Sunday, June 15, 2008

Understanding the Importance of Dr. March's Testimony

This is a reprint of Part II of an editorial, written by Carey-Ann Sandell, that is featured on SII. It gives a comprehensive explanation of Dr. March’s testimony.

Understanding the Importance of Dr. March’s Testimony

GERAGOS: That the measurements, all five for five, were younger? Made the baby younger, correct?
MARCH: Yes, sir.
GERAGOS: And that at this point if you map out this and you use whatever -- all the scientific data at your -- that's available, that the earliest date is December 29th?
MARCH: Yes, sir.
~~ Testimony of Dr. March / Re-Direct ~~

I chose to start with the above quote from testimony because like the majority of the important pieces of this case, the jury either ignored the facts being presented or completely missed the point being made. In fairness to the jury, I believe they were saturated with far more information than they would have ever been able to consume. I believe that was the Prosecutors game plan -

If you can’t dazzle them with brilliance, you baffle them with bull.
~~ Ron Grantski / comment to the media ~~

The idea was to give the jury so much information, whether important to proving their case or not, so they didn’t pay attention to the details, or spend too much time analyzing all the information they were given. So that the facts that didn’t favor their case against Scott got lost between Laci’s grocery list from December 23rd, and a receptionist at the medical clinic who called in sick the day after Christmas.

GERAGOS: Were you really sick the day after Christmas?
GERAGOS: "No" you weren't sick?
JUDGE: No other questions?
GERAGOS: I was going to ask her why she's here, but it's okay. Welcome to San Mateo, and bye.
~~ Testimony of Corina Ramos - Receptionist OB/Gyn ~~

I believe that Dr. March lost the jury’s attention, if he ever had it – when he became flustered because of being badgered by the Prosecution regarding a typo in his original report to Geragos. When all he was really asking was for the same courtesy extended by the jury for Dr. Devore’s 2-day error in his report.

MARCH: Why not be -- sir, it was in error by two days. I would like everybody to cut me the same two-days slack that was cut Doctor DeVore, who moved his date -- the date of Conner's death from the 25th to the 23rd. I'm sorry, it was an error. I made a mistake. And if we make it June 9th, then we have a death date of Conner of the 29th. It's New Year's Eve if it's June 11th. I'm sorry, I made an error.
~~Testimony of Dr. March – Cross ~~

“Dr. March was the doctor/lawyer’s favorite witness—the guy who did a meltdown on the stand. The 11 of us almost fell off our chairs when he said that. We all gave (March) zeros. He lost all credibility when he asked us to cut him some slack.”
---John Guinasso – Juror- comment to the media--

I also believe that jury latched on to the same belief that Harris seemed to have –that Dr. March's whole conclusion that Conner couldn’t have died before December 29, 2002 was based on the “assumption” that Laci didn’t find out until June 9th that she was pregnant. During Harris’s cross of Dr. March he hammered on that fact over and over and over again, trying his best to damage Dr. March’s credibility and disregard his conclusion.

HARRIS: So using that information from her, you use -- it's absolutely essential to your June 9th determination of all these facts, right?
HARRIS: So what you just told us about relying on her information, it's not something that you used?
MARCH: No. You just used -- put the word "all" in there. And "all" is not a word that -- there is pieces. "All" is not -- I use more than simply a pregnancy test.
HARRIS: So, again, going back to what the question was. That information is crucial for your opinion going from this June 9th date, changing all the other dates that you have been telling us about, right?
MARCH: It's one of many pieces of information
~~Testimony of Dr. March – Cross ~~

Dr. March’s testimony discussed the importance of when Laci is believed to have received a positive home pregnancy test in relation to when it is most likely she conceived Conner -- a key piece of information that can be used in helping determine Connor’s fetus age at the time of his death.

HARRIS: Well, does a pregnant -- home pregnancy test tell you when you conceived?
MARCH: If it's negative yesterday, and negative the day before, and positive today, you are pretty darn good, yes, sir.
~~ Testimony of Dr. March / Cross ~~

During Dr. March’s testimony other important information was offered to the jury, that I believe was lost on them:

-The importance of why Dr. Yip adjusted the due date, based on the second ultrasound results even had Laci been able to carry to full-term.
-His conclusion did NOT rest on when Laci was assumed to have received her positive home pregnancy test on June 9th.
-All the experts who testified to Conner’s age, agreed to the age range.
-Dr. Devore’s - Prosecutor’s hired expert - results didn’t fit any of the other scientific information provided.

Positive Results:

I noted while reading Dr. March's testimony that he not only based his "assumption" that Laci first positive HPT was on June 9th, on the testimony of Rene Tomlinson, but from transcripts of interviews from several of Laci's friends and family. During 2nd re-direct, Geragos mentioned that Sharon Rocha, Jackie Peterson and Stacey Boyer all mention in police statements, that June 9th is the day Laci found out she was pregnant. Problem is that this was never testified to, so it never became evidence allowed during the trial.

Although no one will ever admit that Laci had confided that June 9th is the day she took a home pregnancy test, and received a positive result, it becomes clear during the questioning of Dr. March that there are several people that knew exactly when and how many tests Laci took. Yet the only person to testify that Laci announced her pregnancy that day was one friend, not even her own mother or sister shared that information for the court record – was that strategy on the part of the Prosecutors? And if so, why didn’t the defense ask the questions that would have made this information evidence?

Harris used the missing information to draw attention away from the facts that couldn’t be disputed, such as Laci’s adjusted due date based on Conner’s measurements during the second ultrasound and that she was only 32w a day before she went missing. He made sure the jury knew that there was no notation of a home pregnancy test and that it was “only” an assumption on Dr. March’s part, even though it was a fairly educated and experience based assumption.

HARRIS: Where in the medical records does it talk about Laci Peterson having a pregnancy test on June 9th?
MARCH: I'm not sure that -- the answer to that question is no place. But that's not the question asked of me by Mr. Geragos
HARRIS: Well, okay. Let's go through this then. So nowhere in any of the medical information, would you agree, is there any reference to there being a pregnancy test on June 9th.
MARCH: Change the words from medical information to medical records. The answer to -- I can give you, it's not in it medical records, the information. But the medical information that a pregnancy test was reported.
HARRIS: So you are making an assumption to form a medical opinion; isn't that a fact?
MARCH: Based on 30 years of being a fertility doctor, and knowing how excited females get with a positive pregnancy test, that's pretty good assumption, yes, sir.
~~Testimony of Dr. March – Cross ~~

Although it’s not marked on her medical records, there was a 7:00 a.m. call to family and friends to back the existence of a home pregnancy test with a positive results happening on June 9th, along with the unarguable fact that there was an adjustment to her due date.

GERAGOS: Okay. And what year -- even if you take that out of the mix, somebody still has to account for the fact that Dr. Yip did the six day correction, right?
MARCH: Yes, sir.
GERAGOS: That the measurements, all five for five, were younger? Made the baby younger, correct?
MARCH: Yes, sir.
~~ Testimony of Dr. March / Re-Direct ~~

Even had June 9th never been mentioned – ever, to anyone - the fact that Dr. Yip adjusted her due date by 6 days still had to be accounted for. Instead the Prosecutors downplayed the adjustment and the jury seems to have completely ignored it.

Dr. March didn’t need to add the “assumption” of the home pregnancy test taken on June 9th to come to his conclusion; it was just nice to have since it corroborated what was already documented as fact.

Adjusted Due Date:

Although nowhere on Laci’s medical chart/file is it noted when she took a home pregnancy test, the adjusted due date is very clearly noted, adjusted from February 10th to February 16th by Laci’s attending Doctor, Dr. Yip. The same 6-day difference that adding in Laci’s June 9th positive home pregnancy makes to the equation.

“…….Doctor Yip had to be so, compelled he had -- that he tacked on six more days to the due date. I mean let's face it. He could have done the scan and said I'm happy, but he changed it. There was compelling medical information, four measurements, or five, whatever the number was, none of which was close to 20 weeks two days. In fact, one of them went to 18 weeks zero days. That is 16 days away.”
~~ snipped from Dr. March’s testimony during cross ~~

Why did the jury so easily ignore the importance of Laci’s adjusted due date? An adjustment made long before she went missing. An adjustment that made Conner 6 days younger than her Doctor’s previously figured using the first day of Laci’s last menstrual cycle.

Dr. March and the other experts testified as to Conner’s “age” – and all with exception of Dr. Devore stated in their testimony that there is no scientific way to determine Conner’s age without allowing a “range in age." Simply put, no matter which method or formula is used to determine the age of a fetus, it will never be exact to the day or even within two days.

According to the first ultrasound done, Conner’s fetus measurements fell within the expected range, 10w1d - with “range of age” allowed of plus or minus 5 days.

MARCH: If you could please take the ultrasound -- the next image, the image that's off the -- yes, please. So here is a measurement of the baby and -- which was done on -- on July -- in July, on -- on July 16th. And crown rump length, 32 millimeters. So a caliper was put here on the crown, here on the rump, 32 millimeters. And it is ten weeks one day, okay? And then we drop below ten weeks one day, plus or minus five days.
GERAGOS: What does that mean?
MARCH: That if you have a baby who you measure crown rump length of 32 millimeters, you're going to say that that baby is -- by ultrasound, that's an ultrasound done by the nurse practitioner in their office -- of ten weeks one day. But I can't really lock it in to 71 days because when I have measured babies that were 32 millimeters, some of them were ten weeks and six days, plus five days, and some of them were younger by five days, nine three.
~~Testimony of Dr. March / Direct ~~

During the trial Dr. Devore tried to state that the first ultrasound measurement is considered “gold standard” because there is less room for error when dealing with millimeters. It should be noted that only the crown rump length is available for measurement and that Laci’s was done after what is consider “peak time”. Ideally the first ultrasound is to be done when the fetus is between 7 and 9 weeks. Even with these measurements being considered “gold standard” – there will always be a variation of 5 days either way.

GERAGOS: Gold standard is seven to nine weeks?
GERAGOS: Okay. So you've got one ultrasound that's not in the gold standard time in the seven to nine weeks, right?
MARCH: Right.
GERAGOS: And that says you've got plus or minus five days, right?
MARCH: Yes, sir.
~~ Testimony of Dr. March / Re-Direct ~~

A second ultrasound is standard when the pregnancy is further along - allowing the Doctor to ensure that the child is growing at an expected rate, and that there are no physical concerns with the fetus. In fact, due to the fact that not all women ovulate as assumed on the 14th day of their cycles, it is recommended that a follow up ultrasound be done to confirm the earlier findings.

Many women do not ovulate at around day 14, so findings after a single scan should always be interpreted with caution.
The timing of a positive pregnancy test may also be helpful in this regard to assess the possible dates of conception. A positive pregnancy test 3 weeks previously for example, would indicate a gestational age of at least 7 weeks. Such information would be useful against the interpretation of the scans
~~ ~~
*Fetus bone measurements charts also available at this webpage

During Laci’s second ultrasound, Dr. Yip noted that all the measurements he took, indicated that Connor was at the younger end of the 5-day “range of age”. So much so that he adjusted the due date, for the safety and well being of Conner should Laci have gone past her due date. Based on the fact that every measurement Dr. Yip took during the second ultrasound - not one fit with a fetus age of 20w 2d - but rather all were in the range of 18w3d to 19w 4d.
GERAGOS: Okay. So did Dr. Yip do something on the date of the second ultrasound to change this 20 week two day age?

MARCH: Yes, sir. Because every one of his measurements done that day, the biparietal diameter, 19,4, plus or minus ten days; head circumference, 19 even, plus or minus eleven days; abdominal circumference of 134 would be -- that was not the one entered, but the 134 would be 18 weeks three days. The femur length, plus or minus 14days. Femur length of 32, 19,4, plus or minus six. Because every measurement jumped away from twenty, two -- 20 weeks two days, to a range of 18,3 to 19,4.
GERAGOS: We're talking your attention when we measure the baby at this 9/24 date on the second ultrasound, all five measurements are less than what we would expect them to be?
MARCH: That's correct, yes, sir.
~~ Testimony of Dr. March / Direct ~~

This adjustment, although down played by the Prosecution and ignored by the jury, is a key piece of evidence that, long before it became important in a murder trial, Conner was determined to be 6 days younger. Had Laci not been murdered, and allowed to deliver Conner this information would have been considered important in determining when Laci was “post-date” and an induction would be considered. No Doctor wants to perform an unnecessary induction, causing possible strain on the baby and a possibly longer, more painful labor for the mother. Dr. Yip determined that Laci wasn’t due until February 16th, this was noted on her medical records, so that if Laci was to go past her original due date - she wouldn't of been consider "overdue" until after the adjusted due date.

MARCH: Was younger than should -- than would have been estimated by last menstrual period. And therefore Dr. Yip said I'm not going to expect to deliver this baby as a due date December -- February 10th, I'm going to push it back to February 16th. And the importance of that is if someone goes post-dates, overdue, by a week, so what? By two weeks you're going to get nervous that there may be a problem with the baby. Therefore at about two weeks you would begin an induction. Well, there can be complications with inducing labor, so Dr. Yip said No, no, no, I don't want to think that she may be over two weeks post-dates on February --
GERAGOS: 10th -- 24th?
MARCH: 24th, instead it's going to be March 2nd -- unless there was a leap year day or something. Leap year or something. So he has pushed it six days, so he's not going to get caught doing an unnecessary and potentially dangerous induction. And all of the information was so compelling, coming away from twenty, two, that he made the move, made the shift.
~~Testimony of Dr. March / Direct ~~

"All of the information was so compelling" – this statement should have been worth drawing the juries attention to. That all the measurements and information gathered during the second ultrasound, indicated that Conner was 6 days younger. Dr. Yip wanted to avoid the "unnecessary and potentially dangerous induction," not convince a jury of anything. This was an completely unbiased adjustment of a due date long before it became the key piece of evidence to prove Scott's innocence.

What are the risks of induction? Induced contractions may be more powerful, and have a longer duration than non-induced labor, so they may lead to a more painful labor. This increases the chance that pain medication will be used, with the possibility of risks related to the pain medication. The longer, stronger contractions can interrupt blood flow and oxygen to the fetus, and lead to drops in baby’s heart rate, so continuous monitoring is needed.

The induction consent form for a Seattle hospital states that risks may include “a longer labor time, a higher chance of forceps and/or vacuum use during delivery, a higher chance of a caesarean section delivery, more bleeding or infection, a longer hospital stay and longer length of recovery.” For first time labors, inductions increase the risk of caesarean by two to three times. (

Experts Agree

A common theme during the cross examination of Dr. March was trying to get him to admit that his conclusions didn't agree with other experts that examined the body of Conner. No matter how many times and how many ways Harris asked him, Dr. March always stood his ground that he was not or had never questioned the conclusion of Dr. Allison Galloway’s bone measurements, or Dr. Peterson’s observations during the autopsy. He didn’t even dispute Dr. Devore’s femur bone measurement, he only stated that Dr. Devore’s conclusion was scientifically impossible.

HARRIS: So your entire analysis is based on that particular piece of information, because it's different than what everybody else has, right?
MARCH: No, sir.
HARRIS: Well, aren't you saying that the date of conception is different than what they all saw?
MARCH: Doctor Endraki, Doctor Tow-Der, Doctor Yip, and Doctor DeVore never estimated a date of conception.
HARRIS: All right. We'll go back through that then. Is your date of conception different than everyone else's?
MARCH: I am the -- I believe -- I do not recall any information offered as a date of conception by anyone except the comment by Doctor DeVore, that you never know unless you were there.
HARRIS: And then you've read the testimony of the doctors, what they were saying And so, in terms of the conception, your determination of the date of conception is different than anybody else that made that determination, isn't it?
HARRIS: Are you telling us that Doctor DeVore's measurements of that bone in water is less accurate because it doesn't have any of those distortions that you find in a living human body?
MARCH: Oh, no. Absolutely not.
HARRIS: Now, with regards to this range that you keep talking about, Dr. DeVore said that there was something different about the ranges in his determinations, right?
MARCH: Dr. DeVore, as I understand, gave no ranges. He gave three absolutes.
HARRIS: Well, would not three days be a range?
MARCH: No. No, sir. See, that's -- Dr. DeVore did not give three days. What Dr. DeVore did is he said that Jeanty's formula is everything. So if I measure 64, I get this date. I measure 64.5, I get this date. I measure 65, I get that date. If he had measured 65 three times, he would have gotten only one date. He doesn't give a range. He's locked into this incredibly diverse biologic system, and he gives one day. He is singularly the only person who comes up with a one day. It -- it doesn't make sense.
~~ Testimony of Dr. March / Cross ~~

The point that Dr. March tried so hard to get across is that according to all the scientific information provided to him, through Laci’s medical records while the progress of the pregnancy was being monitored, and through examination of Conner’s remains – that Conner at the time of death was anywhere between 33w and full-term. At the time of Laci’s last prenatal appointment on December 23rd, Conner was determined to be 32w - according to her medical records.

In fact Dr. Galloway’s finding determined that youngest she could measure Conner’s bones at were 35w1d, and only by adding in the “age range” could she get it as low as 33w.

HARRIS: So you would agree that Dr. Galloway is in a far better position to give an opinion about her estimate of bones and the date of the death based on her examination than you are?
MARCH: I didn't know that she gave a date. I read her information. She did a broad range of the age of the fetus based on the measurement of the femur, the humerus, the tibia, and I think the bones in the head. I thought that she measured those. And, in reading her testimony, she measured all of these bones, and her testimony and report -- and she plugged them in to a variety of formulae and gave a range of 36 to 38 -- well, with Sherwood, 35.1, but then -- and this is the interpretation of the forensic anthropologist, which, as you rightly stated, I am not; she understands that you need variation, and she moves two weeks on either side.
~~ Testimony of Dr. March / Cross ~~

Dr. Devore

As is the norm during trials, the Peterson case being no different, a key piece of evidence becomes a battle of the experts. The Peterson case pitched Dr. Devore’s testimony against Dr. March’s testimony. One concluding that Conner died on December 23/24, 2002, supporting the DA’s case; and the later determining he couldn’t have died before December 29, 2005, supporting the defense’s stance that their client, Scott Peterson couldn’t have possibly committed the crime he was being charged with since he was under constant surveillance beginning December 25.

Both Doctors are very well educated, greatly respected and highly knowledgeable in each of their chosen fields of expertise.

Dr. Devore:
-Physician specializing in high risk obstetrics and maternal-fetal medicine
-Consultant for last several years
-Sees about 6000 patients a year
-Estimated – preformed over 75,000 ultrasound examinations during his career
-Over 100 “peer-approved” articles published
-Written “many” chapter in over 25 textbooks
-Spoken at “literally hundreds” of educational meetings for physicians around the world
-Over 90% of his work is related to ultrasounds in fetal medicine.

Dr. March:
-Physician specializing in obstetrics and gynecology.
-Subspecialty is reproductive endocrinology and infertility
-In practice since 1966
-Estimated – preformed about 35,000 ultrasound examinations
-Published over 110 paper in scientific journals
-Written over 80 textbook chapters
-Videotapes / Audiotapes
-Teaching Awards from the University of Southern California
-Named “The Best Doctor in America” in textbooks – the only Doctor in the country named in both reproductive endocrinology and infertility and reproductive surgery.

During Dr. March’s testimony he maintained his respect for Dr. Devore and his expertise. He never once questions Dr. Devore’s measurements of Conner’s femur bone, or the method that was done to acquire the measurements.

HARRIS: So, in fact, you believe that Doctor Devore is an expert, very good doctor in the field that he practices in?
MARCH: I will tell you that absolutely, if you are talking about congenital anomalies, and mid trimester and late mid second trimester and third trimester ultrasound examinations, Doctor DeVore is absolutely excellent, yes, sir.
HARRIS: Are you telling us that Doctor DeVore's measurements of that bone in water is less accurate because it doesn't have any of those distortions that you find in a living human body?
MARCH: Oh, no. Absolutely not.
~~ Testimony of Dr. March / Cross ~~

The following are just a few key problems with Dr. Devore’s conclusion as testified by Dr. March:

It is scientifically impossible to narrow a fetus “age” to within a day. Dr. Devore testified that according to his measurements only ONE day of death was possible – being December 24, 2002 – since the other two dates fall on dates that Laci was known to be alive and well. According to every single method of determining the age of a fetus there is ALWAYS “range of age." Why did Dr. Devore leave this standard procedure out of his calculations?

Dr. Devore used the misconception often used when determining the age of a fetus, that all woman ovulate on the 14th day of her menstrual cycle. Although this is the standard method, it certainly is not the most accurate. The medical information provided in this case certainly suggests that Laci did not conceive as per the misconception but rather up to 6 days later. At no point did Dr. Devore conclude an estimated time of conception, nor did he attempt to, even though as an expert in fetal-medicine he should of known that was an important piece of the equation.

Dr. Devore completely dismissed the conclusions of Laci’s attending Doctor, the same Doctor who preformed and analyzed the second ultrasound. Dr. Devore clearly ignores the adjustment to her due date stated in her medical chart, and the note on December 23, 2002 – that Laci was 32 weeks pregnant.

It is very clear that the difference in the battle of the experts is that Dr. March used all the information gathered as it pertained to the age of Conner before and after his death. He took into account all the notes made on her medical charts, both ultrasounds performed on Conner, police statements of family and friends regarding when Laci found out she was pregnant, the fact that there were several tests done before the positive one – which confirms the adjustment made to her due date.

MARCH: No. That is a different question. The evidence that I have supporting multiple pregnancy tests came from a number of interviews of various friends of Mrs. Peterson that were carried out in pieces of information that were shared with me by Mr. Geragos' office when he sent me a plethora of information.
~~ Testimony of Dr. March / Cross ~~

Dr. March testified that all the evidence gathered by those that examined the remains of Conner and took bone measurements, including Dr. Devore, all agreed that the at the time of Conner’s death he could not have been younger than 33 weeks (at the extreme end of “range of age”), which should have created a problem to the Prosecutor’s case against Scott since Laci was determined by all accounts before her disappearance to be only 32 weeks.

How did the jury miss the importance of what Dr. March testified to? Why did they dismiss his whole testimony based on one moment of frustration? Did they not notice that Dr. Devore – the Prosecutor’s hired gun – left out key facts to come to his conclusion? That had Dr. Devore used the unbiased adjustment to Laci’s due date it would have been devastating to the case against Scott. Even if he had added in the STANDARD “range of age” to his calculation – would have proved damaging to the case against Scott. Or had the jurors already made up their minds by the time Dr. March delivered his compelling testimony??! What ever the reason, the jury missed – the importance of Dr. March’s testimony!

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