0001
 1                STATE OF OHIO
 2              COUNTY OF CUYAHOGA
 3
 4
 4
 5 ROBERT PAOLONI, A MINOR,       * CIVIL ACTION
 5 ET AL                          *
 6                                *
 6                                * NO. 32-7020
 7                                *
 7                                *
 8 ERAST HAFTKOWYCZ, M.D., ET AL  *
 8                                *
 9  *  *  *  *  *  *  *  *  *  *  *
 9
10
10
11           Deposition of DAVID KLINE, M.D.,
11 taken in HIS OFFICE AT 1542 TULANE AVENUE,
12 Seventh Floor, New Orleans, Louisiana,
12 taken on Friday, the 15th day of May, 1998.
13
14 APPEARANCES:
15   
16      LANCIONE & SIMON
16      (BY:  JOHN G. LANCIONE, ESQ.,)
17      1300 EAST NINTH STREET
17      1717 BOND BUILDING
18      CLEVELAND, OHIO  44114-1503
18
19           FOR THE PLAINTIFF
20
21
21      REMINGER & REMINGER
22      (BY:  MARILENA DeSILVIO, ESQ.,)
22      13 ST. CLAIR AVENUE, SUITE 700
23      CLEVELAND, OHIO  44114
23
24           FOR THE DEFENDANT,
25               ERAST HAFTKOWYCZ, M.D.
25
0002
 1 APPEARANCES CONTINUED:
 2
 2
 3      ARTER & HADDEN
 3      (BY:  JEFFREY A. HEALY, ESQ.,)
 4      925 EUCLID AVENUE
 4      1100 HUNTINGTON BUILDING
 5      CLEVELAND, OHIO  44115-1475
 5
 6           FOR THE DEFENDANT,
 7             FAIRVIEW HOSPITAL
 7
 8 
 9 REPORTED BY:
10      LINDA GAUTREAUX
11      Certified Court Reporter
11
12
12                  *   *   *
13              EXAMINATION INDEX
14                                       Page
15       BY MS. DISILVIO. . . . . . . . . 4
16       BY MR. LANCIONE. . . . . . . . . 26
17       BY MS. DISILVIO. . . . . . . . . 30
18                    * * *
19              INDEX OF EXHIBITS
20
21 Exhibit No.  1. . . . . . . . . . . . 24
22    Note to: To Whom it May Concern
23    from Dr. Kline, 3/23/98
24
25
0003
 1            S T I P U L A T I O N
 2
 3      It is stipulated and agreed by and
 4 between counsel for the parties hereto that
 5 the deposition of the aforementioned witness
 6 is hereby being taken under the Louisiana
 7 Code of Civil Procedure, Article 1421, et 
 8 seq., for all purposes, in accordance with
 9 law;
10      All formalities, including the reading
11 and signing of the transcript by the
12 witness, are hereby waived;
13      All objections, except those as to the
14 form of the question and the responsiveness
15 of the answer, are hereby reserved until
16 such time as this deposition, or any part
17 thereof, may be used or sought to be used in
18 evidence.
19
20                    * * *
21
22      LINDA GAUTREAUX, Certified Court
23 Reporter, State of Louisiana, officiated in
24 administering the oath to the witness.
25
0004
 1              DAVID KLINE, M.D.
 2 after having been first duly sworn by the
 3 above-mentioned certified court reporter,
 4 was examined and testified as follows:
 5 EXAMINATION BY MS. DISILVIO:
 6      Q.   Good afternoon, Doctor -- it is
 7 Dr. Kline?
 8      A.   Yes.
 9      Q.   Could you please state your full
10 name for the record?
11      A.   David G. Kline.
12      MR. LANCIONE:
13           Does anyone have an objection to
14 my looking at Dr. Kline's records at this
15 point?
16      MR. LANCIONE:
17           No.  I would like the record to
18 show that this deposition is taken on behalf
19 of the Defendant, Dr. Haftkowycz.
20  (Whereupon, an off-the-record discussion
21 was held, the time being 1:38.)
22 EXAMINATION BY MS. DISILVIO:
23      Q.   The purpose in taking your
24 deposition today is to learn a little bit
25 about the care and the treatment that you
0005
 1 gave to Bobby Paoloni, in connection with
 2 the nerve graft surgery that you performed.
 3      A.   All right.
 4      Q.   Your notes indicate that the first
 5 time you saw Bobby was on January 13, 1997.
 6 Is that accurate?
 7      A.   I think that is correct, yes.
 8      Q.   At that time, is it fair for me to
 9 say that you were evaluating Bobby to
10 determine whether or not he was a proper
11 candidate to have a nerve graft surgery?
12      A.   Well, by saying, "nerve graft,"
13 you imply that is the only thing we do. The
14 nerve graft is what is done when we find we
15 can't find things that are regrowing well
16 enough to just clean up and leave alone, to
17 have exploration of the plexus or not.
18 There is a series of steps.
19      Q.   Let's backtrack, if I am using the
20 word improperly, "nerve graft surgery."
21      A.   You first have to look at the
22 plexus, evaluate that, and based on that,
23 make a decision for or against grafts.
24      Q.   So to rephrase the question --
25      A.   Nerve graft procedure to evaluate
0006
 1 for nerve grafts; that would imply that is
 2 all that is done.  That is incorrect.
 3      Q.   The nerve graft surgical procedure
 4 begins with your opening up the area of the
 5 brachial plexus or the area that is injured.
 6 You do some EMG conduction to determine
 7 whether or not there is indeed electrical
 8 impulse also in that area?
 9      A.   Correct.
10      Q.   Based upon those findings, you
11 then make a decision as to whether or not
12 you are going to go ahead and do a graft?
13      A.   Right.  In some cases we do; some
14 we don't.
15      Q.   If I can go back to my original
16 question.  On January 13, 1997, when you
17 first saw him, were you at that time trying
18 to determine whether or not he was a
19 candidate for this procedure, this surgical
20 procedure?
21      A.   For exploration of the plexus --
22 yes, that was one part.  This was the first
23 time we were seeing him, of course, so we
24 wanted to see what his loss was, what his
25 problem was.
0007
 1      Q.   If I am correct in understanding
 2 your notes at the conclusion of this visit,
 3 it was your opinion that indeed he was a
 4 candidate for the exploration?
 5      A.   Really, I think you would have to
 6 go back and say we felt that since the child
 7 was nine months of age and since biceps
 8 function was doubtful, as well as
 9 malfunction involving fingers, that
10 exploration would be in order.  However, the
11 child had a rather persistent cough,
12 elevated white count, so we decided we will
13 have to let that take care of itself, bring
14 him back.
15      Q.   But for the fact that Bobby was
16 sick and had a cold and couldn't be cleared
17 for this exploration surgery that could or
18 could not result in nerve graft, you had
19 concluded that he was a candidate for this
20 surgery?
21      A.   Yes, because he was at nine months
22 of age, yes.
23      Q.   Doctor, I understand that you are
24 one of the pioneers or gurus in this field.
25 What is the purpose of this type of
0008
 1 exploration that may result, as it did, in a
 2 nerve graft surgery?
 3      A.   Well, it is to try and improve
 4 function.  If time and Mother Nature are not
 5 doing their job, then sometimes we have to
 6 intervene.
 7           The difficulty is that when we do
 8 have to intervene under these circumstances,
 9 the worst cases in there are the very ones
10 that it is hardest to get any results with.
11 It is that type of tough situation.
12      Q.   Doctor, you would agree with me
13 that there are cases that are even worse;
14 where the individual is not even considered
15 a candidate for the exploration?
16      MR. LANCIONE:
17           Objection, leading.
18      THE WITNESS:
19           Yes, that is true.
20 EXAMINATION BY MS. DISILVIO:
21      Q.   Doctor, are there cases that are
22 even worse, where an individual is not a
23 candidate for exploration?
24      A.   Yes.  That is true.
25      Q.   In your notes, or I should say in
0009
 1 your letter to Dr. Barrettson of January 17,
 2 you indicate that when you saw Bobby on
 3 January 13, he had fairly active extension
 4 of the arm at the elbow and some ability to
 5 use the deltoid and to abduct the shoulder.
 6      A.   Well, we couldn't be sure whether
 7 it was the deltoid or something else, but he
 8 had a little ability to pull the arm away
 9 from the side.  But his triceps rated three,
10 and that is the ability to extend the arm
11 against gravity and a little bit of
12 pressure, but not much pressure.
13      Q.   An EMG was also performed by a
14 colleague of yours on that date?
15      A.   Dr. Sumner, yes.
16      Q.   What do those EMG findings show?
17      A.   All right.  It showed a brachial
18 plexopathy secondary to -- by history --
19 obstetrical separation.  It showed severe
20 chronic partial denervation in muscles like
21 the deltoid, triceps, biceps, flexor of the
22 fingers and hand innervation, which were the
23 muscles I chose to sample, because they are
24 muscles of the arm.
25      Q.   In that EMG, it also showed
0010
 1 partial reinnervation of the right brachial
 2 plexus?
 3      A.   Dr. Sumner thought there might be
 4 a few fibers coming into a few of those
 5 muscles like triceps -- would be one of the
 6 better ones.
 7      Q.   So that, indeed, that finding was
 8 present of partial reinnervation to the
 9 right brachial plexus?
10      A.   It only takes a few hundred fibers
11 to do that, and to have really good
12 function -- thousands of fibers.  You have
13 to weigh the EMG on that fashion at this
14 point in time.
15      Q.   Let me see if I understand the
16 process that occurs with the brachial plexus
17 condition in Bobby.  Once that condition
18 manifests itself after birth, am I accurate
19 that at some point in time, in some
20 children, that there is some improvement
21 spontaneously from Mother Nature, not from
22 any intervention medically?
23      A.   I would say in the majority of
24 children that is the case.
25      Q.   That is what happened in Bobby's
0011
 1 case; he had some improvement in his
 2 condition, which is demonstrated by the
 3 partial reinnervation as noted on the EMG of
 4 January 13?
 5      A.   Particularly to something like the
 6 triceps, yes, because when he was born, he
 7 had no use of the arm at all.
 8      Q.   Then by the time you saw him, you
 9 noted that he had some fairly active
10 extension of the arm at the elbow?
11      A.   Correct.
12      Q.   Am I also accurate in saying that
13 based on all of the findings on that visit,
14 you then concluded that improvement could be
15 achieved by surgery through exploration and
16 determining whether a nerve graft was
17 necessary?
18      A.   I think you are overstating your
19 case.  I wish that were was so.  No -- what
20 we felt was that:  One, he had had a serious
21 injury; and two, although he had had some
22 very mild recovery basically in the triceps,
23 that overall his recovery was very poor for
24 nine months of age, and that there didn't
25 seem to be much choice but to surgically
0012
 1 explore the plexus, evaluate it, and see
 2 what might do better, perhaps with a repair.
 3           So it was more along those lines.
 4 And in the patients that we see with birth
 5 paralysis -- and our panel now includes
 6 about 170 such infants and children -- we
 7 only wind up operating on 10 percent of
 8 them, because most of the time the
 9 improvement is enough so that we don't feel
10 an operation will add that much additional
11 to it.
12           But when the loss is particularly
13 severe, and when it doesn't improve by this
14 point in the child's age, then we recommend
15 operation.  We are very conservative about
16 who we recommend it for, but in Robert's
17 case, it seems like he was part of that 10
18 percent.
19      Q.   Certainly, Doctor, you wouldn't
20 recommend surgery if there was no likelihood
21 of improvement?
22      A.   No.  But then again, I am not God,
23 so I can't always predict those things.
24      Q.   Doctor, you indicated to me that
25 you had no choice but to recommend surgery
0013
 1 for Bobby.  The other option would have been
 2 not to recommend it if, indeed, there was no
 3 hope of any improvement; is that correct?
 4      A.   Correct.
 5      Q.   Then I understand that surgery
 6 went forward on May 7, when Bobby was 17
 7 months of age?
 8      A.   That is correct.
 9      Q.   That surgery was done under your
10 services?
11      A.   Yes.
12      Q.   It is my understanding -- and
13 please correct me if I am wrong -- from your
14 operative note that when you began your
15 surgical procedure and tried to test for
16 some nerve activity as you discussed, the
17 exploration phase of the surgery, that you
18 did indeed find some regenerative
19 potentials; is that correct?
20      A.   Yes.
21      Q.   Then am I also correct in
22 concluding that based upon your finding of
23 regenerative potential, you concluded that a
24 graft would be in order for this young boy?
25      A.   No, quite the other way.  When the
0014
 1 regeneration is adequate, when we see a lot
 2 of activity, then we will leave the elements
 3 alone and not replace them with grafts, but
 4 when we do not, then we will replace them
 5 with grafts.
 6           It is a complicated process,
 7 because the plexus is a complicated
 8 structure.  There are five roots that become
 9 five spinal nerves.  The fifth and sixth
10 combine to form the upper trunk; seven makes
11 the middle trunk; eight and one form the
12 lower trunk.
13           The three trunks then each have
14 two divisions -- anterior and posterior.
15 They go to form the cords.  The cords, the
16 nerves.  They are all interrelated.  We had
17 to dissect all of that out and test all
18 parts of that.  That is basically what we
19 did, because we would dissect out the roots
20 and stimulate those and see what we could
21 record downstream.
22           So in this case, just as a
23 beginning, we found that seven wasn't even
24 attached to the spinal canal anymore.  It
25 had been pulled out, like you would pull a
0015
 1 radish out of the ground or a carrot out of
 2 the ground.  Eight and one which is below
 3 that -- they are things that go to wrist and
 4 hand and fingers.  They were scarred and
 5 stretched, and those were the findings
 6 there.  Five and six very scarred, too, but
 7 we worked them back closer to the spine.  By
 8 taking off some of the bony confines of
 9 their foramina, they looked a little
10 healthier when we came out of the spine.
11           When I stimulated the fifth
12 root -- that is, starting at the top, we
13 recorded a small NAP, but could not conduct
14 that down to the suprascapular nerve.
15      Q.   Doctor, you have told us about the
16 nerve roots that you explored.  You explored
17 five and six that looked healthier than
18 eight and one.
19      A.   Right.
20      Q.   These are the nerves that comprise
21 the brachial plexus?
22      A.   No. they are the very beginning of
23 the brachial plexus.  That is what comes out
24 of the spinal canal.  You have the trunks.
25 They were scarred, too.  And the divisions,
0016
 1 they were scarred.
 2           We are just talking about the very
 3 beginning.  That is very critical. You want
 4 to find something that you can lead out with
 5 if that is necessary.  But first you want to
 6 test that.  That is what I was trying to
 7 test.
 8      Q.   You said the word "NAP"?
 9      A.   Nerve action potential.  That is a
10 direct contracted response.  You put a
11 stimulus in a nerve.  Further downstream you
12 see if it reaches your recorded electrodes.
13 That is different from the EMG recording
14 from muscle or doing something --
15 stimulating the nerve going to muscle and
16 looking at it, but this is directly from the
17 nerve.  It is called nerve action potential.
18      Q.   When you find a recording of nerve
19 action potential, is that also known as a
20 regenerative potential?
21      A.   Not necessarily.  Let's say, if
22 part of the plexus wasn't injured at all,
23 then you would expect to find very good
24 nerve action potential, or because of the
25 peculiarity of the anatomy in the nervous
0017
 1 system, if a nerve root is injured up close
 2 to the spine, but the injury has not
 3 extended laterally -- that is, further
 4 out -- then paradoxically you get a very
 5 nice potential.
 6           That indicates a preganglionic
 7 injury.  You would need medical school
 8 exposure to neurophysiology to explain that
 9 to you in detail.  So no, it depends on the
10 nature of the response that we record, so
11 that is what I was trying to begin to take
12 you through.
13           So if you would let me do that,
14 maybe you will understand a little bit.
15           When we stimulated the fifth root
16 and recorded from the suprascapular nerve,
17 which is the branch that goes to some of the
18 shoulder but not a lot of the shoulder, that
19 had a very small response.
20           But then when we recorded from the
21 rest of what five went to, like the anterior
22 and posterior division of the upper trunk
23 and the more distal structures, we didn't
24 get good response.  When we stimulated six,
25 we could not record a NAP either from the
0018
 1 suprascapular nerve or from either division
 2 of the upper trunk or more distal nerves.
 3           Stimulation of eight and one gave
 4 us a NAP of the lower trunk as well as to
 5 medial cord, so they were reduced in
 6 amplitude and presently conducted 20 to 30
 7 meters per second, so it may have been
 8 regenerative rather preganglionic.
 9           But, of course, that is difficult
10 to be certain about, but that is most likely
11 the case.
12           What we were finding is a little
13 bit of this was regrowing.  A lot wasn't.
14 Some that which was regrowing wasn't
15 regrowing very well.  And basically we took
16 out what we thought wasn't doing as well,
17 left in some of the things that we thought
18 might have some shot or question of
19 regrowing themselves.
20           For example, five and six -- most
21 of that we replaced with grafts.  Whereas
22 eight and one, we left alone.  So eight and
23 one had an external cleaning.  That is
24 called a neurolysis.
25           We did spare a portion of the
0019
 1 input going into more distal upper trunk
 2 from five, the part going down to
 3 suprascapular nerve where we got that small
 4 response, but most of five had to be
 5 replaced by grafts.
 6           We resected all of six and its
 7 input into upper trunk.
 8           We harvested serial nerve from the
 9 lower leg, brought it up to the neck,
10 fashioned that into six grafts.  The graft
11 was 1-1/4 or 1-1/2 inches in length.  We
12 used very fine suture to do that.
13           That is the situation.  It is
14 complicated, but then it is a complicated
15 matter going over neurophysiology.
16      Q.   Doctor, taking it down to very
17 laymen's terms, because I certainly don't
18 have the intelligence or experience that you
19 do, is it fair to summarize that during the
20 course of your procedure, you left intact
21 the nerves that showed function, you removed
22 the nerves that didn't have function and
23 then you provided six grafts to supplement
24 for the nerves that you removed?
25      A.   If I could just rephrase it.  We
0020
 1 left behind what we thought might have some
 2 potential to regain function on its own with
 3 more time, took out what we thought did not
 4 have potential.
 5      Q.   When you say you left in what you
 6 thought had potential -- you thought that
 7 those nerves that you left in had potential
 8 because of the studies that you had done to
 9 measure nerve action; is that right?
10      A.   That is correct.
11      Q.   Is it also true that for Bobby and
12 other infants who undergo that type of
13 procedure, after the surgery, he is going to
14 take a couple of steps back before he takes
15 any steps forward?
16      A.   Very definitely, because all of
17 this has to be dissected out.  And so there
18 are some losses associated with it, and
19 also, it is a complex interrelated anatomy.
20           In the process of working that
21 out, there are going to be some losses.
22 Hopefully, they would be made up by the
23 grafts and whatever else.
24           But just to amplify things a
25 little bit, because I am sure it would come
0021
 1 up later, it is also a judgment about:
 2 Okay.  Let's say you want to have much more
 3 activity from eight and one that goes down
 4 to hand and fingers and wrist.  So that you
 5 do better by taking that out and replacing
 6 it with grafts than what Mother Nature might
 7 do, based on what you were able to record.
 8           The problem with that is this is
 9 the most difficult part of the plexus to get
10 to regrow, either spontaneously or with use
11 of grafts, what goes down to the hand
12 muscles.  So in this case, since there was a
13 little activity that comes along there, even
14 though they obviously were injured, it
15 seemed better to leave them behind.
16           Because had we replaced them with
17 grafts, the outcome, we know from past
18 experience with replacing that part of the
19 plexus with grafts, is not very good -- not
20 as good as replacing five and six for upper
21 arm.
22           Do you understand that?
23      Q.   I do.  Move to strike as
24 unresponsive.
25           Doctor, Bobby came back to you
0022
 1 after surgery for followup; is that correct?
 2      A.   Yes.
 3      Q.   You noted in the chart that you
 4 have before you that there is a note there
 5 or a correspondence that you directed to the
 6 physician who referred him to you for your
 7 expertise.
 8           I don't have a copy of that note.
 9 But perhaps looking at that note or telling
10 me from your memory -- what the findings
11 were during that latest visit?
12      A.   Okay.  The very last visit in
13 March -- at that time he was just a little
14 better than 10 months since the operation,
15 And we described that he had had two-thirds
16 of C5 replaced with grafts, and also all C6
17 down to divisions to cords at C7 was felt to
18 be evulsed.  C8-T1 probably had injury up
19 to -- close to the spinal cord, but also
20 might have been some regenerative activity.
21           So when we observed him, he could
22 abduct his arm forward to 30 degrees.  That
23 would be out in front of the body.  So
24 horizontal with the floor would be zero, to
25 30 degrees, would be a third of the way
0023
 1 between that and getting the arm up like I
 2 am demonstrating at a shoulder level,
 3 laterally 15 degrees.  So 90 degrees would
 4 be up horizontal to the floor.  15 would be
 5 a fifth of that.
 6           There wasn't much scapular
 7 winging, because that is sometimes a price
 8 we pay, or sometimes the child has that to
 9 begin with.  No biceps as yet.  Triceps had
10 improved to a grade four.  Pectoralis major
11 a three.  No wrist or finger motion.
12           An EMG was done, and that showed
13 minimal improvement, but there was evidence
14 of regeneration into the muscle that pulls
15 the arm up to the upper arm.
16           So we felt for that point and
17 time, that was good; pointed out that he was
18 early yet, and we will just have to see how
19 far he comes with time.  The process of
20 regrowth will be a six-year process.  He
21 would return for further followup in another
22 nine months or so.
23      Q.   Indeed, he had shown some
24 progress?
25      A.   Correct.
0024
 1      Q.   But you cannot tell us with any
 2 medical probability what Bobby's prognosis
 3 is going to be, as we sit here today?
 4      A.   Only in very general terms.  I
 5 think he will be left with some serious
 6 deficit.  I think we can be sure of that.
 7 But how severe that will be and what
 8 distribution that will take, will be -- it
 9 is too early to predict that.  In a few more
10 years, we will be able to tell that.
11      Q.   Doctor, I am showing you what has
12 been marked as Defendants Exhibit 1.
13 (Exhibit No. 1 marked for identification.)
14      A.   I have a copy.
15      Q.   Could you identify that document
16 for me, please?
17      A.   It says:  To whom it may concern.
18 I have conducted a complete examination of
19 my patient, Robert Paoloni, on the -- a
20 check mark -- day of March.  But I think we
21 are referring to the 23rd of March.  I
22 cannot give an opinion --
23      Q.   That is a document that you
24 authored, that is also part of your medical
25 chart?
0025
 1      A.   Yes.
 2      Q.   I just asked you the question as
 3 to whether or not you could tell me with
 4 probability what Bobby's prognosis was going
 5 to be.  You told me that in general terms
 6 you could tell me.  When I say his
 7 prognosis -- as we sit here today.
 8      A.   Only in the sense that we know he
 9 will be left with some deficit, but as far
10 as giving an accurate prognosis of what that
11 would be, where that will be, how severe it
12 would be, we can't do that.
13      Q.   Indeed, Doctor, you cannot tell me
14 what his prognosis is going to be?
15      A.   In those terms, you are correct,
16 we cannot.
17      Q.   That is indeed what you authored
18 in this note that we have marked as
19 Defendants Exhibit 1?
20      A.   Yes.  I also pointed out -- will
21 have a better idea of prognosis in two and a
22 half years, but certainly outlook for
23 recovery, especially to wrist, hand, and
24 shoulder are very poor.
25      Q.   But we will know with probability
0026
 1 in two-and-a-half years what that prognosis
 2 would be?
 3      A.   That's right.
 4      Q.   We don't know it today?
 5      A.   That's correct.
 6      MS. DISILVIO:
 7           Thank you very much, Doctor.  I
 8 have nothing further.
 9 EXAMINATION BY MR. LANCIONE:
10      Q.   Dr. Kline, my name is John
11 Lancione.  I represent the Paoloni family.
12      A.   Yes.
13      Q.   Doctor, in cases similar to Bobby
14 Paoloni's case, I think you stated that the
15 decision to operate is usually based upon
16 the fact that these cases are the most
17 serious cases with the most serious damage
18 to the brachial plexus; is that correct?
19      A.   For our selection, yes.
20      Q.   And that if, in your opinion,
21 after conducting testing and perhaps
22 exploratory surgery, you feel that there is
23 enough potential for regeneration, you would
24 usually decline to operate that; is that
25 correct?
0027
 1      A.   Correct.
 2      Q.   When you talk about the nerve root
 3 C7, you said it was evulsed.  That means it
 4 was torn out of the spinal cord?
 5      A.   Correct.
 6      Q.   C8 and T1, what function are they
 7 more particularly directed towards?
 8      A.   Usually most of wrist motion --
 9 sometimes all, but usually most -- finger
10 motion and the muscle function of the hand
11 and feeling on the little finger and ring
12 finger.
13      Q.   I think you said that damage that
14 you found to C8 and T1 was substantial; is
15 that correct?
16      A.   Yes.
17      Q.   And that you have not found any
18 evidence of recovery of those as of your
19 last examination?
20      A.   No clinical evidence that is on
21 examination, that's correct.
22      Q.   I want to make sure we understand
23 what you are saying when you talk about
24 Bobby's ability to move that arm.  You said
25 in a lateral motion and then in a forward
0028
 1 motion, the abduction would be -- I am going
 2 to stand and make sure I understand.
 3 Abduction would be raising the arm from the
 4 shoulder away from the body?
 5      A.   Correct.
 6      Q.   You said he could do 30 degrees of
 7 that?
 8      A.   That is in a forward direction.
 9 You are demonstrating in a lateral
10 direction -- forward 30, lateral 15.
11 Lateral is to the side.
12      Q.   He could do that, could he not,
13 without any help from anybody?
14      A.   Correct.
15      Q.   That is the only motion that he
16 could make without somebody taking his arm
17 and moving it for him; is that correct?
18      A.   Not so.  He can straighten his arm
19 out when his triceps function.
20      Q.   How does he get it into the flexed
21 position?
22      A.   Lying down, he may roll over and
23 push it out or he may pull it up himself,
24 but he doesn't substitute for triceps.  He
25 substitutes for biceps, things that don't
0029
 1 work, but the triceps is working, as is the
 2 muscle that pulls the arm to the side, the
 3 pectoralis.
 4      Q.   So he moves around good and gets
 5 that elbow flexed, then he can extend it
 6 somewhat himself in the triceps?
 7      A.   That is exactly right.
 8      Q.   Did you say that you cut out most
 9 of the sections of the upper trunk of five
10 and six?
11      A.   Correct.
12      Q.   So they showed evidence that they
13 were so severely damaged, and that is why
14 they were replaced?
15      A.   Yes.  Both looking at them and in
16 inspecting them visually and with
17 magnification and doing the electrical
18 studies, they did not look good.
19      Q.   Can you say, Doctor, with
20 reasonable medical probability, that Bobby
21 Paoloni will most certainly have a severe
22 residual defect of the plexus?
23      A.   I think most likely he is going to
24 have some defect, yes.  We just can't
25 document that at this point in time, because
0030
 1 it is too early to do that.
 2      Q.   Will he have a flail arm?
 3      A.   No.  Flail arm means there is no
 4 movement at all.  In the early months he
 5 regained some movement, so he no longer has
 6 a flail arm.  Flail arm means total
 7 paralysis.  You would have no ability to
 8 move the arm away from the side or in front.
 9      Q.   Does your note that has been
10 marked Defendants Exhibit 1 represent your
11 opinions based on probability as of the
12 present time, in part?
13      A.   I think so.
14      MR. LANCIONE:
15           I have no further questions at
16 this time.
17 EXAMINATION BY MS. DISILVIO:
18      Q.   Will you tell me where you went to
19 medical school?
20      A.   University of Pennsylvania.
21  (Whereupon, an off-the-record discussion
22 was held.)
23 EXAMINATION BY MS. DISILVIO:
24      Q.   You graduated from Pennsylvania
25 Medical School?
0031
 1      A.   Yes.
 2      Q.   What did you do after you were
 3 graduated from medical school?
 4      A.   I took an internship with a major
 5 in surgery, University of Michigan; then
 6 took a general surgery, same institution.
 7           Then I was drafted.  I spent two
 8 years, three months, 13 days, two hours, 38
 9 minutes at Walter Reed in Washington, D.C.
10 Then I returned to Michigan for a residency
11 in neurosurgery.  Then came down here as an
12 instructor in surgery in 1967.
13      Q.   When you say, "down here --"
14      A.   LSU Medical School.
15      Q.   You have remained at LSU Medical
16 School since 1967?
17      A.   Yes.
18      Q.   Doctor, I am sure you have more
19 awards, titles and accolades than we have
20 time to sit here and listen to today.  Could
21 you summarize some of those for me?
22      A.   I am a Boyd professor, and there
23 are only a few of those at LSU, even fewer
24 in the medical field, so that is the highest
25 position you can have in our university.
0032
 1           Well, I have been president of our
 2 academic society, our senior society, the
 3 oldest neurosurgery group.  I have been
 4 secretary and chairman of the American Board
 5 of Neurosurgery, our certifying group.
 6           I have served on the Residents
 7 Review Committee, founded the Louisiana
 8 Neurosurgical Society.  I served as its
 9 secretary and president as it got started.
10 I have written a lot of stuff.
11           I am old and still alive.
12      Q.   Are you teaching today?
13      A.   Yes.
14      Q.   Do you teach neurosurgery here at
15 LSU?
16      A.   Yes.
17      Q.   Do you see patients?
18      A.   Yes.
19      Q.   And taking into consideration your
20 time, is greater than 50 percent of your
21 time spent in the practice of medicine?
22      A.   Much greater.
23      Q.   Tell me how much greater than 50
24 percent is spent in the practice of
25 medicine.
0033
 1      A.   I spend probably about 10 percent
 2 administratively; 15 percent with research
 3 and research connected things, and about
 4 five percent with national or international
 5 organizations.
 6           I would think I spend about 70
 7 percent of my time in the practice of
 8 medicine.  Of course, some of that is for
 9 public care at Charity.  That is a
10 responsibility we have.  Some of it is for
11 private care.
12      Q.   I am just going to ask you a few
13 more questions, Doctor, about Bobby Paoloni.
14 I know you need to leave, and we will all be
15 able to get out of here.
16           When we were talking about C5 and
17 C6, help me understand -- those are the
18 areas that were grafted?
19      A.   Correct.
20      Q.   The portions of those nerves that
21 were not functioning were removed and a
22 graft, a nerve from the leg was placed in
23 that area?
24      A.   Yes.
25      Q.   There we are talking about the
0034
 1 upper trunk; is that correct?  Do those
 2 nerves --
 3      A.   Those two roots form the upper
 4 trunk, that's correct.
 5      Q.   Then C7 forms the middle trunk?
 6      A.   That's correct.
 7      Q.   And in Bobby's case, C7 also
 8 needed grafting; is that correct?
 9      A.   Yes.  There just wasn't anything
10 to lead it out from -- because seven had
11 been pulled out of the spinal canal, but we
12 did leave some of our grafts into what C7
13 would go to normally, in the hope that maybe
14 that would help that part of things.
15      Q.   So when talking about his surgery
16 then and the nerves and that were grafted,
17 we are talking about C5, C6 and C7?
18      A.   Well, in our terminology, if you
19 said grafts of C5, 6 and, 7 that would mean
20 hooking a graft into a proximal or medial
21 portion of 5, 6 and 7.  That wasn't the
22 case.
23           The grafts came out of the 5 and
24 6, but they went to mainly what 5 and 6 went
25 to, the divisions of the upper trunk.  But a
0035
 1 little bit we put into what 7 went to.
 2      Q.   Doctor, are you familiar with the
 3 studies done by Gilbert et al that indicate
 4 a degree of recovery when grafts are done in
 5 those particular areas?
 6      A.   Yes, very familiar.
 7      Q.   Are you familiar with the
 8 statement that if 81 young infants who had a
 9 brachial condition from birth, 76 percent of
10 that 81 had an abduction of greater than 90
11 degrees some years after surgery?
12      MR. LANCIONE:
13           Objection.
14      THE WITNESS:
15           Yes, I am familiar with that. But
16 that is based on a group of children who are
17 operated on around three months of age, and
18 so it includes those with much, much less
19 severe injuries than Robert Paoloni and
20 perhaps some that had his severity of
21 injury.
22           But it groups them all together,
23 because his philosophy -- if biceps did not
24 improve by three months, they should operate
25 on them.  He wouldn't test these things.  He
0036
 1 would just take it out.
 2           I am not being critical.  He would
 3 just take it out and replace it with grafts.
 4 Right from the beginning you are looking at
 5 a different set of patients than we operate
 6 on.
 7           So you can't expect the same
 8 results, because the patients we wind up
 9 operating on are only those that time,
10 Mother Nature, God, or whoever you want to
11 give the credit to, is not bringing back, so
12 they are much more severely injured.  You
13 can't expect the same results.
14 EXAMINATION BY MS. DISILVIO:
15      Q.   Certainly, Doctor, you wouldn't
16 disagree with me that the Gilbert study
17 included children who had a condition like
18 Bobby?
19      MR. LANCIONE:
20           Objection.
21      THE WITNESS:
22           It is just that statistically when
23 you meld those small numbers in with a
24 greater group that had less severe injury,
25 may have recovered with more time on their
0037
 1 own and not required surgery, then that is
 2 just our philosophy.  I am not saying that
 3 is right or wrong.
 4           Then that makes looking at
 5 something like how many get shoulder
 6 abduction or how many get biceps back,
 7 difficult to judge.  You can't match it up
 8 against another group who's winnowed out as
 9 the more severe group down at a later point
10 in their life.
11 EXAMINATION BY MS. DISILVIO:
12      Q.   You certainly wouldn't disagree
13 that there is a likelihood that Bobby indeed
14 may have that same type of experience and
15 recovery?
16      MR. LANCIONE:
17           Objection.
18      THE WITNESS:
19           That is possible.  I just can't
20 tell you that.
21 EXAMINATION BY MS. DISILVIO:
22      Q.   Indeed, you can't tell us one way
23 or the other, as we sit here today, what his
24 prognosis is going to be?
25      MR. LANCIONE:
0038
 1           Objection.
 2      THE WITNESS:
 3           Well, I think I have already tried
 4 to weight that.  You are right in the sense
 5 that it will be a few years before we will
 6 have good indices.
 7           But we know from dealing with
 8 Bobby so far that he had a severe injury.
 9 We found a very severe injury when we
10 operated.  We tried to do what we could do,
11 but he is probably going to be left with a
12 good deal of deficit.  How much that will be
13 and what the distribution will take, I have
14 already pointed out, I can't tell you.
15 EXAMINATION BY MS. DISILVIO:
16      Q.   Doctor, when you saw Bobby on the
17 23rd, you told me earlier when I asked you
18 some questions, that he had manifested to
19 you some improvement?
20      MR. LANCIONE:
21           Objection.
22      THE WITNESS:
23           When we saw him in March, that's
24 correct.
25 EXAMINATION BY MS. DISILVIO:
0039
 1      Q.   Would you agree with the
 2 proposition that early onset of some
 3 improvement is a good prognosticator for
 4 children like Bobby who undergo this type of
 5 surgery?
 6      MR. LANCIONE:
 7           Objection, leading.
 8      THE WITNESS:
 9           Yes.  It is certainly better than
10 not having it.
11 EXAMINATION BY MS. DISILVIO:
12      Q.   From when you saw Bobby last
13 March, he does have a prognosticator that is
14 positive?
15      A.   Correct.
16      Q.   You certainly do not change your
17 opinions as they are set forth in what has
18 been marked Defendants Exhibit 1, which is
19 the note that you authored following that
20 March 23, 1997 visit?
21      A.   The reason I wrote below that was
22 I was only offered one thing.  I was trying
23 to qualify it.  I would still point to that.
24 We will have a better idea of prognosis in
25 two and a half years, but certainly outlook
0040
 1 for full recovery, especially wrist, hand
 2 and shoulder is poor.
 3  (Whereupon, an off-the-record discussion
 4 was held.)
 5 EXAMINATION BY MS. DISILVIO:
 6      Q.   What that outlook will be, we
 7 don't know for two-and-a-half years?
 8      A.   That's correct.
 9      MS. DISILVIO:
10           Thank you very much.  I have
11 nothing further.  This deposition is over at
12 2:24.
13      (Whereupon the deposition was concluded.)
14                    * * *
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0041
 1            REPORTER'S CERTIFICATE
 2
 3      I, Linda Gautreaux, CCR, Certified
 4 Court Reporter, State of Louisiana, do
 5 hereby certify that above-named witness,
 6 after having been duly sworn by me to
 7 testify to the truth, did testify as
 8 hereinabove set forth;
 9      That this testimony was reported by me
10 in the stenotype reporting method and
11 transcribed thereafter by me on computer,
12 and that same is a true and correct
13 transcript to the best of my ability and
14 understanding;
15      That I am not of counsel, nor related
16 to counsel or the parties hereto, and in no
17 way interested in the outcome of this
18 matter.
19
20
21
22
23                _____________________________
24    
24                LINDA GAUTREAUX
25                Certified Court Reporter
25
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