0001 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO 2 CASE NO. CV-06-590509 3 JAMES BERRY, etc, et al., ) ) 4 Plaintiffs, ) D E P O S I T I O N ) 5 vs. ) O F ) 6 HELEN S. HAN, M.D., et al., ) J O S E P H ) 7 Defendants. ) G E R A D T S, M. D. ------------------------------ 8 A P P E A R A N C E S 9 For the Plaintiffs: Mr. Ronald A. Margolis 10 Becker & Mishkind Skylight Office Tower 11 1660 W. 2nd Street, Suite 660 Cleveland, Ohio 44113 12 For the Defendants: Mr. William Bonezzi 13 Bonezzi, Switzer, Murphy, Polito, & Hupp 14 1300 East Ninth Street, Suite 1950 Cleveland, Ohio 44114 15 16 17 18 19 20 21 22 23 In Durham, N.C. Reported by: 24 May 8, 2009 Lisa S. Harrington 0002 1 Stipulations -2- 2 S T I P U L A T I O N S 3 It is hereby stipulated and agreed between the 4 parties to this action, through their respective counsel of 5 record: 6 (1) That the deposition of JOSEPH GERADTS, M.D. 7 may be taken on May 8, 2009, beginning at 12:57 P.M. in the 8 offices of DUKE UNIVERSITY MEDICAL CENTER PATHOLOGY 9 DEPARTMENT, located at Duke South, 3081 Meyer, Yellow Zone, 10 3rd Floor, Durham, North Carolina, before Lisa S. 11 Harrington, a Notary Public. 12 (2) That the deposition shall be taken and used as 13 permitted by the applicable Ohio Rules of Civil Procedure. 14 (3) That any objections of any party hereto as to 15 notice of the taking of said deposition or as to the time 16 or place thereof, or as to the competency of the person 17 before whom the same shall be taken, are deemed to have 18 been met. 19 (4) Objections to questions and motions to strike 20 answers need not be made during the taking of this 21 deposition, but may be made for the first time during the 22 progress of the trial of this case, or at any pretrial 23 hearing held before any judge of competent jurisdiction for 24 the purpose of ruling thereon, or at any other hearing of 25 said case at which said deposition might be used, except 26 that an objection as to the form of a question must be made 0003 1 Stipulations -3- 2 at the time such question is asked, or objection is waived 3 as to the form of the question. 4 (5) That the witness reserves the right to read 5 and sign the deposition prior to filing. 6 (6) That the sealed original transcript of this 7 deposition shall be mailed first-class postage or hand- 8 delivered to the party taking the deposition for 9 preservation and delivery to the Court, if and when 10 necessary. 11 12 13 * * * * * 14 15 (PLAINTIFF'S DEPOSITION EXHIBITS NO. 1 - 3 16 MARKED PRIOR TO TESTIMONY) 17 18 19 Whereupon, 20 JOSEPH GERADTS, M.D., 21 having been first duly sworn, 22 was examined and testified 23 as follows: 24 0004 1 DIRECT EXAMINATION BY MR. MARGOLIS: 2 Q Dr. Geradts, my name is Ron Margolis. I'm one of 3 the lawyers representing the Estate of Rhonda 4 Berry. I'm going to be asking you questions today 5 regarding the report that you authored in this 6 case, questions about your background and your 7 expert work. 8 It's my job to make the questions 9 understandable and clear. If at any point you 10 don't understand the question, tell me, because I 11 will rephrase it. I want to rely on the answers 12 you're giving today at trial, and I want to make 13 sure at all times that I'm fair to you and that you 14 have an opportunity to fully explain your answer. 15 If at any point I'm not doing that, can we agree 16 that you'll let me know? 17 A Yes. 18 Q And can we also agree that if you answer a question 19 today, you've understood it, and you've done so 20 with knowledge that I'm going to want to rely on 21 the answers you're giving at a later point in time? 22 A Yes. 23 Q Do you have a file in this case, sir? 24 A I do. 0005 1 Q Has anything been removed from the file? 2 MR. BONEZZI: Yes. 3 MR. MARGOLIS: Can you share with me? 4 MR. BONEZZI: Yes. The W-9, which was 5 copied and sent to me, 'cause we needed it for 6 internal purposes, an extra report, his x-ray 7 report was just a second report in there. And I 8 think that's it. 9 MR. MARGOLIS: Is the report that removed 10 any different than the report that's reflected-- 11 MR. BONEZZI: No. 12 MR. MARGOLIS: --in his exhibit? 13 MR. BONEZZI: No. As--as it turns out, 14 there were just two reports in there. 15 MR. MARGOLIS: Okay. 16 MR. BONEZZI: No. 17 Q Doctor, I want to talk with you a little bit about 18 your expert work. When did you first start doing 19 expert work in the area of medical malpractice 20 cases? 21 A Approximately three years ago. 22 Q And how is it that you came to be involved in doing 23 expert work three years ago? 24 A I'm trying to remember the first case. I believe I 0006 1 was contacted by an attorney who requested my 2 expert opinion. I actually cannot tell you which 3 case that was, but that's how it came about. 4 Somebody had heard about me and my expertise, and 5 they wanted me to become involved in that 6 particular case. 7 Q Sir, you have been in your area of specialization 8 for how many years? 9 A Well, as an attending pathologist, it's been about 10 eighteen years. 11 Q Any--and how long have you been a physician? 12 A I graduated from medical school in 1987, so twenty- 13 two years. 14 Q All right. I guess my question is any reason why 15 for the first dozen or so years of your practice 16 you didn't do expert work? 17 MR. BONEZZI: He was smart. 18 MR. MARGOLIS: Yeah. 19 A Well, I think it takes a little while for somebody 20 to become recognized an--as an expert in a 21 particular area, and so I don't think you can 22 expect anybody to become an expert, you know, fresh 23 out of training. It takes a while until you have a 24 certain name recognition. And that's one of the 0007 1 reasons. Furthermore, I was places where 2 previously it was a bit more difficult to do. 3 Medico-legal consulting here at Duke--the rules are 4 a little bit more relaxed and it's a little easier. 5 Q How many expert cases have you reviewed? 6 A I would say approximately twelve. 7 Q And of the twelve cases that you've been consulted 8 on as an expert, how many on the plaintiff's and 9 how many for the defense? 10 A Plaintiff's end, I believe two or three, and the 11 rest for the defendants. 12 Q All breast cancer cases? 13 A I believe so. 14 Q Who were the plaintiffs' attorneys that you've 15 worked for? 16 A Do you want specific firms, names? 17 Q Whatever you have, sir. 18 A I cannot recall all of them. 19 Q Well, there's two or three. 20 MR. BONEZZI: He's only asking for 21 plaintiffs. 22 Q Just for plaintiffs, sir. 23 A Oh, for plaintiff's? 24 Q For the patients. 0008 1 A That's what--okay. 2 Q For the patients. 3 A Okay. Actually, I believe one of them was from 4 your firm that I was involved in maybe a year ago. 5 So I think you have a colleague by the name of 6 Kulwicki or-- 7 Q Kulwicki. 8 A Yeah. 9 Q Yes. 10 A I helped him with a case about a year ago. And the 11 other one was a case out of Virginia. I'm actually 12 blanking on the name right now. I mean, it's easy 13 for me to-- 14 MR. BONEZZI: 'Cause you said it was Dave 15 Kulwicki. 16 MR. MARGOLIS: Yeah. It was Kulwicki. 17 Q And out of Virginia, do you remember that lawyer's 18 name, sir? 19 A No. I would have to look that up. I'm sorry. 20 Q Would you be able to access that and then 21 communicate that information to Mr. Bonezzi? 22 A Certainly. 23 Q Did you write a report in the Virginia case? 24 A I don't believe I wrote a report. I had some 0009 1 communications back and forth, but I don't think I 2 put anything in writing. 3 Q How many open cases are you presently involved with 4 as an expert? 5 A I believe three. 6 Q And of the three cases that are open, all on behalf 7 of the defense? 8 A No. One of them is the one in Virginia, if it's 9 still open-- 10 Q All right. 11 A --on behalf of the plaintiff. 12 Q Okay. We can agree that the expert work that 13 you've done, the majority of--of it has been for 14 the defense? 15 A Yes. 16 Q Have you ever appeared in court? 17 A No. 18 Q How many depositions have you given in expert 19 cases? 20 A This is my first one. 21 Q Okay. Okay. What is your fees, sir, for your 22 expert work? 23 A Well, as a rule of thumb, I tend to follow the PDC 24 guidelines here at Duke. They can be modified from 0010 1 case to case. Typically it's between--anywhere 2 between five and six hundred dollars per hour, and 3 six hundred dollars per hour for deposition, and I 4 believe it's seven hundred dollars per hour for 5 trial testimony. 6 Q And is there a minimum? I know there have been 7 other experts from Duke that have testified. Is 8 there a minimum of, I think, seventy-five hundred a 9 day? 10 A I don't recall. 11 Q All right. And of the work that--that you generate 12 as an expert witness, a portion of that has to go 13 back to the university, does it not? 14 A No. 15 Q Okay. Can you tell me normally in your cases, in 16 your--where you have done expert witness review, is 17 there a reason why you seem to be doing 18 predominantly more on behalf of the physician than 19 on behalf of the patient? Just the way the calls 20 come in? 21 A Yeah, pretty much. I don't pre-select them, and 22 it's pretty much what comes in, as you say. 23 Q What percentage of your income has been associated 24 with your work as an expert witness? 0011 1 A I think in the last two or three years, it's 2 probably in the fifteen- to twenty-percent range. 3 Q How many hours have you put forth in this case, 4 sir? 5 A Let's see. 6 Q And feel free if you need to look at your file. 7 A It's probably not--probably not in there--the 8 record. I can't give you a precise number. I 9 would estimate approximately fifteen hours, maybe. 10 Q Now I'm handing you what has been previously marked 11 as Exhibit 2. Is that the report that you've 12 authored in this case? 13 A It is. 14 Q And you knew when you drafted that report it was 15 going to be reviewed and relied upon by others? 16 A Yes. 17 Q And you wanted to make it as fair and accurate as 18 you could under the circumstances? 19 A Yes. 20 Q Tell me all of the information that you reviewed 21 prior to authoring the report in this case. 22 A Can I refer back to my-- 23 Q You can refer to whatever it is you need. 24 A Okay. So prior to that opinion, I had reviewed 0012 1 what Mr. Bonezzi had sent me, which includes-- 2 Q May I see that, please? 3 A This? 4 Q Yes. 5 A This is the first packet. 6 MR. BONEZZI: Hang on a sec. For the 7 record--hang on before you start marking things. 8 MR. MARGOLIS: Yes. 9 MR. BONEZZI: For the record, I would 10 object to a review of any material that I have 11 sent, simply because I believe that that is work 12 product. If you wish, we can--if the court so 13 rules that I have to turn everything over to you, I 14 can make copies of it as opposed to taking the 15 originals. 16 MR. MARGOLIS: That's fine. Can I--can I 17 mark them, though? 18 MR. BONEZZI: Why don't you do this? Why 19 don't you-- 20 MR. MARGOLIS: Just inventory them? 21 MR. BONEZZI: Yeah. Why don't you do 22 that? 23 MR. MARGOLIS: Okay. 24 Q If you would, just tell me what it is you--you were 0013 1 provided by defense counsel that you reviewed prior 2 to authoring your report. 3 A Okay. 4 MR. BONEZZI: I think that you should 5 tell him that, too. I--I want to make sure that 6 the record is clear. Prior to Dr. Geradts 7 reviewing this material on behalf of Dr. Han, I 8 come to find out that he had been retained earlier 9 when the first case was filed when Dr. Thompson was 10 a defendant. 11 MR. MARGOLIS: Okay. 12 MR. BONEZZI: And I believe, as Dr. 13 Geradts informed me this afternoon, that Marlena 14 DeSilvio had retained him on behalf of Dr. 15 Thompson. 16 MR. MARGOLIS: Okay. 17 MR. BONEZZI: So with that being said, in 18 all likelihood, there was material that would have 19 been sent to him, also. However, as you know, that 20 case was dismissed. When the case was refiled, Dr. 21 Thompson was no longer a defendant, and whether or 22 not he retained or maintained any of the material 23 that would have previously been sent, I don't know. 24 MR. MARGOLIS: Okay. Fair enough. Thank 0014 1 you. 2 Q Tell me what Mr. Bonezzi's office sent you that you 3 have-- 4 A Okay. 5 Q --reviewed in your work. 6 A I received pathology slides from Mrs. Berry's 7 original needle core biopsy and her subsequent 8 modified record mastectomy, I received an expert 9 opinion letter by Dr. Jennifer Manders, I received 10 expert reports by the following physicians: 11 Kenneth McCarty, Theresa Hayes, David Olive, Paul 12 Tartter, and Michael Yaffee, I received Dr. Han's 13 office note--notes and her deposition transcript, I 14 received clinic notes from August 2009. 15 Q I'm sorry. Clinic notes from August 2009? She 16 deceased, I think, in-- 17 A Two thousand--sorry. This says 2004. 18 Q Okay. 19 A Okay. I received notes from her uterine surgery in 20 September of '04. 21 Q And sir, just so that we're clear, these are all 22 things that you reviewed before March of '09? 23 'Cause the question was things that you reviewed 24 before you wrote your report. 0015 1 A Actually, that's right. And that's, I think, 2 everything. Everything else came after that. 3 Q Okay. Now would you please tell me what materials 4 you would have been provided after writing your 5 report? 6 A I received expert's reports from the following 7 individuals: Michael Diamond, Cosmas Van De Ven, 8 Andrew Zeitman, Michael Lyons, Jennifer Manders, 9 and Mark Graham. 10 Q So you received Dr. Manders' report twice? Would 11 you check and see if it's the same report? 12 MR. BONEZZI: The answer's yes, and the 13 answer's yes. 14 MR. MARGOLIS: Okay. 15 MR. BONEZZI: She's only offered one 16 report. 17 Q The deposition of Dr. McCarty? 18 A I'll come to that. This is Dr. Peskin's 19 deposition. 20 Q Okay. 21 A Dr. McCarty's second-opinion letter dated March 22 31st, 2009. 23 Q Do you know Dr. McCarty? 24 A Not personally. 0016 1 Q Do you know of him professionally? 2 A I do. 3 Q He was at Duke for a period of time? 4 A Yeah, although that was before my time. I really 5 know him more from his writings. 6 Q And do you have an opinion that in his area of 7 expertise, he is a well-respected physician? 8 MR. BONEZZI: Objection. You can answer. 9 Q Based on what you know? 10 MR. BONEZZI: Objection. You may answer 11 if you can. 12 A I would consider him respected. I respect his 13 writings. 14 Q In his area of being a pathologist? 15 A Yes. 16 Q What is that, sir? 17 A This is-- 18 MR. BONEZZI: That's a letter to me. 19 A Yeah. 20 Q Is that the report? 21 A No. 22 MR. BONEZZI: It's a letter to me. 23 MR. MARGOLIS: May I see that? 24 MR. BONEZZI: That is--that is work 0017 1 product. That is something that I asked him to put 2 together. I asked him for some information. 3 MR. MARGOLIS: Well, could I-- 4 MR. BONEZZI: I could have taken it out 5 of the file, but I didn't. 6 MR. MARGOLIS: Well, I--I understand. 7 But let me at least lay a little bit of a 8 foundation. 9 MR. BONEZZI: Go ahead. 10 Q Okay. The item that was a letter that you sent to 11 Mr. Bonezzi-- 12 MR. MARGOLIS: And Bill, we can just have 13 an agreement between us that we can-- 14 MR. BONEZZI: Agree to disagree. 15 MR. MARGOLIS: Yeah. We can call that 16 Exhibit 4, not mark it-- 17 MR. BONEZZI: That's fine. 18 MR. MARGOLIS: --and submit it to the 19 court if need be for in camera inspection purposes. 20 MR. BONEZZI: Yes. 21 MR. MARGOLIS: Okay. 22 Q The--the letter that was sent from you to Mr. 23 Bonezzi, can you tell me the circumstances that 24 surrounded you producing that letter? Was it done 0018 1 at the request of Mr. Bonezzi or his office? 2 A Yes. 3 Q Was it done before or after your report? 4 A After. 5 Q What were you asked to do? 6 A I was asked to review both Dr. McCarty's opinion 7 and Dr. Lyons' opinion and comment on those 8 opinions. 9 Q Did you consider that Exhibit 4, which will be 10 maintained by Mr. Bonezzi, to be in your area of 11 specialization as a pathologist? 12 A Yes. 13 Q And was it in your mind in furtherance of your work 14 and analysis that you had previously done on this 15 case as a retained expert? 16 MR. BONEZZI: Objection. I'm not sure I 17 understand that question. 18 Q It was the letter that you drafted that opined on 19 the opinions of the other folks was in your area of 20 expertise for which Mr. Bonezzi has retained your 21 services in this case? 22 A Yes. 23 Q Okay. Anything else, sir? 24 A The last thing is Dr. McCarty's deposition from 0019 1 earlier this week. 2 Q All right. Did you generate any notes from your 3 review of Dr. McCarty's deposition? 4 A Well, I have some personal notes. 5 Q Okay. I'd like to mark those, if I may, with-- 6 MR. BONEZZI: And I'll object, because 7 that, again, is work product. 8 MR. MARGOLIS: And--and how are you 9 defining "work product"? 10 MR. BONEZZI: Mr. Margolis, I don't 11 believe I have to define work product. But I 12 believe that that was done because I asked him to 13 take a look at the deposition, and we have 14 discussed the information that is contained in Dr. 15 McCarty's testimony and I asked him to put that 16 down on paper for me. 17 MR. MARGOLIS: Okay. 18 Q Is there areas that you disagree with Dr. McCarty's 19 testimony as you reviewed? 20 A I disagreed with some of his opinions. Yes. 21 Q Why don't you tell me, sir, the areas of 22 disagreement that you have per your review of Dr. 23 McCarty's deposition? 24 A Number one, I disagree with his notion that there 0020 1 probably were no metastases to the viscera in 2 September of 2003. 3 Q Where you believe there were mets to the viscera in 4 September of '03? 5 A I believe that the metastases that were detected in 6 the spring of 2005 were already present in 7 September of 2003, specifically the liver, the 8 bone. 9 Q So it's--and Doctor, are you familiar with the 10 legal term "reasonable medical certainty"? 11 A Yes. 12 Q Okay. As I am using it, at least, it means more 13 probable than not. 14 MR. BONEZZI: If I may--and I--and I 15 apologize for interrupting--as opposed to using the 16 term "certainty," I would prefer-- 17 MR. MARGOLIS: Probability? 18 MR. BONEZZI: --"probability." 19 MR. MARGOLIS: That's fine. More likely 20 than not, medical probability. 21 MR. BONEZZI: Thank you. 22 MR. MARGOLIS: Fair enough? 23 Q All right. We can agree, sir, that it is within 24 the realm of medical possibility that in September 0021 1 of '03-- 2 MR. BONEZZI: Probability. 3 MR. MARGOLIS: Yeah. I didn't say 4 "probability." I said "possibility" for a reason. 5 MR. BONEZZI: Okay. 6 Q We can agree that in September of '03, it's 7 medically possible that Rhonda met--Rhonda had no 8 mets to her liver? That's possible? 9 MR. BONEZZI: I'll object. But go ahead. 10 You may answer. 11 A It is possible, but unlikely. 12 Q I understand that's not your opinion, but 13 medically, it's possible? 14 MR. BONEZZI: Objection. You may answer. 15 Q True? 16 A It is possible. 17 Q All right. 18 MR. BONEZZI: Doctor, for the record, so 19 that I don't interrupt, there are going to be times 20 throughout the deposition--and I say this because 21 this is your first deposition--that I will object. 22 The objection is for the record only, and unless I 23 tell you not to answer the question, please feel 24 free to respond to the questions directed to you. 0022 1 Q Now, Doctor, let's stick, if we can, with the mets 2 to the liver that you believe were present in '03. 3 Fair enough? 4 A Okay. 5 Q You had said the mets that were identified in the 6 spring of '03--or excuse me--in the spring-- 7 MR. BONEZZI: '05. 8 Q --are you talking about '05, the abdominal pelvic 9 CT? 10 A Yes. 11 Q That would be April of '05? 12 A Yes. 13 Q Now, we can agree that there were--tell me-- 14 you're--you're not a radiologist, correct? 15 A That's correct. 16 Q You don't hold yourself out as an expert in 17 radiology? 18 A I do not. 19 Q You don't hold yourself out as an expert in 20 oncology? 21 A I do not. 22 Q You do not hold yourself out as an expert in 23 internal medicine? 24 A I do not. 0023 1 Q You do not hold yourself out as an expert in 2 surgery? 3 A I do not. 4 Q You do not hold yourself out as an expert in breast 5 surgery? 6 A I do not. 7 Q You do not hold yourself out as an expert in 8 radiation oncology? 9 A I do not. 10 Q You haven't reviewed any films in this case? 11 A I have not. 12 Q So when you talk about the mets in the liver that 13 were identified in the spring, we can agree that 14 you're referring to the April 22nd, '05 abdominal 15 pelvic CT? 16 A That's correct. 17 Q And you're relying upon the interpretation of 18 another person as to that CT in the opinion that 19 you're giving that there were mets in September of 20 '03 in the liver, true? 21 A Yes. 22 Q Now, Doctor, you'll agree--tell me what your 23 understanding is as to how large a cancer needs to 24 be to be picked up by a CT that would view the 0024 1 liver. 2 A Well, again, it's not my area of expertise. My 3 best guess is that it would have to be in the range 4 of approximately one centimeter. 5 Q Okay. So it's your opinion within reasonable 6 medical probability that to have a metastatic 7 lesion of cancer to be picked up by a CT, it could 8 be as small as one millimeter? 9 A That's not what I said. 10 Q Okay. Then that's why I--I restated it. How-- 11 what's the smallest that it could be to be picked 12 up? One centimeter? 13 A That is my understanding, but, again, I'm not an 14 expert, so it's not a definitive opinion. 15 Q Okay. Well--but you are utilizing a diagnostic 16 test of April of '05 as a basis for your opinion 17 that this patient had mets to her liver in 18 September of '03, true? 19 A Could you please rephrase that? 20 Q Sure. I asked you what the basis was for your 21 concluding that she had mets to her liver in 22 September of '03, and you told me a study that was 23 done in the spring of '05. I followed up by saying 24 to you the study that you're referring to is the 0025 1 abdominal pelvic CT that was done 4-22-05. Is 2 there any other diagnostic study that you're 3 relying on of the liver for your opinion that she 4 had mets to her liver in September of '03 other 5 than the 4-22-05 abdominal pelvic CT? 6 A Well, what I rely on is my knowledge of the growth 7 pattern of breast cancer in general, how long it 8 takes to metastasize, how long it takes to form a 9 metastases from a submicroscopic level to a 10 clinically detectable level. 11 Q Okay. My question is, sir--and--and the record 12 will bear this out--from a diagnostic test level, 13 not from a behavior of tumor biology--we'll get 14 into that later. From a diagnostic test level, I 15 think you told me that you relied upon the April of 16 '05 pelvic CT. That's when I asked you how big 17 does a tumor have to be to be picked up in the 18 liver by a CT, so let me start and go back to that. 19 What is your understanding of the smallest size a 20 tumor can be and be picked up in the liver by a 21 pelvic or abdominal CT scan? 22 A My understanding is it's in the range of one 23 centimeter. 24 Q One centimeter. Now, is that a distinct nodule or 0026 1 is that a grouping of nodules? 2 A I'm not sure that I understand the question. 3 Q Okay. You can have cancer in an organ, and it can 4 have several foci to it, can it not? 5 A Yes. 6 Q It doesn't have to be just one massive tumor? 7 A That's correct. 8 Q All right. Now, when you talk about one sonometer, 9 does that mean that it has to be one sonometer of 10 one nodule, or can it be a bunch of individuals 11 that together are one sonometer? 12 A That's really outside of my area of expertise, and 13 I don't look at CT scans on a regular basis, so I'm 14 not sure that I can expound upon that. 15 Q How big was the cancer in her liver in September of 16 '03? 17 A I do not know. 18 Q How big was the cancer in her liver in November of 19 '04? 20 A I do not know. 21 Q Other than--is there anything other than your 22 understanding of the growth patterns and--and what 23 breast cancers do that you are utilizing as a basis 24 to conclude that she had cancer in her liver in 0027 1 September of '03? 2 A I would say no. 3 Q When did she metastasize to her liver, based upon 4 your opinion? 5 A I do not know exactly when, but I'm more certain 6 than not--or I think it's more likely than not that 7 she had metastasized well before her primary tumor 8 was diagnosed. 9 Q Give me a time, sir. Her primary-- 10 A I can't give you a time. 11 Q Her primary tumor was diagnosed in November of '04. 12 Tell me when she first metastasized to her liver. 13 A I do not know. Nobody knows. It's unknowable. 14 Q Why? 15 A Because when a tumor is below the clinical 16 threshold--below the threshold of what can be 17 detected by the physician and by the radiologist, 18 you really have no idea what happens until it does 19 become detectable. And a very long time can elapse 20 for the tumor to get to that point. 21 Q When I'm--for the rest of this deposition, when I 22 refer to "this cancer," can we agree it's the 23 cancer that Rhonda Berry had? It's just easier 24 than me having to remember to say, "Rhonda Berry's 0028 1 cancer." Fair enough? 2 A Yeah. That's fine. But you have to specify 3 whether it's in the breast or at the other sites 4 that you're talking about. 5 Q Fair enough. Did she have a--based upon your 6 review and your opinions, did she have basal-like 7 breast cancer? 8 A Based on my review, she had triple negative breast 9 cancer. Basal-like breast cancer is a subset of 10 triple negative carcinomas. 11 Q Tell me what your definition of basal-like breast 12 cancer is. 13 A Basal-like breast cancer in its strictest 14 definition is characterized by the pattern in the 15 tumor, which in her case, was not determined. 16 There is a phenotypic surrogate of basal-like 17 carcinoma, and that is characterized--characterized 18 by triple negativity, as well as positivity for 19 basal and/or if you have a receptor. 20 Q You want to go to your article, Exhibit 3? How do 21 you define basal-like breast cancer in that 22 article? I think on page-- 23 MR. BONEZZI: Well, I'll--I'll object to 24 the way in which you termed this as being his 0029 1 article, given the fact there are multiple authors. 2 With that objection-- 3 Q Well, Doctor-- 4 MR. BONEZZI: --in place, that's fine. 5 Q --let--let--let me ask you this. Let me ask you 6 this. Exhibit 3 is an article that you cited in 7 your report, true? 8 A Yes. 9 Q Exhibit 3 is an article that's a peer-review 10 article? 11 A Yes. 12 Q And if you didn't believe as to the accuracy or 13 correctness of anything in this article, would you 14 have allowed your name to be on it? 15 MR. BONEZZI: Objection. My objection is 16 based upon the way in which you've phrased it-- 17 MR. MARGOLIS: I know. 18 MR. BONEZZI: --of being his article, but 19 he is one of many or numerous authors. 20 MR. MARGOLIS: I understand. 21 MR. BONEZZI: That's the only basis of my 22 objection, because of the way in which you phrased 23 ownership. 24 MR. MARGOLIS: I understand. 0030 1 Q I'm just asking you the question. Would you have 2 put your name on anything in Exhibit 3 if you'd 3 had--if you thought it was incorrect? 4 A Not anything that's substantively incorrect. 5 Q All right. Let's--let's back up a minute. How do 6 you explain that in--let's see. You don't know how 7 big the cancer was in her liver in November of '04, 8 either, do you? 9 A That's correct. 10 Q Any other opinions of Dr. McCarty that you disagree 11 with? 12 A I think he also opined that in November of '03, the 13 breast tumor measured approximately three 14 centimeters. I disagree with that. 15 Q Anything else? 16 A (Examines paperwritings.) I disagree with the 17 summary statement that there were no metastases in 18 2003. 19 Q When did she first metastasize to the bone? 20 A I do not know the exact time, but it was well in 21 advance, in my opinion, before her primary tumor 22 was diagnosed. 23 Q And how large would the mets have had to be to the 24 bone to be picked up by a bone scan? 0031 1 A I do not know. 2 Q How do you explain that--did she have bone mets in 3 November of '04? 4 A I believe they were picked up in the spring of 5 2005. I'm not sure if an earlier bone scan had 6 been performed. 7 Q So my question to you was did she have metastases 8 to her bone in November of '04? 9 A More likely than not, yes. 10 Q Which bones? 11 A I do not know which bones. 12 Q Why did the November of '04 bone scan come up 13 negative for bone metastases if she had bone 14 metastases? 15 A There's a limit to the sensitivity of the bone 16 scan, and there is-- 17 Q What is it? 18 MR. BONEZZI: Ron, let him finish his 19 answer before you jump in. Go ahead, Doctor. 20 Q I apologize. 21 A And very small metastases may not be picked up by a 22 bone scan. 23 Q What is the size that metastatic disease to the 24 bone has to be for it to be picked up by a bone 0032 1 scan? 2 A I do not know. 3 Q Is this the only case that you're working on as an 4 expert with the firm of Bonezzi Switzer? 5 A Yes. 6 Q Do you know if there's been any pathology reviews 7 that were negative in this case by defense experts? 8 A I do not know of such. 9 Q Have you ever been sued for malpractice in your 10 area of pathology? 11 MR. BONEZZI: Objection. Go ahead. 12 A I have not. 13 Q Have your hospital privileges ever been suspended, 14 revoked, or called into question? 15 A No. 16 Q Would you please pull out your report? I want to 17 talk a little bit about your--the nature of your 18 practice. It's not a clinically-based practice 19 where you're interacting with patients such as an 20 internal medicine doctor or a surgeon, is it? 21 A I have no direct patient contact. That's correct. 22 Q When is the last time you would have performed a 23 breast exam on a patient? 24 MR. BONEZZI: Dr. Geradts is not going to 0033 1 be providing testimony in this case as it relates 2 to standard of care. 3 MR. MARGOLIS: I--I know, but you had 4 asked Ken some questions regarding-- 5 MR. BONEZZI: But the difference between 6 Dr. Geradts and Dr. McCarty is that Dr. McCarty is 7 also a board-certified internist. 8 Q Well, let me ask the question this way: Do you 9 believe that if there was cancer in the breast 10 between September of '03 and November of '04 of 11 Rhonda Berry that she would have been able to 12 detect it with self breast exam? 13 A That depends very much on the size of the tumor 14 during that time period. 15 Q In September of '03, do you know what the size of 16 her tumor was-- 17 A I don't know. 18 Q --in her breast? 19 A I do not know. 20 Q Am I correct that in your practice, you don't make 21 decisions on your own about the types of treatment 22 that breast cancer patients should receive? 23 A That is correct. 24 Q Now, what I would like you to do is tell me when 0034 1 the breast cancer that Rhonda had first would have 2 been detectable by any diagnostic study had one 3 been done. 4 A I do not know. 5 Q Do you have an opinion as to how long--or strike 6 that. And you may have already answered this. 7 Do you know when she first developed 8 breast cancer? 9 A I do not know. What I do know is that breast 10 cancer develops over a long period of time, at 11 least ten years, oftentimes twenty, thirty years. 12 Q Wait. But I'm talking specifically about this 13 patient, this case. 14 MR. BONEZZI: Objection. I don't think 15 he--go ahead. Objection. You may answer. 16 Q Do you know if she had cancer in her breast in 17 September of '03 that would have been detected by 18 an ultrasound? 19 A I think that she had a breast carcinoma. Whether 20 or not it was big enough to be detected by any 21 modality, I do not know. 22 Q So she had--I thought--so now you're--you're 23 telling me that in September of '03, she had cancer 24 in her breast? 0035 1 A She probably had cancer much, much longer before 2 then. 3 Q Okay. When did she first have cancer in her 4 breast? 5 A I do not know exactly when, but I'm pretty--I'm 6 reasonably certain it was for several years. 7 Q So would it have been 1990, 1985? I--I don't know 8 what "several years" means. 9 A As I--as I explained to you from studies not in 10 this particular patient, but generally speaking, we 11 know it takes at least ten years for breast cancer 12 to develop, so I would think in her case, it would 13 have been at least as long, possibly longer. 14 Q Doctor, is it your opinion within reasonable 15 medical probability that Rhonda had cancer in her 16 breast for ten years prior to 2003? 17 A I think it's--I would say it's more likely than not 18 that her cancer originated at least ten years prior 19 to its diagnosis in November of 2004. 20 Q How long had Rhonda had cancer in her breast prior 21 to 2003? 22 A Could you please define--define "cancer" for me? 23 Q How are you defining the cancer that Rhonda has in 24 her breast that was defined--that was diagnosed in 0036 1 November of '04? I think she had invasive 2 carcinoma in situ, did she not? 3 A In November of 2004, she had a high-rate invasive 4 ductile carcinoma. 5 Q Okay. You tell me when it is she first had cancer 6 in her breast, and then tell me what type of cancer 7 it was. 8 MR. BONEZZI: Objection. Are you asking 9 whether or not there was invasive carcinoma? 10 MR. MARGOLIS: No. I--I asked when-- 11 MR. BONEZZI: Because you--Ron, what you 12 did is you asked what type it was--when it was and 13 then what type it was. 14 MR. MARGOLIS: Right. Because he said to 15 me it depends how you define cancer. 16 Q So I'm asking you to first generally tell me when 17 did she first have cancer in her breast, and then 18 tell me, if you can, what type of cancer that was. 19 MR. BONEZZI: And I will object. He's 20 already said that it was at least ten years prior 21 to when her diagnosis was made in November before. 22 Q Okay. So she had cancer in her breast in 1994? 23 A I said that's when the cancer started developing or 24 developed. Now, to get to a cancer, a cell 0037 1 population goes through a number of many different 2 molecular changes, and in the early stages, it's 3 not correct to call it a cancer. In fact, it's 4 somewhat debatable whether something qualifies as a 5 cancer. 6 For instance, ductile carcinoma in situ, 7 is it carcinoma, yes or no? There are different 8 opinions on it. It's generally considered a 9 precursor lesion, but ductile carcinoma in situ, 10 per se, is not thought to have the capacity to kill 11 a patient. In spite of that, it's often referred 12 to as a cancer. 13 The point is that there are different 14 definitions of cancer, and so when you ask me when 15 her cancer first developed, it's a difficult 16 question to answer, because it's a lengthy process, 17 and you don't get from zero to something very 18 aggressive in an instant. It takes a long time for 19 degenerative changes to accumulate in the--in the 20 neoplastic cell population, and it takes a very 21 long time to get to the in situ carcinoma stage, 22 and then from there, the tumor has to become 23 strongly invasive, and that's when it often becomes 24 clinically manifest. 0038 1 Q Okay. My question is in 1994, you believe she had 2 cancer in her breast? 3 A That's not what I said. I said by November of 4 1994, the origins of her cancer, the original 5 mutations, the original events had taken place. 6 Q Okay. Tell me when she first had cancer in her 7 breast as you are defining breast cancer, whether 8 it's ductile carcinoma--let's--let's start with 9 DCIS. When did DCIS first set up in her breast? 10 A I do not know. 11 Q When did invasive cancer first set up in her 12 breast? 13 A I do not know. 14 Q So the first time that you can tell me that she had 15 cancer in her breast was when it was diagnosed in 16 November of '04? 17 A No. She had invasive carcinoma prior to that. 18 That's when it was first detected. 19 Q Okay. And--and believe me, I--I'm just trying to 20 hone in your opinion. 21 A But I cannot tell you how long it had been there 22 prior to November of 2004. I do not know when the 23 tumor became invasive prior to November of 2004. 24 Q And please tell me how you're defining the term 0039 1 "invasive." 2 A Invasive means that the tumor cells have broken 3 through the base of a membrane of the terminal duct 4 from which they originate and invaded the 5 surrounding stroma. 6 Q Could her cancer in November of '03 have been 7 localized to the breast and the breast alone? 8 MR. BONEZZI: Objection to "could it have 9 been." Go ahead and answer. 10 A It could have been, but it's unlikely. 11 Q Okay. And we're going to get to--to your opinions 12 on that. You put emphasis on the fact that her 13 August of '04 mammogram was negative for malignancy 14 in the opinions that you've arrived at in this 15 report, did you not? And if you'd look at your 16 second paragraph, you say, "Importantly, a 17 diagnostic mammogram in August of '04 was negative 18 for malignancy." 19 A Yes. 20 Q Okay. Tell me how you were utilizing the term 21 "importantly." 22 A I think it's important because in August of 2004, 23 she had not only a screening mammogram, but a 24 diagnostic mammogram honing in on a particular area 0040 1 in the breast, and it was diagnosed as being 2 negative. 3 Q There were two radiographic tests that were done in 4 August, and one was an August 13th mammogram, and 5 the other was an August-- 6 MR. BONEZZI: 17th. 7 MR. MARGOLIS: I thought it was--it was 8 the 13th. 9 MR. BONEZZI: I think I could find 10 maybe--but I thought it was the 17th on the 11 screening mammogram or a screening--or the 12 compression study is-- 13 MR. MARGOLIS: You're right. 14 MR. BONEZZI: --the 25th. 15 MR. MARGOLIS: You're right. You're 16 absolutely right. 17 Q An August 17th mammogram and an August 25th, '04 18 cone down. In your report, when you say, 19 "Importantly, a diagnostic mammogram in August of 20 '04 was negative for malignancy," which were you 21 referring to? 22 A I was referring to the study of August 25th. 23 Q The cone down? 24 MR. BONEZZI: The spot compressions test. 0041 1 Q The spot compression. 2 A I referred to it as a diagnostic mammogram. Yes. 3 Q All right. Are you aware that the screening 4 mammogram had an architectural distortion of August 5 17th, '04? 6 A Yes, I am. 7 Q All right. Do--you haven't looked at the spot 8 compression film? 9 A I have not. 10 Q You've looked at the interpretation? 11 A Yes. 12 Q Do you know if a spot compression test can be done 13 improperly so that the aperture that needs to be 14 open as to the area that they want to study can 15 actually block that area? 16 MR. BONEZZI: Objection. 17 A I have no opinion on that. 18 Q All right. If, in fact--well, if, in fact, the 19 cone down compression test of 8-25-04 was 20 interpreted incorrectly, does that impact your 21 opinion in this case? 22 A Any opinion in particular or just generally? 23 MR. BONEZZI: Your overall opinion. 24 Q Your overall opinion. 0042 1 A It would not impact my opinion that the tumor would 2 have caused her demise even if it had been detected 3 in the summer of 2003. 4 Q What facts would need to be different in this case, 5 then, as you understand them to be for you to be of 6 the opinion that she did not have mets in her liver 7 in September of '03? 8 MR. BONEZZI: You can--you can't read 9 that one back. 10 Q What-- 11 MR. BONEZZI: She can't read it back. 12 Q What facts would need to be different in this case 13 than what you understand them to be for you to be 14 of the opinion she did not have mets to her liver 15 in September of '03? 16 A I cannot think of any right now. 17 Q Doctor, when you use the words "tumor clinical 18 phase," what does that mean? 19 MR. BONEZZI: I'm sorry. Are you reading 20 from a specific area? 21 MR. MARGOLIS: Yes. Mr. Bonezzi, if you 22 look at the second paragraph from the bottom, 23 "These observations suggest a rampantly-growing 24 tumor with an explosive clinical phase." 0043 1 MR. BONEZZI: Uh-huh (yes). Yes. 2 Q What does "clinical phase"-- 3 A Clinical phase refers to the period when the tumor 4 first becomes detectable by any means. 5 Q This is--Rhonda's breast cancer was an aggressive 6 breast cancer, correct? 7 A That's correct. 8 Q And tell me how you are using the term 9 "aggressive," what definition you attach to it. 10 A Aggressive implies that it grows rapidly, it 11 metastasizes early, and it kills the patient in a 12 relatively short period of time. 13 Q What is a non-aggressive growth rate of cancer? 14 MR. BONEZZI: Objection to the 15 phraseology. Go ahead and answer if you can. 16 Q Did you use doubling times in this case for--for 17 growth rates? 18 A I did not calculate any doubling times. 19 Q Did you look at the mitotic activity in the slides? 20 A I did. 21 Q All right. 22 A And it was-- 23 Q Okay. Let me back up a minute. Is there a certain 24 level of mitotic activity that needs to be present 0044 1 for you to conclude that it is an aggressive 2 cancer? 3 A That's not the only thing we take into account. 4 Mitotic activity does come into play, but it's not 5 the only thing we look at. 6 Q Okay. Right now, let's focus in on the mitotic 7 activity. What does the mitotic activity need to 8 be for you to conclude that that's an element of an 9 aggressive cancer? 10 MR. BONEZZI: You're asking for a number? 11 MR. MARGOLIS: Yes, sir. 12 MR. BONEZZI: Go ahead. 13 A An aggressive breast cancer typically will have 14 what we refer to as a mitotic grade of three. In 15 terms of absolute numbers, I cannot give them to 16 you, because it depends on the microscope that's 17 being used. The denominator typically is ten high 18 powered fields, but the high-powered fields vary 19 from microscope to microscope; and therefore, the 20 cut-offs tend to differ from microscope to 21 microscope. 22 Q What is a non-aggressive cancer mitotic rate if 23 you're using the same microscope that you would be 24 utilizing to have a mitotic rate of three? 0045 1 A Well, mitotic--I did not say rate of three. 2 Mitotic grade of three. 3 Q Grade of three? 4 A Yes. 5 Q My--my apologies. 6 A Yes. That is an important distinction. 7 Q Okay. 8 A A non-aggressive tumor would have a mitotic grade 9 of one. 10 Q What was Rhonda's? 11 A When I looked at her slides in the mastectomy 12 specimen, she had a mitotic grade of three. 13 Q Was her cancer in the explosive clinical phase in 14 September of '03? 15 A Probably not. 16 Q When did it become explosive? 17 A Probably sometime between August '04 and November 18 '04. 19 Q So we can agree that her cancer grew more from 20 August of '04 'til November of '04 than it did from 21 September of '03 'til November of '03? 22 A Yes. 23 Q Do you have an opinion, sir, what the mitotic grade 24 of her cancer was in September through 0046 1 October/November of '03? 2 A I do not know. 3 Q Now, would you please go to page--the first page of 4 your report again, Paragraph 3? "Staging studies 5 revealed one-sonometer lesions in the liver that 6 focally coalesced to"-- 7 MR. BONEZZI: Coalesced. 8 Q --"coalesced to form a four-point-one sonometer 9 mass." What is the difference if you just had a 10 four-point-one sonometer mass that did not have 11 one-sonometer lesions that focally coalesced versus 12 one that is just a solid mass? Do you understand 13 the distinction I'm asking in my own inartful way? 14 'Cause if not, I'll try again. 15 MR. BONEZZI: Try again. 16 Q Okay. What do you mean when you indicate, "focally 17 coalesced to form a four-point-one sonometer mass"? 18 A Well, this was taken more or less directly from the 19 radiology report. That's how they phrased it. 20 Q Okay. But what does that mean to you, 'cause you 21 included it in your report? 22 A That means that--the implication is that there were 23 several smaller lesions that then grew and fused 24 over time to form a single larger mass. 0047 1 Q Okay. And the staging study that we are talking 2 about we can agree would be April 22nd, '05? 3 A Yes. 4 Q Okay. My question to you, sir, is this: As I 5 understand that, it means there's a bunch of little 6 pieces of cancer, and when you add them all up, it 7 comes to a four-point-one sonometer mass. How 8 does--how is that different than if you just had a 9 solid sonometer mass of four-point-one? Do you now 10 understand what I'm asking? If not, I'll ask Bill 11 to ask it, 'cause I know he knows what I'm asking. 12 A Yeah. Maybe he can phrase it differently, because 13 I'm not entirely clear what's--what's meant. 14 MR. BONEZZI: If you have, first of all, 15 a mass that's four-point-one centimeters in size 16 that is a solid mass, and then if you compare that 17 to a mass that is not solid, but is made up of 18 separate individual masses, but collectively they 19 measure four-point-one centimeters, what is the 20 difference between the one that collectively makes 21 up four-point-one centimeters as opposed to the 22 solid mass that also represents four-point-one 23 centimeters? 24 Q In Rhonda. 0048 1 MR. BONEZZI: In Rhonda, of course. 2 Q Yeah. 3 A I actually don't think that that's what they're 4 describing. And, again, I did not see the 5 radiologic studies, but I interpret it--interpret 6 the term "coalescence" differently. In my 7 opinion-- 8 MR. BONEZZI: Here. I'll give you this. 9 I'll give you a bigger piece of paper. 10 A "Coalescence" means that you start out with 11 separate lesions, and then as they grow, they form 12 one larger mass. That's what I understand the term 13 "coalescence" to mean. 14 MR. BONEZZI: The edges become contiguous 15 or they communicate. 16 Q Okay. So-- 17 A There's no intervening benign-- 18 Q So let--let me ask--and that was important to you 19 in the opinions--let me do this. 20 MR. MARGOLIS: Let's mark this Exhibit 5. 21 (PLAINTIFF'S DEPOSITION EXHIBIT NO. 5 22 MARKED FOR IDENTIFICATION) 23 Q And just tell me for the record what Exhibit 5 is. 24 A So this is my understanding of the coalescence of 0049 1 smaller nodules into one larger lesion. 2 Q Yes, sir. And what was the significance of that 3 concept regarding the opinions you arrived at in 4 this case? And if you'll read Paragraph 3, that's 5 where you're talking about it. 6 A (Examines paperwritings.) 7 Q And let me ask the question this way, 'cause it may 8 be a little faster for us. Does what Exhibit 5 9 represents and as you have explained it to us have 10 any impact in your opinions that she had metastatic 11 disease in her liver in September of '03? 12 A The coalescence itself really does not impact on 13 that opinion, because even if she only had multiple 14 one-centimeter lesion, my opinion would still be 15 the same, that she had a metastatic tumor in the 16 liver in September of 2003. 17 Q Fair enough. Does it take a period of time to go 18 from separate nodules to join-- 19 MR. BONEZZI: Coalescence. 20 Q --to coalesce and to become one? 21 A It does takes some time. I don't know how much 22 time, but it does take some time. 23 Q In this case, do you have an opinion as to the 24 degree of time it would have taken? 0050 1 A I do not. It depends, of course, how far apart 2 they were initially for them to coalesce. I don't 3 have that information. 4 Q Sir, I'm showing you what has been marked as--what 5 is this--April 22nd, '05 CT of the abdomen, that 6 report, asking you to review it. And based upon 7 that review, does it support the conclusions that 8 you have arrived at as to what's set forth in 9 Exhibit 5? 10 A (Examines paperwritings.) I think it's in keeping 11 with what I drew. 12 Q Okay. Fair enough. What I would like you to do 13 now--and I'm going to just take notes--is walk me 14 through the analysis that you have done in this 15 case that supports your opinion that she had 16 already had metastatic disease to her liver and 17 bones in September of '03. What was Step 1? 18 A Step 1 was review of the records, specifically the 19 imaging reports in the spring of 2005, to have an 20 idea of how much disease there was in the distant 21 organs at that time. 22 Q Okay. So Step 1, sir, would include your review of 23 the interpretive report of the 4-22-05 abdominal 24 pelvic CT, true? 0051 1 A Yes. I'm just pondering over whether I saw the 2 original reports or somebody's summary of those 3 reports. 4 Q Well, I was going to ask you if you could show me 5 the reports of the 4-22-05 abdominal pelvic CT in 6 your file. 7 A We went through what's in my file, and that's all I 8 have, so if that wasn't listed, then it must be 9 somebody's summary of that report. 10 Q Well, I would like you to please show me what--what 11 information you utilized in your analysis regarding 12 the interpretation of the 4-22-05 abdominal pelvic 13 CT. 14 A (Looks through paperwritings.) I'm sorry. This is 15 taking me a few moments. 16 Q Doctor, take your time. 17 MR. MARGOLIS: We're off the record. 18 (DISCUSSION OFF RECORD) 19 Q Doctor, can we agree that you've had the 20 opportunity to review your file and that you have 21 not been able to locate the interpretive report of 22 the 4-22-05 abdominal pelvic CT on Rhonda? 23 A I have not found it yet. That's correct. And I 24 apologize for that. 0052 1 Q If you would like to continue to look, please feel 2 free to do so. And if there is a point in time 3 where you're comfortable indicating that you don't 4 have that record, then tell me, and we can move on. 5 A Is it possible to come back to this, or would you-- 6 do you want me to find this right now? Because you 7 have me all flustered, and it's very difficult to 8 find things when you're flustered. 9 Q Okay. I'm--I'm sorry if I'm flustering you. That 10 is not my intent. But given the fact that this was 11 an element of the analysis that you used to 12 conclude that she had mets to her liver in 13 September of '03, I would rather stay on this until 14 you can tell me whether you have the interpretive 15 report of the 4-22-05 abdominal pelvic CT scan in 16 your file or you do not. 17 A I do not believe I have copies of the original 18 reports. I believe that I have a summary of those 19 findings somewhere in this file. 20 Q If you could be kind enough, sir, to--to take your 21 time and identify what the summary is that you 22 utilized as a basis of the 4-22-05 abdominal pelvic 23 CT, that is what I would like to have you show me, 24 please. 0053 1 A (Looks through paperwritings.) 2 MR. BONEZZI: Just keep them separate. 3 Yeah. 4 A (Looks through paperwritings.) It is possible that 5 I derived that information from the files I was 6 sent two years ago by-- 7 MR. BONEZZI: Marlena DeSilvio. 8 A Yeah. 9 Q Do you have that file somewhere? 10 A I have it in my office. 11 Q Can you go get it? 12 A I can. 13 MR. BONEZZI: Let's take ten minutes. 14 A Okay. Should I do that? 15 Q Yes, please. 16 17 (TEN-MINUTE RECESS) 18 19 Q Doctor, where we were at is you were going to show 20 me what reference you had regarding the 4-22-05 CT 21 of the pelvis and abdomen, which was the first step 22 in your analysis to conclude that she had mets in 23 September of '03 to her liver. You have gone 24 through the file that was initially produced as 0054 1 your file in this case and we couldn't locate 2 anything, you then went to your office and searched 3 some additional records, and I believe you have now 4 come back with the reference. Is that correct, 5 sir? 6 A That is correct. 7 MR. MARGOLIS: Before--before we go 8 further, what I'd like to do is put on the bottom 9 of this Exhibit 6. 10 (PLAINTIFF'S DEPOSITION EXHIBIT NO. 6 11 MARKED FOR IDENTIFICATION) 12 Q And what is Exhibit 6, sir? 13 A Exhibit 6 represents notes that I took from 14 reviewing Mrs. Berry's files that had been sent to 15 me from Ms. Marlena DeSilvio's office in 2007. The 16 records that were sent to me at the time have gone 17 back, but I still have my notes, and the notes 18 clearly indicate that information included in this 19 report was taken from materials provided to me at 20 the time, which includes the staging studies of 21 April 22nd, 2005, as well as the positive bone scan 22 of May 2005. 23 Q So Exhibit 6 and the summary that you have, you're 24 concluding that you would have reviewed the 0055 1 interpretive reports? 2 A Yes. 3 Q Those would have been in the records that were 4 forwarded to you by Attorney DeSilvio? 5 A Yes. 6 Q But you don't have those records; they would have 7 gone back? 8 A Yes. 9 Q Okay. Now, when did her cancer first become triple 10 negative? 11 A It is likely that it was triple negative from the 12 start. There's good evidence to suggest that the 13 phenotype of the tumor changes very little as it 14 grows. When it first become--became invasive, as 15 we discussed before, I do not know, but I believe 16 it was triple negative from the beginning. 17 Q So when the cancer first started, which was 18 sometime within ten years before September of '03, 19 it was triple negative? 20 A Invasive carcinoma. It probably was. Yes. 21 Q All right. Now, you also--what I'm going to do is 22 I'm going to jump around a little bit here, 'cause 23 I want to try to get through some things. A triple 24 negative cancer such as Rhonda's, what is the 0056 1 period of time from--from when it can go from an 2 undetectable to a large size? In your report on 3 the last paragraph of the first page, you said, "A 4 recent paper describes such tumors can grow from 5 undetectable to large size within a relatively 6 short period." Give me the timeframes. 7 A The publication I referenced, the time reference-- 8 the time period was about one year. This is not 9 the only thing I relied on in my opinion. It's 10 also based on experience with a lot of triple 11 negative breast carcinomas, discussions at tumor 12 conferences, et cetera. But it's becoming very 13 evident that these tumors can go very quickly. So 14 it's not solely this report I'm relying on. 15 Q Okay. Are there--well, let me back up a little. 16 Just--let's go back to this. 17 All right. What is Step 2 in the process 18 that you utilized to arrive at your opinion that 19 she had mets to her liver in September of '03? 20 A That is based on my general knowledge of how fast 21 breast cancers can grow both in the breast and in 22 metastatic setting. 23 Q Okay. So I need you to tell me any literature that 24 supports the general knowledge that you have in 0057 1 that regard. Well, first explain it to me. Okay? 2 Strike that last question. 3 Number two is your general knowledge of 4 the growth of breast cancer, true? 5 A Yes. 6 Q Okay. I want to limit ourselves to the type of 7 breast cancer that Rhonda had. 8 A Okay. 9 Q All right. So tell me--walk me through the process 10 just like you would a jury. 11 A And, again, we're talking about the metastases of 12 the liver specifically? 13 Q Specifically what I'm talking to you about now is 14 the process that you utilized to support your 15 opinion that in September of '03, Rhonda's cancer 16 had metastasized you said to her liver and her 17 bones. So I'm asking you to walk me through the 18 process that supports that opinion. 19 A Okay. What I'm going to tell you pertains not just 20 to triple negative breast carcinomas, but to breast 21 cancer in general, because a triple negative breast 22 carcinoma is a breast carcinoma nonetheless. So 23 what people have published-- 24 Q I just want to interrupt one minute and make sure 0058 1 we're on the same page. If--if this information 2 that's in general has direct application to Rhonda, 3 that's fine. I'm not interested in general. I'm 4 asking this case, this patient, the analysis that 5 you did to support the opinions that she had mets 6 in her liver and her bones in September of '03. 7 And the only reason I repeat that again is because 8 when you said "in general," I'm interested about 9 this specific patient. 10 A I have not come across any publication on this 11 particular patient. 12 Q Okay. But the general principles that you're 13 explaining to me you're telling me have application 14 to this patient? 15 A They do. 16 Q That's what I'm--that's what I'm trying to learn, 17 sir. Okay. 18 A Okay. So two main points: The first point is even 19 to get to a one-centimeter lesion in the liver 20 takes a very long period of time. It may not sound 21 like a big lesion, but in terms of cell numbers, it 22 is very significant. 23 Q How long, sir? 24 A Several years. 0059 1 Q And when you say "several years," between two to 2 four? 3 A I'm not sure that I can be very specific as to the 4 exact number of years. I would say at least two 5 and probably longer. 6 Q Okay. Two at a minimum. And what would the 7 maximum be? 8 A I guess the maximum can be twenty years. You know, 9 some--some tumors go on for decades before they 10 then start growing. 11 Q Okay. So for the cancer to be in her liver at a 12 detectable stage of one sonometer, it could have 13 been in her liver from anywhere from a minimum of 14 two years before it was detected at a level of--at 15 a minimum, one centimeter, to as long as twenty 16 years? 17 A Theoretically. Although given this particular 18 patient's age, probably not as long as twenty 19 years, because that would have implied that she 20 would have metastasized when she was fifteen, which 21 I think is unlikely. 22 Q Okay. So let's talk about again, sir, this 23 patient. What is the outside term of years? Do 24 you know? 0060 1 MR. BONEZZI: Why--why don't you let him 2 continue his thought so that he can provide all of 3 that information, and then if you want to, ask him 4 specific questions. 'Cause he continues to try to 5 answer your question, but then you break in and ask 6 him something, which then breaks up that train of 7 thought, and then we have to go back to square one. 8 MR. MARGOLIS: Well, I'm just trying to 9 get, though, the specifics of his info, and I may 10 not be able to remember if I don't go back to it. 11 Q In this case, do you have any idea as to the 12 longest period of time the cancer was in her liver 13 before it would have been detectable at one 14 sonometer? 15 A I think--I mean, any number I would give you would 16 be largely guesswork. 17 Q Okay. Can we go to the next piece of the analysis, 18 please? 19 A The second main point on which my opinion is based 20 is on the literature which I have in my office, 21 which is very consistent suggesting that the 22 majority of breast cancers metastasize several 23 years before the primary tumor is detected. 24 Q So the literature that say the majority, which to 0061 1 me means more than fifty-one percent-- 2 A That's correct. 3 Q Okay. Greater than fifty-one percent of breast 4 cancer metastasize before the primary is detected? 5 A That's correct. 6 Q Does that apply to basal-like breast cancer? 7 A The studies I'm familiar with did not split it up 8 into different histolytic types or phenotypes. 9 They certainly would have included triple negative 10 breast cancers, but not only triple negative breast 11 cancers. Those are studies on all kinds of breast 12 cancers. 13 Q Is there any literature that supports that the 14 cancer that Rhonda had the majority of the time 15 will become metastatic before the primary tumor is 16 detected? 17 A I'm not familiar with any study specifically on 18 triple negative breast carcinoma. I was addressing 19 that particular question. 20 Q Okay. We can agree that Rhonda's breast cancer was 21 triple negative? 22 A Yes. 23 Q So there's no literature that you can cite me to as 24 we sit here today that specifically addresses the 0062 1 issue of whether the majority of triple negative 2 breast cancers metastasize before the primary tumor 3 is detected. Isn't that true? 4 A Not specifically triple negative breast cancer 5 metastases. That is correct. 6 Q Okay. Is there any other points of your analysis, 7 sir, to support your opinion that she had 8 metastases to her liver and bones in September of 9 '03 which we have not identified? 10 A I believe those are the main points. 11 Q Are there any assumptions that you made to support 12 the opinions of the metastases being in the liver 13 and the bones which we have not identified in this 14 case in September of '03? 15 A Could you give an example of any possible other 16 assumptions, because I cannot think of any, but 17 maybe I'm missing something. 18 Q And I'm not in any way trying to be disrespectful. 19 I'm not smart enough to know of any. I'm--I'm just 20 asking you if there's anything else. 21 A I cannot think of anything else. 22 Q Do you agree that patients deserve the right to 23 fight for their life when they're battling cancer? 24 A Absolutely. 0063 1 Q Would you agree in general that earlier diagnosis 2 and treatment of breast cancer improves survival 3 and prognosis? 4 MR. BONEZZI: Objection. Are you talking 5 about this type of cancer, or are you asking that 6 question such as it pertains or applies to all 7 breast cancers in general? 8 MR. MARGOLIS: I think I said in general. 9 MR. BONEZZI: Okay. 10 A I would say in general, early detection would serve 11 to save some lives. 12 Q In this case, is it your opinion that detecting 13 Rhonda's breast cancer and treating it in 14 September/October of '03 would not have had any 15 positive effect in her outcome? 16 MR. BONEZZI: Objection. 17 A That is my opinion. 18 MR. BONEZZI: Go ahead. 19 A That is my opinion. 20 Q And what's the basis for that? 21 MR. BONEZZI: I'm sorry. The basis-- 22 MR. MARGOLIS: For the opinion that 23 treating it in September of '03 would not have 24 changed the outcome at all. 0064 1 MR. BONEZZI: Okay. Thank you. 2 A The basis is twofold. Number one, in my opinion, 3 at that point in time, the tumor had already 4 metastasized, so any local therapy would not have 5 been helpful. Secondly, we know from the lack of 6 response to chemotherapy that any therapy given in 7 the atropine setting in all likelihood also would 8 have been ineffective. 9 Q And when you say "metastasized," you're saying to 10 the liver and the bones? 11 A Yes. 12 Q I want you to assume-- 13 MR. BONEZZI: And--and lymph nodes? 14 'Cause you keep on just directing--well, no. You 15 keep on directing your--your statements to liver 16 and bones, but he also has an opinion--I'm just 17 telling you he also has an opinion as it relates to 18 the lymph nodes. 19 MR. MARGOLIS: Okay. 20 Q When did she metastasize to the lymph nodes? And 21 which lymph nodes are we talking about? 22 A We're talking about the axillary lymph nodes, which 23 are typically the first group of lymph nodes that 24 breast cancers metastasize to. And that's like for 0065 1 the distant sites. I do not know when the tumor 2 first metastasized to the lymph nodes. 3 Q But do you know that it metastasized to the lymph 4 nodes by September of '03? 5 A I think that's more likely than not. 6 Q Okay. What's the basis for that opinion? 7 A Similar to what we've just been through for the 8 distant metastases. Number one, by clinical, the 9 patient was at two-centimeter lymph node in 10 November of 2004. And to get to that size takes a 11 significant period of time; in all likelihood more 12 than two years, quite possibly much longer. And 13 then secondly, as we went through before, a general 14 knowledge of how long it takes for tumors to 15 metastasize and grow in distant sites and also 16 lymph nodes. 17 Q In November of '04, what proof do you have in the 18 records that she had metastasized to her lymph 19 nodes? 20 A There is an indication from the clinical exam that 21 there was at least one, possibly more two- 22 centimeter axillary lymph nodes. 23 Q And those were the--the size of the lymph nodes of 24 two sonometers? 0066 1 A Yes. 2 Q That was all full of cancer? 3 A We do not know, because at that time, the lymph 4 node was not biopsied, to my knowledge. 5 Q Okay. So in November of '04, you don't know within 6 a reasonable degree of medical probability that she 7 had cancer in her lymph nodes, 'cause there was no 8 biopsy, true? 9 A That is not true, because we do know how much tumor 10 she had in the lymph nodes in March of '05. 11 Q Okay. By a-- 12 MR. BONEZZI: Let him finish, Ron. He's 13 not finished. Go ahead. 14 A And so the reasoning is very much the same as what 15 we went through with the distant metastases. We do 16 know how much tumor there was in the lymph nodes in 17 March of 2005, so you can go back in time and I 18 think with high probability determine that there 19 must have been a significant amount--amount of 20 tumor in the lymph nodes in November of 2004. 21 Q Doctor, would a surgeon ever operate and remove a 22 lymph node based upon the analysis you're utilizing 23 in this case, or would they want some proof from a 24 biopsy that there's cancer in a lymph node? 0067 1 MR. BONEZZI: Objection. How do you 2 know--objection, Ron. 3 MR. MARGOLIS: Well, you can object. 4 MR. BONEZZI: But you know that when they 5 do a modified radical that part of the treatment is 6 also-- 7 MR. MARGOLIS: Let me ask--let me ask-- 8 MR. BONEZZI: --a lymph node dissection. 9 I mean, that's an unfair question. I mean, it's 10 part and parcel of the treatment. 11 Q Let me ask the question this way: The analysis 12 that you've used in this case to arrive at your 13 opinions, do you use that analysis--was that 14 analysis used every day in the hospital to decide 15 and direct treatment of cancer patients with breast 16 cancer? 17 A I don't think I fully understand the question. I'm 18 sorry. 19 MR. BONEZZI: You're--because--wait, Ron. 20 You're--you're--you're skipping the fact that there 21 was a core biopsy that was done, you're skipping 22 the fact that there was an MRI that was done in 23 November of '04, you're skipping the fact that 24 there was also palpation of the axilla, and so what 0068 1 you're asking is--are you suggesting that in a 2 hospital setting, the surgeon is going to operate 3 based only upon palpation of a lymph node, and that 4 is unfair in this setting. 5 MR. MARGOLIS: But Bill, as far as 6 fairness, I asked the doctor a question about when 7 she--it spread to her lymph nodes. 8 MR. BONEZZI: Right. 9 MR. MARGOLIS: And then I asked him the 10 basis. And he didn't tell me those things that you 11 just identified. He told me based upon the 12 theories that he's utilized in this case. My 13 questions were a follow-up on that. 14 Q Is there a--these theories that you've used in this 15 case, are they referred to collectively as doubling 16 times of cancer, or is there any nomenclature that 17 you're aware of that applies to the theories that 18 you're utilizing in this case to support your 19 opinions as when she metastasized? 20 A Well, I don't know what you mean by "nomenclature," 21 but certainly-- 22 MR. BONEZZI: He's talking about cell 23 kinetics. 24 A Well, I usually refer to it as the natural history 0069 1 of breast cancer. There certainly is a body of 2 literature that talks about tumor doubling times 3 and such. 4 Q With triple negative? 5 A Breast cancer in general. 6 Q Okay. And I'm--I'm talking about triple negative, 7 which is the cancer that Rhonda had. 8 A Okay. And please rephrase the precise question. 9 Q Is--is there--I'm sorry. We already went through 10 that. You already answered my question in that 11 regard. 12 What would Rhonda's prognosis have been 13 in September of '03 if the cancer was confined to 14 her breast and had not spread to her lymph nodes, 15 her liver, or her bone, and it was diagnosed and 16 treated? 17 A That depends in part of the size of the tumor at 18 the time of diagnosis. 19 Q Okay. Tell me in order for her to have a more- 20 likely-than-not chance of not dying from this 21 cancer, what would the size of the tumor of the 22 breast had to have been? No larger than what? 23 A Assuming she had no mets--no mets at all to the 24 lymph nodes, no mets to the viscera, no mets of any 0070 1 kind, only tumor in the breast. Is that correct? 2 Q Yes, sir. 3 A I do not know the precise number, meaning she would 4 have had a more-than-fifty-percent probability of 5 survival. What I do know is that obviously the 6 smaller the primary tumor, the higher the 7 likelihood of survival. 8 Q Are you able to give me a range of size of primary 9 tumor, that it would--could be no larger than "X" 10 to have a greater-than-fifty-percent chance of 11 survival? And if you can't, that's fine. I'm just 12 asking. 13 A I really cannot give you that range. 14 Q If she had micrometastatic disease to her axillary 15 lymph nodes in September of '03, what effect, if 16 any, would radiation therapy have had? 17 A Radiation therapy to what? To the breast, to the 18 axilla? What kind of radiation therapy? 19 Q What type of radiation therapy would be indicated 20 under that circumstance? 21 A That's out of my area of expertise, so I--I'm 22 reluctant to comment on that. 23 Q Okay. 24 MR. BONEZZI: What's outside of his area 0071 1 of expertise now is the type of treatment, 'cause 2 you asked two separate, distinct questions. 3 A Yes. I'm not a radiation therapist, so I cannot 4 really comment on that for that reason. 5 MR. MARGOLIS: That's what I understood 6 his answer to be. 7 MR. BONEZZI: But--but you asked him what 8 type of therapy, but before that, you asked him 9 what effect would radiation therapy have on the 10 malignancy, and he asked which one--which--where, 11 the lymph node or the breast, and then you asked 12 what type of treatment would that call for. He was 13 going to answer your first question, but then you 14 switched that question around and asked a different 15 question, and you asked for a treatment. So I 16 think you better go back to the first one and ask-- 17 MR. MARGOLIS: Okay. Would-- 18 MR. BONEZZI: --what--what impact 19 radiation therapy would have had. 20 Q What impact would radiation therapy have had on 21 this patient's survival if she did not have 22 metastatic disease other than micrometastatic to 23 the lymph nodes in September of '03? 24 A My understanding is--and, again, not speaking as an 0072 1 expert, but just knowing what I know as a 2 pathologist--is that it would have improved her 3 chance of survival, but I cannot tell you by how 4 much. 5 Q As a pathologist, was her prognosis adversely 6 affected at all in her not having her cancer 7 diagnosed until November of '04 versus it being 8 diagnosed and treated in September of '03? 9 A Not in terms of survival. 10 Q Did it impact her loss of chance? 11 MR. BONEZZI: Objection. 12 Q In other words-- 13 MR. BONEZZI: That's a legal--legal 14 theory. I don't know if you know what that is. So 15 maybe you had better explain to him-- 16 MR. MARGOLIS: I will do my best. 17 MR. BONEZZI: --"loss of chance." 18 MR. MARGOLIS: I will do my best. 19 MR. BONEZZI: I suspect it will be fine. 20 Q In September of '03, it is your opinion that 21 regardless of treatment, it would not have changed 22 her outcome, true? 23 A Yes. 24 Q And that's more likely than not, i.e., fifty-one 0073 1 percent? 2 A Yes. 3 Q Is there any percentage that she would have been 4 treated in September of '03--what would her chance 5 of survivability have been versus her chance of 6 survivability in November of '04? Hypothetically, 7 if you believe she had a forty-percent chance of 8 survival in September of '03, but by the time it 9 was diagnosed in November of '04, you believed her 10 chance of survival was zero, that would be the 11 difference. I'm not suggesting that those are 12 numbers that are accurate. I'm giving it to you by 13 way of an example. 14 So my question to you, Doctor, is had the 15 cancer been diagnosed and treated in September of 16 '03, what do you believe her chance of survival 17 would have been five years? 18 A Well, knowing what we do now and knowing how her 19 tumor did behave after it was detected, I believe 20 even if it had been detected in September of 2003, 21 she still would have died at more or less the same 22 time that she did die in September of 2005. 23 Q Okay. That's fine. Can you tell me if any 24 chemotherapy shrank any of her tumor? 0074 1 A From the records I have reviewed so far, I cannot 2 detect any evidence that the chemotherapy was 3 effective to any degree. 4 Q Okay. And that would have been the records that 5 you reviewed from Attorney DeSilvio, as well, which 6 would have been all the records? 7 A Yes. 8 Q Okay. 9 A Based on the review of all my records. 10 Q Did her breast cancer grow from September of '03 to 11 November of '04? 12 A From when to when? 13 Q From September of '03 until November of '04, did 14 her breast cancer grow? 15 A Yes, it did. 16 Q How much? Did it double? 17 A We might have gone through this already, but I do 18 not know how big the tumor was in September of 19 2003. In fact, I'm not even sure that we know how 20 big it was in November of 2004, because there are 21 different measurements that disagree with each 22 other. So therefore, I cannot really tell you by 23 how much the tumor grew, because we--we know 24 neither pathologic size. 0075 1 Q But you know the biology of this tumor, you know 2 it's triple negative, you know it's very 3 aggressive. What do you believe the growth rate of 4 this tumor in general would be in a year? 5 MR. BONEZZI: Objection. 6 A I really do not work with growth rates. I'm not 7 even sure that they are constant over the life of a 8 tumor; so therefore, it's a concept I usually don't 9 use in my practice. 10 Q Okay. 11 MR. BONEZZI: Are you aware of the 12 Gumpertz theory of growth? 13 THE WITNESS: Sure. 14 MR. BONEZZI: Thank you. 15 THE WITNESS: One of many. 16 Q Is there any relationship between tumor burden and 17 responsiveness to chemotherapy, or is that not an 18 area that you want to opine? 19 A It's certainly not in my area of expertise, and I 20 would be reluctant to comment on it. My 21 understanding is that larger tumors tend to be less 22 responsive to chemotherapy, but that's certainly 23 not a definitive opinion. 24 Q I may have asked you this. If I did, I apologize. 0076 1 If the cancer was localized to the breast and only 2 the breast in September of '03 and she was treated, 3 any opinion as to her survivability five years? 4 A Yes. We did discuss that, and I mentioned it 5 depends in part on the size of the tumor at the 6 time of detection. 7 Q Okay. And I think I followed up, and you don't 8 know the specific size of the tumor for-- 9 A I couldn't give you a threshold-- 10 Q All right. 11 A --of fifty percent. That's correct. 12 Q HER2/neu negative versus HER2--two--HER2/neu 13 positive, is there a difference? 14 A Well, there's a big difference. 15 Q It's worse to be HER2/neu positive than negative, 16 isn't it? 17 MR. BONEZZI: Objection. 18 A It's not that straightforward. It is--from a 19 prognostic standpoint, it's worse to be HER2 20 positive. On the other hand, if you are HER2 21 positive, then you are eligible for anti-HER2 22 therapy, including Herceptin. So there actually is 23 a drug out there that can prolong a disease for 24 your survival if you are HER2 positive. 0077 1 Q She was HER2 negative, correct? 2 A That's correct. 3 Q Okay. Do you have any opinion when this cancer 4 would have had to have been diagnosed and treated 5 for her to have a fifty-one-percent chance of 6 survival five years? 7 A I do not know. 8 Q Did her mitotic rate change from September of '03 9 to November of '04? 10 A I do not know, because there's no pathologic 11 material from September of '03. 12 Q Do you agree in general that the survival of breast 13 cancer is a function as to the amount of time the 14 breast cancer is present before treatment is 15 started? 16 A You're talking about the primary breast cancer in 17 the absence of any metastatic disease. Is that 18 correct? 19 Q Yes, sir. 20 A I would agree that the prognosis is better the 21 smaller the tumor. 22 Q Do you agree generally breast cancer has a doubling 23 time of a hundred to a hundred and fifty days? 24 MR. BONEZZI: Objection. 0078 1 A I neither agree nor disagree. 2 Q Do you have any opinion as to the doubling time of 3 Rhonda's breast cancer? 4 A I do not. 5 MR. BONEZZI: What was it? A hundred and 6 twenty to a hundred and fifty? 7 MR. MARGOLIS: A hundred to a hundred and 8 fifty. 9 MR. BONEZZI: Thank you. 10 Q And I may have asked you this before, and if I did, 11 again, my apologies. Are--are you able to give me 12 the latest point in time when she had breast cancer 13 but it had not metastasized? 14 A I cannot give you that time. 15 Q I would like to go to Page 2 of your report. Is 16 there any research that supports that metastatic 17 metastasis occurs in triple negative cancer late in 18 the development of that cancer? 19 A I am not familiar with such literature. 20 Q Is there any literature that supports the statement 21 that metastases can form early during the 22 development of triple negative cancer? 23 MR. BONEZZI: Where are you reading from? 24 MR. MARGOLIS: I'm not. 0079 1 MR. BONEZZI: Oh, okay. 2 A I'm not familiar with literature that talks 3 specifically about triple negative carcinomas, only 4 breast cancers in general. 5 Q Okay. Can you classify the aggressiveness of this 6 tumor? 7 MR. MARGOLIS: These are all your 8 questions. 9 A Using which weighting scheme? 10 Q Any one that you believe is applicable, sir. 11 A Well, it is a Grade III carcinoma, and it is in the 12 highest, most aggressive category. 13 Q Okay. Do you agree that her cancer had a mixed 14 pattern of histology--the breast cancer itself? 15 A Yeah. Could you clarify "mixed"? 16 Q More than one. 17 A More than one focus, more than one histologic type? 18 Please clarify. 19 Q More than one histologic type. 20 A Invasive carcinoma was, to my recollection, a 21 purely high-grade ductile. 22 Q Okay. 23 A There was a small DCIS component, if that's what 24 you're getting at. 0080 1 Q That's what I'm trying to get at. What percentage 2 of it was DCIS? 3 A Very small. I believe maybe five percent. 4 Q And what do you have to support that? Just your 5 review of the slides? 6 A Yeah. 7 Q What is dermal lymphatic invasion? 8 A That refers--refers to the presence of tumor nests 9 in the lymphatic channels in the dermis, which is 10 the stromal underneath the epidermis in the skin. 11 Q Was that present in September of '03? 12 A I do not know, because I have no pathology from 13 2003. 14 Q Did Rhonda's invasive breast cancer maintain its 15 biological characteristics of being aggressive? 16 A That's very likely. 17 Q From beginning to end? 18 A Yes. 19 Q When did it become invasive? 20 A I think we talked about this at least once before, 21 and I do not know when it became invasive. 22 Q Fair enough. What is extracapsular involvement of 23 the lymphatics? 24 A That's incorrectly phrased. It should be 0081 1 extracapsular extension of the lymph nodes, not 2 lymphatics. 3 Q Okay. And what is that? 4 A And that refers to a situation where the tumor that 5 goes within the lymph node penetrates the lymph 6 node capsule and invades the surrounding fat. 7 Q And did she have that in September of '03? 8 A Again, I do not know, because I have no pathology 9 of 2003. 10 Q I probably will mispronounce this, as well. 11 Angiolymphatic invasion? 12 A Well, that's related to the dermal lymphatic 13 invasion that we talked about before-- 14 Q Fair enough. 15 A --except it's deeper in the breast. And, again, 16 the absence of any pathologic material from 2003, 17 it's something that we cannot comment on. 18 Q What is the prognostic value of a tumor being 19 estrogen-receptive? 20 A Pardon me? 21 Q What is the prognostic value of a tumor being 22 estrogen-receptive? 23 A Estrogen--I'm not familiar with that term. Do you 24 mean estrogen-responsive or estrogen-receptive-- 0082 1 Q Yes. 2 A --negative or-- 3 Q Estrogen-recept--receptive would be fine. Or 4 estrogen responsive would be fine. 5 A Okay. That implies that the tumor expresses 6 estrogen receptors, and those tend to behave in a 7 less aggressive, more indolent fashion, generally 8 speaking, because they can be treated with 9 anti-estrogens. 10 Q What would you do for a patient that is ER/PR 11 negative in '03 once a diagnosis of breast cancer 12 has been made? 13 A Well, again, I'm a pathologist, and that's outside 14 my area of expertise. It would also depend on the 15 tumor size at the time of diagnosis whether or not 16 to give radiation. And I think there are many 17 different answers to that question. 18 Q Was Mrs. Berry refractory to adjuvant chemotherapy? 19 A I don't know, because she don't have adjuvant 20 therapy; she had neoadjuvant chemotherapy, and she 21 was refractory to that. 22 Q Was there more than one foci of cancer in her 23 breast in September of '03? 24 A I do not know. 0083 1 Q Have you performed any studies on triple negative 2 disease, breast cancer disease? 3 A Research studies? 4 Q Yes. 5 A Yes. In fact, I'm in the middle of performing a 6 couple of studies right now. 7 Q What does triple negative disease mean in the 8 context of breast cancer? 9 A Okay. It refers to the absence of estrogen 10 receptors, progesterone receptors, and HER2/neu 11 receptors in the breast cancer cells. 12 Q Would you agree that Rhonda's--the growth rate of 13 her tumor was dramatic? 14 A It was high. 15 Q Do you believe that a patient such as Rhonda could 16 go from a mass of three centimeters in her breast 17 to seven-point-eight within a year and not feel the 18 abnormality? 19 A It is possible. 20 Q If she had metastatic disease to her liver, would 21 you have expected her to have ascites, as well? 22 A Not necessarily. 23 Q Would you have expected it to have been palpated by 24 physical exam? 0084 1 A No. 2 Q Sir, if we could, please go to your article, which 3 I think I marked. Can we agree that Rhonda had 4 basal-like breast cancer subtype? 5 A I think we can agree that she had basal-like breast 6 cancer as defined in this particular article. 7 Q Okay. And tell me the definition that--well, tell 8 me what that definition would be. That she was 9 triple negative? 10 A Yes. I think this particular article, that implies 11 triple negativity. 12 Q Okay. And you would agree that breast cancer in 13 African-- 14 A I'm sorry. Let me modify that statement, if I may, 15 'cause it does talk about basal-like carcinomas as 16 being defined as triple negative, but also 17 Cytokeratin 5/6 positive and/or her--HER1 positive, 18 which is what I mentioned a while ago. That is my 19 definition of basal-like, as well. 20 Q So-- 21 A But what I mentioned to you is incorrect and not 22 used synonymously. 23 Q Yeah. That's--that's where I got confused. 24 A Yeah. 0085 1 Q I thought-- 2 A I apologize for that. 3 Q I thought that you had to be HER2 positive to--and 4 PR/ER negative to qualify for basal-like breast 5 cancer under this article. Am I wrong? 6 A That is incorrect. 7 Q Okay. Where am I wrong? 8 A The definition here is--well, you said HER2 9 positive, but that is not true. It's HER2 negative 10 and HER1 positive. Those are two different 11 molecules. 12 Q Okay. 13 A Yeah. 14 Q All right. So did she have basal-like breast 15 cancer? 16 A I do not know, because I didn't--did not come 17 across any Cytokeratin 5/6 or HER1 studies. So it 18 may have been basal-like. It certainly was triple 19 negative. But as I mentioned before, basal-like is 20 a subcategory of triple negative. 21 Q So if she was triple negative, which we know her to 22 have been, do you believe the conclusions made in 23 this article are applicable to her? And that's 24 article--Exhibit 3. 0086 1 A I believe they could well be if she truly was a 2 basal-like carcinoma, which she may have been. We 3 just don't have information. 4 Q Okay. 5 A So this may well be applicable. 6 Q And--and I appreciate that. Within a reasonable 7 degree of medical probability, is it your opinion 8 that the conclusions of this article would be 9 applicable to Rhonda? When you say "may like be," 10 I-- 11 A Well, let's put it this way. I think more than 12 fifty percent of triple negatives fall in the 13 basal-like category. So based on that probability, 14 I would say it's more likely than not that she 15 would fall in this category. 16 Q Fair enough. And we can agree that breast cancer 17 in African-American women has been characterized as 18 being a higher grade than in non-African-American 19 women? 20 A On average. 21 Q On--on average, more probable than not? 22 A Yes. 23 Q And that would have been something that was known 24 back in '03? Your footnotes go back farther than 0087 1 '03 on that. That's why I ask. 2 A Yeah. Again, what you have to understand is I 3 didn't write--I did not write this article. I was 4 one of many co-authors, so I played a very small 5 role in this, and it's really not fair to 6 characterize this as my article. I was one of many 7 co-authors. And, you know, I was--I certainly did 8 not compile the bibliography. I've certainly been 9 through the manuscript and made sure that I was 10 satisfied with its contents, but my involvement 11 is--was--was very limited. 12 Q Okay. Let me ask the question. This--based upon 13 your cancer [sic] of breast cancer, was it known in 14 '03 that African-American women would have--be-- 15 would be characterized by a higher grade of cancer 16 than non-African-American women on average? 17 A I think that would have been known at the time. 18 Q Thank you. Can you please gather for me all the 19 notes that you have made and the work that you have 20 done in this case? 21 A You mean all my personal notes like this kind of 22 thing? (Indicating.) 23 Q Yes, sir. 24 MR. MARGOLIS: We can give them to the 0088 1 judge and see if he thinks I'm allowed to have 2 them. 3 MR. BONEZZI: No. He can keep them, and 4 if you file your motion and if he grants it, then 5 I'll turn them over. 6 MR. MARGOLIS: That's fine. But we'll 7 mark them so that they can be identified. 8 (PLAINTIFF'S DEPOSITION EXHIBITS NO. 6A - 6I 9 MARKED FOR IDENTIFICATION) 10 Q And Doc, just so that you know, I'm going to be 11 done by four o'clock. 12 MR. BONEZZI: You've got forty-five more 13 minutes? 14 MR. MARGOLIS: Maybe not. 15 A Should I include this, because that's already 16 marked as an exhibit? 17 Q Yeah. We'll give them to the judge. 18 MR. BONEZZI: This has already been-- 19 yeah. 20 MR. MARGOLIS: Off the record. 21 (DISCUSSION OFF RECORD) 22 Q While you're gathering these things that Mr. 23 Bonezzi is kind enough to mark, I've gone through 24 your C.V. Can we agree that the minority of your 0089 1 publications involve breast cancer? I counted 2 twenty-four out of eighty-eight publications that 3 were on breast cancer. Does that sound right to 4 you? 5 A That does not sound right. 6 Q Okay. Do you believe that the majority of your 7 publications are on breast cancer? And when I say 8 "publications," I should also say peer-review 9 publications. 10 A Okay. May I have a look at that? 11 Q Absolutely. 12 A (Examines paperwritings.) 13 Q And we're limiting ourselves to the peer review. 14 A (Examines paperwritings.) 15 Q Sir, you've had a chance to look through your C.V. 16 on the peer review. If I'm reading upside down 17 accurately, I think you're getting to the end. Can 18 we agree that the minority of your peer-reviewed 19 articles deal with breast cancer? 20 A It is not correct. By my count, more than fifty 21 percent involve breast cancer either solely or as 22 part of a publication. 23 Q Okay. How many deal with triple negative breast 24 cancer? You know what? I withdraw the question. 0090 1 I'm going to move on to some other--some other 2 issues. 3 Are there any opinions that you're going 4 to be providing at trial which we have not 5 identified yet? This is the only opportunity I 6 have to talk to you and find out what the opinions 7 are that you're going to be telling this jury in 8 the case. So are there any opinions that you're 9 going to be giving at trial which you have not 10 identified for me thus far? 11 A No. I believe all my opinions are summarized in 12 the written opinion that I had submitted. 13 Q All right. There have been marked Exhibits 6 14 through-- 15 MR. BONEZZI: 6I. 16 Q --6I. Those are pieces of notebook paper that are 17 written in your own hand. 18 MR. BONEZZI: And I will tell you that 19 after I've had an opportunity to go through those, 20 I may very well withdraw my objection and just give 21 them to you, just not today. 22 MR. MARGOLIS: I'm sorry? 23 MR. BONEZZI: Not today. 24 MR. MARGOLIS: Well, then I won't go 0091 1 through this if you're telling me that's what 2 you're going to do. 3 THE BONEZZI: I am. 4 MR. MARGOLIS: Okay. That's fine. 5 MR. BONEZZI: I'm going to go through 6 those, and more likely than not, I will turn these 7 over. But I'm going to go through them. 8 MR. MARGOLIS: Okay. 9 Q Well, then let me just--6 through 6I are pieces of 10 notebook paper that are written in your hand, yes? 11 A Yes. 12 Q And they are written based upon your review of the 13 literature or your review of the materials in this 14 case that led to your opinions that are set forth 15 in your report? 16 A Yes. Not necessarily all the materials, but 17 they're based on materials I've read. 18 Q All right. Now, Doctor, is there going to be any 19 literature other than what you have cited in your 20 report which you are going to make reference to at 21 trial? 22 MR. BONEZZI: If there is literature, I'm 23 the one who's going to provide that to him, and I 24 will provide that literature to you well in advance 0092 1 of the trial. 2 Q All right. Other than the literature that you have 3 cited in the report, there's no literature that you 4 have reviewed that you have chosen to identify in 5 support of your opinions other than what's in your 6 report. Is that correct? 7 A Well, obviously I have relied on a much larger body 8 of published literature, but I did elect to cite 9 only four references in my report. That's correct. 10 Q All right. If this was such an aggressive cancer, 11 a Grade III mitotic rate, why isn't it within the 12 realm of medical probability that it could have 13 been localized in September of '03, and then, as 14 you said in your report, in the clinical phase, it 15 became explosive and metastasized thereafter? 16 A Well, that is really not consistent with the 17 published literature, not specifically on triple 18 negative carcinomas, but breast cancer in general. 19 That suggests that breast cancers, both aggressive 20 and nonaggressive types, metastasize early, and 21 we're out several years ahead of detection of the 22 primary tumor. So I don't think triple negative 23 carcinomas are an exception to that; they're 24 included in the general statement. 0093 1 Q You seem to be respectfully a little contradictory 2 when you said general cancers, not specifically 3 triple negative, and then when you concluded, you 4 said, "And I think that applies to triple negative, 5 as well." Is that your opinion? I guess let--let 6 me put the question to you this way: Rhonda's 7 triple negative cancer was a very aggressive 8 cancer, and your words were "with an explosive 9 growth rate in the clinical phase." 10 A With an explosive clinical growth phase. Yes. 11 Q Okay. Based upon that, based upon it being a 12 triple negative cancer, isn't it also within the 13 realm of accepted scientific knowledge that it 14 could have been in the breast and only the breast 15 in September of '03, hit that explosive clinical 16 growth rate, and then spread to her bones and--and 17 liver and lymph nodes? 18 A I consider--consider that highly unlikely. 19 Q Okay. Why? 20 A Because to get to the size of the metastases that 21 we have found in the spring of '05, it would have 22 taken a long time even for a fast-growing tumor, 23 because remember, you start out with very few 24 cells. And for those very few cells, maybe single 0094 1 cells, to get to that size takes a long time even 2 if it starts abruptly proliferating. 3 Q Does it change your opinion at all when you have 4 a--how fast did this cancer grow from November of 5 '04 until April of '05? 6 A Are you talking about the cancer in the breast or 7 in the metastases? 8 Q Well, you're--you're telling me that there was 9 cancer in the liver in November of '04 per your 10 opinions, correct? 11 A Yes. 12 Q Okay. How much did that cancer grow in the liver 13 from November of '04 until April of '05? 14 A Well, within the limits of the accuracy of the 15 imaging studies, obviously it would be below the 16 threshold of detection in November of '04 and above 17 the threshold of detection in '05. So how small 18 they were in November of '04, I do not know. I 19 just know that they were below the limit of what 20 the imaging studies could detect at that time. 21 Q If you were to hypothetically assume, sir, that 22 they were one sonometer in November of '04, based 23 upon their size in April of '05, what was their 24 growth rate? 0095 1 MR. BONEZZI: Objection. 2 MR. MARGOLIS: It's a hypothetical. 3 MR. BONEZZI: But I don't--that's an 4 inaccurate hypothetical based upon the imaging 5 study. If--if I may? 6 MR. MARGOLIS: Sure. 7 MR. BONEZZI: Because your question, if I 8 understood it-- 9 MR. MARGOLIS: April-- 10 MR. BONEZZI: --suggests that if-- 11 hypothetically, if there was--if there was a liver 12 met of one centimeter in size--that's what she had 13 in November of '04. That's what you said? 14 MR. MARGOLIS: Yes, sir. 15 MR. BONEZZI: Okay. But the finding 16 that's in April of '05 talks about multiple areas, 17 so I don't know how you can have just one area in 18 November of '04. That's the basis of my objection, 19 'cause they're talking about multiple small, low 20 attenuation liver lesions--plural--in the interior 21 medial segment, left lobe extending to the lateral 22 segment. The majority of these are approximately 23 one centimeter in diameter. And then there is a 24 descriptor. 0096 1 MR. MARGOLIS: I was talking about the 2 coalescent size. I didn't say that. 3 Q Let me--let me approach it this way: Look at what 4 Bill is showing you, which is the April 22nd, '05 5 CT of the pelvis and abdomen. And you're looking 6 at the area, and it talks about a certain size when 7 all of these nodules are added up or coalesced to 8 be what--four-point-one? 9 A Four-point-one centimeters. Yes. 10 Q Okay. Do you have an opinion as to what they would 11 have added up to in November of '04, given this 12 cancer? In other words, they coalesced to four- 13 point-one in April of '05, so I'm asking do you 14 have an opinion what their size would have been in 15 November of '04? Trying to figure out what your 16 thoughts are as to the growth rate between November 17 of '04 and April of '05. 18 A I do not know the answer to the question. But if I 19 recall correctly, the imaging studies from November 20 of '04 did not show any lesions in the liver, so 21 they must have been below the threshold of what 22 they could detect, which suggests to me that the 23 lesions in the liver were smaller than whatever 24 threshold that is. It could be a centimeter, it 0097 1 could be less. I'm not sure. 2 Q So-- 3 A And furthermore, coming back to this four-point-one 4 by eight--one-point-eight centimeter of coalescing 5 lesion, the other individual lesions may have been 6 approximately one centimeter in size, but this one 7 focus--it's hard to know how big the individual 8 lesions comprising that focus and coalescing into 9 that focus were. It's pure guesswork, because it 10 suggests that it's multiple nodules that coalesce 11 into this one four-by-one--four-point-one-by-one- 12 point-eight-centimeter focus. 13 Q Well, can we at least agree--well, let me ask you 14 this: Would the lesions have been coalescing in 15 November of '04, or would they still have been 16 separate? 17 A I have no idea. 18 Q All right. I guess, Doctor, this is where--and it 19 just may be because I'm certainly not the sharpest 20 tool in the shed. Okay? You're looking at April 21 of '05, and you're looking at the size of the 22 lesion in the liver, and you're telling me that 23 based upon what you know of the behavior and the 24 biology and the growth rate of this tumor, it had 0098 1 to be there for "X" amount of months to be that 2 size. Is that accurate in an oversimplified 3 manner? 4 A What I'm suggesting is that the tumor in the liver 5 probably was there in excess of two years, and 6 possibly quite a bit longer to reach that size in 7 April of '05. 8 Q Okay. And your knowledge to allow you to opine to 9 that within a reasonable degree of medical 10 probability is your understanding of how long it 11 takes for this cancer to grow to the size that's 12 demonstrated in the April 22nd, '05 CT of the 13 liver. Is that correct? 14 A Not this tumor specifically, but breast cancer in 15 general. 16 Q Okay. Well, I'm talking about this tumor 17 specifically, Doctor. I--I'm talking about this 18 tumor, this thirty-six-year-old woman. 19 A And maybe I don't understand what it is that you're 20 asking, because what we know is that they did not 21 detect liver metastases November of '04, and they 22 did detect liver metastases in April of '05. So 23 maybe you can rephrase your question to me if it 24 was back later in time. 0099 1 Q Sure. Let me gather my thoughts. In Rhonda Berry, 2 who had triple negative breast cancer, it is my 3 understanding that you are looking at the findings 4 of the liver CT that was done on 4-22-05, and you 5 are saying based upon the size of the metastatic 6 disease, it had to be there for at least "X" period 7 of time to grow to that size. Is that accurate? 8 A Yes. 9 Q Okay. And you are saying that based upon Rhonda's 10 triple negative cancer, within a reasonable degree 11 of scientific certainty given its aggressive growth 12 rate, it could not have only been in the breast in 13 September of '03; it had to be in the breast and 14 the liver? 15 A I think that's more likely than not. 16 Q Okay. 17 A That's only partially based on the growth rate of 18 the tumor. The other component, as I mentioned 19 before, is based on what I know about when breast 20 cancers metastasize. 21 Q But that doesn't apply to triple negative breast 22 cancer, does it? 23 A It applies also to triple negative breast cancers. 24 Q Okay. And I thought when I asked you earlier is 0100 1 there any literature you can cite me to that says 2 triple negative breast cancers metastasize early, 3 you told me there was no literature that you could 4 cite me to to support that. 5 A Not specifically. But triple negatives are clearly 6 included in all the other breast cancer studies 7 that were performed, so that information was 8 correct. 9 Q Is there a study specific to triple negative breast 10 cancer which supports your opinion that those 11 cancers metastasize early? 12 A I think I answered that question before, and I 13 cannot point to any particular articles solely on 14 triple negative breast carcinomas. 15 Q Okay. Let me--let me just do something in my own 16 mind here. Six months lapse from November of '04 17 'til April of '05. Okay. From September of '03 18 'til April of '05--three--so we've got about 19 sixteen months. 20 A Actually, it's more, isn't it, from September '03 21 to-- 22 Q September of '03-- 23 MR. BONEZZI: Eighteen. 24 Q Eighteen months. 0101 1 A Eighteen or nineteen even. 2 Q Although you cannot give me size in sonometers, do 3 you believe the cancer increased by fifty percent, 4 sixty percent, a third? Any opinion as to its size 5 in the liver from September of '03 until April of 6 '05? 7 A Well, any number I would give you would be purely 8 speculative, so I cannot really support that by the 9 evidence that is at hand. 10 MR. MARGOLIS: That's fine. Let me just 11 review my notes, sir. 12 (DISCUSSION OFF RECORD) 13 Q Doctor, other than the articles that you've been 14 kind enough to cite in your report, are there any 15 peer-reviewed articles in your C.V. which you 16 believe have application to this case, and if so, 17 would you just tell me the number? 18 A I don't want to take up too much time. I cannot 19 really think of any one right now. 20 Q Okay. I'm just reviewing your report, sir. 21 A I'm sorry. There is one other article that may be 22 of relevance that talks about basal-like breast 23 cancer, which is my reference No. 85. 24 Q Thank you. In the treatment of breast cancer, 0102 1 would you defer to surgeons on issues of treatment 2 and prognosis--breast surgeons? 3 A Certainly for treatment. 4 Q What about prognosis? 5 A Well, there's nothing you--there's nothing to be 6 done about prognosis, so it's not--it doesn't play 7 into treatment. So, I mean, they certainly have 8 their opinion on prognosis. That's fine. I have 9 my opinion about prognosis, as well. 10 Q In your clinical practice, sir, do you give 11 prognoses regarding patients' conditions, or do you 12 simply interpret specimens? 13 A My job is to interpret the pathologic findings. 14 Q Okay. In the last five years, have you had any 15 direct patient contact where you would give an 16 evaluation of the patient and then attach a 17 prognosis to the patient for their specific 18 disease? 19 A Communicating directly with a patient? 20 Q Yes, sir. 21 A I have not. 22 Q Doctor, I want to finish up by having you share 23 with me a little bit about your professional time. 24 How--you've been at Duke how long? 0103 1 A Since August 2005. 2 Q And prior to that? 3 A I was at Roswell Park Cancer Institute in Buffalo, 4 New York. 5 Q And you were there how long? 6 A Four years. 7 Q From '05 to present, how much of your time is 8 involved in academic pursuits, writing, 9 researching, teaching? 10 A About roughly sixty percent. 11 Q And forty percent then would be involved in the 12 clinical practice of pathology? 13 A That's correct. 14 Q And of the clinical practice, am I correct that it 15 would be all comers, not just interpreting breast 16 cancer pathology? 17 A That's not entirely correct. About ninety percent 18 of my practice is breast pathology. 19 Q Okay. So of the pathological part of your 20 practice, ninety percent is breast cancer? 21 A Yes. Well, it's not all cancer. It's breast 22 pathology. 23 Q Breast pathology? 24 A Yeah. 0104 1 Q Have you discussed the work that you've done in 2 this case with anyone other than Mr. Bonezzi? 3 A I have not. 4 Q Would your opinions in this case change at all, 5 hypothetically, if the cone down that was done on 6 8-25-04-- 7 MR. BONEZZI: Objection. You asked that 8 about two hours ago. 9 MR. MARGOLIS: Did I? Okay. 10 MR. BONEZZI: Yeah. Yeah. 11 Q All right. Sir, you've been very patient with me, 12 and I appreciate it. Have I given you the 13 opportunity to answer all of my questions? 14 A You have. 15 Q Have I been fair with you? 16 A You got me flustered, but I think it's been 17 relatively fair. 18 MR. MARGOLIS: All right. Thank you. I 19 am done. 20 (WITNESS EXCUSED) 21 22 (WHEREUPON, THE DEPOSITION WAS CONCLUDED AT 3:36 P.M.) 23 24 lsh (5-8-2009) 0105 1 -105- 2 INSTRUCTIONS TO WITNESS: 3 Please read carefully the following Witness 4 Certificates and then sign and date the appropriate 5 certificate. Do NOT sign both of them! 6 IF YOU MADE CORRECTIONS, SIGN CERTIFICATE (A): 7 CERTIFICATE OF WITNESS (A) 8 I, , a witness 9 in the above-entitled action, do hereby certify that I have 10 reviewed the transcript of my deposition and have attached 11 corrections to the same, along with the reason for each 12 correction. 13 Signed this day of , 2009. 14 (Joseph Geradts, M.D.) 15 ----------------------------------------------------------- 16 17 IF YOU DID NOT MAKE CORRECTIONS, SIGN CERTIFICATE (B): 18 CERTIFICATE OF WITNESS (B) 19 I, , a witness 20 in the above-entitled action, do hereby certify that I have 21 reviewed the transcript of my deposition and have made no 22 corrections to the transcription. 23 Signed this day of , 2009. 24 (Joseph Geradts, M.D.) lsh: (5-8-2009) 0106 1 STATE OF NORTH CAROLINA -106- COUNTY OF WAKE 2 C E R T I F I C A T E I, Lisa S. Harrington, a Notary Public in and for the 3 State of North Carolina, duly commissioned and authorized to administer oaths and to take and certify depositions, do 4 hereby certify that on May 8, 2009, JOSEPH GERADTS, M.D., being by me duly sworn to tell the truth, thereupon 5 testified as above set forth as found in the preceding 105 pages, his examination being reported by me verbatim and 6 then reduced to typewritten form under my direct supervision; that the foregoing is a true and correct 7 transcript of said proceedings to the best of my ability and understanding; that I am not related to any of the 8 parties to this action; that I am not interested in the outcome of this case; that I am not of counsel nor in the 9 employ of any of the parties to this action, and that 10 signature of the witness was not waived. 11 IN WITNESS WHEREOF, I have hereto set my hand, this 12 the 12th day of May, 2009. 13 14 15 Notary Public 16 Certificate No. 19952900166 17 18 Lisa S. Harrington 19 PACE REPORTING SERVICE 20 P. O. Box 252 21 Cary, North Carolina 27512 22 Telephone: 919/859-0000 - Raleigh 23 910/433-2926 - Fayetteville 24 910/790-5599 - Wilmington 0107 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO 2 CASE NO. CV-06-590509 3 JAMES BERRY, etc, et al., ) A D D E N D U M T O ) 4 Plaintiffs, ) D E P O S I T I O N ) 5 vs. ) O F ) 6 HELEN S. HAN, M.D., et al., ) J O S E P H ) 7 Defendants. ) G E R A D T S, M. D. ------------------------------ 8 PAGE LINE SHOULD READ REASON FOR CHANGE 9 10 11 12 13 14 15 16 17 18 19 Signed this the day of , 2009. 20 21 22 23 (Joseph Geradts, M.D.) 24 lsh: (5-8-2009) 0108 1 Dr. Geradts -i- 2 E X H I B I T I N D E X 3 Exhibit No. Description Page Marked 4 Plaintiff's 1 Curriculum Vitae 3 5 Plaintiff's 2 March 3, 2009 Report 3 6 Plaintiff's 3 Race, Breast Cancer 3 Subtypes, and Survival 7 In the Carolina Breast Cancer Study Article 8 Plaintiff's 4 Written correspondence N/A 9 Plaintiff's 5 Sketch 48 10 Plaintiff's 6 Handwritten Notes 54 11 Plaintiff's 6A Handwritten Notes 88 12 Plaintiff's 6B Handwritten Notes 88 13 Plaintiff's 6C Handwritten Notes 88 14 Plaintiff's 6D Handwritten Notes 88 15 Plaintiff's 6E Handwritten Notes 88 16 Plaintiff's 6F Handwritten Notes 88 17 Plaintiff's 6G Handwritten Notes 88 18 Plaintiff's 6H Handwritten Notes 88 19 Plaintiff's 6I Handwritten Notes 88 20 21 22 Plaintiff's 1 was retained by Mr. Margolis. 23 Plaintiff's 4 was not marked for identification, and it was retained by the witness. 24 Plaintiff's 6 through 6I were retained by the witness.