0001 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO 2 CASE NO.: CV 07 622712 3 C. JEAN THOMPSON, ETC., 4 Plaintiff, 5 vs. 6 MARK MELAMUD, M.D., ET AL., 7 Defendants. _______________________________________/ 8 9 10 11 DEPOSITION OF TODD DAVID EISNER, M.D. 12 13 Thursday, August 21, 2008 14 4:03 p.m. - 4:50 p.m. 15 Esquire Deposition Services 16 2385 N.W. Executive Center Drive Suite 120 17 Boca Raton, Florida 33431 18 19 20 21 Reported By: 22 Mary M. Karns, Shorthand Reporter 23 Notary Public, State of Florida 24 Esquire Deposition Services 25 Boca Office Job #935828 0002 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 HOWARD MISHKIND, ESQUIRE, 4 BECKER & MISHKIND CO., LPA Skylight Office Tower 5 1660 West 2nd Street, Suite 660 Cleveland, OH 44113 6 Phone: 216.241.2600 7 8 On behalf of the Defendants: 9 STEVEN J. HUPP, ESQUIRE, 10 BONEZZI, SWITZER, MURPHY, POLITO & HUPP CO., LPA 1300 East 9th Street 11 Suite 1950 Cleveland, OH 44114 12 Phone: 216.875.2767 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 - - - I N D E X 2 - - - 3 WITNESS: DIRECT CROSS REDIRECT RECROSS 4 TODD DAVID EISNER, M.D. 5 BY MR. HUPP 4 6 7 8 9 10 11 - - - E X H I B I T S 12 - - - 13 NUMBER DESCRIPTION PAGE 14 DEFENDANTS' EX. A CURRICULUM VITAE 5 DEFENDANTS' EX. B REPORT, 11/20/07 10 15 16 Exhibits marked prior to the deposition. 17 18 19 20 21 22 23 24 25 0004 1 P R O C E E D I N G S 2 - - - 3 Deposition taken before MARY M. KARNS, Shorthand 4 Reporter and Notary Public in and for the State of 5 Florida at Large, in the above cause. 6 - - - 7 Thereupon, 8 (TODD DAVID EISNER, M.D.) 9 having been first duly sworn or affirmed, was examined 10 and testified as follows: 11 DIRECT EXAMINATION 12 BY MR. HUPP: 13 Q. Please state your full name for the record. 14 A. Todd David Eisner. 15 Q. Dr. Eisner, my name's Steve Hupp. I represent 16 Dr. Melamud in this case. Have you ever had your 17 deposition taken before? 18 A. Yes. 19 Q. It's a question and answer session under oath. 20 Let's try not to talk over each other today. Let me 21 complete my question before you answer it and if you 22 don't understand it, tell me and I'll attempt to 23 rephrase the question; okay? 24 A. Okay. 25 Q. First off, what's your date of birth? 0005 1 A. 11/20/63. 2 Q. And Exhibit A will be your C.V. that I've been 3 provided. It's four pages in length. 4 A. Okay. 5 Q. Is that a true and accurate copy of your C.V. 6 or do we have to update it? 7 A. It is accurate, yes. 8 Q. Are you currently in private practice? 9 A. Yes. 10 Q. And how long have you been in private 11 practice? 12 A. Since 1995. 13 Q. You completed your gastroenterology fellowship 14 in what year? 15 A. 1995. 16 Q. And that was at Cornell University? 17 A. Yes. 18 Q. And that's where you graduated from medical 19 school as well? 20 A. No. Medical school was State University of 21 New York at Stony Brook. 22 Q. Your residency was also at Cornell? 23 A. Correct. 24 Q. And your undergraduate degree was where? 25 A. Brandeis University. 0006 1 Q. And you are Board certified in 2 gastroenterology? 3 A. Yes. 4 Q. And internal medicine? 5 A. My internal medicine I did not recertify after 6 ten years, but gastroenterology is good now until 2015. 7 Q. Are you in the full-time practice of 8 gastroenterology? 9 A. Yes. 10 Q. 100 percent of your time is spent in 11 gastroenterology? 12 A. Yes. 13 Q. Can you break down your practice in terms of 14 what types of gastroenterology you practice? 15 A. General gastroenterology. I'm in a group of 16 five other gastroenterologists. We go to two hospitals, 17 one surgery center, see all types of patients, down here 18 a large geriatric-type population, but probably do 19 procedures three mornings and one afternoon a week, in 20 the office like four to five half days a week and make 21 rounds at the hospital four to five days a week. 22 Q. How many colonoscopies would you say you do on 23 a yearly basis? 24 A. I usually guesstimate 1,000 a year, about 20 a 25 week. 0007 1 Q. And you've been doing 1,000 a year since '95? 2 A. Yes. 3 Q. And how many colonoscopies do you think you 4 did in your training? 5 A. Maybe 500 a year for two years, so another 6 1,000. 7 Q. So around 15,000 colonoscopies you'd say? 8 A. Yes. 9 Q. And how many times did you have the 10 complication of a perforation of the bowel during any of 11 these colonoscopies? 12 A. Either three or four times. 13 Q. And have you ever perforated a bowel during a 14 colonoscopy while in private practice? 15 A. Yes. That was inclusive of that. 16 Q. And when was the last time you had a bowel 17 perforation? 18 A. Maybe about four years ago. 19 Q. And did you recognize all of your bowel 20 perforations during the procedure? 21 A. I would say three were during the procedure 22 and one was shortly thereafter. 23 Q. And how long is shortly thereafter? 24 A. The patient was still at the surgery center, 25 so within an hour. 0008 1 Q. And how was it that you were able to diagnose 2 these perforations? 3 A. Patient was complaining of abdominal pain and 4 had abdominal distension. I got an x-ray and saw the 5 perforation. 6 Q. Do you have any teaching responsibilities 7 currently? 8 A. Currently I am -- Yes and no. I've just 9 started to become a - I'm going to be a clinical 10 instructor in medicine at Florida Atlantic University, 11 so I don't have the official certification yet, but I 12 did all the paperwork and the course work and I'm going 13 to be starting with a medical student in my office on 14 September 10th. 15 Q. And what hospital would that be with? 16 A. Boca Raton Community Hospital. 17 Q. And is it Florida Atlantic University? 18 A. Florida Atlantic, yes. 19 Q. They have a medical school now? 20 A. They have a medical school in conjunction with 21 the University of Miami, but they have their own medical 22 students. This is the second year they have their own 23 medical students. 24 Q. And the articles that you have, the abstracts 25 and the articles that you published on your C.V., are 0009 1 those the last ones you ever published? 2 A. Yes. Those were all during training. 3 Q. You're not working on any other articles now; 4 are you? 5 A. No. 6 Q. And when you teach these, will you be teaching 7 residents or fellows? 8 A. No, they're actually medical students. 9 Q. Medical students? 10 A. Yes. 11 Q. How do you teach medical students 12 gastroenterology? They just follow you around? 13 A. Well, we're going to be teaching them how to 14 take histories, how to do physical examinations. It'll 15 be on patients that have gastroenterology problems, but, 16 you know, we're not going to really be focusing that 17 much in the beginning on the problems, other than just 18 the style. 19 Q. Do you have a subspecialty in 20 gastroenterology? 21 A. No. 22 Q. And in terms of your other types of 23 procedures, aside from colonoscopies, what other types 24 do you do? 25 A. Colonoscopies, upper endoscopies, 0010 1 sigmoidoscopies, ERCP. 2 Q. I marked your report, what we'll refer to as a 3 report, as Exhibit B. 4 A. Okay. 5 Q. Is that an accurate copy of your report? 6 A. Yes, it is. 7 Q. Doctor, did you make any other notes, 8 documents or drafts or any other writings at any point 9 during your review of this matter? 10 A. No. The only writings I have, because I was 11 just looking it over when I re-reviewed it over the 12 weekend, I've circled some things on the depositions, 13 but other than that no notes. 14 Q. Have you ever seen or heard of a patient 15 dying from a perforation after a colonoscopy? 16 A. Yes. 17 Q. When's the last time you heard of that? Aside 18 from this case, which I understand there's a dispute as 19 to the cause, but what other times have you heard about 20 that? 21 A. I've seen patients die immediately after 22 colonoscopy. On one or two occasions patients that 23 have, not that I've done the colonoscopy or not 24 necessarily even that I've taken care of. I'm medical 25 director of a couple of the endoscopy departments, so 0011 1 we'd get involved and have to review all complications, 2 so I've seen, I'd say, at least two over 15 or 14 years 3 where patients have died within hours of colonoscopic 4 perforation. And then also, and one or two of these may 5 have been my partners, elderly patients who had 6 perforations and then had surgery and then died of 7 complications of sepsis and after surgery prolonged 8 hospitalization. 9 Q. The two you had originally mentioned, were 10 those two that died as a direct result of the 11 perforation? 12 A. Yes. 13 Q. And they were both elderly? 14 A. They were both elderly, yes. 15 Q. We should define elderly, I guess. Over 70? 16 A. We can say that. They were both, yes, they 17 were both over 70. 18 Q. And both of them died, you said immediately. 19 I think you used the word immediately. How many hours 20 after the perforation? 21 A. Again, I didn't take care of the patient. I'd 22 be guessing, although educated guessing on the case. I 23 mean, if you want me to guess, I can guess. 24 Q. No, that's fine. You don't have to guess at 25 all. 0012 1 A. I don't know the exact details of the case, 2 but I just do recall. 3 Q. If you don't know an answer to a question, 4 just tell me and we'll move on because you're allowed to 5 say I don't know. 6 A. Okay. 7 Q. How many times have you reviewed medical 8 malpractice cases? 9 A. I review, on average, two to three cases a 10 month over the past ten years. That's about 30 cases a 11 year. 12 Q. And how many for the plaintiff? How many for 13 the defense? 14 A. About 65, 70 percent for plaintiff. Rest for 15 defense. 16 Q. Are all of these cases in Florida? 17 A. No. 18 Q. Are they mostly out of the State? 19 A. The majority are out, but a fair amount in the 20 State of Florida as well. 21 Q. And how was it that you started reviewing 22 cases? 23 A. Initially, the first case I got was my partner 24 had been reviewing a case for a local firm and they 25 needed a quick review. Called the office. He was away 0013 1 and then kind of stayed on that case and then the - that 2 was a defense case, actually. The plaintiff's attorney 3 actually called me on another case after that and then 4 his legal nurse consultant gave my name to another legal 5 nurse consultant. 6 Q. The rest is history? 7 A. It kind of started like that. 8 Q. It doesn't sound like you advertise your 9 services as an expert? 10 A. No. 11 Q. And you never belonged to a service that 12 provides your name to attorneys? 13 A. I have, over the years, had, I don't know what 14 you mean by belong, two companies would call me 15 periodically, although one of them only once or twice in 16 ten years and the other a couple of times a year, saying 17 can we give your name to an attorney on a case. One is 18 TASA and one is JDMD. 19 Q. And do you still get cases from either one of 20 those organizations? 21 A. Not from JDMD. Like I said, I had two of 22 those. None in the past five years. And TASA I've done 23 one case with them this year. 24 Q. Do you maintain a website? 25 A. No. 0014 1 Q. Does your group practice maintain a website? 2 A. No. 3 Q. Do you maintain a website as an expert? 4 A. No. 5 Q. What percentage of your annual income would 6 you say is derived from medical-legal work? 7 A. It varies, but I'd guesstimate five to ten 8 percent. 9 Q. And how many depositions have you given as a 10 medical expert over the years? 11 A. Over the years probably close to 80. It 12 varies. Probably about 80 a year. 13 Q. When was the last time you gave a deposition 14 as an expert? 15 A. A couple of weeks ago. 16 Q. And I assume all the cases you testify in are 17 GI cases? 18 A. Yes. 19 (Brief interruption.) 20 MR. MISHKIND: Off the record. 21 (Proceedings went off the record.) 22 BY MR. HUPP: 23 Q. How much do you charge for today's 24 deposition? 25 A. Deposition is 550 an hour. 0015 1 Q. Is there any minimum? 2 A. Two hours. 3 Q. Did we already pay for that? 4 MR. MISHKIND: Yes, you did. 1,100. 5 BY MR. HUPP: 6 Q. All right. And how about trial testimony? 7 How much do you charge for that? 8 A. Trial testimony is $6,000 for a full day out 9 of the office. 10 Q. That's live testimony? 11 A. Yes. 12 Q. How did Mr. Mishkind get your name in this 13 case, if you know? 14 A. I don't remember how he initially got my name, 15 but we've worked - I've reviewed cases for him over the 16 years. 17 Q. For him personally or other attorneys at 18 Becker & Mishkind? 19 A. Both. 20 Q. And how many cases do you think you've 21 reviewed for Becker & Mishkind in the past? 22 A. I've probably reviewed close to ten cases over 23 the years. 24 Q. Have you reviewed any literature or textbooks 25 in this case at any point up until today? 0016 1 A. No. 2 Q. And do you have certain textbooks that you 3 would deem to be authoritative or reasonably reliable in 4 the field of gastroenterology? 5 A. No, I really wouldn't consider anything 6 offhand authoritative. You know, journal articles are 7 usually pretty good. The classic textbooks that are 8 reasonably reliable would be Sleisenger and Fordtran and 9 Yamada, but those are usually written by fellows and a 10 lot of times things in there, a specific chapter might 11 not be -- 12 Q. Do either one of those -- 13 MR. MISHKIND: Hold on one second, Steve. 14 He's in the middle of answering. 15 BY MR. HUPP: 16 Q. I'm sorry. I didn't mean to interrupt you. 17 A. That's all right. I was saying, so, you 18 know, I wouldn't consider the whole text to be 19 authoritative. 20 Q. When you were doing your fellowship, which 21 text did you use? 22 A. Those were the two we had in fellowship, 23 Sleisenger and Fordtran and Yamada. 24 Q. Do you own any of those texts in your 25 personal library? 0017 1 A. Our office has, I don't know what our updated 2 versions are, but we do have some old textbooks there, 3 yes. 4 Q. And I'm sorry. If I cut you off, Doctor, just 5 tell me. Put your hand up and I'll be quiet. 6 A. That's what he's for. 7 MR. MISHKIND: That's why I'm here. I'll help 8 out every once in a while if that happens. 9 BY MR. HUPP: 10 Q. Let me, if you don't mind, let me see what you 11 have here. 12 MR. MISHKIND: Off the record. 13 (Discussion held off the record.) 14 BY MR. HUPP: 15 Q. Doctor, it's my understanding that you 16 reviewed the three expert reports from the defense in 17 this case? 18 A. Yes. 19 Q. As well as did you read Dr. Bochicchio's 20 report? 21 A. I did not read his report, just his 22 deposition. 23 Q. And you also read Dr. Melamud's deposition, 24 parts I and II? 25 A. Correct. 0018 1 Q. Did you read Mrs. Thompson's deposition? 2 A. I did. 3 Q. And any other depositions that you reviewed? 4 A. No. 5 Q. I think that's about it. 6 A. I don't think there are any. 7 Q. I think that is it. In terms of medical 8 records, you read the autopsy and the South Pointe 9 medical records? 10 A. Yes. 11 Q. And you also reviewed, looks like, Dr. 12 Melamud's records and the Shaker Heights EMS records? 13 A. Yes, and the death certificate as well. 14 Q. And the death certificate, okay. So now is 15 that everything you reviewed in this case up until 16 today? 17 A. Yes. 18 Q. Do you know Mr. Martin Poleski? 19 A. No. That's your gastroenterologist? 20 Q. Gastroenterologist from Duke? 21 A. No. 22 Q. Have you ever read any of his writings or 23 anything? 24 A. No. 25 Q. Ever heard of his name? 0019 1 A. No. 2 Q. In terms of your opinion that you expressed in 3 your report, Exhibit B, is it your opinion -- Well, let 4 me rephrase that. I'm going to ask a very specific 5 question, Doctor. I want you to assume, based on Dr. 6 Melamud's deposition, that he was only told that the 7 patient was having bloating and could not pass gas. 8 Assuming that was all that Dr. Melamud was told by Mr. 9 Thompson, is it your opinion that, based under those 10 circumstances, the standard of care still required Dr. 11 Melamud to send Mr. Thompson to the hospital? 12 MR. MISHKIND: Before he answers let me just 13 show an objection to that hypothetical, but go 14 ahead and answer the hypothetical. 15 THE WITNESS: Yes. 16 BY MR. HUPP: 17 Q. So even if you were to believe Dr. Melamud's 18 testimony about the bloating and about the inability to 19 pass gas, you still believe during that conversation the 20 standard of care required him to send Mr. Thompson to 21 the emergency room? 22 A. Yes. 23 Q. Why? 24 A. This gentleman's colonoscopy had been done a 25 good ten hours before. He was not having any complaints 0020 1 when he left the endoscopy department that morning and 2 ten hours later he's calling with abdominal bloating. 3 You have to be concerned. 4 As Dr. Melamud says in his deposition, that, 5 you know, if it happened right away, and I would give 6 him that. If the guy called that morning, early 7 afternoon, give him an hour or two. Tell him to do a 8 few things to help alleviate the gas. But this had been 9 going on for ten hours and patients need to be getting 10 better if things are normal, as opposed to getting 11 worse. 12 So I'd have a very high index of suspicion as 13 to why somebody would call with abdominal bloating ten 14 hours after a colonoscopy and be concerned that 15 something is going on and would want that patient to be 16 evaluated to rule out, as Dr. Melamud says, the thing 17 that we all feared, perforation. 18 Q. Have you ever had the experience of someone 19 calling you ten to twelve hours after a colonoscopy? 20 A. Yes. 21 Q. Have all of those patients had perforations? 22 A. No. 23 Q. What types of things do they tell you ten to 24 twelve hours after a colonoscopy? 25 A. You know, it could be many things. Patients 0021 1 can be nauseous and have vomited and you're worried 2 about a reaction to anesthesia. Patients can have 3 abdominal pain and you want to rule out perforation. 4 They can have distension alone. They can have fever. I 5 mean, there are many things that people can complain 6 about. 7 Q. And you've had all of those things related to 8 you during conversations ten to twelve hours after a 9 colonoscopy? 10 A. Right. Again, over a ten year period, a few 11 times, yes. 12 Q. And what did you do in response to those 13 complaints? 14 A. Depending, again, if you're saying ten to 15 twelve hours, the patient will be sent to the emergency 16 room. Most of the time patients are going to call 17 sooner and they'll come to the office and be evaluated 18 before, but if they're calling after hours that even 19 more increases your index of suspicion. 20 Q. Given just the bloating and the inability to 21 pass gas, are those complaints consistent with a 22 perforation? 23 A. They may be. They can be, certainly. 24 Q. Why do you say that? 25 A. Again, abdominal bloating that was not present 0022 1 after a colonoscopy and has developed over the hours 2 leading up to ten hours later can be significant in that 3 intra-abdominal air has come out of the colon and is now 4 in the intra-abdominal cavity and that certainly can be 5 consistent with a perforation. 6 Usually patients after colonoscopy will have 7 improvement. You know, we put a lot of air in during 8 colonoscopy. We try to remove as much air as possible. 9 It's not always successful because a lot of times you're 10 putting air up and it gets up into the small intestine 11 as well. But I think the key, and the key thing you 12 always ask the patient is, too, and again, not every 13 patient is sent because if you ask the patient how do 14 you feel now compared to five hours ago and they say I'm 15 feeling better, but I'm still a little distended, but 16 then you're wondering, well, why are you calling me now? 17 Why didn't you call five hours before. 18 So there's a lot that goes into the 19 conversation. But if the patient is not getting better 20 and is worse, then that is a worrisome sign that you 21 need to pursue further and it's very easy to get an 22 x-ray to rule out perforation. 23 Q. Just a plain film, a KUB? 24 A. A flat and an upright. And then, you know, 25 depending on the physical examination by either you or 0023 1 the emergency doctor, if the x-ray is negative then you 2 may sometimes get a CAT scan to pick up the perforation. 3 Q. I'm assuming that if Mrs. Thompson's testimony 4 were correct about the pain and the other things that 5 were related to Dr. Melamud, obviously you would agree 6 that he should have been sent to the emergency room? 7 A. Correct. 8 Q. Looking at the case, obviously in retrospect, 9 if Mr. Thompson had a perforation, why was it that he 10 continued to lay in bed and watch TV? 11 MR. MISHKIND: Let me just show an objection 12 because I'm not sure of the time period that you're 13 talking about, if you could put it in more of a 14 context, or if you want the question answered as 15 presented, that's fine. 16 BY MR. HUPP: 17 Q. Let me lay a foundation. Let me put it this 18 way. If Mrs. Thompson was deposed and said that after 19 the telephone call with Dr. Melamud her husband, we'll 20 get to the enema issue in a minute, did the enema, but 21 then he laid in bed and watched television, does that 22 sound like someone with a perforation, in your 23 experience? 24 A. It can. I mean, a perforation, you know, you 25 can have a lot of pain with a perforation, but again, 0024 1 when you call the doctor you're going to take the 2 doctor's advice and listen what to do. The doctor said 3 take an enema, which, again, we can get to that, I 4 totally disagree with that, so the patient is not 5 educated. Even if he is educated I don't, you know, 6 expect him to know as much as the doctor would. 7 He would, you know, from a patient's 8 standpoint you could think that the patient's thinking 9 I'm going to take this enema and see what happens, see 10 how I feel. And I know when I'm uncomfortable I usually 11 try to pass time by watching TV, so I don't know. 12 Q. Let's get the enema issue out of the way. 13 Obviously it's your opinion, as you expressed, that Dr. 14 Melamud should not have recommended an enema for Mr. 15 Thompson? 16 A. Correct. 17 Q. Why not? 18 A. For multiple reasons. Number one, enemas do 19 not help with relieving gas. They will help with 20 relieving stool. So if somebody has stool in the 21 rectum, that is when an enema will work, otherwise you 22 can give oral laxatives to move things down further. If 23 there's stool in the rectum, that's an indication for an 24 enema. 25 This guy was just cleaned out with a 0025 1 colonoscopy. You know that there's no stool in there, 2 other than maybe a little bit of liquid stool, so 3 there's really no reason to give an enema, so, number 4 one, it's not going to work to help relieve gas. 5 Number two, enemas in suspected perforation 6 would be contraindicated. If you buy any enema bottle 7 at the pharmacy it's going to say do not use with 8 abdominal pain or perforation. You know, if we do 9 colonoscopies in patients and we don't complete the 10 colonoscopy, sometimes you're going to send the patient 11 for a barium enema after the colonoscopy's complete. 12 The radiologist will refuse to do a barium 13 enema in that setting if you've removed a polyp because 14 just from the force of inserting the enema and squirting 15 the enema up you're putting air in and liquid. That 16 can, if there's not a full perforation, it can extend a 17 full perforation. So, number one, it wouldn't work and, 18 number two, it'd be relatively contraindicated if 19 perforation is suspected. 20 Q. The perforation in this case was in the rectal 21 sigmoid area? 22 A. Yes. Descending rectal sigmoid, yes. 23 Q. How large of a solution of a Fleet's enema 24 would there be, 50, 100 cc's? 25 A. Yes. 0026 1 Q. 50 or 100 or more? 2 A. Probably not quite 100. Probably 50. 3 Q. And if you inserted the entire enema in Mr. 4 Thompson, would there be sufficient fluid to get into 5 the area of the perforation? 6 A. It could, but again, that wouldn't really be, 7 you know, it would be more the force of when you're 8 squirting the stuff out and you're sending pressure up 9 there, so it possibly could, but again, there'd be no 10 benefit of an enema if, you know, there's no stool in 11 the colon. 12 Q. In terms of the perforation, it was a .6, I 13 think? 14 A. Six millimeter. 15 Q. You could look or, yes, better way to say it, 16 six millimeter perforation. That type of perforation, 17 in your experience, would that close over, the actual 18 hole, or would it - I mean, it wouldn't remain as a six 19 perforation hole; right? The muscle layers and the 20 colon would close down on the area? 21 A. Again, it depends on the timing. I mean, 22 sometimes perforations can, if they're smaller than 23 that, can just seal off. So in other words, usually not 24 perforations induced by colonoscopy, but patients can 25 have diverticulosis and have a perforation and the 0027 1 perforation can kind of wall off in time. It becomes, 2 it's like a micro perforation that walls off. 3 Typically, colon perforations will not 4 spontaneously seal off. And again, perforation at the 5 time it's done, sometimes it can enlarge over time and 6 it may look larger at autopsy. Sometimes it may look 7 smaller if the colon kind of shrivels up, so that's how 8 I would answer that question. 9 Q. What caused the perforation in this case? 10 A. I believe it was most likely the polypectomy. 11 Q. And the polypectomy was done by a, I guess, 12 would you call it a hot forceps? 13 A. In this case it was hot. There's many ways to 14 do it. In this case it was a hot biopsy polypectomy. 15 Q. Do you use that technique as well? 16 A. Occasionally, yes. 17 Q. Could that technique cause a delayed 18 perforation? 19 A. It can, yes. 20 Q. And explain the physiology or anatomy of a 21 delayed perforation with a hot forceps. 22 A. A delayed perforation can occur because you're 23 burning the wall of the colon and then the colon just 24 thins out. You get like a white artifact on the wall of 25 the colon. You get burning and a little bit of necrosis 0028 1 and then over time that necrotic area can, where it's 2 very thin, can open up and cause perforation. 3 Q. So any idea when in this case the hole 4 actually opened up? 5 A. Yes. I think more likely than not it happened 6 at the time of colonoscopy, but it would not be unusual 7 if it happened within a few hours after the colonoscopy 8 as well. 9 Q. That's what I'm trying to find. If it 10 happened as a delayed perf, how many hours? 11 A. I'd say maybe four or five hours afterwards. 12 I mean, again, I don't think anybody's going to be able 13 to tell you when the perforation actually occurred, but 14 we know it was present on autopsy and we know that he 15 had at the x-ray that it was present as well. 16 Q. Did you see the photographs that were attached 17 to Dr. Melamud's first deposition? They were portions 18 of medical records in which there were photographs. 19 A. Yes. 20 Q. Could you turn to those, please? I know 21 they're not in color. 22 A. They're not great. 23 MR. MISHKIND: I have the color ones. I don't 24 know if you want to use those. 25 MR. HUPP: Yes. If you have the color ones, 0029 1 Howard, I would appreciate it. Just let him see 2 them. 3 MR. MISHKIND: Actually, these are the 4 autopsy ones. 5 MR. HUPP: I didn't think we had colors of 6 this. 7 MR. MISHKIND: Off the record. 8 (Discussion held off the record.) 9 BY MR. HUPP: 10 Q. Showing you, Doctor, the portion of the 11 medical records, the photographs taken by Dr. Melamud 12 during his colonoscopy, do you take photographs such as 13 those? You're familiar with those; aren't you? 14 A. Yes. 15 Q. And those photographs attempt to document the 16 polyps that he was going to remove. Is that the 17 purpose? 18 A. Yes. 19 Q. Would you agree with me that, based on at 20 least the limited view you can see there, that the area 21 where the polyps were removed is completely clear of any 22 stool? 23 MR. MISHKIND: I'm going to object only 24 because we're looking at a black and white and I'm 25 not really sure it's fair. 0030 1 MR. HUPP: I tried to qualify it. 2 MR. MISHKIND: Yes, right. I mean, if he can 3 answer it, fine. 4 THE WITNESS: I don't think you can really 5 answer it. I mean, I don't doubt that if he says 6 that there wasn't stool, there wasn't, but, I mean, 7 it's hard to say if this brown is stool and the 8 black, I mean, you can't tell from the pictures. 9 BY MR. HUPP: 10 Q. Dr. Melamud's testimony was that Mr. 11 Thompson's colon was very clean, that he had completed 12 his bowel prep and had a very clean colon. Would you 13 have any reason to dispute that? 14 A. I remember something there may be a little bit 15 of liquid brown, but not, right, it was considered to be 16 a good prep. 17 Q. If you're going to do a polypectomy, do you 18 insert any saline through the scope to further clean the 19 area? 20 A. You may. If you can't, you know, if there's 21 some stool or residue over the area, you may try to 22 clean it to get a better look. Sometimes you do. 23 Sometimes you don't. 24 Q. Do you clean it in order to actually finish or 25 complete the polypectomy? 0031 1 A. Do you insert saline to complete the 2 polypectomy? 3 Q. To further clean the area prior to performing 4 the polypectomy? 5 A. Again, if you can't see then you're going to 6 inject some saline through the hole. And for other 7 cases sometimes you may actually inject saline into the 8 wall of the colon to raise the polyp to help you see it. 9 Q. If Mr. Thompson had bowel prep and hadn't 10 really eaten any solid foods during the day, you would 11 expect his colon to be clean at the time he called Dr. 12 Melamud ten to twelve hours after the procedure; right? 13 A. Clean as far as, I mean, the gastrointestinal 14 tract is always producing secretions and you can have 15 stool formation even by just ingesting liquids, so you'd 16 expect over 12 hours, especially if somebody's having 17 liquids, to have some residue in the colon, but you 18 wouldn't have solid stool, which is why there'd be no 19 reason to give an enema. 20 Q. As you probably saw in Dr. Bochicchio's 21 deposition, I asked him a whole slew of questions 22 concerning the indications and everything else 23 concerning the colonoscopy? 24 A. Correct. 25 Q. Maybe to short-circuit this a bit, I'm 0032 1 assuming it's your opinion that Dr. Melamud met the 2 standard of care up until the point of the telephone 3 call. Would that be fair to say? 4 A. That is correct. 5 Q. So everything he did both before, during or 6 after the colonoscopy, up until the moment of the 7 telephone call, Dr. Melamud met the standard of care; 8 correct? 9 A. Correct. 10 Q. Do you have any other opinions how Dr. Melamud 11 breached the standard of care aside from not sending him 12 to the emergency room or the enema issue? 13 A. No. 14 Q. Have you personally ever, or anyone you know, 15 ever recommended an enema for a patient post 16 colonoscopy? 17 A. No. 18 Q. Is there a, I don't want to put words in your 19 mouth -- 20 A. Actually, I take that back. I mean, again, 21 it's unrelated to your question really. I just don't 22 want to be taken out of context, but there are plenty of 23 times where we attempt to do a colonoscopy on patients. 24 We may put the scope in and just not get far at all 25 because the colon is full of stool and then we will 0033 1 re-prep the patient to do the colonoscopy the following 2 day and in that situation we would recommend an enema to 3 clean out the colon because we haven't really put any 4 air in. We haven't gone too far and the prep was 5 inadequate. 6 So I'd say in patients that have an inadequate 7 preparation where they have solid stool in the colon 8 and, you know, no biopsies were taken and we never, you 9 know, no polyps removed, in those cases enemas would be 10 recommended after colonoscopy. 11 Q. Now, let's get back to Mr. Thompson, after 12 speaking with Dr. Melamud, did not call Dr. Melamud 13 back. You're aware of that; correct? 14 A. Correct. He did the one phone call, right. 15 Q. And Mrs. Thompson admits that Dr. Melamud said 16 if you're not better, call back later, and he didn't. 17 The patient chose not to call back later. Do you agree 18 with that? 19 MR. MISHKIND: Objection to the form of the 20 question. 21 THE WITNESS: It was my understanding, he did 22 not call back later, but it's my understanding that 23 he called. He got instructions and he was 24 implementing the instructions from the doctor and 25 giving time for the enema to work. 0034 1 BY MR. HUPP: 2 Q. When you have a patient who's complaining of 3 bloating, would you ever have them try to walk or move - 4 try to move their bowels during a period of time prior 5 to coming to the emergency room? 6 A. Well, again, as I said before, yes. If we do 7 a colonoscopy at 7:00 in the morning, patient gets home 8 by 9. They're calling at 10, 11:00. They're still 9 uncomfortable. In that situation, yes. But in the 10 situation where the patient was okay and now ten or so 11 hours later is calling, because your index of suspicion 12 has to rise at what has happened now. The patient was 13 not complaining all day. The patient was fine. 14 Because typically patients will have bloating 15 and even abdominal discomfort after a colonoscopy. You 16 go into the recovery area. They're a little distended 17 there. You may watch them making sure they're passing 18 gas. If not, you may just get an x-ray there to see. 19 And then once that patient leaves, again, as we said, as 20 I said to you before, you'd expect them to continue to 21 get better throughout the day. The air has passed. The 22 belly gets a little softer. 23 But in this case it's different because there 24 were no complaints up until ten hours after the 25 procedure and it wasn't like this is an inpatient in the 0035 1 hospital where the nurse is going in the room a bunch of 2 times and checking on the patient. This is someone who 3 took the initiative to make the phone call ten hours 4 after the colonoscopy and your index of suspicion has to 5 be higher in a patient such as that. 6 Q. Are you looking at this case prospectively or 7 retrospectively? 8 A. Well, obviously I wasn't there, so I'm looking 9 at it retrospectively, but, you know, prospectively same 10 thing. Again, this is what you're taught. The one 11 thing I remember, well, I do remember a lot of things, 12 from training is this one professor saying you're not 13 remembered by your complications, but how you handle 14 your complications. 15 And again, as Dr. Melamud, you know, says, one 16 of the things that struck me in his deposition was 17 where, when he was asked about it, you know, page 34 in 18 his, I guess, his second deposition, when he's asked if 19 the patient eight, ten, twelve hours after has bloating, 20 are you concerned, and he says, you know, it's the most 21 common complaint after colonoscopy. It's not like I 22 don't pay attention to this complaint. It's something 23 that I do pay attention to. And if this doesn't go 24 away, I will ask the patient to see me right away if 25 it's daytime, or to check into the emergency room if 0036 1 it's after hours. So again, because he says he wouldn't 2 panic, but it's something that you worry about, so.... 3 MR. MISHKIND: Off the record for one second. 4 (Discussion held off the record.) 5 BY MR. HUPP: 6 Q. Just so we're clear, Doctor, the tissue that 7 was removed by Dr. Melamud that he thought was a polyp, 8 which, in retrospect, turned out not to be a polyp, that 9 was not a breach of the standard of care for him to do 10 that; correct? 11 A. Correct. 12 Q. Do we know which of the polyps he removed 13 caused the perforation? 14 A. Well, again, the descending colon was the 15 location of the perforation, so.... 16 Q. Whichever polyp was in that area, I guess, 17 huh? 18 A. Correct. Well, again, he described it as 19 having one polyp in the descending colon, one in the 20 sigmoid and the perforation was seen in the descending 21 colon. 22 Q. Does it matter where a perforation is in terms 23 of your judgment as a physician listening to a patient's 24 complaints? 25 A. No. 0037 1 Q. For instance, if it's in the, you know, the 2 ascending or the hepatic flexure versus the splenic 3 flexure, does that matter at all? 4 A. It does not matter, no. 5 Q. And in terms of the amount of bacterial 6 involvement, is the right colon or the left colon going 7 to have more bacterial involvement or it doesn't really 8 matter? 9 A. It doesn't matter. 10 Q. I'm just going to try to throw this out to 11 you. 12 A. Okay. 13 Q. Did the standard of care require Dr. Melamud 14 to send this patient to the emergency room or could he 15 have tried other interventions prior to sending Mr. 16 Thompson to the emergency room that evening? And again, 17 I just want you to assume the bloating and the inability 18 to pass gas at that point. 19 A. Right. So again, assuming the bloating and 20 the inability to pass gas ten hours after, you know, he 21 could have asked, and again, we don't know exactly what 22 transpired in that conversation, but he could have asked 23 further questions, but at that point in time, as I said, 24 if it was earlier these are recommendations he could 25 have told him to do. You know, use a heating pad, you 0038 1 know, walk around, call back in a half hour. Definitely 2 should not have told him to take an enema. 3 If he got the history that the patient had 4 symptoms earlier and they had been getting better, then 5 he could have said, all right, wait a half hour. Call 6 me back and see how things are going. But the fact that 7 that did not appear to be the case in anyone's testimony 8 that he was getting better, ten hours later this guy 9 needed to be examined and probably have an x-ray. 10 Again, if it was during your office hours, 11 you'd have him come in and you can get a pretty good 12 idea examining somebody if they had a perforation or if 13 you need an x-ray, but since it was 8:00 at night and 14 that wasn't an option, then he needed to go to the 15 emergency room and be evaluated. 16 Q. And it's your opinion that if he had gone to 17 the emergency room, either Dr. Melamud or an emergency 18 medicine physician would have examined him? 19 A. Typically, I would have thought that the 20 emergency doctor would have evaluated him and gotten an 21 x-ray. 22 Q. Within how short or long of a period of time 23 usually? 24 A. Again, if he would have gotten to the 25 emergency room at 8:30, he should have had an x-ray by 9 0039 1 that would have revealed the perforation. 2 Q. And that would have been the upright KUB? 3 A. Flat and upright, yes. 4 Q. And that would have probably, in your opinion, 5 shown free air? 6 A. Yes. 7 Q. What would the treatment be for this 8 perforation at that point if it showed free air? 9 A. If it showed free air, the initial treatment 10 would be to stabilize the patient hemodynamically, so 11 you'd put an IV in. Give him fluids. Assess his 12 respiratory status. Give him antibiotics and consult a 13 surgeon to operate on him. 14 And, you know, as far as how long it would 15 take to get a surgeon in to operate on him, even if he 16 would not have been taken to surgery within, you know, a 17 half hour by the time that he got there, at least once 18 he began to show signs of respiratory failure, he could 19 have been intubated. His airway could have been 20 protected and he could have been supported so that he 21 would have been stable for surgery. 22 Q. Did all of the perforations - did all of the 23 patients with perforations that you caused during 24 colonoscopy all go on to have surgery? 25 A. Yes. 0040 1 Q. Are you aware of any patients with a 2 perforation after colonoscopy that don't require 3 surgery? 4 A. Again, there is some literature on patients 5 that are not great surgical candidates. That typically 6 is going to be more for an upper endoscopy. Colon 7 surgery standard of care really is to operate on the 8 perforations. And again, as we talked about before, 9 it's different as far as iatrogenic or, you know, 10 induced perforations from a colonoscopy. 11 Patients that have diverticulitis, which are 12 micro perforations, that can sometimes be treated 13 medically, you know, nonsurgically, but the literature 14 is very weak for induced perforations during colonoscopy 15 to be treated nonsurgically. 16 Q. Would you classify Mr. Thompson as a 17 middle-aged man versus an elderly man? 18 A. Definitely not elderly. I believe he was 19 what, 50s? 20 Q. 57. 21 A. Certainly middle-aged, yes. 22 MR. MISHKIND: A young man, actually. 23 BY MR. HUPP: 24 Q. And given his other health issues, he would 25 not be what you considered a frail 57-year-old male? 0041 1 A. No, I think he was a healthy, average 57 year 2 old. He had some high blood pressure. He had distant 3 history of seizure disorders, but nothing significant. 4 For our population down here, he'd be a healthy spring 5 chicken. 6 Q. Doctor, have we discussed all of the opinions 7 you hold in this case on the issue of standard of care? 8 A. Yes. 9 Q. Have we discussed all of the ways in which or 10 have you had an opportunity to describe fully all the 11 ways in which you believe Dr. Melamud breached the 12 standard of care? 13 A. Yes. 14 MR. MISHKIND: I'll just object to that 15 question. I may ask questions of him that - I don't 16 want him to be foreclosed from answering questions 17 which are not put in exactly the same way. I think 18 he's indicated the areas that there were standard of 19 care violations, but I may ask him to expound on 20 those in a manner different than what you've said. 21 MR. HUPP: But here's where - it's a little 22 bit of a different question. I know what you're 23 saying. 24 BY MR. HUPP: 25 Q. Aside from what you've already talked about 0042 1 tonight, is there any other reason why Dr. Melamud 2 breached the standard of care? 3 A. No. Again, I think the general breaches were 4 not recommending he go to the emergency room and 5 recommending the enema. I think different variants can 6 be asked on that, but I don't have anything I'm holding 7 back from you in my head related to that. 8 MR. MISHKIND: And, Steve, in fairness to you, 9 one of the things, I mean, I know there's some 10 suggestion relative to the patient not going to the 11 emergency room almost suggesting that there's 12 patient noncompliance or contributory fault by not 13 going to the emergency room and I plan on asking 14 him, based upon the time line, whether or not there 15 was any negligence or whether any contributory fault 16 on the patient's part, along those lines. 17 MR. HUPP: Off the record. 18 (Discussion held off the record.) 19 MR. HUPP: I don't have any further 20 questions. That's all right. Thanks, Doctor. 21 MR. MISHKIND: Just on the record, I mean, 22 obviously I'm going to ask him questions on 23 causation, which he's talked about in his report, 24 that he would have, had he arrived to the emergency 25 room hemodynamically stable, he would have survived. 0043 1 I'm not sure if you -- 2 MR. HUPP: Well, you can't have two experts 3 testify to the same issues. I mean, that's why I 4 wasn't going to even go there. It's your other guy 5 that's the purpose of it. 6 MR. MISHKIND: Well, I'm not sure necessarily 7 that you can't have - there can be crossover. I 8 think you've got three experts that are crossing 9 over on certain issues, but if you -- 10 BY MR. HUPP: 11 Q. Well, let me put it -- All right. We'll 12 handle this very simply. Doctor, you've read Dr. 13 Bochicchio's deposition; correct? 14 A. Correct. 15 Q. Do you share his opinions on the issue of 16 proximate causation? 17 A. Yes. 18 Q. Do you believe that Mr. Thompson died as a 19 result of the perforation of his colon? 20 A. Yes. 21 Q. And why do you believe he arrested when he 22 did? 23 A. Again, I believe that he had a perforation and 24 he had a systemic inflammatory response to the 25 perforation that caused rapid respiratory failure, 0044 1 inflammatory responses and total body failure and that's 2 why he expired, multi organ failure. 3 Q. And when did that process start? 4 A. The process of the systemic inflammatory 5 response? 6 Q. Yes. 7 A. It started at the time of the perforation and 8 progressed throughout the day. 9 Q. And the perforation may have started almost 10 five hours, four to five hours after the colonoscopy, if 11 it were a delayed perforation? 12 A. Right. If it were a delayed perforation, the 13 latest the perforation would have started would have 14 been like say early afternoon. 15 Q. And even if it were a delayed perforation, 16 it's your opinion that that would still be the cause of 17 this man's death? 18 A. Yes. 19 Q. And did you review the autopsy to arrive at 20 your conclusions on the issue of proximate causation? 21 A. Again, the whole chart, the autopsy was 22 reviewed as well, yes. 23 Q. And what was it in the autopsy that made you 24 or permitted you to arrive at the conclusion that he 25 died as a result of his colon perforation? 0045 1 A. Again, nothing in particular related only to 2 the autopsy, but again, looking at the whole chart and 3 the autopsy report, which this autopsy report basically 4 is done at the time of the death before any lawsuits and 5 is an unbiased report and basically the cause of death 6 all leads up to a cardiopulmonary arrest following 7 colonoscopy and polypectomy with perforation of the 8 descending colon, acute peritonitis, leading to anoxic 9 encephalopathy and acute ischemic cerebral infarct. So 10 I took this autopsy to confirm my opinions that the 11 perforation is what started this cascade that led to his 12 death. 13 Q. Is it possible, in your mind, that he suffered 14 a seizure which would have caused his death? 15 MR. MISHKIND: Objection to possible, but go 16 ahead. 17 THE WITNESS: In my mind, I would say no. 18 I'm not a neurologist. I'm not an expert in 19 seizures. Looking at this as a gastroenterologist, 20 I would think it would be very unusual for a guy who 21 had a seizure, the last five years ago, to 22 coincidentally get a seizure after his colon has 23 been perforated and say that the seizure caused his 24 death. 25 So I would agree, my interpretation of the 0046 1 autopsy, being that the perforation, the systemic 2 inflammatory response leading to the, you know, 3 encephalopathy, acute anoxic encephalopathy, caused 4 the seizure, as opposed to the seizure causing the 5 perforation. 6 BY MR. HUPP: 7 Q. Would the perforation, in your mind, have any 8 cause or could the perforation cause a seizure? 9 MR. MISHKIND: Objection, but go ahead. 10 THE WITNESS: Again, a perforation itself 11 would not cause a seizure, but hypoxia from the 12 complications of the perforation could cause a 13 seizure. But again, I'm probably even talking over 14 my head because I'm not a neurologist or a critical 15 care doctor. 16 MR. HUPP: Those are all the questions I 17 have. That's fine. 18 MR. MISHKIND: Okay. We will read the 19 deposition. 20 COURT REPORTER: Did you need this typed up? 21 MR. HUPP: Oh, sure. 22 (Witness was excused.) 23 (Deposition was concluded.) 24 25 0047 1 C E R T I F I C A T E 2 3 THE STATE OF FLORIDA 4 COUNTY OF PALM BEACH 5 6 I hereby certify that I have read the 7 foregoing deposition by me given, and that the 8 statements contained herein are true and correct to the 9 best of my knowledge and belief, with the exception of 10 any corrections or notations made on the errata 11 sheet(s), if one(s) was/were executed. 12 13 Dated this ____ day of _________________, 14 2008. 15 16 17 18 ________________________________ 19 TODD DAVID EISNER, M.D. 20 Job #935828 21 22 23 24 25 0048 1 CERTIFICATE OF OATH 2 3 THE STATE OF FLORIDA 4 COUNTY OF PALM BEACH 5 6 7 I, the undersigned authority, certify that 8 TODD DAVID EISNER, M.D., personally appeared before me 9 and was duly sworn on Thursday, August 21st, 2008. 10 11 12 Dated this 25th day of August, 2008. 13 14 15 16 ____________________________________ MARY M. KARNS, Shorthand Reporter 17 Notary Public - State of Florida My Commission No.: DD762114 18 My Commission Expires April 23, 2012 19 Job #935828 20 21 22 23 24 25 0049 1 C E R T I F I C A T E 2 THE STATE OF FLORIDA COUNTY OF PALM BEACH 3 4 I, MARY M. KARNS, Shorthand Reporter and Notary Public in and for the State of Florida at Large, 5 do hereby certify that I was authorized to and did report said deposition in stenotype; and that the 6 foregoing pages are a true and correct transcription of my shorthand notes of said deposition. 7 I further certify that said deposition was 8 taken at the time and place hereinabove set forth and that the taking of said deposition was commenced and 9 completed as hereinabove set out. 10 I further certify that I am not an attorney or counsel of any of the parties, nor am I a relative or 11 employee of any attorney or counsel of party connected with the action, nor am I financially interested in the 12 action. 13 The foregoing certification of this transcript does not apply to any reproduction of the same by any 14 means unless under the direct control and/or direction of the certifying reporter. 15 Dated this 25th day of August, 2008. 16 17 18 ____________________________________ MARY M. KARNS, Shorthand Reporter 19 Notary Public - State of Florida My Commission No.: DD762114 20 My Commission Expires April 23, 2012 21 Job #935828 22 23 24 25 0050 1 DATE: August 25, 2008 Job #935828 2 TO: Todd David Eisner, M.D. 20988 Olivo Way 3 Boca Raton, FL 33433 4 IN RE: THOMPSON, ETC. vs. MELAMUD, M.D., ET AL. 5 CASE NO.: CV 07 622712 6 Dear Dr. Eisner, 7 Please take notice that on Thursday, the 21st day of August 2008, you gave your deposition in the 8 above-referred matter. At that time, signature was not waived. It is now necessary that you sign your 9 deposition. As a professional courtesy, I am enclosing a 10 condensed copy of your deposition transcript. Also enclosed you will find errata sheets and a signature 11 page, which is contained as page 47 of your deposition transcript. As you read your deposition, any changes or 12 corrections that you wish to make should be noted on the errata sheet(s), citing page and line number of said 13 change. Once you have read the transcript and noted 14 any changes, be sure to sign and date the errata sheet(s), as well as the signature page, and return 15 these pages in the self-addressed envelope that has been provided for your convenience. You need not return the 16 transcript. If you do not read and sign the deposition 17 within a reasonable amount of time, the original, which has already been forwarded to the ordering attorney, may 18 be filed with the Clerk of the Court. If you wish to waive your signature, sign your name in the blank at the 19 bottom of this letter and return it to us. 20 Very truly yours, ___________________________________ 21 MARY M. KARNS, Shorthand Reporter 22 I do hereby waive my signature: 23 _______________________________ TODD DAVID EISNER, M.D. 24 cc: Via transcript: Steven J. Hupp, Esquire 25 Howard Mishkind, Esquire 0051 1 E R R A T A S H E E T 2 IN RE: C. JEAN THOMPSON, ETC. vs. 3 MARK MELAMUD, M.D., ET AL. 4 CR: MARY M. KARNS 5 DEPOSITION OF: TODD DAVID EISNER, M.D. 6 TAKEN: THURSDAY, AUGUST 21, 2008 - JOB NO.: 935828 7 DO NOT WRITE ON TRANSCRIPT - ENTER CHANGES HERE 8 PAGE # LINE # CHANGE REASON 9 _______________________________________________________ 10 _______________________________________________________ 11 _______________________________________________________ 12 _______________________________________________________ 13 _______________________________________________________ 14 _______________________________________________________ 15 _______________________________________________________ 16 _______________________________________________________ 17 _______________________________________________________ 18 _______________________________________________________ 19 _______________________________________________________ 20 _______________________________________________________ 21 _______________________________________________________ 22 Under penalty of perjury, I declare that I have read my deposition and that it is true and correct, subject to 23 any changes in form or substance entered here. 24 DATE:____________________ 25 SIGNATURE OF DEPONENT:_________________________________