The Wall: Chronicle of a Scuba Trial
Chapter 4

Trial, Day 1 (continued)

Pearson calls to the stand his second witness for the plaintiff, a Dr. Bergofsky, who is duly sworn in. Pearson begins:

"Please state your name and current position."

"I am Dr. Rudolph Bergofsky, director of the Hyperbaric Services at Tampa City Hospital."

"That's in Tampa, Florida?"

"Yes."

"Dr. Bergofsky, would you please tell the jury your background, your training, how you got to your current position and what you do?"

"Yes, I graduated from the University of Florida College of Medicine in 1980, then did my residency training in internal medicine for three years. That was at Tulane, in New Orleans. Following that program I joined the Navy and was assigned to the Navy Seals program, where I remained for four years. In the Navy I learned about the special medical needs of the Seals, and studied diving medicine. "

"Doctor, I believe most of us have heard of the Navy Seals, but would you just explain who they are in a little more detail?"

"Yes. Seals stands for Sea, Air, and Land. Specially selected naval recruits are trained to perform clandestine operations anywhere at any time, literally on land, in the sea, in the air. When they graduate they're called Seals. Skills include parachute jumping, scuba diving, underwater demolition work, sky diving, living off the land, hunting and, if necessary, killing. Anyway, diving is a big part of the Seals training."

"Does that include scuba diving?"

"Oh yes, both scuba diving and hard hat diving."

"And as physician you helped take care of diving-related problems?"

"Well, yes, as a general physician for the Seals I had specialized training in scuba and diving medicine."

"And that included hyperbaric chamber treatments?"

"Yes."

"And what is a hyperbaric chamber, if you would so kindly explain it?"

"It's a rigid chamber the size of a small room, that a patient can be placed in, and the air pressures can be increased to above atmospheric levels, two-three or more times normal. The increased air pressures are used to shrink bubbles in the blood that can form during diving and cause pain, what we commonly call the bends."

"And you learned to operate this chamber and treat patients in it"

"Yes, I took an intensive course in hyperbaric and underwater medicine, and we lived on a specially-equipped ship for 6 months at a time. The ship has two hyperbaric chambers, and if a Navy Seal or any other military personnel got into a diving accident, I was the physician in charge. It was valuable experience."

"And how long were you in the Navy?"

"Four years."

"When you got out of the Navy what did you do?"

"I did a fellowship in hyperbaric medicine at UCLA, then came to Tampa in 1989 to run their hyperbaric program. I do that and work in emergency medicine also. The hyperbaric chamber is located next to the ER."

"So you have specialized certification in hyperbaric medicine?"

"Yes, I do."

"And do you scuba dive yourself?"

"Oh, yes. Whenever I get a chance. There's not too much to see on Florida's west coast, but I go to the Keys or the Caribbean quite frequently."

"Are you a member of the Undersea and Hyperbaric Medical Society?"

"Yes, I am."

"What is that?"

"UHMS is an organization of physicians interested in these topics, scuba diving medicine, hyperbaric chamber medicine, and so forth."

"So it's a scientific group?"

"Yes, it is. We have a formal scientific meeting once a year."

"Dr. Bergofsky, have you had a chance to review the case before us today, of Jennie Knowlton vs. Ocean Realm Enterprises?"

"Yes, I actually reviewed it twice, on two separate occasions."

"How so?"

"I was consulted by the Cayman authorities shortly after the accident, and at their expense I was flown to Grand Cayman and met with the coroner."

"Why were you called?"

"Well, I asked the same question. I was told that they wanted an independent physician to look the case over, to see if there should be any other avenues of inquiry, and I was highly recommended by Dr. Sanjit, who runs the Georgetown Hospital hyperbaric chamber on Grand Cayman Island. We had met at various meetings, and he knew I lived in Florida and hoped I would be available. Grand Cayman's only an hour and a half away by air. Anyway, they called and I was happy to oblige."

"And when were you there?"

"For this purpose?"

"Yes."

"I arrived three days after the accident and stayed 2 days, so I was there in mid-July 1996."

"What exactly did they ask you to do?"

"To review their report before it was released, to talk with whomever I wanted, and to determine if they should do anything more than close out the case and declare it an accident."

"And this only took you about two days?"

"Yes, that's all. Everyone was most cooperative. The authorities had really done all their investigation by the time I got there. I talked with a few people, including the boat captain, the divemaster, and Ms. Knowlton's boyfriend, and I went diving at the site myself with one of the Cayman authorities."

"I take it you saw nothing new at the site, at least nothing not already reported?"

"That's right. It's a vertical wall as you know, and we stayed above 100 feet depth. But I saw how she must have disappeared, down that wall, and can see why the body was never recovered. It's really bottomless. You look down and it's just an empty blue."

"And your conclusion from this investigation?"

"I concluded, as had the authorities, that there was no foul play, that this was certainly a believable diving accident, and that Ms. Knowlton had probably succumbed from a medical condition which caused her to become separated from the group and sink. She probably died from either suffocation -- running out of air -- or drowning. We'll never know of course."

"Doctor, the issue of negligence was not addressed by the Cayman authorities, is that correct?"

"Not really. They just wanted to determine if it was a diving accident, which of course can happen, of if there was any evidence of foul play, if there was anything that might have been illegal. In the end there was no blame assigned, if that is what you mean."

"So it was more in the nature of, 'Let's see if this is murder or mayhem" type of inquiry, is that right?"

"OBJECTION. Mr. Pearson is leading the witness."

"Sustained."

"Dr. Bergofsky, to sum up, you agreed with the authorities' conclusions?"

"Yes, in so far as there was no intention to cause any harm, that it was simply a tragic diving accident."

"And please tell us about the second time you reviewed the case."

"Well, after you called me. You apparently had learned of my involvement on Grand Cayman, and called me to review the case again."

"When was that?"

"About a year ago, I believe."

"And were there any additional materials that I provided to you?"

"Yes, the depositions you had obtained at the time, I believe of the divemaster and one or two other witnesses, and an expert's letter from Mr. Giles Morgan. I had already seen the coroner's report and the news articles, of course."

"Doctor, we've heard testimony today that Ms. Knowlton probably had nitrogen narcosis, and that this is why she drifted away? Is that your conclusion also?"

"OBJECTION! Dr. Bergofsky has already said he doesn't know what caused her to drown. Mr. Pearson is again leading the witness!"

"Sustained."

"Dr. Bergofsky, let me change the question. Based on your extensive reviews of this case -- including your on-site visit -- what, in your opinion, was most likely the medical emergency that caused Ms. Knowlton to drift away from the group?"

"Well, going back to my Navy Seal days, I remember we lost two Seals in somewhat similar circumstances. However, Seals sometimes get unavoidably separated from their assigned buddy, because of extenuating circumstances, and in both these cases the divers were alone when they disappeared."

"You are speaking of two separate divers, two separate incidents?"

"Yes. That's correct."

"And they had what condition?"

"Well, the Navy recovered both bodies, of course. In the first case the diver was found in 300 feet of water, and the other diver was found in 245 feet of water. Now in both cases the divers had been instructed to go no deeper than 100 feet, which means that they somehow lost control at that depth and sank. The Navy did autopsies on both divers and found nothing wrong. Heart, every other organ was OK, except the lungs, which were water logged. So we assumed it was probably nitrogen narcosis. And I think that's what happened to Ms. Knowlton. It can happen to anyone, a recreational diver or a trained Navy Seal."

"Dr. Bergofsky, how does your experience in the Navy, and your training as a diving medicine specialist, lead you to conclude that Jennie Knowlton most likely had nitrogen narcosis?"

"Well, we went back and reviewed the Navy experience in this situation, and sure enough there was plenty of studies of nitrogen narcosis effects at around 100 feet. Then we had the autopsy data of these two particular divers which revealed no reason for their drowning. Unfortunately, there is no test for nitrogen narcosis, certainly nothing that would ever show up on an autopsy."

"Is that your only experience with nitrogen narcosis?"

"No. We treat divers in our hyperbaric facility, and so I get a chance to interview lots of divers. Nitrogen narcosis is often reported by the divers themselves -- they remember feeling slightly confused at depth -- or it is sometimes reported by their buddy. I myself have felt the effects at about 90 feet, but fortunately I am able to combat it and come up; the feelings go away at about 60 feet, at least for me."

"What are those feelings?"

"Like you're drunk, or a little inebriated. As I said, it affects different people differently. Some people can have two martinis and drive home from the bar, whereas others might hit a tree and get themselves killed. Same thing with nitrogen narcosis. Some divers can navigate a safe ascent, others have to be brought back up or coaxed into ascending by their buddy."

"So as an ex-Navy Seal doctor, and as a diving medicine specialist, you have experience in nitrogen narcosis?"

"Yes, probably as much as anyone."

"Dr. Bergofsky, based on your experience in the Navy and afterwards, and your review of this case both on Grand Cayman Island and afterwards, do you have an opinion as to a reasonable degree of certainty what caused the death of Jennie Knowlton in July 1996?"

"Yes, I do."

"And what is that opinion?"

"That she succumbed to nitrogen narcosis, a fully reversible condition if the victim can be brought to the surface."

"Doctor, based on all of your experience, and on your review of this case both on Grand Cayman Island and afterwards, do you have an opinion of whether or not Ms. Knowlton would be alive today if the divemaster had kept her eye on her and acted appropriately?"

"OBJECTION! Mr. Pearson is prejudicing the witness and begging the question."

"Sustained. Mr. Pearson, please re-phrase your question."

"Thank you, your honor. I will. Dr. Bergofsky, based on all of your experience, and on your double review of this case, do you have an opinion of whether or not Ms. Knowlton could have been saved at any point of her last dive?"

"Yes, I do."

"And what is that opinion?"

"That she certainly could have been saved if someone had caught her descent and simply grabbed hold of her and kept her from falling. Then, bringing her up 20-30 feet even, it is my opinion that she would have snapped out of her nitrogen narcosis and been able to safely navigate her way to the surface."

"Dr. Bergofsky, based on all of your experience, and on your extensive review of this case, do you have an opinion of what Ms. Knowlton's condition would be today if such had happened, if someone had kept her from falling and nudged her up to the surface?"

"Yes, I do."

"And what is that opinion?"

"She would be normal. Completely normal."

"Thank you. No further questions."

This testimony is effective. Even though Pearson is not able to establish negligence with his expert, he has established credibility as to the likely chain of events. Dr. Bergofsky leaves the stand and there is a 10 minute break.

* * *

"Dr. Bergofsky, I'm Lane Kirkland. I represent Ocean Realm International, and I'd like to ask a few questions about your testimony today."

"OK."

"How long were you in the Seal Program?"

"Four years."

"And where did you go, where did you travel in that program?"

"Oh, all over. Asia, and the U.S. West Coast mainly."

"The Seals trained where?"

"Their base is in San Diego."

"Is that where they did their scuba diving?"

"That's done all over the world."

"In Grand Cayman, too?"

"No." He chuckles. "That would be nice, but we didn't go there."

"Well, where were the two deaths you referred to?"

"One was in the Persian Gulf and the other was off the coast of Alaska."

"I see. Doesn't sound like your basic Caribbean holiday, does it?"

"No." Another chuckle.

"Doctor, are you familiar with the bends?"

"Yes, of course."

"Is that the same thing as nitrogen narcosis?"

"No. It's completely different."

"How so? Aren't both from too much nitrogen in the blood?"

"Well, the bends is another name for decompression sickness. When you dive the nitrogen accumulates in your body and if you ascend too fast, nitrogen bubbles form and they can block the circulation or the nervous system. It can be fatal. So it's a blockage from bubbles, and it only occurs when you start to ascend. Nitrogen narcosis is not a blockage, only an effect of too much nitrogen pressure on nerve conduction, and it gets better when you ascend. I know this must sound confusing, but although they are both related to much nitrogen in the body, they are really very different."

"Pardon me doctor, I am confused [of course he's not at all] and if I'm confused the jury may be as well. In one case too much nitrogen forms bubbles, and in the other too much nitrogen slows down nerve conduction?"

"Yes. The bends can be thought of as nitrogen bubbles, and they only pose a problem when you ascend, if the nitrogen bubbles out of your blood too fast. That can cause pain or other effects. We treat that problem with a hyperbaric chamber. Nitrogen narcosis only occurs at depth, and is from excess nitrogen pressure slowing down nerve conduction. That gets better when you ascend."

"Well, here's where I'm a little shaky, doctor. Both conditions can cause neurologic impairment, make you confused, lose your way, so to speak?"

"Well, yes, but the bends only does that if bubbles get to the brain, and that's really in the form of a stroke. Nitrogen narcosis is not a stroke, its more like being drunk, and is fully reversible.

"And you treat the bends in a hyperbaric chamber, but nitrogen narcosis you don't?"

"That's right. The bends is usually treated in a hyperbaric chamber. For nitrogen narcosis the problem goes away when you ascend because that relieves the pressure off the nerves."

"How would the two conditions show up on the autopsy?"

"Well, as I said, nitrogen narcosis wouldn't show up at all. Everything would be normal. But with the bends you would see definite areas of blockage in the organs, the blood vessels, maybe even a heart attack. You see cell death in some areas, what we call necrosis."

"That's different than narcosis?"

"Yes, completely different. Necrosis is cell death, narcosis is just like a little sleepy. They're really medical terms, sorry if they're confusing."

"No, that's fine, doctor. We just need to make sure we don't get confused." Kirkland walks over to the easel and writes in big block letters

nitrogen bubbles on ascent= bends (can cause cell death) ----> treat in hyperbaric chamber

Narcosis = too much nitrogen pressure ----> ascend and cured

"Is that right, Dr. Bergofsky?"

"Well, it's kind of simplistic, but it's basically correct."

"And this cell death can occur in the brain?"

"Yes, if bubbles get to the brain."

"And that would be a stroke?"

"Yes, it could cause a stroke, but if the victim can get to hyperbaric chamber immediately the symptoms might go completely away and there would be no lasting effects."

"But I imagine a stroke under water could also lead to drowing?"

"Yes, definitely."

"So how do you know that the two navy recruits didn't have the bends, how do you know it was nitrogen narcosis?"

"I believe I said we assumed that's what it was, based on the circumstances and the autopsy findings."

"Dr. Bergofsky, I have in my hand the autopsy report of one of those recruits. With the permission of the court I would like to introduce it into evidence but leave off the name of the deceased. It was obtained via the Freedom of Information Act, and I respectfully ask that Dr. Bergofsky read it and affirm to the court that it is indeed the report of one of the two Navy Seals he referred to."

"OBJECTION! OBJECTION! Your honor, we have obtained Dr. Bergofsky's opinion. He was not quoting the autopsy report, he was giving his opinion. To introduce the autopsy report of a deceased Navy Seal is way out of bounds."

"Your honor, the nature of this report has already been introduced into testimony by Mr. Pearson's witness. I am merely taking it one step further. If this report is not allowed in, then Mr. Pearson should recant his entire testimony and it should be stricken from the record."

The judge motions both sets of lawyers to her bench. She peruses the report and after more murmuring by both lawyers, says:

"Dr. Bergofsky, please review this report and state if it in fact is the autopsy of one of the deceased Navy Seals you referred to. Do not mention the name."

After a few seconds, "Yes it is."

"Then this report may be entered into evidence, Exhibit 5. It will henceforth be called USN-Autopsy # 86-869332, and the deceased's name will not be entered."

"Thank you, your honor. Now, Dr. Bergofsky, please look through this report."

He does.

"Have you ever seen it before."

"Yes, I have."

"Can you read for me the section on the brain findings. What was found in the brain of this deceased Seal on the autopsy?"

"There is no section on the brain."

"No section on the brain?"

"No."

"Why not?"

"The brain was not autopsied."

"Not autopsied? How so?"

"There was no neuropathologist at the Seattle Naval Hospital at the time the recruit was flown there, and for unclear reasons the body was not sent to San Diego where a more complete autopsy could have been done."

"But you testified that there was an autopsy, and that's why you were certain he didn't die of the bends? If I may quote that part of your testimony, you said: 'Heart, every other organ was OK, except the lungs, which were water logged. So we assumed it was probably nitrogen narcosis. And I think that's what happened to Ms. Knowlton.' So when you said 'every other organ was OK except the lungs,' you really didn't mean every other organ, is that correct?"

"Well, I meant that my conclusions were from the autopsy that was done."

"Doctor, would you agree that the bends is more likely to occur in cold water?"

"Yes."

"In deep diving, or diving for prolonged periods?"

"Yes."

"Is it not true that the Seals are trained to go deep and stay long? Go deeper and longer than recreational divers?"

"Yes."

"And that Alaska waters are very cold for diving?"

"Yes."

"Then how can you sit here today and tell the court that this Seal had nitrogen narcosis? And not the bends?"

"I can only repeat what I said before, that the autopsy that was done did not reveal anything to suggest decompression sickness or the bends."

"Dr. Bergofsky, would you please read the final conclusions of this autopsy report. I believe it is on the very first page."

Bergofsky reads: "Final Cause of Death: Drowning."

"I'm sorry Doctor, but is that the complete list? Is there anything more?"

"No, not under the Final Cause of Death."

"Does it not state anything about nitrogen narcosis?"

"No, it doesn't"

"So how does the autopsy of this Navy Seal support your conclusion?"

"As I said, the autopsy is negative in cases of nitrogen narcosis. It doesn't show anything. It's the absence of findings that supports that diagnosis."

"But you also said, did you not, that the autopsy was incomplete. How do we know he didn't have a stroke? Isn't that one way the bends can present?"

"Yes, but it's unlikely"

"Unlikely?"

"Yes, unlikely."

"Why?"

"Because if that was the case, if he had a stroke from nitrogen bubbles, I would expect to find bubbles in his spinal cord, his heart, his other organs. But there was no damage in any of those places."

"But he could have had a small enough stroke that caused him to drown, could he not?"

"I suppose so."

"And it could have been caused by bubbles going through his lungs and into his brain, is that not possible?"

"Yes, that's possible, but again unlikely."

"So in fact there is no official conclusion by the Navy that he died from nitrogen narcosis, is there?"

"No, there isn't. It's just my opinion."

"Thank you. Now, what about the second Seal who died? Have you seen the autopsy report?"

"Yes, years ago."

"And what did it show?"

Dr. Bergofsky is becoming nervous, fidgety. "I believe it showed that the cause of death was drowning also, as I recall."

"Do you also recall the circumstances of that drowning?"

"Only vaguely. It was in the Persian Gulf, and there was some underwater demolition work."

"And what led you to believe that death was also from nitrogen narcosis?"

"Well the same thing. There was no evidence for the bends on autopsy."

"Do you know where that report is now?"

"No. In Washington, I presume."

"Did you know that that report is classified Top Secret, and won't be released even under the Freedom of Information Act?"

"OBJECTION! Mr. Kirkland is trying to introduce testimony. He is not a witness."

"Sustained."

"Dr. Bergofsky, can you tell us anything more about that autopsy than that it listed the cause of death as drowning."

"No, I'm afraid there is nothing more to tell."

"Doctor, you are under oath, and I must remind you that there are penalties for perjury, so I ask you one more time, what else was listed on that autopsy report than drowning as the cause of death."

"OBJECTION! Your honor, this doctor is not on trial! Mr. Kirkland is abusing the witness. Dr. Bergofsky has already stated what he knows about that autopsy report and to imply perjury is egregiously out of line. Mr. Kirkland should be sanctioned by the court!"

At this outburst Kirkland asks if he may approach the bench. Both lawyers are summoned. There is more muted debate among the three jurists, while Dr. Bergofsky maintains a blank stare forward. A few minutes pass, and Kirkland takes up his position in front of the witness to continue his questioning.

"Doctor, you are familiar with the medical literature on nitrogen narcosis, is that correct?" Evidently the second autopsy report is a dead issue.

"Yes, as well as anyone."

"In fact, you stated, again to quote your earlier testimony, 'We went back and reviewed the Navy experience in this situation, and sure enough there was plenty of documentation for nitrogen narcosis effects at around 100 feet.'

"Yes, that's correct."

"What kind of documentation."

"The Navy has done many studies on the issue. They've been published."

"Yes, indeed, and I happen to have one in my hand. Would you review this article, and please read the title." He hands the paper to Dr. Bergofsky.

"Graded Effects of Nitrogen Pressure on Navy Recruits: Results of the Hyperbaric Phase I Trials."

"Doctor, is this one of the articles you referred to."

"Well, it is surely one of them. There are others of course."

"Doctor, would you turn to page 234 of that article and quote the second paragraph. I believe this refers to nitrogen narcosis at a depth of 90 to 110 feet."

"OBJECTION! This is not the doctor's work, and is hearsay."

"Your honor, this witness has testified to wide experience in nitrogen narcosis and as part of that experience he has quoted autopsy data and Navy research. We have a right to question the nature of both pieces of evidence. The doctor mentioned the Navy Research, not the defense. It would be misleading in the extreme for the jury to think that the Navy research in question supports the doctor's contentions, and that is the purpose of my line of questioning."

"Overruled."

"Dr. Bergofsky, please read that paragraph."

Bergofsky reads:

"Thirty-five percent of Navy recruits at depths as shallow as 90-110 feet manifested some impairment in performing mathematical calculations, compared to surface scores (See Table 2). These percentages increased linearly so that at 200 feet depth 100% of recruits manifested impairment in performing calculations. In no case was verbal communication affected. On surfacing all test scores matched the pre-study scores. There were no neurologic sequelae."

"Thank you doctor. Now, could you interpret this paragraph for the jury?"

"What do you mean?"

"Well, for starters, what type of impairment did thirty percent of the recruits have at 100 feet? Were they unconscious, were they deaf and dumb, what was the impairment?"

"They had some impairment in performing mathematical calculations."

"I see, like multiplying three digit numbers with paper and pencil? I believe that was one of the tests?"

"Yes, things like that."

"And in 30 percent of them?"

"Yes."

"And this study was in a hyperbaric chamber, not in the actual ocean?"

"Yes, that's right."

"So, is it your opinion that a Navy recruit at 100 foot depth in the ocean would drown because he can't multiply two numbers on piece of paper?"

"Well, there is range of effects of nitrogen narcosis."

"Oh? Where is the range in that paper? I believe not one of the recruits had any neurologic impairment, even to a depth of 200 feet."

"Well, there are other papers, I'm sure."

"Doctor, would you please tell the court about these other papers."

"I can't remember any off hand."

"Not one?"

There is a pause.

"Not now."

"Doctor, are you familiar with the writings of Jacques Cousteau?.

"Well I certainly know who Jacques Cousteau was. He and another guy invented modern scuba equipment. Back in the 40s."

"So you would agree that during his long career he knew something about scuba diving?"

"Well, yes, but he was not a physician, so I would have to ask what relevance that might have to my opinions."

"In due time doctor. No further questions."

* * *

A jury trial is like a close football game. One minute the home team is on top then, in a flash, the visiting team presides. It is up to the jury to determine the final score.

Pearson calls to the stand his third and final witness, a tall man in his 50s, well dressed and with a greying goatee. He is sworn in.

"Please state your name and position."

"Brian van Dehavily. I am Dean of Theater Studies at Columbia University, in New York."

"Mr. Dehavily, did you know the deceased student, Ms. Jennie Knowlton.?"

"Yes, I did."

"In what capacity?"

"She was enrolled in our theater management program at the University. As Dean, I was her advisor."

"What did that job entail, as regards Ms. Knowlton."

"She was between her junior and senior years when she passed away. In her junior year she had declared her major, and I spoke with her on several occasions, both before and afterwards. On our last visit together, we planned her final year of course work."

"Leading to what? What type of degree?"

"Well, it's a BA degree in Theater Management. You learn all about the production of plays and concerts, particularly the economics of managing an artistic company."

"And the job market for this type of graduate?"

"Oh, it's very good."

"And what would you expect this type of professional to earn a year, starting with the first year, and say by the peak of her. . ."

"OBJECTION!" Kirkland is on his feet, pencil waving. "Your honor, this testimony is tangential to causation of death, and is simply not relevant."

"Not so," Pearson cuts in, "under Ohio Statute a victim of negligence may introduce relevant economic information about earnings or future earnings into testimony. We have every right to retain this witness."

"Your honor," Kirkland responds, "the deceased was not married and had no family. Her parents were not dependent on her and so her future earnings are immaterial to this issue."

The judge nods affirmation. "Sustained. Mr. Pearson, kindly confine your questions to non-economic matters from this witness."

"Mr Dehavily, from your contacts with the deceased, would you describe her as a balanced person?"

"I'm sorry, what do you mean?"

"Well, did she seem level-headed, have common sense. . ."

"OBJECTION. He is leading the witness."

"Sustained."

"OK, let me ask you this. In your own words, please describe Ms. Knowlton as you knew her, to the jurors."

"She was bright, hard working, seemed intent on her career choice. I don't think she drank or used drugs, and all around was a solid student. Very pleasant. I would have gotten to know her better her senior year."

"Was she ever arrested, to your knowledge?"

"No."

"Was she reckless in any way, to your knowledge?"

"No."

"Was she ever, to your knowledge, in any kind of trouble, academic or otherwise.?"

"No, not at all."

"Thank you. No further questions."

Kirkland rises and ambles to the witness chair.

"Mr. DeHavily, may I ask you your age?"

"52."

"And how long have you been at Columbia?"

"This is my sixth year."

"And before that?"

"I was on the faculty at Dartmouth University, in theater studies."

"How many students are in your program at Columbia?"

"At what level?"

"Well at the junior year level, where you met and counseled Ms. Knowlton?"

"At any one time, about 35 to 40."

"And you meet with all of them?"

"Oh, yes, if they have an interest in majoring in some aspect of theater."

"The total amount of time you would spend with someone like Ms. Knowlton, in her junior year, would you estimate that for us?"

"The total amount of time?"

"Yes, are we talking about an hour one on one with each student, 10 hours, 100 hours?"

"Overall, I would say 1 to 2 hours."

"So you don't really get to know them very well, do you?"

"OBJECTION."

"Sustained."

"Mr. Dehavily, do you know what major Ms. Knowlton was enrolled in before she switched to theater management?"

"No, I don't recall."

Mr. Dehavily, did you know that she was dating a Mr. Archer at the time she declared her major in theater management?"

"No, I did not. Obviously we don't get into their personal lives, that's not our policy."

"Mr. Dehavily, did you know that on September 22, 1995 Ms. Knowlton was admitted to the Columbia infirmary and observed overnight following a tylenol overdose?"

"OBJECTION!" Pearson is on his feet, livid. "Your honor, this line of questioning is getting out of hand. Mr. Dehavily is not a psychiatrist or a minister. Mr. Kirkland is asking purposely rhetorical questions to mislead the jury."

"Your honor, I am not at all asking purposely rhetorical questions. I would love for Mr. Devaily to answer that question. He is evidently brought into this courtroom to tell us what a wonderful person Ms. Knowlton was academically and personally, and what a bright future she had before her. That may or may not be true, I don't know, but I do know that someone who has spent less than two hours counseling a student on purely academic matters cannot possibly know anything about her psyche, her fears, her problems or what she might or might not do under water. He is Mr. Pearson's witness, not mine, your honor, and the questions are relevant."

"Overruled."

"Did you, Mr. Dehavily?"

"I'm sorry, did I what?"

"Did you know that on September 22, 1995 Ms. Knowlton was treated in the Columbia infirmary following a tylenol overdose?"

"No, I didn't"

"Thank you. No further questions."


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