0001
 1                 COURT OF COMMON PLEAS
 2                       OF CUYAHOGA COUNTY, OHIO
 3                                - -  -
 4   CAESAR C. DAILEY, Individually,    :
 5   and as Administrator of the Estate :
 6   of LILLIAN DAILEY,                 :
 7            PLAINTIFF,                :
 8                 -VS-                 : CASE NO.
 9   OHIO PERMANENTE MEDICAL GROUP,     : CV-07-629950
10   INC., ET AL.,                      :
11            DEFENDANTS.               :
12                         -  -  -
13            Deposition of WILLIAM MALCOLM JAMIESON,
14   III, M.D. a witness herein, taken by the plaintiff
15   as upon direct examination pursuant to the Ohio
16   Rules of Civil Procedure and pursuant to Notice to
17   Take Deposition, duly issued and served, and
18   agreement and stipulations hereinafter set forth
19   at the offices of WILLIAM MALCOLM JAMIESON, III,
20   M.D., 2123 Auburn Avenue, Suite 104, Cincinnati
21   Ohio at 2:00 p.m. on Thursday, April 9, 2009,
22   before Pamela Sue Spangler, a notary public within
23   and for the State of Ohio, and also by means of
24   audiovisual equipment before Marlene Dory.
               SPANGLER REPORTING SERVICES, INC.
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 1                         -  -  -
 2   APPEARANCES:
 3    On behalf of the Plaintiff:
 4            Howard D. Mishkind, Esq.
 5                  of
 6            Becker & Mishkind Co., LPA
 7            1660 West 2nd Street
 8            Cleveland, Ohio  44113
 9    On behalf of the Defendants:
10            Dirk E. Riemenschneider, Esq.
11                of
12            Buckingham, Doolittle & Burroughs
13            1375 East 9th Street
14            Cleveland, Ohio  44114
15                      -  -  -
16                 S T I P U L A T I O N S
17         It is stipulated by and between counsel for
18   the respective parties that the deposition of
19   WILLIAM MALCOLM JAMIESON, III, M.D., a witness
20   herein, may be taken as upon direct examination
21   pursuant to the Ohio Rules of Civil Procedure, and
22   pursuant to agreement; that the deposition may be
23   taken by audiovisual means by the videographer and
24   in stenotypy by the notary public-court reporter
               SPANGLER REPORTING SERVICES, INC.
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 1   and transcribed by her out of the presence of the
 2   witness; that the transcribed deposition is to be
 3   submitted to the witness for his examination and
 4   signature, and that signature may be affixed out
 5   of the presence of the notary public-court
 6   reporter.
 7                        -  -  -
 8                          I N D E X
 9   WITNESS                         DIRECT EXAMINATION
10   WILLIAM MALCOLM JAMIESON, III, M.D.        4
11                            -  -  -
12                        E X H I B I T S
13   PLAINTIFF'S EXHIBITS                        MARKED
14   No. 1, "Uterine fibroids:  Childbearing,
15          Cancer, and hormone effects.           86
16   No. 2, 2 pages of Dr. Jamieson, III's notes.  86
17   
18                          -  -  -
19   
20   
21   
22   
23   
24   
               SPANGLER REPORTING SERVICES, INC.
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 1                 THE VIDEOGRAPHER:  Today is April
 2   the 9th, 2009.  Time now is 2:09.  This is in the
 3   matter of Caesar C. Dailey, individually, and as
 4   Administrator of the Estate of Lillian Dailey,
 5   deceased, plaintiff, versus Ohio Permanente
 6   Medical Group, Inc., et al.
 7                 It is in The Court of Common Pleas
 8   of Cuyahoga County, Ohio.  It is Case No.
 9   CV-07-629950.
10                 The court reporter is Pamela
11   Spangler, and I am Marlene Dori.  We're with
12   Spangler Reporting Services in Cincinnati, Ohio.
13                 Counsel, would you please introduce
14   yourselves?
15                  MR. MISHKIND:  Good afternoon.  My
16   name is Howard Mishkind, and I am the attorney
17   that represents the family of Lillian Dailey.
18                  MR. RIEMENSCHNEIDER:  I'm Dirk
19   Riemenschneider.  I represent Ohio Permanente
20   Medical Group.
21                  THE VIDEOGRAPHER:  Doctor, your
22   name is?
23                  THE WITNESS:  William M. Jamieson.
24                  THE VIDEOGRAPHER:  At this time --
               SPANGLER REPORTING SERVICES, INC.
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 1   This is the beginning of tape number one -- we'll
 2   have the court reporter swear the witness, please.
 3                  (Witness sworn.)
 4                  THE VIDEOGRAPHER:  You may begin at
 5   this time.
 6                  MR. MISHKIND:  Thank you very much.
 7                 WILLIAM MALCOLM JAMIESON, III
 8   of lawful age, a witness herein, having been
 9   previously sworn, was examined and testified as
10   follows:
11                    DIRECT EXAMINATION
12   BY MR. MISHKIND:
13            Q.   Would you please state your name for
14   the record?
15            A.   William M.  Jamieson.
16            Q.   Dr. Jamieson, how are you this
17   afternoon?
18            A.   Excellent, thank you.
19            Q.   My name is Howard Mishkind.  I'm
20   going to be questioning you this afternoon
21   relative to your background and the opinion that
22   you hold in the case of Lillian Dailey; is that
23   okay?
24            A.   Yes.
               SPANGLER REPORTING SERVICES, INC.
0006
 1            Q.   Because we're doing this through the
 2   electronic means where I'm not present with you,
 3   and I'm doing it by phone, in the event that I cut
 4   you off or the court reporter doesn't get my
 5   entire question, if someone there would let me
 6   know, I want to make sure that we have an accurate
 7   transcript both with regard to my questions and
 8   obviously I want to make sure that I hear your
 9   answers completely.  Is that fair?
10            A.   Fair.
11            Q.   If, again, for some reason you're
12   answering and I cut you off because I thought you
13   were done -- I'll try to hesitate as much as
14   possible to give that pause some security that we
15   know that you've finished, but if I do cut you
16   off, Doctor, just please tell me that you weren't
17   done, I will stop and let you finish your answer;
18   is that fair, sir?
19            A.   Fair.
20            Q.   Excellent, thank you very much.  And
21   again, I appreciate you accommodating me today.  I
22   was unable due to scheduling to make it down to
23   Cincinnati, but I certainly appreciate you
24   accommodating me relative to this discovery
               SPANGLER REPORTING SERVICES, INC.
0007
 1   deposition today, doing it in the manner that we
 2   are doing it.
 3                 Would you please tell me where your
 4   practice is located, where your office is?
 5            A.   Cincinnati, Ohio.
 6            Q.   And your office address is what,
 7   Doctor?
 8            A.   2123 Auburn Avenue, Cincinnati,
 9   Ohio.
10            Q.   Who are you employed by, sir?
11            A.   Self-employed.
12            Q.   Do you have other physicians that
13   are in your practice group with you?
14            A.   No.
15            Q.   You understand that this is my
16   opportunity under Ohio Rules to ask you questions
17   for purposes of the -- this case that's scheduled
18   for trial this summer, and to obtain the opinions
19   and the bases for those opinions that you will be
20   providing at the time of the trial?
21            A.   Yes.
22            Q.   And I presume, because I know you've
23   had your deposition taken before, you recognize
24   that I will be relying upon the answers that you
               SPANGLER REPORTING SERVICES, INC.
0008
 1   give today under oath?
 2            A.   Yes.
 3            Q.   If for any reason my question is not
 4   clear, please just tell me -- Howard, I don't
 5   understand what you're asking -- and I will
 6   rephrase the question.
 7            A.   Very good.
 8            Q.   Doctor, I have issued a Notice to
 9   Take Deposition which asks that you bring certain
10   items, and I want to, obviously, because I'm not
11   there, I want to determine whether or not you have
12   your complete file with you in terms of all
13   material that you have reviewed in connection with
14   this case.
15            A.   Okay.
16            Q.   Do you have everything with you?
17            A.   I do.
18            Q.   Has anything been removed from your
19   file prior to the start of this deposition?
20            A.   No.
21            Q.   In the request for discovery, the
22   Notice of Deposition, it also asks that you
23   provide a printout of all e-mails.  Are there
24   e-mails that you have in front of you?
               SPANGLER REPORTING SERVICES, INC.
0009
 1            A.   No.
 2            Q.   Have you had any e-mail exchange
 3   with Mr. Riemenschneider or anyone from his
 4   office?
 5            A.   I'm not an e-mail kind of guy.
 6            Q.   I'll take it then the answer is no?
 7            A.   Never.
 8            Q.   Okay.  I also asked for billing
 9   records, do you have your billing records with you
10   today?
11            A.   I don't.  I'm sure Mr.
12   Riemenschneider has those.
13            Q.   Can you tell me how many hours you
14   have put in on this case thus far?
15            A.   I have no idea.
16            Q.   Who manages your billing?
17            A.   I do.
18            Q.   And how do you keep track of the
19   time?
20            A.   After I've read a deposition or read
21   the articles, I send a letter off to either Mr.
22   Riemenschneider or his secretary with my billable
23   hours.
24            Q.   Sir, do you have with the material
               SPANGLER REPORTING SERVICES, INC.
0010
 1   in front of you copies of all correspondence?
 2            A.   I believe so.
 3            Q.   And would the correspondence contain
 4   copies of the billing that you submitted?
 5            A.   No, that's done on a month-to-month
 6   basis, depending on how much time is put in.
 7            Q.   So when you send a bill to Mr.
 8   Riemenschneider for the work on this case, you
 9   would have enclosed a letter, enclosed please find
10   statement for services rendered, something to that
11   effect; is that true?
12            A.   Correct.
13            Q.   And where would a copy of that
14   letter and a copy of that bill for your record,
15   where would that be maintained?
16            A.   In the trash can.
17            Q.   So it's your testimony that without
18   checking perhaps deposits in your bank account,
19   the only way that we would be able to determine
20   how much you billed or how much you've been paid
21   is to provide that information from Mr.
22   Riemenschneider?
23            A.   I'm sure he'd have much better
24   records of that than I do.
               SPANGLER REPORTING SERVICES, INC.
0011
 1            Q.   I'm sorry, sir?
 2            A.   I'm sure he'd have much better
 3   records of that than I do.
 4            Q.   I'm not sure that I necessarily
 5   agree or disagree with that, but my question is:
 6   Short of asking him, how would we -- without going
 7   to your bank records or looking at your tax
 8   records, how would we know how much had been --
 9   has been paid to you relative to this case?
10            A.   If you didn't go to him, I don't
11   think you'd ever have that information.
12            Q.   Can you give me an estimate of the
13   amount of time that you have spent on this case?
14            A.   Oh, 20, 30 hours.
15            Q.   For purposes of today's deposition,
16   how much time did you spend preparing, rereviewing
17   the material, and spending with Mr.
18   Riemenschneider?
19            A.   One hour today.
20            Q.   Is the 20 to 30 hours, and I realize
21   that that's an estimate, but is that, in your
22   experience, is that basically within the type of
23   range that you spend on a case in terms of
24   reviewing, preparing a report, and preparing for
               SPANGLER REPORTING SERVICES, INC.
0012
 1   deposition?
 2            A.   It all depends on how long the case
 3   goes.  But I would say that's probably average.
 4            Q.   One of the other items, sir, that I
 5   asked for is medical literature which you reviewed
 6   which supports your opinions.  Do you have any
 7   medical literature with you today?
 8            A.   I do have an article, yes.
 9            Q.   Which article would that be, sir?
10            A.   That is -- it was an OB-GYN
11   Management, it was advising your patients on
12   Uterine fibroids:  cancer and hormone effects by
13   William H Parker, M.D.
14            Q.   When was that article published,
15   sir?
16            A.   May of '08.
17            Q.   Do you have any other literature
18   with you today, sir?
19            A.   No, I don't.
20            Q.   Is there any other literature that
21   you have reviewed at any time during the course of
22   this case?
23            A.   No.
24            Q.   Can you tell me why you selected
               SPANGLER REPORTING SERVICES, INC.
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 1   that article as opposed to any other in the
 2   medical literature?
 3            A.   When I first reviewed the case it
 4   just happened to be one of those journals that had
 5   that particular topic in it that I thought was
 6   very relevant in this particular case.
 7            Q.   And what journal is that published
 8   in, sir?  I'm sorry.
 9            A.   It was OBG Management.
10            Q.   What I'd like to do is, rather than
11   stopping at this particular point, if we can agree
12   that a copy of that article will be marked as
13   Plaintiff's Exhibit 1, we could substitute that in
14   at the time that we completed the deposition.
15   There may be some additional items, but do you
16   have any problem with photo copying?
17            A.   No, that should not be a problem at
18   all.  It's like four or five pages only.
19            Q.   Great.  Thank you very much, I
20   appreciate it.
21            A.   You're welcome.
22            Q.   So that would be the extent of the
23   literature that you have with you and the extent
24   of the literature that you've reviewed in
               SPANGLER REPORTING SERVICES, INC.
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 1   connection with this case?
 2            A.   Yes.
 3            Q.   You obviously have your report, I
 4   presume, which is dated August 27?
 5            A.   I believe I do, yes.
 6            Q.   Is that the only report that you've
 7   written in this case, sir?
 8            A.   Yes.
 9            Q.   Did you prepare any drafts before
10   signing the report?
11            A.   No.
12            Q.   What about any notes that you would
13   have made when you were reviewing the records
14   prior to preparing the report?  Are there any?
15            A.   Not with me -- not that we have now.
16            Q.   By your answer it sounds like at one
17   point there were notes?
18            A.   Well, obviously when I review
19   records I usually put little notes to myself
20   before I write the -- I guess it would be the
21   report to Mr. Riemenschneider.
22            Q.   And what happened to those notes
23   after you wrote the report?
24            A.   I usually throw them away.  I've got
               SPANGLER REPORTING SERVICES, INC.
0015
 1   some notes, but not all notes.  As I review
 2   records I'll take little notes to myself.  I've
 3   got some, but probably not all.
 4            Q.   Would these notes that you have,
 5   sir, would they be since you prepared the report
 6   or is it difficult to tell when those notes were
 7   made?
 8            A.   No.  Most of them would have been
 9   before I prepared the report, yes.
10            Q.   Do you have any notes that you have
11   prepared since the August 27th report?
12            A.   No.
13            Q.   Again, because of my disadvantage of
14   not being there, are the notes -- how many pages
15   of notes do you have, sir?
16            A.   There's one -- two.
17            Q.   How legible is your handwriting?
18            A.   Pretty doggone legible.
19            Q.   Great.  What we'll do, Doctor, is if
20   this is okay with you and okay with Mr.
21   Riemenschneider, we will mark your notes, two
22   pages, as Plaintiff's Exhibit 2 and attach that to
23   the transcript?
24            A.   Okay.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   Is that reasonable?
 2            A.   Yes.
 3                  MR. RIEMENSCHNEIDER:  No problem
 4   with that.
 5            Q.   Other than the two pages of notes
 6   and those notes that you would have had prior to
 7   preparing your report that you no longer have
 8   after signing this report, would there be any
 9   other notations anywhere in any of the material
10   that you've reviewed, either marginal notes, notes
11   on any reports, anything else that would have your
12   handwriting on it other than what we've just
13   marked as Plaintiff's Exhibit 2?
14            A.   No.
15            Q.   Doctor, I have your report which
16   identifies material which you had reviewed as of
17   August 27, 2008, it's the second paragraph of your
18   report.
19            A.   Yes.
20            Q.   Was there any other material, sir,
21   that you had reviewed prior to preparing this
22   August 27th report?
23            A.   No.
24            Q.   Since preparing the August 27th
               SPANGLER REPORTING SERVICES, INC.
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 1   report, have you received any additional material?
 2            A.   No.  Well, depositions, yes.
 3            Q.   Tell me, if you would, what material
 4   you have received since the August 27th, 2008
 5   report?
 6            A.   Timing I'm not exactly sure, but I
 7   would guess it would be the depositions of the
 8   physicians at Kaiser, the deposition of your
 9   expert witness, and then I just received last
10   night the deposition of Dr. Young.
11            Q.   And did you read Dr. Young's report?
12            A.   I did.
13            Q.   I'm sorry, his deposition.  Excuse
14   me.
15            A.   Yes, I did.
16            Q.   Had you seen anything authored by
17   Dr. Young prior to receiving the deposition last
18   night?
19            A.   No.
20            Q.   Have you been provided with any
21   other expert reports from the definition in
22   connection with this case?
23            A.   I don't believe so.
24            Q.   You've read Dr. McLellan's
               SPANGLER REPORTING SERVICES, INC.
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 1   deposition?
 2            A.   I did.
 3            Q.   Did you also read his report?
 4            A.   I did.
 5            Q.   You mentioned depositions that you
 6   received after you had prepared your August 27th,
 7   2008 report, and correct me if I'm wrong, but I
 8   believe what you told me was you had received
 9   depositions of doctors from Kaiser, you received
10   Dr. McLellan's, who you referred to as my expert's
11   depositions, and then last night receiving Dr.
12   Young's deposition?
13            A.   Correct.
14            Q.   And you carefully reviewed Dr.
15   McLellan's deposition?
16            A.   I did.
17            Q.   When would you have last read his
18   deposition?
19            A.   Oh, my goodness, whenever it was
20   sent to me, and I couldn't -- well, maybe -- I
21   wouldn't have that.  Probably within the last --
22   whenever the deposition was, and whenever it was
23   sent out, probably a week or so after that.
24            Q.   Do you know the names of any of the
               SPANGLER REPORTING SERVICES, INC.
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 1   other experts for the defense in this case?
 2            A.   No, I don't.
 3            Q.   So you've not been made aware of Dr.
 4   Barter, a GYN oncologist involved in this case?
 5            A.   I think Dirk just mentioned his name
 6   for the first time to me today, yes.
 7            Q.   And that's the first time that you
 8   would have been aware of his name after reviewing
 9   all of the material, including Dr. McLellan's
10   deposition?
11            A.   Yes.
12            Q.   Did you make any notes when you read
13   Dr. McLellan's deposition?
14            A.   I did.
15            Q.   And are those on those two pages, or
16   are they someplace else?
17            A.   That's one of the two pages.
18            Q.   So the two pages, if we were to
19   spend time talking about them, they have to do
20   with Dr. McLellan's opinion?
21            A.   Dr. McLellan's opinions, and then my
22   summary of the case, of the original records.
23            Q.   Okay.  Have you reviewed the actual
24   ultrasounds that were taken in this case?
               SPANGLER REPORTING SERVICES, INC.
0020
 1            A.   Just the reports.
 2            Q.   Have you reviewed the results of the
 3   endometrial biopsy?
 4            A.   Yes.
 5            Q.   Did you -- you read the report or
 6   did you actually see any slides?
 7            A.   No, I just read the report.
 8            Q.   Okay.  Other than what's in your
 9   report and what we've talked about, as far as this
10   article, Dr. McLellan's report, his deposition,
11   Dr. Young's deposition received last night, and
12   the depositions that you received from the Kaiser
13   doctors after your reports, is there anything else
14   other than cover letters that would have been
15   exchanged, enclosed please find, is there anything
16   else that you have in front of you that we haven't
17   at least itemized?
18            A.   I think -- I guess it goes without
19   saying I've got her records from -- I guess it
20   would be the hospital or the clinic.
21            Q.   Okay.  Now, in your report you had
22   referenced all records from Ohio Permanente
23   Medical Group pertaining to Lillian Dailey.  In
24   your report you don't reference anything about the
               SPANGLER REPORTING SERVICES, INC.
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 1   Cleveland Clinic records.  Did you not have them
 2   when you wrote your report?
 3            A.   I probably lumped it all together.
 4            Q.   In fairness to you, then, is it
 5   reasonable to say that, even though you didn't
 6   reference the Cleveland Clinic records, you most
 7   likely had them when you wrote your report?
 8            A.   Yes, because I think they all came
 9   in one large folder.
10            Q.   Okay.  Anything else that you had at
11   the time of your report or anything that you've
12   received since the report that we haven't
13   outlined?
14            A.   Not to my knowledge.
15            Q.   Great, thank you.
16                 Do you know any of the experts in
17   this case?  You mentioned that you heard for the
18   very first time talking with Dirk the name of Dr.
19   Barter; do you know who he is?
20            A.   I don't.
21            Q.   Do you know Dr. McLellan?
22            A.   No, I don't.
23            Q.   Do you know anything about him by
24   way of reputation?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   No.
 2            Q.   Do you know Dr. Young?
 3            A.   No.
 4            Q.   Do you know anything about him by
 5   way of reputation?
 6            A.   No.
 7            Q.   Doctor, the report of August 27,
 8   2008, does this contain a summary of the opinions
 9   that you hold in this case?
10            A.   Yes.
11            Q.   And do you -- you hold to those
12   opinions that you expressed back in August of
13   2008?
14            A.   Yes.
15            Q.   Have your opinions changed in any
16   respect since writing the report and reviewing the
17   additional material that you received, sir?
18            A.   No.
19            Q.   Your opinion -- at least one of the
20   opinions, and we're going to go through all of
21   them, but I'm just centering in on one right now,
22   and that is -- and I'll even try to reference
23   where it is, I think it's on page 2, the third
24   complete paragraph.
               SPANGLER REPORTING SERVICES, INC.
0023
 1            A.   Yes.
 2            Q.   Where you state, and I'm taking a
 3   portion of that sentence.  Where you state "At no
 4   time was there a breach in the standard of care
 5   rendered to this patient."
 6                 Is it still your opinion that
 7   throughout the entire course of treatment that's
 8   in question from November of '04 up until the time
 9   that the diagnosis was made, is it still your
10   opinion that all of the care complied with the
11   standard of care by the caregivers at Kaiser?
12            A.   Yes.
13            Q.   No question in terms of any aspect
14   of the care being below what you would consider to
15   be accepted standard?
16            A.   There's no change, in my opinion.
17            Q.   And as you look at the case from
18   November of 2004 --
19                 By the way, who was it that saw this
20   patient in November of 2004?
21            A.   I believe it was a nurse
22   practitioner.
23            Q.   Do you recall her name?
24            A.   No, I don't.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   Do you have -- I know that you
 2   referenced a number of depositions in your report
 3   of August 27th.  Can you tell me the names of the
 4   individuals that you received depositions from --
 5   from Kaiser after August -- after your August 27th
 6   report?
 7            A.   I guess it would be the same ones I
 8   have here, Verghese, Grayson, Shuffer, Gibbs and
 9   Green.
10            Q.   And you don't have any other
11   depositions?
12            A.   Well, we talked about Dr.
13   McLellan's.
14            Q.   Sure, I'm sorry, sir, other than Dr.
15   McLellan and Dr. Young?
16            A.   Well, let's see here, these are the
17   records.  This is a deposition of Phillip Shuffer,
18   M.D.  this is a deposition of Evelyn James, R.N.
19            Q.   And who is Evelyn James, R.N.?
20            A.   I assume she's a nurse, certified
21   nurse practitioner.
22            Q.   Do you know what aspect of the care
23   she was involved in?
24            A.   I'm assuming that she was the one
               SPANGLER REPORTING SERVICES, INC.
0025
 1   that did the original Well Woman Exam.
 2            Q.   When you say "assuming"; do you know
 3   that based upon your review to be a fact?
 4            A.   I know that there was a nurse
 5   practitioner, I'm not -- the name I'm not sure
 6   makes relevance, but I know it was a nurse
 7   practitioner that saw her in November.
 8            Q.   But as you sit here right now -- I'm
 9   not trying to play games with words -- but as you
10   sit here right now, this Evelyn James, the nurse
11   practitioner, you're just not certain whether this
12   is the one that saw her in November?
13            A.   I'm not.
14            Q.   Okay.  Please continue, sir.
15            A.   Let's see, Melanie Gibbs, and that
16   pretty much does it.
17            Q.   Do you know, based upon your review
18   or recollection?
19            A.   Excuse me, Albert Green, also.
20            Q.   Okay.  And I think that if we look
21   at your report of August 27, the only deposition
22   from Kaiser that was not identified in your report
23   is that of Evelyn James, I think the others in the
24   second complete paragraph on the first page you
               SPANGLER REPORTING SERVICES, INC.
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 1   indicated you --
 2            A.   Correct.
 3            Q.   -- you had at the time you prepared
 4   the report?
 5            A.   Correct.
 6            Q.   And again, just -- I don't mean to
 7   beat a dead horse with a stick, but the Evelyn
 8   James from Kaiser would be the only additional
 9   deposition that you received after report other
10   than Dr. McLellan's deposition and Dr. Young's
11   deposition?
12            A.   Correct.
13            Q.   Great.  Thank you, sir.
14                  MR. MISHKIND:  So far are we doing
15   okay in terms of transmission?
16                  THE COURT REPORTER:  You're doing
17   great, thank you.
18                  MR. MISHKIND:  Thank you very much,
19   ma'am.
20   BY MR. MISHKIND:
21            Q.   So the care that Evelyn -- I'm
22   sorry.
23                 The care that Lillian received at
24   Kaiser from November up until the time of the
               SPANGLER REPORTING SERVICES, INC.
0027
 1   diagnosis, is this the same type of care that you
 2   would expect would be received if Lillian had been
 3   a patient of yours?
 4                  MR. RIEMENSCHNEIDER:  Objection.
 5                 Go ahead.
 6            A.   Yes.
 7            Q.   No aspect of the care in terms of
 8   testing, examination, or follow-up would have been
 9   any different than what happened to Kaiser?
10            A.   Well, my understanding is is that
11   she was supposed to make an appointment with a
12   gynecologist which she failed to do.
13            Q.   Okay.  And tell me where you get
14   that evidence.
15            A.   I'm sure it's someplace either in
16   the deposition or the records.
17            Q.   Well, Doctor, understand today is my
18   opportunity to find out where -- what evidence
19   you're relying upon to make a statement that she
20   failed to schedule an appointment that she was
21   supposed to, and that's why I'm asking you, as you
22   sit here giving your deposition, on what are you
23   basing that statement that she failed to make an
24   appointment that she was supposed to make?
               SPANGLER REPORTING SERVICES, INC.
0028
 1            A.   Because she never came in.
 2            Q.   Well, but where is -- where is there
 3   an indication that she was told to make an
 4   appointment?
 5            A.   I'm sure it's someplace in the
 6   deposition or the records.
 7            Q.   Oh.  Can you tell me whether --
 8   let's just concentrate on the record.  Is there
 9   anything in the record that you reviewed that
10   would indicate that she was scheduled to make an
11   appointment and she didn't?
12            A.   My understanding is the nurse
13   practitioner told her to make an appointment with
14   the gynecologist, the patient never made that
15   appointment or showed up.  And that's just
16   evidence of the records, because we don't have any
17   records of Lillian until she comes in in May.
18            Q.   Doctor, tell me what your
19   understanding is of the system at Kaiser in terms
20   of scheduling appointments and scheduling tests
21   such as ultrasounds?
22            A.   I'm assuming that the nurse
23   practitioner probably ordered the ultrasound and
24   I'm assuming she told the patient to make an
               SPANGLER REPORTING SERVICES, INC.
0029
 1   appointment with a gynecologist, and that's all I
 2   know.
 3            Q.   When you say -- very obscure when
 4   you say you're assuming.
 5            A.   Because that's what's in the
 6   records.
 7            Q.   Fair enough.  I just want to make
 8   sure that when you say you're assuming that you're
 9   not speculating, this is based upon your review?
10            A.   Correct.
11            Q.   Now, in terms of follow-up, if
12   there's a note in the record that a patient is
13   supposed to schedule an appointment, do you know
14   what system Kaiser had to follow up to make sure
15   that that appointment was scheduled or kept?
16            A.   I have no idea what their system is.
17            Q.   Do you know how many times Evelyn --
18   I'm sorry, Lillian was seen after November by
19   other practitioners at Kaiser before she was seen
20   in May?
21            A.   I don't recall.
22            Q.   And would you expect that, if
23   someone had the chart when she was seen between
24   November and May, and the notation about a
               SPANGLER REPORTING SERVICES, INC.
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 1   follow-up appointment had been in front of that
 2   particular physician, that there would have been
 3   some discussion as to whether the patient
 4   scheduled an appointment or why the patient didn't
 5   schedule an appointment?
 6                  MR. RIEMENSCHNEIDER:  Objection.
 7   Go ahead.
 8            A.   Well, I would -- I don't know if
 9   that -- there was a statement made to that effect.
10   I think if I saw it on there I think I would say
11   did you make your appointment with the
12   gynecologist?
13            Q.   And that would be a reasonable and
14   prudent thing to do, correct?
15                  MR. RIEMENSCHNEIDER:  Objection.
16            A.   Well, it depends on who I'm seeing.
17   And if I'm there for upper respiratory, then I
18   don't think those doctors are too concerned about
19   her ultrasound.
20            Q.   Okay.  What about the -- well, let
21   me ask you this:
22                 Do you believe, assuming that the
23   patient was told to schedule an appointment, and
24   assuming that she didn't schedule an appointment,
               SPANGLER REPORTING SERVICES, INC.
0031
 1   do you believe that the patient -- that that would
 2   have altered the outcome in this case?
 3            A.   No.
 4            Q.   Okay.  Do you know what kind of --
 5   because you -- Well, strike that.
 6                 Because you've read the various
 7   depositions, you know when the patient was seen by
 8   Dr. Grayson -- First of all, what type of
 9   physician Dr. Grayson is.
10            A.   Offhand I have no idea.
11            Q.   Do you know when she was seen by Dr.
12   Grayson?
13            A.   Offhand I have no idea.
14            Q.   Do you know when you look at the
15   ultrasound --
16                 Do you have copies of the
17   ultrasounds?
18            A.   I have the reports, that's all.
19            Q.   If you would take a look at the
20   first ultrasound from November of '04?
21            A.   Yes.
22            Q.   If you could look at who the
23   ordering physician is?
24            A.   I just have notes on that, I don't
               SPANGLER REPORTING SERVICES, INC.
0032
 1   have the ordering physician.
 2            Q.   I'm sorry?
 3            A.   I just have notes of it, I don't
 4   have the actual copy in front of me, but I'll take
 5   your word for it.
 6            Q.   If it says it was ordered by
 7   Patricia Grayson, what responsibility is there for
 8   an ordering physician that receives an ultrasound
 9   on a patient that is designated as being abnormal?
10   What duty or responsibility is there in terms of a
11   follow-up?
12            A.   Well, abnormal, the fact that
13   they're fibroids, I'm not going to get too excited
14   about that as far as that ultrasound report.  I'm
15   not feeling like I'm missing anything.  And
16   apparently she looked at the records and she was
17   told to make an appointment.
18            Q.   But you go back to that, other than
19   the notes in the record, do you see any evidence
20   that an appointment was scheduled by the
21   scheduling department for Lillian and she failed
22   to keep the appointment?
23            A.   I have no idea.
24            Q.   Well, as you sit here now, do you
               SPANGLER REPORTING SERVICES, INC.
0033
 1   know of any evidence that there was an appointment
 2   scheduled?
 3            A.   I have no idea.  I was under the
 4   impression that the patient was supposed to make
 5   an appointment.
 6            Q.   As far as the ultrasound, do you
 7   know how the ultrasound got scheduled, the
 8   November ultrasound that we're referring to?
 9            A.   I'm assuming that Nurse Evans or
10   Grayson or whatever her name was --
11            Q.   I guess what I'm trying to
12   understand is:  How did the ultrasound get
13   scheduled and this follow-up visit not get
14   scheduled?
15            A.   I have no idea.  I'm assuming the
16   patient wasn't having any problems and didn't
17   think it was necessary once she found out it was
18   just fibroids.
19            Q.   Well, Doctor, let me ask you:
20                 What evidence at all do you know of
21   or that you've seen, based upon your careful
22   review in this case, that the patient was notified
23   by anyone at Kaiser of the results of the
24   ultrasound?
               SPANGLER REPORTING SERVICES, INC.
0034
 1            A.   I don't think it's their
 2   responsibility.  If I have a normal ultrasound, if
 3   I have fibroids, which is a benign condition, I
 4   would not necessarily call the patient and give
 5   her those results.
 6            Q.   Doctor, the reason I ask that is
 7   because a moment ago you said, I assume that she
 8   was told that it was -- that it was normal or that
 9   it was fibroids and because she wasn't having any
10   problems she didn't schedule any appointments.  My
11   question to you is:
12                 Do you see any evidence that the
13   results, normal or abnormal were ever communicated
14   to Lillian before she came back in May?
15            A.   I have no recollection.
16            Q.   Would you agree that a patient has
17   the right to know the results of tests that are
18   performed on them?
19            A.   If they're significant, yes.
20            Q.   And if a result is abnormal and may
21   be reflective of a serious condition, can we agree
22   that the physician or the health care provider has
23   a duty to notify the patient?
24                  MR. RIEMENSCHNEIDER:  Objection.
               SPANGLER REPORTING SERVICES, INC.
0035
 1                 Go ahead.
 2            A.   Yes, if it's a serious condition.
 3            Q.   All right.  Doctor, I want to shift
 4   away from the case for a few minutes and ask you
 5   some questions about your experience as an expert
 6   witness and then we'll get back into the specifics
 7   of Lillian's case.
 8            A.   Okay.
 9            Q.   Is that okay?
10            A.   Sure.
11            Q.   Thank you.
12                 Have you ever testified in Federal
13   Court?
14            A.   Federal Court, no.
15            Q.   You have not then been required to
16   prepare what's known as a Rule 26 Disclosure
17   Statement?
18            A.   I have not.
19            Q.   Have you ever prepared a list of the
20   names of the cases and lawyers that you've worked
21   with over the past 20 or so years?
22            A.   Never had to do that.
23            Q.   Okay.  You are not Board Certified
24   in GYN Oncology, are you?
               SPANGLER REPORTING SERVICES, INC.
0036
 1            A.   Correct.
 2            Q.   And if I -- looking at your CV, I
 3   don't believe that you have any special training
 4   or certification in the area of GYN oncology, do
 5   you?
 6            A.   Correct.
 7            Q.   No residency or fellowship?
 8            A.   Correct.
 9            Q.   And you wouldn't hold yourself out
10   as an expert in the area of gynecological
11   oncology, would you?
12            A.   Correct.
13            Q.   Would you agree that the earlier
14   Lillian's cancer had been diagnosed, assuming
15   hypothetically it should have been diagnosed
16   sooner, would you agree that the earlier it was
17   diagnosed, the greater the chances of survival
18   would have been?
19            A.   That's a very, very broad question,
20   but as a general rule, any cancer that is
21   diagnosed earlier will probably have a better
22   prognosis.
23            Q.   Now, as far as this being
24   leiomyosarcoma or a high grade endometrial
               SPANGLER REPORTING SERVICES, INC.
0037
 1   sarcoma, do you know whether the prognosis for a
 2   stage 1 leiomyosarcoma compared to a high grade
 3   endometrial sarcoma is any different?
 4            A.   I think the prognosis is
 5   obviously -- usually related to the stage of the
 6   disease, so the higher the stage, the worse
 7   prognosis.
 8            Q.   That wasn't really my question.
 9   There are different types of uterine sarcomas,
10   correct?
11            A.   Yes.
12            Q.   And in terms of the type of uterine
13   sarcoma, whether it be a carcinosarcoma or
14   leiomyosarcoma or a high grade endometrial
15   sarcoma, any of those uterine sarcomas, if a
16   patient is fortunate enough to have it diagnosed
17   at stage 1, do you know whether there's any
18   difference in terms of the prognosis for cure in
19   the five-year survival for any form of uterine
20   sarcoma diagnosed at stage 1?
21            A.   I believe the endometrial carcinoma
22   sarcoma that she had, the aggressive type,
23   wouldn't have made any difference at what stage,
24   she would have eventually died of the disease.
               SPANGLER REPORTING SERVICES, INC.
0038
 1            Q.   And, Doctor, are you basing that on
 2   what Dr. Young had to say?
 3            A.   Sounds like a pretty aggressive
 4   tumor.
 5            Q.   You didn't -- my question was:  Were
 6   you basing that on what you've seen from Dr.
 7   Young's deposition?
 8            A.   Yes.
 9            Q.   Okay.  You're not an expert in the
10   area of GYN pathology or GYN oncology, are you?
11            A.   We've established that.
12            Q.   Okay.  So as far as a stage 1
13   disease on uterine sarcomas, can we agree that by
14   definition a stage 1 uterine sarcoma is where the
15   disease is confined to the uterine corpus?
16                  MR. RIEMENSCHNEIDER:  Objection.
17                 Go ahead.
18            A.   I believe so.
19            Q.   And in terms of stage 2, where has
20   the disease evolved or where has it spread outside
21   of the corpus to be a stage 2?
22            A.   The other pelvic organs.
23            Q.   That's your definition of stage 2?
24            A.   Yes.
               SPANGLER REPORTING SERVICES, INC.
0039
 1            Q.   Okay.  Then what's your definition
 2   of stage 3?
 3            A.   Outside the pelvis.
 4            Q.   And what's your definition of stage
 5   4?
 6            A.   Distant metastasis.
 7            Q.   And, Doctor, you believe that the
 8   stages you just gave to me would be supported by
 9   the medical literature?
10            A.   To the best of my knowledge.
11            Q.   Okay.  It looks, in reviewing your
12   reports, that the opinions that you intend to
13   provide at the time of the trial of this matter
14   are confined to standard of care, am I correct?
15            A.   Yes.
16            Q.   So even though you said it looks
17   like it was a fairly aggressive cancer and it
18   wouldn't have made a difference, as an expert in
19   this case, do you intend to provide testimony on
20   causation?
21            A.   I defer to the pathologist.
22            Q.   Okay.  And certainly GYN oncologists
23   would also be qualified to provide such opinion on
24   the staging as well as the likelihood of survival;
               SPANGLER REPORTING SERVICES, INC.
0040
 1   can we agree upon that?
 2            A.   Yes.
 3            Q.   And you would defer to those people,
 4   because that's not your area of expertise?
 5            A.   Yes.
 6            Q.   Okay.  Doctor, have you had your
 7   deposition taken more recently than September of
 8   2008?
 9            A.   Hmm, I believe there was a
10   deposition in January of this year.
11            Q.   You have been doing this type of
12   work over this 25, 26 years now?
13            A.   Probably, yes.
14            Q.   In terms of the percentage of the
15   cases where you're retained, can you tell me what
16   your testimony is as to the percentage defense
17   versus percentage plaintiff.
18            A.   Seventy-five percent defense,
19   twenty-five percent plaintiff.
20            Q.   Has there been a time where the
21   percentage that you were doing defense was at or
22   around 90 percent?
23            A.   I don't believe so.
24            Q.   In the early 2000s, you don't
               SPANGLER REPORTING SERVICES, INC.
0041
 1   believe the percentage was closer to 90 percent?
 2            A.   I couldn't tell you.
 3            Q.   For purposes of trial, if you are at
 4   trial for a full day, is the charge still $9,000?
 5            A.   Yes.
 6            Q.   Plus expenses?
 7            A.   Yes.
 8            Q.   How many times, sir, have you
 9   actually testified in a courtroom?
10            A.   Probably five.
11            Q.   On how many occasions have you been
12   qualified by a court to give expert testimony?
13            A.   I don't understand the question.
14            Q.   You don't recall ever being asked
15   that question before?
16            A.   I'm not sure what you mean by
17   "qualified."
18            Q.   You wouldn't give an answer to a
19   question unless you understood the question,
20   right?
21            A.   I -- hopefully not.
22            Q.   Okay.  So when I ask you how many
23   occasions you've been qualified by a court to give
24   expert testimony, you don't understand what that
               SPANGLER REPORTING SERVICES, INC.
0042
 1   means?
 2            A.   I have no idea.  I've never been
 3   disqualified, if that's a better answer.
 4            Q.   Your testimony is testifying in a
 5   courtroom in a medical malpractice case you
 6   testified five times?
 7            A.   Probably, yes.
 8            Q.   On how many occasions have you had
 9   your deposition taken over the course of your
10   career serving as a legal expert?
11            A.   Twenty-five.
12            Q.   As a medical expert, I should say.
13            A.   Twenty-five, thirty-five times at
14   least.
15            Q.   And on how many occasions have you
16   been retained as an expert to review a case during
17   the course of your career?
18            A.   Probably at least twice that amount.
19            Q.   In the year 2008 that we just
20   recently completed, how many times were you
21   deposed?
22            A.   Probably twice.
23            Q.   Are you able to tell me in 2007
24   whether you were deposed more than twice?
               SPANGLER REPORTING SERVICES, INC.
0043
 1            A.   I have no idea.
 2            Q.   In 2008, is this now your second
 3   deposition?
 4                  MR. RIEMENSCHNEIDER:  2009?
 5            Q.   I'm sorry.  2009.  Time flies when
 6   you're having fun.
 7            A.   I believe two, yes.
 8            Q.   This is the second one, sir?
 9            A.   I believe so.
10            Q.   And on average what is your
11   testimony as to how many cases you review on a
12   yearly basis?
13            A.   I probably review probably 20 of
14   which -- half of which I won't take.
15            Q.   Of the 20, you wind up accepting
16   roughly ten cases to participate as an expert?
17            A.   Yeah.  That's probably a little on
18   the high side, but let's say eight to ten.
19            Q.   And, Doctor, have you ever been
20   involved in a case that you accepted that to your
21   knowledge the case was lost?
22            A.   No.
23            Q.   Do you or have you ever advertised?
24            A.   Yes.
               SPANGLER REPORTING SERVICES, INC.
0044
 1            Q.   Do you continue to advertise?
 2            A.   Yes.
 3            Q.   Okay.  Let's talk about that.  Do
 4   you still advertise with JurisPro?
 5            A.   Yes.
 6            Q.   Do you still advertise with
 7   expertwitnesses.com?
 8            A.   I'm not sure.  SEAK is the only
 9   other one I'm aware of, S E A K.
10            Q.   You're not familiar with advertising
11   with expertwitnesses.com?
12            A.   You know, I get solicitation from
13   those, you know, a lot of the places.  I couldn't
14   tell you.  My understandings is that there's just
15   two.
16            Q.   And your understanding is it's
17   JurisPro and SEAK, S E A K?
18            A.   Correct.
19            Q.   You have a website, correct?
20            A.   Yes.
21            Q.   Tell me about your consultation that
22   you do for Gynecare.
23            A.   Gynecare.
24            Q.   I'm sorry, G Y N E C A R E.
               SPANGLER REPORTING SERVICES, INC.
0045
 1            A.   Gynecare is a branch of Ethicon
 2   Endo-Surgery.  They have a device that I have been
 3   a consultant for called the Thermachoice Balloon.
 4            Q.   How long have you been a consultant
 5   for them, sir?
 6            A.   Ten years.
 7            Q.   How about NovaCare?  Tell me about
 8   your position as a consultant for them.
 9            A.   Another device company, been sold,
10   they're now with Hologic, and I've been with them
11   since the inception of the company, so that would
12   be probably seven years.
13            Q.   Tell me about your work for
14   Prudential Insurance Company.
15            A.   As an advisor.
16            Q.   What does that mean?
17            A.   Review records.
18            Q.   Does it have to do with medical
19   malpractice issues?
20            A.   No, no, no.
21            Q.   Just utilization and reasonableness
22   of care?
23            A.   Correct.
24            Q.   What about your work for Community
               SPANGLER REPORTING SERVICES, INC.
0046
 1   Mutual of Southwest Ohio?
 2            A.   Exact same thing.
 3            Q.   Tell me about your work as an expert
 4   witness for the OB-GYN State Medical Board?
 5            A.   Actually it's the State Medical
 6   Board of Ohio.  I'm given records to -- that may
 7   or may not have anything to do with OB-GYN.
 8   Sometimes they're ethical issues, sometimes
 9   they're prescribing issues, it's just a matter of
10   reviewing the records to see if there had been any
11   legal problems.
12            Q.   Do you still do that work?
13            A.   Probably once every two years.
14            Q.   You speak -- I'm looking at your CV.
15   It says "Speaks nationally on topics related to
16   gynecological surgery"?
17            A.   Yes.
18            Q.   Do you speak nationally on topics
19   related to gynecological oncology?
20            A.   No.
21            Q.   Your area of interest, is it more in
22   the laparoscopic surgical arena?
23            A.   Laparoscopic and hysteroscopic, yes.
24            Q.   What percentage would you say your
               SPANGLER REPORTING SERVICES, INC.
0047
 1   practice is laparoscopic versus -- as well as
 2   hysteroscopic?
 3            A.   Surgery probably makes up 25, 30
 4   percent of my practice.
 5            Q.   Do you or have you in your practice
 6   diagnosed a patient with uterine sarcoma?
 7            A.   Only after the hysterectomy.
 8            Q.   Have you referred patients that you
 9   suspected had uterine sarcoma or uterine cancer to
10   other physicians?
11            A.   If I have a diagnosis of uterine
12   cancer I would send them to an oncologist, yes.
13            Q.   In terms of the surgical and medical
14   management of a patient with uterine cancer,
15   including but not limited to uterine sarcoma, that
16   would be something that you would refer to a
17   specialist, a GYN oncologist?
18            A.   If we're talking about endometrial
19   cancer, if we're talking about an early stage in a
20   well differentiated carcinoma, I would probably do
21   that myself.  But all other advance cancers, I
22   would certainly refer.
23            Q.   Do you know offhand what the
24   five-year survival rate is in an early stage
               SPANGLER REPORTING SERVICES, INC.
0048
 1   uterine sarcoma of the type that Lillian had?
 2            A.   I believe I've seen 50 percent in
 3   stage 1.
 4            Q.   Okay.  Sir, I ask this of all
 5   experts, so I don't mean any disrespect by this,
 6   but have you ever been a party to any medical
 7   negligence case as a defendant?
 8                  MR. RIEMENSCHNEIDER:  Objection.
 9                 Go ahead.
10            A.   No.
11            Q.   With the same qualifier that I just
12   made a moment ago, have you ever had your
13   privileges suspended or revoked?
14            A.   No.
15            Q.   Have you ever been the subject of
16   any disciplinary action before any state medical
17   board?
18            A.   No.
19            Q.   Have you ever applied for privileges
20   to a hospital and been denied?
21            A.   No.
22            Q.   In terms of the cases that you are
23   involved in, can you tell me when it was that you
24   last testified either in deposition or at trial
               SPANGLER REPORTING SERVICES, INC.
0049
 1   for a plaintiff's attorney?
 2            A.   Probably last summer.
 3            Q.   Would that be summer of '08 or
 4   summer of '07?
 5            A.   Probably '0 -- I'm going to say '07.
 6            Q.   Where was that case, sir?
 7            A.   Dayton, Ohio.
 8            Q.   Who was the plaintiff's attorney?
 9            A.   Greg Gibson.
10            Q.   You've worked with Greg on a number
11   of cases, haven't you?
12            A.   He used to be with a defense team in
13   Dayton.  I've done probably -- probably reviewed,
14   oh, at least a half a dozen cases of which maybe
15   two or three I thought had merit.
16            Q.   Back in the early 2000s you remember
17   testifying for Mr. Gibson in the case of Michael
18   Johnson versus Donald Johnson, M.D.?
19            A.   Probably, but you could review my --
20   or refresh my memory.
21            Q.   The only reason I say it is because
22   it was somewhat unusual in that it was Johnson
23   versus Johnson.  And Donald B. Johnson was the
24   defendant in Clark County.  None of that
               SPANGLER REPORTING SERVICES, INC.
0050
 1   necessarily causes a light to go off?
 2            A.   No.
 3            Q.   Okay.  Fair enough.
 4                 Besides Mr. Gibson, can you give me
 5   the names of any other plaintiff attorneys in the
 6   last five years that you have been retained by and
 7   either given deposition testimony or trial
 8   testimony?
 9            A.   Another fellow from Dayton, I can't
10   think of his first -- oh, Doug Hess, H E S S.
11            Q.   Of the cases that you currently
12   have, are any of them plaintiff's cases?
13            A.   The one with Mr. Hess.
14            Q.   Although Mr. Hess's case is still
15   current?
16            A.   Correct.
17            Q.   The other -- I'm sorry, did you say
18   you had about 10 open cases?
19            A.   Oh, probably six, maybe.
20            Q.   Okay.  So the other roughly five
21   cases would be defense cases?
22            A.   I've got another -- it would be five
23   and two, yeah.
24            Q.   Two plaintiffs cases and five
               SPANGLER REPORTING SERVICES, INC.
0051
 1   defense cases?
 2            A.   That would be about right.
 3            Q.   In a patient that's 55-years old,
 4   that is African American, that has abnormal
 5   uterine bleeding, that is diabetic, what do you --
 6   what signs and symptoms do you look for in your
 7   patients to suspect some form of uterine cancer?
 8                  MR. RIEMENSCHNEIDER:  Just note an
 9   objection to the vagueness and the multiple types
10   of uterine cancers.
11            Q.   Go ahead, Doctor.
12            A.   Well, I think you have to, in any
13   age group, if they have abnormal bleeding, you
14   have to at least have that on the radar as a
15   possibility of, in particular, endometrial cancer.
16            Q.   The fact that uterine sarcomas --
17   strike that.
18                 Uterine sarcomas are rare, aren't
19   they?
20            A.   Exceedingly rare.
21            Q.   The fact that they're exceedingly
22   rare, that isn't an excuse in the event that the
23   signs and symptoms should have led to a diagnosis
24   if certain tests had been ordered, can we agree
               SPANGLER REPORTING SERVICES, INC.
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 1   upon that?
 2            A.   No.
 3            Q.   I'm sorry, Doctor?
 4            A.   No.
 5            Q.   Your answer was no?
 6            A.   Yes, that's my answer.
 7            Q.   Okay.  I'm sorry, I didn't hear the
 8   answer.  The fact that something is rare, is that
 9   an excuse for missing a diagnosis?
10            A.   No.
11            Q.   Would you agree that in gynecology,
12   as in many branches of medicine, you have to have
13   a differential?
14            A.   Yes.
15            Q.   And often times certain things that
16   are higher on the differential are more common
17   causes for a patient's symptoms?
18            A.   Yes.
19            Q.   And can we agree that in gynecology,
20   when you're acting reasonably and prudent, that
21   there are times where the item, which is less
22   common on the differential ultimately proves to be
23   the diagnosis?
24            A.   Sure, that could happen.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   Often times in gynecology you can
 2   make what's known as an incidental diagnosis while
 3   you're working up a patient for another suspected
 4   condition, correct?
 5            A.   You'll have to repeat that question.
 6            Q.   Sure.  When you're treating a
 7   patient as a gynecologist and working them up for
 8   potential causes for their GYN issue, can we agree
 9   that it's not infrequent that you come across an
10   incidental finding that wasn't high up on your
11   differential when you first started working up the
12   patient?
13            A.   If you've done a good differential
14   it should be very, very infrequent.
15            Q.   I'm sorry, sir?
16            A.   If you'd done a very good
17   differential diagnosis it should be very
18   infrequent that that happens.
19            Q.   Okay.  In the event that you do find
20   something that leads to an uncommon diagnosis,
21   would you agree that there's a responsibility on
22   the part of the gynecologist to recognize the
23   condition, even though it's rare, and refer that
24   patient to the appropriate specialist?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   No.  Your questions are quite
 2   confusing and presumptive, I'm not sure where
 3   you're trying to go.  If you're trying to say
 4   because she had a sarcoma that we should have made
 5   that our differential diagnosis, I disagree with
 6   that.
 7            Q.   If certain tests had been done,
 8   certain interventions had been done and sarcoma
 9   had been diagnosed earlier, would you agree that,
10   even though it's a rare condition, that wouldn't
11   excuse hypothetically the GYN from referring the
12   patient to the appropriate specialist?
13                  MR. RIEMENSCHNEIDER:  Objection.
14            A.   I have never in 30 years of medicine
15   ever made a diagnosis of uterine sarcoma prior to
16   surgery ever.
17            Q.   Okay.  Is hysterectomy the way that
18   the diagnosis of uterine sarcoma is made?
19            A.   Yes.
20            Q.   So, again, hypothetically, if
21   hysterectomy is done, an uterine sarcoma is found,
22   that is frequently, at least based upon your
23   knowledge, training, experience, an uncommon
24   diagnosis?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   Yes.
 2            Q.   But even though it's uncommon, that
 3   an hysterectomy is done and uterine sarcoma is
 4   diagnosed, even though you were working the
 5   patient up for some other GYN illness or disease,
 6   is there a duty or a responsibility to refer that
 7   patient for specialized care and treatment?
 8            A.   Yes.
 9            Q.   Before we go back to the opinions
10   that you have in this case, I want to just ask you
11   a couple more questions relative to your
12   medical/legal work.  First, your report dated in
13   August of '08, when were you first contacted on
14   this case?
15            A.   Probably in the spring of last year.
16            Q.   Spring of '08, sir?
17            A.   That would be a pretty good guess,
18   yes.
19            Q.   How did Mr. Riemenschneider obtain
20   your name?
21            A.   I had cases with Dirk before when he
22   was down here in Cincinnati.
23            Q.   How many?
24            A.   Maybe two.  Years ago.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   Is it your testimony that this would
 2   be the third case that you served as an expert?
 3            A.   Probably.
 4            Q.   Have you ever testified up here in
 5   Northeastern Ohio?
 6            A.   Not to my knowledge.
 7            Q.   And when I say "Northeast Ohio," I'm
 8   talking about Cleveland, Akron.
 9            A.   Right.
10            Q.   Have you ever been involved in a
11   case as an expert on either side where there was
12   an issue about the timeliness or lack thereof
13   concerning uterine cancer?
14            A.   Yes, I have.
15            Q.   How many, sir?
16            A.   Just one.
17            Q.   Was that one for Mr. Gibson?
18            A.   No.  That was a defense case.
19            Q.   When was that, sir?
20            A.   2000.
21            Q.   I'm sorry?
22            A.   The year 2000.
23            Q.   That was down in Dayton?
24            A.   That was in Dayton, yes.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   What was the nature of the cancer?
 2            A.   Sarcoma.
 3            Q.   Uterine sarcoma?
 4            A.   Yes.
 5            Q.   In that case did you -- was your
 6   testimony limited to standard of care?
 7            A.   Yes.
 8            Q.   You didn't provide any causation?
 9            A.   Correct.
10            Q.   Same as you're doing in this case?
11            A.   Yes.
12            Q.   Do you recall the type of uterine
13   sarcoma?
14            A.   I don't.
15            Q.   What was the name of that case?
16            A.   Hmm, I have no idea.  It was
17   Foreman, Freund & Freeze.  The attorney was Susan
18   Blazic Miller.
19            Q.   Okay.  Did the patient die in that
20   case?
21            A.   Not at the time of trial.
22            Q.   I take it from your answer that you
23   learned subsequent to the trial that the patient
24   died?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   I don't know.
 2            Q.   Other than the article that you're
 3   going to make a copy of for me that I think we
 4   agreed would be Exhibit 1, is there any other
 5   literature that you intend to rely on to reference
 6   or support any of the opinions that you hold in
 7   this case?
 8            A.   No.
 9            Q.   Doctor, I know that you are -- and I
10   don't mean this in a derogatory sense, but you're
11   an advocate of alternatives to hysterectomy where
12   it's safe and efficacious?
13            A.   Yes.
14            Q.   We can agree, however, that if there
15   was reason to suspect that Lillian had uterine
16   cancer, not limited to sarcoma, but uterine
17   cancer, would there have been any other treatment
18   that would have been efficacious for her short of
19   an hysterectomy?
20                  MR. RIEMENSCHNEIDER:  Objection.
21                 Go ahead.
22            A.   We're saying with a diagnosis of
23   some type of uterine cancer?
24            Q.   Yes, sir.
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   Then there is no other alternative
 2   beside hysterectomy.
 3            Q.   And other than that which you've
 4   learned from Dr. Young by looking at his
 5   deposition, if an hysterectomy hypothetically had
 6   been done in May of 2005, do you know first
 7   whether more likely than not, or do you have an
 8   opinion whether more likely than not her uterine
 9   sarcoma would have been diagnosed?
10            A.   If an hysterectomy was done in you
11   said June of '05?
12            Q.   Well, yes, May or June, but --
13            A.   Okay.  Yeah, I think it would have
14   been diagnosed, yes.
15            Q.   Okay.  As far as the staging of the
16   uterine sarcoma, putting aside the information
17   that you have derived from one of the experts in
18   this case, do you know, based upon your knowledge,
19   training, experience, as to what the stage of her
20   uterine sarcoma would have been at that time?
21            A.   I have no idea.
22            Q.   You're not able to say, are you,
23   that the uterine sarcoma in May or June, if,
24   hypothetically, the patient would have had an
               SPANGLER REPORTING SERVICES, INC.
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 1   hysterectomy, whether or not it would have been
 2   confined to the uterine corpus or right outside of
 3   the uterus?
 4            A.   My opinion is it would have already
 5   been spread.  But there's no way -- you're giving
 6   a hypothetical, and that's all I can do, too.
 7            Q.   There's nothing clinically that
 8   you're aware of in May or June that would have
 9   shown any metastatic disease, either on the
10   ultrasound or on any blood work, or even the
11   endometrial biopsy, that would have been
12   consistent with spread outside the uterus,
13   correct?
14                  MR. RIEMENSCHNEIDER:  Objection.
15                 Go ahead.
16            A.   None of those tests are going to
17   predict metastasis.
18            Q.   And we have nothing prior to the
19   time that the hysterectomy is done to know the
20   degree of metastatic disease, correct?
21                  MR. RIEMENSCHNEIDER:  Objection.
22                 Go ahead.
23            A.   Obviously not.
24            Q.   Doctor, in your practice, when a
               SPANGLER REPORTING SERVICES, INC.
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 1   patient presents that's in their mid-50s that has
 2   abnormal uterine bleeding, and you consider the
 3   patient to be perimenopausal, is it your
 4   responsibility to rule out malignancies?
 5            A.   Yes.
 6            Q.   And can we agree that abnormal
 7   uterine bleeding can only be treated as a benign
 8   condition once a malignancy has been ruled out?
 9            A.   Yes.
10            Q.   I want to talk about Dr. Verghese,
11   one of the doctors that was involved in this case.
12   Do you recall that she saw Lillian in May and June
13   of 2005?
14            A.   Yes.
15                  MR. MISHKIND:  V E R G H E S E, E S
16   E, S as in Sam.  I think it's also reflected --
17   it's improperly reflected in the Doctor's letter,
18   but I think Dirk will confirm that I spelled it
19   correctly, maybe not, I don't know.
20   BY MR. MISHKIND:
21                 In any event, Doctor, you're aware
22   that Dr. Verghese saw Lillian in May and June?
23            A.   Yes.
24            Q.   You have handy the record for the
               SPANGLER REPORTING SERVICES, INC.
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 1   May 4, 2005 visit?
 2            A.   No, I don't.  I just have my notes.
 3                  MR. RIEMENSCHNEIDER:  The record's
 4   here, if you want.
 5                  MR. MISHKIND:  Yeah.  What I want
 6   him to do is just to confirm -- I don't want to
 7   misstate anything in the record -- that when she
 8   was seen, when Lillian was seen on May 4, 2005,
 9   that Dr.  Verghese made a note that she had been
10   complaining of daily bleeding, light and heavy,
11   for four months, and that her last period was
12   April of '04 and previous to that March of '04.
13            A.   Ah, bah, bah.  I see last menstrual
14   period 12/04, correct.
15            Q.   No.  I'm looking at her actual notes
16   "Complaining of daily bleeding, light and heavy"?
17            A.   I've got a different one here.
18            Q.   It would be May 4, '05?
19                  MR. RIEMENSCHNEIDER:  That's the
20   nurse's note.
21            A.   Okay.  I've got you.  Here we are.
22            Q.   Okay.
23            A.   Perimenopausal bleeding, yes.
24            Q.   She's got a number of diagnoses,
               SPANGLER REPORTING SERVICES, INC.
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 1   perimenopausal bleeding?
 2            A.   Yeah.
 3            Q.   She's got a note that says
 4   "endometrial biopsy."  What's that ECC?
 5            A.   Yeah.  Endocervical curettage.
 6            Q.   May 4, 2005.  And that next is
 7   fibrous uterus?
 8            A.   Fibroid uterus, yeah.
 9            Q.   Fibroid uterus, and then gravital,
10   peri 1?
11            A.   Yes.
12            Q.   And then irregular bleeding?
13            A.   Okay.
14            Q.   Those are the diagnoses, correct?
15            A.   Yes.
16            Q.   And then in her history do you see
17   where she marked down -- do you recall whether
18   there was a history that the doctor had obtained
19   from the patient?
20            A.   I would assume so.
21            Q.   Okay.  And was that not, in fact,
22   confirmed, based upon her deposition testimony
23   that this was a history that she obtained from the
24   patient?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   I believe so.
 2            Q.   Okay.  And if I'm reading it
 3   correctly, and certainly as you're looking at
 4   this, can we agree that it says that this is a
 5   55-year old, then skipping to the next line it
 6   says complaining of daily bleeding --
 7                  THE COURT REPORTER:  I'm sorry
 8   Counselor -- Counselor?
 9                  MR. MISHKIND:  Yes, ma'am?
10                  THE COURT REPORTER:  It says that
11   this is a 55-year old --
12            Q.   Then I -- it talks about the
13   gravital 1, peri 1, and I went to the next line.
14   You're with me, Doctor?
15            A.   Yeah, I'm here.
16            Q.   It says "Complaining of daily
17   bleeding, light and heavy"?
18            A.   Yes.
19            Q.   For four months?
20            A.   Yes.
21            Q.   Since December 2004?
22            A.   Yes.
23            Q.   And then it says her last menstrual
24   period was April 2004?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   Yes.
 2            Q.   And then previous to that March of
 3   2004?
 4            A.   Okay.
 5            Q.   Now, as of May 2005, was there any
 6   evidence that what we learned ultimately to be
 7   uterine sarcoma, any evidence clinically or
 8   diagnostically that the uterine sarcoma had spread
 9   outside the uterine walls?
10                  MR. RIEMENSCHNEIDER:  Objection.
11                 Go ahead.
12            A.   I have no evidence.
13            Q.   Now, the fact that Lillian did not
14   complain of any pain in May or June, does that
15   mean, in your opinion, that she did not have
16   uterine sarcoma?
17                  MR. RIEMENSCHNEIDER:  Objection.
18            A.   No.  It just means that she didn't
19   have any pain.
20            Q.   Well, is it necessary to make a
21   diagnosis or to suspect a diagnosis of uterine
22   sarcoma that one has to have pain?
23            A.   Well, it certainly would put it a
24   little bit more on the radar, but I don't think
               SPANGLER REPORTING SERVICES, INC.
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 1   you have to have --
 2                 If we're looking at fibroids, the
 3   question is what kind of symptoms is this patient
 4   having.  Nobody's saying that this patient has
 5   sarcoma.  The diagnosis here is uterine fibroids.
 6   And the fact that she doesn't have pain and the
 7   fact that her blood levels is hematocrit 42, which
 8   means she's not bleeding that heavily, I'd say
 9   it's pretty close to asymptomatic fibroids.
10            Q.   In order to have an index of concern
11   that the patient has uterine sarcoma, do you need
12   to have within the symptom complex a complaint of
13   pain?
14            A.   That usually accompanies it, yes.
15            Q.   Without that, can one confidently
16   rule out uterine sarcoma?
17            A.   No.
18            Q.   Okay.  Now, in your report you
19   indicate that she had -- this is on the second
20   page, sir?
21            A.   Yes.
22            Q.   Last paragraph.  She had two
23   ultrasounds six months apart that were essentially
24   unchanged?
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 1            A.   Yes.
 2            Q.   Now, I have copies of the ultrasound
 3   interpretation which I guess you had also when you
 4   prepared your report?
 5            A.   Yes.
 6            Q.   And can we agree, first of all, that
 7   both reports, in November and then ultimately in
 8   May, both reports are noted on the actual official
 9   report to be abnormal?
10            A.   They're all stating "uterine
11   fibroids," yes.
12            Q.   They say "abnormal" on the report,
13   correct?
14            A.   I don't have the report in front of
15   me.
16            Q.   You accept that as a fact, though?
17            A.   If you say that that's what's there,
18   I'll believe you.
19            Q.   In terms of the measurement, the
20   fibroid, the largest fibroid in November was 5.4
21   centimeters?
22            A.   Yes.
23            Q.   And then the largest fibroid in May
24   was 10.7 centimeters?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   Yes.
 2            Q.   Now, that's nearly doubling in size,
 3   is it not?
 4                  MR. RIEMENSCHNEIDER:  Objection.
 5            A.   Well, that's doubling of one
 6   fibroid, but it's certainly not doubling the
 7   entire uterine mass at all.
 8            Q.   No, I know.  But it is a significant
 9   change in terms of what is viewed to be on
10   ultrasound a fibroid, correct?
11            A.   I would not consider that
12   significant, no.
13            Q.   In six-months period a doubling of a
14   fibroid tumor in a patient who's 55,
15   perimenopausal with abnormal uterine bleeding, a
16   5.4 centimeter to a 10.7 centimeter over a 6-month
17   period, you don't view that as significant?
18            A.   No, I don't.
19            Q.   Can you provide me with any
20   literature at all that would support the
21   contention that that growth over that period of
22   time is not significant?
23            A.   It is most likely a benign fibroid.
24            Q.   How does one know that it is a
               SPANGLER REPORTING SERVICES, INC.
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 1   benign fibroid?
 2            A.   Thirty years medical experience.
 3            Q.   Can you cite me, other than your 30
 4   years of medical experience and 20 years serving
 5   as an expert, can you cite me to any peer reviewed
 6   evidence based literature that would suggest in a
 7   55-year-old patient with abnormal uterine bleeding
 8   that has an increase from November to May of a
 9   fibroid from 5.4 to 10.7 that one can conclude
10   without further intervention that that is a
11   fibroid tumor and not a malignancy?
12                  MR. RIEMENSCHNEIDER:  Objection.
13            A.   You're going to have to give that
14   question again, Howard.
15            Q.   Can you cite me to any peer review
16   literature, anything that your colleagues have
17   written that would support the contention that one
18   can conclude that this is a benign fibroid tumor
19   and not a potential malignancy that needs to be
20   worked up?
21            A.   Actually, the article that I have
22   from Dr. Parker in Los Angeles, that article I
23   think will explain it to you what is considered to
24   be rapid growth.  It has no consideration
               SPANGLER REPORTING SERVICES, INC.
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 1   whatsoever in a perimenopausal woman, and you'll
 2   be getting that article.
 3            Q.   Okay.  Now, your ultra -- your
 4   statement in your report that the two ultrasounds
 5   were essentially unchanged, that's not true, is
 6   it?
 7            A.   Yes, it is true.
 8            Q.   Well, Doctor, not only did the
 9   fibroid go from 5.4 to 10.7, but the measurement
10   of the uterus went from 12.7 by 9.5 by 10.2 in
11   November to 14.8 by 10.9 by 9.7 in May, correct?
12            A.   There's been an enlargement of the
13   uterus, but it's not significant, not in a
14   perimenopausal woman.
15            Q.   And are you suggesting that with
16   negative endometrial biopsy, that you, as a
17   reasonable and prudent gynecologist, can rule out
18   a malignancy that requires surgical intervention?
19            A.   I believe it was your own expert
20   witness that said that the endometrial biopsy
21   picked up two-thirds of malignancies.
22            Q.   Well, let me ask you:
23                 Regardless of whether that's an
24   accurate or inaccurate statement with a negative
               SPANGLER REPORTING SERVICES, INC.
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 1   endometrial biopsy with the growth, whether you
 2   describe it as unchanged or not, we have an
 3   increase in size of a fibroid tumor; the
 4   dimensions of the uterus, I've described them
 5   accurately, have I not?
 6            A.   Pretty good.
 7            Q.   And is it your testimony that
 8   hysterectomy was not indicated as of May or June
 9   of 2005?
10            A.   Absolutely not indicated.
11            Q.   Are you suggesting that you would
12   have treated this patient with the initiation of
13   hormone therapy like what Dr. Verghese gave?
14            A.   That's progesterone Provera therapy
15   and, yes, I would have done exactly the same
16   thing.
17            Q.   Now, I want to understand completely
18   why hysterectomy wouldn't have been indicated,
19   taking into account the entire clinical history
20   that Dr. Verghese would have had as of May and
21   June of 2005, including her age, all of her risk
22   factors, everything that a reasonable and prudent
23   OB-GYN or I'm sorry, a GYN should consider, why
24   was it not the standard of care to have done an
               SPANGLER REPORTING SERVICES, INC.
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 1   hysterectomy at that time?
 2            A.   I think we've gone over this,
 3   Howard.
 4            Q.   Well, I just want to make sure.
 5                 Now as of -- and I'm not trying to
 6   repeat things, Doctor, so please forgive me.  I
 7   just want to understand why an hysterectomy at
 8   that point, which now having reviewed the
 9   ultrasound which you describe as unchanged -- let
10   me come at it a different way.  I'll dive in
11   differently.
12                 Are you under oath holding the
13   position that the term "unchanged" is an accurate
14   description?
15            A.   I would say relatively unchanged.
16   And as I say, I think we've agreed to the point
17   that they did indeed get larger, but the question
18   is:  Is it significant given this clinical
19   setting?
20                 Now, I'll go through it again for
21   you.  We have asymptomatic fibroids, okay?  This
22   patient is -- there's two reasons that we want to
23   do an hysterectomy on a patient, because she's had
24   uncontrollable bleeding or she has pain.  Anything
               SPANGLER REPORTING SERVICES, INC.
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 1   short of that is an unnecessary hysterectomy.
 2            Q.   And you believe that this article
 3   that you have will support that contention?
 4            A.   I believe so.
 5            Q.   If she was not perimenopausal, would
 6   that change your opinion?
 7            A.   As long as I'd ruled out endometrial
 8   cancer, no, it wouldn't have changed my opinion.
 9            Q.   Even in a menopausal woman where
10   you've done an endometrial biopsy with all of her
11   clinical findings as well as the diagnostic
12   findings, you believe it still would be reasonable
13   and prudent not to do an hysterectomy?
14            A.   It's certainly more concerning in an
15   older woman who's been menopausal, but again,
16   she's totally asymptomatic.  And particularly in
17   this case I would be more concerned if that
18   menopausal patient, average age being 63 when
19   sarcomas are usually diagnosed, if she indeed had
20   pain, I would be very significantly -- I think
21   then she would need an hysterectomy, yes.  She's
22   still asymptomatic, whether she's menopausal or
23   not.
24            Q.   Symptomatic being having pain?
               SPANGLER REPORTING SERVICES, INC.
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 1            A.   Pain.
 2            Q.   Any other symptoms that you would
 3   have had to have seen to have tipped your index of
 4   suspicion?
 5            A.   No.
 6            Q.   So without the pain, every else that
 7   she had, growth in the fibroid, whatever we want
 8   to debate about the measurements, her abnormal
 9   uterine bleeding, it's your opinion that a
10   reasonable and prudent GYN surgeon as of May and
11   June of 2005 didn't need to perform an
12   hysterectomy on this patient to further evaluate
13   the risk of a cancer and/or a sarcoma?
14            A.   That's my opinion.
15            Q.   And, Doctor, in essence, is that the
16   sum of your opinions that you intend to provide at
17   the trial of this case?
18            A.   Right now, yes, um-hmm.
19            Q.   When you say "right now," do you
20   plan on coming up with any additional opinions?
21            A.   I don't know.  It depends on further
22   depositions.
23            Q.   Well, certainly to the extent that
24   you were to come up with any additional opinions
               SPANGLER REPORTING SERVICES, INC.
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 1   other than those which we talked about in the
 2   deposition:  A, I would object to that; and B, I
 3   would certainly want to know about them before you
 4   took the stand.
 5            A.   Absolutely.
 6                  MR. RIEMENSCHNEIDER:  Well, just so
 7   we're clear -- I mean, his report indicates he
 8   feels that the Ohio Permanente met the standard of
 9   care so --
10                  MR. MISHKIND:  Right.  That's what
11   I asked him before, in terms of whether there was
12   any breach in the standard of care.
13   BY MR. MISHKIND:
14            Q.   And you feel that all of the care
15   from November through the time of the diagnosis
16   was exactly what you would have done and, in fact,
17   complied with the standard of care?
18            A.   Yes.
19            Q.   And standard of care as far as the
20   scheduling of follow-up visits, assuming she was
21   told and didn't schedule a follow-up visit, you
22   don't believe that that would have altered the
23   outcome in this case?
24            A.   Not a bit.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   And if, in fact, she wasn't told to
 2   schedule a visit, and wasn't advised of the
 3   results of the ultrasound, you don't believe that
 4   that constitutes substandard care of a patient?
 5            A.   Well, you put a lot of questions in
 6   there.  I'm going to just say no.
 7            Q.   Okay.  I'm not trying to make it
 8   more complicated than necessary.
 9            A.   It's kind of like run-on sentences,
10   Howard.
11            Q.   I know.
12                  MR. RIEMENSCHNEIDER:  And also it's
13   been asked and answered pretty thoroughly at the
14   beginning of the deposition.
15                  MR. MISHKIND:  You expect me to
16   remember how I talked about it.
17                  MR. RIEMENSCHNEIDER:  I do, because
18   I know how you do it, you're brilliant.
19                  MR. MISHKIND:  Yeah.
20                 Let's do this, let's go off the
21   record for about two minutes.  I just want to
22   review my notes.  I think we are coming to the
23   finish line, Doctor, but rather than wasting the
24   video and the court reporter's time, if we could
               SPANGLER REPORTING SERVICES, INC.
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 1   take a moment's break.
 2                  THE VIDEOGRAPHER:  We're going off
 3   the record.  One second, please.  We're off.
 4                 (Brief recess.)
 5                  THE VIDEOGRAPHER:  This is a
 6   continuation of tape number one.  The time now is
 7   3:48.  You're back on the record.
 8   BY MR. MISHKIND:
 9            Q.   Doctor, we are heading towards the
10   home stretch.  I have about 8 or 9 questions and
11   we'll be done.
12                 First, I think while we were off the
13   record the court reporter has marked the exhibits
14   which would include your notes relative to the
15   review.  What I wanted you to do is to tell me
16   either in a summary fashion or by reading from
17   your notes what you've marked down that I presume
18   is in contrast to Dr. McLellan, I think you said
19   part of your notes had to do with your deposition?
20            A.   Yes.
21            Q.   If you could either read that or
22   look at the notes and summarize what you're trying
23   to convey?
24            A.   If you've got a fax machine, I can
               SPANGLER REPORTING SERVICES, INC.
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 1   fax them right up to you.
 2            Q.   You know what, by the time we go off
 3   the record -- why don't you just tell me what
 4   you've got there or summarize what it is that you
 5   felt that -- I presume you disagree with Dr.
 6   McLellan?
 7            A.   Yes.
 8            Q.   And is that what you've got noted
 9   there?
10            A.   Well, I just thought there were some
11   very interesting points in his deposition.
12            Q.   Okay.  Tell me what those are, sir.
13            A.   Basically that -- that he agrees
14   there was bleeding and there was no pain.  The
15   endo biopsy was inactive endometrium, the
16   ultrasounds we talked about.  Dr. McLellan
17   admitted that tumor was very aggressive and admits
18   50 percent mortality even at stage 1.  Peri- or
19   post-menopausal bleeding, it says, "rapidly
20   enlarged uterus."  He gives the opinion of 30 to
21   50 percent enlargement over six months.
22                 I would like to see that reference
23   myself, because I've never been able to find a
24   reference as to what somebody thinks is rapidly
               SPANGLER REPORTING SERVICES, INC.
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 1   growing, so I would be glad to see that reference.
 2                 Can't -- Well, I guess I can't
 3   disagree with Dr. -- oh -- Mishner was the surgeon
 4   that eventually did the surgery, and he agreed --
 5   and again this is December before the surgery, the
 6   GYN oncologist in Cleveland thought that there was
 7   a "very low chance of sarcoma, even at this late
 8   date," which he admits, too, was significant.
 9                 He was critical of Dr. Green who
10   gave the DepoLuprin, and that certainly didn't
11   change anything.
12            Q.   Would you have given DepoLuprin?
13            A.   I don't think we needed DepoLuprin
14   at that time.  I think they were probably just
15   trying to see, number one, if the fibroids would
16   go away or give her some relief before she had the
17   surgery.  I don't disagree.
18                  THE COURT REPORTER:  I'm sorry,
19   counsel, I didn't hear your question.
20            Q.   I'm sorry.  I said, but you wouldn't
21   have done what Dr. Green did, would you?
22            A.   At that stage it meant -- would I
23   have given DepoLuprin, probably not, but did it
24   change anything?  The answer is no.
               SPANGLER REPORTING SERVICES, INC.
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 1            Q.   Continue, please.
 2            A.   Anyway, he states that a Pipelle
 3   will pick up sarcoma two-thirds of the time which
 4   I thought was very interesting.  Because that's
 5   much higher than I would expect.  And the fact --
 6   in addition to the fact that we have a normal
 7   endometrial biopsis.
 8                 So if two-thirds of the time you
 9   could pick up a sarcoma, then if there was a
10   sarcoma or if I was supposed to be concerned about
11   it, then I would have been concerned about it
12   then.  So I mean that just furthers my argument
13   that there was really no indication for that
14   hysterectomy.
15            Q.   Anything else of substance from Dr.
16   McLellan?
17            A.   That's pretty much it.
18            Q.   Okay.  Doctor, what percentage of
19   your income is generated on a yearly basis from
20   medical legal work?
21            A.   Probably about five percent, five to
22   ten at the most, closer to five.
23            Q.   The uterine mass that was growing
24   from 5.4 to 10.7 from November to May, what --
               SPANGLER REPORTING SERVICES, INC.
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 1   what do you believe was causing that mass to grow?
 2            A.   Fibroids.
 3            Q.   In retrospect, knowing what the
 4   ultimate diagnosis was, what do you believe was
 5   causing it to grow?
 6                  MR. RIEMENSCHNEIDER:  Objection.
 7            A.   Retrospectively, it was probably the
 8   sarcoma, yes.
 9            Q.   Do fibroids typically grow or shrink
10   as a woman enters menopause?
11            A.   You're skirting on the question
12   here.
13            Q.   I'm sorry, sir?
14            A.   If you're talking about menopause,
15   all right, which this woman was not menopausal,
16   then clearly they shouldn't be enlarging.  In
17   perimenopausal, they enlarge all the time.
18            Q.   Now, if a 55-year-old African
19   American woman such as Lillian Dailey came to your
20   office complaining of continuous vaginal bleeding
21   after not having a period for six months, you note
22   she's obese, you note she's diabetic, you also
23   note that she has had what the ultrastenographer
24   had indicated was abnormal ultrasound,
               SPANGLER REPORTING SERVICES, INC.
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 1   transvaginal ultrasound within the past six
 2   months, and an endometrium that measured .9
 3   centimeters, and she had a large fibroid that had
 4   grown from November to May, what would have been
 5   within your differential at that time
 6   prospectively?
 7            A.   Give me the question again, Howard.
 8            Q.   Sure.  A woman comes into your
 9   office, 55-years old, African American, medical
10   history diabetes --
11            A.   Oh, God.
12            Q.   Obesity, irregular uterine bleeding,
13   no period in the last six months, an abnormal
14   ultrasound, an abnormal ultrasound by
15   interpretation by the ultrastenographer, a large
16   fibroid that has increased in size from 5.4 to
17   10.7, an endometrium that measures .9 centimeters,
18   prospectively looking at that case history, what
19   would have been within your differential
20   diagnosis?
21                  MR. RIEMENSCHNEIDER:  Objection.
22            A.   Clearly endometrial cancer would
23   have been in that diagnosis, and that's the reason
24   that I would have done the biopsy just like Dr.
               SPANGLER REPORTING SERVICES, INC.
0083
 1   Verghese did.  And the biopsy came back negative,
 2   patient had a hematocrit of 42, she didn't have
 3   any pain.  I wouldn't have done anything
 4   differently.
 5            Q.   Would your differential diagnosis at
 6   that time have been limited solely to uterine
 7   cancer?
 8            A.   And fibroids.
 9            Q.   And fibroids.  You would not have
10   had within your differential uterine sarcoma?
11            A.   Never have.
12            Q.   We can agree that an endometrial
13   biopsy that is negative, at least in your
14   experience, cannot rule out uterine sarcoma?
15            A.   Correct.
16            Q.   If uterine sarcoma was in the
17   differential hypothetically, and I recognize
18   that's what you've just told me, but if it was
19   within the differential, even though not high in
20   the differential, would the benefit of doing an
21   hysterectomy in this woman at her age have
22   outweighed the risk of an hysterectomy in your
23   opinion?
24            A.   I don't believe so.  She was high
               SPANGLER REPORTING SERVICES, INC.
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 1   risk for any kind of surgery.
 2            Q.   Why, sir?
 3            A.   She was high risk for any kind of
 4   surgery.
 5            Q.   No, I'm sorry, I was asking you why
 6   would you say that the risk, if uterine sarcoma
 7   was in the differential, why the risk of an
 8   hysterectomy, what is it indigenous or relative to
 9   her that would have made the risk exceed the
10   benefit?
11            A.   She's obese, she's diabetic, she's
12   hypertensive, it would be risky surgery.  Her
13   morbidity on a surgery like this would probably
14   approach 25 percent.
15            Q.   Meaning 75 percent of the time she
16   would have made it through the surgery?
17            A.   Yes.
18            Q.   Okay.  Just looking for one other
19   thing, and I think if I find it that will be my
20   last question or second last question.  I don't
21   want Dirk to hold me to that.  Well, I can't find
22   it, so I'm not going to take any more of your
23   time.
24                 I just want to make sure that I've
               SPANGLER REPORTING SERVICES, INC.
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 1   given you an opportunity, a fair opportunity, even
 2   though we're not face-to-face, to explain the
 3   opinions that you hold and the bases for those
 4   opinions.
 5            A.   You've been very fair.
 6            Q.   And in terms of the standard of care
 7   and the bases for why you believe the standard of
 8   care was met, have I given you a full opportunity
 9   to explain that?
10            A.   I believe you have.
11            Q.   And I won't be surprised by you
12   giving a causation opinion or approximate cause
13   opinions at the trial of this case?
14            A.   I will not do that.
15                  MR. RIEMENSCHNEIDER:  Unless you
16   ask him I guess, Howard, since you asked him quite
17   a bit after he told you he wasn't opining on it.
18                  MR. MISHKIND:  Well, that's what
19   the discovery deposition is all about, isn't it?
20                  MR. RIEMENSCHNEIDER:  Yeah, I guess
21   so.
22                  MR. MISHKIND:  All right.  Doctor,
23   I appreciate your time and I appreciate you
24   obliging me in this manner to do the deposition.
               SPANGLER REPORTING SERVICES, INC.
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 1   With that I have no further questions.
 2                  THE WITNESS:  Not a problem.  Thank
 3   you.
 4                  MR. RIEMENSCHNEIDER:  Have a good
 5   night, Howard.
 6                  MR. MISHKIND:  You, too.  And
 7   obviously the Doctor will read the depo and we'll
 8   go from there.
 9                  THE WITNESS:  She -- I think
10   someone has something to ask you.  Hello.
11                  MR. RIEMENSCHNEIDER:  Marlene.
12                  THE VIDEOGRAPHER:  You have the
13   right to review the video, but you can waive that,
14   too.
15                  MR. RIEMENSCHNEIDER:  He'll waive
16   reviewing the video, but we'll reserve the right
17   to review the deposition.
18                  THE VIDEOGRAPHER:  Okay.  This is
19   the end of the deposition.  This is the end of
20   tape one of one.  The time now is 4:00.
21                 One second, we're going off the
22   record.  We're off.
23   (Plaintiff's Exhibits 1 and 2 were marked for
24   identification.)
               SPANGLER REPORTING SERVICES, INC.
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 1   
 2   
 3                  WILLIAM MALCOLM JAMIESON, III, M.D.
 4                          -  -  -
 5            DEPOSITION CONCLUDED AT 3:58 P.M.
 6                          -  -  -
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               SPANGLER REPORTING SERVICES, INC.
0088
 1                    C E R T I F I C A T E
 2   STATE   OF   OHIO  :
 3                      :  SS
 4   COUNTY OF HAMILTON :
 5            I, PAMELA SUE SPANGLER, RPR, the
 6   undersigned, a duly qualified and commissioned
 7   notary public within and for the State of Ohio, do
 8   hereby certify that before the giving of his
 9   aforesaid deposition, the said WILLIAM MALCOLM
10   JAMIESON, III, M.D. was by me first duly sworn to
11   tell the truth, the whole truth and nothing but
12   the truth; that the foregoing is the deposition
13   given at said time and place by the said WILLIAM
14   MALCOLM JAMIESON, III, M.D.; that said deposition
15   was taken in all respects pursuant to Notice to
16   Take Deposition, duly issued and served, and
17   agreement; that said deposition was taken by me in
18   stenotypy and transcribed by computer-aided
19   transcription under my supervision; that the
20   transcribed deposition is to be submitted to the
21   witness for his examination and signature; that I
22   am neither a relative of nor attorney for any of
23   the parties to this cause, nor relative of nor
24   employee for any of their counsel, and have no
               SPANGLER REPORTING SERVICES, INC.
0089
 1   interest whatever in the result of the action.
 2            IN WITNESS WHEREOF, I hereunto set my
 3   hand and official seal of office at Cincinnati,
 4   Ohio, this           day of               , 2009.
 5   
 6   
 7   MY COMMISSION EXPIRES: PAMELA SUE SPANGLER, RPR
 8   APRIL 28, 2012.      NOTARY PUBLIC-STATE OF OHIO
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               SPANGLER REPORTING SERVICES, INC.