COURT ADJOURNED; Osborne Appeal, UPDATE 3

Sandra Stokes Walden

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Posted by: Sandra Walden
Date: Jun 26 2014 2:57 PM

Afternoon Session: (1:32)

Mr. Sheffield you have presented four witnesses.  Who is your next witness?  Julie Dowling.

Are you a attorney here in Dothan Al? yes Experience in criminal trials I have had experience. Class B  Felony, when had you done one prior to Dr Osborne’s?  Probably several years. 

Do you remember having any records saying that Ms. Osborne suffered from any of the symptoms prior to this incidence?  I do not.

Do you recall on the hearing test, is that what you received a phone call about?  I remember receiving a call from Mr Valeska on Sunday evening before the trial.  Mr. Adams, Dr, Osborne and I were meeting and Valeska called and said he had some more records.  We got it the next day.

Was there a point that you asked to be relieved from examining a witness?  Yes, I felt that Mr. Valeska is a very experience trial attorney and the Judge allowed Mr. Adams, Osborne and myself to discuss Mr. Adams continuing examination of Mr. Osborne.  We decided that I would continue.

Valeska:  Dr. Osborne wanted to testify in his own trial?  Yes sir.  Ms. Dowling did you examine Dr. Osborne during the trial?  Yes sir.  Did you think there was anything that you did not ask him or object to anything concerning the examination of Osborne?  I think that in hindsight we always have some questions and doubts. 

After Judge Anderson gave you the chance to talk with Adams and Osborne about Adams taking over the questioning of Osborne y’all made the decision for you to continue? Correct.

Is there any particular reason that y’all discussed and made the decision that you would do the questioning of Mr. Osborne instead of Adams?  I don’t remember.

Valeska asked questions in cross-examination, correct? Yes.  And you had a chance to redirect.   Yes. 

You testified that you got a call from me (Valeska) on Sunday about some medical records? Yes.  Did you go with Mr. Adams at any time to get discovery from my office?  I don’t remember. 

Do you recall coming to my office to get video tapes?  I don’t recall.

Police reports written up and statements, would you tell Judge Anderson that you got copies of those?  I am not trying to trick you.  Dowling: I am just trying to think if I read the police reports, I did see the videos. 

Did you know that Eric Davis worked in Parkman’s office? I did.  Have you ever seen where Eric Davis signed E  on reports he saw?  Yes sir.  Valeska is presenting State’s exhibit 1.   Would you say in preparation of trial that there were discussions about specifics?  Yes

Would you agree that yourself and Adams had a chance to talk to Osborne about Ms. Osborne’s medical records?  I do.  How did those records come into your possession?  We did subpoena some records but I can’t say for sure which ones.

Do those documents that I handed to you are they initialed with a E?  Can you tell the Judge whose initials those are?  I can’t.

Mr. Osborne had the opportunity to tell you what witnesses he wanted to put on the stand?  I do. 

Judge Anderson is asking Valeska to limit the questions to the allegations Mr. Osborne has made.

Ms. Dowling in your professional opinion do you feel that you or Mr. Adams were incompetent in any way?  I do not.

Redirect by Sheffield:

States Exhibit 1:  Release of information by Brian Cherry, would you assume that her entire medical records would be in the possession of the Dothan Police Department and the DA’s office?  Yes sir

Let’s assume this is what you received, would it have been important that here balance test was normal?  Yes sir.

Do you recall what it stated and was it within the normal limits? Yes

At the bottom what does line 1 say?  This test appears to be within normal limits.

Was there anything you had at trial that said the test appears to be within normal limits?  I don’t remember

Valeska: My question is that you assume the medical records would be in the possession of the police department or DA’s office, did you see those records?  If they were in the file Mr. Parkman gave to me I looked at everything in that file.

Judge Anderson:

You have a relationship with Dr. Osborne correct?  I had known him for several years, our daughters were very good friends and they spent the night at each other’s house.

He already had a attorney hired for this case? Yes.  Osborne called me and asked me to meet with him and Jim Parkman that day. 

Next witness:

Derek Yarbrough, Attorney

Yarbrough did appeal for Dr. Osborne on this case.  Did you have or know about the documents from Dr. Gannon or about the test she was given saying she was ok?  I did not.

Sheffield offers a ruling from Supreme Court into record.

Valeska: DA’s office has a open file policy, come to the office and get it, that occurs doesn’t it?  Yes sir

When you did the appeal, you had a chance to come to my office and review files?  I did.  You had a conversation with me about the case?  I did. 

Would you agree that the issues raised on appeal that information was available to you? 

He was asking you about that before that it was not available to you on appeal?  Correct. 

 

Were you incompetent in any way or fashion on appeal? No

 

Sheffield: There has been testimony on Dr. Gannon’s records that defense did not receive and that Dr. Smith did not have Dr. Gannon’s records. Because they were not entered into system until June 6.   If there had been any document presented to you that there was a preexisting condition would you have presented that?  Yes sir.

 

Valeska:  Are you saying that you got everything from Osborne and his attorneys?  I got everything they had.

 

SHEFFIELD: You received information about who Ms. Osborne had seen with issues, you could have supbeoned the records couldn’t you?  Yes sir

 

JUDGE ANDERSON: Is there a claim against appellate counsel? Are you saying to the court that none of the attorneys had these records?  Sheffield: There has been testimony all across the board that those records were not entered into the system until 6 days before the trial.  If you agree with me that the records were not available for counsel then no sir there will not be a claim against Apellate Counsel.

 

SHEFFIELD calls Dr. Wilton McRae, ENT

 

Dr. McRae I talked with you earlier about some records, you testified at the other trial is that right? Yes sir

 

Are you familiar with BPPT?  It is a problem when some crystal come disconnected from stalks and they cause dizziness when head turned a certain way.

 

What is the main reason that causes it?  Depends on how old you are, younger than 40, trauma,  over 40 aging process.

 

Have you ever seen bilateral?  No.  In your entire practice you have never seen bilateral?  No

 

Do you look at patient’s entire file or do you go on what they say?  I look at patient’s file.  

 

What causes bilateral BPPT?  Bilateral is very different from lateral.  There is a neurophysiologist in Chicago who has researched

. 

Do you have to research medical journals to stay current? I do, I go to courses, research on internet, read journals.  If I see something I am not familiar with I will read articles and research on internet.

 

Valeska is objecting to Dr. McRae testifying as to information from a article by a Dr. in Chicago.  Dr. McRae has a copy of the article and Judge Anderson asks him to get it for the court.  Dr. McRae had it with him.  Sheffield handed the article to Valeska.  The article is entered into evidence.

 

Sheffield is now asking questions about report that Dr. Timothy Hane had published.  It talks about BPPV.  In all the patients he saw only 1% were bilateral.  In that number on 2 – 3% were caused by head trauma.  He said that the main cause of the bilateral was toxic drugs.  A good percent were idiopathic, he did not know why. 

 

He is talking about any impairment of the balance organs.  Out of the small % that did show BPPV the main cause if it was bilateral was taking these drugs?  If bilateral it was. 

 

What would your course of treatment for bilateral be?  The same as unilateral, I would tell them not to drive, not to climb ladders for a week or two…and about 70% of the time it will cure itself. 

 

Jan 10, Feb 3, If the patient came to you and said it was resolved and six months later there was no recurrence would you say it was cured?  I would tell that person there is a chance it could recur but it will clear up by its self.  On Jan 10, 2011 there was a balance test performed on Ms. Osborne, would you say it was normal?  Yes every test was normal. 

 

Sheffield shows him a 2012 test.  Was that a normal test?  Dr. McRae is reading it.  The test was normal

 

Oct 22 and June 11 have you been presented any tests on Ms. Osborne that were not normal?  No sir.

 

On Feb 3, history of illness, would that indicate the matter has been resolved?  Objection,  Withdrawn

 

On Feb 3 she said she was well, the test for the vertigo was negative.  Dr. Smith told her she was well and there was a 30% chance of reoccurrence. 

 

Dr. McRae states it is the first time he has ever seen that document.

 

Baseline hearing adult 0 to 25 range.  

Ms. Osborne’s hearing test revealed that her hearing was very good (18).  If you repeat more than 80% of what is said to you, that is good hearing, she repeated back 100% in both ears. 

 

Tinnitus, is that the only thing you thought could be permanent?  Yes sir.  It would have been very important to have a test 4 months before this instance to know that the tinnitus was caused by the incident?  That is right.

 

Valeska:

Do you recall what you were asked about by Mr. Adams?  I recall he asked about BPPT. 

 

You can’t tell the Judge they will not continue to have it? Yes or no. No you cannot.

 

The published date was Oct 6, 2013 on the article.  Do you recall me asking you in the trial about the % of people not cured you said it was a small percentage?  Yes sir.  That the percent is less than 1%, yes sir. 

 

At the trial I was assuming she had unilateral BPPV.  Can you tell Judge Anderson that if a patient has BPPV, what treatment can a patient to cure it if anything.  Well nothing, because God cures it.

 

Sheffield, redirect.  It cures itself doesn’t it?  Yes.  If you have a patient that is coming in periodically and completes all of the tests and they say she is normal, you would say she is normal?  Yes they are normal.  

A doctor can’t come up here and say someone is normal unless they perform tests.  True. 

 

If you had these records at trial you could have said it was cleared up? I would have done a much better job of testimony.  Bilateral BPPV is very rare, in 40 years I have not seen this

 

You testified after Dr. Smith at the trial? Correct.

 

Judge Anderson:  Dr. McCrae bilateral BPPV is both ears?  Yes sir.  And that is a rare occurance?  Yes sir.  What would cause that?  I don’t really know.  The doctor that wrote the article said that most of these were due to drugs, some idiopathic.  Could blunt force trauma to both ears cause this?  I have never seen it.  Bilateral means both ears.

 

Dr. McRae is dismissed.

Defense rests: 

 

State enters documents into record

 

State rests.

 

Judge Anderson wants Mr. Sheffield to file with the court a written brief setting forth those allegations on which there was evidence presented at this hearing within 14 days.

 

How long before he can get a transcript?  How long before you pay for asks for 2 weeks from day he gets transcript. 

 

Mr. Valeska will respond 14 days from receipt of petitioner’s brief. 

 

In written brief and reply set forth not only allegations that evidence was presented in this hearing but also case law that is applicable

 

Court Adjourned.

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