Trial Transcripts

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MR. SMITH:  Your Honor, the Defense calls Dr. George Podgorny.

THE COURT:  Any further evidence for the Defendant?

MR. SMITH:  We do have a further witness, Your Honor.  We have sent for him, and I think he will be here in just a minute.

(Pause.)

(Whereupon, DR. GEORGE PODGORNY was called as a witness, duly sworn, and testified as follows:)

D I R E C T  E X A M I N A T I O N  11:46 a.m.

BY MR. SMITH:
Q  State your name, please, sir?
A  I am George Podgorny, M.D.
Q  Where do you live, Dr. Podgorny?
A  I live in Winston-Salem, North Carolina.
Q  How long have you lived there?
A  Since 1958.
Q  Dr. Podgorny, what is your profession?
A  I am a physician.
Q  How long have you been a physician?
A  Since 1962.
Q  Where did you get your training as a physician, sir?
A  Bowman Gray School of Medicine at Wake Forest University.
Q  Prior to that, what education did you acquire?
A  I have a degree in physiology from Maryville College, Tennessee.
Q  After you completed your work at Bowman Gray University, would you tell the jury what you did?
A  I spent a year doing surgical internship at North Carolina Baptist Hospital.  I followed that with a residency in general and vascular surgery, and then a residency in cardiothoracic surgery.
Q  Are you a member, Dr. Podgorny, of any societies or organizations peculiar to the medical profession?
A  Yes, sir.
Q  What are some of them, sir?
A  American Medical Association, International College of Surgeons, Society for Academic Surgery, American College of Emergency Physicians.
Q  I wonder, sir, in spite of the fact that you have in your modesty asked me not to ask you this question, do you hold any office now?
A  Yes; I do.
Q  What is it, sir?
A  I am President of the American College of Emergency Physicians.
Q  How long have you held that position?
A  About ten months.
Q  Have you published any work in scholarly journals, Dr. Podgorny?
A  Yes, I have.
Q  Could you relate to the jury the information or the kind of materials that you have published?
A  My primary interest in the field of surgery and emergency medicine is in the area of trauma and injuries, particularly injuries to the chest.  My publications in part reflect that interest -- in part, some other areas of medicine.
Q  Would you state whether or not, Dr. Podgorny, one of your special interests is pneumothorax?
A  Yes; it is.
Q  Have you published materials on pneumothorax?
A  Yes; I have published.
Q  Dr. Podgorny, have you qualified to testify in the courts of our state and nation in civil and criminal matters?
A  Yes, sir.
Q  You have indicated that you have three specialties -- I believe you have indicated this -- is one of your specializations -- general surgery?
A  Yes, sir.
Q  Is another specialty cardiovascular, and thoracic surgery?
A  Yes; may I expand on that?
Q  Please do; yes.
A  In this country, one has to qualify first as a general surgeon before training in cardiovascular or thoracic surgery can be undertaken.  So, it was not two parallel specialties; it was one after another.
Q  I believe you have indicated that your third specialty is emergency medicine; is that correct?
A  That is correct.

MR. SMITH:  Your Honor, we can continue but in the interest of time, we will stop the qualification at this point and tender Dr. Podgorny as an expert medical witness, specializing in the field of general surgery, cardiovascular and thoracic surgery, and emergency medicine.  We will tender him to the Government for examination, if they desire to do so.

MR. BLACKBURN:  We desire not to ask any questions.

THE COURT:  Very well.

MR. SMITH:  We will continue our examination.

BY MR. SMITH:
Q  Dr. Podgorny, do you know the Defendant, Dr. MacDonald?
A  I met him last night.
Q  Prior to that time, had you ever seen him, as far as you know?
A  As far as I know, I have not seen him.
Q  Then you are not associated with him at all professionally?
A  No.
Q  Let me ask you a question, please, sir, about one of your specializations.  You have indicated that you specialize in emergency medicine.  Would you tell the jury a little bit about what you mean by "a specialization in emergency medicine"?
A  Emergency medicine is a new specialty within the field of medicine, and it involves a number of physicians who have felt that it is desirable for the delivery of health care to specialize in the areas of emergencies of all types and natures in cases of adult problems, and pediatric problems; and it is essentially a specialty in breadth, taking in all of the emergencies, a variety of types due to injuries, illnesses and emotional problems over a first one or two hours period of the illness or injury.
Q  What is general surgery as distinguished from a specific type?
A  General surgery very basically is the overall field of surgery which is the operative and the manipulative part of practice of medicine.  It is more specifically today medically refers to that area of surgery that deals with the abdomen and the extremities -- arms and legs -- and the skin inasmuch as other specialties and subspecialties have developed such as orthopedics and bones, chest surgery and neurosurgery that deal with either parts of the body or the systems within the body.  So, general surgery is still that overall, general aspect of the surgical care of an individual.
Q  And does general surgery bring you into the study of scar tissue?
A  That is certainly the wounds or, more specifically, if I may, wounds and wound healing is a very important and necessary aspect of the knowledge of general surgery.
Q  Dr. Podgorny, have you examined Jeffrey MacDonald, the Defendant in this case?
A  I have.
Q  And when did you examine him, sir?
A  I examined him late last night for a few minutes in a well-lighted room.
Q  All right, and would you describe that examination -- that is, what you were looking for?
A  Of course, the examination could only be limited to his skin and essentially the skin of his torso -- his chest.
Q  Dr. Podgorny, would you state whether in preparation for your testimony today you have had an opportunity to review the testimony of Drs. Gemma, Bronstein, and Jacobson who have previously testified in this case?
A  Yes; I have.
Q  And have you had an opportunity to review the Article 32 testimony and grand jury testimony of Jeffrey MacDonald?
A  That is the -- yes; I did.
Q  Yes, sir.  Have you had an opportunity to examine certain exhibits that I have provided for you; that is, photographs of the Defendant Jeffrey MacDonald's bpdy?  And I won't hold all of them up for you but I will hold up one or more of them so that you will know for sure that this is the stack of exhibits that you looked at.
A  Yes; you showed them to me this morning.
Q  Yes, sir; and are they Exhibits -- you may not know this, but let me state for the record that the doctor has examined Government Exhibit 1026 through Government Exhibit 1039.  Dr. Podgorny, have you looked at any x-rays?
A  Yes, sir; I have.
Q  Have you reviewed a proposed exhibit that the Defendant would call a body chart?  Have you had an opportunity to look at it?
A  I assume that you are talking about the plastic -- the transparencies.  Yes; I have.
Q  And have you also had an opportunity to look at a torso exhibit that the Defendant will offer?
A  A mannequin-like torso; yes.
Q  Yes.  Have you had an opportunity to take a look at certain hospital records or notations made by physicians which already are introduced into evidence in this case?
A  I have looked at some; yes.
Q  Moving along then, Dr. Podgorny, away from the things that you have examined and into some other material, let me ask you a question concerning head trauma and ask you to state whether or not you can tell the jury basically what causes unconsciousness in a human being.
A  There are several reasons for unconsciousness.  Two of the most common -- one is secondary to an injury to the head, a blow on the head, and the other would be more biochemical related to the lack of sugar in the blood.
Q  Would you state whether or not unconsciousness is always related to any external evidence of trauma?
A  No; it is not.
Q  Would you explain what you mean by that answer?
A  External evidence of trauma on the head relates to what can be seen or felt by fingers over the scalp, the skull, the face, the upper extent of the neck.  None of that as such has any relationship or a causative effect then with unconsciousness.  That is only a reflection of a certain mechanical injury.
     Unconsciousness results from, as best I can put in lay terms, a shaking up of the brain, a movement of the brain, which then temporarily knocks out the portions of the brain that we use for conscious thinking, awareness.
Q  Dr. Podgorny, what is your definition of pnuemothorax?
A  Medically, the definition is presence of air or a gas in the pleural space.  Pleural space is a potential space within each half of the chest that is a real space in an unborn infant and, after the first breath taken by the baby, that space becomes only a potential space because the lung which, until that time was a rather solid-looking small organ, now expands by virtue of the baby taking in the first breath.
     Thereafter, as long as a person is alive and as we breathe almost involuntarily, our lung is almost always in the expansion state, though sometimes it is less expanded when we exhale.  There is a space between the covering of the lung called medically visceral pleura and I know of no lay term for it, and the inner lining of the chest which is called parietal pleura.  One way of trying to visualize it is, if you will take a child's balloon and blow it up not too much so that it is not fully blown and if you will take your fist and will drive it into the side of the balloon to such an extent that the parts of the balloon touching your fist and the other side are close to each other, the fist plays the role of the lung.
     The part of the balloon that is intimately touching your fist is the visceral pleura, and the other side of the balloon is the parietal pleura.  The space between the two is the pleural space.  Air, which is 99 percent of pneumothorax, if due to air rather than some other gas.  If air gets in there, that is called pneumothorax.  "Pneumo" means in the Latin "air," and "thorax" means "chest."
Q  Dr. Podgorny, if we can bring a torso demonstration over and place it on the table, would you be able to use that torso to illustrate your testimony to the jury about the location of the lungs and the other matters that you have described?
A  I think so.

MR. SMITH:  Your Honor, may we bring the torso over, please, and place it on the table?

THE COURT:  Yes, sir.

(Pause.)

MR. SMITH:  I will need to have this marked, please.  For the record, I am marking this exhibit as Defendant exhibit number 71.

(Defendant Exhibit 71 was marked for identification.)

BY MR. SMITH:
Q  Dr. Podgorny, I will ask you, please, if you will come down from the witness stand, and using this model -- this exhibit -- illustrate to the jury your testimony concerning the location of the lung and the other organs that one would find in the chest area?
A  This is a mannequin of nearly natural size of a male human torso.  It is specifically designed so that portions can be removed.  On the left side of the mannequin, this is presumably to give an appearance of the skin and the subcutaneous tissues.
     If you will look here, you can see the yellow surface to represent the fat under the skin.  This is the very top muscle of the chest called pectoralis -- one that you can feel right here if you touch yourself like that.  This has been removed for the purposes of demonstration.
     Now, what you see is the chest wall of the body showing some of the ribs and some of the portions of another muscle which is not relevant in this situation.  Each one of these is a rib.  Once this portion is removed, you can see the configuration of major organs in the chest.  There are some five major organs in the chest.  Of course, one fairly centrally located is the heart and then the two lungs.  If I would take the lung out just for a second, this is basically what I was talking about.  What is covering this lung is a very thin layer of tissue which is called visceral pleura.  There is no, to my knowledge, lay term.
     Now, inside of the chest, and now, we are looking inside the body, all of this is lined by a similar tissue.  That is called parietal pleura.  This tissue is continuous.  It lines the inside of the chest cavity.  It then goes over the lung and wraps itself around the lung.  That is the reason I tried to illustrate or talk to you about a balloon pushing your fist into your balloon.  That space that exists potentially right here where my fingers are now (indicating), that space, if air gets entered into it, it becomes pneumothorax.  Normally, in all of us right now, we are experiencing two types of pressure in our chest.  One is the atmospheric pressure that exists in this room and transfers to our mouth into the windpipe and bronchi down to the lung.  It is whatever the pressure is in Raleigh today.
     The other pressure is one that exists in this space and it is slightly less because there is no way for air to get into here (indicating).  It is 4 to 6 centimeters of water less -- just a little bit less pressure; therefore, if air gets into it, the lung collapses and that is pneumothorax.
Q  Now, Dr. Podgorny, let me ask you to do one other thing if you will, and that is to point out, if you can in the mannequin, the location of any other organs within the chest area?
A  Well, the two lungs are quite similar.  The right one is slightly larger than the left.  The heart is located more or less centrally but a little more of its substance and mass on the left side.  What we cannot readily see behind the heart is an organ called the esophagus or in lay terms gullet -- the swallowing tube -- which is the only part of digestive tract that is located in the chest.
     There is also, if you can see at my finger, it is very faintly visible, it is called trachea or the windpipe which is connected to the Adam's apple and you can feel it with the cartilaginous rings.  These are essentially the main organs within the chest cavity.
Q  All right, Dr. Podgorny, do you know, based upon your reading of the other materials within this case -- that is the testimony of Drs. Gemma, Bronstein, and Jacobson -- do you know the location of any wound on Dr. MacDonald which caused a pneumothorax?
A  Yes, I do.
Q  What was the location if you recall?  That is, if you can describe it.
A  Of course, several physicians placed it at a different location.  Dr. Gemma's description was at the mid-clavicular line and at seventh intercostal space.
Q  Have you read any testimony previously given by Dr. MacDonald as to the location of the injury?
A  Yes.  I think it was also mentioned that it was in the seventh intercostal space at mid-clavicular line.
Q  Have you made an examination of his body for your own purposes so that you could determine the location of the wound which produced a pneumothorax?
A  Yes, I have.
Q  Where did you discover or where did you find that scar to be?
A  A  scar is present on his right chest.  It is roughly at the upper level of the seventh intercostal space.  Intercostal spaces refer to spaces between two ribs.  The seventh intercostal space is the space between the seventh and the eighth rib.  Each space is numbered according to the one above.  The clavicle is the collar bone.  The mid-clavicular line is roughly a line dropped down from the center of the clavicle.  In most males, the nipples will be at approximately that line.  In case of the gentleman in question, his nipples are located somewhat outside of that line.  The scar, though, is at mid-clavicular line.  It is not in line with the nipple.
Q  Dr. Podgorny, if we can furnish for you a more or less life size body chart on the Defendant, could you locate for the jury the position of the wound which caused the pneumothorax?
A  Yes, sir.

MR. SMITH:  Your Honor, we have that exhibit just outside this door.  The Government has had an opportunity to examine it.  We would like to bring it in this door and have Dr. Podgorny do that very quickly if we may.

THE COURT:  Fetch it.

MR. SMITH:  We will fetch it.  I am going to need to label this and mark it for identification.

(Defendant Exhibit 72 was marked for identification.)

BY MR. SMITH:
Q  Dr. Podgorny, I am labeling this entire contraption as Defendant exhibit 72, and I am going to get a marking pen and ask you, if you will, sir, to come over to the exhibit and mark on the body chart, if you will, sir, the position at which you would locate the wound which caused the pneumothorax on Dr. MacDonald's chest?
A  Could I have a ruler?
Q  Yes, I will get you a ruler.
A  I believe that this drawing reasonably represents the body build and size of Dr. MacDonald.  It is probably somewhat shorter than he is.  The drawing also, I believe, sufficiently demonstrates, at least on the right side of the chest, the item that I pointed out earlier in that midclavicular line, this being clavicle, is essentially like this (indicating).  As you can see, the nipple is outside of the mid-clavicular line.
     My examination disclosed a scar that appears to be the scar in question, and that scar is roughly four and a half centimeters or close to one and a half inches below the level of the central nipple -- the very point of the nipple -- and it is approximately one and a half centimeters -- about half an inch -- on the inside.  It would be roughly like this (indicating).
Q  Dr. Podgorny, if you would, please, initial that so that we will all know that you placed the mark on the body.  (Witness complies.)
Q  All right, if you will do one other thing and that is to place a mark on the overlay at the same position -- that is, on the grid over the pastic sheet -- if you will also make a mark, and initial it, please.  (Witness complies.)
Q  All right, you may return to the witness stand, thank you very much.  Dr. Podgorny, do the organs of the body move about some?
A  Yes, they do.
Q  Would you state to the jury what you mean by the statement that they move and how much they move?
A  Most of the organs of the body, and I am referring to those inside the chest and abdomen, move mostly with the change of position of the body, and particularly when the torso is upright versus being recumbent in some manner or form, on back or prone or underside.
     These organs, just to name a few -- spleen, liver, stomach, kidneys -- have a play and they have to move; otherwise the functions will not be possible to continue.
     The other type of movement is related to breathing, and with this inspiration of taking -- inhaling breath in -- the diaphragm which is a thick muscular membrane separating abdomen from chest -- it does move down particularly in males more so than in females.
     And with that, the liver slightly moves, the spleen slightly moves.  Then a person exhales, the diaphragm returns to that upward position and again the organs slightly move up.
Q  Would you describe for the jury if you will the proximity of the liver to the seventh intercostal space, that is the place at which Dr. MacDonald experienced a penetration?
A  The diaphragm that I have mentioned which is a muscular membrane that separates abdomen from the chest -- its right path is approximately one intercostal space higher than on the left side.
     The reason is that a large organ, namely liver, is underneath it -- occupies a space -- and needs that diaphragm to be higher.
     Therefore, in most males the liver is at the level of anywhere from the eighth to possibly sixth intercostal space.
     Please keep in mind that the diaphragm and the liver are not horizontal, flat plane.  They are a dome-structured, rounded type of an object, and therefore one portion of it is higher than the other.
     Therefore, the liver is at the level of the seventh intercostal space on the right side of most males in some of its portions, not in its entirety.
Q  Dr. Podgorny, are you able to tell the jury the normal depth of the liver within the chest, that is from the surface of the skin to the liver.  Is there any way that we can know that?
A  Yes, I will have to be careful and specific in which plane I am discussing this.
     If I may, to reiterate what I just said, keeping in mind that the liver is not a flat surface like this, but rounded.  This rounded part is under the diaphragm and could be anywhere from -- in inches -- anywhere from three to five inches away or behind the anterior chest wall at that location.
     Now, if you move them where the ribs, so to say, end -- where you can feel your ribs while standing or leaning forward -- the liver will be completely against the chest and abdominal wall.  There will be hardly anything in between.
Q  All right, now, if I may ask you some questions more related to the pneumothorax experienced by Dr. MacDonald, I believe you have indicated that you did look at some x-rays?
A  I have.
Q  Based upon your examination of the x-rays of Dr. MacDonald, do you have an opinion as to the percentage of pneumothorax he experienced?
A  I do.
Q  And what is your opinion, sir?
A  Based on the x-rays that you showed to me to have been his x-rays, and based on the first x-ray chronologically that was obtained, at that time he had at least 40 percent pneumothorax.
Q  All right, now, what is meant by the term "subcutaneous emphysema"?
A  Subcutaneous emphysema is a condition when air bubbles find their way into the tissues underneath the skin and propagate depending upon the amount of pressure behind the air that is there.
Q  What is meant by the term "atelectasis"?
A  Atelectasis refers to a condition when a viable, expanded lung collapses on itself mechanically, removing air from many small air sacs that are the smallest unit of the lung, and takes on a liver-like appearance.
     Those people who may have dressed animals may be aware of this -- and it loses its crepitance -- its inflatability.  Therefore it becomes kind of smudged.
Q  Now, if a person experienced subcutaneous emphysema, would that be considered a more dangerous situation?
A  Yes, I would like to explain.
Q  Please do.
A  Subcutaneous emphysema alone or by itself -- the presence of air bubbles in the tissues under the skin -- is of no consequence; that is, that condition per se will not make things any better or worse or anything else.
     The significance is that there is a continuous source of air leaking into the chest under a degree of pressure that permits it to dissect the planes of tissues under the skin.
     So the significance of it is really prognostic for the medical personnel, realizing that there is a danger of a pressure behind the air.
Q  Based on your examination of the x-rays, do you have an opinion as to whether Dr. MacDonald experienced subcutaneous emphysema?
A  Yes; the x-rays show subcutaneous emphysema.
Q  Based on your examination of the x-rays, do you have an opinion as to whether Dr. MacDonald experienced atelectasis?
A  Yes; based on the x-rays you have shown me there is evidence of atelectasis in the right lower portion of the -- in the lower portion of the right lung.
Q  And what significance would be given that by a physician?
A  Now, atelectasis, unlike subcutaneous emphysema, has both significance by itself and prognostically.
     By itself it reduces the oxygenation, because the portion of the lung involved in atelectasis does not have the expandibility, cannot take air, cannot exchange the oxygen.
     It also causes rise in temperature, which is not a desirable effect.  Plus, of course, it does mean that for some reason there is atelectasis and it is of prognostic importance, that a physician must strive to relieve the causes of atelectasis.
Q  Would those terms relate in any way to the term "tension pneumothorax" which we have talked about in the courtroom from time to time during this trial?
A  Yes; I would like to explain.
Q  In what way would they relate, sir?
A  First, in regard to the subcutaneous emphysema, the subcutaneous emphysema is usually secondary to leakage of air from the substance of the lung.  There are potentially two ways that a pneumothorax may result.
     As I tried to explain, that space between the chest wall and the lung, air may enter from outside through an opening made in the chest wall or air can enter from the inside through a damage in the lung itself leaking air.
     If air has entered from outside at the time that an opening in the chest wall was made, unless that opening is being held open, there will be a limited amount of air present and, of course, no more can come in, and the likelihood of subcutaneous emphysema -- air in the tissues -- will be very unlikely.
     However, if the lung itself is damaged and air is leaking through that cut or hole or damage in the lung, that air will come in every time a person is taking a breath.  Therefore, that air can get into the tissues and dissect, as is the case according to the x-rays shown to me, and this would signify that if this air is not promptly removed and will continue building itself up, it will take a shape of a balloon.
     The chest cannot balloon.  It is rigid.  Therefore, the mid-portion will have to shift away and that condition is called tension pneumothorax, "tension" referring to a pressure of air inside the chest.
Q  Does the size of the wound have any relationship to the condition of pneumothorax?
A  No; the size of the wound per se -- pneumothorax is one of two exceptional problems in the body where the size of the wound does not have a great relationship because the problem on hand is not bleeding or the damage to structures or organs -- the problem on hand is simply the presence of air within the cavity.
Q  Dr. Podgorny, there is no way that you can say with any degree of reasonable medical certainty how deep Dr. MacDonald's wound was; is that correct -- that is, the maximum depth?
A  The maximum I could not.
Q  Could you say anything about the minimum depth?
A  Yes.
Q  What would, in your opinion, the minimum depth be that it required to penetrate Dr. MacDonald's lung and cause a pneumothorax?
A  Since, according to the x-rays shown to me, there is a presence of subcutaneous emphysema and therefore there must be an injury to the lung substance itself -- then we know for sure that the penetration must go through the entire thickness of the chest wall and enter the lung.
     The chest wall is of different thicknesses, depending on the body weight and body build.  I would say in a man, and I would assume since seeing Dr. MacDonald last night that he has maintained a similar body configuration at the time of the injury as it is now, that at least had to have penetrated more than an inch to go through the entire thickness and have an opportunity to enter a lung.
     So, anywhere about an inch and a half would be necessary to get it.  As far as how much deeper, there is no way I can tell you.
Q  Dr. Podgorny, if I provided you with a few of the x-rays, could you very quickly use those x-rays to illustrate your testimony to the jury concerning what you observed about the pneumothorax experienced by Dr. MacDonald?
A  I will try.
Q  All right, sir.

(Counsel confer.)

BY MR. SMITH:
Q  Dr. Podgnorny, I hand you five items marked for identification.  The first one is marked for identification as Defendant Exhibit Number 73, and if you will stand over to the side so they can see.  There is a pointer right behind you.
A  I have a pointer.  This is an upright chest x-ray which has been provided by the counsel.  It is dated the 16th of February, '70, and has on it "Womack Army Hospital."  That is an identifying mark to orient you.
     The x-ray is just as a person is facing you, so a person's right side is here and to the left side, this is the outline of the heart.  I hope I can demonstrate to you if you will first concentrate on a person's left side.  You see some spotting and little lines called lung markings.
     These are produced on the x-ray because of the expanded lung and the blood vessels full of blood in the lung.  Now, if you look on the person's right side, in the lower portion of the lung, you will see the similar markings not unlike here, but in the upper portion around here, you do not see anything, and it is darker.
     The reason it is darker is because the lung is not there any more.  It has collapsed and the x-rays have less to penetrate and, since an x-ray is a negative in terms of photography, it gets darker.  So, this dark area represents the air that has collected here, and this is what is medically called pneumothorax.
Q  Let me hand you here, Defendant Exhibit Number 74 and ask you if you can use it to illustrate your testimony.

(Government Exhibit Nos. 73 and 74 were marked for identification.)

A  This likewise says Womack and the date.  It says "Admission."  This is the second of the series obtained.  It has a slight advantage in that overall penetration -- overall amount of energy that the x-ray machine that they were using has been reduced after they realized that there may be a little too much here.
     So this, I think, illustrates: one, what I just mentioned -- that this area is devoid of markings.  This is pneumothorax, and this is an earliest indication that the lower side -- lower part of the right lung -- in this area had these increased markings which is probably the very earliest onset of the condition atelectasis that earlier was asked of me.
     You see, which probably for you from that distance is difficult -- you see some dark area right around here.  This is the beginning of subcutaneous emphysema -- air in the tissues -- that I have alluded earlier.
Q  All right, Defendant Exhibit Number 75, Dr. Podgorny, if you will use it to illustrate your testimony.

(Defendant Exhibit 75 was marked for identification.)

A  This is an x-ray marked "portable" which means that instead of taking the patient to the X-Ray Department, they have brought a small portable machine to the bedside.  These x-rays lack in clarity because the machine is not as sophisticated.  I think that this may, even for that reason, coincidentally, show better the total lack of lung markings here which is the pneumothorax and presence of subcutaneous emphysema at a somewhat early atelectasis on the right side.
Q  All right, there are two others.  If you can use these -- perhaps, you can use them together to complete the illustration of your testimony.
A  This is the sequence. It is only clear because of the presence of an additional item.  Again, you remember, as we discussed the chest film, now, you see here what probably you can see as a line like this (indicating).  You can see its opposite end like this (indicating) and this is the shadow of the chest tube -- a plastic tube that has been inserted into the chest for removal of air and/or blood or whatever else is present.  This is because they use a different technique.  A  small machine even better illustrates all of this or air bubbles.  This is a large conglomeration.  These are some smaller air bubbles.  As air is dissecting, atelectasis is, of course, more obvious.  On this particular film, probably there is even more air than was on the previous films.
     I assume -- I guess I should not say "assume," but some time went by before this film was obtained because you have to prepare insertion of the chest tube, go through the insertion, and then get an x-ray.  So, this amount of pneumothorax is more than it was before and reflects the fact that more air has been coming in through the opening in the lung.
Q  Do you have an opinion as to the percentage of that pneumothorax?
A  That is at least 50 percent or more, because as you can see, over half of the lung field is devoid of markings.  This is an x-ray.  This is dated the 21st of February.  The chest tube is not here anymore; therefore, this has been taken after the chest tube has been removed.
     As you look, you now see the lung markings all the way out here except in the very upper portion.  This is quite common that just a little air still hangs on.  This will be restored -- well, you can see on this side this type of a marking and this type of a line which is typical of atelectasis which is the condition we have discussed.
Q  Dr. Podgorny, there are two last x-rays I would like to hand you and ask you if you can use these to illustrate your testimony?
A  One of these x-rays will be somewhat familiar as being a chest film looking at it.  Now, the other one is called a lateral chest.  It is the chest taken from the side -- kind of a profile of the chest.  The metal object that you see the shadow here and here (indicating) is obviously a paperclip.  This is roughly in the level of mid-clavicular line overlying the area of the scar that we have discussed previously.  This x-ray in both projections shows the proximity of the level that the liver may be because the liver is right here like this (indicating) and here in this projection.  So, that level that was the question that was asked previously does overlie the presence of the liver.

MR. SMITH:  All right, you may return to the witness stand.  Thank you very much, Dr. Podgorny.

(Defendant Exhibits 76, 77, 78, 79, and 73 were marked for identification.

BY MR. SMITH:
Q  Now, Dr. Podgorny, I would like to ask you to do one other thing, if I may, before I will ask you three or four concluding hypothetical questions.  I would like to ask you to return, please, to the body chart that we have had identified, and if you will, sir, by moving the second, that is the body chart, the second sheet back, and using the overlay, would you point out to the jury the position of the seventh space that you have described that is on the ribs  -- the seventh intercostal space?
A  One, two, three, four, five, six, seven -- right about here (indicating).  At the upper area of the seventh space is the corresponding level to the scar that was explained and drawn on the body.
Q  All right, now, if you will, sir, permit me to move the ribs across so that they are not in the way.  Would you please point out to the jury now the location of the liver and its proximity to the location of the wound you have described?
A  As I mentioned a couple of moments ago, the liver -- and you are looking at it from the front -- the major portion of the liver, the right lobe is right underneath the right diaphragm and a little portion goes on the left.  This is the portion that protrudes higher than the left.  Here is the level of the scar (indicating).
Q  Now, for the record, Dr. Podgorny, would it be correct to say that you have located the wound in Dr. MacDonald's body on the grid as block I-5?
A  Yes.

MR. SMITH:  All right, you may return to the witness stand.  Thank you, sir.

BY MR. SMITH:
Q  Dr. Podgorny, assuming that the jury should find from the evidence and beyond a reasonable doubt that the Defendant suffered a penetrating stab wound in his right chest area at the seventh intercostal space, mid-clavicular, which produced a 40 percent pneumothorax and required insertion at separate times of number 36 and number 34 Argyle chest tubes, do you have an opinion based upon reasonable medical certainty as to whether such injury could or might be life-threatening?
A  Yes, I do.
Q  What is your opinion, sir?
A  That under the circumstances that you have just enumerated, such an injury could be life-threatening.
Q  Dr. Podgorny, assuming that the jury should find from the evidence and beyond a reasonable doubt that the Defendant was injured on the 17th of February, 1970; and that his injuries consisted of: a stab wound in the left biceps, three puncture wounds in the left biceps, a penetrating stab wound on the right chest, seventh intercostal space, mid-clavicular line, a "Y"-shaped wound on the left upper quadrant of the abdomen, a series of puncture wounds across the abdomen, small cuts in the web of his hand -- do you have an opinion based upon reasonable medical certainty as to whether in August, 1974, the scars produced by such wounds could or might be as depicted in the Government exhibits which you have indicated you examined prior to taking the witness stand in this case -- that is exhibits 1026 to 1039?
A  Could you repeat the last sentence?
Q  Yes, sir; I could.  What I am asking you, sir, is: do you have an opinion satisfactory to yourself based upon reasonable medical certainty as to whether if Dr. MacDonald did experience those wounds I described on February 17, 1970, do you have an opinion as to whether the scars could or might be as photographed in 1974, in August?
A  Yes, I do.
Q  And what is your opinion, sir?
A  That these photographs are very likely as an expected picture of approximately four years time after the injury.
Q  Could you amplify just a moment, Dr. Podgorny, on what happens to a scar?
A  A  scar is the result of discontinuation of the skin.  The skin, particularly in a human, is obviously the outside shell that contains everything else; and unfortunately for the human, is the only part of the body that does have a reasonable ability to heal itself.
     In some animals there is a much greater availability of this healing and regeneration.  However, skin can never completely and primarily heal itself without absolutely no scar.  What happens -- a certain tissue called collagen tissue is deposited in the scar and approximately five days after the injury -- providing there is no tension on the two ends of the wound and no infection -- a bridge is constructed.
     Over a period of four to six weeks this tissue hardens and becomes so-called fibrous tissue.  It is rather tough.  By then, the scar is fairly strong, and that is why individuals who had large cuts or surgery in six to eight weeks can return pretty well to activity.
     That scar undergoes numerous changes, becomes even somewhat more prominent probably for a period of four to six months after injury.  Thereafter, a maturation process -- the medical term -- occurs, and somewhere between six months or eight months to a year after the injury, scar is called mature, in that it will not get any larger than it is.
     And then with the -- time goes by -- this scar becomes less and less noticeable.  There are many, many elements in it -- nutrition, good health, semi-dry skin.  People who have an oily skin will not heal as well.  People who have very dry skin will have problems.
     Sunning, getting a sun tan every summer, contributes to this healing.  Therefore, over a period of years -- the longer you go -- the less noticeable the scar is.
Q  Dr. Podgorny, is there any way, sir, that you can render an opinion based on reasonable medical certainty as to whether Dr. MacDonald's wounds were self-inflicted or whether they were caused by an attack?
A  No, I cannot.

MR. SMITH:  You may examine.


C R O S S - E X A M I N A T I O N  12:44 p.m.

BY MR. BLACKBURN:
Q  Dr. Podgorny, where were you in 1970 in February, sir?
A  In Winston-Salem.
Q  Let me hand you Government Exhibit 1149 -- I have taken one out of the package -- and ask you if you can tell me, sir, what that is?
A  Yes, sir; this is a stainless surgical steel disposable scalpel tip.  This is probably number 11 type.  Yes, there is a cover here, one that shows it is number 15, which is a different type.  This is a standard, usual scalpel tip, used in medical, surgical practice.
Q  With respect to the injury to the Defendant that caused the pneumothorax, could that scalpel -- or could a scalpel -- render such an injury?
A  Can I explain?
Q  Yes, sir.

THE COURT:  Just say yes or no, and then explain.

THE WITNESS:  I would say no.

BY MR. BLACKBURN:
Q  Would you explain?
A  And explain.  This tip fits over a plastic or metal handle that is not disposable.  The purpose of this is that the same blade not be used in two people -- danger of infection, et cetera.
     So the blades are disposed after a single use.  The handle, which is more substantial and expensive, is not.  Handle has a portion that corresponds to this opening of the tip, and this fits on so that only this much of the scalpel protrudes behind that handle.
     In order for this to penetrate that deep, at least a portion of the handle will have also to go in; so I say no, Judge, judging from the length of this, unless this was attached to some other instrument that I have no knowledge of.
Q  Well, suppose it wasn't attached to any instrument at all; suppose it wasn't attached to a handle?
A  So that it was used as it is?
Q  Yes.
A  If I am not mistaken, it is about four centimeters long in its, you know, greatest length; and considering that one will have to grab it to some extent, I think there may be some two-and-a-half centimeters available.
     If it penetrates in the axis of this device -- in the axis of the blade -- the tip of the blade is certainly too small to do much to the lung, because it is no bigger than the needles that are used for lung biopsy for removal of a portion of the lung.
Q  Well, now, let me ask you this question: is there any type of scalpel that you know of that could have caused an injury such as the Defendant received that caused the pneumothorax?
A  There are numerous types of scalpels.  There are some currently used that are exactly of the configuration you have shown.  There are some that are a solid one-piece instrument -- has no detachable areas.  They come in every conceivable shape.
Q  Excuse me, I don't mean to interrupt.  Let me ask this question, first; then you may continue to explain it.  What would your answer be, yes or no, as to whether you know of any scalpel that could have caused it?
A  Yes.
Q  Now, if you want to complete your answer feel free to do so.
A  All kinds of scalpels -- I hate to belabor -- I will be glad to if you want me to -- so many.
Q  I think that is sufficient.  You stated that the first time you examined Dr. MacDonald was last night?
A  Correct.
Q  What portion of his body above his chest, sir, did you examine?
A  He took his shirt off, so I examined his torso, his body, above the beltline.
Q  Did you look at his arms or wrists or hands?
A  Very briefly.  I mostly examined his chest.
Q  How about his back?
A  Yes, I have looked at his back.
Q  Did you see any scats on his back?
A  Nothing significant.
Q  What scars if any did you see on his arms or hands or wrists?
A  Very few small scars.  One is on his left and midarm biceps area; a few other what I call nondescript scars on the body -- just little evidences of previous injury.
Q  Now, I believe you stated in response to a hypothetical from Mr. Smith, that under certain circumstances, assuming certain facts, a pneumothorax could be a potentially fatal injury, is that correct?
A  Yes, sir.
Q  What is a tension pneumothorax?
A  A  tension pneumothorax is increasing amounts of air collecting in the pleural space without an escape route; and therefore, depending how fast an individual is breathing and how large is the opening for the air to get in, this air accumulates, presses the middle of the chest, called mediastinum, to the opposite side, embarrasses respiration, kinks a major vein that brings the blood back from the lower side of the body.  And the combination of these events cause death.
Q  Isn't it true that a tension pneumothorax is much more serious than just a regular pneumothorax?
A  Yes, it is.
Q  Now, did you read the medical records of Dr. MacDonald?
A  Yes, I have.
Q  Do you know whether he ever received a tension pneumothorax?
A  Not that I can see.
Q  I believe you know when you testified that he had chest tubes inserted into his body, I believe?
A  Two of them, I believe; yes.
Q  What is the purpose of inserting a chest tube?
A  The purpose is to provide a route for escape and removal of either air and/or blood or possibly some other liquid in the chest.
Q  Well, now, assuming that a person has a pneumothorax, and I assume you would say that the insertion of the chest tube is proper medical treatment; is that correct?
A  Yes, sir.
Q  For a pneumothorax?
A  Very proper.
Q  If a chest tube is inserted into an individual who has a pneumothorax and the chest tube works properly or as it should, what are the chances, sir, that that person would receive a tension pneumothorax?
A  Very negligible as long as the chest tube is functioning and removing the air.
Q  In your experience in Winston-Salem with the hospital there, have you had an occasion to see very many individuals who have suffered a pneumothorax?
A  Yes, sir; I have.
Q  Would you say that you have seen more than 100?
A  Oh, yes.
Q  Over what period of time?  I know that is a difficult question.
A  Let's say roughly from 1960 on.
Q  How would you classify it?  Is it an abnormal injury?  By "abnormal," I mean uncommon.
A  It is not uncommon, but it is not a common injury.  May I elaborate?
Q  Yes, sir.
A  Just to give an example, it is less common than the fracture of the forearm.  It is more common than serious injury to the eye.
Q  Assuming that a person receives a blow to the chest, which, in effect, causes a pneumothorax -- nothing more, just a pneumothorax -- and further assume that he is to receive proper medical treatment within say a period of one to two hours, would that substantially increase his chances for survivability?
A  I think I missed an important item.  Would you mind repeating?
Q  What I am getting at is this: if a person gets a pneumothorax, an injury to the chest that causes a collapse of the lung; and assuming that he has two lungs -- not just one -- and he receives proper medical treatment within a relatively brief period of time, say, one to two hours -- what are his chances of survival, if you know?
A  I do.  I will have to make a little elaboration.
Q  Let me ask you this question first before you elaborate.  Does he have a reasonable chance of survival in your opinion?
A  Yes.
Q  Okay, now, you may feel free to elaborate.
A  The reason I was hesitant -- you had introduced, which I believe, specifically, a very important factor.  You have said one or two hours, so if that is what you meant, that is a very important element because an individual who has survived a pneumothorax without any unusual medical care for one or two hours probably has a simple pneumothorax.  One who has had a tension pneumothorax would be dead by then.
Q  Is it fair to say that any injury to say the upper chest, either the left or the right side, with a sharp instrument such as a knife or an ice pick or a scapel is potentially life-threatening?
A  Yes, sir.
Q  Which of the two sides is perhaps the more serious side assuming that all of your internal organs are in their proper location?
A  Statistically, the left side.
Q  The left side is what?
A  More serious to be injured than the right side.
Q  I believe you testified on Direct Examination that the liver was three to five inches inside; is that correct?
A  In size?
Q  Inside.
A  I am sorry, yes.
Q  An instrument going in would have to penetrate at least that far more than likely to hit the liver in a normal person; is that correct?
A  Depending at what level the instrument will penetrate.
Q  All right, now, you testified on Direct Examination as to the location of certain internal organs.  Does that location stay the same, or does it change depending on the position the person is in?  I will be more specific in a moment.
A  The answer is "yes," it will change.
Q  All right, if a person is laying down, for example, where is the liver located with respect to the seventh intercostal space?
A  The level will not change as much; however, the distance between liver and anterior body wall will be somewhat greater because the liver has a mass and a weight so gravity --
Q  (Interposing)  It sort of drops down?
A  Kind of drops down.
Q  Would it be greater than three to five inches, then, if you were laying down?
A  At that level, certainly not five inches.  It probably will be about two and a half to three inches.
Q  Okay, suppose you were in a sitting position -- how much does the liver weigh, if you know?
A  In a normal male, about four or five pounds.
Q  Okay, in a sitting position say like we are, where would the location of the liver be with respect to the seventh intercostal space?
A  The upper portion or the upper edge of the liver will be right at the level of about the seventh rib, so the seventh interspace will be right looking straight at the upper portion of the liver, and since we are sitting like this, I would say on kind of a 90-degree angle, it will be fairly close to the anterior chest wall.  If someone leans forward like the doctor wants the patient to do during an examination, then that liver is closest possible to the anterior body wall.
Q  Now, suppose, that you are not doing like the doctor wants and you are standing up like this (indicating), where would the liver be with respect to the seventh intercostal space?
A  I think at the level of the liver, it will move in an up and down motion probably no more than a third of an inch.
Q  Okay, suppose you stand up and breathe in.  Would that make any difference?
A  Yes.  It probably will move it up and down half an inch.
Q  So, in other words, the liver can move around depending on your location?
A  Yes.
Q  Can you control where the liver moves or doesn't move?
A  Not scientifically.
Q  Only by changing position; is that correct?
A  By changing position somewhat, yes.
Q  Dr. Podgorny, in your study of the pneumothorax, do you know, sir, whether a pneumothorax was ever considered proper treatment for tuberculosis?
A  Certainly, yes.
Q  When was that if you know?
A  It persisted into certainly late forties and maybe even early fifties and it stopped when appropriate antibiotics were discovered and developed.

MR. SMITH:  Your Honor, may we approach the Bench very quickly concerning this witness?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. SMITH:  I don't want to rush at all.  I hurried as fast as I could because this man has got a very important medical meeting that he has got to preside at or something.  He needs to leave at 2:00.  I thought if the questions were not going to be too much longer --

THE COURT:  (Interposing)  How much more time have you got?

MR. BLACKBURN:  Ten or 15 minutes.

THE COURT:  I would like to accommodate him, Wade, but I just hesitate to keep the jury here that much longer.  I am sorry.  You know, if it were only four or five minutes.

(Bench Conference terminated.)


THE COURT:  Members of the jury, we will take our lunch recess now.  We will come back at our usual hour of 2:30.  Don't talk about the case.  We will reconvene at 2:30, please.

(The proceeding was recessed at 1:01 p.m., to reconvene at 2:30 p.m., this same day.)


F U R T H E R  P R O C E E D I N G S  2:30 p.m.

(The following proceedings were held in the presence of the jury and alternates)

THE COURT:  Good afternoon, ladies and gentlemen.

(Whereupon, DR. GEORGE PODGORNY, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


C R O S S - E X A M I N A T I O N  (resumed)

BY MR. BLACKBURN:
Q  Dr. Podgorny, I think just before the break we were discussing, as I recall, the treatment of using pneumothorax as a treatment for tuberculosis; do you recall that?
A  (Witness nods affirmatively.)
Q  Now, you were talking this morning and I cannot pronounce this correctly I'm sure -- atelectasis -- is that what it is?
A  Very good.
Q  Thank you.  Now, what is atelectasis again?
A  Atelectasis is a condition where a viable lung or a portion of the lung coalesces and I call it smudges or presses together.  Therefore, the alveoli; or air sacs in that part of the lung are devoid of air, collapsed together, are unable to provide oxygenation of the blood as it is brought there.
Q  Does that occur whenever you have a pneumothorax?
A  It is one of the problems associated with it.  It also occurs with other conditions.
Q  Sure, but what I am saying is, if you have a pneumothorax does that occur?
A  Always, no.
Q  In a majority of cases?
A  Probably in over half.
Q  Would you say then that during the time a pneumothorax was considered as a treatment for tuberculosis, then atelectasis would be an accepted complication during that treatment?
A  Not only that -- in that methodology atelectasis was the desired end result.
Q  Would it be a fair statement to say that a pneumothorax -- not a tension pneumothorax -- but a pneumothorax itself is a treatable injury?
A  Yes.
Q  And I believe that you testified this morning that a small hole into the body area can in fact cause a pneumothorax; is that correct?
A  Yes.
Q  And I believe you also stated that you were unable to say yes or no to Mr. Smith's question concerning possible self-infliction of such an injury; is that correct?
A  You are correct.
Q  Now, with respect to your model -- if you could come down here just a second -- if you would, sir, point out on the model where the liver is located?
A  This is upper edge, the right lobe or the right half, or its larger half, and the left half with a little ridge in between.
Q  Okay, now, I believe what you have marked here on this grid shows part of the liver underneath; is that correct?
A  Yes.

MR. BLACKBURN:  You may resume your seat.

BY MR. BLACKBURN:
Q  If you assume, Dr. Podgorny, that at the time -- well, first of all, you don't know the depth of the injury or the depth of the wound to Dr. MacDonald I don't guess; do you?
A  I have spoken to what it minimally should have been --
Q  (Interposing)  I think you thought about one and a half inches.
A  -- that would -- about two inches in order to penetrate the lung.  That is the only element that I testified to.
Q  And I think you said on both direct and cross that the liver was perhaps three to five inches below that.
A  Correct.
Q  If you would assume that at the time the injury was inflicted on Dr. MacDonald that the liver was as you have placed it on that chart and someone had something like an ice pick and was doing like that or poking or however they were poking; and further assume that they didn't hit a rib or anything like that -- what inside the body would prevent, if you know, sir, the liver from being struck or punctured?
A  One, of course, is providing what you have just explained is occurring at the level that the liver is present.  If the liver is present at that level, its protection will be the diaphragm which is a muscular, tendinous -- about that thick -- that invests the liver and separates the chest from the abdomen.  That would be beyond the chest wall, of course.
Q  And before you hit the liver?
A  Correct.
Q  Now, is it fair to say then that if the liver is as you have described it on that chart at the time that Dr. MacDonald suffered that particular injury, in that it would be in line with the injury causing the pneumothorax -- is it fair to assume then that the injury to Dr. MacDonald did not penetrate three to five inches?
A  I really do not know how to say yes or no because I will need to explain.
Q  Well, I understand that.  Can you say yes or no and then explain?
A  Could you maybe repeat the salient?  I lost, you know, the "b" after "a."
Q  Assume, if you would, that Dr. MacDonald suffers an injury to his right chest area which causes a pneumothorax at the place -- the seventh intercostal space -- located here.
     Further assume that regardless of what position Dr. MacDonald is in when that injury is inflicted, that the liver is as you have described it?  Or assume that at least some of the wound is in the direct plane underneath the area in which the incision was entered?  Did you follow so far?
A  So far.
Q  Assuming all that now, is it a fair statement to say -- since the liver is three to five inches underneath that area, as by your own testimony -- is it fair to say then that the injury to Dr. MacDonald did not penetrate three to five inches?
A  My answer will be yes and I will elaborate.
Q  That's fine.  Please go ahead.
A  There are three elements there, sir, that are very crucial to this question you have asked.  One element that I hope has not been my lack of ability to explain has to do with whether the liver is under.
     I think the problem is a matter of language and semantics.  If you are standing up,the liver is behind the chest wall.  If you are lying down on your back, the liver is underneath the chest wall.  Its relationship, spatially, has not changed but linguistically we have no choice but to call it "beneath" because it is indeed beneath the skin.  But when you stand up I have no choice but to say it is behind because it is in that relationship, though it is the liver and here is the anterior chest wall.
     So I just wanted to clarify the wording that I use.  The second important element is, I hope I did not say -- because I did not mean to say -- when I described that particular exhibit, that the liver is in line of penetration, because I do not know the plane of penetration.
Q  Certainly.
A  All I implied was that anatomically the liver is in that position behind the location of the skull.  I do not know, and no one has asked me this, what was the direction of penetration.
Q  Did you have an occasion in preparation for your testimony here today to examine -- I think you did, on direct, say that you reviewed Dr. MacDonald's medical records, is that correct?
A  I have reviewed an amount of records that were hospital records; and I have reviewed material that is what Dr. MacDonald testified -- I think it is called Article --
Q  (Interposing)  32.
A  32, sorry.  So I cannot say I have read everything, but I have read a good bit of it.
Q  Well, in reading a good bit of it did you discover whether or not Dr. MacDonald ever had an injury to his liver to your knowledge?
A  No.  I have nowhere seen anything said by anyone that I can recall that he had a liver injury.
Q  Now, when you -- and I believe you testified on Direct to your qualifications as an expert that you are an Emergency Room physician primarily; is that correct?
A  Correct.
Q  And I believe you also testified that in treating a pneumothorax, a chest tube is proper medical treatment?
A  Correct.
Q  Have you ever put a chest tube into anybody for a pneumothorax?
A  Yes, sir.
Q  How do you do that?  Do you make an incision in order to do that?
A  Would you want me to explain briefly?
Q  Yes, sir.
A  Once the location is decided upon by the physician -- the place -- a small amount of local anesthetic medication such as Novocain like used by dentists is injected.  A small cut is made in the skin -- approximately one-half inch -- along the fold lines of the skin for better healing later on.
     This incision is carried through the muscles and over to the layer that I discussed earlier called pleura.  An opening is made in that layer and a hollow cylindrical tube -- earlier in testimony, Mr. Smith alluded to an Argyle tube or Argyle tube which is just a brand name -- there are some different types -- is inserted into the pleural cavity forcefully through the opening.
     Once it is inserted, some means of anchoring are used such as suture or tape.  Then, the end of the tube that is protruding to the outside of the body is connected to a series of bottles where air is eventually trapped under water.
Q  Now, in inserting a chest tube into a person, I think you said you penetrate a half an inch, is that correct, in making the incision?
A  The incision itself is about half an inch long.
Q  It penetrates the chest wall; is that correct?
A  All the way; yes.
Q  In doing this as an Emergency Room physician, I assume it is fair to say that you can control, can you not, the extent to which whatever instrument you use to make the incision is placed into the body; is that correct?
A  Yes.  The incision is made only in skin and muscle fashion.  Then, an instrument called a hemostat which is something like forceps that have a locking mechanism is used to push through muscles which is now soft -- reasonably soft -- and through the pleura in order to avoid entry of the sharp object beyond the pleura where the lung may be.
Q  So, you can make it not go any further in than you want it to go?
A  Correct.
Q  Now, I notice that you said a few moments ago that with respect to the injury that Dr. MacDonald received, you had no idea as to the plane of whatever weapon it was that caused that; is that correct?
A  As to the angle of penetration.
Q  Well, let me ask you this question: in your opinion, could it have entered at a 45-degree angle, say, going up?
A  Conceivable.  Not knowing -- may I?
Q  Yes, sir.
A  I think the major problem that I have -- and I assume any person in my position would be -- I have no idea: (a) position of the body at the time of penetration; two, the position of the individual who is doing the penetration; and three, the plane, if you prefer to use that, or direction that the object is taking while penetrating.
Q  Well, let me ask you this question: if it is going in, just hypothetically, of course, assume that the instrument causing the injury goes in up at a 45-degree angle, does that increase or decrease, in your opinion, the possibility of injury to the liver?
A  It decreases the possibility of injury to the liver.
Q  Now, with respect to scar tissue, I think you testified on direct examination -- and again I am not sure I got all this correctly -- but did you say that scar tissue stays in any degree, or does it always go away, or what; could you be a little bit more specific on that?
A  Yes; scar tissue forms beginning the fifth day after injury under normal circumstances, and I qualify that -- no infection, no foreign bodies, and so on.  It then progresses and reaches strength maturity in approximately four to six weeks.  Thereafter, it becomes thicker, more prominent, for a period of a few more months, and then starts getting softer and less prominent.  In approximately a year, roughly, it is called mature, and that is why any revision of scar or a plastic procedure would not be advisable before at least a year after the event, because the scar is not mature yet.  I am sorry if I did not answer --
Q  (Interposing)  I am sure you probably did.
A  -- your specific question.
Q  Let me ask you this question, is is your testimony then -- and again I am asking this question because I didn't understand totally your answer -- that scar tissue,to some degree at least, remains indefinitely -- is that correct or incorrect?
A  It is both, depending on the depth.
Q  Of the injury?
A  Yes.
Q  Well, suppose hypothetically that you received a puncture wound with an ice pick such as this and it went in, say, two inches or more into your body.  What kind of scar tissue would remain from that?
A  Would you hold it up once more and let me see how thick it is?
Q  I will hand it to you if counsel has no objections?

MR. SMITH:  No objection at all, Your Honor.

MR. BLACKBURN:  You can ignore these initials; they are mine.

THE WITNESS:  All right, sir.

(Witness examines exhibit.)

THE WITNESS:  This probably as being what's called about one-third taper of the instrument, medically speaking, probably up to its beginning of its taper, if it penetrates the skin at a right angle to the skin -- like this -- would eventually produce minimal scarring, because this will be really what I noticed some of you have been talking about -- puncture wound.  That is really a puncture wound.  I would say if it penetrates much farther, you would expect to have at least some remnant of a scar because this is fairly substantial in width and will separate a fibers.
     Everything I say is predicated at a 90-degree straight penetration.  Any angling, tangential penetration, additional longitudinal and linear tear of the skin would complicate the future scar, will make it more substantial.

MR. BLACKBURN:  Okay, thank you.

BY MR. BLACKBURN:
Q  Now, I believe also you testified -- let's see, this morning on direct -- concerning head trauma injuries, is that correct?
A  Some, yes.
Q  And you were talking about a blow on the head that can cause unconsciousness, and I think you -- and again correct me if I am mistaken -- that you can have unconsciousness without having a real severe blow up here on the head, is that correct?
A  Correct.
Q  Assume for a moment, very hypothetically -- this is Government Exhibit 306 -- that I walked up to you sitting like you are right there -- this is the Blackburn-Podgorny Experiment -- and I whacked you pretty hard with this club.
     If I did that, do you have an opinion, satisfactory to yourself as to whether or not I would probably break the skin on the forehead?
A  Yes.
Q  What is your opinion?
A  Depends if you hit me with the flat of the stick or the angle of the stick.
Q  Okay, what about the flat of the stick?
A  Probably not, not break the skin.
Q  What about the angle?
A  Probably yes.
Q  Well, let's suppose one thing further.  Suppose I whacked you with an angle like that -- just whacked you.  Do you have an opinion satisfactory to yourself as to whether or not that could cause unconsciousness?
A  Yes.
Q  What is that opinion?
A  It could.
Q  And if I struck you pretty hard like that, and caused -- hypothetically assuming that I caused you to become unconscious by sustaining that blow -- how far after I whalloped you like that would unconsciousness take place, if you know.

MR. SMITH:  OBJECTION.

THE COURT:  I think I will OVERRULE the objection.  He says, if he knows.

THE WITNESS:  Could I ask you to restate one item?  Did you mean how long after the blow unconsciousness will begin, or when will it end?

BY MR. BLACKBURN:
Q  When will it begin?
A  I do not have a good answer.

MR. BLACKBURN:  No further questions, Your Honor.

MR. SMITH:  May I ask questions in two additional areas, Your Honor?  I will cover them very briefly.


R E D I R E C T  E X A M I N A T I O N  2:52 p.m.

BY MR. SMITH:
Q  Dr. Podgorny, if the liver had been penetrated in Dr. MacDonald, what would a physician have been able to observe in the x-rays, if anything?
A  On the x-rays?
Q  Yes, sir.
A  Nothing.
Q  Nothing?
A  Nothing.
Q  What would a physician have been able to observe, if anything at all, that would have let him know that the liver had been penetrated?
A  It is difficult to give a single -- just a quick answer.  May I elaborate?
Q  Please do; yes.
A  Another problem with language is we are talking about penetration and we are talking about sometimes about puncture wounds.  If this is proper -- if for example, an item like he had just showed me, if that would -- along the long axis of its blade -- perforate and come out, then probably the examining physician -- unless he is suspicious on the basis of his knowledge of anatomy -- maybe take nothing because of the smallness of the hole.
     With somewhat smaller needles, we medically and by design, penetrate livers of patients for medical reasons.  On the other hand, it would penetrate tangentially at an angle and lacerate -- initially there would, again, be nothing short of suspicion.
     Later on, and by "later," I mean 6 to 18 hours after the event, there will be: (a) abdominal tenderness, discomfort;and rigidity in the right upper quadrant; with probably some degree of fever, and possibly some amount of greenish liquid -- being bile -- will appear from the tract of penetration.
Q  But it is quite possible, isn't it Dr. Podgorny, that Dr. MacDonald's liver was penetrated and there was just never any evidence that this occurred.  Would this be correct?

MR. BLACKBURN:  OBJECTION, Your Honor.

THE COURT:  I suppose -- he is your witness, Mr. Smith -- if the objection is to the form of the question.

MR. SMITH:  I can certainly rephrase it.

THE COURT:  Well, go ahead.

BY MR. SMITH:
Q  Dr. Podgorny, do you have an opinion, based upon reasonable medical certainty, as to whether Dr. MacDonald's liver could or might have been pentrated and there was never any evidence that this had occurred?
A  Yes.
Q  What is your opinion?
A  It could have.
Q  Now, Dr. Podgorny, if you were going to select a part of your body to self-inflict a wound but you didn't want to die -- you just wanted to inflict a wound -- would you select the seventh intercostal space mid-clavicular to inflict?
A  No.
Q  What would you select?
A  The left lower part of my belly.
Q  Why would you not select the seventh intercostal mid-clavicular?
A  May I clarify?
Q  Yes.
A  You are addressing this to me?
Q  Yes, sir.
A  As an individual, personal --
Q  Yes, sir; as just to you.
A  Not based on my experiential background?
Q  No, sir.
A  The reason -- first, I would avoid my chest period, because I don't want anyone, including myself, to fool around with my chest unnecessarily.  Two, I would avoid the seventh interspace on either side because I don't like to fool around with my liver or the spleen.  Three, in my particular situation, you need to be aware that I am a left ambidextrous person which means I am slightly better with my left hand in many chores but basically I am ambidextrous because I was born left-handed and changed.  This will affect also how I would manipulate such an object -- a weapon.

MR. SMITH:  Thank you, Dr. Podgorny.  I have no further questions, Your Honor.

MR. BLACKBURN:  Just one moment, Your Honor. 

(Pause.)  We have nothing further.

MR. SMITH:  We would like to excuse Dr. Podgorny if we may, Your Honor, unless the Court has questions for him.

THE COURT:  The Court doesn't have any.

MR. BLACKBURN:  He certainly may go.

MR. SMITH:  Thank you very much, Dr. Podgorny.

(Witness excused.)