1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 CATHLEEN C. LANE, etc., et al., 4 Plaintiffs, 5 JUDGE SUSTER 6 -vs- CASE NO. 322177 7 GEORGE B. KIRBY, D.D.S., 8 et al., 9 Defendants. 10 - - - - 11 Deposition of NATHAN LEVITAN, M.D., taken as if 12 upon cross-examination before Laura L. Ware, a 13 Notary Public within and for the State of Ohio, at 14 the offices of Reminger & Reminger, 113 St. Clair 15 Building, Cleveland, Ohio, at 8:15 a.m. on Friday, 16 September 3, 1999, pursuant to notice and/or 17 stipulations of counsel, on behalf of the Plaintiffs 18 in this cause. 19 20 - - - - 21 WARE REPORTING SERVICE 22 3860 WOOSTER ROAD ROCKY RIVER, OH 44116 23 (216) 533-7606 FAX (440) 333-0745 24 25 2 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. Linton & Hirshman 3 Hoyt Block Building, Suite 300 700 West St. Clair Avenue 4 Cleveland, Ohio 44113 (216) 781-2811, 5 On behalf of the Plaintiffs; 6 Richard J. Rymond, Esq. 7 Reminger & Reminger 113 St. Clair Building 8 Cleveland, Ohio 44114 (216) 687-1311, 9 On behalf of the Defendants 10 Kenneth Callahan, D.D.S. and Ronald Bell, D.D.S.; 11 Pamela S. Schremp, Esq. 12 Gallagher, Sharp, Fulton & Norman Seventh Floor Bulkley Building 13 1501 Euclid Avenue Cleveland, Ohio 44115 14 (216) 241-5310, 15 On behalf of the Defendants Richard L. Whelan, D.D.S. (Deceased) 16 and Jean Whelan, Executrix of the Estate of Richard L. Whelan; 17 Thomas S. Mazanec, Esq. 18 Mazanec, Raskin & Ryder 100 Franklin's Row 19 34305 Solon Road Cleveland, Ohio 44139 20 (216) 248-7906, 21 On behalf of the Defendants William J. Witt, M.D. 22 and EENT Associates; 23 24 25 3 1 APPEARANCES: (CONT.) 2 Roy A. Hulme, Esq. Reminger & Reminger 3 113 St. Clair Building Cleveland, Ohio 44114 4 (216) 687-1311, 5 On behalf of the Defendants Howard J. Synenberg, D.D.S. 6 and Howard J. Synenberg, D.D.S., Inc.; 7 Forrest A. Norman, III, Esq. Weston, Hurd, Fallon, Paisley & Howley 8 2500 Terminal Tower 50 Public Square 9 Cleveland, Ohio 44113 (216) 687-3223, 10 On behalf of the Defendant 11 George Kirby, D.D.S.; 12 Michele Y. Wharton, Esq. Davis & Young 13 1700 Midland Building Cleveland, Ohio 44115 14 (216) 348-1700, 15 On behalf of the Defendant Robert L. Katz, M.D. 16 17 18 19 20 21 22 23 24 25 4 1 NATHAN LEVITAN, M.D., of lawful age, called 2 by the Plaintiffs for the purpose of 3 cross-examination, as provided by the Rules of Civil 4 Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as follows: 6 CROSS-EXAMINATION OF NATHAN LEVITAN, M.D. 7 BY MR. HIRSHMAN: 8 Q. Doctor, is it Levitan? 9 A. Correct. 10 Q. Why don't you state your full name. 11 A. Dr. Nathan Levitan. 12 Q. I'm looking at some records that you've brought with 13 you here today. Are these all the records that 14 you've had an opportunity to review in this case? 15 A. Yes. I neglected to bring some films that had also 16 been sent to me, but with that exception they're all 17 here, to my knowledge. 18 Q. All right. I see one letter from Mr. Rymond to you 19 dated October 8th, 1998, and it's clearly by its 20 wording, not by the contents of what it purports to 21 enclose, not the letter that accompanied the first 22 materials that were sent to you. 23 A. That's correct. I believe that I left an original 24 letter at home, thinking that that was not an actual 25 patient record and hence not required for the 5 1 deposition. 2 Q. And why don't you describe for me what that letter 3 is, if you would. 4 A. I don't recall. 5 Q. Was it the introductory letter? 6 A. Yes. I simply flipped through a pile of records 7 this morning as I was loading them into a suitcase, 8 and that didn't seem to be something that would be 9 required. If it's important I'd be happy to provide 10 it for you. 11 Q. Was it a description of the facts of the case? 12 A. I saw it as a letter from the attorney, and I didn't 13 think that that was a required component. I simply 14 left it at home, did not read it. 15 MR. RYMOND: Toby, I'll be happy to 16 provide you with it. My secretary is not in, 17 and I cannot retrieve it right now, but I would 18 be happy to generate it. 19 Q. That was the only letter, a singular letter? 20 A. I believe there was one letter that I left at home, 21 thinking it was unnecessary. 22 Q. All right. Did you take any notes? 23 A. Yes. 24 Q. And where are those? 25 A. I have a copy of those here. 6 1 Q. Could I take a look at those, please? 2 I'm looking at a chronology that you prepared, 3 and I see an entry of June 15th, 1994 where you 4 indicate there was a follow-up with Dr. Witt, callus 5 on tongue, erythema right lateral tongue, biopsy 6 done, negative biopsy. 7 It's your understanding that there was a visit 8 in June of '94 with Dr. Witt? 9 A. Could I look at that, please? 10 Q. Sure. 11 A. Well, I haven't committed these many thousands of 12 pages to memory. I did prepare this summary quite a 13 long time ago, so I can't particularly comment on 14 that. Perhaps if we go to the record, I could 15 clarify it. 16 Q. Please do. 17 MR. RYMOND: He can have his records 18 back, I take it? 19 MR. HIRSHMAN: Oh, yeah, they're on the 20 table for him to utilize. 21 Q. So we're going to have to find Dr. Witt's records. 22 MR. RYMOND: That's what I figured. 23 Q. Have you found Dr. Witt's records yet? 24 A. Well, I have not. 25 Q. All right. 7 1 A. The date is cut off, only the first page here. Is 2 that '91? Maybe. And I have an entry June 15th, 3 '94, Dr. Witt. 4 Q. 6-15-94? 5 A. That's what this page says. 6 Q. So that's your understanding as to what happened on 7 June 15th, Dr. Witt performed a biopsy and it came 8 back negative? 9 A. Allow me to review the record, if I could. 10 Q. Well, reading from the October 3rd, '95 note, it 11 says in June of 1994 she had a biopsy of a similar 12 lesion of same site along the right tongue tip which 13 was benign and probably represented reactive type 14 tissue. 15 Let me ask you this. From your review of all 16 the records and all the depositions in this case, 17 and I presume you've read all the depositions that 18 have been outlined in your report? 19 A. Correct. 20 Q. It's your understanding that it is Dr. William Witt 21 who did a biopsy in June of 1994 of Cathleen Lane's 22 tongue; is that correct? 23 A. Well, as we look here at this page, the section is 24 labeled Katz and Witt, and the signature at the 25 bottom of the note from 10-95 looks like a W, but it 8 1 is difficult for me to know clearly from this page 2 which physician authored this note. 3 Q. The note of which? 4 A. Well, the note of the -- the two notes we've been 5 talking about the last couple of minutes, the June 6 15, '94 and the 10-3-95 note. 7 Q. So -- 8 A. Because they're not actually clearly signed with a 9 legible name. 10 Q. Based on your review of the depositions, do you have 11 any further insight into who was involved in the 12 biopsy of June, 1994? 13 A. Well, as I said, given the enormous volume of 14 information in this case, as I reviewed it I 15 attempted to pull out what seemed to be important to 16 me. You can probably catch me on a hundred little 17 details that I'm not committing to memory. 18 Q. All right. 19 A. But as I sit here today, I can tell you that it is a 20 logical conclusion that either Dr. Katz or Witt 21 performed that procedure, but I cannot tell you from 22 these notes which physician did so. 23 MR. RYMOND: Do you want him to go back 24 through the depos, or do you want to tell him? 25 He'll probably accept your representation. 9 1 Q. Can you tell me who performed the biopsy on October 2 10th, 1995? 3 A. Well, once again, the note is legible, but there is 4 no signature legible along with it. So again, it is 5 from that office, but I don't think I can tell you 6 which physician did it. 7 Q. All right. Can I look at your notes again, please. 8 MR. RYMOND: Do you want him to go 9 through the rest of the records from -- that 10 would relate to that note to see if he can give 11 you -- 12 MR. HIRSHMAN: I want him to -- 13 MR. RYMOND: Do you want him to -- 14 MR. HIRSHMAN: I want him to go through 15 the record, and I'm trying to get his 16 understanding of this case as of this point in 17 time. 18 A. Okay. Now, I do see there are additional notes, a 19 letter dated, let me see, June, '94 signed by Dr. 20 Katz, so -- suggesting that I've correctly 21 identified the practice but the wrong physician from 22 that practice as having performed the procedure in 23 my summary. 24 Q. All right. How about the October 10th, 1995 25 biopsy? Can you tell me after further review which 10 1 one of those two physicians is the one who did that 2 biopsy? 3 A. Well, I have a pathology report dated October 13th, 4 '95, and it says ordering physician William Witt. 5 Q. All right. As I go through your chronology, I don't 6 see any reference to, and you'll correct me if I'm 7 wrong, but I don't see any reference to the notes of 8 Dr. Kirby or Whelan that you've set forth in the 9 chronology. Am I correct in that, first of all? 10 A. That does appear to be correct. 11 Q. Did you read their notes? 12 A. I did. 13 Q. Are you going to be rendering opinions regarding the 14 issue of whether or not they comported with 15 acceptable standards of care? 16 A. I have focused my attention on Drs. Bell and 17 Callahan, and I have focused my attention on the 18 interval that has been the source of greatest 19 discussion in this case, namely from the fall of '95 20 onward and particularly during the spring of 1996, 21 but if you would like to show me additional records 22 and ask me questions, I'd be happy to respond to 23 them, as I have read all of the records. 24 Q. Well, let's start with a basic question. Do you 25 intend to offer opinions regarding whether or not 11 1 the dentists, Dr. Kirby and Dr. Whelan, comported 2 with acceptable standards of care -- 3 A. No. 4 Q. -- for a dentist? 5 A. I do not. 6 Q. All right. Now, do you have any opinions as to 7 whether Dr. Rozman comported with acceptable 8 standards of care? 9 A. I do not. 10 Q. Let's see. Do you have any opinions that you intend 11 to offer in this case as to whether Dr. Witt and Dr. 12 Katz comported with acceptable standards of care for 13 an otolaryngologist? 14 A. I certainly did not come here prepared to provide 15 such opinions. Once again, I can't anticipate every 16 question that you would ask me, but I have not any 17 prepared opinions regarding these people. 18 Q. All right. And would it be fair to say that it is 19 not your intention to offer opinions as to whether 20 or not Dr. Witt and Katz, as otolaryngologists, 21 comported with acceptable standards of care at the 22 time of trial? 23 A. You know, when you ask me these questions it's a 24 little bit confusing to me because, again, I can't 25 anticipate every question you would ask me, and what 12 1 it sounds like is you're kind of setting it up so 2 that you could elicit an opinion later and then say 3 to me, well, you said you have no opinion. So for 4 that reason I'm a bit confused. 5 Q. You attribute more to me than I deserve. All I'm 6 trying to do is prevent myself from being surprised 7 at the time of trial. I'm not trying to set you up, 8 I'm trying to find out what it is you're going to 9 testify to so that when we get into the courtroom I 10 don't find myself hearing opinions from you that I 11 didn't have an opportunity to inquire about at a 12 deposition. 13 A. I understand that. 14 Q. All right. So can you answer my question? 15 A. The answer to your question is that I have not come 16 here with any prepared opinions concerning those 17 individuals. If you would like to ask me specific 18 questions about their activities, I will answer 19 those questions fully and honestly. 20 Q. I'm going to ask you a general question. Do you 21 have an opinion -- you've reviewed Dr. Witt's 22 records, you've reviewed Dr. Katz's records, 23 correct? 24 A. Correct. 25 Q. Okay. You've read their depositions, correct? 13 1 A. Correct. 2 Q. And we'll go through in a minute the various other 3 materials that you've reviewed. Based on your 4 review of Dr. Witt's records and Dr. Katz's records 5 and their depositions, do you have an opinion as we 6 sit here right now as to whether or not they 7 comported with acceptable standards of care for an 8 ENT or otolaryngologist? 9 A. As I review my recollection of their activities at 10 this moment, I cannot think of specific issues 11 regarding standard of care on the part of these 12 physicians that was of concern to me. 13 Q. Do I understand that to mean you have no opinions as 14 to whether they comported with acceptable standards 15 of care one way or the other, or should I accept 16 that as a statement by you that they did nothing 17 wrong? 18 A. Based on my recollection of their activities, I am 19 not recalling specific things that they did wrong. 20 Q. Do you feel competent rendering an opinion as to the 21 behavior of otolaryngologists and whether they 22 comported with acceptable standards of care for an 23 otolaryngologist? 24 A. My opinions as an oncologist in this case allow me 25 to assess certain aspects of standard of care for 14 1 physicians other than oncologists as it pertains to 2 tumor management. I'm not a dentist, I'm not a 3 surgeon, I'm not an otolaryngologist, so I can't 4 comment on the details of surgery and the details of 5 dental practice, but I do feel able to comment on 6 appropriate issues as they intersect with proper 7 tumor management. 8 Q. All right. Let me ask you this, Dr. Levitan, what 9 would you do -- do you do biopsies? 10 A. No. 11 Q. You don't do biopsies? 12 A. No, except for bone marrow biopsies. 13 Q. So when you see patients, biopsy patients, it's 14 typically after they've had biopsy done, correct? 15 A. Not necessarily. 16 Q. How often do you see patients prior to the time that 17 they've been diagnosed as having -- let's talk about 18 oral cancers in particular here, let's not talk -- 19 my guess is your practice runs the gamut from breast 20 cancer to lymphomas to various other types of 21 cancers; is that correct? 22 A. That's correct. I have a lot of experience in 23 head/neck cancer, but I do see most types of tumor 24 patients. 25 Q. What percentage of your practice deals with oral 15 1 cancers in particular? 2 A. During the first few years of my activities at 3 University Hospitals I was the designated physician, 4 medical oncology physician, seeing almost all of the 5 head/neck cancer patients. Now that has receded to 6 a smaller percentage, perhaps ten percent of my 7 practice, though only a few years ago it was a very 8 large percentage. 9 Q. And most of those patients come to you with a 10 diagnosis having been made of oral cancer? 11 A. Either a definitive diagnosis or a concern about a 12 potential malignancy. 13 - - - - 14 (Thereupon, Mr. Hulme left the 15 deposition room.) 16 - - - - 17 Q. And those patients come to you if it's with a 18 concern, it's with a lesion that somebody else has 19 already raised a suspicion about? 20 A. Either a lesion or a symptom. 21 Q. All right. So typically in your practice you are 22 not following patients on a twice-a-year basis or an 23 annual basis in order to evaluate whether or not 24 they have a lesion in their mouth that might require 25 further investigation? 16 1 A. I do follow patients for the possibility of new 2 cancers or recurrent cancer. 3 Q. Okay. 4 A. But I would refer them for a surgical procedure, of 5 course. 6 Q. So you see patients within your practice who are 7 patients previously diagnosed with an oral cancer 8 and previously treated? 9 A. Are you asking whether those are the exclusive 10 patients or whether those are included among my 11 patients? 12 Q. I don't think I said exclusivity. I asked you 13 whether you see patients in your practice who have 14 been previously diagnosed and previously treated for 15 oral cancers. 16 A. Yes. 17 Q. Okay. And you follow them? 18 A. Yes. 19 Q. And how often do you see such patients? 20 A. The frequency of follow-up is tailored to the needs 21 of the particular patient. 22 Q. And if you have a patient who's had a previous 23 cancer of her tongue ten or more years ago and -- 24 is that the type of patient that you continue to 25 follow? 17 1 A. It's well known that patients with head/neck cancer 2 have a risk of additional primaries, so I haven't 3 been at University Hospitals for ten years, but I do 4 have patients in my practice who I follow many years 5 after their treatment. 6 Q. So the simple answer is you do have patients that 7 you're following who are more than ten years out? 8 A. No, I haven't been in Cleveland for ten years. 9 Q. I didn't ask you whether these are patients that you 10 have seen for the preceding ten years, I asked you 11 whether you're following patients who have had 12 cancer previously and are now ten or more years out? 13 A. No, because those patients are generally followed in 14 continuity with the physician who was involved at 15 the time of their diagnosis. 16 Q. So you have no patients that you're following that 17 had oral cancer ten years out? 18 A. I can recall a patient with a different malignancy 19 with lung cancer that I'm following who has a 20 history of remote head/neck cancer. But if your 21 question is specifically following for recurrence of 22 head/neck cancer that long after diagnosis, the 23 answer is no, not because those patients aren't 24 followed but simply because of the structure of my 25 practice. 18 1 Q. All right. So because you haven't been practicing 2 in Cleveland for ten years, you have no such 3 patients that you are following, and those 4 patients -- and you have no crossover patients who 5 have come from other practices for you to follow? 6 A. Correct. 7 Q. Presumably you have an opinion as to how such a 8 patient should be followed, however? 9 A. Correct. 10 Q. Let me know, if you would, how such a patient should 11 be followed -- 12 A. Well, again -- 13 Q. -- with a previous squamous cell carcinoma of the 14 tongue. 15 A. I would say this would have to be tailored to the 16 individual aspects of this patient. Some patients 17 are at considerably higher risk of occurrence or a 18 new primary than others, and the frequency of 19 follow-up would vary according to the patient. 20 Q. I'm going to ask you to assume a nonsmoker, 21 nondrinker who at a very young age developed a 22 squamous cell carcinoma of the tongue who had no 23 risk factors that were discernible at the time of 24 developing that squamous cell carcinoma and 25 presumably at this time has no risk factors other 19 1 than the fact that she had a previous squamous cell 2 carcinoma. How would you follow such a patient? 3 A. I would say that such a patient should be seen by 4 one or more physicians, and that generally can be 5 worked out, either once or twice a year, but I 6 should add that there are no clear guidelines for 7 the appropriate interval of follow-up of most 8 patients with most types of cancer. 9 Q. You would agree, however, that such a patient is at 10 a higher risk than the population at large for 11 developing another oral cancer? 12 A. Correct. 13 Q. And can you give me a statistic or a probability of 14 such a patient developing another oral cancer? 15 A. Well, the papers dealing with that pertain to 16 efforts at using agents such as retinoids to prevent 17 second primaries, and the literature suggests 18 anywhere between three and ten percent per year risk 19 of second primary. 20 Q. Does the length of time that transpires from the 21 diagnosis of the original cancer in any way extend 22 or enhance or reduce those numbers? 23 A. There are no hard and fast rules here. Speaking in 24 general, and we're talking about generalities, I 25 would say the further out from a single primary the 20 1 more comfortable I would be. 2 Q. So at the -- 3 A. And I may lengthen the interval at some point, but 4 this is very much prone to individual judgment. 5 Q. All right. So would it be fair to say then that 6 somewhere in that span, from three to ten percent 7 per year risk, would that, that span, would 8 encompass somebody 10 or 12 years out as well, but 9 you would simply place them further towards one end 10 of that spectrum rather than the other? 11 A. Well, the numbers of three to ten percent per year 12 do pertain to the more common population of patients 13 with head and neck cancer, which is to say those who 14 are exposed to tobacco and alcohol, so we don't 15 really know what the risk of recurrence -- excuse 16 me, risk of second primary would be for someone who 17 does not have those specific risk factors. 18 Q. Suffice it to say, in your practice if and when you 19 confront patients 10 to 12, 13 years out who had a 20 squamous cell carcinoma of the oral mucosa, you are 21 going to consider them high-risk patients for 22 another primary? 23 A. High risk is a strong term. There is always a risk, 24 but a single cancer that far out, I'm not sure I 25 would call it high risk. 21 1 Q. Let's call it increased risk. Do you feel more 2 comfortable with that term? 3 A. Relative to the general population, there would be 4 an increased risk. 5 Q. All right. And it would be an increased risk that, 6 in your practice, you would want to follow on some 7 sort of a regular basis? 8 A. Again, this has to be individualized. Ten years out 9 is a long time. 10 Q. So if you run into such a patient, you may well tell 11 them that you don't need to see them any more unless 12 they want to see you? 13 A. As I think about it, I guess in your hypothetical 14 patient with a single early stage cancer ten years 15 ago that has not -- 16 Q. I don't think I said early stage. Is that your 17 understanding of Cathleen, that her first cancer was 18 an early stage cancer? 19 A. I didn't realize we were talking about a particular 20 patient. 21 Q. Well, I didn't put early stage in my hypothetical, 22 so I'm -- 23 A. So perhaps you could restate your hypothetical case, 24 and then I'll answer your question. 25 Q. Let's restate the hypothetical and talk about an 22 1 early stage cancer, and then we'll do the same thing 2 with a late stage cancer. So let's start with an 3 early stage cancer, squamous cell cancer of the 4 tongue -- 5 A. If I can -- 6 Q. -- diagnosed 12 to 14 years earlier. 7 A. To move this along, I think I can simplify the 8 answer a little bit -- 9 Q. All right. 10 A. -- by saying that there are no standards or 11 guidelines for the follow-up of such a patient, and 12 I'm not sure what I would do, thinking about a 13 hypothetical situation of this sort so long ago. 14 Q. All right. I've looked at your report and you've 15 listed a number of materials you've reviewed. I'm 16 not going to ask you to restate them under oath, 17 other than to ask you what materials, in addition to 18 those, you've reviewed? 19 MR. RYMOND: He's referring to your 20 report now, as opposed to something else. 21 A. My report is dated September 20th, 1998. 22 Q. Correct. 23 A. And looking at the first page of my notes, it 24 appears that in November of '98 I reviewed the 25 additional records listed here, records of Dr. Mark 23 1 Urken, admission record from Mt. Sinai, and in 2 September of this year, that is two days ago, I 3 received the deposition of Dr. Allen. 4 Q. All right. 5 MR. RYMOND: Just by way of 6 clarification, there are some records included 7 in the binders that the doctor has that are not 8 listed on this list. Whether he looked at them 9 or not, you've now seen what he's reviewed and 10 they're in there. And for example, there's 11 Kirby and Whelan, there's -- I can't read that 12 one, there's a Dr. Vogt. 13 THE WITNESS: I grouped those together 14 as progress notes from multiple physicians. 15 MR. RYMOND: All right. I don't know 16 if that was listed on the letter. 17 Q. Let me take a look at your notes again. Maybe this 18 will speed it up. Before we leave, I'll ask you to 19 provide me with a copy of those notes. 20 The other materials that you have under those 21 notes look like some sort of a staging system for 22 oral cancer; is that correct? 23 A. Correct. 24 Q. All right. And it's the AJCC cancer staging 25 handbook? 24 1 A. Correct. 2 Q. What edition and what year? 3 A. 5th edition, and I didn't include the copyright 4 date. To my recollection, this was published in 5 '96, but I would have to go back and look at that 6 to be sure. This doesn't change very much from 7 edition to edition. 8 Q. Let me take a quick look at that. I notice on page 9 32 you've written some notes in a little box? 10 A. Correct. 11 Q. And I take it those are notes pertaining to 12 statements one, two, three and four and five year 13 survivability statistics? 14 A. Correct. 15 Q. And it would be your opinion then that a Stage I 16 oral cancer would be associated with an 80 percent 17 likelihood of five-year survival? 18 A. These are approximate figures I use in talking to 19 patients. In fact, depending upon a lesion, Stage I 20 can be 80 to 90. There's always a variability of 21 several percent, but as a ballpark they're figures I 22 use in educating patients. 23 Q. And those figures are for Stage I, 80 percent? 24 A. Roughly. 25 Q. Five-year survival? 25 1 A. Correct. 2 Q. And for, say, II, 60 percent? 3 A. Correct. 4 Q. Five-year survival? 5 A. Correct. 6 Q. And for Stage III, 40 percent, five-year survival? 7 A. Correct. 8 Q. And for Stage IV, zero to 20 percent, five-year 9 survival? 10 A. Correct. 11 Q. Can you tell me what stage, in your opinion, 12 Cathleen was at the time of her diagnosis in May of 13 1996. 14 A. Just yesterday I read the deposition of Dr. Allen 15 who describes this as a Stage III, and I think 16 that's a reasonable conclusion. 17 Q. All right. Now, she had involvement of her bony 18 mandible; did she not? 19 A. Correct. 20 Q. Does that make her a Stage IV, in your opinion? 21 A. Well, the staging of the tumor is such that a T4 22 tumor would elevate the stage to a IV A from a III. 23 But when you look at the description of T3 and T4, 24 it's relatively vague in terms of how much bone 25 involvement is necessary to escalate it from a T3 to 26 1 a T4, so I think in this particular case it's a gray 2 area. Several of the experts have called this a 3 T3. I think that's reasonable. I don't think we 4 actually know. 5 Q. In your utilization of the staging criteria, from 6 your answer it sounds like what you're saying is 7 that if the bony involvement is extensive enough it 8 would serve the purpose of graduating a patient from 9 a Stage III to a Stage IV; is that correct? 10 A. Correct. 11 Q. All right. And what is the demarkation line in that 12 regard, in your opinion, between a Stage III and a 13 Stage IV, how much bony involvement need there be? 14 A. Well, as I say, it's a gray area. Very often when 15 I'm asked to stage a patient, I indicate that there 16 is a gray area, and I think this is one of those 17 situations. 18 Q. Suffice it to say, if there's an extensive amount of 19 mandibular bony involvement, it would, in your 20 opinion, allow for a staging as of a Stage IV? 21 A. Correct, but it's important to note that there can 22 be demineralization of bone around a tumor that 23 doesn't actually indicate extension of tumor 24 throughout that area of demineralization, hence, 25 further confusion as to how much actual invasion 27 1 there is. 2 Q. You've read the operative note of Dr. Stepnick from 3 May of 1996, I presume? 4 A. Yes. 5 Q. And I presume you've also read the path report from 6 that particular surgery? 7 A. Yes. 8 Q. Given the findings on the path report, you would 9 agree, would you not, that there was extensive bony 10 involvement of the mandible in this case? 11 A. Can we pull out that report so that I could look at 12 it. 13 Q. Yeah, be my guest. I'll let you find it in your own 14 records yourself rather than trying to find it for 15 you. 16 MR. RYMOND: I don't know if it's in 17 here or one of those. I'll look in here. 18 Q. Or I could provide you with mine. 19 MR. RYMOND: We're looking for the op 20 report of -- 21 MR. HIRSHMAN: I don't have the op 22 report in front of me. I have the path report, 23 but I can find the op report too. 24 MR. RYMOND: Is that what you're asking 25 him to look at? 28 1 MR. HIRSHMAN: I asked him for the path 2 report. 3 MR. RYMOND: The path report, okay. 4 MR. HIRSHMAN: I mentioned the op 5 report, but then we focused in on the path 6 report. From the surgery of May 2nd, 1996 the 7 report is dated May 22nd, 1996. 8 MR. RYMOND: Here you go. 9 Q. You're looking at that path report right now? 10 A. Correct, looking at Section G. 11 Q. All right. 12 A. The pathologist writes: Dimension of five 13 centimeters extensive permeation of adjacent soft 14 tissues, extensive perineural invasion, neoplasm 15 invades into underlying bone. The posterior bony 16 margin is extensively involved by extensive squamous 17 cell cancer, et cetera. 18 Now, if I could take the staging manual for a 19 moment. 20 Q. Sure. 21 A. And if we look at the definition of a T4 tumor, it 22 says tumor invades adjacent structures, example, 23 through cortical bone into deep extrinsic muscle of 24 tongue, et cetera. Superficial erosion alone of 25 bone by gingival primary is not sufficient to 29 1 classify as T4. 2 So what I don't really know is whether the bony 3 margin is sufficient to escalate this from a T3 to a 4 T4. Now, that is to say if we went back to the 5 pathologist and met together with the surgeon we 6 could probably make some determination, but it would 7 always be a gray area. 8 Q. I want you to assume that the alveolar bone is 9 invaded from one side to the other, that the cancer 10 permeates the bone in its entirety from one side to 11 the other. You would agree, given that assumption, 12 that we would be dealing with a situation which is 13 not simply marginal involvement of the bone? 14 A. If it's the cancer itself and not just surrounding 15 demineralization, I would agree with you. 16 Q. All right. And if that were the case, you would 17 classify Cathleen as a Stage IV? 18 A. Correct. 19 Q. And with a Stage IV you would give her a likelihood 20 of five-year survival from zero to 20 percent? 21 A. Correct. 22 Q. I want you to -- 23 A. Excuse me. We're speaking again about a 24 determination at the time of diagnosis? If I 25 understand correctly, you're not asking me as we sit 30 1 here today what I think her likelihood of survival 2 is at five years from the date of surgery? 3 Q. Well, I've heard Rick Rymond's questions for the 4 last few depositions, so that was going to be my 5 next question. 6 I take it your opinion is that by virtue of 7 her, and her meaning Cathleen, her survival for 8 three plus years, that her probability of survival 9 has changed? 10 A. The way you phrased that is a little confusing to 11 me. If you're asking whether I think it is likely 12 that she will survive until the five-year point 13 following her surgery as we sit here today, the 14 answer is yes. 15 Q. What is it about my question that you can't answer? 16 I asked you whether or not it's your opinion that by 17 virtue of having survived disease free -- by the 18 way, did she survive disease free this entire period 19 of time from the time of her diagnosis in April? 20 A. As I look at the records, she has been followed as 21 of late '97 for a node in her neck that, of course, 22 required attention in Dr. Stepnick's eyes, but the 23 most recent note that I have dated 12-3-97 indicates 24 that that node was smaller, suggesting that it was 25 probably not neoplastic in origin, and I have no 31 1 information subsequent to December 3rd, 1997. 2 Q. So is it your understanding that as of May of 1996 3 her cancer was successfully extirpated? 4 A. What does successfully extirpated mean? 5 Q. Was she disease free as it relates to cancer from 6 May, 1996 on? 7 A. I see no evidence that there is any recurrence 8 between May, 1996 through the last date of records 9 available to me. 10 Q. All right. And if there had been a recurrence, what 11 effect would that have on your opinions as to 12 whether or not she has better survivability 13 statistics now than she did at the time of 14 diagnosis? Mr. Rymond pointed something out to you 15 there, I think. 16 MR. RYMOND: I started to, but I 17 didn't. I just wanted to see if he had the 18 notes from August in his summary. 19 A. Well, I see no evidence -- bear with me one second, 20 please. 21 MR. HIRSHMAN: Read back the question, 22 if you would. 23 - - - - 24 (Thereupon, the requested portion of 25 the record was read by the Notary.) 32 1 - - - - 2 Q. So, Doctor, I'm asking you a hypothetical question. 3 A. Let me correct my prior statement. In October of 4 '96 there is an excision performed by Dr. Stepnick, 5 a wide local excision because of an area of squamous 6 cell cancer in the left tongue that he detects. 7 Q. All right. So she was not disease free from the 8 time of diagnosis in May? 9 A. Well, we don't know whether this is a new primary or 10 whether this is the same cancer at the floor of the 11 mouth that was resected in May of 1996. 12 Q. Would you be interested in what Dr. Stepnick has to 13 say about it? 14 A. Dr. Stepnick does note wide local excision of 15 recurrent tongue carcinoma in left tongue, so it 16 does appear that it's his opinion that this was 17 recurrence of the same. 18 Q. Do you have any basis with which to dispute Dr. 19 Stepnick's assessment in that regard? 20 A. I do not. 21 Q. All right. So we don't have a patient who is 22 disease free from May until now, do we? 23 A. She had a local recurrence, and a local recurrence 24 is a far less prognostic significance than if she 25 had developed, for instance, a metastatic lesion in 33 1 a node. Looking at the natural history of head and 2 neck cancer, what kills people is metastatic 3 disease. 4 It's extremely unusual for local disease to 5 lead to someone's death, unless it blocks an airway 6 or blocks feeding or causes an infectious 7 complication, but in almost all cases when people 8 die it is from disease that has spread to nodes and 9 other structures. And there's no evidence of such 10 recurrence here. 11 Q. Have you had an opportunity to look at the operative 12 note and the pathology report from the October, 1996 13 procedure? 14 A. I have, but to answer specific questions it would be 15 helpful if we pull that out. 16 Q. Why don't you do that. 17 A. I have here pathology report, October 16, 1996, 18 final diagnosis, A, left tongue biopsy, squamous 19 cell carcinoma involving submucosa and skeletal 20 muscle, clinically recurrent. 21 Q. Okay. 22 A. Right anterior floor of mouth biopsy, severe acute 23 and chronic inflammation involving squamous mucosa 24 with ulcer granulation tissue, et cetera, et cetera, 25 no evidence of malignancy. 34 1 Q. So we have a recurrence in October, and so we're 2 now, rather than three plus years out, we're at 3 three minus years out? 4 A. Three minus years out? 5 Q. Two plus. Two plus, correct? 6 MR. RYMOND: Well, two years, eleven 7 months from the date of surgery. 8 A. Again, in terms of her risk of dying from this 9 cancer, the fact that she has not developed lymph 10 node involvement or distant spread is what's really 11 important. 12 Q. Okay. 13 A. And for timing that, we're still three plus years 14 out. 15 Q. Well, the fact that she's had a recurrence can't be 16 beneficial, can it? 17 A. To give you an analogy using breast cancer, a woman 18 who undergoes breast conserving surgery as opposed 19 to mastectomy has about an eight percent risk of 20 recurrence in that breast. And you could say, well, 21 then how is it conscionable for surgeons to advocate 22 breast conserving surgery when local recurrence is 23 considerably higher, and the answer is that local 24 recurrence of breast cancer when it's excised and 25 when that cancer does not metastasize to lymph nodes 35 1 and bone and lung and so forth, has no bearing on 2 the five-year survival. 3 Q. Okay. 4 A. That's the analogy here. 5 Q. So I guess this is the question I really want to ask 6 you. Five-year survival is essentially the 7 equivalent of cure in the oncological assessment of 8 oral cancer? 9 A. No. 10 Q. So having survived five years does not assure you 11 that you have been cured of the index oral cancer 12 that you're following? 13 A. Correct. 14 Q. Five-year survival is just a landmark along the 15 way? 16 A. Correct. 17 Q. The natural history of oral cancer is such that you 18 cannot be assured with five-year survival that a 19 cure has, in fact, been achieved? 20 A. I would say that five-year disease-free survival -- 21 Q. Okay. 22 A. -- with reference not to a new primary but to the 23 very same original cancer, in most cases is 24 tantamount to cure for that lesion. But it's 25 important to differentiate between five-year 36 1 survival and disease-free survival. 2 Q. Yeah, maybe that was the underlying premise of my 3 question, although it wasn't stated because 4 disease-free survival presumes that you don't have a 5 local recurrence either; wouldn't that be a fair 6 statement? 7 A. Correct. 8 Q. All right. So from that perspective, if we're 9 talking about disease-free survival, we do not have 10 three plus years of disease-free survival in 11 Cathleen, correct? 12 A. That is correct. 13 Q. All right. We have two minus? 14 MR. RYMOND: Three minus. 15 Q. Three minus, we have less than three years of 16 disease-free survival? 17 A. Correct. 18 Q. Okay. Why is five years utilized? 19 A. It is convention to use benchmarks, such as five and 20 ten years survival, in cancer. Why that isn't four 21 and eight, I can't tell you. 22 Q. Are there any studies with ten-year survival for 23 oral -- for squamous cell oral carcinomas? 24 A. Studies of what type? What question are you 25 asking? 37 1 Q. I'm asking you for morbidity -- excuse me, for 2 mortality tables for squamous cell carcinomas. Are 3 you aware of any studies that look at survivability 4 and/or disease-free survivability at intervals 5 greater than five years? 6 A. They may well exist, but I can't specifically recall 7 them. 8 Q. All right. Presumably five years is used because 9 there's something about the natural history of oral 10 cancer that would suggest that if you get to five 11 years you've got a reasonably good chance of not 12 having that same tumor kill you, correct? 13 A. Correct. 14 Q. All right. And what is it about the natural history 15 that allows you to use five years? 16 A. As I said, the convention pertains not specifically 17 to one type of cancer. We look at five-year 18 survivals for all different types of cancers. 19 Q. Do you have any statistics as to what the mortality 20 rate is for oral cancers at three years? 21 A. The only pertinent piece of data that comes to mind 22 is that a majority of the recurrences will take 23 place within the first two years, which includes 24 spread to lymph nodes, bone, lung, et cetera. And 25 if someone hasn't developed such life threatening 38 1 spread within two years, their risk of developing 2 such complications during the subsequent three years 3 within this five-year follow-up window is markedly 4 diminished. 5 Q. What percentage, in your opinion, of the recurrences 6 or spreads occur within the first two years? 7 A. I would estimate that 60 to 70 percent of the 8 incidence of developing spread to nodes and distant 9 sites will occur within the first two years. 10 Q. Meaning that 30 to 40 percent will occur during the 11 next three years? 12 A. Correct. Now, I need to explain that point to you, 13 and this is a basic point about cancer biology. And 14 that is that if I have a cancer and that cancer is 15 treated and I develop metastatic disease to some 16 other site at one year, two years, that is not a new 17 cancer that has grown. 18 Cancers are years old at the time of diagnosis, 19 and microscopic metastatic disease spreads to other 20 parts of the body long before diagnosis, so when 21 someone develops bone metastases two years out from 22 their original cancer of any type, the tumor cells 23 were already there. So when we're looking at a 24 two-year, three-year, four-year interval, we're 25 asking what's the likelihood that those tumor cells 39 1 sitting there in those remote sites will become 2 clinically apparent. 3 Q. I understand. And the slower growing the cancer is 4 and the less aggressive the cancer is, the longer 5 the interval before those potential metastatic sites 6 become clinically apparent? 7 A. The natural history of the cancer affects two 8 different outcomes. It affects the likelihood that 9 metastatic disease, occult metastatic disease, 10 occurred at all during the period prior to diagnosis 11 and the rapidity with which it will come back. 12 Q. All right. So if one assumes a slow growing or 13 indolent cancer, one would have to wait a longer 14 interval than one would with an aggressive cancer in 15 order to be satisfied that a distant site is not 16 going to be clinically involved? 17 A. If you look at the range of behavior of cancers such 18 as lung, esophagus, head/neck, even allowing for the 19 spectrum of more or less aggressive cancers as a 20 family, those cancers are going to come back and 21 declare their metastatic sites in most cases within 22 two years. 23 Q. In 30 to 40 percent it will be from two to five 24 years? 25 A. Correct. 40 1 Q. All right. And the basic principle that I asked you 2 about would be an accurate one, would it not, that 3 the more indolent or slowly growing the cancer, the 4 longer it's going to take for a site which has had a 5 microscopic metastasis to become clinically apparent 6 or to declare itself as not being clinically 7 apparent, clinically significant? 8 A. While the logic of your statement is apparent, my 9 clinical experience is such that cancers are harder 10 to predict than that, and I would not say that you 11 could look at the pathology report, look at how high 12 or low grade the pathologist thought it was and then 13 make some assumption as to whether it's going to 14 come back in six months or one year or two years. 15 In point of fact, the factors that control the rate 16 of cancer growth are far more complex than that. 17 Q. All right. 18 A. And I think that's an oversimplification. 19 Q. So whether it's slow growing or fast growing doesn't 20 give you any insight into whether or not a 21 metastatic site will appear early or late? 22 A. I don't think you can rely on that. 23 Q. All right. So none of the factors that you can 24 discern from Cathleen's cancer help you to develop 25 an insight into whether her particular cancer will 41 1 evolve into a distant metastatic site early or late? 2 A. I think the time from diagnosis during which we have 3 observed her is probably the most important factor. 4 Q. All right. We've already agreed that 30 to 40 5 percent of those cancers, in your opinion, are going 6 to declare themselves as having spread after two 7 years? 8 A. Correct. 9 Q. All right. Nothing about Cathleen's cancer, as 10 described pathologically or as you can see 11 clinically, gives you any insight into which of 12 those two groups she might be associated with, the 13 early declarers or the late declarers? 14 A. Well, we're now three years and four months out, and 15 the figure I gave you of 30 to 40 percent is post 16 two years, so I'd have to pick a number out of the 17 air and tell you what her specific likelihood is 18 now. But if we started at 60 to 70 percent in two 19 years and we're now three and a half years out, 20 we're in an even better position at this point. 21 Q. All right. Does Cathleen's -- so your opinion is 22 that Cathleen, to a reasonable probability, will not 23 have a recurrence? 24 A. Now, when you say to a reasonable probability, are 25 we using a 50 percent figure or -- I know that that 42 1 terminology has very weighty legal significance, so 2 perhaps you could explain exactly how you're meaning 3 it. 4 Q. Greater than 50 percent likelihood. 5 A. That she would not develop metastatic disease and 6 die from that disease, is that your question? 7 Q. That's my question. 8 A. At this point in time, three and a half -- three 9 years and four months out, I think it is more likely 10 than not that she will not succumb to this 11 particular cancer. 12 Q. Is that going to, in any fashion, change the -- 13 strike that question. 14 You work at University Hospitals? 15 A. Correct. 16 Q. You know Dr. Silverman, I presume? 17 A. I do. 18 Q. Do you work with her? 19 A. She's a colleague. 20 Q. Have you spoken with her about this case? 21 A. No. 22 Q. All right. Have you spoken with any of the treating 23 physicians about this case? 24 A. No. 25 Q. Do you know Dr. Goldberg, Gerald Goldberg. 43 1 A. I think that I have met him, but I certainly -- I'm 2 not sure I would know him if he walked into this 3 room. 4 Q. How about Dr. Stepnick, do you know him? 5 A. I know Dr. Stepnick. 6 Q. Have you talked to him about this case? 7 A. No. 8 Q. Do you know Dr. Callahan? 9 A. No. 10 Q. Do you know Dr. Katz? 11 A. Likewise, I think I could recognize him in a crowd, 12 but I'm not sure -- I have no relationship with 13 him. 14 Q. Have you met him, ever spoken with him? 15 A. I think over the years I have met him. 16 Q. Has he referred cases to you, patients to you? 17 A. Not that I specifically recall. 18 Q. Okay. How about Dr. Witt, do you know him? 19 A. Likewise, I have a vague idea of who he is but don't 20 really know him. 21 Q. You practice at the same hospital as Dr. Katz used 22 to practice at? 23 A. Correct. 24 Q. All right. And Dr. Witt still practices there, I 25 believe? 44 1 A. Correct. 2 Q. Does Dr. Callahan do any work at University 3 Hospitals, that you know of? 4 A. I don't know. 5 Q. Do you know Dr. Kirby or Dr. Whelan? 6 A. No. 7 Q. Dr. Synenberg? 8 A. No. 9 Q. Do you know Dr. Allen? 10 A. No. 11 Q. Have you ever consulted his text? 12 A. No. 13 Q. Do you feel comfortable -- you've already indicated 14 you're not going to be rendering opinions about Dr. 15 Whelan and Dr. Kirby as it relates to their care and 16 treatment. Do you have any opinions that you intend 17 to render as it relates to Dr. Synenberg? 18 A. No. 19 Q. And how many times have you been involved in 20 medical/legal matters? 21 A. I've been doing this work for several years, and I 22 take a few cases a year. 23 Q. When you say several years, how many would that be? 24 A. I don't remember exactly. I would guess maybe 25 three-ish years. 45 1 Q. When you say a few, how many is that? 2 A. How many cases per year? 3 Q. Correct. 4 A. Well, I recall on a recent deposition I was asked 5 that question and asked -- pardon me, and answered 6 six or eight cases a year. This morning I thought 7 back over the year 1999, and I don't think I've had 8 three or four new cases this year, so it's variable, 9 but I take only a few cases a year. 10 Q. So in a deposition recently you said six to eight? 11 A. I was thinking back to how I answered that question, 12 and I think in recent years it's been six or eight 13 cases a year. It's a small amount of my time. 14 Q. Six to eight cases a year for, what, three years? 15 A. I'm guessing, roughly. 16 Q. All right. Have you ever worked for the firm of 17 Reminger & Reminger before? 18 A. Yes. 19 Q. How many times? 20 A. I've had several cases with them. 21 Q. Have you had more than ten with them? 22 A. I believe I have. 23 Q. All right. More than 20? 24 A. I don't remember. I don't think so, but I'm not 25 sure. 46 1 Q. Let's try it this way. What percentage of the cases 2 that you've handled have been for the Reminger 3 firm? 4 A. Probably half. 5 Q. What lawyers have you worked for at the Reminger 6 firm? 7 A. I've worked with Mr. Walters. 8 Q. Steve Walters? 9 A. Yes. I worked with a woman with whom I did a case 10 this spring, and I'm blanking on her name. The 11 deposition was in this room. I've worked with Mr. 12 Scott. 13 Q. John Scott? 14 A. And these are the only names that come to mind, but 15 if you show me a list of the attorneys I would pick 16 them out for you. 17 Q. All right. Have you done any plaintiff's work? 18 A. Yes. 19 Q. How many of the cases that you've handled have been 20 plaintiff's? 21 A. Again, this is a guess, because I don't keep a 22 running tab of these, but I would guess maybe 20 23 percent of the cases have been plaintiff. 24 Q. Have any of the cases been oral cancer cases? 25 A. Yes, I think over the years, I can't recall the 47 1 details, but I think I've had a couple of other 2 cases of oral cancer. 3 Q. That you did for the plaintiffs or the defendants? 4 A. I don't remember. 5 Q. Do you remember any of the attorneys in those oral 6 cancer cases? 7 A. I don't. 8 Q. How much do you charge for your involvement? 9 A. $250 an hour. 10 Q. Is that what I'm paying you? 11 A. Well, that's what I'm going to charge. 12 Q. Okay. I mean, there's not a different rate? 13 A. I'm sorry? 14 Q. There's not a different rate you're charging me for 15 a deposition than you charge for review, is what I'm 16 asking? 17 A. I use a single rate for all activities in which I'm 18 away from my usual patient care. 19 Q. Have you worked for Rick Rymond before? 20 A. No. 21 Q. Can you tell me how much time you've spent on this 22 case today? 23 A. I don't remember exactly. Quite a number of hours 24 reviewing all these records, but I don't recall the 25 specific number. 48 1 Q. The six to eight cases per year that you described 2 earlier in which you indicated seemed to be less 3 this year -- 4 A. Correct. 5 Q. -- are those cases that you've been involved in 6 depositions in? 7 A. Yes. 8 Q. All right. So in addition to that there are other 9 cases that you review and don't get involved in 10 depositions? 11 A. The number that I estimated is probably most of the 12 cases that I review, since most cases end up with at 13 least a deposition. 14 Q. Most cases that you're involved with end up with a 15 deposition? 16 A. Correct. 17 Q. What percentage of the cases that you are involved 18 with end up with a deposition? 19 A. Again, I'm guessing. 20 Q. Your best estimate is what I'm asking for. 21 A. Probably greater than 90 percent. 22 Q. So ten percent of the time you tell the lawyer you 23 can't help them or something else occurs that 24 prevents you from going to the deposition stage? 25 A. Correct. 49 1 Q. What texts do you rely on in your practice? 2 A. I don't rely on any specific texts in my practice. 3 Q. That's a good answer, but you have certain texts, I 4 presume, that you look at from time to time? 5 A. Correct. 6 Q. Give me an idea of what texts you will consult from 7 time to time on the issues pertaining to oral 8 cancer. 9 A. The Davida text in oncology. There's a Haskell text 10 in oncology. 11 Q. H-A-S-K-E -- 12 A. K-E-L-L. 13 Q. K-E-L-L. 14 A. There's a text in oncology by Abeloff. 15 Q. A-B-E-L-O-F-F? 16 A. O-F-F. There's a text in oncology put out by the 17 M. D. Anderson Cancer Center. 18 Q. That's the author? 19 A. That's the -- it's a compilation of information 20 without a single author put out by the M. D. 21 Anderson Cancer Center in Houston. 22 Q. Okay. 23 A. And I read many different journals to keep up to 24 date on medical literature as well. 25 Q. What journals do you read? 50 1 A. The Journal of Clinical Oncology, the Journal of the 2 National Cancer Institute, Nature, Blood, the Annals 3 of Internal Medicine, New England Journal of 4 Medicine, the journal called Oncology, Seminars in 5 Oncology, Clinical Oncology Alert, among others. 6 Q. So Clinical Oncology is one. Cancer, I presume you 7 look at as well? 8 A. I don't read it regularly. It's no longer one of 9 the premier cancer journals. 10 Q. Was it at one time? 11 A. Yes. 12 Q. When did it, in your mind, stop being one of the 13 premier cancer journals? 14 A. It has been supplanted by the Journal of Clinical 15 Oncology over the last six to eight years. 16 Q. So prior to that time it was a leading journal? 17 A. It might even be longer ago than that. It's not 18 something that most people with whom I work 19 subscribe to. 20 Q. Did you ever subscribe to it? 21 A. I did when I was in training in the early '80s, but 22 not since then. 23 Q. Not since the early '80s? 24 A. Correct. 25 Q. How about the International Journal of Radiation 51 1 Oncology, Biology and Physics? 2 A. I don't subscribe to that. It is an important 3 journal in the radiation oncology community. 4 Q. And do you consult with it from time to time when 5 there's an article of interest to you in that 6 journal? 7 A. I conduct literature searches all the time, and that 8 will access a database of hundreds, even thousands, 9 of journals and that may come up. 10 Q. And you don't -- it's not a throwaway journal, 11 that's for sure? 12 A. No. 13 Q. And it's a journal when it has an article of 14 interest for you dealing with a cancer you're 15 involved with in treating it's an article that you 16 will look at and give serious consideration to? 17 A. Depending upon the author and the details, sure. 18 Q. All right. How about Acta Oncologica? 19 A. That's not a journal that I subscribe to. 20 Q. Is it a journal that is an important journal? 21 A. I don't know how to answer that. It's not one that 22 I read. 23 Q. Do you review articles from it from time to time? 24 A. Perhaps. 25 Q. In that process that you described whereby you get 52 1 articles from various journals that are culled from 2 those journals and presented to you for review, is 3 that one of the journals that would be included? 4 A. I can recall referencing articles from that journal 5 for review. 6 Q. Okay. How about the European Journal of Cancer and 7 Clinical Oncology? 8 A. I would put that in the same category as the journal 9 that may provide an article of interest but that I 10 do not subscribe to. 11 Q. They're serious journals? 12 A. Well, this process of naming a journal and rendering 13 some global judgment as to its value I don't think 14 is particularly a valuable endeavor. 15 One judges an article by the details of the 16 study and the authors and the institution, really 17 not by the journal in which it's published. 18 Q. Those are peer reviewed journals, aren't they? 19 A. Correct. 20 Q. All right. So those aren't articles that simply get 21 published because somebody has an idea they want to 22 state something, they have to go through a peer 23 review process where the articles are submitted for 24 publication and then critically analyzed before 25 they're published by a jury of peers, correct? 53 1 A. I would never assume the merits of a study based on 2 the journal that it's published in but rather on the 3 intrinsic study itself. 4 Q. All right. Is Jack Gluckman somebody you've ever 5 read literature of? 6 A. The name doesn't ring a bell. 7 Q. All right. Is it your -- what's your understanding 8 as to Dr. Witt's involvement in this case? 9 A. That's a vague question. I'm sorry. 10 Q. When did he first become involved in Cathleen's care 11 and treatment and what did he do? 12 A. Well, you have already clarified for me that my 13 notes may contain inaccuracies regarding Dr. Witt 14 versus Dr. Katz, so having said that my notes 15 indicate that there was an office visit to Dr. Witt 16 on 11-1-91 during which the patient complained of a 17 cold sore in the left cheek. 18 I mention a visit to Dr. Katz on 8-3-93 for 19 difficulty swallowing, follow-up, my note says Dr. 20 Witt 6-15-94, and then I have additional visits, 21 10-3-95 and 10-10-95. 22 Q. What is a severe dysplasia of the oral mucosa? 23 A. It is a change in the mucosa that is precancerous 24 and indicates the possibility that this could go on 25 to evolve into a frank neoplasm. 54 1 Q. Is it a -- when a biopsy comes back with a finding 2 of severe dysplasia of the oral mucosa, is that a, 3 in your estimation, a finding that should be of no 4 concern to the patient and to the doctor? 5 A. I think it is a finding of some importance. 6 Q. And why is that? 7 A. Because it represents a precancerous change and 8 follow-up of that patient is needed. 9 Q. What kind of follow-up is needed? 10 A. Again, there are no firm guidelines as to the 11 optimal interval, but such a patient requires 12 follow-up by one or another physician due to the 13 risk of developing malignancy. 14 Q. And are you able to tell me what sort of an interval 15 of follow-up you would provide to a patient who had 16 a biopsy that came back showing severe dysplasia of 17 the oral mucosa? 18 A. I think a follow-up of every few months would be 19 appropriate, in my opinion. 20 Q. A few meaning what? 21 A. I would say every two to four months, but again this 22 is strictly my opinion without evidence based 23 guidelines to rely on. 24 Q. So in your practice you would follow such a patient 25 at an interval of, what, two to four months? 55 1 A. I would say I would follow them based on any 2 symptoms and perhaps an exam three times a year for 3 some time would be appropriate. 4 Q. So if a patient of yours had a finding of severe 5 dysplasia and subsequently developed a lesion or a 6 bump or a complaint in that area, what would you 7 do? 8 A. I would examine that patient and if my exam was 9 unrevealing but I had continued concern, that is to 10 say the symptoms did not resolve, I would consider 11 radiographic studies and/or a detailed examination 12 by someone skilled in the examination of the oral 13 mucosa, such as an otolaryngologist, oral surgeon, a 14 dentist skilled in that area, et cetera. 15 Q. Under what circumstances would you do another 16 biopsy? 17 A. A biopsy would be prompted by a localized symptom or 18 by a finding on physical examination. 19 Q. What do you mean? 20 A. Or a radiographic finding. 21 Q. A localized symptom, what did you say beyond that, a 22 radiographic finding? 23 A. A radiographic finding of sufficient concern or a 24 finding on physical exam. 25 Q. What type of a finding on physical exam would prompt 56 1 you to do another biopsy? 2 A. Well, there's a great deal of judgment involved 3 here. If something looks like the origin is 4 infectious, you might try antibiotics before doing 5 an invasive procedure. If a radiographic study 6 could have other explanations, you might follow that 7 and repeat it in a few months, but if your index of 8 suspicion is high enough, you would go ahead and do 9 a biopsy. 10 Q. In the face of a severe dysplasia, if a patient of 11 yours presented with a bump or a lump in the same 12 vicinity as the dysplasia was found, what would it 13 take for you to perform another biopsy or have 14 another biopsy performed? 15 A. If my evaluation or more likely my referral to an 16 individual expert in the examination of that mucosa 17 felt that that lump or bump were suggestive of a 18 malignancy, then that biopsy would be of great 19 importance. 20 Q. So when it comes to evaluating the significance of a 21 lesion or complaint in the mouth, you would make a 22 referral for further examination rather than relying 23 on your own expertise in that area? 24 A. Well, in particular a lesion, in particular the 25 lesion rather than the complaint, because there is 57 1 specific equipment used for the close examination of 2 the oral mucosa that a medical oncologist doesn't 3 have access to. 4 Q. What equipment is used that you don't have access 5 to? 6 A. There is special lighting for examinations that are 7 used -- that is used by an otolaryngologist or an 8 oral surgeon for careful examination of mucosa to an 9 extent not possible for a medical oncologist. 10 Q. What kind of lighting is that? 11 A. If you've ever been to an oral surgeon or an ENT 12 physician's office, they have a special chair, they 13 have high intensity lights, they have all kinds of 14 equipment, mirrors and so forth. It's a whole setup 15 that doesn't exist in a medical oncology office. 16 Q. So the bottom line is if you have a patient with a 17 suspicious lesion, you don't evaluate it on physical 18 exam yourself, you send them elsewhere to be 19 evaluated? 20 A. Correct. 21 Q. All right. Who do you send your patients to when 22 that occurs? 23 A. I personally work hand-in-hand with the 24 otolaryngologists. 25 Q. Who do you send them to? 58 1 A. Oh, any number of several people. 2 Q. Did you ever send them to Dr. Katz? 3 A. I'm trying to recall. I've certainly used Dr. 4 Stepnick. I recall -- now that you mention it, I 5 may have shared a patient with Dr. Katz over the 6 years, but he, as I said, is not someone with whom 7 I've had much of a collegial relationship. 8 Q. How about Dr. Witt? 9 A. Likewise. 10 Q. How about Dr. Abelson, Tom Abelson? 11 A. I have referred Dr. Abelson a number of times over 12 the years. 13 Q. He was, of course, at the time of the events that 14 we're talking about, with Dr. Katz and Dr. Witt, 15 correct? 16 A. I guess that's right. 17 Q. So in looking for localized signs or looking at a 18 physical examination -- well, strike that. 19 That leaves a radiographic sign, if you were 20 looking at a patient who had been diagnosed as 21 having a severe dysplasia, whether or not a repeat 22 biopsy would be done might be dependent on 23 radiographic signs, I think you indicated? 24 A. I think that that's a bit of a distortion. 25 Q. I didn't mean to, I'm sorry. 59 1 A. If I'm following a patient with a particular 2 complaint and it becomes appropriate for a 3 radiograph to be performed and there is a finding on 4 that radiograph, then I would act accordingly, but 5 x-rays are not routinely used to screen a patient 6 with dysplasia and no other findings. 7 Q. All right. You've had an opportunity to look at the 8 December, 1995 periapical films of Cathleen Lane, 9 have you not? 10 A. They are included in my list of records reviewed. I 11 have not looked at them recently. 12 Q. Do you recall what they showed? 13 MR. RYMOND: Toby, that's not really 14 fair. I mean, you have my only copy, my last 15 copy of that film. You promised to give it 16 back to me when I gave it to you. I've been 17 waiting for it for a year. 18 MR. HIRSHMAN: I've got them right 19 here. 20 MR. RYMOND: Well, why don't you let 21 the doctor see it, rather than test his memory 22 on it. 23 A. Being a nonradiologist, as we discussed that, it 24 would also be helpful for me to have a radiology 25 report to look at at the same time. 60 1 Q. You don't look at films? 2 A. I always rely on the radiology report. I'm not a 3 radiologist. 4 Q. Well, dentists don't usually get a report, do they, 5 when they do a periapical? 6 A. Well, they would have a description in their notes, 7 I would imagine, but I am not an expert in reading 8 such films and want to be clear about that. 9 Q. Okay. So whether it's a periapical or a Panorex, 10 you are not an expert in reading those films? 11 A. Correct. 12 Q. Okay. So you're not going to sit here and tell us 13 what those films show in this case? 14 A. Without a radiologist's report, I would not be 15 comfortable doing that. 16 Q. Okay. So as it relates to Callahan Exhibit 2, you 17 have no opinion as to what is depicted on Callahan 18 Deposition Exhibit 2? 19 A. As I said, I did not consider myself expert at 20 rendering a reading of these films. 21 Q. All right. So you are not going to render an 22 opinion as to whether or not Callahan deposition 23 Exhibit 2 depicts a cancer? 24 A. If provided with a description of the findings by an 25 individual skilled in the interpretation of these 61 1 films, I feel capable of describing the significance 2 of those findings based on my knowledge of cancer. 3 Q. All right. 4 A. But not the interpretation of these films. 5 Q. All right. I want you to assume that the December 6 18th, 1995 film shows a significant amount of ragged 7 bone disruption between tooth 18 and tooth 19. 8 Assuming that, do you have an opinion as to whether 9 or not that film reveals the existence of a cancer 10 that has invaded the bone? 11 MR. RYMOND: Objection. Go ahead if 12 you can answer, Doctor. 13 A. I can answer it this way. It is my understanding 14 that a decrease in bone density can occur as a 15 result of multiple factors, including endodontal 16 disease and procedures, infection, prior radiation 17 therapy and also cancer. 18 Q. Endodontal disease, infection? 19 A. Endodontal disease, that's right, and, slash, 20 procedures, infection. 21 Q. And radiation? 22 A. Radiation, as well as cancer. 23 Q. Now, so given the description that I just gave you 24 of that particular film, the differential diagnosis 25 that you would have would include all four of those 62 1 entities? 2 A. If I were working with a radiologist who could help 3 me move one or another higher on the list, I would 4 certainly consider that opinion. 5 Q. Okay. 6 A. But strictly speaking, the differential diagnosis 7 would include those items. 8 Q. All right. And if you were confronted with a 9 patient with that differential diagnosis, based on a 10 radiographic film and if that patient had two months 11 earlier had a biopsy showing a severe dysplasia, 12 what would your next step be? 13 A. Well, I think of dysplasia as a precancerous 14 finding, and we know that cancers develop over a 15 period of many years, so I wouldn't automatically 16 assume that bone loss is from cancer, but I would 17 certainly follow that patient looking for symptoms 18 or evidence of malignancy and would act 19 accordingly. 20 Q. Would you be inclined to do another biopsy at that 21 time? 22 A. Not necessarily. 23 Q. And under what circumstances would you do another 24 biopsy at that time? 25 A. Well, if we look at the specifics of this case to 63 1 make it less hypothetical -- 2 Q. Okay. 3 A. -- I think there's a -- I think this provides a good 4 example of a thought process that is, in my mind, 5 conscientious care. Which is to say, going through 6 the chronology, this patient had a tooth extraction 7 in February, this patient had follow-up just a few 8 days later. 9 Q. Let's go back before February because I'm talking 10 about December. 11 A. Okay. 12 Q. She's there in December and in December she's got 13 what she describes as a bubble in her mouth in the 14 area in the vicinity of the prior biopsy. The 15 biopsy had come back showing dysplasia, she has an 16 x-ray done which shows bony destruction. Are you 17 suggesting to me that you wouldn't perform another 18 biopsy; is that what you're saying? 19 A. Could we look at that note so that I could reflect 20 on it directly rather than just -- 21 Q. Let's just take a hypothetical. I want you to 22 accept it as a hypothetical. Are you suggesting to 23 me that under those circumstances you wouldn't do 24 another biopsy or order one? 25 MR. RYMOND: Objection. 64 1 MR. NORMAN: Objection. 2 MR. RYMOND: He's asked to see a note. 3 You're talking about this case in particular. 4 MR. HIRSHMAN: I asked about a 5 hypothetical. 6 MR. RYMOND: You agreed to talk about 7 this case and now you're going to a 8 hypothetical? 9 MR. HIRSHMAN: No, I'm going to a 10 hypothetical. 11 MR. RYMOND: I don't think it's fair to 12 go back and forth like that, but go ahead. 13 Q. What note do you want? 14 A. Well, it sounds to me like you're asking me to 15 render an opinion regarding standard of care in 16 reference to a note in December where there's a 17 description of a, quote, unquote, bubble, and it 18 would be helpful for me to see that note so that I 19 could render the opinion that you asked. 20 Q. I'm going to tell you that the note doesn't use the 21 word bubble, that the word bubble comes out of a 22 deposition, all right. So let's go with a 23 hypothetical here. 24 I want you to assume as a hypothetical the 25 following. October 10th, 1995 a biopsy is done in 65 1 the vicinity of tooth 19, the floor of the mouth, 2 that it comes back showing severe dysplasia. 3 December 18th, 1995 she complains of a bubble in 4 that same area. December 18th, 1995 a film is taken 5 and it shows bony destruction between tooth 18 and 6 tooth 19. Under those circumstances are you 7 suggesting to me that you would not order another 8 biopsy? 9 MR. NORMAN: Objection. 10 MR. RYMOND: Objection. 11 A. Well, what are the components we have here? We have 12 the history of dysplasia, uncomfortable with that, 13 we have a radiographic finding that could 14 represent -- pardon me. We have a radiographic 15 finding for which there's an extensive differential 16 diagnosis, and we have a physical finding that 17 you're describing to me using bits and pieces of 18 information from multiple different sources, and 19 frankly I've never heard of a bubble so I don't 20 really know what you're talking about. 21 Q. Did you read Cathleen's deposition? 22 A. I did. 23 Q. You didn't see a reference to a bubble in it? 24 A. I did. 25 Q. All right. 66 1 A. I don't know what that means. 2 Q. So under those circumstances you would see no reason 3 to order another biopsy? 4 A. As I said a few minutes ago, the assessment of 5 specific mucosal changes and the determination of 6 how likely those changes are to represent possible 7 neoplasm, and hence to merit a biopsy is a 8 specialized decision that is made by those skilled 9 in mucosal evaluation, such as an otolaryngologist 10 or an oral surgeon. So to make -- to render an 11 opinion based on this kind of presentation I think 12 is not possible. 13 Q. Okay. Because it's out of your area of expertise? 14 A. No, because -- not only that, but because your -- 15 Q. Well, let's start with that. 16 A. You're assembling things from lots of different 17 sources rather than saying doctor X with his or her 18 expertise saw these findings with this medical 19 terminology and how likely is that to represent 20 cancer. You're not really doing that. 21 Q. Well, let's start with a basic proposition, either 22 it's in your area of expertise or it's out of your 23 area of expertise. If it's out of your area of 24 expertise, I'm obviously not going to examine you 25 any further, but if it's in we're going to examine 67 1 it in depth. Is it in or out of your expertise to 2 respond to that hypothetical? 3 A. I believe that the specific examination of the oral 4 mucosa is something for which I would consult an 5 otolaryngologist or an oral surgeon, but a 6 determination of the risk of cancer and the 7 indication for a biopsy is something that I would 8 have an opinion about. 9 Q. All right. So you would refer a patient with the 10 hypothetical I just gave you to an oral surgeon or 11 an ENT for a mucosal evaluation in order to 12 determine whether or not, among other things, 13 another biopsy should be done? 14 A. You know, I have to say I'm getting awfully confused 15 with all this hypothetical stuff, and it would be 16 much easier for me to crisply answer your question, 17 since we really are talking about this patient, if 18 we could look at the note in question and you could 19 ask me the question in a specific manner. 20 Q. I'm asking you a hypothetical, and that's what we're 21 going to deal with here. 22 A. But you're really not because you're talking about a 23 patient. 24 Q. I'm not -- 25 A. This is very confusing to me. 68 1 Q. It's not confusing. I've had lots of doctors with 2 lots less cerebral capabilities than I think you 3 have who have been able to deal with hypotheticals, 4 so if you want me to run through it again I will, 5 but I'd like you to respond to the hypothetical. 6 A. Well, run through it again, please. 7 Q. I want you to assume a patient who on October 10th, 8 1995 had a biopsy done at the floor of her mouth 9 around tooth 19, the biopsy was read as having 10 severe dysplasia. Two months later, in December, 11 she has complaints of a bubble in her mouth in the 12 same vicinity, she has a periapical film done. 13 A. Can you explain what a bubble in her mouth is? 14 Q. It's an eruption in her mouth that she can feel. It 15 is not painful but it's tender. At this point, on 16 December 18th, a film is taken, a periapical film, 17 that shows destruction of bone between teeth 18 and 18 19. 19 Given those facts, is it your testimony that 20 there was no need to do another biopsy? 21 MR. RYMOND: I'm going to object. I 22 don't know that sufficient information was 23 given. He's asked you for a description of the 24 bubble, you've given him a very brief one, 25 you've not told him the dimensions of it, 69 1 you've not told him whether it's a purulent 2 drainage. 3 MR. HIRSHMAN: Why don't you let him 4 answer the question. Now that you've stated 5 that, I'm sure he will -- 6 A. Let's say we hypothetically refer this hypothetical 7 patient, refer him to a hypothetical 8 otolaryngologist, and let's say that the 9 otolaryngologist looks at the area that the patient 10 describes as a bubble and says this has the 11 characteristics of a neoplasm, I'm worried about 12 it. I would say a biopsy would be appropriate. 13 On the other hand, if this same hypothetical 14 otolaryngologist looks at this area and says this 15 patient has had a recent biopsy, this patient has 16 had multiple other surgeries, this looks like it 17 could be reactive or scar tissue, let's follow this 18 for a little while, it doesn't look like it merits a 19 biopsy to me, then that would be an important 20 opinion and would sway me one way or the other. 21 Q. So you would defer to the person looking at the oral 22 mucosa as to whether or not another biopsy should be 23 done? 24 A. Yes. 25 Q. All right. 70 1 - - - - 2 (Thereupon, a recess was had.) 3 - - - - 4 Q. We took a lit break, Doctor, and we'll start right 5 up again. 6 So whether or not to re-biopsy is going to be a 7 decision that depends, in large part, on what the 8 oral mucosa looks like? 9 A. Correct. 10 Q. All right. Take a look at Dr. Callahan's records, 11 if you would. 12 MR. RYMOND: Do you want him to look at 13 that February 13th date? 14 Q. Yeah, there's two. There's the 12th and 13th. 15 There's two notes there. 16 February 12th and 13th are the two visits I'm 17 directing your attention to, if I could. Have you 18 looked at that? 19 A. Yes, I see it here. 20 Q. All right. Tell me when you're done reviewing it. 21 I have some difficulty reading this. 22 A. But I have the notes in front of me. Perhaps you 23 could ask your question and we can go from there. 24 Q. Can you tell me what the oral mucosa of Cathleen's 25 mouth looked like on February 2nd, or excuse me, 71 1 February 12th or February 13th based on what you see 2 in Dr. Callahan's notes? 3 A. Well, on the 12th it looks like Dr. Callahan is 4 providing history and then says needs number 19 out, 5 but there isn't, as I can see, a specific 6 description of what he found on the 12th. 7 Q. Okay. How about -- 8 A. Unless I'm missing it. 9 Q. How about on the 13th? 10 A. The 13th it says she complains of tooth loss, in 11 tooth loss, very difficult, limited, opening, 12 something difficult started, very superficial. Can 13 you help me with this? 14 MR. RYMOND: I can't. It may be in his 15 deposition. My guess is that Mr. Hirshman 16 asked him to read his note at the time of his 17 deposition transcript, and I don't remember 18 precisely what he said. I don't know for 19 certain whether Mr. Hirshman asked him the 20 question. 21 A. Now, I have in my note that a question is raised 22 about giving penicillin and a question about 23 necrosis, but as I look at this note today I don't 24 know where that came from. 25 Q. Okay. Well, based on what you see here -- 72 1 A. Perhaps it's in his deposition. I don't know. 2 Q. Do you see any description of the oral mucosa that 3 gives you any insight into what was found there? 4 A. I do not. 5 Q. All right. You work with oral surgeons, it sounds 6 like, from time to time? 7 A. Yes. 8 Q. And they are physicians, are they not? 9 A. Yes, that is correct. 10 Q. They practice medicine? 11 A. My understanding is that the training of an oral 12 surgeon is initially dental school and then it's 13 some hybrid of the training pathways. I don't know 14 exactly what those pathways are. 15 Q. But they're professionals who exercise professional 16 judgment, or at least that's what you expect of them 17 as they perform their tasks for you? 18 A. Correct. 19 Q. And you expect them when you send the patient to 20 them, to make their own judgments as to what needs 21 to be done rather than simply following somebody 22 else's advice? 23 A. As long as that decision in question is within the 24 area of expertise of an oral surgeon. 25 Q. And you would expect that an oral surgeon before he 73 1 pulls a tooth to make his own assessment as to 2 whether a tooth needs to be pulled, would you not? 3 A. Yes. 4 Q. And you would agree that an oral surgeon is not a 5 mere technician who pulls a tooth simply because a 6 dentist or someone else tells him to pull a tooth; 7 is that correct? 8 A. That's a reasonable assumption. 9 Q. And that's what you would expect from an oral 10 surgeon you send a patient to, correct? 11 A. Yes. 12 Q. I'd like you to look at Dr. Synenberg's records, if 13 you would. 14 MR. RYMOND: I think they're in the 15 back there somewhere. 16 A. All right. I have these notes in front of me. 17 Q. All right. Is there anything in Dr. Synenberg's 18 records that tells you what the character of the 19 oral mucosa was when Cathleen went to see him? And 20 she went on two occasions. 21 A. Yeah, I can't read this. There's a note 12-18, and 22 it must be '95. 23 Q. Let me pull my note. 24 A. The quality of the photocopy is such that I can't 25 read it. 74 1 Q. I may have a better copy. 2 MR. RYMOND: It appears to say curet 3 something. 4 Q. What page are you on there? Let's see what it looks 5 like. 6 A. It's the one, two -- it's the fourth page. 7 MR. RYMOND: Well, that doesn't mean 8 anything. 9 Q. It may or may not be the same. 10 MR. RYMOND: That's the way, the 11 individual progress notes. 12 Q. I've got a better copy than that right here. There 13 you go. 14 A. Well, I do see the curet. Something in -- 15 MR. RYMOND: Lingual maybe? 16 A. It says Peridex? 17 Q. Panorex? 18 MR. NORMAN: Which day are you looking 19 at? 20 THE WITNESS: We're looking at -- 21 MR. NORMAN: 12-18? 22 MR. RYMOND: 12-18. 23 MR. NORMAN: Thank you. 24 A. I'm sorry, I can't -- I don't know what this says. 25 Q. All right. Is there anything on there that you can 75 1 read that suggests the -- a description of the 2 nature of the oral mucosa? 3 A. No. And there's additional writing on another page. 4 Q. On another page? 5 A. But likewise, I can't read that either. 6 MR. RYMOND: That's 1-14-96, Toby. 7 MR. HIRSHMAN: Okay, I'm with you. 8 MR. RYMOND: If you want to show him 9 yours, he may be able to read that, and I'm 10 always happy to try. 11 MR. HIRSHMAN: All right. 12 Q. Here you go. I'm showing you my copy of the 1-14-96 13 records of Dr. Synenberg. Do you see anything on 14 there that you're able to discern that describes the 15 character of the oral mucosa? 16 A. It looks like not in canals. That might be 17 proximal. Recommend XT, probably recommend. 18 Q. Extraction? 19 A. Extraction. That's the best I can do. 20 Q. There's nothing there that describes the oral 21 mucosa, is there? 22 A. Well, I don't know what the not in canals and the 23 next two words describe, I can't tell. 24 Q. Does it describe the oral mucosa to you? 25 A. I don't know what the words are. 76 1 Q. Does what you read there give you any insight as to 2 what the oral mucosa looks like or its condition? 3 A. No, not without being able to read those words. 4 Q. All right. Now Dr. Callahan has indicated that in 5 the presence of a white lesion there's an obligation 6 to do a biopsy. Do you agree with him in that 7 regard? 8 A. If the white lesion is suggestive of leukoplakia and 9 that area hasn't been previously recently evaluated, 10 then a biopsy is appropriate. There are many 11 patients with extensive leukoplakia. You don't 12 biopsy them every time you see them, but a white 13 lesion can be an indication of that and merits 14 appropriate evaluation. 15 Q. So a white lesion is an area that -- let's put it 16 this way, leukoplakia does constitute a potentially 17 precancerous condition? 18 A. Correct. Not all white lesions are leukoplakia, but 19 a lesion that looks like leukoplakia could be a 20 precancerous lesion. 21 Q. And Dr. Callahan indicates that there's an 22 obligation to do a wide excision in the presence of 23 severe dysplasia. Do you agree with him in that 24 regard? 25 A. If the area -- 77 1 MR. RYMOND: Objection. I don't know 2 what you're referring to. 3 MR. HIRSHMAN: I'm referring to his 4 deposition. 5 A. It depends on the location, but we have patients 6 with extensive leukoplakia and you can't do it. 7 Q. I changed the question. 8 A. Okay. 9 Q. I indicated to you that Dr. Callahan has testified 10 that there's an obligation to do a wide excision in 11 the presence of severe dysplasia. Severe 12 dysplasia. Do you agree with him in that regard? 13 A. If a dysplasia is localized enough such that it is 14 feasible to do that without excessive deformity and 15 postsurgical complications, I agree with that. Very 16 often in the oral mucosa it's not as simple as 17 that. 18 Q. To the extent that it's localized and removable 19 without severely disrupting the architecture of the 20 mouth, such a lesion should be removed with wide 21 excision? 22 A. You know, I would probably consult an 23 otolaryngologist or an oral surgeon for that 24 decision, because I think that's a surgical 25 decision. 78 1 Q. So that's out of your area of expertise? 2 A. I think that's right. 3 Q. All right. We talked a moment ago about an oral 4 surgeon's obligation to exercise independent 5 judgment and that you don't simply pull a tooth 6 because somebody tells you to pull it. Do you 7 remember that conversation? 8 A. I do. 9 Q. That judgment presumably would entail having the 10 oral surgeon make a differential diagnosis of his 11 own as to what's going on, correct? 12 A. Correct. 13 Q. It would entail attempting to evaluate the cause of 14 the problem with the tooth, correct? 15 A. Correct. 16 Q. And it would involve satisfying one's self of the 17 results of a biopsy if a biopsy had been done in 18 that area in the recent past? 19 MR. NORMAN: Objection. 20 A. Correct. 21 Q. Do you have an opinion as to whether or not Dr. 22 Callahan exercised his independent professional 23 judgment in that regard when he pulled Cathleen's 24 tooth number 19? 25 MR. RYMOND: Objection. Go ahead. 79 1 A. I see no indication that he made any kind of 2 inappropriate judgment at that point in time. 3 Q. So it's your impression that he made a judgment? 4 A. Yes. 5 Q. Because if he didn't make a judgment and simply 6 pulled the tooth because he was told to, that would 7 be inappropriate, correct? 8 A. I would agree with that. 9 Q. All right. We can agree on at least one thing 10 today. 11 Now, you just mentioned to me that you're not a 12 surgeon, you don't do surgical procedures, correct? 13 A. Except for bone marrow biopsies, that's correct. 14 Q. And the decision as to whether or not a particular 15 patient will undergo a mandibulectomy or not is not 16 something that you concern yourself with in your 17 practice, that's something that you leave to the 18 surgeons to decide, correct? 19 A. Correct. 20 Q. Whether or not a segmental mandibulectomy is going 21 to be done or whether a marginal mandibulectomy is 22 going to be done is not an area you concern yourself 23 with, that is something that you leave to the 24 expertise of surgeons, correct? 25 A. Correct. 80 1 Q. And you won't be rendering opinions in this case on 2 whether or not a mandibulectomy of one sort or 3 another would have been the result of earlier 4 diagnosis in this case? 5 A. Correct. 6 Q. You would agree with the general proposition, 7 however, that as a cancer becomes more advanced more 8 radical surgery becomes necessary? 9 A. That's an extremely vague statement, so I think that 10 would depend upon the particulars. 11 Q. All right. So you can't agree with the general 12 statement that as a cancer becomes more advanced the 13 extensiveness of the surgery increases? 14 A. Not necessarily. 15 Q. All right. I want you to assume that a biopsy was 16 done on Cathleen on October 10th, 1995, that it 17 showed a severe dysplasia, as we've already 18 discussed, and that Cathleen called up Dr. Witt's 19 office for the results and was told that it was 20 negative and that she had nothing to worry about. 21 Do you have an opinion as to whether that 22 constitutes appropriate medical practice? 23 MR. MAZANEC: Objection. 24 A. I think that patients should be given accurate 25 information regarding biopsy results. 81 1 Q. And given the hypothetical I gave you, Cathleen was 2 not, correct? 3 MR. MAZANEC: Objection. 4 A. Let me make sure I understand. You want me to 5 assume that she was not given the correct 6 information? 7 Q. That's correct. 8 A. And you want to know if I think that was the right 9 thing to do? 10 Q. I want you to assume something more specific than 11 that. I want you to assume that she was -- that she 12 had a biopsy result that showed severe dysplasia and 13 she was told that the biopsy was negative and she 14 had nothing to worry about. Given that assumption, 15 was the care and treatment and management that 16 Cathleen was provided at that time appropriate, in 17 your opinion? 18 MR. MAZANEC: Objection. 19 A. Given that hypothetical situation, I think it is not 20 appropriate to give a patient information that 21 everything is normal if dysplasia is present. 22 MR. HIRSHMAN: What kind of notes are 23 we passing here, Rick? 24 MR. RYMOND: What kind of notes are we 25 passing? I asked the doctor what his departure 82 1 time is. I know he has patients scheduled and 2 his departure time is 11:00, so if we need to 3 reconvene, we need to reconvene. That's the 4 note that we passed. 5 Q. 11:00 is when you have to leave? 6 A. Yeah. 7 MR. RYMOND: Do you want a copy of the 8 note? 9 MR. HIRSHMAN: Yeah, please. 10 Q. Do you see patients from time to time who have had 11 biopsies recently performed by others? 12 A. Yes. 13 Q. And they come to you frequently with biopsies that 14 were requested by others and performed by others, 15 presumably? 16 A. Correct. 17 Q. And when that happens, you are usually asked to make 18 certain judgments about that patient regarding the 19 next step to be taken? 20 A. Correct. 21 Q. And when that happens, do you, within the course of 22 your practice, obtain a copy of the path report? 23 A. I generally do, although if a patient informs me 24 that the pathology was entirely normal, I wouldn't 25 necessarily. 83 1 Q. You would, in the face of a patient telling you that 2 the results are entirely normal, simply take their 3 word for it? 4 A. Depending upon the situation, I may do that. I'm 5 interested in abnormal pathology, not normal -- not 6 normal tissue. 7 Q. All right. And I take it that has occurred 8 frequently in your practice, that you take people's 9 word for what their pathology results are? 10 A. Yes, when they are good historians and report that 11 all findings were normal. 12 Q. You just leave it at that? 13 A. I can think of many examples in the past few weeks 14 where patients have told me they had a colonoscopy 15 and everything was benign, pap smear, everything 16 benign, absolutely. 17 Q. So you don't bother to get a copy of the report for 18 your records? 19 A. Not necessarily, not with a report of normal 20 findings. 21 Q. All right. And you're telling me you've never 22 gotten burned by doing that, huh? 23 MR. RYMOND: Objection. He didn't tell 24 you that. 25 Q. Are you telling me you've never gotten burned by 84 1 doing that? 2 A. I don't recall having encountered problems of that 3 sort. 4 Q. Where did this cancer arise from? 5 A. It appears that this cancer arose from the floor of 6 the mouth area and involved the alveolar ridge. 7 Q. It arose in the oral mucosa? 8 A. Correct. 9 Q. It did not arise in the bone? 10 A. Correct. 11 Q. And it arose in the oral -- it arose on the floor of 12 the mouth, or the alveolar ridge, on the left side 13 of the mouth, correct? 14 A. Correct. 15 Q. And it would have been the lingual aspect of the 16 alveolar ridge? 17 A. That's my understanding. 18 Q. All right. Lingual meaning the tongue side? 19 A. Correct. 20 Q. How does squamous cell carcinoma advance in the 21 presence of bone? 22 MR. RYMOND: In the presence of what? 23 I didn't hear you. 24 MR. HIRSHMAN: Bone. 25 A. I'm not sure I understand your question. 85 1 Q. Does the periosteum act as any sort of barrier to 2 the advancement of squamous cell carcinoma? 3 A. Well, it is a tissue barrier, but it can penetrate 4 through the periosteum. 5 Q. Is it a relative barrier? 6 A. Well, I'm not really sure what you're asking. Any 7 tissue plane is a barrier to tumor penetration, yet 8 tumor can penetrate through most any tissue plane. 9 Q. I guess I'm asking you this, I have heard it said 10 and I have seen it written that the periosteum acts 11 as a barrier to the spread of squamous cell 12 carcinoma with quick spread once that barrier has 13 been breached. Do you agree with that statement? 14 A. I'm not familiar with that principle. 15 Q. You're not. Do you dispute the accuracy of that 16 principle? 17 A. I don't either agree or disagree. I'm not familiar 18 with that principle. 19 Q. All right. And in your report you called this a 20 slow growing cancer, I believe; am I correct? 21 A. I believe that it is a slow growing cancer. 22 Q. Well, we know that in May of 1996 it was, what, it 23 was five centimeters in size? 24 A. Correct. 25 Q. And it was visible at that time; was it not? 86 1 A. Yes. 2 Q. Dr. Stepnick's notes indicate that he saw it and the 3 path report clearly shows its existence; does it 4 not? 5 A. Correct. 6 Q. So there's no doubt that it was clinically visible 7 in May of 1996? 8 A. Dr. Stepnick identifies it as clinically visible. 9 Q. And we agree this was a slow growing cancer? 10 MR. RYMOND: Objection. I don't know 11 that you agree. You asked him a moment ago 12 whether he would agree with you that the cancer 13 grew rapidly once the periosteum barrier was 14 penetrated. 15 MR. HIRSHMAN: I'm not suggesting it 16 is. It's his opinion that it is slow growing. 17 Q. Correct? 18 A. If we could go back just one minute, I want to make 19 sure that I'm clear in my answers. 20 My notes of Dr. Stepnick's intervention include 21 his description of a left submandibular node, and I 22 have here a copy of the pathology report, but you 23 specifically asked me Dr. Stepnick's clinical 24 impression at the time of his examination and I 25 don't want to guess and I'd rather go back to that 87 1 note to make sure that I agree with that. 2 Q. All right. 3 MR. RYMOND: I think that's it. 4 Q. I'm looking at a note dated April 24th, 1996 on page 5 two of which it says the mandible in the region of 6 the molar and premolar has a heaped-up appearance 7 anterior to the point where the tooth was 8 extracted. Do you see that? 9 A. Uh-huh, yes. 10 MR. RYMOND: Well, let's read the rest 11 of the sentence if we're going to read. 12 Q. And I am suspicious that this may represent tumor as 13 well. Correct? 14 A. So what he doesn't say is there's a fungating mass 15 in the mouth. 16 Q. That's correct. 17 A. He says this is more subtle. 18 Q. What he says is that he sees a heaped-up appearance 19 in the mouth, correct? 20 A. Correct. 21 Q. All right. That was there in April of 1996? 22 A. Correct. 23 Q. And it's not a break in the mucosa, it's a mass type 24 finding, correct? 25 A. Well, it's a heaped-up appearance. He doesn't call 88 1 this a mass. 2 Q. What is a heaped-up appearance, as you interpret it? 3 A. It's a, as I interpret it, it's a swelling of the 4 mucosa, but he does not describe it as a mass. 5 Q. All right. Do you have an opinion as to whether or 6 not that heaped-up swelling was present in March of 7 1996? 8 A. I do not know. 9 Q. Do you have an opinion as to whether it was present 10 in February of 1996? 11 A. I believe that the tumor was certainly present for a 12 duration numbered in years, but as to the appearance 13 of the mucosa at one or two or three months 14 beforehand, without being able to read the notes of 15 some of the physicians involved because of lack of 16 clarity of penmanship, I can't comment on that. 17 Q. Well, so you have no opinion, is that what you're 18 telling me, as to whether or not there was a 19 heaped-up appearance and swelling in February of 20 1996? 21 A. If we clarify some of the notes that we together 22 tried to read a few minutes ago, that opinion may 23 change, but based on the information available I 24 don't think we have any way of knowing that. 25 Q. So it may have been, it may not have been, correct? 89 1 A. Correct. 2 Q. How about in December of '95? 3 A. You're asking me whether there are any physician 4 notes that describe -- 5 Q. That's not what I'm asking you. 6 A. -- heaped-up mucosa? 7 Q. That's not what I'm asking you. I'm asking you 8 whether you have an opinion as to whether or not the 9 heaped-up mucosal swelling that you just described 10 was present in December of 1995. 11 MR. RYMOND: And he's allowed to 12 consider the deposition testimony, I assume, of 13 any and all the records? 14 Q. You consider all the records you've reviewed, all 15 the depositions you've reviewed and everything you 16 know about tumor growth. 17 A. As far as what I believed the mucosa looked like in 18 December, I don't specifically recall descriptions 19 of examinations in the many depositions that I've 20 read, so I have to say if it's appropriate to review 21 those again we can do that, but therefore I cannot 22 tell you what that mucosa looked like at any 23 specific prior point in time. 24 I can tell you based on the natural history of 25 a squamous cancer of the mouth or a lung cancer or a 90 1 breast cancer or a colon cancer or most any other 2 tumor that we would talk about, with a couple of 3 exceptions they grow over a period of many years. 4 We don't look at intervals of weeks when we're 5 considering the natural history of a tumor. Those 6 intervals are irrelevant. 7 Q. All right. So for sure that tumor was there in 8 February of 1996? 9 A. It may not have been clinically detectable, but it 10 was certainly there. 11 Q. You don't know if it was clinically detectable, but 12 you know this much, it was there? 13 A. Correct. 14 Q. And it was there in December of '95, correct? 15 A. Correct. 16 Q. You don't know if it was clinically detectable, but 17 it was there, correct? 18 A. Correct. 19 Q. It was there in May of 1995? 20 A. I believe it was there at that time as well, 21 correct. 22 Q. And it was there -- was it clinically detectable in 23 May of 1995? 24 A. I don't know. 25 Q. Was it there in February of '95? 91 1 A. I believe it was there in February of 1995. As I've 2 said, these grow over a period of years. 3 Q. All right. So we have a biopsy that was done in 4 October of 1995 and it shows no cancer, correct? 5 A. Correct. 6 Q. Yet cancer was there. 7 A. Correct. 8 Q. And how do you explain that? 9 A. We see this all the time. The cancer was deep and 10 infiltrating. The biopsy was taken of a suspicious 11 area on the oral mucosa which revealed dysplasia. 12 It was simply not detected with that biopsy, and 13 this very considerable and deep and old cancer was 14 present in an occult form at that point. 15 Q. Do you agree with the statement that severe 16 dysplasia is frequently accompanied by cancer? 17 A. It can be but need not be. 18 Q. So severe dysplasia not only is a precancerous 19 condition but is oftentimes an indication of a 20 synchronous cancer? 21 A. Well, I would say that if a good biopsy is obtained 22 with some depth to it and the pathologist feels that 23 it's an adequate sample, I would rely on the 24 diagnosis of dysplasia to the exclusion of cancer 25 unless that patient had other symptoms that would 92 1 lead me to do additional biopsies. 2 Q. Other symptoms such as complaints in the same area? 3 A. Correct. 4 MR. RYMOND: Toby, it looks like you 5 have a bit more. I know you have patients 6 scheduled. 7 A. Right. Can we finish up in ten minutes? 8 Q. Let me finish up in ten minutes and we'll get out of 9 here or we'll repeat this at another time. 10 MR. RYMOND: Everyone else is going to 11 be allowed to ask you questions. 12 MR. HIRSHMAN: Let me keep going here. 13 If we have to reconvene, we can reconvene. 14 MR. RYMOND: Okay. Maybe we can get 15 done. I don't want you to rush your answers in 16 an effort to get out of here. 17 THE WITNESS: Right. 18 MR. RYMOND: But I would like it if 19 Toby would rush his questions. 20 Q. So in your opinion the diagnosis of severe dysplasia 21 on October 10th, 1995 was, indeed, a finding related 22 to the cancer that was also present? 23 A. I don't know whether that was a separate area or 24 whether it was related to the same cancer. I don't 25 know that. 93 1 Q. It certainly could be, as you understand the natural 2 history of oral cancer, could have been a phenomenon 3 related to a concurrently existing cancer? 4 A. It could be. 5 Q. All right. And there are clinicians aware of that 6 coexistence who, by virtue of it, believe it to be 7 necessary to do repeat biopsies when faced with a 8 finding of severe dysplasia? 9 A. It's very important to look at the clinical 10 situation, to realize the morbidity of repeated 11 biopsies within the oral mucosa, to realize that 12 doctors aren't wizards and you need to follow 13 symptoms over a period of time and act on them. 14 It's not unusual to see an interval of a few 15 months as a necessary course of time over which a 16 diagnosis of cancer evolves, but because these 17 cancers grow so slowly it's an insignificant 18 window. 19 Q. All right. What is the growth rate of squamous cell 20 carcinoma? 21 A. We know that these cancers grow over a period of 22 years. We know that a one centimeter cancer 23 contains about a billion cells, that that tumor has 24 undergone about 30 double-ings, and in most cases is 25 four to five to six years old at the time of 94 1 diagnosis. 2 Q. So you're postulating that 30 double-ings occurred 3 in four -- if a tumor is one centimeter in size -- 4 A. Correct. 5 Q. -- it has been in existence for four to six years? 6 A. Correct. 7 Q. And would be the result of 30 double-ings? 8 A. Approximately. 9 Q. That's 30 cell double-ings? 10 A. Correct. And there are a few tumors, such as high 11 grade lymphomas and possibly small cell lung cancer, 12 that can grow more quickly, but most often all other 13 solid tumors, excluding certain pediatric 14 malignancies, grow slowly. 15 Q. And do you have -- have you read any literature 16 discussing doubling times in the nature of five to 17 ten days for squamous cell carcinoma of the mouth? 18 A. That's preposterous. 19 Q. Have you read any literature discussing that? 20 A. No, and I've read considerable literature to the 21 contrary. 22 Q. In your opinion Cathleen was at what stage in 23 December of 1995? 24 A. Well, as we discussed, in April of '96 she was 25 either a III or a IV A. 95 1 Q. Uh-huh. 2 A. And the tumor was five centimeters, or by another 3 description 5.2 centimeters, so that it was not a 4 borderline T3 in size tumor. And if, in fact, we're 5 calling this a T4 because of extensive bony 6 involvement, again, that also was, as you've 7 described it, extensive, so I do not believe that 8 any significant change in tumor staging occurred 9 over that brief interval of five to six months. 10 Q. So let's go back to February of 1995. What stage 11 was she, in your opinion, at that point in time? 12 A. Well, this process of backdating, you could ask me a 13 hundred different points in time and it can become 14 an exercise in futility. 15 I can tell you that if you go back a year and 16 two months from the time of diagnosis that's a long 17 enough interval that I think it's conceivable that 18 it could have been a lower stage than it actually 19 was in the spring of '96, but you really need to go 20 back a long time to achieve that. 21 Q. Okay. In February of 1995 it's conceivable that she 22 could have been a Stage II? 23 A. Well, if this were a Stage IV, then I would put her 24 back to maybe a III, and if she was a Stage III, 25 then she might have been a Stage II. 96 1 Q. All right. Did you read Dr. Callahan's testimony 2 regarding the growth of this cancer? 3 A. I read his testimony. Perhaps you could point to 4 the specific passage in question. 5 Q. I'm not going to point to the passage because I 6 don't know what page it was on, but I will 7 paraphrase what he said and I'll ask you for your 8 response to it. 9 He said that most all of the growth of this 10 cancer occurred during the month of April of 1996. 11 Do you agree or disagree? 12 MR. RYMOND: Objection. You may 13 answer. 14 A. I don't know what he meant by that. 15 Q. What he said was that this cancer went from 16 essentially one cell to five centimeters in size in 17 April of 1996. Do you agree or disagree? 18 A. I disagree. 19 Q. And do you use the same terminology you used a 20 moment ago, that that is preposterous? 21 A. That the tumor began as a single cell and grew to 22 five centimeters in size in the space of 30 days? 23 Q. Correct. 24 A. That's impossible. 25 Q. Is it preposterous? 97 1 A. Yes. 2 Q. All right. Do you agree with Dr. Callahan that if 3 she had been treated before December 18th, 1995 that 4 she would have a better prognosis? 5 MR. RYMOND: Objection. I think he 6 said -- you said Dr. Callahan? 7 MR. HIRSHMAN: I said Callahan. 8 MR. RYMOND: Objection. I don't think 9 he said that. You can answer the question. 10 A. Right. I don't think that her tumor stage would 11 have been different in December of 1995. Your 12 question was before December of 1995. 13 Q. Let's put it this way, immediately before. 14 A. That is to say around December of 1995? 15 Q. Correct. 16 A. I don't think that her stage or her outcome would 17 have been significantly different with such a short 18 interval in question. 19 Q. So you disagree with him -- 20 MR. RYMOND: Objection. 21 Q. -- if he indeed said that? 22 A. Well, that's two theoretical for me, but I think 23 I've answered your question. 24 Q. No, you didn't answer my question. I asked you if 25 Dr. Callahan indeed said that on December 18th, 1995 98 1 treatment would have resulted in a better 2 prognosis. You disagree with him, correct? 3 A. Correct. 4 Q. All right. Did you read Dr. Stepnick's discussion 5 regarding Cathleen's prognosis in his May 22nd, 1996 6 note? 7 A. I believe that my records include Dr. Stepnick's 8 notes. I don't specifically recall that 9 discussion. 10 Q. Well, in his note of May 22nd he describes her as 11 having bad prognostic indications. You don't recall 12 that? 13 A. I do not specifically recall it. 14 Q. Do you disagree with that? 15 MR. RYMOND: Objection. I mean, I was 16 objecting because I didn't think the doctor 17 could state whether he agreed or disagreed with 18 something he didn't specifically recall. 19 A. I need to look at that note. 20 MR. HIRSHMAN: He has all his notes 21 there. Just see if he can find it. 22 MR. RYMOND: Stepnick, May 22, '96. Is 23 that what we're looking for? 24 MR. HIRSHMAN: May 22, and maybe I can 25 find it quicker than you. 99 1 MR. RYMOND: Is it a progress note, 2 correspondence? 3 MR. HIRSHMAN: It's a progress note. 4 MR. RYMOND: There it is. 5 MR. HIRSHMAN: I believe. 6 MR. RYMOND: I got it. I think we've 7 got it, Toby. 8 Q. Second last paragraph. I explained in no uncertain 9 terms, he writes, that this represented a, quote, 10 bad, end of quote, prognostic indicator, and that if 11 perineural invasion along the nerve is identified in 12 the resection specimen, assuming we return for 13 another procedure, that this is a more omniscient, 14 is that the word there, finding? 15 A. I agree with the statement that that extent of local 16 invasion is a bad prognostic indicator. 17 Q. All right. So let's deal with prognostic indicators 18 here for a second. Size, in and of itself, is a 19 poor prognostic indicator, is it not? 20 A. Correct. 21 Q. And size is a function of timeliness of diagnosis 22 and treatment, is it not? 23 A. If you're asking whether a tumor that's diagnosed 24 earlier is likely to be smaller, in general that's a 25 fair assumption. 100 1 Q. Okay. And the longer -- 2 A. As I stated before, one can't oversimplify two 3 things. One can't oversimplify the fact that there 4 are prognostic indicators other than size. And 5 number two, that the interval involved in a cancer 6 that is years old has to be carefully considered. 7 When we work up a patient with a lung tumor or 8 an esophageal tumor, the workup for that patient 9 often takes six or eight weeks just to finish all 10 the testing. If a patient needs surgery for a 11 particular tumor and that patient wants to go away 12 for a few weeks and come back, very often the 13 surgeon will say, fine, the workup of a breast 14 lesion takes weeks. The reason is these are 15 insignificant intervals. 16 Q. Okay. As a general proposition, the longer you 17 wait, the more time the tumor has to grow? 18 A. Though that doesn't necessarily impact on 19 prognosis. 20 Q. The longer the wait, the more likely it is to 21 impact, correct? 22 A. Within the proper terms one could use that statement 23 in a very misleading fashion. 24 Q. I'm simply asking you a general statement, and the 25 general statement is tumors grow over time, 101 1 correct? 2 A. Correct. 3 Q. All right. And the longer you wait, the larger they 4 grow, correct? 5 A. In general. 6 Q. Let's talk about bony invasion. That's not a good 7 thing to have, is it? 8 A. I'm afraid I have to go. 9 Q. Then we'll have to reconvene. 10 A. Okay, that's fine. 11 MR. RYMOND: Okay. 12 A. I can call my office and see if we can extend to 13 11:30. 14 MR. RYMOND: Would you get done if 15 that -- 16 A. I'm happy to reconvene, but a few more minutes -- 17 Q. I'm on my last page, so we can either reconvene 18 or -- 19 A. It's your choice. I'll probably be late. 20 Q. I'd just as soon finish, Doctor. 21 MR. RYMOND: Nobody here is going to 22 have more than one or two questions, I presume, 23 if that, am I correct? Why don't you call your 24 office. 25 - - - - 102 1 (Thereupon, a recess was had.) 2 - - - - 3 Q. Cathleen had bony invasion, we've established that? 4 A. Correct. 5 Q. That's not a good prognostic indicator either, is 6 it? 7 A. Correct. 8 Q. Bony invasion, when dealing with squamous cell 9 carcinoma of the oral mucosa, occurs as a function 10 of time, correct? 11 A. It's an indication of an active tumor, and if the 12 tumor had been diagnosed as a Stage I bony invasion 13 would not have occurred. 14 Q. And the progression from Stage I to Stage II to 15 Stage III to Stage IV occurred over time, correct? 16 A. Correct. 17 Q. All right. So if this tumor had been diagnosed 18 early enough, that negative prognostic indicator 19 would have been avoided? 20 A. Correct, if it had been diagnoseable earlier. 21 Q. If it had been both diagnoseable and diagnosed? 22 A. Correct. 23 Q. It's not enough to be diagnoseable, it has to also 24 be diagnosed, correct? 25 A. Correct. 103 1 Q. All right. And perineural invasion occurred in this 2 case, did it not? 3 A. Correct. 4 Q. And where was that perineural invasion? 5 A. Well, my understanding was it was in the region of 6 the left alveolar ridge. 7 Q. And what is the significance of perineural 8 invasion? 9 A. It indicates a degree of local extension of the 10 tumor. 11 Q. And it's also a poor prognostic sign, correct? 12 A. And those are one and the same. 13 Q. What is one and the same? 14 A. In other words, it is a poor prognostic sign because 15 it indicates the extent of local invasion. 16 Q. All right. And that, in turn, was not there during 17 the early stages of this tumor, was it? 18 A. Going back much earlier, that's correct. 19 Q. So we can agree that earlier diagnosis, had it been 20 early enough to prevent perineural invasion, would 21 have left Cathleen in a significantly better 22 position, correct? 23 A. Had it been early enough to prevent perineural and 24 bony invasion and all of the local involvement that 25 occurred, correct. 104 1 Q. And as we talk about her prognosis, we're talking in 2 terms of survivability, correct? 3 A. Well, one can describe prognosis in multiple ways. 4 Q. But what I'm getting at is this, you've already 5 indicated that you are not going to be offering 6 opinions as to whether or not at various earlier 7 points in time a mandibulectomy would or would not 8 have been necessary, correct? 9 A. Correct. 10 Q. So as far as it relates to her disfigurement, you're 11 offering no opinions as to whether or not earlier 12 diagnosis would or would not have made a difference? 13 A. Correct. 14 Q. As it relates to her inability to eat by mouth, 15 you're offering no opinions as to whether or not 16 earlier diagnosis would or would not have made a 17 difference, correct? 18 A. Correct. 19 Q. In regard to her inability to articulate and speak 20 in an understandable fashion, you're offering no 21 opinions as to whether or not earlier diagnosis 22 would or would not have made a difference, correct? 23 A. The only point that I need to clarify in response to 24 each of those last few questions is the slowness 25 with which a tumor such as this grows. Therefore, I 105 1 don't believe, based on the natural history of this 2 tumor, that had surgery been undertaken a few months 3 beforehand that the type of surgery or the degree of 4 disfigurement would have varied significantly, 5 because this tumor grows so slowly. 6 Q. All right. What factors go into making a 7 determination as to whether or not a mandibulectomy 8 is going to be segmental as opposed to marginal? 9 A. Well, as I said, that is a surgical decision. 10 Q. So whether or not a different decision would have 11 been made at a different point in time, even a few 12 months' difference, you're not in a position to say, 13 correct? 14 MR. RYMOND: Objection. That's not 15 what he just said. 16 A. Except I don't think that the tumor would have been 17 much smaller a few months beforehand, therefore -- 18 Q. All right. 19 A. -- one can deduce that if the tumor did not change 20 very much in size then the surgical procedure 21 necessary would also have been similar. 22 Q. That's the deduction you're willing to make, 23 notwithstanding the fact that you aren't in a 24 position to render an opinion as to what the 25 surgical indications are for segmental as opposed to 106 1 marginal mandibulectomy? 2 A. Correct. 3 MR. HIRSHMAN: All right. No further 4 questions. 5 MR. RYMOND: Doc, I'd like you to read 6 it. 7 8 NATHAN LEVITAN, M.D. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 107 1 2 C E R T I F I C A T E 3 The State of Ohio, ) SS: 4 County of Cuyahoga.) 5 6 I, Laura L. Ware, a Notary Public within and for the State of Ohio, do hereby certify that the 7 within named witness, NATHAN LEVITAN, M.D., was by me first duly sworn to testify the truth, the whole 8 truth, and nothing but the truth in the cause aforesaid; that the testimony then given was reduced 9 by me to stenotypy in the presence of said witness, subsequently transcribed into typewriting under my 10 direction, and that the foregoing is a true and correct transcript of the testimony so given as 11 aforesaid. 12 I do further certify that this deposition was taken at the time and place as specified in the 13 foregoing caption, and that I am not a relative, counsel or attorney of either party or otherwise 14 interested in the outcome of this action. 15 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, 16 Ohio, this day of , 1999. 17 18 Laura L. Ware, Ware Reporting Service 19 3860 Wooster Road, Rocky River, Ohio 44116 My commission expires May 17, 2003. 20 21 22 23 24 25