STATE OF MICHIGAN
FORTY-FOURTH JUDICIAL CIRCUIT COURT LIVINGSTON COUNTY
FAMILY DIVISION
In the Matter of,
NAOMI BURNS, a minor.File No. 14-14708-NA
/
JURY TRIAL - DAY SIX
BEFORE THE HONORABLE MIRIAM A. CAVANAUGH - TRIAL COURT JUDGE
Howell, Michigan – Monday, October 27, 2014
APPEARANCES:
For the People: MS. BETSY SEDORE (P63839)
Livingston County Prosecutor’s Office
210 South Highlander Way
Howell, Michigan 48843
(517) 540-7781
Layer guardian ad litem:MR. ALEXANDER K. GARTHOFF (P73400)
Attorney at Law
211 East Grand River Avenue Suite 105
Howell, Michigan 48843
(517)540-0606
For respondent mother:MR. DENNIS L. BREWER (P59528)
Attorney at Law
2000 Grand River Annex
Brighton, Michigan 48114
(810) 227-7878
For respondent father: MR. MICHAEL J. CRONKRIGHT (P52671)
Kronzek & Cronkright PLLC
420 South Waverly Road Suite 100
Lansing, Michigan 48917
(517) 886-1000
TRANSCRIBED BY:Leah L. Hanna, CER 6218
Certified Electronic Recorder
(517) 540-7818
TABLE OF CONTENTS
WITNESSES:PAGE
DR. KHALED TAWANSY
Direct examination by Mr. Cronkright6
Voir Dire by Ms. Sedore14
Direct examination (continued) by Mr. Cronkright15
Cross-examination by Mr. Garthoff99
Cross-examination by Ms. Sedore 107
Redirect examination by Mr. Cronkright 152
MARK WHEELER
Direct examination by Ms. Sedore 160
Cross-examination by Mr. Cronkright 196
Cross-examination by Mr. Brewer 225
Cross-examination by Mr. Garthoff 236
Redirect examination by Ms. Sedore 239
Recross-examination by Mr. Brewer 243
BRENDA BURNS
Direct examination by Ms. Sedore 250
EXHIBITS:
None
Howell, Michigan.
Monday, October 27, 2014 - 8:42 a.m.
VIDEO OPERATOR: Calling the Naomi Burns matter case number 14-14708-NA.
THE COURT: All right. Good morning. Appearances please.
MS. SEDORE: Betsy Geyer Sedore on behalf of the People with Derek Schultz from DHS.
MR. GARTHOFF: Alexander Garthoff LGAL for he minor child.
MR. CRONKRIGHT: Good morning your Honor Michael Cronkright on appearing with and on behalf of respondent father.
THE COURT: All right. Good morning.
MR. BREWER: Good morning. Dennis Brewer on behalf of and with Brenda Burns respondent mother.
THE COURT: All right. Good morning. Okay. So are we ready to bring the jury in?
MR. CRONKRIGHT: Well Judge I thought we’d probably want to get Dr. Tawansy’s presentation working before we brought them in is that--and we’re plugged in to the system but I don’t know what has to happen on your end.
VIDEO OPERATOR: Okay.
MS. SEDORE: And I have one other question just as far as the order goes. Since it is his witness what order do we cross-examine? In the same way around so I’d be last or? That’s fine with me I just wasn’t sure.
THE COURT: Right we can just continue in the same order any objection?
MR. BREWER: None.
THE COURT: Mr. Brewer? Mr. Garthoff?
MR. GARTHOFF: No objection.
MS. SEDORE: Great.
MR. CRONKRIGHT: Okay can you put that on presentation slideshow? There you go.
DR. TAWANSY: It’s not on slide show. Let me--I don’t know why I’m having a hard time switching it. Slide--
MR. CRONKRIGHT: Put it on slideshow and see what happens. Okay.
THE COURT: All right are you ready?
MR. CRONKRIGHT: I just want to make sure this working. I think we’re ready your Honor.
THE COURT: Okay. So I’m going to instruct the jury that we’re going due to scheduling--for scheduling purposes we’re taking witnesses out of order and the respondent father is going to be presenting a witness. Okay. Let’s bring them in.
DEPUTY KERR: All rise for the jury.
(At 8:44 a.m., jury enters courtroom)
THE COURT: All right. Good morning. Thank you. Please be seated. For the record the jury is now present. Welcome ladies and gentlemen of the jury. So at this point due to some scheduling--due to scheduling we’re going to take a witness out of order. Respondent father is going to be presenting a witness here this morning. Okay. So just so you know. And then we’ll be switching back over to the petitioner’s case. Okay? All right. So Mr. Cronkright do you want to all your witness at this time?
MR. CRONKRIGHT: I do. And thank you your Honor. Good morning. Good morning jury panel. I would call with the Court’s permission Dr. Khaled Tawansy to the stand.
THE COURT: Okay. All right sir if you want to come on up. Before you get seated if you could raise your right hand here and be sworn.
VIDEO OPERATOR: Do you solemnly swear or affirm the testimony you’re about to give in this matter pending before the Court will be the whole truth and nothing but the truth?
DR. TAWANSY: Yes I do.
THE COURT: Okay. Go ahead and be seated and comfortable. Pull yourself up to the microphone. And if you could state your full name for the record.
THE WITNESS: My name Khaled Tawansy. I’m a medical doctor.
THE COURT: All right. I’m going to need you to spell that.
THE WITNESS: First name is K-H-A-L-E-D. Last name is T-A-W-A-N-S-Y.
THE COURT: All right. Thank you. Mr. Cronkright.
MR. CRONKRIGHT: May I proceed your Honor?
THE COURT: Please.
KHALED TAWANSY
called as a witness at 8:46 a.m., testified as follows:
DIRECT EXAMINATION
BY MR. CRONKRIGHT:
QGood morning Dr. Tawansy.
AGood morning.
QDr. Tawansy I want to start by reviewing um, some of your background and expertise so I’m going to start out by asking you questions principally about you. You just told us that you were a medical doctor. Where are you licensed to practice medicine?
AUh I’m--I currently have an active license to practice in California.
QOkay. Have you been licensed in other jurisdictions?
AYes.
QOkay. What other jurisdictions?
AMichigan, Tennessee, Massachusetts, and um, British Columbia, Canada.
QAll right. Um, (inaudible) currently a practicing physician?
AYes I’m a practicing ophthalmologist in southern--
QOkay.
A--California.
QSo where did you obtain your your medical degree from?
AI obtained my MD in 1991 from the University of Michigan Ann Arbor.
QAnd what year was that Doctor?
A1991.
QHave you been practicing as a medical doctor continuously since then?
AYes I have.
QOkay. Now um, was was Michigan then your first medical license? How did that work?
AUh, actually California was my first medical license because I did my internal medicine residency at the University of California. But then I returned to Michigan doing ophthalmology residency at Henry Ford Hospital is when I obtained my Michigan license.
QOkay. So um, is ophthalmology then something you become board certified in?
AYes. I was board certified in ophthalmology after having completed the required residency training. I was board certified in I believe 1998.
QOkay. And do you have any other board certifications that we should know about?
ANo.
QOkay. And so since 1998 have you continuously practiced ophthalmology?
AYes.
QDoes your practice as it exists today have any particular focus or emphasis within ophthalmology?
AYes. Um, after completely ophthalmology residency I did fellowship training in vitreoretinal diseases, disease of the retina and vitreous. First as a general vitreoretinal surgeon and then more specifically in the subspecialty of pediatric vitreoretinal diseases. And did specific fellowships in that area. In Massachusetts the Eye and Ear Infirmary. And since then I’ve--my practice has been focused on pediatric retinal disorders. Disorders of the back of the eye including retinal detachments, trauma, retinal hemorrhaging, inflammatory disorders that affect children anywhere from premature children to young adulthood.
QSo do you hold yourself out as an expert in pediatric retinal disorders?
AYes I was one of the first people in the county to do fellowship training in this area. And um, it is the focus of my practice. And I do get referrals from all over the world and certainly from all over the western United States for this, for disease of this nature. So I do focus in terms of my practice also teaching and research work is dedicated to this area.
QSo you mentioned a couple of times I think that you did a fellowship. Now do you actually hold a subspecialty related to pediatric work or some kind?
AWell I did fellowship training in a vitreoretinal diseases um, so that’s an additional 18 months of subspecialty training. There’s no specific board for that area, but it is--I’m recognized has having done the training and being focused in this area.
QNow are you a pediatrician?
ANo.
QOkay. All right. So as I understand it you’ve had some additional training in pediatric retinal disorders but your certification is um, as an ophthalmologist?
AYes. In the field of ophthalmology there’s no uh, subspecialty boards. So the only board certifications in the field of ophthalmology in general.
QHave you been qualified as courts as an expert witness either in ophthalmology or in pediatric retinal disorders?
AYes in both.
QAnd could you tell the jury approximately how many times you’ve been qualified as an expert?
AOver 100 times.
QOkay. Um, and is most of that work in California?
AUh I would say maybe 40 to 50 percent of it has been in California.
QUh, do you have an awareness or are you able to tell us how many states you’ve been qualified--how many state courts you’ve been qualified as an expert witness in?
AI can give you a rough number. Probably about 20 states.
QAll right. Okay. Have you been previously qualified as an expert witness in Michigan?
AUm, yes a long time ago.
QAll right. All right. Um, let’s talk a little bit Doctor about your practice. Do you have a hospital practice right now?
AMy ho--my practice is based both in clinics and out of hospitals. I have uh, privileges at approximately 25 hospitals in southern and central California where I do consultations, take call, do visits to the emergency room, to the pediatrics wards, to the intensive care units. I do screenings for (indecipherable) retinopathy prematurity in many of those hospitals. We also have several clinical, clinic locations which are private clinic settings. The main one being on Los Angeles, but throughout central and southern California. We have multiple clinics that we also see patients on an outpatient basis.
QAnd when you say we what are you referring?
AUh, myself, my collogues. I have junior partners in my practice. We have nurses and assistants and a team of individuals dedicated towards managing these patients.
QSo generically when you say we you’re referring to other people in your clinic?
AYes.
QOkay. Now for the clinic--clinical work that you do is that mostly focused on children or is that all ages?
AWe don’t have a age cutoff in our practice but many of our patients are preemie and I would say about 80 percent of the practice involves children.
QAnd what about the--you said you had privileges at five hospitals.
ATwenty-five.
QTwenty-five?
ATwenty-five.
QOkay. I missed the two. So you have privileges in 25 hospitals. So do you go to all 25 hospitals?
AYes. Some more regularly than others. Some of them just consult me when they have a difficult case. Others I do routine care like taking call and screening in the ICU’s, Neonatal ICU, the Pediatric ICU. But yes it does keep me busy.
QSo um, in regards to your hospital practice where--amongst those 25 hospitals how much of your work is focused on children there?
AProbably 80 percent.
QOkay. Now Doctor focusing on that portion of your hospital practice that’s dealing with children do you on occasion um, get called to consult on child abuse or suspected child abuse cases?
AIt is something that I do regularly.
QOkay. Would you have any way of quantifying for us--say if we looked at the last five years for example do you have any idea how many child abuse related evaluations you’ve done?
AI would say it averages two a month.
QOkay. So roughly 24 per year?
AApproximately yes.
QOkay. And um, if we go back to your work as a testifying expert um, the uh, question I have for you Doctor is how does that break down--how much work is that--how much of your work is testifying on behalf of the state or on behalf of the prosecution?
AApproximately 40 percent of cases--maybe 30 to 40 percent of the cases that I’ve done have been on behalf of the prosecution. And 60 to 70 percent uh, on behalf of defense cases.
QOkay. Now in this case obviously you’re here um, because the defense team hired you is that right?
AThat's correct.
QAnd you’re getting paid for your services?
AI believe so.
QOkay.
AYes.
QIn any event are you expecting to get paid for your services?
AUh usually I do. Not always.
QOkay.
ABut um, it varies from case to case.
QSo is it normal for you as a practicing physician to get paid for your services?
AUm in terms of my clinical practice or in terms of this testimony?
QBoth.
AIn my clinical practice yes I do have a pro bono clinic that we run once a week. But we do you know in the majority of cases get paid. As far as my testimony work it’s been about half and half. About 50 percent of the time we get paid.
QAll right. Thank you.
MR. CRONKRIGHT: Your Honor at this time I would move to qualify--or I would ask the Court to qualify Dr. Tawansy as an expert witness in ophthalmology and specifically in pediatric retinal disorders.
THE COURT: Any objections?
MS. SEDORE: I don’t object to the ophthalmology. I’m not certain about the pediatric retinal disorders.
MR. CRONKRIGHT: I would submit the witness for voir dire if anybody desires.
THE COURT: Do you want to voir dire? Would you like the opportunity?
MS. SEDORE: I guess--
THE COURT: Or do you want to make argument?
MS. SEDORE: Yeah I mean basically my argument is that if there’s no board certification for that subspecialty I understand that it’s the focus of his practice, but as to that being an area of expertise I’m not sure that that qualifies as something he can testify to as an area of expertise.
MR. CRONKRIGHT: I think the requirements of MRE 702 are met. If he’s qualified based on his experience, his education, and in this case he’s qualified based on both his experience and his education. He’s done a fellowship in pediatric retinal disorders. The fact that they don’t have a board for that doesn’t change the fact that he’s clearly an expert. It’s a substantial part of his practice. Um, and um, he’s well qualified so I--so under MRE 702 I think we’ve met the threshold.
MS. SEDORE: I do have further couple of questions for voir dire.
THE COURT: All right go ahead.
VOIR DIRE
BY MS. SEDORE:
QSo Doctor you’ve been qualified in Michigan one time? When was that?
AUm, it was approximately 10 years ago.
QOkay. And what were you qualified as an expert in?
AIn ophthalmology and in--you know I don’t remember. I think it was in ophthalmology and retinal disorders. I don’t think it was a pediatric case at that time.
QBut you’re not sure beyond ophthalmology what you were qualified as a witness is that correct?
AI’m routinely qualified as a pediatric retina specialist. Have taken care of more pediatric retina cases than anyone else in the western United States. Um, I’m a founding member of the Society of Pediatric Retina Specialists. I’m about as qualified as one can possibly be in this area.
THE COURT: Any, any other objection? Mr. Garthoff do you have any--
MR. GARTHOFF: No.
THE COURT: --objection?
MR. GARTHOFF: Anything else Ms. Sedore?
MS. SEDORE: No.
THE COURT: All right well I’m going to overrule the objection. He’ll be qualified in the area of ophthalmology specifically pediatric retinal disorders. All right. Go ahead.
MR. CRONKRIGHT: Thank you your Honor.
DIRECT EXAMINATION (CONTINUED)
BY MR. CRONKRIGHT:
QNow Dr. Tawansy I want to turn your attention some to the case of Naomi Burns. Do you recall if there was a time when somebody in my office contacted you and asked you if you’d be willing to review this case?
AYes I do.
QAnd um, were material provided to you for your review?
AYes.
QDid those materials include the RetCam images and the fluorescein angiogram images for Naomi Burns?
AYes they did.
QAnd did it also include a substantial body of medical records?
AYes.
QDid the medicine records that were provided to you include the records from Naomi Burns 3-18 and 3-24 admit to the University of Michigan?
AYes they did.
QAnd did it also include the emergency room records from 3-16-2014 and 3-17-2014 St. Joseph Hospital?
AYes that’s correct.
QAnd were there various other records as well provided to you?
AYes.
QAnd did you review all of the records that were provided to you?
AYes I did.
QDo you also recall whether you’ve had an opportunity to see the radiographic studies that were done in this case at the University of Michigan?
AYes.
QAnd did the studies that you reviewed--the studies that you reviewed did that include um, a couple of different MRI’s for the University of Michigan?
AYes.
QAnd did it also include um, ultrasound testing that was done?
AYes.
QDid it also include um, bone scans in other words full body surveys--
AYes.
Q--that were done just using ordinary x-ray techniques?
AYes.
QAnd did you review all of that material as well?
AYes I did.
QI understand. Now in your practice um, would it be normal for you to look extensively through all of that type of information if you were called upon to make a child abuse evaluation say in a hospital setting?
AUm, if I am um, looking at a case to, to ascertain whether there was potential child abuse or shaking injury, I would normally review all of that material. I would seek it out and review it. Many of these cases are ones where I’m making the first diagnosis.
QNow in regards to the MRI findings did you uh review the actual images, did you review the reports, or was it both?
AWell I reviewed all of the reports and I looked at images. I don’t hold myself out as an expert in, in brain imaging but I do look at those images to get more insight into the case.
QAll right. Now um, one other question before we move on. Have you had opportunity to review some expert reports in--that aware produced by other potential defense experts?
AYes.
QOkay. So having said that before you arrived at your conclusion did you take all of that information into consideration?
AUm I don’t think I reviewed--I don’t think I used reports from other defense experts in my conclusions or in my thought process. But I did look at them.
QOkay. So is that something--is that consistent with your normal practice for example in a hospital practice that you would look at the medical records but not, not outside expert opinions?