Also see opposition to summary judgement
ESTATE'S REPLY TO DEFENDANTS' FRYE CHALLENGE TO COCKROACH EVIDENCE Plaintiff first addresses the defense statement that Plaintiff fired Dr. Haskell. This is simply not true. This court restricted each party to one entomologist. The Estate will gladly keep Dr. Haskell if the court permits. The Estate had retained 6 out of 9 board certified entomologists in the United States. All opined that there are cockroach feeding sites on Lisa's body. They are all Ph.D.'s and board certified by the National Academy of Forensic Scientists. The defense expert has a Masters degree and is not board certified, but is now trying to become certified, not by the National Academy, since he is not qualified, but by the Entomological Society. The Estate does not attempt to denigrate this expert, but simply points this fact out when the defense attempts to argue that the Estate's experts are not qualified to render their opinions. Furthermore, Dr. Haskell's experiment should be considered in this motion. That experiment was successful, as Dr. Haskell stated, since it did prove that roaches do bite on living humans, but that they were not left on the body long enough to create feeding sites. More importantly, one bite did not create any mark. Therefore, the marks on Lisa's body took more feeding than one bite. I. DEFENDANTS' GROUNDS 1. It is novel that cockroaches will feed upon living humans. (Note that defendants do not call it novel science, just novel.) 2. Identifying cockroach bites by photograph and if antemortem or postmortem is novel, not generally accepted, and is not supported by scientific studies. (Note again the use of the term novel all by itself). 3. Reject Plaintiff's expert testimony since it is pure conjecture and premised upon insufficient fact and not supported by the record. Plaintiff's experts are inconsistent in identifying the bites and cannot say they, the roach bites, were caused premortem. (Note novel is not even used here). 4. Plaintiff's Ph.D. board certified entomologists are not qualified to identify cockroach bites, either antemortem or postmortem. They are only qualified to identify insects. (Note again that novel is not even used here). 5. Postmortem cockroach bites are irrelevant, since Lisa could not personally experience the bites and trauma from it. (Note again that novel is not even used here). 6. The prejudicial value outweighs the probative value. (Note again that novel is not even used here). Defendants take great issue with the fact that the Estate's board certified forensic entomologist, Lee Goff, Ph.D., did not view the scene, did not collect a single insect, and did not view the body. (Page 15-16). First, before Lisa's body was taken too late to the emergency room, her attendants washed the body. Second, before the police could view the scene, FLAG staff completely washed it down and brought in new furniture on the day after her death. FLAG also argues that Dr. Goff would expect insect infestation to have roaches feeding on a body, similar to other crime scenes he has investigated. If FLAG is telling the truth that there was no insect infestation at the hotel, then this simply proves the Estate's argument that Lisa was never in the hotel in the first place. She was likely at a distant location, like the staff apartment building, the Hacienda, which is reportedly infested with roaches! The opinion of the Estate's experts are pure opinion testimony not subject to a Frye challenge. . . . _pure_opinion_testimony_, such as an expert's opinion that a defendant is incompetent, _does_not_have_to_meet_Frye_, because this type of testimony is based on the expert's _personal experience and training_. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Profile testimony, on the other hand, by its nature necessarily _relies_on_some scientific_principle or_test,_which_implies_an_infallibility_ not_found_in_pure_opinion_testimony_. The jury will naturally assume that the scientific principles underlying the expert's conclusion are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. See Stokes, 548 So.2d at 193-94 ("[A] courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use."). (Emphasis added). Flanagan v. State, 625 So.2d 827 (Fla., 1993). Isn't it interesting that the defense experts do not know of any scientific study concerning roaches biting on people, except the one Russian study by scientists who succeeded in having roaches bite them while the scientists were, presumably, alive. What the defense fails to point out to the court is not only are these pure opinion testimony, but also that science does rely on case studies, anecdotal reports, and the experience of the scientist. The defense has nothing to say about the fact that the Estate's forensic entomologists are all board certified and have seen roaches feeding upon pigs and have identified roach bites on human remains. The Estate's experts then take these findings and add to that the other case studies, including criminal reports of roaches found feeding upon babies, both alive and dead, and combine that with their education to arrive at their opinions. That is why their opinions have nothing to do with novel science under Frye. The next amazing argument is that since the FLAG staff never saw a roach in Lisa's room, and since the hotel was regularly sprayed, then these marks could not be left by roaches. The problem with this argument is that it has nothing to do with Frye, since it, like the entire argument of the defense, goes to the weight of the evidence. It will be up to the jury to believe or not believe the staff of FLAG. Both Dr. Haskell and Dr. Goff made very conservative opinions in this matter. Neither would say that these marks are 100% roach feeding sites for one and only one reason: they were not there witnessing the roaches feeding upon Lisa. What both experts do opine is that these marks are consistent with roach bites based upon their experience and education and that their opinion meets the legal requirement of more likely than not. Therefore, Dr. Goff renders his opinion at 80% likely, far exceeding the legal minimum of 51%. The Estate attaches hereto two recently reported cases of live babies or children being found with roaches feeding upon them. The first concerns a criminal case involving abuse of a 7 month old Quail Valley girl from Riverside County, California, in 2001. At the emergency room at Inland Valley Medical Center in Wildomar, California, it was diagnosed that the baby was suffering from rat and cockroach bites. In April of 1998, in Rochester, N.Y., a mother was sentenced to 15 years for child neglect of her 5 year old daughter. Among other signs of neglect, a pathologist cited cockroach bites on her arms and legs. Why couldn't the defense find these cases? Dr. Haskell produced several autopsy or scene investigation photographs of adults or children with identified roach bites and feeding sites. Dr. Goff produced several published articles, one of which is attached to the defense exhibits, the Denic article, which state in no uncertain terms that roaches bite living people. The defense chastises both Dr. Haskell and Dr. Goff in being able to pass the defense test at deposition. Under the pressure of direct examination to answer quickly, both experts could not match every roach bite with the one they marked on their respective charts, charts that took hours to produce after extensive examination. This has nothing to do with Frye. In the authoritative textbook edited by Dr. Werner Spitz, M.D., there is an extensive discussion with pictures of ant and roach bites on the deceased. This is prime evidence that roaches do bite human flesh. See defense Exhibit 31. Dr. Spitz identifies autopsy microscopic slides as being only one thing: bug bites. Spitz 490 2 A She has two -- these two marks, lesions, on the tip of the 3 nose with a bridge of intact skin between them. Each one 4 is sharply demarcated, recessed, devoid of epidermis and 5 dried. 6 Q And isn't that consistent with a cut on the nose? 7 A A cut? No, it is not, definitely not a cut. 8 Q With a scrape on the nose? 9 A No, I don't think it's a scrape, either. 10 Q How many bugs would it take to make those two marks and how 11 long would it take them to do that? 12 A How many bugs? Two bugs. 13 Q Two bugs? 14 A One on the right side and one on the left. 491 1 Q You've never seen a cockroach bite anybody, have you? 2 A Oh, yes. 3 Q Seen it with your eyes? 4 A Yes, I have. 5 Q You've seen a cockroach bite somebody? 6 A Yes. 7 Q Who? Who, when and where? 8 A I've seen cockroaches on bodies. 9 Q Have you ever seen a cockroach bite a person? 10 A Yeah. . . . 493 9 A Yeah. This is distinctive because it's dried and it's 10 somewhat shrunken. That's why it's brown. . . . 501 you believe is indicative of a bug bite? Can 21 you just mark on 22 A The whole picture. 23 Q Okay. So the whole picture Nineteen 24 A Yes. . . . 440 as to when any 4 particular bite was made, whether before death or after 5 death? 6 A In the absence of microscopy and in the absence of 7 observation by witnesses there is no way to do that. And . . . 429 7 Q And you testified, to a reasonable degree of medical 8 certainty, as an anatomical pathologist, that any mark on 9 Lisa McPherson's body is a bug bite? 10 A I can testify, within a reasonable degree of medical 11 certainty, that these injuries look like bug bites, yes. I 12 cannot ever say these are bug bites, because that would be 13 a hundred percent. But within a reasonable degree of 14 medical certainty, they qualify as bug bites, yes. . . . 439 1 And can you tell -- testify, to a reasonable degree of 2 medical certainty, when these marks which you say are 3 likely bug bites, when they were made? 4 A I think they -- they are -- some of them are of similar age 5 and some of them are different ages. 6 Q Can you -- 7 A Some of them show evidence of drying, some of them don't. 8 Some of them are fresher, some of them are older. 9 Q Can you tell, to a reasonable degree of medical certainty, 10 whether any of the marks are postmortem? 11 A Some of them, I can't really tell. The fresh ones that are 12 dried, I am unable to tell. I'd have to consolidate that 13 based on what testimony there is in regards to a particular 14 defect, such as the nose, for instance. I understand that 15 Ms. Arrunada knew of the existence of the nose defects 16 earlier on the 5th of December. ... 23 Q Okay. And you picked out a picture of the -- of Lisa 24 McPherson's face. What is it about this picture, which is 25 number four of set nine, that is consistent -- that shows a 490 1 bug bite? 2 A She has two -- these two marks, lesions, on the tip of the 3 nose with a bridge of intact skin between them. Each one 4 is sharply demarcated, recessed, devoid of epidermis and 5 dried. 6 Q And isn't that consistent with a cut on the nose? 7 A A cut? No, it is not, definitely not a cut. 8 Q With a scrape on the nose? 9 A No, I don't think it's a scrape, either. 10 Q How many bugs would it take to make those two marks and how 11 long would it take them to do that? 12 A How many bugs? Two bugs. 13 Q Two bugs? 14 A One on the right side and one on the left. 15 Q And--and how long -- 16 A That's what it would take. 17 Q Well, how big would the bugs have to be to make those 18 marks? 19 A I couldn't tell you how big the bugs were. 20 Q Well, you're -- 21 A A cockroach will do that. 22 Q How big would it have to be and how long would it take? 23 A I never stood there with a stopwatch and timed it. 24 Q Excuse me? 25 A I never stood there with a stopwatch and timed it. 491 1 Q You've never seen a cockroach bite anybody, have you? 2 A Oh, yes. 3 Q Seen it with your eyes? 4 A Yes, I have. 5 Q You've seen a cockroach bite somebody? 6 A Yes. 7 Q Who? Who, when and where? 8 A I've seen cockroaches on bodies. 9 Q Have you ever seen a cockroach bite a person? 10 A Yeah. 11 Q You mean after they were dead and they were sitting in the 12 woods and it was feeding-- 13 A They were not sitting in the woods, they were sitting in a 14 house. 15 Q And it was dead -- 16 A In a -- in a house with -- which was poorly kept and there 17 were cockroaches. In Michigan you don't get cockroaches as 18 much as you get in Florida. You get cockroaches on 19 occasion. Mostly here, this kind of damage, is from ants. 20 Q So you suspect that in this hotel that had regular 21 extermination services that -- that two cockroaches sat on 22 Lisa McPherson's face and did these bites. Is that -- is 23 that what you suspect? 24 A First of all, I didn't say cockroaches sat on Lisa 25 McPherson's face or nose, I said two -- You asked me how 492 1 many cockroaches could have done that and I said two 2 cockroaches, one on the right and one on the left. I 3 didn't say how many cockroaches, I don't even know that 4 these are cockroaches and I told you that this morning. 5 Q You don't even know that they're bug bites, either, do you? 6 A They are bite bugs because they look like bug bites and 7 it's very unlikely that anything else would have caused 8 this as distributed and localized as they are. 434 But I've seen 16 hundreds of cases, maybe thousands of cases, where there 17 were -- there was damage by insects. . . . 438 4 tell us, to a reasonable degree of -- of medical certainty, 5 of scientific certainty, what is the structure of the bug's 6 mouth that -- teeth, pincers, whatever it is, that would 7 have made the marks that you believe are bug bites in this 8 case? 9 A No, I'm -- I'm not an entomologist, so I would -- in that 10 regard I would defer to an entomologist. 449 1 A Yes. I have two slides, one of the right foot and one of 2 the left hand. . . . 452 1 inflammatory change? 2 A I don't recall. So they were incurred during life, one 3 older than the other. The one closer to the time to the 4 death, the other one longer than -- older than. . . . 458 When you say a healing process what does that tell you? 12 A That's what I referred to earlier as fibrosis, which is 13 indicative that this occurred during lifetime, because it 14 is the reaction of the body to the presence of this bug 15 bite or whatever -- whatever bug it was that caused this. . . . 19 A The fact that it is a superficial cutaneous or skin damage, 20 or superficial ulcer which, in conjunction with the naked 21 eye appearance, supports the conclusion that this is most 22 likely a bug bite. . . . 463 in Exhibit Seventeen, in 15 the slides that you looked at and identified, 16 microscopically, that would indicate that there is any 17 inflammation as a result of any secretion? 18 A The inflammation has mostly healed . . . 464 8 Q -- the lesion. Can you tell from -- from that -- from 9 Exhibit Seventeen or from the slides that you looked at, 10 when the lesion was made, what day, how long before Lisa 11 McPherson died? 12 A I don't know. Maybe -- maybe between ten and -- ten and 13 twelve days, something like that. I couldn't say any 14 closer. . . . 24 A We're looking at the back of the right hand. 25 Q Okay. 475 1 A Which shows an abundance of circular, mostly circular 2 lesions which qualify as bug bites and one of them is 3 crater-like, which is infected. And there is bruising of 4 the back of the wrist which qualifies for restraint, 5 similar to the abrasion with underlying bruising on the 6 back of the foot that we were discussing, the ankle B . . . 476 1 A That's correct. There is a better picture of it which I 2 just see here which shows it much better. 3 Q Okay. So this is Exhibit Twenty-One. Show us on Exhibit 4 Twenty-One what you believe is the bruising that is not the 5 bug bite which you say is consistent with restraint. 6 A There is bruising and abrasion. This looks very similar to 7 what you saw on the back of the foot that we were 8 discussing earlier. . . . 478 One of them, the one on the second knuckle is infected and 15 these little areas here are also suspect to me as being bug 16 bites, those little -- 17 Q But not the -- not . . . 487 4 Q Okay. Now, let me show you -- Let me show you exhibit 5 twelve of set nine and ask you if there is anything on the 6 left foot that, from the picture here, that you can tell, 7 but beyond -- to a reasonable degree of medical certainty, 8 is a bug bite as opposed to an abrasion or a bruise. Which 9 foot is that, by the way? 10 A Right foot. All these lesions, all of them, could be bug 11 bites. Found on pages 2-3 of Defendants' motion.