Accountability: Carswell Reply — Daniel E. Holloway, Attorney

At trial, Emory sponsored testimony that Jeni Carswell suffered a cardiac arrest. Now, in their Response, Emory does not dispute, and therefore concedes, the objective facts that Jeni Carswell never lost a heartrate or blood pressure. On the universally understood meaning of “cardiac arrest,” those facts mean that Jeni never suffered cardiac arrest. But instead of admitting their misstatement and apologizing, Emory redefines “cardiac arrest.”

With nowhere to go, Emory redefines cardiac arrest as cardiac or respiratory insufficiency. That is, Emory redefines the term to include the condition Jeni Carswell did have — respiratory depression.

Emory’s redefinition is false: It contradicts the universally accepted meaning of “cardiac arrest” within the medical community. Thus, despite three months to file their Response, and despite the vast resources of Emory and Jones Day, they have not identified a single piece of literature to support their redefinition of “cardiac arrest.” Dr. Guzzi’s affidavit cites nothing to support his redefinition — not a single item of literature. Dr. Guzzi invokes the American Heart Association, but he does not present even a lone, solitary publication from the AHA. Apart from a dictionary cited by Plaintiff, Emory’s brief cites one item of literature, and misrepresents it.

From the lone article they cite, Emory quotes only this passage: “Cardiopulmonary arrest (CPA) is the cessation of effective ventilation and circulation. It is also known as cardiac arrest or circulatory arrest.” Emory overlooks the word “cessation” and fastens onto the word “effective” — to insinuate that the article supports Emory/Guzzi’s redefinition of arrest as insufficiency. But the article itself refutes the insinuation — by making clear that a patient in cardiopulmonary arrest has no pulse:

Emory did not quote any part of this passage for the Court, although it’s on page four of a document that’s only eight pages long. As we show below, Emory similarly misrepresents the dictionary definition they discuss in a footnote.

Alongside this brief, we file into the record a small mountain of medical literature defining “cardiac arrest,” including multiple articles by the American Heart Association. We also file affidavits by six physicians and a nurse, which confirm that there is no controversy about the meaning of “cardiac arrest.” Those medical experts state flatly: “As a representation of the meaning of ‘cardiac arrest,’ Dr. Guzzi’s affidavit is unfounded, unreliable, misleading, and false.”

Even to a non-medical person, Emory/Guzzi’s redefinition of cardiac arrest as cardiac (or respiratory) insufficiencyshould sound dubious. Many of us are familiar with forms of respiratory or cardiac insufficiency — for example, asthma, COPD, or congestive heart failure — that many people live with for years. The American Heart Association writes, for example: “Heart failure is a chronic, progressive condition in which the heart muscle is unable to pump enough blood to meet the body’s needs for blood and oxygen.”[1] Respiratory or cardiac insufficiency can be dangerous. But cardiac arrestdiffers fundamentally from cardiac or respiratory insufficiency. Cardiac arrest is the “cessation” — not “insufficiency” — of cardiac function.

We mentioned that Emory does not dispute the fact that Jeni never lost a heartrate or blood pressure. Additionally, Emory makes two other important, silent concessions. First, Emory does not say we have mischaracterized Dr. Guzzi’s cardiac-arrest testimony or Emory’s closing argument. Second, Emory does not say the testimony or argument were inadvertent mistakes. Emory’s concessions (and the meaning of “cardiac arrest”) seal their responsibility for perjured testimony.

But Emory does not admit the falsehood and ask for leniency. Instead, they dig in. They redefine “cardiac arrest” in order to say falsehood is truth. Emory defends one lie with another. First they lied to the jury. Now they lie to the Court.

The evidence in the record is conclusive: Emory presented intentionally false testimony to the jury. That perjury may have — we would say likely did — contribute to the hung jury that wasted judicial resources and caused Jeni Carswell more delay. Emory’s continuing dishonesty confirms their intent, and shows that robust remedies are necessary to vindicate the authority and integrity of the Court.

Note: We submit voluminous evidence in response to Emory’s new argument. Plaintiff does not object to Emory submitting additional evidence or briefing. Nor will Plaintiff object if Emory asks for more time.

THE TESTIMONY AT ISSUE

The transcript of Dr. Guzzi’s trial testimony is now available. We collect the testimony at issue in an Appendix to this brief. In short, Dr. Guzzi testified at trial that Jeni Carswell suffered a cardiac arrest at around 6:20 AM to 6:40 AM — during the “Code Blue” event, after which she was taken to the ICU. That is, Dr. Guzzi testified that Jeni suffered a cardiac arrest after she was discovered in bed unresponsive and after the “Code 3” (also known as “Code MET”) was initiated.

The timing is important, because in that time frame Jeni’s heartrate and pulse were continually monitored — first by the nurses and physicians during the Code events, and then by the ICU. In that time frame, we have vital sign readings that show that Jeni maintained her pulse and blood pressure — that is, never went into cardiac arrest.

THE PERJURY

1. Dr. Guzzi intentionally gave false testimony.

Emory’s Response spends only two pages arguing that Dr. Guzzi’s testimony was true. (Response, 7-8.) Emory relies on Dr. Guzzi’s unsupported affidavit to create a fact dispute, a “battle of experts.” (Response, 8-9.) It does not.

Dr. Guzzi’s affidavit does not suffice to create a dispute. The law recognizes that expert witnesses sometimes offer “garbage science.” Here, Dr. Guzzi’s testimony does not rise even to that dignity. Dr. Guzzi simply fabricates a new definition of “cardiac arrest.” Given the uniform mountain of countervailing medical literature (as well as his own prior admissions), and the complete absence of literature supporting Dr. Guzzi’s affidavit, Dr. Guzzi’s affidavit cannot be relied on for the meaning of “cardiac arrest.” There is zero evidence to avoid a finding that Dr. Guzzi’s testimony was false, and that he knew it was false when he gave it.

1.1. Dr. Guzzi’s cardiac-arrest testimony was false.

The falsehood of Emory’s testimony is stark. “Cardiac arrest” means what it means, and Jeni Carswell never lost a heartrate or blood pressure.

1.1.1. Cardiac arrest is defined as the complete loss of cardiac function — including loss of heartrate and blood pressure.

Within the medical community, “cardiac arrest” has a universally understood meaning: the heart stops pumping blood to the rest of the body. Emory offers the Court a new, fabricated definition — and tries to pass it off as the medical community’s definition.

The definition of “cardiac arrest” is a matter of empirical fact, not opinion.

A man can point to a cow and call it a horse, but that doesn’t make the cow a horse. And having a veterinarian call the cow a horse does not make it a “battle of experts.” It makes the veterinarian a liar.

Before presenting the evidence on the definition of “cardiac arrest,” we first address one unavailing escape route: Emory tries to escape by invoking “opinion” and a “battle of experts.” And indeed, the most comfortable escape from this difficult motion, for any of us, would be to brush it aside as a matter of expert opinion. We tried this escape route ourselves. While fretting over whether to file this motion — looking for a way out of a motion that would damage professional relationships and put a bullseye on our backs — we entertained the idea that the meaning of “cardiac arrest” is just a matter of opinion.

But that idea is false. More than false, it is fatuous, dishonorable, and dangerous. Obviously, as any precocious child realizes, words begin as arbitrary sounds that attach to meanings arbitrarily. No law of nature prevents “false” from carrying the meaning we ascribe to “true.” “No” could have meant what we mean by “Yes.” “Cowardly” could have meant “courageous.” “Weak” could have meant “strong.” But words get their meanings from language communities. We don’t each have our own private, idiosyncratic language. If we did, we’d live in the Tower of Babel. Instead, when for example we hear the phrase “brain damage,” its socially created meaning comes into our minds automatically. We have no choice in the matter. However much its meaning might break our hearts, the phrase means what it means, and we’re powerless to pretend otherwise. Thus, lexicographers don’t write dictionaries by flights of fancy. They perform empirical research, to identify what words actually mean in the community. The meaning of terms is a question of fact, answerable by empirical research — all the more rigorously for terms of art.

In this way, words are like money — another social construct that begins life arbitrarily. A “US dollar” and its value could, in theory, have been anything. In fact, though, a US dollar has a specific, socially constructed meaning. Courts therefore do not allow people to rely on private meanings as to a “US dollar.” When a man buys a car and pays for it with “US dollars” he printed off his computer, the courts call him a counterfeiter and order him to prison. The courts do not shrug impotently and say “well, I guess it’s a battle of experts as to what a US dollar is.”

Our law — especially our textualist Supreme Court — recognizes that words have determinable meanings. If the law were to pretend otherwise — Who knows what words mean? They could mean anything! Experts can disagree!!! — the law would be a useless chaos, exploited by charlatans, respected by no one. Documents would mean nothing. Testimony would mean nothing. Contracts would mean nothing. The oath would mean nothing.

Cloaked under the authority of “expert opinion,” Emory pushes a dangerous argument: that words mean nothing in particular. On Emory’s view, fraud, defamation, breach of contract, etc. could be neither proscribed nor remedied, because they are based on words. Indeed, the vile but once-successful defense of some crimes was similar: that “No” meant “Yes.” In a world with law so corrupt as to disregard the empirically determinable meanings of words, the law would be less an Alice-in-Wonderland farce than an accomplice to criminal abuse.

The meaning of “cardiac arrest” is a question of fact. How the healthcare community uses the term is answerable by empirical evidence. We have put that evidence into the record. Emory has no more license to assert a private definition of “cardiac arrest” than a criminal has to assert a private definition of “No.”

The medical community defines “cardiac arrest” as complete loss of cardiac function.

With this brief, we file an affidavit presenting medical literature defining “cardiac arrest.” The affidavit submits 133 items of literature, including 78 from the American Heart Association. Here, we present just a few examples:

American Heart Association Scientific Statement[2]

American Heart Association website[3]

National Institutes of Health[4]

National Institutes of Health, MedlinePlus Encyclopedia[5]

This meaning of “cardiac arrest” is without controversy in the medical community.

Expert affidavits confirm the absence of controversy about the definition.

In addition to examining the literature, we also consulted physicians from a variety of practice areas, and a nurse, on the issue. Every expert readily confirmed the medical community’s definition and confirmed that Dr. Guzzi’s attempted redefinition is blatantly false. No expert we consulted even entertained, let alone supported, Dr. Guzzi’s redefinition. We consulted:

· Dr. Meldon Levy, cardiologist

· Dr. Eric Gluck, critical care physician and pulmonologist

· Dr. Brian Stettler, emergency physician

· Dr. Jonathan Schwartz, internal medicine physician & hospitalist

· Dr. Stephen Cohen, colorectal surgeon

· Dr. Peter Mowschenson, general surgeon and thyroid surgeon

· Monica Benitez, RN, NP, critical care nurse and geriatric nurse practitioner.

Each of these experts provided an affidavit stating in substance that:

· “Cardiac arrest” is a simple, elementary, long-established concept in medicine. It has a universally understood meaning.

· Even medical and nursing students know this definition.

· “Cardiac arrest” means the heart has stopped pumping blood — so that the patient loses a palpable pulse and blood pressure.

· Cardiac arrest can arise from a variety of causes. But whatever the cause, the defining characteristic of cardiac arrest is that the heart ceases to pump blood.

· A patient with a palpable pulse and even very low blood pressure is not in cardiac arrest, by definition.

As to Dr. Guzzi’s reference to cardiac or respiratory insufficiency:

· Insufficient respiratory or cardiac function exist in varying degrees, from a wide variety of illnesses. Common causes of insufficient respiratory function include asthma, COPD, and pneumonia. Common causes of insufficient cardiac function include coronary artery disease, prior heart attack, and congenital heart defects.

· People may live years with chronic respiratory or cardiac insufficiency.

· Respiratory or cardiac insufficiency does not progress to cardiac arrest unless and until it stops the heart from pumping blood.

Dr. Guzzi acknowledges the true definition of “cardiac arrest” in other sworn testimony.

In his deposition, Dr. Guzzi acknowledged the true definition of “cardiac arrest.” He testified that a patient with a heart rate and blood pressure is not in cardiac arrest:

Guzzi Deposition, Page 167

Q. So what does the heart rate and blood pressure information on the code sheet tell us?

A. That we have a patient who has active blood pressure that is not in cardiac arrest yet, is in respiratory arrest with a saturation of 82%.

Guzzi Deposition, Page 170

[W]hen they get to the bedside, she’s still got a blood pressure and a heart rate. If she had progressed on to cardiorespiratory -- or, sorry, respiratory cardiac arrest, as we talked about earlier, her heart should already be checked out by then. But she has a blood pressure of 140 over something and she actually has a heart rate and a saturation of 83, 84%.

Guzzi Deposition, Page 206

Her blood pressure and heart rate were still present, so she had not gone on to cardiac arrest, so she wasn’t at the end stages of her process. She was still somewhere in the early stage.

By analogy, Dr. Guzzi also admitted that respiratory arrest means breathing stops completely:

Guzzi Deposition, Page 78

Respiratory distress is me being short of breath after running. Respiratory arrest means you stopbreathing. Jeni had stopped breathing. It’s respiratory arrest.

Even in his trial testimony — on the first day of his two-day testimony — Dr. Guzzi let slip a rough acknowledgment of what “cardiac arrest” really means:

Guzzi Trial Testimony, June 15, 2022, Page 55

Q. What does that mean? Why is she going to the ICU? What’s a code blue versus a code med?

A. I’m assuming she’s going to the ICU because of altered mental status or respiratory distress, pulmonary insufficiency. I’m assuming when she gets to the ICU that she now has a cardiac arrest where either her heart stops, they don’t have a blood pressure or she is not responsive.

The ending phrase there — “or she is not responsive” — makes this passage unclear. But the passage at least approximates an acknowledgement of the meaning of “cardiac arrest.”

Whatever he says now, Dr. Guzzi knows that cardiac arrest means the heart has stopped pumping, and excludes people with a pulse and blood pressure.

Emory/Guzzi try to defraud the Court with a counterfeit definition.

Emory now asks the Court to believe that cardiac arrest occurs, not only when the heart stops pumping blood, but any time there is insufficient respiratory or heart function. Emory writes that Dr. Guzzi’s affidavit “establishes” that here:

poor perfusion led to cardiac arrest. This was not a cardiac arrest based on the heart actually stopping, but on the heart failing to receive sufficient oxygen.

(Response, 7.) Emory goes on to write that Dr. Guzzi’s affidavit “establishes” that:

Cardiopulmonary arrest, or CPA, is a type of cardiac arrest that is defined by ineffective ventilation and circulation, and that type of cardiac arrest is what is documented by the readings in Ms. Carswell’s medical records.

(Id.) In his affidavit Dr. Guzzi says “cardiac arrest” includes respiratory, cardiac, or perfusion function that is “ineffective,” “insufficient,” or “inadequate”:

¶ 8. … The ineffective ventilation and circulation … present classic, definitional indicators of cardiopulmonary arrest (CPA) — or in shortened form cardiac arrest or circulatory arrest.

¶ 9. The American Heart Association recognizes pulmonary insufficiency/pulmonary arrest as both a cause of and type of cardiac arrest.

¶ 12. … my opinion with respect to Ms. Carswell’s documented cardiac arrest resulting from insufficientperfusion. … Ms. Carswell underwent cardiac arrest due to inadequate perfusion….

¶ 13. … Cardiopulmonary arrest (CPA), which can also be termed cardiac arrest or circulatory arrest, is the cessation of effective ventilation and circulation. It is also known as cardiac arrest or circulatory arrest. The American Heart Association recognizes this pulmonary insufficiency (which can also be described as pulmonary arrest) as both a cause of and a recognized form of cardiac arrest.

Dr. Guzzi’s affidavit does not attach, or even cite, any medical literature. He offers nothing to support his redefinition apart from his own say-so. More disturbingly, Dr. Guzzi repeatedly invokes the American Heart Association and says it supports his redefinition of “cardiac arrest.” As shown above, that is not true.

Dr. Guzzi’s definition of “cardiac arrest” is false. Dr. Guzzi’s opinion is not merely speculative, garbage science. It is outright false. Dr. Guzzi concocts a counterfeit definition and tries to pass it off on the Court. In short, Dr. Guzzi uses his credentials and expertise in an effort to mislead the Court.

Dr. Guzzi expands the fraud with falsehoods about CPR for cardiac arrest.

Elaborating on his redefinition of “cardiac arrest,” Dr. Guzzi writes: “Not all cardiac arrests will properly be treated by CPR or defibrillation or result in a Code Blue characterization. CPR, defibrillation, and Code Blue characterization are not appropriate responses to a lack of perfusion….” (Guzzi Affidavit, ¶ 15.)

Dr. Guzzi’s statement is false, and mind-boggling. Lack of perfusion means the cessation of blood pumping through the body and supplying the organs and tissues of the body.[6] That’s the very problem cardiac arrest causes. That’s how cardiac arrest kills people. The universal response to cardiac arrest is cardiopulmonary resuscitation (CPR) — to resuscitate the heart.[7] Initial CPR is followed by defibrillation if the heart has a “shockable” electric rhythm, to restore a proper rhythm, or by epinephrine or similar drugs if the heart has no electrical activity. The American Heart Association’s guidelines are clear about this:[8]

The additional expert affidavits submitted with this brief state in substance:

· “Perfusion” means the flow or spread of something. In this context, “perfusion” typically refers to the flow of blood through the blood vessels and then the organs and tissues of the body.

· Cardiac arrest is an extreme, potentially fatal emergency precisely because the pumping of blood stops — circulation and perfusion of blood stops.

· The universally understood treatment of cardiac arrest is CPR and, if available, either or both of defibrillation and epinephrine.

· In the hospital setting, the purpose of calling a Code Blue is to bring skilled medical care to the patient’s bedside as fast as possible.

· Dr. Guzzi’s statement that “CPR, defibrillation, and Code Blue characterization are not appropriate responses to a lack of perfusion” — at least as applied to a discussion of cardiac arrest — is unfounded, unreliable, misleading, and false.

Dr. Guzzi again uses his credentials in an effort to deceive the Court.

Emory quotes misleadingly from the lone article they cite.

In their brief, Emory cites one piece of literature — a continuing-education article titled “Cardiopulmonary Arrest in Adults.” (Response, 7.) We file the article into the record as Exhibit 17 to the Holloway Affidavit Submitting Medical Literature. From the article, Emory quotes this passage:

Cardiopulmonary arrest (CPA) is the cessation of effective ventilation and circulation. It is also known as cardiac arrest or circulatory arrest.

Emory ignores the word “cessation” and relies on the word “effective” to support Dr. Guzzi’s testimony that respiratory or cardiac insufficiency constitutes cardiac arrest. Emory does not quote the following passages from the same article — which make clear that a person in cardiac arrest is pulseless:

. . .

The sole piece of medical literature Emory cites does not support Emory/Guzzi’s position — but refutes it.[9]

Emory quotes misleadingly from a definition of “cardiac arrest” cited in Plaintiff’s opening brief.

Emory also provides a misleading discussion of a dictionary definition quoted in Plaintiff’s opening brief. In Emory’s Response, in a footnote at page 7, Emory says the definition from the Oxford Concise Colour Medical Dictionary supports their redefinition, because the dictionary says cardiac arrest is “the cessation of effective pumping action of the heart.” The definition does not support Emory.

First, the definition explicitly states that in cardiac arrest, “There is … absence of the pulse.”

Emory did not disclose this to the Court.

Second, the dictionary’s reference to “cessation of effective pumping action” has to do with the multiple ways in which the four chambers of the heart can stop pumping blood to the body. In some forms of cardiac arrest, the heart does not shut down entirely, but the action of the heart’s four chambers becomes uncoordinated — so that the heart as a whole no longer pumps blood to the rest of the body. In extreme “ventricular fibrillation,” for example, “disorganized heart signals cause the lower heart chambers (ventricles) to twitch (quiver) uselessly. As a result, the heart doesn’t pump blood to the rest of the body.”[10]

The Oxford dictionary’s reference to “cessation of effective pumping action” does not mean there is a form of cardiac arrest in which the heart continues to pump blood out to the rest of the body. That is obvious, of course, from the dictionary’s statement that in cardiac arrest “there is … absence of the pulse” — a statement Emory did not disclose to the Court.

There is no genuine dispute about the meaning of “cardiac arrest.” The medical community defines it as the complete loss of cardiac function, so that the person loses a pulse, blood pressure, and other signs of blood circulation. There is no battle of experts about the meaning of “cardiac arrest.” There is only the true definition and Emory/Guzzi’s counterfeit definition.

1.1.2. Emory concedes that Jeni Carswell never lost a heartrate or blood pressure — which means she did not suffer cardiac arrest.

Emory does not dispute — and thus concedes — the facts that prove definitively that Jeni Carswell did not suffer cardiac arrest, as that term is defined.

Pulse & Blood Pressure: Emory does not dispute the evidence, presented in Plaintiff’s opening brief and affidavit, that Jeni never lost a pulse or blood pressure. (See Response.)

Treating Physicians: Emory silently admits that none of the physicians who treated Jeni during the Code events, or afterward in the ICU, identified Jeni as having suffered cardiac arrest. (See Response.)

CPR: Emory quietly admits that even during the “Code Blue,” Jeni’s treating physicians did not use CPR, defibrillation, or epinephrine. (See Response.)

1.1.3. Dr. Guzzi’s affidavit does not support his cardiac-arrest testimony.

As we’ve mentioned, Dr. Guzzi’s affidavit cites zero support for his redefinition of “cardiac arrest.” Furthermore, the bulk of his affidavit deflects from the issue of cardiac arrest. And his affidavit shows he can’t keep his story straight.

Emory/Guzzi deflects from the issue by a long discussion of Jeni’s hypoxic brain injury — which does not bear on cardiac arrest.

Dr. Guzzi’s affidavit attempts misdirection, with a long discussion of Jeni Carswell inadequate oxygen, which caused her brain injury. Indeed, that is the very basis of Plaintiff’s case. But it does not mean Jeni suffered cardiac arrest. The question is what caused Jeni’s brain to be under-supplied with oxygen. Dr. Guzzi does not, because he cannot, offer any evidence that it was caused by cardiac arrest.

Inadequate oxygen to body tissue is called “hypoxia.” An injury caused by hypoxia is a “hypoxic” injury. Blood carries oxygen to the body tissues. Hypoxia can arise from either of two general causes: inadequate amount of bloodsupplied to the tissues (“ischemia”), or adequate amount, but inadequate oxygen content of the blood (“hypoxemia”). Each of these causes (ischemia or hypoxemia) can arise from a variety of conditions, and can exist in varying degrees. Thus, the Cleveland Clinic’s partial list of conditions that cause hypoxia:[11]

Jeni’s hypoxia does not mean she suffered cardiac arrest. Dr. Guzzi’s discussion of Jeni’s hypoxia is an exercise in misdirection.

Dr. Guzzi’s changing stories further betray his untruthfulness.

Dr. Guzzi can’t keep his story straight. We mention only three issues here:

1. Timing of the fictional cardiac arrest and the real brain injury. At trial, Dr. Guzzi testified that Jeni suffered a cardiac arrest around the time of her Code Blue event — around 6:20 to 6:40 AM. Here’s the basic timeline of events:

In his deposition less than two weeks before his trial testimony, however, Dr. Guzzi testified that the fictional cardiac arrest and the real brain injury probably occurred much earlier — before the Code Blue, and before even the prior “Code 3” (also called a “Code MET”).

Guzzi Deposition, page 168, line 7

Q. How do you interpret the reference to agonal breathing here?

A. I have no idea. Most people don’t even understand what agonal breathing is. But I suspect the patient was in cardiac arrest and she may been trying to breathe, but -- and, again, I don’t -- I have no idea Dr. Day’s experience, whatever. I’ve seen way too many people write agonal breathing and I don’t even – but actually, she’s actually saying, found in the bed with agonal breathing. She’s not even saying she saw the agonal breathing. She’s saying she’s found in the bed with agonal breathing. Somebody must have told her that.

… She [Jeni] already had probably an anoxic injury, so she could have been seizing.

On this central issue of the timing of a supposed cardiac arrest, Dr. Guzzi changes his story from one week to the next.

2. Cardiopulmonary Arrest vs. Cardiorespiratory Arrest. In his affidavit, Dr. Guzzi insists Jeni suffered a “cardiopulmonary arrest.” (Guzzi Affidavit, ¶¶ 8-9. See also Response, 7.) At trial, however, Dr. Guzzi rejected a “cardiopulmonary arrest” — saying Jeni had a “cardiorespiratory arrest” and that the two are “very different”:

June 15 Trial Testimony, Page 88

Q. … Now line 12, you say, she had two very uneventful nights, essentially, in the hospital. Had a cardiopulmonary arrest early in the morning at 6:00 A. M. on the 9th.

A. Cardiorespiratory, you are confusing your terms.

Q. Says had a cardiorespiratory?

A. You said cardiopulmonary; they’re very different.

From trial to affidavit, Dr. Guzzi takes contrary positions on basic terminology. (In truth, “cardiopulmonary” and “cardiorespiratory” are near-synonyms.[12])

3. Agonal Breathing. Dr. Guzzi’s affidavit emphasizes the references to “agonal breathing” or “agonal respirations” in Jeni Carswell’s medical records. The affidavit mentions it eight times, saying it is a sign that Jeni was in cardiac arrest. (Affidavit, ¶¶ 8, 16, 17, 20, 22, 23, 33.) But in his deposition Dr. Guzzi said the references to agonal breathing in Jeni’s medical records are meaningless:

Guzzi Deposition, Page 168

Q. How do you interpret the reference to agonal breathing here?

A. I have no idea. Most people don’t even understand what agonal breathing is. But I suspect the patient was in cardiac arrest and she may been trying to breathe, but -- and, again, I don’t -- I have no idea Dr. Day’s experience, whatever. I’ve seen way too many people write agonal breathing and I don’t even -- … But what I see is a patient who is not breathing.

Guzzi Deposition, Page 169

Just -- and, again, just for clear reasons, agonal breathing is not a description any of us care about or use.

Guzzi Deposition, Page 169

Agonal breathing is -- I don’t even know what it means. I run 10,000 codes, I have no idea what that means. So it just -- I don’t understand that.

Guzzi Deposition, Page 170

It’s not -- it’s not consistent with -- oh, I don’t even know what agonal breathing means, but it’s not consistent with the rest of the discussion.

Guzzi Deposition, pg. 202

Well, I mean, I would argue -- I would argue the same thing about your statement about agonal respirations. It’s a -- it’s a useless statement, but yet the nurse said it, it means nothing.

When addressing the Court in defense of his cardiac-arrest testimony, Dr. Guzzi not only knows what “agonal” breathing means in Jeni Carswell’s medical records, but he finds great importance in it. In his deposition, however, he has no idea what it means in those records.

Dr. Guzzi says whatever he thinks serves his interests in the moment. His testimony has the shape of water.

———

Emory/Guzzi’s cardiac-arrest testimony is false — and shown to be so by the evidence in the record. Even the lone article cited by Emory refutes their redefinition. The sole scrap of evidence supporting them is Dr. Guzzi’s own say-so, which does not survive the merest glance from Daubert. The evidence establishes that Dr. Guzzi’s cardiac-arrest testimony was false. But did he know it was false?

1.2. Dr. Guzzi knew his cardiac-arrest testimony was false when he gave it.

As with any state of mind, short of a confession there can only be circumstantial evidence that Dr. Guzzi knew his testimony was false when he gave it. Plaintiff’s opening brief cited ample evidence of intent. We present more now.

The evidence that Dr. Guzzi knew his testimony was false when he gave it is overwhelming, undisputed, and conclusive:

· Dr. Guzzi’s deposition testimony shows both (a) that he knows a patient with a heartrate and blood pressure is not in cardiac arrest, and (b) that he knows Jeni Carswell maintained a heart rate and blood pressure and thus did not suffer cardiac arrest.

· The medical literature shows that the medical community’s definition of cardiac arrest is universal and uncontroversial — so that a physician of Dr. Guzzi’s background must know it.

· Neither Dr. Guzzi nor Emory could cite a single piece of medical literature that supports their redefinition.

· Jeni Carswell’s medical records show conclusively and unambiguously that she did not lose a heartrate or pulse.

· Dr. Guzzi does not say his cardiac-arrest testimony was a mistake or slip of the tongue. He does not even maintain agnostic silence. Instead, he digs in.

We’ve already discussed most of these points. Here we discuss only two:

Confirming Affidavits

The expert affidavits submitted with this brief include the following conclusions:

· Even physicians and nurses in training know the definition and could not be licensed without knowing it.

· Given Dr. Guzzi’s apparent education and experience, it is impossible that he is unaware of the medical community’s definition of “cardiac arrest.”

· Given his background, it is impossible that he is unaware he is misrepresenting the meaning of “cardiac arrest” and substituting a false definition for the medical community’s definition.

Dr. Guzzi’s Deposition Testimony

Emory/Guzzi say Dr. Guzzi’s deposition testimony does not contradict his trial testimony, because the questions were limited to specific time frames. That explanation won’t work. At the beginning of his deposition, we asked Dr. Guzzi what opinions he was offering on Emory’s behalf. Dr. Guzzi mentioned a “cardiorespiratory arrest” in the morning at 6:00 AM — not 6:20 to 6:40. (See Guzzi Deposition, 25-26.) That and similar references to “cardiac” or “cardiorespiratory” arrest took us by surprise, so why we confirmed — four times — in his deposition that Jeni never suffered cardiac arrest. (See Opening Brief, 14-17.) In any event, Dr. Guzzi’s own recitation of opinions omitted any cardiac arrest in the 6:20 to 6:40 AM time frame. Then, at the end of his deposition, Dr. Guzzi said he had given his opinions fully, and had no additional or residual opinions to add. (Guzzi Deposition, 219-20.) In short, Dr. Guzzi’s deposition testimony shows that he sometimes referenced “cardiorespiratory arrest” when he meant only “respiratory arrest,” and that he confirmed Jeni never suffered cardiac arrest.

Additionally, two other passages are relevant. In his deposition, Dr. Guzzi specifically admitted that the vital signs on the Code 3 record (which preceded the Code Blue) ruled out a cardiac arrest:

Guzzi Deposition, Page 167, line 8

Q. So what does the heart rate and blood pressure information on the code [3] sheet tell us?

A. That we have a patient who has active blood pressure that is not in cardiac arrest yet, is in respiratory arrest with a saturation of 82%.

Page 206, line 5

Her blood pressure and heart rate were still present, so she had not gone on to cardiac arrest, so she wasn’t at the end stages of her process. She was still somewhere in the early stage.

Dr. Guzzi here was talking about the “Code 3” or “Code MET” event — not the subsequent “Code Blue” event. At trial, Dr. Guzzi focused on the Code Blue. But Jeni’s heart rate and blood pressure were stronger during the Code Blue than they were in the “Code 3.” (See Opening Brief, 10 and Exhibit B.) So if Jeni’s heart rate and blood pressure ruled out cardiac arrest during the Code 3 (which they did), then they also ruled out cardiac arrest during the Code Blue. Dr. Guzzi’s own reasoning before he gave the perjured testimony shows Jeni was never in cardiac arrest.

Dr. Guzzi knew his testimony was false, when he testified at trial that Jeni Carswell suffered cardiac arrest.

2. Emory suborned Dr. Guzzi’s perjury.

Emory effectively concedes that if Dr. Guzzi gave testimony he knew was false, then they suborned it. Emory offers zero evidence on the issue.

2.1. Emory’s lawyers (and agents) knew Dr. Guzzi’s cardiac-arrest testimony was false.

In Plaintiff’s opening brief, we quoted the statements of Emory’s lawyer at the deposition of Dr. Horton McCurdy — acknowledging that Jeni Carswell never suffered a cardiac arrest. (See Opening Brief, 17-19.) In their Response, Emory has nothing to say about those statements. (See Response, 13.)

Additionally, in his opening statement at trial, Emory’s lawyer again acknowledged both that cardiac arrest involves losing a blood pressure, and that Jeni never suffered cardiac arrest:

Defense Opening Statement

It takes five to seven minutes to get the kind of toxic injury that she got. It’s not because she wasn’t getting BiPAP; it’s because her lungs weren’t expelling the CO2. And that was going on for about five to seven minutes, probably not much longer than that. Because if it had gone on much longer than that, she wouldn’t have had a blood pressure. She would have gone from respiratory arrest to cardiac arrest.

SHE NEVER HIT CARDIAC ARREST which is why she’s still alive. So she was found, the evidence would be, within a few minutes of her having this respiratory arrest.

The evidence is undisputed that Emory was aware, through their lawyer/agent, that Dr. Guzzi’s cardiac-arrest testimony was untrue.

2.2. Emory’s lawyers (and agents) intentionally elicited Dr. Guzzi’s cardiac-arrest testimony.

In Dr. Guzzi’s direct examination at trial, the same Emory lawyer actively elicited testimony about cardiac arrest. Emory was not surprised by Dr. Guzzi’s testimony. Emory was not ambushed by it. Emory did not struggle to control a rogue witness. To the contrary, Emory elicited the testimony — both on day one of Dr. Guzzi’s testimony, and even on day two of his testimony, after having a chance to reconsider overnight.

Day 1 of Dr. Guzzi’s trial testimony

Page 51

Q. And is she in cardiac arrest at this point?

A. She is not.

. . .

Q. Okay. And so is she in cardiac arrest at this point?

A. She is not.

Page 55

Q. What does that mean? Why is she going to the ICU? What’s a code blue versus a code med?

A. I’m assuming she’s going to the ICU because of altered mental status or respiratory distress, pulmonary insufficiency. I’m assuming when she gets to the ICU that she now has a cardiac arrest where either her heart stops, they don’t have a blood pressure or she is not responsive.

Page 65

Q. And can a BiPAP prevent a cardiac arrest or a respiratory arrest?

A. No.

Q. Can a BiPAP prevent a drug overdose?

A. No.

Q. Tell me how the interplay then of the drug overdose with the respiratory failure distress leading to respiratory arrest ultimately lead to cardiac arrest. How does that interplay in your view?

At the end of day 1 of Dr. Guzzi’s testimony, the courthouse had a power outage, and the day ended abruptly. Dr. Guzzi went home to Florida, and the next day Emory offered him for re-direct examination by Zoom. So Emory had the night to think over Dr. Guzzi’s testimony. If they did not intend to sponsor Dr. Guzzi’s perjury, they had plenty of time to decide how to remedy it, or at least avoid repeating it. Instead, they brought Dr. Guzzi back to repeat the cardiac-arrest perjury. Then Emory relied on the cardiac-arrest falsehood in closing argument. (See Opening Brief, 22-23.) Emory suborned Dr. Guzzi’s perjury.

3. The perjury went directly to the issue of causation.

Emory says the cardiac-arrest testimony was not material. (Response, 11.) A fact or issue is “material” if it is “important; relating to the substance rather than form; going to the merits and essence.” Ballantine’s Law Dictionary. It is immaterial, on the other hand, if it is “not pertinent; of no consequence.” Id.

Dr. Guzzi’s cardiac-arrest perjury was more than material: It was central to Emory’s causation defense, and potentially fatal to Plaintiff’s causation theory. Plaintiff’s theory was that Jeni suffered respiratory distress for a prolonged period before the Code events. During this prolonged distress, Jeni’s brain had a shortage of oxygen to the point that brain tissue died.

In contrast, Emory argued that the injury did not occur until after the Code 3/Code MET was called. Emory’s theory was that during the Code events — with physicians and nurses in the room tending to her — Jeni suffered a sudden loss of all respiratory and cardiac function. This respiratory and cardiac arrest lasted several minutes, during which Jeni suffered a brain injury.

In Emory’s story, the arrest happened despite active care and attention from multiple medical providers at Jeni’s bedside. Emory’s theory, if true, would sever any connection between Jeni’s brain injury and any medical negligence preceding the Code MET. Thus, from Emory’s closing argument:

The fictional cardiac-arrest was central to Emory’s theory of causation — a sudden arrest during the Code events, when Jeni was being actively cared for, as opposed to a long period of inadequate oxygen before the Code events, when Jeni was being neglected and suffering respiratory depression. If adopted by the jury, Emory’s causation defense extinguished Plaintiff’s causation theory and exonerated Emory. The perjured testimony thus went to the heart of the case.

WHAT TO DO ABOUT EMORY’S PERJURY

As we said in the first paragraph of Plaintiff’s opening brief, this motion is “unsettling and unpleasant,” “disquieting.” Of course we agree with Emory that “Perjury is a crime, and specious allegations of perjury have no place in these proceedings” and “mere allegations [are] insufficient” and “serious charges mandate serious proof.” Indeed, perjury is a crime, and the evidence of it here is conclusive.

What to do about Emory’s perjury? What authority does the Court have to order remedies for perjury in trial? What aggravating or mitigating factors exist? On these questions, Emory maintains a nearly complete silence.

4. The Court has authority to strike Emory’s answer, to find the individuals in contempt of court, to eject pro hac counsel, and to refer the matter to other authorities.

Emory does not discuss whether the Court has any authority. Emory simply takes no position: They do not concede the Court has authority, but nor do they dispute the Court’s authority. Emory’s sole contribution is to point out that the cases cited in Plaintiff’s opening brief do not address intentionally false expert testimony in a civil trial. But the principles articulated in those cases apply here, all the same. Emory does not discuss the principles — not even to deny they apply.

Our Supreme Court has clearly held both (a) that trial courts have broad inherent authority to order remedies for misconduct in judicial proceedings, and (b) that this inherent authority includes the power to strike a party’s pleadings. See Pennington v. Pennington, 291 Ga. 165 (2012). Pennington was a divorce case, and the offense was not perjury but a failure to appear at a hearing.

The question is whether this inherent power to strike pleadings vanishes when, instead of failing to appear at a hearing, a party knowingly sponsors false testimony — which may have contributed to a hung jury that wasted judicial resources — implicating both the authority of the Court to control its docket and the authority to protect the integrity of its proceedings.

We can think of no reason why the Court’s power would be diminished, let alone vanish, in this circumstance. On the contrary, the Pennington principle should apply with even greater force where the misconduct involves perjury, as opposed to truancy. We think it absurd to suppose that a court has fewer inherent powers to remedy perjury than to remedy a failure to appear for a hearing. Emory does not say they disagree. Nor does Emory give any reasons, or cite any authorities, to support a disagreement. Emory’s silence on this crucial point carries meaning: Emory knows the gravity of this motion. If Emory knew of any basis to say the Court has diminished powers when it comes to perjury, Emory would have said so.

As to the other remedies Plaintiff seeks — apart from striking Emory’s Answer — the Court’s authority is too obvious to discuss further.

5. The standard for striking pleadings is absence of mistake, as determined by the Court on a preponderance of the evidence.

Emory’s Response focuses on the criminal offense of perjury. Obviously, this matter is not governed by a criminal standard. A criminal conviction requires a jury trial and proof beyond a reasonable doubt. A remedy for misconduct in a civil trial requires a finding by the Court (not a jury) on a preponderance of the evidence (not beyond reasonable doubt), and a lack of mistake (not actual willfulness). As to preponderance, see In re Estate of Banks, 339 Ga. App. 144 (2016) (“The appropriate standard of proof in a civil contempt case is preponderance of the evidence.”) As to lack of mistake, see Dentistry for Children of Ga. v. Foster, 362 Ga. App. 217 (2022).

To strike Emory’s Answer, the Court need only find by a preponderance of the evidence that Emory intentionally sponsored Dr. Guzzi’s testimony despite knowing the testimony was false. That standard is met here. Indeed, we believe there is no competent evidence in the record that would support a contrary finding.

6. Emory/Guzzi merit the strongest remedies available.

Emory does not discuss aggravating and mitigating factors. Those factors are:

Perjury at trial. The offense here is not withholding a minor document during discovery. The offense is perjury at trial.

Central issue. The false testimony was not incidental or marginal. It went to a central issue — Emory’s causation defense.

Premeditation. The perjury was not a mistake. If it were, the issue here would be minor and would not merit this motion. We all make mistakes. We all need a little grace now and then, and we all extend grace to one another for mere mistakes. But Emory’s perjury was not an ill-considered, off-the-cuff remark. Rather, Emory presented it on Day One of Dr. Guzzi’s testimony and then had the evening to reconsider. They came back on Day Two, presented it again, and then made it central to their causation defense in closing argument.

Human stakes. The stakes were high. The trial was not about trespass of a fence built over a property line. The trial was about a brain-damaged woman with 30 or 40 years of life remaining, and her ability to live out her life with decent care.

Waste of judicial resources. Emory’s perjury may have — and we believe likely did — contribute to the hung jury that wasted judicial resources.

Continuing dishonesty. After being called out for suborning perjury, Emory dug in and defended one lie with another. Emory’s continuing dishonesty is especially important because of the resources available to guide them through their self-created predicament. Owning up to misconduct is always hard. It’s hard for a lying schoolboy, it’s hard for a hardened grifter, and it’s hard for everyone else, too. In contrast to most wrongdoers caught in a lie, however, Emory has had every possible advantage in framing their response — not only their enormous resources and deep bench of lawyers and risk managers, but three months to deliberate, and a new lawyer who is a former US Attorney. With all those advantages, at the end of all their deliberations, Emory kept lying.

Open refusal to acknowledge the gravity of perjury by an expert witness. In Plaintiff’s opening brief, we cited two cases for the elementary point that perjury is a grave threat to the judicial system. In their Response, Emory takes issue with those cases, because “The two cases cited to underscore the seriousness of perjury and the harm it inflicts on the judicial system … did not involve expert testimony.” (Response, 12.)

If Emory’s comment means anything, it means that perjury by an expert witness is not necessarily serious. If Emory and Jones Day think that — and their conduct suggests they do — they are likely not alone. Emory’s ambivalence amplifies the need to vindicate the integrity of the judicial system.

Pointing the finger at Plaintiff’s counsel. Emory twice suggests it is Plaintiff’s counsel who are the real wrongdoers — for raising the issue of Emory’s suborning perjury — and that we should be subject to professional discipline. (Response, 13, n. 6; 14, n. 7.) The impulse to turn the tables on an accuser begins in childhood and stays with us. Sometimes, that’s justified. However, accusing the accuser can become not only baseless, but menacing. In countries like Russia or China, to bring an accusation against someone powerful is to become the real target, in a process abetted by sham courts. That insulates the powerful: It’s too dangerous even to complain about abuses.

On the evidence here, there is no hint of a frivolous accusation. Emory does not point the finger at Plaintiff’s counsel out of true indignation. They do it as a tactic in furtherance of their continuing dishonesty, laced with a threat from a former US Attorney at Jones Day.

General disrespect for the judicial process. In responding to an accusation of perjury, Emory might have been expected to make a special effort to speak with scrupulous accuracy. But even apart from Emory’s core deception about “cardiac arrest,” Emory’s Response repeatedly makes assertions that are so transparently misleading that they could have been meant as open insults to the intelligence of the reader. Just three examples:

1. Emory says “Mere allegations of perjury, as presented here, are woefully insufficient.” (Response, 6.) But anyone who reads Plaintiff’s opening brief can see it presents (a) the definition of cardiac arrest, (b) the objective facts showing Jeni Carswell never suffered a cardiac arrest, (c) Dr. Guzzi’s trial testimony, and (d) deposition transcripts showing that both Dr. Guzzi and Emory’s counsel knew Jeni never suffered cardiac arrest.

2. Emory says Dr. John Schweiger’s June 21, 2022, affidavit “does not reflect any analysis of the actual data” in Jeni Carswell’s medical records. (Response, 5.) As anyone who looks at the affidavit can see, it walks through the data on the Code 3 and Code Blue records, as well as the succeeding physician notes.

3. Emory says, “The 34-page Motion for Sanctions does not attempt to point to any evidence of Dr. Guzzi’s intention to make a false statement material to the issues in the case nor any circumstantial evidence that would support such an inference.” (Response, 10.) Obviously, though, in addition to the evidence we just mentioned, Plaintiff also presented evidence that Dr. Guzzi delivered his cardiac-arrest lie more than once, and dug into it when challenged.

Even in responding to an accusation of perjury, Emory betrays no sense that care need be taken to speak honestly to the Court.

All relevant factors aggravate the offense. Nothing mitigates it. Emory merits the strongest remedies within the authority of the Court.

CONCLUSION

When a man takes an oath, he’s holding his own self in his own hands. Like water. And if he opens his fingers then — he needn’t hope to find himself again.

— A Man for All Seasons

I swear that I will truly and honestly, justly and uprightly conduct myself as a member of this learned profession.

— Georgia Attorneys Oath

Emory has created a stress test for the integrity of Georgia courts. Is it OK for powerful litigants to sponsor perjury, or is it not? Is the oath only for the weak? Is it only for fools?

George Orwell understood the psychology of the strong dominating the weak. He learned this from growing up in boarding school — where bigger kids made smaller kids engage in rituals of degradation, like forcing them to lick boots, and worse. In 1984, the character Winston comes up against the secret police, who compel him not only to say that 2+2=5, but to believe it. Mercifully, we do not live in an Orwellian state, and though they’re big, Emory and Jones Day are hardly the secret police. But that would make it more degrading to cede to their insistence that “cardiac arrest” does not mean what it means. One might understandably kneel to a torturer — but to a mere hospital company? To a law firm? Yet Emory insists we accept that “This was not a cardiac arrest based on the heart actually stopping….” (Response, 7.) That is QAnon-level absurdity. Yet Emory obtained even a former US Attorney, to sign his name to the absurdity. And we, and Jeni Carswell, and even the Court are expected to bow to Emory’s fraud. No.

The stakes on this motion are high, but it would have been so easy — so absolutely free of difficulty — for Emory to have avoided the problem. Emory had only to refrain from a lie they were under no pressure to tell. They had other defenses. Honesty would have required no special courage, just common decency.

After trial, in responding to this motion, it would have required some integrity for Emory and Dr. Guzzi to own up to the perjury. Even then, however, it would have required no more than we demand of children. We teach children to own up to their wrongs. Emory/Guzzi are better equipped than a child. Owning up to their false testimony would not have required the moral heroism of a Martin Luther King, Jr. or Dietrich Bonhoeffer.

Equally concerning here, though, Emory’s corrupting influence extended to new lawyers with no personal exposure, no reason to sign onto Emory’s deception except the banal incentive of getting the business. Daily, in law offices throughout America, lawyers give clients the bad news that they have no case. As to specific issues, many of us have told clients, “No. I’m not making that argument.” Many of us have withdrawn pleadings or withdrawn from a case, when we learned the client had misrepresented facts, or when we otherwise learned a case or position lacked merit. But there’s something different about Emory. In The Crucible, John Proctor could not sign his name to a false confession, even to save his life — “Because it is my name! Because I cannot have another in my life!” How is it that here, Emory got a former US Attorney to sign his name to their deception?

Emory’s Response repeatedly expresses concern for the professional reputations of Dr. Guzzi and the lawyers — appealing to personal collegiality and the all-too-false feeling that of course respected professionals do not commit serious wrongs. But nowhere does Emory express concern for the offense to the judicial system. Dr. Guzzi at least tacitly acknowledges the gravity of the offense. In his affidavit, Dr. Guzzi cloaks himself in umbrage, expressing “deep, personal offense” and saying, “[A]s a veteran, I have taken an oath to protect and defend the constitution of the United States. In my mind, that includes the entirety of the judicial process and I have far too much respect for the court and the judicial process to lie.” This show of piety is empty, but at least it acknowledges that perjury is a grave offense. Emory could not bring themselves even that far.

Emory thinks it is safe to lie in Court. Emory thinks thereby to doom Jeni Carswell to a life of disability deepened by privation.

This is a hard motion. But either the integrity of the courts means something, or it doesn’t. Either the oath matters, or it doesn’t. Either the courts merit respect, or they don’t. If the latter, then we should abandon the pretense. But if the former, Emory’s sponsorship of perjury must meet fair and proportional consequences — a remedy that shows lying to a court is not safe.

October 24, 2022

Respectfully submitted,

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

bell@BellLawFirm.com

/s/ Jennifer A. Kurle

JENNIFER A. KURLE

Georgia Bar No. 001353

KurleLaw, LLC

One Decatur Town Center

150 E. Ponce de Leon Ave.

Suite 225

Decatur, GA 30030

Telephone: 404-458-4080

Facsimile: 678-550-6365

Attorneys for Plaintiff

State Court of DeKalb County

State of Georgia

SHARON TATUM, as Personal Representative of JENI CARSWELL,

Plaintiff

— versus —

THE EMORY CLINIC, INC. and EMORY HEALTHCARE, INC.,

Defendants

)

CIVIL ACTION

FILE NO. 16 A 60933

Certificate of Service

The undersigned has served the foregoing document on all counsel of record, by filing the document with Odyssey eFile Georgia.

October 24, 2022.

/s/ Lloyd N. Bell

APPENDIX: THE TESTIMONY AT ISSUE

Guzzi testimony, June 15

Page 12

Q. So after going through the records, what was your impression of this case?

A. I was struggling to understand what had happened and how it occurred.

Q. And why is that?

A. Because I saw a young woman who comes into the hospital, with pretty significant abdominal pain, who has two really relatively decent nights. Nothing against pain medicine, very appropriately for somebody with abdominal pain. And then is scheduled for a HIDA scan to rule out an obstruction or anything in the gallbladder; receives relatively no pain medicines of any sort whatsoever, and suffers a respiratory cardiac arrest.

Page 55

… moved to the ICU rooms, and now they call a code on her, a code blue, at 6:26.

Q. What does that mean? Why is she going to the ICU? What’s a code blue versus a code med?

A. I’m assuming she’s going to the ICU because of altered mental status or respiratory distress, pulmonary insufficiency. I’m assuming when she gets to the ICU that she now has a cardiac arrest where either her heart stops, they don’t have a blood pressure or she is not responsive.

Page 89

So, her process started after she overdosed on the oxycodone, I mean, on the xanax. With the xanax in her bloodstream, she had a cardiorespiratory; the respiratory is the key component. And we have blood gases that absolutely prove that, that she was in respiratory arrest; there’s no question she’s in respiratory arrest.

She continues in decline, and oftentimes, we hope the patients will recover, but they made a decision to move her to the Intensive Care Unit where she progressed down to have the cardiac portion of the cardiorespiratory.

Page 100

The poser never asked me anything past the arrest moment.

Q. The what now?

A. Who I was being deposed by never asked me about that; and my opinion was she had a cardio -- she had a respiratory, followed by a cardiac arrest, secondary to accidental drug overdose, right.

Guzzi Testimony, June 16

Page 11

So it didn’t make sense; and then, obviously, we read the depositions and then about the medication and the pills. So that completely change the course, and xanax absolutely can depress respiration, can lead to almost this whole sonorous breathing we see in her cardiac arrest.

Pages 16-17

Q. And when you have respiratory arrest, which you, I believe, think occurred around 6:20?

A. Six twenty to six twenty-six is when they had stopped. They didn’t put in their note where they said she would become unaltered. So somewhere in there she had a respiratory event, where she is both unresponsive and airway protected which usually means you’re not breathing.

Q. And how long between the time you go into respiratory arrest is it before, or – strike that. How long, in this case, was it when she went into respiratory arrest before she went into cardiac arrest?

A. She went into cardiac arrest quickly after that. They had her in, I think it was, 46 minutes; they were threatened with a cardiac arrest where she got intubated. Then they had that time period till it was 6:40 plus.

Page 20

A. At 5:50, no. That’s what I just said. If you’re assuming she did not have one the entire time, and the question was did she have cardiac arrest at 5:50, before the breach, the answer was, no, she is arrhythmic. She suffered cardiac arrest in the ICU.

Page 21

That is correct, but I thought it was in context with the previous question of 5:50; that’s a context question. If I’d been asked if she had cardiac arrest in the hospital, which I was never asked, the answer was yes. Again, it’s context. No one asked me if she had cardiac arrest in that time period. I believe it was carrying through from that 5:50 question.

[1] https://www.heart.org/en/health-topics/heart-failure/what-is-heart-failure.

[2] Jacobs, Ian, et al. “Cardiac arrest and cardiopulmonary resuscitation outcome reports: update and simplification of the Utstein templates for resuscitation registries.” Circulation 110.21 (2004): 3385-3397.

[3] https://www.heart.org/en/health-topics/cardiac-arrest.

[4] https://www.nhlbi.nih.gov/health/cardiac-arrest.

[5] https://medlineplus.gov/ency/article/007640.htm.

[6] E.g., https://www.merriam-webster.com/medical/perfusion.

[7] Recognized exceptions are obvious: e.g., a patient with a Do Not Resuscitate order, or a patient whose heart is intentionally stopped, to perform “on-pump” heart bypass surgery.

[8] 2020 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care (part 3). Available at https://www.ahajournals.org/doi/10.1161/CIR.0000000000000916.

[9] It doesn’t really matter here, but Emory/Guzzi also erroneously conflate respiratory arrest and cardiac arrest. The former is when breathing ceases entirely. The latter is when the heart stops pumping blood to the rest of the body. Respiratory arrest and cardiac arrest frequently but not always go hand in hand: If one occurs and is not reversed, the other will follow within minutes. “Cardiopulmonary arrest” refers to the combination of cardiac and respiratory arrest. Nonetheless, respiratory and cardiac arrest are distinct phenomena which can and sometimes do occur separately, each without the other.

[10] https://www.mayoclinic.org/diseases-conditions/ventricular-fibrillation/symptoms-causes/syc-20364523.

[11] https://my.clevelandclinic.org/health/diseases/23063-hypoxia.

[12] Compare, e.g. https://www.merriam-webster.com/dictionary/cardiorespiratory with https://www.merriam-webster.com/dictionary/cardiopulmonary.

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