1 1 THE STATE OF OHIO ) 2 ) SS: 3 COUNTY OF CUYAHOGA ) 4 5 IN THE COURT OF COMMON PLEAS 6 7 * * * * * * * * * * * 8 * 9 CATHLEEN C. LANE, ETC., ET AL., * 10 Plaintiffs * 11 V. * Case No. 12 * 322177 13 GEORGE B. KIRBY, D.D.S., ET AL., * 14 Defendants * 15 * * * * * * * * * * * 16 DEPOSITION OF JOHN R. BOGDASARIAN, M.D. 17 Deposition taken at the Harvard Club of Boston, 18 374 Commonwealth Avenue, Boston, Massachusetts, 19 taken on Tuesday, August 25, 1999, commencing at 20 2:15 p.m. 21 22 Court Reporter: 23 Maryellen Coughlin, RPR 24 2 1 APPEARANCES: 2 For the Plaintiffs: LINTON & HIRSHMAN 3 By: TOBIAS J. HIRSHMAN, Esq. 4 Hoyt Block Suite 300 5 700 West St. Clair Avenue 6 Cleveland, OH 44113-1230 7 (216) 781-2811 8 9 For the Defendant 10 George B. Kirby, 11 D.D.S.: GALLAGHER, SHARP, FULTON & 12 NORMAN 13 By: D. JOHN TRAVIS, ESQ. 14 7th Floor Bulkley Building 15 1501 Euclid Avenue 16 Cleveland, OH 44115 17 (216) 241-5310 18 19 For the Defendant 20 Howard Synenberg: REMINGER & REMINGER 21 By: ROY A. HULME, ESQ. 22 The 113 St. Clair Building 23 Cleveland, OH 44114 24 (216) 687-1311 3 1 CONTINUED APPEARANCES: 2 For the Defendant 3 Kenneth R. Callahan: REMINGER & REMINGER 4 By: RICHARD RYMOND, ESQ. 5 The 113 St. Clair Building 6 Cleveland, OH 44114 7 (216) 687-1311 8 9 For the Defendant 10 Richard Whelan: GALLAGHER, SHARP, FULTON & 11 NORMAN 12 By: MATTHEW J. HATCHADORIAN, 13 ESQ. 14 7th Floor Bulkley Building 15 1501 Euclid Avenue 16 Cleveland, OH 44115 17 (216) 241-5310 18 19 For the Defendant 20 Robert Katz: DAVIS AND YOUNG CO., L.P.A. 21 (Via Phone) KEVIN M. NORCHI, ESQ. 22 1700 Midland Building 23 Cleveland, OH 44115 24 (216) 348-1700 4 1 APPEARANCES CONTINUED: 2 For the Defendant 3 Dr. Witt MAZANEC, RASKIN & RYDER 4 (Via phone) THOMAS MAZANEC, ESQ. 5 34305 Solon Road 6 Cleveland, OH 44139 7 (440) 248-7906 8 9 For Dr. Whelan's 10 Estate: MATTHEW P. MORIARTY CO., 11 (Via Phone) L.P.A. 12 MATTHEW P. MORIARTY, ESQ. 13 23240 Chagrin Boulevard 14 Commerce Park #4 15 Suite 525 16 Beachwood, OH 44122 17 (216) 896-1066 18 19 20 21 22 23 24 5 1 I N D E X 2 3 WITNESS: JOHN R. BOGDASARIAN, M.D. 4 5 6 EXAMINATION: Page 7 By Mr. Travis 6 8 By Mr. Hatchadorian 143 9 By Mr. Rymond 159 10 By Mr. Hulme 190 11 By Mr. Norchi 214 12 By Mr. Mazanec 238 13 14 EXHIBITS FOR IDENTIFICATION: 15 No. Description Page 16 A Curriculum Vitae 7 17 B Medical records of Cathleen Lane 18 reviewed by Dr. Bogdasarian 43 19 C Note 46 20 D Note 46 21 E Report of Dr. Bogdasarian 22 dated 5/18/98 55 23 F Report of Michael Hauser 24 dated 4/15/99 55 6 1 P R O C E E D I N G S 2 3 JOHN R. BOGDASARIAN, M.D., 4 having been duly sworn by the Court Reporter, 5 was deposed and testified as follows: 6 7 EXAMINATION 8 BY MR. TRAVIS: 9 Q. Dr. Bogdasarian, my name is John 10 Travis, and I represent one of the defendants in 11 this case, Dr. Kirby. As you know, we're here 12 today to take your deposition. May I ask how 13 many times you've been deposed in the past? 14 A. I would estimate approximately 50 15 times. I don't keep definite track of the 16 number but . . . 17 Q. You understand it's important to 18 answer verbally? 19 A. Yes. 20 Q. If you don't understand a question, 21 would you let me know, please? 22 A. Yes. 23 Q. If you want to correct or change in 24 any way any answer you give during the course of 7 1 the deposition later on, would you do that, 2 please? 3 A. Yes, I will. 4 MR. TRAVIS: Let's mark this 5 Bogdasarian Exhibit A. 6 (Exhibit A was marked 7 for identification.) 8 Q. Doctor, we've marked as Bogdasarian 9 Exhibit A a document. Can you identify that, 10 please? 11 A. That is my curriculum vitae. 12 Q. Is that a current C.V.? 13 A. It is. This is approximately two 14 years old. But I think in terms of there being 15 any substantive changes, there wouldn't be any. 16 Q. No corrections, additions or 17 deletions? 18 A. No, nothing of significance, no. 19 Q. The second page lists various honors. 20 And are there any of those honors that are 21 particularly significant in your own mind, 22 Doctor? With respect to your expertise which 23 you bring to bear in this case? 24 A. No. 8 1 Q. And your certifications, you have two 2 apparently? 3 A. Board Certifications? 4 Q. Yes. 5 A. Yes. 6 Q. And what are those, please? 7 A. I was certified by the American Board 8 of Surgery in 1976 and by the American Board of 9 Otolaryngology - Head and Neck Surgery in 1978. 10 Q. Have those certifications been 11 renewed? 12 A. The certification for otolaryngology 13 does not require renewal. That of general 14 surgery does. And since I do not practice 15 general surgery, I did not renew it. 16 Q. When did it lapse? 17 A. I believe in 1986. 18 Q. Did you take an oral and written exam 19 for both of these Boards? 20 A. I did, yes. 21 Q. And did you pass the American Board of 22 Surgery on the first attempt? 23 A. Yes. 24 Q. Did you pass the American Board of 9 1 Otolaryngology on the first attempt? 2 A. Yes. 3 Q. You are not a dentist? 4 A. No, I'm not. 5 Q. Have you ever done an extraction of a 6 tooth? 7 A. Yes. 8 Q. On how many occasions? 9 A. In excess of 15, I would say. 15 to 10 20 times. 11 Q. Under what circumstances would you do 12 a dental extraction? 13 A. Usually in conjunction with other 14 surgeries, either as part of an operation such 15 as was done on Mrs. Lane, a composite resection, 16 at the time of the surgery if a tooth were in a 17 line of which mandibular resection is going to 18 be necessary. That may occur both with marginal 19 or with segmental mandibular resections. On 20 occasion I've extracted teeth in children when 21 they've been quite loose, and there's been a 22 question as to whether one would come out during 23 the performance of a procedure. And I've also 24 extracted teeth in association with management 10 1 of trauma to the mandible. If a tooth is in a 2 fracture line, for instance. 3 Q. Do you do fillings of teeth? 4 A. No. 5 Q. Have you ever done a root canal? 6 A. No. 7 Q. Do you claim to be knowledgeable 8 regarding the standard of care for dentists? 9 A. I think that I'm knowledgeable with 10 regarding to the standard of care for dentists 11 in certain aspects of their practice and care. 12 In others, I would not consider myself to be 13 knowledgeable; namely, in those situations that 14 you mentioned in which I do not have experience, 15 placing fillings or performing root canals. 16 Q. What areas do you claim expertise with 17 regard to the standard of care for dentists? 18 A. I think that I could comment on the 19 standard of care for dentists in terms of their 20 management of abnormal lesions of the oral 21 cavity, that is their responsibilities in terms 22 of follow-up, or assuring that follow-up is 23 carried out, referral for diagnostic purposes. 24 Q. Any other areas of dentistry you claim 11 1 expertise? 2 A. Not that I can think of offhand. 3 Q. Have you ever before this case offered 4 an expert opinion regarding the standard of care 5 of a dentist? 6 A. Not that I can recollect. 7 Q. So this is the first case where you've 8 offered expert testimony with respect to 9 dentistry issues, correct? 10 A. I believe so, yes. 11 Q. Have you testified in other cases 12 before this one regarding cancer? 13 A. I have, yes. 14 Q. On how many cases first have you been 15 consulted as an expert with respect to cancer 16 issues? 17 A. I'm not certain that I could -- I 18 certainly couldn't tell you an exact figure, and 19 I'm not certain that I could tell you even a 20 ball-park figure at this point. But I have been 21 asked to review records of patients in whom 22 treatment and diagnostic issues regarding cancer 23 have arisen. 24 Q. Have you ever testified in a case 12 1 involving cancer, either in deposition or at 2 trial? 3 A. I don't recollect. 4 Q. Do you order biopsies? 5 A. I'm not certain I understand what you 6 mean by that. I certainly perform them myself. 7 Do I order them for other people to do -- 8 Q. Well, if you're a treating physician, 9 do you do the biopsies yourself, order them for 10 someone else to do them, or how do you handle 11 that in your practice? 12 A. Well, in the field in which I 13 practice, that is otolaryngology, which deals 14 with cancers that involve skin, or lesions that 15 involve skin of the oral cavity, the nasal 16 cavities, the ears, in those areas I perform my 17 own biopsies. 18 Q. Under what circumstances do you 19 perform a biopsy? 20 A. Under any situation in which an 21 abnormality may be present that would require a 22 pathologic diagnosis, either for purposes of 23 documentation or to establish a diagnosis. In 24 other words, if I were to look at a lesion and 13 1 be uncertain of its cause or of its identity, I 2 would, in that situation, especially if I 3 perceived it to be a threatening lesion to a 4 patient, want to perform a biopsy. 5 Q. Do you have an opinion as to how often 6 biopsies should be ordered in patients with a 7 history of oral cancer, routine biopsies? 8 A. Do I have an opinion regarding that? 9 Q. Yes. 10 A. Yes, I do. 11 Q. And what is your opinion? 12 A. My opinion would be that a biopsy 13 should be ordered or performed under any 14 circumstance such as I mentioned, that is -- and 15 especially in a high-risk patient -- at any time 16 that a lesion whose identity could not be 17 absolutely established by some other means, 18 should be biopsied to rule out the presence of 19 cancer. 20 Q. You don't espouse doing a biopsy every 21 six months or a year even if nothing appears 22 abnormal? 23 A. No. In other words, if there were no 24 visible lesion, I would not necessarily do that. 14 1 I would say that there are circumstances in 2 which that is done. For instance, in certain 3 tumors that might be diagnosed and then treated, 4 perhaps with chemotherapy, radiation therapy, or 5 even surgery, on some occasions we will perform 6 a biopsy routinely in the bed of the tumor to be 7 certain, even though there's nothing visible, at 8 some point after that treatment is completed to 9 establish the fact that the tumor is no longer 10 present. 11 Following that, ordinarily, if a 12 diagnosis under those circumstances or a biopsy 13 under those circumstances was negative, then I 14 think that in my opinion that the standard would 15 be to biopsy only if there became a visible 16 lesion. 17 Q. Doctor, can you give us a layman's 18 explanation of what otolaryngology involves? 19 A. Otolaryngology is the field that is 20 also known as ear, nose and throat or ENT. 21 Essentially, in its broadest sense, it is the 22 field that involves care, both medical and 23 surgical, of diseases that involve the ears, 24 nose and throat area, and some adjoining areas. 15 1 Skin and the respiratory tract and the 2 gastrointestinal -- upper gastrointestinal tract 3 can be included in that. Generally, again, it 4 involves care of both medical and surgical 5 diseases, both sexes and all ages of patients. 6 Q. Do you have any specialization within 7 the broad field of otolaryngology? 8 A. Not per se, no. 9 Q. Can you break down in any reasonable 10 fashion what your practice consists of in any 11 broad categories? 12 A. From a time standpoint, approximately 13 40 percent of my time would be spent in the 14 operating room performing surgery related to my 15 field, and 60 percent would be related to 16 medical treatment. In terms of disease 17 categories, broadly 40 percent of my patients 18 would have ear-related disorders, 40 percent 19 would be related to diseases of the throat, 20 respiratory tract, oral cavity, and 20 percent 21 related to the nose. From an age standpoint, I 22 think approximately 35 percent of my patients 23 would be in the pediatric population, that is up 24 to age 12 or 13, and the remainder would be 16 1 older patients. I could break that down further 2 for you, if you'd like. 3 Q. How about a breakdown in what 4 percentage of your practice involves oral 5 cancer? 6 A. Again, that could be broken down in a 7 couple of ways. It could be broken down in 8 terms of patient numbers. Perhaps 3 to 5 9 percent of my patients, if that, would be 10 patients with oral cancers. From a time 11 standpoint, those patients are certainly more 12 time-consuming than patients who don't have 13 cancer. Somewhere in the range of 5 to 10 14 percent of my time might be spent dealing with 15 patients with oral cancers. 16 Q. How about other cancers aside from 17 oral cancer? 18 A. Certainly we see a fair number of 19 patients with cancers of the voice box or 20 larynx. Probably more patients with regard to 21 that than with regard to oral cavity cancers. 22 And skin cancers would be by far the largest 23 group of cancer patients whom I care for. 24 Q. What percentage of your practice would 17 1 you estimate is devoted to skin cancer patients? 2 A. Well, perhaps one in ten to one in 3 twenty patients I see they have skin cancer. I 4 do quite a bit of that type of treatment. And 5 again, from a time standpoint, since a lot of 6 those patients require surgery, perhaps 7 somewhere in the range of 10 percent of my time 8 may be related to, or at least surgical time, 9 would be related to treatment of patients with 10 skin cancer. 11 Q. You said cancer of the larynx is a 12 greater population percentage than oral cancer 13 which you said was 3 to 5 percent, so what's 14 your estimate of larynx cancer patients? 15 A. Perhaps -- those numbers may be a bit 16 high. Again, I don't keep track of this in any 17 way, but maybe 1 to 2 percent of my cancer 18 patients are oral cavity -- or of my patients 19 are oral cavity cancer patients, and perhaps 3 20 to 5 percent would relate to vocal cord or 21 laryngeal or pharynx type of cancers. 22 Q. So the gross percentage of cancer 23 patients you treat is approximately the order of 24 magnitude of 4 to 7 percent? 18 1 A. Leaving out -- does that include skin 2 cancer patients? That would appear appropriate, 3 yes. 4 Q. Including or not including skin 5 cancer? 6 A. Including. 7 Q. And how long has that been true for, 8 Doctor? 9 A. I think throughout my career, since 10 1978. 11 Q. Do you claim to be an expert on the 12 growth rate of oral cancer? 13 A. I have some experience dealing with 14 patients with oral cancers. I've done some 15 reading with respect to growth rates of oral 16 cancers. I think that would be the best way I 17 could answer your question. 18 Q. What experience do you have regarding 19 the growth rates of oral cancer? 20 A. I've certainly dealt with numerous 21 patients who've had oral cavity cancers in my 22 own experience, in my own practice, and I've 23 been able to observe growth rates of oral cavity 24 cancers both treated and un -- both treated and 19 1 not controlled and untreated, and that would be 2 the majority of my personal experience. And as 3 I've mentioned, I've had opportunity to do some 4 reading with respect -- through the years with 5 respect to growth rates. 6 Q. Are there any particular texts or 7 articles that you could recommend as being 8 reliable authority in the area of growth rate of 9 cancer? 10 A. I can't think of a distinct title for 11 you offhand. 12 Q. If you wanted to locate articles in 13 this area, what would you do? 14 A. I would -- how would I go about doing 15 that? 16 Q. Right. 17 A. I would go to our library and consult 18 with our librarian and ask her to do a med 19 search. 20 Q. You have not done that in this case? 21 A. No. 22 Q. Have you done any research of the 23 literature or any other type of research in 24 connection with this case? 20 1 A. No. 2 Q. Is it true that the growth rate of 3 oral cancers are highly variable? 4 A. They can vary, yes. 5 Q. Is there any way to predict with any 6 reasonable degree of medical probability how 7 fast or slow a given cancer will grow? 8 A. In a particular individual? 9 Q. Exactly. 10 A. To the extent that patients develop -- 11 the growth rates of tumors have to do with, 12 first of all, a differentiation of the tumor, 13 that is the type of cell that's formed. Better 14 differentiated or more differentiated cancers 15 may tend to be somewhat slower growing than 16 poorly differentiated cancers. And the other 17 factor would have to do with patients' 18 immunologic status. Patients who are perhaps 19 debilitated or who have demonstrated a 20 propensity for recurrent tumors would 21 predictably have tumors of higher growth rate, 22 that is whose immune systems would be less 23 competent in dealing with neoplasms. 24 Q. In the case of the Plaintiff here, 21 1 Mrs. Lane, how would you characterize the type 2 of tumor in terms of differentiation? 3 A. My recollection is that her tumor was 4 not a well-differentiated tumor. It was a more 5 poorly differentiated tumor. 6 Q. And how would you rate her immunologic 7 status? 8 A. I would rate her immunologic status as 9 one of poor immunologic competence. 10 Q. Why is that? 11 A. That is because she essentially 12 develop her initial cancer in, I think, 1981 or 13 1982 without the ordinary stimulating factors of 14 increased alcohol intake and cigarette smoking. 15 In those individuals, ordinarily tumors likely 16 come about as a result of immune incompetence. 17 Additionally, she had developed 18 numerous repetitive lesions that developed in 19 her mouth throughout the years, again indicating 20 that she had a tendency to develop lesions in 21 her oral cavity. 22 Q. Doctor, where do you have staff 23 privileges, at which hospitals? 24 A. I have active staff privileges at 22 1 Burbank and Leominster Hospitals, which have 2 combined in the last two years or so to be 3 called Health Alliance, at the Deaconess/Nashoba 4 Hospital in Ayer, Massachusetts. And I have 5 courtesy staff privileges at the Heywood, which 6 is H-E-Y-W-O-O-D, Hospital in Gardner, 7 Massachusetts, at the Athol Memorial Hospital in 8 Athol, Massachusetts, and at the Clinton 9 Hospital in Clinton, Massachusetts. 10 Q. Have you ever had your privileges 11 suspended, revoked or limited? 12 A. No. 13 Q. Never had any restrictions on your 14 license? 15 A. Correct. 16 Q. What states are you licensed to 17 practice medicine? 18 A. Massachusetts. 19 Q. Doctor, what publications do you 20 subscribe to? 21 A. I subscribe to the Archives of 22 Otolaryngology, to Head and Neck Surgery, to 23 Laryngoscope and to the Otolaryngologic Clinics 24 of North America. I also receive yearly the 23 1 Advances in Otolaryngology and Current Therapy 2 in Otolaryngology. I receive the New England 3 Journal of Medicine regularly, the Journal of 4 the American Medical Association, and I think a 5 journal called ENT. 6 Q. Are those reliable authorities? 7 A. Well, certainly there are, I think, 8 excellent articles that are published in all of 9 those journals, but I wouldn't say that there 10 wouldn't be anything in any of them that I 11 wouldn't disagree with from time to time. 12 Q. Are there any reference texts that 13 would be useful in addressing the issues in this 14 case? 15 A. I think there would be, yes. 16 Q. And which texts are those, Doctor? 17 A. I think that Otolaryngology edited by 18 Charles Cummings. I think any of the general 19 otolaryngologic textbooks, Ballenger's 20 otolaryngology. Those would be the two main 21 ones that I would think of. 22 Q. And are those texts reliable in your 23 judgment? 24 A. I would give the same answer I think 24 1 that I did with regard to the journals, that I 2 think that in general they are, but I wouldn't 3 want to say that there wouldn't be at times when 4 I might not disagree with certain statements 5 that were made in each of them. 6 Q. Doctor, your C.V. lists one 7 publication, is that the only publication you've 8 had? 9 A. Yes. 10 Q. And was that a peer-reviewed article? 11 A. Yes. 12 Q. Does that have any relevance to the 13 issues in this case? 14 A. No. 15 Q. Have you submitted any articles for 16 review that were not accepted? 17 A. No. 18 Q. Over what period of time have you been 19 serving as an expert in legal cases, Doctor? 20 A. I think that I was first asked to 21 review records in a legal case in 1981. 22 Q. Since that time, can you give us your 23 best estimate as to how many cases you've been 24 consulted in as an expert, legal cases? 25 1 A. I couldn't give you an exact number, 2 but I think around 200 cases would be an 3 estimate. 4 Q. On average, how many new cases a year 5 do you get of this nature, legal cases? 6 A. I think that's something that's been 7 changing over time. But in recent years, 8 perhaps 15. 9 Q. Is it going up or down? 10 A. Up. 11 Q. Of those perhaps in excess of 200 12 cases you've offered legal opinions, or offered 13 medical opinions in legal cases over the years, 14 how many of those cases have involved opinions 15 regarding the standard of care? 16 A. I think almost all of them. 17 Q. Have you ever had a case similar to 18 this one involving issues of standard of care in 19 an oral cancer case that allegedly was not 20 timely diagnosed? 21 A. I really can't recollect if I have or 22 not. I'm sorry. 23 Q. How does your expert opinions for 24 attorneys break down plaintiff versus defendant? 26 1 A. Approximately 90 percent of the 2 records that I've been asked to review have been 3 on behalf of plaintiffs. 4 Q. Is that going up, down or staying the 5 same? 6 A. I think I have been asked recently to 7 review cases slightly more on behalf of 8 defendants, that is at a slightly higher 9 percentage of the time than I had been in the 10 past. 11 Q. But on average, it has worked out to 12 90 percent for the plaintiff? 13 A. I think so, yes. 14 Q. Do you have any explanation for why 15 nine out of ten times on average you're a 16 plaintiff's expert as opposed to defense expert? 17 A. Well, I certainly haven't, I think, 18 demonstrated any type of bias or solicited any 19 records from anyone. As a matter of fact, I 20 think most of these have come to me unsolicited, 21 and that just happens to be the percentage in 22 which I've been asked to review records. So I 23 don't really have an explanation. 24 Q. How many depositions on average do you 27 1 give a year in cases where you're asked to 2 render opinions in legal matters? 3 A. Again, that changes somewhat. But I 4 think over the last couple of years, perhaps 5 eight to ten depositions in a year. 6 Q. How often do you testify at trial, 7 Doctor? 8 A. About the same amount of time. 9 Q. Eight to ten times? 10 A. Yes. In a year. 11 Q. Have you had any other cases for 12 Mr. Hirshman or his law firm Linton & Hirshman? 13 A. No. 14 Q. Have you had any cases for the 15 Jacobson Maynard firm which was formerly in 16 Cleveland? 17 A. Yes. 18 Q. How many cases have you had for that 19 firm over the years? 20 A. I think there were four or five cases 21 that I was asked to review for that firm. 22 Q. Do you remember what they were about? 23 A. One related to a death following a 24 thyroidectomy of someone who had an episode of 28 1 bleeding following the procedure. I can't 2 remember the details of the others. 3 Q. Did you ever testify at a trial of any 4 of those cases? 5 A. I did in that particular one. 6 Q. Was that in Cleveland? 7 A. No. That was in Toledo, Ohio. 8 Q. Do you know what the outcome was? 9 A. Actually, I was asked to testify on 10 behalf of the hospital, the care that was 11 rendered in the hospital in that situation. I 12 believe that the Maynard firm was defending the 13 hospital, and the hospital I think was absolved 14 from damage. But I believe that the doctor was 15 found to be negligent in that situation. 16 Q. What hospital was that, Doctor? 17 A. I don't remember. 18 Q. Do you remember the name of the 19 doctor? 20 A. I don't. 21 Q. The name of the patient? 22 A. No. 23 Q. Was that in state court or federal 24 court? 29 1 A. I believe it was state court. 2 Q. Do you remember anything else about 3 the case? 4 A. I think that this occurred some ten 5 years ago. I think that's all that I can 6 remember. 7 Q. During the time you dealt with 8 Jacobson Maynard, did you ever have any contact 9 with Mr. Hirshman? 10 A. My understanding is that he may have 11 defended a case in which I was a plaintiff's 12 expert. 13 Q. And what case was that? 14 A. I don't remember at all. 15 Q. You say your understanding, what's the 16 basis for that understanding? 17 A. I think he may have mentioned that to 18 me. 19 Q. Do you remember that case? 20 A. No, not at all. No comment on 21 Mr. Hirshman about that, by the way. 22 Q. Is that how it is that you believe 23 Mr. Hirshman came to call upon you in this case? 24 A. I don't know. It may have been. 30 1 Q. Is that the only prior case that 2 you're aware of having any contact with 3 Mr. Hirshman? 4 A. Yes. 5 Q. Doctor, what do you charge for a 6 review of a legal case? 7 A. I charge $275 per hour. 8 Q. How long has that been true? 9 A. I think over the past five or six 10 years. 11 Q. What do you charge for a deposition? 12 A. I charge ordinarily the same -- well, 13 I charge $300 per hour for depositions. 14 Q. That's $25 more? 15 A. Yes. 16 Q. And how about for trial testimony? 17 A. I ordinarily charge $3,000 for a day's 18 trial testimony. 19 Q. What have your total charges been in 20 this case? 21 A. I don't know. 22 Q. Can you give me a reasonable estimate, 23 5,000, 10,000, 20,000? 24 A. I think it would be more somewhere 31 1 between 5 and $10,000. 2 Q. Do you have any records in that 3 regard? 4 A. I think we do, yes. I didn't -- 5 Q. You don't have them today? 6 A. I don't have them today. I'm sorry. 7 Q. Could you make them available to 8 Mr. Hirshman, please? 9 A. Yes. 10 Q. He can provide it to us, if he would. 11 What percentage of your total income 12 is derived from serving as an expert, Doctor? 13 A. Again, it's an estimate. I would 14 estimate approximately 10 percent. 15 Q. Have you ever advertised? 16 A. No. 17 Q. Why does a doctor take a history from 18 a patient? 19 A. In order to learn the reason for the 20 patient's coming to the physician, to learn what 21 the patient's problem might be and for what 22 problem the patient is seeking help. Also, in 23 order to determine something about the symptoms 24 that may be bothering the patient, and 32 1 eventually, because of those symptoms and 2 because of the time course of the problem too, 3 as an important maneuver in terms of trying to 4 arrive at a diagnosis of a problem. 5 Q. Is it important to take a history from 6 a patient? 7 A. Yes. 8 Q. It may affect the diagnosis and 9 treatment? 10 A. Yes. 11 Q. Do you agree that the Plaintiff in 12 this case was an accurate historian? 13 A. I believe that she was, yes. 14 Q. Do you agree that she was 15 knowledgeable about her medical condition? 16 A. Within reason. She was not a 17 physician, certainly. But I think as a 18 layperson she had, as lay people go, a 19 reasonable amount of knowledge and concern for 20 her well-being. 21 Q. The Plaintiff is an intelligent woman? 22 A. My understanding is that she is, yes. 23 Q. Is it true that a doctor relies upon 24 the history in treating the patient? 33 1 A. The physician certainly has to rely on 2 the history, but he also has to understand as 3 part of that what portions of the history to 4 emphasize. He has to have some skepticism in 5 taking a history, and he has to have an ability 6 to ask the appropriate questions in appropriate 7 ways to draw the history out. 8 Q. Why do you say that the doctor should 9 have some skepticism? 10 A. I say that because patients frequently 11 come to physicians with their own diagnoses. 12 Sometimes they come -- which may not be correct. 13 Sometimes they come with information that may 14 not be correct, and therefore the physician has 15 to be on guard against being misled by 16 inappropriate information. 17 Q. Is there a typical presentation of 18 oral cancer? 19 A. That's a difficult question because 20 the oral cavity is a large place with many 21 different anatomic structures. There are 22 different types of cancers that can occur. And 23 I suppose, then, the fairest answer would be 24 that there are a myriad of presentations that 34 1 oral cavity cancers can have, and no distinctly 2 typical one. 3 Q. Do you see ulcerative lesions with 4 rolled margins in oral cancer cases? 5 A. On occasion. 6 Q. Is that a usual presentation? 7 A. I think it really depends on the 8 location of the tumor, the degree of advancement 9 of the tumor, the histologic type. It is one 10 morphological presentation, but there are 11 certainly others. 12 Q. Can you estimate, Doctor, how many 13 cases of oral cancer you've treated in your 14 career in terms of numbers? 15 A. Somewhere in the range of 100 to 200. 16 Perhaps more, but in that range. 17 Q. To your knowledge, have you ever 18 missed a diagnosis? 19 A. Of oral cavity cancer? 20 Q. Right. 21 A. Not to my knowledge. 22 Q. Please excuse me for asking, Doctor, 23 but have you ever been sued? 24 A. I have not. 35 1 Q. Have you ever had any malpractice 2 claim made against you not the subject of suit? 3 A. No. 4 Q. Has there ever been a payment made on 5 your behalf for an alleged malpractice matter? 6 A. No. You don't have to excuse 7 yourself. 8 Q. Does a history of oral squamous cell 9 carcinoma increase the risk of a second 10 carcinoma in that same patient? 11 A. Yes. 12 Q. And why is that? 13 A. Well, ordinarily patients -- for a 14 couple of reasons. Ordinarily patients who 15 develop oral cavity cancers have a history of 16 heavy smoking and/or alcohol intake. And once 17 the lining of the so-called aerodigestive tract 18 has been damaged in one location, typically that 19 damage extends through all locations. And the 20 stimuli that caused development of cancer in one 21 location are present in all areas. And 22 therefore, there's a greater likelihood that 23 those situations will arise. Typically 24 somewhere in the range of 7 percent of patients 36 1 with one oral cavity cancer will have 2 synchronous or simultaneous oral cavity cancer, 3 and up to 15 to 20 percent of those patients 4 will have an asynchronous or cancer will develop 5 later on. In a patient such as Mrs. Lane who 6 does not have that history, again the problem 7 would go to her immunologic system and its 8 ability to guard against development, or to kill 9 abnormally developing cells. And the 10 development of one cancer in that situation 11 would imply that the same situation could arise 12 again. 13 Q. Is it unusual to have a squamous cell 14 oral carcinoma in a nonsmoker, nondrinker? 15 A. It is certainly much more unusual than 16 to have it in a smoker and drinker, yes. 17 Q. Of the oral squamous cell carcinoma 18 patients, what percentage are smokers? 19 A. 95 percent. 20 Q. And what percentage are drinkers of 21 alcohol? 22 A. 90 percent. 23 Q. What is dysplasia? 24 A. Dysplasia really is a very broad term 37 1 that refers to abnormal growth, or an altered 2 morphology or appearance of a cell, or a 3 structure in general. 4 Q. According to the biopsy in October of 5 1995, the Plaintiff had dysplasia, correct? 6 A. Yes. 7 Q. How should that type of dysplasia be 8 treated? 9 A. Well, at the very least -- and this 10 was, by the way, said to be severe dysplasia. 11 At the very least, a patient like that should 12 have careful follow-up. By that I mean that at 13 short intervals the patient should have repeated 14 physical examinations to observe the course of 15 the abnormal tissue. Ordinarily that would be 16 something on the range of monthly visits to 17 observe that. If there were any hint of change, 18 repeat biopsies, to verify the fact that this 19 was continuing to be dysplastic rather than 20 cancer or malignant tissue, should be done, and 21 others might argue in certain situations that 22 the dysplastic tissue itself should be removed 23 as a preventive maneuver. 24 Q. You do not subscribe to that school of 38 1 thought? 2 A. I think it depends a little bit on the 3 patient's situation, and that can vary from 4 person to person. 5 Q. How about in the case of the Plaintiff 6 in October of 1995, what should have been done 7 in your judgment? 8 A. Just as I said, I think that at the 9 very least she should have been observed 10 carefully. And I think that if with little 11 morbidity the dysplastic tissue could have been 12 resected, I think that that should have been 13 done. 14 Q. So in this case, you would conclude 15 that it should have been removed? 16 A. I say that if it could be done without 17 causing excessive scarring or resection of the 18 functioning tissue, I believe that in this 19 situation it should have been removed, yes. 20 Q. What do you believe that should have 21 been done? 22 Well, first of all, could it have been 23 done with little morbidity or other 24 complications? 39 1 A. I believe that it could have, yes. 2 Q. Do you have an opinion as to when it 3 should have been done? 4 A. I think it should have been done as 5 soon as it was visualized. The smaller the 6 lesion was; the less involved the resection 7 would have been. And I think as early as 8 February of 1995, when this abnormality, 9 specifically the one around her mandible on the 10 left side, was visualized, it could have been 11 done at that point. 12 Q. Are you saying that's when it should 13 have been done, in February of '95? 14 A. I believe that it should have been 15 done at that point. 16 Q. Was there any biopsy done in February 17 of '95? 18 A. No. 19 Q. Do you know if there was any dysplasia 20 present in February of '95? 21 A. No. 22 Q. So if there was no dysplasia present, 23 there's no need to do a resection, is there? 24 A. No. I think that my opinion is that 40 1 if this lesion had been biopsied in February of 2 1995, which I think also it should have been 3 done, that it would have been found to be a 4 dysplastic lesion, and at that time that the 5 lesion should have been removed. 6 Q. Do you hold an opinion to a reasonable 7 medical probability that there was dysplasia in 8 February of '95 in this patient? 9 A. Yes. 10 Q. And what's the basis for that opinion? 11 A. The basis for that opinion would be 12 the description of the lesion in February of 13 1995 which seemed to be similar to that in 14 October of 1995 at the same location and the 15 fact that subsequently the lesion was found to 16 be dysplastic. 17 Q. Doctor, in this particular case, when 18 were you approached? 19 A. I believe it was in 1996, although I'm 20 not 100 percent sure about that. 21 Q. What's your best recollection as to 22 when in 1996? 23 A. I don't remember specifically. 24 Q. What were you told at that time? 41 1 A. I don't know as if I was told 2 anything. I think I was asked to -- if I would 3 be willing to review records regarding the 4 treatment of Cathleen Lane regarding my opinions 5 about standard of care by certain physicians who 6 treated her. 7 Q. Did you have a telephone call with 8 someone? 9 A. That's my recollection, yes. 10 Q. Who was that with? 11 A. Mr. Hirshman. 12 Q. Do you have any way of dating that 13 call more accurately than sometime in 1996? 14 A. No, I don't. 15 Q. Did you receive some correspondence or 16 some materials from Mr. Hirshman thereafter? 17 A. When I agreed to review the records, 18 he forwarded them to me. I have not had much in 19 the way of correspondence other than a couple of 20 cover letters which came subsequently with 21 depositions. But I think the initial records 22 came -- we essentially discussed it over the 23 phone, is my recollection, as to whether I would 24 be willing to review the records and render an 42 1 opinion. 2 Q. Was there a cover letter with those 3 initial records? 4 A. Not that I recollect. 5 Q. What records did you initially get? 6 A. Essentially -- do you want me to 7 list -- essentially the medical records that 8 pertain to the care that was given to Mrs. Lane 9 from -- extending from Dr. Whelan, Dr. Kirby, 10 Dr. Callahan, Dr. Rozman, Dr. Witt, 11 Dr. Synenberg, Dr. Stepnick, Dr. Goldberg, 12 Dr. Silverman, and then I think some earlier 13 records from doctor, Shina? 14 MR. HIRSHMAN: Shina. 15 A. Shina. And I think there may have 16 been some records from Dr. DesPrez. 17 Q. Doctor, you're looking at what looks 18 like a table of contents from a binder before 19 you, correct? 20 A. Yes. 21 Q. Is that the binder of materials that 22 you initially received in this case? 23 A. Yes, it is. 24 MR. TRAVIS: Can we mark that 43 1 Defendants' Exhibit B, please. 2 (Exhibit B was marked 3 for identification.) 4 Q. Doctor, we've now marked as Exhibit B 5 the binder of materials which you initially 6 received in this case, correct? 7 A. Yes. 8 Q. Did you receive anything else 9 initially aside from that binder? 10 A. I don't believe so. I did receive 11 some radiographic films at some point. I do not 12 recollect if they came with that binder or if 13 they came separately. 14 Q. Do you recall when you received the 15 radiographic films? 16 A. I don't specifically. I'm sorry. 17 Q. What else did you receive from 18 Mr. Hirshman at any time? And I'd like to do it 19 in chronological order if you're able to do 20 that? 21 A. All right. Well, I received 22 depositions from Mr. Hirshman. I did not 23 receive all of the depositions together. I 24 believe that I received first the depositions of 44 1 Doctors Rozman, Kirby, Whelan, Synenberg, 2 Bell, Katz, Witt and Callahan. 3 Q. You're looking at a letter? 4 A. Yes. 5 Q. And what is the date on that letter? 6 A. October 2nd, 1997. 7 MR. HIRSHMAN: What was the one right 8 before Katz? 9 THE WITNESS: Bell. 10 Q. Did you receive anything else with 11 that letter, aside from those deposition 12 transcripts? 13 A. No, I don't think so. 14 Q. What else did you receive, Doctor? 15 A. I then received the deposition 16 transcripts of Mr. and Mrs. Lane. 17 Q. When was that? 18 A. That came with the letter of 19 February 13th, 1998. 20 Q. Please continue with anything else you 21 received in this case? 22 A. I then received the videotaped 23 deposition and a transcript, I believe -- I'm 24 sorry. I think it was just the videotape. The 45 1 transcript of her videotaped deposition sent on 2 January 19th, 1999. I did receive a videotape, 3 but I can't recollect if that was -- I believe 4 that was the deposition itself. 5 MR. HIRSHMAN: In other words, he's 6 received the actual videotape. 7 Q. The videocassette which you've shown 8 me is dated January 26th, 1998, correct? 9 A. Yes. 10 Q. Please continue with what else you've 11 reviewed, Doctor? 12 A. And lastly, I received expert reports. 13 Do you want me to list all the names of those? 14 Q. Please. 15 A. Of Dr. Dierks, D-I-E-R-K-S, 16 Dr. Levitan, Dr. Chung, Dr. Nahigian, 17 Dr. Hauser, Dr. Tucker, Dr. Rossman, Dr. Katz, 18 Dr. Gluckman, Dr. Allen, and Mr. Joseph 19 Spoonster. And those came on July, or came with 20 a letter dated July 9th, 1999, from 21 Mr. Hirshman. 22 Q. Anything else you've received in this 23 case, Doctor? 24 A. I think that that's all that I've 46 1 received. 2 Q. Did you review some x-rays just today 3 before your deposition? 4 A. I did, yes. 5 Q. Do you have any notes in your file? 6 A. Yes. 7 Q. Just those two little pieces of paper? 8 A. Yes. 9 Q. When were they created? 10 A. Well, when you say notes, I have two 11 reports that I've authored. 12 Q. Correct. But I'm talking about 13 handwritten. 14 A. These were done within the last day or 15 two. 16 MR. TRAVIS: Can we mark each of them 17 please, as C and D. 18 (Exhibits C & D were 19 marked for identification.) 20 Q. Doctor, can you identify 21 Exhibit C, please? 22 A. Exhibit C is my handwritten notes 23 regarding -- certain chronological notations 24 regarding care. In other words, I just -- I 47 1 simply wrote down some dates as to who had seen 2 Mrs. Lane at what times. 3 Q. And since it may be difficult to read 4 later on, can you read into the record what that 5 note says? 6 A. "10/10/95 Witt biopsy. 12/95 bubble, 7 Kirby, hyphen, abscess." And then below that it 8 says "Synenberg," and below that "Kirby." 9 "2/96 Callahan, hyphen, extraction. 4/1/96 10 curettage," and then below that "Silverman." 11 "4/18/96 Goldberg biopsy, soft tissue and 12 socket," and that's all that's on Exhibit C. 13 Q. Where were you when you created that? 14 A. At home. 15 Q. And that was in the last couple days? 16 A. Yes. 17 Q. How about Exhibit D, could you read 18 that, please? 19 A. "5/2/96 composite, 5 cm neoplasm." 20 Q. Is that 5 centimeter? 21 A. Yes. 22 "6/3/96 resection, hyphen, Roman 23 numeral seven nerve. 10/96 left tongue 24 resection. 9/97 scapula flap, hyphen, urken." 48 1 And then below that "XRT," or radiation therapy, 2 "hypen, OSU." 3 Q. Ohio State University? 4 A. Yes. 5 Q. Was Exhibit D also created at the same 6 time as Exhibit C? 7 A. Yes. 8 Q. Are those the entirety of your 9 handwritten notes in this case? 10 A. It is, yes. 11 Q. Were there any other notes that were 12 discarded at any time? 13 A. No. 14 Q. Did you just read the deposition 15 transcripts, for example, and commit them to 16 memory? 17 A. I wish I had. No. I mean, I've read 18 them, but I have not committed them completely 19 to memory. There are some underlinings in the 20 depositions. 21 Q. Would that be true of each deposition? 22 A. Yes. 23 Q. Can you show me an example of one, 24 Doctor, just so we can see? 49 1 A. Yes. This is the deposition of 2 Cathleen Lane taken on January 8th. 3 Q. And you have underlining here on page 4 31. It looks like a purple marking pencil, 5 correct? 6 A. Yes. 7 Q. And why did you in some instances 8 underline certain testimony? 9 A. I do that when I -- if I find a 10 statement in the deposition that I think is 11 pertinent, I underline it such that when I have 12 to go back and review the deposition that I can 13 read the underlinings as to essentially the high 14 points of the deposition in my opinion, as 15 opposed to rereading the whole deposition. 16 Q. Have you received or reviewed anything 17 else in this case, aside from what you've 18 already identified? 19 A. No, I think that that's all. 20 Q. For example, did you ever see the 21 actual pathology slides from October of 1995? 22 A. No. 23 Q. So you just accept the interpretation? 24 A. I do, yes. 50 1 Q. Okay. Regarding the expert reports, 2 I'd like to ask you as to each expert whether 3 you know of them personally or by reputation. 4 Dr. Dierks, do you know Dr. Dierks? 5 A. I have heard his name before, but I do 6 not know him. 7 Q. When you say you've heard his name 8 before, can you explain the circumstances? 9 A. He may have acted as an expert in a 10 case that I had reviewed before. Again, that's 11 a vague recollection. I'm not certain of that. 12 But I believe that may be the circumstance under 13 which I heard his name. 14 Q. You as the plaintiff's expert; he has 15 the defense expert? 16 A. I don't recollect. 17 Q. Do you know Dr. Dierks' reputation? 18 A. No. 19 Q. Do you know Dr. Levitan? 20 A. No. 21 Q. Do you know his reputation? 22 A. No. 23 Q. Do you know Dr. Chung? 24 A. No. 51 1 Q. His reputation? 2 A. No. 3 Q. Do you know Dr. Nahigian? 4 A. No. 5 Q. Do you know his reputation? 6 A. No. 7 Q. Do you know Dr. Hauser? 8 A. No. 9 Q. Do you know his reputation? 10 A. No. 11 Q. Do you know Dr. Tucker? 12 A. I have met Dr. Tucker on a few 13 occasions, yes. 14 Q. And what do you know of Dr. Tucker? 15 A. That's -- can you be more specific 16 about that? 17 Q. Well, under what circumstances have 18 you met Dr. Tucker? 19 A. I met him -- I've met him at courses 20 at which he has taught. 21 Q. You were a student at these courses? 22 A. Yes. 23 Q. Is he a competent expert in your 24 judgment? 52 1 A. I think -- I don't know Dr. Tucker 2 well enough to be able to comment as to how -- 3 his level of competence with everything on which 4 he may express an opinion. Certainly with 5 regard to certain issues he seems to be 6 competent. 7 Q. Which issues are those? 8 A. Well, he has done some research with 9 regard to vocal cord reinnervation in situations 10 of paralyzed vocal cords. His work there I 11 think has been somewhat controversial, but I 12 think he's been respected for the work that he 13 has done there. 14 My recollection is that I met him at 15 courses in sinus surgery. And in that 16 situation, I certainly didn't have any problem 17 with any of the teachings that I heard him give. 18 Q. Did you attend any other courses 19 taught by Dr. Tucker aside from the sinus 20 surgery course? 21 A. Not to my recollection. 22 Q. Do you know Dr. Rossman? 23 A. No. 24 Q. Do you know his reputation? 53 1 A. No. 2 Q. Do you know Dr. Katz? 3 A. No. 4 Q. Do you know his reputation? 5 A. No. 6 Q. Do you know Dr. Gluckman? 7 A. By name only. 8 Q. Do you know his reputation? 9 A. No, I don't. 10 Q. Dr. Allen is another plaintiffs' 11 expert in this case, correct? 12 A. Yes. 13 Q. Do you know Dr. Allen? 14 A. No. 15 Q. Do you know his reputation? 16 A. No, I don't. 17 Q. When did you first receive his report, 18 the same time as all the rest? 19 A. Yes. 20 Q. And do you know Joseph Spoonster? 21 A. No. 22 Q. Do you know his reputation? 23 A. No, I don't. 24 Q. The depositions that were reviewed by 54 1 you included the deposition of Dr. Kirby, 2 correct? 3 A. Yes, it did. 4 Q. Did you perceive any untruthful 5 testimony from Dr. Kirby in this case? 6 A. Not that I recollect. Let me 7 understand that question. Are you asking me did 8 I determine that he willfully lied about 9 something? 10 Q. Yes. As opposed to having a 11 difference of opinion as to what should have 12 been done, for example. 13 A. No, I don't recollect having that 14 sentiment. 15 Q. Same question with respect to 16 Dr. Whelan? 17 A. Same answer. 18 Q. Dr. Callahan? 19 A. Again, the same. 20 Q. Dr. Synenberg? 21 A. I did not have any feeling that he was 22 being untruthful. 23 Q. Dr. Katz? 24 A. The same. 55 1 Q. Dr. Witt? 2 A. The same. 3 Q. Dr. Rozman? 4 A. The same. 5 Q. Dr. Bell? 6 A. The same. 7 Q. Doctor, is your entire file before 8 you? 9 A. Yes, it is. 10 Q. You did at some point review the 11 Callahan exhibits, did you not? Three films, 12 two Panorexes and some bite wings or a bite 13 wing? 14 A. Yes, I did. 15 Q. And aside from that not being here, is 16 there anything else that has been in your file 17 at any time that is not before you? 18 A. No. 19 Q. Nothing has been removed? 20 A. No. 21 MR. TRAVIS: Let's mark as the next 22 exhibit a copy of your report. 23 (Exhibit E & F were marked 24 for identification.) 56 1 Q. Doctor, we've now marked as 2 Bogdasarian Exhibit E your report in this 3 matter, correct? 4 A. Yes. 5 Q. Does that set forth all the opinions 6 you hold in this matter? 7 A. I believe that it does, yes. 8 Q. Were there any drafts to this report? 9 A. No. 10 Q. Who actually typed this? 11 A. A transcriptionist named Kim Cormier. 12 Q. Did you give her a cassette tape or a 13 handwritten draft report or what? 14 A. A cassette tape. In other words, I do 15 this by dictation, and she types it from the 16 tape. 17 Q. When you gave her the cassette tape 18 and she typed up the report, were there any 19 changes between what she presented to you and 20 this final report? 21 A. Not that I recollect. 22 Q. So the final report we have marked as 23 Exhibit E is exactly how it came out of your 24 mouth the first time? 57 1 A. It should have been. I'll back up a 2 little and say on occasion -- although I try to 3 spell names, so I think this is exactly what 4 came out of my mouth -- there may be some 5 misspellings, and she'll have to retype it with 6 those changes. And I don't keep the original 7 one, if that's the case. But I don't recollect 8 that that happened in this particular instance. 9 And if it did, there wouldn't have been any 10 substantive changes, I'm sure. 11 Q. Did you talk to Mr. Hirshman about 12 your opinions before creating this report? 13 A. I know that we had some conversations 14 about this case from time to time, but I 15 wouldn't be able to tell you if I did 16 specifically speak to him about it. 17 Q. Well, did he know if you were going to 18 have favorable or unfavorable opinions from the 19 plaintiffs' perspective before you created this 20 report? 21 MR. HIRSHMAN: If you know what I 22 knew. 23 A. I think we may have discussed briefly, 24 and again it's a very vague recollection, but we 58 1 may have discussed briefly what my thoughts were 2 after having reviewed the records, and I think 3 at that point he may have asked me to author a 4 report. 5 Q. What is your fax number, Doctor? 6 A. (978) 345-8014. 7 Q. And was that your fax in May of 1998? 8 A. Yes, I think so. 9 Q. Was this report faxed to Mr. Hirshman 10 at about the time that it was created? 11 A. No, I don't think so. I think that I 12 wrote it and mailed it to him. 13 Q. What did you review in preparation for 14 today's deposition, Doctor? 15 A. I reviewed at one time or another the 16 records that I think that we have listed as my 17 having received. In other words, pretty much 18 the complete file. 19 Q. How long did it take for you to 20 prepare for this deposition? 21 A. Well, I suppose in a sense I've been 22 preparing for this deposition ever since I 23 received the first records. But if you're 24 asking me specifically this time, I think three 59 1 or four hours. Well, I take that back. Five 2 hours or so. 3 Q. Over what period of time? 4 A. Over three or four days. 5 Q. Have you reviewed the transcript of 6 Dr. Allen's deposition? 7 A. No, I have not. 8 Q. Have you been given any summary by 9 Mr. Hirshman or anyone else as to the substance 10 of Dr. Allen's opinions in his deposition? 11 A. Not that I recollect. But -- 12 Q. I'm sorry. 13 A. I'm sorry. I simply have Dr. Allen's 14 report. 15 MR. HULME: His deposition was last 16 week, Doctor. 17 MR. HIRSHMAN: I didn't send you it. 18 A. I don't have his deposition. 19 Q. You met with Mr. Hirshman today prior 20 to the deposition? 21 A. Yes. 22 Q. How long did you meet? 23 A. For about an hour and a half. 24 Q. In this room? 60 1 A. Yes. 2 Q. Just the two of you present? 3 A. For most of the time, yes. 4 Q. And what was the substance of your 5 discussion with Mr. Hirshman? 6 MR. HIRSHMAN: You're not going to 7 answer that question. On principle I'm going to 8 ask you not to answer that question. 9 MR. TRAVIS: What's the basis? 10 MR. HIRSHMAN: Work product. I never 11 asked you what any of your experts say, and I 12 wouldn't do it, what kind of conversations you 13 had with them in private, and I don't think 14 that's something you're entitled to, and I'm not 15 going to let him answer. 16 MR. TRAVIS: You're instructing him 17 not to answer? 18 MR. HIRSHMAN: Yup. 19 Q. Doctor, you never examined the 20 Plaintiff -- 21 MR. HIRSHMAN: And I might add I've 22 been most generous with what I've provided you 23 with, but I'm not going to let you get into 24 that. 61 1 Q. You did not examine the Plaintiff in 2 this case? 3 A. No. 4 Q. Not necessary for you to do so? 5 A. Not at this time, no. I have seen her 6 videotaped deposition, that is seen her on 7 videotape, but I have not actually examined her. 8 Q. You say not at this time, do you think 9 it will be necessary for you to examine her at 10 some point in the future? 11 A. I don't think so. 12 (Discussion held off the record.) 13 Q. Doctor, I'm going to show you each of 14 these x-rays and ask you for your 15 interpretation, and I'd like you to comment upon 16 anything of significance with respect to the 17 issues in this case, if there is anything. 18 A. Okay. 19 Q. First one is Allen Deposition Exhibit 20 E, and there's a little yellow post-it on it 21 indicating duplicate for insurance 4/2/90. Take 22 a look at this x-ray, please. 23 MR. MORIARTY: What is the date of 24 that x-ray? 62 1 MR. TRAVIS: 4/2/90. 2 A. This is a radiograph, I believe, of 3 the left posterior dentition, a dental film. 4 Specifically with respect to this case, it shows 5 teeth numbers 19 and 20. There are some 6 fillings present in those teeth, but otherwise, 7 in terms of the teeth and the surrounding bone, 8 I do not see any significant abnormalities. 9 Q. Can you describe the bony trabecular 10 pattern around tooth 19? 11 A. It appears to be normal, I think would 12 be the quickest way to describe that. 13 Q. Is it different from the trabecular 14 pattern of the other teeth shown on that x-ray? 15 A. Not in my opinion. 16 Q. Any other comments regarding that 17 film, Doctor? 18 A. No. 19 Q. Let's next look at Allen Exhibit F, 20 and I believe this is a film from 11/10/92. 21 MR. HIRSHMAN: Is that what it says on 22 the envelope? 23 MR. TRAVIS: There's a little yellow 24 sticky, and I had my paralegal sit down with 63 1 Dr. Kirby, and this is our best belief as to the 2 dates of these x-rays. 3 MR. HIRSHMAN: That was undated in the 4 Allen deposition. 5 MR. TRAVIS: Yes. 6 MR. HIRSHMAN: That was the one that 7 you said was 4/2/90 as well. 8 MR. TRAVIS: Correct. And I will try 9 to make clear for the record what these yellow 10 stickies say. And again, it's my belief based 11 on the meeting with Dr. Kirby and the paralegal 12 as to the dates of these films. 13 A. This film again shows the posterior 14 dentition, both sides. It shows that a root 15 canal has been done in tooth number 19 since the 16 previous film. Again, the fillings are present 17 in the majority of the teeth. The bony 18 trabecular pattern looks consistent with that 19 seen on the previous films. I see no evidence 20 of destruction of bone, no evidence of tumor or 21 infection. 22 MR. RYMOND: I'm sorry. What was the 23 date of that film, Doctor? 24 MR. TRAVIS: I believe it's 11/10/92. 64 1 MR. RYMOND: Thank you. 2 MR. HIRSHMAN: It's not on the film. 3 Just to make it clear, it's not on the film, 4 it's not on the envelope, and it was not 5 identifiable by date during Dr. Allen's 6 deposition. It was called at that time undated. 7 MR. TRAVIS: Correct. I think if you 8 compare Whelan's records to -- 9 MR. HIRSHMAN: Well, yeah, I'm not 10 suggesting you're wrong. I'm just saying we 11 didn't know at that time, and we may know now. 12 MR. TRAVIS: Okay. 13 Next, Doctor, we have Allen Exhibit G. 14 It's an envelope that has written on it 6/27/89 15 1 PA. And that's not on a yellow sticky, that's 16 on the original envelope. 17 MR. HIRSHMAN: What's the date again? 18 MR. TRAVIS: 6/27/89, Exhibit G. 19 A. Okay, this one again shows evidence of 20 a root canal. Now, I didn't see the root canal 21 in the '90 film, but it certainly shows up on 22 the '89 film in tooth number 19. Again, 23 fillings present in 18, 19 and 20. Very finely 24 stippled normal appearing bone pattern 65 1 surrounding all of the teeth. It appears 2 essentially the same throughout. Again, I don't 3 see any other particular abnormalities in the 4 film. 5 Q. Next one is Allen Exhibit H, and this 6 has on it in handwritten pencil, on the original 7 exhibit, Cathleen Lane 3/24/82. That's a series 8 of four bite wings, correct? 9 A. Yes, it is. And numerous fillings are 10 present throughout. I don't -- the root canal 11 is not present in tooth number 19 in this 12 particular film. The cortical and trabecular 13 pattern of the bone in particular around teeth 14 18, 19, 20 appears normal and intact. Again, no 15 evidence of any infection or neoplastic 16 destruction. 17 Q. Doctor, the next exhibit is Allen 18 Exhibit I, and these are eight bite wings, and 19 there are different dates for each row. The top 20 row is 2/10/87. Can you give us your 21 interpretation of those two films? 22 A. Again, the root canal is present in 23 tooth number 19. The cortical and trabecular 24 pattern, the pattern of the cancellous bone or 66 1 the marrow of the mandible appears to be normal 2 and intact. No evidence of bony destruction. 3 Q. The second row has what date above 4 that, Doctor? 5 A. The second row has 4/2/90 above it. 6 Q. And what's your interpretation of 7 those two bite wings? 8 A. It looks very similar to the bite 9 wings done on 2/10/87. Little, if any, change. 10 Q. Third row is dated what? 11 A. 8/7/91. 12 Q. What's your interpretation of those 13 two films, please? 14 A. Essentially identical to that of 15 4/2/90. 16 Q. And the fourth row? 17 A. 11/10/92. There's a little bit of a 18 cut off of the roots of that. But for what is 19 visible on that film, it appears identical to 20 that of the 8/7/91. 21 Q. I'm next showing you Allen Exhibit J, 22 which is a Panorex from -- according to the 23 white sticker on the film, not from my office, 24 it's dated 8/26/92. 67 1 A. Well, in terms of comparison between 2 this and the bite wings, it's a little 3 difficult. It's apples and oranges, really. 4 They're different techniques. But the best 5 comparison really comes from side to side. And 6 the dentition on the left mandible looks 7 essentially the same as it does on the right. 8 Certainly with respect to the bony pattern 9 itself I don't detect any destruction of bone 10 around tooth number 19 or number 20. 11 Q. Why does a doctor take a Panorex as 12 opposed to a bite wing? 13 A. Well, I think there can be a number of 14 different reasons. It can have to do with the 15 equipment that he has in his office. It can 16 have to do with what he's specifically looking 17 for. I think the Panorex looks at the entire 18 mandible. The bite wing is a more focused area. 19 I think in getting the large picture of the 20 mandible and the maxilla as well, and even a 21 little bit of the sinuses, the Panorex may do 22 better. It's certainly a better film for 23 fractures. But I think with detail -- with 24 regard to detail of localized specific bone, the 68 1 bite wing is a more accurate, detailed film. 2 Q. Anything else of significance in 3 Exhibit J, aside from what you've already 4 indicated, Doctor? 5 A. No. Again, numerous fillings are 6 present, and I don't detect any bony erosion or 7 interruption in normal bony detail. 8 Q. Okay. Exhibit K from the Allen 9 deposition is dated 5/26/95. 10 A. May I see the previous film? 11 Q. Certainly. I'm handing you back 12 Exhibit J. 13 A. Thank you. I think that the 14 penetration, that is the exposure, on the latter 15 film, the '95 film, is -- 5/26/95, is slightly 16 darker. But I don't, again, detect any bony 17 erosion or evidence of neoplasm surrounding that 18 left mandibular dentition on that film. I think 19 that it's essentially the same as the 1992 film. 20 Q. Exhibit L is a series of bite wings 21 dated 11/25/87. 22 A. Well, we've been going back and forth 23 in terms of date. The root canal appears to be 24 present here on these films in tooth number 19. 69 1 Again, the bony pattern surrounding the tooth 2 appears normal. I don't see any evidence of 3 bony destruction. 4 Q. Can you point out to us which of these 5 bite wings would show tooth 19? There is three 6 panels here, and just do the best you can to 7 make sure it's clear for the record what you're 8 pointing out. 9 A. Well, if I'm understanding the 10 orientation of this -- 11 Q. Let's look at it with the sticker 12 facing you. 13 A. All right. With the sticker facing 14 me, tooth number 19 would appear to be present 15 on the films directly to my left of the exhibit 16 sticker. There are two -- 17 Q. There are three panels, correct? 18 A. Three panels, yes. 19 Q. And you're referring to the left-most 20 panel? 21 A. No. I'm sorry. I'm referring to the 22 middle two panels and the upper two panels. 23 Both show that. 24 Q. Point out to me what you're looking 70 1 at? 2 A. These two (indicating), and these two 3 (indicating). 4 Q. The exhibit folds over itself, and 5 there's a middle panel, a left panel and a right 6 panel, correct? 7 A. It's a triptych, yes. 8 Q. That's what it's called? 9 A. In Medieval paintings, that's what it 10 would be called. 11 MR. HULME: Let's refer to rows and 12 columns. 13 MR. TRAVIS: Okay, that's a good idea. 14 Rows and columns. 15 We have three rows and seven columns, 16 correct? 17 A. Yes. 18 Q. And please identify by row and column 19 which films show 19. 20 A. My interpretation of this is that rows 21 one and two -- I'm sorry. Columns one and two, 22 rows one and two show tooth number 19. 23 Q. So a total of four? 24 A. Yes. 71 1 Q. And no abnormality on those four bite 2 wings? 3 A. That's correct. 4 Q. Doctor, I'm next showing you Allen 5 Exhibit M, and this is a series of eight bite 6 wings. The top row is 1/18/94, and the second 7 row 5/26/95. Let's first get your 8 interpretation of the top row 1/18/94. 9 A. My interpretation of 1/18/94 is that 10 there's no bony abnormality or destruction on 11 those films, surrounding the teeth numbers 19 12 and 20. 13 Q. 5/26/95? 14 A. I would say the same. It looks stable 15 between those two dates, the films. 16 Q. The last exhibit from the Allen 17 deposition consisting of films is Allen 18 Exhibit N, and it's a film from a card from 19 Dr. Synenberg's office dated 12/18/95. 20 A. The 12/18/95 film shows now a root 21 canal in tooth number 20 that hadn't been 22 present before. 23 Q. As well as 19? 24 A. As well as 19. It shows destruction 72 1 of the trabecular pattern and darkening of the 2 bone and loss of cortical bone, that is the 3 lining of the thick outer plate of the bone of 4 the mandible between teeth numbers 18 and 19. 5 And I believe that there's also some darkening 6 of bone between the roots of tooth number 19, 7 suggestive of a process surrounding that 8 posterior root, or the back root of that tooth. 9 It seems to extend down to the lower part of 10 that root. Below that the bone appears to be 11 intact, of normal pattern, and without evidence 12 of destruction inferior to that. 13 Q. Is what you see on Allen Exhibit N 14 consistent with an infection? 15 A. In my opinion, infection could produce 16 a pattern similar to that. 17 Q. Do you have an opinion as to whether 18 the plaintiff did in fact have an infection in 19 December of 1995? 20 A. My opinion would be that that bony 21 destruction that is visible in December of 1995 22 on that bite wing is produced by a malignant 23 tumor as opposed to infection. 24 Q. Have you ruled out the possibility of 73 1 the Plaintiff having both an infection and a 2 neoplasm? 3 A. Those two conditions may coexist. 4 Q. And they may have coexisted in this 5 case? 6 A. That is possible. 7 Q. Doctor, do you have an opinion when 8 the squamous cell carcinoma in the Plaintiff 9 first arose? 10 A. It's my opinion that it first arose 11 somewhere between October 10th of 1995 and 12 December of 1995, mid-December. The date on 13 this again was December 18th. 14 Q. Can you be any more specific as to 15 when the cancer arose? 16 A. I can't give you a specific date, if 17 that's the question. 18 Q. Your opinion to a reasonable medical 19 probability is that the cancer first arose 20 sometime between October 10th, 1995, and 21 December 18th, 1995, but you cannot be more 22 specific, correct? 23 A. Correct. 24 Q. Do you have an opinion as to when the 74 1 squamous cell carcinoma should have been 2 diagnosed? 3 A. The squamous cell cancer should have 4 been diagnosed I think in December of 1995. 5 Q. What is your basis for saying that? 6 A. Well, let me put it this way, if I 7 could back up a little bit. I think at the 8 latest the squamous cell cancer should have been 9 diagnosed in December of 1995. I say that 10 because this patient had previous cancer in her 11 mouth. She had had a biopsy in October of 1995 12 revealing severe dysplasia of a leukoplakic 13 lesion in her mouth. And in December of 1995, 14 she developed a swelling in the left side of her 15 mouth in the region of tooth number 19. And all 16 of these symptoms and findings certainly should 17 carry with them a differential diagnosis of a 18 malignant tumor and should have prompted the 19 physicians and dentists taking care of her at 20 the time aggressively to pursue that diagnosis. 21 Q. Now, you say you believe the diagnosis 22 should have been made at the latest in December 23 of 1995. When is the earliest you believe the 24 diagnosis could have been made? 75 1 A. I think that the diagnosis could have 2 been made -- 3 MR. HIRSHMAN: Let me just interrupt. 4 And I'm not suggesting that it would be 5 misinterpreted. But we're talking about a 6 diagnosis of a squamous cell carcinoma rather 7 than of the preexisting dysplasia, right? 8 MR. TRAVIS: Exactly. 9 And you understood that, Doctor, 10 didn't you? 11 A. Yes. Well, again, it's difficult to 12 give a specific day on which that diagnosis 13 could have been made. But I believe that given 14 the findings on the December 18th, 1995, film 15 that the tumor was present for at least a mouth 16 before, and therefore the diagnosis should have 17 been able to be made somewhere at least in 18 November of 1995. 19 Q. Why do you say that the tumor was 20 present at least a month? 21 A. Well, because given the fact that 22 there was some tumor present in the socket and 23 that some bone erosion was visible in December 24 of 1995. That type of erosion would not take 76 1 place within just a few days. It would take 2 some longer period of time than that to occur, 3 and therefore at some point prior to that the 4 diagnosis should have been able to be made. 5 Q. Do you have an opinion as to whether a 6 month before December 18th, 1995; namely, 7 November 18th, 1995, there would have been any 8 radiographic evidence of a tumor? 9 A. That I'm not certain. 10 Q. You cannot state to reasonable medical 11 probability? 12 A. No. 13 Q. Doctor, as of December 18th, 1995, is 14 the cancer in the jaw? 15 A. I'm sorry. Could you repeat that? 16 Q. As of December 18th, 1995, is the 17 cancer in the patient's jaw? 18 A. Yes, it is. 19 Q. If a diagnosis had been made at that 20 time, surgery would have included removing part 21 of the jaw, correct? 22 A. Yes. 23 Q. And when a surgeon performs surgery 24 such as this, he or she will go beyond the 77 1 cancerous area to try to avoid any residual 2 cells that may cause cancer in the future, 3 correct? 4 A. Yes. 5 Q. Do you have an opinion as to how 6 extensive the surgery would have been in this 7 patient had the surgery been undertaken shortly 8 after December 18th, 1995? 9 A. Yes. 10 Q. And what is your opinion? 11 A. My opinion is that at that point the 12 surgery could have been performed using a 13 marginal resection of the mandible; that is, a 14 saucer-shaped piece of the upper portion of the 15 mandible could have been removed, or rectangular 16 piece, without going through the mandible 17 completely and removing the lower rim; that is, 18 performing a segmental resection of the 19 mandible. 20 Q. Has it been your experience that in 21 some patients you start with a marginal 22 resection and then have to do a segmental 23 resection thereafter? 24 A. Have I ever had that experience 78 1 personally? 2 Q. Right. 3 A. Not that I can recollect. 4 Q. Are you aware of that occurring in 5 medical practice? 6 A. Yes. 7 Q. What happened in this particular 8 patient after the diagnosis actually was made, 9 in terms of surgery? 10 A. This patient underwent a segmental 11 resection of the mandible initially in . . . 12 I believe it was May of 1996, May 2nd of 1996. 13 Q. You're looking at Exhibit D? 14 A. Exhibit D, yes. 15 Q. And then she needed additional surgery 16 thereafter, did she not? 17 A. She did, yes. 18 Q. And what additional surgery was that? 19 A. She had a further resection of the 20 posterior portion of her mandible with 21 reconstruction with a muscular flap. 22 Q. And she had additional surgery still, 23 correct? 24 A. She did, yes. 79 1 Q. And what was that additional surgery? 2 A. Again, looking at Exhibit D, there was 3 a resection of the left tongue in October of 4 1996, and she has had subsequently surgeries at 5 Mt. Sinai Hospital in New York for 6 reconstructive purposes. 7 Q. So it's been necessary to go back on 8 multiple occasions to get cancer out that the 9 surgeons had hoped they initially had removed, 10 correct? 11 A. Well, I think the only occasion where 12 I could document that the initial resection was 13 incomplete would have been the -- on one other 14 occasion, that is the June 3rd, 1996, resection. 15 The others I could not state were related to 16 removals of that same cancer. 17 Q. What about the left tongue in October 18 of '96, is that an independent cancer? 19 A. Conceivably. 20 Q. So any failure to timely diagnose the 21 condition in the floor of the mouth of this 22 patient is unrelated to the surgery that was 23 necessary on the left tongue in October of '96, 24 correct? 80 1 A. As I say, I don't know for certain. 2 Q. You do not have an opinion to a 3 reasonable medical probability that the left 4 tongue cancer operated on in October of '96 was 5 not diagnosed timely by these Defendants, do 6 you? 7 A. In other words, are you asking me is 8 this the same cancer that they had failed to 9 diagnose earlier on? 10 Q. Yes. 11 A. I don't know. I'm frankly not certain 12 as to the exact location of that left tongue 13 resection. I'm not certain that I have the 14 distinct records with regard to that. I'm not 15 certain that I have had that operative note. 16 Q. So as we sit here today, you're not 17 prepared to testify to a reasonable medical 18 probability that any of the Defendants deviated 19 from the standard of care with respect to the 20 left tongue, correct? 21 A. With respect to that one specific 22 lesion which required surgery in October of 23 1996, I'm not certain as to the status of that 24 particular tumor, that's correct. 81 1 Q. Do you have an opinion where the 2 cancer that you say is shown on Exhibit N, the 3 12/18/95 film, arose from, the floor of the 4 mouth, buccal side, lingual side or anyplace 5 else? 6 A. I'm sorry. Could you repeat that? 7 Q. Where did that cancer come from shown 8 on the film from December of 1995 in your 9 opinion? 10 A. In my opinion, that cancer came from 11 the dysplastic area that was present in the left 12 floor of mouth on the lingual side. 13 Q. And what's your basis for that 14 opinion? 15 A. The fact that there was a severe 16 dysplasia in that tissue, and that that is a 17 premalignant lesion, and that the tumor arose 18 essentially in that same location. 19 Q. Is it your opinion, then, that the 20 cancer arose from the soft tissue as opposed to 21 the bone? 22 A. Yes. 23 Q. Could this cancer have arisen from the 24 bone? 82 1 A. No. 2 Q. Why do you say that? 3 A. I don't believe that squamous cell 4 cancer ever arises in bone. That is not a cell 5 type that is contained in bone. And primary 6 squamous cell cancers simply do not occur in 7 bone. 8 Q. This patient had a cancer on the right 9 side of her mouth in 1982, correct? 10 A. Yes. 11 Q. And then this cancer in 1996 was on 12 the left side, correct? 13 A. Yes. 14 Q. Is there any relationship between the 15 two cancers? 16 A. I don't believe so. 17 Q. They arose independently? 18 A. Yes. 19 MR. TRAVIS: Should we take a break 20 now? We've been going for a couple of hours. 21 Why don't we take a ten-minute break. 22 (Short recess taken.) 23 Q. Doctor, do you have an opinion as to 24 what stage the cancer was in December of 1995? 83 1 A. Yes. 2 Q. And what is your opinion? 3 A. I think that the cancer in December of 4 1995 was a T1 -- I'm sorry. Was a Stage I or a 5 Stage II tumor. 6 Q. And what is your basis for that 7 opinion? 8 A. Cancers in the oral cavity are staged 9 according to a combination of size, lymph-node 10 involvement, and evidence or existence of 11 metastatic tumors. This tumor was under four 12 centimeters in size as of December of 1995; four 13 centimeters being the upper limit that separates 14 a so-called T2 from a T3 tumor. There was no 15 evidence of lymph-node involvement at that time. 16 Q. Nor at any time? 17 A. Nor at any time, that's correct, and 18 no evidence of distant metastases. So that at 19 most this was a T2N0M0 squamous cell cancer or a 20 so-called Stage II tumor. 21 Q. You said initially it was either Stage 22 I or Stage II, could have been either? 23 A. Yes, it could have been -- it could 24 have been at that point smaller than two 84 1 centimeters by descriptions of the size of the 2 swelling. And if it's under two centimeters, it 3 would be a 21N0M0 tumor or a Stage I. 4 Q. Do you have an opinion based on 5 reasonable medical probability as to the size of 6 the tumor on December 18th, 1995? 7 A. I think that as of December 1995 I can 8 only say that the tumor was well under -- was 9 under four centimeters. 10 Q. How do you know that? 11 A. By looking at the -- by looking at the 12 radiographic films and by reading the 13 descriptions of the so-called bubble or lump 14 that was made by Cathleen Lane and by other 15 physicians. 16 Q. What is it about the radiograph -- and 17 I presume you're referring to Lane Exhibit N -- 18 that tells you it's under four centimeters? 19 A. Well, simply that at least the visible 20 portion that can be seen by the change in the 21 bone pattern would be well under four 22 centimeters in size. 23 Q. What description are you referring to 24 when you say that the size is under four 85 1 centimeters? 2 A. My recollection is that Cathleen Lane 3 in her deposition did not describe a large 4 tumor. And, no, I don't think there were any 5 other descriptions that described a large tumor. 6 The other point would be that when this tumor 7 was removed in -- let me get the date again. I 8 think it was May of 1996, by Dr. Stepnick, that 9 it was at that point a five-centimeter tumor. 10 And given the recognized doubling rates of these 11 types of tumors, this tumor would have been 12 smaller than five centimeters just a few months 13 before, in December. 14 Q. Off the record. 15 (Short recess taken.) 16 Q. Doctor, do you have an opinion as to 17 what stage the tumor was in January of 1996? 18 A. In January of 1996, again, my opinion 19 would be that this was a -- most likely a Stage 20 II tumor. 21 Q. And the basis for that opinion? 22 A. Would be, again, related to the growth 23 rates of a tumor such as this in a patient such 24 as this, and the fact that there were no 86 1 descriptions of a tumor that was of large size, 2 of four centimeters in size. 3 Q. What is it that you're referring to 4 when you say growth rates of tumors? 5 A. Again, to my experience with tumors 6 such as this and with past readings that relate 7 to growth rates of tumors that talk 8 about doubling times in the five- to ten-day or 9 five- to twelve-day periods of time. 10 Q. Are you saying that this tumor doubled 11 in five to ten or five to twelve days? 12 A. Well, in terms of -- that's the likely 13 doubling time in a tumor such as this. But that 14 in terms of actually doubling in size, that 15 typically requires three doublings of cell 16 numbers, because we're talking about a cubic 17 shape, a three dimensions of size increase. So 18 it would take three times that or somewhere 19 between 15 and 30 days for doubling size to 20 occur, doubling in size. 21 Q. How many days? 22 A. Between 15 and 30. 23 Q. Well, you've testified that in your 24 opinion the tumor was something under four 87 1 centimeters in December, and we know it was five 2 centimeters in May of '96. How does that 3 comport with your theory of doubling in 15 to 30 4 days? 5 A. Well, that the tumor -- I said that 6 the tumor was under a certain size as of -- I 7 think you said December of 1995, or January of 8 1996, and I don't think that it's at all 9 inconsistent that a tumor under that size 10 doubling somewhere in the range of, in terms of 11 its overall size, in the 15- to 30-day period, 12 could get to a size of five centimeters. 13 Q. Can we look at the size of the tumor 14 in May of '96 and go backwards using your 15 doubling theory and estimate the size in 16 December of '95? 17 A. That's what I'm doing, yes. 18 Q. Well, let's do that then. In May of 19 '96, it's five centimeters. What is it in April 20 of '96? 21 A. Well, I'd have to -- that would -- in 22 April of '96 -- it would again depend 23 specifically on the doubling time of the tumor. 24 In other words, I've given you a range of 88 1 doubling times, and so to give you a specific 2 size would be difficult. I'm not certain that I 3 could give you within a month what that would 4 be, but certainly it would be under five 5 centimeters. That's -- you're talking about -- 6 what time in May are you talking about when you 7 say five centimeters? 8 Q. Well, let's look at the record. When 9 was that surgery? 10 A. You're talking about the surgical 11 date? 12 Q. Yes. 13 A. The surgical date I think was May 2nd, 14 1996. 15 Q. And it was measured to be five 16 centimeters at that time, correct? 17 A. That was the gross estimate of the 18 tumor at that time, yes. 19 Q. Do you have any evidence to disagree 20 with that estimate? 21 A. No, not in particular, except to say 22 that at the time that that tumor was resected a 23 small amount of residual tumor was said to be 24 present. But that would be a close estimate, I 89 1 believe. 2 Q. So let's go back a month to April 2nd, 3 1996. Do you have an opinion based on a 4 reasonable medical probability as to the size of 5 the tumor at that time? 6 A. Well, if we took the upper limits of 7 the periods of time that I've given you in terms 8 of doubling time, the tumor would be somewhere 9 in the range of -- I would estimate three 10 centimeters. 11 Q. And let's go to March of 1996, March 12 2nd, two months back from the five-centimeter 13 measurement. Do you have an opinion to a 14 reasonable medical probability as to the size of 15 the tumor as of March 2nd, 1996? 16 A. Again, that would be somewhere in the 17 range of two centimeters. 18 Q. February 2nd, 1996, do you have an 19 opinion based on a reasonable medical 20 probability as to the size of the tumor at that 21 time? 22 A. Somewhere in the range of a centimeter 23 to a centimeter and a half. 24 Q. January 2nd, 1996, do you have an 90 1 opinion as to the size of the tumor based on 2 reasonable medical probability? 3 A. Under a centimeter. 4 Q. And December 2nd, 1995, do you have an 5 opinion as to the size of the tumor based on 6 reasonable medical probability? 7 A. Somewhere in the range of under a 8 centimeter. 9 Q. Now, earlier, Doctor, you estimated 10 the size as being something under four 11 centimeters as of December 18th, 1995, are you 12 now changing your testimony? 13 A. No. Again, I think -- 14 MR. HIRSHMAN: Sounds pretty 15 consistent to me. 16 A. -- that those numbers are under four 17 centimeters. 18 Q. Well, why didn't you say under one 19 centimeter, if that's your opinion? 20 A. I think you had asked me to give my 21 indication of stage of the tumor, and at that 22 time I told you that at the most I thought that 23 the tumor would be a four centimeter. Again, 24 there are certain ranges for growth rates. But 91 1 if anything, I think that the tumor seems to 2 have been smaller than that if one assumes a 3 growth rate or a doubling rate of between 5 and 4 12 days. 5 Q. What was the prognosis for this 6 patient as of December of 1995? 7 A. As of December of 1995, if this were a 8 Stage I tumor, the prognosis would be in excess 9 of 80 percent five-year survival rate. For a 10 Stage II tumor, it would be in the range of 60 11 to 65 percent five-year survival rate. By the 12 calculation that I gave you, it would be a T1 13 tumor in December of 1995, or, again, a survival 14 rate in the 80-percent range. 15 Q. So now you're saying you think it was 16 a Stage I, not a Stage I or a Stage II in 17 December? 18 A. Well, I think to be fair, and to 19 recognize that there is some variability in 20 growth rates, that this was a Stage I or a Stage 21 II tumor. 22 Q. Do you have an opinion as to -- on 23 reasonable medical probability as to one or the 24 other, or the most that you can say to 92 1 reasonable medical probability was a Stage I or 2 a Stage II? 3 A. I would say it's a Stage I or a Stage 4 II tumor. 5 Q. And that's as far as you can say based 6 on probability, correct? 7 A. Yes. 8 Q. So her five-year survival as of 9 December '95 would have ranged between 60 and 80 10 percent, correct? 11 A. Correct. 12 Q. Now, you speak of five-year survival 13 rates, that's the usual way of assessing the 14 prognosis of a cancer patient? 15 A. For squamous cell cancer it is, yes. 16 Q. Are you aware of any data regarding 17 ten-year survival rates? 18 A. I'm not certain, no. 19 Q. What was this patient's prognosis as 20 of January of 1995 -- '96, rather? 21 A. It would be the same. Although, if 22 the tumor were enlarging, obviously it would be 23 slightly worse than it had been in December of 24 1995. But by staging criteria, it would be the 93 1 same. 2 Q. In February of '96, do you have an 3 opinion as to the prognosis of this patient? 4 A. I think I would give you the same 5 answer that I gave for January. 6 Q. March of '96? 7 A. What did we determine was the size in 8 March? 9 Q. Well, I wrote down two centimeters. 10 MR. HIRSHMAN: That's what you said, 11 two centimeters. 12 A. Yes, two centimeters. Then that would 13 be, again, between a Stage I and Stage II tumor 14 or somewhere in the range of 60 to 80 percent 15 five-year survival. 16 Q. April of '96? You're looking at my 17 notes. You said three centimeters. 18 A. Three centimeters, thank you. That 19 would be a Stage II tumor or survival rates in 20 the 60-percent range, 60 to 65 percent. 21 Q. May of '96, prognosis? 22 A. In May of '96, the tumor had become a 23 Stage III tumor, and her prognosis would fall 24 into the 40 percent, approximately 40 percent 94 1 five-year survival. 2 Q. You earlier testified, Doctor, I 3 believe, that there have been no metastases of 4 this cancer which you believe was present in 5 December of 1995, correct? 6 A. Correct. 7 Q. And there have been no node 8 involvements, correct? 9 A. Nothing documented, yes. 10 Q. She had the initial resection and then 11 a mandibular procedure, correct? 12 A. She did, yes. 13 Q. Is the mandibular procedure in your 14 opinion related or unrelated to the cancer which 15 you believe was present in December of 1995? 16 MR. HIRSHMAN: She had two mandibular 17 procedures, right? 18 Q. She had a partial resection initially, 19 correct? 20 A. You're talking about the surgeries now 21 in -- 22 MR. HIRSHMAN: May and June. 23 Q. Yes. 24 A. Yes, 1995. 95 1 Q. Right. 2 A. She had an initial segmental resection 3 of her mandible in May of 1995 -- '96. I'm 4 sorry. 5 Q. Which you believe is related to the 6 cancer which you believe was present in December 7 of '95, correct? 8 A. Well, in other words, that is the same 9 cancer for which she received eventual 10 mandibular resection, yes. 11 Q. Well, do you -- is that your opinion? 12 A. Yes, it is. 13 Q. And then she'd a more extensive 14 procedure, a mandibulectomy; is that the right 15 term? 16 A. She had further resection of her 17 mandible, yes, mandibulectomy. 18 Q. And do you have any opinion as to 19 whether that mandibulectomy is related or 20 unrelated to the cancer which you believe was 21 present in December of '95? 22 A. It is related to that. 23 Q. And what's your basis for that? 24 A. She had visible erosion of bone on her 96 1 bite-wing films in December of 1995; she had a 2 subsequent biopsy of that dental socket of tooth 3 number 19 by Dr. Goldberg which revealed 4 squamous cell cancer; and she underwent surgical 5 therapy for that tumor which had been diagnosed, 6 I think, on April 18th, 1996, by way of a 7 mandibulectomy on May 2nd of 1996. 8 Q. Suppose the cancer had been diagnosed 9 in December of 1995, and she had had a resection 10 at that time, how do you know she wouldn't have 11 gone on to have a mandibulectomy even if there 12 had been a diagnosis in December of 1995? 13 A. Well, by the appearance of the films 14 in December of 1995, the bite-wing films, the 15 tumor or bony erosion did not extend below the 16 tooth root or the dental socket of the mandible. 17 And at that point the tumor was, again by these 18 growth-rate predictions, a Stage I or Stage II 19 tumor. I believe I said likely a Stage I in 20 December of 1995 but possibly a Stage II. And 21 at that time, because of the amount of bony 22 involvement, it is my opinion that she could 23 have undergone a marginal resection, or a 24 resection of the upper portion of the mandible, 97 1 without a through-and-through resection. 2 Q. But to your knowledge, it's possible 3 even had it been diagnosed in December of 1995 4 and she underwent a marginal procedure, that she 5 might have needed a further operation and a 6 mandibulectomy? 7 A. Well, I think if we're talking about 8 possibility versus probability, the possibility 9 might exist that that would be necessary. But 10 in terms of probability, in December of 1995 11 it's my opinion that she probably would not. 12 Q. Do you have any opinion as to how much 13 additional bone involvement, if any, there was 14 between December of '95 and May of '96? 15 A. Well, I think enough to require a 16 segmental resection in the judgment of 17 Dr. Stepnick. Again, if one can -- that's a 18 difference of nearly five months, I think just a 19 week or two short of a five-month period, which 20 would have allowed certainly a doubling, if not 21 more, of the size of the tumor, and certainly 22 more extensive involvement of bone. And I think 23 that's as accurate as I can be in my answer. 24 Q. Do you know from any radiographics 98 1 whether there was any additional bony 2 involvement between December of 1995 and May of 3 '96? 4 A. I don't specifically. 5 Q. Have you ever looked at the x-rays 6 that were marked in Dr. Callahan's exhibit -- 7 his deposition. 8 A. I am not certain if I have or not. I 9 have looked at films, but I'm not certain which 10 ones -- I can't recollect specifically which 11 ones were marked in his exhibit (sic). I'm 12 sorry. 13 Q. Is the only basis for your opinion 14 that there was additional bony involvement 15 between December of 1995 and May of 1996 the 16 doubling rate of tumors? 17 A. Well -- yes. 18 Q. Doctor, with respect to the five-year 19 survival, the plaintiff has made it more than 20 three years now, correct? 21 A. Yes. 22 Q. Every day that goes by without a 23 recurrence improves her prognosis? 24 A. That's an interesting question. I 99 1 think that her prognosis is her prognosis. 2 Certainly every day that she survives is a 3 blessing to her and a bonus to her. But whether 4 that improves her overall prognosis with respect 5 to ability to survive five years, I'm not 6 certain. 7 Q. Well, suppose you compare one patient 8 who's one day post-cancer diagnosis to a patient 9 who's five years minus one day cancer with no 10 intervening recurrence. Certainly you'd agree 11 that the person who's almost made it to five 12 years has a much better prognosis than the 13 person who is one day post-cancer, correct? 14 A. Well, I think that -- yes, I would say 15 that person has a better chance of surviving 16 five years if there's only one day to go as 17 opposed to five years to go, yes. 18 Q. And is it also true that patients who 19 are more than 60 percent into the five-year 20 post-cancer period, like the Plaintiff, without 21 a recurrence, are less likely to have a 22 recurrence than someone who has not made it that 23 far? 24 A. I don't -- I couldn't document that by 100 1 any literature that I'm familiar with. I don't 2 know the answer to that specifically. I mean, 3 it would seem reasonable that that's the case, 4 but I can't document that. 5 Q. Can you state that it is likely the 6 Plaintiff will survive given that she has lived 7 this long? 8 A. Well, I think that she's survived 9 three and a half years, and I think that she 10 still would have a five-year survival rate in 11 the 40-percent range. In other words, she has 12 not survived the five years, and I think that 13 she still lives with that number. 14 Q. If a patient does live to the full 15 five years, the probability is that the patient 16 will have a normal life expectancy then, 17 correct? 18 A. Well, I'm not certain that that's the 19 case. She is a woman who had a cancer back in 20 1981 and 1982, certainly survived in excess of 21 ten years without development of a cancer, but 22 then did develop another oral cavity cancer. 23 From this specific tumor, if she lives five 24 years, then the likelihood of this tumor 101 1 recurring is small. But she does have a 2 diseased, or it appears a mucous membrane that 3 has a tendency to form this type of tumor. But, 4 again, that doesn't relate specifically to this 5 tumor. 6 Q. Do you know, Doctor, what percentage 7 of patients who do not survive five years have 8 evidence of a recurrence within the first three 9 years? 10 A. I can't give you a specific number, 11 but I think it would be a high percentage of 12 those who do not survive develop recurrences 13 within that period of time. 14 Q. And a high percentage meaning 70 or 80 15 percent? 16 A. That appears reasonable. 17 Q. I'd like to talk about Dr. Kirby. Is 18 it your opinion that he deviated from the 19 standard of care? 20 A. It is, yes. 21 Q. In what respects do you believe 22 Dr. Kirby deviated from the standard of care? 23 And are you looking at your report now? 24 A. Yes. Oh, I'm sorry, do you want me 102 1 to -- 2 Q. The question was: In what respects do 3 you believe Dr. Kirby deviated from the standard 4 of care? 5 A. Well, my main consideration with 6 Dr. Kirby would be that he did not get the 7 results of the two biopsies that had been 8 performed by Dr. Witt earlier in 1995, such that 9 he would have those for his records; that he did 10 not formulate a differential diagnosis with 11 respect to the swelling by tooth number 19 in 12 Cathleen Lane to include a malignant or 13 neoplastic lesion; and that he did not notify 14 the physicians to whom he, or the dentists to 15 whom he had referred Mrs. Lane of the results of 16 her biopsies that had been performed by Dr. Witt 17 in October of 1995. 18 Q. Well, he did not know about Dr. Witt's 19 biopsy findings, having not been provided with 20 the report, correct? 21 A. That's correct. But my criticism of 22 him is that he did not contact Dr. Witt or 23 contact the hospital at which the biopsies had 24 been done to obtain the results of those 103 1 biopsies. 2 Q. And you described that in answering my 3 question as your main consideration, correct? 4 A. Well, I think I gave three reasons as 5 to why I thought that there had been a deviation 6 from standard of care. I don't know if one is 7 more main than the other, but I think they 8 interrelate. 9 Q. Now, you do acknowledge that the 10 Plaintiff told Dr. Witt that she recently had a 11 biopsy and it was negative, correct? 12 A. Yes. 13 Q. What's a dentist to do when he's told 14 something like that by an intelligent patient 15 who's aware of her condition and is an accurate 16 historian? 17 A. Well, as I said earlier on when you 18 asked me about history taking, I think that 19 physicians and dentists have to be very careful 20 about what they're told by patients and have to 21 demonstrate some skepticism. The word 22 "negative" may mean that there's no cancer 23 present, or it could mean that it's completely 24 normal tissue. And I think that it's incumbent 104 1 upon the physician who receives that report to 2 get the report in writing to determine just 3 which type of negative is meant. So I think 4 that's what he's to do, is to get the report in 5 writing and to make his own decision as to what 6 the meaning of that report is. 7 Q. Are you saying that that would be a 8 good idea or are you saying that that's required 9 by the standard of care? 10 A. I believe that's required by the 11 standard of care. 12 Q. Why do you believe that's required by 13 the standard of care? 14 A. I believe that's required by the 15 standard of care because that is the only 16 objective and reliable manner in which the 17 results of the report can be obtained. I think 18 that to attempt to assess a patient in terms of 19 reliability and medical knowledge and to know 20 how much weight to attribute to a report of a 21 finding is a dangerous situation that is often 22 times going to lead to inaccuracies in terms of 23 history taking, and thus my opinion that the 24 standard of care would dictate that it's 105 1 imperative that the physician obtain the report 2 in writing so that he has it from a medical 3 person. The other way of doing it, the way that 4 was done, leads to too much potential for error. 5 In terms of the person who reads the report, who 6 knows what that person's knowledge is, and that 7 person who conveys the report to the patient, 8 how the patient interprets that report, and then 9 what the patient says to the physician in turn, 10 I think, gives a lot of opportunity for errors 11 from the actual report. 12 Q. Doctor, near the beginning of our 13 deposition you said you thought you were 14 knowledgeable regarding the standard of care for 15 dentistry in certain aspects. What is it about 16 your background that allows you to testify as to 17 the standard of care regarding biopsies in 18 dentistry practice in this case? 19 A. Well, I receive many referrals from 20 dentists. I work closely with dentists. I've 21 been a patient of dentists. I work with 22 dentists in the care and reconstruction of 23 patients with oral cavity cancers. I share 24 office building space with dentists and oral 106 1 surgeons. And I think, based on my observations 2 of them over 20 to 25 years, that I know how 3 they work. And I think that if any physician, 4 regardless of discipline, is going to take care 5 of abnormal lesions in the oral cavity, I think 6 that there's a standard that goes across the 7 specialities as well in terms of how those have 8 to be -- how those lesions have to be addressed. 9 Q. Doctor, earlier you indicated that 10 it's reasonable for doctors to take a 11 wait-and-see approach with dysplasia, correct? 12 A. Well, I think what I said was that the 13 dysplastic lesions should be followed closely, 14 but I did think that close and careful and 15 frequent observation of those dysplastic lesions 16 is one way of following these. My personal 17 approach in caring for Cathleen Lane would have 18 been, and it's my opinion that it should have 19 been, that this lesion would have been removed 20 when it appeared in February of 1995, or when it 21 was first noticed anyway. But I would agree 22 that there would be those who would choose to 23 follow this. I don't think that would be 24 outside the standard of care. But I think that 107 1 that implies that close, careful, frequent 2 follow-up is carried out. 3 Q. So in February of 1995, it would not 4 be outside the standard of care to follow 5 closely, without biopsying, the lesion that you 6 believe was present in Plaintiff's mouth, 7 correct? 8 MR. HIRSHMAN: By Dr. Whelan. 9 A. In February of -- no, I think that -- 10 I think at some point a biopsy should have been 11 obtained to determine the nature of the lesion. 12 But in terms of following that with resection, I 13 do admit that there may be some difference of 14 opinion as to whether resection of a dysplastic 15 lesion may be necessary or if careful follow-up 16 of it would be sufficient. 17 Q. Now, Doctor, the patient first saw 18 Dr. Kirby on December 8th, 1995, does that 19 comport with your recollection? 20 A. Yes. 21 Q. Do you recall the patient saying that 22 she had pain in her lingual area which started 23 two weeks earlier? 24 A. I believe so, yes. 108 1 Q. Do you have any evidence to dispute 2 that? 3 A. No. 4 Q. Do you recall also her stating that 5 the tumor, or Dr. Kirby noting that the tumor 6 varied in size? 7 MR. HIRSHMAN: Do you want to show me 8 where it says anything about pain? I might be 9 wrong, but I'm looking here at my notes, and I 10 don't see any reference to pain. 11 MR. RYMOND: Let me take a look at 12 your notes, Toby. 13 MR. HIRSHMAN: I'll be glad to do that 14 when we're done with this case. 15 MR. RYMOND: Pardon. 16 MR. HIRSHMAN: When the case is over, 17 I'll be glad to let you do that. 18 MR. RYMOND: Well, I mean, if you're 19 disagreeing with him on the basis of your notes, 20 I think you have to share them. 21 MR. HIRSHMAN: It's a good theory. 22 It's a good theory. I like that. 23 MR. HULME: I also don't think there's 24 any reference to a tumor in those notes. 109 1 MR. TRAVIS: Okay, let me look at the 2 exact note and ask a precise question. 3 Dr. Kirby's note of December 8th, 4 1995, says, "Patient is aware of swelling on the 5 lingual of this tooth started about two weeks 6 ago." 7 A. Yes. 8 Q. And you have no evidence to dispute 9 that, correct? 10 A. Correct. 11 Q. Of what significance is that, if any? 12 A. Well, the significance is that that -- 13 that Mrs. Lane at that time was developing, or 14 had developed a cancer in the area of tooth 15 number 19 that was beginning to grow down into 16 the tooth socket along the root of the tooth. 17 Q. How do you know that? 18 A. By the bite-wing film that was taken I 19 believe on the -- ten days later, which showed 20 bone destruction there, and by the subsequent 21 biopsies of the dental socket that were taken by 22 Dr. Goldberg, which revealed cancer in that 23 area. 24 Q. The next notation in Dr. Kirby's chart 110 1 says, "Seems to vary in size," I think referring 2 to the swelling. Of what significance is that, 3 Doctor? 4 A. I don't think that it has any 5 particular significance. That's the patient's 6 perception. I don't know as if she ever truly 7 measured it to be able to say that. On the 8 other hand, inflammatory responses to and around 9 tumors can cause some intermittent swelling. 10 There can be some superimposed infection and 11 diseased bone that may vary somewhat. 12 Q. So what we've just looked at in the 13 chart here is consistent with an infection 14 process going on on December 8th, 1995, correct? 15 A. This would not be inconsistent with an 16 infection. Certainly that would be one of the 17 considerations in an appropriate differential 18 diagnosis of swelling in this area in a patient 19 such as this. 20 Q. And a couple of lines down it says, 21 "She states that the glands in her neck are sore 22 also." Is that of any significance, Doctor? 23 A. I think it would have very much the 24 same significance that the swelling around the 111 1 tooth would have, and that is that there can be 2 some inflammatory response to tumors or 3 superimposed infection, and that the glands, 4 which I'm presuming means lymph glands, that 5 drain that area may respond to that. 6 Q. Well, we know there was no metastasis 7 of this cancer to her lymph glands, correct? 8 A. That's correct. 9 Q. So this swelling as of December 8th, 10 1995, probably was an infectious process, 11 correct? 12 A. If there were in fact swelling of the 13 glands in her neck, that would be likely, that 14 there was some sort of inflammatory response, 15 yes, sir. 16 Q. Do you have any evidence to dispute 17 her having glands in the neck being sore as 18 noted in this chart? 19 A. No. 20 Q. Now, Doctor, you mentioned three 21 criticisms of Dr. Kirby: Did not get the 22 results of the biopsies of Dr. Witt, did not 23 formulate a differential diagnosis to include a 24 neoplasm, and not notifying subsequent 112 1 physicians about Dr. Witt's biopsy. Have I 2 accurately summarized those? 3 A. Yes. 4 Q. At what point do you believe that 5 Dr. Kirby should have gotten the results of the 6 two biopsies? 7 A. I think that Dr. Kirby should have 8 gotten the results of the two biopsies when he 9 first saw Mrs. Lane as a patient in December of 10 1995. 11 Q. Why do you feel that? 12 A. Well, because that I think is 13 important information as to the status of the 14 lesion that she had in her left floor of mouth. 15 And I think that in order to help him to guide 16 his care, to have knowledge of what that lesion 17 represented, it would be important for him to 18 have that report. 19 Q. Do you know if Dr. Kirby ever 20 considered whether the Plaintiff did have a 21 recurrence of this cancer when he was treating 22 her in this time frame? 23 A. I don't think that there was any -- in 24 the records I don't see any documentation that 113 1 there was any consideration given to that. 2 Q. If Dr. Kirby did state -- if Dr. Kirby 3 did have in his thought process the possibility 4 of Cathleen Lane having a recurrence, would you 5 then not be critical of him on the second count? 6 A. Well, I think by definition, as I 7 said, the criticism was that he did not 8 formulate or appear to formulate a differential 9 diagnosis that would be inclusive of malignant 10 disease. If he did in fact have malignant 11 disease in his differential diagnosis, then I 12 couldn't be critical on that second point, 13 although I would then be more critical that he 14 didn't act on that differential or act to rule 15 out that possibility in his differential 16 diagnosis. 17 Q. In this case there were other 18 physicians who were ordering the biopsies and 19 monitoring the patient for a possible recurrence 20 of cancer, correct? 21 A. Yes. 22 Q. Would it not be reasonable for 23 Dr. Kirby to believe that those physicians would 24 follow that situation: Order biopsies if 114 1 necessary, and act on those biopsies if they 2 were abnormal? 3 A. No. I think that that's a dangerous 4 situation. It's a little like tennis when the 5 ball is -- in doubles when the ball is hit down 6 the middle, somebody has to be -- everybody has 7 to be responsible for getting the ball. If 8 everyone assumes somebody else is going to get 9 it, then nothing is going to be hit back. And I 10 think it's similar here, that either somebody 11 has to be designated as being responsible and 12 everyone has to know about that, but, better 13 still, I think anyone caring for a patient like 14 this should be responsible for investigating the 15 cause. I think the best answer is anyone caring 16 for her had a responsibility to consider the 17 differential diagnosis of cancer and to work 18 either to establish that diagnosis or to rule it 19 out. 20 Q. Dr. Kirby saw the patient for the 21 second time on December 29th, 1995, is that 22 consistent with your recollection? 23 A. Yes. 24 Q. And at that time the site of the 115 1 biopsy was nicely healed, do you recall that? 2 MR. HIRSHMAN: "Healing nicely." 3 MR. TRAVIS: Okay, well. "Biopsy," it 4 says, "healed nicely." 5 MR. HIRSHMAN: It says "Healing 6 nicely," I believe. 7 MR. TRAVIS: Here's the actual chart. 8 MR. RYMOND: You are coaching the 9 witness. 10 MR. HIRSHMAN: Well, you're 11 representing facts here. 12 MR. TRAVIS: Well, doesn't it say 13 "Healed nicely," Toby. 14 MR. HIRSHMAN: I stand corrected. It 15 says "Healed nicely." I'm sorry about that. 16 When I'm corrected correctly, I acknowledge it. 17 Q. Of what significance is that, Doctor? 18 A. Well, I think that the significance is 19 that the site of the biopsy was able to heal. I 20 don't think that it has any significance other 21 than that. 22 Q. Let's assume hypothetically that as of 23 this second visit, December 29th, 1995, the 24 swelling had improved. If that was the case, of 116 1 what significance is that? 2 A. Well, again, there can be inflammatory 3 swelling around or in conjunction with malignant 4 swelling, that's a well-known occurrence, and it 5 may mean that there was less associated 6 inflammation or reaction to the tumor or that 7 there was less infectious -- concomitant 8 infection with it. 9 Q. And the infection, just so we're 10 clear, is unrelated to the neoplasm, correct? 11 A. Well, it's a different entity. But 12 certainly when there's damaged tissue or dead 13 tissue, then the bacteria in the mouth will 14 colonize that and create infection, so that the 15 neoplasm may lead to infection. 16 Q. Or it may be a totally independent 17 infection, correct? 18 A. I think it's more likely than not that 19 they would be related, but they could be 20 independent, yes. 21 Q. Your third criticism of Dr. Kirby was 22 that he did not notify subsequent physicians of 23 the Dr. Witt biopsy. At what point do you 24 believe that Dr. Kirby should have done that? 117 1 A. I think that right at the time that 2 any referral was made -- I believe there was a 3 referral made to a Dr. Stone, and then a 4 referral made to Dr. Callahan. That at the 5 times of those referrals, a phone call or a 6 letter should have gone to, with a copy of the 7 pathology report, have gone to each of those 8 dentists in turn. 9 Q. I'd like you to -- have you now stated 10 all the criticisms you have of Dr. Kirby? 11 A. I believe so, yes. 12 Q. I'd like you to flip through his 13 deposition transcript, and you have underlined 14 some portions, and I'd just like you to comment 15 on any underlining that you believe is 16 significant to any opinions you hold with 17 respect to Dr. Kirby. And several of them are 18 like his education or that he's a general 19 dentist, and I presume those are not of 20 particular significance, but I'd like you to 21 tell me, Doctor, which statements you're relying 22 upon for any of your opinions relating to 23 Dr. Kirby. 24 A. This is going to take a minute. I'm 118 1 sorry. 2 Q. That's okay. 3 MR. RYMOND: Should we go off the 4 record, give you a few minutes to go do that? 5 If you think it's going to take five or ten 6 minutes, why don't we go off the record. 7 MR. TRAVIS: I don't know if it's 8 easier to do it as you go along or to save it 9 up. You tell us, Doctor. Do you want to do it 10 as you flip through it or do you want -- 11 MR. HIRSHMAN: Let me get a 12 clarification as to what you want from him. 13 You've asked him to tell you what that he 14 underlined is of significance. 15 MR. TRAVIS: With respect to any 16 opinions he holds against Dr. Kirby concerning 17 the deviation from the standard of care. 18 MR. HIRSHMAN: All right. All right. 19 Do you want to tab these with some of these 20 yellow stickies or -- 21 THE WITNESS: I could. I mean, this 22 is a 90-page, or 85-page deposition, that it's 23 just going to take me -- I have a fair number of 24 underlinings in here. 119 1 MR. HIRSHMAN: I think what John is 2 asking is, a lot of them, and I went through a 3 couple of the depositions, a lot of them you're 4 going to look at and say, okay, that's just for 5 information, that's just for information, that's 6 just for information, this is significant, you 7 know, page 32, that's significant. It's those 8 significant ones that he's looking for. 9 MR. RYMOND: Well, the Doctor's point 10 is he needs to go through all of them to make 11 that determination. The question is, should we 12 go off the record, turn up the air conditioning, 13 cool it down in here, let everyone go the men's 14 room or ladies' room while you're doing that, 15 that to me is the important question, and that's 16 what I propose. 17 MR. TRAVIS: Why don't we take a break 18 while you do that, Doctor. I point out that in 19 your report you only make reference, I think, to 20 one excerpt from his deposition. If there are 21 others that you think are significant regarding 22 the deviation from the standard of care, I'd 23 like to know that. 24 MR. HIRSHMAN: Well, it's going to 120 1 take some time. I'm going to get you a drink 2 while you're doing that. 3 (Short recess taken.) 4 Q. Doctor, you went through Dr. Kirby's 5 deposition, and please indicate to us which 6 areas you've tabbed as being of significance. 7 A. On page 19 I have a tab. Do you want 8 me to read the sentence? 9 Q. You can just summarize it or give me 10 the line numbers. 11 A. At the top of the page it simply 12 states, "So as of the 6th, the swelling was even 13 more extensive than it had been on the first 14 visit?", was the question. "Well, it was in a 15 different area. There was still a little bit on 16 the lingual towards the tongue, as there had 17 been in December, but there was also a little 18 bit towards the cheek," implying that this was 19 an increasing size. And in fact, the answer 20 further on down, line 12, is, "I think it was an 21 abscess that was increasing in size." 22 That's significant to me that this was 23 a lesion that was increasing in size despite 24 treatment with antibiotics, and that the doctor 121 1 had not formulated a differential diagnosis but 2 continued to hold to one diagnosis despite the 3 fact that there was increase in size and not an 4 improvement with antibiotic treatment. 5 Page 21 there was a question, 6 "Abscesses can be caused by pathological 7 entities that underlay those abscesses, can they 8 not?" "Well, yes, they usually are," is the 9 answer. 10 Also, further up on that page it says, 11 "Swelling can be caused by phenomenon other than 12 abscess?" The answer was, "Indeed it can, but 13 in this particular case it was fluctuate." I 14 think he means "fluctuant." "I mean there was 15 fluid in this." He recognizes that there are 16 other -- at this point, anyway, recognizes that 17 there are other entities that can present as an 18 abscess or underlay an abscess that are of not 19 infectious origin. 20 Q. If it's fluctuant, of what 21 significance is that? 22 A. Simply that there may be some fluid or 23 soft tissue. Again, that could be consistent 24 with either an abscess or with a neoplasm. 122 1 Next page says, "Abscesses can be 2 caused by cancer, can it not?" He answers, "Not 3 to my recollection." I think that contradicts 4 the earlier statement that he made in which he 5 states that it's usually an underlying entity 6 that may be other than infection. 7 And I think on page 44, simply more of 8 a fact, in December of 1995, he states, at the 9 bottom, at line 23, "There's infection around or 10 there is pathology around the distal root of 11 that molar. You see the dark area." So that 12 statement almost seems to say that there is 13 infection or there is pathology, recognizing 14 that there could be other possibilities. 15 On page 45, he's asked the question on 16 line 8, "Well, do I see any evidence of" -- no, 17 I'm sorry. He gives the answer, "Well, do I see 18 any evidence of cancer, question mark." And 19 then on line 10 he answers, "I could not make a 20 differential diagnosis based upon an x-ray." I 21 would certainly question that statement in that 22 I think that the x-ray raises a differential 23 diagnosis of infection or malignancy. 24 On page 47, there are a number of 123 1 statements stating, "I do not know the results 2 of the biopsy. I have never had any 3 correspondence." When asked the question, 4 "Nobody has ever told you what the results of 5 that biopsy were?", the answer is, "No." "Did 6 you ever inquire as to who the identity was of 7 that ENT?" "No, I did not." "And you didn't 8 inquire what the results of that biopsy were?" 9 "No, I did not." And so I think that that 10 indicates a lack of desire to communicate or to 11 find out important underlying information about 12 Cathleen's care. 13 And he was asked a question on 14 page 49, "And you never contacted either 15 Dr. Rozman, Dr. Witt or Dr. Katz?" "No, and 16 they never contacted me." Again, I don't think 17 that necessarily -- I do believe that it would 18 be their responsibility to contact him, but I 19 also believe that it would be his responsibility 20 to contact them. 21 On page 41, he was -- 22 MR. HIRSHMAN: 51. 23 A. I'm sorry, 51. Thank you. He was 24 asked the question, "Were any antibiotics 124 1 tried?" He answered, "They were tried early on 2 in the course of treatment back in December 3 without success, indicating that this may well 4 have been something other than an abscess if 5 antibiotics were not helpful, and certainly 6 should have raised the question as to whether 7 some other pathologic diagnosis might have been 8 present." 9 Then he states on page 54, "Cancer was 10 always at the back of my mind with Cathleen, but 11 the acute problems she presented with was 12 foremost in my mind." "Which was in your 13 estimation at that time an abscess in her 14 tooth?" "That's correct." So even though he 15 states in some places that he didn't think of 16 cancer and other places he does, but he didn't 17 do anything to act on that suspicion, if in fact 18 he did have that thought, which was a question I 19 think you had raised earlier. 20 Then on page 57 is the quote that I 21 utilized in my report. "Had I had a copy of the 22 pathology report, I probably would have had her 23 return to her ENT for another biopsy." "And why 24 is that?" "Well, she had already had -- I mean, 125 1 she already has this dysplasia. Now she's got 2 another problem going on. I think you like to 3 have as many people looking at this as you 4 possibly can." I agree with that completely, 5 but I think it contradicts what he actually did 6 in terms of his care of Cathleen. 7 And I think on page 61 he says, "And 8 if you understood that to be Cathleen's 9 condition and further understood her to be under 10 the misapprehension that her biopsy results were 11 normal, you certainly would have done everything 12 in your power to rectify that situation?" "Yes, 13 I would have." "And presumably you would have 14 rectified that situation by making sure that she 15 got back to her ENT?" He answers but he 16 couldn't take the tooth out for her. And 17 essentially he goes on to say that he didn't 18 have information about what the biopsy showed, 19 and I think that would have been easily 20 correctable by contacting Dr. Witt or the 21 hospital and getting that information. But I 22 think the implication of his remarks is that he 23 understands the importance of that diagnosis in 24 terms of necessity for follow-up or further 126 1 evaluation. He simply didn't act on it to 2 obtain the information or to follow up. 3 And then on page 67, he acknowledges 4 with regards to the swelling, "Well, it didn't 5 have the symptoms of an acute infection. It was 6 a chronic infection, which means that the body 7 and the infection are living symbiotically, 8 getting along okay, nobody is winning." Again, 9 I think that the implication should be that 10 other differential diagnoses should be present 11 when something isn't getting better with 12 treatment. 13 I think that's essentially the points 14 that I would consider significant in that 15 deposition. 16 Q. Thank you, Doctor. Have you now 17 stated all the criticisms you have of Dr. Kirby? 18 A. I have, yes. 19 Q. And all the bases for those 20 criticisms? 21 A. Yes. 22 Q. Have you read the Dr. Allen report? 23 A. Yes. 24 Q. Do you recall that Dr. Allen puts the 127 1 doctors into two groups? If you would look at 2 the bottom of page 2 of the Dr. Allen report, 3 please. In the large paragraph that occupies 4 most of the page, it concludes by talking about 5 what he believes are departures from acceptable 6 standards of care by Doctors Whelan, Katz and 7 Witt; do you see that? 8 A. Yes. 9 Q. Right there (indicating). 10 A. Okay, yes. 11 Q. And then in the next paragraph he 12 talks about Dr. Kirby, Synenberg and Callahan, 13 correct? 14 A. Yes. 15 Q. And he concludes that paragraph by 16 talking about, next page, the delay in diagnosis 17 occasioned by the departures from the acceptable 18 standards by Kirby, Synenberg and Callahan 19 worsened Mrs. Lane's prognosis. 20 A. Yes. 21 Q. Do you agree that the doctors are 22 appropriately grouped in these two groups that 23 Dr. Allen has identified here? 24 MR. HIRSHMAN: What are you asking 128 1 him? 2 MR. TRAVIS: If he agrees with 3 Dr. Allen's grouping of Whelan, Katz and Witt in 4 one group and Kirby, Synenberg and Callahan in 5 another. 6 MR. HIRSHMAN: I'm not sure that 7 you've expressed to him what the implications of 8 that grouping are. 9 Q. Do you understand the implications, 10 Doctor? 11 A. I'm not certain that I do. 12 Q. Well, Dr. Allen in his deposition, 13 page 180, said it was probably not cancer and 14 there was an opportunity to control the process 15 before it became cancer with respect to the 16 first group. 17 A. All right. 18 Q. And he distinguishes between the two 19 groups on that basis. Do you agree or disagree 20 with Dr. Allen's grouping? 21 A. Well, I would agree that Doctors 22 Whelan, Katz and Witt saw Mrs. Lane prior to the 23 development of cancer, and that the cancer was 24 present at the time that Doctors Kirby, 129 1 Synenberg and Callahan did see her. 2 Q. Would that not mean then that Doctors 3 Kirby, Synenberg and Callahan had a lesser 4 opportunity to control the cancer? 5 MR. NORCHI: Objection. Go ahead. 6 A. Well, I can't say that it would. 7 Certainly if the cancer weren't present when 8 Doctors Whelan, Katz and Witt saw her, their 9 opportunity would have been either to resect the 10 dysplastic disease or to arrange for careful 11 follow-up. I think it's difficult to compare 12 who has the better chance. Certainly once the 13 cancer has developed the implications of failure 14 to treat it are even more severe. But certainly 15 I think at the time that any of those doctors, 16 that is Kirby, Synenberg or Callahan, saw 17 Mrs. Lane, that the opportunity was still there 18 to control the disease. It's a little like 19 comparing apples and oranges, I guess. I just 20 have a little difficulty making a distinct 21 comparison there. 22 Q. Let's turn to Dr. Hauser's report, if 23 we may, marked as Exhibit F. 24 A. I have it. 130 1 Q. Look at page 3, if you would. The 2 bold paragraph at the bottom beginning, "It is 3 my opinion." 4 A. Yes. 5 MR. NORCHI: Could you tell us which 6 report that is? 7 MR. TRAVIS: Hauser. 8 MR. NORCHI: Hauser. 9 MR. TRAVIS: Marked as Exhibit F. 10 MR. NORCHI: Okay. 11 Q. Dr. Hauser opines that Dr. Kirby would 12 have no reason not to believe Mrs. Lane's 13 statement, do you agree, disagree, or have no 14 opinion with respect to that? 15 A. I would agree that Dr. Kirby would 16 have no reason not to believe Mrs. Lane's 17 statement, in that certainly Mrs. Lane would not 18 be purposely trying to mislead him in any way. 19 I just think that, as we discussed previously, 20 Dr. Kirby had the requirement to look further 21 into the exact meaning of the word "negative" 22 that was utilized and to obtain the findings of 23 the pathology report. 24 Q. He goes on to say that swelling in the 131 1 gingiva adjacent to teeth is almost always 2 related to a dental abscess or periodontal 3 abscess; do you agree? 4 A. Certainly I think in -- with all 5 swellings that would go through the door of a 6 dentist, most of those are going to be related, 7 many more, to dental abscess or periodontal 8 abscess as opposed to cancer, but certainly that 9 doesn't imply that cancer can't give that type 10 of presentation. 11 Q. It talks about a root canal on 19 and 12 deep filling in 20, each of the teeth is at risk 13 for abscess, do you agree? 14 A. That would be a possibility, yes. 15 Q. Turning to the top of page 4, 16 "Mrs. Lane's presentation clinically would not 17 be consistent with the general presentation of 18 oral cancer. Oral cancer usually appears as an 19 angry ulcerative lesion with rolled margins"; 20 agree, disagree or no opinion? 21 A. I would disagree. 22 Q. And why do you disagree? 23 A. Well, because oral cancer can present 24 in many different -- with many different 132 1 appearances, and I believe that Mrs. Lane's 2 lesion certainly was consistent with oral 3 cancer, and in fact proved to be oral cancer. 4 And although oral cancer at times can be an 5 angry ulcerative lesion with rolled margins, it 6 certainly does not always have to be that way. 7 Q. Turning to page 5. At the bottom, 8 "Dr. Kirby made timely and appropriate referrals 9 to dental specialists in order to treat these 10 teeth," do you agree? 11 A. Yes, I would agree that he made 12 appropriate referrals. 13 Q. He goes on to say -- 14 A. Let me -- 15 Q. Are you done? I'm sorry. 16 A. I'm sorry. I'm just thinking about my 17 answer. I think that he made appropriate 18 referrals, but in terms of asking for help from 19 other physicians. But I think if he were to 20 make dental decisions, that is this patient 21 needs a root canal or this patients need an 22 extraction, that part, dictating care certainly 23 without having full knowledge of the pathology, 24 would not be appropriate. 133 1 Q. He goes on to say, "I would not expect 2 Dr. Kirby, a general dentist, to arrive at a 3 clinical diagnosis of cancer that 2 highly 4 reputed dental specialists did not"; do you 5 agree, disagree or no opinion? 6 A. I would disagree. 7 Q. And why do you disagree? 8 A. Well, I -- I think highly reputed has 9 nothing to do with whether they would be able 10 to -- the dental specialists would be able to 11 arrive at a diagnosis or not. Apparently they 12 didn't. And I see no reason -- general dentists 13 arrive at clinical diagnoses of cancer all the 14 time, it's very frequent, and I think it's a -- 15 that it would be an expectation that you would 16 be able to do that. 17 Q. Is all the treatment the Plaintiff has 18 received necessary? 19 A. I don't think that -- I couldn't 20 comment about the root canal on tooth number 20, 21 but I think that the rest of the -- and the 22 attempted root canal on tooth number 19, but I 23 think that the rest of the treatment that she 24 received would be considered necessary. 134 1 Q. What further surgery is indicated in 2 this patient? 3 A. What further surgery is indicated? 4 Q. Reconstructive-type surgery. 5 A. When we say indicated, I think that 6 it's an option that could be offered to her, and 7 I understand that she is having some 8 reconstruction of her jaw in hopes that she'll 9 be able to have a denture implanted or affixed 10 to her mandible so that she'll be able to eat 11 solid food. 12 Q. And certainly the state of medical 13 science is such that a procedure like that can 14 be done? 15 A. Well, certainly procedures like that 16 can be done. I think that the results will be 17 somewhat limited in terms of restoring her to 18 any semblance of her normal situation, but 19 procedures can be attempted, yes. 20 Q. You would expect that after a 21 procedure or procedures her appearance would 22 improve? 23 A. I would hope that would be the case, 24 but it may or may not. 135 1 Q. Do you have an opinion based on 2 reasonable medical probability as to whether her 3 appearance will improve if she has 4 reconstructive surgery? 5 A. I think with every surgery there's 6 certainly a downside with more scarring and 7 perhaps more lumpiness. Hopefully with 8 insertion of dentition so that that would 9 improve the appearance of her mouth and smile, 10 that may make some improvement. I think that's 11 a difficult question. Certainly appearance is a 12 very subjective judgment, and what might be an 13 improvement in one way may be a detraction in 14 another. In other words, some of the surgery 15 may create scarring that would be a detraction, 16 but some improvements may occur. 17 Q. Would you expect that future 18 reconstructive surgery would improve her speech? 19 A. I would not expect very much 20 improvement in that. 21 Q. Why? Cause of the tongue? 22 A. She's had a significant resection of 23 her tongue. The mobility of her mouth and 24 mandible is going to be compromised, and I don't 136 1 think can be significantly improved. I don't 2 think there will be much change over her current 3 situation. 4 Q. Her ability to eat foods normally 5 through the mouth would be expected to improve 6 following reconstructive surgery? 7 A. Well, if she's able to have teeth 8 inserted, she may be able to chew more solid 9 food. Again, tongue function and function of 10 the muscles of her mouth I don't think will 11 improve significantly. She may have -- I will 12 try to be as far as I can about it. With her 13 ability to chew, she may be able to expand her 14 diet a little bit, but I wouldn't expect a major 15 improvement. 16 Q. Is the Plaintiff fatigued currently? 17 A. My understanding is that she is. 18 Q. Why is she fatigued? 19 A. Well, I think that she's fatigued in 20 part because of the daily regimen that's 21 required for her to survive each day. Her 22 feedings are prolonged. She's required to do 23 exercises. There are a whole number of 24 time-consuming activities that she has to go 137 1 through each day. Her nutrition may be a 2 problem. I think that inability to consume 3 adequate calories may lead to some fatigue. And 4 my understanding is -- I don't have it 5 documented, but my understanding is that she now 6 has a possible anemia which may be perhaps 7 nutritionally related. And when anemia is 8 present, fatigue is part of that. 9 Q. If she has reconstructive surgery that 10 allows her to chew more food through her mouth, 11 many of these factors causing fatigue would be 12 absent, correct? 13 A. It would depend on the success of the 14 surgery. My own prediction would be that she's 15 not going to -- unfortunately she's not going to 16 have a major improvement in her ability to eat 17 and to swallow despite these numerous surgeries, 18 that would be my prediction. For her sake, I 19 hope that I'm incorrect about that. And if I 20 am, then she may have some improvement, but I'm 21 doubtful that that's going to occur. 22 Q. Do you have any prognosis then for the 23 fatigue? 24 A. I think that it's going to be -- 138 1 remain quite the same as it is. 2 Q. Do you have any criticism of the 3 nondefendants who treated the Plaintiff after 4 the cancer was diagnosed? 5 A. I'm not certain I know who the 6 nondefendants are. Are you talking about 7 Dr. Stepnick, for instance? 8 Q. Dr. Goldberg, Dr. Silverman. 9 A. I don't. 10 Q. Do you recall that Dr. Silverman saw 11 the Plaintiff on April 16th, 1996? 12 A. Yes. 13 Q. Do you recall her indicating there 14 does not appear to be a recurrence of her 15 squamous cell carcinoma, although we cannot 16 exclude a new occurrence either in the gum or in 17 the tongue tissue? 18 A. Yes. 19 Q. Do you know that she's an oncologist? 20 A. Yes. 21 Q. Do you know also that she found no 22 obvious abnormalities of the floor of the mouth 23 or the palate? 24 MR. HIRSHMAN: Why don't you read the 139 1 whole thing if you're going to do that rather 2 than picking and choosing, including the 3 comments she makes about the leukoplakia which 4 was noted to be on the left side of the palate. 5 MR. NORCHI: Can you speak up, please. 6 MR. HIRSHMAN: I simply asked him to 7 not quote selectively from Dr. Silverman's or -- 8 Silverman, is it? Silverman's report. 9 Q. Do you have the report there, Doctor? 10 A. That's the one that's dated 4/16/96? 11 Q. Correct. 12 A. Yes, I do. 13 Q. She did not diagnose carcinoma at this 14 time, did she? 15 A. She did not, no. 16 Q. Does that not suggest that this was a 17 difficult case to diagnose? 18 MR. HIRSHMAN: Take your time and look 19 at the report for as long as you need. 20 A. Well, I think essentially what she's 21 saying is that there is the potential for that, 22 but she did not at that time herself make a 23 diagnosis of squamous cell cancer, though she 24 did state that she could not exclude it. 140 1 Q. **Is it true that it is difficult to 2 establish a diagnosis of cancer in tissue that 3 has been previously and permanently altered by 4 radiation therapy? 5 A. I'm sorry, what was that question? 6 MR. TRAVIS: Would you read it back, 7 please. 8 (**The preceding question was read.) 9 A. Not ordinarily. I think that with 10 biopsies taken in that tissue that tumor cells 11 can be seen. I haven't -- I'm not aware that 12 that is -- provides a major difficulty. 13 Q. What effects do radiation therapy have 14 on tissue adjacent to a cancerous lesion? 15 A. It produces scarring ordinarily. 16 Q. Are you saying it's as easy to find 17 abnormalities in a patient who's never had 18 radiation therapy as opposed to a patient who 19 has? 20 A. Well, I'm -- I was speaking more to 21 the appearance under a microscope. I think that 22 certainly with radiation therapy there may be 23 scarring in tissues that may make obtaining 24 tissue a little more difficult, may make 141 1 physical examination a little more difficult, 2 but it should heighten awareness in that 3 situation. 4 Q. Do you intend to do anything further 5 in this case, Doctor? 6 A. Do I intend to do anything further? 7 MR. HIRSHMAN: Whether he does or not, 8 I reserve the right to confer with him and 9 decide on how we're going to present this case 10 to a jury. So you can ask him that question, 11 but it's not going to preclude me from 12 conferring with him. 13 A. I think my answer to that would be I 14 will do what I'm asked to do with respect to 15 reviewing further records or rendering further 16 opinions or testifying as need be. 17 Q. Do you have in mind any exhibits or 18 visuals that you will use at trial? 19 A. I do not myself have in mind any 20 specific ones at this time, but I have not at 21 this point begun a distinct preparation for 22 trial. 23 Q. Do you intend to come to Ohio to 24 testify in this case? 142 1 A. If I'm asked to do so, I will. 2 Q. That's all I have. Thank you very 3 much, Doctor. 4 A. Thank you. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 143 1 EXAMINATION 2 BY MR. HATCHADORIAN: 3 Q. My name is Matt Hatchadorian, Doctor. 4 I represent Dr. Whelan. Is it true that you do 5 not hold yourself out as an expert on family 6 dentistry? 7 A. Well, I think as I answered that 8 question before, I certainly would not consider 9 myself to be an expert in general dentistry, 10 especially with respect to dental restorations, 11 filling cavities, but I think that I can 12 render -- I feel comfortable rendering an 13 opinion regarding observations of oral cavity 14 cancers and what is required of that by any 15 specialist who undertakes to examine patients in 16 that area or to deal with those diseases. 17 Q. Well, regarding evaluation of that 18 condition you just referred to, do you believe a 19 general family dentist is qualified to testify 20 about the standard of care for someone in your 21 profession? 22 A. I don't know the answer to that. I'm 23 sorry. 24 Q. Cathleen Lane had cancer in 1982 144 1 followed by surgery and treatment. Would you 2 anticipate that she would have had disfigurement 3 or disability after that surgery back in the 4 early eighties? 5 A. That surgery -- 6 Q. I'm talking about her mouth and her 7 jaw. 8 A. Yeah. She would have had some 9 disfigurement in that she had removal of the 10 lymph nodes in her neck which would produce a 11 depression there. She didn't have any removal 12 of jaw tissue at that time. She did have 13 removal of some tongue tissue at that time, but 14 my understanding was she did not have 15 significant disability following that. 16 Q. You've never seen Cathleen, right? 17 A. Correct. 18 Q. So your answer is based on the 19 documentation that you reviewed? 20 A. Yes. 21 Q. Do you think that this first cancer in 22 the early eighties and the subsequent treatment 23 has any effect on her prognosis after the second 24 cancer? What I'm meaning is, do you think her 145 1 condition is either better or worse as opposed 2 to somebody who hadn't had cancer before? 3 A. Well, I think the fact that she has 4 developed two cancers would put her at a higher 5 risk for development of a third than someone who 6 only had one. 7 Q. Do you think that her -- the surgeries 8 that she had to undergo and the treatment she 9 had to undergo after the second were impacted by 10 the first, the fact that she had cancer before? 11 A. No. In other words, if I'm 12 understanding your question, do I think that 13 they had to alter those in some way or extend 14 them in some way as -- 15 Q. Would her treatment have been better 16 or worse if she hadn't had the cancer before? 17 A. My opinion is that her treatment would 18 have been the same whether she had the cancer 19 before. 20 Q. Am I correct that it's your opinion 21 that the first and second cancer are separate, 22 unrelated events? 23 A. They were -- to the extent that they 24 were different primaries and not the same tumor, 146 1 yes. I think that the underlying problem that 2 she has is essentially an immunologic one in 3 which she has an inability to -- her immune 4 system does not destroy abnormal cells in her 5 oral cavity, so I think there is that basic 6 underlying problem that she has. But the two 7 tumors themselves are not related to each other 8 in my opinion. 9 Q. Is the immunological problem, is that 10 congenital? 11 A. Congenital meaning was she born with 12 it or hereditary, do you mean? 13 Q. Yes. 14 A. Not to my knowledge. 15 Q. Do you have an opinion as to whether 16 the second cancer was a recurrence of the first 17 cancer? 18 A. My opinion is that the second cancer 19 was not a recurrence but was a separate tumor. 20 Q. I'm going to ask you some questions 21 about Dr. Whelan's involvement in this matter. 22 It's undisputed in this matter -- I'm 23 just saying this to refresh your memory, that 24 Dr. Whelan retired August 1st of '95, that he 147 1 last saw Cathleen in July of '95, and that was 2 for an inlaid tooth, not for an oral exam -- 3 A. Yes. 4 Q. -- and that the last time he saw her 5 for an oral exam was in May of '95; do you 6 remember that? 7 A. Yes. 8 Q. Now, I want to inquire as to whether 9 or not you believe Dr. Whelan's treatment of 10 Cathleen deviated from the standard of care. 11 In your report on page 6, you indicate 12 that you had two opinions in this matter. In 13 the interest of saving time, do you still hold 14 those opinions? 15 A. Yes. 16 Q. One is you indicated you were critical 17 of him for failure to recommend a biopsy of the 18 lesion near tooth 19; do you still hold that 19 opinion? 20 A. I do, yes. 21 Q. And the second criticism is the 22 failure to call the lesion to the attention of 23 Dr. Katz; do you still hold to that opinion? 24 A. Yes. 148 1 Q. Are those the only two criticisms you 2 have of Dr. Whelan? 3 A. Yes. 4 Q. Before we get into the -- I want to 5 talk a little bit about the failure to call the 6 lesion to the attention of Dr. Katz for a 7 minute. Dr. Katz did a biopsy at the request of 8 Dr. Whelan back in June of '94. 9 A. On the tongue, yes. 10 Q. Yes. And what specifically would you 11 believe the standard of care required as far as 12 your criticism for failure to call the lesion to 13 the attention of Dr. Katz. Are you talking 14 about he should have picked up the telephone and 15 just told Dr. Katz? 16 A. I think that that would have been one 17 way to do it, or the other would have been to 18 refer Cathleen back to Dr. Katz with a letter or 19 with the instructions that there was a white 20 lesion near tooth 19 and that he would request 21 biopsy of that. 22 Q. Okay. And this is going back to 23 February of '95? 24 A. Yes. 149 1 Q. I have some questions I want to ask 2 you about Dr. Whelan's deposition that you 3 underlined. This is at page 12 of the condensed 4 deposition transcript. They're talking about 5 February of '95 and about the -- why he did not 6 do a biopsy of the area around tooth number 19. 7 And Mr. Hirshman asks Dr. Whelan, "Can you tell 8 me why you didn't?" And his answer is, "Because 9 there was an inflammation more than a problem of 10 growth, and those, as I say, usually go away in 11 ten days, two weeks, that would be the type of 12 thing that she would be conscious of and tell 13 us." And you underline that in your reviewing 14 of the deposition, is that true? 15 A. Yes. 16 Q. And then later on along the same line 17 of questioning, Dr. Whelan answers, "I wouldn't 18 know the answer to that. Apparently it didn't 19 lure me as far as the appearance goes." 20 MR. HIRSHMAN: I'm not sure that we 21 can understand that without knowing what came in 22 between. 23 Q. Well, the question was, "Are you in a 24 position to tell me what your decision-making 150 1 process was in deciding not to do a biopsy in 2 light of the fact that you had done one back in 3 June of '94?", that was the question. His 4 answer was, "I wouldn't know the answer to that. 5 Apparently it didn't lure me as far as the 6 appearance goes," and you underlined that. 7 A. Yes. 8 Q. So it's fair to say that based on the 9 answers that Dr. Whelan gave in his deposition, 10 he didn't think that the way this appeared that 11 it was a lesion; would you agree with that? 12 A. Well, he didn't think it was a 13 malignant lesion, I assume is what he's saying. 14 A lesion is any abnormality. But I think he's 15 saying he was not impressed with the appearance 16 of it at that time. 17 Q. Right. Did you take that into 18 consideration when you were arriving at your 19 opinions in this matter, the fact that you 20 underlined those answers? 21 MR. HIRSHMAN: He's the one who 22 underline it. 23 MR. HATCHADORIAN: Right. 24 A. That's why I underlined it, yes, to 151 1 take it into consideration. 2 Q. Do you think that if he believed that 3 the appearance was such that he didn't feel it 4 warranted a biopsy, would it be consistent, 5 reasonable procedure to take a period of 6 watchful waiting, if he didn't believe it was a 7 lesion? 8 A. Well, I think in a patient such as 9 this, that is a woman who had had previous 10 cancer and had developed other lesions, that 11 that lesion should have been biopsied. Now, I 12 do grant and understand that on some occasions a 13 lesion may have such a benign appearance that 14 the physician makes the clinical judgment that 15 it doesn't require a biopsy. And if that's the 16 case, then I think that careful follow-up by 17 that physician should either be carried out 18 personally or be arranged. So to answer your 19 question, I can understand that he may defer a 20 biopsy for a time, but also state that if the 21 lesion persists, or if it changes in any way or 22 enlarges, that that would be a requirement. So, 23 yes, I think that watchful waiting and careful 24 observation can be carried out for some of these 152 1 lesions. 2 Q. Okay. Do you know whether the tip of 3 Cathleen's tongue was ever found to be involved 4 in her cancer? 5 A. My understanding was that it was not. 6 Q. I think you were asked earlier as to 7 your opinion as to what a biopsy taken in 8 February of 1995 would have shown? 9 A. Yes. 10 Q. You felt, I believe I'm stating this 11 correctly, that it would have shown dysplasia? 12 A. Yes. 13 Q. Now, we know that in June of '94 that 14 a biopsy was taken and it was benign, and we 15 know that in October of '95 a biopsy was taken 16 and it indicated the dysplasia. 17 MR. HIRSHMAN: Wait a minute, June of 18 '94? 19 MR. HATCHADORIAN: Yes, and October of 20 '95. 21 MR. HIRSHMAN: Well -- all right, ask 22 the question. 23 Q. And my question is, this period that 24 we're talking about, February, falls smack in 153 1 between, between the period of time where we 2 know that there was a benign biopsy on the one 3 hand and a positive biopsy on the other. 4 A. Yes, I think those biopsies were taken 5 from different locations, is my understanding, 6 one from the tip of the tongue, a red lesion in 7 June of 1994 by Dr. Katz. And then the second 8 lesion was taken, as you say, by Dr. Witt in 9 October of '95 in the left lower mouth, and that 10 showed severe dysplasia. The lesion that 11 Dr. Whelan was watching in February of '95 was 12 not on the tip of the tongue but was in the left 13 floor of the mouth, and that is the lesion that 14 eventually proved on biopsy to reveal severe 15 dysplasia. But you're right, there were two 16 biopsies, but they were just in different 17 places. 18 Q. Okay. Why do you believe that a 19 biopsy in February would have indicated 20 dysplasia, how can you say that? 21 A. Because the description of the lesion 22 in February of '95 was similar to that in 23 October of 1995, and the biopsy was taken from 24 the same place, and thus it's my opinion that 154 1 more likely than not that biopsy would have 2 revealed dysplasia. 3 Q. Description by whom? You said 4 "description of the lesion," what are you 5 referring to? 6 A. Well, the description I think by -- my 7 recollection is by Dr. Whelan in February of 8 1995 and then by Dr. Witt -- 9 Q. Dr. Whelan didn't -- I'm sorry. Go 10 ahead. 11 A. Dr. Witt in October of 1995. 12 MR. HIRSHMAN: Whelan in February and 13 Witt in October, that's what you're saying. 14 Q. But Whelan didn't describe it. He 15 didn't think it was a lesion. 16 MR. HIRSHMAN: He described it. 17 A. Could I just look back at my report? 18 Q. Sure, take a moment. 19 A. I'm sorry. Reading from my report 20 which I believe was taken from Dr. -- 21 Q. Whelan's records. 22 A. -- Whelan's records, "On a visit of 23 2/20/95, Dr. Whelan noted 'tip of tongue red, 24 bleeds easily. 4 millimeter raised white 155 1 portion also at area around number 19,'" and 2 thus I think that raised white portion -- the 3 word lesion would refer to any abnormal 4 appearing tissue. I don't think he used the 5 word lesion. But in medical terminology, a 6 lesion is any abnormal tissue, and therefore the 7 raised white portion that he describes would in 8 my opinion represent a lesion. 9 Q. Are you aware that Dr. Whelan didn't 10 write that in the notes, but that the 11 assistant -- I can't think of the name of the -- 12 not a paralegal, but the person in the office 13 that assists him wrote the note. 14 MR. HULME: Like a dental assistant? 15 MR. HATCHADORIAN: Dental assistant. 16 Thank you. 17 A. I wasn't aware of that. 18 Q. Okay. If in fact that was true, would 19 that influence your opinion, that he didn't 20 write that down? 21 A. Well, I think obviously if he had 22 never seen the lesion, and if he were not aware 23 of it, then I couldn't expect him to care for 24 it. But I think that I'd have to leave it to 156 1 decide what he knew -- for others to decide what 2 he knew when. But if he did know that that 3 lesion were present, or if he had read that 4 note, then I think that my criticism would 5 stand. But if he -- again, it would depend on 6 what he knew. 7 Q. Okay. And in those sections that we 8 read earlier, it's clear from his testimony that 9 in his clinical judgment it didn't appear 10 serious enough, whatever you want to call this, 11 to warrant a biopsy? 12 A. Yes. That would imply that he knew 13 about the lesion whether he wrote it or not. In 14 his deposition he talks about having seen it, so 15 he knew that it was there. Again, I think the 16 important point is that if a lesion such as that 17 is present, it needs to be -- if a clinical 18 judgment is made that it doesn't require biopsy, 19 and I might disagree with that based on a 20 patient with this history, but I have to defer 21 to his judgment in that particular situation, I 22 think at the very least he had to arrange to 23 follow the lesion carefully or to arrange for it 24 to be followed. 157 1 Q. If a biopsy had been done and in your 2 opinion it would have showed dysplasia, would 3 the dysplasia in your opinion have been severe 4 or moderate or mild? 5 A. In February of 1995? 6 Q. Yes. 7 A. I don't know. 8 Q. If you assume that the dysplasia was 9 severe and the standard of care would have been 10 removal, could the standard of care for mild or 11 moderate dysplasia have been the watch and wait? 12 A. Again, I think that that would be a 13 reasonable approach, if it were mild to moderate 14 dysplasia, if it were carefully watched. 15 Q. Do you have any opinion today as we 16 sit here as to the chance of Cathleen being 17 cured of this disease? 18 A. So I understand that question, do I 19 have the opinion that she may have been cured by 20 this disease -- 21 Q. That she's cured of it and she's not 22 going to have any more cancer problems. 23 A. I think that she has a 41 percent 24 chance or 40 percent chance of being cured of 158 1 this disease, and I would agree that it's 2 encouraging that she is three and one-half years 3 from the time of her treatment and that she -- 4 and that the potential is there that she be 5 cured. I think that there is a high likelihood 6 that she will develop other cancers and that she 7 will need to be observed carefully. 8 Q. You feel there's a high likelihood 9 that she will develop other cancers? 10 A. That she may develop other primary 11 tumors, yes. 12 Q. In her mouth? 13 A. Yes. 14 Q. Do you feel Cathleen Lane has a 15 decreased life expectancy? 16 A. As opposed to a person of her age who 17 did not have this trouble. 18 Q. Yes. 19 A. Yes. 20 Q. That's all I've got, Doctor. Thank 21 you. 22 23 24 159 1 EXAMINATION 2 BY MR. RYMOND: 3 Q. Dr. Bogdasarian, my name is Rick 4 Rymond. I represent Dr. Callahan. I want to 5 follow up on a few questions that 6 Mr. Hatchadorian just asked. 7 You've indicated that Cathleen Lane is 8 at increased risk of developing new primary 9 cancers. So that we're clear on this, should 10 she develop new primary cancers, you would not 11 attribute that phenomenon to any wrongdoing of 12 any of the Defendants in this lawsuit, would 13 you? 14 A. I would not, that's correct. 15 Q. All right. And you've also indicated 16 that she may have a diminished life expectancy 17 due to new primary cancers. If in fact she 18 develops a new primary cancer which in turn 19 shortens her life, you would not attribute that 20 diminished life expectancy to any wrongdoing of 21 any of the Defendants in this lawsuit, would 22 you? 23 A. Well, I want to be clear on that 24 answer. I'm sorry. That would be one reason 160 1 for her to have a diminished life expectancy, 2 but the other would be that she was allowed to 3 progress from a lower stage to a higher stage of 4 cancer, which put her in a group which overall 5 has a lower life expectancy from the tumor that 6 we've been discussing -- 7 Q. Okay. 8 A. -- and I believe that she still 9 carries the threat of a diminished life 10 expectancy based on the care that she had. 11 Q. Based on going from a Stage I to a 12 Stage III? 13 A. Correct. 14 Q. However, that diminished life 15 expectancy expires should she make it five 16 years, correct? 17 A. We talked about five-year survivals 18 and five-year cures. I would have to agree to 19 that. 20 Q. All right. Now, I want to get back to 21 some questions that Mr. Travis asked you. 22 You seemed still pretty well stuck on 23 her five-year survival rate being at 41 percent. 24 That's your testimony, correct? 161 1 A. Yes. 2 Q. However, you concede that 70 to 80 3 percent of recurrences which occur within five 4 years in fact will occur within three years, is 5 that correct? 6 A. Yes. 7 Q. Then can't we say that the inverse has 8 to be true, that no more than 20 to 30 percent 9 of five-year recurrences will occur in the last 10 two years of the five-year anniversary from the 11 date of diagnosis? 12 A. You can say that, I think. But 13 she, by virtue of going from Stage I or II to 14 Stage III, joined a group of individuals that 15 have overall a 41 percent five-year survival 16 rate, meaning that 41 percent or 40 percent, 17 let's say, of those people will survive five 18 years. 19 The fact that she has gone three and 20 one-half years without recurrence of disease 21 puts her in a greater likelihood certainly of 22 being in that 40 percent than those who have 23 developed recurrences or who have died, but she 24 continues to be in that group, and continues 162 1 until she gets to a five-year period -- we're 2 not talking about three-year survivals. We're 3 talking about five-year survivals, and five 4 years is five years. She hasn't got to five 5 years yet, so she continues to be in that group. 6 Q. You have a background in math and 7 statistics, don't you, Doctor, some training in 8 medical school? 9 A. It wasn't my favor subject, but I was 10 forced to do that, yes. 11 Q. I'm beginning to understand. On 12 May 2, 1996, she had a 41 percent five-year 13 survival rate, correct? 14 A. Yes. 15 Q. Three and a half years later without 16 any evidence of new disease, her five -- the 17 likelihood of her living five years is greater 18 than 41 percent, five years from May 2, 1996, 19 isn't that correct? 20 A. I think you're going beyond my 21 mathematical abilities, especially at this hour. 22 Q. Okay. If you don't feel, I mean, 23 competent or qualified to address that question, 24 that's fine. 163 1 MR. HIRSHMAN: He's competent and 2 qualified to answer the question, and he will. 3 A. The way I understand these statistics 4 is that she joins a group of patients for every 5 hundred of those patients 60 of them will die 6 and 40 of them will live five years. And until 7 that five-year period is up, I can't tell you 8 which group she will be in. The writing is on 9 the wall for her, and I can simply say that she 10 has written into 60-percent likelihood of dying 11 or 40 percent of surviving, and until the five 12 years go by I can't tell you which group she's 13 in. 14 Q. So after 4 years 363 days, assuming no 15 recurrence, she still has a 40 -- I'm sorry -- a 16 59-percent chance of dying in the next two days, 17 is that your testimony? 18 A. Well, my testimony is that she -- no, 19 I didn't say that I don't think. Maybe I did. 20 But what I meant to say is she's in a group -- I 21 mean, the way I look at it is until five years 22 is up or completed that she's in a group where 23 she has a 40-percent chance of living and a 24 60-percent chance of dying. With two days to 164 1 go, certainly it would seem that she would be 2 very close to making it, or surviving. But my 3 understanding of the numbers is that that's what 4 she's in until that five years goes by. 5 Q. You don't think there can be any 6 reevaluation of those numbers then as times goes 7 by, as she works her way into that five years, 8 is that correct? 9 A. It may be that there can be, but I'm 10 simply -- I'm not in a position to do that, and 11 my understanding of the problem is based on her 12 chances of survival from the beginning. 13 Q. Okay. I want to get back to your 14 earlier testimony about her having a prior 15 history of oral cancer. 16 You I think indicated that she had an 17 increased likelihood of a second primary cancer 18 somewhere in the range of 4 to 7 percent if she 19 had been a smoker, did I understand that 20 correctly? Have I expressed it in a way that 21 makes sense? 22 A. Well, I think what I meant to say is 23 that in head and neck cancer patients generally, 24 and I think the studies were based on 165 1 populations of smokers and alcohol drinkers, 2 that there was a 4- to 7-percent chance of 3 having a simultaneous tumor at the time the 4 initial tumor was diagnosed, and about a 15- to 5 20-percent chance that eventually a patient like 6 that would develop at some point a second 7 primary tumor. 8 Q. Are there any such studies that you're 9 aware of for nonsmokers, just for nonsmokers? 10 A. Not that I could quote you offhand. I 11 think there are studies, but I couldn't quote 12 you one offhand. 13 Q. You've indicated that -- do you know 14 if Cathleen Lane is a drinker, by the way, or 15 would qualify as a drinker under the statistics 16 you've explained? 17 A. My understanding is that she was not a 18 heavy alcoholic drinker. 19 Q. You indicated earlier that 90 percent 20 of squamous cell carcinoma cancer patients are 21 drinkers, would she be characterized as a 22 drinker given her level of alcohol intake? 23 A. I would think not. 24 Q. Do you know what percentage of 166 1 squamous cell carcinoma patients are neither 2 smokers nor drinkers? 3 A. A small percentage. I would estimate 4 in the range of less than 5 percent of those 5 patients. 6 Q. And there are no independent 7 statistics for those people that you're aware of 8 concerning the likelihood of developing a second 9 or third primary cancer, correct? 10 A. The teaching that I had and readings 11 that I've done, but I can't quote independent 12 studies, is that these patients do have a higher 13 incidence of developing second tumors as well. 14 Q. Do you have an opinion to a reasonable 15 degree of medical probability as to the date on 16 which Cathleen Lane's need for a marginal 17 resection became a need for a segmental 18 resection? 19 A. It's my opinion that in December of 20 1995, at the time that she had seen Dr. Kirby 21 and had her wing-bite x-ray that a marginal 22 resection would have been appropriate and 23 adequate for her treatment. I believe that that 24 would have been the case as well into April of 167 1 1996 -- I'm sorry. Yeah, I think that that 2 would have been true into April of 1996, at 3 which point the tumor became large enough that 4 she required a segmental resection. 5 Q. How often do you perform segmental 6 resections? 7 A. A couple of times a year. 8 Q. What is the basis for your opinion 9 that the patient could have been treated with a 10 marginal resection I guess through March? 11 A. Again, that would relate to the growth 12 rates that we've projected for this patient and 13 descriptions of -- well, I'll leave it at that. 14 Q. Pardon? 15 A. Growth-rate projections for the tumor 16 and staging projections. 17 Q. What is your understanding as to the 18 date on which Dr. Callahan referred this patient 19 to other healthcare providers? 20 A. I believe that it was in mid-April 21 1996. 22 Q. Is your opinion that this patient's 23 need for a marginal resection transformed into a 24 need for a segmental resection when the cancer 168 1 went from Stage II to Stage III? 2 A. Yes. 3 Q. Can we agree that this patient 4 probably had a Stage-II carcinoma on the date 5 that Dr. Callahan referred the patient to other 6 healthcare providers based upon your doubling 7 times? 8 A. Are you talking about his referral to 9 Dr. Silverman at this point? 10 Q. Sure. Middle of April. 11 A. Well, Dr. Callahan believes, I think, 12 and his deposition stated that the tumor 13 appeared to be growing quite rapidly, and I 14 think that it was -- I think that probably at 15 the time that the patient got to Dr. Silverman 16 that this tumor was to the extent that the 17 resection was going to be necessary. 18 Q. Do you agree with Dr. Callahan that 19 this tumor grew quite rapidly shortly prior to 20 the resection, in the weeks leading up to the 21 surgery? 22 A. Well, I think that this was a rapidly 23 growing tumor, but I don't think that it was 24 growing with the rapidity that Dr. Callahan -- 169 1 with quite the rapidity that Dr. Callahan had 2 stated. 3 Q. You indicated that your opinion that 4 the tumor was Stage I or Stage II in December of 5 1995 was based in part on the fact that there 6 were no descriptions of anything larger that 7 would reach the size, I guess, of a Stage-III 8 tumor, is my understanding essentially correct? 9 A. Yes. 10 Q. If the -- you also believed, by the 11 way, that by December of 1995 the cancer had 12 invaded bone, correct? 13 A. Yes. 14 Q. If the cancer had invaded bone, would 15 we necessarily see physically, or would the 16 patient have necessarily been aware of a growth 17 or swelling or other abnormality which would 18 coincide with the actual size of the tumor? 19 A. If I understood the question 20 correctly, a five-centimeter tumor, for 21 instance, would be larger than a walnut, and 22 it's my opinion that the healthcare providers 23 and the patient would have seen that in December 24 of 1995. 170 1 Q. You think that would be readily 2 apparent clinically, I take it? 3 A. I would expect that it would be, yes. 4 Q. You believe that any dentist or oral 5 surgeon examining a patient with a 6 five-centimeter tumor would be able to make the 7 diagnosis based upon a clinical exam knowing 8 about the patient's history, I take it? 9 A. Well, I believe that -- I'll say this, 10 that a five-centimeter swelling should be 11 apparent, and making the diagnosis would require 12 further evaluations. 13 Q. What is your explanation as to why it 14 is that Dr. Silverman thought that there was not 15 a tumor at the time of the referral from 16 Dr. Callahan in spite of the fact that she was 17 aware of the patient's history and had available 18 to her -- I presume had available to her -- 19 radiographs? Do you have an explanation for 20 that? 21 A. I don't. 22 Q. Does that fact not suggest that indeed 23 this tumor grew with great rapidity after the 24 referral to Dr. Silverman and prior to the 171 1 surgery some two, two and a half weeks later? 2 A. I would recognize that possibility, 3 but I would also recognize the possibility that 4 Dr. Silverman may not have the expertise to have 5 made the diagnosis of this tumor. I simply have 6 to answer I don't know why she didn't make the 7 diagnosis at that time. 8 Q. When the tumor was measured, it was 9 intraoperatively at five centimeters, correct? 10 A. Yes. 11 Q. You would concede that this 12 patient -- I'm sorry -- that this tumor was 13 growing with rapidity in the weeks prior to the 14 surgery, correct? 15 A. Well, I think we've talked about what 16 we, or I've talked about what I think the growth 17 rates were. 18 Q. Well, you've given a range of 15 to 30 19 days for doubling. 20 A. Yes. 21 Q. If we go back -- 22 A. I'm sorry. 5 to 15 days for 23 doubling -- 5 to 12 days for doubling, and 24 therefore 15 to 35 days, let's say, for doubling 172 1 in size. 2 Q. Okay. If we -- based upon what you 3 know, is it reasonable to conclude that in all 4 likelihood this tumor was growing double in size 5 at something closer to the every 15 days in the 6 weeks immediately prior to diagnosis? 7 A. Well, I think I'd have to stay with 8 the range that I gave. 9 Q. I'm willing to stay with that range as 10 well. Can we agree that it would be closer to 11 15 days than the 30 days that you previously 12 gave or the 35 days that you're not suggesting? 13 MR. HIRSHMAN: Well, he's saying the 14 same thing. He's not changing the numbers. 15 He's talking about doubling times versus 16 diameter times. 17 MR. RYMOND: No, we're on the same 18 page, Toby. We are on exactly the same page. 19 MR. HIRSHMAN: I don't think you are. 20 Go ahead. 21 A. Well, if I'm understanding you, you're 22 asking me if because of the apparent change from 23 the time Dr. Silverman saw the patient until she 24 was operated upon, that if in fact Dr. Silverman 173 1 couldn't see it, the tumor was five centimeters 2 by the time it was operated on, wouldn't that 3 imply that the more rapid growth would be the 4 situation as opposed to the later growth, if I'm 5 understanding you. 6 Q. I think I'm suggesting to you that it 7 sounds as if this tumor may have doubled in size 8 in the 15 days using your range, but the quicker 9 end of your range, in the 15 days immediately 10 prior to the surgery, and if that's something 11 that you would agree with? 12 A. I'd have to say I don't know, because 13 again it implies that we're solidifying the size 14 of the tumor at one end, that is Dr. Silverman's 15 diagnosis, and I'm not certain that I can do 16 that. 17 Q. You think Dr. Silverman may just have 18 missed a five-centimeter tumor? 19 A. Well, I don't think it was necessarily 20 five centimeters, but it might have been four 21 centimeters. Possibly. I don't know. 22 Q. Do you think she might have missed a 23 four-centimeter tumor, realistically, 24 board-certified oncologist? 174 1 A. Well, I deal with oncologists, medical 2 oncologists, and some are more inclined toward 3 diagnosis of head and neck tumors and able to do 4 it, and others are less so. I can't comment on 5 her experience. 6 Q. You have no opinion one way or the 7 other as to whether or not this tumor doubled in 8 size in the 15 days prior to surgery, is that a 9 fair statement? 10 A. The fair statement would be that I 11 can't give you the -- I can give you a range of 12 doubling time, which I've done, but I would not 13 be able to tell you specifically if it was more 14 toward the 15-day or the 35-day period. 15 Q. Okay. You've mentioned these growth 16 rates, can you site for me any literature which 17 supports the growth rates that you've cited? 18 You've indicated 5 to 12 days for number of 19 cells doubling, and 15 to 35 days for the size 20 of the tumor doubling, can you quote for me some 21 literature, cite me to some literature, 22 authoritative literature, which would support 23 those doubling rates? 24 A. I can remember reading articles 175 1 regarding this, but I'm afraid I can't tell you 2 the titles or the journals from which they came 3 at this point. 4 Q. Can you tell me whether or not -- can 5 you tell me what field they would be in, whether 6 they would have fallen within the ENT literature 7 or the oral surgery literature, or perhaps some 8 overlap, some literature that would apply 9 equally to both? 10 A. I believe it may be oncologic 11 literature, but I'm not certain. I think there 12 have been -- I read primarily otolaryngology 13 literature, and I've read it there. I can't 14 give you specific titles or journals at this 15 point. 16 Q. Is it your understanding -- what is 17 your understanding as to when Dr. Witt's biopsy 18 report became available to other involved 19 healthcare providers? 20 A. Well, it would have been available to 21 other healthcare providers as soon as the slides 22 were read and the report dictated. 23 Q. What is your understanding as to when 24 Dr. Witt's pathology report was first reviewed 176 1 by other healthcare providers? 2 A. You know, I'm not certain. 3 Q. If you were to learn that 4 Dr. Silverman had available to her Dr. Witt's 5 path report, for lack of a better term, would 6 you then agree with me that the overwhelming 7 probability is that this tumor doubled in size 8 in the 15 days prior to the resection surgery? 9 MR. HIRSHMAN: What does the 10 availability of the report in her hand have to 11 do with -- 12 MR. RYMOND: Well, it would suggest a 13 heightened amount of information available to 14 her with which to make a diagnosis if there was 15 a clinically evident tumor present, is what I'm 16 suggesting, and I assume that the Doctor 17 understood that. 18 A. I think I do. 19 MR. RYMOND: But thanks, Toby, for 20 giving me the opportunity to clarify. Go ahead, 21 Doctor. 22 MR. HIRSHMAN: Go ahead. 23 A. I don't think it would change my 24 answer that I had given to you previously. 177 1 Q. Okay. You've been critical of a 2 number of healthcare providers in this case for 3 failing to obtain the -- I'll call it the Witt 4 biopsy report. You know what I'm referring to. 5 A. Yes. 6 Q. Can you cite for me any literature 7 which defines or suggests a duty upon a dentist 8 to make inquiry of prior healthcare providers as 9 to a pathology report or biopsy results? 10 A. No, I don't think that I can cite 11 literature that makes that a requirement. I 12 don't think I could cite literature that makes 13 it a requirement in any field. I think it 14 generally is simply a customary and standard 15 activity in the performance and rendering of 16 good and standard care that would do that, and 17 I'm not aware of any literature even in my own 18 field that states that that should be done. I 19 think it's a customary, common sense, reasonable 20 approach to care of patients. 21 Q. Apparently -- it's common sense to 22 you, but apparently none of the dentists who saw 23 this patient between October and April went 24 ahead and did it. Do you believe that that's 178 1 something that they were taught somewhere along 2 the line, either in a textbook or in the 3 literature or in dental school? Do you have 4 some basis to believe that they were trained to 5 do that? 6 A. Well, I'd have to answer that by 7 saying that I think that they should have been 8 trained, and I think that for appropriate care 9 of a patient knowing what one is dealing with 10 specifically is important, and I think that they 11 should have been trained that if a biopsy had 12 been done in the region of a disease that 13 they're dealing with that they should have 14 knowledge of that. Both the person who is 15 referring the patient should convey that, and 16 the person who's in receipt of the referral 17 should seek that. 18 Q. Okay. Would the same hold true if the 19 biopsy were done one year earlier? 20 A. Yes, I think that it would. 21 Q. Would the same hold true if the biopsy 22 were done two years earlier? 23 A. Yes. 24 Q. Would the same hold true if the biopsy 179 1 were done five years earlier? Where do you draw 2 the line, rather than me trying to guess where 3 it is? 4 A. Well, I think as long as any sort of 5 visible -- unless the lesion had been treated 6 and eradicated, that it would be important to 7 have that at any time. 8 Q. So you draw the line at wherever 9 there's a visible lesion, I take it, from your 10 answer, is that correct? 11 A. No. I draw the line at wherever the 12 lesion for which the biopsy had been done had 13 been treated, that lesion had been treated and 14 eradicated. 15 Q. How about if the patient were a 16 dentist or a medical doctor, would you then 17 believe that under these circumstances that 18 these various dentists should have questioned 19 the information provided by the patient and 20 sought the pathology report from the physician 21 who ordered the biopsy or performed the biopsy? 22 A. Yes, I think -- I think that the 23 profession of the person who's had the 24 medication, or who's had the procedure done 180 1 shouldn't have any standing on this. I would 2 hope that if I had a biopsy done that anyone 3 taking care of me would do it that way and not 4 ask me to provide the answers or implications 5 about biopsies. 6 Q. I see. Mechanically how would, say, 7 Dr. Callahan have obtained this pathology 8 report, what would he have done? What do you 9 believe he should have done? 10 A. He could have called Dr. Kir -- 11 Dr. Witt, I'm sorry, for that biopsy report, or 12 he could have written him a letter asking for 13 the biopsy report, or he could have called or 14 written to the hospital asking for the biopsy 15 report. 16 Q. Do you believe it would have been 17 acceptable had he written a letter saying would 18 you please send this to me so I can take a look 19 at it? 20 A. Yes, send me a copy of the report. 21 Q. And if he didn't get it within a 22 reasonable time, then what would you expect to 23 have happen? 24 A. That he would try again. 181 1 Q. And what would you expect him to do by 2 way of trying again? 3 A. Either the same thing that he did or 4 something different. 5 Q. Okay. What would you believe to be a 6 reasonable amount of time? 7 A. For what? 8 Q. To try again. He sends a letter, no 9 report shows up. When does he send a second 10 letter or do something else to try again? 11 A. Well, I think within a couple of weeks 12 he would want to try again. 13 Q. By the way, you wouldn't from a 14 practical standpoint expect him to be able to 15 make a phone call and actually get that path 16 report, would you? There's something about 17 privilege, physician-patient privilege, that 18 might interfere with that process. He probably 19 would need to get an authorization. Most 20 healthcare providers would want it to be in 21 writing from the patient, and then he would 22 probably need to transmit that along in order 23 from a practical standpoint to get the report, 24 wouldn't he? 182 1 A. I suppose that's true. I must confess 2 that often times I've written to physicians 3 asking for copies of records or copies of 4 pathology reports, and they've sent them along. 5 Perhaps we've been outside of what's appropriate 6 for confidentiality. There's also and was then, 7 I think, the existence of the fax machine which 8 helps to speed up this process if one wants to 9 do it. 10 Q. You're not saying that Dr. Callahan 11 was required by the standard of care to have a 12 fax machine in his office, are you? 13 A. No. But I'm just saying that's 14 another way that this could have been done. 15 Q. You mentioned earlier -- you were 16 looking at an x-ray. It's not important what 17 the x-ray was. You mentioned, though, a 18 bite-wing x-ray. What is a bite-wing x-ray, 19 just generally? 20 A. A bite-wing x-ray is an x-ray that's 21 taken with the film attached to a piece of 22 cardboard that actually is bit on by the 23 patient, and I think it has to do with the shape 24 of the x-ray. It's essentially that x-ray that 183 1 dentists take in their offices not infrequently. 2 Q. What does it show? 3 A. It usually shows a localized area of 4 dentition. It may show upper teeth alone or 5 lower teeth alone or upper and lower teeth and 6 some of the surrounding bone, usually to the 7 area of the roots of the teeth. 8 Q. All right. Do you have an opinion as 9 to the effect on Cathleen's disability or 10 employability in the future had she been 11 diagnosed, say, on March 5th? 12 MR. HIRSHMAN: Of '96? 13 MR. RYMOND: Of '96, yes. Thanks. 14 A. Well, I believe at that point she 15 could have had a marginal as opposed to a 16 segmental resection of her mandible, and I think 17 that the functional disability of that is 18 markedly less than the segmental resection, and 19 that the second operation, which resulted in 20 facial nerve injury, then could have been likely 21 avoided, and I think that both those facts would 22 have made considerable difference in her 23 appearance and ability to eat, thus increasing 24 her ability to be employed. 184 1 Q. Can you quantify that in any way? 2 It's kind of a subjective thing. 3 A. It's subjective. 4 Q. We've talked about the probability of 5 a second cancer after an initial primary cancer. 6 We've also talked about the probability of a 7 third cancer once there's been a second cancer. 8 However, in this case you believe that there may 9 already be three primary cancers, correct? 10 A. Possibly, yes. 11 Q. You do not hold the opinion that the 12 cancer of the tongue diagnosed in late 1996 is 13 causally related to any wrongdoing on the part 14 of the Defendants in this case, is that correct? 15 A. My -- I do not hold that opinion 16 definitely. I have to say that I don't have all 17 of the records, it's my impression, about that 18 tumor, its location and exact type. And until 19 -- unless I had something that could 20 substantiate it, I would have to say at this 21 point that I can't argue that the Defendants are 22 liable for that or a cause of that. 23 Q. And I take it that's in part 24 attributable to the fact that that cancer wasn't 185 1 diagnosed or treated until somewhere in the 2 neighborhood of four months after the last of 3 the Defendants had any involvement with this 4 patient, correct? 5 A. Yes. 6 Q. Therefore the tongue may already be a 7 third cancer. I take it the likelihood of a 8 fourth primary cancer would again go up? 9 A. Yes. 10 Q. What is osteoradionecrosis? 11 A. Osteoradionecrosis is a death of bone 12 because of high dose radiation treatment which 13 effects blood supply to that bone. 14 Q. And what is dry socket? 15 A. Dry socket to my understanding is a 16 condition that occurs after a dental extraction 17 takes place in which mucous membrane or the 18 lining of the mouth fails to grow into the 19 socket and bone remains exposed and which dries 20 out. 21 Q. Have you ever diagnosed or treated dry 22 socket? 23 A. I have seen it, but I have not 24 diagnosed or treated it. 186 1 Q. In December of 1995, is it your 2 understanding that Cathleen Lane was 3 experiencing pain to pressure and when brushing 4 her teeth? 5 A. I believe she did have some 6 discomfort, yes. 7 Q. In the area of tooth number 19, 8 correct? 9 A. Yes. 10 Q. Your report asserts two criticisms of 11 Dr. Callahan. First, the failure to get a 12 written confirmation of a negative biopsy. And 13 second, for failing to formulate a differential 14 diagnosis. Are those your two criticisms of 15 Dr. Callahan? 16 A. Yes. 17 Q. And have we discussed all of the bases 18 for those criticisms? 19 A. I think certainly amongst -- these are 20 similar to the criticisms that I had of other 21 providers, yes. 22 Q. At some point in this deposition, 23 we've discussed every basis you have for those 24 criticisms, correct? 187 1 A. I think so, yes. 2 Q. Is bone involvement of squamous cell 3 carcinoma, that is when squamous cell carcinoma 4 has invaded bone, would the appearance of that 5 be similar to the appearance of osteomyelitis? 6 A. Clinically? 7 Q. Radiographically. 8 A. Yes, it may be. 9 Q. Is squamous cell carcinoma in bone 10 characterized by an irregular moth-eaten 11 radiolucency with ragged margins? 12 A. It may be, yes. 13 Q. Is it true that 90 percent of 14 cancerous oral lesions occur on the lower lip? 15 A. I'm not certain of that, of that exact 16 statistic. 17 Q. Is it approximately 90 percent, 18 somewhere in that range? 19 A. I don't know. 20 Q. Is it more than 80 percent? 21 A. I don't know. 22 Q. Is it more than 50 percent? 23 A. I don't know. 24 Q. Okay. 188 1 A. Certainly not in my practice. But 2 nationally I don't know. 3 Q. In your report, you state that the 4 biopsy -- in your discussion of Dr. Callahan, 5 you state that he should have done a biopsy, and 6 you state that this biopsy could easily have 7 been obtained at the time of the extraction of 8 number 19 or during the curettage that he 9 performed in April. 10 A. Yes. 11 Q. Would you have been satisfied with the 12 timing of the biopsy had he performed the biopsy 13 at the time of the curettage in April? 14 A. Well, I certainly would have preferred 15 to have seen him do it at the time of the 16 extraction of tooth number 19 in February of 17 '96. But I believe that had he not done it 18 then, then doing it at the time of the curettage 19 would have been the second best option. 20 Q. Would that have satisfied at least the 21 minimal standard of care? 22 A. Well, I think the minimal standard of 23 care was to formulate a differential diagnosis 24 and to obtain the previous biopsy reports. I 189 1 think at the situation in which he found himself 2 in April of 1996 that the appropriate treatment 3 would have been to obtain tissue for biopsy. 4 Q. But you would concede that he may not 5 have had reason to do a biopsy until he had the 6 pathology report, and you would concede that he 7 would not necessarily have had that pathology 8 report at the time of the extraction, is that 9 correct? 10 A. I believe that's correct. 11 Q. Thanks. That's all I have. 12 13 14 15 16 17 18 19 20 21 22 23 24 190 1 EXAMINATION 2 BY MR. HULME: 3 Q. Doctor, I'm Roy Hulme. I represent 4 Dr. Synenberg. Most of what I'm going to ask 5 you I think you've already testified to, but I 6 want to confirm it and put it in one place at 7 one time. 8 Referring to the December 8th, 1995, 9 visit to Dr. Kirby, as I understand it, your 10 testimony is that a patient with a history of 11 swelling on the lingual side of tooth number 19 12 or 20 that started about two weeks ago, that 13 history is consistent with a dental infection or 14 inflammation even in the absence of a cancerous 15 tumor, is that correct? 16 A. Yes. 17 Q. Okay. And likewise, if the patient 18 reports that that swelling varies, it seems to 19 vary in size, that would be consistent with a 20 dental abscess or inflammation even in the 21 absence of a cancerous tumor, is that correct? 22 A. Yes. 23 Q. So, in other words, the history given 24 by Cathy Lane to Dr. Kirby is consistent with a 191 1 diagnosis of a dental abscess or inflammation 2 even in the absence of cancer, is that fair? 3 A. Yes, that would be one of the 4 considerations in a differential diagnosis. 5 Q. Okay. Now, the x-ray that you looked 6 at from December 18th of 1995 taken by 7 Dr. Synenberg, as I understand it, you agree 8 that what's in this x-ray also is consistent 9 with a dental inflammation or abscess or 10 infection even in the absence of a cancerous 11 tumor, correct? 12 A. Yes. 13 Q. And can we agree that the way the 14 patient presented to Dr. Synenberg on 15 January 24th, 1996, the second visit, the way 16 she presented, still having some problem in this 17 area, 19 and 20, the way she presented and the 18 history with which she would present would be 19 consistent with a dental infection or abscess or 20 inflammation even in the absence of a cancerous 21 tumor, is that fair? 22 MR. HIRSHMAN: What are you saying she 23 presented with at that time? 24 Q. You've reviewed the records of 192 1 Dr. Synenberg's testimony? 2 A. Yes. 3 Q. And Cathy Lane's testimony, correct? 4 A. Yes. 5 Q. So the way that she presented at that 6 January 24th visit, with the complaints she had, 7 your knowledge of the treatment that was 8 rendered by Dr. Synenberg, the x-rays that he'd 9 reviewed, you would agree with me that the way 10 she presented on January 24th, 1996, was 11 consistent with a dental abscess or inflammation 12 even in the absence of an oral cancer, correct? 13 A. Yes. Again, that would be one 14 consideration in a differential diagnosis, that 15 possibility, yes. 16 Q. And your criticism of Dr. Synenberg is 17 that at that first visit he should have explored 18 with her more about these biopsies that she had 19 had back in October? 20 A. That's one criticism that I have, yes. 21 Q. Okay. He should have -- well, you 22 know that he did talk to her about the biopsies, 23 correct? 24 A. Yes. 193 1 Q. All right. She had written on the 2 history form that she had had cancer, oral 3 cancer, correct? 4 A. Yes. 5 Q. He asked her specifically what type of 6 cancer, where the problem was, correct? 7 A. I believe so, yes. 8 Q. That would be good dental practice, 9 correct? 10 A. Yes. 11 Q. He asked -- I think you know that 12 Cathy has testified that she told Dr. Synenberg 13 that she had had a biopsy -- 14 A. Yes. 15 Q. -- to several sites in October, 16 correct? 17 A. Yes. 18 Q. And do you have any reason to 19 disbelieve that Cathy told Dr. Synenberg that 20 the biopsies were negative? 21 A. No. 22 Q. Your first criticism then of 23 Dr. Synenberg is that he should have somehow 24 contacted somebody to obtain those biopsy 194 1 reports, correct? 2 A. Yes, he should have verified the 3 report. 4 Q. And to whom do you believe he should 5 have -- or with whom should he have verified 6 those reports to meet the minimum standard of 7 care in your opinion? Would it be Dr. Kirby, 8 the referring dentist? 9 A. I think anywhere that he could have 10 gotten the original, a copy of the original 11 report. 12 Q. Well, based upon your view of the 13 standard of care, where do you think his first 14 inquiry should have been? 15 A. To Dr. Witt or to the hospital at 16 which it was done. I'm assuming it was done in 17 a hospital or by a pathologist. 18 Q. So you believe the minimum standard of 19 care requires an endodontist, a root-canal 20 specialist, to contact the person who did the 21 biopsy to obtain a copy of the report, correct? 22 A. Well, I don't mean to say that. I 23 mean to say that wherever -- from whomever he 24 could get a written copy of the report would be 195 1 all right. I mean, if that came through 2 Dr. Kirby, if he had had it, I don't think he 3 did, but if he had had it that would have been 4 fine. 5 Q. What if he called Dr. Kirby and 6 Dr. Kirby reported that the biopsy was negative, 7 would you think that met the applicable standard 8 of care, would satisfy the applicable standard 9 of care? 10 A. No. I think that he needed to have a 11 written copy of the pathologist's report. 12 Q. Do you believe that Dr. Synenberg to 13 meet the applicable standard of care should have 14 actually looked at the slides, the pathology 15 slides? 16 A. No. 17 Q. And why do you believe that 18 Dr. Synenberg would meet the applicable standard 19 of care by relying upon the pathology report as 20 opposed to viewing the slides themselves? 21 A. Well, I think that most of us are not 22 trained to, or would not be facile at looking at 23 slides, and I think that the standard is that we 24 accept pathologists' reports. That's not to say 196 1 that pathologists can't be wrong, but the 2 standard would be that we do rely on 3 pathologists for reports regarding slides that 4 they look at. 5 Q. Okay. And would it meet the 6 applicable standard of care for a practitioner 7 to rely upon the oral report of someone from 8 whom he is seeking information? 9 MR. HIRSHMAN: A professional, you 10 mean? 11 MR. HULME: Yeah, a professional. 12 A. I think that if -- 13 Q. Let me put it this way, if 14 Dr. Synenberg had call Dr. Witt's office and had 15 been told the biopsy reports were negative, 16 everything was fine, would that have met the 17 applicable standard of care for Dr. Synenberg? 18 A. No. I think the one situation in 19 which an oral report would be accepted would be 20 if someone, usually a secretary in a 21 pathologist's office, were to read the pathology 22 report over the phone to the physician, I think 23 that would meet the applicable standard of care, 24 but I think it should still be followed by 197 1 obtaining a hard copy written report. 2 Q. All right. Now, can we agree that it 3 was appropriate for Dr. Synenberg to do the root 4 canal on tooth number 20 on December 18th, 1995? 5 A. It's my opinion that if he were to 6 have obtained the pathology report, he would -- 7 it would have been more appropriate to have 8 obtained a biopsy of the tissue in the area of 9 the dental socket or gum or both prior to doing 10 the root canal. 11 Q. Well, you've already -- I know Rick 12 went through this with you about how long it 13 might take to actually get a copy of the 14 pathology report. 15 Are you saying that 16 Dr. Synenberg violated applicable standards of 17 care by doing the root canal without physically 18 having a copy of that pathology report in his 19 hand, is that your position? 20 A. My position is that he should have -- 21 no, I don't think that's exactly my position. 22 If he did the root canal, and I can't -- I can't 23 criticize him strongly for that, but I think at 24 the time that the root canal was done that 198 1 additional tissue in the form of a biopsy of the 2 tissue in the area should have been obtained. I 3 think he would have been more likely to do that 4 had he had a copy of the previous biopsy report 5 or had he been told by Dr. Kirby, for instance, 6 that -- that Dr. Kirby himself had obtained the 7 report and had given him that report. 8 Q. Well, can we agree -- we already 9 agreed, I think, that the way this patient 10 presented on December 18th, 1995, was consistent 11 with a dental infection or inflammation or 12 abscess. It was consistent with that, correct? 13 A. Yes. 14 Q. And the proper treatment for a 15 suspected dental abscess, inflammation or 16 infection might include a root canal, correct? 17 A. That's correct. But, I mean, 18 certainly it's also consistent with cancer, and 19 I don't think that a root canal is appropriate 20 treatment for that. I'm not sure if the root 21 canal is going to be a reasonable thing. In the 22 face of cancer, that tooth is likely going to be 23 removed either in treatment of the cancer, or 24 likely by a marginal resection of the mandible 199 1 that tooth would likely be removed, so a root 2 canal is really not relevant to it, and it could 3 be avoided if the diagnosis of cancer were made. 4 In addition to that, failure to do the biopsy at 5 that time further delays the diagnosis of the 6 tumor. 7 Q. Would you agree with me that in 8 medicine one of the ways you ultimately make a 9 diagnosis may include performing of treatment to 10 see how it responds? 11 A. I wouldn't disagree with that in some 12 situations, yes. 13 Q. I mean, for example -- and I may be 14 asking you some unfair questions because you 15 testified that you can't comment on the 16 necessity of the root canal on 20 or the 17 extraction of number 19, is that because you're 18 not a dentist? 19 A. Well, my -- I think that my opinion 20 would be that at that given moment when 21 Dr. Synenberg saw Cathleen Lane it may have been 22 appropriate to do a root canal on tooth number 23 20. But certainly as the tumor grew, it's my 24 opinion that it was not appropriate because that 200 1 area of the mandible had to be removed, even if 2 it had been done early enough by a marginal 3 resection, and the root canal was done in a 4 tooth that was going to be gone. So therefore 5 had the diagnosis been made, that treatment 6 wouldn't have been necessary. If he was 7 determined to do treatment on the day that he 8 saw the patient, a root canal based on his 9 judgment may have been appropriate, but I 10 think -- and probably not harmful to the patient 11 in any way other than the need to go through a 12 procedure which wasn't going to be long lasting 13 or helpful. But I think my opinion is that he 14 should have obtained the results of the biopsy 15 reports and made a decision to go ahead and 16 obtain tissue prior to doing the procedure. 17 Q. Well, let me -- what contact have you 18 had by way of -- have you ever -- let me start 19 again. 20 Have you ever had a course at a dental 21 school as a student? 22 A. Not within a dental school per se, no. 23 Q. Have you ever taught at a dental 24 school? 201 1 A. No. 2 Q. Can you name a textbook in 3 endodontics? 4 A. No. 5 Q. Do you hold yourself out as an expert 6 in endodontics? 7 A. No. 8 Q. Dr. Allen, the oral pathologist in 9 Columbus, has expressed an opinion that he would 10 probably agree that Dr. Synenberg fell within 11 applicable standards of care as to the first 12 visit, December 18th, 1995, would you defer to 13 Dr. Allen? 14 A. With regard to that opinion? 15 Q. Yes. He is at least a dentist. 16 MR. HATCHADORIAN: Are you talking 17 about the first visit? 18 MR. HULME: Yes. 19 A. Just to clarify that, with respect to 20 what in that first visit? 21 Q. The treatment, the appropriate -- what 22 Dr. Synenberg did on December 18th, 1995. 23 A. My recollection is that he did a root 24 canal on tooth number 20 and attempted a root 202 1 canal on tooth number 19. 2 Q. And didn't contact anybody about 3 getting a pathology report and didn't do a 4 biopsy. Would you defer to Dr. Allen? 5 A. Not in that situation, no. 6 Q. Okay. If you make the diagnosis in 7 a -- have you ever made a diagnosis in a patient 8 of a dental abscess? 9 A. Yes. 10 Q. And did you refer that patient to a 11 dentist for treatment? 12 A. I've had several of those patients. 13 Some I've referred to dentists, others I've 14 referred to oral surgeons. 15 Q. But can we agree that you would not in 16 your practice undertake the treatment of a 17 dental abscess or inflammation? 18 A. I have drained dental abscesses in my 19 practice, but I have not undertaken the care of 20 the tooth. 21 Q. Or the surrounding tissues other than 22 to drain the immediate problem? 23 A. Correct. 24 Q. Okay. In your practice, do you use I 203 1 think what you described as bite-wing x-rays? 2 A. I don't. 3 Q. Okay. I mean, if somebody sent them 4 to you, you'd look them over, I presume? 5 A. Yes. Or I've requested them. I have 6 sent patients to dentists to have them done, but 7 I don't do them in my office myself. 8 Q. Do you believe any time there's bone 9 loss in the mandible it should be biopsied to 10 meet the standard of care of a dentist? 11 A. No. 12 Q. Because there are other reasons for 13 bone loss other than cancer? 14 A. Yes. 15 Q. Do you believe that any lump in the 16 oral cavity should be biopsied to meet the 17 standard of care of a dentist? 18 A. No. 19 Q. Do you recall anything specific about 20 Dr. Synenberg's testimony where you believe he 21 either spoke an untruth or where you questioned 22 his actions? 23 MR. HATCHADORIAN: I think he already 24 answered that. 204 1 A. From an ethical standpoint, you mean? 2 I mean, I've questioned his actions in terms of 3 his care of the patient, but beyond that I don't 4 have a criticism. 5 Q. I mean, when he described what he saw, 6 do you believe that he was testifying 7 untruthfully? 8 A. No. 9 Q. What he described what he saw is 10 consistent with what you understand the facts to 11 be, correct? 12 A. Yes. 13 Q. Do you know how teeth are numbered? 14 You've been referring to 18 and 19 and 20. Do 15 you know what the numbering system is? 16 A. I've certainly seen it on several 17 occasions. I frequently have to refer to it 18 when dentists -- 19 Q. Where is number one? 20 A. I'm not certain. I would have to 21 look. 22 Q. At a chart? 23 A. At a chart. 24 Q. The numbering of teeth is something 205 1 that's done by the dentists? 2 A. Yes, I think primarily. 3 Q. I mean, they're the people who devised 4 and used the tooth-numbering system, correct? 5 A. I believe so. 6 Q. Do you know of any dentist who doesn't 7 know where tooth number 1 is without looking at 8 a chart? 9 A. I wouldn't know. I would doubt it. 10 Q. The tender lymph node that was 11 described by Cathy Lane, that is consistent with 12 an oral infection or inflammation even in the 13 absence of an oral cancer, correct? 14 A. Yes. 15 Q. Dr. Silverman when she examined the 16 patient April 16th, 1996, we know from her 17 report she was aware of the results of the 18 biopsy from October, her report references it? 19 A. Yes. 20 Q. As of April 1996, it's your opinion 21 there was an obvious tumor, at least four 22 millimeters, or four centimeters in size, 23 correct? 24 A. Yes. 206 1 Q. And my question is, are you critical 2 of Dr. Silverman for not biopsying the area of 3 the tongue that had been biopsied in October of 4 '95? 5 A. Well, I think my understanding is that 6 she arranged, and I may be incorrect about this, 7 but my understanding is that she arranged for 8 Dr. Goldberg to see the patient and to perform 9 those biopsies or to investigate the oral 10 cavity. 11 Q. I may be wrong, but my understanding 12 is the only biopsy that was done was in and 13 around the floor, the area of the extraction. 14 A. That's correct. I'm sorry, are you 15 talking about doing a biopsy then of the 16 anterior tongue? 17 Q. Correct. 18 A. Oh. 19 Q. The area of the tongue that had been 20 biopsied in October of '95 found to be somewhat 21 abnormal -- 22 A. Yes. 23 Q. -- okay. 24 MR. HIRSHMAN: We're talking about a 207 1 bunch of structures that are in close proximity 2 to each other if not overlapping the tooth. 3 Q. Let me put it this way, would it be 4 your opinion, since you've concluded that there 5 was an oral cancer now associated with one of 6 the two sites of the October biopsy, would it be 7 your opinion that it would fall beneath the 8 standard of care in April and May of 1996 not to 9 have rebiopsied the other of the two sites 10 biopsied in October of '95? 11 A. No. 12 Q. And why not? 13 A. Well, because the -- of course the 14 lesion in the left floor of the mouth was a 15 dysplastic lesion, but my recollection is that 16 the other lesion was not dysplastic and was not 17 ominous. 18 Q. Would you look at the October '95 path 19 report then, please. If it was dysplastic, then 20 you would be critical of her? 21 MR. HIRSHMAN: Of who? 22 Q. Of Dr. Silverman or Dr. Goldberg for 23 not rebiopsying the same area? 24 A. Well, I think that would depend on 208 1 what was seen in that area, because if the -- on 2 the original -- if on the original biopsy in 3 October of 1995 the lesion were removed, then 4 there wouldn't be anything to biopsy. I think 5 from this it appears that the tip of tongue 6 lesion also was dysplastic, but my understanding 7 is, and I'll go back to Dr. Silverman's report, 8 that there wasn't anything visible on the tongue 9 at that time. 10 Q. Didn't she also state that there were 11 no obvious abnormalities of the floor of the 12 mouth, of the palate or obvious lesions in the 13 area of the dental extraction? That's page 2 of 14 her report. 15 A. She did, yes. 16 Q. So you would agree then that in the 17 absence of obvious abnormalities that it would 18 have been appropriate not to biopsy in April of 19 1996? 20 A. Well -- 21 Q. Under the circumstances with which 22 Dr. Silverman was confronted. She chose to, but 23 it would have been acceptable for her not to 24 have done the biopsy, is that fair? 209 1 MR. HIRSHMAN: Are you forgetting 2 about the leukoplakia that she found there that 3 was in fact biopsied? I mean, there was a 4 lesion there. At least if you're going to refer 5 to the report talk about everything that's in 6 it. 7 MR. HULME: Yeah, on the tip of her 8 tongue and the right side. 9 MR. HIRSHMAN: No, no. No. 10 MR. HULME: And the posterior tongue 11 on the left side. 12 MR. HIRSHMAN: That is the area that 13 we're talking about here. 14 MR. HULME: No, we're not. 15 MR. HIRSHMAN: We are. 16 MR. HULME: No, we're not. 17 Go ahead, Doctor. 18 A. She does state in her impression that, 19 "At the current time, there does not appear to 20 be a recurrence of her squamous cell carcinoma, 21 although we cannot exclude a new occurrence of 22 disease either in the gum or in the tongue 23 tissue. It is our expectation that the biopsies 24 to be done two days from now will be the most 210 1 revealing tests that could be done at this 2 time." So that she did have a suspicion of 3 tumor in the area of the gum and tongue and did 4 suggest that biopsies be done. 5 Q. What she had was a tooth that had been 6 extracted that wasn't healing, that's additional 7 information over and above what Dr. Kirby, 8 Dr. Synenberg and Dr. Callahan had up until 9 April of 1996, correct? 10 A. I agree with that. 11 Q. Okay. And you would agree with me if 12 there were no obvious abnormalities of the floor 13 of the mouth, of the palate or obvious lesions 14 in the area of the dental extraction, then even 15 with the October '95 path report it would have 16 met acceptable standards of care not to have 17 done a biopsy of that area? 18 A. If there had been no abnormalities 19 visible? 20 Q. Correct. 21 A. That's a hypothetical situation. I 22 think if all had healed well and if there had 23 been no visible abnormalities at the time of 24 Dr. Silverman's examination, if I'm 211 1 understanding the question correctly, that in 2 and of itself just to do a random biopsy would 3 not be appropriate, I would agree. But my 4 understanding is that that's not the situation, 5 there was a nonhealing dental socket there -- 6 Q. Correct. 7 A. -- and leukoplakia. 8 Q. All right. So if we have -- well, 9 there were leukoplakia in the areas of the 10 tongue that she did not biopsy, so their mere 11 presence even with the path report of October 12 1995 doesn't dictate a biopsy, does it, to meet 13 applicable standards of care? 14 A. I think that any -- no. I think that 15 any persistence of leukoplakia that had not 16 resolved and had been present in the area of a 17 diagnosis -- a previous diagnosis of dysplasia 18 should have been biopsied. 19 Q. So you're saying then, and this is 20 what I started with five minutes ago, you think 21 that Dr. Silverman deviated from applicable 22 standards of care in not rebiopsying/biopsying 23 the area of the tongue that had come back 24 abnormal in October of '95? 212 1 A. Well, she doesn't do biopsies. She's 2 an oncologist, and she refers patients to -- I 3 think she referred the patient, if I'm 4 remembering correctly, to Dr. Goldberg for that 5 purpose. 6 Q. Okay. So do you think Dr. Goldberg 7 was negligent in not doing a biopsy of the 8 tongue in April and May of 1996? 9 A. I think that he should have done a 10 biopsy of the tongue in April of 1996 if there 11 was a persistent lesion there with an area of 12 dysplasia. As it turned out, my understanding 13 is that I don't think that's the same area where 14 the tumor eventually came about four months 15 later, or eight months later, six months later, 16 but I think that he should have done the biopsy. 17 Q. Well, should have done the biopsy. Do 18 you agree that that might fall within the 19 clinical judgment of the practitioner whether or 20 not to do the biopsy? You would have done it. 21 But if he didn't do it, then maybe he still 22 would meet the applicable standard of care? 23 A. Well, we have said that under certain 24 circumstances based on a patient's, or a 213 1 physician's evaluation of a lesion, that he may 2 choose to follow it, but that careful follow-up 3 would be indicated. 4 Q. And likewise, in the situation of 5 Paula Silverman on April 16th, 1996, since there 6 was no obvious abnormalities of the floor of the 7 mouth, of the palate nor obvious lesions in the 8 area of the dental extraction, that absent the 9 history of a nonhealing socket it would have met 10 applicable standards of care for her not to have 11 ordered a biopsy, correct? 12 A. Well, I think absenting the history of 13 a nonhealing socket, if nothing were visible at 14 that time and healing had taken place in 15 perfectly normal fashion, I think I would agree 16 with that. 17 Q. Okay. I don't have any other 18 questions. 19 20 21 22 23 24 214 1 EXAMINATION 2 BY MR. NORCHI: 3 Q. Doctor Bogdasarian, my name is Kevin 4 Norchi. I represent Robert Katz. I've reviewed 5 your report dated May 18, 1998. Doctor, do you 6 have a copy of your report in front of you? 7 A. Yes, I do. 8 MR. HIRSHMAN: Kevin -- 9 MR. NORCHI: Yes, sir. 10 MR. HIRSHMAN: -- we keep having you 11 break up a little bit, and I'm not sure why. 12 MR. NORCHI: Okay, well, let me try 13 again. 14 Q. Do you have the report in front of 15 you, Doctor? 16 A. Yes, I do. 17 Q. Doctor, I find that the criticisms 18 that you have or that you've expressed regarding 19 Dr. Katz's care and treatment of -- 20 MR. HIRSHMAN: Hold on. Hold on. 21 MR. NORICHI: Are you with me? 22 MR. HIRSHMAN: No. We're having 23 trouble with the phone and the court reporter. 24 (Discussion held off the record.) 215 1 Q. Let me go back to the beginning. 2 Doctor, on page 9 of your report you have some 3 references to Dr. Katz's care and treatment of 4 Cathleen Lane that you believe amounts to some 5 criticism of his care, is that correct? 6 A. Yes. 7 Q. Okay. I go through your report -- 8 MR. HIRSHMAN: Wait a minute. This 9 is not working real well. The court reporter is 10 not getting this. I'm going to try to raise the 11 volume to see if that helps. Let's try it now. 12 Q. Doctor, on page 9 of your report you 13 have what appears to be the sum and substance of 14 criticisms regarding Dr. Katz's care and 15 treatment of Cathleen Lane. Do you have page 9 16 in front of you? 17 A. Yes, I do. 18 Q. Now, Doctor, your report specifically 19 on page 9 identifies your criticisms of 20 Dr. Katz's care and treatment as rising from, 21 really from Dr. Katz and Dr. Witt failing to do 22 the following things: One, failing to follow 23 up, provide follow-up instructions to Cathleen 24 Lane regarding the October 1995 biopsy, correct? 216 1 A. Yes. 2 Q. The second criticism is their failure 3 to follow up closely with the patient given the 4 finding of the dysplasia in October of 1995, 5 correct? 6 A. Yes. 7 Q. The third, failing to notify other 8 caregivers of the October 1995 results, correct? 9 A. Yes. 10 Q. Now, Doctor, in reviewing your report, 11 I do not see any other specific criticisms of 12 the care provided by Dr. Katz to Cathleen Lane. 13 A. Correct. 14 Q. Okay. Do you have any other 15 criticisms of Dr. Katz's care and treatment of 16 Cathleen Lane other than those items that we 17 just mentioned? 18 A. No. 19 Q. Okay. Now, Doctor, in following up to 20 a principle you enunciated earlier, is it fair 21 to say that if Dr. Katz was not aware of the 22 lesion which was biopsied on October '95, you 23 would not expect him to provide care for it, 24 would you? 217 1 A. If he were not aware of that, I could 2 not expect him to provide care, that's correct. 3 Q. Okay. Again, Doctor, if he was not 4 aware of the biopsy results, again, he could not 5 provide any follow-up instructions to Cathleen 6 Lane, correct? 7 A. Correct. 8 Q. Again, he could not provide -- he 9 could not follow closely this patient's 10 condition if he was unaware of the biopsy 11 results of October 1995, correct? 12 A. Correct. 13 Q. And again, Doctor, if he was unaware 14 of the biopsy results of October 1995, he would 15 be unable, obviously, to notify other caregivers 16 of those biopsy results, correct? 17 A. Correct. 18 Q. Okay. Now, Doctor, in reviewing the 19 mounds of information in front of you that's 20 been provided to you over the last few years, it 21 appears from your report that Dr. Katz and 22 Dr. Witt have taken on one persona. Are you 23 aware that Dr. Katz and Dr. Witt are two 24 separate people? 218 1 A. I am aware of that, yes. 2 Q. Are you aware that Dr. Katz last saw 3 Cathleen Lane in June of 1994? 4 A. Yes. 5 Q. Doctor, were you aware that there was 6 an oral examination performed by Dr. Rozman on 7 Cathleen Lane in January of 1995? 8 A. I believe that there was. 9 Q. And that the examination was normal? 10 A. I believe that that was his 11 impression. 12 Q. Okay. Do you have any reason to doubt 13 his impression? 14 A. Well, I simply can take him at his 15 impression. Whether he was correct or not, I'm 16 not certain. 17 Q. Okay. Would it be fair to assume, 18 Doctor, that absent any other information that 19 Dr. Rozman's -- let me ask it this way, do you 20 have any information at all available to you 21 that you can identify that Dr. Rozman's 22 impression that this was a normal oral 23 examination in January 1995 is an incorrect 24 evaluation or impression? 219 1 A. Well, simply that one month later in 2 February of 1995 Dr. Kirby, I believe, 3 noticed -- I'm sorry -- Dr. Whelan noticed areas 4 of leukoplakia in the oral cavity. 5 Q. And, Doctor, given the findings by 6 Dr. Rozman, and if we correlate them to 7 Dr. Whelan's findings, isn't it reasonable to 8 assume and conclude that the leukoplakia or the 9 findings by Dr. Whelan in February of 1995 10 developed since the patient had last been seen 11 by Dr. Rozman? 12 A. Well, I don't think that 13 scientifically one could make that conclusion 14 that. That would be one possibility, but 15 another possibility would be that Dr. Rozman did 16 not appreciate that, the presence of that raised 17 white area that Dr. Whelan referred to. 18 Q. Do you have any information or belief 19 that Dr. Rozman is unable or not properly 20 trained to perform an oral examination? 21 A. I don't have any confirmation of that, 22 no. 23 Q. Confirmation. Do you have any 24 evidence whatsoever that might even give you a 220 1 hint that Dr. Rozman is not able to perform an 2 appropriate oral examination? 3 A. None, except that there's a 4 disagreement within a month's time of the 5 findings in the oral cavity between Dr. Rozman 6 and Dr. Whelan. 7 Q. Okay. And then I guess we go back to 8 my other question. Isn't it -- based on this 9 information, isn't it a reasonable conclusion, 10 not a certainty or a guarantee, but isn't it a 11 reasonable conclusion, Doctor, that the findings 12 seen by Dr. Whelan in February of 1995 had 13 developed in that 30-day-or-so interval, isn't 14 that a reasonable conclusion, Doctor? 15 MR. HATCHADORIAN: Objection. 16 A. I would give the same answer, that I 17 think it's a possibility. 18 Q. Now, Doctor, you were asked questions 19 earlier as to whether the February 1995 lesion 20 was dysplastic, and I believe you thought it 21 might be, is that correct? 22 A. Was dysplastic. I didn't hear that 23 word clearly, but I believe that's what you 24 said. Yes, I believe that there would have been 221 1 a form of dysplasia in the February 1995 lesion 2 if it had been biopsied. 3 Q. Doctor, do you have an opinion as to 4 whether or not if a biopsy were performed at 5 that time whether it would have shown mild or 6 moderate dysplasia? 7 A. I think I answered that question 8 before by saying that I didn't know. 9 Q. Okay. Well, Doctor, if a biopsy had 10 been done one month earlier, January of 1995, do 11 you have an opinion as to what that biopsy would 12 have shown? 13 A. No. 14 Q. If a biopsy was done the preceding 15 month, in December of 1994, do you have any 16 opinion as to what it would have shown? 17 A. No, I don't. 18 Q. Doctor, just getting back to your 19 report and your testimony, have we discussed all 20 of your criticisms regarding Dr. Katz regarding 21 his care and treatment of Cathleen Lane? 22 A. Yes, the ones that you mentioned were 23 my criticisms. 24 Q. Okay. There are no others? 222 1 A. No. Namely, that he should have -- I 2 just want it to be clear -- arranged for either 3 himself or someone to provide follow-up for 4 Mrs. Lane's oral cavity. 5 Q. In October of 1995? 6 A. Yes. Well, from the -- during the 7 entire time for which -- yes, in October of 1995 8 and beyond. 9 Q. Okay. You're not critical of his care 10 and treatment before October of 1995, are you, 11 Doctor? 12 A. No. 13 Q. Okay. Now, Doctor, do you have any 14 evidence whatsoever that in fact Dr. Katz saw 15 the patient at that time or was even aware of 16 the biopsy result in October of 1995? 17 A. No. 18 Q. Okay. Doctor, if Dr. Katz was not 19 aware -- you would agree that if Dr. Katz was 20 not aware of the October 1995 biopsy results, 21 all your criticisms of him with regard to his 22 care and treatment of Cathleen Lane? 23 MR. HIRSHMAN: We missed that. 24 MR. NORICHI: Too bad, Toby. It's a 223 1 really good question. 2 MR. HIRSHMAN: Try it again. I'm 3 sorry about this. 4 THE WITNESS: What happens is that we 5 lose portions of your words for some reason, and 6 I can't understand the question as a result. 7 MR. NORICHI: That's fair enough, 8 Doctor. We'll get through this. 9 Doctor, there's no evidence that 10 Dr. Katz was aware of the October 1995 biopsy 11 results, correct. 12 A. That is correct. 13 Q. Okay. Given that, wouldn't you agree, 14 or wouldn't you withdraw your criticisms of 15 Dr. Katz, as they're stated in your report, if 16 in fact he did not have or was not aware of the 17 biopsy results in October of 1995? 18 A. Well, I would be critical that 19 Dr. Katz did not have in place some mechanism by 20 which to be made aware of such an important 21 maneuver or procedure that was carried out on 22 one of his patients. 23 Q. Such a mechanism would be, for 24 example, an understanding among your partners 224 1 that they might share this information with you? 2 A. Yes. 3 Q. Okay. And, Doctor, as we delve into 4 your criticisms, assuming Dr. Katz was unaware 5 that the patient was in there, isn't it your 6 criticism then in fact that Dr. Witt should have 7 told Dr. Katz, isn't that more in keeping with 8 what your criticisms are in this case? 9 A. Well, I do agree with that. I think 10 that Dr. Witt should have told him. But I think 11 that my criticism of Dr. Katz would be that he 12 together with Dr. Witt had not created a 13 situation in which he could be made aware of 14 findings upon one of his patients. I would say 15 that if he and Dr. Witt had the understanding 16 that once one physician performed a procedure or 17 undertook or cared for a patient on one occasion 18 that that patient was then to become purely the 19 responsibility of the patient (sic) who 20 undertook that care, then probably I would have 21 less criticism. 22 Q. Is it then, Doctor -- you know, the 23 corollary of that then would be if you believe 24 that Dr. Katz had some responsibility for 225 1 somehow inquiring to a situation in which he had 2 no knowledge, that would somehow relieve 3 Dr. Witt of any obligation to Dr. Katz, is that 4 what you're suggesting? 5 MR. HIRSHMAN: Did you understand what 6 he said? 7 A. I'm not sure I understood, but let me 8 try to rephrase that. Are you saying that if 9 Dr. Katz had a mechanism in place for receiving 10 that information but Dr. Witt did not make the 11 information available to him, or, I'm sorry, 12 that if he did get that information from 13 Dr. Witt that Dr. Witt would no longer have 14 responsibility? 15 Q. Doctor, I'm going to object to your 16 questions. It's two questions. 17 Doctor, let me do it this way. If 18 there was a mechanism in place by which Dr. Katz 19 should have been advised that his patient was 20 seen, but that the mechanism was not followed by 21 Dr. Witt, would you hold Dr. Katz culpable? 22 A. No. 23 Q. Okay. In the converse, if Dr. Witt 24 had advised Dr. Katz of the results, would that 226 1 relieve Dr. Witt of any responsibility? 2 A. Well, I think that -- no, Dr. Witt 3 would still be responsible for following the 4 patient at that point, or at least between them 5 they would have to -- between Dr. Katz and 6 Dr. Witt they would have to make a decision as 7 to who was going to be providing the care. 8 Q. Okay. And, Doctor, isn't it a fair 9 reading of the letter sent by Dr. Witt to 10 Dr. Rozman that in fact Dr. Witt appears to be 11 following up with this patient? 12 A. I believe so. 13 Q. And again, if it appears from the 14 testimony of Dr. Witt, and also these letters to 15 Dr. Rozman, that Dr. Witt was going to follow up 16 with this patient's biopsy results, under those 17 circumstances would you agree that Dr. Katz is 18 relieved of any culpability in this case? 19 A. Well, I think that, again, Dr. Katz 20 should have had a mechanism in place to receive 21 data with regard to his patient. He certainly 22 knew her better than did Dr. Witt by virtue of 23 his long-term association with her. And I think 24 that if he had received those data and had 227 1 agreed with Dr. Witt that Dr. Witt was going to 2 be assuming the care, then he would be relieved 3 of culpability. But without that, I don't -- I 4 think that he still is culpable for not having a 5 mechanism by which he could obtain data from 6 Dr. Witt. 7 Q. Doctor, what is your mechanism in your 8 office when, for example, Doctor Hughes sees one 9 of your patients? And let me ask you, are there 10 any occasions where you may not be aware -- 11 THE COURT REPORTER: Start again. 12 Q. Let me start over. When your 13 partner -- I assume he's your partner -- 14 Dr. Hughes sees one of your patients, what 15 mechanism do you have in place to make sure that 16 information is relayed to you? 17 A. Well, if -- Dr. Hughes and Dr. Ervin 18 my two associates on occasion do see patients of 19 mine. I think that certainly for every patient 20 that's seen we do not necessarily share 21 information. But what would be considered 22 significant information, biopsy reports, for 23 instance, especially ones that raise potential 24 threat to a patient, would be shared primarily 228 1 by direct discussion. We would discuss that. 2 Q. Okay. And, Doctor, wouldn't you 3 believe that's the process that's in place in 4 most offices, that the physicians will at least 5 communicate among each other? 6 A. Yes. 7 Q. And wouldn't you agree, Doctor, that 8 in this case where Dr. Katz had no knowledge 9 that the patient was even seen in the office, 10 that the only way that that program or process 11 could be initiated is by Dr. Witt actually 12 telling Dr. Katz? 13 A. That's true. And again -- but the 14 establishment of that protocol would be 15 something that would be arrived at mutually 16 between the two. 17 Q. Okay. Doctor, do you have any reason 18 to believe based upon your review of their 19 respective depositions that Dr. Witt and 20 Dr. Katz did not usually or did not as a matter 21 of procedure share information about patients? 22 A. No. And if in fact that protocol did 23 exist, and if it were not followed by Dr. Witt, 24 then I would have to say that Dr. Katz would 229 1 have gone to the extent of his responsibilities 2 with regard to that. I do think that when one 3 is dealing with a cancer patient, and I disagree 4 with Dr. Katz's deposition with regard to this, 5 that lifetime follow-up of those patients is 6 necessary, and that it's the responsibility of 7 the physician to ensure that appointments are 8 made for those patients to return. So that if 9 Dr. Katz was caring for Cathleen Lane and did 10 not make appointments for follow-up, essentially 11 I think that he was culpable for that. So he 12 should have been aware that she was -- he was 13 not hearing from her or about her. 14 Q. Well, Doctor, this last criticism 15 seems to be somewhat separate from what we've 16 been talking about before regarding the office 17 protocol. 18 A. Well, I think it's related in that 19 if -- for instance, if appointments every three 20 months were made for Cathleen Lane to return for 21 examination of her oral cavity and aerodigestive 22 tract, as should be done with patients with head 23 and neck cancer, if she did not keep an 24 appointment or was not seen back, then a 230 1 notification on her chart should have been given 2 to Dr. Katz that she had not kept appointments. 3 So, in other words, if Dr. Katz had made regular 4 appointments to see Cathleen Lane, then when 5 those appointments were not kept he would have 6 become aware of that and would have inquired, I 7 think, as to why she had not been seen by him. 8 Q. Is it your testimony, Doctor, that the 9 standard of care in this setting of Cathleen 10 Lane . . . 11 THE COURT REPORTER: I didn't hear 12 that question at all. 13 MR. HIRSHMAN: Can I ask the question 14 for you and you tell me if I'm asking it right? 15 MR. NORCHI: Okay. 16 MR. HIRSHMAN: Is it your position 17 that the standard of care for a patient such as 18 this in this setting is for follow-up every 19 three months? 20 Is that right? 21 MR. NORCHI: That's fair. 22 MR. HIRSHMAN: Okay. 23 A. No. I was simply using that as an 24 example of how a head and neck cancer patient 231 1 should be followed. I think there are different 2 formulas. The formula that I was taught was 3 that those patients with head and neck cancer 4 should be followed on a monthly basis in the 5 first year after treatment of their head and 6 neck cancer, every two months in the second 7 year, and every three months in the third and so 8 on, unless there is some other lesion of concern 9 which would require appointments to be made more 10 frequently. 11 Q. So if a patient were 12 years out of 12 surgical resection of a carcinoma, 12 years, 13 that the standard of care requires visits, 14 follow-up visits, every 12 months? 15 A. That would be my opinion in a patient 16 who had not had other lesions, but Cathleen Lane 17 was in a different category because she not 18 infrequently developed other lesions in her oral 19 cavity that were of concern and actually 20 required biopsy on some occasions. 21 Q. Well, Doctor, those biopsies -- the 22 first biopsy I believe was in June of 1994, 23 correct? 24 A. Correct. 232 1 Q. When the patient was first seen in 2 July of 1991, he advised her to be seen on a 3 yearly basis? 4 THE COURT REPORTER: I didn't get 5 that. 6 MR. HIRSHMAN: We didn't get that. 7 A. Could I paraphrase that? 8 Q. No. I'll repeat it, Doctor. 9 Are you aware that in July of 1991 10 when the patient was first seen by Dr. Katz he 11 advised her to follow up on a yearly basis? 12 A. I believe that that was the situation. 13 Q. You would agree that that's an 14 appropriate instruction to a patient? 15 A. I believe that that's appropriate 16 instruction to a patient who has not had 17 intercurrent lesions or other problems in the 18 meantime, yes. 19 Q. Well, let's be specific. In July of 20 1991, was that a reasonable and appropriate 21 instruction to Cathleen Lane, in July of 1991? 22 MR. HIRSHMAN: So you want him to, you 23 want him to -- okay, I'm not even going to -- I 24 won't get involved here. Go ahead. 233 1 A. Again, I think that she had had a 2 lesion, I think, in 1990 or '91 that required 3 biopsy, and I think that -- see, the problem 4 with putting people into rigid categories like 5 that depends, I think, overall on the appearance 6 of the mucous membranes of the mouth on 7 examination. And I think in Cathleen's 8 situation, in which she developed lesions 9 periodically, that more frequent follow-up was 10 necessary. 11 Q. Doctor, the reason for the more 12 frequent follow-ups is to have a competent, 13 experienced physician or dentist perform an oral 14 examination, correct? 15 A. Yes. 16 Q. The purpose of which is to see if 17 there are any new lesions, correct? 18 A. Yes. 19 Q. In June of 1994, we can agree that 20 Dr. Katz performed a biopsy at that time, 21 correct? 22 A. Yes. 23 Q. And the biopsy was benign? 24 A. Yes. 234 1 Q. Okay. We also know that the patient 2 was next seen and had an oral examination by 3 Dr. Rozman on January 9, 1995, correct? 4 A. Yes. 5 Q. Okay. And do you recall his note at 6 that time that the patient had not had recent 7 follow-up for her oral tumor; do you remember 8 that note? 9 A. Yes. 10 Q. Okay. Do you recall any testimony -- 11 do you recall the testimony by Dr. Rozman that 12 he was reminding the patient to follow up with 13 Dr. Katz; do you recall that testimony? 14 A. I don't specifically, but I'll accept 15 your word for that. 16 Q. Okay. Now, the patient did have an 17 oral examination in February of 1995, correct? 18 A. Yes. 19 Q. And it's your opinion, I think, that 20 it should have been -- that that lesion that was 21 identified at that time should have been 22 biopsied, correct? 23 A. That was my opinion, yes. 24 Q. And are you aware that the patient was 235 1 again seen three months later in May of 1995? 2 A. Yes. 3 Q. And the patient was seen again and had 4 an oral examination again in July of 1995? 5 A. I believe so, yes. 6 Q. Okay. And then the patient was seen 7 in October of 1995 not only by Dr. Rozman but by 8 Dr. Witt, correct? 9 A. Yes. 10 Q. From approximately, starting again in 11 January of 1995, isn't it true that Cathleen 12 Lane had oral examination by trained physicians 13 or dentists approximately every three months or 14 less? 15 A. I believe so, yes. 16 Q. Okay. Let me ask you, Doctor, does 17 dysplasia typically go through developmental 18 phases? By that I mean from mild to moderate 19 and then to severe. 20 A. I don't think that that's typical. I 21 think that that may happen, but I think that 22 also dysplasia when -- well, let me say -- 23 likely it does. But when it first becomes 24 clinically evident, those initial stages may 236 1 have been bypassed. But I also think that there 2 are situations in which severe dysplasia may be 3 the first manifestation of change in the mucous 4 membrane. 5 Q. Now, Doctor, if the dysplasia is left 6 untreated, would it then progress to cancer? 7 A. It may well, yes. 8 Q. Is that the typical progression? 9 A. Yes. That's not to say that it 10 happens every time, but it certainly is the risk 11 of having dysplasia. 12 Q. Okay. Dr. Bogdasarian, have you heard 13 of Dr. Jack Gluckman? 14 A. Yes, I have. I think he's the 15 chairman of otolaryngology at the University of 16 Cincinnati. 17 Q. Are you familiar with any of his 18 publications? 19 A. Not in detail, no. 20 Q. Generally? 21 A. No. 22 Q. Are you familiar with any textbooks 23 written by Dr. Gluckman or edited by 24 Dr. Gluckman? 237 1 A. Not offhand. 2 Q. Okay. Thank you, Doctor. 3 A. Thank you very much. 4 MR. MAZANEC: Can everyone hear me? 5 MR. HIRSHMAN: Clear as a bell. 6 MR. MAZANEC: Okay. I'll try to talk 7 right into the microphone. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 238 1 EXAMINATION 2 BY MR. MAZANEC: 3 Q. Doctor, I'm Tom Mazanec. I represent 4 Dr. Witt, and I have a very few follow-up 5 questions for you. Feel free to look at your 6 report. 7 My understanding from looking at 8 page 9 of your report is that among your 9 criticisms of Dr. Witt are: Number one, he 10 didn't explain the results of the biopsy 11 adequately to Mrs. Lane, correct? 12 A. That's correct. 13 Q. Number two, he didn't follow up 14 properly with her, correct? 15 A. Correct. 16 Q. And then the third one is that he 17 didn't tell the other caregivers about the 18 biopsies that were taken in October of 1995, 19 correct? 20 A. Correct. 21 Q. Are there any others besides those 22 three? 23 A. No. 24 Q. As far as the first one, explaining 239 1 the biopsy, I think you testified earlier this 2 evening that a negative biopsy can mean two 3 different things in the medical community, do 4 you recall that? 5 A. Yes. 6 Q. Okay. And one of the meanings was 7 that it's negative for cancer. The other 8 meaning was that the tissue was fine; there was 9 no problems with the tissue -- 10 A. Correct. 11 Q. -- is that correct? So in this 12 particular case, the biopsies of October 10th 13 could properly be interpreted as a negative 14 biopsy using the definition there was no cancer, 15 is that right? 16 A. Yes. 17 Q. Okay. Now, as far as explaining these 18 biopsies to Mrs. Lane, is it your opinion that 19 because of her precancerous condition and other 20 cancers she had, that Dr. Witt had to go beyond 21 just saying it was a negative biopsy but explain 22 the details of these biopsies to her? 23 A. Yes. And I'll just interrupt and say 24 that I think that Dr. Witt should have been the 240 1 one to discuss these biopsies with Cathleen Lane 2 rather than some other person, nonphysician 3 person in the office. 4 Q. Okay. I appreciate that. But you 5 expected Dr. Witt after seeing these biopsies to 6 explain the detail of the biopsies to Mrs. Lane? 7 A. Correct. 8 Q. In other words, that one of the 9 biopsies, the biopsy on the floor of the mouth, 10 contained the severe dysplasia we've been 11 talking about? 12 A. Yes. 13 Q. I want to discuss for a second the 14 failure to follow up. I believe you testified 15 earlier that given the biopsies of October 10th, 16 1995, it would be appropriate to monitor this 17 condition as opposed to having immediate 18 surgery, is that correct? 19 A. Yes. 20 Q. Okay. And what would monitoring this 21 condition entail in your opinion? 22 A. In my opinion, monitoring the 23 condition would be to arrange for follow-up 24 examinations every four to six weeks over a 241 1 six-month period at least. And depending on the 2 progress or lack of progress of the lesion at 3 that time, either to repeat the biopsy or to 4 remove the lesion or to continue to follow up. 5 Q. Okay. So as part of this follow-up, 6 one of the things would be to rebiopsy the same 7 area? 8 A. Yes. 9 Q. And that would be to see if the lesion 10 is progressing? 11 A. Yes. 12 Q. Okay. At what point in time would it 13 be beneath the standard of care not to remove 14 the lesion? 15 A. I believe that the lesion -- I believe 16 that it would be beyond the standard of care or 17 below the standard of care not to remove the 18 lesion if the lesion became enlarged or 19 certainly if any malignant deterioration 20 occurred or if there were worsening of the 21 dysplasia. 22 Q. Okay. I'm not sure if I understood 23 your answer, perhaps you can help me. You said 24 one thing about the worsening of the dysplasia. 242 1 A. Yes. In other words, if the lesion 2 appeared to become more threatening on a repeat 3 biopsy, then it's my opinion that the lesion 4 should be removed. 5 Q. By more threatening, do you mean 6 growing? 7 A. Growing or appearing more dysplastic 8 or more -- tending more toward a malignant 9 appearance. 10 Q. Okay. So you're saying if the lesion 11 were not yet malignant, there comes a point in 12 time that it still should have been removed? 13 A. Yes. 14 Q. Okay. Well, based upon the lesion as 15 reported in the biopsy of October 10th, based 16 upon the subsequent records '95 and '96, do you 17 have an opinion as to when this lesion would 18 have grown to that point? 19 A. The lesion grew to that point 20 somewhere between October 10th of 1995 and 21 December of 1995. 22 Q. Okay. And you can't pin it down any 23 more than that? 24 A. Well, I think that the -- in my 243 1 opinion, at any point had a repeat biopsy been 2 done, that the lesion would have been seen to 3 be, either contained areas of malignancy or to 4 have worsening dysplasia, and at almost any time 5 after October 10th, 1995, that lesion should 6 have been removed. 7 Q. Okay. And let's maybe change 8 something here. If the lesion were followed up, 9 let's say, the four to six weeks you're talking 10 about from October 10th, and it's biopsied again 11 and there's no change, then you're still in a 12 wait-and-see mode? 13 A. That would be one method of dealing 14 with it, yes. 15 Q. Okay. But it wouldn't be beneath the 16 standard of care to continue and wait and see at 17 this point in time? 18 A. No. 19 Q. Okay. Now, there were two biopsies 20 done in October by Dr. Witt, is that correct? 21 A. Yes. 22 Q. One was on the tip of the tongue? 23 A. Yes. 24 Q. And that was -- there was no problem 244 1 with that biopsy. There was no dysplasia, is 2 that correct? 3 A. That's correct. 4 Q. Okay. 5 A. No, I think we actually just looked at 6 that report, and it did show dysplasia. 7 Q. That's what I wanted to ask you about. 8 I was confused. So it's your testimony that the 9 one on the tip of the tongue showed dysplasia? 10 A. Yes. I think we went through that, 11 that it did show severe dysplasia as well. My 12 initial impression was also that it didn't. But 13 when I was showed the report, I think it did 14 confirm that both areas showed severe dysplasia. 15 Q. Now, that dysplasia on the tip of the 16 tongue, in your opinion is that related to the 17 later cancer that was operated on in her tongue, 18 the left side of her tongue? 19 A. I'm not certain. But if it were -- I 20 think I'd have to answer that by saying that -- 21 because I don't have a report, at least that I 22 can recollect, that gives me the exact location 23 of that subsequent cancer, that is the one that 24 was treated in October of -- or diagnosed in 245 1 August and treated in October of 1996. But if 2 it were in the same location, then I believe 3 that it may well have been related, yes. 4 Q. Okay. But you're not testifying here 5 today that it is related? 6 A. No. 7 Q. Okay. You're saying you would need 8 additional information? 9 A. Yes, I don't know the answer to that. 10 Q. Okay. Now, the cancer that was 11 ultimately operated on in her -- I guess the 12 floor of her mouth on the left side. 13 A. Yes. 14 Q. Is that a fair way for me to 15 characterize it as the location? 16 A. Well, I think it's -- it involved 17 primarily the gum and the jaw, but I think there 18 was some in the floor of the mouth as well. 19 Q. Now, the cancer that was ultimately 20 operated on in the gum and the jaw, as you 21 indicated, and in the floor of the mouth, is 22 that in an area that's the same as or different 23 than the biopsy that Dr. Witt performed on 24 October 10th? 246 1 A. My understanding is that it's in the 2 same area. 3 Q. Okay. Wasn't Dr. Witt's biopsy of the 4 inside of the mouth under the tongue? 5 A. I believe it was, yes. 6 Q. The cancer that was actually operated 7 on, wasn't that biopsied and diagnosed on the 8 cheek side of tooth number 19? 9 MR. HIRSHMAN: Are you talking about 10 the operation or the biopsy? 11 MR. MAZANEC: First the biopsy. 12 A. I believe that the biopsies taken by 13 Dr. Goldberg were taken from actually the dental 14 socket itself and from I believe the cheek side, 15 yes. 16 Q. Okay. And those are different than 17 the area that Dr. Witt biopsied, is that 18 correct? 19 A. Those biopsies were taken from a 20 slightly different location, yes. 21 Q. Okay. 22 A. Very close to the area, but slightly 23 different. 24 Q. Okay. Is there any significance to 247 1 the fact that the areas were close together? 2 A. Yes, because I believe that these were 3 all one in the same tumor. 4 Q. Okay. Now, Doctor, I'm trying to 5 understand this lady's picture as far as these 6 surgeries are concerned. 7 Let's assume for the sake of my next 8 couple of questions that the surgery would have 9 been performed when you suggested it, when this 10 dysplasia became worse, okay? 11 A. Yes. 12 Q. Can you state with certainty that 13 ultimately the cancer would not have reoccurred 14 as it ultimately did . . . 15 MR. HIRSHMAN: We missed a lot of 16 that. 17 MR. MAZANEC: I'm sorry. That was a 18 bad question anyway. I'll start over again. 19 Let's assume that the surgery would 20 have been performed when you suggested it, 21 Doctor, after the dysplasia got a little bit 22 worse, okay? 23 A. Yes. 24 Q. Would her ultimate outcome have been 248 1 different than it was? 2 A. More likely than not, yes. 3 Q. Okay. More likely than not. Can you 4 state with certainty that it would have been? 5 A. Yes. 6 Q. Okay. 7 A. To a reasonable degree of medical 8 certainty. 9 Q. Of course. And that is because of the 10 early detection? 11 A. And early treatment, yes. 12 Q. And early treatment. Even assuming 13 the early treatment as you suggested, what is 14 the, I guess, possibility or probability of a 15 cancer recurring in this same area? 16 A. My opinion would be that the 17 possibility would be there, but the probability 18 would be low. 19 Q. By low, you mean what? 20 A. In the region of 5-percent chance. 21 Q. Okay. Thanks, that's all I have. 22 MR. TRAVIS: I guess we're done. 23 (The reading and signing was waived.) 24 (Deposition conclude at 8:58 p.m.) 249 1 C E R T I F I C A T E 2 3 I, Maryellen Coughlin, a 4 Registered Professional Reporter and Notary 5 Public of the State of Massachusetts, do hereby 6 certify that the foregoing is a true and 7 accurate transcript of my stenographic notes of 8 the deposition of JOHN R. BOGDASARIAN, M.D., who 9 was first duly sworn, taken at the place and on 10 the date hereinbefore set forth. 11 I further certify that I am 12 neither attorney nor counsel for, nor related to 13 or employed by any of the parties to the action 14 in which this deposition was taken, and further 15 that I am not a relative or employee of any 16 attorney or counsel employed in this case, nor 17 am I financially interested in this action. 18 THE FOREGOING CERTIFICATION OF 19 THIS TRANSCRIPT DOES NOT APPLY TO ANY 20 REPRODUCTION OF THE SAME BY ANY MEANS UNLESS 21 UNDER THE DIRECT CONTROL AND/OR DIRECTION OF THE 22 CERTIFYING REPORTER. 23 24 MARYELLEN COUGHLIN, RPR