Wrongful Death Suit Against Drew Peterson?

This is a rush transcript from "On the Record ," February 22, 2008. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, HOST: Kathleen Savio's family is petitioning the court to reopen her estate so they can file a wrongful death lawsuit against Drew Peterson. Now that the state's attorney's office says Savio's death was a homicide, how does this affect the civil suit? Let's bring back the panel.

Before we do that, Dr. Baden, where — can you show — where was the gash on her head?

DR. MICHAEL BADEN, FORENSIC PATHOLOGIST: The gash was on the back of the head, sort of in the midline.

VAN SUSTEREN: About how big?

BADEN: It said a few inches. And it had a lot of blood, and there was a lot of blood on the hair that wasn't — in order to get the best example of measurement, you have to shave the hair. It doesn't look like the hair was shaved here. It was about a two or three-inch laceration, a lot of blood in the hair. What probably happened is that she was laying face down with the blood on the hair over the 30 hours which I think she was dead, 36 hours. The water slowly leaked out of the tub, and that's why when she's found face down or on the side, the blood is still very prominent in the hair.

VAN SUSTEREN: But she died from drowning, not from that gash on her head, right?

BADEN: That's right. That's right. A gash on the head, a lot of bruises on the body, and — but the cause of death was drowning, so...

VAN SUSTEREN: Someone held her down.

BADEN: Held her down, that she was beaten up before the drowning occurred, so if she were unconscious — if she were conscious, she was held down. She could have been unconscious.

VAN SUSTEREN: All right. Michael Cardoza, let's talk about the civil suit.

MICHAEL CARDOZA, CRIMINAL DEFENSE ATTORNEY: Sure.

VAN SUSTEREN: The family has asked to reopen the estate, saying that there's a brand-new asset out there that wasn't — that didn't go through her estate, the asset being the wrongful death action against Sergeant Drew Peterson. What do think about this?

CARDOZA: You know, I go back to — let's go back to 2004. Let's say that jury, the coroner's jury, did come back and they said criminal agency caused her death at that time. Is there enough evidence to prove Drew Peterson did it at that time? Do we know...

VAN SUSTEREN: By a preponderance...

CARDOZA: ... do we think...

VAN SUSTEREN: ... of the evidence.

CARDOZA: Probably not.

VAN SUSTEREN: That's — not beyond a reasonable doubt, though. This is a civil case...

(CROSSTALK)

VAN SUSTEREN: ... by 51 percent.

CARDOZA: Right. By the preponderant of evidence, right. So do they have a better case in the civil? Absolutely. But Brodsky, the attorney, is saying — and he better be careful here because he could get hoisted on his own petard. He's saying, Well, the statute of limitations is two years, but is it two years from discovery that there was a criminal agency or just two years from her death? And I've got to tell you...

VAN SUSTEREN: And...

CARDOZA: ... one thing I know about courts, if they get emotionally involved, and they want litigation to go through, believe me, they will rationalize to let in that civil case...

VAN SUSTEREN: And — and that...

CARDOZA: ... be filed in this court.

VAN SUSTEREN: And it's a fluid point (ph) to statute of limitations if there's fraud involved sometimes. But I mean, that's — it's going to be enormously...

CARDOZA: Agreed.

VAN SUSTEREN: ... complicated to litigate. Ted, you've been shaking your head some...

(CROSSTALK)

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, you know, I would love for them to be successful in a wrongful death suit against Peterson. But from the evidence and what we know, even though the standard is by preponderance of the evidence, I don't think they'd be successful in a civil suit against Peterson. But they may very well be successful in a civil lawsuit against the police department...

VAN SUSTEREN: No way.

WILLIAMS: ... if they knew...

VAN SUSTEREN: No way.

WILLIAMS: ... about all of the various activity and this woman complained...

VAN SUSTEREN: No way.

WILLIAMS: ... and they did nothing (INAUDIBLE)

VAN SUSTEREN: Bernie, is he going to get charged criminal — with this death? Is Sergeant Drew Peterson?

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: No, for the reasons Ted said. You can't...

VAN SUSTEREN: Yes.

GRIMM: You can't...

(CROSSTALK)

GRIMM: No, you...

VAN SUSTEREN: Michael, is he going to get he charged, Michael Cardoza?

(CROSSTALK)

GRIMM: ... honestly believe you can get him convicted, which when Cardoza was a prosecutor, he would have done. Some prosecutor could charge him, but he could charge me, Ted...

VAN SUSTEREN: All right...

GRIMM: ... and on his worst day, charge Dr. Baden...

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