- The document summarizes a telephone conversation with a veterinary pathology professor regarding a necropsy report from a lawsuit. - Key issues noted with the necropsy included a lack of documentation regarding tissue fixation and preservation, as well as the significant time delay of over 16 hours between the horse's death and initiation of the necropsy. - Case law was cited establishing an insurer's obligation to thoroughly investigate claims and not deny claims based on biased or unreasonable expert opinions. Based on the deficiencies in the necropsy, the insurer's denial of the claim was in bad faith.

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MEMORANDUM
TO: File
FROM: Lesli M. Hogan
RE: Bibb v. Great American
Telephone call with Ana Alcarez, Associate Professor of Pathology at Western
University of Health Sciences, College of Veterinary Medicine, Regarding
Documents Produced in Response to Business Records Subpoena to California
Department of Animal Health and Food Safety/Hailu Kinde, DVM
DATE: March 16, 2015
Telephone conversation with Ana Alcarez, Associate Professor of Pathology at Western
University of Health Sciences, College of Veterinary Medicine, 309 East Second Street, Pomona,
California 91766-1854; telephone 909.623.6116. Website:
Dr. Alcarez was formerly employed at the Veterinary Pathology Laboratory at Cornell University,
Ithaca, New York, and is familiar with their standard procedures. So as not to mislead her, I
explained the basic facts of the lawsuit, without identifying the parties. I did identify the
California Animal Health and Food Safety Laboratory, San Bernardino office (Dr. Kinde’s office,
but without identifying Dr. Kinde himself by name). I explained that neither the lab, the
involved veterinarian, the employees/ agents of the lab, nor the State are parties to this lawsuit. I
indicated that I simply hoped that she might be willing to lend her expertise to assist me in
properly interpreting the documents produced by Dr. Kinde and the CAHFS Lab regarding the
necropsy performed on Regatton.
NOTE: I evaluated Dr. Alcarez’ comments in the context of my several years of medical
malpractice defense. During those years, I reviewed and evaluated myriad Coroner’s
Reports prepared by medical examiners employed by the County of Los Angeles.
Furthermore, in most cases, I both interviewed the medical examiner who prepared the
report, and discussed his or her findings with an expert in whatever field the medical
examiner found to be the cause of the person’s death.
Clearly, I am neither a pathologist, nor a physician. However, notwithstanding the fact
that it was I who sought Dr. Alcarez’ opinion out, I found some of her conclusions and
opinions questionable, and, unless the “standard of care” in veterinary pathology is
entirely different from that in human forensic medicine, probably wrong, potentially
influenced by a disinclination to state negative opinions regarding a peer, irrespective of
how anonymous the peer may be. Furthermore, I have no idea how many veterinary
pathologists the San Bernardino office of the CAHFS Department employs, and it’s
certainly possible that Dr. Alcarez may have been able to determine Dr. Kinde’s identity
simply by knowing where the necropsy was performed (a fact she insisted upon knowing
prior to answering any questions).

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However, the fact is that decomposing tissue reacts exactly the same to the passage of
time and lack of preservation agents, irrespective of whether it is human or equine, and,
as indicated below, some of what Dr. Alcarez indicated is “common practice” in animal
necropsies, if true, would result in woefully inaccurate results.
HISTOLOGY1
The Final Necropsy Report, dated May 11, 2012, reflects an entirely negative histological
examination. The following organs were submitted, per the Necropsy Report, for evaluation:
 Liver;
 Spleen,
 Kidney;
 Heart;
 Stomach,
 Small intestine;
 Large intestine, and
 Lungs.
The Necropsy Report describes all specimens as in a state of “MODERATE TO SEVERE
AUTOLYSIS.” [Autolysis = breakdown of tissue by self-produced enzymes, i.e., self-digestion
by decomposing tissue of deceased animal.]
In a human autopsy, histology on specimens obtained from a decedent who expired more than
twelve hours prior to collection of the samples are considered worthless for histology purposes.
Per Dr. Alcarez, this is not the case for necropsies performed on animals, and she found this
extended passage of time of no significance. I find this remarkable, to say the least.
I am providing the following is a brief summary of the histological process, for your review and
comparison with what was done in the necropsy at issue in this case.
Histological evaluation requires that the tissue be removed and placed in a fixative.
While the organs listed on the Specimen Routing Form note the staining process utilized
(“H&E,” the single most commonly used stain in histopathology, a combination of
hematoxylin and eosin, which stains cell nuclei blue, and cytoplasm and the
extracellular connective tissue matrix pink), this is the only informative data on the
Routing Form, which fails to even list the organs submitted.
Since the purpose of performing histochemical evaluation of tissue samples is to
document the chemical reactions between laboratory chemicals and myriad possible
toxins, etc., in the tissues, the failure of the records to record information such as which
type, if any, process was used to stabilize the tissues to prevent further decay is not an
insignificant detail. Most commonly, the samples would be placed in formalin (10%
formaldehyde in water), but review of the records produced provides no inkling that
1 Histological Examination is the examination, normally under an electron microscope, of cells or tissues that
have been removed and placed in a fixative. Compare to Cytology, which examines free cells, i.e., the cells have not
been “fixed,” and the cells/tissues are not evaluated for the chemical reactions to various agents introduced into the
fixative.

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any stabilization and/or preservative measures were taken to ensure no further
decomposition or autolysis of Regatton’s internal organs occurred.
Typically, the tissues would be prepared for examination under an electron microscope
by fixation either chemically or by frozen section. Again, no fixation method was
identified nor indication that fixation was performed at all. (Unlikely, but without
documentation, this cannot be verified.)
There is, obviously, more to the staining, fixation, and chemical/frozen sectioning and
microscopic examination process. However, the significant issue is that none of these
processes are documented. Omission of these procedures is not a matter of the policy of
the lab, but critical to the veracity of the histology results. The fact that these procedures
“must have been done” is, obviously, not admissible evidence that they, in fact, were
done. This is particularly where, as here, the defendant relied entirely on what was, in
my opinion, an extremely ill-documented post-mortem evaluation to attribute
Regatton’s death to an exclusion under the policy, thus denying payment to their
insured the mortality benefits due without a full and good faith investigation of the
cause of his death. (Note that, while an insurer may rely on expert opinion, summary
judgment on a bad faith claim must be denied where the evidence shows "the insurer
dishonestly selected its experts[,] the insurer's experts were unreasonable[,] [or] the
insurer failed to conduct a thorough investigation." the insurer must have a reasonable
belief that the expert’s opinion is based upon accurate information.) Presumably, the
insurer cannot rely on such evidence at trial.
The most commonly used stain in histopathology is a combination of hematoxylin and
eosin (often abbreviated H&E). Hematoxylin is used to stain nuclei blue, while eosin
stains cytoplasm and the extracellular connective tissue matrix pink. There are
hundreds of various other techniques which have been used to selectively stain cells.
Other compounds used to color tissue sections include safranin, Oil Red O, congo red,
silver salts and artificial dyes. Histochemistry refers to the science of using chemical
reactions between laboratory chemicals and components within tissue. A commonly
performed histochemical technique is the Perls' Prussian blue reaction, used to
demonstrate iron deposits in diseases like Hemochromatosis.
Recently, antibodies have been used to stain particular proteins, lipids and
carbohydrates. Called immunohistochemistry, this technique has greatly increased the
ability to specifically identify categories of cells under a microscope. Other advanced
techniques include in situ hybridization to identify specific DNA or RNA molecules.
These antibody staining methods often require the use of frozen section histology.
Digital cameras are increasingly used to capture histopathological images.
The histological slides are examined under a microscope by a pathologist, a medically
qualified specialist who has completed a recognized training. This medical diagnosis is
formulated as a pathology report describing the histological findings and the opinion of
the pathologist. In the case of cancer, this represents the tissue diagnosis required for
most treatment protocols. In the removal of cancer, the pathologist will indicate
whether the surgical margin is cleared, or is involved (residual cancer is left behind).
This is done using either the bread loafing or CCPDMA method of processing.

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Dr. Alcarez disagrees with my concern that the interval of at least sixteen hours between the
initiation of the gross examination portion of the necropsy and Dr. Der Vartanian’s euthanasia
of the horse is unacceptably long. I calculated this sixteen hours by inference; there are no times
noted in Dr. Der Vartanian’s record. However, she euthanized Reggie no LATER than 8:00 p.m.
on 25 Apr 2011. (Our clients were charged for an after-hours ranch call, defined as a visit
between 5:00 and 8:00 p.m.)
The significance of this is unknown. The necropsy report does not indicate what information was
sought from the histological analysis. However, in light of the fact that the entire universe
neurological disease was dismissed, it does seem remarkable that these tests were so slipshod.
See McCoy v. Progressive West Insurance Company (2009) 171 Cal.App. 4th 785, 792-793:
The law implies a covenant of good faith and fair dealing in every insurance contract. [Citation.]
Therefore, when an insurer unreasonably and in bad faith withholds payment on a claim of its
insured, it is subject to liability in tort. [Citation.] An insurer may also breach the covenant of
good faith and fair dealing when it fails to properly investigate its insured's claim. [Citation.]
Under this implied promise, in determining whether to settle a claim, the insurer must give 'at
least as much consideration to the welfare of its insured as it gives to its own interests.'
[Citation.]" (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d
1072, 1096 [234 Cal. Rptr. 835]; see also Chateau Chamberay, supra, 90 Cal.App.4th at p. 345;
see also Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 948 [43 Cal. Rptr. 3d 468].)
[Emphasis added.]
***
"The 'genuine dispute' doctrine may be applied where the insurer denies a claim based on the
opinions of experts." (Fraley v. Allstate Ins. Co. (2000) 81 Cal.App.4th 1282, 1292 [97 Cal. Rptr.
2d 386].) Reliance on an expert, on the other hand, "will not automatically insulate an insurer
from a bad faith claim based on a biased investigation." (Chateau Chamberay, supra, 90
Cal.App.4th at p. 348, italics omitted.) Although an insurer may rely on experts, summary
judgment on a bad faith claim must be denied where the evidence shows "the insurer
dishonestly selected its experts[,] the insurer's experts were unreasonable[,] [or] the insurer
failed to conduct a thorough investigation." (Id. at pp. 348-349.) [Emphasis added.]
Finally, according to the Histology Routing Form, the specimens sent to Histology were sent in a
“Tissue Pool.” Although Dr. Alcarez cannot be certain what this means, because all labs have
their own procedures, and without “inside information” about the particular lab’s policies, she
cannot know what “Tissue Pool” means, at Cornell, this would mean that the organs were
submitted as a single sample, probably in a jar of formalin (a preservative). In other words, each
individual organ submitted may or may not have been examined histologically (i.e., with an
electron microscope).
Based upon the above, I believe that it is clear that the insurer did not have good cause for
denying our clients' claim for mortality benefits for the death of the horse, as no cause of death
could be established with any degree of certainty, based upon the shoddy methods utilized in
this necropsy.