Bodily Harm (36 page)

“Dr. Desmond, let’s start with the autopsy you performed on Austin McFarland.” Sloane took Desmond through the series of questions concluding with Desmond advising that he had located five magnets within the body cavity.

“And are you able to opine, based upon the physical evidence, what impact those magnets had on Austin McFarland in particular?”

“I’m afraid not. By the time the autopsy was performed, the intestines had deteriorated to the point that they offered no real independent source of information.”

Eva McFarland moaned.

“The best I can do is state that the child had five magnets in the area where his intestines would have been and provide an educated hypothesis based upon my findings with respect to Mateo Gallegos.”

Reid stood to object but Sloane headed her off. “We’ll get
there, doctor. Let’s go ahead and discuss your findings with respect to Mateo Gallegos.”

Reid sat.

After walking Desmond through the preliminary questions Sloane considered another multipage document. “Let me hand you what has previously been marked as Exhibit Twenty-seven and ask that you review it.”

Desmond did as instructed, though there was little need, given that he had written the report. He flipped to the last page. “Yes, this is my report.”

“You signed it?”

“Yes, that’s my signature.”

“Would you tell the court your findings?”

“I found that the decedent had also ingested multiple magnets.”

“Can you explain to the court how it would be physically possible for a child to swallow six magnets?”

Desmond displayed the magnets inside of a jar, which Rudolph inspected. “The magnets are very small. A child would have no physical problem ingesting them.”

“So you would not expect a child to display any signs of choking after swallowing one of these magnets?”

“No, I would not. The size of the magnets makes it unlikely the child’s airway would be obstructed, so I would not expect that the child’s complexion or physical response would give a parent any reason to suspect the child had swallowed anything hazardous.”

“So other than actually witnessing a child swallow the magnets, a parent would not have any immediate indication that their child had done so?”

“Unless the child told them, no, they would not. The child would be able to breathe, talk, cry.”

“What happens when these magnets remain in a child’s system?”

Reid stood. “I’m going to object, Your Honor. Dr. Desmond is here to provide a report of his findings with respect to Mateo Gallegos. He has not been disclosed or introduced as an expert witness on the effect of magnets on the body in general.”

“Sustained. Rephrase the question.”

Sloane did.

“In this case, because the child swallowed more than one magnet, the magnets attracted one another while inside the intestines.”

“They just bunched together?”

“No. Because they were likely swallowed at different times, they were in different areas of the intestine and attracted one another through the intestinal walls.”

Sloane had the doctor use a diagram of the intestines to identify where he had located the magnets. Desmond then clenched his hands into fists and pressed the knuckles together. “The magnets are so powerful they attach through the intestine and strangle blood flow to the affected portion. Once the blood supply is cut off, the clock is ticking.”

“What do you mean ‘the clock is ticking’?”

“Without blood supply that particular area of the bowel begins to die. The magnets erode through the intestinal wall, or make the bowel more susceptible to perforating in general.”

“What happens if the intestinal wall is perforated?”

“If the intestinal wall is perforated, bacteria will spill into the abdominal cavity.”

“Deadly bacteria?”

“It can be. It’s essentially like a gunshot or stab wound in that it can result in septic poisoning of the child’s blood supply and carry that poison to other organs.”

“And in this particular instance did you reach a specific conclusion about what occurred with respect to Mateo Gallegos?”

“I concluded that the child died as a result of septic poisoning to his system caused by the factors I just described.”

“And did you find anything further to indicate that the ingestion of these magnets might not have been the cause of death in this instance?”

“No, I’m quite certain they were the cause.”

“Doctor, I noted in your report that you also indicate a puncture wound to the abdomen, is that right?”

“Yes it is.”

“And did you reach any conclusions as to what might have caused that wound?”

“I concluded it was a nail. I’d estimate a sixteen-penny nail, though it isn’t really possible to say so with certainty.”

“For the record, that’s the size of the nail?” Rudolph interjected.

“It is,” Desmond said. “But again, I can’t be certain.”

Sloane would have preferred not to bring up the subject, but he knew if he didn’t, Barclay Reid would. In legal parlance, Sloane was stealing the wind from Reid’s sail, bringing up an unfavorable piece of evidence and allowing his witness to explain it before she could make a bigger deal of it on cross-examination.

“Is there any indication the nail was rusted?”

“There is some indication in the subcutaneous tissue of an infection that could be consistent with the type of infection one might experience from a rusted nail, yes.”

“And in your opinion, is it likely that this perforation could have caused the septic poisoning you believe led to Mateo Gallegos’s illness and ultimately his death?”

“In my opinion it is not likely. Given the presence of the magnets, they represented a far more acute cause of the symptoms leading to death.”

“Now, as a result of your findings with respect to Mateo
Gallegos, Dr. Desmond, did you draw any conclusions with respect to your autopsy of Austin McFarland that you could not have previously drawn based on the available physical evidence?”

“I did. Having reviewed the doctor’s notations in the medical file identifying the symptoms that the McFarland child suffered, and given their remarkable similarity to the symptoms that the Gallegos child presented, as well as, of course, the undeniable presence of the magnets within the McFarland child’s body, it is my educated opinion that the McFarland child died as a result of the ingestion of magnets that resulted in a similar septic reaction caused by perforations to his intestines.”

Sloane checked his notes. Satisfied, he addressed Judge Rudolph. “I have nothing further on direct.”

Reid strode to the podium. “But you don’t know that for certain, do you, doctor. As you’ve just said, that’s a guess.”

“It’s an educated deduction from the evidence.”

“But not the physical evidence as you’ve described with respect to the condition of the McFarland child’s body, correct?”

“Correct.”

“You cannot state with certainty that the magnets caused perforations to the child’s intestines.”

“I cannot.”

“And you could not conclude that the magnets caused any transient bacterial infection that occurred just before death.”

“I could not. The body was too badly decomposed.”

“Doctor, in giving you your assignment, did Mr. Sloane advise you that he obtained a medical malpractice judgment against the doctor who treated Austin McFarland?”

Sloane stood. “Objection, Your Honor, it’s irrelevant.”

“Sustained.”

“Dr. Desmond, did you inspect these magnets that you removed from Austin’s body closely?”

“I did.”

“And did they have any markings on them of any kind?”

“No, they did not.”

“And is the same true with respect to the magnets found in the Gallegos child?”

“That’s correct.”

“Nothing that would indicate to you a serial number or anything of that sort?”

“No, nothing like that.”

“And you are not here to render any conclusions as to the source of these magnets.”

“I don’t have any such knowledge.”

“You don’t really care?”

Sloane stood. “Objection, Your Honor. It’s irrelevant.”

“Sustained.”

“The source of the magnets is not significant to the conclusions you’ve shared here today,” Reid said.

“No, it is not.”

“So you don’t know if the magnets came from a toy, or an electric toothbrush, or any other of a number of household appliances that the child could potentially have gotten hold of. In fact, the magnets might not necessarily have even been in the child’s home. They could have come from school or any number of other locations.”

Sloane stood again. “Objection. Counsel’s testifying at this point, Your Honor. Dr. Desmond has already answered that he doesn’t have such knowledge.”

“Sustained.”

Reid’s strategy was simple. She would not dispute that which was indisputable—that Mateo Gallegos and Austin McFarland had ingested magnets. Instead she would emphasize that which Sloane could not prove, that the magnets had come from a
Metamorphis action figure. Unless Sloane could do that, or otherwise offer a different knockout punch, Judge Rudolph would be hard-pressed to issue an injunction or order that the toy be independently tested.

“Doctor, I’m assuming that if you noted something in your report you considered it significant, is that a fair assessment?”

“Yes, I’d say it is.”

“And you testified that you noted in your report that the Gallegos child appeared to have a puncture wound to his abdomen. So we can assume that you considered that puncture wound to have been significant at the time you performed the autopsy, correct?”

Desmond smiled, recognizing the lawyer’s trap. “Well . . . it was significant in the sense that I noted it.”

“Noted it while attempting to determine the cause of the septic poisoning that you believe killed this child, correct?”

“Yes. I was—”

“And a potential cause of that poisoning was this rusted nail, correct?”

Desmond shook his head, eyes closed, looking almost amused. “It isn’t likely.”

“But it is possible, isn’t it?”

He sighed, resigned. “It’s possible, yes, but—”

“So although you indicated you were quite certain the child’s poisoning came from these magnets of unknown origin, you could not rule out
conclusively
this prior puncture wound, could you?”

“One hundred percent?”

“That would be conclusive, wouldn’t it?”

“I suppose I couldn’t, not one hundred percent.”

Like a magician, Reid produced a nail, holding the head between her thumb and index finger, so that it looked as long as
a spear. Since she had deposed Desmond and had a copy of his report, she knew before the hearing his opinion regarding the size of the nail. “You identified the puncture wound as likely having been caused by a sixteen-penny nail, correct?”

“I said likely. I can’t be certain.”

“I don’t think I’ve pounded a nail in my life, Doctor, except to hang a picture frame, but I suspect you’re familiar enough with nails to correct me if I misrepresent that this is a sixteen-penny nail.” She handed Desmond the nail.

“It appears to be, yes.”

“How deep did the nail penetrate Mateo Gallegos’s body?”

“I don’t recall making that notation on my report.”

She handed him the report. “Please consider it.”

Desmond did. “No. I did not note it.”

“Would the depth of penetration be significant to a conclusion as to whether the nail could have caused a septic-type reaction?”

“In theory it could be, yes.”

“The deeper the penetration, the greater the potential for poisoning?”

“Yes, that’s right.”

“A sixteen-penny nail is three and a half inches.” Reid made it sound like three and a half feet. “And if the nail penetrated up to, say, the head, then it would have penetrated through the subcutaneous tissue to the lining of the stomach, correct?”

“Correct.”

“It could also have punctured the intestine, could it not?”

Desmond hesitated.

“Doctor?”

“I can’t rule it out, no. But again, it isn’t likely.”

“And if it punctured through the tissue to the stomach cavity I would assume that any infection would, remembering my very
brief anatomy class, eventually find its way into the small intestine. Am I correct in that assumption?”

“You are.”

“And the stomach has a rich blood supply, which, if infected, could result in the circulation of that contaminated blood throughout the body.”

“Correct.”

Reid let Judge Rudolph ponder that information for a moment as she flipped through her notes. Then, as if stumbling on her next line of questioning, she asked, “And would whether or not the child had a recent tetanus shot also be significant as to whether the rusted nail could cause an infection?”

“Yes, but—”

“Thank you, doctor. I have nothing further.”

Sloane was on his feet before Judge Rudolph asked if he had any redirect.

“Doctor, it appeared to me that you wanted to explain your last answer before you were cut off. Would you like to do so?”

“Yes, I would. Tetanus shots protect against
clostridium Tetani
, which is a cause of tetanus. It is not usually a cause of sepsis. What I was attempting to explain was that all of the factors counsel mentioned—the nail, the rust, the depth of penetration of the nail, and the date of the deceased’s last tetanus shot—could be of import in theory, but not with respect to the evidence that was before me.”

“And what specific evidence are you referring to?”

Desmond’s voice grew more adamant. “There were six magnets in the child’s intestines,” he said. Sloane thought he might add, “Good God, are you people stupid?” but the doctor refrained. “There is no doubt those magnets had perforated the child’s intestines. It was very clear to me where the septic poisoning had originated.”

Reid declined to recross. There was no need. She had scored what points she could and was abiding by the lawyer’s well-known adage: if you’ve scored a few points on cross-examination be grateful, sit down, and shut up.

The court took its afternoon recess following Dr. Desmond’s testimony. Before leaving the courthouse for lunch Sloane and John Kannin slipped into the men’s room. After making sure they were alone, Kannin said, “She didn’t get any mileage out of the rusted nail with Rudolph. Maybe with a jury, but Rudolph isn’t going to buy it.”