2003 WL 25535487 (N.Y.Sup.) Page 1 THE COURT: Go ahead. · PDF file · 2017-04-08Q...

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© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Supreme Court of New York.

Kings County DIARASSOUBA,

v. URBAN, William P. M.D.

No. 0046674/1998. July, 2003.

(Transcript of Alexander Weingarten, MD)

THE COURT: Call your next witness. MR. JORDAN: Yes. The plaintiff calls Dr. Alexander Weingarten. MR. MAHON: Your Honor, may I approach? THE COURT: Now what is it? MR. TERZIAN: He wants to call Dr. Weingarten. THE COURT: I said he could. We're continuing. I just told him to call his next witness. ALEXANDERE. WEINGARTEN, M.D., called as a witness, having been first duly sworn by the clerk of the court, testified as follows: THE CLERK: Please, have a seat. Give us your full name and your address. THE WITNESS: Alexander E. Eugene Weingarten, W-E-I-N-G-A-R-T-E-N; 86-90 Palermo street, Hol-liswood H-O-L-L-I-S-W-O-O-D New York 11423. THE CLERK: Thank you very much. Go ahead.

THE COURT: Go ahead. MR. JORDAN: Thank you. DIRECT EXAMINATION BY MR. JORDAN: Q Good afternoon, Dr. Weingarten. A Good afternoon. Q I'll just remind you to keep your voice up. What is your medical specialty? A I am a board certified anesthesiologist with a subspecialty certification in pain medicine. Q Just tell us a little bit about what anesthesia and what a sub-certification in pain medicine entails? A Well, anesthesiology is a specialty that up to re-cently was usually associated with maintaining pa-tients under anesthesia during surgical procedures usually in an Operating Room setting, you know, monitoring them appropriately, giving them the ap-propriate medications to keep them under anesthesia and pain free as well as allowing a good surgical field, which would mean that the patient doesn't move dur-ing surgery and maintaining, you know, the vital signs, the blood pressure, the oxygenation of the blood, the heart rate and cardiac functions as well as the other bodily functions to be monitored and main-tained as near normal as possible so that the patient emerges from anesthesia in as good a condition as possible for that type of surgery. That's what anesthe-sia has always been for the last many years. Over the last fifteen years or so a new specialty called Pain Management has emerged, which anesthesiolo-gists have been in the forefronts of both discovering new therapies and actively maintaining pain man-agement practices and that has brought the anesthesi-ologist out of the Operating Room so that we now are

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in the office or from an ambulatory setting, we take care of people with chronic pain. Chronic pain is pain that is usually more than one to two months old and it's usually pain that won't go away by itself and it requires other therapies to both hopefully heal the pain or at least maintain the pain at a very tolerable level. Q What types of patients do you work with currently? A I work with basically anybody that has pain, such as cancer pain, such as nerve pain in terms of neuropathic pain, such as facial pain, such as a lot of spinal pain. We deal with neck pain, low back pain, industrial accidents. Pain that is associated with industrial ac-cidents. Basically, all kinds of pain that patients can complain about. Q Just tell us briefly about your education and training in this field starting from medical school up until the time you began your current practice? A I went to medical school in Syracuse from 1976 to 1980. I graduated with an M.D. degree from the State University Upstate Medical Center in Syracuse. That was followed by an internship in Internal Medi-cine at Long Island Jewish Medical Center from 1980 to 1981. That was followed by a residency in Anesthesiology at Long Island Jewish Medical from 1981 through 1983. In 1983 I went to the Children's Hospital National Medical Center in Washington D.C. and spent a year taking care of high risk pediatric anesthesia cases to be more proficient in the field of pediatric anesthesia. I then returned to Long Island Jewish as an attending anesthesiologist from ‘84 to ‘91. And during that time I taught residents the field of anesthesia as well as I taught them the basics of this submerging field called Pain Management. In 1991 I opened up a private practice office in New

Hyde Park, New York where I continue to work until the present time specializing in the field of Pain Medicine. I also have ??ontinued to do anesthesia at the Catholic Medical Center of Queens and Brooklyn, St. John's and St. Joseph's Hospital, in particular, but I also have privileges in the Anesthesia Department at the North Shore Hospital, Syosset Division in Syosset, New York. Q What, if any, experience can you just briefly de-scribe have you had with regards to being an anes-thesiologist during surgical procedures? A Well, I have done about, you know, 1000 to 2000 cases a year from the time I was a resident until, you know, until the recent past when I slowed down my hospital experience. So until 2002 I was doing about one to 2000 cases a year in the Operating Room. Q Does that experience include knee surgeries? A Yes. Q Have you ever testified before? Have you ever been qualified as an expert to testify in court? A Yes. Q Let's say in the past five years, approximately, how often have you come to court to testify? A Usually about two or three times a year. Q Has that always been for the plaintiff, the person bringing the suit or have you done any work on the defense? How would you characterize that? A It has been mostly plaintiffs, but occasionally I am called by the defense to review cases and to render an opinion. Q For taking time away from your practice to come here today to offer your opinions, are you being compensated? A Yes, I am.

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Q How much are you charging for this service? A I am charging for the time that I am away from my practice. And depending upon whether it is a full day or a half day, it would be between $4,000 and $6,000. Q You had occasion to meet with me prior to coming here today? A Yes. Q Did you bring with you your office chart on Mah-moud Diarassouba? A Yes, I did. MR. JORDAN: Do we have that? Your Honor, I would like these documents at this time marked, maybe, Exhibits 7 and 7-B. THE COURT: Any objection.? MR. TERZIAN: For identification, no. MR. MAHON: Same. THE COURT: Are you marking it for identification or in evidence? MR. JORDAN: What's that? THE COURT: Are you moving it in to evidence? MR. JORDAN: Yes. I'd like to move those in to evi-dence. THE COURT: Any objection to that? Let's cut to the chase. MR. TERZIAN: Well, my objection would be based on prior discussions. THE COURT: The objection is overruled. MR. MAHON: Note that I have the same objection. THE COURT: It's overruled.

Go on. THE CLERK: Plaintiff's 7-A in evidence and Plain-tiff's 7-B in evidence. (Whereupon, the aforementioned items were so marked as Plaintiff's Exhibits 7A-B in evidence.) MR. JORDAN: Thank you. Q Doctor, for the record I am handing up what has been marked as 7-A and 7-B, as Plaintiff's exhibits in evidence. If you need to refer to those for these ques-tions, please feel free to do so. My first question is when did you first meet Mahmoud Diarassouba? A I first met Mr. Diarassouba on 4/2/2001. Q Have you had any occasion to review any docu-ments with regard to Professor Diarassouba? A Yes, I have. Q What documents have you reviewed? A I reviewed the various admissions that he had at Downstate Medical Center. I just would like to refer to my notes as I am answering that. So I reviewed the various hospital records at Down-state Medical Center. I reviewed the office notes of William Urban, the office notes of Norman Marcus, the office notes of Howard Edelglass, the depositions of Spencer Lubin, William Urban as well as Mahmoud Diarassouba and Dr. Kentaro Horiuchi. Q Now when the patient came to your office, did you have -- do you know if you had any of those docu-ments prior to his visit? A No, I didn't. Q So when the patient came to you, did you take a history from the patient?

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A Yes, I did. Q Briefly tell us the history that you took from the patient? A This history was given to me by Mr. Diarassouba himself. He told me that he had undergone surgery on June 5th, 1996, which was a left knee reconstruction. He had been diagnosed with a left knee dislocation prior to the surgery. Postoperatively he developed burning pain and swel-ling involving the right calf. He was told that it was secondary to leg immobilization during ten hours of surgery. He was also told that he had developed a deep vein thrombosis during surgery. He was placed on Cou-madin and analgesics. He subsequently had two months of symptoms in-volving sensitivity to touch and temperature changes. He was re-hospitalized and given sympathetic blocks, but he mentioned to me that the pain did return after about two hours following these blocks. He also had three lumbar epidural steroid injections, which did not provide long-term relief. He was given increasing doses of neurodin analgesics. And presently he complains of pain in the right ankle and foot as well as numbness in the right foot over the dorsum, over the dorsum aspect of the right foot. Q What is the dorsum? A The dorsum is the top of the foot. Q Thank you. A He, I guess, he describes the pain as shooting pain while sleeping, but he does deny swelling, allodynia or temperature changes. Q What is allodynia? A It is sensitivity to fine touch.

I have written the pain is occasional burning in quality and he states that his numbness has been permanent. He is now off -- not taking any neurodin and uses oil over the site at night, but still has burning pain over the plantar aspect of the right foot. He presently teaches at Manhattan Community Col-lege. The patient also stated that he can't stand for longer than two hours or wear shoes longer than two hours. MR. TERZIAN: Your Honor, if I may just interrupt. What is the doctor reading from.? THE WITNESS: I am reading from my initial visit dated 4/2/2001. THE COURT: Do you have that? MR. TERZIAN: No. THE COURT: You don't have a copy? MR. MAHON: I don't have a copy of that. THE COURT: What is the next question? MR. JORDAN: Okay. Q After receiving this history from the patient, did you do an exam? A Yes, I did. Q What was the results of your exam? A Okay. On physical examination I found that the left lower extremity had a scar over the knee. And that he had full motor and sensory functions in the left lower extremity. The right lower extremity I found him to have de-creased pin prick sensations. So he had decreased sensations to pin prick over the anterior, right anterior posterior calf. So the front and the back of the calf,

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except for the proximal portion of the calf, which is the upper portion of the calf. My motor exam showed decreased right knee flexion and decreased right foot flexion and extension as well as decreased toe flexion and extension. So he had weakness at the knee with flexion and at the foot with both flexion and extension and at the toes with both flexion and extension. He did not have edema or dwelling or allodynia, which is sensitivity to fine touch. His reflexes, the examination of the reflexes revealed no knee reflexes right and left. His ankle jerk was only one plus on the left and absent on the right. MR. TERZIAN: We don't have it. Q Did you come to a diagnosis at that time? A Yes, I did. Q What was it? A My diagnosis was neuropathic pain involving the right foot. Q Now is neuropathic pain the same thing as saying neurologic pain? A No. Q What is the difference? MR. TERZIAN: Objection. THE COURT: Well, I'll allow that. Well, I don't know what the neuropathic is; just de-scribe what he had. MR. TERZIAN: I object to this witness' testimony on neurology. He is not a neurologist. THE COURT: Well, I asked him to describe what you found what the patient was suffering from.

A I-- Q Doctor, describe, what is neuropathic pain? A Neuropathic pain is an obvious -- it's a neuropa-thological diagnosis. And, basically, it's a dysfunction of the sympathetic fibers particularly causing a whole syndrome, which has also been described as causalgia and also has been described as CRPS - Compression Regional Plane Syndrome. Those are other names which have been associated with this broad name of neuropathic pain, but basi-cally it involves a poor working of the sympathetic fibers of the nerve. They are not working properly and they give off a syndrome that is composed of burning pain, swelling, color and temperature changes. So that these patients are either inappropriately hot and cold in the extremities or they manifest either redness of the extremity when it shouldn't be red or cyanosis or blueness of the extremity. This all relates back to the sympathetic fibers of the nerves going down to that extremity and that has been termed neuropathic pain. Q Now you mentioned the term Complex Regional Pain Syndrome, correct? A Yes. Q What was the term used medically before that term for the same disease? A The original term -- there whether two terms. There was causalgia and there was reflex sympathetic dy-strophy. Q Earlier I asked you if neuropathic pain and neuro-logical pain, those terms mean the same thing and you said, no. I just ask you and I would like you to explain your answer?

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A Okay. Neurological pain is just pain from a nerve, any nerve. It can be any kind of pain. So it is sort of a broad definition. It really doesn't, you know, make any kind of a diagnosis because people could have pain, but we'd like to know exactly where the pain is coming from. We know the pain is from nerves. So you know it's a definition that really doesn't tell us the cause of the pain. Whereas neuropathic pain is more specific in that we associate this kind of pain with the sympathetic, the sympathetic fibers of the nerves not working right and thereby producing a definitive picture involving clas-sic symptoms like what I mentioned just before. Q Now you referred to these symptoms emanating from dysfunction of what you call the sympathetic fibers of the nerve area. Just briefly explain what you mean by the sympathetic fibers and how that relates to the symptoms you de-scribed? A Okay. Every human being has a nervous system that is composed of different components. There is the -- Just to make it simple, we'll take the two opposing components. One is called the parasympathetic nervous system and one is called the sympathetic nervous system. Each of those systems work antagonistically to each other, but together they cause normal functioning of the body. When they are in sync, when those two systems are working exactly right, each balances off the other. We wake up, we do our daily routine as normal human beings. When one system, either when one system starts working poorly and there is overshadowing of either that system or the other system, that is when you see disease process and that is when the body doesn't function right. So the sympathetic nervous system usually controls the fight or flight response.

When we are excited, when we're running away from a dangerous situation, that activates a whole system of nerves that protect the both against danger. You know, it involves sweating. It involves the heart rate going up. It involves everything that you think about when you get excited as to what happens to your body. It involves anxiety. It basically cuts off the parasympathetic nervous system from functioning at its optimal level. So the parasympathetic nervous system would in-crease movement of the intestines so that when that gets, you know, activated, you know, you can get a diarrhea type of situation where the intestines are overacting. The sympathetic nervous system cuts down the activ-ity of the intestines because you don't really need the intestines when you are running away from danger. You need other things to be working. You need your muscles. You need your heart rate to raise and provide more blood to the body and oxygen so that in that situation, the sympathetic nervous sys-tem, you know, is the predominant force that is caus-ing the body to do whatever it has to do to avoid danger. So the sympathetic nerves, again, they cause sweating. They cause the heart rate to go up. Whereas, the parasympathetic nervous system will stop sweating and they will cause the heart rate to slow down. So there is always a constant balance between those two systems. Q What are the known causes of damage to the sym-pathetic nerve fibers that you described earlier known as either as reflex sympathetic dystrophy or complex regional pain syndrome or causalgia? MR. MAHON: Objection. MR. TERZIAN: Objection.

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THE COURT: Overruled. A Okay. The usual causes of the syndrome that I de-scribed before, which we call reflex sympathetic dy-strophy or causalgia, usually it involves a trauma to the extremity. It's usually an extremity that is involved, although it can involve other parts of the body. Classically, it is the upper or lower extremities that are usually in-volved. You can see this occurring after a fracture of a bone. You can see it occurring after casting a fracture and taking the cast off six weeks later that the trauma of either the casting or the fracture, you know, may provoke this sympathetic dysfunction and allow all these symptoms to start happening. You know, it could be from, you know, as simple as a book case falling on a leg where there is no fracture, but just the trauma of that activity can cause certain -- these sympathetic nerves to start to act and go wild and basically be out of control. Q Now what is a deep vein thrombosis? A A deep vein thrombosis is a, basically, it's a thrombosis is a clotting of the blood in the vein. Deep vein just means, you know, deep in the tissues. And by the blood clotting, it doesn't return to the heart. It stays there. It also impedes, you know, the blood in the leg from returning to the heart or the blood any place els where the thrombosis occurs from returning to the heart so that you can wind up getting, you know, oxygen starvation of tissues and, you know, you can wind up getting a lot of problems in terms of tissue viability for the future, if it's not corrected. Q What relationship is there, if any, between a blood clot in a vein deep vein thrombosis and reflex sym-pathetic dystrophy? MR. TERZIAN: Objection. MR. MAHON: Objection.

THE COURT: I'll allow it. Is there a relationship? I'm allow that. A Well, again a deep vein thrombosis is a form of trauma, you know, to the body. As I mentioned before, reflex sympathetic dystrophy classically occurs after an episode of trauma. So that if, if a limp is traumatized by a clot, which causes the limp to start being starved of oxygen and the tissue being starved of oxygen, that is considered a trauma to that limp that can then cause damage to the sympathetic nerves, which then brings out and starts giving the patient all the symptoms that we talked about just a few minutes ago. MR. MAHON: Objection. THE COURT: Overruled. Q Doctor, what is the term nerve entrapment refer to? A Nerve entrapment -- MR. TERZIAN: Objection. THE COURT: Overruled. A ??ve entrapment refers to basically what the word says. It's, basically, a trapping of the nerve at a par-ticular site so that the nerve, the electrical conduction along that nerve doesn't occur properly and the nerve just doesn't act normally and provide normal sensation beyond that area of where the entrapment is. Q I want you to assume there's been testimony in this case by Dr. Urban that reflex sympathetic dystrophy and causalgia and nerve entrapment or nerve impres-sion are essentially saying the same things. But I want you to assume there has been further tes-timony from the same doctor that there are subtle differences between them. I am going to ask you, doctor, your opinion and keep in mind any opinion I ask you is to a reasonable degree of medical certainty.

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What is the difference, if you can explain, between reflex sympathetic dystrophy and nerve entrapment? MR. TERZIAN: Objection. MR. MAHON: Objection. THE COURT: Overruled. A Okay. Nerve entrapment, like I said, basically is a trapping of the nerve for which puts pressure on the nerve in that particular area of where it is being trapped so that the conduction of current -- You know, nerves work by conducting current along the nerves. So that the current going down that nerve does not flow freely down that nerve and the patient then ends up having a different sensation other than what a normal sensation should be along that nerve con-ducting route., okay. Nerve entrapments can lead to reflex sympathetic dystrophy, but they don't always have to lead to reflex sympathetic dystrophy. You can have a nerve entrapment like carpal tunnel, which I am sure many members of the jury have heard about where the nerve is actually trapped at the wrist by a fibrous layer of tissue and the patient -- those patients with carpal tunnel experience tingling in the hand. That tingling in the hand is not a normal sensation of the hand. That's-why they seek medical attention. The way that is corrected is by cutting out the band of tissue that is covering, in this case, the medial nerve which supplies sensations along the palm or surface and the fingers on the palm or surface of the hand and all of the sudden you cutaway that tissue and the nerve goes back and functions fine. You can get situations with nerve entrapment where the nerve goes more crazy. Instead of just giving off tingling, it starts giving off inappropriate sweating, inappropriate color changes in to the area, inappro-

priate burning pain. So that that would be a worse degree of what can happen following a nerve entrapment, but it doesn't always have to lead to something called reflex sym-pathetic dystrophy. Q Now do you have Plaintiff's 5 in evidence? I am going to show you what's been marked in to evidence as Plaintiff's 5 and ask you if within that exhibit, is there a test relating to nerve compression or nerve entrapment with regard to Mahmoud Diaras-souba? MR. MAHON: Objection. MR. TERZIAN: Objection, this is not a neurologist. THE COURT: Maybe, you want to ask a few founda-tion questions. Q Doctor, you indicated earlier that you treat patients primarily who have nerve injuries, is that correct? A Yes, I do. Q Is it within your knowledge and training and expe-rience as a doctor as to whether there are tests to test for nerve entrapment in a patient? A Yes, there are. Q What are those tests? A They basically fall under nerve conduction studies. Specifically, some of them you can call -- in this case, it's called SSEP, which is it invokes a potential where they actually measure the time that it takes for a sti-muli that is put at one part of the nerve to reach a different part of the nerve at a distance away. They can tell just how fast the conduction occurs. You know, whether it is conducting normally. And, you know, accor??ng to the different graphs that they get, you know, what kind of picture that, you know, or what kind of diagnosis is leading to whatever

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they are testing for. Q Is there a difference between SSEP and a nerve conduction velocity test? I believe Plaintiff's 5 has two different tests on two different dates. A Okay. On Februa?? underwent SSEP of the lower limp, which is a somatose?? voke potential. MR. TERZIAN: Your Honor, objection. I would like to know if there could be a voir dire of this witness on his qualifications to interpret or testify about these tests. MR. JORDAN: I am going to ask some more ques-tions before I think we need to get to that. THE COURT: What is the next question? Q Doctor, as to these tests, which types of doctors generally perform these tests? A Generally, a neurologist would be a person totally capable and educated to perform these tests, but I have seen also physiatrists, which are rehabilitation doctors, also have the knowledge and capacity to perform these tests. Q After these tests are performed, is it customary for the person who performed the test, either the neurol-ogist or physiatrist to include an impression as part of the test? A Yes, it is. Q Is it part of your practice and your expertise to treat patients in light of these impressions and to review them? A Yes. Q Now can you tell us, doctor, what the impression was with regards to Professor Diarassouba following the nerve conduction velocity test, which I think you said was February 3rd? A February 3rd, ‘97. Okay. The impression was a

nerve conduction study of the lower extremities re-veals evidence for a right tibial nerve entrapment below the right knee. Comparison with previous electrodiagnostic studies is recommended. Q What about the impression of the February 19, 1997 test? And first tell us what type of test that was? Was that the SSEP? A That was the SSEP. Q What was the impression? A Perineal nerve SSEP study reveals a significant delay in component latency with right perineal nerve stimulation at the ankle. Q What does that mean? What is the implication of that? A Well, it just means that -- MR. TERZIAN: Objection. THE COURT: Overruled. A It just means that there was a delay in the time it took to conduct the electrical impulse from the ankle along the route of the perineal nerve. Q A delay on both sides or on one side? A A delay on the right. This is the right perineal nerve. Q By the way, when you reviewed the records in this case,, did you have a copy of that test? A No, I did not. MR. TERZIAN: Objection. MR. MAHON: Objection. THE COURT: Overruled. Maybe, we should take our lunch recess now. It's one

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o'clock. It's after 1:00. Do not discuss the case. We'll return back here at 2:15. (Whereupon, the jury exits the courtroom.) THE WITNESS: May I step down? THE COURT: Yes. THE CLERK: 2:15. MR. JORDAN: On the record. I want to make a quick note. I would like the Court to instruct the defendants not to somehow try to convince the jury or show the jury that they don't have certain documents that they have. As the doctor was testifying and he was referring to his first office visit, that is one of the notes that was in the medical exchange that we've been discussing ad nauseam. I am going to ask that the defendants not indicate they don't have things that they really do. I know the doctor's handwriting is hard to read, but that is the reality of it. THE COURT: Again, I don't know what they have and don't have. I am doing the best I can to correct it. MR. TERZIAN: Mr. Jordan, I don't have it and co-counsel doesn't have and that is why I said, no. What was exchanged was a May, 2000 something record. His handwritten notes for that. You had him elicit testimony about his first visit in April of 2001 and that was not exchanged -- THE COURT: I heard enough. MR. TERZIAN: -- in the disclosure. Please, don't miss characterize my objections. THE COURT: We'll adjourn to lunch. (Whereupon, a luncheon recess was taken.)

-AFTERNOON SESSION - COURT OFFICER: Jury entering. (Whereupon, the jury entered the courtroom.) THE COURT: Ask the doctor to come back to the witness stand. Good afternoon, members of the jury. We're going to continue with Dr. Weingarten's testimony. THE CLERK: Doctor, you are reminded you are still under oath. THE WITNESS: Yes. MR. JORDAN: May I proceed, Your Honor? THE COURT: Yeah, please. MR. JORDAN: Thank you. DIRECT EXAMINATION BY MR. JORDAN: Q Referring to your office records you have already testified as to an initial visit with Professor Diaras-souba. Can you look at your records and tell us how many more visits he's made to your office for treat-ment? A One second. Four more, four additional visits. Q Are you able to tell us what the dates of those visits were? A Yes. The next one was 4/23/01, 7/16/01, 5/28/02 and 4/3/03. Q Doctor, was there any improvements in the patient's symptoms during that period from your first visit with

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him to your last? A Well, on the first visit I started him on medication and that medicine seemed to have improved some of his symptoms since I have seen him on subsequent visits, but after that initial improvement, he has re-mained basically the same in terms of what he com-plains about. Q What was that medication? A It's drug called Maxasill or Maxselatene. Q For what do you normally prescribe that? A Well, it's original use was for people with heart irregularities, irregular heart rhythms. It has been used on those patients initially, but we discovered over the years for neuropathic pain syndromes it does have benefits, especially when other drugs have failed to work in terms of improving the symptoms. Q Thank you. Doctor, in addition to anything you have reviewed, I am going to ask you to assume certain facts that have been elicited through the testimony and other evidence in this case so far. After I ask you to assume those facts, I am going to ask you some opinion questions regarding those facts. And any opinion you state should be to a reasonable degree of medical certainty. I am going to begin to ask you to assume on June 5th, 1996 Mr. Diarassouba underwent tibial osteotomy of his left knee. I want you to further assume that at that time he was 6 foot 4?? and 174 pounds. And that the surgery began approximately 11:20 a.m. and that it was performed while the patient was in the hemi-lithotomy position. That the attending surgeon was Dr. Urban. That the first attending anesthesiologist was Dr. Spencer Lu-bin.

And that somewhere between 4:00 and 5:30 p.m. Dr. Kentaro Horiuchi took over as the attending anesthe-siologist. I want you to assume even further that the right leg, it was in a padded leg holder with gel padding added and that the right leg was wrapped either in an ace bandage or in an anti-embolic stocking, which covered all or part of the patient's right calf. I want you to further assume that the right leg was not moved after the surgery started until, approximately, seven o'clock. And that the surgery ended at, ap-proximately, 8:30 p.m. And that upon waking up from surgery, the plaintiff complained of severe pain in the right calf. Finally, I want you to assume that the hospital chart contains a note indicating that in the Recovery Room it states that the calf pain is due to the patient's posi-tioning during the surgery. I am going to ask you if you have an opinion to a reasonable degree of medical certainty as to whether any of the defendants departed from good and ac-cepted medical practice? MR. TERZIAN: Objection. MR. MAHON: Objection. THE COURT: Sustained. Departed by doing what? Q Doctor, do you have an opinion to a reasonable degree of medical certainty based on the facts I have asked you to assume as to whether any of the defen-dants departed from good and accepted practice dur-ing their care of the patient during the surgery? MR. TERZIAN: Objection. MR. MAHON: Objection. THE COURT: Sustained. The same thing. Step up. MR. JORDAN: I am trying to avoid leading. Your

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Honor. Do you want me to spell out the departure, I'll do that. THE COURT: Yeah, of course. (Whereupon, a sidebar was held off the record.) Q Doctor, I'll rephrase the question. Again, based on the assumptions that I provided to you, do you have an opinion to reasonable degree of medical certainty as to whether any or all of the de-fendants departed from good and accepted medical practice by failing to reposition the plaintiff's right leg during the course of this procedure? A Yes, I do have an opinion with a reasonable degree of medical certainty that the defendants did depart from the customary practice of requiring repositioning and moving of the extremity during the surgery in order to avoid the complications that occurred the-reafter. Q Now do you have an opinion to a reasonable degree of medical certainty as to whether the defendants departed from good and accepted practice by failing to use a venous compression device on the patient's right leg? A Yes, I do. Q What is that opinion? A With a reasonable degree of a medical certainty I can state that the failure to use a venous compression device on the patient's right calf in this instance de-parted -- was a departure which led to the formation of a deer thrombosis, which occurred postoperatively. Q Now in your opinion with this type of surgery, often should the leg be repositioned, the nonoperative leg? I am sorry. A The nonoperative leg should be repositioned probab once every one to two hours. Q The decision as to whether to reposition, is this something that should be decided upon by the surgeon

or by the anesthesiologists or by both in a shared re-sponsibility What is your opinion on that? A Well, obviously, the repositioning would occur during the surgery so, you know, as a courtesy, the surgeon should be alerted to the fact that the non-operative leg in this case is going to be moved under the drapes so that he he's not up to a critical portion of the surgery, he could stop what he is doing, allow that to happen and then proceed further with the surgery. So it is a shared responsibility between the surgeon and the anesthesiologists. Q How is it that this repositioning should actually 1 done? A Well, someone whose not scrubbed in to the surgery and therefore is not considered sterile would go under the drapes, expose the non -- in this case, the non-operative leg. You know, look at it, reposition it, you know, move it and reposition it and then, you know, come out from under the drapes and go back to his position in the Operating Room. Q Now what is your opinion as to whether reposi-tioning the leg by going under the drapes would pose a risk of infection to the patient's operative leg, if any? A Okay. The operative leg, for the benefit of people that don't ordinarily go in to an Operating Room, is draped in such a way that it's an entity among -- in and amongst itself in that the operative field, it is maintained ste-rilely. It is isolated from the rest of the body. That's why sterility is maintained. The rest of the body is non-sterile, okay. It's not been prepared. It's not been draped. It's under -- in this case, the nonoperative leg is under this draped tent, if you want to call it that. So by going under the drape, the tent where -- which is separated from the other leg, you will not expose the sterile field to any sort of contamination. It is very possible to move, you know, a nonoperative extremity, in this case, the leg, without affecting the sterility of the operating field.

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Q Why is it important to reposition the nonoperative leg every one or two hours? A Well, the reason why we like to reposition the leg is so that there isn't any one portion of the leg that re-mains exposed to a hard surface for a long period of time. Any surface, even a soft surface, can become a hard surface, you know, over a period of time. It also induces venous return to the heart. So the blood in the leg that has accumulated there over time, which is stagnated, you know, will move, will return to the heart and thereby, you know, one avoids both nerve injuries as well as accumulation of stagnated blood in the leg, which could lead to venous thrombosis, a deep vein thrombosis. Q I want you to assume there's been testimony by a Dr. Horiuchi that there's a relationship between the length of time of the surgery and the risk of developing a deep vein thrombosis. Do you agree with that position. MR. MAHON: Objection. MR. JORDAN: I'll rephrase. Q Doctor, in your opinion is there a relationship be-tween the length of time and the risk of developing a deep vein thrombosis? A In terms of the length of time, I assume you mean the longer length? THE COURT: The duration of the operation. A The duration of the operation? Q Yes. A The longer the operation and the longer, you know, the longer a particular part of the body remains un-moved and in the same place, the more of a risk you have for both a nerve compression or nerve injury and formation of the deep vein thrombosis.

Q Now I just want to touch on one other topic because the jury has heard up until now testimony in which some amount of pressure on the leg in the form of a stocking or an ace bandage is actually helpful in the prevention of DVT. You've stated that if the leg is not moved for a long period of time, there can be undue pressure on one area and that can actually increase the chance of DVT. I am just going to ask you if you would explain in accordance with your opinions the relationship be-tween pressure and the formation or prevention of DVT? A Well, again, undo pressure which is transmitted, you know, to a distal part of an extremity, you know, which is, you know, what, you know, what this case is involving will prevent blood from returning to the heart, okay. Because if you exceed the venous pressure, if you override the venous pressure, which is the pressure of the blood going back to the heart, you will prevent that blood from going back to the heart and, therefore, that blood then stays in an extremity for a long-- for a given period of time and the longer the period of time that that blood stays there, the clotting factors of the blood become active and the blood is more prone to clot because of this pooling affect, which is related to the pressure that's, again, preventing the blood from returning to the heart. Q Doctor, I'd like you to assume some further facts. I want you to assume that following the surgery, im-mediately following the surgery on June 5th until the discharge of the patient on June 11th of 1996 that the patient experienced pain and swelling of the right calf; that on June 7th during that admission, deep vein thrombosis in three veins were found in the calf via a Doppler; that on June 11th there is a notation of numbness in the patient's right lower extremity; that at, approximately, June 20th the patient began expe-riencing shooting pains from the calf to the foot and in the foot specifically complained of electrical shock type pain, burning in the heel, toes, top and bottom of foot and also numbness of the foot; that on June 10th there was a consult arranged with, I mean, on July 10

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there was a consult arranged with Pain Management wherein they formed an impression of neuropathic pain, questionable nerve compression injury and rule out causalgia; that on July 12 there was a further Doppler study done showing that the deep vein thrombosis in the right calf had resolved; that two days later on June -- July 14th the patient was admitted to the hospital and the next day paresthesia of the right calf were noted and the patient underwent a sympa-thetic nerve block; that the nerve block was only ef-fective for, approximately, an hour; and that on July 17th the patient underwent a second nerve block and was discharged the following day. And further that on July 23rd, five days after that discharge, the patient underwent a fourth -- I am sorry -- a third sympathetic nerve block. And that on July 25th the patient underwent a neuro-logical consult. The impression of which was a sciatic nerve injury with damage due to compression and that the patient was examined on that day. In addition to his complaints of pain was noted to have pigment changes and hair loss in the right lower ex-tremity. And in the reason for the consult indicated by Pain Management, who arranged the neurological consult, there is a statement: Causalgia and nerve injury sec-ondary to positioning. I want you to further assume that on July 29 the patient underwent a fourth nerve block and that on August 2nd there was an MRI of the right calf taken, which showed a mass in the right calf six by six by eleven centimeters with areas of dead muscle tissue. That following the nerve blocks, over time there was some improvements in the patient's symptoms throughout 1996 in the sense that the pain became intermittent. I want you to further assume that the patient has tes-tified he had no prior nerve injury to the right calf or leg before the surgery and felt no unusual pain or symptoms in that leg. I want you to further assume that after the surgery and after he was discharged on June 11th, he testified he

was at home mainly in bed. I want you to further assume there is no evidence of any trauma or injury to the patient's right calf or foot following his discharge from the hospital until the time that he reported burning pain in his foot. With those assumptions I would like to ask you whether you have an opinion to a reasonable degree of medical certainty as to whether the failure to reposi-tion Mr. Diarassouba's right leg during the surgery of June 5th was a competent producing cause of the nerve damage and symptoms that he has experienced in his right calf and foot following his discharge from the hospital in 1996? A I can say with a reasonable degree of medical cer-tainty that the failure to reposition Mr. Diarassouba's right leg contributed and was the direct cause of all the facts that you have alluded to and the progression of time which these symptoms have occurred over, they all result back and date back to the intraoperative period of his surgery. Q Just briefly you may have covered these principles already regarding the importance of repositioning, briefly what is the basis for your opinion regarding the causal connection of the failure to reposition and the patient's injury? MR. TERZIAN: Objection, asked and answered. THE COURT: No, overruled. I'll permit it. A Okay. Q What is the basis for your opinion? A My basis for coming to the conclusion that I have come to is the fact that, you know, it's been stated in the chart that Mr. Diarassouba's leg was left untouched and not moved for at least seven hours and possibly up to ten hours, okay. It's very hard to determine exactly what the time frame was, but it is somewhere in that range of time. We've always been taught as anesthesiologists that you can't leave a limp in one position for such a long period of time.

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And, generally, we tend to try not to do it for more than two hours. If we're good, we'll try to move it every one hour, two hours, but two hours is usually what we try to move it at. So that seven hours at a minimum or ten hours is certainly a lot longer than two hours. So there was a lot of time that was -- that past by where that leg was not moved, where those nerves in the leg were exposed to the surfaces that the leg was leaning against. So, you know, it just comes as and it shouldn't come as a surprise that these nerve injuries occurred because there was no gray area of any reversal for any -- for the leg to escape injury because seven hours or ten hours, there is no article written that allows that amount of time to go by without repositioning the leg. Q Now, doctor, is the fact that the patient did not -- is not noted to have reported any burning or electrical type of pain until, approximately, two weeks after his discharge, in that opinion is that in any way inconsis-tent with the causal relationship that you've just de-scribed? A Not at all. As I might have stated earlier, neuropathic pain or reflex sympathetic dystrophy usually evolves over a period of time. It usually -- It doesn't immediately follow whatever traumatic event is responsible as the causal factor. These symptoms evolve over time. Usually, you know, days to weeks later is not an unusual amount of time to pass from the time of the onset of the nerve injury until the manifestation of the full blown affect and all of the symptoms associated with the disease process. So I am not surprised that two weeks went by before he started having the burning and shooting pain. Q Thank you. Doctor, have you written any reports regarding this case?

A Yes, I have. Q Was it one report or more than one report? A It was two reports. Q Why did you write two reports? A Well, in my original report, again, I am not familiar with everything related to the legal processes of how malpractice cases go, but I originally wrote the orig-inal report to include both the medical conditions of the patient and how his medical condition has evolved over time as well as the malpractice aspects, you know, that the patient is involved with. I was then asked to change the report to only reflect his medical condition and the updates on his medical condition and save the portion that pertains to the malpractice aspect of his care to a later report. So I did change the report to separate those two con-ditions. MR. MAHON: Objection. MR. TERZIAN: Objection, also. THE COURT: That's his answer. Q Now -- MR. MAHON: May I approach? THE COURT: Just so the record is clear what are the dates of these two reports? THE WITNESS: I have one report on me. THE COURT: Where is the other report? THE WITNESS: I have it here. He has it over there. THE COURT: Are both of these reports reflected in your office records? THE WITNESS: I did not put the second one of the

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reports as part of this chart. I have the report of June 16, 2002. MR. TERZIAN: That's all we have. MR. MAHON: That is what we have. MR. JORDAN: I think the earlier one was exchanged, Your Honor. MR. MAHON: Your Honor, I don't have the earlier report. THE COURT: I am sorry, will the jury step out, please. (Whereupon, the jury exits the courtroom.) MR. JORDAN: Your Honor, I almost hesitate to ask the defendants which report do they claim that they have? MR. MAHON: We have one report. THE COURT: Everyone knows that they have the report of June 16. We went through this this morning. Mr. Jordan. MR. JORDAN: That came in with the office records after. THE COURT: Well, where is the other report? MR. JORDAN: The first report. THE COURT: You didn't even allude to it this morning. MR. JORDAN: What's that? THE COURT: When I went through this morning at ten o'clock and it's now five to 3:00, you didn't even allude to the fact that the doctor had written a second report. I still don't know if the second report is before the report of June 16 or after the report.

When was the other report written, doctor? THE WITNESS: I don't have it in front of me, so I can't tell you. MR. JORDAN: Your Honor, I would like counsel to quit snickering and, perhaps, actually share with us at some point what they claim they either have or don't have. THE COURT: Mr. Jordan, we went through this a hundred times this morning. MR. MAHON: I have the report, the one report we have been discussing dated June 16th. The only report that I have. I never heard of a second report. MR. JORDAN: Your Honor, my records reflect that a report was sent earlier. But even assuming it wasn't, the defendants are now claiming that they have the more inclusive report, They have the more inclusive report. THE COURT: How would anyone know that? How would any human being sitting in this courtroom at this moment know whether they have the more inclu-sive report or less inclusive of the reports as the author of the report doesn't even know when he wrote it or what it said? We are not mind-readers in here and the doctor doesn't know what was in the report. He doesn't know which one was which. Where is the other report, Mr. Jordan? MR. JORDAN: I believe, I have a copy of the [Note: Pages 741-783 missing in original document] MR. TERZIAN: I have no problems with him testi-fying as an expert. I have a big problem with him testifying as a treating physician. MR. JORDAN: I think I already covered what medi-cation he is on.

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THE COURT: Well, you jumped up and down screaming he was only on one medication. I guess, you covered it. Bring them in. Let's go. COURT OFFICER: Jury entering. (Whereupon, the jury entered the courtroom.) THE COURT: Continue Mr. Jordan. DIRECT EXAMINATION BY MR. JORDAN: Q Doctor, who referred the patient to you? A The patient was referred to me by Mr. Jeffrey Ko-rek. Q Is that an attorney? A Yes. Q How do you know him? A I met Mr. Korek because one of my patients who had been -- who I was treating for injuries related to a motor vehicle accident used him as an attorney and because of that particular patient, we became friendly he sent Mr. Diarassouba to me for treatment. Q Has he ever referred any other patients to you? A No. Q Doctor, I want you to assume that Mr. Diarassouba has in addition to anything contained within your examination of the visits to your office, that he has testified that currently he has numbness on a perma-nent basis in his calf and that he also has pain, shoot-ing type pain in the right foot that comes, approx-imately, 15 to 20 times a day; that he has seen some improvements on the medication that you've given that he uses particularly before going to sleep at night to the extent that now pain only infrequently interrupts his sleep at night whereas previously that had been a

more serious problem; that he also has weakness in his leg and in his foot; and that he has stiffness in his big toe. And I am going to ask you whether these symptoms in your opinion represent a permanent condition? MR. TERZIAN: Objection. MR. MAHON: Objection. MR. TERZIAN: I don't believe that is the testimony, certainly, as to the current condition. THE COURT: Well, ultimately the jury will remem-ber. I'll permit it. A Can you just ask me the question again? I am sorry. Q Yes. The descriptions that I gave to you of what the plain-tiff has testified to -- A Yes. Q -- as to the nature of his symptoms, in your opinion does that constitute a permanent condition? A Yes. These symptoms have been with him for many years. You know because of nature's way, the chances of him having any further recovery from these symptoms in terms of improvements are probably near zero because he has chronic pain for years already. We have gotten him some minimal improvements with this particular medication, which I mentioned before. He's had the many procedures early on in the course of treatment that would have been if they were going to work, they'd have worked early after the onset of these symptoms. So that now seven or eight or nine years later, the chances of him recovering any more function are probably zero. Q Now I am going to draw you to a portion of your

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report that discusses the December 26 admission by the plaintiff. Do you have that? That should be on -- let's see. THE COURT: Admissions at Downstate. A Oh. Q Admission at Downstate, yes, on page three. A I don't have that. You have it. Q I'll hand you up a copy. A Okay. Q On page three regarding 12/26. A Okay. Q Do you see where you refer to proprioception of the great right toe? A Right, yes. Q Now you write, am I correct, he was noted and found to have excellent proprioception on the right great toe and decreased pin prick and light touch be-low the knee on the right side. Do you see where you write that? A That's correct. Q That is what you wrote. Do you have a copy of the -- There is a black binder in front of you to your right, okay. The information in your report was drawn from a particular part of that binder, which has the admis-sions. I would like you to turn to page 292, which is all the way toward the back. A I have the page. Q If you look at the middle of the page where it refers

to exam and you read that, can you tell me whether your report was accurate in terms of what they found on that exam? A They found absent proprioception of the right great toe. Q So when you say excellent proprioception, it should be absence? A The typist obviously misheard what I spoke in to the speaker. Q What's the significance in conjunction with a find-ing of diminished pin prick, which I believe is abbre-viated PP with a arrow down, light touch abbreviated LT below knee on right, what is the significance of a finding of absence proprioception along with dimi-nished pin prick and light touch? A Proprioception, pin prick and light touch are all related to the sensory nervous system. For the benefit of people that may not be aware pro-prioception is knowing the direction of a toe, a finger, an arm so when you close your eyes you can imagine where your toe, where your finger is pointing to be-cause of a sensation of the body that's built in to it called proprioception. It is like a guidance system. We know what parts of the body are pointing in which direction. So absence proprioception, absence light touch, ab-sence pin prick, are all functions of the sensory nervous system. They are all indications that different fibers of the sensory nervous system are not working. So you don't feel pin prick, you don't feel the touch of a tiny pin. You don't feel a light touch. You don't know where your limp or in this case where your great toe is pointing to. So it's indicative of a nerve injury. Q Particularly in light of this finding, what is your opinion concerning the relationship if any between the stiffness that the plaintiff reports in his right big toe and his RSD nerve injury? A Can you ask me that again? Q Yes.

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A Okay. Q In your opinion, first of all, let's find out if there is one. Is there a relationship between the stiffness he reports in his great right toe and his nerve injury? A There may or may not be a relationship. Stiffness could be from arthritis. Stiffness of a joint is usually related to an arthritic condition. RSD can cause loss of movement of a joint. I've never seen it just in, you know, just in one little joint like a great toe. Usually, if you are going to loose the use of a joint, it's a big joint. It's usually an elbow, ankle. It's usually a couple of toes. I never just seen it, you know, slated to one toe, but again stiffness could be from a lot of different things. Q In that motor exam it also mentions five out of five all four extremities. Do you see that? A Yes. Q That's back in December of 1996 when you saw the patient you found -- did you find five out of five everywhere? A No. Q Five out of five meaning on the strength on the scale of five, what did you find? MR. TERZIAN: Excuse me, Your Honor. Objection. When he saw the patient when? THE COURT: Right. MR. JORDAN: The first time.

A I would like to refer back to my notes so I can give you an accurate assessment. Q Sure. This is your very first visit. A My very first visit on 4/2/2001 I found that his motor functions, his strength was diminished in terms of right knee flexion. His right foot, both flexion and extension at the foot was, you know, was diminished. Also, he had diminished motor functions in the flexion and extension of his right toes. That was on the right side. On the left side he had complete -- completely good and full motor functions. Q In your opinion, what is the cause of him having the right foot flexion and extension, weakness and also the weakness with the toes? A Well, again that goes along with, you know, a motor nerve problem and the muscles are affected when the nerves are affected. So nerve injury eventually can affect muscles. MR. MAHON: Objection. MR. TERZIAN: I have to approach. THE COURT: No, overruled. MR. TERZIAN: Your Honor, then I ask all of his testimony be stricken because -- MR. JORDAN: Your Honor, if there is going -- MR. TERZIAN: It's not a damage claimed. THE COURT: It's overruled. MR. TERZIAN: I believe there was a representation about no foot dropping in this case. THE COURT: I didn't hear anything about foot drop-ping. He said that nerves can affect muscles.

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THE WITNESS: Right. THE COURT: Go on, ask a question, Mr. Jordan. Q Doctor, what would be your explanation as to why he would be five out of five back in December of 1996 and now at the time that you see him in 2001 he would have some weakness in those areas? Is that consistent with RSD? Would you explain how that would hap-pen? MR. TERZIAN: Objection, leading. THE COURT: The form is terrible, but explain the discrepancy between the test in December and test you performed. A Okay. Well, you know Mr. Diarassouba had a chronic pain syndrome involving his right lower extremity. As a result of this pain syndrome, you know, most patients with pain tend to favor the area where there is no pain. So in this case it would be left lower extremity. As a result he, by not making full use of the right lower extremities, the muscles in those -- in that extremity may not function to their full capacity and over time you can get weakness just from lack of use. So if he is favoring his left lower extremity and there is a long period of time from December 2006 to April when I saw him -- excuse me -- December of ‘96 to April of 2001, you know, for many years of him not using that lower extremity to its fullest extent, you can certainly get loss of muscle tone thereby leading to weakness. Again, whether it's directly related to the nerve injury, to a nerve injury, I can't say for sure, but over time you can get weakness simply for not using the extremity to it fullest potential. Q Doctor, I want you to assume a reference in a medical record regarding a healed ulceration on the medial part of the patient's right leg that he's had since childhood. Have you had occasion to see that partic-ular healed ulceration? A Yes, I have.

Q What part of the leg is it on? A It's on the medial aspect of his right shin. THE COURT: For the benefit of Court and jury, de-scribe what you mean by that. THE WITNESS: Okay. In other words, his ulceration is on the inner part of the front of his calf or what we call the shin, okay. Q In more simple terms, is it the front of the leg or the back of the leg? A Oh, it's more toward the front of the leg. Q In your opinion, doctor, could this ulceration have any relation to his nerve damage? A No. Q Now you've talked about and mentioned it's a per-manent injury, a permanent injury that the plaintiff has. What are his treatment options for this type -- for reflex sympathetic dystrophy, for this type of injury, at this point? What are his treatment options going in to the future? A His treatment options basically consist of better pain medicines as they become available with less side effects. And, hopefully, in the future, he's a young man and, you know, he lives through a time when better pain medicines become available that don't have the side effects of our present day medication. Certainly, continuing on Maxasill. That is helping him at this point. I would keep him on that until something better comes out. Although he is doing well on Maxasill, I would probably encourage him to try to use it during the day also.

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But there isn't any nerve blocks that I can -- there isn't any nerve blocks that will reverse numbness, okay. Pure numbness is a permanent situation. Numbness itself means that the sensory nerves are dead and that's what we call numbness. I don't think his numbness is reversible because it's been present for so long a period of time. So that a lot of what he has now, unless they invent a way to regrow nerves, I can't imagine that he's going to get rid of his numbness, but I think we can do a better job on his pain as these new drugs become available. Q Just so we're clear, doctor, as the state of medicine stands today, there are no surgical options for him, are there? A No. MR. TERZIAN: Objection. MR. JORDAN: I have no more questions. THE COURT: We're going to adjourn until Monday. We'll adjourn until Monday. Do not discuss the case. We will return here Monday at 10:00 a.m. We'll con-tinue with the testimony at that time. So have a plea-sant weekend. We'll see you on Monday morning. (Whereupon, the jury exits the courtroom.) (Whereupon, the trial adjourned to July 14, 2003.) It is hereby certified that the foregoing is a true and accurate transcript of the original stenographic mi-nutes in this case. Before: HONORABLE MARSHA L. STEIN-HARDT, Justice, and a Jury APPEARANCES: GERSOWITZ, LIBO & KOREK, P.C. Attorneys for Plaintiff 111 Broadway

New York, New York 10006 BY: CONRAD JORDAN, ESQ., of Counsel BARTLETT, McDONOUGH, BASTONE & MO-NAGHAN, LLP, Attorneys for Defendant William Urban, M.D. 81 Main Street White Plains, New York 10601 BY: CHRISTOPHER A. TERZIAN, ESQ., of Coun-sel MORRIS, DUFFY, ALONSO & FALEY Attorneys for Defendants Spencer Lubin, M.D. and Kentaro Horiuchi, M.D. 2 Rector Street New York, New York 10006 BY: KEVIN F. MAHON, ESQ., of Counsel HANK HOROWITZ, CSR, RMR MICHELLE GONZALEZ Official Court Reporters THE COURT: Mr. Diarassouba, why don't you come back on the witness stand. We'll continue with the cross examination. MR. JORDAN: Your Honor, before we proceed with the plaintiff. THE COURT: Jury is standing in the hall. What is it. MR. JORDAN: I want to mark some exhibits as court exhibits and I'm going to make a short motion for sanctions. We were-- THE COURT: That's denied. Motions for sanctions, I

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don't want to hear it. I don't do sanctions in this part. MR. JORDAN: I'll put this motion on the record. We were pushed to the point of a mistrial on Friday be-cause the defendants claimed that the report from the doctor, which was slightly shorter than the report that was in his records, which he testified was a narrative on the physical condition, the defendants claim they never got that narrative. And we went on and on and on about this, and I told the Court I couldn't believe that a narrative would not have been exchanged in this case, or that if the defendants didn't get a narrative, nothing would be done. Turns out the narrative, the report that the defendants claim they didn't get was served August. THE COURT: They said they got the narrative. That's not what they said. They got the narrative. They said that when the testimony went on the record that the doctor prepared two reports, they didn't get the other report. Be it the first one or the second one, no one knows. MR. JORDAN: Your Honor, but the fact of the matter is -- THE COURT: Mr. Jordan, we went through this on Friday. We are still on trial. If you provoke me further, then there will be a mistrial because of your conduct. Enough already. I want to finish this. The colloquy in this case is about a thousand pages and the testimony is about three. I heard enough. I'm not interested at this moment in anything you have to say with regard to this issue. You have something new you want to tell me, go ahead. We addressed this on Friday. MR. JORDAN: I just want the record to reflect the defendants got both reports, the first one August 29th 2002, the second one May 5th 2003. THE COURT: You can't reflect that they got it. All you can reflect upon is that you mailed it. MR. JORDAN: Your Honor, they put it in their mo-tion. They put it in their motion as an exhibit. The report they claim they didn't get. So I can do more than that. And I don't know why they would represent to the Court that they didn't get something that they made an

exhibit in their motion. THE COURT: So it's your position that both reports by the doctor are reflected in the motions made by the defendants. Is that what you're telling me? MR. JORDAN: I'm telling you that the report that the defendants claimed they didn't get -- THE COURT: I asked you a simple question, yes or no. Are you telling me that both reports are reflected in these motion papers? MR. JORDAN: No, because the first motion is what caused them to get the second report, but they got both reports. They got-- THE COURT: Let me see these motion papers. I see one report here. MR. JORDAN: Your Honor, I keep informing the Court they are the same report, except the narrative that was exchanged is not contained in malpractice language strict narrative. THE COURT: Is there some reason you're standing on top of me? Did somebody invite you over here? MR. JORDAN: No. THE COURT: So step behind the desk. COURT OFFICER: Counsel, step back behind the desk. MR. JORDAN: There are only two reports, but they are the same report. And then we went through, this one's a narrative. THE COURT: Why are you repeating this? I really don't want to hear anything further. Do you have something else? We continued with the trial, didn't we? I fashioned a remedy that I thought was fair and equitable to everyone. If you have a problem with that, then the case will be -- MR. JORDAN: I don't have a problem.

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THE COURT: Then what are you talking about? MR. JORDAN: I have a problem with -- THE COURT: Take it to the Appellate Division. I'm ready to get jury. MR. JORDAN: -- there have been various junctures at which the defendants have reported that they didn't get things that they did get. COURT OFFICER: Jury entering. THE COURT: Good morning, members of the jury. I trust you all had a pleasant weekend and you're ready to continue. As you recall, on Friday we had con-cluded the direct examination of Dr. Weingarten, and we are [Note: Pages 801-878 missing in original document] (AFTERNOON SESSION) COURT OFFICER: Jury entering. THE COURT: Good afternoon, members of the jury. Please be seated. As you recall, I mentioned that we were expecting Dr. Weingarten to return this after-noon and lo and behold, here he is, so we are going to continue with the cross-examination. Mr. Terzian, if you would. CROSS-EXAMINATION BY MR. TERZIAN: Q Good afternoon, Dr. Weingarten. If you don't un-derstand a question, please let me know. I will try to rephrase it. Doctor, I am going to try to understand what you said on Friday. If I understand correctly, you're saying that a DVT, a deep vein thrombosis, could have caused an RSD in this patient? A Yes, I did. Q Okay, and the RSD also has some neuropathic pain

component, you said that also? A Well, neuropathic pain is a more broader term for reflex sympathetic dystrophy. Q By the way, you've testified for the plaintiff's firm before, right; you testified about that? A Yes. Q Did you learn about testifying for plaintiffs through a Dr. Alan Bloomberg, do you know who he is? A I know who he is. MR. JORDAN: Objection. That's two questions, Your Honor. THE COURT: It's sustained. Q Doctor, did he operate a referral service for lawyers to find medical experts in particular specialties, did he do that? A I have done work for Dr. Alan Bloomberg in the past and he found me, actually, through a colleague of his, a Dr. Alvrim Lushinsky who was a teacher or mentor for his son, and without soliciting this type of, you know, business, if you want to call it that, he called me and I offered to review cases for him on occasion, and yes, when he sends me cases, I do re-view them. Q Was Dr. Bloomberg living -- he is deceased; is that right? A Dr. Bloomberg died. MR. JORDAN: Objection. Can we get a question. Q By the way, what was the name of Dr. Bloomberg's business? A Dr. Bloomberg was a cardiac surgeon. Q I'm asking what the name of his business was. It had a name, didn't it? THE COURT: If you know.

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A The name of his business is Medical Review Asso-ciates. Q Well, Dr. Bloomberg's deceased, right? THE COURT: He just said that. Q He passed away now, right? A Yes. Q Isn't someone taking over the business? A His son still, who is a physician assistant, still runs the business. Q Now when did you first start reviewing cases for plaintiff's attorneys through Medical Review Asso-ciates, when did you first start doing that? A I started about twelve to fifteen years ago. Q Does that coincide with the time you left L.I.J. in 1991? A It was probably before I left L.I.J. Q And just for the benefit of the jury, L.I.J. is Long Island Jewish/Hillside Medical Center? A Yes, it is. Q That's in New Hyde Park? A Correct. Q So if plaintiff's lawyer wanted to get an expert in orthopedics, he would call Dr. Bloomberg's business, wouldn't he? A Correct. Q If he wanted to get a specialty in pain management or anesthesiology, he would call Dr. Bloomberg's office, correct? A I guess he would, yes.

Q And people like you would be referred cases, right? A That is correct. Q And you were always paid, of course, for your reviews, correct? A I was paid. Q You didn't do it for free? A I was paid for my time that I spent reviewing the chart, correct. Q If you accepted a case that you wanted to review, you'd get paid for it, correct? A Absolutely. Q Of course. I mean, you're entitled to get paid for work, correct? A Right. Q Well, at some point were you making more money testifying, getting cases from Medical Review Asso-ciates. than from practicing anesthesiology? A Absolutely not. I made about probably one percent of my income from reviewing cases and about 99 percent of my income from working in the hospital. I review for Medical Review Associates, just for your information, I review about four cases a year. Q Four cases a year? A Yes. Q When, now, now or fifteen years ago? A Now and fifteen years ago. Q What's the day that you normally come to testify in court, is it Friday, you block that time out to testify? A I testify in court about three times a year.

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Q Is Friday the testifying day? That's what I want to know. MR. JORDAN: Objection as to the form, Your Honor. THE COURT: Sustained. Q Now in 1991 -- by the way, did you bring a C.V, do you have a C.V. here? A It's been presented to the Court on previous occa-sions. Q This Court, did you bring C.V. today; am I unclear? A I did not bring a C.V. today. I brought it the first day I came. Q You brought it on Friday? A I brought it on Monday, which was last Monday. Q Oh, so you didn't bring it on Friday and you didn't bring it today? A I didn't know that people need to see my C.V. every time I come to court. Q All right. Now in ‘91 you left L.I.J, right? A Correct. Q Now you left in controversy, you were forced out of L.I.J., weren't you? A Absolutely not. MR. JORDAN: Objection as to the form of that ques-tion. Q Well, you're saying absolutely not? MR. JORDAN: Objection as to the form. Q Are you saying absolutely not? THE COURT: Well, this is cross-examination, but try to ask one thing at a time.

MR. TERZIAN: I'd appreciate it. Make an objection. Don't just talk. THE COURT: I meant you, Mr. Terzian. Ask one thing at a time. Don't ask compound questions. Q Did you leave in controversy from L.I.J? A Not at all. Q Not at all? Well, do you remember speaking to Newsday in 1995? A I left L.I.J.-- Q Let me ask you something: Do you remember speaking to Newsday in 1995? A I did not speak to Newsday in 1995. Q You did not give them a quote about how you left L.I.J? A I spoke to the New York Times. I did not speak to Newsday. Q Okay. You didn't say that, “As a member of former anesthesiology group of Anesthesiology Associates, I was forced to leave Long Island Jewish Hospital in 1991?” THE COURT: He said it was from the Times. Q Well, in Newsday, August 22, 1995, are you telling me that you did not say from a quote that you were forced to leave Long Island Jewish Hospital in 1991? A You asked me if I spoke to Newsday. The answer is I spoke to the New York Times, to a reporter by the name of Elizabeth Rosenthal, okay. My group was a eighteen member group -- Q I'm not asking you who was the group -- A -- who had served L.I.J. from 1954 to 1991. Because of committee recredentialing --

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MR. TERZIAN: Your Honor -- Q You're not listening to me. MR. TERZIAN: Objection. He's just rambling. THE COURT: Just ask him the question. MR. TERZIAN: If I ask him an open-ended question. I can get an open-ended answer. THE COURT: Ask him another question. Q When you testified last week you went into your own private practice in 1991, the Comprehensive Pain Management Associates, isn't it a fact that you started that in 1991 because you needed a job, you had to get started, right? A Absolutely not. Q You didn't -- A I continued on to Catholic Medical Center in Queens and Brooklyn. I had a full time job there, but I had an opportunity to start a pain management practice because there was available space in my neighborhood and I decided to meet the challenge and meet the needs of the community to do pain management. Q But you didn't start that business until you left L.I.J., correct? A I started it at the same time that I started the Catholic Medical Center. Q You didn't start the business until you left L.I.J; isn't that true? A I started it, actually, a month before I left L.I.J. Q Oh, a month. Okay. It makes a difference. Let me ask you, Doctor, when you were in L.I.J. -- let me take that back. I want to get back to what you said earlier about DVT causing RSD. Didn't you say also last week that DVT causes some type of tissue death, death of the tissue or injury to the

tissue? A That is correct. Q Did you say that? A Yes. Q Would you say that you would agree that gangrene is evidence of tissue injury, of trauma of some sort, correct? A That is an extreme indication of injury, yes. That's a stage of injury to tissue. Q And of course there's a difference between dry gangrene and wet gangrene, but gangrene is gangrene, correct? A Correct. Q And you said, I think, that surgery can be a trauma -- A Yes. Q -- that can cause a DVT, right? A Yes. Q Well, when you were asked to review this case for the plaintiff's attorneys, did they happen to give you the records of the podiatric surgery on the right great toe done by Dr. Cathy N. Hu? A That was not part of my review. Q So you've never seen those, have you? Would it interest you to know on May 9 of 1996, Mr. Diaras-souba underwent a bunionectomy of his right great toe with some additional work done to the fourth and fifth toes? A I was aware of that. Q Did you ever take into account the fact that he had a dry gangrene preop Dr. Urban's surgery on the right great toe, that he had dry gangrene before Dr. Urban operated?

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Now my question to you is, Doctor, isn't it a fact that the gangrene on the right great toe, that could have caused tissue death also and that could have caused an RSD; isn't that true? A Yes. Q It's true, isn't it? A It is true. However -- Q Thank you. Thank you. I mean, it's a fact he had a dry gangrene before the surgery; you can't dispute that it's in the record, you agree -- you reviewed the record, didn't you? A Yes. Q Now you said that repositioning should be done in good practice every one to two hours, okay. You said that, right? A That is correct. Q Now this operation took, I guess, total operative time, the testimony and records seem to indicate, about ten and a half hours, with about seven hours of that the right leg being in a right leg holder; would you agree with that? A I agree with that, yes. Q And in the first hour and a half to two hours from, roughly, I think the testimony was, from roughly 10 o'clock to maybe 11:30 there's various comparisons being done on the right leg to the left leg, arthoscop-ically. Did you read the trial testimony, by the way, do you know that? A Yes, I did. I read the depositions, if that's what you're referring to. Q Oh, you haven't read the trial testimony of the past few days? A I have not.

Q Have you -- A I have not read the trial testimony of the past few days. Q You haven't heard what was said, then, about how the procedure took place, have you, at trial? A At trial, no. Q Let me see if I can bring you up to speed. MR. JORDAN: Oh, come on. Objection, Your Ho??or. THE COURT: Sustained. The jury will disregard that. Q Let me ask you this, Doctor: Are you saying that in a seven hour period where the right leg was in a leg holder, are you saying that that leg should have been moved, under best circumstances, on the hour, every hour, seven times during that seven hour period; yes or no, are you saying that? A I said one to two hours at least three to four times, okay, in seven hours. Q Well, what if the anesthesiologist, trying to do good practice, wanted to do it every hour, you would agree with that, right; you said one to two hours, wouldn't you? A I would have commended him. Q You would have commended him if he moved that leg-- A Yes. Q -- once an hour during the seven hour period it was on the leg holder? A Absolutely. Q You're telling this jury and the Court that the risk of a serious infection, perhaps even osteomyelitis in the nonoperative leg, was not going to be increased if that leg was repositioned and moved seven times in seven

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hours? A I don't understand what you just said, “in the non-operative leg.” We are worried about an infection, is that what you're trying to tell me? Q No, we are worried about infection. A We're talking about nonoperative leg? Q We're worried about infection in the operative leg. You know what I mean. A I don't know what you mean. I want you to explain what you mean. If you explain what you mean, I will listen to you. You told me the nonoperative leg, we worry about osteomyelitis. I don't think that was a problem with this patient. Q Well, you didn't get, thankfully, osteomyelitis, correct? A But you just said to me we were worried about a osteomyelitis in the nonoperative leg. The court re-porter can read it over and we can verify that. Q I misspoke. You got me on that. I misspoke. A So we want -- THE COURT: Mr. Terzian, please just ask the ques-tions. MR. TERZIAN: I want to move on, but he wants to have this verbal fencing. A You're the one that started it. You said the non-operative leg. You said we are worried about osteo-myelitis. I am testifying. I want to be exact in my answer to you, so I'd like the question to be specific and there's -- THE COURT: Just a minute. Assume there was tes-timony in this case that if the nonoperative leg were moved, that it would have broken the sterile field and it would have increased a risk of infection in the plaintiff's left knee where the surgery was taking place. Now go on. What's your question?

MR. TERZIAN: Thank you. Q Now have you ever gone under a sterile field and taken a leg off a leg holder during a high tibial os-teotomy with lateral reconstruction that lasts seven hours plus, have you ever done that; yes or no? A I've never taken it off a leg holder. Q Thank you. A But I've moved it. I've moved it under the drapes. Q You've moved a leg while it's on the leg holder? A Yes. Absolutely. It's very easy to do that. You go under the drapes, you move the leg. It's a nonoperative leg. We're not worried about the exact positioning of the leg in terms of the surgeon, because he's not op-erating on that leg. You move it. You pick it up. You give the blood some time to return to the heart and yes, it is possible to do that, but you've got to make the effort to do it. Q You said a lot there. Let me see if I can digest that. You think that it's easy to do and you can put the leg back in the leg holder in the exact same position? A You don't need to put it in the exact same position. Q Let me finish my question. You're saying you can put that ??g or position the leg back in that leg holder in the same position that the surgeon and the anesthe-siologist took a lot of time making sure it was exactly in the spot that they felt was the safest for the non-operative leg, you think you can just put it right back where it was maybe seven times, you can do that; yes or no? A We're not talking about a very hard maneuver, okay. It's a padded leg holder. It has a large surface area. The leg is picked up. It's moved a little bit so that when it is put back, it's not exactly sitting in the exact pres-sure-pointed area as before and thereby you keep that leg safe, okay. I'm in the operating room for many years and again, I'm not trying to, you know -- I'm not trying to say anything that is a wonder of the world, but going under a drape is not a very hard thing to do on the nonoper-

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ative side. Q Doctor, you're telling us, then, that -- you said, if I understand you correctly, there's no risk of infection to the operative leg, right? A Correct. Q You're telling us it's easier to go under this sheet and move the leg and position it in a safe place? A Yes. Q And you're saying that -- well, Doctor, don't you think, isn't it a fact that this creates a grave, grave danger to the patient, that you could move this body off the operative table? A Absolutely not. Q Well, isn't the belt, the abdominal belt holding the patient on the operative table; yes or no? A The patient's -- Q Yes or no? A The abdominal belt -- Q Yes or no? A It's one of the factors which hold the patient on the table. THE COURT: If you can answer yes or no. THE WITNESS: Yes. Q If you can answer yes or no, I'd appreciate it. A Yes. It's one of the factors which hold the patient on the table. Q And the other factor is the leg holder, right, the leg holder? A Again, it's another --

Q Yes or no, is the leg holder one of the things that holds the body on the table? A Yes. Q And then the operative leg, that's out there and it's free so the surgeon can work on it, right? A Right. Q So you take the leg off the leg holder -- by the way, let me ask you another question: Isn't it a fact that in the position in question in this case, that the patient's hips and buttocks would have been hanging in the air, they would be off the table in the semi-lithotomy position, they're not resting on the table? A Yes, they are. They are resting on the table. They are resting at the edge of the table. Q Doctor, isn't it a fact that they don't want to have pressure on the sciatic nerve, they don't want to have pressure; so if you have it resting on the table, that can cause pressure? A They put paper on the hips and buttocks so that when it does rest on the table, it is resting on a soft area, but the body is not in the air suspended in ani-mation without resting on something. Q I'm not saying that. The back is on the table; is that correct? A The buttocks and the hips are against the table. Q Against the table, Doctor? A Are on the top of the table, on the mattress of the table separated by some padding which protects the hips and the buttocks from injury. Q So you're telling us that there's no danger of the patient falling off the table if you take a nonoperative leg off the leg holder and you move it around a bit? A There is a table supporting the patient and the pa-tient's weight and body is resting on that table, so their taking the leg off of the leg holder will not put the patient in any danger of falling off the table.

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Q And Doctor, you don't think that by doing this ma-nipulation even seven times in seven hours, that that could move the operative field for the surgeon? I mean, the surgeon's doing delicate surgery on the knee. He wants that leg in a certain position. Don't you think that moving the leg around is going to possibly move that operative area; yes or no? A No. Q Of course, you didn't read the trial testimony, so you didn't hear about Dr. Urban explaining how important it was to keep that leg in position, right? MR. JORDAN: Objection, Your Honor. He said he read the deposition testimony. THE COURT: Sustained. Q And you have never, of course, operated; you don't know what operating on a knee is, correct? MR. JORDAN: Objection. THE COURT: Sustained. He is an anesthesiologist. Q You're an anesthesiologist, but it's fair to say you never performed surgery? A I never performed surgery, but I have observed many knee operations over the course of my career. Q Doctor, you would agree that risk of a DVT is a risk of any general surgery; you would agree with that, wouldn't you? A I would agree with that. Q And a DVT can come from any extremity? A It could come from any extremity. Q Isn't it true, Doctor, that the risk of a DVT in this case was just as high in the operative leg, the leg that Dr. Urban was working on, as it was in any other extremity; isn't that true?

A Absolutely not. Q Well, you just said that the DVT can incur from any extremity. You're saying that the operative extremity-- A You asked me if there was a higher risk of the operative leg developing a DVT and I answered. Q No, I didn't. I asked you, isn't it the same. A I said it's not the same. It's less. Q You would agree there is a risk of a DVT, a blood clot, a deep vein thrombosis occurring in the leg that Dr. Urban is operating on; you would agree, wouldn't you? A There is some risk, yes, some risk. Q There is a risk that could occur? A Yes. Q And that leg, Doctor, is not on a leg holder, a padded leg holder, is it; yes or no? A It's not on a padded leg holder. Q And you wouldn't think to move that leg, would you, Doctor; yes or no? A That leg is being moved the entire case. Q I'm asking you. You're the anesthesiologist. With your expertise, would you move the operative leg; yes or no? A The surgeon is constantly moving that leg when he's doing the surgery, okay. The leg is not remaining immobile for seven hours during the case -- Q Doctor, we know -- A -- okay. Q We know the leg was moved in the period when the arthroscopic surgery was being done when he was

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comparing the right leg with the left leg to make sure there was appropriate alignment, so that when he started performing the left knee surgery, he didn't make it in such a way it was malaligned from the right, so that the patient would have a good gait. You're aware of all that, right, that would be standard of practice, right? A Yes. Q You've seen lots of knee operations, right? A Yes, I have. Q You're, of course, aware that at the end of the pro-cedure, when this closing occurred, there was another neuroscopic examination for about an hour before the patient came out of anesthesia, so the leg is being moved again, right? A Yes. Q Now Doctor, the leg that's being operated on, are you telling us that that leg could be flexed like this seven times during the operation with the knee open and exposed, are you telling us that that could have been done to prevent a DVT in the left leg? MR. JORDAN: Objection. THE COURT: Sustained. Q You're telling this Court and this jury that the mere fact that the surgeon's operating on the left leg, that he might have to move it, move it to the left, move it to the right, that's enough to prevent a DVT as opposed to your statement that you pick it up off a leg holder and you move it; is that what you're saying? A I don't understand what you're talking about. Q Well, you have never seen an operative leg on a knee surgery moved with any degree of flexion, have you, constantly moved back and forth when the knee is open, have you? A It depends what maneuver they are up to, but during the course of an operation the knee is moved, okay. It doesn't just stay immobile for many, many hours.

They either c??ange the position to look sideways, to go from a different angle. The residents hold the knee in a different direction. All those little maneuvers are moving the knee. Q Doctor, that leg is not on a padded leg holder, is it not, the operative leg? MR. JORDAN: Objection, Your Honor. It's asked and answered. THE COURT: I will allow it. Q It's not on a padded leg holder, the operative leg, is it? You don't know? A Well, it depends on, you know, again -- Q Well, do you know; yes or no? A Well, if it is in a leg holder, they generally pad the leg holder to keep it padded. All leg holders are pad-ded. Q I'm asking about the operative leg. A Right. The operative leg, if it is kept in a leg holder for part of the surgery, it is a padded leg holder. Q Now you would agree that in order to prevent a DVT, you need to have some type of contraction of the muscles within the particular leg, would you agree that you need to have muscular contraction? A Yes. Q And is the purpose of the contraction of the muscles to prevent the blood that's in the vein from pooling, is that the purpose? A Yes. Q And the anesthetic agents that are administered during a surgery, can they affect the venous pressure? A Yes, they can. Q So would you also agree that muscular contraction and expansion needs to have some type of force; in

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other words, somebody walking around, okay, weight on the muscle when a person's walking, that's the type of force we're talking about which should hopefully prevent a DVT, right? A It would hopefully prevent a DVT. Q That's why they tell people on airplanes to get up and walk around, right? A Right. Q The patient is on the operating table and there's no force on that nonoperative leg when you're picking it up off the leg holder and repositioning it, moving it around a few times, is there? A Well, there's gravity. Q I'm asking if there's force, is there force. A There may not be force, but there's gravity. Q There can't be force, right? A Okay, then there is no fort , but gravity is an im-portant factor in returning the blood to the heart. Q Now you're saying “gravity.” You didn't say “gravity” on your direct testimony, right? MR. JORDAN: Objection, Your Honor. Q Let me ask you this: You can't have force because if you were too forceful, the body might fall off the table, correct? A You can certainly have force. It's called a venous compression device. Q We're going to get to that, Doctor. Let's stick to this topic a minute. You couldn't pick the leg off the leg holder and move it up and down and backwards and forwards, I suppose, with any degree of force without jeopardizing the risk of the patient falling off the table or the operative field could be jarred; you wouldn't want to do that, right? A That is correct.

Q So let me ask you, Doctor -- by the way, how many times you said you take it off the leg holder, now what exactly is the movement that you do on the nonoper-ative leg, what exactly do you do? Tell us what you do. A You lift it up, okay, so that it's higher than the pa-tient's body, and the blood in the leg will then flow back to the heart. Q Is that all you do -- the leg is at a right angle, right, a right angle? A Yes. Q So there's a padded leg holder like this and the calf is resting on top of the leg holder, right? A Yes. Q So now when you move it, do you actually pick it up off the leg holder? A No. Q Like have it to the side or do you, like, keep it sort of in the channel, what do you do? A What you do is you actually extend the leg at the knee, okay, so that again it's higher than the patient's body and the blood will return to the heart, whatever blood that has accumulated there which is becoming stagnated during the time since the prior moving ma-neuver. Q So, explain to me. I don't quite understand. The leg holder is like a channel, right, almost like a crescent half moon, right? A Yes. Q Like a semicircle? A Yes. Q And it's padded? A Yes.

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Q The leg sits in it? A Yes. Q So when you pick the leg up, does it stay above the leg holder, does it stay above it? A Well, the foot will actually be above the leg holder. Q Okay, and in terms of the alignment of the leg, is aligned directly above the leg holder or is it moved to side or the other? A You can actually just maintain the alignment with the leg holder and then put it back into place. Q Does the back of the knee area touch the leg holder when you're doing this? A The back of the knee should not touch the leg holder and when you put it back into place, you'll obviously make sure that all the pressure points are still padded. You know that the knee is still in a position where it is not in danger of being impinged upon. Q Now who's holding the sheet above the body when you're under it, who's under it? A Usually you ask the nurse to help you. She main-tains the sheet level. She lifts up the sheet a little bit, allowing you to go underneath it. She keeps the sheet in almost like a tent-like position and then you move the leg, put it back into place, come out from under the drapes and she puts the sheet down. Q How high does the sheet have to be held up? A It doesn't have to be held up high at all because the sheet has movability in that it's usually a huge drape so that when you pick the leg up, there's buoyancy of the sheet because it's not a tight sheet. It's just a very loose sheet that's draped around the body, the whole lower body in this case, so that this is not a tight piece of fabric that you have to, you know, loosen up in order to create some give in order to be able to lift the leg.

Q Are you crouching when you do this or are you standing straight up? A I'm sitting on my knees on the floor. Q As a courtesy, you tell the surgeon that you're going to do this before you do it? A Yes. Q And how lung do you hold the leg up like this, how long do you do that? A Probably about a minute, about a minute, minute and a half. Q And you're just holding the leg up and I guess it's not bent anymore; it's, like, straight? A It's extended, yes. Q So is the leg straight? A It's straight. Q Or is it at the knee it's bent: yes or no? A At the knee it's extended and straight. It's flexed at the hip. Q So at this point the patient as you said -- I was going to ask you, it's flexed at the hip, right? A Yes. Q Like on an operative table, right? A Yes. Q And you have the leg up in the air. Are the toes pointing at the ceiling? A Yeah. Q So is that like a 90 degree angle at the hip? A It's probably almost -- it's more than 90 degrees.

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Q So the leg's got to be -- the foot's got to be higher than most of the people standing in the operating room, right, it's got to be above their heads, right? A I don't really take note of that. It's whatever it is, okay. Q Well, when you're doing this now, do you have both hands on the calf? A You have both hands on the calf, that's correct. Q You don't have any hands on in support of the thigh or the buttocks? A You don't need to support the thigh or the buttocks. Q You hold that position for just about a minute, you said? A About a minute, minute and a half, yes. Q Doctor, where is the contraction and expansion of the muscles, where is the contraction of the muscles? You're not doing that, are you, Doctor? MR. JORDAN: Objection, Your Honor. Asked and answered. Q By holding the leg up in the air, Doctor, you're not moving the leg backwards and forwards, are you; yes or no? THE COURT: Let him answer. A There's no active contraction of the muscles. However, gravity will return the blood to the heart. Just like we do that maneuver when we have a cardiac arrest, we lift the legs up. The blood goes to the central pool, which is the heart, and that's what we're inter-ested in so that blood does not accumulate in the thigh and the hip and become stagnated and thereby create a DVT. Q You talked about repositions, didn't you. Doctor? A Yes, I did. Q You did not mention one word about gravity, did

you? MR. JORDAN: Objection. He wasn't asked. Q You didn't say one word about that, did you? THE COURT: Sustained. It depends on what ques-tions that were asked. Q Doctor, you would agree that you don't have the ??ame knowledge of neurology as a board certified neurologist, do you? A I do agree with that. Q You don't have that training, you're not familiar with actually doing EMG's or nerve conduction stu-dies, are you? A I'm familiar with the procedure. I'm familiar with the technique. As far as the wave forms go, yes, I am not familiar with it, but I do look at a lot of nerve conduction studies in the course of my practice. Q In other words, you read them, you read the im-pression on the record -- you can read the impression, right? A Yes. Q You can read whatever somebody else did, right? A Yes. Q Now I want you to assume there was some testi-mony last week that mechanical compression devices were not in wide use in 1996 at SUNY Downstate. Now Doctor, if you assume that fact, would you say that in 1996 the use of mechanical compression de-vices was not the standard of care for trying to prevent deep vein thrombosis; yes or no? A No. Q Well, would you agree that in 1996, mechanical compression devices -- I want to just take that back. I want you to assume there was testimony last week

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that in 1996, mechanical compression devices were just coming into vogue. Would you agree or disagree with that statement? A I would disagree. Q Would you agree then that -- withdrawn. Doctor, if something is not widely in use or widely available, machinery like this mechanical compres-sion device, if that were the case, then you would not be able to use it as part of the standard of care, would you, Doctor? A If it wasn't available? Q If it was not available. A Yes. Q It would not be standard of care? A If it wasn't readily available? Q If it was not readily available. A Yes. Q Thank you. Now you're familiar with anti-embolic stockings and use of Ace bandages? A Yes. Q Now you would agree that the use of an an-ti-embolic stocking or an Ace bandage is to help prevent a DVT? A Yes. Q And you would agree that anti-embolic stockings or Ace bandages try to compress a muscle in some form or fashion; would you agree with that? A Yes. Q So would you agree that if there was no mechanical compression device available at SUNY Downstate in 1996, that the use of an Ace bandage or anti-embolic

stocking would be the next best thing in terms of equipment used in treating a DVT, would you agree? A Yes, if a mechanical device was not available. Q Now you just mentioned before about pressure points and how you would put the leg back down in the leg holder. I believe you testified, and correct me if I'm wrong, did you say that you would try to put it in different positions so there would be different pressure point? A I don't think I said t??at. What I did say was when you lift the leg and then put it back into place, it never lands on exactly the same area of skin in terms of the skin being exposed to that hard surface than before you lifted it up, so there's always a new area that's now leaning against whatever surface you're talking about as compared to before. Q We don't have a hard surface, right, it's a padded surface? A But padded surfaces can become hard surfaces. Q I'm asking you, it's a padded surface; is that correct? A I understand that, but padded surfaces, as good as they are, they can become hard surfaces all the time. Q Doctor, with respect to the leg in this case, the skin was not in contact with the padded surface, was it? MR. JORDAN: Objection. What skin? Q I want you to assume, Doctor -- MR. JORDAN: Objection to form. Q -- there's been testimony there was an Ace bandage used or an anti-embolic stocking. If an Ace bandage was used or an anti-embolic stocking was used, then the skin would not be in contact with the leg holder, correct? A That is correct. Q Now Doctor, isn't it a fact that you don't want a pressure point on the leg, right, you don't want pres-

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sure on the leg? A That is correct. Q You really don't want pressure points, right, on the leg, you don't want pressure points, do you? A That's correct. You'd never want pressure points on the leg. MR. TERZIAN: Can I see the doctor's office chart, please. It was marked as what, Defense Exhibit 6, Plaintiff's 6 or Defense A. Q If you could follow along with your records, Doctor. (Handing.) Q Doctor, you don't have any billing records in your office chart, do you? A No. Q So isn't it a fact that you were paid for your ex-aminations of Mr. Diarassouba by the attorneys representing him? A Absolutely not. We billed his insurance company and my billing service takes care of that, and I really don't get involved with billings and collections on an individual basis. Q So your billing records are not part of your office records? A We have a separate billing company that bills our charges, yes. Q Now you testified last week that you did not review any records before you saw Mr. Diarassouba April 2, 2001, right? A That is correct, other than his history to me. Q Well, isn't it true that you got a letter on March 27, 2001 from the attorneys representing him enclosing documentation for your review in connection with the above referenced matter, and the referenced matter is Professor Mahmoud Diarassouba, you got the records

before you saw him; isn't that true? A I reviewed all of his records after I first met him. I am constantly behind in reviewing things that people send me and there is no urgency to review his records until after I see him. Q You got the records before you saw him; isn't that true? A But I reviewed them after I saw him, yes. Q I'm not asking when you reviewed them. I'm saying, you got the records before you interviewed him, yes? A If you're asking me if I reviewed them, yes, I agree with you. THE COURT: He said he agrees with you. A I agree with you. Q Now Doctor, you have two reports, they are both dated June 16, 2002; don't you, Doctor? A Yes. Q And as far as I can tell, the only difference between these two reports, is some handwritten, it's scribbled over, notes on the first page to the left of the plaintiff attorney's address? A Okay. Q And the last page of that same June 16 report ap-parently has some changes to the “Comment” section, correct? A Yes. Q Doctor, let me ask you a few questions about me-chanical compression devices. Isn't it true, Doctor, that mechanical compression devices have to cover not only the foot but also the calf and sometimes they go up to the hip; isn't that true? A Most mechanical compression devices that are commonly used generally cover the foot and the calf.

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Q Let's go to 1996. Did they cover the foot and the calf? A I believe so. Q All right, and did some models also come up to the hip? A They may have come up to the hip, but generally the ones commonly used cover the foot and the calf. Q And Doctor, isn't it true that mechanical compres-sion device, the way it works, it inflates and deflates the leggings, if that's the appropriate term, they call them “leggings?” A Well, they're actually plastic tubes, if you could call it that, tubular bags that surround the foot and the calf and they create a pressure over a given surface area to cause venous return to the heart. Q Doctor, when you wrote this report on June 16, 2002, didn't you believe that mechanical compression device could not have been used in this case, didn't you believe that? A No, and that's why I made a correction on it. Q Well, did you make the correction before or after you spoke to the plaintiff's attorneys? A I made the correction after I spoke to some ortho-pedic surgeons and actually found out that there was a mechanical device that is available for a unilateral placement on one calf. Q In 2002? A No, in 1996. Q But you had so much experience with so many knee surgeries you didn't know that yourself; I mean, you've seen mechanical compression devices? A Well -- Q You didn't know that yourself; yes or no? Obviously no, right?

A Well, I opted to ask some orthopedic surgeons who use this all the time and I wanted to make sure that my facts were correct. Q You didn't even know if a unilateral device was available in 1996, you had to ask an orthopedic surgeon; you just told us that, right? A That is correct. Q You didn't know what was available in 1996, did you? A I knew exactly what was available in 1996. Q Well, I should take that back. You did know, but didn't you originally write, “Because of the nature of the surgery, one was not able to use a mechanical compression device over both calves to minimize the risks of developing deep vein thrombosis.” Did you or did you not have that statement typed on your letterhead in this report to plaintiff's counsel June 16, 2002? A I did before I made the correction. Q Let me ask you this: There were two reports dated June 16, 2002. When was the real June 16, 2002 report written? A The original report, which is the complete report with the comment, was written June 16, 2002. Q So you wrote another report? A No, no, no. I was then asked to separate the mal-practice aspects of this letter from the patient's -- from a report outlining the patient's general history and health vis-a-vis his leg so that I condensed or actually shortened the original report only to reflect the pa-tient's medical condition, and I was told that the mal-practice aspect of the letter would come in a different document at a later date. So there are two versions of the same report. One is shorter than the other. Q And both nave the same date?

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A Yes. Q And I guess you wrote the second report with this opinion a couple months ago; is that true? A June 16, 2002. Q Are you telling me that you wrote the longer report June 16, 2002 but you didn't hold onto it? A The shorter report was written the same -- you know, was just a shorter version and was from the same date. Q I am aware of the shorter report. I am asking, the longer report which has these changes to your original center, when was that written, when was the addition to that written? A It was probably within two to three days after the report was written. Q It wasn't written a couple months before this trial? A Absolutely not. Q So you had it in your possession? A It's been in this chart ever since June 16 to June 19 or June 20, 2002. Q Doctor, when did you make the change, the handwritten change to the report, Doctor, when you changed your opinion from not being able to use a mechanical compression device in this case to saying you should have used it after you talked to an ortho-pedic surgeon, when did you make that change? A I said it was within a few days after writing this letter June 16 to June 20 or so, the same year, 2002. MR. TERZIAN: I'd like to publish this which is evi-dence to the jury. THE COURT: Go ahead. What do you expect them to read, a four page report now? MR. TERZIAN: No, not the whole report, just the last page. It's i?? evidence.

THE COURT: Mr. Terzian, this is a lengthy document you expect ten people to look at now? We could be here a half hour while they are perusing this. (The document was handed to the jury.) THE COURT: Don't talk about it. Just read it. Madam Foreperson, please don't discuss the document. Just read it. Q Doctor, look at page 3 of your June 16 report. Do you have it? A Yes. Q The second paragraph you referred to, it looks like the middle of the way, also noted “was weakness over the right knee flexors.” Do you see that? A Yes. Q Okay. Now by that statement, do you mean the right hamstring? A Yes, right. Q What nerve provides stimulation to the right ham-string? A I would suspect it's some branches of the sciatic nerve. Q And that would be above the right knee, right? A Yes. Q Doctor, I think I am almost done. I want to see if I am absolutely sure I understand your position. Are you stating, then, that the malpractice was the failure to adequately prevent against a known risk of a sur-gery, a DVT, and that the failure to adequately prevent a DVT by not repositioning the leg, the nonoperative leg, by lifting it off the leg holder every one to two hours during a surgery such as this, caused or, I should say, increased the likelihood of DVT and that this DVT in fact occurred and led to a reflex sympathetic dystrophy syndrome which the patient Mr. Diaras-souba still has today; is that what you're saying?

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A That's part of what I'm saying. That's partially what I'm saying, but not all. Q What else are you saying? A I'm also saying that the failure to move the leg in a timely fashion during the surgery also caused Mr. Diarassouba to have nerve compression injury, okay, which increased -- which was also a factor, which I think led to the creation of the reflex sympathetic dystrophy and the cause of reflex sympathetic dy-strophy, so both that and the DVT were factors that were related to the failure to move his leg. Q Doctor, isn't it true that you did not mention nerve compression yesterday when you were asked direct questions, that nerve compression could have been a causative factor for the development of RSD? MR. JORDAN: Your Honor, he wasn't here yesterday. THE COURT: He means Friday. MR. JORDAN: Well, he said yesterday. THE COURT: Well, we all know what he meant, Mr. Jordan, except for you. MR. JORDAN: Well, I also object to his mischarac-terizing the testimony of that day. THE COURT: That's a different story, but as far as yesterday or Friday, that's overwrought. What's the question, Mr. Terzian. Q Isn't it true that in order to have a injury to nerve compression or even like a cutting of the nerve or damage to the nerve surgically by a touching of the nerve sheath with a instrument, a surgical instrument or by compression of a nerve in some manner, isn't it true you have to have symptoms of that immediately once the injury occurs? MR. JORDAN: Object to the form, Your Honor. Those are two different things he's asking. THE COURT: That's sustained as compound.

Q Well, in order to have a nerve compression, Doctor, don't you have to have evidence of the nerve injury immediately? A No. Q Well, Doctor, wouldn't you agree that a burning, shooting pain, an electrical-type pain is evidence of nerve injury? A Yes, I do. Q And wouldn't you agree that that has to occur within hours or less following a nerve compression in a sur-gery, if in fact a nerve compression occurred, would you agree? A No, I totally disagree. Q Well, you're basing that on what, your opinion as an anesthesiologist, right? A I'm basing it on my career of treating people with chronic pain and in this instance, I think you're refer-ring to symptoms that are related to the reflex sym-pathetic dystrophy and as I have stated in prior testi-mony last week, these symptoms can occur over time and usually they are days to weeks after the injury has occurred. There is no absolute necessity for the symptoms to start right away and most often, again, there is a time delay and no one knows why there is a time delay, but there is a time delay, usually, of days to weeks before symptoms appear if we are talking about symptoms related to reflection sympathetic dystrophy. Q Except we're not. I didn't ask about reflex sympa-thetic dystrophy now. I asked about nerve compres-sion. A Again, nerve compression does not have to manifest itself right away. If you have tissue swelling from trauma slowly compressing the nerve, the nerve is not going to be totally injured immediately. It could take up to days or weeks to manifest itself. Q Doctor, you're basing that as a pain management specialist and as an anesthesiologist, not as a neurol-ogist, correct?

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MR. JORDAN: Objection. Asked and answered. THE COURT: Sustained. Q Doctor, would you agree that an RSD, that type of pain, can it be gradual or should it be instantaneous? How do you see evidence of RSD? MR. JORDAN: Objection to form. In reference to when, Your Honor? THE COURT: I will allow it. Q When did you see evidence of RSD? A Can you rephrase your question. Q Does evidence of an RSD, a reflex sympathetic dystrophy injury, does that occur right away or is it gradual? A It's usually gradually. Q And you mentioned yesterday that the causing factors of that is some type of trauma? A Usually it's some kind of trauma, correct. Q And surgery can be a trauma? A Surgery is a trauma, is one example of a trauma, yes. Q And that would be trauma to tissue, correct? A Yes. Q Now you're saying it's not just trauma to tissue but it's trauma to nerve? MR. JORDAN: Objection, Your Honor. He said there were many causes. MR. TERZIAN: I'm asking. MR. JORDAN: Asked and answered.

Q I'm saying now it can be some trauma to a nerve that can cause an RSD, is that what you're saying now? MR. JORDAN: Asked and answered, Your Honor. THE COURT: I will allow it. A RSD can direct trauma to the nerves-or indirect trauma to the nerves via the tissues. Q Doctor, you've been a defendant before, haven't you; you've been sued before, right? MR. JORDAN: Objection, Your Honor. THE COURT: Sustained. MR. TERZIAN: I don't have any further questions at this time. THE COURT: Mr. Mahon. MR. MAHON: Yes. Thank you, Your Honor. CROSS-EXAMINATION BY MR. MAHON: Q Good afternoon, Doctor. A Good afternoon. Q Doctor, you said that you testify three times a year or thereabouts? A Sometimes two times a year. Q Sometimes four times, sometimes two times? A Three is probably near the maximum that I can remember doing. Q For how many years have you been testifying that many times a year? A Eight to ten years. Q And you said that most of the time you've testified

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it's been on behalf of plaintiffs; is that correct? A Yes. Q If you can give me percentage how many times you've testified for plaintiff versus how many times you've testified for defendant, what would the per-centage breakdown be? A Probably 90 percent versus 10 percent. Q And you said that was over the past ten or twelve years, you said? A Twelve -- ten to twelve years, let's say. Q So could we possibly agree that you testified roughly 30 times; is that correct, 35 times? A That would probably be a lot, but if you say so. Q I'm not saying anything, Doctor. A No, I think it's a lot less than 30. 1 don't think over the years I've testified more than 20 to 25 times. Q Out of those 25 times, let's use that number, you say 90 percent of that time it's been for plaintiffs; is that correct? A Yes. That's what I feel, yeah. Q And are you getting paid for your time in court today, Doctor? A I'm getting paid for my time away from patients, yes, I am. Q What do you get paid for half a day's testimony, Doctor? A Approximately three to four thousand dollars. Q And are you getting paid three to four thousand dollars for this afternoon? A Probably less because it's not a half a day, but I really haven't discussed the fees for today.

Q When you do get paid to testify in court for a plaintiff, is that payment made by the person who ask bringing the lieutenant or is it made by the law firm? MR. JORDAN: Objection. THE COURT: Sustained. Sustained. The jury will disregard that. Q Are there any aspects of your examination of files that you receive payment for directly for the law firms that hire you? A I don't know. Can you rephrase the question. Q If you could refer to your report. There's two reports dated June 16. A Yes. Q One of which has changes made to you by you; is that correct? A Yes. Q Let's look at the one that has the changes made by you on it, if you could, in front of you, and just tell me when you get done. A I have it. Q Okay. On page one of that report on the upper left-hand side it looks like there was something written in and then scribbled out; is that correct? A Yes. Q Is that your handwriting? A Yes. Q Correct me if I'm wrong, but does that say, “Bill $500 plus two and a half hours of chart review?” A Yes. Q Okay. How much do you charge for an hour of chart

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review? A I charge $300 an hour. Q So would I be correct in saying that to generate this report we have in front of us that was changed by you, it cost $500 plus two and a half times 300, so that's over a thousand dollars, Doctor? A Not for the report. The report was $500. Q Okay. In total, how much did you charge for the process of generating this report? A $500 plus the two and a half hours of chart review. Q At $300 an hour? A Yes. Q Who paid you that amount of money -- withdraw that. Did you get paid for this report? A Yes. Q Who paid you that amount of money? A Mr. Korek's firm paid me that money. Q Now let's talk about Mr. Korek. Who is Mr. Korek? A Mr. Korek is an attorney in Manhatta?? who, I guess, originally was asked to represent Mr. Diaras-souba. Q Okay, and I note that you address this letter to “Dear Jeffrey;” is that correct? A Yes. Q Do you write all letters to attorneys with their first names? A I happen to know him, I guess, a little better than most attorneys because, again, we were involved in a previous patient of mine's case and I became friendly with him from the course of that case. So I guess if it's a little friendly, so be it.

Q Do you know the name of that prior patient that you got involved with? A I don't have his name offhand. Q If I were to give you a name, if I were to refresh your recollection, would you recall the name? A Sure. Q Was it a patient by the name of Jeffrey Beecher? A Yes. Q And did you in fact testify for Gersowitz, Libo & Korek on that case? A Yes. I was the treating physician on this patient and I did testify on his behalf. Q Well, let's talk about that case. When you say you were, in other words, you were Jeffrey Beeche??'s treating physician? A Yes. Q It's a yes or no, Doctor. A Yes. Q And when you define what is called a treating phy-sician, was that somebody that came to you first or were they referred to you by plaintiff's attorney? MR. JORDAN: Objection, Your Honor. THE COURT: Sustained. Q Did you speak to Mr. Beecher before he had spoken to his attorney? MR. JORDAN: Objection. THE COURT: Sustained. Q Doctor, did you get paid for testifying at that other trial too, did you get a check from Gersowitz, Libo &

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Korek to testify? MR. JORDAN: Objection, Your Honor. THE COURT: Sustained. I am not going to permit this. Go on to something else. Q Besides testifying, did you also write a narrative report for that firm for that case too? A Yes, I did. Q Did you get paid for that? A I would assume I did get paid for that, yes. Q Now once again with reference to your June 16, 2002 report, Doctor, just so I'm clear, which report was generated first, was it the one with the changes on it or was it the one without the changes on it? A The report without the changes was generated first. Q And was the report without changes on it generated on June 16, 2002? A That's the date that I did it on, yes. (Whereupon, Hank Horowitz replaced Michelle Gonzalez as the official court reporter at this time.) BY MR. MAHON (Cont'g): Q You said that the report dated June 16, 2002 without changes, that was done approximately on that date? A Yes. Q How did you do those? You dictate those in the machine and have your secretary transcribe it for you, or do you type it yourself or something else? A I think I dictated it into a machine and a dictation service takes care of it. Q And the report that has all the changes on it, was that also done on June 16, 2002?

MR. JORDAN: With the change? Objection, Your Honor. With the change or -- Q I'll repeat the question. Concerning -- drawing your reference to the report that has the handwritten changes on it. A Yes. Q On your comment area. A Yes. Q Was that also done on June 16, 2002? A Well, I had to wait for this original report to come back, and that probably took a couple of days. And that's why I mentioned earlier it was probably, I would think, towards the 20th of June, because it usually takes a few days for the typist to type the letter. Q Doctor, did you dictate this report also into a ma-chine? A What's that? Q The second report with the changes on it? A The handwritten changes, I didn't dictate them into a machine. Q If you could, Doctor, I'll try to be as simple as I can. With respect to the second report that has your changes on it, did you dictate that yourself? A I hand wrote them myself. I did not dictate them myself. Q I'm not talking about the changes. A Right. Q I'm talking about the typewritten on the page. A The typewritten on the page was dictated by myself. Q Thank you. That was my question.

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Did you dictate the following sentence? “Because of the nature of the surgery, one was not able to use a mechanical compression device over both calves to minimize the risk of developing deep venous throm-bosis.” Did you dictate that sentence, Doctor? A Yes. Q Would I be correct, then, in saying that at the time you dictated that statement, that that was your opinion, Doctor? A That was my opinion at that moment in time, yes. Q Now, there came a time when something happened and you decided to change your report; is that correct? A When I was proofreading it I decided to make some changes to it, yes. Q And you're not sure exactly when you proofread this? A Within a couple of days after getting the report back. Q You mentioned that you had spoken to a different doctor and then you changed your opinion; is that correct? A Yes. Q Did you indicate the name of the doctor who you spoke to in your report that swayed you into a different area or, in other words, to change your opinion from the opinion that you had on the date that you dictated this report? A No. Q Why is that, Doctor? A Well, I didn't think it was important. Q Why did you think it wasn't important that you change-- it was important enough that you change your opinion, was it not?

MR. JORDAN: That's not the question, Your Honor. Objection. MR. MAHON: I'd ask the witness be directed to an-swer, Your Honor. THE COURT: I'll allow that. THE WITNESS: Can you rephrase the question again? MR. MAHON: Can you read that back, please. (Record read) Q I'll rephrase the question, Doctor. You stated a minute ago that you didn't think it im-portant that you include the name of the doctor or the other person you spoke to that swayed you to change your opinion; is that correct? A That is correct. Yes. Q But you did think his opinion or this person's opi-nion was important enough that you would go back and change the written report that you had already written; is that correct, Doctor? A That is correct. Q Are you an orthopedist, Doctor? A No. Q I think you made mention earlier that the people or person you spoke to before you changed your opinion was an orthopedist; is t??at correct, Doctor? A Yes. Q You think it would be important for the jury in analyzing this case to have in front of them at least the explanation as to why you changed your report, Doctor? MR. JORDAN: Objection. He explained why he did.

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MR. MAHON: That's not true. THE COURT: Sustained. Sustained. He just said he spoke with an orthopedist and got more information. MR. MAHON: Was the objection sustained, Your Honor? THE COURT: Yes. Q Do you know what, roughly, what date you made these changes on this report? MR. JORDAN: Asked and answered, Your Honor. THE COURT: No, I'll allow that. A Within a few days after getting this report back from the typist. Q Why was -- withdraw that. Why was it that you had two reports as opposed to one, Doctor? A As I have explained earlier, my original report was a comprehensive report which included the patient's medical condition throughout the time that I was tak-ing care of him, as well as the malpractice part of the case and the comment about the malpractice part of the case. I was asked to separate the report and to only include the medical condition of the patient. Again, I'm not a lawyer. I'm not involved in the legal matters of the court system. But I was asked to sepa-rate the two, so I consolidated the original report to only reflect the medical condition of the patient. Be-cause I was told that the malpractice-- a report on the malpractice part of it would come at a later time. Q You said somebody asked you to separate the mal-practice out of the report, is that correct? A Yes. Q Who was that that asked you to do that? A Mr. Korek asked me to separate the two.

Q And then by definition would it not follow that Mr. Korek read the report that you made the changes on? A I would assume he did. Yes. Q Did you make the changes on the report, the handwritten changes, did you make them before or after you spoke to Mr. Korek? A Mr. Korek asked me to shorten the report probably a few months later. within two or three months after this report was written. Q Doctor, my question for you once again is did you make the handwritten changes on the report that has the handwritten changes before or after Mr. Korek reviewed it. A Oh, it would have been before. Before he reviewed it. Q You just said a second ago -- A No, no. What I said was he asked me to shorten the report a couple of months later. But I made the report on the original, complete report, which was before we shortened it. Q So it is your testimony that these handwritten changes were made beforehand?. A Yes. Q Before you sent them to Mr. Korek? A No. Before he asked me to shorten the report. Q Just for the jury to be clear, then, you sent the report to Mr. Korek? A Yes. Q He read it? A Yes. Q We assume he read it. At the time that he read it, the

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first time, were your handwritten changes on this document? A I would think they were, yes. Q I'm not asking you to think, sir. Are you sure or not sure? MR. JORDAN: Objection, Your Honor. THE COURT: Sustained. MR. MAHON: It's cross-examination, Your Honor. THE COURT: Do you know for a fact? THE WITNESS: It's about a year ago. Again, within a few days. I don't think I gave him the report before the handwritten changes were added to it. Q But you're not sure? A I am, again, there is a slight doubt that he might have seen the report before the handwritten changes. I would doubt it because I'm 99 percent sure I sent it to him with the handwritten changes. Q Did you advise Mr. Korek that you had spoken to an orthopedist and in fact changed your opinion during that period of time? A Yes. Q You did? A Yes. Q Okay. Did you advise Mr. Korek as to the name of the orthopedist you spoke to? A No. Q Why is that? A I didn't think it was important. Q Do you think it's important for the jury to know the opinion of the orthopedist that you spoke to when

making a verdict (sic) in this case, Doctor? MR. JORDAN: Objection, Your Honor. MR. MAHON: Cross-examination, Your Honor. THE COURT: What's the question? I'm sorry. Q Do you think it's important for the jury to know the name or the identity of the orthopedist you spoke to, the orthopedist that swayed you over to go back and change the written opinion that you dictated yourself in this report? A Well, I wasn't aware that the jury is familiar with all the orthopedists in New York. I mean I'd be happy to tell them, but, again, I didn't think it was an important piece of data. Q You testified approximately 25 times, Doctor? A Yes. MR. JORDAN: Asked and answered, Your Honor. Q Has it ever come up in one of your prior trials, Doctor? A No. Q Have you ever been on trial, in an examination seat before where you had a written report that you've actually changed based on the opinion of another doctor that's not indicated in the report, Doctor? A No, I don't believe so. Q Is this the first time? A I would think so, yes. Q Let's move with that point, Doctor. Do you think it's good practice when rendering a medical opinion to have the patient's complete medical history in front of you? A Yes.

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Q In this case when you authored this June 16 report, do you think you had the patient's complete medical history in front of you? A I believe I did. Yes. Q Well, the medical history that you had in front of you, was that not in fact the medical history provided by a document from plaintiff's counsel? A Yes, it was. Q And if I could draw your attention to your own report dated June 16, is there any indication at all in that document that you reviewed, Mr. Diarassouba's podiatric records and/or surgical records, concerning his foot before rendering this report? MR. JORDAN: Objection, Your Honor. Those reports are in the medical records of Downstate. A Again, I reviewed whatever records I allude to in my first paragraph. And whatever data they contained was what I reviewed. Q Do you have any recollection right now as to whether or not you reviewed Mr. Diarassouba's po-diatric surgical records prior to authoring this report? A Again, I would have to lock at the Downstate record and see what it contains. So I can't -- I don't want to answer that at this moment because I'm not -- it's been a few -- it's been awhile since I've looked at the Downstate records, and they were voluminous. So if it's there in evidence and if there is podiatric data about his surgical procedure performed by the po-diatrist, then if it's in there, I reviewed it. Q Doctor, when you did make the handwritten changes on your June 16, 2002 report, is there any reason why you did not date the changes? A Because it was part of the original report from June 16th 2002. I didn't think that dating it was necessary. Q Doctor, I'm going to direct your attention to your office record or report dated April 2nd, 2001. Please page to that, sir, if you have it in front of you.

A Yes, I do. Q That's a sheet for your examination done that date, sir. Is it also the history that you took that day? A Yes. Yes, I have it in front of me. Q Does it have a referral area? A Yes. Q Who does it say that referred this case to you, Doctor? A The patient was referred to me by Mr. Jeff Korek. Q That's the plaintiff's attorney; is that correct? A Yes. Q Is this the initial time that you saw this patient, Doctor? A That was his first visit with me, yes. Q Is this the first time that you prescribed a medication for this patient? A Yes. Q And what that? A It was a drug called Mexitil, otherwise known as Mexiletin. It's an oral form of Lidocaine, original use for the treatment of irregular heartbeats in patients that have cardiac conditions. We have found that this drug is useful for the treatment of neuropathic pain or reflex sympathetic dystrophy. Q Thank you Doctor. Do you know what you initially prescribed for the patient? Was it once a day, twice a day? Something else? A I prescribed him a 150 milligrams 3 times a day. Q Do you know whether or not prior to coming to see you that day, was the patient taking any type of pre-scribed medication at all?

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A He was on nothing at the time of the visit. Q Do you know whether or not the patient continued to take that medication three times a day as pre-scribed? A He uses it every day. Whether he takes it three times a day or not I don't want to say for sure. Q How do you know he uses it every day? A Because I am refilling the prescription every so often when he needs more medicine. Q Doctor, I'm going to refer you to your next office visit April 23rd, 2001. We can skip the referral part. But go down to the examination. A Yes. Q And there seems to be three lines written there. A Right. Q What does the first line say, Doctor? A Low back. Q What does it say next to that? A Non-tender. Q Next line says motor, five over five? A Yes. Q What does that mean, Doctor? A It means his motor function in his extremities are five over five. Q In layman's terms, what does that mean? Motor sensation in the extremities is five over five. What does that mean? A It means he has near normal motor function.

Q Does that mean near normal or does that mean normal? A Normal motor function. Q Is there a difference between near normal and normal? A Again, this is a gross way of looking at motor function. It's not an exact science. There are more sophisticated ways to look at motor function. So grossly he has normal motor function. Q The next line all it states, “sensory intact.” Is that correct? A Yes. Q What does that mean, Doctor? A It means grossly his sensation was intact. Q Would I be correct in saying that when you ex-amined this person on April 23rd, 2001, that there were no objective findings at all? A Correct. Q That is correct, right? A On that particular date. Q On that particular day? A Right. Q So would I be correct in saying that he was com-pletely normal on that day? A Well, you would be correct in saying. But it also shows that he was responding positively to the medi-cine that I put him on. Q Once again, there were no objective findings of anything wrong? A That day. Correct.

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Q Let's move on to your next exam, Doctor. I believe it's July 16, 2001. Okay? A Yes. Q Looks like you did a physical examination on that day too; is that correct? A Yes. Q Can you read to the jury the first line of your three lines of objective findings? A Low back non-tender. Motor five over five. Q Stop right there, Doc. Once again, motor five over five means the same thing as it did last time around? A Yes, it does. Q And then the last line? A Sensory decreased pinpricked, right calf and foot. Q Does that mean you took a pen or a pin and you touched the person's foot like this? A Yes. Q For the record, indicating going up and down? A Yes. Q Other than that, were there any objective findings, Doctor? A No. Q Indicated in your report? I'm sorry? A Those were the objective findings. Q If you go up above where it says chief complaint, which is where I assume you put the subjective com-plaints of the patient; is that correct? A Yes.

Q It states in there “rarely gets up at night.” Is that correct? A Right. Rarely gets up at night. MR. JORDAN: Objection, Your Honor. Unless he -- THE COURT: You have it in front of you. Is that what it says? MR. JORDAN: That's not all that it says. MR. MAHON: You can ask him whatever it is when I'm finished. THE COURT: Objection overruled. Q Does it also state in there “able to teach” on the last line, Doctor? A Yes. Able to teach. Q Does it also say intermittent ri??eat toe? What does that say, Doctor? A It says pain is burning and more intermittent in-volving right great toe medial aspect. Q Once again, you never saw -- you don't recall seeing this person's podiatric surgical records; is that correct, Doctor? A Again, I saw whatever is in the report, the volu-minous reports from Downstate. Q Those are the voluminous reports provided to you by plaintiff's counsel; is that correct? A They originated from Downstate and they were provided to me by plaintiff's counsel, correct. Q At the bottom of that page, Doctor, says, “next treatment date,” I think it says “see me in three months”? A Three months. Correct. Q Did this person come back in three months to see

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you? A His next date of service was -- let's see. He came back after three months. Q Well, look at your records and tell me when the person came back, Doctor. A He came back 5/28/02. Q That's approximately ten months later? A Correct. Q Would you say that this patient didn't follow your directions with respect to returning in three months? A Not at all. Q Do you know what that patient -- A I didn't mean that he didn't follow my directions. I actually have a reason why he did't come back for ten months. Q Doctor, do you know what this person was doing from July 16, 2001 to the next visit? Was he teaching? A Yes. I believe so. Q Was he taking the medication that you gave him as directed? A Well, I was giving him-- I did give him several refills which we did call in, and we may have sent him a prescription or two. Q Doctor, let's go to the next report, which is May 28, 2002, which is, I assume, in front of you there? A Yes. Q Looking at this report, May 28, 2002, and then we'll look at your narrative report which is dated June 16, 2002. That's about two weeks after -- withdraw that. Is the narrative report dated approximately two weeks after the office visit of May 28, 2002?

A About two weeks. Q Did you speak to plaintiff's counsel prior to the May 28, 2002 examination? A I certainly might have spoken to him, but, again, I don't want to say for sure. But I'm sure I did speak to him at some point. Q Did you speak to them in reference to the prepara-tion of your narrative report, Doctor? A I'm sure I did. Q Why is that, Doctor? A Because they asked me to prepare a report on him. Q After the person-- after Mr. Diarassouba left your office on May 28, 2002, it states at the bottom of that page, “Next treatment date.” Do you see that? What does it say next to that, Doctor? A I just wrote the record “will.” Q What does that mean to you? A Patient will call. Q Will call if they need you? Will call if they want to see how you're doing? A Will call when he needs more medications. Q When he left your office that day did he make another appointment that day? A That day, no. Q Did you direct him to come back at any particular time that day? A I did not direct him to come back. Q Doctor, I'm also asking you, as the last document to look at, direct your attention to the handwritten med-

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ical history. You have that in your file, Doc? Just tell me when you find it. A Medical history record, I have. Q Is that a form that you give your patients to fill out while they are waiting in the waiting room? A Yes. Q Before they come in and see you? That's a yes, Doctor? A Yes. Q On that history, I notice that there is an area which presumably is page two. Do you see page two there, Doctor? A Yes. Q And there's actually an area, it's like a check yes-or-no area? A Yes. Q And it says on the middle righthand side of that page, “Have you recently had” and you check yes or no? A “Have you recently.” You're talking about the page that's empty? Q Correct. A Yes. Q Don't the selections read as follows: “Number one, pains in calves of legs when walking.” Does it read that, Doctor? A Yes. Q And there's no check of yes or no? A There's no check on anything on the whole page.

Q Is the next question cramps in legs at night? A Yes. Q Is the next question pain in the big toe? A Yes. Q Isn't it true that this form is blank, Doctor? A Yes. Q Mr. Diarassouba didn't fill that in, Doctor? A That is correct. Q And lastly, let's look at the other handwritten form which I presume was also filled out that day. It's got Mr. Diarassouba's handwriting at the bottom of the page and it's got a lot of have you had or yes or knows. Talking about page one. MR. MAHON: If I may approach, Your Honor. Q This page. Do you have that? A No, I have to find that. Yes, I have it. Sorry. Q Is this another form that was filled out on Mr. Di-arassouba's first visit? A No, he filled this out, actually. Q The reason I asked-- A Actually no, no, no. He did fill it out on his original visit. You're correct. Q And, in essence, in the entire page there's no yes checked except for that he's had previous surgery; is that correct? A Yes. Q Isn't there also an area for paralysis or weakness halfway down there, Doctor?

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A Yes. Q And did he not check no for that section? A He did. Q Following a little bit further up on that document there's an area that says “do you have,” and there's various questions such as contact lenses and things? A Yes. Q And there's an area that states physical limitations? A Yes. Q And the only thing he wrote there is “had left leg, is that correct, Doctor? A I think it says “bad left leg.” Q Or “bad left leg”? A Yes. Q There's no indication of any problem with the right leg there? A Correct. MR. MAHON: Thank you, Doctor. THE COURT: Redirect. MR. JORDAN: Just a little, Your Honor. REDIRECT EXAMINATION BY MR. JORDAN: Q Doctor, you were asked some questions about the circumstances under which you left LIJ. You want to add anything to what you testified to earlier? A Yes. Q What would you say about that?

MR. TERZIAN: Objection. THE COURT: Overruled. You brought it up. A My anesthesia group started in LIJ in 1954, and for about 45 years we were a private practice, fee-for-service anesthesia group. Around 1984 the hospital started making overtures to make the de-partment a full-time department, a salaried department as opposed to a fee-for-service department. We call that economic recredentialing. In other words, they change your status in terms of your application to be a member of the hospital based on how you're going to get paid. We actually fought them legally for seven years, from 1984 to 1991. We fought them because we felt it was not right; that a hospital which we had no contract with the hospital that stated that we should be employed by the hospital. We had a contract that had no term to it. That we were to be -- we were to provide anesthesia services and we were going to be a fee-for-service group. And that's the way it existed for 45 years. So we had a legal battle with them. We decided that the legal battle was becoming a burden to all 18 of us. And we decided to terminate our relationship with LIJ in 1991. So there was no quality issues involved. It had to do with an economic situation and we just decided to leave. Some people went to St. Vincent's Hospital. I went to the Catholic Medical Center with about five or six other people. And we just changed the hospital that we provide anesthesia services at. And that's what happened. Q Are you familiar with the term “eschar”? A Yes. Q And what is eschar? A well, again, from a non-surgical-- from a non-surgeon's point of view, an eschar is a healing of tissue in a way where, which is not normal, where there's actually a thickness, almost like a scar forma-tion over the area. So it's a wound that heals with a thick scar. Q You were asked questions by Mr. Terzian about

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gangrene in connection with the podiatric procedures. I want you to assume that any gangrene or eschar was actually on the patient's fourth toe. And I want you to further assume that the onset of neurological symp-toms in this case were described by Dr. Urban as tibial nerve paresthesias, and that what was described were burning and electrical-type pain coming into the heel, toes, plantar and dorsal surface of the foot. I want you to further assume that Dr. Urban has stated that the podiatric surgery did not involve any proxim-ity to the tibial nerve. And I'm going to ask you in your opinion is there any way that this podiatric surgery resulting in this gangrene or eschar to the fourth toe was the cause of this patient's RSD? A Absolutely not. Again, for various reasons. The patient was examined by multiple physicians before his surgery. There's no hint of any involvement before the surgery. The heel and the bottom of the foot is actually innervated, the nerve, the nerve involvement of that area mainly comes from the tibial nerve which leads into the plantar nerves which supply the bottom of the foot. So that the area that you're talking about with the gangrene would not have been part of that. Q Now, you were asked, you could just turn to that, I think it's that third visit. Is that July 16 ‘01 of the patient? A Yes, I have it in front of me.- Q Just because we went through this, just read the entire chief complaint on that day. A Complaining of numbness, right calf and foot. Get-ting worse. Doing well on Mexitil. Rarely gets up at night. Still with pain, right calf and foot. Pain is burning and more intermittent involving right great toe medial aspect. Able to teach. Q You were asked some type of question about the patient, even though you recommended coming back in three months, at one point, the patient did not return for a much longer period of time. I guess about ten months. And you said you were aware of what the circumstances were before that. I'll just ask you what your knowledge is. A Well, Mr. Diarassouba, again, I don't know where

he lives. If I look at the patient's chart I will certainly see where he lives. But I assume he lives someplace in Manhattan. My office is in New Hyde Park, New York. He was coming to me for this Mexitil, which is a medication that we can easily renew on the phone. And without any major change in his symptomatolo-gy, I really didn't see the need to have to drag him out to New Hyde Park every time he needed a renewal of his medication, which is, again, it's a non-narcotic. It's a medicine used specifically for RSD. You don't need to necessarily see the patient as long as the patient's symptoms haven't changed all that much. So we wouldn't see him for months at a time, but I knew during that time that he was stable. Q You say that there was no great change in the symptomatology. With RSD, is the patient going to feel, in terms of where the numbness is and where the tingling is and where the burning is, and where any weaknesses, is the patient going to be feeling the same way every day with this? A No. He doesn't necessarily have to feel the same way. I mean generally over time, you know, his symptoms will be a variety of symptoms that you can categorize and he can tell you about. But, specifically, the weather can change his pain intensity, cold weather being worse than warm weather. Humidity can change it. There are a lot of factors environmen-tally that can change what he experiences every day. If there's air conditioning in the room he may feel dif-ferently than if there's, if he's in a steam room. MR. MAHON: I have no more questions. MR. TERZIAN: Just very few, Your Honor. THE COURT: Go ahead. RECROSS EXAMINATION BY MR. TERZIAN: Q If the SSEP, the somatic sensory test, if that was performed improperly, you wouldn't know it, would you? MR. JORDAN: Objection. I didn't ask about an SSEP. Q Didn't you rely on SSEPs when you testified in your

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direct examination last week as part of making your opinion? MR. JORDAN: That should have been cross. Objec-tion, Your Honor. THE COURT: I'll allow him a little latitude, but what's the question, Mr. Terzian? Q My question is you wouldn't know if the SSEP, you wouldn't know if it was an error. You couldn't rely on an erroneous report, couldn't you? MR. JORDAN: Objection, Your Honor. A I assume that the neurologist that Mr. Diarassouba saw was competent enough to perform an SSEP that had validity. Q So you have to take on faith that that report is ac-curate and reflective? A Yes. Q If Mr. Diarassouba -- let me ask you this, Doctor. Sensory and motor nerves in tibial branch, they run close together? A I'm not an anatomist, but I would assume there are motor and sensory branches that run, are enveloped in the same sheath of what we call the nerve. Q If there was an -- if there was injury to his sensory nerve, wouldn't you expect, then, if there was injury to his sensory nerve as running close together next to a motor nerve, then would you expect to see injuries to the motor nerve as well? They are in the same sheath, right? MR. JORDAN: Always, Your Honor? Objection to the form. THE COURT: I don't understand the question. Q If the sensory nerves and the motor nerves are in the same sheath, and the sheath is kind of like a cylinder almost, correct? A Yes.

Q And there's a bundle of nerves within there. It's all close together and tight, right? A Right. Q So if they're running close together next to each other, you would expect that if there was a compres-sion of the sensory nerve, that there should have been a compression of the motor nerve running right next to it, right? MR. JORDAN: Objection to the form, Your Honor. I don't know if he's means always or generally. Objec-tion. Q Always. You would expect that always? A You don't always see motor and sensory dysfunc-tion together. They can be separate. A person could be numb and not necessarily be weak, you know, from a nerve injury. Q If there was a nerve compression, and the two nerves, the sensory nerve and the motor nerve are in the same bundle in the same sheath next to each other, and there's a compression of the entire bundle, wouldn't you expect to see a motor nerve injury also? A Again, some people may have it and some people may not have it. Q I'm asking about compression, nothing about RSD or something else or DVT. I'm talking about nerve compression. MR. JORDAN: Objection. THE COURT: Sustained. MR. TERZIAN: Your Honor, I'm not asking about DVT or RSD. He's answering to a different thing. MR. JORDAN: He's not. He's answering the question. THE COURT: That's sustained. Q In your opinion, if there was a nerve compression, you would not necessarily see a motor nerve injury but

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you could see a sensory nerve injury? A It depends on how severe the compression is. It depends, obviously, what fibers are being compressed. But many times you get a split sensory deficit and you can still have descent motor deficit. It all depends on how badly the nerve is injured. Q I guess it works vice versa also, right? You could have a perfectly fine sensory nerve then and you could have some motor damage from a nerve compression. Is that true? A Sure. Yeah. Q The “five out of five motor” means normal motor function, right? A Yes. Q If you had sensory nerve injury wouldn't you expect to see some type of deficit in the person who has the injury in a lower extremity? A deficit in the manner in which they walk? MR. JORDAN: Objection, Your Honor. I think this is outside the scope. Q Let me rephrase it. Didn't you testify last week that through the lack of use -- paraphrasing -- through a lack of use of the muscles in the right leg it sort of led to an RSD as well? MR. JORDAN: Objection. Q Did you say that? A I didn't say that at all. I said through lack of use, an RSD can progress to involve motor weakness simply because he's favoring the non-painful leg, which is his left leg. He's not using his right leg to its full extent, and therefore he can get just motor weakness just over the fact that he's not using it, his leg, and he's not exerting all his weight on that leg to its fullest extent. Q So if you don't have any motor weakness, then are you saying that you wouldn't expect to see any prob-lems moving that leg when you walk?

MR. JORDAN: Objection, Your Honor. THE COURT: I'll allow that. His gait being normal. A If you don't any have motor weakness, then I as-sume his gait should be normal. But, again, if he has sensory deficits, let's say, on the bottom of his foot, he may walk with a hesitancy only because he can't feel the bottom of his foot while he's walking. So you can have abnormal gait simply because a person who is numb on the bottom of his foot, when he is stepping down steps especially, he's worried that he's going to fall and hurt himself because he can't judge where his foot is going. Q So what would you expect to see in terms of an abnormal gait? A Again, again, if he has good motor function, I would expect his gait to have a hesitancy to it. He's not going to do any race walking. Okay. He's going to walk thinking about where his foot is going. Q What do you mean by that, walk thinking about where his foot is going? MR. JORDAN: Objection, Your Honor. A In other words, he's going to walk with hesitancy. When we walk, we don't think about walking. He's going to think about where his foot is going. And, as a result, he will walk with a hesitancy. Q Would you see some type of hesitancy in his gait? Is that what you're saying? A Yes. Q And can you be a little bit more specific there? What you mean by hesitancy? A Again, he's not going to be a race walker. He's not going to walk in ways where he runs the risk of injury. He's not going to walk on, when he walks, let's say, on a slippery surface, he'll be a lot more careful than you and I who can feel the bottom of that surface more simply and easily than he can who has a numb foot. Q Would he have any problems stepping up into a

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vehicle like a Chevy Tahoe? A I don't think so. Because, again, stepping up to a Chevy Tahoe, he's going into a confined area where he can't fall and hurt himself. Whereas when he's going down steps, if he misses a step he's going to fall. Q Is it possible that he could hit his right foot on the side of the vehicle as he's getting into -- MR. JORDAN: Objection. Q Could that happen? THE COURT: Sustained. Ask a different question. The objection is sustained. Q Would you expect him to have problems stepping onto a sidewalk? Would you expect that? A Stepping up to a sidewalk, I would think would be a lot easier than stepping down into the street. Q So you think you would see some problems if he stepped down into the street? MR. JORDAN: Objection as to this conjecture, Your Honor. A Yes. THE COURT: Sustained. A Again, I'm not a phys -- THE COURT: Don't answer. MR. TERZIAN: Subject to connection, Your Honor? THE COURT: Ask another question. MR. TERZIAN: Subject to connection on my direct? THE COURT: Ask another question. Q So hesitancy is the best way you can describe it. I just want to move and we'll move on.

A Yes. MR. TERZIAN: No other questions. Thank you. THE COURT: Mr. Mahon, anything else? MR. MAHON: Nothing further. THE COURT: Mr. Jordan, anything else? MR. JORDAN: No. THE COURT: You may step down, Doctor. (Witness excused)

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