0001 1 IN THE COURT OF COMMON PLEAS 2 OF CUYAHOGA COUNTY, OHIO 3 4 ~~~~~~~~~~~~~~~~~~~~ 5 C. JEAN THOMPSON, etc., 6 7 Plaintiff, 8 9 vs. Case No. CV 07 622712 10 11 MARK MELAMUD, M.D., et al., 12 13 Defendants. 14 ~~~~~~~~~~~~~~~~~~~~ 15 Videotape Deposition of 16 HAROLD MARS, M.D. 17 18 NOVEMBER 17, 2008 19 3:08 p.m. 20 Taken at: Cleveland Neurodiagnostic Lab 21 3609 Park East 22 Beachwood, Ohio 23 24 25 Eva Petrone, RPR 0002 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 Becker & Mishkind Co., LPA, by 4 HOWARD D. MISHKIND, ESQ. 5 RONALD A. MARGOLIS, ESQ. 6 1660 W. 2nd Street, Suite 660 7 Skylight Office Tower 8 Cleveland, Ohio 44113 9 (216) 241-2600 10 rmargolis@beckermishkind.com 11 hmishkind@beckermishkind.com 12 13 On behalf of the Defendants: 14 Bonezzi, Switzer, Murph, Polito & 15 Hupp Co., LPA, by 16 STEVEN J. HUPP, ESQ. 17 1300 East Ninth Street 18 Suite 1950 19 Cleveland, Ohio 44114-1501 20 (216) 875-2060 21 shupp@bsmphlaw.com 22 ALSO PRESENT: 23 Kim DiMuzio, Videographer 24 ~ ~ ~ ~ ~ 25 0003 1 I N D E X 2 3 EXAMINATION OF 10 11 4 HAROLD MARS, M.D. 5 BY MR. HUPP 6 EXAMINATION OF 29 25 7 HAROLD MARS, M.D. 8 BY MR. MISHKIND 9 EXAMINATION OF 62 12 10 HAROLD MARS, M.D. 11 BY MR. HUPP: 12 EXAMINATION OF 67 3 13 HAROLD MARS, M.D. 14 BY MR. MISHKIND: 15 16 17 Exhibit A was marked 11 24 18 Exhibit B was marked 13 22 19 20 21 objecting 7 7 22 object 7 21 23 object 8 2 24 object 8 6 25 object 8 13 0004 1 objection 17 25 2 objection 18 4 3 objection 18 11 4 objection 18 24 5 objection 19 4 6 objection 19 7 7 objection 19 15 8 objection 20 23 9 objection 21 4 10 objection 21 7 11 objection 25 12 12 objection 26 5 13 objection 26 11 14 objection 26 16 15 objection 27 3 16 objection 27 0 17 objection 27 11 18 objection 27 24 19 objection 28 14 20 objection 33 8 21 objection 34 24 22 objection 37 5 23 objection 38 5 24 objection 38 11 25 objection 42 4 0005 1 objection 44 8 2 objection 48 3 3 objection 48 23 4 objection 50 3 5 objection 50 25 6 objection 51 20 7 objection 52 9 8 objection 52 15 9 objection 52 21 10 objection 54 5 11 objection 55 6 12 objection 56 3 13 objection 56 10 14 objection 56 16 15 objection 56 24 16 objection 57 3 17 objection 58 14 18 objection 58 18 19 objection 58 22 20 objection 59 1 21 objection 59 18 22 objection 60 9 23 objection 60 17 24 objection 61 9 25 objection 61 13 0006 1 objection 61 24 2 objection 62 21 3 objection 63 1 4 objection 63 13 5 objection 63 18 6 objection 64 3 7 objection 64 11 8 objection 64 20 9 objection 65 3 10 objection 65 15 11 objection 65 21 12 objection 65 24 13 objection 66 14 14 objection 66 19 15 objection 66 24 16 objection 67 11 17 objection 67 19 18 objection 68 8 19 objection 69 5 20 objection 70 4 21 22 23 24 25 0007 1 THE VIDEOGRAPHER: Today is 2 November 17, 2008. We are here pursuant to a 3 notice that was issued on November 10 by 4 Mr. Hupp to take the videotaped deposition of 5 Dr. Harold Mars who was one of Mr. Thompson's 15:08:19 6 physicians who saw him prior to the hospital 7 and in the hospital. We are objecting to the 8 deposition and for the record the Court should 9 be aware that we had listed Dr. Mars as a 10 witness and then made a determination that we 15:08:38 11 were not going to call Dr. Mars. Defendant did 12 not have Dr. Mars as a witness and we therefore 13 notified him after we made the decision after 14 trial briefs were submitted that we were not 15 going to be calling Dr. Mars. 15:08:57 16 Mr. Hupp on behalf of Dr. Melamud 17 proceeded to indicate that he was going to call 18 him and filed an amended witness list and has 19 indicated that he plans on calling him as a 20 fact witness. 15:09:10 21 We object to the deposition for a 22 number of reasons. One, he wasn't listed on 23 the original witness list which was filed in 24 compliance with the Court's local rules. He 25 was not identified as a witness until we 15:09:25 0008 1 indicated that we were not going to call him, 2 and further, we object to his deposition and 3 the notice, the subpoena being issued under the 4 circumstances as a, quote, treating doctor or 5 as a fact witness. 15:09:42 6 We will object to any attempt on 7 the part of Mr. Hupp on behalf of Dr. Melamud 8 to elicit opinions from this doctor based upon 9 no expert report being provided, no opinions 10 expressed beyond the items that are in his 15:10:01 11 chart. 12 And for all of those reasons we 13 would object and move that Dr. Mars' testimony 14 be precluded from being played to the jury, but 15 I will not make any further objections 15:10:15 16 throughout the course of the deposition as it 17 relates to that matter. 18 MR. HUPP: I will just briefly 19 state for the record and this is not the entire 20 basis for my opposition, but I will state that 15:10:23 21 upon receiving Plaintiff's witness list, I did 22 not place Dr. Mars on the witness list. 23 Subsequent to that, they withdrew Dr. Mars, so 24 I amended my witness list to include Dr. Mars. 25 And in addition, I'm only taking 15:10:36 0009 1 his deposition as a treating physician, and 2 under local rule, I am permitted to do that 3 with adequate notice to counsel and we are all 4 here today. That's it for now. 5 MR. MISHKIND: Just one other item. 15:10:49 6 The amended witness list was filed after the 7 pretrial and only a matter of a few days ago, 8 with the subpoena being issued. And our trial 9 briefs both were filed with the Court. 10 Certainly Dr. Mars could have and should have 15:11:05 11 been listed as a witness on the original trial 12 briefs. The fact that we elected not to call 13 Dr. Mars does not open the door or give the 14 opportunity to Defendant to call a witness 15 simply because we've withdrawn that witness. 15:11:22 16 If it was his intent to call him, he should 17 have been listed on the witness list from the 18 very beginning. But we can take it up with the 19 Court. 20 MR. HUPP: Again, local rule 15:11:33 21 permits us to depose any treating physicians 22 any time up to seven days prior to trial if I'm 23 not mistaken and clearly he is a treating 24 physician, so that's it. 25 THE VIDEOGRAPHER: We are going on 15:12:31 0010 1 the record at 3:12. The date is November 17, 2 2008. This is the videotaped deposition of 3 Dr. Harold Mars, MD. 4 Court reporter, could you please 5 swear in the Witness? 15:13:12 6 HAROLD MARS, M.D., of lawful age, 7 called for examination, as provided by the Ohio 8 Rules of Civil Procedure, being by me first 9 duly sworn, as hereinafter certified, deposed 10 and said as follows: 11 EXAMINATION OF HAROLD MARS, M.D. 12 BY MR. HUPP: 13 Q. Dr. Mars, please state your full 14 name and professional address for the jury. 15 A. Yes. My name is Harold Mars. We 15:13:24 16 are situated in my office at 3609 Park East in 17 Beachwood, Ohio. 18 Q. Dr. Mars, my name is Steve Hupp. I 19 represent Dr. Mark Melamud in this malpractice 20 case that's been filed against him. 15:13:36 21 Have you ever spoken with me or 22 anyone from my office concerning the facts of 23 this case or concerning this case at all? 24 A. No. 25 Q. Have you ever spoken with these 15:13:46 0011 1 gentlemen seated to my left, Mr. Mishkind or 2 Mr. -- I forgot -- Margolis? 3 A. Yes. I spoke with Mr. Margolis on 4 one occasion. 5 Q. Okay. Concerning this case? 15:14:00 6 A. Yes. 7 Q. You've never spoken with 8 Dr. Melamud concerning this case, have you? 9 A. Not after the -- not as a case. 10 When the patient was in the hospital, I 15:14:09 11 discussed it with him, but not subsequent to 12 that. 13 Q. Okay. Doctor, what is your medical 14 specialty? 15 A. I'm a physician who is specialized 15:14:16 16 in neurological. 17 Q. And how many years have you been 18 practicing neurology? 19 A. Thirty-eight. 20 Q. You've just handed us your CV. I'm 15:14:27 21 going to mark that as Exhibit A. 22 - - - - - 23 (Thereupon, Defendant's Deposition 24 Exhibit A was marked for purposes of 25 identification.) 0012 1 - - - - - 2 Q. Can you tell us, Doctor, a little 3 bit about your medical education and training 4 starting with undergraduate school? 5 A. Yes. My undergraduate school was 15:14:37 6 in honors physics, physiology, done at the 7 University -- McGill University, Montreal, 8 Canada. Graduated from the faculty of science 9 in 1956. I then graduated from the faculty of 10 medicine also at McGill University in 1960. 15:14:52 11 Thereafter, I did a year of 12 internship, a year of a residency in internal 13 medicine, a year of residency in surgery, all 14 at University affiliated hospitals. 15 I then came to Cleveland and did a 15:15:10 16 second year of residency in internal medicine, 17 followed by three years of residency in 18 neurology, all at the Cleveland Clinic. 19 I returned to Montreal and took a 20 position as a teaching fellow at the Montreal 15:15:35 21 Neurologic Institute, that is the neurologic 22 facility affiliated with McGill University. So 23 in essence, I have ten years postgraduate 24 training. 25 Q. Are you board certified in 15:15:45 0013 1 neurology? 2 A. I'm beyond that. I have what is 3 called the fellowship through the Royal College 4 of Physicians and Surgeons given in Canada. In 5 Canada there are two levels, so-called 15:15:56 6 certification. For certification in the 7 specialty, one needs to demonstrate competence. 8 Beyond that, there is a level called fellowship 9 in which the key word is to demonstrate 10 excellence. Once one has attained that level, 15:16:12 11 there is an automatic reciprocity with the 12 American Boards. 13 Q. Doctor, I'm here today or we are 14 here today to talk to you about one of your 15 patients, Mr. Robert Thompson. Do you have any 15:16:24 16 independent recollection of this patient? 17 A. No. 18 Q. Okay. We are going to mark your 19 office chart as Exhibit B in this case. 20 - - - - - 21 (Thereupon, Defendant's Deposition 22 Exhibit B was marked for purposes of 23 identification.) 24 - - - - - 25 Q. Can you tell me, Doctor, when you 15:16:32 0014 1 first saw Mr. Thompson and under what 2 circumstances? 3 A. The original contact with 4 Mr. Thompson was on a referral from Dr. Boris 5 Gliner. And that occurred on March 23, 2004. 15:16:46 6 If I skip into of the history that 7 I took from him, and I'll double back, 8 Mr. Thompson really had no idea why he was even 9 here in my office in the first place. 10 Subsequently, it turned out that he thought 15:17:04 11 that perhaps there was some problem with his 12 memory. 13 So going back to the normal order 14 in which I would take that history, at the time 15 he was a 56-year-old man. There was no history 15:17:15 16 for hypertension, diabetes, nor problems with 17 the heart, stomach, liver or kidney. There was 18 a history of a fracture of the right ankle that 19 had occurred three years earlier, so that would 20 be 2001. At the time I saw him he was 15:17:33 21 unemployed. 22 As I said, he wasn't certain why he 23 was here. There was a question of some 24 impairment of short-term memory. 25 He denied headaches, he denied 15:17:45 0015 1 double-vision or any problems with swallowing. 2 There was some difficulty with smell and that 3 had been attributed to some sinus problems in 4 the past. He denied any paralysis. 5 And then told me that he was on 15:18:03 6 Dilantin. Apparently, that's why I have an 7 arrow here, to indicate that he had been on 8 something called Zyban to stop smoking. 9 However, with that medication, apparently he 10 had some seizures. The last seizure he told me 15:18:26 11 had happened some years previously, four years 12 ago. He was on Dilantin for a total of 400 mg 13 per day, as well as Lexapro for depression. 14 He told me that he had had some 15 scans at Cleveland Clinic Hospital, some blood 15:18:47 16 tests also at South Pointe. He had a blood 17 test for Dilantin level was recently done and 18 he stated was okay. 19 After I got this history, I then 20 went on and did the neurologic examination. 15:19:03 21 Q. And Doctor, you also memorialized 22 your visit with Mr. Thompson on a letter you 23 sent to Dr. Gliner on March 25, 2004? 24 A. Yes. 25 Q. Is that letter a synopsis or a 15:19:12 0016 1 summary of the office visit and the interaction 2 you had with Mr. Thompson that day? 3 A. Yes. I write the notes at the time 4 I'm taking a history. At some time later, 5 which may be days later, I will then dictate 15:19:27 6 this report, but it's based on my handwritten 7 notes. 8 Q. You performed an EEG on 9 Mr. Thompson on March 23, '04. Do you remember 10 that? 15:19:37 11 A. Yes, I did. 12 Q. Okay. In layman's terms, Doctor, 13 what did you find on the EEG? 14 A. Well, the EEG is a test that 15 records the electrical activity of the brain 15:19:44 16 and that test, if I can find the actual report, 17 I don't want to -- it's here somewhere. There 18 it is. I considered this to be a borderline 19 recording. On just one occasion for a very 20 short period of time, there was what I called a 15:20:05 21 low amplitude sharp discharge that occurred 22 through his brain. This occurred only on one 23 occasion. It was very, very transient, but 24 nonetheless I called this having what is termed 25 paroxsymal quality and recommended that a 15:20:28 0017 1 sleep-deprived electroencephalogram be 2 obtained. 3 Q. Why did you want a sleep-deprived 4 EEG? 5 A. Well, to further delineate the 15:20:36 6 degree of epileptiform activity manifested by 7 Mr. Thompson. 8 Q. And at the time you performed the 9 EEG, Mr. Thompson was on Dilantin? 10 A. So he said. 15:20:48 11 Q. Would you ever take a patient off 12 Dilantin and then repeat the EEG? 13 A. Only if there was a question of him 14 coming off the Dilantin and prior to 15 discontinuing Dilantin, I would want to be sure 15:21:03 16 there is no seizure activity. I wouldn't -- I 17 wouldn't stop the -- maybe I did answer the 18 question correctly or maybe you didn't phrase 19 it right. It's just that I don't normally stop 20 the medication in order to see if there is 15:21:18 21 seizure activity. Today what I would be doing 22 would be a prolonged 72-hour monitor. But no, 23 I would not stop anticonvulsive medication just 24 to see if it brings out more seizure activity. 25 MR. MISHKIND: Objection. Move to 15:21:40 0018 1 strike. 2 Q. Was Mr. Thompson's EEG consistent 3 with a patient who had suffered from seizures? 4 MR. MISHKIND: Objection. 5 A. Not entirely. As I said, it was a 15:21:45 6 borderline study. It was enough to raise 7 suspension. 8 Q. Is it true, Doctor, that up to 40 9 percent of patients with seizures can have a 10 negative EEG? 15:21:54 11 MR. MISHKIND: Objection. Calls 12 for an opinion, outside the scope. 13 A. Certainly. A brain wave test or 14 electroencephalogram is basically a recording 15 over a period of time. And during the time of 15:22:04 16 the recording, nothing may be going wrong. I 17 joke that if there is an abnormality, it's 18 before we turn on the switch and if there -- or 19 after we turn off the switch. It's -- so 20 again, it's a very select period of time that 15:22:23 21 we are recording and in no way does it exclude 22 the possibility of a seizure problem if it is 23 normal. 24 MR. MISHKIND: Objection. Move to 25 strike. 15:22:36 0019 1 Q. During your training, did you have 2 any special training or experience in treating 3 patients with seizures? 4 MR. MISHKIND: Objection. 5 A. Yes. 15:22:41 6 Q. Tell us about that. 7 MR. MISHKIND: Objection. 8 A. Well, the treatment of patients 9 with seizures is part and parcel of training in 10 neurology. This is what a neurologist takes 15:22:48 11 care of. 12 Q. And in your practice, do you-all -- 13 both at the time and now, do you still see 14 patients with seizure disorders? 15 MR. MISHKIND: Objection. 15:23:00 16 A. Yes. 17 Q. When was the next time you saw 18 Mr. Thompson? 19 A. The very next time I saw him was in 20 the hospital at South Pointe Hospital on 15:23:06 21 4/15/2004. 22 Q. I have your consult note here, 23 Doctor. Could you read us your findings that 24 you dictated at the time of your consult and 25 then let's just discuss them line by line. 15:23:24 0020 1 A. Fine. This is dated at 10:43 a.m. 2 4/15/2004 and the date correlates with my 3 handwritten note. It's on Mr. Robert Thompson. 4 The reason for consultation: Patient is a 5 57-year-old man who underwent colonoscopic 15:23:47 6 procedure yesterday, went home shortly 7 thereafter, had what was described as a seizure 8 and then a cardiopulmonary arrest. 9 Q. Let me stop you there. Where did 10 you obtain that history? 15:24:04 11 A. Probably from the chart. 12 Q. What's the next line? 13 A. Apparently this persisted for 14 approximately 30 minutes and he was then 15 brought to hospital and admitted. There is an 15:24:17 16 antecedent history for a seizure disorder and 17 had been on Dilantin; however, was 18 therapeutic -- was subtherapeutic. Level was 19 3.9 and patient was given supplemental 20 Dilantin. 15:24:35 21 Q. Why would a subtherapeutic level of 22 Dilantin be significant? 23 MR. MISHKIND: Objection. 24 A. Well, that would indicate that he 25 might have an increased predisposition towards 15:24:46 0021 1 having a seizure. One gives medication in 2 order to prevent or attenuate seizure activity 3 and for Dilantin there is an optimum level. 4 MR. MISHKIND: Objection. Move to 5 strike. 15:25:02 6 Q. What is the optimal level for -- 7 MR. MISHKIND: Objection. 8 A. -- optimum level would be between 9 10 to 20 mg percent. 10 MR. MISHKIND: Move to strike. 15:25:09 11 Q. Doctor, when you wrote this consult 12 note, were you Mr. Thompson's treating 13 neurologist? 14 A. I was the -- Oh, you mean for the 15 seizure disorder? 15:25:19 16 Q. For this admission. Why was it 17 that you were called to do this consult? 18 A. I was called to see Mr. Thompson, 19 presumably because of the effects on the brain 20 of that cardiopulmonary arrest. 15:25:30 21 Q. And did Dr. Boris Gliner call you 22 for this consultation? 23 A. Yes. He was the attending 24 physician. 25 Q. Do you have any memory of speaking 15:25:43 0022 1 with Mrs. Thompson or anyone from the family 2 either before or after this consultation? 3 A. I had no contact with the family 4 that I can recall. 5 Q. Tell me -- read on with your 15:25:53 6 physical description. 7 A. Well, the physical examination at 8 the time was that he was on full respiratory 9 support. That meant that he was intubated on a 10 respirator. He was deeply comatose. There was 15:26:06 11 no response to either verbal stimulation or 12 chest pain stimulation. 13 And for the members of the jury or 14 whoever, chest pain stimulation is my rubbing 15 very strongly over the chest which generates a 15:26:22 16 rather painful stimulus. People respond rather 17 well to that unless they are deeply comatose. 18 He had no response to that. 19 His pupils of the eyes were three 20 millimeters. They did not react to light. 15:26:39 21 There was already noted some change in the 22 water content of the cornea. I call that 23 corneal opacification. And there was a loss of 24 clarity. 25 Doll's eyes movement were absent. 0023 1 Now let me demonstrate what doll's eyes 2 movement are. If I move my head like this, the 3 eyes go down. If I move it up like that, it 4 goes up. So the eyes move according to how the 5 head is positioned and people who have had 15:27:06 6 doll's in their experience will know exactly 7 what I mean by that. In this situation there 8 were no such movements. So the eyes remained 9 fixed like that. They did not move as they 10 head was moved. 15:27:23 11 Q. What does that tell you as a 12 neurologist? 13 A. That tells me that the brain stem 14 reflexes are gone. 15 A -- he was flaccid. That is there 15:27:32 16 was no tone in all the muscles. When I lifted 17 the arm, it just flopped down like so, and the 18 same for the leg. There was no muscle tone. 19 He was already developing cyanosis, 20 the blueing around the ear lobes. His hands 15:27:51 21 were blue and the lower extremities were blue, 22 and that would indicate that the blood flow to 23 those areas of the body were compromised. 24 A cold caloric test was performed 25 bilaterally with no response. 15:28:07 0024 1 Q. Explain that test. 2 A. To explain that, what I do is I 3 take cold water, ice water and I inject it into 4 the canal of the ear. Believe me, folks, it's 5 not a pleasant experience. What happens is 15:28:18 6 that you are stimulating the inner ear by 7 injecting the cold water. What normally 8 happens in people is that the eyes move to the 9 direction of the cold water. So if I'm 10 injecting cold water here, the eyes will turn 15:28:35 11 in that direction, and they will do so fairly 12 briskly. If an individual is reasonably alert, 13 that will be associated with a nausea and 14 probably vomiting. Here there was absolutely 15 no response at all. I injected the cold water, 15:28:54 16 again no movement of the eyes; the eyes 17 remained fixed. And again, that would indicate 18 there was a loss of brain stem reflexes. 19 So my impression was that 20 he -- that this patient, Mr. Thompson, had 15:29:13 21 profound anoxic encephalopathy. To explain 22 encephalopathy means an impairment of brain 23 function. Anoxic, my impression that that 24 was -- that impaired brain function was due to 25 an inadequate supply of oxygen at some point in 15:29:31 0025 1 time. 2 I said he had an antecedent history 3 of a seizure disorder. There was a history of 4 having a seizure and I speculated as to whether 5 he may have had an irregularity of his heart as 15:29:44 6 a consequence of that. And then I commented 7 that this is a fairly common occurrence. 8 Q. What was fairly common? 9 A. The development of a cardiac 10 arrythmia in association with a seizure. 15:29:58 11 Q. Why does that occur? 12 MR. MISHKIND: Objection. 13 A. It occurs because what will happen 14 with a seizure is that the electrical activity 15 in the brain may secondarily trigger an 15:30:10 16 abnormality in the electrical activity of the 17 heart. So then the heart may either stop 18 beating or it may beat excessively rapidly. In 19 any case, the end result would be a inefficient 20 pumping of blood up into the brain with a 15:30:31 21 resultant loss of oxygen to the brain. 22 I have done some further research 23 and equally important in this is, in addition 24 to a cardiac arrythmia is an impairment in 25 normal breathing. It's called respiratory 15:30:50 0026 1 apnea. An individual stops breathing in 2 association with a seizure and that causes 3 congestive heart failure, pulmonary edema and 4 also death. 5 MR. MISHKIND: Objection. Move to 15:31:06 6 strike. 7 Q. In your experience, Doctor, have 8 you ever seen a patient suffer anoxic 9 encephalopathy or death as a result of a 10 seizure? 11 MR. MISHKIND: Objection. 12 A. Yes. 13 MR. MISHKIND: Move to strike. 14 Q. And in your experience, have you 15 seen patients suffer seizure while on Dilantin? 15:31:19 16 MR. MISHKIND: Objection. Move to 17 strike. 18 A. Yes. 19 MR. MISHKIND: Calling for expert 20 opinions. 15:31:26 21 Q. Would it be, in this case if the 22 level of Dilantin was subacute or 23 subtherapeutic, would that be a further 24 indication as to your opinion or your 25 diagnostic impression that this patient had 15:31:36 0027 1 suffered a seizure? 2 MR. MISHKIND: Excuse me. 3 Objection to form and objection to the opinion 4 question being asked. 5 Q. I am going to rephrase that 6 question, Doctor, because that's a legitimate 7 objection. 8 You came to a conclusion in this 9 case as to the cause of Mr. Thompson's 10 cardiopulmonary arrest; is that correct? 15:31:55 11 MR. MISHKIND: Objection. 12 A. Did I come to an conclusion as to 13 the cause of the pulmonary arrest at the time I 14 saw the patient, yes, I did. 15 Q. Okay. Is that considered or is 15:32:09 16 that known as your diagnostic impression for 17 this patient? 18 A. Yes. 19 Q. Okay. What was your diagnostic 20 impression for Mr. Thompson on the day you saw 15:32:16 21 him, April 15, 2004? 22 A. That he had a seizure antecedent to 23 the development of the anoxic encephalopathy. 24 MR. MISHKIND: Objection. 25 A. That is taken from the chart of the 15:32:31 0028 1 patient as given in the emergency room, I 2 believe. I haven't seen that since that time. 3 Q. Okay. Doctor, based on the 4 information you had available to you back in 5 2004, why did you conclude that his anoxic 15:32:42 6 encephalopathy was due to a seizure? 7 A. I cannot make a direct conclusion; 8 I can only make an indirect conclusion. The 9 indirect conclusion is that he had a seizure, 10 he then had a cardiopulmonary arrest. And the 15:33:00 11 anoxic encephalopathy would then result from 12 the cardiopulmonary arrest. So there are three 13 stages involved. 14 MR. MISHKIND: Objection. Move to 15 strike. 15:33:12 16 Q. Were you aware at the time that you 17 performed your consult note that Mr. Thompson 18 had the diagnosis of peritonitis? 19 A. No. 20 Q. Okay. Were you aware at the time 15:33:21 21 of your consult note that he had had free air 22 in his abdomen or a perforation of his abdomen? 23 A. I make no comment of that here. 24 Q. Okay. In the office chart that you 25 have, there is -- there are x-rays from the 15:33:33 0029 1 hospital which indicate there was free air in 2 the abdomen; is that correct? 3 A. Yes, but I did not have that 4 available to me when I dictated that report. 5 Q. Doctor, are you still in active 15:33:46 6 practice? 7 A. Yes. 8 Q. Full time? 9 A. Yes. 10 Q. And you still have privileges at 15:33:51 11 any hospitals? 12 A. Yes. 13 Q. And you still have a license to 14 practice medicine in the state of Ohio? 15 A. I do. 15:33:58 16 MR. HUPP: Doctor, that's all the 17 questions I have for you. Thanks. 18 MR. MISHKIND: Let's go off the 19 record for one moment, please. 20 THE VIDEOGRAPHER: Going off the 15:34:18 21 record at 3:34. 22 (Recess taken.) 23 THE VIDEOGRAPHER: We are back on 24 the record at 3:36. 25 EXAMINATION OF HAROLD MARS, M.D. 0030 1 BY MR. MISHKIND: 2 Q. Hi, Doctor. My name is Howard 3 Mishkind. I don't believe you and I have ever 4 met before, have we? 5 A. I don't think so. I know your 15:36:46 6 colleague. 7 Q. Right. Nice to meet you, sir. 8 I want to ask you some questions 9 about your involvement in Mr. Thompson's care 10 going back to the appointment that occurred 15:36:57 11 prior to the admission to the hospital. 12 A. Yes. 13 Q. You would have seen Mr. Thompson 14 one time before he was admitted and that would 15 be March 23, 2004, correct? 15:37:11 16 A. Right. 17 Q. And that appointment was on 18 referral by Dr. Gliner, correct? 19 A. Yes. 20 Q. And you did a neurological 15:37:17 21 consultation and a fairly detailed exam, 22 correct? 23 A. Correct. 24 Q. Can we agree that at the time you 25 knew that Dr. Gliner was Mr. Thompson's primary 15:37:27 0031 1 care physician? 2 A. Yes. 3 Q. I think you told us that you don't 4 independently remember Mr. Thompson, correct? 5 A. Right. 15:37:38 6 Q. But there's nothing in the record 7 that would suggest that he wasn't cooperative 8 or compliant in your examination of him, was 9 there? 10 A. No. 15:37:52 11 Q. At the time that he gave you a 12 history, I think you told Mr. Hupp that he said 13 he experienced seizures after taking Zyban in 14 1998 to help him try to stop smoking? 15 A. Yes. I believe that's the story he 16 gave me. 17 Q. And he experienced, then, four 18 seizures, according to the history that you 19 marked down, since 1998, correct? 20 A. Yes. 15:38:14 21 Q. And you were making notes at the 22 time that you were seeing him at or around the 23 time of the exam, correct? 24 A. Yes. I was getting the history 25 from him and writing at the same time. 15:38:24 0032 1 Q. And Dr. Mars, Zyban has an 2 ingredient in it that's similar to Wellbutrin 3 that's known to lower a patient's seizure 4 threshold; isn't that true? 5 A. That is true. Also I believe Zyban 15:38:37 6 has some stimulant effect. 7 Q. Okay. 8 A. And that also can cause 9 decreased -- or it can lower threshold for 10 seizures. 15:38:49 11 Q. And did you know that Mr. Thompson 12 was on Lexapro at the time that he had had his 13 colonoscopy the day before he arrested? 14 A. I assume he was. He was on the 15 Lexapro when he was in my office. 15:39:05 16 Q. And Lexapro can also lower a 17 patient's seizure threshold, true? 18 A. Yes. 19 Q. In your practice, you've seen 20 seizures provoked by certain medications taken 15:39:15 21 to either stop smoking or being administered 22 for depression, have you not? 23 A. It, again, can lower seizure 24 threshold. Whether a usual dose of Lexapro in 25 and of itself is adequate to cause a seizure is 15:39:32 0033 1 something that's questionable, but I think it 2 may be a factor. 3 Q. Okay. Certainly when he gives you 4 a history of Zyban or a medication that he took 5 being the inciting event for his seizures, that 15:39:43 6 would certainly be consistent with a history 7 that you've heard from time to time, correct? 8 MR. HUPP: Objection. 9 A. You know, again, it is very 10 probable that the Zyban may lower seizure 15:39:59 11 threshold and therefore make it easier for a 12 seizure to become manifest, but it's not likely 13 that it caused the seizure. 14 Q. He gave you a history -- when you 15 talked to him, he indicated by history that he 15:40:17 16 had not had any recent seizures in the last 17 three or four years? 18 A. That was correct. That was the 19 implication. 20 Q. And certainly as a neurologist, you 15:40:29 21 would have asked him a number of questions 22 about his seizure history, true? 23 A. Yes. 24 Q. Including how often he had had them 25 and if he had had recent seizures to describe 15:40:40 0034 1 the nature of the seizures? 2 A. Yes. But he said he had had none 3 for four years. 4 Q. Sure. Okay. And did you ask him 5 during the history whether or not his seizures 15:40:57 6 were nocturnal or non-nocturnal in nature? 7 A. No, I did not. 8 Q. Do you know whether Mr. Thompson 9 had had a history of unprovoked seizures? 10 A. Again, I did not -- I do not. The 15:41:18 11 fact that the last seizure occurred four years 12 ago made this a lesser level of concern. If he 13 had been having active seizures, I would have 14 gone into the details in greater length. 15 Q. Sure. And, Doctor, when you saw 15:41:35 16 him at that time, you recognized him, as a 17 neurologist, the patient may have a seizure 18 that is technically a nonepileptic seizure, 19 correct? 20 A. Well, now we are parsing words. 15:41:53 21 Q. Let me rephrase it perhaps. A 22 patient can have a seizure and not truly have 23 epilepsy, correct? 24 MR. HUPP: Objection. 25 A. Okay. It's a question now of 15:42:08 0035 1 definition. Every single one of us can be made 2 to have a seizure if the right buttons are 3 pushed. I mean if I drop your blood sugar very 4 low and if I give you in addition cocaine or 5 amphetamines or something like that, yes, you 15:42:23 6 can have a seizure. Does this mean that you 7 are epileptic, probably not. 8 Q. Fair enough. 9 A. And I guess by definition one would 10 have to say that an individual that has 15:42:36 11 seizures that are not related to a very 12 specific extraneous event may be epileptic. In 13 fact, it's estimated that one out of every ten 14 people in the world, during their life, has had 15 a seizure. That doesn't mean ten percent of 16 the world is diagnosed with epilepsy. 17 Q. Sure. 18 A. I think the actual number is one 19 percent of the world is diagnosed as epilepsy. 20 Q. Great. Thank you. 15:43:02 21 In addition to dropping blood sugar 22 that can be an inciting event for a patient to 23 have a seizure you also recognize that 24 infection can also be an inciting event to 25 cause a patient to have an infection [sic], 15:43:16 0036 1 correct? 2 A. Yes, it can through a variety of 3 means. If, for example, the infection is very 4 widespread, it can cause -- it can cause direct 5 involvement within the brain. So you can get 15:43:32 6 meningitis or you can have a meningeal 7 encephalitis and that can cause a seizure. 8 If, in association with an 9 infection, if the infection is overwhelming and 10 there is, as a result of that overwhelming 15:43:46 11 infection, a drop in blood pressure, sepsis, 12 then that also can provoke a seizure in someone 13 who, again, tends to be more susceptible to 14 that. 15 Q. Doctor, what I said before, and I 15:44:01 16 may have misspoke, I said can an infection 17 cause an infection. I meant can an infection 18 be the precipitating event to cause a seizure. 19 A. I understood -- 20 Q. And you understood my question. 15:44:11 21 A. Yes. 22 Q. I just want to make sure that it 23 was clear. 24 A. I understood your question and 25 that's the answer. 15:44:15 0037 1 Q. So a patient that is septic -- 2 sepsis can be a precipitating factor to cause a 3 patient to experience a seizure, correct? 4 A. Yes. 5 MR. HUPP: Objection. 15:44:30 6 A. If you have an infection, but 7 again, just having an infection in and of 8 itself is not enough to produce a seizure. 9 Q. I understand, Doctor. My only 10 question was that if you have clinical evidence 15:44:39 11 of sepsis, sepsis is a sufficient stressor to 12 cause a patient to experience a seizure, 13 correct? 14 A. No. I don't think so. I think 15 that the word "sepsis" has to be extended -- 15:44:59 16 you know, again, sepsis just means an 17 infection. If we are talking of an infection 18 that is severe enough to cause accumulation of 19 toxic products in the body, or to drop the 20 blood pressure, or be associated with a drop in 15:45:19 21 the amount of oxygen if it's in the lungs or 22 associated with a high fever, then these are 23 parameters that are associated with sepsis that 24 can cause or accentuate seizure activity. 25 Q. And certainly a patient that has 15:45:38 0038 1 hypotension that has a abnormally low white 2 blood cell count of 2,000, that would be 3 consistent, would it not, with a patient who is 4 septic? 5 MR. HUPP: Objection. Beyond the 15:45:54 6 scope. 7 A. No. A low white blood count would 8 not be a correlate for sepsis. You would have 9 a high white count, unless the infection is so 10 overwhelming as to impair the immune system. 15:46:11 11 MR. HUPP: Objection. 12 Q. So if you have a 2,000 white blood 13 cell count, that's abnormal, true? 14 A. Well, it depends on the individual. 15 I think, you know, we are talking about a black 15:46:21 16 individual, and black individuals tend to run 17 low blood -- low white counts relative to the 18 general population in the first place. So it 19 would be important to know what was his white 20 count previously, and if the white count 15:46:37 21 previously was 2,400 and now you are talking 22 2,000, there's really no difference between the 23 two. 24 Q. Doctor, let's go back to the 25 examination that you did in March of 2004 on 15:46:49 0039 1 March 23. 2 A. Yes. 3 Q. He was alert, and oriented, 4 correct? 5 A. Yes. 15:47:02 6 Q. That's a normal finding, correct? 7 A. Yes. 8 Q. The exam that you did generated a 9 near perfect score of 29 out of 30 on the mini 10 mental examination, correct? 15:47:15 11 A. That is correct. 12 Q. His speech was normal with no 13 receptive or expressive dysphagia? 14 A. Yes. 15 Q. That's also a normal neurological 15:47:22 16 finding, correct? 17 A. Yes. 18 Q. His pupils were round, regular and 19 reacting to light and accommodation, true? 20 A. Yes. 15:47:30 21 Q. Normal neurological findings? 22 A. All normal. 23 Q. External occular movement were 24 normal, true? 25 A. Yes. 15:47:37 0040 1 Q. You noted no exudates during the 2 examination, correct? 3 A. Correct. 4 Q. What is that? What are exudates? 5 A. No weeping area, no pusy areas. 15:47:45 6 Q. His face and soft pallet were 7 symmetrical, correct? 8 A. Correct. 9 Q. Normal finding? 10 A. Yes. 15:47:55 11 Q. His carotid pulsations were two 12 plus with no bruits, that's a normal finding, 13 correct? 14 A. Correct. 15 Q. His sensation to light touch, pin 15:48:01 16 prick and vibration were also normal, correct? 17 A. Yes. 18 Q. And his finger to nose to finger 19 and fine finger movements were well with -- 20 were well done with no cerebellar dysfunction, 15:48:13 21 correct? 22 A. That's correct. 23 Q. Gait was normal, that was also a 24 normal finding? 25 A. Yes. 15:48:21 0041 1 Q. And the Romberg test, that's 2 another test that neurologists use to look for 3 any abnormal neurological deficits? 4 A. Yes. 5 Q. And that was normal, correct? 15:48:31 6 A. Yes. 7 Q. And his cognitive disorder, what 8 was his cognitive disorder that you described 9 in his records? Just some memory? 10 A. Yeah. He felt that he had a memory 15:48:45 11 problem, that's why I said that he has 12 cognitive disorder. I could not verify that on 13 the mini mental test. 14 Q. Okay. Great. Thank you. 15 And we've already talked about the 15:48:54 16 EEG. It was borderline and I think you would 17 certainly indicate that it would be 18 inconclusive in terms of diagnosing any seizure 19 disorder? 20 A. Well, it was borderline. It was 15:49:08 21 suggestive, I said. So it doesn't exclude but 22 it's certainly had a paroxsymal quality 23 consistent with a seizure disorder. 24 Q. But the fact that it would be 25 consistent, can we agree that, based upon your 15:49:21 0042 1 exam and this study, you could not say to a 2 reasonable degree of medical probability that 3 he had a seizure disorder? 4 MR. HUPP: Objection. 5 A. Well, no, that's not true. On the 15:49:31 6 basis of his history, I can most certainly say 7 he had a seizure disorder. 8 Q. But at the time of the examination 9 based upon the EEG, he was not demonstrating 10 any clinical signs that would indicate that he 15:49:42 11 was experiencing a seizure at that time? 12 A. That's correct. There is no 13 clinical signs that he was having a seizure 14 during the time I was seeing him. 15 Q. Okay. And you weren't -- to your 15:49:50 16 knowledge, you weren't seeing Mr. Thompson, Bob 17 Thompson for management of a seizure disorder, 18 were you? 19 A. No. He was sent, again, as I said 20 initially, he wasn't sure why he was sent and 15:50:04 21 it turns out he was sent because he was 22 complaining of a memory problem. 23 Q. Fair enough. 24 Do you know what Mr. Thompson's 25 Dilantin levels had been prior to your office 15:50:14 0043 1 visit? 2 A. I asked -- he said they were fine, 3 that they were normal. 4 If I go to the actual notes from 5 Dr. Gliner, I think I saw one note that said 15:50:29 6 his level was 11.4 or some such thing. 7 Q. Actually, Doctor, one of the 8 levels, and I'll just ask you to assume that 9 this, that one of levels that had been recently 10 taken for Mr. Thompson was 6.4 in March of 15:50:45 11 2004. That would be an abnormal level as well, 12 correct? 13 A. Yeah. There it is. 6.4 would be 14 low. 15 Q. So what I just stated was accurate, 15:50:57 16 correct? 17 A. Correct. 18 Q. And Doctor, not all patients that 19 have subtherapeutic Dilantin levels experience 20 seizures, do they? 15:51:05 21 A. That is correct. 22 Q. Can we agree that patients can 23 function with subtherapeutic levels on Dilantin 24 without experiencing seizures? 25 A. Yes. That is correct. That's 15:51:13 0044 1 true. 2 Q. Can you agree that -- can we agree 3 that the correct dose of an anticonvulsant 4 medication is that dose that prevents further 5 seizures without undue side effect, regardless 15:51:25 6 of what the patient's Dilantin blood levels 7 are? 8 MR. HUPP: Objection. 9 A. You know, I don't think so, because 10 what may be an effective level at this moment 15:51:32 11 in time for that individual may change down the 12 road. Again, there are many things that may 13 precipitate seizures or increase the 14 sensitivity. If, for example, you miss some 15 sleep, if you are fasting for a prolonged 15:51:47 16 period of time and your blood level goes down, 17 or if, in fact, you develop sepsis, these 18 situations can all accentuate the likelihood of 19 having a seizure. So you really want people to 20 be within what are -- what is called a 15:52:05 21 therapeutic level in order to minimize that 22 possibility. 23 Q. On the date that you saw him, you 24 didn't feel that it was necessary to check his 25 Dilantin levels, correct? 15:52:16 0045 1 A. He had told me that it was normal. 2 Q. But I'm just -- 3 A. No, I did not check it on that 4 date. 5 Q. Okay. Now, when you saw -- let's 15:52:26 6 shift to the hospital for a moment. When you 7 saw Mr. Thompson on April 15, he was in 8 critical condition, correct? 9 A. He was in more than critical 10 condition, he was dead. 15:52:46 11 Q. Brain dead, essentially? 12 A. Yes. 13 Q. And you indicated on direct 14 examination that you did not know at the time 15 that you prepared your consult note that the 15:52:54 16 radiologist had seen on an x-ray that there was 17 a large amount of free intraperitoneal air, 18 correct? 19 A. No. I don't think that would have 20 even been relevant to my consultation at the 15:53:10 21 time. 22 Q. Okay. And you didn't know at that 23 time that, according to Dr. Melamud, who had 24 seen him before your exam, that he had had a 25 perforation of his colon and had developed 15:53:29 0046 1 peritonitis? 2 A. I think I did know that, but again, 3 it wasn't relevant to specific consultation 4 that I was there for. 5 Q. And you were really attempting to 15:53:40 6 determine at that point, and correct me if I'm 7 wrong, what his prognosis was and whether there 8 was anything that could be done to treat this 9 man who had an obviously very significant 10 neurological injury? 15:53:55 11 A. Yes. 12 Q. And that was really the principal 13 reason that Dr. Gliner had asked you to see 14 him, correct? 15 A. Yes. To see exactly what the 15:54:02 16 neurologic status was. 17 Q. Sure. All right. 18 And when he arrived by ambulance, 19 and I know you said that you believe you got 20 the history from the records because you did 15:54:19 21 not talk to Mrs. Thompson, but if the records 22 indicate that when he arrived by ambulance, 23 that his pupils were fixed and dilated, that is 24 certainly a neurologic finding that is 25 universally associated with a poor outcome, 15:54:33 0047 1 correct? 2 A. Correct. 3 Q. And you dictated your note at 10:43 4 a.m. on April 15? 5 A. I believe that's what it shows, 15:54:48 6 yes. 7 Q. According to the records, 8 Dr. Melamud had seen the patient at 9 approximately eight a.m. on the same date that 10 you saw him. So your consult, if the timing is 15:55:02 11 correct, you would have seen him after 12 Dr. Melamud had been in to the hospital? 13 A. Right. I accept that. 14 Q. In your note you indicated that he 15 had had a colonoscopy "yesterday," meaning on 15:55:20 16 April 14, correct? 17 A. Yeah. Yes. 18 Q. And went home. And you indicated 19 that he shortly thereafter was described as 20 having a seizure, correct? 15:55:31 21 A. Yes. 22 Q. Now, if that history which you 23 believe was in the record, if it's not 24 supported by the record, if it's not in the 25 record that he went home and then shortly 15:55:51 0048 1 thereafter had a seizure, do you have any idea 2 where you would have gotten that history from? 3 MR. HUPP: Objection. 4 A. No, I don't. Either it was in the 5 record or the nurse told me, but other than 15:56:01 6 that, I would have no way of knowing. 7 Q. And certainly in terms of a 8 temporal relationship, it's important to know 9 when the patient developed a seizure, is it 10 not? 15:56:16 11 A. Well, you've just told me that when 12 the patient came to the emergency room, the 13 pupils were already fixed and dilated, so the, 14 you know, cardiopulmonary arrest had occurred 15 prior to that. 15:56:28 16 Q. But certainly things other than a 17 seizure can cause cardiopulmonary arrest, 18 correct? 19 A. Yes. 20 Q. And there are factors that we've 15:56:39 21 talked about in terms of sepsis that can cause 22 a patient to experience a seizure, correct? 23 MR. HUPP: Objection. 24 A. Under the conditions that I said. 25 Just sepsis in and of itself would not, I don't 15:56:54 0049 1 believe, be adequate. You would have to have 2 an overwhelming infection, one that is 3 associated with a high fever, a drop in the 4 amount of oxygen that's being carried in the 5 blood, a drop in blood pressure. Those are the 15:57:10 6 parameters associated with an overwhelming 7 sepsis that can result in a seizure or in a 8 cardiac arrythmia, independent of a seizure. 9 Q. You also said that -- well, Doctor, 10 in your history, you indicate that the seizure 15:57:36 11 which you believe he occurred persisted for 12 approximately 30 minutes? 13 A. Well, somewhere I got that 14 information. I can't tell you exactly where 15 now. We're talking four years. 15:57:57 16 Q. I understand that, Doctor, but let 17 me finish my question, please. 18 My only -- it's important -- I mean 19 as we look back or as the jury looks at the 20 records, what you are telling me is that this 15:58:03 21 would have been a history that you would have 22 gotten either from one of the records or from 23 one of the nurses who -- 24 A. Yes. 25 Q. So that it's conceivable that that 15:58:14 0050 1 history of him having a seizure for 30 minutes 2 may, in fact, be inaccurate? 3 MR. HUPP: Objection. 4 A. It may. That may be. That is 5 true. It was not witnessed by me. 15:58:28 6 Q. And where -- you don't know whether 7 this patient, if in fact he did have a seizure, 8 whether it was witnessed or unwitnessed by 9 anyone, do you? 10 A. I don't know for a fact, but I 15:58:39 11 would presume that his wife must have been in 12 the vicinity. 13 Q. Okay. And because if he had a 14 seizure sufficient enough to have caused this 15 kind of an injury, if his wife was there, you 15:58:51 16 would expect that this would be something that 17 would be noticed? 18 A. Yes. She would most certainly -- 19 somebody called the emergency medical squad. 20 Q. Right, but that's assuming that if 15:59:02 21 he had a seizure sufficient enough to cause a 22 cardiopulmonary arrest and his wife was at the 23 hospital -- at the home, would you expect that 24 she would have witnessed evidence of a seizure? 25 MR. HUPP: Objection. 15:59:16 0051 1 A. I would -- it depends on how long. 2 The 30 minutes may not be 30 minutes. It may 3 be that he did not breathe for 30 minutes. 4 It's hard to know exactly what people meant by 5 that. 15:59:33 6 Q. Doctor -- 7 A. And I'm not absolutely sure, in 8 fact, when I say apparently this persisted for 9 30 minutes, whether that refers to the seizure 10 or to the cardiopulmonary arrest. It probably 15:59:41 11 refers to the cardiopulmonary arrest rather 12 than to the duration of the seizure. 13 Q. And certainly if you are going to 14 have a cardiopulmonary arrest that lasts for 30 15 minutes, you can agree that whether it's 16:00:00 16 Mr. Thompson or any other patient, you would 17 want to have that patient in the hospital as 18 opposed to without any medical attention, 19 correct? 20 MR. HUPP: Objection. Calls for 16:00:09 21 expert testimony. 22 A. Well, if you are having a 23 cardiopulmonary arrest for 30 minutes, it's 24 over. 25 Q. Right. But if -- you minute one, 16:00:16 0052 1 minute two, minute three, if you have someone 2 that's going to arrest because of some change 3 in their hemodynamic status, can we agree 4 having that patient laying in their bed as 5 opposed to being in a hospital under the 16:00:30 6 watchful eye of a physician, being in the 7 hospital is a better place for that patient to 8 be? 9 MR. HUPP: Objection. Outside the 10 scope. 16:00:38 11 A. The answer is yes. If you are 12 going to have a cardiopulmonary arrest, the 13 best place to have it is in an intensive care 14 or in an emergency room. 15 MR. HUPP: Objection. Move to 16:00:46 16 strike. 17 Q. And that's the best place to be if, 18 in fact, there is going to be appropriate, what 19 we refer to as the ABCs of resuscitation to 20 save the patient, correct? 16:00:55 21 MR. HUPP: Objection. 22 A. Again, if you are going to have an 23 arrest, the best place to have that arrest is 24 in the presence of someone who's able to 25 immediately provide resuscitation for that 16:01:08 0053 1 arrest. 2 MR. HUPP: Move to strike. 3 Q. You told Mr. Hupp that you would 4 have talked to Dr. Melamud at the hospital but 5 that would have been the last time that you 16:01:37 6 would have talked to him -- 7 A. About this case. 8 Q. -- about this case? 9 A. Yes. 10 Q. Do you specifically remember 16:01:42 11 talking to Dr. Melamud about this patient? 12 A. Not specifically, but it would be 13 my usual pattern in this sort of a situation to 14 talk to them. 15 Q. Well, at the time that he was 16:01:55 16 admitted, Dr. Gliner was the -- 17 A. Or to Dr. Gliner. You know. To 18 one of the physicians, probably, probably to 19 Dr. Gliner more likely than to Dr. Melamud, 20 although I may have talked to them both. I 16:02:13 21 cannot tell you for sure. 22 Q. Do you know who Dr. Denholm is? 23 A. Yes. 24 Q. And -- 25 A. And I may have talked to 16:02:23 0054 1 Dr. Denholm, too. 2 Q. And if Dr. Denholm indicates that 3 Mr. Thompson was in septic shock, would you 4 have any reason to dispute him on that? 5 MR. HUPP: Objection. 16:02:34 6 A. No, but I would like to know what 7 the parameters he used to make that diagnosis. 8 Q. Sure. And we are basing it, just 9 as we are basing your recollection, on the note 10 on referring to what Dr. Denholm indicated in 16:02:41 11 the records and certainly the indication by 12 Dr. Denholm that there was intraperitoneal air 13 consistent with a perforation of the colon, you 14 would have no basis to dispute that, would you? 15 A. No, I would not. 16:02:56 16 Q. And if Dr. Melamud, an hour or so 17 before you saw him, made a note indicating that 18 Mr. Thompson had peritonitis secondary to a 19 polypectomy perforation with a hot biceps -- 20 biopsy forceps, you would certainly have no 16:03:15 21 reason to dispute Dr. Melamud, would you? 22 A. No, I would not. 23 Q. And we can certainly agree that 24 peritonitis can lead to sepsis, correct? 25 A. Yes. 16:03:24 0055 1 Q. And that Mr. Thompson had -- strike 2 that. 3 Can we agree that Mr. Thompson died 4 in the setting of a colonic perforation that 5 resulted in peritonitis? 16:03:40 6 MR. HUPP: Objection. Move to 7 strike any answer. 8 A. We can agree that Mr. Thompson had 9 a colonoscopy, that he had a perforation, that 10 that resulted in the presence of air in the 16:03:49 11 belly and that there was evidence of 12 peritonitis. 13 Q. Okay. 14 MR. HUPP: Move to strike. 15 Q. And then ultimately -- you never 16:03:56 16 saw the autopsy, did you? 17 A. No, I did not. 18 Q. Okay. And the coroner -- do you 19 know why an autopsy was done in this case? 20 A. Well, autopsies are generally done 16:04:05 21 in situations where there is uncertainty as to 22 the cause of death. 23 Q. Okay. And the coroner is someone 24 that is not, for lack of better terminology, 25 hired by any side to look at all of the 16:04:18 0056 1 evidence and to make a determination as to the 2 legal cause of death? 3 MR. HUPP: Objection. 4 A. Actually, I believe he is elected. 5 Q. Elected. Okay. Certainly not 16:04:27 6 hired by Dr. Melamud or by the Thompson family? 7 A. No. 8 Q. Sepsis can cause a cardiac 9 arrythmia, correct? 10 MR. HUPP: Objection. 16:04:35 11 A. Sepsis, again, if associated with 12 the parameters I spoke of, can, indeed, cause a 13 cardiac arrythmia. 14 Q. And you would certainly agree that 15 peritonitis can trigger a seizure, correct? 16:04:47 16 MR. HUPP: Objection. Move to 17 strike. 18 A. Peritonitis, if associated with an 19 overwhelming sepsis that results in, again, a 20 high fever or a drop in blood pressure, can 16:04:55 21 cause arrythmia. 22 Q. And high fever could also be a very 23 low fever as well, correct? 24 MR. HUPP: Objection. 25 A. No. An actual fact, a low 16:05:05 0057 1 temperature is protective for seizures. It's 2 less likely to cause a seizure. 3 MR. HUPP: Objection. 4 A. But a low temperature in this 5 situation would be a manifestation of a severe 16:05:21 6 brain damage that he had where you become what 7 is called isothermic. Your temperature starts 8 to approach room air temperature. 9 Q. Doctor, ultimately the cause of 10 Mr. Thompson's death, if you know, was the 16:05:39 11 anoxic encephalopathy? 12 A. No. It was more than that. It was 13 the entire run-down of the entire systems. He 14 probably had congestive heart failure or 15 pulmonary edema. I wouldn't be surprised if 16:05:56 16 the postmortem shows that he had a lot of water 17 in his lungs. I would be most interested to 18 know that. And it may show that there was some 19 damage to the heart muscles. It may show that 20 there may have been some damage within the 16:06:13 21 brain cells as well. So it's a variety of 22 these things that caused the death. Death is 23 caused by a whole bunch of mechanisms stopping 24 function. 25 Q. Okay. Doctor, I want to talk about 16:06:29 0058 1 just a couple other things and then we'll be 2 done. You received a letter from Mr. Margolis 3 on October 17 concerning our representation of 4 Mr. Thompson, correct? 5 A. Somewhere I believe I did, yes. 16:06:44 6 Q. And I -- 7 A. There it is, yes. 8 Q. -- had asked for an opportunity to 9 meet with you? 10 A. Yes. 16:06:55 11 Q. And Mr. Margolis called on several 12 occasions in an attempt to try to schedule a 13 meeting with you, didn't he? 14 MR. HUPP: Objection. 15 A. I don't know how many times he 16:07:07 16 called, but I ultimately did speak with 17 Mr. Margolis. 18 MR. HUPP: Objection. 19 Q. Okay. And you indicated, did you 20 not, to Mr. Margolis that you basically refused 16:07:16 21 to meet with Mr. Margolis, didn't you? 22 MR. HUPP: Objection. 23 A. What I told Mr. Margolis -- 24 Q. Doctor, did you tell him that you 25 did not want to meet with him? Yes or no? 16:07:24 0059 1 MR. HUPP: Objection. Let him 2 answer the question. 3 A. Well, I need to answer it in my 4 way. That I would not want to get involved in 5 a medical malpractice case that involved a 16:07:34 6 hospital that I worked at and with individuals 7 that I knew. 8 Q. And in fact, you told Mr. Margolis, 9 did you not, that you were a very close 10 personal friend of Dr. Melamud? 16:07:48 11 A. No. I was a friend and an 12 acquaintance not a close. 13 Q. Okay. 14 MR. HUPP: Move to strike. 15 Q. And that you told, did you not, 16:07:56 16 Mr. Margolis, that you would not testify or say 17 anything that might harm Mark Melamud? 18 MR. HUPP: Objection. 19 A. What I would say is -- what I said 20 is that I -- I would not say with absolute 16:08:09 21 certainty that the perforation in and of itself 22 caused the cardiac arrest or the 23 cardiopulmonary arrest that resulted in his 24 death. And I believe I told Mr. Margolis that 25 there were many other possibilities, which I 16:08:31 0060 1 have already said here today. So I would 2 not -- I would not come down on one possibility 3 exclusively as a cause for the cardiopulmonary 4 arrest and that is what I told Mr. Margolis. 5 Q. Okay. But, Doctor, you did not 16:08:46 6 tell Mr. Margolis that the perforation leading 7 to peritonitis was not a possible explanation 8 for his arrest, did you? 9 MR. HUPP: Objection. 10 A. We did not discuss it in that 16:08:57 11 detail. 12 Q. Okay. Well, you told him that you 13 would -- that that was one of a number of 14 possibilities, but you would not come down on 15 any specific cause, correct? 16:09:06 16 A. I said that we would -- 17 MR. HUPP: Objection. 18 A. I maintain impartiality and I've 19 been trying to do that here today. I hope -- 20 nobody is going to be happy entirely with what 16:09:18 21 I have said, and that's the way things usually 22 are. What I said if I recall correctly and 23 what I've said today is that there are many 24 reasons or potential reasons why Mr. Thompson 25 could have had a cardiopulmonary arrest. And I 16:09:36 0061 1 would not say that a perforation in and of 2 itself would have been adequate to produce a 3 cardiopulmonary arrest. 4 Q. Okay. Doctor, would a patient that 5 has a perforation, that develops peritonitis, 16:09:58 6 that develops sepsis, that develops signs and 7 symptoms consistent of SIRS, and you know what 8 SIRS is, don't you? 9 MR. HUPP: Objection. 10 A. No, I don't. 16:10:11 11 Q. Systemic inflammatory response 12 syndrome. You are not familiar with that? 13 MR. HUPP: Objection. 14 A. It's not an area that I'm familiar 15 with. 16:10:17 16 Q. Okay. So as it relates to the 17 pathophysiology of peritonitis and the effects 18 of an inflammatory response from peritonitis, 19 do you know, and if you don't, I'll accept 20 that, but do you know whether or not 16:10:31 21 peritonitis, even localized peritonitis can 22 cause a -- the development of an inflammatory 23 response? 24 MR. HUPP: Objection. 25 A. It is basically beyond my level of 16:10:42 0062 1 competence, I would have to say. 2 MR. MISHKIND: Okay. All right. 3 So -- thank you, Doctor. 4 Off the record for one second. 5 THE VIDEOGRAPHER: Going off the 16:11:08 6 record at 4:10. 7 (Recess taken.) 8 THE VIDEOGRAPHER: We are back on 9 the record at 4:12. 10 MR. MISHKIND: Doctor, I have no 16:12:20 11 further questions for you. Thank you. 12 EXAMINATION OF HAROLD MARS, M.D. 13 BY MR. HUPP: 14 Q. Doctor, just a couple of 15 follow-ups. 16:12:23 16 The EEG that you performed on March 17 23, was not completely normal, correct? 18 A. That is correct. 19 Q. Mr. Thompson was not on Zyban at 20 the time you performed that EEG, was he? 16:12:32 21 MR. MISHKIND: Objection. 22 A. To my knowledge, he was not. 23 Q. There was mention of nocturnal 24 seizures. Do nocturnal seizures occur during 25 the day? 16:12:42 0063 1 MR. MISHKIND: Objection. 2 A. By definition, a nocturnal seizure 3 is something that happens at night. That 4 doesn't necessarily mean that the abnormality 5 in brain activity is restricted to the night. 16:12:52 6 Q. There was mention of a normal 7 neurological exam. Would a normal neurological 8 exam rule out a seizure disorder? 9 A. Yeah. 10 Q. Do patients with seizure disorders 16:13:05 11 routinely present with normal neurological 12 exams? 13 MR. MISHKIND: Objection. 14 A. Correct. 15 Q. Hypothetically, Doctor, can a 16:13:11 16 patient have a fatal seizure and a perforation 17 of his colon? 18 MR. MISHKIND: Objection. Move to 19 strike. 20 A. Would you rephrase that? 16:13:20 21 Q. Okay. In this case we know that 22 Mr. Thompson had a colon perforation at the 23 time of your consult. 24 A. Yes. 25 Q. Does the fact that he had a colon 16:13:27 0064 1 perforation rule out the fact that he could 2 have had a seizure? 3 MR. MISHKIND: Objection. 4 A. No, it does not. 5 MR. MISHKIND: Move to strike. 16:13:34 6 Q. Is there any relation or 7 nonrelation, in your opinion, between -- in 8 your expertise, Doctor, in your experience, can 9 you have a seizure in a patient that also 10 suffers from a colon perforation? 16:13:49 11 MR. MISHKIND: Objection. Move to 12 strike. 13 A. Yes. These could be two separate 14 instances unrelated. 15 MR. MISHKIND: Move to strike. 16:13:59 16 Q. We heard mention that the heart 17 rate that Mr. Thompson was found in is called 18 asystole. I don't think you described what 19 that means, could you? 20 MR. MISHKIND: Objection. Move to 16:14:09 21 strike. 22 A. That would mean that there was no 23 cardiac activity at all. It would be 24 flat-line. I think people understand what 25 flat-line means. 16:14:20 0065 1 Q. Is asystole consistent with being 2 caused by a seizure. 3 MR. MISHKIND: Objection. Move to 4 strike again, just for the record, opinion 5 questions. 16:14:27 6 A. Yes. I believe I already testified 7 that a seizure can affect the heart in two 8 ways; one by slowing the heart or stopping it 9 to beat, secondly, by causing an erratic 10 excessive rate. In either instance it would 16:14:41 11 result in an inadequate flow of blood to the 12 brain. 13 Q. Doctor, is a fatal seizure a sudden 14 event? 15 MR. MISHKIND: Objection. 16:14:49 16 A. Yes. 17 Q. Why is it a sudden event? 18 MR. MISHKIND: Move to strike. 19 A. I actually took the opportunity 20 to -- 16:14:56 21 MR. MISHKIND: Objection. 22 A. -- look this up and the definition 23 is as follows if I may read it -- 24 MR. MISHKIND: Objection. This is 25 a fact witness, Steve. 0066 1 A. That a -- 2 MR. HUPP: Let's let him answer the 3 question and then we'll do it. 4 Q. Go ahead. 5 A. You asked a question about 16:15:11 6 unexpected death in epilepsy. It is termed 7 sudden unexpected death in epilepsy or SUDEP. 8 And the definition of that condition is one 9 that occurs suddenly. It's unexpected, it's 10 nontraumatic, it's nondrowning in an individual 16:15:31 11 with epilepsy witnessed or unwitnessed in which 12 postmortem examination does not reveal an 13 anatomic or toxicological cause for the death. 14 MR. MISHKIND: Objection. Move to 15 strike. 16:15:50 16 Q. Doctor, can a patient suffer a 17 fatal seizure as a sudden event in your 18 experience? 19 MR. MISHKIND: Objection. 20 A. Yes. 16:15:55 21 MR. HUPP: I have nothing further. 22 MR. MISHKIND: I'm just going to -- 23 in light of the opinion questions and again, 24 based upon my initial objection in terms of the 25 opinion questions, obviously I'm here to 16:16:05 0067 1 cross-examine the Witness but I still move, 2 based on the objection. 3 EXAMINATION OF HAROLD MARS, M.D. 4 BY MR. MISHKIND: 5 Q. But Doctor, we can agree that SUDEP 16:16:10 6 is a diagnosis of exclusion, correct? 7 A. Yes. 8 Q. Okay. And someone that would say 9 that it's not a diagnosis of exclusion would be 10 basically misleading people, correct? 16:16:22 11 MR. HUPP: Objection. 12 A. Correct. 13 Q. All right. And Doctor, in terms of 14 the anatomical explanation for the death, if 15 there is an anatomical or toxicological cause 16:16:32 16 for the death, then SUDEP is not 17 appropriately -- appropriate to be applied, 18 correct? 19 MR. HUPP: Objection. 20 A. It depends what is meant by an 16:16:40 21 anatomical cause. For example, if an 22 individual were to have a sudden hemorrhage 23 within the brain, would be an anatomical cause. 24 But other than that, I'm not really sure what 25 that means. 16:16:53 0068 1 Q. Well, if a patient has a -- if the 2 cause of death is related by the coroner to 3 being cardiopulmonary arrest following a 4 colonoscopy and polypectomy with perforation 5 and acute peritonitis, can we agree that that 16:17:12 6 is a anatomical explanation for the cause of 7 death? 8 MR. HUPP: Objection. Move to 9 strike. 10 A. No, I'm not sure you can. You can 16:17:22 11 say that there -- that these occurred in 12 association with each other, but whether the 13 perforation in the bowel and the resultant 14 peritonitis is the cause for the seizure, per 15 se, in exclusion of the other things we have 16:17:41 16 already talked about today, okay, is 17 questionable. So yes, the patient had a 18 perforation; there is no question. Had air in 19 the bowel, in the abdomen; there is no question 20 about that. There is no question that it would 16:17:57 21 trigger a peritonitis type of response; no 22 question about that. My only question would be 23 whether this was associated with secondary 24 parameters that could trigger a cardiopulmonary 25 arrest. 16:18:12 0069 1 Q. And certainly you would defer to 2 someone that's more familiar with 3 pathophysiology as it relates to peritonitis, 4 correct? 5 MR. HUPP: Objection. 16:18:21 6 A. Yes, but there is one problem. The 7 problem is that when we are talking about 8 epilepsy, we are talking about a physiological 9 occurrence, something that is electrical. It 10 is transient. It's the light switch turning on 16:18:33 11 and off that I talked about a little while ago. 12 The anatomical report is one that is structure 13 based. What was the anatomic situation at the 14 time the pathologist was looking at the tissue? 15 It has no relevance at all to the physiologic 16:18:57 16 activity that existed at the time of the 17 seizure or the cardiopulmonary arrest. 18 Q. We have no evidence, no 19 physiological evidence that you can point to to 20 say that he, in fact, did have a seizure on 16:19:10 21 April 15 that caused him to arrest, correct? 22 A. No. The only way to be 100 percent 23 sure if he were being monitored at the time or 24 something of that sort. 25 Q. I'll repeat my question, Doctor. 16:19:25 0070 1 There is no physiological evidence that you 2 have to substantiate that he had a seizure that 3 caused him to arrest in this case, true? 4 MR. HUPP: Objection. Asked and 5 answered. 16:19:36 6 A. Right. We have no evidence for an 7 EEG at the time. 8 MR. HUPP: Thank you. I have no 9 further questions. 10 MR. MISHKIND: Nothing further. 16:19:40 11 THE VIDEOGRAPHER: Going off the 12 record at 4:19 p.m. 13 (The deposition concluded at 4:19 p.m.) 14 - - - - - 15 16 17 18 19 20 21 22 23 24 25 0071 1 CERTIFICATE 2 The State of Ohio, ) 3 SS: 4 County of Cuyahoga. ) 5 6 I, Eva Petrone, a Notary Public 7 within and for the State of Ohio, duly 8 commissioned and qualified, do hereby certify 9 that the within named witness, HAROLD MARS, 10 M.D., was by me first duly sworn to testify the 11 truth, the whole truth and nothing but the 12 truth in the cause aforesaid; that the 13 testimony then given by the above-referenced 14 witness was by me reduced to stenotypy in the 15 presence of said witness; afterwards 16 transcribed, and that the foregoing is a true 17 and correct transcription of the testimony so 18 given by the above-referenced witness. 19 I do further certify that this 20 deposition was taken at the time and place in 21 the foregoing caption specified and was 22 completed without adjournment. 23 24 25 0072 1 I do further certify that I am not 2 a relative, counsel or attorney for either 3 party, or otherwise interested in the event of 4 this action. 5 IN WITNESS WHEREOF, I have hereunto 6 set my hand and affixed my seal of office at 7 Cleveland, Ohio, on this ________ day of 8 ___________________, 2008. 9 10 11 12 13 ________________________________ 14 Eva Petrone, Notary Public 15 within and for the State of Ohio 16 17 My commission expires February 1, 2013. 18 19 20 21 22 23 24 25 0073 1 SIGNATURE OF WITNESS 2 3 4 5 6 The deposition of HAROLD MARS, 7 M.D., taken in the matter, on the date, and at 8 the time and place set out on the title page 9 hereof. 10 It was requested that the 11 deposition be taken by the reporter and that 12 same be reduced to typewritten form. 13 It was agreed by and between 14 counsel and the parties that the Deponent will 15 read and sign the transcript of said 16 deposition. 17 18 19 20 21 22 23 24 25 0074 1 AFFIDAVIT 2 The State of Ohio, ) 3 ) SS: 4 County of Cuyahoga ) 5 6 7 8 Before me, a Notary Public in and for 9 said County and State, personally appeared 10 HAROLD MARS, M.D., who acknowledged that he/she 11 did read his/her transcript in the 12 above-captioned matter, listed any necessary 13 corrections on the accompanying errata sheet, 14 and did sign the foregoing sworn statement and 15 that the same is his/her free act and deed. 16 In the TESTIMONY WHEREOF, I have hereunto 17 affixed my name and official seal at this______ 18 day of _____________________ A.D 2008. 19 20 ________________________ 21 Notary Public 22 23 _________________________ 24 My Commission Expires: 25 0075 1 DEPOSITION ERRATA SHEET 2 3 RE: C. JEAN THOMPSON, etc. -v- MARK 4 MELAMUD, M.D., et al. 5 6 Job No.: 17584 7 Deponent: HAROLD MARS, M.D. 8 Deposition Date: NOVEMBER 17, 2008 9 10 To the Reporter: 11 I have read the entire transcript of my 12 Deposition taken in the captioned matter or the 13 same has been read to me. I request that the 14 following changes be entered upon the record 15 for the reasons indicated. I have signed my 16 name to the Errata Sheet and the appropriate 17 Certificate and authorize you to attach both to 18 the original transcript. 19 20 21 22 23 _________________________________ 24 HAROLD MARS, M.D. 25