Joshua Woodward, after his arrest in 2009.
Continued from Day 1, Part II.....
October 21st, 2013
The people call Dr. Jessica Kingston. DDA Rizzo presents the witness. Ms. Kingston is a trim looking blond. She's wearing a black pant suit with a navy and white print blouse. She looks like she might be in her late 30's or early 40's at the most. Judge Pastor instructs the witness on testifying.
Dr. Kingston is a physician. She works for UC San Diego. She's had the position since 2002. She starts to give her CV. She graduated from Yale Medical School. She started her residency program at UCSD and completed that in 2002. She was offered a job afterwards. She is an Obstetrician and Gynecologist.
The CV is lengthy and detailed in this specialty. I will not repeat it all. She has testified as an expert witness several times before. She was state licensed in 1999 and board certified in OBGYN in 2003. Both of these licenses come from the state. She is also licensed to prescribe DEA controlled medications. She's involved in teaching and supervising on a daily basis. She gives lectures to 3rd year residents every six weeks. She's the course director for first and second year medical students. She does very little research. She's not primarily a researcher; primarily, she's a clinician. She keeps up with the literature.
About 2.5 days a week, she sees her own personal patients and supervises residents with their patients. She spends 1.5 days a week on deliveries and 1.5 days a week in surgery. She delivers anywhere from 100 to 150 babies a year. She assisted in pregnancy termination as part of her residency. She gives statistics on approximately how many pregnancies she terminates in her practice and the methods used in the first trimester and the second. Pregnancy termination can be either medically (with drugs) or surgery. She explains a D&C (dilation & curettage) can be done in office or a medical room with some type of anesthesia.
Medical termination of a pregnancy can be done by prescription medications that will expel the pregnancy. These are usually done at home. She names the drugs that are most often used: Misoprostol and Mifepristone. Misoprostol is a prostaglandin that causes contractions. It is sometimes used by itself but most often it's used in combination with Mifepristone. If the fetus is viable, then they use the two medications. If the pregnancy is non-viable then they use Misoprostol alone. Mifepristone is an anti-progesterone. It acts to prepare the uterus to be more (receptive?) to Misoprostol. It causes the death of the lining of the uterus. It's also known as RU-486.
Misoprostol was mainly originally designed to treat ulcers. If a patient is taking Motrin, it prevents ulcers in the stomach. Off label, in obstetrics and generally out in the world, it's used for the purpose to end pregnancy, to cause contractions. It's used very commonly. There are literally hundreds of published articles related to its use, dosage and to improve patient care. It is widely available by prescription in tablet form. Dr. Kingston uses it in her practice for the management of failed pregnancy in the first trimester and to induce (miscarriage?) in the second trimester. She also uses it to induce labor in the third trimester. The tablets are round or hexagon shaped. People's exhibit #9, an enlarged photo of two tablets. (I found a similar photo on Kaiser Permamente's web site. This image looks similar to People's exhibit #9. Sprocket)
100 micrograms tablet
The trade name for the drug is Cytotec. Dr. Kingston is not aware of the drug being available in powder form in the US. She has never prescribed it in powder form. Her practice is to first prescribe Mifepristone followed by a day or two later, Misoprostol. This is the best an safest method. The first drug prepares the uterus. Misoprostol can be used alone in the first trimester. It is dose dependent. The more doses given, the more effective it is. As dosage increases, the potential for side effects increases. In the second trimester, the two drugs is the best way. Dosage depends on the gestational age of the fetus. Typically, 400 micrograms is taken every three hours.
(In the second trimester?), she would not recommend it be done at home. Typically done at the hospital. There is a risk of bleeding. The patient also may need surgical intervention. It's risky for the mother to do at home.
MR: Are there differences in gestational age as for as effectiveness?
JK: It depends on the dosage and the time frame administered .... medically. ... As gestation advances ... use smaller doses.
In the second trimester, medical termination is not common. Surgical procedures are 80 to 90%. Medical termination is 10- 20%. In the third trimester it's used to induce labor and help treat hemorrhaging and stopping bleeding.
Dr. Kingston is given a series of hypothetical questions about a patient pregnant at four weeks, twelve weeks and thirteen weeks, and how effective Misoprostol would be if given alone. At four weeks: Dr. Kingston states that without knowing the dose, it's hard to answer. But it the patient was given a dose that's effective, then there's 40 to 80% chance it will be effective (cause miscarriage). 800 micrograms would be more effective than 200 micrograms. A lower dose could be given, but the percentage of causing a miscarriage would be closer to 40%. A higher dose, a higher percentage of success.
A patient at 12 weeks in their pregnancy, a low dose may not be effective, or it could take longer. A low does could be effective. It either wouldn't work or take longer. A higher dose is more likely to work and take less time.
A patient at 13 weeks in their pregnancy would probably be very similar. It's dose dependent and the success rate would depend on the amount of the dose. The other issue is how often would it be given.
The medication could be given orally, vaginally or rectally. It's also been given to be absorbed into the gums. Some studies say give the medication orally; some say vaginally. Some studies say vaginally is better, other studies contradict that. It depends on patient care. Age is not a factor. The factors are gestational age, amount of dose and frequency. Orally, pill by mouth. Buccal, tablet places sublingually. Vaginally, placed vaginally. Rectal, placed rectally. The entire pill is placed in these areas. Some centers have gone away from vaginally, possibly because of infection.
Dr. Kingston prescribes to her patients vaginally. With vaginal insertion, side effects are less. Side effects are nausea, fever, diarrhea and abdominal cramping. This is seen in 5-10% of patients. Higher doses cause more side effects. Another possible side effect is wooziness, malaise. The process is faster with vaginal placement verses oral. Dr. Kingston has seen that in her practice as well as in the literature. Dr. Kingston states that if a patient experiences side effects, they would occur one to two hours after administering the medication. The timing would be dose dependent as well.
Dr. Kingston is asked about ultrasound and how it's used in monitoring pregnancy. She testifies she has performed approximately thousands of ultrasounds. One of the uses is to determine gestational age. Lots of information about pregnancy can be determined with this test. Dr. Kingston explains the nuchal translucency test which is part of an ultrasound screening. It refers to a measurement that's taken during an ultrasound in the later part of the first trimester. It's used to identify a patient or fetus risk of chromosome abnormality. There are other measurements taken; it's just a part of an ultrasound.
Dr. Kingston reviewed Ms. Doe's medical records. The defense will stipulate to the Cedar Sinai medical records. The court accepts the stipulation for the preliminary hearing only. Dr. Kingston reviewed 51 pages of medical records, presented as people's exhibit #10. Another packet of images, people's exhibit #11 consist of 33 images in all. (Ultrasound images. Sprocket.)
Dr. Kingston reviewed the documents before today. She is asked to look at a particular page of the report, stamped EVID 1627, an ultrasound report. She's seen this type of report in her practice many times. She goes over several of the notations and code words in the report. To date a pregnancy, the method is to use a combination of the ultrasound and date of the last menstrual period. It helps physicians determine how far along a pregnancy is.
An ultrasound conducted on Ms. Doe on October 8th, 2009 calculated the gestational age as 11 weeks, 5 days. The estimated due date from that ultrasound was April 24th, 2010. A program is used to calculate the age and estimated due date. The notations and programs used in the ultrasound are standard in the OBGYN community. If the ultrasound is done well that estimate could be within a week of the actual due date.
Another page of Ms. Doe's medical records, EVID 1611. This is the ultrasound that also included the nuchal translucent test on October 13th, 2009. I believe Dr. Kingston states there were no abnormalities noted in the test. Dr. Kingston is asked to go over the ultrasound images, people's exhibit #11.
I look over at the couple on the defense side whom I believe are Woodward's parents. The woman is sharply dressed in a gray and black suit with what looks to be a light gray sweater and a burgundy necklace. She's wearing tortoise looking glasses and black knee high boots. Her gray hair is nicely styled in a type of wedge cut that comes down around her jaw line. The man has longish gray hair, a full beard and a bit of a portly belly.
I believe there are many images in people's #11, and the prosecution presents about six or seven of them. Dr. Kingston points out the features in the images that show the parts of the baby. The basic anatomical features are outlined in this fetus.
From the report of October 13th, 2009, based on all the measurements taken, the gestational age of the fetus was 12 weeks and 2 days. The fetus was in the second trimester. After a review of the report and a review of the images, Dr. Kingston agrees that the gestational age on that date was 12 weeks and 2 days.
MR: Based on the images and review of the report, did there appear to be any fetal abnormalities?
JK: There are no fetal abnormalities documented on the report. .. All documents ... as being within normal limits.
MR: And your opinion, based on your review of this report, so far, was the pregnancy proceeding normally and viably?
I believe the witness answers "Yes." Judge Pastor interrupts the proceeding to take the afternoon break.
At the break, Judge Pastor's court reporter, Mavis, is kind enough to give me the correct spellings of the two medications as well as names of the defense counsel. Mavis is an excellent court reporter. I first got to know her during the retrial of Cameron Brown back in July and August 2009.
I see Woodward going over a legal notepad he had been writing in earlier.
Dr. Kingston retakes the stand. A minute later, Judge Pastor retakes the bench. Detective Shafia is excused and ordered back at 9:00 AM tomorrow.
DDA Rizzo presents Dr. Kingston with a hypothetical. A pregnant female is given a 'Jamba Juice.' She drinks half the drink. A half hour later, the female begins to experience vomiting, diarrhea, cramping.
MR: Is it consistent with consuming Misoprostol?
Continuing with the hypothetical. A man inserts his fingers into the woman's vagina over several hours during foreplay. At 8:00 AM, she experiences chills, vomiting, diarrhea, cramping. Going to the bathroom, she sees blood on the toilet paper. She feels pressure in her abdomen area. Sitting on the toilet, she expels water, clots and then her fetus.
MR: Is that consistent with vaginal exposure to Misoprostol?
This is her expert opinion based on onset of symptoms, her background and experience. Dr. Kingston states that most spontaneous miscarriages (those without medical intervention) usually occur before the 10 weeks of gestational age. Five to ten percent of pregnancies miscarry. 80 to 85% occur prior to the 10 week period.
JK: It is rare to see spontaneous miscarriages .... in the second trimester ... based on a normal pregnancy.
MR: What are some medical reasons for spontaneous miscarriages?
JK: If the fetus is chromosomally abnormal ... if infection ... (the patient has) undergone amniocentesis ... accident ... or the mother is exposed to a toxin.
MR: Would Misoprostol ... could be considered a toxin?
JK: If it's not expected.
MR: After reviewing Ms. Doe's medical records ... do you have an opinion (if?) she suffered from (chromosome abnormality?)?
JK: The possibility of that was low.
MR: ... Cystic Fibrosis... ?
JK: ... no indication ...
MR: ... illicit substances ... ?
JK: (Ms. Doe was?) ... screened for it after (the miscarriage?). ... no indication.
There was no evidence of infection or injury to Ms. Doe.
MR: After a review of her medical records, was Ms. Doe healthy?
MR: Was the fetus healthy?
MR: (Based on your background?) ... In your opinion was the miscarriage of Ms. Doe's in fact a natural event?
JK: Highly unlikely.
MR: (Please) list your reasons.
The pregnancy was normal. The gestational age. I believe there are more reasons listed that I miss. Dr. Kingston is asked as to the chance the miscarriage being a chance of spontaneous abortion.
JK: For this patient, based on patent's history, ... the chance that this was a spontaneous miscarriage would be less than one percent possibility. ...
The patient experienced vomiting. A woman who has a spontaneous miscarriage doesn't typically have chills, vomiting, nausea, diarrhea.
There is an objection to one of the questions and the objection is sustained.
MR: Assume the patient experienced nausea, vomiting. .. In your experience, would this be a spontaneous event?
In Dr. Kingston's opinion, Ms. Doe's miscarriage was due to an abortifacient specifically Misoprostol.
Direct is finished and Kelly T. Currie steps up to cross examine the witness. Mr. Currie takes the podium over to the defense table prior to his cross. Mr. Currie takes out several files. In a slow, even monotone, Mr. Currie introduces himself to the witness. He also tells the witness if there is any question that they don't understand, to let him know and he will repeat it.
Dr. Kingston is asked when she was first contacted by the prosecution.
JK: I can't remember the specific date. Probably 1.5 to 2 years ago.
KC: Who was it (who contacted you?)?
JK: Ms. Rizzo.
KC: (You were?) retained by the District Attorney?
KC: What was it you were asked (to do?)?
JK: To review reports and render an opinion.
Previously, Dr. Kingston worked for the Medical Board of California as an expert, similar to today. She's testified five times before. Her work for the medical board involved medical malpractice. The type of cases were standard of care cases; a doctor being sued for malpractice in cases over $30,000. She is being compensated today for her work. She's never been retained in a criminal case before. Dr. Kingston is asked if she is a pharmacologist or a toxicologist. No, she isn't. Ms. Doe was never Dr. Kingston's patient. She never examined Ms. Doe. She never spoke to Ms. Doe by phone or had any conversations with her before.
Dr. Kingston prepared a report for the District Attorney. She reviewed medical records and investigative reports.
JK: This is the complete set of medical records I reviewed.
KC: You said you looked at witness statements?
JK: I believe they are police reports.
KC: (I'm) going to ask you to look at a documents to see if they are the basis of your opinion today.
Mr. Currie hands the witness a 3-ring binder with divider tabs. Counsel also gives a copy to the court. The people have no objection. Judge Pastor indicates the binder contents are alphabetically marked.
The first document in the file is EVID 31-32. A (continuation?) sheet and injury report. Dr. Kingston states it looks familiar. She can't tell for certain. In preparing for her testimony today, she reviewed her report she prepared. I believe the next document presented is a statement by Ms. Doe. Dr. Kingston states she can't be 100% certain, but that it looks familiar.
KC: Did you look at crime lab reports?
KC: EVID 62-63. Request by Detective Shafia ... reviewed in this case?
KC: EVID 64 (is this one document you reviewed?)?
KC: EVID 65 (is this one document you reviewed?)? ... Inter-department correspondence?
And it went on. Questions about several documents and if she reviewed this document to form her opinion. EVID 66, report of drug property collected. EVID 67, receipt from DEA. EVID 68, DEA lab report. EVID 69 LAPD lab report reviewed. EVID 70 US DEA, report, drug property collected. EVID 71 receipt for cash or other items. EVID 72 lab report from Dept. of Justice.
KC: Did you review any other criminal or lab report?
JK: No, not that I recall.
KC: EVID 79-82, appears to be an investigative report, related to Ms. Doe.
KC: These are all the documents the prosecution provided to you?
KC: EVID 88-89, another follow-up, LAPD investigative report?
She reviewed a statement that appears to be from Ms. Doe on 10/27.
KC: EVID 96-101, report about interview of Ms. Doe on 10/24/10. ... Is that a document you reviewed?
KC: Tab 17, Defense exhibit A, ... appear to be EVID 493-517 ... is that a document ... appears to be a transcript of Mr. Woodward's (statement?)
KC: Do you remember seeing any other interview reports/
JK: No other interview reports.
KC: (Did you?) Review any recording of ... interview (of Ms. Doe?)?
KC: You ultimately prepared a report for the (DA? prosecution?) ... March 29th, 2012 ... ?
JK: I don't remember the exact date.
KC: (It?) was in June 2012 you prepared a report?
Mr. Currie would like to mark for identification, defense B, purports to be communication between the district attorney and Dr. Kingston. EVID 518, a letter to Dr. Kingston from DDA Rizzo, dated March 29th 2012. It's related to her being retained by the prosecution. EVID 529, a letter that Dr. Kingston wrote to Ms. Rizzo related to this case. Dr. Kingston's report is three and a half pages long. EVID 530, 531, 532, 533.
KC: In preparing this report, did you speak to any witnesses?
KC: Speak to any med(ical? personnel?) reviewed in (these reports?)?
KC: Speak to detectives who prepared reports?
KC: Speak to lab technicians in regards to ... lab work or testing?
KC: Do you remember ... Did you keep track ... how many hours ... working on this matter?
JK: The time from reading the records and literature review ... approximately five hours.
Dr. Kingston listed in her report, reference literature. She believes she looked at more literature beyond what she listed in her report, but only listed the literature she thought "were the most authoritative." She did not prepare any other drafts of her report.
KC: Did you speak to the prosecutors about what should be included?
KC: ... report .. summary of facts ... you thought were most relevant to your opinion?
KC: Is (there?) anything in the report that's based on (other information?)?
Mr. Currie then asks Dr. Kingston, based on her experience, about the information she gathers for a patient, the questions she would ask about the patient history and lifestyle. This is to determine the patient health and to determine unhealthy behavior that could impact the pregnancy. The reason to ask specific questions is to determine the risk factors. There are certain things Dr. Kingston would look for.
KC: Spontaneous miscarriage refers to loss of pregnancy without outside influence or interference?
Ms. Doe's age, 39 was the only identifiable risk factor Dr. Kingston considered. When the mother's age is above 35, there is a risk for chromosomal abnormalities. If the fetus has chromosomal abnormalities, that's a risk for pregnancy loss. It's recommended that pregnant women have their first OBGYN appointment within the first trimester. Risks for pregnancy increase with advanced age.
KC: Cigarette smoking, is it a risk?
JK: It's controversial.
More than a pack a day (would be risky) but it's hard to say based on the evidence. Dr. Kingston would not recommend continuing to smoke to her patients. It could cause constriction of blood vessels. It could also cause blood clots that could get to the fetus. It has not been definitely proven. Mr. Currie asks about second hand smoke.
JK: I can't recall if I saw ... but the literature doesn't support that it's a direct cause.
If Ms. Doe was Dr. Kingston's patient, she would definitely ask if she was a smoker. EVID 1621, documentation of a visit with Dr. Timothy Tsui, half way down the page it states tobacco use "non-smoker."
JK: I don't believe I considered it at all ... considering it said (Ms. Doe?) non-smoker.
Defense exhibit C is presented to the witness. It's a medical record obtained from Cedar Sinai that was not part of the documentation introduced by the prosecution. I'm not sure if thee is an objection, but I believe DDA Balian stipulates to the chain of custody of the records. DDA Balian who adds that the documents appear to be, ... not a complete set of records. It's an imaging report on Ms. Doe. An examination from April 27th, 2009, approximately three months before she became pregnant. It appears there were two views of her chest that were taken. The report says the patient was a smoker.
KC: Is it your opinion that (medical?) information is provided by the patient?
JK: It's elicited in the course of taking a history.
KC: It April 2009, it appears patient was a smoker?
JP: Sustained. (As to the form of the question.)
KC: Dr. Kingston, if you were Ms. Doe's obstetrician, and (she is?) a 39 year old expectant mother, would you want to know if she was a smoker for pregnancy risk?
JK: From the point of overall health ... The records I reviewed said she was a non-smoker.
Mr. Currie asks about alcohol use. The word teratogen is introduced. It's a substance or medication that can cause abnormalities.
KC: Is alcohol use something that could cause spontaneous abortions?
Dr. Kingston would recommend to her patients to abstain from drinking.
KC: Do you see anything in the medical reports where (the? her?) doctor asked about alcohol use?
JK: There is a question about caffeine and other drugs but I don't see alcohol asked specifically. ... I don't see it specifically documented.
KC: Do you see anything in the police report where the police asked about alcohol use?
I believe Dr. Kingston states she would not have considered it since she didn't have the information in the medical reports.
KC: Did you know she worked as a bartender?
KC: Is caffeine consumption something you would consider as a risk for spontaneous abortion?
JK: ... more than 300 mg per day. ... (That's) two 8 oz. cups of coffee.
KC: Is it considered a risk in spontaneous abortions?
JK: Yes, in amounts more than 300 mg. per day.
Mr. Currie presents people's 10, EVID 1623. The report indicates Ms. Doe had caffeine about once a day, and asked if there was evidence that Ms. Doe consumed more than that.
JK: The evidence (in the literature?) is that it's a risk for first trimester loss.
If there was evidence (of more consumption?) she would consider it. Other drugs are mentioned.
KC: Is cocaine use a risk factor for pregnancy loss?
KC: Ms. Doe was asked about drug use?
KC: ... and that other drug use (on a history form) is usually refers to illicit drugs?
JK: That's a fair assumption.
KC: Did you see anything in ... police report whether or not she used illegal drugs?
KC: If there was in the police report ... Is there any information in your review that ...
JK: there was a test done on her after losing the pregnancy. ... test for cocaine use and that test was negative.
KC: Would you know about a test on hair for cocaine use?
JK: I'm not familiar. ... don't typically test (hair?). ... The test we use is urine.
Mr. Currie asks Dr. Kingston about the fact that Ms. Doe had an elective abortion in 2003. He directs her to her report, page 2.
KC: You write ... "her past history ... one pregnancy terminated in 2003 without complications?"
KC: Did I read that correct?
JK: Yes. ... I made an assumption that it ... based on how it was documented in the chart ... a doctor will document more in the second trimester ...
KC: So the absence of notation ... like you described ... as to how the procedure was done ... and that was the basis of first trimester?
The risks to have an elective abortion are reviewed. Infection, ongoing bleeding, damage to the cervix. Dr. Kingston states these risks are less than 1 per 1,000. In the second trimester, the complications are more severe. It is less than 1 per 1,000 that it could affect future fertility.
JK: The lack of information leads me to believe it (the elected abortion) was in the first trimester.
KC: Were the records to 2003 made available to you?
KC: do you know if 2003 records were made available to her doctor?
JK: It was based on ... there was no information in her medical records that documented complications (of the elected abortion).
KC: Are you familiar with reports that show a link between elected abortions and risk of miscarriage?
KC: Did you consider that her pregnancy ...
JK: There's no consistent reports in the literature to support that.
There are other studies that refute that. Dr. Kingston states there are more studies, a preponderance of evidence supports that there is not an increased risk that having an elective abortion increases the risk of miscarriage in the future. I believe Dr. Kingston is asked about if she considered infection and it's risks in her opinion. Infection can affect the fetus and cause malformations. There are questions about penicillin and allergies to penicillin. There is a notion in Ms. Doe's medical records that she became aware of an allergy to the drug on July 25th, 2007. The patient had a past medical history of chronic UTI's (urinary tract infections).
KC: Did you consider that (UTI's?) in her risk?
JK: It's only a problem if she has a current infection.
Ms. Doe's medical records indicate that she was prescribed Cipro for a bladder infection in her first month of pregnancy.
JK: I recall seeing previous records from previous (doctors?) that treated bladder infections.
KC: When was that?
JK: When she saw Dr. Crystal (sp?) on August 21st.
EVID 1631, documents the lab result for that day. She had acute visit with Dr. Crystal EVID 1637 on August 20th.
KC: She was having frequent urination? ... Is it associated with being pregnant?
JK: It can be.
The medical reports indicate she was prescribed medication. The result of the urine analysis was negative. Dr. Kingston states that sometimes physicians prescribe if they have a suspicion, so it's hard to say. It appeared in Ms. Doe's medical records as being prescribed.
JK: It's on her list. ... but there's no chart note that she's actually taking it.
Ms. Doe's medical history indicated that she was sexually active. Her current form of contraceptive indicated "None." There are more questions about Ms. Doe's medical history and medications she was prescribed in the past and whether or not those medications are a risk for miscarriage.
Judge Pastor interrupts the cross examination to ask counsel about picking a future date for this witness to come back. Tomorrow the prosecution has Detective Shafia back on the stand as well as two other expert witnesses: the toxicologist who tested evidence and Dr. Tsui, Ms. Doe's doctor. There is an agreement that tomorrow they will begin with the experts and finish with the detective, but picking a date for Ms. Kingston to come back becomes problematic. The court tells counsel Dept. 51 is dark on Friday and Monday. The week of November 4th, Ms. Levine has jury duty, and another time frame Ms. Levine is out of town. November 11th is a court holiday. They could tentatively set for November 4th, but Mr. Currie is in NY and would have to arrange travel . The defense states they have about another 30 minutes of cross of Dr. Kingston. Monday's are best for Dr. Kingston, so the date for her to return is November 18th at 1:30 PM.
However, there is another serious issue that Judge Pastor informs counsel. It has to do with a lapse in the preliminary hearing proceedings that goes beyond 10 days. That would violate the defendant's rights. There are consequences without a waiver from the defendant. The defendant is out on 4 mil bond. If a waiver is not received from the defendant, the court would be obligated to release the defendant on his own recognizance. Joshua Woodward waived his right to have his preliminary hearing within the 10 day time frame, and the long break between today and November 18th.
And that was it for the first day of the prelim.