P V CM SEPT 7TH 2011

APPEARANCES: DEFENDANT CONRAD ROBERT MURRAY, NOT PRESENT, REPRESENTED BY EDWARD M. CHERNOFF,   J. MICHAEL FLANAGAN, AND NAREG GOURJIAN,

 

PEOPLE REPRESENTED BY DAVID WALGREN AND DEBORAH BRAZIL, DEPUTIES DISTRICT ATTORNEY                    

 

THE COURT:   ON THE CASE OF PEOPLE VERSUS CONRAD ROBERT MURRAY, CASE SA073164, DR. MURRAY IS NOT PRESENT PURSUANT TO 977 OF THE PENAL CODE.   WE HAVE MR. CHERNOFF, MR. FLANAGAN, MR. GOURJIAN PRESENT ON BEHALF OF THE DEFENSE.   MR. WALGREN AND MS. BRAZIL ON BEHALF OF THE PEOPLE. YESTERDAY THE DEFENSE FILED A MOTION IN LIMINE, AND A FEW MOMENTS AGO I WAS HANDED PEOPLE’S RESPONSE THERETO.   DO COUNSEL WANT TO ADDRESS THIS HERE AND NOW THIS MORNING OR AT SOME OTHER TIME?

 

MR. CHERNOFF:   I THINK WE PREFER —

 

THE COURT:   I INVITE YOU TO RESPOND, MR. CHERNOFF OR MR. FLANAGAN, WHOEVER IS HANDLING IT.

 

MR. FLANAGAN:   I THINK WE ARE READY TO ADDRESS IT NOW.

 

THE COURT:   OKAY.   ARE THE PEOPLE?

 

MR. WALGREN:   YES, YOUR HONOR.

 

THE COURT:   MR. FLANAGAN, IT IS YOUR MOTION.   I’M HAPPY TO HEAR YOUR VERBAL POSITION.

 

MR. FLANAGAN:   I HAVE SET FORTH A MOTION, AS I SEE IT, IN MY POINTS AND AUTHORITIES, YOUR HONOR.

 

THE COURT:   IS IT THE DEFENSE INTENT, AT LEAST AT THIS JUNCTURE, TO CALL AS A DEFENSE FORENSIC EXPERT DR. WHITE.

 

MR. FLANAGAN:   YES.

 

THE COURT:   AND DR. WHITE’S CREDENTIALS ARE IN THE AREA OF ANESTHESIOLOGY AND, IS IT, PHARMACOLOGY OR TOXICOLOGY?   CERTAINLY, ANESTHESIOLOGY, RIGHT?

 

MR. FLANAGAN:   HE IS AN ANESTHESIOLOGIST.

 

THE COURT:   WITH EXPERTISE IN THE AREA OF PROPOFOL.

 

MR. FLANAGAN:   YES.   AS A MATTER OF FACT, HE WAS ONE OF THE TEACHERS OF DR. SHAFER.

 

THE COURT:   AND DOES DR. WHITE LIST AS A REFERENCE OR OTHERWISE HAVE CONTACT WITH OR INTERACT WITH THIS DR. SEPULVEDA, WHO APPARENTLY IS THE HEAD OF ONE OF THE STUDIES THAT IS AT ISSUE HERE.

 

MR. FLANAGAN:   I’M UNAWARE OF THAT, YOUR HONOR.   I DON’T KNOW THAT DR. SEPULVEDA’S STATEMENT IS AN ACTUAL STUDY.   I DON’T KNOW HOW THAT ALL CAME DOWN.   I DON’T KNOW IF DR. SHAFER SAW THAT, IS FAMILIAR WITH IT. IT IS JUST WE HAVE GOT THAT LETTER REPORT. IT IS NOT WRITTEN BY DR. SEPULVEDA.   IT IS A REPORT WRITTEN BY DR. SHAFER, IN WHICH HE STATES THAT APPARENTLY DR. SEPULVEDA IS A FRIEND OF HIS IN CHILE AND DID SOME WORK DOWN THERE AND TOLD SHAFER ABOUT IT. I DON’T BELIEVE IT IS A PUBLISHED STUDY.   I DON’T BELIEVE IT HAS BEEN REVIEWED BY ANY PEER REVIEW OR WHATNOT.   I DON’T KNOW ANYTHING ABOUT THAT, OTHER THAN ONE HALF-PAGE REPORT THAT DR. SHAFER IS AWARE OF SOMETHING BEING DONE IN CHILE.

 

THE COURT:   DR. WHITE, ACCORDING TO THE DEFENSE, IS GOING TO BE TESTIFYING ABOUT THE MANNER AND MECHANISM OF PROPOFOL AND SPECIFICALLY INGESTION OF PROPOFOL.

 

MR. FLANAGAN:   HE IS GOING TO BE TALKING ABOUT THE EFFECTS OF PROPOFOL AND HOW IT IS METABOLIZED.

 

THE COURT:   WILL HE BE ADDRESSING ISSUES INVOLVING THE WAYS PROPOFOL CAN BE ADMINISTERED INTO THE BODY? SPECIFICALLY, ORAL INGESTION OF PROPOFOL?

 

MR. FLANAGAN:   HE WILL BE ADDRESSING THOSE ISSUES.

 

THE COURT:   I’LL HEAR FROM THE PEOPLE.   MR. WALGREN AND/OR MS. BRAZIL?

 

MR. WALGREN:   THANK YOU, YOUR HONOR. DR. STEVEN SHAFER WILL BE CALLED BY THE PEOPLE AS AN EXPERT.   AS THE COURT IS WELL AWARE, AND AS THE EVIDENCE CODE SPECIFICALLY PROVIDES FOR, AN EXPERT SUCH AS DR. SHAFER CAN RELY ON THAT TYPE OF MATERIAL, WHETHER OR NOT ADMISSIBLE.   HE MAY REASONABLY RELY UPON THEM AS AN EXPERT.   DR. SHAFER, AS I NOTE IN MY POINTS AND AUTHORITIES, IS AN INTERNATIONALLY RECOGNIZED EXPERT IN THE FIELD OF ANESTHESIOLOGY AND PHARMACOLOGY.   HE IS A PROFESSOR OF ANESTHESIOLOGY AT COLUMBIA UNIVERSITY.   HE IS AN ADJUNCT PROFESSOR OF ANESTHESIOLOGY AT STANFORD UNIVERSITY.   HE IS AN ADJUNCT PROFESSOR OF BIO-ENGINEERING AND THERAPEUTIC SCIENCES AT THE UNIVERSITY OF CALIFORNIA AT SAN FRANCISCO.   HE IS EDITOR-IN-CHIEF OF THE LEADING ANESTHESIA JOURNAL UNDER WHICH SITS DR. PAUL WHITE AS A CONTRIBUTOR TO THAT JOURNAL. HE HAS BEEN RECOGNIZED AND RECEIVED COUNTLESS AWARDS INTERNATIONALLY.   HE LECTURES INTERNATIONALLY.   I BELIEVE HE HAS LECTURED WITH PAUL WHITE.   HE HAS LECTURED WITH DR. PABLO SEPULVEDA. HE WILL BE CALLED AS AN EXPERT TO OFFER HIS OPINIONS AS TO THE EGREGIOUS VIOLATIONS AND STANDARD OF CARE BY DR. MURRAY.   HE WILL ALSO BE TESTIFYING, NOT ONLY TO THE ACTIONS OF DR. MURRAY, BUT ALSO IN REGARD TO THE OPINION THAT THERE IS “ZERO POSSIBILITY” THAT THE PROPOFOL WAS ORALLY INGESTED. FINALLY, DR. SHAFER IS OF THE OPINION THAT THE DEFENDANT IS RESPONSIBLE FOR THE DEATH OF MICHAEL JACKSON THROUGH COUNTLESS EXTREME AND UNCONSCIONABLE VIOLATIONS OF THE STANDARD OF CARE. PART OF THE BASIS OF DR. SHAFER’S OPINIONS ARE OTHER SCIENTIFIC MEDICAL JOURNALS, OTHER SCIENTIFIC ACADEMIC STUDIES, WHICH HE SITES MULTIPLE SUCH STUDIES IN HIS REPORT.   BUT AS I NOTE IN MY MOTION, THE DEFENSE, I BELIEVE, IS JUST OBJECTING TO TWO AND NOT THE OTHER ONES. IN ANY EVENT —

 

THE COURT:   LET’S DEAL THEN WITH THOSE TWO.

 

MR. WALGREN:   THE TWO THAT ARE CITED — AGAIN, THERE IS A SCIENTIFIC STUDY REGARDING PROPOFOL THAT THE DEFENSE OBJECTS TO THAT IS A PUBLISHED ARTICLE IN THE INTERNATIONAL JOURNAL OF ANESTHESIOLOGY. AND THEN THERE IS AN ADDITIONAL STUDY BY DOCTOR AND PROFESSOR PABLO SEPULVEDA OUT OF CHILE.   AS I NOTE IN MY MOTION, DR. PABLO SEPULVEDA IS ALSO WELL KNOWN IN THIS INTERNATIONAL FIELD OF ANESTHESIOLOGISTS. DR. PAUL WHITE DOES CITE DR. PABLO SEPULVEDA ON HIS WEBSITE AS SOMEONE HE HAS WORKED WITH IN THE PAST AND CONDUCTED INTERNATIONAL LECTURES IN THIS FIELD OF EXPERTISE.   THEY HAVE WORKED TOGETHER IN SUCH STUDIES OR IN SUCH PRESENTATIONS IN THE PAST. AND IT IS ENTIRELY REASONABLE AND APPROPRIATE THAT DR. SHAFER WOULD RELY ON SUCH STUDIES BY OTHER EXPERTS IN THE FIELD.  THE CODE ALLOWS FOR IT.   IT HAPPENS ON A DAILY BASIS.   WE EXPECT DR. SHAFER TO BE PERMITTED TO RELY ON SUCH OTHER STUDIES IN HIS TESTIMONY IN THIS TRIAL.

 

THE COURT:   HAVE YOU READ THE PARTICULAR STUDY THAT WAS PUBLISHED IN THE JOURNAL OF ACTA?

 

MR. WALGREN:   I HAVE READ IT.   I DON’T HAVE IT.

 

THE COURT:   IS IT IN ENGLISH?

 

MR. WALGREN:   YES.

 

THE COURT:   IT LOOKS LIKE — I MEAN IT LOOKS LIKE FROM THE TITLE IT IS IN SCANDINAVIAN.   I DON’T KNOW IF IT IS IN THE ENGLISH LANGUAGE, OR FINNISH, OR DUTCH, OR SOME OTHER LANGUAGE. LET ME ASK YOU THIS.   IS THERE A DISCUSSION IN THAT ARTICLE, OR ARE YOU AWARE OF INFORMATION FROM ANY OF YOUR EXPERTS AS TO THE CORRELATION BETWEEN ANY RESULTS THAT MAY HAVE BEEN OBTAINED USING PIGLETS IN TERMS OF HUMANS?

 

MR. WALGREN:   I DON’T HAVE THAT ARTICLE BEFORE ME RIGHT NOW, YOUR HONOR.   BUT, YES, THAT WAS THE POINT OF THE STUDY.   BUT I DON’T HAVE THE DATA OR THE INFORMATION IN FRONT OF ME RIGHT NOW.

 

MR. FLANAGAN:   I HAVE THE ARTICLE IF THE COURT WOULD LIKE TO READ IT.

 

MR. WALGREN:   THE ISSUE IS WHETHER THAT IS PROPERLY THE BASIS OF THE OPINION.   IF MR. FLANAGAN WANTS TO CROSS-EXAMINE THE EXPERT, THAT IS ANOTHER ISSUE ENTIRELY. BUT THE ISSUE, I THINK, IS WHETHER IT IS A PROPER BASIS FOR OPINION, WHICH I THINK CLEARLY UNDER THE LAW IT IS.

 

THE COURT:   ARE YOU LED TO BELIEVE THIS JOURNAL IS A JOURNAL THAT IS LIMITED TO NON-HUMANS?   IT IS AN ANIMAL, VETERINARY ANESTHESIOLOGICAL JOURNAL?

 

MR. WALGREN:   NO.   THE NORM IS THAT SCIENTIFIC STUDIES ARE DONE ON ANIMALS.   THIS IS JUST ANOTHER STUDY OF THAT NATURE.   QUITE FRANKLY, UNTIL THIS CASE AROSE, I DON’T KNOW THAT ANYONE EVER CLAIMED THERE WAS AN INCIDENT OF ORAL INGESTION OF PROPOFOL.   I DON’T KNOW THAT THERE WOULD HAVE BEEN SUCH A REASON FOR STUDIES TO HAVE OCCURRED PREVIOUSLY.

 

THE COURT:   WITH REGARD TO THE SECOND STUDY OUT OF THE COUNTRY IN CHILE, WHAT, IF ANY, DOCUMENTATION EXISTS

 ABOUT THAT STUDY?

 

MR. WALGREN:   ALL OF THE DATA FROM THE STUDY, THE BLOOD LEVELS, PLASMA LEVELS, THE DIFFERENT READINGS AT DIFFERENT INTERVALS, HAVE BEEN PROVIDED TO DEFENSE COUNSEL IN A REPORT WRITTEN BY DR. SHAFER.   ALL RELEVANT DATA UPON WHICH HE BASES HIS OPINION IS IN THAT STUDY.

 

THE COURT:   HAS THAT STUDY SEEN ITS WAY INTO ANY KIND OF ACADEMIC JOURNAL AS A PUBLISHED ARTICLE?

 

MR. WALGREN:   NOT YET, YOUR HONOR.

 

THE COURT:   IS IT STILL ONGOING OR BEEN COMPLETED?

 

MR. WALGREN:   I BELIEVE IT HAS BEEN COMPLETED.   I BELIEVE IT IS COMPLETED.

 

THE COURT:   MR. FLANAGAN, THE DEFENSE HAS BOTH THE JOURNAL ACTA AND THE DATA FROM CHILE?

 

MR. FLANAGAN:   I HAVE GOT THE JOURNAL ARTICLE ON THE PIGLETS WHERE THE PIGLETS — I DON’T KNOW HOW MANY PIGLETS, BUT I THINK FIVE PIGLETS HAVE PROPOFOL SUPPOSITORIES SHOVED UP THEIR RECTUM AND THEY WERE WATCHED TO SEE IF THEY WENT TO SLEEP.   I DON’T THINK THAT APPLIES TO HUMANS, THE OTHER END OF THE G.I. SYSTEM, RECTUM.   I THINK THE G.I. SYSTEM VARIES FROM TOP TO BOTTOM.

 

MR. WALGREN:   IS THE QUESTION WHETHER DEFENSE HAS A COPY OF THE JOURNAL?

 

THE COURT:   I THOUGHT IT WAS.   YOU HAVE THE COPY. BUT I’LL ALLOW MR. FLANAGAN TO FINISH HIS ANSWER.

 

MR. FLANAGAN:   I THINK THE G.I. SYSTEM VARIES FROM TOP TO BOTTOM. WITH RESPECT TO THE CHILEAN STUDY, IT INVOLVES SIX STUDENTS, THREE OF WHICH DRANK 20 MILLILITERS OF PROPOFOL, AND THREE OF WHICH DRANK 40 MILLILITERS OF PROPOFOL.   FIVE OF THE STUDENTS DIDN’T DEVELOP SIGNIFICANT PROPOFOL LEVEL, BUT ONE OF THEM DEVELOPED A LEVEL OF 1.93, WHICH IS ENOUGH TO PUT A PERSON TO SLEEP. THESE ARE THE STATISTICS QUOTED BY DR. SHAFER.   APPARENTLY, HE GOT THESE THINGS ORALLY FROM DR. SEPULVEDA BECAUSE DR. SHAFER CERTAINLY DIDN’T ATTACH ANY COMMUNICATION, WRITTEN COMMUNICATION, TO THE WRITTEN RESULTS FROM DR. SEPULVEDA TO HIS ONE-AND-A-HALF PAGE LETTER DATED AUGUST 24, 2011.   I GUESS WE COULD TAKE DR. SHAFER’S WORD THAT THAT IS EXACTLY WHAT DR. SEPULVEDA TOLD HIM.   I DOUBT VERY MUCH IF WE WOULD HAVE RECEIVED ANY COMMENT LIKE THAT FROM DR. SHAFER HAD THE STUDY GONE THE OTHER WAY.   THERE IS NO ADEQUATE EXPLANATION AS TO WHY ONE OF THE STUDENTS DID DEVELOP SIGNIFICANT PROPOFOL LEVEL. I DIDN’T SEE ANYTHING WHERE DR. SHAFER WAS THERE TO SEE THE STUDY.   IT IS JUST SOMETHING ONE OF HIS FRIENDS IN CHILE SAID TO HIM APPARENTLY ON THE PHONE.   I DON’T THINK THAT IS THE PROPER STUFF FOR AN EXPERT TO RELY ON.

 

THE COURT:   WELL, YOU HAVE PROVIDED TO DR. WHITE AND/OR ANY OTHER FORENSIC EXPERT WHOM YOU HAVE CONSULTED THIS INFORMATION?

 

MR. FLANAGAN:   NO.

 

THE COURT:   YOU HAVEN’T?

 

MR. FLANAGAN:   NO.

 

THE COURT:   THERE IS A REASON WHY YOU HAVEN’T?

 

MR. FLANAGAN:   DR. WHITE HAS BEEN ON VACATION AND JUST RETURNED.   I’M GOING TO PROVIDE HIM SOME OF THIS OTHER INFORMATION THAT WE HAVE RECEIVED, BUT HE DOESN’T HAVE IT YET.   WE DIDN’T GET THIS UNTIL THE END OF AUGUST. YOU KNOW, LAST WEEK, YOUR HONOR.

 

THE COURT:   I THOUGHT THERE WAS SOME DISCUSSION BEFORE THAT ABOUT SOME EXISTING STUDY IN CHILE.

 

MR. WALGREN:   THERE WAS, YOUR HONOR.

 

MR. FLANAGAN:   DR. SHAFER, APPARENTLY IN A LETTER ABOUT A MONTH AGO, SAID THERE WAS A STUDY BEING DONE IN CHILE.   AND AS SOON AS HE FOUND OUT ABOUT WHAT THE RESULTS WERE, THAT HE WOULD BE SENDING THAT.   HE SENT THAT ON AUGUST 24 TO THE D.A.’S OFFICE, AND THEN THE D.A. GAVE IT TO US AT SOME POINT IN TIME AFTERWARD.   I THINK IT WAS LAST WEEK.

 

THE COURT:   WELL, AS A WELL-RESPECTED EXPERT, DO YOU KNOW IF DR. WHITE IS FAMILIAR WITH THIS JOURNAL, ACTA ANESTHESIOLOGICAL SCANDINAVICA?

 

MR. FLANAGAN:   THAT IS A VETERINARY PUBLICATION, YOUR HONOR.   THE INDIVIDUALS THAT DID THAT STUDY WERE — THEY ARE VETERINARIANS.

 

THE COURT:   FROM WHAT YOU KNOW, DOES DR. WHITE TAKE ISSUE WITH THE PREMISE OF THE ARTICLE AND THE CONCLUSIONS AND THEIR APPLICABILITY TO HUMAN BEINGS?

 

MR. FLANAGAN:   I DON’T KNOW, YOUR HONOR.   IT IS JUST THAT THESE PEOPLE ARE FROM THE COLLEGE OF VETERINARY MEDICINE IN HELSINKI.

 

THE COURT:   OKAY.   HAVE YOU TALKED WITH DR. WHITE ABOUT THIS PARTICULAR ARTICLE?

 

MR. FLANAGAN:   NO.

 

THE COURT:   MR. WALGREN?

 

MR. WALGREN:   AGAIN, IT IS ENTIRELY ADMISSIBLE, ENTIRELY APPROPRIATE, TO RELY — NONE OF MR. FLANAGAN’S OBJECTIONS AMOUNT TO A LEGAL OBJECTION.   HE SIMPLY IS INDICATING WHAT HE HOPES TO ASK ON CROSS-EXAMINATION, EVIDENTLY.   IT IS ADMISSIBLE, PROPER, COMPETENT EVIDENCE UPON WHICH EXPERTS RELY ON, ON A DAILY BASIS.

 

THE COURT:   WELL, WHEN YOU SAY EXPERTS RELY ON A DAILY BASIS, I DON’T KNOW WHAT THAT MEANS OTHER THAN A GRAND STATEMENT THAT AN EXPERT CAN RELY ON ANYTHING.

 

MR. WALGREN:   DR. SHAFER IS AN ACADEMIC SCIENTIST AND A PRACTICING ANESTHESIOLOGIST.   IN THAT PRACTICE, HE RELIES ON OTHER DOCTORS’ STUDIES ON A DAILY BASIS.   ANY EXPERT THE DEFENSE CALLS WOULD ATTEST TO THAT.   IT IS DONE BY ALL SUCH EXPERTS IN THAT FIELD.   THEY RELY ON ANIMAL STUDIES, DIFFERENT STUDIES INTERNATIONALLY.   IT HAPPENS DAILY. AND I WOULDN’T THINK THAT WOULD BE A SURPRISE TO ANYONE THAT EXPERTS IN THAT FIELD RELY ON THAT TYPE OF PEER STUDY ALL THE TIME.   DR. SHAFER DOES IT DAILY.   HE HAS CITED NUMEROUS ARTICLES IN HIS REPORT.   I’M SURE DR. WHITE WOULD CITE NUMEROUS ARTICLES IF HE WAS TO TESTIFY. IT IS A VERY COMMON OCCURRENCE.

 

THE COURT:   DO YOU HAVE DR. WHITE’S C.V.?

 

MR. WALGREN:   I DO.

 

THE COURT:   YOU HAVE HIS REPORT?

 

MR. WALGREN:   I DO.

 

THE COURT:   DOES HE EITHER LIST IN HIS C.V. ACADEMIC JOURNALS TO WHICH HE HAS CONTRIBUTED, OR IN HIS REPORT ANY ACADEMIC MATERIALS ON WHICH HE HAS RELIED?

 

MR. WALGREN:   YES.

 

THE COURT:   LIKE, GIVE ME SOME FOR INSTANCES.

 

MR. WALGREN:   SIMILAR MEDICAL JOURNALS AS DR. SHAFER RELIED ON.   AGAIN, I CAME HERE — THE ISSUE IS THE PROPER BASIS OF THE OPINION.   I DON’T HAVE DR. PAUL WHITE’S C.V. IN FRONT OF ME.   HE CITES ARTICLES SIMILAR IN NATURE, SIMILAR IN CONTENT, BY DIFFERENT EXPERTS, DIFFERENT FIELDS, FOR HIS OPINIONS.

 

THE COURT:   DO YOU WANT TO BE HEARD ANY FURTHER, MR. WALGREN?

 

MR. WALGREN:   NO.   THANK YOU, YOUR HONOR.

 

THE COURT:   MR. FLANAGAN?

 

MR. FLANAGAN:   WOULD YOU LIKE TO SEE DR. SHAFER’S REPORT?   IT IS ABOUT A PAGE, ACTUALLY.

 

THE COURT:   SURE.   DO THE PEOPLE CARE IF I LOOK AT IT?

 

MR. WALGREN:   IS IT THE COURT GOING TO LOOK AT IT? FOR WHAT ISSUE?   I’M JUST CURIOUS.

 

MR. FLANAGAN:   THIS IS NOT A JOURNAL STUDY.   THIS IS NOT SOMETHING THAT HAS BEEN SUBJECT TO PEER REVIEW. THIS IS NOT EVEN SOMETHING DONE HERE IN THE UNITED STATES.

 

THE COURT:   YOU ARE TALKING ABOUT DR. SEPULVEDA. YOU ARE NOT TALKING ABOUT THE ARTICLE.

 

MR. FLANAGAN:   I’M TALKING ABOUT THERE IS NO ARTICLE.   WE HAVE NOT BEEN PROVIDED WITH ANY ARTICLE BY DR. SEPULVEDA.

 

THE COURT:   NO, NO.   I’M TALKING ABOUT THE FIRST, THE COMPARATIVE STUDY.

 

MR. FLANAGAN:   THAT WOULD TAKE A LITTLE BIT LONGER FOR THE COURT TO REVIEW.

 

THE COURT:   YOU ARE TALKING ABOUT CERTAIN DATA AS FAR AS DR. SEPULVEDA IS CONCERNED.

 

MR. FLANAGAN:   RIGHT.

 

THE COURT:   I MISUNDERSTOOD.   THERE IS NO REASON FOR ME TO LOOK AT THAT.

 

MR. FLANAGAN:   ALL RIGHT.

 

THE COURT:   AND APPARENTLY, DR. WHITE HASN’T LOOKED AT IT EITHER.

 

MR. FLANAGAN:   NO.

 

THE COURT:   WERE YOU THINKING OF LETTING HIM LOOK AT IT?

 

MR. FLANAGAN:  IF IT IS GOING TO BE A FACTOR IN THIS CASE —

 

THE COURT:   IT IS.

 

MR. FLANAGAN:   — WE WILL SHOW IT TO HIM. BUT I JUST THOUGHT IT LOOKS LIKE THE RESULTS OF A PHONE CALL FROM SOME GUY IN CHILE REGARDING PROPOFOL FED TO SIX VOLUNTEERS DOWN THERE AND WHAT THE GUY SAID. I MEAN THIS IS NOT SOMETHING THAT HAS BEEN — THAT IS OF COMMON KNOWLEDGE.   I DON’T KNOW THAT ANYBODY OTHER THAN SHAFER AND SEPULVEDA KNOW ABOUT THIS.

 

THE COURT:   THAT IS THE ISSUE I HAVE, MR. WALGREN. I HAVE NO ISSUE WHATSOEVER WITH THE COMPARATIVE STUDY THAT IS PUBLISHED. THE QUESTION IS THE STATUS AND POSTURE OF THIS CHILEAN STUDY OR EXPERIMENT, ET CETERA, AND ITS FORM AND FORMAT.   IS THIS SOMETHING THAT IS ONGOING WHERE ONE ANESTHESIOLOGIST IS JUST MAKING A PHONE CALL, AS MR. FLANAGAN IMPLIES, TO ANOTHER ANESTHESIOLOGIST, JUST KIND OF SHARING SOME RANDOM THOUGHTS ABOUT IT?

 

MR. WALGREN:   NO, YOUR HONOR.   MOST OF WHAT MR. FLANAGAN SAID HAS NO BASIS IN FACT WHATSOEVER. THIS WAS A STUDY PERFORMED PURSUANT TO ALL THE STANDARD PROTOCOLS IN THE SCIENTIFIC COMMUNITY.   IT WAS A STUDY AT A UNIVERSITY WHERE DR. SEPULVEDA IS BOTH A MEDICAL DOCTOR AND ANESTHESIOLOGIST AND PROFESSOR.   IT WAS A STUDY INVOLVING SIX VOLUNTEER SUBJECTS, AND IT WAS A STUDY THAT CONCLUDED THAT ORAL PROPOFOL HAS NO BIO-AVAILABILITY AND WAS NOT, ACCORDING TO DR. SHAFER’S OPINION, COULD NOT HAVE BEEN THE CAUSE OF DEATH AS IT RELATES TO MICHAEL JACKSON. THIS WAS A SCIENTIFIC MEDICAL STUDY.   IT WAS OF RECENT OCCURRENCE.   SO, NO, IT HAS NOT BEEN PUBLISHED. I DON’T THINK THAT IS A LITMUS TEST AS TO WHETHER AN EXPERT CAN RELY ON IT.   IT HASN’T BEEN PUBLISHED, YET IT IS A STUDY THAT JUST OCCURRED.

 

THE COURT:   ANYTHING FURTHER, MR. WALGREN?

 

MR. WALGREN:   NO, YOUR HONOR.

 

THE COURT:   MR. FLANAGAN?

 

MR. FLANAGAN:   I DON’T KNOW WHERE MR. WALGREN GOT ALL THAT INFORMATION BECAUSE I DON’T KNOW THAT IF DR. SHAFER WAS PROVIDED SOMETHING IN WRITING —

 

MR. WALGREN:   THE DEFENSE HAS ALL DISCOVERY AS IT RELATES TO THIS.   THIS ISN’T A DISCOVERY ISSUE.   IT IS A BASIS OF OPINION ISSUE.   IF MR. FLANAGAN WANTS TO GO ON ABOUT DISCOVERY, WE CAN TALK ABOUT THAT, BUT WE ARE HERE TO TALK ABOUT THE BASIS OF OPINION.

 

THE COURT:   THE BASIS OF OPINION IS CONTAINED IN A SERIES OF DOCUMENTS WHICH HAVE BEEN PROVIDED TO THE DEFENSE?

 

MR. WALGREN:   YES.

 

MR. FLANAGAN:   NOT THE BASIS.   THE OPINION IS CONTAINED IN A DOCUMENT, BUT THE BASIS FOR IT WE HAVE NOT BEEN PROVIDED.   IT SEEMS TO ME THAT IT WAS PROBABLY A PHONE CALL.   IF IT IS SOMETHING OTHER THAN A PHONE CALL AND WAS GIVEN TO DR. SHAFER IN WRITING, WE HAVE NOT BEEN PROVIDED WITH THAT.   MAYBE THE DISTRICT ATTORNEY’S OFFICE HAS, BUT WE HAVE NOT.

 

THE COURT:   I STILL DON’T UNDERSTAND HOW DR. SHAFER OBTAINED IT.

 

MR. WALGREN:   THAT WAS NOT AN INQUIRY I MADE.

 

THE COURT:   I WANT TO KNOW.   SO RIGHT NOW, AS FAR AS THE COURT IS CONCERNED, DR. SHAFER AND/OR DR. WHITE AND/OR ANY OTHER DULY QUALIFIED EXPERT CERTAINLY CAN BE ASKED QUESTIONS ABOUT THE SCIENTIFIC MEDICAL ARTICLE CONTAINED IN THE JOURNAL ACTA ANESTHESIOLOGICAL SCANDINAVICA.   THAT IS EXACTLY THE TYPE OF SCIENTIFIC JOURNAL WHICH CAN BE THE SUBJECT OF EXPERT TESTIMONY BASED UPON THE REPRESENTATIONS. IT IS CERTAINLY A MATTER WHICH IS WRITTEN BY INDIVIDUALS IN THE FIELD OF ANESTHESIOLOGY, AND THE INFORMATION CAN REASONABLY BE USED AND CAN BE RELIED UPON BY OTHER EXPERTS IN THE FIELD. I SEE NO BASIS FOR PRECLUDING IT UNDER EVIDENCE CODE SECTIONS 350, 352, 801 OR 802.   AND CERTAINLY, INDIVIDUALS CAN BE ASKED QUESTIONS ON DIRECT AND CROSS-EXAMINED ABOUT IT. WITH REGARD TO THE STUDY SUPERVISED BY DR. SEPULVEDA, I NEED MORE INFORMATION ABOUT THE UNDERLYING DATA.   SINCE IT IS NOT A SCIENTIFIC PUBLISHED ARTICLE, I DON’T KNOW THE SOURCE OF THE INFORMATION AND WHETHER THE INFORMATION IS FULL AND COMPLETE AS IT RELATES TO ANY OPINION THAT IS OFFERED BY DR. SHAFER. SO AT THIS POINT IN TIME I’M DEFERRING THE RESOLUTION ISSUE UNTIL I’M SATISFIED AS TO THE UNDERLYING FOUNDATION FOR THE INFORMATION.   NOT THE FACT THAT I’M GOING TO DISPUTE OR NOT DISPUTE THE CONCLUSIONS, BUT I THINK BOTH DR. SHAFER AND DR. WHITE AND ANYBODY ELSE WHO IS GOING TO BE TESTIFYING NEED MORE SPECIFIC INFORMATION FROM THE SOURCE.

 

IT IS ONE THING TO READ AN ARTICLE.   IT IS ANOTHER THING TO GET A PHONE CALL, IF THAT IS WHAT HAPPENED, OR TO GET A TEXT MESSAGE, OR AN E-MAIL, IF THAT IS WHAT HAPPENED.   SO I NEED TO BE SATISFIED ABOUT THE UNDERLYING DATA BEFORE I GO TO THE NEXT POINT. I CERTAINLY THINK THAT THE DEFENSE SHOULD BRING THIS TO THE ATTENTION OF DR. WHITE SO THAT WE CAN CONTINUE THIS DISCUSSION WITH A LITTLE MORE INFORMATION. SO THAT IS WHERE IT STANDS RIGHT NOW ON THAT ISSUE.

NEXT, BEFORE WE DEAL WITH THE QUESTIONNAIRE AND OTHER SCHEDULING MATTERS, PEOPLE?   THOUGHTS ABOUT ANYTHING ELSE FOR TODAY?

 

MR. WALGREN:   NO, YOUR HONOR.

 

THE COURT:   ANYTHING ELSE?   NO?

 

MR. WALGREN:   NO.

 

THE COURT:   DEFENSE?

 

MR. CHERNOFF:   NO.

 

THE COURT:   YESTERDAY, I E-MAILED TO DEFENSE, AT LEAST AS OF YESTERDAY, THE LATEST REVISION OF THE QUESTIONNAIRE.   I WANTED TO DISCUSS VERY MINOR GRAMMATICAL AND TYPOGRAPHICAL MODIFICATIONS OF THE QUESTIONNAIRE IN CHAMBERS SO I’LL BE ABLE TO HAND IT OVER AND HAVE IT PHOTOCOPIED. WOULD THIS BE THE APPROPRIATE TIME FOR US TO GO IN CAMERA AND DISCUSS THE FINAL QUESTIONNAIRE WHICH IS GOING TO BE HANDED OUT?

 

MR. WALGREN:  MAY WE HAVE ABOUT A FIVE-MINUTE RECESS BEFORE WE DO?

 

THE COURT:   SURE. MR. CHERNOFF, MR. FLANAGAN, MR. GOURJIAN, WE WILL TAKE A SHORT BREAK, THEN WE’LL GO INTO CHAMBERS AND FINALIZE THE QUESTIONNAIRE.

 

MR. CHERNOFF:   SURE.   WHAT TIME, JUDGE?

 

THE COURT:   YOU SAID FIVE MINUTES.   OR DO YOU WANT TEN?

 

MR. WALGREN:   TEN MINUTES.

 

THE COURT:   I FIGURED AS MUCH.   ALL RIGHT.

 

MR. CHERNOFF:   OKAY.

 

THE COURT:   THE BOTTOM LINE IS WILL THERE BE ANY FURTHER IN-COURT PROCEEDINGS TODAY IN THE COURTROOM?

 

MR. WALGREN:   NO, YOUR HONOR.

 

THE COURT:   DO YOU ANTICIPATE —

 

MR. CHERNOFF:   NO.

 

THE COURT:   SO THE PLAN IS FOR US TO CONVENE TOMORROW AT 9:00 A.M.   AS I MENTIONED, TOMORROW IS MY DAY TO GIVE GENERAL ORIENTATION TO THE PROSPECTIVE JURORS ON VARIOUS FLOORS.   IT IS A VERY ROUTINE THING THAT ALL JUDGES THROUGHOUT THE COUNTY OF LOS ANGELES CONDUCT. THAT IS NOT A PUBLIC PROCEEDING IN ANY WAY, SHAPE, OR FORM, HAS NOTHING TO DO WITH THIS CASE. WE WILL CONVENE HERE AT 9:00 A.M. ON THIS CASE WITH DR. MURRAY PRESENT, PLEASE.   COUNSEL AND DR. MURRAY WILL BE ORDERED TO APPEAR AT NINE O’CLOCK.   WE SHOULD BE DISCUSSING SOME MATTERS, IF WE HAVE ANY, AND AT SOME TIME AROUND 9:20 OR 9:30 WHEN WE GET THE CALL FROM JUROR SERVICES, WE WILL RECONVENE IN ONE OF THE JURY ASSEMBLY ROOMS TO BEGIN THE VOIR DIRE PROCESS WHICH IS OPEN TO THE PUBLIC, ALBEIT LIMITED NUMBER OF SEATS, BUT IT IS A PUBLIC PROCEEDING IN A DIFFERENT COURTROOM. COUNSEL HAVE AGREED TO THE PROCEEDING BEING CONDUCTED AS IT WAS THE LAST TIME WITH THE SAME TYPES OF ADMONISHMENTS. IS THAT CORRECT, MR. WALGREN?

 

MR. WALGREN:   YES.

 

THE COURT:   MR. CHERNOFF?

 

MR. CHERNOFF:   IT IS.

 

THE COURT:   WE WILL SEE YOU IN TEN MINUTES. FURTHER PROCEEDINGS IN THIS COURTROOM ARE CONCLUDED FOR TODAY AND WILL RESUME TOMORROW AT 9:00 A.M.   THANK YOU, EVERYBODY.   HAVE A GOOD DAY.

 

 (FURTHER PROCEEDINGS WERE HELD IN CHAMBERS, WERE SEALED BY THE COURT AS CONFIDENTIAL.)