The opinion
Shepherd, P.J.
(dissenting). Even though there is considerable evidence in the record that the testimony of Dr. Wilcox is either weak or incorrect, I believe that his testimony should have been admitted into evidence. His opinion was based on the assumption that the substance observed in the mouth of the decedent accumulated within a relatively short period. He testified that he would have observed a condition of pulmonary edema when he examined the decedent a few days earlier if such a condition had existed. His opinion, therefore, was in part based upon earlier observation. The two witnesses who called the EMS testified that they had not seen the decedent since 9 o’clock the previous evening. They observed him frothing at the mouth after breakfast. The majority’s opinion seems to assume that the frothy substance could not have been vomitus if it was observed before the EMS technicians arrived. However, we do not know whether the substance began to accumulate immediately before the arrival of the EMS or whether it had been accumulating for several hours before their arrival. Nor do we have in the record a precise definition of the meaning of "a long time”.
This points to the weakness and/or inaccuracy of Dr. Wilcox’s testimony. Nevertheless, since he did opine that pulmonary edema would have been observable in his earlier examination and that he did not find it, he should have been allowed to testify that the frothy substance was probably vomitus. The testimony of the defense witnesses may very well have overcome the testimony of Dr. Wilcox but I believe there was enough in the record to permit the testimony to go to the jury.