DR. JOHN BEDERKA, Ph.D.
TOXICOLOGIST
CIVIL TRIAL TESTIMONY

See also: Dr. John Bederka, Ph.D. Report


Page 4

1 PROCEEDINGS

2 (Whereupon the following is an excerpt

3 of testimony.)

4 THE COURT: Plaintiff may call its next

5 witness.

6 MR. GALLAGHER: Call Doctor Bederka to the

7 stand.

8 THE COURT: Please raise you right hand:

9 JOHN BEDERKA, M. D.,

10 called as a witness, being first duly sworn, testified as

11 follows:

12 THE COURT: You may be seated.

13 THE WITNESS: Thank you.

14 DIRECT EXAMINATION

15 BY MR. GALLAGHER:

16 Q. Would you spell you first and last name for the

17 court reporter, please?

18 A. It's John. J-o-h-n, and B-e-d-e-r-k-a.

19 Q. Mr. Bed- --Mr. Bederka, what is your address?

20 A. I'm at 780 North Austin, A-u-s-t-i-n, Avenue in

21 Aurora, Illinois.

22 Q. And what is your occupation?

23 A. I do consulting work.

24 Q. In what areas do you consult?

25 A. Its the general area of toxicology.

 

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1 Q. Okay. Would you tell the jury your educational

2 background?

3 A. Yes. I have degrees in chemistry, a Bachelor's

4 Degree and a Master's of Science Degree in organic

5 chemistry; and after that, I went to medical school there

6 and I got a Ph.D. in pharmacology, which is the study of

7 drugs, and then I did a post-doctoral one-year study of

8 effects of drugs on the brain and the rate of absorption of

9 drugs.

10 Q. Okay.

11 A. That was from '55 to '68. This century.

12 Q. I'm going to hand you what our reporter's marked as

13 Exhibit 1097 and ask you to identify for the jury what that

14 is.

15 A. This is a copy of my curriculum vitae.

16 Q. Okay.

17 A. Yes. Correct. Most current one.

18 MR. GALLAGHER: I'd like to offer 1097. We

19 have copies for counsel.

20 THE COURT: Was there any objection to that?

21 MR. HELLMAN: No objection.

22 THE COURT: Exhibit 1097 is admitted.

23 Q. Would you tell the jury then your educational

24 background, where you were educated?

25 A. Well, like I said, I -- I went to school in -- in

 

Page 6

1 various places and started in West Virginia, did the

2 chemistry work there. Then I did another year of chemistry

3 studies in the state of Washington. The I went back to

4 Virginia to the Medical College of Virginia, and I spent

5 five years down there working on the Ph.D.; and then I went

6 a year to the University of Minnesota where I did the

7 post-doctoral work on the -- the brain.

8 And after that, I -- I went to what you would

9 call work. The first -- first job I has was in the country

10 of Thailand where I went over there for three years, worked

11 with the Rockefeller Foundation and the government of

12 Thailand to set up a medical school there and a graduate

13 school in the basic medical sciences and, also, there was

14 a -- part of a nursing program. I spent three years there

15 teaching pharmacology and toxicology and had a brief

16 research program while I was there, also. That was from '68

17 to '71.

18 And then from '71 to '77, I was in Chicago at

19 the University of Illinois in Chicago. I was in --

20 primarily in the pharmacy school and the school of public

21 health care. Again, it was pharmacology and toxicology

22 teaching and also research work and -- mostly in

23 toxicology.

24 And then for '77 to '83, I moved into the

25 medical school at the same institution, the University of

 

Page 7

1 Illinois at Chicago. In the pathology department there and I

2 ran the -- the toxicology and the drug analysis laboratory

3 in the hospital as well as taught medical students and the

4 house staff and medical technology students.

5 And the from '83 to '88, I was involved in a

6 commercial laboratory where I was the laboratory director

7 there where we didn't do drug work but we did mostly

8 nutrition work. We studied levels of iron and calcium and

9 things like that and amino acids in people and all kinds of

10 other organisms.

11 But during that time over those years from

12 about -- from about '73 till today, I occasionally did

13 consulting work, expert witness work, or -- or just general

14 consulting on some kind of a toxic -- toxicity-related

15 matter.

16 And then from '88 until the present time, I've

17 been self-employed working out of my home and doing

18 consulting work as a toxicologist; and I also act as the

19 laboratory director of a small drug analysis laboratory in

20 Chicago where we do street drug analysis.

21 Q. As a part of you curriculum vitae, do you have

22 attached the areas in which you have consulted? It's a

23 two-page addition to it.

24 A. Yes.

25 Q. Okay. Have you ever yourself done alcohol testing?

 

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1 A. Yes, sir.

2 Q. Would you tell the jury about that?

3 A. When I was the director of the toxicology lab at

4 the hospital, I set up a 24-hour stat lab that serviced the

5 hospital as well as the emergency rooms. So I personally

6 would come in all the time and do the testing that was

7 necessary which included alcohol testing where we used the

8 direct injection gas chromatography.

9 After awhile, we had all of the techs in the

10 lab that were rotating through that; and at that point, we

11 had -- we had three different systems going for alcohol

12 testing. We had one in the main lab, which as a gas

13 chromatography. We had one in the hospital lab. That was

14 the stat lab that was a gas chromatography and, also, in the

15 hospital lab there was a DuPont analyzer that also did work

16 with alcohol and many, many other types of substances that

17 were measured in -- in blood and urine.

18 Q. DuPont analyzer, does that test the blood plasma?

19 A. It can do either whole blood, which you need a

20 special preparation, or it can do serum or plasma, depending

21 upon what you want done.

22 Q. Okay. How does pharmacology relate to toxicology?

23 Can you--

24 A. They're very, very similar; they the have slightly

25 different foci. Pharmacology, basically is the area that

 

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1 deals with drugs where you either are looking at a drug to

2 improve its ability to -- to treat; you're looking at some

3 chemical to be introduced as a drug. So pharmacology has a

4 therapeutic viewpoint at its center.

5 Toxicology, on the other had, uses pretty much

6 the same methodologies and techniques of pharmacologists;

7 but toxicologists are trying to understand more or less what

8 went wrong. Why did the drug cause a toxic effect? How did

9 it cause the adverse effect that was seen with the drug?

10 How does carbon monoxide actually cause dearth, for example?

11 So toxicologists want to know the -- the

12 negative aspects of drugs and chemicals; whereas,

13 pharmacologists are looking at therapeutic, useful aspects

14 of drugs and chemicals.

15 Q. Would toxicology include the study of alcohol

16 and its effect on humans and the central nervous nervous

17 system?

18 A. Yes, sir.

19 Q. Have you had articles published, Doctor Bederka?

20 A. Yes, sir.

21 Q. About how many?

22 A. I've been partner in about 50.

23 Q. Okay. Have they been published in journals of

24 chemistry or toxicology or that kind of thing?

25 A. Yes.

 

Page 10

1 Q. Have done research abstracts?

2 A. I have.

3 Q. What -- Tell the jury what are they?

4 A. Well, most of the people that -- that do what I

5 used to do as a university-type person, you want to let

6 everybody know what you're interested in and what your

7 research work has been or is, so you go to meetings and you

8 give a talk; and that talk that you were going to give has

9 previously been published in some volume or as an abstract. It

10 tells in a very condensed form what you're going to talk

11 about when you do your presentation.

12 So over the years I have produced -- I don't

13 know -- 20 or so abstracts of various presentations that I

14 have either given or someone else whose name was on the

15 abstract may have given the presentation, and usually those

16 abstracts have a similar title to a subsequent article that

17 would be published in some journal.

18 Q. What is your experience consulting and testifying

19 on alcohol tests and the results of those tests?

20 A. Well, as I indicated, I've been doing this sort of

21 work off and on for about 25 years. During the last 10 or

22 15 years, the alcohol-related cases that I've dealt with

23 consulting perhaps a third or so of the number of cases that

24 I deal with.

25 Currently, I have about 30 different topics

 

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1 that I'm dealing with; and about 10 or so of those have

2 alcohol-related aspects. It can be alcohol in a -- in an

3 accident, it can be alcohol in carbon monoxide, alcohol in

4 drugs. It varies. It, obviously, varies depending upon the

5 circumstances.

6 Q. Have your opinions in this area been accepted in

7 courts, both state and federal, around the country?

8 A. Yes.

9 Q. Did one of the cases you testified in, was it the

10 Valdez oil spill incident?

11 A. Yeah, I had a -- I was deposed that area.

12 Q. Was that involving the intoxication of the captain?

13 A. Right.

14 Q. Have you often had a Mr. Richard -- Richard Jensen

15 testifying on the other side of some of these court

16 experiences?

17 A. I have come across his name in a couple of matters,

18 yes.

19 Q. This -- then consulting is your livelihood. I

20 assume you charge for coming here today?

21 A. Yes, sir.

22 Q. Have you, yourself, read articles and studied the

23 effects of alcohol on humans in your work?

24 A. Yes.

25 Q. Can you tell us about that?

 

Page 12

1 A. I have read articles, I have written, I have

2 lectured on the topic of alcohol and all -- all of that;

3 and -- and as a student, obviously, I had taken courses

4 where alcohol was part of the -- the pharmacology

5 curriculum.

6 Q. Okay.

7 A. So that's approximately about 30 years now of

8 alcohol-related intellectual interests.

9 Q. Ah-huh. Would you tell the jury the process that

10 occurs after a person ingests alcohol, just generally?

11 A. I think I can do that.

12 Q. Okay.

13 A. Well, we all -- we all drink when we drink various

14 products, and what you drink and in what form it is has some

15 effect on how the body handles it in terms of its rate of

16 absorption and so forth; but, in general, when one consumes

17 an alcoholic beverage, it -- it goes straight into the

18 stomach. If there's food in the stomach, it mixes with the

19 food and it will stay there as long as the body needs to

20 keep the food in the stomach.

21 If there is no food in the stomach, the

22 retention time for the alcoholic beverage in the stomach is

23 almost nothing; it passes pretty much directly through the

24 pyloric sphincter into the upper small intestine. While

25 there's alcohol in the stomach, there is a little bit of

 

Page 13

1 absorption through the blood vessels in the wall of the

2 stomach but it's minimal.

3 Once the alcohol is in the small intestine, the

4 upper few feet of the small intestine is where practically

5 all absorption occurs of foods, nutrients, liquids; but

6 there's also absorption all the way down. Not only is there

7 absorption, however, in the upper small intestine but

8 there's also secretions by the liver, by the pancreas, to

9 facilitate absorption.

10 So if you drink very concentrated alcoholic

11 beverages, usually the intestine tries to dilute that out to

12 minimize the toxic effects, apparently, and make the

13 solution in the -- in the intestine compatible with

14 absorption across the small intestine. So -- so there can

15 be a delay time if there's food and if -- and if it's a

16 concentrated beverage like a straight whiskey, for example.

17 But once the alcohol starts to be absorbed from

18 the upper small intestine, it goes into this blood vessel

19 mixture around that area; and all of the blood from the

20 upper small intestine goes directly to the liver. The liver

21 has first dibs on all the products that come through the

22 intestine.

23 There's some that goes and is absorbed through

24 a different system, but it's -- its' not a lot. It's called

25 the lymphatic system. so the liver passes most of the blood

 

Page 14

1 through but takes out and breaks down a lot of the things

2 that are in the blood. Alcohol, obviously, is a fuel for

3 the body. It's a very high-energy fuel.

4 So some of the alcohol going through the liver

5 is broken down by the liver; and what isn't broken down

6 passes on to the heart, the lungs, back to the heart, and

7 then it gets distributed around the body.

8 About half of all the blood that leaves the

9 heart goes to the heart -- goes to the brain and the

10 kidneys. So the brain gets the lion's share of the blood

11 that comes from the left heart. And the rest of the body,

12 the muscles, the fat deposits and so forth, they have a

13 lesser blood supply so it takes awhile for the alcohol to

14 get around and to accumulate in all those tissues; but the

15 brain and the kidneys get first shots at it.

16 So while there's alcohol in the intestines,

17 it's passing into the blood, into the liver, around the

18 body, and the body is breaking it down at the same time that

19 it's coming in. So you have a balance b between what's coming

20 in and what's -- what's getting broken down by the liver.

21 Once all of the alcohol has been absorbed or

22 more or less at about the time that it's finished being

23 absorbed, the alcohol level in the blood reaches its maximum

24 because there's no more coming in; and it's being broken

25 down by the liver and it's being excreted in the kidneys and

 

Page 15

1 a little bits going out into the breath.

2 So shortly -- shortly after or -- or about the

3 time that absorption is complete, the blood level of the

4 alcohol reaches its peak. Absorption isn't a smooth process

5 because of all the things that I have just mentioned. So

6 the blood level during absorption tends to vary a little if

7 you take blood samples during that time.

8 But once you reach the peak of the blood

9 alcohol concentration, then the level in the blood decreases

10 and the -- the decreasing part of the curve is much more

11 flat or smooth because it's not dependent on some of the

12 vagaries that we've already described.

13 It's pretty much the blood flowing around,

14 kidney function and liver function. So the down part of the

15 curve, which is called the elimination phase, is usually a

16 lot smoother than the absorption phase of the curve. And --

17 and we use this smooth nature of the elimination phase to do

18 various kinds of calculation, and that's been done for

19 quite some time.

20 Q. Okay. Generally, alcohol is -- is -- as it affects

21 human behavior, at a low level is it a depressant upon the

22 functions of the body or is it a stimulant?

23 A. Alcohol is -- is a chemical very much like a lot of

24 the anesthetic-type substances that are used. It's kind of

25 like ether. Structurally, it's very similar to ether; and

 

Page 16

1 ether breaks down and forms alcohol in the body when you're

2 being anesthetized.

3 So at low levels, practically all substances

4 have a slight stimulation effect on -- on the brain because

5 they interfere with inhibitory mechanisms in the brain. So

6 during anesthesia, for example, there is an excitatory phase

7 that one tries to get through real fast; and in many people

8 at low levels of alcohol there's also a transient excitatory

9 phase.

10 And some studies show that low levels of

11 alcohol actually facilitates performance in certain types of

12 tests; but beyond about .05 percent blood alcohol, no

13 systems seem to be made to function better. Alcohol at

14 those levels becomes a general depressant of the nervous

15 system; and many nerve-related system, which is called

16 psychomotor, anything that thinking and acting ins involved

17 becomes less functional than normal as the blood alcohol

18 level goes up.

19 And, obviously, if the blood alcohol level goes

20 high enough, you go to sleep or you die. The system just

21 stops; okay? So that's generally what we call a dose

22 response curve, and almost all chemicals behave in a --

23 in that kind of fashion. At a very low level, there's

24 no effect. At the intermediate level, you have some

25 effects; and at a very high level, you -- you can end up

 

Page 17

1 with death.

2 Q. After .05, what about ability to drive, is there

3 any impairment?

4 A. Well, there have been a lot of studies done on

5 so-called psychomotor functioning; and most systems are

6 affected above .08. And from -- from about .02 percent, you

7 start seeing negative effects of alcohol in some test

8 systems.

9 Q. Ah-huh.

10 A. But above about .08, at least half of those

11 psychomotor functioning systems are adversely affected; and

12 it would be different in different persons, obviously, and

13 at different times but the -- the probability work shows

14 that about half of the tests that I have had the ability to

15 deal with, about half of them are adversely affected at a

16 blood alcohol value of about .08 percent.

17 Q. Does the National Safety Council recommend any

18 level of alcohol where -- where there's a presumption of

19 intoxication?

20 MR. YAGLA: I would object to that. That's

21 not -- certainly not relevant to any issue in this case.

22 THE COURT: Objection sustained.

23 Q. With the rate of absorption and elimination, is

24 that pretty much the same in -- in individuals, even the

25 heavy drinker and the light drinker?

 

Page 18

1 A. Well, rate of absorption isn't always looked at.

2 It's mostly academic studies where -- where you have that.

3 But the elimination is very variable and, overall, my

4 experience is that it doesn't seem to matter whether you

5 were a heavy drinker or not or whether you were a -- a

6 long-time drinker or not. There is a lot of crossover.

7 So I generally use a range of loss of alcohol

8 from the blood that's pretty much the same for -- for

9 overall everyone, but it's a function of -- of the type of

10 accident that -- that I change it a little. Overall, it

11 seems to not matter whether you've been a heavy drinker or

12 not or whether you have drunk a lot over time. It -- It's

13 very difficult to make a -- a very clear statement in that

14 regard.

15 Q. Okay. Twelve-ounce beer, 3.2 percent of alcohol,

16 are there studies indicating the rate of absorption in

17 consuming that product?

18 A. Oh, yes. There are plenty of studies on -- on

19 absorption and blood levels with time.

20 Q. Okay. From those studies, do you have an opinion

21 as to the time it takes following the drinking of a beer for

22 the rate of absorption to reach its highest?

23 A. Yes.

24 Q. And what is that opinion?

25 A. If one has been drinking beer rather steadily for

 

Page 19

1 an hour or -- or a couple of hours, the studies that I'm

2 familiar with show that the peak level of the blood alcohol

3 occurs within 30 minutes and it can occur as quickly as five

4 or ten minutes after you've consumed the last part of that

5 beer.

6 Q. You mentioned .015. Is that a kind of a standard

7 rate of elimination of alcohol that is used in these

8 studies?

9 A. Well, .015 is an average rate of alcohol loss from

10 the body that a lot of people use. My review of the

11 literature leads me to use .02 percent per hour as a good

12 average, but I like to use .01 to .03 as a range for general

13 people and .02 to .03 for people who have been involved in

14 some traumatic injury.

15 Q. Would you explain to our jury the concept of

16 retrograde extrapolation?

17 A. I shall try. Retrograde extrapolation basically

18 means going backwards in time to try and predict what the

19 level of alcohol was at some time prior to when the sample

20 was actually drawn or when it was basically tested.

21 So, for example, if you had a person who was in

22 an accident at midnight, went to the hospital, blood sample

23 was drawn at 2:00, the alcohol in the sample is measured at

24 2:00, and you know that the person had stopped drinking at

25 11:00, based on what I've already said, the peak of the

 

Page 20

1 blood alcohol curve would have occurred before 12:00.

2 So from 12:00 to 2:00, the person was losing

3 alcohol because the liver was breaking it down and it was

4 going in the urine. So from the blood alcohol value at

5 2:00, using an average value of the rate of alcohol loss of

6 the range that I have already mentioned of .01 percent to

7 .03 percent, you can go backwards and predict what the

8 alcohol level was at midnight; --

9 Q. Are there --

10 A. -- and --and using that --

11 Q. I'm sorry.

12 A. --and using the process with a range of possible

13 values, if the value was, say, .1 at 2:00, you add these

14 increments per hour going backwards, so if it was .1 at two,

15 you add .01 and that would be point -- .11 at 1:00, .12 at

16 midnight.

17 If you want to get the range like I've

18 suggested at 2:00 going back to 1:00, you add .1 plus .3

19 so it becomes .13 at 1:00 and .16 at midnight. So at

20 midnight, the range of likely blood alcohol in that person

21 was between .12 and .16. And this range is -- is a accepted

22 range from literature that's published, and it has a

23 reproducibility of almost a hundred percent in -- in terms

24 of productiveness.

25 Q. Are there studies that have shown the validity of

 

Page 21

1 retrograde extrapolation, Doctor Bederka?

2 A. Sure.

3 Q. Can you explain some of those or what --

4 A. Well, the most current one is the example that I

5 just gave. If you use a range of loss of blood alcohol with

6 time between about .01 to .03 per hour and you go backwards

7 in time, which is retrograde extrapolation, you will be able

8 to predict what that alcohol level was.

9 And the article that I'm mentioning actually

10 measured these values and then tested to see if it could be

11 predicted. Not only that, they took the value at midnight

12 and using this range said what it should be at 2:00; and if

13 you use this rate of loss, it's right in that range

14 essentially a hundred percent of the time.

15 So this is a range for hundreds and hundreds of

16 people that have been studied over a long number of years,

17 and it doesn't vary out of that range very often but it can

18 because we're not all equal yet.

19 Q. Have you used what you've been explaining to the

20 jury to determine the amount of blood alcohol content at the

21 time of a collision in an automobile case?

22 A. Yes, sir.

23 Q. Done that frequently?

24 A. Quite often.

25 Q. Is there scien- -- scientific evidence and studies

 

Page 22

1 that your rely upon?

2 A. Definitely.

3 Q. Okay. Doctor Dubowski has been mentioned. Has he

4 written contrary to that or -- or -- and how long ago did he

5 do it, if he did?

6 A. Well, Doctor Dubowski has written an enormous

7 amount on the subject of alcohol and also on the subject of

8 drug testing. He's probably the most well-known

9 professor-type person in the country today on alcohol, and

10 he has some very substantive views on breath testing as well

11 as other topics.

12 He has a -- written an article that was -- I'm

13 aware of in 1976 where he's warned against using retrograde

14 extrapolation when the objective was to come up with a

15 single number that described a blood alcohol value. He did

16 not warn against using a range within which a blood alcohol

17 value might, in fact, be. So I have no quarrel with Doctor

18 Dubowski on any matters relating to that or his criticisms

19 of the breath test.

20 Q. Is that because you use a range and other people

21 that you've read about use ranges?

22 A. Most people use ranges. Some people like to get

23 more specific and come up with a number. It can be done,

24 if -- if you have -- if I use the example that I just gave

25 you where we have a blood sample drawn at 2:00 and, for some

 

Page 23

1 reason, another blood sample was drawn at 3:00 or 4:00, so

2 we have alcohol values over time, we know exactly how fast

3 the alcohol went out of that body.

4 So we take those numbers and go back to the

5 time that we're interested in; and, occasionally, we have

6 that information because several blood samples might have

7 been drawn from the person for various reasons. And as I've

8 indicated, if you use that range, you will be within the

9 range of the real value basically all the time.

10 Q. Okay. Have you prepared charts showing the signs

11 and symptoms on a human body of alcohol consumption?

12 A. Basically, I have.

13 Q. Okay. I'm going to -- I'm going to hand you what

14 we've marked as Exhibit 1100, and we can put it up there.

15 Is that a chart that you prepared Doctor

16 Bederka?

17 A. Yes. It's a blowup of a -- table that I had

18 prepared.

19 MR. GALLAGHER: Yeah. I'd like to offer

20 Exhibit 1100.

21 MR. YAGLA: I'd like to see it before it's

22 shown to the jury like that.

23 THE COURT: Okay. Can we have -- Have counsel

24 been provided with a smaller version of that or not?

25 MR. GALLAGHER: No.

 

Page 24

1 THE COURT: Please, if we could have it shown

2 to counsel first.

3 (Whereupon the exhibit was reviewed by

4 counsel.)

5 MR. YAGLA: May we voir dire preparatory to

6 making an objection?

7 THE COURT: Yes.

8 VOIR DIRE EXAMINATION

9 BY MR. YAGLA:

10 Q. Doctor Bederka, is this an average that you've

11 drawn up or what -- what does this chart represent?

12 A. This item that you're looking at?

13 Q. Yes, sir.

14 A. This table is an excerpt of data that I evaluated

15 for approximately 80 types of psychomotor function testing

16 form a book that was published a few years ago, and the

17 objective of putting this table together was to be able

18 to demonstrate at what levels of blood alcohol concentration

19 do psychomotor functions become measurably less than

20 normal.

21 So these are what I would call threshold values

22 for decreases of psychomotor function that are statistically

23 significantly measurable. It is not when one is totally

24 incapacitated; it is when one is measurably less than

25 normally functioning. so these are thresholds.

 

Page 25

1 Q. I -- I guess I didn't make the question very

2 clear.

3 Are these -- you -- You copied this from a

4 book. Is that what you're telling us?

5 A. Those are summaries of many articles, yes. It's

6 basically from a summary in a book by Crow and Batt.

7 Q. Do you know if they representing averages or

8 the threshold for the most-sensitive person or what is it

9 that this shows?

10 A. As far as I understand them, they were averages.

11 They have to be averages of groups that were studied and

12 when there were functions that were measurably decreased.

13 Q. And the effect of alcohol -- a given amount of

14 alcohol on a given person can vary significantly from person

15 to person; can't it?

16 A. Absolutely.

17 Q. This has nothing to do with Mr. Rokes; does it?

18 A. Personally?

19 Q. Correct.

20 A. I don't think he's part of that study.

21 Q. Okay. And there is a wide variance form person

22 to person even with the same person at different

23 occasions?

23 A. Definitely.

25 Q. When was it that you gave this summary or synopsis

 

Page 26

1 to Mr. Gallagher?

2 A. Last evening, I believe.

3 MR. YAGLA: Your honor, I would object for two

4 reasons. One, it's not relevant and may tend to confuse the

5 jury or in their evaluation they may consider that this

6 somehow represents Mr. Rokes when there is a wide variance

7 from person to person; and the other is it's an expert

8 opinion that's been disclosed within 30 days prior to trial

9 without disclosure to -- to defense counsel. I think Rule

10 125 requires that matters of this nature be disclosed at

11 least 30 days prior to trial.

12 For these two reasons, we move for the

13 exclusion of Exhibit 1100.

14 THE COURT: Mr. Hellman, --

15 MR. HELLMAN: No objection.

16 THE COURT: -- do you have any objection?

17 MR. HELLMAN: No.

18 THE COURT: Plaintiff's counsel care to respond

19 to that portion of the objection pertaining to nondisclosure

20 consistent with Rule 125?

21 MR. GALLAGHER: Yes. He has -- We have

22 furnished them with two reports that he's given in which

23 these things are mentioned, the effects of alcohol and the

24 various opinions that he has. They have two letters from

25 him, and he'll be testifying from his knowledge and

 

Page 27

1 experience as to signs and symptoms of alcohol at certain

2 levels.

3 THE COURT: Okay. Do you have available for

4 the Court to examine the --

5 MR. YAGLA: Got them right her, Judge.

6 THE COURT: -- letters?

7 (Whereupon the letters were reviewed by

8 the Court.

9 THE COURT: Counsel approach, please.

10 (Whereupon an off-the-record discussion

11 was held at the bench.)

12 THE COURT: At this point in time, the Court

13 does sustain the objection made by defense counsel for Mr.

14 Rokes.

15 Please ask a new question.

16 MR. GALLAGHER: You bet.

17 DIRECT EXAMINATION CONT.

18 BY MR. GALLAGHER:

19 Q. Was your assignment here to demonstrate the level of

20 intoxication of Mr. Rokes at the time of the collision?

21 A. Yes.

22 Q. Would you, Mr. Bederka, get out the materials that

23 were sent to you and that you examined in order to come to

24 that opinion?

25 Do you have notes on that?

 

Page 28

1 A. Yes.

2 Q. Would you read them? I'm sorry.

3 A. The items that I went through?

4 Q. Yes, ah-huh.

5 A. Well, --

6 Q. Sorry.

7 A. -- I have received accident reports; I have

8 received copies of statements of witnesses; I have received

9 narratives by the various officers; I have received and

10 reviewed, of courts, hospital and paramedic reports on Mr.

11 Rokes; I have evaluated depositions. The most recent

12 depositions are of Miss Glade, Mr. Rayburn, and a

13 supplemental evaluation, the Brasfields, Miss Girsch, a

14 Kleinheksel, Doctor Jensen.

15 I have, obviously, a subpoena that I looked

16 at. I have looked at my report and supplemental report. I

17 have reviewed 22 scientific article and the review article

18 I wrote on alcohol.

19 Q. Okay. Do you have the times that are important

20 here that -- in order for you to come to your opinion?

21 Would you write those on the board for us?

22 A. These numbers are, I believe, in the report that I

23 wrote. Apparently, alcohol consumption occurred from about

24 8:00 until about 10:30 in the evening. The accident

25 occurred some time around 1050 in the evening. Blood was

 

Page 29

1 drawn after midnight, about 12:30. These times are the

2 times that I basically used to go about trying to ascertain

3 various thing about alcohol and alcohol effect.

4 Q. Okay. Do you -- Did you find the tests that were

5 made of Mr. Rokes's blood to be accurate and reliable, the

6 techniques that were used?

7 A. Certainly. They're standard -- standard procedures

8 that are generally followed.

9 Q. Why is the time up there important to you in your

10 analysis of those times?

11 A. Well, we -- from the record, from the files that I

12 have read, it's generally agreed upon that -- that during --

13 during this period of time roughly (indicating) was the

14 drinking phase and the accident occurred about here so,

15 as -- as what I indicated earlier for beer drinkers, the

16 peak alcohol value occurs within half an hour after one

17 stops drinking.

18 So it peaks about here some time (indicating),

19 and so we have this period of time, which is bout an hour

20 and a half, which would be the elimination phase where the

21 alcohol level is going down because of the breakdown by the

22 liver and -- and secretions, excretion in the urine. So

23 this is pretty much what we've been talking about so far.

24 Q. Okay. From the information that you examined and

25 the times that you garnered from that information, do you

 

Page 30

1 have an opinion based upon reasonable certainty and the

2 science of toxicology, based upon your training, knowledge

3 and experience, as to the blood alcohol content of Tracy

4 Rokes's blood at the time of the collision?

5 A. Yes.

6 Q. And would you tell the jury that opinion?

7 A. His blood alcohol value was likely in the range of

8 .125 to .155 percent.

9 Q. Would you tell our jury why you come to that

10 conclusion?

11 A. Certainly. There were blood samples that were

12 taken at -- after midnight, and those were analyzed for

13 alcohol at two different places. The blood sample taken

14 from the hospital -- taken at the hospital and analyzed at

15 the hospital gave a number of 120, over .12 percent.

16 That was for a portion of the blood that's

17 called plasma, and that has all the blood cells basically

18 removed from it. So it's primarily the water phase of

19 blood.

20 The law is written where blood alcohol values

21 must be compared in terms of whole blood, which is the cells

22 plus everything else together; and many studies have shown

23 that if you spin the cells out of a blood sample and only

24 measure what's left, which is the water phase of the blood

25 which is usually the plasma, that that will be higher in

 

Page 31

1 alcohol because you've taken out the fatty cells. And

2 that's higher by about 10 to 20 percent than you would have

3 measured if you had been able to analyze the whole blood

4 sample. So you you have -- Excuse me.

5 Q. You and just move that.

6 A. So if you take the 120 which is the same as .12

7 percent, and you correct this because it's actually higher

8 than it would be if it were a whole blood, I think it -- it

9 comes out to be about .10 --Wait. I haven't done this for

10 awhile -- one-oh-three to about 0.109 or something like

11 that.

12 This is -- these --these -- This range is 10-

13 to 20-percent less than this (indicating) because this is a

14 sample of -- I'll get grease all over it here -- this is a

15 plasma and this a a whole blood (indicating). So -- so

16 this is what the law is written for, whole blood samples.

17 Now, some time later another sample was

18 tested. It was a whole blood sample, and the value for

19 that was oh-eight-seven percent. This whole blood sample

20 had been stored in a fluoride-containing tube, and it's

21 known that if you store whole blood samples in

22 fluoride-containing tubes this usually reduces the alcohol

23 content by 10 to 20 percent. It's -- it's called the

24 salting-out phenomenon.

25 So what you have to do is you have to correct

 

Page 32

1 this value by this amount (indicating) and that comes out to

2 be, I think, .097 to 0.107, something like that. So it you

3 look at all of the numbers that were determined on the

4 samples taken from Mr. Rokes, the plasma sample done by the

5 hospital corrected to be the equivalent of a whole blood

6 sample, this is the range (indicating). These may be off by

7 a little. I don't remember the exact numbers.

8 And if you take the whole blood sample analyzed

9 by Mr. Rayburn which used head-space gas chromatography,

10 which is a standard technique, it's known to lead over time

11 to results that are lower than they should have been. So if

12 you correct that according to what the literature allows you

13 can correct it, you see that the whole blood sample had

14 basically the same values from the two laboratories.

15 And if you take those numbers, these ranges

16 (indicting), and you go back an hour and a half and you

17 add -- excuse me, if you add these amounts per hour, which

18 is what the body's been breaking down and eliminating

19 (indicating), to these ranges, if this were a normal case,

20 this is what you would use.

21 I have used the range slightly different than

22 that. I think it is one-four, .029, or something like

23 that. I indicated in -- in the little while earlier that if

24 you have accident victims who have been fairly traumatized,

25 the body seems to break down alcohol a little faster and

 

Page 33

1 there is a little higher range than the normal range for

2 people who haven't been involved in accidents.

3 So in general, I use .02 for the average in

4 normal people and .025 for the average in trauma victims,

5 which is not a big deal, but it's -- it's -- it's definitely

6 real; and there were many articles in the literature that

7 allow one to do that.

8 So if you add those values that I just

9 indicated to these numbers in general (indicating), at the

10 time of the accident you get a range of approximately this,

11 somewhere between one-two-five and one-five-five, for the

12 whole blood equivalent alcohol value; and this is standard

13 sort of stuff that's available for anyone that wants to read

14 the literature and do it.

15 Q. So those opinions are based on your scientific

16 research and the studies that you've examined --

17 A. Yes.

18 Q. -- and studied?

19 A. Right.

20 Q. What are the signs and symptoms that you've --

21 you've listed these in your report -- what are they that

22 would affect the human at the level .125, point -- pardon

23 me, zero-one-two-five and zero-one-five-five?

24 MR. YAGLA: Objected to. I -- I think that

25 goes beyond the scope of -- of the opinions expressed; and

 

Page 34

1 Mr. Gallagher says it's in the report, but I don't see it.

2 MR. GALLAGHER: Can we approach?

3 THE COURT: Yes, please.

4 (Whereupon and off-the-record discussion

5 was held at the bench.)

6 MR. YAGLA: Excuse me. I'll withdraw the

7 objection. I didn't get to the last page.

8 THE COURT: Do you recall the question, sir?

9 THE WITNESS: I'd like to hear it again.

10 THE COURT: We'll have the reporter read it

11 back.

12 (Whereupon the requested portion of the

13 record was read.)

14 A. Okay. There are certain functions that are

15 affected by alcohol, as we've earlier mentioned. Those that

16 primarily related to driving clearly are ability to see,

17 ability to judge distances. Ability to see would include

18 peripheral vision, being able to detect motion outside of

19 your focus range. Also, the ability to think clearly,

20 aspects of memory that could come into -- to -- to effect

21 later on, basically, and general psychomotor functions that

22 relate to reaction times.

23 And -- and reaction time is very complicated.

24 It's not just a knee-jerk kind of reaction. It involves a

25 lot of thinking and decision making; and as I indicated

 

Page 35

1 earlier, above a blood alcohol value of .05 most of these

2 systems are adversely affected. They're slowed down. And

3 above a blood alcohol value of .08, half of these systems

4 are significantly less than normally functioning.

5 And when you get to a blood alcohol value

6 that's .125 or .155, almost no neurological system is

7 normally functioning anymore because of the depressant

8 effect of alcohol. So -- And as I indicated earlier, this

9 varies person to person but, on average, at those levels of

10 alcohol something's going to be malfunctioning to a greater

11 or lesser degree.

12 So those systems that are more practiced will

13 be less affected. Because if you practice doing things,

14 whether you're sober or drunk, you get good at it. But

15 those things that you don't practice life having accidents

16 you're not too good at avoiding; but just regular driving

17 which is a -- quite an unconscious act actually, it's no big

18 deal, but it's when something abnormal occurs during that

19 driving that, bang, that's when the accidents occur.

20 So, for example, we talked about peripheral

21 vision. People who are under the influence of alcohol tend

22 not to see things that are happening in the periphery. They

23 were only -- would only be able to focus on one thing at a

24 time.

25 So their ability to be vigilant, to perceive,

 

Page 36

1 to do multiple things at one time, are radically altered

2 and -- and it -- In the purely vision sense, it would be

3 called tunnel vision because you -- you see the

4 little -- the little -- But from the brain's perspective,

5 the brain is limiting what it can process. So it's not

6 allowing you to see things that are going on outside of

7 a very limited frame, and those things that you're trying

8 to do will also be much slower in being able to accomplish.

9 One of the other things that's affected with

10 higher levels of alcohol is distance judging. You can't

11 tell how far something is. In addition to not being able to

12 know how far it is, your ability to evaluate the process of

13 trying to think about how far it is is also slowed down.

14 This is a component of reaction time.

15 Every aspect of your actions are slowed; and

16 this results in a decreased ability to react to things to

17 function, to tap a switch when you're asked to tap a switch

18 as a result of something happening. So depth perception,

19 peripheral vision, vision in general, is altered because

20 the -- the -- the eyes normally flutter a little side to

21 side and up and down and that's how the brain seems to be

22 able to focus on things.

23 Alcohol makes it flutter and flip a lot more so

24 you have trouble seeing things clearly, and then that

25 happens with alcohol. I'm trying to think of some of the

 

Page 37

1 other things that clearly apply to this -- this

2 circumstance.

3 MR. YAGLA: Excuse me, Mr. Bederka, --

4 A. Those are the -- those are the most --

5 MR. YAGLA: -- I'd like to interpose an

6 objection. A couple hours ago you were asked a question to

7 list the things as you had in your report, and I guess what

8 I would object to now is it's been quite a speech and he has

9 amply covered the things listed that was asked of him.

10 So I would move to maybe have the witness quit

11 with his speech at this point because he's more than

12 adequately answered the question.

13 THE COURT: Okay. Objection sustained.

14 Please ask a new question.

15 MR. GALLAGHER: Sure.

16 Q. Were you also asked and did you write a report

17 concerning the amount of alcohol that Mr. Rokes would have

18 consumed to reach the levels that you testified to between

19 8:00 and 10:30 p.m.?

20 A. Yes.

21 Q. And would you tell the jury how you went about that

22 task and -- and what the result was?

23 A. Yes. The calculation of -- of the alcohol content

24 of -- of a person is just simply arithmetic, and the -- one

25 of the books -- the book that I mentioned, Crow and Batt,

 

Page 38

1 has a table in it so you don't have to do anything, really.

2 But if you know at some period of time what the

3 blood alcohol value is in the -- in the body and -- and

4 that's a equilibrated value, the body's pretty well got

5 alcohol everywhere, it's not just sitting in one spot, we

6 know exactly within some reasonable ranges how much water is

7 in the body, how much fat is in the body, et cetera, et

8 cetera, go given this number, you can take into account the

9 amount of water in the body and you can tell exactly how

10 much alcohol is present in that body.

11 You convert that into how much alcohol is

12 present in a beer. Now, with this number here (indicating),

13 about .1, that comes out to be about six beers. So at this

14 time --

15 Q. When the test was taken, you're talking about?

16 A. Right. At this time when the blood sample was

17 drawn, that's how many beer equivalents of alcohol were

18 present in his body at that time. So he had to have had

19 more than six beers during this time in order to have six

20 still in the body at this time (indicating).

21 Q. Can you put the time of the collision on there?

22 It's kind of faded out.

23 A. Time of the collision is -- is here (indicating).

24 Q. You're talking about now you're giving an opinion

25 as to the number of beers Mr. Rokes would have had to have

 

Page 39

1 had at 10:50 at the time this collision occurred?

2 A. So let me finish here. When the sample was drawn,

3 there was still the equivalent alcohol of six beers in his

4 body. The body can break down about two-thirds of a drink

5 of alcohol per hour. If you drink a beer or if you drink a

6 single shot of whiskey or if you drink a four-ounce glass of

7 wine, about two-thirds of that alcohol, on average, will be

8 broken down per hour after you've consumed it.

9 So from 10:00 until 2:30 -- it's four and a

10 half hours -- so during this time, about three more beers

11 were broken down by his body during that time. So he had to

12 have had at least nine beers in order to get to that point,

13 and that's just arithmetic.

14 Q. If the record would be in this case that Mr. Rokes

15 exhibited -- witnesses have testified as to the odor of

16 alcohol, bloodshot eyes, staggering, would those be

17 consistent with the level of alcohol you've told the jury

18 about?

19 A. Yes, sir.

20 MR. GALLAGHER: That's all the questions we

21 have.

22 Counsel may take the witness.

23 THE COURT: Before I call for cross-

24 examination, we're going to stand and take a stretch break.

25 (Where upon a stretch break was taken.)

 

Page 40

1 THE COURT: It appears that there is -- it is

2 appropriate at this point in time we will take an official

3 mid-morning break. We'll plan on being in recess

4 approximately 15 minutes, hopefully resuming at 11:30 then.

5 So remember the admonition you have been

6 given. We are in recess.

7 (Whereupon a recess was taken.)

8 THE COURT: I would just remind you, sir, that

9 you remain under the oath throughout the proceedings.

10 Cross-examination?

11 CROSS-EXAMINATION

12 BY MR. YAGLA:

13 Q. Mr. Bederka, do you -- do you do breath test --

14 testing as well as alcohol testing?

15 A. No.

16 Q. Do you do alcohol testing?

17 A. I don't do alcohol testing.

18 Q. Between -- is -- Is the reliability of -- of breath

19 testing the same as alcohol?

20 A. No, sir.

21 Q. Or blood?

22 A. Breath testing is a disaster.

23 Q. That's -- that's certainly accepted in courts as

24 competent evidence; isn't it?

25 A. What it is --

 

Page 41

1 MR. GALLAGHER: Just a minute, Your Honor. I

2 don't know how we do that and how is that relevant to any

3 issue in this case, how he would know that.

4 MR. YAGLA: We thought we'd get a certain

5 amount of latitude on cross-examination of a hostile,

6 adverse, expert witness here. I don't know how much

7 constraints --

8 MR. GALLAGHER: May we approach?

9 THE COURT: You may.

10 (Whereupon an off-the-record discussion

11 was held at the bench.)

12 THE COURT: I am going to overrule the

13 objection and allow the -- the witness to answer.

14 Do you recall the last question by Mr. Yagla?

15 I'm not sure if he was even allowed to complete it. We'll

16 have the court reporter pick up what portion was stated on

17 the record prior to objection.

18 MR. YAGLA: No, I'll withdraw it. It will be

19 quicker to start over.

20 THE COURT: Okay.

21 Q. Mr. Bederka, what -- what would be more reliable

22 for us to determine blood alcohol content at some prior time

23 before the testing?

24 Would it be some retrograde extrapolation or an

25 actual test?

 

Page 42

1 A. Oh, an actual test is obviously --

2 Q. Thank you.

3 A. -- preferable.

4 Q. Thank you. Could you tell us using your retrograde

5 extrapolation what the blood alcohol content was at, say,

6 11:30?

7 A. I had it at approximately one-two-five to

8 one-five-five at approximately 11:00, which is about 10:50.

9 So if you subtract from each of those a half an hour's worth

10 of metabolism -- okay. So from the one-two-five, I subtract

11 point zero -- oh-oh-seven -- it's about .117.

12 Q. Excuse me.

13 A. I ought to write it down perhaps.

14 Q. Well, I was just going to do that. Let me -- Is it

15 e-r-k-a?

16 A. Yes, sir.

17 Q. At 11:30, it's -- what did you say? -- point --

18 A. Probably one-one-seven. I think I used -- Let me

19 see what I used. Oh-one-four -- Okay. Yes, oh-oh-seven

20 would be half an hour. So one-one-seven, roughly

21 one-one-eight. Then from the other -- the other number,

22 from the one-five-five, subtract about oh-one-five. So it

23 would be abut one --.140.

24 Q. .140?

25 A. Right. That would be the -- roughly the range at

 

Page 43

1 approximately 11:30.

2 Q. That's using your -- your extrapolation?

3 A. That's -- Well, that would be going the other way,

4 Other --

5 Q. Aren't you going back from 12:30? Oh, no, you're

6 going forward.

7 A. Yes, we're actually going down; but it's going

8 forward.

9 Q. How would you do it going back or can you? Would

10 you come up with -- You'll come up with a different number

11 going back?

12 A. You'll come up with roughly the same number.

13 Q. Well, tell us how -- how would you go about it,

14 just generally, before you do the math for us?

15 A. Well, we went through that.

16 Q. Well, I didn't follow it.

17 A. If -- if you -- if you use a range for the rate of

18 alcohol loss form the body and that range varies from .01

19 percent per hour to .03 percent per hour, so for every hour

20 you would add that if you're going backwards because the

21 rate has been decreasing, you have to make it up by adding

22 to it. so if it was .110, you'd add .01 and you get .120.

23 If it was one-one-oh, you add .03 and you get

24 .14. So it's about what we have there, roughly. When I did

25 this in my report, I didn't use one-one-oh because this is a

 

Page 44

1 trauma case. I used a slightly higher value.

2 Q. Now, what was that, if we go back from --

3 A. I have that.

4 Q. --12:20 to 11:30? What -- what --

5 A. I have that.

6 Q. What is it going back?

7 A. I have it in my report exactly. I had here at, oh,

8 11:30 somewhere between one-one-seven and one-four-oh.

9 That's about the same, one-one-seven and one-four-oh.

10 UNIDENTIFIED JUROR: Close enough.

11 MR. YAGLA: Satisfy you?

12 Q. Is that going backwards or --

13 A. Either way.

14 Q. Is that the one in your report going backwards?

15 A. My report went backwards.

16 Q. But an actual test would be more accurate at around

17 11:30.

18 A. It could give you a real number. Not a range.

19 Q. Mr. Bederka, what -- you have essentially one

20 number to work with, is that correct, or one number that you

21 did work with, the .087 determined by the lab or .120

22 determined by Sartori Hospital, one sample taken at 12:30?

23 A. I've worked with both of those numbers, yes.

24 Q. Okay. But it was one sample?

25 A. They were different samples.

 

Page 45

1 Q. Taken at the same time?

2 A. Right.

3 Q. Do you think they tested different samples?

4 A. Sartori's sample was used by Sartori. Rayburn's

5 sample was used by Rayburn. I they they were different

6 tubes.

7 Q. How do you -- how do you know that when he didn't

8 know whether he tested a different blood sample or -- or the

9 same as them?

10 How do you now that his was different?

11 A. You -- you don't split a tube. You draw tubes of

12 blood.

13 Q. Yeah.

14 A. They're vacu- -- vacutaner (phonetic) tubes. You

15 stick it in the vein and it fills up, and they -- they

16 usually draw as many as they need. I think the police kit

17 requires two tubes. The laboratory generally requires a

18 tube because they're going to get it done right away.

19 Q. Well, did they use one of those two tubes?

20 A. I don't know. But I'm fairly sure that they didn't

21 analyze the same tubes. That would be very unusual. The --

22 the blood tube at the hospital is generally thrown away.

23 The tube at the crime lab is maintained. That's the

24 standard chain-of-custody protocol usually.

25 Q. I --

 

Page 46

1 A. But they're drawn at the same time.

2 Q. And then you tried to compare the different

3 numbers that they got from the blood drawn at the exact same

4 time. --

5 A. Right.

6 Q. -- a difference of .087 or .120?

7 A. Yes.

8 Q. And you thought the one-two-oh was too high because

9 they were taking a percentage of not whole blood but a

10 percentage of something that had just as much alcohol in it

11 but less volume.

12 Is that a --

13 A. Well, it was -- It wasn't too high. It was higher,

14 because of the sample that was analyzed, which was -- which

15 is known.

16 Q. Well, isn't it that it was -- it was higher than

17 what his actual blood alcohol content was because what they

18 were testing has alcohol from his blood but it wasn't all

19 the blood from the sample; some of it had been spun out?

20 A. Well, right, it wasn't whole blood. That's why I

21 did the conversions.

22 Q. Okay.

23 A. When you get rid of the cells, it's no longer whole

24 blood; it's -- in this case, it's plasma. It could have

25 been serum, but they didn't do serum.

 

Page 47

1 Q. So -- well, now we've -- We were told earlier

2 that -- that plasma and serum are one and the same thing.

3 Are you telling us that they're different?

4 A. They give the same result. but they're radically

5 different.

6 Q. What's the difference between plasma and serum?

7 A. If you take a whole blood sample that has an

8 anticoagulant in it and you spin it down, the cells float to

9 the top and the bottom part is a tan-colored liquid called

10 plasma. It contains no cells, but it contains all of the

11 clotting proteins necessary for blood clotting.

12 If you take a whole blood sample with no

13 anticoagulant in it and you make it clot, you get all of the

14 cells, all of the clotting proteins, clumped as a little

15 rubber ball; and you get a very clear, straw-colored fluid.

16 Both serum and plasma are like 99-percent

17 water. So the difference in the alcohol content is nothing,

18 but when -- And that's why there -- they give you the same

19 alcohol value, because they have almost identical amounts of

20 water; whereas, the whole blood has all the fatty cells so

21 the water content is less.

22 Q. Now, you're telling me the difference between

23 plasma and the whole blood?

24 A. Right.

25 Q. You said that there's a difference between plasma

 

Page 48

1 and serum. We've heard others say earlier in this trial

2 that plasma and serum are one and the same thing?

3 A. Well, you're hearing half of what I said. Plasma

4 and serum are different, but the alcohol content is

5 indistinguishable.

6 Q. How do plasma and serum differ?

7 A. I just explained it. Plasma contains all of the

8 proteins necessary for clotting; it only has the cells

9 removed. Serum is obtained when you let the whole blood

10 clot. So all of the proteins glom together with all the

11 cells and you get this -- it's really like a rubber ball,

12 and that's clot.

13 So plasma is not clear, but serum is perfectly

14 clear. It has no large molecule left in it that reflect

15 light when you pass light through it.

16 Q. Do you know which they tested at Sartori?

17 A. Plasma.

18 Q. Mr. Bederka, you've said that you've -- you've

19 reconciled these two different numbers, .087 and .120, and

20 part of that reconciliation is reducing the .120 because

21 they were testing plasma but treating it as if it were whole

22 blood.

23 Is that a fairy statement?

24 A. No. They were -- They did plasma because that's

25 what they did, and the law wants you to turn it into whole

 

Page 40

1 blood so you turn it into whole blood.

2 Q. I guess that's the point I'm trying to make. The

3 .120 is too high because it's a test of the alcohol and the

4 plasma --

5 A. Right.

6 Q. -- rather than what the alcohol would be if it were

7 in whole blood; it's too high?

8 A. Right. It is exactly the value of the alcohol in

9 his plasma, but it would have to be corrected for the cells

10 if you were doing it as a fraction of whole blood. It's

11 very straightforward, right.

12 Q. Which -- which Sartori failed to do?

13 A. No.

14 Q. Are you --

15 A. They reported plasma alcohol.

16 Q. They did not --

17 A. That's what they report.

18 Q. They did not do the conversion, though, to give you

19 blood alcohol content of whole blood?

20 A. Right. It wasn't reported as whole blood. It was

21 reported as plasma.

22 Q. Right. And they did not convert it; you did?

23 A. True

24 Q. Now, the other thing that you did to reconcile

25 the two results and come up with something somewhat the

 

Page 50

1 same is you increased the Department of Criminal

2 Investigation's finding of .087, increased that because

3 there was fluoride --

4 A. Right.

5 Q. -- in the tube?

6 A. Right.

7 Q. Now, just before you testified, Mr. Rayburn who did

8 the testing at the state said that the .087 would be either

9 slightly higher or unchanged if the test had been done at

10 Sartori correctly, is how I interpret that.

11 Do you disagree with that?

12 MR. GALLAGHER: I'm going to object as a

13 misstatement of the record, Your Honor. That's not what he

14 said.

15 THE COURT: Well, the record will speak for

16 itself.

17 I'm going to ask that you rephrase the

18 question, Mr. Yagla.

19 Q. Mr. Rayburn just before he left the stand and

20 before you took his seat said that that -- that that test of

21 .087 if it had been done promptly -- now, I'm assuming at

22 the hospital by him using his gas chromatograph, rather than

23 waiting over a 25-day period -- that it would be only

24 slightly higher or unchanged.

25 Are you disagreeing with that?

 

Page 51

1 A. I don't think so.

2 Q. But yet you go ahead and increase it from .087 up

3 to about .1?

4 A. Well, he's telling you what might have been, and

5 I'm telling you what was; okay? When you draw a blood

6 sample into a tube that contains sodium fluoride as the

7 anticoagulant, you get what's known as a salting-out of the

8 which means that the fluoride pushes the alcohol out of the

9 water, makes it a lot higher in the gas phase, and it sneaks

10 out of the tube over time.

11 And -- and that's what leads to these low

12 values over time, and that can happen within hours. So if

13 he had used his technique of headspace gas chromatography on

14 exactly the same sample that Miss Glade use, they would

15 have come up with exactly the same numbers, plus or minus

16 two or three percent.

17 Q. I spent considerable time reading a book and 11

18 articles looking for the effects of fluoride and alcohol --

19 blood alcohol testing, and I found nothing.

20 Is this something that's been reported by

21 anyone other than you?

22 A. I never reported it. I have an article that

23 describes it, sir.

24 Q. Has that been accepted by anybody?

25 A. It's published in the scientific literature.

 

Page 52

1 Q. And what do you mean in the scientific literature?

2 Where was it published?

3 A. It's about 10 years old.

4 Q. Where was it published?

5 A. I can give you a copy of it.

6 Q. Where was it published?

7 A. I don't remember right offhand. I have a copy

8 here.

9 Q. You -- Would you agree that there's probably no

10 other toxic substance that has been studied more than --

11 than alcohol?

12 A. It's one of the leaders. I don't know if I could

13 say it's the leader.

14 Q. Well, can you think of any that have been studied

15 and written about more than alcohol?

16 A. Maybe aspirin, iron. There's a lot of stuff out

17 there. I could do a search for you, if you'd want.

18 Q. Well, I don't think the jury would want to wait for

19 you to do that.

20 It's -- it's certainly been something that's

21 been studied most of this century and written about

22 extensively; right?

23 A. Yes, sir.

24 Q. And you've only found one article published over --

25 what did you say? -- 10 years ago that said that -- that

 

Page 53

1 fluoride has some effect and you've got to add in more

2 alcohol?

3 A. No one ever looked for it.

4 Q. So you are the guy that found it?

5 A. No. I'm just telling you what was reported in the

6 literature.

7 Q. Do you know of any other toxicologists or

8 pathologist that adds anything in because the blood that was

9 tested was stored with fluoride?

10 A. No.

11 Q. But yet you do that so that you can get these

12 numbers to come together?

13 MR. GALLAGHER: It's object to as

14 argumentative and improper.

15 THE COURT: Sustained.

16 Q. You're telling me this jury then that if any of the

17 other experts in this field except for you and the fellow

18 that wrote an article more than 10 years ago were to analyze

19 this, they would have a discrepancy between the Sartori

20 number and the State DCI lab number?

21 A. Predictably.

22 Q. Because nobody else but you and this other fellow

23 have factored in the elimination of alcohol because it's

24 stored with fluoride?

25 MR. GALLAGHER: Objected to as repetitious and

 

Page 54

1 argumentative. He's already answered that.

2 THE COURT: Objection sustained.

3 Q. Who is this Widmark fellow we keep hearing about?

4 A. It's a Swedish guy. He published alcohol studies

5 about 50 years ago that have been utilized very extensively

6 during this period of time, very -- Probably did some of the

7 first really detailed work on alcohol along with another

8 Swedish guy, Goldstein.

9 Q. And -- and now we hear abut Dubowski quite a bit

10 too; don't we?

11 A. Yes, sir.

12 Q. Would those be the two leaders of this century in

13 this area, do you think, Dubowski and -- and Widmark?

14 A. There's another Swede called Jones that does better

15 work than Dubowski does; but Dubowski's about 80 years old,

16 I think now, so he's been around most of this century.

17 Q. So you'd include Jones in there, and those would

18 kind of be the big three for the --

19 A. I would say that's -- that would cover the really

20 heavy-duty stuff that's been done.

21 Q. Now, do I understand correctly that -- that your

22 theory or your opinions are based, in part, on the idea that

23 from the time you drink your last alcohol until you reach

24 your peak that about a half hour expired, ten minutes to a

25 half an hour?

 

Page 55

1 A. Right.

2 Q. Would you agree that Widmark and Dubowski both

3 say -- well, that Widmark says 50 minutes to 80 minutes and

4 Dubowski says an hour to an hour and a half?

5 MR. GALLAGHER: Objected to as hearsay. No

6 proper foundation has been laid.

7 THE COURT: Objection sustained.

8 MR. YAGLA: Hearsay of a -- of a treatise he's

9 accepted as authoritative?

10 MR. GALLAGHER: I just don't think we should

11 have speaking objections.

12 Can we -- can we approach?

13 THE COURT: You may approach.

14 (Whereupon an off-the-record discussion

15 was held at the bench.)

16 (Whereupon a book was presented to

17 the witness.)

18 Q. This is the Widmark book; isn't it?

19 A. Yes, sir.

20 Q. Okay. Would you turn to page 64?

21 A. (The witness complied.)

22 Q. Let's see if I can help you find what I'm looking

23 for.

24 Do you see this continuation ending on page 64

25 of a study -- of his report of conversion of alcohol in the

 

Page 56

1 body and doesn't he say, "To summarize the, we can say that

2 when 30 to 50 -- excuse me, 50 grams of alcohol is taken in

3 a volume of 100-1,000 cubic centimeters on an empty stomach,

4 the absorption period lasts 50 to 60 minutes. In most,

5 cases longer than -- no longer -- no period longer than a

6 hundred and ten minutes has been observed"?

7 A. Well, --

8 Q. Does he say that or not?

9 A. I don't know what beverage is being consumed.

10 Q. Mr. Bederka, I didn't ask you if you knew whether

11 or not -- what beverage was being consumed.

12 I'm asking you if that's what he said the

13 period of ab -- of absorption is?

14 A. With his study, it might be true.

15 Q. Are you saying that there's a greatly significant

16 difference between beer and other types of alcohol?

17 A. Can be dramatic differences.

18 Q. And you're faulting him then for not drawing a

19 distinction between them?

20 MR. GALLAGHER: I object to that as

21 argumentative. He wasn't involved in -- Excuse me.

22 THE COURT: Objection sustained.

23 Q. Many other experts in your field use the same time

24 elimination regardless of the type of alcohol that's

25 consumed; don't they?

 

Page 57

1 A. The elimination time?

2 Q. Correct.

3 A. Doesn't matter. Once it's in there, it's alcohol.

4 Q. And on the consumption and absorption, does it

5 matter over the period of time how the alcohol is consumed?

6 In other words, suppose I'm going to drink beer

7 over a three-hour period and I have my last beer at the

8 conclusion of -- of three hours and then I have a blood test

9 an hour and a half later.

10 Will it matter on how that beer was consumed

11 during those three hours?

12 A. More than likely.

13 Q. Okay. In other words, if I during those three

14 hours, if I was particularly thirsty when I first start and

15 I drink five beers in the first hour and my sixth beer at

16 the conclusion of the third hour, would I have a different

17 blood alcohol content an hour and a half letter -- later as

18 compared to drinking them evenly spaced over that three-hour

19 period?

20 A. More than likely.

21 Q. And it would be a substantial difference; wouldn't

22 it?

23 A. It could be. It would vary, but it could be.

24 Q. And you don't know how Mr. Rokes consumed his beer

25 that night; do you?

 

Page 58

1 A. Not exactly.

2 Q. What do you mean not exactly? You don't know at

3 all; do you?

4 A. Well, I -- There are statements as to what might

5 have been done, but the statements conflict with the numbers

6 so -- It's pretty close.

7 Q. What do you mean pretty close?

8 A. Well, best I could tell, the file says maybe six

9 beers were consumed. The numbers that I come up suggest at

10 least nine beers were consumed.

11 Q. I'm not talking about the number of beers. I'm

12 talking about the pattern of consumption during that

13 two-hour period.

14 A. Well, again, it -- The statements are that perhaps

15 three beers were consumed during the last hour. So three

16 beers in an hour isn't so bad. Six beers in an hour is a

17 huge amount of liquid to process. So that would have a

18 different dynamic than three beers.

19 Q. And -- and you don't know; do you?

20 A. I don't know.

21 Q. And because of the tremendous dynamics, that could

22 have a substantial effect on your retrograde extrapolation

23 and the period of peak consumption -- or peak concentration?

24 A. Well, given -- given the information that I have to

25 work with, I think the assumptions are appropriate to the

 

Page 59

1 task. If --

2 Q. Your assumption is that there is a regular

3 dosing or regular pattern of consumption over the two-hour

4 period?

5 A. What was described as a social drinking scenario,

6 yes.

7 Q. Now, you also claim that the drinking ceased at

8 10:30?

9 A. I believe that's what I assumed, yes.

10 Q. Do you know if the drinking ceased at 10:30 or Mr.

11 Rokes got his last beer at 10:30?

12 A. I don't know for sure. But the 15 minutes is more

13 or less -- that's not -- 15 minutes in two and a half -- or

14 four and half hours is -- is a small fraction. So it --

15 it could have a five- or ten-percent effect on what we're

16 talking about, maybe.

17 Q. And -- and why is it that you say four and a half

18 hours?

19 A. From what we assumed was the beginning until the

20 sample was drawn, 8:00 to 12:30.

21 Q. (Defendant Rokes Exhibit 2000 was

22 marked for identification by the reporter.)

23 THE COURT: In view of the hour, we will go

24 ahead and take a noon recess at this point in time.

25 I remind the jury to keep in mind the

 

Page 60

1 admonition. Please do not view any news media reports on

2 the trail. Do not visit the scene of the events, do not

3 conduct tests, experiments, or independent research and

4 please do not allow anyone to approach and attempt to

5 discuss the case with you. I would ask that you return to

6 the jury room by 1:15 this afternoon.

7 We are in recess.

8 (Whereupon the jury was excused and

9 the following record was made.)

10 THE COURT: Mr. Gallagher, you had a matter

11 that you wished to place on this record; am I correct?

12 MR. GALLAGHER: Thank you, Your Honor. My

13 problem is that Mr. Yagla continues his practice about his

14 concerns for the jury in -- in a manner that's

15 inappropriate. He keeps referring to don't you think and we

16 don't want the jury to wait for you to do that, and then one

17 thing which was more flagrant is when Mr. Bederka was at the

18 board one of the jurors might have -- granted, I didn't hear

19 what he said.

20 MR. YAGLA: He said, "Close enough."

21 MR. GALLAGHER: But Mr. Yagla turns around to

22 him and says, "Your agree with that, don't your?" And, Your

23 Honor, I think that's highly improper and -- and I would ask

24 that you admonish Mr. Yagla for his --this type of conduct.

25 THE COURT: Okay. I believe Mr. Yagla has

 

Page 51

1 correctly stated the response give by the juror. I was

2 able to hear it.

3 MR. GALLAGHER: You mean me? I said it.

4 THE COURT: Pardon me? Mr. Yagla has just

5 placed in the record that the statement of the juror was.

6 MR. GALLAGHER: I'm sorry.

7 THE COURT: Your were not able to recall it

8 that would be consistent with my recollection of what the

9 juror said. I agree with the position taken -- taken by Mr.

10 Gallagher here.

11 Certainly, counsel's communications with the

12 juror, even in the courtroom setting, even is not

13 appropriate. I guess let the record reflect this particular

14 juror has throughout the trial so far made verbal responses

15 to what is happening, and that's not to -- to lessen or

16 downplay what occurred here; but I can see how it's easy

17 to -- to play off of that.

18 So, Mr. Yagla, please govern yourself

19 accordingly in the future and all counsel. Let's -- let's

20 not be communicating with the jury even in the courtroom

21 setting here.

22 Okay. We'll take our noon break at this point

23 in time and, again we'll hopefully resume at 1:15.

24 (Whereupon a recess was taken.)

25 THE COURT: Mr. Yagla, you may resume your

 

Page 62

1 cross -examination.

2 MR. YAGLA: Thank you, Your Honor.

3 CROSS-EXAMINATION CONT.

4 BY MR. YAGLA:

5 Q. Mr. Bederka, how many chemists do you work with or

6 toxicologists or pathologists or --

7 A. I really don't know what that question means.

8 Q. Well, the name of your business says Tox-I-Col

9 Associates.

10 I'm wondering how many associates there are?

11 A. I'm sorry. That's just a name. There's no one else in

12 that except myself, except as I may make referrals or get

13 some cooperation on some matters for research purposes or

14 what have you; but there are no employees of that item, and

15 it is not a corporation.

16 Q. So Tox-I-Col Associates -- and it's plural -- is

17 you?

18 A. It is I.

19 Q. And you said that your business is consultant?

20 A. Right.

21 Q. Now, is that a euphemism for hired expert witness?

22 A. Not necessarily.

23 Q. Is that principally what you do?

24 A. Yes.

25 Q. So, in other words, if I need an expert witness for

 

Page 63

1 a trial to give me an opinion, I'd call you?

2 A. You could.

3 Q. Tell the jury how much you're making off this

4 case.

5 A. Well, right now, I can't tell you because I don't

6 have the numbers with me; but I've been involved in this

7 case for over a year, and I know I've put a recent invoice

8 out for something like $4,000. I don't remember if I had

9 sent out another one. I'd have to look at the whole file.

10 and I will ask to be compensated for my work relative to

11 today's effort.

12 Q. And how much are you going to be paid for today?

13 A. I don't know exactly, but I have a rate that I

14 normally charge.

15 Q. Could you give the jury some idea how much you're

16 being paid to testify today?

17 A. Well, for preparation work that I do, like library

18 work, writing reports, I have a fixed rate of $250 an hour;

19 and for the actual time that I am at trial on the stand, I

20 charge at $450 an hour.

21 Q. $450 an hour?

22 A. Yes, sir.

23 Q. When did you start charging Mr. Gallagher for your

24 time in -- since the last invoice of $4000?

25 A. I started this morning a little after ten.

 

Page 64

1 Q. There was some discussion about -- Maybe I

2 misunderstood. I -- I thought you had a discussion last

3 night; you presented him with additional evidence, something

4 that he tried to get in evidence this morning?

5 A. Oh that was a meeting. That's at the two fifty

6 rate, and I'll -- I have a time that I have put down for

7 that already.

8 Q. And -- and how much did you -- did you get for --

9 yesterday's work?

10 A. I haven't done anything. At -- That's just going

11 to go out as an invoice.

12 Q. So you're going to be -- In addition to that one

13 invoice of $4,000 and you don't know how many there were

14 other ones, --

15 A. Right.

16 Q --you're going to send him another one for

17 thousands of dollars?

18 A. Probably two or three, yes.

19 Q. And the thrust of your testimony is -- is, as I see

20 it and -- and perhaps the jury, is that you're trying to

21 give the jury your opinion of -- of what the alcohol level

22 was at the time of the accident, go -- go back in time from

23 this .087 to -- to find out what it was at the time of the

24 impact.

25 Is that pretty much the thrust of your

 

Page 65

1 testimony?

2 A. That's part of it, yes.

3 Q. Well, I -- I -- I was trying to pay attention, Mr.

4 Bederka, and that -- that -- that seems to be the -- the

5 point, the thrust, of your testimony.

6 Are -- Is there something else more important

7 than that that's escaped me?

8 A. The number is important.

9 MR. GALLAGHER: That's --

10 THE COURT: Excuse me.

11 MR. GALLAGHER: Excuse me, Mr. Bederka.

12 Excuse me, Your Honor.

13 I'd object to that as argumentative, and it's a

14 statement.

15 THE COURT: Objection sustained.

16 Please rephrase, Mr. Yagla.

17 Q. Okay. Is there something else more important that

18 you're trying to do here with your testimony other than

19 trying to do this retrograde extrapolation and come up with

20 a number at the time of -- of the accident?

21 A. Well, I'm not trying to come up with a number. I'm

22 trying to come up with a range that's probable, and I also

23 will relate that blood alcohol to the expected effects on

24 the nervous system. So it's -- it's a dose and effect

25 that we're talking about.

 

Page 66

1 Q. And when you work your way back from this number of

2 .87 from our state crime lab, what's important is how much

3 of this alcohol is eliminated every hour and, if you know

4 that, then you can work back on an hour-by-hour basis; is

5 that --

6 A. Right.

7 Q. -- correct? And to get to that, the highest number,

8 the alcohol that's consumed goes through phases, a phase

9 where the blood alcohol content is increasing after

10 consumption, and then it's decreasing until eventually it

11 goes to zero?

12 A. It will approach zero, yes.

13 Q. Now, you talked about this beer being -- after

14 consumption that it reaches its -- it's totally absorbed in,

15 what, half an hour?

16 A. Or less.

17 Q. But other experts say an hour, hour and a half;

18 right?

19 A. That's not beer.

20 Q. They don't -- they don't draw the distinction that

21 you draw. They -- they say that ethyl alcohol is ethyl

22 alcohol; it's made up of certain molecules, and those

23 molecules act in a body in a certain way whether the carrier

24 is hops and water or -- or potato mash and water, that you

25 have a chemical substance of ethyl alcohol and that molecule

 

Page 67

1 is the same whether it's carrier in something -- a container

2 called cognac or a container called a can of beer.

3 Is that --

4 A. Oh yes, that's true.

5 Q. -- true? And so others do not distinguish; they

6 say an hour, hour and a half.

7 A. No. The studies that -- that they report on are

8 generally studies with whiskey and fixed periods of time.

9 If you read it, clearly they usually say what they drank,

10 what period of time they drank it, how much they drank, et

11 cetera, et cetera -- and some of them will specify that it

12 was beer -- over certain periods of time.

13 Q. Well, in Mr. Dubowski's -- or Doctor Dubowski's

14 article in the Journal of Studies on Alcohol that was

15 published in July, 1985, entitled, "Absorption,

16 Distribution, and elimination of Alcohol: Highway Safety

17 Aspects," he doesn't draw any distinctions of whether this

18 ethyl alcohol molecule is carried in -- in cognac or wine or

19 beer; does he?

20 A. I don't know.

21 Q. And doesn't he say that 60 to 90 minutes that

22 many others claim may be wrong and the side of the

23 absorption -- or the -- the period of absorption may be

24 longer than that?

25 MR. GALLAGHER: Your Honor, I'm going to object

Page 68

1 to that. He's reading from something. The witness -- how

2 can --

3 MR. YAGLA: I'm not reading. You had your back

4 to me. I was not reading.

5 MR. GALLAGHER: I'm sorry, but I -- Okay. He's

6 asking does he say something without giving the witness the

7 benefit of the article.

8 THE COURT: Okay. Well, objection sustained.

9 Perhaps if you would allow the witness to see or perhaps

10 you're at that point anyway, Mr. Yagla.

11 MR. YAGLA: That's really why I walked up here.

12 THE COURT: I assumed it could be.

13 (Whereupon a document was shown to

14 the witness.)

15 Q. This is the article I'm talking about. Are you

16 familiar with his article, the one you just read the name

17 of into the record?

18 A. I don't think I've ever read it . Well, he says

19 that it's a function of the nature and concentration of the

20 alcoholic beverage.

21 Q. Sure.

22 A. So, if it's one, it will do this; if it's -- So I

23 don't know exactly what he uses and, besides that, this is

24 not real data. This a hypothetical situation. Here, he

25 has 29 minutes, 52 minutes. He as different things. So I

 

Page 69

1 don't know exactly what he used here.

2 It does say .5 grams per kilogram so maybe --

3 Here, we go. Oh, he -- they've done all -- They've done

4 different things, but none of it's given here so it's --

5 it's impossible for me to say what -- what he's really

6 talking about.

7 Q. Well, the point is that you -- you said that the

8 writers generally say what type of alcohol the carrier is,

9 whether it's wine or -- cognac or beer, and I guess I'm

10 handing you the article.

11 The first question: Doctor Dubowski doesn't do

12 that in this article; does he?

13 A. That's right. This is a very general article.

14 Q. Okay. And then the second point is: When he

15 starts talking about his retrograde extrapolation, doesn't

16 he say, "Breath and blood alcohol time curves are subject to

17 short-term fluctuations from the trend line and other

18 irregularities --"

19 A. Yes.

20 Q. "-- and often do not follow the typical Widmark

21 pattern. From the existing information on pharmacokinetics

22 of alcohol and the characteristics and variability of blood

23 and breath alcohol versus time curves, the following

24 conclusions can be reached: First, not all blood and breath

25 alcohol curves follow the Widmark pattern, nor is the

 

Page 70

1 elimination phase necessarily linear. Second, alcohol

2 absorption is not always complete within 60 to 90 minutes,

3 as often claimed."?

4 Is that what he says?

5 A. That's what he says.

6 Q. And he's saying that it's often claimed, and I

7 presume and I assume you presume that that's often claimed

8 by others writing and studying in this area that the

9 absorption takes 60 to 90 minutes?

10 A. It can.

11 Q. And -- and Widmark even said 50 to 80 minutes in

12 his treatise; didn't he?

13 A. You can see a huge range depending upon the

14 specifics.

15 Q. So on the -- And that -- that period of absorption

16 while the blood alcohol content is going up, that takes

17 time; and then there's a decrease over time of the -- as the

18 body is oxidizing or metabolizing the alcohol?

19 A. It's eliminating it one way or another.

20 Q. Okay. Now, if we only have one blood alcohol

21 content reading, you really can't tell us what that curve is

22 like; can you?

23 A. Not exactly.

24 Q. I've drawn some lines on the board similar to those

25 that I've been looking at this weekend where on one axis of

 

Page 71

1 a graph we have the blood alcohol content and the other

2 axis, the X axis, is time.

3 That's a setting that you're familiar with;

4 aren't you?

5 A. Yes, sir.

6 Q. And -- and you want the jury to believe -- or -- or

7 it's your opinion, if I understand correctly, that you think

8 the -- the period of absorption is at its highest.

9 absorption is complete, about half hour after consumption

10 is done?

11 A. If -- if you're trying to use this figure to

12 represent what I've been talking about, --

13 Q. No.

14 A. -- that figure doesn't represent it at all.

15 Q. Please -- please just answer my questions.

16 A. Well, what I said is within 30 minutes after

17 chronic beer consumption you will have had a peak in the

18 blood alcohol concentration curve.

19 Q. Okay. And then after reaching a peak about a half

20 hour after alcohol consumption, then there's a decrease?

21 A. Yes.

22 Q. Now, but others say that the blood alcohol content

23 continues to rise for an hour to an hour and a half; don't

24 they?

25 A. (No response.)

 

Page 72

1 Q. Would you like the question read back?

2 A. There are data that show that the absorption phase

3 can last a long time.

4 Q. And that absorption phase is pretty significant

5 when we're trying to find out what a person's blood alcohol

6 content was a given time such as 11:00; right?

7 A. Well, absorption phase doesn't necessarily preclude

8 a peak in the blood alcohol curve; okay? Because there is

9 some absorption that's minimal; whereas, destruction is

10 already proceeding. So there -- These things, though,

11 absorption, peak, and elimination, are real, but they're not

12 either mutually exclusive or inclusive; okay?

13 So -- Now, to -- to further expand, there are

14 data in the literature where if you eat food, it may be six

15 hours prior to a peak and there can be other variations on

16 the curve.

17 Q. Sure.

18 A. So one has to be fairly specific, lest one just

19 clouds up the issue.

20 Q. Right. And we sure don't want to do that. The

21 absorption phase, this period of rising blood alcohol,

22 doesn't have to peak at a half hour. There are many writers

23 and scientists that think it peaks an hour to an hour and a

24 half later and under some circumstances say acetone

25 presence, diabetic -- diabetics, other health conditions,

 

Page 73

1 food, all sorts of things, can affect that curve so that you

2 can have a continuing rising blood alcohol content for hours

3 into the future?

4 A. I've never seen a beer study that showed that,

5 never.

6 Q. And all we know -- or all you had to look at was a

7 .087 at 12:20; --

8 A. Well, that's one --

9 Q. -- correct?

10 A. -- of the things I had to look at.

11 Q. Did -- did Mr. Gallagher give you any of the other

12 test results?

13 A. I and the twenty test result.

14 Q. Okay. But did you have a .09 test result at about

15 11:30?

16 A. (No response.)

17 Q. Yes or no?

18 A. There was a breath test result, a preliminary

19 breath test result, right.

20 Q. Mr. Bederka, did you have that?

21 A. Yes.

22 Q. Funny, I didn't hear you mention that. Did I

23 miss that when you mentioned that in your testimony this

24 morning.

25 MR. GALLAGHER: Objected to as very

 

Page 74

1 argumentative.

2 THE COURT: Objection sustained.

3 Please rephrase

4 Q. Did you mention that at all this morning?

5 A. No that I'm aware of.

6 Q. Now, to -- to back up from some point in time to

7 try to find out what a blood alcohol content was previously,

8 you have to know how -- how much it's decreasing each hour;

9 is that right?

10 A. You should know or you should have appropriate

11 approximate ones.

12 Q. Well, if you have approximations, what are they

13 based on?

14 A. The literature and the thousands of studies that

15 have already been reported.

16 Q. And would you agree that that literature says that

17 there's such a wide variation in the rate of elimination

18 that trying to do it just doesn't work?

19 A. Oh, that's what the literature says; but that's

20 just not true.

21 MR. YAGLA: No further questions.

22 A. Because it does work.

23 THE COURT: Okay, Mr. Hellman, cross-

24 examination?

25 MR. HELLMAN: Could get a get out of jail

 

Page 75

1 free card here? I -- I really do want to get up.

2 MR. YAGLA: I'll move it.

3 THE COURT: If counsel would assist, perhaps

4 in moving that blackboard.

5 MR. HELLMAN: Not that I didn't appreciate your

6 artwork.

7 THE COURT: Those present in the courtroom are

8 welcome to stand and stretch in place.

9 (Whereupon a stretch break was taken.)

10 CROSS-EXAMINATION

11 BY MR. HELLMAN:

12 Q. Mr. Bederka, you mentioned a number of -- of

13 matters that were affected at the .125 to .15 level. I'm

14 not sure that I head you say anything at that level?

15 Is one's judgment affected at that level?

16 A. Well, judgment is a multifactorial process just

17 like the reaction time, which I went into in some detail.

18 There are many things involved in judgment.

19 You must perceive, you must evaluate what you

20 perceive, and then you must think about what your action

21 should be, and then you must execute. That's the same as a

22 reaction time. So there are many components, and all of

23 those are slowed by high levels of alcohol.

24 Q. And you, along that same line earlier, said one at

25 that level, the .125 to one-five-five level would not be

Page 76

 

1 good at avoiding accidents?

2 A. It's been demonstrated repeatedly.

3 Q. And would that -- You say avoiding accidents.

4 Would that include swerving to the left or swerving to the

5 right?

6 A. Those are all decision that would be affected.

7 Q. Now, if -- I'm just going to hold this to make it

8 quicker here.

9 If the evidence in Exhibit 1001 shows that at

10 the time of this accident Mr. Rokes actually swerved his

11 vehicle to the left into the path of the Farrell car, would

12 that be consistent with the impairment upon the ability to

13 avoid an accident?

14 A. Well, it appears to be that. That would be

15 consistent with what I've just said.

16 Q. You mentioned that vision was affected. You

17 mentioned peripheral vision as well as general vision.

18 Peripheral vision is the ability to see out of

19 the sides of your eyes; correct?

20 A. Right.

21 Q. Would -- would the vision effect include one's

22 ability to observe a traffic light, for example?

23 A. Well, if you're driving, you generally are focused

24 ahead. So you would be focused on the traffic light, for

25 example, and if you were focused on the traffic light, you

 

Page 77

1 would not see anything in the periphery. That's the idea

2 of -- of tunnel vision idea.

3 But if you weren't focused on the traffic

4 light, you wouldn't see the light either, of course, and

5 you -- you-- If you're not focused outside of the vehicle,

6 you're not going to see anything outside of the vehicle.

7 And all of these processes are functionally slowed because

8 they are psychomotor functions.

9 Q. When you mentioned -- You just mentioned tunnel

10 vision.

11 Is that a -- a known side effect of drinking

12 alcohol at the level that you have opined in this case Mr.

13 Rokes drank at?

14 A. Well, I don't know that you'll see the word tunnel

15 vision; but I'm using that to illustrate that one tends to

16 focus narrowly what one's looking at to the exclusion of

17 anything that normally would be processed out of the

18 periphery. Alcohol does that.

19 Q. And if the evidence in this case indicates that Mr.

20 Rokes did not see the Farrell car until the collision

21 actually occurred, would that be consistent with drinking at

22 .125 to one-five-five?

23 A. Well, it would be consistent with a lot of things.

24 If he wasn't looking outside the vehicle, he couldn't have

25 seen the car; okay?

Page 78

1 Q. Sure.

2 A. And -- but an alcohol -- A high level of alcohol

3 does cause decreased neuropsychological functioning. So if

4 he had seen it, he would have reacted more slowly, as I've

5 already said. All of the processes involved in doing

6 something would have been slow.

7 MR. HELLMAN: Thank you. Nothing further.

8 THE COURT: Redirect?

9 REDIRECT EXAMINATION

10 BY MR. GALLAGHER:

11 Q. Doctor Bederka, you were asked by Mr. Yagla about

12 alcohol testing. You don't do it now, and I thought that

13 you did do alcohol testing during your career for several

14 years.

15 Would you explain that, if you did or didn't

16 A. Yeah. What I was --

17 MR. YAGLA: Objection.

18 Excuse me, Mr. Bederka.

19 I'd like to interpose an objection about

20 counsel making a speech about what he's said or what he

21 speaks and what he's read. I'd just like to have counsel

22 advised to make an objection rather than make a speech.

23 THE COURT: Your objection is noted.

24 I would ask counsel. I think all counsel

25 need to -- to guide themselves accordingly with this

 

Page 79

1 objection.

2 MR. GALLAGHER: I apologize if that was -- I'm

3 just trying to hurry this up.

4 Q. Doctor Bederka, did you testify or did you not

5 testify on direct examination that you have done blood tests

6 over a period of time in your career?

7 A. For the six years that I was running the drug

8 analysis and toxicology lab at the College of Medicine at

9 the University of Illinois in Chicago, we ran and I ran

10 alcohol tests.

11 We used a gas chromatograph similar to what Mr.

12 Rayburn used; and in the stat lab that we participated in in

13 the hospital, they used the DuPont ACA analyzer to do

14 alcohol. So I'm quite familiar with those techniques and

15 the processes involved of quality -- quality control and so

16 forth.

17 Q. You mentioned, also, about elimination. What about

18 trauma and its effect on elimination or absorption?

19 A. Well, I haven't seen very much on effects of trauma

20 on absorption or alcohol; but I have three studies that I

21 have referred to that deal with the rate of loss of alcohol

22 from the bloodstream in trauma victims.

23 Q. Ah-huh.

24 A. And those are in the range of .02 to .02 percent

35 per hour on the average. They're a shade higher, which is

Page 80

1 pretty much what you'd expect with organisms that are badly

2 damaged or surgical patients and so forth.

3 Q. Would you be surprised or not in this case that Mr.

4 Rokes had the bloodshot eyes, staggering, we talked about

5 that, if he was able to answer questions to the police

6 officers?

7 A. Well, not exactly.

8 Q. And why not?

9 A. Well, the shock of an accident generally causes at

10 least a transient increase in wakefulness; and this has been

11 described many times over. So it -- that -- And the degree

12 of being able to answer questions wasn't evaluated, so I

13 don't really know the specifics of that.

14 Q. Okay. Now, are you aware of the literature that

15 supports your analyses here?

16 I'm talking about are -- have here been

17 studies made around the world on this?

18 A. Everything I've mentioned today, I have

19 documentation with me to show that what I've said has been

20 done and published.

21 Q. Okay. So when Mr. Yagla asked you about retrograde

22 extrapolation and Dubowski's statements and so forth, are

23 there statements and studies that disagree with that or not?

24 A. Oh, yes. Dubowski's work was in the seventies, and

25 some of it was as late as in the eighties; and if you read

 

Page 81

1 some of what he tells you, he tells you that don't look

2 for a number but look for a range. And if you look for a

3 range and if the things are there that you need, it will

4 work.

5 The most recent article, which I have

6 provided -- and I think I have provided -- is -- is two

7 authors with the same last name. They have done the

8 retrograde extrapolation and they have done an antegrade

9 extrapolation.

10 So they have taken numbers all along the curve

11 that -- I can't remember the name of -- of your associate

12 there specifically -- but they have shown that if you use an

13 appropriate range, which is identical to the range I have

14 spoken about, you can predict where that number will be

15 along that curve within that range.

16 And their article shows that they can predict

17 with a hundred percent accuracy within a couple of hours

18 what that number's going to be in that range. That's the

19 best, most recent 1997 article that I have found.

20 Q. Mr. Jensen, the expert for the defendant, referred

21 to an article by Santa Maria.

22 Have you read that article?

23 A. I have.

24 Q. And does that support your position -- Well, tell

25 me what it is.

 

Page 82

1 What did he do?

2 MR. YAGLA: I object. This goes way beyond any

3 redirect. It goes way beyond what is disclosed as expert

4 opinion. It's -- it's also assuming facts not in the

5 record.

6 THE COURT: Objection sustained at this time.

7 Q. You -- have you read Mr. Jensen's deposition?

8 A. I have.

9 Q. Does he refer to an article by Santa Maria in

10 Australia?

11 A. Yes, he refers to an Australian article.

12 Q. Were those actual tests run and are you -- That's

13 two questions.

14 Q. Are you familiar with the article?

15 A. Certainly.

16 Q. And you have read it?

17 A. I have.

18 Q. MR. YAGLA: Same objection on relevancy and the

19 other objections previously made.

20 THE COURT: Counsel approach, please.

21 (Whereupon an off-the-record discussion

22 was held at the bench.)

23 THE COURT: At this point, I'm going to ask the

24 court reporter, I guess, to read the question and then the

25 objection that was given.

Page 83

1 MR. YAGLA: Excuse me for interrupting. May we

2 approach?

3 (Whereupon an off-the-record discussion

4 was held at the bench.)

5 (Whereupon the requested portion of the

6 record was read.)

7 THE COURT: At this point in time, the Court's

8 going to overrule the objection. I believe there was an

9 answer given that's in the record.

10 So at this point, Mr. Gallagher, you ask a new

11 question, please.

12 MR. GALLAGHER: Thank you.

13 Q. Have you studied this article?

14 A. Yes, sir.

15 Q. Were there actual tests made to determine whether

16 or not retrograde extrapolation is -- is valid?

17 A. The article doesn't deal with retrograde

18 extrapolation.

19 Q. does it --

20 A. The article deals with other topics that we're

21 dealing with here.

22 Q. Is the other topic for a beer to get up to a

23 level -- I misspoke.

24 A. Exactly.

25 Q. And can you tell us a little bit about that study?

 

Page 84

1 MR. YAGLA: Objection. That's too vague to --

2 to be able to form an appropriate response. Just saying

3 tells us a little bit about it --

4 THE COURT: Objection sustained.

5 Please make it more specific.

6 Q. What kind of a study was it? How was it done?

7 A. This was a study performed in Australia for a

8 government agency in an attempt to study the characteristics

9 of the curves that have been drawn on that board, to look at

10 how those curves rise while you're drinking and how they

11 decline after you're finished drinking.

12 And they were specifically done with certain

13 types of beverages, and several of these studies deal with

14 beer exclusively; and it's those article that come out of

15 Doctor Jensen's deposition that clearly show that the peak

16 occurs within 30 minutes after you stop drinking.

17 Q. And that's what you've testified to?

18 A. That's exactly what I've testified to.

19 Q. Is there a graph in that article that shows that

20 with the time and the different aces on it?

21 A. There are several graphs in that article and there

22 are several other articles that show the same thing.

23 Q. So there are other articles other than the Santa

24 Maria article that -- that says that as far as when you

25 get to the top, the peak of the BAC, the blood alcohol

 

Page 85

1 content, --

2 A. This is --

3 Q. -- after drinking --

4 A. Right. This is for so-called social drinking.

5 Q. I'm going to show you what has been marked as

6 Exhibit 1101, which is a page of the Santa Maria article.

7 Do you recognize the graph?

8 A. Yes. This is one of the graphs that's in there.

9 Q. And does that show the 20- or 30-minute period

10 after the last beer is consumed for peak absorption?

11 A. Yes, definitely does.

12 MR. GALLAGHER: I'd like to offer 1101.

13 I think you have the article.

14 MR. YAGLA: Which one?

15 MR. GALLAGHER: Santa Maria.

16 MR. YAGLA: I don't have this. No objection.

17 MR. HELLMAN: No objection.

18 THE COURT: Exhibit 1101 is admitted.

19 Q. Now, can you explain Exhibit 1101 to the jury, the

20 last beer and the time, if you could come down here, Doctor

21 Bederka? We don't have a blowup of it.

22 Could you show when the peak was and what the

23 black line and the dotted line means?

24 A. You need a concave lens to spread this out for

25 you. What they did there is they studied one person who was

 

Page 86

1 a beer drinker, and that person drank -- began to drink a

2 beer at each arrow. So in the first hour, that person

3 consumed five beers; and in the second hour, that person

4 consumed two more beers and each beer was consumed in a

5 period of 15 minutes and you had to stop, finish it.

6 So if you look at these times, this beer

7 started just before -- I can't see that close -- one twenty.

8 So this is two hours after the beginning. So the second

9 beer was finished being drunk at two hours; and these are

10 the blood samples, the solid lines are the blood samples.

11 It shows how the blood alcohol curve varies with time.

12 You see it popped a little after each beer, and

13 then from two hours on the peak occurred within about 10

14 minutes, 15 minutes here; and then the blood alcohol curve

15 just went down. Every one of these dots is a specimen, and

16 this is a reasonably straight line and this is an

17 unreasonably unstraight line (indicating).

18 Q. And does it show how long it was after the last

19 beer was consumed --

20 A. I've indicated, this (indicating) --

21 THE COURT: I'm sorry sir. I need to

22 interrupt. You need to wait until the question is finished

23 before beginning to answer.

24 Q. The question was, Doctor. What is the period of

25 time in minutes between the consumption of the last beer and

 

Page 87

1 the peak?

2 A. It's less than 10 minutes till the peak occurred in

3 the blood sample. This is another (indicating). There are

4 others that show it can be as long as 30 minutes. It's all

5 within that range, 10 to 30 minutes.

6 Q. There are studies, you say, out there other than

7 the Santa Maria study that --

8 A. Several.

9 Q. Mr. Yagla asked you abut a breath test.

10 MR. YAGLA: Excuse me for interrupting, but do

11 we have to preface all the remarks with a speech?

12 Can we just have a question without a speech?

13 THE COURT: Okay. I want counsel to approach.

14 (Whereupon an off-the-record discussion

15 was held at the bench.)

16 THE COURT: Please rephrase your question.

17 Q. Did you ask -- Strike that. You testified earlier

18 about a breath test on the direct exam.

19 Do you recall that?

20 A. Yes, sir.

21 Q. Do you take any credence in that at all?

22 A. It's a --

23 Q. I -- Let me just add as far as your analysis to

24 this jury is concerned.

25 A. It's in the ballpark that we're talking about, and

 

Page 88

1 that's what a breath test is is a ballpark estimate of a

2 blood level. It's an air alcohol test. It's not a blood

3 test.

4 Q. What's BBT (sic) mean

5 A. P.?

6 Q. PBT.

7 A. PBT. It's called a preliminary breath test. It's

8 done in the field, and it is almost always followed up by a

9 supposedly more-definitive breath test back at the

10 headquarters.

11 Q. Why?

12 MR. YAGLA: Excuse me for interrupting. I'd

13 like to interpose an objection.

14 Your Honor, this goes beyond any opinions

15 disclosed prior to trial, and this witness has specifically

16 said that he did not consider this; and him not having

17 considered it in formulating his opinions and his not

18 mentioning it during direct examination, --

19 THE COURT: Well, it was a matter, Mr. Yagla,

20 that came up in you cross-examination of the witness. So

21 I'm going to overrule the objection. I'm not sure that we

22 had a pending question, though.

23 MR. GALLAGHER: Could I have the question

24 read? Frankly, I've forgot it.

25 (Whereupon the requested portion of the

 

Page 89

1 record was read.)

2 THE COURT: Read back Mr. Gallagher's preceding

3 question to that.

4 (Whereupon the requested portion of the

5 record was read.)

6 Q. Why is there a more-definitive test at headquarters

7 or in the hospital?

8 A. The preliminary breath test is notoriously

9 inaccurate.

10 MR. GALLAGHER: Just a few more questions

11 probably, Doctor Bederka.

12 Can you see now?

13 THE JURY: No.

14 THE COURT: Are you able -- Is everyone in the

15 jury box able to see?

16 THE JURY: Yes.

17 Q. This shows a curve, I believe, representing the

18 alcohol or blood alcohol level.

19 Do you know that's what that is starting at

20 10:30?

21 A. Well, if I disregard that as -- as showing anything

22 factual, it's -- it's a -- it's an approximation of some

23 reality, yes.

24 Q. But -- but it's not factual because the drinking

25 started at eight?

 

Page 90

1 A. That's what I tried to explain.

2 Q. Okay. Would you explain it for the jury?

3 A. Well, the drinking started at 8:00. The absorption

4 didn't start at 10:30; okay? So this -- this curve is a

5 hypothetical curve that could represent somebody's study;

6 and it shows several things, of course, but it doesn't

7 represent the data that had been presented in this matter.

8 Well, to some extent but not really.

9 The oh-eight-seven is not true. That was a

10 that was a value found many hours after this happened. The

11 value, as I showed corrected, is .1 to .10. So this is a

12 lot of information, but it's -- it's not correct in terms of

13 what's been presented by me from the stand. So I'm not sure

14 what the real purpose of that was.

15 Q. Is it applicable to this case at all?

16 A. Tangentially, yes; --

17 Q. Well, explain that.

18 A. -- specifically, no.

19 Q. And --

20 A. Let me walk up to it and explain that; okay?

21 MR. GALLAGHER: If it's okay with the Court.

22 THE COURT: Counsel may relocate themselves, if

23 they need to.

24 A. This is a blood alcohol concentration curve. If

25 you started drinking at time zero and you drank a lot of

 

Page 91

1 whiskey, an hour later or a half an hour later you could

2 have a peak because there's not much volume in whiskey and

3 it goes down into the system real fast and the body absorbs

4 it.

5 But if you're drinking beer, there's huge

6 volumes of liquid that the body has to process and it

7 doesn't go in fast: okay? Now, this is more typical of a

8 prolonged social drinking scenario. You drink for an hour,

9 hour and a half, you have two, three, four beers. Soon as

10 you stop, it starts to drop because it's pushing water in.

11 There's still water in alcohol left in the gut, but it's

12 already peaked and it's breaking it down faster than it's

13 going in.

14 So, yes, this shows you a blood alcohol curve.

15 It show you one that peaks quickly. It show you one that

16 peaks rather slowly. This is more of a beer curve. This is

17 more of a whiskey curve (indicating), but neither one of

18 them really describes what we talked about here.

19 This is an hour and a half (indicating). We've

20 talked about drinking for two hours and a half

21 (indicating). So as a hypothetical, it's kind of okay; but

22 reality -- it doesn't really deal with our reality.

23 Q. In reality, the drinking here started at 8:00 and

24 the absorption started shortly thereafter; didn't it?

25 A. It starts absorbing as it's going through the --

 

Page 92

1 through the mouth, to some extent.

2 MR. GALLAGHER: That's all the questions I

3 have.

4 THE COURT: Recross?

5 RECROSS-EXAMINATION

6 BY MR. YAGLA:

7 Q. I've -- I've got a problem with the -- the rate of

8 elimination, and you use anywhere from .01 to .03 percent

9 per hour?

10 A. Yes, sir.

11 Q. But in this case, you use what?

12 A. .014 to oh-two-eight or oh-two-nine.

13 Q. I'm sorry. I missed those numbers. Could you say

14 that again?

15 A. I think it was oh-one-four to oh-two-eight or

16 oh-two-nine.

17 Q. .0148, you said?

18 A. Oh-one-four.

19 Q. Oh -- oh-one-four.

20 A. And I think on-two-nine or on-two-eight.

21 Q. Humor me, Mr. Bederka. Let's -- let's assume that

22 Mr. Rayburn's report form the -- from our state crime lab is

23 correct, that the blood alcohol content on the blood

24 withdrawn at 12:20 is .087, using the lower number.

25 What would have been Mr. Rokes's blood alcohol

Page 93

1 content using your number, that .014 rate of elimination?

2 A. Add it to the oh-eight-seven.

3 Q. Like that? so it would be .101?

4 A. Right.

5 Q. And what do you have for 11:30 with your number?

6 A. Well, I didn't use oh-eight-seven.

7 Q. Well, okay. What -- what did you come up with?

8 A. I have different times.

9 Q. Do you have one abound 11:30?

10 A. .115, more or less.

11 Q. .115?

12 A. Right.

13 Q. And then that difference would continue to -- to

14 get greater and greater the farther back you go --

15 A. No.

16 Q. -- in retrograde extrapolation?

17 A. No. The difference, I think is -- is fixed

18 because it's a correction that I put. So the -- If you keep

19 adding, that difference will stay basically the same. If

20 you're adding the same amount incrementally so the

21 difference is already there and it would -- percentage-wise

22 it would bet less.

23 Q. In fact, that rate of elimination is really the

24 key to your getting this number up over -- a high number;

25 right?

 

Page 94

1 A. I --

2 Q. Well, I mean the -- the higher the -- the

3 elimination per hour, the higher the number you can get Mr.

4 Rokes to be at the time of his accident?

5 A. Well. that a statement of fact, yes.

6 Q. Okay. I just wanted to make sure I understand

7 right.

8 A. Right.

9 Q. Now, that rate of elimination varies widely from

10 one person to another; doesn't it?

11 A. Yes.

12 Q. Now, I don't -- in -- In what I read, I'm not

13 scientifically -- I'm -- I'm not trained to do the

14 conversion, but in -- in actual grams of -- of alcohol

15 eliminated, would you agree that people will eliminate

16 somewhere from four grams an hour to over 11 grams an hour?

17 A. Two-thirds of a beer equivalent. If you say a beer

18 has 10 grams of alcohol, --

19 Q. No, I -- I don't say that. I don't have a clue.

20 A. I'm trying to get a number to make it objectively

21 easy to see.

22 Q. See, so --

23 A. If you have a beer that's 10 grams and your body

24 can knock down two-thirds of a beer an hour, it knocks

25 down 6.7 grams an hour. so four to eight, it's right in

 

Page 95

1 the ballpark that you mentioned but would vary person to

2 person.

3 Q. Varies quite a bit. From four to 11 is a

4 250-percent variation.

5 From four to -- over 250 percent variation from

6 four to 11; isn't it?

7 A. I think it's actually a hundred fifty percent, but

8 it varies very much.

9 Q. What do you believe -- What is 200 percent of our?

10 A. 200 percent would be two.

11 Q. Two hundred of --

12 A. A hundred percent. I you double something, that's

13 a hundred percent. From four to eight is a hundred

14 percent. Eight to 12 is another hundred percent. But what

15 we're dealing with, the numbers that I used as a -- as an

16 accident victim that sustain an injury, that's where I

17 used the -- the trauma range instead of the normal range.

18 So I -- I narrowed the range for the trauma range that I

19 have used again in -- in -- in accident victims.

20 Q. Which would tend -- And instead of using the

21 numbers that most use, if you use your trauma numbers, it

22 will end up with a higher blood alcohol content for Mr.

23 Rokes at the time of the accident?

24 A. Yes.

25 Q. Are you telling this jury that there are 10 grams

 

Page 96

1 of alcohol in a 12-ounce can of three-two beer?

2 A. I think that's true.

3 Q. Is that what you're telling us?

4 A. Right. Close to that. Three-two or four-three,

5 depending upon which state you're in.

6 Q. We're in a three-two state.

7 A. So three -- 3.2 percent, that's three grams --3.2

8 grams per hundred milliliters; and if your beer is, what,

9 260 milliliters --

10 Q. I have no idea.

11 A. How much beer do you drink?

12 Q. I -- I don't drink, Mr. Bederka.

13 A. So 260 is 2.6 times 3.2 which would be about seven or

14 eight grams. So you have -- depending upon -- In this

15 country, beer runs from two-three in same states to

16 five-five or six. depending upon where the beer came from.

17 So it varies a lot.

18 Q. Now, is that three-two beer what we refer to as a

19 regular beer as compared with a light beer?

20 A. Oh, light beer is like light food. It isn't

21 fixed. So like most beers, as I understand them, are in the

22 four range. Some were three, some were five. It varies,

23 and it -- it varies a little with the -- with the batch, of

24 course.

25 But it -- in the article that I write -- that I

 

Page 97

1 wrote, I used about 10 or 12 grams of alcohol in a beer,

2 about 10 or 12 grams of alcohol in a shot of whiskey, and

3 about 10 or 12 grams of alcohol in a four-ounce glass of

4 wine; and that, obviously has a wider -- relatively wide

5 range.

6 Q. And you -- you would agree that the rate of

7 elimination will vary from four to 11 grams per hour with

8 most people?

9 A. The range of on-one to on-three is 200 percent, and

10 that's the facts.

11 Q. But four to 11 is almost 200 percent?

12 A. That's what I just said.

13 Q. Well, you said four to eight is 100 percent but

14 this is -- we're not varying from four to eight; we're

15 varying from a minimum of four grams per hour to over 11

16 grams per hour?

17 A. It can vary.

18 Q. Can vary quite a bit?

19 A. Well, yes. This is what -- That is why I use a

20 range of oh-one to oh-three, and that covers almost

21 everybody.

22 Q. But you didn't use oh-one here; you used a higher

23 number?

24 A. Because of the accident nature. If it wasn't an

25 accident and no -- no trauma whatsoever, I would have used

 

Page 98

1 the wider range.

2 Q. Do you use a bigger number depending on more

3 trauma?

4 A. It seems to -- to limit out at around oh-three-five

5 or so. I've seen higher but very rarely.

6 Q. I didn't understand of couple of things and,

7 hopefully, you can help me.

8 When I was reading this Widmark book -- In

9 fact, I think I'm stupid here. Mr. Gallagher was trying

10 to -- he uses -- here's -- here's -- I've got these charts

11 all over. He talks abut concentration and the decimal

12 point. It looks like it's one place.

13 A. Yeah, it's per thousand.

14 MR. GALLAGHER: I would like to object to

15 getting back into Widmark, Your Honor. It's beyond

16 the scope of redirect. I didn't ask anything about

17 Widmark.

18 MR. YAGLA: Didn't ask specifically about

19 Widmark but did ask about the -- the intoxication and the

20 evidence, the observed evidence, and that's where we're

21 going with this.

22 THE COURT: Objection overruled.

23 The witness may answer. Well, actually you

24 need to complete your question.

25 MR. YAGLA: Withdraw it.

 

Page 99

1 Q. Mr. Bederka, you were starting to explain to me why

2 these -- this decimal point appears to be -- should be moved

3 one spot to the left; shouldn't it?

4 A. They deal in thousandths --

5 Q. Thousandths instead of hundredths?

6 A. -- instead of hundredths. There are like five

7 different schemes. So if you aren't careful, you can come

8 up with very interesting numbers.

9 Q. So to convert something like this chart or the --

10 the discussion that he uses, we can be thinking of this as

11 being really, for our purposes that way that we've been

12 discussing it today, as if the decimal point was over one

13 point?

14 A. I think that's true.

15 Q. And you talked about what you -- you know,

16 observations. Mr. Gallagher gave you some examples and I

17 can't remember all of them, but I think one was wobbly or

18 leaning. I can't remember the what the other was.

19 A. Could have been staggering or something like that.

20 Q. Do -- do you find in -- in Mr. Widmark's book a

21 chart on page 125 about crude symptoms of intoxication such

22 as not being able to walk a straight line, smelling alcohol

23 on the breath, that sort of thing?

24 A. Basically, yes.

25 (Defendant Rokes Exhibit 2001 was marked

 

Page 100

1 for identification by the reporter)

2 Q. Mr. Bederka, is what our court reporter's marked

3 here Exhibit 2001, is that a copy of the chart that appears

4 at page 125?

5 A. Seems to be.

6 Q. And that shows -- and you can see that that's a --

7 shows the -- those crude symptoms of intoxication at

8 different blood levels according to his testing?

9 A. I think that's true, right.

10 MR. YAGLA: I'd like to offer Exhibit 2001.

11 THE COURT: Any objection?

12 MR. GALLAGHER: It's kind of a long graph. I'd

13 like to have a second to see what it is. I've never seen

14 it.

15 (Whereupon the document was reviewed

16 by counsel.)

17 MR. GALLAGHER: Can I voir dire the witness?

18 THE COURT: You may.

19 VOIR DIRE EXAMINATION

20 BY MR. GALLAGHER:

21 Q. Doctor Bederka, what's the date that Widmark -- Do

22 you have any idea when this was prepared?

23 A. This book was published in German in 1932.

24 Q. You've seen this graph before; have you not?

25 A. I've looked through the book. I don't remember --

Page 101

1 Q. Do you consider the figures on that graph

2 authoritative, having been done in 1932?

3 A. The techniques were very, very, very different in

4 1932. None of the machines that we use today were used in

5 1932.

6 Q. Are there other graphs that would tell this and

7 have been an up-to-date reflection of studies since the last

8 three or four years?

9 A. They might not be real far off, you know, but it

10 would be nice to have more current information then to deal

11 with.

12 Q. The graph that I showed you this morning, would you

13 consider that more authentic than this graph?

14 A. That was done in the '90s. So that -- that was

15 done with psychometric testing that's -- that uses

16 electronic gadgetry to be more quantitative. So I suspect

17 that the -- the 50-year difference is significant.

18 But staggering is kind of easy to see, and

19 odor on the breath is reasonably easy to detect; and so

20 there's probably a -- a similarity but there are more --

21 more than likely there will be some where there will be

22 differences.

23 Q. Well, if you were to go to cite for authenticity

24 the symptoms with different alcohol levels, would you cite

25 one that was done in the 1990s or one that was done in

 

Page 102

1 German in 1930?

2 MR. YAGLA: Excuse me for interrupting. This

3 is way beyond voir dire preparatory to an objection. This

4 is redirect examination as if it were already in.

5 THE COURT: Objection sustained.

6 Any further voir dire?

7 MR. GALLAGHER: Yes. I will object to this as,

8 obviously, being 50 or 60 years old and is not authentic and

9 will not be any help to us in getting the facts in this

10 case.

11 THE COURT: Mr. Hellman?

12 MR. HELLMAN: I would object based on

13 relevancy. The witness testified that the blood alcohol

14 concentrations are in the thousandths rather than

15 hundredths; and I also believe, for that reason, it would be

16 misleading and possibly confusing for the jury under 403 and

17 should be excluded from evidence on that basis.

18 THE COURT: I do think the exhibit is confusing

19 with the witness's testimony. I don't know perhaps if it

20 can be re-offered to -- to better reflect correct

21 concentrations here.

22 Do you understand my concern Mr. Yagla?

23 MR. YAGLA: I do. I did not want to offer --

24 I -- I didn't what to write on there and correct it based on

25 testimony because then it would not appear as it appears

 

Page 103

1 in the book.

2 If I could be given leave during the next

3 recess to -- to rewrite those numbers with the added zero

4 beside the decimal point, I.D. re-offer it this way.

5 THE COURT: The Court would consider such a

6 re-offer at that point in time.

7 MR. YAGLA: Thank you.

8 THE COURT: Actually, why don't we go ahead and

9 take a mid-morning break at this point.

10 MR. GALLAGHER: Mid-afternoon.

11 THE COURT: Mid-afternoon.

12 MR. YAGLA: I'm willing to let the witness go,

13 if Mr. Gallagher's through. I only have one question.

14 MR. GALLAGHER: I just have one.

15 THE COURT: Okay. Subject then, I guess, to

16 any correction of this Exhibit 2001 to make it consistent

17 with the witness's testimony, are there further

18 cross-examination -- or recross, Mr. Yagla?

19 MR. YAGLA: Yes.

20 RECROSS-EXAMINATION CONT.

21 BY MR. YAGLA:

22 Q. Age doesn't have much significance on good

23 scientific work; does it?

24 I mean, people still believe Newton's work.

25 You know who Euclid was? Euclidian geometries remain

 

Page 104

1 especially unsame -- unchanged for 2,000 years.

2 The fact that the scientific studies were done

3 50 years ago doesn't make them invalid; does it?

4 A. As I indicated in my earlier answer, the types of

5 testing are -- are rather crude; and some of them don't

6 require electronic gadgets. The alcohol determination was

7 in all likelihood columns or rows.

8 Therefore, it's subject to a lot of extraneous

9 things. So I would say the numbers might not be exact but

10 some of the testing might be. So the correlation might be

11 off by one or two columns, let's say, or one or two rows.

12 MR. YAGLA: Thank you, Mr. Bederka.

13 THE COURT: Mr. Hellman?

14 MR. HELLMAN: No questions, Your Honor.

15 THE COURT: Mr. Gallagher?

16 MR. GALLAGHER: Yes. Doctor Bederka, one final

17 question.

18 FURTHER REDIRECT EXAMINATION

19 BY MR. GALLAGHER:

20 Q. You indicated you talked about range of

21 elimination.

22 Do you consider the trauma range to be

23 reliable --

24 A. If that's --

25 Q. -- if that's used by other experts?

Page 105

1 A. Well, it's in the literature. I take it right out

2 of the published literature.

3 Q. Okay.

4 A. And -- and that's it, okay?

5 Q. You did have evidence or rather severe trauma here;

6 did you not?

7 A. Clearly.

8 MR. GALLAGHER: That's all the questions I

9 have.

10 THE COURT: Recross?

11 MR. YAGLA: No.

12 THE COURT: Okay. And, Mr. Hellman, any follow

13 up to that last line?

14 MR. HELLMAN: No, Your Honor.

15 THE COURT: You may step down, sir.

16 THE WITNESS: Thank you, Your Honor.

17 THE COURT: At this point in time, we will take

18 a mid-afternoon break. This break will last approximately

19 20 minutes. There are some housekeeping matters that the

20 Court and counsel need to take care of. So please keep in

21 mind the admonition. We will plan on resuming then at

22 3:00.

23 We are in recess.

24 (Whereupon the jury was excused and

25 the following record was made.)

 

updated 12/12/16