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POHLMANUSA COURT REPORTING (877) 421-0099

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOISMYREL J. HEATHERLY, JR. Plaintiff, Case No. 12-L-330

v. HANS H. MOOSA, M.D. and M.S.AALLIANCE, LLC d/b/a SOUTHERNILLINOIS VASCULAR SURGERY, Defendants.

DEPOSITION OF RALPH W. DENATALE, M.D. NORTH HAVEN, CONNECTICUT MAY 5, 2015

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1 I N D E X23

EXAMINATIONS: PAGE4

DIRECT - BY MR. WINSLOW 4 5

CROSS - BY MS. BRAUER 816

REDIRECT - BY MR. WINSLOW 867

RECROSS- BY MS. BRAUER 89 8 9

10 DEFENDANTS'11 EXHIBITS12 NUMBER DESCRIPTION PAGE 13 1 Notice of Deposition 414 2 Plaintiff's Designation15 of Expert Witnesses 416 3 List of cases 251718192021222324

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1 APPEARANCES:23 Appearing telephonically: Stephanie Brauer, 4 Esq., of Cook, Ysursa, Bartholomew, Brauer & Shevlin, 5 LTD., 12 West Lincoln Street, Belleville, IL 62220 6 represented the Plaintiff Myrel J. Heatherly, Jr. 78

Jason K. Winslow, Esq., of Hinshaw & 9

Culbertson, LLP, 521 West Main Street, Suite 300, P.O. 10

Box 509, Belleville, Illinois 62222 represented the 11

Defendants Hans H. Moosa, M.D. and M.S.A Alliance, 12

LLC, D/B/A Southern Illinois Vascular Surgery1314 15 16 17 18 19 20 21 22 23 24

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1 RALPH W. DENATALE, stating his business address as 2 280 State Street, North Haven, Connecticut 06473, 3 having first been duly sworn, as hereinafter certified, 4 was examined and testified as follows: 5 (Defendants' Exhibits 1 and 2 were pre-marked 6 into the record for identification.)7 DIRECT EXAMINATION BY MR. WINSLOW: 8 Q. Okay. Dr. Denatale, my name is Jason Winslow. 9 We met shortly before the deposition. I represent

10 Mr. Moosa. I'm here today to take your deposition. I 11 want to thank you on the record for your cooperation 12 and patience in starting the deposition today. I've 13 previously marked the notice to take your deposition as 14 Defendants' Exhibit 1, and the Plaintiff's Designation 15 of Expert Witnesses as Defendants' Exhibit 2. Have you 16 seen the Notice of Deposition? 17 A. Yes. 18 Q. Okay. And that paragraph there that asks you 19 to bring materials, I think you furnished materials 20 that you have with relation to this file; is that 21 correct? 22 A. Correct. 23 Q. Is that the entirety of the information you've 24 reviewed in this case?


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1 A. Yeah. 2 Q. Okay. The second thing is Plaintiff's 3 Designation of Expert Witnesses. I've marked that as 4 Exhibit 2. Could you take a look at that document? 5 A. Yes. 6 Q. Okay. And is attached to that your CV? 7 A. Correct. 8 Q. Is that the most up-to-date CV? 9 A. Yes.

10 Q. Okay. The -- and then you've got a third 11 document in front of you. Can I just take a quick look 12 at that? 13 A. Sure. 14 Q. Is this the -- okay. So Doctor, what you've 15 furnished here is a copy of your opinions in this case; 16 is that correct? 17 A. Correct. 18 Q. Now, what I interpret this to be -- and you 19 may not understand this fully, because it's kind of a 20 legal thing -- but that appears to be the 2-622 21 Certificate of Merit. You know what I'm talking about 22 when I say that? 23 A. I thought I would -- yes. 24 Q. All right. So this is the document you

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1 actually executed for Mr. Bartholomew's? 2 COURT REPORTER: I'm sorry, Counsel. 3 I'm having a hard time hearing you. 4 MR. WINSLOW: If I take this off, I 5 wonder -- can you hear? Can you hear me?6 COURT REPORTER: I can hear you a 7 little better. 8 MR. WINSLOW: How about now?9 COURT REPORTER: That's much better.

10 Q. Okay. So this document that we're looking at, 11 did you execute that for Mr. Bartholomew's office 12 before the suit was filed? 13 A. Yes. 14 Q. Okay. Now, the contents of that document and 15 the contents of Defendants' Exhibit 2 are fairly 16 similar in nature, are they not? 17 A. That's correct. 18 Q. Okay. And is there any difference between the 19 opinions you expressed in Defendants' Exhibit 2 and the 20 the document you furnished today that you notice? 21 A. No. 22 Q. Okay. And the statement made in Defendants' 23 Exhibit 2, is that the entirety of the opinions you 24 intend to express at trial in this matter?

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1 A. Yes. 2 Q. Okay. I'd like to just kind of try to 3 understand this document as best I can. My 4 understanding of your opinion is that you criticize 5 Dr. Moosa for failing to perform a remote bypass 6 procedure to avoid the infected field? 7 A. Yes. 8 Q. Do you also maintain opinions in this case 9 relative to the indication for the use of a

10 cryopreserved vein as bypass in an area of known 11 infection? 12 A. Specifically in this case, yes. 13 Q. Okay. So I just want to understand. You have 14 two separate opinions, then? 15 A. No, only for this case. That's my only 16 opinion. 17 Q. Okay. But in this case, you've got the 18 opinion that he should have done a remote bypass 19 procedure; correct? 20 A. Correct. 21 Q. And you're also critical of him for using the 22 cryopreserved vein in the infected field in this 23 case? 24 A. Yes.

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1 Q. Now, I assumed from your response that you 2 accept as a general proposition that cryopreserved vein 3 can be used in an infected field? 4 A. I will answer this yes or no. But may I add 5 to it? 6 Q. Absolutely. 7 A. Okay. There are occasions, very few, where 8 cryopreserved veins can be used. 9 Q. Okay.

10 A. They're very far and few between. But, yes, 11 they can. 12 Q. Okay. Can you identify the occasions on which 13 cryopreserved vein --14 A. Sure. 15 Q. -- can be used in infected fields? 16 A. If you take a situation where there's been a 17 previous infection that has been treated properly and 18 eradicated, then, and only then, can you place a 19 cryopreserved vein in that field. That would be 20 predominantly the main reason to use cryopreserved 21 vein. One other indication would be when you have 22 exhausted all other standard therapies, and you have 23 nothing else to offer the patient other than the use of 24 cryopreserved vein.


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1 Q. Okay. Can you identify the other standard 2 therapies that were indicated in this case that should 3 have been performed before offering the cryopreserved 4 therapy? 5 A. Yes. When you have exhausted the use of all 6 autologous grafts, when you have exhausted the use of 7 all remote bypasses, r-e-m-o-t-e -- and again, just to 8 repeat what I said, when you eradicated the infection, 9 you can place cryopreserved vein back into that

10 field. 11 Q. So would it be your testimony, Doctor, that 12 there is never an occasion to use cryopreserved vein in 13 the presence of a known and active infection? 14 A. Not when you have other accepted options. 15 Q. Okay. I want you to assume hypothetically 16 that this patient's other available options had been 17 exhausted, and the only option left was to use 18 cryopreserved vein. Is it your opinion that 19 cryopreserved vein cannot be used in a known infected 20 field? 21 A. No, there are occasions where you can. 22 Q. Okay. So after the other options have been 23 exhausted, you would accept that use of cryopreserved 24 vein in an infected -- active infected field is

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1 acceptable within your medical community? 2 A. Yes. 3 Q. Is that your opinion to a reasonable degree of 4 medical certainty? 5 A. Yes. 6 Q. Okay. So you would not disagree, then, with 7 the literature that supports the use of cryopreserved 8 vein in a known and active infected field? 9 A. No.

10 Q. Okay. And that's your opinion to a reasonable 11 degree of medical certainty? 12 A. Yes. 13 Q. All right. Do you have any medical literature 14 or medical studies or medical textbooks to support your 15 opinion that a vascular surgeon must exhaust all other 16 standard therapies before attempting to use 17 cryopreserved vein in an infected field? 18 A. Other than -- I can't quote you a specific 19 article. 20 Q. I understand that. And let me ask you this. 21 In the stack of materials that you produced here today, 22 I didn't see any medical literature when I leafed 23 through it quickly. 24 A. Correct.

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1 Q. All right. And so it's fair to say, then, 2 that you haven't looked at a specific study or a 3 specific chapter of a textbook or a specific report 4 that would say with authority in the field of vascular 5 surgery that that opinion is true? 6 A. I could specify and say that in standard 7 vascular surgical textbooks, they will mention the use 8 of cryopreserved vein and other types of grafts. And 9 it's usually at the end of the chapter where they will

10 go out of their way to specify that it should be used 11 in very rare situations, depending on whether you've 12 exhausted the standard treatments. And also depending 13 on the bacteria that has been grown out of the wound. 14 In other words, the virulence of the bacteria. 15 So that you will find information in textbooks about 16 cryopreserving. But certainly not mentioned as the 17 standard of care, and certainly not mentioned as the 18 primary treatment. 19 Q. Okay. I guess with respect to the textbooks 20 that you're making reference to, I don't see any of 21 those textbooks in your stack of materials. 22 A. Correct. 23 Q. And I don't see any of those textbooks 24 referenced in your -- the Plaintiff's Designation of

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1 Expert Witnesses. 2 A. Correct. 3 Q. You haven't brought any of that stuff with you 4 here today? 5 A. I have not. 6 Q. And so in rendering your opinions in this 7 case, you haven't identified anything specifically that 8 you're relying upon to support your opinion; is that 9 correct?

10 A. I can give you --11 Q. Well, can you answer the question first? 12 A. No. 13 Q. Okay. And then can you, as you sit here 14 today, identify a text that supports the opinion you've 15 just given? 16 A. Yes. 17 Q. Okay. 18 A. I could mention -- I will mention Rutherford's 19 Textbook of Vascular Surgery; Wesley Moore's Textbook 20 of Vascular Surgery; and I will also mention the 21 Journal of Vascular Surgery, where many of those 22 chapters are -- originate from. 23 Q. Okay. So I assume since you're quoting or 24 citing to those resources that you would find them


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1 authoritative in the field of vascular surgery? 2 A. Certainly something I rely on. I rely on many 3 things. Those would be a few of the -- a few of the 4 textbooks and journals that are important to me, yes. 5 Q. Okay. But in terms of -- I mean, you're 6 referencing them as supporting your opinion in this 7 case, are you not? 8 A. Yes. 9 Q. Okay. And so in order to do that, don't you

10 have to accept that they're authoritative in the field 11 of vascular surgery? 12 A. I am always careful about using that word 13 "authoritative," because I use so many. I use so many 14 textbooks and so many journals. They are very 15 important to me. I may choose to go to them before I 16 go to others, yes. 17 Q. Okay. Have you ever stated that the Journal 18 of -- what did you say it was? 19 A. The Journal of Vascular Surgery. 20 Q. Have you ever indicated that that was the most 21 important journal that you rely upon? 22 A. It is the main journal that we rely upon for 23 vascular surgeons. There are certainly other journals 24 that we can talk about. But generally the one that

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1 most vascular surgeons subscribe to would be the 2 Journal of Vascular Surgery. 3 Q. Okay. And do you subscribe to that journal? 4 A. Yes. 5 Q. And you rely upon that regularly in your 6 practice? 7 A. Yes. 8 Q. Is the same true for the Rutherford's Textbook 9 of Vascular Surgery?

10 A. Yes. 11 Q. And is the same true for Wesley's textbook? 12 A. Yes. 13 Q. Now, can you identify a chapter or a version 14 or a volume of Rutherford's textbook that supports your 15 opinion that other therapies have to be exhausted 16 before cryopreserved vein can be used in an infected 17 field? 18 A. I suppose if I had the textbook in front of 19 me, I could point to a chapter and answer that 20 question. But I don't have it with me. 21 Q. Okay. So you don't have a copy of 22 Rutherford's here at the office? 23 A. Not here in the office, no. 24 Q. I assume you have it at home --

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1 A. I do at home, yes. 2 Q. Wesley's textbook? 3 A. Yes, at home. 4 Q. And do you have any versions of the Journal of 5 Vascular Surgery? 6 A. We do keep the Journal of Vascular Surgery 7 here, yes. 8 Q. All right. I'm going to ask you the same 9 question. Can you identify a specific volume or

10 version of that publication that has an article 11 supporting your opinion that all other standard 12 therapies must be exhausted before use of cryopreserved 13 vein in an infected field? 14 A. At this time, I could not give you one. 15 Q. Okay. All right. Can you identify, just kind 16 of give us a thumbnail sketch, of the materials that 17 are contained in the documents that you reviewed before 18 giving your deposition? 19 A. Sure. There were two depositions. One for 20 Dr. Moosa, which I reviewed. One for the patient 21 Heatherly, which I did not review. I briefly went 22 through it. Did not read it word for word. And then 23 there were parts of the medical records from Memorial 24 Hospital and also copies of the office chart of

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1 Dr. Moosa. 2 Q. Okay. Did you have access to any of the 3 Barnes records? 4 A. Is Barnes the rehab facility? 5 Q. It's the referring institution. 6 A. Oh, Barnes Hospital, sorry. Yes, I did have 7 some information from Barnes Hospital. I believe the 8 op note, and there was a particular -- there was a 9 doctor, I don't recall his name. There were a few

10 pages from Barnes Hospital, not very much. 11 Q. Can you and I agree that Mr. Heatherly was 12 transferred to Barnes for the purposes of an 13 above-the-knee amputation? 14 A. Yes. 15 Q. And you would agree that Barnes did not make 16 any attempts to salvage Mr. Heatherly's leg; is that 17 correct? 18 A. That's correct. 19 Q. And it was the following day or the second day 20 after admission the above-the-knee amputation 21 occurred? 22 A. Yes. 23 Q. Okay. Did you review any billing records of 24 Dr. Moosa?


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1 A. I did see billing records. But truth be told, 2 I did not really look at them closely. 3 Q. Okay. And so you haven't formulated any 4 opinions about the reasonableness or the necessity of 5 the charges that he made? 6 A. No. 7 Q. And you don't intend to offer any of those 8 opinions at trial; correct? 9 A. Correct.

10 Q. Have you ever practiced in Southern 11 Illinois? 12 A. No. 13 Q. Have you ever practiced in St. Louis, 14 Missouri? 15 A. No. 16 Q. Are you familiar with the billing practices in 17 that area? 18 A. No. 19 Q. All right. Would you agree that the practice 20 of vascular surgery differs from area to area, region 21 to region? 22 A. Well, in reality, it does. 23 Q. Okay. I'll accept that. The -- I wanted to 24 ask a question about this company that sent you the

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1 records. Can you just explain what that is. 2 A. Quest is a company out of New York that will 3 have me on occasion review records of cases. 4 Oftentimes, I will receive something by e-mail asking 5 me if there's merit to a case based on a brief 6 synopsis. And then based on that will dictate whether 7 they send me additional information. 8 I do not get paid for the original review of 9 the synopsis. I only get paid for medical records that

10 I think have merit and then that they send to me. 11 Q. Okay. So the -- your payment for reviewing a 12 case is as a medical-legal expert are made by Quest? 13 A. I initially get paid by Med Quest at the 14 beginning. If it takes me two hours, which it did here 15 to review this case, based on the materials they sent 16 me, I would charge for that. 17 Q. Okay. And what is your charge to Med Quest? 18 A. $375 an hour. 19 Q. Okay. So Med Quest was charged $750 in this 20 case? 21 A. Correct. And I believe there was another 22 payment of about $187 for some additional work, 23 possibly putting together -- possibly chatting with the 24 attorneys and putting together this form here.

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1 Q. Okay. That's the 2-622 form that we talked 2 about earlier? 3 A. Correct. 4 Q. Do you have a copy of your billing records on 5 this case? 6 A. I can give them to you, yes. 7 Q. Do you know what your total charges in this 8 case are? 9 A. 750 plus 187.

10 Q. Okay. I won't make you do the math on that 11 one.12 A. Okay, good. 13 Q. I won't do it either. And then what is the, I 14 guess, the charge -- are you charging Med Quest for 15 your time here at deposition or --16 A. No. At this point now I'll be charge -- I 17 will not be charging Med Quest. But my fee is going to 18 be $2,000 for the afternoon, plus 375 per hour in 19 preparation. 20 Q. Okay. And how many hours did it take to 21 prepare --22 A. Approximately four hours. 23 Q. Okay. And if you testify at trial, do you 24 have a separate charge for that?

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1 A. It will be $5,000 for the day, not including 2 traveling expenses. Those will have to be included 3 onto it. 4 Q. Okay. So if I understand how Med Quest is 5 involved here, would the Plaintiff's attorney's office 6 ask Med Quest to find them someone to review the case 7 for them? 8 A. Correct. 9 Q. And then Med Quest contacts you and possibly

10 others? 11 A. Correct. 12 Q. And then if you're able to review the case and 13 find a violation of the standard of care, then the 14 attorney can retain you? 15 A. Correct. 16 Q. Okay. How many cases do you look at for Med 17 Quest -- well, let me back up. How long have you been 18 reviewing cases for Med Quest? 19 A. I've probably been reviewing cases for Med 20 Quest, I'm going to say, maybe three to four years.21 Q. Okay. And in that three to four years, can 22 you give me an average per year how many cases you 23 review for Med Quest? 24 A. I could -- I may not be able to give you per


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1 year. But I'll -- I can generally get approximately 2 five cases a month that they might e-mail to me. And 3 of the five cases a month, occasionally there's 4 possibly one per month that I may get additional 5 records on. 6 Q. Okay. So in the last four years, would it be 7 fair to say that you've been retained as an expert 48 8 times? 9 A. Approximately, yes. Yes.

10 Q. Okay. So you're retained as an expert in 12 11 cases per year? 12 A. Approximately, yes. 13 Q. Okay. Is there --14 A. And that varies. 15 Q. Okay. And has there been any other service 16 that you respond to other than Med Quest? 17 A. National Medical Consultants. 18 Q. Okay. And how long have you been reviewing 19 cases for that service? 20 A. Probably five years for them. 21 Q. Okay. And how many cases per year do you look 22 at for them? 23 A. I get fewer cases from them. They do things a 24 little bit differently. They don't ask me to review

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1 things by e-mail. I'll usually get a phone call, we'll 2 discuss it by phone. And then if there's merit to the 3 case, they will send me the medical records. And I 4 would say -- I'm going to say anywhere from two to four 5 cases a month I may discuss with them. And of that, 6 maybe they send me two cases a month where I'll review 7 medical records. That's probably a fair estimate. 8 Q. Okay. Any others besides Med Quest and 9 National Medical Consultants?

10 A. No. 11 Q. Do you have direct contact with attorneys who 12 contact you, not through a service necessarily, but 13 just directly call you to ask --14 A. Very infrequently. 15 Q. Okay. What would be an average number of 16 those cases that you review per year? 17 A. Two to four cases a year. 18 Q. What percentage of your income -- I don't want 19 to know what you make -- but what percentage of your 20 income would you identify as being attributable to 21 medical-legal review? 22 A. About two to three percent. 23 Q. How many depositions have you given this 24 year?

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1 A. I haven't given -- I don't -- one this year. 2 One. 3 Q. One? 4 A. One, yes. 5 Q. How many depositions would you say you've 6 given over the course of your career as a medical-legal 7 expert? 8 A. I'm going to say approximately in the range of 9 about 20.

10 Q. Twenty? 11 A. And that started back in -- I realize I've 12 been saying the last five years. And there was one or 13 two before that. So mainly the five years. But I 14 remember giving one back in the '90s so -- the majority 15 has been over the last five years. 16 Q. Okay. Can you identify the percentage of 17 cases that you review in terms of whether it's for the 18 doctor or the patient? 19 A. Most of the depositions I've given have been 20 for the plaintiff. 21 Q. Okay. 22 A. There's been a small percentage of cases for 23 the defendant. I would say probably ten percent, the 24 defendant.

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1 Q. Okay. Now, the deposition. And then you said 2 cases. I just want to make sure the record is clear -- 3 A. Depositions. 4 Q. Okay. So it's -- you want to clarify the 5 answer? 6 A. I understand, yes. Cases, I would say, the 7 vast majority of cases I review, I choose to look upon 8 this as in defense of the physician. Because I find 9 most of the cases I review have no merit. But beyond

10 that, the depositions I have given, probably 80 to 90 11 percent have been to the plaintiff. 12 Q. Okay. So of the cases you review from the 13 services, you do this initial threshold review, can you 14 say a percentage of cases on average that you turn 15 down? 16 A. I would say at minimum 80 percent. 17 Q. Okay. All right. Have you ever testified on 18 behalf of a defendant doctor as an expert, a medical 19 malpractice case involving an above-the-knee 20 amputation? 21 A. Yes. 22 Q. Can you identify the name of the case as you 23 sit here today? 24 A. No, but I can give it to you before you


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1 leave. 2 Q. Okay. Do you know the attorney's name? 3 A. I don't, but that I can give you as well. 4 Q. Okay. Do you have a list of cases that you 5 maintain? 6 A. I do have a list of -- I do have a list of the 7 expert witness cases that I've been in court, yes. I 8 can give you those today. 9 Q. Okay.

10 A. I can give it to you now if you want. 11 Q. Yeah, that would be great. 12 MR. WINSLOW: Can we take a break. 13 MS. BRAUER: Sure. 14 (Whereupon, there was a brief recess taken.) 15 MR. WINSLOW: Madam Court Reporter, I'd 16 like to mark as Defendants' Exhibit 3 a copy of this 17 list. I can send it to you by e-mail. 18 (Whereupon, Defendants' Exhibit 3 was marked 19 into the record for identification)20 Q. And Doctor, you've identified a case from 21 November the 22nd, 2005, Charles Guilbert, 22 G-u-i-l-b-e-r-t. That's a case in which you testified 23 on behalf of the defendant in court. And that was 24 Attorney Bernard Gaffney is the attorney who retained

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1 you in this case? 2 A. Correct. 3 Q. That looks like it was pending in Waterbury, 4 Connecticut? 5 A. Correct. 6 Q. Tell me about that case, would you? 7 A. That was a patient who was a paraplegic and 8 had a large ulcer on his foot. Attempts were made to 9 salvage the foot and were unsuccessful. And he went on

10 to an amputation of his leg. 11 Q. Okay. 12 A. And I had agreed with the treatment given by 13 the head doctor. 14 Q. Okay. What attempts were made to salvage the 15 foot? 16 A. Basically, local wound care. That was it. 17 There was no attempt in terms of bypass operation or 18 anything of that nature since the patient was a 19 paraplegic and had no use of the leg. 20 Q. Okay. I note that the other cases on this 21 list, there are one, two, three, four, five of them 22 where you testified on behalf of the plaintiffs; 23 correct? 24 A. Correct.

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1 Q. Did any of those cases involve an 2 above-the-knee amputation? 3 A. Yes. One of these did here. This last one 4 was a patient that I believe went on to develop 5 compartment syndrome and went on to lose his leg. 6 Q. Okay. And that's the Bonnie Selvon case, 7 S-e-l-v-o-n with Attorney Allan Fuchsberg, 8 F-u-c-h-s-b-e-r-g pending in New York, New York; is 9 that correct?

10 A. Correct. 11 Q. Okay. That's Exhibit 3. Going back to your 12 CV, did you have publications or presentations listed 13 there that would be relevant to this case? 14 A. No. 15 Q. I noted on your CV that you're a fellow in the 16 American College of Surgeons; correct? 17 A. Yes. 18 Q. Do they author publications from time to time 19 that are disseminated to surgeons in your field? 20 A. They'll send around a general bulletin once a 21 month. 22 Q. When's the last time you went for 23 recertification of your board certification? 24 A. Most recently -- I'll give you the date in a

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1 second. I took it in 2009, but it's actually -- it had 2 to be taken before 2010. So I am recertified until 3 2020. 4 Q. Okay. Do you maintain any other board 5 certifications? 6 A. Just vascular surgery. 7 Q. Okay. Did you use a study guide or study 8 preparation materials to prepare for your board 9 recertification?

10 Q. Yes. As a matter of fact, there was one in 11 particular called VSAP. VSAP is just -- it's a list of 12 questions that we use to train the vascular fellows at 13 the local hospitals. Those doing training in vascular 14 surgery. So I did use that. It goes over questions. 15 Q. Did you use any materials published by the 16 American College of Surgeons? 17 A. Nothing specific, I believe -- no. 18 Q. Okay. But if the college does publish 19 materials that are used and intended to be used for 20 test preparation, would you find that to be a reliable 21 source of information for test preparation? 22 A. Sure. Sure. 23 Q. You're a fellow in the college; correct? 24 A. Sure.


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1 Q. Okay. And fair to say that that information 2 is authoritative in your field? 3 A. Sure. 4 Q. Doctor, the initial presentation of 5 Mr. Heatherly, you had medical records available to you 6 to review Dr. Moosa's notes regarding the initial visit 7 with the patient; correct? 8 A. Yes. 9 Q. All right. I'm wondering if we can agree that

10 Mr. Heatherly, as of that date, had lifestyle limiting 11 claudication? 12 A. Yes. 13 Q. And can we agree that he had superficial 14 femoral artery stenosis greater than or equal to 6 15 centimeters? 16 A. If I could specify. I'll just make it easier. 17 He actually had limb-threatening ischemia. 18 Q. Mm-hmm. 19 A. And he had an occlusion of his right common 20 femoral artery and a superficial femoral artery. 21 Q. And deep femoral artery? 22 A. And profunda femoris artery, correct. 23 Q. And you used the term, is it synonymous with 24 critical limb ischemia?

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1 A. Yes. 2 Q. Can you define that for us laypersons, 3 please? 4 A. Critical limb ischemia means that if the blood 5 supply is not improved upon, there's a good likelihood 6 the patient will go on to have tissue loss, possibly 7 leading to amputation. 8 Q. Okay. And can you identify the mortality rate 9 for below-the-knee amputation or above-the-knee

10 amputation in patients presenting with CLI? 11 A. It depends on what you have read. Years ago, 12 it was quite high. Currently, it's less than five 13 percent. 14 Q. Okay. Is that for above-the-knee and 15 below-the-knee, or is there a distinction? 16 A. There can be a distinction. It can be a 17 little bit higher for above the knee but under ten 18 percent. 19 Q. If nothing was done to intervene on 20 Mr. Heatherly's behalf, would you say that it's more 21 likely than not that he was going to lose his right 22 leg? 23 A. Yes. Mr. Heatherly needed surgery. 24 Q. Okay. And would you agree that Dr. Moosa was

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1 performing procedures, plural, in an attempt to salvage 2 his right leg? 3 A. Yes. 4 Q. Would you agree that part of what Dr. Moosa 5 was doing was providing short-term conduit to maintain 6 distal limb perfusion until the infection could be 7 controlled? 8 A. I didn't come across it anywhere. But if 9 that's what he was planning, then I would agree.

10 That's fine. 11 Q. Okay. Did the medical records to you give you 12 an indication of where -- as to what he was thinking? 13 A. No. 14 Q. But what you're saying is that you would defer 15 to him, that if that was his plan of action -- or his 16 thinking, that that met the standard of care? 17 A. Yes. 18 Q. All right. Would you agree that Dr. Moosa's 19 treatment of Mr. Heatherly was medically necessary, 20 setting aside the criticisms of it? 21 A. Yes. 22 Q. And so if I can understand in basic terms, 23 your opinion, you don't hold the opinion that Dr. Moosa 24 performed an unnecessary surgery. You just disagree

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1 with the procedure that he performed? 2 A. Correct. 3 Q. All right. Now, maybe to short circuit this a 4 little bit. The procedure that is the subject of your 5 disclosure document occurred on February 14, 2011; is 6 that correct? 7 A. Correct. 8 Q. You and I can agree that Mr. Heatherly 9 underwent a number of surgeries before that day;

10 correct? 11 A. Correct. 12 Q. Do you have any opinion as to a reasonable 13 degree of medical certainty that are critical of 14 Dr. Moosa's performance of the procedures prior to 15 February 14, 2011? 16 A. I do. 17 Q. Okay. Can you show me in the disclosure 18 document where that opinion or those opinions, plural, 19 are expressed? 20 A. I did not mention those. 21 Q. Okay. So these are new opinions that you're 22 disclosing for the first time? 23 A. Well, I actually only -- the operations that 24 were done before did not deviate from the standard of


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1 care. 2 Q. Okay. 3 A. I would have chosen a different approach to 4 the treatment. I would have picked a different 5 operation. 6 Q. Okay. So your personal preference would have 7 been to perform different surgical procedures on 8 Mr. Heatherly prior to February 14, 2011? 9 A. Correct.

10 Q. But you're not here to testify today or at 11 trial that what Dr. Moosa did prior to February 2011 12 violated the standard of care? 13 A. I'm not prepared to, unless I'm specifically 14 asked the question. 15 Q. Okay. Well --16 A. I don't know how to answer it other than 17 that. 18 Q. Well, there's a difference between what you as 19 a physician would prefer to do with a patient and what 20 you think is required by the general community of 21 vascular surgeons, practitioners in the same or similar 22 situation. Are you here today to express an opinion 23 practitioners in the field of vascular surgery must 24 perform procedures other than the ones Dr. Moosa

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1 performed prior to February 14, 2011?2 A. No. All I'm saying is that there are 3 consequences to the operation you choose to use in a 4 particular scenario. And when the operation goes awry, 5 then you have to -- you have to deal with those 6 decisions you made early on, which can sometimes 7 complicate future operations. As it did in February 8 of -- 2014? 9 Q. Okay. So if I'm hearing you correctly --

10 A. Yes. 11 Q. -- maybe some of the procedures that 12 Dr. Moosa performed prior to February 14, 2011, 13 provided some context for some of the problems that 14 arose during that procedure? 15 A. It added to the complexity of the remedy. 16 Q. Okay. I understand. But you don't have a 17 problem with the surgical technique that he used during 18 the procedures predating February 14, 2011? 19 A. No. 20 Q. And I guess -- you wouldn't know -- neither 21 you nor Dr. Moosa, if put in that position, would know 22 what would happen down the road at the time of surgery 23 on February 14, 2011; correct? 24 A. Correct.

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1 Q. And only with the benefit of hindsight that 2 you can say that some of the choices that Dr. Moosa 3 made with the prior surgeries before February 14, 2011, 4 may have contributed to the complexity of the remedy; 5 correct? 6 A. Correct. 7 Q. Okay. Before February 14, Dr. Moosa did 8 attempt to use autologous tissue first; correct? 9 A. Correct.

10 Q. And that was the first of other options that 11 you identified at the beginning of the deposition that 12 he should have attempted to do before using the 13 cryopreserved vein; correct? 14 A. Correct. 15 Q. Okay. And the attempted use of autologous 16 vein was pulled from the ipsilateral limb, and that 17 would be the right saphenous vein; correct? 18 A. Correct. 19 Q. And he attempted to harvest that -- well, he 20 did harvest that and used it in a surgery on July 29, 21 2010; correct? 22 A. Correct. 23 Q. And then on August 3, 2010, he used the 24 ipsilateral superficial femoral artery; correct?

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1 A. Correct. 2 Q. And then on August 25, 2010, Dr. Moosa 3 harvested the contralateral, so the saphenous vein from 4 the left leg? 5 A. Correct. 6 Q. Now, are you here to express an opinion that 7 Dr. Moosa had additional autologous conduit available 8 to him for use in surgery on February the 14th, 2011? 9 A. He did.

10 Q. Okay. And what material was that? 11 A. He had the remaining greater saphenous vein of 12 his left leg, he had the short saphenous vein of both 13 legs, and he had arm veins of both arms. 14 Q. Okay. Did you review any of the medical 15 records in which Dr. Moosa had evaluated the 16 suitability of the remaining conduit as a patch? 17 A. I don't understand. 18 Q. Yeah, let me rephrase the question. In the 19 materials that were sent to you, did you happen upon 20 any records indicating that Dr. Moosa had evaluated the 21 suitability of the remaining conduit for use as a 22 patch? 23 A. No. 24 Q. Okay. And if Dr. Moosa had evaluated the use


10 (Pages 37 to 40)

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1 of the saphenous vein in the contralateral limb and had 2 ruled it out as a use -- as a viable conduit for bypass 3 procedure or a patch, would you agree that that met the 4 standard of care? 5 A. I could answer that if I'm allowed to expound 6 on that answer. 7 Q. Okay. First, yes or no and then I'll give you 8 a chance to expound. 9 A. Okay. I would say -- I would say yes, it was

10 the standard of care. 11 Q. Okay. So you would agree with me that the 12 standard of care was met when Dr. Moosa evaluated the 13 use of the left saphenous vein and ruled out its 14 suitability --15 A. Yes. The greater saphenous vein? 16 Q. Yes. 17 A. Yes. 18 Q. Okay. Now, can there be reasons -- can you 19 identify reasons why autologous conduit is not suitable 20 for use as either a bypass or a graft? 21 A. Well, the way that we do surveillance to 22 determine whether a vein is suitable is often with 23 ultrasound. However, there are limitations to 24 ultrasound so that we will often look at the vein

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1 directly in the operating room and then make that 2 determination if they're suitable or not. 3 Q. Okay. What is the standard that's expressed 4 in the medical literature in terms of the size of 5 available conduit? Is there a threshold above and 6 below which conduit becomes suitable or not suitable? 7 A. You'll find literature to say anywhere from 8 2.5 to 3 centimeters -- I'm sorry, 2.5 to 3 millimeters 9 in diameter --

10 Q. Okay. 11 A. -- will be suitable. But that's usually 12 direct measurement, direct vision and not ultrasound 13 necessarily. 14 Q. Okay. You and I can agree that if conduit is 15 2 millimeters in diameter, that that would be 16 undersized and unsuitable for autologous conduit? 17 A. It is undersized under direct vision if it 18 measures out at 2 centimeters -- 2 millimeters, 19 correct. 20 Q. Okay. Are there other reasons why autologous 21 conduit is not suitable? 22 A. If the patient has had a previous episode of 23 phlebitis. 24 Q. Okay.

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1 A. For instance, if the veins are not suitable 2 due to IV drug abuse, venal punctures, blood drawing, 3 IVs, things of that nature. 4 Q. Okay. And can the friability -- if that's 5 even a word -- of the autologous conduit, can that come 6 into play in a vascular surgeon's decision about 7 whether to use that type of conduit in a repair 8 procedure? 9 A. Yes.

10 Q. And if it's friable, what does that mean? 11 A. That means it's not suitable for bypass. It 12 can be of poor quality. 13 Q. What does that mean in terms of the procedure, 14 though? It means that it's difficult for the 15 anastomosis to be successful? 16 A. Friability means that it has poor integrity. 17 Q. It tears apart? 18 A. It tears apart, rip. Those are good words. 19 Q. And if a vein or artery tears apart, the rip 20 doesn't do a good job of holding the blood within the 21 conduit; correct? 22 A. Correct. 23 Q. And that would have life-threatening 24 consequences for the patient?

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1 A. Correct. 2 Q. Can cancer treatments such as radiation 3 therapy cause veins and arteries to be friable? 4 A. It can. 5 Q. Did you see a history of that in 6 Mr. Heatherly's chart? 7 A. I did. 8 Q. Did you form a medical opinion as to whether 9 the history of cancer treatment may have caused or

10 contributed to cause the friability in Mr. Heatherly's 11 vein or arteries? 12 A. It's possible. But the radiation therapy was 13 certainly at least -- almost 20 to 30 years before. 14 Q. So you would discount that? 15 A. Yeah, I don't think that -- to me, it would 16 not play a big role. 17 Q. Okay. And is that your opinion to a 18 reasonable degree of medical certainty? 19 A. Yes. 20 Q. Can smoking cause friability of arteries and 21 veins? 22 A. Of veins, no. 23 Q. Of arteries? 24 A. Arteries it adds to atherosclerosis. It


11 (Pages 41 to 44)

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1 should not make the job any more or less difficult if 2 you're a smoker. 3 Q. Did Mr. Heatherly have a history of a 4 significant smoking habit? 5 A. I know he smoked. 6 Q. Okay. Did you evaluate the extent of his 7 smoking history? 8 A. No, I did not come across that in terms of 9 packs per year.

10 Q. And can the number of packs per year impact 11 the health of a patient's arteries? 12 A. Sure. 13 Q. So the more packs per year a patient smoked, 14 the more diseased his or her arteries can become? 15 A. It can be, yes. 16 Q. And then, Doctor, can autologous tissue be 17 less suitable if previous autologous conduit has 18 failed? Can that be an indication that autologous 19 tissue is more or less suitable? 20 A. What is the -- failure caused by what? 21 Q. Well, in this case we know that Dr. Moosa 22 attempted to use autologous conduit three times before 23 February 14, 2011. 24 A. Yes.

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1 Q. And we know that at least some of that 2 grafting did not -- did not remain patent? 3 A. That's correct. 4 Q. Would you leave it to a doctor's discretion in 5 performing procedures where autologous conduit has not 6 remained patent to take that into play and into 7 consideration in deciding whether to attempt another 8 procedure using autologous conduit? 9 A. You're assuming that the graft failed because

10 the vein was of poor quality. 11 Q. Well, did you decipher from the medical 12 records the reason for the graft failure? 13 A. Yes. 14 Q. Okay. Do you have an opinion on that? 15 A. Yeah. The very first operation where it 16 failed and they had to return the patient to the 17 operating room on August 3, 2010, there were technical 18 reasons why everything failed. There was retained 19 plaque in the profunda femoris artery that caused 20 thrombosis of the graft. And then the problem with 21 grafts once they thrombose is that they are more likely 22 to thrombose again in the short term. 23 So my interpretation of the operative note was 24 that it was not due to poor quality of vein but due to

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1 a technical issue. 2 Q. Okay. And you're referring there to the 3 operative note of the procedure performed on July 29, 4 2010? 5 A. The operative note on August 3, 2010, where 6 Dr. Moosa indicates that there was an incomplete 7 endarterectomy of the deep femoral artery requiring 8 additional endarterectomy and additional patching. 9 Q. Okay. Did you review any of the other

10 operative notes in which autologous conduit was used to 11 determine whether or not the conduit itself had 12 weakness? 13 A. He indicated in his operative note of 14 August 25, 2010, that the vein itself was thin-walled. 15 That was the part of the vein that had blown out and 16 was bleeding that required that operation. 17 Q. Okay. And Doctor, you and I can agree that 18 the vein wall that he expressed as having the weakness 19 was the graft itself; correct? 20 A. Correct. 21 Q. And that was the graft on the contralateral 22 limb? 23 A. Correct. 24 Q. All right.

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1 A. That was the graft that he used -- that he 2 replaced with the contralateral limb. 3 Q. Right. The saphenous vein harvested from the 4 left leg is what ruptured? 5 A. Correct. 6 Q. Okay. All right. And so as we discussed, 7 the -- setting aside patency, I'll just talk general 8 terms. You would agree with me that if attempts had 9 been made in vascular surgery to use autologous graft

10 material and that graft material has proved weak or 11 unsuitable for keeping arteries patent, that the 12 physician can exercise his or her discretion at whether 13 to continue attempting to use autologous grafting 14 material? 15 A. I could answer that yes or no if I'm allowed 16 to add to that. 17 Q. Okay. 18 A. I would say yes. 19 Q. Okay. 20 A. Provided, of course, the problem isn't related 21 to infection. 22 Q. Okay. Was there infection present as of 23 8/25/10? 24 A. Dr. Moosa claims that he did not find evidence


12 (Pages 45 to 48)

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1 of infection based on his observation. 2 Q. Okay. Now, did you see the patient, first of 3 all? 4 A. No. 5 Q. Okay. And so would you agree that in terms 6 of between you and Dr. Moosa, who has the more reliable 7 point of observation for the patient itself it would be 8 Dr. Moosa? 9 A. Yes.

10 Q. And in interpreting his operative note as of 11 8/25/2010, his interpretation and impression based on 12 his observation and presentation was that there was no 13 infection present as of that date; correct? 14 A. Correct. 15 Q. All right. Now, I do want to talk about the 16 infection. But before we get there, can you and I 17 agree that -- we talked about limb amputation mortality 18 rates. Can you and I agree that limb amputation 19 mortality rates generally increase for CLI patients 20 when there is absence of good quality autologous 21 conduit? When --22 COURT REPORTER: I'm sorry, was there an 23 answer? I didn't hear one. 24 MR. WINSLOW: He didn't answer it. I

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1 could tell that he didn't understand the question. 2 Q. When autologous conduit is unsuitable or 3 unavailable, does the mortality rate for amputation 4 increase, decrease, or stay the same? 5 A. I've never been asked that question before. I 6 don't know if -- I don't know the answer. 7 Q. Okay. Would you agree that when autologous 8 conduit is not available that the medical literature 9 says that, you know, the gold standard for fixing

10 infrainguinal occlusive diseases is no longer 11 available, that you're left basically with the second 12 or third best option at that point? 13 A. Are you asking me that the success rate drops 14 off when you can't use -- yes, autologous graft. Yes. 15 Q. And at that point, your options are to use the 16 remote bypass procedure that you expressed in your 17 opinion. 18 A. In the face of infection. 19 Q. Okay. 20 A. In the face of infection, yes. 21 Q. All right. And then another option -- you and 22 I might not agree on -- but another option would be 23 agree to use cryopreserved saphenous vein in going 24 through the infected field itself?

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1 A. I didn't -- I did tell you earlier that it 2 is -- it has been used to go through infected fields. 3 But as a last resort before -- you've exhausted the 4 other possibilities. Again, it depends on how severe 5 the infection is and the virulence and what organisms 6 have been cultured out. That plays a strong role in 7 whether you choose to place any kind of conduit through 8 an infected field. 9 Q. Okay. Now, I inferred from your response that

10 you believe that the organism in this case would 11 contraindicate use of cryopreserved vein as a patch in 12 an infected field? 13 A. Any material --14 Q. Okay. 15 A. -- in this field. 16 Q. Okay. And what is the organism? 17 A. It was E. coli, Proteus, P-r-o-t-e-u-s, and 18 Enterococcus faecalis.19 Q. And did you form an opinion as to the source 20 of the Enterococcus faecalis organism? 21 A. Well, that's generally bowel flora, GI 22 contents. Bowel flora. 23 Q. So that could have been an infection that was 24 sourced by the patient himself?

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1 A. Yes. 2 Q. Do you have an opinion as to the source of the 3 infection generally? And let me -- maybe I can short 4 circuit this. Do you have any opinions that are 5 critical of Dr. Moosa to a reasonable degree of medical 6 certainty regarding the source of the infection? 7 A. Sorry? 8 Q. Do you think that Dr. Moosa caused or 9 contributed to cause the infection?

10 A. No. 11 Q. And you're not here to express any opinions on 12 violations of the standard of care relative to the 13 infection itself? 14 A. No. 15 Q. So the combination of these organisms, what 16 about these three organisms would contraindicate the 17 use of any conduit in that infected field? And that 18 would be autologous cryopreserved vein or synthetic; 19 correct? 20 A. Yes. Obviously, synthetic would not be one 21 that you would ever consider. However, autologous or 22 cryopreserved vein in the face of these organisms have 23 a high likelihood of being reinfected and actually 24 rupturing and blowing out.


13 (Pages 49 to 52)

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1 Q. Okay. Is it specific to these organisms? 2 A. Yes. There's a particular group. These 3 happen to be three of the ones we worry about. There's 4 another that we worry about, but they're all bowel 5 flora organisms. But the answer would be, yes, we 6 worry about these in particular. 7 Q. And why is that? 8 A. They are hard to eradicate. And because of 9 that reason, you know, you're always dealing with a

10 continued infection. As opposed to something less 11 virulent that can be easily treated and not the kind of 12 bacteria that erodes through vessels and such. 13 Q. Do you have any, as you sit here today, any 14 citations to medical literature, general articles 15 studies, etc., that supports your opinion that use of 16 any conduit in an infected field with these organisms 17 is contraindicated? 18 A. No. 19 Q. To your knowledge, do such studies exist? 20 A. Oh, there are studies out there that tell you 21 to be very suspect and to be very hesitant to do -- to 22 put anything through fields that culture out these 23 organisms. So as a general rule, most vascular 24 surgeons would not want to put anything back into the

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1 field that cultured out those organisms.2 Q. But in terms of medical studies or journal 3 articles that specifically support your opinion that 4 the use of any conduit in an infected field with these 5 organisms is contraindicated, are you aware of any 6 studies that have -- that support that conclusion? 7 A. When you say "contraindicated," you're talking 8 about 100 percent? 9 Q. Yes.

10 A. Yeah -- so no. 11 Q. What about relative contraindicated? 12 A. Yeah, that would be it. I mean, again, these 13 organisms are horrendous so that you would almost do 14 anything possible -- anything other than putting a 15 conduit through a field that cultures out this -- you'd 16 come up with some other plan. 17 Q. Okay. And from the disclosure statement, I 18 understand the alternative plan that you would have 19 pursued in this case would have been a remote bypass 20 procedure? 21 A. Correct. 22 Q. Do you -- I mean, obviously, since you weren't 23 there with the patient, you didn't have an opportunity 24 to evaluate the extent of the infection itself or

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1 measure the infected field; correct? 2 A. Correct. 3 Q. You have gleaned from the record based on the 4 organisms that grew out of the culture that it was a 5 particularly strong bacteria? 6 A. Correct. 7 Q. But in terms of the scope of the infection 8 itself that was present on February 14, 2011, you 9 really can't say with any specificity the extent of the

10 infection itself? 11 A. Correct. 12 Q. And the extent and scope of the infection 13 impacts a vascular surgeon's decision making regarding 14 whether a remote bypass procedure is practical for a 15 patient? 16 A. Yes. 17 Q. And if the scope of the infection is broad 18 enough, that can actually preclude performance of a 19 remote bypass procedure in some patients? 20 A. On certain remote bypasses, yes. 21 Q. Now, when you say "certain remote bypasses," 22 what do you mean by that? 23 A. Well, the two remote bypasses that we will 24 often offer patients would be a right, in this case

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1 it's the patient's right leg, so it would be some form 2 of axillofemoral bypass, whether it be through the 3 superficial femoral artery, whether it be through the 4 profunda femoris artery, or popliteal artery. That 5 would be one remote bypass. And that certainly would 6 be impacted by the infection, the scope of the 7 infection. And the other bypass is called an obturator 8 bypass. And that would, in all cases, avoid the groin 9 infection.

10 Q. Okay. So Doctor, is it your testimony that to 11 a reason degree of medical certainty that had Dr. Moosa 12 performed an obturator bypass procedure that he would 13 have certainty of avoiding the infected field all 14 together? 15 A. Yes. 16 Q. Okay. And can you explain that, please? 17 A. Yeah. An obturator bypass is very much remote 18 to the vessels in the femoral -- in the right groin. 19 It is not anywhere close to it as it would be using an 20 axillofemoral bypass. An obturator bypass is actually 21 an operation specifically used for extensive groin 22 infection or extensive infections of the femoral area. 23 It is -- it was invented basically for that reason and 24 that reason only.


14 (Pages 53 to 56)

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1 Q. Okay. Where was the infection located? 2 A. It was in the right femoral artery, right 3 groin. 4 Q. Okay. Can you be anymore specific? Was it 5 just in the femoral artery? 6 A. It was basically anteriorly in the right 7 groin. And I would assume it extended further down 8 along the incision. The incision was probably medial 9 thigh. Superficial, however.

10 Q. Okay. So is it your testimony that the 11 infection was local to the incision itself? 12 A. Yes. It was local to the incision, and it 13 certainly could be spreading throughout the superficial 14 planes of the leg. That's a possibility, not having 15 seen a picture. 16 Q. Okay. Could the infection have spread to the 17 vasculature? Can you be more specific as to whether it 18 was in the common --19 A. Yeah. It clearly had involved the common 20 femoral artery, the profunda femoris artery. No 21 question it had involved those vessels. 22 Q. Okay. Did it extend to all three branches of 23 the trifurcation? 24 A. Well, the superficial femoral artery was

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1 already harvested to use as a patch so that we're 2 really talking about two vessels, two blood vessels in 3 the right groin. 4 Q. And was it at the level of what was then the 5 the bifurcation, or was it distal to that or proximal 6 to that? 7 A. It was probably -- it was at that region and 8 distal to it. 9 Q. Okay. Do you have an opinion as to whether in

10 the face of the location of the infection itself 11 whether a right axillofemoral bypass was even possible 12 in this patient? 13 A. I can't -- that I can't answer without 14 actually having seen -- without having looked at the 15 infection planes itself. 16 Q. Okay. And so you would leave that to the 17 operating physician's discretion? 18 A. Yes. 19 Q. And if Dr. Moosa had ruled out based on his 20 own observations the possibility of that procedure 21 being performed, you would say that meets the standard 22 of care? 23 A. Yes. 24 Q. Okay. And so really what we're talking about

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1 is the obturator bypass procedure? 2 A. Correct. 3 Q. What would be the inflow for that procedure? 4 A. You could bring it off of the common iliac 5 artery on the right, occasionally, the external iliac 6 artery on the right, and even the hypogastric artery on 7 the right. So you actually have a number of choices. 8 Q. So we're talking about anatomy that's distal 9 or above the area of the infection?

10 A. It's above the area of infection. 11 Q. Okay. And what would be the outflow target 12 vessel? 13 A. It would be the superficial femoral artery or 14 most commonly the popliteal artery -- the above-knee 15 popliteal artery. 16 Q. What is the conduit, then, to use for a remote 17 bypass procedure? 18 A. Most of the time they're prosthetic grafts. 19 Q. Okay. Is there a particular prosthesis that 20 you would say would be more advantageous to Heatherly, 21 or does it matter? 22 A. Personal preference is GORE-TEX grafts. 23 Q. Setting aside personal preference, are you 24 here to say that the standard of care requires a

Page 56

1 specific prosthesis in this particular case? 2 A. No. For a remote bypass? 3 Q. Correct. 4 A. No. 5 Q. Would you agree that a prosthetic conduit, if 6 used completely to avoid the infection is a suitable 7 conduit; but yet if it does not avoid infection 8 completely and becomes infected, then you're 9 introducing the risk of infection to the patient's

10 abdomen? 11 A. Correct. 12 Q. And that would be an increased risk of harm to 13 the patient? 14 A. Correct. 15 Q. Prosthetic grafts, you would agree, can become 16 infected whether they're introduced into the infected 17 field or not? 18 A. Yes. 19 Q. Those infections, if bleeded into the 20 prosthesis, can propagate both distally and proximally 21 along the length of the graft? 22 A. Yes. 23 Q. And an infected graft would more likely than 24 not need to be excised; correct?


15 (Pages 57 to 60)

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1 A. Yes. 2 Q. And that would add time, expense, and risk to 3 the patient's course; correct? 4 A. Yes. 5 Q. All right. Would you agree that use of 6 prosthetic conduit for an obturator bypass procedure 7 requires some evaluation of positioning in an 8 extra-anatomic plane which is remote from the field? 9 A. Yes.

10 Q. And that requires a certain judgment; 11 correct? 12 A. Yes. 13 Q. And that certain judgment is based upon 14 observing the patient himself? 15 A. Yes. 16 Q. And that's difficult to do having only looked 17 at the medical records; correct? 18 A. Yes. 19 Q. And you wouldn't operate or try to perform 20 this procedure on patients whom you've only reviewed 21 medical records for; correct? 22 A. Yes. 23 Q. All right. And the weight of the patient 24 presents difficulties in performing an obturator bypass

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1 procedure? 2 A. Yes. 3 Q. Is a patient who weighs 250 pounds more 4 difficult to perform this procedure on than someone 5 who's within a normal BMI index? 6 A. Yes. 7 Q. Would you agree that if your plan of surgery 8 was to connect the femoral -- I'm sorry, the iliac 9 artery to the above-the-knee popliteal or even

10 subdistal to that, that you would not be perfusing the 11 deep femoral artery? 12 A. Correct. 13 Q. Can you really say sitting here today that you 14 would have been able to connect the iliac artery with 15 the above-the-knee popliteal artery? 16 A. It could have been a little bit lower than the 17 popliteal. But no question, yes. 18 Q. When you say "a little bit lower," I mean, are 19 we talking about below the knee? 20 A. At the knee or below the knee. In other 21 words, to an area where the tissue plane had not been 22 violated from the previous operations. 23 Q. Okay. Is it possible that -- well, strike 24 that.

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1 Would you agree that the obturator bypass is a 2 more technically difficult procedure than a bypass in 3 the -- than the procedure that was performed? Yeah, 4 let me strike the question and start over. 5 Would you agree that an obturator bypass 6 procedure is a more technically difficult surgical 7 procedure than the bypass procedure using the 8 cryopreserved vein that Dr. Moosa performed in February 9 of 2011?

10 A. Yes. 11 Q. Have you formed an opinion to a reasonable 12 degree of medical certainty as to whether performing 13 the obturator remote bypass procedure would have 14 changed the outcome in this case? 15 A. Yes. 16 Q. Okay. And what is your opinion? 17 A. I think it would have been successful, and 18 they would have saved his leg. 19 Q. Okay. And can you point to any study or 20 medical literature to support your opinion? 21 A. If you're asking me to quote an article, we'll 22 have to go to the textbooks. I can certainly get you 23 something. I don't have that now. 24 Q. Okay. And as you sit here today, do you leave

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1 open the possibility that even with a successful remote 2 bypass procedure where the artery remains patent 3 following the procedure that, you know, the 4 comorbidities of the patient could have led to the same 5 outcome, meaning that he had further occlusive disease 6 and lost the limb? 7 A. I could only say that the likelihood of 8 salvage with a remote bypass is infinitely higher than 9 the success rate of placing a cryopreserved vein in an

10 infected field. 11 Q. Okay. And when you say "infinitely higher," 12 can you talk about percentages specifically? Or is 13 that too difficult to do based on the current science 14 in your field? 15 A. Well, obviously, the number of obturator 16 bypasses do not come close to the number of lower 17 extremity bypasses done in other ways. However, I 18 would be willing to say that the success rate of an 19 obturator bypass, a remote bypass in this patient would 20 have a greater than 80 percent likelihood of success. 21 Q. And you're pulling that number, 80 percent, 22 sort of out of thin air as we sit here. And I don't 23 mean to --24 A. Sure.


16 (Pages 61 to 64)

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1 Q. -- be rude about that. Is there a study that 2 says 80 percent success rate for this procedure in 3 patients like this? 4 A. No, not really. Because the number of 5 obturator bypasses are not that great. However, it -- 6 bypasses are bypasses, whether it be an axillofemoral 7 bypass or an obturator popliteal bypass with 8 prosthetics, it's still a bypass. It's still with 9 prosthetic material. And it's no different than a

10 prosthetic bypass from the femoral to the popliteal 11 artery. So if you're looking for a specific study, I 12 can't give it to you. I'm sort of extrapolating from 13 other studies that were done with similar types of 14 material. But I believe that that would be an accurate 15 estimate. 16 Q. Okay. And that estimate, in your opinion, 17 presupposed that an extra-anatomical bypass was 18 physiologically possible in this patient? 19 A. Correct. 20 Q. Meaning that the extra-anatomical field was 21 available, the real estate, so to speak, was actually 22 available in which to perform -- let me restate the 23 question. Doctor, your opinions presuppose that the 24 extra-anatomical plane, the so-called real estate, was

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1 available for Dr. Moosa to perform an obturator remote 2 bypass procedure? 3 A. Correct. 4 Q. If Dr. Moosa had formed the judgment based on 5 his own observations of the patient that the obturator 6 bypass was physiologically impossible, would you agree 7 that his use of cryopreserved vein through the infected 8 field at that time met the standard of care? 9 A. No.

10 Q. Okay. And why is that? 11 A. I don't think there's a standard of care any 12 place to put an -- to put a cryopreserved vein through 13 an area of infection that harbored those organisms, 14 that had already failed on multiple occasions before. 15 I think the better part of valor, truth be told, would 16 have been to not do that but to actually recommend an 17 amputation of the leg. 18 Q. Okay. So --19 A. And the reason for that is that sometimes you 20 have to sacrifice the leg to save a life. This patient 21 actually blew his artery out on multiple -- and 22 bypasses out on multiple occasions. So that there was 23 a chance that he could have exsanguinated and died. So 24 that, I think, is the risk that you take by persisting

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1 and doing things that you would not normally do as in 2 putting conduit through infected fields. 3 Q. Okay. Well, let me ask you this: How is 4 Mr. Heatherly doing today? 5 A. I know he had his amputation, but that's as 6 far as I can tell you. 7 Q. Okay. Is he alive or dead? 8 A. I understand he's alive. 9 Q. All right. And so whatever risk was presented

10 to him of death by performing the cryopreserved vein 11 procedure rather than amputating right then and there 12 was not realized in this patient? 13 A. It was not. 14 Q. Okay. Just a couple of follow-up questions on 15 some background stuff. I understand from reviewing 16 your CV that you went to medical school in Italy; is 17 that correct? 18 Q. Did you apply to medical school in the United 19 States? 20 A. Yes. 21 Q. Did you get in? 22 A. I did not. 23 Q. And why not? 24 A. You'll have to ask them. I guess 3.5 GPA

Page 64

1 wasn't high enough. 2 Q. So was it credentials the issue or something 3 other than that? 4 A. It was -- I can't tell you why I wasn't 5 accepted. But I wanted to be a physician so I just 6 continued to plug away. 7 Q. Okay, fair enough. Have you ever been sued? 8 A. I have. 9 Q. And I really don't care about other lawsuits,

10 but in the medical malpractice side? 11 A. I was sued once -- actually, twice. Once 12 which basically never came to trial. It was -- it 13 wasn't settled, it was just ended. And then one, I was 14 sued and I actually made the decision to settle the 15 case. 16 Q. Okay. In the first one where the case was 17 resolved, there was no payment made on your behalf? 18 A. No payment. 19 Q. What was the nature of that case? 20 A. It was someone -- well, in those days we were 21 doing lumbar sympathectomies for something called 22 causalgia, c-a-u-s-a-l-g-i-a. The sympathectomy was 23 done, and the plaintiff claimed that the result was not 24 good. And that's what the lawsuit was about, but it


17 (Pages 65 to 68)

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1 went away. There was no payment. 2 Q. Okay. Then the other case where you decided 3 to make a payment? 4 A. Yes. This was someone that developed a severe 5 infection in something called a Charcot foot. And this 6 patient went on to lose his leg. 7 Q. Okay. Was this an above-the-knee 8 amputation? 9 A. Below the knee.

10 Q. Below-the-knee amputation. And you were 11 the --12 A. I was the treating surgeon. 13 Q. Okay. And what procedures did you perform for 14 the patient? 15 A. A below-knee amputation. 16 Q. Oh, so you were the amputating physician? 17 A. Right. 18 Q. Was there a different cardiovascular 19 surgeon? 20 A. No. 21 Q. Did he receive any cardiovascular like, I 22 guess, endovascular treatment or anything? 23 A. No, no, it wasn't a circulation issue. It was 24 purely an infection issue which we couldn't control.

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1 Q. Was he a diabetic? 2 A. A diabetic infection, yes. 3 Q. Okay. What was the -- where was that case 4 pending? 5 A. Here in New Haven County. Must be in the year 6 -- must be around 2004, I think. 7 Q. That was the date of the settlement or the 8 date the suit was filed? 9 A. Possibly the settlement.

10 Q. Do you remember the name of the lawsuit? 11 A. The attorney? 12 Q. We can go with the attorney. 13 A. My attorney was Penny Mason, M-a-s-o-n. 14 Q. Any relation to Perry? That was a stupid 15 joke. And the defense attorney, do you remember 16 that? 17 A. No. 18 Q. And the patient's name? 19 A. I don't remember. I do have that here at the 20 office, though. 21 Q. Okay. And then is your license to practice 22 medicine here in the state of Connecticut? 23 A. Yes. 24 Q. Is it current and active?

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1 A. Yes. 2 Q. Have you ever had any action taken against 3 your license? 4 A. No. 5 Q. Are you licensed in any other state? 6 A. No. 7 Q. Have your privileges to practice medicine at 8 any hospitals or institutions ever been suspended or 9 diminished in any way?

10 A. No. 11 Q. Are you still affiliated with Yale? 12 A. Yes. 13 Q. In what capacity? 14 A. I'm an attending vascular surgeon. 15 Q. That's at Yale Hospital? 16 A. Correct. 17 Q. Had you ever reviewed any cases for Joe 18 Bartholomew before? B-a-r-t-h-o-l-o-m-e-w. 19 A. I have to be honest. There may have been one. 20 I really don't remember. 21 Q. Does the Cook Ysursa Law Firm ring a bell? 22 A. No. 23 Q. Ever review any cases for Bruce Cook or --24 A. No. The problem is that with Med Quest on

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1 occasion, if they use Med Quest, there could 2 conceivably have been something that came through the 3 e-mails. I don't often pay attention to the attorneys' 4 names. So it is possible that something could come 5 through. 6 Q. This is out of more academic curiosity. I 7 didn't find any. Are you aware of any randomized 8 trials comparing obturator bypass vs. cryopreserved 9 vein and outcomes and all that?

10 A. No -- no. 11 Q. Any medical literature comparing those two 12 approaches at all, to your knowledge? 13 A. No. 14 Q. Okay. Would you agree that that vascular 15 reconstruction when you've got an infected field, 16 whether you go through it, around it, or some other 17 way, is one of the most challenging technical problems 18 in vascular surgery? 19 A. Yes. 20 Q. Have you and I discussed all of the opinions 21 that you intend to express at trial? 22 A. Just give me a moment. My only concern was 23 the type of coverage Dr. Moosa applied to the area. He 24 uses the sartorius muscle as a flap repeatedly. He may


18 (Pages 69 to 72)

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1 have -- he may have benefited by a different flap joist 2 later on in the process. 3 Q. Okay. And which flap would that have been? 4 A. I'm going to step outside of my field for a 5 second, because I usually get plastic surgery involved, 6 but we would use a rectus muscle flap. 7 Q. And so if that's outside of your field, you 8 can't express that opinion to a reasonable degree of 9 medical certainty that a rectus muscle -- and I'm

10 probably butchering that -- that the rectus muscle flap 11 should have been used in this case? 12 A. It's one of the flap options that are used 13 specifically for a groin and femoral artery 14 infection. 15 Q. Okay. Can you state with a reasonable degree 16 of medical certainty that that flap versus the 17 sartorius muscle flap would have changed the outcome in 18 this patient? 19 A. No. 20 Q. All right. Have we now discussed all of the 21 opinions that you intend to express at trial in this 22 case? 23 A. The only other thing I'm going to bring up is 24 recognizing that there was an infection there

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1 earlier. 2 Q. Okay. And as we discussed, the first 3 documented indication of an infection was in February 4 of 2011. 5 A. And that is true. And that's based on the 6 culture report and the description of the wound. But I 7 could not find anything prior to that, either in the 8 form of cultures or gram stains, that were done that 9 might have helped make that diagnosis in the earlier

10 operation. 11 Q. Well, Doctor, in September of 2010, that's the 12 date on which Dr. Moosa performed -- a right 13 sartorius muscle flap was used in September of 2010; is 14 that correct? 15 A. September 21, 2010. 16 Q. Okay. And you'll recall from his deposition 17 that Dr. Moosa recalls seeking an ID consult as of that 18 date; correct? 19 A. Yes. 20 Q. And so it your opinion that he should have 21 identified the possibility of infection prior to 22 September 20, 2010? 23 A. Yes. 24 Q. And that would have been when?

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1 A. I'm going to say it would have been -- I'll 2 tell you which -- okay. August 25, 2010. 3 Q. Okay. So it's your opinion that Mr. Heatherly 4 had an infection as of that date? 5 A. Could very well have had an infection. 6 Q. Let me ask you this: Can you state with a 7 reasonable degree of medical certainty that 8 Mr. Heatherly, on a scale of what's more probably true 9 than not, that Mr. Heatherly had an infection as of

10 August 25, 2010? 11 A. I would say that it was probably greater than 12 50 percent that he had an infection at that time. 13 Q. Okay. And what's the basis of your opinion in 14 that regard? 15 A. That would be based on the fact that the 16 patient had a draining lymphatic fistula from the 17 groin; that the patient blew out his vein. I think the 18 combination of those two makes you suspect that there 19 was an infection. That it's up to you to prove that 20 one way or the other. 21 Q. Okay. And so what should Dr. Moosa have done, 22 then, possessed of this knowledge if he had it? 23 A. I think one of the things he could have done 24 would have been to take the piece of that vein that he

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1 excised, that blew out, back for a culture. Culture 2 the vein that was removed, certainly culture the 3 operative field. Those would have been at least a 4 start. 5 Q. And you would agree that he did all of that as 6 of the very next procedure on 9/20/2010; correct? 7 A. Well, now it -- yes, he did it at that time, 8 correct. 9 Q. Okay. Do you have any indication based on the

10 office visit note of September 24, 2010, which would 11 have been between the procedure on August 25 and the 12 procedure on 9/20, based on that office visit note, 13 whether there were signs or symptoms of an infection 14 present as of that date? 15 A. Would just mention that date again? 16 Q. 9/14. 17 A. All right. Yeah, on 9/14, there was a 18 hematoma and a wound dehiscence, meaning the wound 19 opened up. And then prior to that office visit, on 20 August 17, 2010, there was drainage from the right 21 groin. He removed some staples and evacuated 10-20 ccs 22 of serous fluid. That is what I was referring to as a 23 lymphatic fistula. 24 Q. That's on 9/14/2010?


19 (Pages 73 to 76)

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1 A. That's on August 17, 2010. That was an office 2 visit. I could not find evidence of a culture taken at 3 the time. His plan was to have the patient return in 4 one week, but he ended up having to go to the 5 hospital and I think he -- yeah, he blew his graft out, 6 basically. So he ended up back in the hospital. 7 Q. And you would agree, Doctor, that as of 8 August 17, 2010, he started oral antibiotics, Dr. Moosa 9 did?

10 A. He did. 11 Q. Okay. And so that would be a treatment for 12 suspected infection, would it not? 13 A. Correct. 14 Q. And if his plan was to treat the infection 15 orally by antibiotic and see the patient in one week, 16 that would meet the standard of care for treatment of a 17 suspected infection; correct? 18 A. Yes. 19 Q. In the interim, the patient returns to the 20 hospital with an emergent need for surgical 21 intervention; correct? 22 A. Correct. 23 Q. And in follow-up to that surgical procedure, 24 Dr. Moosa actually discussed -- was cognizant of and

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1 following and treating the possibility of infection as 2 of September 20, 2010; correct? 3 A. I'm not sure how he was treating the 4 infection. 5 Q. Well, when we talked about the muscle flap --6 A. Okay. 7 Q. Correct? 8 A. Yes. 9 Q. And he debrided the tissue; correct?

10 A. Correct. 11 Q. And then he tied off the fem-pop bypass that 12 was blocked? 13 A. That he did, yes. 14 Q. Okay. And he was, according to his 15 deposition, looking for an infectious disease consult; 16 correct? 17 A. Yes. 18 Q. And those would all be treatments for 19 suspected infection? 20 A. Correct. 21 Q. And Doctor, you would agree that those 22 treatments were those performed by a reasonably 23 competent vascular surgeon who was suspecting infection 24 and met the standard of care?

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1 A. Yes. 2 Q. Okay. Now, I want to ask you if you agree 3 with the proposition -- before we get to that, I guess 4 we need to ask the question. Have we now discussed all 5 of your opinions that you intend to discuss at trial? 6 A. I believe that's it. 7 Q. Okay. Let me ask you this, do you agree with 8 this proposition? "Currently, cadaver saphenous vein 9 grafts are recommended for patients without suitable

10 conduit in settings of bacterial contamination because 11 of the relative resistance of the material to 12 infection." 13 A. That is -- I know you want a yes or no answer 14 on this one, but that is a broad -- a bold statement to 15 make across the board. 16 Q. So you can't offer an opinion as to whether 17 you agree with that, disagree with that --18 A. I would have to -- there would have to be 19 multiple caveats to that. 20 Q. Okay. How about I'll give you two caveats, 21 and maybe we can get closer to an answer. The first 22 caveat is that the patient presents with lifestyle 23 limiting claudication. We talked about that; 24 correct?

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1 A. Yes. 2 Q. And with 6 centimeters superficial femoral 3 artery stenosis. 4 A. This is someone with an infection. 5 Q. Yes, with lifestyle limiting claudication and 6 femoral artery stenosis greater than or equal to 7 6 centimeters and in the presence of infection. 8 A. Correct. And I'm sorry -- 9 Q. With those caveats --

10 A. Yeah. 11 Q. -- that I just stated, let me read the 12 proposition again and you tell me if you agree or 13 disagree? 14 A. All right 15 Q. "Currently, cadaver saphenous vein grafts are 16 recommended for patients without suitable conduit in 17 settings of bacterial contamination because of the 18 relative resistance of the material to infection."19 A. I'm going to have to disagree. And I'm -- you 20 got to let me say why. 21 Q. Okay. 22 A. Please. 23 Q. Okay. Let me just make sure I understand. 24 A. Sure.


20 (Pages 77 to 80)

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1 Q. You disagree with that proposition? 2 A. I disagree -- I disagree based on -- you have 3 to -- each case is a special case. So the broad 4 description is what I disagree with. 5 Q. Okay. 6 A. There are cases where that is valid. 7 Q. Okay. 8 A. I will say that, no question about it. But 9 you must take into consideration the appearance of the

10 wound and the bacteria that grows out of the wound. 11 Q. All right. Let me read you another snippet 12 here, tell me if you can disagree, agree, or you need 13 more information. 14 "Because they have been reported to be 15 relatively resistant to graft infection, cryopreserved 16 veins have an advantage when revascularization needs to 17 be performed in an infected field."18 MS. BRAUER: I'm just going to 19 object to the nature of this questioning. And out of 20 context -- so you're quoting something, but there's no 21 other context being offered to the doctor. But if you 22 understood the question, Doctor, you may answer. 23 A. Yeah, I can. It's a case-by-case approach. 24 You can use it in certain situations, no question. But

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1 it's always a case-by-case approach, I think, because 2 it's certainly not high up on the list of things you 3 would offer. 4 Q. If cryopreserved vein is indicated, would you 5 agree that it's better for patients with disadvantaged 6 outflow or more distal sites for revascularization? 7 A. You'll have to help me here and say compared 8 to what? 9 Q. Oh, compared to prosthetics.

10 A. Yes. I'm sorry, I have to step back. I'm 11 going to change my answer on that. 12 Q. Okay. 13 A. Okay. Cryopreserved vein, although used in 14 some of these situations we've discussed, does not have 15 the long-term patency as prosthetics. Cryopreserved 16 vein can often be a temporized measure but does not 17 have good long-term patency. Therefore, what that 18 means is it doesn't stay open very long. 19 Q. Okay. Can you tell me the patency rate 20 for CSV -- you understand that to be cryopreserved 21 vein? 22 A. Yes. 23 Q. CSV, can you tell me the percentage patency 24 rate for CSV?

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1 A. One month's good. 2 Q. Okay. What is good? 3 A. I will tell you that we base patency on years 4 in vascular surgery, not months. 5 Q. Are you aware of literature that breaks 6 down --7 A. Well, how about my experience with 8 cryopreserved veins? 9 Q. I'll let you get to that.

10 A. Okay. 11 Q. But are you aware of literature that 12 identifies the patency rate of CSV at one month? 13 A. Yes. It's high. It's greater than 80 14 percent. 15 Q. Okay. And then are you aware of literature 16 that rates patency of CSV at 60 days? 17 A. No. I could tell you six months, one month, 18 maybe a year. 19 Q. What is the six months' rate? 20 A. Six months drops down to 50 percent. 21 Q. And then at one year? 22 A. Close to zero. 23 Q. If the cryopreserved vein establishes patency 24 in the arterial vasculature, is 30 days enough to cure

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1 an infection? 2 A. Not necessarily, no. 3 Q. Is 60 days enough? 4 A. Not necessarily. 5 Q. Okay. Can you offer an opinion to a 6 reasonable degree of medical certainty that if the 7 vasculature in this case had been patent for 30 days 8 that the infection would not have been cured? You 9 can't really say one way or the other, can you?

10 A. We know the infection was never cured in this 11 case. 12 Q. Okay. But can you say if the CSV remained 13 patent for 30 days that the infection would not have 14 been cured? 15 A. I don't think we can answer that. I mean, the 16 patency --17 Q. That's what I want to know. You can't say one 18 way or the other --19 A. Okay, yeah. 20 Q. All right. But we knew at the time that they 21 were transplanted into this individual that there was 22 literature stating that the patency rate at one month 23 is 83 percent? 24 A. Okay, fine.


21 (Pages 81 to 84)

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1 Q. Would you agree with that? 2 A. Yes. 3 Q. Okay. Doctor, I think those are all the 4 questions I have subject to any follow-up. 5 MR. WINSLOW: Stephanie, you have any 6 questions? 7 MS. BRAUER: Yes, I have some 8 follow-up. 9 CROSS-EXAMINATION BY MS. BRAUER:

10 Q. Okay. Doctor, you were asked whether the 11 standard of care was met when Dr. Moosa evaluated the 12 use of other veins such as the greater saphenous vein 13 and ruled it out. 14 A. Yes. 15 Q. And it seemed like you wanted to explain 16 something further. 17 A. Other than that, you know, ultrasound 18 evaluation of veins, whether it be in the legs or the 19 arm, can be notoriously misleading. And that sometimes 20 the only way to know for certain if a vein is of good 21 quality is by actually looking at it directly at 22 surgery when you've exposed it through an incision. 23 That's all I was saying. 24 Q. Okay. And Doctor, do veins typically blow out

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1 simply due to being thin? 2 A. Very rarely. 3 Q. What do they usually -- what is the usual 4 course of that? 5 A. Infection. 6 Q. Okay. And as I think you discussed, the first 7 actual sign of infection or clinical sign of infection 8 was in February of 2011. But does that mean that 9 Dr. Moosa should have been thinking about infection

10 before that? 11 A. Yes, he should have been thinking of it.12 Q. He should have been considering it and looking 13 for it? 14 A. Actually, at the first blow out. So that 15 would have been August 25, 2010. 16 Q. Okay. And Mr. Winslow asked you if you 17 thought practices of vascular surgeons differed from 18 region to region. And I believe you answered that in 19 reality it does, but it seemed like you wanted to 20 explain something a little bit further there. 21 A. Yeah. I mean, the standard of care of 22 Connecticut is the same as the standard of care in 23 St. Louis or in San Francisco. There can be certain 24 biases with institutions on choices of operations, one

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1 particular choice over the another. But that doesn't 2 mean that -- in other words, there's more than one way 3 to skin a cat. So you could do a number of different 4 operations with the same outcome. There may be 5 different choices of operations or the way you go about 6 doing it. That's all. 7 Q. Okay. But you did say the standard of care 8 would be the same in Connecticut and in St. Clair 9 County, Illinois?

10 A. Yes. 11 Q. Do you believe it is more likely than not that 12 Mr. Heatherly would still have his leg today if the 13 standard of care had not been violated by Dr. Moosa in 14 the ways that you have mentioned and that are in your 15 disclosure? 16 MR. WINSLOW: Object to form. 17 Q. Go ahead, Doctor. 18 A. Yes. 19 Q. Yes, he would still have his leg today? 20 A. Yes. 21 Q. Okay. And Doctor, you mentioned you had an 22 opinion regarding the first surgery that Dr. Moosa 23 performed. Would you explain that a little bit further 24 for me?

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1 A. Yes. The patient had limb-threatening 2 ischemia but only rest pain. There was no tissue loss. 3 So that the patient -- the operation the patient needed 4 and would have been successful would have been the 5 first part of the operation that Dr. Moosa performed, 6 which was the endarterectomy of the common femoral and 7 the profunda femoris and a saphenous patch graft 8 angioplasty. He chose to add on a femoral popliteal 9 bypass. And although that was not a deviation from

10 standard of care by adding the femoral popliteal 11 bypass, he did add on another level of complexity where 12 other things potentially could have gone wrong. As in 13 this case, the vein bypass graft thrombosed, 14 necessitating additional intervention, opening up 15 additional tissue planes, things of that nature. 16 So that's all I'm saying, that more than 17 likely, the patient needed something a lot less than 18 the extensive operation Dr. Moosa performed. 19 Q. Okay. I think you briefly touched on this, 20 but I just want to make sure I understand. Were there 21 other procedures that would have been within the 22 standard of care that Dr. Moosa could have employed 23 before using a cryopreserved vein? 24 A. Well, I talked about the remote bypass. But


22 (Pages 85 to 88)

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1 there are other autologous tissues conduits that are 2 available. 3 Q. Okay. 4 A. And I did mention -- I did mention the arm 5 vein. And I did not mention a third choice -- well, I 6 mentioned short saphenous vein. And there's also 7 superficial femoral vein that can be used. So there 8 are other autologous options, even if the leg veins 9 were not suitable.

10 Q. Okay. Thank you. And Mr. Winslow asked you 11 broadly if you thought that certain study materials 12 you've used for medical texts are authoritative in your 13 field. 14 A. Yes. 15 Q. Is it possible that there may be a statement 16 or statements somewhere in all those texts or materials 17 that you may not agree with 100 percent based on your 18 experience and training? 19 A. Yes. 20 Q. Okay. And you mentioned that the opinions 21 expressed in your disclosure are the ones you intend to 22 express at trial. And you mean those concurrent with 23 -- those in addition to the ones you expressed today at 24 your deposition; is that right?

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1 A. Yes. 2 Q. Okay. And have all your opinions today been 3 to a reasonable degree of medical certainty? 4 MR. WINSLOW: Object to form. 5 Subject to that, you can answer. 6 A. Yes. 7 Q. Thank you, Doctor. Those are all my 8 questions. 9 MR. WINSLOW: And I'll just add

10 some follow-up on that question. 11 REDIRECT EXAMINATION BY MR. WINSLOW:12 Q. The opinions that you've expressed to a 13 reasonable degree of medical certainty you've said on 14 the record today, you've also expressed opinions that 15 you said you could not state to a reasonable degree of 16 medical certainty. Can we just agree to let the record 17 reflect your testimony in that regard? 18 A. Yes. 19 Q. All right. Now, your opinion regarding arm 20 vein presupposes that the autologous conduit in the arm 21 would be suitable for conduit revascularization; 22 correct? 23 A. Yes. 24 Q. And the things we discussed about why

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1 autologous conduit can sometimes fail or become 2 unsuitable would apply equally to the arm vein as they 3 would to the veins in the lower extremities; correct? 4 A. Yes. 5 Q. All right. And I believe you said you don't 6 have any been -- or actually I believe you said you do 7 not have an opinion that Dr. Moosa breached the 8 standard of care on July 29, 2010, the date of the 9 first surgery; correct?

10 A. Correct. 11 Q. So while your preference would have been 12 simply to perform the endarterectomy procedures and not 13 perform the bypass procedure, you do not think that 14 Dr. Moosa violated the standard of care by performing 15 the bypass as well as the endarterectomy; correct? 16 A. Correct. 17 Q. Since veins don't typically blow out due to 18 being thin, and you surmised infection could be one 19 explanation as to why a vein might blow out. Are there 20 other reasons why a vein may rupture? 21 A. Other than infection? 22 Q. Yes. 23 A. Well, yeah. Certainly, you know, you 24 mentioned the fact that it was a poor quality.

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1 Friable, thin walled -- sure. 2 Q. And then it could also be thrombosed? It 3 could become thrombosed and then eventually rupture? 4 A. No. 5 Q. Can the plaque buildup within a thin-walled 6 vein cause rupture? 7 A. No. It can calcify if long-term, yes. 8 Q. Okay. Can there be other reasons for a vein 9 being ruptured other than infection and, you know, the

10 friability or the quality of the tissue itself? 11 A. There are reported cases of it happening but 12 not without an explanation in the long term. 13 Q. But in the -- on September -- I'm sorry, on 14 the 25th of --15 A. No --16 Q. On August 25, 2010, when the rupture occurred, 17 Dr. Moosa noted weakness in the vein wall in a graft 18 material that he harvested from the contralateral 19 appendage. You're not here to testify to a reasonable 20 degree of medical certainty that the cause of the 21 rupture was infection, are you? 22 A. I'm saying that it was likely infected is why 23 it blew out. 24 Q. Okay. So you -- are you expressing the


23 (Pages 89 to 92)

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1 opinion that it was more likely than not an infection 2 as of 8/25/10 that caused the rupture in the 3 contralateral autologous graft? 4 A. What I'm saying is that would be my first 5 concern. 6 Q. Okay. Among other concerns; correct? 7 A. Yeah. 8 Q. Okay. 9 A. Yes.

10 Q. Now, I just want to understand. As you sit 11 here today, you have concerns or questions about what 12 caused that rupture. But as I understand your 13 testimony -- and correct me if I'm wrong -- you really 14 can't say to a reasonable degree of medical certainty, 15 you can't be certain that infection was the cause of 16 the rupture specifically on August 25, 2010? 17 A. No. 18 Q. Okay. I think we'll have some follow-up, but 19 go ahead.20 MS. BRAUER: I just have one 21 clarification, Doctor. 22 RECROSS-EXAMINATION BY MS. BRAUER:23 Q. You had testified that you believe it is more 24 likely than not that Mr. Heatherly would have his leg

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1 today if it weren't for the violations of the standard 2 of care by Dr. Moosa that you have discussed? 3 MR. WINSLOW: Asked and 4 answered. 5 COURT REPORTER: I'm sorry. Was 6 there an answer? I didn't hear an answer.7 MS. BRAUER: I hadn't asked the 8 question yet. 9 MR. WINSLOW: I apologize. I

10 interrupted. I didn't wait for the question to be 11 complete, Stephanie. I apologize. 12 MS. BRAUER: I'm sorry. It was 13 much longer than it needed to be. 14 Q. I guess I just want to ask, are there any 15 other ways that the outcome might have been different 16 if it hadn't been for those violations of the standard 17 of care that you have talked about today? 18 MR. WINSLOW: Object to the form. 19 Foundation, speculation, vague. 20 A. I'm sorry. Could you repeat that? 21 Q. Sure. I just want to make sure -- so how 22 would the outcome be different today or would the 23 outcome be different today if Dr. Moosa had not 24 violated the standard of care?

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1 A. Other than that he -- I believe he would have 2 kept his leg. 3 Q. He would have kept his leg. Okay. I just 4 wanted to make sure. Thank you. That was all the 5 questions I have. 6 MR. WINSLOW: Okay. Stephanie, is 7 he going to read or sign? 8 MS. BRAUER: Doctor, would you 9 like to read since there were some issues with the

10 sound? Or what's your preference? 11 THE WITNESS: Would I like to read 12 the deposition? 13 MR. BRAUER: Yes. You can read 14 the deposition or you can waive your signature. 15 THE WITNESS: No, I'd love to read 16 it. 17 MS. BRAUER: Okay. 18 MR. WINSLOW: And then Stephanie, 19 the three exhibits, do you have any objection -- I mean 20 the -- obviously, you know what the Plaintiff's 21 Designation of Expert Witness is and the CV is 22 attached. And that was Exhibit Number 2. The Notice 23 of Deposition is Exhibit Number 1. And the one page 24 page list that Dr. Denatale gave me today, that was

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1 Defendants' Exhibit Number 3. Do you have any 2 objection to me taking these with me and just e-mailing 3 them to you? 4 MS. BRAUER: Not at all, no. 5 MR. WINSLOW: Okay. That's what 6 I'll do then, since, we've got this issue with the 7 court reporter. And I think that pretty well does it. 8 COURT REPORTER: Ms. Brauer, I 9 just need to know if you would like a copy of the

10 transcript. 11 MS. BRAUER: Yes. Please send us 12 an e-tran with an index. 13 COURT REPORTER: Okay. Very 14 good. 15 MR. WINSLOW: And then I would 16 also like an e-tran with an index. And then a hard 17 copy, four to a page. And I will e-mail you a copy of 18 these exhibits as well but Steph and I will work out 19 the exhibits separately. 20 MS. BRAUER: And would you like my 21 e-mail address? 22 COURT REPORTER: Yes. I can 23 actually take that after we go off the record. Okay. 24 Are all we all set, Counsel?


24 (Pages 93 to 94)

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1 MR. WINSLOW: Yes. Thank you. 2 MS. BRAUER: Yes.3 (Whereupon, the deposition was concluded at 4 5:14 p.m.) 56 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

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1 C E R T I F I C A T I O N .23 I, Qiana M. Burgess, LSR No. 327, and a Notary 4 Public within and for the State of Connecticut, do 5 hereby certify: 6 That the foregoing proceedings were taken before 7 me at the time and place therein set forth, at which 8 time the witness was put under oath by me;9 That the testimony of the witness, the questions

10 propounded, and all objections and statements made at 11 the time of the examination were recorded 12 stenographically by me and were thereafter transcribed.13 I further certify that I am not related to the 14 parties hereto or their counsel, and that I am not in 15 any way interested in the events of said cause.16 Dated at New Haven, Connecticut, this 19th day of 17 May, 2015.18 19 Qiana M. Burgess

Notary Public20 License No: 3272122 My Commission Expires:

March 31, 20192324

POHLMANUSA COURT REPORTING (877) 421-0099POHLMANUSA COURT REPORTING (877) 421-0099

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