different than saying, "Looking at that, I find that this is a suicide attempt." Just like I— there's never been an opinion here that this was not a suicide attempt. That's probably something that the jury—
MR. REDDINGTON: Might be true now but it wasn't a week ago.
THE COURT: Well, that's gonna probably be for the jury to determine. But I would allow kind of going into the characteristics that have already been testified to, the— So, and I don't— If we need a further voir dire on that doctor as well, but I think he lists in there kinda what he reviewed. But—
MS. SPRAGUE: He did.
THE COURT: Yeah.
MR. REDDINGTON: Yep.
THE COURT: All right. Anything else in regards to those three witnesses?
MR. REDDINGTON: Nope.
THE COURT: All right.
MS. SPRAGUE: No.
THE COURT: So I'm gonna take this under advisement, but just kinda for what I'm inclined to do is, I've gotta take a look at Dr. Condie's report and compare it to some of the other reports. I'm inclined to let Dr. Laposata testify that it consis— the— that the injuries are consistent with basically a fall on the head. And the last doctor, we gotta take a look at kinda his language, but I would not be allowing in that his opinion that this is a suicide attempt. But he may testify as to all the other observations that he took from those records. All right.
MR. REDDINGTON: Understood. Just note my objection for whatever it's worth.
THE COURT: All right. And so I'll note the Commonwealth's objection. I'll note the defendant's objection. And so— and like I said, I'll take it under advisement, and everybody can renew those objections again.
MR. REDDINGTON: As it relates to Condie, once you make your decision, you let me know, I can certainly reach out to him and have him delete the standard as to standard of care, and just reference the actual treatment and prescriptions that she received.
THE COURT: All right. All right, so I'll take a look at this. I'll have this tomorrow morning for everybody—
MR. REDDINGTON: Okay.
THE COURT: ... when you come in.
MR. REDDINGTON: Great.
THE COURT: All right.
MR. REDDINGTON: Thank you.
THE COURT: So, anything else we need to address?
MR. REDDINGTON: Just in case there's a problem, Dr. Laposata has been working with a gentleman by the name of Mr. Drake, that, Drake Laboratories, that is putting together an auto computer-animated display of coming out the window, the injuries to the neck showing the vertebrae and that type of thing, which is all based upon evidence that's already in evidence here. So I just wa— I haven't got it yet. I—it's not done yet. So I don't want to not say anything about it now because they'll be objecting to it tomorrow, I'm sure. Or whenever it's ready.
THE COURT: I assume, I assume we'll have to take a look at that—
MR. REDDINGTON: Yep.
THE COURT: … and hear—give the Commonwealth the opportunity to view it, and hear the arguments in regards. It may be something nobody has objection to or maybe, I don't know. All right?
MS. SPRAGUE: The Commonwealth would have an objection to it and it goes back—
THE COURT: You don't know, you haven't seen it.
MS. SPRAGUE: But it goes back to the whole position that, you know, we have the right to, if we want to obtain another expert—
THE COURT: Sure.
MS. SPRAGUE: … and then that expert could review that material and, you know, use it to form his opinion. This is different than the 3D diagram of the house that the Commonwealth gave. The defense was on notice that that was coming, the basis of it, the measurements of what the house looked like itself, and so that was turned over. This is completely different.
MR. REDDINGTON: Can I just note that, as I said, the medical records that the government has talks about Jefferson fracture. You might remember two weeks ago or two and a half weeks ago when they first raised their objection, I told you that I can't know what they're gonna argue until they argue it. So I didn't know whether or not they were gonna say that it's a fake suicide or that she didn't jump out the window. I had to wait to see what their opening was. Now I know I have to rebut it.
THE COURT: We were almost out of here till you mentioned that—
MR. REDDINGTON: Yeah, sorry.
THE COURT: … 3D thing. So why don't, why don't we do this? We'll wait on that.
MR. REDDINGTON: Okay.
THE COURT: All right? I'm not committing one way or the other—
MR. REDDINGTON: Yep.
THE COURT: … in regards to that. We'll see, you know, and so you may be the testimony with the 3D, the testimony without the 3D, we'll just kinda see here—
MR. REDDINGTON: Okay.
THE COURT: … see where we go.
MR. REDDINGTON: Thank you.
THE COURT: All right. All right. So, thanks everybody for kinda buckling down and going through that so we could resolve that as best we can. I appreciate that.
MR. REDDINGTON: Thank you, Judge.
THE COURT: So we'll be in recess on this matter till tomorrow aftern—tomorrow morning at 9:00. All right? Thank you.
BAILIFF: Court, all rise.