Exhibit 35

Case 5:09-cv-11480-JCO-MKM ECF No. 197-34, PageID.3810 Filed 03/17/14 Page 1 of 12
JEFFREY D. HO, M.D. March 3, 2010

RON FERNICOLA & ASSOCIATES

1

 SUPERIOR COURT OF THE STATE OF CALIFORNIA

 IN AND FOR THE COUNTY OF SANTA CRUZ

DAVID BUTLER, as Conservator of )

the Person and Estate of Steven )

Alan Butler, )

 )

 Plaintiffs, ) 

 )

 vs. ) CV 161436

 )

TASER INTERNATIONAL, INC., )

PROFORCE MARKETING, INC., and )

DOES 1 through 20, inclusive, )

 )

 Defendants. )

___________________________________) 

 DEPOSITION OF JEFFREY D. HO, M.D.

 Wednesday, March 3, 2010 

 5711 West Century Boulevard, 2nd Floor 

 Los Angeles, California

 8:16 a.m. - 11:46 a.m. 

RON FERNICOLA & ASSOCIATES

CERTIFIED SHORTHAND REPORTERS

REPORTED BY: SHARON CAHN, CSR NO. 6210

27720 Avenue Scott, Suite 140

Valencia, California 91355

(800) 377-3669

FILE NO. 10181

Case 5:09-cv-11480-JCO-MKM ECF No. 197-34, PageID.3811 Filed 03/17/14 Page 2 of 12
JEFFREY D. HO, M.D. March 3, 2010

RON FERNICOLA & ASSOCIATES

2

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

 IN AND FOR THE COUNTY OF SANTA CRUZ

2

3

4

5

6 DAVID BUTLER, as Conservator of )

the Person and Estate of Steven )

7 Alan Butler, )

 )

8 Plaintiffs, ) 

 )

9 vs. ) CV 161436

 )

10 TASER INTERNATIONAL, INC., )

PROFORCE MARKETING, INC., and )

11 DOES 1 through 20, inclusive, )

 )

12 Defendants. )

___________________________________) 

13

14

15

16

17 Deposition of JEFFREY D. HO, M.D., taken before 

18 Sharon Cahn, CSR No. 6210, a Certified Shorthand Reporter 

19 for the State of California, with principal office in the 

20 County of Orange, commencing at 8:16 a.m., Wednesday, 

21 March 3, 2010, in the conference room at the Hilton Hotel 

22 located at 5711 West Century Boulevard, San Lorenzo 

23 Conference Room C, 2nd Floor, Los Angeles, California.

24

25

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09:52 1 go through that. And if there's anything left at the end, 

09:52 2 we'll -- we'll try to capture that. 

09:52 3 A. Okay. What page are you on? 

09:52 4 Q. Well, I'd like to start with Paragraph 8. 

09:52 5 A. Paragraph 8? 

09:52 6 Q. Yes. It was on Page 2. 

09:52 7 A. Okay.

09:52 8 Q. "I understand that the Taser X26 ECD 

09:52 9 involved in this matter was distributed or sold in July 

09:52 10 2006." That was also the time that the officer received 

09:52 11 his updated training with Version 13?

09:52 12 A. I'm aware of that. 

09:53 13 Q. "As of that time, no peer-reviewed published 

09:53 14 scientific or medical literature concluded that the 

09:53 15 direct-delivered electrical charge of Taser ECDs cause 

09:53 16 ventricular fibrillation or life-threatening cardiac 

09:53 17 dysrhythmia in humans." 

09:53 18 Now, at that time, there was a letter 

09:53 19 published in the New England Journal of Medicine that 

09:53 20 appeared to link a ventricular fibrillation in a 

09:53 21 14-year-old boy to a taser application; is that correct? 

09:53 22 A. I'm aware of that, yes. 

09:53 23 MR. BURTON: Okay. And Let me just mark the 

09:53 24 letter -- I've got it here somewhere -- Exhibit 3. 

09:54 25 (Plaintiffs' Exhibit 3 was 

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JEFFREY D. HO, M.D. March 3, 2010

RON FERNICOLA & ASSOCIATES

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09:54 1 marked for identification by 

09:54 2 the Certified Shorthand Reporter.)

09:54 3 BY MR. BURTON:

09:54 4 Q. Now, were you a consultant for Taser 

09:54 5 International when this letter was published? 

09:54 6 A. I would say at this point, yes. 

09:54 7 Q. Were you a member of the Scientific and 

09:54 8 Medical Advisory Board?

09:54 9 A. No.

09:54 10 Q. Have you ever been a member of the 

09:54 11 Scientific and Medical Advisory Board?

09:54 12 A. No.

09:54 13 Q. But do -- do you interact with it?

09:54 14 A. I do.

09:54 15 Q. Is there a reason why you're not on the 

09:54 16 Board?

09:54 17 A. Simply because I think it represents a 

09:54 18 conflict of interest that I don't want to enter into. 

09:54 19 Q. Now, when this came out, were you asked to 

09:54 20 investigate it -- 

09:54 21 A. I was asked -- 

09:54 22 Q. -- the case? 

09:54 23 A. Yes, I was.

09:54 24 Q. Was this the first you had learned about 

09:54 25 that -- this incident involving this young man, was when 

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09:55 1 it was published in the New England Journal of Medicine?

09:55 2 A. I don't believe so. I believe I knew about 

09:55 3 it before this. 

09:55 4 Q. And how -- how did you know about it?

09:55 5 A. I believe that -- now this is going back 

09:55 6 five-plus years, so my memory of the dates may not be 100 

09:55 7 percent accurate. But my recollection was that the 

09:55 8 incident that we're talking about occurred, and I was 

09:55 9 asked to go to speak with the authorities in Chicago where 

09:55 10 this case happened and see if they would talk to me about 

09:55 11 the case, provide information, allow me to see some of the 

09:55 12 records. 

09:55 13 Q. Well, this incident occurred, I think, on -- 

09:55 14 I have the date right here -- February 7th, 2005. 

09:55 15 A. Okay. 

09:55 16 Q. The letter was published September 1st, 

09:55 17 2005 -- 

09:55 18 A. Okay. 

09:56 19 Q. -- according to the documents I have. 

09:56 20 So is it your recollection that you found 

09:56 21 out about this incident involving this young man -- 

09:56 22 obviously, after it happened, which would have been 

09:56 23 February 7, 2005 -- but before you learned there was going 

09:56 24 to be a publication of this case in the New England 

09:56 25 Journal of Medicine? 

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10:02 1 Dr. Kim and Dr. Franklin were. This had not, to my 

10:02 2 knowledge, come out or was in press. So I would have had 

10:02 3 no reason to talk to them at that point. 

10:02 4 Q. Well, were the documents that you looked at, 

10:02 5 did they include the ER docs?

10:02 6 A. I don't believe so, no. 

10:02 7 Q. Well, what documents did you review?

10:02 8 A. I believe there was an -- well, again, this 

10:02 9 is five years ago. I believe there was an EMS Run Sheet 

10:02 10 that we were allowed to look at. And I'm sure -- I mean, 

10:02 11 there must have been other documents, because I'm sure it 

10:02 12 wasn't just a single piece of paper we were allowed access 

10:03 13 to. But, again, I remember it being -- they were not very 

10:03 14 forthcoming in providing us with a lot of information to 

10:03 15 just look over. 

10:03 16 Q. Was a summary or a report prepared at that 

10:03 17 time by you and/or Dr. Kroll about what you learned about 

10:03 18 this incident?

10:03 19 A. Collectively, no. I don't know what 

10:03 20 Dr. Kroll did. I did not put down a summary. I know I 

10:03 21 was asked to, I think by phone call at some point, just 

10:03 22 talk about what my impressions were at that time. 

10:03 23 Q. A phone call with who?

10:03 24 A. Again, five years ago, I couldn't tell you. 

10:03 25 I'm assuming it was probably Mark Johnson, again, just 

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10:19 1 rhythm, then.

10:19 2 Q. It's his first EKG, documented EKG rhythm; 

10:20 3 correct?

10:20 4 A. It's the first one that is recorded there. 

10:20 5 But his first pulse was 100, which is not consistent with 

10:20 6 ventricular fibrillation.

10:20 7 Q. Well, where does this 23 minutes from the 

10:20 8 taser application to the ventricular fibrillation 

10:20 9 indicated in the report, where does that come from?

10:20 10 A. Again, I couldn't tell you where it comes 

10:20 11 from. I don't recognize this report. And as I'm sitting 

10:20 12 here today, as I told you, this was a very unstructured 

10:20 13 meeting with Chicago City officials in some capacity. For 

10:20 14 all I know, we asked questions and they gave us times off 

10:20 15 whatever documents they had. They may not have put this 

10:20 16 document in front of us. I don't know. 

10:20 17 We were -- we walked out of that room with 

10:20 18 what we felt was the best information given to us that we 

10:20 19 could make -- make an assessment of the case on. 

10:21 20 Q. It says, "Paramedics on the scene -- 

10:21 21 Paramedics on the scene" -- this is back to Exhibit 5, 

10:21 22 Dr. Kroll's letter -- "reported the subject was awake and 

10:21 23 responsive and had normal pulse and lung sounds 

10:21 24 immediately after the taser application." 

10:21 25 Did you see something that said that the 

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JEFFREY D. HO, M.D. March 3, 2010

RON FERNICOLA & ASSOCIATES

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10:24 1 ambulance and found him to be in ventricular fibrillation. 

10:24 2 And I think that's still true today. 

10:24 3 Q. Okay. And that was his initial rhythm that 

10:24 4 was on the EKG?

10:24 5 A. That was his initial rhythm on a monitor 

10:24 6 that was applied at least two minutes after -- you know, 

10:24 7 at least two minutes after the crew was on scene. 

10:24 8 Q. Now, do you think that this young man had a 

10:24 9 cardiac arrest because of excited delirium?

10:24 10 A. I don't know enough about the -- I don't 

10:24 11 know enough about the events ahead of time to say on that, 

10:24 12 and I don't know all of his medical history and things 

10:25 13 like that. So it would be very difficult for me to say 

10:25 14 whether or not this was excited delirium. 

10:25 15 I do think that, you know, it's obvious that 

10:25 16 he had a cardiac arrest. It doesn't sound like this was 

10:25 17 electrically induced. It sounds like it could be from any 

10:25 18 number of different causes. I just need to know more 

10:25 19 about his history. 

10:25 20 Q. Well, it says here in the next -- the bottom 

10:25 21 paragraph, "The rhythm strips shown in Dr. Kim and 

10:25 22 Franklin's letter does, indeed, show an apparent 

10:25 23 successful defibrillation. What should have been made 

10:25 24 clear, however, was the fact that this strip was recorded 

10:25 25 approximately 23 minutes after taser application and 

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10:25 1 9 minutes into the resuscitative attempt after 3 previous 

10:25 2 shocks. The initial medical problem cannot be diagnosed 

10:25 3 from the data provided. In fact, the EMS record notes an 

10:25 4 idioventricular pulseless rhythm, which may have been the 

10:25 5 cause of the initial collapse." 

10:25 6 In fact, the EMS records show that the 

10:25 7 initial rhythm was ventricular fibrillation, not pulseless 

10:26 8 idioventricular rhythm; correct? 

10:26 9 A. I would agree, it doesn't say "pulseless 

10:26 10 idioventricular rhythm". But you keep saying the initial 

10:26 11 rhythm. And I'll keep saying that ventricular 

10:26 12 fibrillation was not the initial rhythm when they record a 

10:26 13 pulse of 100. That's not possible. 

10:26 14 Q. "Of further interest" -- and I'm going onto 

10:26 15 the next page -- "it is not uncommon for first responders 

10:26 16 to apply defibrillation shocks in attempts to resuscitate 

10:26 17 a subject experiencing non-fibrillation type arrhythmias." 

10:26 18 Is that true? 

10:26 19 A. That is known to occur. 

10:26 20 Q. But it's not common, is it?

10:26 21 A. I would say it's not rare. I mean, does it 

10:26 22 happen every day? Maybe not. But one of the things that 

10:26 23 they are taught is if they see a rhythm that they are 

10:27 24 unsure of, such as asystole that could represent fine 

10:27 25 ventricular fibrillation, they are instructed to go ahead 

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10:44 1 that on mine. Oh, I'm sorry, it does, right here on the 

10:44 2 left. It's very hard to see. 

10:44 3 Q. Right. It's very hard to see. This is how 

10:44 4 I got it from -- from -- from Taser. 

10:44 5 So it appears that what -- and this wasn't a 

10:44 6 360 joule shock. 

10:44 7 It appears that what the authors did is -- 

10:44 8 is somebody put the strip for the Shock 1 instead of the 

10:44 9 strip for Shock 4 in the report.

10:44 10 A. Okay. 

10:44 11 Q. Does that seem to make sense?

10:44 12 A. Sure. 

10:44 13 Q. Okay. Well, does that make -- other than, 

10:44 14 obviously, being an error -- and I know we pointed out a 

10:44 15 typo in one of your articles once, for example -- other 

10:45 16 than being an error, is this error any way material to the 

10:45 17 case report or the conclusions that -- that you can think 

10:45 18 of?

10:45 19 A. You know, it actually is somewhat material 

10:45 20 in the standpoint of this required -- at least from what's 

10:45 21 provided here to me -- at least four shocks of 

10:45 22 defibrillation. Correct? 

10:45 23 Q. Right. But they say that on the front -- on 

10:45 24 the front page. 

10:45 25 A. Right. And, again, it kind of speaks to the 

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10:45 1 same thing that's occurring in this case with Mr. Butler. 

10:45 2 If you believe that this is a electrically-induced 

10:45 3 phenomena, then the appropriate thing would be quick 

10:45 4 defibrillation, which it sounds like this was immediately 

10:45 5 recognized, and the appropriate response should be 

10:45 6 immediate successful defibrillation back into normal sinus 

10:45 7 rhythm, which is not what occurred here. Which leads me 

10:46 8 to believe that there is likely something else going on. 

10:46 9 Q. Okay. But -- but I'm asking if the report 

10:46 10 is misleading -- because it says in the report on the 

10:46 11 prior page, "After four shocks and the administration of 

10:46 12 epinephrine, atropine and lidocaine, a profusing rhythm 

10:46 13 was restored". And it says "Figure 1B", which, actually, 

10:46 14 was the first shock, not the fourth shock. 

10:46 15 A. Okay. Well -- 

10:46 16 Q. But -- but the fact that they mixed up those 

10:46 17 two strips -- or somebody did -- doesn't change anything 

10:46 18 in this paper, does it? Because the two strips show 

10:46 19 essentially the same thing?

10:46 20 MR. MALEY: I'm -- I'm -- I'm sorry, John. I 

10:46 21 just -- I don't know what you're asking. So I've got to 

10:46 22 object. If -- if the witness understands what you're 

10:46 23 asking -- I just don't know what -- 

10:46 24 THE WITNESS: I think I know what you're asking, 

10:46 25 but I guess I'm not -- in my mind, there's two issues 

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