THE COURT: We’re back with People versus James Henderson, Jr., and Matthew Patrick Mercier. Miss Lamp is here from the prosecuting attorney’s office, the gentlemen defendants are here and Mr. Dungan is here. Mr. Dungan?
MR. DUNGAN: Yes, Your Honor.
THE COURT: A witness please.
MR. DUNGAN: Thank you.
THE COURT: Stop and raise your right hand please. Do you solemnly swear or affirm the testimony you will give in this matter will be the truth, so help you God?
DR. IRVING: Yes, I do.
THE COURT: Come on around and watch your step coming up. That chair is on rollers, so be careful. The microphone is not going to make you any louder either, so you want to make sure you speak up loudly and distinctly for us. State your full name.
THE WITNESS: James Kenneth Irving.
THE COURT: Middle name again?
THE WITNESS: Kenneth.
THE COURT: How do you spell your last name?
THE WITNESS: I-r-v-i-n-g.
THE COURT: Thank you. Mr. Dungan?
MR. DUNGAN: Thank you, Your Honor.
JAMES KENNETH IRVING, DVM
Called at 12:30 p.m. by Defense, sworn by the court, testified:
DIRECT EXAMINATION
BY MR. DUNGAN:
Q. Dr. Irving, would you describe for the judge your educational background please?
A.
I had high school, obviously a high school education and a doctor of
veterinary medicine from
Q. And did you attend an undergrad college before that?
A.
I went one year to a junior college and then I transferred to
Q. And graduated in 1969?
A. Yes.
Q.
And have you been licensed in
A. Yes.
Q. What’s your professional experience since becoming a licensed vet?
A. I’ve been a, started out as a mixed animal practitioner for twelve and a half years and since then I’ve been strictly large animal, more than one species.
Q. Including horses?
A. Yes.
Q. And do you have an office?
A. Yes.
Q. Where is that located?
A.
It’s on 7117 M-99 North, Homer,
Q. All right. How long have you been at that office?
A. Since 1982.
Q. All right. Essentially run a large animal practice out of that office since ’82?
A. Yes.
Q. All right. What’s your, how much of your professional experience concerns work with horses?
A. Right now we’re doing approximately ninety-five percent of our practice is equine.
Q. All right. How long has it been that kind of percentage?
A. Probably the last ten years.
Q. All right. Do you have personal experience with horses as well as far as owning them, taking care of them?
A. Yes.
Q. Okay. How long have you been involved with horses personally?
A. Personally? Since I was six years old.
Q. Okay. Do you know a gentleman named Matt Mercier?
A. Yes, I do.
Q. How is it that you know him?
A. He’s a client of the clinic.
Q. How long has he been a client of the clinic?
A. Since I believe ’01. That’s the first date I have on him.
Q. And when you’ve seen him on a professional basis it’s only been in regard to injuries to horses. Is that correct?
A. Well, not only injuries. I mean it was treatment of horses. He has barrel racing horses so we treat them and treat sickness, treat injuries, whatever comes up.
Q. But he’s only brought horses to you.
A. Yes.
Q.
Have you been out to his farm in
A. No, I haven’t.
Q. All right. So any animal that you’ve treated has been brought to you?
A. Yes.
Q. Do you know an individual named Jim or James Henderson?
A. I don’t know him personally, but I understand he’s a partner with Matt.
Q. Have you ever met him in person?
A. No.
Q. All right. Has he ever brought an animal out to you to be treated?
A. Not that I remember.
Q. Have you ever discussed an animal’s treatment with him on the telephone?
A. No.
Q. All right. You were asked to look into injuries to a horse named Ice. Is that correct?
A. Yes.
Q. One that Matt Mercier brought to your attention?
A. Yes.
Q. And when did you first become involved in that?
A. Do you mind if I look?
Q. You did kind of a written statement?
A. Yeah.
Q. And if you look at that, would that help refresh your memory?
A. It will give me the dates when Matt called.
Q. Sure. Go ahead and take a look at that. If you would, just read that to yourself silently and then let me know when your memory’s refreshed and that you’re ready to testify.
A. Okay.
Q. All right. When did you first become involved as far as that horse is concerned?
A. I talked to Mr. Mercier on March sixteenth at nine fourteen.
Q. What was the purpose of that conversation?
A. He said he had a horse with a wire wrapped around its left rear leg and he thought it needed some clinical attention.
Q. All right. Did he make an appointment?
A. Yes.
Q. And when was that appointment scheduled for?
A. Well, he made the appointment to come in on a late morning, early afternoon, and then he called back at ten seventeen and said that he had to cancel it, he had truck trouble. He called again at eleven thirty-five to reinstate the appointment and then he called at 12:03 to say he was having legal trouble and he wasn’t going to be able to bring the horse over.
Q. All right. Did he give you any indication what the legal trouble was?
A. No, not at that time.
Q. All right. What is the next contact you had then?
A. On this horse?
Q. Yes.
A. Okay. On March twenty-—let me see. March twentieth an Officer Wheaton called and I didn’t personally talk to him and I really don’t know what the nature of the call was. Matt had made an appointment for two horses to be examined on March twenty-first.
Q. Al right. Do you know when he made that appointment?
A. No, I didn’t. I didn’t record that.
Q. Obviously sometime after March-—
A. It was, March twenty-first because that’s when I was going to examine them, I’m assuming it would be on the twentieth, but I really don’t, that phone conversation wasn’t recorded.
Q. But that appointment as far as making it would have been some time after March sixteenth.
A. Oh, yeah.
Q. And would have had to have been before March tweny-first.
A. Yes.
Q. All right. And that appointment was set for the twenty-first?
A. Yes.
Q. And that was to examine two horses.
A. Mm-Hmm.
Q. And did you know the nature of the injuries of the two horses?
A. One of them was the wire cut and the other one was just another horse to look at. Like I say, I didn’t take the phone call.
Q. All right. Was that appointment followed through with on the twenty-first?
A. No.
Q. Why not?
A. It was canceled and we didn’t record, let me see.
Q. Was it canceled by Mr. Mercier?
A. I’m under the impression it was canceled by the Animal Control officer.
Q. All right. So after the twenty-first then, do we go a ways before you actually have contact with the horse with the wire cut?
A. The next time was April eighteenth.
Q. What happened on that date?
A. Matt called and wanted to know if I could look, take a look at this filly with the wire cut, that Dr. Hammer had examined it and had taken the wire off the leg and I believe X-rayed it to make sure there was no more wire on it. I called Dr. Hammer to make sure that it was something we could handle at the clinic and he assured me that our office should be able to take care of it.
Q. Okay. So were arrangements made then for you to see and treat that horse?
A. Yes.
Q. And when did that happen?
A. The filly was presented on April nineteenth.
Q. Out at your place.
A. At the clinic, yes.
Q. All right. Tell me what happened after that horse arrived?
A. The horse was walking basically sound. She had a large scar of exuberant granulation tissue circling the left rear leg.
Q. Let me stop you just for one second. She had a large scar with exuberant granulation tissue. What does that mean?
A. It’s scar tissue and proud flesh. It’s a granular type tissue that horses fill in on cuts and damaged area. It fills them in, it’s a safety mechanism for the horse.
Q. Part of the healing process.
A. Yeah. It’s a scarring.
Q. Okay. Continue please.
A. Okay. We looked at the horse. She was bright and alert. She had retained a lot of her winter coat. She, examined the leg, like I say, she was walking on it, she had sufficient effusion of both hocks which is swelling in the hocks, and so we gave her, we radiographed her first-—
Q. Okay. And before that, did you make some general impressions of that, the condition of the horse?
A. She was, I scored her about a three to three point five body---
Q. That’s the body condition score?
A. Body condition.
Q. All right.
A. She wasn’t, she wasn’t what I would consider starved. She looked, she had long hair and she looked like a horse that had wintered outside with, on hay with a limited amount of grain.
Q. All right. Not emaciated?
A. No.
Q. Bright and responsive to examination?
A. Yeah, mm-Hmm.
Q. All right. And you said the horse was radiographed. Is that essentially an X-ray?
A. X-rayed.
Q. All right. Tell me about those findings.
A. We found that there was no wire anymore around the leg as Dr. Hammer had X-rayed and but because the hocks were so swollen we took X-rays of the hocks and found a small OCD in the right hock—-
Q. Which part of the horse is the hock?
A. It’s the, it’s the back leg. It would be the second joint down or the second joint up from the, either the ankle or the stifle.
Q. Okay.
A. It’s the major bending joint in the leg.
Q. What would be an knee or an elbow to us?
A. Yeah.
Q. All right. And then you said you found a small OCD was noted in the right hock?
A. Yes.
Q. OCD being what?
A. OCD is a birth defect. It’s a piece of bone that doesn’t normally get enough blood supply, and instead of attaching down where it belongs, it will, it’s attached but it’s not flush with the other tissue. It kind of like grows on a little stalk. And they take them out because they’re irritating to the joint. It’s like walking around with a stone in your shoe.
Q. And OCD stands for what?
A. Osteochondritis dessicants.
Q. Okay. Is that, do some people refer to that as osteochondrosis? Is that the same thing?
A. No. Osteochondrosis would be more like a degenerative joint.
Q. Okay.
THE COURT: Would you spell that OCD?
THE WITNESS: Oh, can I spell it?
THE COURT: Yes.
THE WITNESS: Good question. Let me…
THE COURT: You can cheat and write it down if you have to.
THE WITNESS: O-S-T-E-O-C-O-N-D-R-I-T-I-S, D-E-S-E-C-A-N-S. It’s just the way it sounds.
THE COURT: Just the way it sounds.
THE WITNESS: Mm-Hmm.
THE COURT: Thank you, Doctor. Mr. Dungan?
BY MR. DUNGAN:
Q. All right. Tell me about the radiograph process and what your findings were.
A. Okay. Because of the fusion in the hocks, we X-rayed him and found a small OCD in the right hock. The joint was, wasn’t hot or really sore, it’s a fairly common condition in colts. We send a lot of them out for surgery. It’s an irritation that goes on partially because of this birth defect, and so what they do is they will artheroscopically go in, take the piece out, and then usually the swelling will go down in a few months.
Q. Is that anything you had to do in this particular case?
A. No, not at this stage.
Q. It wasn’t that bad.
A. No, the horse wasn’t lame.
Q. And then your treatment continued of the wound then?
A. Yeah, we gave her a general anesthetic because we wanted to get a real good look at her leg, and we ulrasounded the tendons, the extensor tendon had been severed by the wire, the flexor tendon had been cut, but not completely through, and the deep digital flexor and the suspensor were normal.
Q. All right. So what did you do as a result of that treatment-wise?
A. Basically we didn’t really do much of anything. We just cleaned up some of the edges of the wound and wrapped it and put a temporary splint on it because the extensor tendon had been cut, so when the horse was getting up after anesthetic I didn’t want him to bend over his leg and break something. So we just cut a piece of PCV pipe and taped it to the back of his leg so his leg was stiff until he could stand up and, and, well, actually we sent him home with the pipe so the trailer ride wouldn’t bother him.
Q. So there just wasn’t that much treatment necessary?
A. No. It had already healed. I mean, it had healed as much as it’ going to. It left kind of an ugly scar.
Q. Yeah.
A. But there was really nothing medically more to do for it.
Q. Well, if that’s true then, do you know why it was brought to you in the first place?
A. I assume to be examined.
Q. Okay.
A. And see if there was anything we could do.
Q. All right. After you had applied the splint and finished your treatment then, did the horse stay with you or was it then released?
A. No. It was released to the officer and with written instructions what to, what to treat the horse with.
Q. Which was what?
A. We sent bandages home and salves and put it on antibiotics too.
Q. All right. And your prognosis for recovery at that time was what?
A. The horse should recover and be functionally sound. The scar is always going to be there and it kind of deforms her leg, but that’s, as far as based on the ultrasound and based on the X-rays, the horse should be functionally sound.
Q. Okay. And you had made a comment too that it was unfortunate the wound was unable to be attended to more promptly.
A. Yes.
Q. What do you mean by that?
A. Well, if it would have been attended to when it was found or as soon after found as possible, you could put a pressure wrap on it and instead of having this big lump out the back of the leg which is scar tissue and fibrin, the horse could have been made to heal up with a very limited scar. You’d still have a scar, but it wouldn’t have a big kind of an ugly looking leg.
Q. All right. Were you given any information as to what treatment that horse had received before it came to you?
A. Just that Dr. Hammer when I talked to him he said he had, he had X-rayed it and, or taken the wire off of it and I think he went back the next day or several days later and X-rayed it.
Q. Okay.
A. At least that was the impression I got.
Q. All right.
A. Whether he did it all at the same time I really don’t know.
Q. And when that horse came to you, could you tell if it had received treatment or not before it got to you?
A. There was no wrap on the leg when I looked at it, but it, it had filled in very typically the way a wire cut like that fills in, because the wire is wrapped around the leg so it cuts off some of the circulation and then it just starts burying itself in the leg. So it’s a, it’s not an uncommon injury.
Q. Should it have had a wrap on it before it came to you?
A. By this stage it didn’t make any difference.
Q. Okay. What do you mean by that?
A. Well, it had healed as much as it’s going to heal as far as scar tissue. The wrap, if it would have been wrapped when it was first injured or shortly afterwards, especially after the wire would have been taken out, you could have healed more cosmetically.
Q. All right. So your concerns with treating it sooner had more to do with cosmetics than how the horse is going to ultimately heal up and become functional again?
A. Yeah. It, the tendon, you’re not going to make any difference on the tendon being cut and the deep digital flexor tendon being, it wasn’t completely severed, but partially severed, those things are going to heal, but if a pressure wrap would have been kept on it and a tight bandage for several weeks or a month, you get a much better cosmetic look.
MR. DUNGAN: All right. I don’t have any other questions, Your Honor. Thank you.
THE COURT: Doctor, Miss Lamp will have some questions for you, okay?
Miss Lamp?
MS. LAMP: Thank you.
CROSS EXAMINATION (at 12:46 p.m.)
BY MS. LAMP:
Q. Dr. Irving?
A. Yes.
Q. How are you?
A. Just fine. How are you?
Q. Good. Is it true that OCD also can be caused or contributed to as a result of diet?
A. There is a study, there have been some studies done that, Buckeye Feeds did one of the biggest studies that showed, they took a hundred horses and raised them up on various rations and they found that horses that were kept on a high zinc content and increased the copper, had a lower percentage of OCDs. It didn’t eliminate it, but it does have an effect on it.
Q. Okay. So diet does play a role with OCD.
A. Yes.
Q. And let me ask you now, is OCD a condition that a horse is born with or is it something that they develop after birth?
A. It’s a developmental usually condition or it’s considered to be a developmental condition.
Q. And how old was this horse, if you remember?
A. I believe he was two. She was two.
Q. She, okay. And isn’t it important in that OCD and diet relationship especially when the horse is at such a young age to make sure that the diet is adequate?
A. Yes. That’s when they’re developing.
MS. LAMP: Thank you, Doctor. Nothing further.
THE COURT: Mr. Dungan?
REDIRECT EXAMINATION(At 12:47 p.m.)
BY MR. DUNGAN:
Q. Did you not say OCD was a birth defect?
A. It usually starts with a birth defect, but again, it can, some of them are born with them, but a lot of times they develop them.
MR. DUNGAN: All right. Thank you, Your Honor. I have no more questions.
THE COURT: Doctor, let’s go back to your information there concerning telephone calls and such like that. March sixteenth at nine something you receive a telephone call from Matt Mercier? Do you have it there?
THE WITNESS: Yes. March sixteenth, nine fourteen.
THE
COURT: Nine fourteen. And then a second call at ten fifteen
canceling-—well, when did he, what day was he to bring the horse in on March
sixteenth? That day?
THE WITNESS: That day.
THE COURT: Okay. At what time?
THE WITNESS: They erased it off the scheduling book after he called, so…
THE COURT: And then at ten fifteen, that’s when it was canceled?
THE WITNESS: Mm-Hmm, yes.
THE COURT: Truck trouble?
THE WITNESS: Ten seventeen, yes.
THE COURT: Then there’s another call before the 12:03 call. Is that what I understood?
THE WITNESS: Yes. He called back at eleven thirty-five to see if he could reinstate the appointment so I assumed he’d got his truck taken care or, and then he called at 12:03 and all he said was he was having some legal problems.
THE COURT: And the next contact is on March twentieth, telephone call from an Officer Wheaton?
THE WITNESS: Mm-Hmm. Yes.
THE COURT: That’s not a person that you talked to though I understand.
THE WITNESS: No.
THE COURT: And then, but there had been, when did Mr. Mercier reschedule to the twenty-first? On the sixteenth?
THE WITNESS: No. He called it was someplace in the nineteenth, nineteenth or the twentieth, somewhere in there. Somehow that call, because we record all our phone calls at the office.
THE COURT: Okay.
THE WITNESS: When somebody calls.
THE COURT: Then on March twenty-first he called, or the appointment was canceled.
THE WITNESS: What I was told by the receptionist was that on March twentieth an Officer Wheaton called at three twenty-six, and an Officer Dutton called at four fourteen, and I was just told that they cancelled, they were told to cancel the appointment for Mr. Mercier to be made for two horses on March twenty-first.
THE COURT: So your impression is from your staff.
THE WITNESS: Yes. The Animal Control had called and canceled the appointment. I didn’t talk to them myself.
THE COURT: Okay. You mentioned also that had this been wrapped, the wire injury, had that been wrapped for several weeks or a month with a tight wrap.
THE WITNESS: Mm-Hmm.
THE COURT: Cosmetically it would have looked better. Is that right?
THE WITNESS: Yeah. You wouldn’t have the scar tissue bulging out.
THE COURT: Are you saying then that this injury was weeks, months old?
THE WITNESS: Yes.
THE COURT: Are you able to give us a time?
THE WITNESS: Well, based on the way the scar tissue looked and the way it had healed, it had to be at least a month old.
THE COURT: Oh, from the time you saw it from Dr. Hammer then. Well, from the time you got it, it happened within a month before that. Is that what you’re saying?
THE WITNESS: Yeah, I would say at least, because it had completely filled in with granulation tissue.
THE COURT: How long-—you mentioned before it’s not unusual for a horse to have the wire and then it goes into the skin. Is that right?
THE WITNESS: Yes.
THE COURT: How long does it take then for that process to get to the bone?
THE WITNESS: Well, if you don’t take them out they’ll just keep tightening up. And what happens in the ones we usually see are situations like this where the horse will get a wire, usually a fine wire like an electric wire wrapped around their leg. The owner sees them dragging a piece of wire, so thy take that off, not realizing that the wire has been completely wrapped around it and then it will start to twist and so they’ll break the wire off or pull the wire off thinking everything’s fine and then the leg keeps swelling and they’ll get a draining sore because the wire just keeps working into the leg.
THE COURT: And does this, would this be, can then begin to affect how the horse acts?
THE WITNESS: Well, usually they’ll start to limp.
THE COURT: Noticeably?
THE WITNESS: Yeah. The wire will start cutting off the circulation and you’ll get a raw draining sore, usually surrounding the leg, all the way around the leg.
THE COURT: And blood as well?
THE WITNESS: They don’t bleed that much because they’re slowly cutting the blood supply off.
THE COURT: Okay. Is this painful to the horse?
THE WITNESS: I don’t know. Some of them you’ll see are real lame, some of them aren’t lame hardly at all, because basically the leg is numb.
THE COURT: Okay.
THE WITNESS: It’s like putting a rubber band around your wrist and leaving it on. It will eventually cut into your wrist.
THE COURT: So lameness would be one indication.
THE WITNESS: Lameness would be—-initially there would be reasonable lameness. As the wire embeds in. Some of them, they’re just, they’re usually a little lame, but they’re not like three legged lame, they’re sore.
THE COURT: All right.
THE WITNESS: You should be able to tell that they’re lame.
THE COURT: All right, thank you. Mr. Dungan, anything further?
MR. DUNGAN: No, sir.
THE COURT: Miss Lamp, anything?
MS. LAMP: I have a few questions, Your Honor, if I may.
THE COURT: Sure.
RECROSS EXAMINATION(At 12:53 p.m.)
BY MS. LAMP:
Q. Dr. Irving, who took your calls then? What is your secretary’s name?
A. Dawn Crittenden.
Q. Does she take all of the calls?
A. Well, when she’s there. I mean, most of the girls work like a four day week.
Q. Do you know precisely who took the calls regarding Animal Control and Matthew Mercier? I mean, are you able to assign those to particular secretaries?
A. I might be able to because we copied the phone book. I would say the first two are from Dawn because it looks like her writing and it was on a Friday and she works on a Friday.
Q. Okay. And then the next, was it two more? I’m trying to read my notes here.
A. Oh.
Q. There was a call…
A. It was nine fourteen on Friday, ten seventeen on Friday, eleven thirty-five on Friday, and the 12:03, it’s Matt canceled again is all that’s written down.
Q. Do you know who took that 12:03?
A. I would base it on the handwriting that it was probably Dawn.
Q. So as far as you can tell it appears that Dawn took all four of those calls.
A. Yeah.
Q. Okay. And do you still have those recorded conversations?
A. All it is is, I think you got a copy of that.
Q. What I misunder-—I misunderstood that you recorded all the phone calls in your office. I thought you meant you audio, you do an audio recording.
A. Oh, no, no.
Q. A handwritten recording.
A. We just call, so and so called at such and such a time and usually a few notes as to what the call was about.
Q. Had Mr. Mercier scheduled any appointments prior to March sixteenth to care for this horse or observe it?
A. We don’t have any record of that.
Q. Okay. And as I understand, if he had called you would have a record of it. Would that be fair?
A. More than likely, unless somebody forgot to write them down, but yeah, usually.
Q. And as I understand it, you don’t do farm calls. Is that correct?
A. I do some, but I don’t go that far.
Q.
Okay. So it was due to the
distance of the farm being in
A. Yes.
Q. Okay. And based on your observation of the OCD that you said that was present, were you able to date when that OCD occurred? Like whether it was present at birth or…
A. No.
Q. Is there a way to do that that you know of?
A. No.
Q. Okay.
A. They usually don’t find them until they’re, they’re, most of them show up when they’re in training.
Q. Okay. Now, the other question I have for you is, as I understand it from your testimony you did not have the opportunity to examine the horse when the wire was in the leg. Is that correct?
A. Yes.
MS. LAMP: Thank you, Doctor.
THE COURT: Mr. Dungan?
MR. DUNGAN: No, sir.
THE COURT: All right, Doctor. Thank you very much for your time and patience with us. You’re excused and watch your step as you step down.
(At 12:56 p.m. witness excused)
THE COURT: Mr. Dungan?
MR. DUNGAN: Your Honor, I have two witnesses who are left in the hallway and I had a third one scheduled for today who told me that she can get here sometime between two and there o’clock. Based on you having to stop at two thirty, would it be all right for Mr. Mercier to step out in the hallway and call that person off who’s coming from out-—she’s a vet student at MSU and I think if we call her now we can probably prevent her coming down.
THE COURT: Okay. The reason I suspected that was a difficult time frame was because of Mr. Kobrin and his hearing. I don’t know if that’s going to take a half hour or…
MR. DUNGAN: Yes, we do.
THE WITNESS: Two hours. You know, I just want to be fair--
MR. DUNGAN: Right.
THE COURT: To Mr. Kobrin because that’s been scheduled for quite some time and it’s a drunk driving with a jury trial Friday and it needs to get done. I guess I’ll leave that up to you as far as--how long have your folks been sitting in the hallway? She can’t be here till between two and three anyway?
MR. DUNGAN: Exactly. She would not have, she’d arrive sometime between two and three o’clock.
THE COURT: She can’t be here at two?
MR. DUNGAN: No, no.
THE COURT: Do you know why?
MR. DUNGAN: Class schedule at M-—she’s a vet student at MSU with a class schedule and a commute.
THE COURT: Okay.
MR. DUNGAN: Can he step out and call her?
THE COURT: And you’ve got another one to come in?
MR. DUNGAN: Yes, I’ve got two more.