Perfect Poison (44 page)

On November 17, 2000, David Hoose had told Judge Ponsor that he wasn't sure his client was going to testify. Under federal law, defense attorneys can call their client to the stand at any time during a trial. But here they were nearly three months later, after the prosecution had called fifty-two witnesses, and Gilbert's defense team was ready to present its case. But a quick look at its witness list revealed that Hoose still hadn't decided whether Gilbert would take the stand. With all that going on in the courtroom the past few months, many were speculating that it was the only chance the former VA nurse had left.

When Judge Ponsor turned the trial over to the defense on Tuesday, February 8, 2001, the first thing David Hoose did was file a motion to acquit Gilbert on all charges.

Judge Ponsor denied the request.

The defense's first witness, Dr. Thomas Aretz, the director of cardiovascular pathology at Massachusetts General Hospital, took the stand and repeatedly disputed prior testimony by government witnesses who had claimed the veterans died of epinephrine poisoning.

Under cross-examination by Ariane Vuono, however, Aretz contradicted himself, telling the jury that a determination of death by epinephrine poisoning is complicated science.

“That makes epinephrine a pretty good poisoning [then], doesn't it, doctor?” Vuono asked.

“I can't answer that.”

On Friday, Dell Levy, the policy and procedure inspector from the HCI in Washington, DC, was among three witnesses called. Hoose questioned Levy about her preliminary investigation and how she initially noted that, in her early opinion, no crimes had been committed. Using reports, medical records and interviews she had conducted with some forty VAMC employees, Hoose made it clear to the jury that Levy never viewed the deaths as suspicious.

But under cross-examination, Vuono got Levy to admit that her job was to generate a “clinical”—not a “criminal”—report, and that her first draft was rewritten by her supervisors, who, she said, removed incriminating information.

Late in the afternoon, Judge Ponsor held a hearing without the jury present regarding whether a convicted drug dealer, Khalil “O-Dog” White, would be allowed to testify that Bonnie Bledsoe and John Wall stole a bag of medication from the VAMC so they could use it to barter for street drugs. White, himself in the middle of an eighteen-month sentence for marijuana possession, said he met Wall one day, and Wall had a paper bag full of medicines he had apparently taken from the VAMC.

Hoose theorized that the bag was full of epinephrine. But White admitted he didn't know what was in the bag, because he never looked inside of it.

After listening to White testify, Ponsor said he would “review case law” before making a decision whether the jury should hear the testimony.

When the trial resumed on Monday, Dell Levy was followed by David Rejniak, Gilbert's former friend and colleague.

As Rejniak made his way to the witness stand, Gilbert seemed to perk up a bit, as if she were happy to see him.

Rejniak testified that Gilbert had summoned him to the ICU on Feb. 2, 1996, mainly because Kenny Cutting wasn't looking so good. Then he said, “She seemed a little bit upset. She didn't want to be alone with him when he died.”

Under cross-examination, however, Welch got Rejniak to admit that Cutting had been stable when Rejniak relieved Gilbert, and that he didn't expect Cutting to die less than an hour after Gilbert took her break.

Dr. Graham R. Jones, the director of a toxicology lab in Edmonton, Alberta, told the jury on February 13 that tests by National Medical Services showing that ketamine was found in one of the victims should be considered “inconsistent and unreliable.”

Jones, the sixth witness for the defense, said that because NMS had made mistakes in its epinephrine tests, it shouldn't be trusted to test for ketamine.

When Vuono got a crack at the doctor, she asked him several questions about his qualifications, then whether he had ever tested tissue samples from embalmed and exhumed bodies for the presence of metanephrine or norepinepherine, breakdown products of epinephrine.

“No, I have not,” Jones said.

 

 

It was easy to tell by the fourth day of defense testimony that the
Government vs. Kristen Gilbert
was turning into
Kristen Gilbert vs. Bonnie Bledsoe and John Wall.
Just about every witness Hoose, Miles and Weinberg had put on the stand so far had something to offer that would give the jury a reason to believe the missing ampoules of epinephrine had been stolen by John Wall and Bonnie Bledsoe.

Maybe Hoose saw it as his only option?

Nevertheless, when respiratory therapists James Kolodziej and William Gibb took the stand on February 13, they testified that medicine cabinets on Ward C where ampoules of epinephrine were kept had sometimes been left wide open and unattended. Anyone, from the janitor to the director of the VAMC, could walk up and grab an ampoule of epinephrine.

But by the end of the day, Judge Ponsor had heard enough.

During a hearing, Ponsor said he wasn't sure he was going to let the defense continue asking witnesses about Bonnie Bledsoe's life. It was, as he had earlier suspected, getting out hand.

“I'm concerned about to what extent this should become a trial of ‘Is Bonnie Bledsoe a good nurse?' ” Ponsor said.

He had a point.

Hoose said the government had put a bull's-eye on Gilbert's back from day one, pinning the missing ampoules of epinephrine on her, and refused to look at any other suspects.

Also a good point.

“What we've attempted to do is demonstrate that there was an opportunity to steal medications available not only to nurses but to respiratory therapists.”

Hoose paused.

Then, loudly, he said, “Bonnie Bledsoe [had] a
motive.”

Later during the same hearing, Ponsor ruled that the defense could not call convicted drug dealer O-Dog White to testify that Bledsoe and Wall wanted to trade hospital drugs for crack cocaine. There just wasn't enough evidence to the fact.

Vuono, at one point, argued that White's testimony was just another attempt to disgrace Wall and Bledsoe.

“They've had their shot at Bonnie Bledsoe and Mr. Wall,” Vuono shouted.

Judge Ponsor ultimately agreed.

 

 

Dr. William Boutelle, chief of the medical staff at the VAMC, testified on Wednesday, February 14 that, at first, the allegations brought by John Wall, Kathy Rix and Renee Walsh contained no evidence of any crimes. Boutelle had come under fire for not closing Ward C after the nurses had come forward. Many said he should have immediately closed the ward and started a thorough investigation that day. But on the stand, he said that his staff's initial findings—made in early March 1996—indicated there wasn't a pressing need to relocate staff and lock up the ward.

At one point during his testimony, Boutelle, perhaps unknowingly, tightened the noose around Gilbert's neck by suggesting that since the spike in medical emergencies and deaths dramatically declined after February 17—the day Gilbert left—there was no need, after that, to look any further.

 

 

Ignoring Judge Ponsor's suggestion, thus continuing with its bashing of Bonnie Bledsoe, the defense called George Ponte, who, in 1995 and 1996, supervised respiratory therapists at the VAMC.

Ponte, a short man, balding on top with a ponytail snaking down his back, had been a professor at Springfield Technical Community College when he met Bonnie Bledsoe in the late eighties.

In March 1991, when Ponte was hired by the VAMC, he was disappointed to learn that Bledsoe was also working there. They hadn't really parted on good terms back at STCC, and Ponte testified that he and Bledsoe carried that animosity into their new relationship at the VAMC.

Ponte told the jury he had heard that John Wall had given Bledsoe a shot of epinephrine as late as the spring of 1995.

After telling jurors that Bledsoe deliberately began to avoid him when the two began working together, he said he found out in February 1995 that she and Wall had been using heroin and crack, and, by late October, initiated steps to terminate her employment because of that discovery.

Paul Weinberg wanted to know how Ponte knew they were abusing drugs.

“She told me she had snorted heroin and smoked crack at work.”

Ending his direct examination, Weinberg asked, “Finally, Mr. Ponte, what is your opinion of the reputation of Bonnie Bledsoe for truthfulness?”

“I think she was a liar. I think that was a known fact amongst the people that she worked with. She was a manipulatative person. . . .”

“Thank you.”

On cross-examination, Ariane Vuono had Ponte establish right away that Bledsoe was only eighteen or nineteen years old at the time they had met at STCC. Then she had him describe Bledsoe's asthmatic condition, how it was treated with shots of epinephrine, and that it was no secret.

Using a report filed on May 1, 1996, only months after the investigation had started, Vuono pointed out that Ponte didn't know Bledsoe had a drug problem years before, as he had claimed on direct examination, because there simply wasn't any documentation of it. Since he was her boss, part of Ponte's job would have been to write her up if he suspected drug use, Vuono suggested. But he waited. Vuono wanted to know why.

Ponte admitted that although he suspected her of abusing drugs as early as the fall of 1994, he had indeed waited until the spring of 1996 to write a “Medical Certification alert” about it. But he gave no specific reason for his decision to wait.

At 11:30, Ponsor recessed for a much-needed break.

Back in court twenty minutes later, Vuono grilled Ponte about the relationship he'd had with Bledsoe prior to the time they had begun working together, and asked him if he had a “history” with Bledsoe?

“Could you define ‘history'?”

“Well, you had been her professor at STCC, is that right?”

“That's correct.”

“She was eighteen or nineteen at the time?”

“That's correct.”

“And it was also during that time when you had a sexual encounter with Ms. Bledsoe, didn't you?”

“No . . .”

“Did
you have sexual intercourse with Ms. Bledsoe?”

“No!”

“You were Ms. Bledsoe's professor when she was a student at STCC, is that right?”

“That's correct.”

“And are you telling this court
and
jury that during the time that you were her professor and she was your student, you
didn't
have sexual intercourse with her?”

“That's right.”

“Object, Your Honor,” Weinberg shouted. “It's been asked already.”

“I'm going to overrule.... The answer is in evidence.”

Vuono was confused. She knew Ponte had slept with Bledsoe.

“Did the event happen shortly after her graduation?”

“Maybe a year or more.”

“So she was maybe nineteen or twenty years old at the time?”

Ponte then made a point to say that he wasn't married at the time, and that the relationship between him and Bledsoe “wasn't serious.”

“In fact, it was a one-time encounter, wasn't it?” Vuono wanted to know.

“And was in your car?”

“I believe it was.”

By the end of his testimony, Ponte admitted that Bledsoe had filed a sexual harassment suit against him while they were working at the VAMC, and that she had expressed her concern over the harassment to fellow employees, but the suit was later dropped.

Vuono then wanted to bring Ponte (and the jury) up to date on Bledsoe's new life.

“Did you know that she has been sober for the past year and that she was back to working as a respiratory therapist again?”

Ponte said he did not.

 

 

Ann French, Gilbert's former coworker and new friend, testified next that Gilbert had been shaken over the deaths at the VAMC and that, in her opinion, some of the patients in question could have died of natural causes.

Regarding Ed Skwira, French said, “I didn't expect him to survive the evening—never mind the night,” adding that “his color was terrible. He just didn't look good. He was gray, almost like cement color.”

First thing the next morning, Dr. James Kirchhoffer, chief cardiologist at Baystate Medical Center, began painting a significantly different picture of how Kenny Cutting, Stanley Jagodowski, Henry Hudon and Ed Skwira died. The government had already put on its expert, Dr. Thomas Rocco, who had, some said, given a very convincing argument as to how the men had died of sudden cardiac death. But now it was Gilbert's defense team's turn at presenting its version of the deaths, using its own cardiology expert.

After going through his extensive list of credentials, Kirchhoffer, who had acquired his degree in medicine during the late seventies, told the jury that his specialty included cardiac eletrophysiology, which is “the study of abnormal heart rhythms and diagnosis and treatment of patients who have abnormal heart rhythms and symptoms that go along with that.”

Then he broke into his theories about epinephrine, which contradicted completely Dr. Rocco's, Dr. Grayboys's and Dr. Baden's previous opinions.

“Have you . . . become familiar with the literature on epinephrine and its effects on the human body?” David Hoose asked the doctor.

“Yes.”

“We've been through this with other physicians. So . . . based on your experience, what is the normal time that it takes for epinephrine to have an effect on the body when it's injected intravenously?”

“It depends on how close the IV line is to the heart. But generally, if it's a central IV, close—where the veins are actually close to the heart—you can see epinephrine effect within fifteen or thirty seconds. If it's a vein that's . . . in the arm someplace, it may take thirty to forty-five seconds, even a minute, before you can start to see the epinephrine effect.”

“And how long does the epinephrine effect last?”

“Epinephrine effect usually lasts—it peaks at two to three minutes and lasts around five minutes.”

Kirchhoffer, who sat in the courtroom's front row and took notes while Dr. Rocco testified nearly three months before, explained to the jury that he believed the cause of death of the patients in question had nothing to do with epinephrine, but was more of a combination of the ailments each victim had suffered from and the drugs each had been on while at the VAMC.

By the end of the morning, after Kirchhoffer made a compelling argument as to how Stanley Jagodowski had died of natural causes, Hoose got to the core of why he had the doctor on the stand.

“Let me ask you one final set of questions with regard to Mr. Jagodowski, doctor, and I'm going to put it in the form of a hypothetical. Let's assume . . . that an LPN saw someone, an RN, go into Jagodowski's room with a needle and syringe, that the LPN said that she heard Mr. Jagodowski say, ‘Ow, you're hurting me,' or, ‘You're killing me,' that immediately thereafter . . . the LPN went into the room, asked Mr. Jagodowski if he was all right, that she spent four to five minutes with him, that she left the room and that fifteen minutes later . . . a code was called as a result of Mr. Jagodowski's cardiac arrest.... [D]o you have an opinion as to whether epinephrine could have caused that event?”

“Yes.”

“And what is that opinion?”

“That's not something that epinephrine would do. Epinephrine is a rapidly acting and rapidly disappearing medication. I would expect its effect to be gone within five minutes. This time course is much too long for epinephrine.”

Judge Ponsor broke for lunch.

When court resumed an hour later, Hoose wanted to clear up an error, he said, in Kirchhoffer's earlier testimony. The doctor had testified that he was being paid one hundred and fifty dollars an hour for his work in the case, but it was, Hoose told the court, two hundred dollars an hour.

As Kirchhoffer went through each of the victims' medical charts, he continually repeated his theory that each vet had died of natural causes, not epinephrine poisoning. Even those patients with healthy hearts, Kirchhoffer opined, could have died of sudden cardiac death, mainly, he said, because of the medications they were on at the time of their deaths. He cited alcohol abuse, smoking and a poor diet as major factors in all of the deaths. But not an overdose of epinephrine.

It was a solid argument from someone who, like Dr. Rocco, appeared to know what he was talking about. Still, for the jury the bottom line was, who was the more credible witness?

Bill Welch was about to answer that question.

 

 

Several days before Welch knew he was going to cross-examine Dr. Kirchhoffer, he decided, for the hell of it, to key Kirchhoffer's name into an Internet search engine. A minute later, Welch was shocked to discover Kirchhoffer had received some type of “letter of reprimand” from the FDA regarding one of his clinical trials, a study he had conducted at Baystate Medical Center in 1995.

Welch, of course, was curious.

To obtain a copy of the letter, the Web site said, “send a check for fifty dollars.”

So Welch went one better: He sent the check, along with a subpoena for the entire file.

 

 

On the morning of February 16, Welch first questioned how Kirchhoffer had come to his conclusions regarding the deaths in question.

Kirchhoffer admitted that, in determining causes of death for the patients, he never considered that Gilbert had been one of the nurses giving out medicines. Welch contended that some of the patients may have died from the medications they were on—but it was the
defendant
who had administered the meds.

Welch then wanted to know how Kirchhoffer could have come to a definitive conclusion as to how Thomas Callahan had died if he hadn't taken into account all the factors involved in his death. Further, Welch suggested, Kirchhoffer had based his findings on medical records that contained entries made by Gilbert herself, but didn't take into account that she had either falsified some of the records or failed to include relevant information.

“But is it fair to say that . . . you're relying upon something,” Welch asked in a sarcastic tone, flipping through Callahan's medical file, “in this particular progress note written by the defendant, isn't that correct?”

“That's correct,” Kirchhoffer said.

“And it's also accurate that we don't see the conversation [between Gilbert and Callahan] anywhere in this particular progress note, isn't that true?”

“That's true.”

“We don't get to see what the rhythm was before [his medical emergency] and whether it truly converted or how it evolved, isn't that correct?”

“That's correct.”

“My recollection of your testimony with respect to Mr. Callahan was that this particular chart offered you very little significance, is that true?”

“That's correct.”

Throughout the morning, Welch continued to hammer Kirchhoffer about how he had reviewed the medical records of the victims with blinders on. For example, how he failed time and again to take into account all of the evidence from all of the doctors involved, but instead based his findings on only certain sections of the medical records. It had been well documented that Callahan had shouted, “I think I'm going to die” shortly before his code, but Kirchhoffer said he didn't find any importance in that declaration.

“Regarding Callahan's episode, were you advised that three 1:1000 epinephrine ampoules were found in his—in the needle disposal bucket in the ICU sometime after this event?”

“I've heard rumors to that effect.”

“But you have not received any direct information to that effect?”

“No, that's not in the medical chart.”

At 12:57, Ponsor let the jury have a break. They looked tired, moving around and slouching in their seats while Kirchhoffer testified. It was clear many of them had heard enough from the doctor. As his testimony dragged on, one juror later said Kirchhoffer began to sound like he was “full of shit.” He kept trying to give the impression that he knew more than he did.

It had been a long three months since opening arguments, and many of the jurors had changed remarkably. Scott Stetz, at twenty, the youngest juror, had gained nearly fifty pounds since the start of the trial, and others were beginning to complain about how grueling the whole process had become.

By two o'clock, everyone was back in court listening to Welch as he continued with his grilling of Dr. Kirchhoffer.

He first outlined the many reasons why Kenny Cutting should have lived.

“And Mr. Cutting had a normal heart?”

“That's correct.”

After a few more medical questions regarding Cutting's condition at the time of his death, Welch walked over to where Ariane Vuono was sitting, leaned down, and whispered, “What do you think . . . now?”

“Go for it,” Vuono said.

“Doctor, during the course of your direct exanimation, you were [asked] about a peer review function that you performed, is that right?”

“Yes.”

“And you were also asked about quality assurance tasks that you performed, correct?”

Obviously uncomfortable, Kirchhoffer began to shift in his seat.

“Yes,” he said after a brief pause.

“And you indicated that you approached this case in somewhat of the same way, sort of doing a peer review of these medical files, correct?”

“Yes.”

Welch had come from the old school of law where litigation was all about information—possessing it, controlling it, managing it, and using it effectively.

It turned out that Kirchhoffer had been in charge of a government-funded study involving the use of pacemakers, but had received a letter from the FDA in 1995 warning him about “his failure to thoroughly document [the study].” One of his patients involved in the study, Welch found out through the subpoena, had died, and Kirchhoffer never knew about it because he wasn't keeping tabs on the study the way he was supposed to. He had also been reprimanded for putting the wrong pacemaker into a patient, for pre-recording the results of tests into charts, and for not having the appropriate documentation—like rhythm strips, for example—to support some of his data.

“Did there come a point in time in the fall of 1995 when you received an FDA warning letter concerning poor documentation of your cardiovascular studies”

“Yes.”

David Hoose began to slouch in his chair as if someone had let the air of him. Kirchhoffer put his head down for a moment, looked up at Welch, and began shaking his head, slowly.

“And you were criticized by the FDA for not documenting the death of a patient in one of your studies, isn't that correct?”

“No. I was
criticized
for not sending a copy of the documentation to the IRB. I had sent a copy directly to the coordinating center, and the copy that was supposed to go to the IRB didn't go.”

“And when you say ‘IRB,' that is the Institutional Research Board of the Baystate Medical Center?”

“Yes.”

“So you had no time frame at Baystate . . . via documentation that a patient had died in one of your cardiovascular studies?”

“That's correct.”

“The FDA warning letter,” Welch continued, “wasn't limited solely to not documenting the death of the patient, isn't that correct?”

“You know,” Kirchhoffer said mockingly, “I don't have the FDA warning letter in front of me, and I don't have it memorized.”

“Well,” Welch said, smiling, “let me see if I can help you. It also had to do with not documenting the accidental implantation of an experimental pacemaker in a patient and then subsequent explanation?”

Kirchhoffer became incensed. He said it had to do with the wiring,
not
the pacemaker itself.

For the next few minutes, in a heated exchange, Welch went toe-to-toe with Kirchhoffer over the lack of control Kirchhoffer had over the study, along with his not following up on patients to see how they were doing. Then Welch tried to tie together how Kirchhoffer's negligence in the pacemaker study could have had an ill effect on his testimony in court.

“It's your testimony that [Ed] Skwira, I believe, had an acute myocardial infarction on the morning of February 15, correct?”

“That was my opinion.”

During his redirect examination, David Hoose asked Kirchhoffer if he had anything further he wanted to add. After briefly explaining the letter, Kirchhoffer said, “No one has a perfect study.”