3.CT Scan Production Motion Taken Under Consideration
22 linesTHE COURT: Okay. So why don't you address your motion on the CT. I don't know that it's been responded to formally.
MS. CLARKE: It hasn't. Your Honor, our position on the CT scans is they're not relevant to anything Dr. Giedd is going to testify about so there's no need to produce them. We did produce, however, in discovery, Mr. Tsarnaev's medical records from BI out of an anticipation that we --
THE COURT: The original admission?
MS. CLARKE: Yes. The April admission, yes.
So they have those, and I guess that's why they're asking for the CT scans.
MR. WEINREB: So, your Honor, we actually independently obtained from Beth Israel Deaconess Medical Center all the defendant's medical records. They were obtained via a court order issued by the magistrate judge in this case when the grand jury was examining the case.
But Beth Israel has taken the position that CT films do not fall within the comprehensive scope of her order; that they are protected health information and yet somehow they're not medical records. I'm not exactly sure how they came up with that determination.
But they are perfectly willing to provide them so long as they are essentially protected from any kind of attack under HIPAA.
THE COURT: Well, assuming that Dr. Giedd will not give an individualized assessment of the defendant, why are they relevant?
MR. WEINREB: On that matter, with the Court's permission, I'll defer that to Mr. Mellin.
MR. MELLIN: Well, your Honor, it depends on what they show and they don't show. I mean, I don't think it's fair for the defense to argue that generally an individual has this type of development if Dr. Aguirre is able to look at that and say, That's not appropriate in this case; in fact, in this case the defendant has this development.
THE COURT: That's your expert you're referring to?
MR. MELLIN: Correct.
THE COURT: Ms. Clarke?
MS. CLARKE: Well, I think it's pretty well understood that imaging at a given period of time is imaging at a given period of time and it has nothing to do with the kind of testimony Dr. Giedd will give about the maturation of the brain and adolescence. But, you know, if the Court orders the production of the CT scans, we have a copy and would provide it. We don't think it's relevant.
THE COURT: Well, I guess -- so let me see if I'm hearing that correctly. You have an objection to the perhaps relevance as evidence -- it's an evidentiary question -- but will not object to the discovery question about the looking at it.
MS. CLARKE: Yes.
THE COURT: In other words, you would provide it preserving your objection to its admission or use?
MS. CLARKE: Well, we object to providing it and we also preserve our objection to its admission.
THE COURT: Okay. I'll think about it.
MS. PELLEGRINI: Your Honor, if I may, actually, I've spoken to Dr. Aguirre, and while it's not yet clear that we would admit it as -- what he feels in order to be fully prepared to give his testimony is to review these records. So it's part of his preparation, in any event.
THE COURT: Okay. And who's the expert?
MS. PELLEGRINI: Geoffrey Aguirre, A-G-U-I-R-R-E.
THE COURT: And where is he?
MR. MELLIN: University of Pennsylvania.