1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO 2 CASE NO. 185632 3 DAVID RAY, et al., ) 4 ) Plaintiffs ) DEPOSITION OF 5 vs. ) )JAMES P. KLEJKA, M.D. 6 KIM STEARNS, M.D., et al., ) ) 7 Defendants ) 8 9 10 11 Deposition taken before me, Wendy A. Klein, 12 Notary Public within and for the State of Ohio, on 13 the 24th day of April, 2001, at 1:30 PM, pursuant to 14 notice, taken at the Crystal Clinic, 3975 Embassy 15 Parkway, Akron, Ohio, to be used in accordance with 16 the Ohio Rules of Civil Procedure or the agreement of 17 the parties in the aforesaid cause of action pending 18 in the Court of Common Pleas within and for the 19 County of Cuyahoga and State of Ohio. 20 21 22 SIMONI COURT REPORTING WARREN/YOUNGSTOWN, OHIO (330) 399-1400, 746-0934 2 1 A P P E A R A N C E S 2 3 On Behalf of the Plaintiffs: Tobias J. Hirshman, Attorney at Law 4 LINTON & HIRSHMAN 5 On Behalf of the Defendants: 6 Ronald M. Wilt, Attorney at Law BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SIMONI COURT REPORTING 3 1 I N D E X 2 3 DEPONENT -- JAMES P. KLEJKA, M.D. 4 5 E X A M I N A T I O N S 6 DIRECT CROSS REDIRECT RECROSS 7 Mr. Wilt 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SIMONI COURT REPORTING 4 1 INDEX OF OBJECTIONS 2 Attorney Page Number 3 Mr. Hirshman 8 4 Mr. Hirshman 9 5 Mr. Hirshman 10 6 Mr. Hirshman 10 7 Mr. Hirshman 10 8 Mr. Hirshman 26 9 Mr. Hirshman 28 10 Mr. Hirshman 70 11 Mr. Hirshman 70 12 Mr. Hirshman 88 13 Mr. Hirshman 89 14 E X H I B I T S 15 Exhibit Number Page Number 16 Defendant's Exhibit A 92 17 18 19 20 21 22 SIMONI COURT REPORTING 5 1 P R O C E E D I N G S 2 JAMES P. KLEJKA, M.D. 3 having been duly sworn according to law, on his 4 oath, testified as follows: 5 CROSS EXAMINATION 6 BY MR. WILT: 7 Q. Dr. Klejka, if you could state your full name. 8 A. James P. Klejka. 9 Q. And what is your present specialty of 10 practice? 11 A. Physical medicine and rehabilitation and 12 electrodiagnostic medicine. 13 Q. Tell me a little bit about physical medicine 14 and rehabilitation and basically what 15 that encompasses within the scope of 16 medical practice. 17 A. It's a specialty that deals with 18 rehabilitation of neurological and 19 musculoskeletal injuries. Injuries to 20 the brain, the spinal cord, nerves, 21 muscles, bones, things like traumatic 22 brain injuries, strokes, spinal cord SIMONI COURT REPORTING 6 1 injuries, back injuries, pinched nerves, 2 amputees, those type of things. 3 Q. And what type of patients -- well, let me go 4 back. I take it patients usually don't 5 present to you primarily; rather, they're 6 referred to you from one source or 7 another; is that a fair statement? 8 A. Yes, that's correct. 9 Q. Describe for me where you receive your 10 referrals from, the whole scope. 11 A. The vast majority of my referrals are from 12 hand surgeons. I do probably 70 to 80 13 percent electrodiagnostic medicine, which 14 is testing the nerves to see how they're 15 functioning, and then maybe ten percent 16 of my -- or maybe 15 percent would come 17 from other general orthopedic surgeons 18 for a variety of chronic musculoskeletal 19 conditions and injuries, and probably the 20 last five percent would come from primary 21 care physicians, family doctors, either 22 for nerve studies or for management of SIMONI COURT REPORTING 7 1 their neuromuscular problems. 2 Q. And in this case, who referred David Ray to 3 you? 4 A. I believe his attorney, Leonard Davis, 5 contacted me. 6 Q. Okay. And prior to Mr. Ray, had you had the 7 opportunity to work with Mr. Davis or his 8 clients previously? 9 A. I may have worked with him either prior to or 10 after that, once or twice. I'm not sure 11 of the exact sequence of events. 12 Q. Is that a fairly common occurrence, that 13 attorneys will send their clients to you 14 to be evaluated? 15 A. Common in the sense of it happens maybe three 16 to five times per year, maybe less. I 17 may have worked with Leonard Davis in the 18 past where I was actually taking care of 19 his patient previous to that, and the 20 patient was involved in a suit. Most of 21 my involvement has to do with the 22 patients I actually am treating or have SIMONI COURT REPORTING 8 1 treated, rather than referred directly 2 from the attorney. 3 Q. In this case, although you evaluated Mr. Ray 4 and I have reviewed your reports, it 5 doesn't appear that you actually 6 prescribed or gave any treatment for 7 whatever problems he may or may not have 8 had. 9 A. Right. I discussed his injuries, as I -- as I 10 found them to be, and I gave him 11 prognostic factors for recovery or not 12 recovery for his condition, and made some 13 recommendations about possible further 14 treatment if he desired it. 15 Q. Do you know as to whether or not Mr. Ray has 16 undertaken or pursued any of the 17 recommendations you have given him? 18 MR. HIRSHMAN: Objection. 19 A. I think the -- I have to look at my records to 20 see what I recommended. 21 Q. Sure. I'm sorry. Go ahead. 22 A. I recommended to him possibly considering SIMONI COURT REPORTING 9 1 surgical exploration of his nerve or a 2 tendon transfer on his first visit. That 3 would involve a hand surgeon. I think I 4 actually gave him the name of Dr. Thomas 5 Riley, a hand surgeon here at Crystal 6 Clinic, if he wanted to pursue those 7 avenues, and I believe he did not pursue 8 either course. 9 Q. Okay. Let's talk about the tendon transfer. 10 What is your understanding as to what 11 that procedure is and the purpose of it? 12 MR. HIRSHMAN: Objection. You may 13 answer. 14 A. Well, a tendon transfer involves moving a 15 functional muscle to a muscle which isn't 16 functioning. So, it involves robbing 17 Peter to pay Paul. In other words, 18 giving up some function that you 19 currently have to regain function which 20 you've lost. The function that you 21 obtain from that is never as good as the 22 function you had prior to an injury, but SIMONI COURT REPORTING 10 1 it does oftentimes provide greater use or 2 function of a limb. 3 Q. Have you treated any patients who have 4 undergone a tendon transfer in order to 5 restore partial or a complete loss of 6 function to the digits in their hand? 7 MR. HIRSHMAN: Objection. 8 A. Yes, I have. 9 Q. Okay. And based upon your experience with 10 your prior patients, did it improve 11 their -- the function of their hand? 12 MR. HIRSHMAN: Objection. 13 A. In some cases it did, and in other cases, it 14 did not. 15 Q. Was there any distinction between the patients 16 and their different presentations, as far 17 as the patients who did have functional 18 improvement as compared to the patients 19 who did not have functional improvement? 20 MR. HIRSHMAN: Objection. 21 A. I'm not sure if I could make a distinction. 22 MR. WILT: Do you just want to have SIMONI COURT REPORTING 11 1 a standing objection to all questions regarding 2 tendon transfers? 3 MR. HIRSHMAN: That's fine. 4 MR. WILT: Okay. 5 Q. Is that something -- strike that. Have you 6 ever had a patient such as Mr. Ray who 7 suffered a posterior interosseous nerve 8 injury undergo a tendon transfer 9 operation? 10 A. I believe I've had a patient with a higher 11 radial nerve injury undergo a tendon 12 transfer. Actually, the case I'm 13 thinking of was a multiple nerve injury, 14 both the -- actually, all three, radial, 15 median and ulnar nerves were lacerated 16 above the elbow. The person went through 17 a window, I believe. 18 Q. Why did you feel that Mr. Ray might be a 19 patient who could benefit from a tendon 20 transfer operation? 21 A. Well, he lacked the ability to extend his 22 fingers, and a tendon transfer procedure SIMONI COURT REPORTING 12 1 would typically give him the ability to 2 extend his fingers. 3 Q. Do you know any precise information as to 4 exactly how that procedure is performed? 5 A. No. I'm not a hand surgeon. That would be 6 performed by a hand surgeon. 7 Q. And that's one of the reasons that you 8 recommended he go see Dr. Riley? 9 A. Indeed. 10 Q. Okay. And in looking through your reports -- 11 and I think you have them there. Before 12 you -- I think the first time you 13 recommend this was when you first saw him 14 on September 28, 1999; is that correct? 15 A. Yes. I actually recommended we perform EMG 16 nerve conduction studies, and based on 17 those results, proceed with those 18 options. 19 Q. Okay. And, in fact, down here at the bottom, 20 you said he has two options, and those 21 two options were the options you stated a 22 little bit ago? SIMONI COURT REPORTING 13 1 A. Stay as he is, or pursue the surgical 2 exploration or tendon transfers. 3 Q. And what was your understanding, if you have 4 one, as to why Mr. Ray decided not to 5 pursue the medical recommendations you 6 made? 7 A. I believe he voiced to me in his next couple 8 of visits that he was afraid of losing 9 any further function. After having such 10 a bad outcome from his first surgery, he 11 was afraid of any other bad outcomes. 12 Q. Did he make you aware that Dr. Hunt had 13 discussed with him the possibility of 14 tendon transfers? 15 A. Either he did, or I believe I may have read it 16 in the actual notes that were provided to 17 me ahead of time. I was aware that that 18 had been recommended previously. 19 Q. Okay. When you're in this role, where an 20 attorney has referred their client to you 21 for evaluation, define for me what you 22 believe your purpose to be or charge to SIMONI COURT REPORTING 14 1 be when those type of referrals occur. 2 A. Well, I discuss it with the attorney up front 3 what he's expecting. The vast majority 4 of cases are cases where I'm determining 5 functional status; i.e., what the injury 6 means to the person's future functioning. 7 Probably almost exclusively, that's been 8 the case when an attorney contacts me, 9 functioning. What is functioning in this 10 case, how bad is the nerve damage, is it 11 functioning. 12 Q. And given your experience in this regard, I 13 take it you are aware that oftentimes, 14 your reports that you author are given to 15 vocational experts, such as in this case, 16 Dr. Ancell, and our other case would have 17 been Linda Gartman, and they rely upon 18 your findings? Are you aware of that? 19 A. Hopefully, they do, yes. 20 Q. Okay. Now, I noticed in your chart that you 21 charted a number of conversations with 22 Mr. Ray's attorneys, either Mr. Hirshman SIMONI COURT REPORTING 15 1 or Mr. Davis. Could you go through and 2 just tell me when the first time you 3 spoke with Mr. Davis was, and what, if 4 anything, you can recall about that 5 conversation? 6 A. It looks like Attorney Davis called me on 7 October 14 of '99. This would have been 8 after I had seen his client, Mr. Ray, and 9 we discussed my findings and 10 recommendations in regard to Mr. Ray, in 11 regards to whether nerve repair or tendon 12 transfer would be possible, and my 13 recommendations for him to see a hand 14 surgeon. 15 Q. Okay. What date was that? 16 A. 10-14-99. 17 Q. And since I don't have these notes -- can you 18 just read your handwriting into the 19 record there? I want to make a copy of 20 these at the end of the deposition, 21 but -- 22 A. You want the note above and the note below? SIMONI COURT REPORTING 16 1 Q. No, I think I can read the note above. 2 A. Okay. 10-14-99, "Returned call," called 3 Attorney Davis. "Discussed findings and 4 recommendations. He is to see a hand 5 surgeon, reason nerve repair versus 6 tendon transfer." 7 Q. All right. When is the next time you spoke to 8 one of Mr. Ray's attorneys? 9 A. On 5-10-2000, I spoke with Attorney Davis 10 concerning the EMG nerve conduction 11 report and findings. 12 Q. All right. And I take it you would have just 13 told him what the nerve conduction study 14 showed? 15 A. Yes, exactly. 16 Q. Okay. When is the next time you talked to an 17 attorney? 18 A. June 8 of 2000. 19 Q. Okay. 20 A. Attorney Leonard Davis again. I spoke -- I'll 21 read my note again. 22 Q. Sure. SIMONI COURT REPORTING 17 1 A. "I spoke with Mr. Davis. I discussed whether 2 it looks like remedial -- immediate 3 surgical repair would have made a 4 difference. I explained I was not 5 qualified to make an opinion in that 6 regard." 7 Q. All right. And I take it when he was asking 8 about immediate surgical repair, he's 9 referring to after the surgery 10 performed -- or let me strike that. 11 Mr. Davis referring to immediate surgical 12 repair, as in immediately after Mr. Ray 13 became aware that he had lost some 14 function in his fingers? 15 A. Yes, I believe that was the question. 16 Q. Okay. 6-8-2000, when is the next time? 17 A. I don't believe I spoke to another attorney on 18 the phone, unless I dictated a note here. 19 I believe the next attorney I spoke with 20 was Attorney Hirshman, rather in person, 21 not on the phone. 22 Q. Okay. When did you speak with him in person? SIMONI COURT REPORTING 18 1 THE WITNESS: Can we go off the 2 record for a second? 3 (OFF THE RECORD) 4 A. I'm not sure. 5 Q. Okay. Was it shortly before your March 13, 6 2001 report? 7 A. I believe it was, yes. 8 Q. And when we say, "shortly," can we say within 9 a month prior to that? 10 A. I'm not sure. 11 Q. Okay. 12 A. I think he wanted me to see Mr. Ray again, as 13 I hadn't seen him for quite some time. 14 Q. Okay. What was your understanding as to why 15 he wanted you to see the patient for a 16 third visit? 17 A. To evaluate his current function and what that 18 meant to him in terms of prognostic use 19 of his hand. 20 Q. Had his function significantly changed between 21 October of 1999 and March of 2001? 22 A. No, it had not. SIMONI COURT REPORTING 19 1 Q. And when these patients present to you for 2 evaluation by their attorney, who pays 3 your fees? 4 A. The attorney does. 5 Q. Okay. And in this case, I take it, each time 6 Mr. Ray has presented to you and also 7 when you performed nerve conduction 8 studies, all of those costs and your fees 9 were paid for by Mr. Ray's attorneys? 10 A. Yes. 11 Q. Okay. And do you charge the attorneys for the 12 time that you spend meeting with them? 13 A. Yes. If it's a visit not on the phone, but a 14 conference, yes. 15 Q. Okay. So, when Mr. Hirshman met with you some 16 time earlier this year and then again 17 today for a half hour prior to your 18 deposition, I'm assuming he's also paying 19 you for your time for those meetings? 20 A. Yes, that's correct. 21 Q. Okay. 22 (OFF THE RECORD) SIMONI COURT REPORTING 20 1 Q. All right. Let's just take each one of your 2 reports. Let's start with September 28, 3 1999. Tell me when you get there. 4 A. Okay. 5 Q. All right. Just look this over and tell me 6 what information you derived from the 7 patient, or Mr. Ray, as compared to some 8 other source. 9 A. Could you repeat the question? 10 Q. Sure. Can you look this over, and 11 particularly, I'm looking at the first 12 page primarily, and tell me what 13 information on this page was derived from 14 Mr. Ray and in your conversation with 15 him, as compared to some other source. 16 A. Well, it's a mixture of both. I had some 17 records which were provided to me prior 18 to his visit, which I had reviewed and 19 reviewed with the patient, and he 20 confirmed some questions I had, and we 21 put the history together based on that. 22 Q. Okay. So, I'm assuming a lot of these dates SIMONI COURT REPORTING 21 1 were dates that you obtained from the 2 records? 3 A. Yes. 4 Q. All right. And I'm assuming that nowhere in 5 any of the records does it talk about 6 Mr. Ray having a ripping sensation, and 7 that's something that he just told you 8 was his sensation when it occurred? 9 A. I can't answer that. I don't know for sure, 10 but like I said, it's a mixture of the 11 two. Unless it's written in the other 12 outpatient notes, which are rather 13 voluminous. It may or may not be. But 14 that was the sense I got, right. We 15 agreed on that as a history. 16 Q. All right. Down the paragraph, it says, 17 "Mr. Ray states that immediately 18 postoperatively, he had an inability to 19 extend his fingers of the left hand which 20 has not improved to this date." And my 21 question is, when it says, "immediately 22 postoperatively," do you recall was that SIMONI COURT REPORTING 22 1 within a day or two of the operation, or 2 did you get that from the operative 3 records or the -- not the operative 4 records, but the medical records that 5 indicate that on his first postoperative 6 visit, he complained of an inability to 7 extend his fingers? 8 A. I think that is him telling me directly that 9 as soon as he was aware after his 10 surgery, that he knew he had a problem 11 extending his fingers. 12 Q. All right. Okay. At that time -- I'm down to 13 the third paragraph -- "Complains of 14 weakness of the left hand, particularly 15 with finger extension and with supination 16 of the left wrist." So, I understand, in 17 addition to his inability to extend his 18 fingers, was this just a general overall 19 weakness of the left hand? 20 A. I'm not sure where you're looking at here. 21 I'm sorry. 22 Q. Third paragraph -- actually fourth. Starts SIMONI COURT REPORTING 23 1 with the word, "Currently." 2 A. Okay. I'm sorry. What was the question 3 again? 4 Q. The weakness of the left hand, is this an 5 overall weakness, or is there anything 6 more specific about that that he 7 complained of? 8 A. Just the weakness that I noted of his left 9 hand, particularly finger extension and 10 supination, or turning of his wrist. 11 Q. All right. And -- 12 A. He also thought he had weakness of his biceps 13 also, a couple sentences down. 14 Q. Yes, I'm going to get there. At that time, he 15 did not have any pain in his arm; is that 16 correct? 17 A. That's correct. 18 Q. He did not complain of any numbness in his 19 hand or forearm; is that correct? 20 A. That's correct. 21 Q. No tingling in his hand or forearm? 22 A. That's correct. SIMONI COURT REPORTING 24 1 Q. The fact that he doesn't have any pain, 2 numbness and tingling, is that a good 3 indicator that all of his sensory nerves 4 are intact as far as his forearm and 5 hand? 6 A. That would be the implication. 7 Q. Okay. "Denies any neck pain." Why did you 8 ask him about neck pain? 9 A. Because individuals who have weakness in their 10 hand could potentially have a pinched 11 nerve in their neck or damaged nerves in 12 the neck. 13 Q. All right. "Does have continued weakness of 14 the biceps." Now, is this something that 15 you tested at this point, or is this 16 something he complained of? 17 A. This is the impression. This is his history 18 as he has given it to me. 19 Q. All right. Did you have an understanding on 20 that date why he was let go from his job 21 on 6-25-99? 22 A. There's a little confusion there. I talked to SIMONI COURT REPORTING 25 1 him about this, I guess, two years later, 2 about his job history, and apparently, he 3 had lost his original job and had worked 4 a different job, and was let go from that 5 job because he couldn't complete his job 6 tasks. Maybe if you jump forward to -- 7 Q. No, I understand that, but I want to go back 8 to September 1999. 9 A. The way I understood it is how I wrote it at 10 that time, but -- as the sentence states. 11 Q. All right. So, at least in September of 1999, 12 it was your impression that he was 13 ultimately let go from his primary job 14 because he could not complete his job 15 tasks? 16 A. That's correct. 17 Q. And his primary job at that point in time was 18 the same job that you are referring to, 19 where the employers did not think that he 20 could climb? 21 A. Yes. 22 Q. Okay. Did you have an understanding at that SIMONI COURT REPORTING 26 1 time that he was employed as a service 2 technician for a manufacturer of 3 Rossbrough Manufacturing? 4 MR. HIRSHMAN: I'm just going to ask 5 you to clarify which time you're talking about, 6 since there are dates of June, August and September 7 in that sentence. 8 MR. WILT: That's fine. 9 Q. Anyway, did you have an understanding at that 10 time that he was employed as a service 11 tech for Rossbrough, and that he worked 12 in steel mills? 13 MR. HIRSHMAN: I'm going to object, 14 because you're not telling him what time. 15 A. He had told me that he was a millwright, and 16 my understanding was that it was his job 17 as a millwright that he was let go from 18 at that time. 19 Q. Okay. 20 A. That's what I understood. 21 Q. All right. And he was let go from the job 22 because he couldn't perform the tasks the SIMONI COURT REPORTING 27 1 way his employers wanted him to? 2 A. That was the way I understood it. 3 Q. Okay. He's also having difficulty playing his 4 guitar, putting his hand in his pocket 5 and riding his motorcycle, as he is 6 unable to operate the clutch effectively, 7 and has difficulty putting on gloves. 8 What was your understanding as to why he 9 was having difficulty with these various 10 tasks you've listed there in that 11 sentence? 12 A. Because of the weakness of his hand. 13 Q. Okay. Why would weakness in the hand affect 14 your ability to put your hand in your 15 pocket? 16 A. Because you can't manipulate your fingers in 17 the proper angle to slide into your 18 pocket. 19 Q. All right. 20 A. He can't straighten his fingers. Hard to put 21 curled fingers into a pocket, unless 22 they're big pockets. SIMONI COURT REPORTING 28 1 Q. You've got past medical history, past surgical 2 history. In September 1999, was Mr. Ray 3 on any antidepressants that you were 4 aware of? 5 A. Not to my knowledge. 6 Q. Did Mr. Ray ever make you aware of his history 7 of steroid use in order to gain muscle 8 mass? 9 MR. HIRSHMAN: Objection. 10 A. No, he did not. 11 Q. You state he weighs 360 pounds. Did you weigh 12 him, or is that what he told you he 13 weighs? 14 A. Our scale only goes up to 350. He was more 15 than 350. 16 Q. I noted that in March of this year, you stated 17 that he was in excess of 350. Is that 18 why you said, "in excess"? 19 A. Yes. 20 MR. WILT: Off the record. 21 (OFF THE RECORD) 22 Q. All right. You did a physical examination. SIMONI COURT REPORTING 29 1 Now, on this day, you did not perform an 2 EMG study; is that correct? 3 A. That's correct. 4 Q. All right. On this day, he was alert, 5 oriented and pleasant. Did he express to 6 you at any point in time in September of 7 1999 that he was angry, depressed, 8 anything like that, in September '99? 9 A. He certainly was upset about his loss of 10 function. I'm not sure if he expressed 11 any feelings of anger or depression at 12 that time to me. 13 Q. Okay. "Spurling's is negative." What is 14 that? 15 A. That's a maneuver looking at the nerve in your 16 neck, where you have a person extend and 17 rotate their head, and then you put 18 pressure on top of their head to see if 19 you can compress the nerve that may be 20 inflamed. A sign of a pinched nerve in 21 the neck if it's positive. 22 Q. Okay. Strength in the right upper limb is SIMONI COURT REPORTING 30 1 five out of five. I'm assuming if the 2 first number -- let me just say, you 3 measure the strength, I guess, zero 4 through five. If you have a five out of 5 five, that means strength is normal? 6 A. That's correct. 7 Q. Okay. Zero out of five means basically, you 8 have a flaccid limb or digit? 9 A. You have no movement. 10 Q. Right. How do you go about performing this 11 test to check the strength? 12 A. You check individual muscles, muscle groups. 13 Depending on the strength, you can put 14 them in various positions to see if they 15 can even have a trace movement. If 16 they're very weak, you may have to put 17 them in a position to remove gravity from 18 that joint and then see if they can even 19 contract the muscle a little bit. That 20 would be a one out of five, a trace 21 movement. A two out of five would be 22 movement with gravity eliminated. So, SIMONI COURT REPORTING 31 1 something like this. (Indicating) 2 Q. Right. 3 A. A three out of five would be with gravity, 4 able to overcome gravity, but not 5 stronger. A four out of five is good 6 strength, but not normal, and a five out 7 of five is normal strength. 8 Q. All right. We'll just talk about the abnormal 9 findings. Elbow flexors, describe for me 10 what you found as far as his strength. 11 A. He had good to almost normal strength in his 12 elbow flexors on the left, which is 13 ability to bend his elbow, obviously. 14 Q. Okay. Wrist extensor? 15 A. Wrist extensor are the ability to bring your 16 wrist upward. 17 Q. All right. 18 A. And he had slightly less than good strength to 19 good strength there. 20 Q. Okay. Zero to one wrist supinators? 21 A. That's the ability to turn your wrist over and 22 to -- your palm is facing upward. SIMONI COURT REPORTING 32 1 Q. All right. What did you attribute the loss of 2 strength with the supinators to, if 3 anything? 4 A. Well, at this time, before doing the EMG nerve 5 conduction study, I would assume that the 6 loss of supinator strength is due to a 7 radial nerve injury or posterior 8 interosseous nerve injury. 9 Q. Does the posterior interosseous nerve control 10 motor function in the wrist supinator? 11 A. Yes. 12 Q. Okay. 13 A. It actually -- the anatomy is the radial nerve 14 comes down, divides into a superficial 15 branch with less strength and the 16 posterior interosseous nerve gives off a 17 branch to the supinator, then goes 18 through the supinator muscle down to the 19 forearm. 20 Q. You stated before you did the EMG study. Did 21 that change after you did the EMG study? 22 A. My impression where the nerve injury is? SIMONI COURT REPORTING 33 1 Q. Right. 2 A. When I did the nerve study, I found out that 3 the supinator actually, neurologically, 4 is functioning normally, and the EMG 5 nerve conduction study places the injury 6 below that level, just below the 7 enervation to the supinator muscle. 8 Q. Okay. Where is that on the forearm? 9 A. It's in your upper forearm, right -- we're 10 talking about a range of literally, maybe 11 less than a half inch difference, maybe 12 an inch at most. Probably less than 13 that. 14 Q. Okay. After you did the EMG study and you saw 15 that the nerve was functioning normally 16 in that area, did you form an opinion as 17 to what was causing this apparent 18 significant loss of function in the wrist 19 supinators? 20 A. No, I didn't form a direct opinion concerning 21 that at that time. 22 Q. Okay. And then he has a zero out of five SIMONI COURT REPORTING 34 1 finger extensor? 2 A. Right. 3 Q. And that would be attributable, I take it, to 4 the interosseous nerve? 5 A. That's correct. 6 Q. Zero out of five extensor indicis proprius? 7 Am I pronouncing that correctly? 8 A. Yes, proprius. That's your index finger. You 9 couldn't straighten your index finger. 10 Q. And that, again, I'm assuming is enervated by 11 the interosseous nerve, and that's why 12 you attributed that loss of function? 13 A. That's correct. 14 Q. And finally, zero out of five in the extensor 15 pollicis longus? 16 A. Yes. That's your thumb, ability to straighten 17 your thumb. 18 Q. And, again, is that something that you 19 attributed to an injury to the 20 interosseous nerve? 21 A. Yes. 22 Q. All right. He was five out of five in his SIMONI COURT REPORTING 35 1 wrist flexors? 2 A. Right. 3 Q. And that, I take it, is just the ability to 4 flex your wrist up toward your bicep? 5 A. Right. 6 Q. Okay. And also five out of five in his long 7 finger flexors? 8 A. That's the ability to bend your fingers at the 9 distal tip there all the way down. 10 Q. All right. And you note that he has normal -- 11 he appears to have normal hand strength? 12 A. Hand intrinsic strength. 13 Q. What is that? 14 A. That's the muscles within the hand itself. 15 It's a little difficult to assess that 16 always on the exam, because when you have 17 loss of radial nerve function, you can't 18 hold your hand in a position that will 19 put those muscles to best advantage. So, 20 oftentimes, it appears as if there's 21 weakness there, when there oftentimes is 22 not, and it's hard to tell whether SIMONI COURT REPORTING 36 1 there's true neurologic injury or whether 2 there's a functional problem due to 3 inability to put the joints in the proper 4 function because of the synchronicity of 5 muscular action that goes on when you 6 manipulate your fingers. So, if you lose 7 one aspect of that, everything suffers, 8 but the best I could tell, it looked like 9 the rest of his hand intrinsic strength 10 was working. 11 Q. Just so I can understand this on the record 12 later, you're essentially referring to 13 almost the palm of the hand and 14 everything below, where the digits are 15 separated from the palm of the hand? 16 A. Right. The muscles in the palm of the hand, 17 yes. 18 Q. Okay. So, in other words, Mr. Ray, if you 19 shook his hand and got your hand inside 20 of his hand, he would be able to grip 21 your hand pretty much normally for a 22 handshake, once he gets it around? SIMONI COURT REPORTING 37 1 A. Yes. That doesn't have to do with the hand 2 intrinsic, but yes, he has a good hand 3 grip. 4 Q. But also, his finger flexors and everything 5 are normal and working? 6 A. Yes, that's correct. 7 Q. All right. No Tinel's is present, and I take 8 it that's over the scars? 9 A. Right over the nerves, right, to see -- a 10 Tinel's is a tingling sensation when you 11 tap on a nerve or put pressure on a 12 nerve. 13 Q. Okay. And where would you have tapped? 14 A. Over the surgical incision site certainly, 15 over the course of the nerve along his 16 elbow. 17 Q. Okay. 18 A. Routinely we also check the other nerves as 19 well, the median and ulnar nerves for 20 Tinel's. He didn't have any in this 21 case. 22 Q. What significance, if any, is the absence of a SIMONI COURT REPORTING 38 1 Tinel's sign? 2 A. Not a whole lot. 3 Q. All right. Reflexes, one out of four at the 4 triceps and brachioradialis literally? 5 A. Yes. 6 Q. Is that normal or abnormal? 7 A. That's normal. 8 Q. Okay. One out of four at the right biceps, 9 but the reflex was unobtainable at the 10 left biceps. What did you attribute that 11 finding to? 12 A. Loss of reflexes, almost certainly due to the 13 previous tendon rupture. 14 Q. Okay. And your impression at that time was a 15 nerve injury distal to the extensor carpi 16 radialis longus muscular branch and what 17 appears to be definitely proximal to the 18 muscular branch of the supinator. And I 19 think we just discussed -- and your later 20 reports bear this out -- that ultimately, 21 you changed that impression to the injury 22 is distal to the supinator? SIMONI COURT REPORTING 39 1 A. That's correct. 2 Q. Okay. And then we have already talked about 3 your recommendations; is that correct? 4 A. Yes. 5 Q. All right. Let's move on to your report of 6 October 13, 1999. 7 MR. HIRSHMAN: You're talking about 8 the supinator nerve? 9 THE WITNESS: Supinator muscle. 10 It's a muscle. 11 MR. HIRSHMAN: Okay. 12 THE WITNESS: The nerve branch to 13 the supinator muscle. 14 MR. HIRSHMAN: So, we're not talking 15 about distal to the supinator muscle, which is down 16 in the forearm? 17 THE WITNESS: Right. 18 Q. It's below where the supinator branch comes 19 off of the radial nerve and innervates 20 the supinator muscle? 21 A. That's correct. That's what I'm referring to. 22 Q. All right. Great. October 13, 1999, I assume SIMONI COURT REPORTING 40 1 on this date, since you didn't take 2 really any history, the primary purpose 3 was to just conduct the EMG studies and 4 see how the nerves were functioning from 5 an objective standpoint? 6 A. That's correct. 7 Q. And why don't you just tell me generally what 8 you found. 9 A. Well, I found that his radial nerve was not 10 functioning, or his posterior 11 interosseous nerve, the extension of his 12 radial nerve, is not functioning distal 13 to the branch to the supinator muscle 14 except for one motor unit, or one small 15 fiber to his extensor pollicis longus 16 muscle, but for the most part, the nerve 17 is totally nonfunctional distal, or below 18 the level of the enervation of the 19 supinator muscle. The other nerves which 20 were tested, including his median and 21 ulnar nerve -- or excuse me, including 22 his median nerve, appeared to be normal, SIMONI COURT REPORTING 41 1 and the EMG of other muscles of his arm, 2 which include nerves coming out of his 3 neck and muscles enervated by the median, 4 ulnar, muscular, cutaneous nerves all 5 were functioning normally. So, he has an 6 isolated injury here to his posterior 7 interosseous nerve below the level of the 8 supinator. 9 Q. All right. What other branches come off of 10 the radial -- when did you say it becomes 11 the posterior interosseous? Is it 12 because it's a radial nerve, and then 13 what does that motor branch -- when is it 14 deemed to be the posterior interosseous? 15 A. It's confusing. Some people would refer to 16 the continuation as the radial nerve as 17 well. So, it makes it confusing, but 18 typically, the posterior interosseous 19 nerve begins at the bifurcation, the 20 separation, of the radial nerve to a 21 superficial branch, and -- right 22 superficial is the sensory branch, comes SIMONI COURT REPORTING 42 1 down, does the sensation on the top of 2 your hand, and the other branch dives 3 into the muscle, and that's the posterior 4 interosseous nerve. 5 Q. Okay. And after that branching of the radial 6 nerve, we talked about a branch that goes 7 into the supinator muscle off the 8 posterior interosseous nerve. What other 9 branches come off the posterior 10 interosseous nerve as it courses through 11 the forearm? 12 A. A branch to the abductor pollicis longus, to 13 the extensor digitorum communis, the 14 extensor pollicis longus and brevis, and 15 the extensor indicis proprius, all muscle 16 branches. 17 Q. Okay. And just take those -- let's just start 18 right here. Number six of your 19 electrodiagnostic studies, which I 20 believe is where you were referring to 21 the study of the interosseous nerve, 22 "Needle electromyography reveals three to SIMONI COURT REPORTING 43 1 four plus positive waves fibrillations in 2 the extensor digitorum communis." Is 3 that off of the interosseous nerve? 4 A. Yes, it is. 5 Q. What does that three to four positive waves 6 tell you about that nerve? 7 A. A sign of loss of nerve to the muscle. 8 Q. Okay. 9 A. It's ongoing. 10 Q. Extensor -- same thing for the extensor 11 pollicis longus? 12 A. Yes. 13 Q. Okay. And the same thing for the extensor 14 indicis proprius muscles? 15 A. Yes. 16 Q. Okay. You note that there's one motor unit 17 noted in the extensor pollicis longus of 18 normal amplitude, duration and polyphasic 19 firing at 40 hertz. 20 A. Yes. 21 Q. Would that indicate to you that there was, 22 albeit a small amount, some function left SIMONI COURT REPORTING 44 1 in the interosseous nerve distal to the 2 branch of the supinator? 3 A. Yes. 4 Q. Okay. And what muscle or function would this 5 extensor pollicis longus account for? 6 A. Extending your thumb, straightening your 7 thumb. 8 Q. When you performed a physical examination of 9 Mr. Ray at a later point in time -- 10 because I don't think you did another 11 physical exam on this date, did you? 12 A. No. 13 Q. Okay. Was that -- or did he demonstrate any 14 ability to extend his thumb? 15 A. I believe you're referring to the 3-13-2001 16 exam. 17 Q. Right. 18 A. No, he was not able to extend his thumb. 19 Q. Now, when you perform these exams with, for 20 instance, his thumb, how was that done? 21 A. By holding his thumb in my hand and having him 22 attempt to bring it up, to try to avoid SIMONI COURT REPORTING 45 1 any other muscles which he may be able to 2 try to manipulate to bring the thumb up. 3 Q. Okay. Do you have any explanation for why he 4 would be unable to move his thumb when 5 requested, even though it appears that he 6 has some, if not normal, nerve function 7 in that unit? 8 A. Well, your muscle is composed of thousands, if 9 not tens of thousands of motor units. I 10 could only find one that was working. 11 It's not uncommon to find one or even two 12 that may be working, but without any 13 significant functional strength. The 14 motor unit is a microscopic level, and it 15 simply is not strong enough. He did not 16 have enough motor units to actually make 17 it functional. 18 Q. All right. But at least as compared to his 19 12-18-98 exam -- and I'm referring now 20 back to your October 13, 1999 report -- 21 it does appear that he's had at least 22 some improvement, albeit minimal? SIMONI COURT REPORTING 46 1 A. Can you repeat the question? 2 Q. Absolutely. It was a bad question. I'm 3 referring to your October 13, 1999 4 report. 5 A. Okay. 6 Q. And you note that, at least compared to the 7 EMG testing performed on 12-18-98, you 8 found some improvement, albeit minimal. 9 A. Yes. 10 Q. And in your -- now, here's a question for you. 11 You note that there's one motor unit in 12 the extensor pollicis longus of normal 13 amplitude, duration and polyphasic firing 14 at 40 hertz. Did you find other motor 15 units in that area that were firing, but 16 maybe not at a normal amplitude, 17 duration? 18 A. No, there was only one motor unit present. 19 Q. Okay. The reason I ask is, because under 20 "Impression," you state, "Severe left 21 posterior interosseous nerve injury with 22 near complete axonal loss distal to the SIMONI COURT REPORTING 47 1 supinator, but with the presence of 2 active motor units in the extensor 3 pollicis longus muscle." And my question 4 is, you're referring to plural, as in 5 multiple units, and I'm just trying to 6 figure out the -- 7 A. Well, I actually only saw one motor unit, but 8 you have to understand the technology of 9 how the test works. It's sort of like 10 sampling. It's a sampling of the muscle. 11 You can't test every motor unit. So, 12 it's like sampling the United States and 13 finding one person voted for George Bush. 14 Well, if one voted, you assume there's 15 probably some more somewhere, but the 16 majority didn't. So, it's probably a 17 slip of the tongue in the sense that I'm 18 assuming that probably, if you rooted 19 around long enough, you'd find something 20 else, but certainly not enough to give 21 him functional strength. The importance 22 here, as the sentence states, is that SIMONI COURT REPORTING 48 1 implies that the nerve has not been 2 completely cut or completely separated, 3 at least some of the nerve is able to get 4 through. 5 Q. All right. And you don't state this in your 6 reports, but just so I'm not surprised, 7 you're not going to be offering any 8 opinions as to the mechanism of the 9 injury to this nerve? 10 A. Well, I might. I don't know. 11 Q. Okay. Well, I mean, I'm going to state right 12 now -- 13 MR. WILT: I mean, Toby, if you're 14 going to be asking him regarding mechanism of 15 injury, I'm going to object because I don't have 16 anything in any of these reports regarding 17 mechanism of injury. 18 MR. HIRSHMAN: Well, I'll tell you 19 what he's equipped to say, and if you want to 20 examine him about it, fine. 21 MR. WILT: All right. 22 MR. HIRSHMAN: Is that what you want SIMONI COURT REPORTING 49 1 me to do? 2 MR. WILT: Yes, why don't you go 3 ahead and tell me what he's equipped to say. 4 MR. HIRSHMAN: He's already told you 5 one of the things that he can establish from this 6 report, and that is that it was not cut completely. 7 Now, he can also tell you something about the 8 amount of stretching and force that might have 9 been -- that would have been necessary to cause the 10 injury, if one assumes that it was a stretch injury 11 or a traction injury. If you want to ask him about 12 that, he'll be glad to answer those questions. 13 MR. WILT: All right. I will ask 14 him about that, but clearly, I would object to this 15 at trial. 16 Q. But go ahead and tell me about the stretch, 17 and how much stretch you believe it would 18 take to cause this type of lost function 19 in the interosseous nerve. 20 A. Well, I think there's a couple possibilities 21 for what's happened here. One, you could 22 have a partial cut, or laceration, but SIMONI COURT REPORTING 50 1 not completely through the nerve. The 2 second possibility is a stretch injury, 3 or a traction injury, and the third 4 possibility would be compression injury 5 for whatever reason, pressure on the 6 nerve from swelling, or who knows. Those 7 are probably the three possibilities of 8 this nerve injury at this point. For a 9 traction injury to be this severe, it 10 would be a severe stretch over a 11 prolonged period of time or a very 12 forceful stretch enough to literally 13 separate the tubules where the nerve 14 would grow back down. Typically, a 15 traction injury, you damage the nerve 16 fibers, but they quickly regenerate, or 17 the insulation around them quickly 18 recovers and you have a recovery of the 19 nerve. For a traction injury to cause 20 permanent damage like this, it would be a 21 severe enough injury to actually separate 22 those tubules while the nerve is still SIMONI COURT REPORTING 51 1 intact, to do enough violence to the 2 nerve to prevent the nerve from 3 regrowing. 4 Q. Okay. 5 A. So, we have a severe traction here. 6 Q. All right. 7 A. If that is, in fact, the mechanism of injury. 8 Q. Well, let me ask you this: Do you have an 9 opinion, or can you state to a degree of 10 probability which one of these three 11 mechanisms caused the injury, or are 12 these just possibilities? 13 A. Those are the three possibilities. 14 Q. Okay. Can you state to a degree of 15 probability that one is more likely than 16 not the cause? 17 A. It most -- well, no. I guess it's either -- 18 no, I leave those to the hand surgeons, 19 the specialists, to say what most likely 20 caused this. 21 Q. All right. I want to go on to your report 22 of -- let me find March of this year. SIMONI COURT REPORTING 52 1 What was the purpose in the first four 2 paragraphs of this report? 3 A. To get the feeling what had transpired in the 4 two years since I -- or not quite two 5 years since I'd seen him, what kind of 6 problems he was still having, what he had 7 done, if anything, in terms of further 8 medical care for this problem, and then 9 to further identify the exact functional 10 losses he's having. 11 Q. And I'm just trying to understand specifically 12 paragraph four on this report, what 13 purpose you had in evaluating this 14 patient -- or let me put it this way: 15 What medical purpose was there in going 16 through a detailing of what Mr. Ray's 17 duties were at a job he hasn't worked at 18 in almost two years? 19 A. Well, first, he brought to my attention that 20 there was some confusion about my dates 21 when he had worked and not worked there, 22 but, too, I was trying to get a feeling SIMONI COURT REPORTING 53 1 for what he could or could not do in 2 regards to why he was brought to me, what 3 his functional abilities were, and we 4 explored his job in terms of what he 5 thought he was able to do and not able to 6 do and what his job actually involved. 7 He said he couldn't do his previous job. 8 So, I needed to know what that actual job 9 entailed. So, that's why we were 10 discussing just exactly what that job was 11 in terms of whether he could perform 12 those job duties or not. 13 Q. So, would the primary purpose of this 14 paragraph and the investigation that you 15 performed through your questioning on 16 that date have been to establish through 17 you whether or not this man could perform 18 the job that he last performed in June of 19 1999? 20 A. Yes. 21 Q. And I guess my point is, as far as evaluating 22 him functionally, from a pure physical, SIMONI COURT REPORTING 54 1 medical standpoint, this paragraph is 2 irrelevant? 3 A. Could you ask the question again? 4 Q. Sure. From strictly looking at him from a 5 medically functional standpoint -- I 6 mean, what strength does he have; what 7 can he do with his hand -- at this point 8 in time, this paragraph is irrelevant, 9 where it talks about everything that he 10 did at Rossbrough? 11 A. Irrelevant in what terms? 12 Q. In terms of medical. 13 A. In terms of his function? 14 Q. Yes. 15 A. Well, for example, if he told me that his job 16 there entailed eating cream puffs all day 17 and he told me he couldn't do that job 18 anymore, certainly, from a functional 19 standpoint, with my medical exam, I'd say 20 that this is inconsistent. I needed to 21 show a consistency in his findings. Or 22 certainly, if my impression from a SIMONI COURT REPORTING 55 1 physical standpoint would be that he 2 couldn't do a certain task -- a 3 hypothetical, if he told me that he 4 thought that he couldn't lift 20 pounds 5 with his arm, but then I saw him doing 6 one arm pull-ups, I'd say, "Well, 7 something's wrong here." So, in that 8 sense, knowing what his job entailed and 9 what he thought he could and could not 10 do, directly related to his injury and 11 what I thought his functional capacities 12 were. 13 Q. Well, why didn't you ask him and go into all 14 this detail the first time you met him? 15 A. The first time I met him, I was looking at 16 actually trying to make a diagnosis of 17 his prognosis, of what was actually 18 occurring. 19 Q. And that's my whole purpose -- or my question, 20 is as far as evaluating this patient, 21 determining what strength, what function 22 he has in his hand, making a diagnosis of SIMONI COURT REPORTING 56 1 this is where an injury occurred, has 2 occurred, this paragraph, this fourth 3 paragraph is irrelevant. 4 A. To -- 5 Q. To those questions. 6 A. As of 2001? 7 Q. Right. 8 A. What he's capable of doing in 2001, yes, I 9 agree that doesn't directly bear on 10 today's function. 11 Q. Okay. And let's go through these. The 12 sampling of steel involving a 20 foot 13 long pipe and three foot long wand at the 14 end, functionally, I mean, do you 15 understand what that involves? 16 A. As best as my statement there states. 17 Q. Okay. 18 A. I can't say I've ever witnessed it. 19 Q. Right. 20 A. So, the answer I guess is, just what my 21 statement says. 22 Q. Do you have an opinion, as far as today, SIMONI COURT REPORTING 57 1 whether or not he would be able to do 2 something like that? 3 A. It would depend on exactly how much that would 4 weigh and whether he had to rotate a 5 sample around, and how he would actually 6 position his hands. He may or may not be 7 able to do that consistently, I should 8 say. I think once or twice, he might be 9 able to, but if he had to do it on a 10 consistent basis, he may have difficulty 11 with it. 12 Q. Why would he have difficulty? 13 A. Well, depending on how he's placing his hands 14 on the wand, he is going to have trouble, 15 one, gripping, extending, opening and 16 closing his hands, but two, although he 17 has good strength of his wrist extensor, 18 he's actually missing -- this is kind of 19 implied or obvious to a medical person, 20 but not actually mentioned. He's missing 21 the muscle in his forearm, the extensor 22 carpi ulnaris, which is one third of the SIMONI COURT REPORTING 58 1 strength in raising his wrist. So, the 2 ability to raise his wrist is going to be 3 a third diminished, roughly. If he has 4 to lift something very heavy for a 5 prolonged period of time, he may have 6 trouble with his wrist in gripping it, 7 safety issues over a long period of time. 8 It may or may not be a problem there. 9 Q. Okay. 10 A. And that's why we talked about how many times 11 he'd have to do that in an eight hour 12 period of time. 13 Q. Does he have any restrictions associated with 14 the bicep repair, from your standpoint? 15 A. Well, I defer that to the surgeon who may or 16 may not place restrictions on him for his 17 biceps repair. Depending on how good of 18 a repair the surgeon thought he obtained, 19 he may place restrictions on him. 20 Q. Well, in here, you note that he's restricted 21 to 20 pounds of frequent lifting and 22 gross lifting perhaps up to 50 pounds. SIMONI COURT REPORTING 59 1 Why would you place him on those 2 restrictions? 3 A. Due to my concerns just mentioned about 4 overworking the remaining muscles in his 5 wrist. 6 Q. Any reason Mr. Ray couldn't carry groceries in 7 a bag? 8 A. No. 9 Q. If you put a -- let me just ask you this: If 10 you're washing dishes, is there any 11 reason why he couldn't hold on to a dish 12 with his left hand and wash it with his 13 right? 14 A. No. He may have trouble picking up the dish 15 back and forth, but actually, once it's 16 in his hand, he could grip it tightly, 17 yes. 18 Q. Is there any reason Mr. Ray -- let's say can 19 he hold -- does he have enough use of his 20 hand to hold an eating utensil -- 21 A. Yes. 22 Q. -- once it's placed there? SIMONI COURT REPORTING 60 1 A. He could do that. 2 Q. Okay. And, for instance, if he needed to cut 3 something, if he had a fork in his left 4 hand, could he hold the fork and the meat 5 and use a knife to cut the meat? I mean, 6 is there any reason he couldn't do that? 7 A. Yes, he could do that. 8 Q. All right. Let's talk about your kind of 9 summary that you sent to Mr. Hirshman. 10 It's just a brief one page letter. 11 You've got, "He is unable to perform his 12 previous job duties." My first question 13 is, you have "they" as the next word. Is 14 that a "they," or should it be a "that"? 15 A. It should be "that." 16 Q. Okay. And the -- 17 A. Perhaps it's, "as they require." Maybe 18 that's -- 19 Q. I don't know. It just didn't make sense -- 20 A. Yes. It probably should be, "as they required 21 fine manipulation of wires and screws." 22 Q. All right. And I take it -- actually, let me SIMONI COURT REPORTING 61 1 just let you explain it to me. Why is it 2 that he can't manipulate wires and 3 screws? 4 A. Goes back to the idea of the synchronicity of 5 all the muscles working together and the 6 ability to manipulate rapidly. 7 Certainly, in fine movement, moving your 8 fingers up and down individually is 9 impaired. I think it's alluded to in one 10 of my reports. He actually tried to do 11 that job and just wasn't fast enough. 12 So, it's a matter of his function being 13 much below what would be a standard norm 14 for those kind of activities. 15 Q. Okay. "He is also not safe to be climbing." 16 Is that because, again, of his difficulty 17 opening his hand and grabbing the rung? 18 A. Right. If he can't open his hand and he's 19 moving quickly -- 20 Q. Right. Can he perform gross tasks such as, 21 let's say, grip a shovel and use a 22 shovel? Is that something -- SIMONI COURT REPORTING 62 1 A. Yes. 2 Q. How about carry luggage? Could he grab 3 luggage and carry luggage and throw it on 4 a bus with his left hand? 5 A. Yes. Depending on the luggage, if he had to 6 throw it, he may have some trouble with 7 his wrist extension. 8 Q. I'm saying -- 9 A. Yes, he could do that. 10 Q. You say that the weakness in his left hand 11 will limit his ability to perform most 12 jobs such as a millwright, pipe fitter, 13 electrical wiring, etcetera. And how 14 familiar are you with these type of jobs 15 and what is entailed? And mainly, I'm 16 referring to pipe fitter, because 17 electrical wiring is obvious. 18 A. I guess the answer would be, more familiar 19 than some, not as familiar as others. 20 Q. All right. What is it about being a pipe 21 fitter that you don't think he could do? 22 A. Depending on the size of the pipe, he may have SIMONI COURT REPORTING 63 1 trouble, how small he has to manipulate 2 objects for the pipes. 3 Q. All right. 4 A. Put them together. 5 Q. The larger the pipe, the better off he's going 6 to be? 7 A. Well, if it gets too large, he may not be able 8 to quickly open his hand wide enough to 9 get his hand around that big of a pipe, 10 but otherwise, yes. Basically anything 11 that requires fine motor skills is our 12 main concern here. 13 Q. Okay. And we've already touched on this 14 somewhat, good strength of his hand grip, 15 elbow flexors. How is his supination at 16 this time? 17 A. His supination strength appeared pretty good. 18 It appeared normal, I think I say in my 19 report from 3-13. I take that back. I 20 said, "Good supinator strength." So, 21 that would be a four. 22 Q. All right. Let me ask you, since you're SIMONI COURT REPORTING 64 1 familiar with pipe fitting, are you 2 familiar with -- 3 A. More than some, less than others. 4 Q. Okay. And this is probably true, too. Are 5 you familiar with what activities are 6 required when a person, let's say, is 7 lifting weights as a hobby? 8 A. Yes, I'm familiar with that -- 9 Q. All right. 10 A. -- pursuit. 11 Q. More or less than others? 12 A. Yes. 13 Q. With Mr. Ray, is there anything about his hand 14 that would make him unable to work out 15 recreationally with lifting weights? 16 A. Well, he might have trouble with the clean and 17 snatch, I believe it's called, where he 18 jerks his wrist up. 19 Q. I have trouble with the clean and snatch, but 20 go ahead. 21 A. And depending on what his surgeon thinks of 22 his biceps repair, they may not want him SIMONI COURT REPORTING 65 1 to do a lot of forceful elbow flexion. I 2 would leave that to the surgeon's 3 opinion. 4 Q. But other than that? 5 A. He should be able to work out, as well as I'm 6 familiar with it. 7 Q. All right. I would start taking you through 8 all the different exercises, but we won't 9 go there. And I guess really, when it 10 comes to that type of lifting, just so 11 we're clear, the bar of most gyms is 12 probably an inch to an inch and a half in 13 diameter. Can he grab that bar and hold 14 on reliably? 15 A. It's my opinion he would be able to handle a 16 standard bar, yes. 17 Q. All right. Thank you. You mention on the 18 body of your report, this part -- 19 A. What date are we on? 20 Q. We're still on 3-13. 21 A. Okay. Yes. 22 Q. "He also has no confidence in the arm for SIMONI COURT REPORTING 66 1 carrying objects." I want to explore 2 this for a second. Have you treated 3 other patients who have ruptured a, let's 4 just say, bicep? Is that a "yes" or 5 "no"? 6 A. That's a yes. Sorry. I was waiting for a 7 question, but I guess that was the 8 question. 9 Q. Yes. And when you treat patients like that, 10 is that a common finding, that the 11 patients lose some confidence in their 12 arm and its ability to lift heavy 13 objects? 14 A. At times, yes. 15 Q. Okay. And the reason I ask that is, both the 16 hand surgeons that have testified in this 17 case have done bicep ruptures, have 18 talked about this, the fear. Fear 19 factor, I think, was actually -- the 20 other doctor, Mikulics, talked about 21 that, that he finds when these patients 22 rupture just the bicep, that oftentimes, SIMONI COURT REPORTING 67 1 they have a fear factor, and they're 2 afraid to lift anything heavy for fear of 3 having it occur again. 4 A. Uh huh. 5 Q. Is that at least somewhat of what you were 6 referring to there in the second 7 paragraph, second sentence? 8 A. Well, without putting words in his mouth, I 9 would say that I understood that he had 10 no confidence in his arm for carrying 11 objects. Why he had no confidence would 12 be conjecture on my part. 13 Q. All right. But in your experience in dealing 14 with patients who have had distal bicep 15 rupture, it's not uncommon for those 16 patients to lose some confidence in their 17 arm for carrying objects? 18 A. Some individuals do. 19 Q. Okay. 20 A. For heavy objects, yes. 21 Q. Okay. Did you ask him to tie his shoes? 22 A. I believe I did, but he did not tie them for SIMONI COURT REPORTING 68 1 me. 2 Q. All right. Why would he functionally be 3 unable to tie his shoes? 4 A. That goes back to that synchronicity of moving 5 your fingers in conjunction with the 6 other nerves and getting your fingers in 7 one position, flexing, extending, 8 holding. Fine motor skills again. 9 Q. And I guess I can understand why he would be 10 slower tying his shoes, but to completely 11 be unable to tie his shoes, based upon 12 the injury that you see as -- would you 13 expect him to be completely unable to tie 14 his shoes in any time period? 15 A. Well, I know some who can tie their shoes with 16 one hand. So, he's certainly capable -- 17 he would certainly be capable of tying 18 his shoes. 19 Q. All right. And we've talked about the tendon 20 transfer. You mentioned this in the next 21 sentence. Anything else that came out in 22 March 13, 2001 regarding a tendon SIMONI COURT REPORTING 69 1 transfer other than what we've already 2 discussed? 3 A. Is that a question or a statement? 4 Q. Yes. Was there anything else other than what 5 we've already discussed? 6 A. Can you repeat the question? 7 MR. HIRSHMAN: I don't understand 8 the question. 9 Q. There you go. The question is, we've 10 discussed tendon transfers and what you 11 recommended to him, why he didn't want to 12 do it. I'm just going through your March 13 13, 2001 report. You have a sentence in 14 here regarding -- just to be thorough, my 15 question is, is there anything else other 16 than what we've already discussed 17 regarding your discussion with him in 18 2001? 19 MR. HIRSHMAN: About tendon 20 transfers? 21 MR. WILT: About tendon transfers. 22 MR. HIRSHMAN: Objection. SIMONI COURT REPORTING 70 1 A. About why he would not or would proceed with 2 it is the question? 3 Q. Right. 4 MR. HIRSHMAN: Note my objection. 5 A. Well, I'll repeat what I think was the 6 understanding as of this date so I make 7 sure we cover the bases. He was 8 concerned about losing any function he 9 had remaining, and he felt that since you 10 couldn't guarantee him return of function 11 or a good function, that he was unwilling 12 to risk any of the remaining function 13 that he had, to take that chance at this 14 time. 15 Q. All right. Next paragraph, you discuss with 16 him his job as a security guard, 17 obvious -- maybe you do, but are there 18 any limitations or reasons he can't 19 perform his job as a security guard? 20 A. Well, assuming he's not using a firearm with 21 his bad hand, I think he'd be okay. 22 Q. Okay. SIMONI COURT REPORTING 71 1 A. At least in my understanding of the job of a 2 security guard. 3 Q. Next you talk about how he built and 4 programmed robots and small tedious work. 5 The next sentence says, "He was let go as 6 he was unable to perform to his boss's 7 expectations." I take it that's 8 something he just related to you? 9 A. That's correct. 10 Q. Did he provide you with any documentation as 11 to -- to support that that's why he was 12 let go? 13 A. No, nor did I request it. 14 Q. All right. Down here, paragraph five, 15 psychosocially, when he presented in 16 March of 2001, was he more upset and 17 angry than he was in September of 1999? 18 A. Yes. 19 Q. And just tell me what your understanding is as 20 to why he had this mood change. 21 A. Well, as I stated, he was angry, particularly 22 due to the fact that he was unable to SIMONI COURT REPORTING 72 1 earn the same amount of money that he was 2 capable of prior to the injury. He 3 thought that his finances had suffered 4 significantly -- 5 Q. Okay. 6 A. -- due to this. 7 Q. In March, you note that he complains of 8 numbness in the web space, I think 9 between the thumb. 10 A. Right. 11 MR. HIRSHMAN: Where are you? 12 THE WITNESS: At the very top. 13 MR. WILT: I was going to say, I 14 couldn't tell you right now. I'm just going from 15 recollection. 16 MR. HIRSHMAN: Okay. 17 Q. And that's a new finding compared to 1999, 18 isn't it? 19 A. Yes. 20 Q. Any explanation as to what would cause this 21 new numbness? 22 A. As in conjecture? You mean as in -- other SIMONI COURT REPORTING 73 1 than examine him any further to determine 2 exactly the cause of his numbness, but 3 there certainly is a differential. 4 Q. Well, what is the differential? 5 A. A differential would be a compression of the 6 superficial radial nerve, or a pinched 7 nerve in the shoulder, or really anywhere 8 along the radial nerve potentially or in 9 the brachial plexus or in the neck. Less 10 likely a possibility would be a CNS or a 11 brain or spinal cord problem. 12 Q. I take it as you sit here today, though, you 13 don't have an opinion to a degree of 14 probability what was causing the numbness 15 in the web space? 16 A. His perceived numbness? 17 Q. His perceived numbness. 18 A. No. On his examination, he feels that it is 19 diminished, but it was still certainly 20 present. 21 Q. Okay. How many patients that have suffered a 22 distal bicep rupture have you seen in SIMONI COURT REPORTING 74 1 your practice? 2 A. Oh, more than ten, less than a hundred. Is 3 that accurate enough? 4 Q. That's pretty wide. 5 A. That's pretty wide. I don't keep accurate 6 track of -- oftentimes, I'll see a 7 patient that doesn't even know they have 8 a biceps tendon rupture. I'll make a 9 comment to them, a diagnosis while I'm 10 doing something else. So, it's hard to 11 keep track. 12 Q. How about this: How many patients have you 13 seen during your career who have had a 14 distal bicep rupture repair? 15 A. Less than ten. 16 Q. Okay. Have you ever treated a patient who has 17 had a distal bicep rupture repair who, 18 during the operation, suffered any type 19 of complication? 20 A. I certainly have seen individuals who have 21 pain following their correction. I have 22 not seen any, to my knowledge, that had SIMONI COURT REPORTING 75 1 nerve injury following their repair. 2 Q. Okay. 3 A. Other than Mr. Ray, of course. 4 Q. Right. And as far as the pain, has anybody 5 ever had -- or come to see you who has 6 had a distal bicep rupture repair who 7 felt to any degree debilitated by the 8 pain? 9 A. Yes. 10 Q. All right. Describe for me the circumstances 11 surrounding that. 12 A. That's typically why a person would seek care 13 for a painful condition, is because they 14 felt it was debilitating them. I can't 15 give specifics, but that's why they seek 16 medical care, because they feel that the 17 pain is in some way giving them trouble. 18 Q. Did you form an opinion with that patient as 19 to why they were having significant pain 20 associated with a repair as compared 21 to -- I'm assuming most patients don't 22 feel that the pain is debilitating. SIMONI COURT REPORTING 76 1 A. Well, I'm not sure if I have a specific 2 patient in mind that you are referring 3 to, but -- so, it's hard for me to 4 formulate an opinion. Sometimes it's due 5 potentially to scar tissue, sometimes 6 it's due to what they're doing, maybe not 7 directly related to the repair. 8 Oftentimes, occupational injury, people 9 who are doing repetitive work and have 10 continued pain. Workers' Comp injury. 11 Why they have pain is sometimes also a 12 mystery. 13 Q. Okay. Is the interosseous nerve recognized to 14 be a more fragile or sensitive nerve than 15 usual? 16 A. Not to my knowledge. 17 Q. Okay. Is it true in studying nerve injuries 18 that oftentimes, a nerve can be injured 19 with -- or not oftentimes, but isn't it 20 possible that nerves can be injured even 21 with, quote, "usual and normal 22 manipulation," for reasons that are not SIMONI COURT REPORTING 77 1 completely explainable? In other words, 2 some people's nerves, for whatever 3 reason, are just unusually sensitive and 4 they have a bad result? 5 A. Can you repeat the question? You kind of lost 6 me there. 7 Q. Sure. In studying nerves and nerve injuries, 8 is it fair to say that sometimes nerves 9 have an exaggerated response to what's 10 usually considered to be normal 11 manipulation or usual manipulation or 12 retraction? 13 A. Not that I have ever seen referred to in the 14 literature. 15 Q. Okay. Let's talk about literature. What 16 literature do you commonly refer to or 17 read? 18 A. Orthopedic literature, "Muscle and Nerve" is 19 exclusively dedicated to muscle and nerve 20 injuries, but something like JBJS, 21 "Journal of Joint and Bone Surgery," 22 "Archives of Physical Medicine and SIMONI COURT REPORTING 78 1 Rehab," various other journals. The 2 literature that I think comes to mind, 3 first off, for that kind of injury, 4 traction, hip -- has to do with hip 5 replacements, and it's been pretty well 6 studied about how much traction it 7 requires for an injury to occur. 8 Certainly, there's a slight range. Some 9 people get lucky, but it's pretty well 10 specified how safe, how much you can 11 stretch, in this case, the femoral nerve 12 or sciatic nerve while placing a new hip 13 in. That's been pretty well studied. I 14 haven't seen or recall anywhere in the 15 literature where somebody would state 16 that some nerves are -- have an 17 exaggerated response to that. It's 18 pretty defined. Now, certainly, in cases 19 of people who have nerve problems, 20 diabetic neuropathies, other 21 neuropathies, those nerves would be more 22 sensitive to injury, but in the case of a SIMONI COURT REPORTING 79 1 quote, unquote, "healthy nerve," I'm not 2 familiar with any statement that some 3 people's nerves are just more sensitive. 4 Q. Okay. In dealing with the nerves of the 5 forearm and arm and regarding their 6 sensitivity to traction or retraction, is 7 that something that you would consider -- 8 or would defer to the hand surgeons who 9 are testifying in this case? 10 A. What was the question? 11 Q. Okay. As to the sensitivity to traction or 12 retraction of nerves in the hand and the 13 arm, is that something that you would 14 defer to a hand surgeon regarding -- 15 A. Yes. 16 Q. The journals that you listed for me before, 17 are those journals that you regularly 18 refer to in your practice? 19 A. Yes. 20 Q. Any textbooks? 21 A. Yes. 22 Q. Go ahead. List them. SIMONI COURT REPORTING 80 1 A. I have to go in the room and look at the names 2 of all the different textbooks. 3 Q. I'm sure -- want to run in there real quickly? 4 That would be fine with me. 5 A. I'll be right back. 6 Q. We're almost done anyway. 7 (OFF THE RECORD) 8 A. "Clinical Mechanics of the Hand," third 9 edition, by Paul W. Brand and James M. 10 Hollister. 11 Q. Just go through them and list them. Thank 12 you. 13 A. "Entrapment Neuropathies," by David M. Dawson, 14 Mark H. Hallett, Louis H. Millender, the 15 second edition I have a copy of. 16 "Physical Medicine and Rehabilitation," 17 edited by Randall L. Braddom, second 18 edition. "Sports Injury Assessment and 19 Rehabilitation," David C. Reid. 20 "Electrodiagnosis of Nerve and Muscle 21 Principles and Practice," by Jun Kimura, 22 and his new edition which I recently SIMONI COURT REPORTING 81 1 received, third edition. "Diagnosis and 2 Management of Peripheral Nerve 3 Disorders," by Jerry R. Mendell, John 4 Kissel and David R. Cornblath, and 5 "Practical Electromyography," third 6 edition, Ernest W. Johnson and William S. 7 Pease. 8 Q. All right. And those textbooks that you just 9 listed for us are textbooks that you keep 10 in and refer to in your office? 11 A. Yes. 12 Q. Okay. A couple more questions. In looking 13 through your report -- I'm referring to 14 the 9-28 visit as compared to the 3-13-01 15 visit -- you found on 9-28 that he had a 16 four negative to four wrist extensor, and 17 3-13, you found a four positive to a 18 negative five wrist extensor. That would 19 indicate some improvement? 20 A. It would imply that, although scientifically 21 speaking, the minuses and positives don't 22 bear out to repeated testing. So, it's SIMONI COURT REPORTING 82 1 just an impression one way or the other, 2 but in reality, looking at the four out 3 of five strength is what you would say 4 from a scientific perspective. 5 Q. So, in looking at this overall, as far as his 6 wrist extensor, can we say that any 7 weakness that he has in the wrist 8 extensor is minimal? 9 A. Yes. 10 Q. Okay. Next we have the elbow flexors there. 11 In September of '99, you have four plus 12 to five minus, and March of 2001, you 13 have five out of five. 14 A. Yes. 15 Q. To what do you attribute that improvement, if 16 anything? 17 A. It could be a variety of reasons. More 18 confidence perhaps, as you pointed out 19 before, but he just seemed stronger. 20 Maybe just more exercise with the arm. 21 We're looking at the biceps tendon repair 22 in that case, and it appears he has an SIMONI COURT REPORTING 83 1 excellent result from that. 2 Q. Would the injury to the bicep -- would that 3 affect a patient's ability to supinate? 4 A. I believe it's pronate. 5 Q. Okay. Distal bicep rupture -- 6 A. Reciprocal actions. 7 Q. Pronation or supination? 8 A. I guess you're right, supination, yes. 9 Q. All right. 10 A. Sorry. 11 Q. So, my next question goes to the -- well, 12 actually, not specifically, but the wrist 13 supinators, you have in September of 14 1999, zero to one, and March of -- 15 actually, I don't think you listed a 16 number to it, but you did put that the 17 supination was good. 18 A. Right. 19 Q. To what do you attribute that fairly dramatic 20 improvement? 21 A. Could be the improvement, as you mentioned, 22 from the biceps tendon repair. SIMONI COURT REPORTING 84 1 Q. Would you expect that much improvement, I 2 think, in September of -- 3 A. Not typically, no. It's surprising that he 4 appeared to be so weak, his supinator, on 5 the first examination. 6 Q. All right. Do you have any opinion today as 7 you sit here as to why he was so weak in 8 September of 1999 in his supination mode? 9 A. No. 10 Q. Have you discussed with Mr. Hirshman about 11 testifying at the trial in this matter 12 next week? 13 A. Yes. 14 Q. And I assume that you are going to make 15 yourself available to do so? 16 A. Yes, God willing. 17 Q. You're going to give me a CV before we leave 18 aren't you? Oh, there it is. 19 MR. HIRSHMAN: You've got one. 20 Q. Doctor, are there any other opinions that you 21 have regarding Mr. Ray, his prognosis and 22 any evaluation of his injury, other than SIMONI COURT REPORTING 85 1 what is contained in your reports and/or 2 what we've discussed here today? 3 A. I don't believe so. 4 Q. When you're asked to evaluate patients -- 5 strike that. When attorneys ask you to 6 evaluate their clients for litigation, 7 generally are these plaintiff's attorneys 8 or injured patient's attorneys, or are 9 these defense attorneys, do you know? 10 A. I don't make that requirement for seeing them. 11 It's probably more the plaintiff. I 12 certainly have seen defendants in this 13 case. 14 Q. Okay. In what type of circumstance have you 15 had the opportunity to evaluate an 16 injured person on behalf of a defendant? 17 A. Looking at their functional status. 18 Apparently, there was some concern with 19 the -- apparently, plaintiff's side was 20 over-exaggerating their functional 21 impairments, and they wanted another 22 expert opinion. SIMONI COURT REPORTING 86 1 Q. Can you tell me the names of some of the 2 defense counsel for whom you have 3 evaluated injured claimants? 4 A. No, not off the top of my head, I could not. 5 I can't even usually tell you the 6 plaintiff's counsel. Oftentimes, I'm 7 confused as to who I'm working for. It's 8 not a requirement for what I do. 9 Q. Have you ever worked for Mr. Hirshman before? 10 A. Off the record for a moment. 11 (OFF THE RECORD) 12 A. Not to my knowledge. 13 Q. How much have you charged the Plaintiffs for 14 your time up to now? 15 A. For my time, or for my examinations? 16 Q. Actually, you know what? Bad question. How 17 much have you charged the Plaintiffs or 18 Mr. Ray's counsel for your time and your 19 examinations or anything else you have 20 done in regards to this case? 21 A. I'm not sure if I have all of the exact 22 numbers in front of me, but I think I can SIMONI COURT REPORTING 87 1 come up with a pretty close estimate. 2 Q. Okay. 3 A. I believe for the initial evaluation and EMG 4 nerve conduction studies, that was a 5 total of 1,043. That's for the 9-28 and 6 10-13-99 evaluation and studies, and then 7 the follow-up eval on 3-13 of this year 8 was $75, and our brief meeting before 9 this was $300, and I believe this is -- 10 that meeting before, I believe that was 11 probably a $300 meeting as well, but I'm 12 not sure on that last value, but I think 13 that's my total charges up to this point. 14 Q. I think I was charged for -- what was it? 15 What was the charge, 1,350? 16 A. For two hours, yes. 17 Q. For two hours. What is included in that? Is 18 that just the two hour time, or does that 19 pay for anything else? 20 A. That just pays for my two hour time. 21 Q. All right. Did you review any records or 22 spend any time getting prepared for the SIMONI COURT REPORTING 88 1 deposition prior to today? 2 A. I reviewed my notes over lunch today, and I 3 believe I received a copy of a deposition 4 taken on Dean Sotereanos, which I read. 5 Q. Okay. Does that -- what information, if any, 6 did that provide you regarding your 7 opinions? 8 A. None today. That was requested, and I 9 received it in the mail. Attorney 10 Hirshman asked me to read it before the 11 actual trial date, but I happened to read 12 it before the deposition today just 13 because I had some time at lunch. 14 Q. Do you disagree with Dr. Sotereanos' opinions 15 in any way? 16 MR. HIRSHMAN: I'm going to object 17 to that. 18 A. I don't know. I didn't read point by point to 19 look at it that way. 20 Q. Well, as you sit here today, is there any -- 21 since you just reviewed it, is there any 22 parts of his deposition testimony that SIMONI COURT REPORTING 89 1 you disagree with or take issue with? 2 MR. HIRSHMAN: Same objection. 3 A. He's a hand surgeon. I'm a physiatrist, an 4 electrodiagnostic medicine doctor. We 5 have two different areas of interests and 6 expertise. So, the answer is no. 7 Q. All right. Have you reviewed any other 8 depositions? 9 A. For this case? 10 Q. Yes. 11 A. No, not that I know of. 12 Q. Any idea why Mr. Hirshman provided you only 13 the deposition of the Defendant's expert, 14 Dr. Dean Sotereanos? 15 A. I have no idea. 16 Q. Did you discuss with Mr. Hirshman 17 Dr. Sotereanos' deposition and his 18 opinions? 19 A. I believe I mentioned to him that I had read 20 it, maybe made several comments, but 21 nothing -- we didn't discuss it formally, 22 no. SIMONI COURT REPORTING 90 1 Q. What were some of the comments that you made? 2 A. I don't know if I can recall -- 3 Q. Did you write anything in the deposition? 4 A. No, there's no writing in the deposition. I 5 think I commented that he was talking 6 about cutting the supinator muscle, and I 7 said, "Boy, did they do that during 8 surgery?" I think I said that. I can 9 recall one of the comments I made, not 10 knowing exactly the operative technique. 11 Q. Sure. 12 A. Probably not much more than that or along 13 those lines. 14 Q. Okay. Let me see something here. In your 15 chart, Doctor, there's a couple things 16 I'm going to have copied, but I don't 17 want to copy the whole thing. You have 18 here a handwritten note dated 3-13-01. 19 I'm assuming that all the information 20 contained in that note is essentially 21 contained in this narrative dated that 22 same date? SIMONI COURT REPORTING 91 1 A. That would be correct. 2 Q. All right. And the narrative I'm referring to 3 is not the letter to Mr. Hirshman dated 4 that same date? 5 A. That's correct. 6 Q. All right. You have here, I think, maybe this 7 isn't in your report, but I think you're 8 referring to a decreased ability to 9 button; is that right? 10 A. Where are you pointing to? 11 Q. I lost my place. Let me see. 12 A. Decrease in ability to button. 13 Q. Okay. What are you referring to there? 14 A. The ability to button a shirt. 15 Q. Okay. Decreased, was he still able to do so, 16 albeit possibly more slowly than he would 17 like? 18 A. Yes. 19 Q. Okay. 20 A. That's my understanding. 21 MR. WILT: Okay. That's all I have. 22 Thank you very much. SIMONI COURT REPORTING 92 1 THE WITNESS: You're welcome. 2 (DEFENDANT'S EXHIBIT A MARKED FOR IDENTIFICATION) 3 (WHEREUPON THE DEPOSITION OF JAMES P. KLEJKA, M.D. 4 WAS CONCLUDED AT 3:28 PM AND SIGNATURE WAIVED) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SIMONI COURT REPORTING 93 1 REPORTER'S CERTIFICATE 2 I, Wendy A. Klein, a Notary Public within and 3 for the State of Ohio, duly commissioned and 4 qualified, do hereby certify that the above-named 5 JAMES P. KLEJKA, M.D. was by me first duly sworn to 6 testify the truth, and that this deposition was 7 written in the presence of the witness and by me 8 transcribed, and that the deposition was taken at 9 the time and place in the notice specified. 10 I certify that I am not of counsel or relative 11 to either party or otherwise interested in this 12 action. 13 I further certify that the above and foregoing 14 is a true and complete transcript of all the 15 testimony and proceedings had in this deposition, 16 as shown by stenotype notes written in the presence 17 of the witness at the time of this deposition. 18 IN WITNESS WHEREOF, I have set my hand and 19 Seal of Office at Warren, Ohio, this 25th day of 20 April, 2001. 21 ______________________________________ Wendy A. Klein, Notary Public 22 My Commission Expires 1-10-02 SIMONI COURT REPORTING