Medical examiner: Can't say for certain fentanyl killed Tyler Skaggs, but 'greater probability' i...

FORTH WORTH, Texas -- The medical examiner who did the autopsy on Tyler Skaggs in 2019 -- and ruled his death accidental -- testified Thursday that he could not say for certain that the dangerous opioid fentanyl is what killed the 27-year-old pitcher.

But Dr. Marc Krouse also said that fentanyl made Skaggs' death a "greater probability."

How the jury interprets that testimony is crucial in the government's case against Eric Kay, the former Los Angeles Angels communications director who is fighting felony charges that he distributed opioids and caused Skaggs' death.

Skaggs was found dead in a Southlake, Texas, hotel room July 1, while the team was in town to play the Texas Rangers. A toxicology report showed that he had ingested oxycodone, fentanyl and alcohol before he asphyxiated on his vomit.

The government is arguing that "but for the fentanyl," Skaggs would be alive, and that Kay is responsible for giving it to him. Kay's defense is that he doesn't believe he gave Skaggs the pills in question, and that even if he had, there is no way to prove that the fentanyl is what killed him.

Krouse was the deputy medical examiner for Tarrant County when he conducted Skaggs' autopsy, but was effectively fired last year after a series of autopsy mistakes derailed his 42-year career as a forensic pathologist.

There has been no accusation that there was any problem with Skaggs' autopsy. Krouse did not rule Skaggs' death a homicide, and when the government brought charges against Kay months later, the official news release said that "it was later determined" that the fentanyl was responsible.

Prosecutors have not yet said when that determination was made and who made it, but they are expected to address that issue when they call a number of toxicology witnesses Friday or next week.

Krouse was a tricky witness for the government, which needed him to enter the autopsy results into evidence; an observer might easily have mistaken him as a witness for the defense. Assistant U.S. Attorney Errin Martin immediately addressed with Krouse's ignominious departure from his longtime job during her direct examination, and it had been clear leading up to the trial that prosecutors expected a defense attack on his credibility.

There was no such attack.

During cross examination, defense attorney Reagan Wynn noted that the two men have known each other for years, and he avoided any mention of Krouse's prior trouble until the end of his questioning. Rather, Wynn highlighted Krouse's years of experience with overdose cases, especially involving oxycodone and fentanyl, attempting to bolster Krouse's ruling that Skaggs' death was accidental.

Krouse testified that Skaggs, who was legally drunk when he died, had stopped drinking hours earlier. He also said that Skaggs had ingested oxycodone "up to 30 to 60 minutes" before his death. Krouse then said based on how little of the fentanyl Skaggs' body had processed, he had died shortly after using it. Krouse described the amount of fentanyl as "potentially toxic." He then said that when someone has ingested three things and then dies, people generally infer that the third thing -- in this case, fentanyl --is what caused the death.

"No scientist can be 100% sure," he said.

With Skaggs' mother and stepfather looking on from the gallery, Krouse also said that an examination of Skaggs' brain showed that his death was not immediate and "more drawn out." Later, as an autopsy technician described how he removed fluids from Skaggs' body for examination, they left the court room, Skaggs' mother visibly distraught.

Krouse never gave Wynn the clean answer he was looking for when Wynn repeatedly asked if Skaggs could have died without the fentanyl.

"Without the fentanyl, could the ethanol and oxycodone have caused him to" vomit and asphyxiate, Wynn asked.

"Reduced probability," Krouse said. "It can't be eliminated."

Wynn followed by asking: "Can you say to a medical certainty that Tyler Skaggs would be alive if he hadn't ingested fentanyl?"

Krouse responded: "Greater probability."

"Higher probability, lower probability," Wynn concluded. "That's as close as you can get?"

"Yes," Krouse said.

Earlier in the day, while the technical expert who compiled the data from Skaggs' phone testified, the government highlighted a series of texts between Kay and Skaggs that the government has offered as evidence Kay gave Skaggs drugs the night he died, while they were in Texas. (The defense argues that any transactions between Kay, an admitted addict, and Skaggs took place in California, and that Texas should not have jurisdiction.)

The text exchange already has been discussed several times since the trial began Tuesday: Kay: "How many?" Skaggs: "Just a few." Skaggs: "Like 5." Kay: "Word." Skaggs: "Don't need many." Kay: "K."

The defense countered with questions about items that Skaggs deleted from his phone, suggesting that he had something to hide besides his conversation with Kay.

The defense also used that witness, Stefan Hare, who works for the U.S. Secret Service, to advance its efforts to make the trial as much about Skaggs' behavior as Kay's. The defense displayed a series of texts the day before Skaggs died between the pitcher and a person who was listed as a contact in his phone under the name "Ben R." A selfie sent to Skaggs, who was married, showed that "Ben R" was a young woman.

Ben R: "Hey boo." Skaggs: "How are you doing?" Ben R: "You're going to love my outfit today -- ha." Skaggs: "Oh yeah? Where are you so I can see it."

Ben R then said she'd be sitting in section 210 behind the dugout, and sent the selfie a short time later.

Skaggs: "Ha ha - so sexy."

He then told her to come to the food room after the game so she could see the black western outfit he planned to wear for the Texas trip.

During previous testimony, both sides have pointed out that only team officials can visit the clubhouse room where players and some staff eat.

The trial is expected to last at least through next week.