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Declaration by: Hormez Guard, Forensic Pathologist
I, HORMEZ GUARD, declare as follows:
1. I am not a party in this action and I am competent to testify as a witness as set forth herein.
2. I am a Fulbright International Scholar and I have conducted research
with professors at Harvard University Boston, Massachusetts. I was involved with research at Dartmouth University in Hanover, New Hampshire and spent four years in pathology internship at Rockford, Illinois. Thereafter, I restricted my practice to forensic pathology. I joined the Medical Examiners Office at Baltimore, Maryland, and spent over eight years with that office as a medical examiner. I was an associate professor with the University of Maryland and also taught at John Hopkins University at Baltimore, Maryland. While in Baltimore, my entire practice was restricted to forensic pathology.
3. I moved to San Diego in 1983 and began working for the San Diego County Coroner's Office and specifically for the Coroner, David J. Stark. I continued to work for that office through October 1984. At that time I was a physician duly licensed to practice medicine in the State of California and certified by the American Board of Pathology in Anatomic Pathology and in Forensic Pathology.
4. In order to become a board certified forensic pathologist, a doctor must have specific mandated pathology training and forensic training and then pass a 4-day specialty board exam. The role and training of a board certified clinical pathologist is a different medical specialization from a board certified forensic pathologist, the latter being especially trained in forensic disciplines to determine trauma verses accidental factors, among other specialties. A clinical pathologist studies tissues and similar samples to determine causes of medical maladies and diseases.
5. In 1983, the Coroner for San Diego County, David J. Stark, was a lay coroner and mortician. I recall that autopsies at the San Diego County Coroner's Office were performed on an “on call” basis and there were four or five doctors available to perform autopsies at that time. I further recall that I was paid $100 per autopsy performed for the County but there was no specific contract. I was employed on an on-call, per autopsy basis.
6. During the time I worked as a forensic pathologist for the San Diego County Coroner's Office, I never participated in the child abuse committee meetings to evaluate a child's death by making a group determination as to cause and manner of death.
7. A Coroner's Office should be an independent agency. A forensic pathologist should go over the decedent's history and decide whether to perform the autopsy.
8. I understand that Dr. Roger A. Williams, a Children's Hospital pathologist saw the then-alive patient, Phillip Buell, in Children's Hospital. It was an errant choice for the Coroner's Office to utilize a Children's Hospital (where the decedent was treated before his death) doctor/clinical pathologist to subsequently autopsy Phillip Buell. There was a potential conflict of interest if there was any independent hospital error (i.e., hospital negligence may have contributed to the death of the decedent) and due to the fact that a not-insignificant portion of Children's Hospital funding was secured owing to its mission to determine child abuse.
9. I have reviewed my attached declaration executed under penalty of perjury on February 5, 1989, in a case entitled, Carol Phinney v. County of San Diego, David L. Chadwick, et al, Superior Court Case No. N30481. I reaffirm the statements made by me under penalty of perjury in my 1989 declaration.
10. In the Phinney case, I was consulted as an expert forensic pathologist to review an autopsy and clinical records in an underlying criminal action entitled People v. Phinney, Municipal Court Case No. H11140 and Superior Court Case No. CRN 11042.
11. I recall from my 1989 declaration that a forensic neuropathologist, Dr., Richard Lindenberg also reviewed materials for the Phinney case. There were irregularities in the autopsy of Travis Phinney, performed by Dr. R. Steve Phillips, another Children's Hospital pathologist. I recall that Dr. Phillips lacked forensic training and objectivity to competently perform the autopsy of Travis Phinney. I also recall that Travis' medical history was ignored as irrelevant.
12. Additionally, I recall that the initial autopsy findings in Travis Phinney’s case was changed from an accidental death scenario to a non accidental death between October 10, 1984 and February 7, 1985. I further recall that Ms. Phinney was acquitted by the jury in her criminal trial and I believe the Superior Court judge thereafter issued a factual innocence finding as to Ms. Phinney.
13. I have reviewed Dr. Roger A. Williams, curriculum vitae (C.V.) in connection with an autopsy he performed on Phillip A. Buell on April 29, 1983. Similar to the Phinney case, Dr. Williams does not appear to have any significant forensic training or experience. According to his C.V., he was not a board certified forensic pathologist.
14. An autopsy should be performed by an unbiased, objective examination of the decedent in determining cause of death. At that time, Dr. Williams worked with or under Children's Hospital medical director, Dr. David L. Chadwick. Dr. Chadwick would tell the coroner, David Stark, what to do, and then Stark would decide the outcome. Dr. Chadwick was inclined to allege virtually any child's death as intentional abuse.
15. In performing the autopsy on Phillip Buell, according to the autopsy report, Dr. Williams took too few samples (in terms of quantity and selection/variety). Also, it was very unusual for Dr. Williams to dispose of a lot of the forensic samples taken from the decedent before any criminal trial.
16. I have been informed that Ken Marsh was prosecuted for Phillip Buell's death before a final coroner's report or death certificate was issued by the Coroner's Office. In my opinion, it was very irregular to prosecute a person for a criminal homicide with an equivocal death and an incomplete death certificate. It should not have been done. In my opinion, something was amiss here because the death certificate was issued as “pending” and took three months before it was finally issued.
17. During the time I worked for the San Diego County Coroner's Office, the coroner, David Stark, made all the decisions as to which bodies to autopsy; this was the selection process. The final diagnosis and decision (cause of death) was made by David Stark. I might make a decision an autopsy was required, but the coroner, David Stark, would change it. For example, I performed an autopsy involving an amputation by a rail vehicle of a decedent's legs. It was my opinion that the death was a homicide owing to the forensic evidence and factors. However, David Stark ruled the death an accident because he was pressured to make a finding by outside sources. In that case, David Stark told me, “you just say it (death) was caused by the leg injuries.” The decision made as to a cause of death determination was frequently influenced by causes or sources other than the simple finding of facts specifically associated with the cause of death.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed at San Diego, California on February, 2002.
By: HORMEZ GUARD
