1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 CATHLEEN C. LANE, etc., et al., 4 Plaintiffs, 5 JUDGE SUSTER 6 -vs- CASE NO. 322177 7 GEORGE B. KIRBY, D.D.S., 8 et al., 9 Defendants. 10 - - - - 11 Deposition of MICHAEL S. HAUSER, DMD, MD, taken 12 as if upon cross-examination before Laura L. Ware, a 13 Notary Public within and for the State of Ohio, at 14 the offices of Weston, Hurd, Fallon, Paisley & 15 Howley, 2500 Terminal Tower, 50 Public Square, 16 Cleveland, Ohio, at 1:45 p.m. on Thursday, October 17 28, 1999, pursuant to notice and/or stipulations of 18 counsel, on behalf of the Plaintiffs in this cause. 19 20 - - - - 21 WARE REPORTING SERVICE 22 3860 WOOSTER ROAD ROCKY RIVER, OH 44116 23 (216) 533-7606 FAX (440) 333-0745 24 25 2 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. Linton & Hirshman 3 Hoyt Block Building, Suite 300 700 West St. Clair Avenue 4 Cleveland, Ohio 44113 (216) 781-2811, 5 On behalf of the Plaintiffs; 6 Forrest A. Norman, III, Esq. 7 Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower 8 50 Public Square Cleveland, Ohio 44113 9 (216) 687-3223, 10 On behalf of the Defendant George Kirby, D.D.S.; 11 Matthew J. Hatchadorian, Esq. 12 Gallagher, Sharp, Fulton & Norman Seventh Floor Bulkley Building 13 1501 Euclid Avenue Cleveland, Ohio 44115 14 (216) 241-5310, 15 On behalf of the Defendants Richard L. Whelan, D.D.S. (Deceased) 16 and Jean Whelan, Executrix of the Estate of Richard L. Whelan; 17 Cheryl D. Atwell, Esq. 18 Mazanec, Raskin & Ryder 100 Franklin's Row 19 34305 Solon Road Cleveland, Ohio 44139 20 (216) 248-7906, 21 On behalf of the Defendants William J. Witt, M.D. 22 and EENT Associates; 23 24 25 3 1 APPEARANCES: (CONT.) 2 Roy A. Hulme, Esq. Reminger & Reminger 3 113 St. Clair Building Cleveland, Ohio 44114 4 (216) 687-1311, 5 On behalf of the Defendants Howard J. Synenberg, D.D.S. 6 and Howard J. Synenberg, D.D.S., Inc.; 7 Richard J. Rymond, Esq. Reminger & Reminger 8 113 St. Clair Building Cleveland, Ohio 44114 9 (216) 687-1311, 10 On behalf of the Defendants Kenneth Callahan, D.D.S. 11 and Ronald Bell, D.D.S.; 12 Michele Y. Wharton, Esq. Davis & Young 13 1700 Midland Building Cleveland, Ohio 44115 14 (216) 348-1700, 15 On behalf of the Defendant Robert L. Katz, M.D. 16 17 18 19 20 21 22 23 24 25 4 1 2 W I T N E S S I N D E X 3 PAGE 4 CROSS-EXAMINATION 5 BY MR. HIRSHMAN 5 CROSS-EXAMINATION 122 6 BY MR. HATCHADORIAN 7 CROSS-EXAMINATION 126 BY MR. HULME 8 CROSS-EXAMINATION 127 9 BY MR. RYMOND 10 RECROSS-EXAMINATION 130 BY MR. HIRSHMAN 11 12 E X H I B I T I N D E X 13 PAGE 14 Plaintiffs' Exhibits 1 and 2 10 Plaintiffs' Exhibit 3 11 15 Plaintiffs' Exhibit 4 132 16 17 18 19 20 21 22 23 24 25 5 1 MICHAEL S. HAUSER, DMD, MD, of lawful age, 2 called by the Plaintiffs for the purpose of 3 cross-examination, as provided by the Rules of Civil 4 Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as follows: 6 CROSS-EXAMINATION OF MICHAEL S. HAUSER, DMD, MD 7 BY MR. HIRSHMAN: 8 Q. Good afternoon. 9 A. Good afternoon. 10 Q. I think we introduced ourselves somewhat 11 informally. I'm Toby Hirshman. 12 A. Yes. 13 Q. And I represent Cathleen Lane and her family. 14 A. Okay. 15 Q. You've been retained as an expert witness on behalf 16 of Dr. Kirby, if I'm not mistaken; is that correct? 17 A. That's correct. 18 Q. Why don't you state your name for the record and 19 your address, home address. 20 A. It's Dr. Michael Stuart Hauser, and the home address 21 is 2717 Ashley Road, Shaker Heights, Ohio. 22 Q. I notice you have some materials in front of you 23 laid out on the table, and then you've got a box of 24 materials behind you. Are those all materials that 25 you have been provided in regard to your review of 6 1 this case? 2 A. The majority of them are materials I have been 3 provided and some are materials that I have 4 developed in defense of Dr. Kirby, including my 5 report. 6 Q. Now, before we do anything else, let's get a sense 7 of what you have here. And why don't you give me 8 your piles there one at a time. I'll take a quick 9 look at them and then we'll move on. 10 A. Would it be easier if you just came around and 11 flipped through them? 12 Q. Maybe not. Why don't you just take this pile on 13 your right and let me see that for a second. 14 A. Okay. 15 Q. Do you know Dr. Carl Allen? 16 A. No. 17 Q. Do you know Dr. John Bogdasarian? 18 A. No. 19 Q. Do you know Nathan Levitan? 20 A. No. 21 Q. You do not? 22 A. No. 23 Q. How about Dr. Dierks? 24 A. No. 25 Q. Never heard of him? 7 1 A. I've heard his name in the literature. 2 Q. Have you heard of Dr. Allen through the literature? 3 A. Yes. 4 Q. And what is it that you know about Dr. Allen as it 5 relates to his writings? 6 A. I know very little of his writings, except that I 7 understand he's a coauthor of a textbook in oral 8 pathology, and I know he's a professor of oral 9 pathology at Ohio State University. 10 Q. One of the -- it looks like you've been sent various 11 reports that have been authored by the various 12 experts in this case; is that a fair statement as 13 far as it goes? 14 A. Yes. 15 Q. I note that one of them is a Dr. Louis Rossman; is 16 that correct? 17 A. Yes. 18 Q. A report of his dated April 11th, 1999? 19 A. Yes. 20 Q. You've reviewed that? 21 A. Yes. 22 Q. So as part of the opinions that were in anticipation 23 of the opinions that you are going to be rendering 24 here today, one of the pieces of material that you 25 reviewed was Dr. Rossman's report? 8 1 A. Yes, although I do not believe I had this report 2 when I authored my report. 3 Q. You didn't have it when you authored your letter, 4 but you reviewed it prior to today's deposition? 5 A. Yes. 6 Q. Okay. That's pile one. I'm sorry if I messed it up 7 too badly. 8 A. Well, if we don't have to refer to it, that's fine. 9 Q. Let's see what's in your next pile of materials. 10 The top item is your letter of April 15th, 1999? 11 A. Correct. 12 Q. That was written to John Travis? 13 A. Yes. 14 Q. Is this the only report that you've written in 15 regard to this case? 16 A. Yes. 17 Q. Is it the only draft of your report? 18 A. It's the only draft that exists. As I am making a 19 report, I read it, author it, edit it, and then when 20 it is satisfactory I send it out. The other ones 21 don't exist. 22 Q. Can you tell me how many drafts were made prior to 23 the end result, which I have here before me? 24 A. No. 25 Q. Can you give me an estimate as to whether it was 9 1 more than two? 2 A. It usually takes me two or three drafts, but the 3 drafts are not so much changing my opinions but 4 trying to do the best I can in grammar school to 5 make it as readable as possible. 6 Q. In between drafts did you have an opportunity to 7 speak with Mr. Travis? 8 A. No. 9 Q. So the drafts that you wrote were each rewritten 10 without any interchange of comments or ideas with 11 Mr. Travis? 12 A. Correct. 13 Q. I have before me a letter dated December 3rd, 1998 14 that you wrote to John Travis? 15 A. Yes. 16 Q. And in that letter you indicate that at that time 17 you have formed a conclusion that Dr. Kirby in his 18 care and treatment of Cathleen Lane comported with 19 acceptable standards of care? 20 A. Yes. 21 Q. Correct? 22 A. Yes. 23 Q. At the time that you wrote that report, had you had 24 an opportunity to read the deposition of Dr. Kirby? 25 A. I have to look at this. If I said that I read it, I 10 1 would have read it. Let me refer to the report. 2 Point 12 I say that I have reviewed the deposition 3 of Dr. Kirby. 4 Q. You did, okay. 5 A. Yes. 6 Q. How about the deposition of Cathleen Lane? 7 A. Yes. 8 Q. And is that in point 12 as well? 9 A. Yes. 10 MR. HIRSHMAN: All right. Let me mark 11 these as exhibits, if I can. 12 - - - - 13 (Thereupon, Plaintiffs' Exhibits 1 and 14 2 were mark'd for purposes of identification.) 15 - - - - 16 Q. I've marked your letter of December 3rd, 1998 as 1 17 and your letter of May 7th, 1999 as 2, both of those 18 letters being to Mr. Travis; is that correct? 19 A. Yes. 20 Q. All right. You can hold onto those. I'll give you 21 that too. 22 I'm looking at some notes that you wrote that 23 are in, I presume, your own hand? 24 A. Yes. 25 Q. And attached to those notes is a three-page clinical 11 1 dictation of Dr. Silverman, I believe; is that 2 correct? 3 A. That's correct. 4 Q. And also attached to it is a one-page dictation by 5 Dr. Nag from Ohio State; is that correct? 6 A. I assume so. I'd have to look. 7 Q. Okay. Take a look. 8 A. Yes. 9 MR. HIRSHMAN: All right. Let's mark 10 that as Exhibit 3, if we could. 11 - - - - 12 (Thereupon, Plaintiffs' Exhibit 3 was 13 mark'd for purposes of identification.) 14 - - - - 15 MR. NORMAN: We'll have copies made 16 after the deposition for anyone who wants 17 them. 18 Q. Tell me, if you would, what these notes are. Are 19 these notes that you prepared as you went through 20 the records you were reviewing? 21 A. Yes. 22 Q. So they constitute things that you thought were of 23 sufficient relevance and importance to document; 24 would that be a fair characterization? 25 A. Yes. 12 1 Q. All right. I see here at the bottom of page one you 2 indicate that the patient called the office of Dr. 3 Katz and was told that the biopsies were negative? 4 A. Yes. 5 Q. Correct? 6 A. Yes, I recall reading that, I believe, in her 7 deposition. 8 Q. All right. Do you have any reason to dispute that 9 version of the facts? 10 A. There is some dispute in the testimony, but I wrote 11 down what I read in the deposition. 12 Q. I don't see in here any reference to another set of 13 facts. Was there another set of facts that was 14 postulated, by any of the parties to this matter, as 15 to what happened during the telephone call after the 16 biopsy? 17 A. I don't know if you consider her statement a fact or 18 not. That is a statement that was written in her 19 deposition that I wrote down. 20 Q. Do you know of any testimony or documentation that 21 would suggest that her rendition of the facts is 22 incorrect? 23 A. Yes. 24 Q. And what is that? 25 A. Testimony of Dr. Witt. 13 1 Q. What is it that Dr. Witt testified to that is in 2 conflict with what Cathleen testified to regarding 3 what she saw or what she was told about the results 4 of the October 10th, 1995 biopsy? 5 A. I don't have complete recollection of what he said. 6 My limited recollection is that he stated he had a 7 conversation with her explaining the results. 8 Q. That he recalled such a conversation? 9 A. Yes. 10 Q. And that he recalled telling her what? 11 A. I told you what my limited recall is on that. 12 Q. All right. Well, let's -- let me ask you a 13 hypothetical for a second. 14 Let's assume that Dr. Witt took a biopsy, as he 15 did on October 10th, 1995, of an area which he found 16 to be suspicious both on that day and on October 3rd 17 of 1995 when he initially saw Cathleen. Can we 18 assume that? 19 A. Yes. 20 Q. All right. Let's further assume that when the 21 biopsy results were returned they showed a severe 22 dysplasia of the oral mucosa. 23 A. Okay. 24 Q. Let's further assume that Cathleen called the office 25 of Dr. Witt and Katz on the 13th of October -- 14 1 A. Okay. 2 Q. -- 1995. And let's additionally assume that what 3 Cathleen was told -- or let's assume that the 4 specific reason for her call was to inquire about 5 the results of the biopsies that were taken. 6 A. Okay. 7 Q. And let's additionally assume that she was told by a 8 voice at the other end that the results were 9 negative. 10 A. Okay. 11 Q. And that she further inquired as to whether there 12 was any need for further follow-up and was told that 13 there was not. All right? 14 A. Okay, yes. 15 Q. If we assume those facts to be true, do you have an 16 opinion as to whether or not Dr. Witt comported with 17 acceptable standards of care as it relates to the 18 communication of the results of that biopsy? 19 MS. ATWELL: Objection. 20 MR. NORMAN: Objection. Toby, he 21 wasn't retained to render an opinion with 22 respect to Dr. Witt. 23 MR. HIRSHMAN: Well -- 24 MR. NORMAN: And nowhere in his report 25 has he set forth any testimony or opinions that 15 1 that is what will form the basis of his 2 testimony, so I think this is a little outside 3 the scope of what Dr. Hauser is here to opine 4 upon. 5 Q. Do those facts leave you without the ability to form 6 an opinion as I've set them? 7 A. Correct, I am not here to render an opinion. 8 Q. I didn't ask you whether you're here to render an 9 opinion. 10 A. I'm not going to render an opinion as to the 11 standard of care as provided by any doctor but Dr. 12 Kirby. 13 Q. I understand what you're retained for and what 14 you've been paid for, but I'm asking you whether 15 those facts leave you without an opinion as to the 16 standards of care and whether Dr. Witt comported 17 with acceptable standards of care under those 18 circumstances? 19 MS. ATWELL: Objection. 20 A. Well, yeah, I am not prepared to answer that 21 question. 22 Q. Well, in other words, you are unable to form an 23 opinion, you're unable to form an opinion as to 24 whether that kind of conduct constitutes acceptable 25 care? 16 1 MS. ATWELL: Objection. 2 MR. HULME: Objection to the form of 3 the question. 4 A. I am not going to render an opinion as to the 5 standard of care provided by Dr. Witt. 6 Q. I asked you whether you're able to render an opinion 7 based on those facts as I set them forth. 8 MS. ATWELL: Objection. 9 MR. NORMAN: Based on the 12 sentences 10 or so that you gave him? I mean, no doctor, no 11 expert, is going to render an opinion, Toby, 12 based on 12 -- 13 A. Assumptions, as I recall. 14 MR. NORMAN: -- statements. 15 Q. You can't -- in other words, you have no opinion? 16 A. I have no opinion as to that hypothetical scenario. 17 Q. In other words, there is no hypothetical I could 18 give you that would sufficiently satisfy you as to 19 the underlying facts that would allow you to render 20 an opinion? 21 MS. ATWELL: Objection. 22 A. If you present a hypothetical as related to the care 23 and treatment provided by Dr. Kirby, I will probably 24 be able to answer in both the hypothetical and as to 25 the facts. 17 1 Q. What that means is that either you have a mind 2 that's configured in such a way so that you can only 3 formulate opinions in regard to Dr. Kirby, or else 4 it means that you just simply do not choose to form 5 opinions as it relates to others than Dr. Kirby, 6 correct? 7 MS. ATWELL: Objection. 8 MR. NORMAN: Objection. What the heck 9 does that mean, Toby? 10 A. You would have to clarify that for me also. 11 MR. HULME: I don't think it was 12 intended as a question. 13 MR. HIRSHMAN: I'm not going to go any 14 further with this deposition until I get an 15 order from the Court regarding this issue. 16 I don't see how it is that you feel 17 that you're in a position to tell him what 18 questions he can answer and what questions he 19 can't. 20 MR. NORMAN: I haven't done that, 21 Toby. 22 MR. HIRSHMAN: Well, then I will 23 continue to pursue that line of questioning. 24 Q. If I were to give you a hypothetical regarding Dr. 25 Kirby, would you be able to answer it? 18 1 A. Yes. 2 Q. If I were to give you a hypothetical regarding Dr. 3 Witt, would you be able to answer it? 4 A. Perhaps, as long as it does not ask me to render an 5 opinion as to the standard of care that he 6 provided. 7 Q. If I asked you a hypothetical regarding Dr. Kirby 8 pertaining to whether or not he comported with 9 acceptable standards of care, would you be able to 10 answer the question? 11 A. I believe I would. 12 Q. But if I ask you a question regarding Dr. Witt as to 13 whether he comported with acceptable standards of 14 care, you would not be able to come to an opinion on 15 that issue? 16 A. I will have no opinion on that issue. 17 Q. Very interesting. All right. And I take it that's 18 because you can't form an opinion as it relates to 19 Dr. Witt? 20 MR. HULME: Objection to the form of 21 the question. 22 Q. Let's do it this way. I gave you a hypothetical. 23 What more information do you need in a hypothetical, 24 other than the information I gave you as it relates 25 to Dr. Witt, in order to be able, and I underline 19 1 the word able, to form an opinion as it relates to 2 the care and treatment rendered by Dr. Witt and 3 whether it comports with the acceptable standard of 4 care? 5 MS. ATWELL: Objection. 6 MR. HULME: Objection. Let me put my 7 objection on so I can stop saying objection to 8 the form of the question. You keep flipping 9 back and forth from he says I'm not willing to, 10 you keep asking are you able to. 11 MR. HIRSHMAN: That's right. 12 MR. HULME: And you're saying I'm not 13 willing to. 14 MR. HIRSHMAN: And I'm asking him 15 whether he's able to, and he refuses to answer 16 the question as to whether he's able to. 17 A. I can tell you under what circumstances I would be 18 able to. 19 Q. Okay. 20 A. If I were hired by you to render an opinion one way 21 or another, I believe I would be able to and it 22 might be contrary to the opinion that you would wish 23 me to say. Or if I were hired by Dr. Witt I might 24 be able to render an opinion, and that opinion may 25 be contrary to what they would hope I would say. 20 1 But under the circumstances as being asked to 2 defend the practice and treatment of Dr. Kirby, I am 3 here to defend the practice and treatment of Dr. 4 Kirby provided to Cathleen Lane. I am not able to 5 provide an opinion as to the standard of care 6 provided by Dr. Witt. 7 Q. All right. I'm looking at one of your notes, and 8 it's a visit that Cathleen had with Dr. Kirby. 9 A. Yes. 10 Q. Who you do have opinions about. 11 A. Yes. 12 Q. And it's dated December 8th, 1995. Do you remember 13 that particular visit without looking at your notes, 14 or are you going to be -- 15 A. I would probably have to refer to my notes to be as 16 accurate as possible. 17 Q. I'll give them to you in a minute then. Doctor, 18 what is an abscess? 19 A. An infection, type of infection. 20 Q. Is it synonymous with an infection or is there a 21 difference between an abscess and an infection? 22 A. An abscess is a type of infection. 23 Q. Tell me, if you would, what the difference is 24 between an abscess and an infection. 25 A. Well, there are many kinds of infections. For 21 1 example, you can have bronchitis or pharyngitis, a 2 common sore throat, and those are infections, 3 they're bacterial organisms in the tissues, but you 4 don't have an abscess. An abscess is generally a 5 collection of pus in a pocket. 6 Q. All right. And that's a definition of abscess that 7 you utilize in your practice? 8 A. Yes. 9 Q. That's the definition of abscess you would expect a 10 dentist, any ordinary dentist, to utilize in his 11 practice? 12 A. I think that would be reasonable. 13 Q. All right. Is an abscess something that has a -- 14 there are abscesses of the gum, periodontal 15 abscesses? 16 A. Yes. 17 Q. And there are also endodontic abscesses. Are those 18 two different entities or what's the difference 19 between those two? 20 A. The periodontal abscess you referred to is generally 21 an abscess around the neck of a tooth where the 22 tooth and the gum meet, that area is called the 23 periodontium, and occasionally that area can be 24 infected generally due to pocketing in the gums. 25 Q. Okay. 22 1 A. An endodontic abscess happens when the pulp of the 2 tooth, the inside of the tooth, gets infected over a 3 period of time. The infection travels down the 4 roots and then gets into the bone around the tooth, 5 and sometimes it works its way out into the gum. 6 An acute infection in that area would be an 7 acute abscess. And a chronic infection in that area 8 would be considered a chronic abscess. So if it's 9 formed from within the tooth, it's called an 10 endodontic abscess. If it's formed from around the 11 gum, it's called periodontal abscess. And sometimes 12 you have it both at the same boundary, referred to 13 as an endodontal/periodontal lesion. 14 Q. Do abscesses of the gum and tooth area typically 15 present themselves as a swelling on clinical 16 observation and examination? 17 A. When they are clinically apparent, one sees a 18 swelling most of the time. Sometimes some you don't 19 see a swelling, you see a drainage track called the 20 fistula. Sometimes you have clinical symptoms of a 21 sore or loose tooth where you may not see swelling 22 but you can have an abscess. 23 Q. It's acute when it's an enclosed system? 24 A. No, not necessarily. It's acute when you have an 25 actively expanding lesion. 23 1 Q. And it's chronic under what circumstances? 2 A. When it's indolent, it's just sitting. 3 Q. Would it be fair to say that chronic abscesses 4 typically have made their way by means of fistula or 5 drainage track to the oral cavity? 6 A. No, but it is more common for a chronic abscess to 7 do that. 8 Q. All right. When an abscess presents in a dental 9 office, and you're both a dentist, I believe, and an 10 M.D.? 11 A. Correct. 12 Q. Is there a way that they typically present in terms 13 of whether they're hard or soft? 14 A. In my experience, if there is a swelling it's more 15 often soft and fluctuant, which means compressible. 16 Q. All right. So abscesses, by definition, are 17 fluctuant and compressible? 18 A. No, but in my experience they are more often 19 fluctuant and compressible. 20 Q. But not always? 21 A. Correct. 22 Q. So by calling something an abscess, it doesn't 23 really tell you anything about whether it's 24 fluctuant or hard? 25 A. Not necessarily. 24 1 Q. The last thing from this pile is a CV of yours, I 2 take it? 3 A. That's right. 4 Q. Okay. Let's look at the last pile then. 5 All right. And then on the floor you have 6 various additional materials? 7 A. Yeah. 8 Q. Which I think what I'm going to do, rather than go 9 through them now, is go through them once we're 10 done. 11 A. Okay. 12 Q. Tell me, if you would, what the nature of your 13 practice is. 14 A. Excuse me? 15 MS. ATWELL: No, Forrest, pass that 16 last stack around. 17 MR. NORMAN: This stack? 18 MS. ATWELL: Yeah. 19 MR. HIRSHMAN: We did mark an Exhibit 20 3, did we not? 21 MR. NORMAN: That's not been marked. 22 They're just another pile of material. 23 Q. I'm sorry, just give me some sort of an idea of what 24 type of practice you have, if you would. 25 A. Yes, the nature of my practice is one of oral and 25 1 maxillofacial surgery, which would be basically 2 related to surgical treatment, diagnostic treatment 3 of various diseases of the mouth and the jaws. 4 Q. All right. Do you know Dr. Stepnick? 5 A. I know of him. I don't know him personally. 6 Q. You're at Mt. Sinai? 7 A. Yes. 8 Q. Is your practice still located essentially at Mt. 9 Sinai? 10 A. No. It's primarily located at 23250 Chagrin 11 Boulevard, Beachwood, and I have switched my 12 hospital surgery primarily to University Hospitals 13 of Cleveland. 14 Q. So you practice in the same hospital with Dr. 15 Stepnick? 16 A. I think so. 17 Q. Do you know Dr. Witt? 18 A. No. 19 Q. You don't know him? 20 A. No. 21 Q. He practices at your hospital, but in a different 22 department; is that correct? 23 A. I think so. 24 Q. How about Dr. Katz, do you know him? 25 A. No. 26 1 Q. Robert Katz? 2 A. No. 3 Q. And by know him I don't mean good friends, but you 4 just have had no professional relationship with him 5 whatsoever? 6 A. I would not recognize Dr. Katz. 7 Q. How about Dr. Kirby? 8 A. I believe I met Dr. Kirby at a dental conference 9 about ten years ago. 10 Q. That's the only association you've had with him? 11 A. Correct. 12 Q. You met with him ten years ago at a conference and 13 it never -- he's never referred any cases to you? 14 A. No. 15 Q. How about Dr. Tucker; do you know him? 16 A. No. 17 Q. Do you know what kind of a practice Dr. Stepnick 18 has -- 19 A. Yes. 20 Q. -- what types of surgeries he does, you know -- 21 A. I know to a degree he's a head and neck surgeon -- 22 Q. Okay. 23 A. -- in the department of otolaryngology and would do 24 surgery related to that area of the body. 25 Q. And as it relates to Cathleen's case, he did, in May 27 1 of 1996, a segmental resection of her mandible 2 associated with a free flap, a fibular free flap; 3 did he not? 4 A. That's my understanding. 5 Q. Do you do those types of procedures? 6 A. No. 7 Q. As it relates to cancer of the oral cavity, give me 8 some insight into what your involvement and 9 management is of patients who either have that 10 disease or are suspected of having that disease. 11 A. Yes. I am frequently referred patients for the 12 purposes of diagnosis of possible -- of lesions 13 suspected that could be oral cancer by the dental 14 community. 15 From time to time when I have a patient with a 16 positive diagnosis for cancer, I may elect to 17 provide surgical treatment myself if the cancer is 18 such that a limited resection is likely to resolve 19 the disease. If the disease process is such that a 20 more extensive resection would be required, then I 21 refer the patient to a head and neck surgeon. 22 Q. What head and neck surgeons do you make referrals to 23 under those circumstances? 24 A. The person I refer to the most is Dr. Sanford 25 Timen. 28 1 Q. He's an ENT, I believe, is he not? 2 A. Yes. 3 Q. Any others that you've referred cases to for 4 extensive head and neck surgery -- 5 A. No. 6 Q. -- besides Dr. Timen? 7 A. None that I am recalling. 8 Q. So if it's a lesion that's going to be in need of a 9 less radical procedure and surgery you, within your 10 practice, do those types of surgeries? 11 A. Yes. 12 Q. What kinds of surgeries are those? 13 A. Excisions and localized resections. 14 Q. How do you decide whether a lesion is one that's 15 within the realm of your capabilities to do an 16 excision or a localized resection? 17 A. On the basis of the clinical appearance, the biopsy, 18 and any other adjunctive data such as CAT scan or 19 x-ray. 20 Q. Well, I take it if one is dealing with a dysplastic 21 lesion that is something that you, from time to 22 time, approach surgically? 23 A. Yes. 24 Q. So in a patient with severe dysplasia you might do a 25 local excision of the dysplastic area? 29 1 A. Yes. 2 Q. In a patient with severe dysplasia you might well do 3 a laser obliteration of the dysplastic area? 4 A. Yes. 5 Q. What other forms of treatment are you in a position 6 to offer to patients who have a severe dysplasia of 7 their oral mucosa? 8 A. One could consider a wider excision, if it's 9 appropriate for the patient, and one can consider no 10 treatment, other than observation and constant 11 monitoring. 12 Q. All right. When you're confronted with a patient, 13 and I take it you've seen patients like this in your 14 practice -- 15 A. Yes. 16 Q. -- with a severe dysplasia, presumably you make 17 certain recommendations to them and provide them 18 with some sort of insight into what types of therapy 19 are available? 20 A. Yes. 21 Q. And in a case like Cathleen Lane's, as of October 22 10th, 1995 do we have an understanding that she was 23 diagnosed at least by path report as having a severe 24 dysplasia? 25 A. Yes. 30 1 Q. Do you have an opinion as to whether she had a 2 severe dysplasia at that point in time? 3 A. My opinion is that she did. 4 Q. All right. If Cathleen had come to you and had 5 provided you with a copy of her path report and said 6 what should I do, Doctor, what would you have told 7 her? 8 MS. ATWELL: Objection. 9 MR. HATCHADORIAN: You're talking in 10 October or December? 11 MR. HIRSHMAN: Now I'm talking about in 12 October. 13 A. Okay. It would be difficult for me to accurately 14 answer that because I don't have a clear picture in 15 my mind of the extent of the dysplasia, so I can 16 answer more in the hypothetical that if she had a 17 clearly demarcated area of dysplasia, I would 18 recommend, based on that path report, excising it 19 back to a clear margin. 20 But I cannot tell you in actuality what I would 21 have done for her. I can only tell you what I would 22 do with a patient with a clearly demarcated lesion. 23 Q. And how do you determine whether a lesion is clearly 24 demarcated? 25 A. Clinical evaluation. 31 1 Q. One way is to look at the area and see what it looks 2 like? 3 A. Yes. 4 Q. And if you have an area that has, let's say, a 5 granular surface to it and the granular surface 6 occupies a certain space, and then as you go out 7 from the center of that lesion the mucosa begins to 8 look normal you would presumably be able to 9 determine the boundaries of that lesion? 10 A. Yeah. In the hypothetical if that is what I saw, I 11 would excise back to what looked like normal tissue 12 and then reassess after I got the pathology report 13 of the margins. That would be my approach to that 14 hypothetical. 15 Q. Another possibility would be to do punch biopsies or 16 something of different portions of the lesion to see 17 where the dysplasia ends? 18 A. Yes, one could do it that way and then sort of map a 19 diagram and then decide how much to excise. Again, 20 I would have to actually see that patient in order 21 to make that kind of determination. 22 Q. You've seen Dr. Witt's drawing, I suppose, that he 23 did on October 3rd of 1995? 24 A. Yes. 25 Q. Assuming that the drawing accurately portrays the 32 1 location and extent of the lesion, the dysplastic 2 lesion as clinically observed, you would have 3 offered Cathleen, if she had come to you, an 4 excision? 5 MS. ATWELL: Objection. 6 A. May I look at that diagram if it's available? 7 Q. Sure. 8 MR. NORMAN: Do you have a copy of it, 9 Toby? 10 MR. HIRSHMAN: Yeah. 11 Q. I'm showing you a drawing that was done by Dr. Witt 12 in his office on October 3rd, 1995. And there are 13 two drawings on that particular page, one being of 14 the right tip of the tongue and the other being of 15 the -- what would you describe that area that is on 16 the drawing on the right, how would you describe 17 that? 18 A. To the best of my ability to interpret these notes, 19 the doctor has drawn the tongue, I believe he has 20 drawn the dental alveolus with three teeth 21 demarcated from the top view, and the lesion appears 22 to be centered in between the tongue and the 23 alveolus, and that would most likely be the floor of 24 the mouth. 25 Q. All right. Given that sort of a lesion, as defined 33 1 by that picture and the path report of October 10th, 2 1995, had Cathleen come to you what would you have 3 offered her? 4 MS. ATWELL: Objection. 5 A. Had she come to me with a lesion of this size and in 6 this area, which looks like it's about the size of a 7 tooth on the floor -- 8 MR. HATCHADORIAN: Clarification, are 9 you talking about the floor of the mouth or the 10 tongue? 11 A. The floor of the mouth, left side, it looks like 12 it's about the size of the adjacent tooth he drew, 13 perhaps a little smaller, in the floor of the mouth, 14 with a punch biopsy suggesting diagnosis of severe 15 dysplasia, I would have recommended that Cathleen 16 have excision of that lesion. 17 Q. All right. Thank you. Why? 18 A. There are cases of severe dysplasia progressing on 19 to carcinoma in situ and then progressing on to 20 squamous cell cancer, and it is my recommendation -- 21 would be my recommendation to the patient to remove 22 the dysplastic tissue. However, I am fully aware 23 there are other physicians who would have a 24 different opinion. 25 Q. All right. If a patient presents to you with a 34 1 cancer of the mouth as opposed to a precancerous 2 lesion such as dysplasia, do you, in your practice, 3 do surgery on such patients? 4 A. From time to time. 5 Q. Does that depend on how they're staged? 6 A. In large part. Today it's complex because of the 7 managed care environment. But to simplify the 8 answer the best I can, if they are staged such that 9 it's a lesion that would likely lead to resolution 10 with a limited resection, then I am comfortable 11 performing that operation. 12 Q. All right. Would it be fair to say then that -- 13 well, let's try it this way. If confronted with a 14 lesion in a patient's mouth that constitutes a 15 stage -- a T-2 tumor, okay? 16 A. Yes. 17 Q. Which probably is something we can all agree on as 18 to what a T-2 tumor is, that would be a tumor 19 somewhere in between two and four centimeters in 20 size? 21 A. Correct. 22 Q. Would you do surgery on such a patient in your 23 practice? 24 A. It would depend on the circumstances. For example, 25 a tumor of that size may be sitting next to a 35 1 structure I am not comfortable operating on, in 2 which case I would not perform the surgery. 3 A tumor that size sitting on the tip of the 4 tongue, which is likely only to involve the tongue, 5 I would be comfortable. So it would vary a lot on 6 the circumstances. 7 Q. All right. T-2 tumors at the floor of the mouth in 8 the area of the tooth 19? 9 A. Again, I would have to really evaluate that patient 10 and come to the conclusion that truly a limited 11 resection is likely to remove the tumor and some of 12 the surrounding tissue. There's a great variation 13 in between a two centimeter tumor and a four 14 centimeter tumor in terms of the amount of tissue 15 one might have to remove, so I would have to 16 clinically assess that patient. 17 Q. So under some circumstances if it were two 18 centimeters in size you might be willing to approach 19 it, provided you could do so without getting 20 involved with structures you feel uncomfortable 21 with? 22 A. Correct. 23 Q. One of those structures in the area that we've just 24 discussed would presumably be the mandible itself? 25 A. No, I would be quite comfortable resecting a portion 36 1 of the mandible. 2 Q. So you would be comfortable resecting a portion of 3 the mandible as long as it's a saucerization of the 4 mandible? 5 A. Yes. I'm actually comfortable resecting the whole 6 mandible, however, I feel that there are others in a 7 better position to do some of the adjunctive surgery 8 required, which is, radically, a radical neck 9 dissection, which I don't have adequate experience 10 and I don't have adequate experience in the 11 reconstruction available today. So, yes, I do 12 believe I would be fully capable of eradicating the 13 tumor in the mandible under every circumstance, but 14 there are others who will be better able to with the 15 adjunctive surgery. 16 Q. I understand. Somebody like Dr. Stepnick would be 17 in a position to utilize some free flaps in order to 18 hopefully give a better cosmetic result than you 19 might be able to do, given your area of expertise? 20 A. Correct. 21 Q. So if we're talking about doing a segmental 22 resection of the mandible, meaning that an entire 23 segment is removed from top to bottom leaving a gap, 24 is that what we understand when we say segmental? 25 A. That's my understanding. 37 1 Q. That would typically be something that you would 2 refer to someone else? 3 A. Yes. 4 Q. If we're talking about a marginal resection of the 5 mandible, and can we understand that to mean simply 6 a trimming of a portion of the mandible leaving the 7 mandible in continuity, at least on some -- leaving 8 the mandible in continuity? Let's leave it there. 9 A. Yes. 10 Q. Is that a fair definition? 11 A. That would be a good definition. 12 Q. You feel comfortable doing those? 13 A. Yes. 14 Q. And you have done those? 15 A. Yes. 16 Q. And when you do that, the cosmetic result and the 17 functional result is far better than when a 18 segmental mandibulectomy is performed? 19 A. Not necessarily. 20 Q. Typically? 21 A. Typically, yes, I think I would agree with that. 22 Q. And you would perform such a marginal mandibulectomy 23 in patients where you felt comfortable that you were 24 dealing with a soft tissue tumor that has not yet 25 invaded the mandible, I presume? 38 1 A. Under that circumstance, yes, I would feel 2 comfortable. I would also feel comfortable if the 3 tumor had invaded the mandible if I can be 4 reasonably certain that the invasion is limited. 5 Q. All right. So if it's an invasion of the mandible 6 that simply goes into the cortex and does not 7 involve large amounts of bone marrow infiltration, 8 you would feel comfortable doing that procedure? 9 MR. RYMOND: Objection. 10 A. Yes. 11 Q. All right. And you have done that procedure? 12 A. Yes, I have done that, but it's rare. 13 Q. All right. And if a patient like Cathleen had come 14 to you under circumstances in 199 -- let's put it 15 this way, if Cathleen had come to you in 1995 with a 16 tumor invading -- a tumor located around tooth 19 17 invading the cortex of her mandible but not 18 extending beyond that, you would have offered her 19 surgery within your office? 20 MR. HATCHADORIAN: Objection. 21 MR. NORMAN: Objection. 22 A. No. If I do offer her surgery, I would offer 23 surgery within the hospital, okay, if that's -- 24 Q. Well, I didn't mean in the office. 25 A. Okay. 39 1 Q. I didn't mean performing the actual procedure in the 2 office. 3 A. The reason I say that, in some of my medical/legal 4 work there are issues as to what the doctor does in 5 the office. That's not the case. In her case I 6 would decline, and the reason is she has had prior 7 radiation therapy and there are consequences to 8 doing even a limited jaw resection, a marginal 9 resection in that type of patient. 10 As you know, sometimes it's very difficult to 11 get the jaw to heal at all. So that patient I would 12 refer to somebody who would have more experience in 13 jaw reconstruction, because I think that patient is 14 likely to need it either at the time of surgery 15 where they would have a full segmental resection or 16 subsequent to the limited resection, and I think 17 there's a very good chance they may not heal and 18 will have to go on to a full resection. 19 Q. All right. If one assumes a marginal resection in a 20 patient with a previously irradiated jaw, is the 21 likelihood of healing occurring in an acceptable 22 fashion? I don't know if that was a garbled enough 23 question for you not to be able to answer it. 24 A. Yeah, I think I understand your question, and I 25 don't have an answer to that question. 40 1 Q. All right. 2 A. I don't know the answer to that question. 3 Q. Let me just see if I understand what you're able to 4 testify to then. You're not suggesting that if 5 Cathleen, given her history, as we all understand 6 it, having a prior cancer with irradiation of her 7 jaw, you're not suggesting that if she had been 8 diagnosed at the time of her dysplasia that she 9 would have undergone a segmental resection, are 10 you? 11 MS. ATWELL: If she had been diagnosed 12 what? 13 MR. HIRSHMAN: With dysplasia. 14 A. If she had been diagnosed with dysplasia and only 15 the area of dysplasia was treated in the floor of 16 the mouth to a clean margin, she would not have had 17 a resection of the mandible as a result of that 18 procedure. 19 Q. All right. If Cathleen had been diagnosed with a 20 Stage I cancer in that same area, would she have 21 required a segmental resection? 22 MS. ATWELL: Objection. 23 MR. NORMAN: Objection. 24 A. Yeah, it is my understanding if the cancer was 25 limited to the floor of the mouth and she did not 41 1 also have cancer in the bone, she would not require 2 any mandibular resection. 3 Q. All right. So it's only once the bone becomes 4 involved that mandibular resection becomes an 5 issue? 6 A. Well, it could become an issue when the tissue 7 adjacent to the bone becomes involved also, such as 8 the periosteum or even tissue immediately adjacent 9 to the periosteum. 10 Q. Suffice it to say, you as a, I don't mean to 11 diminish your practice, but you do not do the 12 procedure that Cathleen had performed upon her in 13 May of 1995? 14 A. That is correct. 15 Q. So whether or not that -- 16 MR. HATCHADORIAN: May of '96. 17 MR. HIRSHMAN: May of '96, I'm sorry. 18 A. Correct. 19 Q. So under what circumstances -- well, strike that. 20 So I take it you do not have an opinion as to 21 what sort of invasion of the mandible would have to 22 occur before she became a patient that required a 23 segmental resection? 24 MR. NORMAN: Let me just object for a 25 minute. Toby, are you talking about a 42 1 hypothetical situation now or are you building 2 on your prior hypo? 3 MR. HIRSHMAN: We'll start all over so 4 everybody understands where we are. 5 MR. NORMAN: I want to know if you're 6 talking about Cathleen specifically or if you 7 are building on a hypothetical with similar -- 8 MR. HIRSHMAN: I can talk about 9 Cathleen specifically, but we're going to take 10 it to a point in time other than the time of 11 the diagnosis. 12 MR. NORMAN: Sure. I don't care how 13 you do it, I just want to make sure that we 14 understand where you're going with it. 15 MR. HIRSHMAN: I understand. We're 16 going to talk about Cathleen in particular. 17 Q. At some point in time, had she been diagnosed early 18 enough, she wouldn't have required a segmental 19 resection, would she have? 20 A. It depends where the cancer originated from. If 21 cancer truly was in the floor of the mouth -- 22 Q. Okay. 23 A. -- and localized there, then I do not believe she 24 would require a segmental resection. 25 If cancer originated in the gingiva or in the 43 1 gingiva sulcus around the tooth, perhaps between 2 teeth numbers 19 and 20, she would have required 3 some degree of mandibular resection from the get 4 go. 5 Q. And that might have been a marginal resection? 6 A. Perhaps. 7 Q. So if Cathleen came to you with a cancer around 8 tooth 19 that was in the sulsa; is that what you 9 called it? 10 A. Sulcus. 11 Q. Sulcus of the tooth? 12 A. Yes. 13 Q. You would not have automatically sent her to 14 somebody like Dr. Stepnick? 15 A. In her particular case I would have because of the 16 prior history of the radiation to the mandible. 17 Q. All right. 18 MR. NORMAN: Are we proceeding here 19 with the understanding that the cancer of the 20 sulcus has been diagnosed by the time she 21 presents to Dr. Hauser; is that part of the 22 hypothetical? 23 MR. HIRSHMAN: I think that was the 24 hypothetical, yeah. 25 MR. NORMAN: Okay. 44 1 Q. Upon sending such a patient to a head and neck 2 surgeon, it would then become their judgment as to 3 what to do next? 4 A. Yes. 5 Q. All right. So given a patient like Cathleen with 6 prior radiation therapy, if there was any bone 7 involvement you would have referred her to a head 8 and neck surgeon? 9 A. I would have. 10 Q. You would have. So it's fair to say that you are 11 not going to be rendering opinions in this case as 12 to what the appropriate therapy would have been for 13 Cathleen once there was bony involvement of her 14 cancer? 15 MR. RYMOND: Objection. 16 MR. NORMAN: Objection. 17 A. It would depend on the question. If I am capable of 18 rendering an opinion and it is appropriate to do so, 19 I may. 20 Q. Well, let's deal with it then. 21 So you have opinions as to how much bony 22 involvement would have to occur before a marginal 23 resection was no longer a possibility in a patient 24 like Cathleen? 25 A. Yes. 45 1 Q. All right. Even though you wouldn't be the one 2 doing the procedure? 3 A. Yes. 4 Q. And if Cathleen presented to you with a Stage II 5 cancer, let's make it a two centimeter cancer, let's 6 talk about a two centimeter cancer invading the 7 periosteum, and you referred her on to a head and 8 neck surgeon, what would the options be -- 9 MR. RYMOND: Objection. 10 Q. -- for her? 11 A. I can't tell you the options that the head and neck 12 surgeon would provide. I can only tell you what I 13 would provide. 14 Q. And -- 15 A. And I am not going to treat this patient because of 16 the history of radiation. 17 Q. So you wouldn't provide options, you'd make a 18 referral? 19 A. Yes. 20 Q. All right. And if a patient -- and if Cathleen 21 presented to you with her history and a cancer 22 invading the cortex of the mandible, what would her 23 options have been? 24 A. Well, again, I would have referred this particular 25 patient to a head and neck surgeon. 46 1 Q. All right. 2 A. But it is my opinion that her option would have been 3 complete segmental resection of that portion of the 4 mandible and any portion containing cancer and any 5 portion beyond the cancer to get clean margins. 6 Q. So although you wouldn't do the procedure, it's your 7 opinion there was but one option? 8 A. Yes, in her particular case, based on my knowledge 9 of Cathleen and my understanding of the treatment of 10 cancer and osteoradionecrosis, that would be my 11 opinion. 12 Q. And if you had referred her to a head and neck 13 surgeon who offered her a marginal mandibulectomy, 14 what would your response to that have been? 15 A. I would defer to the opinion of the head and neck 16 surgeon, which is why I referred the patient. 17 Q. All right. You indicated that you are referred 18 cases by dentists, I believe, for diagnostic 19 purposes? 20 A. Yes. 21 Q. How much of your practice is involved with those 22 types of referrals? 23 A. I can't quantify, but I would estimate approximately 24 five percent. 25 Q. Five? 47 1 A. Yes. 2 Q. What types of lesions -- so these are patients that 3 are sent to you with a suspicion generated by the 4 dentist that there may be something there that's 5 either cancerous or precancerous? 6 A. Not necessarily. I am referred patients with 7 various lesions basically felt not to be cancer but 8 the patient is worried about the presence of the 9 lesion or the dentist is worried about it or there's 10 irritation, and it's pretty clear from the 11 experience of the dentist that this is not cancer 12 but the dentist and the patient both want it 13 removed. That's actually a more common scenario 14 than being referred a patient where it really 15 clinically looks suspicious for cancer. 16 Q. So a frequent part of your practice is having 17 patients come to you where people are concerned 18 enough to want a biopsy, even though they are of the 19 belief that it's probably not cancer? 20 A. Yes, that is very common today. 21 Q. Okay. And a lot of your patients who come to you 22 for biopsies come to you because they're concerned 23 about a cancer even though their dentist doesn't see 24 the particular lesion as being particularly 25 worrisome? 48 1 A. Yes. 2 Q. So in large part what happens in your practice is 3 that you perform biopsies to help give a patient 4 peace of mind? 5 A. Sometimes that is the case. 6 Q. All right. And sometimes when you do those biopsies 7 where the patient is concerned and the dentist isn't 8 concerned and you're doing the biopsy to give the 9 patient peace of mind, you end up finding a cancer? 10 A. No, I have never found that. 11 Q. That's never been the case? 12 A. No. The only cases where I have found cancer are 13 patients where the dentist was strongly suspicious 14 of it and I confirmed it by biopsy. And then we've 15 had many other patients in our clinic at Mt. Sinai 16 who come in unreferred by a dentist but clearly have 17 massive lesions in their mouth. These are the 18 smoker, indigent, alcoholic group who basically 19 don't receive regular medical care, and we take the 20 original biopsy and make the original diagnosis 21 without a referral. 22 Q. So I take it you've seen early cancers as well as 23 late cancers and made diagnoses of cancer under both 24 circumstances? 25 A. Yes. 49 1 Q. And with an early cancer, how did those typically 2 present? 3 A. The -- 4 Q. Or is there a typical presentation? 5 A. There are several that I have seen, the most common 6 being persistent ulcer. 7 MS. ATWELL: Persistent what? 8 THE WITNESS: Ulcer. 9 A. Of the soft tissues of the mouth, primarily the 10 floor of the mouth or the tongue or lip. Another 11 common clinical finding would be a raised, rolled 12 margin around the ulcer. Another common finding is 13 an irregular, angry looking fungating type lesion. 14 Another common clinical scenario is a lesion that 15 continues to expand and grow. 16 Q. How about -- 17 A. I have a few more. 18 Q. Go ahead. 19 A. Another common one of early cancer would be the 20 characteristic of what's called erythroplasia. It's 21 kind of an irregular red patch in the gums, usually 22 in the floor of the mouth is quite common or the 23 palate, of sometimes speckled red and white spots. 24 Q. Granular texture? 25 A. It may or may not have a granular texture. Another 50 1 area where I have occasionally made the diagnosis is 2 an area that's called, clinically called, 3 leukoplakia. It's a thick, white patch. 4 Q. How about a lump or a heaping up of tissue; do you 5 ever see that? 6 A. Yes. 7 Q. Why don't you describe that for me. 8 A. Well, again, the lumps that have turned out to be 9 cancer have had these other characteristics 10 associated with it. 11 Q. You've never seen a heaping up in the absence of 12 some of these other characteristics? 13 A. No, I have not seen that. 14 Q. Do you know Dr. Jack Gluckman? 15 A. No. 16 Q. Do you know of him? 17 A. No. 18 Q. Dr. Gluckman has indicated that a lump would be 19 something that he would biopsy in a patient. Do you 20 disagree? 21 A. It would depend very, very much on the 22 circumstance. If the lump had no other very logical 23 explanation and was sitting in the soft tissues, I 24 would -- well, if it had other characteristics of 25 cancer I would biopsy it immediately, and if it had 51 1 none I would watch it for a week or two, and if it 2 didn't disappear I would biopsy it. If you have a 3 lump consistent with an abscess next to a tooth, 4 then the appropriate treatment is to treat it as a 5 dental abscess. 6 Q. Which means what? 7 A. Dental abscesses are typically treated by various 8 modalities, depending on the source of the abscess, 9 which can include antibiotic treatment, it can 10 include root canal treatment, it can include 11 periodontal treatment, so it would depend on what 12 you think the source of the abscess is. 13 Q. How frequently do abscesses not respond to 14 antibiotic therapy? 15 A. Frequently. 16 Q. How frequently? 17 A. Well, most abscesses of dental origin ultimately 18 will need -- ultimately won't respond to 19 antibiotics. You need to treat the tooth either by 20 extraction or root canal. 21 Q. Tell me something about your medical/legal 22 experience. How much of this do you do? 23 A. In terms of depositions I would estimate that in a 24 given year I give between two and four depositions. 25 Q. How many cases do you review? 52 1 A. I would have to estimate at least twice as many. 2 Q. And what is the split between plaintiffs and 3 defendants? 4 A. I don't have exact figures, but of the cases that I 5 do half of them probably involve allegations of 6 medical negligence and half of them probably involve 7 personal injuries, such as an auto accident or a 8 fall, things where medical negligence is not an 9 issue. 10 Q. Okay. 11 A. Now, of the ones involving medical negligence, it is 12 my estimation that two-thirds to three-quarters of 13 those I am retained by a defendant and the rest I am 14 retained by the plaintiff. 15 Q. And as it relates to personal injury cases -- 16 A. Those end up being more 50/50. 17 Q. Have you worked for Gallagher, Sharp before? 18 A. I don't know. I may have in a personal injury area 19 because the firm sounds familiar, so they may 20 represent auto insurance companies. I'm not 21 positive about that. 22 Q. Had you worked for John Travis before? 23 A. No. 24 Q. How about Weston, Hurd? 25 A. I believe I was retained by them about ten years 53 1 ago. 2 Q. Did I ask you if you know Dr. Callahan? 3 A. No, and the answer is I do. 4 Q. You do, okay. How do you know him? 5 A. Professional association. 6 Q. Tell me what the association is. 7 A. I know him as a professional colleague. I actually 8 know his partner very well because his partner, Dr. 9 Bell, was one of the attending oral surgeons at Mt. 10 Sinai Hospital when we had our residency program 11 based there. 12 Q. So you consider Dr. Callahan to be -- do you refer 13 cases back and forth? 14 A. I think on occasion he has referred cases to me. I 15 don't recall if I have referred cases to him because 16 in general I have a broader experience in oral and 17 maxillofacial surgery than I believe he has, so 18 typically the referrals go from the person who might 19 have more limited experience to the person who has 20 more experience. 21 Q. So you receive referrals from him rather than vice 22 versa? 23 A. Yes, I think that would be more accurate. 24 Q. Aside from receiving referrals from him, what other 25 professional contacts do you have with him? 54 1 A. I have heard him lecture. I've seen him in social 2 situations. 3 Q. What social situations? 4 A. Some parties. I don't recall the nature. 5 Q. All right. It's well understood, is it not, that 6 infections and abscesses can occur in association 7 with a cancer? 8 A. Yes. 9 Q. In the mouth? 10 A. Yes, it can. 11 Q. The existence of an abscess doesn't rule out the 12 existence of a cancer? 13 A. Correct. 14 Q. And in fact, it's understood that cancers can 15 present as abscesses? 16 A. Yes. 17 Q. And simply because you have reason to suspect an 18 abscess doesn't mean that you can rule out the 19 existence of the cancer? 20 A. Correct. 21 Q. And if somebody were to tell you that there is no 22 association between the two, they would be making an 23 inaccurate statement? 24 A. To my knowledge and opinion, yes. 25 Q. All right. You've reviewed Dr. Kirby's records in 55 1 sufficient detail to feel comfortable talking to me, 2 I presume here today, about those records and his 3 care and treatment? 4 A. Yes. 5 MR. NORMAN: Toby, are we at a good 6 break point? 7 MR. HIRSHMAN: Yeah, now is a good 8 time. 9 - - - - 10 (Thereupon, a recess was had.) 11 - - - - 12 MR. HIRSHMAN: Back on the record. 13 Q. Take a look at the records of Dr. Kirby from 14 December 8th, if you would. 15 A. Would you have a copy of them available? If not, 16 everything got disorganized. 17 MR. NORMAN: They were being passed 18 around. 19 Q. Yeah, let's give you yours back so that you can 20 utilize them. I've asked you about December 8th in 21 particular, and I'll show you what it looks like. 22 That might help you. It's one of these sheets on a 23 lined piece of paper. 24 A. Okay. I now have a copy of that entry, I think. 25 Q. Yeah, you do. 56 1 A. Okay. 2 Q. December 8th. There's a date of December 8th, 1995 3 and the next column over it says 0140. Do you know 4 what that stands for? 5 A. I speculate that that is a dental code for the type 6 of visit this was. 7 Q. There's a swelling noted on the lingual of tooth 19; 8 is that correct? 9 A. Yes. 10 Q. Can you tell me what the process was that was going 11 on at that time? 12 A. I don't know if I can tell you what the process 13 was. I can tell you what I suspect, based on the 14 history that subsequently evolved and, you know, 15 having a retrospective analysis. 16 Q. Let's start there. 17 A. Okay. 18 Q. What do you suspect was going on there, knowing what 19 you know now? 20 A. I suspect she had infection of tooth 19 or 20 and 21 cancer. 22 Q. Do you have an opinion as to whether those two -- so 23 we're talking about two processes, one cancer, one 24 infection? 25 A. Yes. 57 1 Q. And do you have an opinion as to whether or not they 2 were interrelated? 3 A. Yes, it is my opinion that they were most likely 4 related. 5 Q. All right. In other words, there was a cancer that 6 gave rise to an infection? 7 A. Yes. 8 Q. And that cancer was, well, located in the same 9 vicinity then as the swelling? 10 A. Yes. 11 Q. All right. And had a biopsy been done at that time 12 it would have, in all likelihood, found a cancer? 13 MR. HATCHADORIAN: What time are you 14 talking about? 15 MR. HIRSHMAN: December 8th. 16 MR. HATCHADORIAN: December of '95? 17 MR. HIRSHMAN: December 8th, 1995. 18 A. Yeah, it's difficult to say with certainty because 19 the characteristics of the swelling are more 20 consistent with abscess, but it's pretty clear 21 retrospectively that she did, in fact, have cancer 22 in the bone, so I would opine that you would find 23 cancer had you biopsied the bone. Now, you may or 24 may not find cancer in the swelling. You would find 25 infection, you may or may not also find cancer. 58 1 Q. All right. So if biopsies had been done at that 2 time of the bone, to a reasonable probability cancer 3 would have been found? 4 A. That is my opinion. 5 Q. All right. And if a biopsy had been done of the 6 swollen tissue, you don't have an opinion one way or 7 the other as to whether or not cancer would have 8 been diagnosed? 9 A. Yes, it's too difficult to say and the reason I say 10 this is the cancer, as we know, doesn't disappear 11 without therapy. I guess there are very rare 12 instances, but in general it doesn't disappear 13 without therapy. 14 This bump seems to have disappeared after 15 extraction of the tooth, and it wasn't present on 16 Dr. Callahan's subsequent exams, according to the 17 notes, and it's not present in the report of Dr. 18 Silverman. So I have to opine that if the swelling 19 disappeared it was related to a process that would 20 resolve once you took out a tooth, therefore it is 21 my opinion that the swelling that Dr. Kirby saw was 22 most likely infection, but that does not rule out 23 the fact that there was -- there seemed to be cancer 24 in the bone. 25 Q. All right. You're not suggesting that this cancer 59 1 arose from the bone, are you? 2 A. It would be rare for cancer to arise from the bone. 3 It has been reported. It's more likely squamous 4 cell carcinoma, that it arrises from some squamous 5 cells, and in this particular case it probably arose 6 in and around tooth number 19. 7 Q. All right. 8 A. In and around the tissue, the soft tissue of tooth 9 number 19. 10 Q. In and around -- in the oral mucosa in the vicinity 11 of tooth 19, correct? 12 A. Yes, probably immediately adjacent to it. 13 Q. All right. In the oral mucosa adjacent to tooth 19 14 is where this cancer, in your opinion, arose from? 15 A. Yeah, I believe that's the most likely explanation. 16 Q. And what you just indicated to us was that you 17 believe the swelling was probably from the infection 18 associated with the cancer because of the fact that 19 there is no documentation of swelling during Dr. 20 Callahan's care and treatment, nor is there any 21 during Dr. Silverman's observations of April 16th? 22 A. Yes, the swelling, according to the records as I 23 read them, appears to have resolved. 24 Q. All right. 25 A. It is my clinical experience that cancer does not 60 1 resolve with extraction of a tooth, but it does 2 resolve, infection does resolve, with extraction of 3 an infected tooth. 4 Q. Now, let's assume for a moment that there was 5 swelling during all these periods of time during Dr. 6 Callahan's care and treatment, and that there is 7 also swelling at the time of Dr. Silverman's 8 observations, and that there was still swelling at 9 the time of Dr. Stepnick's observations. 10 A. Yes. 11 Q. How would that change your understanding as to the 12 cause or etiology, well, as to the actual nature of 13 the swelling? 14 A. It would be, under those circumstances, it would be 15 my opinion that that swelling was due to cancer. 16 Q. All right. And under those circumstances if a 17 biopsy had been done of the swelling even back in 18 December, your opinion would be that even if soft 19 tissue were biopsied it would have probably shown 20 cancer? 21 A. Yes. 22 Q. Now, having reviewed the materials that you've 23 reviewed, including Dr. Kirby's deposition, Cathleen 24 Lane's deposition and Dr. Kirby's records, among 25 many other things, what is it that you understand 61 1 Dr. Kirby to have been told by Cathleen, if 2 anything, about the biopsies that were performed 3 upon her on October 10th, 1995? 4 A. It's my understanding that Dr. Kirby was told that 5 she had biopsies done in October of 1995 and that 6 they were negative. 7 Q. It was important for him to find out from her, I 8 presume, whether they were negative? 9 A. No, that would typically not be the position of a 10 dentist. 11 Q. It doesn't matter from his perspective, he's got a 12 lump there that he's pursuing an investigation of 13 which we can agree was in the same location as the 14 biopsies? 15 A. No, we don't agree on that at all. It's pretty 16 clear to me, from looking at the diagram that you 17 showed me, that the biopsy was in the floor of the 18 mouth and it's pretty clear to me that the lesion, 19 as described in the reports, is in the gingiva. 20 Q. All right. 21 A. Adjacent to teeth 19 and 20. 22 Q. We can agree that it's very close, there's a close 23 association between those two areas? 24 A. It depends on what scale you're talking about. 25 Q. Okay. 62 1 A. The lesions wouldn't be more than two centimeters 2 apart, perhaps as close as one centimeter. 3 Q. And certainly to Cathleen there seemed to be an 4 association in terms of geography between the two -- 5 MS. ATWELL: Objection. 6 Q. -- would you not agree, based on the notes of Dr. 7 Kirby? 8 MS. ATWELL: Objection. 9 MR. NORMAN: Objection. 10 MR. RYMOND: Objection. 11 A. My interpretation is that she asked Dr. Kirby if the 12 biopsy which he had -- if this lump is related to 13 the biopsy. 14 Q. All right. You wouldn't expect that kind of a 15 comment from a patient, that kind of a question from 16 a patient, if a biopsy were done on one side of the 17 mouth and a lump were subsequently noted on the 18 other side of the mouth, would you? 19 MR. NORMAN: Objection. 20 A. Some of the patients I see in my practice are very, 21 very concerned about things in their mouth and are 22 asking me could this be cancer, could that be 23 cancer, you know, so it depends on the patient. 24 Q. Well, that's not the question I asked you though. I 25 asked you a little bit different question. The 63 1 notes of Dr. Kirby say on December 8th, 1995, quote, 2 she recently had two biopsies performed on her 3 tongue and wonders if this is related to the 4 biopsies, this being the swelling. Is that how you 5 read that? 6 A. Yes. Yeah, if I were a dentist and somebody told me 7 they had lesions on their tongue biopsied and now 8 they have a lesion next to the teeth in the dental 9 alveolus, I would not in any way think that they are 10 connected. 11 Q. All right. So Cathleen's simply asking whether 12 there's two different processes that are going on in 13 different parts of her mouth? 14 A. Yes. 15 Q. In your estimation? 16 A. Yes. 17 Q. It's your understanding that Dr. Kirby was told that 18 the results were negative by Cathleen? 19 A. That is my understanding. 20 Q. All right. And it's your testimony that even if he 21 wasn't told they were negative but was simply told 22 that there had been biopsies performed in her mouth, 23 what amounts to, what, two months earlier? 24 A. Correct. 25 Q. His obligations to this patient didn't even rise to 64 1 the level of getting her understanding as to what 2 the results of those biopsies were? 3 A. I'm not sure it follows. I believe he did 4 understand her thoughts about what the biopsy was. 5 Q. So he had at least that much of an obligation as a 6 dentist to, upon being told that she had biopsies 7 performed, to at least get her interpretation as to 8 what the results were? 9 A. I think it would be helpful in this particular 10 case. 11 Q. For him to know that? 12 A. For him to know that, and it's my understanding he 13 was told that. 14 Q. Okay. 15 A. And it is my practice that if a patient tells me 16 they had a certain test and it's negative, if I have 17 no reason to disbelieve the patient I accept that 18 information. 19 Q. All right. But it's important for him to at least 20 find out from her that in reality the test results, 21 the biopsy results, were negative? 22 MR. HATCHADORIAN: It's been asked and 23 answered. Objection. 24 A. Yeah, it may be helpful in this particular case, but 25 again we're talking about lesions in different 65 1 areas, and I don't know of a dentist who would 2 question a seemingly reliable patient giving 3 information that a biopsy is negative to think that 4 it was not. 5 Q. All right. So once he found out from Cathleen that 6 the results were negative of that biopsy, his 7 obligation as it relates to that biopsy was over? 8 MR. HULME: Objection to the form of 9 the question. 10 MR. RYMOND: Yeah, objection. 11 Q. He had no further obligation of inquiry? 12 A. That would depend on what he found. For example, if 13 in an area of the biopsy a few months ago the 14 patient now presented with what looked like a very 15 worrisome lesion in the spot of the biopsy, I would 16 think it is the obligation of the dentist to point 17 that out to the patient and either do a biopsy, send 18 the patient to a specialist who would do a biopsy 19 such as me, or if the patient is under treatment 20 send the patient back to the treating doctor. 21 If the dentist finds a lesion that is strongly 22 suspicious of a dental abscess, I would think it's 23 appropriate for the dentist to treat the dental 24 abscess. 25 MR. HIRSHMAN: Why don't you read that 66 1 back for me. 2 - - - - 3 (Thereupon, the requested portion of 4 the record was read by the Notary.) 5 - - - - 6 Q. If the patient had told him in the presence of a 7 lump that might appear to the dentist to be a dental 8 abscess that the biopsy results came back showing a 9 severe dysplasia, what would that dentist's -- what 10 would Dr. Kirby's obligations under those 11 circumstances have been? 12 MR. NORMAN: Objection. 13 A. Given that information, you may still have to treat 14 the dental abscess if present, and I think it would 15 be reasonable to inquire as to the patient what the 16 doctor recommended. Did the doctor recommend 17 further treatment of the dysplasia, did the doctor 18 recommend repeat observation or repeat biopsy. 19 Q. You would want to at least inquire because severe 20 dysplasia portends to be something serious? 21 A. Yes, it can be. 22 Q. All right. And it is, in fact, a potential cancer? 23 A. Dysplasia can turn to cancer. 24 Q. All right. So if Dr. Kirby had been told by 25 Cathleen on December 8th that the results of her 67 1 biopsy showed severe dysplasia and it was her 2 understanding that she wasn't supposed to do 3 anything about it, what would that dentist's 4 obligation be at that point? 5 A. Well, if there is a dental abscess likely present, 6 the obligation of the dentist is to treat the 7 abscess. Now, if the lesions are continuous with 8 one another, actually literally touching, then I 9 think it would be logical for the dentist to again 10 do another biopsy, send the patient to an oral 11 surgeon or a similar specialist for a biopsy or send 12 the patient back to the doctor who had been 13 evaluating her before. 14 Q. All right. Dentists do have obligations to screen 15 for cancer? 16 A. They do. 17 Q. And they do have -- I mean, that's part of at least 18 what most dentists -- the standard of care -- let's 19 start all over again. 20 The standard of care for a dentist is to do an 21 oral examination on his patients in an attempt to 22 diagnose cancer at the earliest possible time? 23 MR. HULME: Objection to the form of 24 the question. 25 MR. NORMAN: Objection. 68 1 A. It is my opinion that when a dentist evaluates the 2 patient, they should look at not only the teeth but 3 should look at the oral mucosa of the gingiva, the 4 tongue, the floor of the mouth, the palate, to rule 5 out any abnormalities. 6 Q. All right. That's part of a dentist's 7 responsibility? 8 A. Yes. 9 Q. And a dentist is required to understand certain 10 basics about the evolution and natural history of an 11 oral cancer? 12 A. Yes, dentists are taught in their oral pathology 13 class something about oral cancer. However, it's my 14 experience that most dentists rarely, if ever, are 15 involved in treatment of oral cancer and rarely, if 16 ever, see it. 17 Q. But they are taught that so that they, being on the 18 front lines, can intervene and refer a patient at 19 the earliest possible time? 20 A. Yes, if they see some of the hallmark signs that I 21 described earlier in the deposition, most dentists 22 make a referral as soon as possible. 23 Q. And they know enough and are taught enough about 24 oral cancer to know that dysplasia is a precursor to 25 cancer? 69 1 A. I believe they are taught that. 2 Q. All right. Now, Cathleen wasn't just your typical 3 dental patient, was she? 4 A. I don't quite know what a typical dental patient 5 is. You would have to define that. 6 Q. Let's define it then. She had a history of oral 7 cancer back in the early 1980s? 8 A. Correct. 9 Q. She had a history of therapy for that oral cancer? 10 A. Correct. 11 Q. She had a history of a hemiglossectomy? 12 A. Correct. 13 Q. She had a history of chemotherapy? 14 A. Correct. 15 Q. She had a history of a neck dissection? 16 A. Correct. 17 Q. She had a history of radiation therapy? 18 A. Correct. 19 Q. As a result of that history, Cathleen was a 20 high-risk patient, was she not, for another oral 21 cancer? 22 A. I'd have to disagree with your use of the term high 23 risk. High risk might be defined as someone who's 24 more likely than not, so I don't think that's an 25 appropriate term. I believe she would be considered 70 1 at somewhat higher risk than the average 2 population. 3 Q. She was somewhat at sufficiently higher risk to 4 warrant a more aggressive and perceptive examination 5 than your typical patient? 6 A. I would agree with that, and the records indicate 7 that both the dental practice and Cathleen were 8 aware of that and she had much more repeated 9 follow-up than what you might call your typical 10 patient who may come once or twice a year. I 11 believe Cathleen was scheduled at least four times a 12 year. 13 Q. And that's because she was a higher-risk patient? 14 A. I believe that all parties involved felt that she 15 was at somewhat higher risk than the general 16 population for a recurrence of cancer. 17 Q. Now, on December 8th, 1995 we can agree that she had 18 a history of cancer and therapy for it? 19 A. Yes. 20 Q. We can agree that, as we just have, that she was at 21 higher risk than the general population for another 22 cancer? 23 A. Yes. 24 Q. We can agree that she had an obvious fear of cancer? 25 A. Yes. 71 1 Q. Which she expressed to Dr. Kirby? 2 A. Yes. 3 Q. We can agree that certainly back in February of 1995 4 she had a raised, white lesion on her mouth that was 5 observed and documented by Dr. Whelan in Dr. Kirby's 6 records? 7 A. Yes. 8 Q. We had a situation where Dr. Kirby understood that 9 she had had a prior biopsy in October? 10 A. Yes. 11 Q. And if not in the same area, at least an area in the 12 close vicinity? 13 A. Yes. It's my understanding that the area would have 14 been between one and two centimeters away. 15 Q. All right. And we had an area of swelling? 16 A. Yes. 17 Q. We could agree that under those circumstances it 18 would have been prudent for Dr. Kirby to learn what 19 the results of the biopsy had been? 20 A. No, I disagree with that. 21 Q. It wouldn't have been prudent? 22 A. No, it would not be the standard practice of a 23 dentist. 24 Q. It wouldn't? 25 A. I'm not saying that it would not have been of 72 1 benefit in hindsight in this case, but the standard 2 of care of a dentist is if they see a lesion 3 suspicious of cancer having some of the hallmarks we 4 talked about it is prudent for them to have that 5 evaluated. 6 If they see a lesion consistent with a dental 7 abscess, it is prudent for them to treat the dental 8 abscess. Since swelling next to tooth 19 is 99.9 9 percent likely to be a dental abscess, it is 10 reasonable to treat it as such. 11 Q. So if Cathleen told Dr. Kirby that she had this 12 biopsy two months earlier and didn't tell him 13 whether it was negative or positive, you have no 14 criticism of Dr. Kirby for not simply inquiring as 15 to what the results might have been? 16 MR. HATCHADORIAN: Objection to the 17 form. 18 A. I would think it's logical for a dentist to know 19 that if a patient had biopsies in the mouth that 20 were positive, it's logical for them to know the 21 result, so either -- if the patient is not sure what 22 the result was, a dentist may inquire or may just be 23 sure that the patient is under close observation 24 from the treating doctor. So it really depends on 25 the circumstances. 73 1 Q. But he has no obligation, in your estimation, to at 2 least ask were the results positive or negative, 3 Cathleen? 4 A. It's difficult to answer the question. I think the 5 dentist does try to know, and I believe the dentist 6 was told that the results were negative. 7 Q. All right. But if he wasn't told he had no duty to 8 inquire? 9 MR. NORMAN: Objection. 10 MR. HATCHADORIAN: Objection. 11 MR. NORMAN: Asked and answered. 12 A. It would depend on the circumstances. If the 13 dentist is fully aware that the patient is under the 14 care of a head and neck surgeon and doesn't see 15 anything unusual in the area of a biopsy, it's 16 reasonable for the dentist to allow that patient to 17 continue in the care of the head and neck surgeon. 18 It would be unreasonable for the dentist to 19 supersede the authority of the head and neck surgeon 20 in an area that that surgeon biopsied, especially if 21 it's healing. 22 Q. And it would be unreasonable for him to say, 23 Cathleen, was it positive or negative? 24 A. No, that would not be unreasonable. 25 Q. All right. You've looked at a number of films, I 74 1 believe -- 2 A. Yes. 3 Q. -- going back, if I'm not mistaken, all the way to 4 1982? 5 A. That is correct. 6 Q. Do you have copies of all those films in your 7 possession? 8 A. I think I do. 9 Q. Let's take a look at them. Let me ask you this 10 first. Have you ever seen a December 8th, 1995 11 film? As I read your report I'm not sure whether I 12 interpret it as suggesting that on December 8th 13 there was a film you've had an opportunity to look 14 at or not. 15 A. I am not sure if I saw a film of that date. I am 16 certain that I saw all the films I have in my 17 possession, and I am certain that I saw any film 18 that my report says that I saw. 19 Q. Now, see if you can -- 20 A. If that film is not in my possession and I did not 21 indicate -- it's not in my report, I have to make an 22 assumption I didn't see it. 23 Q. Well, why don't you take a look and see if it's in 24 your possession. 25 A. I do not see a film with that date on it. I see one 75 1 film with no date on it, but I have to make an 2 assumption it could not have been a film of that 3 date, based on the root canal treatment on this 4 film. 5 Q. Based on the root canal treatment that's there, you 6 have to conclude that that was a film taken on the 7 18th of December or thereafter? 8 A. Yes. 9 Q. Let's start with a -- do you have a film marked as 10 December 18th, 1995? 11 A. I don't see one in my possession, but I will be 12 happy to look at one if one is available. 13 Q. I can't imagine you don't have them. My guess is 14 this is probably it, but let me take a look here. 15 A. My interpretation of my report and this film would 16 be that it is very likely this film is of that 17 date. 18 Q. All right. I'm going to show you the film that I 19 think everybody would agree is 12-18-95 and we'll 20 see if it's the same one or not. 21 I'm going to show you what's been marked as 22 Callahan Exhibit 2, I believe. I'm looking at 23 Callahan Deposition Exhibit 2, and I think the one 24 film on the bottom row is the same film, am I 25 correct, as the one that you have that's undated? 76 1 A. Yeah, I believe that they are the same. 2 Q. All right. Why don't you look at the one that's 3 marked as Exhibit 2 since it's the original, I 4 believe, is it not? 5 A. I think it is. 6 Q. What do you see? 7 A. I can tell you the highlights of this particular 8 film, but we won't focus on the dental restorations, 9 I think those are moot, but let's focus on the fact 10 that we see teeth 18, 19 and 20. 11 Tooth number 20 has a root canal that appears 12 to be complete and down to the apex or bottom of the 13 tooth. Tooth number 19 has two root canals on the 14 front root and one root canal in the back root. 15 Q. That would suggest that it was taken after a second 16 root canal on tooth 19? 17 A. That you cannot tell. You can tell that the root 18 canal had been completed on tooth 20. Tooth number 19 19, we know from previous x-rays dating back years 20 and years before, had a root canal in it, and it is 21 pretty clear from the records that the endodontist, 22 I believe Dr. Synenberg, attempted to remove the 23 root canal that was already present in tooth number 24 19 and tried to refill the tooth and was not able to 25 do that. So it is my opinion that the root canal 77 1 film we see here in tooth number 19 is Cathleen's 2 previous root canal and not one done by Dr. 3 Synenberg because he could not do one. 4 Q. That's the mesial root we're talking about, right? 5 A. Both the mesial and distal root. 6 Q. The mesial is where you see two? 7 A. Yeah, the mesial is the one you see two. It also 8 appears that there is a slight, what we call, 9 periapical radiolucency, a little dark shadow around 10 the apex of the -- 11 Q. Of the mesial root? 12 A. Of the mesial root. 13 Q. Of 19? 14 A. Yes. There appears to be some sclerotic bone, bone 15 that has a little more white density around the 16 mesial root, but I looked back at her previous films 17 dating back as far as 1982 and I saw more hyper 18 dense white sclerotic looking bone around that 19 root. 20 Q. Show me exactly where you're talking about, if you 21 would. 22 A. If you'll notice, the area around the root is a 23 whiter appearance than the bone around this tooth 24 and the bone around the distal root. 25 Q. When you say this tooth you're talking about 20? 78 1 A. It's actually 19, the mesial root. 2 Q. Well, you said the mesial root of tooth 19 looks 3 more sclerotic than the root of this tooth? 4 A. Okay. The root of tooth number 20 and the distal 5 root of tooth number 19. 6 Q. Okay. 7 A. And the only other -- see, perhaps evidence of early 8 periodontal disease between teeth numbers 19 and 9 20. The bone between 18 and 19 actually appears, 10 again, perhaps some incipient or early periodontal 11 disease, a little defect at what we call the mesial 12 aspect of tooth number 18, and on the distal aspect 13 of tooth number 19 there is a defect that is also 14 consistent with periodontal bone loss. 15 Q. Now, if I understand your report correctly, you see 16 nothing in that Callahan Exhibit 2 that is in any 17 fashion different than what you saw going all the 18 way back to 1982? 19 A. Correct. 20 Q. In between the mesial and distal roots of tooth 19 21 is a shadow of sorts; is there not? 22 A. Yes. 23 Q. What do you attribute that to? 24 A. Well, that can be several things, it can be normal 25 bone trabeculation, the normal pattern of bone. If 79 1 we assume the bone around the mesial root is too 2 white, sclerotic from long-standing root canal 3 treatment, then one can consider the bone between 4 the 19 root normal. 5 If one were to consider the bone around the 6 mesial root of 19 normal, which would mean to say 7 that it would have to match all our other teeth, 8 which it doesn't, then I would consider the bone to 9 be less dense, consistent with infection, chronic 10 furcation involvement. 11 Q. Let's look at the area between tooth 18 and tooth 12 19. 13 A. Yes. 14 Q. What do you see there, again? 15 A. Okay. I see what may be an incipient or early 16 periodontal defect just at the very mesial aspect of 17 tooth number 18. 18 Q. Do you agree with me that there is an absence of a 19 crestal lamina dura on that film? 20 A. No, I see a crest and a lamina dura. 21 Q. Where do you see that? 22 A. I see it coming up along the distal root of number 23 19 and I see it beveled at the top and then coming 24 down right to the little mesial defect of tooth 25 number 18. 80 1 Q. So in your opinion you see no evidence, even with 2 the benefit of hindsight, of invasion of the bone 3 with cancer on that film of December 18th, 1995? 4 A. Correct. 5 Q. All right. Are you able to tell me whether or not 6 there was, and I take it before I do that you've 7 looked at these films and you've compared them to 8 films going all the way back to 1982? 9 A. Yes. 10 Q. And you see nothing that distinguishes these films 11 of December 18th, 1995 from any of those others, 12 with the exception of the root canal? 13 A. Yes, there is no substantial difference. 14 Q. All right. And in particular as it relates to the 15 area between tooth 18 and tooth 19, you see no 16 difference between the film of December 18th, 1995 17 and the previous films? 18 A. I see no substantial difference. 19 Q. All right. So I take it can you tell me when 20 Cathleen's cancer invaded the bone of her mandible? 21 A. No. 22 Q. Even with the benefit of hindsight? 23 A. I can tell you what I believe happened, but I cannot 24 pinpoint on this day there was cancer in the bone. 25 Q. All right. Suffice it to say, based on the films 81 1 that you've reviewed, they give you no -- they shed 2 no light on the issue of whether or not there was 3 bony involvement on December 18th of 1995? 4 A. Correct. 5 Q. Have you seen a film from March, 1996, I think it's 6 a Panorex? 7 A. Yeah, I don't think I have seen that film, unless I 8 indicate that I did in my report, but I don't think 9 I did. 10 Q. Let's take a look and see if you have it, first of 11 all. Before we do that you've looked at the May 12 26th, 1995 films? 13 A. Yes. 14 Q. There's no suggestion of cancer in the mandible 15 there either, I take it? 16 A. No. 17 Q. I guess you haven't been given the one of March, I 18 think it's March 26th, 1996. I'll provide you with 19 a copy of that and see what your interpretation of 20 that is. Do you read films in the ordinary course 21 of your practice? 22 A. I do. 23 Q. I'm handing you what's been labeled as Callahan 24 Exhibit 3, and it is dated as Cathleen Lane's 25 Panorex film from March 26th of 1996. Why don't you 82 1 take a moment to look at that. This is the first 2 time you've seen this, first of all, right? 3 A. Yes. Okay. What I see on this film is the absence 4 of tooth number 19. I see what appears to be a 5 mesial root socket here, this dark cylindrical area, 6 this may be a distal root socket. I'm not positive 7 of that. There appears to be the alveolus, the bone 8 that supported the tooth, appears to be by and large 9 missing. 10 I cannot say that I see invasion or x-ray signs 11 consistent with invasion of bone on this film. 12 Retrospectively we know that there was invasion, but 13 just being handed this film would not make me 14 suspicious that there is a tumor in this patient's 15 mandible. 16 Q. With the benefit of hindsight, how would you 17 describe that depiction? 18 A. I would describe it the same way, but I would know 19 that the reason why there's so much alveolus missing 20 is because of tumor. There are times when I remove 21 the tooth that the alveolus bone just comes out with 22 the tooth, so I can see a defect like this in the 23 absence of tumor. 24 Q. Given what you've seen of the depositions of Dr. 25 Callahan, Dr. Callahan's records and the records and 83 1 deposition of Dr. Kirby, you can conclude with the 2 benefit of hindsight that the defect in the mandible 3 is due to cancer rather than being due to the 4 process of extraction? 5 A. Yes. 6 Q. How would you describe the severity of the bony loss 7 caused by the cancer in that picture? 8 A. Well, of the bone that is not here, it appears to be 9 involving at least 50 percent of the alveolus around 10 tooth number 19. 11 Q. 50 percent meaning what? 12 A. Half of the bone is missing. 13 Q. Half of the depth of the bone? 14 A. Correct. 15 Q. In other words, if you take the topmost part of the 16 mandible and call that Point A and the bottommost 17 part of the mandible and call it Point B, in the 18 vicinity of tooth 19 you're suggesting that this 19 cancer has gone half the distance from Point A to 20 Point B? 21 A. No. Let me clarify the terminology. The alveolar 22 bone is generally considered to be the bone from the 23 gingival margin down to the -- below the root area. 24 So if the gingival margin, which is best seen on the 25 other side, really runs right under the necks of the 84 1 teeth, we'll follow it along and you can see it very 2 well here. That would be the gingival margin bone. 3 If we draw a line across where the gingival 4 margin would have been and we draw a line from the 5 bottom of the adjacent roots, to my eye half of that 6 bone is missing. So half of the alveolar bone is 7 missing. 8 Q. So we could conclude that this cancer has invaded 9 the medullary bone of the mandible? 10 A. Yeah. In retrospect we know the reason the bone is 11 missing is largely due to cancer, yes, but just 12 looking on this film I cannot conclude that there is 13 mandibulary involvement of the cancer. 14 Q. I'm not trying to trick you into making a 15 prospective judgment. We're talking in retrospect. 16 A. Yeah, in retrospect I believe the missing bone is 17 due to cancer as opposed to having been removed in 18 the process of taking out the tooth or osteomyelitis 19 or osteoradionecrosis. 20 Q. And the cancer has gone through the cortex and is in 21 the medullary part of the bone? 22 A. Yes. 23 Q. The medullary part of the bone meaning the marrow of 24 the bone? 25 A. Correct. 85 1 Q. And you see nothing like this, even with the benefit 2 of hindsight, that even suggests the existence of 3 cancer in December of 1995, December 18th, on that 4 film? 5 A. Correct. 6 Q. So what is your opinion, or do you have an opinion, 7 as to when the cancer invaded the bone? 8 A. It is my opinion that there was cancer in the bone 9 as of 12-8-95. 10 Q. 12-8-95? 11 A. Yes. 12 Q. Based on what? 13 A. There may have been cancer before, but at the time 14 Dr. Kirby first evaluated Ms. Lane, it is my opinion 15 that there was cancer already present in the bone. 16 Q. And that's based on what? 17 A. Retrospective analysis of the case. 18 Q. Well, what is it specifically that allows you to 19 conclude that on 12-8-95 the cancer was already in 20 the bone? 21 A. Just the progression of that she did not fully 22 respond to root canal treatment. She required 23 extraction. The extraction may well have resolved 24 the swelling, but it clearly did not resolve the 25 disease process which we know to be cancer. Also 86 1 based on my knowledge of cancer in general, and that 2 it takes a certain time for cancer to spread, that 3 cancer very likely had to be present much more 4 likely than not as of 12-8-95 in the bone. 5 Q. Can you tell me how much of the bone was involved 6 with cancer at that time? 7 A. No, I can't. 8 Q. Can you tell me whether it went through the 9 periosteum and through the cortex into the medullary 10 bone as of 12-8-95? 11 A. I believe it had. 12 Q. And the basis for that is what? 13 A. The infection. 14 Q. What is it about the infection that allows you to 15 conclude that? 16 A. The fact that it exists, the fact that she had had 17 an asymptomatic tooth number 19 with a root canal 18 for many, many years, and on or about the time when 19 she was developing this cancer that tooth becomes 20 infected, it is my opinion that the infection 21 contributed or caused the -- excuse me, the cancer 22 contributed or caused the infection around the 23 tooth. 24 Q. Well, can't you have cancer causing an infection in 25 the absence of bone involvement? 87 1 A. I don't think you can. I don't see how you can have 2 the root canal system or the apex of a tooth get 3 infected unless there's cancer in the bone because 4 the root is sitting in the bone. 5 Q. What makes you conclude that there's been apex 6 involvement? 7 A. The fact that there was infection that appeared to 8 be what we call periapical in nature. 9 Q. Where is that? 10 A. Around tooth number 19. 11 Q. Seen on what film? 12 A. The -- 13 Q. The 18th? 14 A. Yeah, I think that film showed some evidence of 15 periapical infection on the mesial root. 16 Q. Do you have an opinion as to whether or not there 17 was progression of the cancer from December 18th, 18 1995 to March 26th, 1996? 19 A. Yes. 20 Q. What's your opinion? 21 A. That it had progressed. 22 Q. And it progressed how, what fashion? 23 A. Based on retrospective analysis and based on my 24 understanding of the spread of cancer, it had to 25 spread through the bone. 88 1 Q. All right. So it went from perhaps being 2 superficial bony involvement on December 18th to 3 being extensive bony involvement by March 26th, 4 1996; is that a fair statement? 5 A. No. I believe she already had a fairly deep bone 6 marrow involvement as of 12-8-95 and then it 7 progressed through the bone marrow over the next few 8 months. 9 Q. But you can't see it on film? 10 A. Cannot. 11 Q. What is the purpose of writing notes, why do you 12 write notes in your practice? 13 A. I do that to document my findings. 14 Q. How many patients do you typically see in a given 15 week? 16 A. It varies quite a bit because of the nature of my 17 particular practice, but perhaps I see 60 patients 18 in a given week. 19 Q. So part of the reason you write notes is to be able 20 to remember what you observed on previous 21 occasions? 22 A. Yes. 23 Q. All right. And without notes, that would become an 24 impossibility, would it not? 25 A. It would become difficult for me. There's some 89 1 doctors who have much better recall than I have. 2 Q. And is it your contention that Dr. Kirby is one of 3 them? 4 A. I don't know. I mean, he appeared to remember quite 5 a bit about Cathleen in his deposition, so he does 6 appear to have an excellent recall. 7 Q. He remembered quite a bit, in fact, that wasn't even 8 in his notes, did he not? 9 A. Yes. That is fairly typical. 10 Q. He remembered what the color of her lesion looked 11 like in December of 1995, did he not? 12 A. As I recall. 13 Q. All right. Without the benefit of notes? 14 A. Correct. 15 Q. He recalled what the texture of the lesion was, 16 correct? 17 A. Yes. 18 Q. Without the benefit of notes? 19 A. Yes. 20 Q. And he remembered whether it was hard or soft, did 21 he not? 22 A. Yes. 23 Q. Without the benefit of notes? 24 A. Correct. 25 Q. All right. And you are willing to accept those 90 1 recollections as the truth? 2 A. Under the circumstances, yes, because I have no hard 3 evidence that it isn't, so therefore I must accept 4 that based on the material presented to me. 5 Q. All right. And if you were going to have to weigh 6 the assertions of Cathleen Lane based on her 7 recollections of what occurred in her mouth against 8 the strength of Dr. Kirby's recollections based on 9 what he saw in a patient, the patient's mouth two 10 years before his deposition was taken, would you 11 give them equal weight? 12 A. No. 13 Q. Whose would you give more weight to? 14 A. Because the doctor is an experienced examiner of 15 mouths and has been able to look into her mouth, 16 which she has not been able to look in her mouth, I 17 would have to give very heavy weight to the doctor's 18 opinion. 19 Q. Even on a question such as hardness or softness? 20 A. Yes. 21 Q. So under those circumstances you will always -- 22 under those circumstances you will invariably accept 23 the doctor's interpretation because of his expertise 24 and specialized knowledge? 25 MR. HULME: Object to the form of the 91 1 question. Under what circumstances? 2 A. Yeah, okay, unless I have hard evidence not to 3 believe that, for example x-ray evidence or written 4 evidence or an equally experienced examiner 5 providing an evaluation, but in the absence of that 6 I would have to accept the doctor's opinion as to 7 what the doctor saw. 8 Q. Now, from Dr. Kirby's notes -- I think you indicated 9 earlier Dr. Callahan saw no lump; is that right? 10 A. That's my understanding. 11 Q. Those are the facts that you have chosen to accept 12 as the facts upon which you base your opinions in 13 this case? 14 A. In part. 15 MR. HULME: Toby, I believe he said 16 after the extraction he did see a lump. 17 MR. HIRSHMAN: I don't think he did. 18 Let's just ask him. 19 A. Yeah. 20 Q. Are you suggesting that Dr. Callahan saw a lump 21 before the extraction or not? 22 A. I don't know the answer to that. I did not see that 23 written and I did not read testimony about that. 24 Q. We know this much, it was there when Dr. Kirby saw 25 Cathleen on the 8th of December? 92 1 A. Yes. 2 Q. It was there when he saw her on the 29th of 3 December? 4 A. Yes. 5 Q. It was there when he saw her on February 6th? 6 A. Of '96? 7 Q. Of 1996. 8 A. Yes. 9 Q. And is there any further documentation of it 10 thereafter in the records that you're aware of? 11 A. Not that I'm aware of. 12 Q. At any point in time? 13 A. Correct. 14 Q. Was it there when Dr. Synenberg saw the patient? 15 A. I believe that it was there at least on the lingual 16 side. 17 Q. In your report, let's see if I can find it. You 18 indicate on page five, I would not expect Dr. Kirby, 19 a general dentist, to arrive at a clinical diagnosis 20 of cancer that two highly reputed dental specialists 21 did not. Do you see that? 22 A. Yes. 23 Q. What highly reputed dental specialists are you 24 referring to? 25 A. The two that I'm aware of that Cathleen Lane saw 93 1 would be Dr. Howard Synenberg and Dr. Ken Callahan. 2 Q. Are you suggesting that both Dr. Callahan and Dr. 3 Synenberg, by virtue of their training and 4 experience and area of specialization, are in a 5 better position to diagnose oral cancer than is Dr. 6 Kirby? 7 A. Well, with respect to Dr. Synenberg, I would expect 8 he would not be in a better position. It is my 9 understanding of the typical practice of the 10 endodontist that they focus very extensively on the 11 tooth and perform root canals for teeth. 12 Q. They have obligations to be aware of cancer, I 13 presume? 14 A. Yes, it is my opinion that if an endodontist being 15 referred a patient for a root canal saw a suspicious 16 looking lesion for cancer, having the hallmarks we 17 discussed earlier in this deposition, I believe it 18 incumbent upon that doctor to get a biopsy or make a 19 referral for that. 20 Q. All right. Nevertheless, you seem to be suggesting 21 that as a practical matter Dr. Synenberg would be 22 focused on doing root canals? 23 A. Yes, that is my understanding of the primary 24 practice of endodontics. 25 Q. Okay. 94 1 A. Dr. Callahan, on the other hand, would be in a 2 better position to make a clinical diagnosis of oral 3 cancer, probably having seen a number of cases 4 throughout his career, and I believe had this 5 patient presented with hallmarks of oral cancer Dr. 6 Callahan or any oral surgeon would have proceeded to 7 biopsy or send the patient back to the doctor who 8 was following her. 9 Q. And would have had an obligation to do so? 10 A. Yes, if her symptoms were consistent with cancer and 11 not consistent with the much more likely scenario of 12 a dental abscess, I would think the doctor should 13 make the referral or do the biopsy. 14 Q. So when Dr. Kirby refers Cathleen to Dr. Callahan, 15 he has a right to expect Dr. Callahan to use his 16 diagnostic acumen to assess the situation before 17 pulling a tooth? 18 A. Yes. 19 Q. And that's part of Dr. Callahan's obligation to the 20 patient, I presume, is it not? 21 A. It would be. 22 Q. All right. To make a measured and intelligent 23 judgment of the nature of the situation and the 24 benefits and risks of performing an extraction 25 procedure before doing it? 95 1 A. Yes. 2 Q. And in the event that there was, as part of his 3 duties Dr. Callahan has an obligation to make a 4 differential diagnosis of a problem before 5 proceeding to extract a tooth? 6 A. Yeah, I believe all doctors do that -- 7 Q. Okay. 8 A. -- with every procedure that they are about to 9 complete. 10 Q. And do you have an opinion as to whether Dr. 11 Callahan did that in this case? 12 A. The records seem to indicate that he made an 13 evaluation of the patient's mouth, agreed with Dr. 14 Kirby that extraction was indicated, and proceeded 15 to take out the tooth and recognized that there 16 could be serious complications to the -- of this 17 particular extraction of Cathleen Lane, some 18 relating to the technical difficulty and some 19 relating to the radiation and high potential for 20 osteoradionecrosis. 21 Q. Did you read his deposition, Dr. Callahan's? 22 A. I did. 23 Q. Did Dr. Callahan have an obligation to have a 24 current x-ray before performing his extraction? 25 A. You need to have an x-ray that would allow you to 96 1 successfully perform the extraction, so if you had a 2 relatively recent x-ray, and frequently in our 3 profession we accept x-rays a year or two old so as 4 not to subject a patient to repeated radiation, if 5 you have an x-ray that will logically show the area 6 and the roots involved that is acceptable. 7 Q. You don't believe that Dr. Callahan would have 8 benefitted from an x-ray showing the pathologic 9 process which formed the basis for the referral? 10 MR. NORMAN: Objection. 11 MR. RYMOND: Objection. You're 12 suggesting that the x-ray that he had didn't 13 show the pathologic basis which formed the 14 basis for the referral, and I'm not sure that's 15 true. 16 A. It's my understanding that Dr. Callahan had an 17 appropriate x-ray in order to safely remove the 18 tooth. It's also my opinion that had he taken 19 another x-ray that day, it would not have been 20 substantially different than the periapical films 21 that were taken approximately a month earlier. 22 Q. Would you have expected him to have a film showing 23 the -- would you expect him to have a film taken 24 since the problems with tooth 19 arose? 25 A. No. 97 1 Q. No? 2 A. No. 3 Q. So if he had a film that was taken half a year 4 earlier, that wouldn't bother you at all? 5 A. No, not in this particular case. 6 Q. And why is that? 7 A. Because he had the information he needed to 8 successfully remove tooth number 19. 9 Q. What information did he need? 10 A. You need an x-ray showing the tooth in its 11 entirety. 12 Q. You don't need an x-ray showing the pathological 13 process at work on the tooth? 14 A. Not necessarily, but again, the x-rays don't show 15 the pathologic process very well. 16 Q. X-rays are utilized to make a determination as to 17 whether or not there is an abscess, for instance? 18 A. They can be. 19 Q. And are you suggesting that it would not have 20 been -- 21 - - - - 22 (Pager interruption.) 23 - - - - 24 A. Let me write this down and we'll -- I should be able 25 to deal with it later. Okay. 98 1 Q. Are you suggesting there would have been no benefit 2 to Dr. Callahan from having an x-ray showing the 3 abscess for which he was pulling the tooth? 4 A. Correct, it would have been of no additional 5 benefit. 6 Q. Do you agree with Dr. Kirby that he, meaning Dr. 7 Kirby, had a right to expect that Dr. Callahan would 8 get the October 10th path report as part of his fact 9 finding efforts? 10 A. No. 11 Q. You disagree with him on that? 12 A. Can you restate that? 13 MR. HIRSHMAN: I'll have the Court 14 Reporter read it back. 15 - - - - 16 (Thereupon, the requested portion of 17 the record was read by the Notary.) 18 - - - - 19 A. Okay. It would depend on what the issue was, and I 20 believe there was a conversation between Dr. Kirby 21 and Dr. Callahan. Of course, I did not hear that 22 conversation. 23 If Dr. Kirby told Dr. Callahan that tooth 24 number 19 is infected and is not responding to root 25 canal treatment and it is his opinion that the tooth 99 1 needs to come out and can we possibly do an implant, 2 then I believe that there is no need to have Dr. 3 Callahan call Dr. Witt and find out what the biopsy 4 is because we're dealing with an infection. 5 However, if Dr. Kirby was concerned that there 6 was a tumor or cancer and was making a referral for 7 that reason, then I believe Dr. Callahan would 8 investigate. So it's my understanding that they 9 clearly received the referral in order to extract 10 this infected tooth. 11 Q. So you disagree with Dr. Kirby? 12 A. Dr. Kirby is entitled to his opinion on that. 13 Q. You read his deposition? 14 A. Yes. 15 Q. And you saw that passage? 16 A. Yes. If Dr. Kirby felt that that is the case, that 17 is certainly his opinion of what he thought Dr. 18 Callahan should do. 19 Q. And you disagree with him? 20 A. I don't know if I can disagree with what Dr. Kirby 21 thinks. 22 Q. Well, okay. When you see a patient you have an 23 intake form, I presume? 24 A. I do. 25 Q. And it asks the patient for his or her name, 100 1 address, insurance information, other doctors. Does 2 it include -- 3 A. It includes their physician, their dentist and who 4 referred them, whether it be a doctor or a patient 5 or et cetera. 6 Q. So you specifically, in your intake process, learn 7 the names of your patients' dentists? 8 A. I do. 9 Q. Okay. Why is that? 10 A. For many reasons, but I generally communicate with 11 the referring dentist after I evaluate the patient 12 by phone and/or by letter, so I have to know who to 13 communicate with. 14 Q. Communication between you and dentists is something 15 that you consider to be important? 16 A. In general, yes. 17 Q. Why? 18 A. It's just the nature of medical and dental 19 practice. Most of the time the dentist is sending a 20 patient for a specific evaluation or a specific 21 treatment and they need to have the information I 22 provide in order for them to provide the care they 23 want for the patient. 24 Q. Even when a patient is being sent to you by an 25 internist, I presume you get the name of the 101 1 dentist? 2 A. I do. 3 Q. And you communicate with the dentist? 4 A. Not necessarily. That would depend on the nature of 5 the internist's referral. 6 Q. Certainly when a patient is referred to you by a 7 dentist for a particular purpose, you find it 8 important to communicate back to that dentist 9 regarding the results of your care and treatment? 10 A. Yes. 11 Q. And you do that in writing? 12 A. I do that either by phone or writing or both. 13 Q. Do you know whether that happened when Dr. Synenberg 14 was referred Cathleen by Dr. Kirby for the second 15 root canal? 16 A. I don't think there was written communication 17 between the doctors. As I recall it, Dr. Kirby 18 recommended a different endodontist for Cathleen and 19 Cathleen chose not to see the recommended 20 endodontist but to see a different endodontist. 21 Q. With Dr. Kirby's approval and referral, correct? 22 A. I don't know. I don't recall, but if that's in the 23 testimony I will accept that. 24 Q. Suffice it to say, you find communication with your 25 referring physicians and dentists to be of 102 1 importance in your practice? 2 A. It is important to me. 3 Q. Okay. 4 MR. RYMOND: Toby, are you by any 5 chance about close? 6 MR. HIRSHMAN: I don't know. I've got 7 quite a bit more here, but I know how things go 8 with me. I'm likely to go through lots of 9 pages without having anything to add because 10 I've already discussed these things, so my 11 guess is we're going to move along quite 12 quickly. If you want to take a break we can do 13 that. 14 MR. RYMOND: I need to take a quick 15 break. 16 - - - - 17 (Thereupon, a recess was had.) 18 - - - - 19 (Thereupon, Cheryl Atwell, Esq. left the 20 deposition room.) 21 - - - - 22 Q. I'm going to ask you some questions. Maybe some 23 will be simple, maybe some will get harder, but I'm 24 going to ask you for your opinions as to when this 25 cancer was present. And we touched on it a little 103 1 bit already. 2 I take it it's your opinion that in April of 3 19 -- let's say April 1st of 1996 there was 4 certainly a cancer present? 5 A. Yeah. We have documented evidence of cancer on the 6 basis of the biopsy, so cancer was present. 7 MR. NORMAN: Are you -- 8 Q. The biopsy -- 9 A. Dr. Goldberg's. 10 Q. -- on the 16th, so we're talking about two weeks 11 before that? 12 A. Oh, it is my opinion there was cancer. 13 Q. All right. And how about on February 27th, 1996? 14 A. It is my opinion that there was cancer in the bone 15 at that time. 16 Q. Not only cancer but cancer in the bone? 17 A. Yes. 18 Q. Okay. 19 A. And that is the reason the socket would not heal 20 after extraction. 21 Q. And how about on December 18th, 1995? 22 A. It is my opinion there was cancer already in the 23 bone at that time. 24 Q. And on October 10th, 1995, do you have an opinion as 25 to whether there was cancer already at that time? 104 1 A. There I can only speculate that there probably was 2 cancer clinically undetectable, but I cannot state 3 with certainty whether or not there was. 4 Q. Can you state with a reasonable medical probability 5 that there was already cancer on October 10th, 1995? 6 A. I can't. 7 Q. Can you tell me what stage this cancer was on April 8 1st, 1996? 9 A. I believe it would be called Stage IV. 10 Q. On the basis of what? 11 A. The invasion into the bone. 12 Q. And how do you understand a Stage IV to be -- what 13 are the criteria by which Stage IV is determined? 14 A. Again, I cannot quote all the criteria. I would 15 have to look at the charts. But basically it's 16 based on the size of the tumor, whether or not 17 there's a node or metastasis involvement and whether 18 or not there's invasion of contiguous structures, 19 and I do recall invasion of contiguous structures, 20 say gum and bone, would put you into a Stage IV. 21 Q. Does invasion of the cortex of the bone constitute 22 Stage IV, in your opinion? 23 A. Yes, it does. 24 Q. Based on what staging criteria, whose staging 25 criteria? 105 1 A. I think it's the American Cancer Society Staging 2 Manual. 3 Q. Is that the staging system that you utilize, the 4 American Cancer Society Staging Manual? 5 A. Yes. 6 Q. Do you have an opinion as to what stage Cathleen was 7 on February 27th, 1996? 8 A. The same. I believe she already had an invasion 9 into the bone, and therefore it would be Stage IV. 10 Q. Do you have an opinion as to what stage Cathleen was 11 on December 18th, 1995? 12 A. Yes, I believe the same. 13 Q. The same would be true for December 8th, 1995? 14 A. Yes. 15 Q. Again, based on invasion of the bone? 16 A. Yes. 17 Q. Do you have an opinion as to what -- I guess you 18 don't have an opinion as to regarding staging in 19 October -- 20 A. Correct. 21 Q. -- of '95. Do you have an opinion as to when 22 Cathleen's severe dysplasia would have first been 23 detectable? 24 A. No. 25 Q. No opinion? 106 1 A. No. I can tell you when it was. 2 Q. You can tell us when it was detected? 3 A. But I cannot tell you how long before there would 4 have been something clinically detectable. 5 Q. So we can state with certainty that on October 10th, 6 1995 severe dysplasia existed and was detectable? 7 A. Yes. 8 Q. And was detected? 9 A. Yes. 10 Q. You're unable to tell me whether it was detectable 11 at any time prior to that? 12 A. Correct. 13 Q. To a reasonable probability? 14 A. Correct. 15 Q. Do you have an opinion regarding Cathleen's 16 prognosis as of the time of her diagnosis? 17 A. Based on my understanding of a cancer prognosis of 18 Stage IV, my understanding is that she has a 20 to 19 25 percent five-year survival. 20 Q. And do you have an opinion as to her prognosis as we 21 sit here today? 22 A. No. 23 Q. No opinion? 24 A. Well, I know she's several years out and I don't see 25 any evidence that she has an additional tumor, so 107 1 her prognosis is certainly no worse and probably 2 better, but I cannot give you a statistic on that. 3 Q. So the best statistics that you have at this point 4 are those that deal with Stage IV cancers at the 5 time of diagnosis? 6 A. Yes. 7 Q. Meaning 20, 25 percent? 8 A. Yes. 9 Q. Can you tell me, and I take it by virtue of the fact 10 that you believed she was a Stage IV in March, that 11 it would be your opinion that her prognosis, had she 12 been diagnosed in March of '96, would be the same? 13 A. Yes. 14 Q. The same for February? 15 A. Yes. 16 Q. The same for January? 17 A. Yes. 18 Q. The same for December? 19 A. Yes. 20 Q. The same for November? 21 A. I don't know. 22 Q. And October? 23 A. I don't know. 24 Q. So if I understand your testimony, you're unable to 25 state whether she had cancer in October of 1995? 108 1 A. I am unable to state with what would be called 2 reasonable medical certainty I suspect she did. 3 Q. But you cannot state to a reasonable medical 4 probability, meaning more likely than not, what her 5 condition was, as to whether she had cancer or not, 6 in October of 1995? 7 A. Correct. The only thing that I can state with 8 certainty is that in the site of the biopsy in the 9 floor of the mouth she did not. 10 Q. All right. 11 A. But in the alveolus around tooth number 19 I cannot 12 tell you with certainty whether she did. 13 Q. But by December she was Stage IV? 14 A. In my opinion, yes. 15 Q. Would you agree that a natural history or course of 16 cancer progression beginning with a cancer being 17 present in December and being a five centimeter -- 18 well, let me see if I can rephrase this. 19 Do you find anything unusual, as you understand 20 the natural history of oral squamous cell carcinoma, 21 about a progression from severe dysplasia in October 22 of '95 to a five centimeter tumor in May of 1996? 23 A. Well, it's not clear to me that the area of the 24 severe dysplasia in the floor of the mouth is 25 actually even the same lesion that Dr. Kirby saw 109 1 with the swelling adjacent to number 19. I still 2 have not seen any evidence that the lesions are 3 physically connected together in time or space. 4 Q. All right. I guess what I'm asking you is this, is 5 a progression over that period of time, which is, 6 what, five, six, seven months, from severe dysplasia 7 to a five centimeter tumor inconsistent with your 8 understanding as to the rate of growth of cancers of 9 this type? 10 A. It is difficult to say. This is an unusual 11 situation and what appears to be a second primary in 12 a woman who doesn't have the typical cancer risk 13 factors, yet develops cancer and has radiated bone, 14 so I really have no opinion about how fast cancer 15 would spread in that particular kind of patient. 16 Q. All right. Let's assume for a moment that 17 Cathleen's tumor had been eradicated as a dysplasia, 18 okay, on or about October 10th, 1995 or shortly 19 thereafter. Do you have an opinion as to what 20 Cathleen's life expectancy would be as we sit here 21 today? 22 MR. NORMAN: Objection. 23 MR. HULME: Objection. 24 MR. HATCHADORIAN: Objection. 25 MR. RYMOND: Objection. 110 1 A. Again, my understanding is that the lesions are 2 separate, that the area of the dysplasia is not in 3 the floor of the mouth and the swelling is in the 4 dental alveolus, which is a manifestation of the 5 tumor in the bone, so I cannot say that the two are 6 actually connected. 7 Q. So you're saying that this cancer arose 8 independently of the dysplastic precancerous 9 lesion? 10 A. It may well have. 11 Q. And that's your opinion to a reasonable medical 12 probability? 13 A. Well, since they are not physically connected, I 14 have drawn that conclusion. 15 Q. To a reasonable medical probability? 16 A. Yes. 17 Q. Okay. Let's assume that Cathleen had had her cancer 18 eradicated as a severe dysplasia, regardless of what 19 cancer it might be or what lesion it might be. 20 Let's assume her cancer had been eradicated as a 21 severe dysplasia. Do you have an opinion as to what 22 her life expectancy would be after that 23 eradication? 24 MR. HULME: Objection to the form of 25 the question. 111 1 A. Yeah, if I understand the question the only lesion 2 she ever had was the dysplasia and there was no 3 other lesion anywhere else. I can't give you an 4 exact statistic, but my understanding is that her 5 life expectancy would be close to normal. 6 Q. So if I understand correctly, you believe that there 7 was a severe dysplasia in the area of the floor of 8 her mouth on the left and that in addition to that 9 and simultaneous with that there was a cancer in and 10 about tooth 19? 11 A. Yeah, in the tissues. It wouldn't start in the 12 tooth, per se, but -- 13 Q. In the tissues around the tooth? 14 A. In the tissues immediately around the tooth. 15 Q. All right. And your basis for saying that is what? 16 What evidence do you have of an independent cancer 17 separate and distinct from the dysplasia that was 18 documented on October 10th? 19 A. The clinical presentation and the documentations in 20 the charts and the depositions. There's no longer 21 any evidence that there is a lesion in the floor of 22 the mouth. 23 Q. Hold on a minute. Go ahead. I'll have her read it 24 back. 25 A. Also there's not a contiguous mass. If the lesion 112 1 that was dysplasia in the floor of the mouth was 2 really a cancer, say underneath that there was 3 cancer or the dysplasia progressed to cancer, you 4 would have a firm mass in the floor of the mouth 5 eroding into the bone. I see no evidence of that 6 anywhere. 7 MR. HIRSHMAN: Why don't you read that 8 all back to me. 9 - - - - 10 (Thereupon, the requested portion of 11 the record was read by the Notary.) 12 - - - - 13 Q. You indicated there's no longer evidence of a lesion 14 in the floor of the mouth? 15 A. Yes. 16 Q. You mean subsequently? 17 A. Correct. Dr. Silverman's note does not point to any 18 irregularity in the floor of the mouth, and 19 apparently she's doing a very thorough exam. It 20 points to a nonhealing extraction socket in the 21 dental alveolus. 22 Q. So if there had been an observation of a lesion in 23 the floor of the mouth or the gum by Dr. Silverman, 24 you would reconsider whether or not the dysplasia is 25 one and the same as the cancer? 113 1 MR. HATCHADORIAN: Objection. 2 MR. HULME: Objection as to form. 3 MR. RYMOND: Objection. 4 MR. HULME: You put two things into the 5 question. 6 Q. Okay. 7 A. Yeah, but then I was distracted by the objections. 8 MR. RYMOND: By the simultaneous 9 objections. 10 A. Okay. Can you read that back to me? 11 Q. That's a hint for you to think before you answer 12 that. 13 MR. HULME: It was a hint to you that 14 it was a trick question. 15 MR. RYMOND: Yes. 16 Q. Exactly. They're hinting to you. 17 MR. HULME: No, I'm stating 18 explicitly. 19 MR. RYMOND: Actually, I was objecting 20 to the form of the question. 21 - - - - 22 (Thereupon, the requested portion of 23 the record was read by the Notary.) 24 - - - - 25 A. If there's a lesion in the floor of the mouth that 114 1 is physically contiguous with the lesion in the 2 alveolus that wasn't healing, then I would think 3 that they are one and the same. 4 Q. In close proximity, would you grant me that much? 5 A. But it actually, physically has to be part of the 6 same lesion. 7 Q. Well, do you agree that dysplasias can come and go 8 in terms of their clinical presentation? 9 A. Yes. 10 Q. In other words, you can have a dysplasia that is 11 there on a microscopic level which will manifest 12 itself as a breakdown in the mucosa, correct? 13 A. Correct. 14 Q. And that mucosa may then heal itself only to break 15 down again at a later point in time? 16 A. Yes. 17 Q. All right. So there may or may not be two lesions 18 that you can juxtapose next to each other and prove 19 their contiguousness from a clinical standpoint? 20 A. It can be very difficult to do that. 21 Q. All right. So would it be fair to say that if there 22 was in fact a lump noted by Dr. Silverman on April 23 16th in the general vicinity of the biopsied area 24 from October 10th, you might have to reconsider your 25 response? 115 1 MR. NORMAN: Objection. 2 MR. RYMOND: Objection. 3 MR. NORMAN: What do you mean by 4 general vicinity? 5 MR. HIRSHMAN: In close proximity. 6 MR. RYMOND: Oh, okay. Objection then 7 in that case. 8 MR. HULME: Objection. 9 A. If it seems to be a part of the same mass or lesion, 10 I would have to agree it's one and the same. If 11 they're physically separate and distinct, I have to 12 believe that, you know, the disease processes are 13 separate. You're going to have cancer in one area 14 and dysplasia in an area distinct from the other. 15 Q. So the closer the two areas of concern, the more 16 likely there's a relationship between the dysplasia 17 of October and the cancer found -- 18 MR. RYMOND: Objection. 19 Q. -- in April? 20 MR. RYMOND: Objection. 21 A. Perhaps. 22 Q. Perhaps, all right. And the other reasons that you 23 mention for reaching the conclusion that we're 24 talking about two different processes going on were, 25 number one, the absence of a contiguous mass, which 116 1 I think we've already talked about, correct? 2 A. Yes. 3 Q. And the other one was that there was no firm mass in 4 the floor of the mouth eroding or no firm eroding 5 mass in the floor of the mouth, correct? 6 A. Yes. 7 Q. All right. Cancers of this type are typically firm, 8 I take it, and hard? 9 A. Squamous cell carcinoma, in my experience, is firm. 10 Q. Have you seen anything to suggest that Cathleen is 11 responsible for the outcome that she's had in terms 12 of anything that she failed to do that she should 13 have done or anything that she did that she 14 shouldn't have done? 15 A. I don't know because I'm not sure what transpired 16 between Cathleen Lane and Dr. Witt, okay. If Dr. 17 Witt advised follow-up and Cathleen Lane didn't do 18 it, she might be responsible to some degree. 19 Q. Okay. 20 A. If that information was not provided to Cathleen 21 Lane, they cannot find her responsible. 22 Q. All right. I take it you're offering no criticisms 23 of any of the other defendants in this case? 24 A. No, I am not. 25 Q. Do you have patients in your practice who you see 117 1 from time to time who have had prior oral cancers? 2 A. Yes. 3 Q. Do you follow them? 4 A. Yes. 5 Q. How do you follow them? 6 A. I have them return at intervals ranging from three 7 months to six months and I do an examination. If 8 there was cancer involving the bone I'd take an 9 x-ray and if necessary, if I see some suspicious 10 lesions, I biopsy them. 11 Q. And you have them come in every three to six months 12 for how long? 13 A. I follow them forever, but I don't have so many, 14 unlike a head and neck surgeon who is primarily 15 treating these patients, it's impractical for them 16 to follow them forever because the schedule would be 17 filled with follow-ups and there would be no time to 18 see actual cancer that needed treatment. 19 Q. But in your office you see -- 20 A. In my office the patients that I see I tend to have 21 them come back on an ongoing basis. 22 Q. Every three to six months for the rest of their 23 lives? 24 A. Yes. That's not to say that I think that's the 25 standard of practice. That's the practice that I 118 1 provide. 2 Q. I understand. And if they've been previously 3 irradiated you still do that? 4 A. Yes. 5 Q. And do you find benefit to that in that -- you don't 6 find previously irradiated patients are impossible 7 to monitor for future cancers, do you? 8 A. No, but I find that their mouths are much more 9 difficult to examine and interpret. 10 Q. And when you have problems that arise that make it 11 difficult for you to interpret what's going on, I 12 presume you take extra steps in order to try to 13 resolve those questions in your mind? 14 A. I do. 15 Q. And what steps do you take? 16 A. They may be required to come back in two to four 17 weeks for an extra observation period, and if I am 18 questioning the persistence of a lesion that might 19 be suspicious and it's still present two to four 20 weeks later, I biopsy it. 21 Q. Let's assume that when Cathleen went to Dr. Callahan 22 on February 12th of 1996 she had a lump in her 23 lingual gingiva. 24 MR. HULME: In the what? I'm sorry. 25 MR. HIRSHMAN: Lingual. 119 1 MR. HULME: Lingual. 2 MR. NORMAN: On which date? 3 MR. HIRSHMAN: February 12th. 4 Q. And that it remained there thereafter, even after 5 the tooth was pulled, that there was a swelling. Is 6 that a reasonable assumption that we can make or is 7 that inconsistent with the way the gum is somehow 8 structured? 9 A. I'm not sure what you're asking because I don't know 10 what Dr. Callahan -- I don't know if we can make 11 that assumption that that is what Dr. Callahan in 12 fact saw. 13 Q. I'm not asking you to testify as to that. 14 A. But a hypothetical, you're saying if he saw a 15 persistent swelling? 16 Q. Yes. 17 A. Then what are you asking? 18 Q. What should he have done? 19 A. If there is no logical explanation for that swelling 20 related to the extraction, such as persistent 21 infection, I think it's reasonable to biopsy the 22 area. 23 Q. I'm going to ask you to assume that this cancer in 24 Cathleen's mouth went through its entire evolution 25 during the month of April. Can you make that 120 1 assumption for me? 2 A. It went from not cancer to -- 3 Q. To a five centimeter cancer. 4 A. No, that's not consistent with reality, so I'm not 5 sure how making an assumption can lead to any 6 logical testimony. 7 Q. So you think I'm making an absurd assumption here? 8 A. Yes. 9 Q. What does a periodontist do? 10 A. By and large they evaluate and treat diseases of the 11 periodontium, that would be the gum and bone tissues 12 surrounding the teeth. 13 Q. Did you notice that Dr. Kirby planned to send 14 Cathleen to a periodontist? 15 A. I did notice that. 16 Q. Is that a typical referral that's associated with an 17 endodontic lesion? 18 A. It's not typical of an endodontic lesion, but it is 19 typical for a lesion that the dentist believes to 20 have both the endodontic system and the periodontal 21 system involved. 22 Q. Is it a frequent occurrence to have an endodontic 23 problem and a periodontic problem occurring 24 simultaneously? 25 A. Well, it's much more frequent than, say, oral 121 1 cancer, if that would help, but it's not near as 2 frequent as having either a periodontal lesion or an 3 endodontic lesion. Only a very small percentage of 4 patients who have one or the other would have both. 5 Q. So the fact that Dr. Kirby was entertaining a 6 periodontal referral suggests a somewhat atypical 7 presentation in this patient? 8 A. Well, it suggests the typical presentation of a 9 periodontal/endodontic problem, in that it seems 10 like both issues are in effect. 11 Q. All right. Which is not the usual situation? 12 A. Correct. 13 Q. Dr. Kirby from his notes appears to have asked 14 Cathleen to take a picture of her mouth at one 15 point. Did you see that? 16 A. I believe he wanted to take a picture of her mouth. 17 Q. That's your understanding, that Dr. Kirby was 18 contemplating taking a picture of Cathleen's mouth? 19 A. That's the way I interpreted that. 20 Q. Why would that be something that he might wish to 21 do? 22 A. It might help him compare the way a lesion looks at 23 the current point in time when he was taking the 24 picture to another point in time, perhaps a few 25 weeks or a few months later. 122 1 Q. What is your understanding as to whether those 2 pictures were taken? 3 A. I don't think they were taken. 4 MR. HIRSHMAN: That's all I have. 5 Thanks. 6 MR. HATCHADORIAN: Would you like to 7 take a break for a couple minutes? 8 MR. NORMAN: Do you have much? 9 MR. HATCHADORIAN: Five minutes. 10 THE WITNESS: I am fine. 11 - - - - 12 CROSS-EXAMINATION OF MICHAEL S. HAUSER, DMD, MD 13 BY MR. HATCHADORIAN: 14 Q. Dr. Hauser, my name is Mat Hatchadorian and I 15 represent Dr. Whelan. What is leukoplakia? 16 A. Leukoplakia is generally considered a white patch in 17 the gums that has no other explanation for being 18 there. 19 Q. Is it a condition that comes and goes? 20 A. Frequently. 21 Q. If you find white patches in a person's mouth, does 22 that automatically mean that you biopsy? 23 A. No. 24 Q. What are the considerations that you go through in 25 your practice in deciding whether to take a biopsy; 123 1 what are some of the things you consider? 2 A. A biopsy of a white lesion or -- 3 Q. A biopsy of something unusual in the mouth. Maybe 4 it's too broad a question. If you can't answer it, 5 I'll make it more specific. Say bumpy spots under 6 the tongue, let's start with that. 7 A. Well, I would biopsy a lesion if it did not have a 8 logical explanation for being there and might not be 9 benign. 10 Q. But just because something is white that doesn't 11 mean you biopsy it? 12 A. No. 13 Q. How about if the tip of the tongue was red and was 14 bleeding; does it automatically require a biopsy? 15 A. Again, it would depend on the clinical scenario. It 16 would certainly require observation. 17 Q. Right. 18 A. It would certainly require an explanation. 19 Q. Right. 20 A. But it doesn't necessarily require a biopsy. It may 21 have been recently biopsied. It may come and go. 22 Q. Is it fair to say that a dentist has to use clinical 23 judgment in deciding whether to biopsy? 24 A. Yes. 25 Q. Is it fair to say it's a factor of his index of 124 1 suspicion? 2 A. Yes. 3 Q. Is it fair to say that sometimes a dentist has to 4 look at it over a long period of time in formulating 5 an opinion as to whether to biopsy or not? 6 A. That would depend on the clinical situation and the 7 patient. A very suspicious lesion and one with the 8 hallmarks of oral cancer that was discussed earlier 9 in this deposition I do not think should be observed 10 over a very long period of time before biopsy. I 11 think that should be biopsied relatively soon. 12 Other lesions which have a benign appearance or 13 which seem to come and then go don't require biopsy 14 necessarily. 15 Q. And the appearance, is that a consideration, how it 16 appears to the dentist? 17 A. Yes. 18 Q. In a given situation, if one dentist elected to 19 refer the patient for a biopsy and another dentist 20 elected not to refer the patient for a biopsy, do 21 you think it would be possible that both might be 22 acting consistent with the standard of care? 23 A. Yes. 24 Q. If a person has undergone radiation and chemotherapy 25 that's altered the oral tissue in the mouth, is that 125 1 a factor in making a decision? 2 A. Yes. 3 Q. We know that Cathleen had a biopsy of her tongue in 4 June of 1994. Were you aware of that? 5 A. In general, but I'd have to look at the record to 6 make that assumption. 7 Q. Assume she had a biopsy June of '94 of her tongue 8 and it was negative. 9 A. Yes. 10 Q. And we know that 16 months later, in October of '95, 11 she had a biopsy of her tongue and of the floor of 12 her mouth that was positive for dysplasia. 13 A. It's my understanding that the floor of the mouth 14 was positive for dysplasia but not the tip of the 15 tongue. 16 Q. All right. We'll make that assumption then, the 17 floor of the mouth. 18 If a biopsy was taken of the floor of 19 Cathleen's mouth in February of '95, halfway between 20 the negative in June of '94 and the positive in 21 October of '95, do you have an opinion within 22 medical probability as to what such a biopsy would 23 have shown? 24 A. No. 25 Q. That's because you have to engage in conjecture, 126 1 guesswork? 2 A. Correct. 3 MR. HATCHADORIAN: Okay. Thank you. I 4 don't have anything further. 5 MR. HULME: Doctor, a couple 6 questions. 7 - - - - 8 CROSS-EXAMINATION OF MICHAEL S. HAUSER, DMD, MD 9 BY MR. HULME: 10 Q. You were asked by Mr. Hirshman if a dental exam 11 should look at more than the teeth, and I think you 12 said look at the mucosae, the floor of the mouth, 13 look at the tongue. Were you describing what we 14 would refer to as a general dental exam, someone 15 who's doing a full mouth exam? 16 A. Yes. 17 Q. And that's the context of which you said you should 18 look at more than the teeth? 19 A. Yes. 20 Q. You also testified that you saw no substantial 21 differences between the 1982 x-rays and the 1996 22 x-rays? 23 A. Yes. 24 Q. Then you also testified that you saw some evidence 25 perhaps of early periodontal disease in and around 127 1 18, 19 and 20 or maybe 19 and 20? 2 A. Yes. 3 Q. Could I assume then that you consider the early 4 periodontal disease to be something that is 5 different than in the 1982 x-rays but is not 6 significant? 7 A. Correct. 8 Q. And your question about the, I guess, reliability of 9 Dr. Kirby's testimony based upon the materials 10 presented to you and that you have reviewed, do you 11 find that what Dr. Kirby has testified to is 12 entirely consistent and believable about what he 13 observed when he observed it? 14 A. Yes. 15 MR. HULME: Nothing further. 16 MR. RYMOND: Dr. Hauser, just a few 17 questions. 18 - - - - 19 CROSS-EXAMINATION OF MICHAEL S. HAUSER, DMD, MD 20 BY MR. RYMOND: 21 Q. You mentioned that you knew of Dr. Dierks through 22 the literature. Specifically how do you know of Dr. 23 Dierks through the literature? 24 A. From time to time I have seen his name on papers 25 dealing with various oral surgery problems, but I 128 1 can't quote those papers to you. 2 Q. You mentioned that you follow patients on a fairly 3 regular basis, I think you indicated every three 4 months or possibly every six months, once they've 5 been diagnosed with a squamous cell carcinoma. Have 6 you ever followed a patient with a second primary 7 squamous cell carcinoma which occurs more than five 8 years after the completion, the cure of the first 9 cancer? 10 A. I have never had a patient that would fit that 11 description. 12 Q. Is that why five years is generally considered to be 13 once a patient survives five years it's expected 14 they'll live a normal life expectancy? 15 A. Yes. 16 Q. And you also said that if there's persistent 17 swelling after an extraction in a scenario such 18 as -- in a patient such as Cathleen Lane, and I 19 think you were asked to assume there was persistent 20 swelling after the extraction that was performed by 21 Dr. Callahan, that it would be reasonable to do a 22 biopsy. And my question for you is what do you mean 23 by persistent swelling? First of all, I guess how 24 long does it have to be there to be persistent and 25 that sort of thing? 129 1 A. Again, that requires a clinical judgment, but if 2 there is a lesion in the mouth that doesn't resolve 3 with treatment and has no other logical reason for 4 being there, I think a biopsy is reasonable. 5 So again, not having been the primary clinician 6 treating Ms. Lane, I don't know how long I would 7 have to observe it, but it is reasonable for me to 8 believe that I might biopsy the lesion after a 9 number of weeks, had there been a persistent 10 swelling present, but as we know it would not have 11 changed the outcome. 12 Q. And the question of when you would do this biopsy 13 would hinge upon the entire clinical picture in 14 part; is that right? 15 A. Yes. 16 Q. And the only other thing is you have a blue binder 17 of records there that I'm pretty sure I have copies 18 of but I just haven't seen them in so long I'm not 19 sure that I do. 20 MR. NORMAN: This? 21 MR. RYMOND: Yes. 22 MR. NORMAN: These are Dr. Kirby's 23 records. 24 THE WITNESS: These are the dental 25 records of Dr. Kirby. 130 1 MR. RYMOND: Maybe it's not that. I 2 may be standing too far away. I think it 3 includes things other than Dr. Kirby. 4 MR. HIRSHMAN: It looked like Dr. Kirby 5 and Whelan's records. 6 MR. NORMAN: Yes, that's what it is. 7 MR. HIRSHMAN: If there's anything more 8 in there I didn't notice. 9 MS. WHARTON: I have no questions. 10 MR. RYMOND: I'm going to ask that this 11 be marked as a deposition exhibit and attached 12 to the transcript. What are we on, 4? Would 13 you please mark it as 4. 14 MR. NORMAN: Anything else? 15 MR. RYMOND: No, that's it. 16 MR. HIRSHMAN: I've got a few follow-up 17 questions. 18 MR. NORMAN: Sure. Do you have any 19 questions? 20 MS. WHARTON: No, sir. 21 - - - - 22 RECROSS-EXAMINATION OF MICHAEL S. HAUSER, DMD, MD 23 BY MR. HIRSHMAN: 24 Q. Did you meet with any attorneys other than Mr. 25 Norman before today's deposition? 131 1 A. Yes. 2 Q. Who did you meet with? 3 A. Mr. Travis. 4 Q. Anybody else? 5 A. No. 6 Q. Did you know Mr. Hulme prior to today? 7 A. I have met Mr. Hulme. 8 Q. How have you met him? 9 A. I don't know if -- I don't recall if we've done a 10 case or not, but I just have met him. 11 Q. Do you know Mr. Rymond? 12 A. Yes. 13 Q. How do you know him? 14 A. Mr. Rymond has asked me to act as his expert witness 15 on a number of occasions. And I also want to add I 16 think the first time I met Mr. Rymond I was his 17 opponent. I was a plaintiff's expert. 18 Q. How many occasions has he asked you to act as an 19 expert for him? 20 A. I'm going to say approximately half a dozen. 21 Q. Have you ever been sued for malpractice? 22 A. Yes. 23 Q. How many times? 24 A. Two times. 25 Q. Who represented you? 132 1 A. One time I was the attending surgeon at Emery 2 University and the case was primarily against the 3 resident of the dental clinic. 4 Q. That was in Georgia? 5 A. In Georgia. And I don't recall the attorney. That 6 case was dropped. 7 Q. And the other one? 8 A. And the other one involved complication after 9 corrective jaw surgery, and I was represented by Mr. 10 John Scott of the Reminger & Reminger firm and that 11 case was dropped. 12 MR. HIRSHMAN: Okay. That's all I 13 have. Thanks. 14 MR. NORMAN: Thank you. We'll read. 15 - - - - 16 (Thereupon, Plaintiffs' Exhibit 4 was 17 mark'd for purposes of identification.) 18 - - - - 19 20 MICHAEL S. HAUSER, DMD, MD 21 22 23 24 25 133 1 2 C E R T I F I C A T E 3 The State of Ohio, ) SS: 4 County of Cuyahoga.) 5 6 I, Laura L. Ware, a Notary Public within and for the State of Ohio, do hereby certify that the 7 within named witness, MICHAEL S. HAUSER, DMD, MD, was by me first duly sworn to testify the truth, the 8 whole truth, and nothing but the truth in the cause aforesaid; that the testimony then given was reduced 9 by me to stenotypy in the presence of said witness, subsequently transcribed into typewriting under my 10 direction, and that the foregoing is a true and correct transcript of the testimony so given as 11 aforesaid. 12 I do further certify that this deposition was taken at the time and place as specified in the 13 foregoing caption, and that I am not a relative, counsel or attorney of either party or otherwise 14 interested in the outcome of this action. 15 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, 16 Ohio, this day of , 1999. 17 18 Laura L. Ware, Ware Reporting Service 19 3860 Wooster Road, Rocky River, Ohio 44116 My commission expires May 17, 2003. 20 21 22 23 24 25